[Title 12 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1997 Edition]
[From the U.S. Government Printing Office]


          12



          Banks and Banking



[[Page i]]

          PARTS 220 TO 299

          Revised as of January 1, 1997
          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF JANUARY 1, 1997
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1997



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 12:
    Chapter II--Federal Reserve System (Continued)............       3
  Finding Aids:
    Table of CFR Titles and Chapters..........................     803
    Alphabetical List of Agencies Appearing in the CFR........     819
    List of CFR Sections Affected.............................     829

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                                  ----------------------------------------------------------                    

   Cite this Code:  CFR                                                         
                                                                                                                
   To cite the regulations in this volume use title, part                       
   and section number. Thus, 12 CFR 220.1 refers to title                      
   12, part 220, section 1.                                                    
                                  ----------------------------------------------------------                    
                                                                                                                


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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 1997), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.
SALES
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                              Richard L. Claypoole,
                                    Director,
                          Office of the Federal Register.

January 1, 1997.



[[Page vii]]



                               THIS TITLE

    Title 12--Banks and Banking is composed of six volumes. The parts in 
these volumes are arranged in the following order: parts 1-199, 200-219, 
220-299, 300-499, 500-599, and part 600-end. The first volume containing 
parts 1-199 is comprised of chapter I--Comptroller of the Currency, 
Department of the Treasury. The second and third volumes containing 
parts 200-299 are comprised of chapter II--Federal Reserve System. The 
fourth volume containing parts 300-499 is comprised of chapter III--
Federal Deposit Insurance Corporation and chapter IV--Export-Import Bank 
of the United States. The fifth volume containing parts 500-599 is 
comprised of chapter V--Office of Thrift Supervision, Department of the 
Treasury. The sixth volume containing part 600-end is comprised of 
chapter VI--Farm Credit Administration, chapter VII--National Credit 
Union Administration, chapter VIII--Federal Financing Bank, chapter IX--
Federal Housing Finance Board, chapter XI--Federal Financial 
Institutions Examination Council, chapter XIV--Farm Credit System 
Insurance Corporation, chapter XV--Thrift Depositor Protection Oversight 
Board, chapter XVII--Office of Federal Housing Enterprise Oversight, 
Department of Housing and Urban Development and chapter XVIII--Community 
Development Financial Institutions Fund, Department of the Treasury. The 
contents of these volumes represent all of the current regulations 
codified under this title of the CFR as of January 1, 1997.

    Redesignation tables appear in the volumes containing parts 1-199, 
parts 300-499, parts 500-599, and part 600-end.

    For this volume, Brian Swidal was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

[[Page viii]]



 
[[Page 1]]



                       TITLE 12--BANKS AND BANKING




                  (This book contains parts 220 to 299)

  --------------------------------------------------------------------

                                                                    Part
Chapter ii--Federal Reserve System (Continued)..............         220

Cross References: Farmers Home Administration: See Agriculture, 7 CFR, 
  chapter XVIII.
Office of Assistant Secretary for Housing--Federal Housing Commissioner, 
  Department of Housing and Urban Development: See Housing and Urban 
  Development, 24 CFR, chapter II.
Fiscal Service: See Money and Finance: Treasury, 31 CFR, chapter II.
Monetary Offices: See Money and Finance: Treasury, 31 CFR, chapter I.
Commodity Credit Corporation: See Agriculture, 7 CFR, chapter XIV.
Small Business Administration: See Business Credit and Assistance, 13 
  CFR, chapter I.
Rural Electrification Administration: See Agriculture, 7 CFR, chapter 
  XVII.

[[Page 3]]



                   CHAPTER II--FEDERAL RESERVE SYSTEM




  --------------------------------------------------------------------

     SUBCHAPTER A--BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM

Part                                                                Page
220             Credit by brokers and dealers (Regulation T)           5
221             Credit by banks for the purpose of 
                    purchasing or carrying margin stock 
                    (Regulation U)..........................          38
224             Borrowers of securities credit (Regulation 
                    X)......................................          56
225             Bank holding companies and change in bank 
                    control (Regulation Y)..................          57
226             Truth in lending (Regulation Z).............         185
227             Unfair or deceptive acts or practices 
                    (Regulation AA).........................         425
228             Community reinvestment (Regulation BB)......         428
229             Availability of funds and collection of 
                    checks (Regulation CC)..................         451
230             Truth in Savings (Regulation DD)............         554
231             Netting eligibility for financial 
                    institutions regulation EE..............         589
250             Miscellaneous interpretations...............         590
261             Rules regarding availability of information.         630
261a            Rules regarding access to personal 
                    information Under the Privacy Act of 
                    1974....................................         649
261b            Rules regarding public observation of 
                    meetings................................         655
262             Rules of procedure..........................         660
263             Rules of practice for hearings..............         668
264             Employee responsibilities and conduct.......         710
264a            Reserve Bank directors--actions and 
                    responsibilities........................         710
264b            Rules regarding foreign gifts and 
                    decorations.............................         714
265             Rules regarding delegation of authority.....         716
266             Limitations on activities of former members 
                    and employees of the Board..............         733
267             Rules of organization and procedure of the 
                    Consumer Advisory Council...............         735
268             Rules regarding equal opportunity...........         737
269             Policy on labor relations for the Federal 
                    Reserve banks...........................         774

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269a            Definitions.................................         779
269b            Charges of unfair labor practices...........         779
               SUBCHAPTER B--FEDERAL OPEN MARKET COMMITTEE

270             Open market operations of Federal Reserve 
                    banks...................................         789
271             Rules regarding availability of information.         790
272             Rules of procedure..........................         796
281             Statements of policy........................         798
       SUBCHAPTER C--FEDERAL RESERVE SYSTEM LABOR RELATIONS PANEL
290-299  [Reserved]

Supplemental Publications: The Federal Reserve Act, as amended through 
    December 31, 1976, with an Appendix containing provisions of certain 
    other statutes affecting the Federal Reserve System. Rules of 
    Organization and Procedure--Board of Governors of the Federal 
    Reserve System. Regulations of the Board of Governors of the Federal 
    Reserve System. The Federal Reserve System--Purposes and Functions. 
    Annual Report. Federal Reserve Bulletin. Monthly. Federal Reserve 
    Chart Book Quarterly; Historical Chart Book issued in September.

[[Page 5]]



     SUBCHAPTER A--BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM





PART 220--CREDIT BY BROKERS AND DEALERS (REGULATION T)--Table of Contents




Sec.
220.1  Authority, purpose, and scope.
220.2  Definitions.
220.3  General provisions.
220.4  Margin account.
220.5  Special memorandum account.
220.6  Government securities account.
220.7  Arbitrage account.
220.8  Cash account.
220.9  Nonsecurities credit and employee stock ownership account.
220.10  Omnibus account.
220.11  Broker-dealer credit account.
220.12  Market functions account.
220.13  Arranging for loans by others.
220.14  Clearance of securities, options, and futures.
220.15  Borrowing by creditors.
220.16  Borrowing and lending securities.
220.17  Requirements for the list of marginable OTC stocks and the list 
          of foreign margin stocks.
220.18  Supplement: Margin requirements.

                             Interpretations

220.101  Transactions of customers who are brokers or dealers.
220.102  [Reserved]
220.103  Borrowing of securities.
220.104  [Reserved]
220.105  Ninety-day rule in special cash account.
220.106  [Reserved]
220.107  [Reserved]
220.108  International Bank Securities.
220.109  [Reserved]
220.110  Assistance by Federal credit union to its members.
220.111  Arranging for extensions of credit to be made by a bank.
220.112  [Reserved]
220.113  Necessity for prompt payment and delivery in special cash 
          accounts.
220.114  [Reserved]
220.115  [Reserved]
220.116  [Reserved]
220.117  Exception to 90-day rule in special cash account.
220.118  Time of payment for mutual fund shares purchased in a special 
          cash account.
220.119  Applicability of margin requirements to credit extended to 
          corporation in connection with retirement of stock.
220.120  [Reserved]
220.121  Applicability of margin requirements to joint account between 
          two creditors.
220.122  ``Deep in the money put and call options'' as extensions of 
          credit.
220.123  Partial delayed issue contracts covering nonconvertible bonds.
220.124  Installment sale of tax-shelter programs as ``arranging'' for 
          credit.
220.125  [Reserved]
220.126  Put and call options.
220.127  Independent broker/dealers arranging credit in connection with 
          the sale of insurance premium funding programs.
220.128  Treatment of simultaneous long and short positions in the same 
          margin account when put or call options or combinations 
          thereof on such stock are also outstanding in the account.
220.129  [Reserved]
220.130  [Reserved]
220.131  Application of the arranging section to broker-dealer 
          activities under SEC Rule 144A.
220.132  Credit to brokers and dealers.

    Authority: 15 U.S.C. 78c, 78g, 78q, and 78w.

    Source: Regulation T, Secs. 220.1 through 220.18 appear at 48 FR 
23165, May 24, 1983, unless otherwise noted.

    Editorial Notes: (1) A copy of each form referred to in this part is 
filed as a part of the original document. Copies are available upon 
request to the Board of Governors of the Federal Reserve System or any 
Federal Reserve Bank.



Sec. 220.1  Authority, purpose, and scope.

    (a) Authority and purpose. Regulation T (this part) is issued by the 
Board of Governors of the Federal Reserve System (the Board) pursuant to 
the Securities Exchange Act of 1934 (the Act) (15 U.S.C. 78a et seq.). 
Its principal purpose is to regulate extensions of credit by and to 
brokers and dealers; it also covers related transactions within the 
Board's authority under the Act. It imposes, among other obligations, 
initial margin requirements and payment rules on securities 
transactions.
    (b) Scope. (1) This part provides a margin account and eight special 
purpose accounts in which to record all financial relations between a 
customer and a creditor. Any transaction not specifically permitted in a 
special account shall be recorded in a margin account.

[[Page 6]]

    (2) This part does not preclude any exchange, national securities 
association, or creditor from imposing additional requirements or taking 
action for its own protection.
    (3) This part does not apply to transactions between a customer and 
a broker or dealer registered only under section 15C of the Act.

[Reg T, 61 FR 20390, May 6, 1996]



Sec. 220.2  Definitions.

    The terms used in this part have the meanings given them in section 
3(a) of the Act or as defined in this section.
    Cash equivalent means securities issued or guaranteed by the United 
States or its agencies, negotiable bank certificates of deposit, bankers 
acceptances issued by banking institutions in the United States and 
payable in the United States, or money market mutual funds.
    Covered option transaction means:
    (1) In the case of a short call, the underlying asset (or a security 
immediately convertible into the underlying asset, without the payment 
of money) is held in or purchased for the account on the same day, and 
the option premium is held in the account until cash payment for the 
underlying asset or convertible security is received; or
    (2) In the case of a short put, the creditor obtains cash in an 
amount equal to the exercise price or holds in the account cash 
equivalents with a current market value at least equal to the exercise 
price and, except in the case of money market mutual funds, with one 
year or less to maturity; or
    (3) In the case of a short put or short call, the creditor verifies 
that the appropriate escrow agreement will be delivered to the creditor 
promptly and the option premium is held in the account until such 
delivery is made; or
    (4) Beginning June 1, 1997, any other transaction involving options 
or warrants in which the customer's risk is limited and all elements of 
the transaction are subject to contemporaneous exercise if:
    (i) the amount at risk is held in the account in cash, cash 
equivalents, or via an escrow receipt; and
    (ii) the transaction is eligible for the cash account by the rules 
of the registered national securities exchange authorized to trade the 
option or warrant or by the rules of the creditor's examining authority 
in the case of an unregistered option, provided that all such rules have 
been approved or amended by the SEC.
    Credit balance means the cash amount due the customer in a margin 
account after debiting amounts transferred to the special memorandum 
account.
    Creditor means any broker or dealer (as defined in sections 3(a)(4) 
and 3(a)(5) of the Act), any member of a national securities exchange, 
or any person associated with a broker or dealer (as defined in section 
3(a)(18) of the Act), except for business entities controlling or under 
common control with the creditor.
    Customer includes:
    (1) Any person or persons acting jointly:
    (i) To or for whom a creditor extends, arranges, or maintains any 
credit; or
    (ii) who would be considered a customer of the creditor according to 
the ordinary usage of the trade;
    (2) Any partner in a firm who would be considered a customer of the 
firm absent the partnership relationship; and
    (3) Any joint venture in which a creditor participates and which 
would be considered a customer of the creditor if the creditor were not 
a participant.
    Debit balance means the cash amount owed to the creditor in a margin 
account after debiting amounts transferred to the special memorandum 
account.
    Delivery against payment, Payment against delivery, or a C.O.D. 
transaction refers to an arrangement under which a creditor and a 
customer agree that the creditor will deliver to, or accept from, the 
customer, or the customer's agent, a security against full payment of 
the purchase price.
    Equity means the total current market value of security positions 
held in the margin account plus any credit balance less the debit 
balance in the margin account.
    Escrow agreement means any agreement issued in connection with a 
call or put option under which a bank or any person designated as a 
control location under paragraph (c) of SEC Rule 15c3-3 (17 CFR 
240.15c3-3(c)), holding

[[Page 7]]

the underlying asset or required cash or cash equivalents, is obligated 
to deliver to the creditor (in the case of a call option) or accept from 
the creditor (in the case of a put option) the underlying asset or 
required cash or cash equivalent against payment of the exercise price 
upon exercise of the call or put.
    Examining authority means:
    (1) The national securities exchange or national securities 
association of which a creditor is a member; or
    (2) If a member of more than one self-regulatory organization, the 
organization designated by the SEC as the examining authority for the 
creditor.
    Exempted securities mutual fund means any security issued by an 
investment company registered under section 8 of the Investment Company 
Act of 1940 (15 U.S.C. 80a-8), provided the company has at least 95 
percent of its assets continuously invested in exempted securities (as 
defined in section 3(a)(12) of the Act).
    Foreign margin stock means a foreign security that is an equity 
security and that appears on the Board's periodically published List of 
Foreign Margin Stocks.
    Foreign person means a person other than a United States person as 
defined in section 7(f) of the Act.
    Foreign security means a security issued in a jurisdiction other 
than the United States.
    Good faith margin means the amount of margin which a 
creditor,exercising sound credit judgment, would customarily require for 
a specified security position and which is established without regard to 
the customer's other assets or securities positions held in connection 
with unrelated transactions.
    In or at the money means, until June 1, 1997, the current market 
price of the underlying security is not more than one standard exercise 
interval below (with respect to a call option) or above (with respect to 
a put option) the exercise price of the option.
    In the money means the current market price of the underlying asset 
or index is not below (with respect to a call option) or above (with 
respect to a put option) the exercise price of the option.
    Margin call means a demand by a creditor to a customer for a deposit 
of additional cash or securities to eliminate or reduce a margin 
deficiency as required under this part.
    Margin deficiency means the amount by which the required margin 
exceeds the equity in the margin account.
    Margin excess means the amount by which the equity in the margin 
account exceeds the required margin. When the margin excess is 
represented by securities, the current value of the securities is 
subject to the percentages set forth in Sec. 220.18 (the Supplement).
    Margin security means:
    (1) Any registered security;
    (2) Any OTC margin stock;
    (3) Any OTC margin bond;
    (4) Any OTC security designated as qualified for trading in the 
National Market System under a designation plan approved by the 
Securities and Exchange Commission (NMS security);
    (5) Any security issued by either an open-end investment company or 
unit investment trust which is registered under section 8 of the 
Investment Company Act of 1940 (15 U.S.C. 80a-8);
    (6) Any foreign margin stock; or
    (7) Any debt security convertible into a margin security.
    Money market mutual fund means any security issued by an investment 
company registered under section 8 of the Investment Company Act of 1940 
(15 U.S.C. 80a-8) that is considered a money market fund under SEC Rule 
2a--7 (17 CFR 270.2a-7).
    Nonexempted security means any security other than an exempted 
security (as defined in section 3(a)(12) of the Act).
    Nonmember bank means a bank that is not a member of the Federal 
Reserve System.
    Non-U.S. traded foreign security means a foreign security that is 
neither a registered security nor one listed on NASDAQ.
    OTC margin bond means:
    (1) A debt security not traded on a national securities exchange 
which meets all of the following requirements:
    (i) At the time of the original issue, a principal amount of not 
less than $25,000,000 of the issue was outstanding;

[[Page 8]]

    (ii) The issue was registered under section 5 of the Securities Act 
of 1933 (15 U.S.C. 77e) and the issuer either files periodic reports 
pursuant to section 13(a) or 15(d) of the Act or is an insurance company 
which meets all of the conditions specified in section 12(g)(2)(G) of 
the Act; and
    (iii) At the time of the extension of credit, the creditor has a 
reasonable basis for believing that the issuer is not in default on 
interest or principal payments; or
    (2) A private pass-through security (not guaranteed by an agency of 
the U.S. government) meeting all of the following requirements:
    (i) An aggregate principal amount of not less than $25,000,000 
(which may be issued in series) was issued pursuant to a registration 
statement filed with the SEC under section 5 of the Securities Act of 
1933 (15 U.S.C. 77e);
    (ii) Current reports relating to the issue have been filed with the 
SEC; and
    (iii) At the time of the credit extension, the creditor has a 
reasonable basis for believing that mortgage interest, principal 
payments and other distributions are being passed through as required 
and that the servicing agent is meeting its material obligations under 
the terms of the offering; or
    (3) A mortgage related security as defined in section 3(a)(41) of 
the Act; or
    (4) A debt security issued or guaranteed as a general obligation by 
the government of a foreign country, its provinces, states, or cities, 
or a supranational entity, if at the time of the extension of credit one 
of the following is rated in one of the two highest rating categories by 
a nationally recognized statistical rating organization:
    (i) The issue;
    (ii) The issuer or guarantor (implicitly); or
    (iii) Other outstanding unsecured long-term debt securities issued 
or guaranteed by the government or entity; or
    (5) A foreign security that is a nonconvertible debt security that 
meets all of the following requirements:
    (i) At the time of original issue, a principal amount of at least 
$100,000,000 was outstanding;
    (ii) At the time of the extension of credit, the creditor has a 
reasonable basis for believing that the issuer is not in default on 
interest or principal payments; and
    (iii) At the time of the extension of credit, the issue is rated in 
one of the two highest rating categories by a nationally recognized 
statistical rating organization; or
    (6) Any nonconvertible debt security that meets all of the following 
requirements:
    (i) At the time of the extension of credit, the creditor has a 
reasonable basis for believing that the issuer is not in default on 
interest or principal payments; and
    (ii) At the time of the extension of credit, the issue is rated in 
one of the four highest rating categories by a nationally recognized 
statistical rating organization.
    OTC margin stock means any equity security traded over-the-counter 
that the Board has determined has the degree of national investor 
interest, the depth and breadth of market, the availability of 
information respecting the security and its issuer, and the character 
and permanence of the issuer to warrant being treated like an equity 
security traded on a national securities exchange. An OTC stock is not 
considered to be an OTC margin stock unless it appears on the Board's 
periodically published list of OTC margin stocks.
    Overlying option means:
    (1) A put option purchased or a call option written against a long 
position in an underlying asset in the specialist record in 
Sec. 220.12(b); or
    (2) A call option purchased or a put option written against a short 
position in an underlying asset in the specialist record in 
Sec. 220.12(b).
    Payment period means the number of business days in the standard 
securities settlement cycle in the United States, as defined in 
paragraph (a) of SEC Rule 15c6-1 (17 CFR 240.15c6-1(a)), plus two 
business days.
    Permitted offset position means, in the case of an option in which a 
specialist makes a market, a position in the underlying asset or other 
related assets, and in the case of other securities in which a 
specialist makes a market, a position in options overlying the 
securities in which a specialist makes a market, provided the positions 
qualify

[[Page 9]]

as permitted offsets under the rules of the national securities exchange 
with which the specialist is registered, and further provided all such 
rules have been approved or amended by the SEC. Until June 1, 1997, 
permitted offsets are determined by reference to section 220.12(b)(6).
    Purpose credit means credit for the purpose of:
    (1) Buying, carrying, or trading in securities; or
    (2) Buying or carrying any part of an investment contract security 
which shall be deemed credit for the purpose of buying or carrying the 
entire security.
    Registered security means any security that:
    (1) Is registered on a national securities exchange; or
    (2) Has unlisted trading privileges on a national securities 
exchange.
    Short call or short put means a call option or a put option that is 
issued, endorsed, or guaranteed in or for an account.
    (1) A short call that is not cash-settled obligates the customer to 
sell the underlying asset at the exercise price upon receipt of a valid 
exercise notice or as otherwise required by the option contract.
    (2) A short put that is not cash-settled obligates the customer to 
purchase the underlying asset at the exercise price upon receipt of a 
valid exercise notice or as otherwise required by the option contract.
    (3) A short call or a short put that is cash-settled obligates the 
customer to pay the holder of an in the money long put or long call who 
has, or has been deemed to have, exercised the option the cash 
difference between the exercise price and the current assigned value of 
the option as established by the option contract.
    Specialist joint account means an account which, by written 
agreement, provides for the commingling of the security positions of the 
participants and a sharing of profits and losses from the account on 
some predetermined ratio.
    Underlying asset means:
    (1) the security or other asset that will be delivered upon exercise 
of an option; or
    (2) In the case of a cash-settled option, the securities or other 
assets which comprise the index or other measure from which the option's 
value is derived.

[Reg. T, 61 FR 20390, May 6, 1996]



Sec. 220.3  General provisions.

    (a) Records. The creditor shall maintain a record for each account 
showing the full details of all transactions.
    (b) Separation of accounts. Except as provided for in the margin 
account and the special memorandum account, the requirements of an 
account may not be met by considering items in any other account. If 
withdrawals of cash or securities are permitted under the regulation, 
written entries shall be made when cash or securities are used for 
purposes of meeting requirements in another account.
    (c) Maintenance of credit. Except as prohibited by this part, any 
credit initially extended in compliance with this part may be maintained 
regardless of:
    (1) Reductions in the customer's equity resulting from changes in 
market prices;
    (2) Any security in an account ceasing to be margin or exempted; or
    (3) Any change in the margin requirements prescribed under this 
part.
    (d) Guarantee of accounts. No guarantee of a customer's account 
shall be given any effect for purposes of this part.
    (e) Receipt of funds or securities. (1) A creditor, acting in good 
faith, may accept as immediate payment:
    (i) Cash or any check, draft, or order payable on presentation; or
    (ii) Any security with sight draft attached.
    (2) A creditor may treat a security, check or draft as received upon 
written notification from another creditor that the specified security, 
check, or draft has been sent.
    (3) Upon notification that a check, draft, or order has been 
dishonored or when securities have not been received within a reasonable 
time, the creditor shall take the action required by this part when 
payment or securities are not received on time.
    (4) To temporarily finance a customer's receipt of securities 
pursuant to an employee benefit plan registered

[[Page 10]]

on SEC Form S-8 or the withholding taxes for an employee stock award 
plan, a creditor may accept, in lieu of the securities, a properly 
executed exercise notice, where applicable, and instructions to the 
issuer to deliver the stock to the creditor. Prior to acceptance, the 
creditor must verify that the issuer will deliver the securities 
promptly and the customer must designate the account into which the 
securities are to be deposited.
    (f) Exchange of securities. (1) To enable a customer to participate 
in an offer to exchange securities which is made to all holders of an 
issue of securities, a creditor may submit for exchange any securities 
held in a margin account, without regard to the other provisions of this 
part, provided the consideration received is deposited into the account.
    (2) If a nonmargin, nonexempted security is acquired in exchange for 
a margin security, its retention, withdrawal, or sale within 60 days 
following its acquisition shall be treated as if the security is a 
margin security.
    (g) Valuing securities. The current market value of a security shall 
be determined as follows:
    (1) Throughout the day of the purchase or sale of a security, the 
creditor shall use the security's total cost of purchase or the net 
proceeds of its sale including any commissions charged.
    (2) At any other time, the creditor shall use the closing sale price 
of the security on the preceding business day, as shown by any regularly 
published reporting or quotation service. If there is no closing price, 
the creditor may use any reasonable estimate of the market value of the 
security as of the close of business on the preceding business day.
    (h) Innocent mistakes. If any failure to comply with this part 
results from a mistake made in good faith in executing a transaction or 
calculating the amount of margin, the creditor shall not be deemed in 
violation of this part if, promptly after the discovery of the mistake, 
the creditor takes appropriate corrective action.
    (i) Foreign currency. Freely convertible foreign currency may be 
treated at its U.S. dollar equivalent, provided the currency is marked-
to-market daily.

[Reg. T, 61 FR 20392, May 6, 1996]



Sec. 220.4  Margin account.

    (a) Margin transactions. (1) All transactions not specifically 
authorized for inclusion in another account shall be recorded in the 
margin account.
    (2) A creditor may establish separate margin accounts for the same 
person to:
    (i) Clear transactions for other creditors where the transactions 
are introduced to the clearing creditor by separate creditors; or
    (ii) Clear transactions through other creditors if the transactions 
are cleared by separate creditors; or
    (iii) Provide one or more accounts over which the creditor or a 
third party investment adviser has investment discretion.
    (b) Required margin--(1) Applicability. The required margin for each 
long or short position in securities is set forth in Sec. 220.18 (the 
Supplement) and is subject to the following exceptions and special 
provisions.
    (2) Short sale against the box. A short sale ``against the box'' 
shall be treated as a long sale for the purpose of computing the equity 
and the required margin.
    (3) When-issued securities. The required margin on a net long or net 
short commitment in a when-issued security is the margin that would be 
required if the security were an issued margin security, plus any 
unrealized loss on the commitment or less any unrealized gain.
    (4) Stock used as cover. (i) When a short position held in the 
account serves in lieu of the required margin for a short put, the 
amount prescribed by paragraph (b)(1) of this section as the amount to 
be added to the required margin in respect of short sales shall be 
increased by any unrealized loss on the position.
    (ii) When a security held in the account serves in lieu of the 
required margin for a short call, the security shall be valued at no 
greater than the exercise price of the short call.
    (5) Accounts of partners. If a partner of the creditor has a margin 
account with the creditor, the creditor shall disregard the partner's 
financial relations

[[Page 11]]

with the firm (as shown in the partner's capital and ordinary drawing 
accounts) in calculating the margin or equity of the partner's margin 
account.
    (6) Contribution to joint venture. If a margin account is the 
account of a joint venture in which the creditor participates, any 
interest of the creditor in the joint account in excess of the interest 
which the creditor would have on the basis of its right to share in the 
profits shall be treated as an extension of credit to the joint account 
and shall be margined as such.
    (7) Transfer of accounts. (i) A margin account that is transferred 
from one creditor to another may be treated as if it had been maintained 
by the transferee from the date of its origin, if the transferee 
accepts, in good faith, a signed statement of the transferor (or, if 
that is not practicable, of the customer), that any margin call issued 
under this part has been satisfied.
    (ii) A margin account that is transferred from one customer to 
another as part of a transaction, not undertaken to avoid the 
requirements of this part, may be treated as if it had been maintained 
for the transferee from the date of its origin, if the creditor accepts 
in good faith and keeps with the transferee account a signed statement 
of the transferor describing the circumstances for the transfer.
    (8) Credit denominated in foreign currency. A creditor may extend 
credit denominated in any freely convertible foreign currency.
    (9) Options. The following provisions are in force until June 1, 
1997:
    (i) Margin or cover for options on exempted debt securities, 
certificates of deposit, stock indices, or securities exchange traded 
options on foreign currencies. The required margin for each transaction 
involving any short put or short call on an exempted debt security, 
certificate of deposit, stock index, or foreign currency (if the option 
is traded on a securities exchange), shall be the amount or position in 
lieu of margin set forth in Sec. 220.18 (the Supplement).
    (ii) Margin for options on equity securities. The required margin 
for each transaction involving any short put or short call on an equity 
security shall be the amount set forth in Sec. 220.18 (the Supplement).
    (iii) Cover or positions in lieu of margin. No margin is required 
for an option written on an equity security position when the account 
holds any of the following:
    (A) The underlying asset in the case of a short call, or a short 
position in the underlying asset in the case of a short put;
    (B) Securities immediately convertible into or exchangeable for the 
underlying asset without the payment of money in the case of a short 
call, if the right to convert or exchange does not expire on or before 
the expiration date of the short call;
    (C) An escrow agreement for the underlying security or foreign 
exchange (in the case of a short call) or cash (in the case of a short 
put);
    (D) A long call on the same number of shares of the same underlying 
asset if the long call does not expire before the expiration date of the 
short call, and if the amount (if any), by which the exercise price of 
the long call exceeds the exercise price of the short call is deposited 
in the account;
    (E) A long put on the same number of shares of the same underlying 
asset if the long put does not expire before the expiration date of the 
short put, and if the amount (if any), by which the exercise price of 
the short put exceeds the exercise price of the long put is deposited in 
the account;
    (F) A warrant to purchase the underlying asset, in the case of a 
short call, if the warrant does not expire on or before the expiration 
date of the short call, and if the amount (if any), by which the 
exercise price of the short call is deposited in the account. A warrant 
used in lieu of the required margin under this provision shall 
contribute no equity to the account.
    (iv) Straddles. When both a short put and a short call are in a 
margin account on the same number of shares of the same underlying 
security, the required margin shall be the margin on either the short 
put of the short call, whichever is greater, plus any unrealized loss on 
the other option.
    (v) Exclusive designation. The customer may designate at the time 
the option order is entered which security position held in the account 
is to serve in lieu of the required margin, if such

[[Page 12]]

service is offered by the creditor; or the customer may have a standing 
agreement with the creditor as to the method to be used for determining 
on any given day which security position will be used in lieu of the 
margin to support an option transaction. Any security held in the 
account which serves in lieu of the required margin for a short put or a 
short call shall be unavailable to support any other option transaction 
in the account.
    (c) When additional margin is required--(1) Computing deficiency. 
All transactions on the same day shall be combined to determine whether 
additional margin is required by the creditor. For the purpose of 
computing equity in an account, security positions are established or 
eliminated and a credit or debit created on the trade date of a security 
transaction. Additional margin is required on any day when the day's 
transactions create or increase a margin deficiency in the account and 
shall be for the amount of the margin deficiency so created or 
increased.
    (2) Satisfaction of deficiency. The additional required margin may 
be satisfied by a transfer from the special memorandum account or by a 
deposit of cash, margin securities, exempted securities, or any 
combination thereof.
    (3) Time limits. (i) A margin call shall be satisfied within one 
payment period after the margin deficiency was created or increased.
    (ii) The payment period may be extended for one or more limited 
periods upon application by the creditor to its examining authority 
unless the examining authority believes that the creditor is not acting 
in good faith or that the creditor has not sufficiently determined that 
exceptional circumstances warrant such action. Applications shall be 
filed and acted upon prior to the end of the payment period or the 
expiration of any subsequent extension.
    (4) Satisfaction restriction. Any transaction, position, or deposit 
that is used to satisfy one requirement under this part shall be 
unavailable to satisfy any other requirement.
    (d) Liquidation in lieu of deposit. If any margin call is not met in 
full within the required time, the creditor shall liquidate securities 
sufficient to meet the margin call or to eliminate any margin deficiency 
existing on the day such liquidation is required, whichever is less. If 
the margin deficiency created or increased is $1000 or less, no action 
need be taken by the creditor.
    (e) Withdrawals of cash or securities. (1) Cash or securities may be 
withdrawn from an account, except if:
    (i) Additional cash or securities are required to be deposited into 
the account for a transaction on the same or a previous day; or
    (ii) The withdrawal, together with other transactions, deposits, and 
withdrawals on the same day, would create or increase a margin 
deficiency.
    (2) Margin excess may be withdrawn or may be transferred to the 
special memorandum account (Sec. 220.5) by making a single entry to that 
account which will represent a debit to the margin account and a credit 
to the special memorandum account.
    (3) If a creditor does not receive a distribution of cash or 
securities which is payable with respect to any security in a margin 
account on the day it is payable and withdrawal would not be permitted 
under paragraph (e) of this section, a withdrawal transaction shall be 
deemed to have occurred on the day the distribution is payable.
    (f) Interest, service charges, etc. (1) Without regard to the other 
provisions of this section, the creditor, in its usual practice, may 
debit the following items to a margin account if they are considered in 
calculating the balance of such account:
    (i) Interest charged on credit maintained in the margin account;
    (ii) Premiums on securities borrowed in connection with short sales 
or to effect delivery;
    (iii) Dividends, interest, or other distributions due on borrowed 
securities;
    (iv) Communication or shipping charges with respect to transactions 
in the margin account; and
    (v) Any other service charges which the creditor may impose.
    (2) A creditor may permit interest, dividends, or other 
distributions credited to a margin account to be withdrawn from the 
account if:
    (i) The withdrawal does not create or increase a margin deficiency 
in the account; or

[[Page 13]]

    (ii) The current market value of any securities withdrawn does not 
exceed 10 percent of the current market value of the security with 
respect to which they were distributed.

[Reg. T, 61 FR 20392, May 6, 1996]



Sec. 220.5  Special memorandum account.

    (a) A special memorandum account (SMA) may be maintained in 
conjunction with a margin account. A single entry amount may be used to 
represent both a credit to the SMA and a debit to the margin account. A 
transfer between the two accounts may be effected by an increase or 
reduction in the entry. When computing the equity in a margin account, 
the single entry amount shall be considered as a debit in the margin 
account. A payment to the customer or on the customer's behalf or a 
transfer to any of the customer's other accounts from the SMA reduces 
the single entry amount.
    (b) The SMA may contain the following entries:
    (1) Dividend and interest payments;
    (2) Cash not required by this part, including cash deposited to meet 
a maintenance margin call or to meet any requirement of a self-
regulatory organization that is not imposed by this part;
    (3) Proceeds of a sale of securities or cash no longer required on 
any expired or liquidated security position that may be withdrawn under 
Sec. 220.4(e); and
    (4) Margin excess transferred from the margin account under 
Sec. 220.4(e)(2).

[Reg. T, 61 FR 20394, May 6, 1996]



Sec. 220.6  Government securities account.

    In a government securities account, a creditor may effect and 
finance transactions involving government securities, provided the 
transaction is not prohibited by section 15C of the Act or any rule 
thereunder.

[Reg. T, 61 FR 20394, May 6, 1996]



Sec. 220.7  Arbitrage account.

    In an arbitrage account a creditor may effect and finance for any 
customer bona fide arbitrage transactions. For the purpose of this 
section, the term ``bona fide arbitrage'' means:
    (a) A purchase or sale of a security in one market together with an 
offsetting sale or purchase of the same security in a different market 
at as nearly the same time as practicable for the purpose of taking 
advantage of a difference in prices in the two markets; or
    (b) A purchase of a security which is, without restriction other 
then the payment of money, exchangeable or convertible within 90 
calendar days of the purchase into a second security together with an 
offsetting sale of the second security at or about the same time, for 
the purpose of taking advantage of a concurrent disparity in the prices 
of the two securities.

[Reg. T, 61 FR 20394, May 6, 1996]



Sec. 220.8  Cash account.

    (a) Permissible transactions. In a cash account, a creditor, may:
    (1) Buy for or sell to any customer any security or other asset if:
    (i) There are sufficient funds in the account; or
    (ii) The creditor accepts in good faith the customer's agreement 
that the customer will promptly make full cash payment for the security 
or asset before selling it and does not contemplate selling it prior to 
making such payment;
    (2) Buy from or sell for any customer any security or other asset 
if:
    (i) The security is held in the account; or
    (ii) The creditor accepts in good faith the customer's statement 
that the security is owned by the customer or the customer's principal, 
and that it will be promptly deposited in the account;
    (3) Issue, endorse, or guarantee, or sell an option for any customer 
as part of a covered option transaction; and
    (4) Use an escrow agreement in lieu of the cash, cash equivalents or 
underlying asset position if:
    (i) In the case of a short call or a short put, the creditor is 
advised by the customer that the required securities, assets or cash are 
held by a person authorized to issue an escrow agreement and the 
creditor independently verifies that the appropriate escrow agreement 
will be delivered by the person promptly; or
    (ii) In the case of a call issued, endorsed, guaranteed, or sold on 
the same day the underlying asset is purchased in the account and the 
underlying

[[Page 14]]

asset is to be delivered to a person authorized to issue an escrow 
agreement, the creditor verifies that the appropriate escrow agreement 
will be delivered by the person promptly.
    (b) Time periods for payment; cancellation or liquidation--(1) Full 
cash payment. A creditor shall obtain full cash payment for customer 
purchases--
    (i) Within one payment period of the date:
    (A) Any nonexempted security was purchased;
    (B) Any when-issued security was made available by the issuer for 
delivery to purchasers;
    (C) Any ``when distributed'' security was distributed under a 
published plan;
    (D) A security owned by the customer has matured or has been 
redeemed and a new refunding security of the same issuer has been 
purchased by the customer, provided:
    (1) The customer purchased the new security no more than 35 calendar 
days prior to the date of maturity or redemption of the old security;
    (2) The customer is entitled to the proceeds of the redemption; and
    (3) The delayed payment does not exceed 103 percent of the proceeds 
of the old security.
    (ii) In the case of the purchase of a foreign security, within one 
payment period of the trade date or within one day after the date on 
which settlement is required to occur by the rules of the foreign 
securities market, provided this period does not exceed the maximum time 
permitted by this part for delivery against payment transactions.
    (2) Delivery against payment. If a creditor purchases for or sells 
to a customer a security in a delivery against payment transaction, the 
creditor shall have up to 35 calendar days to obtain payment if delivery 
of the security is delayed due to the mechanics of the transaction and 
is not related to the customer's willingness or ability to pay.
    (3) Shipment of securities, extension. If any shipment of securities 
is incidental to consummation of a transaction, a creditor may extend 
the payment period by the number of days required for shipment, but not 
by more than one additional payment period.
    (4) Cancellation; liquidation; minimum amount. A creditor shall 
promptly cancel or otherwise liquidate a transaction or any part of a 
transaction for which the customer has not made full cash payment within 
the required time. A creditor may, at its option, disregard any sum due 
from the customer not exceeding $1000.
    (c) 90 day freeze. (1) If a nonexempted security in the account is 
sold or delivered to another broker or dealer without having been 
previously paid for in full by the customer, the privilege of delaying 
payment beyond the trade date shall be withdrawn for 90 calendar days 
following the date of sale of the security. Cancellation of the 
transaction other than to correct an error shall constitute a sale.
    (2) The 90 day freeze shall not apply if:
    (i) Within the period specified in paragraph (b)(1) of this section, 
full payment is received or any check or draft in payment has cleared 
and the proceeds from the sale are not withdrawn prior to such payment 
or check clearance; or
    (ii) The purchased security was delivered to another broker or 
dealer for deposit in a cash account which holds sufficient funds to pay 
for the security. The creditor may rely on a written statement accepted 
in good faith from the other broker or dealer that sufficient funds are 
held in the other cash account.
    (d) Extension of time periods; transfers. (1) Unless the creditor's 
examining authority believes that the creditor is not acting in good 
faith or that the creditor has not sufficiently determined that 
exceptional circumstances warrant such action, it may upon application 
by the creditor:
    (i) Extend any period specified in paragraph (b) of this section;
    (ii) Authorize transfer to another account of any transaction 
involving the purchase of a margin or exempted security; or
    (iii) Grant a waiver from the 90 day freeze.
    (2) Applications shall be filed and acted upon prior to the end of 
the payment period, or in the case of the purchase of a foreign security 
within the period specified in paragraph (b)(1)(ii)

[[Page 15]]

of this section, or the expiration of any subsequent extension.

[Reg. T, 61 FR 20394, May 6, 1996]



Sec. 220.9  Nonsecurities credit and employee stock ownership account.

    (a) In a nonsecurities credit account a creditor may:
    (1) Effect and carry transactions in commodities;
    (2) Effect and carry transactions in foreign exchange;
    (3) Extend and maintain secured or unsecured nonpurpose credit, 
subject to the requirements of paragraph (b) of this section; and
    (4) Extend and maintain credit to employee stock ownership plans 
without regard to the other sections of this part.
    (b) Every extension of credit, except as provided in paragraphs 
(a)(1) and (a)(2) of this section, shall be deemed to be purpose credit 
unless, prior to extending the credit, the creditor accepts in good 
faith from the customer a written statement that it is not purpose 
credit. The statement shall conform to the requirements established by 
the Board. To accept the customer's statement in good faith, the 
creditor shall be aware of the circumstances surrounding the extension 
of credit and shall be satisfied that the statement is truthful.

[Reg. T, 61 FR 20395, May 6, 1996]



Sec. 220.10  Omnibus account.

    (a) In an omnibus account, a creditor may effect and finance 
transactions for a broker or dealer who is registered with the SEC under 
section 15 of the Act and who gives the creditor written notice that:
    (1) All securities will be for the account of customers of the 
broker or dealer; and
    (2) Any short sales effected will be short sales made on behalf of 
the customers of the broker or dealer other than partners.
    (b) The written notice required by paragraph (a) of this section 
shall conform to any SEC rule on the hypothecation of customers' 
securities by brokers or dealers.

[Reg. T, 61 FR 20395, May 6, 1996]



Sec. 220.11  Broker-dealer credit account.

    (a) Permissible transactions. In a broker-dealer credit account, a 
creditor may:
    (1) Purchase any security from or sell any security to another 
creditor or person regulated by a foreign securities authority under a 
good faith agreement to promptly deliver the security against full 
payment of the purchase price.
    (2) Effect or finance transactions of any of its owners if the 
creditor is a clearing and servicing broker or dealer owned jointly or 
individually by other creditors.
    (3) Extend and maintain credit to any partner or stockholder of the 
creditor for the purpose of making a capital contribution to, or 
purchasing stock of, the creditor, affiliated corporation or another 
creditor.
    (4) Extend and maintain, with the approval of the appropriate 
examining authority:
    (i) Credit to meet the emergency needs of any creditor; or
    (ii) Subordinated credit to another creditor for capital purposes, 
if the other creditor:
    (A) Is an affiliated corporation or would not be considered a 
customer of the lender apart from the subordinated loan; or
    (B) Will not use the proceeds of the loan to increase the amount of 
dealing in securities for the account of the creditor, its firm or 
corporation or an affiliated corporation.
    (5) Effect transactions for a customer as part of a ``prime broker'' 
arrangement in conformity with SEC guidelines.
    (b) Affiliated corporations. For purposes of paragraphs (a)(3) and 
(a)(4) of this section ``affiliated corporation'' means a corporation 
all the common stock of which is owned directly or indirectly by the 
firm or general partners and employees of the firm, or by the 
corporation or holders of the controlling stock and employees of the 
corporation and the affiliation has been approved by the creditor's 
examining authority.

[Reg. T, 61 FR 20395, May 6, 1996]

[[Page 16]]



Sec. 220.12  Market functions account.

    (a) Requirements. In a market functions account, a creditor may 
effect or finance the transactions of market participants in accordance 
with the following provisions. A separate record shall be kept for the 
transactions specified for each category described in paragraphs (b) 
through (e) of this section. Any position in a separate record shall not 
be used to meet the requirements of any other category.
    (b) Specialists.--(1) Applicability. A creditor may clear or finance 
specialist transactions and permitted offset positions for any 
specialist, or any specialist joint account, in which all participants, 
or all participants other than the creditor, are registered as 
specialists on a national securities exchange that requires regular 
reports on the use of specialist credit from the registered specialists.
    (2) Required margin. The required margin for a specialist's 
transactions shall be:
    (i) Good faith margin for:
    (A) Any long or short position in a security in which the specialist 
makes a market;
    (B) Any wholly-owned margin security or exempted security; or
    (C) Any permitted offset position.
    (ii) The margin prescribed by Sec. 220.18 (the Supplement) when a 
security purchased or sold short in the account does not qualify as a 
specialist or permitted offset position.
    (3) Additional margin; restriction on ``free-riding.'' (i) Except as 
required by paragraph (b)(4) of this section, the creditor shall issue a 
margin call on any day when additional margin is required as a result of 
specialist transactions. The creditor may allow the specialist a maximum 
of one payment period to satisfy a margin call.
    (ii) If a specialist fails to satisfy a margin call within the 
period specified in paragraph (b)(3) of this section (and the creditor 
is required to liquidate securities to satisfy the call), the creditor 
shall be prohibited for a 15 calendar day period from extending any 
further credit to the specialist to finance transactions in nonspecialty 
securities.
    (iii) The restriction on ``free-riding'' shall not apply to:
    (A) Any specialist on a national securities exchange that has an 
SEC-approved rule on ``free-riding'' by specialists; or
    (B) the acquisition or liquidation of a permitted offset position.
    (4) Deficit status. On any day when a specialist's separate record 
would liquidate to a deficit, the creditor shall not extend any further 
specialist credit in the account and shall issue a margin call at least 
as large as the deficit. If the call is not met by noon of the following 
business day, the creditor shall liquidate positions in the specialist's 
account.
    (5) Withdrawals. Withdrawals may be permitted to the extent that the 
equity exceeds the margin requirements specified in paragraph (b)(2) of 
this section.
    (6) Permitted offset positions. Until June 1, 1997, a specialist in 
options may establish, on a share-for-share basis, a long or short 
position in the securities underlying the options in which the 
specialist makes a market, and a specialist in securities other than 
options may purchase or write options overlying the securities in which 
the specialist makes a market, if the account holds the following 
permitted offset positions:
    (i) A short option position which is ``in or at the money'' and is 
not offset by a long or short option position for an equal or greater 
number of shares of the same underlying security which is ``in the 
money'';
    (ii) A long option position which is ``in or at the money'' and is 
not offset by a long or short option position for an equal or greater 
number of shares of the same underlying security which is ``in the 
money'';
    (iii) A short option position against which an exercise notice was 
tendered;
    (iv) A long option position which was exercised;
    (v) A net long position in a security (other than an option) in 
which the specialist makes a market; or
    (vi) A net short position in a security (other than an option) in 
which the specialist makes a market.
    (c) Underwriters and distributors. A creditor may effect or finance 
for any dealer or group of dealers transactions for the purpose of 
facilitating the underwriting or distribution of all or a

[[Page 17]]

part of an issue of securities with a good faith margin.
    (d) OTC marketmakers and third marketmakers. (1) A creditor may 
clear or finance with a good faith margin, marketmaking transactions for 
a creditor who is a registered NASDAQ marketmaker or a qualified third 
marketmaker as defined in SEC Rule 3b-8 (17 CFR 240.3b-8).
    (2) If the credit extended to a marketmaker ceases to be for the 
purpose of marketmaking, or the dealer ceases to be a marketmaker for an 
issue of securities for which credit was extended, the credit shall be 
subject to the margin specified in Sec. 220.18 (the Supplement).
    (e) Odd-lot dealers. A creditor may clear and finance odd-lot 
transactions for any creditor who is registered as an odd-lot dealer on 
a national securities exchange with a good faith margin.

[Reg. T, 61 FR 20395, May 6, 1996]



Sec. 220.13  Arranging for loans by others.

    A creditor may arrange for the extension or maintenance of credit to 
or for any customer by any person, provided the creditor does not 
willfully arrange credit that violates parts 207, 221, or 224 of this 
chapter.

[Reg. T, 61 FR 20396, May 6, 1996]



Sec. 220.14  Clearance of securities, options, and futures.

    (a) Credit for clearance of securities. The provisions of this part 
shall not apply to the extension or maintenance of any credit that is 
not for more than one day if it is incidental to the clearance of 
transactions in securities directly between members of a national 
securities exchange or association or through any clearing agency 
registered with the SEC.
    (b) Deposit of securities with a clearing agency. The provisions of 
this part shall not apply to the deposit of securities with an options 
or futures clearing agency for the purpose of meeting the deposit 
requirements of the agency if:
    (1) The clearing agency:
    (i) Issues, guarantees performance on, or clears transactions in, 
any security (including options on any security, certificate of deposit, 
securities index or foreign currency); or
    (ii) Guarantees performance of contracts for the purchase or sale of 
a commodity for future delivery or options on such contracts;
    (2) The clearing agency is registered with the Securities and 
Exchange Commission or is the clearing agency for a contract market 
regulated by the Commodity Futures Trading Commission; and
    (3) The deposit consists of any margin security and complies with 
the rules of the clearing agency that have been approved by the 
Securities and Exchange Commission or the Commodity Futures Trading 
Commission.

[Reg. T, 61 FR 20396, May 6, 1996]



Sec. 220.15  Borrowing by creditors.

    (a) Restrictions on borrowing. A creditor may not borrow in the 
ordinary course of business as a broker or dealer using as collateral 
any registered nonexempted security, except:
    (1) From or through a member bank of the Federal Reserve System; or
    (2) From any nonmember bank that has filed with the Board an 
agreement as prescribed in paragraph (b) of this section, which 
agreement is still in effect; or
    (3) From another creditor if the loan is permissible under this 
part.
    (b) Agreements of nonmember banks. (1) A nonmember bank shall file 
an agreement that conforms to the requirements of section 8(a) of the 
Act (See Form FR T-1, T-2).
    (2) Any nonmember bank may terminate its agreement if it obtains the 
written consent of the Board.

[Reg. T, 61 FR 20396, May 6, 1996]



Sec. 220.16  Borrowing and lending securities.

    (a) Without regard to the other provisions of this part, a creditor 
may borrow or lend securities for the purpose of making delivery of the 
securities in the case of short sales, failure to receive securities 
required to be delivered, or other similar situations. Each borrowing 
shall be secured by a deposit of one or more of the following: cash, 
cash equivalents, foreign sovereign nonconvertible debt securities that 
are

[[Page 18]]

margin securities, collateral acceptable for borrowings of securities 
pursuant to SEC Rule 15c3-3 (17 CFR 240.15c3-3), or irrevocable letters 
of credit issued by a bank insured by the Federal Deposit Insurance 
Corporation or a foreign bank that has filed an agreement with the Board 
on Form FR T-1, T-2. Such deposit made with the lender of the securities 
shall have at all times a value at least equal to 100 percent of the 
market value of the securities borrowed, computed as of the close of the 
preceding business day. If a creditor reasonably anticipates a short 
sale, such borrowing may be made up to one standard settlement cycle in 
advance of trade date.
    (b) A creditor may lend non-U.S. traded foreign securities to a 
foreign person (or borrow such securities for the purpose of relending 
them to a foreign person) for any purpose lawful in the country in which 
they are to be used. Each borrowing shall be secured with collateral 
having at all times a value at least equal to 100 percent of the market 
value of the securities borrowed, computed as of the close of the 
preceding business day.

[Reg. T, 61 FR 20396, May 6, 1996]



Sec. 220.17  Requirements for the list of marginable OTC stocks and the list of foreign margin stocks.

    (a) Requirements for inclusion on the list of marginable OTC stocks. 
Except as provided in paragraph (f) of this section, OTC margin stock 
shall meet the following requirements:
    (1) Four or more dealers stand willing to, and do in fact, make a 
market in such stock and regularly submit bona fide bids and offers to 
an automated quotations system for their own accounts;
    (2) The minimum average bid price of such stock, as determined by 
the Board, is at least $5 per share;
    (3) The stock is registered under section 12 of the Act, is issued 
by an insurance company subject to section 12(g)(2)(G) of the Act, is 
issued by a closed-end investment management company subject to 
registration pursuant to section 8 of the Investment Company Act of 1940 
(15 U.S.C. 80a-8), is an American Depository Receipt (ADR) of a foreign 
issuer whose securities are registered under section 12 of the Act, or 
is a stock of an issuer required to file reports under section 15(d) of 
the Act;
    (4) Daily quotations for both bid and asked prices for the stock are 
continuously available to the general public;
    (5) The stock has been publicly traded for at least six months;
    (6) The issuer has at least $4 million of capital, surplus, and 
undivided profits;
    (7) There are 400,000 or more shares of such stock outstanding in 
addition to shares held beneficially by officers, directors or 
beneficial owners of more than 10 percent of the stock;
    (8) There are 1,200 or more holders of record, as defined in SEC 
Rule 12g5-1 (17 CFR 240.12g5-1), of the stock who are not officers, 
directors or beneficial owners of 10 percent or more of the stock, or 
the average daily trading volume of such stock as determined by the 
Board, is at least 500 shares; and
    (9) The issuer or a predecessor in interest has been in existence 
for at least three years.
    (b) Requirements for continued inclusion on the list of marginable 
OTC stocks. Except as provided in paragraph (f) of this section, OTC 
margin stock shall meet the following requirements:
    (1) Three or more dealers stand willing to, and do in fact, make a 
market in such stock and regularly submit bona fide bids and offers to 
an automated quotations system for their own accounts;
    (2) The minimum average bid price of such stocks, as determined by 
the Board, is at least $2 per share;
    (3) The stock is registered as specified in paragraph (a)(3) of this 
section;
    (4) Daily quotations for both bid and asked prices for the stock are 
continuously available to the general public;
    (5) The issuer has at least $1 million of capital, surplus, and 
undivided profits;
    (6) There are 300,000 or more shares of such stock outstanding in 
addition to shares held beneficially by officers, directors, or 
beneficial owners of more than 10 percent of the stock; and
    (7) There continue to be 800 or more holders of record, as defined 
in SEC Rule 12g5-1 (17 CFR 240.12g5-1), of the stock who are not 
officers, directors, or

[[Page 19]]

beneficial owners of 10 percent or more of the stock, or the average 
daily trading volume of such stock, as determined by the Board, is at 
least 300 shares.
    (c) Requirements for inclusion on the list of foreign margin stocks. 
Except as provided in paragraph (f) of this section, a foreign margin 
stock shall be a foreign security deemed to have a ``ready market'' for 
purposes of SEC Rule 15c3-1 (17 CFR 240.15c3-1) or meet the following 
requirements:
    (1) The security is listed for trading on or through the facilities 
of a foreign securities exchange or a recognized foreign securities 
market and has been trading on such exchange or market for at least six 
months;
    (2) Daily quotations for both bid and asked or last sale prices for 
the security provided by the foreign securities exchange or foreign 
securities market on which the security is traded are continuously 
available to creditors in the United States pursuant to an electronic 
quotation system;
    (3) The aggregate market value of shares, the ownership of which is 
unrestricted, is not less than $1 billion;
    (4) The average weekly trading volume of such security during the 
preceding six months is either at least 200,000 shares or $1 million; 
and
    (5) The issuer or a predecessor in interest has been in existence 
for at least five years.
    (d) Requirements for continued inclusion on the list of foreign 
margin stocks. Except as provided in paragraph (f) of this section, a 
foreign margin stock shall be a foreign security deemed to have a 
``ready market'' for purposes of SEC Rule 15c3-1 (17 CFR 240.15c3-1) or 
meet the following requirements:
    (1) The security continues to meet the requirements specified in 
paragraphs (c) (1) and (2) of this section;
    (2) The aggregate market value of shares, the ownership of which is 
unrestricted, is not less than $500 million; and
    (3) The average weekly trading volume of such security during the 
preceding six months is either at least 100,000 shares or $500,000.
    (e) Removal from the lists. The Board shall periodically remove from 
the lists any stock that:
    (1) Ceases to exist or of which the issuer ceases to exist; or
    (2) No longer substantially meets the provisions of paragraph (b) or 
(d) of this section or the definition of OTC margin stock.
    (f) Discretionary authority of Board. Without regard to other 
paragraphs of this section, the Board may add to, or omit or remove from 
the list of marginable OTC stocks and the list of foreign margin stocks 
and equity security, if in the judgment of the Board, such action is 
necessary or appropriate in the public interest.
    (g) Unlawful representations. It shall be unlawful for any creditor 
to make,or cause to be made, any representation to the effect that the 
inclusion of a security on the list of marginable OTC stocks or the list 
of foreign margin stocks is evidence that the Board or the SEC has in 
any way passed upon the merits of, or given approval to, such security 
or any transactions therein. Any statement in an advertisement or other 
similar communication containing a reference to the Board in connection 
with the lists or stocks on those lists shall be an unlawful 
representation.

[Reg. T, 61 FR 20397, May 6, 1996]



Sec. 220.18  Supplement: Margin requirements.

    The required margin for each security position held in a margin 
account shall be as follows:
    (a) Margin equity security, except for an exempted security, money 
market mutual fund or exempted securities mutual fund, warrant on a 
securities index or foreign currency or a long position in an option: 50 
percent of the current market value of the security or the percentage 
set by the regulatory authority where the trade occurs, whichever is 
greater.
    (b) Exempted security, registered nonconvertible debt security, OTC 
margin bond, money market mutual fund or exempted securities mutual 
fund: The margin required by the creditor in good faith or the 
percentage set by the regulatory authority where the trade occurs, 
whichever is greater.

[[Page 20]]

    (c) Short sale of a nonexempted security, except for a registered 
nonconvertible debt security or OTC margin bond: 150 percent of the 
current market value of the security, or 100 percent of the current 
market value if a security exchangeable or convertible within 90 
calendar days without restriction other than the payment of money into 
the security sold short is held in the account.
    (d) Short sale of an exempted security, registered nonconvertible 
debt security or OTC margin bond: 100 percent of the current market 
value of the security plus the margin required by the creditor in good 
faith.
    (e) Nonmargin, nonexempted security: 100 percent of the current 
market value.
    (f) Put or call on a security, certificate of deposit, securities 
index or foreign currency or a warrant on a securities index or foreign 
currency:
    (1) In the case of puts and calls issued by a registered clearing 
corporation and listed or traded on a registered national securities 
exchange or a registered securities association and registered warrants 
on a securities index or foreign currency, the amount, or other position 
(except in the case of an option on an equity security until June 1, 
1997), specified by the rules of the registered national securities 
exchange or the registered securities association authorized to trade 
the option or warrant, provided that all such rules have been approved 
or amended by the SEC; or
    (2) In the case of all other puts and calls, the amount, or other 
position, specified by the maintenance rules of the creditor's examining 
authority.

[Reg. T, 61 FR 20397, May 6, 1996]

                             Interpretations



Sec. 220.101   Transactions of customers who are brokers or dealers.

    The Board has recently considered certain questions regarding 
transactions of customers who are brokers or dealers.
    (a) The first question was whether delivery and payment under 
Sec. 220.4(f)(3) must be exactly simultaneous (such as in sight draft 
shipments), or whether it is sufficient if the broker-dealer customer, 
``as promptly as practicable in accordance with the ordinary usage of 
the trade,'' mails or otherwise delivers to the creditor a check in 
settlement of the transaction, the check being accompanied by 
instructions for transfer or delivery of the security. The Board ruled 
that the latter method of setting the transaction is permissible.
    (b) The second question was, in effect, whether the limitations of 
Sec. 220.4(c)(8) apply to the account of a customer who is himself a 
broker or dealer. The answer is that the provision applies to any 
``special cash account,'' regardless of the type of customer.
    (c) The third question was, in effect, whether a purchase and a sale 
of an unissued security under Sec. 220.4(f)(3) may be offset against 
each other, or whether each must be settled separately by what would 
amount to delivery of the security to settle one transaction and its 
redelivery to settle the other. The answer is that it is permissible to 
offset the transactions against each other without physical delivery and 
redelivery of the security.

[11 FR 14155, Dec. 7, 1946]
Sec. 220.102  [Reserved]



Sec. 220.103   Borrowing of securities.

    (a) The Board of Governors has been asked for a ruling as to whether 
Sec. 220.6(h), which deals with borrowing and lending of securities, 
applies to a borrower of securities if the lender is a private 
individual, as contrasted with a member of a national securities 
exchange or a broker or dealer.
    (b) Section 220.6(h) does not require that the lender of the 
securities in such a case be a member of a national securities exchange 
or a broker or dealer. Therefore, a borrowing of securities may be able 
to qualify under the provision even though the lender is a private 
individual, and this is true whether the security is registered on a 
national securities exchange or is unregistered. In borrowing securities 
from a private individual under Sec. 220.6(h), however, it becomes 
especially important to bear in mind two limitations that are contained 
in the section.

[[Page 21]]

    (c) The first limitation is that the section applies only if the 
broker borrows the securities for the purpose specified in the 
provision, that is, ``for the purpose of making delivery of such 
securities in the case of short sales, failure to receive securities he 
is required to deliver, or other similar cases''. The present language 
of the provision does not require that the delivery for which the 
securities are borrowed must be on a transaction which the borrower has 
himself made, either as agent or as principal; he may borrow under the 
provision in order to relend to someone else for the latter person to 
make such a delivery. However, the borrowing must be related to an 
actual delivery of the type specified--a delivery in connection with a 
specific transaction that has already occurred or is in immediate 
prospect. The provision does not authorize a broker to borrow securities 
(or make the related deposit) merely in order that he or some other 
broker may have the securities ``on hand'' or may anticipate some need 
that may or may not arise in the future.
    (d) The ruling in the 1940 Federal Reserve Bulletin, at page 647, is 
an example of a borrowing which, on the facts as given, did not meet the 
requirement. There, the broker wished to borrow stocks with the 
understanding that he ``would offer to lend this stock in the `loan 
crowd' on a national securities exchange.'' There was no assurance that 
the stocks would be used for the purpose specified in Sec. 220.6(h); 
they might be, or they might merely be held idle while the person 
lending the stocks had the use of the funds deposited against them. The 
ruling held in effect that since the borrowing could not qualify under 
Sec. 220.6(h) it must comply with other applicable provisions of the 
regulation.
    (e) The second requirement is that the deposit of cash against the 
borrowed securities must be ``bona fide.'' This requirement naturally 
cannot be spelled out in detail, but it requires at least that the 
purpose of the broker in making the deposit should be to obtain the 
securities for the specified purpose, and that he should not use the 
arrangement as a means of accommodating a customer who is seeking to 
obtain more funds than he could get in a general account.
    (f) The Board recognizes that even with these requirements there is 
still some possibility that the provision may be misapplied. The Board 
is reluctant to impose additional burdens on legitimate transactions by 
tightening the provision. If there should be evidence of abuses 
developing under the provision, however, it would become necessary to 
consider making it more restricted.

[12 FR 5278, Aug. 2, 1947]
Sec. 220.104  [Reserved]



Sec. 220.105   Ninety-day rule in special cash account.

    (a) Section 220.4(c)(8) places a limitation on a special cash 
account if a security other than an exempted security has been purchased 
in the account and ``without having been previously paid for in full by 
the customer * * * has been * * * delivered out to any broker or 
dealer.'' The limitation is that during the succeeding 90 days the 
customer may not purchase a security in the account other than an 
exempted security unless funds sufficient for the purpose are held in 
the account. In other words, the privilege of delayed payment in such an 
account is withdrawn during the 90-day period.
    (b) The Board recently considered a question as to whether the 
following situation makes an account subject to the 90-day 
disqualification: A customer purchases registered security ABC in a 
special cash account. The broker executes the order in good faith as a 
bona fide cash transaction, expecting to obtain full cash payment 
promptly. The next day, the customer sells registered security XYZ in 
the account, promising to deposit it promptly in the account. The 
proceeds of the sale are equal to or greater than the cost of security 
ABC. After both sale and purchase have been made, the customer requests 
the broker to deliver security ABC to a different broker, to receive 
security XYZ from that broker at about the same time, and to settle with 
the other broker--such settlement to be made either by paying the cost 
of security XYZ to the other broker and receiving from him the cost of 
security

[[Page 22]]

ABC, or by merely settling any difference between these amounts.
    (c) The Board expressed the view that the account becomes subject to 
the 90-day disqualification in Sec. 220.4(c)(8). In the instant case, 
unlike that described at 1940 Federal Reserve Bulletin 772, the security 
sold is not held in the account and is not to be deposited in it 
unconditionally. It is to be obtained only against the delivery to the 
other broker of the security which had been purchased. Hence payment can 
not be said to have been made prior to such delivery; the purchased 
security has been delivered out to a broker without previously having 
been paid for in full, and the account becomes subject to the 90-day 
disqualification.

[13 FR 2368, May 1, 1948]
Sec. 220.106  [Reserved]
Sec. 220.107  [Reserved]



Sec. 220.108   International Bank Securities.

    (a) Section 2 of the Act of June 29, 1949 (Pub. L. 142--81st 
Congress), amended the Bretton Woods Agreements Act by adding a new 
section numbered 15 providing, in part, that--

    Any securities issued by International Bank for Reconstruction and 
Development (including any guaranty by the bank, whether or not limited 
in scope), and any securities guaranteed by the bank as to both 
principal and interest, shall be deemed to be exempted securities within 
the meaning of * * * paragraph (a)(12) of section 3 of the [Securities 
Exchange] Act of June 6, 1934, as amended (15 U.S.C. 78c). * * *.

    (b) In response to inquiries with respect to the applicability of 
the margin requirements of this part to securities issued or guaranteed 
by the International Bank for Reconstruction and Development, the Board 
has replied that, as a result of this enactment, securities issued by 
the Bank are now classified as exempted securities under Sec. 220.2(e). 
Such securities are now in the same category under this part as are 
United States Government, State and municipal bonds. Accordingly, the 
specific percentage limitations prescribed by this part with respect to 
maximum loan value and margin requirements are no longer applicable 
thereto.

[14 FR 5505, Sept. 7, 1949]
Sec. 220.109  [Reserved]



Sec. 220.110   Assistance by Federal credit union to its members.

    (a) An inquiry was presented recently concerning the application of 
this part or part 221 of this subchapter, to a plan proposed by a 
Federal credit union to aid its members in purchasing stock of a 
corporation whose subsidiary apparently was the employer of all the 
credit union's members.
    (b) From the information submitted, the plan appeared to contemplate 
that the Federal credit union would accept orders from its members for 
registered common stock of the parent corporation in multiples of 5 
shares; that whenever orders had been so received for a total of 100 
shares, the credit union, as agent for such members, would execute the 
orders through a brokerage firm with membership on a national securities 
exchange; that the brokerage firm would deliver certificates for the 
stock, registered in the names of the individual purchasers, to the 
credit union against payment by the credit union; that the credit union 
would prorate the total amount so paid, including the brokerage fee, 
among the individual purchasers according to the number of shares 
purchased by them; and that a savings in brokerage fee resulting from 
the 100-lot purchases would be passed on by the credit union to the 
individual purchasers of the stock. However, amounts of the stock less 
than 100 shares would be purchased by the credit union through the 
brokerage firm for any members willing to forego such savings.
    (c) It appeared further that the Federal credit union members for 
whom stock was so purchased would reimburse the credit union (1) by cash 
payment, (2) by the proceeds of withdrawn shares of the credit union, 
(3) by the proceeds of an installment loan from the credit union 
collateraled by the stock purchased, or by (4) by a combination of two 
or more of the above methods. To assist the collection of any such loan, 
the employer of the

[[Page 23]]

credit union members would provide payroll deductions. Apparently, sales 
by the credit union of any of the stock purchased by one of its members 
would occur only in satisfaction of a delinquent loan balance. In no 
case did it appear that the credit union would make a charge for 
arranging the execution of transactions in the stock for its members.
    (d) The Board was of the view that, from the facts as presented, it 
did not appear that the Federal credit union should be regarded as the 
type of institution to which part 221 of this subchapter, in its present 
form, applied.
    (e) With respect to this part, the question was whether the 
activities of the Federal credit union under the proposal, or otherwise, 
might be such as to bring it within the meaning of the terms ``broker'' 
or ``dealer'' as used in the part and the Securities Exchange Act of 
1934. The Board observed that this, of course, was a question of fact 
that necessarily depended upon the circumstances of the particular case, 
including the manner in which the arrangement in question might be 
carried out in practice.
    (f) On the basis of the information submitted, however, it did not 
appear to the Board that the Federal credit union should be regarded as 
being subject to this part as a ``broker or dealer who transacts a 
business in securities through the medium of'' a member firm solely 
because of its activities as contemplated by the proposal in question. 
The Board stated that the part rather clearly would not apply if there 
appeared to be nothing other than loans by the credit union to its 
members to finance purchases made directly by them of stock of the 
parent corporation of the employer of the member-borrowers. The 
additional fact that the credit union, as agent, would purchase such 
stock for its members (even though all such purchases might not be 
financed by credit union loans) was not viewed by the Board as 
sufficient to make the regulation applicable where, as from the facts 
presented, it did not appear that the credit union in any case was to 
make any charge or receive any compensation for assisting in such 
purchases or that the credit union otherwise was engaged in securities 
activities. However, the Board stated that matters of this kind must be 
examined closely for any variations that might suggest the 
inapplicability of the foregoing.

[18 FR 4592, Aug. 5, 1953]



Sec. 220.111   Arranging for extensions of credit to be made by a bank.

    (a) The Board has recently had occasion to express opinions 
regarding the requirements which apply when a person subject to this 
part (for convenience, called here simply a broker) arranges for a bank 
to extend credit.
    (b) The matter is treated generally in Sec. 220.7(a) and is also 
subject to the general rule of law that any person who aids or abets a 
violation of law by another is himself guilty of a violation. It may be 
stated as a general principle that any person who arranges for credit to 
be extended by someone else has a responsibility so to conduct his 
activities as not to be a participant in a violation of this part, which 
applies to brokers, or part 221 of this subchapter, which applies to 
banks.
    (c) More specifically, in arranging an extension of credit that may 
be subject to part 221 of this subchapter, a broker must act in good 
faith and, therefore, must question the accuracy of any non-purpose 
statement (i.e., a statement that the loan is not for the purpose of 
purchasing or carrying registered stocks) given in connection with the 
loan where the circumstances are such that the broker from any source 
knows or has reason to know that the statement is incomplete or 
otherwise inaccurate as to the true purpose of the credit. The 
requirement of ``good faith'' is of vital importance. While the 
application of the requirement will necessarily vary with the facts of 
the particular case, the broker, like the bank for whom the loan is 
arranged to be made, must be alert to the circumstances surrounding the 
loan. Thus, for example, if a broker or dealer is to deliver registered 
stocks to secure the loan or is to receive the proceeds of the loan, the 
broker arranging the loan and the bank making it would be put on notice 
that the loan would probably be subject to part 221 of this subchapter. 
In any such circumstances they could not in good faith accept or

[[Page 24]]

rely upon a statement to the contrary without obtaining a reliable and 
satisfactory explanation of the situation. The foregoing, of course, 
applies the principles contained in Sec. 221.101 of this subchapter.
    (d) In addition, when a broker is approached by another broker to 
arrange extensions of credit for customers of the approaching broker, 
the broker approached has a responsibility not to arrange any extension 
of credit which the approaching broker could not himself arrange. 
Accordingly, in such cases the statutes and regulations forbid the 
approached broker to arrange extensions of credit on unregistered 
securities for the purpose of purchasing or carrying either registered 
or unregistered securities. The approaching broker would also be 
violating the applicable requirements if he initiated or otherwise 
participated in any such forbidden transactions.
    (e) The expression of views, set forth in this section, to the 
effect that certain specific transactions are forbidden, of course, 
should not in any way be understood to indicate approval of any other 
transactions which are not mentioned.

[18 FR 5505, Sept. 15, 1953]
Sec. 220.112  [Reserved]



Sec. 220.113   Necessity for prompt payment and delivery in special cash accounts.

    (a) The Board of Governors recently received an inquiry concerning 
whether purchases of securities by certain municipal employees' 
retirement or pension systems on the basis of arrangements for delayed 
delivery and payment, might properly be effected by a creditor subject 
to this part in a special cash account under Sec. 220.4(c).
    (b) It appears that in a typical case the supervisors of the 
retirement system meet only once or twice each month, at which times 
decisions are made to purchase any securities wished to be acquired for 
the system. Although the securities are available for prompt delivery by 
the broker-dealer firm selected to effect the system's purchase, it is 
arranged in advance with the firm that the system will not accept 
delivery and pay for the securities before some date more than seven 
business days after the date on which the securities are purchased. 
Apparently, such an arrangement is occasioned by the monthly or 
semimonthly meetings of the system's supervisors. It was indicated that 
a retirement system of this kind may be supervised by officials who 
administer it as an incidental part of their regular duties, and that 
meetings requiring joint action by two or more supervisors may be 
necessary under the system's rules and procedures to authorize issuance 
of checks in payment for the securities purchased. It was indicated also 
that the purchases do not involve exempted securities, securities of the 
kind covered by Sec. 220.4(c)(3), or any shipment of securities as 
described in Sec. 220.4(c).
    (c) This part provides that a creditor subject thereto may not 
effect for a customer a purchase in a special cash account under 
Sec. 220.4(c) unless the use of the account meets the limitations of 
Sec. 220.4(a) and the purchase constitutes a ``bona fide cash 
transaction'' which complies with the eligibility requirements of 
Sec. 220.4(c)(1)(i). One such requirement is that the purchase be made 
``in reliance upon an agreement accepted by the creditor (broker-dealer) 
in good faith'' that the customer will ``promptly make full cash payment 
for the security, if funds sufficient for the purpose are not already in 
the account; and, subject to certain exceptions, Sec. 220.4(c)(2) 
provides that the creditor shall promptly cancel or liquidate the 
transaction if payment is not made by the customer within seven business 
days after the date of purchase. As indicated in the Board's 
interpretation at 1940 Federal Reserve Bulletin 1172, a necessary part 
of the customer's undertaking pursuant to Sec. 220.4(c)(1)(i) is that he 
``should have the necessary means of payment readily available when he 
purchases a security in the special cash account. He should expect to 
pay for it immediately or in any event within the period (of not more 
than a very few days) that is as long as is usually required to carry 
through the ordinary securities transaction.''
    (d) The arrangements for delayed delivery and payment in the case 
presented to the Board and outlined above

[[Page 25]]

clearly would be inconsistent with the requirement of 
Sec. 220.4(c)(1)(i) that the purchase be made in reliance upon an 
agreement accepted by the creditor in good faith that the customer will 
``promptly'' make full cash payment for the security. Accordingly, the 
Board said that transactions of the kind in question would not qualify 
as a ``bona fide cash transaction'' and, therefore, could not properly 
be effected in a special cash account, unless a contrary conclusion 
would be justified by the exception in Sec. 220.4(c)(5).
    (e) Section 220.4(c)(5) provides that if the creditor, ``acting in 
good faith in accordance with'' Sec. 220.4(c)(1), purchases a security 
for a customer ``with the understanding that he is to deliver the 
security promptly to the customer, and the full cash payment is to be 
made promptly by the customer is to be made against such delivery'', the 
creditor may at his option treat the transaction as one to which the 
period applicable under Sec. 220.4(c)(2) is not the seven days therein 
specified but 35 days after the date of such purchase. It will be 
observed that the application of Sec. 220.4 (c)(5) is specifically 
conditioned on the creditor acting in good faith in accordance with 
Sec. 220.4(c)(1). As noted above, the existence of the arrangements for 
delayed delivery and payment in the case presented would prevent this 
condition from being met, since the customer could not be regarded as 
having agreed to make full cash payment ``promptly''. Furthermore, such 
arrangements clearly would be inconsistent with the requirement of 
Sec. 220.4(c)(5) that the creditor ``deliver the security promptly to 
the customer''.
    (f) Section 220.4(c)(5) was discussed in the Board's published 
interpretation, referred to above, which states that ``it is not the 
purpose of (Sec. 220.4 (c)(5)) to allow additional time to customers for 
making payment. The `prompt delivery' described in (Sec. 220.4 (c)(5)) 
is delivery which is to be made as soon as the broker or dealer can 
reasonably make it in view of the mechanics of the securities business 
and the bona fide usages of the trade. The provision merely recognizes 
the fact that in certain circumstances it is an established bona fide 
practice in the trade to obtain payment against delivery of the security 
to the customer, and the further fact that the mechanics of the trade, 
unrelated to the customer's readiness to pay, may sometimes delay such 
delivery to the customer''.
    (g) In the case presented, it appears that the only reason for the 
delay is related solely to the customer's readiness to pay and is in no 
way attributable to the mechanics of the securities business. 
Accordingly, it is the Board's view that the exception in 
Sec. 220.4(c)(5) should not be regarded as permitting the transactions 
in question to be effected in a special cash account.

[22 FR 5954, July 27, 1957]
Secs. 220.114--220.116  [Reserved]



Sec. 220.117   Exception to 90-day rule in special cash account.

    (a) The Board of Governors has recently interpreted certain of the 
provisions of Sec. 220.4(c)(8), with respect to the withdrawal of 
proceeds of a sale of stock in a ``special cash account'' when the stock 
has been sold out of the account prior to payment for its purchase.
    (b) The specific factual situation presented may be summarized as 
follows:

    Customer purchased stock in a special cash account with a member 
firm on Day 1. On Day 3 customer sold the same stock at a profit. On Day 
8 customer delivered his check for the cost of the purchase to the 
creditor (member firm). On Day 9 the creditor mailed to the customer a 
check for the proceeds of the sale.

    (c) Section 220.4(c)(8) prohibits a creditor, as a general rule, 
from effecting a purchase of a security in a customer's special cash 
account if any security has been purchased in that account during the 
preceding 90 days and has then been sold in the account or delivered out 
to any broker or dealer without having been previously paid for in full 
by the customer. One exception to this general rule reads as follows:

    * * * The creditor may disregard for the purposes of this 
subparagraph (Sec. 220.4(c) (8)) a sale without prior payment provided 
full cash payment is received within the period described by 
subparagraph (2) of this paragraph (seven days after the date of 
purchase)

[[Page 26]]

and the customer has not withdrawn the proceeds of sale on or before the 
day on which such payment (and also final payment of any check received 
in that connection) is received. * * *

    (d) Final payment of customer's check: (1) The first question is: 
When is the creditor to be regarded as having received ``final payment 
of any check received'' in connection with the purchase?
    (2) The clear purpose of Sec. 220.4(c) (8) is to prevent the use of 
the proceeds of sale of a stock by a customer to pay for its purchase--
i.e., to prevent him from trading on the creditor's funds by being able 
to deposit the sale proceeds prior to presentment of his own check to 
the drawee bank. Thus, when a customer undertakes to pay for a purchase 
by check, that check does not constitute payment for the purchase, 
within the language and intent of the above-quoted exception in 
Sec. 220.4(c)(8), until it has been honored by the drawee bank, 
indicating the sufficiency of his account to pay the check.
    (3) The phrase ``final payment of any check'' is interpreted as 
above notwithstanding Sec. 220.6(f), which provides that:

    For the purposes of this part (Regulation T), a creditor may, at his 
option (1) treat the receipt in good faith of any check or draft drawn 
on a bank which in the ordinary course of business is payable on 
presentation, * * * as receipt of payment of the amount of such check, 
draft or order; * * *

This is a general provision substantially the same as language found in 
section 4(f) of Regulation T as originally promulgated in 1934. The 
language of the subject exception to the 90-day rule of 
Sec. 220.4(c)(8), i.e., the exception based expressly on final ``payment 
of any check,'' was added to the regulation in 1949 by an amendment 
directed at a specific type of situation. Because the exception is a 
special, more recent provision, and because Sec. 220.6(f), if 
controlling, would permit the exception to undermine, to some extent, 
the effectiveness of the 90-day rule, sound principles of construction 
require that the phrase ``final payment of any check'' be given its 
literal and intended effect.
    (4) There is no fixed period of time from the moment of receipt by 
the payee, or of deposit, within which it is certain that any check will 
be paid by the drawee bank. Therefore, in the rare case where the 
operation of the subject exception to Sec. 220.4(c)(8) is necessary to 
avoid application of the 90-day rule, a creditor should ascertain (from 
his bank of deposit or otherwise) the fact of payment of a customer's 
check given for the purchase. Having so determined the day of final 
payment, the creditor can permit withdrawal on any subsequent day.
    (e) Mailing as ``withdrawal'': (1) Also presented is the question 
whether the mailing to the customer of the creditor's check for the sale 
proceeds constitutes a withdrawal of such proceeds by the customer at 
the time of mailing so that, if the check for the sale proceeds is 
mailed on or before the day on which the customer's check for the 
purchase is finally paid, the 90-day rule applies. It may be that a 
check mailed one day will not ordinarily be received by the customer 
until the next. The Board is of the view, however, that when the check 
for sale proceeds is issued and released into the mails, the proceeds 
are to be regarded as withdrawn by the customer; a more liberal 
interpretation would open a way for circumvention. Accordingly, the 
creditor's check should not be mailed nor the sale proceeds otherwise 
released to the customer ``on or before the day'' on which payment for 
the purchase, including final payment of any check given for such 
payment, is received by the creditor, as determined in accordance with 
the principles stated herein.
    (2) Applying the above principles to the schedule of transactions 
described in the second paragraph of this interpretation, the mailing of 
the creditor's check on ``Day 9'' would be consistent with the subject 
exception to Sec. 220.4(c)(8), as interpreted herein, only if the 
customer's check was paid by the drawee bank on ``Day 8''.

[27 FR 3511, Apr. 12, 1962]



Sec. 220.118   Time of payment for mutual fund shares purchased in a special cash account.

    (a) The Board has recently considered the question whether, in 
connection with the purchase of mutual fund shares in a ``special cash 
account'' under the provisions of this part 220,

[[Page 27]]

the 7-day period with respect to liquidation for nonpayment is that 
described in Sec. 220.4(c)(2) or that described in Sec. 220.4(c)(3).
    (b) Section 220.4(c)(2) provides as follows:

    In case a customer purchases a security (other than an exempted 
security) in the special cash account and does not make full cash 
payment for the security within 7 days after the date on which the 
security is so purchased, the creditor shall, except as provided in 
subparagraphs (3)-(7) of this paragraph, promptly cancel or otherwise 
liquidate the transaction or the unsettled portion thereof.

Section 220.4(c)(3), one of the exceptions referred to, provides in 
relevant part as follows:

    If the security when so purchased is an unissued security, the 
period applicable to the transaction under subparagraph (2) of this 
paragraph shall be 7 days after the date on which the security is made 
available by the issuer for delivery to purchasers.

    (c) In the case presented, the shares of the mutual fund (open-end 
investment company) are technically not issued at the time they are sold 
by the underwriter and distributor. Several days may elapse from the 
date of sale before a certificate can be delivered by the transfer 
agent. The specific inquiry to the Board was, in effect, whether the 7-
day period after which a purchase transaction must be liquidated or 
cancelled for nonpayment should run, in the case of mutual fund shares, 
from the time when a certificate for the purchased shares is available 
for delivery to the purchaser, instead of from the date of the purchase.
    (d) Under the general rule of Sec. 220.4 (c)(2) that is applicable 
to purchases of outstanding securities, the 7-day period runs from the 
date of purchase without regard to the time required for the mechanical 
acts of transfer of ownership and delivery of a certificate. This rule 
is based on the principles governing the use of special cash accounts in 
accordance with which, in the absence of special circumstances, payment 
is to be made promptly upon the purchase of securities.
    (e) The purpose of Sec. 220.4(c)(3) is to recognize the fact that, 
when an issue of securities is to be issued at some fixed future date, a 
security that is a part of such issue can be purchased on a ``when-
issued'' basis and that payment may reasonably be delayed until after 
such date of issue, subject to other basic conditions for transactions 
in a special cash account. Thus, unissued securities should be regarded 
as ``made available for delivery to purchasers'' on the date when they 
are substantially as available as outstanding securities are available 
upon purchase, and this would ordinarily be the designated date of 
issuance or, in the case of a stock dividend, the ``payment date''. In 
any case, the time required for the mechanics of transfer and delivery 
of a certificate is not material under Sec. 220.4(c)(3) any more than it 
is under Sec. 220.4(c)(2).
    (f) Mutual fund shares are essentially available upon purchase to 
the same extent as outstanding securities. The mechanics of their 
issuance and of the delivery of certificates are not significantly 
different from the mechanics of transfer and delivery of certificates 
for shares of outstanding securities, and the issuance of mutual fund 
shares is not a future event in a sense that would warrant the extension 
of the time for payment beyond that afforded in the case of outstanding 
securities. Consequently, the Board has concluded that a purchase of 
mutual fund shares is not a purchase of an ``unissued security'' to 
which Sec. 220.4(c)(3) applies, but is a transaction to which 
Sec. 220.4(c)(2) applies.

[27 FR 10885, Nov. 8, 1962]



Sec. 220.119   Applicability of margin requirements to credit extended to corporation in connection with retirement of stock.

    (a) The Board of Governors has been asked whether part 220 was 
violated when a dealer in securities transferred to a corporation 4,161 
shares of the stock of such corporation for a consideration of $33,288, 
of which only 10 percent was paid in cash.
    (b) If the transaction was of a kind that must be included in the 
corporation's ``general account'' with the dealer (Sec. 220.3), it would 
involve an excessive extension of credit in violation of Sec. 220.3 
(b)(1). However, the transaction would be permissible if the transaction 
came within the scope of Sec. 220.4(f)(8),

[[Page 28]]

which permits a ``creditor'' (such as the dealer) to ``Extend and 
maintain credit to or for any customer without collateral or on any 
collateral whatever for any purpose other than purchasing or carrying or 
trading in securities.'' Accordingly, the crucial question is whether 
the corporation, in this transaction, was ``purchasing'' the 4,161 
shares of its stock, within the meaning of that term as used in this 
part.
    (c) Upon first examination, it might seem apparent that the 
transaction was a purchase by the corporation. From the viewpoint of the 
dealer the transaction was a sale, and ordinarily, at least a sale by 
one party connotes a purchase by the other. Furthermore, other indicia 
of a sale/purchase transaction were present, such as a transfer of 
property for a pecuniary consideration. However, when the underlying 
objectives of the margin regulations are considered, it appears that 
they do not encompass a transaction of this nature, where securities are 
transferred on credit to the issuer thereof for the purpose of 
retirement.
    (d) Section 7(a) of the Securities Exchange Act of 1934 requires the 
Board of Governors to prescribe margin regulations ``For the purpose of 
preventing the excessive use of credit for the purchase or carrying of 
securities.'' Accordingly, the provisions of this part are not intended 
to prevent the use of credit where the transaction will not have the 
effect of increasing the volume of credit in the securities markets.
    (e) It appears that the instant transaction would have no such 
effect. When the transaction was completed, the equity interest of the 
dealer was transmuted into a dollar-obligation interest; in lieu of its 
status as a stockholder of the corporation, the dealer became a creditor 
of that corporation. The corporation did not become the owner of any 
securities acquired through the use of credit; its outstanding stock was 
simply reduced by 4,161 shares.
    (f) The meaning of ``sale'' and ``purchase'' in the Securities 
Exchange Act has been considered by the Federal courts in a series of 
decisions dealing with corporate ``insiders'' profits under section 
16(b) of that Act. Although the statutory purpose sought to be 
effectuated in those cases is quite different from the purpose of the 
margin regulations, the decisions in question support the propriety of 
not regarding a transaction as a ``purchase'' where this accords with 
the probable legislative intent, even though, literally, the statutory 
definition seems to include the particular transaction. See Roberts v. 
Eaton (CA 2 1954) 212 F. 2d 82, and cases and other authorities there 
cited. The governing principle, of course, is to effectuate the purpose 
embodied in the statutory or regulatory provision being interpreted, 
even where that purpose may conflict with the literal words. U.S. v. 
Amer. Trucking Ass'ns, 310 U.S. 534, 543 (1940); 2 Sutherland, Statutory 
Construction (3d ed. 1943) ch. 45.
    (g) There can be little doubt that an extension of credit to a 
corporation to enable it to retire debt securities would not be for the 
purpose of ``purchasing * * * securities'' and therefore would come 
within Sec. 220.4(f)(8), regardless of whether the retirement was 
obligatory (e.g., at maturity) or was a voluntary ``call'' by the 
issuer. This is true, it is difficult to see any valid distinction, for 
this purpose, between (1) voluntary retirement of an indebtedness 
security and (2) voluntary retirement of an equity security.
    (h) For the reasons indicated above, it is the opinion of the Board 
of Governors that the extension of credit here involved is not of the 
kind which the margin requirements are intended to regulate and that the 
transaction described does not involve an unlawful extension of credit 
as far as this part is concerned.
    (i) The foregoing interpretation relates, of course, only to cases 
of the type described. It should not be regarded as governing any other 
situations; for example, the interpretation does not deal with cases 
where securities are being transferred to someone other than the issuer, 
or to the issuer for a purpose other than immediate retirement. Whether 
the margin requirements are inapplicable to any such situations would 
depend upon the relevant facts of actual cases presented.

[27 FR 12346, Dec. 13, 1962]

[[Page 29]]

Sec. 220.120  [Reserved]



Sec. 220.121   Applicability of margin requirements to joint account between two creditors.

    (a) The Board has recently been asked whether extensions of credit 
in a joint account between two brokerage firms, a member of a national 
securities exchange (``Firm X'') and a member of the National 
Association of Securities Dealers (``Firm Y'') are subject to the margin 
requirements of this part (Regulation T). It is understood that similar 
joint accounts are not uncommon, and it appears that the margin 
requirements of the regulation are not consistently applied to 
extensions of credit in the accounts.
    (b) When the account in question was opened, Firm Y deposited $5,000 
with Firm X and has made no further deposit in the account, except for 
the monthly settlement described below. Both firms have the privilege of 
buying and selling specified securities in the account, but it appears 
that Firm X initiates most of the transactions therein. Trading volume 
may run from half a million to a million dollars a month. Firm X carries 
the ``official'' ledger of the account and sends Firm Y a monthly 
statement with a complete record of all transactions effected during the 
month. Settlement is then made in accordance with the agreement between 
the two firms, which provides that profits and losses shall be shared 
equally on a fifty-fifty basis. However, all transactions are confirmed 
and reconfirmed between the two on a daily basis.
    (c) Section 220.3(a) provides that

    All financial relations between a creditor and a customer, whether 
recorded in one record or in more than one record, shall be included in 
and be deemed to be part of the customer's general account with the 
creditor, * * *.

and Sec. 220.2(c) defines the term ``customer'' to include

    * * * any person, or any group of persons acting jointly, * * * to 
or for whom a creditor is extending or maintaining any credit * * *

In the course of a normal month's operations, both Firm X and Firm Y are 
at one time or another extending credit to the joint account, since both 
make purchases for the account that are not ``settled'' until the 
month's end. Consequently, the account would be a ``customer'' within 
the above definition.
    (d) Section 220.6(b) provides, with respect to the account of a 
joint adventure in which a creditor participates, that

    * * * the adjusted debit balance of the account shall include, in 
addition to the items specified in Sec. 220.3(d), any amount by which 
the creditor's contribution to the joint adventure exceeds the 
contribution which he would have made if he had contributed merely in 
proportion to his right to share in the profits of the joint adventure.

In addition, the final paragraph of Sec. 220.2(c) states that the 
definition of ``customer''

    * * * includes any joint adventure in which a creditor participates 
and which would be considered a customer of the creditor if the creditor 
were not a participant.

    (e) The above provisions clearly evince the Board's intent that the 
regulation shall cover trading accounts in which a creditor 
participates. If additional confirmation were needed, it is supplied by 
the fact that the Board found it needful specifically to exempt from 
ordinary margin requirements credit extended to certain joint accounts 
in which a creditor participates. These include the account in which 
transactions of odd-lot dealers may be financed under Sec. 220.4(f) (4), 
and the specialist's account under Sec. 220.4(g). Accordingly, the Board 
concluded that the joint account between Firm X and Firm Y is a 
``customer'' within the meaning of the regulation, and that extensions 
of credit in the account are subject to margin requirements.

[31 FR 7169, May 17, 1966]



Sec. 220.122   ``Deep in the money put and call options'' as extensions of credit.

    (a) The Board of Governors has been asked to determine whether the 
business of selling instruments described as ``deep in the money put and 
call options'' would involve an extension of credit for the purposes of 
the Board's regulations governing margin requirements for securities 
transactions. Most of such options would be of the ``call'' type, such 
as the following proposal

[[Page 30]]

that was presented to the Board for its consideration:

    If X stock is selling at $100 per share, the customer would pay 
about $3,250 for a contract to purchase 100 shares of X at $70 per share 
within a 30-day period. The contract would be guaranteed by an exchange 
member, as are standard ``puts'' and ``calls''. When the contract is 
made with the customer, the seller, who will also be the writer of the 
contract, will immediately purchase 100 shares of X at $100 per share 
through the guarantor member firm in a margin account. If the customer 
exercises the option, the shares will be delivered to him; if the option 
is not exercised, the writer will sell the shares in the margin account 
to close out the transaction. As a practical matter, it is anticipated 
that the customer will exercise the option in almost every case.

    (b) An ordinary ``put'' is an option given to a person to sell to 
the writer of the put a specified amount of securities at a stated price 
within a certain time. A ``call'' is an option given to a person to buy 
from the writer a specified amount of securities at a stated price 
within a certain time. To be freely saleable, options must be indorsed, 
or guaranteed, by a member firm of the exchange on which the security is 
registered. The guarantor charges a fee for this service.
    (c) The option embodied in the normal put or call is exercisable 
either at the market price of the security at the time the option is 
written, or some ``points away'' from the market. The price of a normal 
option is modest by comparison with the margin required to take a 
position. Writers of normal options are persons who are satisfied with 
the current price of a security, and are prepared to purchase or sell at 
that price, with the small profit provided by the fee. Moreover, since a 
large proportion of all options are never exercised, a person who 
customarily writes normal options can anticipate that the fee would be 
clear profit in many cases, and he will not be obligated to buy or sell 
the stock in question.
    (d) The stock exchanges require that the writer of an option deposit 
and maintain in his margin account with the indorser 30 percent of the 
current market price in the case of a call (unless he has a long 
position in the stock) and 25 percent in the case of a put (unless he 
has a short position in the stock). Many indorsing firms in fact require 
larger deposits. Under Sec. 220.3(a) of Regulation T, all financial 
relations between a broker and his customer must be included in the 
customer's general account, unless specifically eligible for one of the 
special accounts authorized by Sec. 220.4. Accordingly, the writer, as a 
customer of the member firm, must make a deposit, which is included in 
his general account.
    (e) In order to prevent the deposit from being available against 
other margin purchases, and in effect counted twice, Sec. 220.3(d)(5) 
requires that in computing the customer's adjusted debit balance, there 
shall be included ``the amount of any margin customarily required by the 
creditor in connection with his endorsement or guarantee of any put, 
call, or other option''. No other margin deposit is required in 
connection with a normal put or call option under Regulation T.
    (f) Turning to the ``deep in the money'' proposed option contract 
described above, the price paid by the buyer can be divided into (1) a 
deposit of 30 percent of the current market value of the stock, and (2) 
an additional fixed charge, or fee. To the extent that the price of the 
stock rose during the 30 ensuing days the proposed instrument would 
produce results similar to those in the case of an ordinary profitable 
call, and the contract right would be exercised. But even if the price 
fell, unlike the situation with a normal option, the buyer would still 
be virtually certain to exercise his right to purchase before it 
expired, in order to minimize his loss. The result would be that the 
buyer would not have a genuine choice whether or not to buy. Rather, the 
instrument would have made it possible for him, in effect, to purchase 
stock as of the time the contract was written by depositing 30 percent 
of the stock's current market price.
    (g) It was suggested that the proposed contract is not unusual, 
since there are examples of ordinary options selling at up to 28 percent 
of current market value. However, such examples are of options running 
for 12 months, and reflect expectations of changes in the price of the 
stock over that period.

[[Page 31]]

The 30-day contracts discussed above are not comparable to such 12-month 
options, because instances of true expectations of price changes of this 
magnitude over a 30-day period would be exceedingly rare. And a contract 
that does not reflect such true expectations of price change, plus a 
reasonable fee for the services of the writer, is not an option in the 
accepted meaning of the term.
    (h) Because of the virtual certainty that the contract right would 
be exercised under the proposal described above, the writer would buy 
the stock in a margin account with an indorsing firm immediately on 
writing the contract. The indorsing firm would extend credit in the 
amount of 20 percent of the current market price of the stock, the 
maximum permitted by the current Sec. 220.8 (supplement to Regulation 
T). The writer would deposit the 30 percent supplied by the buyer, and 
furnish the remaining 50 percent out of his own working capital. His 
account with the indorsing firm would thus be appropriately margined.
    (i) As to the buyer, however, the writer would function as a broker. 
In effect, he would purchase the stock for the account, or use, of the 
buyer, on what might be described as a deferred payment arrangement. 
Like an ordinary broker, the writer of the contract described above 
would put up funds to pay for the difference between the price of 
securities the customer wished to purchase and the customer's own 
contribution. His only risk would be that the price of the securities 
would decline in excess of the customer's contribution. True, he would 
be locked in, and could not liquidate the customer's collateral for 30 
days even if the market price should fall in excess of 30 percent, but 
the risk of such a decline is extremely slight.
    (j) Like any other broker who extends credit in a margin account, 
the writer who was in the business of writing and selling such a 
contract would be satisfied with a fixed predetermined amount of return 
on his venture, since he would realize only the fee charged. Unlike a 
writer of ordinary puts and calls, he would not receive a substantial 
part of his income from fees on unexercised contract rights. The 
similarity of his activities to those of a broker, and the dissimilarity 
to a writer of ordinary options, would be underscored by the fact that 
his fee would be a fixed predetermined amount of return similar to an 
interest charge, rather than a fee arrived at individually for each 
transaction according to the volatility of the stock and other 
individual considerations.
    (k) The buyer's general account with the writer would in effect 
reflect a debit for the purchase price of the stock and, on the credit 
side, a deposit of cash in the amount of 30 percent of that price, plus 
an extension of credit for the remaining 70 percent, rather than the 
maximum permissible 20 percent.
    (l) For the reasons stated above, the Board concluded that the 
proposed contracts would involve extensions of credit by the writer as 
broker in an amount exceeding that permitted by the current supplement 
to Regulation T. Accordingly, the writing of such contracts by a 
brokerage firm is presently prohibited by such regulation, and any 
brokerage firm that endorses such a contract would be arranging for 
credit in an amount greater than the firm itself could extend, a 
practice that is prohibited by Sec. 220.7(a).

[35 FR 3280, Feb. 21, 1970]



Sec. 220.123   Partial delayed issue contracts covering nonconvertible bonds.

    (a) During recent years, it has become customary for portions of new 
issues of nonconvertible bonds and preferred stocks to be sold subject 
to partial delayed issue contracts, which have customarily been referred 
to in the industry as ``delayed delivery'' contracts, and the Board of 
Governors has been asked for its views as to whether such transactions 
involve any violations of the Board's margin regulations.
    (b) The practice of issuing a portion of a debt (or equivalent) 
security issue at a date subsequent to the main underwriting has arisen 
where market conditions made it difficult or impossible, in a number of 
instances, to place an entire issue simultaneously. In instances of this 
kind, institutional investors (e.g., insurance companies or

[[Page 32]]

pension funds) whose cash flow is such that they expect to have funds 
available some months in the future, have been willing to subscribe to a 
portion, to be issued to them at a future date. The issuer has been 
willing to agree to issue the securities in two or more stages because 
it did not immediately need the proceeds to be realized from the 
deferred portion, because it could not raise funds on better terms, or 
because it preferred to have a certain portion of the issue taken down 
by an investor of this type.
    (c) In the case of such a delayed issue contract, the underwriter is 
authorized to solicit from institutional customers offers to purchase 
from the issuer, pursuant to contracts of the kind described above, and 
the agreement becomes binding at the underwriters' closing, subject to 
specified conditions. When securities are issued pursuant to the 
agreement, the purchase price includes accrued interest or dividends, 
and until they are issued to it, the purchaser does not, in the case of 
bonds, have rights under the trust indenture, or, in the case of 
preferred stocks, voting rights.
    (d) Securities sold pursuant to such arrangements are high quality 
debt issues (or their equivalent). The purchasers buy with a view to 
investment and do not resell or otherwise dispose of the contract prior 
to its completion. Delayed issue arrangements are not acceptable to 
issuers unless a substantial portion of an issue, not less than 10 
percent, is involved.
    (e) Sections 3(a) (13) and (14) of the Securities Exchange Act of 
1934 provide that an agreement to purchase is equivalent to a purchase, 
and an agreement to sell to a sale. The Board has hitherto expressed the 
view that credit is extended at the time when there is a firm agreement 
to extend such credit (1968 Federal Reserve Bulletin 328; 12 CFR 
207.101; para. 6800 Published Interpretations of the Board of 
Governors). Accordingly, in instances of the kind described above, the 
issuer may be regarded as extending credit to the institutional 
purchaser at the time of the underwriters' closing, when the obligations 
of both become fixed.
    (f) Section 220.7(a) of the Board's Regulation T (12 CFR 220.7(a)), 
with an exception not applicable here, forbids a creditor subject to 
that regulation to arrange for credit on terms on which the creditor 
could not itself extend the credit. Sections 220.4(c) (1) and (2) (12 
CFR 220.4(c) (1) and (2)) provide that a creditor may not sell 
securities to a customer except in good faith reliance upon an agreement 
that the customer will promptly, and in no event in more than 7 full 
business days, make full cash payment for the securities. Since the 
underwriters in question are creditors subject to the regulation, unless 
some specific exception applies, they are forbidden to arrange for the 
credit described above. This result follows because payment is not made 
until more than 7 full business days have passed from the time the 
credit is extended.
    (g) However, Sec. 220.4(c)(3) provides that:

    If the security when so purchased is an unissued security, the 
period applicable to the transaction under subparagraph (2) of this 
paragraph shall be 7 days after the date on which the security is made 
available by the issuer for delivery to purchasers.

    (h) In interpreting Sec. 220.4(c)(3), the Board has stated that the 
purpose of the provision:

    * * * is to recognize the fact that, when an issue of securities is 
to be issued at some future fixed date, a security that is part of such 
issue can be purchased on a ``when-issued'' basis and that payment may 
reasonably be delayed until after such date of issue, subject to other 
basic conditions for transactions in a special cash account. (1962 
Federal Reserve Bulletin 1427; 12 CFR 220.118; para. 5996, Published 
Interpretations of the Board of Governors.)

In that situation, the Board distinguished the case of mutual fund 
shares, which technically are not issued until the certificate can be 
delivered by the transfer agent. The Board held that mutual fund shares 
must be regarded as issued at the time of purchase because they are:

    * * * essentially available upon purchase to the same extent as 
outstanding securities. The mechanics of their issuance and of the 
delivery of certificates are not significantly different from the 
mechanics of transfer and delivery of certificates for shares of 
outstanding securities, and the issuance of mutual fund shares is not a 
future event in the sense that would warrant the extension of

[[Page 33]]

the time for payment beyond that afforded in the case of outstanding 
securities. (ibid.)

The issuance of debt securities subject to delayed issue contracts, by 
contrast with that of mutual fund shares, which are in a status of 
continual underwriting, is a specific single event taking place at a 
future date fixed by the issuer with a view to its need for funds and 
the availability of those funds under current market conditions.
    (i) For the reasons stated above the Board concluded that the 
nonconvertible debt and preferred stock subject to delayed issue 
contracts of the kind described above should not be regarded as having 
been issued until delivered, pursuant to the agreement, to the 
institutional purchaser. This interpretation does not apply, of course, 
to fact situations different from that described in this section.

[36 FR 2777, Feb. 10, 1971]



Sec. 220.124   Installment sale of tax-shelter programs as ``arranging'' for credit.

    (a) The Board has been asked whether the sale by brokers and dealers 
of tax-shelter programs containing a provision that payment for the 
program may be made in installments would constitute ``arranging'' for 
credit in violation of this part 220. For the purposes of this 
interpretation, the term ``tax-shelter program'' means a program which 
is required to be registered pursuant to section 5 of the Securities Act 
of 1933 (15 U.S.C. section 77e), in which tax benefits, such as the 
ability to deduct substantial amounts of depreciation or oil exploration 
expenses, are made available to a person investing in the program. The 
programs may take various legal forms and can relate to a variety of 
industries including, but not limited to, oil and gas exploration 
programs, real estate syndications (except real estate investment 
trusts), citrus grove developments and cattle programs.
    (b) The most common type of tax-shelter program takes the form of a 
limited partnership. In the case of the programs under consideration, 
the investor would commit himself to purchase and the partnership would 
commit itself to sell the interests. The investor would be entitled to 
the benefits, and become subject to the risks of ownership at the time 
the contract is made, although the full purchase price is not then 
required to be paid. The balance of the purchase price after the 
downpayment usually is payable in installments which range from 1 to 10 
years depending on the program. Thus, the partnership would be extending 
credit to the purchaser until the time when the latter's contractual 
obligation has been fulfilled and the final payment made.
    (c) With an exception not applicable here, Sec. 220.7(a) of 
Regulation T provides that:

    A creditor [broker or dealer] may arrange for the extension or 
maintenance of credit to or for any customer of such creditor by any 
person upon the same terms and conditions as those upon which the 
creditor, under the provisions of this part, may himself extend or 
maintain such credit to such customer, but only such terms and 
conditions * * *

    (d) In the case of credit for the purpose of purchasing or carrying 
securities (purpose credit), Sec. 220.8 of the regulation (the 
Supplement to Regulation T) does not permit any loan value to be given 
securities that are not registered on a national securities exchange, 
included on the Board's OTC Margin List, or exempted by statute from the 
regulation.
    (e) The courts have consistently held investment programs such as 
those described above to be ``securities'' for purpose of both the 
Securities Act of 1933 and the Securities Exchange Act of 1934. The 
courts have also held that the two statutes are to be construed 
together. Tax-shelter programs, accordingly, are securities for purposes 
of Regulation T. They also are not registered on a national securities 
exchange, included on the Board's OTC Margin List, or exempted by 
statute from the regulation.
    (f) Accordingly, the Board concludes that the sale by a broker/
dealer of tax-shelter programs containing a provision that payment for 
the program may be made in installments would constitute ``arranging'' 
for the extension of credit to purchase or carry securities in violation 
of the prohibitions of Secs. 220.7(a) and 220.8 of Regulation T.

[37 FR 6568, Mar. 31, 1972]

[[Page 34]]

Sec. 220.125  [Reserved]



Sec. 220.126   Put and call options.

    (a) The Board has been asked several questions about the treatment 
of put and call options and combinations thereof (puts and calls) under 
Regulation T (Part 220). These questions involve Sec. 220.3(d) Adjusted 
debit balance, Sec. 220.3(h) Unissued securities, Sec. 220.4(c) Special 
cash account and Sec. 220.4(d) Special arbitrage account.
    (b) The special cash account under Sec. 220.4(c) may be used only 
for those bona fide transactions in securities in which the creditor 
accepts in good faith the customer's agreement, if he is a purchaser, 
that (if he does not already have sufficient funds in the account) he 
will promptly make full cash payment for the security and does not 
contemplate selling it prior to making such payment, and if he is a 
seller, that he or his principal owns the security and (if it is not 
already held in the account) it will be promptly deposited therein. It 
is the Board's view that subject to these requirements, a creditor may 
effect in a special cash account--
    (1) The purchase or sale for cash of a put or call;
    (2) The exercise of a call, provided that full cash payment for the 
purchased stock is deposited in the account promptly and in any event 
prior to the release of the proceeds of any resale of such security; and
    (3) The endorsement, guarantee or issuance of a put or call if (in 
the case of a put) sufficient funds to purchase the underlying stock or 
(in the case of a call) the underlying stock itself are held in the 
account.
    (c) Generally a put or call option refers to an agreement to sell a 
security or to purchase a security, at some future time. Although the 
agreement may itself be deemed to be a security, it cannot be an 
``unissued'' security, under Sec. 220.3(h) or Sec. 220.4(c)(3), for the 
reasons set forth by the Board in discussing a similar question in 
regard to mutual fund shares (1962 Bulletin 1427; 12 CFR 220.118). 
Accordingly, in respect of a transaction involving puts or calls, 
payment is required within the period of time provided by 
Sec. 220.3(b)(1) if the transaction occurs in the general account (or if 
the transaction occurs in a special cash account, by Sec. 220.4(c)(2)) 
without regard to whether there has been a delay in obtaining the 
endorsement, or for any other reason the option has not yet technically 
been issued.
    (d) A question has been asked whether puts and calls may be 
considered to be securities which are exchangeable or convertible into 
other securities within 90 calendar days, without restriction other than 
the payment of money. If held in a general account, such exchangeable or 
convertible securities are acceptable in lieu of the margin required in 
respect of a short sale under Sec. 220.3(d)(3). If held in a special 
arbitrage account under Sec. 220.4 (d), exchangeable or convertible 
securities will support the sale, for purposes of bona fide arbitrage, 
of the security into which they are so exchangeable or convertible. The 
Board concludes that puts and calls may not be considered, for either 
purpose, as securities that are exchangeable or convertible into other 
securities. The Board's view stems from the policies underlying the 
sections in question.
    (e) The margin restrictions in respect of short sales were imposed 
in order that:

    * * * traders on the short side of the market should not be in a 
position, with a given amount of funds, to exert a greater influence on 
the market than they could with the same amount of funds if they were 
trading on the long side. (Annual Report, Board of Governors, 1937, p. 
208.)

Permitting call options to be used in lieu of the margin required in 
respect of a short sale would be inconsistent with that general policy 
(parallel considerations would apply in the case of puts).
    (f) The use of the special arbitrage account under Sec. 220.4(d) is 
limited to the simultaneous purchase and sale of the same or equivalent 
securities for the purpose of taking advantage of a difference in price. 
Arbitrage is permitted to be carried on without additional deposit of 
margin because it tends to equalize prices between markets and between 
equivalent securities. Because the relatively high initial cost of a put 
or call option must be deducted from the potential profit due to the 
disparity in price between the two

[[Page 35]]

securities, it is not likely that true arbitrage would take place 
between an option and an underlying security. Such options would be 
used, rather, for purposes of ``hedging,'' that is to say, to protect an 
investor against loss while he holds a security in the hope of profiting 
by changes in its price. Such market strategies may be beneficial to 
individual investors. However, they do not perform a comparable market 
function.
    (g) Section 221.2 of this chapter provides that ``a bank may extend 
and may maintain any credit for the purpose specified in Sec. 221.1, 
without regard to the limitations prescribed therein, or in 
Sec. 221.3(t), if the credit comes within any of the following 
descriptions.'' Paragraph (j) contains the following description: ``Any 
credit extended to a member of a national securities exchange for the 
purpose of financing his or his customers' bona fide arbitrage 
transactions in securities.'' The Board has concluded that a purchase of 
a put or call is not embraced within the term in Sec. 220.4(d) ``a 
purchase of a security which is, without restriction other than the 
payment of money exchangeable or convertible * * * into a second 
security'' so as to qualify such purchase, when effected together with 
an offsetting sale of the second security, as a bona fide arbitrage 
transaction, and the Board's conclusion is also applicable to paragraph 
(j) of Sec. 221.2.

[38 FR 5237, Feb. 27, 1973]



Sec. 220.127   Independent broker/dealers arranging credit in connection with the sale of insurance premium funding programs.

    (a) The Board's September 5, 1972, clarifying amendment to 
Sec. 220.4(k) set forth that creditors who arrange credit for the 
acquisition of mutual fund shares and insurance are also permitted to 
sell mutual fund shares without insurance under the provisions of the 
special cash account. It should be understood, of course, that such 
account provides a relatively short credit period of up to 7 business 
days even with so-called cash transactions. This amendment was in 
accordance with the Board's understanding in 1969, when the insurance 
premium funding provisions were adopted in Sec. 220.4(k), that firms 
engaged in a general securities business would not also be engaged in 
the sale and arranging of credit in connection with such insurance 
premium funding programs.
    (b) The 1972 amendment eliminated from Sec. 220.4(k) the requirement 
that, to be eligible for the provisions of the section, a creditor had 
to be the issuer, or a subsidiary or affiliate of the issuer, of 
programs which combine the acquisition of both mutual fund shares and 
insurance. Thus the amendment permits an independent broker/dealer to 
sell such a program and to arrange for financing in that connection. In 
reaching such decision, the Board again relied upon the earlier 
understanding that independent broker/dealers who would sell such 
programs would not be engaged in transacting a general securities 
business.
    (c) In response to a specific view recently expressed, the Board 
agrees that under Regulation T:

    * * * a broker/dealer dealing in special insurance premium funding 
products can only extend credit in connection with such products or in 
connection with the sale of shares of registered investment companies 
under the cash accounts * * * (and) cannot engage in the general 
securities business or sell any securities other than shares * * * (in) 
registered investment companies through a cash account or any other 
manner involving the extension of credit.

    (d) There is a way, of course, as has been indicated, that an 
independent broker/dealer might be able to sell other than shares of 
registered investment companies without creating any conflict with the 
regulation. Such sales could be executed on a ``funds on hand'' basis 
and in the case of payment by check, would have to include the 
collection of such check. It is understood from industry sources, 
however, that few if any independent broker/dealers engage solely in a 
``fund on hand'' type of operation.

[38 FR 11066, May 4, 1973]

[[Page 36]]



Sec. 220.128   Treatment of simultaneous long and short positions in the same margin account when put or call options or combinations thereof on such stock are 
          also outstanding in the account.

    (a) The Board was recently asked whether under Regulation T, 
``Credit by Brokers and Dealers'' (12 CFR part 220), if there are 
simultaneous long and short positions in the same security in the same 
margin account (often referred to as a short sale ``against the box''), 
such positions may be used to supply the place of the deposit of margin 
ordinarily required in connection with the guarantee by a creditor of a 
put or call option or combination thereof on such stock.
    (b) The applicable provisions of regulation T are Sec. 220.3(d)(3) 
and (5) and Sec. 220.3(g)(4) and (5) which provide as follows:

    (d) * * * the adjusted debit balance of a general account * * * 
shall be calculated by taking the sum of the following items:

                                * * * * *

    (3) The current market value of any securities (other than unissued 
securities) sold short in the general account plus, for each security 
(other than an exempted security), such amount as the board shall 
prescribe from time to time in Sec. 220.8(d) (the supplement to 
regulation T) as the margin required for such short sales, except that 
such amount so prescribed in such Sec. 220.8(d) need not be included 
when there are held in the general account * * * the same securities or 
securities exchangeable or convertible within 90 calendar days, without 
restriction other than the payment of money, into such securities sold 
short;

                                * * * * *

    (5) The amount of any margin customarily required by the creditor in 
connection with his endorsement or guarantee of any put, call, or other 
option;

                                * * * * *

    (g) * * * (4) Any transaction which serves to meet the requirements 
of paragraph (e) of this section or otherwise serves to permit any 
offsetting transaction in an account shall, to that extent, be 
unavailable to permit any other transaction in such account.
    (5) For the purposes of this part (regulation T), if a security has 
maximum loan value under paragraph (c)(1) of this section in a general 
account, or under Sec. 220.4(j) in a special convertible debt security 
account, a sale of the same security (even though not the same 
certificate) in such account shall be deemed to be a long sale and shall 
not be deemed to be or treated as a short sale.

    (c) Rule 431 of the New York Stock Exchange requires that a creditor 
obtain a minimum deposit of 25 percent of the current market value of 
the optioned stock in connection with his issuance or guarantee of a 
put, and at least 30 percent in the case of a call (and that such 
position be ``marked to the market''), but permits a short position in 
the stock to serve in lieu of the required deposit in the case of a put 
and a long position to serve in the case of a call. Thus, where the 
appropriate position is held in an account, that position may serve as 
the margin required by Sec. 220.3(d)(5).
    (d) In a short sale ``against the box,'' however, the customer is 
both long and short the same security. He may have established either 
position, properly margined, prior to taking the other, or he may have 
deposited fully paid securities in his margin account on the same day he 
makes a short sale of such securities. In either case, he will have 
directed his broker to borrow securities elsewhere in order to make 
delivery on the short sale rather than using his long position for this 
purpose (see also 17 CFR 240.3b-3).
    (e) Generally speaking, a customer makes a short sale ``against the 
box'' for tax reasons. Regulation T, however, provides in Sec. 220.3(g) 
that the two positions must be ``netted out'' for the purposes of the 
calculations required by the regulation. Thus, the board concludes that 
neither position would be available to serve as the deposit of margin 
required in connection with the endorsement by the creditor of an 
option.
    (f) A similar conclusion obtains under Sec. 220.3(d)(3). That 
section provides, in essence, that the margin otherwise required in 
connection with a short sale need not be included in the account if the 
customer has in the account a long position in the same security. In 
Sec. 220.3(g) (4), however, it is provided that ``[A]ny transaction 
which * * * serves to permit any offsetting transaction in an account 
shall, to that

[[Page 37]]

extent, be unavailable to permit any other transaction in such 
account.'' Thus, if a customer has, for example, a long position in a 
security and that long position has been used to supply the margin 
required in connection with a short sale of the same security, then the 
long position is unavailable to serve as the margin required in 
connection with the creditor's endorsement of a call option on such 
security.
    (g) A situation was also described in which a customer has purported 
to establish simultaneous offsetting long and short positions by 
executing a ``cross'' or wash sale of the security on the same day. In 
this situation, no change in the beneficial ownership of stock has taken 
place. Since there is no actual ``contra'' party to either transaction, 
and no stock has been borrowed or delivered to accomplish the short 
sale, such fictitious positions would have no value for purposes of the 
Board's margin regulations. Indeed, the adoption of such a scheme in 
connection with an overall strategy involving the issuance, endorsement, 
or guarantee of put or call options or combinations thereof appears to 
be manipulative and may have been employed for the purpose of 
circumventing the requirements of the regulations.

[38 FR 12098, May 9, 1973]
Secs. 220.129--220.130  [Reserved]



Sec. 220.131  Application of the arranging section to broker-dealer activities under SEC Rule 144A.

    (a) The Board has been asked whether the purchase by a broker-dealer 
of debt securities for resale in reliance on Rule 144A of the Securities 
and Exchange Commission (17 CFR 230.144A) \1\ may be considered an 
arranging of credit permitted as an ``investment banking service'' under 
Sec. 220.13(a) of Regulation T.
---------------------------------------------------------------------------

    \1\Rule 144A, 17 CFR 230.144A, was originally published in the 
Federal Register at 55 FR 17933, April 30, 1990.
---------------------------------------------------------------------------

    (b) SEC Rule 144A provides a safe harbor exemption from the 
registration requirements of the Securities Act of 1933 for resales of 
restricted securities to qualified institutional buyers, as defined in 
the rule. In general, a qualified institutional buyer is an 
institutional investor that in the aggregate owns and invests on a 
discretionary basis at least $100 million in securities of issuers that 
are not affiliated with the buyer. Registered broker-dealers need only 
own and invest on a discretionary basis at least $10 million of 
securities in order to purchase as principal under the rule. Section 
4(2) of the Securities Act of 1933 provides an exemption from the 
registration requirements for ``transactions by an issuer not involving 
any public offering.'' Securities acquired in a transaction under 
section 4(2) cannot be resold without registration under the Act or an 
exemption therefrom. Rule 144A provides a safe harbor exemption for 
resales of such securities. Accordingly, broker-dealers that previously 
acted only as agents in intermediating between issuers and purchasers of 
privately-placed securities, due to the lack of such a safe harbor, now 
may purchase privately-placed securities from issuers as principal and 
resell such securities to ``qualified institutional buyers'' under Rule 
144A.
    (c) The Board has consistently treated the purchase of a privately-
placed debt security as an extension of credit subject to the margin 
regulations. If the issuer uses the proceeds to buy securities, the 
purchase of the privately-placed debt security by a creditor represents 
an extension of ``purpose credit'' to the issuer. Section 7(c) of the 
Securities Exchange Act of 1934 prohibits the extension of purpose 
credit by a creditor if the credit is unsecured, secured by collateral 
other than securities, or secured by any security (other than an 
exempted security) in contravention of Federal Reserve regulations. If a 
debt security sold pursuant to Rule 144A represents purpose credit and 
is not properly collateralized by securities, the statute and Regulation 
T can be viewed as preventing the broker-dealer from taking the security 
into inventory in spite of the fact that the broker-dealer intends to 
immediately resell the debt security.
    (d) Under Sec. 220.13 of Regulation T, a creditor may arrange credit 
it cannot itself extend if the arrangement is an ``investment banking 
service'' and the credit does not violate Regulations G

[[Page 38]]

and U. Investment banking services are defined to include, but not be 
limited to, ``underwritings, private placements, and advice and other 
services in connection with exchange offers, mergers, or acquisitions, 
except for underwritings that involve the public distribution of an 
equity security with installment or other deferred-payment provisions.'' 
To comply with Regulations G and U where the proceeds of debt securities 
sold under Rule 144A may be used to purchase or carry margin stock and 
the debt securities are secured in whole or in part, directly or 
indirectly by margin stock (see 12 CFR 207.2(f), 207.112, and 221.2(g)), 
the margin requirements of the regulations must be met.
    (e) The SEC's objective in adopting Rule 144A is to achieve ``a more 
liquid and efficient institutional resale market for unregistered 
securities.'' To further this objective, the Board believes it is 
appropriate for Regulation T purposes to characterize the participation 
of broker-dealers in this unique and limited market as an ``investment 
banking service.'' The Board is therefore of the view that the purchase 
by a creditor of debt securities for resale pursuant to SEC Rule 144A 
may be considered an investment banking service under the arranging 
section of Regulation T. The market-making activities of broker-dealers 
who hold themselves out to other institutions as willing to buy and sell 
Rule 144A securities on a regular and continuous basis may also be 
considered an arranging of credit permissible under Sec. 220.13(a) of 
Regulation T.

[Reg. T, 55 FR 29566, July 20, 1990]



Sec. 220.132  Credit to brokers and dealers.

    For text of this interpretation, see Sec. 207.114 of this 
subchapter.

[Reg. T, 61 FR 60167, Nov. 26, 1996]



PART 221--CREDIT BY BANKS FOR THE PURPOSE OF PURCHASING OR CARRYING MARGIN STOCK (REGULATION U)--Table of Contents




Sec.
221.1  Authority, purpose, and scope.
221.2  Definitions.
221.3  General requirements.
221.4  Agreements of nonmember banks.
221.5  Special purpose loans to brokers and dealers.
221.6  Exempted transactions.
221.7  Requirements for the List of OTC margin stocks.
221.8  Supplement, maximum loan value of margin stock and other 
          collateral.

                             Interpretations

221.101  Determination and effect of purpose of loan.
221.102  Designation of New York Stock Exchange for purposes of 
          specialists transactions.
221.103  Loans to brokers or dealers.
221.104  Federal credit unions.
221.105  Arranging for extensions of credit to be made by a bank.
221.106  Reliance in ``good faith'' on statement of purpose of loan.
221.107  Arranging loan to purchase open-end investment company shares.
221.108  Effect of registration of stock subsequent to making of loan.
221.109  Loan to open-end investment company.
221.110  Questions arising under Regulation U.
221.111  Purchase-and-sale substitution on same day.
221.112  Loans by bank in capacity as trustee.
221.113  Loan which is secured indirectly by stock.
221.114  Bank loans to purchase stock of American Telephone and 
          Telegraph Company under Employees' Stock Plan.
221.115  Accepting a purpose statement through the mail without benefit 
          of face-to-face interview.
221.116  Bank loans to replenish working capital used to purchase mutual 
          fund shares.
221.117  When bank in ``good faith'' has not relied on stock as 
          collateral.
221.118  Bank arranging for extension of credit by corporation.
221.119  Status after July 8, 1969, of credit extended prior to that 
          date to purchase or carry mutual fund shares.
221.120  Allocation of stock collateral to purpose and nonpurpose 
          credits to same customer.
221.121  Computation of time periods for acquiring and holding blocks of 
          stock by block positioners.
221.122  Applicability of margin requirements to credit in connection 
          with Insurance Premium Funding Programs.
221.123  Bona fide arbitrage transactions.
221.124  Application of the single-credit rule to loan participations.
221.125  Credit to brokers and dealers.

    Authority: 15 U.S.C. 78c, 78g, 78q, and 78w.


[[Page 39]]


    Source: Reg. U, Secs. 221.1 through 221.8 appear at 48 FR 35076, 
Aug. 3, 1983, unless otherwise noted.

    Editorial Notes: (1) A copy of each form referred to in this part is 
filed as a part of the original document. Copies are available upon 
request to the Board of Governors of the Federal Reserve System or any 
Federal Reserve Bank.

    (2) See the List of CFR Sections Affected in the Finding Aids 
section of this volume for FR citations to Part 221 OTC Margin Stocks 
changes.



Sec. 221.1  Authority, purpose, and scope.

    (a) Authority. Regulation U (``this part'') is issued by the Board 
of Governors of the Federal Reserve System (``the Board'') pursuant to 
the Securities Exchange Act of 1934 (the ``Act'') (15 U.S.C. 78a et 
seq.).
    (b) Purpose and scope. This part imposes credit restrictions upon 
``banks'' (as defined in Sec. 221.2(b) of this part) that extend credit 
for the purpose of buying or carrying margin stock if the credit is 
secured directly or indirectly by margin stock. Banks may not extend 
more than the maximum loan value of the collateral securing such credit, 
as set by the Board in Sec. 221.8 (the Supplement).

[Reg. U, 48 FR 35076, Aug. 3, 1983; 48 FR 37361, Aug. 18, 1983]



Sec. 221.2  Definitions.

    The terms used in this part have the meanings given them in section 
3(a) of the Act or as defined in this section.
    (a) Affiliate means: (1) Any bank holding company of which a bank is 
a subsidiary within the meaning of the Bank Holding Company Act of 1956, 
as amended (12 U.S.C. 1841(d));
    (2) Any other subsidiary of such bank holding company; and
    (3) Any other corporation, business trust, association, or other 
similar organization that is an affiliate as defined in section 2(b) of 
the Banking Act of 1933 (12 U.S.C. 221a(c)).
    (b)(1) Bank has the meaning given to it in section 3(a)(6) of the 
Act (15 U.S.C. 78c(a)(6)) and includes: (i) Any subsidiary of a bank;
    (ii) Any corporation organized under section 25(a) of the Federal 
Reserve Act (12 U.S.C. 611); and
    (iii) Any agency or branch of a foreign bank located within the 
United States.
    (2) Bank does not include: (i) Any savings and loan association,
    (ii) Any credit union,
    (iii) Any lending institution that is an instrumentality or agency 
of the United States, or
    (iv) Any member of a national securities exchange.
    (c) Carrying credit is credit that enables a customer to maintain, 
reduce, or retire indebtedness originally incurred to purchase a 
security that is currently a margin stock.
    (d) Current market value of (1) a security means: (i) If quotations 
are available, the closing sale price of the security on the preceding 
business day, as appearing on any regularly published reporting or 
quotation service; or
    (ii) If there is no closing sale price, the bank may use any 
reasonable estimate of the market value of the security as of the close 
of business on the preceding business day; or
    (iii) If the credit is used to finance the purchase of the security, 
the total cost of purchase, which may include any commissions charged.
    (2) Any other collateral means a value determined by any reasonable 
method in accordance with sound banking practices.
    (e) Customer includes any person or persons acting jointly, to or 
for whom a bank extends or maintains credit.
    (f) Good faith with respect to: (1) The loan value of collateral, 
means that amount (not exceeding 100 per cent of the current market 
value of the collateral) which a bank, exercising sound banking 
judgment, would lend, without regard to the customer's other assets held 
as collateral in connection with unrelated transactions.
    (2) Accepting notice or certification from or on behalf of a 
customer means that the bank or its duly authorized representative is 
alert to the circumstances surrounding the credit, and if in possession 
of information that would cause a prudent person not to accept the 
notice or certification without inquiry, investigates and is satisfied 
that it is truthful;

[[Page 40]]

    (g) Indirectly secured (1) Includes any arrangement with the 
customer under which:
    (i) The customer's right or ability to sell, pledge, or otherwise 
dispose of margin stock owned by the customer is in any way restricted 
while the credit remains outstanding; or
    (ii) The exercise of such right is or may be caused for accelerating 
the maturity of the credit.
    (2) Does not include such an arrangement if:
    (i) After applying the proceeds of the credit, not more than 25 
percent of the value (as determined by any reasonable method) of the 
assets subject to the arrangement is represented by margin stock;
    (ii) It is a lending arrangement that permits accelerating the 
maturity of the credit as a result of a default or renegotiation of 
another credit to the customer by another lender that is not an 
affiliate of the bank;
    (iii) The bank holds the margin stock only in the capacity of 
custodian, depositary, or trustee, or under similar circumstances, and, 
in good faith, has not relied upon the margin stock as collateral; or
    (iv) The bank, in good faith, has not relied upon the margin stock 
as collateral in extending or maintaining the particular credit.
    (h) Margin stock means: (1) Any equity security registered or having 
unlisted trading privileges on a national securities exchange;
    (2) Any OTC margin stock;
    (3) Any OTC security designated as qualified for trading in the 
National Market System under a designation plan approved by the 
Securities and Exchange Commission (NMS security);
    (4) Any debt security convertible into a margin stock or carrying a 
warrant or right to subscribe to or purchase a margin stock;
    (5) Any warrant or right to subscribe to or purchase a margin stock; 
or
    (6) Any security issued by an investment company registered under 
section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8), other 
than:
    (i) A company licensed under the Small Business Investment Company 
Act of 1958, as amended (15 U.S.C. 661); or
    (ii) A company which has at least 95 percent of its assets 
continuously invested in exempted securities (as defined in 15 U.S.C. 
78c(a)(12)); or
    (iii) A company which issues face-amount certificates as defined in 
15 U.S.C. 80a-2(a)(15), but only with respect of such securities.
    (i) Maximum loan value is the percentage of current market value 
assigned by the Board under Sec. 221.8 of this part to specified types 
of collateral. The maximum loan value of margin stock is stated as a 
percentage of its current market value. Puts, calls and combinations 
thereof have no loan value except for purposes of Sec. 221.5(c)(10) of 
this part. All other collateral has good faith loan value.
    (j) OTC margin stock is any equity security not traded on a national 
securities exchange that the Board has determined has the degree of 
national investor interest, the depth and breadth of market, the 
availability of information respecting the security and its issuer, and 
the character and permanence of the issuer to warrant being treated like 
an equity security traded on a national securities exchange. An OTC 
stock is not considered to be an OTC margin stock unless it appears on 
the Board's periodically published list of OTC margin stocks.
    (k) Purpose credit is any credit for the purpose, whether immediate, 
incidental, or ultimate, of buying or carrying margin stock.

[Reg. U, 48 FR 35076, Aug. 3, 1983, as amended at 50 FR 10934, Mar. 19, 
1985]



Sec. 221.3  General requirements.

    (a) Extending, maintaining, and arranging credit--(1) Extending 
credit. No bank shall extend any purpose credit, secured directly or 
indirectly by margin stock, in an amount that exceeds the maximum loan 
value of the collateral securing the credit. The maximum loan value of 
margin stock (set forth in Sec. 221.8 of this part) is assigned by the 
Board in terms of a percentage of the current market value of the margin 
stock. All other collateral has good faith loan value, as defined in 
Sec. 221.2(f) of this part.

[[Page 41]]

    (2) Maintaining credit. A bank may continue to maintain any credit 
initially extended in compliance with this part, regardless of:
    (i) Reduction in the customer's equity resulting from change in 
market prices;
    (ii) Change in the maximum loan value prescribed by this part; or
    (iii) Change in the status of the security (from nonmargin to 
margin) securing an existing purpose credit.
    (3) Arranging credit. No bank may arrange for the extension or 
maintenance of any purpose credit, except upon the same terms and 
conditions under which the bank itself may extend or maintain purpose 
credit under this part.
    (b) Purpose statement. Except for credit extended under paragraph 
(c) of this section, whenever a bank extends credit secured directly or 
indirectly by any margin stock, in an amount exceeding $100,000, the 
bank shall require its customer to execute Form FR U-1 (OMB No. 7100-
0115), which shall be signed and accepted by a duly authorized officer 
of the bank acting in good faith.
    (c) Purpose statement for revolving-credit or multiple-draw 
agreements. (1) If a bank extends credit, secured directly or indirectly 
by any margin stock, in an amount exceeding $100,000, under a revolving-
credit or other multiple-draw agreement, Form FR U-1 can either be 
executed each time a disbursement is made under the agreement, or at the 
time the credit arrangement is originally established.
    (2) If a purpose statement executed at the time the credit 
arrangement is initially made indicates that the purpose is to purchase 
or carry margin stock, the credit will be deemed in compliance with this 
part if the maximum loan value of the collateral at least equals the 
aggregate amount of funds actually disbursed. For any purpose credit 
disbursed under the agreement, the bank shall obtain and attach to the 
executed Form FR U-1 a current list of collateral which adequately 
supports all credit extended under the agreement.
    (d) Single credit rule. (1) All purpose credit extended to a 
customer shall be treated as a single credit, and all the collateral 
securing such credit shall be considered in determining whether or not 
the credit complies with this part.
    (2) A bank that has extended purpose credit secured by margin stock 
may not subsequently extend unsecured purpose credit to the same 
customer unless the combined credit does not exceed the maximum loan 
value of the collateral securing the prior credit.
    (3) If a bank extended unsecured purpose credit to a customer prior 
to the extension of purpose credit secured by margin stock, the credits 
shall be combined and treated as a single credit solely for the purposes 
of the withdrawal and substitution provision of paragraph (f) of this 
section.
    (4) If a bank extends purpose credit secured by any margin stock and 
non-purpose credit to the same customer, the bank shall treat the 
credits as two separate loans and may not rely upon the required 
collateral securing the purpose credit for the nonpurpose credit.
    (e) Mixed collateral loans. A purpose credit secured in part by 
margin stock, and in part by other collateral shall be treated as two 
separate loans, one secured by margin stock and one by all other 
collateral. A bank may use a single credit agreement, if it maintains 
records identifying each portion of the credit and its collateral.
    (f) Withdrawals and substitutions. (1) A bank may permit any 
withdrawal or substitution of cash or collateral by the customer if the 
withdrawal or substitution would not:
    (i) Cause the credit to exceed the maximum loan value of the 
collateral; or
    (ii) Increase the amount by which the credit exceeds the maximum 
loan value of the collateral.
    (2) For purposes of this section, the maximum loan value of the 
collateral on the day of the withdrawal or substitution shall be used.
    (g) Exchange offers. To enable a customer to participate in a 
reorganization, recapitalization or exchange offer that is made to 
holders of an issue of margin stock, a bank may permit substitution of 
the securities received. A nonmargin, nonexempted security acquired in 
exchange for a margin stock shall be treated as if it is margin stock

[[Page 42]]

for a period of 60 days following the exchange.
    (h) Renewals and extensions of maturity. A renewal or extension of 
maturity of a credit need not be considered a new extension of credit if 
the amount of the credit is increased only by the addition of interest, 
service charges, or taxes with respect to the credit.
    (i) Transfers of credit. (1) A transfer of a credit between 
customers or banks or between a bank and a lender subject to part 207 of 
this chapter shall not be considered a new extension of credit if:
    (i) The original credit was extended by a bank in compliance with 
this part or by a lender subject to part 207 of this chapter in a manner 
that would have complied with this part;
    (ii) The transfer is not made to evade this part or part 207 of this 
chapter;
    (iii) The amount of credit is not increased; and
    (iv) The collateral for the credit is not changed.
    (2) Any transfer between customers at the same bank shall be 
accompanied by a statement by the transferor customer describing the 
circumstances giving rise to the transfer and shall be accepted and 
signed by an officer of the bank acting in good faith. The bank shall 
keep such statement with its records of the transferee account.
    (3) When a transfer is made between banks or between a bank and a 
lender subject to part 207 of this chapter, the transferee shall obtain 
a copy of the Form FR U-1 or Form FR G-3 originally filed with the 
transferor and retain the copy with its records of the transferee 
account. If no form was originally filed with the transferor, the 
transferee may accept in good faith a statement from the transferor 
describing the purpose of the loan and the collateral securing it.
    (j) Action for bank's protection. Nothing in this part shall require 
a bank to waive or forego any lien or prevent a bank from taking any 
action it deems necessary in good faith for its protection.
    (k) Mistakes in good faith. A mistake in good faith in connection 
with the extension of maintenance of credit shall not be a violation of 
this part.
    (l) Lack of notice of NMS security designation. Failure to treat an 
NMS security as a margin stock in connection with an extension of credit 
shall not be deemed a violation of this part if the designation is made 
between quarterly publications of the Board's List of OTC Margin Stocks 
and the bank does not have actual notice of the designation.

[Reg. U, 48 FR 35076, Aug. 3, 1983, as amended at 49 FR 35758, Sept. 12, 
1984; 52 FR 35683, Sept. 23, 1987; 56 FR 46111, Sept. 10, 1991; 56 FR 
66120, Dec. 20, 1991]



Sec. 221.4  Agreements of nonmember banks.

    (a) Banks that are not members of the Federal Reserve System shall 
file an agreement that conforms to the requirements of section 8(a) of 
the Act (See Form T-1 for domestic nonmember banks and Form T-2 for all 
other nonmember banks) prior to extending any credit secured by any 
nonexempt security registered on a national securities exchange to 
persons subject to Part 220 of this chapter, who are borrowing in the 
ordinary course of business.
    (b) Any nonmember bank may terminate its agreement upon written 
notification to the Board.



Sec. 221.5  Special purpose loans to brokers and dealers.

    (a) Special purpose loans. A member bank and a nonmember bank that 
is in compliance with Sec. 221.4 of this part, may extend and maintain 
purpose credit to brokers and dealers without regard to the limitations 
set forth in Secs. 221.3 and 221.8 of this part, if the credit is for 
any of the specific purposes and meets the conditions set forth in 
paragraph (c) of this section.
    (b) Written notice. Prior to extending credit for more than a day 
under this section, the bank shall obtain and accept in good faith a 
written notice or certification from the borrower as to the purposes of 
the loan. The written notice or certification shall be evidence of 
continued eligibility for the special credit provisions until the 
borrower notifies the bank that it is no longer eligible or the bank has 
information that would cause a reasonable person to question whether the 
credit is being used for the purpose specified.
    (c) Types of special purpose credit. The types of credit that may be 
extended

[[Page 43]]

and maintained on a good faith basis are as follows:
    (1) Hypothecation loans. Credit secured by hypothecated customer 
securities that, according to written notice received from the broker or 
dealer, may be hypothecated by the broker or dealer under Securities and 
Exchange Commission (``SEC'') rules.
    (2) Temporary advances in payment-against-delivery transactions. 
Credit to finance the purchase or sale of securities for prompt 
delivery, if the credit is to be repaid upon completion of the 
transaction.
    (3) Loans for securities in transit or transfer. Credit to finance 
securities in transit or surrendered for transfer, if the credit is to 
be repaid upon completion of the transaction.
    (4) Intra-day loans. Credit to enable a broker or dealer to pay for 
securities, if the credit is to be repaid on the same day it is 
extended.
    (5) Arbitrage loans. Credit to finance proprietary or customer bona 
fide arbitrage transactions. For the purpose of this section bona fide 
arbitrage means:
    (i) Purchase or sale of a security in one market, together with an 
offsetting sale or purchase of the same security in a different market 
at nearly the same time as practicable, for the purpose of taking 
advantage of a difference in prices in the two markets; or
    (ii) Purchase of a security that is, without restriction other than 
the payment of money, exchangeable or convertible within 90 calendar 
days of the purchase into a second security, together with an offsetting 
sale of the second security at or about the same time, for the purpose 
of taking advantage of a concurrent disparity in the price of the two 
securities.
    (6) Distribution loans. Credit to finance the distribution of 
securities to customers.
    (7) Odd-lot loans. Credit to finance the odd lot transactions of a 
person registered as an odd lot dealer on a national securities 
exchange.
    (8) Emergency loans. Credit that is essential to meet emergency 
needs of the broker-dealer business arising from exceptional 
circumstances.
    (9)  Capital contribution loans. (i) Credit that Board has exempted 
by order upon a finding that the exemption is necessary or appropriate 
in the public interest or for the protection of investors, provided the 
Securities Investor Protection Corporation certifies to the Board that 
the exemption is appropriate; or
    (ii) Credit to a customer for the purpose of making a subordinated 
loan or capital contribution to a broker or dealer in conformity with 
the SEC's net capital rules and the rules of the broker's or dealer's 
examining authority, provided:
    (A) The customer reduces the credit by the amount of any reduction 
in the loan or contribution to the broker or dealer; and
    (B) The credit is not used to purchase securities issued by the 
broker or dealer in a public distribution.
    (10) Loans to specialists. Credit extended to finance the specialty 
security and permitted offset positions of members of a national 
securities exchange who are registered and acting as specialists on the 
exchange, provided the credit is extended on a good faith loan value 
basis.
    (11) OTC market maker credit. Credit to a dealer who has given 
written notice to the bank that it is a ``qualified OTC market maker'' 
in an OTC margin security as defined in SEC Rule 3b-8 (17 CFR 240.3b-8) 
and that the credit will be used solely for the purpose of financing the 
market making activity, provided the credit is extended on a good faith 
loan value basis.
    (12) Third market maker loans. Credit to a dealer who has given 
written notice to the bank that it is a ``qualified third market 
maker,'' as defined in SEC Rule 3b-8 (17 CFR 240.3b-8), and that the 
credit will be used solely for the purpose of financing positions in 
securities assumed as a ``qualified third market maker,'' provided the 
credit is extended on a good faith loan value basis.
    (13) Block positioner credit. Credit to a dealer who has given 
written notice to the bank that it is a ``qualified block positioner'' 
for a block of securities, as defined in SEC Rule 3b-8 (17 CFR 240.3b-
8), and that the credit will be used to finance a position in that

[[Page 44]]

block, provided the credit is extended on a good faith loan value basis.

[Reg. U, 48 FR 35076, Aug. 3, 1983, as amended at 48 FR 37361, Aug. 18, 
1983]



Sec. 221.6  Exempted transactions.

    A bank may extend and maintain purpose credit without regard to the 
provisions of this part if such credit is extended:
    (a) To any bank;
    (b) To any foreign banking insititution;
    (c) Outside the United States;
    (d) To an employee stock ownership plan (ESOP) qualified under 
section 401 of the Internal Revenue Code (26 U.S.C. 401);
    (e) To any ``plan lender'' as defined in part 207 of this chapter to 
finance such a plan, provided the bank has no recourse to any securities 
purchased pursuant to the plan;
    (f) To any customer, other than a broker or dealer, to temporarily 
finance the purchase or sale of securities for prompt deliver, if the 
credit is to be repaid in the ordinary course of business upon 
completion of the transaction;
    (g) Against securities in transit, if the credit is not extended to 
enable the customer to pay for securities purchased in an account 
subject to Part 220 of this chapter; or
    (h) To enable a customer to meet emergency expenses not reasonably 
foreseeable, and if the extension of credit is supported by a statement 
executed by the customer and accepted and signed by an officer of the 
bank acting in good faith. For this purpose, emergency expenses include 
expenses arising from circumstances such as the death or disability of 
the customer, or some other change in circumstances involving extreme 
hardship, not reasonably foreseeable at the time the credit was 
extended. The opportunity to realize monetary gain or to avoid loss is 
not a ``change in circumstances'' for this purpose.



Sec. 221.7  Requirements for the list of OTC margin stocks.

    (a) Requirements for inclusion on the list. Except as provided in 
paragraph (d) of this section, an OTC margin stock shall meet the 
following requirements:
    (1) Four or more dealers stand willing to, and do in fact, make a 
market in such stock and regularly submit bona fide bids and offers to 
an automated quotations system for their own accounts;
    (2) The minimum average bid price of such stock, as determined by 
the Board, is at least $5 per share;
    (3) The stock is registered under section 12 of the Act, is issued 
by an insurance company subject to section (12)(g)(2)(G) of the Act, is 
issued by a closed end investment management company subject to 
registration pursuant to section 8 of the Investment Company Act of 1940 
(15 U.S.C. 80a-8), is an American Depository Receipt (ADR) of a foreign 
issuer whose securities are registered under section 12 of the Act, or 
is a stock of an issuer required to file reports under section 15(d) of 
the Act;
    (4) Daily quotations for both bid and asked prices for the stock are 
continuously available to the general public;
    (5) The stock has been publicly traded for at least six months;
    (6) The issuer had at least $4 million of capital, surplus, and 
undivided profits;
    (7) There are 400,000 or more shares of such stock outstanding in 
addition to shares held beneficially by officers, directors or 
beneficial owners of more than 10 percent of the stock;
    (8) There are 1,200 or more holders of record, as defined in SEC 
Rule 12g5-1 (17 CFR 240.12g5-1), of the stock who are not officers, 
directors or beneficial owners of ten percent or more of the stock, or 
the average daily trading volume of such a stock as determined by the 
Board, is at least 500 shares; and
    (9) The issuer or a predecessor in interest has been in existence 
for at least three years.
    (b) Requirements for continued inclusion on the list. Except as 
provided in paragraph (d) of this section, an OTC margin stock shall 
meet the following requirements:
    (1) Three or more dealers stand willing to, and do in fact make a 
market in such stock and regularly submit bona fide bids and offers to 
an automated quotations system for their own accounts;

[[Page 45]]

    (2) The minimum average bid price of such stocks, as determined by 
the Board, is at least $2 per share;
    (3) The stock is registered as specified in paragraph (a)(3) of this 
section;
    (4) Daily quotations for both bid and asked prices for the stock are 
continuously available to the general public;
    (5) The issuer has at least $1 million of capital, surplus, and 
undivided profits;
    (6) There are 300,000 or more shares of such stock outstanding in 
addition to shares held beneficially by officers, directors, or 
beneficial owners of more than 10 percent of the stock; and
    (7) There continue to be 800 or more holders of record, as defined 
in SEC Rule 12g5-1 (17 CFR 240.12g5-1), of the stock who are not 
officers, directors, or beneficial owners of ten percent or more of the 
stock, or the average daily trading volume of such stock, as determined 
by the Board, is at least 300 shares.
    (c) Removal from the list. The Board shall periodically remove from 
the list any stock that:
    (1) Ceases to exist or of which the issuer ceases to exist, or
    (2) No longer substantially meets the provisions of paragraph (b) of 
this section or Sec. 221.2(j).
    (d) Discretionary authority of Board. Without regard to the other 
paragraphs of this section, the Board may add to, or omit or remove 
from, the OTC margin stock list, any equity security, if in the judgment 
of the Board, such action is necessary or appropriate in the public 
interest.
    (e) Unlawful representations. It shall be unlawful for any bank to 
make, or cause to be made, any representation to the effect that the 
inclusion of a security on the list of OTC margin stocks is evidence 
that the Board or the SEC has in any way passed upon the merits of, or 
given approval to, such security or any transactions therein. Any 
statement in an advertisement or other similar communication containing 
a reference to the Board in connection with the list or stocks on that 
list shall be an unlawful representation.



Sec. 221.8  Supplement, maximum loan value of margin stock and other collateral.

    (a) Maximum loan value of margin stock. The maximum loan value of 
any margin stock expect options is fifty per cent of its current market 
value.
    (b) Maximum loan value of nonmargin stock and all other collateral. 
The maximum loan value of nonmargin stock and all other collateral 
except puts, calls, or combinations thereof is their good faith loan 
value.
    (c) Maximum loan value of options. Except for purposes of 
Sec. 221.5(c)(10) of this part, puts, calls, and combinations thereof 
have no loan value.

                             Interpretations



Sec. 221.101   Determination and effect of purpose of loan.

    (a) Under this part the original purpose of a loan is controlling. 
In other words, if a loan originally is not for the purpose of 
purchasing or carrying registered stocks, changes in the collateral for 
the loan do not change its exempted character.
    (b) However, a so-called increase in the loan is necessarily on an 
entirely different basis. So far as the purpose of the credit is 
concerned, it is a new loan, and the question of whether or not it is 
subject to this part must be determined accordingly.
    (c) Certain facts should also be mentioned regarding the 
determination of the purpose of a loan. Section 221.3(a) provides in 
that connection that ``a bank may rely upon a statement with respect 
thereto, accepted by the bank in good faith, signed by an officer of the 
bank or by the borrower.'' The requirement of ``good faith'' is of vital 
importance here. Its application will necessarily vary with the facts of 
the particular case, but it is clear that the bank must be alert to the 
circumstances surrounding the loan. For example, if the loan is to be 
made to a customer who is not a broker or dealer in securities, but such 
a broker or dealer is to deliver registered stocks to secure the loan or 
is to receive the proceeds of the loan, the bank would be put on notice 
that the loan would probably be subject to this part. It could

[[Page 46]]

not accept in good faith a statement to the contrary without obtaining a 
reliable and satisfactory explanation of the situation.
    (d) Furthermore, the purpose of a loan means just that. It cannot be 
altered by some temporary application of the proceeds. For example, if a 
borrower is to purchase Government securities with the proceeds of a 
loan, but is soon thereafter to sell such securities and replace them 
with registered stocks, the loan is clearly for the purpose of 
purchasing or carrying registered stocks.

[12 FR 40, Jan. 3, 1947]



Sec. 221.102   Designation of New York Stock Exchange for purposes of specialists transactions.

    (a) As amended effective July 20, 1949, Sec. 221.3(o) removes the 
maximum loan level requirements applicable to credit for financing the 
functions of ``specialists'' on an exchange designated by the Board of 
Governors of the Federal Reserve System.
    (b) Effective July 20, 1949, the Board of Governors of the Federal 
Reserve System has designated the New York Stock Exchange pursuant to 
Sec. 221.3(o), as amended, this designation to be effective until 
further notice.

[14 FR 4665, July 27, 1949]



Sec. 221.103   Loans to brokers or dealers.

    Questions have arisen as to the adequacy of statements received by 
lending banks under Sec. 221.3(a) in the case of loans to brokers or 
dealers secured by stock where the proceeds of the loans are to be used 
to finance customer transactions involving the purchasing or carrying of 
registered stocks.
    While some such loans may qualify for exemption under Sec. 221.2, 
unless they do qualify for such an exemption they are subject to this 
part. For example, if a loan so secured is made to a broker to furnish 
cash working capital for the conduct of his brokerage business (i.e., 
for purchasing and carrying securities for the account of customers), 
the maximum loan value prescribed in Sec. 221.4 would be applicable 
unless the loan should be of a kind exempted by Sec. 221.2. This result 
would not be affected by the fact that the stock given as security for 
the loan was or included stock owned by the brokerage firm.
    In view of the foregoing, the statement referred to in Sec. 221.3(a) 
which the lending bank may accept and rely upon in good faith in 
determining the purpose of the loan would be inadequate if the form of 
statement accepted or used by the bank failed to call for answers which 
would indicate whether or not the loan was of the kind discussed above.

[17 FR 191, Jan. 8, 1952]



Sec. 221.104   Federal credit unions.

    For text of this interpretation, see Sec. 220.110 of this 
subchapter.

[18 FR 4592, Aug. 5, 1953]



Sec. 221.105   Arranging for extensions of credit to be made by a bank.

    For text of this interpretation, see Sec. 220.111 of this 
subchapter.

[18 FR 5505, Sept. 15, 1953]



Sec. 221.106   Reliance in ``good faith'' on statement of purpose of loan.

    (a) Certain situations have arisen from time to time under this part 
wherein it appeared doubtful that, in the circumstances, the lending 
banks may have been entitled to rely upon the statements accepted by 
them in determining whether the purposes of certain loans were such as 
to cause the loans to be not subject to the part.
    (b) The use by a lending bank of a statement in determining the 
purpose of a particular loan is, of course, provided for by 
Sec. 221.3(a). However, under that paragraph a lending bank may ``rely'' 
upon any such statement only if it is ``accepted by the bank in good 
faith.'' As the Board stated in the interpretation contained in 
Sec. 221.101, the ``requirement of `good faith' is of vital 
importance''; and, to fulfill such requirement, ``it is clear that the 
bank must be alert to the circumstances surrounding the loan''.
    (c) Obviously, such a statement would not be accepted by the bank in 
``good faith'' if at the time the loan was made the bank had knowledge, 
from any source, of facts or circumstances which were contrary to the 
natural purport of the statement, or which were sufficient reasonably to 
put

[[Page 47]]

the bank on notice of the questionable reliability or completeness of 
the statement.
    (d) Furthermore, the same requirement of ``good faith'' is to be 
applied whether the statement accepted by the bank is signed by the 
borrower or by an officer of the bank. In either case, ``good faith'' 
requires the exercise of special diligence in any instance in which the 
borrower is not personally known to the bank or to the officer who 
processes the loan.
    (e) The interpretation set forth in Sec. 221.101 contains an example 
of the application of the ``good faith'' test. There it was stated that 
``if the loan is to be made to a customer who is not a broker or dealer 
in securities, but such a broker or dealer is to deliver registered 
stocks to secure the loan or is to receive the proceeds of the loan, the 
bank would be put on notice that the loan would probably be subject to 
this part. It could not accept in good faith a statement to the contrary 
without obtaining a reliable and satisfactory explanation of the 
situation''.
    (f) Moreover, and as also stated by the aforementioned 
interpretation contained in Sec. 221.101, the purpose of a loan, of 
course, ``cannot be altered by some temporary application of the 
proceeds. For example, if a borrower is to purchase Government 
securities with the proceeds of a loan, but is soon thereafter to sell 
such securities and replace them with registered stocks, the loan is 
clearly for the purpose of purchasing or carrying registered stocks''. 
The purpose of a loan therefore, should not be determined upon a narrow 
analysis of the immediate use to which the proceeds of the loan are put. 
Accordingly, a bank acting in ``good faith'' should carefully scrutinize 
cases in which there is any indication that the borrower is concealing 
the true purpose of the loan, and there would be reason for special 
vigilance if registered stocks are substituted for bonds or unregistered 
stocks soon after the loan is made, or on more than one occasion.
    (g) Similarly, the fact that a loan made on the borrower's signature 
only, for example, becomes secured by registered stock shortly after the 
disbursement of the loan usually would afford reasonable grounds for 
questioning the bank's apparent reliance upon merely a statement that 
the purpose of the loan was not to purchase or carry registered stock.
    (h) These examples are, of course, by no means exhaustive. They 
simply illustrate the fundamental fact that no statement accepted by a 
bank is of any value for the purposes of the regulation unless 
``accepted by the bank in good faith'', and that ``good faith'' 
requires, among other things, reasonable diligence to learn the truth.

[18 FR 5505, Sept. 15, 1953]



Sec. 221.107   Arranging loan to purchase open-end investment company shares.

    For text of this interpretation, see Sec. 220.112 of this 
subchapter.

[20 FR 1643, Mar. 18, 1955]



Sec. 221.108   Effect of registration of stock subsequent to making of loan.

    (a) The Board recently was asked whether a loan by a bank to enable 
the borrower to purchase a newly issued stock during the initial over-
the-counter trading period prior to the stock becoming registered 
(listed) on a national securities exchange would be subject to this 
part. The Board replied that, until such stock is so registered, this 
would not be applicable to such a loan.
    (b) The Board has now been asked what the position of the lending 
bank would be under this part if, after the date on which the stock 
should become registered, such bank continued to hold a loan of the kind 
just described. It is assumed that the loan was in an amount greater 
than the maximum loan value for the collateral specified in this part.
    (c) If the stock should become registered, the loan would then be 
for the purpose of purchasing or carrying a registered stock, and, if 
secured directly or indirectly by any stock, would be subject to this 
part as from the date the stock was registered. Under this part, this 
does not mean that the bank would have to obtain reduction of the loan 
in order to reduce it to an amount no more than the specified maximum 
loan value. It does mean, however, that so long as the

[[Page 48]]

loan balance exceeded the specified maximum loan value, the bank could 
not permit any withdrawals or substitutions of collateral that would 
increase such excess; nor could the bank increase the amount of the loan 
balance unless there was provided additional collateral having a maximum 
loan value at least equal to the amount of the increase. In other words, 
as from the date the stock should become registered, the loan would be 
subject to this part in exactly the same way, for example, as a loan 
subject to this part that became under-margined because of a decline in 
the current market value of the loan collateral or because of a decrease 
by the Board in the maximum loan value of the loan collateral.

[21 FR 1094, Feb. 17, 1956]



Sec. 221.109   Loan to open-end investment company.

    In response to a question regarding a possible loan by a bank to an 
open-end investment company that customarily purchases stocks registered 
on a national securities exchange, the Board stated that in view of the 
general nature and operations of such a company, any loan by a bank to 
such a company should be presumed to be subject to this part as a loan 
for the purpose of purchasing or carrying registered stocks. This would 
not be altered by the fact that the open-end company had used, or 
proposed to use, its own funds or proceeds of the loan to redeem some of 
its own shares, since mere application of the proceeds of a loan to some 
other use cannot prevent the ultimate purpose of a loan from being to 
purchase or carry registered stocks.

[23 FR 8945, Nov. 18, 1958]



Sec. 221.110   Questions arising under Regulation U.

    (a) Regulation U governs ``any loan'' made by a bank ``secured 
directly or indirectly by any stock for the purpose of purchasing or 
carrying any stock registered on a national securities exchange'', with 
certain exceptions, and provides that the maximum loan value of such 
stock shall be a fixed percentage ``of its current market value, as 
determined by any reasonable method.''
    (b) The Board of Governors has recently had occasion to consider the 
application of this language to the three following questions:
    (1) Loan secured by stock. First, is a loan to purchase or carry 
registered stock subject to Regulation U where made in unsecured form, 
if stock is subsequently deposited as security with the lending bank, 
and surrounding circumstances indicate that the parties originally 
contemplated that the loan should be so secured? The Board answered that 
in a case of this kind, the loan would be subject to the Regulation, for 
the following reasons.
    (i) The Board has long held, in the closely related purpose area, 
that the original purpose of a loan should not be determined upon a 
narrow analysis of the technical circumstances under which a loan is 
made. Instead, the fundamental purpose of the loan is considered to be 
controlling. Indeed, ``the fact that a loan made on the borrower's 
signature only, for example, becomes secured by registered stock shortly 
after the disbursement of the loan'' affords reasonable grounds for 
questioning whether the bank was entitled to rely upon the borrower's 
statement as to the purpose of the loan. 1953 Bull. 951.
    (ii) Where security is involved, standards of interpretation should 
be equally searching. If, for example, the original agreement between 
borrower and bank contemplated that the loan should be secured by 
registered stock, and such stock is in fact delivered to the bank when 
available, the transaction must be regarded as fundamentally a secured 
loan. This view is strengthened by the fact that the regulation applies 
to a loan ``secured directly or indirectly by any stock.''
    (2) Loan to acquire controlling shares. (i) The second question is 
whether the Regulation governs a stock-secured loan made for the 
business purpose of purchasing a controlling interest in a corporation, 
or whether such a loan would be exempt on the ground that the Regulation 
is directed solely toward purchases of stock for speculative or 
investment purposes. The Board answered that a stock-secured loan for 
the purpose of purchasing or carrying

[[Page 49]]

registered stock is subject to the Regulation, regardless of the reason 
for which the purchase is made.
    (ii) The answer is required, in the Board's view, since the language 
of the Regulation is explicitly inclusive, covering ``any loan * * * 
secured directly or indirectly by any stock for the purpose of 
purchasing or carrying any stock registered on a national securities 
exchange.'' Moreover, the withdrawal in 1945 of the original section 
2(e) of the Regulation, which exempted ``any loan for the purpose of 
purchasing a stock from or through a person who is not a member of a 
national securities exchange * * *'' plainly implies that transactions 
of the sort described are now subject to the general prohibition of 
section 1.
    (3) Determination of ``current market value.'' (i) The third 
question is how to determine the ``current market value'' of a block of 
registered stock which represents a controlling interest in a 
corporation where the block is purchased at a price in excess of the 
average of bid and asked prices on the Exchange for the day of the 
purchase, and also in excess of the average price on the Exchange over 
recent months, while the parties to the loan, on the other hand, believe 
the purchase to be a bargain and report opportunities to resell at a 
price which is higher still. In a case of this kind, the Board believes 
that the current market value of the block is the price at which the 
actual purchase was made.
    (ii) The Supplement to Regulation U states that current market value 
shall be determined by ``any reasonable method''. Regulation T, which, 
while not controlling, may throw some light on the problem, provides 
that the current market value of a security ``throughout the day of its 
purchase or sale'' shall be ``total cost or the net proceeds of its 
sale.'' The Board is of the opinion that actual sale price in an arm's 
length transaction provides the best evidence of value. Particularly in 
circumstances such as those indicated above, it must be assumed that 
this price reflects intangible factors including control.

[24 FR 1858, Mar. 14, 1959]



Sec. 221.111   Purchase-and-sale substitution on same day.

    (a) Amendments to part 221, effective June 15, 1959 (24 FR 3867), 
deal, among other things, with changes in collateral for a ``restricted 
loan'', i.e., a bank loan that exceeds the maximum loan value of the 
collateral therefor. In connection with those amendments an inquiry has 
been received as to whether the bank may permit a substitution of 
collateral for such a loan under the amended part in a case in which the 
excess of the loan over the maximum loan value is not thereby increased 
and the substitution occurs in the form of a purchase and sale of 
collateral, both the purchase and sale orders being executed on the same 
day.
    (b) The bank may permit such a purchase-and-sale substitution under 
the amended part without additional collateral or reduction in the loan 
if it reasonably ascertains, and has evidence thereof in its records, 
that the purchase and sale orders were executed on the same day. The 
controlling events which must occur on the same day are the executions 
of the purchase order and sale order, and not the bank's receipt or 
release of stock certificates. It may be noted that the result is 
substantially similar to that under the June 15, 1959, amendments to 
Part 220 of this subchapter. Substitutions that do not involve a same-
day purchase and sale are subject to the withdrawal limitations under 
both parts.

[24 FR 4698, June 10, 1959]



Sec. 221.112   Loans by bank in capacity as trustee.

    (a) The Board's advice has been requested whether a bank's 
activities in connection with the administration of an employees' 
savings plan are subject to this Part 221.
    (b) Under the plan, any regular, full-time employee may participate 
by authorizing the sponsoring company to deduct a percentage of his 
salary and wages and transmit the same to the bank as trustee. Voluntary 
contributions by the company are allocated among the participants. A 
participant may direct that funds held for him be invested by the 
trustee in insurance,

[[Page 50]]

annuity contracts, Series E Bonds, or in one or more of three specified 
securities which are listed on a stock exchange. Loans to purchase the 
stocks may be made to participants from funds of the trust, subject to 
approval of the administrative committee, which is composed of five 
participants, and of the trustee. The bank's right to approve is said to 
be restricted to the mechanics of making the loan, the purpose being to 
avoid cumbersome procedures.
    (c) Loans are secured by the credit balance of the borrowing 
participants in the savings fund, including stock, but excluding (in 
practice) insurance and annuity contracts and government securities. 
Additional stocks may be, but, in practice, have not been pledged as 
collateral for loans. Loans are not made, under the plan, from bank 
funds, and participants do not borrow from the bank upon assignment of 
the participants' accounts in the trust.
    (d) It is urged that loans under the plan are not subject to this 
Part 221 because a loan should not be considered as having been made by 
a bank where the bank acts solely in its capacity of trustee, without 
exercise of any discretion.
    (e) The Board reviewed this question upon at least one other 
occasion in recent years, and full consideration has again been given to 
the matter. After considering the arguments on both sides, the Board has 
reaffirmed its earlier view that, in conformity with an interpretation 
not published in CFR which was published at page 874 of the 1946 Federal 
Reserve Bulletin, this Part 221 applies to the activities of a bank when 
it is acting in its capacity as trustee. Although the bank in that case 
had at best a limited discretion with respect to loans made by it in its 
capacity as trustee, the Board concluded that this fact did not affect 
the application of the regulation to such loans.

[25 FR 5923, June 28, 1960]



Sec. 221.113   Loan which is secured indirectly by stock.

    (a) A question has been presented to the Board as to whether a loan 
by a bank to a mutual investment fund is ``secured * * * indirectly by 
any stock'' within the meaning of Sec. 221.1, so that the loan should be 
treated as subject to the regulation.
    (b) Briefly, the facts are as follows. Fund X, an open-end 
investment company, entered into a loan agreement with Bank Y, which was 
(and still is) custodian of the securities which comprise the portfolio 
of Fund X. The agreement includes the following terms, which are 
material to the question before the Board;
    (1) Fund X agrees to have an ``asset coverage'' (as defined in the 
agreements) of 400 percent of all its borrowings, including the proposed 
borrowing, at the time when it takes down any part of the loan.
    (2) Fund X agrees to maintain an ``asset coverage'' of at least 300 
percent of its borrowings at all times.
    (3) Fund X agrees not to amend its custody agreement with Bank Y, or 
to substitute another custodian without Bank Y's consent.
    (4) Fund X agrees not to mortgage, pledge, or otherwise encumber any 
of its assets elsewhere than with Bank Y.
    (c) In Sec. 221.109 the Board stated that because of ``the general 
nature and operations of such a company'', any ``loan by a bank to an 
open-end investment company that customarily purchases stocks registered 
on a national securities exchange * * * should be presumed to be subject 
to this part as a loan for the purpose of purchasing or carrying 
registered stocks'' (``purpose loans''). The Board's interpretation went 
on to say that--

    This would not be altered by the fact that the open-end company had 
used, or proposed to use, its own funds or proceeds of the loan to 
redeem some of its own shares * * *.

    (d) Accordingly, the loan by Bank Y to Fund X was and is a ``purpose 
loan''. However, a loan by a bank is not subject to this part unless (1) 
it is a purpose loan and (2) it is ``secured directly or indirectly by 
any stock''. In the present case, the loan is not ``secured directly'' 
by stock in the ordinary sense, since the portfolio of Fund X is not 
pledged to secure the credit from Bank Y. But the word ``indirectly'' 
must signify some form of security arrangement other than the ``direct'' 
security which arises from the ordinary ``transaction that gives 
recourse

[[Page 51]]

against a particular chattel or land or against a third party on an 
obligation'' described in the American Law Institute's Restatement of 
the Law of Security, page 1. Otherwise the word ``indirectly'' would be 
superflous, and a regulation, like a statute, must be construed if 
possible to give meaning to every word.
    (e) The Board has indicated its view that any arrangement under 
which stock is more readily available as security to the lending bank 
than to other creditors of the borrower may amount to indirect security 
within the meaning of this part. In an interpretation published at 
Sec. 221.110 it stated.

    The Board has long held, in the * * * purpose area, that the 
original purpose of a loan should not be determined upon a narrow 
analysis of the technical circumstances under which a loan is made * * * 
Where security is involved, standards of interpretation should be 
equally searching.

In its pamphlet issued for the benefit and guidance of banks and bank 
examiners, entitled ``Questions and Answers Illustrating Application of 
Regulation U'', the Board said

    In determining whether a loan is ``indirectly'' secured, it should 
be borne in mind that the reason the Board has thus far refrained * * * 
from regulating loans not secured by stock has been to simplify 
operations under the regulation. This objective of simplifying 
operations does not apply to loans in which arrangements are made to 
retain the substance of stock collateral while sacrificing only the 
form.

    (f) A wide variety of arrangements as to collateral can be made 
between bank and borrower which will serve, to some extent, to protect 
the interest of the bank in seeing that the loan is repaid, without 
giving the bank a conventional direct ``security'' interest in the 
collateral. Among such arrangements which have come to the Board's 
attention are the following:
    (1) The borrower may deposit stock in the custody of the bank.

An arrangement of this kind may not, it is true, place the bank in the 
position of a secured creditor in case of bankruptcy, or even of 
conflcting claims, but it is likely effectively to strengthen the bank's 
position. Section 221.3(f), which provides that

    A loan need not be treated as collateralled by securities which are 
held by the bank only in the capacity of custodian, depositary or 
trustee, or under similar circumstances, if the bank in good faith has 
not relied upon such securities as collateral in the making or 
maintenance of the particular loan.

does not exempt a deposit of this kind from the impact of the regulation 
unless it is clear that the bank ``has not relied'' upon the securities 
deposited with it.
    (2) A borrower may not deposit his stock with the bank, but agree 
not to pledge or encumber his assets elsewhere while the loan is 
outstanding.

Such an agreement may be difficult to police, yet it serves to some 
extent to protect the interest of the bank if only because the future 
credit standing and business reputation of the borrower will depend upon 
his keeping his word. If the assets covered by such an agreement include 
stock, then, as under paragraphs (f)(1) and (3) of this section, the 
stock is ``indirect security'' for the loan within the meaning of this 
part.
    (3) The borrower may deposit stock with a third party who agrees to 
hold the stock until the loan has been paid off. Here, even though the 
parties may purport to provide that the stock is not ``security'' for 
the loan (for example, by agreeing that the stock may not be sold and 
the proceeds applied to the debt if the borrower fails to pay), the mere 
fact that the stock is out of the borrower's control for the duration of 
the loan serves to some extent to protect the bank.
    (g) The three instances described above are merely illustrative. 
Other methods, or combinations of methods, may serve a similar purpose. 
The conclusion that any given arrangement constitutes ``indirect 
security'' may, but need not, be reinforced by facts such as that the 
stock in question was purchased with proceeds of the loan, that the 
lending bank suggests or insists upon the arrangement, or that the loan 
would probably be subject to criticism by supervisory authorities were 
it not for the protective arrangement.
    (h) Accordingly, the Board concludes that the loan by Bank Y to Fund 
X is indirectly secured by the portfolio of

[[Page 52]]

the fund and must be treated by the bank as a regulated loan.

[26 FR 4884, June 2, 1961]



Sec. 221.114   Bank loans to purchase stock of American Telephone and Telegraph Company under Employees' Stock Plan.

    (a) The Board of Governors recently interpreted Part 221 (Regulation 
U) in connection with proposed loans by a bank to persons who are 
purchasing shares of stock of American Telephone and Telegraph Company 
pursuant to its Employees' Stock Plan.
    (b) According to the current offering under the Plan, an employee of 
the AT&T system may purchase shares through regular deductions from his 
pay over a period of 24 months. At the end of that period, a certificate 
for the appropriate number of shares will be issued to the participating 
employee by AT&T. Each employee is entitled to purchase, as a maximum, 
shares that will cost him approximately three-fourths of his annual base 
pay. Since the program extends over two years, it follows that the 
payroll deductions for this purpose may be in the neighborhood of 38 
percent of base pay and a larger percentage of ``take-home pay.'' 
Deductions of this magnitude are in excess of the saving rate of many 
employees.
    (c) Certain AT&T employees, who wish to take advantage of the 
current offering under the Plan, are the owners of shares of AT&T stock 
that they purchased under previous offerings. A bank proposed to receive 
such stock as collateral for a ``living expenses'' loan that will be 
advanced to the employee in monthly installments over the 24-month 
period, each installment being in the amount of the employee's monthly 
payroll deduction under the Plan. The aggregate amount of the advances 
over the 24-month period would be substantially greater than the maximum 
loan value of the collateral as prescribed in Sec. 221.4, the Supplement 
to Regulation U (30 percent, at the present time).
    (d) In the opinion of the Board of Governors, a loan of the kind 
described would violate this part 221 if it exceeded the maximum loan 
value of the collateral. The regulation applies to any stock-secured 
loan for the purpose of purchasing or carrying stock registered on a 
national securities exchange (Sec. 221.1(a)). Although the proposed loan 
would purport to be for living expenses, it seems quite clear, in view 
of the relationship of the loan to the Employees' Stock Plan, that its 
actual purpose would be to enable the borrower to purchase AT&T stock, 
which is registered on a national securities exchange. At the end of the 
24-month period the borrower would acquire a certain number of shares of 
that stock and would be indebted to the lending bank in an amount 
approximately equal to the amount he would pay for such shares. In these 
circumstances, the loan by the bank must be regarded as a loan ``for the 
purpose of purchasing'' the stock, and therefore it is subject to the 
limitations prescribed by this part 221. This conclusion follows from 
the provisions of the part, and it may also be observed that a contrary 
conclusion could largely defeat the basic purpose of the margin 
regulations.
    (e) Accordingly, the Board concluded that a loan of the kind 
described may not be made in an amount exceeding the maximum loan value 
of the collateral, as prescribed by the current Supplement to Regulation 
U (Sec. 221.4).

[27 FR 5538, June 12, 1962]



Sec. 221.115  Accepting a purpose statement through the mail without benefit of face-to-face interview.

    For text of an interpretation on this subject, see Sec. 207.110 of 
this subchapter (15 U.S.C. 78g).

[43 FR 30039, July 13, 1978]



Sec. 221.116   Bank loans to replenish working capital used to purchase mutual fund shares.

    (a) In a situation recently considered by the Board of Governors, a 
business concern (``X'') proposed to purchase mutual fund shares, from 
time to time, with proceeds from its accounts receivable, then pledge 
the shares with a bank in order to secure working capital. The bank was 
prepared to lend amounts equal to 70 percent of the current value of the 
shares as they were purchased by X. If the loans were subject to this 
part (Regulation U), only 30

[[Page 53]]

percent of the current market value of the shares could be lent.
    (b) The immediate purpose of the loans would be to replenish X's 
working capital. However, as time went on, X would be acquiring mutual 
fund shares at a cost that would exceed the net earnings it would 
normally have accumulated, and would become indebted to the lending bank 
in an amount approximately 70 percent of the prices of said shares.
    (c) The Board held that the loans were for the purpose of purchasing 
the shares, and therefore subject to the limitations prescribed by this 
part. As pointed out in Sec. 221.114 with respect to a similar program 
for putting a high proportion of cash income into stock, then borrowing 
against the stock to meet needs for which the cash would otherwise have 
been required, a contrary conclusion could largely defeat the basic 
purpose of the margin regulations.
    (d) Also considered was an alternative proposal under which X would 
deposit proceeds from accounts receivable in a time account for 1 year, 
before using those funds to purchase mutual fund shares. The Board held 
that this procedure would not change the situation in any significant 
way. Once the arrangement was established, the proceeds would be flowing 
into the time account at the same time that similar amounts were 
released to purchase the shares, and over any extended period of time 
the result would be the same. Accordingly, the Board concluded that bank 
loans made under the alternative proposal would similarly be subject to 
this part.

[32 FR 8357, June 10, 1967]



Sec. 221.117   When bank in ``good faith'' has not relied on stock as collateral.

    (a) The Board has received questions regarding the circumstances in 
which an extension or maintenance of credit will not be deemed to be 
``indirectly secured'' by stock as indicated by the phrase, ``if the 
bank in good faith has not relied upon such stock as collateral,'' 
contained in clause (2) of a recent amendment to Sec. 221.3(c) of 
Regulation U. A similar phrase is contained in Sec. 207.2(g) of 
Regulation G of this chapter and the following applies to that 
paragraph, insofar as appropriate and consistent.
    (b) In response, the Board noted that in amending this portion of 
the regulation it was indicated that one of the purposes of the change 
was to make clear that Sec. 221.3(c) does not apply to certain routine 
negative covenants in loan agreements. Also, while the question of 
whether or not a bank has relied upon particular stock as collateral is 
necessarily a question of fact to be determined in each case in the 
light of all relevant circumstances, some indication that the bank had 
not relied upon stock as collateral would seem to be afforded by such 
circumstances as the fact that (1) the bank had obtained a reasonably 
current financial statement of the borrower and this statement could 
reasonably support the loan, and (2) the loan was not payable on demand 
or because of fluctuations in market value of the stock, but instead was 
payable on one or more fixed maturities which were typical of maturities 
applied by the bank to loans otherwise similar except for not involving 
any possible question of stock collateral.

[33 FR 7485, May 21, 1968]



Sec. 221.118   Bank arranging for extension of credit by corporation.

    For text of this interpretation, see Sec. 207.103 of this 
subchapter.

[34 FR 7005, Apr. 29, 1969]



Sec. 221.119   Status after July 8, 1969, of credit extended prior to that date to purchase or carry mutual fund shares.

    (a) Prior to July 8, 1969, the margin and other requirements of 
Regulations G and U applied to credit extended to purchase or carry 
shares of a mutual fund (secured by certain described collateral), if 
(1) the portfolio of the fund did ``customarily include'' securities 
that would themselves have been subject to the regulations and (2) the 
fund was included in a list of such funds that the Board published for 
this purpose.
    (b) It was found that virtually all mutual funds met the 
``customarily include'' test. Accordingly, for administrative reasons, 
the Board discontinued publication of the list and restated the

[[Page 54]]

rule to cover all mutual funds except those at least 95 percent of whose 
assets are continuously invested in exempted securities.
    (c) The Board made these changes, effective July 8, 1969, in 
Regulation G (Code of Federal Regulations, title 12, part 207) by adding 
a new Sec. 207.2(d) (while eliminating former Sec. 207.2(c)(3) and 
Sec. 207.4(b)), and in Regulation U (Code of Federal Regulations, title 
12, part 221) by adding a new Sec. 221.3(v) (while eliminating former 
Sec. 221.3(b)(3) and Sec. 221.3(d)).
    (d) The Board has received several questions respecting the effect 
of the amendments on certain stock-secured credits that were extended 
prior to July 8, 1969, to purchase or carry mutual fund shares and were 
treated as not subject to Regulations G or U at the time of extension on 
the ground that the funds were not on the Board's published list.
    (e) The Board has held that whether a loan is for the purpose of 
purchasing or carrying a stock not registered on a national securities 
exchange depends on the present status of the stock. Thus, a credit is 
treated as one for such a purpose if used to purchase or carry a stock 
that became registered after the loan was made (1937 Federal Reserve 
Bulletin 955; Published Interpretations Par. 6435). The converse is also 
true (1938 Federal Reserve Bulletin 90; Published Interpretations Par. 
6445).
    (f) The same principle applies to the closely parallel question in 
the present case. Credits extended before July 8, 1969, to purchase or 
carry shares in the mutual funds in question were for the purpose of 
purchasing or carrying ``margin stocks'' (Regulation U) or ``margin 
securities'' (Regulation G) even though at the time of extension, the 
funds were not on the Board's published list. Accordingly, if 
collateralized as specified in the regulations, the credits were subject 
to the pertinent regulation from the effective date of the amendments, 
July 8, 1969.
    (g) In applying the above interpretation, it should be borne in mind 
that the Board's margin regulations are based on (1) the requirement of 
an initial deposit in connection with the original extension of a 
credit, and (2) limitations on substitutions or withdrawals of the 
collateral securing a credit.
    (h) In the latter category, the Board's margin regulations apply a 
retention requirement to proceeds of a sale of collateral in an 
undermargined loan (except for a same-day sale-and-purchase 
substitution) in order to strengthen the margin status of the loan 
(Sec. 207.1(j) of Regulation G and Sec. 221.1(b) of Regulation U). While 
this requirement became applicable on July 8, 1969, to credit previously 
extended to purchase shares in mutual funds that had not been on the 
Board's list prior to that date, the Board, in view of all the 
circumstances, will not insist upon reconstitution of loans to take 
account of withdrawals and substitutions of collateral before April 27, 
1970, the date of issuance of this interpretation, even though 
henceforth all withdrawals and substitutions must comply with the 
requirement.
    (i) Application of Sec. 221.3(q): Section 221.3(q) of Regulation U 
provides that credit extended by banks to a customer who is engaged 
``principally, or as one of the customer's important activities,'' in 
the business of extending credit to purchase or carry margin securities 
is considered to be extended for that purpose. Banks extending credit to 
such customers must treat the credit as subject to that regulation, and 
the credit must comply with all the requirements thereof ``unless the 
credit and its purposes are effectively and unmistakably separated and 
disassociated from any financing or refinancing, for the customer or 
others, of any purchasing or carrying of [margin] stocks.''
    (j) Since credit to purchase or carry mutual fund shares (no matter 
when extended) is credit to purchase or carry margin stocks, any person 
or organization that engages, as an important activity, in extending 
credit to purchase or carry such shares (with the exception mentioned) 
is a lender subject to Sec. 221.3(q) even though the funds were not on 
the Board's list prior to July 8, 1969. However, as stated above, as an 
administrative matter the retention requirements of the regulations need 
apply only to all substitutions and withdrawals, occurring on or after

[[Page 55]]

April 27, 1970, of collateral securing such credit.
    (k) In view of the likelihood that Sec. 221.3(q) applies to any loan 
to any financial institution which has pledged or offers to pledge 
mutual fund shares, particularly shares which were not on the Board's 
list prior to July 8, 1969, a bank should treat any such loan as being 
subject to the requirements of the regulation unless the borrower 
supplies clear proof, to be preserved in the files of the bank, that 
Sec. 221.3(q) does not apply or that the loan is ``separated and 
disassociated'' as specified in the section. In this connection, a 
general statement, such as that the credit is for ``working capital'' or 
``general corporate purposes'', is insufficient evidence that the 
requirements of the regulation are not applicable.

[35 FR 6959, May 1, 1970]



Sec. 221.120   Allocation of stock collateral to purpose and nonpurpose credits to same customer.

    (a) A bank proposes to extend two credits (Credits ``A'' and ``B'') 
to its customer. Although the two credits are proposed to be extended at 
the same time, each would be evidenced by a separate agreement. Credit A 
would be extended for the purpose of providing the customer with working 
capital (nonpurpose credit), collateralized by stock. Credit B would be 
extended for the purpose of purchasing or carrying margin stock (purpose 
credit), without collateral or on collateral other than stock.
    (b) Regulation U allows a bank to extend purpose and nonpurpose 
credits simultaneously or successively to the same customer. This rule 
is expressed in Sec. 221.3(n)(3) which provides in substance that for 
any nonpurpose credit to the same customer, the bank shall in good faith 
require as much collateral not already identified to the customer's 
purpose credit as the bank would require if it held neither the purpose 
loan nor the identified collateral. This rule also takes into account 
that the bank would not necessarily be required to hold collateral for 
the nonpurpose credit if, consistent with good faith banking practices, 
it would normally make this kind of nonpurpose loan without collateral.
    (c) The Board views Sec. 221.3(n)(3) of Regulation U, when read in 
conjunction with Sec. 221.3(n)(1), as requiring that whenever a bank 
extends two credits to the same customer, one a purpose credit and the 
other nonpurpose, any stock collateral must first be identified with and 
attributed to the purpose loan by taking into account the maximum loan 
value of such collateral as prescribed in Sec. 221.4 (the Supplement) of 
Regulation U.
    (d) The Board is further of the opinion that under the foregoing 
circumstances Credit B would be indirectly secured by stock, despite the 
fact that there would be separate loan agreements for both credits. This 
conclusion flows from the circumstance that the bank would hold in its 
possession stock collateral to which it would have access with respect 
to Credit B, despite any ostensible allocation of such collateral to 
Credit A.

[36 FR 25150, Dec. 29, 1971]



Sec. 221.121   Computation of time periods for acquiring and holding blocks of stock by block positioners.

    (a) The Board recently considered two questions in connection with 
Sec. 221.3 (z) (2) and (3) of Regulation U providing for bank credit to 
block positioners which is exempt from the normal margin requirements as 
prescribed from time to time in that regulation.
    (b) The first question pertained to the period of time in which a 
block positioner, in order to qualify for the exemption, must position a 
block of stock when such positioning results from several transactions 
at approximately the same time from a single source, as set forth in 
Sec. 221.3(z)(2)(ii).
    (c) The Board is of the view that the aggregate of several 
transactions from a single source would ordinarily be carried out within 
a timespan of one-half hour in order for such aggregate to be considered 
one block of stock eligible for exempt credit. In extraordinary 
circumstances, however, the block positioner could consult the Reserve 
Bank in whose district its office is situated as to whether stock 
positioned over a slightly longer period constitutes a single block. In 
such a case the block positioner should, of course, disclose all

[[Page 56]]

relevant circumstances to the Reserve Bank.
    (d) The second question related to the computation of the period of 
20 business days, specified in Sec. 221.3(z)(3), in which exempt credit 
may remain outstanding for positioning a block of stock.
    (e) The Board is of the view that the computation of such 20-day 
period shall commence on the business day following the date of trade.

[37 FR 24105, Nov. 14, 1972; 37 FR 26315, Dec. 9, 1972]



Sec. 221.122   Applicability of margin requirements to credit in connection with Insurance Premium Funding Programs.

    For text of this interpretation, see Sec. 207.108 of this 
subchapter.

(Interprets and applies 12 CFR 207.4(f) and 12 CFR 221.3(x))

[39 FR 9425, Mar. 11, 1974]



Sec. 221.123   Bona fide arbitrage transactions.

    For the text of this interpretation, see Sec. 220.126 of this 
subchapter.

(Interprets and applies 12 CFR 220.4(c), 220.4(d))

[38 FR 5237, Feb. 27, 1973; 40 FR 59322, Dec. 23, 1975]



Sec. 221.124  Application of the single-credit rule to loan participations.

    For text of this interpretation, see Sec. 207.113 of this chapter.

[Reg. U, 56 FR 46228, Sept. 11, 1991]



Sec. 221.125 Credit to brokers and dealers.
    For text of this interpretation, see Sec. 207.114 of this 
subchapter.

[Reg. U, 61 FR 60167, Nov. 26, 1996]



PART 224--BORROWERS OF SECURITIES CREDIT (REGULATION X)--Table of Contents




Sec.
224.1  Authority, purpose, and scope.
224.2  Definitions.
224.3  Margin regulations to be applied by nonexempted borrowers.

    Authority: Sec. 7(f), as amended (15 U.S.C. 78a-jj).

    Source: Reg. X, 48 FR 56572, Dec. 22, 1983, unless otherwise noted.

    Editorial Note: See the List of CFR Sections Affected in the Finding 
Aids section of this volume for FR citations to Part 224 OTC Margin 
Stocks changes.



Sec. 224.1  Authority, purpose, and scope.

    (a) Authority and purpose. Regulation X (this part) is issued by the 
Board of Governors of the Federal Reserve System (the Board) under the 
Securities Exchange Act of 1934, as amended (the Act) (15 U.S.C. 78a et 
seq.). This part implements section 7(f) of the Act (15 U.S.C. 78g(f)), 
the purpose of which is to require that credit obtained within or 
outside the United States complies with the limitations of the Board's 
Margin Regulations G, T, and U (12 CFR parts 207, 220, and 221, 
respectively).
    (b) Scope and exemptions. The Act and this part apply the Board's 
margin regulations to United States persons and foreign persons 
controlled by or acting on behalf of or in conjunction with United 
States persons (hereinafter borrowers), who obtain credit outside the 
United States to purchase or carry United States securities, or within 
the United States to purchase or carry any securities (both types of 
credit are hereinafter referred to as purpose credit). The following 
borrowers are exempt from the Act and this part:
    (1) Any borrower who obtains purpose credit within the United 
States, unless the borrower willfully causes the credit to be extended 
in contravention of Regulations G, T, or U.
    (2) Any borrower whose permanent residence is outside the United 
States and who does not obtain or have outstanding, during any calendar 
year, a total of more than $100,000 in purpose credit obtained outside 
the United States; and
    (3) Any borrower who is exempt by Order upon terms and conditions 
set by the Board.



Sec. 224.2  Definitions.

    The terms used in this part have the meanings given to them in 
sections 3(a) and 7(f) of the Act, and in Regulations G, T, and U. 
Section 7(f) of the Act contains the following definitions:
    (a) United States person includes a person which is organized or 
exists under the laws of any State or, in the case of

[[Page 57]]

a natural person, a citizen or resident of the United States; a domestic 
estate; or a trust in which one or more of the foregoing persons has a 
cumulative direct or indirect beneficial interest in excess of 50 per 
centum of the valve of the trust.
    (b) United States security means a security (other than an exempted 
security) issued by a person incorporated under the laws of any State, 
or whose principal place of business is within a State.
    (c) Foreign person controlled by a United States person includes any 
noncorporate entity in which United States persons directly or 
indirectly have more than a 50 per centum beneficial interest, and any 
corporation in which one or more United States persons, directly or 
indirectly, own stock possessing more than 50 per centum of the total 
combined voting power of all classes of stock entitled to vote, or more 
than 50 per centum of the total value of shares of all classes of stock.



Sec. 224.3  Margin regulations to be applied by nonexempted borrowers.

    (a) Credit transactions outside the United States. No borrower shall 
obtain purpose credit from outside the United States unless it conforms 
to the following margin regulations:
    (1) Regulation T (12 CFR part 220) if the credit is obtained from a 
foreign branch of a broker-dealer;
    (2) Regulation U (12 CFR part 221) if the credit is obtained from a 
foreign branch of a bank, except for the requirement of a purpose 
statement (12 CFR 221.3 (b) and (c)); and
    (3) Regulation G (12 CFR part 207) if the credit is obtained from 
any other lender outside the United States, except for the requirement 
of a purpose statement (12 CFR 207.3 (e) and (f)).
    (b) Credit transactions within the United States. Any borrower who 
willfully causes credit to be extended in contravention of Regulations 
G, T, or U, and who, therefore, is not exempted by Sec. 224.1(b)(1) of 
this part, must conform the credit to the margin regulation that applies 
to the lender.
    (c) Inadvertent noncompliance. No borrower who inadvertently 
violates this part and who acts to remedy the violation as soon as 
practicable shall be deemed in violation of this part.



PART 225--BANK HOLDING COMPANIES AND CHANGE IN BANK CONTROL (REGULATION Y)--Table of Contents




                               Regulations

                      Subpart A--General Provisions

Sec.
225.1  Authority, purpose, and scope.
225.2  Definitions.
225.3  Administration.
225.4  Corporate practices.
225.5  Registration, reports, and inspections.
225.6  Penalties for violations.
225.7  Tying restrictions.

           Subpart B--Acquisition of Bank Securities or Assets

225.11  Transactions requiring Board approval.
225.12  Transactions not requiring Board approval.
225.13  Factors considered in acting on bank applications.
225.14  Procedures for applications, notices, and hearings.
225.15  Notice procedure for one-bank holding company formations.

   Subpart C--Nonbanking Activities and Acquisitions by Bank Holding 
                                Companies

225.21  Prohibited nonbanking activities and acquisitions; exempt bank 
          holding companies.
225.22  Exempt nonbanking activities and acquisitions.
225.23  Procedures for notices to engage in nonbanking activities.
225.24  Factors considered in acting on nonbanking proposals.
225.25  List of permissible nonbanking activities.

             Subpart D--Control and Divestiture Proceedings

225.31  Control proceedings.
225.32  Divestiture proceedings.

                    Subpart E--Change in Bank Control

225.41  Transactions requiring prior notice.
225.42  Transactions not requiring prior notice.
225.43  Procedures for filing, processing, publishing, and acting on 
          notices.

[[Page 58]]

                 Subpart F--Limitations on Nonbank Banks

225.51  Seven percent growth limit for nonbank banks.
225.52  Limitation on overdrafts.
                          Subpart G--Appraisals

225.61  Authority, purpose, and scope.
225.62  Definitions.
225.63  Appraisals required; transactions requiring a State certified or 
          licensed appraiser.
225.64  Minimum appraisal standards.
225.65  Appraiser independence.
225.66  Professional association membership; competency.
225.67  Enforcement.
    Subpart H--Notice of Addition or Change of Directors and Senior 
                           Executive Officers

225.71  Definitions.
225.72  Director and officer appointments; prior notice requirement.
225.73  Procedures for filing, processing, and acting on notices; 
          standards for disapproval; waiver of notice.
                             Interpretations

225.101  Bank holding company's subsidiary banks owning shares of 
          nonbanking companies.
225.102  Bank holding company indirectly owning nonbanking company 
          through subsidiaries.
225.103  Bank holding company acquiring stock by dividends, stock splits 
          or exercise of rights.
225.104  ``Services'' under section 4(c)(1) of Bank Holding Company Act.
225.107  Acquisition of stock in small business investment company.
225.109  ``Services'' under section 4(c)(1) of Bank Holding Company Act.
225.111  Limit on investment by bank holding company system in stock of 
          small business investment companies.
225.112  Indirect control of small business concern through convertible 
          debentures held by small business investment company.
225.113  Services under section 4(a) of Bank Holding Company Act.
225.115  Applicability of Bank Service Corporation Act in certain bank 
          holding company situations.
225.118  Computer services for customers of subsidiary banks.
225.121  Acquisition of Edge corporation affiliate by State member banks 
          of registered bank holding company.
225.122  Bank holding company ownership of mortgage companies.
225.123  Activities closely related to banking.
225.124  Foreign bank holding companies.
225.125  Investment adviser activities.
225.126  Activities not closely related to banking.
225.127  Investment in corporations or projects designed primarily to 
          promote community welfare.
225.129  Activities closely related to banking.
225.130  Issuance and sale of short-term debt obligations by bank 
          holding companies.
225.131  Activities closely related to banking.
225.132  Acquisition of assets.
225.133  Computation of amount invested in foreign corporations under 
          general consent procedures.
225.134  Escrow arrangements involving bank stock resulting in a 
          violation of the Bank Holding Company Act.
225.136  Utilization of foreign subsidiaries to sell long-term debt 
          obligations in foreign markets and to transfer the proceeds to 
          their United States parent(s) for domestic purposes.
225.137  Acquisitions of shares pursuant to section 4(c)(6) of the Bank 
          Holding Company Act.
225.138  Statement of policy concerning divestitures by bank holding 
          companies.
225.139  Presumption of continued control under section (2)(g)(3) of the 
          Bank Holding Company Act.
225.140  Disposition of property acquired by satisfaction of debts 
          previously contracted.
225.141  Operations subsidiaries of a bank holding company.
225.142  Statement of policy concerning bank holding companies engaging 
          in futures, forward and options contracts on U.S. Government 
          and agency securities and money market instruments.
225.143  Policy statement on nonvoting equity investments by bank 
          holding companies.
225.145  Limitations established by the Competitive Equality Banking Act 
          of 1987 on the activities and growth of nonbank banks.

Appendix A to Part 225--Capital Adequacy Guidelines for Bank Holding 
          Companies: Risk-Based Measure
Appendix B to Part 225--Capital Adequacy Guidelines for Bank Holding 
          Companies and State Member Banks: Leverage Measure
Appendix C to Part 225--Policy Statement for Formation of Small One-Bank 
          Holding Companies
Appendix D to Part 225--Capital Adequacy Guidelines for Bank Holding 
          Companies: Tier 1 Leverage Measure
Appendix E to Part 225--Capital Adequacy Guidelines for State Member 
          Banks; Market Risk Measure

    Authority: 12 U.S.C. 1817(j)(13), 1818, 1831i, 

[[Page 59]]

1831p-1, 1843(c)(8), 1844(b), 1972(l), 3106, 3108, 3310, 3331-3351, 
3907, and 3909.
    Source: Reg. Y, 49 FR 818, Jan. 5, 1984, unless otherwise noted.
                               Regulations


                      Subpart A--General Provisions



Sec. 225.1  Authority, purpose, and scope.
    (a) Authority. This part (Regulation Y) is issued by the Board of 
Governors of the Federal Reserve System (Board) under section 5(b) of 
the Bank Holding Company Act of 1956, as amended (12 U.S.C. 1844(b)) 
(BHC Act); sections 8 and 13(a) of the International Banking Act of 1978 
(12 U.S.C. 3106 and 3108); section 7(j)(13) of the Federal Deposit 
Insurance Act, as amended by the Change in Bank Control Act of 1978 (12 
U.S.C. 1817(j)(13) (Bank Control Act); section 8(b) of the Federal 
Deposit Insurance Act (12 U.S.C. 1818(b)); and the International Lending 
Supervision Act of 1983 (Pub. L. 98-181, title IX). The BHC codified at 
12 U.S.C. 1841, et seq.
    (b) Purpose. The principal purposes of this part are to regulate the 
acquisition of control of banks by companies and individuals, to define 
and regulate the nonbanking activities in which bank holding companies 
and foreign banking organizations with United States operations may 
engage, and to set forth the procedures for securing approval for such 
transactions and activities.
    (c) Scope. (1) Subpart A contains general provisions and definitions 
of terms used in this regulation.
    (2) Subpart B governs acquisitions of bank or bank holding company 
securities and assets by bank holding companies or by any company that 
will become a bank holding company as a result of the acquisition.
    (3) Subpart C defines and regulates the nonbanking activities in 
which bank holding companies and foreign banking organizations may 
engage directly or through a subsidiary. In addition, certain nonbanking 
activities conducted by foreign banking organizations and certain 
foreign activities conducted by bank holding companies are governed by 
the Board's Regulation K (12 CFR part 211, International Banking 
Operations).
    (4) Subpart D specifies situations in which a company is presumed to 
control voting securities or to have the power to exercise a controlling 
influence over the management or policies of a bank or other company, 
sets forth the procedures for making a control determination, and 
provides rules governing the effectiveness of divestitures by bank 
holding companies.
    (5) Subpart E governs changes in bank control resulting from the 
acquisition by individuals or companies (other than bank holding 
companies) of voting securities of a bank holding company or state 
member bank of the Federal Reserve System.
    (6) Appendix A to the regulation contains the Board's Capital 
Adequacy Guidelines for bank holding companies and for state member 
banks.
    (7) Appendix B to the regulation contains the Board's Policy 
Statement for Formation of Small One-Bank Holding Companies.



Sec. 225.2  Definitions.
    Except as modified in this section or unless the context otherwise 
requires, the terms used in this regulation have the same meanings as 
set forth in the relevant statutes.
    (a) Affiliate means any company that controls, is controlled by, or 
is under common control with, a bank or nonbank bank.
    (b)(1) Bank means:
    (i) An insured bank as defined in section 3(h) of the Federal 
Deposit Insurance Act (12 U.S.C. 1813(h)); or
    (ii) An institution organized under the law of the United States 
which both:
    (A) Accepts demand deposits or deposits that the depositor may 
withdraw by check or similar means for payment to third parties or 
others; and
    (B) Is engaged in the business of making commercial loans.
    (2) Bank does not include those institutions qualifying under the 
exceptions listed in section 2(c)(2) of the BHC Act (12 U.S.C. 
1841(c)(2)).
    (c)(1) Bank holding company means any company (including a bank) 
that has direct or indirect control of a bank, other than control that 
results from the ownership or control of:
    (i) Voting securities held in good faith in a fiduciary capacity 
(other than as provided in paragraphs (d)(2)(ii)

[[Page 60]]

and (iii) of this section) without sole discretionary voting authority, 
or as otherwise exempted under section 2(a)(5)(A) of the BHC Act;
    (ii) Voting securities acquired and held only for a reasonable 
period of time in connection with the underwriting of securities, as 
provided in section 2(a)(5)(B) of the BHC Act;
    (iii) Voting rights to voting securities acquired for the sole 
purpose and in the course of participating in a proxy solicitation, as 
provided in section 2(a)(5)(C) of the BHC Act:
    (iv) Voting securities acquired in satisfaction of debts previously 
contracted in good faith, as provided in section 2(a)(5)(D) of the BHC 
Act, if the securities are divested within two years of acquisition (or 
such later period as the Board may permit by order); or
    (v) Voting securities of certain institutions owned by a thrift 
institution or a trust company, as provided in sections 2(a)(5)(E) and 
(F) of the BHC Act.
    (2) Except for the purposes of Sec. 225.4(b) of this subpart and 
subpart E of this regulation or as otherwise provided in this 
regulation, the term bank holding company includes a foreign banking 
organization. For the purposes of subpart B, the term bank holding 
company includes a foreign banking organization only if it owns or 
controls a bank in the United States.
    (d)(1) Company includes any bank, corporation, general or limited 
partnership, association or similar organization, business trust, or any 
other trust unless by its terms it must terminate either within 25 
years, or within 21 years and 10 months after the death of individuals 
living on the effective date of the trust.
    (2) Company does not include any organization, the majority of the 
voting securities of which are owned by the United States or any state.
    (e)(1) Control of a bank or other company means (except for the 
purposes of subpart E):
    (i) Ownership, control, or power to vote 25 percent or more of the 
outstanding shares of any class of voting securities of the bank or 
other company, directly or indirectly or acting through one or more 
other persons;
    (ii) Control in any manner over the election of a majority of the 
directors, trustees, or general partners (or individuals exercising 
similar functions) of the bank or other company;
    (iii) The power to exercise, directly or indirectly, a controlling 
influence over the management or policies of the bank or other company, 
as determined by the Board after notice and opportunity for hearing in 
accordance with Sec. 225.31 of subpart D of this regulation; or
    (iv) Conditioning in any manner the transfer of 25 percent or more 
of the outstanding shares of any class of voting securities of a bank or 
other company upon the transfer of 25 percent or more of the outstanding 
shares of any class of voting securities of another bank or other 
company.
    (2) A bank or other company is deemed to control voting securities 
or assets owned, controlled, or held, directly or indirectly:
    (i) By any subsidiary of the bank or other company;
    (ii) In a fiduciary capacity (including by pension and profit-
sharing trusts) for the benefit of the shareholders, members, or 
employees (or individuals serving in similar capacities) of the bank or 
other company or of any of its subsidiaries; or
    (iii) In a fiduciary capacity for the benefit of the bank or other 
company or any of its subsidiaries.
    (f) Foreign banking organization and qualifying foreign banking 
organization shall have the same meanings as provided in Sec. 211.23 of 
the Board's Regulation K (12 CFR 211.23).
    (g) Institutional customer means:
    (1) A bank (acting in an individual or fiduciary capacity); a 
savings and loan association; an insurance company; an investment 
company registered under the Investment Company Act of 1940; or a 
corporation, partnership, proprietorship, organization, or institutional 
entity, with net worth exceeding $1,000,000;
    (2) An employee benefit plan with assets exceeding $1,000,000, or 
whose investment decisions are made by a bank, insurance company, or 
investment advisor registered under the Investment Advisors Act of 1940;

[[Page 61]]

    (3) A natural person whose individual net worth (or joint net worth 
with a spouse) at the time of receipt of the brokerage, advisory, or 
other relevant service exceeds $1,000,000;
    (4) A broker-dealer or option trader registered under the Securities 
Exchange Act of 1934, or other securities, investment or banking 
professional; or
    (5) An entity all of the equity owners of which are institutional 
customers.
    (h) Management official means any officer, director (including 
honorary or advisory directors), partner, or trustee of a bank or other 
company, or any employee of the bank or other company with policy-making 
functions.
    (i) Nonbank bank means any institution that:
    (1) Became a bank as a result of enactment of the Competitive 
Equality Amendments of 1987 (Pub. L. No. 100-86), on the date of such 
enactment (August 10, 1987); and
    (2) Was not controlled by a bank holding company on the day before 
the enactment of the Competitive Equality Amendments of 1987 (August 9, 
1987).
    (j) Outstanding shares means any voting securities, but does not 
include securities owned by the United States or by a company wholly-
owned by the United States.
    (k) Person includes an individual, bank, corporation, partnership, 
trust, association, joint venture, pool, syndicate, sole proprietorship, 
unincorporated organization, or any other form of entity.
    (l)(1) Controlling shareholder means a person that owns or controls, 
directly or indirectly, 25 percent or more of any class of voting 
securities of a bank or other company.
    (2) Principal shareholder means a person that owns or controls, 
directly or indirectly, 10 percent or more of any class of voting 
securities of a bank or other company, or any person that the Board 
determines has the power, directly or indirectly, to exercise a 
controlling influence over the management or policies of a bank or other 
company.
    (m) Savings association means:
    (1) Any Federal savings association or Federal savings bank;
    (2) Any building and loan association, savings and loan association, 
homestead association, or cooperative bank if such association or 
cooperative bank is a member of the Savings Association Insurance Fund; 
and
    (3) Any savings bank or cooperative which is deemed by the Director 
of the Office of Thrift Supervision to be a savings association under 
section 10(1) of the Home Owners Loan Act.
    (n) Subsidiary means a bank or other company that is controlled by 
another company, and refers to a direct or indirect subsidiary of a bank 
holding company. An indirect subsidiary is a bank or other company that 
is controlled by a subsidiary of the bank holding company.
    (o) United States means the United States and includes any State of 
the United States, the District of Columbia, any territory of the United 
States, Puerto Rico, Guam, American Samoa, and the Virgin Islands.
    (p) (1) Voting securities means shares of common or preferred stock, 
general or limited partnership shares or interests, or similar interests 
if the shares or interest, by statue, charter, or in any manner, entitle 
the holder: (i) to vote for or to select directors, trustees, or 
partners (or persons exercising similar functions of the issuing 
company); or (ii) to vote on or to direct the conduct of the operations 
or other significant policies of the issuing company.
    (2) Preferred shares, limited partnership shares or interests, or 
similar interests are not voting securities if:
    (i) Any voting rights associated with the shares or interest are 
limited solely to the type customarily provided by statute with regard 
to matters that would significantly and adversely affect the rights or 
preference of the security or other interest, such as the issuance of 
additional amounts or classes of senior securities, the modification of 
the terms of the security or interest, the dissolution of the issuing 
company, or the payment of dividends by the issuing company when 
preferred dividends are in arrears;
    (ii) The shares or interest represent an essentially passive 
investment or financing device and do not otherwise provide the holder 
with control over the issuing company; and
    (iii) The shares or interest do not entitle the holder, by statute, 
charter, or

[[Page 62]]

in any manner, to select or to vote for the selection of directors, 
trustees, or partners (or persons exercising similar functions) of the 
issuing company.
    (q) Well-capitalized--(1) Bank holding company. In the case of a 
bank holding company, well-capitalized means that:
    (i) On a consolidated basis, the bank holding company maintains a 
total risk-based capital ratio of 10.0 percent or greater, as defined in 
Appendix A of this part;
    (ii) On a consolidated basis, the bank holding company maintains a 
Tier 1 risk-based capital ratio of 6.0 percent or greater, as defined in 
Appendix A of this part;
    (iii) On a consolidated basis, the bank holding company maintains 
either:
    (A) A Tier 1 leverage ratio of 4.0 percent or greater; or
    (B) If the bank holding company has a composite 1 rating under the 
BOPEC (or comparable) rating system or has implemented the risk-based 
capital measure for market risk, a Tier 1 leverage ratio of 3.0 percent 
or greater; and
    (iv) The bank holding company is not subject to any written 
agreement, order, capital directive, or prompt corrective action 
directive issued by the Board to meet and maintain a specific capital 
level for any capital measure.
    (2) Insured depository institution. In the case of an insured 
depository institution, well-capitalized means that the institution 
maintains at least the capital levels required to be well-capitalized 
under the capital adequacy regulations or guidelines applicable to the 
institution that have been adopted by the appropriate federal banking 
agency for the institution under section 38 of the Federal Deposit 
Insurance Act.

[Reg. Y, 49 FR 818, Jan. 5, 1984. Redesignated and amended at 53 FR 
37744, Sept. 28, 1988; 54 FR 37302, Sept. 8, 1989; 57 FR 41387, Sept. 
10, 1992; 58 FR 4074, Jan. 13, 1993; 61 FR 56407, Nov. 1, 1996]



Sec. 225.3  Administration.

    (a) Delegation of authority. Designated Board members and officers 
and the Federal Reserve Banks are authorized by the Board to exercise 
various functions prescribed in this regulation and in the Board's Rules 
Regarding Delegation of Authority (12 CFR part 265) and the Board's 
Rules of Procedure (12 CFR part 262).
    (b) Appropriate Federal Reserve Bank. In administering this 
regulation, the appropriate Federal Reserve Bank is as follows:
    (1) For a bank holding company (or a company applying to become a 
bank holding company): the Reserve Bank of the Federal Reserve district 
in which the company's banking operations are principally conducted, as 
measured by total domestic deposits in its subsidiary banks on the date 
it became (or will become) a bank holding company;
    (2) For a foreign banking organization that has no subsidiary bank 
and is not subject to paragraph (b)(1) of this section: the Reserve Bank 
of the Federal Reserve district in which the total assets of the 
organization's United States branches, agencies, and commercial lending 
companies are the largest as of the later of January 1, 1980, or the 
date it becomes a foreign banking organization;
    (3) For an individual or company submitting a notice under subpart E 
of this regulation: the Reserve Bank of the Federal Reserve district in 
which the banking operations of the bank holding company or State member 
bank to be acquired are principally conducted, as measured by total 
domestic deposits on the date the notice is filed.



Sec. 225.4  Corporate practices.

    (a) Bank holding company policy and operations. (1) A bank holding 
company shall serve as a source of financial and managerial strength to 
its subsidiary banks and shall not conduct its operations in an unsafe 
or unsound manner.
    (2) Whenever the Board believes an activity of a bank holding 
company or control of a nonbank subsidiary (other than a nonbank 
subsidiary of a bank) constitutes a serious risk to the financial 
safety, soundness, or stability of a subsidiary bank of the bank holding 
company and is inconsistent with sound banking principles or the 
purposes of the BHC Act or the Financial Institutions Supervisory Act of 
1966, as amended (12 U.S.C. 1818(b) et seq.), the Board may require the 
bank holding company to terminate the activity or to terminate control 
of the subsidiary,

[[Page 63]]

as provided in section 5(e) of the BHC Act.
    (b) Purchase or redemption by a bank holding company of its own 
securities--(1) Filing notice. Except as provided in paragraph (b)(6) of 
this section, a bank holding company shall give the Board prior written 
notice before purchasing or redeeming its equity securities if the gross 
consideration for the purchase or redemption, when aggregated with the 
net consideration paid by the company for all such purchases or 
redemptions during the preceding 12 months, is equal to 10 percent or 
more of the company's consolidated net worth. For the purposes of this 
section, ``net consideration'' is the gross consideration paid by the 
company for all of its equity securities purchased or redeemed during 
the period minus the gross consideration received for all of its equity 
securities sold during the period other than as part of a new issue.
    (2) Content of notice. Any notice under this section shall be filed 
with the appropriate Reserve Bank and shall contain the following 
information:
    (i) The purpose of the transaction, a description of the securities 
to be purchased or redeemed, the total number of each class outstanding, 
the gross consideration to be paid, and the terms of any debt incurred 
in connection with the transaction;
    (ii) A description of all equity securities redeemed within the 
preceding 12 months, the net consideration paid, and the terms of any 
debt incurred in connection with those transactions; and
    (iii) A current and pro forma consolidated balance sheet if the bank 
holding company has total assets of over $150 million, or a current and 
pro forma parent company only balance sheet if the bank holding company 
has total assets of $150 million or less.
    (3) Acting on notice. Within 30 calendar days of receipt of a notice 
under this section, the appropriate Reserve Bank shall either approve 
the transaction proposed in the notice or refer the notice to the Board 
for decision. If the notice is referred to the Board for decision, the 
Board shall act on the notice within 60 calendar days after the Reserve 
Bank receives the notice.
    (4) Factors considered in acting on notice. The Board may disapprove 
a proposed purchase or redemption if it finds that the proposal would 
constitute an unsafe or unsound practice, or would violate any law, 
regulation, Board order, directive, or any condition imposed by, or 
written agreement with, the Board. In determining whether a proposal 
constitutes an unsafe or unsound practice, the Board will consider 
whether the bank holding company's financial condition, after giving 
effect to the proposed purchase or redemption, meets the financial 
standards applied by the Board under section 3 of the BHC Act, including 
the Board's Capital Adequacy Guidelines (appendix A to subparts A 
through E) and the Board's Policy Statement for Formation of Small One-
Bank Holding Companies (appendix B to subparts A through E).
    (5) Disapproval and hearing. The Board shall notify the bank holding 
company in writing of the reasons for a decision to disapprove any 
proposed purchase or redemption. Within 10 calendar days of receipt of a 
notice of disapproval by the Board, the bank holding company may submit 
a written request for a hearing. The Board will order a hearing within 
10 calendar days of receipt of that request if it finds that material 
facts are in dispute or if it otherwise appears appropriate. Any hearing 
conducted under this paragraph shall be held in accordance with the 
Board's Rules of Practice for Formal Hearings (12 CFR part 263). At the 
conclusion of the hearing, the Board shall by order approve or 
disapprove the proposed purchase or redemption on the basis of the 
record of the hearing.
    (6) Exception for well-capitalized bank holding companies. A bank 
holding company seeking to redeem or purchase its equity securities is 
not required to obtain prior Board approval for the redemption or 
purchase under this section provided:
    (i) The total and tier 1 risk-based capital ratios and the leverage 
capital ratio for the bank holding company, both before and following 
the redemption, exceed the thresholds established for ``well-
capitalized'' state-member banks under 12 CFR 208.33(b)(1) as if the

[[Page 64]]

bank holding company (on a consolidated basis) were deemed to be a state 
member bank;
    (ii) The bank holding company received a composite ``1'' or ``2'' 
rating at its most recent BOPEC inspection; and
    (iii) The bank holding company is not the subject of any unresolved 
supervisory issues.
    (c) Deposit insurance. Every bank that is a bank holding company or 
a subsidiary of a bank holding company shall obtain Federal Deposit 
Insurance and shall remain an insured bank as defined in section 3(h) of 
the Federal Deposit Insurance Act (12 U.S.C. 1813(h)).
    (d) Acting as transfer agent, municipal securities dealer, or 
clearing agent. A bank holding company or any nonbanking subsidiary that 
is a ``bank,'' as defined in section 3(a)(6) of the Securities Exchange 
Act of 1934 (15 U.S.C. 78c(a)(6)), and that is a transfer agent of 
securities, a municipal securities dealer, a clearing agency, or a 
participant in a clearing agency (as those terms are defined in section 
3(a) of the Securities Exchange Act, (12 U.S.C. 78c(a)), shall be 
subject to Secs. 208.8(f)-(j) of the Board's Regulation H (12 CFR 
208.8(f)-(j)) as if it were a state member bank.
    (e) Reporting requirement for credit secured by certain bank holding 
company stock. Each executive officer or director of a bank holding 
company the shares of which are not publicly traded shall report 
annually to the board of directors of the bank holding company the 
outstanding amount of any credit that was extended to the executive 
officer or director and that is secured by shares of the bank holding 
company. For purposes of this paragraph, the terms ``executive officer'' 
and ``director'' shall have the meaning given in Sec. 215.2 of 
Regulation O, 12 CFR 215.2.
    (f) Suspicious activity report. A bank holding company or any 
nonbank subsidiary thereof, or a foreign bank that is subject to the BHC 
Act or any nonbank subsidiary of such foreign bank operating in the 
United States, shall file a suspicious activity report in accordance 
with the provisions of Sec.  208.20 of the Board's Regulation H, 12 CFR 
208.20.

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended by 55 FR 47743, Nov. 15, 
1990; 57 FR 22426, May 28, 1992; 58 FR 47209, Sept. 8, 1993; 59 FR 
22968, May 4, 1994; 59 FR 39679, Aug. 4, 1994; 61 FR 4344, Feb. 5, 1996]



Sec. 225.5  Registration, reports, and inspections.

    (a) Registration of bank holding companies. Each company shall 
register within 180 days after becoming a bank holding company by 
furnishing information in the manner and form prescribed by the Board. A 
company that receives the Board's prior approval under subpart B of this 
regulation to become a bank holding company may complete this 
registration requirement through submission of its first annual report 
to the Board as required by paragraph (b) of this section.
    (b) Reports of bank holding companies. Each bank holding company 
shall furnish, in the manner and form prescribed by the Board, an annual 
report of the company's operations for the fiscal year in which it 
becomes a bank holding company, and for each fiscal year during which it 
remains a bank holding company. Additional information and reports shall 
be furnished as the Board may require.
    (c) Examinations and inspections. The Board may examine or inspect 
any bank holding company and each of its subsidiaries and prepare a 
report of their operations and activities. With respect to a foreign 
banking organization, the Board may also examine any branch or agency of 
a foreign bank in any state of the United States and may examine or 
inspect each of the organization's subsidiaries in the United States and 
prepare reports of their operations and activities. The Board will rely 
as far as possible on the reports of examination made by the primary 
federal or state supervisor of the subsidiary bank of a bank holding 
company or of the branch or agency of the foreign bank.



Sec. 225.6  Penalties for violations.

    (a) Criminal and civil penalties. Section 8 of the BHC Act provides 
criminal penalties for willful violation, and civil

[[Page 65]]

penalties for violation, by any company or individual of the BHC Act or 
any regulation or order issued under it, or for making a false entry in 
any book, report, or statement of a bank holding company. Civil money 
penalty assessments for violations of the BHC Act shall be made in 
accordance with subpart C of the Board's Rules of Practice for Hearings 
(12 CFR part 263, subpart C). For any willful violation of the Bank 
Control Act or any regulation or order issued under it, the Board may 
assess a civil penalty as provided in 12 U.S.C. 1817(j)(15).
    (b) Cease and desist proceedings. For any violation of the BHC Act, 
the Bank Control Act, this regulation, or any order or notice issued 
thereunder, the Board may institute a cease and desist proceeding in 
accordance with the Financial Institutions Supervisory Act of 1966, as 
amended (12 U.S.C. 1818(b) et seq.).

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended at 56 FR 38052, Aug. 9, 
1991]



Sec. 225.7  Tying restrictions.

    (a) Applicability to nonbanks. A bank holding company and any 
nonbanking subsidiary conducting an activity authorized under 
Sec. 225.23 may not in any manner extend credit, lease or sell property 
of any kind, provide any service, or fix or vary the consideration for 
any of these transactions subject to any condition or requirement that, 
if imposed by a bank, would constitute an unlawful tie-in arrangement 
under section 106 of the Bank Holding Company Act Amendments of 1970 (12 
U.S.C. 1971, 1972(1)).
    (b) Exceptions. Subject to the limitations of paragraph (c) of this 
section, the Board has adopted the following exceptions to the anti-
tying restrictions of section 106 of the Bank Holding Company Act 
Amendments of 1970 and paragraph (a) of this section.
    (1) Traditional bank products. A bank holding company or any bank or 
nonbank subsidiary thereof may vary the consideration charged for a 
traditional bank product on the condition or requirement that a customer 
also obtain a traditional bank product from an affiliate.
    (2) Securities brokerage services. A bank holding company or any 
bank or nonbank subsidiary thereof may vary the consideration charged 
for securities brokerage services on the condition or requirement that a 
customer also obtain a traditional bank product from that bank holding 
company or bank or nonbank subsidiary, or from any affiliate of such 
company or subsidiary.
    (3) Discounts on tie-in arrangements not involving banks. A bank 
holding company or any nonbank subsidiary thereof may vary the 
consideration for any extension of credit, lease or sale of property of 
any kind, or service, on the condition or requirement that the customer 
obtain some additional credit, property, or service from itself or a 
nonbank affiliate.
    (4) Safe harbor for combined-balance discounts. A bank holding 
company or any bank or nonbank subsidiary thereof may vary the 
consideration for any product or package of products based on a 
customer's maintaining a combined minimum balance in certain products 
specified by the company varying the consideration (eligible products), 
if:
    (i) That company (if it is a bank) or a bank affiliate of that 
company (if it is not a bank ) offers deposits, and all such deposits 
are eligible products; and
    (ii) Balances in deposits count at least as much as non-deposit 
products toward the minimum balance.
    (c) Limitations on exceptions. (1) The exceptions of this section 
shall apply only if all products involved in the tying arrangement are 
separately available for purchase.
    (2) Any exception granted pursuant to this section shall terminate 
upon a finding by the Board that the arrangement is resulting in anti-
competitive practices. The eligibility of a bank holding company or bank 
or nonbank subsidiary thereof to operate under any exception granted 
pursuant to this section shall terminate upon a finding by the Board 
that its exercise of this authority is resulting in anti-competitive 
practices.
    (d) Definitions. For purposes of this section:
    (1) Traditional bank product means a loan, discount, deposit, or 
trust service.

[[Page 66]]

    (2) Affiliate has the meaning given such term in section 2(k) of the 
Bank Holding Company Act (12 U.S.C. 1841(k)).
    (3) Securities brokerage services means those activities authorized 
by the Board pursuant to Sec. 225.25(b)(15).

[Reg. Y, 59 FR 39679, Aug. 4, 1994, as amended at 59 FR 65474, Dec. 20, 
1994; 60 FR 20189, Apr. 25, 1995]



           Subpart B--Acquisition of Bank Securities or Assets



Sec. 225.11  Transactions requiring Board approval.

    The following transactions require an application for the Board's 
prior approval under section 3 of the Bank Holding Company Act except as 
exempted under Sec. 225.12 or as otherwise covered by Sec. 225.15 of 
this part:
    (a) Formation of bank holding company. Any action that causes a bank 
or other company to become a bank holding company.
    (b) Acquisition of subsidiary bank. Any action that causes a bank to 
become a subsidiary of a bank holding company.
    (c) Acquisition of control of bank or bank holding company 
securities. The acquisition by a bank holding company of direct or 
indirect ownership or control of any voting securities of a bank or bank 
holding company, if the acquisition results in the company's control of 
more than 5 percent of the outstanding shares of any class of voting 
securities of the bank or bank holding company. An acquisition includes 
the purchase of additional securities through the exercise of preemptive 
rights, but does not include securities received in a stock dividend or 
stock split that does not alter the bank holding company's proportional 
share of any class of voting securities.
    (d) Acquisition of bank assets. The acquisition by a bank holding 
company or by a subsidiary thereof (other than a bank) of all or 
substantially all of the assets of a bank.
    (e) Merger of bank holding companies. The merger or consolidation of 
bank holding companies, including a merger through the purchase of 
assets and assumption of liabilities.
    (f) Transactions by foreign banking organization. Any transaction 
described in paragraphs (a) through (e) of this section by a foreign 
banking organization (as defined in 12 CFR 211.21(n)) that involves the 
acquisition of an interest in a U.S. bank or in a bank holding company 
for which application would be required if the foreign banking 
organization were a bank holding company.

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended at 57 FR 13001, Apr. 15, 
1992; 58 FR 6362, Jan. 28, 1993; 59 FR 54808, Nov. 2, 1994]



Sec. 225.12  Transactions not requiring Board approval.

    The following transactions do not require the Board's approval under 
Sec. 225.11 of this Subpart:
    (a) Acquisition of securities in fiduciary capacity. The acquisition 
by a bank or other company (other than a trust that is a company) of 
control of voting securities of a bank or bank holding company in good 
faith in a fiduciary capacity, unless:
    (1) The acquiring bank or other company has sole discretionary 
authority to vote the securities and retains the authority for more than 
two years; or
    (2) The acquisition is for the benefit of the acquiring bank or 
other company, or its shareholders, employees, or subsidiaries.
    (b) Acquisition of securities in satisfaction of debts previously 
contracted. The acquisition by a bank or other company of control of 
voting securities of a bank or bank holding company in the regular 
course of securing or collecting a debt previously contracted in good 
faith, if the acquiring bank or other company divests the securities 
within two years of acquisition. The Board or Reserve Bank may grant 
requests for up to three one-year extensions.
    (c) Acquisition of securities by a bank holding company with 
majority control. The acquisition by a bank holding company of 
additional voting securities of a bank or bank holding company if more 
than 50 percent of the outstanding voting securities of the bank or bank 
holding company is lawfully controlled by the acquiring bank holding 
company prior to the acquisition.
    (d)(1) Transactions subject to Bank Merger Act. The merger or 
consolidation of a subsidiary bank of a bank holding company with 
another bank, or

[[Page 67]]

the purchase of assets by such a subsidiary bank, or a similar 
transaction involving subsidiary banks of a bank holding company, if the 
transaction requires the prior approval of a Federal supervisory agency 
under the Bank Merger Act (12 U.S.C. 1828(c)). This exception does not 
include:
    (i) The merger of a nonsubsidiary bank and a nonoperating subsidiary 
bank formed by a company for the purpose of acquiring the nonsubsidiary 
bank; and
    (ii) Any transaction requiring the Board's prior approval under 
Sec. 225.11(e) of this Subpart. The Board may require an application 
under this subpart if it determines that the merger or consolidation 
would have a significant adverse impact on the financial condition of 
the bank holding company or otherwise requires approval under section 3 
of the BHC Act.
    (2) Certain acquisitions subject to the Bank Merger Act. The 
acquisition by a bank holding company of shares of a bank or company 
controlling a bank as part of the merger or consolidation of the bank 
with a subsidiary bank (other than a nonoperating subsidiary bank) of 
the acquiring bank holding company, or the purchase of substantially all 
of the assets of the bank by a subsidiary bank (other than a 
nonoperating subsidiary bank) of the acquiring bank holding company, 
if--
    (i) The bank merger, consolidation, or asset purchase occurs 
simultaneously with the acquisition of the shares of the bank or bank 
holding company, and the bank is not operated by the acquiring bank 
holding company as a separate entity other than as the survivor of the 
merger, consolidation or asset purchase;
    (ii) The transaction requires the prior approval of a Federal 
supervisory agency under the Bank Merger Act (12 U.S.C. 1828(c));
    (iii) The transaction does not involve the acquisition of any 
nonbank company that would require prior approval under section 4 of the 
Bank Holding Company Act (12 U.S.C. 1843);
    (iv) Both before and after the transaction, the acquiring bank 
holding company meets the Board's Capital Adequacy Guidelines 
(appendices A and B); and
    (v) The acquiring bank holding company has provided written notice 
of the transaction to the Reserve Bank at least 30 days prior to the 
transaction, and during that period, the Reserve Bank has not informed 
the bank holding company that an application under Sec.  225.11 is 
required.
    (e) Holding securities in escrow. The holding of any voting 
securities of a bank or bank holding company in an escrow arrangement 
for the benefit of an applicant pending the Board's action on an 
application for approval of the proposed acquisition, if title to the 
securities and the voting rights remain with the seller and payment for 
the securities has not been made to the seller.
    (f) Acquisition of foreign banking organization. The acquisition of 
a foreign banking organization (as defined in 12 CFR 211.21(n)) where 
the foreign banking organization does not directly or indirectly own or 
control a bank in the United States, unless the acquisition is also by a 
foreign banking organization and otherwise subject to Sec.  225.11(f) of 
this subpart.

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended at 57 FR 13001, Apr. 15, 
1992; 57 FR 28778, June 29, 1992; 58 FR 6362, Jan. 28, 1993]



Sec. 225.13  Factors considered in acting on bank applications.

    (a) Prohibited anticompetitive transactions. As specified in section 
3(c) of the BHC Act, the Board may not approve any application under 
this subpart if:
    (1) The transaction would result in a monopoly or would further any 
combination or conspiracy to monopolize, or to attempt to monopolize, 
the business of banking in any part of the United States;
    (2) The effect of the transaction may be substantially to lessen 
competition in any section of the country, tend to create a monopoly, or 
in any other manner be in restraint of trade, unless the Board finds 
that the transaction's anticompetitive effects are clearly outweighed by 
its probable effect in meeting the convenience and needs of the 
community;
    (3) The applicant has failed to provide the Board with adequate 
assurances that it will make available such

[[Page 68]]

information on its operations or activities, and the operations or 
activities of any affiliate of the applicant, that the Board deems 
appropriate to determine and enforce compliance with the BHC Act and 
other applicable federal banking statutes, and any regulations 
thereunder; or
    (4) In the case of an application involving a foreign bank, the 
foreign bank is not subject to comprehensive supervision or regulation 
on a consolidated basis by the appropriate authorities in its home 
country, as provided in Sec. 211.24(c)(1)(ii) of the Board's Regulation 
K (12 CFR 211.24(c)(1)(ii)).
    (b) Other factors. In deciding applications under this subpart, the 
Board also considers the following factors with respect to the 
applicant, its subsidiaries, any banks related to the applicant through 
common ownership or management, and the bank or banks to be acquired:
    (1) Financial condition. Their financial condition and future 
prospects, including whether current and projected capital positions and 
levels of indebtedness conform to standards and policies established by 
the Board.
    (2) Managerial Resources. The competence, experience, and integrity 
of the officers, directors, and principal shareholders of the applicant, 
its subsidiaries, and the banks and bank holding companies concerned; 
their record of compliance with laws and regulations; and the record of 
the applicant and its affiliates of fulfilling any commitments to, and 
any conditions imposed by, the Board in connection with prior 
applications.
    (3) Convenience and needs of the community. The convenience and 
needs of the communities to be served, including the record of 
performance under the Community Reinvestment Act of 1977 (12 U.S.C. 2901 
et seq.) and regulations issued thereunder, including the Board's 
Regulation BB (12 CFR Part 228).
    (4) Availability of appropriate information. Whether the applicant 
has provided the Board with adequate assurances that it will make 
available such information on its operations or activities, and the 
operations or activities of any affiliate of the applicant, that the 
Board deems appropriate to determine and enforce compliance with the BHC 
Act and other applicable federal banking statutes, and any regulations 
thereunder.
    (5) Comprehensive supervision of foreign banks. Whether, in the case 
of an application involving a foreign bank, the foreign bank is subject 
to comprehensive supervision or regulation on a consolidated basis by 
the appropriate authorities in its home country, as provided in 
Sec. 211.25(c)(1) of the Board's Regulation K (12 CFR 211.25(c)(1)).
    (c)(1) Interstate transactions. The Board may not approve any 
application under this subpart that would permit:
    (i) The formation of a bank holding company that controls more than 
5 percent of the outstanding shares of any class of voting securities of 
two or more banks located in different states; or
    (ii) The acquisition by a bank holding company or by any of its 
subsidiaries of any voting securities of, any interest in, or 
substantially all of the assets of, an additional bank located in a 
state other than the state in which the operations of the banking 
subsidiaries of the bank holding company were principally conducted (as 
measured by total deposits) on July 1, 1966, or on the date on which the 
company became a bank holding company, whichever date is later.
    (2) Exceptions. The prohibitions of this paragraph do not apply if:
    (i) The Bank is located in a state that by statute expressly 
authorizes the acquisition of securities of, an interest in, or 
substantially all of the assets of, a bank within the state by an out-
of-state bank holding company; or
    (ii) The acquisition involves a closed or failing bank with assets 
of at least $500,000,000, and has been authorized under section 13(f) of 
the Federal Deposit Insurance Act (12 U.S.C. 1823(f)).

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended at 57 FR 13003, Apr. 15, 
1992; 58 FR 474, Jan. 6, 1993]



Sec. 225.14  Procedures for applications, notices, and hearings.

    (a) Filing application. An application for the Board's prior 
approval under this subpart shall be filed with the appropriate Reserve 
Bank on the designated form and shall comply with

[[Page 69]]

Sec. 262.3 of the Rules of Procedure (12 CFR 262.3), which requires the 
applicant to publish newspaper notice of the application.
    (b) Notice--(1) Notice to primary banning supervisor. Upon receipt 
of an application under this subpart, the Reserve Bank shall promptly 
furnish notice and a copy of the application to the primary banking 
supervisor of the bank to be acquired. The primary supervisor shall have 
30 calendar days from the date of the letter giving notice in which to 
submit its views and recommendations to the Board.
    (2) Federal Register notice. Upon receipt by the Reserve Bank of an 
application under this section, notice of the application shall be 
promptly sent to the Federal Register for publication. The Federal 
Register notice shall invite comment on the application for a period of 
no more than 30 days.
    (3) Newspaper notice. The applicant shall cause to be published in a 
newspaper of general circulation in the affected community, in the form 
prescribed by the Board in 12 CFR 262.3(b), at least one notice 
soliciting public comment on the proposed acquisition.
    (c) Accepting application for processing. Within 10 business days 
after the Reserve Bank receives an application under this section, the 
Reserve Bank shall accept it for processing, request additional 
information to complete the application, or return the application if it 
is substantially incomplete. If additional information is requested, the 
Reserve Bank shall, within 5 business days of receipt of the requested 
information, either accept the application for processing or return it 
to the applicant if it is still incomplete. Upon accepting an 
application, the Reserve Bank shall immediately send copies to the 
Board.
    (d) Action on applications--(1) Action under delegated authority. 
The Reserve Bank shall approve an application under this section within 
30 calendar days after it has accepted the application, unless the 
Reserve Bank, upon notice to the applicant, refers the application to 
the Board for decision because action under delegated authority is not 
appropriate. Upon written notice to the applicant, the Reserve Bank may 
extend the 30-day period for 15 days. If the extension of time is to 
request necessary additional information, the 15-day period does not 
commence until after the Reserve Bank receives the requested 
information.
    (2) Board action. The Board shall act on an application under this 
subpart that is referred to it for decision within 60 calendar days 
after the Reserve Bank has accepted the application, unless the Board 
notifies the applicant that the 60-day period is being extended for a 
specified period and states the reasons for the extension. In no event 
may the extension exceed the 91-day period provided in paragraph (g) of 
this section. The Board may request additional information that it 
believes is necessary for its decision.
    (e) Notice to Attorney General. The Board or Reserve Bank shall 
immediately notify the Attorney General of approval of any application 
under this section.
    (f) Hearings. As provided in section 3(b) of the Act, the Board 
shall order a hearing if it receives from the primary supervisor of the 
bank to be acquired, within the 30-day period specified in paragraph 
(b)(1) of this section, a written recommendation of disapproval of an 
application. The Board may order a formal or informal hearing or other 
proceeding on the application, as provided in Sec. 262.3(i)(2) of the 
Board's Rules of Procedure. Any request for hearing (other than from the 
primary supervisor) shall comply with Sec. 262.3(e) of the Rules of 
Procedure (12 CFR 262.3(e)).
    (g) Approval through failure to act--(1) Ninety-one day rule. An 
application under this subpart shall be deemed approved if the Board 
fails to act on the application within 91 calendar days after the date 
of submission to the Board of the complete record on the application. 
For this purpose, the Board acts when it issues an order stating that 
the Board has approved or denied the application, reflecting the votes 
of the members of the Board, and indicating that a statement of the 
reasons for the decision will follow promptly.
    (2) Complete record. For the purpose of computing the commencement 
of the 91-day period, the record is complete on the latest of:

[[Page 70]]

    (i) The date of receipt by the Board of an application that has been 
accepted by the Reserve Bank;
    (ii) The last day provided in any notice for receipt of comments and 
hearing requests on the application;
    (iii) The date of receipt by the Board of the last relevant material 
regarding the application that is needed for the Board's decision, if 
the material is received from a source outside of the Federal Reserve 
System; or
    (iv) The date of completion of any hearing or other proceeding.
    (h) Exceptions to notice and hearing requirements--(1) Probable bank 
failure. If the Board finds it must act immediately on an application in 
order to prevent the probable failure of a bank or bank holding company, 
the Board may modify or dispense with the notice and hearing 
requirements provided in this section.
    (2) Emergency. If the Board finds that, although immediate action on 
an application is not necessary, an emergency exists requiring 
expeditious action, the Board shall provide the primary supervisor ten 
days to submit its recommendation. The Board may act on such an 
application without a hearing and may modify or dispense with the other 
notice and hearing requirements provided in this section.
    (i) Waiting period. A transaction approved under this subpart, other 
than a transaction approved under Sec. 225.15, shall not be consummated 
until 30 days after the date of approval of the application, except that 
a transaction may be consummated:
    (1) Immediately upon approval, in the event that the Board has 
determined under paragraph (h) of this section that the application 
involves a probable bank failure;
    (2) On or after the fifth calendar day following the date of 
approval, in the event that the Board has determined under paragraph (h) 
of this section that an emergency exists requiring expeditious action; 
or,
    (3) On or after the fifteenth calendar day following the date of 
approval, in the event that the Board has not received any adverse 
comments from the United States Attorney General relating to the 
competitive factors and the Attorney General has consented to such 
shorter waiting period.

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended at 57 FR 41642, Sept. 11, 
1992; 59 FR 54808, Nov. 2, 1994]



Sec. 225.15  Notice procedure for one-bank holding company formations.

    (a) Transactions which qualify under this section. An acquisition by 
a company of control of a bank may be consummated 30 days after 
providing notice to the appropriate Reserve Bank in accordance with 
paragraph (b) of this section, provided that all of the following 
conditions are met:
    (1) The shareholder or shareholders who control at least 80 percent 
of the shares of the bank would control, immediately after the 
reorganization, at least 80 percent of the shares of the holding company 
in substantially the same proportion, except for changes in 
shareholders' interests resulting from the exercise of dissenting 
shareholders' rights under State or Federal law; 5
---------------------------------------------------------------------------

    \5\ A shareholder of a bank in reorganization will be considered to 
have the same proportional interest in the holding company if the 
shareholder interest increases, on a pro rata basis, as a result of 
either the redemption of shares from dissenting shareholders by the bank 
or bank holding company or the acquisition of shares of dissenting 
shareholders by the remaining shareholders.
---------------------------------------------------------------------------

    (2) No shareholder or group of shareholders acting in concert would, 
following the reorganization, own or control 10 percent or more of any 
class of voting shares of the bank holding company unless that 
shareholder or group of shareholders was authorized, after review under 
the Change in Bank Control Act of 1978 (12 U.S.C. 1817(j)) by the 
appropriate Federal banking agency for the bank, to own or control 10 
percent or more of any class of voting shares of the bank; 6
---------------------------------------------------------------------------

    \6\ This procedure is not available in cases in which the exercise 
of dissenting shareholders' rights would cause a company that is not a 
bank holding company (other than the company in formation) to be 
required to register as a bank holding company. This procedure also is 
not available for the formation of a bank holding company organized in 
mutual form.

---------------------------------------------------------------------------

[[Page 71]]

    (3) The bank is adequately capitalized (as defined in section 38 of 
the Federal Deposit Insurance Act (12 U.S.C. 1831o));
    (4) The bank has received at least a composite ``satisfactory'' 
rating at its most recent examination, in the event that the bank has 
been subject to an examination;
    (5) At the time of the reorganization, neither the bank nor any of 
its officers, directors or shareholders is involved in any unresolved 
supervisory or enforcement matters with any appropriate Federal banking 
agency;
    (6) The company demonstrates that any debt that it would incur at 
the time of the reorganization, and the proposed means of retiring this 
debt, would not place undue burden on the holding company or its 
subsidiary on a pro forma basis; 7
---------------------------------------------------------------------------

    \7\ For a banking organization with consolidated assets, on a pro 
forma basis, of less than $150 million (other than a banking 
organization that would control a de novo bank), this requirement would 
be satisfied if the proposal would comply with the Board's policy 
statement on small one-bank holding company formations (12 CFR Part 225, 
Appendix C).
---------------------------------------------------------------------------

    (7) The holding company would not, as a result of the 
reorganization, acquire control of any additional bank or engage in any 
activities other than those of managing and controlling banks; and
    (8) During this period, neither the appropriate Reserve Bank nor the 
Board has objected to the proposal or required the filing of an 
application under Sec. 225.14 of this subpart.
    (b) Contents of notice. A notice filed under this subsection must 
include:
    (1) Certification by the notificant's board of directors that the 
requirements of 12 U.S.C. 1842(a)(C) and this section are met by the 
proposal;
    (2) A list identifying the shareholders of the bank prior to the 
reorganization and of the holding company following the reorganization, 
and specifying the percentage of shares held by each shareholder in the 
bank and proposed to be held in the new holding company;
    (3) A description of the resulting management of the proposed bank 
holding company and its subsidiary bank, including:
    (i) Biographical information regarding any senior officers and 
directors of the resulting bank holding company who were not senior 
officers or directors of the bank prior to the reorganization; and,
    (ii) A detailed history of the involvement of any officer, director 
or shareholder of the resulting bank holding company in any 
administrative or criminal proceeding;
    (4) Pro forma financial statements for the holding company, and a 
description of the amount, source and terms of debt, if any, that the 
bank holding company proposes to incur, and information regarding the 
sources and timing for debt service and retirement; and,
    (5) Verification that notice of the proposal has been published in a 
newspaper of general circulation in the community in which the bank is 
located that provides an opportunity for interested persons to comment 
on the notice for a period of at least 15 calendar days.
    (c) Acknowledgement of notice. Within 7 calendar days following 
receipt of a notice under this section, the Reserve Bank shall provide 
the notificant with a written acknowledgement of receipt of the notice. 
This written acknowledgment shall indicate that the transaction 
described in the notice may be consummated on the 30th calendar day 
after the date of receipt of the notice if the Reserve Bank or the Board 
has not objected to the proposal during that time.
    (d) Application required upon objection. The Reserve Bank or the 
Board may object to a proposal during the notice period by providing the 
bank holding company with a written explanation of the reasons for the 
objection. In such case, the bank holding company may file an 
application for prior approval of the proposal pursuant to section 
225.14 of this subpart.

[Reg. Y, 59 FR 54808, Nov. 2, 1994]

[[Page 72]]



   Subpart C--Nonbanking Activities and Acquisitions by Bank Holding 
                                Companies



Sec. 225.21  Prohibited nonbanking activities and acquisitions; exempt bank holding companies.

    (a) Prohibited nonbanking activities and acquisitions. Except as 
provided in Sec. 225.22 of this subpart, a bank holding company or a 
subsidiary may not engage in, or acquire or control, directly or 
indirectly, voting securities or assets of a company engaged in, any 
activity other than:
    (1) Banking or managing or controlling banks and other subsidiaries 
authorized under the BHC Act; and
    (2) An activity that the Board determines to be so closely related 
to banking or managing or controlling banks as to be a proper incident 
thereto, including any incidental activities that are necessary to carry 
on such an activity, if the bank holding company has obtained the prior 
approval of the Board for that activity in accordance with and subject 
to the requirements of this regulation.
    (b) Exempt bank holding companies. The following bank holding 
companies are exempt from the provisions of this subpart:
    (1) Family-owned companies. Any company that is a ``company covered 
in 1970,'' as defined in section 2(b) of the BHC Act, more than 85 
percent of the voting securities of which was collectively owned on June 
30, 1968, and continuously thereafter, by members of the same family (or 
their spouses) who are lineal descendants of common ancestors.
    (2) Labor, agricultural, and horticultural organizations. Any 
company that was on January 4, 1977, both a bank holding company and a 
labor, agricultural, or horticultural organization exempt from taxation 
under section 501 of the Internal Revenue Code (26 U.S.C. 501(c)).
    (3) Companies granted hardship exemption. Any bank holding company 
that has controlled only one bank since before July 1, 1968, and that 
has been granted an exemption by the Board under section 4(d) of the BHC 
Act, subject to any conditions imposed by the Board.
    (4) Companies granted exemption on other grounds. Any company that 
acquired control of a bank before December 10, 1982, without the Board's 
prior approval under section 3 of the BHC Act, on the basis of a narrow 
interpretation of the term ``demand deposit'' or ``commercial loan'' if 
the Board has determined that: (i) coverage of the company as a bank 
holding company under this subpart would be unfair or represent an 
unreasonable hardship; and (ii) exclusion of the company from coverage 
under this regulation is consistent with the purposes of the BHC Act and 
section 106 of the Bank Holding Company Act Amendments of 1970 (12 
U.S.C. 1971, 1972(1)). The provisions of Sec. 225.4 of Subpart A of this 
regulation are not applicable to a company exempt under this paragraph.



Sec. 225.22  Exempt nonbanking activities and acquisitions.

    (a) Servicing activities. A bank holding company may, without the 
Board's prior approval under this subpart, furnish services to or 
perform services for, or establish or acquire a company that engages 
solely in furnishing services to or performing services for:
    (1) The bank holding company or its subsidiaries in connection with 
their activities as authorized by law, including services that are 
necessary to fulfill commitments entered into by the subsidiaries with 
third parties, if the bank holding company or servicing company complies 
with the Board's published interpretations and does not act as principal 
in dealing with third parties; and
    (2) The internal operations of the bank holding company or its 
subsidiaries. Services for the internal operations of the bank holding 
company or its subsidiaries include, but are not limited to:
    (i) Accounting, auditing, and appraising;
    (ii) Advertising and public relations;
    (iii) Data processing and data transmission services, data bases or 
facilities;
    (iv) Personnel services;
    (v) Courier services;

[[Page 73]]

    (vi) Holding or operating property used wholly or substantially by a 
subsidiary in its operations or for its future use;
    (vii) Liquidating property acquired from a subsidiary;
    (viii) Liquidating property acquired from any sources either prior 
to May 9, 1956, or the date on which the company became a bank holding 
company, whichever is later; and
    (ix) Selling, purchasing, or underwriting insurance such as blanket 
bond insurance, group insurance for employees, and property and casualty 
insurance.
    (b) Safe deposit business. A bank holding company or nonbank 
subsidiary may, without the Board's prior approval, conduct a safe 
deposit business, or acquire voting securities of a company that 
conducts such a business.
    (c) Nonbanking acquisitions not requiring prior Board approval. The 
Board's prior approval is not required under this subpart for the 
following acquisitions:
    (1) DPC acquisitions. (i) Voting securities or assets, acquired by 
foreclosure or otherwise, in the ordinary course of collecting a debt 
previously contracted (``DPC property'') in good faith, if the DPC 
property is divested within two years of acquisition.
    (ii) The Board may, upon request, extend this two-year period for up 
to three additional one-year periods. The Board may permit additional 
extensions for up to 5 years (for a total of 10 years), for real estate 
or other assets that are demonstrated by the bank holding company to 
have value and marketability characteristics similar to real estate.
    (iii) Transfers of DPC property within the bank holding company 
system do not extend any period for divestiture of the property.
    (2) Securities or assets required to be divested by subsidiary. 
Voting securities or assets required to be divested by a subsidiary at 
the request of an examining federal or state authority (except by the 
Board under the BHC Act or this regulation), if the bank holding company 
divests the securities or assets within two years from the date acquired 
from the subsidiary.
    (3) Fiduciary investments. Voting securities or assets acquired by a 
bank or other company (other than a trust that is a company) in good 
faith in a fiduciary capacity, if the voting securities or assets are:
    (i) Held in the ordinary course of business; and
    (ii) Not acquired for the benefit of the company or its 
shareholders, employees, or subsidiaries.
    (4) Securities eligible for investment by a national bank. Voting 
securities of the kinds and amounts explicitly eligible by federal 
statute (other than section 4 of the Bank Service Corporation Act, 12 
U.S.C. 1864) for investment by a national bank, and voting securities 
acquired prior to June 30, 1971, in reliance on section 4(c)(5) of the 
BHC Act and interpretations of the Comptroller of the Currency under 
section 5136 of the Revised Statutes (12 U.S.C. 24(7)).
    (5) Securities or property representing 5 percent or less of a 
company. Voting securities of a company or property that, in the 
aggregate, represent 5 percent or less of the outstanding shares of any 
class of voting securities of a company or a 5 percent interest or less 
in the property, subject to the provisions of 12 CFR 225.137.
    (6) Securities of investment company. Voting securities of an 
investment company that is solely engaged in investing in securities and 
that does not own or control more than 5 percent of the outstanding 
shares of any class of voting securities of any company.
    (7) Assets acquired in the ordinary course of business. Assets of a 
company acquired in the ordinary course of business, subject to the 
provisions of 12 CFR 225.132, if the assets relate to activities in 
which the acquiring company has previously received Board approval under 
this regulation to engage in the geographic areas to be served.
    (8) Asset acquisitions by consumer finance or mortgage company or 
industrial bank. Assets of an office(s) of a company, all or 
substantially all of which relate to making, acquiring, or servicing 
loans for personal, family, or household purposes, if:
    (i) The acquiring company has previously received Board approval 
under this regulation to engage in consumer finance, residential 
mortgage banking,

[[Page 74]]

or industrial banking activities in the geographic areas to be served by 
the acquired office(s);
    (ii) The assets acquired during any twelve-month period do not 
represent more than 25 percent of the assets (on a consolidated basis) 
of the acquiring consumer finance company, mortgage company or 
industrial bank, or more than $25 million, whichever amount is less;
    (iii) The assets acquired do not represent more than 50 percent of 
the selling company's consolidated assets that are devoted to the 
consumer finance, residential mortgage banking, or industrial banking 
business;
    (iv) The acquiring company notifies the Reserve Bank of the 
acquisition within 30 days after the acquisition; and
    (v) The acquiring company, after giving effect to the transaction, 
meets the Board's Capital Adequacy Guidelines (Appendix A to Subparts A 
through E) and the Board has not previously notified the acquiring 
company that it may not acquire assets under the exemption in this 
paragraph.
    (d) Acquisition of securities by subsidiary banks--(1) National 
bank. A national bank or its subsidiary may, without the Board's 
approval under this subpart, acquire or retain securities on the basis 
of section 4(c)(5) of the BHC Act in accordance with the regulations of 
the Comptroller of the Currency.
    (2) State bank. A state-chartered bank or its subsidiary may, 
insofar as Federal law is concerned and without the Board's prior 
approval under this subpart:
    (i) Acquire or retain securities, on the basis of section 4(c)(5) of 
the BHC Act, of the kinds and amounts explicitly eligible by federal 
statute for investment by a national bank; or
    (ii) Acquire or retain all (but, except for directors' qualifying 
shares, not less than all) of the securities of a company that engages 
solely in activities in which the parent bank may engage, at locations 
at which the bank may engage in the activity, and subject to the same 
limitations as if the bank were engaging in the activity directly.
    (e) Activities and securities of new bank holding companies. A 
company that becomes a bank holding company may, for a period of two 
years, engage in nonbanking activities and control voting securities or 
assets of a nonbank subsidiary, if the bank holding company engaged in 
such activities or controlled such voting securities or assets on the 
date it became a bank holding company. The Board may grant requests for 
up to three one-year extensions of the two-year period.
    (f) Grandfathered activities and securities. Unless the Board orders 
divestiture or termination under section 4(a)(2) of the BHC Act, a 
``company covered in 1970,'' as defined in section 2(b) of the BHC Act, 
may:
    (1) Retain voting securities or assets and engage in activities that 
it has lawfully held or engaged in continuously since June 30, 1968; and
    (2) Acquire voting securities of any newly-formed company to engage 
in such activities.
    (g) Securities or activities exempt under Regulation K. A bank 
holding company may acquire voting securities or assets and engage in 
activities as authorized in Regulation K (12 CFR Part 211).



Sec. 225.23  Procedures for notices to engage in nonbanking activities.

    (a) Notice required for nonbanking activities. A notice for the 
Board's prior approval under Sec. 225.21(a) to engage in or acquire a 
company engaged in a nonbanking activity shall be filed by a bank 
holding company (including a company seeking to become a bank holding 
company) with the appropriate Reserve Bank in accordance with this 
section and the Board's Rules of Procedure (12 CFR 262.3).
    (1) Engaging de novo in listed activities. A bank holding company 
seeking to commence or to engage de novo, either directly or through a 
subsidiary, in a nonbanking activity listed in Sec. 225.25 shall file a 
notice containing the following:
    (i) A description of the activities to be conducted;
    (ii) The identity of the company that will conduct the activity; and
    (iii) If the notificant proposes to conduct the activity through an 
existing subsidiary, a description of the existing activities of the 
subsidiary.
    (2) Acquiring company engaged in listed activities. A bank holding 
company

[[Page 75]]

seeking to acquire or control voting securities or assets of a company 
engaged in a nonbanking activity listed in Sec. 225.25 shall file a 
notice containing the following:
    (i) A description of the proposal, including a description of each 
proposed activity, and the effect of the proposal on competition among 
entities engaging in each proposed activity;
    (ii) The identity of any entity involved in the proposal, and if the 
notificant proposes to conduct the activity through an existing 
subsidiary, a description of the existing activities of the subsidiary;
    (iii) A statement of the public benefits that can reasonably be 
expected to result from the proposal; and
    (iv) A description of the terms and sources of funds for the 
transaction; a copy of any pertinent purchase agreement(s); balance 
sheet and income statements for the most recent fiscal quarter and year-
end for any company to be acquired; parent company only and consolidated 
pro forma balance sheets for the notificant as of the most recent fiscal 
quarter; and calculations of pro forma consolidated risk-based capital 
ratios and leverage ratio for the notificant as of the most recent 
fiscal quarter.
    (3) Engaging in or acquiring company to engage in unlisted 
activities. A bank holding company seeking to commence or to engage de 
novo, or to acquire or control voting securities or assets of a company 
engaged in, any activity not listed in Sec. 225.25 shall file a notice 
containing the following:
    (i) Evidence that the proposed activity is so closely related to 
banking or managing or controlling banks as to be a proper incident 
thereto;
    (ii) A commitment to comply with all conditions and limitations that 
have been established by the Board governing the proposed activity; and
    (iii) The information required in paragraph (a)(2) of this section, 
as appropriate.
    (b) Notice provided to Board. The Reserve Bank shall immediately 
send to the Board a copy of any notice received under paragraphs (a)(2) 
or (a)(3) of this section.
    (c) Notice to public--(1) Listed activities and activities approved 
by order. A Reserve Bank that receives a notice involving an activity 
listed in Sec. 225.25 or previously approved by the Board by order shall 
immediately send notice of receipt of the proposal to the Board for 
publication in the Federal Register. The Federal Register notice shall 
invite public comment on the proposal for a period of 15 days.
    (2) New activities--(i) In general. In the case of a notice under 
this section involving an activity that is not listed in Sec. 225.25 and 
that has not been previously approved by the Board by order, the Board 
shall send notice of the proposal to the Federal Register for 
publication, unless the Board determines that the notificant has not 
demonstrated that the activity is so closely related to banking or to 
managing or controlling banks as to be a proper incident thereto. The 
Federal Register notice shall invite public comment on the proposal for 
a reasonable period of time, generally for 30 days.
    (ii) Time for publication. The Board shall send the notice required 
under this paragraph to the Federal Register within 10 business days of 
acceptance by the Reserve Bank. The Board may extend the 10-day period 
for an additional 30 calendar days upon notice to the notificant. In the 
event notice of a proposal is not published for comment, the Board shall 
inform the notificant of the reasons for the decision.
    (d) Action on notices--(1) Reserve Bank action--(i) In general. 
Within 30 calendar days after receipt by the Reserve Bank of a notice 
filed pursuant to paragraphs (a)(1) or (a)(2) of this section, the 
Reserve Bank shall:
    (A) Approve the notice; or
    (B) Refer the notice to the Board for decision because substantive 
adverse comment has been received or because action under delegated 
authority is not appropriate.
    (ii) Return of incomplete notice. Within 15 calendar days of 
receipt, the Reserve Bank may return any notice as informationally 
incomplete that does not contain all of the information required by this 
subpart. The return of such a notice shall be deemed action on the 
notice.
    (iii) Extension of period for action. The Reserve Bank may, within 
the 30-day

[[Page 76]]

period provided in this paragraph for action on a notice, extend such 
30-day period for an additional 15 calendar days.
    (iv) Notice of action. The Reserve Bank shall promptly notify the 
bank holding company of any action, referral or extension under this 
paragraph.
    (v) Close of public comment period. The Reserve Bank shall not 
approve any notice under this paragraph prior to the fifth business day 
after the close of the public comment period, unless an emergency exists 
that requires expedited or immediate action.
    (2) Board action--(i) Internal schedule. The Board seeks to act on 
every notice referred to it for decision within 60 days of the date that 
the notice is filed with the Reserve Bank. If the Board is unable to act 
within this period, the Board will notify the notificant and explain the 
reasons and the date by which the Board expects to act.
    (ii) Required time limit for Board action. The Board shall act on 
any notice under this section that is referred to it for decision within 
60 calendar days after the submission of a complete notice.
    (iii) Extension of required period for action--(A) In general. The 
Board may extend the 60-day period required for Board action under 
paragraph (d)(2)(ii) of this section for an additional 30 days upon 
notice to the notificant.
    (B) Unlisted activities. If a notice involves a proposal to engage 
in an activity that is not listed in Sec. 225.25, the Board may extend 
the period required for Board action under paragraph (d)(2)(ii) of this 
section for an additional 90 days. This 90-day extension is in addition 
to the 30-day extension period provided in paragraph (d)(2)(iii)(A) of 
this section. The Board shall notify the notificant that the notice 
period has been extended and explain the reasons for the extension.
    (3) Requests for additional information. The Board or the Reserve 
Bank may at any time request any additional information that either 
believes is needed for a decision on any notice under this subpart.
    (4) Tolling of period. The Board or the Reserve Bank, as the case 
may be, may at any time extend or toll the time period for action on a 
notice for any period with the consent of the notificant.
    (5) Approval through failure to act. A notice under this subpart 
shall be deemed to be approved at the conclusion of the period that 
begins on the date the complete notice is received by the Reserve Bank 
or the Board and that ends 60 calendar days plus any applicable 
extension and tolling period thereafter.
    (6) Complete notice. A notice shall be deemed to be complete for 
purposes of this subpart at such time as it contains all information 
required by this subpart and all other information requested by the 
Board or the Reserve Bank in connection with the particular notice.
    (e) Expedited procedure for small acquisitions--(1) Filing notice. 
As an alternative to the notice procedure of paragraph (a)(2) of this 
section, a bank holding company may satisfy the notice requirement of 
this section in connection with the acquisition of voting securities or 
assets of a company engaged in an activity listed in Sec. 225.25 by:
    (i) Providing the appropriate Reserve Bank with a description of the 
transaction; and either
    (ii) Submitting a copy of a newspaper notice in the form prescribed 
by the Board; or
    (iii) Requesting the Board to publish notice of the proposal in the 
Federal Register as provided in paragraph (c)(1) of this section.
    (2) Contents of publication. A newspaper notice under this 
subsection shall be published in a newspaper of general circulation in 
the areas to be served as a result of the acquisition and shall provide 
an opportunity for interested persons to comment on the notice for a 
period of at least 10 calendar days.
    (3) Criteria for use of expedited procedure. The procedure in this 
paragraph is available only if:
    (i) Neither the book value of the assets to be acquired nor the 
gross consideration to be paid for the securities or assets exceeds the 
greater of:
    (A) $15 million; or
    (B) Five percent of the consolidated assets of the acquiring company 
up to a maximum of $300 million;

[[Page 77]]

    (ii) The bank holding company has previously received Board approval 
to engage in the activity involved in the acquisition; and
    (iii) The bank holding company meets the Board's Capital Adequacy 
Guidelines (Appendix A of subparts A through E of this part).
    (4) Action on notice. Within 5 business days after the close of the 
comment period specified in the Federal Register notice or within 15 
calendar days after receipt by the Reserve Bank of the newspaper notice, 
the Reserve Bank shall either approve the proposal or refer it to the 
Board for decision if action under delegated authority is not 
appropriate. The Board shall act in accordance with paragraph (d)(2) of 
this section on a notice under this paragraph that is referred to it for 
decision. The Reserve Bank, upon written notice to the notificant, may 
extend the time period for approval under this paragraph for a 
reasonable period of time not to exceed 30 days.
    (f) Hearings--(1) Procedure to request hearing. Any request for a 
hearing on a notice under this section shall comply with the provisions 
of 12 CFR 262.3(e).
    (2) Determination to hold hearing. The Board may order a formal or 
informal hearing or other proceeding on a notice as provided in 12 CFR 
262.3(i)(2). The Board shall order a hearing only if there are disputed 
issues of material fact that cannot be resolved in some other manner.
    (3) Extension of period for hearing. The Board may extend the time 
for action on any notice for such time as is reasonably necessary to 
conduct a hearing and evaluate the hearing record. Such extension shall 
not exceed 91 calendar days after the date of submission to the Board of 
the complete record on the notice. The procedures for computation of the 
91-day rule as set forth in Sec. 225.14(g) apply to notices under this 
subpart that involve hearings.
    (g) Notice to expand or alter nonbanking activities--(1) De novo 
expansion. A notice under paragraph (a)(1) of this section is required 
to open a new office or to form a subsidiary to engage in, or to 
relocate an existing office engaged in, a nonbanking activity that the 
Board has previously approved for the bank holding company under this 
regulation, only if:
    (i) The Board's prior approval was limited geographically;
    (ii) The activity is to be conducted in a country outside of the 
United States and the bank holding company has not previously received 
prior Board approval under this regulation to engage in the activity in 
that country; or
    (iii) The Board or appropriate Reserve Bank has notified the company 
that a notice under paragraph (a)(1) of this section is required.
    (2) Activities outside United States. With respect to activities to 
be engaged in outside the United States that require approval under this 
subpart, the procedures of this section apply only to activities to be 
engaged in directly by a bank holding company that is not a qualifying 
foreign banking organization or by a nonbank subsidiary of a bank 
holding company approved under this subpart. Regulation K (12 CFR part 
211) governs other international operations of bank holding companies.
    (3) Alteration of nonbanking activity. A notice under paragraph 
(a)(1) of this section is required to alter a nonbanking activity in any 
material respect from that considered by the Board in acting on the 
application or notice to engage in the activity.
    (h) Emergency thrift institution acquisitions. In the case of a 
notice to acquire a thrift institution, the Board may modify or dispense 
with the public notice and hearing requirements of this section if the 
Board finds that an emergency exists that requires the Board to act 
immediately and the primary Federal regulator of the institution 
concurs.

[Reg. Y, 59 FR 54803, Nov. 2, 1994]



Sec. 225.24  Factors considered in acting on nonbanking proposals.

    (a) In general. In evaluating a notice under Sec. 225.23, the Board 
shall consider whether the performance by the notificant of the 
activities can reasonably be expected to produce benefits to the public 
(such as greater convenience, increased competition, and gains in 
efficiency) that outweigh possible adverse effects (such as undue 
concentration of resources, decreased or

[[Page 78]]

unfair competition, conflicts of interest, and unsound banking 
practices).
    (b) Financial and managerial resources. Consideration of the factors 
in paragraph (a) of this section includes an evaluation of the financial 
and managerial resources of the notificant, including its subsidiaries, 
and any company to be acquired, and the effect of the proposed 
transaction on those resources.
    (c) Competitive effect of de novo proposals. Unless the record 
demonstrates otherwise, the commencement or expansion of a nonbanking 
activity de novo is presumed to result in benefits to the public through 
increased competition.
    (d) Denial for lack of information. The Board may deny any notice 
submitted under this subpart if the notificant neglects, fails, or 
refuses to furnish all information required by the Board.

[Reg. Y, 59 FR 54805, Nov. 2, 1994]



Sec. 225.25  List of permissible nonbanking activities.

    (a) Closely related nonbanking activities. The activities listed 
below are so closely related to banking or managing or controlling banks 
as to be a proper incident thereto and may be engaged in by a bank 
holding company or a subsidiary thereof in accordance with and subject 
to the requirements of this regulation.
    (b)(1) Making and servicing loans. Making, acquiring, or servicing 
loans or other extensions of credit (including issuing letters of credit 
and accepting drafts) for the company's account or for the account of 
others, such as would be made, for example, by the following types of 
companies:
    (i) Consumer finance;
    (ii) Credit card;
    (iii) Mortgage;
    (iv) Commercial finance; and
    (v) Factoring.
    (2) Industrial banking. Operating an industrial bank, Morris Plan 
bank, or industrial loan company, as authorized under state law, so long 
as the institution is not a bank.
    (3) Trust company functions. Performing functions or activities that 
may be performed by a trust company (including activities of a 
fiduciary, agency, or custodial nature), in the manner authorized by 
federal or state law, so long as the institution is not a bank and does 
not make loans or investments or accept deposits other than:
    (i) Deposits that are generated from trust funds not currently 
invested and that are properly secured to the extent required by law;
    (ii) Deposits representing funds received for a special use in the 
capacity of managing agent or custodian for an owner of, or investor in, 
real property, securities, or other personal property; or for such owner 
or investor as agent or custodian of funds held for investment or as 
escrow agent; or for an issuer of, or broker or dealer in securities, in 
a capacity such as a paying agent, dividend disbursing agent, or 
securities clearing agent; provided such deposits are not employed by or 
for the account of the customer in the manner of a general purpose 
checking account or interest-bearing account; or
    (iii) Making call loans to securities dealers or purchasing money 
market instruments such as certificates of deposit, commercial paper, 
government or municipal securities, and bankers acceptances. (Such 
authorized loans and investments, however, may not be used as a method 
of channeling funds to nonbanking affiliates of the trust company.)
    (4) Investment or financial advice. Acting as investment or 
financial adviser to the extent of:
    (i) Serving as the advisory company for a mortgage or a real estate 
investment trust;
    (ii) Serving as investment adviser (as defined in section 2(a)(20) 
of the Investment Company Act of 1940, 15 U.S.C. 80a-2(a)(20)), to an 
investment company registered under that act, including sponsoring, 
organizing, and managing a closed-end investment company;
    (iii) Providing portfolio investment advice1 to any other 
person;
---------------------------------------------------------------------------

    \1 \The term ``portfolio investment'' is intended to refer generally 
to the investment of funds in a ``security'' as defined in section 2(1) 
of the Securities Act of 1933 (15 U.S.C. 77b) or in real property 
interests, except where the real property is to be used in the trade or 
business of the person being advised. In furnishing portfolio investment 
advice, bank holding companies and their subsidiaries shall observe the 
standards of care and conduct applicable to fiduciaries.

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[[Page 79]]

    (iv) Furnishing general economic information and advice, general 
economic statistical forecasting services and industry studies;2
---------------------------------------------------------------------------

    \2 \This is to be contrasted with ``management consulting,'' which 
the Board views as including, but not limited to, the provision of 
analysis or advice as to a firm's (A) purchasing operations, such as 
inventory control, sources of supply, and cost minimization subject to 
constraints; (B) production operations, such as quality control, work 
measurement, product methods, scheduling shifts, time and motion 
studies, and safety standards; (C) marketing operations, such as market 
testing, advertising programs, market development, packaging, and brand 
development; (D) planning operations, such as demand and cost 
projections, plant location, program planning, corporate acquisitions 
and mergers, and determination of long-term and short-term goals; (E) 
personnel operations, such as recruitment, training, incentive programs, 
employee compensation, and management-personnel relations; (F) internal 
operations, such as taxes, corporate organization, budgeting systems, 
budget control, data processing systems evaluation, and efficiency 
evaluation; or (G) research operations, such as product development, 
basic research, and product design and innovation. The Board has 
determined that ``management consulting'' is not an activity that is so 
closely related to banking or managing or controlling banks as to be a 
proper incident thereto.
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    (v) Providing financial advice to state and local governments and 
foreign governments (including foreign municipalities and agencies of 
foreign governments), such as with respect to the issuance of their 
securities; and
    (vi) (A)(1) Providing advice, including rendering fairness opinions 
and providing valuation services, in connection with mergers, 
acquisitions, divestitures, joint ventures, leveraged buyouts, 
recapitalizations, capital structurings, and financing transactions 
(including private and public financings and loan syndications); and 
conducting financial feasibility studies; \3\ and,
---------------------------------------------------------------------------

    \3\ Feasibility studies do not include assisting management with the 
planning or marketing for a given project or providing general 
operational or management advice.
---------------------------------------------------------------------------

    (2) Providing financial and transaction advice regarding the 
structuring and arranging of swaps, caps, and similar transactions 
relating to interest rates, currency exchange rates or prices, and 
economic and financial indices, and similar transactions.
    (B) The financial advisory services described in this subparagraph 
may be provided only to corporations, to financial and nonfinancial 
institutions, and to natural persons whose individual net worth (or 
joint net worth with a spouse) at the time the service is provided 
exceeds $1,000,000.
    (C) Financial advisory activities under this subparagraph may not 
encompass the performance of routine tasks or operations for a customer 
on a daily or continuous basis, and the financial advisor shall not make 
available to any of its affiliates confidential information regarding a 
party obtained in the course of providing any financial advisory 
services except as authorized by the party.
    (5) Leasing--(i) Leasing personal or real property. Leasing personal 
or real property or acting as agent, broker, or adviser in leasing such 
property if--
    (A) The lease is to serve as the functional equivalent of an 
extension of credit to the lessee of the property;
    (B) The property to be leased is acquired specifically for the 
leasing transaction under consideration or was acquired specifically for 
an earlier leasing transaction;
    (C) The lease is on a nonoperating basis;\4\
---------------------------------------------------------------------------

    \4\ For purposes of the leasing of automobiles, the requirement that 
the lease be on a nonoperating basis means that the bank holding company 
may not, directly or indirectly: (A) provide for the servicing, repair, 
or maintenance of the leased vehicle during the lease term; (B) purchase 
parts and accessories in bulk or for an individual vehicle after the 
lessee has taken delivery of the vehicle; (C) provide for the loan of an 
automobile during servicing of the leased vehicle; (D) purchase 
insurance for the lessee; or (E) provide for the renewal of the 
vehicle's license merely as a service to the lessee where the lessee 
could renew the license without authorization from the lessor.
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    (D) At the inception of the initial lease the effect of the 
transaction (and, with respect to governmental entities only, reasonably 
anticipated future

[[Page 80]]

transactions \5\) will yield a return that will compensate the lessor 
for not less than the lessor's full investment in the property plus the 
estimated total cost of financing the property over the term of the 
lease,\6\ from--
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    \5\ The Board understands that some federal, state, and local 
governmental entities may not enter into a lease for a period in excess 
of one year. Such an impediment does not prohibit a company authorized 
to conduct leasing activities under this paragraph from entering into a 
lease with such governmental entities if the company reasonably 
anticipates that the governmental entities will renew the lease annually 
until such time as the company is fully compensated for its investment 
in the leased property plus its costs of financing the property. 
Further, a company authorized to conduct personal property leasing 
activities under this paragraph may also engage in so-called ``bridge'' 
lease financing of personal property, but not real property, if the 
lease is short-term pending completion of long-term financing, by the 
same or another lender.
    \6\ The estimate by the lessor of the total cost of financing the 
property over the term of the lease should reflect, among other factors, 
the term of the lease, the modes of financing available to the lessor, 
the credit rating of the lessor and/or the lessee, if a factor in the 
financing, and prevailing rates in the money and capital markets.
---------------------------------------------------------------------------

    (1) Rentals;
    (2) Estimated tax benefits (investment tax credit, net economic gain 
from tax deferral from accelerated depreciation, and other tax benefits 
with a substantially similar effect);
    (3) The estimated residual value of the property at the expiration 
of the initial term of the lease, which in no case shall exceed 25 
percent of the acquisition cost of the property to the lessor; and
    (4) In the case of a lease of personal property of not more than 
seven years in duration, such additional amount, which shall not exceed 
60 percent of the acquisition cost of the property, as may be provided 
by an unconditional guarantee by a lessee, independent third party, or 
manufacturer, which has been determined by the lessor to have the 
financial resources to meet such obligation, that will assure the lessor 
of recovery of its investment and cost of financing;
    (E) The maximum lease term during which the lessor must recover the 
lessor's full investment in the property, plus the estimated total cost 
of financing the property, shall be 40 years; and
    (F) At the expiration of the lease (including any renewals or 
extensions with the same lessee), all interest in the property shall be 
either liquidated or released on a nonoperating basis as soon as 
practicable but in no event later than two years from the expiration of 
the lease;\7\ however, in no case shall the lessor retain any interest 
in the property beyond 50 years after its acquisition of the property.
---------------------------------------------------------------------------

    \7\ In the event of a default on, or early termination of, a lease 
agreement prior to the expiration of the lease term, the lessor shall 
either re-lease the property, subject to all the conditions of this 
paragraph, or liquidate the property as soon as practicable but in no 
event later than two years from the date of default on the lease 
agreement (in the event of a default) or termination of the lease (in 
the event of termination), or such additional time as the Board may 
permit under Sec. 225.22(c)(1) of this part, as if the property were DPC 
property. During the period following default on, or expiration or 
termination of a lease, the lessor may lease the property on a short-
term basis in a lease that does not conform to the requirements of this 
paragraph provided that the property is liquidated or re-leased in a 
conforming lease prior to the expiration of this period.
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    (ii) Certain higher residual value leasing. Leasing tangible 
personal property or acting as agent, broker, or adviser in leasing such 
property, in which the lessor relies on an estimated residual value of 
the property in excess of the 25 percent limitation described in 
paragraph (b)(5)(i)(D)(3) of this section, if--
    (A) The activity otherwise meets the requirements of paragraph 
(b)(5)(i) of this section;
    (B) The lessor in no case relies on an estimated residual value of 
the property in excess of 100 percent of the acquisition cost of the 
property to the lessor;
    (C)(1) The aggregate book value of all personal property described 
in paragraph (b)(5)(ii)(C)(2) of this section does not exceed 10 percent 
of the bank holding company's consolidated domestic and foreign assets;
    (2) For purposes of calculating the limit provided in paragraph 
(b)(5)(ii)(C) subclause (1) of this section, the bank

[[Page 81]]

holding company shall include all tangible personal property held for 
lease in transactions in which the bank holding company or any of its 
nonbank subsidiaries acting under authority of this paragraph, or any 
domestic subsidiary bank of such holding company, relies on an estimated 
residual value in excess of 25 percent of the acquisition cost of the 
property;
    (D) The inital term of the lease is at least 90 days;\8\
---------------------------------------------------------------------------

    \8\ This minimum lease term requirement is not intended to prohibit 
a bank holding company from acquiring personal property subject to an 
existing lease with a remaining maturity of less than 90 days, provided 
that, at the inception of the lease, such lease conformed with all of 
the requirements of this paragraph.
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    (E) Each company that conducts leasing transactions under paragraph 
(b)(5)(ii) of this section maintains capitalization fully adequate to 
meet its obligations and support its activities, and commensurate with 
industry standards for companies engaged in comparable leasing 
activities; and
    (F) The bank holding company maintains separately identifiable 
records of the leasing activities conducted under paragraphs (b)(5) (i) 
and (ii) of this section, where it conducts leasing activities under the 
authority of both paragraphs (b)(5) (i) and (ii) of this section.
    (6) Community development. Making equity and debt investments in 
corporations or projects designed primarily to promote community 
welfare, such as the economic rehabilitation and development of low-
income areas by providing housing, services, or jobs for residents.
    (7) Data processing. Providing to others data processing and data 
transmission services, facilities (including data processing and data 
transmission hardware, software, documentation or operating personnel), 
data bases, or access to such services, facilities, or data bases by any 
technological means, if:
    (i) The data to be processed or furnished are financial, banking, or 
economic, and the services are provided pursuant to a written agreement 
so describing and limiting the services;
    (ii) The facilities are designed, marketed, and operated for the 
processing and transmission of financial, banking, or economic data; and
    (iii) The hardware provided in connection therewith is offered only 
in conjunction with software designedand marketed for the processing and 
transmission of financial, banking, or economic data, and where the 
general purpose hardware doesinot constitute more than 10 percent of the 
cost of any packaged offering.
    (8) Insurance agency and underwriting--(i) Crefit Insurance. Acting 
as principal, agent, or broker for insurance (including home mortgage 
redemption insurance) that is:
    (A) Directly related to an extension of credit by the bank holding 
company or any of its subsidiaries; and
    (B) Limited to assuring the repayment of the outstanding balance due 
on the extension of credit \9\ in the event of the death, disability, or 
involuntary unemployment of the debtor.
---------------------------------------------------------------------------

    \9\ ``Extension of credit'' includes direct loans to borrowers, 
loans purchased from other lenders, and leases of real or personal 
property so long as the leases are nonoperating and full payout leases 
that meet the requirements of paragraph (b)(5) of this section.
---------------------------------------------------------------------------

    (ii) Finance company subsidiary. Acting as agent or broker for 
insurance directly related to an extension of credit by a finance 
company \10\ that is a subsidiary of a bank holding company, if:
---------------------------------------------------------------------------

    \10\ ``Finance company'' includes all nondeposit-taking financial 
institutions that engage in a significant degree of consumer lending 
(excluding lending secured by first mortgages) and all financial 
institutions specifically defined by individual States as finance 
companies and that engage in a significant degree of consumer lending.
---------------------------------------------------------------------------

    (A) The insurance is limited to assuring repayment of the 
outstanding balance on such extension of credit in the event of loss or 
damage to any property used as collateral for the extension of credit; 
and
    (B) The extension of credit is not more than $10,000, or $25,000 if 
it is to finance the purchase of a residential manufactured home \11\ 
and the credit is secured by the home; and
---------------------------------------------------------------------------

    \11\ These limitations increase at the end of each calendar year, 
beginning with 1982, by the percentage increase in the Consumer Price 
Index for Urban Wage Earners and Clerical Workers published by the 
Bureau of Labor Statistics.

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[[Page 82]]

    (C) The applicant commits to notify borrowers in writing that:
    (1) They are not required to purchase such insurance from the 
applicant;
    (2) Such insurance does not insure any interest of the borrower in 
the collateral; and
    (3) The applicant will accept more comprehensive property insurance 
in place of such single interest insurance.
    (iii) Insurance in small towns. Engaging in any insurance agency 
activity in a place where the bank holding company or a subsidiary of 
the bank holding company has a lending office and that:
    (A) Has a population not exceeding 5,000 (as shown in the preceding 
decennial census); or
    (B) Has inadequate insurance agency facilities, as determined by the 
Board, after notice and opportunity for hearing.
    (iv) Insurance agency activities conducted on May 1, 1982. Engaging 
in any specific insurance agency activity \12\ if the bank holding 
company, or subsidiary conducting the specific activity, conducted such 
activity on May 1, 1982, or received Board approval to conduct such 
activity on or before May 1, 1982.\13\ A bank holding company or 
subsidiary engaging in a specific insurance agency activity under this 
clause may:
---------------------------------------------------------------------------

    \12\ Nothing contained in this provision shall preclude a bank 
holding company subsidiary that is authorized to engage in a specific 
insurance agency activity under this clause from continuing to engage in 
the particular activity after merger with an affiliate, if the merger is 
for legitimate business purposes and prior notice has been provided to 
the Board.
    \13\ For purposes of this paragraph, activities engaged in on May 1, 
1982, include activities carried on subsequently as the result of an 
application to engage in such activities pending before the Board on May 
1, 1982, and approved subsequently by the Board or as the result of the 
acquisition by such company pursuant to a binding written contract 
entered into on or before May 1, 1982, of another company engaged in 
such activities at the time of the acquisition.
---------------------------------------------------------------------------

    (A) Engage in such specific insurance agency activity only at 
locations:
    (1) In the State in which the bank holding company has its principal 
place of business (as defined in 12 U.S.C. 1842(d));
    (2) In any State or States immediately adjacent to such State; and
    (3) In any State in which the specific insurance agency activity was 
conducted (or was approved to be conducted) by such bank holding company 
or subsidiary thereof or by any other subsidiary of such bank holding 
company on May 1, 1982; and
    (B) Provide other insurance coverages that may become available 
after May 1, 1982, so long as those coverages insure against the types 
of risks as (or are otherwise functionally equivalent to) coverages sold 
or approved to be sold on May 1, 1982 by such bank holding company or 
subsidiary.
    (v) Supervision of retail insurance agents. Supervising on behalf of 
insurance underwriters the activities of retail insurance agents who 
sell:
    (A) Fidelity insurance and property and casualty insurance on the 
real and personal property used in the operations of the bank holding 
company or its subsidiaries; and
    (B) Group insurance that protects the employees of the bank holding 
company or its subsidiaries.
    (vi) Small bank holding companies. Engaging in any insurance agency 
activity if the bank holding company has total consolidated assets of 
$50 million or less. A bank holding company performing insurance agency 
activities under this paragraph may not engage in the sale of life 
insurance or annuities except as provided in paragraphs (b)(8) (i) and 
(iii) of this section, and it may not continue to engage in insurance 
agency activities pursuant to this provision more than 90 days after the 
end of the quarterly reporting period in which total assets of the 
holding company and its subsidiaries exceed $50 million.
    (vii) Insurance agency activities conducted before 1971. Engaging in 
any insurance agency activity performed at any location in the United 
States directly or indirectly by a bank holding company that was engaged 
in insurance agency activities prior to January 1, 1971, as a 
consequence of approval by the Board prior to January 1, 1971.
    (9) Operating savings association. Owning, controlling or operating 
a savings

[[Page 83]]

association, if the savings association engages only in deposit taking 
activities and lending and other activities that are permissible for 
bank holding companies under this subpart C.
    (10) Courier services. Providing courier services for:
    (i) Checks, commercial papers, documents, and written instruments 
(excluding currency or bearer-type negotiable instruments) that are 
exchanged among banks and financial institutions; and
    (ii) Audit and accounting media of a banking or financial nature and 
other business records and documents used in processing such media.\14\
---------------------------------------------------------------------------

    \14\ See also the Board's interpretation on courier activities (12 
CFR 225.129), which sets forth conditions for bank holding company entry 
into the activity.
---------------------------------------------------------------------------

    (11) Management consulting to depository institutions. Providing 
management consulting advice \15\ to nonaffiliated bank and nonbank 
depository institutions, including commercial banks, savings and loan 
associations, mutual savings banks, credit unions, industrial banks, 
Morris Plan banks, cooperative banks, and industrial loan companies, if:
---------------------------------------------------------------------------

    \15\ A bank holding company that has received the Board's prior 
approval to engage in offering management consulting advice to 
nonaffiliated commercial banks as of April 20, 1982, may offer such 
advice on a de novo basis to nonbank depository institutions pursuant to 
this paragraph without filing an application under Sec. 225.23 of this 
subpart.
---------------------------------------------------------------------------

    (i) Neither the bank holding company nor any of its subsidiaries own 
or control, directly or indirectly, any equity securities in the client 
institution;
    (ii) No management official, as defined in 12 CFR 212.2(h), of the 
bank holding company or any of its subsidiaries serves as a management 
official of the client institution, except where such interlocking 
relationships are permitted pursuant to an exemption granted under 12 
CFR 212.4(b);
    (iii) The advice is rendered on an explicit fee basis without regard 
to correspondent balances maintained by the client institution at any 
depository institution subsidiary of the bank holding company; and
    (iv) Disclosure is made to each potential client institution of (A) 
the names of all depository institutions that are affiliates of the 
consulting company, and (B) the names of all existing client 
institutions located in the same county(ies), Metropolitan Statistical 
Area, or Primary Metropolitan Statistical Area as the client 
institution.\16\
---------------------------------------------------------------------------

    \16\ In performing this activity, bank holding companies are not 
authorized to perform tasks or operations or provide services to client 
institutions either on a daily or continuing basis, except as necessary 
to instruct the client institution on how to perform such services for 
itself. See also the Board's interpretation of bank management 
consulting advice (12 CFR 225.131). This interpretation shall apply to 
the performance of management consulting services for commercial banks 
and any other type of depository institution.
---------------------------------------------------------------------------

    (12) Money orders, savings bonds, and travelers checks. The issuance 
and sale at retail of money orders and similar consumer-type payment 
instruments having a face value of not more than $1,000; the sale of 
U.S. savings bonds; and the issuance and sale of travelers checks.
    (13) Real estate and personal property appraising. Performing 
appraisals of real estate and tangible and intangible personal property, 
including securities.
    (14) Arranging commercial real estate equity financing. Acting as 
intermediary for the financing of commercial or industrial income-
producing real estate by arranging for the transfer of the title, 
control and risk of such a real estate project to one or more investors, 
if:
    (i) The financing arranged exceeds $1 million;
    (ii) The bank holding company and its affiliates do not provide 
financing to the investors to acquire a real estate project for which 
the bank holding company arranges equity financing;
    (iii) The bank holding company and its affidIates do not have an 
interest in or participate in managing, deve,oping or syndicating a real 
estate project for which it arranges equity financing, and do not 
promote or sponsor the development or syndication of such property; and
    (iv) The fee received for arranging equity financing for a real 
estate project is not based on profits to be derived from the project 
and is not larger than

[[Page 84]]

the fee that would be charged by an unaffiliated intermediary.
    (15) Securities brokerage. (i) Providing securities brokerage 
services, related securities credit activities pursuant to the Board's 
Regulation T (12 CFR part 220), and incidental activities such as 
offering custodial services, individual retirement accounts, and cash 
management services, if the securities brokerage services are restricted 
to buying and selling securities solely as agent for the account of 
customers and do not include securities underwriting or dealing; and
    (ii) Providing securities brokerage services under paragraph 
(b)(15)(i) of this section in combination with investment advisory 
services permissible under paragraph (b)(4) of this section \17\ subject 
to the following requirements:
---------------------------------------------------------------------------

    \17\ Investment advisory services authorized under paragraph (b)(4) 
include the exercise of discretion in buying and selling securities on 
behalf of a customer provided that investment discretion is exercised 
only on behalf of institutional customers and only at the request of the 
customer. A bank holding company or its subsidiary providing these 
discretionary investment management services must comply with applicable 
law, including fiduciary principles, and obtain the consent of its 
customers before engaging, as principal or as agent in a transaction in 
which an affiliate acts as principal, in securities transactions on the 
customer's behalf.
---------------------------------------------------------------------------

    (A) The company must prominently disclose in writing \18\ to each 
customer before providing any brokerage or advisory services, and, in 
the case of disclosures required under paragraph (b)(15)(ii)(A) (1) of 
this section, again in each customer account statement, that:
---------------------------------------------------------------------------

    \18\ These disclosures may be made orally provided that a written 
disclosure is provided to the customer immediately thereafter.
---------------------------------------------------------------------------

    (1) The company is solely responsible for its contractual 
obligations and commitments;
    (2) The company is not a bank and is separate from any affiliate 
bank; and
    (3) The securities sold, offered, or recommended by the company are 
not insured by the Federal Deposit Insurance Corporation, and are not 
obligations of, or endorsed or guaranteed in any way by, any bank, 
unless this is the case; and
    (B) The company and its affiliates may not share any confidential 
information concerning their respective customers without the consent of 
the customer.
    (16) Underwriting and dealing in government obligations and money 
market instruments. Underwriting and dealing in obligations of the 
United States, general obligations of states and their political 
subdivisions, and other obligations that state member banks of the 
Federal Reserve System may be authorized to underwrite and deal in under 
12 U.S.C. 24 and 335, including bankers' acceptances and certificates of 
deposit, under the same limitations as would be applicable if the 
activity were performed by the bank holding company's subsidiary member 
banks or its subsidiary nonmember banks as if they were member banks.
    (17) Foreign exchange advisory and transactional services. 
Providing, by any means, general information and statistical forecasting 
with respect to foreign exchange markets; advisory services designed to 
assist customers in monitoring, evaluating and managing their foreign 
exchange exposures; and transactional services with respect to foreign 
exchange by arranging for ``swaps'' among customers with complementary 
foreign exchange exposures and for the execution of foreign exchange 
transactions; provided the activity is conducted through a separately 
incorporated subsidiary of the bank holding company that:
    (i) Does not take positions in foreign exchange for its own account;
    (ii) Observes the standards of care and conduct applicable to 
fiduciaries with respect to its foreign exchange advisory and 
transactional services; and
    (iii) Does not itself execute foreign exchange transactions.
    (18) Futures commission merchant. Acting as a futures commission 
merchant for nonaffiliated persons in the execution and clearance on 
major commodity exchanges of futures contracts and options on futures 
contracts for bullion, foreign exchange, government securities, 
certificates of deposit and other money market instruments that a bank 
may buy or sell in the cash

[[Page 85]]

market for its own account, if the activity is conducted through a 
separately incorporated subsidiary of the bank holding company that:
    (i) Does not become a clearing member of any exchange or clearing 
association that requires the parent corporation of the clearing member 
to also become a member of that exchange or clearing association unless 
a waiver of the requirement is obtained;
    (ii) Does not trade for its own account except for the purpose of 
hedging a cash position in the related government security, bullion, 
foreign currency, or money market instrument;
    (iii) Time stamps orders of all customers to the nearest minute, 
executes all orders strictly in chronological sequence to the extent 
consistent with the customers' specifications, and executes all orders 
with reasonable promptness with due regard to market conditions;
    (iv) Does not extend credit to customers for the purpose of meeting 
initial or maintenance margins required of customers except for posting 
margin on behalf of customers in advance of prompt reimbursement; and
    (v) Has and maintains capitalization fully adequate to meet its own 
commitments and those of its customers, including affiliates.
    (19) Investment advice on financial futures and options on futures. 
Providing investment advice, including counsel, publications, written 
analyses and reports, as a futures commission merchant (``FCM'') 
authorized pursuant to paragraph (b)(18) of this section or as a 
commodity trading advisor (``CTA'') registered with the Commodity 
Futures Trading Commission, with respect to the purchase and sale of 
futures contracts and options on futures contracts for the commodities 
and instruments referred to in paragraph (b)(18) of this section, 
Provided that the FCM or CTA:
    (i) Does not trade for its own account except for the purpose of 
hedging a cash position in the related government security, bullion, 
foreign currency, or money market instrument; and
    (ii) Limits its advice to financial institutions and other 
financially sophisticated customers that have significant dealings or 
holdings in the underlying commodities, securities, or instruments.
    (20) Consumer financial counseling. Providing advice, educational 
courses, and instructional materials to consumers on individual 
financial management matters, including debt consolidation, applying for 
a mortgage, bankruptcy, budget management, tax planning, retirement and 
estate planning, insurance and general investment management, Provided:
    (i) Educational materials and presentations used by the counselor 
may not promote specific products and services;
    (ii) The counselor advises each customer that the customer is not 
required to purchase any services from affiliates; and
    (iii) The counselor does not obtain or disclose confidential 
information concerning its customers without the customer's written 
consent or pursuant to legal process.

This paragraph does not authorize the provision of advice on specific 
products or investments or the provision of portfolio investment advice 
or portfolio management, which are authorized under paragraph (b)(3) and 
(4)(iii) of this section subject to certain fiduciary standards. If 
consumer financial counseling is offered by a company that also offers 
securities brokerage services pursuant to paragraph (b)(15) of this 
section, the brokerage and counseling services must be provided by 
different personnel and in separate offices or in separate and 
distinctly marked areas.
    (21) Tax planning and preparation. Providing individuals, 
businesses, and nonprofit organizations tax planning and tax preparation 
services, including advice and strategies to minimize tax liabilities, 
and the preparation of tax forms, Provided:
    (i) The materials used by the tax planner or preparer do not promote 
other specific products and services; and
    (ii) The tax planner or preparer does not obtain or disclose 
confidential information concerning its customers without the customer's 
written consent or pursuant to legal process.
    (22) Check guaranty services. Authorizing a subscribing merchant to 
accept

[[Page 86]]

personal checks tendered by the merchant's customers in payment for 
goods and services and purchasing from the merchant validly authorized 
checks that are subsequently dishonored, provided that the check 
guarantor does not discriminate against checks drawn on unaffiliated 
banks.
    (23) Operating collection agency. Collecting overdue accounts 
receivable, either retail or commercial, provided the collection agency:
    (i) Does not obtain the names of customers of competing collection 
agencies from an affiliated depository institution that maintains trust 
accounts for those agencies; and
    (ii) Does not provide preferential treatment to an affiliate or a 
customer of such affiliate seeking collection of an outstanding debt.
    (24) Operating credit bureau. Maintaining files on the past credit 
history of consumers and providing that information to a credit grantor 
who is considering a borrower's application for credit, provided that 
the credit bureau does not provide preferential treatment to a customer 
of an affiliated financial institution.

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended at 51 FR 36211, Oct. 9, 
1986; 51 FR 40000, Nov. 4, 1986; Reg. Y, 54 FR 37301, Sept. 8, 1989; 57 
FR 20961, May 18, 1992; 57 FR 41387, Sept. 10, 1992]



             Subpart D--Control and Divestiture Proceedings



Sec. 225.31  Control proceedings.

    (a) Preliminary determination of control. (1) The Board may issue a 
preliminary determination of control under the procedures set forth in 
this section in any case in which:
    (i) Any of the presumptions of control set forth in paragraph (d) of 
this section is present; or
    (ii) It otherwise appears that a company has the power to exercise a 
controlling influence over the management or policies of a bank or other 
company.
    (2) If the Board makes a preliminary determination of control under 
this section, the Board shall send notice to the controlling company 
containing a statement of the facts upon which the preliminary 
determination is based.
    (b) Response to preliminary determination of control. Within 30 
calendar days of issuance by the Board of a preliminary determination of 
control or such longer period permitted by the Board, the company 
against whom the determination has been made shall:
    (1) Submit for the Board's approval a specific plan for the prompt 
termination of the control relationship;
    (2) File an application under subpart B or C of this regulation to 
retain the control relationship; or
    (3) Contest the preliminary determination by filing a response, 
setting forth the facts and circumstances in support of its position 
that no control exists, and, if desired, requesting a hearing or other 
proceeding.
    (c) Hearing and final determination. (1) The Board shall order a 
formal hearing or other appropriate proceeding upon the request of a 
company that contests a preliminary determination that the company has 
the power to exercise a controlling influence over the management or 
policies of a bank or other company, if the Board finds that material 
facts are in dispute. The Board may also in its discretion order a 
formal hearing or other proceeding with respect to a preliminary 
determination that the company controls voting securities of the bank or 
other company under the presumptions in paragraph (d)(1) of this 
section.
    (2) At a hearing or other proceeding, any applicable presumptions 
established by paragraph (d) of this section shall be considered in 
accordance with the Federal Rules of Evidence and the Board's Rules of 
Practice for Formal Hearings (12 CFR part 263).
    (3) After considering the submissions of the company and other 
evidence, including the record of any hearing or other proceeding, the 
Board shall issue a final order determining whether the company controls 
voting securities, or has the power to exercise a controlling influence 
over the management or policies, of the bank or other company. If a 
control relationship is found, the Board may direct the company to 
terminate the control relationship or to file an application for the 
Board's approval to retain the control relationship under subpart B or C 
of this regulation.

[[Page 87]]

    (d) Rebuttable presumptions of control. The following rebuttable 
presumptions shall be used in any proceeding under this section:
    (1) Control of voting securities--(i) Securities convertible into 
voting securities. A company that owns, controls, or holds securities 
that are immediately convertible, at the option of the holder or owner, 
into voting securities of a bank or other company, controls the voting 
securities.
    (ii) Option or restriction on voting securities. A company that 
enters into an agreement or understanding under which the rights of a 
holder of voting securities of a bank or other company are restricted in 
any manner controls the securities. This presumption does not apply 
where the agreement or understanding:
    (A) Is a mutual agreement among shareholders granting to each other 
a right of first refusal with respect to their shares;
    (B) Is incident to a bona fide loan transaction; or
    (C) Relates to restrictions on transferability and continues only 
for the time necessary to obtain approval from the appropriate Federal 
supervisory authority with respect to acquisition by the company of the 
securities.
    (2) Control over company--(i) Management agreement. A company that 
enters into any agreement or understanding with a bank or other company 
(other than an investment advisory agreement), such as a management 
contract, under which the first company or any of its subsidiaries 
directs or exercises significant influence over the general management 
or overall operations of the bank or other company controls the bank or 
other company.
    (ii) Shares controlled by company and associated individuals. A 
company that, together with its management officials or controlling 
shareholders (including members of the immediate families of either as 
defined in 12 CFR 206.2(k)), owns, controls, or holds with power to vote 
25 percent or more of the outstanding shares of any class of voting 
securities of a bank or other company controls the bank or other 
company, if the first company owns, controls, or holds with power to 
vote more than 5 percent of the outstanding shares of any class of 
voting securities of the bank or other company.
    (iii) Common management officials. A company that has one or more 
management officials in common with a bank or other company controls the 
bank or other company, if the first company owns, controls or holds with 
power to vote more than 5 percent of the outstanding shares of any class 
of voting securities of the bank or other company, and no other person 
controls as much as 5 percent of the outstanding shares of any class of 
voting securities of the bank or other company.
    (iv) Shares held as fiduciary. The presumptions in paragraphs (d)(2) 
(ii) and (iii) of this section do not apply if the securities are held 
by the company in a fiduciary capacity without sole discretionary 
authority to exercise the voting rights.
    (e) Presumption of non-control--(1) In any proceeding under this 
section, there is a presumption that any company that directly or 
indirectly owns, controls, or has power to vote less than 5 percent of 
the outstanding shares of any class of voting securities of a bank or 
other company does not have control over that bank or other company.
    (2) In any proceeding under this section, or judicial proceeding 
under the BHC Act, other than a proceeding in which the Board has made a 
preliminary determination that a company has the power to exercise a 
controlling influence over the management or policies of the bank or 
other company, a company may not be held to have had control over the 
bank or other company at any given time, unless that company, at the 
time in question, directly or indirectly owned, controlled, or had power 
to vote 5 percent or more of the outstanding shares of any class of 
voting securities of the bank or other company, or had already been 
found to have control on the basis of the existence of a controlling 
influence relationship.

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended at 58 FR 474, Jan. 6, 1993]



Sec. 225.32  Divestiture proceedings.

    (a) Ineffective divestitures. (1) The divestiture of assets or 
voting securities by a bank holding company (or a company that would be 
a bank holding

[[Page 88]]

company but for the divestiture) is ineffective, and the divesting 
company shall be presumed to control the acquiring person or the 
divested assets or securities, if:
    (i) The acquiring person is indebted in any manner to the divesting 
company; or
    (ii) The divesting company has any management official in common 
with the acquiring person.
    (2) Except in the case of a proceeding initiated under paragraph (f) 
of this section or Sec. 225.31 of this subpart, the Board will regard 
the presumption of control in paragraph (a)(1)(i) of this section and 
section 2(g)(3) of the Bank Holding Company Act as inapplicable in the 
case of the sale or divestiture of assets or voting securities by a 
divesting company if:
    (i) The acquiring person is not an affiliate or a principal 
shareholder of the divesting company, or a company controlled by such a 
principal shareholder; and
    (ii) The acquiring person does not have any officer, director, 
trustee, or beneficiary in common with or subject to control by the 
divesting company.
    (3) For the purposes of this section:
    (i) Indebtedness does not include routine business or personal 
credit that is unrelated to the divestiture transaction and that is 
extended by the divesting company in the ordinary course of its lending 
business; and
    (ii) Divesting company and acquiring person include their parent 
companies, subsidiaries, and, if the acquiring person is an individual, 
companies controlled by the individual.
    (b) Request for divestiture determination. For any divestiture that 
is deemed ineffective under paragraph (a) of this section, the divesting 
company may request the Board to determine that the divestiture is in 
fact effective by submitting a letter that includes:
    (1) A description of the divestiture transaction and the existing 
and prospective relationship between the divesting company and the 
acquiring person;
    (2) Evidence and argument demonstrating that the divesting company 
is not capable of controlling the acquiring person or the divested 
assets or securities; and
    (3) A request for a hearing, if desired.
    (c) Hearing. The Board shall order a formal hearing or other 
appropriate proceeding upon the request of a divesting company under 
paragraph (b) of this section, if the Board finds that material facts 
are in dispute. The Board may also order a formal hearing or other 
proceeding if, in the Board's judgment, such a proceeding would be 
appropriate.
    (d) Standards for making divestiture determination. In acting on the 
request of a divesting company under paragraph (b) of this section, the 
Board shall consider the following factors, among others, in determining 
whether the divesting company is capable of controlling the acquiring 
person or the divested assets or securities:
    (1) Indebtedness of acquiring person to divesting company. (i) The 
terms of the indebtedness, including the amount of the indebtedness in 
relation to the total purchase price;
    (ii) The ability of the acquiring person to repay the indebtedness; 
and
    (iii) The manner in which the divesting company would dispose of the 
divested assets in the event it reacquires the assets as a result of 
default on the indebtedness.
    (2) Management official interlocks. The extent of the involvement of 
the interlocking management official in the operations of the divesting 
company and the acquiring person, and the management official's 
relationship to the assets or securities being divested.
    (e) Final determination. After considering the submission of the 
divesting company and other evidence, including the record of any 
hearing or other proceeding, the Board shall issue an order determining 
whether the company controls or is capable of controlling the acquiring 
person or the divested assets or securities.
    (f) Review of other divestitures. In any divestiture of assets or 
securities by a company that is not covered under paragraph (a) of his 
section, the Board may review the divestiture to assure that the 
divesting company is not capable of controlling the acquiring person or 
the divested assets or securities.

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended at 60 FR 35121, July 6, 
1995]

[[Page 89]]



                    Subpart E--Change in Bank Control



Sec. 225.41  Transactions requiring prior notice.

    (a) Prior notice requirement. (1) Any person acting directly or 
indirectly, or through or in concert with one or more persons, shall 
give the Board 60 days' written notice, as specified in Sec. 225.43 of 
this subpart, before acquiring control of a state member bank or bank 
holding company, unless the acquisition is exempt under Sec. 225.42 of 
this subpart.
    (2) For the purposes of this subpart, acquisition includes a 
purchase, assignment, transfer, or pledge of voting securities, or an 
increase in percentage ownership of a bank or other company resulting 
from a redemption of voting securities.
    (b) Acquisitions requiring prior notice. The following transactions 
constitute, or are presumed to constitute, the acquisition of control 
under the Bank Control Act, requiring prior notice to the Board:
    (1) The acquisition of any voting securities of a state member bank 
or bank holding company if, after the transaction, the acquiring person 
(or persons acting in concert) owns, controls, or holds with power to 
vote 25 percent or more of any class of voting securities of the 
institution; or
    (2) The acquisition of any voting securities of a state member bank 
or bank holding company if, after the transaction, the acquiring person 
(or persons acting in concert) owns, controls, or holds with power to 
vote 10 percent or more (but less than 25 percent) of any class of 
voting securities of the institution, and if:
    (i) The institution has registered securities under section 12 of 
the Securities Exchange Act of 1934 (15 U.S.C. 78l); or
    (ii) No other person will own a greater percentage of that class of 
voting securities immediately after the transaction.
    (c) Rebuttal of presumption of control. Prior notice to the Board is 
not required for any acquisition of voting securities under the 
presumption set forth in paragraph (b)(2) of this section, if the Board 
finds that the acquisition will not result in control. The Board will 
afford the person seeking to rebut the presumption an opportunity to 
present views in writing or, if appropriate, orally before its 
designated representatives at an informal conference.
    (d) Other transactions. Transactions other than those set forth in 
paragraph (b)(2) resulting in a person's control of less than 25 percent 
of a class of voting securities of a state member bank or bank holding 
company do not result in control for purposes of the Bank Control Act.



Sec. 225.42  Transactions not requiring prior notice.

    The following transactions do not require prior notice to the Board 
under this subpart:
    (a)(1) Increase of previously authorized acquisitions above 25 
percent. The acquisition of additional shares of a class of voting 
securities of a state member bank or bank holding company by any person 
who has lawfully acquired and maintained control of 25 percent or more 
of that class of voting securities after filing the notice required 
under Sec. 225.41(b)(1) of this subpart.
    (2) Increase of previously authorized acquisitions between 10 
percent and 25 percent. Unless the Board or Reserve Bank otherwise 
provides by order, the acquisition of additional shares of a class of 
voting securities of a state member bank or bank holding company by any 
person (or persons acting in concert) who has lawfully acquired and 
maintained control of 10 percent or more of that class of voting 
securities either after filing the notice required under 
Sec. 225.41(b)(2) of this subpart to acquire voting securities of the 
bank or bank holding company or in connection with an application 
approved under section 3 of the Bank Holding Company Act or section 
18(c) of the Federal Deposit Insurance Act, if the aggregate amount of 
voting securities held following the acquisition is less than 25 percent 
of any class of voting securities of the institution.
    (b) Acquisitions subject to approval under BHC Act or Bank Merger 
Act. Any acquisition of voting securities subject to approval under 
section 3 of the BHC Act (Sec. 225.11 of subpart B), or section 18(c) of 
the Federal Deposit Insurance

[[Page 90]]

Act (Bank Merger Act, 12 U.S.C. 1828(c)).
    (c) Transactions exempt under BHC Act. Any acquisition described in 
sections 2(a)(5) or 3(a) (A) or (B) of the BHC Act (12 U.S.C. 
1841(a)(5), 1842(a) (A) and (B)) by a person described in those 
provisions.
    (d) Grandfathered control relationships. (1) The acquisition of 
additional voting securities of a state member bank or bank holding 
company by a person who continuously since March 9, 1979 (or since that 
institution commenced business, if later) held power to vote 25 percent 
or more of any class of voting securities of that institution; or
    (2) The acquisition of additional voting securities of a state 
member bank or bank holding company by a person who is presumed under 
Sec. 225.41(b)(2) of this subpart to have controlled the institution 
continuously since March 9, 1979, if the aggregate amount of voting 
securities held does not exceed 25 percent of any class of voting 
securities of the institution.
    (e) Acquisitions in satisfaction of debts previously contracted or 
through inheritance or gift. Any acquisition of voting securities, which 
would otherwise require a notice under this subpart, in satisfaction of 
a debt previously contracted in good faith, or through inheritance or a 
bona fide gift, if the acquiring person notifies the appropriate Reserve 
Bank within 30 calendar days after the acquisition and provides any 
relevant information requested by the Reserve Bank.
    (f) Proxy solicitation. The acquisition of the power to vote 
securities of a state member bank or bank holding company through 
receipt of a revocable proxy in connection with a proxy solicitation for 
the purpose of conducting business at a regular or special meeting of 
the institution, if the proxy terminates within a reasonable period 
after the meeting.
    (g) Stock dividends. The receipt of voting securities of a state 
member bank or bank holding company through a stock dividend or stock 
split if the proportional interest of the recipient in the institution 
remains substantially the same.
    (h) Acquisition of foreign banking organization. The acquisition of 
voting securities of a qualifying foreign banking organization. (This 
exemption does not extend to the reports and information required under 
paragraphs 9, 10, and 12 of the Bank Control Act (12 U.S.C. 1817(j) (9), 
(10), and (12)).)

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended by Reg. Y, 55 FR 47845, 
Nov. 16, 1990]



Sec. 225.43  Procedures for filing, processing, publishing, and acting on notices.

    (a)(1) Filing notice. A notice required under this subpart shall be 
filed with the appropriate Reserve Bank and shall contain the 
information required by paragraph 6 of the Change in Bank Control Act 
(12 U.S.C. 1817(j)(6)), or prescribed in the designated Board form. With 
respect to personal financial statements required by paragraph 6(B) of 
the Change in Bank Control Act, an individual may include a statement of 
assets and liabilities as of a date within 90 days of filing the notice, 
a brief income summary, and a description of any subsequent material 
changes, subject to the authority of the Reserve Bank or the Board to 
require additional information.
    (2) Acceptance of notice. The 60-day notice period specified in 
Sec. 225.41 of this subpart shall commence on the date all required 
information is received by the appropriate Reserve Bank or the Board. 
The Reserve Bank shall notify the person or persons submitting a notice 
under this subpart of the date all such required information is received 
and the notice is accepted for processing.
    (3) Publication--(i) Newspaper announcement. A person(s) filing a 
notice under this subpart shall publish, in a form prescribed by the 
Board, an announcement soliciting public comment on the proposed 
acquisition. The announcement shall be published in a newspaper of 
general circulation in the community in which the head office of the 
state member bank to be acquired is located or, in the case of a 
proposed acquisition of a bank holding company, in the community in 
which its head office is located and in the community in which the head 
office of each of its subsidiary banks is located. The announcement 
shall be published no earlier that 10 calendar days prior to the filing 
of

[[Page 91]]

the notice with the appropriate Reserve Bank and no later than 10 
calendar days after acceptance and the publisher's affidavit of a 
publication shall be provided to the appropriate Reserve Bank.
    (ii) Contents of newspaper announcement. The newspaper announcement 
shall state:
    (A) The name of each person identified in the notice as a proposed 
acquiror of the bank or bank holding company and the percentage of 
shares proposed to be acquired;
    (B) The name of the bank or bank holding company to be acquired, 
including, in the case of a bank holding company, the name of each of 
its subsidiary banks; and
    (C) A statement that interested persons may submit comments on the 
notice to the Board or the appropriated Reserve Bank for a period of 20 
days or such shorter period as may be provided pursuant to paragraph 
(a)(3)(v) of this section.
    (iii) Federal Register announcement. The Board will, upon filing of 
a notice under this subpart, publish announcement in the Federal 
Register of receipt of the notice. The Federal Register announcement 
will contain the information required under paragraphs (a)(3)(ii)(A) and 
(a)(3)(ii)(B) of this section and a statement that interested persons 
may submit comments on the proposed acquisition for a period of 15 days 
or such shorter period as may be provided pursuant to paragraph 
(a)(3)(v) of this section. The Board may waive publication in the 
Federal Register if the Board determines that such action is 
appropriate.
    (iv) Delay of publication. The Board may permit delay in the 
publication required under paragraphs (a)(3)(i) and (a)(3)(iii) if the 
Board determines, for good cause shown, that it is in the public 
interest to grant such a delay. Requests for delay of publication may be 
submitted to the appropriate Reserve Bank.
    (v) Shortening or waiving notice. In circumstances requiring prompt 
action, the Board may shorten the public comment period required under 
this paragraph. The Board may also waive the newspaper publication and 
solicitation of public comment requirements of this paragraph, or it may 
act on a notice before the expiration of a public comment period, if it 
certifies in writing that disclosure of the notice, solicitation of 
public comment, or delay until expiration of the public comment period 
would seriously threaten the safety or soundness of the bank or bank 
holding company to be acquired.
    (4) Consideration of public comments. In acting upon a notice filed 
under this subpart, the Board shall consider all public comments 
received in writing within the period specified in the newspaper or 
Federal Register announcement, whichever is later. At the Board's 
option, comments received after this period may, but need not, be 
considered.
    (5) Standing. No person (other than the acquiring person) who 
submits comments or information on a notice filed under this subpart 
shall thereby become a party to the proceeding or acquire any standing 
or right to participate in the Board's consideration of the notice or to 
appeal or otherwise contest the notice or the Board's action regarding 
the notice.
    (b) Advice to bank supervisory agencies--(1) Upon accepting a notice 
relating to acquisition of securities of a state member bank, the 
Reserve Bank shall send a copy of the notice to the appropriate state 
bank supervisor, which shall have 30 calendar days from the date the 
notice is sent in which to submit its views and recommendations to the 
Board. The Reserve Bank shall also send a copy of any notice it accepts 
to the Comptroller of the Currency and the Federal Deposit Insurance 
Corporation.
    (2) If the Board finds that it must act immediately in order to 
prevent the probable failure of the bank or bank holding company 
involved, the Board may dispense with or modify the requirements for 
notice to the state supervisor.
    (c) Time period for Board action--(1) Consummation of acquisition. 
(i) A proposed acquisition may be consummated 60 days after submission 
to the Reserve Bank of a complete notice under paragraph (a) of this 
section, unless within that period the Board disapproves the proposed 
acquisition or extends the 60- 

[[Page 92]]

day period as provided under paragraph (c)(2) of this section.
    (ii) A proposed acquisition for which notice has been filed under 
paragraph (a) of this section may be consummated before the expiration 
of the 60-day period if the Board notifies the acquiring person in 
writing of the Board's intention not to disapprove the acquisition.
    (2) Extensions of time period. (i) The Board may extend the 60-day 
period in paragraph (c)(1) of this section for an additional 30 days by 
notifying the acquiring person(s).
    (ii) The Board may further extend the period during which it may 
disapprove a notice for two additional periods of not more than 45 days 
each if the Board determines that:
    (A) Any acquiring person has not furnished all the information 
required under paragraph (a) of this section;
    (B) Any material information submitted is substantially inaccurate;
    (C) It is unable to complete the investigation of an acquiring 
person because of inadequate cooperation or delay by that person; or
    (D) Additional time is needed to investigate and determine that no 
acquiring person has a record of failing to comply with the requirements 
of the Bank Secrecy Act, subchapter II of Chapter 53 of Title 31, United 
States Code.
    (iii) If the Board extends the time period under this paragraph, it 
shall notify the acquiring person(s) of the reasons therefor and shall 
include a statement of the information, if any, deemed incomplete or 
inaccurate.
    (d)(1) Investigation and report. After receiving a notice under this 
subpart, the Board or the appropriate Reserve Bank shall conduct an 
investigation of the competence, experience, integrity, and financial 
ability of each person by and for whom an acquisition is to be made. The 
Board shall also make an independent determination of the accuracy and 
completeness of any information required to be contained in a notice 
under paragraph (a) of this section. In investigating any notice 
accepted under this subpart, the Board or Reserve Bank may solicit 
information or views from any person, including any bank or bank holding 
company involved in the notice, and any appropriate state, federal, or 
foreign governmental authority.
    (2) The Board or the appropriate Reserve Bank shall prepare a 
written report of its investigation, which shall contain, at a minimum, 
a summary of the results of the investigation.
    (e) Factors considered in acting on notices. In reviewing a notice 
filed under this subpart, the Board shall consider the information in 
the record, the views and recommendations of the appropriate bank 
supervisor, and any other relevant information obtained during any 
investigation of the notice. The Board may disapprove an acquisition if 
it finds adverse effects with respect to any of the factors set forth in 
paragraph 7 of the Bank Control Act (12 U.S.C. 1817(j)(7)) (i.e., 
competitive, financial, managerial, banking or incompleteness of 
information).
    (f) Disapproval and hearing. Within three days after its decision to 
issue a notice of intent to disapprove any proposed acquisition, the 
Board shall notify the acquiring person in writing of the reasons for 
the action. Within 10 calendar days of receipt of the notice of the 
Board's intent to disapprove, the acquiring person may submit a written 
request for a hearing. Any hearing conducted under this paragraph shall 
be in accordance with the Rules of Practice for Formal Hearings (12 CFR 
part 263). At the conclusion of the hearing, the Board shall, by order, 
approve or disapprove the proposed acquisition on the basis of the 
record of the hearing. If the acquiring person does not request a 
hearing, the notice of intent to disapprove becomes final and 
unappealable.

[Reg. Y, 49 FR 818, Jan. 5, 1984, as amended at 52 FR 23023, June 17, 
1987]



                 Subpart F--Limitations on Nonbank Banks



Sec. 225.51  Seven percent growth limit for nonbank banks.

    (a) Period for determining compliance. A nonbank bank's annual rate 
of asset growth for purposes of paragraph (b) of this section shall be 
determined for twelve-month periods that begin on October 1 of each year 
and end on September 30 of the following year, unless

[[Page 93]]

the bank elects to use the alternative method described in paragraph (c) 
of this section. The initial 12-month period shall commence on October 
1, 1988, and expire on September 30, 1989, unless the Board establishes 
a different period pursuant to paragraph (d) of this section.
    (b) Computing annual rate of asset growth--(1) Initial 12-month 
period. For the initial 12-month period beginning on October 1, 1988, 
the average of the nonbank bank's Total Assets as reported on Schedule 
RC-K of its Report of Condition for the four quarters during this period 
may not increase by more than 7 percent of the nonbank bank's initial 
base. The nonbank bank may determine its initial base under any of the 
following methods:
    (i) Its Total Assets as reported on Schedule RC-K of its Report of 
Condition for the quarter ending September 30, 1988, divided by 1.601; 
or
    (ii) Its total assets on August 10, 1988, divided by 1.567, unless 
the Board determines pursuant to paragraph (d) that such amount may not 
be used; or
    (iii) The average of its Total Assets as reported on Schedule RC-K 
of its Report of Condition for the fourth quarter of 1987 and the first 
three quarters of 1988.
    (2) Succeeding 12-month periods. For each 12-month period after the 
initial period, the average of the nonbank bank's Total Assets as 
reported on Schedule RC-K of its Report of Condition for the four 
quarters during that period may not increase by more than 7 percent of 
the average of its Total Assets as reported on Schedule RC-K of its 
Report of Condition for the four quarters in the preceding 12-month 
period.
    (c) Alternative method to compute annual rate of asset growth--(1) 
Quarterly measurement permitted. In lieu of the methods for measuring 
compliance with the asset growth rate described in paragraph (b) of this 
section, a nonbank bank may elect to have its compliance with the growth 
rate determined in the following manner: Its Total Assets as reported on 
Schedule RC-K of its Report of Condition for each quarter ending after 
August 10, 1989, may not increase by more than 7 percent of its Total 
Assets as reported on Schedule RC-K of its Report of Condition for the 
same quarter of the previous year.
    (2) Initial quarter. In measuring compliance with the growth rate 
under paragraph (c)(1) of this section for the third quarter of 1989, 
the nonbank bank may elect to use its assets on August 10, 1988, as the 
base rather than the Total Assets for the third quarter of 1988 as 
reported on Schedule RC-K of its Report of Condition.
    (3) Notice required. A nonbank bank electing to compute its asset 
growth pursuant to this paragraph shall notify the Board by Ocober 15, 
1988, of this election. The nonbank bank may not thereafter alter its 
election.
    (d) Determination of total assets on August 10, 1988. If the Board 
determines that a nonbank bank has engaged in transactions that have 
artificially inflated its total assets on August 10, 1988, and that are 
unrelated to its normal business activities, the Board may require 
that--
    (1) The nonbank exclude such amounts in calculating its total assets 
on August 10, 1988, for purposes of paragraph (b)(1)(ii); or
    (2) The initial 12-month period for determining compliance with the 
7 percent growth rate shall commence on a date later than August 10, 
1988, and the institution's total assets on that later date shall be 
used instead of the bank's total assets on August 10, 1988, for purposes 
of measuring compliance with the 7 percent growth rate under paragraph 
(b)(1).
    (e) Required reports. (1) A nonbank bank shall file with the Board 
by October 15, 1988, a statement indicating the method it has elected to 
compute its initial base for purposes of paragraph (b)(1) of this 
section.
    (2) A nonbank bank electing to use its actual total assets on August 
10, 1988, as its initial base for purposes of paragraph (b)(1) of this 
section, shall report that figure to the Board by October 15, 1988, and 
the nonbank bank's Total Assets for the third calendar quarter of 1988 
as required to be reported on Schedule RC-K of its Report of Condition 
for that quarter.

[Reg. Y, 53 FR 37744, Sept. 28, 1988]

[[Page 94]]



Sec. 225.52  Limitation on overdrafts.

    (a) Definitions. For purposes of this section--
    (1) Account means a reserve account, clearing account, or deposit 
account as defined in the Board's Regulation D (12 CFR 204.2(a)(1)(i)), 
that is maintained at a Federal Reserve Bank or nonbank bank.
    (2) Cash item means (i) a check other than a check classified as a 
noncash item; or (ii) any other item payable on demand and collectible 
at par that the Federal Reserve Bank of the district in which the item 
is payable is willing to accept as a cash item.
    (3) Discount window loan means any credit extended by a Federal 
Reserve Bank to a nonbank bank or industrial bank pursuant to the 
provisions of the Board's Regulation A (12 CFR part 201).
    (4) Industrial bank means an institution as defined in section 
2(c)(2)(H) of the BHC Act (12 U.S.C. 1841(c)(2)(H)).
    (5) Noncash item means an item handled by a Reserve Bank as a 
noncash item under the Reserve Bank's ``Collection of Noncash Items 
Operating Circular'' (e.g., a maturing bankers' acceptance or a maturing 
security, or a demand item, such as a check, with special instructions 
or an item that has not been preprinted or post-encoded).
    (6) Other nonelectronic transactions include all other transactions 
not included as funds transfers, book-entry securities transfers, cash 
items, noncash items, automated clearing house transactions, net 
settlement entries, and discount window loans (e.g., original issue of 
securities or redemption of securities).
    (7) An overdraft in an account occurs whenever the Federal Reserve 
Bank, nonbank bank, or industrial bank holding an account posts a 
transaction to the account of the nonbank bank, industrial bank, or 
affiliate that exceeds the aggregate balance of the accounts of the 
nonbank bank, industrial bank, or affiliate, as determined by the 
posting rules set forth in paragraphs (d) and (e) of this section and 
continues until the aggregate balance of the account is zero or greater.
    (8) Transfer item means an item as defined in subpart B of 
Regulation J (12 CFR 210.25 et seq).
    (b) Restriction on overdrafts--(1) Affiliates. Neither a nonbank 
bank nor an industrial bank shall permit any affiliate to incur any 
overdraft in its account with the nonbank bank or industrial bank.
    (2) Nonbank banks or industrial banks. (i) No nonbank bank or 
industrial bank shall incur any overdraft in its account at a Federal 
Reserve Bank on behalf of an affiliate.
    (ii) An overdraft by a nonbank bank or industrial bank in its 
account at a Federal Reserve Bank shall be deemed to be on behalf of an 
affiliate whenever:
    (A) A nonbank bank or industrial bank holds an account for an 
affiliate from which third-party payments can be made; and
    (B) When the posting of an affiliate's transaction to the nonbank 
bank's or industrial bank's account at a Reserve Bank creates an 
overdraft in its account at a Federal Reserve Bank or increases the 
amount of an existing overdraft in its account at a Federal Reserve 
Bank.
    (c) Permissible overdrafts. The following are permissible overdrafts 
not subject to paragraph (b) of this section:
    (1) Inadvertent error. An overdraft in its account by a nonbank bank 
or its affiliate, or an industrial bank or its affiliate, that results 
from an inadvertent computer error or inadvertent accounting error, that 
was not reasonably forseeable or could not have been prevented through 
the maintenance of procedures reasonably adopted by the nonbank bank or 
affiliate to avoid such overdraft; and
    (2) Fully secured primary dealer affiliate overdrafts. (i) An 
overdraft incurred by an affiliate of a nonbank bank, which affiliate is 
recognized as a primary dealer by the Federal Reserve Bank of New York, 
in the affiliate's account at the nonbank bank, or an overdraft incurred 
by a nonbank bank on behalf of its primary dealer affiliate in the 
nonbank bank's account at a Federal Reserve Bank; provided: the 
overdraft is fully secured by bonds, notes, or other obligations which 
are direct obligations of the United States or on which the principal 
and interest are fully guaranteed by the United States or by securities 
and obligations eligible

[[Page 95]]

for settlement on the Federal Reserve book-entry system.
    (ii) An overdraft by a nonbank bank in its account at a Federal 
Reserve Bank that is on behalf of a primary dealer affiliate is fully 
secured when that portion of its overdraft at the Federal Reserve Bank 
that corresponds to the transaction posted for an affiliate that caused 
or increased the nonbank bank's overdraft is fully secured in accordance 
with paragraph (c)(2)(iii) of this section.
    (iii) An overdraft is fully secured under paragraph (c)(2)(i) when 
the nonbank bank can demonstrate that the overdraft is secured, at all 
times, by a perfected security interest in specific, identified 
obligations described in paragraph (c)(2)(i) with a market value that, 
in the judgment of the Reserve Bank holding the nonbank bank's account, 
is sufficiently in excess of the amount of the overdraft to provide a 
margin of protection in a volatile market or in the event the securities 
need to be liquidated quickly.
    (d) Posting by Federal Reserve Banks. For purposes of determining 
the balance of an account under this section, payments and transfers by 
nonbank banks and industrial banks processed by the Federal Reserve 
Banks shall be considered posted to their accounts at Federal Reserve 
Banks as follows:
    (1) Funds transfers. Transfer items shall be posted:
    (i) To the transferor's account at the time the transfer is actually 
made by the transferor's Federal Reserve Bank; and
    (ii) To the transferee's account at the time the transferee's 
Reserve Bank sends the transfer item or sends or telephones the advice 
of credit for the item to the transferee, whichever occurs first.
    (2) Book-entry securities transfers against payment. A book-entry 
securities transfer against payment shall be posted: (i) to the 
transferor's account at the time the entry is made by the transferor's 
Reserve Bank; and (ii) to the transferee's account at the time the entry 
is made by the transferee's Reserve Bank.
    (3) Discount window loans. Credit for a discount window loan shall 
be posted to the account of a nonbank bank or industrial bank at the 
close of business on the day that it is made or such earlier time as may 
be specifically agreed to by the Federal Reserve Bank and the nonbank 
bank under the terms of the loan. Debit for repayment of a discount 
window loan shall be posted to the account of the nonbank bank or 
industrial bank as of the close of business on the day of maturity of 
the loan or such earlier time as may be agreed to by the Federal Reserve 
Bank and the nonbank bank or required by the Federal Reserve Bank under 
the terms of the loan.
    (4) Other transactions. Total aggregate credits for automated 
clearing house transfers, cash items, noncash items, net settlement 
entries, and other nonelectronic transactions shall be posted to the 
account of a nonbank bank or industrial bank as of the opening of 
business on settlement day. Total aggregate debits for these 
transactions and entries shall be posted to the account of a nonbank 
bank or industrial bank as of the close of business on settlement day.
    (e) Posting by nonbank banks and industrial banks. For purposes of 
determining the balance of an affiliate's account under this section, 
payments and transfers through an affiliate's account at a nonbank bank 
or industrial bank shall be posted as follows:
    (1) Funds transfers. (i) Fedwire transfer items shall be posted:
    (A) To the transferor affiliate's account no later than the time the 
transfer is actually made by the transferor's Federal Reserve Bank; and
    (B) To the transferee affiliate's account no earlier than the time 
the transferee's Reserve Bank sends the transfer item, or sends or 
telephones the advice of credit for the item to the transferee, 
whichever occurs first.
    (ii) For funds transfers not sent or received through Federal 
Reserve Banks, debits shall be posted to the transferor affiliate's 
account not later than the time the nonbank bank or industrial bank 
becomes obligated on the transfer. Credits shall not be posted to the 
transferee affiliate's account before the nonbank bank or industrial 
bank has received actually and finally collected funds for the transfer.

[[Page 96]]

    (2) Book-entry securities transfers against payment. (i) A book-
entry securities transfer against payment shall be posted:
    (A) To the transferor affiliate's account not earlier than the time 
the entry is made by the transferor's Reserve Bank; and
    (B) To the transferee affiliate's account not later than the time 
the entry is made by the transferee's Reserve Bank.
    (ii) For book-entry securities transfers against payment that are 
not sent or received through Federal Reserve Banks, entries shall be 
posted:
    (A) To the buyer-affiliate's account not later than the time the 
nonbank bank or industrial bank becomes obligated on the transfer; and
    (B) To the seller-affiliate's account not before the nonbank bank or 
industrial bank has received actually and finally collected funds for 
the transfer.
    (3) Other transactions--(i) Credits. Except as otherwise provided in 
this paragraph, credits for cash items, noncash items, ACH transfers, 
net settlement entries, and all other nonelectronic transactions shall 
be posted to an affiliate's account on the day of the transaction (i.e., 
settlement day for ACH transactions or the day of credit for check 
transactions), but no earlier than the Federal Reserve Bank's opening of 
business on that day. Credit for cash items that are required by federal 
or state statute or regulation to be made available to the depositor for 
withdrawal prior to the posting time set forth in the preceding 
paragraph shall be posted as of the required availability time.
    (ii) Debits. Debits for cash items, noncash items, ACH transfers, 
net settlement entries, and all other nonelectronic transactions shall 
be posted to an affiliate's account on the day of the transaction (e.g., 
settlement day for ACH transactions or the day of presentment for check 
transactions), but no later than the Federal Reserve Bank's close of 
business on that day. If a check drawn on an affiliate's account or an 
ACH debit transfer received by an affiliate is returned timely by the 
nonbank bank or industrial bank in accordance with applicable law and 
agreements, no entry need to be posted to the affiliate's account for 
such item.

[Reg. Y, 53 FR 37744, Sept. 28, 1988]



                          Subpart G--Appraisals

    Source: Reg. Y, 55 FR 27771, July 5, 1990, unless otherwise noted.



Sec. 225.61  Authority, purpose, and scope.

    (a) Authority. This subpart is issued by the Board of Governors of 
the Federal Reserve System (the Board) under title XI of the Financial 
Institutions Reform, Recovery, and Enforcement Act of 1989 (FlRREA) 
(Pub. L. No. 101-73, 103 Stat. 183 (1989)), 12 U.S.C. 3310, 3331-3351, 
and section 5(b) of the Bank Holding Company Act, 12 U.S.C. 1844(b).
    (b) Purpose and scope. (1) Title XI provides protection for federal 
financial and public policy interests in real estate related 
transactions by requiring real estate appraisals used in connection with 
federally related transactions to be performed in writing, in accordance 
with uniform standards, by appraisers whose competency has been 
demonstrated and whose professional conduct will be subject to effective 
supervision. This subpart implements the requirements of title XI, and 
applies to all federally related transactions entered into by the Board 
or by institutions regulated by the Board (regulated institutions).
    (2) This subpart:
    (i) Identifies which real estate-related financial transactions 
require the services of an appraiser;
    (ii) Prescribes which categories of federally related transactions 
shall be appraised by a State certified appraiser and which by a State 
licensed appraiser; and
    (iii) Prescribes minimum standards for the performance of real 
estate appraisals in connection with federally related transactions 
under the jurisdiction of the Board.



Sec. 225.62  Definitions.

    (a) Appraisal means a written statement independently and 
impartially prepared by a qualified appraiser setting forth an opinion 
as to the market value of an adequately described property as of a 
specific date(s), supported

[[Page 97]]

by the presentation and analysis of relevant market information.
    (b) Appraisal Foundation means the Appraisal Foundation established 
on November 30, 1987, as a not-for-profit corporation under the laws of 
Illinois.
    (c) Appraisal Subcommittee means the Appraisal Subcommittee of the 
Federal Financial Institutions Examination Council.
    (d) Business loan means a loan or extension of credit to any 
corporation, general or limited partnership, business trust, joint 
venture, pool, syndicate, sole proprietorship, or other business entity.
    (e) Complex 1-to-4 family residential property appraisal means one 
in which the property to be appraised, the form of ownership, or market 
conditions are atypical.
    (f) Federally related transaction means any real estate-related 
financial transaction entered into on or after August 9, 1990, that:
    (1) The Board or any regulated institution engages in or contracts 
for; and
    (2) Requires the services of an appraiser.
    (g) Market value means the most probable price which a property 
should bring in a competitive and open market under all conditions 
requisite to a fair sale, the buyer and seller each acting prudently and 
knowledgeably, and assuming the price is not affected by undue stimulus. 
Implicit in this definition is the consummation of a sale as of a 
specified date and the passing of title from seller to buyer under 
conditions whereby:
    (1) Buyer and seller are typically motivated;
    (2) Both parties are well informed or well advised, and acting in 
what they consider their own best interests;
    (3) A reasonable time is allowed for exposure in the open market;
    (4) Payment is made in terms of cash in U.S. dollars or in terms of 
financial arrangements comparable thereto; and
    (5) The price represents the normal consideration for the property 
sold unaffected by special or creative financing or sales concessions 
granted by anyone associated with the sale.
    (h) Real estate or real property means an identified parcel or tract 
of land, with improvements, and includes easements, rights of way, 
undivided or future interests, or similar rights in a tract of land, but 
does not include mineral rights, timber rights, growing crops, water 
rights, or similar interests severable from the land when the 
transaction does not involve the associated parcel or tract of land.
    (i) Real estate-related financial transaction means any transaction 
involving:
    (1) The sale, lease, purchase, investment in or exchange of real 
property, including interests in property, or the financing thereof; or
    (2) The refinancing of real property or interests in real property; 
or
    (3) The use of real property or interests in property as security 
for a loan or investment, including mortgage-backed securities.
    (j) State certified appraiser means any individual who has satisfied 
the requirements for certification in a State or territory whose 
criteria for certification as a real estate appraiser currently meet or 
exceed the minimum criteria for certification issued by the Appraiser 
Qualifications Board of the Appraisal Foundation. No individual shall be 
a State certified appraiser unless such individual has achieved a 
passing grade upon a suitable examination administered by a State or 
territory that is consistent with and equivalent to the Uniform State 
Certification Examination issued or endorsed by the Appraiser 
Qualifications Board of the Appraisal Foundation. In addition, the 
Appraisal Subcommittee must not have issued a finding that the policies, 
practices, or procedures of the State or territory are inconsistent with 
title XI of FIRREA. The Board may, from time to time, impose additional 
qualification criteria for certified appraisers performing appraisals in 
connection with federally related transactions within its jurisdiction.
    (k) State licensed appraiser means any individual who has satisfied 
the requirements for licensing in a State or territory where the 
licensing procedures comply with title XI of FIRREA and where the 
Appraisal Subcommittee has not issued a finding that the policies, 
practices, or procedures of the State or territory are inconsistent with 
title XI. The Board may, from

[[Page 98]]

time to time, impose additional qualification criteria for licensed 
appraisers performing appraisals in connection with federally related 
transactions within the Board's jurisdiction.
    (l) Tract development means a project of five units or more that is 
constructed or is to be constructed as a single development.
    (m) Transaction value means:
    (1) For loans or other extensions of credit, the amount of the loan 
or extension of credit;
    (2) For sales, leases, purchases, and investments in or exchanges of 
real property, the market value of the real property interest involved; 
and
    (3) For the pooling of loans or interests in real property for 
resale or purchase, the amount of the loan or the market value of the 
real property calculated with respect to each such loan or interest in 
real property.

[Reg. Y, 55 FR 27771, July 5, 1990, as amended at 59 FR 29500, June 7, 
1994]



Sec. 225.63  Appraisals required; transactions requiring a State certified or licensed appraiser.

    (a) Appraisals required. An appraisal performed by a State certified 
or licensed appraiser is required for all real estate-related financial 
transactions except those in which:
    (1) The transaction value is $250,000 or less;
    (2) A lien on real estate has been taken as collateral in an 
abundance of caution;
    (3) The transaction is not secured by real estate;
    (4) A lien on real estate has been taken for purposes other than the 
real estate's value;
    (5) The transaction is a business loan that:
    (i) Has a transaction value of $1 million or less; and
    (ii) Is not dependent on the sale of, or rental income derived from, 
real estate as the primary source of repayment;
    (6) A lease of real estate is entered into, unless the lease is the 
economic equivalent of a purchase or sale of the leased real estate;
    (7) The transaction involves an existing extension of credit at the 
lending institution, provided that:
    (i) There has been no obvious and material change in market 
conditions or physical aspects of the property that threatens the 
adequacy of the institution's real estate collateral protection after 
the transaction, even with the advancement of new monies; or
    (ii) There is no advancement of new monies, other than funds 
necessary to cover reasonable closing costs;
    (8) The transaction involves the purchase, sale, investment in, 
exchange of, or extension of credit secured by, a loan or interest in a 
loan, pooled loans, or interests in real property, including mortgaged-
backed securities, and each loan or interest in a loan, pooled loan, or 
real property interest met Board regulatory requirements for appraisals 
at the time of origination;
    (9) The transaction is wholly or partially insured or guaranteed by 
a United States government agency or United States government sponsored 
agency;
    (10) The transaction either:
    (i) Qualifies for sale to a United States government agency or 
United States government sponsored agency; or
    (ii) Involves a residential real estate transaction in which the 
appraisal conforms to the Federal National Mortgage Association or 
Federal Home Loan Mortgage Corporation appraisal standards applicable to 
that category of real estate;
    (11) The regulated institution is acting in a fiduciary capacity and 
is not required to obtain an appraisal under other law; or
    (12) The Board determines that the services of an appraiser are not 
necessary in order to protect Federal financial and public policy 
interests in real estate-related financial transactions or to protect 
the safety and soundness of the institution.
    (b) Evaluations required. For a transaction that does not require 
the services of a State certified or licensed appraiser under paragraph 
(a)(1), (a)(5) or (a)(7) of this section, the institution shall obtain 
an appropriate evaluation of real property collateral that is consistent 
with safe and sound banking practices.
    (c) Appraisals to address safety and soundness concerns. The Board 
reserves the right to require an appraisal under

[[Page 99]]

this subpart whenever the agency believes it is necessary to address 
safety and soundness concerns.
    (d) Transactions requiring a State certified appraiser--(1) All 
transactions of $1,000,000 or more. All federally related transactions 
having a transaction value of $1,000,000 or more shall require an 
appraisal prepared by a State certified appraiser.
    (2) Nonresidential transactions of $250,000 or more. All federally 
related transactions having a transaction value of $250,000 or more, 
other than those involving appraisals of 1-to-4 family residential 
properties, shall require an appraisal prepared by a State certified 
appraiser.
    (3) Complex residential transactions of $250,000 or more. All 
complex 1-to-4 family residential property appraisals rendered in 
connection with federally related transactions shall require a State 
certified appraiser if the transaction value is $250,000 or more. A 
regulated institution may presume that appraisals of 1-to-4 family 
residential properties are not complex, unless the institution has 
readily available information that a given appraisal will be complex. 
The regulated institution shall be responsible for making the final 
determination of whether the appraisal is complex. If during the course 
of the appraisal a licensed appraiser identifies factors that would 
result in the property, form of ownership, or market conditions being 
considered atypical, then either:
    (i) The regulated institution may ask the licensed appraiser to 
complete the appraisal and have a certified appraiser approve and co-
sign the appraisal; or
    (ii) The institution may engage a certified appraiser to complete 
the appraisal.
    (e) Transactions requiring either a State certified or licensed 
appraiser. All appraisals for federally related transactions not 
requiring the services of a State certified appraiser shall be prepared 
by either a State certified appraiser or a State licensed appraiser.

[Reg. Y, 55 FR 27771, July 5, 1990, as amended at 58 FR 15077, Mar. 19, 
1993; 59 FR 29500, June 7, 1994]



Sec. 225.64  Minimum appraisal standards.

    For federally related transactions, all appraisals shall, at a 
minimum:
    (a) Conform to generally accepted appraisal standards as evidenced 
by the Uniform Standards of Professional Appraisal Practice promulgated 
by the Appraisal Standards Board of the Appraisal Foundation, 1029 
Vermont Ave., NW., Washington, DC 20005, unless principles of safe and 
sound banking require compliance with stricter standards;
    (b) Be written and contain sufficient information and analysis to 
support the institution's decision to engage in the transaction;
    (c) Analyze and report appropriate deductions and discounts for 
proposed construction or renovation, partially leased buildings, non-
market lease terms, and tract developments with unsold units;
    (d) Be based upon the definition of market value as set forth in 
this subpart; and
    (e) Be performed by State licensed or certified appraisers in 
accordance with requirements set forth in this subpart.

[Reg. Y, 59 FR 29501, June 7, 1994]



Sec. 225.65  Appraiser independence.

    (a) Staff appraisers. If an appraisal is prepared by a staff 
appraiser, that appraiser must be independent of the lending, 
investment, and collection functions and not involved, except as an 
appraiser, in the federally related transaction, and have no direct or 
indirect interest, financial or otherwise, in the property. If the only 
qualified persons available to perform an appraisal are involved in the 
lending, investment, or collection functions of the regulated 
institution, the regulated institution shall take appropriate steps to 
ensure that the appraisers exercise independent judgment and that the 
appraisal is adequate. Such steps include, but are not limited to, 
prohibiting an individual from performing appraisals in connection with 
federally related transactions in which the appraiser is otherwise 
involved and prohibiting directors and officers from participating in 
any vote or approval involving assets on which they performed an 
appraisal.

[[Page 100]]

    (b) Fee appraisers. (1) If an appraisal is prepared by a fee 
appraiser, the appraiser shall be engaged directly by the regulated 
institution or its agent, and have no direct or indirect interest, 
financial or otherwise, in the property or the transaction.
    (2) A regulated institution also may accept an appraisal that was 
prepared by an appraiser engaged directly by another financial services 
institution, if:
    (i) The appraiser has no direct or indirect interest, financial or 
otherwise, in the property or the transaction; and
    (ii) The regulated institution determines that the appraisal 
conforms to the requirements of this subpart and is otherwise 
acceptable.

[Reg. Y, 55 FR 27771, July 5, 1990, as amended at 59 FR 29501, June 7, 
1994]



Sec. 225.66  Professional association membership; competency.

    (a) Membership in appraisal organizations. A State certified 
appraiser or a State licensed appraiser may not be excluded from 
consideration for an assignment for a federally related transaction 
solely by virtue of membership or lack of membership in any particular 
appraisal organization.
    (b) Competency. All staff and fee appraisers performing appraisals 
in connection with federally related transactions must be State 
certified or licensed, as appropriate. However, a State certified or 
licensed appraiser may not be considered competent solely by virtue of 
being certified or licensed. Any determination of competency shall be 
based upon the individual's experience and educational background as 
they relate to the particular appraisal assignment for which he or she 
is being considered.



Sec. 225.67  Enforcement.

    Institutions and institution-affiliated parties, including staff 
appraisers and fee appraisers, may be subject to removal and/or 
prohibition orders, cease and desist orders, and the imposition of civil 
money penalties pursuant to the Federal Deposit Insurance Act, 12 U.S.C 
1811 et seq., as amended, or other applicable law.



    Subpart H--Notice of Addition or Change of Directors and Senior 
                           Executive Officers

    Source: Reg. Y, 55 FR 6790, Feb. 27, 1990, unless otherwise noted.



Sec. 225.71  Definitions.

    (a) Senior executive officer means a person who, without regard to 
title, exercises the authority of one or more of the following 
positions: chief executive officer, chief operating officer, chief 
financial officer, chief lending officer, or chief investment officer. 
Senior executive officer also includes any other person with significant 
influence over major policymaking decisions of a state member bank or 
bank holding company.
    (b) Bank or bank holding company in troubled condition means any 
state member bank or bank holding company that:
    (1) Has a composite rating, as determined in the most recent report 
of examination or inspection, of 4 or 5 under the commercial bank 
Uniform Interagency Bank Rating System or under the Federal Reserve bank 
holding company rating system;
    (2) Is subject to a cease and desist order or formal written 
agreement that requires action to improve the financial condition of the 
institution, unless otherwise informed in writing by the Board or the 
appropriate Reserve Bank; or,
    (3) Is expressly informed by the Board or Reserve Bank that it is in 
troubled condition for purposes of the requirements of this subpart on 
the basis of the institution's most recent examination, report of 
condition, or inspection, or other information available to the Board.



Sec. 225.72  Director and officer appointments; prior notice requirement.

    (a) Prior notice. A state member bank or bank holding company shall 
give the Board 30 days' written notice, as specified in Sec. 225.73, 
before adding or replacing any member of the board of directors or 
employing or changing the responsibilities of any individual to a 
position as a senior executive officer of the bank or bank holding 
company, if:

[[Page 101]]

    (1) The bank has been chartered less than two years;
    (2) Within the preceding two years, the bank or bank holding company 
has undergone a change in control that required a notice to be filed 
pursuant to the Change in Bank Control Act or subpart E of this part;
    (3) Within the preceding two years, the bank holding company became 
a registered bank holding company, unless the bank holding company is 
owned or controlled by a registered bank holding company, or the bank 
holding company was established in a reorganization in which 
substantially all of the shareholders of the bank holding company were 
shareholders of the bank prior to the bank holding company's formation; 
or
    (4) The bank or bank holding company is not in compliance with all 
minimum capital requirements applicable to the institution as determined 
on the basis of the institution's most recent report of condition, 
examination or inspection, or is otherwise in troubled condition.
    (b) Advisory directors. (1) For purposes of this subpart, except as 
provided in paragraph (b)(2) of this section, the term member of the 
board of directors does not include an advisory director who:
    (i) Is not elected by the shareholders of the bank or bank holding 
company;
    (ii) Is not authorized to vote on any matters before the board of 
directors; and
    (iii) Provides solely general policy advice to the board of 
directors.
    (2) The Board or Reserve Bank may otherwise determine that an 
advisory director is in fact functioning as a director or senior 
executive officer for purposes of this subpart.



Sec. 225.73  Procedures for filing, processing, and acting on notices; standards for disapproval; waiver of notice.

    (a)(1) Filing notice. The notice required in Sec. 225.72 shall be 
filed with the appropriate Reserve Bank and shall contain the 
information required by paragraph 6(A) of the Change in Bank Control Act 
(12 U.S.C. 1817(j)(6)(A)) or prescribed in the designated Board form, 
subject, in either case, to the authority of the Reserve Bank or the 
Board to modify these requirements or require additional information.
    (2) Acceptance of notice. The 30-day notice period specified in 
Sec. 225.72 shall begin on the date all required information is received 
by the appropriate Reserve Bank or the Board. The Reserve Bank shall 
notify the bank or bank holding company submitting the notice of the 
date all such required information is received and the notice is 
accepted for processing, and of the date on which the 30-day notice 
period will expire.
    (b) Commencement of service--(1) At expiration of period. A proposed 
director or senior executive officer may begin service 30 days after a 
complete notice under paragraph (a) of this section has been accepted by 
the Reserve Bank unless the Board or Reserve Bank issues a notice of 
disapproval of the proposed addition or employment before the end of the 
30-day period.
    (2) Prior to expiration of period. A proposed director or senior 
executive officer may begin service before the expiration of the 30-day 
period if the Board or the Reserve Bank notifies the bank or bank 
holding company in writing of the Board's intention not to disapprove 
the addition or employment.
    (c) Notice of disapproval. The Board or Reserve Bank must disapprove 
a notice under Sec. 225.72 if the Board or Reserve Bank finds that the 
competence, experience, character, or integrity of the individual with 
respect to whom the notice is submitted indicates that it would not be 
in the best interests of the depositors of the bank or in the best 
interests of the public to permit the individual to be employed by, or 
associated with, the bank or bank holding company. The notice of 
disapproval shall contain a statement of the basis for disapproval.
    (d) Appeal. (1) The disapproved individual or the state member bank 
or bank holding company may appeal to the Board the disapproval of a 
notice under this subpart within 15 calendar days of the effective date 
of the notice of disapproval. An appeal shall be in writing and explain 
the reasons for the

[[Page 102]]

appeal and include all facts, documents, and arguments that the 
appealing party wishes to be considered in the appeal.
    (2) The Board may, in its sole discretion, order an informal hearing 
if the hearing is requested in writing by the disapproved individual or 
the notificant at the time of an appeal, and the Board finds that oral 
argument is appropriate or that a hearing is necessary to resolve 
disputes regarding material issues of fact.
    (3) The disapproved individual may not serve as a director or senior 
executive officer while the appeal is pending. Written notice of the 
final decision of the Board shall be sent to the appealing party.
    (e)(1) Waiver of notice. The Board or the Reserve Bank may waive the 
prior notice required under this subpart if it finds that:
    (i) Delay would threaten the safety or soundness of the state member 
bank or the bank holding company or any of its bank subsidiaries;
    (ii) Delay would not be in the public interest; or
    (iii) Other extraordinary circumstances exist that justify waiver of 
prior notice.
    (2) Effect on disapproval authority. Any waiver issued by the Board 
or Reserve Bank shall not affect the authority of the Board or Reserve 
Bank to issue a notice of disapproval within 30 days after such waiver.

                             Interpretations



Sec. 225.101   Bank holding company's subsidiary banks owning shares of nonbanking companies.

    (a) The Board's opinion has been requested on the following related 
matters under the Bank Holding Company Act of 1956.
    (b) The question is raised as to whether shares in a nonbanking 
company which were acquired by a banking subsidiary of the bank holding 
company many years ago when their acquisition was lawful and are now 
held as investments, and which do not include more than 5 percent of the 
outstanding voting securities of such nonbanking company and do not have 
a value greater than 5 percent of the value of the bank holding 
company's total assets, are exempted from the divestment requirements of 
the Act by the provisions of section 4(c)(5) of the Act.
    (c) In the Board's opinion, this exemption is as applicable to such 
shares when held by a banking subsidiary of a bank holding company as 
when held directly by the bank holding company itself. While the 
exemption specifically refers only to shares held or acquired by the 
bank holding company, the prohibition of the Act against retention of 
nonbanking interests applies to indirect as well as direct ownership of 
shares of a nonbanking company, and, in the absence of a clear mandate 
to the contrary, any exception to this prohibition should be given equal 
breadth with the prohibition. Any other interpretation would lead to 
unwarranted results.
    (d) Although certain of the other exemptions in section 4(c) of the 
Act specifically refer to shares held or acquired by banking 
subsidiaries, an analysis of those exemptions suggests that such 
specific reference to banking subsidiaries was for the purpose of 
excluding nonbanking subsidiaries from such exemptions, rather than for 
the purpose of providing an inclusionary emphasis on banking 
subsidiaries.
    (e) It should be noted that the Board's view as to this question 
should not be interpreted as meaning that each banking subsidiary could 
own up to 5 percent of the stock of the same nonbanking organization. In 
the Board's opinion the limitations set forth in section 4(c)(5) apply 
to the aggregate amount of stock held in a particular organization by 
the bank holding company itself and by all of its subsidiaries.
    (f) Secondly, question is raised as to whether shares in a 
nonbanking company acquired in satisfaction of debts previously 
contracted (d.p.c.) by a banking subsidiary of the bank holding company 
may be retained if such shares meet the conditions contained in section 
4(c)(5) as to value and amount, notwithstanding the requirement of 
section 4(c)(2) that shares acquired d.p.c. be disposed of within two 
years after the date of their acquisition or the date of the Act, 
whichever is later. In the Board's opinion, the 5 percent exemption 
provided by section

[[Page 103]]

4(c)(5) covers any shares, including shares acquired d.p.c., that meet 
the conditions set forth in that exemption, and, consequently, d.p.c. 
shares held by a banking subsidiary of a bank holding company which meet 
such conditions are not subject to the two-year disposition requirement 
prescribed by section 4(c)(2), although any such shares would, of 
course, continue to be subject to such requirement for disposition as 
may be prescribed by provisions of any applicable banking laws or by the 
appropriate bank supervisory authorities.
    (g) Finally, question is raised as to whether shares held by banking 
subsidiaries of the bank holding company in companies holding bank 
premises of such subsidiaries are exempted from the divestment 
requirements by section 4(c)(1) of the Act. It is the Board's view that 
section 4(c)(1), exempting shares owned or acquired by a bank holding 
company in any company engaged solely in holding or operating properties 
used wholly or substantially by any subsidiary bank, is to be read and 
interpreted, like section 4(c)(5), as applying to shares owned 
indirectly by a bank holding company through a banking subsidiary as 
well as to shares held directly by the bank holding company. A contrary 
interpretation would impair the right that member banks controlled by 
bank holding companies would otherwise have to invest, subject to the 
limitations of section 24A of the Federal Reserve Act, in stock of 
companies holding their bank premises; and such a result was not, in the 
Board's opinion, intended by the Bank Holding Company Act.

[21 FR 10472, Dec. 29, 1956. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.102   Bank holding company indirectly owning nonbanking company through subsidiaries.

    (a) The Board of Governors has been requested for an opinion 
regarding the exemptions contained in section 4(c)(5) of the Bank 
Holding Company Act of 1956. It is stated that Y Company is an 
investment company which is not a bank holding company and which is not 
engaged in any business other than investing in securities, which 
securities do not include more than 5 per centum of the outstanding 
voting securities of any company and do not include any asset having a 
value greater than 5 per centum of the value of the total assets of X 
Corporation, a bank holding company. It is stated that direct ownership 
by X Corporation of voting shares of Y Company would be exempt by reason 
of section 4(c)(5) from the prohibition of section 4 of the Act against 
ownership by bank holding companies of nonbanking assets.
    (b) It was asked whether it makes any difference that the shares of 
Y Company are not owned directly by X Corporation but instead are owned 
through Subsidiaries A and B. X Corporation owns all the voting shares 
of Subsidiary A, which owns one-half of the voting shares of Subsidiary 
B. Subsidiaries A and B each own one-third of the voting shares of Y 
Company.
    (c) Section 4(c)(5) is divided into two parts. The first part 
exempts the ownership of securities of nonbanking companies when the 
securities do not include more than 5 percent of the voting securities 
of the nonbanking company and do not have a value greater than 5 percent 
of the value of the total assets of the bank holding company. The second 
part exempts the ownership of securities of an investment company which 
is not a bank holding company and is not engaged in any business other 
than investing in securities, provided the securities held by the 
investment company meet the 5 percent tests mentioned above.
    (d) In Sec. 225.101, the Board expressed the opinion that the first 
exemption in section 4(c)(5):

    * * * is as applicable to such shares when held by a banking 
subsidiary of a bank holding company as when held directly by the bank 
holding company itself. While the exemption specifically refers only to 
shares held or acquired by the bank holding company, the prohibition of 
the Act against retention of nonbanking interests applies to indirect as 
well as direct ownership of shares of a nonbanking company, and, in the 
absence of a clear mandate to the contrary, any exception to this 
prohibition should be given equal breadth with the prohibition. Any 
other interpretation would lead to unwarranted results.

    (e) The Board is of the view that the principles stated in that 
opinion are also applicable to the second exemption in section 4(c)(5), 
and that they

[[Page 104]]

apply whether or not the subsidiary owning the shares is a banking 
subsidiary. Accordingly, on the basis of the facts presented, the Board 
is of the opinion that the second exemption in section 4(c)(5) applies 
to the indirect ownership by X Corporation of shares of Y Company 
through Subsidiaries A and B.

[22 FR 2533, Apr. 13, 1957. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.103   Bank holding company acquiring stock by dividends, stock splits or exercise of rights.

    (a) The Board of Governors has been asked whether a bank holding 
company may receive bank stock dividends or participate in bank stock 
splits without the Board's prior approval, and whether such a company 
may exercise, without the Board's prior approval, rights to subscribe to 
new stock issued by banks in which the holding company already owns 
stock.
    (b) Neither a stock dividend nor a stock split results in any change 
in a stockholder's proportional interest in the issuing company or any 
increase in the assets of that company. Such a transaction would have no 
effect upon the extent of a holding company's control of the bank 
involved; and none of the five factors required by the Bank Holding 
Company Act to be considered by the Board in approving a stock 
acquisition would seem to have any application. In view of the 
objectives and purposes of the act, the word ``acquire'' would not seem 
reasonably to include transactions of this kind.
    (c) On the other hand, the exercise by a bank holding company of the 
right to subscribe to an issue of additional stock of a bank could 
result in an increase in the holding company's proportional interest in 
the bank. The holding company would voluntarily pay additional funds for 
the extra shares and would ``acquire'' the additional stock even under a 
narrow meaning of that term. Moreover, the exercise of such rights would 
cause the assets of the issuing company to be increased and in a sense, 
therefore, the ``size or extent'' of the bank holding company system 
would be expanded.
    (d) In the circumstances, it is the Board's opinion that receipt of 
bank stock by means of a stock dividend or stock split, assuming no 
change in the class of stock, does not require the Board's prior 
approval under the act, but that purchase of bank stock by a bank 
holding company through the exercise of rights does require the Board's 
prior approval, unless one of the exceptions set forth in section 3(a) 
is applicable.

[22 FR 7461, Sept. 19, 1957. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.104   ``Services'' under section 4(c)(1) of Bank Holding Company Act.

    (a) Section 4(c)(1) of the Bank Holding Company Act, among other 
things, exempts from the nonbanking divestment requirements of section 
4(a) of the Act shares of a company engaged ``solely in the business of 
furnishing services to or performing services for'' its bank holding 
company or subsidiary banks thereof.
    (b) The Board of Governors has had occasion to express opinions as 
to whether this section of law applies to the following two sets of 
facts:
    (1) In the first case, Corporation X, a nonbanking subsidiary of a 
bank holding company (Holding Company A), was engaged in the business of 
purchasing installment paper suitable for investment by banking 
subsidiaries of Holding Company A. All installment paper purchased by 
Corporation X was sold by it to a bank which is a subsidiary of Holding 
Company A, without recourse, at a price equal to the cost of the 
installment paper to Corporation X, and with compensation to the latter 
based on the earnings from such paper remaining after certain reserves, 
expenses and charges. The subsidiary bank sold participations in such 
installment paper to the other affiliated banks of Holding Company A 
which desired to participate. Purchases by Corporation X consisted 
mainly of paper insured under Title I of the National Housing Act and, 
in addition, Corporation X purchased time payment contracts covering 
sales of appliances by dealers under contractual arrangements with 
utilities, as well as paper covering home improvements which was not 
insured. Pursuant to certain service agreements, Corporation X

[[Page 105]]

made all collections, enforced guaranties, filed claims under Title I 
insurance and performed other services for the affiliated banks. Also 
Corporation X rendered to banking subsidiaries of Holding Company A 
various accounting, statistical and advisory services such as payroll, 
life insurance and budget loan installment account.
    (2) In the second case, Corporation Y, a nonbanking subsidiary of a 
bank holding company (Holding Company B, which was also a bank), 
solicited business on behalf of Holding Company B from dealers, 
throughout several adjoining or contiguous States, who made time sales 
and desired to convert their time sales paper into cash; but Corporation 
Y made no loans or purchases of sales contracts and did not discount or 
advance money for time sales obligations. Corporation Y investigated 
credit standings of purchasers obligated on time sale contracts to be 
acquired by Holding Company B, Corporation Y received from dealers the 
papers offered by them and inspected such papers to see that they were 
in order, and transmitted to Holding Company B for its determination to 
purchase, including, in some cases, issuance of drafts in favor of 
dealers in order to facilitate their prompt receipt of payment for 
installment paper purchased by Holding Company B. Corporation Y made 
collections of delinquent paper or delinquent installments, which 
sometimes involved repossession and resale of the automobile or other 
property which secured the paper. Also, upon request of purchasers 
obligated on paper held by Holding Company B, Corporation Y transmitted 
installment payments to Holding Company B. Holding Company B reimbursed 
Corporation Y for its actual costs and expenses in performing the 
services mentioned above, including the salaries and wages of all 
Corporation Y officers and employees.
    (c) While the term ``services'' is sometimes used in a broad and 
general sense, the legislative history of the Bank Holding Company Act 
indicates that in section 4(c)(1) the word was meant to be somewhat more 
limited in its application. An early version of the bill specifically 
exempted companies engaged in serving the bank holding company and its 
subsidiary banks in ``auditing, appraising, investment counseling''. The 
statute as finally enacted does not expressly mention any specific type 
of servicing activity for exemption. In recommending the change, the 
Senate Banking and Currency Committee stated that the types of services 
contemplated are ``in the fields of advertising, public relations, 
developing new business, organizations, operations, preparing tax 
returns, personnel, and many others'', which indicates that latitude 
should be given to the range of activities contemplated by this section 
beyond those specifically set forth in the early draft of the bill. 
(84th Cong., 2d Sess., Senate Report 1095, Part 2, p. 3.) It 
nevertheless seems evident that Congress intended such services to be 
types of activities generally comparable to those mentioned above from 
the early bill (``auditing, appraising, investment counseling'') and in 
the excerpt from the Committee Report on the later bill (``advertising, 
public relations, developing new business, organization, operations, 
preparing tax returns, personnel, and many others''). This legislative 
history and the context in which the term ``services'' is used in 
section 4(c)(1) seem to suggest that the term was in general intended to 
refer to servicing operations which a bank could carry on itself, but 
which the bank or its holding company chooses to have done through 
another organization. Moreover, the report of the Senate Banking and 
Currency Committee indicated that the types of servicing permitted under 
section 4(c)(1) are to be distinguished from activities of a 
``financial, fiduciary, or insurance nature'', such as those which might 
be considered for possible exemption under section 4(c)(6) of the Act.
    (d) With respect to the first set of facts, the Board expressed the 
opinion that certain of the activities of Corporation X, such as the 
accounting, statistical and advisory services referred to above, may be 
within the range of servicing activities contemplated by section 
4(c)(1), but that this would not appear to be the case with the main 
activity of Corporation X, which was the purchase of installment paper 
and the resale of such

[[Page 106]]

paper at cost, without recourse, to banking subsidiaries of Holding 
Company A. This latter and basic activity of Corporation X appeared to 
involve essentially a financial relationship between it and the banking 
subsidiaries of Holding Company A and appeared beyond the category of 
servicing exemptions contemplated by section 4(c)(1) of the Act. 
Accordingly, it was the Board's view that Corporation X could not be 
regarded as qualifying under section 4 (c)(1) as a company engaged 
``solely in the business of furnishing services to or performing 
services for'' Holding Company A or subsidiary banks thereof.
    (e) With respect to the second set of facts, the Board expressed the 
opinion that some of the activities engaged in by Corporation Y were 
clearly within the range of servicing activities contemplated by section 
4(c)(1). There was some question as to whether or not some of the other 
activities of Corporation Y mentioned above could meet the test, but on 
balance, it seemed that all such activities probably were activities in 
which Holding Company B, which as already indicated was a bank, could 
itself engage, at the present locations of Corporation Y, without being 
engaged in the operation of bank branches at those locations. In the 
circumstances, while the question was not free from doubt, the Board 
expressed the opinion that the activities of Corporation Y were those of 
a company engaged ``solely in the business of furnishing services to or 
performing services for'' Holding Company B within the meaning of 
section 4(c)(1) of the Act, and that, accordingly, the control by 
Holding Company B of shares in Corporation Y was exempted under that 
section.

[23 FR 2675, May 23, 1958. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.107   Acquisition of stock in small business investment company.

    (a) A registered bank holding company requested an opinion by the 
Board of Governors with respect to whether that company and its banking 
subsidiaries may acquire stock in a small business investment company 
organized pursuant to the Small Business Investment Act of 1958.
    (b) It is understood that the bank holding company and its 
subsidiary banks propose to organize and subscribe for stock in a small 
business investment company which would be chartered pursuant to the 
Small Business Investment Act of 1958 which provides for long-term 
credit and equity financing for small business concerns.
    (c) Section 302(b) of the Small Business Investment Act authorizes 
national banks, as well as other member banks and nonmember insured 
banks to the extent permitted by applicable State law, to invest capital 
in small business investment companies not exceeding one percent of the 
capital and surplus of such banks. Section 4(c)(4) of the Bank Holding 
Company Act exempts from the prohibitions of section 4 of the Act 
``shares which are of the kinds and amounts eligible for investment by 
National banking associations under the provisions of section 5136 of 
the Revised Statutes''. Section 5136 of the Revised Statutes (paragraph 
``Seventh'') in turn provides, in part, as follows:

Except as hereinafter provided or otherwise permitted by law nothing 
herein contained shall authorize the purchase by the association for its 
own account of any shares of stock of any corporation.

Since the shares of a small business investment company are of a kind 
and amount expressly made eligible for investment by a national bank 
under the Small Business Investment Act of 1958, it follows, therefore, 
that the ownership or control of such shares by a bank holding company 
would be exempt from the prohibitions of section 4 of the Bank Holding 
Company Act by virtue of the provisions of section 4(c)(4) of that Act. 
Accordingly, the ownership or control of such shares by the bank holding 
company would be exempt from the prohibitions of section 4 of the Bank 
Holding Company Act.

    (d) An additional question is presented, however, as to whether 
section 6 of the Bank Holding Company Act prohibits banking subsidiaries 
of the bank holding company from purchasing stock in a small business 
investment company where the latter is a ``subsidiary'' under that Act.
    (e) Section 6(a)(1) of the Act makes it unlawful for a bank to 
invest any of its

[[Page 107]]

funds in the capital stock of any other subsidiary of the bank holding 
company. However, section 6(a)(1) was, in effect, amended by section 
302(b) of the Small Business Investment Act (15 U.S.C. 682) as amended 
by the Act of June 11, 1960 (Pub. L. 86-502) so as to nullify this 
prohibition when the ``subsidiary'' is a small business investment 
company.
    (f) Accordingly, section 6 of the Bank Holding Company Act does not 
prohibit banking subsidiaries of the bank holding company from 
purchasing stock in a small business investment company organized 
pursuant to the Small Business Investment Act of 1958, where that 
company is or will be a subsidiary of the bank holding company.

[25 FR 7485, Aug. 9, 1960. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.109   ``Services'' under section 4(c)(1) of Bank Holding Company Act.

    (a) The Board of Governors has been requested by a bank holding 
company for an interpretation under section 4(c)(1) of the Bank Holding 
Company Act which, among other things, exempts from the nonbanking 
divestment requirements of section 4(a) of the Act, shares of a company 
engaged ``solely in the business of furnishing services to or performing 
services for'' its bank holding company or subsidiary banks thereof.
    (b) It is understood that a nonbanking subsidiary of the holding 
company engages in writing comprehensive automobile insurance (fire, 
theft, and collision) which is sold only to customers of a subsidiary 
bank of the holding company in connection with the bank's retail 
installment loans; that when payment is made on a loan secured by a lien 
on a motor vehicle, renewal policies are not issued by the insurance 
company; and that the insurance company receives the usual agency 
commissions on all comprehensive automobile insurance written for 
customers of the bank.
    (c) It is also understood that the insurance company writes credit 
life insurance for the benefit of the bank and its installment-loan 
customers; that each insured debtor is covered for an amount equal to 
the unpaid balance of his note to the bank, not to exceed $5,000; that 
as the note is reduced by regular monthly payments, the amount of 
insurance is correspondingly reduced so that at all times the debtor is 
insured for the unpaid balance of his note; that each insurance contract 
provides for payment in full of the entire loan balance upon the death 
or permanent disability of the insured borrower; and that this credit 
life insurance is written only at the request of, and solely for, the 
bank's borrowing customers. It is further understood that the insurance 
company engages in no other activity.
    (d) As indicated in Sec. 225.104 (23 FR 2675), the term 
``services,'' while sometimes used in a broad and general sense, appears 
to be somewhat more limited in its application in section 4(c)(1) of the 
Bank Holding Company Act. Unlike an early version of the Senate bill (S. 
2577, before amendment), the act as finally enacted does not expressly 
mention any type of servicing activity for exemption. The legislative 
history of the Act, however, as indicated in the relevant portion of the 
record of the Senate Banking and Currency Committee on amended S. 2577 
(84th Cong., 2d Sess., Senate Report 1095, Part 2, p. 3) makes it 
evident that Congress had in mind the exemption of services comparable 
to the types of activities mentioned expressly in the early Senate bill 
(``auditing, appraising, investment counseling'') and in the Committee 
Report on the later bill (``advertising, public relations, developing 
new business, organization, operations, preparing tax returns, 
personnel, and many others''). Furthermore, this Committee Report 
expressly stated that the provision of section 4(c)(1) with respect to 
``furnishing services to or performing services for'' was not intended 
to supplant the exemption contained under section 4 (c)(6) of the Act.
    (e) The only activity of the insurance company (writing 
comprehensive automobile insurance and credit life insurance) appears to 
involve an insurance relationship between it and a banking subsidiary of 
the holding company which the legislative history clearly indicates does 
not come within the meaning of the phrase ``furnishing services to or 
performing services for''

[[Page 108]]

a bank holding company or its banking subsidiaries.
    (f) Accordingly, it is the Board's view that the insurance company 
could not be regarded as qualifying as a company engaged ``solely in the 
business of furnishing services to or performing services for'' the bank 
holding company or banks with respect to which the latter is a bank 
holding company.

[23 FR 9017, Nov. 20, 1958. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.111   Limit on investment by bank holding company system in stock of small business investment companies.

    (a) Under the provisions of section 4(c)(5) of the Bank Holding 
Company Act, as amended (12 U.S.C. 1843), a bank holding company may 
acquire shares of nonbank companies ``which are of the kinds and amounts 
eligible for investment'' by national banks. Pursuant to section 302(b) 
of the Small Business Investment Act of 1958 (15 U.S.C. 682(b)), as 
amended by Title II of the Small Business Act Amendments of 1967 (Pub. 
L. 90-104, 81 Stat. 268, 270), a national bank may invest in stock of 
small business investment companies (SBICs) subject to certain 
restrictions.
    (b) On the basis of the foregoing statutory provisions, it is the 
position of the Board that a bank holding company may acquire direct or 
indirect ownership or control of stock of an SBIC subject to the 
following limits:
    (1) The total direct and indirect investments of a bank holding 
company in stock of SBICs may not exceed:
    (i) With respect to all stock of SBICs owned or controlled directly 
or indirectly by a subsidiary bank, 5 percent of that bank's capital and 
surplus;
    (ii) With respect to all stock of SBICs owned directly by a bank 
holding company that is a bank, 5 percent of that bank's capital and 
surplus; and
    (iii) With respect to all stock of SBICs otherwise owned or 
controlled directly or indirectly by a bank holding company, 5 percent 
of its proportionate interest in the capital and surplus of each 
subsidiary bank (that is, the holding company's percentage of that 
bank's stock times that bank's capital and surplus) less that bank's 
investment in stock of SBICs; and
    (2) A bank holding company may not acquire direct or indirect 
ownership or control of 50 percent or more of the shares of any class of 
equity securities of an SBIC that have actual or potential voting 
rights.
    (c) A bank holding company or a bank subsidiary that acquired direct 
or indirect ownership or control of 50 percent or more of any such class 
of equity securities prior to January 9, 1968, is not required to divest 
to a level below 50 percent. A bank that acquired 50 percent or more 
prior to January 9, 1968, may become a subsidiary in a holding company 
system without any necessity for divesting to a level below 50 percent: 
Provided, That such action does not result in the bank holding company 
acquiring control of a percentage greater than that controlled by such 
bank.

(12 U.S.C. 248. Interprets 12 U.S.C. 1843, 15 U.S.C. 682)

[33 FR 6967, May 9, 1968. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.112   Indirect control of small business concern through convertible debentures held by small business investment company.

    (a) A question has been raised concerning the applicability of 
provisions of the Bank Holding Company Act of 1956 to the acquisition by 
a bank holding company of stock of a small business investment company 
(``SBIC'') organized pursuant to the Small Business Investment Act of 
1958 (``SBI Act'').
    (b) As indicated in the interpretation of the Board (Sec. 225.107) 
published at 23 FR 7813, it is the Board's opinion that, since stock of 
an SBIC is eligible for purchase by national banks and since section 
4(c)(4) of the Holding Company Act exempts stock eligible for investment 
by national banks from the prohibitions of section 4 of that Act, a bank 
holding company may lawfully acquire stock in such an SBIC.
    (c) However, section 304 of the SBI Act provides that debentures of 
a small business concern purchased by a small business investment 
company may be converted at the option of such company into stock of the 
small business concern. The question therefore arises

[[Page 109]]

as to whether, in the event of such conversion, the parent bank holding 
company would be regarded as having acquired ``direct or indirect 
ownership or control'' of stock of the small business concern in 
violation of section 4(a) of the Holding Company Act.
    (d) The Small Business Investment Act clearly contemplates that one 
of the primary purposes of that Act was to enable SBICs to provide 
needed equity capital to small business concerns through the purchase of 
debentures convertible into stock. Thus, to the extent that a 
stockholder in an SBIC might acquire indirect control of stock of a 
small business concern, such control appears to be a natural and 
contemplated incident of ownership of stock of the SBIC. The Office of 
the Comptroller of the Currency has informally indicated concurrence 
with this interpretation insofar as it affects investments by national 
banks in stock of an SBIC.
    (e) Since the exception as to stock eligible for investment by 
national banks contained in section 4(c)(4) of the Holding Company Act 
was apparently intended to permit a bank holding company to acquire any 
stock that would be eligible for purchase by a national bank, it is the 
Board's view that section 4(a)(1) of the Act does not prohibit a bank 
holding company from acquiring stock of an SBIC, even though ownership 
of such stock may result in the acquisition of indirect ownership or 
control of stock of a small business concern which would not itself be 
eligible for purchase directly by a national bank or a bank holding 
company.

[24 FR 1584, Mar. 4, 1959. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.113   Services under section 4(a) of Bank Holding Company Act.

    (a) The Board of Governors has been requested for an opinion as to 
whether the performance of certain functions by a bank holding company 
for four banks of which it owns less than 25 percent of the voting 
shares is in violation of section 4(a) of the Bank Holding Company Act.
    (b) It is claimed that the holding company is engaged in 
``managing'' four nonsubsidiary banks, for which services it receives 
``management fees.'' Specifically, the company engages in the following 
activities for the four nonsubsidiary banks: (1) Establishment and 
supervision of loaning policies; (2) direction of the purchase and sale 
of investment securities; (3) selection and training of officer 
personnel; (4) establishment and enforcement of operating policies; and 
(5) general supervision over all policies and practices.
    (c) The question raised is whether these activities are prohibited 
by section 4(a)(2) of the Bank Holding Company Act, which permits a bank 
holding company to engage in only three categories of business: (1) 
Banking; (2) managing or controlling banks; and (3) furnishing services 
to or performing services for any bank of which the holding company owns 
or controls 25 percent or more of the voting shares.
    (d) Clearly, the activities of the company with respect to the four 
nonsubsidiary banks do not constitute ``banking.'' With respect to the 
business of ``managing or controlling'' banks, it is the Board's view 
that such business, within the purview of section 4(a)(2), is 
essentially the exercise of a broad governing influence of the sort 
usually exercised by bank stockholders, as distinguished from direct or 
active participation in the establishment or carrying out of particular 
policies or operations. The latter kinds of activities fall within the 
third category of businesses in which a bank holding company is 
permitted to engage. In the Board's view, the activities enumerated 
above fall in substantial part within that third category.
    (e) Section 4(a)(2), like all other sections of the Holding Company 
Act, must be interpreted in the light of all of its provisions, as well 
as in the light of other sections of the Act. The expression ``managing 
* * * banks,'' if it could be taken by itself, might appear to include 
activities of the sort enumerated. However, such an interpretation of 
those words would virtually nullify the last portion of section 4(a)(2), 
which permits a holding company to furnish services to or perform 
services for ``any bank of which it owns or controls 25 per centum or 
more of the voting shares.''

[[Page 110]]

    (f) Since Congress explicitly authorized the performance of services 
for banks that are at least 25 percent owned by a holding company, it 
obviously intended that the holding company should not perform services 
for banks in which it owns less than 25 percent of the voting shares. 
However, if the second category--``managing or controlling banks''--were 
interpreted to permit the holding company to perform services for any 
bank, including a bank in which it held less than 25 percent of the 
stock (or no stock whatsoever), the last clause of section 4(a)(2) would 
be meaningless.
    (g) It is principally for this reason--that is, to give effective 
meaning to the final clause of section 4(a)(2)--that the Board 
interprets ``managing or controlling banks'' in that provision as 
referring to the exercise of a stockholder's management or control of 
banks, rather than direct and active participation in their operations. 
To repeat, such active participation in operations falls within the 
third category (``furnishing services to or performing services for any 
bank'') and consequently may be engaged in only with respect to banks in 
which the holding company ``owns or controls 25 per centum or more of 
the voting shares.''
    (h) Accordingly, it is the Board's conclusion that, in performing 
the services enumerated, the bank holding company is ``furnishing 
services to or performing services for'' the four banks referred to. 
Under the Act such furnishing or performing of services is permissible 
only if the holding company owns or controls 25 percent of the voting 
shares of each bank receiving such services, and, since the company owns 
less than 25 percent of the voting shares of these banks, it follows 
that these activities are prohibited by section 4(a)(2).
    (i) While this conclusion is required, in the Board's opinion, by 
the language of the statute, it may be noted further that any other 
conclusion would make it possible for bank holding company or any other 
corporation, through arrangements for the ``managing'' of banks in the 
manner here involved, to acquire effective control of banks without 
acquiring bank stocks and thus to evade the underlying objectives of 
section 3 of the Act.

[25 FR 281, Jan. 14, 1960. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.115   Applicability of Bank Service Corporation Act in certain bank holding company situations.

    (a) Questions have been presented to the Board of Governors 
regarding the applicability of the recently enacted Bank Service 
Corporation Act (Pub. L. 87-856, approved October 23, 1962) in cases 
involving service corporations that are subsidiaries of bank holding 
companies under the Bank Holding Company Act of 1956. In addition to 
being charged with the administration of the latter Act, the Board is 
named in the Bank Service Corporation Act as the Federal supervisory 
agency with respect to the performance of bank services for State member 
banks.
    (b) Holding company-owned corporation serving only subsidiary banks. 
(1) One question is whether the Bank Service Corporation Act is 
applicable in the case of a corporation, wholly owned by a bank holding 
company, which is engaged in performing ``bank services'', as defined in 
section 1(b) of the Act, exclusively for subsidiary banks of the holding 
company.
    (2) Except as noted below with respect to section 5 thereof, the 
Bank Service Corporation Act is not applicable in this case. This is 
true because none of the stock of the corporation performing the 
services is owned by any bank and the corporation, therefore, is not a 
``bank service corporation'' as defined in section 1(c) of the Act. A 
corporation cannot meet that definition unless part of its stock is 
owned by two or more banks. The situation clearly is unaffected by 
section 2(b) of the Act which permits a corporation that fell within the 
definition initially to continue to function as a bank service 
corporation although subsequently only one of the banks remains as a 
stockholder in the corporation.
    (3) However, although it is not a bank service corporation, the 
corporation in question and each of the banks for which it performs bank 
services are subject to section 5 of the Bank Service Corporation Act. 
That section, which

[[Page 111]]

requires the furnishing of certain assurances to the appropriate Federal 
supervisory agency in connection with the performance of bank services 
for a bank, is applicable whether such services are performed by a bank 
service corporation or by others.
    (4) Section 4(a)(1) of the Bank Holding Company Act prohibits the 
acquisition by a bank holding company of ``direct or indirect ownership 
or control'' of shares of a nonbanking company, subject to certain 
exceptions. Section 4(c)(1) of the Act exempts from section 4(a)(1) 
shares of a company engaged ``solely in the business of furnishing 
services to or performing services for'' its bank holding company or 
subsidiary banks thereof. Assuming that the bank services performed by 
the corporation in question are ``services'' of the kinds contemplated 
by section 4(c)(1) of the Bank Holding Company Act (as would be true, 
for example, of the electronic data processing of deposit accounts), the 
holding company's ownership of the corporation's shares in the situation 
described above clearly is permissible under that section of the Act.
    (c) Bank service corporation owned by holding company subsidiaries 
and serving also other banks. (1) The other question concerns the 
applicability of the Bank Service Corporation Act and the Bank Holding 
Company Act in the case of a corporation, all the stock of which is 
owned either by a bank holding company and its subsidiary banks together 
or by the subsidiary banks alone, which is engaged in performing ``bank 
services'', as defined in section 1(b) of the Bank Service Corporation 
Act, for the subsidiary banks and for other banks, as well.
    (2) In contrast to the situation under paragraph (b) of this 
section, the corporation in this case is a ``bank service corporation'' 
within the meaning of section 1(c) of the Bank Service Corporation Act 
because of the ownership by each of the subsidiary banks of a part of 
the corporation's stock. This stock ownership is one of the important 
facts differentiating this case from the first one. Being a bank service 
corporation, the corporation in question is subject to section 3 of the 
Act concerning applications to bank service corporations by competitive 
banks for bank services, and to section 4 forbidding a bank service 
corporation from engaging in any activity other than the performance of 
bank services for banks. Section 5, mentioned previously and relating to 
``assurances'', also is applicable in this case.
    (3) The other important difference between this case and the 
situation in paragraph (b) of this section is that here the bank service 
corporation performs services for nonsubsidiary banks, as well as for 
subsidiary banks. This is permissible because section 2(a) of the Bank 
Service Corporation Act, which authorizes any two or more banks to 
invest limited amounts in a bank service corporation, removes all 
limitations and prohibitions of Federal law exclusively relating to 
banks that otherwise would prevent any such investment. From the 
legislative history of section 2(a), it is clear that section 6 of the 
Bank Holding Company Act is among the limitations and prohibitions so 
removed. But for such removal, section 6(a)(1) of that Act would make it 
unlawful for any of the subsidiary banks of the bank holding company in 
question to own stock in the bank service corporation subsidiary of the 
holding company, as the exemption in section 6(b)(1) would not apply 
because of the servicing by the bank service corporation of 
nonsubsidiary banks.
    (4) Because the bank service corporation referred to in the question 
is serving banks other than the subsidiary banks, the bank holding 
company is not exempt under section 4(c)(1) of the Bank Holding Company 
Act from the prohibition of acquisition of nonbanking interests in 
section 4(a)(1) of that Act. The bank holding company, however, is 
entitled to the benefit of the exemption in section 4(c)(4) of the Act. 
That section exempts from section 4(a) ``shares which are of the kinds 
and amounts eligible for investment by National banking associations 
under the provisions of section 5136 of the Revised Statutes''. Section 
5136 provides, in part, that: ``Except as hereinafter provided or 
otherwise permitted by law, nothing herein contained shall authorize the 
purchase by the association for its own account of any shares of stock 
of any corporation.'' As the provisions of section 2(a) of the Bank

[[Page 112]]

Service Corporation Act and its legislative history make it clear that 
shares of a bank service corporation are of a kind eligible for 
investment by national banks under section 5136, it follows that the 
direct or indirect ownership on control of such shares by a bank holding 
company are permissible within the amount limitation discussed in 
paragraph (d) of this section.
    (d) Limit on investment by bank holding company system in stock of 
bank service corporation. (1) In the situation presented by paragraph 
(c) the bank holding company clearly owns or controls, directly or 
indirectly, all of the stock of the bank service corporation. The 
remaining question, therefore, is whether the total direct and indirect 
investment of the bank holding company in the bank service corporation 
exceeds the amount permissible under the Bank Holding Company Act.
    (2) The effect of sections 4(a)(1) and 4(c)(4) of the Bank Holding 
Company Act is to limit the amount of shares of a bank service 
corporation that a bank holding company may own or control, directly or 
indirectly, to the amount eligible for investment by a national bank, as 
previously indicated. Under section 2(a) of the Bank Service Corporation 
Act, the amount of shares of a bank service corporation eligible for 
investment by a national bank may not exceed ``10 per centum [of the 
bank's] * * * paid-in and unimpaired capital and unimpaired surplus''.
    (3) The Board's view is that this aspect of the matter should be 
determined in accordance with the principles set forth in Sec. 225.111, 
as revised (27 FR 12671), involving the application of sections 4(a)(1) 
and 4(c)(4) of the Bank Holding Company Act in the light of section 
302(b) of the Small Business Investment Act limiting the amount eligible 
for investment by a national bank in the shares of a small business 
investment company to two percent of the bank's ``capital and surplus''.
    (4) Except for the differences in the percentage figures, the 
investment limitation in section 302(b) of the Small Business Investment 
Act is essentially the same as the investment limitation in section 2(a) 
of the Bank Service Corporation Act since, as an accounting matter and 
for the purposes under consideration, ``capital and surplus'' may be 
regarded as equivalent in meaning to ``paid-in and unimpaired capital 
and unimpaired surplus.'' Accordingly, the maximum permissible 
investment by a bank holding company system in the stock of a bank 
service corporation should be determined in accordance with the formula 
prescribed in Sec. 222.111.

[27 FR 12918, Dec. 29, 1962. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.118   Computer services for customers of subsidiary banks.

    (a) The question has been presented to the Board of Governors 
whether a wholly-owned nonbanking subsidiary (``service company'') of a 
bank holding company, which is now exempt from the prohibitions of 
section 4 of the Bank Holding Company Act of 1956 (``the Act'') because 
its sole business is the providing of services for the holding company 
and the latter's subsidiary banks, would lose its exempt status if it 
should provide data processing services for customers of the subsidiary 
banks.
    (b) The Board understood from the facts presented that the service 
company owns a computer which it utilizes to furnish data processing 
services for the subsidiary banks of its parent holding company. 
Customers of these banks have requested that the banks provide for them 
computerized billing, accounting, and financial records maintenance 
services. The banks wish to utilize the computer services of the service 
company in providing these and other services of a similar nature. It is 
proposed that, in each instance where a subsidiary bank undertakes to 
provide such services, the bank will enter into a contract directly with 
the customer and then arrange to have the service company perform the 
services for it, the bank. In no case will the service company provide 
services for anyone other than its affiliated banks. Moreover, it will 
not hold itself out as, nor will its parent corporation or affiliated 
banks represent it to be, authorized or willing to provide services for 
others.
    (c) Section 4(c)(1) of the Act permits a holding company to own 
shares in ``any company engaged solely * * * in the business of 
furnishing services to

[[Page 113]]

or performing services for such holding company and banks with respect 
to which it is a bank holding company * * *.'' The Board has ruled 
heretofore that the term ``services'' as used in section 4(c)(1) is to 
be read as relating to those services (excluding ``closely related'' 
activities of ``a financial, fiduciary, or insurance nature'' within the 
meaning of section 4(c)(6)) which a bank itself can provide for its 
customers (Sec. 225.104). A determination as to whether a particular 
service may legitimately be rendered or performed by a bank for its 
customers must be made in the light of applicable Federal or State 
statutory or regulatory provisions. In the case of a State-chartered 
bank, the laws of the State in which the bank operates, together with 
any interpretations thereunder rendered by appropriate bank authorities, 
would govern the right of the bank to provide a particular service. In 
the case of a national bank, a similar determination would require 
reference to provisions of Federal law relating to the establishment and 
operation of national banks, as well as to pertinent rulings or 
interpretations promulgated thereunder.
    (d) Accordingly, on the assumption that all of the services to be 
performed are of the kinds that the holding company's subsidiary banks 
may render for their customers under applicable Federal or State law, 
the Board concluded that the rendition of such services by the service 
company for its affiliated banks would not adversely affect its exempt 
status under section 4(c)(1) of the Act.
    (e) In arriving at the above conclusion, the Board emphasized that 
its views were premised explicitly upon the facts presented to it, and 
particularly its understanding that banks are permitted, under 
applicable Federal or State law to provide the proposed computer 
services. The Board emphasized also that in respect to the service 
company's operations, there continues in effect the requirement under 
section 4(c)(1) that the service company engage solely in the business 
of furnishing services to or performing services for the bank holding 
company and its subsidiary banks. The Board added that any substantial 
change in the facts that had been presented might require re-examination 
of the service company's status under section 4(c)(1).

[29 FR 12361, Aug. 28, 1964. Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.121   Acquisition of Edge corporation affiliate by State member banks of registered bank holding company.

    (a) The Board has been asked whether it is permissible for the 
commercial banking affiliates of a bank holding company registered under 
the Bank Holding Company Act of 1956, as amended, to acquire and hold 
the shares of the holding company's Edge corporation subsidiary 
organized under section 25(a) of the Federal Reserve Act.
    (b) Section 9 of the Bank Holding Company Act amendments of 1966 
(Pub. L. 89-485, approved July 1, 1966) repealed section 6 of the Bank 
Holding Company Act of 1956. That rendered obsolete the Board's 
interpretation of section 6 that was published in the March 1966 Federal 
Reserve Bulletin, page 339 (Sec. 225.120). Thus, so far as Federal 
Banking law applicable to State member banks is concerned, the answer to 
the foregoing question depends on the provisions of section 23A of the 
Federal Reserve Act, as amended by the 1966 amendments to the Bank 
Holding Company Act. By its specific terms, the provisions of section 
23A do not apply to an affiliate organized under section 25(a) of the 
Federal Reserve Act.
    (c) Accordingly, the Board concludes that, except for such 
restrictions as may exist under applicable State law, it would be 
legally permissible by virtue of paragraph 20 of section 9 of the 
Federal Reserve Act for any or all of the State member banks that are 
affiliates of a registered bank holding company to acquire and hold 
shares of the Edge corporation subsidiary of the bank holding company 
within the amount limitation in the last sentence of paragraph 12 of 
section 25(a) of the Federal Reserve Act.

(12 U.S.C. 24, 248, 335, 371c, 611, 618)

[31 FR 10263, July 29, 1966. Redesignated at 36 FR 21666, Nov. 12, 1971]

[[Page 114]]



Sec. 225.122   Bank holding company ownership of mortgage companies.

    (a) The Board of Governors recently considered whether a bank 
holding may acquire, either directly or through a subsidiary, the stock 
of a so-called ``mortgage company'' that would be operated on the 
following basis: The company would solicit mortgage loans on behalf of a 
bank in the holding company system, assemble credit information, make 
property inspections and appraisals, and secure title information. The 
company would also participate in the preparation of applications for 
mortgage loans, which it would submit, together with recommendations 
with respect to action thereon, to the bank, which alone would decide 
whether to make any or all of the loans requested. The company would in 
addition solicit investors to purchase mortgage loans from the bank and 
would seek to have such investors contract with the bank for the 
servicing of such loans.
    (b) Under section 4 of the Bank Holding Company Act (12 U.S.C. 
1843), a bank holding company is generally prohibited from acquiring 
``direct or indirect ownership'' of stock of nonbanking corporations. 
The two exceptions principally involved in the question presented are 
with respect to (1) stock that is eligible for investment by a national 
bank (section 4(c)(5) of the Act) and (2) shares of a company 
``furnishing services to or performing services for such bank holding 
company or its banking subsidiaries'' (section 4(c)(1)(C) of the Act).
    (c) The Board has previously indicated its view that a national bank 
is forbidden by the so-called ``stock-purchase prohibition'' of 
paragraph ``Seventh'' of section 5136 of the Revised Statutes (12 U.S.C. 
24) to purchase ``for its own account * * * any shares of stock of any 
corporation'' except (1) to the extent permitted by specific provisions 
of Federal law or (2) as comprised within the concept of ``such 
incidental powers as shall be necessary to carry on the business of 
banking'' referred to in the first sentence of said paragraph 
``Seventh''. There is no specific statutory provision authorizing a 
national bank to purchase stock in a mortgage company, and in the 
Board's view such purchase may not properly be regarded as authorized 
under the ``incidental powers'' clause. (See 1966 Federal Reserve 
Bulletin 1151; 12 CFR 208.119.) Accordingly, a bank holding company may 
not acquire stock in a mortgage company on the basis of the section 
4(c)(5) exemption.
    (d) However, the Board does not believe that such conclusion 
prejudices consideration of the question whether such a company is 
within the section 4(c)(1)(C) ``servicing exemption''. The basic purpose 
of section 4 of the Act is to confine a bank holding company's 
activities to the management and control of banks. In determining 
whether an activity in which a bank could itself engage is within the 
servicing exemption, the question is simply whether such activity may 
appropriately be considered as ``furnishing services to or performing 
services for'' a bank.
    (e) As indicated in the Board's interpretation published in the 1958 
Federal Reserve Bulletin at page 431 (12 CFR 225.104), the legislative 
history of the servicing exemption indicates that it includes the 
following activities: ``auditing, appraising, investment counseling'' 
and ``advertising, public relations, developing new business, 
organization, operations, preparing tax returns, and personnel''. The 
legislative history further indicates that some other activities also 
are within the scope of the exemption. However, the types of servicing 
permitted under such exemption must be distinguished from activities of 
a ``financial fiduciary, or insurance nature'', such as those that might 
be considered for possible exemption under section 4(c)(8) of the Act.
    (f) In considering the interrelation of these exemptions in the 
light of the purpose of the prohibition against bank holding company 
interests in nonbanking organizations, the Board has concluded that the 
appropriate test for determining whether a mortgage company may be 
considered as within the servicing exemption is whether the company will 
perform as principal any banking activities--such as receiving deposits, 
paying checks, extending credit, conducting a trust department, and the 
like. In other words, if the mortgage company is to act merely as an 
adjunct to a bank for the purpose of

[[Page 115]]

facilitating the banks operations, the company may appropriately be 
considered as within the scope of the servicing exemption.1
---------------------------------------------------------------------------

    1Insofar as the 1958 interpretation referred to above suggested that 
the branch banking laws are an appropriate general test for determining 
the scope of the servicing exemption, such interpretation is hereby 
modified. In view of the different purposes to be served by the branch 
banking laws and by section 4 of the Bank Holding Company Act, the Board 
has concluded that basing determinations under the latter solely on the 
basis of determinations under the former is inappropriate.
---------------------------------------------------------------------------

    (g) On this basis the Board concluded that, insofar as the Bank 
Holding Company Act is concerned, a bank holding company may acquire, 
either directly or through a subsidiary, the stock of a mortgage company 
whose functions are as described in the question presented. On the other 
hand, in the Board's view, a bank holding company may not acquire, on 
the basis of the servicing exemption, a mortgage company whose functions 
include such activities as extending credit for its own account, 
arranging interim financing, entering into mortgage service contracts on 
a fee basis, or otherwise performing functions other than solely on 
behalf of a bank.

(12 U.S.C. 248)

[32 FR 15004, Oct. 3, 1967, as amended at 35 FR 19662, Dec. 29, 1970. 
Redesignated at 36 FR 21666, Nov. 12, 1971]



Sec. 225.123   Activities closely related to banking.

    (a) Effective June 15, 1971, the Board of Governors has amended 
Sec. 225.4(a) of Regulation Y to implement its regulatory authority 
under section 4(c)(8) of the Bank Holding Company Act. In some respects 
activities determined by the Board to be closely related to banking are 
described in general terms that will require interpretation from time to 
time. The Board's views on some questions that have arisen are set forth 
below.
    (b) Section 225.4(a) states that a company whose ownership by a bank 
holding company is authorized on the basis of that section may engage 
solely in specified activities. That limitation refers only to 
activities the authority for which depends on section 4(c)(8) of the 
Act. It does not prevent a holding company from establishing one 
subsidiary to engage, for example, in activities specified in 
Sec. 225.4(a) and also in activities that fall within the scope of 
section 4(c)(1)(C) of the Act--the ``servicing'' exemption.
    (c) The amendments to Sec. 225.4(a) do not apply to restrict the 
activities of a company previously approved by the Board on the basis of 
section 4(c)(8) of the Act. Activities of a company authorized on the 
basis of section 4(c)(8) either before the 1970 Amendments or pursuant 
to the amended Sec. 225.4(a) may be shifted in a corporate 
reorganization to another company within the holding company system 
without complying with the procedures of Sec. 225.4(b), as long as all 
the activities of such company are permissible under one of the 
exemptions in section 4 of the Act.
    (d) Under the procedures in Sec. 225.4(a)(c), a holding company that 
wishes to change the location at which it engages in activities 
authorized pursuant to Sec. 225.4(a) must publish notice in a newspaper 
of general circulation in the community to be served. The Board does not 
regard minor changes in location as within the coverage of that 
requirement. A move from one site to another within a 1-mile radius 
would constitute such a minor change if the new site is in the same 
State.
    (e) Data processing. In providing packaged data processing and 
transmission services for banking, financial and economic data for 
installation on the premises of the customer, as authorized by 
Sec. 225.4(a)(8)(ii), a bank holding company should limit its activities 
to providing facilities that perform banking functions, such as check 
collection, or other similar functions for customers that are depository 
or other similar institutions, such as mortgage companies. In addition, 
the Board regards the following as incidental activities necessary to 
carry on the permissible activities in this area:
    (1) Providing excess capacity, not limited to the processing or 
transmission of banking, financial or economic data on data processing 
or transmission equipment or facilities used in connection with 
permissible data processing and data transmission activities, where:

[[Page 116]]

    (A) Equipment is not purchased solely for the purpose of creating 
excess capacity;
    (B) Hardware is not offered in connection therewith; and
    (C) Facilities for the use of the excess capacity do not include the 
provision of any software, other than systems software (including 
language), network communications support, and the operating personnel 
and documentation necessary for the maintenance and use of these 
facilities.
    (2) Providing by-products of permissible data processing and data 
transmission activities, where not designed, or appreciably enhanced, 
for the purpose of marketability.
    (3) Furnishing any data processing service upon request of a 
customer if such data processing service is not otherwise reasonably 
available in the relevant market area; and

In order to eliminate or reduce to an insignificant degree any 
possibility of unfair competition where services, facilities, by-
products or excess capacity are provided by a bank holding company's 
nonbank subsidiary or related entity, the entity providing the services, 
facilities, by-products and/or excess capacity should have separate 
books and financial statements, and should provide these books and 
statements to any new or renewal customer requesting financial data. 
Consolidated or other financial statements of the bank holding company 
should not be provided unless specifically requested by the customer.

(Interprets and applies 12 U.S.C. 1843 (c)(8))

[36 FR 10778, June 3, 1971, as amended at 36 FR 11806, June 19, 1971. 
Redesignated at 36 FR 21666, Nov. 12, 1971 and amended at 40 FR 13477, 
Mar. 27, 1975; 47 FR 37372, Aug. 26, 1982; 52 FR 45161, Nov. 25, 1987]



Sec. 225.124   Foreign bank holding companies.

    (a) Effective December 1, 1971, the Board of Governors has added a 
new Sec. 225.4(g) to Regulation Y implementing its authority under 
section 4(c)(9) of the Bank Holding Company Act. The Board's views on 
some questions that have arisen in connection with the meaning of terms 
used in Sec. 225.4(g) are set forth in paragraphs (b) through (g) of 
this section.
    (b) The term ``activities'' refers to nonbanking activities and does 
not include the banking activities that foreign banks conduct in the 
United States through branches or agencies licensed under the banking 
laws of any State of the United States or the District of Columbia.
    (c) A company (including a bank holding company) will not be deemed 
to be engaged in ``activities'' in the United States merely because it 
exports (or imports) products to (or from) the United States, or 
furnishes services or finances goods or services in the United States, 
from locations outside the United States. A company is engaged in 
``activities'' in the United States if it owns, leases, maintains, 
operates, or controls any of the following types of facilities in the 
United States:
    (1) A factory,
    (2) A wholesale distributor or purchasing agency,
    (3) A distribution center,
    (4) A retail sales or service outlet,
    (5) A network of franchised dealers,
    (6) A financing agency, or
    (7) Similar facility for the manufacture, distribution, purchasing, 
furnishing, or financing of goods or services locally in the United 
States.

A company will not be considered to be engaged in ``activities'' in the 
United States if its products are sold to independent importers, or are 
distributed through independent warehouses, that are not controlled or 
franchised by it.
    (d) In the Board's opinion, section 4 (a)(1) of the Bank Holding 
Company Act applies to ownership or control of shares of stock as an 
investment and does not apply to ownership or control of shares of stock 
in the capacity of an underwriter or dealer in securities. Underwriting 
or dealing in shares of stock are nonbanking activities prohibited to 
bank holding companies by section 4(a)(2) of the Act, unless otherwise 
exempted. Under Sec. 225.4(g) of Regulation Y, foreign bank holding 
companies are exempt from the prohibitions of section 4 of the Act with 
respect to their activities outside the United States; thus foreign bank 
holding companies may underwrite or deal in shares of stock (including 
shares of United States issuers) to be distributed outside the United 
States, provided that

[[Page 117]]

shares so acquired are disposed of within a reasonable time.
    (e) A foreign bank holding company does not ``indirectly'' own 
voting shares by reason of the ownership or control of such voting 
shares by any company in which it has a noncontrolling interest. A 
foreign bank holding company may, however, ``indirectly'' control such 
voting shares if its noncontrolling interest in such company is 
accompanied by other arrangements that, in the Board's judgment, result 
in control of such shares by the bank holding company. The Board has 
made one exception to this general approach. A foreign bank holding 
company will be considered to indirectly own or control voting shares of 
a bank if that bank holding company acquires more than 5 percent of any 
class of voting shares of another bank holding company. A bank holding 
company may make such an acquisition only with prior approval of the 
Board.
    (f) A company is ``indirectly'' engaged in activities in the United 
States if any of its subsidiaries (whether or not incorporated under the 
laws of this country) is engaged in such activities. A company is not 
``indirectly'' engaged in activities in the United States by reason of a 
noncontrolling interest in a company engaged in such activities.
    (g) Under the foregoing rules, a foreign bank holding company may 
have a noncontrolling interest in a foreign company that has a U.S. 
subsidiary (but is not engaged in the securities business in the United 
States) if more than half of the foreign company's consolidated assets 
and revenues are located and derived outside the United States. For the 
purpose of such determination, the assets and revenues of the United 
States subsidiary would be counted among the consolidated assets and 
revenues of the foreign company to the extent required or permitted by 
generally accepted accounting principles in the United States. The 
foreign bank holding company would not, however, be permitted to 
``indirectly'' control voting shares of the said U.S. subsidiary, as 
might be the case if there are other arrangements accompanying its 
noncontrolling interest in the foreign parent company that, in the 
Board's judgment, result in control of such shares by the bank holding 
company.

(Interprets and applies 12 U.S.C. 1843 (a) (1), (2), and (c)(9))

[36 FR 21808, Nov. 16, 1971]



Sec. 225.125   Investment adviser activities.

    (a) Effective February 1, 1972, the Board of Governors amended 
Sec. 225.4(a) of Regulation Y to add ``serving as investment adviser, as 
defined in section 2(a)(20) of the Investment Company Act of 1940, to an 
investment company registered under that Act'' to the list of activities 
it has determined to be so closely related to banking or managing or 
controlling banks as to be a proper incident thereto. During the course 
of the Board's consideration of this amendment several questions arose 
as to the scope of such activity, particularly in view of certain 
restrictions imposed by sections 16, 20, 21, and 32 of the Banking Act 
of 1933 (12 U.S.C. 24, 377, 378, 78) (sometimes referred to hereinafter 
as the ``Glass-Steagall Act provisions'') and the U.S. Supreme Court's 
decision in Investment Company Institute v. Camp, 401 U.S. 617 (1971). 
The Board's views with respect to some of these questions are set forth 
below.
    (b) It is clear from the legislative history of the Bank Holding 
Company Act Amendments of 1970 (84 Stat. 1760) that the Glass-Steagall 
Act provisions were not intended to be affected thereby. Accordingly, 
the Board regards the Glass-Steagall Act provisions and the Board's 
prior interpretations thereof as applicable to a holding company's 
activities as an investment adviser. Consistently with the spirit and 
purpose of the Glass-Steagall Act, this interpretation applies to all 
bank holding companies registered under the Bank Holding Company Act 
irrespective of whether they have subsidiaries that are member banks.
    (c) Under Sec. 225.4(a)(5), as amended, bank holding companies 
(which term, as used herein, includes both their bank and nonbank 
subsidiaries) may, in accordance with the provisions of Sec. 225.4 (b), 
act as investment advisers to various types of investment companies, 
such as ``open-end'' investment companies (commonly referred to as 
``mutual funds'') and ``closed-end'' investment

[[Page 118]]

companies. Briefly, a mutual fund is an investment company which, 
typically, is continuously engaged in the issuance of its shares and 
stands ready at any time to redeem the securities as to which it is the 
issuer; a closed-end investment company typically does not issue shares 
after its initial organization except at infrequent intervals and does 
not stand ready to redeem its shares.
    (d) The Board intends that a bank holding company may exercise all 
functions that are permitted to be exercised by an ``investment 
adviser'' under the Investment Company Act of 1940, except to the extent 
limited by the Glass-Steagall Act provisions, as described, in part, 
hereinafter.
    (e) The Board recognizes that presently most mutual funds are 
organized, sponsored and managed by investment advisers with which they 
are affiliated and that their securities are distributed to the public 
by such affiliated investment advisers, or subsidiaries or affiliates 
thereof. However, the Board believes that (1) The Glass-Steagall Act 
provisions do not permit a bank holding company to perform all such 
functions, and (2) It is not necessary for a bank holding company to 
perform all such functions in order to engage effectively in the 
described activity.
    (f) In the Board's opinion, the Glass-Steagall Act provisions, as 
interpreted by the U.S. Supreme Court, forbid a bank holding company to 
sponsor, organize or control a mutual fund. However, the Board does not 
believe that such restrictions apply to closed-end investment companies 
as long as such companies are not primarily or frequently engaged in the 
issuance, sale and distribution of securities. In no case, however, 
should a bank holding company act as investment adviser to an investment 
company which has a name that is similar to, or a variation of, the name 
of the holding company or any of its subsidiary banks.
    (g) In view of the potential conflicts of interests that may exist, 
a bank holding company and its bank and nonbank subsidiaries should not:
    (1) Purchase for their own account securities of any investment 
company for which the bank holding company acts as investment adviser;
    (2) Purchase in their sole discretion, any such securities in a 
fiduciary capacity (including as managing agent) unless the purchase is 
specifically authorized by the terms of the instrument creating the 
fiduciary relationship, by court order, or by the law of the 
jurisdiction under which the trust is administered;
    (3) Extend credit to any such investment company; or
    (4) Accept the securities of any such investment company as 
collateral for a loan which is for the purpose of purchasing securities 
of the investment company.
    (h) Under section 20 of the Glass-Steagall Act, a member bank is 
prohibited from being affiliated with a company that directly, or 
through a subsidiary, engages principally in the issue, flotation, 
underwriting, public sale, or distribution of securities. A bank holding 
company or its nonbank subsidiary may not engage, directly or 
indirectly, in the underwriting, public sale or distribution of 
securities of any investment company for which the holding company or 
any nonbank subsidiary provides investment advice except in compliance 
with the terms of section 20, and only after obtaining the Board's 
approval under section 4 of the Bank Holding Company Act and subject to 
the limitations and disclosures required by the Board in those cases. 
The Board has determined, however, that the conduct of securities 
brokerage activities by a bank holding company or its nonbank 
subsidiaries, when conducted individually or in combination with 
investment advisory activities, is not deemed to be the underwriting, 
public sale, or distribution of securities prohibited by the Glass-
Steagall Act, and the U.S. Supreme Court has upheld that determination. 
See Securities Industry Ass'n v. Board of Governors, 468 U.S. 207 
(1984); see also Securities Industry Ass'n v. Board of Governors, 821 
F.2d 810 (D.C. Cir. 1987), cert. denied, 484 U.S. 1005 (1988). 
Accordingly, the Board believes that a bank holding company or any of 
its nonbank subsidiaries that has been authorized by the Board under the 
Bank Holding Company Act to conduct securities brokerage activities 
(either separately or in combination with investment advisory 
activities) may

[[Page 119]]

act as agent, upon the order and for the account of customers of the 
holding company or its nonbank subsidiary, to purchase or sell shares of 
an investment company for which the bank holding company or any of its 
subsidiaries acts as an investment adviser. In addition, a bank holding 
company or any of its nonbank subsidiaries that has been authorized by 
the Board under the Bank Holding Company Act to provide investment 
advice to third parties generally (either separately or in combination 
with securities brokerage services) may provide investment advice to 
customers with respect to the purchase or sale of shares of an 
investment company for which the holding company or any of its 
subsidiaries acts as an investment adviser. In the event that a bank 
holding company or any of its nonbank subsidiaries provides brokerage or 
investment advisory services (either separately or in combination) to 
customers in the situations described above, at the time the service is 
provided the bank holding company should instruct its officers and 
employees to caution customers to read the prospectus of the investment 
company before investing and must advise customers in writing that the 
investment company's shares are not insured by the Federal Deposit 
Insurance Corporation, and are not deposits, obligations of, or endorsed 
or guaranteed in any way by, any bank, unless that happens to be the 
case. The holding company or nonbank subsidiary must also disclose in 
writing to the customer the role of the company or affiliate as adviser 
to the investment company. These disclosures may be made orally so long 
as written disclosure is provided to the customer immediately 
thereafter. To the extent that a bank owned by a bank holding company 
engages in providing advisory or brokerage services to bank customers in 
connection with an investment company advised by the bank holding 
company or a nonbank affiliate, but is not required by the bank's 
primary regulator to make disclosures comparable to the disclosures 
required to be made by bank holding companies providing such services, 
the bank holding company should require its subsidiary bank to make the 
disclosures required in this paragraph to be made by a bank holding 
company that provides such advisory or brokerage services.
    (i) Acting in such capacities as registrar, transfer agent, or 
custodian for an investment company is not a selling activity and is 
permitted under Sec. 225.4(a)(4) of Regulation Y. However, in view of 
potential conflicts of interests, a bank holding company which acts both 
as custodian and investment adviser for an investment company should 
exercise care to maintain at a minimal level demand deposit accounts of 
the investment company which are placed with a bank affiliate and should 
not invest cash funds of the investment company in time deposit accounts 
(including certificates of deposit) of any bank affiliate.

[37 FR 1464, Jan. 29, 1972, as amended at Reg. Y, 57 FR 30391, July 9, 
1992; 61 FR 45875, Aug. 30, 1996]



Sec. 225.126   Activities not closely related to banking.

    Pursuant to section 4(c)(8) of the Bank Holding Company Act and 
Sec. 225.4(a) of Regulation Y, the Board of Governors has determined 
that the following activities are not so closely related to banking or 
managing or controlling banks as to be a proper incident thereto:
    (a) Insurance premium funding--that is, the combined sale of mutual 
funds and insurance.
    (b) Underwriting life insurance that is not sold in connection with 
a credit transaction by a bank holding company, or a subsidiary thereof.
    (c) Real estate brokerage (see 1972 Fed. Res. Bulletin 428).
    (d) Land development (see 1972 Fed. Res. Bulletin 429).
    (e) Real estate syndication.
    (f) Management consulting (see 1972 Fed. Res. Bulletin 571).
    (g) Property management (see 1972 Fed. Res. Bulletin 652).

[Reg. Y, 37 FR 20329, Sept. 29, 1972; 37 FR 21938, Oct. 17, 1972, as 
amended at 54 FR 37302, Sept. 8, 1989]

[[Page 120]]



Sec. 225.127   Investment in corporations or projects designed primarily to promote community welfare.

    (a) Under Sec. 225.25(b)(6) of Regulation Y, a bank holding company 
may, in accordance with the provisions of Sec. 225.23, engage in 
``making equity and debt investments in corporations or projects 
designed primarily to promote community welfare, such as the economic 
rehabilitation and development of low-income areas.'' The Board included 
that activity among those the Board has determined to be so closely 
related to banking or managing or controlling banks as be a proper 
incident thereto, in order to permit bank holding companies to fulfill 
their civic responsibilities. As indicated hereinafter in this 
interpretation, the Board intends Sec. 225.25(b)(6) to enable bank 
holding companies to take an active role in the quest for solutions to 
the Nation's social problems. Although the interpretation primarily 
focuses on low- and moderate-income housing, it is not intended to limit 
projects under Sec. 225.25(b)(6) to that area. Other investments 
primarily designed to promote community welfare are considered 
permissible, but have not been defined in order to provide bank holding 
companies flexibility in approaching community problems. For example, 
bank holding companies may utilize this flexibility to provide new and 
creative approaches to the promotion of employment opportunities for 
low-income persons. Bank holding companies possess a unique combination 
of financial and managerial resources making them particularly suited 
for a meaningful and substantial role in remedying our social ills. 
Section 225.25(b)(6) is intended to provide an opportunity for them to 
assume such a role.
    (b) Under the authority of Sec. 225.25(b)(6), a bank holding company 
may invest in community development corporations established pursuant to 
Federal or State law. A bank holding company may also participate in 
other civic projects, such as a municipal parking facility sponsored by 
a local civic organization as a means to promote greater public use of 
the community's facilities.
    (c) Within the category of permissible investments under 
Sec. 225.25(b)(6) are investments in projects to construct or 
rehabilitate multifamily low- or moderate-income housing with respect to 
which a mortgage is insured under section 221(d)(3), 221(d)(4), or 236 
of the National Housing Act (12 U.S.C. 1701) and investments in projects 
to construct or rehabilitate low- or moderate-income housing which is 
financed or assisted by direct loan, tax abatement, or insurance under 
provisions of State or local law, similar to the aforementioned Federal 
programs, provided that, with respect to all such projects the owner is, 
by statute, regulation, or regulatory authority, limited as to the rate 
of return on his investment in the project, as to rentals or occupancy 
charges for units in the project, and in such other respects as would be 
a ``limited dividend corporation'' (as defined by the Secretary of 
Housing and Urban Development).
    (d) Investments in other projects that may be considered to be 
designed primarily to promote community welfare include but are not 
limited to: (1) Projects for the construction or rehabilitation of 
housing for the benefit of persons of low- or moderate-income, (2) 
projects for the construction or rehabilitation of ancillary local 
commercial facilities necessary to provide goods or services principally 
to persons residing in low- or moderate-income housing, and (3) projects 
designed explicitly to create improved job opportunities for low- or 
moderate-income groups (for example, minority equity investments, on a 
temporary basis, in small or medium-sized locally-controlled businesses 
in low-income urban or other economically depressed areas). In the case 
of de novo projects, the copy of the notice with respect to such other 
projects which is to be furnished to Reserve Banks in accordance with 
the provisions of Sec. 225.23 should be accompanied by a memorandum 
which demonstrates that such projects meet the objectives of 
Sec. 225.25(b)(6).
    (e) Investments in corporations or projects organized to build or 
rehabilitate high-income housing, or commercial, office, or industrial 
facilities that are not designed explicitly to create improved job 
opportunities for low-income persons shall be presumed not to

[[Page 121]]

be designed primarily to promote community welfare, unless there is 
substantial evidence to the contrary, even though to some extent the 
investment may benefit the community.
    (f) Section 6 of the Depository Institutions Disaster Relief Act of 
1992 permits state member banks (12 U.S.C. 338a) and national banks (12 
U.S.C. 24 (Eleventh)) to invest in the stock of community development 
corporations that are designed primarily to promote the public welfare 
of low- and moderate-income communities and persons in the areas of 
housing, services and employment. The Board and the Office of the 
Comptroller of the Currency have adopted rules that permit state member 
banks and national banks to make certain investments without prior 
approval. The Board believes that these rules are consistent with the 
Board's interpretation of, and decisions regarding, the scope of 
community welfare activities permissible for bank holding companies. 
Accordingly, approval received by a bank holding company to conduct 
activities designed to promote the community welfare under section 
4(c)(8) of the Bank Holding Company Act (12 U.S.C. 1843(c)(8)) and 
Sec. 225.25(b)(6) of the Board's Regulation Y (12 CFR 225.25(b)(6)) 
includes approval to engage, either directly or through a subsidiary, in 
the following activities, up to five percent of the bank holding 
company's total consolidated capital stock and surplus, without 
additional Board or Reserve Bank approval:
    (1) Invest in and provide financing to a corporation or project or 
class of corporations or projects that the Board previously has 
determined is a public welfare project pursuant to paragraph 23 of 
section 9 of the Federal Reserve Act (12 U.S.C. 338a);
    (2) Invest in and provide financing to a corporation or project that 
the Office of the Comptroller of the Currency previously has determined, 
by order or regulation, is a public welfare investment pursuant to 
section 5136 of the Revised Statutes (12 U.S.C. 24 (Eleventh));
    (3) Invest in and provide financing to a community development 
financial institution pursuant to section 103(5) of the Community 
Development Banking and Financial Institutions Act of 1994 (12 U.S.C. 
4702(5));
    (4) Invest in, provide financing to, develop, rehabilitate, manage, 
sell, and rent residential property if a majority of the units will be 
occupied by low- and moderate-income persons or if the property is a 
``qualified low-income building'' as defined in section 42(c)(2) of the 
Internal Revenue Code (26 U.S.C. 42(c)(2));
    (5) Invest in, provide financing to, develop, rehabilitate, manage, 
sell, and rent nonresidential real property or other assets located in a 
low- or moderate-income area provided the property is used primarily for 
low- and moderate-income persons;
    (6) Invest in and provide financing to one or more small businesses 
located in a low- or moderate-income area to stimulate economic 
development;
    (7) Invest in, provide financing to, develop, and otherwise assist 
job training or placement facilities or programs designed primarily for 
low- and moderate-income persons;
    (8) Invest in and provide financing to an entity located in a low- 
or moderate-income area if that entity creates long-term employment 
opportunities, a majority of which (based on full time equivalent 
positions) will be held by low- and moderate-income persons; and
    (9) Provide technical assistance, credit counseling, research, and 
program development assistance to low- and moderate-income persons, 
small businesses, or nonprofit corporations to help achieve community 
development.
    (g) For purposes of paragraph (f) of this section, low- and 
moderate-income persons or areas means individuals and communities whose 
incomes do not exceed 80 percent of the median income of the area 
involved, as determined by the U.S. Department of Housing and Urban 
Development. Small businesses are businesses that are smaller than the 
maximum size eligibility standards established by the Small Business 
Administration (SBA) for the Small Business Investment Company and 
Development Company Programs or the SBA section 7A loan program; and 
specifically include those businesses that are

[[Page 122]]

majority-owned by members of minority groups or by women.
    (h) For purposes of paragraph (f) of this section, five percent of 
the total consolidated capital stock and surplus of a bank holding 
company includes its total investment in projects described in paragraph 
(f) of this section, when aggregated with similar types of investments 
made by depository institutions controlled by the bank holding company. 
The term total consolidated capital stock and surplus of the bank 
holding company means total equity capital and the allowance for loan 
and lease losses. For bank holding companies that file the FR Y-9C 
(Consolidated Financial Statements for Bank Holding Companies), these 
items are readily ascertained from Schedule HC--Consolidated Balance 
Sheet (total equity capital (line 27h) and allowance for loan and lease 
losses (line 4b)). For bank holding companies filing the FR Y-SP (Parent 
Company Only Financial Statements for Small Bank Holding Companies), an 
approximation of these items is ascertained from the Balance Sheet 
(total equity capital (line 16e)) and allowance for loan and lease 
losses (line 3b)) and from the Report of Condition for Insured Banks 
(Schedule RC--Balance Sheet (line 4b)).

[37 FR 11316, June 7, 1972; 37 FR 13336, July 7, 1972, as amended at 
Reg. Y, 59 FR 63713, Dec. 9, 1994]



Sec. 225.129   Activities closely related to banking.

    Courier activities. The Board's amendment of Sec. 225.4(a), which 
adds courier services to the list of closely related activities is 
intended to permit holding companies to transport time critical 
materials of limited intrinsic value of the types utilized by banks and 
bank-related firms in performing their business activities. Such 
transportation activities are of particular importance in the check 
clearing process of the banking system, but are also important to the 
performance of other activities, including the processing of 
financially-related economic data. The authority is not intended to 
permit holding companies to engage generally in the provision of 
transportation services.
    During the course of the Board's proceedings pertaining to courier 
services, objections were made that courier activities were not a proper 
incident to banking because of the possibility that holding companies 
would or had engaged in unfair competitive practices. The Board believes 
that adherence to the following principles will eliminate or reduce to 
an insignificant degree any possibility of unfair competition:
    a. A holding company courier subsidiary established under section 
4(c)(8) should be a separate, independent corporate entity, not merely a 
servicing arm of a bank.
    b. As such, the subsidiary should exist as a separate, profit-
oriented operation and should not be subsidized by the holding company 
system.
    c. Services performed should be explicitly priced, and shall not be 
paid for indirectly, for example, on the basis of deposits maintained at 
or loan arrangements with affiliated banks.

Accordingly, entry of holding companies into courier activities on the 
basis of section 4(c)(8) will be conditioned as follows:
    1. The courier subsidiary shall perform services on an explicit fee 
basis and shall be structured as an individual profit center designed to 
be operated on a profitable basis. The Board may regard operating losses 
sustained over an extended period as being inconsistent with continued 
authority to engage in courier activities.
    2. Courier services performed on behalf of an affiliate's customer 
(such as the carriage of incoming cash letters) shall be paid for by the 
customer. Such payments shall not be made indirectly, for example, on 
the basis of imputed earnings on deposits maintained at or of loan 
arrangements with subsidiaries of the holding company. Concern has also 
been expressed that bank-affiliated courier services will be utilized to 
gain a competitive advantage over firms competing with other holding 
company affiliates. To reduce the possibility that courier affiliates 
might be so employed, the Board will impose the following third 
condition:
    3. The courier subsidiary shall, when requested by any bank or any 
data processing firm providing financially-related data processing 
services which firm competes with a banking or data processing

[[Page 123]]

subsidiary of Applicant, furnish comparable service at comparable rates, 
unless compliance with such request would be beyond the courier 
subsidiary's practical capacity. In this regard, the courier subsidiary 
should make known to the public its minimum rate schedule for services 
and its general pricing policies thereto. The courier subsidiary is also 
expected to maintain for a reasonable period of time (not less than two 
years) each request denied with the reasons for such denial.

[38 FR 32126, Nov. 21, 1973, as amended at 40 FR 36309, Aug. 20, 1975]



Sec. 225.130   Issuance and sale of short-term debt obligations by bank holding companies.

    For text of interpretation, see Sec. 250.221 of this chapter.

[38 FR 35231, Dec. 26, 1973]



Sec. 225.131   Activities closely related to banking.

    (a) Bank management consulting advice. The Board's amendment of 
Sec. 225.4(a), which adds bank management consulting advice to the list 
of closely related activities, described in general terms the nature of 
such activity. This interpretation is intended to explain in greater 
detail certain of the terms in the amendment.
    (b) It is expected that bank management consulting advice would 
include, but not be limited to, advice concerning: Bank operations, 
systems and procedures; computer operations and mechanization; 
implementation of electronic funds transfer systems; site planning and 
evaluation; bank mergers and the establishment of new branches; 
operation and management of a trust department; international banking; 
foreign exchange transactions; purchasing policies and practices; cost 
analysis, capital adequacy and planning; auditing; accounting 
procedures; tax planning; investment advice (as authorized in 
Sec. 225.4(a)(5)); credit policies and administration, including credit 
documentation, evaluation, and debt collection; product development, 
including specialized lending provisions; marketing operations, 
including research, market development and advertising programs; 
personnel operations, including recruiting, training, evaluation and 
compensation; and security measures and procedures.
    (c) In permitting bank holding companies to provide management 
consulting advice to nonaffiliated ``banks'', the Board intends such 
advice to be given only to an institution that both accepts deposits 
that the depositor has a legal right to withdraw on demand and engages 
in the business of making commercial loans. It is also intended that 
such management consulting advice may be provided to the ``operations 
subsidiaries'' of a bank, since such subsidiaries perform functions that 
a bank is empowered to perform directly at locations at which the bank 
is authorized to engage in business (Sec. 250.141 of this chapter).
    (d) Although a bank holding company providing management consulting 
advice is prohibited by the regulation from owning or controlling, 
directly or indirectly, any equity securities in a client bank, this 
limitation does not apply to shares of a client bank acquired, directly 
or indirectly, as a result of a default on a debt previously contracted. 
This limitation is also inapplicable to shares of a client bank acquired 
by a bank holding company, directly or indirectly, in a fiduciary 
capacity: Provided, That the bank holding company or its subsidiary does 
not have sole discretionary authority to vote such shares or shares held 
with sole voting rights constitute not more than five percent of the 
outstanding voting shares of a client bank.

[39 FR 8318, Mar. 5, 1974; 39 FR 21120, June 19, 1974]



Sec. 225.132   Acquisition of assets.

    (a) From time to time questions have arisen as to whether and under 
what circumstances a bank holding company engaged in nonbank activities, 
directly or indirectly through a subsidiary, pursuant to section 4(c)(8) 
of the Bank Holding Company Act of 1956, as amended (12 U.S.C. 
1843(c)(3)), may acquire the assets and employees of another company, 
without first obtaining Board approval pursuant to section 4(c) (8) and 
the Board's Regulation Y (12 CFR 225.4(b)).
    (b) In determining whether Board approval is required in connection 
with

[[Page 124]]

the acquisition of assets, it is necessary to determine (a) whether the 
acquisition is made in the ordinary course of business1 or (b) 
whether it constitutes the acquisition, in whole or in part, of a going 
concern.2 
---------------------------------------------------------------------------

    1Section 225.4(c)(3) of the Board's Regulation Y (12 CFR 
225.4(c)(3)) generally prohibits a bank holding company or its 
subsidiary engaged in activities pursuant to authority of section 
4(c)(8) of the Act from being a party to any merger ``or acquisition of 
assets other than in the ordinary course of business'' without prior 
Board approval.
    2In accordance with the provisions of section 4(c)(8) of the 
Act and Sec. 225.4(b) of Regulation Y, the acquisition of a going 
concern requires prior Board approval.
---------------------------------------------------------------------------

    (c) The following examples illustrate transactions where prior Board 
approval will generally be required:
    (1) The transaction involves the acquisition of all or substantially 
all of the assets of a company, or a subsidiary, division, department or 
office thereof.
    (2) The transaction involves the acquisition of less than 
``substantially all'' of the assets of a company, or a subsidiary, 
division, department or office thereof, the operations of which are 
being terminated or substantially discontinued by the seller, but such 
asset acquisition is significant in relation to the size of the same 
line of nonbank activity of the holding company (e.g., consumer finance 
mortgage banking, data processing). For purposes of this interpretation, 
an acquisition would generally be presumed to be significant if the book 
value of the nonbank assets being acquired exceeds 50 percent of the 
book value of the nonbank assets of the holding company or nonbank 
subsidiary comprising the same line of activity.
    (3) The transaction involves the acquisition of assets for resale 
and the sale of such assets is not a normal business activity of the 
acquiring holding company.
    (4) The transaction involves the acquisition of the assets of a 
company, or a subsidiary, division, department or office thereof, and a 
major purpose of the transaction is to hire some of the seller's 
principal employees who are expert, skilled and experienced in the 
business of the company being acquired.
    (d) In some cases it may be difficult, due to the wide variety of 
circumstances involving possible acquisition of assets, to determine 
whether such acquisitions require prior Board approval. Bank holding 
companies are encouraged to contact their local Reserve Bank for 
guidance where doubt exists as to whether such an acquisition is in the 
ordinary course of business or an acquisition, in whole or in part, of a 
going concern.

[39 FR 35128, Sept. 30, 1974, as amended at Reg. Y, 57 FR 28779, June 
29, 1992]



Sec. 225.133   Computation of amount invested in foreign corporations under general consent procedures.

    For text of this interpretation, see Sec. 211.111 of this 
subchapter.

[40 FR 43199, Sept. 19, 1975]



Sec. 225.134   Escrow arrangements involving bank stock resulting in a violation of the Bank Holding Company Act.

    (a) In connection with a recent application to become a bank holding 
company, the Board considered a situation in which shares of a bank were 
acquired and then placed in escrow by the applicant prior to the Board's 
approval of the application. The facts indicated that the applicant 
company had incurred debt for the purpose of acquiring bank shares and 
immediately after the purchase the shares were transferred to an 
unaffiliated escrow agent with instructions to retain possession of the 
shares pending Board action on the company's application to become a 
bank holding company. The escrow agreement provided that, if the 
application were approved by the Board, the escrow agent was to return 
the shares to the applicant company; and, if the application were 
denied, the escrow agent was to deliver the shares to the applicant 
company's shareholders upon their assumption of debt originally incurred 
by the applicant in the acquisition of the bank shares. In addition, the 
escrow agreement provided that, while the shares were held in escrow, 
the applicant could not exercise voting or any other ownership rights 
with respect to those shares.

[[Page 125]]

    (b) On the basis of the above facts, the Board concluded that the 
company had violated the prior approval provisions of section 3 of the 
Bank Holding Company Act (``Act'') at the time that it made the initial 
acquisition of bank shares and that, for purposes of the Act, the 
company continued to control those shares in violation of the Act. In 
view of these findings, individuals and bank holding companies should 
not enter into escrow arrangements of the type described herein, or any 
similar arrangement, without securing the prior approval of the Board, 
since such action could constitute a violation of the Act.
    (c) While the above represents the Board's conclusion with respect 
to the particular escrow arrangement involved in the proposal presented, 
the Board does not believe that the use of an escrow arrangement would 
always result in a violation of the Act. For example, it appears that a 
transaction whereby bank shares are placed in escrow pending Board 
action on an application would not involve a violation of the Act so 
long as title to such shares remains with the seller during the pendency 
of the application; there are no other indicia that the applicant 
controls the shares held in escrow; and, in the event of a Board denial 
of the application, the escrow agreement provides that the shares would 
be returned to the seller.

[41 FR 9859, Mar. 8, 1976. Correctly designated at 41 FR 12009, Mar. 23, 
1976]



Sec. 225.136  Utilization of foreign subsidiaries to sell long-term debt obligations in foreign markets and to transfer the proceeds to their United States 
          parent(s) for domestic purposes.

    For text of this interpretation, see Sec. 211.112 of this 
subchapter.

[42 FR 752, Jan. 4, 1977]



Sec. 225.137  Acquisitions of shares pursuant to section 4(c)(6) of the Bank Holding Company Act.

    (a) The Board has received a request for an interpretation of 
section 4(c)(6) of the Bank Holding Company Act (``Act'')1 in 
connection with a proposal under which a number of bank holding 
companies would purchase interests in an insurance company to be formed 
for the purpose of underwriting or reinsuring credit life and credit 
accident and health insurance sold in connection with extensions of 
credit by the stockholder bank holding companies and their affiliates.
---------------------------------------------------------------------------

    1 It should be noted that every Board Order granting approval 
under section 4(c)(8) of the Act contains the following paragraph:
    ``This determination is subject . . . to the Board's authority to 
require such modification or termination of the activities of a holding 
company or any of its subsidiaries as the Board finds necessary to 
assure compliance with the provisions and purposes of the Act and the 
Board's regulations and orders issued thereunder, or to prevent evasion 
thereof.''
    The Board believes that, even apart from this Interpretation, this 
language preserves the authority of the Board to require the revisions 
contemplated in this Interpretation.
---------------------------------------------------------------------------

    (b) Each participating holding company would own no more than 5 
percent of the outstanding voting shares of the company. However, the 
investment of each holding company would be represented by a separate 
class of voting security, so that each stockholder would own 100 percent 
of its respective class. The participating companies would execute a 
formal ``Agreement Among Stockholders'' under which each would agree to 
use its best efforts at all times to direct or recommend to customers 
and clients the placement of their life, accident and health insurance 
directly or indirectly with the company. Such credit-related insurance 
placed with the company would be identified in the records of the 
company as having been originated by the respective stockholder. A 
separate capital account would be maintained for each stockholder 
consisting of the original capital contribution increased or decreased 
from time to time by the net profit or loss resulting from the insurance 
business attributable to each stockholder. Thus, each stockholder would 
receive a return on its investment based upon the claims experience and 
profitability of the insurance business that it had itself generated. 
Dividends declared by the board of directors of the company would be 
payable

[[Page 126]]

to each stockholder only out of the earned surplus reflected in the 
respective stockholder's capital account.
    (c) It has been requested that the Board issue an interpretation 
that section 4(c)(6) of the Act provides an exemption under which 
participating bank holding companies may acquire such interests in the 
company without prior approval of the Board.
    (d) On the basis of a careful review of the documents submitted, in 
light of the purposes and provisions of the Act, the Board has concluded 
that section 4(c)(6) of the Act is inapplicable to this proposal and 
that a bank holding company must obtain the approval of the Board before 
participating in such a proposal in the manner described. The Board's 
conclusion is based upon the following considerations:
    (1) Section 2(a)(2)(A) of the Act provides that a company is deemed 
to have control over a second company if it owns or controls ``25 per 
centum or more of any class of voting securities'' of the second 
company. In the case presented, the stock interest of each participant 
would be evidenced by a different class of stock and each would 
accordingly, own 100 percent of a class of voting securities of the 
company. Thus, each of the stockholders would be deemed to ``control'' 
the company and prior Board approval would be required for each 
stockholder's acquisition of stock in the company.

The Board believes that this application of section 2(a)(2)(A) of the 
Act is particularly appropriate on the facts presented here. The company 
is, in practical effect, a conglomeration of separate business ventures 
each owned 100 percent by a stockholder the value of whose economic 
interest in the company is determined by reference to the profits and 
losses attributable to its respective class of stock. Furthermore, it is 
the Board's opinion that this application of section 2(a)(2)(A) is not 
inconsistent with section 4(c)(6). Even assuming that section (4)(c)(6) 
is intended to refer to all outstanding voting shares, and not merely 
the outstanding shares of a particular class of securities, section 
4(c)(6) must be viewed as permitting ownership of 5 percent of a 
company's voting stock only when that ownership does not constitute 
``control'' as otherwise defined in the Act. For example, it is entirely 
possible that a company could exercise a controlling influence over the 
management and policies of a second company, and thus ``control'' that 
company under the Act's definitions, even though it held less than 5 
percent of the voting stock of the second company. To view section 
4(c)(6) as an unqualified exemption for holdings of less than 5 percent 
would thus create a serious gap in the coverage of the Act.
    (2) The Board believes that section 4(c)(6) should properly be 
interpreted as creating an exemption from the general prohibitions in 
section 4 on ownership of stock in nonbank companies only for passive 
investments amounting to not more than 5 percent of a company's 
outstanding stock, and that the exemption was not intended to allow a 
group of holding companies, through concerted action, to engage in an 
activity as entrepreneurs. Section 4 of the Act, of course, prohibits 
not only owning stock in nonbank companies, but engaging in activities 
other than banking or those activities permitted by the Board under 
section 4(c)(8) as being closely related to banking. Thus, if a holding 
company may be deemed to be engaging in an activity through the medium 
of a company in which it owns less than 5 percent of the voting stock it 
may nevertheless require Board approval, despite the section 4(c)(6) 
exemption.
    (e) To accept the argument that section 4(c)(6) is an unqualified 
grant of permission to a bank holding company to own 5 percent of the 
shares of any nonbanking company irrespective of the nature or extent of 
the holding company's participation in the affairs of the nonbanking 
company would, in the Board's view, create the potential for serious and 
widespread evasion of the Act's controls over nonbanking activities. 
Such a construction would allow a group of 20 bank holding companies--or 
even a single bank holding company and one or more nonbank companies--to 
engage in entrepreneurial joint ventures in businesses prohibited to 
bank holding companies, a result the Board believes to be contrary to 
the intent of Congress.

[[Page 127]]

    (f) In this proposal, each of the participating stockholders must be 
viewed as engaging in the business of insurance underwriting. Each 
stockholder would agree to channel to the company the insurance business 
it generates, and the value of the interest of each stockholder would be 
determined by reference to the profitability of the business generated 
by that stockholder itself. There is no sharing or pooling among 
stockholders of underwriting risks assumed by the company, and profit or 
loss from investments is allocated on the basis of each bank holding 
company's allocable underwriting profit or loss. The interest of each 
stockholder is thus clearly that of an entrepreneur rather than that of 
an investor.
    (g) Accordingly, on the basis of the factual situation before the 
Board, and for the reasons summarized above, the Board has concluded 
that section 4(c)(6) of the Act cannot be interpreted to exempt the 
ownership of 5 percent of the voting stock of a company under the 
circumstances described, and that a bank holding company wishing to 
become a stockholder in a company under this proposal would be required 
to obtain the Board's approval to do so.

[42 FR 1263, Jan. 6, 1977; 42 FR 2951, Jan. 14, 1977]



Sec. 225.138  Statement of policy concerning divestitures by bank holding companies.

    (a) From time to time the Board of Governors receives requests from 
companies subject to the Bank Holding Company Act, or other laws 
administered by the Board, to extend time periods specified either by 
statute or by Board order for the divestiture of assets held or 
activities engaged in by such companies. Such divestiture requirements 
may arise in a number of ways. For example, divestiture may be ordered 
by the Board in connection with an acquisition found to have been made 
in violation of law. In other cases the divestiture may be pursuant to a 
statutory requirement imposed at the time and amendment to the Act was 
adopted, or it may be required as a result of a foreclosure upon 
collateral held by the company or a bank subsidiary in connection with a 
debt previously contracted in good faith. Certain divestiture periods 
may be extended in the discretion of the Board, but in other cases the 
Board may be without statutory authority, or may have only limited 
authority, to extend a specified divestiture period.
    (b) In the past, divestitures have taken many different forms, and 
the Board has followed a variety of procedures in enforcing divestiture 
requirements. Because divestitures may occur under widely disparate 
factual circumstances, and because such forced dispositions may have the 
potential for causing a serious adverse economic impact upon the 
divesting company, the Board believes it is important to maintain a 
large measure of flexibility in dealing with divestitures. For these 
reasons, there can be no fixed rule as to the type of divestiture that 
will be appropriate in all situations. For example, where divestiture 
has been ordered to terminate a control relationship created or 
maintained in violation of the Act, it may be necessary to impose 
conditions that will assure that the unlawful relationship has been 
fully terminated and that it will not arise in the future. In other 
circumstances, however, less stringent conditions may be appropriate.
    (1) Avoidance of delays in divestitures. Where a specific time 
period has been fixed for accomplishing divestiture, the affected 
company should endeavor and should be encouraged to complete the 
divestiture as early as possible during the specific period. There will 
generally be substantial advantages to divesting companies in taking 
steps to plan for and accomplish divestitures well before the end of the 
divestiture period. For example, delays may impair the ability of the 
company to realize full value for the divested assets, for as the end of 
the divestiture period approaches the ``forced sale'' aspect of the 
divestiture may lead potential buyers to withhold firm offers and to 
bargain for lower prices. In addition, because some prospective 
purchasers may themselves require regulatory approval to acquire the 
divested property, delay by the divesting company may--by leaving 
insufficient time to obtain

[[Page 128]]

such approvals--have the effect of narrowing the range of prospective 
purchases. Thus, delay in planning for divestiture may increase the 
likelihood that the company will seek an extension of the time for 
divestiture if difficulty is encountered in securing a purchaser, and in 
certain situations, of course, the Board may be without statutory 
authority to grant extensions.
    (2) Submissions and approval of divestiture plans. When a 
divestiture requirement is imposed, the company affected should 
generally be asked to submit a divestiture plan promptly for review and 
approval by the Reserve Bank or the Board. Such a requirement may be 
imposed pursuant to the Board's authority under section 5(b) of the Bank 
Holding Company Act to issue such orders as may be necessary to enable 
the Board to administer and carry out the purposes of the Act and 
prevent evasions thereof. A divestiture plan should be as specific as 
possible, and should indicate the manner in which divestiture will be 
accomplished--for example, by a bulk sale of the assets to a third 
party, by ``spinoff'' or distribution of shares to the shareholders of 
the divesting company, or by termination of prohibited activities. In 
addition, the plan should specify the steps the company expects to take 
in effecting the divestiture and assuring its completeness, and should 
indicate the time schedule for taking such steps. In appropriate 
circumstances, the divestiture plan should make provision for assuring 
that ``controlling influence'' relationships, such as management or 
financial interlocks, will not continue to exist.
    (3) Periodic progress reports. A company subject to a divestiture 
requirement should generally be required to submit regular periodic 
reports detailing the steps it has taken to effect divestiture. Such a 
requirement may be imposed pursuant to the Board's authority under 
section 5(b) of the Bank Holding Company Act, referred to above, as well 
as its authority under section 5(c) of the Act to require reports for 
the purpose of keeping the Board informed as to whether the Act and 
Board regulations and order thereunder are being complied with. Reports 
should set forth in detail such matters as the identities of potential 
buyers who have been approached by the company, the dates of discussions 
with potential buyers and the identities of the individuals involved in 
such discussions, the terms of any offers received, and the reasons for 
rejecting any offers. In addition, the reports should indicate whether 
the company has employed brokers, investment bankers or others to assist 
in the divestiture, or its reasons for not doing so, and should describe 
other efforts by the company to seek out possible purchasers. The 
purpose of requiring such reports is to insure that substantial and good 
faith efforts being made by the company to satisfy its divestiture 
obligations. The frequency of such reports may vary depending upon the 
nature of the divestiture and the period specified for divestiture. 
However, such reports should generally not be required less frequently 
than every three months, and may in appropriate cases be required on a 
monthly or even more frequent basis. Progress reports as well as 
divestiture plans should be afforded confidential treatment.
    (4) Extensions of divestiture periods. Certain divestiture periods--
such as December 31, 1980 deadline for divestitures required by the 1970 
Amendments to the Bank Holding Company Act--are not extendable. In such 
cases it is imperative that divestiture be accomplished in a timely 
manner. In certain other cases, the Board may have discretion to extend 
a statutorily prescribed divestiture period within specified limits. For 
example, under section 4(c)(2) of the Act the Board may extend for three 
one-year periods the two-year period in which a bank subsidiary of a 
holding company is otherwise required to divest shares acquired in 
satisfaction of a debt previously contracted in good faith. In such 
cases, however, when the permissible extensions expire the Board no 
longer has discretion to grant further extensions. In still other cases, 
where a divestiture period is prescribed by the Board, in the exercise 
of its regulatory judgment, the Board may have broader discretion to 
grant extensions. Where extensions of specified divestiture periods are 
permitted by law, extensions should not be granted except under

[[Page 129]]

compelling circumstances. Neither unfavorable market conditions, nor the 
possibility that the company may incur some loss, should alone be viewed 
as constituting such circumstances--particularly if the company has 
failed to take earlier steps to accomplish a divestiture under more 
favorable circumstances. Normally, a request for an extension will not 
be considered unless the company has established that it has made 
substantial and continued good faith efforts to accomplish the 
divestiture within the prescribed period. Furthermore, requests for 
extensions of divestiture periods must be made sufficiently in advance 
of the expiration of the prescribed period both to enable the Board to 
consider the request in an orderly manner and to enable the company to 
effect a timely divestiture in the event the request for extension is 
denied. Companies subject to divestiture requirements should be aware 
that a failure to accomplish a divestiture within the prescribed period 
may in and of itself be viewed as a separate violation of the Act.
    (5) Use of trustees. In appropriate cases a company subject to a 
divestiture requirement may be required to place the assets subject to 
divestiture with an independent trustee under instructions to accomplish 
a sale by a specified date, by public auction if necessary. Such a 
trustee may be given the responsibility for exercising the voting rights 
with respect to shares being divested. The use of such a trustee may be 
particularly appropriate where the divestiture is intended to terminate 
a control relationship established or maintained in violation of law, or 
where the divesting company has demonstrated an inability or 
unwillingness to take timely steps to effect a divestiture.
    (6) Presumptions of control. Bank holding companies contemplating a 
divestiture should be mindful of section 2(g)(3) of the Bank Holding 
Company Act, which creates a presumption of continued control over the 
transferred assets where the transferee is indebted to the transferor, 
or where certain interlocks exist, as well as Sec. 225.2 of Regulation 
Y, which sets forth certain additional control presumptions. Where one 
of these presumptions has arisen with respect to divested assets, the 
divestiture will not be considered as complete until the presumption has 
been overcome. It should be understood that the inquiry into the 
termination of control relationships is not limited by the statutory and 
regulatory presumptions of control, and that the Board may conclude that 
a control relationship still exists even though the presumptions do not 
apply.
    (7) Role of the Reserve Banks. The Reserve Banks have a 
responsibility for supervising and enforcing divestitures. Specifically, 
in coordination with Board staff they should review divestiture plans to 
assure that proposed divestitures will result in the termination of 
control relationships and will not create unsafe or unsound conditions 
in any bank or bank holding company; they should monitor periodic 
progress reports to assure that timely steps are being taken to effect 
divestitures; and they should prompt companies to take such steps when 
it appears that progress is not being made. Where Reserve Banks have 
delegated authority to extend divestiture periods, that authority should 
be exercised consistently with this policy statement.

[42 FR 10969, Feb. 25, 1977]



Sec. 225.139  Presumption of continued control under section 2(g)(3) of the Bank Holding Company Act.

    (a) Section 2(g)(3) of the Bank Holding Company Act (the ``Act'') 
establishes a statutory presumption that where certain specified 
relationships exist between a transferor and transferee of shares, the 
transferor (if it is a bank holding company, or a company that would be 
such but for the transfer) continues to own or control indirectly the 
transferred shares.1 This presumption arises by operation of law, 
as of the date of the transfer, without the need for any order or 
determination by

[[Page 130]]

the Board. Operation of the presumption may be terminated only by the 
issuance of a Board determination, after opportunity for hearing, ``that 
the transferor is not in fact capable of controlling the 
transferee.''2
---------------------------------------------------------------------------

    1The presumption arises where the transferee ``is indebted to the 
transferor, or has one or more officers, directors, trustees, or 
beneficiaries in common with or subject to control by the transferor.''
    2The Board has delegated to its General Counsel the authority 
to issue such determinations, 12 CFR 265.2(b)(1).
---------------------------------------------------------------------------

    (b) The purpose of section 2(g)(3) is to provide the Board an 
opportunity to assess the effectiveness of divestitures in certain 
situations in which there may be a risk that the divestiture will not 
result in the complete termination of a control relationship. By 
presuming control to continue as a matter of law, section 2(g)(3) 
operates to allow the effectiveness of the divestiture to be assessed 
before the divesting company is permitted to act on the assumption that 
the divestiture is complete. Thus, for example, if a holding company 
divests its banking interest under circumstances where the presumption 
of continued control arises, the divesting company must continue to 
consider itself bound by the Act until an appropriate order is entered 
by the Board dispelling the presumption. Section 2(g)(3) does not 
establish a substantive rule that invalidates transfers to which it 
applies, and in a great many cases the Board has acted favorably on 
applications to have the presumption dispelled. It merely provides a 
procedural opportunity for Board consideration of the effect of such 
transfers in advance of their being deemed effective. Whether or not the 
statutory presumption arises, the substantive test for assessing the 
effectiveness of a divestiture is the same--that is, the Board must be 
assured that all control relationships between the transferor and the 
transferred property have been terminated and will not be 
reestablished.3
---------------------------------------------------------------------------

    3It should be noted, however, that the Board will require 
termination of any interlocking management relationships between the 
divesting company and the transferee or the divested company as a 
precondition of finding that a divestiture is complete. Similarly, the 
retention of an economic interest in the divested company that would 
create an incentive for the divesting company to attempt to influence 
the management of the divested company will preclude a finding that the 
divestiture is complete. (See the Board's Order in the matter of 
``International Bank'', 1977 Federal Reserve Bulletin 1106, 1113.)
---------------------------------------------------------------------------

    (c) In the course of administering section 2(g)(3) the Board has had 
several occasions to consider the scope of that section. In addition, 
questions have been raised by and with the Board's staff as to coverage 
of the section. Accordingly, the Board believes it would be useful to 
set forth the following interpretations of section 2(g)(3):
    (1) The terms transferor and transferee, as used in section 2(g)(3), 
include parents and subsidiaries of each. Thus, for example, where a 
transferee is indebted to a subsidiary of the transferor, or where a 
specified interlocking relationship exists between the transferor or 
transferee and a subsidiary of the other (or between subsidiaries of 
each), the presumption arises. Similarly, if a parent of the transferee 
is indebted to a parent of the transferor, the presumption arises. The 
presumption of continued control also arises where an interlock or debt 
relationship is retained between the divesting company and the company 
being divested, since the divested company will be or may be viewed as a 
subsidiary of the transferee or group of transferees.
    (2) The terms officers, directors, and trustees, as used in section 
2(g)(3), include persons performing functions normally associated with 
such positions (including general partners in a partnership and limited 
partners having a right to participate in the management of the affairs 
of the partnership) as well as persons holding such positions in an 
advisory or honorary capacity. The presumption arises not only where the 
transferee or transferred company has an officer, director or trustee in 
common with the transferor, but where the transferee himself holds such 
a position with the transferor.4 It should be noted that where a

[[Page 131]]

transfer takes the form of a pro-rata distribution, or spin-off, of 
shares to a company's shareholders, officers and directors of the 
transferor company are likely to receive a portion of such shares. The 
presumption of continued control would, of course, attach to any shares 
transferred to officers and directors of the divesting company, whether 
by spinoff or outright sale. However, the presumption will be of legal 
significance--and will thus require an application under section 
2(g)(3)--only where the total number of shares subject to the 
presumption exceeds one of the applicable thresholds in the Act. For 
example, where officers and directors of a one-bank holding company 
receive in the aggregate 25 percent or more of the stock of a bank 
subsidiary being divested by the holding company, the holding company 
would be presumed to continue to control the divested bank. In such a 
case it would be necessary for the divesting company to demonstrate that 
it no longer controls either the divested bank or the officer/director 
transferees. However, if officers and directors were to receive in the 
aggregate less than 25 percent of the bank's stock (and no other shares 
were subject to the presumption), section 2(g)(3) would not have the 
legal effect of presuming continued control of the bank.5 In the 
case of a divestiture of nonbank shares, an application under section 
2(g)(3) would be required whenever officers and directors of the 
divesting company received in the aggregate more than 5 percent of the 
shares of the company being divested.
---------------------------------------------------------------------------

    4It has been suggested that the words in common with in section 
2(g)(3) evidence an intent to make the presumption applicable only where 
the transferee is a company having an interlock with the transferor. 
Such an interpretation would, in the Board's view, create an unwarranted 
gap in the coverage of section 2(g)(3). Furthermore, because the 
presumption clearly arises where the transferee is an individual who is 
indebted to the transferor such an interpretation would result in an 
illogical internal inconsistency in the statute.
    5Of course, the fact that section 2(g)(3) would not operate to 
presume continued control would not necessarily mean that control had in 
fact been terminated if control could be exercised through other means.
---------------------------------------------------------------------------

    (3) Although section 2(g)(3) refers to transfers of shares it is 
not, in the Board's view, limited to disposition of corporate stock. 
General or limited partnership interests, for example, are included 
within the term shares. Furthermore, the transfer of all or 
substantially all of the assets of a company, or the transfer of such a 
significant volume of assets that the transfer may in effect constitute 
the disposition of a separate activity of the company, is deemed by the 
Board to involve a transfer of shares of that company.
    (4) The term indebtedness giving rise to the presumption of 
continued control under section 2(g)(3) of the Act is not limited to 
debt incurred in connection with the transfer; it includes any debt 
outstanding at the time of transfer from the transferee to the 
transferor or its subsidiaries. However, the Board believes that not 
every kind of indebtedness was within the contemplation of the Congress 
when section 2(g)(3) was adopted. Routine business credit of limited 
amounts and loans for personal or household purposes are generally not 
the kinds of indebtedness that, standing alone, support a presumption 
that the creditor is able to control the debtor. Accordingly, the Board 
does not regard the presumption of section 2(g)(3) as applicable to the 
following categories of credit, provided the extensions of credit are 
not secured by the transferred property and are made in the ordinary 
course of business of the transferor (or its subsidiary) that is 
regularly engaged in the business of extending credit:
    (i) Consumer credit extended for personal or household use to an 
individual transferee; (ii) student loans made for the education of the 
individual transferee or a spouse or child of the transferee; (iii) a 
home mortgage loan made to an individual transferee for the purchase of 
a residence for the individual's personal use and secured by the 
residence; and (iv) loans made to companies (as defined in section 2(b) 
of the Act) in an aggregate amount not exceeding ten per cent of the 
total purchase price (or if not sold, the fair market value) of the 
transferred property. The amounts and terms of the preceding categories 
of credit should not differ substantially from similar credit extended 
in comparable circumstances to others who are not transferees. It should 
be understood that, while the statutory presumption in situations 
involving these categories of credit may not apply, the Board is not 
precluded in any case from examining the facts of a particular transfer 
and finding that the divestiture of control was ineffective based on the 
facts of record.

[[Page 132]]

    (d) Section 2(g)(3) provides that a Board determination that a 
transferor is not in fact capable of controlling a transferee shall be 
made after opportunity for hearing. It has been the Board's routine 
practice since 1966 to publish notice in the Federal Register of 
applications filed under section 2(g)(3) and to offer interested parties 
an opportunity for a hearing. Virtually without exception no comments 
have been submitted on such applications by parties other than the 
applicant and, with the exception of one case in which the request was 
later withdrawn, no hearings have been requested in such cases. Because 
the Board believes that the hearing provision in section 2(g)(3) was 
intended as a protection for applicants who are seeking to have the 
presumption overcome by a Board order, a hearing would not be of use 
where an application is to be granted. In light of the experience 
indicating that the publication of Federal Register notice of such 
applications has not served a useful purpose, the Board has decided to 
alter its procedures in such cases. In the future, Federal Register 
notice of section 2(g)(3) applications will be published only in cases 
in which the Board's General Counsel, acting under delegated authority, 
has determined not to grant such an application and has referred the 
matter to the Board for decision.6

    6 It should be noted that in the event a third party should take 
exception to a Board order under section 2(g)(3) finding that control 
has been terminated, any rights such party might have would not be 
prejudiced by the order. If such party brought facts to the Board's 
attention indicating that control had not been terminated the Board 
would have ample authority to revoke its order and take necessary 
remedial action.
    Orders issued under section 2(g)(3) are published in the Federal 
Reserve ``Bulletin.''

---------------------------------------------------------------------------
(12 U.S.C. 1841, 1844)

[43 FR 6214, Feb. 14, 1978; 43 FR 15147, Apr. 11, 1978; 43 FR 15321, 
Apr. 12, 1978, as amended at 45 FR 8280, Feb. 7, 1980; 45 FR 11125, Feb. 
20, 1980]



Sec. 225.140  Disposition of property acquired in satisfaction of debts previously contracted.

    (a) The Board recently considered the permissibility, under section 
4 of the Bank Holding Company Act, of a subsidiary of a bank holding 
company acquiring and holding assets acquired in satisfaction of a debt 
previously contracted in good faith (a ``dpc'' acquisition). In the 
situation presented, a lending subsidiary of a bank holding company made 
a ``dpc'' acquisition of assets and transferred them to a wholly-owned 
subsidiary of the bank holding company for the purpose of effecting an 
orderly divestiture. The question presented was whether such ``dpc'' 
assets could be held indefinitely by a bank holding company subsidiary 
as incidental to its permissible lending activity.
    (b) While the Board believes that ``dpc'' acquisitions may be 
regarded as normal, necessary and incidental to the business of lending, 
the Board does not believe that the holding of assets acquired ``dpc'' 
without any time restrictions is appropriate from the standpoint of 
prudent banking and in light of the prohibitions in section 4 of the Act 
against engaging in nonbank activities. If a nonbanking subsidiary of a 
bank holding company were permitted, either directly or through a 
subsidiary, to hold ``dpc'' assets of substantial amount over an 
extended period of time, the holding of such property could result in an 
unsafe or unsound banking practice or in the holding company engaging in 
an impermissible activity in connection with the assets, rather than 
liquidating them.
    (c) The Board notes that section 4(c)(2) of the Bank Holding Company 
Act provides an exemption from the prohibitions of section 4 of the Act 
for bank holding company subsidiaries to acquire shares ``dpc''. It also 
provides that such ``dpc'' shares may be held for a period of two years, 
subject to the Board's authority to grant three one-year extensions up 
to a maximum of five years.1 Viewed in light of the Congressional 
policy evidenced by section 4(c)(2), the Board believes that a lending 
subsidiary of a bank holding company or the holding company itself,

[[Page 133]]

should be permitted, as an incident to permissible lending activities, 
to make acquisitions of ``dpc'' assets. Consistent with the principles 
underlying the provisions of section 4(c)(2) of the Act and as a matter 
of prudent banking practice, such assets may be held for no longer than 
five years from the date of acquisition. Within the divestiture period 
it is expected that the company will make good faith efforts to dispose 
of ``dpc'' shares or assets at the earliest practicable date. While no 
specific authorization is necessary to hold such assets for the five-
year period, after two years from the date of acquisition of such 
assets, the holding company should report annually on its efforts to 
accomplish divestiture to its Reserve Bank. The Reserve Bank will 
monitor the efforts of the company to effect an orderly divestiture, and 
may order divestiture before the end of the five-year period if 
supervisory concerns warrant such action.
---------------------------------------------------------------------------

    1 The Board notes that where the dpc shares or other similar 
interests represent less than 5 percent of the total of such interests 
outstanding, they may be retained on the basis of section 4(c)(6), even 
if originally acquired dpc.
---------------------------------------------------------------------------

    (d) The Board recognizes that there are instances where a company 
may encounter particular difficulty in attempting to effect an orderly 
divestiture of ``dpc'' real estate holdings within the divestiture 
period, notwithstanding its persistent good faith efforts to dispose of 
such property. In the Depository Institutions Deregulation and Monetary 
Control Act of 1980, (Pub. L. 96-221) Congress, recognizing that real 
estate possesses unusual characteristics, amended the National Banking 
Act to permit national banks to hold real estate for five years and for 
an additional five-year period subject to certain conditions. Consistent 
with the policy underlying the recent Congressional enactment, and as a 
matter of supervisory policy, a bank holding company may be permitted to 
hold real estate acquired ``dpc'' beyond the initial five-year period 
provided that the value of the real estate on the books of the company 
has been written down to fair market value, the carrying costs are not 
significant in relation to the overall financial position of the 
company, and the company has made good faith efforts to effect 
divestiture. Companies holding real estate for this extended period are 
expected to make active efforts to dispose of it, and should keep the 
Reserve Bank advised on a regular basis concerning their ongoing 
efforts. Fair market value should be derived from appraisals, comparable 
sales or some other reasonable method. In any case, ``dpc'' real estate 
would not be permitted to be held beyond 10 years from the date of its 
acquisition.
    (e) With respect to the transfer by a subsidiary of other ``dpc'' 
shares or assets to another company in the holding company system, 
including a section 4(c)(1)(D) liquidating subsidiary, or to the holding 
company itself, such transfers would not alter the original divestiture 
period applicable to such shares or assets at the time of their 
acquisition. Moreover, to ensure that assets are not carried at inflated 
values for extended periods of time, the Board expects, in the case of 
all such intracompany transfers, that the shares or assets will be 
transferred at a value no greater than the fair market value at the time 
of transfer and that the transfer will be made in a normal arms-length 
transaction.
    (f) With regard to ``dpc'' assets acquired by a banking subsidiary 
of a holding company, so long as the assets continue to be held by the 
bank itself, the Board will regard them as being solely within the 
regulatory authority of the primary supervisor of the bank.

(12 U.S.C. 1843 (c)(1)(d), (c)(2), (c)(8), and 1844 (b); 12 U.S.C. 1818)

[45 FR 49905, July 28, 1980]



Sec. 225.141  Operations subsidiaries of a bank holding company.

    In orders approving the retention by a bank holding company of a 
4(c)(8) subsidiary, the Board has stated that it would permit, without 
any specific regulatory approval, the formation of a wholly owned 
subsidiary of an approved 4(c)(8) company to engage in activities that 
such a company could itself engage in directly through a division or 
department. (Northwestern Financial Corporation, 65 Federal Reserve 
Bulletin 566 (1979).) Section 4(a)(2) of the Act provides generally that 
a bank holding company may engage directly in the business of managing 
and controlling banks and permissible nonbank activities, and in 
furnishing services directly to its subsidiaries. Even though section 4 
of the Act generally prohibits the acquisition of

[[Page 134]]

shares of nonbanking organizations, the Board does not believe that such 
prohibition should apply to the formation by a holding company of a 
wholly-owned subsidiary to engage in activities that it could engage in 
directly. Accordingly, as a general matter, the Board will permit 
without any regulatory approval a bank holding company to form a wholly-
owned subsidiary to perform servicing activities for subsidiaries that 
the holding company itself could perform directly or through a 
department or a division under section 4(a)(2) of the Act. The Board 
believes that permitting this type of subsidiary is not inconsistent 
with the nonbanking prohibitions of section 4 of the Act, and is 
consistent with the authority in section 4(c)(1)(C) of the Act, which 
permits a bank holding company, without regulatory approval, to form a 
subsidiary to perform services for its banking subsidiaries. The Board 
notes, however, that a servicing subsidiary established by a bank 
holding company in reliance on this interpretation will be an affiliate 
of the subsidiary bank of the holding company for the purposes of the 
lending restrictions of section 23A of the Federal Reserve Act. (12 
U.S.C. 371c)

(12 U.S.C. 1843(a)(2) and 1844(b))

[45 FR 54326, July 15, 1980]



Sec. 225.142  Statement of policy concerning bank holding companies engaging in futures, forward and options contracts on U.S. Government and agency securities 
          and money market instruments.

    (a) Purpose of financial contract positions. In supervising the 
activities of bank holding companies, the Board has adopted and 
continues to follow the principle that bank holding companies should 
serve as a source of strength for their subsidiary banks. Accordingly, 
the Board believes that any positions that bank holding companies or 
their nonbank subsidiaries take in financial contracts should reduce 
risk exposure, that is, not be speculative.
    (b) Establishment of prudent written policies, appropriate 
limitations and internal controls and audit programs. If the parent 
organization or nonbank subsidiary is taking or intends to take 
positions in financial contracts, that company's board of directors 
should approve prudent written policies and establish appropriate 
limitations to insure that financial contract activities are performed 
in a safe and sound manner with levels of activity reasonably related to 
the organization's business needs and capacity to fulfill obligations. 
In addition, internal controls and internal audit programs to monitor 
such activity should be established. The board of directors, a duly 
authorized committee thereof or the internal auditors should review 
periodically (at least monthly) all financial contract positions to 
insure conformity with such policies and limits. In order to determine 
the company's exposure, all open positions should be reviewed and market 
values determined at least monthly, or more often, depending on volume 
and magnitude of positions.
    (c) Formulating policies and recording financial contracts. In 
formulating its policies and procedures, the parent holding company may 
consider the interest rate exposure of its nonbank subsidiaries, but not 
that of its bank subsidiaries. As a matter of policy, the Board believes 
that any financial contracts executed to reduce the interest rate 
exposure of a bank affiliate of a holding company should be reflected on 
the books and records of the bank affiliate (to the extent required by 
the bank policy statements), rather than on the books and records of the 
parent company. If a bank has an interest rate exposure that management 
believes requires hedging with financial contracts, the bank should be 
the direct beneficiary of any effort to reduce that exposure. The Board 
also believes that final responsibility for financial contract 
transactions for the account of each affiliated bank should reside with 
the management of that bank.
    (d) Accounting. The joint bank policy statements of March 12, 1980 
include accounting guidelines for banks that engage in financial 
contract activities. Since the Financial Accounting Standards Board is 
presently considering accounting standards for contract activities, no 
specific accounting requirements for financial contracts entered into by 
parent bank holding companies and nonbank subsidiaries are being

[[Page 135]]

mandated at this time. The Board expects to review further developments 
in this area.
    (e) Board to monitor bank holding company transactions in financial 
contracts. The Board intends to monitor closely bank holding company 
transactions in financial contracts to ensure that any such activity is 
consistent with maintaining a safe and sound banking system. In any 
cases where bank holding companies are found to be engaging in 
speculative practices, the Board is prepared to institute appropriate 
action under the Financial Institutions Supervisory Act of 1966, as 
amended.
    (f) Federal Reserve Bank notification. Bank holding companies should 
furnish written notification to their District Federal Reserve Bank 
within 10 days after financial contract activities are begun by the 
parent or a nonbank subsidiary. Holding companies in which the parent or 
a nonbank subsidiary currently engage in financial contract activity 
should furnish notice by March 31, 1983.

(Secs. 5(b) and 8 of the Bank Holding Company Act (12 U.S.C. 1844 and 
1847); sec. 8(b) of the Financial Institutions Supervisory Act (12 
U.S.C. 1818(b))

[48 FR 7720, Feb. 24, 1983]



Sec. 225.143  Policy statement on nonvoting equity investments by bank holding companies.

    (a) Introduction. (1) In recent months, a number of bank holding 
companies have made substantial equity investments in a bank or bank 
holding company (the ``acquiree'') located in states other than the home 
state of the investing company through acquisition of preferred stock or 
nonvoting common shares of the acquiree. Because of the evident interest 
in these types of investments and because they raise substantial 
questions under the Bank Holding Company Act (the ``Act''), the Board 
believes it is appropriate to provide guidance regarding the consistency 
of such arrangements with the Act.
    (2) This statement sets out the Board's concerns with these 
investments, the considerations the Board will take into account in 
determining whether the investments are consistent with the Act, and the 
general scope of arrangements to be avoided by bank holding companies. 
The Board recognizes that the complexity of legitimate business 
arrangements precludes rigid rules designed to cover all situations and 
that decisions regarding the existence or absence of control in any 
particular case must take into account the effect of the combination of 
provisions and covenants in the agreement as a whole and the particular 
facts and circumstances of each case. Nevertheless, the Board believes 
that the factors outlined in this statement provide a framework for 
guiding bank holding companies in complying with the requirements of the 
Act.
    (b) Statutory and regulatory provisions. (1) Under section 3(a) of 
the Act, a bank holding company may not acquire direct or indirect 
ownership or control of more than 5 per cent of the voting shares of a 
bank without the Board's prior approval. (12 U.S.C. 1842(a)(3)). In 
addition, this section of the Act provides that a bank holding company 
may not, without the Board's prior approval, acquire control of a bank: 
That is, in the words of the statute, ``for any action to be taken that 
causes a bank to become a subsidiary of a bank holding company.'' (12 
U.S.C. 1842(a)(2)). Under the Act, a bank is a subsidiary of a bank 
holding company if:
    (i) The company directly or indirectly owns, controls, or holds with 
power to vote 25 per cent or more of the voting shares of the bank;
    (ii) The company controls in any manner the election of a majority 
of the board of directors of the bank; or
    (iii) The Board determines, after notice and opportunity for 
hearing, that the company has the power, directly or indirectly, to 
exercise a controlling influence over the management or policies of the 
bank. (12 U.S.C. 1841(d)).
    (2) In intrastate situations, the Board may approve bank holding 
company acquisitions of additional banking subsidiaries. However, where 
the acquiree is located outside the home state of the investing bank 
holding company, section 3(d) of the Act prevents the Board from 
approving any application that will permit a bank holding company to 
``acquire, directly or indirectly, any voting shares of, interest in, or 
all or

[[Page 136]]

substantially all of the assets of any additional bank.'' (12 U.S.C. 
1842(d)(1)).
    (c) Review of agreements. (1) In apparent expectation of statutory 
changes that might make interstate banking permissible, bank holding 
companies have sought to make substantial equity investments in other 
bank holding companies across state lines, but without obtaining more 
than 5 per cent of the voting shares or control of the acquiree. These 
investments involve a combination of the following arrangements:
    (i) Options on, warrants for, or rights to convert nonvoting shares 
into substantial blocks of voting securities of the acquiree bank 
holding company or its subsidiary bank(s);
    (ii) Merger or asset acquisition agreements with the out-of-state 
bank or bank holding company that are to be consummated in the event 
interstate banking is permitted;
    (iii) Provisions that limit or restrict major policies, operations 
or decisions of the acquiree; and
    (iv) Provisions that make acquisition of the acquiree or its 
subsidiary bank(s) by a third party either impossible or economically 
impracticable.

The various warrants, options, and rights are not exercisable by the 
investing bank holding company unless interstate banking is permitted, 
but may be transferred by the investor either immediately or after the 
passage of a period of time or upon the occurrence of certain events.
    (2) After a careful review of a number of these agreements, the 
Board believes that investments in nonvoting stock, absent other 
arrangements, can be consistent with the Act. Some of the agreements 
reviewed appear consistent with the Act since they are limited to 
investments of relatively moderate size in nonvoting equity that may 
become voting equity only if interstate banking is authorized.
    (3) However, other agreements reviewed by the Board raise 
substantial problems of consistency with the control provisions of the 
Act because the investors, uncertain whether or when interstate banking 
may be authorized, have evidently sought to assure the soundness of 
their investments, prevent takeovers by others, and allow for sale of 
their options, warrants, or rights to a person of the investor's choice 
in the event a third party obtains control of the acquiree or the 
investor otherwise becomes dissatisfied with its investment. Since the 
Act precludes the investors from protecting their investments through 
ownership or use of voting shares or other exercise of control, the 
investors have substituted contractual agreements for rights normally 
achieved through voting shares.
    (4) For example, various covenants in certain of the agreements seek 
to assure the continuing soundness of the investment by substantially 
limiting the discretion of the acquiree's management over major policies 
and decisions, including restrictions on entering into new banking 
activities without the investor's approval and requirements for 
extensive consultations with the investor on financial matters. By their 
terms, these covenants suggest control by the investing company over the 
management and policies of the acquiree.
    (5) Similarly, certain of the agreements deprive the acquiree bank 
holding company, by covenant or because of an option, of the right to 
sell, transfer, or encumber a majority or all of the voting shares of 
its subsidiary bank(s) with the aim of maintaining the integrity of the 
investment and preventing takeovers by others. These long-term 
restrictions on voting shares fall within the presumption in the Board's 
Regulation Y that attributes control of shares to any company that 
enters into any agreement placing long-term restrictions on the rights 
of a holder of voting securities. (12 CFR 225.2(b)(4)).
    (6) Finally, investors wish to reserve the right to sell their 
options, warrants or rights to a person of their choice to prevent being 
locked into what may become an unwanted investment. The Board has taken 
the position that the ability to control the ultimate disposition of 
voting shares to a person of the investor's choice and to secure the 
economic benefits therefrom indicates control of the shares under the 
Act.1

[[Page 137]]

Moreover, the ability to transfer rights to large blocks of voting 
shares, even if nonvoting in the hands of the investing company, may 
result in such a substantial position of leverage over the management of 
the acquiree as to involve a structure that inevitably results in 
control prohibited by the Act.
---------------------------------------------------------------------------

    1 See Board letter dated March 18, 1982, to C. A. Cavendes, 
Sociedad Financiera.
---------------------------------------------------------------------------

    (d) Provisions that avoid control. (1) In the context of any 
particular agreement, provisions of the type described above may be 
acceptable if combined with other provisions that serve to preclude 
control. The Board believes that such agreements will not be consistent 
with the Act unless provisions are included that will preserve 
management's discretion over the policies and decisions of the acquiree 
and avoid control of voting shares.
    (2) As a first step towards avoiding control, covenants in any 
agreement should leave management free to conduct banking and 
permissible nonbanking activities. Another step to avoid control is the 
right of the acquiree to ``call'' the equity investment and options or 
warrants to assure that covenants that may become inhibiting can be 
avoided by the acquiree. This right makes such investments or agreements 
more like a loan in which the borrower has a right to escape covenants 
and avoid the lender's influence by prepaying the loan.
    (3) A measure to avoid problems of control arising through the 
investor's control over the ultimate disposition of rights to 
substantial amounts of voting shares of the acquiree would be a 
provision granting the acquiree a right of first refusal before 
warrants, options or other rights may be sold and requiring a public and 
dispersed distribution of these rights if the right of first refusal is 
not exercised.
    (4) In this connection, the Board believes that agreements that 
involve rights to less than 25 percent of the voting shares, with a 
requirement for a dispersed public distribution in the event of sale, 
have a much greater prospect of achieving consistency with the Act than 
agreements involving a greater percentage. This guideline is drawn by 
analogy from the provision in the Act that ownership of 25 percent or 
more of the voting securities of a bank constitutes control of the bank.
    (5) The Board expects that one effect of this guideline would be to 
hold down the size of the nonvoting equity investment by the investing 
company relative to the acquiree's total equity, thus avoiding the 
potential for control because the investor holds a very large proportion 
of the acquiree's total equity. Observance of the 25 percent guideline 
will also make provisions in agreements providing for a right of first 
refusal or a public and widely dispersed offering of rights to the 
acquiree's shares more practical and realistic.
    (6) Finally, certain arrangements should clearly be avoided 
regardless of other provisions in the agreement that are designed to 
avoid control. These are:
    (i) Agreements that enable the investing bank holding company (or 
its designee) to direct in any manner the voting of more than 5 per cent 
of the voting shares of the acquiree;
    (ii) Agreements whereby the investing company has the right to 
direct the acquiree's use of the proceeds of an equity investment by the 
investing company to effect certain actions, such as the purchase and 
redemption of the acquiree's voting shares; and
    (iii) The acquisition of more than 5 per cent of the voting shares 
of the acquiree that ``simultaneously'' with their acquisition by the 
investing company become nonvoting shares, remain nonvoting shares while 
held by the investor, and revert to voting shares when transferred to a 
third party.
    (e) Review by the Board. This statement does not constitute the 
exclusive scope of the Board's concerns, nor are the considerations with 
respect to control outlined in this statement an exhaustive catalog of 
permissible or impermissible arrangements. The Board has instructed its 
staff to review agreements of the kind discussed in this statement and 
to bring to the Board's attention those that raise problems of 
consistency with the Act. In this regard, companies are requested to 
notify the Board of the terms of such proposed merger or asset 
acquisition agreements or nonvoting equity investments prior to their 
execution or consummation.

[47 FR 30966, July 16, 1982]

[[Page 138]]



Sec. 225.145  Limitations established by the Competitive Equality Banking Act of 1987 on the activities and growth of nonbank banks.

    (a) Introduction. Effective August 10, 1987, the Competitive 
Equality Banking Act of 1987 (``CEBA'') redefined the term ``bank'' in 
the Bank Holding Company Act (``BHC Act'' or ``Act'') to include any 
bank the deposits of which are insured by the Federal Deposit Insurance 
Corporation as well as any other institution that accepts demand or 
checkable deposit accounts and is engaged in the business of making 
commercial loans. 12 U.S.C. 1841(c). CEBA also contained a grandfather 
provision for certain companies affected by this redefinition. CEBA 
amended section 4 of the BHC Act to permit a company that on March 5, 
1987, controlled a nonbank bank (an institution that became a bank as a 
result of enactment of CEBA) and that was not a bank holding company on 
August 9, 1987, to retain its nonbank bank and not be treated as a bank 
holding company for purposes of the BHC Act if the company and its 
subsidiary nonbank bank observe certain limitations imposed by CEBA.\1\ 
Certain of these limitations are codified in section 4(f)(3) of the BHC 
Act and generally restrict nonbank banks from commencing new activities 
or certain cross-marketing activities with affiliates after March 5, 
1987, increasing their assets at an annual rate exceeding 7 percent 
during any 12 month period after August 10, 1988, or permitting 
overdrafts for affiliates or incurring overdrafts on behalf of 
affiliates at a Federal Reserve Bank. 12 U.S.C. 1843(f)(3).\2\ The 
Board's views regarding the meaning and scope of these limitations are 
set forth below and in provisions of the Board's Regulation Y (12 CFR 
225.51 and 225.52).
---------------------------------------------------------------------------

    \1\ 12 U.S.C. 1843(f). Such a company is treated as a bank holding 
company, however, for purposes of the anti-tying provisions in section 
106 of the BHC Act Amendments of 1970 (12 U.S.C. 1971 et seq.) and the 
insider lending limitations of secton 22(h) of the Federal Reserve Act 
(12 U.S.C. 375b). The company is also subject to certain examination and 
enforcement provisions to assure compliance with CEBA.
    \2\ CEBA also prohibits, with certain limited exceptions, a company 
controlling a grandfathered nonbank bank from acquiring control of an 
additional bank or thrift institution or acquiring, directly or 
indirectly after March 5, 1987, more than 5 percent of the assets or 
shares of a bank or thrift institution. 12 U.S.C. 1843(f)(2).
---------------------------------------------------------------------------

    (b) Congressional findings. (1) At the outset, the Board notes that 
the scope and application of the Act's limitations on nonbank banks must 
be guided by the Congressional findings set out in section 4(f)(3) of 
the BHC Act. Congress was aware that these nonbank banks had been 
acquired by companies that engage in a wide range of nonbanking 
activities, such as retailing and general securities activities that are 
forbidden to bank holding companies under section 4 of the BHC Act. In 
section 4(f)(3), Congress found that nonbank banks controlled by 
grandfathered nonbanking companies may, because of their relationships 
with affiliates, be involved in conflicts of interest, concentration of 
resources, or other effects adverse to bank safety and soundness. 
Congress also found that nonbank banks may be able to compete unfairly 
against banks controlled by bank holding companies by combining banking 
services with financial services not permissible for bank holding 
companies. Section 4(f)(3) states that the purpose of the nonbank bank 
limitations is to minimize any such potential adverse effects or 
inequities by restricting the activities of nonbank banks until further 
Congressional action in the area of bank powers could be undertaken. 
Similarly, the Senate Report accompanying CEBA states that the 
restrictions CEBA places on nonbank banks ``will help prevent existing 
nonbank banks from changing their basic character * * * while Congress 
considers proposals for comprehensive legislation; from drastically 
eroding the separation of banking and commerce; and from increasing the 
potential for unfair competition, conflicts of interest, undue 
concentration of resources, and other adverse effects.'' S. Rep. No. 
100-19, 100th Cong., 1st Sess. 12 (1987). See also H. Rep. No. 100-261, 
100th Cong., 1st Sess. 124 (1987) (the ``Conference Report'').

[[Page 139]]

    (2) Thus, Congress explicitly recognized in the statute itself that 
nonbanking companies controlling grandfathered nonbank banks, which 
include the many of the nation's largest commercial and financial 
organizations, were being accorded a significant competitive advantage 
that could not be matched by bank holding companies because of the 
general prohibition against nonbanking activities in section 4 of the 
BHC Act. Congress recognized that this inequality in regulatory approach 
could inflict serious competitive harm on regulated bank holding 
companies as the grandfathered entities sought to exploit potential 
synergies between banking and commercial products and services. See 
Conference Report at 125-126. The basic and stated purpose of the 
restrictions on grandfathered nonbank banks is to minimize these 
potential anticompetitive effects.
    (3) The Board believes that the specific CEBA limitations should be 
implemented in light of these Congressional findings and the legislative 
intent reflected in the plain meaning of the terms used in the statute. 
In those instances when the language of the statute did not provide 
clear guidance, legislative materials and the Congressional intent 
manifested in the overall statutory structure were considered. The Board 
also notes that prior precedent requires that grandfather exceptions in 
the BHC Act, such as the nonbank bank limitations and particularly the 
exceptions thereto, are to be interpreted narrowly in order to ensure 
the proper implementation of Congressional intent.\3\
---------------------------------------------------------------------------

    \3\ E.g., Maryland National Corporation, 73 Federal Reserve Bulletin 
310, 313-314 (1987). Cf., Spokane & Inland Empire Railroad Co. v. United 
States, 241 U.S. 344, 350 (1915).
---------------------------------------------------------------------------

    (c) Activity limitation--(1) Scope of activity. (i) The first 
limitation established under section 4(f)(3) provides that a nonbank 
bank shall not ``engage in any activity in which such bank was not 
lawfully engaged as of March 5, 1987.'' The term activity as used in 
this provision of CEBA is not defined. The structure and placement of 
the CEBA activity restriction within section 4 of the BHC Act and its 
legislative history do, however, provide direction as to certain 
transactions that Congress intended to treat as separate activities, 
thereby providing guidance as to the meaning Congress intended to 
ascribe to the term generally. First, it is clear that the term activity 
was not meant to refer to banking as a single activity. To the contrary, 
the term must be viewed as distinguishing between deposit taking and 
lending activities and treating demand deposit-taking as a separate 
activity from general deposit-taking and commercial lending as separate 
from the general lending category.
    (ii) Under the activity limitation, a nonbank bank may engage only 
in activities in which it was ``lawfully engaged'' as of March 5, 1987. 
As of that date, a nonbank bank could not have been engaged in both 
demand deposit-taking and commercial lending activity without placing it 
and its parent holding company in violation of the BHC Act. Thus, under 
the activity limitations, a nonbank bank could not after March 5, 1987, 
commence the demand deposit-taking or commercial lending activity that 
it did not conduct as of March 5, 1987. The debates and Senate and 
Conference Reports on CEBA confirm that Congress intended the activity 
limitation to prevent a grandfathered nonbank bank from converting 
itself into a full-service bank by both offering demand deposits and 
engaging in the business of making commercial loans.\4\ Thus, these 
types of transactions provide a clear guide as to the type of banking 
transactions that would constitute activities under CEBA and the degree 
of specificity intended by Congress in interpreting that term.
---------------------------------------------------------------------------

    \4\ Conference Report at 124-25; S. Rep. No. 100-19 at 12, 32; H. 
Rep. No. 99-175, 99th Cong., 1st Sess. 3 (1985) (``the activities 
limitation is to prevent an institution engaged in a limited range of 
functions from expanding into new areas and becoming, in essence, a 
full-service bank''); 133 Cong. Rec. S4054 (daily ed. March 27, 1987); 
(Comments of Senator Proxmire).
---------------------------------------------------------------------------

    (iii) It is also clear that the activity limitation was not intended 
simply to prevent a nonbank bank from both accepting demand deposits and 
making commercial loans; it has a broader

[[Page 140]]

scope and purpose. If Congress had meant the term to refer to just these 
two activities, it would have used the restriction it used in another 
section of CEBA dealing with nonbank banks owned by bank holding 
companies which has this result, i.e., the nonbank bank could not engage 
in any activity that would have caused it to become a bank under the 
prior bank definition in the Act. See 12 U.S.C. 1843(g)(1)(A). Indeed, 
an earlier version of CEBA under consideration by the Senate Banking 
Committee contained such a provision for nonbank banks owned by 
commercial holding companies, which was deleted in favor of the broader 
activity limitation actually enacted. Committee Print No. 1, (Feb. 17, 
1987). In this regard, both the Senate Report and Conference Report 
refer to demand deposit-taking and commercial lending as examples of 
activities that could be affected by the activity limitation, not as the 
sole activities to be limited by the provision.\5\
---------------------------------------------------------------------------

    \5\ Conference Report at 124-125; S. Rep. No. 100-19 at 32.
---------------------------------------------------------------------------

    (iv) Finally, additional guidance as to the meaning of the term 
activity is provided by the statutory context in which the term appears. 
The activity limitation is contained in section 4 of the BHC Act, which 
regulates the investments and activities of bank holding companies and 
their nonbank subsidiaries. The Board believes it reasonable to conclude 
that by placing the CEBA activity limitation in section 4 of the BHC 
Act, Congress meant that Board and judicial decisions regarding the 
meaning of the term activity in that section be looked to for guidance. 
This is particularly appropriate given the fact that grandfathered 
nonbank banks, whether owned by bank holding companies or unregulated 
holding companies, were treated as nonbank companies and not banks 
before enactment of CEBA.
    (v) This interpretation of the term activity draws support from 
comments by Senator Proxmire during the Senate's consideration of the 
provision that the term was not intended to apply ``on a product-by-
product, customer-by-customer basis.'' 133 Cong. Rec. S4054-5 (daily ed. 
March 27, 1987). This is the same manner in which the Board has 
interpreted the term activity in the nonbanking provision of section 4 
as referring to generic categories of activities, not to discrete 
products and services.
    (vi) Accordingly, consistent with the terms and purposes of the 
legislation and the Congressional intent to minimize unfair competition 
and the other adverse effects set out in the CEBA findings, the Board 
concludes that the term activity as used in section 4(f)(3) means any 
line of banking or nonbanking business. This definition does not, 
however, envision a product-by-product approach to the activity 
limitation. The Board believes it would be helpful to describe the 
application of the activity limitation in the context of the following 
major categories of activities: deposit-taking, lending, trust, and 
other activities engaged in by banks.
    (2) Deposit-taking activities. (i) With respect to deposit-taking, 
the Board believes that the activity limitation in section 4(f)(3) 
generally refers to three types of activity: demand deposit-taking; non-
demand deposit-taking with a third party payment capability; and time 
and savings deposit-taking without third party payment powers. As 
previously discussed, it is clear from the terms and intent of CEBA that 
the activity limitation would prevent, and was designed to prevent, 
nonbank banks that prior to the enactment of CEBA had refrained from 
accepting demand deposits in order to avoid coverage as a bank under the 
BHC Act, from starting to take these deposits after enactment of CEBA 
and thus becoming full-service banks. Accordingly, CEBA requires that 
the taking of demand deposits be treated as a separate activity.
    (ii) The Board also considers nondemand deposits withdrawable by 
check or other similar means for payment to third parties or others to 
constitute a separate line of business for purposes of applying the 
activity limitation. In this regard, the Board has previously recognized 
that this line of businesss constitutes a permissible but separate 
activity under section 4 of the BHC Act. Furthermore, the offering of 
accounts with transaction capability

[[Page 141]]

requires different expertise and systems than non-transaction deposit-
taking and represented a distinct new activity that traditionally 
separated banks from thrift and similar institutions.
    (iii) Support for this view may also be found in the House Banking 
Committee report on proposed legislation prior to CEBA that contained a 
similar prohibition on new activities for nonbank banks. In discussing 
the activity limitation, the report recognized a distinction between 
demand deposits and accounts with transaction capability and those 
without transaction capability:

    With respect to deposits, the Committee recognizes that it is 
legitimate for an institution currently involved in offering demand 
deposits or other third party transaction accounts to make use of new 
technologies that are in the process of replacing the existing check-
based, paper payment system. Again, however, the Committee does not 
believe that technology should be used as a lever for an institution 
that was only incidentally involved in the payment system to transform 
itself into a significant offeror of transaction account capability.\6\
---------------------------------------------------------------------------

    \6\ H. Rep. No. 99-175, 99th Cong., 1st Sess. 13 (1985).

    (iv) Finally, this distinction between demand and nondemand 
checkable accounts and accounts not subject to withdrawal by check was 
specifically recognized by Congress in the redefinition of the term bank 
in CEBA to include an institution that takes demand deposits or 
``deposits that the depositor may withdraw by check or other means for 
payment to third parties or others'' as well as in various exemptions 
from that definition for trust companies, credit card banks, and certain 
industrial banks.\7\
---------------------------------------------------------------------------

    \7\ See 12 U.S.C. 1841(c)(2) (D), (F), (H), and (I).
---------------------------------------------------------------------------

    (v) Thus, an institution that as of March 5, 1987, offered only time 
and savings accounts that were not withdrawable by check for payment to 
third parties could not thereafter begin offering accounts with 
transaction capability, for example, NOW accounts or other types of 
transaction accounts.
    (3) Lending. As noted, the CEBA activity limitation does not treat 
lending as a single activity; it clearly distinguishes between 
commercial and other types of lending. This distinction is also 
reflected in the definition of bank in the BHC Act in effect both prior 
to and after enactment of CEBA as well as in various of the exceptions 
from this definition. In addition, commercial lending is a specialized 
form of lending involving different techniques and analysis from other 
types of lending. Based upon these factors, the Board would view 
commercial lending as a separate and distinct activity for purposes of 
the activity limitation in section 4(f)(3). The Board's decisions under 
section 4 of the BHC Act have not generally differentiated between types 
of commercial lending, and thus the Board would view commercial lending 
as a single activity for purposes of CEBA. Thus, a nonbank bank that 
made commercial loans as of March 5, 1987, could make any type of 
commercial loan thereafter.
    (i) Commercial lending. For purposes of the activity limitation, a 
commercial loan is defined in accordance with the Supreme Court's 
decision in Board of Governors v. Dimension Financial Corporation, 474 
U.S. 361 (1986), as a direct loan to a business customer for the purpose 
of providing funds for that customer's business. In this regard, the 
Board notes that whether a particular transaction is a commercial loan 
must be determined not from the face of the instrument, but from the 
application of the definition of commercial loan in the Dimension 
decision to that transaction. Thus, certain transactions of the type 
mentioned in the Board's ruling at issue in Dimension and in the Senate 
and Conference Reports in the CEBA legislation \8\ would be commercial 
loans if they meet the test for commercial loans established in 
Dimension. Under this test, a commercial loan would not include, for 
example, an open-market investment in a commercial entity that does not 
involve a borrower-lender relationship or negotiation of credit terms, 
such as a money market transaction.
---------------------------------------------------------------------------

    \8\ S. Rep. No. 100-19 at 31; Conference Report at 123.
---------------------------------------------------------------------------

    (ii) Other lending. Based upon the guidance in the Act as to the 
degree of

[[Page 142]]

specificity required in applying the activity limitation with respect to 
lending, the Board believes that, in addition to commercial lending, 
there are three other types of lending activities: consumer mortgage 
lending, consumer credit card lending, and other consumer lending. 
Mortgage lending and credit card lending are recognized, discrete lines 
of banking and business activity, involving techniques and processes 
that are different from and more specialized than those required for 
general consumer lending. For example, these activities are, in many 
cases, conducted by specialized institutions, such as mortgage companies 
and credit card institutions, or through separate organizational 
structures within an institution, particularly in the case of mortgage 
lending. Additionally, the Board's decisions under section 4 of the Act 
have recognized mortgage banking and credit card lending as separate 
activities for bank holding companies. The Board's Regulation Y reflects 
this specialization, noting as examples of permissible lending activity: 
consumer finance, credit card and mortgage lending. 12 CFR 225.25(b)(1). 
Finally, CEBA itself recognizes the specialized nature of credit card 
lending by exempting an institution specializing in that activity from 
the bank definition. For purpose of the activity limitation, a consumer 
mortgage loan will mean any loan to an individual that is secured by 
real estate and that is not a commercial loan. A credit card loan would 
be any loan made to an individual by means of a credit card that is not 
a commercial loan.
    (4) Trust activities. Under section 4 of the Act, the Board has 
historically treated trust activities as a single activity and has not 
differentiated the function on the basis of whether the customer was an 
individual or a business. See 12 CFR 225.25(b)(3). Similarly, the trust 
company exemption from the bank definition in CEBA makes no distinction 
between various types of trust activities. Accordingly, the Board would 
view trust activities as a separate activity without additional 
differentiation for purposes of the activity limitation in section 
4(f)(3).
    (5) Other activities. With respect to activities other than the 
various traditional deposit-taking, lending or trust activities, the 
Board believes it appropriate, for the reasons discussed above, to apply 
the activity limitation in section 4(f)(3) as the term activity 
generally applies in other provisions of section 4 of the BHC Act. Thus, 
a grandfathered nonbank bank could not, for example, commence after 
March 5, 1987, any of the following activities (unless it was engaged in 
such an activity as of that date): discount securities brokerage, full-
service securities brokerage investment advisory services, underwriting 
or dealing in government securities as permissible for member banks, 
foreign exchange transaction services, real or personal property 
leasing, courier services, data processing for third parties, insurance 
agency activities,\9\ real estate development, real estate brokerage, 
real estate syndication, insurance underwriting, management consulting, 
futures commission merchant, or activities of the general type listed in 
Sec. 225.25(b) of Regulation Y.
---------------------------------------------------------------------------

    \9\ In this area, section 4 of the Act does not treat all insurance 
agency activities as a single activity. Thus, for example, the Act 
treats the sale of credit-related life, accident and health insurance as 
a separate activity from general insurance agency activities. See 12 
U.S.C. 1843(c)(8).
---------------------------------------------------------------------------

    (6) Meaning of engaged in. In order to be engaged in an activity, a 
nonbank bank must demonstrate that it had a program in place to provide 
a particular product or service included within the grandfathered 
activity to a customer and that it was in fact offering the product or 
service to customers as of March 5, 1987. Thus, a nonbank bank is not 
engaged in an activity as of March 5, 1987, if the product or service in 
question was in a planning state as of that date and had not been 
offered or delivered to a customer. Consistent with prior Board 
interpretations of the term activity in the grandfather provisions of 
section 4, the Board does not believe that a company may be engaged in 
an activity on the basis of a single isolated transaction that was not 
part of a program to offer the particular product or to conduct in the 
activity on an ongoing basis. For example, a nonbank bank that held an 
interest in a single real estate project would

[[Page 143]]

not thereby be engaged in real estate development for purposes of this 
provision, unless evidence was presented indicating the interest was 
held under a program to commence a real estate development business.
    (7) Meaning of as of The Board believes that the grandfather date 
``as of March 5, 1987'' as used throughout section 4(f)(3) should refer 
to activities engaged in on March 5, 1987, or a reasonably short period 
preceding this date not exceeding 13 months. 133 Cong. Rec. S3957 (daily 
ed. March 26, 1987). (Remarks of Senators Dodd and Proxmire). Activities 
that the institution had terminated prior to March 5, 1988, however, 
would not be considered to have been conducted or engaged in as of March 
5. For example, if within 13 months of March 5, 1987, the nonbank bank 
had terminated its commercial lending activity in order to avoid the 
bank definition in the Act, the nonbank bank could not recommence that 
activity after enactment of CEBA.
    (d) Cross-marketing limitation--(1) In general. Section 4(f)(3) also 
limits cross-marketing activities by nonbank banks and their affiliates. 
Under this provision, a nonbank bank may not offer or market a product 
or service of an affiliate unless the product or service may be offered 
by bank holding companies generally under section 4(c)(8) of the BHC 
Act. In addition, a nonbank bank may not permit any of its products or 
services to be offered or marketed by or through a nonbank affiliate 
unless the affiliate engages only in activities permissible for a bank 
holding company under section 4(c)(8). These limitations are subject to 
an exception for products or services that were being so offered or 
marketed as of March 5, 1987, but only in the same manner in which they 
were being offered or marketed as of that date.
    (2) Examples of impermissible cross-marketing. The Conference Report 
illustrates the application of this limitation to the following two 
covered transactions: (i) products and services of an affiliate that 
bank holding companies may not offer under the BHC Act, and (ii) 
products and services of the nonbank bank. In the first case, the 
restrictions would prohibit, for example, a company from marketing life 
insurance or automotive supplies through its affiliate nonbank bank 
because these products are not generally permissible under the BHC Act. 
Conference Report at 126. In the second case, a nonbank bank may not 
permit its products or services to be offered or marketed through a life 
insurance affiliate or automobile parts retailer because these 
affiliates engage in activities prohibited under the BHC Act. Id.
    (3) Permissible cross-marketing. On the other hand, a nonbank bank 
could offer to its customers consumer loans from an affiliated mortgage 
banking or consumer finance company. These affiliates could likewise 
offer their customers the nonbank bank's products or services provided 
the affiliates engaged only in activities permitted for bank holding 
companies under the closely-related-to-banking standard of section 
4(c)(8) of the BHC Act. If the affiliate is engaged in both permissible 
and impermissible activities within the meaning of section 4(c)(8) of 
the BHC Act, however, the affiliate could not offer or market the 
nonbank bank's products or services.
    (4) Product approach to cross-marketing restriction. (i) Unlike the 
activity restrictions, the cross-marketing restrictions of CEBA apply by 
their terms to individual products and services. Thus, an affiliate of a 
nonbank bank that was engaged in activities that are not permissible for 
bank holding companies and that was marketing a particular product or 
service of a nonbank bank on the grandfather date could continue to 
market that product and, as discussed below, could change the terms and 
conditions of the loan. The nonbank affiliate could not, however, begin 
to offer or market another product or service of the nonbank bank.
    (ii) The Board believes that the term product or service must be 
interpreted in light of its accepted ordinary commercial usage. In some 
instances, commercial usage has identified a group of products so 
closely related that they constitute a product line (e.g., certificates 
of deposit) and differences in versions of the product (e.g., a one-year 
certificate of deposit) simply represent

[[Page 144]]

a difference in the terms of the product.\10\ This approach is 
consistent with the treatment in CEBA's legislative history of 
certificates of deposit as a product line rather than each particular 
type of CD as a separate product.\11\
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    \10\ American Bankers Association, Banking Terminology (1981).
    \11\ During the Senate debates on CEBA, Senator Proxmire in response 
to a statement from Senator Cranston that the joint-marketing 
restrictions do not lock into place the specific terms or conditions of 
the particular grandfathered product or service, stated:
    That is correct. For example, if a nonbank bank was jointly 
marketing on March 5, 1987, a 3 year, $5,000 certificate of deposit, 
this bill would not prohibit offering in the same manner a 1 year, 
$2,000 certificate of deposit with a different interest rate. 133 Cong. 
Rec. S3959 (daily ed. March 26, 1987).
---------------------------------------------------------------------------

    (iii) In the area of consumer lending, the Board believes the 
following provide examples of different consumer loan products: mortgage 
loans to finance the purchase of the borrower's residence, unsecured 
consumer loans, consumer installment loans secured by the personal 
property to be purchased (e.g. automobile, boat or home appliance 
loans), or second mortgage loans.\1\\2\ Under this interpretation, a 
nonbank bank that offered automobile loans through a nonbank affiliate 
on the grandfather date could market boat loans, appliance loans or any 
type of secured consumer installment loan through that affiliate. It 
could not, however, market unsecured consumer loans, home mortgage loans 
or other types of consumer loans.
---------------------------------------------------------------------------

    \1\\2\ In this regard, the Supreme Court in United States v. 
Philadelphia National Bank, noted that ``the principal banking products 
are of course various types of credit, for example: unsecured personal 
and business loans, mortgage loans, loans secured by securities or 
accounts receivable, automobile installment and consumer goods, 
installment loans, tuition financing, bank credit cards, revolving 
credit funds.'' 374 U.S. 321, 326 n.5 (1963).
---------------------------------------------------------------------------

    (iv) In other areas, the Board believes that the determination as to 
what constitutes a product or service should be made on a case-by-case 
basis consistent with the principles that the terms product or service 
must be interpreted in accordance with their ordinary commercial usage 
and must be narrower in scope than the definition of activity. 
Essentially, the concept applied in this analysis is one of permitting 
the continuation of the specific product marketing activity that was 
undertaken as of March 5, 1987. Thus, for example, while insurance 
underwriting may constitute a separate activity under CEBA, a nonbank 
bank could not market a life insurance policy issued by the affiliate if 
on the grandfather date it had only marketed homeowners' policies issued 
by the affiliate.
    (5) Change in terms and conditions permitted. (i) The cross-
marketing restrictions would not limit the ability of the institution to 
change the specific terms and conditions of a particular grandfathered 
product or service. The Conference Report indicates a legislative intent 
not to lock into place the specific terms or conditions of a 
grandfathered product or service. Conference Report at 126. For example, 
a nonbank bank marketing a three-year, $5,000 certificate of deposit 
through an affiliate under the exemption could offer a one-year $2,000 
certificate of deposit with a different interest rate after the 
grandfather date. See footnote 11 above. Modifications that alter the 
type of product, however, are not permitted. Thus, a nonbank bank that 
marketed through affiliates on March 5, 1987, only certificates of 
deposit could not commence marketing MMDA's or NOW accounts after the 
grandfather date.
    (ii) General changes in the character of the product or service as 
the result of market or technological innovation are similarly permitted 
to the extent that they do not transform a grandfathered product into a 
new product. Thus, an unsecured line of credit could not be modified to 
include a lien on the borrower's residence without becoming a new 
product.
    (6) Meaning of offer or market. In the Board's opinion, the terms 
offer or market in the cross-marketing restrictions refer to the 
presentation to a customer of an institution's products or service 
through any type of program, including telemarketing, advertising 
brochures, direct mailing, personal solicitation, customer referrals, or 
joint-marketing agreements or presentations. An institution must have 
offered or actually marketed the product or service on March 5 or 
shortly before that date (as

[[Page 145]]

discussed above) to qualify for the grandfather privilege. Thus, if the 
cross-marketing program was in the planning stage on March 5, 1987, the 
program would not quality for grandfather treatment under CEBA.
    (7) Limitations on cross-marketing to in the same manner. (i) The 
cross-marketing restriction in section 4(f)(3) contains a grandfather 
provision that permits products or services that would otherwise be 
prohibited from being offered or marketed under the provision to 
continue to be offered or marketed by a particular entity if the 
products or services were being so offered or marketed as of March 5, 
1987, but ``only in the same manner in which they were being offered or 
marketed as of that date.'' Thus, to qualify for the grandfather 
provision, the manner of offering or marketing the otherwise prohibited 
product or service must remain the same as on the grandfather date.
    (ii) In interpreting this provision, the Board notes that Congress 
designed the joint-marketing restrictions to prevent the significant 
risk to the public posed by the conduct of such activities by insured 
banks affiliated with companies engaged in general commerce, to ensure 
objectivity in the credit-granting process and to ``minimize the unfair 
competitive advantage that grandfathered commercial companies owning 
nonbank banks might otherwise engage over regulated bank holding 
companies and our competing commercial companies that have no subsidiary 
bank.'' Conference Report at 125-126. The Board believes that 
determinations regarding the manner of cross-marketing of a particular 
product or service may best be accomplished by applying the limitation 
to the particular facts in each case consistent with the stated purpose 
of this provision of CEBA and the general principle that grandfather 
restrictions and exceptions to general prohibitions must be narrowly 
construed in order to prevent the exception from nullifying the rule. 
Essentially, as in the scope of the term ``product or service'', the 
guiding principle of Congressional intent with respect to this term is 
to permit only the continuation of the specific types of cross-marketing 
activity that were undertaken as of March 5, 1987.
    (8) Eligibility for cross-marketing grandfather exemption. The 
Conference Report also clarifies that entitlement to an exemption to 
continue to cross-market products and services otherwise prohibited by 
the statute applies only to the specific company that was engaged in the 
activity as of March 5, 1987. Conference Report at 126. Thus, an 
affiliate that was not engaged in cross-marketing products or services 
as of the grandfather date may not commence these activities under the 
exemption even if such activities were being conducted by another 
affiliate. Id.; see also S. Rep. No. 100-19 at 33-34.
    (e) Eligibility for grandfathered nonbank bank status. In reviewing 
the reports required by CEBA, the Board notes that a number of 
institutions that had not commenced business operations on August 10, 
1987, the date of enactment of CEBA, claimed grandfather privileges 
under section 4(f)(3) of CEBA. To qualify for grandfather privileges 
under section 4(f)(3), the institution must have ``bec[o]me a bank as a 
result of the enactment of [CEBA]'' and must have been controlled by a 
nonbanking company on March 5, 1987. 12 U.S.C. 1843(f)(1)(A). An 
institution that did not have FDIC insurance on August 10, 1987, and 
that did not accept demand deposits or transaction accounts or engage in 
the business of commercial lending on that date, would not have become a 
bank as a result of enactment of CEBA. Thus, institutions that had not 
commenced operations on August 10, 1987, could not qualify for 
grandfather privileges under section 4(f)(3) of CEBA. This view is 
supported by the activity limitations of section 4(f)(3), which, as 
noted, limit the activities of grandfathered nonbank banks to those in 
which they were lawfully engaged as of March 5, 1987. A nonbank bank 
that had not commenced conducting business activities on March 5, 1987, 
could not after enactment of CEBA engage in any activities under this 
provision.

[Reg. Y, 53 FR 37746, Sept. 28, 1988]

[[Page 146]]



  Appendix A to Part 225--Capital Adequacy Guidelines for Bank Holding 
                      Companies: Risk-Based Measure

                               I. Overview

    The Board of Governors of the Federal Reserve System has adopted a 
risk-based capital measure to assist in the assessment of the capital 
adequacy of bank holding companies (banking organizations).\1\The 
principal objectives of this measure are to: (i) Make regulatory capital 
requirements more sensitive to differences in risk profiles among 
banking organizations; (ii) factor off-balance sheet exposures into the 
assessment of capital adequacy; (iii) minimize disincentives to holding 
liquid, low-risk assets; and (iv) achieve greater consistency in the 
evaluation of the capital adequacy of major banking organizations 
throughout the world.\2\
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    \1\ Supervisory ratios that relate capital to total assets for bank 
holding companies are outlined in appendices B and D of this part.
    \2\ The risk-based capital measure is based upon a framework 
developed jointly by supervisory authorities from the countries 
represented on the Basle Committee on Banking Regulations and 
Supervisory Practices (Basle Supervisors' Committee) and endorsed by the 
Group of Ten Central Bank Governors. The framework is described in a 
paper prepared by the BSC entitled ``International Convergence of 
Capital Measurement,'' July 1988.
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    The risk-based capital guidelines include both a definition of 
capital and a framework for calculating weighted risk assets by 
assigning assets and off-balance sheet items to broad risk categories. 
An institution's risk-based capital ratio is calculated by dividing its 
qualifying capital (the numerator of the ratio) by its weighted risk 
assets (the denominator).\3\ The definition of qualifying capital is 
outlined below in section II, and the procedures for calculating 
weighted risk assets are discussed in section III. Attachment I 
illustrates a sample calculation of weighted risk assets and the risk-
based capital ratio.
---------------------------------------------------------------------------

    \3\ Banking organizations will initially be expected to utilize 
period-end amounts in calculating their risk-based capital ratios. When 
necessary and appropriate, ratios based on average balances may also be 
calculated on a case-by-case basis. Moreover, to the extent banking 
organizations have data on average balances that can be used to 
calculate risk-based ratios, the Federal Reserve will take such data 
into account.
---------------------------------------------------------------------------

    In addition, when certain organizations that engage in trading 
activities calculate their risk-based capital ratio under this appendix 
A, they must also refer to appendix E of this part, which incorporates 
capital charges for certain market risks into the risk-based capital 
ratio. When calculating their risk-based capital ratio under this 
appendix A, such organizations are required to refer to appendix E of 
this part for supplemental rules to determine qualifying and excess 
capital, calculate risk-weighted assets, calculate market risk 
equivalent assets, and calculate risk-based capital ratios adjusted for 
market risk.
    The risk-based capital guidelines also establish a schedule for 
achieving a minimum supervisory standard for the ratio of qualifying 
capital to weighted risk assets and provide for transitional 
arrangements during a phase-in period to facilitate adoption and 
implementation of the measure at the end of 1992. These interim 
standards and transitional arrangements are set forth in section IV.
    The risk-based guidelines apply on a consolidated basis to bank 
holding companies with consolidated assets of $150 million or more. For 
bank holding companies with less than $150 million in consolidated 
assets, the guidelines will be applied on a bank-only basis unless: (a) 
The parent bank holding company is engaged in nonbank activity involving 
significant leverage;\4\ or (b) the parent company has a significant 
amount of outstanding debt that is held by the general public.
---------------------------------------------------------------------------

    \4\ A parent company that is engaged in significant off-balance 
sheet activities would generally be deemed to be engaged in activities 
that involve significant leverage.
---------------------------------------------------------------------------

    The risk-based guidelines are to be used in the inspection and 
supervisory process as well as in the analysis of applications acted 
upon by the Federal Reserve. Thus, in considering an application filed 
by a bank holding company, the Federal Reserve will take into account 
the organization's risk-based capital ratio, the reasonableness of its 
capital plans, and the degree of progress it has demonstrated toward 
meeting the interim and final risk-based capital standards.
    The risk-based capital ratio focuses principally on broad categories 
of credit risk, although the framework for assigning assets and off-
balance sheet items to risk categories does incorporate elements of 
transfer risk, as well as limited instances of interest rate and market 
risk. The risk-based ratio does not, however, incorporate other factors 
that can affect an organization's financial condition. These factors 
include overall interest rate exposure; liquidity, funding and market 
risks; the quality and level of earnings; investment or loan portfolio 
concentrations; the quality of loans and investments; the effectiveness 
of loan and investment policies; and management's ability to monitor and 
control financial and operating risks.

[[Page 147]]

    In addition to evaluating capital ratios, an overall assessment of 
capital adequacy must take account of these other factors, including, in 
particular, the level and severity of problem and classified assets. For 
this reason, the final supervisory judgment on an organization's capital 
adequacy may differ significantly from conclusions that might be drawn 
solely from the level of the organization's risk-based capital ratio.
    The risk-based capital guidelines establish minimum ratios of 
capital to weighted risk assets. In light of the considerations just 
discussed, banking organizations generally are expected to operate well 
above the minimum risk-based ratios. In particular, banking 
organizations contemplating significant expansion proposals are expected 
to maintain strong capital levels substantially above the minimum ratios 
and should not allow significant diminution of financial strength below 
these strong levels to fund their expansion plans. Institutions with 
high or inordinate levels of risk are also expected to operate above 
minimum capital standards. In all cases, institutions should hold 
capital commensurate with the level and nature of the risks to which 
they are exposed. Banking organizations that do not meet the minimum 
risk-based standard, or that are otherwise considered to be inadequately 
capitalized, are expected to develop and implement plans acceptable to 
the Federal Reserve for achieving adequate levels of capital within a 
reasonable period of time.
    The Board will monitor the implementation and effect of these 
guidelines in relation to domestic and international developments in the 
banking industry. When necessary and appropriate, the Board will 
consider the need to modify the guidelines in light of any significant 
changes in the economy, financial markets, banking practices, or other 
relevant factors.

  II. Definition of Qualifying Capital for the Risk Based Capital Ratio

    An institution's qualifying total capital consists of two types of 
capital components: ``core capital elements'' (comprising Tier 1 
capital) and ``supplementary capital elements'' (comprising Tier 2 
capital). These capital elements and the various limits, restrictions, 
and deductions to which they are subject, are discussed below and are 
set forth in Attachment II.
    To qualify as an element of Tier 1 or Tier 2 capital, a capital 
instrument may not contain or be covered by any convenants, terms, or 
restrictions that are inconsistent with safe and sound banking 
practices.
    Redemptions of permanent equity or other capital instruments before 
stated maturity could have a significant impact on an organization's 
overall capital structure. Consequently, an organization considering 
such a step should consult with the Federal Reserve before redeeming any 
equity or debt capital instrument (prior to maturity) if such redemption 
could have a material effect on the level or composition of the 
organization's capital base.\5\
---------------------------------------------------------------------------

    \5\ Consultation would not ordinarily be necessary if an instrument 
were redeemed with the proceeds of, or replaced by, a like amount of a 
similar or higher quality capital instrument and the organization's 
capital position is considered fully adequate by the Federal Reserve. In 
the case of limited-life Tier 2 instruments, consultation would 
generally be obviated if the new security is of equal or greater 
maturity than the one it replaces.
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                 A. The Components of Qualifying Capital

    1. Core capital elements (Tier 1 capital). The Tier 1 component of 
an institution's qualifying capital must represent at least 50 percent 
of qualifying total capital and may consist of the following items that 
are defined as core capital elements:
    (i) Common stockholders' equity.
    (ii) Qualifying noncumulative perpetual preferred stock (including 
related surplus).
    (iii) Qualifying cumulative perpetual preferred stock (including 
related surplus), subject to certain limitations described below.
    (iv) Minority interest in the equity accounts of consolidated 
subsidiaries.
    Tier 1 capital is generally defined as the sum of core capital 
elements \6\ less goodwill and other intangible assets required to be 
deducted in accordance with section II.B.1.b. of this appendix.
---------------------------------------------------------------------------

    \6\ During the transition period and subject to certain limitations 
set forth in section IV below, Tier 1 capital may also include items 
defined as supplementary capital elements.
---------------------------------------------------------------------------

    a. Common stockholders' equity. For purposes of calculating the 
risk-based capital ratio, common stockholders' equity is limited to 
common stock; related surplus; and retained earnings, including capital 
reserves and adjustments for the cumulative effect of foreign currency 
translation, net of any treasury stock; less net unrealized holding 
losses on available-for-sale equity securities with readily determinable 
fair values. For this purpose, net unrealized holding gains on such 
equity securities and net unrealized holding gains (losses) on 
available-for-sale debt securities are not included in common 
stockholders' equity.
    b. Perpetual preferred stock. Perpetual preferred stock is defined 
as preferred stock that does not have a maturity date, that cannot be 
redeemed at the option of the holder of the instrument, and that has no 
other provisions that will require future redemption of the issue. 
Consistent with these provisions, any perpetual preferred stock with a 
feature permitting redemption at the

[[Page 148]]

option of the issuer may qualify as capital only if the redemption is 
subject to prior approval of the Federal Reserve. In general, preferred 
stock will qualify for inclusion in capital only if it can absorb losses 
while the issuer operates as a going concern (a fundamental 
characteristic of equity capital) and only if the issuer has the ability 
and legal right to defer or eliminate preferred dividends.
    Perpetual preferred stock in which the dividend is reset 
periodically based, in whole or in part, upon the banking organization's 
current credit standing (that is, auction rate perpetual preferred 
stock, including so-called Dutch auction money market, and remarketable 
preferred) will not qualify for inclusion in Tier 1 capital.\7\ Such 
instruments, however, qualify for inclusion in Tier 2 capital.
---------------------------------------------------------------------------

    \7\ Adjustable rate perpetual preferred stock (that is, perpetual 
preferred stock in which the dividend rate is not affected by the 
issuer's credit standing or financial condition but is adjusted 
periodically according to a formula based solely on general market 
interest rates) may be included in Tier 1 up to the limits specified for 
perpetual preferred stock.
---------------------------------------------------------------------------

    For bank holding companies, both cumulative and noncumulative 
perpetual preferred stock qualify for inclusion in Tier 1. However, the 
aggregate amount of cumulative perpetual preferred stock that may be 
included in a holding company's tier 1 is limited to one-third of the 
sum of core capital elements, excluding the cumulative perpetual 
preferred stock (that is, items i, ii, and iv above). Stated 
differently, the aggregate amount may not exceed 25 percent of the sum 
of all core capital elements, including cumulative perpetual preferred 
stock (that is, items, i, ii, iii, and iv above). Any cumulative 
perpetual preferred stock outstanding in excess of this limit may be 
included in tier 2 capital without any sublimits within that tier (see 
discussion below).
    While the guidelines allow for the inclusion of noncumulative 
perpetual preferred stock and limited amounts of cumulative perpetual 
preferred stock in tier 1, it is desirable from a supervisory standpoint 
that voting common equity remain the dominant form of tier 1 capital. 
Thus, bank holding companies should avoid overreliance on preferred 
stock or nonvoting equity elements within tier 1.
    c. Minority interest in equity accounts of consolidated 
subsidiaries. This element is included in Tier 1 because, as a general 
rule, it represents equity that is freely available to absorb losses in 
operating subsidiaries. While not subject to an explicit sublimit within 
Tier 1, banking organizations are expected to avoid using minority 
intererst in the equity accounts of consolidated subsidiaries as an 
avenue for introducing into their capital structures elements that might 
not otherwise qualify as Tier 1 capital or that would, in effect, result 
in an excessive reliance on preferred stock within Tier 1.
    2. Supplementary capital elements (Tier 2 capital). The Tier 2 
component of an institution's qualifying total capital may consist of 
the following items that are defined as supplementary capital elements:
    (i) Allowance for loan and lease losses (subject to limitations 
discussed below).
    (ii) Perpetual preferred stock and related surplus (subject to 
conditions discussed below).
    (iii) Hybrid capital instruments (as defined below), perpetual debt, 
and mandatory convertible debt securities.
    (iv) Term subordinated debt and intermediate-term preferred stock, 
including related surplus (subject to limitations discussed below).
    The maximum amount of Tier 2 capital that may be included in an 
organization's qualifying total capital is limited to 100 percent of 
Tier 1 capital (net of goodwill and other intangible assets required to 
be deducted in accordance with section II.B.1.b. of this appendix).
    The elements of supplementary capital are discussed in greater 
detail below.\8\
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    \8\ The Basle capital framework also provides for the inclusion of 
``undisclosed reserves'' in Tier 2. As defined in the framework, 
undisclosed reserves represent accumulated after-tax retained earnings 
that are not disclosed on the balance sheet of a banking organization. 
Apart from the fact that these reserves are not disclosed publicly, they 
are essentially of the same quality and character as retained earnings, 
and, to be included in capital, such reserves must be accepted by the 
banking organization's home supervisor. Although such undisclosed 
reserves are common in some countries, under generally accepted 
accounting principles (GAAP) and long-standing supervisory practice, 
these types of reserves are not recognized for banking organizations in 
the United States. Foreign banking organizations seeking to make 
acquisitions or conduct business in the United States would generally be 
expected to disclose publicly at least the degree or reliance on such 
reserves in meeting supervisory capital requirements.
---------------------------------------------------------------------------

    a. Allowance for loan and lease losses. Allowances for loan and 
lease losses are reserves that have been established through a charge 
against earnings to absorb future losses on

[[Page 149]]

loans or lease financing receivables. Allowances for loan and lease 
losses exclude ``allocated transfer risk reserves,'' \9\ and reserves 
created against identified losses.
---------------------------------------------------------------------------

    \9\ Allocated transfer risk reserves are reserves that have been 
established in accordance with Section 905(a) of the International 
Lending Supervision Act of 1983, 12 U.S.C. 3904(a), against certain 
assets whose value U.S. supervisory authorities have found to be 
significantly impaired by protracted transfer risk problems.
---------------------------------------------------------------------------

    During the transition period, the risk-based capital guidelines 
provide for reducing the amount of this allowance that may be included 
in an institution's total capital. Initially, it is unlimited. However, 
by year-end 1990, the amount of the allowance for loan and lease losses 
that will qualify as capital will be limited to 1.5 percent of an 
institution's weighted risk assets. By the end of the transition period, 
the amount of the allowance qualifying for inclusion in Tier 2 capital 
may not exceed 1.25 percent of weighted risk assets.\10\
---------------------------------------------------------------------------

    \10\ The amount of the allowance for loan and lease losses that may 
be included in Tier 2 capital is based on a percentage of gross weighted 
risk assets. A banking organization may deduct reserves for loan and 
lease losses in excess of the amount permitted to be included in Tier 2 
capital, as well as allocated transfer risk reserves, from the sum of 
gross weighted risk assets and use the resulting net sum of weighted 
risk assets in computing the denominator of the risk-based capital 
ratio.
---------------------------------------------------------------------------

    b. Perpetual preferred stock. Perpetual preferred stock, as noted 
above, is defined as preferred stock that has no maturity date, that 
cannot be redeemed at the option of the holder, and that has no other 
provisions that will require future redemption of the issue. Such 
instruments are eligible for inclusion in Tier 2 capital without 
limit.\11\
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    \11\ Long-term preferred stock with an original maturity of 20 years 
or more (including related surplus) will also qualify in this category 
as an element of Tier 2. If the holder of such an instrument has a right 
to require the issuer to redeem, repay, or repurchase the instrument 
prior to the original stated maturity, maturity would be defined, for 
risk-based capital purposes, as the earliest possible date on which the 
holder can put the instrument back to the issuing banking organization.
---------------------------------------------------------------------------

    c. Hybrid capital instruments, perpetual debt, and mandatory 
convertible debt securities. Hybrid capital instruments include 
instruments that are essentially permanent in nature and that have 
certain characteristics of both equity and debt. Such instruments may be 
included in Tier 2 without limit. The general criteria hybrid capital 
instruments must meet in order to qualify for inclusion in Tier 2 
capital are listed below:
    (1) The instrument must be unsecured; fully paid-up and subordinated 
to general creditors. If issued by a bank, it must also be subordinated 
to claims or depositors.
    (2) The instrument must not be redeemable at the option of the 
holder prior to maturity, except with the prior approval of the Federal 
Reserve. (Consistent with the Board's criteria for perpetual debt and 
mandatory convertible securities, this requirement implies that holders 
of such instruments may not accelerate the payment of principal except 
in the event of bankruptcy, insolvency, or reorganization.)
    (3) The instrument must be available to participate in losses while 
the issuer is operating as a going concern. (Term subordinated debt 
would not meet this requirement.) To satisfy this requirement, the 
instrument must convert to common or perpetual preferred stock in the 
event that the accumulated losses exceed the sum of the retained 
earnings and capital surplus accounts of the issuer.
    (4) The instrument must provide the option for the issuer to defer 
interest payments if: a) the issuer does not report a profit in the 
preceding annual period (defined as combined profits for the most recent 
four quarters), and b) the issuer eliminates cash dividends on common 
and preferred stock.
    Perpetual debt and mandatory convertible debt securities that meet 
the criteria set forth in 12 CFR part 225, appendix B, also qualify as 
unlimited elements of Tier 2 capital for bank holding companies.
    d. Subordinated debt and intermediate-term preferred stock. The 
aggregate amount of term subordinated debt (excluding mandatory 
convertible debt) and intermediate-term preferred stock that may be 
treated as supplementary capital is limited to 50 percent of Tier 1 
capital (net of goodwill and other intangible assets required to be 
deducted in accordance with section II.B.1.b. of this appendix). Amounts 
in excess of these limits may be issued and, while not included in the 
ratio calculation, will be taken into account in the overall assessment 
of an organization's funding and financial condition.
    Subordinated debt and intermediate-term preferred stock must have an 
original weighted average maturity of at least five years to qualify as 
supplementary capital.\12\

[[Page 150]]

(If the holder has the option to require the issuer to redeem, repay, or 
repurchase the instrument prior to the original stated maturity, 
maturity would be defined, for risk-based capital purposes, as the 
earliest possible date on which the holder can put the instrument back 
to the issuing banking organization.)
---------------------------------------------------------------------------

    \12\ Unsecured term debt issued by bank holding companies prior to 
March 12, 1988, and qualifying as secondary capital at the time of 
issuance would continue to qualify as an element of supplementary 
capital under the risk-based framework, subject to the 50 percent of 
Tier 1 capital limitation. Bank holding company term debt issued on or 
after March 12, 1988, must be subordinated in order to qualify as 
capital.
---------------------------------------------------------------------------

    In the case of subordinated debt, the instrument must be unsecured 
and must clearly state on its face that it is not a deposit and is not 
insured by a Federal agency. Bank holding company debt must be 
subordinated in right of payment to all senior indebtedness of the 
company.
    e. Discount of supplementary capital instruments. As a limited-life 
capital instrument approaches maturity it begins to take on 
characteristics of a short-term obligation. For this reason, the 
outstanding amount of term subordinated debt and any long- or 
intermediate-life, or term, preferred stock eligible for inclusion in 
Tier 2 is reduced, or discounted, as these instruments approach 
maturity: one-fifth of the original amount, less any redemptions, is 
excluded each year during the instrument's last five years before 
maturity.\13\
---------------------------------------------------------------------------

    \13\ For example, outstanding amounts of these instruments that 
count as supplementary capital include: 100 percent of the outstanding 
amounts with remaining maturities of more than five years; 80 percent of 
outstanding amounts with remaining maturities of four to five years; 60 
percent of outstanding amounts with remaining maturities of three to 
four years; 40 percent of outstanding amounts with remaining maturities 
of two to three years; 20 percent of outstanding amounts with remaining 
maturities of one to two years; and 0 percent of outstanding amounts 
with remaining maturities of less than one year. Such instruments with a 
remaining maturity of less than one year are excluded from Tier 2 
capital.
---------------------------------------------------------------------------

    f. Revaluation reserves. i. Such reserves reflect the formal balance 
sheet restatement or revaluation for capital purposes of asset carrying 
values to reflect current market values. The Federal Reserve generally 
has not included unrealized asset appreciation in capital ratio 
calculations, although it has long taken such values into account as a 
separate factor in assessing the overall financial strength of a banking 
organization.
    ii. Consistent with long-standing supervisory practice, the excess 
of market values over book values for assets held by bank holding 
companies will generally not be recognized in supplementary capital or 
in the calculation of the risk-based capital ratio. However, all bank 
holding companies are encouraged to disclose their equivalent of 
premises (building) and security revaluation reserves. The Federal 
Reserve will consider any appreciation, as well as any depreciation, in 
specific asset values as additional considerations in assessing overall 
capital strength and financial condition.

            B. Deductions from Capital and Other Adjustments

    Certain assets are deducted from an organization's capital for the 
purpose of calculating the risk-based capital ratio.\14\ These assets 
include:
---------------------------------------------------------------------------

    \14\ Any assets deducted from capital in computing the numerator of 
the ratio are not included in weighted risk assets in computing the 
denominator of the ratio.
---------------------------------------------------------------------------

    (i)(a) Goodwill--deducted from the sum of core capital elements.
    (b) Certain identifiable intangible assets, that is, intangible 
assets other than goodwill--deducted from the sum of core capital 
elements in accordance with section II.B.1.b. of this appendix.
    (ii) Investments in banking and finance subsidiaries that are not 
consolidated for accounting or supervisory purposes, and investments in 
other designated subsidiaries or associated companies at the discretion 
of the Federal Reserve--deducted from total capital components (as 
described in greater detail below).
    (iii) Reciprocal holdings of capital instruments of banking 
organizations--deducted from total capital components.
    (iv) Deferred tax assets--portions are deducted from the sum of core 
capital elements in accordance with section II.B.4. of this Appendix A.
    1. Goodwill and other intangible assets--a. Goodwill. Goodwill is an 
intangible asset that represents the excess of the purchase price over 
the fair market value of identifiable assets acquired less liabilities 
assumed in acquisitions accounted for under the purchase method of 
accounting. Any goodwill carried on the balance sheet of a bank holding 
company after December 31, 1992, will be deducted from the sum of core 
capital elements in determining Tier 1 capital for ratio calculation 
purposes. Any goodwill in existence before March 12, 1988, is 
``grandfathered'' during the transition period and is not deducted from 
core capital elements until after December 31, 1992. However, bank 
holding company goodwill acquired as a result of a merger or acquisition 
that was consummated on or after March 12, 1988, is deducted 
immediately.
    b. Other intangible assets. i. The only types of identifiable 
intangible assets that may be included in, that is, not deducted from, a 
organization's capital are readily marketable mortgage servicing rights 
and purchased credit card relationships, provided that, in

[[Page 151]]

the aggregate, the total amount of these assets included in capital does 
not exceed 50 percent of tier 1 capital. Purchased credit card 
relationships are subject to a separate sublimit of 25 percent of tier 1 
capital.\15\
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    \15\ Amounts of mortgage servicing rights and purchased credit card 
relationships in excess of these limitations, as well as all other 
identifiable intangible assets, including core deposit intangibles and 
favorable leaseholds, are to be deducted from an organization's core 
capital elements in determining tier 1 capital. However, identifiable 
intangible assets (other than mortgage servicing rights and purchased 
credit card relationships) acquired on or before February 19, 1992, 
generally will not be deducted from capital for supervisory purposes, 
although they will continue to be deducted for applications purposes.
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    ii. For purposes of calculating these limitations on mortgage 
servicing rights and purchased credit card relationships, tier 1 capital 
is defined as the sum of core capital elements, net of goodwill and all 
identifiable intangible assets other than mortgage servicing rights and 
purchased credit card relationships, regardless of the date acquired. 
This method of calculation could result in mortgage servicing rights and 
purchased credit card relationships being included in capital in an 
amount greater than 50 percent--or in purchased credit card 
relationships being included in an amount greater than 25 percent--of 
the amount of tier 1 capital used to calculate an institution's capital 
ratios. In such instances, the Federal Reserve may determine that an 
organization is operating in an unsafe and unsound manner because of 
overreliance on intangible assets in tier 1 capital.
    iii. Bank holding companies must review the book value of all 
intangible assets at least quarterly and make adjustments to these 
values as necessary. The fair market value of mortgage servicing rights 
and purchased credit card relationships also must be determined at least 
quarterly. The fair market value generally shall be determined by 
applying an appropriate market discount rate to the expected future net 
cash flows. This determination shall include adjustments for any 
significant changes in original valuation assumptions, including changes 
in prepayment estimates or account attrition rates.
    iv. Examiners will review both the book value and the fair market 
value assigned to these assets, together with supporting documentation, 
during the inspection process. In addition, the Federal Reserve may 
require, on a case-by-case basis, an independent valuation of an 
organization's intangible assets.
    v. The amount of mortgage servicing rights and purchased credit card 
relationships that a bank holding company may include in capital shall 
be the lesser of 90 percent of their fair market value, as determined in 
accordance with this section, or 100 percent of their book value, as 
adjusted for capital purposes in accordance with the instructions to the 
Consolidated Financial Statements for Bank Holding Companies (FR Y-9C 
Report). If both the application of the limits on mortgage servicing 
rights and purchased credit card relationships and the adjustment of the 
balance sheet amount for these intangibles would result in an amount 
being deducted from capital, the bank holding company would deduct only 
the greater of the two amounts from its core capital elements in 
determining tier 1 capital.
    vi. The treatment of identifiable intangible assets set forth in 
this section generally will be used in the calculation of a bank holding 
company's capital ratios for supervisory and applications purposes. 
However, in making an overall assessment of an organization's capital 
adequacy for applications purposes, the Board may, if it deems 
appropriate, take into account the quality and composition of an 
organization's capital, together with the quality and value of its 
tangible and intangible assets.
    vii. Consistent with long-standing Board policy, banking 
organizations experiencing substantial growth, whether internally or by 
acquisition, are expected to maintain strong capital positions 
substantially above minimum supervisory levels, without significant 
reliance on intangible assets.
    2. Investments in certain subsidiaries-- a. Unconsolidated banking 
or finance subsidiaries. The aggregate amount of investments in banking 
or finance subsidiaries \16\ whose financial statements are not 
consolidated for accounting or regulatory reporting purposes, regardless 
of whether the investment is made by the parent bank holding company or 
its direct or indirect subsidiaries, will be deducted from the 
consolidated parent banking organization's total capital components.\17\ 
Generally, investments for this purpose are defined as equity and debt 
capital investments and any other instruments that

[[Page 152]]

are deemed to be capital in the particular subsidiary.
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    \16\ For this purpose, a banking and finance subsidiary generally is 
defined as any company engaged in banking or finance in which the parent 
institution holds directly or indirectly more than 50 percent of the 
outstanding voting stock, or which is otherwise controlled or capable of 
being controlled by the parent institution.
    \17\ An exception to this deduction would be made in the case of 
shares acquired in the regular course of securing or collecting a debt 
previously contracted in good faith. The requirements for consolidation 
are spelled out in the instructions to the FR Y-9C Report.
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    Advances (that is, loans, extensions of credit, guarantees, 
commitments, or any other forms of credit exposure) to the subsidiary 
that are not deemed to be capital will generally not be deducted from an 
organization's capital. Rather, such advances generally will be included 
in the parent banking organization's consolidated assets and be assigned 
to the 100 percent risk category, unless such obligations are backed by 
recognized collateral or guarantees, in which case they will be assigned 
to the risk category appropriate to such collateral or guarantees. These 
advances may, however, also be deducted from the consolidated parent 
banking organization's capital if, in the judgment of the Federal 
Reserve, the risks stemming from such advances are comparable to the 
risks associated with capital investments or if the advances involve 
other risk factors that warrant such an adjustment to capital for 
supervisory purposes. These other factors could include, for example, 
the absence of collateral support.
    Inasmuch as the assets of unconsolidated banking and finance 
subsidiaries are not fully reflected in a banking organization's 
consolidated total assets, such assets may be viewed as the equivalent 
of off-balance sheet exposures since the operations of an unconsolidated 
subsidiary could expose the parent organization and its affiliates to 
considerable risk. For this reason, it is generally appropriate to view 
the capital resources invested in these unconsolidated entities as 
primarily supporting the risks inherent in these off-balance sheet 
assets, and not generally available to support risks or absorb losses 
elsewhere in the organization.
    b. Other subsidiaries and investments. The deduction of investments, 
regardless of whether they are made by the parent bank holding company 
or by its direct or indirect subsidiaries, from a consolidated banking 
organization's capital will also be applied in the case of any 
subsidiaries, that, while consolidated for accounting purposes, are not 
consolidated for certain specified supervisory or regulatory purposes, 
such as to facilitate functional regulation. For this purpose, aggregate 
capital investments (that is, the sum of any equity or debt instruments 
that are deemed to be capital) in these subsidiaries will be deducted 
from the consolidated parent banking organization's total capital 
components.\18\
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    \18\ Investments in unconsolidated subsidiaries will be deducted 
from both Tier 1 and Tier 2 capital. As a general rule, one-half (50 
percent) of the aggregate amount of capital investments will be deducted 
from the bank holding company's Tier 1 capital and one-half (50 percent) 
from its Tier 2 capital. However, the Federal Reserve may, on a case-by-
case basis, deduct a proportionately greater amount from Tier 1 if the 
risks associated with the subsidiary so warrant. If the amount 
deductible from Tier 2 capital exceeds actual Tier 2 capital, the excess 
would be deducted from Tier 1 capital. Bank holding companies' risk-
based capital ratios, net of these deductions, must exceed the minimum 
standards set forth in section IV.
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    Advances (that is, loans, extensions of credit, guarantees, 
commitments, or any other forms of credit exposure) to such subsidiaries 
that are not deemed to be capital will generally not be deducted from 
capital. Rather, such advances will normally be included in the parent 
banking organization's consolidated assets and assigned to the 100 
percent risk category, unless such obligations are backed by recognized 
collateral or guarantees, in which case they will be assigned to the 
risk category appropriate to such collateral or guarantees. These 
advances may, however, be deducted from the consolidated parent banking 
organization's capital if, in the judgment of the Federal Reserve, the 
risks stemming from such advances are comparable to the risks associated 
with capital investments or if such advances involve other risk factors 
that warrant such an adjustment to capital for supervisory purposes. 
These other factors could include, for example, the absence of 
collateral support.\19\
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    \19\ In assessing the overall capital adequacy of a banking 
organization, the Federal Reserve may also consider the organization's 
fully consolidated capital position.
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    In general, when investments in a consolidated subsidiary are 
deducted from a consolidated parent banking organization's capital, the 
subsidiary's assets will also be excluded from the consolidated assets 
of the parent banking organization in order to assess the latter's 
capital adequacy.\20\
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    \20\ If the subsidiary's assets are consolidated with the parent 
banking organization for financial reporting purposes, this adjustment 
will involve excluding the subsidiary's assets on a line-by-line basis 
from the consolidated parent organization's assets. The parent banking 
organization's capital ratio will then be calculated on a consolidated 
basis with the exception that the assets of the excluded subsidiary will 
not be consolidated with the remainder of the parent banking 
organization.
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    The Federal Reserve may also deduct from a banking organization's 
capital, on a case-by-case basis, investments in certain other 
subsidiaries in order to determine if the consolidated banking 
organization meets minimum supervisory capital requirements without 
reliance on the resources invested in such subsidiaries.

[[Page 153]]

    The Federal Reserve will not automatically deduct investments in 
other unconsolidated subsidiaries or investments in joint ventures and 
associated companies.\21\ Nonetheless, the resources invested in these 
entities, like investments in unconsolidated banking and finance 
subsidiaries, support assets not consolidated with the rest of the 
banking organization's activities and, therefore, may not be generally 
available to support additional leverage or absorb losses elsewhere in 
the banking organization. Moreover, experience has shown that banking 
organizations stand behind the losses of affiliated institutions, such 
as joint ventures and associated companies, in order to protect the 
reputation of the organization as a whole. In some cases, this has led 
to losses that have exceeded the investments in such organizations.
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    \21\ The definition of such entities is contained in the 
instructions to the Consolidated Financial Statements for Bank Holding 
Companies. Under regulatory reporting procedures, associated companies 
and joint ventures generally are defined as companies in which the 
banking organization owns 20 to 50 percent of the voting stock.
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    For this reason, the Federal Reserve will monitor the level and 
nature of such investments for individual banking organizations and may, 
on a case-by-case basis, deduct such investments from total capital 
components, apply an appropriate risk-weighted capital charge against 
the organization's proportionate share of the assets of its associated 
companies, require a line-by-line consolidation of the entity (in the 
event that the parent's control over the entity makes it the functional 
equivalent of a subsidiary), or otherwise require the organization to 
operate with a risk-based capital ratio above the minimum.
    In considering the appropriateness of such adjustments or actions, 
the Federal Reserve will generally take into account whether:
    (1) The parent banking organization has significant influence over 
the financial or managerial policies or operations of the subsidiary, 
joint venture, or associated company;
    (2) The banking organization is the largest investor in the 
affiliated company; or
    (3) Other circumstances prevail that appear to closely tie the 
activities of the affiliated company to the parent banking organization.
    3. Reciprocal holdings of banking organizations' capital 
instruments. Reciprocal holdings of banking organizations' capital 
instruments (that is, instruments that qualify as Tier 1 or Tier 2 
capital) will be deducted from an organization's total capital 
components for the purpose of determining the numerator of the risk-
based capital ratio.
    Reciprocal holdings are cross-holdings resulting from formal or 
informal arrangements in which two or more banking organizations swap, 
exchange, or otherwise agree to hold each other's capital instruments. 
Generally, deductions will be limited to intentional cross-holdings. At 
present, the Board does not intend to require banking organizations to 
deduct non-reciprocal holdings of such capital instruments.\22\ 
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    \22\ Deductions of holdings of capital securities also would not be 
made in the case of interstate ``stake out'' investments that comply 
with the Board's Policy Statement on Nonvoting Equity Investments, 12 
CFR 225.143 (Federal Reserve Regulatory Service 4-172.1; 68 Federal 
Reserve Bulletin 413 (1982)). In addition, holdings of capital 
instruments issued by other banking organizations but taken in 
satisfaction of debts previously contracted would be exempt from any 
deduction from capital. The Board intends to monitor nonreciprocal 
holdings of other banking organizations' capital instruments and to 
provide information on such holdings to the Basle Supervisors' Committee 
as called for under the Basle capital framework.
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     4. Deferred tax assets. The amount of deferred tax assets that are 
dependent upon future taxable income, net of the valuation allowance for 
deferred tax assets, that may be included in, that is, not deducted 
from, a banking organization's capital may not exceed the lesser of: (i) 
the amount of these deferred tax assets that the banking organization is 
expected to realize within one year of the calendar quarter-end date, 
based on its projections of future taxable income for that year,\23\ or 
(ii) 10 percent of tier 1 capital. The reported amount of deferred tax 
assets, net of any valuation allowance for deferred tax assets, in 
excess of the lesser of these two

[[Page 154]]

amounts is to be deducted from a banking organization's core capital 
elements in determining tier 1 capital. For purposes of calculating the 
10 percent limitation, tier 1 capital is defined as the sum of core 
capital elements, net of goodwill and all identifiable intangible assets 
other than mortgage servicing rights and purchased credit card 
relationships, before any disallowed deferred tax assets are deducted. 
There generally is no limit in tier 1 capital on the amount of deferred 
tax assets that can be realized from taxes paid in prior carryback years 
or from future reversals of existing taxable temporary differences.
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    \23\ To determine the amount of expected deferred tax assets 
realizable in the next 12 months, an institution should assume that all 
existing temporary differences fully reverse as of the report date. 
Projected future taxable income should not include net operating loss 
carryforwards to be used during that year or the amount of existing 
temporary differences a bank holding company expects to reverse within 
the year. Such projections should include the estimated effect of tax 
planning strategies that the organization expects to implement to 
realize net operating losses or tax credit carryforwards that would 
otherwise expire during the year. Institutions do not have to prepare a 
new 12 month projection each quarter. Rather, on interim report dates, 
institutions may use the future taxable income projections for their 
current fiscal year, adjusted for any significant changes that have 
occurred or are expected to occur.
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III. Procedures for Computing Weighted Risk Assets and Off-Balance Sheet 
                                  Items

                              A. Procedures

    Assets and credit equivalent amounts of off-balance sheet items of 
bank holding companies are assigned to one of several broad risk 
categories, according to the obligor, or, if relevant, the guarantor or 
the nature of the collateral. The aggregate dollar value of the amount 
in each category is then multiplied by the risk weight associated with 
that category. The resulting weighted values from each of the risk 
categories are added together, and this sum is the banking 
organization's total weighted risk assets that comprise the denominator 
of the risk-based capital ratio. Attachment I provides a sample 
calculation.
    Risk weights for all off-balance sheet items are determined by a 
two-step process. First, the ``credit equivalent amount'' of off-balance 
sheet items is determined, in most cases, by multiplying the off-balance 
sheet item by a credit conversion factor. Second, the credit equivalent 
amount is treated like any balance sheet asset and generally is assigned 
to the appropriate risk category according to the obligor, or, if 
relevant, the guarantor or the nature of the collateral.
    In general, if a particular item qualifies for placement in more 
than one risk category, it is assigned to the category that has the 
lowest risk weight. A holding of a U.S. municipal revenue bond that is 
fully guaranteed by a U.S. bank, for example, would be assigned the 20 
percent risk weight appropriate to claims guaranteed by U.S. banks, 
rather than the 50 percent risk weight appropriate to U.S. municipal 
revenue bonds.\24\
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    \24\ An investment in shares of a fund whose portfolio consists 
solely of various securities or money market instruments that, if held 
separately, would be assigned to different risk categories, is generally 
assigned to the risk category appropriate to the highest risk-weighted 
security or instrument that the fund is permitted to hold in accordance 
with its stated investment objectives. However, in no case will indirect 
holdings through shares in such funds be assigned to the zero percent 
risk category. For example, if a fund is permitted to hold U.S. 
Treasuries and commercial paper, shares in that fund would generally be 
assigned the 100 percent risk weight appropriate to commercial paper, 
regardless of the actual composition of the fund's investments at any 
particular time. Shares in a fund that may invest only in U.S. Treasury 
securities would generally be assigned to the 20 percent risk category. 
If, in order to maintain a necessary degree of short-term liquidity, a 
fund is permitted to hold an insignificant amount of its assets in 
short-term, highly liquid securities of superior credit quality that do 
not qualify for a preferential risk weight, such securities will 
generally not be taken into account in determining the risk category 
into which the banking organization's holding in the overall fund should 
be assigned. Regardless of the composition of the fund's securities, if 
the fund engages in any activities that appear speculative in nature 
(for example, use of futures, forwards, or option contracts for purposes 
other than to reduce interest rate risk) or has any other 
characteristics that are inconsistent with the preferential risk 
weighting assigned to the fund's investments, holdings in the fund will 
be assigned to the 100 percent risk category. During the examination 
process, the treatment of shares in such funds that are assigned to a 
lower risk weight will be subject to examiner review to ensure that they 
have been assigned an appropriate risk weight.
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    The terms claims and securities used in the context of the 
discussion of risk weights, unless otherwise specified, refer to loans 
or debt obligations of the entity on whom the claim is held. Assets in 
the form of stock or equity holdings in commercial or financial firms 
are assigned to the 100 percent risk category, unless some other 
treatment is explicitly permitted.

           B. Collateral, Guarantees, and Other Considerations

    1. Collateral. The only forms of collateral that are formally 
recognized by the risk-based capital framework are: Cash on deposit in a 
subsidiary lending institution; securities issued or guaranteed by the 
central governments of the OECD-based group of countries,\25\ U.S. 
Government agencies, or U.S.

[[Page 155]]

Government-sponsored agencies; and securities issued by multilateral 
lending institutions or regional development banks. Claims fully secured 
by such collateral generally are assigned to the 20 percent risk-weight 
category. Collateralized transactions meeting all the conditions 
described in section III.C.1. may be assigned a zero percent risk 
weight.
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    \25\ The OECD-based group of countries comprises all full members of 
the Organization for Economic Cooperation and Development (OECD) 
regardless of entry date, as well as countries that have concluded 
special lending arrangements with the International Monetary Fund (IMF) 
associated with the IMF's General Arrangements to Borrow, but excludes 
any country that has rescheduled its external sovereign debt within the 
previous five years. As of November 1995, the OECD included the 
following countries: Australia, Austria, Belgium, Canada, Denmark, 
Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, 
Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Portugal, 
Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United 
States; and Saudi Arabia had concluded special lending arrangements with 
the IMF associated with the IMF's General Arrangements to Borrow. A 
rescheduling of external sovereign debt generally would include any 
renegotiation of terms arising from a country's inability or 
unwillingness to meet its external debt service obligations, but 
generally would not include renegotiations of debt in the normal course 
of business, such as a renegotiation to allow the borrower to take 
advantage of a decline in interest rates or other change in market 
conditions.
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    With regard to collateralized claims that may be assigned to the 20 
percent risk-weight category, the extent to which qualifying securities 
are recognized as collateral is determined by their current market 
value. If such a claim is only partially secured, that is, the market 
value of the pledged securities is less than the face amount of a 
balance-sheet asset or an off-balance-sheet item, the portion that is 
covered by the market value of the qualifying collateral is assigned to 
the 20 percent risk category, and the portion of the claim that is not 
covered by collateral in the form of cash or a qualifying security is 
assigned to the risk category appropriate to the obligor or, if 
relevant, the guarantor. For example, to the extent that a claim on a 
private sector obligor is collateralized by the current market value of 
U.S. Government securities, it would be placed in the 20 percent risk 
category and the balance would be assigned to the 100 percent risk 
category.
    2. Guarantees. Guarantees of the OECD and non-OECD central 
governments, U.S. Government agencies, U.S. Government-sponsored 
agencies, state and local governments of the OECD-based group of 
countries, multilateral lending institutions and regional development 
banks, U.S. depository institutions, and foreign banks are also 
recognized. If a claim is partially guaranteed, that is, coverage of the 
guarantee is less than the face amount of a balance sheet asset or an 
off-balance sheet item, the portion that is not fully covered by the 
guarantee is assigned to the risk category appropriate to the obligor 
or, if relevant, to any collateral. The face amount of a claim covered 
by two types of guarantees that have different risk weights, such as a 
U.S. Government guarantee and a state guarantee, is to be apportioned 
between the two risk categories appropriate to the guarantors.
    The existence of other forms of collateral or guarantees that the 
risk-based capital framework does not formally recognize may be taken 
into consideration in evaluating the risks inherent in an organization's 
loan portfolio--which, in turn, would affect the overall supervisory 
assessment of the organization's capital adequacy.
    3. Mortgage-backed securities. Mortgage-backed securities, including 
pass-throughs and collateralized mortgage obligations (but not stripped 
mortgage-backed securities), that are issued or guaranteed by a U.S. 
Government agency or U.S. Government-sponsored agency are assigned to 
the risk weight category appropriate to the issuer or guarantor. 
Generally, a privately-issued mortgage-backed security meeting certain 
criteria set forth in the accompanying footnote \26\ is treated as 
essentially an indirect holding of the underlying assets, and is 
assigned to the same risk category as the underlying assets,

[[Page 156]]

but in no case to the zero percent risk category. Privately-issued 
mortgage-backed securities whose structures do not qualify them to be 
regarded as indirect holdings of the underlying assets are assigned to 
the 100 percent risk category. During the inspection process, privately-
issued mortgage-backed securities that are assigned to a lower risk 
weight category will be subject to examiner review to ensure that they 
meet the appropriate criteria.
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    \26\ A privately-issued mortgage-backed security may be treated as 
an indirect holding of the underlying assets provided that: (1) The 
underlying assets are held by an independent trustee and the trustee has 
a first priority, perfected security interest in the underlying assets 
on behalf of the holders of the security; (2) either the holder of the 
security has an undivided pro rata ownership interest in the underlying 
mortgage assets or the trust or single purpose entity (or conduit) that 
issues the security has no liabilities unrelated to the issued 
securities; (3) the security is structured such that the cash flow from 
the underlying assets in all cases fully meets the cash flow 
requirements of the security without undue reliance on any reinvestment 
income; and (4) there is no material reinvestment risk associated with 
any funds awaiting distribution to the holders of the security. In 
addition, if the underlying assets of a mortgage-backed security are 
composed of more than one type of asset, for example, U.S. Government-
sponsored agency securities and privately-issued pass-through securities 
that qualify for the 50 percent risk weight category, the entire 
mortgage-backed security is generally assigned to the category 
appropriate to the highest risk-weighted asset underlying the issue, but 
in no case to the zero percent risk category. Thus, in this example, the 
security would receive the 50 percent risk weight appropriate to the 
privately-issued pass-through securities.
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    While the risk category to which mortgage-backed securities is 
assigned will generally be based upon the issuer or guarantor or, in the 
case of privately-issued mortgage-backed securities, the assets 
underlying the security, any class of a mortgage-backed security that 
can absorb more than its pro rata share of loss without the whole issue 
being in default (for example, a so-called subordinated class or 
residual interest), is assigned to the 100 percent risk category. 
Furthermore, all stripped mortgage-backed securities, including 
interest-only strips (IOs), principal-only strips (POs), and similar 
instruments, are also assigned to the 100 percent risk weight category, 
regardless of the issuer or guarantor.
    4. Maturity. Maturity is generally not a factor in assigning items 
to risk categories with the exception of claims on non-OECD banks, 
commitments, and interest rate and foreign exchange rate contracts. 
Except for commitments, short-term is defined as one year or less 
remaining maturity and long-term is defined as over one year remaining 
maturity. In the case of commitments, short-term is defined as one year 
or less original maturity and long-term is defined as over one year 
original maturity.\27\
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    \27\ Through year-end 1992, remaining, rather than original, 
maturity may be used for determining the maturity of commitments.
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    5. Small Business Loans and Leases on Personal Property Transferred 
with Recourse. a. Notwithstanding other provisions of this appendix A, a 
qualifying banking organization that has transferred small business 
loans and leases on personal property (small business obligations) with 
recourse shall include in weighted-risk assets only the amount of 
retained recourse, provided two conditions are met. First, the 
transaction must be treated as a sale under GAAP and, second, the 
banking organization must establish pursuant to GAAP a non-capital 
reserve sufficient to meet the organization's reasonably estimated 
liability under the recourse arrangement. Only loans and leases to 
businesses that meet the criteria for a small business concern 
established by the Small Business Administration under section 3(a) of 
the Small Business Act are eligible for this capital treatment.
    b. For purposes of this appendix A, a banking organization is 
qualifying if it meets the criteria for well capitalized or, by order of 
the Board, adequately capitalized, as those criteria are set forth in 
the Board's prompt corrective action regulation for state member banks 
(12 CFR 208.30). For purposes of determining whether an organization 
meets these criteria, its capital ratios must be calculated without 
regard to the capital treatment for transfers of small business 
obligations with recourse specified in section III.B.5.a. of this 
appendix A. The total outstanding amount of recourse retained by a 
qualifying banking organization on transfers of small business 
obligations receiving the preferential capital treatment cannot exceed 
15 percent of the organization's total risk-based capital. By order, the 
Board may approve a higher limit.
    c. If a bank holding company ceases to be qualifying or exceeds the 
15 percent capital limitation, the preferential capital treatment will 
continue to apply to any transfers of small business obligations with 
recourse that were consummated during the time that the organization was 
qualifying and did not exceed the capital limit.

                             C. Risk Weights

    Attachment III contains a listing of the risk categories, a summary 
of the types of assets assigned to each category and the risk weight 
associated with each category, that is, 0 percent, 20 percent, 50 
percent, and 100 percent. A brief explanation of the components of each 
category follows.
    1. Category 1: zero percent. This category includes cash (domestic 
and foreign) owned and held in all offices of subsidiary depository 
institutions or in transit and gold bullion held in either a subsidiary 
depository institution's own vaults or in another's vaults on an 
allocated basis, to the extent it is offset by gold bullion 
liabilities.\28\ The category

[[Page 157]]

also includes all direct claims (including securities, loans, and 
leases) on, and the portions of claims that are directly and 
unconditionally guaranteed by, the central governments \29\ of the OECD 
countries and U.S. Government agencies,\30\ as well as all direct local 
currency claims on, and the portions of local currency claims that are 
directly and unconditionally guaranteed by, the central governments of 
non-OECD countries, to the extent that subsidiary depository 
institutions have liabilities booked in that currency. A claim is not 
considered to be unconditionally guaranteed by a central government if 
the validity of the guarantee is dependent upon some affirmative action 
by the holder or a third party. Generally, securities guaranteed by the 
U.S. Government or its agencies that are actively traded in financial 
markets, such as GNMA securities, are considered to be unconditionally 
guaranteed.
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    \28\ All other holdings of bullion are assigned to the 100 percent 
risk category.
    \29\ A central government is defined to include departments and 
ministries, including the central bank, of the central government. The 
U.S. central bank includes the 12 Federal Reserve Banks, and stock held 
in these banks as a condition of membership is assigned to the zero 
percent risk category. The definition of central government does not 
include state, provincial, or local governments; or commercial 
enterprises owned by the central government. In addition, it does not 
include local government entities or commercial enterprises whose 
obligations are guaranteed by the central government, although any 
claims on such entities guaranteed by central governments are placed in 
the same general risk category as other claims guaranteed by central 
governments. OECD central governments are defined as central governments 
of the OECD-based group of countries; non-OECD central governments are 
defined as central governments of countries that do not belong to the 
OECD-based group of countries.
    \30\ A U.S. Governmnt agency is defined as an instrumentality of the 
U.S. Government whose obligations are fully and explicitly guaranteed as 
to the timely payment of principal and interest by the full faith and 
credit of the U.S. Government. Such agencies include the Government 
National Mortgage Association (GNMA), the Veterans Administration (VA), 
the Federal Housing Administration (FHA), the Export-Import Bank (Exim 
Bank), the Overseas Private Investment Corporation (OPIC), the Commodity 
Credit Corporation (CCC), and the Small Business Administration (SBA).
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    This category also includes claims collateralized by cash on deposit 
in the subsidiary lending institution or by securities issued or 
guaranteed by OECD central governments or U.S. government agencies for 
which a positive margin of collateral is maintained on a daily basis, 
fully taking into account any change in the banking organization's 
exposure to the obligor or counterparty under a claim in relation to the 
market value of the collateral held in support of that claim.
    2. Category 2: 20 percent. This category includes cash items in the 
process of collection, both foreign and domestic; short-term claims 
(including demand deposits) on, and the portions of short-term claims 
that are guaranteed by,\31\ U.S. depository institutions \32\ and 
foreign banks \33\; and long-term claims on, and the portions of long-
term claims that are guaranteed by, U.S. depository institutions and 
OECD banks.\34\
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    \31\ Claims guaranteed by U.S. depository institutions and foreign 
banks include risk participations in both bankers acceptances and 
standby letters of credit, as well as participations in commitments, 
that are conveyed to U.S. depository institutions or foreign banks.
    \32\ U.S. depository institutions are defined to include branches 
(foreign and domestic) of federally-insured banks and depository 
institutions chartered and headquartered in the 50 states of the United 
States, the District of Columbia, Puerto Rico, and U.S. territories and 
possessions. The definition encompasses banks, mutual or stock savings 
banks, savings or building and loan associations, cooperative banks, 
credit unions, and international banking facilities or domestic banks. 
U.S.-chartered depository institutions owned by foreigners are also 
included in the definition. However, branches and agencies of foreign 
banks located in the U.S., as well as all bank holding companies, are 
excluded.
    \33\ Foreign banks are distinguished as either OECD banks or non-
OECD banks. OECD banks include banks and their branches (foreign and 
domestic) organized under the laws of countries (other than the U.S.) 
that belong to the OECD-based group of countries. Non-OECD banks include 
banks and their branches (foreign and domestic) organized under the laws 
of countries that do not belong to the OECD-based group of countries. 
For this purpose, a bank is defined as an institution that engages in 
the business of banking; is recognized as a bank by the bank supervisory 
or monetary authorities of the country of its organization or principal 
banking operations; receives deposits to a substantial extent in the 
regular course of business; and has the power to accept demand deposits.
    \34\ Long-term claims on, or guaranteed by, non-OECD banks and all 
claims on bank holding companies are assigned to the 100 percent risk 
category, as are holdings of bank-issued securities that qualify as 
capital of the issuing banks.

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[[Page 158]]

    This category also includes the portions of claims that are 
conditionally guaranteed by OECD central governments and U.S. Government 
agencies, as well as the portions of local currency claims that are 
conditionally guaranteed by non-OECD central governments, to the extent 
that subsidiary depository institutions have liabilities booked in that 
currency. In addition, this category also includes claims on, and the 
portions of claims that are guaranteed by, U.S. government-sponsored\35\ 
agencies and claims on, and the portions of claims guaranteed by, the 
International Bank for Reconstruction and Development (World Bank), the 
International Finance Corporation, the Interamerican Development Bank, 
the Asian Development Bank, the African Development Bank, the European 
Investment Bank, the European Bank for Reconstruction and Development, 
the Nordic Investment Bank, and other multilateral lending institutions 
or regional development banks in which the U.S. government is a 
shareholder or contributing member. General obligation claims on, or 
portions of claims guaranteed by the full faith and credit of, states or 
other political subdivisions of the U.S. or other countries of the 
OECD--based group are also assigned to this category.\36\
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    \35\ For this purpose, U.S. government-sponsored agencies are 
defined as agencies originally established or chartered by the Federal 
government to serve public purposes specified by the U.S. Congress but 
whose obligations are not explicitly guaranteed by the full faith and 
credit of the U.S. government. These agencies include the Federal Home 
Loan Mortgage Corporation (FHLMC), the Federal National Mortgage 
Association (FNMA), the Farm Credit System, the Federal Home Loan Bank 
System, and the Student Loan Marketing Association (SLMA). Claims on 
U.S. government-sponsored agencies include capital stock in a Federal 
Home Loan Bank that is held as a condition of membership in that Bank.
    \36\ Claims on, or guaranteed by, states or other political 
subdivisions of countries that do not belong to the OECD-based group of 
countries are placed in the 100 percent risk category.
---------------------------------------------------------------------------

    This category also includes the portions of claims (including 
repurchase transactions) collateralized by cash on deposit in the 
subsidiary lending institution or by securities issued or guaranteed by 
OECD central governments or U.S. government agencies that do not qualify 
for the zero percent risk-weight category; collateralized by securities 
issued or guaranteed by U.S. government-sponsored agencies; or 
collateralized by securities issued by multilateral lending institutions 
or regional development banks in which the U.S. government is a 
shareholder or contributing member.
    3. Category 3: 50 percent. This category includes loans fully 
secured by first liens \37\ on 1- to 4-family residential properties, 
either owner-occupied or rented, or on multifamily residential 
properties,\38\ that meet certain criteria.\39\ Loans included in this 
category must have been made in accordance with prudent underwriting 
standards;\40\ be performing in accordance with their original terms; 
and not be 90 days or more past due or carried in nonaccrual status. The 
following additional criteria must also be applied to a loan secured by 
a multifamily residential property that is included in this category: 
all principal and interest payments on the loan must have been made on 
time for at

[[Page 159]]

least the year preceding placement in this category, or in the case 
where the existing property owner is refinancing a loan on that 
property, all principal and interest payments on the loan being 
refinanced must have been made on time for at least the year preceding 
placement in this category; amortization of the principal and interest 
must occur over a period of not more than 30 years and the minimum 
original maturity for repayment of principal must not be less than 7 
years; and the annual net operating income (before debt service) 
generated by the property during its most recent fiscal year must not be 
less than 120 percent of the loan's current annual debt service (115 
percent if the loan is based on a floating interest rate) or, in the 
case of a cooperative or other not-for-profit housing project, the 
property must generate sufficient cash flow to provide comparable 
protection to the institution. Also included in this category are 
privately-issued mortgage-backed securities provided that:
---------------------------------------------------------------------------

    \37\ If a banking organization holds the first and junior lien(s) on 
a residential property and no other party holds an intervening lien, the 
transaction is treated as a single loan secured by a first lien for the 
purpose of determining the loan-to-value ratio.
    \38\ Loans that qualify as loans secured by 1- to 4-family 
residential properties or multifamily residential properties are listed 
in the instructions to the FR Y-9C Report. In addition, for risk-based 
capital purposes, loans secured by 1- to 4-family residential properties 
include loans to builders with substantial project equity for the 
construction of 1-to 4-family residences that have been presold under 
firm contracts to purchasers who have obtained firm commitments for 
permanent qualifying mortgage loans and have made substantial earnest 
money deposits.
    \39\ Residential property loans that do not meet all the specified 
criteria or that are made for the purpose of speculative property 
development are placed in the 100 percent risk category.
    \40\ Prudent underwriting standards include a conservative ratio of 
the current loan balance to the value of the property. In the case of a 
loan secured by multifamily residential property, the loan-to-value 
ratio is not conservative if it exceeds 80 percent (75 percent if the 
loan is based on a floating interest rate). Prudent underwriting 
standards also dictate that a loan-to-value ratio used in the case of 
originating a loan to acquire a property would not be deemed 
conservative unless the value is based on the lower of the acquisition 
cost of the property or appraised (or if appropriate, evaluated) value. 
Otherwise, the loan-to-value ratio generally would be based upon the 
value of the property as determined by the most current appraisal, or if 
appropriate, the most current evaluation. All appraisals must be made in 
a manner consistent with the Federal banking agencies' real estate 
appraisal regulations and guidelines and with the banking organization's 
own appraisal guidelines.
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    (1) The structure of the security meets the criteria described in 
section III(B)(3) above;
    (2) if the security is backed by a pool of conventional mortgages, 
on 1- to 4-family residential or multifamily residential properties, 
each underlying mortgage meets the criteria described above in this 
section for eligibility for the 50 percent risk category at the time the 
pool is originated;
    (3) If the security is backed by privately-issued mortgage-backed 
securities, each underlying security qualifies for the 50 percent risk 
category; and
    (4) If the security is backed by a pool of multifamily residential 
mortgages, principal and interest payments on the security are not 30 
days or more past due. Privately-issued mortgage-backed securities that 
do not meet these criteria or that do not qualify for a lower risk 
weight are generally assigned to the 100 percent risk category.
    Also assigned to this category are revenue (non-general obligation) 
bonds or similar obligations, including loans and leases, that are 
obligations of states or other political subdivisions of the U.S. (for 
example, municipal revenue bonds) or other countries of the OECD-based 
group, but for which the government entity is committed to repay the 
debt with revenues from the specific projects financed, rather than from 
general tax funds.
    Credit equivalent amounts of derivative contracts involving standard 
risk obligors (that is, obligors whose loans or debt securities would be 
assigned to the 100 percent risk category) are included in the 50 
percent category, unless they are backed by collateral or guarantees 
that allow them to be placed in a lower risk category.
    4. Category 4: 100 percent. All assets not included in the 
categories above are assigned to this category, which comprises standard 
risk assets. The bulk of the assets typically found in a loan portfolio 
would be assigned to the 100 percent category.
    This category includes long-term claims on, and the portions of 
long-term claims that are guaranteed by, non-OECD banks, and all claims 
on non-OECD central governments that entail some degree of transfer 
risk.\41\ This category also includes all claims on foreign and domestic 
private sector obligors not included in the categories above (including 
loans to nondepository financial institutions and bank holding 
companies); claims on commercial firms owned by the public sector; 
customer liabilities to the bank on acceptances outstanding involving 
standard risk claims;\42\ investments in fixed assets, premises, and 
other real estate owned; common and preferred stock of corporations, 
including stock acquired for debts previously contracted; commercial and 
consumer loans (except those assigned to lower risk categories due to 
recognized guarantees or collateral and loans for residential property 
that qualify for a lower risk weight); mortgage-backed securities that 
do not meet criteria for assignment to a lower risk weight (including 
any classes of mortgage-backed securities that can absorb more than 
their pro rata share of loss without the whole issue being in default); 
and all stripped mortgage-backed and similar securities.
---------------------------------------------------------------------------

    \41\ Such assets include all non-local currency claims on, and the 
portions of claims that are guaranteed by, non-OECD central governments 
and those portions of local currency claims on, or guaranteed by, non-
OECD central governments that exceed the local currency liabilities held 
by subsidiary depository institutions.
    \42\ Customer liabilities on acceptances outstanding involving non-
standard risk claims, such as claims on U.S. depository institutions, 
are assigned to the risk category appropriate to the identity of the 
obligor or, if relevant, the nature of the collateral or guarantees 
backing the claims. Portions of acceptances conveyed as risk 
participations to U.S. depository institutions or foreign banks are 
assigned to the 20 percent risk category appropriate to short-term 
claims guaranteed by U.S. depository institutions and foreign banks.
---------------------------------------------------------------------------

    Also included in this category are industrial development bonds and 
similar obligations issued under the auspices of states or political 
subdivisions of the OECD-based group of countries for the benefit of a 
private party or enterprise where that party or enterprise, not the 
government entity, is obligated to pay the principal and interest, and 
all obligations of states or political subdivisions of countries that do 
not belong to the OECD-based group.
    The following assets also are assigned a risk weight of 100 percent 
if they have not

[[Page 160]]

been deducted from capital: Investments in unconsolidated companies, 
joint ventures, or associated companies; instruments that qualify as 
capital issued by other banking organizations; and any intangibles, 
including those that may have been grandfathered into capital.

                       D. Off-Balance Sheet Items

    The face amount of an off-balance sheet item is incorporated into 
the risk-based capital ratio by multiplying it by a credit conversion 
factor. The resultant credit equivalent amount is assigned to the 
appropriate risk category according to the obligor, or, if relevant, the 
guarantor or the nature of the collateral.\43\ Attachment IV sets forth 
the conversion factors for various types of off-balance sheet items.
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    \43\ The sufficiency of collateral and guarantees for off-balance-
sheet items is determined by the market value of the collateral or the 
amount of the guarantee in relation to the face amount of the item, 
except for derivative contracts, for which this determination is 
generally made in relation to the credit equivalent amount. Collateral 
and guarantees are subject to the same provisions noted under section 
III.B. of this appendix A.
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    1. Items with a 100 percent conversion factor.
    a. A 100 percent conversion factor applies to direct credit 
substitutes, which include guarantees, or equivalent instruments, 
backing financial claims, such as outstanding securities, loans, and 
other financial liabilities, or that back off-balance sheet items that 
require capital under the risk-based capital framework. Direct credit 
substitutes include, for example, financial standby letters of credit, 
or other equivalent irrevocable undertakings or surety arrangements, 
that guarantee repayment of financial obligations such as: commercial 
paper, tax-exempt securities, commercial or individual loans or debt 
obligations, or standby or commercial letters of credit. Direct credit 
substitutes also include the acquisition of risk participations in 
bankers acceptances and standby letters of credit, since both of these 
transactions, in effect, constitute a guarantee by the acquiring banking 
organization that the underlying account party (obligor) will repay its 
obligation to the originating, or issuing, institution.44 (Standby 
letters of credit that are performance-related are discussed below and 
have a credit conversion factor of 50 percent.)
---------------------------------------------------------------------------

    \44\ Credit equivalent amounts of acquisitions of risk 
participations are assigned to the risk category appropriate to the 
account party obligor, or, if relevant, the nature of the collateral or 
guarantees.
---------------------------------------------------------------------------

    b. The full amount of a direct credit substitute is converted at 100 
percent and the resulting credit equivalent amount is assigned to the 
risk category appropriate to the obligor or, if relevant, the guarantor 
or the nature of the collateral. In the case of a direct credit 
substitute in which a risk participation 45 has been conveyed, the 
full amount is still converted at 100 percent. However, the credit 
equivalent amount that has been conveyed is assigned to whichever risk 
category is lower: the risk category appropriate to the obligor, after 
giving effect to any relevant guarantees or collateral, or the risk 
category appropriate to the institution acquiring the participation. Any 
remainder is assigned to the risk category appropriate to the obligor, 
guarantor, or collateral. For example, the portion of a direct credit 
substitute conveyed as a risk participation to a U.S. domestic 
depository institution or foreign bank is assigned to the risk category 
appropriate to claims guaranteed by those institutions, that is, the 20 
percent risk category.46 This approach recognizes that such 
conveyances replace the originating banking organization's exposure to 
the obligor with an exposure to the institutions acquiring the risk 
participations.47
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    \45\ That is, a participation in which the originating banking 
organization remains liable to the beneficiary for the full amount of 
the direct credit substitute if the party that has acquired the 
participation fails to pay when the instrument is drawn.
    \46\ Risk participations with a remaining maturity of over one year 
that are conveyed to non-OECD banks are to be assigned to the 100 
percent risk category, unless a lower risk category is appropriate to 
the obligor, guarantor, or collateral.
    \47\ A risk participation in bankers acceptances conveyed to other 
institutions is also assigned to the risk category appropriate to the 
institution acquiring the participation or, if relevant, the guarantor 
or nature of the collateral.
---------------------------------------------------------------------------

    c. In the case of direct credit substitutes that take the form of a 
syndication, that is, where each banking organization if obligated only 
for its pro rata share of the risk and there is no recourse to the 
originating banking organization, each banking organization will only 
include its pro rata share of the direct credit substitute in its risk-
based capital calculation.
    d. Financial standby letters of credit are distinguished from loan 
commitments (discussed below) in that standbys are irrevocable 
obligations of the banking organization to pay a third-party beneficiary 
when a customer (account party) fails to repay an outstanding loan or 
debt instrument (direct credit substitute). Performance standby letters 
of credit (performance bonds) are irrevocable obligations of the banking 
organization to pay a third-party beneficiary when a

[[Page 161]]

customer (account party) fails to perform some other contractual non-
financial obligation.
    e. The distinguishing characteristic of a standby letter of credit 
for risk-based capital purposes is the combination of irrevocability 
with the fact that funding is triggered by some failure to repay or 
perform an obligation. Thus, any commitment (by whatever name) that 
involves an irrevocable obligation to make a payment to the customer or 
to a third party in the event the customer fails to repay an outstanding 
debt obligation or fails to perform a contractual obligation is treated, 
for risk-based capital purposes, as respectively, a financial guarantee 
standby letter of credit or a performance standby.
    f. A loan commitment, on the other hand, involves an obligation 
(with or without a material adverse change or similar clause) of the 
banking organization to fund its customer in the normal course of 
business should the customer seek to draw down the commitment.
    g. Sale and repurchase agreements and asset sales with recourse (to 
the extent not included on the balance sheet) and forward agreements 
also are converted at 100 percent.48 So-called ``loan strips'' 
(that is, short-term advances sold under long-term commitments without 
direct recourse) are treated for risk-based capital purposes as assets 
sold with recourse and, accordingly, are also converted at 100 percent.
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    \48\ In regulatory reports and under GAAP, bank holding companies 
are permitted to treat some asset sales with recourse as ``true'' sales. 
For risk-based capital purposes, however, such assets sold with recourse 
and reported as ``true'' sales by bank holding companies are converted 
at 100 percent and assigned to the risk category appropriate to the 
underlying obligor or, if relevant, the guarantor or nature of the 
collateral, provided that the transactions meet the definition of assets 
sold with recourse (including assets sold subject to pro rata and other 
loss sharing arrangements), that is contained in the instructions to the 
commercial bank Consolidated Reports of Condition and Income (Call 
Report). This treatment applies to any assets, including the sale of 1- 
to 4-family and multifamily residential mortgages, sold with recourse. 
Accordingly, the entire amount of any assets transferred with recourse 
that are not already included on the balance sheet, including pools of 
1- to 4-family residential mortgages, are to be converted at 100 percent 
and assigned to the risk category appropriate to the obligor, or if 
relevant, the nature of any collateral or guarantees. The terms of a 
transfer of assets with recourse may contractually limit the amount of 
the institution's liability to an amount less than the effective risk-
based capital requirement for the assets being transferred with 
recourse. If such a transaction is recognized as a sale under GAAP, the 
amount of total capital required is equal to the maximum amount of loss 
possible under the recourse provision, less any amount held in an 
associated non-capital liability account established pursuant to GAAP to 
cover estimated probable losses under the recourse provision.
---------------------------------------------------------------------------

    h. Forward agreements are legally binding contractual obligations to 
purchase assets with certain drawdown at a specified future date. Such 
obligations include forward purchases, forward forward deposits 
placed,49 and partly-paid shares and securities; they do not 
include commitments to make residential mortgage loans or forward 
foreign exchange contracts.
---------------------------------------------------------------------------

    \49\ Forward forward deposits accepted are treated as interest rate 
contracts.
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    i. Securities lent by a banking organization are treated in one of 
two ways, depending upon whether the lender is at risk of loss. If a 
banking organization, as agent for a customer, lends the customer's 
securities and does not indemnify the customer against loss, then the 
transaction is excluded from the risk-based capital calculation. If, 
alternatively, a banking organization lends its own securities or, 
acting as agent for a customer, lends the customer's securities and 
indemnifies the customer against loss, the transaction is converted at 
100 percent and assigned to the risk weight category appropriate to the 
obligor, to any collateral delivered to the lending banking 
organization, or, if applicable, to the independent custodian acting on 
the lender's behalf. Where a banking organization is acting as agent for 
a customer in a transaction involving the lending or sale of securities 
that is collateralized by cash delivered to the banking organization, 
the transaction is deemed to be collateralized by cash on deposit in a 
subsidiary lending institution for purposes of determining the 
appropriate risk-weight category, provided that any indemnification is 
limited to no more than the difference between the market value of the 
securities and the cash collateral received and any reinvestment risk 
associated with that cash collateral is borne by the customer.
    2. Items with a 50 percent conversion factor. Transaction-related 
contingencies are converted at 50 percent. Such contingencies include 
bid bonds, performance bonds, warranties, standby letters of credit 
related to particular transactions, and performance standby letters of 
credit, as well as acquisitions of risk participation in performance 
standby letters of credit. Peformance standby letters of credit 
represent obligations backing the performance of nonfinancial or 
commercial contracts or undertakings. To the extent

[[Page 162]]

permitted by law or regulation, performance standby letters of credit 
include arrangements backing, among other things, subcontractors' and 
suppliers' performance, labor and materials contracts, and construction 
bids.
    The unused portion of commitments with an original maturity 
exceeding one year,\50\ including underwriting commitments, and 
commercial and consumer credit commitments also are converted at 50 
percent. Original maturity is defined as the length of time between the 
date the commitment is issued and the earliest date on which: (1) The 
banking organization can, at its option, unconditionally (without cause) 
cancel the commitment;\51\ and (2) the banking organization is scheduled 
to (and as a normal practice actually does) review the facility to 
determine whether or not it should be extended. Such reviews must 
continue to be conducted at least annually for such a facility to 
qualify as a short-term commitment.
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    \50\ Through year-end 1992, remaining maturity may be used for 
determining the maturity of off-balance sheet loan commitments; 
thereafter, original maturity must be used.
    \51\ In the case of consumer home equity or mortgage lines of credit 
secured by liens on 1-4 family residential properties, the bank is 
deemed able to unconditionally cancel the commitment for the purpose of 
this criterion if, at its option, it can prohibit additional extensions 
of credit, reduce the credit line, and terminate the commitment to the 
full extent permitted by relevant Federal law.
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    Commitments are defined as any legally binding arrangements that 
obligate a banking organization to extend credit in the form of loans or 
leases; to purchase loans, securities, or other assets; or to 
participate in loans and leases. They also include overdraft facilities, 
revolving credit, home equity and mortgage lines of credit, and similar 
transactions. Normally, commitments involve a written contract or 
agreement and a commitment fee, or some other form of consideration. 
Commitments are included in weighted risk assets regardless of whether 
they contain ``material adverse change'' clauses or other provisions 
that are intended to relieve the issuer of its funding obligation under 
certain conditions. In the case of commitments structured as 
syndications, where the banking organization is obligated solely for its 
pro rata share, only the banking organization's proportional share of 
the syndicated commitment is taken into account in calculating the risk-
based capital ratio.
    Facilities that are unconditionally cancellable (without cause) at 
any time by the banking organization are not deemed to be commitments, 
provided the banking organization makes a separate credit decision 
before each drawing under the facility. Commitments with an original 
maturity of one year or less are deemed to involve low risk and, 
therefore, are not assessed a capital charge. Such short-term 
commitments are defined to include the unused portion of lines of credit 
on retail credit cards and related plans (as defined in the instructions 
to the FR Y-9C Report) if the banking organization has the unconditional 
right to cancel the line of credit at any time, in accordance with 
applicable law.
    Once a commitment has been converted at 50 percent, any portion that 
has been conveyed to U.S. depository institutions or OECD banks as 
participations in which the originating banking organization retains the 
full obligation to the borrower if the participating bank fails to pay 
when the instrument is drawn, is assigned to the 20 percent risk 
category. This treatment is analogous to that accorded to conveyances of 
risk participations in standby letters of credit. The acquisition of a 
participation in a commitment by a banking organization is converted at 
50 percent and assigned to the risk category appropriate to the account 
party obligor or, if relevant, the nature of the collateral or 
guarantees.
    Revolving underwriting facilities (RUFs), note issuance facilities 
(NIFs), and other similar arrangements also are converted at 50 percent 
regardless of maturity. These are facilities under which a borrower can 
issue on a revolving basis short-term paper in its own name, but for 
which the underwriting organizations have a legally binding commitment 
either to purchase any notes the borrower is unable to sell by the roll-
over date or to advance funds to the borrower.
    3. Items with a 20 percent conversion factor. Short-term, self-
liquidating trade-related contingencies which arise from the movement of 
goods are converted at 20 percent. Such contingencies generally include 
commercial letters of credit and other documentary letters of credit 
collateralized by the underlying shipments.
    4. Items with a zero percent conversion factor. These include unused 
portions of commitments with an original maturity of one year or 
less,\52\ or which are unconditionally cancellable at any time, provided 
a separate credit decision is made before each drawing under the 
facility. Unused portions of lines of credit on retail credit cards and 
related plans are deemed to be short-term commitments if the banking 
organization has the unconditional right to cancel the line of credit at 
any time, in accordance with applicable law.
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    \52\ Through year-end 1992, remaining maturity may be used for 
determining term to maturity for off-balance sheet loan commitments; 
thereafter, original maturity must be used.

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[[Page 163]]

    E. Derivative Contracts (Interest Rate, Exchange Rate, Commodity- 
(including precious metals) and Equity-Linked Contracts)
    1. Scope. Credit equivalent amounts are computed for each of the 
following off-balance-sheet derivative contracts:
    a. Interest Rate Contracts. These include single currency interest 
rate swaps, basis swaps, forward rate agreements, interest rate options 
purchased (including caps, collars, and floors purchased), and any other 
instrument linked to interest rates that gives rise to similar credit 
risks (including when-issued securities and forward forward deposits 
accepted).
    b. Exchange Rate Contracts. These include cross-currency interest 
rate swaps, forward foreign exchange contracts, currency options 
purchased, and any other instrument linked to exchange rates that gives 
rise to similar credit risks.
    c. Equity Derivative Contracts. These include equity-linked swaps, 
equity-linked options purchased, forward equity-linked contracts, and 
any other instrument linked to equities that gives rise to similar 
credit risks.
    d. Commodity (including precious metal) Derivative Contracts. These 
include commodity-linked swaps, commodity-linked options purchased, 
forward commodity-linked contracts, and any other instrument linked to 
commodities that gives rise to similar credit risks.
    e. Exceptions. Exchange rate contracts with an original maturity of 
fourteen or fewer calendar days and derivative contracts traded on 
exchanges that require daily receipt and payment of cash variation 
margin may be excluded from the risk-based ratio calculation. Gold 
contracts are accorded the same treatment as exchange rate contracts 
except that gold contracts with an original maturity of fourteen or 
fewer calendar days are included in the risk-based ratio calculation. 
Over-the-counter options purchased are included and treated in the same 
way as other derivative contracts.
    2. Calculation of credit equivalent amounts. a. The credit 
equivalent amount of a derivative contract that is not subject to a 
qualifying bilateral netting contract in accordance with section 
III.E.3. of this appendix A is equal to the sum of (i) the current 
exposure (sometimes referred to as the replacement cost) of the 
contract; and (ii) an estimate of the potential future credit exposure 
of the contract.
    b. The current exposure is determined by the mark-to-market value of 
the contract. If the mark-to-market value is positive, then the current 
exposure is equal to that mark-to-market value. If the mark-to-market 
value is zero or negative, then the current exposure is zero. Mark-to-
market values are measured in dollars, regardless of the currency or 
currencies specified in the contract and should reflect changes in 
underlying rates, prices, and indices, as well as counterparty credit 
quality.
    c. The potential future credit exposure of a contract, including a 
contract with a negative mark-to-market value, is estimated by 
multiplying the notional principal amount of the contract by a credit 
conversion factor. Banking organizations should use, subject to examiner 
review, the effective rather than the apparent or stated notional amount 
in this calculation. The credit conversion factors are:

                                               Conversion Factors                                               
                                                  [In percent]                                                  
----------------------------------------------------------------------------------------------------------------
                                                                                         Commodity,             
                                                   Interest     Exchange                 excluding     Precious 
               Remaining maturity                    rate       rate and      Equity      precious     metals,  
                                                                  gold                     metals    except gold
----------------------------------------------------------------------------------------------------------------
One year or less...............................          0.0          1.0          6.0         10.0          7.0
Over one to five years.........................          0.5          5.0          8.0         12.0          7.0
Over five years................................          1.5          7.5         10.0         15.0          8.0
----------------------------------------------------------------------------------------------------------------

    d. For a contract that is structured such that on specified dates 
any outstanding exposure is settled and the terms are reset so that the 
market value of the contract is zero, the remaining maturity is equal to 
the time until the next reset date. For an interest rate contract with a 
remaining maturity of more than one year that meets these criteria, the 
minimum conversion factor is 0.5 percent.
    e. For a contract with multiple exchanges of principal, the 
conversion factor is multiplied by the number of remaining payments in 
the contract. A derivative contract not included in the definitions of 
interest rate, exchange rate, equity, or commodity contracts as set 
forth in section III.E.1. of this appendix A is subject to the same 
conversion factors as a commodity, excluding precious metals.
    f. No potential future exposure is calculated for a single currency 
interest rate swap in which payments are made based upon two floating 
rate indices (a so called floating/floating or basis swap); the credit 
exposure on such a contract is evaluated

[[Page 164]]

solely on the basis of the mark-to-market value.
    g. The Board notes that the conversion factors set forth above, 
which are based on observed volatilities of the particular types of 
instruments, are subject to review and modification in light of changing 
volatilities or market conditions.
    3. Netting. a. For purposes of this appendix A, netting refers to 
the offsetting of positive and negative mark-to-market values when 
determining a current exposure to be used in the calculation of a credit 
equivalent amount. Any legally enforceable form of bilateral netting 
(that is, netting with a single counterparty) of derivative contracts is 
recognized for purposes of calculating the credit equivalent amount 
provided that:
    i. The netting is accomplished under a written netting contract that 
creates a single legal obligation, covering all included individual 
contracts, with the effect that the banking organization would have a 
claim to receive, or obligation to pay, only the net amount of the sum 
of the positive and negative mark-to-market values on included 
individual contracts in the event that a counterparty, or a counterparty 
to whom the contract has been validly assigned, fails to perform due to 
any of the following events: default, insolvency, liquidation, or 
similar circumstances.
    ii. The banking organization obtains a written and reasoned legal 
opinion(s) representing that in the event of a legal challenge--
including one resulting from default, insolvency, liquidation, or 
similar circumstances--the relevant court and administrative authorities 
would find the banking organization's exposure to be the net amount 
under:
    1. The law of the jurisdiction in which the counterparty is 
chartered or the equivalent location in the case of noncorporate 
entities, and if a branch of the counterparty is involved, then also 
under the law of the jurisdiction in which the branch is located;
    2. The law that governs the individual contracts covered by the 
netting contract; and
    3. The law that governs the netting contract.
    iii. The banking organization establishes and maintains procedures 
to ensure that the legal characteristics of netting contracts are kept 
under review in the light of possible changes in relevant law.
    iv. The banking organization maintains in its files documentation 
adequate to support the netting of derivative contracts, including a 
copy of the bilateral netting contract and necessary legal opinions.
    b. A contract containing a walkaway clause is not eligible for 
netting for purposes of calculating the credit equivalent amount.53
---------------------------------------------------------------------------

    \53\ A walkaway clause is a provision in a netting contract that 
permits a non-defaulting counterparty to make lower payments than it 
would make otherwise under the contract, or no payment at all, to a 
defaulter or to the estate of a defaulter, even if the defaulter or the 
estate of the defaulter is a net creditor under the contract.
---------------------------------------------------------------------------

    c. A banking organization netting individual contracts for the 
purpose of calculating credit equivalent amounts of derivative contracts 
represents that it has met the requirements of this appendix A and all 
the appropriate documents are in the banking organization's files and 
available for inspection by the Federal Reserve. The Federal Reserve may 
determine that a banking organization's files are inadequate or that a 
netting contract, or any of its underlying individual contracts, may not 
be legally enforceable under any one of the bodies of law described in 
section III.E.3.a.ii. of this appendix A. If such a determination is 
made, the netting contract may be disqualified from recognition for 
risk-based capital purposes or underlying individual contracts may be 
treated as though they are not subject to the netting contract.
    d. The credit equivalent amount of contracts that are subject to a 
qualifying bilateral netting contract is calculated by adding (i) the 
current exposure of the netting contract (net current exposure) and (ii) 
the sum of the estimates of potential future credit exposures on all 
individual contracts subject to the netting contract (gross potential 
future exposure) adjusted to reflect the effects of the netting 
contract.54
---------------------------------------------------------------------------

    \54\ For purposes of calculating potential future credit exposure to 
a netting counterparty for foreign exchange contracts and other similar 
contracts in which notional principal is equivalent to cash flows, total 
notional principal is defined as the net receipts falling due on each 
value date in each currency.
---------------------------------------------------------------------------

    e. The net current exposure is the sum of all positive and negative 
mark-to-market values of the individual contracts included in the 
netting contract. If the net sum of the mark-to-market values is 
positive, then the net current exposure is equal to that sum. If the net 
sum of the mark-to-market values is zero or negative, then the net 
current exposure is zero. The Federal Reserve may determine that a 
netting contract qualifies for risk-based capital netting treatment even 
though certain individual contracts included under the netting contract 
may not qualify. In such instances, the nonqualifying contracts should 
be treated as individual contracts that are not subject to the netting 
contract.

[[Page 165]]

    f. Gross potential future exposure, or Agross is calculated by 
summing the estimates of potential future exposure (determined in 
accordance with section III.E.2 of this appendix A) for each individual 
contract subject to the qualifying bilateral netting contract.
    g. The effects of the bilateral netting contract on the gross 
potential future exposure are recognized through the application of a 
formula that results in an adjusted add-on amount (Anet). The 
formula, which employs the ratio of net current exposure to gross 
current exposure (NGR), is expressed as:

Anet=(0.4 x Agross)+0.6(NGR x Agross)

    h. The NGR may be calculated in accordance with either the 
counterparty-by-counterparty approach or the aggregate approach.
    i. Under the counterparty-by-counterparty approach, the NGR is the 
ratio of the net current exposure for a netting contract to the gross 
current exposure of the netting contract. The gross current exposure is 
the sum of the current exposures of all individual contracts subject to 
the netting contract calculated in accordance with section III.E.2. of 
this appendix A. Net negative mark-to-market values for individual 
netting contracts with the same counterparty may not be used to offset 
net positive mark-to-market values for other netting contracts with the 
same counterparty.
    ii. Under the aggregate approach, the NGR is the ratio of the sum of 
all of the net current exposures for qualifying bilateral netting 
contracts to the sum of all of the gross current exposures for those 
netting contracts (each gross current exposure is calculated in the same 
manner as in section III.E.3.h.i. of this appendix A). Net negative 
mark-to-market values for individual counterparties may not be used to 
offset net positive current exposures for other counterparties.
    iii. A banking organization must use consistently either the 
counterparty-by-counterparty approach or the aggregate approach to 
calculate the NGR. Regardless of the approach used, the NGR should be 
applied individually to each qualifying bilateral netting contract to 
determine the adjusted add-on for that netting contract.
    i. In the event a netting contract covers contracts that are 
normally excluded from the risk-based ratio calculation--for example, 
exchange rate contracts with an original maturity of fourteen or fewer 
calendar days or instruments traded on exchanges that require daily 
payment and receipt of cash variation margin--an institution may elect 
to either include or exclude all mark-to-market values of such contracts 
when determining net current exposure, provided the method chosen is 
applied consistently.
    4. Risk Weights. Once the credit equivalent amount for a derivative 
contract, or a group of derivative contracts subject to a qualifying 
bilateral netting contract, has been determined, that amount is assigned 
to the risk category appropriate to the counterparty, or, if relevant, 
the guarantor or the nature of any collateral.55 However, the 
maximum risk weight applicable to the credit equivalent amount of such 
contracts is 50 percent.
---------------------------------------------------------------------------

    \55\ For derivative contracts, sufficiency of collateral or 
guarantees is generally determined by the market value of the collateral 
or the amount of the guarantee in relation to the credit equivalent 
amount. Collateral and guarantees are subject to the same provisions 
noted under section III.B. of this appendix A.
---------------------------------------------------------------------------

    5. Avoidance of double counting. a. In certain cases, credit 
exposures arising from the derivative contracts covered by section 
III.E. of this appendix A may already be reflected, in part, on the 
balance sheet. To avoid double counting such exposures in the assessment 
of capital adequacy and, perhaps, assigning inappropriate risk weights, 
counterparty credit exposures arising from the derivative instruments 
covered by these guidelines may need to be excluded from balance sheet 
assets in calculating a banking organization's risk-based capital 
ratios.
    b. Examples of the calculation of credit equivalent amounts for 
contracts covered under this section III.E. are contained in Attachment 
V of this appendix A.

              IV. Minimum Supervisory Ratios and Standards

    The interim and final supervisory standards set forth below specify 
minimum supervisory ratios based primarily on broad credit risk 
considerations. As noted above, the risk-based ratio does not take 
explicit account of the quality of individual asset portfolios or the 
range of other types of risks to which banking organizations may be 
exposed, such as interest rate, liquidity, market or operational risks. 
For this reason, banking organizations are generally expected to operate 
with capital positions well above the minimum ratios.
    Institutions with high or inordinate levels of risk are expected to 
operate well above minimum capital standards. Banking organizations 
experiencing or anticipating significant growth are also expected to 
maintain capital, including tangible capital positions, well above the 
minimum levels. For example, most such organizations generally have 
operated at capital levels ranging from 100 to 200 basis points above 
the stated minimums. Higher capital ratios could be required if 
warranted by the particular circumstances or risk profiles of individual 
banking organizations. In all cases, organizations should hold capital 
commensurate with the level

[[Page 166]]

and nature of all of the risks, including the volume and severity of 
problem loans, to which they are exposed.
    Upon adoption of the risk-based framework, any organization that 
does not meet the interim or final supervisory ratios, or whose capital 
is otherwise considered inadequate, is expected to develop and implement 
a plan acceptable to the Federal Reserve for achieving an adequate level 
of capital consistent with the provisions of these guidelines or with 
the special circumstances affecting the individual organization. In 
addition, such organizations should avoid any actions, including 
increased risk-taking or unwarranted expansion, that would lower or 
further erode their capital positions.

           A. Minimum Risk-Based Ratio After Transition Period

    As reflected in Attachment VI, by year-end 1992, all bank holding 
companies \56\ should meet a minimum ratio of qualifying total capital 
to weighted risk assets of 8 percent, of which at least 4.0 percentage 
points should be in the form of Tier 1 capital. For purposes of section 
IV.A., Tier 1 capital is defined as the sum of core capital elements 
less goodwill and other intangible assets required to be deducted in 
accordance with section II.B.1.b. of this appendix. The maximum amount 
of supplementary capital elements that qualifies as Tier 2 capital is 
limited to 100 percent of Tier 1 capital. In addition, the combined 
maximum amount of subordinated debt and intermediate-term preferred 
stock that qualifies as Tier 2 capital is limited to 50 percent of Tier 
1 capital. The maximum amount of the allowance for loan and lease losses 
that qualifies as Tier 2 capital is limited to 1.25 percent of gross 
weighted risk assets. Allowances for loan and lease losses in excess of 
this limit may, of course, be maintained, but would not be included in 
an organization's total capital. The Federal Reserve will continue to 
require bank holding companies to maintain reserves at levels fully 
sufficient to cover losses inherent in their loan portfolios.
---------------------------------------------------------------------------

    \56\ As noted in section I above, bank holding companies with less 
than $150 million in consolidated assets would generally be exempt from 
the calculation and analysis of risk-based ratios on a consolidated 
holding company basis, subject to certain terms and conditions.
---------------------------------------------------------------------------

    Qualifying total capital is calculated by adding Tier 1 capital and 
Tier 2 capital (limited to 100 percent of Tier 1 capital) and then 
deducting from this sum certain investments in banking or finance 
subsidiaries that are not consolidated for accounting or supervisory 
purposes, reciprocal holdings of banking organizations' capital 
securities, or other items at the direction of the Federal Reserve. The 
conditions under which these deductions are to be made and the 
procedures for making the deductions are discussed above in section 
II(B).

                       B. Transition Arrangements

    The transition period for implementing the risk-based capital 
standard ends on December 31, 1992.\57\ Initially, the risk-based 
capital guidelines do not establish a minimum level of capital. However, 
by year-end 1990, banking organizations are expected to meet a minimum 
interim target ratio for qualifying total capital to weighted risk 
assets of 7.25 percent, at least one-half of which should be in the form 
of Tier 1 capital. For purposes of meeting the 1990 interim target, the 
amount

[[Page 167]]

of loan loss reserves that may be included in capital is limited to 1.5 
percent of weighted risk assets and up to 10 percent of an 
organization's Tier 1 capital may consist of supplementary capital 
elements. Thus, the 7.25 percent interim target ratio implies a minimum 
ratio of Tier 1 capital to weighted risk assets of 3.6 percent (one-half 
of 7.25) and a minimum ratio of core capital elements to weighted risk 
assets ratio of 3.25 percent (nine-tenths of the Tier 1 capital ratio).
---------------------------------------------------------------------------

    \57\ The Basle capital framework does not establish an initial 
minimum standard for the risk-based capital ratio before the end of 
1990. However, for the purpose of calculating a risk-based capital ratio 
prior to year-end 1990, no sublimit is placed on the amount of the 
allowance for loan and lease losses includable in Tier 2. In addition, 
this framework permits, under temporary transition arrangements, a 
certain percentage of an organization's Tier 1 capital to be made up of 
supplementary capital elements. In particular, supplementary elements 
may constitute 25 percent of an organization's Tier 1 capital (before 
the deduction of goodwill) up to the end of 1990; from year-end 1990 up 
to the end of 1992, this allowable percentage of supplementary elements 
in Tier 1 declines to 10 percent of Tier 1 (before the deduction of 
goodwill). Beginning on December 31, 1992, supplementary elements may 
not be included in Tier 1. The amount of subordinated debt and 
intermediate-term preferred stock temporarily included in Tier 1 under 
these arrangements will not be subject to the sublimit on the amount of 
such instruments includable in Tier 2 capital. While the transitional 
arrangements allow an organization to include supplementary elements in 
Tier 1 on a temporary basis, the amount of perpetual preferred stock 
that may be included in a bank holding company's Tier 1--both during and 
after the transition period--is, as described in section II(A), based 
solely upon a specified percentage of the organization's permanent core 
capital elements (that is, common equity, perpetual preferred stock, and 
minority interest in the equity of consolidated subsidiaries), not upon 
total Tier 1 elements that temporarily include Tier 2 items. Once the 
amount of supplementary items that may temporarily qualify as Tier 1 
elements is determined, goodwill must be deducted from the sum of this 
amount and the amount of the organization's permanent core capital 
elements for the purpose of calculating Tier 1 (net of goodwill), Tier 
2, and total capital.
---------------------------------------------------------------------------

    Through year-end 1990, banking organizations have the option of 
complying with the minimum 7.25 percent year-end 1990 risk-based capital 
standard, in lieu of the minimum 5.5 percent primary and 6 percent total 
capital to total assets ratios set forth in appendix B of this part. In 
addition, as more fully set forth in appendix D to this part, banking 
organizations are expected to maintain a minimum ratio of Tier 1 capital 
to total assets during this transition period.

  Attachment I--Sample Calculation of Risk-Based Capital Ratio for Bank 
                            Holding Companies                           
Example of a banking organization with $6,000 in total capital and the  
 following assets and off-balance sheet items:                          
Balance Sheet Assets:                                                   
    Cash...................................................       $5,000
    U.S. Treasuries........................................       20,000
    Balances at domestic banks.............................        5,000
    Loans secured by first liens on 1-4 family residential              
     properties............................................        5,000
    Loans to private corporations..........................       65,000
                                                            ------------
      Total Balance Sheet Assets...........................     $100,000
                                                            ============
Off-Balance Sheet Items:                                                
    Standby letters of credit (``SLCs'') backing general                
     obligation debt issues of U.S. municipalities                      
     (``GOs'').............................................      $10,000
    Long-term legally binding commitments to private                    
     corporations..........................................       20,000
                                                            ------------
      Total Off/Balance Sheet Items........................      $30,000
This bank holding company's total capital to total assets (leverage)    
 ratio would be: ($6,000/$100,000)=6.00%.                               
To compute the bank holding company's weighted risk assets:             
1. Compute the credit equivalent amount of each off-balance sheet       
 (``OBS'') item.                                                        


                                                                                                                
                                                                                                        Credit  
                             OBS item                                Face value      Conversion       equivalent
                                                                                       factor           amount  
SLCS backing municipal GOs........................................      $10,000                                 
                                                                                 x         1.00   =      $10,000
Long-term commitments to private corporations.....................      $20,000                                 
                                                                                 x         0.50   =      $10,000
2. Multiply each balance sheet asset and the credit equivalent amount of each                                   
 OBS item by the appropriate risk weight.                                                                       
0% Category:                                                                                                    
    Cash..........................................................        5,000                                 
    U.S. Treasuries...............................................       20,000                                 
                                                                   -------------                                
                                                                         25,000                                 
                                                                                 x            0   =            0
                                                                   =============                                
20% Category:                                                                                                   
    Balances at domestic banks....................................        5,000                                 
    Credit equivalent amounts of SLCs backing GOs of U.S.                                                       
     municipalities...............................................       10,000                                 
                                                                   --------------                               
                                                                         15,000                                 
                                                                                 x          .20   =       $3,000
                                                                   =============                                
50% Category:                                                                                                   
    Loans secured by first liens on 1-4 family residential                                                      
     properties...................................................        5,000                                 
                                                                                 x          .50   =       $2,500
                                                                   =============                                
100% Category:                                                                                                  
    Loans to private corporations.................................       65,000                                 
    Credit equivalent amounts of long-term commitments to private                                               
     corporations.................................................       10,000                                 
                                                                   -------------                                
                                                                        $75,000                                 
                                                                                 x         1.00   =       75,000
                                                                                                    ------------
      Total Risk-weighted Assets..................................                                              
                                                                                                          80,500
This bank holding company's ratio of total capital to weighted risk assets (risk-based capital ratio) would be: 
 ($6,000/$80,500)=7.45%                                                                                         


Attachment II--Summary Definition of Qualifying Capital for Bank Holding
             Companies* (Using the Year-End 1992 Standards)             
------------------------------------------------------------------------
                                            Minimum requirements after  
               Components                       transition period       
------------------------------------------------------------------------
Core Capital (Tier 1)..................  Must equal or exceed 4% of     
                                          weighted risk assets.         
Common stockholders' equity............  No limit.                      
Qualifying noncumulative perpetual       No limit.                      
 preferred stock.                                                       
Qualifying cumulative perpetual          Limited to 25% of the sum of   
 preferred stock.                         common stock, qualifying      
                                          perpetual preferred stock, and
                                          minority interests.           

[[Page 168]]

                                                                        
Minority interest in equity accounts of  Organizations should avoid     
 consolidated subsidiaries.               using minority interests to   
                                          introduce elements not        
                                          otherwise qualifying for Tier 
                                          1 capital.                    
Less: Goodwill and other intangible                                     
 assets required to be deducted from                                    
 capital.\1\.                                                           
Supplementary Capital (Tier 2).........  Total of Tier 2 is limited to  
                                          100% of Tier 1.\2\            
Allowance for loan and lease losses....  Limited to 1.25% of weighted   
                                          risk assets.\2\               
Perpetual preferred stock..............  No limit within Tier 2.        
Hybrid capital instruments, perpetual    No limit within Tier 2.        
 debt, and mandatory convertible                                        
 securities.                                                            
Subordinated debt and intermediate-term  Subordinated debt and          
 preferred stock (original weighted       intermediate-term preferred   
 average maturity of 5 years or more)     stock are limited to 50% of   
                                          Tier 1;\3\ amortized for      
                                          capital purposes as they      
                                          approach maturity.            
Revaluation reserves (equity and         Not included; organizations    
 building).                               encouraged to disclose; may be
                                          evaluated on a case-by-case   
                                          basis for international       
                                          comparisons; and taken into   
                                          account in making an overall  
                                          assessment of capital.        
Deductions (from sum of Tier 1 and Tier                                 
 2):                                                                    
    Investments in unconsolidated        As a general rule, one-half of 
     subsidiaries.                        the aggregate investments will
                                          be deducted from Tier 1       
                                          capital and one-half from Tier
                                          2 capital.\4\                 
    Reciprocal holdings of banking                                      
     organizations' capital securities                                  
    Other deductions (such as other      On a case-by-case basis or as a
     subsidiaries or joint ventures) as   matter of policy after formal 
     determined by supervisory            rulemaking.                   
     authority                                                          
Total Capital (Tier 1+Tier 2-            Must equal or exceed 8% of     
 Deductions).                             weighted risk assets.         
------------------------------------------------------------------------
* See discussion in section II of the guidelines for a complete         
  description of the requirements for, and the limitations on, the      
  components of qualifying capital.                                     
                                                                        
\1\ Requirements for the deduction of other intangible assets are set   
  forth in section II.B.1.b. of this appendix.                          
\2\ Amounts in excess of limitations are permitted but do not qualify as
  capital.                                                              
\3\ Amounts in excess of limitations are permitted but do not qualify as
  capital.                                                              
\4\ A proportionately greater amount may be deducted from Tier 1 capital
  if the risks associated with the subsidiary so warrant.               

  Attachment III--Summary of Risk Weights and Risk Categories for Bank 
                            Holding Companies

                        Category 1: Zero Percent

    1. Cash (domestic and foreign) held in subsidiary depository 
institutions or in transit.
    2. Balances due from Federal Reserve Banks (including Federal 
Reserve Bank stock) and central banks in other OECD countries.
    3. Direct claims on, and the portions of claims that are 
unconditionally guaranteed by, the U.S. Treasury and U.S. Government 
agencies \1\ and the central governments of other OECD countries, and 
local currency claims on, and the portions of local currency claims that 
are unconditionally guaranteed by, the central governments of non-OECD 
countries (including the central banks of non-OECD countries), to the 
extent that subsidiary depository institutions have liabilities booked 
in that currency.
---------------------------------------------------------------------------

    \1\ For the purpose of calculating the risk-based capital ratio, a 
U.S. Government agency is defined as an instrumentality of the U.S. 
Government whose obligations are fully and explicitly guaranteed as to 
the timely payment of principal and interest by the full faith and 
credit of the U.S. Government.
---------------------------------------------------------------------------

    4. Gold bullion held in the vaults of a subsidiary depository 
institution or in another's vaults on an allocated basis, to the extent 
offset by gold bullion liabilities.
    5. Claims collateralized by cash on deposit in the subsidiary 
lending institution or by securities issued or guaranteed by OECD 
central governments or U.S. government agencies for which a positive 
margin of collateral is maintained on a daily basis, fully taking into 
account any change in the bank's exposure to the obligor or counterparty 
under a claim in relation to the market value of the collateral held in 
support of that claim.

                         Category 2: 20 Percent

    1. Cash items in the process of collection.
    2. All claims (long- or short-term) on, and the portions of claims 
(long- or short-term) that are guaranteed by, U.S. depository 
institutions and OECD banks.
    3. Short-term claims (remaining maturity of one year or less) on, 
and the portions of short-term claims that are guaranteed by, non-OECD 
banks.
    4. The portions of claims that are conditionally guaranteed by the 
central governments of OECD countries and U.S. Government agencies, and 
the portions of local currency claims that are conditionally guaranteed 
by the central governments of non- 

[[Page 169]]

OECD countries, to the extent that subsidiary depository institutions 
have liabilities booked in that currency.
    5. Claims on, and the portions of claims that are guaranteed by, 
U.S. Government-sponsored agencies.\2\
---------------------------------------------------------------------------

    \2\ For the purpose of calculating the risk-based capital ratio, a 
U.S. Government-sponsored agency is defined as an agency originally 
established or chartered to serve public purposes specified by the U.S. 
Congress but whose obligations are not explicitly guaranteed by the full 
faith and credit of the U.S. Government.
---------------------------------------------------------------------------

    6. General obligation claims on, and the portions of claims that are 
guaranteed by the full faith and credit of, local governments and 
political subdivisions of the U.S. and other OECD local governments.
    7. Claims on, and the portions of claims that are guaranteed by, 
official multilateral lending institutions or regional development 
banks.
    8. The portions of claims that are collateralized\3\ by cash on 
deposit in the subsidiary lending institution or by securities issued or 
guaranteed by the U.S. Treasury, the central governments of other OECD 
countries, and U.S. government agencies that do not qualify for the zero 
percent risk-weight category, or that are collateralized by securities 
issued or guaranteed by U.S. government-sponsored agencies.
---------------------------------------------------------------------------

    \3\ The extent of collateralization is determined by current market 
value.
---------------------------------------------------------------------------

    9. The portions of claims that are collateralized \3\ by securities 
issued by official multilateral lending institutions or regional 
development banks.
---------------------------------------------------------------------------

    \3\ The extent of collateralization is determined by current market 
value.
---------------------------------------------------------------------------

    10. Certain privately-issued securities representing indirect 
ownership of mortgage-backed U.S. Government agency or U.S. Government-
sponsored agency securities.
    11. Investments in shares of a fund whose portfolio is permitted to 
hold only securities that would qualify for the zero or 20 percent risk 
categories.

                         Category 3: 50 Percent

    1. Loans fully secured by first liens on 1- to 4-family residential 
properties or on multifamily residential properties that have been made 
in accordance with prudent underwriting standards, that are performing 
in accordance with their original terms, that are not past due or in 
nonaccrual status, and that meet other qualifying criteria, and certain 
privately-issued mortgage-backed securities representing indirect 
ownership of such loans. (Loans made for speculative purposes are 
excluded.)
    2. Revenue bonds or similar claims that are obligations of U.S. 
state or local governments, or other OECD local governments, but for 
which the government entity is committed to repay the debt only out of 
revenues from the facilities financed.
    3. Credit equivalent amounts of interest rate and foreign exchange 
rate related contracts, except for those assigned to a lower risk 
category.

                         Category 4: 100 Percent

    1. All other claims on private obligors.
    2. Claims on, or guaranteed by, non-OECD foreign banks with a 
remaining maturity exceeding one year.
    3. Claims on, or guaranteed by, non-OECD central governments that 
are not included in item 3 of Category 1 of item 4 of Category 2; all 
claims on non-OECD state or local governments.
    4. Obligations issued by U.S. state of local governments, or other 
OECD local governments (including industrial development authorities and 
similar entities), repayable solely by a private party or enterprise.
    5. Premises, plant, and equipment; other fixed assets; and other 
real estate owned.
    6. Investments in any unconsolidated subsidiaries, joint ventures, 
or associated companies--if not deducted from capital.
    7. Instruments issued by other banking organizations that qualify as 
capital--if not deducted from capital.
    8. Claims on commercial firms owned by a government.
    9. All other assets, including any intangible assets that are not 
deducted from capital.

Attachment IV--Credit Conversion Factors for Off-Balance-Sheet Items for 
                         Bank Holding Companies

                      100 Percent Conversion Factor

    1. Direct credit substitutes. (These include general guarantees of 
indebtedness and all guarantee-type instruments, including standby 
letters of credit backing the financial obligations of other parties.)
    2. Risk participations in bankers acceptances and direct credit 
substitutes, such as standby letters of credit.
    3. Sale and repurchase agreements and assets sold with recourse that 
are not included on the balance sheet.
    4. Forward agreements to purchase assets, including financing 
facilities, on which drawdown is certain.
    5. Securities lent for which the banking organization is at risk.

                      50 Percent Conversion Factor

    1. Transaction-related contingencies. (These include bid-bonds, 
performance bonds, warranties, and standby letters of credit

[[Page 170]]

backing the nonfinancial performance of other parties.)
    2. Unused portions of commitments with an original maturity 
exceeding one year, including underwriting commitments and commercial 
credit lines.
    3. Revolving underwriting facilities (RUFs), note issuance 
facilities (NIFs), and similar arrangements.

                      20 Percent Conversion Factor

    Short-term, self-liquidating trade-related contingencies, including 
commercial letters of credit.

                     Zero Percent Conversion Factor

    Unused portions of commitments with an original maturity of one year 
or less, or which are unconditionally cancellable at any time, provided 
a separate credit decision is made before each drawing.

               Credit Conversion for Derivative Contracts

    1. The credit equivalent amount of a derivative contract is the sum 
of the current credit exposure of the contract and an estimate of 
potential future increases in credit exposure. The current exposure is 
the positive mark-to-market value of the contract (or zero if the mark-
to-market value is zero or negative). For derivative contracts that are 
subject to a qualifying bilateral netting contract, the current exposure 
is, generally, the net sum of the positive and negative mark-to-market 
values of the contracts included in the netting contract (or zero if the 
net sum of the mark-to-market values is zero or negative). The potential 
future exposure is calculated by multiplying the effective notional 
amount of a contract by one of the following credit conversion factors, 
as appropriate:

                                               Conversion Factors                                               
                                                  [In percent]                                                  
----------------------------------------------------------------------------------------------------------------
                                                                                         Commodity,             
                                                   Interest     Exchange                 excluding     Precious 
               Remaining maturity                    rate       rate and      Equity      precious     metals,  
                                                                  gold                     metals    except gold
----------------------------------------------------------------------------------------------------------------
One year or less...............................          0.0          1.0          6.0         10.0          7.0
Over one to five years.........................          0.5          5.0          8.0         12.0          7.0
Over five years................................          1.5          7.5         10.0         15.0          8.0
----------------------------------------------------------------------------------------------------------------

    For contracts subject to a qualifying bilateral netting contract, 
the potential future exposure is, generally, the sum of the individual 
potential future exposures for each contract included under the netting 
contract adjusted by the application of the following formula:

Anet=(0.4 x Agross)+0.6(NGR x Agross)
    NGR is the ratio of net current exposure to gross current exposure.
    2. No potential future exposure is calculated for single currency 
interest rate swaps in which payments are made based upon two floating 
indices, that is, so called floating/floating or basis swaps. The credit 
exposure on these contracts is evaluated solely on the basis of their 
mark-to-market value. Exchange rate contracts with an original maturity 
of fourteen or fewer days are excluded. Instruments traded on exchanges 
that require daily receipt and payment of cash variation margin are also 
excluded.

                  Attachment V--Calculating Credit Equivalent Amounts for Derivative Contracts                  
----------------------------------------------------------------------------------------------------------------
                                      Notional                 Potential                  Current       Credit  
         Type of Contract            principal    Conversion    exposure     Mark-to-     exposure    equivalent
                                       amount       factor     (dollars)      market     (dollars)      amount  
----------------------------------------------------------------------------------------------------------------
(1) 120-day forward foreign                                                                                     
 exchange.........................    5,000,000          .01       50,000      100,000      100,000      150,000
(2) 4-year forward foreign                                                                                      
 exchange.........................    6,000,000          .05      300,000     -120,000            0      300,000
(3) 3-year single-currency fixed &                                                                              
 floating interest rate swap......   10,000,000         .005       50,000      200,000      200,000      250,000
(4) 6-month oil swap..............   10,000,000          .10    1,000,000     -250,000            0    1,000,000
(5) 7-year cross-currency floating                                                                              
 & floating interest rate swap....   20,000,000         .075    1,500,000   -1,500,000            0    1,500,000
      Total.......................  ...........  ...........    2,900,000            +      300,000    3,200,000
----------------------------------------------------------------------------------------------------------------

    a. If contracts (1) through (5) above are subject to a qualifying 
bilateral netting contract, then the following applies:

------------------------------------------------------------------------
                                    Potential                   Credit  
             Contract                 future    Net current   equivalent
                                     exposure     exposure      amount  
------------------------------------------------------------------------
(1)..............................       50,000  ...........  ...........

[[Page 171]]

                                                                        
(2)..............................      300,000  ...........  ...........
(3)..............................       50,000  ...........  ...........
(4)..............................    1,000,000  ...........  ...........
(5)..............................    1,500,000  ...........  ...........
      Total......................    2,900,000           +0    2,900,000
------------------------------------------------------------------------
Note: The total of the mark-to-market values from the first table is-   
  $1,370,000. Since this is a negative amount the net current exposure  
  is zero.                                                              

    b. To recognize the effects of bilateral netting on potential future 
exposure the following formula applies:

Anet=(0.4 x Agross)+0.6(NGR x Agross)

    c. In the above example, where the net current exposure is zero, the 
credit equivalent amount would be calculated as follows:

NGR=0=(0/300,000)
Anet=(0.4 x $2,900,000)+.6(0 x $2,900,000)
Anet=$1,160,000

    The credit equivalent amount is $1,160,000+0=$1,160,000.
    d. If the net current exposure was a positive number, for example 
$200,000, the credit equivalent would be calculated as follows:

NGR=.67=($200,000/$300,000)
Anet=(0.4 x $2,900,000)+0.6(.67 x $2,900,000)
Anet=$2,325,800

    The credit equivalent amount would be 
$2,325,800+$200,000=$2,525,800.

                                             Attachment VI--Summary                                             
----------------------------------------------------------------------------------------------------------------
                                         Transitional arrangements for bank holding                             
                                                         companies                      Final arrangement--Year-
                                     -------------------------------------------------          end 1992        
                                              Initial               Year-end 1990                               
----------------------------------------------------------------------------------------------------------------
1. Minimum standard of total capital  None...................  7.25%.................  8.0%.                    
 to weighted risk assets.                                                                                       
2. Definition of Tier 1 capital.....  Common equity,           Common equity,          Common equity, qualifying
                                       qualifying cum. and      qualifying cum. and     noncumulative and       
                                       noncum. perpetual        noncum. perpetual       cumulative perpetual    
                                       preferred stock,\1\      preferred stock,\1\     preferred stock,\1\ and 
                                       and minority             and minority            minority interests less 
                                       interests, plus          interests, plus         goodwill and other      
                                       supplementary            supplementary           intangible assets       
                                       elements,\2\ less        elements,\4\ less       required to be deducted 
                                       goodwill.\3\.            goodwill.\3\.           from capital.\3\        
3. Minimum standard of Tier 1         None...................  3.625%................  4.0%.                    
 capital to weighted risk assets.                                                                               
4. Minimum standard of stockholders'  None...................  3.25%.................  4.0%.                    
 equity to weighted risk assets.                                                                                
5. Limitations on supplementary                                                                                 
 capital elements:                                                                                              
    a. Allowance for loan and lease   No limit within Tier 2.  1.5% of weighted risk   1.25% of weighted risk   
     losses.                                                    assets.                 assets.                 
    b. Perpetual preferred stock....  No limit within Tier 2.  No limit within Tier 2  No limit within Tier 2.  
    c. Hybrid capital instruments,    No limit within Tier 2.  No limit within Tier 2  No limit within Tier 2.  
     perpetual debt, and mandatory                                                                              
     convertibles.                                                                                              
    d. Subordinated debt and          Combined maximum of 50%  Combined maximum of     Combined maximum of 50%  
     intermediate term preferred       of Tier 1.               50% of Tier 1.          of Tier 1.              
     stock.                                                                                                     
    c. Total qualifying Tier 2        May not exceed Tier 1    May not exceed Tier 1   May not exceed Tier 1    
     capital.                          capital.                 capital.                capital.                
6. Definition of total capital......  Tier 1 plus Tier 2       Tier 1 plus Tier 2      Tier 1 plus Tier 2 less: 
                                       less:                    less:                                           
                                        --reciprocal holdings    --reciprocal            --reciprocal holdings  
                                         of banking               holdings of banking     of banking            
                                         organizations'           organizations'          organizations' capital
                                         capital instruments.     capital instruments.    instruments           
                                        --investments in         --investments in        --investments in       
                                         unconsolidated           unconsolidated          unconsolidated        
                                         subsidiaries.\5\.        subsidiaries.\5\.       subsidiaries.\5\      
----------------------------------------------------------------------------------------------------------------
\1\ Cumulative perpetual preferred stock is limited within tier 1 to 25% of the sum of common stockholders'     
  equity, qualifying perpetual preferred stock, and minority interests.                                         
\2\ Supplementary elements may be included in the Tier 1 up to 25% of the sum of Tier 1 plus goodwill.          
\3\ Requirements for the deduction of other intangible assets are set forth in section II.B.1.b. of this        
  appendix.                                                                                                     
\4\ Supplementary elements may be included in Tier 1 up to 10% of the sum of Tier 1 plus goodwill.              

[[Page 172]]

                                                                                                                
\5\ As a general rule, one-half (50%) of the aggregate amount of investments will be deducted from Tier 1       
  capital and one-half (50%) from Tier 2 capital. A proportionally greater amount may be deducted from Tier 1   
  capital if the risks associated with the subsidiary so warrant.                                               


[Reg. Y, 54 FR 4209, Jan. 27, 1989; 54 FR 12531, Mar. 27, 1989, as 
amended at 55 FR 32832, Aug. 10, 1990; 56 FR 51156, Oct. 10, 1991; 57 FR 
2012, Jan. 17, 1992; 57 FR 60720, Dec. 22, 1992; 57 FR 62180, 62182, 
Dec. 30, 1992; 58 FR 7980, 7981, Feb. 11, 1993; 58 FR 68739, Dec. 29, 
1993; 59 FR 62993, Dec. 7, 1994; 59 FR 63244, Dec. 8, 1994; 59 FR 65926, 
Dec. 22, 1994; 60 FR 8182, Feb. 13, 1995; 60 FR 45616, Aug. 31, 1995; 60 
FR 46179, 46181, Sept. 5, 1995; 60 FR 39230, 39231, Aug. 1, 1995; 60 FR 
66045, Dec. 20, 1995; 61 FR 47372, Sept. 6, 1996]

  Appendix B to Part 225--Capital Adequacy Guidelines for Bank Holding 
           Companies and State Member Banks: Leverage Measure

    The Board of Governors of the Federal Reserve System has adopted 
minimum capital ratios and guidelines to provide a framework for 
assessing the adequacy of the capital of bank holding companies and 
state member banks (collectively ``banking organizations''). The 
guidelines generally apply to all state member banks and bank holding 
companies regardless of size and are to be used in the examination and 
supervisory process as well as in the analysis of applications acted 
upon by the Federal Reserve. The Board of Governors will review the 
guidelines from time to time for possible adjustment commensurate with 
changes in the economy, financial markets, and banking practices. In 
this regard, the Board has determined that during the transition period 
through year-end 1990 for implementation of the risk-based capital 
guidelines contained in appendix A to this part and in appendix A to 
part 208, a banking organization may choose to fulfill the requirements 
of the guidelines relating capital to total assets contained in this 
Appendix in one of two manners. Until year-end 1990, a banking 
organization may choose to conform to either the 5.5 percent and 6 
percent minimum primary and total capital standards set forth in this 
appendix, or the 7.25 percent year-end 1990 minimum risk-based capital 
standard set forth in appendix A to this part and appendix A to part 
208. Those organizations that choose to conform during this period to 
the 7.25 percent year-end 1990 risk-based capital standard will be 
deemed to be in compliance with the capital adequacy guidelines set 
forth in this appendix.
    Two principal measurements of capital are used--the primary capital 
ratio and the total capital ratio. The definitions of primary and total 
capital for banks and bank holding companies and formulas for 
calculating the capital ratios are set forth below in the definitional 
sections of these guidelines.

                           Capital Guidelines

    The Board has established a minimum level of primary capital to 
total assets of 5.5 percent and a minimum level of total capital to 
total assets of 6.0 percent. Generally, banking organizations are 
expected to operate above the minimum primary and total capital levels. 
Those organizations whose operations involve or are exposed to high or 
inordinate degrees of risk will be expected to hold additional capital 
to compensate for these risks.
    In addition, the Board has established the following three zones for 
total capital for banking organizations of all sizes:

                           Total Capital Ratio                          
                              [In percent]                              
Zone 1....................................  Above 7.0.                  
Zone 2....................................  6.0 to 7.0.                 
Zone 3....................................  Below 6.0.                  
                                                                        

    The capital guidelines assume adequate liquidity and a moderate 
amount of risk in the loan and investment portfolios and in off-balance 
sheet activities. The Board is concerned that some banking organizations 
may attempt to comply with the guidelines in ways that reduce their 
liquidity or increase risk. Banking organizations should avoid the 
practice of attempting to meet the guidelines by decreasing the level of 
liquid assets in relation to total assets. In assessing compliance with 
the guidelines, the Federal Reserve will take into account liquidity and 
the overall degree of risk associated with an organization's operations, 
including the volume of assets exposed to risk.
    The Federal Reserve will also take into account the sale of loans or 
other assets with recourse and the volume and nature of all off-balance 
sheet risk. Particularly close attention will be directed to risks 
associated with standby letters of credit and participation in joint 
venture activities. The Federal Reserve will review the relationship of 
all on- and off-balance sheet risks to capital and will require those 
institutions with high or inordinate levels of risk to hold additional 
primary capital. In addition, the Federal Reserve will continue to 
review the need for more explicit procedures for factoring on- and off-
balance sheet risks into the assessment of capital adequacy.
    The capital guidelines apply to both banks and bank holding 
companies on a consolidated basis.\1\ Some banking organizations are

[[Page 173]]

engaged in significant nonbanking activities that typically require 
capital ratios higher than those of commercial banks alone. The Board 
believes that, as a matter of both safety and soundness and competitive 
equity, the degree of leverage common in banking should not 
automatically extend to nonbanking activities. Consequently, in 
evaluating the consolidated capital positions of banking organizations, 
the Board is placing greater weight on the building-block approach for 
assessing capital requirements. This approach generally provides that 
nonbank subsidiaries of a banking organization should maintain levels of 
capital consistent with the levels that have been established by 
industry norms or standards, by Federal or State regulatory agencies for 
similar firms that are not affiliated with banking organizations, or 
that may be established by the Board after taking into account risk 
factors of a particular industry. The assessment of an organization's 
consolidated capital adequacy must take into account the amount and 
nature of all nonbank activities, and an institution's consolidated 
capital position should at least equal the sum of the capital 
requirements of the organization's bank and nonbank subsidiaries as well 
as those of the parent company.
---------------------------------------------------------------------------

    \1\ The guidelines will apply to bank holding companies with less 
than $150 million in consolidated assets on a bank-only basis unless:
    (1) The holding company or any nonbank subsidiary is engaged 
directly or indirectly in any nonbank activity involving significant 
leverage or
    (2) The holding company or any nonbank subsidiary has outstanding 
significant debt held by the general public. Debt held by the general 
public is defined to mean debt held by parties other than financial 
institutions, officers, directors, and controlling shareholders of the 
banking organization or their related interests.
---------------------------------------------------------------------------

                           Supervisory Action

    The nature and intensity of supervisory action will be determined by 
an organization's compliance with the required minimum primary capital 
ratio as well as by the zone in which the company's total capital ratio 
falls. Banks and bank holding companies with primary capital ratios 
below the 5.5 percent minimum will be considered undercapitalized unless 
they can demonstrate clear extenuating circumstances. Such banking 
organizations will be required to submit an acceptable plan for 
achieving compliance with the capital guidelines and will be subject to 
denial of applications and appropriate supervisory enforcement actions.
    The zone in which an organization's total capital ratio falls will 
normally trigger the following supervisory responses, subject to 
qualitative analysis:
    For institutions operating in Zone 1, the Federal Reserve will:

--Consider that capital is generally adequate if the primary capital 
ratio is acceptable to the Federal Reserve and is above the 5.5 percent 
minimum.

    For institutions operating in Zone 2, the Federal Reserve will:

--Pay particular attention to financial factors, such as asset quality, 
liquidity, off-balance sheet risk, and interest rate risk, as they 
relate to the adequacy of capital. If these areas are deficient and the 
Federal Reserve concludes capital is not fully adequate, the Federal 
Reserve will intensify its monitoring and take appropriate supervisory 
action.

    For institutions operating in Zone 3, the Federal Reserve will:

--Consider that the institution is undercapitalized, absent clear 
extenuating circumstances;
--Require the institution to submit a comprehensive capital plan, 
acceptable to the Federal Reserve, that includes a program for achieving 
compliance with the required minimum ratios within a reasonable time 
period; and
--Institute appropriate supervisory and/or administrative enforcement 
action, which may include the issuance of a capital directive or denial 
of applications, unless a capital plan acceptable to the Federal Reserve 
has been adopted by the institution.

Treatment of Intangible Assets for the Purpose of Assessing the Capital 
        Adequacy of Bank Holding Companies and State Member Banks

    In considering the treatment of intangible assets for the purpose of 
assessing capital adequacy, the Federal Reserve recognizes that the 
determination of the future benefits and useful lives of certain 
intangible assets may involve a degree of uncertainty that is not 
normally associated with other banking assets. Supervisory concern over 
intangible assets derives from this uncertainty and from the possibility 
that, in the event an organization experiences financial difficulties, 
such assets may not provide the degree of support generally associated 
with other assets. For this reason, the Federal Reserve will carefully 
review the level and specific character of intangible assets in 
evaluating the capital adequacy of state member banks and bank holding 
companies.
    The Federal Reserve recognizes that intangible assets may differ 
with respect to predictability of any income stream directly associated 
with a particular asset, the existence of a market for the asset, the 
ability to sell the asset, or the reliability of any estimate of the 
asset's useful life. Certain intangible assets have predictable income 
streams and objectively verifiable values and may contribute to an 
organization's profitability and overall financial strength. The value 
of

[[Page 174]]

other intangibles, such as goodwill, may involve a number of assumptions 
and may be more subject to changes in general economic circumstances or 
to changes in an individual institution's future prospects. 
Consequently, the value of such intangible assets may be difficult to 
ascertain. Consistent with prudent banking practices and the principle 
of the diversification of risks, banking organizations should avoid 
excessive balance sheet concentration in any category or related 
categories of intangible assets.

                         Bank Holding Companies

    While the Federal Reserve will consider the amount and nature of all 
intangible assets, those holding companies with aggregate intangible 
assets in excess of 25 percent of tangible primary capital (i.e., stated 
primary capital less all intangible assets) or those institutions with 
lesser, although still significant, amounts of goodwill will be subject 
to close scrutiny. For the purpose of assessing capital adequacy, the 
Federal Reserve may, on a case-by-case basis, make adjustments to an 
organization's capital ratios based upon the amount of intangible assets 
in excess of the 25 percent threshold level or upon the specific 
character of the organization's intangible assets in relation to its 
overall financial condition. Such adjustments may require some 
organizations to raise additional capital.
    The Board expects banking organizations (including state member 
banks) contemplating expansion proposals to ensure that pro forma 
capital ratios exceed the minimum capital levels without significant 
reliance on intangibles, particularly goodwill. Consequently, in 
reviewing acquisition proposals, the Board will take into consideration 
both the stated primary capital ratio (that is, the ratio without any 
adjustment for intangible assets) and the primary capital ratio after 
deducting intangibles. In acting on applications, the Board will take 
into account the nature and amount of intangible assets and will, as 
appropriate, adjust capital ratios to include certain intangible assets 
on a case-by-case basis.

                           State Member Banks

    State member banks with intangible assets in excess of 25 percent of 
intangible primary capital will be subject to close scrutiny. In 
addition, for the purpose of calculating capital ratios of state member 
banks, the Federal Reserve will deduct goodwill from primary capital and 
total capital. The Federal Reserve may, on a case-by-case basis, make 
further adjustments to a bank's capital ratios based on the amount of 
intangible assets (aside from goodwill) in excess of the 25 percent 
threshold level or on the specific character of the bank's intangible 
assets in relation to its overall financial condition. Such adjustments 
may require some banks to raise additional capital.
    In addition, state member banks and bank holding companies are 
expected to review periodically the value at which intangible assets are 
carried on their balance sheets to determine whether there has been any 
impairment of value or whether changing circumstances warrant a 
shortening of amortization periods. Institutions should make appropriate 
reductions in carrying values and amortization periods in light of this 
review, and examiners will evaluate the treatment of intangible assets 
during on-site examinations.

Definition of Capital To Be Used in Determining Capital Adequacy of Bank 
                Holding Companies and State Member Banks

                       Primary Capital Components

    The components of primary capital are:
--Common stock,
--Perpetual preferred stock (preferred stock that does not have a stated 
maturity date and that may not be redeemed at the option of the holder),
--Surplus (excluding surplus relating to limited-life preferred stock),
--Undivided profits,
--Contingency and other capital reserves,
--Mandatory convertible instruments,\2\
---------------------------------------------------------------------------

    \2\ See the definitional section below that lists the criteria for 
mandatory convertible instruments to qualify as primary capital.
---------------------------------------------------------------------------

--Allowance for possible loan and lease losses (exclusive of allocated 
transfer risk reserves),
--Minority interest in equity accounts of consolidated subsidiaries,
--Perpetual debt instruments (for bank holding companies but not for 
state member banks).

               Limits on Certain Forms of Primary Capital

    Bank Holding Companies. The maximum composite amount of mandatory 
convertible securities, perpetual debt, and perpetual preferred stock 
that may be counted as primary capital for bank holding companies is 
limited to 33.3 percent of all primary capital, including these 
instruments. Perpetual preferred stock issued prior to November 20, 1985 
(or determined by the Federal Reserve to be in the process of being 
issued prior to that date), shall continue to be included as primary 
capital.
    The maximum composite amount of mandatory convertible securities and 
perpetual debt that may be counted as primary capital for bank holding 
companies is limited to 20 percent of all primary capital, including 
these instruments. The maximum amount of equity commitment notes (a form 
of mandatory convertible securities) that may be

[[Page 175]]

counted as primary capital for a bank holding company is limited to 10 
percent of all primary capital, including mandatory convertible 
securities. Amounts outstanding in excess of these limitations may be 
counted as secondary capital provided they meet the requirements of 
secondary capital instruments.
    State Member Banks. The composite limitations on the amount of 
mandatory convertible securities and perpetual preferred stock 
(perpetual debt is not primary capital for state member banks) that may 
serve as primary capital for bank holding companies shall not be applied 
formally to state member banks, although the Board shall determine 
appropriate limits for these forms of primary capital on a case-by-case 
basis.
    The maximum amount of mandatory convertible securities that may be 
counted as primary capital for state member banks is limited to 16\2/3\ 
percent of all primary capital, including mandatory convertible 
securities. Equity commitment notes, one form of mandatory convertible 
securities, shall not be included as primary capital for state member 
banks, except that notes issued by state member banks prior to May 15, 
1985, will continue to be included in primary capital. Amounts of 
mandatory convertible securities in excess of these limitations may be 
counted as secondary capital if they meet the requirements of secondary 
capital instruments.

                      Secondary Capital Components

    The components of secondary capital are:

--Limited-life preferred stock (including related surplus) and
--Bank subordinated notes and debentures and unsecured long-term debt of 
the parent company and its nonbank subsidiaries.

               Restrictions Relating to Capital Components

    To qualify as primary or secondary capital, a capital instrument 
should not contain or be covered by any convenants, terms, or 
restrictions that are inconsistent with safe and sound banking 
practices. Examples of such terms are those regarded as unduly 
interfering with the ability of the bank or holding company to conduct 
normal banking operations or those resulting in significantly higher 
dividends or interest payments in the event of a deterioration in the 
financial condition of the issuer.
    The secondary components must meet the following conditions to 
qualify as capital:

--The instrument must have an original weighted-average maturity of at 
least seven years.
--The instrument must be unsecured.
--The instrument must clearly state on its face that it is not a deposit 
and is not insured by a Federal agency.
--Bank debt instruments must be subordinated to claims of depositors.
--For banks only, the aggregate amount of limited-life preferred stock 
and subordinate debt qualifying as capital may not exceed 50 percent of 
the amount of the bank's primary capital.
    As secondary capital components approach maturity, the banking 
organization must plan to redeem or replace the instruments while 
maintaining an adequate overall capital position. Thus, the remaining 
maturity of secondary capital components will be an important 
consideration in assessing the adequacy of total capital.

                             Capital Ratios

    The primary and total capital ratios for bank holding companies are 
computed as follows:
    Primary capital ratio:

Primary capital components/Total assets + Allowance for loan and lease 
          losses (exclusive of allocated transfer risk reserves)

    Total capital ratio:

Primary capital components + Secondary capital components/Total assets + 
          Allowance for loan and lease losses (exclusive of allocated 
          transfer risk reserves)

    The primary and total capital ratios for state member banks are 
computed as follows:

    Primary capital ratio:

Primary capital components--Goodwill/Average total assets + Allowance 
          for loan and lease losses (exclusive of allocated transfer 
          risk reserves)--Goodwill

    Total capital ratio:

Primary capital components + Secondary capital components--Goodwill/
          Average total assets + Allowance for loan and lease losses 
          (exclusive of allocated transfer risk reserves)--Goodwill

    Generally, period-end amounts will be used to calculate bank holding 
company ratios. However, the Federal Reserve will discourage temporary 
balance sheet adjustments or any other ``window dressing'' practices 
designed to achieve transitory compliance with the guidelines. Banking 
organizations are expected to maintain adequate capital positions at all 
times. Thus, the Federal Reserve will, on a case-by-case basis, use 
average total assets in the calculation of bank holding company capital 
ratios whenever this approach provides a more meaningful indication of 
an individual holding company's capital position.
    For the calculation of bank capital ratios, ``average total assets'' 
will generally be defined as the quarterly average total assets figure 
reported on the bank's Report of Condition. If warranted, however, the 
Federal

[[Page 176]]

Reserve may calculate bank capital ratios based upon total assets as of 
period-end. All other components of the bank's capital ratios will be 
based upon period-end balances.

    Criteria for Determining the Primary Capital Status of Mandatory 
 Convertible Securities of Bank Holding Companies and State Member Banks

    Mandatory convertible securities are subordinated debt instruments 
that are eventually transformed into common or perpetual preferred stock 
within a specified period of time, not to exceed 12 years. To be counted 
as primary capital, mandatory convertible securities must meet the 
criteria set forth below. These criteria cover the two basic types of 
mandatory convertible securities: ``equity contract notes''--securities 
that obligate the holder to take common or perpetual preferred stock of 
the issuer in lieu of cash for repayment of principal, and ``equity 
commitment notes''--securities that are redeemable only with the 
proceeds from the sale of common or perpetual preferred stock. Both 
equity commitment notes and equity contract notes qualify as primary 
capital for bank holding companies, but only equity contract notes 
qualify as primary capital for banks.

  Criteria Applicable to Both Types of Mandatory Convertible Securities

    a. The securities must mature in 12 years or less.
    b. The issuer may redeem securities prior to maturity only with the 
proceeds from the sale of common or perpetual preferred stock of the 
bank or bank holding company. Any exception to this rule must be 
approved by the Federal Reserve. The securities may not be redeemed with 
the proceeds of another issue of mandatory convertible securities. Nor 
may the issuer repurchase or acquire its own mandatory convertible 
securities for resale or reissuance.
    c. Holders of the securities may not accelerate the payment of 
principal except in the event of bankruptcy, insolvency, or 
reorganization.
    d. The securities must be subordinate in right of payment to all 
senior indebtedness of the issuer. In the event that the proceeds of the 
securities are reloaned to an affiliate, the loan must be subordinated 
to the same degree as the original issue.
    e. An issuer that intends to dedicate the proceeds of an issue of 
common or perpetual preferred stock to satisfy the funding requirements 
of an issue of mandatory convertible securities (i.e. the requirement to 
retire or redeem the notes with the proceeds from the issuance of common 
or perpetual preferred stock) generally must make such a dedication 
during the quarter in which the new common or preferred stock is 
issued.\3\ As a general rule, if the dedication is not made within the 
prescribed period, then the securities issued may not at a later date be 
dedicated to the retirement or redemption of the mandatory convertible 
securities.\4\
---------------------------------------------------------------------------

    \3\ Common or perpetual preferred stock issued under dividend 
reinvestment plans or issued to finance acquisitions, including 
acquisitions of business entities, may be dedicated to the retirement or 
redemption of the mandatory convertible securities. Documentation 
certified by an authorized agent of the issuer showing the amount of 
common stock or perpetual preferred stock issued, the dates of issue, 
and amounts of such issues dedicated to the retirement or redemption of 
mandatory convertible securities will satisfy the dedication 
requirement.
    \4\ The dedication procedure is necessary to ensure that the primary 
capital of the issuer is not overstated. For each dollar of common or 
perpetual preferred proceeds dedicated to the retirement or redemption 
of the notes, there is a corresponding reduction in the amount of 
outstanding mandatory securities that may qualify as primary capital. De 
minimis amounts (in relation to primary capital) of common or perpetual 
preferred stock issued under arrangements in which the amount of stock 
issued is not predictable, such as dividend reinvestment plans and 
employee stock option plans (but excluding public stock offerings and 
stock issued in connection with acquisitions), should be dedicated by no 
later than the company's fiscal year end.
---------------------------------------------------------------------------

         Additional Criteria Applicable to Equity Contract Notes

    a. The note must contain a contractual provision (or must be issued 
with a mandatory stock purchase contract) that requires the holder of 
the instrument to take the common or perpetual stock of the issuer in 
lieu of cash in satisfaction of the claim for principal repayment. The 
obligation of the holder to take the common or perpetual preferred stock 
of the issuer may be waived if, and to the extent that, prior to the 
maturity date of the obligation, the issuer sells new common or 
perpetual preferred stock and dedicates the proceeds to the retirement 
or redemption of the notes. The dedication generally must be made during 
the quarter in which the new common or preferred stock is issued.
    b. A stock purchase contract may be separated from a security only 
if: (1) The holder

[[Page 177]]

of the contract provides sufficient collateral \5\ to the issuer, or to 
an independent trustee for the benefit of the issuer, to assure 
performance under the contract and (2) the stock purchase contract 
requires the purchase of common or perpetual preferred stock.
---------------------------------------------------------------------------

    \5\ Collateral is defined as: (1) Cash or certificates of deposit; 
(2) U.S. government securities that will mature prior to or simultaneous 
with the maturity of the equity contract and that have a par or maturity 
value at least equal to the amount of the holder's obligation under the 
stock purchase contract; (3) standby letters of credit issued by an 
insured U.S. bank that is not an affiliate of the issuer; or (4) other 
collateral as may be designated from time to time by the Federal 
Reserve.
---------------------------------------------------------------------------

        Additional Criteria Applicable to Equity Commitment Notes

    a. The indenture or note agreement must contain the following two 
provisions:
    1. The proceeds of the sale of common or perpetual preferred stock 
will be the sole source of repayment for the notes, and the issuer must 
dedicate the proceeds for the purpose of repaying the notes. 
(Documentation certified by an authorized agent of the issued showing 
the amount of common or perpetual preferred stock issued, the dates of 
issue, and amounts of such issues dedicated to the retirement or 
redemption of mandatory convertible securities will satisfy the 
dedication requirement.)
    2. By the time that one-third of the life of the securities has run, 
the issuer must have raised and dedicated an amount equal to one-third 
of the original principal of the securities. By the time that two-thirds 
of the life of the securities has run, the issuer must have raised and 
dedicated an amount equal to two-thirds of the original principal of the 
securities. At least 60 days prior to the maturity of the securities, 
the issuer must have raised and dedicated an amount equal to the entire 
original principal of the securities. Proceeds dedicated to redemption 
or retirement of the notes must come only from the sale of common or 
perpetual preferred stock.\6\
---------------------------------------------------------------------------

    \6\ The funded portions of the securities will be deducted from 
primary capital to avoid double counting.
---------------------------------------------------------------------------

    b. If the issuer fails to meet any of these periodic funding 
requirements, the Federal Reserve immediately will cease to treat the 
unfunded securities as primary capital and will take appropriate 
supervisory action. In addition, failure to meet the funding 
requirements will be viewed as a breach of a regulatory commitment and 
will be taken into consideration by the Board in acting on statutory 
applications.
    c. If a security is issued by a subsidiary of a bank or bank holding 
company, any guarantee of the principal by that subsidiary's parent bank 
or bank holding company must be subordinate to the same degree as the 
security issued by the subsidiary and limited to repayment of the 
principal amount of the security at its final maturity.

  Criteria for Determining the Primary Capital Status of Perpetual Debt 
                  Instruments of Bank Holding Companies

    1. The instrument must be unsecured and, if issued by a bank, must 
be subordinated to the claims of depositors.
    2. The instrument may not provide the noteholder with the right to 
demand repayment of principal except in the event of bankruptcy, 
insolvency, or reorganization. The instrument must provide that 
nonpayment of interest shall not trigger repayment of the principal of 
the perpetual debt note or any other obligation of the issuer, nor shall 
it constitute prima facie evidence of insolvency or bankruptcy.
    3. The issuer shall not voluntarily redeem the debt issue without 
prior approval of the Federal Reserve, except when the debt is converted 
to, exchanged for, or simultaneously replaced in like amount by an issue 
of common or perpetual preferred stock of the issuer or the issuer's 
parent company.
    4. If issued by a bank holding company, a bank subsidiary, or a 
subsidiary with substantial operations, the instrument must contain a 
provision that allows the issuer to defer interest payments on the 
perpetual debt in the event of, and at the same time as the elimination 
of dividends on all outstanding common or preferred stock of the issuer 
(or in the case of a guarantee by a parent company at the same time as 
the elimination of the dividends of the parent company's common and 
preferred stock). In the case of a nonoperating subsidiary (a funding 
subsidiary or one formed to issue securities), the deferral of interest 
payments must be triggered by elimination of dividends by the parent 
company.
    5. If issued by a bank holding company or a subsidiary with 
substantial operations, the instrument must convert automatically to 
common or perpetual preferred stock of the issuer when the issuer's 
retained earnings and surplus accounts become negative. If an operating 
subsidiary's perpetual debt is guaranteed by its parent, the debt may 
convert to the shares of the issuer or guarantor and such conversion may 
be triggered when the issuer's or parent's retained earnings and surplus 
accounts become negative. If issued by a nonoperating subsidiary of a 
bank holding company or bank, the instrument must convert automatically 
to common or preferred stock of the issuer's parent when the

[[Page 178]]

retained earnings and surplus accounts of the issuer's parent become 
negative.

[Reg. Y, 50 FR 16066, Apr. 24, 1985, as amended at 51 FR 40969, Nov. 12, 
1986. Redesignated and amended at 54 FR 4209, Jan. 27, 1989; 55 FR 
32832, Aug. 10, 1990; 58 FR 474, Jan. 6, 1993]

Appendix C to Part 225--Policy Statement for Formation of Small One-Bank 
                            Holding Companies

                     Assessment of Financial Factors

    In acting on applications filed under the Bank Holding Company Act, 
the Board has adopted, and continues to follow, the principle that bank 
holding companies should serve as a source of strength for their 
subsidiary banks. When bank holding companies incur debt and rely upon 
the earnings of their subsidiary banks as the means of repaying such 
debt, a question arises as to the probable effect upon the financial 
condition of the company and its subsidiary bank or banks.
    The Board believes that a high level of debt at the parent holding 
company level impairs the ability of a bank holding company to provide 
financial assistance to its subsidiary bank and in some cases the 
servicing requirements on such debt may be a significant drain on the 
bank's resources. For these reasons, the Board has not favored the use 
of acquisition debt in the formation of bank holding companies. 
Nevertheless, the Board has recognized that the transfer of ownership of 
small banks often requires the use of acquisition debt. The Board 
therefore has permitted the formation of small one-bank holding 
companies with debt levels higher than would be permitted for larger or 
multibank holding companies. Approval of these applications has been 
given on the condition that the small one-bank holding companies 
demonstrate the ability to service the acquisition debt without 
straining the capital of their subsidiary bank and, further, that such 
companies restore their ability to serve as a source of strength for 
their subsidiary bank within a relatively short period of time.
    In the interest of furthering its policy of facilitating the 
transfer of ownership in banks without diluting bank safety and 
soundness, the Board has reexamined the analytical framework and 
financial criteria it applies when considering the formation of small 
one-bank holding companies and has adopted certain revisions in its 
procedures and standards as described below.
    The revised criteria shift the focus from debt repayment to the 
relationship between debt and equity at the parent holding company. The 
holding company will have the option of improving the relationship of 
debt to equity by repaying the principal amount of its debt or through 
the retention of earnings, or both. Under these procedures, newly 
organized small one-bank holding companies will be expected to reduce 
the relationship of their debt to equity over a reasonable period of 
time to a level comparable to that maintained by many large and 
multibank holding companies.
    In general, this policy is intended to apply only to one-bank 
holding companies that would not have significant leveraged nonbank 
activities and whose subsidiary bank would have total assets of 
approximately $150 million or less at the time the application is filed. 
Small one-bank holding companies formed before the initial effective 
date of the Board's policy concerning formation of small one-bank 
holding companies and assessment of financial factors (March 28, 1980) 
may switch to a plan that adheres to the intent of this policy provided 
they comply with criteria 2, 3, and 4 set forth below.
    The criteria are as follows:

                                 General

    In evaluating applications filed pursuant to section 3(a)(1) of the 
Bank Holding Company Act, as amended, when the applicant intends to 
incur debt to finance the acquisition of a small bank, the Board will 
take into account a full range of financial and other information, 
including the recent trend and stability of earnings of the bank, the 
past and prospective growth of the bank, the quality of the bank's 
assets, the ability of the applicant to meet debt servicing requirements 
without placing an undue strain on the bank's resources, and the record 
and competency of management of the applicant and the bank. In addition, 
the Board will require applicants to meet the minimum requirements set 
forth below. As a general rule, failure to meet any of these 
requirements will result in denial of the application; however, the 
Board reserves the right to make exceptions if the circumstances 
warrant.

                         1. Minimum Down Payment

    The amount of acquisition debt should not exceed 75 percent of the 
purchase price of the bank to be acquired. When the owner(s) of the 
holding company incur debt to finance the purchase of the bank, such 
debt will be considered acquisition debt even though it does not 
represent an obligation of the bank holding company, unless the owner(s) 
can demonstrate that such debt can be serviced without reliance on the 
resources of the bank or bank holding company.

                   2. Maintenance of Adequate Capital

    An applicant proposing to use acquisition debt must demonstrate to 
the satisfaction of the Board that any debt servicing requirements to 
which the bank holding company

[[Page 179]]

may be subject would not cause the subsidiary bank's ratio of gross 
capital to assets to fall below 8 percent during the 12-year period 
following consummation of the acquisition. Gross capital is defined as 
the sum of total stockholders' equity, the allowance for possible loan 
losses, and subordinated capital notes and debentures.

                 3. Reduction in Parent Company Leverage

    The applicant must demonstrate to the satisfaction of the Board that 
the parent holding company's ratio of debt to equity will decline to 30 
percent within 12 years after consummation of the acquisition. The 
holding company must also demonstrate that it will be able to safely 
meet debt servicing and other requirements imposed by its creditors.
    The term debt, as used in the ratio of debt to equity, means any 
borrowed funds (exclusive of short-term borrowings that arise out of 
current transactions, the proceeds of which are used for current 
transactions), and any securities issued by, or obligations of, the 
holding company that are the functional equivalent of borrowed funds.
    The term equity, as used in the ratio of debt to equity, means the 
total stockholders' equity of the bank holding company adjusted to 
reflect the periodic amortization of goodwill (defined as the excess of 
cost of any acquired company over the sum of the amounts assigned to 
identifiable assets acquired, less liabilities assumed) in accordance 
with generally accepted accounting principles. In determining the total 
amount of stockholders' equity, the bank holding company should account 
for its investments in the common stock of subsidiaries by the equity 
method of accounting.
    Ordinarily the Board does not view redeemable preferred stock as a 
substitute for common stock in a one-bank holding company formation. 
Nevertheless, to a limited degree and under certain circumstances the 
Board will consider redeemable preferred stock as equity in the capital 
accounts of the holding company if the following conditions are met: (1) 
The preferred stock is redeemable only at the option of the issuer and 
(2) the debt to equity ratio of the holding company would be at or 
remain below 30 percent following the redemption or retirement of any 
preferred stock. Preferred stock that is convertible into common stock 
of the holding company may be treated as equity.

                        4. Dividend Restrictions

    The bank holding company is not expected to pay any corporate 
dividends on common stock until such time as its debt to equity ratio is 
below 30 percent. However, some dividends may be permitted provided all 
of the following conditions are met:
    (a) The applicant has begun making scheduled repayments of principal 
on the acquisition debt; (b) such scheduled repayments of principal are 
reasonable in amount, will be made at least annually, and will allow for 
the retirement of the acquisition debt over a period not to exceed 25 
years; and (c) the applicant can clearly demonstrate at the time the 
application is filed that such dividends will not jeopardize the ability 
of the holding company to reduce its debt to equity ratio to 30 percent 
within 12 years of consummation of the proposal or cause the gross 
capital to assets of the subsidiary bank to fall below 8 percent over 
the same period. Also, it is expected that dividends will be eliminated 
if the holding company is not meeting the projections made at the time 
the application was filed regarding the ability of the holding company 
to reduce the debt to equity ratio to 30 percent within 12 years of 
consummation of the proposal.
    The requirements of this Policy Statement should be read in the 
context of the Board's Capital Adequacy Guidelines (Appendix A), 
including the definitions of capital and its components.

[Reg. Y, 49 FR 818, Jan. 5, 1984. Redesignated at 54 FR 4209, Jan. 27, 
1989]

  Appendix D to Part 225--Capital Adequacy Guidelines for Bank Holding 
                   Companies: Tier 1 Leverage Measure

                               I. Overview

    a. The Board of Governors of the Federal Reserve System has adopted 
a minimum ratio of tier 1 capital to total assets to assist in the 
assessment of the capital adequacy of bank holding companies (banking 
organizations).\1\ The principal objectives of this measure is to place 
a constraint on the maximum degree to which a banking organization can 
leverage its equity capital base. It is intended to be used as a 
supplement to the risk-based capital measure.
---------------------------------------------------------------------------

    \1\ Supervisory ratios that related capital to total assets for 
state member banks are outlined in Appendix B of this part.
---------------------------------------------------------------------------

    b. The guidelines apply to consolidated basis to banking holding 
companies with consolidated assets of $150 million or more. For bank 
holding companies with less that $150 million in consolidated assets, 
the guidelines will be applied on a bank-only basis unless (i) the 
parent bank holding company is engaged in nonbank activity involving 
significant leverage \2\ or (ii) the parent

[[Page 180]]

company has a significant amount of outstanding debt that is held by the 
general public.
---------------------------------------------------------------------------

    \2\ A parent company that is engaged is significant off balance 
sheet activities would generally be deemed to be engaged in activities 
that involve significant leverage.
---------------------------------------------------------------------------

    c. The tier 1 leverage guidelines are to be used in the inspection 
and supervisory process as well as in the analysis of applications acted 
upon by the Federal Reserve. The Board will review the guidelines from 
time to time and will consider the need for possible adjustments in 
light of any significant changes in the economy, financial markets, and 
banking practices.

                      II. The Tier 1 Leverage Ratio

    a. The Board has established a minimum level of tier 1 capital to 
total assets of 3 percent. A banking organization operating at or near 
these levels is expected to have well-diversified risk, including no 
undue interest-rate risk exposure; excellent asset quality; high 
liquidity; and good earnings; and in general be considered a strong 
banking organization, rated composite 1 under BOPEC rating system of 
bank holding companies. Organizations not meeting these characteristics, 
as well as institutions with supervisory, financial, or operational 
weaknesses, are expected to operate well above minimum capital 
standards. Organizations experiencing or anticipating significant growth 
also are expected to maintain capital ratios, including tangible capital 
positions, well above the minimum levels. For example, most such banks 
generally have operated at capital levels ranging from 100 to 200 basis 
points above the stated minimums. Higher capital ratios could be 
required if warranted by the particular circumstances or risk profiles 
of individual banking organizations. Thus for all but the most highly 
rated banks meeting the conditions set forth above, the minimum tier 1 
leverage ratio is to be 3 percent plus an additional cushion of a least 
100 to 200 basis points. In all cases, banking organizations should hold 
capital commensurate with the level and nature of all risks, including 
the volume and severity of problem loans, to which they are exposed.
    b. A banking organization's tier 1 leverage ratio is calculated by 
dividing its tier 1 capital (the numerator of the ratio) by its average 
total consolidated assets (the denominator of the ratio). The ratio will 
also be calculated using period-end assets whenever necessary, on a 
case-by-case basis. For the purpose of this leverage ratio, the 
definition of tier 1 capital for year-end 1992 as set forth in the risk-
based capital guidelines contained in Appendix A of this part will be 
used.\3\ As a general matter, average total consolidated assets are 
defined as the quarterly average total assets (defined net of the 
allowance for loan and lease losses) reported on the organization's 
Consolidated Financial Statements (FR Y-9C Report), less goodwill; 
amounts of mortgage servicing rights and purchased credit card 
relationships that, in the aggregate, are in excess of 50 percent of 
tier 1 capital; amounts of purchased credit card relationships in excess 
of 25 percent of tier 1 capital; all other intangible assets; any 
investments in subsidiaries or associated companies that the Federal 
Reserve determines should be deducted from tier 1 capital; and deferred 
tax assets that are dependent upon future taxable income, net of their 
valuation allowance, in excess of the limitation set forth in section 
II.B.4 of this Appendix A.\4\
---------------------------------------------------------------------------

    \3\ At the end of 1992, tier 1 capital for banking organizations 
includes common equity, minority interest in the equity accounts of 
consolidated subsidiaries, qualifying noncumulative perpetual preferred 
stock, and qualifying cumulative perpetual preferred stock. (Cumulative 
perpetual preferred stock is limited to 25 percent of tier 1 capital.) 
In addition, as a general matter, tier 1 capital excludes goodwill; 
amounts of mortgage servicing rights and purchased credit card 
relationships that, in the aggregate, exceed 50 percent of tier 1 
capital; amounts of purchased credit card relationships that exceed 25 
percent of tier 1 capital; all other intangible assets; and deferred tax 
assets that are dependent upon future taxable income, net of their 
valuation allowance, in excess of certain limitations. The Federal 
Reserve may exclude certain investments in subsidiaries or associated 
companies as appropriate.
    \4\ Deductions from tier 1 capital and other adjustments are 
discussed more fully in section II.B. in Appendix A of this part.
---------------------------------------------------------------------------

    c. Whenever appropriate, including when an organization is 
undertaking expansion, seeking to engage in new activities or otherwise 
facing unusual or abnormal risks, the Board will continue to consider 
the level of an individual organization's tangible tier 1 leverage ratio 
(after deducting all intangibles) in making an overall assessment of 
capital adequacy. This is consistent with the Federal Reserve's risk-
based capital guidelines an long-standing Board policy and practice with 
regard to leverage guidelines. Organizations experiencing growth, 
whether internally or by acquisition, are expected to maintain strong 
capital position substantially above minimum supervisory levels, without 
significant reliance on intangible assets.

[Reg. Y, 59 FR 65926, Dec. 22, 1994, as amended at 60 FR 39231, Aug. 1, 
1995]

[[Page 181]]



  Appendix E to Part 225--Capital Adequacy Guidelines for State Member 
                       Banks; Market Risk Measure

      Section 1. Purpose, Applicability, Scope, and Effective Date

    (a) Purpose. The purpose of this appendix is to ensure that banks 
with significant exposure to market risk maintain adequate capital to 
support that exposure.1 This appendix supplements and adjusts the 
risk-based capital ratio calculations under appendix A of this part with 
respect to those banks.
---------------------------------------------------------------------------

    \1\ This appendix is based on a framework developed jointly by 
supervisory authorities from the countries represented on the Basle 
Committee on Banking Supervision and endorsed by the Group of Ten 
Central Bank Governors. The framework is described in a Basle Committee 
paper entitled ``Amendment to the Capital Accord to Incorporate Market 
Risk,'' January 1996.
---------------------------------------------------------------------------

    (b) Applicability. (1) This appendix applies to any insured state 
member bank whose trading activity 2 (on a worldwide consolidated 
basis) equals:
---------------------------------------------------------------------------

    \2\ Trading activity means the gross sum of trading assets and 
liabilities as reported in the bank's most recent quarterly Consolidated 
Report of Condition and Income (Call Report).
---------------------------------------------------------------------------

    (i) 10 percent or more of total assets; 3 or
---------------------------------------------------------------------------

    \3\ Total assets means quarter-end total assets as reported in the 
bank's most recent Call Report.
---------------------------------------------------------------------------

    (ii) $1 billion or more.
    (2) The Federal Reserve may additionally apply this appendix to any 
insured state member bank if the Federal Reserve deems it necessary or 
appropriate for safe and sound banking practices.
    (3) The Federal Reserve may exclude an insured state member bank 
otherwise meeting the criteria of paragraph (b)(1) of this section from 
coverage under this appendix if it determines the bank meets such 
criteria as a consequence of accounting, operational, or similar 
considerations, and the Federal Reserve deems it consistent with safe 
and sound banking practices.
    (c) Scope. The capital requirements of this appendix support market 
risk associated with a bank's covered positions.
    (d) Effective date. This appendix is effective as of January 1, 
1997. Compliance is not mandatory until January 1, 1998. Subject to 
supervisory approval, a bank may opt to comply with this appendix as 
early as January 1, 1997.4
---------------------------------------------------------------------------

    \4\ A bank that voluntarily complies with the final rule prior to 
January 1, 1998, must comply with all of its provisions.
---------------------------------------------------------------------------

                         Section 2. Definitions

    For purposes of this appendix, the following definitions apply:
    (a) Covered positions means all positions in a bank's trading 
account, and all foreign exchange 5 and commodity positions, 
whether or not in the trading account.6 Positions include on-
balance-sheet assets and liabilities and off-balance-sheet items. 
Securities subject to repurchase and lending agreements are included as 
if they are still owned by the lender.
---------------------------------------------------------------------------

    \5\ Subject to supervisory review, a bank may exclude structural 
positions in foreign currencies from its covered positions.
    \6\ The term trading account is defined in the instructions to the 
Call Report.
---------------------------------------------------------------------------

    (b) Market risk means the risk of loss resulting from movements in 
market prices. Market risk consists of general market risk and specific 
risk components.
    (1) General market risk means changes in the market value of covered 
positions resulting from broad market movements, such as changes in the 
general level of interest rates, equity prices, foreign exchange rates, 
or commodity prices.
    (2) Specific risk means changes in the market value of specific 
positions due to factors other than broad market movements and includes 
such risk as the credit risk of an instrument's issuer.
    (c) Tier 1 and Tier 2 capital are defined in appendix A of this 
part.
    (d) Tier 3 capital is subordinated debt that is unsecured; is fully 
paid up; has an original maturity of at least two years; is not 
redeemable before maturity without prior approval by the Federal 
Reserve; includes a lock-in clause precluding payment of either interest 
or principal (even at maturity) if the payment would cause the issuing 
bank's risk-based capital ratio to fall or remain below the minimum 
required under appendix A of this part; and does not contain and is not 
covered by any covenants, terms, or restrictions that are inconsistent 
with safe and sound banking practices.
    (e) Value-at-risk (VAR) means the estimate of the maximum amount 
that the value of covered positions could decline during a fixed holding 
period within a stated confidence level, measured in accordance with 
section 4 of this appendix.

   Section 3. Adjustments to the Risk-Based Capital Ratio Calculations

    (a) Risk-based capital ratio denominator. A bank subject to this 
appendix shall calculate its risk-based capital ratio denominator as 
follows:
    (1) Adjusted risk-weighted assets. Calculate adjusted risk-weighted 
assets, which equals

[[Page 182]]

risk-weighted assets (as determined in accordance with appendix A of 
this part), excluding the risk-weighted amounts of all covered positions 
(except foreign exchange positions outside the trading account and over-
the-counter derivative positions).7
---------------------------------------------------------------------------

    \7\ Foreign exchange positions outside the trading account and all 
over-the-counter derivative positions, whether or not in the trading 
account, must be included in adjusted risk weighted assets as determined 
in appendix A of this part.
---------------------------------------------------------------------------

    (2) Measure for market risk. Calculate the measure for market risk, 
which equals the sum of the VAR-based capital charge, the specific risk 
add-on (if any), and the capital charge for de minimis exposures (if 
any).
    (i) VAR-based capital charge. The VAR-based capital charge equals 
the higher of:
    (A) The previous day's VAR measure; or
    (B) The average of the daily VAR measures for each of the preceding 
60 business days multiplied by three, except as provided in section 4(e) 
of this appendix;
    (ii) Specific risk add-on. The specific risk add-on is calculated in 
accordance with section 5 of this appendix; and
    (iii) Capital charge for de minimis exposure. The capital charge for 
de minimis exposure is calculated in accordance with section 4(a) of 
this appendix.
    (3) Market risk equivalent assets. Calculate market risk equivalent 
assets by multiplying the measure for market risk (as calculated in 
paragraph (a)(2) of this section) by 12.5.
    (4) Denominator calculation. Add market risk equivalent assets (as 
calculated in paragraph (a)(3) of this section) to adjusted risk-
weighted assets (as calculated in paragraph (a)(1) of this section). The 
resulting sum is the bank's risk-based capital ratio denominator.
    (b) Risk-based capital ratio numerator. A bank subject to this 
appendix shall calculate its risk-based capital ratio numerator by 
allocating capital as follows:
    (1) Credit risk allocation. Allocate Tier 1 and Tier 2 capital equal 
to 8.0 percent of adjusted risk-weighted assets (as calculated in 
paragraph (a)(1) of this section).8
---------------------------------------------------------------------------

    \8\ A bank may not allocate Tier 3 capital to support credit risk 
(as calculated under appendix A of this part).
---------------------------------------------------------------------------

    (2) Market risk allocation. Allocate Tier 1, Tier 2, and Tier 3 
capital equal to the measure for market risk as calculated in paragraph 
(a)(2) of this section. The sum of Tier 2 and Tier 3 capital allocated 
for market risk must not exceed 250 percent of Tier 1 capital allocated 
for market risk. (This requirement means that Tier 1 capital allocated 
in this paragraph (b)(2) must equal at least 28.6 percent of the measure 
for market risk.)
    (3) Restrictions. (i) The sum of Tier 2 capital (both allocated and 
excess) and Tier 3 capital (allocated in paragraph (b)(2) of this 
section) may not exceed 100 percent of Tier 1 capital (both allocated 
and excess).9
---------------------------------------------------------------------------

    \9\ Excess Tier 1 capital means Tier 1 capital that has not been 
allocated in paragraphs (b)(1) and (b)(2) of this section. Excess Tier 2 
capital means Tier 2 capital that has not been allocated in paragraph 
(b)(1) and (b)(2) of this section, subject to the restrictions in 
paragraph (b)(3) of this section.
---------------------------------------------------------------------------

    (ii) Term subordinated debt (and intermediate-term preferred stock 
and related surplus) included in Tier 2 capital (both allocated and 
excess) may not exceed 50 percent of Tier 1 capital (both allocated and 
excess).
    (4) Numerator calculation. Add Tier 1 capital (both allocated and 
excess), Tier 2 capital (both allocated and excess), and Tier 3 capital 
(allocated under paragraph (b)(2) of this section). The resulting sum is 
the bank's risk-based capital ratio numerator.

                       Section 4. Internal Models.

    (a) General. For risk-based capital purposes, a bank subject to this 
appendix must use its internal model to measure its daily VAR, in 
accordance with the requirements of this section.10 The Federal 
Reserve may permit a bank to use alternative techniques to measure the 
market risk of de minimis exposures so long as the techniques adequately 
measure associated market risk.
---------------------------------------------------------------------------

    \10\ A bank's internal model may use any generally accepted 
measurement techniques, such as variance-covariance models, historical 
simulations, or Monte Carlo simulations. However, the level of 
sophistication and accuracy of a bank's internal model must be 
commensurate with the nature and size of its covered positions. A bank 
that modifies its existing modeling procedures to comply with the 
requirements of this appendix for risk-based capital purposes should, 
nonetheless, continue to use the internal model it considers most 
appropriate in evaluating risks for other purposes.
---------------------------------------------------------------------------

    (b) Qualitative requirements. A bank subject to this appendix must 
have a risk management system that meets the following minimum 
qualitative requirements:
    (1) The bank must have a risk control unit that reports directly to 
senior management and is independent from business trading units.
    (2) The bank's internal risk measurement model must be integrated 
into the daily management process.
    (3) The bank's policies and procedures must identify, and the bank 
must conduct, appropriate stress tests and backtests.11 The

[[Page 183]]

bank's policies and procedures must identify the procedures to follow in 
response to the results of such tests.
---------------------------------------------------------------------------

    \11\ Stress tests provide information about the impact of adverse 
market events on a bank's covered positions. Backtests provide 
information about the accuracy of an internal model by comparing a 
bank's daily VAR measures to its corresponding daily trading profits and 
losses.
---------------------------------------------------------------------------

    (4) The bank must conduct independent reviews of its risk 
measurement and risk management systems at least annually.
    (c) Market risk factors. The bank's internal model must use risk 
factors sufficient to measure the market risk inherent in all covered 
positions. The risk factors must address interest rate risk,12 
equity price risk, foreign exchange rate risk, and commodity price risk.
---------------------------------------------------------------------------

    \12\ For material exposures in the major currencies and markets, 
modeling techniques must capture spread risk and must incorporate enough 
segments of the yield curve--at least six--to capture differences in 
volatility and less than perfect correlation of rates along the yield 
curve.
---------------------------------------------------------------------------

    (d) Quantitative requirements. For regulatory capital purposes, VAR 
measures must meet the following quantitative requirements:
    (1) The VAR measures must be calculated on a daily basis using a 99 
percent, one-tailed confidence level with a price shock equivalent to a 
ten-business day movement in rates and prices. In order to calculate VAR 
measures based on a ten-day price shock, the bank may either calculate 
ten-day figures directly or convert VAR figures based on holding periods 
other than ten days to the equivalent of a ten-day holding period (for 
instance, by multiplying a one-day VAR measure by the square root of 
ten).
    (2) The VAR measures must be based on an historical observation 
period (or effective observation period for a bank using a weighting 
scheme or other similar method) of at least one year. The bank must 
update data sets at least once every three months or more frequently as 
market conditions warrant.
    (3) The VAR measures must include the risks arising from the non-
linear price characteristics of options positions and the sensitivity of 
the market value of the positions to changes in the volatility of the 
underlying rates or prices. A bank with a large or complex options 
portfolio must measure the volatility of options positions by different 
maturities.
    (4) The VAR measures may incorporate empirical correlations within 
and across risk categories, provided that the bank's process for 
measuring correlations is sound. In the event that the VAR measures do 
not incorporate empirical correlations across risk categories, then the 
bank must add the separate VAR measures for the four major risk 
categories to determine its aggregate VAR measure.
    (e) Backtesting. (1) Beginning one year after a bank starts to 
comply with this appendix, a bank must conduct backtesting by comparing 
each of its most recent 250 business days' actual net trading profit or 
loss 13 with the corresponding daily VAR measures generated for 
internal risk measurement purposes and calibrated to a one-day holding 
period and a 99 percent, one-tailed confidence level.
---------------------------------------------------------------------------

    \13\ Actual net trading profits and losses typically include such 
things as realized and unrealized gains and losses on portfolio 
positions as well as fee income and commissions associated with trading 
activities.
---------------------------------------------------------------------------

    (2) Once each quarter, the bank must identify the number of 
exceptions, that is, the number of business days for which the magnitude 
of the actual daily net trading loss, if any, exceeds the corresponding 
daily VAR measure.
    (3) A bank must use the multiplication factor indicated in Table 1 
of this appendix in determining its capital charge for market risk under 
section 3(a)(2)(i)(B) of this appendix until it obtains the next 
quarter's backtesting results, unless the Federal Reserve determines 
that a different adjustment or other action is appropriate.

     Table 1.--Multiplication Factor Based on Results of Backtesting    
------------------------------------------------------------------------
                                                          Multiplication
                  Number of exceptions                        factor    
------------------------------------------------------------------------
4 or fewer..............................................          3.00  
5.......................................................          3.40  
6.......................................................          3.50  
7.......................................................          3.65  
8.......................................................          3.75  
9.......................................................          3.85  
10 or more..............................................          4.00  
------------------------------------------------------------------------

                        Section 5. Specific Risk

    (a) Specific risk add-on. For purposes of section 3(a)(2)(ii) of 
this appendix, a bank's specific risk add-on equals the standard 
specific risk capital charge calculated under paragraph (c) of this 
section. If, however, a bank can demonstrate to the Federal Reserve that 
its internal model measures the specific risk of covered debt and/or 
equity positions and that those measures are included in the VAR-based 
capital charge in section 3(a)(2)(i) of this appendix, then the bank may 
reduce or eliminate its specific risk add-on under this section. The 
determination as to whether a model incorporates specific risk must be 
made separately for covered debt and equity positions.
    (1) If a model includes the specific risk of covered debt positions 
but not covered equity positions (or vice versa), then the bank can 
reduce its specific risk charge for the included positions under 
paragraph (b) of this

[[Page 184]]

section. The specific risk charge for the positions not included equals 
the standard specific risk capital charge under paragraph (c) of this 
section.
    (2) If a model addresses the specific risk of both covered debt and 
equity positions, then the bank can reduce its specific risk charge for 
both covered debt and equity positions under paragraph (b) of this 
section. In this case, the comparison described in paragraph (b) of this 
section must be based on the total VAR-based figure for the specific 
risk of debt and equity positions, taking into account any correlations 
that are built into the model.
    (b) VAR-based specific risk capital charge. In all cases where a 
bank measures specific risk in its internal model, the total capital 
charge for specific risk (i.e., the VAR-based specific risk capital 
charge plus the specific risk add-on) must equal at least 50 percent of 
the standard specific risk capital charge (this amount is the minimum 
specific risk charge).
    (1) If the portion of a bank's VAR measure that is attributable to 
specific risk (multiplied by the bank's multiplication factor if 
required in section 3(a)(2) of this appendix) is greater than or equal 
to the minimum specific risk charge, then the bank has no specific risk 
add-on and its capital charge for specific risk is the portion included 
in the VAR measure.
    (2) If the portion of a bank's VAR measure that is attributable to 
specific risk (multiplied by the bank's multiplication factor if 
required in section 3(a)(2) of this appendix) is less than the minimum 
specific risk charge, then the bank's specific risk add-on is the 
difference between the minimum specific risk charge and the specific 
risk portion of the VAR measure (multiplied by the bank's multiplication 
factor if required in section 3(a)(2) of this appendix).
    (c) Standard specific risk capital charge. The standard specific 
risk capital charge equals the sum of the components for covered debt 
and equity positions as follows:
    (1) Covered debt positions. (i) For purposes of this section 5, 
covered debt positions means fixed-rate or floating-rate debt 
instruments located in the trading account and instruments located in 
the trading account with values that react primarily to changes in 
interest rates, including certain non-convertible preferred stock, 
convertible bonds, and instruments subject to repurchase and lending 
agreements. Also included are derivatives (including written and 
purchased options) for which the underlying instrument is a covered debt 
instrument that is subject to a non-zero specific risk capital charge.
    (A) For covered debt positions that are derivatives, a bank must 
risk-weight (as described in paragraph (c)(1)(iii) of this section) the 
market value of the effective notional amount of the underlying debt 
instrument or index portfolio. Swaps must be included as the notional 
position in the underlying debt instrument or index portfolio, with a 
receiving side treated as a long position and a paying side treated as a 
short position; and
    (B) For covered debt positions that are options, whether long or 
short, a bank must risk-weight (as described in paragraph (c)(1)(iii) of 
this section) the market value of the effective notional amount of the 
underlying debt instrument or index multiplied by the option's delta.
    (ii) A bank may net long and short covered debt positions (including 
derivatives) in identical debt issues or indices.
    (iii) A bank must multiply the absolute value of the current market 
value of each net long or short covered debt position by the appropriate 
specific risk weighting factor indicated in Table 2 of this appendix. 
The specific risk capital charge component for covered debt positions is 
the sum of the weighted values.

  Table 2.--Specific Risk Weighting Factors for Covered Debt Positions  
------------------------------------------------------------------------
                                                               Weighting
                                         Remaining maturity      factor 
              Category                     (contractual)          (in   
                                                                percent)
------------------------------------------------------------------------
Government..........................  N/A....................       0.00
Qualifying..........................  6 months or less.......       0.25
                                      Over 6 months to 24           1.00
                                       months.                          
                                      Over 24 months.........       1.60
Other...............................  N/A....................       8.00
------------------------------------------------------------------------

    (A) The government category includes all debt instruments of central 
governments of OECD-based countries 14 including bonds, Treasury 
bills, and other short-term instruments, as well as local currency 
instruments of non-OECD central governments to the extent the bank has 
liabilities booked in that currency.
---------------------------------------------------------------------------

    \14\ Organization for Economic Cooperation and Development (OECD)-
based countries is defined in appendix A of this part.
---------------------------------------------------------------------------

    (B) The qualifying category includes debt instruments of U.S. 
government-sponsored agencies, general obligation debt instruments 
issued by states and other political subdivisions of OECD-based 
countries, multilateral development banks, and debt instruments issued 
by U.S. depository institutions or OECD-banks that do not qualify as 
capital of the issuing institution.15 This category also includes 
other debt instruments, including corporate debt and revenue instruments 
issued by states and other political subdivisions of OECD countries, 
that are:
---------------------------------------------------------------------------

    \15\ U.S. government-sponsored agencies, multilateral development 
banks, and OECD banks are defined in appendix A of this part.

---------------------------------------------------------------------------

[[Page 185]]

    (1) Rated investment-grade by at least two nationally recognized 
credit rating services;
    (2) Rated investment-grade by one nationally recognized credit 
rating agency and not rated less than investment-grade by any other 
credit rating agency; or
    (3) Unrated, but deemed to be of comparable investment quality by 
the reporting bank and the issuer has instruments listed on a recognized 
stock exchange, subject to review by the Federal Reserve.
    (C) The other category includes debt instruments that are not 
included in the government or qualifying categories.
    (2) Covered equity positions. (i) For purposes of this section 5, 
covered equity positions means equity instruments located in the trading 
account and instruments located in the trading account with values that 
react primarily to changes in equity prices, including voting or non-
voting common stock, certain convertible bonds, and commitments to buy 
or sell equity instruments. Also included are derivatives (including 
written and purchased options) for which the underlying is a covered 
equity position.
    (A) For covered equity positions that are derivatives, a bank must 
risk weight (as described in paragraph (c)(2)(iii) of this section) the 
market value of the effective notional amount of the underlying equity 
instrument or equity portfolio. Swaps must be included as the notional 
position in the underlying equity instrument or index portfolio, with a 
receiving side treated as a long position and a paying side treated as a 
short position; and
    (B) For covered equity positions that are options, whether long or 
short, a bank must risk weight (as described in paragraph (c)(2)(iii) of 
this section) the market value of the effective notional amount of the 
underlying equity instrument or index multiplied by the option's delta.
    (ii) A bank may net long and short covered equity positions 
(including derivatives) in identical equity issues or equity indices in 
the same market.16
---------------------------------------------------------------------------

    \16\ A bank may also net positions in depository receipts against an 
opposite position in the underlying equity or identical equity in 
different markets, provided that the bank includes the costs of 
conversion.
---------------------------------------------------------------------------

    (iii)(A) A bank must multiply the absolute value of the current 
market value of each net long or short covered equity position by a risk 
weighting factor of 8.0 percent, or by 4.0 percent if the equity is held 
in a portfolio that is both liquid and well-diversified.17 For 
covered equity positions that are index contracts comprising a well-
diversified portfolio of equity instruments, the net long or short 
position is multiplied by a risk weighting factor of 2.0 percent.
---------------------------------------------------------------------------

    \17\ A portfolio is liquid and well-diversified if: (1) It is 
characterized by a limited sensitivity to price changes of any single 
equity issue or closely related group of equity issues held in the 
portfolio; (2) the volatility of the portfolio's value is not dominated 
by the volatility of any individual equity issue or by equity issues 
from any single industry or economic sector; (3) it contains a large 
number of individual equity positions, with no single position 
representing a substantial portion of the portfolio's total market 
value; and (4) it consists mainly of issues traded on organized 
exchanges or in well-established over-the-counter markets.
---------------------------------------------------------------------------

    (B) For covered equity positions from the following futures-related 
arbitrage strategies, a bank may apply a 2.0 percent risk weighting 
factor to one side (long or short) of each position with the opposite 
side exempt from charge, subject to review by the Federal Reserve:
    (1) Long and short positions in exactly the same index at different 
dates or in different market centers; or
    (2) Long and short positions in index contracts at the same date in 
different but similar indices.
    (C) For futures contracts on broadly-based indices that are matched 
by offsetting positions in a basket of stocks comprising the index, a 
bank may apply a 2.0 percent risk weighting factor to the futures and 
stock basket positions (long and short), provided that such trades are 
deliberately entered into and separately controlled, and that the basket 
of stocks comprises at least 90 percent of the capitalization of the 
index.
    (iv) The specific risk capital charge component for covered equity 
positions is the sum of the weighted values.

[Reg. Y, 61 FR 47373, Sept. 6, 1996]



PART 226--TRUTH IN LENDING (REGULATION Z)--Table of Contents




                           Subpart A--General

Sec.
226.1  Authority, purpose, coverage, organization, enforcement and 
          liability.
226.2  Definitions and rules of construction.
226.3  Exempt transactions.
226.4  Finance charge.

                       Subpart B--Open-End Credit

226.5  General disclosure requirements.
226.5a  Credit and charge card applications and solicitations.
226.5b  Requirements for home equity plans.
226.6  Initial disclosure statement.
226.7  Periodic statement.
226.8  Identification of transactions.
226.9  Subsequent disclosure requirements.

[[Page 186]]

226.10  Prompt crediting of payments.
226.11  Treatment of credit balances.
226.12  Special credit card provisions.
226.13  Billing error resolution.
226.14  Determination of annual percentage rate.
226.15  Right of rescission.
226.16  Advertising.

                      Subpart C--Closed-End Credit

226.17  General disclosure requirements.
226.18  Content of disclosures.
226.19  Certain residential mortgage and variable-rate transactions.
226.20  Subsequent disclosure requirements.
226.21  Treatment of credit balances.
226.22  Determination of annual percentage rate.
226.23  Right of rescission.
226.24  Advertising.

                        Subpart D--Miscellaneous

226.25  Record retention.
226.26  Use of annual percentage rate in oral disclosures.
226.27  Spanish language disclosures.
226.28  Effect on state laws.
226.29  State exemptions.
226.30  Limitation on rates.

     Subpart E--Special Rules for Certain Home Mortgage Transactions

226.31  General rules.
226.32  Requirements for certain closed-end home mortgages.
226.33  Requirements for reverse mortgages.

Appendix A to Part 226--Effect on State Laws
Appendix B to Part 226--State Exemptions
Appendix C to Part 226--Issuance of Staff Interpretations
Appendix D to Part 226--Multiple Advance Construction Loans
Appendix E to Part 226--Rules For Card Issuers That Bill On a 
          Transaction-By-Transaction Basis
Appendix F to Part 226--Annual Percentage Rate Computations for Certain 
          Open-End Credit Plans
Appendix G to Part 226--Open-End Model Forms and Clauses
Appendix H to Part 226--Closed-End Model Forms and Clauses
Appendix I to Part 226--Federal Enforcement Agencies
Appendix J to Part 226--Annual Percentage Rate Computations For Closed-
          End Credit Transactions
Appendix K to Part 226--Total Annual Loan Cost Rate Computations for 
          Reverse Mortgage Transactions
Appendix L to Part 226--Assumed Loan Periods for Computations of Total 
          Annual Loan Cost Rates

Supplement I to Part 226--Official Staff Interpretations

    Authority: 12 U.S.C. 3806; 15 U.S.C. 1604 and 1637(c)(5).

    Source: Reg. Z, 46 FR 20892, Apr. 7, 1981, unless otherwise noted.



                           Subpart A--General



Sec. 226.1  Authority, purpose, coverage, organization, enforcement and liability.

    (a) Authority. This regulation, known as Regulation Z, is issued by 
the Board of Governors of the Federal Reserve System to implement the 
Federal Truth in Lending Act, which is contained in title I of the 
Consumer Credit Protection Act, as amended (15 U.S.C. 1601 et seq.). 
This regulation also implements title XII, section 1204 of the 
Competitive Equality Banking Act of 1987 (Pub. L. 100-86, 101 Stat. 
552). Information-collection requirements contained in this regulation 
have been approved by the Office of Management and Budget under the 
provisions of 44 U.S.C. 3501 et seq. and have been assigned OMB number 
7100-0199.
    (b) The purpose of this regulation is to promote the informed use of 
consumer credit by requiring disclosures about its terms and cost. The 
regulation gives consumers the right to cancel certain credit 
transactions that involve a lien on a consumer's principal dwelling, 
regulates certain credit card practices, and provides a means for fair 
and timely resolution of credit billing disputes. The regulation does 
not govern charges for consumer credit. The regulation requires a 
maximum interest rate to be stated in variable-rate contracts secured by 
the consumer's dwelling. It also imposes limitations on home equity 
plans that are subject to the requirements of Sec. 226.5b and mortgages 
that are subject to the requirements of Sec. 226.32.
    (c) Coverage. (1) In general, this regulation applies to each 
individual or business that offers or extends credit when four 
conditions are met: (i) The credit is offered or extended to consumers; 
(ii) the offering or extension of

[[Page 187]]

credit is done regularly;1 (iii) the credit is subject to a finance 
charge or is payable by a written agreement in more than 4 installments; 
and (iv) the credit is primarily for personal, family, or household 
purposes.
---------------------------------------------------------------------------

    1 The meaning of regularly is explained in the definition of 
creditor in Sec. 226.2(a).
---------------------------------------------------------------------------

    (2) If a credit card is involved, however, certain provisions apply 
even if the credit is not subject to a finance charge, or is not payable 
by a written agreement in more than 4 installments, or if the credit 
card is to be used for business purposes.
    (3) In addition, certain requirements of Sec. 226.5b apply to 
persons who are not creditors but who provide applications for home 
equity plans to consumers.
    (d) Organization. The regulation is divided into subparts and 
appendices as follows:
    (1) Subpart A contains general information. It sets forth: (i) The 
authority, purpose, coverage, and organization of the regulation; (ii) 
the definitions of basic terms; (iii) the transactions that are exempt 
from coverage; and (iv) the method of determining the finance charge.
    (2) Subpart B contains the rules for open-end credit. It requires 
that initial disclosures and periodic statements be provided, as well as 
additional disclosures for credit and charge card applications and 
solicitations and for home equity plans subject to the requirements of 
Secs. 226.5a and 226.5b, respectively.
    (3) Subpart C relates to closed-end credit. It contains rules on 
disclosures, treatment of credit balances, annual percentage rate 
calculations, rescission requirements, and advertising.
    (4) Subpart D contains rules on oral disclosures, Spanish language 
disclosure in Puerto Rico, record retention, effect on state laws, state 
exemptions, and rate limitations.
    (5) Subpart E relates to mortgage transactions covered by 
Sec. 226.32 and reverse mortgage transactions. It contains rules on 
disclosures, fees, and total annual loan cost rates.
    (6) Several appendices contain information such as the procedures 
for determinations about state laws, state exemptions and issuance of 
staff interpretations, special rules for certain kinds of credit plans, 
a list of enforcement agencies, and the rules for computing annual 
percentage rates in closed-end credit transactions and total annual loan 
cost rates for reverse mortgage transactions.
    (e) Enforcement and liability. Section 108 of the act contains the 
administrative enforcement provisions. Sections 112, 113, 130, 131, and 
134 contain provisions relating to liability for failure to comply with 
the requirements of the act and the regulation. Section 1204(c) of title 
XII of the Competitive Equality Banking Act of 1987, Pub. L. 100-86, 101 
Stat. 552, incorporates by reference administrative enforcement and 
civil liability provisions of sections 108 and 130 of the act.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 52 FR 43181, Nov. 9, 
1987; 54 FR 13865, Apr. 6, 1989; 54 FR 24686, June 9, 1989; 60 FR 15471, 
Mar. 24, 1995]



Sec. 226.2  Definitions and rules of construction.

    (a) Definitions. For purposes of this regulation, the following 
definitions apply:
    (1) Act means the Truth in Lending Act (15 U.S.C. 1601 et seq.).
    (2) Advertisement means a commercial message in any medium that 
promotes, directly or indirectly, a credit transaction.
    (3) [Reserved]\2\
---------------------------------------------------------------------------

    \2\ [Reserved]
---------------------------------------------------------------------------

    (4) Billing cycle or cycle means the interval between the days or 
dates of regular periodic statements. These intervals shall be equal and 
no longer than a quarter of a year. An interval will be considered equal 
if the number of days in the cycle does not vary more than 4 days from 
the regular day or date of the periodic statement.
    (5) Board means the Board of Governors of the Federal Reserve 
System.
    (6) Business day means a day on which the creditor's offices are 
open to the public for carrying on substantially all of its business 
functions. However, for purposes of rescission under Secs. 226.15 and 
226.23, and for purposes of Sec. 226.31, the term means all calendar 
days except Sundays and the legal public holidays specified in 5 U.S.C. 
6103(a), such

[[Page 188]]

as New Year's Day, the Birthday of Martin Luther King, Jr., Washington's 
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, 
Veterans Day, Thanksgiving Day, and Christmas Day.
    (7) Card issuer means a person that issues a credit card or that 
person's agent with respect to the card.
    (8) Cardholder means a natural person to whom a credit card is 
issued for consumer credit purposes, or a natural person who has agreed 
with the card issuer to pay consumer credit obligations arising from the 
issuance of a credit card to another natural person. For purposes of 
Sec. 226.12(a) and (b), the term includes any person to whom a credit 
card is issued for any purpose, including business, commercial, or 
agricultural use, or a person who has agreed with the card issuer to pay 
obligations arising from the issuance of such a credit card to another 
person.
    (9) Cash price means the price at which a creditor, in the ordinary 
course of business, offers to sell for cash the property or service that 
is the subject of the transaction. At the creditor's option, the term 
may include the price of accessories, services related to the sale, 
service contracts and taxes and fees for license, title, and 
registration. The term does not include any finance charge.
    (10) Closed-end credit means consumer credit other than open-end 
credit as defined in this section.
    (11) Consumer means a cardholder or a natural person to whom 
consumer credit is offered or extended. However, for purposes of 
rescission under Secs. 226.15 and 226.23, the term also includes a 
natural person in whose principal dwelling a security interest is or 
will be retained or acquired, if that person's ownership interest in the 
dwelling is or will be subject to the security interest.
    (12) Consumer credit means credit offered or extended to a consumer 
primarily for personal, family, or household purposes.
    (13) Consummation means the time that a consumer becomes 
contractually obligated on a credit transaction.
    (14) Credit means the right to defer payment of debt or to incur 
debt and defer its payment.
    (15) Credit card means any card, plate, coupon book, or other single 
credit device that may be used from time to time to obtain credit. 
Charge card means a credit card on an account for which no periodic rate 
is used to compute a finance charge.
    (16) Credit sale means a sale in which the seller is a creditor. The 
term includes a bailment or lease (unless terminable without penalty at 
any time by the consumer) under which the consumer:
    (i) Agrees to pay as compensation for use a sum substantially 
equivalent to, or in excess of, the total value of the property and 
services involved; and
    (ii) Will become (or has the option to become), for no additional 
consideration or for nominal consideration, the owner of the property 
upon compliance with the agreement.
    (17) Creditor means: (i) A person (A) who regularly extends consumer 
credit3 that is subject to a finance charge or is payable by 
written agreement in more than 4 installments (not including a 
downpayment), and (B) to whom the obligation is initially payable, 
either on the face of the note or contract, or by agreement when there 
is no note or contract.
---------------------------------------------------------------------------

    \3\ A person regularly extends consumer credit only if it extended 
credit (other than credit subject to the requirements of Sec. 226.32) 
more than 25 times (or more than 5 times for transactions secured by a 
dwelling) in the preceding calendar year. If a person did not meet these 
numerical standards in the preceding calendar year, the numerical 
standards shall be applied to the current calendar year. A person 
regularly extends consumer credit if, in any 12-month period, the person 
originates more than one credit extension that is subject to the 
requirements of Sec. 226.32 or one or more such credit extensions 
through a mortgage broker.
---------------------------------------------------------------------------

    (ii) For purposes of Secs. 226.4(c)(8) (discounts), 226.9(d) 
(Finance charge imposed at time of transaction), and 226.12(e) (Prompt 
notification of returns and crediting of refunds), a person that honors 
a credit card.
    (iii) For purposes of subpart B, any card issuer that extends either 
open-end credit or credit that is not subject to a finance charge and is 
not payable by written agreement in more than 4 installments.

[[Page 189]]

    (iv) For purposes of subpart B (except for the credit and charge 
card disclosures contained in Secs. 226.5(a) and 226.9 (e) and (f), the 
finance charge disclosures contained in Secs. 226.6(a) and 226.7 (d) 
through (g) and the right of rescission set forth in Sec. 226.15) and 
subpart C, any card issuer that extends closed-end credit that is 
subject to a finance charge or is payable by written agreement in more 
than 4 installments.
    (18) Downpayment means an amount, including the value of any 
property used as a trade-in, paid to a seller to reduce the cash price 
of goods or services purchased in a credit sale transaction. A deferred 
portion of a downpayment may be treated as part of the downpayment if it 
is payable not later than the due date of the second otherwise regularly 
scheduled payment and is not subject to a finance charge.
    (19) Dwelling means a residential structure that contains 1 to 4 
units, whether or not that structure is attached to real property. The 
term includes an individual condominium unit, cooperative unit, mobile 
home, and trailer, if it is used as a residence.
    (20) Open-end credit means consumer credit extended by a creditor 
under a plan in which:
    (i) The creditor reasonably contemplates repeated transactions;
    (ii) The creditor may impose a finance charge from time to time on 
an outstanding unpaid balance; and
    (iii) The amount of credit that may be extended to the consumer 
during the term of the plan (up to any limit set by the creditor) is 
generally made available to the extent that any outstanding balance is 
repaid.
    (21) Periodic rate means a rate of finance charge that is or may be 
imposed by a creditor on a balance for a day, week, month, or other 
subdivision of a year.
    (22) Person means a natural person or an organization, including a 
corporation, partnership, proprietorship, association, cooperative, 
estate, trust, or government unit.
    (23) Prepaid finance charge means any finance charge paid separately 
in cash or by check before or at consummation of a transaction, or 
withheld from the proceeds of the credit at any time.
    (24) Residential mortgage transaction means a transaction in which a 
mortgage, deed of trust, purchase money security interest arising under 
an installment sales contract, or equivalent consensual security 
interest is created or retained in the consumer's principal dwelling to 
finance the acquisition or initial construction of that dwelling.
    (25) Security interest means an interest in property that secures 
performance of a consumer credit obligation and that is recognized by 
State or Federal law. It does not include incidental interests such as 
interests in proceeds, accessions, additions, fixtures, insurance 
proceeds (whether or not the creditor is a loss payee or beneficiary), 
premium rebates, or interests in after-acquired property. For purposes 
of disclosure under Secs. 226.6 and 226.18, the term does not include an 
interest that arises solely by operation of law. However, for purposes 
of the right of rescission under Secs. 226.15 and 226.23, the term does 
include interests that arise solely by operation of law.
    (26) State means any state, the District of Columbia, the 
Commonwealth of Puerto Rico, and any territory or possession of the 
United States.
    (b) Rules of construction. For purposes of this regulation, the 
following rules of construction apply:
    (1) Where appropriate, the singular form of a word includes the 
plural form and plural includes singular.
    (2) Where the words obligation and transaction are used in this 
regulation, they refer to a consumer credit obligation or transaction, 
depending upon the context. Where the word credit is used in this 
regulation, it means consumer credit unless the context clearly 
indicates otherwise.
    (3) Unless defined in this regulation, the words used have the 
meanings given to them by state law or contract.
    (4) Footnotes have the same legal effect as the text of the 
regulation.

[Reg. Z, 46 FR 20892, Apr. 7, 1981; 46 FR 29246, June 1, 1981, as 
amended at 47 FR 7392, Feb. 19, 1982; 48 FR 14886, Apr. 6, 1983; 54 FR 
13865, Apr. 6, 1989; 60 FR 15471, Mar. 24, 1995; 61 FR 49245, Sept. 19, 
1996]

[[Page 190]]



Sec. 226.3  Exempt transactions.

    This regulation does not apply to the following:\4\
---------------------------------------------------------------------------

    \4\ The provisions in Sec. 226.12 (a) and (b) governing the issuance 
of credit cards and the liability for their unauthorized use apply to 
all credit cards, even if the credit cards are issued for use in 
connection with extensions of credit that otherwise are exempt under 
this section.
---------------------------------------------------------------------------

    (a) Business, commercial, agricultural, or organizational credit. 
(1) An extension of credit primarily for a business, commercial or 
agricultural purpose.
    (2) An extension of credit to other than a natural person, including 
credit to government agencies or instrumentalities.
    (b) Credit over $25,000 not secured by real property or a dwelling. 
An extension of credit not secured by real property, or by personal 
property used or expected to be used as the principal dwelling of the 
consumer, in which the amount financed exceeds $25,000 or in which there 
is an express written commitment to extend credit in excess of $25,000.
    (c) Public utility credit. An extension of credit that involves 
public utility services provided through pipe, wire, other connected 
facilities, or radio or similar transmission (including extensions of 
such facilities), if the charges for service, delayed payment, or any 
discounts for prompt payment are filed with or regulated by any 
government unit. The financing of durable goods or home improvements by 
a public utility is not exempt.
    (d) Securities or commodities accounts. Transactions in securities 
or commodities accounts in which credit is extended by a broker-dealer 
registered with the Securities and Exchange Commission or the Commodity 
Futures Trading Commission.
    (e) Home fuel budget plans. An installment agreement for the 
purchase of home fuels in which no finance charge is imposed.
    (f) Student loan programs. Loans made, insured, or guaranteed 
pursuant to a program authorized by title IV of the Higher Education Act 
of 1965 (20 U.S.C. 1070 et seq.).

[46 FR 20892, Apr. 7, 1981, as amended at 48 FR 14886, Apr. 6, 1983; 49 
FR 46991, Nov. 30, 1984]



Sec. 226.4  Finance charge.

    (a) Definition. The finance charge is the cost of consumer credit as 
a dollar amount. It includes any charge payable directly or indirectly 
by the consumer and imposed directly or indirectly by the creditor as an 
incident to or a condition of the extension of credit. It does not 
include any charge of a type payable in a comparable cash transaction.
    (1) Charges by third parties. The finance charge includes fees and 
amounts charged by someone other than the creditor, unless otherwise 
excluded under this section, if the creditor:
    (i) requires the use of a third party as a condition of or an 
incident to the extension of credit, even if the consumer can choose the 
third party; or
    (ii) retains a portion of the third-party charge, to the extent of 
the portion retained.
    (2) Special rule; closing agent charges. Fees charged by a third 
party that conducts the loan closing (such as a settlement agent, 
attorney, or escrow or title company) are finance charges only if the 
creditor:
    (i) Requires the particular services for which the consumer is 
charged;
    (ii) Requires the imposition of the charge; or
    (iii) Retains a portion of the third-party charge, to the extent of 
the portion retained.
    (3) Special rule; mortgage broker fees. Fees charged by a mortgage 
broker (including fees paid by the consumer directly to the broker or to 
the creditor for delivery to the broker) are finance charges even if the 
creditor does not require the consumer to use a mortgage broker and even 
if the creditor does not retain any portion of the charge.
    (b) Example of finance charge. The finance charge includes the 
following types of charges, except for charges specifically excluded by 
paragraphs (c) through (e) of this section:

[[Page 191]]

    (1) Interest, time price differential, and any amount payable under 
an add-on or discount system of additional charges.
    (2) Service, transaction, activity, and carrying charges, including 
any charge imposed on a checking or other transaction account to the 
extent that the charge exceeds the charge for a similar account without 
a credit feature.
    (3) Points, loan fees, assumption fees, finder's fees, and similar 
charges.
    (4) Appraisal, investigation, and credit report fees.
    (5) Premiums or other charges for any guarantee or insurance 
protecting the creditor against the consumer's default or other credit 
loss.
    (6) Charges imposed on a creditor by another person for purchasing 
or accepting a consumer's obligation, if the consumer is required to pay 
the charges in cash, as an addition to the obligation, or as a deduction 
from the proceeds of the obligation.
    (7) Premiums or other charges for credit life, accident, health, or 
loss-of-income insurance, written in connection with a credit 
transaction.
    (8) Premiums or other charges for insurance against loss of or 
damage to property, or against liability arising out of the ownership or 
use of property, written in connection with a credit transaction.
    (9) Discounts for the purpose of inducing payment by a means other 
than the use of credit.
    (10) Debt cancellation fees. Charges or premiums paid for debt 
cancellation coverage written in connection with a credit transaction, 
whether or not the debt cancellation coverage is insurance under 
applicable law.
    (c) Charges excluded from the finance charge. The following charges 
are not finance charges:
    (1) Application fees charged to all applicants for credit, whether 
or not credit is actually extended.
    (2) Charges for actual unanticipated late payment, for exceeding a 
credit limit, or for delinquency, default, or a similar occurrence.
    (3) Charges imposed by a financial institution for paying items that 
overdraw an account, unless the payment of such items and the imposition 
of the charge were previously agreed upon in writing.
    (4) Fees charged for participation in a credit plan, whether 
assessed on an annual or other periodic basis.
    (5) Seller's points.
    (6) Interest forfeited as a result of an interest reduction required 
by law on a time deposit used as security for an extension of credit.
    (7) Real-estate related fees. The following fees in a transaction 
secured by real property or in a residential mortgage transaction, if 
the fees are bona fide and reasonable in amount:
    (i) Fees for title examination, abstract of title, title insurance, 
property survey, and similar purposes.
    (ii) Fees for preparing loan-related documents, such as deeds, 
mortgages, and reconveyance or settlement documents.
    (iii) Notary and credit report fees.
    (iv) Property appraisal fees or fees for inspections to assess the 
value or condition of the property if the service is performed prior to 
closing, including fees related to pest infestation or flood hazard 
determinations.
    (v) Amounts required to be paid into escrow or trustee accounts if 
the amounts would not otherwise be included in the finance charge.
    (8) Discounts offered to induce payment for a purchase by cash, 
check, or other means, as provided in section 167(b) of the Act.
    (d) Insurance and debt cancellation coverage.--(1) Voluntary credit 
insurance premiums. Premiums for credit life, accident, health or loss-
of-income insurance may be excluded from the finance charge if the 
following conditions are met:
    (i) The insurance coverage is not required by the creditor, and this 
fact is disclosed in writing.
    (ii) The premium for the initial term of insurance coverage is 
disclosed. If the term of insurance is less than the term of the 
transaction, the term of insurance also shall be disclosed. The premium 
may be disclosed on a unit-cost basis only in open-end credit 
transactions, closed-end credit transactions by mail or telephone under 
Sec. 226.17(g), and certain closed-end credit transactions involving an 
insurance

[[Page 192]]

plan that limits the total amount of indebtedness subject to coverage.
    (iii) The consumer signs or initials an affirmative written request 
for the insurance after receiving the disclosures specified in this 
paragraph. Any consumer in the transaction may sign or initial the 
request.
    (2) Premiums for insurance against loss of or damage to property, or 
against liability arising out of the ownership or use of property,5 
may be excluded from the finance charge if the following conditions are 
met:
---------------------------------------------------------------------------

    5 This includes single interest insurance if the insurer waives all 
right of subrogation against the consumer.
---------------------------------------------------------------------------

    (i) The insurance coverage may be obtained from a person of the 
consumer's choice,6 and this fact is disclosed.
---------------------------------------------------------------------------

    6 A creditor may reserve the right to refuse to accept, for 
reasonable cause, an insurer offered by the consumer.
---------------------------------------------------------------------------

    (ii) If the coverage is obtained from or through the creditor, the 
premium for the initial term of insurance coverage shall be disclosed. 
If the term of insurance is less than the term of the transaction, the 
term of insurance shall also be disclosed. The premium may be disclosed 
on a unit-cost basis only in open-end credit transactions, closed-end 
credit transactions by mail or telephone under Sec. 226.17(g), and 
certain closed-end credit transactions involving an insurance plan that 
limits the total amount of indebtedness subject to coverage.
    (3) Voluntary debt cancellation fees. (i) Charges or premiums paid 
for debt cancellation coverage of the type specified in paragraph 
(d)(3)(ii) of this section may be excluded from the finance charge, 
whether or not the coverage is insurance, if the following conditions 
are met:
    (A) The debt cancellation agreement or coverage is not required by 
the creditor, and this fact is disclosed in writing;
    (B) The fee or premium for the initial term of coverage is 
disclosed. If the term of coverage is less than the term of the credit 
transaction, the term of coverage also shall be disclosed. The fee or 
premium may be disclosed on a unit-cost basis only in open-end credit 
transactions, closed-end credit transactions by mail or telephone under 
Sec. 226.17(g), and certain closed-end credit transactions involving a 
debt cancellation agreement that limits the total amount of indebtedness 
subject to coverage;
    (C) The consumer signs or initials an affirmative written request 
for coverage after receiving the disclosures specified in this 
paragraph. Any consumer in the transaction may sign or initial the 
request.
    (ii) Paragraph (d)(3)(i) of this section applies to fees paid for 
debt cancellation coverage that provides for cancellation of all or part 
of the debtor's liability for amounts exceeding the value of the 
collateral securing the obligation, or in the event of the loss of life, 
health, or income or in case of accident.
    (e) Certain security interest charges. If itemized and disclosed, 
the following charges may be excluded from the finance charge:
    (1) Taxes and fees prescribed by law that actually are or will be 
paid to public officials for determining the existence of or for 
perfecting, releasing, or satisfying a security interest.
    (2) The premium for insurance in lieu of perfecting a security 
interest to the extent that the premium does not exceed the fees 
described in paragraph (e)(1) of this section that otherwise would be 
payable.
    (3) Taxes on security instruments. Any tax levied on security 
instruments or on documents evidencing indebtedness if the payment of 
such taxes is a requirement for recording the instrument securing the 
evidence of indebtedness.
    (f) Prohibited offsets. Interest, dividends, or other income 
received or to be received by the consumer on deposits or investments 
shall not be deducted in computing the finance charge.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 61 FR 49245, Sept. 19, 
1996]



                       Subpart B--Open-End Credit



Sec. 226.5  General disclosure requirements.

    (a) Form of disclosures. (1) The creditor shall make the disclosures 
required

[[Page 193]]

by this subpart clearly and conspicuously in writing,7 in a form 
that the consumer may keep.8
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    7 The disclosure required by Sec. 226.9(d) when a finance charge is 
imposed at the time of a transaction need not be written.
    8 The disclosures required under Sec. 226.5a for credit and charge 
card applications and solicitations, the home equity disclosures 
required under Sec. 226.5b(d), the alternative summary billing rights 
statement provided for in Sec. 226.9(a)(2), the credit and charge card 
renewal disclosures required under Sec. 226.9(e), and the disclosures 
made under Sec. 226.10(b) about payment requirements need not be in a 
form that the consumer can keep.

    (2) The terms finance charge and annual percentage rate, when 
required to be disclosed with a corresponding amount or percentage rate, 
shall be more conspicuous than any other required disclosure.9
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    9 The terms need not be more conspicuous when used under Sec. 226.5a 
for credit and charge card applications and solicitations under 
Sec. 226.7(d) on periodic statements, under Sec. 226.9(e) in credit and 
charge card renewal disclosures, and under Sec. 226.16 in 
advertisements.

    (3) Certain disclosures required under Sec. 226.5a for credit and 
charge card applications and solicitations must be provided in a tabular 
format or in a prominent location in accordance with the requirements of 
that section.
    (4) For rules governing the form of disclosures for home equity 
plans, see Sec. 226.5b(a).
    (b) Time of disclosures. (1) Initial disclosures. The creditor shall 
furnish the initial disclosure statement required by Sec. 226.6 before 
the first transaction is made under the plan.
    (2) Periodic statements. (i) The creditor shall mail or deliver a 
periodic statement as required by Sec. 226.7 for each billing cycle at 
the end of which an account has a debit or credit balance of more than 
$1 or on which a finance charge has been imposed. A periodic statement 
need not be sent for an account if the creditor deems it uncollectible, 
or if delinquency collection proceedings have been instituted, or if 
furnishing the statement would violate Federal law.
    (ii) The creditor shall mail or deliver the periodic statement at 
least 14 days prior to any date or the end of any time period required 
to be disclosed under Sec. 226.7(j) in order for the consumer to avoid 
an additional finance or other charge.10 A creditor that fails to 
meet this requirement shall not collect any finance or other charge 
imposed as a result of such failure.
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    10 This timing requirement does not apply if the creditor is unable 
to meet the requirement because of an act of God, war, civil disorder, 
natural disaster, or strike.

    (3) Credit and charge card application and solicitation disclosures. 
The card issuer shall furnish the disclosures for credit and charge card 
applications and solicitations in accordance with the timing 
requirements of Sec. 226.5a.
    (4) Home equity plans. Disclosures for home equity plans shall be 
made in accordance with the timing requirements of Sec. 226.5b(b).
    (c) Basis of disclosures and use of estimates. Disclosures shall 
reflect the terms of the legal obligation between the parties. If any 
information necessary for accurate disclosure is unknown to the 
creditor, it shall make the disclosure based on the best information 
reasonably available and shall state clearly that the disclosure is an 
estimate.
    (d) Multiple creditors; multiple consumers. If the credit plan 
involves more than one creditor, only one set of disclosures shall be 
given, and the creditors shall agree among themselves which creditor 
must comply with the requirements that this regulation imposes on any or 
all of them. If there is more than one consumer, the disclosures may be 
made to any consumer who is primarily liable on the account. If the 
right of rescission under Sec. 226.15 is applicable, however, the 
disclosures required by Secs. 226.6 and 226.15(b) shall be made to each 
consumer having the right to rescind.
    (e) Effect of subsequent events. If a disclosure becomes inaccurate 
because of an event that occurs after the creditor mails or delivers the 
disclosures, the resulting inaccuracy is not a violation of this 
regulation, although new disclosures may be required under 
Sec. 226.9(c).

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 54 FR 13865, Apr. 6, 
1989; 54 FR 24686, June 9, 1989]

[[Page 194]]



Sec. 226.5a  Credit and charge card applications and solicitations.

    (a) General rules. The card issuer shall provide the disclosures 
required under this section on or with a solicitation or an application 
to open a credit or charge card account.
    (1) Definition of solicitation. For purposes of this section, the 
term solicitation means an offer by the card issuer to open a credit or 
charge card account that does not require the consumer to complete an 
application.
    (2) Form of disclosures. (i) The disclosures in paragraphs (b) (1) 
through (7) of this section shall be provided in a prominent location on 
or with an application or a solicitation, or other applicable document, 
and in the form of a table with headings, content, and format 
substantially similar to any of the applicable tables found in appendix 
G.
    (ii) The disclosures in paragraphs (b) (8) through (10) of this 
section shall be provided either in the table containing the disclosures 
in paragraphs (b) (1) through (7), or clearly and conspicuously 
elsewhere on or with the application or solicitation.
    (iii) The disclosure required under paragraph (b)(5) of this section 
shall contain the term grace period.
    (iv) The terminology in the disclosures under paragraph (b) of this 
section shall be consistent with that to be used in the disclosures 
under Secs. 226.6 and 226.7.
    (3) Exceptions. This section does not apply to home equity plans 
accessible by a credit or charge card that are subject to the 
requirements of Sec. 226.5b;
    (4) Fees based on a percentage. If the amount of any fee required to 
be disclosed under this section is determined on the basis of a 
percentage of another amount, the percentage used and the identification 
of the amount against which the percentage is applied may be disclosed 
instead of the amount of the fee.
    (5) Certain fees that vary by state. If the amount of any fee 
referred to in paragraphs (b) (8) through (10) of this section varies 
from state to state, the card issuer may disclose the range of the fees 
instead of the amount for each state, if the disclosure includes a 
statement that the amount of the fee varies from state to state.
    (b) Required disclosures. The card issuer shall disclose the items 
in this paragraph on or with an application or a solicitation in 
accordance with the requirements of paragraphs (c), (d) or (e) of this 
section. A credit card issuer shall disclose all applicable items in 
this paragraph except for paragraph (b)(7) of this section. A charge 
card issuer shall disclose the applicable items in paragraphs (b) (2), 
(4), and (7) through (10) of this section.
    (1) Annual percentage rate. Each periodic rate that may be used to 
compute the finance charge on an outstanding balance for purchases, 
expressed as an annual percentage rate (as determined by 
Sec. 226.14(b)). When more than one rate applies, the range of balances 
to which each rate is applicable shall also be disclosed.
    (i) If the account has a variable rate, the card issuer shall also 
disclose the fact that the rate may vary and how the rate is determined.
    (ii) When variable rate disclosures are provided under paragraph (c) 
of this section, an annual percentage rate disclosure is accurate if the 
rate was in effect within 60 days before mailing the disclosures. When 
variable rate disclosures are provided under paragraph (e) of this 
section, an annual percentage rate disclosure is accurate if the rate 
was in effect within 30 days before printing the disclosures.
    (2) Fees for issuance or availability. Any annual or other periodic 
fee, expressed as an annualized amount, or any other fee that may be 
imposed for the issuance or availability of a credit or charge card, 
including any fee based on account activity or inactivity.
    (3) Minimum finance charge. Any minimum or fixed finance charge that 
could be imposed during a billing cycle.
    (4) Transaction charges. Any transaction charge imposed for the use 
of the card for purchases.
    (5) Grace period. The date by which or the period within which any 
credit extended for purchases may be repaid without incurring a finance 
charge. If no grace period is provided, that fact must be disclosed. If 
the length of the grace period varies, the card issuer may disclose the 
range of days, the minimum number of days, or the average number of days 
in the grace period,

[[Page 195]]

if the disclosure is identified as a range, minimum, or average.
    (6) Balance computation method. The name of the balance computation 
method listed in paragraph (g) of this section that is used to determine 
the balance for purchases on which the finance charge is computed, or an 
explanation of the method used if it is not listed. The explanation may 
appear outside the table if the table contains a reference to the 
explanation. In determining which balance computation method to 
disclose, the card issuer shall assume that credit extended for 
purchases will not be repaid within the grace period, if any.
    (7) Statement on charge card payments. A statement that charges 
incurred by use of the charge card are due when the periodic statement 
is received.
    (8) Cash advance fee. Any fee imposed for an extension of credit in 
the form of cash.
    (9) Late payment fee. Any fee imposed for a late payment.
    (10) Over-the-limit fee. Any fee imposed for exceeding a credit 
limit.
    (c) Direct mail applications and solicitations. The card issuer 
shall disclose the applicable items in paragraph (b) of this section on 
or with an application or solicitation that is mailed to consumers.
    (d) Telephone applications and solicitations--(1) Oral disclosure. 
The card issuer shall orally disclose the information in paragraphs (b) 
(1) through (7) of this section, to the extent applicable, in a 
telephone application or solicitation initiated by the card issuer.
    (2) Alternative disclosure. The oral disclosure under paragraph 
(d)(1) of this section need not be given if the card issuer either does 
not impose a fee described in paragraph (b)(2) of this section or does 
not impose such a fee unless the consumer uses the card, and the card 
issuer discloses in writing within 30 days after the consumer requests 
the card (but in no event later than the delivery of the card) the 
following:
    (i) The applicable information in paragraph (b) of this section; and
    (ii) The fact that the consumer need not accept the card or pay any 
fee disclosed unless the consumer uses the card.
    (e) Applications and solicitations made available to general public. 
The card issuer shall provide disclosures, to the extent applicable, on 
or with an application or solicitation that is made available to the 
general public, including one contained in a catalog, magazine, or other 
generally available publication. The disclosures shall be provided in 
accordance with paragraph (e) (1), (2) or (3) of this section.
    (1) Disclosure of required credit information. The card issuer may 
disclose in a prominent location on the application or solicitation the 
following:
    (i) The applicable information in paragraph (b) of this section;
    (ii) The date the required information was printed, including a 
statement that the required information was accurate as of that date and 
is subject to change after that date; and
    (iii) A statement that the consumer should contact the card issuer 
for any change in the required information since it was printed, and a 
toll-free telephone number or a mailing address for that purpose.
    (2) Inclusion of certain initial disclosures. The card issuer may 
disclose on or with the application or solicitation the following:
    (i) The disclosures required under Sec. 226.6 (a) through (c); and
    (ii) A statement that the consumer should contact the card issuer 
for any change in the required information, and a toll-free telephone 
number or a mailing address for that purpose.
    (3) No disclosure of credit information. If none of the items in 
paragraph (b) of this section is provided on or with the application or 
solicitation, the card issuer may state in a prominent location on the 
application or solicitation the following:
    (i) There are costs associated with the use of the card; and
    (ii) The consumer may contact the card issuer to request specific 
information about the costs, along with a toll-free telephone number and 
a mailing address for that purpose.
    (4) Prompt response to requests for information. Upon receiving a 
request for any of the information referred to in this paragraph, the 
card issuer shall promptly and fully disclose the information requested.

[[Page 196]]

    (f) Special charge card rule--card issuer and person extending 
credit not the same person. If a cardholder may by use of a charge card 
access an open-end credit plan that is not maintained by the charge card 
issuer, the card issuer need not provide the disclosures in paragraphs 
(c), (d) or (e) of this section for the open-end credit plan if the card 
issuer states on or with an application or a solicitation the following:
    (1) The card issuer will make an independent decision whether to 
issue the card;
    (2) The charge card may arrive before the decision is made about 
extending credit under the open-end credit plan; and
    (3) Approval for the charge card does not constitute approval for 
the open-end credit plan.
    (g) Balance computation methods defined. The following methods may 
be described by name. Methods that differ due to variations such as the 
allocation of payments, whether the finance charge begins to accrue on 
the transaction date or the date of posting the transaction, the 
existence or length of a grace period, and whether the balance is 
adjusted by charges such as late fees, annual fees and unpaid finance 
charges do not constitute separate balance computation methods.
    (1)(i) Average daily balance (including new purchases). This balance 
is figured by adding the outstanding balance (including new purchases 
and deducting payments and credits) for each day in the billing cycle, 
and then dividing by the number of days in the billing cycle.
    (ii) Average daily balance (excluding new purchases). This balance 
is figured by adding the outstanding balance (excluding new purchases 
and deducting payments and credits) for each day in the billing cycle, 
and then dividing by the number of days in the billing cycle.
    (2)(i) Two-cycle average daily balance (including new purchases). 
This balance is the sum of the average daily balances for two billing 
cycles. The first balance is for the current billing cycle, and is 
figured by adding the outstanding balance (including new purchases and 
deducting payments and credits) for each day in the billing cycle, and 
then dividing by the number of days in the billing cycle. The second 
balance is for the preceding billing cycle.
    (ii) Two-cycle average daily balance (excluding new purchases). This 
balance is the sum of the average daily balances for two billing cycles. 
The first balance is for the current billing cycle, and is figured by 
adding the outstanding balance (excluding new purchases and deducting 
payments and credits) for each day in the billing cycle, and then 
dividing by the number of days in the billing cycle. The second balance 
is for the preceding billing cycle.
    (3) Adjusted balance. This balance is figured by deducting payments 
and credits made during the billing cycle from the outstanding balance 
at the beginning of the billing cycle.
    (4) Previous balance. This balance is the outstanding balance at the 
beginning of the billing cycle.

[Reg. Z, 54 FR 13865, Apr. 6, 1989, as amended at 54 FR 24686, June 9, 
1989; 54 FR 32954, Aug. 11, 1989]



Sec. 226.5b  Requirements for home equity plans.

    The requirements of this section apply to open-end credit plans 
secured by the consumer's dwelling. For purposes of this section, an 
annual percentage rate is the annual percentage rate corresponding to 
the periodic rate as determined under Sec. 226.14(b).
    (a) Form of disclosures--(1) General. The disclosures required by 
paragraph (d) of this section shall be made clearly and conspicuously 
and shall be grouped together and segregated from all unrelated 
information. The disclosures may be provided on the application form or 
on a separate form. The disclosure described in paragraph (d)(4)(iii), 
the itemization of third-party fees described in paragraph (d)(8), and 
the variable-rate information described in paragraph (d)(12) of this 
section may be provided separately from the other required disclosures.
    (2) Precedence of certain disclosures. The disclosures described in 
paragraph (d)(1) through (4)(ii) of this section shall precede the other 
required disclosures.
    (b) Time of disclosures. The disclosures and brochure required by 
paragraphs

[[Page 197]]

(d) and (e) of this section shall be provided at the time an application 
is provided to the consumer.10 a
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    10 a The disclosures and the brochure may be delivered or placed in 
the mail not later than three business days following receipt of a 
consumer's application in the case of applications contained in 
magazines or other publications, or when the application is received by 
telephone or through an intermediary agent or broker.
---------------------------------------------------------------------------

    (c) Duties of third parties. Persons other than the creditor who 
provide applications to consumers for home equity plans must provide the 
brochure required under paragraph (e) of this section at the time an 
application is provided. If such persons have the disclosures required 
under paragraph (d) of this section for a creditor's home equity plan, 
they also shall provide the disclosures at such time.10 a
    (d) Content of disclosures. The creditor shall provide the following 
disclosures, as applicable:
    (1) Retention of information. A statement that the consumer should 
make or otherwise retain a copy of the disclosures.
    (2) Conditions for disclosed terms. (i) A statement of the time by 
which the consumer must submit an application to obtain specific terms 
disclosed and an identification of any disclosed term that is subject to 
change prior to opening the plan.
    (ii) A statement that, if a disclosed term changes (other than a 
change due to fluctuations in the index in a variable-rate plan) prior 
to opening the plan and the consumer therefore elects not to open the 
plan, the consumer may receive a refund of all fees paid in connection 
with the application.
    (3) Security interest and risk to home. A statement that the 
creditor will acquire a security interest in the consumer's dwelling and 
that loss of the dwelling may occur in the event of default.
    (4) Possible actions by creditor. (i) A statement that, under 
certain conditions, the creditor may terminate the plan and require 
payment of the outstanding balance in full in a single payment and 
impose fees upon termination; prohibit additional extensions of credit 
or reduce the credit limit; and, as specified in the initial agreement, 
implement certain changes in the plan.
    (ii) A statement that the consumer may receive, upon request, 
information about the conditions under which such actions may occur.
    (iii) In lieu of the disclosure required under paragraph (d)(4)(ii) 
of this section, a statement of such conditions.
    (5) Payment terms. The payment terms of the plan, including:
    (i) The length of the draw period and any repayment period.
    (ii) An explanation of how the minimum periodic payment will be 
determined and the timing of the payments. If paying only the minimum 
periodic payments may not repay any of the principal or may repay less 
than the outstanding balance, a statement of this fact, as well as a 
statement that a balloon payment may result.10 b
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    10 b A balloon payment results if paying the minimum periodic 
payments does not fully amortize the outstanding balance by a specified 
date or time, and the consumer must repay the entire outstanding balance 
at such time.
---------------------------------------------------------------------------

    (iii) An example, based on a $10,000 outstanding balance and a 
recent annual percentage rate,10 c showing the minimum periodic 
payment, any balloon payment, and the time it would take to repay the 
$10,000 outstanding balance if the consumer made only those payments and 
obtained no additional extensions of credit.
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    10 c For fixed-rate plans, a recent annual percentage rate is a rate 
that has been in effect under the plan within the twelve months 
preceding the date the disclosures are provided to the consumer. For 
variable-rate plans, a recent annual percentage rate is the most recent 
rate provided in the historical example described in paragraph 
(d)(12)(xi) of this section or a rate that has been in effect under the 
plan since the date of the most recent rate in the table.

If different payment terms may apply to the draw and any repayment 
period, or if different payment terms may apply within either period, 
the disclosures shall reflect the different payment terms.
    (6) Annual percentage rate. For fixed-rate plans, a recent annual 
percentage rate10 c imposed under the plan and a statement that the 
rate does not include costs other than interest.

[[Page 198]]

    (7) Fees imposed by creditor. An itemization of any fees imposed by 
the creditor to open, use, or maintain the plan, stated as a dollar 
amount or percentage, and when such fees are payable.
    (8) Fees imposed by third parties to open a plan. A good faith 
estimate, stated as a single dollar amount or range, of any fees that 
may be imposed by persons other than the creditor to open the plan, as 
well as a statement that the consumer may receive, upon request, a good 
faith itemization of such fees. In lieu of the statement, the 
itemization of such fees may be provided.
    (9) Negative amortization. A statement that negative amortization 
may occur and that negative amortization increases the principal balance 
and reduces the consumer's equity in the dwelling.
    (10) Transaction requirements. Any limitations on the number of 
extensions of credit and the amount of credit that may be obtained 
during any time period, as well as any minimum outstanding balance and 
minimum draw requirements, stated as dollar amounts or percentages.
    (11) Tax implications. A statement that the consumer should consult 
a tax advisor regarding the deductibility of interest and charges under 
the plan.
    (12) Disclosures for variable-rate plans. For a plan in which the 
annual percentage rate is variable, the following disclosures, as 
applicable:
    (i) The fact that the annual percentage rate, payment, or term may 
change due to the variable-rate feature.
    (ii) A statement that the annual percentage rate does not include 
costs other than interest.
    (iii) The index used in making rate adjustments and a source of 
information about the index.
    (iv) An explanation of how the annual percentage rate will be 
determined, including an explanation of how the index is adjusted, such 
as by the addition of a margin.
    (v) A statement that the consumer should ask about the current index 
value, margin, discount or premium, and annual percentage rate.
    (vi) A statement that the initial annual percentage rate is not 
based on the index and margin used to make later rate adjustments, and 
the period of time such initial rate will be in effect.
    (vii) The frequency of changes in the annual percentage rate.
    (viii) Any rules relating to changes in the index value and the 
annual percentage rate and resulting changes in the payment amount, 
including, for example, an explanation of payment limitations and rate 
carryover.
    (ix) A statement of any annual or more frequent periodic limitations 
on changes in the annual percentage rate (or a statement that no annual 
limitation exists), as well as a statement of the maximum annual 
percentage rate that may be imposed under each payment option.
    (x) The minimum periodic payment required when the maximum annual 
percentage rate for each payment option is in effect for a $10,000 
outstanding balance, and a statement of the earliest date or time the 
maximum rate may be imposed.
    (xi) An historical example, based on a $10,000 extension of credit, 
illustrating how annual percentage rates and payments would have been 
affected by index value changes implemented according to the terms of 
the plan. The historical example shall be based on the most recent 15 
years of index values (selected for the same time period each year) and 
shall reflect all significant plan terms, such as negative amortization, 
rate carryover, rate discounts, and rate and payment limitations, that 
would have been affected by the index movement during the period.
    (xii) A statement that rate information will be provided on or with 
each periodic statement.
    (e) Brochure. The home equity brochure published by the Board or a 
suitable substitute shall be provided.
    (f) Limitations on home equity plans. No creditor may, by contract 
or otherwise:
    (1) Change the annual percentage rate unless:
    (i) Such change is based on an index that is not under the 
creditor's control; and
    (ii) Such index is available to the general public.
    (2) Terminate a plan and demand repayment of the entire outstanding 
balance in advance of the original term

[[Page 199]]

(except for reverse mortgage transactions that are subject to paragraph 
(f)(4) of this section) unless:
    (i) There is fraud or material misrepresentation by the consumer in 
connection with the plan;
    (ii) The consumer fails to meet the repayment terms of the agreement 
for any outstanding balance;
    (iii) Any action or inaction by the consumer adversely affects the 
creditor's security for the plan, or any right of the creditor in such 
security; or
    (iv) Federal law dealing with credit extended by a depository 
institution to its executive officers specifically requires that as a 
condition of the plan the credit shall become due and payable on demand, 
provided that the creditor includes such a provision in the initial 
agreement.
    (3) Change any term, except that a creditor may:
    (i) Provide in the initial agreement that it may prohibit additional 
extensions of credit or reduce the credit limit during any period in 
which the maximum annual percentage rate is reached. A creditor also may 
provide in the initial agreement that specified changes will occur if a 
specified event takes place (for example, that the annual percentage 
rate will increase a specified amount if the consumer leaves the 
creditor's employment).
    (ii) Change the index and margin used under the plan if the original 
index is no longer available, the new index has an historical movement 
substantially similar to that of the original index, and the new index 
and margin would have resulted in an annual percentage rate 
substantially similar to the rate in effect at the time the original 
index became unavailable.
    (iii) Make a specified change if the consumer specifically agrees to 
it in writing at that time.
    (iv) Make a change that will unequivocally benefit the consumer 
throughout the remainder of the plan.
    (v) Make an insignificant change to terms.
    (vi) Prohibit additional extensions of credit or reduce the credit 
limit applicable to an agreement during any period in which:
    (A) The value of the dwelling that secures the plan declines 
significantly below the dwelling's appraised value for purposes of the 
plan;
    (B) The creditor reasonably believes that the consumer will be 
unable to fulfill the repayment obligations under the plan because of a 
material change in the consumer's financial circumstances;
    (C) The consumer is in default of any material obligation under the 
agreement;
    (D) The creditor is precluded by government action from imposing the 
annual percentage rate provided for in the agreement;
    (E) The priority of the creditor's security interest is adversely 
affected by government action to the extent that the value of the 
security interest is less than 120 percent of the credit line; or
    (F) The creditor is notified by its regulatory agency that continued 
advances constitute an unsafe and unsound practice.
    (4) For reverse mortgage transactions that are subject to 
Sec. 226.33, terminate a plan and demand repayment of the entire 
outstanding balance in advance of the original term except:
    (i) In the case of default;
    (ii) If the consumer transfers title to the property securing the 
note;
    (iii) If the consumer ceases using the property securing the note as 
the primary dwelling; or
    (iv) Upon the consumer's death.
    (g) Refund of fees. A creditor shall refund all fees paid by the 
consumer to anyone in connection with an application if any term 
required to be disclosed under paragraph (d) of this section changes 
(other than a change due to fluctuations in the index in a variable-rate 
plan) before the plan is opened and, as a result, the consumer elects 
not to open the plan.
    (h) Imposition of nonrefundable fees. Neither a creditor nor any 
other person may impose a nonrefundable fee in connection with an 
application until three business days after the consumer receives the 
disclosures and brochure required under this section.10 d
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    10 d If the disclosures and brochure are mailed to the consumer, the 
consumer is considered to have received them three business days after 
they are mailed.


[[Page 200]]


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[Reg. Z, 54 FR 24686, June 9, 1989, as amended at 55 FR 38312, Sept. 18, 
1990; 55 FR 42148, Oct. 17, 1990; 57 FR 34681, Aug. 6, 1992; 60 FR 
15471, Mar. 24, 1995]



Sec. 226.6  Initial disclosure statement.

    The creditor shall disclose to the consumer, in terminology 
consistent with that to be used on the periodic statement, each of the 
following items, to the extent applicable:
    (a) Finance charge. The circumstances under which a finance charge 
will be imposed and an explanation of how it will be determined, as 
follows:
    (1) A statement of when finance charges begin to accrue, including 
an explanation of whether or not any time period exists within which any 
credit extended may be repaid without incurring a finance charge. If 
such a time period is provided, a creditor may, at its option and 
without disclosure, impose no finance charge when payment is received 
after the time period's expiration.
    (2) A disclosure of each periodic rate that may be used to compute 
the finance charge, the range of balances to which it is 
applicable,11 and the corresponding annual percentage rate.12 
When different periodic rates apply to different types of transactions, 
the types of transactions to which the periodic rates apply shall also 
be disclosed.
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    11 A creditor is not required to adjust the range of balances 
disclosure to reflect the balance below which only a minimum charge 
applies.
    12 If a creditor is offering a variable rate plan, the creditor 
shall also disclose: (1) The circumstances under which the rate(s) may 
increase; (2) any limitations on the increase; and (3) the effect(s) of 
an increase.
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    (3) An explanation of the method used to determine the balance on 
which the finance charge may be computed.
    (4) An explanation of how the amount of any finance charge will be 
determined,13 including a description of how any finance charge 
other than the periodic rate will be determined.
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    13 If no finance charge is imposed when the outstanding balance is 
less than a certain amount, no disclosure is required of that fact or of 
the balance below which no finance charge will be imposed.
---------------------------------------------------------------------------

    (b) Other charges. The amount of any charge other than a finance 
charge that may be imposed as part of the plan, or an explanation of how 
the charge will be determined.
    (c) Security interests. The fact that the creditor has or will 
acquire a security interest in the property purchased under the plan, or 
in other property identified by item or type.
    (d) Statement of billing rights. A statement that outlines the 
consumer's rights and the creditor's responsibilities under 
Secs. 226.12(c) and 226.13 and that is substantially similar to the 
statement found in appendix G.
    (e) Home equity plan information. The following disclosures 
described in Sec. 226.5b(d), as applicable:
    (1) A statement of the conditions under which the creditor may take 
certain action, as described in Sec. 226.5b(d)(4)(i), such as 
terminating the plan or changing the terms.
    (2) The payment information described in Sec. 226.5b(d)(5) (i) and 
(ii) for both the draw period and any repayment period.
    (3) A statement that negative amortization may occur as described in 
Sec. 226.5b(d)(9).
    (4) A statement of any transaction requirements as described in 
Sec. 226.5b(d)(10).
    (5) A statement regarding the tax implications as described in 
Sec. 226.5b(d)(11).
    (6) A statement that the annual percentage rate imposed under the 
plan does not include costs other than interest as described in 
Secs. 226.5b(d)(6) and (d)(12)(ii).
    (7) The variable-rate disclosures described in Sec. 226.5b(d)(12) 
(viii), (x), (xi), and (xii), as well as the disclosure described in 
Sec. 226.5b(d)(5)(iii), unless the disclosures provided with the 
application were in a form the consumer could keep and included a 
representative payment example for the category of payment option chosen 
by the consumer.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 54 FR 24688, June 9, 
1989]



Sec. 226.7  Periodic statement.

    The creditor shall furnish the consumer with a periodic statement 
that discloses the following items, to the extent applicable:
    (a) Previous balance. The account balance outstanding at the 
beginning of the billing cycle.

[[Page 201]]

    (b) Identification of transactions. An identification of each credit 
transaction in accordance with Sec. 226.8.
    (c) Credits. Any credit to the account during the billing cycle, 
including the amount and the date of crediting. The date need not be 
provided if a delay in crediting does not result in any finance or other 
charge.
    (d) Periodic rates. Each periodic rate that may be used to compute 
the finance charge, the range of balances to which it is 
applicable,14 and the corresponding annual percentage rate.15 
If different periodic rates apply to different types of transactions, 
the types of transactions to which the periodic rates apply shall also 
be disclosed.
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    14 See Footnotes 11 and 13.
    15 If a variable rate plan is involved, the creditor shall disclose 
the fact that the periodic rate(s) may vary.
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    (e) Balance on which finance charge computed. The amount of the 
balance to which a periodic rate was applied and an explanation of how 
that balance was determined. When a balance is determined without first 
deducting all credits and payments made during the billing cycle, that 
fact and the amount of the credits and payments shall be disclosed.
    (f) Amount of finance charge. The amount of any finance charge 
debited or added to the account during the billing cycle, using the term 
finance charge. The components of the finance charge shall be 
individually itemized and identified to show the amount(s) due to the 
appliction of any periodic rates and the amount(s) of any other type of 
finance charge. If there periodic rate, the amount of the finance charge 
attributable to each rate need not be separately itemized and 
identified.
    (g) Annual percentage rate. When a finance charge is imposed during 
the billing cycle, the annual percentage rate(s) determined under 
Sec. 226.14, using the term annual percentage rate.
    (h) Other charges. The amounts, itemized and identified by type, of 
any charges other than finance charges debited to the account during the 
billing cycle.
    (i) Closing date of billing cycle; new balance. The closing date of 
the billing cycle and the account balance outstanding on that date.
    (j) Free-ride period. The date by which or the time period within 
which the new balance or any portion of the new balance must be paid to 
avoid additional finance charges. If such a time period is provided, a 
creditor may, at its option and without disclosure, impose no finance 
charge when payment is received after the time period's expiration.
    (k) Address for notice of billing errors. The address to be used for 
notice of billing errors. Alternatively, the address may be provided on 
the billing rights statement permitted by Sec. 226.9(a)(2).

[46 FR 20892, Apr. 7, 1981; 46 FR 29246, June 1, 1981]



Sec. 226.8  Identification of transactions.

    The creditor shall identify credit transactions on or with the first 
periodic statement that reflects the transaction by furnishing the 
following information, as applicable.16
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    16 Failure to disclose the information required by this section 
shall not be deemed a failure to comply with the regulation if: (1) The 
creditor maintains procedures reasonably adapted to obtain and provide 
the information; and (2) the creditor treats an inquiry for 
clarification or documentation as a notice of a billing error, including 
correcting the account in accordance with Sec. 226.13(e). This applies 
to transactions that take place outside a state, as defined in 
Sec. 226.2(a), whether or not the creditor maintains procedures 
reasonably adapted to obtain the required information.
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    (a) Sale credit. For each credit transaction involving the sale of 
property or services, the following rules shall apply:
    (1) Copy of credit document provided. When an actual copy of the 
receipt or other credit document is provided with the first periodic 
statement reflecting the transaction, the transaction is sufficiently 
identified if the amount of the transaction and either the date of the 
transaction or the date of debiting the transaction to the consumer's 
account are disclosed on the copy or on the periodic statement.
    (2) Copy of credit document not provided--creditor and seller same 
or related person(s). When the creditor and the seller are the same 
person or related

[[Page 202]]

persons, and an actual copy of the receipt or other credit document is 
not provided with the periodic statement, the creditor shall disclose 
the amount and date of the transaction, and a brief 
identification17 of the property or services purchased.18
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    17 As an alternative to the brief identification, the creditor may 
disclose a number or symbol that also appears on the receipt or other 
credit document given to the consumer, if the number or symbol 
reasonably identifies that transaction with that creditor, and if the 
creditor treats an inquiry for clarification or documentation as a 
notice of a billing error, including correcting the account in 
accordance with Sec. 226.13(e).
    18 An identification of property or services may be replaced by the 
seller's name and location of the transaction when: (1) The creditor and 
the seller are the same person; (2) the creditor's open-end plan has 
fewer than 15,000 accounts; (3) the creditor provides the consumer with 
point-of-sale documentation for that transaction; and (4) the creditor 
treats an inquiry for clarification or documentation as a notice of a 
billing error, including correcting the account in accordance with 
Sec. 226.13(e).
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    (3) Copy of credit document not provided--creditor and seller not 
same or related person(s). When the creditor and seller are not the same 
person or related persons, and an actual copy of the receipt or other 
credit document is not provided with the periodic statement, the 
creditor shall disclose the amount and date of the transaction; the 
seller's name; and the city, and state or foreign country where the 
transaction took place.19
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    19 The creditor may omit the address or provide any suitable 
designation that helps the consumer to identify the transaction when the 
transaction (1) took place at a location that is not fixed; (2) took 
place in the consumer's home; or (3) was a mail or telephone order.
---------------------------------------------------------------------------

    (b) Nonsale credit. A nonsale credit transaction is sufficiently 
identified if the first periodic statement reflecting the transaction 
discloses a brief identification of the transaction;20 the amount 
of the transaction; and at least one of the following dates: the date of 
the transaction, the date of debiting the transaction to the consumer's 
account, or, if the consumer signed the credit document, the date 
appearing on the document. If an actual copy of the receipt or other 
credit document is provided and that copy shows the amount and at least 
one of the specified dates, the brief identification may be omitted.
---------------------------------------------------------------------------

    20 See Footnote 17.

[46 FR 20892, Apr. 7, 1981; 46 FR 29246, June 1, 1981]



Sec. 226.9  Subsequent disclosure requirements.

    (a) Furnishing statement of billing rights--(1) Annual statement. 
The creditor shall mail or deliver the billing rights statement required 
by Sec. 226.6(d) at least once per calendar year, at intervals of not 
less than 6 months nor more than 18 months, either to all consumers or 
to each consumer entitled to receive a periodic statement under 
Sec. 226.5(b)(2) for any one billing cycle.
    (2) Alternative summary statement. As an alternative to paragraph 
(a)(1) of this section, the creditor may mail or deliver, on or with 
each periodic statement, a statement substantially similar to that in 
appendix G.
    (b) Disclosures for supplemental credit devices and additional 
features--(1) If a creditor, within 30 days after mailing or delivering 
the initial disclosures under Sec. 226.6(a), adds a credit feature to 
the consumer's account or mails or delivers to the consumer a credit 
device for which the finance charge terms are the same as those 
previously disclosed, no additional disclosures are necessary. After 30 
days, if the creditor adds a credit feature or furnishes a credit device 
(other than as a renewal, resupply, or the original issuance of a credit 
card) on the same finance charge terms, the creditor shall disclose, 
before the consumer uses the feature or device for the first time, that 
it is for use in obtaining credit under the terms previously disclosed.
    (2) Whenever a credit feature is added or a credit device is mailed 
or delivered, and the finance charge terms for the feature or device 
differ from disclosures previously given, the disclosures required by 
Sec. 226.6(a) that are applicable to the added feature or device shall 
be given before the consumer uses the feature or device for the first 
time.
    (c) Change in terms--(1) Written notice required. Whenever any term 
required to be disclosed under Sec. 226.6 is changed

[[Page 203]]

or the required minimum periodic payment is increased, the creditor 
shall mail or deliver written notice of the change to each consumer who 
may be affected. The notice shall be mailed or delivered at least 15 
days prior to the effective date of the change. The 15-day timing 
requirement does not apply if the change has been agreed to by the 
consumer, or if a periodic rate or other finance charge is increased 
because of the consumer's delinquency or default; the notice shall be 
given, however, before the effective date of the change.
    (2) Notice not required. No notice under this section is required 
when the change involves late payment charges, charges for documentary 
evidence, or over-the-limit charges; a reduction of any component of a 
finance or other charge; suspension of future credit privileges or 
termination of an account or plan; or when the change results from an 
agreement involving a court proceeding, or from the consumer's default 
or delinquency (other than an increase in the periodic rate or other 
finance charge).
    (3) Notice for home equity plans. If a creditor prohibits additional 
extensions of credit or reduces the credit limit applicable to a home 
equity plan pursuant to Sec. 226.5b(f)(3)(i) or Sec. 226.5b(f)(3)(vi), 
the creditor shall mail or deliver written notice of the action to each 
consumer who will be affected. The notice must be provided not later 
than three business days after the action is taken and shall contain 
specific reasons for the action. If the creditor requires the consumer 
to request reinstatement of credit privileges, the notice also shall 
state that fact.
    (d) Finance charge imposed at time of transaction. (1) Any person, 
other than the card issuer, who imposes a finance charge at the time of 
honoring a consumer's credit card, shall disclose the amount of that 
finance charge prior to its imposition.
    (2) The card issuer, if other than the person honoring the 
consumer's credit card, shall have no responsibility for the disclosure 
required by paragraph (d)(1) of this section, and shall not consider any 
such charge for purposes of Secs. 226.5a, 226.6 and 226.7.
    (e) Disclosures upon renewal of credit or charge card. (1) Notice 
prior to renewal. Except as provided in paragraph (e)(2) of this 
section, a card issuer that imposes any annual or other periodic fee to 
renew a credit or charge card account of the type subject to 
Sec. 226.5a, including any fee based on account activity or inactivity, 
shall mail or deliver written notice of the renewal to the cardholder. 
The notice shall be provided at least 30 days or one billing cycle, 
whichever is less, before the mailing or the delivery of the periodic 
statement on which the renewal fee is initially charged to the account. 
The notice shall contain the following information:
    (i) The disclosures contained in Sec. 226.5a(b) (1) through (7) that 
would apply if the account were renewed;20 a and
---------------------------------------------------------------------------

    20 a These disclosures need not be provided in tabular format or in 
a prominent location.
---------------------------------------------------------------------------

    (ii) How and when the cardholder may terminate credit availability 
under the account to avoid paying the renewal fee.
    (2) Delayed notice. The disclosures required by paragraph (e)(1) of 
this section may be provided later than the time in paragraph (e)(1) of 
this section, but no later than the mailing or the delivery of the 
periodic statement on which the renewal fee is initially charged to the 
account, if the card issuer also discloses at that time that:
    (i) The cardholder has 30 days from the time the periodic statement 
is mailed or delivered to avoid paying the fee or to have the fee 
recredited if the cardholder terminates credit availability under the 
account; and
    (ii) The cardholder may use the card during the interim period 
without having to pay the fee.
    (3) Notification on periodic statements. The disclosures required by 
this paragraph may be made on or with a periodic statement. If any of 
the disclosures are provided on the back of a periodic statement, the 
card issuer shall include a reference to those disclosures on the front 
of the statement.
    (f) Change in credit card account insurance provided--(1) Notice 
prior to change. If a credit card issuer plans to change the provider of 
insurance for repayment of all or part of the outstanding

[[Page 204]]

balance of an open-end credit card account of the type subject to 
Sec. 226.5a, the card issuer shall mail or deliver the cardholder 
written notice of the change not less than 30 days before the change in 
providers occurs. The notice shall also include the following items, to 
the extent applicable:
    (i) Any increase in the rate that will result from the change;
    (ii) Any substantial decrease in coverage that will result from the 
change; and
    (iii) A statement that the cardholder may discontinue the insurance.
    (2) Notice when change in provider occurs. If a change described in 
paragraph (f)(1) of this section occurs, the card issuer shall provide 
the cardholder with a written notice no later than 30 days after the 
change, including the following items, to the extent applicable:
    (i) The name and address of the new insurance provider;
    (ii) A copy of the new policy or group certificate containing the 
basic terms of the insurance, including the rate to be charged; and
    (iii) A statement that the cardholder may discontinue the insurance.
    (3) Substantial decrease in coverage. For purposes of this 
paragraph, a substantial decrease in coverage is a decrease in a 
significant term of coverage that might reasonably be expected to affect 
the cardholder's decision to continue the insurance. Significant terms 
of coverage include, for example, the following:
    (i) Type of coverage provided;
    (ii) Age at which coverage terminates or becomes more restrictive;
    (iii) Maximum insurable loan balance, maximum periodic benefit 
payment, maximum number of payments, or other term affecting the dollar 
amount of coverage or benefits provided;
    (iv) Eligibility requirements and number and identity of persons 
covered;
    (v) Definition of a key term of coverage such as disability;
    (vi) Exclusions from or limitations on coverage; and
    (vii) Waiting periods and whether coverage is retroactive.
    (4) Combined notification. The notices required by paragraph (f) (1) 
and (2) of this section may be combined provided the timing requirement 
of paragraph (f)(1) of this section is met. The notices may be provided 
on or with a periodic statement.

[Reg. Z, 46 FR 20892, Apr. 7, 1981; 46 FR 29246, June 1, 1981, as 
amended at 54 FR 13867, Apr. 6, 1989; 54 FR 24688, June 9, 1989; 54 FR 
32954, Aug. 11, 1989; 55 FR 38312, Sept. 18, 1990; 55 FR 42148, Oct. 17, 
1990]



Sec. 226.10  Prompt crediting of payments.

    (a) General rule. A creditor shall credit a payment to the 
consumer's account as of the date of receipt, except when a delay in 
crediting does not result in a finance or other charge or except as 
provided in paragraph (b) of this section.
    (b) Specific requirements for payments. If a creditor specifies, on 
or with the periodic statement, requirements for the consumer to follow 
in making payments, but accepts a payment that does not conform to the 
requirements, the creditor shall credit the payment within 5 days of 
receipt.
    (c) Adjustment of account. If a creditor fails to credit a payment, 
as required by paragraphs (a) and (b) of this section, in time to avoid 
the imposition of finance or other charges, the creditor shall adjust 
the consumer's account so that the charges imposed are credited to the 
consumer's account during the next billing cycle.



Sec. 226.11  Treatment of credit balances.

    When a credit balance in excess of $1 is created on a credit account 
(through transmittal of funds to a creditor in excess of the total 
balance due on an account, through rebates of unearned finance charges 
or insurance premiums, or through amounts otherwise owed to or held for 
the benefit of a consumer), the creditor shall:
    (a) Credit the amount of the credit balance to the consumer's 
account;
    (b) Refund any part of the remaining credit balance within 7 
business days from receipt of a written request from the consumer; and
    (c) Make a good faith effort to refund to the consumer by cash, 
check, or money order, or credit to a deposit account of the consumer, 
any part of the

[[Page 205]]

credit balance remaining in the account for more than 6 months. No 
further action is required if the consumer's current location is not 
known to the creditor and cannot be traced through the consumer's last 
known address or telephone number.



Sec. 226.12  Special credit card provisions.

    (a) Issuance of credit cards. Regardless of the purpose for which a 
credit card is to be used, including business, commercial, or 
agricultural use, no credit card shall be issued to any person except:
    (1) In response to an oral or written request or application for the 
card; or
    (2) As a renewal of, or substitute for, an accepted credit 
card.21
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    21 For purposes of this section, accepted credit card means any 
credit card that a cardholder has requested or applied for and received, 
or has signed, used, or authorized another person to use to obtain 
credit. Any credit card issued as a renewal or substitute in accordance 
with this paragraph becomes an accepted credit card when received by the 
cardholder.
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    (b) Liability of cardholder for unauthorized use--(1) Limitation on 
amount. The liability of a cardholder for unauthorized use22 of a 
credit card shall not exceed the lesser of $50 or the amount of money, 
property, labor, or services obtained by the unauthorized use before 
notification to the card issuer under paragraph (b)(3) of this section.
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    22 Unauthorized use means the use of a credit card by a person, 
other than the cardholder, who does not have actual, implied, or 
apparent authority for such use, and from which the cardholder receives 
no benefit.
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    (2) Conditions of liability. A cardholder shall be liable for 
unauthorized use of a credit card only if:
    (i) The credit card is an accepted credit card;
    (ii) The card issuer has provided adequate notice23 of the 
cardholder's maximum potential liability and of means by which the card 
issuer may be notified of loss or theft of the card. The notice shall 
state that the cardholder's liability shall not exceed $50 (or any 
lesser amount) and that the cardholder may give oral or written 
notification, and shall describe a means of notification (for example, a 
telephone number, an address, or both); and
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    23 Adequate notice means a printed notice to a cardholder that sets 
forth clearly the pertinent facts so that the cardholder may reasonably 
be expected to have noticed it and understood its meaning. The notice 
may be given by any means reasonably assuring receipt by the cardholder.
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    (iii) The card issuer has provided a means to identify the 
cardholder on the account or the authorized user of the card.
    (3) Notification to card issuer. Notification to a card issuer is 
given when steps have been taken as may be reasonably required in the 
ordinary course of business to provide the card issuer with the 
pertinent information about the loss, theft, or possible unauthorized 
use of a credit card, regardless of whether any particular officer, 
employee, or agent of the card issuer does, in fact, receive the 
information. Notification may be given, at the option of the person 
giving it, in person, by telephone, or in writing. Notification in 
writing is considered given at the time of receipt or, whether or not 
received, at the expiration of the time ordinarily required for 
transmission, whichever is earlier.
    (4) Effect of other applicable law or agreement. If state law or an 
agreement between a cardholder and the card issuer imposes lesser 
liability than that provided in this paragraph, the lesser liability 
shall govern.
    (5) Business use of credit cards. If 10 or more credit cards are 
issued by one card issuer for use by the employees of an organization, 
this section does not prohibit the card issuer and the organization from 
agreeing to liability for unauthorized use without regard to this 
section. However, liability for unauthorized use may be imposed on an 
employee of the organization, by either the card issuer or the 
organization, only in accordance with this section.
    (c) Right of cardholder to assert claims or defenses against card 
issuer24--(1) General rule. When a person who honors a credit card 
fails to resolve satisfactorily a dispute as to property or services 
purchased with the credit card in a

[[Page 206]]

consumer credit transaction, the cardholder may assert against the card 
issuer all claims (other than tort claims) and defenses arising out of 
the transaction and relating to the failure to resolve the dispute. The 
cardholder may withhold payment up to the amount of credit outstanding 
for the property or services that gave rise to the dispute and any 
finance or other charges imposed on that amount.25
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    24 This paragraph does not apply to the use of a check guarantee 
card or a debit card in connection with an overdraft credit plan, or to 
a check guarantee card used in connection with cash advance checks.
    25 The amount of the claim or defense that the cardholder may assert 
shall not exceed the amount of credit outstanding for the disputed 
transaction at the time the cardholder first notifies the card issuer or 
the person honoring the credit card of the existence of the claim or 
defense. To determine the amount of credit outstanding for purposes of 
this section, payments and other credits shall be applied to: (1) Late 
charges in the order of entry to the account; then to (2) finance 
charges in the order of entry to the account; and then to (3) any other 
debits in the order of entry to the account. If more than one item is 
included in a single extension of credit, credits are to be distributed 
pro rata according to prices and applicable taxes.
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    (2) Adverse credit reports prohibited. If, in accordance with 
paragraph (c)(1) of this section, the cardholder withholds payment of 
the amount of credit outstanding for the disputed transaction, the card 
issuer shall not report that amount as delinquent until the dispute is 
settled or judgment is rendered.
    (3) Limitations. The rights stated in paragraphs (c)(1) and (2) of 
this section apply only if:
    (i) The cardholder has made a good faith attempt to resolve the 
dispute with the person honoring the credit card; and
    (ii) The amount of credit extended to obtain the property or 
services that result in the assertion of the claim or defense by the 
cardholder exceeds $50, and the disputed transaction occurred in the 
same state as the cardholder's current designated address or, if not 
within the same state, within 100 miles from that address.26
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    26 The limitations stated in paragraph (c)(3)(ii) of this section 
shall not apply when the person honoring the credit card: (1) Is the 
same person as the card issuer; (2) is controlled by the card issuer 
directly or indirectly; (3) is under the direct or indirect control of a 
third person that also directly or indirectly controls the card issuer; 
(4) controls the card issuer directly or indirectly; (5) is a franchised 
dealer in the card issuer's products or services; or (6) has obtained 
the order for the disputed transaction through a mail solicitation made 
or participated in by the card issuer.
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    (d) Offsets by card issuer prohibited. (1) A card issuer may not 
take any action, either before or after termination of credit card 
privileges, to offset a cardholder's indebtedness arising from a 
consumer credit transaction under the relevant credit card plan against 
funds of the cardholder held on deposit with the card issuer.
    (2) This paragraph does not alter or affect the right of a card 
issuer acting under state or Federal law to do any of the following with 
regard to funds of a cardholder held on deposit with the card issuer if 
the same procedure is constitutionally available to creditors generally: 
obtain or enforce a consensual security interest in the funds; attach or 
otherwise levy upon the funds; or obtain or enforce a court order 
relating to the funds.
    (3) This paragraph does not prohibit a plan, if authorized in 
writing by the cardholder, under which the card issuer may periodically 
deduct all or part of the cardholder's credit card debt from a deposit 
account held with the card issuer (subject to the limitations in 
Sec. 226.13(d)(1)).
    (e) Prompt notification of returns and crediting of refunds. (1) 
When a creditor other than the card issuer accepts the return of 
property or forgives a debt for services that is to be reflected as a 
credit to the consumer's credit card account, that creditor shall, 
within 7 business days from accepting the return or forgiving the debt, 
transmit a credit statement to the card issuer through the card issuer's 
normal channels for credit statements.
    (2) The card issuer shall, within 3 business days from receipt of a 
credit statement, credit the consumer's account with the amount of the 
refund.
    (3) If a creditor other than a card issuer routinely gives cash 
refunds to consumers paying in cash, the creditor shall also give credit 
or cash refunds to consumers using credit cards, unless it discloses at 
the time the transaction is consummated that credit or cash refunds for 
returns are not given. This

[[Page 207]]

section does not require refunds for returns nor does it prohibit 
refunds in kind.
    (f) Discounts; tie-in arrangements. No card issuer may, by contract 
or otherwise:
    (1) Prohibit any person who honors a credit card from offering a 
discount to a consumer to induce the consumer to pay by cash, check, or 
similar means rather than by use of a credit card or its underlying 
account for the purchase of property or services; or
    (2) Require any person who honors the card issuer's credit card to 
open or maintain any account or obtain any other service not essential 
to the operation of the credit card plan from the card issuer or any 
other person, as a condition of participation in a credit card plan. If 
maintenance of an account for clearing purposes is determined to be 
essential to the operation of the credit card plan, it may be required 
only if no service charges or minimum balance requirements are imposed.
    (g) Relation to Electronic Fund Transfer Act and Regulation E. For 
guidance on whether Regulation Z or Regulation E applies in instances 
involving both credit and electronic fund transfer aspects, refer to 
Regulation E, 12 CFR 205.5(c) regarding issuance and 205.6(d) regarding 
liability for unauthorized use. On matters other than issuance and 
liability, this section applies to the credit aspects of combined 
credit/electronic fund transfer transactions, as applicable.



Sec. 226.13  Billing error resolution.\27\
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    \27\ A creditor shall not accelerate any part of the consumer's 
indebtedness or restrict or close a consumer's account solely because 
the consumer has exercised in good faith rights provided by this 
section. A creditor may be subject to the forfeiture penalty under 
section 161(e) of the Act for failure to comply with any of the 
requirements of this section.
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    (a) Definition of billing error. For purposes of this section, the 
term billing error means:
    (1) A reflection on or with a periodic statement of an extension of 
credit that is not made to the consumer or to a person who has actual, 
implied, or apparent authority to use the consumer's credit card or 
open-end credit plan.
    (2) A reflection on or with a periodic statement of an extension of 
credit that is not identified in accordance with the requirements of 
Secs. 226.7(b) and 226.8.
    (3) A reflection on or with a periodic statement of an extension of 
credit for property or services not accepted by the consumer or the 
consumer's designee, or not delivered to the consumer or the consumer's 
designee as agreed.
    (4) A reflection on a periodic statement of the creditor's failure 
to credit properly a payment or other credit issued to the consumer's 
account.
    (5) A reflection on a periodic statement of a computational or 
similar error of an accounting nature that is made by the creditor.
    (6) A reflection on a periodic statement of an extension of credit 
for which the consumer requests additional clarification, including 
documentary evidence.
    (7) The creditor's failure to mail or deliver a periodic statement 
to the consumer's last known address if that address was received by the 
creditor, in writing, at least 20 days before the end of the billing 
cycle for which the statement was required.
    (b) Billing error notice.28 A billing error notice is a written 
notice 29 from a consumer that:
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    28 The creditor need not comply with the requirements of paragraphs 
(c) through (g) of this section if the consumer concludes that no 
billing error occurred and voluntarily withdraws the billing error 
notice.
    29 The creditor may require that the written notice not be made on 
the payment medium or other material accompanying the periodic statement 
if the creditor so stipulates in the billing rights statement required 
by Secs. 226.6(d) and 226.9(a).
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    (1) Is received by a creditor at the address disclosed under 
Sec. 226.7(k) no later than 60 days after the creditor transmitted the 
first periodic statement that reflects the alleged billing error;
    (2) Enables the creditor to identify the consumer's name and account 
number; and
    (3) To the extent possible, indicates the consumer's belief and the 
reasons for the belief that a billing error exists,

[[Page 208]]

and the type, date, and amount of the error.
    (c) Time for resolution; general procedures. (1) The creditor shall 
mail or deliver written acknowledgment to the consumer within 30 days of 
receiving a billing error notice, unless the creditor has complied with 
the appropriate resolution procedures of paragraphs (e) and (f) of this 
section, as applicable, within the 30-day period; and
    (2) The creditor shall comply with the appropriate resolution 
procedures of paragraphs (e) and (f) of this section, as applicable, 
within 2 complete billing cycles (but in no event later than 90 days) 
after receiving a billing error notice.
    (d) Rules pending resolution. Until a billing error is resolved 
under paragraph (e) or (f) of this section, the following rules apply:
    (1) Consumer's right to withhold disputed amount; collection action 
prohibited. The consumer need not pay (and the creditor may not try to 
collect) any portion of any required payment that the consumer believes 
is related to the disputed amount (including related finance or other 
charges).30 If the cardholder maintains a deposit account with the 
card issuer and has agreed to pay the credit card indebtedness by 
periodic deductions from the cardholder's deposit account, the card 
issuer shall not deduct any part of the disputed amount or related 
finance or other charges if a billing error notice is received any time 
up to 3 business days before the scheduled payment date.
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    30 A creditor is not prohibited from taking action to collect any 
undisputed portion of the item or bill; from deducting any disputed 
amount and related finance or other charges from the consumer's credit 
limit on the account; or from reflecting a disputed amount and related 
finance or other charges on a periodic statement, provided that the 
creditor indicates on or with the periodic statement that payment of any 
disputed amount and related finance or other charges is not required 
pending the creditor's compliance with this section.

    (2) Adverse credit reports prohibited. The creditor or its agent 
shall not (directly or indirectly) make or threaten to make an adverse 
report to any person about the consumer's credit standing, or report 
that an amount or account is delinquent, because the consumer failed to 
pay the disputed amount or related finance or other charges.
    (e) Procedures if billing error occurred as asserted. If a creditor 
determines that a billing error occurred as asserted, it shall within 
the time limits in paragraph (c)(2) of this section:
    (1) Correct the billing error and credit the consumer's account with 
any disputed amount and related finance or other charges, as applicable; 
and
    (2) Mail or deliver a correction notice to the consumer.
    (f) Procedures if different billing error or no billing error 
occurred. If, after conducting a reasonable investigation,31 a 
creditor determines that no billing error occurred or that a different 
billing error occurred from that asserted, the creditor shall within the 
time limits in paragraph (c)(2) of this section:
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    31 If a consumer submits a billing error notice alleging either the 
nondelivery of property or services under paragraph (a)(3) of this 
section or that information appearing on a periodic statement is 
incorrect because a person honoring the consumer's credit card has made 
an incorrect report to the card issuer, the creditor shall not deny the 
assertion unless it conducts a reasonable investigation and determines 
that the property or services were actually delivered, mailed, or sent 
as agreed or that the information was correct.

    (1) Mail or deliver to the consumer an explanation that sets forth 
the reasons for the creditor's belief that the billing error alleged by 
the consumer is incorrect in whole or in part;
    (2) Furnish copies of documentary evidence of the consumer's 
indebtedness, if the consumer so requests; and
    (3) If a different billing error occurred, correct the billing error 
and credit the consumer's account with any disputed amount and related 
finance or other charges, as applicable.
    (g) Creditor's rights and duties after resolution. If a creditor, 
after complying with all of the requirements of this section, determines 
that a consumer owes all or part of the disputed amount and related 
finance or other charges, the creditor:
    (1) Shall promptly notify the consumer in writing of the time when 
payment is due and the portion of the

[[Page 209]]

disputed amount and related finance or other charges that the consumer 
still owes;
    (2) Shall allow any time period disclosed under Secs. 226.6(a)(1) 
and 226.7(j), during which the consumer can pay the amount due under 
paragraph (g)(1) of this section without incurring additional finance or 
other charges;
    (3) May report an account or amount as delinquent because the amount 
due under paragraph (g)(1) of this section remains unpaid after the 
creditor has allowed any time period disclosed under Secs. 226.6(a)(1) 
and 266.7(j) or 10 days (whichever is longer) during which the consumer 
can pay the amount; but
    (4) May not report that an amount or account is delinquent because 
the amount due under paragraph (g)(1) of the section remains unpaid, if 
the creditor receives (within the time allowed for payment in paragraph 
(g)(3) of this section) further written notice from the consumer that 
any portion of the billing error is still in dispute, unless the 
creditor also:
    (i) Promptly reports that the amount or account is in dispute;
    (ii) Mails or delivers to the consumer (at the same time the report 
is made) a written notice of the name and address of each person to whom 
the creditor makes a report; and
    (iii) Promptly reports any subsequent resolution of the reported 
delinquency to all persons to whom the creditor has made a report.
    (h) Reassertion of billing error. A creditor that has fully complied 
with the requirements of this section has no further responsibilities 
under this section (other than as provided in paragraph (g)(4) of this 
section) if a consumer reasserts substantially the same billing error.
    (i) Relation to Electronic Fund Transfer Act and Regulation E. If an 
extension of credit is incident to an electronic fund transfer, under an 
agreement between a consumer and a financial institution to extend 
credit when the consumer's account is overdrawn or to maintain a 
specified minimum balance in the consumer's account, the creditor shall 
comply with the requirements of Regulation E, 12 CFR 205.11 governing 
error resolution rather than those of paragraphs (a), (b), (c), (e), 
(f), and (h) of this section.



Sec. 226.14  Determination of annual percentage rate.

    (a) General rule. The annual percentage rate is a measure of the 
cost of credit, expressed as a yearly rate. An annual percentage rate 
shall be considered accurate if it is not more than \1/8\ of 1 
percentage point above or below the annual percentage rate determined in 
accordance with this section.31\a
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    31a An error in disclosure of the annual percentage rate or finance 
charge shall not, in itself, be considered a violation of this 
regulation if: (1) The error resulted from a corresponding error in a 
calculation tool used in good faith by the creditor; and (2) upon 
discovery of the error, the creditor promptly discontinues use of that 
calculation tool for disclosure purposes, and notifies the Board in 
writing of the error in the calculation tool.
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    (b) Annual percentage rate for Secs. 226.5a and 226.5b disclosures, 
for initial disclosures and for advertising purposes. Where one or more 
periodic rates may be used to compute the finance charge, the annual 
percentage rate(s) to be disclosed for purposes of Secs. 226.5a, 226.5b, 
226.6, and 226.16 shall be computed by multiplying each periodic rate by 
the number of periods in a year.
    (c) Annual percentage rate for periodic statements. The annual 
percentage rate(s) to be disclosed for purposes of Sec. 226.7(d) shall 
be computed by multiplying each periodic rate by the number of periods 
in a year and, for purposes of Sec. 226.7(g), shall be determined as 
follows:
    (1) If the finance charge is determined solely by applying one or 
more periodic rates, at the creditor's option, either:
    (i) By multiplying each periodic rate by the number of periods in a 
year; or
    (ii) By dividing the total finance charge for the billing cycle by 
the sum of the balances to which the periodic rates were applied and 
multiplying the quotient (expressed as a percentage) by the number of 
billing cycles in a year.
    (2) If the finance charge imposed during the billing cycle is or 
includes a minimum, fixed, or other charge not due to the application of 
a periodic rate, other than a charge with respect

[[Page 210]]

to any specific transaction during the billing cycle, by dividing the 
total finance charge for the billing cycle by the amount of the 
balance(s) to which it is applicable32 and multiplying the quotient 
(expressed as a percentage) by the number of billing cycles in a 
year.33
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    32 If there is no balance to which the finance charge is applicable, 
an annual percentage rate cannot be determined under this section.
    33 Where the finance charge imposed during the billing cycle is or 
includes a loan fee, points, or similar charge that relates to the 
opening of the account, the amount of such charge shall not be included 
in the calculation of the annual percentage rate.
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    (3) If the finance charge imposed during the billing cycle is or 
includes a charge relating to a specific transaction during the billing 
cycle (even if the total finance charge also includes any other minimum, 
fixed, or other charge not due to the application of a periodic rate), 
by dividing the total finance charge imposed during the billing cycle by 
the total of all balances and other amounts on which a finance charge 
was imposed during the billing cycle without duplication, and 
multiplying the quotient (expressed as a percentage) by the number of 
billing cycles in a year,34 except that the annual percentage rate 
shall not be less than the largest rate determined by multiplying each 
periodic rate imposed during the billing cycle by the number of periods 
in a year.35
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    34 See appendix F regarding determination of the denominator of the 
fraction under this paragraph.
    35 See footnote 33.
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    (4) If the finance charge imposed during the billing cycle is or 
includes a minimum, fixed, or other charge not due to the application of 
a periodic rate and the total finance charge imposed during the billing 
cycle does not exceed 50 cents for a monthly or longer billing cycle, or 
the pro rata part of 50 cents for a billing cycle shorter than monthly, 
at the creditor's option, by multiplying each applicable periodic rate 
by the number of periods in a year, notwithstanding the provisions of 
paragraphs (c)(2) and (3) of this section.
    (d) Calculations where daily periodic rate applied. If the 
provisions of paragraph (c)(1)(ii) or (2) of this section apply and all 
or a portion of the finance charge is determined by the application of 
one or more daily periodic rates, the annual percentage rate may be 
determined either:
    (1) By dividing the total finance charge by the average of the daily 
balances and multiplying the quotient by the number of billing cycles in 
a year; or
    (2) By dividing the total finance charge by the sum of the daily 
balances and multiplying the quotient by 365.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 47 FR 756, Jan. 7, 
1982; 48 FR 14886, Apr. 6, 1983; 54 FR 24688, June 9, 1989]



Sec. 226.15  Right of rescission.

    (a) Consumer's right to rescind. (1)(i) Except as provided in 
paragraph (a)(1)(ii) of this section, in a credit plan in which a 
security interest is or will be retained or acquired in a consumer's 
principal dwelling, each consumer whose ownership interest is or will be 
subject to the security interest shall have the right to rescind: each 
credit extension made under the plan; the plan when the plan is opened; 
a security interest when added or increased to secure an existing plan; 
and the increase when a credit limit on the plan is increased.
    (ii) As provided in section 125(e) of the Act, the consumer does not 
have the right to rescind each credit extension made under the plan if 
such extension is made in accordance with a previously established 
credit limit for the plan.
    (2) To exercise the right to rescind, the consumer shall notify the 
creditor of the rescission by mail, telegram, or other means of written 
communication. Notice is considered given when mailed, or when filed for 
telegraphic transmission, or, if sent by other means, when delivered to 
the creditor's designated place of business.
    (3) The consumer may exercise the right to rescind until midnight of 
the third business day following the occurrence described in paragraph 
(a)(1) of this section that gave rise to the right of rescission, 
delivery of the notice required by paragraph (b) of this section,

[[Page 211]]

or delivery of all material disclosures,36 whichever occurs last. 
If the required notice and material disclosures are not delivered, the 
right to rescind shall expire 3 years after the occurrence giving rise 
to the right of rescission, or upon transfer of all of the consumer's 
interest in the property, or upon sale of the property, whichever occurs 
first. In the case of certain administrative proceedings, the rescission 
period shall be extended in accordance with section 125(f) of the Act.
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    36 The term material disclosures means the information that must be 
provided to satisfy the requirements in Sec. 226.6 with regard to the 
method of determining the finance charge and the balance upon which a 
finance charge will be imposed, the annual percentage rate, the amount 
or method of determining the amount of any membership or participation 
fee that may be imposed as part of the plan, and the payment information 
described in Sec. 226.5b(d)(5)(i) and (ii) that is required under 
Sec. 226.6(e)(2).
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    (4) When more than one consumer has the right to rescind, the 
exercise of the right by one consumer shall be effective as to all 
consumers.
    (b) Notice of right to rescind. In any transaction or occurrence 
subject to rescission, a creditor shall deliver 2 copies of the notice 
of the right to rescind to each consumer entitled to rescind. The notice 
shall identify the transaction or occurrence and clearly and 
conspicuously disclose the following:
    (1) The retention or acquisition of a security interest in the 
consumer's principal dwelling.
    (2) The consumer's right to rescind, as described in paragraph 
(a)(1) of this section.
    (3) How to exercise the right to rescind, with a form for that 
purpose, designating the address of the creditor's place of business.
    (4) The effects of rescission, as described in paragraph (d) of this 
section.
    (5) The date the rescission period expires.
    (c) Delay of creditor's performance. Unless a consumer waives the 
right to rescind under paragraph (e) of this section, no money shall be 
disbursed other than in escrow, no services shall be performed, and no 
materials delivered until after the rescission period has expired and 
the creditor is reasonably satisfied that the consumer has not 
rescinded. A creditor does not violate this section if a third party 
with no knowledge of the event activating the rescission right does not 
delay in providing materials or services, as long as the debt incurred 
for those materials or services is not secured by the property subject 
to rescission.
    (d) Effects of rescission. (1) When a consumer rescinds a 
transaction, the security interest giving rise to the right of 
rescission becomes void, and the consumer shall not be liable for any 
amount, including any finance charge.
    (2) Within 20 calendar days after receipt of a notice of rescission, 
the creditor shall return any money or property that has been given to 
anyone in connection with the transaction and shall take any action 
necessary to reflect the termination of the security interest.
    (3) If the creditor has delivered any money or property, the 
consumer may retain possession until the creditor has met its obligation 
under paragraph (d)(2) of this section. When the creditor has complied 
with that paragraph, the consumer shall tender the money or property to 
the creditor or, where the latter would be impracticable or inequitable, 
tender its reasonable value. At the consumer's option, tender of 
property may be made at the location of the property or at the 
consumer's residence. Tender of money must be made at the creditor's 
designated place of business. If the creditor does not take possession 
of the money or property within 20 calendar days after the consumer's 
tender, the consumer may keep it without further obligation.
    (4) The procedures outlined in paragraphs (d)(2) and (3) of this 
section may be modified by court order.
    (e) Consumer's waiver of right to rescind. (1) The consumer may 
modify or waive the right to rescind if the consumer determines that the 
extension of credit is needed to meet a bona fide personal financial 
emergency. To modify or waive the right, the consumer shall give the 
creditor a dated written statement that describes the emergency, 
specifically modifies or waives the right to rescind, and bears

[[Page 212]]

the signature of all the consumers entitled to rescind. Printed forms 
for this purpose are prohibited, except as provided in paragraph (e)(2) 
of this section.
    (2) The need of the consumer to obtain funds immediately shall be 
regarded as a bona fide personal financial emergency provided that the 
dwelling securing the extension of credit is located in an area declared 
during June through September 1993, pursuant to 42 U.S.C. 5170, to be a 
major disaster area because of severe storms and flooding in the 
Midwest.36a In this instance, creditors may use printed forms for 
the consumer to waive the right to rescind. This exemption to paragraph 
(e)(1) of this section shall expire one year from the date an area was 
declared a major disaster.
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    \36a\ A list of the affected areas will be maintained by the Board.
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    (3) The consumer's need to obtain funds immediately shall be 
regarded as a bona fide personal financial emergency provided that the 
dwelling securing the extension of credit is located in an area declared 
during June through September 1994 to be a major disaster area, pursuant 
to 42 U.S.C. 5170, because of severe storms and flooding in the 
South.36b In this instance, creditors may use printed forms for the 
consumer to waive the right to rescind. This exemption to paragraph 
(e)(1) of this section shall expire one year from the date an area was 
declared a major disaster.
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    \36b\ A list of the affected areas will be maintained and published 
by the Board. Such areas now include parts of Alabama, Florida, and 
Georgia.
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    (4) The consumer's need to obtain funds immediately shall be 
regarded as a bona fide personal financial emergency provided that the 
dwelling securing the extension of credit is located in an area declared 
during October 1994 to be a major disaster area, pursuant to 42 U.S.C. 
5170, because of severe storms and flooding in Texas.36c In this 
instance, creditors may use printed forms for the consumer to waive the 
right to rescind. This exemption to paragraph (e)(1) of this section 
shall expire one year from the date an area was declared a major 
disaster.
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    \36c\ A list of the affected areas will be maintained and published 
by the Board. Such areas now include the following counties in Texas: 
Angelina, Austin, Bastrop, Brazos, Brazoria, Burleson, Chambers, 
Fayette, Fort Bend, Galveston, Grimes, Hardin, Harris, Houston, Jackson, 
Jasper, Jefferson, Lee, Liberty, Madison, Matagorda, Montgomery, 
Nacagdoches, Orange, Polk, San Augustine, San Jacinto, Shelby, Trinity, 
Victoria, Washington, Waller, Walker, and Wharton.
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    (f) Exempt transactions. The right to rescind does not apply to the 
following:
    (1) A residential mortgage transaction.
    (2) A credit plan in which a state agency is a creditor.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 54 FR 24688, June 9, 
1989; 58 FR 40583, July 29, 1993; 59 FR 40204, Aug. 5, 1994; 59 FR 
63715, Dec. 9, 1994]



Sec. 226.16  Advertising.

    (a) Actually available terms. If an advertisement for credit states 
specific credit terms, it shall state only those terms that actually are 
or will be arranged or offered by the creditor.
    (b) Advertisement of terms that require additional disclosures. If 
any of the terms required to be disclosed under Sec. 226.6 is set forth 
in an advertisement, the advertisement shall also clearly and 
conspicuously set forth the following:36 d
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    36 d The disclosures given in accordance with Sec. 226.5a do not 
constitute advertising terms for purposes of the requirements of this 
section.
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    (1) Any minimum, fixed, transaction, activity or similar charge that 
could be imposed.
    (2) Any periodic rate that may be applied expressed as an annual 
percentage rate as determined under Sec. 226.14(b). If the plan provides 
for a variable periodic rate, that fact shall be disclosed.
    (3) Any membership or participation fee that could be imposed.
    (c) Catalogs and multiple-page advertisements. (1) If a catalog or 
other multiple-page advertisement gives information in a table or 
schedule in sufficient detail to permit determination of the disclosures 
required by paragraph (b) of this section, it shall be considered a 
single advertisement if:
    (i) The table or schedule is clearly and conspicuously set forth; 
and
    (ii) Any statement of terms set forth in Sec. 226.6 appearing 
anywhere else in

[[Page 213]]

the catalog or advertisement clearly refers to that page on which the 
table or schedule begins.
    (2) A catalog or multiple-page advertisement complies with this 
paragraph if the table or schedule of terms includes all appropriate 
disclosures for a representative scale of amounts up to the level of the 
more commonly sold higher-priced property or services offered.
    (d) Additional requirements for home equity plans--(1) Advertisement 
of terms that require additional disclosures. If any of the terms 
required to be disclosed under Sec. 226.6(a) or (b) or the payment terms 
of the plan are set forth, affirmatively or negatively, in an 
advertisement for a home equity plan subject to the requirements of 
Sec. 226.5b, the advertisement also shall clearly and conspicuously set 
forth the following:
    (i) Any loan fee that is a percentage of the credit limit under the 
plan and an estimate of any other fees imposed for opening the plan, 
stated as a single dollar amount or a reasonable range.
    (ii) Any periodic rate used to compute the finance charge, expressed 
as an annual percentage rate as determined under section Sec. 226.14(b).
    (iii) The maximum annual percentage rate that may be imposed in a 
variable-rate plan.
    (2) Discounted and premium rates. If an advertisement states an 
initial annual percentage rate that is not based on the index and margin 
used to make later rate adjustments in a variable-rate plan, the 
advertisement also shall state the period of time such rate will be in 
effect, and, with equal prominence to the initial rate, a reasonably 
current annual percentage rate that would have been in effect using the 
index and margin.
    (3) Balloon payment. If an advertisement contains a statement about 
any minimum periodic payment, the advertisement also shall state, if 
applicable, that a balloon payment may result.36 e
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    36 e See footnote 10b.
---------------------------------------------------------------------------

    (4) Tax implications. An advertisement that states that any interest 
expense incurred under the home equity plan is or may be tax deductible 
may not be misleading in this regard.
    (5) Misleading terms. An advertisement may not refer to a home 
equity plan as ``free money'' or contain a similarly misleading term.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 54 FR 13867, Apr. 6, 
1989; 54 FR 24688, June 9, 1989; 54 FR 28665, July 7, 1989; 58 FR 40583, 
July 29, 1993; 59 FR 40204, Aug. 5, 1994; 59 FR 63715, Dec. 9, 1994]



                      Subpart C--Closed-End Credit



Sec. 226.17  General disclosure requirements.

    (a) Form of disclosures. (1) The creditor shall make the disclosures 
required by this subpart clearly and conspicuously in writing, in a form 
that the consumer may keep. The disclosures shall be grouped together, 
shall be segregated from everything else, and shall not contain any 
information not directly related 37 to the disclosures required 
under Sec. 226.18.38 The itemization of the amount financed under 
Sec. 226.18(c)(1) must be separate from the other disclosures under that 
section.
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    37 The disclosures may include an acknowledgment of receipt, 
the date of the transaction, and the consumer's name, address, and 
account number.
    \38\ The following disclosures may be made together with or 
separately from other required disclosures: the creditor's identity 
under Sec. 226.18(a), the variable rate example under Sec. 226.18(f)(4), 
insurance or debt cancellation under Sec. 226.18(n), and certain 
security interest charges under Sec. 226.18(o).
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    (2) The terms finance charge and annual percentage rate, when 
required to be disclosed under Sec. 226.18 (d) and (e) together with a 
corresponding amount or percentage rate, shall be more conspicuous than 
any other disclosure, except the creditor's identity under 
Sec. 226.18(a).
    (b) Time of disclosures. The creditor shall make disclosures before 
consummation of the transaction. In certain residential mortgage 
transactions, special timing requirements are set forth in 
Sec. 226.19(a). In certain variable-rate transactions, special timing 
requirements for variable-rate disclosures are set forth in 
Sec. 226.19(b) and Sec. 226.20(c). In certain transactions involving 
mail or telephone orders or a series of sales, the timing of disclosures 
may be delayed in accordance

[[Page 214]]

with paragraphs (g) and (h) of this section.
    (c) Basis of disclosures and use of estimates. (1) The disclosures 
shall reflect the terms of the legal obligation between the parties.
    (2)(i) If any information necessary for an accurate disclosure is 
unknown to the creditor, the creditor shall make the disclosure based on 
the best information reasonably available at the time the disclosure is 
provided to the consumer, and shall state clearly that the disclosure is 
an estimate.
    (ii) For a transaction in which a portion of the interest is 
determined on a per-diem basis and collected at consummation, any 
disclosure affected by the per-diem interest shall be considered 
accurate if the disclosure is based on the information known to the 
creditor at the time that the disclosure documents are prepared for 
consummation of the transaction.
    (3) The creditor may disregard the effects of the following in 
making calculations and disclosures.
    (i) That payments must be collected in whole cents.
    (ii) That dates of scheduled payments and advances may be changed 
because the scheduled date is not a business day.
    (iii) That months have different numbers of days.
    (iv) The occurrence of leap year.
    (4) In making calculations and disclosures, the creditor may 
disregard any irregularity in the first period that falls within the 
limits described below and any payment schedule irregularity that 
results from the irregular first period:
    (i) For transactions in which the term is less than 1 year, a first 
period not more than 6 days shorter or 13 days longer than a regular 
period;
    (ii) For transactions in which the term is at least 1 year and less 
than 10 years, a first period not more than 11 days shorter or 21 days 
longer than a regular period; and
    (iii) For transactions in which the term is at least 10 years, a 
first period shorter than or not more than 32 days longer than a regular 
period.
    (5) If an obligation is payable on demand, the creditor shall make 
the disclosures based on an assumed maturity of 1 year. If an alternate 
maturity date is stated in the legal obligation between the parties, the 
disclosures shall be based on that date.
    (6)(i) A series of advances under an agreement to extend credit up 
to a certain amount may be considered as one transaction.
    (ii) When a multiple-advance loan to finance the construction of a 
dwelling may be permanently financed by the same creditor, the 
construction phase and the permanent phase may be treated as either one 
transaction or more than one transaction.
    (d) Multiple creditors; multiple consumers. If a transaction 
involves more than one creditor, only one set of disclosures shall be 
given and the creditors shall agree among themselves which creditor must 
comply with the requirements that this regulation imposes on any or all 
of them. If there is more than one consumer, the disclosures may be made 
to any consumer who is primarily liable on the obligation. If the 
transaction is rescindable under Sec. 226.23, however, the disclosures 
shall be made to each consumer who has the right to rescind.
    (e) Effect of subsequent events. If a disclosure becomes inaccurate 
because of an event that occurs after the creditor delivers the required 
disclosures, the inaccuracy is not a violation of this regulation, 
although new disclosures may be required under paragraph (f) of this 
section, Sec. 226.19, or Sec. 226.20.
    (f) Early disclosures. If disclosures required by this subpart are 
given before the date of consummation of a transaction and a subsequent 
event makes them inaccurate, the creditor shall disclose before 
consummation: 39
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    \39\ For certain residential mortgage transactions, 
Sec. 226.19(a)(2) permits redisclosure no later than consummation or 
settlement, whichever is later.
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    (1) any changed term unless the term was based on an estimate in 
accordance with Sec. 226.17(c)(2) and was labelled an estimate;
    (2) all changed terms, if the annual percentage rate at the time of 
consummation varies from the annual percentage rate disclosed earlier by 
more than \1/8\ of 1 percentage point in a regular transaction, or more 
than \1/4\ of 1

[[Page 215]]

percentage point in an irregular transaction, as defined in 
Sec. 226.22(a).
    (g) Mail or telephone orders--delay in disclosures. If a creditor 
receives a purchase order or a request for an extension of credit by 
mail, telephone, or any other written or electronic communication 
without face-to-face or direct telephone solicitation, the creditor may 
delay the disclosures until the due date of the first payment, if the 
following information for representative amounts or ranges of credit is 
made available in written form to the consumer or to the public before 
the actual purchase order or request:
    (1) The cash price or the principal loan amount.
    (2) The total sale price.
    (3) The finance charge.
    (4) The annual percentage rate, and if the rate may increase after 
consummation, the following disclosures:
    (i) The circumstances under which the rate may increase.
    (ii) Any limitations on the increase.
    (iii) The effect of an increase.
    (5) The terms of repayment.
    (h) Series of sales--delay in disclosures. If a credit sale is one 
of a series made under an agreement providing that subsequent sales may 
be added to an outstanding balance, the creditor may delay the required 
disclosures until the due date of the first payment for the current 
sale, if the following two conditions are met:
    (1) The consumer has approved in writing the annual percentage rate 
or rates, the range of balances to which they apply, and the method of 
treating any unearned finance charge on an existing balance.
    (2) The creditor retains no security interest in any property after 
the creditor has received payments equal to the cash price and any 
finance charge attributable to the sale of that property. For purposes 
of this provision, in the case of items purchased on different dates, 
the first purchased is deemed the first item paid for; in the case of 
items purchased on the same date, the lowest priced is deemed the first 
item paid for.
    (i) Interim student credit extensions. For each transaction 
involving an interim credit extension under a student credit program, 
the creditor need not make the following disclosures: the finance charge 
under Sec. 226.18(d), the payment schedule under Sec. 226.18(g), the 
total of payments under Sec. 226.18(h), or the total sale price under 
Sec. 226.18(j).

[46 FR 20892, Apr. 7, 1981, as amended at 52 FR 48670, Dec. 24, 1987; 61 
FR 49246, Sept. 19, 1996]



Sec. 226.18  Content of disclosures.

    For each transaction, the creditor shall disclose the following 
information as applicable:
    (a) Creditor. The identity of the creditor making the disclosures.
    (b) Amount financed. The amount financed, using that term, and a 
brief description such as the amount of credit provided to you or on 
your behalf. The amount financed is calculated by:
    (1) Determining the principal loan amount or the cash price 
(subtracting any downpayment);
    (2) Adding any other amounts that are financed by the creditor and 
are not part of the finance charge; and
    (3) Subtracting any prepaid finance charge.
    (c) Itemization of amount financed. (1) A separate written 
itemization of the amount financed, including: 40
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    40 Good faith estimates of settlement costs provided for 
transactions subject to the Real Estate Settlement Procedures Act (12 
U.S.C. 2601 et seq.) may be substituted for the disclosures required by 
paragraph (c) of this section.
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    (i) The amount of any proceeds distributed directly to the consumer.
    (ii) The amount credited to the consumer's account with the 
creditor.
    (iii) Any amounts paid to other persons by the creditor on the 
consumer's behalf. The creditor shall identify those persons.41
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    41 The following payees may be described using generic or other 
general terms and need not be further identified: public officials or 
government agencies, credit reporting agencies, appraisers, and 
insurance companies.
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    (iv) The prepaid finance charge.
    (2) The creditor need not comply with paragraph (c)(1) of this 
section if the creditor provides a statement that the consumer has the 
right to receive a written itemization of the amount financed, together 
with a space for the

[[Page 216]]

consumer to indicate whether it is desired, and the consumer does not 
request it.
    (d) Finance charge. The finance charge, using that term, and a brief 
description such as ``the dollar amount the credit will cost you.''
    (1) Mortgage loans. In a transaction secured by real property or a 
dwelling, the disclosed finance charge and other disclosures affected by 
the disclosed finance charge (including the amount financed and the 
annual percentage rate) shall be treated as accurate if the amount 
disclosed as the finance charge:
    (i) is understated by no more than $100; or
    (ii) is greater than the amount required to be disclosed.
    (2) Other credit. In any other transaction, the amount disclosed as 
the finance charge shall be treated as accurate if, in a transaction 
involving an amount financed of $1,000 or less, it is not more than $5 
above or below the amount required to be disclosed; or, in a transaction 
involving an amount financed of more than $1,000, it is not more than 
$10 above or below the amount required to be disclosed.
    (e) Annual percentage rate. The annual percentage rate, using that 
term, and a brief description such as ``the cost of your credit as a 
yearly rate.''42
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    42 For any transaction involving a finance charge of $5 or less on 
an amount financed of $75 or less, or a finance charge of $7.50 or less 
on an amount financed of more than $75, the creditor need not disclose 
the annual percentage rate.
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    (f) Variable rate. (1) If the annual percentage rate may increase 
after consummation in a transaction not secured by the consumer's 
principal dwelling or in a transaction secured by the consumer's 
principal dwelling with a term of one year or less, the following 
disclosures: \43\
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    \43\ Information provided in accordance with Secs. 226.18(f)(2) and 
226.19(b) may be substituted for the disclosures required by paragraph 
(f)(1) of this section.
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    (i) The circumstances under which the rate may increase.
    (ii) Any limitations on the increase.
    (iii) The effect of an increase.
    (iv) An example of the payment terms that would result from an 
increase.
    (2) If the annual percentage rate may increase after consummation in 
a transaction secured by the consumer's principal dwelling with a term 
greater than one year, the following disclosures:
    (i) The fact that the transaction contains a variable-rate feature.
    (ii) A statement that variable-rate disclosures have been provided 
earlier.
    (g) Payment schedule. The number, amounts, and timing of payments 
scheduled to repay the obligation.
    (1) In a demand obligation with no alternate maturity date, the 
creditor may comply with this paragraph by disclosing the due dates or 
payment periods of any scheduled interest payments for the first year.
    (2) In a transaction in which a series of payments varies because a 
finance charge is applied to the unpaid principal balance, the creditor 
may comply with this paragraph by disclosing the following information:
    (i) The dollar amounts of the largest and smallest payments in the 
series.
    (ii) A reference to the variations in the other payments in the 
series.
    (h) Total of payments. The total of payments, using that term, and a 
descriptive explanation such as ``the amount you will have paid when you 
have made all scheduled payments.''44
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    44 In any transaction involving a single payment, the creditor need 
not disclose the total of payments.
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    (i) Demand feature. If the obligation has a demand feature, that 
fact shall be disclosed. When the disclosures are based on an assumed 
maturity of 1 year as provided in Sec. 226.17(c)(5), that fact shall 
also be disclosed.
    (j) Total sale price. In a credit sale, the total sale price, using 
that term, and a descriptive explanation (including the amount of any 
downpayment) such as ``the total price of your purchase on credit, 
including your downpayment of  $----.'' The total sale price is the sum 
of the cash price, the items described in paragraph (b)(2), and the 
finance charge disclosed under paragraph (d) of this section.

[[Page 217]]

    (k) Prepayment. (1) When an obligation includes a finance charge 
computed from time to time by application of a rate to the unpaid 
principal balance, a statement indicating whether or not a penalty may 
be imposed if the obligation is prepaid in full.
    (2) When an obligation includes a finance charge other than the 
finance charge described in paragraph (k)(1) of this section, a 
statement indicating whether or not the consumer is entitled to a rebate 
of any finance charge if the obligation is prepaid in full.
    (l) Late payment. Any dollar or percentage charge that may be 
imposed before maturity due to a late payment, other than a deferral or 
extension charge.
    (m) Security interest. The fact that the creditor has or will 
acquire a security interest in the property purchased as part of the 
transaction, or in other property identified by item or type.
    (n) Insurance and debt cancellation. The items required by 
Sec. 226.4(d) in order to exclude certain insurance premiums and debt 
cancellation fees from the finance charge.
    (o) Certain security interest charges. The disclosures required by 
Sec. 226.4(e) in order to exclude from the finance charge certain fees 
prescribed by law or certain premiums for insurance in lieu of 
perfecting a security interest.
    (p) Contract reference. A statement that the consumer should refer 
to the appropriate contract document for information about nonpayment, 
default, the right to accelerate the maturity of the obligation, and 
prepayment rebates and penalties. At the creditor's option, the 
statement may also include a reference to the contract for further 
information about security interests and, in a residential mortgage 
transaction, about the creditor's policy regarding assumption of the 
obligation.
    (q) Assumption policy. In a residential mortgage transaction, a 
statement whether or not a subsequent purchaser of the dwelling from the 
consumer may be permitted to assume the remaining obligation on its 
original terms.
    (r) Required deposit. If the creditor requires the consumer to 
maintain a deposit as a condition of the specific transaction, a 
statement that the annual percentage rate does not reflect the effect of 
the required deposit.45
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    45A required deposit need not include, for example: (1) An escrow 
account for items such as taxes, insurance or repairs; (2) a deposit 
that earns not less than 5 percent per year; or (3) payments under a 
Morris Plan.

[46 FR 20892, Apr. 7, 1981; 46 FR 29246, June 1, 1981, as amended at 52 
FR 48670, Dec. 24, 1987; 61 FR 49246, Sept. 19, 1996]



Sec. 226.19  Certain residential mortgage and variable-rate transactions.

    (a) Residential mortgage transactions subject to RESPA--(1) Time of 
disclosures. In a residential mortgage transaction subject to the Real 
Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.) the creditor 
shall make good faith estimates of the disclosures required by 
Sec. 226.18 before consummation, or shall deliver or place them in the 
mail not later than three business days after the creditor receives the 
consumer's written application, whichever is earlier.
    (2) Redisclosure required. If the annual percentage rate at the time 
of consummation varies from the annual percentage rate disclosed earlier 
by more than \1/8\ of 1 percentage point in a regular transaction or 
more than \1/4\ of 1 percentage point in an irregular transaction, as 
defined in Sec. 226.22, the creditor shall disclose all the changed 
terms no later than consummation or settlement.
    (b) Certain variable-rate transactions.\45\a If the annual 
percentage rate may increase after consummation in a transaction secured 
by the consumer's principal dwelling with a term greater than one year, 
the following disclosures must be provided at the time an application 
form is provided or before the consumer pays a non-refundable fee, 
whichever is earlier:\45\b
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    \45\a Information provided in accordance with variable-rate 
regulations of other federal agencies may be substituted for the 
disclosures required by paragraph (b) of this section.
    \45\b Disclosures may be delivered or placed in the mail not 
later than three business days following receipt of a consumer's 
application when the application reaches the creditor by telephone, or 
through an intermediary agent or broker.
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    (1) The booklet titled Consumer Handbook on Adjustable Rate 
Mortgages published by the Board and the Federal

[[Page 218]]

Home Loan Bank Board, or a suitable substitute.
    (2) A loan program disclosure for each variable-rate program in 
which the consumer expresses an interest. The following disclosures, as 
applicable, shall be provided:
    (i) The fact that the interest rate, payment, or term of the loan 
can change.
    (ii) The index or formula used in making adjustments, and a source 
of information about the index or formula.
    (iii) An explanation of how the interest rate and payment will be 
determined, including an explanation of how the index is adjusted, such 
as by the addition of a margin.
    (iv) A statement that the consumer should ask about the current 
margin value and current interest rate.
    (v) The fact that the interest rate will be discounted, and a 
statement that the consumer should ask about the amount of the interest 
rate discount.
    (vi) The frequency of interest rate and payment changes.
    (vii) Any rules relating to changes in the index, interest rate, 
payment amount, and outstanding loan balance including, for example, an 
explanation of interest rate or payment limitations, negative 
amortization, and interest rate carryover.
    (viii) An historical example, based on a $10,000 loan amount, 
illustrating how payments and the loan balance would have been affected 
by interest rate changes implemented according to the terms of the loan 
program. The example shall be based upon index values beginning in 1977 
and be updated annually until a 15-year history is shown. Thereafter, 
the example shall reflect the most recent 15 years of index values. The 
example shall reflect all significant loan program terms, such as 
negative amortization, interest rate carryover, interest rate discounts, 
and interest rate and payment limitations, that would have been affected 
by the index movement during the period.
    (ix) An explanation of how the consumer may calculate the payments 
for the loan amount to be borrowed based on the most recent payment 
shown in the historical example.
    (x) The maximum interest rate and payment for a $10,000 loan 
originated at the most recent interest rate shown in the historical 
example assuming the maximum periodic increases in rates and payments 
under the program; and the initial interest rate and payment for that 
loan.
    (xi) The fact that the loan program contains a demand feature.
    (xii) The type of information that will be provided in notices of 
adjustments and the timing of such notices.
    (xiii) A statement that disclosure forms are available for the 
creditor's other variable-rate loan programs.

[52 FR 48670, Dec. 24, 1987; 53 FR 467, Jan. 7, 1988, as amended at 61 
FR 49246, Sept. 19, 1996]



Sec. 226.20  Subsequent disclosure requirements.

    (a) Refinancings. A refinancing occurs when an existing obligation 
that was subject to this subpart is satisfied and replaced by a new 
obligation undertaken by the same consumer. A refinancing is a new 
transaction requiring new disclosures to the consumer. The new finance 
charge shall include any unearned portion of the old finance charge that 
is not credited to the existing obligation. The following shall not be 
treated as a refinancing:
    (1) A renewal of a single payment obligation with no change in the 
original terms.
    (2) A reduction in the annual percentage rate with a corresponding 
change in the payment schedule.
    (3) An agreement involving a court proceeding.
    (4) A change in the payment schedule or a change in collateral 
requirements as a result of the consumer's default or delinquency, 
unless the rate is increased, or the new amount financed exceeds the 
unpaid balance plus earned finance charge and premiums for continuation 
of insurance of the types described in Sec. 226.4(d).
    (5) The renewal of optional insurance purchased by the consumer and 
added to an existing transaction, if disclosures relating to the initial 
purchase were provided as required by this subpart.
    (b) Assumptions. An assumption occurs when a creditor expressly 
agrees

[[Page 219]]

in writing with a subsequent consumer to accept that consumer as a 
primary obligor on an existing residential mortgage transaction. Before 
the assumption occurs, the creditor shall make new disclosures to the 
subsequent consumer, based on the remaining obligation. If the finance 
charge originally imposed on the existing obligation was an add-on or 
discount finance charge, the creditor need only disclose:
    (1) The unpaid balance of the obligation assumed.
    (2) The total charges imposed by the creditor in connection with the 
assumption.
    (3) The information required to be disclosed under Sec. 226.18(k), 
(l), (m), and (n).
    (4) The annual percentage rate originally imposed on the obligation.
    (5) The payment schedule under Sec. 226.18(g) and the total of 
payments under Sec. 226.18(h) based on the remaining obligation.
    (c) Variable-rate adjustments. 45c An adjustment to the 
interest rate with or without a corresponding adjustment to the payment 
in a variable-rate transaction subject to Sec. 226.19(b) is an event 
requiring new disclosures to the consumer. At least once each year 
during which an interest rate adjustment is implemented without an 
accompanying payment change, and at least 25, but no more than 120, 
calendar days before a payment at a new level is due, the following 
disclosures, as applicable, must be delivered or placed in the mail:
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    45c Information provided in accordance with variable-rate subsequent 
disclosure regulations of other federal agencies may be substituted for 
the disclosure required by paragraph (c) of this section.
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    (1) The current and prior interest rates.
    (2) The index values upon which the current and prior interest rates 
are based.
    (3) The extent to which the creditor has foregone any increase in 
the interest rate.
    (4) The contractual effects of the adjustment, including the payment 
due after the adjustment is made, and a statement of the loan balance.
    (5) The payment, if different from that referred to in paragraph 
(c)(4) of this section, that would be required to fully amortize the 
loan at the new interest rate over the remainder of the loan term.

[46 FR 20892, Apr. 7, 1981, as amended at 52 FR 48671, Dec. 24, 1987]



Sec. 226.21  Treatment of credit balances.

    When a credit balance in excess of $1 is created in connection with 
a transaction (through transmittal of funds to a creditor in excess of 
the total balance due on an account, through rebates of unearned finance 
charges or insurance premiums, or through amounts otherwise owed to or 
held for the benefit of a consumer), the creditor shall:
    (a) Credit the amount of the credit balance to the consumer's 
account;
    (b) Refund any part of the remaining credit balance, upon the 
written request of the consumer; and
    (c) Make a good faith effort to refund to the consumer by cash, 
check, or money order, or credit to a deposit account of the consumer, 
any part of the credit balance remaining in the account for more than 6 
months, except that no further action is required if the consumer's 
current location is not known to the creditor and cannot be traced 
through the consumer's last known address or telephone number.



Sec. 226.22  Determination of annual percentage rate.

    (a) Accuracy of annual percentage rate. (1) The annual percentage 
rate is a measure of the cost of credit, expressed as a yearly rate, 
that relates the amount and timing of value received by the consumer to 
the amount and timing of payments made. The annual percentage rate shall 
be determined in accordance with either the actuarial method or the 
United States Rule method. Explanations, equations and instructions for 
determining the annual percentage rate in accordance with the actuarial 
method are set forth in appendix J to this regulation.45\\d
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    \45~~d\ An error in disclosure of the annual percentage rate or 
finance charge shall not, in itself, be considered a violation of this 
regulation if: (1) The error resulted from a corresponding error in a 
calculation tool used in good faith by the creditor; and (2) upon 
discovery of the error, the creditor promptly discontinues use of that 
calculation tool for disclosure purposes and notifies the Board in 
writing of the error in the calculation tool.

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[[Page 220]]

    (2) As a general rule, the annual percentage rate shall be 
considered accurate if it is not more than \1/8\ of 1 percentage point 
above or below the annual percentage rate determined in accordance with 
paragraph (a)(1) of this section.
    (3) In an irregular transaction, the annual percentage rate shall be 
considered accurate if it is not more than \1/4\ of 1 percentage point 
above or below the annual percentage rate determined in accordance with 
paragraph (a)(1) of this section.46
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    46For purposes of paragraph (a)(3) of this section, an irregular 
transaction is one that includes one or more of the following features: 
multiple advances, irregular payment periods, or irregular payment 
amounts (other than an irregular first period or an irregular first or 
final payment).
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    (4) Mortgage loans. If the annual percentage rate disclosed in a 
transaction secured by real property or a dwelling varies from the 
actual rate determined in accordance with paragraph (a)(1) of this 
section, in addition to the tolerances applicable under paragraphs 
(a)(2) and (3) of this section, the disclosed annual percentage rate 
shall also be considered accurate if:
    (i) The rate results from the disclosed finance charge; and
    (ii)(A) The disclosed finance charge would be considered accurate 
under Sec. 226.18(d)(1); or
    (B) For purposes of rescission, if the disclosed finance charge 
would be considered accurate under Sec. 226.23(g) or (h), whichever 
applies.
    (5) Additional tolerance for mortgage loans. In a transaction 
secured by real property or a dwelling, in addition to the tolerances 
applicable under paragraphs (a)(2) and (3) of this section, if the 
disclosed finance charge is calculated incorrectly but is considered 
accurate under Sec. 226.18(d)(1) or Sec. 226.23(g) or (h), the disclosed 
annual percentage rate shall be considered accurate:
    (i) If the disclosed finance charge is understated, and the 
disclosed annual percentage rate is also understated but it is closer to 
the actual annual percentage rate than the rate that would be considered 
accurate under paragraph (a)(4) of this section;
    (ii) If the disclosed finance charge is overstated, and the 
disclosed annual percentage rate is also overstated but it is closer to 
the actual annual percentage rate than the rate that would be considered 
accurate under paragraph (a)(4) of this section.
    (b) Computation tools. (1) The Regulation Z Annual Percentage Rate 
Tables produced by the Board may be used to determine the annual 
percentage rate, and any rate determined from those tables in accordance 
with the accompanying instructions complies with the requirements of 
this section. Volume I of the tables applies to single advance 
transactions involving up to 480 monthly payments or 104 weekly 
payments. It may be used for regular transactions and for transactions 
with any of the following irregularities: an irregular first period, an 
irregular first payment, and an irregular final payment. Volume II of 
the tables applies to transactions involving multiple advances and any 
type of payment or period irregularity.
    (2) Creditors may use any other computation tool in determining the 
annual percentage rate if the rate so determined equals the rate 
determined in accordance with appendix J, within the degree of accuracy 
set forth in paragraph (a) of this section.
    (c) Single add-on rate transactions. If a single add-on rate is 
applied to all transactions with maturities up to 60 months and if all 
payments are equal in amount and period, a single annual percentage rate 
may be disclosed for all those transactions, so long as it is the 
highest annual percentage rate for any such transaction.
    (d) Certain transactions involving ranges of balances. For purposes 
of disclosing the annual percentage rate referred to in 
Sec. 226.17(g)(4) (Mail or telephone orders--delay in disclosures) and 
(h) (Series of sales--delay in disclosures), if the same finance charge 
is imposed on all balances within a specified range of balances, the 
annual percentage rate computed for the median balance may be disclosed 
for all the

[[Page 221]]

balances. However, if the annual percentage rate computed for the median 
balance understates the annual percentage rate computed for the lowest 
balance by more than 8 percent of the latter rate, the annual percentage 
rate shall be computed on whatever lower balance will produce an annual 
percentage rate that does not result in an understatement of more than 8 
percent of the rate determined on the lowest balance.

[46 FR 20892, Apr. 7, 1981, as amended at 47 FR 756, Jan. 7, 1982; 48 FR 
14886, Apr. 6, 1983; 61 FR 49246, Sept. 19, 1996]



Sec. 226.23  Right of rescission.

    (a) Consumer's right to rescind. (1) In a credit transaction in 
which a security interest is or will be retained or acquired in a 
consumer's principal dwelling, each consumer whose ownership interest is 
or will be subject to the security interest shall have the right to 
rescind the transaction, except for transactions described in paragraph 
(f) of this section.\47\
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    \47\For purposes of this section, the addition to an existing 
obligation of a security interest in a consumer's principal dwelling is 
a transaction. The right of rescission applies only to the addition of 
the security interest and not the existing obligation. The creditor 
shall deliver the notice required by paragraph (b) of this section but 
need not deliver new material disclosures. Delivery of the required 
notice shall begin the rescission period.
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    (2) To exercise the right to rescind, the consumer shall notify the 
creditor of the rescission by mail, telegram or other means of written 
communication. Notice is considered given when mailed, when filed for 
telegraphic transmission or, if sent by other means, when delivered to 
the creditor's designated place of business.
    (3) The consumer may exercise the right to rescind until midnight of 
the third business day following consummation, delivery of the notice 
required by paragraph (b) of this section, or delivery of all material 
disclosures,\48\ whichever occurs last. If the required notice or 
material disclosures are not delivered, the right to rescind shall 
expire 3 years after consummation, upon transfer of all of the 
consumer's interest in the property, or upon sale of the property, 
whichever occurs first. In the case of certain administrative 
proceedings, the rescission period shall be extended in accordance with 
section 125(f) of the Act.
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    \48\ The term ``material disclosures'' means the required 
disclosures of the annual percentage rate, the finance charge, the 
amount financed, the total payments, the payment schedule, and the 
disclosures and limitations referred to in Sec. 226.32 (c) and (d).
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    (4) When more than one consumer in a transaction has the right to 
rescind, the exercise of the right by one consumer shall be effective as 
to all consumers.
    (b)(1) Notice of right to rescind. In a transaction subject to 
rescission, a creditor shall deliver 2 copies of the notice of the right 
to rescind to each consumer entitled to rescind. The notice shall be on 
a separate document that identifies the transaction and shall clearly 
and conspicuously disclose the following:
    (i) The retention or acquisition of a security interest in the 
consumer's principal dwelling.
    (ii) The consumer's right to rescind the transaction.
    (iii) How to exercise the right to rescind, with a form for that 
purpose, designating the address of the creditor's place of business.
    (iv) The effects of rescission, as described in paragraph (d) of 
this section.
    (v) The date the rescission period expires.
    (2) Proper form of notice. To satisfy the disclosure requirements of 
paragraph (b)(1) of this section, the creditor shall provide the 
appropriate model form in Appendix H of this part or a substantially 
similar notice.
    (c) Delay of creditor's performance. Unless a consumer waives the 
right of rescission under paragraph (e) of this section, no money shall 
be disbursed other than in escrow, no services shall be performed and no 
materials delivered until the rescission period has expired and the 
creditor is reasonably satisfied that the consumer has not rescinded.
    (d) Effects of rescission. (1) When a consumer rescinds a 
transaction, the security interest giving rise to the right of 
rescission becomes void and the consumer shall not be liable for any 
amount, including any finance charge.

[[Page 222]]

    (2) Within 20 calendar days after receipt of a notice of rescission, 
the creditor shall return any money or property that has been given to 
anyone in connection with the transaction and shall take any action 
necessary to reflect the termination of the security interest.
    (3) If the creditor has delivered any money or property, the 
consumer may retain possession until the creditor has met its obligation 
under paragraph (d)(2) of this section. When the creditor has complied 
with that paragraph, the consumer shall tender the money or property to 
the creditor or, where the latter would be impracticable or inequitable, 
tender its reasonable value. At the consumer's option, tender of 
property may be made at the location of the property or at the 
consumer's residence. Tender of money must be made at the creditor's 
designated place of business. If the creditor does not take possession 
of the money or property within 20 calendar days after the consumer's 
tender, the consumer may keep it without further obligation.
    (4) The procedures outlined in paragraphs (d) (2) and (3) of this 
section may be modified by court order.
    (e) Consumer's waiver of right to rescind. (1) The consumer may 
modify or waive the right to rescind if the consumer determines that the 
extension of credit is needed to meet a bona fide personal financial 
emergency. To modify or waive the right, the consumer shall give the 
creditor a dated written statement that describes the emergency, 
specifically modifies or waives the right to rescind, and bears the 
signature of all the consumers entitled to rescind. Printed forms for 
this purpose are prohibited, except as provided in paragraph (e)(2) of 
this section.
    (2) The need of the consumer to obtain funds immediately shall be 
regarded as a bona fide personal financial emergency provided that the 
dwelling securing the extension of credit is located in an area declared 
during June through September 1993, pursuant to 42 U.S.C. 5170, to be a 
major disaster area because of severe storms and flooding in the 
Midwest.48a In this instance, creditors may use printed forms for 
the consumer to waive the right to rescind. This exemption to paragraph 
(e)(1) of this section shall expire one year from the date an area was 
declared a major disaster.
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    \48a\ A list of the affected areas will be maintained by the Board.
---------------------------------------------------------------------------

    (3) The consumer's need to obtain funds immediately shall be 
regarded as a bona fide personal financial emergency provided that the 
dwelling securing the extension of credit is located in an area declared 
during June through September 1994 to be a major disaster area, pursuant 
to 42 U.S.C. 5170, because of severe storms and flooding in the 
South.48b In this instance, creditors may use printed forms for the 
consumer to waive the right to rescind. This exemption to paragraph 
(e)(1) of this section shall expire one year from the date an area was 
declared a major disaster.
---------------------------------------------------------------------------

    \48b\ A list of the affected areas will be maintained and published 
by the Board. Such areas now include parts of Alabama, Florida, and 
Georgia.
---------------------------------------------------------------------------

    (4) The consumer's need to obtain funds immediately shall be 
regarded as a bona fide personal financial emergency provided that the 
dwelling securing the extension of credit is located in an area declared 
during October 1994 to be a major disaster area, pursuant to 42 U.S.C. 
5170, because of severe storms and flooding in Texas.48c In this 
instance, creditors may use printed forms for the consumer to waive the 
right to rescind. This exemption to paragraph (e)(1) of this section 
shall expire one year from the date an area was declared a major 
disaster.
---------------------------------------------------------------------------

    \48c\ A list of the affected areas will be maintained and published 
by the Board. Such areas now include the following counties in Texas: 
Angelina, Austin, Bastrop, Brazos, Brazoria, Burleson, Chambers, 
Fayette, Fort Bend, Galveston, Grimes, Hardin, Harris, Houston, Jackson, 
Jasper, Jefferson, Lee, Liberty, Madison, Matagorda, Montgomery, 
Nacagdoches, Orange, Polk, San Augustine, San Jacinto, Shelby, Trinity, 
Victoria, Washington, Waller, Walker, and Wharton.
---------------------------------------------------------------------------

    (f) Exempt transactions. The right to rescind does not apply to the 
following:
    (1) A residential mortgage transaction.

[[Page 223]]

    (2) A refinancing or consolidation by the same creditor of an 
extension of credit already secured by the consumer's principal 
dwelling. The right of rescission shall apply, however, to the extent 
the new amount financed exceeds the unpaid principal balance, any earned 
unpaid finance charge on the existing debt, and amounts attributed 
solely to the costs of the refinancing or consolidation.
    (3) A transaction in which a state agency is a creditor.
    (4) An advance, other than an initial advance, in a series of 
advances or in a series of single-payment obligations that is treated as 
a single transaction under Sec. 226.17(c)(6), if the notice required by 
paragraph (b) of this section and all material disclosures have been 
given to the consumer.
    (5) A renewal of optional insurance premiums that is not considered 
a refinancing under Sec. 226.20(a)(5).
    (g) Tolerances for accuracy.--(1) One-half of 1 percent tolerance. 
Except as provided in paragraphs (g)(2) and (h)(2) of this section, the 
finance charge and other disclosures affected by the finance charge 
(such as the amount financed and the annual percentage rate) shall be 
considered accurate for purposes of this section if the disclosed 
finance charge:
    (i) is understated by no more than \1/2\ of 1 percent of the face 
amount of the note or $100, whichever is greater; or
    (ii) is greater than the amount required to be disclosed.
    (2) One percent tolerance. In a refinancing of a residential 
mortgage transaction with a new creditor (other than a transaction 
covered by Sec. 226.32), if there is no new advance and no consolidation 
of existing loans, the finance charge and other disclosures affected by 
the finance charge (such as the amount financed and the annual 
percentage rate) shall be considered accurate for purposes of this 
section if the disclosed finance charge:
    (i) is understated by no more than 1 percent of the face amount of 
the note or $100, whichever is greater; or
    (ii) is greater than the amount required to be disclosed.
    (h) Special rules for foreclosures--(1) Right to rescind. After the 
initiation of foreclosure on the consumer's principal dwelling that 
secures the credit obligation, the consumer shall have the right to 
rescind the transaction if:
    (i) A mortgage broker fee that should have been included in the 
finance charge was not included; or
    (ii) The creditor did not provide the properly completed appropriate 
model form in Appendix H of this part, or a substantially similar notice 
of rescission.
    (2) Tolerance for disclosures. After the initiation of foreclosure 
on the consumer's principal dwelling that secures the credit obligation, 
the finance charge and other disclosures affected by the finance charge 
(such as the amount financed and the annual percentage rate) shall be 
considered accurate for purposes of this section if the disclosed 
finance charge:
    (i) is understated by no more than $35; or
    (ii) is greater than the amount required to be disclosed.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 51 FR 45299, Dec. 18, 
1986; 58 FR 40583, July 29, 1993; 59 FR 40204, Aug. 5, 1994; 59 FR 
63715, Dec. 9, 1994; 60 FR 15471, Mar. 24, 1995; 61 FR 49247, Sept. 19, 
1996]



Sec. 226.24  Advertising.

    (a) Actually available terms. If an advertisement for credit states 
specific credit terms, it shall state only those terms that actually are 
or will be arranged or offered by the creditor.
    (b) Advertisement of rate of finance charge. If an advertisement 
states a rate of finance charge, it shall state the rate as an ``annual 
percentage rate,'' using that term. If the annual percentage rate may be 
increased after consummation, the advertisement shall state that fact. 
The advertisement shall not state any other rate, except that a simple 
annual rate or periodic rate that is applied to an unpaid balance may be 
stated in conjunction with, but not more conspicuously than, the annual 
percentage rate.
    (c) Advertisement of terms that require additional disclosures. (1) 
If any of the following terms is set forth in an advertisement, the 
advertisement shall meet the requirements of paragraph (c)(2) of this 
section:
    (i) The amount or percentage of any downpayment.

[[Page 224]]

    (ii) The number of payments or period of repayment.
    (iii) The amount of any payment.
    (iv) The amount of any finance charge.
    (2) An advertisement stating any of the terms in paragraph (c)(1) of 
this section shall state the following terms,49 as applicable:
---------------------------------------------------------------------------

    49An example of one or more typical extensions of credit with a 
statement of all the terms applicable to each may be used.
---------------------------------------------------------------------------

    (i) The amount or percentage of the downpayment.
    (ii) The terms of repayment.
    (iii) The annual percentage rate, using that term, and, if the rate 
may be increased after consummation, that fact.
    (d) Catalogs and multiple-page advertisements. (1) If a catalog or 
other multiple-page advertisement gives information in a table or 
schedule in sufficient detail to permit determination of the disclosures 
required by paragraph (c)(2) of this section, it shall be considered a 
single advertisement if:
    (i) The table or schedule is clearly set forth; and
    (ii) Any statement of the credit terms in paragraph (c)(1) of this 
section appearing anywhere else in the catalog or advertisement clearly 
refers to the page on which the table or schedule begins.
    (2) A catalog or multiple-page advertisement complies with paragraph 
(c)(2) of this section if the table or schedule of terms includes all 
appropriate disclosures for a representative scale of amounts up to the 
level of the more commonly sold higher-priced property or services 
offered.



                        Subpart D--Miscellaneous



Sec. 226.25  Record retention.

    (a) General rule. A creditor shall retain evidence of compliance 
with this regulation (other than advertising requirements under 
Secs. 226.16 and 226.24) for 2 years after the date disclosures are 
required to be made or action is required to be taken. The 
administrative agencies responsible for enforcing the regulation may 
require creditors under their jurisdictions to retain records for a 
longer period if necessary to carry out their enforcement 
responsibilities under section 108 of the act.
    (b) Inspection of records. A creditor shall permit the agency 
responsible for enforcing this regulation with respect to that creditor 
to inspect its relevant records for compliance.



Sec. 226.26  Use of annual percentage rate in oral disclosures.

    (a) Open-end credit. In an oral response to a consumer's inquiry 
about the cost of open-end credit, only the annual percentage rate or 
rates shall be stated, except that the periodic rate or rates also may 
be stated. If the annual percentage rate cannot be determined in advance 
because there are finance charges other than a periodic rate, the 
corresponding annual percentage rate shall be stated, and other cost 
information may be given.
    (b) Closed-end credit. In an oral response to a consumer's inquiry 
about the cost of closed-end credit, only the annual percentage rate 
shall be stated, except that a simple annual rate or periodic rate also 
may be stated if it is applied to an unpaid balance. If the annual 
percentage rate cannot be determined in advance, the annual percentage 
rate for a sample transaction shall be stated, and other cost 
information for the consumer's specific transaction may be given.



Sec. 226.27  Spanish language disclosures.

    All disclosures required by this regulation shall be made in the 
English language, except in the Commonwealth of Puerto Rico, where 
creditors may, at their option, make disclosures in the Spanish 
language. If Spanish disclosures are made, English disclosures shall be 
provided on the consumer's request, either in substitution for or in 
addition to the Spanish disclosures. This requirement for providing 
English disclosures on request shall not apply to advertisements subject 
to Secs. 226.16 and 226.24 of this regulation.



Sec. 226.28  Effect on State laws.

    (a) Inconsistent disclosure requirements. (1) Except as provided in 
paragraph (d) of this section, State law requirements that are 
inconsistent with the requirements contained in chapter 1 (General

[[Page 225]]

Provisions), chapter 2 (Credit Transactions), or chapter 3 (Credit 
Advertising) of the act and the implementing provisions of this 
regulation are preempted to the extent of the inconsistency. A State law 
is inconsistent if it requires a creditor to make disclosures or take 
actions that contradict the requirements of the Federal law. A State law 
is contradictory if it requires the use of the same term to represent a 
different amount or a different meaning than the Federal law, or if it 
requires the use of a term different from that required in the Federal 
law to describe the same item. A creditor, State, or other interested 
party may request the Board to determine whether a State law requirement 
is inconsistent. After the Board determines that a State law is 
inconsistent, a creditor may not make disclosures using the inconsistent 
term or form.
    (2)(i) State law requirements are inconsistent with the requirements 
contained in sections 161 (Correction of billing errors) or 162 
(Regulation of credit reports) of the Act and the implementing 
provisions of this regulation and are preempted if they provide rights, 
responsibilities, or procedures for consumers or creditors that are 
different from those required by the Federal law. However, a State law 
that allows a consumer to inquire about an open-end credit account and 
imposes on the creditor an obligation to respond to such inquiry after 
the time allowed in the Federal law for the consumer to submit written 
notice of a billing error shall not be preempted in any situation where 
the time period for making written notice under this regulation has 
expired. If a creditor gives written notice of a consumer's rights under 
such State law, the notice shall state that reliance on the longer time 
period available under State law may result in the loss of important 
rights that could be preserved by acting more promptly under Federal 
law; it shall also explain that the State law provisions apply only 
after expiration of the time period for submitting a proper written 
notice of a billing error under the Federal law. If the State 
disclosures are made on the same side of a page as the required Federal 
disclosures, the State disclosures shall appear under a demarcation line 
below the Federal disclosures, and the Federal disclosures shall be 
identified by a heading indicating that they are made in compliance with 
Federal law.
    (ii) State law requirements are inconsistent with the requirements 
contained in chapter 4 (Credit billing) of the Act (other than section 
161 or 162) and the implementing provisions of this regulation and are 
preempted if the creditor cannot comply with State law without violating 
Federal law.
    (iii) A State may request the Board to determine whether its law is 
inconsistent with chapter 4 of the Act and its implementing provisions.
    (b) Equivalent disclosure requirements. If the Board determines that 
a disclosure required by state law (other than a requirement relating to 
the finance charge, annual percentage rate, or the disclosures required 
under Sec. 226.32) is substantially the same in meaning as a disclosure 
required under the act or this regulation, creditors in that state may 
make the state disclosure in lieu of the federal disclosure. A creditor, 
State, or other interested party may request the Board to determine 
whether a State disclosure is substantially the same in meaning as a 
Federal disclosure.
    (c) Request for determination. The procedures under which a request 
for a determination may be made under this section are set forth in 
appendix A.
    (d) Special rule for credit and charge cards. State law requirements 
relating to the disclosure of credit information in any credit or charge 
card application or solicitation that is subject to the requirements of 
section 127(c) of chapter 2 of the act (Sec. 226.5a of the regulation) 
or in any renewal notice for a credit or charge card that is subject to 
the requirements of section 127(d) of chapter 2 of the act 
(Sec. 226.9(e) of the regulation) are preempted. State laws relating to 
the enforcement of section 127 (c) and (d) of the act are not preempted.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 54 FR 13867, Apr. 6, 
1989; 54 FR 32954, Aug. 11, 1989; 60 FR 15471, Mar. 24, 1995]

[[Page 226]]



Sec. 226.29  State exemptions.

    (a) General rule. Any State may apply to the Board to exempt a class 
of transactions within the State from the requirements of chapter 2 
(Credit transactions) or chapter 4 (Credit billing) of the Act and the 
corresponding provisions of this regulation. The Board shall grant an 
exemption if it determines that:
    (1) The State law is substantially similar to the Federal law or, in 
the case of chapter 4, affords the consumer greater protection than the 
Federal law; and
    (2) There is adequate provision for enforcement.
    (b) Civil liability. (1) No exemptions granted under this section 
shall extend to the civil liability provisions of sections 130 and 131 
of the Act.
    (2) If an exemption has been granted, the disclosures required by 
the applicable State law (except any additional requirements not imposed 
by Federal law) shall constitute the disclosures required by this Act.
    (c) Applications. The procedures under which a State may apply for 
an exemption under this section are set forth in appendix B.

[46 FR 20892, Apr. 7, 1981; 46 FR 29246, June 1, 1981]



Sec. 226.30  Limitation on rates.

    A creditor shall include in any consumer credit contract secured by 
a dwelling and subject to the act and this regulation the maximum 
interest rate that may be imposed during the term of the obligation \50\ 
when:
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    \50\ Compliance with this section will constitute compliance with 
the disclosure requirements on limitations on increases in footnote 12 
to Secs. 226.6(a)(2) and 226.18(f)(2) until October 1, 1988.
---------------------------------------------------------------------------

    (a) In the case of closed-end credit, the annual percentage rate may 
increase after consummation, or
    (b) In the case of open-end credit, the annual percentage rate may 
increase during the plan.

[52 FR 43181, Nov. 9, 1987]



     Subpart E--Special Rules for Certain Home Mortgage Transactions

    Source: Reg. Z, 60 FR 15471, Mar. 24, 1995, unless otherwise noted.



Sec. 226.31  General rules.

    (a) Relation to other subparts in this part. The requirements and 
limitations of this subpart are in addition to and not in lieu of those 
contained in other subparts of this part.
    (b) Form of disclosures. The creditor shall make the disclosures 
required by this subpart clearly and conspicuously in writing, in a form 
that the consumer may keep.
    (c) Timing of disclosure--(1) Disclosures for certain closed-end 
home mortgages. The creditor shall furnish the disclosures required by 
Sec. 226.32 at least three business days prior to consummation of a 
mortgage transaction covered by Sec. 226.32.
    (i) Change in terms. After complying with paragraph (c)(1) of this 
section and prior to consummation, if the creditor changes any term that 
makes the disclosures inaccurate, new disclosures shall be provided in 
accordance with the requirements of this subpart.
    (ii) Telephone disclosures. A creditor may provide new disclosures 
by telephone if the consumer initiates the change and if, at 
consummation:
    (A) The creditor provides new written disclosures; and
    (B) The consumer and creditor sign a statement that the new 
disclosures were provided by telephone at least three days prior to 
consummation.
    (iii) Consumer's waiver of waiting period before consummation. The 
consumer may, after receiving the disclosures required by paragraph 
(c)(1) of this section, modify or waive the three-day waiting period 
between delivery of those disclosures and consummation if the consumer 
determines that the extension of credit is needed to meet a bona fide 
personal financial emergency. To modify or waive the right, the consumer 
shall give the creditor a dated written statement that describes the 
emergency, specifically modifies or waives the waiting period, and bears 
the signature of all the consumers entitled to the waiting period. 
Printed

[[Page 227]]

forms for this purpose are prohibited, except when creditors are 
permitted to use printed forms pursuant to Sec. 226.23(e)(2).
    (2) Disclosures for reverse mortgages. The creditor shall furnish 
the disclosures required by Sec. 226.33 at least three business days 
prior to:
    (i) Consummation of a closed-end credit transaction; or
    (ii) The first transaction under an open-end credit plan.
    (d) Basis of disclosures and use of estimates--(1) Legal Obligation. 
Disclosures shall reflect the terms of the legal obligation between the 
parties.
    (2) Estimates. If any information necessary for an accurate 
disclosure is unknown to the creditor, the creditor shall make the 
disclosure based on the best information reasonably available at the 
time the disclosure is provided, and shall state clearly that the 
disclosure is an estimate.
    (3) Per-diem interest. For a transaction in which a portion of the 
interest is determined on a per-diem basis and collected at 
consummation, any disclosure affected by the per-diem interest shall be 
considered accurate if the disclosure is based on the information known 
to the creditor at the time that the disclosure documents are prepared.
    (e) Multiple creditors; multiple consumers. If a transaction 
involves more than one creditor, only one set of disclosures shall be 
given and the creditors shall agree among themselves which creditor must 
comply with the requirements that this part imposes on any or all of 
them. If there is more than one consumer, the disclosures may be made to 
any consumer who is primarily liable on the obligation. If the 
transaction is rescindable under Sec. 226.15 or Sec. 226.23, however, 
the disclosures shall be made to each consumer who has the right to 
rescind.
    (f) Effect of subsequent events. If a disclosure becomes inaccurate 
because of an event that occurs after the creditor delivers the required 
disclosures, the inaccuracy is not a violation of Regulation Z (12 CFR 
part 226), although new disclosures may be required for mortgages 
covered by Sec. 226.32 under paragraph (c) of this section, 
Sec. 226.9(c), Sec. 226.19, or Sec. 226.20.
    (g) Accuracy of annual percentage rate. For purposes of Sec. 226.32, 
the annual percentage rate shall be considered accurate, and may be used 
in determining whether a transaction is covered by Sec. 226.32, if it is 
accurate according to the requirements and within the tolerances under 
Sec. 226.22. The finance charge tolerances for rescission under 
Sec. 226.23(g) or (h) shall not apply for this purpose.

[Reg. Z, 60 FR 15471, Mar. 24, 1995, as amended at 60 FR 29969, June 7, 
1995; 61 FR 49247, Sept. 19, 1996]



Sec. 226.32  Requirements for certain closed-end home mortgages.

    (a) Coverage. (1) Except as provided in paragraph (a)(2) of this 
section, the requirements of this section apply to a consumer credit 
transaction that is secured by the consumer's principal dwelling, and in 
which either:
    (i) The annual percentage rate at consummation will exceed by more 
than 10 percentage points the yield on Treasury securities having 
comparable periods of maturity to the loan maturity as of the fifteenth 
day of the month immediately preceding the month in which the 
application for the extension of credit is received by the creditor; or
    (ii) The total points and fees payable by the consumer at or before 
loan closing will exceed the greater of 8 percent of the total loan 
amount, or $400; the $400 figure shall be adjusted annually on January 1 
by the annual percentage change in the Consumer Price Index that was 
reported on the preceding June 1.
    (2) This section does not apply to the following:
    (i) A residential mortgage transaction.
    (ii) A reverse mortgage transaction subject to Sec. 226.33.
    (iii) An open-end credit plan subject to subpart B of this part.
    (b) Definitions. For purposes of this subpart, the following 
definitions apply:
    (1) For purposes of paragraph (a)(1)(ii) of this section, points and 
fees mean:
    (i) All items required to be disclosed under Sec. 226.4(a) and 
226.4(b), except interest or the time-price differential;

[[Page 228]]

    (ii) All compensation paid to mortgage brokers; and
    (iii) All items listed in Sec. 226.4(c)(7) (other than amounts held 
for future payment of taxes) unless the charge is reasonable, the 
creditor receives no direct or indirect compensation in connection with 
the charge, and the charge is not paid to an affiliate of the creditor.
    (2) Affiliate means any company that controls, is controlled by, or 
is under common control with another company, as set forth in the Bank 
Holding Company Act of 1956 (12 U.S.C. 1841 et seq.).
    (c) Disclosures. In addition to other disclosures required by this 
part, in a mortgage subject to this section the creditor shall disclose 
the following:
    (1) Notices. The following statement: ``You are not required to 
complete this agreement merely because you have received these 
disclosures or have signed a loan application. If you obtain this loan, 
the lender will have a mortgage on your home. You could lose your home, 
and any money you have put into it, if you do not meet your obligations 
under the loan.''
    (2) Annual percentage rate. The annual percentage rate.
    (3) Regular payment. The amount of the regular monthly (or other 
periodic) payment.
    (4) Variable-rate. For variable-rate transactions, a statement that 
the interest rate and monthly payment may increase, and the amount of 
the single maximum monthly payment, based on the maximum interest rate 
required to be disclosed under Sec. 226.30.
    (d) Limitations. A mortgage transaction subject to this section may 
not provide for the following terms:
    (1)(i) Balloon payment. For a loan with a term of less than five 
years, a payment schedule with regular periodic payments that when 
aggregated do not fully amortize the outstanding principal balance.
    (ii) Exception. The limitations in paragraph (d)(1)(i) of this 
section do not apply to loans with maturities of less than one year, if 
the purpose of the loan is a ``bridge'' loan connected with the 
acquisition or construction of a dwelling intended to become the 
consumer's principal dwelling.
    (2) Negative amortization. A payment schedule with regular periodic 
payments that cause the principal balance to increase.
    (3) Advance payments. A payment schedule that consolidates more than 
two periodic payments and pays them in advance from the proceeds.
    (4) Increased interest rate. An increase in the interest rate after 
default.
    (5) Rebates. A refund calculated by a method less favorable than the 
actuarial method (as defined by section 933(d) of the Housing and 
Community Development Act of 1992, 15 U.S.C. 1615(d)), for rebates of 
interest arising from a loan acceleration due to default.
    (6) Prepayment penalties. Except as allowed under paragraph (d)(7) 
of this section, a penalty for paying all or part of the principal 
before the date on which the principal is due. A prepayment penalty 
includes computing a refund of unearned interest by a method that is 
less favorable to the consumer than the actuarial method, as defined by 
section 933(d) of the Housing and Community Development Act of 1992.
    (7) Prepayment penalty exception. A mortgage transaction subject to 
this section may provide for a prepayment penalty otherwise permitted by 
law (including a refund calculated according to the rule of 78s) if:
    (i) The penalty can be exercised only for the first five years 
following consummation;
    (ii) The source of the prepayment funds is not a refinancing by the 
creditor or an affiliate of the creditor; and
    (iii) At consummation, the consumer's total monthly debts (including 
amounts owed under the mortgage) do not exceed 50 percent of the 
consumer's monthly gross income, as verified by the consumer's signed 
financial statement, a credit report, and payment records for employment 
income.
    (e) Prohibited acts and practices. A creditor extending mortgage 
credit subject to this section may not:
    (1) Repayment ability. Engage in a pattern or practice of extending 
such credit to a consumer based on the consumer's collateral if, 
considering the consumer's current and expected income, current 
obligations, and employment status, the consumer will be unable to

[[Page 229]]

make the scheduled payments to repay the obligation.
    (2) Home improvement contracts. Pay a contractor under a home 
improvement contract from the proceeds of a mortgage covered by this 
section, other than:
    (i) By an instrument payable to the consumer or jointly to the 
consumer and the contractor; or
    (ii) At the election of the consumer, through a third-party escrow 
agent in accordance with terms established in a written agreement signed 
by the consumer, the creditor, and the contractor prior to the 
disbursement.
    (3) Notice to assignee. Sell or otherwise assign a mortgage subject 
to this section without furnishing the following statement to the 
purchaser or assignee: ``Notice: This is a mortgage subject to special 
rules under the federal Truth in Lending Act. Purchasers or assignees of 
this mortgage could be liable for all claims and defenses with respect 
to the mortgage that the borrower could assert against the creditor.''

[Reg. Z, 60 FR 15472, Mar. 24, 1995, as amended at 60 FR 29969, June 7, 
1995]



Sec. 226.33  Requirements for reverse mortgages.

    (a) Definition. For purposes of this subpart, reverse mortgage 
transaction means a nonrecourse consumer credit obligation in which:
    (1) A mortgage, deed of trust, or equivalent consensual security 
interest securing one or more advances is created in the consumer's 
principal dwelling; and
    (2) Any principal, interest, or shared appreciation or equity is due 
and payable (other than in the case of default) only after:
    (i) The consumer dies;
    (ii) The dwelling is transferred; or
    (iii) The consumer ceases to occupy the dwelling as a principal 
dwelling.
    (b) Content of disclosures. In addition to other disclosures 
required by this part, in a reverse mortgage transaction the creditor 
shall provide the following disclosures in a form substantially similar 
to the model form found in paragraph (d) of Appendix K of this part:
    (1) Notice. A statement that the consumer is not obligated to 
complete the reverse mortgage transaction merely because the consumer 
has received the disclosures required by this section or has signed an 
application for a reverse mortgage loan.
    (2) Total annual loan cost rates. A good-faith projection of the 
total cost of the credit, determined in accordance with paragraph (c) of 
this section and expressed as a table of ``total annual loan cost 
rates,'' using that term, in accordance with Appendix K of this part.
    (3) Itemization of pertinent information. An itemization of loan 
terms, charges, the age of the youngest borrower and the appraised 
property value.
    (4) Explanation of table. An explanation of the table of total 
annual loan cost rates as provided in the model form found in paragraph 
(d) of Appendix K of this part.
    (c) Projected total cost of credit. The projected total cost of 
credit shall reflect the following factors, as applicable:
    (1) Costs to consumer. All costs and charges to the consumer, 
including the costs of any annuity the consumer purchases as part of the 
reverse mortgage transaction.
    (2) Payments to consumer. All advances to and for the benefit of the 
consumer, including annuity payments that the consumer will receive from 
an annuity that the consumer purchases as part of the reverse mortgage 
transaction.
    (3) Additional creditor compensation. Any shared appreciation or 
equity in the dwelling that the creditor is entitled by contract to 
receive.
    (4) Limitations on consumer liability. Any limitation on the 
consumer's liability (such as nonrecourse limits and equity conservation 
agreements).
    (5) Assumed annual appreciation rates. Each of the following assumed 
annual appreciation rates for the dwelling:
    (i) 0 percent.
    (ii) 4 percent.
    (iii) 8 percent.
    (6) Assumed loan period. (i) Each of the following assumed loan 
periods, as provided in Appendix L of this part:
    (A) Two years.

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    (B) The actuarial life expectancy of the consumer to become 
obligated on the reverse mortgage transaction (as of that consumer's 
most recent birthday). In the case of multiple consumers, the period 
shall be the actuarial life expectancy of the youngest consumer (as of 
that consumer's most recent birthday).
    (C) The actuarial life expectancy specified by paragraph 
(c)(6)(i)(B) of this section, multiplied by a factor of 1.4 and rounded 
to the nearest full year.
    (ii) At the creditor's option, the actuarial life expectancy 
specified by paragraph (c)(6)(i)(B) of this section, multiplied by a 
factor of .5 and rounded to the nearest full year.

                    Appendix A--Effect on State Laws

                        Request for Determination

    A request for a determination that a State law is inconsistent or 
that a State law is substantially the same as the Act and regulation 
shall be in writing and addressed to the Secretary, Board of Governors 
of the Federal Reserve System, Washington, DC 20551. The request shall 
be made pursuant to the procedures herein and the Board's Rules of 
Procedure (12 CFR Part 262).

                          Supporting Documents

    A request for a determination shall include the following items:
    (1) The text of the State statute, regulation, or other document 
that is the subject of the request.
    (2) Any other statute, regulation, or judicial or administrative 
opinion that implements, interprets, or applies the relevant provision.
    (3) A comparison of the State law with the corresponding provision 
of the Federal law, including a full discussion of the basis for the 
requesting party's belief that the State provision is either 
inconsistent or substantially the same.
    (4) Any other information that the requesting party believes may 
assist the Board in its determination.

                     Public Notice of Determination

    Notice that the Board intends to make a determination (either on 
request or on its own motion) will be published in the Federal Register, 
with an opportunity for public comment, unless the Board finds that 
notice and opportunity for comment would be impracticable, unnecessary, 
or contrary to the public interest and publishes its reasons for such 
decision.
    Subject to the Board's Rules Regarding Availability of Information 
(12 CFR Part 261), all requests made, including any documents and other 
material submitted in support of the requests, will be made available 
for public inspection and copying.

                       Notice After Determination

    Notice of a final determination will be published in the Federal 
Register, and the Board will furnish a copy of such notice to the party 
who made the request and to the appropriate State official.

                        Reversal of Determination

    The Board reserves the right to reverse a determination for any 
reason bearing on the coverage or effect of State or Federal law.
    Notice of reversal of a determination will be published in the 
Federal Register and a copy furnished to the appropriate State official.

[Reg. Z, 46 FR 20892, Apr. 7, 1981; 46 FR 29246, June 1, 1981]

                      Appendix B--State Exemptions

                               Application

    Any State may apply to the Board for a determination that a class of 
transactions subject to State law is exempt from the requirements of the 
Act and this regulation. An application shall be in writing and 
addressed to the Secretary, Board of Governors of the Federal Reserve 
System, Washington, DC 20551, and shall be signed by the appropriate 
State official. The application shall be made pursuant to the procedures 
herein and the Board's Rules of Procedure (12 CFR Part 262).

                          Supporting Documents

    An application shall be accompanied by:
    (1) The text of the State statute or regulation that is the subject 
of the application, and any other statute, regulation, or judicial or 
administrative opinion that implements, interprets, or applies it.
    (2) A comparison of the State law with the corresponding provisions 
of the Federal law.
    (3) The text of the State statute or regulation that provides for 
civil and criminal liability and administrative enforcement of the State 
law.
    (4) A statement of the provisions for enforcement, including an 
identification of the State office that administers the relevant law, 
information on the funding and the number and qualifications of 
personnel engaged in enforcement, and a description of the enforcement 
procedures to be followed, including information on examination 
procedures, practices, and policies. If an exemption application extends 
to federally chartered institutions, the applicant must furnish evidence 
that arrangements have been

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made with the appropriate Federal agencies to ensure adequate 
enforcement of State law in regard to such creditors.
    (5) A statement of reasons to support the applicant's claim that an 
exemption should be granted.

                      Public Notice of Application

    Notice of an application will be published, with an opportunity for 
public comment, in the Federal Register, unless the Board finds that 
notice and opportunity for comment would be impracticable, unnecessary, 
or contrary to the public interest and publishes its reasons for such 
decision.
    Subject to the Board's Rules Regarding Availability of Information 
(12 CFR Part 261), all applications made, including any documents and 
other material submitted in support of the applications, will be made 
available for public inspection and copying. A copy of the application 
also will be made available at the Federal Reserve Bank of each district 
in which the applicant is situated.

                         Favorable Determination

    If the Board determines on the basis of the information before it 
that an exemption should be granted, notice of the exemption will be 
published in the Federal Register, and a copy furnished to the applicant 
and to each Federal official responsible for administrative enforcement.
    The appropriate State official shall inform the Board within 30 days 
of any change in its relevant law or regulations. The official shall 
file with the Board such periodic reports as the Board may require.
    The Board will inform the appropriate State official of any 
subsequent amendments to the Federal law, regulation, interpretations, 
or enforcement policies that might require an amendment to State law, 
regulation, interpretations, or enforcement procedures.

                          Adverse Determination

    If the Board makes an initial determination that an exemption should 
not be granted, the Board will afford the applicant a reasonable 
opportunity to demonstrate further that an exemption is proper. If the 
Board ultimately finds that an exemption should not be granted, notice 
of an adverse determination will be published in the Federal Register 
and a copy furnished to the applicant.

                         Revocation of Exemption

    The Board reserves the right to revoke an exemption if at any time 
it determines that the standards required for an exemption are not met.
    Before taking such action, the Board will notify the appropriate 
State official of its intent, and will afford the official such 
opportunity as it deems appropriate in the circumstances to demonstrate 
that revocation is improper. If the Board ultimately finds that 
revocation is proper, notice of the Board's intention to revoke such 
exemption will be published in the Federal Register with a reasonable 
period of time for interested persons to comment.
    Notice of revocation of an exemption will be published in the 
Federal Register. A copy of such notice will be furnished to the 
appropriate State official and to the Federal officials responsible for 
enforcement. Upon revocation of an exemption, creditors in that State 
shall then be subject to the requirements of the Federal law.

              Appendix C--Issuance of Staff Interpretations

                     Official Staff Interpretations

    Officials in the Board's Division of Consumer and Community Affairs 
are authorized to issue official staff interpretations of this 
regulation. These interpretations provide the protection afforded under 
section 130(f) of the Act. Except in unusual circumstances, such 
interpretations will not be issued separately but will be incorporated 
in an official commentary to the regulation which will be amended 
periodically.

         Requests for Issuance of Official Staff Interpretations

    A request for an official staff interpretation shall be in writing 
and addressed to the Director, Division of Consumer and Community 
Affairs, Board of Governors of the Federal Reserve System, Washington, 
DC 20551. The request shall contain a complete statement of all relevant 
facts concerning the issue, including copies of all pertinent documents.

                        Scope of Interpretations

    No staff interpretations will be issued approving creditors' forms, 
statements, or calculation tools or methods. This restriction does not 
apply to forms, statements, tools, or methods whose use is required or 
sanctioned by a government agency.

             Appendix D--Multiple Advance Construction Loans

    Section 226.17(c)(6) permits creditors to treat multiple advance 
loans to finance construction of a dwelling that may be permanently 
financed by the same creditor either as a single transaction or as more 
than one transaction. If the actual schedule of advances is not known, 
the following methods may be used to estimate the interest portion of 
the finance charge and the annual percentage rate and to make 
disclosures. If the creditor chooses to disclose the construction

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phase separately, whether interest is payable periodically or at the end 
of construction, part I may be used. If the creditor chooses to disclose 
the construction and the permanent financing as one transaction, part II 
may be used.

            Part I--Construction Period Disclosed Separately

    A. If interest is payable only on the amount actually advanced for 
the time it is outstanding:
    1. Estimated interest--Assume that one-half of the commitment amount 
is outstanding at the contract interest rate for the entire construction 
period.
    2. Estimated annual percentage rate--Assume a single payment loan 
that matures at the end of the construction period. The finance charge 
is the sum of the estimated interest and any prepaid finance charge. The 
amount financed for computation purposes is determined by subtracting 
any prepaid finance charge from one-half of the commitment amount.
    3. Repayment schedule--The number and amounts of any interest 
payments may be omitted in disclosing the payment schedule under 
Sec. 226.18(g). The fact that interest payments are required and the 
timing of such payments shall be disclosed.
    4. Amount financed--The amount financed for disclosure purposes is 
the entire commitment amount less any prepaid finance charge.
    B. If interest is payable on the entire commitment amount without 
regard to the dates or amounts of actual disbursement:
    1. Estimated interest--Assume that the entire commitment amount is 
outstanding at the contract interest rate for the entire construction 
period.
    2. Estimated annual percentage rate--Assume a single payment loan 
that matures at the end of the construction period. The finance charge 
is the sum of the estimated interest and any prepaid finance charge. The 
amount financed for computation purposes is determined by subtracting 
any prepaid finance charge from one-half of the commitment amount.
    3. Repayment schedule--Interest payments shall be disclosed in 
making the repayment schedule disclosure under Sec. 226.18(g).

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    Appendix E--Rules For Card Issuers That Bill on a Transaction-By-
                            Transaction Basis

    The following provisions of Subpart B apply if credit cards are 
issued and (1) the card issuer and the seller are the same or related 
persons; (2) no finance charge is imposed; (3) consumers are billed in 
full for each use of the card on a transaction-by-transaction basis, by 
means of an invoice or other statement reflecting each use of the card; 
and (4) no cumulative account is maintained which reflects the 
transactions by each consumer during a period of time, such as a month:
    Section 226.6(d), and, as applicable, Sec. 226.6(b) and (c). The 
disclosure required by Sec. 226.6(b) shall be limited to those charges 
that are or may be imposed as a result of the deferral of payment by use 
of the card, such as late payment or delinquency charges.
    Section 226.7(b) and Sec. 226.7(k). Creditors may comply by placing 
the required disclosures on the invoice or statement sent to the 
consumer for each transaction.
    Section 226.9(a). Creditors may comply by mailing or delivering the 
statement required by Sec. 226.6(d) (See appendix G-3) to each consumer 
receiving a transaction invoice during a one-month period chosen by the 
card issuer or by sending either the statement prescribed by 
Sec. 226.6(d) or an alternative billing error rights statement 
substantially similar to that in appendix G-4, with each invoice sent to 
a consumer.
    Section 226.9(c).
    Section 226.10.
    Section 226.11. This section applies when a card issuer receives a 
payment or other credit that exceeds by more than $1 the amount due, as 
shown on the transaction invoice. The requirement to credit amounts to 
an account may be complied with by other reasonable means, such as by a 
credit memorandum. Since no periodic statement is provided, a notice of 
the credit balance shall be sent to the consumer within a reasonable 
period of time following its occurrence unless a refund of the credit 
balance is mailed or delivered to the consumer within 7 business days of 
its receipt by the card issuer.
    Section 226.12 including Sec. 226.12(c) and (d), as applicable. 
Section 226.12(e) is inapplicable.
    Section 226.13, as applicable. All references to periodic statement 
shall be read to indicate the invoice or other statement for the 
relevant transaction. All actions with regard to correcting and 
adjusting a consumer's account may be taken by issuing a refund or a new 
invoice, or by other appropriate means consistent with the purposes of 
the section.
    Section 226.15, as applicable.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 46 FR 60190, Dec. 9, 
1981]

  Appendix F--Annual Percentage Rate Computations for Certain Open-End 
                              Credit Plans

    In determining the denominator of the fraction under 
Sec. 226.14(c)(3), no amount will be used more than once when adding the 
sum of the balances 1 subject to periodic rates to the sum of the 
amounts subject to specific transaction charges. In every case, the full 
amount of transactions subject to specific transaction charges shall be 
included in the denominator. Other balances or parts of balances shall 
be included according to the manner of determining the balance subject 
to a periodic rate, as illustrated in the following examples of accounts 
on monthly billing cycles:
---------------------------------------------------------------------------

    1 Where a portion of the finance charge is determined by 
application of one or more daily periodic rates, the phrase sum of the 
balances shall also mean the average of daily balances.
---------------------------------------------------------------------------

    1. Previous balance--none.
    A specific transaction of $100 occurs on the first day of the 
billing cycle. The average daily balance is $100. A specific transaction 
charge of 3% is applicable to the specific transaction. The periodic 
rate is 1\1/2\% applicable to the average daily balance. The numerator 
is the amount of the finance charge, which is $4.50. The denominator is 
the amount of the transaction (which is $100), plus the amount by which 
the balance subject to the periodic rate exceeds the amount of the 
specific transactions (such excess in this case is 0), totaling $100.
    The annual percentage rate is the quotient (which is 4\1/2\%) 
multiplied by 12 (the number of months in a year), i.e., 54%.
    2. Previous balance--$100.
    A specific transaction of $100 occurs at the midpoint of the billing 
cycle. The average daily balance is $150. A specific transaction charge 
of 3% is applicable to the specific transaction. The periodic rate is 
1\1/2\% applicable to the average daily balance. The numerator is the 
amount of the finance charge which is $5.25. The denominator is the 
amount of the transaction (which is $100), plus the amount by which the 
balance subject to the periodic rate exceeds the amount of the specific 
transaction (such excess in this case is $50), totaling $150. As 
explained in example 1, the annual percentage rate is 3\1/2\%  x  
12=42%.
    3. If, in example 2, the periodic rate applies only to the previous 
balance, the numerator is $4.50 and the denominator is $200 (the amount 
of the transaction, $100, plus the balance subject only to the periodic 
rate, the $100 previous balance). As explained in example 1, the annual 
percentage rate is 2\1/4\%  x  12=27%.

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    4. If, in example 2, the periodic rate applies only to an adjusted 
balance (previous balance less payments and credits) and the consumer 
made a payment of $50 at the midpoint of the billing cycle, the 
numerator is $3.75 and the denominator is $150 (the amount of the 
transaction, $100, plus the balance subject to the periodic rate, the 
$50 adjusted balance). As explained in example 1, the annual percentage 
rate is 2\1/2\%  x  12=30%.
    5. Previous balance--$100.
    A specific transaction (check) of $100 occurs at the midpoint of the 
billing cycle. The average daily balance is $150. The specific 
transaction charge is $.25 per check. The periodic rate is 1\1/2\% 
applied to the average daily balance. The numerator is the amount of the 
finance charge, which is $2.50 and includes the $.25 check charge and 
the $2.25 resulting from the application of the periodic rate. The 
denominator is the full amount of the specific transaction (which is 
$100) plus the amount by which the average daily balance exceeds the 
amount of the specific transaction (which in this case is $50), totaling 
$150. As explained in example 1, the annual percentage rate would be 
1\2/3\%  x  12=20%.
    6. Previous balance--none.
    A specific transaction of $100 occurs at the midpoint of the billing 
cycle. The average daily balance is $50. The specific transaction charge 
is 3% of the transaction amount or $3.00. The periodic rate is 1\1/2\% 
per month applied to the average daily balance. The numerator is the 
amount of the finance charge, which is $3.75, including the $3.00 
transaction charge and $.75 resulting from application of the periodic 
rate. The denominator is the full amount of the specific transaction 
($100) plus the amount by which the balance subject to the periodic rate 
exceeds the amount of the transaction ($0). Where the specific 
transaction amount exceeds the balance subject to the periodic rate, the 
resulting number is considered to be zero rather than a negative number 
($50-$100=-$50). The denominator, in this case, is $100. As explained in 
example 1, the annual percentage rate is 3\3/4\%  x  12=45%.

              Appendix G--Open-End Model Forms and Clauses

G-1  Balance Computation Methods Model Clauses (Secs. 226.6 and 226.7).
G-2  Liability for Unauthorized Use Model Clause (Sec. 226.12).
G-3  Long Form Billing Error Rights Model Form (Secs. 226.6 and 226.9).
G-4  Alternative Billing Error Rights Model Form (Sec. 226.9).
G-5  Rescission Model Form (when opening an account) (Sec. 226.15).
G-6  Rescission Model Form (for each transaction) (Sec. 226.15).
G-7  Rescission Model Form (when increasing the credit limit) 
          (Sec. 226.15).
G-8  Rescission Model Form (when adding a security interest) 
          (Sec. 226.15).
G-9  Rescission Model Form (when increasing the security) (Sec. 226.15).
G-10(a)-(B)  Applications and Solicitations Model Forms (Credit Cards) 
          (Sec. 226.5a(b)).
G-10(C)  Applications and Solicitations Model Form (Charge Cards) 
          (Sec. 226.5a(b)).
G-11  Applications and Solicitations Made Available to General Public 
          Model Clauses (Sec. 226.5a(e)).
G-12  Charge Card Model Clause (When Access to Plan Offered by Another) 
          (Sec. 226.5a(f)).
G-13(A)  Change in Insurance Provider Model Form (Combined Notice) 
          (Sec. 226.9(f)).
G-13(B)  Change in Insurance Provider Model Form (Sec. 226.9(f)(2)).
G-14A  Home Equity Sample.
G-14B  Home Equity Sample.
G-15  Home Equity Model Clauses.

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[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 46 FR 60191, Dec. 9, 
1981; 54 FR 13868, Apr. 6, 1989; 54 FR 24689, June 9, 1989; 55 FR 38312, 
Sept. 18, 1990]

[[Page 258]]



       Appendix H to Part 226--Closed End Model Forms and Clauses

H-1--Credit Sale Model Form (Sec. 226.18)
H-2--Loan Model Form (Sec. 226.18)
H-3--Amount Financed Itemization Model Form (Sec. 226.18(c))
H-4(A)--Variable-Rate Model Clauses (Sec. 226.18(f)(1))
H-4(B)--Variable-Rate Model Clauses (Sec. 226.18(f)(2))
H-4(C)--Variable-Rate Model Clauses (Sec. 226.19(b))
H-4(D)--Variable-Rate Model Clauses (Sec. 226.20(c))
H-5--Demand Feature Model Clauses (Sec. 226.18(I))
H-6--Assumption Policy Model Clause (Sec. 226.18(q))
H-7--Required Deposit Model Clause (Sec. 226.18(r))
H-8--Rescission Model Form (General) (Sec. 226.23)
H-9--Rescission Model Form (Refinancing With Original Creditor) 
    (Sec. 226.23)
H-10--Credit Sale Sample
H-11--Installment Loan Sample
H-12--Refinancing Sample
H-13--Mortgage with Demand Feature Sample
H-14--Variable-Rate Mortgage Sample (Sec. 226.19(b))
H-15--Graduated Payment Mortgage Sample
H-16--Mortgage Sample (Sec. 226.32)

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     H-9--Rescission Model Form (Refinancing with Original Creditor)

                        NOTICE OF RIGHT TO CANCEL

                          Your Right to Cancel

    You are entering into a new transaction to increase the amount of 
credit previously provided to you. Your home is the security for this 
new transaction. You have a legal right under federal law to cancel this 
new transaction, without cost, within three business days from whichever 
of the following events occurs last:
    (1) the date of this new transaction, which is ________________; or
    (2) the date you received your new Truth in Lending disclosures; or
    (3) the date you received this notice of your right to cancel.
    If you cancel this new transaction, it will not affect any amount 
that you presently owe. Your home is the security for that amount. 
Within 20 calendar days after we receive your notice of cancellation of 
this new transaction, we must take the steps necessary to reflect the 
fact that your home does not secure the increase of credit. We must also 
return any money you have given to us or anyone else in connection with 
this new transaction.
    You may keep any money we have given you in this new transaction 
until we have done the things mentioned above, but you must then offer 
to return the money at the address below.
    If we do not take possession of the money within 20 calendar days of 
your offer, you may keep it without further obligation.

                              How To Cancel

    If you decide to cancel this new transaction, you may do so by 
notifying us in writing, at

_______________________________________________________________________
(Creditor's name and business address).

    You may use any written statement that is signed and dated by you 
and states your intention to cancel, or you may use this notice by 
dating and signing below. Keep one copy of this notice because it 
contains important information about your rights.
    If you cancel by mail or telegram, you must send the notice no later 
than midnight of

_______________________________________________________________________

(Date)__________________________________________________________________

(or midnight of the third business day following the latest of the three 
events listed above).
    If you send or deliver your written notice to cancel some other way, 
it must be delivered to the above address no later than that time.

I WISH TO CANCEL

_______________________________________________________________________

Consumer's Signature
_______________________________________________________________________

Date

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[46 FR 20892, Apr. 7, 1981, as amended at 46 FR 29246, June 1, 1981; 52 
FR 52 FR 48671, Dec. 24, 1987; 53 FR 467, Jan. 7, 1988; Reg. Z, 60 FR 
15473, Mar. 24, 1995; 61 FR 49247, Sept. 19, 1996]

[[Page 276]]



                Appendix I--Federal Enforcement Agencies

    The following list indicates which federal agency enforces 
Regulation Z for particular classes of businesses. Any questions 
concerning compliance by a particular business should be directed to the 
appropriate enforcement agency. Terms that are not defined in the 
Federal Deposit Insurance Act (12 U.S.C. 1813(s)) shall have the meaning 
given to them in the International Banking Act of 1978 (12 U.S.C. 3101).

  National banks and federal branches and federal agencies of foreign 
                                  banks

    District office of the Office of the Comptroller of the Currency for 
the district in which the institution is located.

 State member banks, branches and agencies of foreign banks (other than 
   federal branches, federal agencies, and insured state branches of 
  foreign banks), commercial lending companies owned or controlled by 
 foreign banks, and organizations operating under section 25 or 25A of 
                         the Federal Reserve Act

    Federal Reserve Bank serving the district in which the institution 
is located.

  Non-member insured banks and insured state branches of foreign banks

    Federal Deposit Insurance Corporation Regional director for the 
region in which the institution is located.

  Savings institutions insured under the Savings Association Insurance 
Fund of the FDIC and federally chartered savings banks insured under the 
   Bank Insurance Fund of the FDIC (but not including state-chartered 
          savings banks insured under the Bank Insurance Fund).

    Office of Thrift Supervision Regional Director for the region in 
which the institution is located.

                          Federal Credit Unions

    Regional office of the National Credit Union Administration serving 
the area in which the Federal credit union is located.

                              Air Carriers

    Assistant General Counsel for Aviation Enforcement and Proceedings, 
Department of Transportation, 400 Seventh Street, SW., Washington, DC 
20590.

             Creditors Subject to Packers and Stockyards Act

    Nearest Packers and Stockyards Administration area supervisor.

Federal Land Banks, Federal Land Bank Associations, Federal Intermediate 
            Credit Banks and Production Credit Associations.

    Farm Credit Administration, 490 L'Enfant Plaza, SW., Washington, DC 
20578.

    Retail, Department Stores, Consumer Finance Companies, All Other 
Creditors, and All Nonbank Credit Card Issuers (Creditors operating on a 
   local or regional basis should use the address of the FTC Regional 
                     Office in which they operate.)

    Division of Credit Practices, Bureau of Consumer Protection, Federal 
Trade Commission, Washington, DC 20580.

[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 50 FR 8708, Mar. 5, 
1985; 54 FR 53539, Dec. 29, 1989; 56 FR 51322, Oct. 11, 1991; 57 FR 
20400, May 13, 1992]

 Appendix J--Annual Percentage Rate Computations for Closed-End Credit 
                              Transactions

                            (a) Introduction

    (1) Section 226.22(a) of Regulation Z provides that the annual 
percentage rate for other than open end credit transactions shall be 
determined in accordance with either the actuarial method or the United 
States Rule method. This appendix contains an explanation of the 
actuarial method as well as equations, instructions and examples of how 
this method applies to single advance and multiple advance transactions.
    (2) Under the actuarial method, at the end of each unit-period (or 
fractional unit-period) the unpaid balance of the amount financed is 
increased by the finance charge earned during that period and is 
decreased by the total payment (if any) made at the end of that period. 
The determination of unit-periods and fractional unit-periods shall be 
consistent with the definitions and rules in paragraphs (b) (3), (4) and 
(5) of this section and the general equation in paragraph (b)(8) of this 
section.
    (3) In contrast, under the United States Rule method, at the end of 
each payment period, the unpaid balance of the amount financed is 
increased by the finance charge earned during that payment period and is 
decreased by the payment made at the end of that payment period. If the 
payment is less than the finance charge earned, the adjustment of the 
unpaid balance of the amount financed is postponed until the end of the 
next payment period. If at that time the sum of the two payments is 
still less than the total earned finance charge for the two payment 
periods, the adjustment of the unpaid balance of the amount financed is 
postponed still another payment period, and so forth.

[[Page 277]]

         (b) Instructions and Equations for the Actuarial Method

                            (1) General Rule

    The annual percentage rate shall be the nominal annual percentage 
rate determined by multiplying the unit-period rate by the number of 
unit-periods in a year.

                       (2) Term of the Transaction

    The term of the transaction begins on the date of its consummation, 
except that if the finance charge or any portion of it is earned 
beginning on a later date, the term begins on the later date. The term 
ends on the date the last payment is due, except that if an advance is 
scheduled after that date, the term ends on the later date. For 
computation purposes, the length of the term shall be equal to the time 
interval between any point in time on the beginning date to the same 
point in time on the ending date.

                    (3) Definitions of Time Intervals

    (i) A period is the interval of time between advances or between 
payments and includes the interval of time between the date the finance 
charge begins to be earned and the date of the first advance thereafter 
or the date of the first payment thereafter, as applicable.
    (ii) A common period is any period that occurs more than once in a 
transaction.
    (iii) A standard interval of time is a day, week, semimonth, month, 
or a multiple of a week or a month up to, but not exceeding, 1 year.
    (iv) All months shall be considered equal. Full months shall be 
measured from any point in time on a given date of a given month to the 
same point in time on the same date of another month. If a series of 
payments (or advances) is scheduled for the last day of each month, 
months shall be measured from the last day of the given month to the 
last day of another month. If payments (or advances) are scheduled for 
the 29th or 30th of each month, the last day of February shall be used 
when applicable.

                             (4) Unit-period

    (i) In all transactions other than a single advance, single payment 
transaction, the unit-period shall be that common period, not to exceed 
1 year, that occurs most frequently in the transaction, except that
    (A) If 2 or more common periods occur with equal frequency, the 
smaller of such common periods shall be the unit-period; or
    (B) If there is no common period in the transaction, the unit-period 
shall be that period which is the average of all periods rounded to the 
nearest whole standard interval of time. If the average is equally near 
2 standard intervals of time, the lower shall be the unit-period.
    (ii) In a single advance, single payment transaction, the unit-
period shall be the term of the transaction, but shall not exceed 1 
year.

            (5) Number of Unit-periods Between 2 Given Dates

    (i) The number of days between 2 dates shall be the number of 24-
hour intervals between any point in time on the first date to the same 
point in time on the second date.
    (ii) If the unit-period is a month, the number of full unit-periods 
between 2 dates shall be the number of months measured back from the 
later date. The remaining fraction of a unit-period shall be the number 
of days measured forward from the earlier date to the beginning of the 
first full unit-period, divided by 30. If the unit-period is a month, 
there are 12 unit-periods per year.
    (iii) If the unit-period is a semimonth or a multiple of a month not 
exceeding 11 months, the number of days between 2 dates shall be 30 
times the number of full months measured back from the later date, plus 
the number of remaining days. The number of full unit-periods and the 
remaining fraction of a unit-period shall be determined by dividing such 
number of days by 15 in the case of a semimonthly unit-period or by the 
appropriate multiple of 30 in the case of a multimonthly unit-period. If 
the unit-period is a semimonth, the number of unit-periods per year 
shall be 24. If the number of unit-periods is a multiple of a month, the 
number of unit-periods per year shall be 12 divided by the number of 
months per unit-period.
    (iv) If the unit-period is a day, a week, or a multiple of a week, 
the number of full unit-periods and the remaining fractions of a unit-
period shall be determined by dividing the number of days between the 2 
given dates by the number of days per unit-period. If the unit-period is 
a day, the number of unit-periods per year shall be 365. If the unit-
period is a week or a multiple of a week, the number of unit-periods per 
year shall be 52 divided by the number of weeks per unit-period.
    (v) If the unit-period is a year, the number of full unit-periods 
between 2 dates shall be the number of full years (each equal to 12 
months) measured back from the later date. The remaining fraction of a 
unit-period shall be
    (A) The remaining number of months divided by 12 if the remaining 
interval is equal to a whole number of months, or
    (B) The remaining number of days divided by 365 if the remaining 
interval is not equal to a whole number of months.
    (vi) In a single advance, single payment transaction in which the 
term is less than a year and is equal to a whole number of months, the 
number of unit-periods in the

[[Page 278]]

term shall be 1, and the number of unit-periods per year shall be 12 
divided by the number of months in the term or 365 divided by the number 
of days in the term.
    (vii) In a single advance, single payment transaction in which the 
term is less than a year and is not equal to a whole number of months, 
the number of unit-periods in the term shall be 1, and the number of 
unit-periods per year shall be 365 divided by the number of days in the 
term.

           (6) Percentage Rate for a Fraction of a Unit-period

    The percentage rate of finance charge for a fraction (less than 1) 
of a unit-period shall be equal to such fraction multiplied by the 
percentage rate of finance charge per unit-period.

[[Page 279]]

[GRAPHIC] [TIFF OMITTED] TC27SE91.038



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[GRAPHIC] [TIFF OMITTED] TC27SE91.039



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[GRAPHIC] [TIFF OMITTED] TC27SE91.040



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[GRAPHIC] [TIFF OMITTED] TC27SE91.041



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[GRAPHIC] [TIFF OMITTED] TC27SE91.042



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[GRAPHIC] [TIFF OMITTED] TC27SE91.043



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[GRAPHIC] [TIFF OMITTED] TC27SE91.044



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[GRAPHIC] [TIFF OMITTED] TC27SE91.045



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[GRAPHIC] [TIFF OMITTED] TC27SE91.046



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[GRAPHIC] [TIFF OMITTED] TC27SE91.047



[Reg. Z, 46 FR 20892, Apr. 7, 1981, as amended at 46 FR 29246, June 1, 
1981]

[[Page 289]]



  Appendix K to Part 226--Total Annual Loan Cost Rate Computations for 
                      Reverse Mortgage Transactions

    (a) Introduction. Creditors are required to disclose a series of 
total annual loan cost rates for each reverse mortgage transaction. This 
appendix contains the equations creditors must use in computing the 
total annual loan cost rate for various transactions, as well as 
instructions, explanations, and examples for various transactions. This 
appendix is modeled after Appendix J of this part (Annual Percentage 
Rates Computations for Closed-end Credit Transactions); creditors should 
consult Appendix J of this part for additional guidance in using the 
formulas for reverse mortgages.
    (b) Instructions and equations for the total annual loan cost rate.
    (1) General rule. The total annual loan cost rate shall be the 
nominal total annual loan cost rate determined by multiplying the unit-
period rate by the number of unit-periods in a year.
    (2) Term of the transaction. For purposes of total annual loan cost 
disclosures, the term of a reverse mortgage transaction is assumed to 
begin on the first of the month in which consummation is expected to 
occur. If a loan cost or any portion of a loan cost is initially 
incurred beginning on a date later than consummation, the term of the 
transaction is assumed to begin on the first of the month in which that 
loan cost is incurred. For purposes of total annual loan cost 
disclosures, the term ends on each of the assumed loan periods specified 
in Sec. 226.33(c)(6).
    (3) Definitions of time intervals.
    (i) A period is the interval of time between advances.
    (ii) A common period is any period that occurs more than once in a 
transaction.
    (iii) A standard interval of time is a day, week, semimonth, month, 
or a multiple of a week or a month up to, but not exceeding, 1 year.
    (iv) All months shall be considered to have an equal number of days.
    (4) Unit-period.
    (i) In all transactions other than single-advance, single-payment 
transactions, the unit-period shall be that common period, not to exceed 
one year, that occurs most frequently in the transaction, except that:
    (A) If two or more common periods occur with equal frequency, the 
smaller of such common periods shall be the unit-period; or
    (B) If there is no common period in the transaction, the unit-period 
shall be that period which is the average of all periods rounded to the 
nearest whole standard interval of time. If the average is equally near 
two standard intervals of time, the lower shall be the unit-period.
    (ii) In a single-advance, single-payment transaction, the unit-
period shall be the term of the transaction, but shall not exceed one 
year.
    (5) Number of unit-periods between two given dates.
    (i) The number of days between two dates shall be the number of 24-
hour intervals between any point in time on the first date to the same 
point in time on the second date.
    (ii) If the unit-period is a month, the number of full unit-periods 
between two dates shall be the number of months. If the unit-period is a 
month, the number of unit-periods per year shall be 12.
    (iii) If the unit-period is a semimonth or a multiple of a month not 
exceeding 11 months, the number of days between two dates shall be 30 
times the number of full months. The number of full unit-periods shall 
be determined by dividing the number of days by 15 in the case of a 
semimonthly unit-period or by the appropriate multiple of 30 in the case 
of a multimonthly unit-period. If the unit-period is a semimonth, the 
number of unit-periods per year shall be 24. If the number of unit-
periods is a multiple of a month, the number of unit-periods per year 
shall be 12 divided by the number of months per unit-period.
    (iv) If the unit-period is a day, a week, or a multiple of a week, 
the number of full unit-periods shall be determined by dividing the 
number of days between the two given dates by the number of days per 
unit-period. If the unit-period is a day, the number of unit-periods per 
year shall be 365. If the unit-period is a week or a multiple of a week, 
the number of unit-periods per year shall be 52 divided by the number of 
weeks per unit-period.
    (v) If the unit-period is a year, the number of full unit-periods 
between two dates shall be the number of full years (each equal to 12 
months).
    (6) Symbols. The symbols used to express the terms of a transaction 
in the equation set forth in paragraph (b)(8) of this appendix are 
defined as follows:

Aj=The amount of each periodic or lump-sum advance to the consumer 
          under the reverse mortgage transaction.
i=Percentage rate of the total annual loan cost per unit-period, 
          expressed as a decimal equivalent.
j=The number of unit-periods until the jth advance.
n=The number of unit-periods between consummation and repayment of the 
          debt.
Pn=Min (Baln, Valn). This is the maximum amount that the 
          creditor can be repaid at the specified loan term.

[[Page 290]]

Baln=Loan balance at time of repayment, including all costs and 
          fees incurred by the consumer (including any shared 
          appreciation or shared equity amount) compounded to time n at 
          the creditor's contract rate of interest.
Valn=Val0 (1 + )y, where Val0 is the 
          property value at consummation,  is the assumed 
          annual rate of appreciation for the dwelling, and y is the 
          number of years in the assumed term. Valn must be reduced 
          by the amount of any equity reserved for the consumer by 
          agreement between the parties, or by 7 percent (or the amount 
          or percentage specified in the credit agreement), if the 
          amount required to be repaid is limited to the net proceeds of 
          sale.
=The summation operator.
    Symbols used in the examples shown in this appendix are defined as 
follows:
[GRAPHIC] [TIFF OMITTED] TR24MR95.015

[GRAPHIC] [TIFF OMITTED] TR24MR95.007

w=The number of unit-periods per year.
I=wi  x 100=the nominal total annual loan cost rate.

    (7) General equation. The total annual loan cost rate for a reverse 
mortgage transaction must be determined by first solving the following 
formula, which sets forth the relationship between the advances to the 
consumer and the amount owed to the creditor under the terms of the 
reverse mortgage agreement for the loan cost rate per unit-period (the 
loan cost rate per unit-period is then multiplied by the number of unit-
periods per year to obtain the total annual loan cost rate I; that is, I 
= wi):
[GRAPHIC] [TIFF OMITTED] TR24MR95.008

    (8) Solution of general equation by iteration process. (i) The 
general equation in paragraph (b)(7) of this appendix, when applied to a 
simple transaction for a reverse mortgage loan of equal monthly advances 
of $350 each, and with a total amount owed of $14,313.08 at an assumed 
repayment period of two years, takes the special form:
[GRAPHIC] [TIFF OMITTED] TR24MR95.009

Using the iteration procedures found in steps 1 through 4 of (b)(9)(i) 
of Appendix J of this part, the total annual loan cost rate, correct to 
two decimals, is 48.53%.
    (ii) In using these iteration procedures, it is expected that 
calculators or computers will be programmed to carry all available 
decimals throughout the calculation and that enough iterations will be 
performed to make virtually certain that the total annual loan cost rate 
obtained, when rounded to two decimals, is correct. Total annual loan 
cost rates in the examples below were obtained by using a 10-digit 
programmable calculator and the iteration procedure described in 
Appendix J of this part.
    (9) Assumption for discretionary cash advances. If the consumer 
controls the timing of advances made after consummation (such as in a 
credit line arrangement), the creditor must use the general formula in 
paragraph (b)(7) of this appendix. The total annual loan cost rate shall 
be based on the assumption that 50 percent of the principal loan amount 
is advanced at closing, or in the case of an open-end transaction, at 
the time the consumer becomes obligated under the plan. Creditors shall 
assume the advances are made at the interest rate then in effect and 
that no further advances are made to, or repayments made by, the 
consumer during the term of the transaction or plan.
    (10) Assumption for variable-rate reverse mortgage transactions. If 
the interest rate for a reverse mortgage transaction may increase during 
the loan term and the amount or timing is not known at consummation, 
creditors shall base the disclosures on the initial interest rate in 
effect at the time the disclosures are provided.
    (11) Assumption for closing costs. In calculating the total annual 
loan cost rate, creditors shall assume all closing and other consumer 
costs are financed by the creditor.
    (c) Examples of total annual loan cost rate computations.
    (1) Lump-sum advance at consummation.

Lump-sum advance to consumer at consummation: $30,000
Total of consumer's loan costs financed at consummation: $4,500
Contract interest rate: 11.60%
Estimated time of repayment (based on life expectancy of a consumer at 
          age 78): 10 years
Appraised value of dwelling at consummation: $100,000
Assumed annual dwelling appreciation rate: 4%
P10 = Min (103,385.84, 137,662.72)

[[Page 291]]

[GRAPHIC] [TIFF OMITTED] TR29SE95.004


i = .1317069438
Total annual loan cost rate (100(.1317069438  x  1)) = 13.17%

    (2) Monthly advance beginning at consummation.

Monthly advance to consumer, beginning at consummation: $492.51
Total of consumer's loan costs financed at consummation: $4,500
Contract interest rate: 9.00%
Estimated time of repayment (based on life expectancy of a consumer at 
          age 78): 10 years
Appraised value of dwelling at consummation: $100,000
Assumed annual dwelling appreciation rate: 8%
[GRAPHIC] [TIFF OMITTED] TR24MR95.011

Total annual loan cost rate (100(.009061140 x 12))=10.87%
    (3) Lump sum advance at consummation and monthly advances 
thereafter.
Lump sum advance to consumer at consummation: $10,000
Monthly advance to consumer, beginning at consummation: $725
Total of consumer's loan costs financed at consummation: $4,500
Contract rate of interest: 8.5%
Estimated time of repayment (based on life expectancy of a consumer at 
          age 75): 12 years
Appraised value of dwelling at consummation: $100,000
Assumed annual dwelling appreciation rate: 8%
[GRAPHIC] [TIFF OMITTED] TR24MR95.012

Total annual loan cost rate (100(.007708844 x 12)) = 9.25%

    (d) Reverse mortgage model form and sample form.
    (1) Model form.

                       Total Annual Loan Cost Rate

                               Loan Terms

Age of youngest borrower:
Appraised property value:
Interest rate:
Monthly advance:
Initial draw:
Line of credit:

                          Initial Loan Charges

Closing costs:
Mortgage insurance premium:
Annuity cost:

                          Monthly Loan Charges

Servicing fee:

[[Page 292]]

                             Other Charges:

Mortgage insurance:
Shared Appreciation:

                            Repayment Limits

----------------------------------------------------------------------------------------------------------------
                                                                          Total annual loan cost rate           
                                                             ---------------------------------------------------
                 Assumed annual appreciation                  2-year loan   [  ]-year    [  ]-year    [  ]-year 
                                                                  term      loan term]   loan term    loan term 
----------------------------------------------------------------------------------------------------------------
0%..........................................................                      [  ]                          
4%..........................................................                      [  ]                          
8%..........................................................                      [  ]                          
----------------------------------------------------------------------------------------------------------------

    The cost of any reverse mortgage loan depends on how long you keep 
the loan and how much your house appreciates in value. Generally, the 
longer you keep a reverse mortgage, the lower the total annual loan cost 
rate will be.
    This table shows the estimated cost of your reverse mortgage loan, 
expressed as an annual rate. It illustrates the cost for three [four] 
loan terms: 2 years, [half of life expectancy for someone your age,] 
that life expectancy, and 1.4 times that life expectancy. The table also 
shows the cost of the loan, assuming the value of your home appreciates 
at three different rates: 0%, 4% and 8%.
    The total annual loan cost rates in this table are based on the 
total charges associated with this loan. These charges typically include 
principal, interest, closing costs, mortgage insurance premiums, annuity 
costs, and servicing costs (but not costs when you sell the home).
    The rates in this table are estimates. Your actual cost may differ 
if, for example, the amount of your loan advances varies or the interest 
rate on your mortgage changes.

 Signing an Application or Receiving These Disclosures Does Not Require 
                        You To Complete This Loan

    (2) Sample Form.

                       Total Annual Loan Cost Rate

                               Loan Terms

Age of youngest borrower: 75
Appraised property value: $100,000
Interest rate: 9%
Monthly advance: $301.80
Initial draw: $1,000
Line of credit: $4,000

                          Initial Loan Charges

Closing costs: $5,000
Mortgage insurance premium: None
Annuity cost: None

                          Monthly Loan Charges

Servicing fee: None

                              Other Charges

Mortgage insurance: None
Shared Appreciation: None

                            Repayment Limits

Net proceeds estimated at 93% of projected home sale

----------------------------------------------------------------------------------------------------------------
                                                                          Total annual loan cost rate           
                                                             ---------------------------------------------------
                 Assumed annual appreciation                  2-year loan    [6-year      12-year      17-year  
                                                                  term      loan term]   loan term    loan term 
----------------------------------------------------------------------------------------------------------------
0%..........................................................       39.00%     [14.94%]        9.86%        3.87%
4%..........................................................       39.00%     [14.94%]       11.03%       10.14%
8%..........................................................       39.00%     [14.94%]       11.03%       10.20%
----------------------------------------------------------------------------------------------------------------

    The cost of any reverse mortgage loan depends on how long you keep 
the loan and how much your house appreciates in value. Generally, the 
longer you keep a reverse mortgage, the lower the total annual loan cost 
rate will be.
    This table shows the estimated cost of your reverse mortgage loan, 
expressed as an annual rate. It illustrates the cost for three [four] 
loan terms: 2 years, [half of life expectancy for someone your age,] 
that life expectancy, and 1.4 times that life expectancy. The table also 
shows the cost of the loan, assuming the value of your home appreciates 
at three different rates: 0%,4% and 8%.
    The total annual loan cost rates in this table are based on the 
total charges associated with this loan. These charges typically include 
principal, interest, closing costs, mortgage insurance premiums, annuity 
costs, and servicing costs (but not disposition costs--costs when you 
sell the home).
    The rates in this table are estimates. Your actual cost may differ 
if, for example, the

[[Page 293]]

amount of your loan advances varies or the interest rate on your 
mortgage changes.

 Signing an Application or Receiving These Disclosures Does Not Require 
                        You To Complete This Loan

[Reg. Z, 60 FR 15474, Mar. 24, 1995, as amended at 60 FR 50400, Sept. 
29, 1995]

 Appendix L to Part 226--Assumed Loan Periods for Computations of Total 
                         Annual Loan Cost Rates

    (a) Required tables. In calculating the total annual loan cost rates 
in accordance with Appendix K of this part, creditors shall assume three 
loan periods, as determined by the following table.
    (b) Loan periods.
    (1) Loan Period 1 is a two-year loan period.
    (2) Loan Period 2 is the life expectancy in years of the youngest 
borrower to become obligated on the reverse mortgage loan, as shown in 
the U.S. Decennial Life Tables for 1979-1981 for females, rounded to the 
nearest whole year.
    (3) Loan Period 3 is the life expectancy figure in Loan Period 3, 
multiplied by 1.4 and rounded to the nearest full year (life expectancy 
figures at .5 have been rounded up to 1).
    (4) At the creditor's option, an additional period may be included, 
which is the life expectancy figure in Loan Period 2, multiplied by .5 
and rounded to the nearest full year (life expectancy figures at .5 have 
been rounded up to 1).

----------------------------------------------------------------------------------------------------------------
                                                                                        Loan period             
                                                              Loan period   [Optional     2 (life    Loan period
                  Age of youngest borrower                       1 (in     loan period  expectancy)     3 (in   
                                                                 years)    (in years)]   (in years)     years)  
----------------------------------------------------------------------------------------------------------------
62..........................................................            2         [11]           21           29
63..........................................................            2         [10]           20           28
64..........................................................            2         [10]           19           27
65..........................................................            2          [9]           18           25
66..........................................................            2          [9]           18           25
67..........................................................            2          [9]           17           24
68..........................................................            2          [8]           16           22
69..........................................................            2          [8]           16           22
70..........................................................            2          [8]           15           21
71..........................................................            2          [7]           14           20
72..........................................................            2          [7]           13           18
73..........................................................            2          [7]           13           18
74..........................................................            2          [6]           12           17
75..........................................................            2          [6]           12           17
76..........................................................            2          [6]           11           15
77..........................................................            2          [5]           10           14
78..........................................................            2          [5]           10           14
79..........................................................            2          [5]            9           13
80..........................................................            2          [5]            9           13
81..........................................................            2          [4]            8           11
82..........................................................            2          [4]            8           11
83..........................................................            2          [4]            7           10
84..........................................................            2          [4]            7           10
85..........................................................            2          [3]            6            8
86..........................................................            2          [3]            6            8
87..........................................................            2          [3]            6            8
88..........................................................            2          [3]            5            7
89..........................................................            2          [3]            5            7
90..........................................................            2          [3]            5            7
91..........................................................            2          [2]            4            6
92..........................................................            2          [2]            4            6
93..........................................................            2          [2]            4            6
94..........................................................            2          [2]            4            6
95 and over.................................................            2          [2]            3            4
----------------------------------------------------------------------------------------------------------------


[60 FR 15476, Mar. 24, 1995]

              Supplement I--Official Staff Interpretations

                              Introduction

    1. Official status. This commentary is the vehicle by which the 
staff of the Division of Consumer and Community Affairs of the Federal 
Reserve Board issues official staff interpretations of Regulation Z, as 
revised effective April 1, 1981. Good faith compliance with this 
commentary affords protection from liability under 130(f) of the Truth 
in Lending Act. Section 130(f) (15 U.S.C. 1640) protects creditors from 
civil liability for any act done or omitted in good faith in conformity 
with any interpretation issued by a duly authorized official or employee 
of the Federal Reserve System.

[[Page 294]]

    2. Procedure for requesting interpretations. Under appendix C of the 
regulation, anyone may request an official staff interpretation. 
Interpretations that are adopted will be incorporated in this commentary 
following publication in the Federal Register. No official staff 
interpretations are expected to be issued other than by means of this 
commentary.
    3. Status of previous interpretations. All statements and opinions 
issued by the Federal Reserve Board and its staff interpreting previous 
Regulation Z remain effective until October 1, 1982, only insofar as 
they interpret that regulation. When compliance with revised Regulation 
Z becomes mandatory on October 1, 1982, the Board and staff 
interpretations of the previous regulation will be entirely superseded 
by the revised regulation and this commentary except with regard to 
liability under the previous regulation.
    4. Rules of construction. (a) Lists that appear in the commentary 
may be exhaustive or illustrative; the appropriate construction should 
be clear from the context. In most cases, illustrative lists are 
introduced by phrases such as ``including, but not limited to,'' ``among 
other things,'' ``for example,'' or ``such as.''
    (b) Throughout the commentary and regulation, reference to the 
regulation should be construed to refer to revised Regulation Z, unless 
the context indicates that a reference to previous Regulation Z is also 
intended.
    (c) Throughout the commentary, reference to ``this section'' or 
``this paragraph'' means the section or paragraph in the regulation that 
is the subject of the comment.
    5. Comment designations. Each comment in the commentary is 
identified by a number and the regulatory section or paragraph which it 
interprets. The comments are designated with as much specificity as 
possible according to the particular regulatory provision addressed. For 
example, some of the comments to Sec. 226.18(b) are further divided by 
paragraph, such as Comment 18(b)(1)-1 and Comment 18(b)(2)-1. In other 
cases, comments have more general application and are designated, for 
example, as Comment 18-1 or Comment 18(b)-1. This introduction may be 
cited as Comments I-1 through I-7. The appendices may be cited as 
Comments app. A-1 through app. J-2.
    6. Cross-references. The following cross-references to related 
material appear at the end of each section of the commentary:
    (a) ``Statute''--those sections of the Truth in Lending Act on which 
the regulatory provision is based (and any other relevant statutes);
    (b) ``Other sections''--other provisions in the regulation necessary 
to understand that section;
    (c) ``Previous regulation''--parallel provisions in previous 
Regulation Z; and
    (d) ``1981 changes''--a brief description of the major changes made 
by the 1981 revisions to Regulation Z.

Where appropriate a fifth category (``Other regulations'') provides 
cross-references to other regulations.
    7. Transition rules. (a) Though compliance with the revised 
regulation is not mandatory until April 1, 1982, creditors may begin 
complying as of April 1, 1981. During the intervening year, a creditor 
may convert its entire operation to the new requirements at one time, or 
it may convert to the new requirements in stages. In general, however, a 
creditor may not mix the regulatory requirements when making disclosures 
for a particular closed-end transaction or open-end account; all the 
disclosures for a single closed-end transaction (or open-end account) 
must be made in accordance with the previous regulation, or all the 
disclosures must be made in accordance with the revised regulation. As 
an exception to the general rule, the revised rescission rules and the 
revised advertising rules may be followed even if the disclosures are 
based on the previous regulation. For purposes of this regulation, the 
creditor is not required to take any particular action beyond the 
requirements of the revised regulation to indicate its conversion to the 
revised regulation.
    (b) The revised regulation may be relied on to determine if any 
disclosures are required for a particular transaction or to determine if 
a person is a creditor subject to Truth in Lending requirements, whether 
or not other operations have been converted to the revised regulation. 
For example, layaway plans are not subject to the revised regulation, 
nor are oral agreements to lend money if there is no finance charge. 
These provisions may be relied on even if the creditor is making other 
disclosures under the previous regulation. The new rules governing 
whether or not disclosures must be made for refinancings and assumptions 
are also available to a creditor that has not yet converted its 
operations to the revised regulation.
    (c) In addition to the above rules, applicable to both open-end and 
closed-end credit, the following guidelines are relevant to open-end 
credit:

     The creditor need not remake initial disclosures that were 
made under the previous regulation, even if the revised periodic 
statements contain terminology that is inconsistent with those initial 
disclosures.
     A creditor may add inserts to its old open-end forms in 
order to convert them to the revised rules until such time as the old 
forms are used up.
     No change-in-terms notice is required for changes resulting 
from the conversion to the revised regulation.

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     The previous billing rights statements are substantially 
similar to the revised billing rights statements and may continue to be 
used, except that, if the creditor has an automatic debit program, it 
must use the revised automatic debit provision.
     For those creditors wishing to use the annual billing 
rights statement, the creditor may count from the date on which it sent 
its last statement under the previous regulation in determining when to 
give the first statement under the new regulation. For example, if the 
creditor sent a semi-annual statement in June 1981, and converts to the 
new regulation in October 1981, the creditor must give the billing 
rights statement sometime in 1982, and it must not be fewer than 6 nor 
more than 18 months after the June statement.
     Section 226.11 of the revised regulation affects only 
credit balances that are created on or after the date the creditor 
converts the account to the revised regulation.

                           Subpart A--General

 Section 226.1--Authority, Purpose, Coverage, Organization, Enforcement 
                              and Liability

    1(c) Coverage.
    1. Foreign applicability. Regulation Z applies to all persons 
(including branches of foreign banks and sellers located in the United 
States) that extend consumer credit to residents (including resident 
aliens) of any state as defined in Sec. 226.2. If an account is located 
in the United States and credit is extended to a U.S. resident, the 
transaction is subject to the regulation. This will be the case whether 
or not a particular advance or purchase on the account takes place in 
the United States and whether or not the extender of credit is chartered 
or based in the United States or a foreign country. Thus, a U.S. 
resident's use in Europe of a credit card issued by a bank in the 
consumer's home town is covered by the regulation. The regulation does 
not apply to a foreign branch of a U.S. bank when the foreign branch 
extends credit to a U.S. citizen residing or visiting abroad or to a 
foreign national abroad.

                               References

    Statute: Section 102.
    Other sections: None.
    Previous regulation: Sec. 226.1.
    1981 changes: A discussion of coverage has been added to Sec. 226.1 
so that the reader will understand from the start what is subject to the 
regulation. Language has also been added to explain the reorganization 
of the regulation into subparts that group together the provisions 
relating to general matters, open-end credit, closed-end credit, and 
miscellaneous rules. The provisions on consumer leasing have been issued 
by the Board as a separate regulation, Regulation M (12 CFR part 213).

          Section 226.2--Definitions and Rules of Construction

    2(a) Definitions.
    2(a)(2) Advertisement.
    1. Coverage. Only commercial messages that promote consumer credit 
transactions requiring disclosures are advertisements. Messages 
inviting, offering, or otherwise announcing generally to prospective 
customers the availability of credit transactions, whether in visual, 
oral, or print media, are covered by the regulation. Examples include:

     Messages in a newspaper, magazine, leaflet, promotional 
flyer, or catalog.
     Announcements on radio, television, or public address 
system.
     Direct mail literature or other printed material on any 
exterior or interior sign.
     Point-of-sale displays.
     Telephone solicitations.
     Price tags that contain credit information.
     Letters sent to customers as part of an organized 
solicitaion of business.
     Messages on checking account statements offering auto loans 
at a stated annual percentage rate.

    The term does not include:

     Direct personal contacts, such as follow-up letters, cost 
estimates for individual consumers, or oral or written communication 
relating to the negotiation of a specific transaction.
     Informational material, for example, interest rate and loan 
term memos, distributed only to business entities.
     Notices required by federal or state law, if the law 
mandates that specific information be displayed and only the information 
so mandated is included in the notice.
     News articles the use of which is controlled by the news 
medium.
     Market research or educational material that do not solicit 
business.

    2. Persons covered. All persons must comply with the advertising 
provisions in Secs. 226.16 and 226.24, not just those that meet the 
definition of creditor in Sec. 226.2(a)(17). Thus, home builders, 
merchants, and others who are not themselves creditors must comply with 
the advertising provisions of the regulation if they advertise consumer 
credit transactions. However, under section 145 of the act, the owner 
and the personnel of the medium, in which an advertisement appears, or 
through which it is disseminated, are not subject to civil liability for 
violations.
    2(a)(3) [Reserved]
    2(a)(4) Billing cycle or cycle.
    1. Intervals. In open-end credit plans, the billing cycle determines 
the intervals for which periodic disclosure statements are required; 
these intervals are also used as measuring points for other duties of 
the creditor. Typically, billing cycles are monthly, but

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they may be more frequent or less frequent (but not less frequent than 
quarterly).
    2. Creditors that do not bill. The term cycle is interchangeable 
with billing cycle for definitional purposes, since some creditors' 
cycles do not involve the sending of bills in the traditional sense but 
only statements of account activity. This is commonly the case with 
financial institutions when periodic payments are made through payroll 
deduction or through automatic debit of the consumer's asset account.
    3. Equal cycles. Although cycles must be equal, there is a 
permissible variance to account for weekends, holidays, and differences 
in the number of days in months. If the actual date of each statement 
does not vary by more than 4 days from a fixed day (for example, the 
third Thursday of each month) or date (for example, the 15th of each 
month) that the creditor regularly uses, the intervals between 
statements are considered equal. The requirement that cycles be equal 
applies even if the creditor applies a daily periodic rate to determine 
the finance charge. The requirement that intervals be equal does not 
apply to the transitional billing cycle that can occur when the creditor 
occasionally changes its billing cycles so as to establish a new 
statement day or date. (See the commentary to Sec. 226.9(c).)
    4. Payment reminder. The sending of a regular payment reminder 
(rather than a late payment notice) establishes a cycle for which the 
creditor must send periodic statements.
    2(a)(6) Business day.
    1. Business function test. Activities that indicate that the 
creditor is open for substantially all of its business functions include 
the availability of personnel to make loan disbursements, to open new 
accounts, and to handle credit transaction inquiries. Activities that 
indicate that the creditor is not open for substantially all of its 
business functions include a retailer merely accepting credit cards for 
purchases or a bank having its customer-service windows open only for 
limited purposes such as deposits and withdrawals, bill paying, and 
related services.
    2. Rescission rule. A more precise rule for what is a business day 
(all calendar days except Sundays and the federal legal holidays listed 
in 5 U.S.C. 6103(a)) applies when the right of rescission is involved.
    2(a)(7) Card issuer.
    1. Agent. An agent of a card issuer is considered a card issuer. 
Because agency relationships are traditionally defined by contract and 
by state or other applicable law, the regulation does not define agent. 
Merely providing services relating to the production of credit cards or 
data processing for others, however, does not make one the agent of the 
card issuer. In contrast, a financial institution may become the agent 
of the card issuer if an agreement between the institution and the card 
issuer provides that the cardholder may use a line of credit with the 
financial institution to pay obligations incurred by use of the credit 
card.
    2(a)(8) Cardholder.
    1. General rule. A cardholder is a natural person at whose request a 
card is issued for consumer credit purposes or who is a co-obligor or 
guarantor for such a card issued to another. The second category does 
not include an employee who is a co-obligor or guarantor on a card 
issued to the employer for business purposes, nor does it include a 
person who is merely the authorized user of a card issued to another.
    2. Limited application of regulation. For the limited purposes of 
the rules on issuance of credit cards and liability for unauthorized 
use, a cardholder includes any person, including an organization, to 
whom a card is issued for any purpose--including a business, 
agricultural, or commercial purpose.
    3. Issuance. See the commentary to Sec. 226.12(a).
    4. Dual-purpose cards and dual-card systems. Some card issuers offer 
dual-purpose cards that are for business as well as consumer purposes. 
If a card is issued to an individual for consumer purposes, the fact 
that an organization has guaranteed to pay the debt does not make it 
business credit. On the other hand, if a card is issued for business 
purposes, the fact that an individual sometimes uses it for consumer 
purchases does not subject the card issuer to the provisions on periodic 
statements, billing error resolution, and other protections afforded to 
consumer credit. Some card issuers offer dual-card systems--that is, 
they issue two cards to the same individual, one intended for business 
use, the other for consumer or personal use. With such a system, the 
same person may be a cardholder for general purposes when using the card 
issued for consumer use, and a cardholder only for the limited purposes 
of the restrictions on issuance and liability when using the card issued 
for business purposes.
    2(a)(9) Cash price.
    1. Components. This amount is a starting point in computing the 
amount financed and the total sale price under Sec. 226.18 for credit 
sales. Any charges imposed equally in cash and credit transactions may 
be included in the cash price, or they may be treated as other amounts 
financed under Sec. 226.18(b)(2).
    2. Service contracts. Service contracts include contracts for the 
repair or the servicing of goods, such as mechanical breakdown coverage, 
even if such a contract is characterized as insurance under state law.
    3. Rebates. The creditor has complete flexibility in the way it 
treats rebates for purposes of disclosure and calculation. See the 
commentary to Sec. 226.18(b).
    2(a)(10) Closed-end credit.
    1. General. The coverage of this term is defined by exclusion. That 
is, it includes any

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credit arrangement that does not fall within the definition of open-end 
credit. Subpart C contains the disclosure rules for closed-end credit 
when the obligation is subject to a finance charge or is payable by 
written agreement in more than 4 installments.
    2(a)(11) Consumer.
    1. Scope. Guarantors, endorsers, and sureties are not generally 
consumers for purposes of the regulation, but they may be entitled to 
rescind under certain circumstances and they may have certain rights if 
they are obligated on credit card plans.
    2. Rescission rules. For purposes of rescission under Secs. 226.15 
and 226.23, a consumer includes any natural person whose ownership 
interest in his or her principal dwelling is subject to the risk of 
loss. Thus, if a security interest is taken in A's ownership interest in 
a house and that house is A's principal dwelling, A is a consumer for 
purposes of rescission, even if A is not liable, either primarily or 
secondarily, on the underlying consumer credit transaction. An ownership 
interest does not include, for example, leaseholds or inchoate rights, 
such as dower.
    3. Land trusts. Credit extended to land trusts, as described in the 
commentary to Sec. 226.3(a), is considered to be extended to a natural 
person for purposes of the definition of consumer.
    2(a)(12) Consumer credit.
    1. Primary purpose. There is no precise test for what constitutes 
credit offered or extended for personal, family, or household purposes, 
nor for what constitutes the primary purpose. See, however, the 
discussion of business purposes in the commentary to Sec. 226.3(a).
    2(a)(13) Consummation.
    1. State law governs.  When a contractual obligation on the 
consumer's part is created is a matter to be determined under applicable 
law; Regulation Z does not make this determination. A contractual 
commitment agreement, for example, that under applicable law binds the 
consumer to the credit terms would be consummation. Consummation, 
however, does not occur merely because the consumer has made some 
financial investment in the transaction (for example, by paying a 
nonrefundable fee) unless, of course, applicable law holds otherwise.
    2. Credit v. sale. Consummation does not occur when the consumer 
becomes contractually committed to a sale transaction, unless the 
consumer also becomes legally obligated to accept a particular credit 
arrangement. For example, when a consumer pays a nonrefundable deposit 
to purchase an automobile, a purchase contact may be created, but 
consummation for purposes of the regulation does not occur unless the 
consumer also contracts for financing at that time.
    2(a)(14) Credit.
    1. Exclusions. The following situations are not considered credit 
for purposes of the regulation:
     Layaway plans, unless the consumer is contractually 
obligated to continue making payments. Whether the consumer is so 
obligated is a matter to be determined under applicable law. The fact 
that the consumer is not entitled to a refund of any amounts paid 
towards the cash price of the merchandise does not bring layaways within 
the definition of credit.
     Tax liens, tax assessments, court judgments, and court 
approvals of reaffirmation of debts in bankruptcy. However, third-party 
financing of such obligations (for example, a bank loan obtained to pay 
off a tax lien) is credit for purposes of the regulation.
     Insurance premium plans that involve payment in 
installments with each installment representing the payment for 
insurance coverage for a certain future period of time, unless the 
consumer is contractually obligated to continue making payments.
     Home improvement transactions that involve progress 
payments, if the consumer pays, as the work progresses, only for work 
completed and has no contractual obligation to continue making payments.
     Borrowing against the accrued cash value of an insurance 
policy or a pension account, if there is no independent obligation to 
repay.
     Letters of credit.
     The execution of option contracts. However, there may be an 
extension of credit when the option is exercised, if there is an 
agreement at that time to defer payment of a debt.
     Investment plans in which the party extending capital to 
the consumer risks the loss of the capital advanced. This includes, for 
example, an arrangement with a home purchaser in which the investor pays 
a portion of the downpayment and of the periodic mortgage payments in 
return for an ownership interest in the property, and shares in any gain 
or loss of property value.
     Mortgage assistance plans administered by a government 
agency in which a portion of the consumer's monthly payment amount is 
paid by the agency. No finance charge is imposed on the subsidy amount 
and that amount is due in a lump-sum payment on a set date or upon the 
occurrence of certain events. (If payment is not made when due, a new 
note imposing a finance charge may be written, which may then be subject 
to the regulation.)
    2(a)(15) Credit card.
    1. Usable from time to time. A credit card must be usable from time 
to time. Since this involves the possibility of repeated use of a single 
device, checks and similar instruments that can be used only once to 
obtain a single credit extension are not credit cards.

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    2. Examples. Examples of credit cards include:
     A card that guarantees checks or similar instruments, if 
the asset account is also tied to an overdraft line or if the instrument 
directly accesses a line of credit
     A card that accesses both a credit and an asset account 
(that is, a debit-credit card)
     An identification card that permits the consumer to defer 
payment on a purchase
     An identification card indicating loan approval that is 
presented to a merchant or to a lender, whether or not the consumer 
signs a separate promissory note for each credit extension
    In contrast, credit card does not include, for example:
     A check guarantee or debit card with no credit feature or 
agreement, even if the creditor occasionally honors an inadvertent 
overdraft.
     Any card, key, plate, or other device that is used in order 
to obtain petroleum products for business purposes from a wholesale 
distribution facility or to gain access to that facility, and that is 
required to be used without regard to payment terms.
    3. Charge card. Generally, charge cards are cards used in connection 
with an account on which outstanding balances cannot be carried from one 
billing cycle to another and are payable when a periodic statement is 
received. Under the regulation, a reference to credit cards generally 
includes charge cards. The term charge card is, however, distinguished 
from credit card in Secs. 226.5a, 226.9(e), 226.9(f), and 226.28(d), and 
appendices G-10 through G-13. When the term credit card is used in those 
provisions, it refers to credit cards other than charge cards.
    2(a)(16) Credit sale.
    1. Special disclosure. If the seller is a creditor in the 
transaction, the transaction is a credit sale and the special credit 
sale disclosures (that is, the disclosures under Sec. 226.18(j)) must be 
given. This applies even if there is more than one creditor in the 
transaction and the creditor making the disclosures is not the seller. 
See the commentary to Sec. 226.17(d).
    2. Sellers who arrange credit. If the seller of the property or 
services involved arranged for financing but is not a creditor as to 
that sale, the transaction is not a credit sale. Thus, if a seller 
assists the consumer in obtaining a direct loan from a financial 
institution and the consumer's note is payable to the financial 
institution, the transaction is a loan and only the financial 
institution is a creditor.
    3. Refinancings. Generally, when a credit sale is refinanced within 
the meaning of Sec. 226.20(a), loan disclosures should be made. However, 
if a new sale of goods or services is also involved, the transaction is 
a credit sale.
    4. Incidental sales. Some lenders sell a product or service--such as 
credit, property, or health insurance--as part of a loan transaction. 
Section 226.4 contains the rules on whether the cost of credit life, 
disability or property insurance is part of the finance charge. If the 
insurance is financed, it may be disclosed as a separate credit sale 
transaction or disclosed as part of the primary transaction; if the 
latter approach is taken, either loan or credit sale disclosures may be 
made. See the commentary to Sec. 226.17(c)(1) for further discussion of 
this point.
    5. Credit extensions for educational purposes. A credit extension 
for educational purposes in which an educational institution is the 
creditor may be treated as either a credit sale or a loan, regardless of 
whether the funds are given directly to the student, credited to the 
student's account, or disbursed to other persons on the student's 
behalf. The disclosure of the total sale price need not be given if the 
transaction is treated as a loan.
    2(a)(17) Creditor.
    1. General. The definition contains four independent tests. If any 
one of the tests is met, the person is a creditor for purposes of that 
particular test.
    Paragraph 2(a)(17)(i).
    1. Prerequisites. This test is composed of 2 requirements, both of 
which must be met in order for a particular credit extension to be 
subject to the regulation and for the credit extension to count towards 
satisfaction of the numerical tests mentioned in footnote 3 to 
Sec. 226.2(a)(17). First, there must be either or both of the following:
     A written (rather than oral) agreement to pay in more than 
4 installments. A letter that merely confirms an oral agreement does not 
constitute a written agreement for purposes of the definition.
     A finance charge imposed for the credit. The obligation to 
pay the finance charge need not be in writing.
    Second, the obligation must be payable to the person in order for 
that person to be considered a creditor. If an obligation is made 
payable to bearer, the creditor is the one who initially accepts the 
obligation.
    2. Assignees. If an obligation is initially payable to one person, 
that person is the creditor even if the obligation by its terms is 
simultaneously assigned to another person. For example:

     An auto dealer and a bank have a business relationship in 
which the bank supplies the dealer with credit sale contracts that are 
initially made payable to the dealer and provide for the immediate 
assignment of the obligation to the bank. The dealer and purchaser 
execute the contract only after the bank approves the creditworthiness 
of the purchaser. Because the obligation is initially payable on its 
face to the dealer, the dealer is the only creditor in the transaction.


[[Page 299]]


    3. Numerical tests. The examples below illustrate how the numerical 
tests of footnote 3 are applied. The examples assume that consumer 
credit with a finance charge or written agreement for more than 4 
installments was extended in the years in question and that the person 
did not extend such credit in 1982.
    4. Counting transactions. For purposes of closed-end credit, the 
creditor counts each credit transaction. For open-end credit, 
transactions means accounts, so that outstanding accounts are counted 
instead of individual credit extensions. Normally the number of 
transactions is measured by the preceding calendar year; if the 
requisite number is met, then the person is a creditor for all 
transactions in the current year. However, if the person did not meet 
the test in the preceding year, the number of transactions is measured 
by the current calendar year. For example, if the person extends 
consumer credit 26 times in 1983, it is a creditor for purposes of the 
regulation for the last extension of credit in 1983 and for all 
extensions of consumer credit in 1984. On the other hand, if a business 
begins in 1983 and extends consumer credit 20 times, it is not a 
creditor for purposes of the regulation in 1983. If it extends consumer 
credit 75 times in 1984, however, it becomes a creditor for purposes of 
the regulation (and must begin making disclosures) after the 25th 
extension of credit in that year and is a creditor for all extensions of 
consumer credit in 1985.
    5. Relationship between consumer credit in general and credit 
secured by a dwelling. Extensions of credit secured by a dwelling are 
counted towards the 25-extensions test. For example, if in 1983 a person 
extends unsecured consumer credit 23 times and consumer credit secured 
by a dwelling twice, it becomes a creditor for the succeeding extensions 
of credit, whether or not they are secured by a dwelling. On the other 
hand, extensions of consumer credit not secured by a dwelling are not 
counted towards the number of credit extensions secured by a dwelling. 
For example, if in 1983 a person extends credit not secured by a 
dwelling 8 times and credit secured by a dwelling 3 times, it is not a 
creditor.
    6. Effect of satisfying one test. Once one of the numerical tests is 
satisfied, the person is also a creditor for the other type of credit. 
For example, in 1983 a person extends consumer credit secured by a 
dwelling 5 times. That person is a creditor for all succeeding credit 
extensions, whether they involve credit secured by a dwelling or not.
    7. Trusts. In the case of credit extended by trusts, each individual 
trust is considered a separate entity for purposes of applying the 
criteria. For example:

     A bank is the trustee for 3 trusts: Trust A makes 15 
extensions of consumer credit annually; Trust B makes 10 extensions of 
consumer credit annually; and Trust C makes 30 extensions of consumer 
credit annually. Only Trust C is a creditor for purposes of the 
regulation.
    8. Loans from employee savings plan. Some employee savings plans 
permit participants to borrow money up to a certain percentage of their 
account balances, and use a trust to administer the receipt and 
disbursement of funds. Unless each participant's account is an 
individual plan and trust, the creditor should apply the numerical tests 
to the plan as a whole rather than to the individual account, even if 
the loan amount is determined by reference to the balance in the 
individual account and the repayments are credited to the individual 
account. The person to whom the obligation is originally made payable 
(whether the plan, the trust, or the trustee) is the creditor for 
purposes of the act and regulation.

    Paragraph 2(a)(17)(ii). [Reserved]
    Paragraph 2(a)(17)(iii).
    1. Card issuers subject to Subpart B. Section 226.2(a)(17)(iii) 
makes certain card issuers creditors for purposes of the open-end credit 
provisions of the regulation. This includes, for example, the issuers of 
so-called travel and entertainment cards that expect repayment at the 
first billing and do not impose a finance charge. Since all disclosures 
are to be made only as applicable, such card issuers would omit finance 
charge disclosures. Other provisions of the regulation regarding such 
areas as scope, definitions, determination of which charges are finance 
charges, Spanish language disclosures, record retention, and use of 
model forms, also apply to such card issuers.
    Paragraph 2(a)(17)(iv).
    1. Card issuers subject to Subparts B and C. Section 
226.2(a)(17)(iv) includes as creditors card issuers extending closed-end 
credit in which there is a finance charge or an agreement to pay in more 
than 4 installments. These card issuers are subject to the appropriate 
provisions of Subparts B and C, as well as to the general provisions.
    2(a)(18) Downpayment.
    1. Allocation. If a consumer makes a lump-sum payment, partially to 
reduce the cash price and partially to pay prepaid finance charges, only 
the portion attributable to reducing the cash price is part of the 
downpayment. (See the commentary to Sec. 226.2(a)(23).)
    2. Pick-up payments. Creditors may treat the deferred portion of the 
down-payment, often referred to as pick-up payments, in a number of 
ways. If the pick-up payment is treated as part of the downpayment:

     It is subtracted in arriving at the amount financed under 
Sec. 226.18(b).
     It may, but need not, be reflected in the payment schedule 
under Sec. 226.18(g).

    If the pick-up payment does not meet the definition (for example, if 
it is payable after

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the second regularly scheduled payment) or if the creditor chooses not 
to treat it as part of the downpayment:

     It must be included in the amount financed.
     It must be shown in the payment schedule.

    Whichever way the pick-up payment is treated, the total of payments 
under Sec. 226.18(h) must equal the sum of the payments disclosed under 
Sec. 226.18(g).
    2(a)(19) Dwelling.
    1. Scope. A dwelling need not be the consumer's principal residence 
to fit the definition and thus a vacation or second home could be a 
dwelling. However, for purposes of the definition of residential 
mortgage transaction and the right to rescind, a dwelling must be the 
principal residence of the consumer. See the commentary to 
Secs. 226.2(a)(24), 226.15, and 226.23.
    2. Use as a residence. Mobile homes, boats, and trailers are 
dwellings if they are in fact used as residences, just as are 
condominium and cooperative units. Recreational vehicles, campers, and 
the like not used as residences are not dwellings.
    3. Relation to exemptions. Any transaction involving a security 
interest in a consumer's principal dwelling (as well as in any real 
property) remains subject to the regulation despite the general 
exemption in Sec. 226.3(b) for credit extensions over $25,000.
    2(a)(20) Open-end credit.
    1. General. This definition describes the characteristics of open-
end credit (for which the applicable disclosure and other rules are 
contained in Subpart B), as distinct from closed-end credit. Open-end 
credit is consumer credit that is extended under a plan and meets all 3 
criteria set forth in the definition.
    2. Existence of a plan. The definition requires that there be a 
plan, which connotes a contractual arrangement between the creditor and 
the consumer. Some creditors offer programs containing a number of 
different credit features. The consumer has a single account with the 
institution that can be accessed repeatedly via a number of sub-accounts 
established for the different program features and rate structures. Some 
features of the program might be used repeatedly (for example, an 
overdraft line) while others might be used infrequently (such as the 
part of the credit line available for secured credit). If the program as 
a whole is subject to prescribed terms and otherwise meets the 
definition of open-end credit, such a program would be considered a 
single, multi-featured plan.
    3. Repeated transactions. Under this criterion, the creditor must 
reasonably contemplate repeated transactions. This means that the credit 
plan must be usable from time to time and the creditor must legitimately 
expect that there will be repeat business rather than a one-time credit 
extension. The creditor must expect repeated dealings with the consumer 
under the credit plan as a whole, and need not believe the consumer will 
reuse a particular feature of the plan. A standard based on reasonable 
belief by a creditor necessarily includes some margin for judgmental 
error. The fact that a particular consumer does not return for further 
credit extensions does not prevent a plan from having been properly 
characterized as open-end. For example, if much of the customer base of 
a clothing store makes repeat purchases, the fact that some consumers 
only use the plan once would not affect the characterization of the 
store's plan as open-end credit. The criterion regarding repeated 
transactions is a question of fact to be decided in the context of the 
creditor's type of business and the creditor's relationship with the 
consumer. For example:

     It would be more reasonable for a thrift institution 
chartered for the benefit of its members to contemplate repeated 
transactions with a member, than for a seller of aluminum siding to make 
the same assumption about its customers.
     It would be more reasonable for a bank to make advances 
from a line of credit for the purchase of an automobile than for an 
automobile dealer to sell a car under an open-end plan.

    4. Finance charge on an outstanding balance. The requirement that a 
finance charge may be computed and imposed from time to time on the 
outstanding balance means that there is no specific amount financed for 
the plan for which the finance charge, total of payments, and payment 
schedule can be calculated. A plan may meet the definition of open-end 
credit even though a finance charge is not normally imposed, provided 
the creditor has the right, under the plan, to impose a finance charge 
from time to time on the outstanding balance. For example, in some 
plans, such as certain china club plans, a finance charge is not imposed 
if the consumer pays all or a specified portion of the outstanding 
balance within a given time period. Such a plan could meet the finance 
charge criterion, if the creditor has the right to impose a finance 
charge, even though the consumer actually pays no finance charges during 
the existence of the plan because the consumer takes advantage of the 
option to pay the balance (either in full or in installments) within the 
time necessary to avoid finance charges.
    5. Reusable line. The total amount of credit that may be extended 
during the existence of an open-end plan is unlimited because available 
credit is generally replenished as earlier advances are repaid. A line 
of credit is self-replenishing even though the plan itself has a fixed 
expiration date, as long as during the

[[Page 301]]

plan's existence the consumer may use the line, repay, and reuse the 
credit. The creditor may verify credit information such as the 
consumer's continued income and employment status or information for 
security purposes. This criterion of unlimited credit distinguishes 
open-end credit from a series of advances made pursuant to a close-end 
credit loan commitment. For example:

     Under a closed-end commitment, the creditor might agree to 
lend a total of $10,000 in a series of advances as needed by the 
consumer. When a consumer has borrowed the full $10,000, no more is 
advanced under that particular agreement, even if there has been 
repayment of a portion of the debt.

    This criterion does not mean that the creditor must establish a 
specific credit limit for the line of credit or that the line of credit 
must always be replenished to its original amount. The creditor may 
reduce a credit limit or refuse to extend new credit in a particular 
case due to changes in the economy, the creditor's financial condition, 
or the consumer's creditworthiness. (The rules in Sec. 226.5b(f), 
however, limit the ability of a creditor to suspend credit advances for 
home equity plans.) While consumers should have a reasonable expectation 
of obtaining credit as long as they remain current and within any preset 
credit limits, further extensions of credit need not be an absolute 
right in order for the plan to meet the self-replenishing criterion.
    6. Open-end real estate mortgages. Some credit plans call for 
negotiated advances under so-called open-end real estate mortgages. Each 
such plan must be independently measured against the definition of open-
end credit, regardless of the terminology used in the industry to 
describe the plan. The fact that a particular plan is called an open-end 
real estate mortgage, for example, does not, by itself, mean that it is 
open-end credit under the regulation.
    2(a)(21) Periodic rate.
    1. Basis. The periodic rate may be stated as a percentage (for 
example, 1\1/2\% per month) or as a decimal equivalent (for example, 
.015 monthly). It may be based on any portion of a year the creditor 
chooses. Some creditors use \1/360\ of an annual rate as their periodic 
rate. These creditors:

     May disclose a \1/360\ rate as a daily periodic rate, 
without further explanation, if it is in fact only applied 360 days per 
year. But if the creditor applies that rate for 365 days, the creditor 
must note that fact and, of course, disclose the true annual percentage 
rate.
     Would have to apply the rate to the balance to disclose the 
annual percentage rate with the degree of accuracy required in the 
regulation (that is, within \1/8\ of 1 percentage point of the rate 
based on the actual 365 days in the year).

    2. Transaction charges. Periodic rate does not include initial one-
time transaction charges, even if the charge is computed as a percentage 
of the transaction amount.
    2(a)(22) Person.
    1. Joint ventures. A joint venture is an organization and is 
therefore a person.
    2. Attorneys. An attorney and his or her client are considered to be 
the same person for purposes of this regulation when the attorney is 
acting within the scope of the attorney-client relationship with regard 
to a particular transaction.
    3. Trusts. A trust and its trustee are considered to be the same 
person for purposes of this regulation.
    2(a)(23) Prepaid finance charge.
    1. General. Prepaid finance charges must be taken into account under 
Sec. 226.18(b) in computing the disclosed amount financed, and must be 
disclosed if the creditor provides an itemization of the amount financed 
under Sec. 226.18(c).
    2. Examples. Common examples of prepaid finance charges include:

 Buyer's points.
 Service fees.
 Loan fees.
 Finder's fees.
 Loan guarantee insurance.
 Credit investigation fees.

However, in order for these or any other finance charges to be 
considered prepaid, they must be either paid separately in cash or check 
or withheld from the proceeds. Prepaid finance charges include any 
portion of the finance charge paid prior to or at closing or settlement.

    3. Exclusions. Add-on and discount finance charges are not prepaid 
finance charges for purposes of this regulation. Finance charges are not 
prepaid merely because they are precomputed, whether or not a portion of 
the charge will be rebated to the consumer upon prepayment. See the 
commentary to Sec. 226.18(b).
    4. Allocation of lump-sum payments. In a credit sale transaction 
involving a lump-sum payment by the consumer and a discount or other 
item that is a finance charge under Sec. 226.4, the discount or other 
item is a prepaid finance charge to the extent the lump-sum payment is 
not applied to the cash price. For example, a seller sells property to a 
consumer for $10,000, requires the consumer to pay $3,000 at the time of 
the purchase, and finances the remainder as a closed-end credit 
transaction. The cash price of the property is $9,000. The seller is the 
creditor in the transaction and therefore the $1,000 difference between 
the credit and cash prices (the discount) is a finance charge. (See the 
commentary to Secs. 226.4(b)(9) and 226.4(c)(5).) If the creditor 
applies the entire $3,000 to the cash price and adds the $1,000 finance 
charge to the interest on the $6,000 to arrive at the

[[Page 302]]

total finance charge, all of the $3,000 lump-sum payment is a 
downpayment and the discount is not a prepaid finance charge. However, 
if the creditor only applies $2,000 of the lump-sum payment to the cash 
price, then $2,000 of the $3,000 is a downpayment and the $1,000 
discount is a prepaid finance charge.
    2(a)(24) Residential mortgage transaction.
    1. Relation to other sections. This term is important in six 
provisions in the regulation:

 Section 226.4(c)(7)--exclusions from the finance charge.
 Section 226.15(f)--exemption from the right of rescission.
 Section 226.18(q)--whether or not the obligation is assumable.
 Section 226.19--special timing rules.
 Section 226.20(b)--disclosure requirements for assumptions.
 Section 226.23(f)--exemption from the right of rescission.

    2. Lien status. The definition is not limited to first lien 
transactions. For example, a consumer might assume a paid-down first 
mortgage (or borrow part of the purchase price) and borrow the balance 
of the purchase price from a creditor who takes a second mortgage. The 
second mortgage transaction is a residential mortgage transaction if the 
dwelling purchased is the consumer's principal residence.
    3. Principal dwelling. A consumer can only have one principal 
dwelling at a time. Thus, a vacation or other second home would not be a 
principal dwelling. However, if a consumer buys or builds a new dwelling 
that will become the consumer's principal dwelling within a year or upon 
the completion of construction, the new dwelling is considered the 
principal dwelling for purposes of applying this definition to a 
particular transaction. See the commentary to Secs. 226.15(a) and 
226.23(a).
    4. Construction financing. If a transaction meets the definition of 
a residential mortgage transaction and the creditor chooses to disclose 
it as several transactions under Sec. 226.17(c)(6), each one is 
considered to be a residential mortgage transaction, even if different 
creditors are involved. For example:
     The creditor makes a construction loan to finance the 
initial construction of the consumer's principal dwelling, and the loan 
will be disbursed in 5 advances. The creditor gives 6 sets of 
disclosures (5 for the construction phase and 1 for the permanent 
phase). Each one is a residential mortgage transaction.
     One creditor finances the initial construction of the 
consumer's principal dwelling and another creditor makes a loan to 
satisfy the construction loan and provide permanent financing. Both 
transactions are residential mortgage transactions.
    5. Acquisition. A transaction is not to finance the acquisition of 
the consumer's principal dwelling (and therefore is not a residential 
mortgage transaction) if the consumer had previously purchased the 
dwelling and acquired some title to the dwelling, even though the 
consumer has not acquired full legal title. Thus, the following types of 
transactions are not residential mortgage transactions:

 The financing of a balloon payment due under a land sale 
contract.
 An extension of credit made to a joint owner of property to buy 
out the other joint owner's interest.

    As a result, in giving the disclosures for these transactions 
several provisions of the regulation are not applicable, for example, 
the exceptions to the right of rescission (Secs. 226.23(f)(1) and 
226.15(f)(1)), the early disclosure requirement (Sec. 226.19(a)), and 
the disclosure concerning assumability (Sec. 226.18(q)). In the 
following situation, by contrast, since the transaction is not a 
residential mortgage transaction, no disclosures are required by 
Sec. 226.20(b) and therefore the right of rescission does not apply:

 A written agreement between a creditor holding a seller's 
mortgage and the buyer of the property which allows the buyer to assume 
the mortgage, where the buyer previously purchased the property and 
agreed with the seller to make the mortgage payments.
    6. Multiple purpose transactions. A transaction meets the definition 
of this section if any part of the loan proceeds will be used to finance 
the acquisition or initial construction of the consumer's principal 
dwelling. For example, a transaction to finance the initial construction 
of the consumer's principal dwelling is a residential mortgage 
transaction even if a portion of the funds will be disbursed directly to 
the consumer or used to satisfy a loan for the purchase of the land on 
which the dwelling will be built.
    2(a)(25) Security interest.
    1. Threshold test. The threshold test is whether a particular 
interest in property is recognized as a security interest under 
applicable law. The regulation does not determine whether a particular 
interest is a security interest under applicable law. If the creditor is 
unsure whether a particular interest is a security interest under 
applicable law (for example, if statutes and case law are either silent 
or inconclusive on the issue), the creditor may at its option consider 
such interests as security interests for Truth in Lending purposes. 
However, the regulation and the commentary do exclude specific 
interests, such as after-acquired property and accessories, from the 
scope of the definition regardless of their categorization under 
applicable law, and these named exclusions may not be disclosed as 
security interests under

[[Page 303]]

the regulation. (But see the discussion of exclusions elsewhere in the 
commentary to Sec. 226.2(a)(25).)
    2. Exclusions. The general definition of security interest excludes 
three groups of interests: Incidental interests, interests in after-
acquired property, and interests that arise solely by operation of law. 
These interests may not be disclosed with the disclosures required under 
Sec. 226.18, but the creditor is not precluded from preserving these 
rights elsewhere in the contract documents, or invoking and enforcing 
such rights, if it is otherwise lawful to do so. If the creditor is 
unsure whether a particular interest is one of the excluded interests, 
the creditor may, at its option, consider such interests as security 
interests for Truth in Lending purposes.
    3. Incidental interests. Incidental interests in property that are 
not security interests include, among other things:

     Assignment of rents.
     Right to condemnation proceeds.
     Interests in accessories and replacements.
     Interests in escrow accounts, such as for taxes and 
insurance.
     Waiver of homestead or personal property rights.

    The notion of an incidental interest does not encompass an explicit 
security interest in an insurance policy if that policy is the primary 
collateral for the transaction--for example, in an insurance premium 
financing transaction.
    4. Operation of law. Interests that arise solely by operation of law 
are excluded from the general definition. Also excluded are interests 
arising by operation of law that are merely repeated or referred to in 
the contract. However, if the creditor has an interest that arises by 
operation of law, such as a vendor's lien, and takes an independent 
security interest in the same property, such as a UCC security interest, 
the latter interest is a disclosable security interest unless otherwise 
provided.
    5. Rescission rules. Security interests that arise solely by 
operation of law are security interests for purposes of rescission. 
Examples of such interests are mechanics' and materialmen's liens.
    6. Specificity of disclosure. A creditor need not separately 
disclose multiple security interests that it may hold in the same 
collateral. The creditor need only disclose that the transaction is 
secured by the collateral, even when security interests from prior 
transactions remain of record and a new security interest is taken in 
connection with the transaction. In disclosing the fact that the 
transaction is secured by the collateral, the creditor also need not 
disclose how the security interest arose. For example, in a closed-end 
credit transaction, a rescission notice need not specifically state that 
a new security interest is ``acquired'' or an existing security interest 
is ``retained'' in the transaction.
    The acquisition or retention of a security interest in the 
consumer's principal dwelling instead may be disclosed in a rescission 
notice with a general statement such as the following: ``Your home is 
the security for the new transaction.'' A statement such as this may be 
used, for example, instead of the second sentence in model form H-9 and 
could apply both to a refinancing in which a new security interest is 
taken by the original creditor to replace a preexisting security 
interest and one in which an existing security interest is maintained. 
Of course, because model form H-9 adequately discloses the fact that the 
home is security for the transaction, it may be used without 
modification in both a refinancing in which a new security interest is 
taken by the original creditor to replace a preexisting security 
interest and one in which an existing security interest is retained by 
that creditor.
    2(b) Rules of construction.
    1. Footnotes. Footnotes are used extensively in the regulation to 
provide special exceptions and more detailed explanations and examples. 
Material that appears in a footnote has the same legal weight as 
material in the body of the regulation.

                               References

    Statute: Section 103.
    Other sections: None.
    Other regulations: Regulation E (12 CFR 205.2(d)).
    Previous regulation: Sections 226.2, 226.8, and 226.9.
    1981 changes: Section 226.2 implements amended section 103 of the 
act. Separate definitions for comparative index of credit cost, 
discount, organization, period, real property, real property 
transaction, regular price, and surcharge have been deleted. The 
definitions relating specifically to consumer leases are now found in 
the separate consumer leasing regulation, Regulation M (12 CFR Part 
213).
    Several terms are now defined elsewhere in the regulation or 
commentary rather than in Sec. 226.2. For example, finance charge is 
described and explained in Sec. 226.4, and agricultural purpose is 
discussed in the commentary to Sec. 226.3. Some terms, such as 
unauthorized use, are now defined as part of the substantive sections to 
which they apply. Other terms previously defined, such as customer and 
organization, are merged into new definitions. Section 226.2 contains 
new definitions for arranger of credit, business day, closed-end credit, 
consumer, consummation, downpayment, prepaid finance charge, and 
residential mortgage transaction.
    The major changes in the definitions are as follows:
    Arranger of credit has a significantly different meaning. It 
reflects the statutory

[[Page 304]]

amendment that limits arrangers to those who regularly arrange credit 
extensions for persons who are not themselves creditors. This definition 
was deleted effective October 1, 1982.
    Billing cycle largely restates the prior definition, but requires 
cycles to be regular, and allows the four-day variance to be measured 
from a regular day as well as date. The definition also incorporates an 
interpretation that cycles may be no longer than quarterly.
    Business day is new in the sense that the term previously appeared 
only in a footnote to the rescission provision, but it is now of general 
applicability. The general rule that it is a day when the creditor is 
open for business is new, but the rule for rescission purposes is the 
same as in the previous regulation.
    Cash price now explicitly permits inclusion of various incidental 
charges imposed equally in cash and credit transactions.
    Consumer has a narrower meaning in that guarantors, sureties, and 
endorsers are excluded from the general definition.
    Consumer credit reflects the new statutory exemption for 
agricultural credit.
    Consummation is a significant departure from longstanding 
interpretations of the previous definition. It now focuses only on the 
time the consumer becomes contractually obligated, rather than the time 
the consumer pays a nonrefundable fee or suffers an economic penalty for 
failing to go forward with the credit transaction.
    Credit generally parallels the previous definition, but modifies the 
previous interpretations of the definition by excluding more 
transactions.
    Creditor reflects the statutory amendments to the act that were 
intended to eliminate the problem of multiple creditors in a 
transaction. The regularly standard is still used, but it is now defined 
in terms of the frequency of the credit extensions. The new definition 
also requires that there be a written agreement to pay in more than 4 
installments if no finance charge is imposed. Finally, the obligation 
must be initially payable to a person for that person to be the 
creditor.
    Dwelling reflects the statutory amendment that expanded the scope of 
the definition to include any residential structure, whether or not it 
is real property under state law.
    Open-end credit reflects the amended statutory definition requiring 
that the creditor reasonably contemplate repeated transactions. The new 
definition no longer requires the consumer to have the privilege of 
paying either in installments or in full.
    Periodic rate combines the previous definitions of period and 
periodic rate with clarification in the commentary concerning 
transaction charges and 360-day-year factors.
    Security interest is much narrower than the previous definition. 
Reflecting the legislative history of the simplification amendments, 
incidental interests are expressly excluded from the definition. Except 
for purposes of rescission, interests that arise solely by operation of 
law are also excluded.

                   Section 226.3--Exempt Transactions

    3(a) Business, commercial, agricultural, or organizational credit.
    1. Primary purposes. A creditor must determine in each case if the 
transaction is primarily for an exempt purpose. If some question exists 
as to the primary purpose for a credit extension, the creditor is, of 
course, free to make the disclosures, and the fact that disclosures are 
made under such circumstances is not controlling on the question of 
whether the transaction was exempt.
    2. Factors. In determining whether credit to finance an 
acquisition--such as securities, antiques, or art--is primarily for 
business or commercial purposes (as opposed to a consumer purpose), the 
following factors should be considered:

     The relationship of the borrower's primary occupation to 
the acquisition. The more closely related, the more likely it is to be 
business purpose.
     The degree to which the borrower will personally manage the 
acquisition. The more personal involvement there is, the more likely it 
is to be business purpose.
     The ratio of income from the acquisition to the total 
income of the borrower. The higher the ratio, the more likely it is to 
be business purpose.
     The size of the transaction. The larger the transaction, 
the more likely it is to be business purpose.
     The borrower's statement of purpose for the loan.
    Examples of business-purpose credit include:

     A loan to expand a business, even if it is secured by the 
borrower's residence or personal property.
     A loan to improve a principal residence by putting in a 
business office.
     A business account used occasionally for consumer purposes.

    Examples of consumer-purpose credit include:

     Credit extensions by a company to its employees or agents 
if the loans are used for personal purposes.
     A loan secured by a mechanic's tools to pay a child's 
tuition.
     A personal account used occasionally for business purposes.

    3. Non-owner-occupied rental property. Credit extended to acquire, 
improve, or maintain rental property (regardless of the number of 
housing units) that is not owner-occupied is deemed to be for business 
purposes. This includes, for example, the acquisition of a

[[Page 305]]

warehouse that will be leased or a single-family house that will be 
rented to another person to live in. If the owner expects to occupy the 
property for more than 14 days during the coming year, the property 
cannot be considered non-owner-occupied and this special rule will not 
apply. For example, a beach house that the owner will occupy for a month 
in the coming summer and rent out the rest of the year is owner occupied 
and is not governed by this special rule. See Comment 3(a)-4, however, 
for rules relating to owner-occupied rental property.
    4. Owner-occupied rental property. If credit is extended to acquire, 
improve, or maintain rental property that is or will be owner-occupied 
within the coming year, different rules apply:

     Credit extended to acquire the rental property is deemed to 
be for business purposes if it contains more than 2 housing units.
     Credit extended to improve or maintain the rental property 
is deemed to be for business purposes if it contains more than 4 housing 
units. Since the amended statute defines dwelling to include 1 to 4 
housing units, this rule preserves the right of rescission for credit 
extended for purposes other than acquisition.

    Neither of these rules means that an extension of credit for 
property containing fewer than the requisite number of units is 
necessarily consumer credit. In such cases, the determination of whether 
it is business or consumer credit should be made by considering the 
factors listed in Comment 3(a)-2.
    5. Business credit later refinanced. Business-purpose credit that is 
exempt from the regulation may later be rewritten for consumer purposes. 
Such a transaction is consumer credit requiring disclosures only if the 
existing obligation is satisfied and replaced by a new obligation made 
for consumer purposes undertaken by the same obligor.
    6. Agricultural purpose. An agricultural purpose includes the 
planting, propagating, nurturing, harvesting, catching, storing, 
exhibiting, marketing, transporting, processing, or manufacturing of 
food, beverages (including alcoholic beverages), flowers, trees, 
livestock, poultry, bees, wildlife, fish, or shellfish by a natural 
person engaged in farming, fishing, or growing crops, flowers, trees, 
livestock, poultry, bees, or wildlife. The exemption also applies to a 
transaction involving real property that includes a dwelling (for 
example, the purchase of a farm with a homestead) if the transaction is 
primarily for agricultural purposes.
    7. Organizational credit. The exemption for transactions in which 
the borrower is not a natural person applies, for example, to loans to 
corporations, partnerships, associations, churches, unions, and 
fraternal organizations. The exemption applies regardless of the purpose 
of the credit extension and regardless of the fact that a natural person 
may guarantee or provide security for the credit.
    8. Land trusts. Credit extended for consumer purposes to a land 
trust is considered to be credit extended to a natural person rather 
than credit extended to an organization. In some jurisdictions, a 
financial institution financing a residential real estate transaction 
for an individual uses a land trust mechanism. Title to the property is 
conveyed to the land trust for which the financial institution itself is 
trustee. The underlying installment note is executed by the financial 
institution in its capacity as trustee and payment is secured by a trust 
deed, reflecting title in the financial institution as trustee. In some 
instances, the consumer executes a personal guaranty of the 
indebtedness. The note provides that it is payable only out of the 
property specifically described in the trust deed and that the trustee 
has no personal liability on the note. Assuming the transactions are for 
personal, family, or household purposes, these transactions are subject 
to the regulation since in substance (if not form) consumer credit is 
being extended.
    3(b) Credit over $25,000 not secured by real property or a dwelling.
    1. Coverage. Since a mobile home can be a dwelling under 
Sec. 226.2(a)(19), this exemption does not apply to a credit extension 
secured by a mobile home used or expected to be used as the principal 
dwelling of the consumer, even if the credit exceeds $25,000. A loan 
commitment for closed-end credit in excess of $25,000 is exempt even 
though the amounts actually drawn never actually reach $25,000.
    2. Open-end credit. An open-end credit plan is exempt under 
Sec. 226.3(b) (unless secured by real property or personal property used 
or expected to be used as the consumer's principal dwelling) if either 
of the following conditions is met:

     The creditor makes a firm commitment to lend over $25,000 
with no requirement of additional credit information for any advances.
     The initial extension of credit on the line exceeds 
$25,000.

If a security interest is taken at a later time in any real property, or 
in personal property used or expected to be used as the consumer's 
principal dwelling, the plan would no longer be exempt. The creditor 
must comply with all of the requirements of the regulation including, 
for example, providing the consumer with an initial disclosure 
statement. If the security interest being added is in the consumer's 
principal dwelling, the creditor must also give the consumer the right 
to rescind the security interest. (See the commentary to Sec. 226.15 
concerning the right of rescission.)

[[Page 306]]

    3. Closed-end credit--subsequent changes. A closed-end loan for over 
$25,000 may later be rewritten for $25,000 or less, or a security 
interest in real property or in personal property used or expected to be 
used as the consumer's principal dwelling may be added to an extension 
of credit for over $25,000. Such a transaction is consumer credit 
requiring disclosures only if the existing obligation is satisfied and 
replaced by a new obligation made for consumer purposes undertaken by 
the same obligor. (See the commentary to Sec. 226.23(a)(1) regarding the 
right of rescission when a security interest in a consumer's principal 
dwelling is added to a previously exempt transaction.)
    3(c) Public utility credit.
    1. Examples. Examples of public utility services include:

     Gas, water, or electrical services.
     Cable television services.
     Installation of new sewer lines, water lines, conduits, 
telephone poles, or metering equipment in an area not already serviced 
by the utility.

    The exemption does not apply to extensions of credit, for example:

     To purchase appliances such as gas or electric ranges, 
grills, or telephones.
     To finance home improvements such as new heating or air 
conditioning systems.

    3(d) Securities or commodities accounts.
    1. Coverage. This exemption does not apply to a transaction with a 
broker registered solely with the state, or to a separate credit 
extension in which the proceeds are used to purchase securities.
    3(e) Home fuel budget plans.
    1. Definition. Under a typical home fuel budget plan, the fuel 
dealer estimates the total cost of fuel for the season, bills the 
customer for an average monthly payment, and makes an adjustment in the 
final payment for any difference between the estimated and the actual 
cost of the fuel. Fuel is delivered as needed, no finance charge is 
assessed, and the customer may withdraw from the plan at any time. Under 
these circumstances, the arrangement is exempt from the regulation, even 
if a charge to cover the billing costs is imposed.
    3(f) Student loan programs.
    1. Coverage. This exemption applies to the Guaranteed Student Loan 
program (administered by the Federal government, State, and private non-
profit agencies), the Auxiliary Loans to Assist Students (also known as 
PLUS) program, and the National Direct Student Loan program.

                               References

    Statute: Sections 103 (s) and (t) and 104.
    Other sections: Section 226.12 (a) and (b).
    Previous regulation: Section 226.3 and Interpretations Secs. 226.301 
and 226.302.
    1981 changes: The business credit exemption has been expanded to 
include credit for agricultural purposes. The rule of Interpretation 
Sec. 226.302, concerning credit relating to structures containing more 
than 4 housing units, has been modified and somewhat expanded by 
providing more exclusions for transactions involving rental property.
    The exemption for transactions above $25,000 secured by real estate 
has been narrowed; all transactions secured by the consumer's principal 
dwelling (even if not considered real property) are now subject to the 
regulation.
    The public utility exemption now covers the financing of the 
extension of a utility into an area not earlier served by the utility, 
in addition to the financing of services.
    The securities credit exemption has been extended to broker-dealers 
registered with the CFTC as well as the SEC.
    A new exemption has been created for home fuel budget plans.

                      Section 226.4--Finance Charge

    4(a) Definition.
    1. Charges in comparable cash transactions. Charges imposed 
uniformly in cash and credit transactions are not finance charges. In 
determining whether an item is a finance charge, the creditor should 
compare the credit transaction in question with a similar cash 
transaction. A creditor financing the sale of property or services may 
compare charges with those payable in a similar cash transaction by the 
seller of the property or service.
    i. For example, the following items are not finance charges:
    A. Taxes, license fees, or registration fees paid by both cash and 
credit customers.
    B. Discounts that are available to cash and credit customers, such 
as quantity discounts.
    C. Discounts available to a particular group of consumers because 
they meet certain criteria, such as being members of an organization or 
having accounts at a particular financial institution. This is the case 
even if an individual must pay cash to obtain the discount, provided 
that credit customers who are members of the group and do not qualify 
for the discount pay no more than the nonmember cash customers.
    D. Charges for a service policy, auto club membership, or policy of 
insurance against latent defects offered to or required of both cash and 
credit customers for the same price.
    ii. In contrast, the following items are finance charges:
    A. Inspection and handling fees for the staged disbursement of 
construction loan proceeds.
    B. Fees for preparing a Truth in Lending disclosure statement, if 
permitted by law (for example, the Real Estate Settlement Procedures Act 
prohibits such charges in

[[Page 307]]

certain transactions secured by real property).
    C. Charges for a required maintenance or service contract imposed 
only in a credit transaction.
    iii. If the charge in a credit transaction exceeds the charge 
imposed in a comparable cash transaction, only the difference is a 
finance charge. For example:
    A. If an escrow agent is used in both cash and credit sales of real 
estate and the agent's charge is $100 in a cash transaction and $150 in 
a credit transaction, only $50 is a finance charge.
    2. Costs of doing business. Charges absorbed by the creditor as a 
cost of doing business are not finance charges, even though the creditor 
may take such costs into consideration in determining the interest rate 
to be charged or the cash price of the property or service sold. 
However, if the creditor separately imposes a charge on the consumer to 
cover certain costs, the charge is a finance charge if it otherwise 
meets the definition. For example:

     A discount imposed on a credit obligation when it is 
assigned by a seller-creditor to another party is not a finance charge 
as long as the discount is not separately imposed on the consumer. (See 
Sec. 226.4(b)(6).)
     A tax imposed by a state or other governmental body on a 
creditor is not a finance charge if the creditor absorbs the tax as a 
cost of doing business and does not separately impose the tax on the 
consumer. (For additional discussion of the treatment of taxes, see 
other commentary to Sec. 226.4(a).)

    3. Charges by third parties. Charges imposed on the consumer by 
someone other than the creditor are finance charges (unless otherwise 
excluded) if the creditor requires the use of a third party as a 
condition of or incident to the extension of credit, even if the 
consumer can choose the third party, or the creditor retains the charge. 
For example:
    i. The cost of required mortgage insurance, even if the consumer is 
allowed to choose the insurer.
    ii. [Reserved]
    4. Charges by settlement agents. Charges imposed on the consumer by 
a settlement agent (such as an attorney, escrow agent, or title company) 
are finance charges only if the creditor requires the particular 
services for which the settlement agent is charging the borrower and the 
charge for those services is not otherwise excluded from the finance 
charge. For example, a fee for courier service charged by a settlement 
agent to send a document to the title company or some other party is not 
a finance charge, provided that the creditor has not required the use of 
a courier or retained the charge.
    5. Forfeitures of interest. If the creditor reduces the interest 
rate it pays or stops paying interest on the consumer's deposit account 
or any portion of it for the term of a credit transaction (including, 
for example, an overdraft on a checking account or a loan secured by a 
certificate of deposit), the interest lost is a finance charge. (See the 
commentary to Sec. 226.4(c)(6).) For example:

     A consumer borrows $5,000 for 90 days and secures it with a 
$10,000 certificate of deposit paying 15% interest. The creditor charges 
the consumer an interest rate of 6% on the loan and stops paying 
interest on $5,000 of the $10,000 certificate for the term of the loan. 
The interest lost is a finance charge and must be reflected in the 
annual percentage rate on the loan.

    However, the consumer must be entitled to the interest that is not 
paid in order for the lost interest to be a finance charge. For example:

     A consumer wishes to buy from a financial institution a 
$10,000 certificate of deposit paying 15% interest but has only $4,000. 
The financial institution offers to lend the consumer $6,000 at an 
interest rate of 6%, but will pay the 15% interest only on the amount of 
the consumer's deposit, $4,000. The creditor's failure to pay interest 
on the $6,000 does not result in an additional finance charge on the 
extension of credit, provided the consumer is entitled by the deposit 
agreement with the financial institution to interest only on the amount 
of the consumer's deposit.
     A consumer enters into a combined time deposit/credit 
agreement with a financial institution that establishes a time deposit 
account and an open-end line of credit. The line of credit may be used 
to borrow against the funds in the time deposit. The agreement provides 
for an interest rate on any credit extension of, for example, 1%. In 
addition, the agreement states that the creditor will pay 0% interest on 
the amount of the time deposit that corresponds to the amount of the 
credit extension(s). The interest that is not paid on the time deposit 
by the financial institution is not a finance charge (and therefore does 
not affect the annual percentage rate computation).

    6. Treatment of fees for use of automated teller machines. Any 
charge imposed on a cardholder by a card issuer for the use of an 
automated teller machine (ATM) to obtain a cash advance (whether in a 
proprietary, shared, interchange, or other system) is not a finance 
charge to the extent that it does not exceed the charge imposed by the 
card issuer on its cardholders for using the ATM to withdraw cash from a 
consumer asset account, such as a checking or savings account. (See the 
commentary to Sec. 226.6(b).)
    7. Taxes. i. Generally, a tax imposed by a state or other 
governmental body solely on a creditor is a finance charge if the 
creditor separately imposes the charge on the consumer.

[[Page 308]]

    ii. In contrast, a tax is not a finance charge (even if the tax is 
collected by the creditor) if applicable law imposes the tax:
    A. Solely on the consumer;
    B. On the creditor and the consumer jointly;
    C. On the credit transaction, without indicating which party is 
liable for the tax; or
    D. On the creditor, if applicable law directs or authorizes the 
creditor to pass the tax on to the consumer. (For purposes of this 
section, if applicable law is silent as to passing on the tax, the law 
is deemed not to authorize passing it on.)
    iii. For example, a stamp tax, property tax, intangible tax, or any 
other state or local tax imposed on the consumer, or on the credit 
transaction, is not a finance charge even if the tax is collected by the 
creditor.
    iv. In addition, a tax is not a finance charge if it is excluded 
from the finance charge by an other provision of the regulation or 
commentary (for example, if the tax is imposed uniformly in cash and 
credit transactions).
    4(b) Examples of finance charges.
    1. Relationship to other provisions. Charges or fees shown as 
examples of finance charges in Sec. 226.4(b) may be excludable under 
Sec. 226.4(c), (d), or (e). For example:

     Premiums for credit life insurance, shown as an example of 
a finance charge under Sec. 226.4(b)(7), may be excluded if the 
requirements of Sec. 226.4(d)(1) are met.
     Appraisal fees mentioned in Sec. 226.4(b)(4) are excluded 
for real property or residential mortgage transactions under 
Sec. 226.4(c)(7).

    Paragraph 4(b)(2).
    1. Checking account charges. The checking or transaction account 
charges discussed in Sec. 226.4(b)(2) include, for example, the 
following situations:

     An account with an overdraft line of credit incurs a $4.50 
service charge while an account without a credit feature has a $2.50 
service charge; the $2.00 difference is a finance charge. If the 
difference is not related to account activity, however, it may be 
excludable as a participation fee. (See the commentary to 
Sec. 226.4(c)(4).)
     A service charge of $5.00 for each item that triggers an 
overdraft credit line is a finance charge. However, a charge imposed 
uniformly for any item that overdraws a checking account, regardless of 
whether the items are paid or returned and whether the account has a 
credit feature or not, is not a finance charge.

    Paragraph 4(b)(3).
    1. Assumption fees. The assumption fees mentioned in 
Sec. 226.4(b)(3) are finance charges only when the assumption occurs and 
the fee is imposed on the new buyer. The assumption fee is a finance 
charge in the new buyer's transaction.
    Paragraph 4(b)(5).
    1. Credit loss insurance. Common examples of the insurance against 
credit loss mentioned in Sec. 226.4(b)(5) are mortgage guaranty 
insurance, holder in due course insurance, and repossession insurance. 
Such premiums must be included in the finance charge only for the period 
that the creditor requires the insurance to be maintained.
    2. Residual value insurance.  Where a creditor requires a consumer 
to maintain residual value insurance or where the creditor is a 
beneficiary of a residual value insurance policy written in connection 
with an extension of credit (as is the case in some forms of automobile 
balloon payment financing, for example), the premiums for the insurance 
must be included in the finance charge for the period that the insurance 
is to be maintained. If a creditor pays for residual value insurance and 
absorbs the payment as a cost of doing business, such costs are not 
considered finance charges. (See comment 4(a)-2.)
    Paragraphs 4(b) (7) and (8).
    1. Pre-existing insurance policy. The insurance discussed in 
Sec. 226.4(b) (7) and (8) does not include an insurance policy (such as 
a life or an automobile collision insurance policy) that is already 
owned by the consumer, even if the policy is assigned to or otherwise 
made payable to the creditor to satisfy an insurance requirement. Such a 
policy is not ``written in connection with'' the transaction, as long as 
the insurance was not purchased for use in that credit extension, since 
it was previously owned by the consumer.
    2. Insurance written in connection with a transaction. Insurance 
sold after consummation in closed-end credit transactions or after the 
opening of a plan in open-end credit transactions is not ``written in 
connection with'' the credit transaction if the insurance is written 
because of the consumer's default (for example, by failing to obtain or 
maintain required property insurance) or because the consumer requests 
insurance after consummation or the opening of a plan (although credit 
sale disclosures may be required for the insurance sold after 
consummation if it is financed).
    3. Substitution of life insurance. The premium for a life insurance 
policy purchased and assigned to satisfy a credit life insurance 
requirement must be included in the finance charge, but only to the 
extent of the cost of the credit life insurance if purchased from the 
creditor or the actual cost of the policy (if that is less than the cost 
of the insurance available from the creditor). If the creditor does not 
offer the required insurance, the premium to be included in the finance 
charge is the cost of a policy of insurance of the type, amount, and 
term required by the creditor.
    4. Other insurance. Fees for required insurance not of the types 
described in Sec. 226.4(b) (7) and (8) are finance charges and are not 
excludable. For example:


[[Page 309]]


     The premium for a hospitalization insurance policy, if it 
is required to be purchased only in a credit transaction, is a finance 
charge.

    Paragraph 4(b)(9).
    1. Discounts for payment by other than credit. The discounts to 
induce payment by other than credit mentioned in Sec. 226.4(b)(9) 
include, for example, the following situation:

     The seller of land offers individual tracts for $10,000 
each. If the purchaser pays cash, the price is $9,000, but if the 
purchaser finances the tract with the seller the price is $10,000. The 
$1,000 difference is a finance charge for those who buy the tracts on 
credit.

    2. Exception for cash discounts. Discounts offered to induce 
consumers to pay for property or services by cash, check, or other means 
not involving the use of either an open-end credit plan or a credit card 
(whether open-end or closed-end credit is extended on the card) may be 
excluded from the finance charge under section 167(b) of the Act (as 
amended by Pub. L. 97-25, July 27, 1981). The discount may be in 
whatever amount the seller desires, either as a percentage of the 
regular price (as defined in section 103(z) of the Act, as amended) or a 
dollar amount. This provision applies only to transactions involving an 
open-end credit plan or a credit card. The merchant must offer the 
discount to prospective buyers whether or not they are cardholders or 
members of the open-end credit plan. The merchant may, however, make 
other distinctions. For example:

     The merchant may limit the discount to payment by cash, and 
not offer it for payment by check or by use of a debit card.
     The merchant may establish a discount plan that allows a 
15% discount for payment by cash, a 10% discount for payment by check, 
and a 5% discount for payment by a particular credit card. None of these 
discounts is a finance charge.

    Section 171(c) of the Act excludes section 167(b) discounts from 
treatment as a finance charge or other charge for credit under any state 
usury or disclosure laws.
    3. Determination of the regular price. The regular price is critical 
in determining whether the difference between the price charged to cash 
customers and credit customers is a discount or a surcharge, as these 
terms are defined in amended section 103 of the Act. The regular price 
is defined in section 103 of the Act as--

    . . . the tag or posted price charged for the property or service if 
a single price is tagged or posted, or the price charged for the 
property or service when payment is made by use of an open-end credit 
account or a credit card if either (1) no price is tagged or posted, or 
(2) two prices are tagged or posted. . . .

     For example, in the sale of motor vehicle fuel, the tagged or 
posted price is the price displayed at the pump. As a result, the higher 
price (the open-end credit or credit card price) must be displayed at 
the pump, either alone or along with the cash price. Service station 
operators may designate separate pumps or separate islands as being for 
either cash or credit purchases and display only the appropriate prices 
at the various pumps. If a pump is capable of displaying on its meter 
either a cash or a credit price depending upon the consumer's means of 
payment, both the cash price and the credit price must be displayed at 
the pump. A service station operator may display the cash price of fuel 
by itself on a curb sign, as long as the sign clearly indicates that the 
price is limited to cash purchases.
    4(c) Charges excluded from the finance charge.
    Paragraph 4(c)(1).
    1. Application fees. An application fee that is excluded from the 
finance charge is a charge to recover the costs associated with 
processing applications for credit. The fee may cover the costs of 
services such as credit reports, credit investigations, and appraisals. 
The creditor is free to impose the fee in only certain of its loan 
programs, such as mortgage loans, However, if the fee is to be excluded 
from the finance charge under Sec. 226.4(c)(1), it must be charged to 
all applicants, not just to applicants who are approved or who actually 
receive credit.
    Paragraph 4(c)(2).
    1. Late payment charges. Late payment charges can be excluded from 
the finance charge under Sec. 226.4(c)(2) whether or not the person 
imposing the charge continues to extend credit on the account or 
continues to provide property or services to the consumer. In 
determining whether a charge is for actual unanticipated late payment on 
a 30-day account, for example, factors to be considered include:
     The terms of the account. For example, is the consumer 
required by the account terms to pay the account balance in full each 
month? If not, the charge may be a finance charge.
     The practices of the creditor in handling the accounts. For 
example, regardless of the terms of the account, does the creditor allow 
consumers to pay the accounts over a period of time without demanding 
payment in full or taking other action to collect? If no effort is made 
to collect the full amount due, the charge may be a finance charge.
    Section 226.4(c)(2) applies to late payment charges imposed for 
failure to make payments as agreed, as well as failure to pay an account 
in full when due.
    2. Other excluded charges. Charges for ``delinquency, default, or a 
similar occurrence'' include, for example, charges for reinstatement of 
credit privileges or for summitting

[[Page 310]]

as payment a check that is later returned unpaid.
    Paragraph 4(c)(3).
    1. Assessing interest on an overdraft balance. A charge on an 
overdraft balance computed by applying a rate of interest to the amount 
of the overdraft is not a finance charge, even though the consumer 
agrees to the charge in the account agreement, unless the financial 
institution agrees in writing that it will pay such items.
    Paragraph 4(c)(4).
    1. Participation fees--periodic basis. The participation fees 
mentioned in Sec. 226.4(c)(4) do not necessarily have to be formal 
membership fees, nor are they limited to credit card plans. The 
provision applies to any credit plan in which payment of a fee is a 
condition of access to the plan itself, but it does not apply to fees 
imposed separately on individual closed-end transactions. The fee may be 
charged on a monthly, annual, or other periodic basis; a one-time, non-
recurring fee imposed at the time an account is opened is not a fee that 
is charged on a periodic basis, and may not be treated as a 
participation fee.
    2. Participation fees--exclusions. Minimum monthly charges, charges 
for non-use of a credit card, and other charges based on either account 
activity or the amount of credit available under the plan are not 
excluded from the finance charge by Sec. 226.4(c)(4). Thus, for example, 
a fee that is charged and then refunded to the consumer based on the 
extent to which the consumer uses the credit available would be a 
finance charge. (See the commentary to Sec. 226.4(b)(2). Also, see 
comment 14(c)-7 for treatment of certain types of fees excluded in 
determining the annual percentage rate for the periodic statement.)
    Paragraph 4(c)(5).
    1. Seller's points. The seller's points mentioned in 
Sec. 226.4(c)(5) include any charges imposed by the creditor upon the 
non-creditor seller of property for providing credit to the buyer or for 
providing credit on certain terms. These charges are excluded from the 
finance charge even if they are passed on to the buyer, for example, in 
the form of a higher sales price. Seller's points are frequently 
involved in real estate transactions guaranteed or insured by 
governmental agencies. A commitment fee paid by a non-creditor seller 
(such as a real estate developer) to the creditor should be treated as 
seller's points. Buyer's points (that is, points charged to the buyer by 
the creditor), however, are finance charges.
    2. Other seller-paid amounts. Mortgage insurance premiums and other 
charges are sometimes paid at or before consummation or settlement on 
the borrower's behalf by a noncreditor seller. In such cases, the 
creditor should treat the payment made by the seller as seller's points 
and exclude it from the finance charge. A creditor who gives disclosures 
before the payment has been made should base them on the best 
information reasonably available, as called for by the estimate 
provisions of the regulation.
    Paragraph 4(c)(6).
    1. Lost interest. Certain federal and state laws mandate a 
percentage differential between the interest rate paid on a deposit and 
the rate charged on a loan secured by that deposit. In some situations 
because of usury limits the creditor must reduce the interest rate paid 
on the deposit and, as a result, the consumer loses some of the interest 
that would otherwise have been earned. Under Sec. 226.4(c)(6), such lost 
interest need not be included in the finance charge. This rule applies 
only to an interest reduction imposed because a rate differential is 
required by law and a usury limit precludes compliance by any other 
means. If the creditor imposes a differential that exceeds that 
required, only the lost interest attributable to the excess amount is a 
finance charge. (See the commentary to Sec. 226.4(a).)
    Paragraph 4(c)(7).
    1. Real estate or residential mortgage transaction charges. The list 
of charges in Sec. 226.4(c)(7) applies both to residential mortgage 
transactions (which may include, for example, the purchase of a mobile 
home) and to other transactions secured by real estate. The fees are 
excluded from the finance charge even if the services for which the fees 
are imposed are performed by the creditor's employees rather than by a 
third party. In addition, the cost of verifying or confirming 
information connected to the item is also excluded. For example, credit 
report fees cover not only the cost of the report, but also the cost of 
verifying information in the report. In all cases, charges excluded 
under Sec. 226.4(c)(7) must be bona fide and reasonable.
    2. Lump sum charges. If a lump sum charged for several services 
includes a charge that is not excludable, a portion of the total should 
be allocated to that service and included in the finance charge. 
However, a lump sum charged for conducting or attending a closing (for 
example, by a lawyer or a title company) is excluded from the finance 
charge if the charge is primarily for services related to items listed 
in Sec. 226.4(c)(7) (for example, reviewing or completing documents), 
even if other incidental services such as explaining various documents 
or disbursing funds for the parties are performed. The entire charge is 
excluded even if a fee for the incidental services would be a finance 
charge if it were imposed separately.
    3. Charges assessed during the loan term. Real estate or residential 
mortgage transaction charges excluded under Sec. 226.4(c)(7) are those 
charges imposed solely in connection with the initial decision to grant 
credit. This would include, for example, a fee to search for tax liens 
on the property or to determine if flood insurance is required. The 
exclusion

[[Page 311]]

does not apply to fees for services to be performed periodically during 
the loan term, regardless of when the fee is collected. For example, a 
fee for one or more determinations during the loan term of the current 
tax lien status or flood insurance requirements is a finance charge, 
regardless of whether the fee is imposed at closing, or when the service 
is performed. If a creditor is uncertain about what portion of a fee to 
be paid at consummation or loan closing is related to the initial 
decision to grant credit, the entire fee may be treated as a finance 
charge.
    4(d) Insurance.
    1. General. Section 226.4(d) permits insurance premiums and charges 
to be excluded from the finance charge. The required disclosures must be 
made in writing. The rules on location of insurance disclosures for 
closed-end transactions are in Sec. 226.17(a).
    2. Timing of disclosures. If disclosures are given early, for 
example under Sec. 226.17(f) or Sec. 226.19(a), the creditor need not 
redisclose if the actual premium is different at the time of 
consummation. If insurance disclosures are not given at the time of 
early disclosure and insurance is in fact written in connection with the 
transaction, the disclosures under Sec. 226.4(d) must be made in order 
to exclude the premiums from the finance charge.
    3. Premium rate increases. The creditor should disclose the premium 
amount based on the rates currently in effect and need not designate it 
as an estimate even if the premium rates may increase. An increase in 
insurance rates after consummation of a closed-end credit transaction or 
during the life of an open-end credit plan does not require redisclosure 
in order to exclude the additional premium from treatment as a finance 
charge.
    4. Unit-cost disclosures. One of the transactions for which unit-
cost disclosures (such as 50 cents per year for each $100 of the amount 
financed) may be used in place of the total insurance premium involves a 
particular kind of insurance plan. For example, a consumer with a 
current indebtedness of $8,000 is covered by a plan of credit life 
insurance coverage with a maximum of $10,000. The consumer requests an 
additional $4,000 loan to be covered by the same insurance plan. Since 
the $4,000 loan exceeds, in part, the maximum amount of indebtedness 
that can be covered by the plan, the creditor may properly give the 
insurance cost disclosures on the $4,000 loan on a unit-cost basis.
    5. Required credit life insurance. Credit life, accident, health, or 
loss-of-income insurance must be voluntary in order for the premium or 
charges to be excluded from the finance charge. Whether the insurance is 
in fact required or optional is a factual question. If the insurance is 
required, the premiums must be included in the finance charge, whether 
the insurance is purchased from the creditor or from a third party. If 
the consumer is required to elect one of several options--such as to 
purchase credit life insurance, or to assign an existing life insurance 
policy, or to pledge security such as a certificate of deposit--and the 
consumer purchases the credit life insurance policy, the premium must be 
included in the finance charge. (If the consumer assigns a preexisting 
policy or pledges security instead, no premium is included in the 
finance charge. The security interest would be disclosed under 
Sec. 226.6(c) or Sec. 226.18(m). See the commentary to Sec. 226.4(b) (7) 
and (8).)
    6. Other types of voluntary insurance. Insurance is not credit life, 
accident, health, or loss-of-income insurance if the creditor or the 
credit account of the consumer is not the beneficiary of the insurance 
coverage. If such insurance is not required by the creditor as an 
incident to or a condition of credit, it is not covered by Sec. 226.4.
    7. Signatures. If the creditor offers a number of insurance options 
under Sec. 226.4(d), the creditor may provide a means for the consumer 
to sign or initial for each option, or it may provide for a single 
authorizing signature or initial with the options selected designated by 
some other means, such as a check mark. The insurance authorization may 
be signed or initialed by any consumer, as defined in Sec. 226.2(a)(11), 
or by an authorized user on a credit card account.
    8. Property insurance. To exclude property insurance premiums or 
charges from the finance charge, the creditor must allow the consumer to 
choose the insurer and disclose that fact. This disclosure must be made 
whether or not the property insurance is available from or through the 
creditor. The requirement that an option be given does not require that 
the insurance be readily available from other sources. The premium or 
charge must be disclosed only if the consumer elects to purchase the 
insurance from the creditor; in such a case, the creditor must also 
disclose the term of the property insurance coverage if it is less than 
the term of the obligation.
    9. Single interest insurance. Blanket and specific single interest 
coverage are treated the same for purposes of the regulation. A charge 
for either type of single interest insurance may be excluded from the 
finance charge if:
     The insurer waives any right of subrogation.
     The other requirements of Sec. 226.4(d)(2) are met. This 
includes, of course, giving the consumer the option of obtaining the 
insurance from a person of the consumer's choice. The creditor need not 
ascertain whether the consumer is able to purchase the insurance from 
someone else.

    10. Single-interest insurance defined. The term single-interest 
insurance as used in the

[[Page 312]]

regulation refers only to the types of coverage traditionally included 
in the term vendor's single-interest insurance (or VSI), that is, 
protection of tangible property against normal property damage, 
concealment, confiscation, conversion, embezzlement, and skip. Some 
comprehensive insurance policies may include a variety of additional 
coverages, such as repossession insurance and holder-in-due-course 
insurance. These types of coverage do not constitute single-interest 
insurance for purposes of the regulation, and premiums for them do not 
qualify for exclusion from the finance charge under Sec. 226.4(d). If a 
policy that is primarily VSI also provides coverages that are not VSI or 
other property insurance, a portion of the premiums must be allocated to 
the nonexcludable coverages and included in the finance charge. However, 
such allocation is not required if the total premium in fact 
attributable to all of the non-VSI coverages included in the policy is 
$1.00 or less (or $5.00 or less in the case of a multi-year policy).
    11. Initial term. The initial term of insurance coverage determines 
the period for which a premium amount must be disclosed. In some cases 
the initial term is clear, for example, a property insurance policy on 
an automobile written for one year (even though the term of the credit 
transaction is four years) or a credit life insurance policy for the 
term of the credit transaction purchased by paying or financing a single 
premium. In other cases, however, it may not be clear what the initial 
term of the insurance is, for example, when the consumer agrees to pay a 
premium that is assessed periodically and the consumer is under no 
obligation to continue making the payments. In cases such as this, the 
cost disclosure may be made on the basis of a premium for one year of 
insurance coverage. The premium must be clearly labeled as being for one 
year.
    12. Loss-of-income insurance. The loss-of-income insurance mentioned 
in Sec. 226.4(d) includes involuntary unemployment insurance, which 
provides that some or all of the consumer's payments will be made if the 
consumer becomes unemployed involuntarily.
    4(e) Certain security interest charges.
    1. Examples.
    i. Excludable charges. Sums must be actually paid to public 
officials to be excluded from the finance charge under Sec. 226.4(e)(1). 
Examples are charges or other fees required for filing or recording 
security agreements, mortgages, continuation statements, termination 
statements, and similar documents, and intangible property or other 
taxes imposed by the state solely on the creditor and payable by the 
consumer (if the tax must be paid to record a security agreement).
    ii. Charges not excludable. If the obligation is between the 
creditor and a third party (an assignee, for example), charges or other 
fees for filing or recording security agreements, mortgages, 
continuation statements, termination statements, and similar documents 
relating to that obligation are not excludable from the finance charge 
under this section.
    2. Itemization. The various charges described in Sec. 226.4(e)(1) 
may be totaled and disclosed as an aggregate sum, or they may be 
itemized by the specific fees and taxes imposed. If an aggregate sum is 
disclosed, a general term such as security interest fees or `'filing 
fees'' may be used.
    3. Notary fees. In order for a notary fee to be excluded under 
Sec. 226.4(e)(1), all of the following conditions must be met:
     The document to be notarized is one used to perfect, 
release, or continue a security interest.
     The document is required by law to be notarized.
     A notary is considered a public official under applicable 
law.
     The amount of the fee is set or authorized by law.
    4. Non-filing insurance. The exclusion in Sec. 226.4(e)(2) is 
available only if non-filing insurance is purchased. If the creditor 
collects and simply retains a fee as a sort of self-insurance against 
non-filing it may not be excluded from the finance charge. If the non-
filing insurance premium exceeds the amount of the fees excludable from 
the finance charge under Sec. 226.4(e)(1), only the excess is a finance 
charge. For example:
     The fee for perfecting a security interest is $5.00 and the 
fee for releasing the security interest is $3.00. The creditor charges 
$10.00 for non-filing insurance. Only $8.00 of the $10.00 is excludable 
from the finance charge.
    4(f) Prohibited offsets.
    1. Earnings on deposits or investments. The rule that the creditor 
shall not deduct any earnings by the consumer or deposits or investments 
applies whether or not the creditor has a security interest in the 
property.

                               References

    Statute: Sections 106, 167, and 171(c).
    Other sections: Sections 226.9(d) and 226.12.
    Previous regulation: Section 226.4 and Interpretations Secs. 226.401 
through 226.407.
    1981 changes: While generally continuing the rules under the 
previous regulation, Sec. 226.4 reflects amendments to section 106 of 
the act and makes certain other changes in the rules for determining the 
finance charge. For example, Sec. 226.4(a) expressly excludes from the 
finance charge amounts payable in comparable cash transactions. Section 
226.8(o) of the previous regulation, dealing with discounts for prompt 
payment of a credit sale, was deleted in the revised regulation since 
the general test for a finance charge now focuses on a comparison of 
cash and credit transactions. With respect to various

[[Page 313]]

exclusions from the finance charge: application fees imposed on all 
applicants are no longer finance charges; continuing to extend credit to 
a consumer is no longer a controlling test for determining whether a 
late payment charge is bona fide; seller's points are not to be included 
in the finance charge; and the special exclusions for real estate 
transactions apply to all residential mortgage transactions.
    The simplified rules for excluding insurance from the finance charge 
allow unit-cost disclosure in certain closed-end credit transactions; 
permit initials as well as signatures on the authorization; permit any 
consumer to authorize insurance for other consumers; and delete the 
requirement that the authorization be separately dated.

                       Subpart B--Open-End Credit

             Section 226.5--General Disclosure Requirements

    5(a) Form of disclosures.
    Paragraph 5(a)(1).
    1. Clear and conspicuous. The clear and conspicuous standard 
requires that disclosures be in a reasonably understandable form. It 
does not require that disclosures be segregated from other material or 
located in any particular place on the disclosure statement, or that 
numerical amounts or percentages be in any particular type size. The 
standard does not prohibit:

     Pluralizing required terminology (finance charge and annual 
percentage rate).
     Adding to the required disclosures such items as 
contractual provisions, explanations of contract terms, state 
disclosures, and translations.
     Sending promotional material with the required disclosures.
     Using commonly accepted or readily understandable 
abbreviations (such as mo. for month or TX for Texas) in making any 
required disclosures.
     Using codes or symbols such as APR (for annual percentage 
rate), FC (for finance charge), or Cr (for credit balance), so long as a 
legend or description of the code or symbol is provided on the 
disclosure statement.

    2. Integrated document. The creditor may make both the initial 
disclosures (Sec. 226.6) and the periodic statement disclosures 
(Sec. 226.7) on more than one page, and use both the front and the 
reverse sides, so long as the pages constitute an integrated document. 
An integrated document would not include disclosure pages provided to 
the consumer at different times or disclosures interspersed on the same 
page with promotional material. An integrated document would include, 
for example:

     Multiple pages provided in the same envelope that cover 
related material and are folded together, numbered consecutively, or 
clearly labelled to show that they relate to one another.
     A brochure that contains disclosures and explanatory 
material about a range of services the creditor offers, such as credit, 
checking account, and electronic fund transfer features.

    Paragraph 5(a)(2).
    1. When disclosures must be more conspicuous. The terms finance 
charge and annual percentage rate, when required to be used with a 
number, must be disclosed more conspicuously than other required 
disclosures, except in the two cases provided in footnote 9. At the 
creditor's option, finance charge and annual percentage rate may also be 
disclosed more conspicuously than the other required disclosures even 
when the regulation does not so require. The following examples 
illustrate these rules:

     In disclosing the annual percentage rate as required by 
Sec. 226.6(a)(2), the term annual percentage rate is subject to the more 
conspicuous rule.
     In disclosing the amount of the finance charge, required by 
Sec. 226.7(f), the term finance charge is subject to the more 
conspicuous rule.
     Although neither finance charge nor annual percentage rate 
need be emphasized when used as part of general informational material 
or in textual descriptions of other terms, emphasis is permissible in 
such cases. For example, when the terms appear as part of the 
explanations required under Sec. 226.6(a) (3) and (4), they may be 
equally conspicuous as the disclosures required under Secs. 226.6(a)(2) 
and 226.7(g).

    2. Making disclosures more conspicuous. In disclosing the terms 
finance charge and annual percentage rate more conspicuously, only the 
words finance charge and annual percentage rate should be accentuated. 
For example, if the term total finance charge is used, only finance 
charge should be emphasized. The disclosures may be made more 
conspicuous by, for example:

     Capitalizing the words when other disclosures are printed 
in lower case.
     Putting them in bold print or a contrasting color.
     Underlining them.
     Setting them off with asterisks.
     Printing them in larger type.

    3. Disclosure of figures--exception to more conspicuous rule. The 
terms annual percentage rate and finance charge need not be more 
conspicuous than figures (including, for example, numbers, percentages, 
and dollar signs).
    5(b) Time of disclosures.
    5(b)(1) Initial disclosures.
    1. Disclosure before the first transaction. The rule that the 
initial disclosure statement

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must be furnished ``before the first transaction'' requires delivery of 
the initial disclosure statement before the consumer becomes obligated 
on the plan. For example, the initial disclosures must be given before 
the consumer makes the first purchase (such as when a consumer opens a 
credit plan and makes purchases contemporaneously at a retail store), 
receives the first advance, or pays any fees or charges under the plan 
other than an application fee or refundable membership fee (see below). 
The prohibition on the payment of fees other than application or 
refundable membership fees before initial disclosures are provided does 
not apply to home equity plans subject to Sec. 226.5b. See the 
commentary to Sec. 226.5b(h) regarding the collection of fees for home 
equity plans covered by Sec. 226.5b.

     If the consumer pays a membership fee before receiving the 
Truth in Lending disclosures, or the consumer agrees to the imposition 
of a membership fee at the time of application and the Truth in Lending 
disclosure statement is not given at that time, disclosures are timely 
as long as the consumer, after receiving the disclosures, can reject the 
plan. The creditor must refund the membership fee if it has been paid, 
or clear the account if it has been debited to the consumer's account.
     If the consumer receives a cash advance check at the same 
time the Truth in Lending disclosures are provided, disclosures are 
still timely if the consumer can, after receiving the disclosures, 
return the cash advance check to the creditor without obligation (for 
example, without paying finance charges).
     Initial disclosures need not be given before the imposition 
of an application fee under Sec. 226.4(c)(1).
     If, after receiving the disclosures, the consumer uses the 
account, pays a fee, or negotiates a cash advance check, the creditor 
may consider the account not rejected for purposes of this section.

    2. Reactivation of suspended account. If an account is temporarily 
suspended (for example, because the consumer has exceeded a credit 
limit, or because a credit card is reported lost or stolen) and then is 
reactivated, no new initial disclosures are required.
    3. Reopening closed account. If an account has been closed (for 
example, due to inactivity, cancellation, or expiration) and then is 
reopened, new initial disclosures are required. No new initial 
disclosures are required, however, when the account is closed merely to 
assign it a new number (for example, when a credit card is reported lost 
or stolen) and the new account then continues on the same terms.
    4. Converting closed-end to open-end credit. If a closed-end credit 
transaction is converted to an open-end credit account under a written 
agreement with the consumer, the initial disclosures under Sec. 226.6 
must be given before the consumer becomes obligated on the open-end 
credit plan. (See the commentary to Sec. 226.17 on converting open-end 
credit to closed-end credit.)
    5. Balance transfers. A creditor that solicits the transfer by a 
consumer of outstanding balances from an existing account to a new open-
end plan must comply with Sec. 226.6 before the balance transfer occurs. 
Card issuers that are subject to the requirements of Sec. 226.5a may 
establish procedures that comply with both sections in a single 
disclosure statement.
    5(b)(2) Periodic statements.
    Paragraph 5(b)(2)(i).
    1. Periodic statements not required. Periodic statements need not be 
sent in the following cases:

     If the creditor adjusts an account balance so that at the 
end of the cycle the balance is less than $1--so long as no finance 
charge has been imposed on the account for that cycle.
     If a statement was returned as undeliverable. If a new 
address is provided, however, within a reasonable time before the 
creditor must send a statement, the creditor must resume sending 
statements. Receiving the address at least 20 days before the end of a 
cycle would be a reasonable amount of time to prepare the statement for 
that cycle. For example, if an address is received 22 days before the 
end of the June cycle, the creditor must send the periodic statement for 
the June cycle. (See Sec. 226.13(a)(7).)

    2. Termination of credit privileges. When an open-end account is 
terminated without being converted to closed-end credit under a written 
agreement, the creditor must continue to provide periodic statements to 
those consumers entitled to receive them under Sec. 226.5(b)(2)((i) (for 
example, when an open-end credit plan ends and consumers are paying off 
outstanding balances) and must continue to follow all of the other open-
end credit requirements and procedures in subpart B.
    Paragraph 5(b)(2)(ii).
    1. 14-day rule. The 14-day rule for mailing or delivering periodic 
statements does not apply if charges (for example, transaction or 
activity charges) are imposed regardless of the timing of a periodic 
statement. The 14-day rule does apply, for example:

     If current debits retroactively become subject to finance 
charges when the balance is not paid in full by a specified date.
     If charges other than finance charges will accrue when the 
consumer does not make timely payments (for example, late payment 
charges or charges for exceeding a credit limit).


[[Page 315]]


    2. Computer malfunction. Footnote 10 does not extend to the failure 
to provide a periodic statement because of computer malfunction.
    3. Calling for periodic statements. The creditor may permit 
consumers to call for their periodic statements, but may not require 
them to do so. If the consumer wishes to pick up the statement and the 
plan has a free-ride period, the statement must be made available in 
accordance with the 14-day rule.
    5(c) Basis of disclosures and use of estimates.
    1. Legal obligation. The disclosures should reflect the credit terms 
to which the parties are legally bound at the time of giving the 
disclosures.

     The legal obligation is determined by applicable state or 
other law.
     The fact that a term or contract may later be deemed 
unenforceable by a court on the basis of equity or other grounds does 
not, by itself, mean that disclosures based on that term or contract did 
not reflect the legal obligation.
     The legal obligation normally is presumed to be contained 
in the contract that evidences the agreement. But this may be rebutted 
if another agreement between the parties legally modifies that contract.

    2. Estimates--obtaining information. Disclosures may be estimated 
when the exact information is unknown at the time disclosures are made. 
Information is unknown if it is not reasonably available to the creditor 
at the time disclosures are made. The reasonably available standard 
requires that the creditor, acting in good faith, exercise due diligence 
in obtaining information. In using estimates, the creditor is not 
required to disclose the basis for the estimated figures, but may 
include such explanations as additional information. The creditor 
normally may rely on the representations of other parties in obtaining 
information. For example, the creditor might look to insurance companies 
for the cost of insurance.
    3. Estimates--redisclosure. If the creditor makes estimated 
disclosures, redisclosure is not required for that consumer, even though 
more accurate information becomes available before the first 
transaction. For example, in an open-end plan to be secured by real 
estate, the creditor may estimate the appraisal fees to be charged; such 
an estimate might reasonably be based on the prevailing market rates for 
similar appraisals. If the exact appraisal fee is determinable after the 
estimate is furnished but before the consumer receives the first advance 
under the plan, no new disclosure is necessary.
    5(d) Multiple creditors; multiple consumers.
    1. Multiple creditors. Under Sec. 226.5(d):

     Creditors must choose which of them will make the 
disclosures.
     A single, complete set of disclosures must be provided, 
rather than partial disclosures from several creditors.
     All disclosures for the open-end credit plan must be given, 
even if the disclosing creditor would not otherwise have been obligated 
to make a particular disclosure.
     In some open-end credit programs involving multiple 
creditors, the consumer has the option (for example, at the end of a 
billing cycle) to pay creditor A directly or to transfer to creditor B 
all or part of the amount owing. If the consumer elects the latter 
option, the consumer no longer is obligated to creditor A for the 
specific amount(s) transferred. In such a case, creditor A and creditor 
B may send separate periodic statements that reflect the separate 
obligations owed to each.

    2. Multiple consumers. Disclosures may be made to either obligor on 
a joint account. Disclosure responsibilities are not satisfied by giving 
disclosures to only a surety or guarantor for a principal obligor or to 
an authorized user. In rescindable transactions, however, separate 
disclosures must be given to each consumer who has the right to rescind 
under Sec. 226.15.
    5(e) Effect of subsequent events.
    1. Events causing inaccuracies. Inaccuracies in disclosures are not 
violations if attributable to events occurring after disclosures are 
made. For example, when the consumer fails to fulfill a prior commitment 
to keep the collateral insured and the creditor then provides the 
coverage and charges the consumer for it, such a change does not make 
the original disclosures inaccurate. The creditor may, however, be 
required to provide a new disclosure(s) under Sec. 226.9(c).
    2. Use of inserts. When changes in a creditor's plan affect required 
disclosures, the creditor may use inserts with outdated disclosure 
forms. Any insert:

     Should clearly refer to the disclosure provision it 
replaces.
     Need not be physically attached or affixed to the basic 
disclosure statement.
     May be used only until the supply of outdated forms is 
exhausted.

                               References

    Statute: Sections 121 (a) through (c), 122 (a) and (b), 124, 127 (a) 
and (b), and 163(a).
    Other sections: Sections 226.6, 226.7, and 226.9.
    Previous regulation: Sections 226.6 (a) and (c) through (g), and 
226.7 (a) through (c).
    1981 changes: Section 226.5 implements amendments to the act and 
reflects several simplifying changes to the regulation. The use of 
required terminology, except for finance charge and annual percentage 
rate, is no longer required. Type size requirements have been deleted. 
Initial and periodic statement disclosures may be multi-page, so long as

[[Page 316]]

they constitute an integrated statement. New rules are provided for the 
basis of disclosures and for the use of estimates. The rules for credit 
plans involving multiple creditors or multiple consumers now provide 
that only one creditor need make the disclosures and that the 
disclosures need be made to only one primarily liable consumer.

  Section 226.5a  Credit and Charge Card Applications and Solicitations

    1. General. Section 226.5a generally requires that credit 
disclosures be contained in application forms and preapproved 
solicitations initiated by a card issuer to open a credit or charge card 
account. (See the commentary to Sec. 226.5a(a)(3) and (e) for 
exceptions; see also Sec. 226.2(a)(15) and accompanying commentary for 
the definition of charge card.)
    2. Combining disclosures. The initial disclosures required by 
Sec. 226.6 do not substitute for the disclosures required by 
Sec. 226.5a; however, a card issuer may establish procedures so that a 
single disclosure statement meets the requirements of both sections. For 
example, if a card issuer in complying with Sec. 226.5a(e)(2) provides 
all the applicable disclosures required under Sec. 226.6, in a form that 
the consumer may keep and in accordance with the other format and timing 
requirements for that section, the issuer satisfies the initial 
disclosure requirements under Sec. 226.6 as well as the disclosure 
requirements of Sec. 226.5a(e)(2). Or if, in complying with 
Sec. 226.5a(c) or Sec. 226.5a(d)(2), a card issuer provides an 
integrated document that the consumer may keep, and provides the 
Sec. 226.5a disclosures (in a tabular format) along with the additional 
disclosures required under Sec. 226.6 (presented outside of the table), 
the card issuer satisfies the requirements of both Secs. 226.5a and 
226.6.

                          5a(a)  General Rules

                      5a(a)(2)  Form of Disclosures

    1. Prominent location. Certain of the required disclosures provided 
on or with an application or solicitation must be prominently located--
that is, readily noticeable to the consumer. There are, however, no 
requirements that the disclosures be in any particular location or in 
any particular type size or typeface.
    2. Multiple accounts or varying terms. If a tabular format is 
required to be used, card issuers offering several types of accounts may 
disclose the various terms for the accounts in a single table or may 
provide a separate table for each account. Similarly, if rates or other 
terms vary from state to state, card issuers may list the states and the 
various disclosures in a single table or in separate tables.
    3. Additional information. The table containing the disclosures 
required by Sec. 226.5a should contain only the information required or 
permitted by this section. (See the commentary to Sec. 226.5a(b) for 
guidance on information permitted in the table.) Other credit 
information may be presented on or with an application or solicitation, 
provided such information appears outside the required table.
    4. Location of certain disclosures. A card issuer has the option of 
disclosing any of the fees in Sec. 226.5a(b) (8) through (10) in the 
required table or outside the table.
    5. Terminology. In general, Sec. 226.5a(a)(2)(iv) requires that the 
terminology used for the disclosures specified in Sec. 226.5a(b) be 
consistent with that used in the disclosures under Secs. 226.6 and 
226.7. This standard requires that the Sec. 226.5a(b) disclosures be 
close in meaning to those under Secs. 226.6 and 226.7; however, the 
terminology used need not be identical. In addition, 
Sec. 226.5a(a)(2)(i) requires that the headings, content, and format of 
the tabular disclosures be substantially similar, but need not be 
identical, to the tables in Appendix G. A special rule applies to the 
grace period disclosure, however: the term grace period must be used, 
either in the heading or in the text of the disclosure.
    6. Deletion of inapplicable disclosures. Generally, disclosures need 
only be given as applicable. Card issuers may, therefore, delete 
inapplicable headings and their corresponding boxes in the table. For 
example, if no transaction fee is imposed for purchases, the disclosure 
form may contain the heading Transaction fee for purchases and a box 
showing none, or the heading and box may be deleted from the table. 
There is an exception for the grace period disclosure, however: even if 
no grace period exists, that fact must be stated.

                          5a(a)(3)  Exceptions

    1. Coverage. Certain exceptions to the coverage of Sec. 226.5a are 
stated in Sec. 226.5a(a)(3); in addition, the requirements of 
Sec. 226.5a do not apply to the following:
     Lines of credit accessed solely by account numbers
     Addition of a credit or charge card to an existing open-end 
plan
    2. Noncoverage of consumer initiated requests. Applications provided 
to a consumer upon request are not covered by Sec. 226.5a, even if the 
request is made in response to the card issuer's invitation to apply for 
a card account. To illustrate, if a card issuer invites consumers to 
call a toll-free number or to return a response card to obtain an 
application, the application sent in response to the consumer's request 
need not contain the disclosures required under Sec. 226.5a. Similarly, 
if the card issuer invites consumers to call and make an oral 
application on the telephone, Sec. 226.5a does not apply to the 
application made by the consumer. If, however, the card issuer calls a 
consumer or initiates a telephone discussion with a consumer about

[[Page 317]]

opening a card account and contemporaneously takes an oral application, 
such applications are subject to Sec. 226.5a, specifically 
Sec. 226.5a(d).
    3. General purpose applications. The requirements of this section do 
not apply to general purpose applications unless the application, or 
material accompanying it, indicates that it can be used to open a credit 
or charge card account.

                5a(a)(5)  Certain Fees that Vary by State

    1. Manner of disclosing range. If the card issuer discloses a range 
of fees instead of disclosing the amount of the fee imposed in each 
state, the range may be stated as the lowest authorized fee (zero, if 
there are one or more states where no fee applies) to the highest 
authorized fee.

                       5a(b)  Required Disclosures

                    5a(b)(1)  Annual Percentage Rate

    1. Periodic rate. The periodic rate, expressed as such, may be 
disclosed in the table in addition to the required disclosure of the 
corresponding annual percentage rate.
    2. Variable-rate accounts--definition. For purposes of 
Sec. 226.5a(b)(1), a variable-rate account exists when rate changes are 
part of the plan and are tied to an index or formula. (See the 
commentary to Sec. 226.6(a)(2) for examples of variable-rate plans.)
    3. Variable-rate accounts--rates in effect. For variable-rate 
disclosures in direct mail applications and solicitations subject to 
Sec. 226.5a(c), and in applications and solicitations made available to 
the general public subject to Sec. 226.5a(e), the rules concerning 
accuracy of the annual percentage rate are stated in 
Sec. 226.5a(b)(1)(ii). For variable-rate disclosures in telephone 
applications and solicitations subject to Sec. 226.5a(d), the card 
issuer must provide an annual percentage rate currently applicable when 
oral disclosures are provided under Sec. 226.5a(d)(1). For the alternate 
disclosures under Sec. 226.5a(d)(2), the card issuer must provide the 
annual percentage rate in effect at the time the disclosures are mailed 
or delivered. A rate in effect also includes the rate as of a specified 
date (which rate is then updated from time to time, for example, each 
calendar month) or an estimated rate provided in accordance with 
Sec. 226.5(c).
    4. Variable-rate accounts--other disclosures. In describing how the 
applicable rate will be determined, the card issuer must identify the 
index or formula and disclose any margin or spread added to the index or 
formula in setting the rate. The card issuer may disclose the margin or 
spread as a range of the highest and lowest margins that may be 
applicable to the account. A disclosure of any applicable limitations on 
rate increases or decreases may also be included in the table.
    5. Introductory rates--discounted rates. If the initial rate is 
temporary and is lower than the rate that will apply after the temporary 
rate expires, the card issuer must disclose the annual percentage rate 
that would otherwise apply to the account. In a fixed-rate account, the 
card issuer must disclose the rate that will apply after the 
introductory rate expires. In a variable-rate account, the card issuer 
must disclose a rate based on the index or formula applicable to the 
account in accordance with the rules in Sec. 226.5a(b)(1)(ii) and 
comment 5a(b)(1)-3. An initial discounted rate may be provided in the 
table along with the rate required to be disclosed if the card issuer 
also discloses the time period during which the introductory rate will 
remain in effect.
    6. Introductory rates--premium rates. If the initial rate is 
temporary and is higher than the permanently applicable rate, the card 
issuer must disclose the initial rate. The issuer may disclose in the 
table the rate that would otherwise apply if the issuer also discloses 
the time period during which the initial rate will remain in effect.

               5a(b)(2)  Fees for Issuance or Availability

    1. Membership fees. Membership fees for opening an account must be 
disclosed under this paragraph. A membership fee to join an organization 
that provides a credit or charge card as a privilege of membership must 
be disclosed only if the card is issued automatically upon membership. 
Such a fee need not be disclosed if membership results merely in 
eligibility to apply for an account.
    2. Enhancements. Fees for optional services in addition to basic 
membership privileges in a credit or charge card account (for example, 
travel insurance or card-registration services) should not be disclosed 
in the table if the basic account may be opened without paying such 
fees.
    3. One-time fees. Disclosure of non-periodic fees is limited to fees 
related to opening the account, such as one-time membership fees. The 
following are examples of fees that should not be disclosed in the 
table:
     Fees for reissuing a lost or stolen card
     Statement reproduction fees
     Application fees described in Sec. 226.4(c)(1)
    4. Waived or reduced fees. If fees required to be disclosed are 
waived or reduced for a limited time, the introductory fees or the fact 
of fee waivers may be provided in the table in addition to the required 
fees if the card issuer also discloses how long the fees or waivers will 
remain in effect.
    5. Fees stated as annual amount. Fees imposed periodically must be 
stated as an annual total. For example, if a fee is imposed quarterly, 
the disclosures would state the total amount of the fees for one year. 
(See, however, the commentary to Sec. 226.9(e) with regard to disclosure 
of such fees in renewal notices.)

[[Page 318]]

                      5a(b)(4)  Transaction Charges

    1. Charges imposed by person other than card issuer. Charges imposed 
by a third party, such as a seller of goods, would not be disclosed 
under this section; the third party would be responsible for disclosing 
the charge under Sec. 226.9(d)(1).

                         5a(b)(5)  Grace Period

    1. How disclosure is made. The card issuer may, but need not, refer 
to the beginning or ending point of any grace period and briefly state 
any conditions on the applicability of the grace period. For example, 
the grace period disclosure might read ``30 days'' or ``30 days from the 
date of the periodic statement (provided you have paid your previous 
balance in full by the due date).''

                  5a(b)(6)  Balance Computation Method

    1. Form of disclosure. In cases where the card issuer uses a balance 
calculation method that is identified by name in the regulation, the 
card issuer may only disclose the name of the method in the table. In 
cases where the card issuer uses a balance computation method that is 
not identified by name in the regulation, the disclosure in the table 
should clearly explain the method in as much detail as set forth in the 
descriptions of balance methods in section 226.5a(g). The explanation 
need not be as detailed as that required for the disclosures under 
Sec. 226.6(a)(3). (See the commentary to Sec. 226.5a(g) for guidance on 
particular methods.)
    2. Determining the method. In determining the appropriate balance 
computation method for purchases for disclosure purposes, the card 
issuer must assume that a purchase balance will exist at the end of any 
grace period. Thus, for example, if the average daily balance method 
will include new purchases or cover two billing cycles only if purchase 
balances are not paid within the grace period, the card issuer would 
disclose the name of the average daily balance method that includes new 
purchases or covers two billing cycles, respectively. The card issuer 
should not assume the existence of a purchase balance, however, in 
making other disclosures under Sec. 226.5a(b).

               5a(b)(7)  Statement on Charge Card Payments

    1. Applicability and content. The disclosure that charges are 
payable upon receipt of the periodic statement is applicable only to 
charge card accounts. In making this disclosure, the card issuer may 
make such modifications as are necessary to more accurately reflect the 
circumstances of repayment under the account. For example, the 
disclosure might read, ``Charges are due and payable upon receipt of the 
periodic statement and must be paid no later than 15 days after receipt 
of such statement.''

                       5a(b)(8)  Cash Advance Fee

    1. Applicability. The card issuer must disclose only those fees it 
imposes for a cash advance that are finance charges under Sec. 226.4. 
For example, a charge for a cash advance at an automated teller machine 
(ATM) would be disclosed under Sec. 226.5a(b)(8) if no similar charge is 
imposed for ATM transactions not involving an extension of credit. (See 
comment 4(a)-5 for a description of such a fee.)

                       5a(b)(9)  Late Payment Fee

    1. Applicability. The disclosure of the fee for a late payment 
includes only those fees that will be imposed for actual, unanticipated 
late payments. (See the commentary to Sec. 226.4(c)(2) for additional 
guidance on late payment fees.)

                      5a(b)(10)  Over-the-Limit Fee

    1. Applicability. The disclosure of fees for exceeding a credit 
limit does not include fees for other types of default or for services 
related to exceeding the limit. For example, no disclosure is required 
of fees for reinstating credit privileges or fees for the dishonor of 
checks on an account that, if paid, would cause the credit limit to be 
exceeded.

            5a(c)  Direct Mail Applications and Solicitations

    1. Accuracy. In general, disclosures in direct mail applications and 
solicitations must be accurate as of the time of mailing. (An accurate 
variable annual percentage rate is one in effect within 60 days before 
mailing.)
    2. Mailed publications. Applications or solicitations contained in 
generally available publications mailed to consumers (such as 
subscription magazines) are subject to the requirements applicabIe to 
take-ones in Sec. 226.5a(e), rather than the direct mail requirements of 
Sec. 226.5a(c). However, if a primary purpose of a card issuer's mailing 
is to offer credit or charge card accounts--for example, where a card 
issuer ``prescreens'' a list of potential cardholders using credit 
criteria, and then mails to the targeted group its catalog containing an 
application or a solicitation for a card account--the direct mail rules 
apply. In addition, a card issuer may use a single application form as a 
take-one (in racks in public locations, for example) and for direct 
mailings, if the card issuer complies with the requirements of 
Sec. 226.5a(c) even when the form is used as a take-one--that is, by 
presenting the required Sec. 226.5a disclosures in a tabular format. 
When used in a direct mailing, the credit term disclosures must be 
accurate as of the mailing date whether or not the Sec. 226.5a(e)(1) 
(ii) and (iii) disclosures are included; when used in a take-one, the 
disclosures must be accurate for as long as the take-one forms remain 
available to the public if the Sec. 226.5a(e)(1) (ii) and (iii) 
disclosures are omitted. (If those

[[Page 319]]

disclosures are included in the take-one, the credit term disclosures 
need only be accurate as of the printing date.)

             5a(d)  Telephone Applications and Solicitations

    1. Coverage. This paragraph applies if:
     A telephone conversation between a card issuer and consumer 
may result in the issuance of a card as a consequence of an issuer-
initiated offer to open an account for which the issuer does not require 
any application (that is, a preapproved telephone solicitation).
     The card issuer initiates the contact and at the same time 
takes application information over the telephone.
    This paragraph does not apply to:
     Telephone applications initiated by the consumer.
     Situations where no card will be issued--because, for 
example, the consumer indicates that he or she does not want the card, 
or the card issuer decides either during the telephone conversation or 
later not to issue the card.

 5a(e)  Applications and Solicitations Made Available to General Public

    1. Coverage. Applications and solicitations made available to the 
general public include what are commonly referred to as take-one 
applications typically found at counters in banks and retail 
establishments, as well as applications contained in catalogs, magazines 
and other generally available publications. In the case of credit 
unions, this paragraph applies to applications and solicitations to open 
card accounts made available to those in the general field of 
membership.
    2. Cross-selling. If a card issuer invites a consumer to apply for a 
credit or charge card (for example, where the issuer engages in cross-
selling), an application provided to the consumer at the consumer's 
request is not considered an application made available to the general 
public and therefore is not subject to Sec. 226.5a(e). For example, the 
following are not covered:
     A consumer applies in person for a car loan at a financial 
institution and the loan officer invites the consumer to apply for a 
credit or charge card account; the consumer accepts the invitation.
     An employee of a retail establishment, in the course of 
processing a sales transaction using a bank credit card, asks a customer 
if he or she would like to apply for the retailer's credit or charge 
card; the customer responds affirmatively.
    3. Toll-free telephone number. If a card issuer, in complying with 
any of the disclosure options of Sec. 226.5a(e), provides a telephone 
number for consumers to call to obtain credit information, the number 
must be toll-free for nonlocal calls made from an area code other than 
the one used in the card issuer's dialing area. Alternatively, a card 
issuer may provide any telephone number that allows a consumer to call 
for information and reverse the telephone charges.

           5a(e)(1)  Disclosure of Required Credit Information

    1. Date of printing. Disclosure of the month and year fulfills the 
requirement to disclose the date an application was printed.
    2. Form of disclosures. The disclosures specified in 
Sec. 226.5a(e)(1) (ii) and (iii) may appear either in or outside the 
table containing the required credit disclosures.

           5a(e)(2)  Inclusion of Certain Initial Disclosures

    1. Accuracy of disclosures. The disclosures required by 
Sec. 226.5a(e)(2) generally must be current as of the time they are made 
available to the public. Disclosures are considered to be made available 
at the time they are placed in public locations (in the case of take-
ones) or mailed to consumers (in the case of publications).
    2. Accuracy--exception. If a card issuer discloses all the 
information required by Sec. 226.5a(e)(1)(ii) on the application or 
solicitation, the disclosures under Sec. 226.5a(e)(2) need only be 
current as of the date of printing. (A current variable annual 
percentage rate would be one in effect within 30 days before printing.)

              5a(e)(3)  No Disclosure of Credit Information

    1. When disclosure option available. A card issuer may use this 
option only if the issuer does not include on or with the application or 
solicitation any statement that refers to the credit disclosures 
required by Sec. 226.5a(b). Statements such as no annual fee, low 
interest rate, favorable rates, and low costs are deemed to refer to the 
required credit disclosures and, therefore, may not be included on or 
with the solicitation or application, if the card issuer chooses to use 
this option.

          5a(e)(4)  Prompt Response to Requests for Information

    1. Prompt disclosure. Information is promptly disclosed if it is 
given within 30 days of a consumer's request for information but in no 
event later than delivery of the credit or charge card.
    2. Information disclosed. When a consumer requests credit 
information, card issuers need not provide all the required credit 
disclosures in all instances. For example, if disclosures have been 
provided in accordance with Sec. 226.5a(e) (1) or (2) and a consumer 
calls or writes a card issuer to obtain information about changes in the 
disclosures, the issuer need only provide the items of information that 
have changed from those previously disclosed on or with the application 
or solicitation. If a consumer requests information about particular 
items, the card issuer need

[[Page 320]]

only provide the requested information. If, however, the card issuer has 
made disclosures in accordance with the option in Sec. 226.5a(e)(3) and 
a consumer calls or writes the card issuer requesting information about 
costs, all the required disclosure information must be given.
    3. Manner of response. A card issuer's response to a consumer's 
request for credit information may be provided orally or in writing, 
regardless of the manner in which the consumer's request is received by 
the issuer. Furthermore, the card issuer may provide the information 
listed in either Sec. 226.5a(e) (1) or (2). Information provided in 
writing need not be in a tabular format.

5a(f)  Special Charge Card Rule--Card Issuer and Person Extending Credit 
                           Not the Same Person

    1. Duties of charge card issuer. Although the charge card issuer is 
not required to disclose information about the underlying open-end 
credit plan if the card issuer meets the conditions set forth in 
Sec. 226.5a(f), the card issuer must disclose the information relating 
to the charge card plan itself.
    2. Duties of creditor maintaining open-end plan. Section 226.5a does 
not impose disclosure requirements on the creditor that maintains the 
underlying open-end credit plan. This is the case even though the 
creditor offering the open-end credit plan may be considered an agent of 
the charge card issuer. (See comment 2(a)(7)-1.)
    3. Form of disclosures. The disclosures required by Sec. 226.5a(f) 
may appear either in or outside the table containing the required credit 
disclosures in circumstances where a tabular format is required.

               5a(g)  Balance Computation Methods Defined

    1. Daily balance method. Card issuers using the daily balance method 
may disclose it using the name average daily balance (including new 
purchases) or average daily balance (excluding new purchases), as 
appropriate. Alternatively, such card issuers may explain the method. 
(See comment 7(e)-5 for a discussion of the daily balance method.)
    2. Two-cycle average daily balance methods. The two-cycle average 
daily balance methods described in Sec. 226.5a(g)(2) (i) and (ii) 
include those methods in which the average daily balances for two 
billing cycles may be added together to compute the finance charge. Such 
methods also include those in which a periodic rate is applied 
separately to the balance in each cycle, and the resulting finance 
charges are added together. The method is a two-cycle average daily 
balance even if the finance charge is based on both the current and 
prior cycle balances only under certain circumstances, such as when 
purchases during a prior cycle were carried over into the current cycle 
and no finance charge was assessed during the prior cycle. Furthermore, 
the method is a two-cycle average daily balance method if the balances 
for both the current and prior cycles are average daily balances, even 
if those balances are figured differently. For example, the name two-
cycle average daily balance (excluding new purchases) should be used to 
describe a method in which the finance charge for the current cycle, 
figured on an average daily balance excluding new purchases, will be 
added to the finance charge for the prior cycle, figured on an average 
daily balance of only new purchases during that prior cycle.

           Section 226.5b  Requirements for Home Equity Plans

    1. Coverage. This section applies to all open-end credit plans 
secured by the consumer's dwelling, as defined in Sec. 226.2(a)(19), and 
is not limited to plans secured by the consumer's principal dwelling. 
(See the commentary to Sec. 226.3(a), which discusses whether 
transactions are consumer or business-purpose credit, for guidance on 
whether a home equity plan is subject to Regulation Z.)
    2. Changes to home equity plans entered into on or after November 7, 
1989. Section 226.9(c) applies if, by written agreement under 
Sec. 226.5b(f)(3)(iii), a creditor changes the terms of a home equity 
plan--entered into on or after November 7, 1989--at or before its 
scheduled expiration, for example, by renewing a plan on different 
terms. A new plan results, however, if the plan is renewed (with or 
without changes to the terms) after the scheduled expiration. The new 
plan is subject to all open-end credit rules, including Secs. 226.5b, 
226.6, and 226.15.
    3. Transition rules and renewals of preexistinq plans. The 
requirements of this section do not apply to home equity plans entered 
into before November 7, 1989. The requirements of this section also do 
not apply if the original consumer, on or after November 7, 1989, renews 
a plan entered into prior to that date (with or without changes to the 
terms). If, on or after November 7, 1989, a security interest in the 
consumer's dwelling is added to a line of credit entered into before 
that date, the substantive restrictions of this section apply for the 
remainder of the plan, but no new disclosures are required under this 
section.
    4. Disclosure of repayment phase--applicability of requirements. 
Some plans provide in the initial agreement for a period during which no 
further draws may be taken and repayment of the amount borrowed is made. 
All of the applicable disclosures in this section must be given for the 
repayment phase. Thus, for example, a creditor must provide payment 
information about the repayment phase as well as about the draw period, 
as required by Sec. 226.5b(d)(5). If the rate that will apply during the 
repayment phase is fixed at a known amount, the creditor must provide an 
annual percentage rate under Sec. 226.5b(d)(6)

[[Page 321]]

for that phase. If, however, a creditor uses an index to determine the 
rate that will apply at the time of conversion to the repayment phase--
even if the rate will thereafter be fixed--the creditor must provide the 
information in Sec. 226.5b(d)(12), as applicable.
    5. Payment terms--applicability of closed-end provisions and 
substantive rules. All payment terms that are provided for in the 
initial agreement are subject to the requirements of subpart B and not 
subpart C of the regulation. Payment terms that are subsequently added 
to the agreement may be subject to subpart B or to subpart C, depending 
on the circumstances. The following examples apply these general rules 
to different situations:
     If the initial agreement provides for a repayment phase or 
for other payment terms such as options permitting conversion of part or 
all of the balance to a fixed rate during the draw period, these terms 
must be disclosed pursuant to Secs. 226.5b and 226.6, and not under 
subpart C. Furthermore, the creditor must continue to provide periodic 
statements under Sec. 226.7 and comply with other provisions of subpart 
B (such as the substantive requirements of Sec. 226.5b(f)) throughout 
the plan, including the repayment phase.
     If the consumer and the creditor enter into an agreement 
during the draw period to repay all or part of the principal balance on 
different terms (for example, with a fixed rate of interest) and the 
amount of available credit will be replenished as the principal balance 
is repaid, the creditor must continue to comply with subpart B. For 
example, the creditor must continue to provide periodic statements and 
comply with the substantive requirements of Sec. 226.5b(f) throughout 
the plan.
     If the consumer and creditor enter into an agreement during 
the draw period to repay all or part of the principal balance and the 
amount of available credit will not be replenished as the principal 
balance is repaid, the creditor must give closed-end credit disclosures 
pursuant to subpart C for that new agreement. In such cases, subpart B, 
including the substantive rules, does not apply to the closed-end credit 
transaction, although it will continue to apply to any remaining open-
end credit available under the plan.
    6. Spreader clause. When a creditor holds a mortgage or deed of 
trust on the consumer's dwelling and that mortgage or deed of trust 
contains a spreader clause (also known as a dragnet or cross-
collateralization clause), subsequent occurrences such as the opening of 
an open-end plan are subject to the rules applicable to home equity 
plans to the same degree as if a security interest were taken directly 
to secure the plan, unless the creditor effectively waives its security 
interest under the spreader clause with respect to the subsequent open-
end credit extensions.

                       5b(a)  Form of Disclosures

                            5b(a)(1)  General

    1. Written disclosures. The disclosures required under this section 
must be clear and conspicuous and in writing, but need not be in a form 
the consumer can keep. (See the commentary to Sec. 226.6(e) for special 
rules when disclosures required under Sec. 226.5b(d) are given in a 
retainable form.)
    2. Disclosure of annual percentage rate--more conspicuous 
requirement. As provided in Sec. 226.5(a)(2), when the term annual 
percentage rate is required to be disclosed with a number, it must be 
more conspicuous than other required disclosures.
    3. Segregation of disclosures. While most of the disclosures must be 
grouped together and segregated from all unrelated information, the 
creditor is permitted to include information that explains or expands on 
the required disclosures, including, for example:
     Any prepayment penalty
     How a substitute index may be chosen
     Actions the creditor may take short of terminating and 
accelerating an outstanding balance
     Renewal terms
     Rebate of fees

An example of information that does not explain or expand on the 
required disclosures and thus cannot be included is the creditor's 
underwriting criteria, although the creditor could provide such 
information separately from the required disclosures.
    4. Method of providing disclosures. A creditor may provide a single 
disclosure form for all of its home equity plans, as long as the 
disclosure describes all aspects of the plans. For example, if the 
creditor offers several payment options, all such options must be 
disclosed. (See, however, the commentary to Sec. 226.5b(d)(5)(iii) and 
(d)(12) (x) and (xi) for disclosure requirements relating to these 
provisions.) If any aspects of a plan are linked together, the creditor 
must disclose clearly the relationship of the terms to each other. For 
example, if the consumer can only obtain a particular payment option in 
conjunction with a certain variable-rate feature, this fact must be 
disclosed. A creditor has the option of providing separate disclosure 
forms for multiple options or variations in features. For example, a 
creditor that offers different payment options for the draw period may 
prepare separate disclosure forms for the two payment options. A 
creditor using this alternative, however, must include a statement on 
each disclosure form that the consumer should ask about the creditor's 
other home equity programs. (This disclosure is required only for those 
programs available generally to the public. Thus, if the only other 
programs available are employee preferred-rate plans, for example, the 
creditor would not have to provide

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this statement.) A creditor that receives a request for information 
about other available programs must provide the additional disclosures 
as soon as reasonably possible.

               5b(a)(2)  Precedence of Certain Disclosures

    1. Precedence rule. The list of conditions provided at the 
creditor's option under Sec. 226.5b(d)(4)(iii) need not precede the 
other disclosures.

                       5b(b)  Time of Disclosures

    1. Mail and telephone applications. If the creditor sends 
applications through the mail, the disclosures and a brochure must 
accompany the application. If an application is taken over the 
telephone, the disclosures and brochure may be delivered or mailed 
within three business days of taking the application. If an application 
is mailed to the consumer following a telephone request, however, the 
creditor also must send the disclosures and a brochure along with the 
application.
    2. General purpose applications. The disclosures and a brochure need 
not be provided when a general purpose application is given to a 
consumer unless (1) the application or materials accompanying it 
indicate that it can be used to apply for a home equity plan or (2) the 
application is provided in response to a consumer's specific inquiry 
about a home equity plan. On the other hand, if a general purpose 
application is provided in response to a consumer's specific inquiry 
only about credit other than a home equity plan, the disclosures and 
brochure need not be provided even if the application indicates it can 
be used for a home equity plan, unless it is accompanied by promotional 
information about home equity plans.
    3. Publicly-available applications. Some creditors make applications 
for home equity plans, such as take-ones, available without the need for 
a consumer to request them. These applications must be accompanied by 
the disclosures and a brochure, such as by attaching the disclosures and 
brochure to the application form.
    4. Response cards. A creditor may solicit consumers for its home 
equity plan by mailing a response card which the consumer returns to the 
creditor to indicate interest in the plan. If the only action taken by 
the creditor upon receipt of the response card is to send the consumer 
an application form or to telephone the consumer to discuss the plan, 
the creditor need not send the disclosures and brochure with the 
response card.
    5. Denial or withdrawal of application. In situations where footnote 
10a permits the creditor a three-day delay in providing disclosures and 
the brochure, if the creditor determines within that period that an 
application will not be approved, the creditor need not provide the 
consumer with the disclosures or brochure. Similarly, if the consumer 
withdraws the application within this three-day period, the creditor 
need not provide the disclosures or brochure.
    6. Intermediary agent or broker. In determining whether or not an 
application involves an intermediary agent or broker as discussed in 
footnote 10a, creditors should consult the provisions in comment 19(b)-
3.

                     5b(c)  Duties of Third Parties

    1. Disclosure requirements. Although third parties who give 
applications to consumers for home equity plans must provide the 
brochure required under Sec. 226.5b(e) in all cases, such persons need 
provide the disclosures required under Sec. 226.5b(d) only in certain 
instances. A third party has no duty to obtain disclosures about a 
creditor's home equity plan or to create a set of disclosures based on 
what it knows about a creditor's plan. If, however, a creditor provides 
the third party with disclosures along with its application form, the 
third party must give the disclosures to the consumer with the 
application form. The duties under this section are those of the third 
party; the creditor is not responsible for ensuring that a third party 
complies with those obligations. If an intermediary agent or broker 
takes an application over the telephone or receives an application 
contained in a magazine or other publication, footnote 10a permits that 
person to mail the disclosures and brochure within three business days 
of receipt of the application. (See the commentary to Sec. 226.5b(h) 
about imposition of nonrefundable fees.)

                      5b(d)  Content of Disclosures

    1. Disclosures given as applicable. The disclosures required under 
this section need be made only as applicable. Thus, for example, if 
negative amortization cannot occur in a home equity plan, a reference to 
it need not be made.
    2. Duty to respond to requests for information. If the consumer, 
prior to the opening of a plan, requests information as suggested in the 
disclosures (such as the current index value or margin), the creditor 
must provide this information as soon as reasonably possible after the 
request.

                   5b(d)(1)  Retention of Information

    1. When disclosure not required. The creditor need not disclose that 
the consumer should make or otherwise retain a copy of the disclosures 
if they are retainable--for example, if the disclosures are not part of 
an application that must be returned to the creditor to apply for the 
plan.

[[Page 323]]

                5b(d)(2)  Conditions for Disclosed Terms

                          Paragraph 5b(d)(2)(i)

    1. Guaranteed terms. The requirement that the creditor disclose the 
time by which an application must be submitted to obtain the disclosed 
terms does not require the creditor to guarantee any terms. If a 
creditor chooses not to guarantee any terms, it must disclose that all 
of the terms are subject to change prior to opening the plan. The 
creditor also is permitted to guarantee some terms and not others, but 
must indicate which terms are subject to change.
    2. Date for obtaining disclosed terms. The creditor may disclose 
either a specific date or a time period for obtaining the disclosed 
terms. If the creditor discloses a time period, the consumer must be 
able to determine from the disclosure the specific date by which an 
application must be submitted to obtain any guaranteed terms. For 
example, the disclosure might read, ``To obtain the following terms, you 
must submit your application within 60 days after the date appearing on 
this disclosure,'' provided the disclosure form also shows the date.

                         Paragraph 5b(d)(2)(ii)

    1. Relation to other provisions. Creditors should consult the rules 
in Sec. 226.5b(g) regarding refund of fees.

                 5b(d)(4)  Possible Actions by Creditor

                          Paragraph 5b(d)(4)(i)

    1. Fees imposed upon termination. This disclosure applies only to 
fees (such as penalty or prepayment fees) that the creditor imposes if 
it terminates the plan prior to normal expiration. The disclosure does 
not apply to fees that are imposed either when the plan expires in 
accordance with the agreement or if the consumer terminates the plan 
prior to its scheduled maturity. In addition, the disclosure does not 
apply to fees associated with collection of the debt, such as attorneys 
fees and court costs, or to increases in the annual percentage rate 
linked to the consumer's failure to make payments. The actual amount of 
the fee need not be disclosed.
    2. Changes specified in the initial agreement. If changes may occur 
pursuant to Sec. 226.5b(f)(3)(i), a creditor must state that certain 
changes will be implemented as specified in the initial agreement.

                         Paragraph 5b(d)(4)(iii)

    1. Disclosure of conditions. In making this disclosure, the creditor 
may provide a highlighted copy of the document that contains such 
information, such as the contract or security agreement. The relevant 
items must be distinguished from the other information contained in the 
document. For example, the creditor may provide a cover sheet that 
specifically points out which contract provisions contain the 
information, or may mark the relevant items on the document itself. As 
an alternative to disclosing the conditions in this manner, the creditor 
may simply describe the conditions using the language in 
Secs. 226.5b(f)(2)(i)-(iii), 226.5b(f)(3)(i) (regarding freezing the 
line when the maximum annual percentage rate is reached), and 
226.5b(f)(3)(vi) or language that is substantially similar. The 
condition contained in Sec. 226.5b(f)(2)(iv) need not be stated. In 
describing specified changes that may be implemented during the plan, 
the creditor may provide a disclosure such as ``Our agreement permits us 
to make certain changes to the terms of the line at specified times or 
upon the occurrence of specified events.''
    2. Form of disclosure. The list of conditions under 
Sec. 226.5b(d)(4)(iii) may appear with the segregated disclosures or 
apart from them. If the creditor elects to provide the list of 
conditions with the segregated disclosures, the list need not comply 
with the precedence rule in Sec. 226.5b(a)(2).

                         5b(d)(5)  Payment Terms

                          Paragraph 5b(d)(5)(i)

    1. Length of the plan. The combined length of the draw period and 
any repayment period need not be stated. If the length of the repayment 
phase cannot be determined because, for example, it depends on the 
balance outstanding at the beginning of the repayment period, the 
creditor must state that the length is determined by the size of the 
balance. If the length of the plan is indefinite (for example, because 
there is no time limit on the period during which the consumer can take 
advances), the creditor must state that fact.
    2. Renewal provisions. If, under the credit agreement, a creditor 
retains the right to review a line at the end of the specified draw 
period and determine whether to renew or extend the draw period of the 
plan, the possibility of renewal or extension--regardless of its 
likelihood--should be ignored for purposes of the disclosures. For 
example, if an agreement provides that the draw period is five years and 
that the creditor may renew the draw period for an additional five 
years, the possibility of renewal should be ignored and the draw period 
should be considered five years. (See the commentary accompanying 
Sec. 226.9(c)(1) dealing with change in terms requirements.)

                         Paragraph 5b(d)(5)(ii)

    1. Determination of the minimum periodic payment. This disclosure 
must reflect how the minimum periodic payment is determined, but need 
only describe the principal and interest components of the payment.

[[Page 324]]

Other charges that may be part of the payment (as well as the balance 
computation method) may, but need not, be described under this 
provision.
    2. Fixed rate and term payment options during draw period. If the 
home equity plan permits the consumer to repay all or part of the 
balance during the draw period at a fixed rate (rather than a variable 
rate) and over a specified time period, this feature must be disclosed. 
To illustrate, a variable-rate plan may permit a consumer to elect 
during a ten-year draw period to repay all or a portion of the balance 
over a three-year period at a fixed rate. The creditor must disclose the 
rules relating to this feature including the period during which the 
option can be selected, the length of time over which repayment can 
occur, any fees imposed for such a feature, and the specific rate or a 
description of the index and margin that will apply upon exercise of 
this choice. For example, the index and margin disclosure might state: 
``If you choose to convert any portion of your balance to a fixed rate, 
the rate will be the highest prime rate published in the `Wall Street 
Journal' that is in effect at the date of conversion plus a margin.'' If 
the fixed rate is to be determined according to an index, it must be one 
that is outside the creditor's control and is publicly available in 
accordance with Sec. 226.5b(f)(1). The effect of exercising the option 
should not be reflected elsewhere in the disclosures, such as in the 
historical example required in Sec. 226.5b(d)(12)(xi).
    3. Balloon payments. In programs where the occurrence of a balloon 
payment is possible, the creditor must disclose the possibility of a 
balloon payment even if such a payment is uncertain or unlikely. In such 
cases, the disclosure might read, ``Your minimum payments may not be 
sufficient to fully repay the principal that is outstanding on your 
line. If they are not, you will be required to pay the entire 
outstanding balance in a single payment.'' In programs where a balloon 
payment will occur, such as programs with interest-only payments during 
the draw period and no repayment period, the disclosures must state that 
fact. For example, the disclosure might read, ``Your minimum payments 
will not repay the principal that is outstanding on your line. You will 
be required to pay the entire outstanding balance in a single payment.'' 
In making this disclosure, the creditor is not required to use the term 
``balloon payment.'' The creditor also is not required to disclose the 
amount of the balloon payment. (See, however, the requirement under 
Sec. 226.5b(d)(5)(iii).) The balloon payment disclosure does not apply 
in cases where repayment of the entire outstanding balance would occur 
only as a result of termination and acceleration. The creditor also need 
not make a disclosure about balloon payments if the final payment could 
not be more than twice the amount of other minimum payments under the 
plan.

                         Paragraph 5b(d)(5)(iii)

    1. Minimum periodic payment example. In disclosing the payment 
example, the creditor may assume that the credit limit as well as the 
outstanding balance is $10,000 if such an assumption is relevant to 
calculating payments. (If the creditor only offers lines of credit for 
less than $10,000, the creditor may assume an outstanding balance of 
$5,000 instead of $10,000 in making this disclosure.) The example should 
reflect the payment comprised only of principal and interest. Creditors 
may provide an additional example reflecting other charges that may be 
included in the payment, such as credit insurance premiums. Creditors 
may assume that all months have an equal number of days, that payments 
are collected in whole cents, and that payments will fall on a business 
day even though they may be due on a non-business day. For variable-rate 
plans, the example must be based on the last rate in the historical 
example required in Sec. 226.5b(d)(12)(xi), or a more recent rate. In 
cases where the last rate shown in the historical example is different 
from the index value and margin (for example, due to a rate cap), 
creditors should calculate the rate by using the index value and margin. 
A discounted rate may not be considered a more recent rate in 
calculating this payment example for either variable- or fixed-rate 
plans.
    2. Representative examples. In plans with multiple payment options 
within the draw period or within any repayment period, the creditor may 
provide representative examples as an alternative to providing examples 
for each payment option. The creditor may elect to provide 
representative payment examples based on three categories of payment 
options. The first category consists of plans that permit minimum 
payment of only accrued finance charges (interest only plans). The 
second category includes plans in which a fixed percentage or a fixed 
fraction of the outstanding balance or credit limit (for example, 2% of 
the balance or \1/180\th of the balance) is used to determine the 
minimum payment. The third category includes all other types of minimum 
payment options, such as a specified dollar amount plus any accrued 
finance charges. Creditors may classify their minimum payment 
arrangements within one of these three categories even if other features 
exist, such as varying lengths of a draw or repayment period, required 
payment of past due amounts, late charges, and minimum dollar amounts. 
The creditor may use a single example within each category to represent 
the payment options in that category. For example, if a creditor permits 
minimum payments of 1%, 2%, 3% or 4% of the outstanding balance, it may 
pick one of

[[Page 325]]

these four options and provide the example required under 
Sec. 226.5b(d)(5)(iii) for that option alone.
    The example used to represent a category must be an option commonly 
chosen by consumers, or a typical or representative example. (See the 
commentary to Sec. 226.5b(d)(12) (x) and (xi) for a discussion of the 
use of representative examples for making those disclosures. Creditors 
using a representative example within each category must use the same 
example for purposes of the disclosures under Sec. 226.5b (d)(5)(iii) 
and (d)(12) (x) and (xi).) Creditors may use representative examples 
under Sec. 226.5b(d)(5) only with respect to the payment example 
required under paragraph (d)(5)(iii). Creditors must provide a full 
narrative description of all payment options under Sec. 226.5b(d)(5) (i) 
and (ii).
    3. Examples for draw and repayment periods. Separate examples must 
be given for the draw and repayment periods unless the payments are 
determined the same way during both periods. In setting forth payment 
examples for any repayment period under this section (and the historical 
example under Sec. 226.5b(d)(12)(xi)), creditors should assume a $10,000 
advance is taken at the beginning of the draw period and is reduced 
according to the terms of the plan. Creditors should not assume an 
additional advance is taken at any time, including at the beginning of 
any repayment period.
    4. Reverse mortgages. Reverse mortgages, also known as reverse 
annuity or home equity conversion mortgages, in addition to permitting 
the consumer to obtain advances, may involve the disbursement of monthly 
advances to the consumer for a fixed period or until the occurrence of 
an event such as the consumer's death. Repayment of the reverse mortgage 
(generally a single payment of principal and accrued interest) may be 
required to be made at the end of the disbursements or, for example, 
upon the death of the consumer. In disclosing these plans, creditors 
must apply the following rules, as applicable:
     If the reverse mortgage has a specified period for advances 
and disbursements but repayment is due only upon occurrence of a future 
event such as the death of the consumer, the creditor must assume that 
disbursements will be made until they are scheduled to end. The creditor 
must assume repayment will occur when disbursements end (or within a 
period following the final disbursement which is not longer than the 
regular interval between disbursements). This assumption should be used 
even though repayment may occur before or after the disbursements are 
scheduled to end. In such cases, the creditor may include a statement 
such as ``The disclosures assume that you will repay the line at the 
time the draw period and our payments to you end. As provided in your 
agreement, your repayment may be rquired at a different time.'' The 
single payment should be considered the ``minimum periodic payment'' and 
consequently would not be treated as a balloon payment. The example of 
the minimum payment under Sec. 226.5b(d)(5)(iii) should assume a single 
$10,000 draw.
     If the reverse mortgage has neither a specified period for 
advances or disbursements nor a specified repayment date and these terms 
will be determined solely by reference to future events, including the 
consumer's death, the creditor may assume that the draws and 
disbursements will end upon the consumer's death (estimated by using 
actuarial tables, for example) and that repayment will be required at 
the same time (or within a period following the date of the final 
disbursement which is not longer than the regular interval for 
disbursements). Alternatively, the creditor may base the disclosures 
upon another future event it estimates will be most likely to occur 
first. (If terms will be determined by reference to future events which 
do not include the consumer's death, the creditor must base the 
disclosures upon the occurrence of the event estimated to be most likely 
to occur first.)
     In making the disclosures, the creditor must assume that 
all draws and disbursements and accrued interest will be paid by the 
consumer. For example, if the note has a non-recourse provision 
providing that the consumer is not obligated for an amount greater than 
the value of the house, the creditor must nonetheless assume that the 
full amount to be drawn or disbursed will be repaid. In this case, 
however, the creditor may include a statement such as ``The disclosures 
assume full repayment of the amount advanced plus accrued interest, 
although the amount you may be required to pay is limited by your 
agreement.''
     Some reverse mortgages provide that some or all of the 
appreciation in the value of the property will be shared between the 
consumer and the creditor. The creditor must disclose the appreciation 
feature, including describing how the creditor's share will be 
determined, any limitations, and when the feature may be exercised.

                    5b(d)(6)  Annual Percentage Rate

    1. Preferred-rate plans. If a creditor offers a preferential fixed-
rate plan in which the rate will increase a specified amount upon the 
occurrence of a specified event, the creditor must disclose the specific 
amount the rate will increase.

                   5b(d)(7)  Fees Imposed by Creditor

    1. Applicability. The fees referred to in Sec. 226.5b(d)(7) include 
items such as application fees, points, annual fees, transaction fees, 
fees to obtain checks to access the plan,

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and fees imposed for converting to a repayment phase that is provided 
for in the original agreement. This disclosure includes any fees that 
are imposed by the creditor to use or maintain the plan, whether the 
fees are kept by the creditor or a third party. For example, if a 
creditor requires an annual credit report on the consumer and requires 
the consumer to pay this fee to the creditor or directly to the third 
party, the fee must be specifically stated. Third party fees to open the 
plan that are initially paid by the consumer to the creditor may be 
included in this disclosure or in the disclosure under 
Sec. 226.5b(d)(8).
    2. Manner of describing fees. Charges may be stated as an estimated 
dollar amount for each fee, or as a percentage of a typical or 
representative amount of credit. The creditor may provide a stepped fee 
schedule in which a fee will increase a specified amount at a specified 
date. (See the discussion contained in the commentary to 
Sec. 226.5b(f)(3)(i).)
    3. Fees not required to be disclosed. Fees that are not imposed to 
open, use, or maintain a plan, such as fees for researching an account, 
photocopying, paying late, stopping payment, having a check returned, 
exceeding the credit limit, or closing out an account do not have to be 
disclosed under this section. Credit report and appraisal fees imposed 
to investigate whether a condition permitting a freeze continues to 
exist--as discussed in the commentary to Sec. 226.5b(f)(3)(vi)--are not 
required to be disclosed under this section or Sec. 226.5b(d)(8).
    4. Rebates of closing costs. If closing costs are imposed they must 
be disclosed, regardless of whether such costs may be rebated later (for 
example, rebated to the extent of any interest paid during the first 
year of the plan).
    5. Terms used in disclosure. Creditors need not use the terms 
finance charge or other charge in describing the fees imposed by the 
creditor under this section or those imposed by third parties under 
Sec. 226.5b(d)(8).

         5b(d)(8)  Fees Imposed by Third Parties to Open a Plan

    1. Applicability. Section 226.5b(d)(8) applies only to fees imposed 
by third parties to open the plan. Thus, for example, this section does 
not require disclosure of a fee imposed by a government agency at the 
end of a plan to release a security interest. Fees to be disclosed 
include appraisal, credit report, government agency, and attorneys fees. 
In cases where property insurance is required by the creditor, the 
creditor either may disclose the amount of the premium or may state that 
property insurance is required. For example, the disclosure might state, 
``You must carry insurance on the property that secures this plan.''
    2. Itemization of third-party fees. In all cases creditors must 
state the total of third-party fees as a single dollar amount or a range 
except that the total need not include costs for property insurance if 
the creditor discloses that such insurance is required. A creditor has 
two options with regard to providing the more detailed information about 
third party fees. Creditors may provide a statement that the consumer 
may request more specific cost information about third party fees from 
the creditor. As an alternative to including this statement, creditors 
may provide an itemization of such fees (by type and amount) with the 
early disclosures. Any itemization provided upon the consumer's request 
need not include a disclosure about property insurance.
    3. Manner of describing fees. A good faith estimate of the amount of 
fees must be provided. Creditors may provide, based on a typical or 
representative amount of credit, a range for such fees or state the 
dollar amount of such fees. Fees may be expressed on a unit cost basis, 
for example, $5 per $1,000 of credit.
    4. Rebates of third party fees. Even if fees imposed by third 
parties may be rebated, they must be disclosed. (See the commentary to 
Sec. 226.5b(d)(7).)

                     5b(d)(9)  Negative Amortization

    1. Disclosure required. In transactions where the minimum payment 
will not or may not be sufficient to cover the interest that accrues on 
the outstanding balance, the creditor must disclose that negative 
amortization will or may occur. This disclosure is required whether or 
not the unpaid interest is added to the outstanding balance upon which 
interest is computed. A disclosure is not required merely because a loan 
calls for non-amortizing or partially amortizing payments.

                   5b(d)(10)  Transaction Requirements

    1. Applicability. A limitation on automated teller machine usage 
need not be disclosed under this paragraph unless that is the only means 
by which the consumer can obtain funds.

             5b(d)(12)  Disclosures for Variable-Rate Plans

    1. Variable-rate provisions. Sample forms in appendix G-14 provide 
illustrative guidance on the variable-rate rules.

                         Paragraph 5b(d)(12)(iv)

    1. Determination of annual percentage rate. If the creditor adjusts 
its index through the addition of a margin, the disclosure might read, 
``Your annual percentage rate is based on the index plus a margin.'' The 
creditor is not required to disclose a specific value for the margin.

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                        Paragraph 5b(d)(12)(viii)

    1. Preferred-rate provisions. This paragraph requires disclosure of 
preferred-rate provisions, where the rate will increase upon the 
occurrence of some event, such as the borrower-employee leaving the 
creditor's employ or the consumer closing an existing deposit account 
with the creditor.
    2. Provisions on conversion to fixed rates. The commentary to 
Sec. 226.5b(d)(5)(ii) discusses the disclosure requirements for options 
permitting the consumer to convert from a variable rate to a fixed rate.

                         Paragraph 5b(d)(12)(ix)

    1. Periodic limitations on increases in rates. The creditor must 
disclose any annual limitations on increases in the annual percentage 
rate. If the creditor bases its rate limitation on 12 monthly billing 
cycles, such a limitation should be treated as an annual cap. Rate 
limitations imposed on less than an annual basis must be stated in terms 
of a specific amount of time. For example, if the creditor imposes rate 
limitations on only a semiannual basis, this must be expressed as a rate 
limitation for a six-month time period. If the creditor does not impose 
periodic limitations (annual or shorter) on rate increases, the fact 
that there are no annual rate limitations must be stated.
    2. Maximum limitations on increases in rates. The maximum annual 
percentage rate that may be imposed under each payment option over the 
term of the plan (including the draw period and any repayment period 
provided for in the initial agreement) must be provided. The creditor 
may disclose this rate as a specific number (for example, 18%) or as a 
specific amount above the initial rate. For example, this disclosure 
might read, ``The maximum annual percentage rate that can apply to your 
line will be 5 percentage points above your initial rate.'' If the 
creditor states the maximum rate as a specific amount above the initial 
rate, the creditor must include a statement that the consumer should 
inquire about the rate limitations that are currently available. If an 
initial discount is not taken into account in applying maximum rate 
limitations, that fact must be disclosed. If separate overall 
limitations apply to rate increases resulting from events such as the 
exercise of a fixed-rate conversion option or leaving the creditor's 
employ, those limitations also must be stated. Limitations do not 
include legal limits in the nature of usury or rate ceilings under state 
or federal statutes or regulations.
    3. Form of disclosures. The creditor need not disclose each periodic 
or maximum rate limitation that is currently available. Instead, the 
creditor may disclose the range of the lowest and highest periodic and 
maximum rate limitations that may be applicable to the creditor's home 
equity plans. Creditors using this alternative must include a statement 
that the consumer should inquire about the rate limitations that are 
currently available.

                         Paragraph 5b(d)(12)(x)

    1. Maximum rate payment example. In calculating the payment 
creditors should assume the maximum rate is in effect. Any discounted or 
premium initial rates or periodic rate limitations should be ignored for 
purposes of this disclosure. If a range is used to disclose the maximum 
cap under Sec. 226.5b(d)(12)(ix), the highest rate in the range must be 
used for the disclosure under this paragraph. As an alternative to 
making disclosures based on each payment option, the creditor may choose 
a representative example within the three categories of payment options 
upon which to base this disclosure. (See the commentary to 
Sec. 226.5b(d)(5).) However, separate examples must be provided for the 
draw period and for any repayment period unless the payment is 
determined the same way in both periods. Creditors should calculate the 
example for the repayment period based on an assumed $10,000 balance. 
(See the commentary to Sec. 226.5b(d)(5) for a discussion of the 
circumstances in which a creditor may use a lower outstanding balance.)
    2. Time the maximum rate could be reached. In stating the date or 
time when the maximum rate could be reached, creditors should assume the 
rate increases as rapidly as possible under the plan. In calculating the 
date or time, creditors should factor in any discounted or premium 
initial rates and periodic rate limitations. This disclosure must be 
provided for the draw phase and any repayment phase. Creditors should 
assume the index and margin shown in the last year of the historical 
example (or a more recent rate) is in effect at the beginning of each 
phase.

                         Paragraph 5b(d)(12)(xi)

    1. Index movement. Index values and annual percentage rates must be 
shown for the entire 15 years of the historical example and must be 
based on the most recent 15 years. The example must be updated annually 
to reflect the most recent 15 years of index values as soon as 
reasonably possible after the new index value becomes available. If the 
values for an index have not been available for 15 years, a creditor 
need only go back as far as the values have been available and may start 
the historical example at the year for which values are first available.
    2. Selection of index values. The historical example must reflect 
the method of choosing index values for the plan. For example, if an 
average of index values is used in the plan, averages must be used in 
the example, but if an index value as of a particular date is used,

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a single index value must be shown. The creditor is required to assume 
one date (or one period, if an average is used) within a year on which 
to base the history of index values. The creditor may choose to use 
index values as of any date or period as long as the index value as of 
this date or period is used for each year in the example. Only one index 
value per year need be shown, even if the plan provides for adjustments 
to the annual percentage rate or payment more than once in a year. In 
such cases, the creditor can assume that the index rate remained 
constant for the full year for the purpose of calculating the annual 
percentage rate and payment.
    3. Selection of margin. A value for the margin must be assumed in 
order to prepare the example. A creditor may select a representative 
margin that it has used with the index during the six months preceding 
preparation of the disclosures and state that the margin is one that it 
has used recently. The margin selected may be used until the creditor 
annually updates the disclosure form to reflect the most recent 15 years 
of index values.
    4. Amount of discount or premium. In reflecting any discounted or 
premium initial rate, the creditor may select a discount or premium that 
it has used during the six months preceding preparation of the 
disclosures, and should disclose that the discount or premium is one 
that the creditor has used recently. The discount or premium should be 
reflected in the example for as long as it is in effect. The creditor 
may assume that a discount or premium that would have been in effect for 
any part of a year was in effect for the full year for purposes of 
reflecting it in the historical example.
    5. Rate limitations. Limitations on both periodic and maximum rates 
must be reflected in the historical example. If ranges of rate 
limitations are provided under Sec. 226.5b(d)(12)(ix), the highest rates 
provided in those ranges must be used in the example. Rate limitations 
that may apply more often than annually should be treated as if they 
were annual limitations. For example, if a creditor imposes a 1% cap 
every six months, this should be reflected in the example as if it were 
a 2% annual cap.
    6. Assumed advances. The creditor should assume that the $10,000 
balance is an advance taken at the beginning of the first billing cycle 
and is reduced according to the terms of the plan, and that the consumer 
takes no subsequent draws. As discussed in the commentary to 
Sec. 226.5b(d)(5), creditors should not assume an additional advance is 
taken at the beginning of any repayment period. If applicable, the 
creditor may assume the $10,000 is both the advance and the credit 
limit. (See the commentary to Sec. 226.5b(d)(5) for a discussion of the 
circumstances in which a creditor may use a lower outstanding balance.)
    7. Representative payment options. The creditor need not provide an 
historical example for all of its various payment options, but may 
select a representative payment option within each of the three 
categories of payments upon which to base its disclosure. (See the 
commentary to Sec. 226.5b(d)(5).)
    8. Payment information. The payment figures in the historical 
example must reflect all significant program terms. For example, 
features such as rate and payment caps, a discounted initial rate, 
negative amortization, and rate carryover must be taken into account in 
calculating the payment figures if these would have applied to the plan. 
The historical example should include payments for as much of the length 
of the plan as would occur during a 15-year period. For example:
     If the draw period is 10 years and the repayment period is 
15 years, the example should illustrate the entire 10-year draw period 
and the first 5 years of the repayment period.
     If the length of the draw period is 15 years and there is a 
15-year repayment phase, the historical example must reflect the 
payments for the 15-year draw period and would not show any of the 
repayment period. No additional historical example would be required to 
reflect payments for the repayment period.
     If the length of the plan is less than 15 years, payments 
in the historical example need only be shown for the number of years in 
the term. In such cases, however, the creditor must show the index 
values, margin and annual percentage rates and continue to reflect all 
significant plan terms such as rate limitations for the entire 15 years.

A creditor need show only a single payment per year in the example, even 
though payments may vary during a year. The calculations should be based 
on the actual payment computation formula, although the creditor may 
assume that all months have an equal number of days. The creditor may 
assume that payments are made on the last day of the billing cycle, the 
billing date or the payment due date, but must be consistent in the 
manner in which the period used to illustrate payment information is 
selected. Information about balloon payments and remaining balance may, 
but need not, be reflected in the example.
    9. Disclosures for repayment period. The historical example must 
reflect all features of the repayment period, including the appropriate 
index values, margin, rate limitations, length of the repayment period, 
and payments. For example, if different indices are used during the draw 
and repayment periods, the index values for that portion of the 15 years 
that reflect the repayment period must be the values for the appropriate 
index.
    10. Reverse mortgages. The historical example for reverse mortgages 
should reflect 15 years of index values and annual percentage rates, but 
the payment column should be

[[Page 329]]

blank until the year that the single payment will be made, assuming that 
payment is estimated to occur within 15 years. (See the commentary to 
Sec. 226.5b(d)(5) for a discussion of reverse mortgages.)

                             5b(e)  Brochure

    1. Substitutes. A brochure is a suitable substitute for the Board's 
home equity brochure if it is, at a minimum, comparable to the Board's 
brochure in substance and comprehensiveness. Creditors are permitted to 
provide more detailed information than is contained in the Board's 
brochure.
    2. Effect of third party delivery of brochure. If a creditor 
determines that a third party has provided a consumer with the required 
brochure pursuant to Sec. 226.5b(c), the creditor need not give the 
consumer a second brochure.

                 5b(f)  Limitations on Home Equity Plans

    1. Coverage. Section 226.5b(f) limits both actions that may be taken 
and language that may be included in contracts, and applies to any 
assignee or holder as well as to the original creditor. The limitations 
apply to the draw period and any repayment period, and to any renewal or 
modification of the original agreement.

                           Paragraph 5b(f)(1)

    1. External index. A creditor may change the annual percentage rate 
for a plan only if the change is based on an index outside the 
creditor's control. Thus, a creditor may not make rate changes based on 
its own prime rate or cost of funds and may not reserve a contractual 
right to change rates at its discretion. A creditor is permitted, 
however, to use a published prime rate, such as that in the Wall Street 
Journal, even if the bank's own prime rate is one of several rates used 
to establish the published rate.
    2. Publicly available. The index must be available to the public. A 
publicly available index need not be published in a newspaper, but it 
must be one the consumer can independently obtain (by telephone, for 
example) and use to verify rates imposed under the plan.
    3. Provisions not prohibited. This paragraph does not prohibit rate 
changes that are specifically set forth in the agreement. For example, 
stepped-rate plans, in which specified rates are imposed for specified 
periods, are permissible. In addition, preferred-rate provisions, in 
which the rate increases by a specified amount upon the occurrence of a 
specified event, also are permissible.

                           Paragraph 5b(f)(2)

    1. Limitations on termination and acceleration. In general, 
creditors are prohibited from terminating and accelerating payment of 
the outstanding balance before the scheduled expiration of a plan. 
However, creditors may take these actions in the four circumstances 
specified in Sec. 226.5b(f)(2). Creditors are not permitted to specify 
in their contracts any other events that allow termination and 
acceleration beyond those permitted by the regulation. Thus, for 
example, an agreement may not provide that the balance is payable on 
demand nor may it provide that the account will be terminated and the 
balance accelerated if the rate cap is reached.
    2. Other actions permitted. If an event permitting termination and 
acceleration occurs, a creditor may instead take actions short of 
terminating and accelerating. For example, a creditor could temporarily 
or permanently suspend further advances, reduce the credit limit, change 
the payment terms, or require the consumer to pay a fee. A creditor also 
may provide in its agreement that a higher rate or higher fees will 
apply in circumstances under which it would otherwise be permitted to 
terminate the plan and accelerate the balance. A creditor that does not 
immediately terminate an account and accelerate payment or take another 
permitted action may take such action at a later time, provided one of 
the conditions permitting termination and acceleration exists at that 
time.

                          Paragraph 5b(f)(2)(i)

    1. Fraud or material misrepresentation. A creditor may terminate a 
plan and accelerate the balance if there has been fraud or material 
misrepresentation by the consumer in connection with the plan. This 
exception includes fraud or misrepresentation at any time, either during 
the application process or during the draw period and any repayment 
period. What constitutes fraud or misrepresentation is determined by 
applicable state law and may include acts of omission as well as overt 
acts, as long as any necessary intent on the part of the consumer 
exists.

                         Paragraph 5b(f)(2)(ii)

    1. Failure to meet repayment terms. A creditor may terminate a plan 
and accelerate the balance when the consumer fails to meet the repayment 
terms provided for in the agreement. However, a creditor may terminate 
and accelerate under this provision only if the consumer actually fails 
to make payments. For example, a creditor may not terminate and 
accelerate if the consumer, in error, sends a payment to the wrong 
location, such as a branch rather than the main office of the creditor. 
If a consumer files for or is placed in bankruptcy, the creditor may 
terminate and accelerate under this provision if the consumer fails to 
meet the repayment terms of the agreement. This section does not 
override any state or other law that

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requires a right-to-cure notice, or otherwise places a duty on the 
creditor before it can terminate a plan and accelerate the balance.

                         Paragraph 5b(f)(2)(iii)

    1. Impairment of security. A creditor may terminate a plan and 
accelerate the balance if the consumer's action or inaction adversely 
affects the creditor's security for the plan, or any right of the 
creditor in that security. Action or inaction by third parties does not, 
in itself, permit the creditor to terminate and accelerate.
    2. Examples. A creditor may terminate and accelerate, for example, 
if:
     The consumer transfers title to the property or sells the 
property without the permission of the creditor
     The consumer fails to maintain required insurance on the 
dwelling
     The consumer fails to pay taxes on the property
     The consumer permits the filing of a lien senior to that 
held by the creditor
     The sole consumer obligated on the plan dies
     The property is taken through eminent domain
     A prior lienholder forecloses

By contrast, the filing of a judgment against the consumer would permit 
termination and acceleration only if the amount of the judgment and 
collateral subject to the judgment is such that the creditor's security 
is adversely affected. If the consumer commits waste or otherwise 
destructively uses or fails to maintain the property such that the 
action adversely affects the security, the plan may be terminated and 
the balance accelerated. Illegal use of the property by the consumer 
would permit termination and acceleration if it subjects the property to 
seizure. If one of two consumers obligated on a plan dies the creditor 
may terminate the plan and accelerate the balance if the security is 
adversely affected. If the consumer moves out of the dwelling that 
secures the plan and that action adversely affects the security, the 
creditor may terminate a plan and accelerate the balance.

                           Paragraph 5b(f)(3)

    1. Scope of provision. In general, a creditor may not change the 
terms of a plan after it is opened. For example, a creditor may not 
increase any fee or impose a new fee once the plan has been opened, even 
if the fee is charged by a third party, such as a credit reporting 
agency, for a service. The change of terms prohibition applies to all 
features of a plan, not only those required to be disclosed under this 
section. For example, this provision applies to charges imposed for late 
payment, although this fee is not required to be disclosed under 
Sec. 226.5b(d)(7).
    2. Charges not covered. There are three charges not covered by this 
provision. A creditor may pass on increases in taxes since such charges 
are imposed by a governmental body and are beyond the control of the 
creditor. In addition, a creditor may pass on increases in premiums for 
property insurance that are excluded from the finance charge under 
Sec. 226.4(d)(2), since such insurance provides a benefit to the 
consumer independent of the use of the line and is often maintained 
notwithstanding the line. A creditor also may pass on increases in 
premiums for credit insurance that are excluded from the finance charge 
under Sec. 226.4(d)(1), since the insurance is voluntary and provides a 
benefit to the consumer.

                          Paragraph 5b(f)(3)(i)

    1. Changes provided for in agreement. A creditor may provide in the 
initial agreement that further advances will be prohibited or the credit 
line reduced during any period in which the maximum annual percentage 
rate is reached. A creditor also may provide for other specific changes 
to take place upon the occurrence of specific events. Both the 
triggering event and the resulting modification must be stated with 
specificity. For example, in home equity plans for employees, the 
agreement could provide that a specified higher rate or margin will 
apply if the borrower's employment with the creditor ends. A contract 
could contain a stepped-rate or stepped-fee schedule providing for 
specified changes in the rate or the fees on certain dates or after a 
specified period of time. A creditor also may provide in the initial 
agreement that it will be entitled to a share of the appreciation in the 
value of the property as long as the specific appreciation share and the 
specific circumstances which require the payment of it are set forth. A 
contract may permit a consumer to switch among minimum payment options 
during the plan.
    2. Prohibited provisions. A creditor may not include a general 
provision in its agreement permitting changes to any or all of the terms 
of the plan. For example, creditors may not include ``boilerplate'' 
language in the agreement stating that they reserve the right to change 
the fees imposed under the plan. In addition, a creditor may not include 
any ``triggering events'' or responses that the regulation expressly 
addresses in a manner different from that provided in the regulation. 
For example, an agreement may not provide that the margin in a variable-
rate plan will increase if there is a material change in the consumer's 
financial circumstances, because the regulation specifies that 
temporarily freezing the line or lowering the credit limit is the 
permissible response to a material change in the consumer's financial 
circumstances. Similarly a

[[Page 331]]

contract cannot contain a provision allowing the creditor to freeze a 
line due to an insignificant decline in property value since the 
regulation allows that response only for a significant decline.

                         Paragraph 5b(f)(3)(ii)

    1. Substitution of index. A creditor may change the index and margin 
used under the plan if the original index becomes unavailable, as long 
as historical fluctuations in the original and replacement indices were 
substantially similar, and as long as the replacement index and margin 
will produce a rate similar to the rate that was in effect at the time 
the original index became unavailable. If the replacement index is newly 
established and therefore does not have any rate history, it may be used 
if it produces a rate substantially similar to the rate in effect when 
the original index became unavailable.

                         Paragraph 5b(f)(3)(iii)

    1. Changes by written agreement. A creditor may change the terms of 
a plan if the consumer expressly agrees in writing to the change at the 
time it is made. For example, a consumer and a creditor could agree in 
writing to change the repayment terms from interest-only payments to 
payments that reduce the principal balance. The provisions of any such 
agreement are governed by the limitations in Sec. 226.5b(f). For 
example, a mutual agreement could not provide for future annual 
percentage rate changes based on the movement of an index controlled by 
the creditor or for termination and acceleration under circumstances 
other than those specified in the regulation. By contrast, a consumer 
could agree to a new credit limit for the plan, although the agreement 
could not permit the creditor to later change the credit limit except by 
a subsequent written agreement or in the circumstances described in 
Sec. 226.5b(f)(3)(vi).
    2. Written agreement. The change must be agreed to in writing by the 
consumer. Creditors are not permitted to assume consent because the 
consumer uses an account, even if use of an account would otherwise 
constitute acceptance of a proposed change under state law.

                         Paragraph 5b(f)(3)(iv)

    1. Beneficial changes. After a plan is opened, a creditor may make 
changes that unequivocally benefit the consumer. Under this provision, a 
creditor may offer more options to consumers, as long as existing 
options remain. For example, a creditor may offer the consumer the 
option of making lower monthly payments or could increase the credit 
limit. Similarly, a creditor wishing to extend the length of the plan on 
the same terms may do so. Creditors are permitted to temporarily reduce 
the rate or fees charged during the plan (though a change in terms 
notice may be required under Sec. 226.9(c) when the rate or fees are 
returned to their original level). Creditors also may offer an 
additional means of access to the line, even if fees are associated with 
using the device, provided the consumer retains the ability to use prior 
access devices on the original terms.

                          Paragraph 5b(f)(3)(v)

    1. Insignificant changes. A creditor is permitted to make 
insignificant changes after a plan is opened. This rule accommodates 
operational and similar problems, such as changing the address of the 
creditor for purposes of sending payments. It does not permit a creditor 
to change a term such as a fee charged for late payments.
    2. Examples of insignificant changes. Creditors may make minor 
changes to features such as the billing cycle date, the payment due date 
(as long as the consumer does not have a diminished grace period if one 
is provided), and the day of the month on which index values are 
measured to determine changes to the rate for variable-rate plans. A 
creditor also may change its rounding practice in accordance with the 
tolerance rules set forth in Sec. 226.14 (for example, stating an exact 
APR of 14.3333 percent as 14.3 percent, even if it had previously been 
stated as 14.33 percent). A creditor may change the balance computation 
method it uses only if the change produces an insignificant difference 
in the finance charge paid by the consumer. For example, a creditor may 
switch from using the average daily balance method (including new 
transactions) to the daily balance method (including new transactions).

                         Paragraph 5b(f)(3)(vi)

    1. Suspension of credit privileges or reduction of credit limit. A 
creditor may prohibit additional extensions of credit or reduce the 
credit limit in the circumstances specified in this section of the 
regulation. In addition, as discussed under Sec. 226.5b(f)(3)(i), a 
creditor may contractually reserve the right to take such actions when 
the maximum annual percentage rate is reached. A creditor may not take 
these actions under other circumstances, unless the creditor would be 
permitted to terminate the line and accelerate the balance as described 
in Sec. 226.5b(f)(2). The creditor's right to reduce the credit limit 
does not permit reducing the limit below the amount of the outstanding 
balance if this would require the consumer to make a higher payment.
    2. Temporary nature of suspension or reduction. Creditors are 
permitted to prohibit additional extensions of credit or reduce the 
credit limit only while one of the designated circumstances exists. When 
the circumstance justifying the creditor's action

[[Page 332]]

ceases to exist, credit privileges must be reinstated, assuming that no 
other circumstance permitting such action exists at that time.
    3. Imposition of fees. If not prohibited by state law, a creditor 
may collect only bona fide and reasonable appraisal and credit report 
fees if such fees are actually incurred in investigating whether the 
condition permitting the freeze continues to exist. A creditor may not, 
in any circumstances, impose a fee to reinstate a credit line once the 
condition has been determined not to exist.
    4. Reinstatement of credit privileges. Creditors are responsible for 
ensuring that credit privileges are restored as soon as reasonably 
possible after the condition that permitted the creditor's action ceases 
to exist. One way a creditor can meet this responsibility is to monitor 
the line on an ongoing basis to determine when the condition ceases to 
exist. The creditor must investigate the condition frequently enough to 
assure itself that the condition permitting the freeze continues to 
exist. The frequency with which the creditor must investigate to 
determine whether a condition continues to exist depends upon the 
specific condition permitting the freeze. As an alternative to such 
monitoring, the creditor may shift the duty to the consumer to request 
reinstatement of credit privileges by providing a notice in accordance 
with Sec. 226.9(c)(3). A creditor may require a reinstatement request to 
be in writing if it notifies the consumer of this requirement on the 
notice provided under Sec. 226.9(c)(3). Once the consumer requests 
reinstatement, the creditor must promptly investigate to determine 
whether the condition allowing the freeze continues to exist. Under this 
alternative, the creditor has a duty to investigate only upon the 
consumer's request.
    5. Suspension of credit privileges following request by consumer. A 
creditor may honor a specific request by a consumer to suspend credit 
privileges. If the consumer later requests that the creditor reinstate 
credit privileges, the creditor must do so provided no other 
circumstance justifying a suspension exists at that time. If two or more 
consumers are obligated under a plan and each has the ability to take 
advances, the agreement may permit any of the consumers to direct the 
creditor not to make further advances. A creditor may require that all 
persons obligated under a plan request reinstatement.
    6. Significant decline defined. What constitutes a significant 
decline for purposes of Sec. 226.5b(f)(3)(vi)(A) will vary according to 
individual circumstances. In any event, if the value of the dwelling 
declines such that the initial difference between the credit limit and 
the available equity (based on the property's appraised value for 
purposes of the plan) is reduced by fifty percent, this constitutes a 
significant decline in the value of the dwelling for purposes of 
Sec. 226.5b(f)(3)(vi)(A). For example, assume that a house with a first 
mortgage of $50,000 is appraised at $100,000 and the credit limit is 
$30,000. The difference between the credit limit and the available 
equity is $20,000, half of which is $10,000. The creditor could prohibit 
further advances or reduce the credit limit if the value of the property 
declines from $100,000 to $90,000. This provision does not require a 
creditor to obtain an appraisal before suspending credit privileges 
although a significant decline must occur before suspension can occur.
    7. Material change in financial circumstances. Two conditions must 
be met for Sec. 226.5b(f)(3)(vi)(B) to apply. First, there must be a 
``material change'' in the consumer's financial circumstances, such as a 
significant decrease in the consumer's income. Second, as a result of 
this change, the creditor must have a reasonable belief that the 
consumer will be unable to fulfill the payment obligations of the plan. 
A creditor may, but does not have to, rely on specific evidence (such as 
the failure to pay other debts) in concluding that the second part of 
the test has been met. A creditor may prohibit further advances or 
reduce the credit limit under this section if a consumer files for or is 
placed in bankruptcy.
    8. Default of a material obligation. Creditors may specify events 
that would qualify as a default of a material obligation under 
Sec. 226.5b(f)(3)(vi)(C). For example, a creditor may provide that 
default of a material obligation will exist if the consumer moves out of 
the dwelling or permits an intervening lien to be filed that would take 
priority over future advances made by the creditor.
    9. Government limits on the annual percentage rate. Under 
Sec. 226.5b(f)(3)(vi)(D), a creditor may prohibit further advances or 
reduce the credit limit if, for example, a state usury law is enacted 
which prohibits a creditor from imposing the agreed-upon annual 
percentage rate.

                          5b(g)  Refund of Fees

    1. Refund of fees required. If any disclosed term, including any 
term provided upon request pursuant to Sec. 226.5b(d), changes between 
the time the early disclosures are provided to the consumer and the time 
the plan is opened, and the consumer as a result decides to not enter 
into the plan, a creditor must refund all fees paid by the consumer in 
connection with the application. All fees, including credit report fees 
and appraisal fees, must be refunded whether such fees are paid to the 
creditor or directly to third parties. A consumer is entitled to a 
refund of fees under these circumstances whether or not terms are 
guaranteed by the creditor under Sec. 226.5b(d)(2)(i).

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    2. Variable-rate plans. The right to a refund of fees does not apply 
to changes in the annual percentage rate resulting from fluctuations in 
the index value in a variable-rate plan. Also, if the maximum annual 
percentage rate is expressed as an amount over the initial rate, the 
right to refund of fees would not apply to changes in the cap resulting 
from fluctuations in the index value.
    3. Changes in terms. If a term, such as the maximum rate, is stated 
as a range in the early disclosures, and the term ultimately applicable 
to the plan falls within that range, a change does not occur for 
purposes of this section. If, however, no range is used and the term is 
changed (for example, a rate cap of 6 rather than 5 percentage points 
over the initial rate), the change would permit the consumer to obtain a 
refund of fees. If a fee imposed by the creditor is stated in the early 
disclosures as an estimate and the fee changes, the consumer could elect 
to not enter into the agreement and would be entitled to a refund of 
fees. On the other hand, if fees imposed by third parties are disclosed 
as estimates and those fees change, the consumer is not entitled to a 
refund of fees paid in connection with the application. Creditors must, 
however, use the best information reasonably available in providing 
disclosures about such fees.
    4. Timing of refunds and relation to other provisions. The refund of 
fees must be made as soon as reasonably possible after the creditor is 
notified that the consumer is not entering into the plan because of the 
changed term, or that the consumer wants a refund of fees. The fact that 
an application fee may be refunded to some applicants under this 
provision does not render such fees finance charges under 
Sec. 226.4(c)(1) of the regulation.

                 5b(h)  Imposition of Nonrefundable Fees

    1. Collection of fees after consumer receives disclosures. A fee may 
be collected after the consumer receives the disclosures and brochure 
and before the expiration of three days, although the fee must be 
refunded if, within three days of receiving the required information, 
the consumer decides to not enter into the agreement. In such a case, 
the consumer must be notified that the fee is refundable for three days. 
The notice must be clear and conspicuous and in writing, and may be 
included with the disclosures required under Sec. 226.5b(d) or as an 
attachment to them. If disclosures and brochure are mailed to the 
consumer, footnote 10d of the regulation provides that a nonrefundable 
fee may not be imposed until six business days after the mailing.
    2. Collection of fees before consumer receives disclosures. An 
application fee may be collected before the consumer receives the 
disclosures and brochure (for example, when an application contained in 
a magazine is mailed in with an application fee) provided that it 
remains refundable until three business days after the consumer receives 
the Sec. 226.5b disclosures. No other fees except a refundable 
membership fee may be collected until after the consumer receives the 
disclosures required under Sec. 226.5b.
    3. Relation to other provisions. A fee collected before disclosures 
are provided may become nonrefundable except that, under Sec. 226.5b(g), 
it must be refunded if the consumer elects to not enter into the plan 
because of a change in terms. (Of course, all fees must be refunded if 
the consumer later rescinds under Sec. 226.15.)

               Section 226.6  Initial Disclosure Statement

    1. Consistent terminology. Language on the initial and periodic 
disclosure statements must be close enough in meaning to enable the 
consumer to relate the 2 sets of disclosures; however, the language need 
not be identical. For example, in making the disclosure under 
Sec. 226.6(a)(3), the creditor may refer to the ``outstanding balance at 
the end of the billing cycle,'' while the disclosure for Sec. 226.7(i) 
refers to the ``ending balance'' or ``new balance.''
    2. Separate initial disclosures permitted. In a certain open-end 
credit program involving more than one creditor--a card issuer of 
travel-and-entertainment cards and a financial institution--the consumer 
has the option to pay the card issuer directly or to transfer to the 
financial institution all or part of the amount owing. In this case, the 
creditors may send separate initial disclosure statements.
    6(a) Finance charge.
    Paragraph 6(a)(1)
    1. When finance charges accrue. Creditors may provide a general 
explanation about finance charges beginning to run and need not disclose 
a specific date. For example, a disclosure that the consumer has 30 days 
from the closing date to pay the new balance before finance charges will 
accrue on the account would describe when finance charges begin to run.
    2. Free-ride periods. In disclosing whether or not a free-ride 
period exists, the creditor need not use ``free period,'' ``free-ride 
period,'' or any other particular descriptive phrase or term. For 
example, a statement that ``the finance charge begins on the date the 
transaction is posted to your account'' adequately discloses that no 
free-ride period exists. In the same fashion, a statement that ``finance 
charges will be imposed on any new purchases only if they are not paid 
in full within 25 days after the close of the billing cycle'' indicates 
that a free-ride period exists in the interim.
    Paragraph 6(a)(2).
    1. Range of balances. The range of balances disclosure is 
inapplicable:
     If only one periodic rate may be applied to the entire 
account balance.

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     If only one periodic rate may be applied to the entire 
balance for a feature (for example, cash advances), even though the 
balance for another feature (purchases) may be subject to 2 rates (a 
1.5% periodic rate on purchase balances of $0-$500, while balances above 
$500 are subject to a 1% periodic rate). Of course, the creditor must 
give a range of balances disclosure for the purchase feature.
    2. Variable-rate disclosures--coverage. This section covers open-end 
credit plans under which rate changes are part of the plan and are tied 
to an index or formula. A creditor would use variable-rate disclosures 
(and thus be excused from the requirement of giving a change-in-terms 
notice when rate increases occur as disclosed) for plans involving rate 
changes such as the following:

     Rate changes that are tied to the rate the creditor pays on 
its 6-month money market certificates.
     Rate changes that are tied to Treasury bill rates.
     Rate changes that are tied to changes in the creditor's 
commercial lending rate.

In contrast, the creditor's contract reservation to increase the rate 
without reference to such an index or formula (for example, a plan that 
simply provides that the creditor reserves the right to raise its rates) 
would not be considered a variable-rate plan for Truth in Lending 
disclosure purposes. (See the rule in Sec. 226.5b(f)(1) applicable to 
home equity plans, however, which prohibits ``rate reservation'' 
clauses.) Moreover, an open-end credit plan in which the employee 
receives a lower rate contingent upon employment (that is, with the rate 
to be increased upon termination of employment) is not a variable-rate 
plan. (With regard to such employee preferential-rate plans, however, 
see comment 9(c)-1, which provides that if the specific change that 
would occur is disclosed on the initial disclosure statement, no notice 
of a change in terms need be given when the term later changes as 
disclosed.)
    3. Variable rate plan--rate(s) in effect. In disclosing the rate(s) 
in effect at the time of the initial disclosures (as is required by 
Sec. 226.6(a)(2)), the creditor may use an insert showing the current 
rate; may give the rate as of a specified date and then update the 
disclosure from time to time, for example, each calendar month; or may 
disclose an estimated rate under Sec. 226.5(c).
    4. Variable rate plan--additional disclosures required. In addition 
to disclosing the rates in effect at the time of the initial 
disclosures, the disclosures under footnote 12 also must be made.
    5. Variable rate plan--index. The index to be used must be clearly 
identified; the creditor need not give, however, an explanation of how 
the index is determined or provide instructions for obtaining it.
    6. Variable rate plan--circumstances for increase. Circumstances 
under which the rate(s) may increase include, for example:
     An increase in the Treasury bill rate.
     An increase in the Federal Reserve discount rate.
    The creditor must disclose when the increase will take effect; for 
example,
     ``An increase will take effect on the day that the Treasury 
bill rate increases,'' or
     ``An increase in the Federal Reserve discount rate will 
take effect on the first day of the creditor's billing cycle.''
    7. Variable-rate plan--limitations on increase. In disclosing any 
limitations on rate increases, limitations such as the maximum increase 
per year or the maximum increase over the duration of the plan must be 
disclosed. When there are no limitations, the creditor may, but need 
not, disclose that fact. (A maximum interest rate must be included in 
dwelling-secured open-end credit plans under which the interest rate may 
be changed. See Sec. 226.30 and the commentary to that section.) Legal 
limits such as usury or rate ceilings under State or Federal statutes or 
regulations need not be disclosed. Examples of limitations that must be 
disclosed include:
     ``The rate on the plan will not exceed 25% annual 
percentage rate.''
     ``Not more than \1/2\% increase in the annual percentage 
rate per year will occur.''
    8. Variable rate plan--effects of increase. Examples of effects that 
must be disclosed include:
     Any requirement for additional collateral if the annual 
percentage rate increases beyond a specified rate.
     Any increase in the scheduled minimum periodic payment 
amount.

    9. Variable rate plan--change-in-terms notice not required. No 
notice of a change in terms is required for a rate increase under a 
variable rate plan as defined in Comment 6(a)(2)-2.
    10. Discounted variable-rate plans. In some variable-rate plans, 
creditors may set an initial interest rate that is not determined by the 
index or formula used to make later interest rate adjustments. 
Typically, this initial rate is lower than the rate would be if it were 
calculated using the index or formula.
     For example, a creditor may calculate interest rates 
according to a formula using the six-month Treasury bill rate plus a 2 
percent margin. If the current Treasury bill rate is 10 percent, the 
creditor may forego the 2 percent spread and charge only 10 percent for 
a limited time, instead of setting an initial rate of 12 percent, or the 
creditor may disregard the index or formula and set the initial rate at 
9 percent.
     When creditors use an initial rate that is not calculated 
using the index or formula for later rate adjustments, the initial 
disclosure

[[Page 335]]

statement should reflect: (1) The initial rate (expressed as a periodic 
rate and a corresponding annual percentage rate), together with a 
statement of how long it will remain in effect; (2) the current rate 
that would have been applied using the index or formula (also expressed 
as a periodic rate and a corresponding annual percentage rate); and (3) 
the other variable-rate information required by footnote 12 to 
Sec. 226.6(a)(2).
     In disclosing the current periodic and annual percentage 
rates that would be applied using the index or formula, the creditor may 
use any of the disclosure options described in comment 6(a)(2)-3.
    Paragraph 6(a)(3).
    1. Explanation of balance computation method. A shorthand phrase 
such as ``previous balance method'' does not suffice in explaining the 
balance computation method. (See appendix G-1 for model clauses.)
    2. Allocation of payments. Disclosure about the allocation of 
payments and other credits is not required. For example, the creditor 
need not disclose that payments are applied to late charges, overdue 
balances, and finance charges before being applied to the principal 
balance; or in a multifeatured plan, that payments are applied first to 
finance charges, then to purchases, and then to cash advances. (See 
Comment 7-1 for definition of multifeatured plan.)
    Paragraph 6(a)(4).
    1. Finance charges. In addition to disclosing the periodic rate(s) 
under Sec. 226.6(a)(2), disclosure is required of any other type of 
finance charge that may be imposed, such as minimum, fixed, transaction, 
and activity charges; required insurance; or appraisal or credit report 
fees (unless excluded from the finance charge under Sec. 226.4(c)(7)).
    6(b) Other charges.
    1. General; examples of other charges. Under Sec. 226.6(b), 
significant charges related to the plan (that are not finance charges) 
must also be disclosed. For example:
    i. Late payment and over-the-credit-limit charges.
    ii. Fees for providing documentary evidence of transactions 
requested under Sec. 226.13 (billing error resolution).
    iii. Charges imposed in connection with real estate transactions 
such as title, appraisal, and credit report fees (see Sec. 226.4(c)(7)).
    iv. A tax imposed on the credit transaction by a state or other 
governmental body, such as a documentary stamp tax on cash advances (see 
the commentary to Sec. 226.4(a)).
    v. A membership or participation fee for a package of services that 
includes an open-end credit feature, unless the fee is required whether 
or not the open-end credit feature is included. For example, a 
membership fee to join a credit union is not an ``other charge,'' even 
if membership is required to apply for credit. For the fee to be 
excluded from disclosure as an ``other charge,'' however, the package of 
services must have some substantive purpose other than access to the 
credit feature. For example, if the primary benefit of membership in an 
organization is the opportunity to apply for a credit card, and the 
other benefits offered (such as a newsletter or a member information 
hotline) are merely incidental to the credit feature, the membership fee 
would have to be disclosed as an ``other charge.''
    vi. Automated teller machine (ATM) charges described in comment 
4(a)-5 that are not finance charges.
    vii. Charges imposed for the termination of an open-end credit plan.

    2. Exclusions. The following are examples of charges that are not 
``other charges'':

     Fees charged for documentary evidence of transactions for 
income tax purposes.
     Amounts payable by a consumer for collection activity after 
default; attorney's fees, whether or not automatically imposed; 
foreclosure costs; post-judgment interest rates imposed by law; and 
reinstatement or reissuance fees.
     Premiums for voluntary credit life or disability insurance, 
or for property insurance, that are not part of the finance charge.
     Application fees under Sec. 226.4(c)(1).
     A monthly service charge for a checking account with 
overdraft protection that is applied to all checking accounts, whether 
or not a credit feature is attached.
     Charges for submitting as payment a check that is later 
returned unpaid. (See the commentary to Sec. 226.4(c)(2).)
     Charges imposed on a cardholder by an institution other 
than the card issuer for the use of the other institution's ATM in a 
shared or interchange system. (See also comment 7(b)-2.)
     Taxes and filing or notary fees excluded from the finance 
charge under Sec. 226.4(e).

    6(c) Security interests.
    1. General. Disclosure is not required about the type of security 
interest, or about the creditor's rights with respect to that 
collateral. In other words, the creditor need not expand on the term 
security interest. Also, since no specified terminology is required, the 
creditor may designate its interest by using, for example, pledge, lien, 
or mortgage (instead of security interest).
    2. Identification of property. Identification of the collateral by 
type is satisfied by stating, for example, motor vehicle or household 
appliances. (Creditors should be aware, however, that the federal credit 
practices rules, as well as some state laws, prohibit certain security 
interests in household goods.) The creditor may, at its option, provide 
a more specific identification (for example, a model and serial number).
    3. Spreader clause. The fact that collateral for pre-existing credit 
extensions with the

[[Page 336]]

institution is being used to secure the present obligation constitutes a 
security interest and must be disclosed. (Such security interests may be 
known as spreader or dragnet clauses, or as cross-collateralization 
clauses.) A specific identification of that collateral is unnecessary, 
but a reminder of the interest arising from the prior indebtedness is 
required. This may be accomplished by using language such as 
``collateral securing other loans with us may also secure this loan.'' 
At the creditor's option, a more specific description of the property 
involved may be given.
    4. Additional collateral. If collateral is required when advances 
reach a certain amount, the creditor should disclose the information 
available at the time of the initial disclosures. For example, if the 
creditor knows that a security interest will be taken in household goods 
if the consumer's balance exceeds $1,000, the creditor should disclose 
accordingly. If the creditor knows that security will be required if the 
consumer's balance exceeds $1,000, but the creditor does not know what 
security will be required, the creditor must disclose on the initial 
disclosure statement that security will be required if the balance 
exceeds $1,000, and the creditor must provide a change-in-terms notice 
under Sec. 226.9(c) at the time the security is taken. (See comment 
6(c)-2.)
    5. Collateral from third party. In certain situations, the 
consumer's obligation may be secured by collateral belonging to a third 
party. For example, an open-end credit plan may be secured by an 
interest in property owned by the consumer's parents. In such cases, the 
security interest is taken in connection with the plan and must be 
disclosed, even though the property encumbered is owned by someone other 
than the consumer.
    6(d) Statement of billing rights.
    See the commentary to appendix G-3.

                    6(e) Home Equity Plan Information

    1. Additional disclosures required. For home equity plans, creditors 
must provide several of the disclosures set forth in Sec. 226.5b(d) 
along with the disclosures required under Sec. 226.6. Creditors also 
must disclose a list of the conditions that permit the creditor to 
terminate the plan, freeze or reduce the credit limit, and implement 
specified modifications to the original terms. (See comment 
5b(d)(4)(iii)-1.)
    2. Form of disclosures. The home equity disclosures provided under 
this section must be in a form the consumer can keep, and are governed 
by Sec. 226.5(a)(1). The segregation standard set forth in 
Sec. 226.5b(a) does not apply to home equity disclosures provided under 
Sec. 226.6.
    3. Disclosure of payment and variable-rate examples. The payment 
example disclosure in Sec. 226.5b(d)(5)(iii) and the variable-rate 
information in Sec. 226.5b(d)(12) (viii), (x), (xi), and (xii) need not 
be provided with the disclosures under Sec. 226.6 if:
     The disclosures under Sec. 226.5b(d) were provided in a 
form the consumer could keep; and
     The disclosures of the payment example under 
Sec. 226.5b(d)(5)(iii), the maximum payment example under 
Sec. 226.5b(d)(12)(x) and the historical table under 
Sec. 226.5b(d)(12)(xi) included a representative payment example for the 
category of payment options the consumer has chosen.

For example, if a creditor offers three payment options (one for each of 
the categories described in the commentary to Sec. 226.5b(d)(5)), 
describes all three options in its early disclosures, and provides all 
of the disclosures in a retainable form, that creditor need not provide 
the Sec. 226.5b(d)(5)(iii) or (d)(12) disclosures again when the account 
is opened. If the creditor showed only one of the three options in the 
early disclosures (which would be the case with a separate disclosure 
form rather than a combined form, as discussed under Sec. 226.5b(a)), 
the disclosures under Sec. 226.5b(d)(5)(iii) and (d)(12) (viii), (x), 
(xi) and (xii) must be given to any consumer who chooses one of the 
other two options. If the Sec. 226.5b(d)(5)(iii) and (d)(12) disclosures 
are provided with the second set of disclosures, they need not be 
transaction-specific, but may be based on a representative example of 
the category of payment option chosen.
    4. Disclosures for the repayment period. The creditor must provide 
disclosures about both the draw and repayment phases when giving the 
disclosures under Sec. 226.6. Specifically, the creditor must make the 
disclosures in Sec. 226.6(e), state the corresponding annual percentage 
rate (as required in Sec. 226.6(a)(2)) and provide the variable-rate 
information required in footnote 12 for the repayment phase. To the 
extent the corresponding annual percentage rate, the information in 
footnote 12, and any other required disclosures are the same for the 
draw and repayment phase, the creditor need not repeat such information, 
as long as it is clear that the information applies to both phases.

                               References

    Statute: Section 127(a).
    Other sections: Sections 226.4, 226.5, 226.7, 226.9, 226.14, and 
appendix G.
    Previous regulation: Section 226.7(a) and Interpretation 
Sec. 226.706.
    1981 changes: Section 226.6 implements the amended statute which 
requires disclosure of the fact that no free period exists. Disclosures 
about the minimum periodic payment and the Comparative Index of Credit 
Cost have been eliminated. The security interest disclosures have been 
simplified. Other charges no longer include voluntary credit life or 
disability insurance, required property insurance premiums, default 
charges, or

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fees for collection activity. Disclosures for variable rate plans are 
now required by the regulation, replacing Interpretation Sec. 226.707. 
The regulation no longer specifies the exact language to be used for the 
billing rights notice; creditors may use any version substantially 
similar to the one in appendix G.

                    Section 226.7--Periodic Statement

    1. Multifeatured plans. Some plans involve a number of different 
features, such as purchases, cash advances, or overdraft checking. 
Groups of transactions subject to different finance charge terms because 
of the dates on which the transactions took place are treated like 
different features for purposes of disclosures on the periodic 
statements. The commentary includes some special rules for multifeatured 
plans.
    2. Separate periodic statements permitted. In a certain open-end 
credit program involving more than one creditor--a card issuer of 
travel-and-entertainment cards and a financial institution--the consumer 
has the option to pay the card issuer directly or to transfer to the 
financial institution all or part of the amount owing. In this case, the 
creditors may send separate periodic statements that reflect the 
separate obligations owed to each.
    7(a) Previous balance.
    1. Credit balances. If the previous balance is a credit balance, it 
must be disclosed in such a way so as to inform the consumer that it is 
a credit balance, rather than a debit balance.
    2. Multifeatured plans. In a multifeatured plan, the previous 
balance may be disclosed either as an aggregate balance for the account 
or as separate balances for each feature (for example, a previous 
balance for purchases and a previous balance for cash advances). If 
separate balances are disclosed, a total previous balance is optional.
    3. Accrued finance charges allocated from payments. Some open-end 
credit plans provide that the amount of the finance charge that has 
accrued since the consumer's last payment is directly deducted from each 
new payment, rather than being separately added to each statement and 
reflected as an increase in the obligation. In such a plan, the previous 
balance need not reflect finance charges accrued since the last payment.
    7(b) Identification of transactions.
    1. Multifeatured plans. In identifying transactions under 
Sec. 226.7(b) for multifeatured plans, creditors may, for example, 
choose to arrange transactions by feature (such as disclosing sale 
transactions separately from cash advance transactions) or in some other 
clear manner, such as by arranging the transactions in general 
chronological order.
    2. Automated teller machine (ATM) charges imposed by other 
institutions in shared or interchange systems. A charge imposed on the 
cardholder by an institution other than the card issuer for the use of 
the other institution's ATM in a shared or interchange system and 
included by the terminal-operating institution in the amount of the 
transaction need not be separately disclosed on the periodic statement.
    7(c) Credits.
    1. Identification--sufficiency. The creditor need not describe each 
credit by type (returned merchandise, rebate of finance charge, etc.)--
credit would suffice--except if the creditor is using the periodic 
statement to satisfy the billing error correction notice requirement. 
(See the commentary to Sec. 226.13 (e) and (f).)
    2. Format. A creditor may list credits relating to credit extensions 
(payments, rebates, etc.) together with other types of credits (such as 
deposits to a checking account), as long as the entries are identified 
so as to inform the consumer which type of credit each entry represents.
    3. Date. If only one date is disclosed (that is, the crediting date 
as required by the regulation), no further identification of that date 
is necessary. More than one date may be disclosed for a single entry, as 
long as it is clear which date represents the date on which credit was 
given.
    4. Totals. Where the creditor lists the credits made to the account 
during the billing cycle, the creditor need not disclose total figures 
for the amounts credited.
    7(d) Periodic rates.
    1. Disclosure of periodic rates--whether or not actually applied. 
Any periodic rate that may be used to compute finance charges (and its 
corresponding annual percentage rate) must be disclosed whether or not 
it is applied during the billing cycle. For example:

     If the consumer's account has both a purchase feature and a 
cash advance feature, the creditor must disclose the rate for each, even 
if the consumer only makes purchases on the account during the billing 
cycle.
     If the rate varies (such as when it is tied to a particular 
index), the creditor must disclose each rate in effect during the cycle 
for which the statement was issued.

    2. Disclosure of periodic rates required only if imposition 
possible. With regard to the periodic rate disclosure (and its 
corresponding annual percentage rate), only rates that could have been 
imposed during the billing cycle reflected on the periodic statement 
need to be disclosed. For example:

     If the creditor is changing rates effective during the next 
billing cycle (either because it is changing terms or because of a 
variable rate plan), the rates required to be disclosed under 
Sec. 226.7(d) are only those in effect during the billing cycle 
reflected on the periodic statement. For example, if the monthly rate 
applied during May was 1.5 percent, but the creditor will increase the 
rate to 1.8 percent

[[Page 338]]

effective June 1, 1.5 percent (and its corresponding annual percentage 
rate) is the only required disclosure under Sec. 226.7(d) for the 
periodic statement reflecting the May account activity.
     If the consumer has an overdraft line that might later be 
expanded upon the consumer's request to include secured advances, the 
rates for the secured advance feature need not be given until such time 
as the consumer has requested and received access to the additional 
feature.
     If rates applicable to a particular type of transaction 
changed after a certain date, and the old rate is only being applied to 
transactions that took place prior to that date, the creditor need not 
continue to disclose the old rate for those consumers that have no 
outstanding balances to which that rate could be applied.
    3. Multiple rates--same transaction. If two or more periodic rates 
are applied to the same balance for the same type of transaction (for 
example, if the finance charge consists of a monthly periodic rate of 
1.5% applied to the outstanding balance and a required credit life 
insurance component calculated at .1% per month on the same outstanding 
balance), the creditor may do either of the following:

     Disclose each periodic rate, the range of balances to which 
it is applicable, and the corresponding annual percentage rate for each. 
(For example, 1.5% monthly, 18% annual percentage rate; .1% monthly, 
1.2% annual percentage rate.)
     Disclose one composite periodic rate (that is, 1.6% per 
month) along with the applicable range of balances and corresponding 
annual percentage rate.

    4. Corresponding annual percentage rate. In disclosing the annual 
percentage rate that corresponds to each periodic rate, the creditor may 
use ``corresponding annual percentage rate,'' ``nominal annual 
percentage rate,'' ``corresponding nominal annual percentage rate,'' or 
similar phrases.
    5. Rate same as actual annual percentage rate. When the 
corresponding rate is the same as the actual annual percentage rate 
(historical rate) required to be disclosed (Sec. 226.7(g)), the creditor 
need disclose only one annual percentage rate, but must use the phrase 
``annual percentage rate.''
    6. Ranges of balances. See Comment 6(a)(2)-1.
    7(e) Balance on which finance charge computed.
    1. Limitation to periodic rates. Section 226.7(e) only requires 
disclosure of the balance(s) to which a periodic rate was applied and 
does not apply to balances on which other kinds of finance charges (such 
as transaction charges) were imposed. For example, if a consumer obtains 
a $1,500 cash advance subject to both a 1% transaction fee and a 1% 
monthly periodic rate, the creditor need only disclose the balance 
subject to the monthly rate (which might include portions of earlier 
cash advances not paid off in previous cycles).
    2. Split rates applied to balance ranges. If split rates were 
applied to a balance because different portions of the balance fall 
within two or more balance ranges, the creditor need not separately 
disclose the portions of the balance subject to such different rates 
since the range of balances to which the rates apply has been separately 
disclosed. For example, a creditor could disclose a balance of $700 for 
purchases even though a monthly periodic rate of 1.5 percent applied to 
the first $500, and a monthly periodic rate of 1 percent to the 
remainder. This option to disclose a combined balance does not apply 
when the finance charge is computed by applying the split rates to each 
day's balance (in contrast, for example, to applying the rates to the 
average daily balance). In that case, the balances must be disclosed 
using any of the options that are available if two or more daily rates 
are imposed. (See comment 7(e)-5.)
    3. Monthly rate on average daily balance. If a creditor computes a 
finance charge on the average daily balance by application of a monthly 
periodic rate or rates, the balance is adequately disclosed if the 
statement gives the amount of the average daily balance on which the 
finance charge was computed, and also states how the balance is 
determined.
    4. Multifeatured plans. In a multifeatured plan, the creditor must 
disclose a separate balance (or balances, as applicable) to which a 
periodic rate was applied for each feature or group of features subject 
to different periodic rates or different balance computation methods. 
Separate balances are not required, however, merely because a ``free-
ride'' period is available for some features but not others. A total 
balance for the entire plan is optional. This does not affect how many 
balances the creditor must disclose--or may disclose--within each 
feature. (See, for example, comment 7(e)-5.)
    5. Daily rate on daily balance. If the finance charge is computed on 
the balance each day by application of one or more daily periodic rates, 
the balance on which the finance charge was computed may be disclosed in 
any of the following ways for each feature:

     If a single daily periodic rate is imposed, the balance to 
which it is applicable may be stated as:

    --A balance for each day in the billing cycle
    --A balance for each day in the billing cycle on which the balance 
in the account changes
    --The sum of the daily balances during the billing cycle

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    --The average daily balance during the billing cycle, in which case 
the creditor shall explain that the average daily balance is or can be 
multiplied by the number of days in the billing cycle and the periodic 
rate applied to the product to determine the amount of the finance 
charge.

     If two or more daily periodic rates may be imposed, the 
balances to which the rates are applicable may be stated as:

    --A balance for each day in the billing cycle
    --A balance for each day in the billing cycle on which the balance 
in the account changes
    --Two or more average daily balances, each applicable to the daily 
periodic rates imposed for the time that those rates were in effect, as 
long as the creditor explains that the finance charge is or may be 
determined by (1) multiplying each of the average balances by the number 
of days in the billing cycle (or if the daily rate varied during the 
cycle, by multiplying by the number of days the applicable rate was in 
effect), (2) multiplying each of the results by the applicable daily 
periodic rate, and (3) adding these products together.

    6. Explanation of balance computation method. See the commentary to 
Sec. 226.6(a)(3).
    7. Information to compute balance. In connection with disclosing the 
finance charge balance, the creditor need not give the consumer all of 
the information necessary to compute the balance if that information is 
not otherwise required to be disclosed. For example, if current 
purchases are included from the date they are posted to the account, the 
posting date need not be disclosed.
    8. Non-deduction of credits. The creditor need not specifically 
identify the total dollar amount of credits not deducted in computing 
the finance charge balance. Disclosure of the amount of credits not 
deducted is accomplished by listing the credits (Sec. 226.7(c)) and 
indicating which credits will not be deducted in determining the balance 
(for example, ``credits after the 15th of the month are not deducted in 
computing the finance charge.'')
    9. Use of one balance computation method explanation when multiple 
balances disclosed. Sometimes the creditor will disclose more than one 
balance to which a periodic rate was applied even though each balance 
was computed using the same balance computation method. For example, if 
a plan involves purchases and cash advances that are subject to 
different rates, more than one balance must be disclosed even though the 
same computation method is used for determining the balance for each 
feature. In these cases, one explanation of the balance computation 
method is sufficient. Sometimes the creditor separately discloses the 
portions of the balance that are subject to different rates because 
different portions of the balance fall within two or more balance 
ranges, even when a combined balance disclosure would be permitted under 
comment 7(e)-2. In these cases, one explanation of the balance 
computation method is also sufficient (assuming, of course, that all 
portions of the balance were computed using the same method).
    7(f) Amount of finance charge.
    1. Total. A total finance charge amount for the plan is not 
required.
    2. Itemization--types of finance charges. Each type of finance 
charge (such as periodic rates, transaction charges, and minimum 
charges) imposed during the cycle must be separately itemized; for 
example, disclosure of only a combined finance charge attributable to 
both a minimum charge and transaction charges would not be permissible. 
Finance charges of the same type may be disclosed, however, individually 
or as a total. For example, 5 transaction charges of $1 may be listed 
separately or as $5.
    3. Itemization--different periodic rates. Whether different periodic 
rates are applicable to different types of transactions or to different 
balance ranges, the creditor may give the finance charge attributable to 
each rate or may give a total finance charge amount. For example, if a 
creditor charges 1.5% per month on the first $500 of a balance and 1% 
per month on amounts over $500, the creditor may itemize the two 
components ($7.50 and $1.00) of the $8.50 charge, or may disclose $8.50.
    4. Multifeatured plans. In a multifeatured plan, in disclosing the 
amount of the finance charge attributable to the application of periodic 
rates no total periodic rate disclosure for the entire plan need be 
given.
    5. Finance charges not added to account. A finance charge that is 
not included in the new balance because it is payable to a third party 
(such as required life insurance) must still be shown on the periodic 
statement as a finance charge.
    6. Finance charges other than periodic rates. See Comment 6(a)(4)-1 
for examples.
    7. Accrued finance charges allocated from payments. Some plans 
provide that the amount of the finance charge that has accrued since the 
consumer's last payment is directly deducted from each new payment, 
rather than being separately added to each statement and therefore 
reflected as an increase in the obligation. In such a plan, no 
disclosure is required of finance charges that have accrued since the 
last payment.
    8. Start-up fees. Points, loan fees, and similar finance charges 
relating to the opening of the account that are paid prior to the 
issuance of the first periodic statement need not be disclosed on the 
periodic statement. If, however, these charges are financed as part of 
the plan, including charges that are paid out of the first advance, the 
charges must be disclosed as part of the finance charge on the

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first periodic statement. However, they need not be factored into the 
annual percentage rate. (See footnote 33 in the regulation.)
    7(g) Annual percentage rate.
    1. Rate same as corresponding annual percentage rate. See Comment 
7(d)-5.
    2. Multifeatured plans. In a multifeatured plan, the actual annual 
percentage rate that reflects the finance charge imposed during the 
cycle may be separately stated for each feature, or may be described as 
a composite for the whole plan. If separate rates are given, a composite 
annual percentage rate for the entire plan is optional.
    7(h) Other charges.
    1. Identification. In identifying any ``other charges'' actually 
imposed during the billing cycle, the type is adequately described as 
late charge or membership fee, for example. Similarly, closing costs or 
settlement costs, for example, may be used to describe charges imposed 
in connection with real estate transactions that are excluded from the 
finance charge under Sec. 226.4(c)(7), if the same term (such as closing 
costs) was used in the initial disclosures and if the creditor chose to 
itemize and individually disclose the costs included in that term. Even 
though the taxes and filing or notary fees excluded from the finance 
charge under Sec. 226.4(e) are not required to be disclosed as other 
charges under Sec. 226.6(b), these charges may be included in the amount 
shown as closing costs or settlement costs on the periodic statement, if 
the charges were itemized and disclosed as part of the closing costs or 
settlement costs on the initial disclosure statement. (See comment 6(b)-
1 for examples of other charges.)
    2. Date. The date of imposing or debiting other charges need not be 
disclosed.
    3. Total. Disclosure of the total amount of other charges is 
optional.
    4. Itemization--types of other charges. Each type of other charge 
(such as late payment charges, over-the-credit-limit charges, ATM fees 
that are not finance charges, and membership fees) imposed during the 
cycle must be separately itemized; for example, disclosure of only a 
total of other charges attributable to both an over-the-credit-limit 
charge and a late payment charge would not be permissible. Other charges 
of the same type may be disclosed, however, individually or as a total. 
For example, three ATM fees of $1 may be listed separately or as $3.
    7(i) Closing date of billing cycle; new balance.
    1. Credit balances. See Comment 7(a)-1.
    2. Multifeatured plans. In a multifeatured plan, the new balance may 
be disclosed for each feature or for the plan as a whole. If separate 
new balances are disclosed, a total new balance is optional.
    3. Accrued finance charges allocated from payments. Some plans 
provide that the amount of the finance charge that has accrued since the 
consumer's last payment is directly deducted from each new payment, 
rather than being separately added to each statement and therefore 
reflected as an increase in the obligation. In such a plan, the new 
balance need not reflect finance charges accrued since the last payment.
    7(j) Free-ride period.
    1. Wording. Although the creditor is required to indicate any time 
period the consumer may have to pay the balance outstanding without 
incurring additional finance charges, no specific wording is required, 
so long as the language used is consistent with that used on the initial 
disclosure statement. For example, ``To avoid additional finance 
charges, pay the new balance before ------'' would suffice.
    7(k) Address for notice of billing errors.
    1. Wording. The periodic statement must contain the address for 
consumers to use in asserting billing errors under Sec. 226.13. Since 
all disclosures must be ``clear,'' the statement should indicate the 
general purpose for the address, although no elaborate explanation or 
particular wording is required.
    2. Telephone number. A telephone number may be included, but the 
address for billing error inquiries, which is the required disclosure, 
must be clear and conspicuous. One way to ensure that the address is 
clear and conspicuous is to include a precautionary instruction that 
telephoning will not preserve the consumer's billing error rights. Both 
of the billing rights statements in appendix G contain such a 
precautionary instruction, so that a creditor could, by including either 
of these statements with each periodic statement, ensure that the 
required address is provided in a clear and conspicuous manner.

                               References

    Statute: Section 127(b).
    Previous regulation:  Section 226.7(b)(1) and Interpretation 
Secs. 226.701, 226.703, 226.706, and 226.707.
    Other sections: Sections 226.4 through 226.6, 226.8, 226.14, and 
appendix G.
    1981 changes: Under Sec. 226.7, required terminology is no longer 
mandated except for the terms finance charge and annual percentage rate. 
The requirement in the previous regulation about the location of 
disclosures has been deleted.
    Under the revised Sec. 226.7, disclosure of credits to the account 
no longer have to indicate the type of credit. A short disclosure for 
variable rate plans must be included on the periodic statement. 
Disclosures relating to multifeatured accounts have been clarified.
    Section 226.7 now specifically requires a periodic statement 
disclosure of other charges (non-finance charges related to the plan) 
that are actually imposed during the billing cycle.
    Disclosures about minimum charges that might be imposed on the 
account and about the Comparative Index of Credit Cost have been 
deleted.

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              Section 226.8--Identification of Transactions

    1. Application of identification rules. Section 226.8 deals with the 
requirement (imposed by Sec. 226.7(b)) for identification of each credit 
transaction made during the billing cycle. The rules for identifying 
transactions on periodic statements vary, depending on whether:

     The transaction involves sale credit (purchases) or nonsale 
credit (cash advances, for example).
     An actual copy of the credit document reflecting the 
transaction accompanies the statement (this is the distinction between 
so-called country club and descriptive billing).
     The creditor and seller are the same or related persons.

    2. Sale credit. The term sale credit refers to a purchase in which 
the consumer uses a credit card or otherwise directly accesses an open-
end line of credit (see Comment 8-3 if access is by means of a check) to 
obtain goods or services from a merchant, whether or not the merchant is 
the card issuer. Sale credit even includes:

     Premiums for voluntary credit life insurance whether sold 
by the card issuer or another person.
     The purchase of funds-transfer services (such as telegrams) 
from an intermediary.

    3. Nonsale credit. The term nonsale credit refers to any form of 
loan credit including, for example:

     Cash advances.
     Overdraft checking.
     The use of a supplemental credit device in the form of a 
check or draft or the use of the overdraft feature of a debit card, even 
if such use is in connection with a purchase of goods or services.
     Miscellaneous debits to remedy mispostings, returned 
checks, and similar entries.

    4. Actual copy. An actual copy does not include a recreated 
document. It includes, for example, a duplicate, carbon, or photographic 
copy, but does not include a so-called ``facsimile draft'' in which the 
required information is typed, printed, or otherwise recreated. If a 
facsimile draft is used, the creditor must follow the rules that apply 
when a copy of the credit document is not furnished.
    5. Same or related persons. For purposes of identifying 
transactions, the term same or related persons refers to, for example:

     Franchised or licensed sellers of a creditor's product or 
service.
     Sellers who assign or sell open-end sales accounts to a 
creditor or arrange for such credit under a plan that allows the 
consumer to use the credit only in transactions with that seller.

    A seller is not related to the creditor merely because the seller 
and the creditor have an agreement authorizing the seller to honor the 
creditor's credit card.

    6. Transactions resulting from promotional material. In describing 
transactions with third-party sellers resulting from promotional 
material mailed by the creditor, creditors may use the rules either for 
related or for non-related sellers and creditors.
    7. Credit insurance offered through the creditor. When credit 
insurance that is not part of the finance charge (for example, voluntary 
credit life insurance) is offered to the consumer through the creditor, 
but is actually provided by another company, the creditor has the option 
of identifying the premiums in one of two ways on the periodic 
statement. The creditor may describe the premiums using either the rule 
in Sec. 226.8(a)(2) for related sellers and creditors, or the rule in 
Sec. 226.8(a)(3) for non-related sellers and creditors. This means, 
therefore, that the creditor may identify the insurance either by 
providing, under Sec. 226.8(a)(2), a brief identification of the 
services provided (for example, credit life insurance), or by 
disclosing, under Sec. 226.8(a)(3), the name and address of the company 
providing the insurance (for example, ABC Insurance Company, New York, 
New York). In either event, the creditor would, of course, also provide 
the amount and the date of the transaction.
    8. Transactions involving creditors and sellers with corporate 
connections. In a credit card plan established for use primarily with 
sellers that have no corporate connection with the creditor, the 
creditor may describe all transactions under the plan by using the rules 
in Sec. 226.8(a)(3)--creditor and seller not same or related persons--
including transactions involving a seller that has a corporate 
connection with the creditor. In other credit card plans, the creditor 
may describe transactions involving a seller that has a corporate 
connection with the creditor, such as subsidiary-parent, using the rules 
in Sec. 226.8(a)(3) where it is unlikely that the consumer would know of 
the corporate connection between the creditor and the seller--for 
example, where the names of the creditor and the seller are not similar, 
and the periodic statement is issued in the name of the creditor only.
    8(a) Sale credit.
    1. Date--disclosure of only one date. If only the required date is 
disclosed for a transaction, the creditor need not identify it as the 
``transaction date.'' If the creditor discloses more than one date (for 
example, the transaction date and the posting date), the creditor must 
identify each.
    2. Date--disclosure of month and day only. The month and day are 
sufficient disclosure of the date on which the transaction took place, 
unless the posting of the transaction

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is delayed so long that the year is needed for a clear disclosure to the 
consumer.
    3. When transaction takes place. If the consumer conducts the 
transaction in person, the date of the transaction is the calendar date 
on which the consumer made the purchase or order, or secured the 
advance. For transactions billed to the account on an ongoing basis 
(other than installments to pay a precomputed amount), the date of the 
transaction is the date on which the amount is debited to the account. 
This might include, for example, monthly insurance premiums. For mail or 
telephone orders, a creditor may disclose as the transaction date either 
the invoice date, the debiting date, or the date the order was placed by 
telephone.
    4. Transactions not billed in full. If sale transactions are not 
billed in full on any single statement, but are billed periodically in 
precomputed installments, the first periodic statement reflecting the 
transaction must show either the full amount of the transaction together 
with the date the transaction actually took place; or the amount of the 
first installment that was debited to the account together with the date 
of the transaction or the date on which the first installment was 
debited to the account. In any event, subsequent periodic statements 
should reflect each installment due, together with either any other 
identifying information required by Sec. 226.8(a) (such as the seller's 
name and address in a three-party situation) or other appropriate 
identifying information relating the transaction to the first billing. 
The debiting date for the particular installment, or the date the 
transaction took place, may be used as the date of the transaction on 
these subsequent statements.
    8(a)(1) Copy of credit document provided.
    1. Format. The information required by Sec. 226.8(a)(1) may appear 
either on the copy of the credit document reflecting the transaction or 
on the periodic statement.
    8(a)(2) Copy of credit document not provided--creditor and seller 
same or related person(s).
    1. Property identification--sufficiency of description. The ``brief 
identification'' provision in Sec. 226.8(a)(2) requires a designation 
that will enable the consumer to reconcile the periodic statement with 
the consumer's own records. In determining the sufficiency of the 
description, the following rules apply:

     While item-by-item descriptions are not necessary, 
reasonable precision is required. For example, merchandise, 
miscellaneous, second-hand goods, or promotional items would not 
suffice.
     A reference to a department in a sales establishment that 
accurately conveys the identification of the types of property or 
services available in the department is sufficient--for example, 
jewelry, sporting goods.

    2. Property identification--number or symbol. The ``brief 
identification'' may be made by disclosing on the periodic statement a 
number or symbol that is related to an identification list printed 
elsewhere on the statement.
    3. Property identification--additional document. In making the 
``brief identification'' required by Sec. 226.8(a)(2), the creditor may 
identify the property by describing the transaction on a document 
accompanying the periodic statement (for example, on a facsimile draft). 
(See also footnote 17.)
    4. Small creditors. Under footnote 18, which provides a further 
identification alternative to a creditor with fewer than 15,000 
accounts, the creditor need count only its own accounts and not others 
serviced by the same data processor or other shared-service provider.
    5. Date of transaction--foreign transactions. In a foreign 
transaction, the debiting date may be considered the transaction date.
    8(a)(3) Copy of credit document not provided--creditor and seller 
not same or related person(s).
    1. Seller's name. The requirement contemplates that the seller's 
name will appear on the periodic statement in essentially the same form 
as it appears on transaction documents provided to the consumer at the 
time of the sale. The seller's name may also be disclosed as, for 
example:

     A more complete spelling of the name that was 
alphabetically abbreviated on the receipt or other credit document.
     An alphabetical abbreviation of the name on the periodic 
statement even if the name appears in a more complete spelling on the 
receipt or other credit document. Terms that merely indicate the form of 
a business entity, such as Inc., Co., or Ltd., may always be omitted.

    2. Location of transaction. The disclosure of the location where the 
transaction took place generally requires an indication of both the 
city, and the state or foreign country. If the seller has multiple 
stores or branches within that city, the creditor need not identify the 
specific branch at which the sale occurred.
    3. No fixed location. When no meaningful address is available 
because the consumer did not make the purchase at any fixed location of 
the seller, the creditor:
     May omit the address.
     May provide some other identifying designation, such as 
aboard plane, ABC Airways Flight, customer's home, telephone order, or 
mail order.

    4. Date of transaction--foreign transactions. See Comment 8(a)(2)-5.
    8(b) Nonsale credit.
    1. Date of transaction. If only one of the required dates is 
disclosed for a transaction,

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the creditor need not identify it. If the creditor discloses more than 
one date (for example, transaction date and debiting date), the creditor 
must identify each.
    2. Amount of transaction. If credit is extended under an overdraft 
checking account plan or by means of a debit card with an overdraft 
feature, the amount to be disclosed is that of the credit extension, not 
the face amount of the check or the total amount of the debit/credit 
transaction.
    3. Amount--disclosure on cumulative basis. If credit is extended 
under an overdraft checking account plan or by means of a debit card 
with an overdraft feature, the creditor may disclose the amount of the 
credit extensions on a cumulative daily basis, rather than the amount 
attributable to each check or each use of the debit/credit card.
    4. Identification of transaction type. The creditor may identify a 
transaction by describing the type of advance it represents, such as 
cash advance, loan, overdraft loan, or any readily understandable trade 
name for the credit program.

                               References

    Statute: Section 127(b)(2).
    Previous regulation: Section 226.7(k).
    Other sections: Section 226.7.
    1981 changes: Section 226.8 has been streamlined and reorganized to 
facilitate its use. Technical detail has been deleted from the 
Regulation for inclusion in the commentary. The Regulation implements 
the amended section 127(b)(2) of the Act by providing for protection 
from civil liability under certain circumstances when required 
information is not provided and by reducing disclosure responsibilities 
for certain small creditors. For descriptive billing of nonsale 
transactions, the regulation now permits the use of the debiting date in 
all cases.

            Section 226.9--Subsequent Disclosure Requirements

              9(a) Furnishing Statement of Billing Rights.

                        9(a)(1) Annual Statement

    1. General. The creditor may provide the annual billing rights 
statement:

     By sending it in one billing period per year to each 
consumer that gets a periodic statement for that period; or
     By sending a copy to all of its account holders sometime 
during the calendar year but not necessarily all in one billing period 
(for example, sending the annual notice in connection with renewal cards 
or when imposing annual membership fees).

    2. Substantially similar. See the commentary to appendix G-3.

                  9(a)(2) Alternative Summary Statement

    1. Changing from long-form to short-form statement and vice versa. 
If the creditor has been sending the long-form annual statement, and 
subsequently decides to use the alternative summary statement, the first 
summary statement must be sent no later than 12 months after the last 
long-form statement was sent. Conversely, if the creditor wants to 
switch to the long-form, the first long-form statement must be sent no 
later than 12 months after the last summary statement.
    2. Substantially similar. See the commentary to appendix G-4.

9(b) Disclosures for Supplemental Credit Devices and Additional Features

    1. Credit device--examples. Credit device includes, for example, a 
blank check, payee-designated check, blank draft or order, or 
authorization form for issuance of a check; it does not include a check 
issued payable to a consumer representing loan proceeds or the 
disbursement of a cash advance.
    2. Credit feature--examples. A new credit feature would include, for 
example:

     The addition of overdraft checking to an existing account 
(although the regular checks that could trigger the overdraft feature 
are not themselves devices).
     The option to use an existing credit card to secure cash 
advances, when previously the card could only be used for purchases.

                            Paragraph 9(b)(1)

    1. Same finance charge terms. If the new means of accessing the 
account is subject to the same finance charge terms as those previously 
disclosed, the creditor:
     Need only provide a reminder that the new device or feature 
is covered by the earlier disclosures. (For example, in mailing special 
checks that directly access the credit line, the creditor might give a 
disclosure such as ``Use this as you would your XYZ card to obtain a 
cash advance from our bank''); or
     May remake the Sec. 226.6(a) finance charge disclosures.

                            Paragraph 9(b)(2)

    1. Different finance charge terms. If the finance charge terms are 
different from those previously disclosed, the creditor may satisfy the 
requirement to give the finance charge terms either by giving a complete 
set of new initial disclosures reflecting the terms of the added device 
or feature or by giving only the finance charge disclosures for the 
added device or feature.

[[Page 344]]

                          9(c) Change in Terms

    1. Changes initially disclosed. No notice of a change in terms need 
be given if the specific change is set forth initially, such as: Rate 
increases under a properly disclosed variable-rate plan, a rate increase 
that occurs when an employee has been under a preferential rate 
agreement and terminates employment, or an increase that occurs when the 
consumer has been under an agreement to maintain a certain balance in a 
savings account in order to keep a particular rate and the account 
balance falls below the specified minimum. In contrast, notice must be 
given if the contract allows the creditor to increase the rate at its 
discretion but does not include specific terms for an increase (for 
example, when an increase may occur under the creditor's contract 
reservation right to increase the periodic rate). The rules in 
Sec. 226.5b(f) relating to home equity plans, however, limit the ability 
of a creditor to change the terms of such plans.
    2. State law issues. Examples of issues not addressed by 
Sec. 226.9(c) because they are controlled by State or other applicable 
law include:

     The types of changes a creditor may make.
     How changed terms affect existing balances, such as when a 
periodic rate is changed and the consumer does not pay off the entire 
existing balance before the new rate takes effect.

    3. Change in billing cycle. Whenever the creditor changes the 
consumer's billing cycle, it must give a change-in-terms notice if the 
change either affects any of the terms required to be disclosed under 
Sec. 226.6 or increases the minimum payment, unless an exception under 
Sec. 226.9(c)(2) applies; for example, the creditor must give advance 
notice if the creditor initially disclosed a 25-day free-ride period on 
purchases and the consumer will have fewer days during the billing cycle 
change.

                     9(c)(1) Written Notice Required

    1. Affected consumers. Change-in-terms notices need only go to those 
consumers who may be affected by the change. For example, a change in 
the periodic rate for check overdraft credit need not be disclosed to 
consumers who do not have that feature on their accounts.
    2. Timing--effective date of change. The rule that the notice of the 
change in terms be provided at least 15 days before the change takes 
effect permits mid-cycle changes when there is clearly no retroactive 
effect, such as the imposition of a transaction fee. Any change in the 
balance computation method, in contrast, would need to be disclosed at 
least 15 days prior to the billing cycle in which the change is to be 
implemented.
    3. Timing--advance notice not required. Advance notice of 15 days is 
not necessary--that is, a notice of change in terms is required, but it 
may be mailed or delivered as late as the effective date of the change--
in two circumstances:

 If there is an increased periodic rate or any other finance 
charge attributable to the consumer's delinquency or default.
 If the consumer agrees to the particular change. This provision 
is intended for use in the unusual instance when a consumer substitutes 
collateral or when the creditor can advance additional credit only if a 
change relatively unique to that consumer is made, such as the 
consumer's providing additional security or paying an increased minimum 
payment amount. Therefore, the following are not ``agreements'' between 
the consumer and the creditor for purposes of Sec. 226.9(c)(1): The 
consumer's general acceptance of the creditor's contract reservation of 
the right to change terms; the consumer's use of the account (which 
might imply acceptance of its terms under State law); and the consumer's 
acceptance of a unilateral term change that is not particular to that 
consumer, but rather is of general applicability to consumers with that 
type of account.

    4. Form of change-in-terms notice. A complete new set of the initial 
disclosures containing the changed term complies with Sec. 226.9(c) if 
the change is highlighted in some way on the disclosure statement, or if 
the disclosure statement is accompanied by a letter or some other insert 
that indicates or draws attention to the term change.
    5. Security interest change--form of notice. A copy of the security 
agreement that describes the collateral securing the consumer's account 
may be used as the notice, when the term change is the addition of a 
security interest or the addition or substitution of collateral.
    6. Changes to home equity plans entered into on or after November 7, 
1989. Section 226.9(c) applies when, by written agreement under 
Sec. 226.5b(f)(3)(iii), a creditor changes the terms of a home equity 
plan--entered into on or after November 7, 1989--at or before its 
scheduled expiration, for example, by renewing a plan on terms different 
from those of the original plan. In disclosing the change:
     If the index is changed, the maximum annual percentage rate 
is increased (to the limited extent permitted by Sec. 226.30), or a 
variable-rate feature is added to a fixed-rate plan, the creditor must 
include the disclosures required by Sec. 226.5b (d)(12)(x) and 
(d)(12)(xi), unless these disclosures are unchanged from those given 
earlier.
      If the minimum payment requirement is changed, the 
creditor must include the disclosures required by Sec. 226.5(d)(5)(iii) 
(and, in variable-rate plans, the disclosures required

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by Sec. 226.5b (d)(12)(x) and (d)(12)(xi)) unless the disclosures given 
earlier contained representative examples covering the new minimim 
payment requirement. (See the commentary to Sec. 226.5b (d)(5)(iii), 
(d)(12)(x) and (d)(12)(xi) for a discussion of representative examples.)

When the terms are changed pursuant to a written agreement as described 
in Sec. 226.5b(f)(3)(iii), the advance-notice requirement does not 
apply.

                       9(c)(2) Notice Not Required

    1. Changes not requiring notice. The following are examples of 
changes that do not require a change-in-terms notice:

     A change in the consumer's credit limit.
     A change in the name of the credit card or credit card 
plan.
     The substitution of one insurer for another.
     A termination or suspension of credit privileges.
     Changes arising merely by operation of law; for example, if 
the creditor's security interest in a consumer's car automatically 
extends to the proceeds when the consumer sells the car.

    2. Skip features. If a credit program allows consumers to skip or 
reduce one or more payments during the year, or involves temporary 
reductions in finance charges, no notice of the change in terms is 
required either prior to the reduction or upon resumption of the higher 
rates or payments if these features are explained on the initial 
disclosure statement (including an explanation of the terms upon 
resumption). For example, a merchant may allow consumers to skip the 
December payment to encourage holiday shopping, or a teachers' credit 
union may not require payments during summer vacation. Otherwise, the 
creditor must give notice prior to resuming the original schedule or 
rate, even though no notice is required prior to the reduction. The 
change-in-terms notice may be combined with the notice offering the 
reduction. For example, the periodic statement reflecting the reduction 
or skip feature may also be used to notify the consumer of the 
resumption of the original schedule or rate, either by stating 
explicitly when the higher payment or charges resume, or by indicating 
the duration of the skip option. Language such as ``You may skip your 
October payment,'' or ``We will waive your finance charges for 
January,'' may serve as the change-in-terms notice.

                  9(c)(3)  Notice for Home Equity Plans

    1. Written request for reinstatement. If a creditor requires the 
request for reinstatement of credit privileges to be in writing, the 
notice under Sec. 226.9(c)(3) must state that fact.
    2. Notice not required. A creditor need not provide a notice under 
this paragraph if, pursuant to the commentary to Sec. 226.5b(f)(2), a 
creditor freezes a line or reduces a credit line rather than terminating 
a plan and accelerating the balance.

           9(d) Finance Charge Imposed at Time of Transaction

    1. Disclosure prior to imposition. A person imposing a finance 
charge at the time of honoring a consumer's credit card must disclose 
the amount of the charge, or an explanation of how the charge will be 
determined, prior to its imposition. This must be disclosed before the 
consumer becomes obligated for property or services that may be paid for 
by use of a credit card. For example, disclosure must be given before 
the consumer has dinner at a restaurant, stays overnight at a hotel, or 
makes a deposit guaranteeing the purchase of property or services.

         9(e)  Disclosures Upon Renewal of Credit or Charge Card

    1. Coverage. This paragraph applies to credit and charge card 
accounts of the type subject to 226.5a. (See Sec. 226.5a(a)(3) and the 
accompanying commentary for discussion of the types of accounts subject 
to Sec. 226.5a.) The disclosure requirements are triggered when a card 
issuer imposes any annual or other periodic fee on such an account, 
whether or not the card issuer originally was required to provide the 
application and solicitation disclosures described in Sec. 226.5a.
    2. Form. The disclosures under this paragraph must be clear and 
conspicuous, but need not appear in a tabular format or in a prominent 
location. The disclosures need not be in a form the cardholder can 
retain.
    3. Terms at renewal. Renewal notices must reflect the terms actually 
in effect at the time of renewal. For example, a card issuer that offers 
a preferential annual percentage rate to employees during their 
employment must send a renewal notice to employees disclosing the lower 
rate actually charged to employees (although the card issuer also may 
show the rate charged to the general public).
    4. Variable rate. If the card issuer cannot determine the rate that 
will be in effect if the cardholder chooses to renew a variable-rate 
account, the card issuer may disclose the rate in effect at the time of 
mailing or delivery of the renewal notice. Alternatively, the card 
issuer may use the rate as of a specified date (and then update the rate 
from time to time, for example, each calendar month) or use an estimated 
rate under Sec. 226.5(c).
    5. Renewals more frequent than annual. If a renewal fee is billed 
more often than annually, the renewal notice should be provided

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each time the fee is billed. In this instance, the fee need not be 
disclosed as an annualized amount. Alternatively, the card issuer may 
provide the notice no less than once every twelve months if the notice 
explains the amount and frequency of the fee that will be billed during 
the time period covered by the disclosure, and also discloses the fee as 
an annualized amount. The notice under this alternative also must state 
the consequences of a cardholder's decision to terminate the account 
after the renewal notice period has expired. For example, if a $2 fee is 
billed monthly but the notice is given annually, the notice must inform 
the cardholder that the monthly charge is $2, the annualized fee is $24, 
and $2 will be billed to the account each month for the coming year 
unless the cardholder notifies the card issuer. If the cardholder is 
obligated to pay an amount equal to the remaining unpaid monthly charges 
if the cardholder terminates the account during the coming year but 
after the first month, the notice must disclose that fact.
    6. Terminating credit availability. Card issuers have some 
flexibility in determining the procedures for how and when an account 
may be terminated. However, the card issuer must clearly disclose the 
time by which the cardholder must act to terminate the account to avoid 
paying a renewal fee. State and other applicable law govern whether the 
card issuer may impose requirements such as specifying that the 
cardholder's response be in writing or that the outstanding balance be 
repaid in full upon termination.
    7. Timing of termination by cardholder. When a card issuer provides 
notice under Sec. 226.9(e)(1), a cardholder must be given at least 30 
days or one billing cycle, whichever is less, from the date the notice 
is mailed or delivered to make a decision whether to terminate an 
account. When notice is given under Sec. 226.9(e)(2), a cardholder has 
30 days from mailing or delivery to decide to terminate an account.
    8. Timing of notices. A renewal notice is deemed to be provided when 
mailed or delivered. Similarly, notice of termination is deemed to be 
given when mailed or delivered.
    9. Prompt reversal of renewal fee upon termination. In a situation 
where a cardholder has provided timely notice of termination and a 
renewal fee has been billed to a cardholder's account, the card issuer 
must reverse or otherwise withdraw the fee promptly. Once a cardholder 
has terminated an account, no additional action by the cardholder may be 
required.

              9(e)(3)  Notification on Periodic Statements

    1. Combined disclosures. If a single disclosure is used to comply 
with both Secs. 226.9(e) and 226.7, the periodic statement must comply 
with the rules in Secs. 226.5a and 226.7. For example, the words grace 
period must be used and the name of the balance calculation method must 
be identified (if listed in Sec. 226.5a(g)) to comply with the 
requirements of Sec. 226.5a, even though the use of those terms would 
not otherwise be required for periodic statements under Sec. 226.7. A 
card issuer may include some of the renewal disclosures on a periodic 
statement and others on a separate document so long as there is some 
reference indicating that they relate to one another. All renewal 
disclosures must be provided to a cardholder at the same time.
    2. Preprinted notices on periodic statements. A card issuer may 
preprint the required information on its periodic statements. A card 
issuer that does so, however, using the advance notice option under 
Sec. 226.9(e)(1), must make clear on the periodic statement when the 
preprinted renewal disclosures are applicable. For example, the card 
issuer could include a special notice (not preprinted) at the 
appropriate time that the renewal fee will be billed in the following 
billing cycle, or could show the renewal date as a regular (preprinted) 
entry on all periodic statements.

         9(f)  Change in Credit Card Account Insurance Provider

    1. Coverage. This paragraph applies to credit card accounts of the 
type subject to Sec. 226.5a if credit insurance (typically life, 
disability, and unemployment insurance) is offered on the outstanding 
balance of such an account. (Credit card accounts subject to 
Sec. 226.9(f) are the same as those subject to Sec. 226.9(e); see 
comment 9(e)-1.) Charge card accounts are not covered by this paragraph. 
In addition, the disclosure requirements of this paragraph apply only 
where the card issuer initiates the change in insurance providers. For 
example, if the card issuer's current insurance provider is merged into 
or acquired by another company, these disclosures would not be required. 
Disclosures also need not be given in cases where card issuers pay for 
credit insurance themselves and do not separately charge the cardholder.
    2. No increase in rate or decrease in coverage. The requirement to 
provide the disclosure arises when the card issuer changes the provider 
of insurance, even if there will be no increase in the premium rate 
charged the consumer and no decrease in coverage under the insurance 
policy.
    3. Form of notice. If a substantial decrease in coverage will result 
from the change in providers, the card issuer either must explain the 
decrease or refer to an accompanying copy of the policy or group 
certificate for details of the new terms of coverage. (See the 
commentary to appendix G-13.)
    4. Discontinuation of insurance. In addition to stating that the 
cardholder may cancel the insurance, the card issuer may explain the 
effect the cancellation would have on the consumer's credit card plan.

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    5. Mailing by third party. Although the card issuer is responsible 
for the disclosures, the insurance provider or another third party may 
furnish the disclosures on the card issuer's behalf.

                9(f)(3)  Substantial Decrease in Coverage

    1. Determination. Whether a substantial decrease in coverage will 
result from the change in providers is determined by the two-part test 
in Sec. 226.9(f)(3): First, whether the decrease is in a significant 
term of coverage; and second, whether the decrease might reasonably be 
expected to affect a cardholder's decision to continue the insurance. If 
both conditions are met, the decrease must be disclosed in the notice.

                               References

    Statute: Section 127(a)(7).
    Other sections: Sections 226.4 through 226.7 and appendix G.
    Previous regulation: Section 226.7 (d) through (f) and (j) and 
Interpretation Secs. 226.705 and 226.708.
    1981 changes: Section 226.9(a) implements the statutory change that 
the long-form statement of billing rights be provided only once a year. 
The provision now permits two rather than one means of providing the 
long-form statement to consumers. The verbatim text of the annual 
statement is no longer required; creditors may use any version 
``substantially similar'' to the one in appendix G. If the creditor 
elects to use the alternative summary statement, the new regulation no 
longer requires that the long-form statement be sent upon receiving a 
billing error notice and at the consumer's request. The rules in 
Sec. 226.708 on switching the type of billing rights statement used have 
been modified.
    Under Sec. 226.9(b) disclosure requirements have been streamlined 
when supplemental credit devices or new credit features are added to an 
existing open-end plan.
    Section 226.9(c) substantially changes the change-in-terms rules. 
Change-in-terms disclosures must now be made 15 days before the 
effective date of the change, rather than 15 days before the billing 
cycle in which the change will take effect. The kinds of changes that 
will trigger disclosures have been reduced: change-in-terms notices are 
no longer required for the types of changes described in 
Sec. 226.9(c)(2). But the provision reverses Interpretation 
Sec. 226.705, which indicated that certain changes in the balance 
computation method did not require disclosure because they could result 
in lowered finance charges; now, any change in the balance computation 
method requires disclosure.
    When a finance charge is imposed at the time of a transaction, 
Sec. 226.9(d) only requires disclosure of the finance charge at point of 
sale; the amount financed and annual percentage rate figured in 
accordance with the closed-end credit provisions need no longer be 
disclosed. Furthermore, the finance charge disclosure now may be made 
orally by the person honoring the card.

              Section 226.10--Prompt Crediting of Payments

    10(a) General rule.
    1. Crediting date. Section 226.10(a) does not require the creditor 
to post the payment to the consumer's account on a particular date; the 
creditor is only required to credit the payment as of the date of 
receipt.
    2. Date of receipt. The ``date of receipt'' is the date that the 
payment instrument or other means of completing the payment reaches the 
creditor. For example:

     Payment by check is received when the creditor gets it, not 
when the funds are collected.
     In a payroll deduction plan in which funds are deposited to 
an asset account held by the creditor, and from which payments are made 
periodically to an open-end credit account, payment is received on the 
date when it is debited to the asset account (rather than on the date of 
the deposit), provided the payroll deduction method is voluntary and the 
consumer retains use of the funds until the contractual payment date.
     If the consumer elects to have payment made by a third-
party payor such as a financial institution, through a preauthorized 
payment or telephone bill-payment arrangement, payment is received when 
the creditor gets the third-party payor's check or other transfer 
medium, such as an electronic fund transfer, as long as the payment 
meets the creditor's requirements as specified under Sec. 226.10(b).

    10(b) Specific requirements for payments.
    1. Payment requirements. The creditor may specify requirements for 
making payments, such as:

     Requiring that payments be accompanied by the account 
number or the payment stub.
     Setting a cut-off hour for payment to be received, or set 
different hours for payment by mail and payments made in person.
     Specifying that only checks or money orders should be sent 
by mail.
     Specifying that payment is to be made in U.S. dollars.
     Specifying one particular address for receiving payments, 
such as a post office box.

The creditor may be prohibited, however, from specifying payment by 
preauthorized electronic fund transfer. (See section 913 of the 
Electronic Fund Transfer Act.)
    2. Payment requirements--limitations. Requirements for making 
payments must be reasonable; it should not be difficult for most 
consumers to make conforming payments. For example, it would not be 
reasonable to require that all payments be made in person between 10 
a.m. and 11 a.m., since this

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would require consumers to take time off from their jobs to deliver 
payments.
    3. Acceptance of non-conforming payments. If the creditor accepts a 
non-conforming payment (for example, payment at a branch office, when it 
had specified that payment be sent to headquarters), finance charges may 
accrue for the period between receipt and crediting of payments.
    4. Implied guidelines for payments. In the absence of specified 
requirements for making payments (see Sec. 226.10(b)):

     Payments may be made at any location where the creditor 
conducts business.
     Payments may be made any time during the creditor's normal 
business hours.
     Payments may be made by cash, money order, draft, or other 
similar instrument in properly negotiable form, or by electronic fund 
transfer if the creditor and consumer have so agreed.

                               References

    Statute: Section 164.
    Other sections: Section 226.7.
    Previous regulation: Section 226.7(g).
    1981 changes: Much of the explanatory detail of the previous 
regulation is now in the commentary. The revised regulation gives the 
creditor 5 days in which to credit non-conforming payments, whereas the 
previous regulation required the crediting of such payments promptly, 
with an outside limit of 5 days. The 5 days in which to credit are 
available whenever the creditor accepts payment that does not conform to 
the creditor's disclosed specifications, in contrast to the previous 
regulation, which only allowed deferred crediting for payments made at 
the wrong location.

              Section 226.11--Treatment of Credit Balances

    1. Timing of refund. The creditor may also fulfill its obligations 
under Sec. 226.11 by:

     Refunding any credit balance to the consumer immediately.
     Refunding any credit balance prior to receiving a written 
request (under Sec. 226.11(b)) from the consumer.
     Making a good faith effort to refund any credit balance 
before 6 months have passed. If that attempt is unsuccessful, the 
creditor need not try again to refund the credit balance at the end of 
the 6-month period.

    2. Amount of refund. The phrase any part of the credit balance 
remaining in the account in Sec. 226.11(b) and (c) means the amount of 
the credit balance at the time the creditor is required to make the 
refund. The creditor may take into consideration intervening purchases 
or other debits to the consumer's account (including those that have not 
yet been reflected on a periodic statement) that decrease or eliminate 
the credit balance.
    Paragraph 11(b).
    1. Written requests--standing orders. The creditor is not required 
to honor standing orders requesting refunds of any credit balance that 
may be created on the consumer's account.
    Paragraph 11(c).
    1. Good faith effort to refund. The creditor must take positive 
steps to return any credit balance that has remained in the account for 
over 6 months. This includes, if necessary, attempts to trace the 
consumer through the consumer's last known address or telephone number, 
or both.
    2. Good faith effort unsuccessful. Section 226.11 imposes no further 
duties on the creditor if a good faith effort to return the balance is 
unsuccessful. The ultimate disposition of the credit balance (or any 
credit balance of $1 or less) is to be determined under other applicable 
law.

                               References

    Statute: Section 165.
    Previous regulation: Section 226.7(h).
    1981 changes: Under the previous regulation, the creditor's duty to 
refund credit balances applied only to ``excess payments''; Sec. 226.11 
of the revised regulation implements the amendments to section 165 of 
the statute which impose refunding duties on the creditor whatever the 
source of the credit balance. The revised regulation permits the 
creditor, in computing the refund, to take account of intervening 
debits, not just the difference between the previous balance and the 
overpayment as is provided in the previous regulation. The revised 
regulation gives the creditor 7 business days in which to make the 
refund after receiving the consumer's written request, whereas the 
previous regulation required the creditor to make the refund promptly, 
with an outside limit of 5 business days. This provision also implements 
the amended statute by requiring a good faith effort to refund the 
credit balance after 6 months.

             Section 226.12--Special Credit Card Provisions

    1. Scope. Sections 226.12(a) and (b) deal with the issuance and 
liability rules for credit cards, whether the card is intended for 
consumer, business, or any other purposes. Sections 226.12(a) and (b) 
are exceptions to the general rule that the regulation applies only to 
consumer credit. (See Secs. 226.1 and 226.3.)
    12(a) Issuance of credit cards.

                           Paragraph 12(a)(1)

    1. Explicit request. A request or application for a card must be 
explicit. For example, a request for overdraft privileges on a checking 
account does not constitute an application for a credit card with 
overdraft checking features.

[[Page 349]]

    2. Addition of credit features. If the consumer has a non-credit 
card, the addition of credit features to the card (for example, the 
granting of overdraft privileges on a checking account when the consumer 
already has a check guarantee card) constitutes issuance of a credit 
card.
    3. Variance of card from request. The request or application need 
not correspond exactly to the card that is issued. For example:

     The name of the card requested may be different when 
issued.
     The card may have features in addition to those reflected 
in the request or application.

    4. Permissible form of request. The request or application may be 
oral (in response to a telephone solicitation by a card issuer, for 
example) or written.
    5. Time of issuance. A credit card may be issued in response to a 
request made before any cards are ready for issuance (for example, if a 
new program is established), even if there is some delay in issuance.
    6. Persons to whom cards may be issued. A card issuer may issue a 
credit card to the person who requests it, and to anyone else for whom 
that person requests a card and who will be an authorized user on the 
requester's account. In other words, cards may be sent to consumer A on 
A's request, and also (on A's request) to consumers B and C, who will be 
authorized users on A's account. In these circumstances, the following 
rules apply:

     The additional cards may be imprinted in either A's name or 
in the names of B and C.
     No liability for unauthorized use (by persons other than B 
and C), not even the $50, may be imposed on B or C since they are merely 
users and not cardholders as that term is defined in Sec. 226.2 and used 
in Sec. 226.12(b); of course, liability of up to $50 for unauthorized 
use of B's and C's cards may be imposed on A.
     Whether B and C may be held liable for their own use, or on 
the account generally, is a matter of state or other applicable law.

    7. Issuance of non-credit cards. The issuance of an unsolicited 
device that is not, but may become, a credit card, is not prohibited 
provided:

     The device has some substantive purpose other than 
obtaining credit, such as access to non-credit services offered by the 
issuer;
     It cannot be used as a credit card when issued; and
     A credit capability will be added only on the recipient's 
request.

    For example, the card issuer could send a check guarantee card on an 
unsolicited basis, but could not add a credit feature to that card 
without the consumer's specific request. The re-encoding of a debit card 
or other existing card that had no credit privileges when issued would 
be appropriate after the consumer has specifically requested a card with 
credit privileges. Similarly, the card issuer may add a credit feature, 
for example, by reprogramming the issuer's computer program or automated 
teller machines, or by a similar program adjustment.
    8. Unsolicited issuance of PINs. A card issuer may issue personal 
identification numbers (PINs) to existing credit cardholders without a 
specific request from the cardholders, provided the PINs cannot be used 
alone to obtain credit. For example, the PINs may be necessary if 
consumers wish to use their existing credit cards at automated teller 
machines or at merchant locations with point-of-sale terminals that 
require PINs.

                           Paragraph 12(a)(2)

    1. Renewal. Renewal generally contemplates the regular replacement 
of existing cards because of, for example, security reasons or new 
technology or systems. It also includes the re-issuance of cards that 
have been suspended temporarily, but does not include the opening of a 
new account after a previous account was closed.
    2. Substitution--examples. Substitution encompasses the replacement 
of one card with another because the underlying account relationship has 
changed in some way--such as when the card issuer has:

     Changed its name.
     Changed the name of the card.
     Changed the credit or other features available on the 
account. For example, the original card could be used to make purchases 
and obtain cash advances at teller windows. The substitute card might be 
usable, in addition, for obtaining cash advances through automated 
teller machines. (If the substitute card constitutes an access device, 
as defined in Regulation E, then the Regulation E issuance rules would 
have to be followed.) The substitution of one card with another on an 
unsolicited basis is not permissible, however, where in conjunction with 
the substitution an additional credit card account is opened and the 
consumer is able to make new purchases or advances under both the 
original and the new account with the new card. For example, if a retail 
card issuer replaces its credit card with a combined retailer/bank card, 
each of the creditors maintains a separate account, and both accounts 
can be accessed for new transactions by use of the new credit card, the 
card cannot be provided to a consumer without solicitation.
     Substituted a card user's name on the substitute card for 
the cardholder's name appearing on the original card.
     Changed the merchant base. However, the new card must be 
honored by at least one of the persons that honored the original card.


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    3. Substitution--successor card issuer. Substitution also occurs 
when a successor card issuer replaces the original card issuer (for 
example, when a new card issuer purchases the accounts of the original 
issuer and issues its own card to replace the original one). A 
permissible substitution exists even if the original issuer retains the 
existing receivables and the new card issuer acquires the right only to 
future receivables, provided use of the original card is cut off when 
use of the new card becomes possible.
    4. Substitution--non-credit-card plan. A credit card that replaces a 
retailer's open-end credit plan not involving a credit card is not 
considered a substitute for the retailer's plan--even if the consumer 
used the retailer's plan. A credit card cannot be issued in these 
circumstances without a request or application.
    5. One-for-one rule. An accepted card may be replaced by no more 
than one renewal or substitute card. For example, the card issuer may 
not replace a credit card permitting purchases and cash advances with 
two cards, one for the purchases and another for the cash advances.
    6. One-for-one rule--exception. The regulation does not prohibit the 
card issuer from replacing a debit/credit card with a credit card and 
another card with only debit functions (or debit functions plus an 
associated overdraft capability), since the latter card could be issued 
on an unsolicited basis under Regulation E.
    7. Methods of terminating replaced card. The card issuer need not 
physically retrieve the original card, provided the old card is voided 
in some way; for example:

     The issuer includes with the new card a notification that 
the existing card is no longer valid and should be destroyed 
immediately.
     The original card contained an expiration date.
     The card issuer, in order to preclude use of the card, 
reprograms computers or issues instructions to authorization centers.

    8. Incomplete replacement. If a consumer has duplicate credit cards 
on the same account (Card A--one type of bank credit card, for example), 
the card issuer may not replace the duplicate cards with one Card A and 
one Card B (Card B--another type of bank credit card) unless the 
consumer requests Card B.
    9. Multiple entities. Where multiple entities share responsibilities 
with respect to a credit card issued by one of them, the entity that 
issued the card may replace it on an unsolicited basis, if that entity 
terminates the original card by voiding it in some way, as described in 
comment 12(a)(2)-7. The other entity or entities may not issue a card on 
an unsolicited basis in these circumstances.
    12(b) Liability of cardholder for unauthorized use.
    1. Meaning of cardholder. For purposes of this provision, cardholder 
includes any person (including organizations) to whom a credit card is 
issued for any purpose, including business. When a corporation is the 
cardholder, required disclosures should be provided to the corporation 
(as opposed to an employee user).
    2. Imposing liability. A card issuer is not required to impose 
liability on a cardholder for the unauthorized use of a credit card; if 
the card issuer does not seek to impose liability, the issuer need not 
conduct any investigation of the cardholder's claim.
    3. Reasonable investigation. If a card issuer seeks to impose 
liability when a claim of unauthorized use is made by a cardholder, the 
card issuer must conduct a reasonable investigation of the claim. In 
conducting its investigation, the card issuer may reasonably request the 
cardholder's cooperation. The card issuer may not automatically deny a 
claim based solely on the cardholder's failure or refusal to comply with 
a particular request; however, if the card issuer otherwise has no 
knowledge of facts confirming the unauthorized use, the lack of 
information resulting from the cardholder's failure or refusal to comply 
with a particular request may lead the card issuer reasonably to 
terminate the investigation. The procedures involved in investigating 
claims may differ, but actions such as the following represent steps 
that a card issuer may take, as appropriate, in conducting a reasonable 
investigation:
    i. Reviewing the types or amounts of purchases made in relation to 
the cardholder's previous purchasing pattern.
    ii. Reviewing where the purchases were delivered in relation to the 
cardholder's residence or place of business.
    iii. Reviewing where the purchases were made in relation to where 
the cardholder resides or has normally shopped.
    iv. Comparing any signature on credit slips for the purchases to the 
signature of the cardholder or an authorized user in the card issuer's 
records, including other credit slips.
    v. Requesting documentation to assist in the verification of the 
claim.
    vi. Requesting a written, signed statement from the cardholder or 
authorized user.
    vii. Requesting a copy of a police report, if one was filed.
    viii. Requesting information regarding the cardholder's knowledge of 
the person who allegedly used the card or of that person's authority to 
do so.
    12(b)(1) Limitation on amount.
    1. Meaning of authority. Footnote 22 defines unauthorized use in 
terms of whether the user has actual, implied, or apparent authority. 
Whether such authority exists must be determined under state or other 
applicable law.

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    2. Liability limits--dollar amounts. As a general rule, the 
cardholder's liability for a series of unauthorized uses cannot exceed 
either $50 or the value obtained through the unauthorized use before the 
care issuer is notified, whichever is less.
    12(b)(2) Conditions of liability.
    1. Issuer's option not to comply. A card issuer that chooses not to 
impose any liability on cardholders for unauthorized use need not comply 
with the disclosure and identification requirements discussed below.
    Paragraph 12(b)(2)(ii).
    1. Disclosure of liability and means of notifying issuer. The 
disclosures referred to in Sec. 226.12(b)(2)(ii) may be given, for 
example, with the initial disclosures under Sec. 226.6, on the credit 
card itself, or on periodic statements. They may be given at any time 
preceding the unauthorized use of the card.
    Paragraph 12(b)(2)(iii).
    1. Means of identifying cardholder or user. To fulfill the condition 
set forth in Sec. 226.12(b)(2)(iii), the issuer must provide some method 
whereby the cardholder or the authorized user can be identified. This 
could include, for example, signature, photograph, or fingerprint on the 
card, or electronic or mechanical confirmation.
    2. Identification by magnetic strip. Unless a magnetic strip (or 
similar device not readable without physical aids) must be used in 
conjunction with a secret code or the like, it would not constitute 
sufficient means of identification. Sufficient identification also does 
not exist if a pool or group card, issued to a corporation and signed by 
a corporate agent who will not be a user of the card, is intended to be 
used by another employee for whom no means of identification is 
provided.
    3. Transactions not involving card. The cardholder may not be held 
liable under Sec. 226.12(b) when the card itself (or some other 
sufficient means of identification of the cardholder) is not presented. 
Since the issuer has not provided a means to identify the user under 
these circumstances, the issuer has not fulfilled one of the conditions 
for imposing liability. For example, when merchandise is ordered by 
telephone by a person without authority to do so, using a credit card 
account number or other number only (which may be widely available), no 
liability may be imposed on the cardholder.
    12(b)(3) Notification to card issuer.
    1. How notice must be provided. Notice given in a normal business 
manner--for example, by mail, telephone, or personal visit--is effective 
even though it is not given to, or does not reach, some particular 
person within the issuer's organization. Notice also may be effective 
even though it is not given at the address or phone number disclosed by 
the card issuer under Sec. 226.12(b)(2)(ii).
    2. Who must provide notice. Notice of loss, theft, or possible 
unauthorized use need not be initiated by the cardholder. Notice is 
sufficient so long as it gives the pertinent information which would 
include the name or card number of the cardholder and an indication that 
unauthorized use has or may have occurred.
    3. Relationship to Sec. 226.13. The liability protections afforded 
to cardholders in Sec. 226.12 do not depend upon the cardholder's 
following the error resolution procedures in Sec. 226.13. For example, 
the written notification and time limit requirements of Sec. 226.13 do 
not affect the section 226.12 protections.
    12(b)(5) Business use of credit cards.
    1. Agreement for higher liability for business use cards. The card 
issuer may not rely on Sec. 226.12(b)(5) if the business is clearly not 
in a position to provide 10 or more cards to employees (for example, if 
the business has only 3 employees). On the other hand, the issuer need 
not monitor the personnel practices of the business to make sure that it 
has at least 10 employees at all times.
    2. Unauthorized use by employee. The protection afforded to an 
employee against liability for unauthorized use in excess of the limits 
set in Sec. 226.12(b) applies only to unauthorized use by someone other 
then the employee. If the employee uses the card in an unauthorized 
manner, the regulation sets no restriction on the employee's potential 
liability for such use.
    12(c) Right of cardholder to assert claims or defenses against card 
issuer.
    1. Relationship to Sec. 226.13. The Sec. 226.12(c) credit card 
``holder in due course'' provision deals with the consumer's right to 
assert against the card issuer a claim or defense concerning property or 
services purchased with a credit card, if the merchant has been 
unwilling to resolve the dispute. Even though certain merchandise 
disputes, such as non-delivery of goods, may also constitute ``billing 
errors'' under Sec. 226.13, that section operates independently of 
Sec. 226.12(c). The cardholder whose asserted billing error involves 
undelivered goods may institute the error resolution procedures of 
Sec. 226.13; but whether or not the cardholder has done so, the 
cardholder may assert claims or defenses under Sec. 226.12(c). 
Conversely, the consumer may pay a disputed balance and thus have no 
further right to assert claims and defenses, but still may assert a 
billing error if notice of that billing error is given in the proper 
time and manner. An assertion that a particular transaction resulted 
from unauthorized use of the card could also be both a ``defense'' and a 
billing error.
    2. Claims and defenses assertible. Section 226.12(c) merely 
preserves the consumer's right to assert against the card issuer any 
claims or defenses that can be asserted against the merchant. It does 
not determine what claims or defenses are valid as to the merchant; this 
determination must be made under state or other applicable law.
    12(c)(1) General rule.

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    1. Situations excluded and included. The consumer may assert claims 
or defenses only when the goods or services are ``purchased with the 
credit card.'' This could include:

      Mail or telephone orders, if the purchase is charged to 
the credit card account.

    But it would exclude:

      Use of a credit card to obtain a cash advance, even if the 
consumer then uses the money to purchase goods or services. Such a 
transaction would not involve ``property or services purchased with the 
credit card.''
      The purchase of goods or services by use of a check 
accessing an overdraft account and a credit card used solely for 
identification of the consumer. (On the other hand, if the credit card 
is used to make partial payment for the purchase and not merely for 
identification, the right to assert claims or defenses would apply to 
credit extended via the credit card, although not to the credit extended 
on the overdraft line.)
      Purchases made by use of a check guarantee card in 
conjunction with a cash advance check (or by cash advance checks alone). 
See footnote 24. A cash advance check is a check that, when written, 
does not draw on an asset account; instead, it is charged entirely to an 
open-end credit account.
      Purchases effected by use of either a check guarantee card 
or a debit card when used to draw on overdraft credit lines (see 
footnote 24). The debit card exemption applies whether the card accesses 
an asset account via point-of-sale terminals, automated teller machines, 
or in any other way, and whether the card qualifies as an ``access 
device'' under Regulation E or is only a paper-based debit card. If a 
card serves both as an ordinary credit card and also as check guarantee 
or debit card, a transaction will be subject to this rule on asserting 
claims and defenses when used as an ordinary credit card, but not when 
used as a check guarantee or debit card.

    12(c)(2)  Adverse credit reports prohibited.
    1. Scope of prohibition. Although an amount in dispute may not be 
reported as delinquent until the matter is resolved:
    i. That amount may be reported as disputed.
    ii. Nothing in this provision prohibits the card issuer from 
undertaking its normal collection activities for the delinquent and 
undisputed portion of the account.
    2. Settlement of dispute. A card issuer may not consider a dispute 
settled and report an amount disputed as delinquent or begin collection 
of the disputed amount until it has completed a reasonable investigation 
of the cardholder's claim. A reasonable investigation requires an 
independent assessment of the cardholder's claim based on information 
obtained from both the cardholder and the merchant, if possible. In 
conducting an investigation, the card issuer may request the 
cardholder's reasonable cooperation. The card issuer may not 
automatically consider a dispute settled if the cardholder fails or 
refuses to comply with a particular request. However, if the card issuer 
otherwise has no means of obtaining information necessary to resolve the 
dispute, the lack of information resulting from the cardholder's failure 
or refusal to comply with a particular request may lead the card issuer 
reasonably to terminate the investigation.

    12(c)(3) Limitations.
    Paragraph 12(c)(3)(i).
    1. Resolution with merchant. The consumer must have tried to resolve 
the dispute with the merchant. This does not require any special 
procedures or correspondence between them, and is a matter for factual 
determination in each case. The consumer is not required to seek 
satisfaction from the manufacturer of the goods involved. When the 
merchant is in bankruptcy proceedings, the consumer is not required to 
file a claim in those proceedings.
    Paragraph 12(c)(3)(ii).
    1. Geographic limitation. The question of where as transaction 
occurs (as in the case of mail or telephone orders, for example) is to 
be determined under state or other applicable law.
    2. Merchant honoring card. The exceptions (stated in footnote 26) to 
the amount and geographic limitations do not apply if the merchant 
merely honors, or indicates through signs or advertising that it honors, 
a particular credit card.
    12(d) Offsets by card issuer prohibited.
    Paragraph 12(d)(1).
    1. Holds on accounts. ``Freezing'' or placing a hold on funds in the 
cardholder's deposit account is the functional equivalent of an offset 
and would contravene the prohibition in Sec. 226.12(d)(1), unless done 
in the context of one of the exceptions specified in Sec. 226.12(d)(2). 
For example, if the terms of a security agreement permitted the card 
issuer to place a hold on the funds, the hold would not violate the 
offset prohibition. Similarly, if an order of a bankruptcy court 
required the card issuer to turn over deposit account funds to the 
trustee in bankruptcy, the issuer would not violate the regulation by 
placing a hold on the funds in order to comply with the court order.
    2. Funds intended as deposits. If the consumer tenders funds as a 
deposit (to a checking account, for example), the card issuer may not 
apply the funds to repay indebtedness on the consumer's credit card 
account.
    3. Types of indebtedness; overdraft accounts. The offset prohibition 
applies to any indebtedness arising from transactions under a credit 
card plan, including accrued finance charges and other charges on the 
account.

[[Page 353]]

The prohibition also applies to balances arising from transactions not 
using the credit card itself but taking place under plans that involve 
credit cards. For example, if the consumer writes a check that accesses 
an overdraft line of credit, the resulting indebtedness is subject to 
the offset prohibition since it is incurred through a credit card plan, 
even though the consumer did not use an associated check guarantee or 
debit card.
    4. When prohibition applies in case of termination of account. The 
offset prohibition applies even after the card issuer terminates the 
cardholder's credit card privileges, if the indebtedness was incurred 
prior to termination. If the indebtedness was incurred after 
termination, the prohibition does not apply.
    Paragraph 12(d)(2).
    1. Security interest--limitations. In order to qualify for the 
exception stated in Sec. 226.12(d)(2), a security interest must be 
affirmatively agreed to by the consumer and must be disclosed in the 
issuer's initial disclosures under Sec. 226.6. The security interest 
must not be the functional equivalent of a right of offset; as a result, 
routinely including in agreements contract language indicating that 
consumers are giving a security interest in any deposit accounts 
maintained with the issuer does not result in a security interest that 
falls within the exception in Sec. 226.12(d)(2). For a security interest 
to qualify for the exception under Sec. 226.12(d)(2) the following 
conditions must be met:
     The consumer must be aware that granting a security 
interest is a condition for the credit card account (or for more 
favorable account terms) and must specifically intend to grant a 
security interest in a deposit account. Indicia of the consumer's 
awareness and intent could include, for example:

--Separate signature or initials on the agreement indicating that a 
security interest is being given
--Placement of the security agreement on a separate page, or otherwise 
separating the security interest provisions from other contract and 
disclosure provisions
--Reference to a specific amount of deposited funds or to a specific 
deposit account number

     The security interest must be obtainable and enforceable by 
creditors generally. If other creditors could not obtain a security 
interest in the consumer's deposit accounts to the same extent as the 
card issuer, the security interest is prohibited by Sec. 226.12(d)(2).
    2. Security interest--after-acquired property. As used in 
Sec. 226.12(d), the term security interest does not exclude (as it does 
for other Regulation Z purposes) interests in after-acquired property. 
Thus, a consensual security interest in deposit-account funds, including 
funds deposited after the granting of the security interest, would 
constitute a permissible exception to the prohibition on offsets.
    3. Court order. If the card issuer obtains a judgment against the 
cardholder, and if State and other applicable law and the terms of the 
judgment do not so prohibit, the card issuer may offset the indebtedness 
against the cardholder's deposit account.
    Paragraph 12(d)(3).
    1. Automatic payment plans--scope of exception. With regard to 
automatic debit plans under Sec. 226.12(d)(3), the following rules 
apply:

      The cardholder's authorization must be in writing and 
signed or initialed by the cardholder.
      The authorizing language need not appear directly above or 
next to the cardholder's signature or initials, provided it appears on 
the same document and that it clearly spells out the terms of the 
automatic debit plan.
      If the cardholder has the option to accept or reject the 
automatic debit feature (such option may be required under section 913 
of the Electronic Fund Transfer Act), the fact that the option exists 
should be clearly indicated.

    2. Automatic payment plans--additional exceptions. The following 
practices are not prohibited by Sec. 226.12(d)(1):

     Automatically deducting charges for participation in a 
program of banking services (one aspect of which may be a credit card 
plan).
     Debiting the cardholder's deposit account on the 
cardholder's specific request rather than on an automatic periodic basis 
(for example, a cardholder might check a box on the credit card bill 
stub, requesting the issuer to debit the cardholder's account to pay 
that bill).

    12(e) Prompt notification of returns and crediting of refunds.
    Paragraph 12(e)(1).
    1. Normal channels. The term normal channels refers to any network 
or interchange system used for the processing of the original charge 
slips (or equivalent information concerning the transaction).
    Paragraph 12(e)(2).
    1. Crediting account. The card issuer need not actually post the 
refund to the consumer's account within 3 business days after receiving 
the credit statement, provided that it credits the account as of a date 
within that time period.

                               References

    Statute: Sections 103(1), 132, 133, 135, 162, 166, 167, 169, and 
170.
    Other sections: Section 226.13.
    Other regulations: Regulation E (12 CFR 205).
    Previous regulation: Section 226.13.

[[Page 354]]

    1981 changes: The issuance rules in Sec. 226.12(a) make clear that 
cards may be sent to the person making the request and also to any other 
person for whom a card is requested, except that no liability for 
unauthorized use may be imposed on persons who are only authorized 
users.
    The principal differences in Sec. 226.12(b) about conditions of 
liability are as follows: the requirement that the cardholder be given a 
postage-paid, preaddressed card or envelope for notification of loss or 
theft has been deleted (corresponding to an amendment to the act); the 
required disclosures of maximum liability and of means of notification 
have been simplified; and the required provision of a means of 
identification has been changed in that the issuer now may provide a 
means to identify either the cardholder or the authorized user. Finally, 
anyone may provide the notification to the card issuer, not just the 
cardholder.
    Section 226.12(d) on offsets clarifies that the offset prohibition 
does not apply to consensual security interests. The separate promptness 
standard which used to apply in addition to the 7-business-day and 3-
business-day standards has been deleted from Sec. 226.12(e) on prompt 
notification of returns. Section 226.12(f) now clarifies rules on 
clearing accounts.
    Section 226.12(g), dealing with the relationship of the regulation 
to Regulation E (Electronic Fund Transfers), has been added.

                Section 226.13--Billing Error Resolution

    1. General prohibitions. Footnote 27 prohibits a creditor from 
responding to a consumer's billing error allegation by accelerating the 
debt or closing the account, and reflects protections authorized by 
section 161(d) of the Truth in Lending Act and section 701 of the Equal 
Credit Opportunity Act. The footnote also alerts creditors that failure 
to comply with the error resolution procedures may result in the 
forfeiture of disputed amounts as prescribed in section 161(e) of the 
Act. (Any failure to comply may also be a violation subject to the 
liability provisions of section 130 of the Act.)
    2. Charges for error resolution. If a billing error occurred, 
whether as alleged or in a different amount or manner, the creditor may 
not impose a charge related to any aspect of the error resolution 
process (including charges for documentation or investigation) and must 
credit the consumer's account if such a charge was assessed pending 
resolution. Since the Act grants the consumer error resolution rights, 
the creditor should avoid any chilling effect on the good faith 
assertion of errors that might result if charges are assessed when no 
billing error has occurred.
    13(a) Definition of billing error.
    1. Actual, implied, or apparent authority. Whether use of a credit 
card or open-end credit plan is authorized is determined by state or 
other applicable law.
    Paragraph 13(a)(3).
    1. Coverage. Section 226.13(a)(3) covers disputes about goods or 
services that are ``not accepted'' or ``not delivered . . . as agreed''; 
for example:

     The appearance on a periodic statement of a purchase, when 
the consumer refused to take delivery of goods because they did not 
comply with the contract.
     Delivery of property or services different from that agreed 
upon.
     Delivery of the wrong quantity.
     Late delivery.
     Delivery to the wrong location.

    Section 226.13(a)(3) does not apply to a dispute relating to the 
quality of property or services that the consumer accepts. Whether 
acceptance occurred is determined by state or other applicable law.
    Paragraph 13(a)(5).
    1. Computational errors. In periodic statements that are combined 
with other information, the error resolution procedures are triggered 
only if the consumer asserts a computational billing error in the 
credit-related portion of the periodic statement. For example:

     If a bank combines a periodic statement reflecting the 
consumer's credit card transactions with the consumer's monthly checking 
statement, a computational error in the checking account portion of the 
combined statement is not a billing error.

    Paragraph 13(a)(6).
    1. Documentation requests. A request for documentation such as 
receipts or sales slips, unaccompanied by an allegation of an error 
under Sec. 226.13(a) or a request for additional clarification under 
Sec. 226.13(a)(6), does not trigger the error resolution procedures. For 
example, a request for documentation merely for purposes such as tax 
preparation or recordkeeping does not trigger the error resolution 
procedures.
    13(b) Billing error notice.
    1. Withdrawal. The consumer's withdrawal of a billing error notice 
may be oral or written.
    Paragraph 13(b)(1).
    1. Failure to send periodic statement--timing. If the creditor has 
failed to send a periodic statement, the 60-day period runs from the 
time the statement should have been sent. Once the statement is 
provided, the consumer has another 60 days to assert any billing errors 
reflected on it.
    2. Failure to reflect credit--timing. If the periodic statement 
fails to reflect a credit to the account, the 60-day period runs from 
transmittal of the statement on which the credit should have appeared.

[[Page 355]]

    3. Transmittal. If a consumer has arranged for periodic statements 
to be held at the financial institution until called for, the statement 
is ``transmitted'' when it is first made available to the consumer.
    Paragraph 13(b)(2).
    1. Identity of the consumer. The billing error notice need not 
specify both the name and the account number if the information supplied 
enables the creditor to identify the consumer's name and account.
    13(c) Time for resolution; general procedures.
    1. Temporary or provisional corrections. A creditor may temporarily 
correct the consumer's account in response to a billing error notice, 
but is not excused from complying with the remaining error resolution 
procedures within the time limits for resolution.
    2. Correction without investigation. A creditor may correct a 
billing error in the manner and amount asserted by the consumer without 
the investigation or the determination normally required. The creditor 
must comply, however, with all other applicable provisions. If a 
creditor follows this procedure, no presumption is created that a 
billing error occurred.
    Paragraph 13(c)(2).
    1. Time for resolution. The phrase two complete billing cycles means 
2 actual billing cycles occurring after receipt of the billing error 
notice, not a measure of time equal to 2 billing cycles. For example, if 
a creditor on a monthly billing cycle receives a billing error notice 
mid-cycle, it has the remainder of that cycle plus the next 2 full 
billing cycles to resolve the error.
    13(d) Rules pending resolution.
    1. Disputed amount. Disputed amount is the dollar amount alleged by 
the consumer to be in error. When the allegation concerns the 
description or identification of the transaction (such as the date or 
the seller's name) rather than a dollar amount, the disputed amount is 
the amount of the transaction or charge that corresponds to the disputed 
transaction identification. If the consumer alleges a failure to send a 
periodic statement under Sec. 226.13(a)(7),the disputed amount is the 
entire balance owing.
    13(d)(1) Consumer's right to withhold disputed amount; collection 
action prohibited.
    1. Prohibited collection actions. During the error resolution 
period, the creditor is prohibited from trying to collect the disputed 
amount from the consumer. Prohibited collection actions include, for 
example, instituting court action, taking a lien, or instituting 
attachment proceedings.
    2. Right to withhold payment. If the creditor reflects any disputed 
amount or related finance or other charges on the periodic statement, 
and is therefore required to make the disclosure under footnote 30, the 
creditor may comply with that disclosure requirement by indicating that 
payment of any disputed amount is not required pending resolution. 
Making a disclosure that only refers to the disputed amount would, of 
course, in no way affect the consumer's right under Sec. 226.13(d)(1) to 
withhold related finance and other charges. The disclosure under 
footnote 30 need not appear in any specific place on the periodic 
statement, need not state the specific amount that the consumer may 
withhold, and may be preprinted on the periodic statement.
    3. Imposition of additional charges on undisputed amounts. The 
consumer's withholding of a disputed amount from the total bill cannot 
subject undisputed balances (including new purchases or cash advances 
made during the present or subsequent cycles) to the imposition of 
finance or other charges. For example, if on an account with a free-ride 
period (that is, an account in which paying the new balance in full 
allows the consumer to avoid the imposition of additional finance 
charges), a consumer disputes a $2 item out of a total bill of $300 and 
pays $298 within the free-ride period, the consumer would not lose the 
free-ride as to any undisputed amounts, even if the creditor determines 
later that no billing error occurred. Furthermore, finance or other 
charges may not be imposed on any new purchases or advances that, absent 
the unpaid disputed balance, would not have finance or other charges 
imposed on them. Finance or other charges that would have been incurred 
even if the consumer had paid the disputed amount would not be affected.
    4. Automatic payment plans--coverage. The coverage of this provision 
is limited to the card issuer's intra-institutional payment plans. It 
does not apply to:

     Inter-institutional payment plans that permit a cardholder 
to pay automatically any credit card indebtedness from an asset account 
not held by the card issuer receiving payment.
     Intra-institutional automatic payment plans offered by 
financial institutions that are not credit card issuers.

    5. Automatic payment plans--time of notice. While the card issuer 
does not have to restore or prevent the debiting of a disputed amount if 
the billing error notice arrives after the 3-business-day cut-off, the 
card issuer must, however, prevent the automatic debit of any part of 
the disputed amount that is still outstanding and unresolved at the time 
of the next scheduled debit date.
    13(d)(2) Adverse credit reports prohibited.
    1. Report of dispute. Although the creditor must not issue an 
adverse credit report because the consumer fails to pay the disputed 
amount or any related charges, the creditor may report that the amount 
or the account is in dispute. Also, the creditor may report the account 
as delinquent if undisputed amounts remain unpaid.

[[Page 356]]

    2. Person. During the error resolution period, the creditor is 
prohibited from making an adverse credit report about the disputed 
amount to any person--including employers, insurance companies, other 
creditors, and credit bureaus.
    3. Creditor's agent. Whether an agency relationship exists between a 
creditor and an issuer of an adverse credit report is determined by 
State or other applicable law.
    13(e) Procedures if billing error occurred as asserted.
    1. Correction of error. The phrase as applicable means that the 
necessary corrections vary with the type of billing error that occurred. 
For example, a misidentified transaction (or a transaction that is 
identified by one of the alternative methods in Sec. 226.8) is cured by 
properly identifying the transaction and crediting related finance and 
any other charges imposed. The creditor is not required to cancel the 
amount of the underlying obligation incurred by the consumer.
    2. Form of correction notice. The written correction notice may take 
a variety of forms. It may be sent separately, or it may be included on 
or with a periodic statement that is mailed within the time for 
resolution. If the periodic statement is used, the amount of the billing 
error must be specifically identified.
    If a separate billing error correction notice is provided, the 
accompanying or subsequent periodic statement reflecting the corrected 
amount may simply identify it as credit.
    13(f) Procedures if different billing error or no billing error 
occurred.
    1. Different billing error. Examples of a different billing error 
include:

     Differences in the amount of an error (for example, the 
customer asserts a $55.00 error but the error was only $53.00).
     Differences in other particulars asserted by the consumer 
(such as when a consumer asserts that a particular transaction never 
occurred, but the creditor determines that only the seller's name was 
disclosed incorrectly).

    2. Form of creditor's explanation. The written explanation (which 
also may notify the consumer of corrections to the account) may take a 
variety of forms. It may be sent separately, or it may be included on or 
with a periodic statement that is mailed within the time for resolution. 
If the creditor uses the periodic statement for the explanation and 
correction(s), the corrections must be specifically identified. If a 
separate explanation, including the correction notice, is provided, the 
enclosed or subsequent periodic statement reflecting the corrected 
amount may simply identify it as a credit. The explanation may be 
combined with the creditor's notice to the consumer of amounts still 
owing, which is required under Sec. 226.13(g)(1), provided it is sent 
within the time limit for resolution. (See Commentary to 
Sec. 226.13(e).)
    13(g) Creditor's rights and duties after resolution.
    Paragraph 13(g)(1).
    1. Amounts owed by consumer. Amounts the consumer still owes may 
include both minimum periodic payments and related finance and other 
charges that accrued during the resolution period. As explained in the 
commentary to Sec. 226.13(d)(1), even if the creditor later determines 
that no billing error occurred, the creditor may not include finance or 
other charges that are imposed on undisputed balances solely as a result 
of a consumer's withholding payment of a disputed amount.
    2. Time of notice. The creditor need not send the notice of amount 
owed within the time period for resolution, although it is under a duty 
to send the notice promptly after resolution of the alleged error. If 
the creditor combines the notice of the amount owed with the explanation 
required under Sec. 226.13(f)(1), the combined notice must be provided 
within the time limit for resolution.
    Paragraph 13(g)(2).
    1. The creditor need not allow any free-ride period disclosed under 
Secs. 226.6(a)(1) and 226.7(j) to pay the amount due under 
Sec. 226.13(g)(1) if no error occurred and the consumer was not entitled 
to a free-ride period at the time the consumer asserted the error.
    Paragraph 13(g)(3).
    1. Time for payment. The consumer has a minimum of 10 days to pay 
(measured from the time the consumer could reasonably be expected to 
have received notice of the amount owed) before the creditor may issue 
an adverse credit report; if an initially disclosed free-ride period 
allows the consumer a longer time in which to pay, the consumer has the 
benefit of that longer period.
    Paragraph 13(g)(4).
    1. Credit reporting. Under Sec. 226.13(g)(4)(i) and (iii) the 
creditor's additional credit reporting responsibilities must be 
accomplished promptly. The creditor need not establish costly procedures 
to fulfill this requirement. For example, a creditor that reports to a 
credit bureau on scheduled updates need not transmit corrective 
information by an unscheduled computer or magnetic tape; it may provide 
the credit bureau with the correct information by letter or other 
commercially reasonable means when using the scheduled update would not 
be ``prompt.'' The creditor is not responsible for ensuring that the 
credit bureau corrects its information immediately.
    2. Adverse report to credit bureau. If a creditor made an adverse 
report to a credit bureau that disseminated the information to other 
creditors, the creditor fulfills its Sec. 226.13(g)(4)(ii) obligations 
by providing the

[[Page 357]]

consumer with the name and address of the credit bureau.
    13(i) Relation to Electronic Fund Transfer Act and Regulation E.
    1. Coverage. Credit extended directly from a non-overdraft credit 
line is governed solely by Regulation Z, even though a combined credit 
card/access device is used to obtain the extension.
    2. Incidental credit under agreement. Credit extended incident to an 
electronic fund transfer under an agreement between the consumer and the 
financial institution is governed by Sec. 226.13(i), which provides that 
certain error resolution procedures in both this regulation and 
Regulation E apply. Incidental credit that is not extended under an 
agreement between the consumer and the financial institution is governed 
solely by the error resolution procedures in Regulation E. For example:

     Credit inadvertently extended incident to an electronic 
fund transfer is governed solely by the Regulation E error resolution 
procedures, if the bank and the consumer do not have an agreement to 
extend credit when the consumer's account is overdrawn.

    3. Application to debit/credit transactions--examples. If a consumer 
withdraws money at an automated teller machine and activates an 
overdraft credit feature on the checking account:

     An error asserted with respect to the transaction is 
subject, for error resolution purposes, to the applicable Regulation E 
provisions (such as timing and notice) for the entire transaction.
     The creditor need not provisionally credit the consumer's 
account, under Sec. 205.11(c)(2)(i) of Regulation E, for any portion of 
the unpaid extension of credit.
     The creditor must credit the consumer's account under 
Sec. 205.11(e) with any finance or other charges incurred as a result of 
the alleged error.
     The provisions of Sec. 226.13 (d) and (g) apply only to the 
credit portion of the transaction.

                               References

    Statute: Sections 161 and 162.
    Other sections: Sections 226.6 through 226.8.
    Other regulations: Regulation E (12 CFR 205).
    Previous regulation: Sections 226.2(j) and (cc), and 226.14.
    1981 changes: Section 226.13 reflects several substantive changes 
from the previous regulation and a complete restructuring of the error 
resolution provisions. The new organization, for example, arranges the 
creditor's responsibilities in chronological sequence.
    Section 226.13(a)(7) implements amended Sec. 161(b) of the act, and 
provides that the creditor's failure to send a periodic statement to the 
consumer's current address is a billing error, unless the creditor 
received written notice of the address change fewer than 20 days 
(instead of 10 days) before the end of the billing cycle.
    Several provisions regarding the creditor's duties after a billing 
error is alleged have been revised. The previous regulation immunized a 
creditor from liability for inadvertently taking collection action or 
making an adverse credit report within 2 days after receiving a billing 
error notice; these provisions are deleted from the revised regulation. 
The revised regulation no longer requires placement ``on the face'' of 
the periodic statment of the disclosure about payment of disputed 
amounts.
    The revised regulation changes the rule in the previous regulation 
that a card issuer must prevent or restore an automatic debit of a 
disputed amount if it receives a billing error notice within 16 days 
after transmitting the periodic statement that reflects the alleged 
error. Under the revised regulation, the card issuer must prevent an 
automatic debit if it receives a billing error notice up to 3 days 
before the scheduled payment date (provided that the notice is received 
within the 60 days for the consumer to assert the error).

         Section 226.14--Determination of Annual Percentage Rate

    14(a) General rule.
    1. Tolerance. The tolerance of \1/8\ of 1 percentage point above or 
below the annual percentage rate applies to any required disclosure of 
the annual percentage rate. The disclosure of the annual percentage rate 
is required in Secs. 226.6, 226.7, 226.9, 226.15, 226.16, and 226.26.
    2. Rounding. The regulation does not require that the annual 
percentage rate be calculated to any particular number of decimal 
places; rounding is permissible within the \1/8\ of 1 percent tolerance. 
For example, an exact annual percentage rate of 14.33333% may be stated 
as 14.33% or as 14.3%, or even as 14\1/4\%; but it could not be stated 
as 14.2% or 14%, since each varies by more than the permitted tolerance.
    3. Periodic rates. No explicit tolerance exists for any periodic 
rate as such; a disclosed periodic rate may vary from precise accuracy 
(for example, due to rounding) only to the extent that its annualized 
equivalent is within the tolerance permitted by Sec. 226.14(a). Further, 
a periodic rate need not be calculated to any particular number of 
decimal places.
    4. Finance charges. The regulation does not prohibit creditors from 
assessing finance charges on balances that include prior, unpaid finance 
charges; state or other applicable law may do so, however.
    5. Good faith reliance on faulty calculation tools. Footnote 31a 
absolves a creditor of liability for an error in the annual percentage 
rate or finance charge that resulted from a

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corresponding error in a calculation tool used in good faith by the 
creditor. Whether or not the creditor's use of the tool was in good 
faith must be determined on a case-by-case basis, but the creditor must 
in any case have taken reasonable steps to verify the accuracy of the 
tool, including any instructions, before using it. Generally, the 
footnote is available only for errors directly attributable to the 
calculation tool itself, including software programs; it is not intended 
to absolve a creditor of liability for its own errors, or for errors 
arising from improper use of the tool, from incorrect data entry, or 
from misapplication of the law.

 14(b)  Annual Percentage Rate for Secs. 226.5a and 226.5b Disclosures, 
          for Initial Disclosures and for Advertising Purposes

    1. Corresponding annual percentage rate computation. For purposes of 
Secs. 226.5a, 226.5b, 226.6 and 226.16, the annual percentage rate is 
determined by multiplying the periodic rate by the number of periods in 
the year. This computation reflects the fact that, in such disclosures, 
the rate (known as the corresponding annual percentage rate) is 
prospective and does not involve any particular finance charge or 
periodic balance. This computation also is used to determine any annual 
percentage rate for oral disclosures under Sec. 226.26(a).
    14(c) Annual percentage rate for periodic statements.
    1. General rule. Section 226.14(c) requires disclosure of the 
corresponding annual percentage rate for each periodic rate (under 
Sec. 226.7(d)). It is figured by multiplying each periodic rate by the 
number of periods per year. This disclosure is like that provided on the 
initial disclosure statement. The periodic statement also must reflect 
(under Sec. 226.7(g)) the annualized equivalent of the rate actually 
applied during a particular cycle (the historical rate); this rate may 
differ from the corresponding annual percentage rate because of the 
inclusion of fixed, minimum, or transaction charges. Sections 226.14 
(c)(1) through (c)(4) state the computation rules for the historical 
rate.
    2. Periodic rates. Section 226.14(c)(1) applies if the only finance 
charge imposed is due to the application of a periodic rate to a 
balance. The creditor may compute the annual percentage rate either:

     By multiplying each periodic rate by the number of periods 
in the year; or
     By the ``quotient'' method. This method refers to a 
composite annual percentage rate when different periodic rates apply to 
different balances. For example, a particular plan may involve a 
periodic rate of 1\1/2\% on balances up to $500, and 1% on balances over 
$500. If, in a given cycle, the consumer has a balance of $800, the 
finance charge would consist of $7.50 (500 x .015) plus $3.00 
(300 x .01), for a total finance charge of $10.50. The annual percentage 
rate for this period may be disclosed either as 18% on $500 and 12% on 
$300, or as 15.75% on a balance of $800 (the quotient of $10.50 divided 
by $800, multiplied by 12).

    3. Charges not based on periodic rates. Section 226.14(c)(2) applies 
if the finance charge imposed includes a charge not due to the 
application of a periodic rate (other than a charge relating to a 
specific transaction). For example, if the creditor imposes a minimum $1 
finance charge on all balances below $50, and the consumer's balance was 
$40 in a particular cycle, the creditor would disclose an annual 
percentage rate of 30% (1/40 x 12).
    4. No balance. Footnote 32 to Sec. 226.14(c)(2) would apply not only 
when minimum charges are imposed on an account with no balance, but also 
to a plan in which a periodic rate is applied to advances from the date 
of the transaction. For example, if on May 19 the consumer pays the new 
balance in full from a statement dated May 1, and has no further 
transactions reflected on the June 1 statement, that statement would 
reflect a finance charge with no account balance.
    5. Transaction charges. Section 226.14(c)(3) transaction charges 
include, for example:

     A loan fee of $10 imposed on a particular advance.
     A charge of 3% of the amount of each transaction.

    The reference to avoiding duplication in the computation requires 
that the amounts of transactions on which transaction charges were 
imposed not be included both in the amount of total balances and in the 
``other amounts on which a finance charge was imposed'' figure. For 
further explanation and examples of how to determine the components of 
this formula, see appendix F.
    6. Daily rate with specific transaction charge. Section 226.14(c)(3) 
sets forth an acceptable method for calculating the annual percentage 
rate if the finance charge results from a charge relating to a specific 
transaction and the application of a daily periodic rate. This section 
includes the requirement that the creditor follow the rules in appendix 
F in calculating the annual percentage rate, especially footnote 1 to 
appendix F which addresses the daily rate/transaction charge situation 
by providing that the ``average of daily balances'' shall be used 
instead of the ``sum of the balances.''
    7. Charges related to opening, renewing, or continuing an account. 
Footnote 33 is applicable to Sec. 226.14 (c)(2) and (c)(3). The charges 
involved here do not relate to a specific transaction or to specific 
activity on the account, but relate solely to the opening, renewing, or 
continuing of the account. For example, an annual fee to renew an open-
end credit account that is a percentage of the credit limit

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on the account, or that is charged only to consumers that have not used 
their credit card for a certain dollar amount in transactions during the 
preceding year, would not be included in the calculation of the annual 
percentage rate, even though the fee may not be excluded from the 
finance charge under Sec. 226.4(c)(4). (See comment 4(c)(4)-2.) 
Inclusion of these charges in the annual percentage rate calculation 
results in significant distortions of the annual percentage rate and 
delivery of a possibly misleading disclosure to consumers. The rule in 
footnote 33 applies even if the loan fee, points, or similar charges are 
billed on a subsequent periodic statement or withheld from the proceeds 
of the first advance on the account.
    8. Classification of charges. If the finance charge includes a 
charge not due to the application of a periodic rate, the creditor must 
determine the proper annual percentage rate computation method according 
to the type of charge imposed. If the charge is tied to a specific 
transaction (for example, 3% of the amount of each transaction), then 
the method in Sec. 226.14(c)(3) must be used. If a fixed or minimum 
charge is applied, that is, one not tied to any specific transaction, 
then the formula in Sec. 226.14(c)(2) is appropriate.
    9. Small finance charges. Section 226.14(c)(4) gives the creditor an 
alternative to Sec. 226.14(c)(2) and (c)(3) if small finance charges (50 
cents or less) are involved; that is, if the finance charge includes 
minimum or fixed fees not due to the application of a periodic rate and 
the total finance charge for the cycle does not exceed 50 cents. For 
example, while a monthly activity fee of 50 cents on a balance of $20 
would produce an annual percentage rate of 30 percent under the rule in 
Sec. 226.14(c)(2), the creditor may disclose an annual percentage rate 
of 18 percent if the periodic rate generally applicable to all balances 
is 1\1/2\ percent per month. This option is consistent with the 
provision in footnote 11 to Secs. 226.6 and 226.7 permitting the 
creditor to disregard the effect of minimum charges in disclosing the 
ranges of balances to which periodic rates apply.
    10. Transactions at end of billing cycle. The annual percentage rate 
reflects transactions and charges imposed during the billing cycle. 
However, it may be impracticable to post a transaction that occurs at 
the end of a billing cycle until the following cycle, such as a cash 
advance that occurs on the last day of a billing cycle and is posted to 
the account in the following cycle. A card issuer that uses the date of 
the transaction to figure finance charges should calculate the annual 
percentage rate as follows for the billing cycle in which the 
transaction and charges are posted:
    i. The denominator is calculated as if the transaction occurred on 
the first day of the billing cycle; and
    ii. The numerator includes the amount of the transaction charge plus 
all finance charges derived from the application of the periodic rate to 
the amount of the transaction (including all charges from a prior 
cycle).
    14(d) Calculations where daily periodic rate applied.
    1. Quotient Method. Section 226.14(d) addresses use of a daily 
periodic rate(s) to determine some or all of the finance charge and use 
of the quotient method to determine the annual percentage rate. Since 
the quotient formula in Sec. 226.14(c)(1)(ii) does not work when a daily 
rate is being applied to a series of daily balances, Sec. 226.14(d) 
gives the creditor 2 alternative ways to figure the annual percentage 
rate--either of which satisfies the requirement in Sec. 226.7(g).
    2. Daily rate with specific transaction charge. If the finance 
charge results from a charge relating to a specific transaction and the 
application of a daily periodic rate, see comment 14(c)-6 for guidance 
on an appropriate calculation method.

                               References

    Statute: Section 107.
    Other sections: Sections 226.6, 226.7, 226.9, 226.15, 226.16, and 
226.26.
    Previous regulation: Section 226.5(a) and Interpretation 
Secs. 226.501 and 226.506.
    1981 changes: Section 226.14 reflects the statutory amendment 
permitting a \1/8\ of 1 percent tolerance for annual percentage rates. 
The revised regulation no longer reflects the provision dealing with 
finance charges imposed on specified ranges or brackets of balances. The 
revised regulation includes a footnote providing that loan fees, points, 
or similar charges unrelated to any specific transaction are not figured 
into the annual percentage rate computation.

                   Section 226.15--Right of Rescission

    1. Transactions not covered. Credit extensions that are not subject 
to the regulation are not covered by Sec. 226.15 even if the customer's 
principal dwelling is the collateral securing the credit. For this 
purpose, credit extensions also would include the occurrences listed in 
Comment 15(a)(1)-1. For example, the right of rescission does not apply 
to the opening of a business-purpose credit line, even though the loan 
is secured by the customer's principal dwelling.
    15(a) Consumer's right to rescind.
    Paragraph 15(a)(1).
    1. Occurrences subject to right. Under an open-end credit plan 
secured by the consumer's principal dwelling, the right of rescission 
generally arises with each of the following occurrences:

     Opening the account.
     Each credit extension.
     Increasing the credit limit.

[[Page 360]]

     Adding to an existing account a security interest in the 
consumer's principal dwelling.
     Increasing the dollar amount of the security interest taken 
in the dwelling to secure the plan. For example, a consumer may open an 
account with a $10,000 credit limit, $5,000 of which is initially 
secured by the consumer's principal dwelling. The consumer has the right 
to rescind at that time and (except as noted in Sec. 226.15(a)(1)(ii)) 
with each extension on the account. Later, if the creditor decides that 
it wants the credit line fully secured, and increases the amount of its 
interest in the consumer's dwelling, the consumer has the right to 
rescind the increase.

    2. Exceptions. Although the consumer generally has the right to 
rescind with each transaction on the account, section 125(e) of the Act 
provides an exception: the creditor need not provide the right to 
rescind at the time of each credit extension made under an open-end 
credit plan secured by the consumer's principal dwelling to the extent 
that the credit extended is in accordance with a previously established 
credit limit for the plan. This limited rescission option is available 
whether or not the plan existed prior to the effective date of the Act.
    3. Security interest arising from transaction. In order for the 
right of rescission to apply, the security interest must be retained as 
part of the credit transaction. For example:

     A security interest that is acquired by a contractor who is 
also extending the credit in the transaction.
     A mechanic's or materialman's lien that is retained by a 
subcontractor or supplier of a contractor-creditor, even when the latter 
has waived its own security interest in the consumer's home.

    The security interest is not part of the credit transaction, and 
therefore the transaction is not subject to the right of rescission 
when, for example:

     A mechanic's or materialman's lien is obtained by a 
contractor who is not a party to the credit transaction but merely is 
paid with the proceeds of the consumer's cash advance.
     All security interests that may arise in connection with 
the credit transaction are validly waived.
     The creditor obtains a lien and completion bond that in 
effect satisfies all liens against the consumer's principal dwelling as 
a result of the credit transaction.

    Although liens arising by operation of law are not considered 
security interests for purposes of disclosure under Sec. 226.2, that 
section specifically includes them in the definition for purposes of the 
right of rescission. Thus, even though an interest in the consumer's 
principal dwelling is not a required disclosure under Sec. 226.6(c), it 
may still give rise to the right of rescission.
    4. Consumer. To be a consumer within the meaning of Sec. 226.2, that 
person must at least have an ownership interest in the dwelling that is 
encumbered by the creditor's security interest, although that person 
need not be a signatory to the credit agreement. For example, if only 
one spouse enters into a secured plan, the other spouse is a consumer if 
the ownership interest of that spouse is subject to the security 
interest.
    5. Principal dwelling. A consumer can only have one principal 
dwelling at a time. (But see comment 15(a)(1)-6.) A vacation or other 
second home would not be a principal dwelling. A transaction secured by 
a second home (such as a vacation home) that is not currently being used 
as the consumer's principal dwelling is not rescindable, even if the 
consumer intends to reside there in the future. When a consumer buys or 
builds a new dwelling that will become the consumer's principal dwelling 
within one year or upon completion of construction, the new dwelling is 
considered the principal dwelling if it secures the open-end credit 
line. In that case, the transaction secured by the new dwelling is a 
residential mortgage transaction and is not rescindable. For example, if 
a consumer whose principal dwelling is currently A builds B, to be 
occupied by the consumer upon completion of construction, an advance on 
an open-end line to finance B and secured by B is a residential mortgage 
transaction. Dwelling, as defined in Sec. 226.2, includes structures 
that are classified as personalty under state law. For example, a 
transaction secured by a mobile home, trailer, or houseboat used as the 
consumer's principal dwelling may be rescindable.
    6. Special rule for principal dwelling. Notwithstanding the general 
rule that consumers may have only one principal dwelling, when the 
consumer is acquiring or constructing a new principal dwelling, a credit 
plan or extension that is subject to Regulation Z and is secured by the 
equity in the consumer's current principal dwelling is subject to the 
right of rescission regardless of the purpose of that loan (for example, 
an advance to be used as a bridge loan). For example, if a consumer 
whose principal dwelling is currently A builds B, to be occupied by the 
consumer upon completion of construction, a loan to finance B and 
secured by A is subject to the right of rescission. Moreover, a loan 
secured by both A and B is, likewise, rescindable.
    Paragraph 15(a)(2).
    1. Consumer's exercise of right. The consumer must exercise the 
right of rescission in writing, but not necessarily on the notice 
supplied under Sec. 226.15(b). Whatever the means of sending the 
notification of rescission--mail, telegram, or other written means--the 
time period for the creditor's

[[Page 361]]

performance under Sec. 226.15(d)(2) does not begin to run until the 
notification has been received. The creditor may designate an agent to 
receive the notification so long as the agent's name and address appear 
on the notice provided to the consumer under Sec. 226.15(b).
    Paragraph 15 (a)(3).
    1. Rescission period.  the period within which the consumer may 
exercise the right to rescind runs for 3 business days from the last of 
3 events:

     The occurrence that gives rise to the right of rescission.
     Delivery of all material disclosures that are relevant to 
the plan.
     Delivery to the consumer of the required rescission notice.

    For example, an account is opened on Friday, June 1, and the 
disclosures and notice of the right to rescind were given on Thursday, 
May 31; the rescission period will expire at midnight of the third 
business day after June 1--that is, Tuesday June 5. In another example, 
if the disclosures are given and the account is opened on Friday, June 
1, and the rescission notice is given on Monday, June 4, the rescission 
period expires at midnight of the third business day after June 4--that 
is Thursday, June 7. The consumer must place the rescission notice in 
the mail, file it for telegraphic transmission, or deliver it to the 
creditor's place of business within that period in order to exercise the 
right.
    2. Material disclosures. Footnote 36 sets forth the material 
disclosures that must be provided before the rescission period can begin 
to run. The creditor must provide sufficient information to satisfy the 
requirements of Sec. 226.6 for these disclosures. A creditor may satisfy 
this requirement by giving an initial disclosure statement that complies 
with the regulation. Failure to give the other required initial 
disclosures (such as the billing rights statement) or the information 
required under section 226.5b. does not prevent the running of the 
rescission period, although that failure may result in civil liability 
or administrative sanctions. The payment terms set forth in footnote 36 
apply to any repayment phase set forth in the agreement. Thus, the 
payment terms described in Sec. 226.6(e)(2) for any repayment phase as 
well as for the draw period are ``material disclosures.''
    3. Material disclosures--variable rate program. For a variable rate 
program, the material disclosures also include the disclosures listed in 
footnote 12 to Sec. 226.6(a)(2): the circumstances under which the rate 
may increase; the limitations on the increase; and the effect of an 
increase. The disclosures listed in footnote 12 to section 226.6(a)(2) 
for any repayment phase also are material disclosures for variable-rate 
programs.
    4. Unexpired right of rescission. When the creditor has failed to 
take the action necessary to start the three-day rescission period 
running the right to rescind automatically lapses on the occurrence of 
the earliest of the following three events:

     The expiration of three years after the occurrence giving 
rise to the right of rescission.
     Transfer of all the consumer's interest in the property.
     Sale of the consumer's interest in the property, including 
a transaction in which the consumer sells the dwelling and takes back a 
purchase money note and mortgage or retains legal title through a device 
such as an installment sale contract.

    Transfer of all the consumer's interest includes such transfers as 
bequests and gifts. A sale or transfer of the property need not be 
voluntary to terminate the right to rescind. For example, a foreclosure 
sale would terminate an unexpired right to rescind. As provided in 
section 125 of the act, the three-year limit may be extended by an 
administrative proceeding to enforce the provisions of Sec. 226.15. A 
partial transfer of the consumer's interest, such as a transfer 
bestowing co-ownership on a spouse, does not terminate the right of 
rescission.
    Paragraph 15(a)(4).
    1. Joint owners. When more than one consumer has the right to 
rescind a transaction, any one of them may exercise that right and 
cancel the transaction on behalf of all. For example, if both a husband 
and wife have the right to rescind a transaction, either spouse acting 
alone may exercise the right and both are bound by the rescission.
    15(b) Notice of right to rescind.
    1. Who receives notice. Each consumer entitled to rescind must be 
given:

     Two copies of the rescission notice.
     The material disclosures.

    In a transaction involving joint owners, both of the whom are 
entitled to rescind, both must receive the notice of the right to 
rescind and disclosures. For example, if both spouses are entitled to 
rescind a transaction, each must receive 2 copies of the rescission 
notice and one copy of the disclosures.
    2. Format. The rescission notice may be physically separated from 
the material disclosures or combined with the material disclosures, so 
long as the information required to be included on the notice is set 
forth in a clear and conspicuous manner. See the model notices in 
appendix G.
    3. Content. The notice must include all of the information outlined 
in Sec. 226.15(b)(1) through (5). The requirement in Sec. 226.15(b) that 
the transaction or occurrence be identified may be met by providing the 
date of the transaction or occurrence. The notice may include additional 
information related to the required information, such as:


[[Page 362]]


     A description of the property subject to the security 
interest.
     A statement that joint owners may have the right to rescind 
and that a rescission by one is effective for all.
     The name and address of an agent of the creditor to receive 
notice of rescission.

    4. Time of providing notice. The notice required by Sec. 226.15(b) 
need not be given before the occurrence giving rise to the right of 
rescission. The creditor may deliver the notice after the occurrence, 
but the rescission period will not begin to run until the notice is 
given. For example, if the creditor provides the notice on May 15, but 
disclosures were given and the credit limit was raised on May 10, the 3-
business-day rescission period will run from May 15.
    15(c) Delay of creditor's performance.
    1. General rule. Until the rescission period has expired and the 
creditor is reasonably satisfied that the consumer has not rescinded, 
the creditor must not, either directly or through a third party:
     Disburse advances to the consumer.
     Begin performing services for the consumer.
     Deliver materials to the consumer.
    A creditor may, however, continue to allow transactions under an 
existing open-end credit plan during a rescission period that results 
solely from the addition of a security interest in the consumer's 
principal dwelling. (See comment 15(c)-3 for other actions that may be 
taken during the delay period.)

    2. Escrow. The creditor may disburse advances during the rescission 
period in a valid escrow arrangement. The creditor may not, however, 
appoint the consumer as ``trustee'' or ``escrow agent'' and distribute 
funds to the consumer in that capacity during the delay period.
    3. Actions during the delay period. Section 226.15(c) does not 
prevent the creditor from taking other steps during the delay, short of 
beginning actual performance. Unless otherwise prohibited, such as by 
state law, the creditor may, for example:
     Prepare the cash advance check.
     Perfect the security interest.
     Accrue finance charges during the delay period.

    4. Performance by third party. The creditor is relieved from 
liability for failure to delay performance if a third party with no 
knowledge that the rescission right has been activated provides 
materials or services, as long as any debt incurred for materials or 
services obtained by the consumer during the rescission period is not 
secured by the security interest in the consumer's dwelling. For 
example, if a consumer uses a bank credit card to purchase materials 
from a merchant in an amount below the floor limit, the merchant might 
not contact the card issuer for authorization and therefore would not 
know that materials should not be provided.
    5. Delay beyond rescission period. The creditor must wait until it 
is reasonably satisfied that the consumer has not rescinded. For 
example, the creditor may satisfy itself by doing one of the following:

     Waiting a reasonable time after expiration of the 
rescission period to allow for delivery of a mailed notice.
     Obtaining a written statement from the consumer that the 
right has not been exercised.

    When more than one consumer has the right to rescind, the creditor 
cannot reasonably rely on the assurance of only one consumer, because 
other consumers may exercise the right.
    15(d) Effects of rescission.
    Paragraph 15(d)(1).
    1. Termination of security interest. Any security interest giving 
rise to the right of rescission becomes void when the consumer exercises 
the right of rescission. The security interest is automatically negated, 
regardless of its status and whether or not it was recorded or 
perfected. Under Sec. 226.15(d)(2), however, the creditor must take any 
action necessary to reflect the fact that the security interest no 
longer exists.
    2. Extent of termination. The creditor's security interest is void 
to the extent that it is related to the occurrence giving rise to the 
right of rescission. For example, upon rescission:

     If the consumer's right to rescind is activated by the 
opening of a plan, any security interest in the principal dwelling is 
void.
     If the right arises due to an increase in the credit limit, 
the security interest is void as to the amount of credit extensions over 
the prior limit, but the security interest in amounts up to the original 
credit limit is unaffected.
     If the right arises with each individual credit extension, 
then the interest is void as to that extension, and other extensions are 
unaffected.

    Paragraph 15(d)(2).
    1. Refunds to consumer. The consumer cannot be required to pay any 
amount in the form of money or property either to the creditor or to a 
third party as part of the occurrence subject to the right of 
rescission. Any amounts of this nature already paid by the consumer must 
be refunded. ``Any amount'' includes finance charges already accrued, as 
well as other charges such as broker fees, application and commitment 
fees, or fees for a title search or appraisal, whether paid to the 
creditor, paid by the consumer directly to a third party, or passed on 
from the creditor to the third party. It is irrelevant that these 
amounts may not represent profit to the creditor. For example:


[[Page 363]]


     If the occurrence is the opening of the plan, the creditor 
must return any membership or application fee paid.
     If the occurrence is the increase in a credit limit or the 
addition of a security interest, the creditor must return any fee 
imposed for a new credit report or filing fees.
     If the occurrence is a credit extension, the creditors must 
return fees such as application, title, and appraisal or survey fees, as 
well as any finance charges related to the credit extension.

    2. Amounts not refundable to consumer. Creditors need not return any 
money given by the consumer to a third party outside of the occurrence, 
such as costs incurred for a building permit or for a zoning variance. 
Similarly, the term any amount does not apply to money or property given 
by the creditor to the consumer; those amounts must be tendered by the 
consumer to the creditor under Sec. 226.15(d)(3).
    3. Reflection of security interest termination. The creditor must 
take whatever steps are necessary to indicate that the security interest 
is terminated. Those steps include the cancellation of documents 
creating the security interest, and the filing of release or termination 
statements in the public record. In a transaction involving 
subcontractors or suppliers that also hold security interests related to 
the occurrence rescinded by the consumer, the creditor must insure that 
the termination of their security interests is also reflected. The 20-
day period for the creditor's action refers to the time within which the 
creditor must begin the process. It does not require all necessary steps 
to have been completed within that time, but the creditor is responsible 
for seeing the process through to completion.
    Paragraph 15(d)(3).
    1. Property exchange. Once the creditor has fulfilled its obligation 
under Sec. 226.15(d)(2), the consumer must tender to the creditor any 
property or money the creditor has already delivered to the consumer. At 
the consumer's option, property may be tendered at the location of the 
property. For example, if fixtures or furniture have been delivered to 
the consumer's home, the consumer may tender them to the creditor by 
making them available for pick-up at the home, rather than physically 
returning them to the creditor's premises. Money already given to the 
consumer must be tendered at the creditor's place of business. For 
purpose of property exchange, the following additional rules apply:

     A cash advance is considered money for purposes of this 
section even if the creditor knows what the consumer intends to purchase 
with the money.
     In a 3-party open-end credit plan (that is, if the creditor 
and seller are not the same or related persons), extensions by the 
creditor that are used by the consumer for purchases from third-party 
sellers are considered to be the same as cash advances for purposes of 
tendering value to the creditor, even though the transaction is a 
purchase for other purposes under the regulation. For example, if a 
consumer exercises the unexpired right to rescind after using a 3-party 
credit card for one year, the consumer would tender the amount of the 
purchase price for the items charged to the account, rather than 
tendering the items themselves to the creditor.

    2. Reasonable value. If returning the property would be extremely 
burdensome to the consumer, the consumer may offer the creditor its 
reasonable value rather than returning the property itself. For example, 
if building materials have already been incorporated into the consumer's 
dwelling, the consumer may pay their reasonable value.
    Paragraph 15(d)(4).
    1. Modifications. The procedures outlined in Sec. 226.15(d)(2) and 
(d)(3) may be modified by a court. For example, when a consumer is in 
bankruptcy proceedings and prohibited from returning anything to the 
creditor, or when the equities dictate, a modification might be made.
    15(e) Consumer's waiver of right to rescind.
    1. Need for waiver. To waive the right to rescind, the consumer must 
have a bona fide personal financial emergency that must be met before 
the end of the rescission period. The existence of the consumer's waiver 
will not, of itself, automatically insulate the creditor from liability 
for failing to provide the right of rescission.
    2. Procedure. To waive or modify the right to rescind, the consumer 
must give a written statement that specifically waives or modifies the 
right, and also includes a brief description of the emergency. Each 
consumer entitled to rescind must sign the waiver statement. In a 
transaction involving multiple consumers, such as a husband and wife 
using their home as collateral, the waiver must bear the signatures of 
both spouses.
    15(f) Exempt transactions.
    1. Residential mortgage transaction. Although residential mortgage 
transactions would seldom be made on bona fide open-end credit plans 
(under which repeated transactions must be reasonably contemplated), an 
advance on an open-end plan could be for a downpayment for the purchase 
of a dwelling that would then secure the remainder of the line. In such 
a case, only the particular advance for the downpayment would be exempt 
from the rescission right.
    2. State creditors. Cities and other political subdivisions of 
states acting as creditors are not exempt from Sec. 226.15.
    3. Spreader clause. When the creditor holds a mortgage or deed of 
trust on the consumer's principal dwelling and that mortgage or deed of 
trust contains a ``spreader clause'' (also known as a ``dragnet'' or 
cross- 

[[Page 364]]

collateralization clause), subsequent occurrences such as the opening of 
a plan or individual credit extensions are subject to the right of 
rescission to the same degree as if the security interest were taken 
directly to secure the open-end plan, unless the creditor effectively 
waives its security interest under the spreader clause with respect to 
the subsequent open-end credit extensions.

                               References

    Statute: Sections 113, 125, 130, and the Housing and Community 
Development Technical Amendments Act of 1984, Sec. 205 (Pub. L. 98-479).
    Other sections: Section 226.2 and appendix G.
    Previous regulation: Section 226.9.
    1981 Changes: Section 226.15 reflects the statutory amendments of 
1980, providing for a limited right of rescission when individual credit 
extensions are made in accordance with a previously established credit 
limit for an open-end credit plan. The 1980 amendments provided that 
this limited rescission right be available for a three-year trial 
period. However, Pub. L. 98-479 now permanently exempts such individual 
credit extensions from the right of rescission.
    The right to rescind applies not only to real property used as the 
consumer's principal dwelling, but to personal property as well. The 
regulation provides no specific text or format for the rescission 
notice.
    When a consumer exercises the right to rescind, the creditor now has 
20 days to return a consumer's money or property and take the necessary 
action to terminate the security interest. The creditor has 20 days to 
take possession of the money or property after the consumer's tender 
before the consumer may keep it without further obligation.
    Under the revised regulation, the waiver provision has been relaxed. 
The lien status of the mortgage is irrelevant for purposes of the 
residential mortgage transaction exemption. The exemption for 
agricultural loans from the right to rescind has been deleted.

                       Section 226.16--Advertising

    1. Clear and conspicuous standard. Section 226.16 is subject to the 
general ``clear and conspicuous'' standard for subpart B (see 
Sec. 226.5(a)(1)) but prescribes no specific rules for the format of the 
necessary disclosures. The credit terms need not be printed in a certain 
type size nor need they appear in any particular place in the 
advertisement.
    2. Expressing the annual percentage rate in abbreviated form. 
Whenever the annual percentage rate is used in an advertisement for 
open-end credit, it may be expressed using a readily understandable 
abbreviation such as ``APR''.
    16(a) Actually available terms.
    1. General rule. To the extent that an advertisement mentions 
specific credit terms, it may state only those terms that the creditor 
is actually prepared to offer. For example, a creditor may not advertise 
a very low annual percentage rate that will not in fact be available at 
any time. Section 226.16(a) is not intended to inhibit the promotion of 
new credit programs, but to bar the advertising of terms that are not 
and will not be available. For example, a creditor may advertise terms 
that will be offered for only a limited period, or terms that will 
become available at a future date.
    2. Specific credit terms. Specific credit terms is not limited to 
the disclosures required by the regulation but would include any 
specific components of a credit plan, such as the minimum periodic 
payment amount or seller's points in a plan secured by real estate.
    16(b) Advertisement of terms that require additional disclosures.
    1. Terms requiring additional disclosures. In Sec. 226.16(b) the 
phrase the terms required to be disclosed under Sec. 226.6 refers to the 
terms in Sec. 226.6(a) and Sec. 226.6(b).
    2. Use of positive terms. An advertisement must state a credit term 
as a positive number in order to trigger additional disclosures. For 
example, no annual membership fee would not trigger the additional 
disclosures required by Sec. 226.16(b). (See, however, the rules in 
Sec. 226.16(d) relating to advertisements for home equity plans.)
    3. Implicit terms. Section 226.16(b) applies even if the triggering 
term is not stated explicitly, but may be readily determined from the 
advertisement.
    4. Membership fees. A membership fee is not a triggering term nor 
need it be disclosed under Sec. 226.16(b)(3) if it is required for 
participation in the plan whether or not an open-end credit feature is 
attached. (See Comment 6(b)-1.)
    5. Variable-rate plans. In disclosing the annual percentage rate in 
an advertisement for a variable-rate plan, as required by 
Sec. 226.16(b)(2), the creditor may use an insert showing the current 
rate; may give the rate as of a specified recent date; or may disclose 
an estimated rate under Sec. 226.5(c). The additional requirement in 
Sec. 226.16(b)(2) to disclose the variable-rate feature may be satisfied 
by disclosing that the annual percentage rate may vary or a similar 
statement, but the advertisement need not include the information 
required by footnote 12 to Sec. 226.6(a)(2).
    6. Discounted variable-rate plans--disclosure of the annual 
percentage rates. The advertised annual percentage rates for discounted 
variable-rate plans must, in accordance with comment 6(a)(2)-10, include 
both the initial rate (with the statement of how long it will remain in 
effect) and the current indexed rate (with the statement that this 
second

[[Page 365]]

rate may vary). The options listed in comment I6(b)-5 may be used in 
disclosing the current indexed rate.
    7. Triggering terms. The following are examples of terms that 
trigger additional disclosures:
     Small monthly service charge on the remaining balance, 
which describes how the amount of a finance charge will be determined.
     12 percent Annual Percentage Rate or A $15 annual 
membership fee buys you $2,000 in credit, which describe required 
disclosures using positive numbers.

    8. Minimum, fixed, transaction, activity, or similar charge. The 
charges to be disclosed under Sec. 226.16(b)(1) are those that are 
considered finance charges under Sec. 226.4.
    9. Deferred billing and deferred payment programs. Statements such 
as ``Charge it--you won't be billed until May'' or ``You may skip your 
January payment'' are not in themselves triggering terms, since the 
timing for initial billing or for monthly payments are not terms 
required to be disclosed under Sec. 226.6. However, a statement such as 
``No finance charge until May'' or any other statement regarding when 
finance charges begin to accrue is a triggering term, whether appearing 
alone or in conjunction with a description of a deferred billing or 
deferred payment program such as the examples above.
    16(c) Catalogs and multiple-page advertisements.
    1. Definition. The multiple-page advertisements to which 
Sec. 226.16(c) refers are advertisements consisting of a series of 
sequentially numbered pages--for example, a supplement to a newspaper. A 
mailing consisting of several separate flyers or pieces of promotional 
material in a single envelope does not constitute a single multiple-page 
advertisement for purposes of Sec. 226.16(c).
    Paragraph 16(c)(1).
    1. General. Section 226.16(c)(1) permits creditors to put credit 
information together in one place in a catalog or multiple-page 
advertisement. The rule applies only if the catalog or multiple-page 
advertisement contains one or more of the triggering terms from 
Sec. 226.16(b).
    Paragraph 16(c)(2).
    1. Table or schedule if credit terms depend on outstanding balance. 
If the credit terms of a plan vary depending on the amount of the 
balance outstanding, rather than the amount of any property purchased, a 
table or schedule complies with Sec. 226.16(c)(2) if it includes the 
required disclosures for representative balances. For example, a 
creditor would disclose that a periodic rate of 1.5% is applied to 
balances of $500 or less, and a 1% rate is applied to balances greater 
than $500.

          16(d)  Additional Requirements for Home Equity Plans

    1. Trigger terms. Negative as well as affirmative references trigger 
the requirement for additional information. For example, if a creditor 
states no annual fee, no points, or we waive closing costs in an 
advertisement, additional information must be provided. (See comment 
16(d)-4 regarding the use of a phrase such as no closing costs.) 
Inclusion of a statement such as low fees, however, would not trigger 
the need to state additional information. References to payment terms 
include references to the draw period or any repayment period, to the 
length of the plan, to how the minimum payments are determined and to 
the timing of such payments.
    2. Fees to open the plan. Section 226.16(d)(1)(i) requires a 
disclosure of any fees imposed by the creditor or a third party to open 
the plan. In providing the fee information required under this 
paragraph, the corresponding rules for disclosure of this information 
apply. For example, fees to open the plan may be stated as a range. 
Similarly, if property insurance is required to open the plan, a 
creditor either may estimate the cost of the insurance or provide a 
statement that such insurance is required. (See the commentary to 
Sec. 226.5b(d)(7) and (8).)
    3. Statements of tax deductibility. An advertisement referring to 
deductibility for tax purposes is not misleading if it includes a 
statement such as ``consult a tax advisor regarding the deductibility of 
interest.''
    4. Misleading terms prohibited. Under Sec. 226.16(d)(5), 
advertisements may not refer to home equity plans as free money or use 
other misleading terms. For example, an advertisement could not state 
``no closing costs'' or ``we waive closing costs'' if consumers may be 
required to pay any closing costs, such as recordation fees. In the case 
of property insurance, however, a creditor may state, for example, ``no 
closing costs'' even if property insurance may be required, as long as 
the creditor also provides a statement that such insurance may be 
required. (See the commentary to this section regarding fees to open a 
plan.)
    5. Relation to other sections. Advertisements for home equity plans 
must comply with all provisions in Sec. 226.16, not solely the rules in 
Sec. 226.16(d). If an advertisement contains information (such as the 
payment terms) that triggers the duty under Sec. 226.16(d) to state the 
annual percentage rate, the additional disclosures in Sec. 226.16(b) 
must be provided in the advertisement. While Sec. 226.16(d) does not 
require a statement of fees to use or maintain the plan (such as 
membership fees and transaction charges), such fees must be disclosed 
under Sec. 226.16(b) (1) and (3).
    6. Inapplicability of closed-end rules. Advertisements for home 
equity plans are governed solely by the requirements in Sec. 226.16,

[[Page 366]]

and not by the closed-end advertising rules in Sec. 226.24. Thus, if a 
creditor states payment information about the repayment phase, this will 
trigger the duty to provide additional information under Sec. 226.16, 
but not under Sec. 226.24.
    7. Balloon payment. In some programs, a balloon payment will occur 
if only the minimum payments under the plan are made. If an 
advertisement for such a program contains any statement about a minimum 
periodic payment, the advertisement must also state that a balloon 
payment will result (not merely that a balloon payment ``may'' result). 
(See comment 5b(d)(5)(ii)-3 for guidance on items not required to be 
stated in the advertisement, and on situations in which the balloon 
payment requirement does not apply.)

                               References

    Statute: Sections 141 and 143.
    Previous regulation: Section 226.10 (a) through (c) and 
Interpretation Sec. 226.1002.
    Other sections: Sections 226.2 and 226.6.
    1981 changes: Section 226.16 reflects the statutory changes to 
section 143 of the act which reduce both the number of triggering terms 
and the additional disclosures required by the use of those terms. 
Membership or participation fees are included among the additional 
disclosures required when a triggering term is used. The substance of 
Interpretation Sec. 226.1002, requiring disclosure of representative 
amounts of credit in catalogs and multiple-page advertisements, has been 
incorporated in simplified form in paragraph (c).

                      Subpart C--Closed-End Credit

             Section 226.17--General Disclosure Requirements

    17(a) Form of disclosures.
    Paragraph 17(a)(1).
    1. Clear and conspicuous. This standard requires that disclosures be 
in a reasonably understandable form. For example, while the regulation 
requires no mathematical progression or format, the disclosures must be 
presented in a way that does not obscure the relationship of the terms 
to each other. In addition, although no minimum type size is mandated, 
the disclosures must be legible, whether typewritten, handwritten, or 
printed by computer.
    2. Segregation of disclosures. The disclosures may be grouped 
together and segregated from other information in a variety of ways. For 
example, the disclosures may appear on a separate sheet of paper or may 
be set off from other information on the contract or other documents:
     By outlining them in a box
     By bold print dividing lines
     By a different color background
     By a different type style

(The general segregation requirement described in this subparagraph does 
not apply to the disclosures required under Secs. 226.19(b) and 
226.20(c) although the disclosures must be clear and conspicuous.)

    3. Location. The regulation imposes no specific location 
requirements on the segregated disclosures. For example:

     They may appear on a disclosure statement separate from all 
other material.
     They may be placed on the same document with the credit 
contract or other information, so long as they are segregated from that 
information.
     They may be shown on the front or back of a document.
     They need not begin at the top of a page.
     They may be continued from one page to another.

    4. Content of segregated disclosures. Footnotes 37 and 38 contain 
exceptions to the requirement that the disclosures under Sec. 226.18 be 
segregated from material that is not directly related to those 
disclosures. Footnote 37 lists the items that may be added to the 
segregated disclosures, even though not directly related to those 
disclosures. Footnote 38 lists the items required under Sec. 226.18 that 
may be deleted from the segregated disclosures and appear elsewhere. Any 
one or more of these additions or deletions may be combined and appear 
either together with or separate from the segregated disclosures. The 
itemization of the amount financed under Sec. 226.18(c), however, must 
be separate from the other segregated disclosures under Sec. 226.18. If 
a creditor chooses to include the security interest charges required to 
be itemized under Sec. 226.4(e) and Sec. 226.18(o) in the amount 
financed itemization, it need not list these charges elsewhere.
    5. Directly related. The segregated disclosures may, at the 
creditor's option, include any information that is directly related to 
those disclosures. The following is directly related information:
    i. A description of a grace period after which a late payment charge 
will be imposed. For example, the disclosure given under Sec. 226.18(l) 
may state that a late charge will apply to ``any payment received more 
than 15 days after the due date.''
    ii. A statement that the transaction is not secured. For example, 
the creditor may add a category labelled ``unsecured'' or ``not 
secured'' to the security interest disclosures given under 
Sec. 226.18(m).
    iii. The basis for any estimates used in making disclosures. For 
example, if the maturity date of a loan depends solely on the occurrence 
of a future event, the creditor may indicate that the disclosures assume 
that event will occur at a certain time.
    iv. The conditions under which a demand feature may be exercised. 
For example, in a

[[Page 367]]

loan subject to demand after five years, the disclosures may state that 
the loan will become payable on demand in five years.
    v. An explanation of the use of pronouns or other references to the 
parties to the transaction. For example, the disclosures may state, 
```You' refers to the customer and `we' refers to the creditor.''
    vi. Instructions to the creditor or its employees on the use of a 
multiple-purpose form. For example, the disclosures may state, ``Check 
box if applicable.''
    vii. A statement that the borrower may pay a minimum finance charge 
upon prepayment in a simple-interest transaction. For example, when 
state law prohibits penalties, but would allow a minimum finance charge 
in the event of prepayment, the creditor may make the Sec. 226.18(k)(1) 
disclosure by stating, ``You may be charged a minimum finance charge.''
    viii. A brief reference to negative amortization in variable-rate 
transactions. For example, in the variable-rate disclosure, the creditor 
may include a short statement such as ``Unpaid interest will be added to 
principal.'' (See the commentary to Sec. 226.18(f)(1)(iii).)
    ix. A brief caption identifying the disclosures. For example, the 
disclosures may bear a general title such as ``Federal Truth in Lending 
Disclosures'' or a descriptive title such as ``Real Estate Loan 
Disclosures.''
    x. A statement that a due-on-sale clause or other conditions on 
assumption are contained in the loan document. For example, the 
disclosure given under Sec. 226.18(q) may state, ``Someone buying your 
home may, subject to conditions in the due-on-sale clause contained in 
the loan document, assume the remainder of the mortgage on the original 
terms.''
    xi. If a state or Federal law prohibits prepayment penalties and 
excludes the charging of interest after prepayment from coverage as a 
penalty, a statement that the borrower may have to pay interest for some 
period after prepayment in full. The disclosure given under 
Sec. 226.18(k) may state, for example, ``If you prepay your loan on 
other than the regular installment date, you may be assessed interest 
charges until the end of the month.''
    xii. More than one hypothetical example under Sec. 226.18(f)(1)(iv) 
in transactions with more than one variable-rate feature. For example, 
in a variable-rate transaction with an option permitting consumers to 
convert to a fixed-rate transaction, the disclosures may include an 
example illustrating the effects on the payment terms of an increase 
resulting from conversion in addition to the example illustrating an 
increase resulting from changes in the index.
    xiii. The disclosures set forth under Sec. 226.18(f)(1) for 
variable-rate transactions subject to Sec. 226.18(f)(2).
    xiv. A statement whether or not a subsequent purchaser of the 
property securing an obligation may be permitted to assume the remaining 
obligation on its original terms.
    xv. A late-payment fee disclosure under Sec. 226.18(l) on a single 
payment loan.

    6. Multiple-purpose forms. The creditor may design a disclosure 
statement that can be used for more than one type of transaction, so 
long as the required disclosures for individual transactions are clear 
and conspicuous. (See the Commentary to appendices G and H for a 
discussion of the treatment of disclosures that do not apply to specific 
transactions.) Any disclosure listed in Sec. 226.18 (except the 
itemization of the amount financed under Sec. 226.18(c)) may be included 
on a standard disclosure statement even though not all of the creditor's 
transactions include those features. For example, the statement may 
include:

     The variable rate disclosure under Sec. 226.18(f).
     The demand feature disclosure under Sec. 226.18(i).
     A reference to the possibility of a security interest 
arising from a spreader clause, under Sec. 226.18(m).
     The assumption policy disclosure under Sec. 226.18(q).
     The required deposit disclosure under Sec. 226.18(r).
    7. Balloon payment financing with leasing characteristics. In 
certain credit sale or loan transactions, a consumer may reduce the 
dollar amount of the payments to be made during the course of the 
transaction by agreeing to make, at the end of the loan term, a large 
final payment based on the expected residual value of the property. The 
consumer may have a number of options with respect to the final payment, 
including, among other things, retaining the property and making the 
final payment, refinancing the final payment, or transferring the 
property to the creditor in lieu of the final payment. Such transactions 
may have some of the characteristics of lease transactions subject to 
Regulation M, but are considered credit transactions where the consumer 
assumes the indicia of ownership, including the risks, burdens and 
benefits of ownership upon consummation. These transactions are governed 
by the disclosure requirements of this regulation instead of Regulation 
M. Creditors should not include in the segregated Truth in Lending 
disclosures additional information. Thus, disclosures should show the 
large final payment in the payment schedule and should not, for example, 
reflect the other options available to the consumer at maturity.

    Paragraph 17(a)(2).
    1. When disclosures must be more conspicuous. The following rules 
apply to the requirement

[[Page 368]]

that the terms annual percentage rate and finance charge be shown more 
conspicuously:

     The terms must be more conspicuous only in relation to the 
other required disclosures under Sec. 226.18. For example, when the 
disclosures are included on the contract document, those 2 terms need 
not be more conspicuous as compared to the heading on the contract 
document or information required by state law.
     The terms need not be more conspicuous except as part of 
the finance charge and annual percentage rate disclosures under 
Sec. 226.18 (d) and (e), although they may, at the creditor's option, be 
highlighted wherever used in the required disclosures. For example, the 
terms may, but need not, be highlighted when used in disclosing a 
prepayment penalty under Sec. 226.18(k) or a required deposit under 
Sec. 226.18(r).
     The creditor's identity under Sec. 226.18(a) may, but need 
not, be more prominently displayed than the finance charge and annual 
percentage rate.
     The terms need not be more conspicuous than figures 
(including, for example, numbers, percentages, and dollar signs)

    2. Making disclosures more conspicuous. The terms finance charge and 
annual percentage rate may be made more conspicuous in any way that 
highlights them in relation to the other required disclosures. For 
example, they may be:

     Capitalized when other disclosures are printed in capital 
and lower case.
     Printed in larger type, bold print or different type face.
     Printed in a contrasting color.
     Underlined.
     Set off with asterisks.

                       17(b) Time of disclosures.

    1. Consummation. As a general rule, disclosures must be made before 
``consummation'' of the transaction. The disclosures need not be given 
by any particular time before consummation, except in certain mortgage 
transactions and variable-rate transactions secured by the consumer's 
principal dwelling with a term greater than one year under Sec. 226.19. 
(See the commentary to Sec. 226.2(a)(13) regarding the definition of 
consummation.)
    2. Converting open-end to closed-end credit. Except for home equity 
plans subject to Sec. 226.5b in which the agreement provides for a 
repayment phase, if an open-end credit account is converted to a closed-
end transaction under a written agreement with the consumer, the 
creditor must provide a set of closed-end credit disclosures before 
consummation of the closed-end transaction. (See the commentary to 
Sec. 226.19(b) for the timing rules for additional disclosures required 
upon the conversion to a variable-rate transaction secured by a 
consumer's principal dwelling with a term greater than one year.) If 
consummation of the closed-end transaction occurs at the same time as 
the consumer enters into the open-end agreement, the closed-end credit 
disclosures may be given at the time of conversion. If disclosures are 
delayed until conversion and the closed-end transaction has a variable-
rate feature, disclosures should be based on the rate in effect at the 
time of conversion. (See the commentary to Sec. 226.5 regarding 
conversion of closed-end to open-end credit.)
    17(c) Basis of disclosures and use of estimates.
    Paragraph 17(c)(1).
    1. Legal obligation. The disclosures shall reflect the credit terms 
to which the parties are legally bound as of the outset of the 
transaction. In the case of disclosures required under Sec. 226.20(c), 
the disclosures shall reflect the credit terms to which the parties are 
legally bound when the disclosures are provided. The legal obligation is 
determined by applicable state law or other law. (Certain transactions 
are specifically addressed in this commentary. See, for example, the 
discussion of buydown transactions elsewhere in the commentary to 
Sec. 226.17(c).)

     The fact that a term or contract may later be deemed 
unenforceable by a court on the basis of equity or other grounds does 
not, by itself, mean that disclosures based on that term or contract did 
not reflect the legal obligation.

    2. Modification of obligation. The legal obligation normally is 
presumed to be contained in the note or contract that evidences the 
agreement. But this presumption is rebutted if another agreement between 
the parties legally modifies that note or contract. If the parties 
informally agree to a modification of the legal obligation, the 
modification should not be reflected in the disclosures unless it rises 
to the level of a change in the terms of the legal obligation. For 
example:

     If the creditor offers a preferential rate, such as an 
employee preferred rate, the disclosures should reflect the terms of the 
legal obligation. (See the commentary to Sec. 226.19(b) for an example 
of a preferred-rate transaction that is a variable-rate transaction.)
     If the contract provides for a certain monthly payment 
schedule but payments are made on a voluntary payroll deduction plan or 
an informal principal-reduction agreement, the disclosures should 
reflect the schedule in the contract.
     If the contract provides for regular monthly payments but 
the creditor informally permits the consumer to defer payments from time 
to time, for instance, to take account of holiday seasons or seasonal 
employment, the disclosures should reflect the regular monthly payments.

    3. Third-party buydowns. In certain transactions, a seller or other 
third party may

[[Page 369]]

pay an amount, either to the creditor or to the consumer, in order to 
reduce the consumer's payments or buy down the interest rate for all or 
a portion of the credit term. For example, a consumer and a bank agree 
to a mortgage with an interest rate of 15% and level payments over 25 
years. By a separate agreement, the seller of the property agrees to 
subsidize the consumer's payments for the first 2 years of the mortgage, 
giving the consumer an effective rate of 12% for that period.

     If the lower rate is reflected in the credit contract 
between the consumer and the bank, the disclosures must take the buydown 
into account. For example, the annual percentage rate must be a 
composite rate that takes account of both the lower initial rate and the 
higher subsequent rate, and the payment schedule disclosures must 
reflect the 2 payment levels. However, the amount paid by the seller 
would not be specifically reflected in the disclosures given by the 
bank, since that amount constitutes seller's points and thus is not part 
of the finance charge.
     If the lower rate is not reflected in the credit contract 
between the consumer and the bank and the consumer is legally bound to 
the 15% rate from the outset, the disclosures given by the bank must not 
reflect the seller buydown in any way. For example, the annual 
percentage rate and payment schedule would not take into account the 
reduction in the interest rate and payment level for the first 2 years 
resulting from the buydown.

    4. Consumer buydowns. In certain transactions, the consumer may pay 
an amount to the creditor to reduce the payments or obtain a lower 
interest rate on the transaction. Consumer buydowns must be reflected in 
the disclosures given for that transaction. To illustrate, in a mortgage 
transaction, the creditor and consumer agree to a note specifying a 14 
percent interest rate. However, in a separate document, the consumer 
agrees to pay an amount to the creditor at consummation in return for a 
reduction in the interest rate to 12 percent for a portion of the 
mortgage term. The amount paid by the consumer may be deposited in an 
escrow account or may be retained by the creditor. Depending upon the 
buydown plan, the consumer's prepayment of the obligation may or may not 
result in a portion of the amount being credited or refunded to the 
consumer. In the disclosures given for the mortgage, the creditor must 
reflect the terms of the buydown agreement. For example:

     The amount paid by the consumer is a prepaid finance charge 
(even if deposited in an escrow account).
     A composite annual percentage rate must be calculated, 
taking into account both interest rates, as well as the effect of the 
prepaid finance charge.
     The payment schedule must reflect the multiple payment 
levels resulting from the buydown.

    The rules regarding consumer buydowns do not apply to transactions 
known as ``lender buydowns,'' In lender buydowns. a creditor pays an 
amount (either into an account or to the party to whom the obligation is 
sold) to reduce the consumer's payments or interest rate for all or a 
portion of the credit term. Typically, these transactions are structured 
as a buydown of the interest rate during an initial period of the 
transaction with a higher than usual rate for the remainder of the term. 
The disclosures for lender buydowns should be based on the terms of the 
legal obligation between the consumer and the creditor. (See comment 
17(c)(1)-3 for the analogous rules concerning third-party buydowns.)
    5. Split buydowns. In certain transactions, a third party (such as a 
seller) and a consumer both pay an amount to the creditor to reduce the 
interest rate. The creditor must include the portion paid by the 
consumer in the finance charge and disclose the corresponding multiple 
payment levels and composite annual percentage rate. The portion paid by 
the third party and the corresponding reduction in interest rate, 
however, should not be reflected in the disclosures unless the lower 
rate is reflected in the credit contract. (See the discussion on third-
party and consumer buydown transactions elsewhere in the commentary to 
Sec. 226.17(c).)
    6. Wrap-around financing. Wrap-around transactions, usually loans, 
involve the creditor's wrapping the outstanding balance on an existing 
loan and advancing additional funds to the consumer. The pre-existing 
loan, which is wrapped, may be to the same consumer or to a different 
consumer. In either case, the consumer makes a single payment to the new 
creditor, who makes the payments on the pre-existing loan to the 
original creditor. Wrap-around loans or sales are considered new single-
advance transactions, with an amount financed equalling the sum of the 
new funds advanced by the wrap creditor and the remaining principal owed 
to the original creditor on the pre-existing loan. In disclosing the 
itemization of the amount financed, the creditor may use a label such as 
``the amount that will be paid to creditor X'' to describe the remaining 
principal balance on the pre-existing loan. This approach to Truth in 
Lending calculations has no effect on calculations required by other 
statutes, such as state usury laws.
    7. Wrap-around financing with balloon payments. For wrap-around 
transactions involving a large final payment of the new funds before the 
maturity of the pre-existing loan, the amount financed is the sum of the 
new funds and the remaining principal on the pre-existing loan. The 
disclosures should be based on the shorter term of the wrap loan,

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with a large final payment of both the new funds and the total remaining 
principal on the pre-existing loan (although only the wrap loan will 
actually be paid off at that time).
    8. Basis of disclosures in variable-rate transactions. The 
disclosures for a variable-rate transaction must be given for the full 
term of the transaction and must be based on the terms in effect at the 
time of consummation. Creditors should base the disclosures only on the 
initial rate and should not assume that this rate will increase. For 
example, in a loan with an initial rate of 10 percent and a 5 percentage 
points rate cap, creditors should base the disclosures on the initial 
rate and should not assume that this rate will increase 5 percentage 
points. However, in a variable-rate transaction with a seller buydown 
that is reflected in the credit contract, a consumer buydown, or a 
discounted or premium rate, disclosures should not be based solely on 
the initial terms. In those transactions, the disclosed annual 
percentage rate should be a composite rate based on the rate in effect 
during the initial period and the rate that is the basis of the 
variable-rate feature for the remainder of the term. (See the commentary 
to Sec. 226.17(c) for a discussion of buydown, discounted, and premium 
transactions and the commentary to section 226.19(a)(2) for a discussion 
of the redisclosure in certain residential mortgage transactions with a 
variable-rate feature).
    9. Use of estimates in variable-rate transactions. The variable-rate 
feature does not, by itself, make the disclosures estimates.
    10. Discounted and premium variable-rate transactions. In some 
variable-rate transactions, creditors may set an initial interest rate 
that is not determined by the index or formula used to make later 
interest rate adjustments. Typically, this initial rate charged to 
consumers is lower than the rate would be if it were calculated using 
the index or formula. However, in some cases the initial rate may be 
higher. In a discounted transaction, for example, a creditor may 
calculate interest rates according to a formula using the six-month 
Treasury bill rate plus a 2 percent margin. If the Treasury bill rate at 
consummation is 10 percent, the creditor may forgo the 2 percent spread 
and charge only 10 percent for a limited time, instead of setting an 
initial rate of 12 percent.
    i. When creditors use an initial interest rate that is not 
calculated using the index or formula for later rate adjustments, the 
disclosures should reflect a composite annual percentage rate based on 
the initial rate for as long as it is charged and, for the remainder of 
the term, the rate that would have been applied using the index or 
formula at the time of consummation. The rate at consummation need not 
be used if a contract provides for a delay in the implementation of 
changes in an index value. For example, if the contract specifies that 
rate changes are based on the index value in effect 45 days before the 
change date, creditors may use any index value in effect during the 45 
day period before consummation in calculating a composite annual 
percentage rate.
    ii. The effect of the multiple rates must also be reflected in the 
calculation and disclosure of the finance charge, total of payments, and 
payment schedule.
    iii. If a loan contains a rate or payment cap that would prevent the 
initial rate or payment, at the time of the first adjustment, from 
changing to the rate determined by the index or formula at consummation, 
the effect of that rate or payment cap should be reflected in the 
disclosures.
    iv. Because these transactions involve irregular payment amounts, an 
annual percentage rate tolerance of \1/4\ of 1 percent applies, in 
accordance with Sec. 226.22(a)(3).
    v. Examples of discounted variable-rate transactions include:
    A. A 30-year loan for $100,000 with no prepaid finance charges and 
rates determined by the Treasury bill rate plus 2 percent. Rate and 
payment adjustments are made annually. Although the Treasury bill rate 
at the time of consummation is 10 percent, the creditor sets the 
interest rate for one year at 9 percent, instead of 12 percent according 
to the formula. The disclosures should reflect a composite annual 
percentage rate of 11.63 percent based on 9 percent for one year and 12 
percent for 29 years. Reflecting those two rate levels, the payment 
schedule should show 12 payments of $804.62 and 348 payments of 
$1,025.31. The finance charge should be $266,463.32 and the total of 
payments $366,463.32.
    B. Same loan as above, except with a 2 percent rate cap on periodic 
adjustments. The disclosures should reflect a composite annual 
percentage rate of 11.53 percent based on 9 percent for the first year, 
11 percent for the second year, and 12 percent for the remaining 28 
years. Reflecting those three rate levels, the payment schedule should 
show 12 payments of $804.62, 12 payments of $950.09, and 336 payments of 
$1,024.34. The finance charge should be $265,234.76 and the total of 
payments $365,234.76.
    C. Same loan as above, except with a 7\1/2\ percent cap on payment 
adjustments. The disclosures should reflect a composite annual 
percentage rate of 11.64 percent, based on 9 percent for one year and 12 
percent for 29 years. Because of the payment cap, five levels of 
payments should be reflected. The payment schedule should show 12 
payments of $804.62, 12 payments of $864.97, 12 payments of $929.84, 12 
payments of $999.58, and 312 payments of $1,070.04. The finance charge 
should be $277,040.60, and the total of payments $377,040.60.
    vi. A loan in which the initial interest rate is set according to 
the index or formula used

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for later adjustments but is not set at the value of the index or 
formula at consummation is not a discounted variable-rate loan. For 
example, if a creditor commits to an initial rate based on the formula 
on a date prior to consummation, but the index has moved during the 
period between that time and consummation, a creditor should base its 
disclosures on the initial rate.
    11. Examples of variable-rate transactions. Variable-rate 
transactions include:
     Renewable balloon-payment instruments where the creditor is 
both unconditionally obligated to renew the balloon-payment loan at the 
consumer's option (or is obligated to renew subject to conditions within 
the consumer's control) and has the option of increasing the interest 
rate at the time of renewal. Disclosures must be based on the payment 
amortization (unless the specified term of the obligation with renewals 
is shorter) and on the rate in effect at the time of consummation of the 
transaction. (Examples of conditions within a consumer's control include 
requirements that a consumer be current in payments or continue to 
reside in the mortgaged property. In contrast, setting a limit on the 
rate at which the creditor would be obligated to renew or reserving the 
right to change the credit standards at the time of renewal are examples 
of conditions outside a consumer's control.) If, however, a creditor is 
not obligated to renew as described above, disclosures must be based on 
the term of the balloon-payment loan. Disclosures also must be based on 
the term of the balloon-payment loan in balloon-payment instruments in 
which the legal obligation provides that the loan will be renewed by a 
``refinancing'' of the obligation, as that term is defined by 
Sec. 226.20(a). If it cannot be determined from the legal obligation 
that the loan will be renewed by a ``refinancing,'' disclosures must be 
based either on the term of the balloon-payment loan or on the payment 
amortization, depending on whether the creditor is unconditionally 
obligated to renew the loan as described above. (This discussion does 
not apply to construction loans subject to Sec. 226.17(c)(6).)
     ``Shared-equity'' or ``shared-appreciation'' mortgages that 
have a fixed rate of interest and an appreciation share based on the 
consumer's equity in the mortgaged property. The appreciation share is 
payable in a lump sum at a specified time. Disclosures must be based on 
the fixed interest rate. (As discussed in the commentary to Sec. 226.2, 
other types of shared-equity arrangements are not considered ``credit'' 
and are not subject to Regulation Z.)
     Preferred-rate loans where the terms of the legal 
obligation provide that the initial underlying rate is fixed but will 
increase upon the occurrence of some event, such as an employee leaving 
the employ of the creditor, and the note reflects the preferred rate. 
The disclosures are to be based on the preferred rate.
     Graduated-payment mortgages and step-rate transactions 
without a variable-rate feature are not considered variable-rate 
transactions.
     ``Price level adjusted mortgages'' or other indexed 
mortgages that have a fixed rate of interest but provide for periodic 
adjustments to payments and the loan balance to reflect changes in an 
index measuring prices or inflation. Disclosures are to be based on the 
fixed interest rate.
    12. Graduated payment adjustable rate mortgages. These mortgages 
involve both a variable interest rate and scheduled variations in 
payment amounts during the loan term. For example, under these plans, a 
series of graduated payments may be scheduled before rate adjustments 
affect payment amounts, or the initial scheduled payment may remain 
constant for a set period before rate adjustments affect the payment 
amount. In any case, the initial payment amount may be insufficient to 
cover the scheduled interest, causing negative amortization from the 
outset of the transaction. In these transactions, the disclosures should 
treat these features as follows:

     The finance charge includes the amount of negative 
amortization based on the assumption that the rate in effect at 
consummation remains unchanged.
     The amount financed does not include the amount of negative 
amortization.
     As in any variable-rate transaction, the annual percentage 
rate is based on the terms in effect at consummation.
     The schedule of payments discloses the amount of any 
scheduled initial payments followed by an adjusted level of payments 
based on the initial interest rate. Since some mortgage plans contain 
limits on the amount of the payment adjustment, the payment schedule may 
require several different levels of payments, even with the assumption 
that the original interest rate does not increase.

    13. Growth-equity mortgages. Also referred to as payment-escalated 
mortgages, these mortgage plans involve scheduled payment increases to 
prematurely amortize the loan. The initial payment amount is determined 
as for a long-term loan with a fixed interest rate. Payment increases 
are scheduled periodically, based on changes in an index. The larger 
payments result in accelerated amortization of the loan. In disclosing 
these mortgage plans, creditors may either:
     Estimate the amount of payment increases, based on the best 
information reasonably available; or

[[Page 372]]

     Disclose by analogy to the variable-rate disclosures in 
226.18(f)(1).

(This discussion does not apply to growth-equity mortgages in which the 
amount of payment increases can be accurately determined at the time of 
disclosure. For these mortgages, as for graduated-payment mortgages, 
disclosures should reflect the scheduled increases in payments.)
    14. Reverse mortgages. Reverse mortgages, also known as reverse 
annuity or home equity conversion mortgages, typically involve the 
disbursement of monthly advances to the consumer for a fixed period or 
until the occurrence of an event such as the consumer's death. Repayment 
of the loan (generally a single payment of principal and accrued 
interest) may be required to be made at the end of the disbursements or, 
for example, upon the death of the consumer. In disclosing these 
transactions, creditors must apply the following rules, as applicable:
     If the reverse mortgage has a specified period for 
disbursements but repayment is due only upon the occurrence of a future 
event such as the death of the consumer, the creditor must assume that 
disbursements will be made until they are scheduled to end. The creditor 
must assume repayment will occur when disbursements end (or within a 
period following the final disbursement which is not longer than the 
regular interval between disbursements). This assumption should be used 
even though repayment may occur before or after the disbursements are 
scheduled to end. In such cases, the creditor may include a statement 
such as ``The disclosures assume that you will repay the loan at the 
time our payments to you end. As provided in your agreement, your 
repayment may be required at a different time.''
     If the reverse mortgage has neither a specified period for 
disbursements nor a specified repayment date and these terms will be 
determined solely by reference to future events including the consumer's 
death, the creditor may assume that the disbursements will end upon the 
consumer's death (estimated by using actuarial tables, for example) and 
that repayment will be required at the same time (or within a period 
following the date of the final disbursement which is not longer than 
the regular interval for disbursements). Alternatively, the creditor may 
base the disclosures upon another future event it estimates will be most 
likely to occur first. (If terms will be determined by reference to 
future events which do not include the consumer's death, the creditor 
must base the disclosures upon the occurence of the event estimated to 
be most likely to occur first.)
     In making the disclosures, the creditor must assume that 
all disbursements and accrued interest will be paid by the consumer. For 
example, if the note has a nonrecourse provision providing that the 
consumer is not obligated for an amount greater than the value of the 
house, the creditor must nonetheless assume that the full amount to be 
disbursed will be repaid. In this case, however, the creditor may 
include a statement such as ``The disclosures assume full repayment of 
the amount advanced plus accrued interest, although the amount you may 
be required to pay is limited by your agreement.''
     Some reverse mortgages provide that some or all of the 
appreciation in the value of the property will be shared between the 
consumer and the creditor. Such loans are considered variable-rate 
mortgages, as described in comment 17(c)(1)-11, and the appreciation 
feature must be disclosed in accordance with Sec. 226.18(f)(1). If the 
reverse mortgage has a variable interest rate, is written for a term 
greater than one year, and is secured by the consumer's principal 
dwelling, the shared appreciation feature must be described under 
Sec. 226.19(b)(2)(vii).
    15. Morris Plan transactions. When a deposit account is created for 
the sole purpose of accumulating payments and then is applied to satisfy 
entirely the consumer's obligation in the transaction, each deposit made 
into the account is considered the same as a payment on a loan for 
purposes of making disclosures.
    16. Number of transactions. Creditors have flexibility in handling 
credit extensions that may be viewed as multiple transactions. For 
example:

     When a creditor finances the credit sale of a radio and a 
television on the same day, the creditor may disclose the sales as 
either 1 or 2 credit sale transactions.
     When a creditor finances a loan along with a credit sale of 
health insurance, the creditor may disclose in one of several ways: a 
single credit sale transaction, a single loan transaction, or a loan and 
a credit sale transaction.
     The separate financing of a downpayment in a credit sale 
transaction may, but need not, be disclosed as 2 transactions (a credit 
sale and a separate transaction for the financing of the downpayment).

    17. Special rules for tax refund anticipation loans. Tax refund 
loans, also known as refund anticipation loans (RALs), are transactions 
in which a creditor will lend up to the amount of a consumer's expected 
tax refund. RAL agreements typically require repayment upon demand, but 
also may provide that repayment is required when the refund is made. The 
agreements also typically provide that if the amount of the refund is 
less than the payment due, the consumer must pay the difference. 
Repayment often is made by a preauthorized offset to a consumer's 
account held with the creditor when the refund has been deposited by 
electronic transfer.

[[Page 373]]

Creditors may charge fees for RALs in addition to fees for filing the 
consumer's tax return electronically. In RAL transactions subject to the 
regulation the following special rules apply:
     If, under the terms of the legal obligation, repayment of 
the loan is required when the refund is received by the consumer (such 
as by deposit into the consumer's account), the disclosures should be 
based on the creditor's estimate of the time the refund will be 
delivered even if the loan also contains a demand clause. The practice 
of a creditor to demand repayment upon delivery of refunds does not 
determine whether the legal obligation requires that repayment be made 
at that time; this determination must be made according to applicable 
state or other law. (See comment 17(c)(5)-1 for the rules regarding 
disclosures if the loan is payable solely on demand or is payable either 
on demand or on an alternate maturity date.)
     If the consumer is required to repay more than the amount 
borrowed, the difference is a finance charge unless excluded under 
Sec. 226.4. In addition, to the extent that any fees charged in 
connection with the loan (such as for filing the tax return 
electronically) exceed those fees for a comparable cash transaction 
(that is, filing the tax return electronically without a loan), the 
difference must be included in the finance charge.
    18. Pawn Transactions. When, in connection with an extension of 
credit, a consumer pledges or sells an item to a pawnbroker creditor in 
return for a sum of money and retains the right to redeem the item for a 
greater sum (the redemption price) within a specified period of time, 
disclosures are required. In addition to other disclosure requirements 
that may be applicable under Sec. 226.18, for purposes of pawn 
transactions:
    i. The amount financed is the initial sum paid to the consumer. The 
pawnbroker creditor need not provide a separate itemization of the 
amount financed if that entire amount is paid directly to the consumer 
and the disclosed description of the amount financed is ``the amount of 
cash given directly to you'' or a similar phrase.
    ii. The finance charge is the difference between the initial sum 
paid to the consumer and the redemption price plus any other finance 
charges paid in connection with the transaction. (See Sec. 226.4.)
    iii. The term of the transaction, for calculating the annual 
percentage rate, is the period of time agreed to by the pawnbroker 
creditor and the consumer. The term of the transaction does not include 
a grace period (including any statutory grace period) after the agreed 
redemption date.
    Paragraph 17(c)(2)(i).
    1. Basis for estimates. Disclosures may be estimated when the exact 
information is unknown at the time disclosures are made. Information is 
unknown if it is not reasonably available to the creditor at the time 
the disclosures are made. The ``reasonably available'' standard requires 
that the creditor, acting in good faith, exercise due diligence in 
obtaining information. For example, the creditor must at a minimum 
utilize generally accepted calculation tools, but need not invest in the 
most sophisticated computer program to make a particular type of 
calculation. The creditor normally may rely on the representations of 
other parties in obtaining information. For example, the creditor might 
look to the consumer for the time of consummation, to insurance 
companies for the cost of insurance, or to realtors for taxes and escrow 
fees. The creditor may utilize estimates in making disclosures even 
though the creditor knows that more precise information will be 
available by the point of consummation. However, new disclosures may be 
required under Sec. 226.17(f) or Sec. 226.19.
    2. Labelling estimates. Estimates must be designated as such in the 
segregated disclosures. Even though other disclosures are based on the 
same assumption on which a specific estimated disclosure was based, the 
creditor has some flexibility in labelling the estimates. Generally, 
only the particular disclosure for which the exact information is 
unknown is labelled as an estimate. However, when several disclosures 
are affected because of the unknown information, the creditor has the 
option of labelling either every affected disclosure or only the 
disclosure primarily affected. For example, when the finance charge is 
unknown because the date of consummation is unknown, the creditor must 
label the finance charge as an estimate and may also label as estimates 
the total of payments and the payment schedule. When many disclosures 
are estimates, the creditor may use a general statement, such as ``all 
numerical disclosures except the late payment disclosure are 
estimates,'' as a method to label those disclosures as estimates.
    3. Simple-interest transactions. If consumers do not make timely 
payments in a simple-interest transaction, some of the amounts 
calculated for Truth in Lending disclosures will differ from amounts 
that consumers will actually pay over the term of the transaction. 
Creditors may label disclosures as estimates in these transactions. For 
example, because the finance charge and total of payments may be larger 
than disclosed if consumers make late payments, creditors may label the 
finance charge and total of payments as estimates. On the other hand, 
creditors may choose not to label disclosures as estimates and may base 
all disclosures on the assumption that payments will be made on time, 
disregarding any possible inaccuracies resulting from consumers' payment 
patterns.
    Paragraph 17(c)(2)(ii).
    Paragraph 17(c)(3)

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    1. Minor variations. Section 226.17(c)(3) allows creditors to 
disregard certain factors in calculating and making disclosures. For 
example:

     Creditors may ignore the effects of collecting payments in 
whole cents. Because payments cannot be collected in fractional cents, 
it is often difficult to amortize exactly an obligation with equal 
payments; the amount of the last payment may require adjustment to 
account for the rounding of the other payments to whole cents.
     Creditors may base their disclosures on calculation tools 
that assume that all months have an equal number of days, even if their 
practice is to take account of the variations in months for purposes of 
collecting interest. For example, a creditor may use a calculation tool 
based on a 360-day year, when it in fact collects interest by applying a 
factor of 1/365 of the annual rate to 365 days. This rule does not, 
however, authorize creditors to ignore, for disclosure purposes, the 
effects of applying 1/360 of an annual rate to 365 days.
    2. Use of special rules. A creditor may utilize the special rules in 
Sec. 226.17(c)(3) for purposes of calculating and making all disclosures 
for a transaction or may, at its option, use the special rules for some 
disclosures and not others.
    Paragraph 17(c)(4).
    1. Payment schedule irregularities. When one or more payments in a 
transaction differ from the others because of a long or short first 
period, the variations may be ignored in disclosing the payment 
schedule, finance charge, annual percentage rate, and other terms. For 
example:

     A 36-month auto loan might be consummated on June 8 with 
payments due on July 1 and the first of each succeeding month. The 
creditor may base its calculations on a payment schedule that assumes 36 
equal intervals and 36 equal installment payments, even though a precise 
computation would produce slightly different amounts because of the 
shorter first period.
     By contrast, in the same example, if the first payment were 
not scheduled until August 1, the irregular first period would exceed 
the limits in Sec. 226.17(c)(4); the creditor could not use the special 
rule and could not ignore the extra days in the first period in 
calculating its disclosures.

    2. Measuring odd periods. In determining whether a transaction may 
take advantage of the rule in Sec. 226.17(c)(4), the creditor must 
measure the variation against a regular period. For purposes of that 
rule:

     The first period is the period from the date on which the 
finance charge begins to be earned to the date of the first payment.
     The term is the period from the date on which the finance 
charge begins to be earned to the date of the final payment.
     The regular period is the most common interval between 
payments in the transaction.

    In transactions involving regular periods that are monthly, 
semimonthly or multiples of a month, the length of the irregular and 
regular periods may be calculated on the basis of either the actual 
number of days or an assumed 30-day month. In other transactions, the 
length of the periods is based on the actual number of days.
    3. Use of special rules. A creditor may utilize the special rules in 
Sec. 226.17(c)(4) for purposes of calculating and making some 
disclosures but may elect not to do so for all of the disclosures. For 
example, the variations may be ignored in calculating and disclosing the 
annual percentage rate but taken into account in calculating and 
disclosing the finance charge and payment schedule.
    4. Relation to prepaid finance charges. Prepaid finance charges, 
including ``odd-days'' or ``per-diem'' interest, paid prior to or at 
closing may not be treated as the first payment on a loan. Thus, 
creditors may not disregard an irregularity in disclosing such finance 
charges.
    Paragraph 17(c)(5).
    1. Demand disclosures. Disclosures for demand obligations are based 
on an assumed 1-year term, unless an alternate maturity date is stated 
in the legal obligation. Whether an alternate maturity date is stated in 
the legal obligation is determined by applicable law. An alternate 
maturity date is not inferred from an informal principal reduction 
agreement or a similar understanding between the parties. However, when 
the note itself specifies a principal reduction schedule (for example, 
``payable on demand or $2,000 plus interest quarterly''), an alternate 
maturity is stated and the disclosures must reflect that date.
    2. Future event as maturity date. An obligation whose maturity date 
is determined solely by a future event, as for example, a loan payable 
only on the sale of property, is not a demand obligation. Because no 
demand feature is contained in the obligation, demand disclosures under 
Sec. 226.18(i) are inapplicable. The disclosures should be based on the 
creditor's estimate of the time at which the specified event will occur, 
and may indicate the basis for the creditor's estimate, as noted in the 
commentary to Sec. 226.17(a).
    3. Demand after stated period. Most demand transactions contain a 
demand feature that may be exercised at any point during the term, but 
certain transactions convert to demand status only after a fixed period. 
For example, in States prohibiting due-on-sale clauses, the Federal 
National Mortgage Association (FNMA) requires mortgages that it 
purchases to include a call option rider that

[[Page 375]]

may be exercised after 7 years. These mortgages are generally written as 
long-term obligations, but contain a demand feature that may be 
exercised only within a 30-day period at 7 years. The disclosures for 
these transactions should be based upon the legally agreed-upon maturity 
date. Thus, if a mortgage containing the 7-year FNMA call option is 
written as a 20-year obligation, the disclosures should be based on the 
20-year term, with the demand feature disclosed under Sec. 226.18(i).
    4. Balloon mortgages. Balloon payment mortgages, with payments based 
on a long-term amortization schedule and a large final payment due after 
a shorter term, are not demand obligations unless a demand feature is 
specifically contained in the contract. For example, a mortgage with a 
term of 5 years and a payment schedule based on 20 years would not be 
treated as a mortgage with a demand feature, in the absence of any 
contractual demand provisions. In this type of mortgage, disclosures 
should be based on the 5-year term.
    Paragraph 17(c)(6).
    1. Series of advances. Section 226.17(c)(6)(i) deals with a series 
of advances under an agreement to extend credit up to a certain amount. 
A creditor may treat all of the advances as a single transaction or 
disclose each advance as a separate transaction. If these advances are 
treated as 1 transaction and the timing and amounts of advances are 
unknown, creditors must make disclosures based on estimates, as provided 
in Sec. 226.17(c)(2). If the advances are disclosed separately, 
disclosures must be provided before each advance occurs, with the 
disclosures for the first advance provided by consummation.
    2. Construction loans. Section 226.17(c)(6)(ii) provides a flexible 
rule for disclosure of construction loans that may be permanently 
financed. These transactions have 2 distinct phases, similar to 2 
separate transactions. The construction loan may be for initial 
construction or subsequent construction, such as rehabilitation or 
remodelling. The construction period usually involves several 
disbursements of funds at times and in amounts that are unknown at the 
beginning of that period, with the consumer paying only accrued interest 
until construction is completed. Unless the obligation is paid at that 
time, the loan then converts to permanent financing in which the loan 
amount is amortized just as in a standard mortgage transaction. Section 
226.17(c)(6)(ii) permits the creditor to give either one combined 
disclosure for both the construction financing and the permanent 
financing, or a separate set of disclosures for the 2 phases. This rule 
is available whether the consumer is initially obligated to accept 
construction financing only or is obligated to accept both construction 
and permanent financing from the outset. If the consumer is obligated on 
both phases and the creditor chooses to give 2 sets of disclosures, both 
sets must be given to the consumer initially, because both transactions 
would be consummated at that time. (Appendix D provides a method of 
calculating the annual percentage rate and other disclosures for 
construction loans, which may be used, at the creditor's option, in 
disclosing construction financing.)
    3. Multiple-advance construction loans. Section 226.17(c)(6)(i) and 
(ii) are not mutually exclusive. For example, in a transaction that 
finances the construction of a dwelling that may be permanently financed 
by the same creditor, the construction phase may consist of a series of 
advances under an agreement to extend credit up to a certain amount. In 
these cases, the creditor may disclose the construction phase as either 
1 or more than 1 transaction and also disclose the permanent financing 
as a separate transaction.
    4. Residential mortgage transaction. See the commentary to 
Sec. 226.2(a)(24) for a discussion of the effect of Sec. 226.17(c)(6) on 
the definition of a residential mortgage transaction.
    5. Allocation of points. When a creditor utilizes the special rule 
in Sec. 226.17(c)(6) to disclose credit extensions as multiple 
transactions, buyers points or similar amounts imposed on the consumer 
must be allocated for purposes of calculating disclosures. While such 
amounts should not be taken into account more than once in making 
calculations, they may be allocated between the transactions in any 
manner the creditor chooses. For example, if a construction-permanent 
loan is subject to 5 points imposed on the consumer and the creditor 
chooses to disclose the 2 phases separately, the 5 points may be 
allocated entirely to the construction loan, entirely to the permanent 
loan, or divided in any manner between the two. However, the entire 5 
points may not be applied twice, that is, to both the construction and 
the permanent phases.
    17(d) Multiple creditors; multiple consumers.
    1. Multiple creditors. If a credit transaction involves more than 
one creditor:

 The creditors must choose which of them will make the 
disclosures.
 A single, complete set of disclosures must be provided, rather 
than partial disclosures from several creditors.
 All disclosures for the transaction must be given, even if the 
disclosing creditor would not otherwise have been obligated to make a 
particular disclosure. For example, if one of the creditors is the 
seller, the total sale price disclosure under Sec. 226.18(j) must be 
made, even though the disclosing creditor is not the seller.

    2. Multiple consumers. When two consumers are joint obligors with 
primary liability on an obligation, the disclosures may be given to 
either one of them. If one consumer is

[[Page 376]]

merely a surety or guarantor, the disclosures must be given to the 
principal debtor. In rescindable transactions, however, separate 
disclosures must be given to each consumer who has the right to rescind 
under Sec. 226.23, although the disclosures required under 
Sec. 226.19(b) need only be provided to the consumer who expresses an 
interest in a variable-rate loan program.
    17(e) Effect of subsequent events.
    1. Events causing inaccuracies. Inaccuracies in disclosures are not 
violations if attributable to events occurring after the disclosures are 
made. For example, when the consumer fails to fulfill a prior commitment 
to keep the collateral insured and the creditor then provides the 
coverage and charges the consumer for it, such a change does not make 
the original disclosures inaccurate. The creditor may, however, be 
required to make new disclosures under Sec. 226.17(f) or Sec. 226.19 if 
the events occurred between disclosure and consummation or under 
Sec. 226.20 if the events occurred after consummation.
    17(f) Early disclosures.
    1. Change in rate or other terms. Redisclosure is required for 
changes that occur between the time disclosures are made and 
consummation if the annual percentage rate in the consummated 
transaction exceeds the limits prescribed in Sec. 226.22(a) (\1/8\ of 1 
percentage point in regular transactions and \1/4\ of 1 percentage point 
in irregular transactions). Redisclosure is also required, even if the 
annual percentage rate is within the permitted tolerance, if the 
disclosures were not based on estimates in accordance with 
Sec. 226.17(c)(2) and labelled as such. To illustrate:
    i. If disclosures are made in a regular transaction on July 1, the 
transaction is consummated on July 15, and the actual annual percentage 
rate varies by more than \1/8\ of 1 percentage point from the disclosed 
annual percentage rate, the creditor must either redisclose the changed 
terms or furnish a complete set of new disclosures before consummation. 
Redisclosure is required even if the disclosures made on July 1 are 
based on estimates and marked as such;
    ii. If disclosures are made on July 1, the transaction is 
consummated on July 15, and the finance charge increased by $35 but the 
disclosed annual percentage rate is within the permitted tolerance, the 
creditor must at least redisclose the changed terms that were not marked 
as estimates. (See Sec. 226.18(d) and footnote 41 of this part); and
    iii. If early disclosures are marked as estimates and the disclosed 
annual percentage rate is within tolerance at consummation, the creditor 
need not redisclose the changed terms (including the annual percentage 
rate).

    2. Variable rate. The addition of a variable rate feature to the 
credit terms, after early disclosures are given, requires new 
disclosures.
    3. Content of new disclosures. If redisclosure is required, the 
creditor has the option of either providing a complete set of new 
disclosures, or providing disclosures of only the terms that vary from 
those originally disclosed. (See the commentary to Sec. 226.19(a)(2).)
    4. Special rules. In residential mortgage transactions subject to 
Sec. 226.19, the creditor must redisclose if, between the delivery of 
the required early disclosures and consummation, the annual percentage 
rate changes by more than a stated tolerance. When subsequent events 
occur after consummation, new disclosures are required only if there is 
a refinancing or an assumption within the meaning of Sec. 226.20.
    17(g) Mail or telephone orders--delay in disclosures.
    1. Conditions for use. When the creditor receives a mail or 
telephone request for credit, the creditor may delay making the 
disclosures until the first payment is due if the following conditions 
are met:

     The credit request is initiated without face-to-face or 
direct telephone solicitation. (Creditors may, however, use the special 
rule when credit requests are solicited by mail.)
     The creditor has supplied the specified credit information 
about its credit terms either to the individual consumer or to the 
public generally. That information may be distributed through 
advertisements, catalogs, brochures, special mailers, or similar means.

    2. Insurance. The location requirements for the insurance 
disclosures under Sec. 226.18(n) permit them to appear apart from the 
other disclosures. Therefore, a creditor may mail an insurance 
authorization to the consumer and then prepare the other disclosures to 
reflect whether or not the authorization is completed by the consumer. 
Creditors may also disclose the insurance cost on a unit-cost basis, if 
the transaction meets the requirements of Sec. 226.17(g).
    17(h) Series of sales--delay in disclosures.
    1. Applicability. The creditor may delay the disclosures for 
individual credit sales in a series of such sales until the first 
payment is due on the current sale, assuming the 2 conditions in this 
paragraph are met. If those conditions are not met, the general timing 
rules in Sec. 266.17(b) apply.
    2. Basis of disclosures. Creditors structuring disclosures for a 
series of sales under Sec. 226.17(h) may compute the total sale price as 
either:

 The cash price for the sale plus that portion of the finance 
charge and other charges applicable to that sale; or
 The cash price for the sale, other charges applicable to the 
sale, and the total finance charge and outstanding principal.

    17(i) Interim student credit extensions.

[[Page 377]]

    1. Definition. Student credit plans involve extensions of credit for 
education purposes where the repayment amount and schedule are not known 
at the time credit is advanced. These plans include loans made under any 
student credit plan, whether government or private, where the repayment 
period does not begin immediately. (Certain student credit plans that 
meet this definition are exempt from Regulation Z. See Sec. 226.3(f).) 
Creditors in interim student credit extensions need not disclose the 
terms set forth in this paragraph at the time the credit is actually 
extended but must make complete disclosures at the time the creditor and 
consumer agree upon the repayment schedule for the total obligation. At 
that time, a new set of disclosures must be made of all applicable items 
under Sec. 226.18.
    2. Basis of disclosures. The disclosures given at the time of 
execution of the interim note should reflect two annual percentage 
rates, one for the interim period and one for the repayment period. The 
use of Sec. 226.17(i) in making disclosures does not, by itself, make 
those disclosures estimates. Any portion of the finance charge, such as 
statutory interest, that is attributable to the interim period and is 
paid by the student (either as a prepaid finance charge, periodically 
during the interim period, in one payment at the end of the interim 
period, or capitalized at the beginning of the repayment period) must be 
reflected in the interim annual percentage rate. Interest subsidies, 
such as payments made by either a state or the Federal government on an 
interim loan, must be excluded in computing the annual percentage rate 
on the interim obligation, when the consumer has no contingent liability 
for payment of those amounts. Any finance charges that are paid 
separately by the student at the outset or withheld from the proceeds of 
the loan are prepaid finance charges. An example of this type of charge 
is the loan guarantee fee. The sum of the prepaid finance charges is 
deducted from the loan proceeds to determine the amount financed and 
included in the calculation of the finance charge.
    3. Consolidation. Consolidation of the interim student credit 
extensions through a renewal note with a set repayment schedule is 
treated as a new transaction with disclosures made as they would be for 
a refinancing. Any unearned portion of the finance charge must be 
reflected in the new finance charge and annual percentage rate, and is 
not added to the new amount financed. In itemizing the amount financed 
under Sec. 226.18(c), the creditor may combine the principal balances 
remaining on the interim extensions at the time of consolidation and 
categorize them as the amount paid on the consumer's account.
    4. Approved student credit forms. See the commentary to appendix H 
regarding disclosure forms approved for use in certain student credit 
programs.

                               References

    Statute: Sections 121, 122, 124, and 128, and the Higher Education 
Act of 1965 (20 U.S.C. 1071) as amended by Pub. L. 97-35, August 13, 
1981.
    Other sections: Section 226.2 and appendix H.
    Previous regulation: Sections 226.6 and 226.8.
    1981 changes: With few exceptions, the disclosures must now appear 
apart from all other information, and may not be interspersed with that 
information. The disclosures must be based on the legal obligation 
between the parties, rather than any side agreement.
    The assumed maturity period for demand loans has been increased from 
6 months to 1 year. Any alternate maturity date must be stated in the 
legal obligation rather than inferred from the documents, in order to 
form a basis for disclosures.
    In multiple-advance transactions, a series of advances up to a 
certain amount and construction loans that may be permanently financed 
may be disclosed, at the creditor's option, as either a single 
transaction or several transactions. Appendix D is applicable only to 
multiple advances for the construction of a dwelling, whereas its 
predecessor, Interpretation Sec. 226.813, could be used for all 
multiple-advance transactions.
    If disclosures are made before the date of consummation, the 
creditor need not provide updated disclosures at consummation unless the 
annual percentage rate has changed beyond certain limits or a variable 
rate feature has been added.

                 Section 226.18--Content of Disclosures

    1. As applicable. The disclosures required by this section need be 
made only as applicable. Any disclosure not relevant to a particular 
transaction may be eliminated entirely. For example:

     In a loan transaction, the creditor may delete disclosure 
of the total sale price.
     In a credit sale requiring disclosure of the total sale 
price under Sec. 226.18(j), the creditor may delete any reference to a 
downpayment where no downpayment is involved.

    Where the amounts of several numerical disclosures are the same, the 
``as applicable'' language also permits creditors to combine the terms, 
so long as it is done in a clear and conspicuous manner. For example:

     In a transaction in which the amount financed equals the 
total of payments, the creditor may disclose ``amount financed/total of 
payments,'' together with descriptive language, followed by a single 
amount.
     However, if the terms are separated on the disclosure 
statement and separate space is provided for each amount, both 
disclosures

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must be completed, even though the same amount is entered in each space.

    2. Format. See the commentary to Sec. 226.17 and appendix H for a 
discussion of the format to be used in making these disclosures, as well 
as acceptable modifications.
    18(a) Creditor.
    1. Identification of creditor. The creditor making the disclosures 
must be identified. This disclosure may, at the creditor's option, 
appear apart from the other disclosures. Use of the creditor's name is 
sufficient, but the creditor may also include an address and/or 
telephone number. In transactions with multiple creditors, any one of 
them may make the disclosures; the one doing so must be identified.
    18(b) Amount financed.
    1. Disclosure required. The net amount of credit extended must be 
disclosed using the term amount financed and a descriptive explanation 
similar to the phrase in the regulation.
    2. Rebates and loan premiums. In a loan transaction, the creditor 
may offer a premium in the form of cash or merchandise to prospective 
borrowers. Similarly, in a credit sale transaction, a seller's or 
manufacturer's rebate may be offered to prospective purchasers of the 
creditor's goods or services. At the creditor's option, these amounts 
may be either reflected in the Truth in Lending disclosures or 
disregarded in the disclosures. If the creditor chooses to reflect them 
in the Sec. 226.18 disclosures, rather than disregard them, they may be 
taken into account in any manner as part of those disclosures.
    Paragraph 18(b)(1).
    1. Downpayments. A downpayment is defined in Sec. 226.2(a)(18) to 
include, at the creditor's option, certain deferred downpayments or 
pick-up payments. A deferred downpayment that meets the criteria set 
forth in the definition may be treated as part of the downpayment, at 
the creditor's option.

     Deferred downpayments that are not treated as part of the 
downpayment (either because they do not meet the definition or because 
the creditor simply chooses not to treat them as downpayments) are 
included in the amount financed.
     Deferred downpayments that are treated as part of the 
downpayment are not part of the amount financed under Sec. 226.18(b)(1).

    Paragraph 18(b)(2).
    1. Adding other amounts. Fees or other charges that are not part of 
the finance charge and that are financed rather than paid separately at 
consummation of the transaction are included in the amount financed. 
Typical examples are real estate settlement charges and premiums for 
voluntary credit life and disability insurance excluded from the finance 
charge under Sec. 226.4. This paragraph does not include any amounts 
already accounted for under Sec. 226.18(b)(1), such as taxes, tag and 
title fees, or the costs of accessories or service policies that the 
creditor includes in the cash price.
    Paragraph 18(b)(3).
    1. Prepaid finance charges. Prepaid finance charges that are paid 
separately in cash or by check should be deducted under 
Sec. 226.18(b)(3) in calculating the amount financed. To illustrate:
     A consumer applies for a loan of $2,500 with a $40 loan 
fee. The face amount of the note is $2,500 and the consumer pays the 
loan fee separately by cash or check at closing. The principal loan 
amount for purposes of Sec. 226.18(b)(1) is $2,500 and $40 should be 
deducted under Sec. 226.18(b(3), thereby yielding an amount financed of 
$2,460.
    In some instances, as when loan fees are financed by the creditor, 
finance charges are incorporated in the face amount of the note. 
Creditors have the option, when the charges are not add-on or discount 
charges, of determining a principal loan amount under Sec. 226.18(b)(1) 
that either includes or does not include the amount of the finance 
charges. (Thus the principal loan amount may, but need not, be 
determined to equal the face amount of the note.) When the finance 
charges are included in the principal loan amount, they should be 
deducted as prepaid finance charges under Sec. 226.18(b)(3). When the 
finance charges are not included in the principal loan amount, they 
should not be deducted under Sec. 226.18(b)(3). The following examples 
illustrate the application of Sec. 226.18(b) to this type of 
transaction. Each example assumes a loan request of $2,500 with a loan 
fee of $40; the creditor assesses the loan fee by increasing the face 
amount of the note to $2,540.
     If the creditor determines the principal loan amount under 
Sec. 226.18(b)(1) to be $2,540, it has included the loan fee in the 
principal loan amount and should deduct $40 as a prepaid finance charge 
under Sec. 226.18(b)(3), thereby obtaining an amount financed of $2,500.
     If the creditor determines the principal loan amount under 
Sec. 226.18(b)(1) to be $2,500, it has not included the loan fee in the 
principal loan amount and should not deduct any amount under 
Sec. 226.18(b)(3), thereby obtaining an amount financed of $2,500.
The same rules apply when the creditor does not increase the face amount 
of the note by the amount of the charge but collects the charge by 
withholding it from the amount advanced to the consumer. To illustrate, 
the following examples assume a loan request of $2,500 with a loan fee 
of $40; the creditor prepares a note for $2,500 and advances $2,460 to 
the consumer.
     If the creditor determines the principal loan amount under 
Sec. 226.18(b)(1) to be $2,500, it has included the loan fee in the 
principal loan amount and should deduct $40 as a prepaid finance charge 
under Sec. 226.18(b)(3), thereby obtaining an amount financed of $2,460.

[[Page 379]]

     If the creditor determines the principal loan amount under 
Sec. 226.18(b)(1) to be $2,460, it has not included the loan fee in the 
principal loan amount and should not deduct any amount under 
Sec. 226.18(b)(3), thereby obtaining an amount financed of $2,460.
Thus in the examples where the creditor derives the net amount of credit 
by determining a principal loan amount that does not include the amount 
of the finance charge, no subtraction is appropriate. Creditors should 
note, however, that although the charges are not subtracted as prepaid 
finance charges in those examples, they are nonetheless finance charges 
and must be treated as such.
    2. Add-on or discount charges. All finance charges must be deducted 
from the amount of credit in calculating the amount financed. If the 
principal loan amount reflects finance charges that meet the definition 
of a prepaid finance charge in Sec. 226.2, those charges are included in 
the Sec. 226.18(b)(1) amount and deducted under Sec. 226.18(b)(3). 
However, if the principal loan amount includes finance charges that do 
not meet the definition of a prepaid finance charge, the 
Sec. 226.18(b)(1) amount must exclude those finance charges. The 
following examples illustrate the application of Sec. 226.18(b) to these 
types of transactions. Each example assumes a loan request of $1000 for 
1 year, subject to a 6 percent precomputed interest rate, with a $10 
loan fee paid separately at consummation.

     The creditor assesses add-on interest of $60 which is added 
to the $1000 in loan proceeds for an obligation with a face amount of 
$1060. The principal for purposes of Sec. 226.18(b)(1) is $1000, no 
amounts are added under Sec. 226.18(b)(2), and the $10 loan fee is a 
prepaid finance charge to be deducted under Sec. 226.18(b)(3). The 
amount financed is $990.
     The creditor assesses discount interest of $60 and 
distributes $940 to the consumer, who is liable for an obligation with a 
face amount of $1000. The principal under Sec. 226.18(b)(1) is $940, 
which results in an amount financed of $930, after deduction of the $10 
prepaid finance charge under Sec. 226.18(b)(3).
     The creditor assesses $60 in discount interest by 
increasing the face amount of the obligation to $1060, with the consumer 
receiving $1000. The principal under Sec. 226.18(b)(1) is thus $1000 and 
the amount financed $990, after deducting the $10 prepaid finance charge 
under Sec. 226.18(b)(3).

    18(c) Itemization of amount financed.
    1. Disclosure required. The creditor has 2 alternatives in complying 
with Sec. 226.18(c):

     The creditor may inform the consumer, on the segregated 
disclosures, that a written itemization of the amount financed will be 
provided on request, furnishing the itemization only if the customer in 
fact requests it.
     The creditor may provide an itemization as a matter of 
course, without notifying the consumer of the right to receive it or 
waiting for a request.

    Whether given as a matter of course or only on request, the 
itemization must be provided at the same time as the other disclosures 
required by Sec. 226.18, although separate from those disclosures.
    2. Additional information. Section 226.18(c) establishes only a 
minimum standard for the material to be included in the itemization of 
the amount financed. Creditors have considerable flexibility in revising 
or supplementing the information listed in Sec. 226.18(c) and shown in 
model form H-3, although no changes are required. The creditor may, for 
example, do one or more of the following:

     Include amounts that reflect payments not part of the 
amount financed. For example, escrow items and certain insurance 
premiums may be included, as discussed in the commentary to 
Sec. 226.18(g).
     Organize the categories in any order. For example, the 
creditor may rearrange the terms in a mathematical progression that 
depicts the arithmetic relationship of the terms.
     Add categories. For example, in a credit sale, the creditor 
may include the cash price and the downpayment.
     Further itemize each category. For example, the amount paid 
directly to the consumer may be subdivided into the amount given by 
check and the amount credited to the consumer's savings account.
     Label categories with different language from that shown in 
Sec. 226.18(c). For example, an amount paid on the consumer's account 
may be revised to specifically identify the account as ``your auto loan 
with us.''
     Delete, leave blank, mark ``N/A'' or otherwise note 
inapplicable categories in the itemization. For example, in a credit 
sale with no prepaid finance charges or amounts paid to others, the 
amount financed may consist of only the cash price less downpayment. In 
this case, the itemization may be composed of only a single category and 
all other categories may be eliminated.

    3. Amounts appropriate to more than one category. When an amount may 
appropriately be placed in any of several categories and the creditor 
does not wish to revise the categories shown in Sec. 226.18(c), the 
creditor has considerable flexibility in determining where to show the 
amount. For example:

     In a credit sale, the portion of the purchase price being 
financed by the creditor may be viewed as either an amount paid to the 
consumer or an amount paid on the consumer's account.

    4. RESPA transactions. The Real Estate Settlement Procedures Act 
(RESPA) requires creditors to provide good faith estimates of closing 
costs. Transactions subject to

[[Page 380]]

RESPA are exempt from the requirements of Sec. 226.18(c), when the 
creditor complies with the good faith estimates requirement of RESPA. 
The itemization of the amount financed need not be given, even though 
the content and timing of the good faith estimates under RESPA differ 
from the Sec. 226.18(c) requirement.
    Paragraph 18(c)(1)(i).
    1. Amounts paid to consumer. This encompasses funds given to the 
consumer in the form of cash or a check, including joint proceeds 
checks, as well as funds placed in an asset account. It may include 
money in an interest-bearing account even if that amount is considered a 
required deposit under Sec. 226.18(r). For example, in a transaction 
with total loan proceeds of $500, the consumer receives a check for $300 
and $200 is required by the creditor to be put into an interest-bearing 
account. Whether or not the $200 is a required deposit, it is part of 
the amount financed. At the creditor's option, it may be broken out and 
labeled in the itemization of the amount financed.
    Paragraph 18(c)(1)(ii).
    1. Amounts credited to consumer's account. The term consumer's 
account refers to an account in the nature of a debt with that creditor. 
It may include, for example, an unpaid balance on a prior loan, a credit 
sale balance or other amounts owing to that creditor. It does not 
include asset accounts of the consumer such as savings or checking 
accounts.
    Paragraph 18(c)(1)(iii).
    1. Amounts paid to others. This includes, for example, tag and title 
fees; amounts paid to insurance companies for insurance premiums; 
security interest fees, and amounts paid to credit bureaus, appraisers 
or public officials. When several types of insurance premiums are 
financed, they may, at the creditor's option, be combined and listed in 
one sum, labeled insurance or similar term. This includes, but is not 
limited to, different types of insurance premiums paid to 1 company and 
different types of insurance premiums paid to different companies. 
Except for insurance companies and other categories noted in footnote 
40, third parties must be identified by name.
    2. Charges added to amounts paid to others. A sum is sometimes added 
to the amount of a fee charged to a consumer for a service provided by a 
third party (such as for an extended warranty or a service contract) 
that is payable in the same amount in comparable cash and credit 
transactions. In the credit transaction, the amount is retained by the 
creditor. Given the flexibility permitted in meeting the requirements of 
the amount financed itemization (see the commentary to Sec. 226.18(c)), 
the creditor in such cases may reflect that the creditor has retained a 
portion of the amount paid to others. For example, the creditor could 
add to the category ``amount paid to others'' language such as ``(we may 
be retaining a portion of this amount).''
    Paragraph 18(c)(1)(iv).
    1. Prepaid finance charge. Prepaid finance charges that are deducted 
under Sec. 226.18(b)(3) must be disclosed under this section. The 
prepaid finance charges must be shown as a total amount but may, at the 
creditor's option, also be further itemized and described. All amounts 
must be reflected in this total, even if portions of the prepaid finance 
charge are also reflected elsewhere. For example, if at consummation the 
creditor collects interim interest of $30 and a credit report fee of 
$10, a total prepaid finance charge of $40 must be shown. At the 
creditor's option, the credit report fee paid to a third party may also 
be shown elsewhere as an amount included in Sec. 226.18(c)(1)(iii). The 
creditor may also further describe the 2 components of the prepaid 
finance charge, although no itemization of this element is required by 
Sec. 226.18(c)(1)(iv).
    2. Prepaid mortgage insurance premiums. RESPA requires creditors to 
give consumers a settlement statement disclosing the costs associated 
with mortgage loan transactions. Included on the settlement statement 
are mortgage insurance premiums collected at settlement, which are 
prepaid finance charges. In calculating the total amount of prepaid 
finance charges, creditors should use the amount for mortgage insurance 
listed on the line for mortgage insurance on the settlement statement 
(line 1002 on HUD-1 or HUD 1-A), without adjustment, even if the actual 
amount collected at settlement may vary because of RESPA's escrow 
accounting rules. Figures for mortgage insurance disclosed in 
conformance with RESPA shall be deemed to be accurate for purposes of 
Regulation Z.
    18(d) Finance charge.
    1. Disclosure required. The creditor must disclose the finance 
charge as a dollar amount, using the term finance charge, and must 
include a brief description similar to that in Sec. 226.18(d). The 
creditor may, but need not, further modify the descriptor for variable 
rate transactions with a phrase such as which is subject to change. The 
finance charge must be shown on the disclosures only as a total amount; 
the elements of the finance charge must not be itemized in the 
segregated disclosures, although the regulation does not prohibit their 
itemization elsewhere.
    2. [Reserved]
    18(e) Annual percentage rate.
    1. Disclosure required. The creditor must disclose the cost of the 
credit as an annual rate, using the term annual percentage rate, plus a 
brief descriptive phrase comparable to that used in Sec. 226.18(e). For 
variable rate transactions, the descriptor may be further

[[Page 381]]

modified with a phrase such as which is subject to change. Under 
Sec. 226.17(a), the terms annual percentage rate and finance charge must 
be more conspicuous than the other required disclosures.
    2. Exception. Footnote 42 provides an exception for certain 
transactions in which no annual percentage rate disclosure is required.
    18(f) Variable rate.
    1. Coverage. The requirements of Sec. 226.18(f) apply to all 
transactions in which the terms of the legal obligation allow the 
creditor to increase the rate originally disclosed to the consumer. It 
includes not only increases in the interest rate but also increases in 
other components, such as the rate of required credit life insurance. 
The provisions, however, do not apply to increases resulting from 
delinquency (including late payment), default, assumption, acceleration 
or transfer of the collateral. Section 226.18(f)(1) applies to variable-
rate transactions that are not secured by the consumer's principal 
dwelling and to those that are secured by the principal dwelling but 
have a term of one year or less. Section 226.18(f)(2) applies to 
variable-rate transactions that are secured by the consumer's principal 
dwelling and have a term greater than one year. Moreover, transactions 
subject to Sec. 226.18(f)(2) are subject to the special early disclosure 
requirements of Sec. 226.19(b). (However, ``shared-equity'' or ``shared-
appreciation'' mortgages are subject to the disclosure requirements of 
Sec. 226.18(f)(1) and not to the requirements of Secs. 226.18(f)(2) and 
226.19(b) regardless of the general coverage of those sections.) 
Creditors are permitted under footnote 43 to substitute in any variable-
rate transaction the disclosures required under Sec. 226.19(b) for those 
disclosures ordinarily required under 226.18(f)(1). Creditors who 
provide variable-rate disclosures under Sec. 226.19(b) must comply with 
all of the requirements of that section, including the timing of 
disclosures, and must also provide the disclosures required under 
Sec. 226.18(f)(2). Creditors utilizing footnote 43 may, but need not, 
also provide disclosures pursuant to Sec. 226.20(c). (Substitution of 
disclosures under Sec. 226.18(f)(1) in transactions subject to 
Sec. 226.19(b) is not permitted under the footnote.)
    Paragraph 18(f)(1).
    1. Terms used in disclosure. In describing the variable rate 
feature, the creditor need not use any prescribed terminology. For 
example, limitations and hypothetical examples may be described in terms 
of interest rates rather than annual percentage rates. The model forms 
in appendix H provide examples of ways in which the variable rate 
disclosures may be made.
    2. Conversion feature. In variable-rate transactions with an option 
permitting consumers to convert to a fixed-rate transaction, the 
conversion option is a variable-rate feature that must be disclosed. In 
making disclosures under Sec. 226.18(f)(1), creditors should disclose 
the fact that the rate may increase upon conversion; identify the index 
or formula used to set the fixed rate; and state any limitations on and 
effects of an increase resulting from conversion that differ from other 
variable-rate features. Because Sec. 226.18(f)(1)(iv) requires only one 
hypothetical example (such as an example of the effect on payments 
resulting from changes in the index), a second hypothetical example need 
not be given.
    Paragraph 18(f)(1)(i).
    1. Circumstances. The circumstances under which the rate may 
increase include identification of any index to which the rate is tied, 
as well as any conditions or events on which the increase is contingent.

     When no specific index is used, any identifiable factors 
used to determine whether to increase the rate must be disclosed.
     When the increase in the rate is purely discretionary, the 
fact that any increase is within the creditor's discretion must be 
disclosed.
     When the index is internally defined (for example, by that 
creditor's prime rate), the creditor may comply with this requirement by 
either a brief description of that index or a statement that any 
increase is in the discretion of the creditor. An externally defined 
index, however, must be identified.

    Paragraph 18(f)(1)(ii).
    1. Limitations. This includes any maximum imposed on the amount of 
an increase in the rate at any time, as well as any maximum on the total 
increase over the life of the transaction. When there are no 
limitations, the creditor may, but need not, disclose that fact. 
Limitations do not include legal limits in the nature of usury or rate 
ceilings under state or federal statutes or regulations. (See 
Sec. 226.30 for the rule requiring that a maximum interest rate be 
included in certain variable-rate transactions.)
    Paragraph 18(f)(1)(iii).
    1. Effects. Disclosure of the effect of an increase refers to an 
increase in the number or amount of payments or an increase in the final 
payment. In addition, the creditor may make a brief reference to 
negative amortization that may result from a rate increase. (See the 
commentary to Sec. 226.17(a)(1) regarding directly related information.) 
If the effect cannot be determined, the creditor must provide a 
statement of the possible effects. For example, if the exercise of the 
variable-rate feature may result in either more or larger payments, both 
possibilities must be noted.
    Paragraph 18(f)(1)(iv).
    1. Hypothetical example. The example may, at the creditor's option 
appear apart from the other disclosures. The creditor may provide either 
a standard example that illustrates the terms and conditions of that 
type

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of credit offered by that creditor or an example that directly reflects 
the terms and conditions of the particular transaction. In transactions 
with more than one variable-rate feature, only one hypothetical example 
need be provided. (See the commentary to section 226.17(a)(1) regarding 
disclosure of more than one hypothetical example as directly related 
information.)
    2. Hypothetical example not required. The creditor need not provide 
a hypothetical example in the following transactions with a variable-
rate feature:

 Demand obligations with no alternate maturity date.
 Interim student credit extensions.
 Multiple-advance construction loans disclosed pursuant to 
appendix D, Part I.
    Paragraph 18(f)(2).
    1. Disclosure required. In variable-rate transactions that have a 
term greater than one year and are secured by the consumer's principal 
dwelling, the creditor must give special early disclosures under 
Sec. 226.19(b) in addition to the later disclosures required under 
Sec. 226.18(f)(2). The disclosures under Sec. 226.18(f)(2) must state 
that the transaction has a variable-rate feature and that variable-rate 
disclosures have been provided earlier. (See the commentary to 
Sec. 226.17(a)(1) regarding the disclosure of certain directly related 
information in addition to the variable-rate disclosures required under 
Sec. 226.18(f)(2).)

    Paragraph 18(g) Payment schedule.
    1. Amounts included in repayment schedule. The repayment schedule 
should reflect all components of the finance charge, not merely the 
portion attributable to interest. A prepaid finance charge, however, 
should not be shown in the repayment schedule as a separate payment. The 
payments may include amounts beyond the amount financed and finance 
charge. For example, the disclosed payments may, at the creditor's 
option, reflect certain insurance premiums where the premiums are not 
part of either the amount financed or the finance charge, as well as 
real estate escrow amounts such as taxes added to the payment in mortage 
transactions.
    2. Deferred downpayments. As discussed in the commentary to 
Sec. 226.2(a)(18), deferred downpayments or pick-up payments that meet 
the conditions set forth in the definition of downpayment may be treated 
as part of the downpayment. Even if treated as a downpayment, that 
amount may nevertheless be disclosed as part of the payment schedule, at 
the creditor's option.
    3. Total number of payments. In disclosing the number of payments 
for transactions with more than one payment level, creditors may but 
need not disclose as a single figure the total number of payments for 
all levels. For example, in a transaction calling for 108 payments of 
$350, 240 payments of $335, and 12 payments of $330, the creditor need 
not state that there will be a total of 360 payments.
    Paragraph 18(g)(1).
    1. Demand obligations. In demand obligations with no alternate 
maturity date, the creditor has the option of disclosing only the due 
dates or periods of scheduled interest payments in the first year (for 
example, ``interest payable quarterly'' or ``interest due the first of 
each month''). The amounts of the interest payments need not be shown.
    Paragraph 18(g)(2).
    1. Abbreviated disclosure. The creditor may disclose an abbreviated 
payment schedule when the amount of each regularly scheduled payment 
(other than the first or last payment) includes an equal amount to be 
applied on principal and a finance charge computed by application of a 
rate to the decreasing unpaid balance. This option is also available 
when mortgage-guarantee insurance premiums, paid either monthly or 
annually, cause variations in the amount of the scheduled payments, 
reflecting the continual decrease or increase in the premium due. In 
addition, in transactions where payments vary because interest and 
principal are paid at different intervals, the two series of payments 
may be disclosed separately and the abbreviated payment schedule may be 
used for the interest payments. For example, in transactions with fixed 
quarterly principal payments and monthly interest payments based on the 
outstanding principal balance, the amount of the interest payments will 
change quarterly as principal declines. In such cases the creditor may 
treat the interest and principal payments as two separate series of 
payments, separately disclosing the number, amount, and due dates of 
principal payments, and, using the abbreviated payment schedule, the 
number, amount, and due dates of interest payments. This option may be 
used when interest and principal are scheduled to be paid on the same 
date of the month as well as on different dates of the month. The 
creditor using this alternative must disclose the dollar amount of the 
highest and lowest payments and make reference to the variation in 
payments.
    2. Combined payment schedule disclosures. Creditors may combine the 
option in this paragraph with the general payment schedule requirements 
in transactions where only a portion of the payment schedule meets the 
conditions of Sec. 226.18(g)(2). For example, in a graduated payment 
mortgage where payments rise sharply for 5 years and then decline over 
the next 25 years because of decreasing mortgage insurance premiums, the 
first 5 years would be disclosed under the general rule in 
Sec. 226.18(g) and the next 25 years according to the abbreviated 
schedule in Sec. 226.18(g)(2).
    3. Effect on other disclosures. Section 226.18(g)(2) applies only to 
the payment schedule disclosure. The actual amounts of

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payments must be taken into account in calculating and disclosing the 
finance charge and the annual percentage rate.
    Paragraph 18(h) Total of payments.
    1. Disclosure required. The total of payments must be disclosed 
using that term, along with a descriptive phrase similar to the one in 
the regulation. The descriptive explanation may be revised to reflect a 
variable rate feature with a brief phrase such as ``based on the current 
annual percentage rate which may change.''
    2. Calculation of total of payments. The total of payments is the 
sum of the payments disclosed under Sec. 226.18(g). For example, if the 
creditor disclosed a deferred portion of the downpayment as part of the 
payment schedule, that payment must be reflected in the total disclosed 
under this paragraph.
    3. Exception. Footnote 44 permits creditors to omit disclosure of 
the total of payments in single-payment transactions. This exception 
does not apply to a transaction calling for a single payment of 
principal combined with periodic payments of interest.
    4. Demand obligations. In demand obligations with no alternate 
maturity date, the creditor may omit disclosure of payment amounts under 
Sec. 226.18(g)(1). In those transactions, the creditor need not disclose 
the total of payments.
    Paragraph 18(i) Demand feature.
    1. Disclosure requirements. The disclosure requirements of this 
provision apply not only to transactions payable on demand from the 
outset, but also to transactions that are not payable on demand at the 
time of consummation but convert to a demand status after a stated 
period. In demand obligations in which the disclosures are based on an 
assumed maturity of 1 year under Sec. 226.17(c)(5), that fact must also 
be stated. Appendix H contains model clauses that may be used in making 
this disclosure.
    2. Covered demand features. The type of demand feature triggering 
the disclosures required by Sec. 226.18(i) includes only those demand 
features contemplated by the parties as part of the legal obligation. 
For example, this provision does not apply to transactions that covert 
to a demand status as a result of the consumer's default. A due-on-sale 
clause is not considered a demand feature. A creditor may, but need not, 
treat its contractual right to demand payment of a loan made to its 
executive officers as a demand feature to the extent that the 
contractual right is required by Regulation O (12 CFR 215.5) or other 
federal law.
    3. Relationship to payment schedule disclosures. As provided in 
Sec. 226.18(g)(1), in demand obligations with no alternate maturity 
date, the creditor need only disclose the due dates or payment periods 
of any scheduled interest payments for the first year. If the demand 
obligation states an alternate maturity, however, the disclosed payment 
schedule must reflect that stated term; the special rule in 
Sec. 226.18(g)(1) is not available.
    Paragraph 18(j) Total sale price.
    1. Disclosure required. In a credit sale transaction, the total sale 
price must be disclosed using that term, along with a descriptive 
explanation similar to the one in the regulation. For variable rate 
transactions, the descriptive phrase may, at the creditor's option, be 
modified to reflect the variable rate feature. For example, the 
descriptor may read: ``The total cost of your purchase on credit, which 
is subject to change, including your downpayment of * * *.'' The 
reference to a downpayment may be eliminated in transactions calling for 
no downpayment.
    2. Calculation of total sale price. The figure to be disclosed is 
the sum of the cash price, other charges added under Sec. 226.18(b)(2), 
and the finance charge disclosed under Sec. 226.18(d).
    Paragraph 18(k) Prepayment.
    1. Disclosure required. The creditor must give a definitive 
statement of whether or not a penalty will be imposed or a rebate will 
be given.

     The fact that no penalty will be imposed may not simply be 
inferred from the absence of a penalty disclosure; the creditor must 
indicate that prepayment will not result in a penalty.
     If a penalty or refund is possible for one type of 
prepayment, even though not for all, a positive disclosure is required. 
This applies to any type of prepayment, whether voluntary or involuntary 
as in the case of prepayments resulting from acceleration.
     Any difference in rebate or penalty policy, depending on 
whether prepayment is voluntary or not, must not be disclosed with the 
segregated disclosures.

    2. Rebate-penalty disclosure. A single transaction may involve both 
a precomputed finance charge and a finance charge computed by 
application of a rate to the unpaid balance (for example, mortgages with 
mortgage-guarantee insurance). In these cases, disclosures about both 
prepayment rebates and penalties are required. Sample form H-15 in 
appendix H illustrates a mortgage transaction in which both rebate and 
penalty disclosures are necessary.
    3. Prepaid finance charge. The existence of a prepaid finance charge 
in a transaction does not, by itself, require a disclosure under 
Sec. 226.18(k). A prepaid finance charge is not considered a penalty 
under Sec. 226.18(k)(1), nor does it require a disclosure under 
Sec. 226.18(k)(2). At its option, however, a creditor may consider a 
prepaid finance charge to be under Sec. 226.18(k)(2). If a disclosure is 
made under Sec. 226.18(k)(2) with respect to a prepaid finance charge or 
other finance charge, the creditor may further identify that finance 
charge. For example, the disclosure may state that the borrower ``will 
not be entitled to a refund of the prepaid finance charge'' or

[[Page 384]]

some other term that describes the finance charge.
    Paragraph 18(k)(1).
    1. Penalty. This applies only to those transactions in which the 
interest calculation takes account of all scheduled reductions in 
principal, as well as transactions in which interest calculations are 
made daily. The term penalty as used here encompasses only those charges 
that are assessed strictly because of the prepayment in full of a 
simple-interest obligation, as an addition to all other amounts. Items 
which are penalties include, for example:
      Interest charges for any period after prepayment in full 
is made. (See the commentary to Sec. 226.17(a)(1) regarding disclosure 
of interest charges assessed for periods after prepayment in full as 
directly related information.)
      A minimum finance charge in a simple-interest transaction. 
(See the commentary to Sec. 226.17(a)(1) regarding the disclosure of a 
minimum finance charge as directly related information.) Items which are 
not penalties include, for example:
      Loan guarantee fees
      Interim interest on a student loan
    Paragraph 18(k)(2).
    1. Rebate of finance charge. This applies to any finance charges 
that do not take account of each reduction in the principal balance of 
an obligation. This category includes, for example:

 Precomputed finance charges such as add-on charges.
 Charges that take account of some but not all reductions in 
principal, such as mortgage guarantee insurance assessed on the basis of 
an annual declining balance, when the principal is reduced on a monthly 
basis.

No description of the method of computing earned or unearned finance 
charges is required or permitted as part of the segregated disclosures 
under this section.
    Paragraph 18(l) Late payment.
    1. Definition. This paragraph requires a disclosure only if charges 
are added to individual delinquent installments by a creditor who 
otherwise considers the transaction ongoing on its original terms. Late 
payment charges do not include:

     The right of acceleration.
     Fees imposed for actual collection costs, such as 
repossession charges or attorney's fees.
     Deferral and extension charges.
     The continued accrual of simple interest at the contract 
rate after the payment due date. However, an increase in the interest 
rate is a late payment charge to the extent of the increase.

    2. Content of disclosure. Many state laws authorize the calculation 
of late charges on the basis of either a percentage or a specified 
dollar amount, and permit imposition of the lesser or greater of the 2 
charges. The disclosure made under Sec. 226.18(l) may reflect this 
alternative. For example, stating that the charge in the event of a late 
payment is 5% of the late amount, not to exceed $5.00, is sufficient. 
Many creditors also permit a grace period during which no late charge 
will be assessed; this fact may be disclosed as directly related 
information. (See the commentary to Sec. 226.17(a).)
    Paragraph 18(m) Security interest.
    1. Purchase money transactions. When the collateral is the item 
purchased as part of, or with the proceeds of, the credit transaction, 
section 226.18(m) requires only a general identification such as ``the 
property purchased in this transaction.'' However, the creditor may 
identify the property by item or type instead of identifying it more 
generally with a phrase such as ``the property purchased in this 
transaction.'' For example, a creditor may identify collateral as ``a 
motor vehicle,'' or as ``the property purchased in this transaction.'' 
Any transaction in which the credit is being used to purchase the 
collateral is considered a purchase money transaction and the 
abbreviated identification may be used, whether the obligation is 
treated as a loan or a credit sale.
    2. Nonpurchase money transactions. In nonpurchase money 
transactions, the property subject to the security interest must be 
identified by item or type. This disclosure is satisfied by a general 
disclosure of the category of property subject to the security interest, 
such as ``motor vehicles,'' ``securities,'' ``certain household items,'' 
or ``household goods.'' (Creditors should be aware, however, that the 
Federal credit practices rules, as well as some state laws, prohibit 
certain security interests in household goods.) At the creditor's 
option, however, a more precise identification of the property or goods 
may be provided.
    3. Mixed collateral. In some transactions in which the credit is 
used to purchase the collateral, the creditor may also take other 
property of the consumer as security. In those cases, a combined 
disclosure must be provided, consisting of an identification of the 
purchase money collateral consistent with comment 18(m)-1 and a specific 
identification of the other collateral consistent with comment 18(m)-2.
    4. After-acquired property. An after-acquired property clause is not 
a security interest to be disclosed under Sec. 226.18(m).
    5. Spreader clause. The fact that collateral for pre-existing credit 
with the institution is being used to secure the present obligation 
constitutes a security interest and must be disclosed. (Such security 
interests may be known as ``spreader'' or ``dragnet'' clauses, or as 
``cross-collateralization'' clauses.) A specific identification of that 
collateral is unnecessary but a reminder of the interest

[[Page 385]]

arising from the prior indebtedness is required. The disclosure may be 
made by using language such as ``collateral securing other loans with us 
may also secure this loan.'' At the creditor's option, a more specific 
description of the property involved may be given.
    6. Terms used in disclosure. No specified terminology is required in 
disclosing a security interest. Although the disclosure may, at the 
creditor's option, use the term security interest, the creditor may 
designate its interest by using, for example, pledge, lien, or mortgage.
    7. Collateral from third party. In certain transactions, the 
consumer's obligation may be secured by collateral belonging to a third 
party. For example, a loan to a student may be secured by an interest in 
the property of the student's parents. In such cases, the security 
interest is taken in connection with the transaction and must be 
disclosed, even though the property encumbered is owned by someone other 
than the consumer.
    Paragraph 18(n) Insurance.
    1. Location. This disclosure may, at the creditor's option, appear 
apart from the other disclosures. It may appear with any other 
information, including the amount financed itemization, any information 
prescribed by state law, or other supplementary material. When this 
information is disclosed with the other segregated disclosures, however, 
no additional explanatory material may be included.
    Paragraph 18(o) Certain security interest charges.
    1. Format. No special format is required for these disclosures; 
under Sec. 226.4(e), taxes and fees paid to government officials with 
respect to a security interest may be aggregated, or may be broken down 
by individual charge. For example, the disclosure could be labelled 
``filing fees and taxes'' and all funds disbursed for such purposes may 
be aggregated in a single disclosure. This disclosure may appear, at the 
creditor's option, apart from the other required disclosures. The 
inclusion of this information on a statement required under the Real 
Estate Settlement Procedures Act is sufficient disclosure for purposes 
of Truth in Lending.
    Paragraph 18(p) Contract reference.
    1. Content. Creditors may substitute, for the phrase ``appropriate 
contract document,'' a reference to specific transaction documents in 
which the additional information is found, such as ``promissory note'' 
or ``retail installment sale contract.'' A creditor may, at its option, 
delete inapplicable items in the contract reference, as for example when 
the contract documents contain no information regarding the right of 
acceleration.
    Paragraph 18(q) Assumption policy.
    1. Policy statement. In many mortgages, the creditor cannot 
determine, at the time disclosure must be made, whether a loan may be 
assumable at a future date on its original terms. For example, the 
assumption clause commonly used in mortgages sold to the Federal 
National Mortgage Association and the Federal Home Loan Mortgage 
Corporation conditions an assumption on a variety of factors such as the 
creditworthiness of the subsequent borrower, the potential for 
impairment of the lender's security, and execution of an assumption 
agreement by the subsequent borrower. In cases where uncertainty exists 
as to the future assumability of a mortgage, the disclosure under 
Sec. 226.18(q) should reflect that fact. In making disclosures in such 
cases, the creditor may use phrases such as ``subject to conditions,'' 
``under certain circumstances,'' or ``depending on future conditions.'' 
The creditor may provide a brief reference to more specific criteria 
such as a due-on-sale clause, although a complete explanation of all 
conditions is not appropriate. For example, the disclosure may state, 
``Someone buying your home may be allowed to assume the mortgage on its 
original terms, subject to certain conditions, such as payment of an 
assumption fee.'' See comment 17(a)(1)-5 for an example for a reference 
to a due-on-sale clause.
    2. Original terms. The phrase original terms for purposes of 
Sec. 226.18(q) does not preclude the imposition of an assumption fee, 
but a modification of the basic credit agreement, such as a change in 
the contract interest rate, represents different terms.
    Paragraph 18(r) Required deposit.
    1. Disclosure required. The creditor must inform the consumer of the 
existence of a required deposit. (Appendix H provides a model clause 
that may be used in making that disclosure.) Footnote 45 describes 3 
types of deposits that need not be considered required deposits. Use of 
the phrase ``need not'' permits creditors to include the disclosure even 
in cases where there is doubt as to whether the deposit constitutes a 
required deposit.
    2. Pledged account mortgages. In these transactions, a consumer 
pledges as collateral funds that the consumer deposits in an account 
held by the creditor. The creditor withdraws sums from that account to 
supplement the consumer's periodic payments. Creditors may treat these 
pledged accounts as required deposits or they may treat them as consumer 
buydowns in accordance with the commentary to Sec. 226.17(c)(1).
    3. Escrow accounts. The escrow exception in footnote 45 applies, for 
example, to accounts for such items as maintenance fees, repairs, or 
improvements, whether in a realty or a nonrealty transaction. (See the 
commentary to Sec. 226.17(c)(1) regarding the use of escrow accounts in 
consumer buydown transactions.)
    4. Interest-bearing accounts. When a deposit earns at least 5 
percent interest per year, no disclosure is required under 
Sec. 226.18(r). This

[[Page 386]]

exception applies whether the deposit is held by the creditor or by a 
third party.
    5. Morris Plan transactions. A deposit under a Morris Plan, in which 
a deposit account is created for the sole purpose of accumulating 
payments and this is applied to satisfy entirely the consumer's 
obligation in the transaction, is not a required deposit.
    6. Examples of amounts excluded. The following are among the types 
of deposits that need not be treated as required deposits:

     Requirement that a borrower be a customer or a member even 
if that involves a fee or a minimum balance.
     Required property insurance escrow on a mobile home 
transaction.
     Refund of interest when the obligation is paid in full.
     Deposits that are immediately available to the consumer.
     Funds deposited with the creditor to be disbursed (for 
example, for construction) before the loan proceeds are advanced.
     Escrow of condominium fees.
     Escrow of loan proceeds to be released when the repairs are 
completed.

                               References

    Statute: Section 128, the Garn-St Germain Depository Institutions 
Act of 1982 (Pub. L. 97-320) and the Real Estate Settlement Procedures 
Act (12 U.S.C. 2602).
    Other sections: Sections 226.2, 226.17, and appendix H.
    Other regulations: 12 CFR 545.6-2(a) and 12 CFR Part 29.
    Previous regulation: Sections 226.4 and 226.8.
    1981 changes: Five of the required disclosures must be explained to 
the consumer in a manner similar to the descriptive phrases shown in the 
regulation. A written itemization of the amount financed need not be 
provided unless the consumer requests it. The finance charge must be 
provided in all transactions, including real estate transactions, but 
must be shown only as a total amount. The disclosed finance charge is 
considered accurate if it is within a specified range.
    The variable rate hypothetical is required in all variable rate 
transactions and may be either general or transaction-specific. The 
penalty and rebate disclosures in the event of prepayment have been 
modified and combined. The requirement of an explanation of how the 
rebates or penalties are computed has been eliminated. The late payment 
disclosure has also been narrowed to include only charges imposed before 
maturity for late payments.
    The information required in the security interest disclosure has 
been decreased by the deletion of the type of security interest and a 
reduction in the property description requirement. The disclosure of the 
required deposit is limited to a statement that the annual percentage 
rate does not reflect the required deposit; the presence of a required 
deposit has no effect on the annual percentage rate.
    Two disclosure requirements have been added: A reference to the 
contract documents for additional information and, in a residential 
mortgage transaction, a statement of the creditor's assumption policy.

     Section 226.19--Certain Residential Mortgage and Variable-Rate 
                              Transactions

    Paragraph 19(a)(1) Time of disclosure.
    1. Coverage. This section requires early disclosure of credit terms 
in residential mortgage transactions that are also subject to the Real 
Estate Settlement Procedures Act (RESPA) and its implementing Regulation 
X, administered by the Department of Housing and Urban Development 
(HUD). To be covered by this section, a transaction must be both a 
residential mortgage transaction under Sec. 226.2(a) and a federally 
related mortgage loan under RESPA. ``Federally related mortgage loan'' 
is defined under RESPA (12 USC 2602) and Regulation X (24 CFR 
3500.5(b)), and is subject to any interpretations by HUD.
    2. Timing and use of estimates. Truth in Lending disclosures must be 
given (a) before consummation or (b) within three business days after 
the creditor receives the consumer's written application, whichever is 
earlier. The three-day period for disclosing credit terms coincides with 
the time period within which creditors subject to RESPA must provide 
good faith estimates of settlement costs. If the creditor does not know 
the precise credit terms, the creditor must base the disclosures on the 
best information reasonably available and indicate that the disclosures 
are estimates under Sec. 226.17(c)(2). If many of the disclosures are 
estimates, the creditor may include a statement to that effect (such as 
``all numerical disclosures except the late-payment disclosure are 
estimates'') instead of separately labelling each estimate. In the 
alternative, the creditor may label as an estimate only the items 
primarily affected by unknown information. (See the Commentary to 
Sec. 226.17(c)(2).) The creditor may provide explanatory material 
concerning the estimates and the contingencies that may affect the 
actual terms, in accordance with the commentary to Sec. 226.17(a)(1).
    3. Written application. Creditors may rely on RESPA and Regulation X 
(including any interpretations issued by HUD) in deciding whether a 
``written application'' has been received. In general, Regulation X 
requires disclosures ``to every person from whom the Lender receives or 
for whom it prepares a written application on an application form or 
forms normally used by the Lender for a Federally Related Mortgage 
Loan'' (24 CFR 3500.6(a)). An application is received when it

[[Page 387]]

reaches the creditor in any of the ways applications are normally 
transmitted--by mail, hand delivery, or through an intermediary agent or 
broker. (See comment 19(b)-3 for guidance in determining whether or not 
the transaction involves an intermediary agent or broker.) If an 
application reaches the creditor through an intermediary agent or 
broker, the application is received when it reaches the creditor, rather 
than when it reaches the agent or broker.
    4. Exceptions. The creditor may determine within the 3-day period 
that the application will not or cannot be approved on the terms 
requested, as, for example, when a consumer applies for a type or amount 
of credit that the creditor does not offer, or the consumer's 
application cannot be approved for some other reason. In that case, the 
creditor need not make the disclosures under this section. If the 
creditor fails to provide early disclosures and the transaction is later 
consummated on the original terms, the creditor will be in violation of 
this provision. If, however, the consumer amends the application because 
of the creditor's unwillingness to approve it on its original terms, no 
violation occurs for not providing disclosures based on the original 
terms. But the amended application is a new application subject to this 
section.
    5. Itemization of amount financed. In many residential mortgage 
transactions, the itemization of the amount financed required by 
Sec. 226.18(c) will contain items, such as origination fees or points, 
that also must be disclosed as part of the good faith estimates of 
settlement costs required under RESPA. Creditors furnishing the RESPA 
good faith estimates need not give consumers any itemization of the 
amount financed, either with the disclosures provided within 3 days 
after application or with the disclosures given at consummation or 
settlement.
    Paragraph 19(a)(2) Redisclosure required.
    1. Conditions for redisclosure. Creditors must make new disclosures 
if the annual percentage rate at consummation differs from the estimate 
originally disclosed by more than \1/8\ of 1 percentage point in regular 
transactions or \1/4\ of 1 percentage point in irregular transactions, 
as defined in Sec. 226.22. The creditor must also redisclose if a 
variable rate feature is added to the credit terms after the original 
disclosures have been made. The creditor has the option of redisclosing 
information under other circumstances, if it wishes to do so.
    2. Content of new disclosures. If redisclosure is required, the 
creditor may provide a complete set of new disclosures, or may 
redisclose only the terms that vary from those originally disclosed. If 
the creditor chooses to provide a complete set of new disclosures, the 
creditor may but need not highlight the new terms, provided that the 
disclosures comply with the format requirements of Sec. 226.17(a). If 
the creditor chooses to disclose only the new terms, all the new terms 
must be disclosed. For example, a different annual percentage rate will 
almost always produce a different finance charge, and often a new 
schedule of payments; all of these changes would have to be disclosed. 
If, in addition, unrelated terms such as the amount financed or 
prepayment penalty vary from those originally disclosed, the accurate 
terms must be disclosed. However, no new disclosures are required if the 
only inaccuracies involve estimates other than the annual percentage 
rate, and no variable rate feature has been added.
    3. Timing. Redisclosures, when necessary, must be given no later 
than ``consummation or settlement.'' ``Consummation'' is defined in 
Sec. 226.2(a). ``Date of settlement'' is defined in Regulation X (24 CFR 
3500.2(a)) and is subject to any interpretations issued under RESPA and 
Regulation X.
    4. Basis of disclosures. In some cases, a creditor may delay 
redisclosure until settlement, which may be at a time later than 
consummation. If a creditor chooses to redisclose at settlement, 
disclosures may be based on the terms in effect at settlement, rather 
than at consummation. For example, in a variable-rate transaction, a 
creditor may choose to base disclosures on the terms in effect at 
settlement despite the general rule in the commentary to section 18(f) 
that variable-rate disclosures should be based on the terms in effect at 
consummation.
    19(b) Certain variable-rate transactions.
    1. Coverage. Section 226.19(b) applies to all closed-end variable-
rate transactions that are secured by the consumer's principal dwelling 
and have a term greater than one year. The requirements of this section 
apply not only to transactions financing the initial acquisition of the 
consumer's principal dewlling, but also to any other closed-end 
variable-rate transaction secured by the principal dwelling. Closed-end 
variable-rate transactions that are not secured by the principal 
dwelling, or are secured by the principal dwelling but have a term of 
one year or less, are subject to the disclosure requirements of 
Sec. 226.18(f)(1) rather than those of Sec. 226.19(b). (Furthermore, 
``shared-equity'' or ``shared-appreciation'' mortgages are subject to 
the disclosure requirements of Sec. 226.18(f)(1) rather than those of 
Sec. 226.19(b) regardless of the general coverage of those sections.) 
For purposes of this section, the term of a variable-rate demand loan is 
determined in accordance with the commentary to Sec. 226.17(c)(5).
    2. Timing. A creditor must give the disclosures required under this 
section at the time an application form is provided or before the 
consumer pays a non-refundable fee, whichever is earlier. In cases where 
a creditor receives a written application through an

[[Page 388]]

intermediary agent or broker, however, footnote 45b provides a 
substitute timing rule requiring the creditor to deliver the disclosures 
or place them in the mail not later than three business days after the 
creditor receives the consumer's written application. (See comment 
19(b)-3 for guidance in determining whether or not the transaction 
involves an intermediary agent or broker.) This three-day rule also 
applies where the creditor takes an application over the telephone. If, 
however, the consumer merely requests an application over the telephone, 
the creditor must include the early disclosures required under this 
section with the application that is sent to the consumer. In cases 
where the creditor solicits applications through the mail, the creditor 
must also send the disclosures required under this section if an 
application form is included with the solicitation. In cases where an 
open-end credit account will convert to a closed-end transaction subject 
to this section under a written agreement with the consumer, disclosures 
under this section may be given at the time of conversion. (See the 
commentary to Sec. 226.20(a) for information on the timing requirements 
for Sec. 226.19(b)(2) disclosures when a variable-rate feature is later 
added to a transaction.)
    3. Intermediary agent or broker. In certain transactions involving 
an ``intermediary agent or broker,'' a creditor may delay providing 
disclosures. A creditor may not delay providing disclosures in 
transactions involving either a legal agent (as determined by applicable 
law) or any other third party that is not an ``intermediary agent or 
broker.'' In determining whether or not a transaction involves an 
``intermediary agent or broker'' the following factors should be 
considered:
     The number of applications submitted by the broker to the 
creditor as compared to the total number of applications received by the 
creditor. The greater the percentage of total loan applications 
submitted by the broker in any given period of time, the less likely it 
is that the broker would be considered an ``intermediary agent or 
broker'' of the creditor during the next period.
     The number of applications submitted by the broker to the 
creditor as compared to the total number of applications received by the 
broker. (This factor is applicable only if the creditor has such 
information.) The greater the percentage of total loan applications 
received by the broker that is submitted to a creditor in any given 
period of time, the less likely it is that the broker would be 
considered an ``intermediary agent or broker'' of the creditor during 
the next period.
     The amount of work (such as document preparation) the 
creditor expects to be done by the broker on an application based on the 
creditor's prior dealings with the broker and on the creditor's 
requirements for accepting applications, taking into consideration the 
customary practice of brokers in a particular area. The more work that 
the creditor expects the broker to do on an application, in excess of 
what is usually expected of a broker in that area, the less likely it is 
that the broker would be considered an ``intermediary agent or broker'' 
of the creditor.

    An example of an ``intermediary agent or broker'' is a broker who, 
customarily within a brief period of time after receiving an 
application, inquires about the credit terms of several creditors with 
whom the broker does business and submits the application to one of 
them. The broker is responsible for only a small percentage of the 
applications received by that creditor. During the time the broker has 
the application, it might request a credit report and an appraisal (or 
even prepare an entire loan package if customary in that particular 
area).
    4. Other variable-rate regulations. Transactions in which the 
creditor is required to comply with and has complied with the disclosure 
requirements of the variable-rate regulations of other Federal agencies 
are exempt from the requirements of Sec. 226.19(b), by virtue of 
footnote 45a, and are exempt from the requirements of Sec. 226.20(c), by 
virtue of footnote 45c. Those variable-rate regulations include the 
regulations issued by the Federal Home Loan Bank Board and those issued 
by the Department of Housing and Urban Development. The exception in 
footnotes 45a and 45c is also available to creditors that are required 
by state law to comply with the federal variable-rate regulations noted 
above and to creditors that are authorized by title VIII of the 
Depository Institutions Act of 1982 (12 U.S.C. 3801 et seq.) to make 
loans in accordance with those regulations. Creditors using this 
exception should comply with the timing requirements of those 
regulations rather than the timing requirements of Regulation Z in 
making the variable-rate disclosures.
    5. Examples of variable-rate transactions. The following 
transactions, if they have a term greater than one year and are secured 
by the consumer's principal dwelling, constitute variable-rate 
transactions subject to the disclosure requirements of Sec. 226.19(b).
     Renewable balloon-payment instruments where the creditor is 
both unconditionally obligated to renew the balloon-payment loan at the 
consumer's option (or is obligated to renew subject to conditions within 
the consumer's control) and has the option of increasing the interest 
rate at the time of renewal. (See comment 17(c)(1)-11 for a discussion 
of conditions within a consumer's control in connection with renewable 
balloon-payment loans.)
     Preferred-rate loans where the terms of the legal 
obligation provide that the initial underlying rate is fixed but will 
increase

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upon the occurrence of some event, such as an employee leaving the 
employ of the creditor, and the note reflects the preferred rate. The 
disclosures under Secs. 226.19(b)(1) and 226.19(b)(2)(v), (viii), (ix), 
(x) and (xiii) are not applicable to such loans.
     ``Price level adjusted mortgages'' or other indexed 
mortgages that have a fixed rate of interest but provide for periodic 
adjustments to payments and the loan balance to reflect changes in an 
index measuring prices or inflation. The disclosures under 
Sec. 226.19(b)(1) are not applicable to such loans, nor are the 
following provisions to the extent they relate to the determination of 
the interest rate by the addition of a margin, changes in the interest 
rate, or interest rate discounts: Section 226.19(b)(2) (i), (iii), (iv), 
(v), (vi), (vii), (viii), (ix), and (x). (See comments 20(c)-2 and 30-1 
regarding the inapplicability of variable-rate adjustment notices and 
interest rate limitations to price level adjusted or similar mortgages.)
Graduated-payment mortgages and step-rate transactions without a 
variable-rate feature are not considered variable-rate transactions.
    Paragraph 19(b)(1).
    1. Substitutes. Creditors who wish to use publications other than 
the Consumer Handbook on Adjustable Rate Mortgages must make a good 
faith determination that their brochures are suitable substitutes to the 
Consumer Handbook. A substitute is suitable if it is, at a minimum, 
comparable to the Consumer Handbook in substance and comprehensiveness. 
Creditors are permitted to provide more detailed information than is 
contained in the Consumer Handbook. In determining whether a 
construction loan that may be permanently financed by the same creditor 
is covered under this section, the creditor may treat the construction 
and the permanent phases as separate transactions with distinct terms to 
maturity or as a single combined transaction. For purposes of the 
disclosures required under section 226.18, the creditor may nevertheless 
treat the two phases either as separate transactions or as a single 
combined transaction in accordance with section 226.17(c)(6). Finally, 
in any assumption of a variable-rate transaction secured by the 
consumer's principal dwelling with a term greater than one year, 
disclosures need not be provided under sections 226.18(f)(2)(ii) or 
226.19(b).
    2. Applicability. The Consumer Handbook need not be given for 
variable-rate transactions subject to this section in which the 
underlying interest rate is fixed. (See comment 19(b)-4 for an example 
of a variable-rate transaction where the underlying interest rate is 
fixed.)
    Paragraph 19(b)(2).
    1. Disclosure for each variable-rate program. A creditor must 
provide disclosures to the consumer that fully describe each of the 
creditor's variable-rate loan programs in which the consumer expresses 
an interest. If a program is made available only to certain customers of 
an institution, a creditor need not provide disclosures for that program 
to other consumers who express a general interest in a creditor's ARM 
programs. Disclosures must be given at the time an application form is 
provided or before the consumer pays a nonrefundable fee, whichever is 
earlier. If program disclosures cannot be provided because a consumer 
expresses an interest in individually negotiating loan terms that are 
not generally offered, disclosures reflecting those terms may be 
provided as soon as reasonably possible after the terms have been 
decided upon, but not later than the time a non-refundable fee is paid. 
If a consumer who has received program disclosures subsequently 
expresses an interest in other available variable-rate programs subject 
to 226.19(b)(2), or the creditor and consumer decide on a program for 
which the consumer has not received disclosures, the creditor must 
provide appropriate disclosures as soon as reasonably possible. The 
creditor, of course, is permitted to give the consumer information about 
additional programs subject to Sec. 226.19(b) initially.
    2. Variable-rate loan program defined. If the identification, the 
presence or absence, or the exact value of a loan feature must be 
disclosed under this section, variable-rate loans that differ as to such 
features constitute separate loan programs.
    For example, separate loan programs would exist based on differences 
in any of the following loan features:
     The index or other formula used to calculate interest rate 
adjustments
     The rules relating to changes in the index value, interest 
rate, payments, and loan balance
     The presence or absence of, and the amount of, rate or 
payment caps
     The presence of a demand feature
     The possibility of negative amortization
     The possibility of interest rate carryover
     The frequency of interest rate and payment adjustments
     The presence of a discount feature. In addition, if a loan 
feature must be taken into account in preparing the disclosures required 
by Sec. 226.19(b)(2)(viii) and (x), variable-rate loans that differ as 
to that feature constitute separate programs under Sec. 226.19(b)(2). 
If, however, a representative value may be given for a loan feature or 
the feature need not be disclosed under Sec. 226.19(b)(2), variable-rate 
loans that differ as to such features do not constitute separate loan 
programs. For example, separate programs would not exist based on 
differences in the following loan features:
     The amount of a discount
     The amount of a margin

[[Page 390]]

    3. Form of program disclosures. A creditor may provide separate 
program disclosure forms for each ARM program it offers or a single 
disclosure form that describes multiple programs. A disclosure form may 
consist of more than one page. For example, a creditor may attach a 
separate page containing the historical payment example for a particular 
program. A disclosure form describing more than one program need not 
repeat information applicable to each program that is described. For 
example, a form describing multiple programs may disclose the 
information applicable to all of the programs in one place with the 
various program features (such as options permitting conversion to a 
fixed rate) disclosed separately. The form, however, must state if any 
program feature that is described is available only in conjunction with 
certain other program features. Both the separate and multiple program 
disclosures may illustrate more than one loan maturity or payment 
amortization--for example, by including multiple payment and loan 
balance columns in the historical payment example. Disclosures may be 
inserted or printed in the Consumer Handbook (or a suitable substitute) 
as long as they are identified as the creditor's loan program 
disclosures.
    4. As applicable. The disclosures required by this section need only 
be made as applicable. Any disclosure not relevant to a particular 
transaction may be eliminated. For example, if the transaction does not 
contain a demand feature, the disclosure required under 
Sec. 226.19(b)(2)(xi) need not be given. As used in this section, 
payment refers only to a payment based on the interest rate, loan 
balance and loan term, and does not refer to payment of other elements 
such as mortgage insurance premiums.
    5. Revisions. A creditor must revise the disclosures required under 
this section once a year as soon as reasonably possible after the new 
index value becomes available. Revisions to the disclosures also are 
required when the loan program changes.
    Paragraph 19(b)(2)(i).
    1. Change in interest rate, payment, or term. A creditor must 
disclose the fact that the terms of the legal obligation permit the 
creditor, after consummation of the transaction, to increase (or 
decrease) the interest rate, payment, or term of the loan initially 
disclosed to the consumer. For example, the disclosures for a variable-
rate program in which the interest rate and payment (but not loan term) 
can change might read, ``Your interest rate and payment can change 
yearly.'' In transactions where the term of the loan may change due to 
rate fluctuations, the creditor must state that fact.
    Paragraph 19(b)(2)(ii).
    1. Identification of index or formula. If a creditor ties interest 
rate changes to a particular index, this fact must be disclosed, along 
with a source of information about the index. For example, if a creditor 
uses the weekly average yield on U.S. Treasury Securities adjusted to a 
constant maturity as its index, the disclosure might read, ``Your index 
is the weekly average yield on U.S. Treasury Securities adjusted to a 
constant maturity of one year published weekly in the Wall Street 
Journal.'' If no particular index is used, the creditor must briefly 
describe the formula used to calculate interest rate changes.
    2. Changes at creditor's discretion. If interest rate changes are at 
the creditor's discretion, this fact must be disclosed. If an index is 
internally defined, such as by a creditor's prime rate, the creditor 
should either briefly describe that index or state that interest rate 
changes are at the creditor's discretion.
    Paragraph 19(b)(2)(iii).
    1. Determination of interest rate and payment. This provision 
requires an explanation of how the creditor will determine the 
consumer's interest rate and payment. In cases where a creditor bases 
its interest rate on a specific index and adjusts the index through the 
addition of a margin, for example, the disclosure might read, ``Your 
interest rate is based on the index plus a margin, and your payment will 
be based on the interest rate, loan balance, and remaining loan term.'' 
In transactions where paying the periodic payments will not fully 
amortize the outstanding balance at the end of the loan term and where 
the final payment will equal the periodic payment plus the remaining 
unpaid balance, the creditor must disclose this fact. For example, the 
disclosure might read, ``Your periodic payments will not fully amortize 
your loan and you will be required to make a single payment of the 
periodic payment plus the remaining unpaid balance at the end of the 
loan term.'' The creditor, however, need not reflect any irregular final 
payment in the historical example or in the disclosure of the initial 
and maximum rates and payments. If applicable, the creditor should also 
disclose that the rate and payment will be rounded.
    Paragraph 19(b)(2)(iv).
    1. Current margin value and interest rate. Because the disclosures 
can be prepared in advance, the interest rate and margin may be several 
months old when the disclosures are delivered. A statement, therefore, 
is required alerting consumers to the fact that they should inquire 
about the current margin value applied to the index and the current 
interest rate. For example, the disclosure might state, ``Ask us for our 
current interest rate and margin.''
    Paragraph 19(b)(2)(v).
    1. Discounted and premium interest rate. In some variable-rate 
transactions, creditors may set an initial interest rate that is not 
determined by the index or formula used to

[[Page 391]]

make later interest rate adjustments. Typically, this initial rate 
charged to consumers is lower than the rate would be if it were 
calculated using the index or formula. However, in some cases the 
initial rate may be higher. If the initial interest rate will be a 
discount or a premium rate, creditors must alert the consumer to this 
fact. For example, if a creditor discounted a consumer's initial rate, 
the disclosure might state, ``Your initial interest rate is not based on 
the index used to make later adjustments.'' (See the commentary to 
Sec. 226.17(c)(1) for a further discussion of discounted and premium 
variable-rate transactions.) In addition, the disclosure must suggest 
that consumers inquire about the amount that the program is currently 
discounted. For example, the disclosure might state, ``Ask us for the 
amount our adjustable rate mortgages are currently discounted.'' In a 
transaction with a consumer buydown or with a third-party buydown that 
will be incorporated in the legal obligation, the creditor should 
disclose the program as a discounted variable-rate transaction, but need 
not disclose additional information regarding the buydown in its program 
disclosures. (See the commentary to Sec. 226.19(b)(2)(viii) for a 
discussion of how to reflect the discount or premium in the historical 
example.)
    Paragraph 19(b)(2)(vi).
    1. Frequency. The frequency of interest rate and payment adjustments 
must be disclosed. If interest rate changes will be imposed more 
frequently or at different intervals than payment changes, a creditor 
must disclose the frequency and timing of both types of changes. For 
example, in a variable-rate transaction where interest rate changes are 
made monthly, but payment changes occur on an annual basis, this fact 
must be disclosed. In certain ARM transactions, the interval between 
loan closing and the initial adjustment is not known and may be 
different from the regular interval for adjustments. In such cases, the 
creditor may disclose the initial adjustment period as a range of the 
minimum and maximum amount of time from consummation or closing. For 
example, the creditor might state: ``The first adjustment to your 
interest rate and payment will occur no sooner than 6 months and no 
later than 18 months after closing. Subsequent adjustments may occur 
once each year after the first adjustment.'' (See comments 
19(b)(2)(viii)-7 and 19(b)(2)(x)-4 for guidance on other disclosures 
when this alternative disclosure rule is used.)
    Paragraph 19(b)(2)(vii).
    1. Rate and payment caps. The creditor must disclose limits on 
changes (increases or decreases) in the interest rate or payment. If an 
initial discount is not taken into account in applying overall or 
periodic rate limitations, that fact must be disclosed. If separate 
overall or periodic limitations apply to interest rate increases 
resulting from other events, such as the exercise of a fixed-rate 
conversion option or leaving the creditor's employ, those limitations 
must also be stated. Limitations do not include legal limits in the 
nature of usury or rate ceilings under state or Federal statutes or 
regulations. (See Sec. 226.30 for the rule requiring that a maximum 
interest rate be included in certain variable-rate transactions.) The 
creditor need not disclose each periodic or overall rate limitation that 
is currently available. As an alternative, the creditor may disclose the 
range of the lowest and highest periodic and overall rate limitations 
that may be applicable to the creditor's ARM transactions. For example, 
the creditor might state: ``The limitation on increases to your interest 
rate at each adjustment will be set at an amount in the following range: 
Between 1 and 2 percentage points at each adjustment. The limitation on 
increases to your interest rate over the term of the loan will be set at 
an amount in the following range: Between 4 and 7 percentage points 
above the initial interest rate.'' A creditor using this alternative 
rule must include a statement in its program disclosures suggesting that 
the consumer ask about the overall rate limitations currently offered 
for the creditor's ARM programs. (See comments 19(b)(2)(viii)-6 and 
19(b)(2)(x)-3 for an explanation of the additional requirements for a 
creditor using this alternative rule for disclosure of periodic and 
overall rate limitations.)
    2. Negative amortization and interest rate carryover. A creditor 
must disclose, where applicable, the possibility of negative 
amortization. For example, the disclosure might state, ``If any of your 
payments is not sufficient to cover the interest due, the difference 
will be added to your loan amount.'' Loans that provide for more than 
one way to trigger negative amortization are separate variable-rate 
programs requiring separate disclosures. (See the commentary to 
Sec. 226.19(b)(2) for a discussion on the definition of a variable-rate 
loan program and the format for disclosure.) If a consumer is given the 
option to cap monthly payments that may result in negative amortization, 
the creditor must fully disclose the rules relating to the option, 
including the effects of exercising the option (such as negative 
amortization will occur and the principal loan balance will increase); 
however, the disclosure in Sec. 226.19(b)(2)(viii) need not be provided.
    3. Conversion option. If a loan program permits consumers to convert 
their variable-rate loans to fixed-rate loans, the creditor must 
disclose that the interest rate may increase if the consumer converts 
the loan to a fixed-rate loan. The creditor must also disclose the rules 
relating to the conversion feature, such as the period during which the 
loan may be converted, that fees may be charged at conversion, and how 
the fixed rate will be determined. The creditor should

[[Page 392]]

identify any index or other measure or formula used to determine the 
fixed rate and state any margin to be added. In disclosing the period 
during which the loan may be converted and the margin, the creditor may 
use information applicable to the conversion feature during the six 
months preceding preparation of the disclosures and state that the 
information is representative of conversion features recently offered by 
the creditor. The information may be used until the program disclosures 
are otherwise revised. Although the rules relating to the conversion 
option must be disclosed, the effect of exercising the option should not 
be reflected elsewhere in the disclosures, such as in the historical 
example or in the calculation of the initial and maximum interest rate 
and payments.
    4. Preferred-rate loans. Section 226.19(b) applies to preferred-rate 
loans, where the rate will increase upon the occurrence of some event, 
such as an employee leaving the creditor's employ, whether or not the 
underlying rate is fixed or variable. In these transactions, the 
creditor must disclose the event that would allow the creditor to 
increase the rate such as that the rate may increase if the employee 
leaves the creditor's employ. The creditor must also disclose the rules 
relating to termination of the preferred rate, such as that fees may be 
charged when the rate is changed and how the new rate will be 
determined.
    Paragraph 19(b)(2)(viii).
    1. Index movement. This section requires a creditor to provide an 
historical example, based on a $10,000 loan amount originating in 1977, 
showing how interest rate changes implemented according to the terms of 
the loan program would have affected payments and the loan balance at 
the end of each year during a 15-year period. (In all cases, the 
creditor need only calculate the payments and loan balance for the term 
of the loan. For example, in a five-year loan, a creditor would show the 
payments and loan balance for the five-year term, from 1977 to 1981, 
with a zero loan balance reflected for 1981. For the remaining ten 
years, 1982-1991, the creditor need only show the remaining index 
values, margin and interest rate and must continue to reflect all 
significant loan program terms such as rate limitations affecting them.) 
Pursuant to this section, the creditor must provide a history of index 
values for the preceding 15 years. Initially, the disclosures would give 
the index values from 1977 to the present. Each year thereafter, the 
revised program disclosures should include an additional year's index 
value until 15 years of values are shown. If the values for an index 
have not been available for 15 years, a creditor need only go back as 
far as the values are available in giving a history and payment example. 
In all cases, only one index value per year need be shown. Thus, in 
transactions where interest rate adjustments are implemented more 
frequently than once per year, a creditor may assume that the interest 
rate and payment resulting from the index value chosen will stay in 
effect for the entire year for purposes of calculating the loan balance 
as of the end of the year and for reflecting other loan program terms. 
In cases where interest rate changes are at the creditor's discretion 
(see the commentary to Sec. 226.19(b)(2)(ii)), the creditor must provide 
a history of the rates imposed for the preceding 15 years, beginning 
with the rates in 1977. In giving this history, the creditor need only 
go back as far as the creditor's rates can reasonably be determined.
    2. Selection of index values. The historical example must reflect 
the method by which index values are determined under the program. If a 
creditor uses an average of index values or any other index formula, the 
history given should reflect those values. The creditor should select 
one date or, when an average of single values is used as an index, one 
period and should base the example on index values measured as of that 
same date or period for each year shown in the history. A date or period 
at any time during the year may be selected, but the same date or period 
must be used for each year in the historical example. For example, a 
creditor could use values for the first business day in July or for the 
first week ending in July for each of the 15 years shown in the example.
    3. Selection of margin. For purposes of the disclosure required 
under Sec. 226.19(b)(2)(viii), a creditor may select a representative 
margin that has been used during the six months preceding preparation of 
the disclosures, and should disclose that the margin is one that the 
creditor has used recently. The margin selected may be used until a 
creditor revises the disclosure form.
    4. Amount of discount or premium. For purposes of the disclosure 
required under Sec. 226.19(b)(2)(viii), a creditor may select a discount 
or premium (amount and term) that has been used during the six months 
preceding preparation of the disclosures, and should disclose that the 
discount or premium is one that the creditor has used recently. The 
discount or premium should be reflected in the historical example for as 
long as the discount or premium is in effect. A creditor may assume that 
a discount that would have been in effect for any part of a year was in 
effect for the full year for purposes of reflecting it in the historical 
example. For example, a 3-month discount may be treated as being in 
effect for the entire first year of the example; a 15-month discount may 
be treated as being in effect for the first two years of the example. In 
illustrating the effect of the discount or premium, creditors should 
adjust the value of the interest rate in the historical example, and 
should not adjust the margin or index values. For example, if during the 
six months preceding preparation of the

[[Page 393]]

disclosures the fully indexed rate would have been 10% but the first 
year's rate under the program was 8%, the creditor would discount the 
first interest rate in the historical example by 2 percentage points.
    5. Term of the loan. In calculating the payments and loan balances 
in the historical example, a creditor need not base the disclosures on 
each term to maturity or payment amortization that it offers. Instead, 
disclosures for ARMs may be based upon terms to maturity or payment 
amortizations of 5, 15 and 30 years, as follows: ARMs with terms or 
amortizations from over 1 year to 10 years may be based on a 5-year term 
or amortization; ARMs with terms or amortizations from over 10 years to 
20 years may be based on a 15-year term or amortization; and ARMs with 
terms or amortizations over 20 years may be based on a 30-year term or 
amortization. Thus, disclosures for ARMs offered with any term from over 
1 year to 40 years may be based solely on terms of 5, 15 and 30 years. 
Of course, a creditor may always base the disclosures on the actual 
terms or amortizations offered. If the creditor bases the disclosures on 
5-, 15- or 30-year terms or payment amortization as provided above, the 
term or payment amortization used in making the disclosure must be 
stated.
    6. Rate caps. A creditor using the alternative rule described in 
comment 19(b)(2)(vii)-1 for disclosure of rate limitations must base the 
historical example upon the highest periodic and overall rate 
limitations disclosed under section 226.19(b)(2)(vii). In addition, the 
creditor must state the limitations used in the historical example. (See 
comment 19(b)(2)(x)-3 for an explanation of the use of the highest rate 
limitation in other disclosures.)
    7. Frequency of adjustments. In certain transactions, creditors may 
use the alternative rule described in comment 19(b)(2)(vi)-1 for 
disclosure of the frequency of rate and payment adjustments. In such 
cases, the creditor may assume for purposes of the historical example 
that the first adjustment occurred at the end of the first full year in 
which the adjustment could occur. For example, in an ARM in which the 
first adjustment may occur between 6 and 18 months after closing and 
annually thereafter, the creditor may assume that the first adjustment 
occurred at the end of the first year in the historical example. (See 
comment 19(b)(2)(x)-4 for an explanation of how to compute the maximum 
interest rate and payment when the initial adjustment period is not 
known.)
    Paragraph 19(b)(2)(ix).
    1. Calculation of payments. A creditor is required to include a 
statement on the disclosure form that explains how a consumer may 
calculate his or her actual monthly payments for a loan amount other 
than $10,000. The example should be based upon the most recent payment 
shown in the historical example. However, in transactions in which the 
latest payment shown in the historical example is not for the latest 
year of index values shown (such as in a five-year loan), a creditor may 
provide additional examples based on the initial and maximum payments 
disclosed under Sec. 226.19(b)(2)(x). The creditor, however, is not 
required to calculate the consumer's payment. (See the model clauses in 
appendix H-4(C).)
    Paragraph 19(b)(2)(x).
    1. Initial and maximum interest rate and payment. The disclosure 
form must state the initial and maximum interest rates and payments for 
a $10,000 loan originated at the most recent interest rate (index value 
plus margin) shown in the historical example. In calculating the maximum 
payments under this paragraph, a creditor should assume that the 
interest rate increases as rapidly as possible under the loan program, 
and the maximum payment disclosed should reflect the amortization of the 
loan during this period. Thus, in a loan with 2 percentage point annual 
(and 5 percentage point overall) interest rate limitations or ``caps,'' 
the maximum interest rate would be 5 percentage points higher than the 
most recent rate shown in the historical example. Moreover, the loan 
would not reach the maximum interest rate until the fourth year because 
of the 2 percentage point annual rate limitations, and the maximum 
payment disclosed would reflect the amortization of the loan during this 
period. If the loan program includes a discounted or premium initial 
interest rate, the most recent rate shown in the historical example 
should be adjusted by the amount of the discount or premium reflected 
elsewhere in the disclosure for purposes of the requirements of this 
paragraph. Furthermore, this disclosure should state the amount by which 
the most recent rate has been adjusted. (See the commentary to 
Sec. 226.19(b)(2)(viii) regarding disclosure of the amount of a discount 
or premium.) The creditor may use an interest rate applicable to the 
program that is more recent than the latest rate shown in the historical 
example.
    2. Term of the loan. In calculating the initial and maximum 
payments, the creditor need not base the disclosures on each term to 
maturity or payment amortization offered under the program. Instead, the 
creditor may follow the rules set out in comment 19(b)(2)(viii)-5. In 
calculating the initial and maximum payment, the terms to maturity or 
payment amortizations selected for the purpose of making disclosures 
under Sec. 226.19(b)(2)(viii) must be used. In addition, creditors must 
state the term or payment amortization used in making the disclosures 
under this section.
    3. Rate caps. A creditor using the alternative rule for disclosure 
of interest rate limitations described in comment

[[Page 394]]

19(b)(2)(vii)-1 must calculate the maximum interest rate and payment 
based upon the highest periodic and overall rate limitations disclosed 
under Sec. 226.19(b)(2)(vii). In addition, the creditor must state the 
rate limitations used in calculating the maximum interest rate and 
payment. (See comment 19(b)(2)(viii)-6 for an explanation of the use of 
the highest rate limitation in other disclosures.)
    4. Frequency of adjustments. In certain transactions, a creditor may 
use the alternative rule for disclosure of the frequency of rate and 
payment adjustments described in comment 19(b)(2)(vi)-1. In such cases, 
the creditor must base the calculations of the initial and maximum rates 
and payments upon the earliest possible first adjustment disclosed under 
Sec. 226.19(b)(2)(vi). (See comment 19(b)(2)(viii)-7 for an explanation 
of how to disclose the historical example when the initial adjustment 
period is not known.)
    Paragraph 19(b)(2)(xi).
    1. Demand feature. If a variable-rate loan subject to Sec. 226.19(b) 
requirements contains a demand feature as discussed in the commentary to 
Sec. 226.18(i), this fact must be disclosed. (Pursuant to 
Sec. 226.18(i), creditors would also disclose the demand feature in the 
standard disclosures given later.)
    Paragraph 19(b)(2)(xii).
    1. Adjustment notices. A creditor must disclose to the consumer the 
type of information that will be contained in subsequent notices of 
adjustments and when such notices will be provided. (See the commentary 
to Sec. 226.20(c) regarding notices of adjustments.) For example, the 
disclosure might state, ``You will be notified at least 25, but no more 
than 120, days before the due date of a payment at a new level. This 
notice will contain information about the index and interest rates, 
payment amount, and loan balance.'' In transactions where there may be 
interest rate adjustments without accompanying payment adjustments in a 
year, the disclosure might read, ``You will be notified once each year 
during which interest rate adjustments, but no payment adjustments, have 
been made to your loan. This notice will contain information about the 
index and interest rates, payment amount, and loan balance.''
    Paragraph 19(b)(2)(xiii).
    1. Multiple loan programs. A creditor that offers multiple variable-
rate loan programs is required to have disclosures for each variable-
rate loan program subject to Sec. 226.19(b)(2). Unless disclosures for 
all of its variable-rate programs are provided initially, the creditor 
must inform the consumer that other closed-end variable-rate programs 
exist, and that disclosure forms are available for these additional loan 
programs. For example, the disclosure form might state, ``Information on 
other adjustable rate mortgage programs is available upon request.''

                               References

    Statute: Section 128(b)(2) and the Real Estate Settlement Procedures 
Act (12 U.S.C. 2602).
    Other sections: Sections 226.2, 226.17, and 226.22.
    Other regulations: Regulation X (24 CFR 3500.2(a), 3500.5(b), and 
3500.6(a)).
    Previous regulation: None.
    1981 changes: This section implements section 128(b)(2), a new 
provision that requires early disclosure of credit terms in certain 
mortgage transactions.

           Section 226.20  Subsequent Disclosure Requirements

    Paragraph 20(a) Refinancings.
    1. Definition. A refinancing is a new transaction requiring a 
complete new set of disclosures. Whether a refinancing has occurred is 
determined by reference to whether the original obligation has been 
satisfied or extinguished and replaced by a new obligation, based on the 
parties' contract and applicable law. The refinancing may involve the 
consolidation of several existing obligations, disbursement of new money 
to the consumer or on the consumer's behalf, or the rescheduling of 
payments under an existing obligation. In any form, the new obligation 
must completely replace the prior one.

     Changes in the terms of an existing obligation, such as the 
deferral of individual installments, will not constitute a refinancing 
unless accomplished by the cancellation of that obligation and the 
substitution of a new obligation.
     A substitution of agreements that meets the refinancing 
definition will require new disclosures, even if the substitution does 
not substantially alter the prior credit terms.

    2. Exceptions. A transaction is subject to Sec. 226.20(a) only if it 
meets the general definition of a refinancing. Section 226.20(a) (1) 
through (5) lists 5 events that are not treated as refinancings, even if 
they are accomplished by cancellation of the old obligation and 
substitution of a new one.
    3. Variable-rate.
    i. If a variable-rate feature was properly disclosed under the 
regulation, a rate change in accord with those disclosures is not a 
refinancing. For example, no new disclosures are required when the 
variable-rate feature is invoked on a renewable balloon-payment mortgage 
that was previously disclosed as a variable-rate transaction.
    ii. Even if it is not accomplished by the cancellation of the old 
obligation and substitution of a new one, a new transaction subject to 
new disclosures results if the creditor either:

[[Page 395]]

    A. Increases the rate based on a variable-rate feature that was not 
previously disclosed; or
    B. Adds a variable-rate feature to the obligation. A creditor does 
not add a variable-rate feature by changing the index of a variable-rate 
transaction to a comparable index, whether the change replaces the 
existing index or substitutes an index for one that no longer exists.
    iii. If either of the events in paragraph 20(a)3.ii.A. or ii.B. 
occurs in a transaction secured by a principal dwelling with a term 
longer than one year, the disclosures required under Sec. 226.19(b) also 
must be given at that time.
    4. Unearned finance charge. In a transaction involving precomputed 
finance charges, the creditor must include in the finance charge on the 
refinanced obligation any unearned portion of the original finance 
charge that is not rebated to the consumer or credited against the 
underlying obligation. For example, in a transaction with an add-on 
finance charge, a creditor advances new money to a consumer in a fashion 
that extinguishes the original obligation and replaces it with a new 
one. The creditor neither refunds the unearned finance charge on the 
original obligation to the consumer nor credits it to the remaining 
balance on the old obligation. Under these circumstances, the unearned 
finance charge must be included in the finance charge on the new 
obligation and reflected in the annual percentage rate disclosed on 
refinancing. Accrued but unpaid finance charges are included in the 
amount financed in the new obligation.
    5. Coverage. Section 226.20(a) applies only to refinancings 
undertaken by the original creditor or a holder or servicer of the 
original obligation. A ``refinancing'' by any other person is a new 
transaction under the regulation, not a refinancing under this section.
    Paragraph 20(a)(1).
    1. Renewal. This exception applies both to obligations with a single 
payment of principal and interest and to obligations with periodic 
payments of interest and a final payment of principal. In determining 
whether a new obligation replacing an old one is a renewal of the 
original terms or a refinancing, the creditor may consider it a renewal 
even if:

     Accrued unpaid interest is added to the principal balance.
     Changes are made in the terms of renewal resulting from the 
factors listed in Sec. 226.17(c)(3).
     The principal at renewal is reduced by a curtailment of the 
obligation.

    Paragraph 20(a)(2).
    1. Annual percentage rate reduction. A reduction in the annual 
percentage rate with a corresponding change in the payment schedule is 
not a refinancing. If the annual percentage rate is subsequently 
increased (even though it remains below its original level) and the 
increase is effected in such a way that the old obligation is satisfied 
and replaced, new disclosures must then be made.
    2. Corresponding change. A corresponding change in the payment 
schedule to implement a lower annual percentage rate would be a 
shortening of the maturity, or a reduction in the payment amount or the 
number of payments of an obligation. The exception in Sec. 226.20(a)(2) 
does not apply if the maturity is lengthened, or if the payment amount 
or number of payments is increased beyond that remaining on the existing 
transaction.
    Paragraph 20(a)(3).
    1. Court agreements. This exception includes, for example, 
agreements such as reaffirmations of debts discharged in bankruptcy, 
settlement agreements, and post-judgment agreements. (See the commentary 
to Sec. 226.2(a)(14) for a discussion of court-approved agreements that 
are not considered ``credit.'')
    Paragraph 20(a)(4).
    1. Workout agreements. A workout agreement is not a refinancing 
unless the annual percentage rate is increased or additional credit is 
advanced beyond amounts already accrued plus insurance premiums.
    Paragraph 20(a)(5).
    1. Insurance renewal. The renewal of optional insurance added to an 
existing credit transaction is not a refinancing, assuming that 
appropriate Truth in Lending disclosures were provided for the initial 
purchase of the insurance.
    Paragraph 20(b) Assumptions.
    1. General definition. An assumption as defined in Sec. 226.20(b) is 
a new transaction and new disclosures must be made to the subsequent 
consumer. An assumption under the regulation requires the following 
three elements:

 A residential mortgage transaction.
 An express acceptance of the subsequent consumer by the 
creditor.
 A written agreement.

    The assumption of a nonexempt consumer credit obligation requires no 
disclosures unless all three elements are present. For example, an 
automobile dealer need not provide Truth in Lending disclosures to a 
customer who assumes an existing obligation secured by an automobile. 
However, a residential mortgage transaction with the elements described 
in Sec. 226.20(b) is an assumption that calls for new disclosures; the 
disclosures must be given whether or not the assumption is accompanied 
by changes in the terms of the obligation. (See comment 2(a)(24)-5 for a 
discussion of assumptions that are not considered residential mortgage 
transactions.)
    2. Existing residential mortgage transaction. A transaction may be a 
residential mortgage

[[Page 396]]

transaction as to one consumer and not to the other consumer. In that 
case, the creditor must look to the assuming consumer in determining 
whether a residential mortgage transaction exists. To illustrate:

     The original consumer obtained a mortgage to purchase a 
home for vacation purposes. The loan was not a residential mortgage 
transaction as to that consumer. The mortgage is assumed by a consumer 
who will use the home as a principal dwelling. As to that consumer, the 
loan is a residential mortgage transaction. For purposes of 
Sec. 226.20(b), the assumed loan is an ``existing residential mortgage 
transaction'' requiring disclosures, if the other criteria for an 
assumption are met.

    3. Express agreement. Expressly agrees means that the creditor's 
agreement must relate specifically to the new debtor and must 
unequivocally accept that debtor as a primary obligor. The following 
events are not construed to be express agreements between the creditor 
and the subsequent consumer:

     Approval of creditworthiness.
     Notification of a change in records.
     Mailing of a coupon book to the subsequent consumer.
     Acceptance of payments from the new consumer.

    4. Retention of original consumer. The retention of the original 
consumer as an obligor in some capacity does not prevent the change from 
being an assumption, provided the new consumer becomes a primary 
obligor. But the mere addition of a guarantor to an obligation for which 
the original consumer remains primarily liable does not give rise to an 
assumption. However, if neither party is designated as the primary 
obligor but the creditor accepts payment from the subsequent consumer, 
an assumption exists for purposes of Sec. 226.20(b).
    5. Status of parties. Section 226.20(b) applies only if the previous 
debtor was a consumer and the obligation is assumed by another consumer. 
It does not apply, for example, when an individual takes over the 
obligation of a corporation.
    6. Disclosures. For transactions that are assumptions within this 
provision, the creditor must make disclosures based on the ``remaining 
obligation.'' For example:
     The amount financed is the remaining principal balance plus 
any arrearages or other accrued charges from the original transaction.
     If the finance charge is computed from time to time by 
application of a percentage rate to an unpaid balance, in determining 
the amount of the finance charge and the annual percentage rate to be 
disclosed, the creditor should disregard any prepaid finance charges 
paid by the original obligor, but must include in the finance charge any 
prepaid finance charge imposed in connection with the assumption.
     If the creditor requires the assuming consumer to pay any 
charges as a condition of the assumption, those sums are prepaid finance 
charges as to that consumer, unless exempt from the finance charge under 
Sec. 226.4. If a transaction involves add-on or discount finance 
charges, the creditor may make abbreviated disclosures, as outlined in 
Sec. 226.20(b) (1) through (5). Creditors providing disclosures pursuant 
to this section for assumptions of variable-rate transactions secured by 
the consumer's principal dwelling with a term longer than one year need 
not provide new disclosures under Sec. 226.18(f)(2)(ii) or 
Sec. 226.19(b). In such transactions, a creditor may disclose the 
variable-rate feature solely in accordance with Sec. 226.18(f)(1).
    7. Abbreviated disclosures. The abbreviated disclosures permitted 
for assumptions of transactions involving add-on or discount finance 
charges must be made clearly and conspicuously in writing in a form that 
the consumer may keep. However, the creditor need not comply with the 
segregation requirement of Sec. 226.17(a)(1). The terms annual 
percentage rate and total of payments, when disclosed according to 
Sec. 226.20(b) (4) and (5), are not subject to the description 
requirements of Sec. 226.18 (e) and (h). The term annual percentage rate 
disclosed under Sec. 226.20(b)(4) need not be more conspicuous than 
other disclosures.
    Paragraph 20(c) Variable-rate adjustments.
    1. Timing of adjustment notices. This section requires a creditor 
(or a subsequent holder) to provide certain disclosures in cases where 
an adjustment to the interest rate is made in a variable-rate 
transaction subject to Sec. 226.19(b). There are two timing rules, 
depending on whether payment changes accompany interest rate changes. A 
creditor is required to provide at least one notice each year during 
which interest rate adjustments have occurred without accompanying 
payment adjustments. For payment adjustments, a creditor must deliver or 
place in the mail notices to borrowers at least 25, but not more than 
120, calendar days before a payment at a new level is due. The timing 
rules also apply to the notice required to be given in connection with 
the adjustment to the rate and payment that follows conversion of a 
transaction subject to Sec. 226.19(b) to a fixed-rate transaction. (In 
cases where an open-end account is converted to a closed-end transaction 
subject to Sec. 226.19(b), the requirements of this section do not apply 
until adjustments are made following conversion.)
    2. Exceptions. Section 226.20(c) does not apply to ``shared-
equity,'' ``shared-appreciation,'' or ``price level adjusted'' or 
similar mortgages.
    3. Basis of disclosures. The disclosures required under this section 
shall reflect the

[[Page 397]]

terms of the parties' legal obligation, as required under 
Sec. 226.17(c)(1).
    Paragraph 20(c)(1).
    1. Current and prior interest rates. The requirements under this 
paragraph are satisfied by disclosing the interest rate used to compute 
the new adjusted payment amount (``current rate'') and the adjusted 
interest rate that was disclosed in the last adjustment notice, as well 
as all other interest rates applied to the transaction in the period 
since the last notice (``prior rates''). (If there has been no prior 
adjustment notice, the prior rates are the interest rate applicable to 
the transaction at consummation, as well as all other interest rates 
applied to the transaction in the period since consummation.) If no 
payment adjustment has been made in a year, the current rate is the new 
adjusted interest rate for the transaction, and the prior rates are the 
adjusted interest rate applicable to the loan at the time of the last 
adjustment notice, and all other rates applied to the transaction in the 
period between the current and last adjustment notices. In disclosing 
all other rates applied to the transaction during the period between 
notices, a creditor may disclose a range of the highest and lowest rates 
applied during that period.
    Paragraph 20(c)(2).
    1. Current and prior index values. This section requires disclosure 
of the index or formula values used to compute the current and prior 
interest rates disclosed in Sec. 226.20(c)(1). The creditor need not 
disclose the margin used in computing the rates. If the prior interest 
rate was not based on an index or formula value, the creditor also need 
not disclose the value of the index that would otherwise have been used 
to compute the prior interest rate.
    Paragraph 20(c)(3).
    1. Unapplied index increases. The requirement that the consumer 
receive information about the extent to which the creditor has foregone 
any increase in the interest rate is applicable only to those 
transactions permitting interest rate carryover. The amount of increase 
that is foregone at an adjustment is the amount that, subject to rate 
caps, can be applied to future adjustments independently to increase, or 
offset decreases in, the rate that is determined according to the index 
or formula.
    Paragraph 20(c)(4).
    1. Contractual effects of the adjustment. The contractual effects of 
an interest rate adjustment must be disclosed including the payment due 
after the adjustment is made whether or not the payment has been 
adjusted. A contractual effect of a rate adjustment would include, for 
example, disclosure of any change in the term or maturity of the loan if 
the change resulted from the rate adjustment. In transactions where 
paying the periodic payments will not fully amortize the outstanding 
balance at the end of the loan term and where the final payment will 
equal the periodic payment plus the remaining unpaid balance, the amount 
of the adjusted payment must be disclosed if such payment has changed as 
a result of the rate adjustment. A statement of the loan balance also is 
required. The balance required to be disclosed is the balance on which 
the new adjusted payment is based. If no payment adjustment is disclosed 
in the notice, the balance disclosed should be the loan balance on which 
the payment disclosed under Sec. 226.20(c)(5) is based, if applicable, 
or the balance at the time the disclosure is prepared.
    Paragraph 20(c)(5).
    1. Fully-amortizing payment. This paragraph requires a disclosure 
only when negative amortization occurs as a result of the adjustment. A 
disclosure is not required simply because a loan calls for non-
amortizing or partially amortizing payments. For example, in a 
transaction with a five-year term and payments based on a longer 
amortization schedule, and where the final payment will equal the 
periodic payment plus the remaining unpaid balance, the creditor would 
not have to disclose the payment necessary to fully amortize the loan in 
the remainder of the five-year term. A disclosure is required, however, 
if the payment disclosed under Sec. 226.20(c)(4) is not sufficient to 
prevent negative amortization in the loan. The adjustment notice must 
state the payment required to prevent negative amortization. (This 
paragraph does not apply if the payment disclosed in Sec. 226.20(c)(4) 
is sufficient to prevent negative amortization in the loan but the final 
payment will be a different amount due to rounding.)

                               References

    Statute: None.
    Other sections: Section 226.2.
    Previous regulation: Section 226.8(j) through (l), and 
Interpretation Sections 226.807, 226.811, 226.814, and 226.817.
    1981 changes: While the previous regulation treated virtually any 
change in terms as a refinancing requiring new disclosures, this 
regulation limits refinancings to transactions in which the entire 
original obligation is extinguished and replaced by a new one. 
Redisclosure is no longer required for deferrals or extensions.
    The assumption provision retains the substance of Sec. 226.8(k) and 
Interpretation Sec. 226.807 of the previous regulation, but limits its 
scope to residential mortgage transactions.

              Section 226.21--Treatment of Credit Balances

    Paragraph 21(a).
    1. Credit balance. A credit balance arises whenever the creditor 
receives or holds funds in an account in excess of the total balance due 
from the consumer on that account. A balance might result, for example, 
from the debtor's paying off a loan by transmitting

[[Page 398]]

funds in excess of the total balance owed on the account, or from the 
early payoff of a loan entitling the consumer to a rebate of insurance 
premiums and finance charges. However, Sec. 226.21 does not determine 
whether the creditor in fact owes or holds sums for the consumer. For 
example, if a creditor has no obligation to rebate any portion of 
precomputed finance charges on prepayment, the consumer's early payoff 
would not create a credit balance with respect to those charges. 
Similarly, nothing in this provision interferes with any rights the 
creditor may have under the contract or under state law with respect to 
set-off, cross collateralization, or similar provisions.
    2. Total balance due. The phrase total balance due refers to the 
total outstanding balance. Thus, this provision does not apply where the 
consumer has simply paid an amount in excess of the payment due for a 
given period.
    3. Timing of refund. The creditor may also fulfill its obligation 
under this section by:

     Refunding any credit balance to the consumer immediately.
     Refunding any credit balance prior to a written request 
from the consumer.
     Making a good faith effort to refund any credit balance 
before 6 months have passed. If that attempt is unsuccessful, the 
creditor need not try again to refund the credit balance at the end of 
the 6-month period.

    Paragraph 21(b).
    1. Written requests--standing orders. The creditor is not required 
to honor standing orders requesting refunds of any credit balance that 
may be created on the consumer's account.
    Paragraph 21(c).
    1. Good faith effort to refund. The creditor must take positive 
steps to return any credit balance that has remained in the account for 
over 6 months. This includes, if necessary, attempts to trace the 
consumer through the consumer's last known address or telephone number, 
or both.
    2. Good faith effort unsuccessful. Section 226.21 imposes no further 
duties on the creditor if a good faith effort to return the balance is 
unsuccessful. The ultimate disposition of the credit balance (or any 
credit balance of $1 or less) is to be determined under other applicable 
law.

                               References

    Statute: Section 165.
    Other sections: None.
    Previous regulation: None.
    1981 changes: This section implements section 165 of the Act, which 
was expanded by the 1980 statutory amendments to apply to closed-end as 
well as open-end credit.

       Section 226.22--Determination of the Annual Percentage Rate

    22(a) Accuracy of the annual percentage rate.
    Paragraph 22(a)(1).
    1. Calculation method. The regulation recognizes both the actuarial 
method and the United States Rule Method (U.S. Rule) as measures of an 
exact annual percentage rate. Both methods yield the same annual 
percentage rate when payment intervals are equal. They differ in their 
treatment of unpaid accrued interest.
    2. Actuarial method. When no payment is made, or when the payment is 
insufficient to pay the accumulated finance charge, the actuarial method 
requires that the unpaid finance charge be added to the amount financed 
and thereby capitalized. Interest is computed on interest since in 
succeeding periods the interest rate is applied to the unpaid balance 
including the unpaid finance charge. Appendix J provides instructions 
and examples for calculating the annual percentage rate using the 
actuarial method.
    3. U.S. Rule. The U.S. Rule produces no compounding of interest in 
that any unpaid accrued interest is accumulated separately and is not 
added to principal. In addition, under the U.S. Rule, no interest 
calculation is made until a payment is received.
    4. Basis for calculations. When a transaction involves ``step 
rates'' or ``split rates''--that is, different rates applied at 
different times or to different portions of the principal balance--a 
single composite annual percentage rate must be calculated and disclosed 
for the entire transaction. Assume, for example, a step-rate transaction 
in which a $10,000 loan is repayable in 5 years at 10 percent interest 
for the first 2 years, 12 percent for years 3 and 4, and 14 percent for 
year 5. The monthly payments are $210.71 during the first 2 years of the 
term, $220.25 for years 3 and 4, and $222.59 for year 5. The composite 
annual percentage rate, using a calculator with a ``discounted cash flow 
analysis'' or ``internal rate of return'' function, is 10.75 percent.
    5. Good faith reliance on faulty calculation tools. Footnote 45d 
absolves a creditor of liability for an error in the annual percentage 
rate or finance charge that resulted from a corresponding error in a 
calculation tool used in good faith by the creditor. Whether or not the 
creditor's use of the tool was in good faith must be determined on a 
case-by-case basis, but the creditor must in any case have taken 
reasonable steps to verify the accuracy of the tool, including any 
instructions, before using it. Generally, the footnote is available only 
for errors directly attributable to the calculation tool itself, 
including software programs; it is not intended to absolve a creditor of 
liability for its own errors, or for errors arising from improper use of 
the tool, from incorrect data entry, or from misapplication of the law.

[[Page 399]]

    Paragraph 22(a)(2).
    1. Regular transactions. The annual percentage rate for a regular 
transaction is considered accurate if it varies in either direction by 
not more than \1/8\ of 1 percentage point from the actual annual 
percentage rate. For example, when the exact annual percentage rate is 
determined to be 10\1/8\%, a disclosed annual percentage rate from 10% 
to 10\1/4\%, or the decimal equivalent, is deemed to comply with the 
regulation.
    Paragraph 22(a)(3).
    1. Irregular transactions. The annual percentage rate for an 
irregular transaction is considered accurate if it varies in either 
direction by not more than \1/4\ of 1 percentage point from the actual 
annual percentage rate. This tolerance is intended for more complex 
transactions that do not call for a single advance and a regular series 
of equal payments at equal intervals. The \1/4\ of 1 percentage point 
tolerance may be used, for example, in a construction loan where 
advances are made as construction progresses, or in a transaction where 
payments vary to reflect the consumer's seasonal income. It may also be 
used in transactions with graduated payment schedules where the contract 
commits the consumer to several series of payments in different amounts. 
It does not apply, however, to loans with variable rate features where 
the initial disclosures are based on a regular amortization schedule 
over the life of the loan, even though payments may later change because 
of the variable rate feature.
    22(b) Computation tools.
    Paragraph 22(b)(1).
    1. Board tables. Volumes I and II of the Board's Annual Percentage 
Rate Tables provide a means of calculating annual percentage rates for 
regular and irregular transactions, respectively. An annual percentage 
rate computed in accordance with the instructions in the tables is 
deemed to comply with the regulation, even where use of the tables 
produces a rate that falls outside the general standard of accuracy. To 
illustrate:

     Volume I may be used for single advance transactions with 
completely regular payment schedules or with payment schedules that are 
regular except for an odd first payment, odd first period or odd final 
payment. When used for a transaction with a large final balloon payment, 
Volume I may produce a rate that is considerably higher than the exact 
rate produced using a computer program based directly on appendix J. 
However, the Volume I rate--produced using certain adjustments in that 
volume--is considered to be in compliance.

    Paragraph 22(b)(2).
    1. Other calculation tools. Creditors need not use the Board tables 
in calculating the annual percentage rates. Any computation tools may be 
used, so long as they produce annual percentage rates within \1/8\ or 
\1/4\ of 1 percentage point, as applicable, of the precise actuarial or 
U.S. Rule annual percentage rate.
    22(c) Single add-on rate transactions.
    1. General rule. Creditors applying a single add-on rate to all 
transactions up to 60 months in length may disclose the same annual 
percentage rate for all those transactions, although the actual annual 
percentage rate varies according to the length of the transaction. 
Creditors utilizing this provision must show the highest of those rates. 
For example:

     An add-on rate of 10 percent converted to an annual 
percentage rate produce the following actual annual percentage rates at 
various maturities: at 3 months, 14.94 percent; at 21 months, 18.18 
percent; and at 60 months, 17.27 percent. The creditor must disclose an 
annual percentage rate of 18.18 percent (the highest annual percentage 
rate) for any transaction up to 5 years, even though that rate is 
precise only for a transaction of 21 months.

    22(d) Certain transactions involving ranges of balances.
    1. General rule. Creditors applying a fixed dollar finance charge to 
all balances within a specified range of balances may understate the 
annual percentage rate by up to 8 percent of that rate, by disclosing 
for all those balances the annual percentage rate computed on the median 
balance within that range. For example:

     If a finance charge of $9 applies to all balances between 
$91 and $100, an annual percentage rate of 10 percent (the rate on the 
median balance) may be disclosed as the annual percentage rate for all 
balances, even though a $9 finance charge applied to the lowest balance 
($91) would actually produce an annual percentage rate of 10.7 percent.

                               References

    Statute: Section 107.
    Other sections: Section 226.17(c)(4) and appendix J.
    Previous regulation: Section 226.5(b) through (e).
    1981 changes: The section now provides a larger tolerance (\1/4\ of 
1 percentage point) for irregular transactions.

                   Section 226.23--Right of Rescission

    1. Transactions not covered. Credit extensions that are not subject 
to the regulation are not covered by Sec. 226.23 even if a customer's 
principal dwelling is the collateral securing the credit. For example, 
the right of rescission does not apply to a business purpose loan, even 
though the loan is secured by the customer's principal dwelling.
    23(a) Consumer's right to rescind.
    Paragraph 23(a)(1).

[[Page 400]]

    1. Security interest arising from transaction. In order for the 
right of rescission to apply, the security interest must be retained as 
part of the credit transaction. For example:

     A security interest that is acquired by a contractor who is 
also extending the credit in the transaction.
     A mechanic's or materialman's lien that is retained by a 
subcontractor or supplier of the contractor-creditor, even when the 
latter has waived its own security interest in the consumer's home.

    The security interest is not part of the credit transaction and 
therefore the transaction is not subject to the right of rescission 
when, for example:

     A mechanic's or materialman's lien is obtained by a 
contractor who is not a party to the credit transaction but is merely 
paid with the proceeds of the consumer's unsecured bank loan.
     All security interests that may arise in connection with 
the credit transaction are validly waived.
     The creditor obtains a lien and completion bond that in 
effect satisfies all liens against the consumer's principal dwelling as 
a result of the credit transaction.

    Although liens arising by operation of law are not considered 
security interests for purposes of disclosure under Sec. 226.2, that 
section specifically includes them in the definition for purposes of the 
right of rescission. Thus, even though an interest in the consumer's 
principal dwelling is not a required disclosure under Sec. 226.18(m), it 
may still give rise to the right of rescission.
    2. Consumer. To be a consumer within the meaning of Sec. 226.2, that 
person must at least have an ownership interest in the dwelling that is 
encumbered by the creditor's security interest, although that person 
need not be a signatory to the credit agreement. For example, if only 
one spouse signs a credit contract, the other spouse is a consumer if 
the ownership interest of that spouse is subject to the security 
interest.
    3. Principal dwelling. A consumer can only have one principal 
dwelling at a time. (But see comment 23(a)(1)-4.) A vacation or other 
second home would not be a principal dwelling. A transaction secured by 
a second home (such as a vacation home) that is not currently being used 
as the consumer's principal dwelling is not rescindable, even if the 
consumer intends to reside there in the future. When a consumer buys or 
builds a new dwelling that will become the consumer's principal dwelling 
within one year or upon completion of construction, the new dwelling is 
considered the principal dwelling if it secures the acquisition or 
construction loan. In that case, the transaction secured by the new 
dwelling is a residential mortgage transaction and is not rescindable. 
For example, if a consumer whose principal dwelling is currently A 
builds B, to be occupied by the consumer upon completion of 
construction, a construction loan to finance B and secured by B is a 
residential mortgage transaction. Dwelling, as defined in Sec. 226.2, 
includes structures that are classified as personalty under state law. 
For example, a transaction secured by a mobile home, trailer, or 
houseboat used as the consumer's principal dwelling may be rescindable.
    4. Special rule for principal dwelling. Notwithstanding the general 
rule that consumers may have only one principal dwelling, when the 
consumer is acquiring or constructing a new principal dwelling, any loan 
subject to Regulation Z and secured by the equity in the consumer's 
current principal dwelling (for example, a bridge loan) is subject to 
the right of rescission regardless of the purpose of that loan. For 
example, if a consumer whose principal dwelling is currently A builds B, 
to be occupied by the consumer upon completion of construction, a 
construction loan to finance B and secured by A is subject to the right 
of rescission. A loan secured by both A and B is, likewise, rescindable.
    5. Addition of a security interest. Under footnote 47, the addition 
of a security interest in a consumer's principal dwelling to an existing 
obligation is rescindable even if the existing obligation is not 
satisfied and replaced by a new obligation, and even if the existing 
obligation was previously exempt (because it was credit over $25,000 not 
secured by real property or a consumer's principal dwelling). The right 
of rescission applies only to the added security interest, however, and 
not to the original obligation. In those situations, only the 
Sec. 226.23(b) notice need be delivered, not new material disclosures; 
the rescission period will begin to run from the delivery of the notice.
    Paragraph 23(a)(2).
    1. Consumer's exercise of right. The consumer must exercise the 
right of rescission in writing but not necessarily on the notice 
supplied under Sec. 226.23(b). Whatever the means of sending the 
notification of rescission--mail, telegram or other written means--the 
time period for the creditor's performance under Sec. 226.23(d)(2) does 
not begin to run until the notification has been received. The creditor 
may designate an agent to receive the notification so long as the 
agent's name and address appear on the notice provided to the consumer 
under Sec. 226.23(b).
    Paragraph 23(a)(3).
    1. Rescission period. The period within which the consumer may 
exercise the right to rescind runs for 3 business days from the last of 
3 events:

     Consummation of the transaction.
     Delivery of all material disclosures.

[[Page 401]]

     Delivery to the consumer of the required rescission notice.

    For example, if a transaction is consummated on Friday, June 1, and 
the disclosures and notice of the right to rescind were given on 
Thursday, May 31, the rescission period will expire at midnight of the 
third business day after June 1--that is, Tuesday, June 5. In another 
example, if the disclosures are given and the transaction consummated on 
Friday, June 1, and the rescission notice is given on Monday, June 4, 
the rescission period expires at midnight of the third business day 
after June 4--that is, Thursday, June 7. The consumer must place the 
rescission notice in the mail, file it for telegraphic transmission, or 
deliver it to the creditor's place of business within that period in 
order to exercise the right.
    2. Material disclosures. Footnote 48 sets forth the material 
disclosures that must be provided before the rescission period can begin 
to run. Failure to provide information regarding the annual pecentage 
rate also includes failure to inform the consumer of the existence of a 
variable rate feature. Failure to give the other required disclosures 
does not prevent the running of the rescission period, although that 
failure may result in civil liability or administrative sanctions.
    3. Unexpired right of rescission. When the creditor has failed to 
take the action necessary to start the three-business day rescission 
period running, the right to rescind automatically lapses on the 
occurrence of the earliest of the following three events:

 The expiration of three years after consummation of the 
transaction.
 Transfer of all the consumer's interest in the property.
 Sale of the consumer's interest in the property, including a 
transaction in which the consumer sells the dwelling and takes back a 
purchase money note and mortgage or retains legal title through a device 
such as an installment sale contract.

    Transfer of all the consumers' interest includes such transfers as 
bequests and gifts. A sale or transfer of the property need not be 
voluntary to terminate the right to rescind. For example, a foreclosure 
sale would terminate an unexpired right to rescind. As provided in 
section 125 of the Act, the three-year limit may be extended by an 
administrative proceeding to enforce the provisions of this section. A 
partial transfer of the consumer's interest, such as a transfer 
bestowing co-ownership on a spouse, does not terminate the right of 
rescission.
    Paragraph 23(a)(4).
    1. Joint owners. When more than one consumer has the right to 
rescind a transaction, any of them may exercise that right and cancel 
the transaction on behalf of all. For example, if both husband and wife 
have the right to rescind a transaction, either spouse acting alone may 
exercise the right and both are bound by the rescission.
    23(b) Notice of right to rescind.
    1. Who receives notice. Each consumer entitled to rescind must be 
given:

     Two copies of the rescission notice.
     The material disclosures.

    In a transaction involving joint owners, both of whom are entitled 
to rescind, both must receive the notice of the right to rescind and 
disclosures. For example, if both spouses are entitled to rescind a 
transaction, each must receive 2 copies of the rescission notice and one 
copy of the disclosures.
    2. Format. The notice must be on a separate piece of paper, but may 
appear with other information such as the itemization of the amount 
financed. The material must be clear and conspicuous, but no minimum 
type size or other technical requirements are imposed. The notices in 
appendix H provide models that creditors may use in giving the notice.
    3. Content. The notice must include all of the information outlined 
in Section 226.23(b)(1)(i) through (v). The requirement in 
Sec. 226.23(b) that the transaction be identified may be met by 
providing the date of the transaction. The creditor may provide a 
separate form that the consumer may use to exercise the right of 
rescission, or that form may be combined with the other rescission 
disclosures, as illustrated in appendix H. The notice may include 
additional information related to the required information, such as:

     A description of the property subject to the security 
interest.
     A statement that joint owners may have the right to rescind 
and that a rescission by one is effective for all.
     The name and address of an agent of the creditor to receive 
notice of rescission.

    4. Time of providing notice. The notice required by Sec. 226.23(b) 
need not be given before consummation of the transaction. The creditor 
may deliver the notice after the transaction is consummated, but the 
rescission period will not begin to run until the notice is given. For 
example, if the creditor provides the notice on May 15, but disclosures 
were given and the transaction was consummated on May 10, the 3-business 
day rescission period will run from May 15.
    23(c) Delay of creditor's performance.
    1. General rule. Until the rescission period has expired and the 
creditor is reasonably satisfied that the consumer has not rescinded, 
the creditor must not, either directly or through a third party:

     Disburse loan proceeds to the consumer.
     Begin performing services for the consumer.
     Deliver materials to the consumer.

    2. Escrow. The creditor may disburse loan proceeds during the 
rescission period in a valid escrow arrangement. The creditor may

[[Page 402]]

not, however, appoint the consumer as ``trustee'' or ``escrow agent'' 
and distribute funds to the consumer in that capacity during the delay 
period.
    3. Actions during the delay period. Section 226.23(c) does not 
prevent the creditor from taking other steps during the delay, short of 
beginning actual performance. Unless otherwise prohibited, such as by 
state law, the creditor may, for example:
     Prepare the loan check.
     Perfect the security interest.
     Prepare to discount or assign the contract to a third 
party.
     Accrue finance charges during the delay period.

    4. Delay beyond rescission period. The creditor must wait until it 
is reasonably satisfied that the consumer has not rescinded. For 
example, the creditor may satisfy itself by doing one of the following:

     Waiting a reasonable time after expiration of the 
rescission period to allow for delivery of a mailed notice.
     Obtaining a written statement from the consumer that the 
right has not been exercised.

    When more than one consumer has the right to rescind, the creditor 
cannot reasonably rely on the assurance of only one consumer, because 
other consumers may exercise the right.
    23(d) Effects of rescission.
    Paragraph 23(d)(1).
    1. Termination of security interest. Any security interest giving 
rise to the right of rescission becomes void when the consumer exercises 
the right of rescission. The security interest is automatically negated 
regardless of its status and whether or not it was recorded or 
perfected. Under Sec. 226.23(d)(2), however, the creditor must take any 
action necessary to reflect the fact that the security interest no 
longer exists.
    Paragraph 23(d)(2).
    1. Refunds to consumer. The consumer cannot be required to pay any 
amount in the form of money or property either to the creditor or to a 
third party as part of the credit transaction. Any amounts of this 
nature already paid by the consumer must be refunded. ``Any amount'' 
includes finance charges already accrued, as well as other charges, such 
as broker fees, application and commitment fees, or fees for a title 
search or appraisal, whether paid to the creditor, paid directly to a 
third party, or passed on from the creditor to the third party. It is 
irrelevant that these amounts may not represent profit to the creditor.
    2. Amounts not refundable to consumer. Creditors need not return any 
money given by the consumer to a third party outside of the credit 
transaction, such as costs incurred for a building permit or for a 
zoning variance. Similarly, the term any amount does not apply to any 
money or property given by the creditor to the consumer; those amounts 
must be tendered by the consumer to the creditor under 
Sec. 226.23(d)(3).
    3. Reflection of security interest termination. The creditor must 
take whatever steps are necessary to indicate that the security interest 
is terminated. Those steps include the cancellation of documents 
creating the security interest, and the filing of release or termination 
statements in the public record. In a transaction involving 
subcontractors or suppliers that also hold security interests related to 
the credit transaction, the creditor must insure that the termination of 
their security interests is also reflected. The 20-day period for the 
creditor's action refers to the time within which the creditor must 
begin the process. It does not require all necessary steps to have been 
completed within that time, but the creditor is responsible for seeing 
the process through to completion.
    Paragraph 23(d)(3).
    1. Property exchange. Once the creditor has fulfilled its 
obligations under Sec. 226.23(d)(2), the consumer must tender to the 
creditor any property or money the creditor has already delivered to the 
consumer. At the consumer's option, property may be tendered at the 
location of the property. For example, if lumber or fixtures have been 
delivered to the consumer's home, the consumer may tender them to the 
creditor by making them available for pick-up at the home, rather than 
physically returning them to the creditor's premises. Money already 
given to the consumer must be tendered at the creditor's place of 
business.
    2. Reasonable value. If returning the property would be extremely 
burdensome to the consumer, the consumer may offer the creditor its 
reasonable value rather than returning the property itself. For example, 
if building materials have already been incorporated into the consumer's 
dwelling, the consumer may pay their reasonable value.
    Paragraph 23(d)(4).
    1. Modifications. The procedures outlined in Sec. 226.23(d) (2) and 
(3) may be modified by a court. For example, when a consumer is in 
bankruptcy proceedings and prohibited from returning anything to the 
creditor, or when the equities dictate, a modification might be made.
    23(e) Consumer's waiver of right to rescind.
    1. Need for waiver. To waive the right to rescind, the consumer must 
have a bona fide personal financial emergency that must be met before 
the end of the rescission period. The existence of the consumer's waiver 
will not, of itself, automatically insulate the creditor from liability 
for failing to provide the right of rescission.
    2. Procedure. To waive or modify the right to rescind, the consumer 
must give a written

[[Page 403]]

statement that specifically waives or modifies the right, and also 
includes a brief description of the emergency. Each consumer entitled to 
rescind must sign the waiver statement. In a transaction involving 
multiple consumers, such as a husband and wife using their home as 
collateral, the waiver must bear the signatures of both spouses.
    23(f) Exempt transactions.
    1. Residential mortgage transaction. Any transaction to construct or 
acquire a principal dwelling, whether considered real or personal 
property, is exempt. (See the commentary to Sec. 226.23(a).) For 
example, a credit transaction to acquire a mobile home or houseboat to 
be used as the consumer's principal dwelling would not be rescindable.
    2. Lien status. The lien status of the mortgage is irrelevant for 
purposes of the exemption in Sec. 226.23(f)(1); the fact that a loan has 
junior lien status does not by itself preclude application of this 
exemption. For example, a home buyer may assume the existing first 
mortgage and create a second mortgage to finance the balance of the 
purchase price. Such a transaction would not be rescindable.
    3. Combined-purpose transaction. A loan to acquire a principal 
dwelling and make improvements to that dwelling is exempt if treated as 
one transaction. If, on the other hand, the loan for the acquisition of 
the principal dwelling and the subsequent advances for improvements are 
treated as more than one transaction, then only the transaction that 
finances the acquisition of that dwelling is exempt.
    4. New advances. The exemption in Sec. 226.23(f)(2) applies only to 
refinancings (including consolidations) by the original creditor. The 
original creditor is the creditor to whom the written agreement was 
initially made payable. In a merger, consolidation or acquisition, the 
successor institution is considered the original creditor for purposes 
of the exemption in Sec. 226.23(f)(2). If the refinancing involves a new 
advance of money, the amount of the new advance is rescindable. In 
determining whether there is a new advance, a creditor may rely on the 
amount financed, refinancing costs, and other figures stated in the 
latest Truth in Lending disclosures provided to the consumer and is not 
required to use, for example, more precise information that may only 
become available when the loan is closed. For purposes of the right of 
rescission, a new advance does not include amounts attributed solely to 
the costs of the refinancing. These amounts would include 
Sec. 226.4(c)(7) charges (such as attorneys fees and title examination 
and insurance fees, if bona fide and reasonable in amount), as well as 
insurance premiums and other charges that are not finance charges. 
(Finance charges on the new transaction--points, for example--would not 
be considered in determining whether there is a new advance of money in 
a refinancing since finance charges are not part of the amount 
financed.) To illustrate, if the sum of the outstanding principal 
balance plus the earned unpaid finance charge is $50,000 and the new 
amount financed is $51,000, then the refinancing would be exempt if the 
extra $1,000 is attributed solely to costs financed in connection with 
the refinancing that are not finance charges. Of course, if new advances 
of money are made (for example, to pay for home improvements) and the 
consumer exercises the right of rescission, the consumer must be placed 
in the same position as he or she was in prior to entering into the new 
credit transaction. Thus, all amounts of money (which would include all 
the costs of the refinancing) already paid by the consumer to the 
creditor or to a third party as part of the refinancing would have to be 
refunded to the consumer. (See the commentary to Sec. 226.23(d)(2) for a 
discussion of refunds to consumers.) A model rescission notice 
applicable to transactions involving new advances appears in appendix H. 
The general rescission notice (model form H-8) is the appropriate form 
for use by creditors not considered original creditors in refinancing 
transactions.
    5. State creditors. Cities and other political subdivisions of 
states acting as creditors are not exempted from this section.
    6. Multiple advances. Just as new disclosures need not be made for 
subsequent advances when treated as one transaction, no new rescission 
rights arise so long as the appropriate notice and disclosures are given 
at the outset of the transaction. For example, the creditor extends 
credit for home improvements secured by the consumer's principal 
dwelling, with advances made as repairs progress. As permitted by 
Sec. 226.17(c)(6), the creditor makes a single set of disclosures at the 
beginning of the construction period, rather than separate disclosures 
for each advance. The right of rescission does not arise with each 
advance. However, if the advances are treated as separate transactions, 
the right of rescission applies to each advance.
    7. Spreader clauses. When the creditor holds a mortgage or deed of 
trust on the consumer's principal dwelling and that mortgage or deed of 
trust contains a ``spreader clause,'' subsequent loans made are separate 
transactions and are subject to the right of rescission. Those loans are 
rescindable unless the creditor effectively waives its security interest 
under the spreader clause with respect to the subsequent transactions.
    8. Converting open-end to closed-end credit. Under certain state 
laws, consummation of a closed-end credit transaction may occur at the 
time a consumer enters into the intitial open-end credit agreement. As 
provided in the commentary to Sec. 226.17(b), closed-end credit 
disclosures may be delayed under these circumstances until the 
conversion of

[[Page 404]]

the open-end account to a closed-end transaction. In accounts secured by 
the consumer's principal dwelling, no new right of rescission arises at 
the time of conversion. Rescission rights under Sec. 226.15 are 
unaffected.

                               References

    Statute: Sections 113, 125, and 130.
    Other sections: Section 226.2 and appendix H.
    Previous regulation: Section 226.9.
    1981 changes: The right to rescind applies not only to real property 
used as the consumer's principal dwelling, but to personal property as 
well. The regulation provides no specific text or format for the notice 
of the right to rescind.

                       Section 226.24--Advertising

    1. Clear and conspicuous standard. This section is subject to the 
general ``clear and conspicous'' standard for this subpart but 
prescribes no specific rules for the format of the necessary 
disclosures. The credit terms need not be printed in a certain type size 
nor need they appear in any particular place in the advertisment. For 
example, a merchandise tag that is an advertisement under the regulation 
complies with this section if the necessary credit terms are on both 
sides of the tag, so long as each side is accessible.
    24(a) Actually available terms.
    1. General rule. To the extent that an advertisement mentions 
specific credit terms, it may state only those terms that the creditor 
is actually prepared to offer. For example, a creditor may not advertise 
a very low annual percentage rate that will not in fact be available at 
any time. This provision is not intended to inhibit the promotion of new 
credit programs, but to bar the advertising of terms that are not and 
will not be available. For example, a creditor may advertise terms that 
will be offered for only a limited period, or terms that will become 
available at a future date.
    24(b) Advertisment of rate of finance charge.
    1. Annual percentage rate. Advertised rates must be stated in terms 
of an annual percentage rate, as defined in Sec. 226.22. Even though 
state or local law permits the use of add-on, discount, time-price 
differential, or other methods of stating rates, advertisements must 
state them as annual percentage rates. Unlike the transactional 
disclosure of an annual percentage rate under Sec. 226.18(e), the 
advertised annual percentage rate need not include a descriptive 
explanation of the term and may be expressed using the abbreviation APR. 
The advertisement must state that the rate is subject to increase after 
consummation if that is the case, but the advertisement need not 
describe the rate increase, its limits, or how it would affect the 
payment schedule. As under Sec. 226.18(f), relating to disclosure of a 
variable rate, the rate increase disclosure requirement in this 
provision does not apply to any rate increase due to delinquency 
(including late payment), default, acceleration, assumption, or transfer 
of collateral.
    2. Simple or periodic rates. The advertisement may not 
simultaneously state any other rate, except that a simple annual rate or 
periodic rate applicable to an unpaid balance may appear along with (but 
not more conspicuously than) the annual percentage rate. For example:

     In an advertisement for real estate, a simple interest rate 
may be shown in the same type size as the annual percentage rate for the 
advertised credit.

    3. Buydowns. When a third party (such as a seller) or a creditor 
wishes to promote the availability of reduced interest rates (consumer 
or seller buydowns), the advertised annual percentage rate must be 
determined in accordance with the rules in the commentary to 
Sec. 226.17(c) regarding the basis of transactional disclosures for 
buydowns. The seller or creditor may advertise the reduced simple 
interest rate, provided the advertisement shows the limited term to 
which the reduced rate applies and states the simple interest rate 
applicable to the balance of the term. The advertisement may also show 
the effect of the buydown agreement on the payment schedule for the 
buydown period without triggering the additional disclosures under 
Sec. 226.24(c)(2). For example, the advertisement may state that ``with 
this buydown arrangement, your monthly payments for the first 3 years of 
the mortgage term will be only $350'' or ``this buydown arrangement will 
reduce your monthly payments for the first 3 years of the mortgage term 
by $150.''
    4. Effective rates. In some transactions the consumer's payments may 
be based upon an interest rate lower than the rate at which interest is 
accruing. The lower rate may be referred to as the effective rate, 
payment rate or qualifying rate. A creditor or seller may advertise such 
rates by stating: The term of the reduced payment schedule, the interest 
rate upon which the reduced payments are calculated, the rate at which 
the interest is in fact accruing, and the annual percentage rate. The 
advertised annual percentage rate that must accompany this rate must 
take into account the interest that will accrue but will not be paid 
during this period. For example, an advertisement may state ``An 
effective first year interest rate of 10 percent. Interest being earned 
at 14 percent. Annual percentage rate 15 percent.''
    5. Discounted variable-rate transactions. The advertised annual 
percentage rate for discounted variable-rate transactions must be 
determined in accordance with comment 17(c)(1)-10 regarding the basis of 
transactional disclosures for such financing. A

[[Page 405]]

creditor or seller may promote the availability of the initial rate 
reduction in such transactions by advertising the reduced initial rate, 
provided the advertisement shows the limited term to which the reduced 
rate applies.
     Limits or caps on periodic rate or payment adjustments need 
not be stated. To illustrate using the second example in comment 
17(c)(1)-10, the fact that the rate is presumed to be 11 percent in the 
second year and 12 percent for the remaining 28 years need not be 
included in the advertisement.
     The advertisement may also show the effect of the discount 
on the payment schedule for the discount period without triggering the 
additional disclosures under Sec. 226.24(c). For example, the 
advertisement may state that ``with this discount, your monthly payments 
for the first year of the mortgage term will be only $577'' or ``this 
discount will reduce your monthly payments for the first year of the 
mortgage term by $223.''
    24(c) Advertisement of terms that require additional disclosures.
    1. General rule. Under Sec. 226.24(c)(1), whenever certain 
triggering terms appear in credit advertisements, the additional credit 
terms enumerated in Sec. 226.24(c)(2) must also appear. These provisions 
apply even if the triggering term is not stated explicitly, but may be 
readily determined from the advertisement. For example, an advertisement 
may state ``80% financing available,'' which is in fact indicating that 
a 20% downpayment is required.
    Paragraph 24(c)(1).
    1. Downpayment. The dollar amount of a downpayment or a statement of 
the downpayment as a percentage of the price requires further 
information. By virtue of the definition of downpayment in Sec. 226.2, 
this triggering term is limited to credit sale transactions. It includes 
such statements as:
     Only 5% down.
     As low as $100 down.
     Total move-in costs of $800.

    This provision applies only if a downpayment is actually required; 
statements such as no downpayment or no trade-in required do not trigger 
the additional disclosures under this paragraph.
    2. Payment period. The number of payments required or the total 
period of repayment includes such statements as:

     48-month payment terms.
     30-year mortgage.
     Repayment in as many as 36 monthly installments.

    But it does not include such statements as ``pay weekly,'' ``monthly 
payment terms arranged,'' or ``take years to repay,'' since these 
statements do not indicate a time period over which a loan may be 
financed.
    3. Payment amount. The dollar amount of any payment includes 
statements such as:

     ``Payable in installments of $103.''
     ``$25 weekly.''
     ``$1,200 balance payable in 10 equal installments.''

    In the last example, the amount of each payment is readily 
determinable, even though not explicitly stated. But statements such as 
``monthly payments to suit your needs'' or ``regular monthly payments'' 
are not covered.
    4. Finance charge. The dollar amount of the finance charge or any 
portion of it includes statements such as:

     ``$500 total cost of credit.''
     ``$2 monthly carrying charge.''
     ``$50,000 mortgages, 2 points to the borrower.''

    In the last example, the $1,000 prepaid finance charge can be 
readily determined from the information given. Statements of the annual 
percentage rate or statements that there is no particular charge for 
credit (such as ``no closing costs'') are not triggering terms under 
this paragraph.
    Paragraph 24(c)(2).
    1. Disclosure of downpayment. The total downpayment as a dollar 
amount or percentage must be shown, but the word ``downpayment'' need 
not be used in making this disclosure. For example, ``10% cash required 
from buyer'' or ``credit terms require minimum $100 trade-in'' would 
suffice.
    2. Disclosure of repayment terms. While the phrase terms of 
repayment generally has the same meaning as the payment schedule 
required to be disclosed under Sec. 226.18(g), Sec. 226.24(c)(2)(ii) 
provides greater flexibility to creditors in making this disclosure for 
advertising purposes. Repayment terms may be expressed in a variety of 
ways in addition to an exact repayment schedule; this is particularly 
true for advertisements that do not contemplate a single specific 
transaction. For example:

     A creditor may use a unit-cost approach in making the 
required disclosure, such as ``48 monthly payments of $27.83 per $1,000 
borrowed.''
     In an advertisement for credit secured by a dwelling, when 
any series of payments varies because of a graduated payment feature or 
because of the inclusion of mortgage insurance premiums, a creditor may 
state the number and timing of payments, the amounts of the largest and 
smallest of those payments, and the fact that other payments will vary 
between those amounts.

    3. Annual percentage rate. The advertised annual percentage rate may 
be expressed using the abbreviation ``APR.'' The advertisement must also 
state, if applicable, that the annual percentage rate is subject to 
increase after consummation.
    4. Use of examples. Footnote 49 authorizes the use of illustrative 
credit transactions to make the necessary disclosures under

[[Page 406]]

Sec. 226.24(c)(2). That is, where a range of possible combinations of 
credit terms is offered, the advertisement may use examples of typical 
transactions, so long as each example contains all of the applicable 
terms required by Sec. 226.24(c). The examples must be labelled as such 
and must reflect representative credit terms that are made available by 
the creditor to present and prospective customers.
    24(d) Catalogs and multiple-page advertisements.
    1. Definition. The multiple-page advertisements to which this 
section refers are advertisements consisting of a series of sequentially 
numbered pages--for example, a supplement to a newspaper. A mailing 
consisting of several separate flyers or pieces of promotional material 
in a single envelope does not constitute a single multiple-page 
advertisement for purposes of Sec. 226.24(d).
    2. General. Section 226.24(d) permits creditors to put credit 
information together in one place in a catalog or multiple-page 
advertisement. The rule applies only if the catalog or multiple-page 
advertisement contains one or more of the triggering terms from 
Sec. 226.24(c)(1). A list of different annual percentage rates 
applicable to different balances, for example, does not trigger further 
disclosures under Sec. 226.24(c)(2) and so is not covered by 
Sec. 226.24(d).
    3. Representative examples. The table or schedule must state all the 
necessary information for a representative sampling of amounts of 
credit. This must reflect amounts of credit the creditor actually 
offers, up to and including the higher-priced items. This does not mean 
that the chart must make the disclosures for the single most expensive 
item the seller offers, but only that the chart cannot be limited to 
information about less expensive sales when the seller commonly offers a 
distinct level of more expensive goods or services. The range of 
transactions shown in the table or schedule in a particular catalog or 
multiple-page advertisement need not exceed the range of transactions 
actually offered in that advertisement.

                               References

    Statute: Sections 141, 142, and 144.
    Other sections: Sections 226.2, 226.4, and 226.22.
    Previous regulation: Section 226.10 (a), (b), and (d).
    1981 changes: This section retains the advertising rules in a form 
very similar to the previous regulation, but with certain changes to 
reflect the 1980 statutory amendments. For example, if triggering terms 
appear in any advertisement, the additional disclosures required no 
longer include the cash price. The special rule for FHA section 235 
financing has been eliminated, as well as the rule for advertising 
credit payable in more than four installments with no identified finance 
charge. Interpretation Sec. 226.1002, requiring disclosure of 
representative amounts of credit in catalogs and multiple-page 
advertisements, has been incorporated in simplified form in 
Sec. 226.24(d).
    Unlike the previous regulation, if the advertised annual percentage 
rate is subject to increase, that fact must now be disclosed.

                        Subpart D--Miscellaneous

                    Section 226.25--Record Retention

    25(a) General rule.
    1. Evidence of required actions. The creditor must retain evidence 
that it performed the required actions as well as made the required 
disclosures. This includes, for example, evidence that the creditor 
properly handled adverse credit reports in connection with amounts 
subject to a billing dispute under Sec. 226.13, and properly handled the 
refunding of credit balances under Secs. 226.11 and 226.21.
    2. Methods of retaining evidence. Adequate evidence of compliance 
does not necessarily mean actual paper copies of disclosure statements 
or other business records. The evidence may be retained on microfilm, 
microfiche, or by any other method that reproduces records accurately 
(including computer programs). The creditor need retain only enough 
information to reconstruct the required disclosures or other records. 
Thus, for example, the creditor need not retain each open-end periodic 
statement, so long as the specific information on each statement can be 
retrieved.
    3. Certain variable-rate transactions. In variable-rate transactions 
that are subject to the disclosure requirements of Sec. 226.19(b), 
written procedures for compliance with those requirements as well as a 
sample disclosure form for each loan program represent adequate evidence 
of compliance. (See comment 25(a)-2 pertaining to permissible methods of 
retaining the required disclosures.)
    4. Home equity plans. In home equity plans that are subject to the 
requirements of Sec. 226.5b, written procedures for compliance with 
those requirements as well as a sample disclosure form and contract for 
each home equity program represent adequate evidence of compliance. (See 
comment 25(a)-2 pertaining to permissible methods of retaining the 
required disclosures.)

                               References

    Statute: Sections 105 and 108.
    Other sections: Appendix I.
    Previous regulation: Section 226.6(i).
    1981 changes: Section 226.25 substitutes a uniform 2-year record-
retention rule for the previous requirement that certain creditors 
retain records through at least one compliance examination. It also 
states more explicitly that the record-retention requirements apply to 
evidence of required actions.

[[Page 407]]

    Section 226.26--Use of Annual Percentage Rate in Oral Disclosures

    1. Application of rules. The restrictions of Sec. 226.26 apply only 
if the creditor chooses to respond orally to the consumer's request for 
credit cost information. Nothing in the regulation requires the creditor 
to supply rate information orally. If the creditor volunteers 
information (including rate information) through oral solicitations 
directed generally to prospective customers, as through a telephone 
solicitation, those communications may be advertisements subject to the 
rules in Secs. 226.16 and 226.24.
    26(a) Open-end credit.
    1. Information that may be given. The creditor may state periodic 
rates in addition to the required annual percentage rate, but it need 
not do so. If the annual percentage rate is unknown because transaction 
charges, loan fees, or similar finance charges may be imposed, the 
creditor must give the corresponding annual percentage rate (that is, 
the periodic rate multiplied by the number of periods in a year, as 
described in Secs. 226.6(a)(2) and 226.7(d)). In such cases, the 
creditor may, but need not, also give the consumer information about 
other finance charges and other charges.
    26(b) Closed-end credit.
    1. Information that may be given. The creditor may state other 
annual or periodic rates that are applied to an unpaid balance, along 
with the required annual percentage rate. This rule permits disclosure 
of a simple interest rate, for example, but not an add-on, discount, or 
similar rate. If the creditor cannot give a precise annual percentage 
rate in its oral response because of variables in the transaction, it 
must give the annual percentage rate for a comparable sample 
transaction; in this case, other cost information may, but need not, be 
given. For example, the creditor may be unable to state a precise annual 
percentage rate for a mortgage loan without knowing the exact amount to 
be financed, the amount of loan fees or mortgage insurance premiums, or 
similar factors. In this situation, the creditor should state an annual 
percentage rate for a sample transaction; it may also provide 
information about the consumer's specific case, such as the contract 
interest rate, points, other finance charges, and other charges.

                               References

    Statute: Section 146.
    Other sections: Sections 226.6(a)(2) and 226.7(d).
    Previous regulation: Interpretation Sec. 226.101.
    1981 changes: This section implements amended section 146 of the 
Act, which added a provision dealing with oral disclosures, and 
incorporates Interpretation Sec. 226.101.

              Section 226.27--Spanish Language Disclosures

    1. Subsequent disclosures. If a creditor in Puerto Rico provides 
initial disclosures in Spanish, subsequent disclosures need not be in 
Spanish. For example, if the creditor gave Spanish-language initial 
disclosures, periodic statements and change-in-terms notices may be made 
in English.
    2. Permissible uses. If a creditor other than in Puerto Rico 
provides translations of the required disclosures--either because it is 
required to do so by state, federal, or local law, or because it chooses 
to do so--the translations are not inconsistent per se with the 
disclosures under this regulation and they may be provided as additional 
information. In both cases, the English language disclosures required by 
this regulation must be clear and conspicuous, and the closed-end 
disclosures in English must be properly segregated in accordance with 
Sec. 226.17(a)(1).

                               References

    Statute: None.
    Other sections: None.
    Previous regulation: Section 226.6(a).
    1981 changes: No substantive change.

                  Section 226.28--Effect on State Laws

    28(a) Inconsistent disclosure requirements
    1. General. There are 3 sets of preemption criteria: 1 applies to 
the general disclosure and advertising rules of the regulation, and 2 
apply to the credit billing provisions. Section 226.28 also provides for 
Board determinations of preemption.
    2. Rules for chapters 1, 2, and 3. The standard for judging whether 
State laws that cover the types of requirements in chapters 1 (General 
provisions), 2 (Credit transactions), and 3 (Credit advertising) of the 
Act are inconsistent and therefore preempted, is contradiction of the 
Federal law. Examples of laws that would be preempted include:

     A State law that requires use of the term finance charge, 
but defines the term to include fees that the Federal law excludes, or 
to exclude fees the Federal law includes.
     A State law that requires a label such as nominal annual 
interest rate to be used for what the Federal law calls the annual 
percentage rate.

    3. Laws not contradictory to chapters 1, 2, and 3. Generally, State 
law requirements that call for the disclosure of items of information 
not covered by the Federal law, or that require more detailed 
disclosures, do not contradict the Federal requirements. Examples of 
laws that are not preempted include:

     A State law that requires disclosure of the minimum 
periodic payment for open-end credit, even though not required by 
Sec. 226.7.

[[Page 408]]

     A State law that requires contracts to contain warnings 
such as: ``Read this contract before you sign. Do not sign if any spaces 
are left blank. You are entitled to a copy of this contract.''

    Similarly, a State law that requires itemization of the amount 
financed does not automatically contradict the permissive itemization 
under Sec. 226.18(c). However, a State law requirement that the 
itemization appear with the disclosure of the amount financed in the 
segregated closed-end credit disclosures is inconsistent, and this 
location requirement would be preempted.
    4. Creditor's options. Before the Board makes a determination about 
a specific State law, the creditor has certain options. Since the 
prohibition against giving the State disclosures does not apply until 
the Board makes its determination, the creditor may choose to give State 
disclosures until the Board formally determines that the State law is 
inconsistent. (The Board will provide sufficient time for creditors to 
revise forms and procedures as necessary to conform to its 
determinations.)

     Under this first approach, as in all cases, the Federal 
disclosures must be clear and conspicuous, and the closed-end 
disclosures must be properly segregated in accordance with 
Sec. 226.17(a)(1).
     This ability to give State disclosures relieves any 
uncertainty that the creditor might have prior to Board determinations 
of inconsistency.

    As a second option, the creditor may apply the preemption standards 
to a State law, conclude that it is inconsistent, and choose not to give 
the state-required disclosures. However, nothing in Sec. 226.28(a) 
provides the creditor with immunity for violations of State law if the 
creditor chooses not to make State disclosures and the Board later 
determines that the State law is not preempted.
    5. Rules for correction of billing errors and regulation of credit 
reports. The preemption criteria for the fair credit billing provisions 
set forth in Sec. 226.28 have 2 parts. With respect to the rules on 
correction of billing errors and regulation of credit reports (which are 
in Sec. 226.13), Sec. 226.28(a)(2)(i) provides that a State law is 
inconsistent and preempted if its requirements are different from the 
Federal law. An exception is made, however, for State laws that allow 
the consumer to inquire about an account and require the creditor to 
respond to such inquiries beyond the time limits in the Federal law. 
Such a State law is not preempted with respect to the extra time period. 
For example, Sec. 226.13 requires the consumer to submit a written 
notice of billing error within 60 days after transmittal of the periodic 
statement showing the alleged error. If a State law allows the consumer 
90 days to submit a notice, the State law remains in effect to provide 
the extra 30 days. Any State law disclosures concerning this extended 
state time limit must reflect the qualifications and conform to the 
format specified in Sec. 226.28(a)(2)(i). Examples of laws that would be 
preempted include:

     A State law that has a narrower or broader definition of 
billing error.
     A State law that requires the creditor to take different 
steps to resolve errors.
     A State law that provides different timing rules for error 
resolution (subject to the exception discussed above).

    6. Rules for other fair credit billing provisions. The second part 
of the criteria for fair credit billing relates to the other rules 
implementing chapter 4 of the Act (addressed in Secs. 226.4(c)(8), 
226.5(b)(2)(ii), 226.6(d), 226.7(k), 226.9(a), 226.10, 226.11, 226.12 
(c) through (f), 226.13, and 226.21). Section 226.28(a)(2)(ii) provides 
that the test of inconsistency is whether the creditor can comply with 
State law without violating Federal law. For example:

     A State law that allows the card issuer to offset the 
consumer's credit-card indebtedness against funds held by the card 
issuer would be preempted, since Sec. 226.12(d) prohibits such action.
     A State law that requires periodic statements to be sent 
more than 14 days before the end of a free-ride period would not be 
preempted.
     A State law that permits consumers to assert claims and 
defenses against the card issuer without regard to the $50 and 100-mile 
limitations of Sec. 226.12(c)(3)(ii) would not be preempted.

    In the last 2 cases, compliance with State law would involve no 
violation of the Federal law.
    7. Who may receive a chapter 4 determination. Only states (through 
their authorized officials) may request and receive determinations on 
inconsistency with respect to the fair credit billing provisions.
    8. Preemption determination--Arizona. Effective October 1, 1983, the 
Board has determined that the following provisions in the State law of 
Arizona are preempted by the Federal law:

 Section 44-287 B.5--Disclosure of final cash price balance. 
This provision is preempted in those transactions in which the amount of 
the final cash price balance is the same as the Federal amount financed, 
since in such transactions the State law requires the use of a term 
different from the Federal term to represent the same amount.
 Section 44-287 B.6--Disclosure of finance charge. This 
provision is preempted in those transactions in which the amount of the 
finance charge is different from the amount of the Federal finance 
charge, since in such transactions the State law requires the use of the 
same term as the Federal law to represent a different amount.

[[Page 409]]

 Section 44-287 B.7--Disclosure of the time balance. The time 
balance disclosure provision is preempted in those transactions in which 
the amount is the same as the amount of the Federal total of payments, 
since in such transactions the State law requires the use of a term 
different from the Federal term to represent the same amount.

    9. Preemption determination--Florida. Effective October 1, 1983, the 
Board has determined that the following provisions in the State law of 
Florida are preempted by the Federal law:

 Sections 520.07(2)(f) and 520.34(2)(f)--Disclosure of amount 
financed. This disclosure is preempted in those transactions in which 
the amount is different from the Federal amount financed, since in such 
transactions the State law requires the use of the same term as the 
Federal law to represent a different amount.
 Sections 520.07(2)(g), 520.34(2)(g), and 520.35(2)(d)--
Disclosure of finance charge and a description of its components. The 
finance charge disclosure is preempted in those transactions in which 
the amount of the finance charge is different from the Federal amount, 
since in such transactions the State law requires the use of the same 
term as the Federal law to represent a different amount. The requirement 
to describe or itemize the components of the finance charge, which is 
also included in these provisions, is not preempted.
 Sections 520.07(2)(h) and 520.34(2)(h)--Disclosure of total of 
payments. The total of payments disclosure is preempted in those 
transactions in which the amount differs from the amount of the Federal 
total of payments, since in such transactions the State law requires the 
use of the same term as the Federal law to represent a different amount 
than the Federal law.
 Sections 520.07(2)(i) and 520.34(2)(i)--Disclosure of deferred 
payment price. This disclosure is preempted in those transactions in 
which the amount is the same as the Federal total sale price, since in 
such transactions the State law requires the use of a different term 
than the Federal law to represent the same amount as the Federal law.

    10. Preemption determination--Missouri. Effective October 1, 1983, 
the Board has determined that the following provisions in the State law 
of Missouri are preempted by the Federal law:

 Sections 365.070-6(9) and 408.260-5(6)--Disclosure of principal 
balance. This disclosure is preempted in those transactions in which the 
amount of the principal balance is the same as the Federal amount 
financed, since in such transactions the State law requires the use of a 
term different from the Federal term to represent the same amount.
 Sections 365.070-6(10) and 408.260-5(7)--Disclosure of time 
price differential and time charge, respectively. These disclosures are 
preempted in those transactions in which the amount is the same as the 
Federal finance charge, since in such transactions the State law 
requires the use of a term different from the Federal law to represent 
the same amount.
 Sections 365.070-2 and 408.260-2--Use of the terms time price 
differential and time charge in certain notices to the buyer. In those 
transactions in which the State disclosure of the time price 
differential or time charge is preempted, the use of the terms in this 
notice also is preempted. The notice itself is not preempted.
 Sections 365.070-6(11) and 408.260-5(8)--Disclosure of time 
balance. The time balance disclosure is preempted in those transactions 
in which the amount is the same as the amount of the Federal total of 
payments, since in such transactions the State law requires the use of a 
different term than the Federal law to represent the same amount.
 Sections 365.070-6(12) and 408.260-5(9)--Disclosure of time 
sale price. This disclosure is preempted in those transactions in which 
the amount is the same as the Federal total sale price, since in such 
transactions the State law requires the use of a different term from the 
Federal law to represent the same amount.

    11. Preemption determination--Mississippi. Effective October 1, 
1984, the Board has determined that the following provision in the State 
law of Mississippi is preempted by the Federal law:
     Section 63-19-31(2)(g)--Disclosure of finance charge. This 
disclosure is preempted in those cases in which the term finance charge 
would be used under State law to describe a different amount than the 
finance charge disclosed under Federal law.
    12. Preemption determination--South Carolina. Effective October 1, 
1984, the Board has determined that the following provision in the State 
law of South Carolina is preempted by the Federal law.
     Section 37-10-102(c)--Disclosure of due-on-sale clause. 
This provision is preempted, but only to the extent that the creditor is 
required to include the disclosure with the segregated Federal 
disclosures. If the creditor may comply with the State law by placing 
the due-on-sale notice apart from the Federal disclosures, the state law 
is not preempted.
    13. Preemption determination--Arizona. Effective October 1, 1986, 
the Board has determined that the following provision in the State law 
of Arizona is preempted by the Federal law:

[[Page 410]]

     Section 6-621A.2--Use of the term the total sum of 
$________ in certain notices provided to borrowers. This term describes 
the same item that is disclosed under Federal law as the total of 
payments. Since the State law requires the use of a different term than 
Federal law to describe the same item, the State-required term is 
preempted. The notice itself is not preempted.

    (Note: The State disclosure notice that incorporated the above 
preempted term was amended on May 4, 1987, to provide that disclosures 
must now be made pursuant to the Federal disclosure provisions.)

    14. Preemption determination--Indiana. Effective October 1, 1988, 
the Board has determined that the following provision in the State law 
of Indiana is preempted by the Federal law:
     Section 23-2-5-8--Inclusion of the loan broker's fees and 
charges in the calculation of, among other items, the finance charge and 
annual percentage rate disclosed to potential borrowers. This disclosure 
is inconsistent with sections 106(a) and Sec. 226.4(a) of the Federal 
statute and regulation, respectively, and is preempted in those 
instances where the use of the same term would disclose a different 
amount than that required to be disclosed under Federal law.
    15. Preemption determination--Wisconsin. Effective October 1, 1991, 
the Board has determined that the following provisions in the state law 
of Wisconsin are preempted by the federal law:
     Section 422.308(1)--the disclosure of the annual percentage 
rate in cases where the amount of the annual percentage rate disclosed 
to consumers under the state law differs from the amount that would be 
disclosed under federal law, since in those cases the state law requires 
the use of the same term as the federal law to represent a different 
amount than the federal law.
     Section 766.565(5)--the provision permitting a creditor to 
include in an open-end home equity agreement authorization to declare 
the account balance due and payable upon receiving notice of termination 
from a non-obligor spouse, since such provision is inconsistent with the 
purpose of the federal law.
    28(b) Equivalent disclosure requirements.
    1. General. A state disclosure may be substituted for a Federal 
disclosure only after the Board has made a finding of substantial 
similarity. Thus, the creditor may not unilaterally choose to make a 
state disclosure in place of a Federal disclosure, even if it believes 
that the state disclosure is substantially similar. Since the rule 
stated in Sec. 226.28(b) does not extend to any requirement relating to 
the finance charge or annual percentage rate, no state provision on 
computation, description, or disclosure of these terms may be 
substituted for the Federal provision.

             28(d)  Special Rule for Credit and Charge Cards

    1. General. The standard that applies to preemption of state laws as 
they affect transactions of the type subject to Secs.  226.5a and 
226.9(e) differs from the preemption standards generally applicable 
under the Truth in Lending Act. The Fair Credit and Charge Card 
Disclosure Act fully preempts state laws relating to the disclosure of 
credit information in consumer credit or charge card applications or 
solicitations. (For purposes of this section, a single credit or charge 
card application or solicitation that may be used to open either an 
account for consumer purposes or an account for business purposes is 
deemed to be a ``consumer credit or charge card application or 
solicitation.'') For example, a state law requiring disclosure of credit 
terms in direct mail solicitations for consumer credit card accounts is 
preempted. A state law requiring disclosures in telephone applications 
for consumer credit card accounts also is preempted, even if it applies 
to applications initiated by the consumer rather than the issuer, 
because the state law relates to the disclosure of credit information in 
applications or solicitations within the general field of preemption, 
that is, consumer credit and charge cards.
    2. Limitations on field of preemption. Preemption under the Fair 
Credit and Charge Card Disclosure Act does not extend to state laws 
applying to types of credit other than open-end consumer credit and 
charge card accounts. Thus, for example, a state law is not preempted as 
it applies to disclosures in credit and charge card applications and 
solicitations solely for business-purpose accounts. On the other hand, 
state credit disclosure laws will not apply to a single application or 
solicitation to open either an account for consumer purposes or an 
account for business purposes. Such ``dual purpose'' applications and 
solicitations are treated as ``consumer credit or charge card 
applications or solicitations'' under this section and state credit 
disclosure laws applicable to them are preempted. Preemption under this 
statute does not extend to state laws applicable to home equity plans; 
preemption determinations in this area are based on the Home Equity Loan 
Consumer Protection Act, as implemented in Sec. 226.5b of the 
regulation.
    3. Laws not preempted. State laws relating to disclosures concerning 
credit and charge cards other than in applications, solicitations, or 
renewal notices are not preempted under Sec. 226.28(d). In addition, 
state laws regulating the terms of credit and charge card accounts are 
not preempted, nor are laws preempted that regulate the form or content 
of information unrelated to the information required to be disclosed 
under Secs. 226.5a and

[[Page 411]]

226.9(e). Finally, state laws concerning the enforcement of the 
requirements of Secs. 226.5a and 226.9(e) and state laws prohibiting 
unfair or deceptive acts or practices concerning credit and charge card 
applications, solicitations and renewals are not preempted. Examples of 
laws that are not preempted include:
     A state law that requires card issuers to offer a grace 
period or that prohibits certain fees in credit and charge card 
transactions.
     A state retail installment sales law or a state plain 
language law, except to the extent that it regulates the disclosure of 
credit information in applications, solicitations and renewals of 
accounts of the type subject to Secs. 226.5a and 226.9(e).
     A state law requiring notice of a consumer's rights under 
antidiscrimination or similar laws or a state law requiring notice about 
credit information available from state authorities.

                               References

    Statute: Sections 111 and 171 (a) and (c).
    Other sections: Appendix A.
    Previous regulation: Section 226.6 (b) and (c), and Interpretation 
Sec. 226.604.
    1981 changes: Section 226.28 implements amended section 111 of the 
Act. The test for preemption of state laws relating to disclosure and 
advertising is now whether the state law ``contradicts'' the Federal, 
rather than whether state requirements are ``different.''
    The revised regulation contains no counterpart to Sec. 226.6(c) of 
the previous regulation concerning placement of inconsistent 
disclosures. It also reflects the statutory amendment providing that 
once the Board determines that a state-required disclosure is 
inconsistent with Federal law, the creditor may not make the state 
disclosure.

                    Section 226.29--State Exemptions

    29(a) General rule.
    1. Classes eligible. The state determines the classes of 
transactions for which it will request an exemption, and makes its 
application for those classes. Classes might be, for example, all open-
end credit transactions, all open-end and closed-end transactions, or 
all transactions in which the creditor is a bank.
    2. Substantial similarity. The ``substantially similar'' standard 
requires that state statutory or regulatory provisions and state 
interpretations of those provisions be generally the same as the Federal 
Act and Regulation Z. This includes the requirement that state 
provisions for reimbursement to consumers for overcharges be at least 
equivalent to those required in section 108 of the act. A State will be 
eligible for an exemption even if its law covers classes of transactions 
not covered by the Federal law. For example, if a state's law covers 
agricultural credit, this will not prevent the Board from granting an 
exemption for consumer credit, even though agricultural credit is not 
covered by the Federal law.
    3. Adequate enforcement. The standard requiring adequate provision 
for enforcement generally means that appropriate state officials must be 
authorized to enforce the state law through procedures and sanctions 
comparable to those available to Federal enforcement agencies. 
Furthermore, state law must make adequate provision for enforcement of 
the reimbursement rules.
    4. Exemptions granted. Effective October 1, 1982, the Board has 
granted the following exemptions from portions of the revised Truth in 
Lending Act:

     Maine. Credit or lease transactions subject to the Maine 
Consumer Credit Code and its implementing regulations are exempt from 
chapters 2, 4 and 5 of the Federal Act. (The exemption does not apply to 
transactions in which a federally chartered institution is a creditor or 
lessor.)
     Connecticut. Credit transactions subject to the Connecticut 
Truth in Lending Act are exempt from chapters 2 and 4 of the Federal 
Act. (The exemption does not apply to transactions in which a federally 
chartered institution is a creditor.)
     Massachusetts. Credit transactions subject to the 
Massachusetts Truth in Lending Act are exempt from chapters 2 and 4 of 
the Federal Act. (The exemption does not apply to transactions in which 
a federally chartered institution is a creditor.)
     Oklahoma. Credit or lease transactions subject to the 
Oklahoma Consumer Credit Code are exempt from chapters 2 and 5 of the 
Federal Act. (The exemption does not apply to sections 132 through 135 
of the Federal Act, nor does it apply to transactions in which a 
federally chartered institution is a creditor or lessor.)
     Wyoming. Credit transactions subject to the Wyoming 
Consumer Credit Code are exempt from chapter 2 of the Federal Act. (The 
exemption does not apply to transactions in which a federally chartered 
institution is a creditor.)

    29(b) Civil liability.
    1. Not eligible for exemption. The provision that an exemption may 
not extend to sections 130 and 131 of the Act assures that consumers 
retain access to both Federal and State courts in seeking damages or 
civil penalties for violations, while creditors retain the defenses 
specified in those sections.

                               References

    Statute: Sections 108, 123, and 171(b).
    Other sections: Appendix B.
    Previous regulation: Section 226.12.
    1981 changes: The procedures that states must follow to seek 
exemptions are now located in an appendix. Exemptions under the

[[Page 412]]

previous regulation will be automatically revoked on April 1, 1982, when 
compliance with the new regulation is mandatory.

                   Section 226.30--Limitation on Rates

    1. Scope of coverage. The requirement of this section applies to 
consumer credit obligations secured by a dwelling (as dwelling is 
defined in Sec. 226.2(a)(19)) in which the annual percentage rate may 
increase after consummation (or during the term of the plan, in the case 
of open-end credit) as a result of an increase in the interest rate 
component of the finance charge--whether those increases are tied to an 
index or formula or are within a creditor's discretion. The section 
applies to credit sales as well as loans. Examples of credit obligations 
subject to this section include:

     Dwelling-secured credit obligations that require variable-
rate disclosures under the regulation because the interest rate may 
increase during the term of the obligation.
     Dwelling-secured open-end credit plans entered into before 
November 7, 1989 (the effective date of the home equity rules) that are 
not considered variable-rate obligations for purposes of disclosure 
under the regulation but where the creditor reserves the contractual 
right to increase the interest rate--periodic rate and corresponding 
annual percentage rate--during the term of the plan.

In contrast, credit obligations in which there is no contractual right 
to increase the interest rate during the term of the obligation are not 
subject to this section. Examples include:

     ``Shared-equity'' or ``shared-appreciation'' mortgage loans 
that have a fixed rate of interest and a shared-appreciation feature 
based on the consumer's equity in the mortgaged property. (The 
appreciation share is payable in a lump sum at a specified time.)
     Dwelling-secured fixed-rate closed-end balloon-payment 
mortgage loans and dwelling-secured fixed-rate open-end plans with a 
stated term that the creditor may renew at maturity. (Contrast with the 
renewable balloon-payment mortgage instrument described in comment 
17(c)(1)-11.)
     Dwelling-secured fixed rate closed-end multiple advance 
transactions in which each advance is disclosed as a separate 
transaction.
     ``Price level adjusted mortgages'' or other indexed 
mortgages that have a fixed rate of interest but provide for periodic 
adjustments to payments and the loan balance to reflect changes in an 
index measuring prices or inflation.

The requirement of this section does not apply to credit obligations 
entered into prior to December 9, 1987. Consequently, new advances under 
open-end credit plans existing prior to December 9, 1987, are not 
subject to this section.
    2. Refinanced obligations. On or after December 9, 1987, when a 
credit obligation is refinanced, as defined in Sec. 226.20(a), the new 
obligation is subject to this section if it is dwelling-secured and 
allows for increases in the interest rate.
    3. Assumptions. On or after December 9, 1987, when a credit 
obligation is assumed, as defined in Sec. 226.20(b), the obligation 
becomes subject to this section if it is dwelling-secured and allows for 
increases in the interest rate.
    4. Modifications of obligations. The modification of an obligation, 
regardless of when the obligation was entered into, is generally not 
covered by this section. For example, increasing the credit limit on a 
dwelling-secured, open-end plan with a variable interest rate entered 
into before the effective date of the rule does not make the obligation 
subject to this section. If, however, a security interest in a dwelling 
is added on or after December 9, 1987, to a credit obligation that 
allows for interest rate increases, the obligation becomes subject to 
this section. Similarly, if a variable interest rate feature is added to 
a dwelling-secured credit obligation, the obligation becomes subject to 
this section.
    5. Land trusts. In some states, a land trust is used in residential 
real estate transactions. (See discussion in comment 3(a)-8).) If a 
consumer-purpose loan that allows for interest rate increases is secured 
by an assignment of a beneficial interest in a land trust that holds 
title to a consumer's dwelling, that loan is subject to this section.
    6. Relationship to other sections. Unless otherwise provided for in 
the commentary to this section, other provisions of the regulation such 
as definitions, exemptions, rules and interpretations also apply to this 
section where appropriate. To illustrate:
     An adjustable interest rate business-purpose loan is not 
subject to this section even if the loan is secured by a dwelling 
because such credit extensions are not subject to the regulation. (See 
generally Sec. 226.3(a).)
     Creditors subject to this section are only those that fall 
within the definition of a creditor in Sec. 226.2(a)(17).
    7. Consumer credit contract. Creditors are required to specify a 
lifetime maximum interest rate in their credit contracts--the instrument 
that creates personal liability and generally contains the terms and 
conditions of the agreement (for example, a promissory note or home-
equity line of credit agreement). In some states, the signing of a 
commitment letter may create a binding obligation, for example, 
constituting consummation as defined in Sec. 226.2(a)(13). The maximum 
interest rate must be included in the credit contract, but a creditor 
may include the rate ceiling in the commitment instrument as well.

[[Page 413]]

    8. Manner of stating the maximum interest rate. The maximum interest 
rate must be stated in the credit contract either as a specific amount 
or in any other manner that would allow the consumer to easily 
ascertain, at the time of entering into the obligation, what the rate 
ceiling will be over the term of the obligation. For example, the 
following statements would be sufficiently specific:
     The maximum interest rate will not exceed X%.
     The interest rate will never be higher than X percentage 
points above the initial rate of Y%.
     The interest rate will not exceed X%, or X percentage 
points about [a rate to be determined at some future point in time], 
whichever is less.
     The maximum interest rate will not exceed X%, or the state 
usury ceiling, whichever is less.
    The following statements would not comply with this section:
     The interest rate will never be higher than X percentage 
points over the prevailing market rate.
     The interest rate will never be higher than X percentage 
points above [a rate to be determined at some future point in time].
     The interest rate will not exceed the state usury ceiling 
which is currently X%.
    A creditor may state the maximum rate in terms of a maximum annual 
percentage rate that may be imposed. Under an open-end credit plan, this 
normally would be the corresponding annual percentage rate. (See 
generally Sec. 226.6(a)(2).)
    9. Multiple interest rate ceilings. Creditors are not prohibited 
from setting multiple interest rate ceilings. For example, on loans with 
multiple variable-rate features, creditors may establish a maximum 
interest rate for each feature. To illustrate, in a variable-rate loan 
that has an option to convert to a fixed rate, a creditor may set one 
maximum interest rate for the initially imposed index-based variable-
rate feature and another for the conversion option. Of course, a 
creditor may establish one maximum interest rate applicable to all 
features.
    10. Interest rate charged after default. State law may allow an 
interest rate after default higher than the contract rate in effect at 
the time of default; however, the interest rate after default is subject 
to a maximum interest rate set forth in a credit obligation that is 
otherwise subject to this section. This rule applies only in situations 
in which a post-default agreement is still considered part of the 
original obligation.
    11. Increasing the maximum interest rate--general rule. Generally, a 
creditor may not increase the maximum interest rate originally set on a 
credit obligation subject to this section unless the consumer and the 
creditor enter into a new obligation. Therefore, under an open-end plan, 
a creditor may not increase the rate ceiling imposed merely because 
there is an increase in the credit limit. If an open-end plan is closed 
and another opened, a new rate ceiling may be imposed. Furthermore, 
where an open-end plan has a fixed maturity and a creditor renews the 
plan at maturity, or enters into a closed-end credit transaction, a new 
maximum interest rate may be set at that time. If the open-end plan 
provides for a repayment phase, the maximum interest rate cannot be 
increased when the repayment phase begins unless the agreement provided 
for such an increase. For a closed-end credit transaction, a new maximum 
interest rate may be set only if the transaction is satisfied and 
replaced by a new obligation. (The exceptions in Sec. 226.20(a)(1)-(5) 
which limit what transactions are considered refinancings for purposes 
of disclosure do not apply with respect to increasing a rate ceiling 
that has been imposed; if a transaction is satisfied and replaced, the 
rate ceiling may be increased.)
    12. Increasing the maximum interest rate--assumption of an 
obligation. If an obligation subject to this section is assumed by a new 
obligor and the original obligor is released from liability, the maximum 
interest rate set on the obligation may be increased as part of the 
assumption agreement. (This rule applies whether or not the transaction 
constitutes an assumption as defined in Sec. 226.20(b).)
    13. Transition rules. Under footnote 50, if creditors properly 
include the maximum rate in their credit contracts, creditors need not 
revise their Truth in Lending disclosure statement forms to add the 
disclosures about limitations on rate increases as part of the variable-
rate disclosures, until October 1, 1988. On or after that date, 
creditors must have the maximum rate set forth in their credit contracts 
and, where applicable, as part of their truth in lending disclosures in 
the manner prescribed in the applicable sections of the regulation.

                               References

    Statute: Competitive Equality Banking Act of 1987, Pub. L. No. 100-
86, 101 Stat. 552
    Other sections: Sections 226.6, 226.18, and 226.19
    Previous regulation: None
    1987 changes: This section implements section 1204 of the 
Competitive Equality Banking Act of 1987, Pub. L. No. 100-86, 101 Stat. 
552 which provides that, effective December 9, 1987, adjustable-rate 
mortgages must include a limitation on the interest rate that may apply 
during the term of the mortgage loan. An adjustable-rate mortgage loan 
is defined in section 1204 as ``any loan secured by a lien on a one-to-
four family dwelling unit, including a condominium unit, cooperative 
housing unit, or mobile home, where the loan is made pursuant to an 
agreement

[[Page 414]]

under which the creditor may, from time to time, adjust the rate of 
interest.'' The rule in this section incorporates section 1204 into 
Regulation Z and limits the scope of section 1204 to dwelling-secured 
consumer credit subject to the Truth in Lending Act, in which a creditor 
has the contractual right to increase the interest rate during the term 
of the credit obligation.

     Subpart E--Special Rules for Certain Home Mortgage Transactions

                      Section 226.31--General Rules

    31(c)  Timing of disclosure.
    Paragraph 31(c)(1)  Disclosures for certain closed-end home 
mortgages.
    1. Furnishing disclosures. Disclosures are considered furnished when 
received by the consumer.
    2. Pre-consummation waiting period. A creditor must furnish 
Sec. 226.32 disclosures at least three business days prior to 
consummation. Under Sec. 226.32, ``business day'' has the same meaning 
as the rescission rule in comment 2(a)(6)-2--all calendar days except 
Sundays and the federal legal holidays listed in 5 USC 6103(a). However, 
while the disclosure rule under Secs. 226.15 and 226.23 extends to 
midnight of the third business day, the rule under Sec. 226.32 does not. 
For example, under Sec. 226.32, if disclosures were provided on a 
Friday, consummation could occur any time on Tuesday, the third business 
day following receipt of the disclosures. If the timing of the 
rescission rule were to be used, consummation could not occur until 
after midnight on Tuesday.
    Paragraph 31(c)(1)(i)  Change in terms.
    1. Redisclosure required. Creditors must provide new disclosures 
when a change in terms makes disclosures previously provided under 
Sec. 226.32(c) inaccurate, including disclosures based on and labeled as 
an estimate. A change in terms may result from a formal written 
agreement or otherwise.
    Paragraph 31(c)(1)(ii)  Telephone disclosures.
    1. Telephone disclosures. Disclosures by telephone must be furnished 
at least three business days prior to consummation, calculated in accord 
with the timing rules under Sec. 226.31(c)(1).
    Paragraph 31(c)(1)(iii)  Consumer's waiver of waiting period before 
consummation.
    1. Modification or waiver. A consumer may modify or waive the right 
to the three-day waiting period only after receiving the disclosures 
required by Sec. 226.32 and only if the circumstances meet the criteria 
for establishing a bona fide personal financial emergency under 
Sec. 226.23(e). Whether these criteria are met is determined by the 
facts surrounding individual situations. The imminent sale of the 
consumer's home at foreclosure during the three-day period is one 
example of a bona fide personal financial emergency. Each consumer 
entitled to the three-day waiting period must sign the handwritten 
statement for the waiver to be effective.
    Paragraph 31(c)(2)  Disclosures for reverse mortgages.
    1. Business days. For purposes of providing reverse mortgage 
disclosures, ``business day'' has the same meaning as in comment 
31(c)(1)-2--all calendar days except Sundays and the federal legal 
holidays listed in 5 USC 6103(a). This means if disclosures are provided 
on a Friday, consummation could occur any time on Tuesday, the third 
business day following receipt of the disclosures.
    2. Open-end plans.  Disclosures for open-end reverse mortgages must 
be provided at least three business days before the first transaction 
under the plan (see Sec. 226.5(b)(1)).
    31(d)  Basis of disclosures and use of estimates.
    1. Redisclosure.  Section 226.31(d) allows the use of estimates when 
information necessary for an accurate disclosure is unknown to the 
creditor, provided that the disclosure is clearly identified as an 
estimate. For purposes of Subpart E, the rule in Sec. 226.31(c)(1)(i) 
requiring new disclosures when the creditor changes terms also applies 
to disclosures labeled as estimates.

   Section 226.32--Requirements for Certain Closed-End Home Mortgages

    32(a)  Coverage.
    Paragraph 32(a)(1)(i).
    1. Application date. An application is deemed received when it 
reaches the creditor in any of the ways applications are normally 
transmitted. (See Sec. 226.19(a).) For example, if a borrower applies 
for a 10-year loan on September 30 and the creditor counteroffers with a 
7-year loan on October 10, the application is deemed received in 
September and the creditor must measure the annual percentage rate 
against the appropriate Treasury security yield as of August 15. An 
application transmitted through an intermediary agent or broker is 
received when it reaches the creditor, rather than when it reaches the 
agent or broker. (See comment 19(b)-3 to determine whether a transaction 
involves an intermediary agent or broker.)
    2. When fifteenth not a business day. If the 15th day of the month 
immediately preceding the application date is not a business day, the 
creditor must use the yield as of the business day immediately preceding 
the 15th.
    3. Calculating annual percentage rates for variable-rate loans and 
discount loans. Creditors must use the rules set out in the commentary 
to Sec. 226.17(c)(1) in calculating the annual percentage rate for 
variable-rate loans (assume the rate in effect at the time of disclosure 
remains unchanged) and for discount, premium, and stepped-rate 
transactions (which must reflect composite annual percentage rates).

[[Page 415]]

    4. Treasury securities. To determine the yield on a Treasury 
security for the annual percentage rate test, creditors may use the 
Board's Selected Interest Rates (statistical release H-15) or the actual 
auction results. Treasury auctions are held at regular intervals for the 
different types of securities. These figures are published by major 
financial and metropolitan newspapers, and are also available from 
Federal Reserve Banks. Creditors must use the yield on the security that 
has the nearest maturity at issuance to the loan's maturity. For 
example, if a creditor must compare the annual percentage rate to 
Treasury securities with either seven-year or ten-year maturities, the 
annual percentage rate for an eight-year loan is compared with 
securities that have a seven-year maturity; the annual percentage rate 
for a nine-year loan is compared with securities that have a ten-year 
maturity. If the loan maturity is exactly halfway between, the annual 
percentage rate is compared with the Treasury security that has the 
lower yield. For example, if the loan has a maturity of 20 years and 
comparable securities have maturities of 10 years with a yield of 6.501 
percent and 30 years with a yield of 6.906 percent, the annual 
percentage rate is compared with 10 percentage points over the yield of 
6.501 percent, the lower of the two yields.
    Paragraph 32(a)(1)(ii).
    1. Total loan amount. For purposes of the ``points and fees'' test, 
the total loan amount is calculated by taking the amount financed, as 
determined according to Sec. 226.18(b), and deducting any cost listed in 
Sec. 226.32(b)(1)(iii) that is both included as points and fees under 
Sec. 226.32(b)(1) and financed by the creditor. Some examples follow, 
each using a $10,000 amount borrowed, a $300 appraisal fee, and $400 in 
points:
    i. If the consumer finances a $300 fee for a creditor-conducted 
appraisal and pays $400 in points at closing, the amount financed under 
Sec. 226.18(b) is $9,900 ($10,000 plus the $300 appraisal fee that is 
paid to and financed by the creditor, less $400 in prepaid finance 
charges). The $300 appraisal fee paid to the creditor is added to other 
points and fees under Sec. 226.32(b)(1)(iii). It is deducted from the 
amount financed ($9,900) to derive a total loan amount of $9,600.
    ii. If the consumer pays the $300 fee for the creditor-conducted 
appraisal in cash at closing, the $300 is included in the points and 
fees calculation because it is paid to the creditor. However, because 
the $300 is not financed by the creditor, the fee is not part of the 
amount financed under Sec. 226.18(b) ($10,000, in this case). The total 
loan amount is $9,600 ($10,000, less $400 in prepaid finance charges).
    iii. If the consumer finances a $300 fee for an appraisal conducted 
by someone other than the creditor or an affiliate, the $300 fee is not 
included with other points and fees under Sec. 226.32(b)(1)(iii). The 
amount financed under Sec. 226.18(b) is $9,900 ($10,000 plus the $300 
fee for an independently-conducted appraisal that is financed by the 
creditor, less the $400 paid in cash and deducted as prepaid finance 
charges).
    2. Annual adjustment of $400 amount. A mortgage loan is covered by 
Sec. 226.32 if the total points and fees payable by the consumer at or 
before loan consummation exceed the greater of $400 or 8 percent of the 
total loan amount. The $400 figure is adjusted annually by the Board; 
the adjusted figure becomes effective on January 1 of the following 
year. The adjusted figure for 1996 is $412, reflecting a 3.00 percent 
increase in the CPI-U from June 1994 to June 1995, rounded to the 
nearest whole dollar. The Board will publish adjustments after the June 
figures become available each year. The adjustment for the upcoming year 
will be included in any proposed commentary published in the fall, and 
incorporated into the commentary the following spring.

                           32(b)  Definitions

    Paragraph 32(b)(1)(i).
    1. General. Items defined as finance charges under Sec. 226.4(a) and 
226.(4)(b) are included under this paragraph as a component of the total 
``points and fees.'' Items excluded from the finance charge under other 
provisions of Sec. 226.4 are not included under paragraph 32(b)(1)(i), 
although a fee may be included in ``points and fees'' under paragraphs 
32(b)(1)(ii) and 32(b)(1)(iii).
    Paragraph 32(b)(1)(ii).
    1. Mortgage broker fees. In determining ``points and fees'' for 
purposes of this section, compensation paid by a consumer to a mortgage 
broker (directly or through the creditor for delivery to the broker) is 
included in the calculation whether or not the amount is disclosed as a 
finance charge. Mortgage broker fees that are not paid by the consumer 
are not included. Mortgage broker fees already included in the 
calculation as finance charges under Sec. 226.32(b)(1)(i) need not be 
counted again under Sec. 226.32(b)(1)(ii).
    2. Example. Section 226.32(b)(1)(iii) defines ``points and fees'' to 
include all items listed in Sec. 226.4(c)(7), other than amounts held 
for the future payment of taxes. An item listed in Sec. 226.4(c)(7) may 
be excluded from the ``points and fees'' calculation, however, if the 
charge is reasonable, the creditor receives no direct or indirect 
compensation from the charge, and the charge is not paid to an affiliate 
of the creditor. For example, a reasonable fee paid by the consumer to 
an independent, third-party appraiser may be excluded from the ``points 
and fees'' calculation (assuming no compensation is paid to the 
creditor). A fee paid by the consumer for an appraisal performed by the 
creditor must be included in the calculation, even though

[[Page 416]]

the fee may be excluded from the finance charge if it is bona fide and 
reasonable in amount.
    32(c)  Disclosures.
    1. Format. The disclosures must be clear and conspicuous but need 
not be in any particular type size or typeface, nor presented in any 
particular manner. The disclosures need not be a part of the note or 
mortgage document.
    Paragraph 32(c)(3)  Regular payment.
    1. General. The regular payment is the amount due from the borrower 
at regular intervals, such as monthly, bimonthly, quarterly, or 
annually. There must be at least two payments, and the payments must be 
in an amount and at such intervals that they fully amortize the amount 
owed. In disclosing the regular payment, creditors may rely on the rules 
set forth in Sec. 226.18(g); however, the amounts for voluntary items 
not agreed to by the consumer such as credit life insurance may not be 
included in the regular payment.
    i. If the loan has more than one payment level, the regular payment 
for each level must be disclosed. For example:
    A. In a 30-year graduated payment mortgage where there will be 
payments of $300 for the first 120 months, $400 for the next 120 months, 
and $500 for the last 120 months, each payment amount must be disclosed, 
along with the length of time that the payment will be in effect.
    B. If interest and principal are paid at different times, the 
regular amount for each must be disclosed.
    C. In discounted or premium variable-rate transactions where the 
creditor sets the initial interest rate and later rate adjustments are 
determined by an index or formula, the creditor must disclose both the 
initial payment based on the discount or premium and the payment that 
will be in effect thereafter. Additional explanatory material which does 
not detract from the required disclosures may accompany the disclosed 
amounts. For example, if a monthly payment is $250 for the first six 
months and then increases based on an index and margin, the creditor 
could use language such as the following: ``Your regular monthly payment 
will be $250 for six months. After six months your regular monthly 
payment will be based on an index and margin, which currently would make 
your payment $350. Your actual payment at that time may be higher or 
lower.''
    Paragraph 32(c)(4)  Variable-rate.
    1. Calculating ``worst-case'' payment example. Creditors may rely on 
instructions in Sec. 226.19(b)(2)(x) for calculating the maximum 
possible increases in rates in the shortest possible timeframe, based on 
the face amount of the note (not the hypothetical loan amount of $10,000 
required by Sec. 226.19(b)(2)(x)). The creditor must provide a maximum 
payment for each payment level, where a payment schedule provides for 
more than one payment level and more than one maximum payment amount is 
possible.

                           32(d)  Limitations

    Paragraph 32(d)(1)(i)  Balloon payment.
    1. Regular periodic payments. The repayment schedule for a 
Sec. 226.32 mortgage loan with a term of less than five years must fully 
amortize the outstanding principal balance through ``regular periodic 
payments.'' A payment is a ``regular periodic payment'' if it is not 
more than twice the amount of other payments.
    Paragraph 32(d)(2)  Negative amortization.
    1. Negative amortization. The prohibition against negative 
amortization in a mortgage covered by Sec. 226.32 does not preclude 
reasonable increases in the principal balance that result from events 
permitted by the legal obligation unrelated to the payment schedule. For 
example, when a consumer fails to obtain property insurance and the 
creditor purchases insurance, the creditor may add a reasonable premium 
to the consumer's principal balance, to the extent permitted by the 
legal obligation.
    Paragraph 32(d)(4)  Increased interest rate.
    1. Variable-rate transactions. The limitation on interest rate 
increases does not apply to rate increases resulting from changes in 
accordance with the legal obligation in a variable-rate transaction, 
even if the increase occurs after default by the consumer.
    Paragraph 32(d)(5)  Rebates.
    1. Calculation of refunds. The limitation applies only to refunds of 
precomputed (such as add-on) interest and not to any other charges that 
are considered finance charges under Sec. 226.4 (for example, points and 
fees paid at closing). The calculation of the refund of interest 
includes odd-days interest, whether paid at or after consummation.
    Paragraph 32(d)(6)  Prepayment penalties.
    1. State law. For purposes of computing a refund of unearned 
interest, if using the actuarial method defined by applicable state law 
results in a refund that is greater than the refund calculated by using 
the method described in section 933(d) of the Housing and Community 
Development Act of 1992, creditors should use the state law definition 
in determining if a refund is a prepayment penalty.
    32(d)(7)  Prepayment penalty exception.
    Paragraph 32(d)(7)(iii).
    1. Calculating debt-to-income ratio. ``Debt'' does not include 
amounts paid by the borrower in cash at closing or amounts from the loan 
proceeds that directly repay an existing debt. Creditors may consider 
combined debt-to-income ratios for transactions involving joint 
applicants.
    2. Verification. Verification of employment satisfies the 
requirement for payment records for employment income.
    32(e)  Prohibited acts and practices.

[[Page 417]]

    Paragraph 32(e)(1)  Repayment ability.
    1. Determining repayment ability. The information provided to the 
creditor in connection with Sec. 226.32(d)(7) may be used to show that 
the creditor considered the consumer's income and obligations before 
extending the credit. Any expected income can be considered by the 
creditor, except equity income that the consumer would obtain through 
the foreclosure of a mortgage covered by Sec. 226.32. For example, a 
creditor may use information about income other than regular salary or 
wages such as gifts, expected retirement payments, or income from 
housecleaning or childcare. The creditor also may use unverified income, 
as long as the creditor has a reasonable basis for believing that the 
income exists and will support the loan.
    Paragraph 32(e)(2)  Home-Improvement Contracts.
    Paragraph 32(e)(2)(i).
    1. Joint payees. If a creditor pays a contractor with an instrument 
jointly payable to the contractor and the consumer, the instrument must 
name as payee each consumer who is primarily obligated on the note.
    Paragraph 32(e)(3)  Notice to Assignee.
    1. Subsequent sellers or assignors. Any person, whether or not the 
original creditor, that sells or assigns a mortgage subject to this 
section must furnish the notice of potential liability to the purchaser 
or assignee.
    2. Format. While the notice of potential liability need not be in 
any particular format, the notice must be prominent. Placing it on the 
face of the note, such as with a stamp, is one means of satisfying the 
prominence requirement.

           Section 226.33--Requirements for Reverse Mortgages

    33(a)  Definition.
    1. Nonrecourse transaction. A nonrecourse reverse mortgage 
transaction limits the homeowner's liability to the proceeds of the sale 
of the home (or any lesser amount specified in the credit obligation). 
If a transaction structured as a closed-end reverse mortgage transaction 
allows recourse against the consumer, and the annual percentage rate or 
the points and fees exceed those specified under Sec. 226.32(a)(1), the 
transaction is subject to all the requirements of Sec. 226.32, including 
the limitations concerning balloon payments and negative amortization.
    Paragraph 33(a)(2).
    1. Default. Default is not defined by the statute or regulation, but 
rather by the legal obligation between the parties and state or other 
law.
    2. Definite term or maturity date. To meet the definition of a 
reverse mortgage transaction, a creditor cannot require any principal, 
interest, or shared appreciation or equity to be due and payable (other 
than in the case of default) until after the consumer's death, transfer 
of the dwelling, or the consumer ceases to occupy the dwelling as a 
principal dwelling. Some state laws require legal obligations secured by 
a mortgage to specify a definite maturity date or term of repayment in 
the instrument. Stating a definite maturity date or term of repayment in 
an obligation does not violate the definition of a reverse mortgage 
transaction if the maturity date or term of repayment used would in no 
case operate to cause maturity prior to the occurrence of any of the 
events recognized in the regulation. For example, a provision that 
allows a reverse mortgage loan to become due and payable only after the 
consumer's death, transfer, or cessation of occupancy, or after a 
specified term, but which automatically extends the term for consecutive 
periods as long as none of the events specified in this section had yet 
occurred would be permissible.
    33(c)  Projected total cost of credit.
    Paragraph 33(c)(1)  Costs to consumer.
    1. Costs and charges to consumer--relation to finance charge. All 
costs and charges to the consumer that are incurred in a reverse 
mortgage transaction are included in the projected total cost of credit, 
and thus in the total annual loan cost rates, whether or not the cost or 
charge is a finance charge under Sec. 226.4.
    2. Annuity costs. As part of the credit transaction, some creditors 
require or permit a consumer to purchase an annuity that immediately--or 
at some future time--supplements or replaces the creditor's payments. 
The amount paid by the consumer for the annuity is a cost to the 
consumer under this section, regardless of whether the annuity is 
purchased through the creditor or a third party, or whether the purchase 
is mandatory or voluntary.
    3. Disposition costs excluded. Disposition costs incurred in 
connection with the sale or transfer of the property subject to the 
reverse mortgage are not included in the costs to the consumer under 
this paragraph. (However, see the definition of Valn in appendix K 
to the regulation to determine the effect certain disposition costs may 
have on the total annual loan cost rates.)
    Paragraph 33(c)(2)  Payments to consumer.
    1. Payments upon a specified event. The projected total cost of 
credit should not reflect contingent payments in which a credit to the 
outstanding loan balance or a payment to the consumer's estate is made 
upon the occurrence of an event (for example, a ``death benefit'' 
payable if the consumer's death occurs within a certain period of time). 
Thus, the table of total annual loan cost rates required under 
Sec. 226.33(b)(2) would not reflect such payments. At its option, 
however, a creditor may put an asterisk, footnote, or similar type of 
notation in the table next to the applicable total annual loan cost 
rate, and state in the body of the note, apart from the table, the 
assumption upon which the

[[Page 418]]

total annual loan cost is made and any different rate that would apply 
if the contingent benefit were paid.
    Paragraph 33(c)(3)  Additional creditor compensation.
    1. Shared appreciation or equity. Any shared appreciation or equity 
that the creditor is entitled to receive pursuant to the legal 
obligation must be included in the total cost of a reverse mortgage 
loan. For example, if a creditor agrees to a reduced interest rate on 
the transaction in exchange for a portion of the appreciation or equity 
that may be realized when the dwelling is sold, that portion is included 
in the projected total cost of credit.
    Paragraph 33(c)(4)  Limitations on consumer liability.
    1. In general. Creditors must include any limitation on the 
consumer's liability (such as a nonrecourse limit or an equity 
conservation agreement) in the projected total cost of credit. These 
limits and agreements protect a portion of the equity in the dwelling 
for the consumer or the consumer's estate. For example, the following 
are limitations on the consumer's liability that must be included in the 
projected total cost of credit:
    i. A limit on the consumer's liability to a certain percentage of 
the projected value of the home.
    ii. A limit on the consumer's liability to the net proceeds from the 
sale of the property subject to the reverse mortgage.
    2. Uniform assumption for ``net proceeds'' recourse limitations. If 
the legal obligation between the parties does not specify a percentage 
for the ``net proceeds'' liability of the consumer, for purposes of the 
disclosures required by Sec. 226.33, a creditor must assume that the 
costs associated with selling the property will equal 7 percent of the 
projected sale price (see the definition of the Valn symbol under 
appendix K(b)(6)).

                    Appendix A--Effect on State Laws

    1. Who may make requests. Appendix A sets forth the procedures for 
preemption determinations. As discussed in Sec. 226.28, which contains 
the standards for preemption, a request for a determination of whether a 
state law is inconsistent with the requirements of chapters 1, 2, or 3 
may be made by creditors, states, or any interested party. However, only 
states may request and receive determinations in connection with the 
fair credit billing provisions of chapter 4.

                               References

    Statute: Sections 111 and 171(a).
    Other sections: Section 226.28.
    Previous regulation: Sections 226.6(b) and 226.70 (Supplement V, 
Section II).
    1981 changes: The procedures in appendix A were largely adapted from 
Supplement V, Section II of the previous regulation (Sec. 226.70), with 
changes made to streamline the procedures.

                      Appendix B--State Exemptions

    1. General. Appendix B sets forth the procedures for exemption 
applications. The exemption standards are found in Sec. 226.29 and are 
discussed in the commentary to that section.

                               References

    Statute: Sections 123 and 171(b).
    Other sections: Section 226.29.
    Previous regulation: Sections 226.12, 226.50 (Supplement II), 226.60 
(Supplement IV), and 226.70 (Supplement V, Section I).
    1981 changes: The procedures in appendix B represent a combination 
and streamlining of the procedures set forth in the supplements to the 
previous regulation.

              Appendix C--Issuance of Staff Interpretations

    1. General. This commentary is the vehicle for providing official 
staff interpretations. Individual interpretations generally will not be 
issued separately from the commentary.

                               References

    Statute: Sections 105 and 130(f).
    Other sections: None.
    Previous regulation: Section 226.1(d).
    1981 changes: Appendix C reflects the Board's intention that this 
commentary serve as the vehicle for interpreting the regulation, rather 
than individual interpretive letters.

             Appendix D--Multiple-Advance Construction Loans

    1. General rule. Appendix D provides a special procedure that 
creditors may use, at their option, to estimate and disclose the terms 
of multiple-advance construction loans when the amounts or timing of 
advances is unknown at consummation of the transaction. This appendix 
reflects the approach taken in Sec. 226.17(c)(6)(ii), which permits 
creditors to provide separate or combined disclosures for the 
construction period and for the permanent financing, if any; i.e., the 
construction phase and the permanent phase may be treated as one 
transaction or more than one transaction. Appendix D may also be used in 
multiple-advance transactions other than construction loans, when the 
amounts or timing of advances is unknown at consummation.
    2. Variable-rate multiple-advance loans. The hypothetical disclosure 
required in variable-rate transactions by Sec. 226.18(f)(1)(iv) is not 
required for multiple-advance loans disclosed pursuant to appendix D, 
part I.
    3. Calculation of the total of payments. When disclosures are made 
pursuant to appendix D, the total of payments may reflect either the

[[Page 419]]

sum of the payments or the sum of the amount financed and the finance 
charge.
    4. Annual percentage rate. Appendix D does not require the use of 
Volume I of the Board's Annual Percentage Rate Tables for calculation of 
the annual percentage rate. Creditors utilizing appendix D in making 
calculations and disclosures may use other computation tools to 
determine the estimated annual percentage rate, based on the finance 
charge and payment schedule obtained by use of the appendix.
    5. Interest reserves. In a multiple-advance construction loan, a 
creditor may establish an ``interest reserve'' to ensure that interest 
is paid as it accrues by designating a portion of the loan to be used 
for paying the interest that accrues on the loan. An interest reserve is 
not treated as a prepaid finance charge, whether the interest reserve is 
the same as or different from the estimated interest figure calculated 
under appendix D.
     If a creditor permits a consumer to make interest payments 
as they become due, the interest reserve should be disregarded in the 
disclosures and calculations under appendix D.
     If a creditor requires the establishment of an interest 
reserve and automatically deducts interest payments from the reserve 
amount rather than allow the consumer to make interest payments as they 
become due, the fact that interest will accrue on those interest 
payments as well as the other loan proceeds must be reflected in the 
calculations and disclosures. To reflect the effects of such 
compounding, a creditor should first calculate interest on the 
commitment amount (exclusive of the interest reserve) and then add the 
figure obtained by assuming that one-half of that interest is 
outstanding at the contract interest rate for the entire construction 
period. For example, using the example shown under paragraph A, part I 
of appendix D, the estimated interest would be $1,117.68 ($1093.75 plus 
an additional $23.93 calculated by assuming half of $1093.75 is 
outstanding at the contract interest rate for the entire construction 
period), and the estimated annual percentage rate would be 21.18%.

                               References

    Statute: None.
    Other sections: Sections 226.17 and 226.22.
    Previous regulation: Interpretation Sec. 226.813.
    1981 Changes: The use of appendix D is limited to multiple-advance 
loans for construction purposes or analogous types of transactions.

    Appendix E--Rules for Card Issuers That Bill on a Transaction-by-
                            Transaction Basis

    Statute: None.
    Previous regulation: Interpretation Sec. 226.709.
    Other sections: Sections 226.6 through 226.13, and 226.15.
    1981 changes: The rules in this appendix have been streamlined and 
clarified to indicate how certain card issuers that bill on a 
transaction basis may comply with the requirements of Subpart B.

  Appendix F--Annual Percentage Rate Computations for Certain Open-End 
                              Credit Plans

    1. Daily rate with specific transaction charge. If the finance 
charge results from a charge relating to a specific transaction and the 
application of a daily periodic rate, see comment 14(c)-6 for guidance 
on an appropriate calculation method.

                               References

    Statute: Section 107.
    Previous regulation: Section 226.5(a)(3)(ii), footnote 5(a).
    Other sections: Section 226.14.
    1981 changes: This appendix incorporates a sixth example in which 
the transaction amount exceeds the amount of the balance subject to the 
periodic rate.

   Appendices G and H--Open-End and Closed-End Model Forms and Clauses

    1. Permissible changes. Although use of the model forms and clauses 
is not required, creditors using them properly will be deemed to be in 
compliance with the regulation with regard to those disclosures. 
Creditors may make certain changes in the format or content of the forms 
and clauses and may delete any disclosures that are inapplicable to a 
transaction or a plan without losing the act's protection from 
liability. The rearrangement of the model forms and clauses may not be 
so extensive as to affect the substance, clarity, or meaningful sequence 
of the forms and clauses. Creditors making revisions with that effect 
will lose their protection from civil liability. Acceptable changes 
include, for example:

     Using the first person, instead of the second person, in 
referring to the borrower.
     Using ``borrower'' and ``creditor'' instead of pronouns.
     Rearranging the sequence of the disclosures.
     Not using bold type for headings.
     Incorporating certain state ``plain English'' requirements.
     Deleting inapplicable disclosures by whiting out, blocking 
out, filling in ``N/A'' (not applicable) or ``0'', crossing out, leaving 
blanks, checking a box for applicable items, or circling applicable 
items. (This should permit use of multi-purpose standard forms.)
     Substituting appropriate references, such as ``bank,'' 
``we,'' or a specific name, for ``creditor'' in the initial open-end 
disclosures.

[[Page 420]]

     Using a vertical, rather than a horizontal, format for the 
boxes in the closed-end disclosures.

              Appendix G--Open-End Model Forms and Clauses

    1. Model G-1. The model disclosures in G-1 (different balance 
computation methods) may be used in both the initial disclosures under 
Sec. 226.6 and the periodic disclosures under Sec. 226.7. As is clear 
from the models given, ``short-hand'' descriptions of the balance 
computation methods are not sufficient. The phrase ``a portion of'' the 
finance charge should be included if the total finance charge includes 
other amounts, such as transaction charges, that are not due to the 
application of a periodic rate. In addition, if unpaid finance charges 
are subtracted in calculating the balance, that fact must be stated so 
that the disclosure of the computation method is accurate. Only Model G-
1(b) contains a final sentence appearing in brackets which reflects the 
total dollar amount of payments and credits received during the billing 
cycle. The other models do not contain this language because they 
reflect plans in which payments and credits received during the billing 
cycle are subtracted. If this is not the case, however, the language 
relating to payments and credits should be changed, and the creditor 
should add either the disclosure of the dollar amount as in Model G-1(b) 
or an indication of which credits (disclosed elsewhere on the periodic 
statement) will not be deducted in determining the balance. (Such an 
indication may also substitute for the bracketed sentence in Model G-
1(b)). See the commentary to Sec. 226.7(e).
    2. Model G-2. This model contains the notice of liability for 
unauthorized use of a credit card.
    3. Models G-3 and G-4. These set out models for the long form 
billing error rights statement (for use with the initial disclosures and 
as an annual disclosure or, at the creditor's option, with each periodic 
statement) and the alternative billing error rights statement (for use 
with each periodic statement), respectively. Creditors must provide the 
billing error rights statements in a form substantially similar to the 
models in order to comply with the regulation. The model billing rights 
statements may be modified in any of the ways set forth in the first 
paragraph to the commentary on appendices G and H. The models may, 
furthermore, be modified by deleting inapplicable information, such as:

     The paragraph concerning stopping a debit in relation to a 
disputed amount, if the creditor does not have the ability to debit 
automatically the consumer's saving or checking account for payment.
     The rights stated in the special rule for credit card 
purchases and any limitations on those rights.

    The model billing rights statements also contain optional language 
that creditors may use. For example, the creditor may:

     Include a statement to the effect that notice of a billing 
error must be submitted on something other than the payment ticket or 
other material accompanying the periodic disclosures.
     Insert its address or refer to the address that appears 
elsewhere on the bill.

Additional information may be included on the statements as long as it 
does not detract from the required disclosures. For instance, 
information concerning the reporting of errors in connection with a 
checking account may be included on a combined statement as long as the 
disclosures required by the regulation remain clear and conspicuous.
    4. Models G-5 through G-9. These models set out notices of the right 
to rescind that would be used at different times in an open-end plan. 
The last paragraph of each of the rescission model forms contains a 
blank for the date by which the consumer's notice of cancellation must 
be sent or delivered. A parenthetical is included to address the 
situation in which the consumer's right to rescind the transaction 
exists beyond 3 business days following the date of the transaction, for 
example, when the notice or material disclosures are delivered late or 
when the date of the transaction in paragraph 1 of the notice is an 
estimate. The language of the parenthetical is not optional. See the 
commentary to section 226.2(a)(25) regarding the specificity of the 
security interest disclosure for model form G-7.
    5. Models G-10(A) through G-10(C). Models G-10(A) and G-10(B) 
illustrate the tabular format for providing the disclosures required 
under Sec. 226.5a for applications and solicitations for credit cards 
other than charge cards. Model G-10(A) illustrates the permissible 
inclusion in the tabular format of all of the disclosures. Model G-10(B) 
contains only the disclosures required to be included in the table, 
while the three additional disclosures are shown outside of the table. 
The two forms also illustrate two different levels of detail in 
disclosing the grace period, and different arrangements of the 
disclosures. Model G-10(C) illustrates the tabular format disclosure for 
charge card applications and solicitations and reflects all of the 
disclosures in the table. Disclosures may be arranged in an order 
different from that in model forms G-10 (A), (B), and (C); may be 
arranged vertically or horizontally; need not be highlighted aside from 
being included in the table; and are not required to be in any 
particular type size. Various features from different model forms may be 
combined; for example, the shorter grace period disclosure

[[Page 421]]

in model form G-10(B) may be used in any disclosure. While proper use of 
the model forms will be deemed in compliance with the regulation, card 
issuers are permitted to use headings and disclosures other than those 
in the forms (with an exception relating to the use of ``grace period'') 
if they are clear and concise and are substantially similar to the 
headings and disclosures contained in model forms. For further 
discussion of requirements relating to form, see the commentary to 
Sec. 226.5a(a)(2).
    6. Models G-11 and G-12. Model G-11 contains clauses that illustrate 
the general disclosures required under Sec. 226.5a(e) in applications 
and solicitations made available to the general public. Model G-12 is a 
model clause for the disclosure required under Sec. 226.5a(f) when a 
charge card accesses an open-end plan offered by another creditor.
    7. Models G-13(A) and G-13(B). These model forms illustrate the 
disclosures required under Sec. 226.9(f) when the card issuer changes 
the entity providing insurance on a credit card account. Model G-13(A) 
contains the items set forth in Sec. 226.9(f)(3) as examples of 
significant terms of coverage that may be affected by the change in 
insurance provider. The card issuer may either list all of these 
potential changes in coverage and place a check mark by the applicable 
changes, or list only the actual changes in coverage. Under either 
approach, the card issuer must either explain the changes or refer to an 
accompanying copy of the policy or group certificate for details of the 
new terms of coverage. Model G-13(A) also illustrates the permissible 
combination of the two notices required by Sec. 226.9(f)--the notice 
required for a planned change in provider and the notice required once a 
change has occurred. This form may be modified for use in providing only 
the disclosures required before the change if the card issuer chooses to 
send two separate notices. Thus, for example, the references to the 
attached policy or certificate would not be required in a separate 
notice prior to a change in the insurance provider since the policy or 
certificate need not be provided at that time. Model G-13(B) illustrates 
the disclosures required under Sec. 226.9(f)(2) when the insurance 
provider is changed.

             Appendix H--Closed-End Model Forms and Clauses

    1. Models H-1 and H-2. Creditors may make several types of changes 
to closed-end model forms H-1 (credit sale) and H-2 (loan) and still be 
deemed to be in compliance with the regulation, provided that the 
required disclosures are made clearly and conspicuously. Permissible 
changes include the addition of the information permitted by footnote 37 
to Sec. 226.17 and ``directly related'' information as set forth in the 
commentary to Sec. 226.17(a).
    The creditor may also delete or, on multi-purpose forms, indicate 
inapplicable disclosures, such as:
     The itemization of the amount financed option. (See Samples 
H-12 through H-15.)
     The credit life and disability insurance disclosures. (See 
Samples H-11 and H-12.)
     The property insurance disclosures. (See Samples H-10 
through H-12, and H-14.)
     The ``filing fees'' and ``non-filing insurance'' 
disclosures. (See Samples H-11 and H-12.)
     The prepayment penalty or rebate disclosures. (See Samples 
H-12 and H-14.)
     The total sale price. (See Samples H-11 through H-15.)
    Other permissible changes include:
     Adding the creditor's address or telephone number. (See the 
commentary to Sec. 226.18(a).)
     Combining required terms where several numerical 
disclosures are the same, for instance, if the ``total of payments'' 
equals the ``total sale price.'' (See the commentary to Sec. 226.18.)
     Rearranging the sequence or location of the disclosures--
for instance, by placing the descriptive phrases outside the boxes 
containing the corresponding disclosures, or by grouping the descriptors 
together as a glossary of terms in a separate section of the segregated 
disclosures; by placing the payment schedule at the top of the form; or 
by changing the order of the disclosures in the boxes, including the 
annual percentage rate and finance charge boxes.
     Using brackets, instead of checkboxes, to indicate 
inapplicable disclosures.
     Using a line for the consumer to initial, rather than a 
checkbox, to indicate an election to receive an itemization of the 
amount financed.
     Deleting captions for disclosures.
     Using a symbol, such as an asterisk, for estimated 
disclosures, instead of an ``e.''
     Adding a signature line to the insurance disclosures to 
reflect joint policies.
     Separately itemizing the filing fees.
     Revising the late charge disclosure in accordance with the 
commentary to Sec. 226.18(l).
    2. Model H-3. Creditors have considerable flexibility in filling out 
Model H-3 (itemization of the amount financed). Appropriate revisions, 
such as those set out in the commentary to Sec. 226.18(c), may be made 
to this form without loss of protection from civil liability for proper 
use of the model forms.
    3. Models H-4 through H-7. The model clauses are not included in the 
model forms although they are mandatory for certain transactions. 
Creditors using the model clauses when applicable to a transaction are 
deemed to be in compliance with the regulation with regard to that 
disclosure.
    4. Model H-4(A). This model contains the variable rate model clauses 
applicable to

[[Page 422]]

transactions subject to Sec. 226.18(f)(1) and is intended to give 
creditors considerable flexibility in structuring variable rate 
disclosures to fit individual plans. The information about 
circumstances, limitations, and effects of an increase may be given in 
terms of the contract interest rate or the annual percentage rate. 
Clauses are shown for hypothetical examples based on the specific amount 
of the transaction and based on a representative amount. Creditors may 
preprint the variable rate disclosures based on a representative amount 
for similar types of transactions, instead of constructing an 
individualized example for each transaction. In both representative 
examples and transaction-specific examples, creditors may refer either 
to the incremental change in rate, payment amount, or number of 
payments, or to the resulting rate, payment amount, or number of 
payments. For example, creditors may state that the rate will increase 
by 2%, with a corresponding $150 increase in the payment, or creditors 
may state that the rate will increase to 16%, with a corresponding 
payment of $850.
    5. Model H-4(B). This model clause illustrates the variable-rate 
disclosure required under Sec. 226.18(f)(2), which would alert consumers 
to the fact that the transaction contains a variable-rate feature and 
that disclosures were provided earlier.
    6. Model H-4(C). This model clause illustrates the early disclosures 
required generally under Sec. 226.19(b). It includes information on how 
the consumer's interest rate is determined and how it can change over 
the term of the loan, and explains changes that may occur in the 
borrower's monthly payment. The model clause also contains an example of 
how to disclose historical changes in the index or formula values used 
to compute interest rates for the preceding 15 years. In addition, the 
model clause illustrates the disclosure of the initial and maximum 
interest rates and payments for a loan originated at the most recent 
rate shown in the historical example.
    7. Model H-4(D). This model clause illustrates the adjustment notice 
required under Sec. 226.20(c), and provides examples of payment change 
notices and annual notices of interest rate changes.
    8. Model H-5. This contains the demand feature clause.
    9. Model H-6. This contains the assumption clause.
    10. Model H-7. This contains the required deposit clause.
    11. Models H-8 and H-9. These models contain the rescission notices 
for a typical closed-end transaction and a refinancing, respectively. 
The last paragraph of each model form contains a blank for the date by 
which the consumer's notice of cancellation must be sent or delivered. A 
parenthetical is included to address the situation in which the 
consumer's right to rescind the transaction exists beyond 3 business 
days following the date of the transaction, for example, where the 
notice or material disclosures are delivered late or where the date of 
the transaction in paragraph 1 of the notice is an estimate. The 
language of the parenthetical is not optional. See the commentary to 
section 226.2(a)(25) regarding the specificity of the security interest 
disclosure for model form H-9.
    12. Sample forms. The sample forms (H-10 through H-15) serve a 
different purpose than the model forms. The samples illustrate various 
ways of adapting the model forms to the individual transactions 
described in the commentary to appendix H. The deletions and 
rearrangments shown relate only to the specific transactions described. 
As a result, the samples do not provide the general protection from 
civil liability provided by the model forms and clauses.
    13. Sample H-10. This sample illustrates an automobile credit sale. 
The cash price is $7,500 with a downpayment of $1,500. There is an 8% 
add-on interest rate and a term of 3 years, with 36 equal monthly 
payments. The credit life insurance premium and the filing fees are 
financed by the creditor. There is a $25 credit report fee paid by the 
consumer before consummation, which is a prepaid finance charge.
    14. Sample H-11. This sample illustrates an installment loan. The 
amount of the loan is $5,000. There is a 12% simple interest rate and a 
term of 2 years. The date of the transaction is expected to be April 15, 
1981, with the first payment due on June 1, 1981. The first payment 
amount is labelled as an estimate since the transaction date is 
uncertain. The odd days' interest ($26.67) is collected with the first 
payment. The remaining 23 monthly payments are equal.
    15. Sample H-12. This sample illustrates a refinancing and 
consolidation loan. The amount of the loan is $5,000. There is a 15% 
simple interest rate and a term of 3 years. The date of the transaction 
is April 1, 1981, with the first payment due on May 1, 1981. The first 
35 monthly payments are equal, with an odd final payment. The credit 
disability insurance premium is financed. In calculating the annual 
percentage rate, the U.S. Rule has been used. Since an itemization of 
the amount financed is included with the disclosures, the statement 
regarding the consumer's option to receive an itemization is deleted.
    16. Samples H-13 through H-15. These samples illustrate various 
mortgage transactions. They assume that the mortgages are subject to the 
Real Estate Settlement Procedures Act (RESPA). As a result, no option 
regarding the itemization of the amount financed has been included in 
the samples, because providing the good faith estimates of

[[Page 423]]

settlement costs required by RESPA satisfies Truth in Lending's amount 
financed itemization requirement. (See footnote 39 to Sec. 226.18(c).)
    17. Sample H-13. This sample illustrates a mortgage with a demand 
feature. The loan amount is $44,900, payable in 360 monthly installments 
at a simple interest rate of 14.75%. The 15 days of interim interest 
($294.34) is collected as a prepaid finance charge at the time of 
consummation of the loan (April 15, 1981). In calculating the disclosure 
amounts, the minor irregularities provision in Sec. 226.17(c)(4) has 
been used. The property insurance premiums are not included in the 
payment schedule. This disclosure statement could be used for notes with 
the 7-year call option required by the Federal National Mortgage 
Association (FNMA) in states where due-on-sale clauses are prohibited.
    18. Sample H-14. This sample disclosure form illustrates the 
disclosures under Sec. 226.19(b) for a variable-rate transaction secured 
by the consumer's principal dwelling with a term greater than one year. 
The sample form shows a creditor how to adapt the model clauses in 
appendix H-4(C) to the creditor's own particular variable-rate program. 
The sample disclosure form describes the features of a specific 
variable-rate mortgage program and alerts the consumer to the fact that 
information on the creditor's other closed-end variable-rate programs is 
available upon request. It includes information on how the interest rate 
is determined and how it can change over time, and explains how the 
monthly payment can change based on a $10,000 loan amount, payable in 
360 monthly installments, based on historical changes in the values for 
the weekly average yield on U.S. Treasury Securities adjusted to a 
constant maturity of one year. Index values are measured as of the first 
week ending in July for the years 1977 through 1987. This reflects the 
requirement that the index history be based on values for the same date 
or period each year beginning with index values for 1977. The sample 
disclosure also illustrates the requirement under Sec. 226.19(b)(2)(x) 
that the initial and the maximum interest rates and payments be shown 
for a $10,000 loan originated at the most recent rate shown in the 
historical example. In the sample, the loan is assumed to have an 
initial interest rate of 9.71% (which was the interest rate in 1987 for 
the example shown) and to have 2 percentage point annual (and 5 
percentage point overall) interest rate limitations or caps. Thus, the 
maximum amount that the interest rate could rise under this program is 5 
percentage points higher than the 9.71% initial rate to 14.71%, and the 
monthly payment could rise from $85.62 to a maximum of $123.31. The loan 
would not reach the maximum interest rate until its fourth year because 
of the 2 percentage point annual rate limitations, and the maximum 
payment disclosed reflects the amortization of the loan during that 
period. The sample form also illustrates how to provide consumers with a 
method for calculating their actual monthly payment for a loan amount 
other than $10,000.
    19. Sample H-15. This sample illustrates a graduated payment 
mortgage with a 5-year graduation period and a 7\1/2\ percent yearly 
increase in payments. The loan amount is $44,900, payable in 360 monthly 
installments at a simple interest rate of 14.75%. Two points ($898), as 
well as an initial mortgage guarantee insurance premium of $225.00, are 
included in the prepaid finance charge. The mortgage guarantee insurance 
premiums are calculated on the basis of \1/4\ of 1% of the outstanding 
principal balance under an annual reduction plan. The abbreviated 
disclosure permitted under Sec. 226.18(g)(2) is used for the payment 
schedule for years 6 through 30. The prepayment disclosure refers to 
both penalties and rebates because information about penalties is 
required for the simple interest portion of the obligation and 
information about rebates is required for the mortgage insurance portion 
of the obligation.
    20. HRSA-500-1 9-82. Pursuant to section 113(a) of the Truth in 
Lending Act, Form HRSA-500-1 9-82 issued by the U.S. Department of 
Health and Human Services for certain student loans has been approved. 
The form may be used for all Health Education Assistance Loans (HEAL) 
with a variable interest rate that are interim student credit extensions 
as defined in Regulation Z.
    21. HRSA-500-2 9-82. Pursuant to section 113(a) of the Truth in 
Lending Act, Form HRSA-500-2 9-82 issued by the U.S. Department of 
Health and Human Services for certain student loans has been approved. 
The form may be used for all HEAL loans with a fixed interest rate that 
are interim student credit extensions as defined in Regulation Z.
    22. HRSA-502-1 9-82. Pursuant to section 113(a) of the Truth in 
Lending Act, Form HRSA-502-1 9-82 issued by the U.S. Department of 
Health and Human Services for certain student loans has been approved. 
The form may be used for all HEAL loans with a variable interest rate in 
which the borrower has reached repayment status and is making payments 
of both interest and principal.
    23. HRSA-502-2 9-82. Pursuant to section 113(a) of the Truth in 
Lending Act, Form HRSA-502-2 9-82 issued by the U.S. Department of 
Health and Human Services for certain student loans has been approved. 
The form may be used for all HEAL loans with a fixed interest rate in 
which the borrower has reached repayment status and is making payments 
of both interest and principal.

                               References

    Statute: Sections 105 and 130.

[[Page 424]]

    Other sections: Sections 226.6, 226.7, 226.9, 226.12, 226.15, 
226.18, and 226.23.
    Previous regulation: None.
    1981 changes: The model forms and clauses have no counterpart in the 
previous regulation.

                Appendix I--Federal Enforcement Agencies

    Statute: Section 108.
    Other sections: None.
    Previous regulation: Section 226.1(b).
    1981 changes: None.

 Appendix J--Annual Percentage Rate Computations for Closed-End Credit 
                              Transactions

    1. Use of appendix J. Appendix J sets forth the actuarial equations 
and instructions for calculating the annual percentage rate in closed-
end credit transactions. While the formulas contained in this appendix 
may be directly applied to calculate the annual percentage rate for an 
individual transaction, they may also be utilized to program calculators 
and computers to perform the calculations.
    2. Relation to Board tables. The Board's Annual Percentage Rate 
Tables also provide creditors with a calculation tool that applies the 
technical information in appendix J. An annual percentage rate computed 
in accordance with the instructions in the tables is deemed to comply 
with the regulation. Volume I of the tables may be used for credit 
transactions involving equal payment amounts and periods, as well as for 
transactions involving any of the following irregularities: odd first 
period, odd first payment and odd last payment. Volume II of the tables 
may be used for transactions that involve any type of irregularities. 
These tables may be obtained from any Federal Reserve Bank or from the 
Board in Washington, DC 20551, upon request.

                               References

    Statute: Section 107.
    Other sections: Section 226.22.
    Previous regulation: Section 226.40 (Supplement I).
    1981 changes: Paragraph (b)(2) has been revised to clarify that the 
term of the transaction never begins earlier than consummation of the 
transaction. Paragraph (b)(5)(vi) has been revised to permit creditors 
in single-advance, single-payment transactions in which the term is less 
than a year and is equal to a whole number of months, to use either the 
12-month method or the 365-day method to compute the number of unit-
periods per year.

    Appendix K--Total Annual Loan Cost Rate Computations for Reverse 
                          Mortgage Transactions

    1. General. The calculation of total annual loan cost rates under 
appendix K is based on the principles set forth and the estimation or 
``iteration'' procedure used to compute annual percentage rates under 
appendix J. Rather than restate this iteration process in full, the 
regulation cross-references the procedures found in appendix J. In other 
aspects the appendix reflects the special nature of reverse mortgage 
transactions. Special definitions and instructions are included where 
appropriate.
    (b) Instructions and equations for the total annual loan cost rate.
    (b)(5) Number of unit-periods between two given dates.
    1. Assumption as to when transaction begins. The computation of the 
total annual loan cost rate is based on the assumption that the reverse 
mortgage transaction begins on the first day of the month in which 
consummation is estimated to occur. Therefore, fractional unit-periods 
(used under appendix J for calculating annual percentage rates) are not 
used.
    (b)(9)  Assumption for discretionary cash advances.
    1. Amount of credit. Creditors should compute the total annual loan 
cost rates for transactions involving discretionary cash advances by 
assuming that 50 percent of the initial amount of the credit available 
under the transaction is advanced at closing or, in an open-end 
transaction, when the consumer becomes obligated under the plan. (For 
the purposes of this assumption, the initial amount of the credit is the 
principal loan amount less any costs to the consumer under section 
226.33(c)(1).)
    (b)(10)  Assumption for variable-rate reverse mortgage transactions.
    1. Initial discount or premium rate. Where a variable-rate reverse 
mortgage transaction includes an initial discount or premium rate, the 
creditor should apply the same rules for calculating the total annual 
loan cost rate as are applied when calculating the annual percentage 
rate for a loan with an initial discount or premium rate (see the 
commentary to Sec. 226.17(c)).
    (d)  Reverse mortgage model form and sample form.
    (d)(2)  Sample form.
    1. General. The ``clear and conspicuous'' standard for reverse 
mortgage disclosures does not require disclosures to be printed in any 
particular type size. Disclosures may be made on more than one page, and 
use both the front and the reverse sides, as long as the pages 
constitute an integrated document and the table disclosing the total 
annual loan cost rates is on a single page.

[[Page 425]]

 Appendix L--Assumed Loan Periods for Computations of Total Annual Loan 
                               Cost Rates

    1. General. The life expectancy figures used in appendix L are those 
found in the U.S. Decennial Life Tables for women, as rounded to the 
nearest whole year and as published by the U. S. Department of Health 
and Human Services. The figures contained in appendix L must be used by 
creditors for all consumers (men and women). Appendix L will be revised 
periodically by the Board to incorporate revisions to the figures made 
in the Decennial Tables.

    By order of the Board of Governors of the Federal Reserve System, 
acting through the Secretary of the Board under delegated authority, 
March 28, 1996.

[46 FR 50288, Oct. 9, 1981]

    Editorial Note: For Federal Register citations affecting supplement 
I of part 226, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



PART 227--UNFAIR OR DECEPTIVE ACTS OR PRACTICES (REGULATION AA)--Table of Contents




Sec.

                     Subpart A--Consumer Complaints

227.1  Definitions.
227.2  Consumer complaint procedure.

                    Subpart B--Credit Practices Rule

227.11  Authority, purpose, and scope.
227.12  Definitions.
227.13  Unfair credit contract provisions.
227.14  Unfair or deceptive practices involving cosigners.
227.15  Unfair late charges.
227.16  State exemptions.



                     Subpart A--Consumer Complaints

    Authority: Sec. 18(f), Federal Trade Commission Act, as amended by 
Pub. L. 93-637.



Sec. 227.1   Definitions.

    For the purposes of this part,1 unless the context indicates 
otherwise, the following definitions apply:
---------------------------------------------------------------------------

    1 The words this part, as used herein, mean title 12, chapter II, 
part 227 of the Code of Federal Regulations, cited as 12 CFR part 227 
and designated as Regulation AA.
---------------------------------------------------------------------------

    (a) Board means the Board of Governors of the Federal Reserve 
System.
    (b) Consumer complaint means an allegation by or on behalf of an 
individual, group of individuals, or other entity that a particular act 
or practice of a State member bank is unfair or deceptive, or in 
violation of a regulation issued by the Board pursuant to a Federal 
statute, or in violation of any other Act or regulation under which the 
bank must operate.
    (c) State member bank means a bank that is chartered by a State and 
is a member of the Federal Reserve System.
    (d) Unless the context indicates otherwise, bank shall be construed 
to mean a State member bank, and complaint to mean a consumer complaint.

[Reg. AA, 41 FR 44362, Oct. 8, 1976]



Sec. 227.2   Consumer complaint procedure.

    (a) Submission of complaints. (1) Any consumer having a complaint 
regarding a State member bank is invited to submit it to the Federal 
Reserve System. The complaint should be submitted in writing, if 
possible, and should include the following information:
    (i) A description of the act or practice that is thought to be 
unfair or deceptive, or in violation of existing law or regulation, 
including all relevant facts;
    (ii) The name and address of the bank that is the subject of the 
complaint; and
    (iii) The name and address of the complainant.
    (2) Consumer complaints should be made to:
    (i) The Director, Division of Consumer Affairs, Board of Governors 
of the Federal Reserve System, Washington, DC 20551; or
    (ii) The Federal Reserve Bank of the District in which the bank is 
located. The addresses of the Federal Reserve Banks are as follows:

Federal Reserve Bank of Boston, 30 Pearl Street, Boston, MA 02106.
Federal Reserve Bank of New York, 33 Liberty Street, New York, NY 10045.
Federal Reserve Bank of Philadelphia, 100 North 6th Street, 
Philadelphia, PA 19105.
Federal Reserve Bank of Cleveland, 1455 East Sixth Street, Cleveland, OH 
44101.
Federal Reserve Bank of Richmond, 100 North Ninth Street, Richmond, VA 
23261.

[[Page 426]]

Federal Reserve Bank of Chicago, 230 South La Salle Street, Chicago, IL 
60690.
Federal Reserve Bank of St. Louis, 411 Locust Street, St. Louis, MO 
63166.
Federal Reserve Bank of Minneapolis, 250 Marquette Street, Minneapolis, 
MN 55480.
Federal Reserve Bank of Kansas City, 925 Grand Avenue, Kansas City, MO 
64198.
Federal Reserve Bank of Dallas, 400 South Akard Street, Dallas, TX 
75222.
Federal Reserve Bank of Atlanta, 104 Marietta Street NW., Atlanta, GA 
30303.
Federal Reserve Bank of San Francisco, 400 Sansome Street, San 
Francisco, CA 94120.

    (b) Response to complaints. Within 15 business days of receipt of a 
written complaint by the Board or a Federal Reserve Bank, a substantive 
response or an acknowledgment setting a reasonable time for a 
substantive response will be sent to the individual making the 
complaint.
    (c) Referrals to other agencies. Complaints received by the Board or 
a Federal Reserve Bank regarding an act or practice of an institution 
other than a State member bank will be forwarded to the Federal agency 
having jurisdiction over that institution.

[Reg. AA, 41 FR 44362, Oct. 8, 1976, as amended at 42 FR 2950, Jan. 14, 
1977]



                    Subpart B--Credit Practices Rule

    Authority: 15 U.S.C. 57a.

    Source: Reg. AA, 50 FR 16697, Apr. 29, 1985, unless otherwise noted.



Sec. 227.11  Authority, purpose, and scope.

    (a) Authority. This subpart is issued by the Board under section 
18(f) of the Federal Trade Commission Act, 15 U.S.C. 57a(f) (section 
202(a) of the Magnuson-Moss Warranty--Federal Trade Commission 
Improvement Act, Pub. L. 93-637).
    (b) Purpose. Unfair or deceptive acts or practices in or affecting 
commerce are unlawful under section 5(a)(1) of the Federal Trade 
Commission Act, 15 U.S.C. 45(a)(1). This subpart defines unfair or 
deceptive acts or practices of banks in connection with extensions of 
credit to consumers.
    (c) Scope. This subpart applies to all banks and their subsidiaries, 
except savings banks that are members of the Federal Home Loan Bank 
System. Compliance is to be enforced by:
    (1) The Comptroller of the Currency, in the case of national banks, 
banks operating under the code of laws for the District of Columbia, and 
federal branches and federal agencies of foreign banks;
    (2) The Board of Governors of the Federal Reserve System, in the 
case of banks that are members of the Federal Reserve System (other than 
banks referred to in paragraph (c)(1) of this section), branches and 
agencies of foreign banks (other than federal branches, federal 
agencies, and insured state branches of foreign banks), commercial 
lending companies owned or controlled by foreign banks, and 
organizations operating under section 25 or 25A of the Federal Reserve 
Act; and
    (3) The Federal Deposit Insurance Corporation, in the case of banks 
insured by the Federal Deposit Insurance Corporation (other than banks 
referred to in paragraphs (c)(1) and (c)(2) of this section), and 
insured state branches of foreign banks.
    (d) The terms used in paragraph (c) of this section that are not 
defined in the Federal Trade Commission Act or in section 3(s) of the 
Federal Deposit Insurance Act (12 U.S.C. 1813(s)) shall have the meaning 
given to them in section 1(b) of the International Banking Act of 1978 
(12 U.S.C. 3101).

[Reg. AA, 50 FR 16697, Apr. 29, 1985, as amended at 57 FR 20401, May 13, 
1992]



Sec. 227.12  Definitions.

    For the purposes of this subpart, the following definitions apply:
    (a) Consumer means a natural person who seeks or acquires goods, 
services, or money for personal, family, or household use other than for 
the purchase of real property.
    (b)(1) Cosigner means a natural person who assumes liability for the 
obligation of a consumer without receiving goods, services, or money in 
return for the obligation, or, in the case of an open-end credit 
obligation, without receiving the contractual right to obtain extensions 
of credit under the account.
    (2) Cosigner includes any person whose signature is requested as a 
condition to granting credit to a consumer, or as a condition for 
forbearance on collection of a consumer's obligation that is in default. 
The term does

[[Page 427]]

not include a spouse whose signature is required on a credit obligation 
to perfect a security interest pursuant to state law.
    (3) A person who meets the definition in this paragraph is a 
cosigner, whether or not the person is designated as such on the credit 
obligation.
    (c) Earnings means compensation paid or payable to an individual or 
for the individual's account for personal services rendered or to be 
rendered by the individual, whether denominated as wages, salary, 
commission, bonus, or otherwise, including periodic payments pursuant to 
a pension, retirement, or disability program.
    (d) Household goods means clothing, furniture, appliances, linens, 
china, crockery, kitchenware, and personal effects of the consumer and 
the consumer's dependents. The term household goods does not include:
    (1) Works of art;
    (2) Electronic entertainment equipment (other than one television 
and one radio);
    (3) Items acquired as antiques; that is, items over one hundred 
years of age, including such items that have been repaired or renovated 
without changing their original form or character; and
    (4) Jewelry (other than wedding rings).
    (e) Obligation means an agreement between a consumer and a creditor.
    (f) Person means an individual, corporation, or other business 
organization.



Sec. 227.13  Unfair credit contract provisions.

    It is an unfair act or practice for a bank to enter into a consumer 
credit obligation that contains, or to enforce in a consumer credit 
obligation purchased by the bank, any of the following provisions:
    (a) Confession of judgment. A cognovit or confession of judgment 
(for purposes other than executory process in the State of Louisiana), 
warrant of attorney, or other waiver of the right of notice and the 
opportunity to be heard in the event of suit or process thereon.
    (b) Waiver of exemption. An executory waiver or a limitation of 
exemption from attachment, execution, or other process on real or 
personal property held, owned by, or due to the consumer, unless the 
waiver applies solely to property subject to a security interest 
executed in connection with the obligation.
    (c) Assignment of wages. An assignment of wages or other earnings 
unless:
    (1) The assignment by its terms is revocable at the will of the 
debtor;
    (2) The assignment is a payroll deduction plan or preauthorized 
payment plan, commencing at the time of the transaction, in which the 
consumer authorizes a series of wage deductions as a method of making 
each payment; or
    (3) The assignment applies only to wages or other earnings already 
earned at the time of the assignment.
    (d) Security interest in household goods. A nonpossessory security 
interest in household goods other than a purchase money security 
interest.



Sec. 227.14  Unfair or deceptive practices involving cosigners.

    (a) Prohibited practices. In connection with the extension of credit 
to consumers, it is:
    (1) A deceptive act or practice for a bank to misrepresent the 
nature or extent of cosigner liability to any person; and
    (2) An unfair act or practice for a bank to obligate a cosigner 
unless the cosigner is informed prior to becoming obligated of the 
nature of the cosigner's liability.
    (b) Disclosure requirement. (1) A clear and conspicuous disclosure 
statement shall be given in writing to the cosigner prior to becoming 
obligated. The disclosure statement shall be substantially similar to 
the following statement and shall either be a separate document or 
included in the documents evidencing the consumer credit obligation.

                           Notice to Cosigner

    You are being asked to guarantee this debt. Think carefully before 
you do. If the borrower doesn't pay the debt, you will have to. Be sure 
you can afford to pay if you have to, and that you want to accept this 
responsibility.
    You may have to pay up to the full amount of the debt if the 
borrower does not pay. You may also have to pay late fees or collection 
costs, which increase this amount.

[[Page 428]]

    The bank can collect this debt from you without first trying to 
collect from the borrower. The bank can use the same collection methods 
against you that can be used against the borrower, such as suing you, 
garnishing your wages, etc. If this debt is ever in default, that fact 
may become a part of your credit record.
    This notice is not the contract that makes you liable for the debt.

    (2) In the case of open-end credit, the disclosure statement shall 
be given to the cosigner prior to the time that the cosigner becomes 
obligated for fees or transactions on the account.
    (3) A bank that is in compliance with this paragraph may not be held 
in violation of paragraph (a)(2) of this section.



Sec. 227.15  Unfair late charges.

    (a) In connection with collecting a debt arising out of an extension 
of credit to a consumer, it is an unfair act or practice for a bank to 
levy or collect any delinquency charge on a payment, when the only 
delinquency is attributable to late fees or delinquency charges assessed 
on earlier installments, and the payment is otherwise a full payment for 
the applicable period and is paid on its due date or within an 
applicable grace period.
    (b) For the purposes of this section, collecting a debt means any 
activity, other than the use of judicial process, that is intended to 
bring about or does bring about repayment of all or part of money due 
(or alleged to be due) from a consumer.



Sec. 227.16  State exemptions.

    (a) General rule. (1) An appropriate state agency may apply to the 
Board for a determination that:
    (i) There is a state requirement or prohibition in effect that 
applies to any transaction to which a provision of this subpart applies; 
and
    (ii) The state requirement or prohibition affords a level of 
protection to consumers that is substantially equivalent to, or greater 
than, the protection afforded by this subpart.
    (2) If the Board makes such a determination, the provision of this 
subpart will not be in effect in that state to the extent specified by 
the Board in its determination, for as long as the state administers and 
enforces the state requirement or prohibition effectively.
    (b) Applications. The procedures under which a state agency may 
apply for an exemption under this section are the same as those set 
forth in appendix B to Regulation Z (12 CFR part 226).



PART 228--COMMUNITY REINVESTMENT (REGULATION BB)--Table of Contents




Sec.
228.1--228.2  [Reserved]
228.3  Delineation of community.
228.4  Community Reinvestment Act Statement.
228.5  Files of public comments and recent CRA Statements.
228.6  Public notice.
228.7  Assessing the record of performance.

                           Subpart A--General

228.11  Authority, purposes, and scope.
228.12  Definitions.

             Subpart B--Standards for Assessing Performance

228.21  Performance tests, standards, and ratings, in general.
228.22  Lending test.
228.23  Investment test.
228.24  Service test.
228.25  Community development test for wholesale or limited purpose 
          banks.
228.26  Small bank performance standards.
228.27  Strategic plan.
228.28  Assigned ratings.
228.29  Effect of CRA performance on applications.

       Subpart C--Records, Reporting, and Disclosure Requirements

228.41  Assessment area delineation.
228.42  Data collection, reporting, and disclosure.
228.43  Content and availability of public file.
228.44  Public notice by banks.
228.45  Publication of planned examination schedule.

                       Subpart D--Transition Rules

228.51  Transition rules.

                     Appendix A to Part 228--Ratings

                   Appendix B to Part 228--CRA Notice

    Authority: 12 U.S.C. 321, 325, 1828(c), 1842, 1843, 1844, and 2901 
et seq.

    Source: 43 FR 47148, Oct. 12, 1978, unless otherwise noted.

[[Page 429]]

Secs. 228.1--228.2  [Reserved]



Sec. 228.3  Delineation of community.

    (a) Each State member bank shall prepare, and at least annually 
review, a delineation of the local community or communities that 
comprise its entire community, without excluding low- and moderate-
income neighborhoods. Maps shall be used to portray community 
delineations. The reasonableness of the delineations will be reviewed by 
Federal Reserve System examiners.
    (b) Except as provided in paragraph (c) of this section, a local 
community consists of the contiguous areas surrounding each office or 
group of offices, including any low- and moderate-income neighborhoods 
in those areas. More than one office of a State member bank may be 
included in the same local community. Unless the Board determines 
otherwise, a community delineation need not take account of an off-
premises electronic facility that receives deposits for more than one 
depository institution. In preparing its delineation, a bank may use any 
one of the three bases set forth below.
    (1) Existing boundaries such as those of standard metropolitan 
statistical areas (SMSA's) or counties in which the bank's office or 
offices are located may be used to delineate a local community. Where 
appropriate, portions of adjacent areas should be included. The bank may 
make adjustments in the case of areas divided by State borders or 
significant geographic barriers, or areas that are extremely large or of 
unusual configuration. In addition, a small bank may delineate those 
portions of SMSA's or counties it reasonably may be expected to serve.
    (2) A bank may use its effective lending territory, which is defined 
as that local area or areas around each office or group of offices where 
it makes a substantial portion of its loans and all other areas 
equidistant from its offices as those areas. Adjustments such as those 
indicated in paragraph (b)(1) of this section may be made.
    (3) A bank may use any other reasonably delineated local area that 
meets the purposes of the Community Reinvestment Act (CRA) and does not 
exclude low- and moderate-income neighborhoods.
    (c) A State member bank whose business predominantly consists of 
serving persons who are active duty or retired military personnel or 
their dependents and who are located outside of its local community or 
communities, may delineate a military community for those customers, in 
addition to its local community or communities. Provisions of this part 
concerning local communities shall also apply to military communities, 
except that military communities shall be delineated by a written 
description rather than a map.

(Sec. 803, Pub. L. 95-128, as amended by sec. 1502, Pub. L. 95-630, 92 
Stat. 3713 (12 U.S.C. 2902))

[43 FR 47148, Oct. 12, 1978, as amended at 44 FR 18165, Mar. 27, 1979]

    Effective Date Note: At 60 FR 22201, May 4, 1995, Sec. 228.3 was 
removed, effective July 1, 1997.



Sec. 228.4  Community Reinvestment Act Statement.

    (a) Within 90 days after the effective date of this part, the board 
of directors of each State member bank shall adopt a Community 
Reinvestment Act (CRA) Statement for each delineated local community.
    (b) Each CRA Statement shall include at least the following:
    (1) The delineation of the local community;
    (2) A list of specific types of credit within certain categories, 
such as residential loans for 1- to 4-dwelling units, residential loans 
for 5 dwelling units and over, housing rehabilitation loans, home 
improvement loans, small business loans, farm loans, community 
development loans, commerical loans, and consumer loans, that the bank 
is prepared to extend within the local community; and
    (3) A copy of the Community Reinvestment Act Notice provided for in 
Sec. 228.6.
    (c) Each State member bank is encouraged to include the following in 
each CRA Statement:
    (1) A description of how its current efforts, including special 
credit-related programs, help to meet community credit needs;
    (2) A periodic report regarding its record of helping to meet 
community credit needs; and

[[Page 430]]

    (3) A description of its efforts to ascertain the credit needs of 
its community, including efforts to communicate with members of its 
community regarding credit services.
    (d) Each State member bank's board of directors shall review each 
CRA Statement at least annually and shall act upon any material change 
made in the interim at its first regular meeting after the change. Such 
actions shall be noted in its minutes.
    (e) Each current CRA Statement shall be readily available for public 
inspection:
    (1) At the head office of the bank; and
    (2) At each office of the bank in the local community delineated in 
the Statement, except off-premises electronic deposit facilities.
    (f) Copies of each current CRA statement shall be provided to the 
public upon request. A state member bank may charge a reasonable fee not 
to exceed the cost of reproduction and mailing (if applicable).

[43 FR 47148, Oct. 12, 1978, as amended at 55 FR 26627, June 28, 1990]

    Effective Date Note: At 60 FR 22201, May 4, 1995, Sec. 228.4 was 
removed, effective July 1, 1997.



Sec. 228.5  Files of public comments and recent CRA Statements.

    (a) Each State member bank shall maintain files that are readily 
available for public inspection consisting of:
    (1) Any signed, written comments received from the public within the 
past 2 years that specifically relate to any CRA Statement or to the 
bank's performance in helping to meet the credit needs of its community 
or communities;
    (2) A copy of the public section of the most recent CRA Performance 
Evaluation prepared by the appropriate Federal Reserve Bank on behalf of 
the Board of Governors of the Federal Reserve System (the format and 
content of the bank's CRA Performance Evaluation, as prepared and 
transmitted to the state member bank by the appropriate Federal Reserve 
Bank may not be altered or abridged in any manner). The state member 
bank must place this copy in the public file within 30 business days 
after its receipt from the appropriate Federal Reserve Bank.
    (3) Any response to the comments under paragraph (a)(1) of this 
section that the bank wishes to make; and
    (4) Any CRA statements in effect during the past 2 years.
    (b) These files shall not contain any comments or responses that 
reflect adversely upon the good name or reputation of any person other 
than the bank, or publication of which would violate specific provisions 
of law.
    (c) These files shall be maintained by each State member bank as 
follows:
    (1) All materials at the head office;
    (2) Materials relating to each local community, at a designated 
office in that community; and
    (3) The most recent CRA Performance Evaluation shall, at a minimum, 
be available at the head office and at an office in each local community 
so designated under paragraph (c)(2) of this section. The bank may 
respond to the CRA Performance Evaluation and may make the response 
available in the same manner as the CRA Performance Evaluation.
    (d) State member banks shall provide copies of the public section of 
their most recent CRA Performance Evaluation to the public upon request. 
A state member bank may charge a reasonable fee not to exceed the cost 
of reproduction and mailing (if applicable).

[43 FR 47148, Oct. 12, 1978, as amended at 55 FR 26627, June 28, 1990; 
56 FR 26902, June 12, 1991]

    Effective Date Note: At 60 FR 22201, May 4, 1995, Sec. 228.5 was 
removed, effective July 1, 1997.



Sec. 228.6  Public notice.

    (a) Each state member bank shall provide, in the public lobby of 
each of its offices other than off-premises electronic deposit 
facilities, the public notice set forth below. Bracketed material shall 
be used only by banks having more than one local community. The last 
item shall be included only if the state member bank is a subsidiary of 
a holding company that is not prevented by statute from acquiring 
additional banks.

                    Community Reinvestment Act Notice

    The Federal Community Reinvestment Act (CRA) requires the Federal 
Reserve Board to evaluate our performance in helping to meet

[[Page 431]]

the credit needs of this community, and to take this evaluation into 
account when the Board decides on certain applications submitted by us. 
Your involvement is encouraged.
    You should know that:
      You may obtain our current CRA Statement for this community in 
this office. [Current CRA Statements for other communities served by us 
are available at our head office, located at (address).]
      You may send signed, written comments about our CRA Statement[s] 
or our performance in helping to meet community credit needs to (title 
and address of State member bank official) and to Community Reinvestment 
Officer, Federal Reserve Bank of ---------- (address). Your letter, 
together with any response by us, may be made public.
      You may look at a file of all signed, written comments received by 
us within the past 2 years, any responses we have made to the comments, 
and all CRA Statements in effect during the past 2 years at our office 
located at (address). [You also may look at the file about this 
community at (name and address of designated office).]
      You may ask to look at any comments received by the Federal 
Reserve Bank of ----------.
      You also may request from the Federal Reserve Bank of ---------- 
an announcement of applications covered by the CRA filed with the 
Federal Reserve System.
      We are a subsidiary of (name of holding company), a bank holding 
company. Applications filed by bank holding companies that are covered 
by the CRA are included in the Federal Reserve announcement of 
applications referred to in the previous paragraph.
    (b) Within 30 business days of receipt of its first publicly 
available, written CRA Performance Evaluation, each state member bank 
shall add language to the public CRA Notice as follows:

      You may obtain the public section of our most recent CRA 
Performance Evaluation, which was prepared by the Federal Reserve Bank 
of ____________ at (address of head office) [if the state member bank 
has more than one local community, each office (other than off-premises 
electronic deposit facilities) in that community shall include the 
address of the designated office for that community].

[43 FR 47148, Oct. 12, 1978, as amended at 55 FR 26627, June 28, 1990]

    Effective Date Note: At 60 FR 22201, May 4, 1995, Sec. 228.6 was 
removed, effective July 1, 1997.



Sec. 228.7  Assessing the record of performance.

    In connection with its examination of a State member bank, the Board 
shall assess the record of performance of the bank in helping to meet 
the credit needs of its entire community, including low- and moderate-
income neighborhoods, consistent with safe and sound operation of the 
bank. The Board will review the bank's CRA Statement(s) and any signed, 
written comments retained by the State member bank or the Federal 
Reserve Bank. In addition, the Board will consider the following factors 
in assessing a bank's record of performance:
    (a) Activities conducted by the State member bank to ascertain the 
credit needs of its community, including the extent of the bank's 
efforts to communicate with members of its community regarding the 
credit services being provided by the bank;
    (b) The extent of the State member bank's marketing and special 
credit-related programs to make members of the community aware of the 
credit services offered by the bank;
    (c) The extent of participation by the State member bank's board of 
directors in formulating the bank's policies and reviewing its 
performance with respect to the purposes of the Community Reinvestment 
Act;
    (d) Any practices intended to discourage applications for types of 
credit set forth in the State member bank's CRA Statement(s);
    (e) The geographic distribution of the State member bank's credit 
extensions, credit applications, and credit denials;
    (f) Evidence of prohibited discriminatory or other illegal credit 
practices;
    (g) The State member bank's record of opening and closing offices 
and providing services at offices;
    (h) The State member bank's participation, including investments, in 
local community development and redevelopment projects or programs;
    (i) The State member bank's origination of residential mortgage 
loans, housing rehabilitation loans, home improvement loans, and small 
business or small farm loans within its community, or the purchase of 
such loans originated in its community;

[[Page 432]]

    (j) The State member bank's participation in governmentally-insured, 
guaranteed, or subsidized loan programs for housing, small businesses or 
small farms;
    (k) The State member bank's ability to meet various community credit 
needs based on its financial condition and size, and legal impediments, 
local economic conditions and other factors; and
    (l) Other factors that, in the Board's judgment, reasonably bear 
upon the extent to which a State member bank is helping to meet the 
credit needs of its entire community.

    Effective Date Note: At 60 FR 22201, May 4, 1995, Sec. 228.7 was 
removed, effective July 1, 1997.



                           Subpart A--General

    Source: Reg. BB, 60 FR 22190, May 4, 1995, unless otherwise noted.



Sec. 228.11  Authority, purposes, and scope.

    (a) Authority. The Board of Governors of the Federal Reserve System 
(the Board) issues this part to implement the Community Reinvestment Act 
(12 U.S.C. 2901 et seq.) (CRA). The regulations comprising this part are 
issued under the authority of the CRA and under the provisions of the 
United States Code authorizing the Board:
    (1) To conduct examinations of State-chartered banks that are 
members of the Federal Reserve System (12 U.S.C. 325);
    (2) To conduct examinations of bank holding companies and their 
subsidiaries (12 U.S.C. 1844); and
    (3) To consider applications for:
    (i) Domestic branches by State member banks (12 U.S.C. 321);
    (ii) Mergers in which the resulting bank would be a State member 
bank (12 U.S.C. 1828(c));
    (iii) Formations of, acquisitions of banks by, and mergers of, bank 
holding companies (12 U.S.C. 1842); and
    (iv) The acquisition of savings associations by bank holding 
companies (12 U.S.C. 1843).
    (b) Purposes. In enacting the CRA, the Congress required each 
appropriate Federal financial supervisory agency to assess an 
institution's record of helping to meet the credit needs of the local 
communities in which the institution is chartered, consistent with the 
safe and sound operation of the institution, and to take this record 
into account in the agency's evaluation of an application for a deposit 
facility by the institution. This part is intended to carry out the 
purposes of the CRA by:
    (1) Establishing the framework and criteria by which the Board 
assesses a bank's record of helping to meet the credit needs of its 
entire community, including low- and moderate-income neighborhoods, 
consistent with the safe and sound operation of the bank; and
    (2) Providing that the Board takes that record into account in 
considering certain applications.
    (c) Scope--(1) General. This part applies to all banks except as 
provided in paragraph (c)(3) of this section.
    (2) Foreign bank acquisitions. This part also applies to an 
uninsured State branch (other than a limited branch) of a foreign bank 
that results from an acquisition described in section 5(a)(8) of the 
International Banking Act of 1978 (12 U.S.C. 3103(a)(8)). The terms 
``State branch'' and ``foreign bank'' have the same meanings as in 
section 1(b) of the International Banking Act of 1978 (12 U.S.C. 3101 et 
seq.); the term ``uninsured State branch'' means a State branch the 
deposits of which are not insured by the Federal Deposit Insurance 
Corporation; the term ``limited branch'' means a State branch that 
accepts only deposits that are permissible for a corporation organized 
under section 25A of the Federal Reserve Act (12 U.S.C. 611 et seq.).
    (3) Certain special purpose banks. This part does not apply to 
special purpose banks that do not perform commercial or retail banking 
services by granting credit to the public in the ordinary course of 
business, other than as incident to their specialized operations. These 
banks include banker's banks, as defined in 12 U.S.C. 24 (Seventh), and 
banks that engage only in one or more of the following activities: 
providing cash management controlled disbursement services or serving as 
correspondent banks, trust companies, or clearing agents.

[[Page 433]]



Sec. 228.12  Definitions.

    For purposes of this part, the following definitions apply:
    (a) Affiliate means any company that controls, is controlled by, or 
is under common control with another company. The term ``control'' has 
the meaning given to that term in 12 U.S.C. 1841(a)(2), and a company is 
under common control with another company if both companies are directly 
or indirectly controlled by the same company.
    (b) Area median income means:
    (1) The median family income for the MSA, if a person or geography 
is located in an MSA; or
    (2) The statewide nonmetropolitan median family income, if a person 
or geography is located outside an MSA.
    (c) Assessment area means a geographic area delineated in accordance 
with Sec. 228.41.
    (d) Automated teller machine (ATM) means an automated, unstaffed 
banking facility owned or operated by, or operated exclusively for, the 
bank at which deposits are received, cash dispersed, or money lent.
    (e) Bank means a State member bank as that term is defined in 
section 3(d)(2) of the Federal Deposit Insurance Act (12 U.S.C. 
1813(d)(2)), except as provided in Sec. 228.11(c)(3), and includes an 
uninsured State branch (other than a limited branch) of a foreign bank 
described in Sec. 228.11(c)(2).
    (f) Branch means a staffed banking facility approved as a branch, 
whether shared or unshared, including, for example, a mini-branch in a 
grocery store or a branch operated in conjunction with any other local 
business or nonprofit organization.
    (g) CMSA means a consolidated metropolitan statistical area as 
defined by the Director of the Office of Management and Budget.
    (h) Community development means:
    (1) Affordable housing (including multifamily rental housing) for 
low- or moderate-income individuals;
    (2) Community services targeted to low- or moderate-income 
individuals;
    (3) Activities that promote economic development by financing 
businesses or farms that meet the size eligibility standards of the 
Small Business Administration's Development Company or Small Business 
Investment Company programs (13 CFR 121.301) or have gross annual 
revenues of $1 million or less; or
    (4) Activities that revitalize or stabilize low- or moderate-income 
geographies.
    (i) Community development loan means a loan that:
    (1) Has as its primary purpose community development; and
    (2) Except in the case of a wholesale or limited purpose bank:
    (i) Has not been reported or collected by the bank or an affiliate 
for consideration in the bank's assessment as a home mortgage, small 
business, small farm, or consumer loan, unless it is a multifamily 
dwelling loan (as described in Appendix A to Part 203 of this chapter); 
and
    (ii) Benefits the bank's assessment area(s) or a broader statewide 
or regional area that includes the bank's assessment area(s).
    (j) Community development service means a service that:
    (1) Has as its primary purpose community development;
    (2) Is related to the provision of financial services; and
    (3) Has not been considered in the evaluation of the bank's retail 
banking services under Sec. 228.24(d).
    (k) Consumer loan means a loan to one or more individuals for 
household, family, or other personal expenditures. A consumer loan does 
not include a home mortgage, small business, or small farm loan. 
Consumer loans include the following categories of loans:
    (1) Motor vehicle loan, which is a consumer loan extended for the 
purchase of and secured by a motor vehicle;
    (2) Credit card loan, which is a line of credit for household, 
family, or other personal expenditures that is accessed by a borrower's 
use of a ``credit card,'' as this term is defined in Sec. 226.2 of this 
chapter;
    (3) Home equity loan, which is a consumer loan secured by a 
residence of the borrower;
    (4) Other secured consumer loan, which is a secured consumer loan 
that is not included in one of the other categories of consumer loans; 
and

[[Page 434]]

    (5) Other unsecured consumer loan, which is an unsecured consumer 
loan that is not included in one of the other categories of consumer 
loans.
    (l) Geography means a census tract or a block numbering area 
delineated by the United States Bureau of the Census in the most recent 
decennial census.
    (m) Home mortgage loan means a ``home improvement loan'' or a ``home 
purchase loan'' as defined in Sec. 203.2 of this chapter.
    (n) Income level includes:
    (1) Low-income, which means an individual income that is less than 
50 percent of the area median income, or a median family income that is 
less than 50 percent, in the case of a geography.
    (2) Moderate-income, which means an individual income that is at 
least 50 percent and less than 80 percent of the area median income, or 
a median family income that is at least 50 and less than 80 percent, in 
the case of a geography.
    (3) Middle-income, which means an individual income that is at least 
80 percent and less than 120 percent of the area median income, or a 
median family income that is at least 80 and less than 120 percent, in 
the case of a geography.
    (4) Upper-income, which means an individual income that is 120 
percent or more of the area median income, or a median family income 
that is 120 percent or more, in the case of a geography.
    (o) Limited purpose bank means a bank that offers only a narrow 
product line (such as credit card or motor vehicle loans) to a regional 
or broader market and for which a designation as a limited purpose bank 
is in effect, in accordance with Sec. 228.25(b).
    (p) Loan location. A loan is located as follows:
    (1) A consumer loan is located in the geography where the borrower 
resides;
    (2) A home mortgage loan is located in the geography where the 
property to which the loan relates is located; and
    (3) A small business or small farm loan is located in the geography 
where the main business facility or farm is located or where the loan 
proceeds otherwise will be applied, as indicated by the borrower.
    (q) Loan production office means a staffed facility, other than a 
branch, that is open to the public and that provides lending-related 
services, such as loan information and applications.
    (r) MSA means a metropolitan statistical area or a primary 
metropolitan statistical area as defined by the Director of the Office 
of Management and Budget.
    (s) Qualified investment means a lawful investment, deposit, 
membership share, or grant that has as its primary purpose community 
development.
    (t) Small bank means a bank that, as of December 31 of either of the 
prior two calendar years, had total assets of less than $250 million and 
was independent or an affiliate of a holding company that, as of 
December 31 of either of the prior two calendar years, had total banking 
and thrift assets of less than $1 billion.
    (u) Small business loan means a loan included in ``loans to small 
businesses'' as defined in the instructions for preparation of the 
Consolidated Report of Condition and Income.
    (v) Small farm loan means a loan included in ``loans to small 
farms'' as defined in the instructions for preparation of the 
Consolidated Report of Condition and Income.
    (w) Wholesale bank means a bank that is not in the business of 
extending home mortgage, small business, small farm, or consumer loans 
to retail customers, and for which a designation as a wholesale bank is 
in effect, in accordance with Sec. 228.25(b).

[Reg. BB, 60 FR 22190, May 4, 1995, as amended at 60 FR 66050, Dec. 20, 
1995; 61 FR 21363, May 10, 1996]



             Subpart B--Standards for Assessing Performance

    Source: Reg. BB, 60 FR 22191, May 4, 1995, unless otherwise noted.



Sec. 228.21  Performance tests, standards, and ratings, in general.

    (a) Performance tests and standards. The Board assesses the CRA 
performance of a bank in an examination as follows:

[[Page 435]]

    (1) Lending, investment, and service tests. The Board applies the 
lending, investment, and service tests, as provided in Secs. 228.22 
through 228.24, in evaluating the performance of a bank, except as 
provided in paragraphs (a)(2), (a)(3), and (a)(4) of this section.
    (2) Community development test for wholesale or limited purpose 
banks. The Board applies the community development test for a wholesale 
or limited purpose bank, as provided in Sec. 228.25, except as provided 
in paragraph (a)(4) of this section.
    (3) Small bank performance standards. The Board applies the small 
bank performance standards as provided in Sec. 228.26 in evaluating the 
performance of a small bank or a bank that was a small bank during the 
prior calendar year, unless the bank elects to be assessed as provided 
in paragraphs (a)(1), (a)(2), or (a)(4) of this section. The bank may 
elect to be assessed as provided in paragraph (a)(1) of this section 
only if it collects and reports the data required for other banks under 
Sec. 228.42.
    (4) Strategic plan. The Board evaluates the performance of a bank 
under a strategic plan if the bank submits, and the Board approves, a 
strategic plan as provided in Sec. 228.27.
    (b) Performance context. The Board applies the tests and standards 
in paragraph (a) of this section and also considers whether to approve a 
proposed strategic plan in the context of:
    (1) Demographic data on median income levels, distribution of 
household income, nature of housing stock, housing costs, and other 
relevant data pertaining to a bank's assessment area(s);
    (2) Any information about lending, investment, and service 
opportunities in the bank's assessment area(s) maintained by the bank or 
obtained from community organizations, state, local, and tribal 
governments, economic development agencies, or other sources;
    (3) The bank's product offerings and business strategy as determined 
from data provided by the bank;
    (4) Institutional capacity and constraints, including the size and 
financial condition of the bank, the economic climate (national, 
regional, and local), safety and soundness limitations, and any other 
factors that significantly affect the bank's ability to provide lending, 
investments, or services in its assessment area(s);
    (5) The bank's past performance and the performance of similarly 
situated lenders;
    (6) The bank's public file, as described in Sec. 228.43, and any 
written comments about the bank's CRA performance submitted to the bank 
or the Board; and
    (7) Any other information deemed relevant by the Board.
    (c) Assigned ratings. The Board assigns to a bank one of the 
following four ratings pursuant to Sec. 228.28 and Appendix A of this 
part: ``outstanding''; ``satisfactory''; ``needs to improve''; or 
``substantial noncompliance'' as provided in 12 U.S.C. 2906(b)(2). The 
rating assigned by the Board reflects the bank's record of helping to 
meet the credit needs of its entire community, including low- and 
moderate-income neighborhoods, consistent with the safe and sound 
operation of the bank.
    (d) Safe and sound operations. This part and the CRA do not require 
a bank to make loans or investments or to provide services that are 
inconsistent with safe and sound operations. To the contrary, the Board 
anticipates banks can meet the standards of this part with safe and 
sound loans, investments, and services on which the banks expect to make 
a profit. Banks are permitted and encouraged to develop and apply 
flexible underwriting standards for loans that benefit low- or moderate-
income geographies or individuals, only if consistent with safe and 
sound operations.



Sec. 228.22   Lending test.

    (a) Scope of test. (1) The lending test evaluates a bank's record of 
helping to meet the credit needs of its assessment area(s) through its 
lending activities by considering a bank's home mortgage, small 
business, small farm, and community development lending. If consumer 
lending constitutes a substantial majority of a bank's business, the 
Board will evaluate the bank's consumer lending in one or more of the 
following categories: motor vehicle, credit card, home equity, other 
secured, and other unsecured loans. In addition, at a bank's option, the 
Board will evaluate one or more categories of

[[Page 436]]

consumer lending, if the bank has collected and maintained, as required 
in Sec. 228.42(c)(1), the data for each category that the bank elects to 
have the Board evaluate.
    (2) The Board considers originations and purchases of loans. The 
Board will also consider any other loan data the bank may choose to 
provide, including data on loans outstanding, commitments and letters of 
credit.
    (3) A bank may ask the Board to consider loans originated or 
purchased by consortia in which the bank participates or by third 
parties in which the bank has invested only if the loans meet the 
definition of community development loans and only in accordance with 
paragraph (d) of this section. The Board will not consider these loans 
under any criterion of the lending test except the community development 
lending criterion.
    (b) Performance criteria. The Board evaluates a bank's lending 
performance pursuant to the following criteria:
    (1) Lending activity. The number and amount of the bank's home 
mortgage, small business, small farm, and consumer loans, if applicable, 
in the bank's assessment area(s);
    (2) Geographic distribution. The geographic distribution of the 
bank's home mortgage, small business, small farm, and consumer loans, if 
applicable, based on the loan location, including:
    (i) The proportion of the bank's lending in the bank's assessment 
area(s);
    (ii) The dispersion of lending in the bank's assessment area(s); and
    (iii) The number and amount of loans in low-, moderate-, middle-, 
and upper-income geographies in the bank's assessment area(s);
    (3) Borrower characteristics. The distribution, particularly in the 
bank's assessment area(s), of the bank's home mortgage, small business, 
small farm, and consumer loans, if applicable, based on borrower 
characteristics, including the number and amount of:
    (i) Home mortgage loans to low-, moderate-, middle-, and upper-
income individuals;
    (ii) Small business and small farm loans to businesses and farms 
with gross annual revenues of $1 million or less;
    (iii) Small business and small farm loans by loan amount at 
origination; and
    (iv) Consumer loans, if applicable, to low-, moderate-, middle-, and 
upper-income individuals;
    (4) Community development lending. The bank's community development 
lending, including the number and amount of community development loans, 
and their complexity and innovativeness; and
    (5) Innovative or flexible lending practices. The bank's use of 
innovative or flexible lending practices in a safe and sound manner to 
address the credit needs of low- or moderate-income individuals or 
geographies.
    (c) Affiliate lending. (1) At a bank's option, the Board will 
consider loans by an affiliate of the bank, if the bank provides data on 
the affiliate's loans pursuant to Sec. 228.42.
    (2) The Board considers affiliate lending subject to the following 
constraints:
    (i) No affiliate may claim a loan origination or loan purchase if 
another institution claims the same loan origination or purchase; and
    (ii) If a bank elects to have the Board consider loans within a 
particular lending category made by one or more of the bank's affiliates 
in a particular assessment area, the bank shall elect to have the Board 
consider, in accordance with paragraph (c)(1) of this section, all the 
loans within that lending category in that particular assessment area 
made by all of the bank's affiliates.
    (3) The Board does not consider affiliate lending in assessing a 
bank's performance under paragraph (b)(2)(i) of this section.
    (d) Lending by a consortium or a third party. Community development 
loans originated or purchased by a consortium in which the bank 
participates or by a third party in which the bank has invested:
    (1) Will be considered, at the bank's option, if the bank reports 
the data pertaining to these loans under Sec. 228.42(b)(2); and
    (2) May be allocated among participants or investors, as they 
choose, for purposes of the lending test, except that no participant or 
investor:

[[Page 437]]

    (i) May claim a loan origination or loan purchase if another 
participant or investor claims the same loan origination or purchase; or
    (ii) May claim loans accounting for more than its percentage share 
(based on the level of its participation or investment) of the total 
loans originated by the consortium or third party.
    (e) Lending performance rating. The Board rates a bank's lending 
performance as provided in Appendix A of this part.



Sec. 228.23  Investment test.

    (a) Scope of test. The investment test evaluates a bank's record of 
helping to meet the credit needs of its assessment area(s) through 
qualified investments that benefit its assessment area(s) or a broader 
statewide or regional area that includes the bank's assessment area(s).
    (b) Exclusion. Activities considered under the lending or service 
tests may not be considered under the investment test.
    (c) Affiliate investment. At a bank's option, the Board will 
consider, in its assessment of a bank's investment performance, a 
qualified investment made by an affiliate of the bank, if the qualified 
investment is not claimed by any other institution.
    (d) Disposition of branch premises. Donating, selling on favorable 
terms, or making available on a rent-free basis a branch of the bank 
that is located in a predominantly minority neighborhood to a minority 
depository institution or women's depository institution (as these terms 
are defined in 12 U.S.C. 2907(b)) will be considered as a qualified 
investment.
    (e) Performance criteria. The Board evaluates the investment 
performance of a bank pursuant to the following criteria:
    (1) The dollar amount of qualified investments;
    (2) The innovativeness or complexity of qualified investments;
    (3) The responsiveness of qualified investments to credit and 
community development needs; and
    (4) The degree to which the qualified investments are not routinely 
provided by private investors.
    (f) Investment performance rating. The Board rates a bank's 
investment performance as provided in Appendix A of this part.



Sec. 228.24  Service test.

    (a) Scope of test. The service test evaluates a bank's record of 
helping to meet the credit needs of its assessment area(s) by analyzing 
both the availability and effectiveness of a bank's systems for 
delivering retail banking services and the extent and innovativeness of 
its community development services.
    (b) Area(s) benefitted. Community development services must benefit 
a bank's assessment area(s) or a broader statewide or regional area that 
includes the bank's assessment area(s).
    (c) Affiliate service. At a bank's option, the Board will consider, 
in its assessment of a bank's service performance, a community 
development service provided by an affiliate of the bank, if the 
community development service is not claimed by any other institution.
    (d) Performance criteria--retail banking services. The Board 
evaluates the availability and effectiveness of a bank's systems for 
delivering retail banking services, pursuant to the following criteria:
    (1) The current distribution of the bank's branches among low-,
moderate-, middle-, and upper-income geographies;
    (2) In the context of its current distribution of the bank's 
branches, the bank's record of opening and closing branches, 
particularly branches located in low- or moderate-income geographies or 
primarily serving low- or moderate-income individuals;
    (3) The availability and effectiveness of alternative systems for 
delivering retail banking services (e.g., ATMs, ATMs not owned or 
operated by or exclusively for the bank, banking by telephone or 
computer, loan production offices, and bank-at-work or bank-by-mail 
programs) in low- and moderate-income geographies and to low- and 
moderate-income individuals; and
    (4) The range of services provided in low-, moderate-, middle-, and 
upper-income geographies and the degree to which the services are 
tailored to meet the needs of those geographies.

[[Page 438]]

    (e) Performance criteria--community development services. The Board 
evaluates community development services pursuant to the following 
criteria:
    (1) The extent to which the bank provides community development 
services; and
    (2) The innovativeness and responsiveness of community development 
services.
    (f) Service performance rating. The Board rates a bank's service 
performance as provided in Appendix A of this part.



Sec. 228.25  Community development test for wholesale or limited purpose banks.

    (a) Scope of test. The Board assesses a wholesale or limited purpose 
bank's record of helping to meet the credit needs of its assessment 
area(s) under the community development test through its community 
development lending, qualified investments, or community development 
services.
    (b) Designation as a wholesale or limited purpose bank. In order to 
receive a designation as a wholesale or limited purpose bank, a bank 
shall file a request, in writing, with the Board, at least three months 
prior to the proposed effective date of the designation. If the Board 
approves the designation, it remains in effect until the bank requests 
revocation of the designation or until one year after the Board notifies 
the bank that the Board has revoked the designation on its own 
initiative.
    (c) Performance criteria. The Board evaluates the community 
development performance of a wholesale or limited purpose bank pursuant 
to the following criteria:
    (1) The number and amount of community development loans (including 
originations and purchases of loans and other community development loan 
data provided by the bank, such as data on loans outstanding, 
commitments, and letters of credit), qualified investments, or community 
development services;
    (2) The use of innovative or complex qualified investments, 
community development loans, or community development services and the 
extent to which the investments are not routinely provided by private 
investors; and
    (3) The bank's responsiveness to credit and community development 
needs.
    (d) Indirect activities. At a bank's option, the Board will consider 
in its community development performance assessment:
    (1) Qualified investments or community development services provided 
by an affiliate of the bank, if the investments or services are not 
claimed by any other institution; and
    (2) Community development lending by affiliates, consortia and third 
parties, subject to the requirements and limitations in Sec. 228.22(c) 
and (d).
    (e) Benefit to assessment area(s)--(1) Benefit inside assessment 
area(s). The Board considers all qualified investments, community 
development loans, and community development services that benefit areas 
within the bank's assessment area(s) or a broader statewide or regional 
area that includes the bank's assessment area(s).
    (2) Benefit outside assessment area(s). The Board considers the 
qualified investments, community development loans, and community 
development services that benefit areas outside the bank's assessment 
area(s), if the bank has adequately addressed the needs of its 
assessment area(s).
    (f) Community development performance rating. The Board rates a 
bank's community development performance as provided in Appendix A of 
this part.



Sec. 228.26  Small bank performance standards.

    (a) Performance criteria. The Board evaluates the record of a small 
bank, or a bank that was a small bank during the prior calendar year, of 
helping to meet the credit needs of its assessment area(s) pursuant to 
the following criteria:
    (1) The bank's loan-to-deposit ratio, adjusted for seasonal 
variation and, as appropriate, other lending-related activities, such as 
loan originations for sale to the secondary markets, community 
development loans, or qualified investments;
    (2) The percentage of loans and, as appropriate, other lending-
related activities located in the bank's assessment area(s);

[[Page 439]]

    (3) The bank's record of lending to and, as appropriate, engaging in 
other lending-related activities for borrowers of different income 
levels and businesses and farms of different sizes;
    (4) The geographic distribution of the bank's loans; and
    (5) The bank's record of taking action, if warranted, in response to 
written complaints about its performance in helping to meet credit needs 
in its assessment area(s).
    (b) Small bank performance rating. The Board rates the performance 
of a bank evaluated under this section as provided in Appendix A of this 
part.



Sec. 228.27  Strategic plan.

    (a) Alternative election. The Board will assess a bank's record of 
helping to meet the credit needs of its assessment area(s) under a 
strategic plan if:
    (1) The bank has submitted the plan to the Board as provided for in 
this section;
    (2) The Board has approved the plan;
    (3) The plan is in effect; and
    (4) The bank has been operating under an approved plan for at least 
one year.
    (b) Data reporting. The Board's approval of a plan does not affect 
the bank's obligation, if any, to report data as required by 
Sec. 228.42.
    (c) Plans in general--(1) Term. A plan may have a term of no more 
than five years, and any multi-year plan must include annual interim 
measurable goals under which the Board will evaluate the bank's 
performance.
    (2) Multiple assessment areas. A bank with more than one assessment 
area may prepare a single plan for all of its assessment areas or one or 
more plans for one or more of its assessment areas.
    (3) Treatment of affiliates. Affiliated institutions may prepare a 
joint plan if the plan provides measurable goals for each institution. 
Activities may be allocated among institutions at the institutions' 
option, provided that the same activities are not considered for more 
than one institution.
    (d) Public participation in plan development. Before submitting a 
plan to the Board for approval, a bank shall:
    (1) Informally seek suggestions from members of the public in its 
assessment area(s) covered by the plan while developing the plan;
    (2) Once the bank has developed a plan, formally solicit public 
comment on the plan for at least 30 days by publishing notice in at 
least one newspaper of general circulation in each assessment area 
covered by the plan; and
    (3) During the period of formal public comment, make copies of the 
plan available for review by the public at no cost at all offices of the 
bank in any assessment area covered by the plan and provide copies of 
the plan upon request for a reasonable fee to cover copying and mailing, 
if applicable.
    (e) Submission of plan. The bank shall submit its plan to the Board 
at least three months prior to the proposed effective date of the plan. 
The bank shall also submit with its plan a description of its informal 
efforts to seek suggestions from members of the public, any written 
public comment received, and, if the plan was revised in light of the 
comment received, the initial plan as released for public comment.
    (f) Plan content--(1) Measurable goals. (i) A bank shall specify in 
its plan measurable goals for helping to meet the credit needs of each 
assessment area covered by the plan, particularly the needs of low- and 
moderate-income geographies and low- and moderate-income individuals, 
through lending, investment, and services, as appropriate.
    (ii) A bank shall address in its plan all three performance 
categories and, unless the bank has been designated as a wholesale or 
limited purpose bank, shall emphasize lending and lending-related 
activities. Nevertheless, a different emphasis, including a focus on one 
or more performance categories, may be appropriate if responsive to the 
characteristics and credit needs of its assessment area(s), considering 
public comment and the bank's capacity and constraints, product 
offerings, and business strategy.
    (2) Confidential information. A bank may submit additional 
information to the Board on a confidential basis, but the goals stated 
in the plan must be sufficiently specific to enable the public and the 
Board to judge the merits of the plan.

[[Page 440]]

    (3) Satisfactory and outstanding goals. A bank shall specify in its 
plan measurable goals that constitute ``satisfactory'' performance. A 
plan may specify measurable goals that constitute ``outstanding'' 
performance. If a bank submits, and the Board approves, both 
``satisfactory'' and ``outstanding'' performance goals, the Board will 
consider the bank eligible for an ``outstanding'' performance rating.
    (4) Election if satisfactory goals not substantially met. A bank may 
elect in its plan that, if the bank fails to meet substantially its plan 
goals for a satisfactory rating, the Board will evaluate the bank's 
performance under the lending, investment, and service tests, the 
community development test, or the small bank performance standards, as 
appropriate.
    (g) Plan approval--(1) Timing. The Board will act upon a plan within 
60 calendar days after the Board receives the complete plan and other 
material required under paragraph (d) of this section. If the Board 
fails to act within this time period, the plan shall be deemed approved 
unless the Board extends the review period for good cause.
    (2) Public participation. In evaluating the plan's goals, the Board 
considers the public's involvement in formulating the plan, written 
public comment on the plan, and any response by the bank to public 
comment on the plan.
    (3) Criteria for evaluating plan. The Board evaluates a plan's 
measurable goals using the following criteria, as appropriate:
    (i) The extent and breadth of lending or lending-related activities, 
including, as appropriate, the distribution of loans among different 
geographies, businesses and farms of different sizes, and individuals of 
different income levels, the extent of community development lending, 
and the use of innovative or flexible lending practices to address 
credit needs;
    (ii) The amount and innovativeness, complexity, and responsiveness 
of the bank's qualified investments; and
    (iii) The availability and effectiveness of the bank's systems for 
delivering retail banking services and the extent and innovativeness of 
the bank's community development services.
    (h) Plan amendment. During the term of a plan, a bank may request 
the Board to approve an amendment to the plan on grounds that there has 
been a material change in circumstances. The bank shall develop an 
amendment to a previously approved plan in accordance with the public 
participation requirements of paragraph (d) of this section.
    (i) Plan assessment. The Board approves the goals and assesses 
performance under a plan as provided for in Appendix A of this part.

[Reg. BB, 60 FR 22193, May 4, 1995, as amended at 60 FR 66050, Dec. 20, 
1995]



Sec. 228.28  Assigned ratings.

    (a) Ratings in general. Subject to paragraphs (b) and (c) of this 
section, the Board assigns to a bank a rating of ``outstanding,'' 
``satisfactory,'' ``needs to improve,'' or ``substantial noncompliance'' 
based on the bank's performance under the lending, investment and 
service tests, the community development test, the small bank 
performance standards, or an approved strategic plan, as applicable.
    (b) Lending, investment, and service tests. The Board assigns a 
rating for a bank assessed under the lending, investment, and service 
tests in accordance with the following principles:
    (1) A bank that receives an ``outstanding'' rating on the lending 
test receives an assigned rating of at least ``satisfactory'';
    (2) A bank that receives an ``outstanding'' rating on both the 
service test and the investment test and a rating of at least ``high 
satisfactory'' on the lending test receives an assigned rating of 
``outstanding''; and
    (3) No bank may receive an assigned rating of ``satisfactory'' or 
higher unless it receives a rating of at least ``low satisfactory'' on 
the lending test.
    (c) Effect of evidence of discriminatory or other illegal credit 
practices. Evidence of discriminatory or other illegal credit practices 
adversely affects the Board's evaluation of a bank's performance. In 
determining the effect on the bank's assigned rating, the Board 
considers the nature and extent of the evidence, the policies and 
procedures that the bank has in place to prevent discriminatory or other 
illegal credit practices, any corrective action that

[[Page 441]]

the bank has taken or has committed to take, particularly voluntary 
corrective action resulting from self-assessment, and other relevant 
information.



Sec. 228.29  Effect of CRA performance on applications.

    (a) CRA performance. Among other factors, the Board takes into 
account the record of performance under the CRA of:
    (1) Each applicant bank for the:
    (i) Establishment of a domestic branch by a State member bank; and
    (ii) Merger, consolidation, acquisition of assets, or assumption of 
liabilities requiring approval under the Bank Merger Act (12 U.S.C. 
1828(c)) if the acquiring, assuming, or resulting bank is to be a State 
member bank; and
    (2) Each insured depository institution (as defined in 12 U.S.C. 
1813) controlled by an applicant and subsidiary bank or savings 
association proposed to be controlled by an applicant:
    (i) To become a bank holding company in a transaction that requires 
approval under section 3 of the Bank Holding Company Act (12 U.S.C. 
1842);
    (ii) To acquire ownership or control of shares or all or 
substantially all of the assets of a bank, to cause a bank to become a 
subsidiary of a bank holding company, or to merge or consolidate a bank 
holding company with any other bank holding company in a transaction 
that requires approval under section 3 of the Bank Holding Company Act 
(12 U.S.C. 1842); and
    (iii) To own, control or operate a savings association in a 
transaction that requires approval under section 4 of the Bank Holding 
Company Act (12 U.S.C. 1843).
    (b) Interested parties. In considering CRA performance in an 
application described in paragraph (a) of this section, the Board takes 
into account any views expressed by interested parties that are 
submitted in accordance with the Board's Rules of Procedure set forth in 
part 262 of this chapter.
    (c) Denial or conditional approval of application. A bank's record 
of performance may be the basis for denying or conditioning approval of 
an application listed in paragraph (a) of this section.
    (d) Definitions. For purposes of paragraph (a)(2) of this section, 
``bank,'' ``bank holding company,'' ``subsidiary,'' and ``savings 
association'' have the meanings given to those terms in section 2 of the 
Bank Holding Company Act (12 U.S.C. 1841).



       Subpart C--Records, Reporting, and Disclosure Requirements

    Source: Reg. BB, 60 FR 22195, May 4, 1995, unless otherwise noted.



Sec. 228.41  Assessment area delineation.

    (a) In general. A bank shall delineate one or more assessment areas 
within which the Board evaluates the bank's record of helping to meet 
the credit needs of its community. The Board does not evaluate the 
bank's delineation of its assessment area(s) as a separate performance 
criterion, but the Board reviews the delineation for compliance with the 
requirements of this section.
    (b) Geographic area(s) for wholesale or limited purpose banks. The 
assessment area(s) for a wholesale or limited purpose bank must consist 
generally of one or more MSAs (using the MSA boundaries that were in 
effect as of January 1 of the calendar year in which the delineation is 
made) or one or more contiguous political subdivisions, such as 
counties, cities, or towns, in which the bank has its main office, 
branches, and deposit-taking ATMs.
    (c) Geographic area(s) for other banks. The assessment area(s) for a 
bank other than a wholesale or limited purpose bank must:
    (1) Consist generally of one or more MSAs (using the MSA boundaries 
that were in effect as of January 1 of the calendar year in which the 
delineation is made) or one or more contiguous political subdivisions, 
such as counties, cities, or towns; and
    (2) Include the geographies in which the bank has its main office, 
its branches, and its deposit-taking ATMs, as well as the surrounding 
geographies in which the bank has originated or purchased a substantial 
portion of its loans (including home mortgage loans, small business and 
small farm loans, and any other loans the bank chooses,

[[Page 442]]

such as those consumer loans on which the bank elects to have its 
performance assessed).
    (d) Adjustments to geographic area(s). A bank may adjust the 
boundaries of its assessment area(s) to include only the portion of a 
political subdivision that it reasonably can be expected to serve. An 
adjustment is particularly appropriate in the case of an assessment area 
that otherwise would be extremely large, of unusual configuration, or 
divided by significant geographic barriers.
    (e) Limitations on the delineation of an assessment area. Each 
bank's assessment area(s):
    (1) Must consist only of whole geographies;
    (2) May not reflect illegal discrimination;
    (3) May not arbitrarily exclude low- or moderate-income geographies, 
taking into account the bank's size and financial condition; and
    (4) May not extend substantially beyond a CMSA boundary or beyond a 
state boundary unless the assessment area is located in a multistate 
MSA. If a bank serves a geographic area that extends substantially 
beyond a state boundary, the bank shall delineate separate assessment 
areas for the areas in each state. If a bank serves a geographic area 
that extends substantially beyond a CMSA boundary, the bank shall 
delineate separate assessment areas for the areas inside and outside the 
CMSA.
    (f) Banks serving military personnel. Notwithstanding the 
requirements of this section, a bank whose business predominantly 
consists of serving the needs of military personnel or their dependents 
who are not located within a defined geographic area may delineate its 
entire deposit customer base as its assessment area.
    (g) Use of assessment area(s). The Board uses the assessment area(s) 
delineated by a bank in its evaluation of the bank's CRA performance 
unless the Board determines that the assessment area(s) do not comply 
with the requirements of this section.



Sec. 228.42  Data collection, reporting, and disclosure.

    (a) Loan information required to be collected and maintained. A 
bank, except a small bank, shall collect, and maintain in machine 
readable form (as prescribed by the Board) until the completion of its 
next CRA examination, the following data for each small business or 
small farm loan originated or purchased by the bank:
    (1) A unique number or alpha-numeric symbol that can be used to 
identify the relevant loan file;
    (2) The loan amount at origination;
    (3) The loan location; and
    (4) An indicator whether the loan was to a business or farm with 
gross annual revenues of $1 million or less.
    (b) Loan information required to be reported. A bank, except a small 
bank or a bank that was a small bank during the prior calendar year, 
shall report annually by March 1 to the Board in machine readable form 
(as prescribed by the Board) the following data for the prior calendar 
year:
    (1) Small business and small farm loan data. For each geography in 
which the bank originated or purchased a small business or small farm 
loan, the aggregate number and amount of loans:
    (i) With an amount at origination of $100,000 or less;
    (ii) With amount at origination of more than $100,000 but less than 
or equal to $250,000;
    (iii) With an amount at origination of more than $250,000; and
    (iv) To businesses and farms with gross annual revenues of $1 
million or less (using the revenues that the bank considered in making 
its credit decision);
    (2) Community development loan data. The aggregate number and 
aggregate amount of community development loans originated or purchased; 
and
    (3) Home mortgage loans. If the bank is subject to reporting under 
part 203 of this chapter, the location of each home mortgage loan 
application, origination, or purchase outside the MSAs in which the bank 
has a home or branch office (or outside any MSA) in accordance with the 
requirements of part 203 of this chapter.

[[Page 443]]

    (c) Optional data collection and maintenance--(1) Consumer loans. A 
bank may collect and maintain in machine readable form (as prescribed by 
the Board) data for consumer loans originated or purchased by the bank 
for consideration under the lending test. A bank may maintain data for 
one or more of the following categories of consumer loans: motor 
vehicle, credit card, home equity, other secured, and other unsecured. 
If the bank maintains data for loans in a certain category, it shall 
maintain data for all loans originated or purchased within that 
category. The bank shall maintain data separately for each category, 
including for each loan:
    (i) A unique number or alpha-numeric symbol that can be used to 
identify the relevant loan file;
    (ii) The loan amount at origination or purchase;
    (iii) The loan location; and
    (iv) The gross annual income of the borrower that the bank 
considered in making its credit decision.
    (2) Other loan data. At its option, a bank may provide other 
information concerning its lending performance, including additional 
loan distribution data.
    (d) Data on affiliate lending. A bank that elects to have the Board 
consider loans by an affiliate, for purposes of the lending or community 
development test or an approved strategic plan, shall collect, maintain, 
and report for those loans the data that the bank would have collected, 
maintained, and reported pursuant to paragraphs (a), (b), and (c) of 
this section had the loans been originated or purchased by the bank. For 
home mortgage loans, the bank shall also be prepared to identify the 
home mortgage loans reported under part 203 of this chapter by the 
affiliate.
    (e) Data on lending by a consortium or a third party. A bank that 
elects to have the Board consider community development loans by a 
consortium or third party, for purposes of the lending or community 
development tests or an approved strategic plan, shall report for those 
loans the data that the bank would have reported under paragraph (b)(2) 
of this section had the loans been originated or purchased by the bank.
    (f) Small banks electing evaluation under the lending, investment, 
and service tests. A bank that qualifies for evaluation under the small 
bank performance standards but elects evaluation under the lending, 
investment, and service tests shall collect, maintain, and report the 
data required for other banks pursuant to paragraphs (a) and (b) of this 
section.
    (g) Assessment area data. A bank, except a small bank or a bank that 
was a small bank during the prior calendar year, shall collect and 
report to the Board by March 1 of each year a list for each assessment 
area showing the geographies within the area.
    (h) CRA Disclosure Statement. The Board prepares annually for each 
bank that reports data pursuant to this section a CRA Disclosure 
Statement that contains, on a state-by-state basis:
    (1) For each county (and for each assessment area smaller than a 
county) with a population of 500,000 persons or fewer in which the bank 
reported a small business or small farm loan:
    (i) The number and amount of small business and small farm loans 
reported as originated or purchased located in low-, moderate-, middle-, 
and upper-income geographies;
    (ii) A list grouping each geography according to whether the 
geography is low-, moderate-, middle-, or upper-income;
    (iii) A list showing each geography in which the bank reported a 
small business or small farm loan; and
    (iv) The number and amount of small business and small farm loans to 
businesses and farms with gross annual revenues of $1 million or less;
    (2) For each county (and for each assessment area smaller than a 
county) with a population in excess of 500,000 persons in which the bank 
reported a small business or small farm loan:
    (i) The number and amount of small business and small farm loans 
reported as originated or purchased located in geographies with median 
income relative to the area median income of less than 10 percent, 10 or 
more but less than 20 percent, 20 or more but less than 30 percent, 30 
or more but less than 40 percent, 40 or more but less than 50 percent, 
50 or more but less than 60 percent, 60 or more but less

[[Page 444]]

than 70 percent, 70 or more but less than 80 percent, 80 or more but 
less than 90 percent, 90 or more but less than 100 percent, 100 or more 
but less than 110 percent, 110 or more but less than 120 percent, and 
120 percent or more;
    (ii) A list grouping each geography in the county or assessment area 
according to whether the median income in the geography relative to the 
area median income is less than 10 percent, 10 or more but less than 20 
percent, 20 or more but less than 30 percent, 30 or more but less than 
40 percent, 40 or more but less than 50 percent, 50 or more but less 
than 60 percent, 60 or more but less than 70 percent, 70 or more but 
less than 80 percent, 80 or more but less than 90 percent, 90 or more 
but less than 100 percent, 100 or more but less than 110 percent, 110 or 
more but less than 120 percent, and 120 percent or more;
    (iii) A list showing each geography in which the bank reported a 
small business or small farm loan; and
    (iv) The number and amount of small business and small farm loans to 
businesses and farms with gross annual revenues of $1 million or less;
    (3) The number and amount of small business and small farm loans 
located inside each assessment area reported by the bank and the number 
and amount of small business and small farm loans located outside the 
assessment area(s) reported by the bank; and
    (4) The number and amount of community development loans reported as 
originated or purchased.
    (i) Aggregate disclosure statements. The Board, in conjunction with 
the Office of the Comptroller of the Currency, the Federal Deposit 
Insurance Corporation, and the Office of Thrift Supervision, prepares 
annually, for each MSA (including an MSA that crosses a state boundary) 
and the non-MSA portion of each state, an aggregate disclosure statement 
of small business and small farm lending by all institutions subject to 
reporting under this part or parts 25, 345, or 563e of this title. These 
disclosure statements indicate, for each geography, the number and 
amount of all small business and small farm loans originated or 
purchased by reporting institutions, except that the Board may adjust 
the form of the disclosure if necessary, because of special 
circumstances, to protect the privacy of a borrower or the competitive 
position of an institution.
    (j) Central data depositories. The Board makes the aggregate 
disclosure statements, described in paragraph (i) of this section, and 
the individual bank CRA Disclosure Statements, described in paragraph 
(h) of this section, available to the public at central data 
depositories. The Board publishes a list of the depositories at which 
the statements are available.



Sec. 228.43  Content and availability of public file.

    (a) Information available to the public. A bank shall maintain a 
public file that includes the following information:
    (1) All written comments received from the public for the current 
year and each of the prior two calendar years that specifically relate 
to the bank's performance in helping to meet community credit needs, and 
any response to the comments by the bank, if neither the comments nor 
the responses contain statements that reflect adversely on the good name 
or reputation of any persons other than the bank or publication of which 
would violate specific provisions of law;
    (2) A copy of the public section of the bank's most recent CRA 
Performance Evaluation prepared by the Board. The bank shall place this 
copy in the public file within 30 business days after its receipt from 
the Board;
    (3) A list of the bank's branches, their street addresses, and 
geographies;
    (4) A list of branches opened or closed by the bank during the 
current year and each of the prior two calendar years, their street 
addresses, and geographies;
    (5) A list of services (including hours of operation, available loan 
and deposit products, and transaction fees) generally offered at the 
bank's branches and descriptions of material differences in the 
availability or cost of services at particular branches, if any. At its 
option, a bank may include information regarding the availability of 
alternative systems for delivering retail banking services (e.g., ATMs, 
ATMs not

[[Page 445]]

owned or operated by or exclusively for the bank, banking by telephone 
or computer, loan production offices, and bank-at-work or bank-by-mail 
programs);
    (6) A map of each assessment area showing the boundaries of the area 
and identifying the geographies contained within the area, either on the 
map or in a separate list; and
    (7) Any other information the bank chooses.
    (b) Additional information available to the public--(1) Banks other 
than small banks. A bank, except a small bank or a bank that was a small 
bank during the prior calendar year, shall include in its public file 
the following information pertaining to the bank and its affiliates, if 
applicable, for each of the prior two calendar years:
    (i) If the bank has elected to have one or more categories of its 
consumer loans considered under the lending test, for each of these 
categories, the number and amount of loans:
    (A) To low-, moderate-, middle-, and upper-income individuals;
    (B) Located in low-, moderate-, middle-, and upper-income census 
tracts; and
    (C) Located inside the bank's assessment area(s) and outside the 
bank's assessment area(s); and
    (ii) The bank's CRA Disclosure Statement. The bank shall place the 
statement in the public file within three business days of its receipt 
from the Board.
    (2) Banks required to report Home Mortgage Disclosure Act (HMDA) 
data. A bank required to report home mortgage loan data pursuant to part 
203 of this chapter shall include in its public file a copy of the HMDA 
Disclosure Statement provided by the Federal Financial Institutions 
Examination Council pertaining to the bank for each of the prior two 
calendar years. In addition, a bank that elected to have the Board 
consider the mortgage lending of an affiliate for any of these years 
shall include in its public file the affiliate's HMDA Disclosure 
Statement for those years. The bank shall place the statement(s) in the 
public file within three business days after its receipt.
    (3) Small banks. A small bank or a bank that was a small bank during 
the prior calendar year shall include in its public file:
    (i) The bank's loan-to-deposit ratio for each quarter of the prior 
calendar year and, at its option, additional data on its loan-to-deposit 
ratio; and
    (ii) The information required for other banks by paragraph (b)(1) of 
this section, if the bank has elected to be evaluated under the lending, 
investment, and service tests.
    (4) Banks with strategic plans. A bank that has been approved to be 
assessed under a strategic plan shall include in its public file a copy 
of that plan. A bank need not include information submitted to the Board 
on a confidential basis in conjunction with the plan.
    (5) Banks with less than satisfactory ratings. A bank that received 
a less than satisfactory rating during its most recent examination shall 
include in its public file a description of its current efforts to 
improve its performance in helping to meet the credit needs of its 
entire community. The bank shall update the description quarterly.
    (c) Location of public information. A bank shall make available to 
the public for inspection upon request and at no cost the information 
required in this section as follows:
    (1) At the main office and, if an interstate bank, at one branch 
office in each state, all information in the public file; and
    (2) At each branch:
    (i) A copy of the public section of the bank's most recent CRA 
Performance Evaluation and a list of services provided by the branch; 
and
    (ii) Within five calendar days of the request, all the information 
in the public file relating to the assessment area in which the branch 
is located.
    (d) Copies. Upon request, a bank shall provide copies, either on 
paper or in another form acceptable to the person making the request, of 
the information in its public file. The bank may charge a reasonable fee 
not to exceed the cost of copying and mailing (if applicable).
    (e) Updating. Except as otherwise provided in this section, a bank 
shall ensure that the information required by this section is current as 
of April 1 of each year.

[[Page 446]]



Sec. 228.44  Public notice by banks.

    A bank shall provide in the public lobby of its main office and each 
of its branches the appropriate public notice set forth in Appendix B of 
this part. Only a branch of a bank having more than one assessment area 
shall include the bracketed material in the notice for branch offices. 
Only a bank that is an affiliate of a holding company shall include the 
next to the last sentence of the notices. A bank shall include the last 
sentence of the notices only if it is an affiliate of a holding company 
that is not prevented by statute from acquiring additional banks.



Sec. 228.45  Publication of planned examination schedule.

    The Board publishes at least 30 days in advance of the beginning of 
each calendar quarter a list of banks scheduled for CRA examinations in 
that quarter.



                       Subpart D--Transition Rules



Sec. 228.51  Transition rules.

    (a) Effective date. Sections of this part become applicable over a 
period of time in accordance with the schedule set forth in paragraph 
(c) of this section. Notwithstanding paragraph (c) of this section, when 
a bank, either voluntarily or mandatorily, becomes subject to the 
performance tests and standards of Secs. 228.21 through 228.27, the bank 
must comply with all the pertinent requirements of Secs. 228.11 through 
228.44, and no longer must comply with the requirements of Secs. 228.3 
through 228.7.
    (b) Data collection and reporting; strategic plan; performance tests 
and standards. (i) On January 1, 1996, the data collection requirements 
set forth in Sec. 228.42 (except Sec. 228.42(b) and (g)) become 
applicable.
    (ii) On January 1, 1997, the data reporting requirements set forth 
in Sec. 228.42(b) and (g) become applicable.
    (2) Small banks. Beginning January 1, 1996, the Board evaluates 
banks that qualify for the small bank performance standards described in 
Sec. 228.26 under that section.
    (3) Strategic plan. Beginning January 1, 1996, a bank that elects to 
be evaluated under an approved strategic plan pursuant to Sec. 228.27 
may submit its strategic plan to the Board for approval.
    (4) Other performance tests. (i) Beginning January 1, 1996, a bank 
may elect to be evaluated under the pertinent revised performance tests 
described in Secs. 228.22, 228.23, 228.24, and 228.25, if the bank 
provides the necessary data to permit evaluation.
    (ii) Beginning July 1, 1997, the Board evaluates all banks under the 
pertinent revised performance tests.
    (c) Schedule. (1) On July 1, 1995, Secs. 228.11, 228.12, 228.29, and 
228.51 become applicable, and Secs. 228.1, 228.2, 228.8, and 228.100 
expire.
    (2) On January 1, 1996, Sec. 228.41 and the pertinent provisions of 
Subpart B of this part will apply to banks that elect to be evaluated 
under Secs. 228.22 through 228.25, banks that submit for approval 
strategic plans under Sec. 228.27, and banks that qualify for the small 
bank performance standards described in Sec. 228.26.
    (3) On January 1, 1996, Secs. 228.42 (except Sec. 228.42(b) and (g)) 
and 228.45 become applicable.
    (4) On January 1, 1997, Secs. 228.41 and 228.42(b) and (g) become 
applicable.
    (5) On July 1, 1997, Secs. 228.21 through 228.28, 228.43, and 228.44 
become applicable, and Secs. 228.3 through 228.7, and 228.51 expire.

[Reg. BB, 60 FR 22197, May 4, 1995, as amended at 60 FR 66050, Dec. 20, 
1995]

    Effective Date Note: At 60 FR 22201, May 4, 1995, Sec. 228.51 was 
removed, effective July 1, 1997.

                     Appendix A to Part 228--Ratings

    (a) Ratings in general. (1) In assigning a rating, the Board 
evaluates a bank's performance under the applicable performance criteria 
in this part, in accordance with Sec. 228.21, and Sec. 228.28, which 
provides for adjustments on the basis of evidence of discriminatory or 
other illegal credit practices.
    (2) A bank's performance need not fit each aspect of a particular 
rating profile in order to receive that rating, and exceptionally strong 
performance with respect to some aspects may compensate for weak 
performance in others. The bank's overall performance, however, must be 
consistent with safe and sound banking practices and generally with the 
appropriate rating profile as follows.
    (b) Banks evaluated under the lending, investment, and service 
tests--(1) Lending performance rating. The Board assigns each

[[Page 447]]

bank's lending performance one of the five following ratings.
    (i) Outstanding. The Board rates a bank's lending performance 
``outstanding'' if, in general, it demonstrates:
    (A) Excellent responsiveness to credit needs in its assessment 
area(s), taking into account the number and amount of home mortgage, 
small business, small farm, and consumer loans, if applicable, in its 
assessment area(s);
    (B) A substantial majority of its loans are made in its assessment 
area(s);
    (C) An excellent geographic distribution of loans in its assessment 
area(s);
    (D) An excellent distribution, particularly in its assessment 
area(s), of loans among individuals of different income levels and 
businesses (including farms) of different sizes, given the product lines 
offered by the bank;
    (E) An excellent record of serving the credit needs of highly 
economically disadvantaged areas in its assessment area(s), low-income 
individuals, or businesses (including farms) with gross annual revenues 
of $1 million or less, consistent with safe and sound operations;
    (F) Extensive use of innovative or flexible lending practices in a 
safe and sound manner to address the credit needs of low- or moderate-
income individuals or geographies; and
    (G) It is a leader in making community development loans.
    (ii) High satisfactory. The Board rates a bank's lending performance 
``high satisfactory'' if, in general, it demonstrates:
    (A) Good responsiveness to credit needs in its assessment area(s), 
taking into account the number and amount of home mortgage, small 
business, small farm, and consumer loans, if applicable, in its 
assessment area(s);
    (B) A high percentage of its loans are made in its assessment 
area(s);
    (C) A good geographic distribution of loans in its assessment 
area(s);
    (D) A good distribution, particularly in its assessment area(s), of 
loans among individuals of different income levels and businesses 
(including farms) of different sizes, given the product lines offered by 
the bank;
    (E) A good record of serving the credit needs of highly economically 
disadvantaged areas in its assessment area(s), low-income individuals, 
or businesses (including farms) with gross annual revenues of $1 million 
or less, consistent with safe and sound operations;
    (F) Use of innovative or flexible lending practices in a safe and 
sound manner to address the credit needs of low- or moderate-income 
individuals or geographies; and
    (G) It has made a relatively high level of community development 
loans.
    (iii) Low satisfactory. The Board rates a bank's lending performance 
``low satisfactory'' if, in general, it demonstrates:
    (A) Adequate responsiveness to credit needs in its assessment 
area(s), taking into account the number and amount of home mortgage, 
small business, small farm, and consumer loans, if applicable, in its 
assessment area(s);
    (B) An adequate percentage of its loans are made in its assessment 
area(s);
    (C) An adequate geographic distribution of loans in its assessment 
area(s);
    (D) An adequate distribution, particularly in its assessment 
area(s), of loans among individuals of different income levels and 
businesses (including farms) of different sizes, given the product lines 
offered by the bank;
    (E) An adequate record of serving the credit needs of highly 
economically disadvantaged areas in its assessment area(s), low-income 
individuals, or businesses (including farms) with gross annual revenues 
of $1 million or less, consistent with safe and sound operations;
    (F) Limited use of innovative or flexible lending practices in a 
safe and sound manner to address the credit needs of low- or moderate-
income individuals or geographies; and
    (G) It has made an adequate level of community development loans.
    (iv) Needs to improve. The Board rates a bank's lending performance 
``needs to improve'' if, in general, it demonstrates:
    (A) Poor responsiveness to credit needs in its assessment area(s), 
taking into account the number and amount of home mortgage, small 
business, small farm, and consumer loans, if applicable, in its 
assessment area(s);
    (B) A small percentage of its loans are made in its assessment 
area(s);
    (C) A poor geographic distribution of loans, particularly to low- or 
moderate-income geographies, in its assessment area(s);
    (D) A poor distribution, particularly in its assessment area(s), of 
loans among individuals of different income levels and businesses 
(including farms) of different sizes, given the product lines offered by 
the bank;
    (E) A poor record of serving the credit needs of highly economically 
disadvantaged areas in its assessment area(s), low-income individuals, 
or businesses (including farms) with gross annual revenues of $1 million 
or less, consistent with safe and sound operations;
    (F) Little use of innovative or flexible lending practices in a safe 
and sound manner to address the credit needs of low- or moderate-income 
individuals or geographies; and
    (G) It has made a low level of community development loans.
    (v) Substantial noncompliance. The Board rates a bank's lending 
performance as being in ``substantial noncompliance'' if, in general, it 
demonstrates:
    (A) A very poor responsiveness to credit needs in its assessment 
area(s), taking into account the number and amount of home mortgage, 
small business, small farm, and

[[Page 448]]

consumer loans, if applicable, in its assessment area(s);
    (B) A very small percentage of its loans are made in its assessment 
area(s);
    (C) A very poor geographic distribution of loans, particularly to 
low- or moderate-income geographies, in its assessment area(s);
    (D) A very poor distribution, particularly in its assessment 
area(s), of loans among individuals of different income levels and 
businesses (including farms) of different sizes, given the product lines 
offered by the bank;
    (E) A very poor record of serving the credit needs of highly 
economically disadvantaged areas in its assessment area(s), low-income 
individuals, or businesses (including farms) with gross annual revenues 
of $1 million or less, consistent with safe and sound operations;
    (F) No use of innovative or flexible lending practices in a safe and 
sound manner to address the credit needs of low- or moderate-income 
individuals or geographies; and
    (G) It has made few, if any, community development loans.
    (2) Investment performance rating. The Board assigns each bank's 
investment performance one of the five following ratings.
    (i) Outstanding. The Board rates a bank's investment performance 
``outstanding'' if, in general, it demonstrates:
    (A) An excellent level of qualified investments, particularly those 
that are not routinely provided by private investors, often in a 
leadership position;
    (B) Extensive use of innovative or complex qualified investments; 
and
    (C) Excellent responsiveness to credit and community development 
needs.
    (ii) High satisfactory. The Board rates a bank's investment 
performance ``high satisfactory'' if, in general, it demonstrates:
    (A) A significant level of qualified investments, particularly those 
that are not routinely provided by private investors, occasionally in a 
leadership position;
    (B) Significant use of innovative or complex qualified investments; 
and
    (C) Good responsiveness to credit and community development needs.
    (iii) Low satisfactory. The Board rates a bank's investment 
performance ``low satisfactory'' if, in general, it demonstrates:
    (A) An adequate level of qualified investments, particularly those 
that are not routinely provided by private investors, although rarely in 
a leadership position;
    (B) Occasional use of innovative or complex qualified investments; 
and
    (C) Adequate responsiveness to credit and community development 
needs.
    (iv) Needs to improve. The Board rates a bank's investment 
performance ``needs to improve'' if, in general, it demonstrates:
    (A) A poor level of qualified investments, particularly those that 
are not routinely provided by private investors;
    (B) Rare use of innovative or complex qualified investments; and
    (C) Poor responsiveness to credit and community development needs.
    (v) Substantial noncompliance. The Board rates a bank's investment 
performance as being in ``substantial noncompliance'' if, in general, it 
demonstrates:
    (A) Few, if any, qualified investments, particularly those that are 
not routinely provided by private investors;
    (B) No use of innovative or complex qualified investments; and
    (C) Very poor responsiveness to credit and community development 
needs.
    (3) Service performance rating. The Board assigns each bank's 
service performance one of the five following ratings.
    (i) Outstanding. The Board rates a bank's service performance 
``outstanding'' if, in general, the bank demonstrates:
    (A) Its service delivery systems are readily accessible to 
geographies and individuals of different income levels in its assessment 
area(s);
    (B) To the extent changes have been made, its record of opening and 
closing branches has improved the accessibility of its delivery systems, 
particularly in low- or moderate-income geographies or to low- or 
moderate-income individuals;
    (C) Its services (including, where appropriate, business hours) are 
tailored to the convenience and needs of its assessment area(s), 
particularly low- or moderate-income geographies or low- or moderate-
income individuals; and
    (D) It is a leader in providing community development services.
    (ii) High satisfactory. The Board rates a bank's service performance 
``high satisfactory'' if, in general, the bank demonstrates:
    (A) Its service delivery systems are accessible to geographies and 
individuals of different income levels in its assessment area(s);
    (B) To the extent changes have been made, its record of opening and 
closing branches has not adversely affected the accessibility of its 
delivery systems, particularly in low- and moderate-income geographies 
and to low- and moderate-income individuals;
    (C) Its services (including, where appropriate, business hours) do 
not vary in a way that inconveniences its assessment area(s), 
particularly low- and moderate-income geographies and low- and moderate-
income individuals; and
    (D) It provides a relatively high level of community development 
services.
    (iii) Low satisfactory. The Board rates a bank's service performance 
``low satisfactory'' if, in general, the bank demonstrates:
    (A) Its service delivery systems are reasonably accessible to 
geographies and individuals of different income levels in its assessment 
area(s);

[[Page 449]]

    (B) To the extent changes have been made, its record of opening and 
closing branches has generally not adversely affected the accessibility 
of its delivery systems, particularly in low- and moderate-income 
geographies and to low- and moderate-income individuals;
    (C) Its services (including, where appropriate, business hours) do 
not vary in a way that inconveniences its assessment area(s), 
particularly low- and moderate-income geographies and low- and moderate-
income individuals; and
    (D) It provides an adequate level of community development services.
    (iv) Needs to improve. The Board rates a bank's service performance 
``needs to improve'' if, in general, the bank demonstrates:
    (A) Its service delivery systems are unreasonably inaccessible to 
portions of its assessment area(s), particularly to low- or moderate-
income geographies or to low- or moderate-income individuals;
    (B) To the extent changes have been made, its record of opening and 
closing branches has adversely affected the accessibility its delivery 
systems, particularly in low- or moderate-income geographies or to low- 
or moderate-income individuals;
    (C) Its services (including, where appropriate, business hours) vary 
in a way that inconveniences its assessment area(s), particularly low- 
or moderate-income geographies or low- or moderate-income individuals; 
and
    (D) It provides a limited level of community development services.
    (v) Substantial noncompliance. The Board rates a bank's service 
performance as being in ``substantial noncompliance'' if, in general, 
the bank demonstrates:
    (A) Its service delivery systems are unreasonably inaccessible to 
significant portions of its assessment area(s), particularly to low- or 
moderate-income geographies or to low- or moderate-income individuals;
    (B) To the extent changes have been made, its record of opening and 
closing branches has significantly adversely affected the accessibility 
of its delivery systems, particularly in low- or moderate-income 
geographies or to low- or moderate-income individuals;
    (C) Its services (including, where appropriate, business hours) vary 
in a way that significantly inconveniences its assessment area(s), 
particularly low- or moderate-income geographies or low- or moderate-
income individuals; and
    (D) It provides few, if any, community development services.
    (c) Wholesale or limited purpose banks. The Board assigns each 
wholesale or limited purpose bank's community development performance 
one of the four following ratings.
    (1) Outstanding. The Board rates a wholesale or limited purpose 
bank's community development performance ``outstanding'' if, in general, 
it demonstrates:
    (i) A high level of community development loans, community 
development services, or qualified investments, particularly investments 
that are not routinely provided by private investors;
    (ii) Extensive use of innovative or complex qualified investments, 
community development loans, or community development services; and
    (iii) Excellent responsiveness to credit and community development 
needs in its assessment area(s).
    (2) Satisfactory. The Board rates a wholesale or limited purpose 
bank's community development performance ``satisfactory'' if, in 
general, it demonstrates:
    (i) An adequate level of community development loans, community 
development services, or qualified investments, particularly investments 
that are not routinely provided by private investors;
    (ii) Occasional use of innovative or complex qualified investments, 
community development loans, or community development services; and
    (iii) Adequate responsiveness to credit and community development 
needs in its assessment area(s).
    (3) Needs to improve. The Board rates a wholesale or limited purpose 
bank's community development performance as ``needs to improve'' if, in 
general, it demonstrates:
    (i) A poor level of community development loans, community 
development services, or qualified investments, particularly investments 
that are not routinely provided by private investors;
    (ii) Rare use of innovative or complex qualified investments, 
community development loans, or community development services; and
    (iii) Poor responsiveness to credit and community development needs 
in its assessment area(s).
    (4) Substantial noncompliance. The Board rates a wholesale or 
limited purpose bank's community development performance in 
``substantial noncompliance'' if, in general, it demonstrates:
    (i) Few, if any, community development loans, community development 
services, or qualified investments, particularly investments that are 
not routinely provided by private investors;
    (ii) No use of innovative or complex qualified investments, 
community development loans, or community development services; and
    (iii) Very poor responsiveness to credit and community development 
needs in its assessment area(s).
    (d) Banks evaluated under the small bank performance standards. The 
Board rates the performance of each bank evaluated under

[[Page 450]]

the small bank performance standards as follows.
    (1) Eligibility for a satisfactory rating. The Board rates a bank's 
performance ``satisfactory'' if, in general, the bank demonstrates:
    (i) A reasonable loan-to-deposit ratio (considering seasonal 
variations) given the bank's size, financial condition, the credit needs 
of its assessment area(s), and taking into account, as appropriate, 
lending-related activities such as loan originations for sale to the 
secondary markets and community development loans and qualified 
investments;
    (ii) A majority of its loans and, as appropriate, other lending-
related activities are in its assessment area(s);
    (iii) A distribution of loans to and, as appropriate, other lending 
related-activities for individuals of different income levels (including 
low- and moderate-income individuals) and businesses and farms of 
different sizes that is reasonable given the demographics of the bank's 
assessment area(s);
    (iv) A record of taking appropriate action, as warranted, in 
response to written complaints, if any, about the bank's performance in 
helping to meet the credit needs of its assessment area(s); and
    (v) A reasonable geographic distribution of loans given the bank's 
assessment area(s).
    (2) Eligibility for an outstanding rating. A bank that meets each of 
the standards for a ``satisfactory'' rating under this paragraph and 
exceeds some or all of those standards may warrant consideration for an 
overall rating of ``outstanding.'' In assessing whether a bank's 
performance is ``outstanding,'' the Board considers the extent to which 
the bank exceeds each of the performance standards for a 
``satisfactory'' rating and its performance in making qualified 
investments and its performance in providing branches and other services 
and delivery systems that enhance credit availability in its assessment 
area(s).
    (3) Needs to improve or substantial noncompliance ratings. A bank 
also may receive a rating of ``needs to improve'' or ``substantial 
noncompliance'' depending on the degree to which its performance has 
failed to meet the standards for a ``satisfactory'' rating.
    (e) Strategic plan assessment and rating--(1) Satisfactory goals. 
The Board approves as ``satisfactory'' measurable goals that adequately 
help to meet the credit needs of the bank's assessment area(s).
    (2) Outstanding goals. If the plan identifies a separate group of 
measurable goals that substantially exceed the levels approved as 
``satisfactory,'' the Board will approve those goals as ``outstanding.''
    (3) Rating. The Board assesses the performance of a bank operating 
under an approved plan to determine if the bank has met its plan goals:
    (i) If the bank substantially achieves its plan goals for a 
satisfactory rating, the Board will rate the bank's performance under 
the plan as ``satisfactory.''
    (ii) If the bank exceeds its plan goals for a satisfactory rating 
and substantially achieves its plan goals for an outstanding rating, the 
Board will rate the bank's performance under the plan as 
``outstanding.''
    (iii) If the bank fails to meet substantially its plan goals for a 
satisfactory rating, the Board will rate the bank as either ``needs to 
improve'' or ``substantial noncompliance,'' depending on the extent to 
which it falls short of its plan goals, unless the bank elected in its 
plan to be rated otherwise, as provided in Sec. 228.27(f)(4).

[Reg. BB, 60 FR 22198, May 4, 1995]

                   Appendix B to Part 228--CRA Notice

    (a) Notice for main offices and, if an interstate bank, one branch 
office in each state.

                    Community Reinvestment Act Notice

    Under the Federal Community Reinvestment Act (CRA), the Federal 
Reserve Board (Board) evaluates our record of helping to meet the credit 
needs of this community consistent with safe and sound operations. The 
Board also takes this record into account when deciding on certain 
applications submitted by us.
    Your involvement is encouraged.
    You are entitled to certain information about our operations and our 
performance under the CRA, including, for example, information about our 
branches, such as their location and services provided at them; the 
public section of our most recent CRA Performance Evaluation, prepared 
by the Federal Reserve Bank of ________ (Reserve Bank); and comments 
received from the public relating to our performance in helping to meet 
community credit needs, as well as our responses to those comments. You 
may review this information today.
    At least 30 days before the beginning of each quarter, the Federal 
Reserve System publishes a list of the banks that are scheduled for CRA 
examination by the Reserve Bank in that quarter. This list is available 
from (title of responsible official), Federal Reserve Bank of ________ 
(address). You may send written comments about our performance in 
helping to meet community credit needs to (name and address of official 
at bank) and (title of responsible official), Federal Reserve Bank of 
________ (address). Your letter, together with any response by us, will 
be considered by the Federal Reserve System in evaluating our CRA 
performance and may be made public.
    You may ask to look at any comments received by the Reserve Bank. 
You may also

[[Page 451]]

request from the Reserve Bank an announcement of our applications 
covered by the CRA filed with the Reserve Bank. We are an affiliate of 
(name of holding company), a bank holding company. You may request from 
(title of responsible official), Federal Reserve Bank of ________ 
(address) an announcement of applications covered by the CRA filed by 
bank holding companies.
    (b) Notice for branch offices.

                    Community Reinvestment Act Notice

    Under the Federal Community Reinvestment Act (CRA), the Federal 
Reserve Board (Board) evaluates our record of helping to meet the credit 
needs of this community consistent with safe and sound operations. The 
Board also takes this record into account when deciding on certain 
applications submitted by us.
    Your involvement is encouraged.
    You are entitled to certain information about our operations and our 
performance under the CRA. You may review today the public section of 
our most recent CRA evaluation, prepared by the Federal Reserve Bank of 
________ (address), and a list of services provided at this branch. You 
may also have access to the following additional information, which we 
will make available to you at this branch within five calendar days 
after you make a request to us: (1) a map showing the assessment area 
containing this branch, which is the area in which the Board evaluates 
our CRA performance in this community; (2) information about our 
branches in this assessment area; (3) a list of services we provide at 
those locations; (4) data on our lending performance in this assessment 
area; and (5) copies of all written comments received by us that 
specifically relate to our CRA performance in this assessment area, and 
any responses we have made to those comments. If we are operating under 
an approved strategic plan, you may also have access to a copy of the 
plan.
    [If you would like to review information about our CRA performance 
in other communities served by us, the public file for our entire bank 
is available at (name of office located in state), located at 
(address).]
    At least 30 days before the beginning of each quarter, the Federal 
Reserve System publishes a list of the banks that are scheduled for CRA 
examination by the Reserve Bank in that quarter. This list is available 
from (title of responsible official), Federal Reserve Bank of ________ 
(address). You may send written comments about our performance in 
helping to meet community credit needs to (name and address of official 
at bank) and (title of responsible official), Federal Reserve Bank of 
________ (address). Your letter, together with any response by us, will 
be considered by the Federal Reserve System in evaluating our CRA 
performance and may be made public.
    You may ask to look at any comments received by the Reserve Bank. 
You may also request from the Reserve Bank an announcement of our 
applications covered by the CRA filed with the Reserve Bank. We are an 
affiliate of (name of holding company), a bank holding company. You may 
request from (title of responsible official), Federal Reserve Bank of 
________ (address) an announcement of applications covered by the CRA 
filed by bank holding companies.

[Reg. BB, 60 FR 22200, May 4, 1995]



PART 229--AVAILABILITY OF FUNDS AND COLLECTION OF CHECKS (REGULATION CC)--Table of Contents




                           Subpart A--General

Sec.
229.1  Authority and purpose; organization.
229.2  Definitions.
229.3  Administrative enforcement.

 Subpart B--Availability of Funds and Disclosure of Funds Availability 
                                Policies

229.10  Next-day availability.
229.11  [Reserved]
229.12  Availability schedule.
229.13  Exceptions.
229.14  Payment of interest.
229.15  General disclosure requirements.
229.16  Specific availability policy disclosure.
229.17  Initial disclosures.
229.18  Additional disclosure requirements.
229.19  Miscellaneous.
229.20  Relation to state law.
229.21  Civil liability.

                     Subpart C--Collection of Checks

229.30  Paying bank's responsibility for return of checks.
229.31  Returning bank's responsibility for return of checks.
229.32  Depositary bank's responsibility for returned checks.
229.33  Notice of nonpayment.
229.34  Warranties by paying bank and returning bank.
229.35  Indorsements.
229.36  Presentment and issuance of checks.
229.37  Variation by agreement.
229.38  Liability.
229.39  Insolvency of bank.
229.40  Effect of merger transaction.
229.41  Relation to state law.
229.42  Exclusions.
Appendix A to Part 229--Routing Number Guide to Next-Day Availability 
          Checks and Local Checks
Appendix B to Part 229--Reduction of Schedules for Certain Nonlocal 
          Checks

[[Page 452]]

Appendix C to Part 229--Model Forms, Clauses, and Notices
Appendix D to Part 229--Indorsement Standards
Appendix E to Part 229--Commentary
Appendix F to Part 229--Official Board Interpretations; Preemption 
          Determinations

    Authority: 12 U.S.C. 4001 et seq.

    Source: 53 FR 19433, May 27, 1988, unless otherwise noted.



                           Subpart A--General



Sec. 229.1   Authority and purpose; organization.

    (a) Authority and purpose. This part (Regulation CC; 12 CFR part 
229) is issued by the Board of Governors of the Federal Reserve System 
(Board) to implement the Expedited Funds Availability Act (Act) (title 
VI of Pub. L. 100-86, 101 Stat. 552, 635), as amended by section 1001 of 
the Cranston-Gonzalez National Affordable Housing Act of 1990 (Pub. L. 
101-625, 104 Stat. 4079, 4424) and sections 212(h), 225, and 227 of the 
Federal Deposit Insurance Corporation Improvement Act of 1991 (Pub. L. 
102-242, 105 Stat. 2236, 2303, 2307).
    (b) Organization. This part is divided into subparts and appendices 
as follows--
    (1) Subpart A contains general information. It sets forth--
    (i) The authority, purpose, and organization;
    (ii) Definition of terms; and
    (iii) Authority for administrative enforcement of this part's 
provisions.
    (2) Subpart B of this part contains rules regarding the duty of 
banks to make funds deposited into accounts available for withdrawal, 
including availability schedules. Subpart B of this part also contains 
rules regarding exceptions to the schedules, disclosure of funds 
availability policies, payment of interest, liability of banks for 
failure to comply with Subpart B of this part, and other matters.
    (3) Subpart C of this part contains rules to expedite the collection 
and return of checks by banks. These rules cover the direct return of 
checks, the manner in which the paying bank and returning banks must 
return checks to the depositary bank, notification of nonpayment by the 
paying bank, indorsement and presentment of checks, same-day settlement 
for certain checks, the liability of banks for failure to comply with 
subpart C of this part, and other matters.

[53 FR 19433, May 27, 1988, as amended at 57 FR 36598, Aug. 14, 1992; 57 
FR 46972, Oct. 14, 1992; Reg. CC, 60 FR 51670, Oct. 3, 1995]



Sec. 229.2   Definitions.

    As used in this part, unless the context requires otherwise:
    (a) Account means a deposit as defined in 12 CFR 204.2(a)(1)(i) that 
is a transaction account as described in 12 CFR 204.2(e). As defined in 
these sections, account generally includes accounts at a bank from which 
the account holder is permitted to make transfers or withdrawals by 
negotiable or transferable instrument, payment order of withdrawal, 
telephone transfer, electronic payment, or other similar means for the 
purpose of making payments or transfers to third persons or others. 
Account also includes accounts at a bank from which the account holder 
may make third party payments at an ATM, remote service unit, or other 
electronic device, including by debit card, but the term does not 
include savings deposits or accounts described in 12 CFR 204.2(d)(2) 
even though such accounts permit third party transfers. An account may 
be in the form of--
    (1) A demand deposit account,
    (2) A negotiable order of withdrawal account,
    (3) A share draft account,
    (4) An automatic transfer account, or
    (5) Any other transaction account described in 12 CFR 204.2(e).
    Account does not include an account where the account holder is a 
bank, where the account holder is an office of an institution described 
in paragraphs (e)(1) through (e)(6) of this section or an office of a 
foreign bank as defined in section 1(b) of the International Banking Act 
(12 U.S.C. 3101) that is located outside the United States, or where the 
direct or indirect account holder is the Treasury of the United States.
    (b) Automated clearinghouse or ACH means a facility that processes 
debit

[[Page 453]]

and credit transfers under rules established by a Federal Reserve Bank 
operating circular on automated clearinghouse items or under rules of an 
automated clearinghouse association.
    (c) Automated teller machine or ATM means an electronic device at 
which a natural person may make deposits to an account by cash or check 
and perform other account transactions.
    (d) Available for withdrawal with respect to funds deposited means 
available for all uses generally permitted to the customer for actually 
and finally collected funds under the bank's account agreement or 
policies, such as for payment of checks drawn on the account, 
certification of checks drawn on the account, electronic payments, 
withdrawals by cash, and transfers between accounts.
    (e) Bank means--
    (1) An insured bank as defined in section 3 of the Federal Deposit 
Insurance Act (12 U.S.C. 18I3) or a bank that is eligible to apply to 
become an insured bank under section 5 of that Act (12 U.S.C. 1815);
    (2) A mutual savings bank as defined in section 3 of the Federal 
Deposit Insurance Act (12 U.S.C. 1813);
    (3) A savings bank as defined in section 3 of the Federal Deposit 
Insurance Act (12 U.S.C. 1813);
    (4) An insured credit union as defined in section 101 of the Federal 
Credit Union Act (12 U.S.C. 1752) or a credit union that is eligible to 
make application to become an insured credit union under section 201 of 
that Act (12 U.S.C. 1781);
    (5) A member as defined in section 2 of the Federal Home Loan Bank 
Act (12 U.S.C. 1422);
    (6) A savings association as defined in section 3 of the Federal 
Deposit Insurance Act (12 U.S.C. 1813) that is an insured depository 
institution as defined in section 3 of that Act (12 U.S.C. 1813(c)(2)) 
or that is eligible to apply to become an insured depository institution 
under section 5 of that Act (12 U.S.C. 1815); or
    (7) An agency or a branch of a foreign bank as defined in section 
l(b) of the International Banking Act (12 U.S.C. 3101).

For purposes of subpart C and, in connection therewith, subpart A, the 
term bank also includes any person engaged in the business of banking, 
including a Federal Reserve Bank, a Federal Home Loan Bank, and a state 
or unit of general local government to the extent that the state or unit 
of general local government acts as a paying bank. Unless otherwise 
specified, the term bank includes all of a bank's offices in the United 
States, but not offices located outside the United States.
    (f) Banking day means that part of any business day on which an 
office of a bank is open to the public for carrying on substantially all 
of its banking functions.
    (g) Business day means a calendar day other than a Saturday or a 
Sunday, January 1, the third Monday in January, the third Monday in 
February, the last Monday in May, July 4, the first Monday in September, 
the second Monday in October, November 11, the fourth Thursday in 
November, or December 25. If January 1, July 4, November 11, or December 
25 fall on a Sunday, the next Monday is not a business day.
    (h) Cash means United States coins and currency.
    (i) Cashier's check means a check that is--
    (1) Drawn on a bank;
    (2) Signed by an officer or employee of the bank on behalf of the 
bank as drawer;
    (3) A direct obligation of the bank; and
    (4) Provided to a customer of the bank or acquired from the bank for 
remittance purposes.
    (j) Certified check means a check with respect to which the drawee 
bank certifies by signature on the check of an officer or other 
authorized employee of the bank that--
    (1) (i) The signature of the drawer on the check is genuine; and
    (ii) The bank has set aside funds that--
    (A) Are equal to the amount of the check, and
    (B) Will be used to pay the check; or
    (2) The bank will pay the check upon presentment.
    (k) Check means--
    (1) A negotiable demand draft drawn on or payable through or at an 
office of a bank;

[[Page 454]]

    (2) A negotiable demand draft drawn on a Federal Reserve Bank or a 
Federal Home Loan Bank;
    (3) A negotiable demand draft drawn on the Treasury of the United 
States;
    (4) A demand draft drawn on a state government or unit of general 
local government that is not payable through or at a bank;
    (5) A United States Postal Service money order; or
    (6) A traveler's check drawn on or payable through or at a bank.
    The term check does not include a noncash item or an item payable in 
a medium other than United States money. A draft may be a check even 
though it is described on its face by another term, such as money order. 
For purposes of subpart C, and in connection therewith, subpart A, of 
this part, the term check also includes a demand draft of the type 
described above that is nonnegotiable.
    (l) [Reserved]
    (m) Check processing region means the geographical area served by an 
office of a Federal Reserve Bank for purposes of its check processing 
activities.
    (n) Consumer account means any account used primarily for personal, 
family, or household purposes.
    (o) Depositary bank means the first bank to which a check is 
transferred even though it is also the paying bank or the payee. A check 
deposited in an account is deemed to be transferred to the bank holding 
the account into which the check is deposited, even though the check is 
physically received and indorsed first by another bank.
    (p) Electronic payment means a wire transfer or an ACH credit 
transfer.
    (q) Forward collection means the process by which a bank sends a 
check on a cash basis to the paying bank for payment.
    (r) Local check means a check payable by or at a local paying bank, 
or a check payable by a nonbank payor and payable through a local paying 
bank.
    (s) Local paying bank means a paying bank that is located in the 
same check processing region as the physical location of the branch or 
proprietary ATM of the depositary bank in which that check was 
deposited.
    (t) Merger transaction means--
    (1) A merger or consolidation of two or more banks; or
    (2) The transfer of substantially all of the assets of one or more 
banks or branches to another bank in consideration of the assumption by 
the acquiring bank of substantially all of the liabilities of the 
transferring banks, including the deposit liabilities.
    (u) Noncash item means an item that would otherwise be a check, 
except that--
    (1) A passbook, certificate, or other document is attached;
    (2) It is accompanied by special instructions, such as a request for 
special advice of payment or dishonor;
    (3) It consists of more than a single thickness of paper, except a 
check that qualifies for handling by automated check processing 
equipment; or
    (4) It has not been preprinted or post-encoded in magnetic ink with 
the routing number of the paying bank.
    (v) Nonlocal check means a check payable by, through, or at a 
nonlocal paying bank.
    (w) Nonlocal paying bank means a paying bank that is not a local 
paying bank with respect to the depositary bank.
    (x) Nonproprietary ATM means an ATM that is not a proprietary ATM.
    (y) [Reserved]
    (z) Paying bank means--
    (1) The bank by which a check is payable, unless the check is 
payable at another bank and is sent to the other bank for payment or 
collection;
    (2) The bank at which a check is payable and to which it is sent for 
payment or collection;
    (3) The Federal Reserve Bank or Federal Home Loan Bank by which a 
check is payable;
    (4) The bank through which a check is payable and to which it is 
sent for payment or collection, if the check is not payable by a bank; 
or
    (5) The state or unit of general local government on which a check 
is drawn and to which it is sent for payment or collection.

For purposes of subpart C, and in connection therewith, subpart A, 
paying bank includes the bank through which a check is payable and to 
which the check is sent for payment or collection, regardless of whether 
the check is

[[Page 455]]

payable by another bank, and the bank whose routing number appears on a 
check in fractional or magnetic form and to which the check is sent for 
payment or collection.
    (aa) Proprietary ATM means an ATM that is--
    (1) Owned or operated by, or operated exclusively for, the 
depositary bank;
    (2) Located on the premises (including the outside wall) of the 
depositary bank; or
    (3) Located within 50 feet of the premises of the depositary bank, 
and not identified as being owned or operated by another entity.
    If more than one bank meets the owned or operated criterion of 
paragraph (aa)(1) of this section, the ATM is considered proprietary to 
the bank that operates it.
    (bb) Qualified returned check means a returned check that is 
prepared for automated return to the depositary bank by placing the 
check in a carrier envelope or placing a strip on the check and encoding 
the strip or envelope in magnetic ink. A qualified returned check need 
not contain other elements of a check drawn on the depositary bank, such 
as the name of the depositary bank.
    (cc) Returning bank means a bank (other than the paying or 
depositary bank) handling a returned check or notice in lieu of return. 
A returning bank is also a collecting bank for purposes of UCC 4-202(b).
    (dd) Routing number means--
    (1) The number printed on the face of a check in fractional form on 
in nine-digit form; or
    (2) The number in a bank's indorsement in fractional or nine-digit 
form.
    (ee) Similarly situated bank means a bank of similar size, located 
in the same community, and with similar check handling activities as the 
paying bank or returning bank.
    (ff) State means a state, the District of Columbia, Puerto Rico, or 
the U.S. Virgin Islands.
    (gg) Teller's check means a check provided to a customer of a bank 
or acquired from a bank for remittance purposes, that is drawn by the 
bank, and drawn on another bank or payable through or at a bank.
    (hh) Traveler's check means an instrument for the payment of money 
that--
    (1) Is drawn on or payable through or at a bank;
    (2) Is designated on its face by the term traveler's check or by any 
substantially similar term or is commonly known and marketed as a 
traveler's check by a corporation or bank that is an issuer of 
traveler's checks;
    (3) Provides for a specimen signature of the purchaser to be 
completed at the time of purchase; and
    (4) Provides for a countersignature of the purchaser to be completed 
at the time of negotiation.
    (ii) Uniform Commercial Code, Code, or U.C.C. means the Uniform 
Commercial Code as adopted in a state.
    (jj) United States means the states, including the District of 
Columbia, the U.S. Virgin Islands, and Puerto Rico.
    (kk) Unit of general local government means any city, county, 
parish, town, township, village, or other general purpose political 
subdivision of a state. The term does not include special purpose units 
of government, such as school districts or water districts.
    (ll) Wire transfer means an unconditional order to a bank to pay a 
fixed or determinable amount of money to a beneficiary upon receipt or 
on a day stated in the order, that is transmitted by electronic or other 
means through Fedwire, the Clearing House Interbank Payments System, 
other similar network, between banks, or on the books of a bank. Wire 
transfer does not include an electronic fund transfer as defined in 
section 903(6) of the Electronic Fund Transfer Act (15 U.S.C. 1693a(6)).
    (mm) Fedwire has the same meaning as that set forth in 
Sec. 210.26(e) of this chapter.
    (nn) Good faith means honesty in fact and observance of reasonable 
commercial standards of fair dealing.
    (oo) Interest compensation means an amount of money calculated at 
the average of the Federal Funds rates published by the Federal Reserve 
Bank of New York for each of the days for which interest compensation is 
payable, divided by 360. The Federal Funds rate for any day on which a 
published rate is not available is the same as the published rate for 
the last preceding day for which there is a published rate.

[[Page 456]]

    (pp) Unless the context requires otherwise, the terms not defined in 
this section have the meanings set forth in the U.C.C.

[53 FR 19433, May 27, 1988, as amended at 53 FR 31292, Aug. 18, 1988; 53 
FR 44324, Nov. 2, 1988; Reg. CC, 54 FR 13850, Apr. 6, 1989; 57 FR 46972, 
Oct. 14, 1992; 58 FR 2, Jan. 4, 1993; 60 FR 51670, Oct. 3, 1995]



Sec. 229.3   Administrative enforcement.

    (a) Enforcement agencies. Compliance with this part is enforced 
under--
    (1) Section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818 
et seq.) in the case of--
    (i) National banks, and Federal branches and Federal agencies of 
foreign banks, by the Office of the Comptroller of the Currency;
    (ii) Member banks of the Federal Reserve System (other than national 
banks), and offices, branches, and agencies of foreign banks located in 
the United States (other than Federal branches, Federal agencies, and 
insured State branches of foreign banks), by the Board; and
    (iii) Banks insured by the Federal Deposit Insurance Corporation 
(other than members of the Federal Reserve System) and insured State 
branches of foreign banks, by the Board of Directors of the Federal 
Deposit Insurance Corporation;
    (2) Section 8 of the Federal Deposit Insurance Act, by the Director 
of the Office of Thrift Supervision in the case of savings associations 
the deposits of which are insured by the Federal Deposit Insurance 
Corporation; and
    (3) The Federal Credit Union Act (12 U.S.C. 1751 et seq.) by the 
National Credit Union Administration Board with respect to any federal 
credit union or credit union insured by the National Credit Union Share 
Insurance Fund.
The terms used in paragraph (a)(1) of this section that are not defined 
in this part or otherwise defined in section 3(s) of the Federal Deposit 
Insurance Act (12 U.S.C. 1813(s)) shall have the meaning given to them 
in section 1(b) of the International Banking Act of 1978 (12 U.S.C. 
3101).
    (b) Additional powers. (1) For the purposes of the exercise by any 
agency referred to in paragraph (a) of this section of its powers under 
any statute referred to in that paragraph, a violation of any 
requirement imposed under the Act is deemed to be a violation of a 
requirement imposed under that statute.
    (2) In addition to its powers under any provision of law 
specifically referred to in paragraph (a) of this section, each of the 
agencies referred to in that paragraph may exercise, for purposes of 
enforcing compliance with any requirement imposed under this part, any 
other authority conferred on it by law.
    (c) Enforcement by the Board. (1) Except to the extent that 
enforcement of the requirements imposed under this part is specifically 
committed to some other government agency, the Board shall enforce such 
requirements.
    (2) If the Board determines that--
    (i) Any bank that is not a bank described in paragraph (a) of this 
section; or
    (ii) Any other person subject to the authority of the Board under 
the Act and this part,

has failed to comply with any requirement imposed by this part, the 
Board may issue an order prohibiting any bank, any Federal Reserve Bank, 
or any other person subject to the authority of the Board from engaging 
in any activity or transaction that directly or indirectly involves such 
noncomplying bank or person (including any activity or transaction 
involving the receipt, payment, collection, and clearing of checks, and 
any related function of the payment system with respect to checks).

[53 FR 19433, May 27, 1988, as amended by Reg. CC, 55 FR 21855, May 30, 
1990; 57 FR 36600, Aug. 14, 1992]



 Subpart B--Availability of Funds and Disclosure of Funds Availability 
                                Policies



Sec. 229.10   Next-day availability.

    (a) Cash deposits. (1) A bank shall make funds deposited in an 
account by cash available for withdrawal not later than the business day 
after the banking day on which the cash is deposited, if the deposit is 
made in person to an employee of the depositary bank.

[[Page 457]]

    (2) A bank shall make funds deposited in an account by cash 
available for withdrawal not later than the second business day after 
the banking day on which the cash is deposited, if the deposit is not 
made in person to an employee of the depositary bank.
    (b) Electronic payments--(1) In general. A bank shall make funds 
received for deposit in an account by an electronic payment available 
for withdrawal not later than the business day after the banking day on 
which the bank received the electronic payment.
    (2) When an electronic payment is received. An electronic payment is 
received when the bank receiving the payment has received both--
    (i) Payment in actually and finally collected funds; and
    (ii) Information on the account and amount to be credited.
    A bank receives an electronic payment only to the extent that the 
bank has received payment in actually and finally collected funds.
    (c) Certain check deposits--(1) General rule. A depositary bank 
shall make funds deposited in an account by check available for 
withdrawal not later than the business day after the banking day on 
which the funds are deposited, in the case of--
    (i) A check drawn on the Treasury of the United States and deposited 
in an account held by a payee of the check;
    (ii) A U.S. Postal Service money order deposited--
    (A) In an account held by a payee of the money order; and
    (B) In person to an employee of the depositary bank.
    (iii) A check drawn on a Federal Reserve Bank or Federal Home Loan 
Bank and deposited--
    (A) In an account held by a payee of the check; and
    (B) In person to an employee of the depositary bank;
    (iv) A check drawn by a state or a unit of general local government 
and deposited--
    (A) In an account held by a payee of the check;
    (B) In a depositary bank located in the state that issued the check, 
or the same state as the unit of general local government that issued 
the check;
    (C) In person to an employee of the depositary bank; and
    (D) With a special deposit slip or deposit envelope, if such slip or 
envelope is required by the depositary bank under paragraph (c)(3) of 
this section.
    (v) A cashier's, certified, or teller's check deposited--
    (A) In an account held by a payee of the check;
    (B) In person to an employee of the depositary bank; and
    (C) With a special deposit slip or deposit envelope, if such slip or 
envelope is required by the depositary bank under paragraph (c)(3) of 
this section.
    (vi) A check deposited in a branch of the depositary bank and drawn 
on the same or another branch of the same bank if both branches are 
located in the same state or the same check processing region; and,
    (vii) The lesser of--
    (A) $100, or
    (B) The aggregate amount deposited on any one banking day to all 
accounts of the customer by check or checks not subject to next-day 
availability under paragraphs (c)(1) (i) through (vi) of this section.
    (2) Checks not deposited in person. A depositary bank shall make 
funds deposited in an account by check or checks available for 
withdrawal not later than the second business day after the banking day 
on which funds are deposited, in the case of a check deposit described 
in and that meets the requirements of paragraphs (c)(1) (ii), (iii), 
(iv), and (v), of this section, except that it is not deposited in 
person to an employee of the depositary bank.
    (3) Special deposit slip. (i) As a condition to making the funds 
available for withdrawal in accordance with this section, a depositary 
bank may require that a state or local government check or a cashier's, 
certified, or teller's check be deposited with a special deposit slip or 
deposit envelope that identifies the type of check.
    (ii) If a depositary bank requires the use of a special deposit slip 
or deposit envelope, the bank must either provide the special deposit 
slip or deposit envelope to its customers or inform its customers how 
the slip or envelope may be prepared or obtained and make the slip or 
envelope reasonably available.

[[Page 458]]

Sec. 229.11  [Reserved]



Sec. 229.12  Availability schedule.

    (a) Effective date. The availability schedule contained in this 
section is effective September 1, 1990.
    (b) Local checks and certain other checks. Except as provided in 
paragraphs (d), (e), and (f) of this section, a depository bank shall 
make funds deposited in an account by a check available for withdrawal 
not later than the second business day following the banking day on 
which funds are deposited, in the case of--
    (1) A local check;
    (2) A check drawn on the Treasury of the United States that is not 
governed by the availability requirements of Sec. 229.10(c);
    (3) A U.S. Postal Service money order that is not governed by the 
availability requirements of Sec. 229.10(c); and
    (4) A check drawn on a Federal Reserve Bank or Federal Home Loan 
Bank; a check drawn by a state or unit of general local government; or a 
cashier's, certified, or teller's check; if any check referred to in 
this paragraph (b)(4) is a local check that is not governed by the 
availability requirements of Sec. 229.10(c).
    (c) Nonlocal checks--(1) In general. Except as provided in 
paragraphs (d), (e), and (f) of this section, a depositary bank shall 
make funds deposited in an account by a check available for withdrawal 
not later than the fifth business day following the banking day on which 
funds are deposited, in the case of--
    (i) A nonlocal check; and
    (ii) A check drawn on a Federal Reserve Bank or Federal Home Loan 
Bank; a check drawn by a state or unit of general local government; a 
cashier's, certified, or teller's check; or a check deposited in a 
branch of the depositary bank and drawn on the same or another branch of 
the same bank, if any check referred to in this paragraph (c)(1)(ii) is 
a nonlocal check that is not governed by the availability requirements 
of Sec. 229.10(c).
    (2) Nonlocal checks specified in appendix B-2 to this part must be 
made available for withdrawal not later than the times prescribed in 
that Appendix.
    (d) Time period adjustment for withdrawal by cash or similar means. 
A depositary bank may extend by one business day the time that funds 
deposited in an account by one or more checks subject to paragraphs (b), 
(c), or (f) of this section are available for withdrawal by cash or 
similar means. Similar means include electronic payment, issuance of a 
cashier's or teller's check, or certification of a check, or other 
irrevocable commitment to pay, but do not include the granting of credit 
to a bank, a Federal Reserve Bank, or a Federal Home Loan Bank that 
presents a check to the depositary bank for payment. A depositary bank 
shall, however, make $400 of these funds available for withdrawal by 
cash or similar means not later than 5:00 p.m. on the business day on 
which the funds are available under paragraphs (b), (c), or (f) of this 
section. This $400 is in addition to the $100 available under 
Sec. 229.10(c)(1)(vii).
    (e) Extension of schedule for certain deposits in Alaska, Hawaii, 
Puerto Rico, and the U.S. Virgin Islands. The depositary bank may extend 
the time periods set forth in this section by one business day in the 
case of any deposit, other than a deposit described in Sec. 229.10, that 
is--
    (1) Deposited in an account at a branch of a depositary bank if the 
branch is located in Alaska, Hawaii, Puerto Rico, or the U.S. Virgin 
Islands; and
    (2) Deposited by a check drawn on or payable at or through a paying 
bank not located in the same state as the depositary bank.
    (f) Deposits at nonproprietary ATMs. A depositary bank shall make 
funds deposited in an account at a nonproprietary ATM by cash or check 
available for withdrawal not later than the fifth business day following 
the banking day on which the funds are deposited.
[53 FR 19433, May 27, 1988, as amended by Reg. CC, 55 FR 50818, Dec. 11, 
1990; 56 FR 7801, Feb. 26, 1991; 56 FR 66343, Dec. 23, 1991; 57 FR 
36601, Aug. 14, 1992; 60 FR 51670, Oct. 3, 1995]



Sec. 229.13   Exceptions.

    (a) New accounts. For purposes of this paragraph, checks subject to 
Sec. 229.10(c)(1)(v) include traveler's checks.

[[Page 459]]

    (1) A deposit in a new account--
    (i) Is subject to the requirements of Sec. 229.10 (a) and (b) to 
make funds from deposits by cash and electronic payments available for 
withdrawal on the business day following the banking day of deposit or 
receipt;
    (ii) Is subject to the requirements of Sec. 229.10(c)(1) (i) through 
(v) and Sec. 229.10(c)(2) only with respect to the first $5,000 of funds 
deposited on any one banking day; but the amount of the deposit in 
excess of $5,000 shall be available for withdrawal not later than the 
ninth business day following the banking day on which funds are 
deposited; and
    (iii) Is not subject to the availability requirements of 
Secs. 229.10(c)(1)(vi) and (vii) and 229.12.
    (2) An account is considered a new account during the first 30 
calendar days after the account is established. An account is not 
considered a new account if each customer on the account has had, within 
30 calendar days before the account is established, another account at 
the depositary bank for at least 30 calendar days.
    (b) Large deposits. Sections 229.10(c) and 229.12 do not apply to 
the aggregate amount of deposits by one or more checks to the extent 
that the aggregate amount is in excess of $5,000 on any one banking. 
day. For customers that have multiple accounts at a depositary bank, the 
bank may apply this exception to the aggregate deposits to all accounts 
held by the customer, even if the customer is not the sole holder of the 
accounts and not all of the holders of the accounts are the same.
    (c) Redeposited checks. Sections 229.10(c) and 229.12 do not apply 
to a check that has been returned unpaid and redeposited by the customer 
or the depositary bank. This exception does not apply--
    (1) To a check that has been returned due to a missing indorsement 
and redeposited after the missing indorsement has been obtained, if the 
reason for return indication on the check states that it was returned 
due to a missing indorsement; or
    (2) To a check that has been returned because it was post dated, if 
the reason for return indicated on the check states that it was returned 
because it was post dated, and if the check is no longer postdated when 
redeposited.
    (d) Repeated overdrafts. If any account or combination of accounts 
of a depositary bank's customer has been repeatedly overdrawn, then for 
a period of six months after the last such overdraft, Secs. 229.10(c) 
and 229.12 do not apply to any of the accounts. A depositary bank may 
consider a customer's account to be repeatedly overdrawn if--
    (1) On six or more banking days within the preceding six months, the 
account balance is negative, or the account balance would have become 
negative if checks or other charges to the account had been paid; or
    (2) On two or more banking days within the preceding six months, the 
account balance is negative, or the account balance would have become 
negative, in the amount of $5,000 or more, if checks or other charges to 
the account had been paid.
    (e) Reasonable cause to doubt collectibility--(1) In general. 
Sections 229.10(c) and 229.12 do not apply to a check deposited in an 
account at a depositary bank if the depositary bank has reasonable cause 
to believe that the check is uncollectible from the paying bank. 
Reasonable cause to believe a check is uncollectible requires the 
existence of facts that would cause a well-grounded belief in the mind 
of a reasonable person. Such belief shall not be based on the fact that 
the check is of a particular class or is deposited by a particular class 
of persons. The reason for the bank's belief that the check is 
uncollectible shall be included in the notice required under paragraph 
(g) of this section.
    (2) Overdraft and returned check fees. A depositary bank that 
extends the time when funds will be available for withdrawal as 
described in paragraph (e)(1) of this section, and does not furnish the 
depositor with written notice at the time of deposit shall not assess 
any fees for any subsequent overdrafts (including use of a line of 
credit) or return of checks of other debits to the account, if--
    (i) The overdraft or return of the check would not have occurred 
except for the fact that the deposited funds were delayed under 
paragraph (e)(1) of this section; and

[[Page 460]]

    (ii) The deposited check was paid by the paying bank.

Notwithstanding the foregoing, the depositary bank may assess an 
overdraft or returned check fee if it includes a notice concerning 
overdraft and returned check fees with the notice of exception required 
in paragraph (g) of this section and, when required, refunds any such 
fees upon the request of the customer. The notice must state that the 
customer may be entitled to a refund of overdraft or returned check fees 
that are assessed if the check subject to the exception is paid and how 
to obtain a refund.
    (f) Emergency conditions. Sections 229.10(c) and 229.12 do not apply 
to funds deposited by check in a depositary bank in the case of--
    (1) An interruption of communications or computer or other equipment 
facilities;
    (2) A suspension of payments by another bank;
    (3) A war; or
    (4) An emergency condition beyond the control of the depositary 
bank,

if the depositary bank exercises such diligence as the circumstances 
require.
    (g) Notice of exception--(1) In general. Subject to paragraphs 
(g)(2) and (g)(3) of this section, when a depositary bank extends the 
time when funds will be available for withdrawal based on the 
application of an exception contained in paragraphs (b) through (f) of 
this section, it must provide the depositor with a written notice.
    (i) The notice shall include the following information--
    (A) The account number of the customer;
    (B) The date and amount of the deposit;
    (C) The amount of the deposit that is being delayed;
    (D) The reason the exception was invoked; and
    (E) The time period within which the funds will be available for 
withdrawal, unless the emergency conditions exception in paragraph (f) 
of this section has been invoked, and the depositary bank, in good 
faith, does not know the duration of the emergency and, consequently, 
when the funds must be made available at the time the notice must be 
given.
    (ii) Timing of notice. (A) The notice shall be provided to the 
depositor at the time of the deposit, unless the deposit is not made in 
person to an employee of the depositary bank, or, if the facts upon 
which a determination to invoke one of the exceptions in paragraphs (b) 
through (f) of this section to delay a deposit only become known to the 
depositary bank after the time of the deposit. If the notice is not 
given at the time of the deposit, the depositary bank shall mail or 
deliver the notice to the customer as soon as practicable, but no later 
than the first business day following the day the facts become known to 
the depositary bank, or the deposit is made, whichever is later.
    (B) If the availability of funds is delayed under the emergency 
conditions exception provided in paragraph (f) of this section, the 
depositary bank is not required to provide a notice if the funds subject 
to the exception become available before the notice must be sent under 
paragraph (g)(1)(ii)(A) of this section.
    (2) One-time exception notice. In lieu of providing notice pursuant 
to paragraph (g)(1) of this section, a depositary bank that extends the 
time when the funds deposited in a nonconsumer account will be available 
for withdrawal based on an exception contained in paragraph (b) or (c) 
of this section may provide a single notice to the customer that 
includes the following information--
    (i) The reason(s) the exception may be invoked; and
    (ii) The time period within which deposits subject to the exception 
generally will be available for withdrawal.

This one-time notice shall be provided only if each type of exception 
cited in the notice will be invoked for most check deposits in the 
account to which the exception could apply. This notice shall be 
provided at or prior to the time notice must be provided under paragraph 
(g)(1)(ii) of this section.
    (3) Notice of repeated overdrafts exception. In lieu of providing 
notice pursuant to paragraph (g)(1) of this section, a depositary bank 
that extends the time when funds deposited in an account will be 
available for withdrawal based on the exception contained in paragraph 
(d) of this section may provide a notice to the customer for each

[[Page 461]]

time period during which the exception will be in effect. The notice 
shall include the following information--
    (i) The account number of the customer;
    (ii) The fact that the availability of funds deposited in the 
customer's account will be delayed because the repeated overdrafts 
exception will be invoked;
    (iii) The time period within which deposits subject to the exception 
generally will be available for withdrawal; and
    (iv) The time period during which the exception will apply.

This notice shall be provided at or prior to the time notice must be 
provided under paragraph (g)(1)(ii) of this section and only if the 
exception cited in the notice will be invoked for most check deposits in 
the account.
    (4) Record retention. A depositary bank shall retain a record, in 
accordance with Sec. 229.21(g), of each notice provided pursuant to its 
application of the reasonable cause exception under paragraph (e) of 
this section, together with a brief statement of the facts giving rise 
to the bank's reason to doubt the collectibility of the check.
    (h) Availability of deposits subject to exceptions. (1) If an 
exception contained in paragraphs (b) through (f) of this section 
applies, the depositary bank may extend the time periods established 
under Secs. 229.10(c) and 229.12 by a reasonable period of time.
    (2) If a depositary bank invokes an exception contained in 
paragraphs (b) through (e) of this section with respect to a check 
described in Sec. 229.10(c)(1) (i) through (v) or Sec. 229.10(c)(2), it 
shall make the funds available for withdrawal not later than a 
reasonable period after the day the funds would have been required to be 
made available had the check been subject to 229.12.
    (3) If a depositary bank invokes an exception under paragraph (f) of 
this section based on an emergency condition, the depositary bank shall 
make the funds available for withdrawal not later than a reasonable 
period after the emergency has ceased or the period established in 
Secs. 229.10(c) and 229.12, whichever is later.
    (4) For the purposes of paragraphs (h)(1), (h)(2), and (h)(3) of 
this section, a reasonable period is an extension of up to one business 
day for checks subject to Sec. 229.10(c)(1)(vi), five business days for 
checks subject to Sec. 229.12(b) and checks that would be subject to 
Sec. 229.12(b) under paragraph (h)(2) of this section, and six business 
days for checks subject to Sec. 229.12(c) and checks that would be 
subject to Sec. 229.12(c) under paragraph (h)(2) of this section. A 
longer extension may be reasonable, but the bank has the burden of so 
establishing.

[53 FR 19433, May 27, 1988, as amended by Reg. CC, 54 FR 13850, Apr. 6, 
1989; Reg. CC, 55 FR 21855, May 30, 1990; 57 FR 3279, Jan. 29, 1992; 57 
FR 36598, Aug. 14, 1992; 60 FR 51671, Oct. 3, 1995]



Sec. 229.14   Payment of interest.

    (a) In general. A depositary bank shall begin to accrue interest or 
dividends on funds deposited in an interest-bearing account not later 
than the business day on which the depositary bank receives credit for 
the funds. For the purposes of this section, the depositary bank may--
    (1) Rely on the availability schedule of its Federal Reserve Bank, 
Federal Home Loan Bank, or correspondent bank to determine the time 
credit is actually received; and
    (2) Accrue interest or dividends on funds deposited in interest-
bearing accounts by checks that the depositary bank sends to paying 
banks or subsequent collecting banks for payment or collection based on 
the availability of funds the depositary bank receives from the paying 
or collecting banks.
    (b) Special rule for credit unions. Paragraph (a) of this section 
does not apply to any account at a bank described in Sec. 229.2(e)(4), 
if the bank--
    (1) Begins the accrual of interest or dividends at a later date than 
the date described in paragraph (a) of this section with respect to all 
funds, including cash, deposited in the account; and
    (2) Provides notice of its interest or dividend payment policy in 
the manner required under Sec. 229.16(d).
    (c) Exception for checks returned unpaid. This subpart does not 
require a bank to pay interest or dividends on funds deposited by a 
check that is returned unpaid.

[[Page 462]]



Sec. 229.15  General disclosure requirements.

    (a) Form of disclosures. A bank shall make the disclosures required 
by this subpart clearly and conspicuously in writing. Disclosures, other 
than those posted at locations where employees accept consumer deposits 
and ATMs and the notice on preprinted deposit slips, must be in a form 
that the customer may keep. The disclosures shall be grouped together 
and shall not contain any information not related to the disclosures 
required by this subpart. If contained in a document that sets forth 
other account terms, the disclosures shall be highlighted within the 
document by, for example, use of a separate heading.
    (b) Uniform reference to day of availability. In its disclosure, a 
bank shall describe funds as being available for withdrawal on ``the 
__________ business day after'' the day of deposit. In this calculation, 
the first business day is the business day following the banking day the 
deposit was received, and the last business day is the day on which the 
funds are made available.
    (c) Multiple accounts and multiple account holders. A bank need not 
give multiple disclosures to a customer that holds multiple accounts if 
the accounts are subject to the same availability policies. Similarly, a 
bank need not give separate disclosures to each customer on a jointly 
held account.
    (d) Dormant or inactive accounts. A bank need not give availability 
disclosures to a customer that holds a dormant or inactive account.



Sec. 229.16  Specific availability policy disclosure.

    (a) General. To meet the requirements of a specific availability 
policy disclosure under Secs. 229.17 and 229.18(d), a bank shall provide 
a disclosure describing the bank's policy as to when funds deposited in 
an account are available for withdrawal. The disclosure must reflect the 
policy followed by the bank in most cases. A bank may impose longer 
delays on a case-by-case basis or by invoking one of the exceptions in 
Sec. 229.l3, provided this is reflected in the disclosure.
    (b) Content of specific availability policy disclosure. The specific 
availability policy disclosure shall contain the following, as 
applicable--
    (1) A summary of the bank's availability policy;
    (2) A description of any categories of deposits or checks used by 
the bank when it delays availability (such as local or nonlocal checks); 
how to determine the category to which a particular deposit or check 
belongs; and when each category will be available for withdrawal 
(including a description of the bank's business days and when a deposit 
is considered received);\1\
---------------------------------------------------------------------------

    \1\  A bank that distinguishes in its disclosure between local and 
nonlocal checks based on the routing number on the check must disclose 
that certain checks, such as some credit union share drafts that are 
payable by one bank but payable through another bank, will be treated as 
local or nonlocal checks based upon the location of the bank by which 
they are payable and not on the basis of the location of the bank whose 
routing number appears on the check. A bank that makes funds from 
nonlocal checks available for withdrawal within the time periods 
required for local checks under Secs. 229.12 and 229.13 is not required 
to provide this disclosure on payable-through checks to its customers. 
The statement concerning payable-through checks must describe how the 
customer can determine whether these checks will be treated as local or 
nonlocal, or state that special rules apply to such checks and that the 
customer may ask about the availability of these checks.
---------------------------------------------------------------------------

    (3) A description of any of the exceptions in Sec. 229.13 that may 
be invoked by the bank, including the time following a deposit that 
funds generally will be available for withdrawal and a statement that 
the bank will notify the customer if the bank invokes one of the 
exceptions;
    (4) A description, as specified in paragraph (c)(1) of this section, 
of any case-by-case policy of delaying availability that may result in 
deposited funds being available for withdrawal later than the time 
periods stated in the bank's availability policy; and
    (5) A description of how the customer can differentiate between a 
proprietary and a nonproprietary ATM, if the bank makes funds from 
deposits at nonproprietary ATMs available for withdrawal later than 
funds from deposits at proprietary ATMs.

[[Page 463]]

    (c) Longer delays on a case-by-case basis--(1) Notice in specific 
policy disclosure. A bank that has a policy of making deposited funds 
available for withdrawal sooner than required by this subpart may extend 
the time when funds are available up to the time periods allowed under 
this subpart on a case-by-case basis, provided the bank includes the 
following in its specific policy disclosure--
    (i) A statement that the time when deposited funds are available for 
withdrawal may be extended in some cases, and the latest time following 
a deposit that funds will be available for withdrawal;
    (ii) A statement that the bank will notify the customer if funds 
deposited in the customer's account will not be available for withdrawal 
until later than the time periods stated in the bank's availability 
policy; and
    (iii) A statement that customers should ask if they need to be sure 
about when a particular deposit will be available for withdrawal.
    (2) Notice at time of case-by-case delay--(i) In general. When a 
depositary bank extends the time when funds will be available for 
withdrawal on a case-by-case basis, it must provide the depositor with a 
written notice. The notice shall include the following information--
    (A) The account number of the customer;
    (B) The date and amount of the deposit;
    (C) The amount of the deposit that is being delayed; and
    (D) The day the funds will be available for withdrawal.
    (ii) Timing of notice. The notice shall be provided to the depositor 
at the time of the deposit, unless the deposit is not made in person to 
an employee of the depositary bank or the decision to extend the time 
when the deposited funds will be available is made after the time of the 
deposit. If notice is not given at the time of the deposit, the 
depositary bank shall mail or deliver the notice to the customer not 
later than the first business day following the banking day the deposit 
is made.
    (3) Overdraft and returned check fees. A depositary bank that 
extends the time when funds will be available for withdrawal on a case-
by-case basis and does not furnish the depositor with written notice at 
the time of deposit shall not assess any fees for any subsequent 
overdrafts (including use of a line of credit) or return of checks or 
other debits to the account, if--
    (i) The overdraft or return of the check or other debit would not 
have occurred except for the fact that the deposited funds were delayed 
under paragraph (c)(1) of this section; and
    (ii) The deposited check was paid by the paying bank.
    Notwithstanding the foregoing, the depositary bank may assess an 
overdraft or returned check fee if it includes a notice concerning 
overdraft and returned check fees with the notice required in paragraph 
(c)(2) of this section and, when required, refunds any such fees upon 
the request of the customer. The notice must state that the customer may 
be entitled to a refund of overdraft or returned check fees that are 
assessed if the check subject to the delay is paid and how to obtain a 
refund.
    (d) Credit union notice of interest payment policy. If a bank 
described in Sec. 229.2(e)(4) begins to accrue interest or dividends on 
all deposits made in an interest-bearing account, including cash 
deposits, at a later time than the day specified in Sec. 229.14(a), the 
bank's specific policy disclosures shall contain an explanation of when 
interest or dividends on deposited funds begin to accrue.

[53 FR 19433, May 27, 1988, as amended at 53 FR 31292, Aug. 18, 1988; 53 
FR 44324, Nov. 2, 1988; Reg. CC, 54 FR 13850, Apr. 6, 1989; 60 FR 51671, 
Oct. 3, 1995]



Sec. 229.17  Initial disclosures.

    Before opening a new account, a bank shall provide a potential 
customer with the applicable specific availability policy disclosure 
described in Sec. 229.16.
[Reg. CC, 60 FR 51671, Oct. 3, 1995]



Sec. 229.18  Additional disclosure requirements.

    (a) Deposit slips. A bank shall include on all preprinted deposit 
slips furnished to its customers a notice that deposits may not be 
available for immediate withdrawal.

[[Page 464]]

    (b) Locations where employees accept consumer deposits. A bank shall 
post in a conspicuous place in each location where its employees receive 
deposits to consumer accounts a notice that sets forth the time periods 
applicable to the availability of funds deposited in a consumer account.
    (c) Automated teller machines. (1) A depositary bank shall post or 
provide a notice at each ATM location that funds deposited in the ATM 
may not be available for immediate withdrawal.
    (2) A depositary bank that operates an off-premises ATM from which 
deposits are removed not more than two times each week, as described in 
Sec. 229.19(a)(4), shall disclose at or on the ATM the days on which 
deposits made at the ATM will be considered received.
    (d) Upon request. A bank shall provide to any person, upon oral or 
written request, a notice containing the applicable specific 
availability policy disclosure described in Sec. 229.l6.
    (e) Changes in policy. A bank shall send a notice to holders of 
consumer accounts at least 30 days before implementing a change to the 
bank's availability policy regarding such accounts, except that a change 
that expedites the availability of funds may be disclosed not later than 
30 days after implementation.



Sec. 229.19  Miscellaneous.

    (a) When funds are considered deposited. For the purposes of this 
subpart--
    (1) Funds deposited at a staffed facility or an ATM are considered 
deposited when they are received at the staffed facility or ATM;
    (2) Funds mailed to the depositary bank are considered deposited on 
the day they are received by the depositary bank;
    (3) Funds deposited to a night depository, lock box, or similar 
facility are considered deposited on the day on which the deposit is 
removed from such facility and is available for processing by the 
depositary bank;
    (4) Funds deposited at an ATM that is not on, or within 50 feet of, 
the premises of the depositary bank are considered deposited on the day 
the funds are removed from the ATM, if funds normally are removed from 
the ATM not more than two times each week; and
    (5) Funds may be considered deposited on the next banking day, in 
the case of funds that are deposited--
    (i) On a day that is not a banking day for the depositary bank; or
    (ii) After a cut-off hour set by the depositary bank for the receipt 
of deposits of 2:00 p.m. or later, or, for the receipt of deposits at 
ATMs or off-premise facilities, of 12:00 noon or later. Different cut-
off hours later than these times may be established for receipt of 
different types of deposits, or receipt of deposits at different 
locations.
    (b) Availability at start of business day. Except as otherwise 
provided in Sec. 229.12(d), if any provision of this subpart requires 
that funds be made available for withdrawal on any business day, the 
funds shall be available for withdrawal by the later of:
    (1) 9:00 a.m. (local time of the depositary bank); or
    (2) The time the depositary bank's teller facilities (including 
ATMs) are available for customer account withdrawals.
    (c) Effect on policies of depositary bank. This part does not--
    (1) Prohibit a depositary bank from making funds available to a 
customer for withdrawal in a shorter period of time than the time 
required by this subpart;
    (2) Affect a depositary bank's right--
    (i) To accept or reject a check for deposit;
    (ii) To revoke any settlement made by the depositary bank with 
respect to a check accepted by the bank for deposit, to charge back the 
customer's account for the amount of a check based on the return of the 
check or receipt of a notice of nonpayment of the check, or to claim a 
refund of such credit; and
    (iii) To charge back funds made available to its customer for an 
electronic payment for which the bank has not received payment in 
actually and finally collected funds;
    (3) Require a depositary bank to open or otherwise to make its 
facilities available for customer transactions on a given business day; 
or

[[Page 465]]

    (4) Supersede any policy of a depositary bank that limits the amount 
of cash a customer may withdraw from its account on any one day, if that 
policy--
    (i) Is not dependent on the time the funds have been deposited in 
the account, as long as the funds have been on deposit for the time 
period specified in Secs. 229.10, 229.12, or 229.13; and
    (ii) In the case of withdrawals made in person to an employee of the 
depositary bank--
    (A) Is applied without discrimination to all customers of the bank; 
and
    (B) Is related to security, operating, or bonding requirements of 
the depositary bank.
    (d) Use of calculated availability. A depositary bank may provide 
availability to its nonconsumer accounts based on a sample of checks 
that represents the average composition of the customer's deposits, if 
the terms for availability based on the sample are equivalent to or more 
prompt than the availability requirements of this subpart.
    (e) Holds on other funds. (1) A depositary bank that receives a 
check for deposit in an account may not place a hold on any funds of the 
customer at the bank, where--
    (i) The amount of funds that are held exceeds the amount of the 
check; or
    (ii) The funds are not made available for withdrawal within the 
times specified in Secs. 229.10, 229.12, and 229.13.
    (2) A depositary bank that cashes a check for a customer over the 
counter, other than a check drawn on the depositary bank, may not place 
a hold on funds in an account of the customer at the bank, if--
    (i) The amount of funds that are held exceeds the amount of the 
check; or
    (ii) The funds are not made available for withdrawal within the 
times specified in Secs. 229.10, 229.12, and 229.13.
    (f) Employee training and compliance. Each bank shall establish 
procedures to ensure that the bank complies with the requirements of 
this subpart, and shall provide each employee who performs duties 
subject to the requirements of this subpart with a statement of the 
procedures applicable to that employee.
    (g) Effect of Merger Transaction. For purposes of this subpart, 
except for the purposes of the new accounts exception of Sec. 229.13(a), 
and when funds are considered deposited under Sec. 229.19(a), two or 
more banks that have engaged in a merger transaction may be considered 
to be separate banks for a period of one year following the consummation 
of the merger transaction.

[53 FR 19433, May 27, 1988, as amended by Reg. CC, 54 FR 13850, Apr. 6, 
1989; 60 FR 51671, Oct. 3, 1995]



Sec. 229.20  Relation to state law.

    (a) In general. Any provision of a law or regulation of any state in 
effect on or before September 1, 1989, that requires funds deposited in 
an account at a bank chartered by the state to be made available for 
withdrawal in a shorter time than the time provided in subpart B, and, 
in connection therewith, subpart A, shall--
    (1) Supersede the provisions of the Act and subpart B, and, in 
connection therewith, subpart A, to the extent the provisions relate to 
the time by which funds deposited or received for deposit in an account 
are available for withdrawal; and
    (2) Apply to all federally insured banks located within the state.

No amendment to a state law or regulation governing the availability of 
funds that becomes effective after September 1, 1989, shall supersede 
the Act and subpart B, and, in connection therewith, subpart A, but 
unamended provisions of state law shall remain in effect.
    (b) Preemption of inconsistent law. Except as provided in paragraph 
(a), the Act and subpart B, and, in connection therewith, subpart A, 
supersede any provision of inconsistent state law.
    (c) Standards for preemption. A provision of a state law in effect 
on or before September 2, 1989, is not inconsistent with the Act, or 
subpart B, or in connection therewith, subpart A, if it requires that 
funds shall be available in a shorter period of time than the time 
provided in this subpart. Inconsistency with the Act and subpart B, and 
in connection therewith, subpart A, may exist when state law--
    (1) Permits a depositary bank to make funds deposited in an account 
by cash, electronic payment, or check

[[Page 466]]

available for withdrawal in a longer period of time than the maximum 
period of time permitted under subpart B, and, in connection therewith, 
subpart A; or
    (2) Provides for disclosures or notices concerning funds 
availability relating to accounts.
    (d) Preemption determinations. The Board may determine, upon the 
request of any state, bank, or other interested party, whether the Act 
and subpart B, and, in connection therewith, subpart A, preempt 
provisions of state laws relating to the availability of funds.
    (e) Procedures for preemption determinations. A request for a 
preemption determination shall include the following--
    (1) A copy of the full text of the state law in question, including 
any implementing regulations or judicial interpretations of that law; 
and
    (2) A comparison of the provisions of state law with the 
corresponding provisions in the Act and subparts A and B of this part, 
together with a discussion of the reasons why specific provisions of 
state law are either consistent or inconsistent with corresponding 
sections of the Act and subparts A and B of this part.
    A request for a preemption determination shall be addressed to the 
Secretary, Board of Governors of the Federal Reserve System.



Sec. 229.21  Civil liability.

    (a) Civil liability. A bank that fails to comply with any 
requirement imposed under subpart B, and in connection therewith, 
subpart A, of this part or any provision of state law that supersedes 
any provision of subpart B, and in connection therewith, subpart A, with 
respect to any person is liable to that person in an amount equal to the 
sum of--
    (1) Any actual damage sustained by that person as a result of the 
failure;
    (2) Such additional amount as the court may allow, except that--
    (i) In the case of an individual action, liability under this 
paragraph shall not be less than $100 nor greater than $1,000; and
    (ii) In the case of a class action--
    (A) No minimum recovery shall be applicable to each member of the 
class; and
    (B) The total recovery under this paragraph in any class action or 
series of class actions arising out of the same failure to comply by the 
same depositary bank shall not be more than the lesser of $500,000 or 1 
percent of the net worth of the bank involved; and
    (3) In the case of a successful action to enforce the foregoing 
liability, the costs of the action, together with a reasonable 
attorney's fee as determined by the court.
    (b) Class action awards. In determining the amount of any award in 
any class action, the court shall consider, among other relevant 
factors--
    (1) The amount of any damages awarded;
    (2) The frequency and persistence of failures of compliance;
    (3) The resources of the bank;
    (4) The number of persons adversely affected; and
    (5) The extent to which the failure of compliance was intentional.
    (c) Bona fide errors--(1) General rule. A bank is not liable in any 
action brought under this section for a violation of this subpart if the 
bank demonstrates by a preponderance of the evidence that the violation 
was not intentional and resulted from a bona fide error, notwithstanding 
the maintenance of procedures reasonably adapted to avoid any such 
error.
    (2) Examples. Examples of a bona fide error include clerical, 
calculation, computer malfunction and programming, and printing errors, 
except that an error of legal judgment with respect to the bank's 
obligation under this subpart is not a bona fide error.
    (d) Jurisdiction. Any action under this section may be brought in 
any United States district court or in any other court of competent 
jurisdiction, and shall be brought within one year after the date of the 
occurrence of the violation involved.
    (e) Reliance on Board rulings. No provision of this subpart imposing 
any liability shall apply to any act done or omitted in good faith in 
conformity with any rule, regulation, or interpretation thereof by the 
Board, regardless

[[Page 467]]

of whether such rule, regulation, or interpretation is amended, 
rescinded, or determined by judicial or other authority to be invalid 
for any reason after the act or omission has occurred.
    (f) Exclusions. This section does not apply to claims that arise 
under subpart C of this part or to actions for wrongful dishonor.
    (g) Record retention. (1) A bank shall retain evidence of compliance 
with the requirements imposed by this subpart for not less than two 
years. Records may be stored by use of microfiche, microfilm, magnetic 
tape, or other methods capable of accurately retaining and reproducing 
information.
    (2) If a bank has actual notice that it is being investigated, or is 
subject to an enforcement proceeding by an agency charged with 
monitoring that bank's compliance with the Act and this subpart, or has 
been served with notice of an action filed under this section, it shall 
retain the records pertaining to the action or proceeding pending final 
disposition of the matter, unless an earlier time is allowed by order of 
the agency or court.



                     Subpart C--Collection of Checks



Sec. 229.30  Paying bank's responsibility for return of checks.

    (a) Return of checks. If a paying bank determines not to pay a 
check, it shall return the check in an expeditious manner as provided in 
either paragraph (a)(1) or (a)(2) of this section.
    (1) Two-day/four-day test. A paying bank returns a check in an 
expeditious manner if it sends the returned check in a manner such that 
the check would normally be received by the depositary bank not later 
than 4:00 p.m. (local time of the depositary bank) of--
    (i) The second business day following the banking day on which the 
check was presented to the paying bank, if the paying bank is located in 
the same check processing region as the depositary bank; or
    (ii) The fourth business day following the banking day on which the 
check was presented to the paying bank, if the paying bank is not 
located in the same check processing region as the depositary bank.

If the last business day on which the paying bank may deliver a returned 
check to the depositary bank is not a banking day for the depositary 
bank, the paying bank meets the two-day/four-day test if the returned 
check is received by the depositary bank on or before the depositary 
bank's next banking day.
    (2) Forward collection test. A paying bank also returns a check in 
an expeditious manner if it sends the returned check in a manner that a 
similarly situated bank would normally handle a check--
    (i) Of similar amount as the returned check;
    (ii) Drawn on the depositary bank; and
    (iii) Deposited for forward collection in the similarly situated 
bank by noon on the banking day following the banking day on which the 
check was presented to the paying bank.
Subject to the requirement for expeditious return, a paying bank may 
send a returned check to the depositary bank, or to any other bank 
agreeing to handle the returned check expeditiously under 
Sec. 229.31(a). A paying bank may convert a check to a qualified 
returned check. A qualified returned check must be encoded in magnetic 
ink with the routing number of the depositary bank, the amount of the 
returned check, and a ``2'' in position 44 of the MICR line as a return 
identifier, in accordance with the American National Standard 
Specifications for Placement and Location of MICR Printing, X9.13 (Sept. 
1983). This paragraph does not affect a paying bank's responsibility to 
return a check within the deadlines required by the U.C.C., Regulation J 
(12 CFR part 210), or Sec. 229.30(c).
    (b) Unidentifiable depositary bank. A paying bank that is unable to 
identify the depositary bank with respect to a check may send the 
returned check to any bank that handled the check for forward collection 
even if that bank does not agree to handle the check expeditiously under 
Sec. 229.31(a). A paying bank sending a returned check under this 
paragraph to a bank that handled the check for forward collection must 
advise the bank to which the check is sent that the paying bank is 
unable to

[[Page 468]]

identify the depositary bank. The expeditious return requirements in 
Sec. 229.30(a) do not apply to the paying bank's return of a check under 
this paragraph.
    (c) Extension of deadline. The deadline for return or notice of 
nonpayment under the U.C.C., Regulation J (12 CFR part 210), or 
Sec. 229.36(f)(2) of this part is extended:
    (1) If a paying bank, in an effort to expedite delivery of a 
returned check to a bank, uses a means of delivery that would ordinarily 
result in the returned check being received by the bank to which it is 
sent on or before the receiving bank's next banking day following the 
otherwise applicable deadline; this deadline is extended further if a 
paying bank uses a highly expeditious means of transportation, even if 
this means of transportation would ordinarily result in delivery after 
the receiving bank's next banking day; or
    (2) If the deadline falls on a Saturday that is a banking day, as 
defined in the applicable UCC, for the paying bank, and the paying bank 
uses a means of delivery that would ordinarily result in the returned 
check being received by the bank to which it is sent prior to the cut-
off hour for the next processing cycle, in the case of a returning bank, 
or on the next banking day, in the case of a depositary bank, after 
midnight Saturday night.
    (d) Identification of returned check. A paying bank returning a 
check shall clearly indicate on the face of the check that it is a 
returned check and the reason for return.
    (e) Depositary bank without accounts. The expeditious return 
requirements of paragraph (a) of this section do not apply to checks 
deposited in a depositary bank that does not maintain accounts.
    (f) Notice in lieu of return. If a check is unavailable for return, 
the paying bank may send in its place a copy of the front and back of 
the returned check, or, if no such copy is available, a written notice 
of nonpayment containing the information specified in Sec. 229.33(b). 
The copy or notice shall clearly state that it constitutes a notice in 
lieu of return. A notice in lieu of return is considered a returned 
check subject to the expeditious return requirements of this section and 
to the other requirements of this subpart.
    (g) Reliance on routing number. A paying bank may return a returned 
check based on any routing number designating the depositary bank 
appearing on the returned check in the depositary bank's indorsement.

[53 FR 19433, May 27, 1988, as amended at 53 FR 31292, Aug. 18, 1988; 
Reg. CC, 55 FR 21855, May 30, 1990; 57 FR 46972, Oct. 14, 1993]



Sec. 229.31  Returning bank's responsibility for return of checks.

    (a) Return of checks. A returning bank shall return a returned check 
in an expeditious manner as provided in either paragraph (a)(1) or 
(a)(2) of this section.
    (1) Two-day/four-day test. A returning bank returns a check in an 
expeditious manner if it sends the returned check in a manner such that 
the check would normally be received by the depositary bank not later 
than 4:00 p.m. (local time) of--
    (i) The second business day following the banking day on which the 
check was presented to the paying bank if the paying bank is located in 
the same check processing region as the depositary bank; or
    (ii) The fourth business day following the banking day on which the 
check was presented to the paying bank if the paying bank is not located 
in the same check processing region as the depositary bank.

If the last business day on which the returning bank may deliver a 
returned check to the depositary bank is not a banking day for the 
depositary bank, the returning bank meets this requirement if the 
returned check is received by the depositary bank on or before the 
depositary bank's next banking day.
    (2) Forward collection test. A returning bank also returns a check 
in an expeditious manner if it sends the returned check in a manner that 
a similarly situated bank would normally handle a check--
    (i) Of similar amount as the returned check;
    (ii) Drawn on the depositary bank; and
    (iii) Received for forward collection by the similarly situated bank 
at the

[[Page 469]]

time the returning bank received the returned check, except that a 
returning bank may set a cut-off hour for the receipt of returned checks 
that is earlier than the similarly situated bank's cut-off hour for 
checks received for forward collection, if the cut-off hour is not 
earlier than 2:00 p.m.
Subject to the requirement for expeditious return, the returning bank 
may send the returned check to the depositary bank, or to any bank 
agreeing to handle the returned check expeditiously under 
Sec. 229.31(a). The returning bank may convert the returned check to a 
qualified returned check. A qualified returned check must be encoded in 
magnetic ink with the routing number of the depositary bank, the amount 
of the returned check, and a ``2'' in position 44 of the MICR line as a 
return identifier, in accordance with the American National Standard 
Specification for Placement and Location of MICR Printing, X9.13 (Sept. 
1983). The time for expeditious return under the forward collection 
test, and the deadline for return under the U.C.C. and Regulation J (12 
CFR part 210), are extended by one business day if the returning bank 
converts a returned check to a qualified returned check. This extension 
does not apply to the two-day/four-day test specified in paragraph 
(a)(1) of this section or when a returning bank is returning a check 
directly to the depositary bank.
    (b) Unidentifiable depositary bank. A returning bank that is unable 
to identify the depositary bank with respect to a returned check may 
send the returned check to--
    (1) Any collecting bank that handled the check for forward 
collection if the returning bank was not a collecting bank with respect 
to the returned check; or
    (2) A prior collecting bank, if the returning bank was a collecting 
bank with respect to the returned check;

even if that collecting bank does not agree to handle the returned check 
expeditiously under Sec. 229.31(a). A returning bank sending a returned 
check under this paragraph must advise the bank to which the check is 
sent that the returning bank is unable to identify the depositary bank. 
The expeditious return requirements in paragraph (a) of this section do 
not apply to return of a check under this paragraph. A returning bank 
that receives a returned check from a paying bank under Sec. 229.30(b), 
or from a returning bank under this paragraph, but that is able to 
identify the depositary bank, must thereafter return the check 
expeditiously to the depositary bank.
    (c) Settlement. A returning bank shall settle with a bank sending a 
returned check to it for return by the same means that it settles or 
would settle with the sending bank for a check received for forward 
collection drawn on the depositary bank. This settlement is final when 
made.
    (d) Charges. A returning bank may impose a charge on a bank sending 
a returned check for handling the returned check.
    (e) Depositary bank without accounts. The expeditious return 
requirements of paragraph (a) of this section do not apply to checks 
deposited with a depositary bank that does not maintain accounts.
    (f) Notice in lieu of return. If a check is unavailable for return, 
the returning bank may send in its place a copy of the front and back of 
the returned check, or, if no copy is available, a written notice of 
nonpayment containing the information specified in Sec. 229.33(b). The 
copy or notice shall clearly state that it constitutes a notice in lieu 
of return. A notice in lieu of return is considered a returned check 
subject to the expeditious return requirements of this section and to 
the other requirements of this subpart.
    (g) Reliance on routing number. A returning bank may return a 
returned check based on any routing number designating the depositary 
bank appearing on the returned check in the depositary bank's 
indorsement or in magnetic ink on a qualified returned check.

[53 FR 19433, May 27, 1988, as amended at 53 FR 31292, Aug. 18, 1988; 
Reg. CC, 54 FR 13850, Apr. 6, 1989]



Sec. 229.32  Depositary bank's responsibility for returned checks.

    (a) Acceptance of returned checks. A depositary bank shall accept 
returned checks and written notices of nonpayment

[[Page 470]]

    (1) At a location at which presentment of checks for forward 
collection is requested by the depositary bank; and
    (2) (i) At a branch, head office, or other location consistent with 
the name and address of the bank in its indorsement on the check;
    (ii) If no address appears in the indorsement, at a branch or head 
office associated with the routing number of the bank in its indorsement 
on the check;
    (iii) If the address in the indorsement is not in the same check 
processing region as the address associated with the routing number of 
the bank in its indorsement on the check, at a location consistent with 
the address in the indorsement and at a branch or head office associated 
with the routing number in the bank's indorsement; or
    (iv) If no routing number or address appears in its indorsement on 
the check, at any branch or head office of the bank.
A depositary bank may require that returned checks be separated from 
forward collection checks.
    (b) Payment. A depositary bank shall pay the returning or paying 
bank returning the check to it for the amount of the check prior to the 
close of business on the banking day on which it received the check 
(``payment date'') by--
    (1) Debit to an account of the depositary bank on the books of the 
returning or paying bank;
    (2) Cash;
    (3) Wire transfer; or
    (4) Any other form of payment acceptable to the returning or paying 
bank;

provided that the proceeds of the payment are available to the returning 
or paying bank in cash or by credit to an account of the returning or 
paying bank on or as of the payment date. If the payment date is not a 
banking day for the returning or paying bank or the depositary bank is 
unable to make the payment on the payment date, payment shall be made by 
the next day that is a banking day for the returning or paying bank. 
These payments are final when made.
    (c) Misrouted returned checks and written notices of nonpayment. If 
a bank receives a returned check or written notice of nonpayment on the 
basis that it is the depositary bank, and the bank determines that it is 
not the depositary bank with respect to the check or notice, it shall 
either promptly send the returned check or notice to the depositary bank 
directly or by means of a returning bank agreeing to handle the returned 
check expeditiously under Sec. 229.31(a), or send the check or notice 
back to the bank from which it was received.
    (d) Charges. A depositary bank may not impose a charge for accepting 
and paying checks being returned to it.

[53 FR 19433, May 27, 1988, as amended by Reg. CC, 54 FR 13850, Apr. 6, 
1989]



Sec. 229.33  Notice of nonpayment.

    (a) Requirement. If a paying bank determines not to pay a check in 
the amount of $2,500 or more, it shall provide notice of nonpayment such 
that the notice is received by the depositary bank by 4:00 p.m. (local 
time) on the second business day following the banking day on which the 
check was presented to the paying bank. If the day the paying bank is 
required to provide notice is not a banking day for the depositary bank, 
receipt of notice on the depositary bank's next banking day constitutes 
timely notice. Notice may be provided by any reasonable means, including 
the returned check, a writing (including a copy of the check), 
telephone, Fedwire, telex, or other form of telegraph.
    (b) Content of notice. Notice must include the--
    (1) Name and routing number of the paying bank;
    (2) Name of the payee(s);
    (3) Amount;
    (4) Date of the indorsement of the depositary bank;
    (5) Account number of the customer(s) of the depositary bank;
    (6) Branch name or number of the depositary bank from its 
indorsement;
    (7) Trace number associated with the indorsement of the depositary 
bank; and
    (8) Reason for nonpayment.
The notice may include other information from the check that may be 
useful in identifying the check being returned and the customer, and, in 
the case of a

[[Page 471]]

written notice, must include the name and routing number of the 
depositary bank from its indorsement. If the paying bank is not sure of 
an item of information, it shall include the information required by 
this paragraph to the extent possible, and identify any item of 
information for which the bank is not sure of the accuracy with question 
marks.
    (c) Acceptance of notice. The depositary bank shall accept notices 
during its banking day--
    (1) Either at the telephone or telegraph number of its return check 
unit indicated in the indorsement, or, if no such number appears in the 
indorsement or if the number is illegible, at the general purpose 
telephone or telegraph number of its head office or the branch indicated 
in the indorsement; and
    (2) At any other number held out by the bank for receipt of notice 
of nonpayment, and, in the case of written notice, as specified in 
Sec. 229.32(a).
    (d) Notification to customer. If the depositary bank receives a 
returned check or notice of nonpayment, it shall send notice to its 
customer of the facts by midnight of the banking day following the 
banking day on which it received the returned check or notice, or within 
a longer reasonable time.
    (e) Depositary bank without accounts. The requirements of this 
section do not apply to checks deposited in a depositary bank that does 
not maintain accounts.



Sec. 229.34  Warranties by paying bank and returning bank.

    (a) Warranties. Each paying bank or returning bank that transfers a 
returned check and receives a settlement or other consideration for it 
warrants to the transferee returning bank, to any subsequent returning 
bank, to the depositary bank, and to the owner of the check, that--
    (1) The paying bank, or in the case of a check payable by a bank and 
payable through another bank, the bank by which the check is payable, 
returned the check within its deadline under the U.C.C., Regulation J 
(12 CFR part 210), or Sec. 229.30(c) of this part;
    (2) It is authorized to return the check;
    (3) The check has not been materially altered; and
    (4) In the case of a notice in lieu of return, the original check 
has not and will not be returned.

These warranties are not made with respect to checks drawn on the 
Treasury of the United States, U.S. Postal Service money orders, or 
checks drawn on a state or a unit of general local government that are 
not payable through or at a bank.
    (b) Warranty of notice of nonpayment. Each paying bank that gives a 
notice of nonpayment warrants to the transferee bank, to any subsequent 
transferee bank, to the depositary bank, and to the owner of the check 
that--
    (1) The paying bank, or in the case of a check payable by a bank and 
payable through another bank, the bank by which the check is payable, 
returned or will return the check within its deadline under the U.C.C., 
Regulation J (12 CFR part 210), or Sec. 229.30(c) of this part;
    (2) It is authorized to send the notice; and
    (3) The check has not been materially altered.

These warranties are not made with respect to checks drawn on a state or 
a unit of general local government that are not payable through or at a 
bank.
    (c) Warranty of settlement amount, encoding, and offset. (1) Each 
bank that presents one or more checks to a paying bank and in return 
receives a settlement or other consideration warrants to the paying bank 
that the total amount of the checks presented is equal to the total 
amount of the settlement demanded by the presenting bank from the paying 
bank.
    (2) Each bank that transfers one or more checks or returned checks 
to a collecting, returning, or depositary bank and in return receives a 
settlement or other consideration warrants to the transferee bank that 
the accompanying information, if any, accurately indicates the total 
amount of the checks or returned checks transferred.
    (3) Each bank that presents or transfers a check or returned check 
warrants to any bank that subsequently handles it that, at the time of 
presentment or transfer, the information encoded after issue in magnetic 
ink on the check or returned check is correct.

[[Page 472]]

    (4) A paying bank may set off the amount by which the settlement 
paid to a presenting bank exceeds the total amount of the checks 
presented against subsequent settlements for checks presented by that 
presenting bank.
    (d) Damages. Damages for breach of these warranties shall not exceed 
the consideration received by the bank that presents or transfers a 
check or returned check, plus interest compensation and expenses related 
to the check or returned check, if any.
    (e) Tender of defense. If a bank is sued for breach of a warranty 
under this section, it may give a prior bank in the collection or return 
chain written notice of the litigation, and the bank notified may then 
give similar notice to any other prior bank. If the notice states that 
the bank notified may come in and defend and that failure to do so will 
bind the bank notified in an action later brought by the bank giving the 
notice as to any determination of fact common to the two litigations, 
the bank notified is so bound unless after seasonable receipt of the 
notice the bank notified does come in and defend.

[53 FR 19433, May 27, 1988, as amended by Reg. CC, 54 FR 13850, Apr. 6, 
1989; 57 FR 46972, Oct. 14, 1992]



Sec. 229.35  Indorsements.

    (a) Indorsement standards. A bank (other than a paying bank) that 
handles a check during forward collection or a returned check shall 
legibly indorse the check in accordance with the indorsement standard 
set forth in appendix D to this part.
    (b) Liability of bank handling check. A bank that handles a check 
for forward collection or return is liable to any bank that subsequently 
handles the check to the extent that the subsequent bank does not 
receive payment for the check because of suspension of payments by 
another bank or otherwise. This paragraph applies whether or not a bank 
has placed its indorsement on the check. This liability is not affected 
by the failure of any bank to exercise ordinary care, but any bank 
failing to do so remains liable. A bank seeking recovery against a prior 
bank shall send notice to that prior bank reasonably promptly after it 
learns the facts entitling it to recover. A bank may recover from the 
bank with which it settled for the check by revoking the settlement, 
charging back any credit given to an account, or obtaining a refund. A 
bank may have the rights of a holder with respect to each check it 
handles.
    (c) Indorsement by a bank. After a check has been indorsed by a 
bank, only a bank may acquire the rights of a holder--
    (1) Until the check has been returned to the person initiating 
collection; or
    (2) Until the check has been specially indorsed by a bank to a 
person who is not a bank.
    (d) Indorsement for depositary bank. A depositary bank may arrange 
with another bank to apply the other bank's indorsement as the 
depositary bank indorsement, provided that any indorsement of the 
depositary bank on the check avoids the area reserved for the depositary 
bank indorsement as specified in appendix D. The other bank indorsing as 
depositary bank is considered the depositary bank for purposes of 
subpart C of this part.

[53 FR 19433, May 27, 1988, as amended by Reg. CC, 55 FR 21855, May 30, 
1990]



Sec. 229.36  Presentment and issuance of checks.

    (a) Payable through and payable at checks. A check payable at or 
through a paying bank is considered to be drawn on that bank for 
purposes of the expeditious return and notice of nonpayment requirements 
of this subpart.
    (b) Receipt at bank office or processing center. A check is 
considered received by the paying bank when it is received:
    (1) At a location to which delivery is requested by the paying bank;
    (2) At an address of the bank associated with the routing number on 
the check, whether in magnetic ink or in fractional form;
    (3) At any branch or head office, if the bank is identified on the 
check by name without address; or
    (4) At a branch, head office, or other location consistent with the 
name and address of the bank on the check if the bank is identified on 
the check by name and address.
    (c) Truncation. A bank may present a check to a paying bank by 
transmission of information describing the check in accordance with an 
agreement with the paying bank. A truncation

[[Page 473]]

agreement may not extend return times or otherwise vary the requirements 
of this part with respect to parties interested in the check that are 
not party to the agreement.
    (d) Liability of bank during forward collection. Settlements between 
banks for the forward collection of a check are final when made; 
however, a collecting bank handling a check for forward collection may 
be liable to a prior collecting bank, including the depositary bank, and 
the depositary bank's customer.
    (e) Issuance of payable-through checks. (1) A bank that arranges for 
checks payable by it to be payable through another bank shall require 
that the following information be printed conspicuously on the face of 
each check:
    (i) The name, location, and first four digits of the nine-digit 
routing number of the bank by which the check is payable; and
    (ii) The words ``payable through'' followed by the name and location 
of the payable-through bank.
    (2) A bank is responsible for damages under Sec. 229.38 to the 
extent that a check payable by it and not payable through another bank 
is labelled as provided in this section.
    (f) Same-day settlement. (1) A check is considered presented, and a 
paying bank must settle for or return the check pursuant to paragraph 
(f)(2) of this section, if a presenting bank delivers the check in 
accordance with reasonable delivery requirements established by the 
paying bank and demands payment under this paragraph (f)--
    (i) At a location designated by the paying bank for receipt of 
checks under this paragraph (f) that is in the check processing region 
consistent with the routing number encoded in magnetic ink on the check 
and at which the paying bank would be considered to have received the 
check under paragraph (b) of this section or, if no location is 
designated, at any location described in paragraph (b) of this section; 
and
    (ii) By 8 a.m. on a business day (local time of the location 
described in paragraph (f)(1)(i) of this section).

    A paying bank may require that checks presented for settlement 
pursuant to this paragraph (f)(1) be separated from other forward-
collection checks or returned checks.
    (2) If presentment of a check meets the requirements of paragraph 
(f)(1) of this section, the paying bank is accountable to the presenting 
bank for the amount of the check unless, by the close of Fedwire on the 
business day it receives the check, it either:
    (i) Settles with the presenting bank for the amount of the check by 
credit to an account at a Federal Reserve Bank designated by the 
presenting bank; or
    (ii) Returns the check.
    (3) Notwithstanding paragraph (f)(2) of this section, if a paying 
bank closes on a business day and receives presentment of a check on 
that day in accordance with paragraph (f)(1) of this section, the paying 
bank is accountable to the presenting bank for the amount of the check 
unless, by the close of Fedwire on its next banking day, it either:
    (i) Settles with the presenting bank for the amount of the check by 
credit to an account at a Federal Reserve Bank designated by the 
presenting bank; or
    (ii) Returns the check.

    If the closing is voluntary, unless the paying bank settles for or 
returns the check in accordance with paragraph (f)(2) of this section, 
it shall pay interest compensation to the presenting bank for each day 
after the business day on which the check was presented until the paying 
bank settles for the check, including the day of settlement.

[53 FR 19433, May 27, 1988, as amended by Reg. CC, 54 FR 32047, Aug. 4, 
1989; 55 FR 21855, May 30, 1990; 57 FR 46972, Oct. 14, 1992; 60 FR 
51671, Oct. 3, 1995]



Sec. 229.37  Variation by agreement.

    The effect of the provisions of subpart C may be varied by 
agreement, except that no agreement can disclaim the responsibility of a 
bank for its own lack of good faith or failure to exercise ordinary 
care, or can limit the measure of damages for such lack or failure; but 
the parties may determine by agreement the standards by which such 
responsibility is to be measured if such standards are not manifestly 
unreasonable.

[[Page 474]]



Sec. 229.38  Liability.

    (a) Standard of care; liability; measure of damages. A bank shall 
exercise ordinary care and act in good faith in complying with the 
requirements of this subpart. A bank that fails to exercise ordinary 
care or act in good faith under this subpart may be liable to the 
depositary bank, the depositary bank's customer, the owner of a check, 
or another party to the check. The measure of damages for failure to 
exercise ordinary care is the amount of the loss incurred, up to the 
amount of the check, reduced by the amount of the loss that party would 
have incurred even if the bank had exercised ordinary care. A bank that 
fails to act in good faith under this subpart may be liable for other 
damages, if any, suffered by the party as a proximate consequence. 
Subject to a bank's duty to exercise ordinary care or act in good faith 
in choosing the means of return or notice of nonpayment, the bank is not 
liable for the insolvency, neglect, misconduct, mistake, or default of 
another bank or person, or for loss or destruction of a check or notice 
of nonpayment in transit or in the possession of others. This section 
does not affect a paying bank's liability to its customer under the 
U.C.C. or other law.
    (b) Paying bank's failure to make timely return. If a paying bank 
fails both to comply with Sec. 229.30(a) and to comply with the deadline 
for return under the U.C.C., Regulation J (12 CFR part 210), or 
Sec. 229.30(c) in connection with a single nonpayment of a check, the 
paying bank shall be liable under either Sec. 229.30(a) or such other 
provision, but not both.
    (c) Comparative negligence. If a person, including a bank, fails to 
exercise ordinary care or act in good faith under this subpart in 
indorsing a check (Sec. 229.35), accepting a returned check or notice of 
nonpayment (Secs. 229.32(a) and 229.33(c)), or otherwise, the damages 
incurred by that person under Sec. 229.38(a) shall be diminished in 
proportion to the amount of negligence or bad faith attributable to that 
person.
    (d) Responsibility for certain aspects of checks--(1) A paying bank, 
or in the case of a check payable through the paying bank and payable by 
another bank, the bank by which the check is payable, is responsible for 
damages under paragraph (a) of this section to the extent that the 
condition of the check when issued by it or its customer adversely 
affects the ability of a bank to indorse the check legibly in accordance 
with Sec. 229.35. A depositary bank is responsible for damages under 
paragraph (a) of this section to the extent that the condition of the 
back of a check arising after the issuance of the check and prior to 
acceptance of the check by it adversely affects the ability of a bank to 
indorse the check legibly in accordance with Sec. 229.35. Responsibility 
under this paragraph shall be treated as negligence of the paying or 
depositary bank for purposes of paragraph (c) of this section.
    (2) Responsibility for payable through checks. In the case of a 
check that is payable by a bank and payable through a paying bank 
located in a different check processing region than the bank by which 
the check is payable, the bank by which the check is payable is 
responsible for damages under paragraph (a) of this section, to the 
extent that the check is not returned to the depositary bank through the 
payable through bank as quickly as the check would have been required to 
be returned under Sec. 229.30(a) had the bank by which the check is 
payable--
    (i) Received the check as paying bank on the day the payable through 
bank received the check; and
    (ii) Returned the check as paying bank in accordance with 
Sec. 229.30(a)(1).

Responsibility under this paragraph shall be treated as negligence of 
the bank by which the check is payable for purposes of paragraph (c) of 
this section.
    (e) Timeliness of action. If a bank is delayed in acting beyond the 
time limits set forth in this subpart because of interruption of 
communication or computer facilities, suspension of payments by a bank, 
war, emergency conditions, failure of equipment, or other circumstances 
beyond its control, its time for acting is extended for the time 
necessary to complete the action, if it exercises such diligence as the 
circumstances require.
    (f) Exclusion. Section 229.21 of this part and section 611 (a), (b), 
and (c) of

[[Page 475]]

the Act (12 U.S.C. 4010 (a), (b), and (c)) do not apply to this subpart.
    (g) Jurisdiction. Any action under this subpart may be brought in 
any United States district court, or in any other court of competent 
jurisdiction, and shall be brought within one year after the date of the 
occurrence of the violation involved.
    (h) Reliance on Board rulings. No provision of this subpart imposing 
any liability shall apply to any act done or omitted in good faith in 
conformity with any rule, regulation, or interpretation thereof by the 
Board, regardless of whether the rule, regulation, or interpretation is 
amended, rescinded, or determined by judicial or other authority to be 
invalid for any reason after the act or omission has occurred.

[53 FR 19433, May 27, 1988, as amended by Reg. CC, 54 FR 13850, Apr. 6, 
1989; 54 FR 32047, Aug. 4, 1989]



Sec. 229.39  lnsolvency of bank.

    (a) Duty of receiver. A check or returned check in, or coming into, 
the possession of a paying, collecting, depositary, or returning bank 
that suspends payment, and which is not paid, shall be returned by the 
receiver, trustee, or agent in charge of the closed bank to the bank or 
customer that transferred the check to the closed bank.
    (b) Preference against paying or depositary bank. If a paying or 
depositary bank finally pays a check or returned check and suspends 
payment without making a settlement for the check with the prior bank 
which is or becomes final, the prior bank has a preferred claim against 
the paying or depositary bank.
    (c) Preference against collecting, paying, or returning bank. If a 
collecting, paying, or returning bank receives settlement from a 
subsequent bank for a check or returned check, which settlement is or 
becomes final, and suspends payments without making a settlement for the 
check with the prior bank, which is or becomes final, the prior bank has 
a preferred claim against the collecting or returning bank.
    (d) Preference against presenting bank. If a paying bank settles 
with a presenting bank for one or more checks, and if the presenting 
bank breaches a warranty specified in Sec. 229.34(c) (1) or (3) with 
respect to those checks and suspends payments before satisfying the 
paying bank's warranty claim, the paying bank has a preferred claim 
against the presenting bank for the amount of the warranty claim.
    (e) Finality of settlement. If a paying or depositary bank gives, or 
a collecting, paying, or returning bank gives or receives, a settlement 
for a check or returned check and thereafter suspends payment, the 
suspension does not prevent or interfere with the settlement becoming 
final if such finality occurs automatically upon the lapse of a certain 
time or the happening of certain events.

[53 FR 19433, May 27, 1988, as amended at 57 FR 46973, Oct. 14, 1992]



Sec. 229.40  Effect of merger transaction.

    For purposes of this subpart, two or more banks that have engaged in 
a merger transaction may be considered to be separate banks for a period 
of one year following the consummation of the merger transaction.



Sec. 229.41  Relation to state law.

    The provisions of this subpart supersede any inconsistent provisions 
of the U.C.C. as adopted in any state, or of any other state law, but 
only to the extent of the inconsistency.



Sec. 229.42  Exclusions.

    The expeditious return (Secs. 229.30(a) and 229.31(a)) and notice of 
nonpayment (Sec. 229.33) requirements of this subpart do not apply to a 
check drawn upon the United States Treasury, to a U.S. Postal Service 
money order, or to a check drawn on a state or a unit of general local 
government that is not payable through or at a bank.

 Appendix A to Part 229--Routing Number Guide to Next-Day Availability 
                         Checks and Local Checks

    A. Each bank is assigned a routing number by Thomson Financial 
Publishing Inc., as agent for the American Bankers Association. The 
routing number takes two forms: A fractional form and a nine-digit form. 
A paying bank generally is identified on the face of a check by its 
routing number in both the fractional form (which generally appears in

[[Page 476]]

the upper right-hand corner of the check) and the nine-digit form (which 
is printed in magnetic ink in a strip along the bottom of the check). 
Where a check is payable by one bank but payable through another bank, 
the routing number appearing on the check is that of the payable-through 
bank, not the payor bank.
    B. The first four digits of the nine-digit routing number and the 
denominator of the fractional routing number form the ``Federal Reserve 
routing symbol,'' which identifies the Federal Reserve District, the 
Federal Reserve office, and the clearing arrangements used by the paying 
bank. 
---------------------------------------------------------------------------

    \1\ The first two digits identify the Federal Reserve District. Thus 
01 identifies the First Federal Reserve District (Boston), and l2 
identifies the Twelfth District (San Francisco).
    \2\ Adding 2 to the first digit denotes a thrift institution. Thus 
21 identifies a thrift in the First District, and 32 denotes a thrift in 
the Twelfth District.
    \3\ Banks in Fairfield County, Connecticut are members of the 
Federal Reserve Bank of New York and therefore have Second District 
routing numbers. Their checks, however, are processed by the Windsor 
Locks office. Thus, checks drawn on banks with 0211 or 2211 routing 
numbers would not be local checks for Second District depositary banks.
---------------------------------------------------------------------------

                     First Federal Reserve District

                     [Federal Reserve Bank of Boston]

                               Head Office

0110\1\
0113
0114
0115
2110\2\
2113
2114
2115

                          Windsor Locks office

0111
0116
0117
0118
0119
0211\3\
2111
2116
2117
2118
2119
2211\3\

                             Lewiston Office

0112
2112

                     Second Federal Reserve District

                   [Federal Reserve Bank of New York]

                         East Rutherford Office

0210
0212
0214
0215
0216
0219
0260
0280
2212
2214
2215
2216
2219
2260

                              Utica Office

0213
0220
0223
2213
2220
2223

                     Third Federal Reserve District

                 [Federal Reserve Bank of Philadelphia]

                               Head Office

0310
0311
0312
0313
0319
0360
2310
2311
2312
2313
2319
2360

                     Fourth Federal Reserve District

                   [Federal Reserve Bank of Cleveland]

                               Head Office

0410
0412
2410
2412

                            Cincinnati Branch

0420
0421
0422
0423
2420
2421
2422
2423

                            Pittsburgh Branch

0430
0432
0433
0434
2430
2432
2433
2434

                             Columbus Office

0440
0441
0442
2440
2441
2442

                     Fifth Federal Reserve District

                   [Federal Reserve Bank of Richmond]

                               Head Office

0510
0514
2510
2514

                            Baltimore Branch

0520
0521
0522
0540
0550
0560
0570
2520
2521
2522
2540
2550
2560
2570

                            Charlotte Branch

0530
0531
2530
2531

[[Page 477]]



                             Columbia Office

0532
0539
2532
2539

                            Charleston Office

0515
0519
2515
2519

                     Sixth Federal Reserve District

                    [Federal Reserve Bank of Atlanta]

                               Head Office

0610
0611
0612
0613
2610
2611
2612
2613

                            Birmingham Branch

0620
0621
0622
2620
2621
2622

                           Jacksonville Branch

0630
0631
0632
2630
2631
2632

                            Nashville Branch

0640
0641
0642
2640
2641
2642

                           New Orleans Branch

0650
0651
0652
0653
0654
0655
2650
2651
2652
2653
2654
2655

                              Miami Branch

0660
0670
2660
2670

                    Seventh Federal Reserve District

                    [Federal Reserve Bank of Chicago]

                               Head Office

0710
0711
0712
0719
2710
2711
2712
2719

                             Detroit Branch

0720
0724
2720
2724

                            Des Moines Office

0730
0739
2730
2739

                           Indianapolis Office

0740
0749
2740
2749

                            Milwaukee Office

0750
0759
2750
2759

                     Eighth Federal Reserve District

                   [Federal Reserve Bank of St. Louis]

                               Head Office

0810
0812
0815
0819
0865
2810
2812
2815
2819
2865

                           Little Rock Branch

0820
0829
2820
2829

                            Louisville Branch

0813
0830
0839
0863
2813
2830
2839
2863

                             Memphis Branch

0840
0841
0842
0843
2840
2841
2842
2843

                     Ninth Federal Reserve District

                  [Federal Reserve Bank of Minneapolis]

                               Head Office

0910
0911
0912
0913
0914
0915
0918
0919
2910
2911
2912
0960
2913
2914
2915
2918
2919
2960

                              Helena Branch

0920
0921
0929
2020
2921

                     Tenth Federal Reserve District

                  [Federal Reserve Bank of Kansas City]

                               Head Office

1010
1011
1012
1019
3010
3011
3012
3019

[[Page 478]]



                              Denver Branch

1020
1021
1022
1023
1070
3020
3021
3022
3023
3070

                          Oklahoma City Branch

1030
1031
1039
3030
3031
3039

                              Omaha Branch

P1040
1041
1049
3040
3041
3049

                    Eleventh Federal Reserve District

                    [Federal Reserve Bank of Dallas]

                               Head Office

1110
1111
1113
1119
3110
3111
3113
3119

                             El Paso Branch

1120
1122
1123
1163
3120
3122
3123
3163

                             Houston Branch

1130
1131
3130
3131

                           San Antonio Branch

1140
1149
3140
3149

                    Twelfth Federal Reserve District

                 [Federal Reserve Bank of San Francisco]

                               Head Office

1210
1211
1212
1213
3210
3211
3212
3213

                           Los Angeles Branch

1220
1221
1222
1223
1224
3220
3221
3222
3223
3224

                             Portland Branch

1230
1231
1232
1233
3230
3231
3232
3233

                          Sa1t Lake City Branch

1240
1241
1242
1243
3240
3241
3242
2343

                             Seattle Branch

1250
1251
1252
3250
3251
3252

                          U.S. Treasury Checks

0000 0050 5
0000 0051 8

                           Postal Money Orders

0000 0119 3
0000 0800 2

                         Federal Reserve Offices

0110 0001 5
0111 0048 1
0112 0048 8
0210 0120 8
0220 0026 6
0212 0400 5
0214 0950 9
0213 0500 1
0310 0004 0
0410 0001 4
0420 0043 7
0430 0030 0
0440 0050 3
0510 0003 3
0520 0027 8
0530 0020 6
0539 0008 9
0519 0002 3
0610 0014 6
0620 0019 0
0630 0019 9
0640 0010 1
0650 0021 0
0660 0010 9
0710 0030 1
0720 0029 0
0730 0033 8
0740 0020 1
0750 0012 9
0810 0004 5
0820 0013 8
0830 0059 3
0840 0003 9
0910 0008 0
0920 0026 7
1010 0004 8
1020 0019 9
1030 0024 0
1040 0012 6
1110 0003 8
1120 0001 1
1130 0004 9
1140 0072 1
1210 0037 4
1220 0016 6
1230 0001 3
1240 0031 3
1250 0001 1

                         Federal Home Loan Banks

0110 0053 6
0212 0639 1
0260 0973 9
0410 0291 5
0420 0091 6
0430 0143 5
0610 0876 6
0640 0091 0
0654 0348 0
0710 0450 1
0724 1338 2
0730 0091 4
0740 0101 9
0810 0091 9
0820 0125 0
0910 0091 2
1010 0091 2
1011 0194 7
1020 0603 8
1030 0362 9
1040 0019 7
1110 1083 7
1119 1083 0
1130 1750 8
1210 0070 1
1211 3994 4
1222 4014 6
1250 0050 3


[[Page 479]]


[53 FR 19433, May 27, 1988; 53 FR 24251, June 28, 1988, as amended at 53 
FR 31293, 31416, Aug. 18, 1988; 54 FR 13851, Apr. 6, 1989; Reg. CC, 55 
FR 21855, May 30, 1990; 58 FR 2, Jan. 4, 1993; Reg. CC, 59 FR 48790, 
Sept. 23, 1994; 60 FR 51671, Oct. 3, 1995; 61 FR 25390, May 21, 1996]

  Appendix B to Part 229--Reduction of Schedules for Certain Nonlocal 
                                 Checks

    A depositary bank that is located in the following check processing 
territories shall make funds deposited in an account by a nonlocal check 
described below available for withdrawal not later than the number of 
business days following the banking day on which funds are deposited, as 
specified below.

------------------------------------------------------------------------
                                                              Number of 
                                                               business 
                                                                 days   
                                                              following 
                   Federal Reserve office                    the banking
                                                              day funds 
                                                                 are    
                                                              deposited 
------------------------------------------------------------------------
                           Utica                                        
                                                                        
0210, 0280.................................................            3
                                                                        
                         Nashville                                      
                                                                        
0613, 2613.................................................            3
                                                                        
                        Kansas City                                     
                                                                        
0865, 2865,................................................            3
------------------------------------------------------------------------


[53 FR 19433, May 27, 1988, as amended at 58 FR 2, Jan. 4, 1993; 59 FR 
48790, Sept. 23, 1994; Reg. CC, 60 FR 51671, Oct. 3, 1995; 61 FR 25390, 
May 21, 1996]

        Appendix C to Part 229--Model Forms, Clauses, and Notices

    This appendix contains model disclosure forms, clauses and notices 
to facilitate compliance with the disclosure requirements of the 
regulation. Although use of these forms, clauses and notices is not 
required, banks using them properly to make disclosures required by the 
regulation are deemed to be in compliance.

                 Model Specific Policy Disclosure Forms

C-1  Next-day availability
C-2  Next-day availability and Sec. 229.13 exceptions
C-3  Next-day availability, case-by-case holds to statutory limits, and 
          Sec. 229.13 exceptions
C-4  Holds to statutory limits on all deposits (includes chart)
C-5  Holds to statutory limits on all deposits

                              Model Clauses

C-6  Holds on other funds (check cashing)
C-7  Holds on other funds (other account)
C-8  Appendix B availability (nonlocal checks)
C-9  Automated teller machine deposits (extended hold)
C-10  Cash withdrawal limitation
C-11  Credit union interest payment policy

                              Model Notices

C-12  Exception hold notice
C-13  Reasonable cause hold notice
C-14 One-time notice for large deposit and redeposited check exception 
          holds
C-15  One-time notice for repeated overdraft exception holds
C-16  Case-by-case hold notice
C-17  Notice at locations where employees accept consumer deposits
C-18  Notice at locations where employees accept consumer deposits 
          (case-by-case holds)
C-19  Notice at automated teller machines
C-20  Notice at automated teller machines (delayed receipt)
C-21  Deposit slip notice

                 Model Specific Policy Disclosure Forms

                       C-1--Next-day availability

                     YOUR ABILITY TO WITHDRAW FUNDS

                       at [bank name and location]

    Our policy is to make funds from your deposits available to you on 
the first business day after the day we receive your deposit. Electronic 
direct deposits will be available on the day we receive the deposit. 
Once they are available, you can withdraw the funds in cash and we will 
use the funds to pay checks that you have written.
    For determining the availability of your deposits, every day is a 
business day, except Saturdays, Sundays, and federal holidays. If you 
make a deposit before (time of day) on a business day that we are open, 
we will consider that day to be the day of your deposit. However, if you 
make a deposit after (time of day) or on a day we are not open, we will 
consider that the deposit was made on the next business day we are open.

          C-2--Next-day availability and Sec. 229.13 exceptions

                     YOUR ABILITY TO WITHDRAW FUNDS

                       at [bank name and location]

    Our policy is to make funds from your deposits available to you on 
the first business day after the day we receive your deposit. Electronic 
direct deposits will be available on the day we receive the deposit. 
Once they are available, you can withdraw the funds in cash and we will 
use the funds to pay checks that you have written.

[[Page 480]]

    For determining the availability of your deposits, every day is a 
business day, except Saturdays, Sundays, and federal holidays. If you 
make a deposit before (time of day) on a business day that we are open, 
we will consider that day to be the day of your deposit. However, if you 
make a deposit after (time of day) or on a day we are not open, we will 
consider that the deposit was made on the next business day we are open.

                         Longer Delays May Apply

    Funds you deposit by check may be delayed for a longer period under 
the following circumstances:
    We believe a check you deposit will not be paid.
    You deposit checks totaling more than $5,000 on any one day.
    You redeposit a check that has been returned unpaid.
    You have overdrawn your account repeatedly in the last six months.
    There is an emergency, such as failure of communications or computer 
equipment.
    We will notify you if we delay your ability to withdraw funds for 
any of these reasons, and we will tell you when the funds will be 
available. They will generally be available no later than the (number) 
business day after the day of your deposit.

                     Special Rules for New Accounts

    If you are a new customer, the following special rules will apply 
during the first 30 days your account is open.
    Funds from electronic direct deposits to your account will be 
available on the day we receive the deposit. Funds from deposits of 
cash, wire transfers, and the first $5,000 of a day's total deposits of 
cashier's, certified, teller's, traveler's, and federal, state and local 
government checks will be available on the first business day after the 
day of your deposit if the deposit meets certain conditions. For 
example, the checks must be payable to you (and you may have to use a 
special deposit slip). The excess over $5,000 will be available on the 
ninth business day after the day of your deposit. If your deposit of 
these checks (other than a U.S. Treasury check) is not made in person to 
one of our employees, the first $5,000 will not be available until the 
second business day after the day of your deposit.
    Funds from all other check deposits will be available on the 
(number) business day after the day of your deposit.

C-3--Next-day availability, case-by-case holds to statutory limits, and 
                         Sec. 229.13 exceptions

                     YOUR ABILITY TO WITHDRAW FUNDS

                       at [bank name and location]

    Our policy is to make funds from your deposits available to you on 
the first business day after the day we receive your deposit. Electronic 
direct deposits will be available on the day we receive the deposit. 
Once they are available, you can withdraw the funds in cash and we will 
use the funds to pay checks that you have written.
    For determining the availability of your deposits, every day is a 
business day, except Saturdays, Sundays, and federal holidays. If you 
make a deposit before (time of day) on a business day that we are open, 
we will consider that day to be the day of your deposit. However, if you 
make a deposit after (time of day) or on a day we are not open, we will 
consider that the deposit was made on the next business day we are open.

                         Longer Delays May Apply

    In some cases, we will not make all of the funds that you deposit by 
check available to you on the first business day after the day of your 
deposit. Depending on the type of check that you deposit, funds may not 
be available until the fifth business day after the day of your deposit. 
However, the first $100 of your deposits will be available on the first 
business day.
    If we are not going to make all of the funds from your deposit 
available on the first business day, we will notify you at the time you 
make your deposit. We will also tell you when the funds will be 
available. If your deposit is not made directly to one of our employees, 
or if we decide to take this action after you have left the premises, we 
will mail you the notice by the day after we receive your deposit.
    If you will need the funds from a deposit right away, you should ask 
us when the funds will be available.
    In addition, funds you deposit by check may be delayed for a longer 
period under the following circumstances:
    We believe a check you deposit will not be paid.
    You deposit checks totaling more than $5,000 on any one day.
    You redeposit a check that has been returned unpaid.
     You have overdrawn your account repeatedly in the last six months.
    There is an emergency, such as failure of communications or computer 
equipment.

[[Page 481]]

    We will notify you if we delay your ability to withdraw funds for 
any of these reasons, and we will tell you when the funds will be 
available. They will generally be available no later than the (number) 
business day after the day of your deposit.

                     Special Rules for New Accounts

    If you are a new customer, the following special rules will apply 
during the first 30 days your account is open.
    Funds from electronic direct deposits to your account will be 
available on the day we receive the deposit. Funds from deposits of 
cash, wire transfers, and the first $5,000 of a day's total deposits of 
cashier's, certified, teller's, traveler's, and federal, state and local 
government checks will be available on the first business day after the 
day of your deposit if the deposit meets certain conditions. For 
example, the checks must be payable to you (and you may have to use a 
special deposit slip). The excess over $5,000 will be available on the 
ninth business day after the day of your deposit. If your deposit of 
these checks (other than a U.S. Treasury check) is not made in person to 
one of our employees, the first $5,000 will not be available until the 
second business day after the day of your deposit.
    Funds from all other check deposits will be available on the 
(number) business day after the day of your deposit.

     C-4--Holds to statutory limits on all deposits (includes chart)

       YOUR ABILITY TO WITHDRAW FUNDS at (bank name and location)

    Our policy is to delay the availability of funds that you deposit in 
your account. During the delay, you may not withdraw the funds in cash 
and we will not use the funds to pay checks that you have written.

                Determining the Availability of a Deposit

    The length of the delay is counted in business days from the day of 
your deposit. Every day is a business day except Saturdays, Sundays, and 
federal holidays. If you make a deposit before (time of day) on a 
business day that we are open, we will consider that day to be the day 
of your deposit. However, if you make a deposit after (time of day) or 
on a day we are not open, we will consider that the deposit was made on 
the next business day we are open.
    The length of the delay varies depending on the type of deposit and 
is explained below.

                          Same-Day Availability

    Funds from electronic direct deposits to your account will be 
available on the day we receive the deposit.

                          Next-Day Availability

    Funds from the following deposits are available on the first 
business day after the day of your deposit:
    U.S. Treasury checks that are payable to you.
    Wire transfers.
    Checks drawn on [bank name] (unless [any limitations related to 
branches in different states or check-processing regions]).
    If you make the deposit in person to one of our employees, funds 
from the following deposits are also available on the first business day 
after the day of your deposit:
    Cash.
    State and local government checks that are payable to you [if you 
use a special deposit slip available from (where deposit slip may be 
obtained)].
    Cashier's certified, and teller's checks that are payable to you [if 
you use a special deposit slip available from (where deposit slip may be 
obtained)].
    Federal Reserve Bank checks, Federal Home Loan Bank checks, and 
postal money orders, if these items are payable to you.
    If you do not make your deposit in person to one of our employees 
(for example, if you mail the deposit), funds from these deposits will 
be available on the second business day after the day of your deposit.

                          Other Check Deposits

    To find out when funds from other check deposits will be available, 
look at the first four digits of the routing number on the check:

[[Page 482]]

[GRAPHIC] [TIFF OMITTED] TC27SE91.059


    Some checks are marked ``payable through'' and have a four or nine-
digit number nearby. For these checks, use this four-digit number (or 
the first four digits of the nine-digit number), not the routing number 
on the bottom of the check, to determine if these checks are local or 
nonlocal. Once you have determined the first four digits of the routing 
number (1234 in the examples above), the following chart will show you 
when funds from the check will be available:

------------------------------------------------------------------------
                                                        When funds are  
 First four digits from routing     When funds are      available if a  
             number                   available:      deposit is made on
                                                           a Monday     
------------------------------------------------------------------------
(Local numbers).................  $100 on the first   Tuesday.          
                                   business day                         
                                   after the day of                     
                                   your deposit.                        
                                  Remaining funds on  Wednesday.        
                                   the second                           
                                   business day                         
                                   after the day of                     
                                   your deposit.                        
All other numbers...............  $100 on the first   Tuesday.          
                                   business day                         
                                   after the day of                     
                                   your deposit.                        
                                  Remaining funds on  Monday of the     
                                   the fifth           following week.  
                                   business day                         
                                   after the day of                     
                                   your deposit.                        
------------------------------------------------------------------------

    If you deposit both categories of checks, $100 from the checks will 
be available on the first business day after the day of your deposit, 
not $100 from each category of check.

                         Longer Delays May Apply

    Funds you deposit by check may be delayed for a longer period under 
the following circumstances:
    We believe a check you deposit will not be paid.
    You deposit checks totaling more than $5,000 on any one day.
    You redeposit a check that has been returned unpaid.
    You have overdrawn your account repeatedly in the last six months.
    There is an emergency, such as failure of communications or computer 
equipment.
    We will notify you if we delay your ability to withdraw funds for 
any of these reasons, and we will tell you when the funds will be 
available. They will generally be available no later than the (number) 
business day after the day of your deposit.

[[Page 483]]

                     Special Rules for New Accounts

    If you are a new customer, the following special rules will apply 
during the first 30 days your account is open.
    Funds from electronic direct deposits to your account will be 
available on the day we receive the deposit. Funds from deposits of 
cash, wire transfers, and the first $5,000 of a day's total deposits of 
cashier's, certified, teller's, traveler's, and federal, state and local 
government checks will be available on the first business day after the 
day of your deposit if the deposit meets certain conditions. For 
example, the checks must be payable to you (and you may have to use a 
special deposit slip). The excess over $5,000 will be available on the 
ninth business day after the day of your deposit. If your deposit of 
these checks (other than a U.S. Treasury check) is not made in person to 
one of our employees, the first $5,000 will not be available until the 
second business day after the day of your deposit.
    Funds from all other check deposits will be available on the 
(number) business day after the day of your deposit.

             C-5--Holds to statutory limits on all deposits

       YOUR ABILITY TO WITHDRAW FUNDS at (bank name and location)

    Our policy is to delay the availability of funds that you deposit in 
your account. During the delay, you may not withdraw the funds in cash 
and we will not use the funds to pay checks that you have written.

                Determining the Availability of a Deposit

    The length of the delay is counted in business days from the day of 
your deposit. Every day is a business day except Saturdays, Sundays, and 
federal holidays. If you make a deposit before (time of day) on a 
business day that we are open, we will consider that day to be the day 
of your deposit. However, if you make a deposit after (time of day) or 
on a day we are not open, we will consider that the deposit was made on 
the next business day we are open.
    The length of the delay varies depending on the type of deposit and 
is explained below.

                          Same-Day Availability

    Funds from electronic direct deposits to your account will be 
available on the day we receive the deposit.

                          Next-Day Availability

    Funds from the following deposits are available on the first 
business day after the day of your deposit:
    U.S. Treasury checks that are payable to you.
    Wire transfers.
    Checks drawn on [bank name] (unless [any limitations related to 
branches in different states or check-processing regions]).
    If you make the deposit in person to one of our employees, funds 
from the following deposits are also available on the first business day 
after the day of your deposit:
    Cash.
    State and local government checks that are payable to you [if you 
use a special deposit slip available from (where deposit slip may be 
obtained)].
    Cashier's, certified, and teller's checks that are payable to you 
[if you use a special deposit slip available from (where deposit slip 
may be obtained)].
    Federal Reserve Bank checks, Federal Home Loan Bank checks, and 
postal money orders, if these items are payable to you.
    If you do not make your deposit in person to one of our employees 
(for example, if you mail the deposit), funds from these deposits will 
be available on the second business day after the day of your deposit.

                          Other Check Deposits

    The delay for other check deposits depends on whether the check is a 
local or a nonlocal check. To see whether a check is a local or a 
nonlocal check, look at the routing number on the check:

[[Page 484]]

[GRAPHIC] [TIFF OMITTED] TC27SE91.060


    If the first four digits of the routing number (1234 in the examples 
above) are [local numbers], then the check is a local check. Otherwise, 
the check is a nonlocal check. Some checks are marked ``payable 
through'' and have a four or nine-digit number nearby. For these checks, 
use the four-digit number (or the first four digits of the nine-digit 
number), not the routing number on the bottom of the check, to determine 
if these checks are local or nonlocal. Our policy is to make funds from 
local and nonlocal checks available as follows.
    1. Local checks. The first $100 from a deposit of local checks will 
be available on the first business day after the day of your deposit. 
The remaining funds will be available on the second business day after 
the day of your deposit.
    For example, if you deposit a local check of $700 on a Monday, $100 
of the deposit is available on Tuesday. The remaining $600 is available 
on Wednesday.
    2. Nonlocal checks. The first $100 from a deposit of nonlocal checks 
will be available on the first business day after the day of your 
deposit. The remaining funds will be available on the fifth business day 
after the day of your deposit.
    For example, if you deposit a $700 nonlocal check on a Monday, $100 
of the deposit is available on Tuesday. The remaining $600 is available 
on Monday of the following week.

                         Longer Delays May Apply

    Funds you deposit by check may be delayed for a longer period under 
the following circumstances:
    We believe a check you deposit will not be paid.
    You deposit checks totaling more than $5,000 on any one day.
    You redeposit a check that has been returned unpaid.
    You have overdrawn your account repeatedly in the last six months.
    There is an emergency, such as failure of communications or computer 
equipment.
    We will notify you if we delay your ability to withdraw funds for 
any of these reasons, and we will tell you when the funds will be 
available. They will generally be available no later than the (number) 
business day after the day of your deposit.
    If you deposit both categories of checks, $100 from the checks will 
be available on the first business day after the day of your deposit, 
not $100 from each category of check.

[[Page 485]]

                     Special Rules for New Accounts

    If you are a new customer, the following special rules will apply 
during the first 30 days your account is open.
    Funds from electronic direct deposits to your account will be 
available on the day we receive the deposit. Funds from deposits of 
cash, wire transfers, and the first $5,000 of a day's total deposits of 
cashier's, certified, teller's, traveler's, and federal, state and local 
government checks will be available on the first business day after the 
day of your deposit if the deposit meets certain conditions. For 
example, the checks must be payable to you (and you may have to use a 
special desposit slip). The excess over $5,000 will be available on the 
ninth business day after the day of your deposit. If your deposit of 
these checks (other than a U.S. Treasury check) is not made in person to 
one of our employees, the first $5,000 will not be available until the 
second business day after the day of your deposit.
    Funds from all other check deposits will be available on the 
(number) business day after the day of your deposit.

                              Model Clauses

                C-6--Holds on Other Funds (Check Cashing)

    If we cash a check for you that is drawn on another bank, we may 
withhold the availability of a corresponding amount of funds that are 
already in your account. Those funds will be available at the time funds 
from the check we cashed would have been available if you had deposited 
it.

                C-7--Holds on Other Funds (Other Account)

    If we accept for deposit a check that is drawn on another bank, we 
may make funds from the deposit available for withdrawal immediately but 
delay your availability to withdraw a corresponding amount of funds that 
you have on deposit in another account with us. The funds in the other 
account would then not be available for withdrawal until the time 
periods that are described elsewhere in this disclosure for the type of 
check that you deposited.

             C-8--Appendix B Availability (Nonlocal Checks)

    3. Certain other checks. We can process nonlocal checks drawn on 
financial institutions in certain areas faster than usual. Therefore, 
funds from deposits of checks drawn on institutions in those areas will 
be available to you more quickly. Call us if you would like a list of 
the routing numbers for these institutions.

         C-9--Automated Teller Machine Deposits (Extended Hold)

                  Deposits at Automated Teller Machines

    Funds from any deposits (cash or checks) made at automated teller 
machines (ATMs) we do not own or operate will not be available until the 
fifth business day after the day of your deposit. This rule does not 
apply at ATMs that we own or operate.
    [A list of our ATMs is enclosed.]
    or
    [A list of ATMs where you can make deposits but that are not owned 
or operated by us is enclosed.]
    or
    [All ATMs that we own or operate are identified as our machines.]
    C-10--Cash Withdrawal Limitation
    1. Local checks. The first $l00 from a deposit of local checks will 
be available on the first business day after the day of your deposit to 
pay checks you have written to others. All of the remaining funds will 
be available on the second business day after the day of your deposit to 
pay checks you have written to others.
    The first $100 will also be available for withdrawal in cash on the 
first business day after the day of your deposit. An additional $400 of 
the deposit may be withdrawn in cash at or after (time no later than 
5:00 p.m.) on the second business day after the day of your deposit. All 
of the remaining funds will be available for cash withdrawal on the 
third business day after the day of your deposit.
    For example, if you deposit a local check of $700 on a Monday, $100 
of the deposit is available on Tuesday to pay checks to others and to 
withdraw in cash. The rest is available to pay checks on Wednesday. At 
or after (time no later than 5:00 p.m.) on Wednesday you may withdraw 
another $400 of the deposit in cash, and you may withdraw the rest in 
cash on Thursday.
    2. Nonlocal checks. The first $100 from a deposit of nonlocal checks 
will be available on the first business day after the day of your 
deposit to pay checks you have written to others. All of the remaining 
funds will be available on the fifth business day after the day of your 
deposit to pay checks you have written to others.
    The first $100 will also be available for withdrawal in cash on the 
first business day after the day of your deposit. An additional $400 of 
the deposit may be withdrawn in cash at or after (time no later than 
5:00 p.m.) on the fifth business day after the day of your deposit. All 
of the remaining funds will be available for cash withdrawal on the 
sixth business day after the day of your deposit.
    For example, if you deposit a nonlocal check of $700 on a Monday, 
$100 of the deposit is available on Tuesday to pay checks to others and 
to withdraw in cash. The rest is available to pay checks on Monday of 
the

[[Page 486]]

following week. At or after (time no later than 5:00 p.m.) on that 
Monday, you may withdraw another $400 of the deposit in cash. The rest 
may be withdrawn in cash on Tuesday of that following week.

               C-11--Credit Union Interest Payment Policy

                         Interest Payment Policy

    If we receive a deposit to your account on or before the tenth of 
the month, you begin earning interest on the deposit (whether it was a 
deposit of cash or checks) as of the first day of that month. If we 
receive the deposit after the tenth of the month, you begin earning 
interest on the deposit as of the first of the following month. For 
example, a deposit made on June 7 earns interest from June l, while a 
deposit made on June 17 earns interest from July 1.

                              Model Notices

                       C-12--Exception hold notice

                             NOTICE OF HOLD

    Account number: (number)
    Date of deposit: (date)
    Amount of deposit: (amount)

    We are delaying the availability of $(amount being held) from this 
deposit. These funds will be available on the (number) business day 
after the day of your deposit.
    We are taking this action because:
--A check you deposited was previously returned unpaid.
--You have overdrawn your account repeatedly in the last six months.
--The checks you deposited on this day exceed $5,000.
--An emergency, such as failure of communications or computer equipment, 
has occurred.
--We believe a check you deposited will not be paid for the following 
reasons:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
    [If you did not receive this notice at the time you made the deposit 
and the check you deposited is paid, we will refund to you any fees for 
overdrafts or returned checks that result solely from the additional 
delay that we are imposing. To obtain a refund of such fees, 
(description of procedure for obtaining refund).]

                   C-13--Reasonable cause hold notice

                             NOTICE OF HOLD

    Account number: (number)
    Date of deposit: (date)
    Amount of deposit: (amount)

    We are delaying the availability of the funds you deposited by the 
following check:
    (description of check, such as amount and drawer)
    These funds will be available on the (number) business day after the 
day of your deposit. The reason for the delay is explained below:
--We received notice that the check is being returned unpaid.
--We have confidential information that indicates that the check may not 
be paid.
--The check is drawn on an account with repeated overdrafts.
--We are unable to verify the endorsement of a joint payee.
--Some information on the check is not consistent with other information 
on the check.
--There are erasures or other apparent alterations on the check.
--The routing number of the paying bank is not a current routing number.
--The check is postdated or has a stale date.
--Information from the paying bank indicates that the check may not be 
paid.
--We have been notified that the check has been lost or damaged in 
collection.
--Other:
_______________________________________________________________________
    [If you did not receive this notice at the time you made the deposit 
and the check you deposited is paid, we will refund to you any fees for 
overdrafts or returned checks that result solely from the additional 
delay that we are imposing. To obtain a refund of such fees, 
(description of procedure for obtaining refund).]

C-14--One-time notice for large deposit and redeposited check exception 
                                  holds

                             NOTICE OF HOLD

    If you deposit into your account:
     Checks totaling more than $5,000 on any one day, the first 
$5,000 deposited on any one banking day will be available to you 
according to our general policy. The amount in excess of $5,000 will 
generally be available on the [number] business day for checks drawn on 
[bank], the [number] business day for local checks and [number] business 
day for nonlocal checks after the day of your deposit. If checks (not 
drawn on us) that otherwise would receive next-day availability exceed 
$5,000, the excess will be treated as either local or nonlocal checks 
depending on the location of the paying bank. If your check deposit, 
exceeding $5,000 on any one day, is a mix of local checks, nonlocal 
checks, checks drawn on [bank], or checks that generally receive next-
day availability, the excess will be calculated by first adding together 
the [    ], then the [    ], then the [    ], then the [    ].
     A check that has been returned unpaid, the funds will 
generally be available on the [number] business day for checks drawn on 
[bank], the [number] business day for local checks and the [number] 
business day for

[[Page 487]]

nonlocal checks after the day of your deposit. Checks (not drawn on us) 
that otherwise would receive next-day availability will be treated as 
either local or nonlocal checks depending on the location of the paying 
bank.

       C-15--One-time notice for repeated overdraft exception hold

                             NOTICE OF HOLD

    Account Number: [Number]
    Date of Notice: [Date]
    We are delaying the availability of checks deposited into your 
account due to repeated overdrafts of your account. For the next six 
months, deposits will generally be available on the [number] business 
day for checks drawn on [bank], the [number] business day for local 
checks, the [number] business day for nonlocal checks after the day of 
your deposit. Checks (not drawn on us) that otherwise would have 
received next-day availability will be treated as either local or 
nonlocal checks depending on the location of the paying bank.

                     C-16--Case-by-case hold notice

                             NOTICE OF HOLD

    Account number: (number) 
    Date of deposit: (date)
    Amount of deposit: (amount)

    We are delaying the availability of $(amount being held) from this 
deposit. These funds will be available on the (number) business day 
after the day of your deposit.
    [If you did not receive this notice at the time you made the deposit 
and the check you deposited is paid, we will refund to you any fees for 
overdrafts or returned checks that result solely from the additional 
delay that we are imposing. To obtain a refund of such fees, 
(description of procedure for obtaining refund).]

   C-17--Notice at locations where employees accept consumer deposits

                        FUNDS AVAILABILITY POLICY

------------------------------------------------------------------------
                                             When funds can be withdrawn
          Description of deposit                  by cash or check      
------------------------------------------------------------------------
Direct deposits...........................  The day we receive the      
                                             deposit                    
Cash, wire transfers, cashier's,            The first business day after
 certified, teller's, or government          the day of deposit.        
 checks, checks on (bank name) [unless                                  
 (any limitation reIated to branches in                                 
 different check processing regions)], and                              
 the first $100 of a day's deposits of                                  
 other checks.                                                          
Local checks..............................  The second business day     
                                             after the day of deposit.  
Nonlocal checks...........................  The fifth business day after
                                             the day of deposit.        
------------------------------------------------------------------------

   C-18--Notice at locations where employees accept consumer deposits 
                          (case-by-case holds)

                        FUNDS AVAILABILITY POLICY

    Our general policy is to allow you to withdraw funds deposited in 
your account on the (number) business day after the day we receive your 
deposit. Funds from electronic direct deposits will be available on the 
day we receive the deposit. In some cases, we may delay your ability to 
withdraw funds beyond the (number) business day. Then, the funds will 
generally be available by the fifth business day after the day of 
deposit.

                C-19--Notice at Automated Teller Machines

                        AVAILABILITY OF DEPOSITS

    Funds from deposits may not be available for immediate withdrawal. 
Please refer to your institution's rules governing funds availability 
for details.

       C-20--Notice at Automated Teller Machines (Delayed Receipt)

                                 NOTICE

    Deposits at this ATM between (day) and (day) will not be considered 
received until (day). The availability of funds from the deposit may be 
delayed as a result.

                        C-21--Deposit Slip Notice

    Deposits may not be available for immediate withdrawal.

[53 FR 19433, May 27, 1988, as amended at 53 FR 31293, Aug. 18, 1988; 
Reg. CC, 55 FR 21855, May 30, 1990; 55 FR 50818, Dec. 11, 1990; 56 FR 
7802, Feb. 26, 1991; 57 FR 3280, Jan. 29, 1992; 60 FR 51671, Oct. 3, 
1995]

                    Appendix D--Indorsement Standards

    1. The depositary bank shall indorse a check according to the 
following specifications:
     The indorsement shall contain--
--The bank's nine-digit routing number, set off by arrows at each end of 
the number and pointing toward the number;
--The bank's name/location; and
--The indorsement date.
     The indorsement may also contain--
--An optional branch identification;
--An optional trace/sequence number;
--An optional telephone number for receipt of notification of large-
dollar returned checks; and

[[Page 488]]

--Other optional information provided that the inclusion of such 
information does not interfere with the readability of the indorsement.
     The indorsement shall be written in dark purple or black 
ink.
     The indorsement shall be placed on the back of the check so 
that the routing number is wholly contained in the area 3.0 inches from 
the leading edge of the check to 1.5 inches from the trailing edge of 
the check.\1\
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    \1\ The leading edge is defined as the right side of the check 
looking at it from the front. The trailing edge is defined as the left 
side of the check looking at it from the front. See American National 
Standards Committee on Financial Services Specification for the 
Placement and Location of MICR Printing, X 9.13.
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    2. Each subsequent collecting bank indorser shall protect the 
identifiability and legibility of the depositary bank indorsement by:
     Including only its nine-digit routing number (without 
arrows), the indorsement date, and an optional trace/sequence number;
     Using an ink color other than purple; and
     Indorsing in the area on the back of the check from 0.0 
inches to 3.0 inches from the leading edge of the check.
    3. Each returning bank indorser shall protect the identifiability 
and legibility of the depositary bank indorsement by:
     Using an ink color other than purple;
     Staying clear of the area on the back of the check from 3.0 
inches from the leading edge of the check to the trailing edge of the 
check.

                   Appendix E to Part 229--Commentary

                             I. Introduction

                              A. Background

    1. The Board interpretations, which are labeled ``Commentary'' and 
follow each section of Regulation CC (12 CFR Part 229), provide 
background material to explain the Board's intent in adopting a 
particular part of the regulation; the Commentary also provides examples 
to aid in understanding how a particular requirement is to work. Under 
section 611(e) of the Expedited Funds Availability Act (12 U.S.C. 
4010(e)), no provision of section 611 imposing any liability shall apply 
to any act done or omitted in good faith conformity with any rule, 
regulation, or interpretation thereof by the Board of Governors of the 
Federal Reserve System, notwithstanding the fact that after such act or 
omission has occurred, such rule, regulation, or interpretation is 
amended, rescinded, or determined by judicial or other authority to be 
invalid for any reason. The Commentary is an ``interpretation'' of a 
regulation by the Board within the meaning of section 611.

                     II. Section 229.2  Definitions

                              A. Background

    1. Section 229.2 defines the terms used in the regulation. For the 
most part, terms are defined as they are in section 602 of the Expedited 
Funds Availability Act (12 U.S.C. 4001). The Board has made a number of 
changes for the sake of clarity, to conform the terminology to that 
which is familiar to the banking industry, to define terms that are not 
defined in the Act, and to carry out the purposes of the Act. The Board 
also has incorporated by reference the definitions of the Uniform 
Commercial Code where appropriate. Some of Regulation CC's definitions 
are self-explanatory and therefore are not discussed in this Commentary.

                          B. 229.2(a)  Account

    1. The Act defines account to mean ``a demand deposit account or 
similar transaction account at a depository institution.'' The 
regulation defines account in terms of the definition of transaction 
account in the Board's Regulation D (12 CFR part 204). The definition of 
account in Regulation CC, however, excludes certain deposits, such as 
nondocumentary obligations (see 12 CFR 204.2(a)(1)(vii)), that are 
covered under the definition of transaction account in Regulation D. The 
definition applies to accounts with general third party payment powers 
but does not cover time deposits or savings deposits, including money 
market deposit accounts, even though they may have limited third party 
payment powers. The Board believes that it is appropriate to exclude 
these accounts because of the reference to demand deposits in the Act, 
which suggests that the Act is intended to apply only to accounts that 
permit unlimited third party transfers.
    2. The term account also differs from the definition of transaction 
account in Regulation D because the term account refers to accounts held 
at banks. Under Subparts A and C, the term bank includes not only any 
depository institution, as defined in the Act, but also any person 
engaged in the business of banking, such as a Federal Reserve Bank, a 
Federal Home Loan Bank, or a private banker that is not subject to 
Regulation D. Thus, accounts at these institutions benefit from the 
expeditious return requirements of Subpart C.
    3. Interbank deposits, including accounts of offices of domestic 
banks or foreign banks located outside the United States, and direct and 
indirect accounts of the United States Treasury (including Treasury 
General Accounts and Treasury Tax and Loan Deposit Accounts) are exempt 
from Regulation CC.

[[Page 489]]

               C. 229.2(b)  Automated Clearinghouse (ACH)

    1. The Board has defined automated clearinghouse as a facility that 
processes debit and credit transfers under rules established by a 
Federal Reserve Bank operating circular governing automated 
clearinghouse items or the rules of an ACH association. ACH credit 
transfers are included in the definition of electronic payment.
    2. The reference to ``debit and credit transfers'' does not refer to 
the corresponding debit and credit entries that are part of the same 
transaction, but to different kinds of ACH payments. In an ACH credit 
transfer, the originator orders that its account be debited and another 
account credited. In an ACH debit transfer, the originator, with prior 
authorization, orders another account to be debited and the originator's 
account to be credited.
    3. A facility that handles only wire transfers (defined elsewhere) 
is not an ACH.

               D. 229.2(c) Automated Teller Machine (ATM)

    1. ATM is not defined in the Act. The regulation defines an ATM as 
an electronic device at which a natural person may make deposits to an 
account by cash or check and perform other account transactions. Point-
of-sale terminals, machines that only dispense cash, night depositories, 
and lobby deposit boxes are not ATMs within the meaning of the 
definition, either because they do not accept deposits of cash or checks 
(e.g., point-of-sale terminals and cash dispensers) or because they only 
accept deposits (e.g., night depositories and lobby boxes) and cannot 
perform other transactions. A lobby deposit box or similar receptacle in 
which written payment orders or deposits may be placed is not an ATM.
    2. A facility may be an ATM within this definition even if it is a 
branch under state or federal law, although an ATM is not a branch as 
that term is used in this regulation.

                  E. 229.2(d) Available for Withdrawal

    1. Under this definition, when funds become available for 
withdrawal, the funds may be put to all uses for which the customer may 
use actually and finally collected funds in the customer's account under 
the customer's account agreement with the bank. Examples of such uses 
include payment of checks drawn on the account, certification of checks, 
electronic payments, and cash withdrawals. Funds are available for these 
uses notwithstanding provisions of other law that may restrict the use 
of uncollected funds (e.g., 18 U.S.C. 1004; 12 U.S.C. 331).
    2. If a bank makes funds available to a customer for a specific 
purpose (such as paying checks that would otherwise overdraw the 
customer's account and be returned for insufficient funds) before the 
funds must be made available under the bank's policy or this regulation, 
it may nevertheless apply a hold consistent with this regulation to 
those funds for other purposes (such as cash withdrawals). For purposes 
of this regulation, funds are considered available for withdrawal even 
though they are being held by the bank to satisfy an obligation of the 
customer other than the customer's potential liability for the return of 
the check. For example, funds are available for withdrawal even though 
they are being held by a bank to satisfy a garnishment, tax levy, or 
court order restricting disbursements from the account, or to satisfy 
the customer's liability arising from the certification of a check, sale 
of a cashier's or teller's check, guaranty or acceptance of a check, or 
similar transaction.

                            F. 229.2(e) Bank

    1. The Act uses the term depository institution, which it defines by 
reference to section 19(b)(1)(A)(i) through (vi) of the Federal Reserve 
Act (12 U.S.C. 461(b)(1)(A)(i) through (vi)). This regulation uses the 
term bank, a term that conforms to the usage the Board has previously 
adopted in Regulation J. Bank is also used in Articles 4 and 4A of the 
Uniform Commercial Code.
    2. Bank is defined to include depository institutions, such as 
commercial banks, savings banks, savings and loan associations, and 
credit unions as defined in the Act, and U.S. branches and agencies of 
foreign banks. For purposes of Subpart B, the term does not include 
corporations organized under section 25A of the Federal Reserve Act, 12 
U.S.C. 611-631 (Edge corporations) or corporations having an agreement 
or undertaking with the Board under section 25 of the Federal Reserve 
Act, 12 U.S.C. 601-604a (agreement corporations). For purposes of 
Subpart C, and in connection therewith, Subpart A, any Federal Reserve 
Bank, Federal Home Loan Bank, or any other person engaged in the 
business of banking is regarded as a bank. The phrase ``any other person 
engaged in the business of banking'' is derived from U.C.C. 1-201(4), 
and is intended to cover entities that handle checks for collection and 
payment, such as Edge and agreement corporations, commercial lending 
companies under 12 U.S.C. 3101, certain industrial banks, and private 
bankers, so that virtually all checks will be covered by the same rules 
for forward collection and return, even though they may not be covered 
by the requirements of Subpart B. For the purposes of Subpart C, and in 
connection therewith, Subpart A, the term also may include a state or a 
unit of general local government to the extent that it pays warrants or 
other drafts drawn directly on the state or local government itself, and 
the warrants or other drafts are sent to the state

[[Page 490]]

or local government for payment or collection.
    3. Unless otherwise specified, the term bank includes all of a 
bank's offices in the United States. The regulation does not cover 
foreign offices of U.S. banks.

              G. 229.2(f) Banking Day and (g) Business Day

    1. The Act defines business day as any day excluding Saturdays, 
Sundays, and legal holidays. Legal holiday, however, is not defined, and 
the variety of local holidays, together with the practice of some banks 
to close midweek, makes the Act's definition difficult to apply. The 
Board believes that two kinds of business days are relevant. First, when 
determining the day when funds are deposited or when a bank must perform 
certain actions (such as returning a check), the focus should be on a 
day that the bank is actually open for business. Second, when counting 
days for purposes of determining when funds must be available under the 
regulation or when notice of nonpayment must be received by the 
depositary bank, there would be confusion and uncertainty in trying to 
follow the schedule of a particular bank, and there is less need to 
identify a day when a particular bank is open. Most banks that act as 
intermediaries (large correspondents and Federal Reserve Banks) follow 
the same holiday schedule. Accordingly, the regulation has two 
definitions: Business day generally follows the standard Federal Reserve 
Bank holiday schedule (which is followed by most large banks), and 
banking day is defined to mean that part of a business day on which a 
bank is open for substantially all of its banking activities.
    2. The definition of banking day corresponds to the definition of 
banking day in U.C.C. 4-104(a)(3), except that a banking day is defined 
in terms of a business day. Thus, if a bank is open on Saturday, 
Saturday might be a banking day for purposes of the U.C.C., but it would 
not be a banking day for purposes of Regulation CC because Saturday is 
never a business day under the regulation.
    3. The definition of banking day is phrased in terms of when ``an 
office of a bank is open'' to indicate that a bank may observe a banking 
day on a per-branch basis. A deposit made at an ATM or off-premise 
facility (such as a remote depository or a lock box) is considered made 
at the branch holding the account into which the deposit is made for the 
purpose of determining the day of deposit. All other deposits are 
considered made at the branch at which the deposit is received. For 
example, under Sec. 229.19(a)(1), funds deposited at an ATM are 
considered deposited at the time they are received at the ATM. On a 
calendar day that is a banking day for the branch or other location of 
the depositary bank at which the account is maintained, a deposit 
received at an ATM before the ATM's cut-off hour is considered deposited 
on that banking day, and a deposit received at an ATM after the ATM's 
cut-off hour is considered deposited on the next banking day of the 
branch or other location where the account is maintained. On a calendar 
day that is not a banking day for the account-holding location, all ATM 
deposits are considered deposited on that location's next banking day. 
This rule for determining the day of deposit also would apply to a 
deposit to an off-premise facility, such as a night depository or lock 
box, which is considered deposited when removed from the facility and 
available for processing under Sec. 229.19(a)(3). If an unstaffed 
facility, such as a night depository or lock box, is on branch premises, 
the day of deposit is determined by the banking day at the branch at 
which the deposit is received, whether or not it is the branch at which 
the account is maintained.

                            H. 229.2(h) Cash

    1. Cash means U.S. coins and currency. The phrase in the Act 
``including Federal Reserve notes'' has been deleted as unnecessary. 
(See 31 U.S.C. 5103.)

                       I. 229.2(i) Cashier's Check

    1. The regulation adds to the second item in the Act's definition of 
cashier's check the phrase, ``on behalf of the bank as drawer,'' to 
clarify that the term cashier's check is intended to cover only checks 
that a bank draws on itself. The definition of cashier's check includes 
checks provided to a customer of the bank in connection with customer 
deposit account activity, such as account disbursements and interest 
payments. The definition also includes checks acquired from a bank by 
noncustomers for remittance purposes, such as certain loan disbursement 
checks. Cashier's checks provided to customers or others are often 
labeled as ``cashier's check,'' ``officer's check,'' or ``official 
check.'' The definition excludes checks that a bank draws on itself for 
other purposes, such as to pay employees and vendors, and checks issued 
by the bank in connection with a payment service, such as a payroll or a 
bill-paying service. Cashier's checks generally are sold by banks to 
substitute the bank's credit for the customer's credit and thereby 
enhance the collectibility of the checks. A check issued in connection 
with a payment service generally is provided as a convenience to the 
customer rather than as a guarantee of the check's collectibility. In 
addition, such checks are often more difficult to distinguish from other 
types of checks than are cashier's checks as defined by this regulation.

                       J. 229.2(j) Certified Check

    1. The Act defines a certified check as one to which a bank has 
certified that the drawer's signature is genuine and that the bank

[[Page 491]]

has set aside funds to pay the check. Under the Uniform Commercial Code, 
certification of a check means the bank's signed agreement that it will 
honor the check as presented (U.C.C. 3-409). The regulation defines 
certified check to include both the Act's and U.C.C.'s definitions.

                            K. 229.2(k) Check

    1. Check is defined in section 602(7) of the Act as a negotiable 
demand draft drawn on or payable through an office of a depository 
institution located in the United States, excluding noncash items. The 
regulation includes six categories of instruments within the definition 
of check.
    2. The first category is negotiable demand drafts drawn on, or 
payable through or at, an office of a bank. As the definition of bank 
includes only offices located in the United States, this category is 
limited to checks drawn on, or payable through or at, a banking office 
located in the United States.
    3. The Act treats drafts payable through a bank as checks, even 
though under the U.C.C. the payable-through bank is a collecting bank to 
make presentment and generally is not authorized to make payment (U.C.C. 
4-106(a)). The Act does not expressly address items that are payable at 
a bank. This regulation treats both payable-through and payable-at 
demand drafts as checks. The Board believes that treating demand drafts 
payable at a bank as checks will not have a substantial effect on the 
operations of payable-at banks--by far the largest proportion of 
payable-at items are not negotiable demand drafts, but time items, such 
as commercial paper, bonds, notes, bankers' acceptances, and securities. 
These time items are not covered by the requirements of the Act or this 
regulation. (The treatment of payable-through drafts is discussed in 
greater detail in connection with the definitions of local check and 
paying bank.)
    4. The second category is checks drawn on Federal Reserve Banks and 
Federal Home Loan Banks. Principal and interest payments on federal debt 
instruments often are paid with checks drawn on a Federal Reserve Bank 
as fiscal agent of the United States, and these fiscal agency checks are 
indistinguishable from other checks drawn on Federal Reserve Banks. (See 
31 CFR Part 355.) Federal Reserve Bank checks also are used by some 
banks as substitutes for cashier's or teller's checks. Similarly, 
savings and loan associations often use checks drawn on Federal Home 
Loan Banks as teller's checks. The definition of check includes checks 
drawn on Federal Home Loan Banks and Federal Reserve Banks because in 
many cases they are the functional equivalent of Treasury checks or 
teller's checks.
    5. The third and fourth categories of instrument included in the 
definition of check refer to government checks. The Act refers to checks 
drawn on the U.S. Treasury, even though these instruments are not drawn 
on or payable through an office of a depository institution, and checks 
drawn by state and local governments. The Act also gives the Board 
authority to define functionally equivalent instruments as depository 
checks.\1\ Thus, the Act is intended to apply to instruments other than 
those that meet the strict definition of check in section 602(7) of the 
Act. Checks and warrants drawn by states and local governments often are 
used for the purposes of making unemployment compensation payments and 
other payments that are important to the recipients. Consequently, the 
Board has expressly defined check to include drafts drawn on the U.S. 
Treasury and drafts or warrants drawn by a state or a unit of general 
local government on itself.
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    \1\ Section 602(11) of the Act (12 U.S.C. 4001(11)) defines 
``depository check'' as ``any cashier's check, certified check, teller's 
check, and any other functionally equivalent instrument as determined by 
the Board.''
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    6. The fifth category of instrument included in the definition of 
check is U.S. Postal Service money orders. These instruments are defined 
as checks because they often are used as a substitute for checks by 
consumers, even though money orders are not negotiable under Postal 
Service regulations. The Board has not provided specific rules for other 
types of money orders; these instruments generally are drawn on or 
payable through or payable at banks and are treated as checks on that 
basis.
    7. The sixth and final category of instrument included in the 
definition of check is traveler's checks drawn on or payable through or 
at a bank. Traveler's check is defined in paragraph (hh) of this 
section.
    8. Finally, for the purposes of Subpart C, and in connection 
therewith, Subpart A, the definition of check includes nonnegotiable 
demand drafts because these instruments are often handled as cash items 
in the forward collection process.
    9. The definition of check does not include an instrument payable in 
a foreign currency (i.e., other than in United States money as defined 
in 31 U.S.C. 5101) or a credit card draft (i.e., a sales draft used by a 
merchant or a draft generated by a bank as a result of a cash advance), 
or an ACH debit transfer. The definition of check includes a check that 
a bank may supply to a customer as a means of accessing a credit line 
without the use of a credit card.

                         L. 229.2(l) [Reserved]

                   M. 229.2(m) Check Processing Region

    1. The Act defines this term as ``the geographic area served by a 
Federal Reserve

[[Page 492]]

bank check processing center or such larger area as the Board may 
prescribe by regulations.'' The Board has defined check processing 
region as the territory served by one of the 46 Federal Reserve head 
offices, branches, or regional check processing centers. Appendix A 
includes a list of routing numbers arranged by Federal Reserve Bank 
office. The definition of check processing region is key to determining 
whether a check is considered local or nonlocal.

                      N. 229.2(n) Consumer Account

    1. Consumer account is defined as an account used primarily for 
personal, family, or household purposes. An account that does not meet 
the definition of consumer account is a nonconsumer account. Both 
consumer and nonconsumer accounts are subject to the requirements of 
this regulation, including the requirement that funds be made available 
according to specific schedules and that the bank make specified 
disclosures of its availability policies. Section 229.18(b) (notices at 
branch locations) and Sec. 229.18(e) (notice of changes in policy) apply 
only to consumer accounts. Section 229.13(g)(2) (one-time exception 
notice) and Sec. 229.19(d) (use of calculated availability) apply only 
to nonconsumer accounts.

                       O. 229.2(o) Depositary Bank

    1. The regulation uses the term depositary bank rather than the term 
receiving depository institution. Receiving depository institution is a 
term unique to the Act, while depositary bank is the term used in 
Article 4 of the U.C.C. and Regulation J.
    2. A depositary bank includes the bank in which the check is first 
deposited. If a foreign office of a U.S. or foreign bank sends checks to 
its U.S. correspondent bank for forward collection, the U.S. 
correspondent is the depositary bank because foreign offices of banks 
are not included in the definition of bank.
    3. If a customer deposits a check in its account at a bank, the 
customer's bank is the depositary bank with respect to the check. For 
example, if a person deposits a check into an account at a 
nonproprietary ATM, the bank holding the account into which the check is 
deposited is the depositary bank even though another bank may service 
the nonproprietary ATM and send the check for collection. (Under 
Sec. 229.35 the depositary bank may agree with the bank servicing the 
nonproprietary ATM to have the servicing bank place its own indorsement 
on the check as the depositary bank. For the purposes of Subpart C, the 
bank applying its indorsement as the depositary bank indorsement on the 
check is the depositary bank.)
    4. For purposes of Subpart B, a bank may act as both the depositary 
bank and the paying bank with respect to a check, if the check is 
payable by the bank in which it was deposited, or if the check is 
payable by a nonbank payor and payable through or at the bank in which 
it was deposited. A bank also is considered a depositary bank with 
respect to checks it receives as payee. For example, a bank is a 
depositary bank with respect to checks it receives for loan repayment, 
even though these checks are not deposited in an account at the bank. 
Because these checks would not be ``deposited to accounts,'' they would 
not be subject to the availability or disclosure requirements of Subpart 
B.

                     P. 229.2(p) Electronic Payment

    1. Electronic payment is defined to mean a wire transfer as defined 
in Sec. 229.2(11) or an ACH credit transfer. The Act requires that funds 
deposited by wire transfer be made available for withdrawal on the 
business day following deposit but expressly leaves the definition of 
the term wire transfer to the Board. Because ACH credit transfers 
frequently involve important consumer payments, such as wages, the 
regulation requires that funds deposited by ACH credit transfers be 
available for withdrawal on the business day following deposit.
    2. ACH debit transfers, even though they may be transmitted 
electronically, are not defined as electronic payments because the 
receiver of an ACH debit transfer has the right to return the transfer, 
which would reverse the credit given to the originator. Thus, ACH debit 
transfers are more like checks than wire transfers. Further, bank 
customers that receive funds by originating ACH debit transfers are 
primarily large corporations, which generally would be able to negotiate 
with their banks for prompt availability.
    3. A point-of-sale transaction would not be considered an electronic 
payment unless the transaction was effected by means of an ACH credit 
transfer or wire transfer.

                     Q. 229.2(q) Forward Collection

    1. Forward collection is defined to mean the process by which a bank 
sends a check to the paying bank for payment as distinguished from the 
process by which the check is returned after nonpayment. Noncash 
collections are not included in the term forward collection.

                         R. 229.2(r) Local Check

    1. Local check is defined as a check payable by or at a local paying 
bank, or, in the case of nonbank payors, payable through a local paying 
bank. A check payable by a local bank but payable through a nonlocal 
bank is a local check. Conversely, a check payable through a local bank 
but payable by a nonlocal bank is a nonlocal check. Where

[[Page 493]]

two banks are named on a check and neither is designated as a payable-
through bank, the check is considered payable by either bank and may be 
considered local or nonlocal depending on the bank to which it is sent 
for payment. Generally, the depositary bank may rely on the routing 
number to determine whether a check is local or nonlocal. Appendix A 
includes a list of routing numbers arranged by Federal Reserve Bank 
Office to assist persons in determining whether or not such a check is 
local. If, however, a check is payable by one bank but payable through 
another bank, the routing number appearing on the check will be that of 
the payable-through bank, not the paying bank. Many credit union share 
drafts and certain other checks payable by banks are payable through 
other banks. In such cases, the routing number cannot be relied on to 
determine whether the check is local or nonlocal. For payable-through 
checks that meet the labeling requirements of Sec. 229.36(e), the 
depositary bank may rely on the four-digit routing symbol of the paying 
bank that is printed on the face of the check as required by that 
section, e.g., in the title plate, but not on the first four digits of 
the payable-through bank's routing number printed in magnetic ink in the 
MICR line or in fractional form, to determine whether the check is local 
or nonlocal.

                      S. 229.2(s) Local Paying Bank

    1. Local paying bank is defined as a paying bank located in the same 
check processing region as the branch or proprietary ATM of the 
depositary bank.
    2. Examples.
    a. If a check that is payable by a bank that is located in the same 
check processing region as the depositary bank is payable through a bank 
located in another check processing region, the check is considered 
local or nonlocal depending on the location of the bank by which it is 
payable even if the check is sent to the nonlocal bank for collection.
    b. The location of the depositary bank is determined by the physical 
location of the branch or proprietary ATM at which a check is deposited. 
If the branch of the depositary bank located in one check processing 
region sends a check to the depositary bank's central facility in 
another check processing region, and the central facility is in the same 
check processing region as the paying bank, the check is still 
considered nonlocal. (See Commentary on definition of paying bank.)

                     T. 229.2(t) Merger Transaction

    1. Merger transaction is a term used in Subparts B and C in 
connection with transition rules for merged banks. It encompasses 
mergers, consolidations, and purchase/assumption transactions of the 
type that usually must be approved under the Bank Merger Act (12 U.S.C. 
1828(c)) or similar statutes; it does not encompass acquisitions of a 
bank under the Bank Holding Company Act (12 U.S.C. 1842) where an 
acquired bank maintains its separate corporate existence.
    2. Regulation CC adopts a one-year transition period for banks that 
are party to a merger transaction during which the merged banks will 
continue to be treated as separate entities. (See Secs. 229.19(g) and 
229.40.)

                        U. 229.2(u) Noncash Item

    1. The Act defines the term check to exclude noncash items, and 
defines noncash items to include checks to which another document is 
attached, checks accompanied by special instructions, or any similar 
item classified as a noncash item in the Board's regulation. To qualify 
as a noncash item, an item must be handled as such and may not be 
handled as a cash item by the depositary bank.
    2. The regulation's definition of noncash item also includes checks 
that consist of more than a single thickness of paper (except checks 
that qualify for handling by automated check processing equipment, e.g. 
those placed in carrier envelopes) and checks that have not been 
preprinted or post-encoded in magnetic ink with the paying bank's 
routing number, as well as checks with documents attached or accompanied 
by special instructions. (In the context of this definition, paying bank 
refers to the paying bank as defined for purposes of Subpart C.)
    3. A check that has been preprinted or post-encoded with a routing 
number that has been retired (e.g., because of a merger) for at least 
three years is a noncash item unless the current number is added for 
processing purposes by placing the check in an encoded carrier envelope 
or adding a strip to the check.
    4. Checks that are accompanied by special instructions are also 
noncash items. For example, a person concerned about whether a check 
will be paid may request the depositary bank to send a check for 
collection as a noncash item with an instruction to the paying bank to 
notify the depositary bank promptly when the check is paid or 
dishonored.
    5. For purposes of forward collection, a copy of a check is neither 
a check nor a noncash item, but may be treated as either. For purposes 
of return, a copy is generally a notice in lieu of return. (See 
Secs. 229.30(f) and 229.31(f).)

[[Page 494]]

                         V. 229.2(v) [Reserved]

                         W. 229.2(w) [Reserved]

                         X. 229.2(x) [Reserved]

                         Y. 229.2(y) [Reserved]

                         Z. 229.2(z) Paying Bank

    1. The regulation uses this term in lieu of the Act's ``originating 
depository institution.'' For purposes of Subpart B, the term paying 
bank includes the payor bank, the payable-at bank to which a check is 
sent, or, if the check is payable by a nonbank payor, the bank through 
which the check is payable and to which it is sent for payment or 
collection. For purposes of Subpart C, the term includes the payable-
through bank and the bank whose routing number appears on the check 
regardless of whether the check is payable by a different bank, provided 
that the check is sent for payment or collection to the payable-through 
bank or the bank whose routing number appears on the check.
    2. Under Secs. 229.30 and 229.36(a), a bank designated as a payable-
through bank or payable-at bank and to which the check is sent for 
payment or collection is responsible for the expedited return of checks 
and notice of nonpayment requirements of Subpart C. The payable-through 
or payable-at bank may contract with the payor with respect to its 
liability in discharging these responsibilities. The Board believes that 
the Act makes a clear connection between availability and the time it 
takes for checks to be cleared and returned. Allowing the payable-
through bank additional time to forward checks to the payor and await 
return or pay instructions from the payor would delay the return of 
these checks, increasing the risks to depositary banks. Subpart C places 
on payable-through and payable-at banks the requirements of expeditious 
return based on the time the payable-through or payable-at bank received 
the check for forward collection.
    3. If a check is sent for forward collection based on the routing 
number, the bank associated with the routing number is a paying bank for 
the purposes of Subpart C requirements, including notice of nonpayment, 
even if the check is not drawn by a customer of that bank or the check 
is fraudulent.
    4. The phrase ``and to which [the check] is sent for payment or 
collection'' includes sending not only the physical check, but 
information regarding the check under a truncation arrangement.
    5. Federal Reserve Banks and Federal Home Loan Banks are also paying 
banks under all subparts of the regulation with respect to checks 
payable by them, even though such banks are not defined as banks for 
purposes of Subpart B.

                      AA. 229.2(aa) Proprietary ATM

    1. All deposits at nonproprietary ATMs are treated as deposits of 
nonlocal checks, and deposits at proprietary ATMs generally are treated 
as deposits at banking offices. The Conference Report on the Act 
indicates that the special availability rules for deposits received 
through nonproprietary ATMs are provided because ``nonproprietary ATMs 
today do not distinguish among check deposits or between check and cash 
deposits'' (H.R. Rep. No. 261, 100th Cong., 1st Sess. at 179 (1987)). 
Thus, a deposit of any combination of cash and checks at a 
nonproprietary ATM may be treated as if it were a deposit of nonlocal 
checks, because the depositary bank does not know the makeup of the 
deposit and consequently is unable to place different holds on cash, 
local check, and nonlocal check deposits made at the ATM.
    2. A colloquy between Senators Proxmire and Dodd during the floor 
debate on the Competitive Equality Banking Act (133 Cong. Rec. S11289 
(Aug. 4, 1987)) indicates that whether a bank operates the ATM is the 
primary criterion in determining whether the ATM is proprietary to that 
bank. Because a bank should be capable of ascertaining the composition 
of deposits made to an ATM operated by that bank, an exception to the 
availability schedules is not warranted for these deposits. If more than 
one bank meets the ``owns or operates'' criterion, the ATM is considered 
proprietary to the bank that operates it. For the purpose of this 
definition, the bank that operates an ATM is the bank that puts checks 
deposited into the ATM into the forward collection stream. An ATM owned 
by one or more banks, but operated by a nonbank servicer, is considered 
proprietary to the bank or banks that own it.
    3. The Act also includes location as a factor in determining whether 
an ATM that is either owned or operated by a bank is proprietary to that 
bank. The definition of proprietary ATM includes an ATM located on the 
premises of the bank, either inside the branch or on its outside wall, 
regardless of whether the ATM is owned or operated by that bank. Because 
the Act also defines a proprietary ATM as one that is ``in close 
proximity'' to the bank, the regulation defines an ATM located within 50 
feet of a bank to be proprietary to that bank unless it is identified as 
being owned or operated by another entity. The Board believes that the 
statutory proximity test was designed to apply to situations where it 
would appear to the depositor that the ATM is run by his or her bank, 
because of the proximity of the ATM to the bank. The Board believes that 
an ATM located within 50 feet of a banking office would be presumed 
proprietary to that bank unless it is clearly identified as being owned 
or operated by another entity.

[[Page 495]]

                 BB. 229.2(bb) Qualified Returned Check

    1. Subpart C requires the paying bank and returning bank(s) to 
return checks in an expeditious manner. The banks may meet this 
responsibility by returning a check to the depositary bank by the same 
general means used for forward collection of a check from the depositary 
bank to the paying bank. One way to speed the return process is to 
prepare the returned check for automated processing. Returned checks can 
be automated by either the paying bank or a returning bank by placing 
the returned check in a carrier envelope or by placing a strip on the 
bottom of the returned check and encoding the envelope or strip with the 
routing number of the depositary bank, the amount of the check, and a 
special return identifier. Returned checks are identified by placing a 
``2'' in position 44 of the MICR line. (See American National Standards 
Committee on Financial Services, Specification for the Placement and 
Location of MICR Printing, X9.13 (Sept. 8, 1983) hereinafter referred to 
as ``ANSI X9.13-1983.'')
    2. Generally, under the standard of care imposed by Sec. 229.38, a 
paying or returning bank would be liable for any damages incurred due to 
misencoding of the routing number, the amount of the check, or return 
identifier on a qualified returned check unless the error was due to 
problems with the depositary bank's indorsement. (See also discussion of 
Sec. 229.38(c).) A qualified returned check that contains an encoding 
error would still be a qualified returned check for purposes of the 
regulation.
    3. A qualified returned check need not contain the elements of a 
check drawn on the depositary bank, such as the name of the depositary 
bank. Because indorsements and other information on carrier envelopes or 
strips will not appear on a returned check itself, banks will wish to 
retain carrier envelopes and/or microfilm or other records of carrier 
envelopes or strips with their check records.

                      CC. 229.2(cc) Returning Bank

    1. Returning bank is defined to mean any bank (excluding the paying 
bank and the depositary bank) handling a returned check. A returning 
bank may or may not be a bank that handled the returned check in the 
forward collection process. A returning bank includes a bank that agrees 
to handle a returned check for expeditious return to the depositary bank 
under Sec. 229.31(a). A returning bank is also a collecting bank for the 
purpose of a collecting bank's duty to exercise ordinary care under 
U.C.C. 4-202(b) and is analogous to a collecting bank for purposes of 
final settlement. (See Commentary to Sec. 229.35(b).)

                      DD. 229.2(dd) Routing Number

    1. Each bank is assigned a routing number by Thomson Financial 
Publishing Inc., as agent for the American Bankers Association. The 
routing number takes two forms--a fractional form and a nine-digit form. 
A paying bank is identified by both the fractional form routing number 
(which normally appears in the upper right hand corner of the check) and 
the nine-digit form. The nine-digit routing number of the paying bank 
generally is printed in magnetic ink near the bottom of the check (the 
MICR strip; see ANSI X9.13-1983). Subpart C requires depositary banks 
and subsequent collecting banks to place their routing numbers in nine-
digit form in their indorsements.

                        EE. 229.2(ee) [Reserved]

                        FF. 229.2(ff) [Reserved]

                      GG. 229.2(gg) Teller's Check

    1. Teller's check is defined in the Act to mean a check issued by a 
depository institution and drawn on another depository institution. The 
definition in the regulation includes not only checks drawn by a bank on 
another bank, but also checks payable through or at a bank. This would 
include checks drawn on a nonbank, as long as the check is payable 
through or at a bank. The definition does not include checks that are 
drawn by a nonbank on a nonbank even if payable through or at a bank. 
The definition includes checks provided to a customer of the bank in 
connection with customer deposit account activity, such as account 
disbursements and interest payments. The definition also includes checks 
acquired from a bank by a noncustomer for remittance purposes, such as 
certain loan disbursement checks. The definition excludes checks used by 
the bank to pay employees or vendors and checks issued by the bank in 
connection with a payment service, such as a payroll or a bill-paying 
service. Teller's checks generally are sold by banks to substitute the 
bank's credit for the customer's credit and thereby enhance the 
collectibility of the checks. A check issued in connection with a 
payment service generally is provided as a convenience to the customer 
rather than as a guarantee of the check's collectibility. In addition, 
such checks are often more difficult to distinguish from other types of 
checks than are teller's checks as defined by this regulation.

                     HH. 229.2(hh) Traveler's Check

    1. The Act and regulation require that traveler's checks be treated 
as cashier's, teller's, or certified checks when a new depositor opens 
an account. (See Sec. 229.13(a); 12 U.S.C. 4003(a)(1)(C).) The Act does 
not define traveler's check.

[[Page 496]]

    2. One element of the definition states that a traveler's check is 
``drawn on or payable through or at a bank.'' Traveler's checks that are 
not issued by banks may not have any words on them identifying a bank as 
drawee or paying agent, but may bear unique routing numbers with an 8000 
prefix that identifies a bank as paying agent.
    3. Because a traveler's check is payable by, at, or through a bank, 
it is also a check for purposes of this regulation. When not subject to 
the next-day availability requirement for new accounts, a traveler's 
check should be treated as a local or nonlocal check depending on the 
location of the paying bank. The depositary bank may rely on the 
designation of the paying bank by the routing number to determine 
whether local or nonlocal treatment is required.

                  II. 229.2(ii) Uniform Commercial Code

    1. Uniform Commercial Code is defined as the version of the Code 
adopted by the individual states. For purposes of uniform citation, all 
citations to the U.C.C. in this part refer to the Official Text as 
approved by the American Law Institute and the National Conference of 
Commissioners on Uniform State Laws.

                        JJ. 229.2(jj) [Reserved]

             KK. 229.2(kk) Unit of General Local Government

    1. Unit of general local government is defined to include a city, 
county, parish, town, township, village, or other general purpose 
political subdivision of a state. The term does not include special 
purpose units, such as school districts, water districts, or Indian 
nations.

                       LL. 229.2(ll) Wire Transfer

    1. The Act delegates to the Board the authority to define the term 
wire transfer. The regulation defines wire transfer as an unconditional 
order to a bank to pay a fixed or determinable amount of money to a 
beneficiary, upon receipt or on a day stated in the order, that is 
transmitted by electronic or other means over certain networks or on the 
books of banks and that is used primarily to transfer funds between 
commercial accounts. ``Unconditional'' means that no condition, such as 
presentation of documents, must be met before the bank receiving the 
order is to make payment. A wire transfer may be transmitted by 
electronic or other means. ``Electronic means'' include computer-to-
computer links, on-line terminals, telegrams (including TWX, TELEX, or 
similar methods of communication), telephone calls, or other similar 
methods. Fedwire (the Federal Reserve's wire transfer network), CHIPS 
(Clearing House Interbank Payments System, operated by the New York 
Clearing House), and book transfers among banks or within one bank are 
covered by this definition. Credits for credit and debit card 
transactions are not wire transfers. The term wire transfer excludes 
electronic fund transfers as that term is defined by the Electronic Fund 
Transfer Act.

                        MM. 229.2(mm) [Reserved]

                        NN. 229.2(nn) Good Faith

    1. This definition of good faith derives from U.C.C. 3-103(a)(4).

                   OO. 229.2(oo) Interest Compensation

    1. This calculation of interest compensation derives from U.C.C. 4A-
506(b). (See Secs. 229.34(d) and 229.36(f).)

        III. Section 229.3 Administrative Enforcement [Reserved]

                IV. Section 229.10 Next-Day Availability

                    A. Business Days and Banking Days

    1. This section, as well as other provisions of this subpart 
governing the availability of funds, provides that funds must be made 
available for withdrawal not later than a specified number of business 
days following the banking day on which the funds are deposited. Thus, a 
deposit is considered made only on a banking day, i.e., a day that the 
bank is open to the public for carrying on substantially all of its 
banking functions. For example, if a deposit is made at an ATM on a 
Saturday, Sunday, or other day on which the bank is closed to the 
public, the deposit is considered received on that bank's next banking 
day.
    2. Nevertheless, business days are used to determine the number of 
days following the banking day of deposit that funds must be available 
for withdrawal. For example, if a deposit of a local check were made on 
a Monday, the availability schedule requires that funds be available for 
withdrawal on the second business day after deposit. Therefore, funds 
must be made available on Wednesday regardless of whether the bank was 
closed on Tuesday for other than a standard legal holiday as specified 
in the definition of business day.

                       B. 229.10(a) Cash Deposits

    1. This paragraph implements the Act's requirement for next-day 
availability for cash deposits to accounts at a depositary bank 
``staffed by individuals employed by such institution.'' 2 Under 
this paragraph, cash deposited in an account at a staffed teller station 
on a Monday must become available for

[[Page 497]]

withdrawal by the start of business on Tuesday. It must become available 
for withdrawal by the start of business on Wednesday if it is deposited 
by mail, at a proprietary ATM, or by other means other than at a staffed 
teller station.
---------------------------------------------------------------------------

    \2\ Nothing in the Act or this regulation affects terms of account 
arrangements, such as negotiable order of withdrawal accounts, which may 
require prior notice of withdrawal. (See 12 CFR 204.2(e)(2).)
---------------------------------------------------------------------------

                    C. 229.10(b) Electronic Payments

    1. The Act provides next-day availability for funds received for 
deposit by wire transfer. The regulation uses the term electronic 
payment, rather than wire transfer, to include both wire transfers and 
ACH credit transfers under the next-day availability requirement. (See 
discussion of definitions of automated clearinghouse, electronic 
payment, and wire transfer in Sec. 229.2.)
    2. The Act requires that funds received by wire transfer be 
available for withdrawal not later than the business day following the 
day a wire transfer is received. This paragraph clarifies what 
constitutes receipt of an electronic payment. For the purposes of this 
paragraph, a bank receives an electronic payment when the bank receives 
both payment in finally collected funds and the payment instructions 
indicating the customer accounts to be credited and the amount to be 
credited to each account. For example, in the case of Fedwire, the bank 
receives finally collected funds at the time the payment is made. (See 
12 CFR 210.31.) Finally collected funds generally are received for an 
ACH credit transfer when they are posted to the receiving bank's account 
on the settlement day. In certain cases, the bank receiving ACH credit 
payments will not receive the specific payment instructions indicating 
which accounts to credit until after settlement day. In these cases, the 
payments are not considered received until the information on the 
account and amount to be credited is received.
    3. This paragraph also establishes the extent to which an electronic 
payment is considered made. Thus, if a participant on a private network 
fails to settle and the receiving bank receives finally settled funds 
representing only a partial amount of the payment, it must make only the 
amount that it actually received available for withdrawal.
    4. The availability requirements of this regulation do not preempt 
or invalidate other rules, regulations, or agreements which require 
funds to be made available on a more prompt basis. For example, the 
next-day availability requirement for ACH credits in this section does 
not preempt ACH association rules and Treasury regulations (31 CFR part 
210), which provide that the proceeds of these credit payments be 
available to the recipient for withdrawal on the day the bank receives 
the funds.

                   D. 229.10(c) Certain Check Deposits

    1. The Act generally requires that funds be made available on the 
business day following the banking day of deposit for Treasury checks, 
state and local government checks, cashier's checks, certified checks, 
teller's checks, and ``on us'' checks, under specified conditions. 
(Treasury checks are checks drawn on the Treasury of the United States 
and have a routing number beginning with the digits ``0000.'') This 
section also requires next-day availability for additional types of 
checks not addressed in the Act. Checks drawn on a Federal Reserve Bank 
or a Federal Home Loan Bank and U.S. Postal Service money orders also 
must be made available on the first business day following the day of 
deposit under specified conditions. For the purposes of this section, 
all checks drawn on a Federal Reserve Bank or a Federal Home Loan Bank 
that contain in the MICR line a routing number that is listed in 
Appendix A are subject to the next-day availability requirement if they 
are deposited in an account held by a payee of the check and in person 
to an employee of the depositary bank, regardless of the purposes for 
which the checks were issued. For all new accounts, even if the new 
account exception is not invoked, traveler's checks must be included in 
the $5,000 aggregation of checks deposited on any one banking day that 
are subject to the next-day availability requirement. (See 
Sec. 229.13(a).)
    2. Deposit in Account of Payee. One statutory condition to receipt 
of next-day availability of Treasury checks, state and local government 
checks, cashier's checks, certified checks, and teller's checks is that 
the check must be ``endorsed only by the person to whom it was issued.'' 
The Act could be interpreted to include a check that has been indorsed 
in blank and deposited into an account of a third party that is not 
named as payee. The Board believes that such a check presents greater 
risks than a check deposited by the payee and that Congress did not 
intend to require next-day availability for such checks. The regulation, 
therefore, provides that funds must be available on the business day 
following deposit only if the check is deposited in an account held by a 
payee of the check. For the purposes of this section, payee does not 
include transferees other than named payees. The regulation also applies 
this condition to Postal Service money orders and checks drawn on 
Federal Reserve Banks and Federal Home Loan Banks.
    3. Deposits Made to an Employee of the Depositary Bank.
    a. In most cases, next-day availability of the proceeds of checks 
subject to this section is conditioned on the deposit of these checks in 
person to an employee of the depositary

[[Page 498]]

bank. If the deposit is not made to an employee of the depositary bank 
on the premises of such bank, the proceeds of the deposit must be made 
available for withdrawal by the start of business on the second business 
day after deposit, under paragraph (c)(2) of this section. For example, 
second-day availability rather than next-day availability would be 
allowed for deposits of checks subject to this section made at a 
proprietary ATM, night depository, through the mail or a lock box, or at 
a teller station staffed by a person who is not an employee of the 
depositary bank. Second-day availability also may be allowed for 
deposits picked up by an employee of the depositary bank at the 
customer's premises; such deposits would be considered made upon receipt 
at the branch or other location of the depositary bank.
    b. In the case of Treasury checks, the Act and regulation do not 
condition the receipt of next-day availability to deposits at staffed 
teller stations. Therefore, Treasury checks deposited at a proprietary 
ATM must be accorded next-day availability, if the check is deposited to 
an account of a payee of the check.
    4. ``On Us'' Checks. The Act and regulation require next-day 
availability for ``on us'' checks, i.e., checks deposited in a branch of 
the depositary bank and drawn on the same or another branch of the same 
bank, if both branches are located in the same state or check processing 
region. Thus, checks deposited in one branch of a bank and drawn on 
another branch of the same bank must receive next-day availability even 
if the branch on which the checks are drawn is located in another check 
processing region but in the same state as the branch in which the check 
is deposited. For the purposes of this requirement, deposits at 
facilities that are not located on the premises of a brick-and-mortar 
branch of the bank, such as off-premise ATMs and remote depositories, 
are not considered deposits made at branches of the depositary bank.
    5. First $100.
    a. The Act and regulation also require that up to $100 of the 
aggregate deposit by check or checks not subject to next-day 
availability on any one banking day be made available on the next 
business day. For example, if $70 were deposited in an account by 
check(s) on a Monday, the entire $70 must be available for withdrawal at 
the start of business on Tuesday. If $200 were deposited by check(s) on 
a Monday, this section requires that $100 of the funds be available for 
withdrawal at the start of business on Tuesday. The portion of the 
customer's deposit to which the $100 must be applied is at the 
discretion of the depositary bank, as long as it is not applied to any 
checks subject to next-day availability. The $100 next-day availability 
rule does not apply to deposits at nonproprietary ATMs.
    b. The $100 that must be made available under this rule is in 
addition to the amount that must be made available for withdrawal on the 
business day after deposit under other provisions of this section. For 
example, if a customer deposits a $1,000 Treasury check, and a $1,000 
local check in its account on Monday, $1,100 must be made available for 
withdrawal on Tuesday--the proceeds of the $1,000 Treasury check, as 
well as the first $100 of the local check.
    c. A depositary bank may aggregate all local and nonlocal check 
deposits made by the customer on a given banking day for the purposes of 
the $100 next-day availability rule. Thus, if a customer has two 
accounts at the depositary bank, and on a particular banking day makes 
deposits to each account, $100 of the total deposited to the two 
accounts must be made available on the business day after deposit. Banks 
may aggregate deposits to individual and joint accounts for the purposes 
of this provision.
    d. If the customer deposits a $500 local check, and gets $100 cash 
back at the time of deposit, the bank need not make an additional $100 
available for withdrawal on the following day. Similarly, if the 
customer depositing the local check has a negative book balance, or 
negative available balance in its account at the time of deposit, the 
$100 that must be available on the next business day may be made 
available by applying the $100 to the negative balance, rather than 
making the $100 available for withdrawal by cash or check on the 
following day.
    6. Special Deposit Slips.
    a. Under the Act, a depositary bank may require the use of a special 
deposit slip as a condition to providing next-day availability for 
certain types of checks. This condition was included in the Act because 
many banks determine the availability of their customers' check deposits 
in an automated manner by reading the MICR-encoded routing number on the 
deposited checks. Using these procedures, a bank can determine whether a 
check is a local or nonlocal check, a check drawn on the Treasury, a 
Federal Reserve Bank, a Federal Home Loan Bank, or a branch of the 
depositary bank, or a U.S. Postal Service money order. Appendix A 
includes the routing numbers of certain categories of checks that are 
subject to next-day availability. The bank cannot require a special 
deposit slip for these checks.
    b. A bank cannot distinguish whether the check is a state or local 
government check, cashier's check, certified check, or teller's check by 
reading the MICR-encoded routing number, because these checks bear the 
same routing number as other checks drawn on the same bank that are not 
accorded next-day availability. Therefore, a bank may require a special 
deposit slip for these checks.
    c. The regulation specifies that if a bank decides to require the 
use of a special deposit

[[Page 499]]

slip (or a special deposit envelope in the case of a deposit at an ATM 
or other unstaffed facility) as a condition to granting next-day 
availability under paragraphs (c)(1)(iv) or (c)(1)(v) of this section or 
second-day availability under paragraph (c)(2) of this section, and if 
the deposit slip that must be used is different from the bank's regular 
deposit slips, the bank must either provide the special slips to its 
customers or inform its customers how such slips may be obtained and 
make the slips reasonably available to the customers.
    d. A bank may meet this requirement by providing customers with an 
order form for the special deposit slips and allowing sufficient time 
for the customer to order and receive the slips before this condition is 
imposed. If a bank provides deposit slips in its branches for use by its 
customers, it also must provide the special deposit slips in the 
branches. If special deposit envelopes are required for deposits at an 
ATM, the bank must provide such envelopes at the ATM.
    e. Generally, a teller is not required to advise depositors of the 
availability of special deposit slips merely because checks requiring 
special deposit slips for next-day availability are deposited without 
such slips. If a bank provides the special deposit slips only upon the 
request of a depositor, however, the teller must advise the depositor of 
the availability of the special deposit slips, or the bank must post a 
notice advising customers that the slips are available upon request. If 
a bank prepares a deposit for a depositor, it must use a special deposit 
slip where appropriate. A bank may require the customer to segregate the 
checks subject to next-day availability for which special deposit slips 
could be required, and to indicate on a regular deposit slip that such 
checks are being deposited, if the bank so instructs its customers in 
its initial disclosure.

                      V. Section 229.11  [Reserved]

                VI. Section 229.12  Availability Schedule

                      A. 229.12(a)  Effective Date

    1. The availability schedule set forth in this section supersedes 
the temporary schedule that was effective September 1, 1988, through 
August 31, 1990.

           B. 229.12(b)  Local Checks and Certain Other Checks

    1. Local checks must be made available for withdrawal not later than 
the second business day following the banking day on which the checks 
were deposited.
    2. In addition, the proceeds of Treasury checks and U.S. Postal 
Service money orders not subject to next-day (or second-day) 
availability under Sec. 229.10(c), checks drawn on Federal Reserve Banks 
and Federal Home Loan Banks, checks drawn by a state or unit of general 
local government, cashier's checks, certified checks, and teller's 
checks not subject to next-day (or second-day) availability under 
Sec. 229.10(c) and payable in the same check processing region as the 
depositary bank, must be made available for withdrawal by the second 
business day following deposit.
    3. Exceptions are made for withdrawals by cash or similar means and 
for deposits in banks located outside the 48 contiguous states. Thus, 
the proceeds of a local check deposited on a Monday generally must be 
made available for withdrawal on Wednesday.

                      C. 229.12(c)  Nonlocal Checks

    1. Nonlocal checks must be made available for withdrawal not later 
than the fifth business day following deposit, i.e., proceeds of a 
nonlocal check deposited on a Monday must be made available for 
withdrawal on the following Monday. In addition, a check described in 
Sec. 229.10(c) that does not meet the conditions for next-day 
availability (or second-day availability) is treated as a nonlocal 
check, if the check is drawn on or payable through or at a nonlocal 
paying bank. Adjustments are made to the schedule for withdrawals by 
cash or similar means and deposits in banks located outside the 48 
contiguous states.
    2. Reduction in Schedules.
    a. Section 603(d)(1) of the Act (12 U.S.C. 4002(d)(1)) requires the 
Board to reduce the statutory schedules for any category of checks where 
most of those checks would be returned in a shorter period of time than 
provided in the schedules. The conferees indicated that ``if the new 
system makes it possible for two-thirds of the items of a category of 
checks to meet this test in a shorter period of time, then the Federal 
Reserve must shorten the schedules accordingly.'' H.R. Rep. No. 261, 
100th Cong., 1st Sess. at 179 (1987).
    b. Reduced schedules are provided for certain nonlocal checks where 
significant improvements can be made to the Act's schedules due to 
transportation arrangements or proximity between the check processing 
regions of the depositary bank and the paying bank, allowing for faster 
collection and return. Appendix B sets forth the specific reduction of 
schedules applicable to banks located in certain check processing 
regions.
    c. A reduction in schedules may apply even in those cases where the 
determination that the check is nonlocal cannot be made based on the 
routing number on the check. For example, a nonlocal credit union 
payable-through share draft may be subject to a reduction in schedules 
if the routing number of the payable-through bank that appears on the 
draft is included in Appendix B, even though the determination that the 
payable-through share draft is nonlocal is based on

[[Page 500]]

the location of the credit union and not the routing number on the 
draft.

 D. 229.12(d)  Time Period Adjustment for Withdrawal by Cash or Similar 
                                  Means

    1. The Act provides an adjustment to the availability rules for cash 
withdrawals. Funds from local and nonlocal checks need not be available 
for cash withdrawal until 5:00 p.m. on the day specified in the 
schedule. At 5:00 p.m., $400 of the deposit must be made available for 
cash withdrawal. This $400 is in addition to the first $100 of a day's 
deposit, which must be made available for withdrawal at the start of 
business on the first business day following the banking day of deposit. 
If the proceeds of local and nonlocal checks become available for 
withdrawal on the same business day, the $400 withdrawal limitation 
applies to the aggregate amount of the funds that became available for 
withdrawal on that day. The remainder of the funds must be available for 
cash withdrawal at the start of business on the business day following 
the business day specified in the schedule.
    2. The Act recognizes that the $400 that must be provided on the day 
specified in the schedule may exceed a bank's daily ATM cash withdrawal 
limit, and explicitly provides that the Act does not supersede the 
bank's policy in this regard. The Board believes that the rationale for 
accommodating a bank's ATM withdrawal limit also applies to other cash 
withdrawal limits established by that bank. Section 229.19(c)(4) of the 
regulation addresses the relation between a bank's cash withdrawal limit 
(for over-the-counter cash withdrawals as well as ATM cash withdrawals) 
and the requirements of this subpart.
    3. The Board believes that the Congress included this special cash 
withdrawal rule to provide a depositary bank with additional time to 
learn of the nonpayment of a check before it must make funds available 
to its customer. If a customer deposits a local check on a Monday, and 
that check is returned by the paying bank, the depositary bank may not 
receive the returned check until Thursday, the day after funds for a 
local check ordinarily must be made available for withdrawal. The intent 
of the special cash withdrawal rule is to minimize this risk to the 
depositary bank. For this rule to minimize the depositary bank's risk, 
it must apply not only to cash withdrawals, but also to withdrawals by 
other means that result in an irrevocable debit to the customer's 
account or commitment to pay by the bank on the customer's behalf during 
the day. Thus, the cash withdrawal rule also includes withdrawals by 
electronic payment, issuance of a cashier's or teller's check, 
certification of a check, or other irrevocable commitment to pay, such 
as authorization of an on-line point-of-sale debit. The rule also would 
apply to checks presented over the counter for payment on the day of 
presentment by the depositor or another person. Such checks could not be 
dishonored for insufficient funds if an amount sufficient to cover the 
check had became available for cash withdrawal under this rule; however, 
payment of such checks would be subject to the bank's cut-off hour 
established under U.C.C. 4-108. The cash withdrawal rule does not apply 
to checks and other provisional debits presented to the bank for payment 
that the bank has the right to return.

  E. 229.12(e)  Extension of Schedule for Certain Deposits in Alaska, 
            Hawaii, Puerto Rico, and the U.S. Virgin Islands

    1. The Act and regulation provide an extension of the availability 
schedules for check deposits at a branch of a bank if the branch is 
located in Alaska, Hawaii, Puerto Rico, or the U.S. Virgin Islands. The 
schedules for local checks, nonlocal checks (including nonlocal checks 
subject to the reduced schedules of Appendix B), and deposits at 
nonproprietary ATMs are extended by one business day for checks 
deposited to accounts in banks located in these jurisdictions that are 
drawn on or payable at or through a paying bank not located in the same 
jurisdiction as the depositary bank. For example, a check deposited in a 
bank in Hawaii and drawn on a San Francisco paying bank must be made 
available for withdrawal not later than the third business day following 
deposit. This extension does not apply to deposits that must be made 
available for withdrawal on the next business day.
    2. The Congress did not provide this extension of the schedules to 
checks drawn on a paying bank located in Alaska, Hawaii, Puerto Rico, or 
the U.S. Virgin Islands and deposited in an account at a depositary bank 
in the 48 contiguous states. Therefore, a check deposited in a San 
Francisco bank drawn on a Hawaii paying bank must be made available for 
withdrawal not later than the second rather than the third business day 
following deposit.

              F. 229.12(f)  Deposits at Nonproprietary ATMs

    1. The Act and regulation provide a special rule for deposits made 
at nonproprietary ATMs. This paragraph does not apply to deposits made 
at proprietary ATMs. All deposits at a nonproprietary ATM must be made 
available for withdrawal by the fifth business day following the banking 
day of deposit. For example, a deposit made at a nonproprietary ATM on a 
Monday, including any deposit by cash or checks that would otherwise be 
subject to next-day (or second-day) availability, must be made available 
for

[[Page 501]]

withdrawal not later than Monday of the following week. The provisions 
of Sec. 229.10(c)(1)(vii) requiring a depositary bank to make up to $100 
of an aggregate daily deposit available for withdrawal on the first 
business day after the banking day of deposit do not apply to deposits 
at a nonproprietary ATM.

                     VII. Section 229.13  Exceptions

                             A. Introduction

    1. While certain safeguard exceptions (such as those for new 
accounts and checks the bank has reasonable cause to believe are 
uncollectible) are established in the Act, the Congress gave the Board 
the discretion to determine whether certain other exceptions should be 
included in its regulations. Specifically, the Act gives the Board the 
authority to establish exceptions to the schedules for large or 
redeposited checks and for accounts that have been repeatedly overdrawn. 
These exceptions apply to local and nonlocal checks as well as to checks 
that must otherwise be accorded next-day (or second-day) availability 
under Sec. 229.10(c).
    2. Many checks will not be returned to the depositary bank by the 
time funds must be made available for withdrawal under the next-day (or 
second-day), local, and nonlocal schedules. In order to reduce risk to 
depositary banks, the Board has exercised its statutory authority to 
adopt these exceptions to the schedules in the regulation to allow the 
depositary bank to extend the time within which it is required to make 
funds available.
    3. The Act also gives the Board the authority to suspend the 
schedules for any classification of checks, if the schedules result in 
an unacceptable level of fraud losses. The Board will adopt regulations 
or issue orders to implement this statutory authority if and when 
circumstances requiring its implementation arise.

                       B. 229.13(a)  New Accounts

    1. Definition of New Account.
    a. The Act provides an exception to the availability schedule for 
new accounts. An account is defined as a new account during the first 30 
calendar days after the account is opened. An account is opened when the 
first deposit is made to the account. An account is not considered a new 
account, however, if each customer on the account has a transaction 
account relationship with the depositary bank, including a dormant 
account, that is at least 30 calendar days old or if each customer has 
had an established transaction account with the depositary bank within 
the 30 calendar days prior to opening the second account.
    b. The following are examples of what constitutes, and does not 
constitute, a new account:
    i. If the customer has an established account with a bank and opens 
a second account with the bank, the second account is not subject to the 
new account exception.
    ii. If a customer's account were closed and another account opened 
as a successor to the original account (due, for example, to the theft 
of checks or a debit card used to access the original account), the 
successor account is not subject to the new account exception, assuming 
the previous account relationship is at least 30 days old. Similarly, if 
a customer closes an established account and opens a separate account 
within 30 days, the new account is not subject to the new account 
exception.
    iii. If a customer has a savings deposit or other deposit that is 
not an account (as that term is defined in Sec. 229.2(a)) at the bank, 
and opens an account, the account is subject to the new account 
exception.
    iv. If a person that is authorized to sign on a corporate account 
(but has no other relationship with the bank) opens a personal account, 
the personal account is subject to the new account exception.
    v. If a customer has an established joint account at a bank, and 
subsequently opens an individual account with that bank, the individual 
account is not subject to the new account exception.
    vi. If two customers that each have an established individual 
account with the bank open a joint account, the joint account is not 
subject to the new account exception. If one of the customers on the 
account has no current or recent established account relationship with 
the bank, however, the joint account is subject to the new account 
exception, even if the other individual on the account has an 
established account relationship with the bank.
    2. Rules Applicable to New Accounts.
    a. During the new account exception period, the schedules for local 
and nonlocal checks do not apply, and, unlike the other exceptions 
provided in this section, the regulation provides no maximum time frames 
within which the proceeds of these deposits must be made available for 
withdrawal. Maximum times within which funds must be available for 
withdrawal during the new account period are provided, however, for 
certain other deposits. Deposits received by cash and electronic 
payments must be made available for withdrawal in accordance with 
Sec. 229.10.
    b. Special rules also apply to deposits of Treasury checks, U.S. 
Postal Service money orders, checks drawn on Federal Reserve Banks and 
Federal Home Loan Banks, state and local government checks, cashier's 
checks, certified checks, teller's checks, and, for the purposes of the 
new account exception only, traveler's checks. The first $5,000 of funds 
deposited to a new account on any one banking day by these check 
deposits

[[Page 502]]

must be made available for withdrawal in accordance with Sec. 229.10(c). 
Thus, the first $5,000 of the proceeds of these check deposits must be 
made available on the first business day following deposit, if the 
deposit is made in person to an employee of the depositary bank and the 
other conditions of next-day availability are met. Funds must be made 
available on the second business day after deposit for deposits that are 
not made over the counter, in accordance with Sec. 229.10(c)(2). 
(Proceeds of Treasury check deposits must be made available on the first 
business day after deposit, even if the check is not deposited in person 
to an employee of the depositary bank.) Funds in excess of the first 
$5,000 deposited by these types of checks on a banking day must be 
available for withdrawal not later than the ninth business day following 
the banking day of deposit. The requirements of Sec. 229.10(c)(1)(vi) 
and (vii) that ``on us'' checks and the first $100 of a day's deposit be 
made available for withdrawal on the next business day do not apply 
during the new account period.
    3. Representation by Customer. The depositary bank may rely on the 
representation of the customer that the customer has no established 
account relationship with the bank, and has not had any such account 
relationship within the past 30 days, to determine whether an account is 
subject to the new account exception.

                      C. 229.13(b)  Large Deposits

    1. Under the large deposit exception, a depositary bank may extend 
the hold placed on check deposits to the extent that the amount of the 
aggregate deposit on any banking day exceeds $5,000. This exception 
applies to local and nonlocal checks, as well as to checks that 
otherwise would be made available on the next (or second) business day 
after the day of deposit under Sec. 229.10(c). Although the first $5,000 
of a day's deposit is subject to the availability otherwise provided for 
checks, the amount in excess of $5,000 may be held for an additional 
period of time as provided in Sec. 229.13(h). When the large deposit 
exception is applied to deposits composed of a mix of checks that would 
otherwise be subject to differing availability schedules, the depositary 
bank has the discretion to choose the portion of the deposit to which it 
applies the exception. Deposits by cash or electronic payment are not 
subject to this exception for large deposits.
    2. The following example illustrates the operation of the large 
deposit exception. If a customer deposits $2,000 in cash and a $9,000 
local check on a Monday, $2,100 (the proceeds of the cash deposit and 
$100 from the local check deposit) must be made available for withdrawal 
on Tuesday. An additional $4,900 of the proceeds of the local check must 
be available for withdrawal on Wednesday in accordance with the local 
schedule, and the remaining $4,000 may be held for an additional period 
of time under the large deposit exception.
    3. Where a customer has multiple accounts with a depositary bank, 
the bank may apply the large deposit exception to the aggregate deposits 
to all of the customer's accounts, even if the customer is not the sole 
holder of the accounts and not all of the holders of the customer's 
accounts are the same. Thus, a depositary bank may aggregate the 
deposits made to two individual accounts in the same name, to an 
individual and a joint account with one common name, or to two joint 
accounts with at least one common name for the purpose of applying the 
large deposit exception. Aggregation of deposits to multiple accounts is 
permitted because the Board believes that the risk to the depositary 
bank associated with large deposits is similar regardless of how the 
deposits are allocated among the customer's accounts.

                    D. 229.13(c)  Redeposited Checks

    1. The Act gives the Board the authority to promulgate an exception 
to the schedule for checks that have been returned unpaid and 
redeposited. Section 229.13(c) provides such an exception for checks 
that have been returned unpaid and redeposited by the customer or the 
depositary bank. This exception applies to local and nonlocal checks, as 
well as to checks that would otherwise be made available on the next (or 
second) business day after the day of deposit under Sec. 229.10(c).
    2. This exception addresses the increased risk to the depositary 
bank that checks that have been returned once will be uncollectible when 
they are presented to the paying bank a second time. The Board, however, 
does not believe that this increased risk is present for checks that 
have been returned due to a missing indorsement. Thus, the exception 
does not apply to checks returned unpaid due to missing indorsements and 
redeposited after the missing indorsement has been obtained, if the 
reason for return indicated on the check (see Sec. 229.30(d)) states 
that it was returned due to a missing indorsement. For the same reason, 
this exception does not apply to a check returned because it was 
postdated (future dated), if the reason for return indicated on the 
check states that it was returned because it was postdated, and if it is 
no longer postdated when redeposited.
    3. To determine when funds must be made available for withdrawal, 
the banking day on which the check is redeposited is considered to be 
the day of deposit. A depositary bank that made $100 of a check 
available for withdrawal under Sec. 229.10(c)(1)(vii) can charge back 
the full amount of the check, including the $100, if the check is 
returned unpaid, and the $100 need not be made available again if the 
check is redeposited.

[[Page 503]]

                    E. 229.13(d)  Repeated Overdrafts

    1. The Act gives the Board the authority to establish an exception 
for ``deposit accounts which have been overdrawn repeatedly.'' This 
paragraph provides two tests to determine what constitutes repeated 
overdrafts. Under the first test, a customer's accounts are considered 
repeatedly overdrawn if, on six banking days within the preceding six 
months, the available balance in any account held by the customer is 
negative, or the balance would have become negative if checks or other 
charges to the account had been paid, rather than returned. This test 
can be met based on separate occurrences (e.g., checks that are returned 
for insufficient funds on six different days), or based on one 
occurrence (e.g., a negative balance that remains on the customer's 
account for six banking days). If the bank dishonors a check that 
otherwise would have created a negative balance, however, the incident 
is considered an overdraft only on that day.
    2. The second test addresses substantial overdrafts. Such overdrafts 
increase the risk to the depositary bank of dealing with the repeated 
overdrafter. Under this test, a customer incurs repeated overdrafts if, 
on two banking days within the preceding six months, the available 
balance in any account held by the customer is negative in an amount of 
$5,000 or more, or would have become negative in an amount of $5,000 or 
more if checks or other charges to the account had been paid.
    3. The exception relates not only to overdrafts caused by checks 
drawn on the account, but also overdrafts caused by other debit charges 
(e.g. ACH debits, point-of-sale transactions, returned checks, account 
fees, etc.). If the potential debit is in excess of available funds, the 
exception applies regardless of whether the items were paid or returned 
unpaid. An overdraft resulting from an error on the part of the 
depositary bank, or from the imposition of overdraft charges for which 
the customer is entitled to a refund under Secs. 229.13(e) or 229.16(c), 
cannot be considered in determining whether the customer is a repeated 
overdrafter. The exception excludes accounts with overdraft lines of 
credit, unless the credit line has been exceeded or would have been 
exceeded if the checks or other charges to the account had been paid.
    4. This exception applies to local and nonlocal checks, as well as 
to checks that otherwise would be made available on the next (or second) 
business day after the day of deposit under Sec. 229.10(c). When a bank 
places or extends a hold under this exception, it need not make the 
first $100 of a deposit available for withdrawal on the next business 
day, as otherwise would be required by Sec. 229.10(c)(1)(vii).

         F. 229.13(e)  Reasonable Cause To Doubt Collectibility

    1. In the case of certain check deposits, if the bank has reasonable 
cause to believe the check is uncollectible, it may extend the time 
funds must be made available for withdrawal. This exception applies to 
local and nonlocal checks, as well as to checks that would otherwise be 
made available on the next (or second) business day after the day of 
deposit under Sec. 229.10(c). When a bank places or extends a hold under 
this exception, it need not make the first $100 of a deposit available 
for withdrawal on the next business day, as otherwise would be required 
by Sec. 229.10(c)(1)(vii). If the reasonable cause exception is invoked, 
the bank must include in the notice to its customer, required by 
Sec. 229.13(g), the reason that the bank believes that the check is 
uncollectible.
    2. The following are several examples of circumstances under which 
the reasonable cause exception may be invoked:
    a. If a bank received a notice from the paying bank that a check was 
not paid and is being returned to the depositary bank, the depositary 
bank could place a hold on the check or extend a hold previously placed 
on that check, and notify the customer that the bank had received notice 
that the check is being returned. The exception could be invoked even if 
the notice were incomplete, if the bank had reasonable cause to believe 
that the notice applied to that particular check.
    b. The depositary bank may have received information from the paying 
bank, prior to the presentment of the check, that gives the bank 
reasonable cause to believe that the check is uncollectible. For 
example, the paying bank may have indicated that payment has been 
stopped on the check, or that the drawer's account does not currently 
have sufficient funds to honor the check. Such information may provide 
sufficient basis to invoke this exception. In these cases, the 
depositary bank could invoke the exception and disclose as the reason 
the exception is being invoked the fact that information from the paying 
bank indicates that the check may not be paid.
    c. The fact that a check is deposited more than six months after the 
date on the check (i.e. a stale check) is a reasonable indication that 
the check may be uncollectible, because under U.C.C. 4-404 a bank has no 
duty to its customer to pay a check that is more than six months old. 
Similarly, if a check being deposited is postdated (future dated), the 
bank may have a reasonable cause to believe the check is uncollectible, 
because the check may not be properly payable under U.C.C. 4-401. The 
bank, in its notice, should specify that the check is stale-dated or 
postdated.
    d. There are reasons that may cause a bank to believe that a check 
is uncollectible that

[[Page 504]]

are based on confidential information. For example, a bank could 
conclude that a check being deposited is uncollectible based on its 
reasonable belief that the depositor is engaging in kiting activity. 
Reasonable belief as to the insolvency or pending insolvency of the 
drawer of the check or the drawee bank and that the checks will not be 
paid also may justify invoking this exception. In these cases, the bank 
may indicate, as the reason it is invoking the exception, that the bank 
has confidential information that indicates that the check might not be 
paid.
    3. The Board has included a reasonable cause exception notice as a 
model notice in Appendix C (C-13). The model notice includes several 
reasons for which this exception may be invoked. The Board does not 
intend to provide a comprehensive list of reasons for which this 
exception may be invoked; another reason that does not appear on the 
model notice may be used as the basis for extending a hold, if the 
reason satisfies the conditions for invoking this exception. A 
depositary bank may invoke the reasonable cause exception based on a 
combination of factors that give rise to a reasonable cause to doubt the 
collectibility of a check. In these cases, the bank should disclose the 
primary reasons for which the exception was invoked in accordance with 
paragraph (g) of this section.
    4. The regulation provides that the determination that a check is 
uncollectible shall not be based on a class of checks or persons. For 
example, a depositary bank cannot invoke this exception simply because 
the check is drawn on a paying bank in a rural area and the depositary 
bank knows it will not have the opportunity to learn of nonpayment of 
that check before funds must be made available under the availability 
schedules. Similarly, a depositary bank cannot invoke the reasonable 
cause exception based on the race or national origin of the depositor.
    5. If a depositary bank invokes this exception with respect to a 
particular check and does not provide a written notice to the depositor 
at the time of deposit, the depositary bank may not assess any overdraft 
fee (such as an ``NSF'' charge) or charge interest for use of overdraft 
credit, if the check is paid by the paying bank and these charges would 
not have occurred had the exception not been invoked. A bank may assess 
an overdraft fee under these circumstances, however, if it provides 
notice to the customer, in the notice of exception required by paragraph 
(g) of this section, that the fee may be subject to refund, and refunds 
the charges upon the request of the customer. The notice must state that 
the customer may be entitled to a refund of any overdraft fees that are 
assessed if the check being held is paid, and indicate where such 
requests for a refund of overdraft fees should be directed.

                   G. 229.13(f)  Emergency Conditions

    1. Certain emergency conditions may arise that delay the collection 
or return of checks, or delay the processing and updating of customer 
accounts. In the circumstances specified in this paragraph, the 
depositary bank may extend the holds that are placed on deposits of 
checks that are affected by such delays, if the bank exercises such 
diligence as the circumstances require. For example, if a bank learns 
that a check has been delayed in the process of collection due to severe 
weather conditions or other causes beyond its control, an emergency 
condition covered by this section may exist and the bank may place a 
hold on the check to reflect the delay. This exception applies to local 
and nonlocal checks, as well as checks that would otherwise be made 
available on the next (or second) business day after the day of deposit 
under Sec. 229.10(c). When a bank places or extends a hold under this 
exception, it need not make the first $100 of a deposit available for 
withdrawal on the next business day, as otherwise would be required by 
Sec. 229.10(c)(1)(vii). In cases where the emergency conditions 
exception does not apply, as in the case of deposits of cash or 
electronic payments under Sec. 229.10 (a) and (b), the depositary bank 
may not be liable for a delay in making funds available for withdrawal 
if the delay is due to a bona fide error such as an unavoidable computer 
malfunction.

                    H. 229.13(g)  Notice of Exception

    1. In general.
    a. If a depositary bank invokes any of the safeguard exceptions to 
the schedules listed above, other than the new account exception, and 
extends the hold on a deposit beyond the time periods permitted in 
Secs. 229.10(c) and 229.12, it must provide a notice to its customer. 
Except in the cases described in paragraphs (g)(2) and (g)(3) of this 
section, notices must be given each time an exception hold is invoked 
and must state the customer's account number, the date of deposit, the 
reason the exception was invoked, and the time period within which funds 
will be available for withdrawal.
    b. With respect to paragraph (g)(1), the requirement that the notice 
state the time period within which the funds shall be made available may 
be satisfied if the notice identifies the date the deposit is received 
and information sufficient to indicate when funds will be available and 
the amounts that will be available at those times. For example, for a 
deposit involving more than one check, the bank need not provide a 
notice that discloses when funds from each individual check in the 
deposit will be available for withdrawal; instead, the bank may provide 
a total dollar amount for each of the time periods when

[[Page 505]]

funds will be available, or provide the customer with an explanation of 
how to determine the amount of the deposit that will be held and when 
the funds will be available for deposit. Appendix C (C-12) contains a 
model notice.
    c. For deposits made in person to an employee of the depositary 
bank, the notice generally must be given to the person making the 
deposit, i.e., the ``depositor'', at the time of deposit. The depositor 
need not be the customer holding the account. For other deposits, such 
as deposits received at an ATM, lobby deposit box, night depository, or 
through the mail, notice must be mailed to the customer not later than 
the close of the business day following the banking day on which the 
deposit was made.
    d. Notice to the customer also may be provided at a later time, if 
the facts upon which the determination to invoke the exception do not 
become known to the depositary bank until after notice would otherwise 
have to be given. In these cases, the bank must mail the notice to the 
customer as soon as practicable, but not later than the business day 
following the day the facts become known. A bank is deemed to have 
knowledge when the facts are brought to the attention of the person or 
persons in the bank responsible for making the determination, or when 
the facts would have been brought to their attention if the bank had 
exercised due diligence.
    e. If the depositary bank extends the hold placed on a deposit due 
to an emergency condition, the notice requirement generally applies; 
however, the regulation provides that the bank need not provide a notice 
if the funds would be available for withdrawal before the notice must be 
sent. For example, if on the last day of a hold period the depositary 
bank experiences a computer failure and customer accounts cannot be 
updated in a timely fashion to reflect the funds as available balances, 
notices are not required if the funds are made available before the 
notices must be sent.
    f. In those cases described in paragraphs (g)(2) and (g)(3), the 
depositary bank need not provide a notice every time an exception hold 
is applied to a deposit. When paragraph (g)(2) or (g)(3) requires 
disclosure of the time period within which deposits subject to the 
exception generally will be available for withdrawal, the requirement 
may be satisfied if the one-time notice states when ``on us,'' local, 
and nonlocal checks will be available for withdrawal if an exception is 
invoked.
    2. One-time exception notice.
    a. Under paragraph (g)(2), if a nonconsumer account (see Commentary 
to Sec. 229.2(n)) is subject to the large deposit or redeposited check 
exception, the depositary bank may give its customer a single notice at 
or prior to the time notice must be provided under paragraph (g)(1). 
Notices provided under paragraph (g)(2) must contain the reason the 
exception may be invoked and the time period within which deposits 
subject to the exception will be available for withdrawal (see Model 
Notice C-14). A depositary bank may provide a one-time notice to a 
nonconsumer customer under paragraph (g)(2) only if each exception cited 
in the notice (the large deposit and/or the redeposited check exception) 
will be invoked for most check deposits to the customer's account to 
which the exception could apply. A one-time notice may state that the 
depositary bank will apply exception holds to certain subsets of 
deposits to which the large deposit or redeposited check exception may 
apply, and the notice should identify such subsets. For example, the 
depositary bank may apply the redeposited check exception only to checks 
that were redeposited automatically by the depositary bank in accordance 
with an agreement with the customer, rather than to all redeposited 
checks. In lieu of sending the one-time notice, a depositary bank may 
send individual hold notices for each deposit subject to the large 
deposit or redeposited check exception in accordance with 
Sec. 229.13(g)(1) (see Model Notice C-12).
    b. In the case of a deposit of multiple checks, the depositary bank 
has the discretion to place an exception hold on any combination of 
checks in excess of $5,000. The notice should enable a customer to 
determine the availability of the deposit in the case of a deposit of 
multiple checks. For example, if a customer deposits a $5,000 local 
check and a $5,000 nonlocal check, under the large deposit exception, 
the depositary bank may make funds available in the amount of (1) $100 
on the first business day after deposit, $4,900 on the second business 
day after deposit (local check), and $5,000 on the eleventh business day 
after deposit (nonlocal check with 6-day exception hold), or (2) $100 on 
the first business day after deposit, $4,900 on the fifth business day 
after deposit (nonlocal check), and $5,000 on the seventh business day 
after deposit (local check with 5-day exception hold). The notice should 
reflect the bank's priorities in placing exception holds on next-day (or 
second-day), local, and nonlocal checks.
    3. Notice of repeated overdraft exception. Under paragraph (g)(3), 
if an account is subject to the repeated overdraft exception, the 
depositary bank may provide one notice to its customer for each time 
period during which the exception will apply. Notices sent pursuant to 
paragraph (g)(3) must state the customer's account number, the fact the 
exception was invoked under the repeated overdraft exception, the time 
period within which deposits subject to the exception will be made 
available for withdrawal, and the time period during which the exception 
will apply (see Model Notice C-15). A depositary

[[Page 506]]

bank may provide a one-time notice to a customer under paragraph (g)(3) 
only if the repeated overdraft exception will be invoked for most check 
deposits to the customer's account.
    4. Record retention. A depositary bank must retain a record of each 
notice of a reasonable cause exception for a period of two years, or 
such longer time as provided in the record retention requirements of 
Sec. 229.21. This record must contain a brief description of the facts 
on which the depositary bank based its judgment that there was 
reasonable cause to doubt the collectibility of a check. In many cases, 
such as where the exception was invoked on the basis of a notice of 
nonpayment received, the record requirement may be met by retaining a 
copy of the notice sent to the customer. In other cases, such as where 
the exception was invoked on the basis of confidential information, a 
further description to the facts, such as insolvency of drawer, should 
be included in the record.

      I. 229.13(h)  Availability of Deposits Subject to Exceptions

    1. If a depositary bank invokes any exception other than the new 
account exception, the bank may extend the time within which funds must 
be made available under the schedule by a reasonable period of time. 
This provision establishes that an extension of up to one business day 
for ``on us'' checks, five business days for local checks, and six 
business days for nonlocal checks is reasonable. Under certain 
circumstances, however, a longer extension of the schedules may be 
reasonable. In these cases, the burden is placed on the depositary bank 
to establish that a longer period is reasonable.
    2. For example, assume a bank extended the hold on a local check 
deposit by five business days based on its reasonable cause to believe 
that the check is uncollectible. If, on the day before the extended hold 
is scheduled to expire, the bank receives a notification from the paying 
bank that the check is being returned unpaid, the bank may determine 
that a longer hold is warranted, if it decides not to charge back the 
customer's account based on the notification. If the bank decides to 
extend the hold, the bank must send a second notice, in accordance with 
paragraph (g) of this section, indicating the new date that the funds 
will be available for withdrawal.
    3. With respect to Treasury checks, U.S. Postal Service money 
orders, checks drawn on Federal Reserve Banks or Federal Home Loan 
Banks, state and local government checks, cashier's checks, certified 
checks, and teller's checks subject to the next-day (or second-day) 
availability requirement, the depositary bank may extend the time funds 
must be made available for withdrawal under the large deposit, 
redeposited check, repeated overdraft, or reasonable cause exception by 
a reasonable period beyond the delay that would have been permitted 
under the regulation had the checks not been subject to the next-day (or 
second-day) availability requirement. The additional hold is added to 
the local or nonlocal schedule that would apply based on the location of 
the paying bank.
    4. One business day for ``on us'' checks, five business days for 
local checks, and six business days for nonlocal checks, in addition to 
the time period provided in the schedule, should provide adequate time 
for the depositary bank to learn of the nonpayment of virtually all 
checks that are returned. For example, if a customer deposits a $7,000 
cashier's check drawn on a nonlocal bank, and the depositary bank 
applies the large deposit exception to that check, $5,000 must be 
available for withdrawal on the first business day after the day of 
deposit and the remaining $2,000 must be available for withdrawal on the 
eleventh business day following the day of deposit (six business days 
added to the five-day schedule for nonlocal checks), unless the 
depositary bank establishes that a longer hold is reasonable.
    5. In the case of the application of the emergency conditions 
exception, the depositary bank may extend the hold placed on a check by 
not more than a reasonable period following the end of the emergency or 
the time funds must be available for withdrawal under Secs. 229.10(c) or 
229.12, whichever is later.
    6. This provision does not apply to holds imposed under the new 
account exception. Under that exception, the maximum time period within 
which funds must be made available for withdrawal is specified for 
deposits that generally must be accorded next-day availability under 
Sec. 229.10. This subpart does not specify the maximum time period 
within which the proceeds of local and nonlocal checks must be made 
available for withdrawal during the new account period.

                VIII. Section 229.14  Payment of Interest

                        A. 229.14(a)  In General

    1. This section requires that a depositary bank begin accruing 
interest on interest-bearing accounts not later than the day on which 
the depositary bank receives credit for the funds deposited.3 A 
depositary bank generally receives credit on checks within one

[[Page 507]]

or two days following deposit. A bank receives credit on a cash deposit, 
an electronic payment, and the deposit of a check that is drawn on the 
depositary bank itself on the day the cash, electronic payment, or check 
is received. In the case of a deposit at a nonproprietary ATM, credit 
generally is received on the day the bank that operates the ATM credits 
the depositary bank for the amount of the deposit.
---------------------------------------------------------------------------

    \3\ This section implements section 606 of the Act (12 U.S.C. 4005). 
The Act keys the requirement to pay interest to the time the depositary 
bank receives provisional credit for a check. Provisional credit is a 
term used in the U.C.C. that is derived from the Code's concept of 
provisional settlement. (See U.C.C. 4-214 and 4-215.) Provisional credit 
is credit that is subject to charge-back if the check is returned 
unpaid; once the check is finally paid, the right to charge back expires 
and the provisional credit becomes final. Under Subpart C, a paying bank 
no longer has an automatic right to charge back credits given in 
settlement of a check, and the concept of provisional settlement is no 
longer useful and has been eliminated by the regulation. Accordingly, 
this section uses the term credit rather than provisional credit, and 
this section applies regardless of whether a credit would be provisional 
or final under the U.C.C. Credit does not include a bookkeeping entry 
(sometimes referred to as deferred credit) that does not represent funds 
actually available for the bank's use.
---------------------------------------------------------------------------

    2. Because account includes only transaction accounts, other 
interest-bearing accounts of the depositary bank, such as money market 
deposit accounts, savings deposits, and time deposits, are not subject 
to this requirement; however, a bank may accrue interest on such 
deposits in the same way that it accrues interest under this paragraph 
for simplicity of operation. The Board intends the term interest to 
refer to payments to or for the account of any customer as compensation 
for the use of funds, but to exclude the absorption of expenses incident 
to providing a normal banking function or a bank's forbearance from 
charging a fee in connection with such a service. (See 12 CFR 217.2(d).) 
Thus, earnings credits often applied to corporate accounts are not 
interest payments for the purposes of this section.
    3. It may be difficult for a depositary bank to track which day the 
depositary bank receives credit for specific checks in order to accrue 
interest properly on the account to which the check is deposited. This 
difficulty may be pronounced if the bank uses different means of 
collecting checks based on the time of day the check is received, the 
dollar amount of the check, and/or the paying bank to which it must be 
sent. Thus, for the purpose of the interest accrual requirement, a bank 
may rely on an availability schedule from its Federal Reserve Bank, 
Federal Home Loan Bank, or correspondent to determine when the 
depositary bank receives credit. If availability is delayed beyond that 
specified in the availability schedule, a bank may charge back interest 
erroneously accrued or paid on the basis of that schedule.
    4. This paragraph also permits a depositary bank to accrue interest 
on checks deposited to all of its interest-bearing accounts based on 
when the bank receives credit on all checks sent for payment or 
collection. For example, if a bank receives credit on 20 percent of the 
funds deposited in the bank by check as of the business day of deposit 
(e.g., ``on us'' checks), 70 percent as of the business day following 
deposit, and 10 percent on the second business day following deposit, 
the bank can apply these percentages to determine the day interest must 
begin to accrue on check deposits to all interest-bearing accounts, 
regardless of when the bank received credit on the funds deposited in 
any particular account. Thus, a bank may begin accruing interest on a 
uniform basis for all interest-bearing accounts, without the need to 
track the type of check deposited to each account.
    5. This section is not intended to limit a policy of a depositary 
bank that provides that interest accrues only on balances that exceed a 
specified amount, or on the minimum balance maintained in the account 
during a given period, provided that the balance is determined based on 
the date that the depositary bank receives credit for the funds. This 
section also is not intended to limit any policy providing that interest 
accrues sooner than required by this paragraph.

              B. 229.14(b)  Special Rule for Credit Unions

    1. This provision implements a requirement in section 606(b) of the 
Act, and provides an exemption from the payment-of-interest requirements 
for credit unions that do not begin to accrue interest or dividends on 
their customer accounts until a later date than the day the credit union 
receives credit for those deposits, including cash deposits. These 
credit unions are exempt from the payment-of-interest requirements, as 
long as they provide notice of their interest accrual policies in 
accordance with Sec. 229.16(d). For example, if a credit union has a 
policy of computing interest on all deposits received by the 10th of the 
month from the first of that month, and on all deposits received after 
the 10th of the month from the first of the next month, that policy is 
not superseded by this regulation, if the credit union provides proper 
disclosure of this policy to its customers.
    2. The Act limits this exemption to credit unions; other types of 
banks must comply with the payment-of-interest requirements. In 
addition, credit unions that compute interest from the day of deposit or 
day of credit should not change their existing practices in order to 
avoid compliance with the requirement that interest accrue from the day 
the credit union receives credit.

[[Page 508]]

           C. 229.14(c)  Exception for Checks Returned Unpaid

    1. This provision is based on section 606(c) of the Act (12 U.S.C. 
4005(c)) and provides that interest need not be paid on funds deposited 
in an interest-bearing account by check that has been returned unpaid, 
regardless of the reason for return.

           IX. Section 229.15  General Disclosure Requirements

                    A. 229.15(a)  Form of Disclosures

    1. This paragraph sets forth the general requirements for the 
disclosures required under Subpart B. All of the disclosures must be 
given in a clear and conspicuous manner, must be in writing, and, in 
most cases, must be in a form the customer may keep. Disclosures posted 
at locations where employees accept consumer deposits, at ATMs, and on 
preprinted deposit slips need not be in a form that the customer may 
keep. Appendix C of the regulation contains model forms, clauses, and 
notices to assist banks in preparing disclosures.
    2. Disclosures concerning availability must be grouped together and 
may not contain any information that is not related to the disclosures 
required by this subpart. Therefore, banks may not intersperse the 
required disclosures with other account disclosures, and may not include 
other account information that is not related to their availability 
policy within the text of the required disclosures. Banks may, however, 
include information that is related to their availability policies. For 
example, a bank may inform its customers that, even when the bank has 
already made funds available for withdrawal, the customer is responsible 
for any problem with the deposit, such as the return of a deposited 
check.
    3. The regulation does not require that the disclosures be 
segregated from other account terms and conditions. For example, banks 
may include the disclosure of their specific availability policy in a 
booklet or pamphlet that sets out all of the terms and conditions of the 
bank's accounts. The required disclosures must, however, be grouped 
together and highlighted or identified in some manner, for example, by 
use of a separate heading for the disclosures, such as ``When Deposits 
are Available for Withdrawal.''

         B. 229.15(b)  Uniform Reference to Day of Availability

    1. This paragraph requires banks to disclose in a uniform manner 
when deposited funds will be available for withdrawal. Banks must 
disclose when deposited funds are available for withdrawal by stating 
the business day on which the customer may begin to withdraw funds. The 
business day funds will be available must be disclosed as ``the 
________________ business day after'' the day of deposit, or 
substantially similar language. The business day of availability is 
determined by counting the number of business days starting with the 
business day following the banking day on which the deposit is received, 
as determined under Sec. 229.19(a), and ending with the business day on 
which the customer may begin to withdraw funds. For example, a bank that 
imposes delays of four intervening business days for nonlocal checks 
must describe those checks as being available on ``the fifth business 
day after'' the day of the deposit.

       C. 229.15(c) Multiple Accounts and Multiple Account Holders

    1. This paragraph clarifies that banks need not provide multiple 
disclosures under the regulation. A single disclosure to a customer that 
holds multiple accounts, or a single disclosure to one of the account 
holders of a jointly held account, satisfies the disclosure requirements 
of the regulation.

                D. 229.15(d) Dormant or Inactive Accounts

    1. This paragraph makes clear that banks need not provide disclosure 
of their specific availability policies to customers that hold accounts 
that are either dormant or inactive. The determination that certain 
accounts are dormant or inactive must be made by the bank. If a bank 
considers an account dormant or inactive for purposes other than this 
regulation and no longer provides statements and other mailings to an 
account for this reason, such an account is considered dormant or 
inactive for purposes of this regulation.

        X. Section 229.16 Specific Availability Policy Disclosure

                          A. 229.16(a)  General

    1. This section describes the information that must be disclosed by 
banks to comply with Secs. 229.17 and 229.18(d), which require that 
banks furnish notices of their specific policy regarding availability of 
deposited funds. The disclosure provided by a bank must reflect the 
availability policy followed by the bank in most cases, even though a 
bank may in some cases make funds available sooner or impose a longer 
delay.
    2. The disclosure must reflect the policy and practice of the bank 
regarding availability as to most accounts and most deposits into those 
accounts. In disclosing the availability policy that it follows in most 
cases, a bank may provide a single disclosure that reflects one policy 
to all its transaction account customers, even though some of its 
customers may receive faster availability than that reflected in the 
policy disclosure. Thus, a bank need not disclose to some customers that 
they receive faster availability

[[Page 509]]

than indicated in the disclosure. If, however, a bank has a policy of 
imposing delays in availability on any customers longer than those 
specified in its disclosure, those customers must receive disclosures 
that reflect the longer applicable availability periods.
    3. A bank may disclose that funds are available for withdrawal on a 
given day notwithstanding the fact that the bank uses the funds to pay 
checks received before that day. For example, a bank may disclose that 
its policy is to make funds available from deposits of local checks on 
the second business day following the day of deposit, even though it may 
use the deposited funds to pay checks prior to the second business day; 
the funds used to pay checks in this example are not available for 
withdrawal until the second business day after deposit because the funds 
are not available for all uses until the second business day. (See the 
definition of available for withdrawal in Sec. 229.2(d).)

           B. 229.16(b)  Content of Specific Policy Disclosure

    1. This paragraph sets forth the items that must be included, as 
applicable, in a bank's specific availability policy disclosure. The 
information that must be disclosed by a particular bank will vary 
considerably depending upon the bank's availability policy. For example, 
a bank that makes deposited funds available for withdrawal on the 
business day following the day of deposit need simply disclose that 
deposited funds will be available for withdrawal on the first business 
day after the day of deposit, the bank's business days, and when 
deposits are considered received.
    2. On the other hand, a bank that has a policy of routinely delaying 
on a blanket basis the time when deposited funds are available for 
withdrawal would have a more detailed disclosure. Such blanket hold 
policies might be for the maximum time allowed under the federal law or 
might be for shorter periods. These banks must disclose the types of 
deposits that will be subject to delays, how the customer can determine 
the type of deposit being made, and the day that funds from each type of 
deposit will be available for withdrawal.
    3. Some banks may have a combination of next-day availability and 
blanket delays. For example, a bank may provide next-day availability 
for all deposits except for one or two categories, such as deposits at 
nonproprietary ATMs and nonlocal personal checks over a specified dollar 
amount. The bank would describe the categories that are subject to 
delays in availability and tell the customer when each category would be 
available for withdrawal, and state that other deposits will be 
available for withdrawal on the first business day after the day of 
deposit. Similarly, a bank that provides availability on the second 
business day for most of its deposits would need to identify the 
categories of deposits which, under the regulation, are subject to next-
day availability and state that all other deposits will be available on 
the second business day.
    4. Because many banks' availability policies may be complex, a bank 
must give a brief summary of its policy at the beginning of the 
disclosure. In addition, the bank must describe any circumstances when 
actual availability may be longer than the schedules disclosed. Such 
circumstances would arise, for example, when the bank invokes one of the 
exceptions set forth in Sec. 229.13 of the regulation, or when the bank 
delays or extends the time when deposited funds are available for 
withdrawal up to the time periods allowed by the regulation on a case-
by-case basis. Also, a bank that must make certain checks available 
faster under Appendix B (reduction of schedules for certain nonlocal 
checks) must state that some check deposits will be available for 
withdrawal sooner because of special rules and that a list of the 
pertinent routing numbers is available upon request.
    5. Generally, a bank that distinguishes in its disclosure between 
local and nonlocal checks based on the routing number on the check must 
disclose to its customers that certain checks, such as some credit union 
payable-through drafts, will be treated as local or nonlocal based on 
the location of the bank by which they are payable (e.g., the credit 
union), and not on the basis of the location of the bank whose routing 
number appears on the check. A bank is not required to provide this 
disclosure, however, if it makes the proceeds of both local and nonlocal 
checks available for withdrawal within the time periods required for 
local checks in Secs. 229.12 and 229.13.
    6. The business day cut-off time used by the bank must be disclosed 
and if some locations have different cut-off times the bank must note 
this in the disclosure and state the earliest time that might apply. A 
bank need not list all of the different cut-off times that might apply.
    7. A bank taking advantage of the extended time period for making 
deposits at nonproprietary ATMs available for withdrawal under 
Sec. 229.12(f) must explain this in the initial disclosure. In addition, 
the bank must provide a list (on or with the initial disclosure) of 
either the bank's proprietary ATMs or those ATMs that are nonproprietary 
at which customers may make deposits. As an alternative to providing 
such a list, the bank may label all of its proprietary ATMs with the 
bank's name and state in the initial disclosure that this has been done. 
Similarly, a bank taking advantage of the cash withdrawal limitations of 
Sec. 229.12(d), or the provision in Sec. 229.19(e) allowing holds to be 
placed on other deposits when a deposit is made or a check is cashed, 
must explain this in the initial disclosure.

[[Page 510]]

    8. A bank that provides availability based on when the bank 
generally receives credit for deposited checks need not disclose the 
time when a check drawn on a specific bank will be available for 
withdrawal. Instead, the bank may disclose the categories of deposits 
that must be available on the first business day after the day of 
deposit (deposits subject to Sec. 229.10) and state the other categories 
of deposits and the time periods that will be applicable to those 
deposits. For example, a bank might disclose the four-digit Federal 
Reserve routing symbol for local checks and indicate that such checks as 
well as certain nonlocal checks will be available for withdrawal on the 
first or second business day following the day of deposit, depending on 
the location of the particular bank on which the check is drawn, and 
disclose that funds from all other checks will be available on the 
second or third business day. The bank must also disclose that the 
customer may request a copy of the bank's detailed schedule that would 
enable the customer to determine the availability of any check and must 
provide such schedule upon request. A change in the bank's detailed 
schedule would not trigger the change in policy disclosure requirement 
of Sec. 229.18(e).

           C. 229.16(c)  Longer Delays on a Case-by-Case Basis

    1. Notice in specific policy disclosure.
    a. Banks that make deposited funds available for withdrawal sooner 
than required by the regulation--for example, providing their customers 
with immediate or next-day availability for deposited funds--and delay 
the time when funds are available for withdrawal only from time to time 
determined on a case-by-case basis, must provide notice of this in their 
specific availability policy disclosure. This paragraph outlines the 
requirements for that notice.
    b. In addition to stating what their specific availability policy is 
in most cases, banks that may delay or extend the time when deposits are 
available on a case-by-case basis must: state that from time to time 
funds may be available for withdrawal later than the time periods in 
their specific policy disclosure, disclose the latest time that a 
customer may have to wait for deposited funds to be available for 
withdrawal when a case-by-case hold is placed, state that customers will 
be notified when availability of a deposit is delayed on a case-by-case 
basis, and advise customers to ask if they need to be sure of the 
availability of a particular deposit.
    c. A bank that imposes delays on a case-by-case basis is still 
subject to the availability requirements of this regulation. If the bank 
imposes a delay on a particular deposit that is not longer than the 
availability required by Sec. 229.12 for local and nonlocal checks, the 
reason for the delay need not be based on the exceptions provided in 
Sec. 229.13. If the delay exceeds the time periods permitted under 
Sec. 229.12, however, then it must be based on an exception provided in 
Sec. 229.13, and the bank must comply with the Sec. 229.13 notice 
requirements. A bank that imposes delays on a case-by-case basis may 
avail itself of the one-time notice provisions in Sec. 229.13(g)(2) and 
(3) for deposits to which those provisions apply.
    2. Notice at time of case-by-case delay.
    a. In addition to including the disclosures required by paragraph 
(c)(1) of this section in their specific availability policy disclosure, 
banks that delay or extend the time period when funds are available for 
withdrawal on a case-by-case basis must give customers a notice when 
availability of funds from a particular deposit will be delayed or 
extended beyond the time when deposited funds are generally available 
for withdrawal. The notice must state that a delay is being imposed and 
indicate when the funds will be available. In addition, the notice must 
include the account number, the date and amount of the deposit, and the 
amount of the deposit being delayed.
    b. If notice of the delay was not given at the time the deposit was 
made and the bank assesses overdraft or returned check fees on accounts 
when a case-by-case hold has been placed, the case-by-case hold notice 
provided to the customer must include a notice concerning overdraft or 
returned check fees. The notice must state that the customer may be 
entitled to a refund of any overdraft or returned check fees that result 
from the deposited funds not being available if the check that was 
deposited was in fact paid by the payor bank, and explain how to request 
a refund of any fees. (See Sec. 229.16(c)(3).)
    c. The requirement that the case-by-case hold notice state the day 
that funds will be made available for withdrawal may be met by stating 
the date or the number of business days after deposit that the funds 
will be made available. This requirement is satisfied if the notice 
provides information sufficient to indicate when funds will be available 
and the amounts that will be available at those times. For example, for 
a deposit involving more than one check, the bank need not provide a 
notice that discloses when funds from each individual item in the 
deposit will be available for withdrawal. Instead, the bank may provide 
a total dollar amount for each of the time periods when funds will be 
available, or provide the customer with an explanation of how to 
determine the amount of the deposit that will be held and when the held 
funds will be available for withdrawal.
    d. For deposits made in person to an employee of the depositary 
bank, the notice generally must be given at the time of the deposit. The 
notice at the time of the deposit must be given to the person making the 
deposit, that is, the ``depositor.'' The depositor

[[Page 511]]

need not be the customer holding the account. For other deposits, such 
as deposits received at an ATM, lobby deposit box, night depository, 
through the mail, or by armored car, notice must be mailed to the 
customer not later than the close of the business day following the 
banking day on which the deposit was made. Notice to the customer also 
may be provided not later than the close of the business day following 
the banking day on which the deposit was made if the decision to delay 
availability is made after the time of the deposit.
    3. Overdraft and returned check fees. If a depositary bank delays or 
extends the time when funds from a deposited check are available for 
withdrawal on a case-by-case basis and does not provide a written notice 
to its depositor at the time of deposit, the depositary bank may not 
assess any overdraft or returned check fees (such as an insufficient 
funds charge) or charge interest for use of an overdraft line of credit, 
if the deposited check is paid by the paying bank and these fees would 
not have occurred had the additional case-by-case delay not been 
imposed. A bank may assess an overdraft or returned check fee under 
these circumstances, however, if it provides notice to the customer in 
the notice required by paragraph (c)(2) of this section that the fee may 
be subject to refund, and refunds the fee upon the request of the 
customer when required to do so. The notice must state that the customer 
may be entitled to a refund of any overdraft or returned check fees that 
are assessed if the deposited check is paid, and indicate where such 
requests for a refund of overdraft fees should be directed. Paragraph 
(c)(3) applies when a bank provides a case-by-case notice in accordance 
with paragraph (c)(2) and does not apply if the bank has provided an 
exception hold notice in accordance with Sec. 229.13.

      D. 229.16(d)  Credit Union Notice of Interest Payment Policy

    1. This paragraph sets forth the special disclosure requirement for 
credit unions that delay accrual of interest or dividends for all cash 
and check deposits beyond the date of receiving provisional credit for 
checks being deposited. (The interest payment requirement is set forth 
in Sec. 229.14(a).) Such credit unions are required to describe their 
policy with respect to accrual of interest or dividends on deposits in 
their specific availability policy disclosure.

                 XI. Section 229.17  Initial Disclosures

    A. This paragraph requires banks to provide a notice of their 
availability policy to all potential customers prior to opening an 
account. The requirement of a notice prior to opening an account 
requires banks to provide disclosures prior to accepting a deposit to 
open an account. Disclosures must be given at the time the bank accepts 
an initial deposit regardless of whether the bank has opened the account 
yet for the customer. If a bank, however, receives a written request by 
mail from a person asking that an account be opened and the request 
includes an initial deposit, the bank may open the account with the 
deposit, provided the bank mails the required disclosures to the 
customer not later than the business day following the banking day on 
which the bank receives the deposit. Similarly, if a bank receives a 
telephone request from a customer asking that an account be opened with 
a transfer from a separate account of the customer's at the bank, the 
disclosure may be mailed not later than the business day following the 
banking day of the request.

         XII. Section 229.18  Additional Disclosure Requirements

                       A. 229.18(a)  Deposit Slips

    1. This paragraph requires banks to include a notice on all 
preprinted deposit slips. The deposit slip notice need only state, 
somewhere on the front of the deposit slip, that deposits may not be 
available for immediate withdrawal. The notice is required only on 
preprinted deposit slips--those printed with the customer's account 
number and name and furnished by the bank in response to a customer's 
order to the bank. A bank need not include the notice on deposit slips 
that are not preprinted and supplied to the customer--such as counter 
deposit slips--or on those special deposit slips provided to the 
customer under Sec. 229.10(c). A bank is not responsible for ensuring 
that the notice appear on deposit slips that the customer does not 
obtain from or through the bank. This paragraph applies to preprinted 
deposit slips furnished to customers on or after September 1, 1988.

    B. 229.18(b)  Locations Where Employees Accept Consumer Deposits

    1. This paragraph describes the statutory requirement that a bank 
post in each location where its employees accept consumer deposits a 
notice of its availability policy pertaining to consumer accounts. The 
notice that is required must specifically state the availability periods 
for the various deposits that may be made to consumer accounts. The 
notice need not be posted at each teller window, but the notice must be 
posted in a place where consumers seeking to make deposits are likely to 
see it before making their deposits. For example, the notice might be 
posted at the point where the line forms for teller service in the 
lobby. The notice is not required at any drive-through teller windows 
nor is it required at night depository locations, or at locations where 
consumer deposits are not accepted.

[[Page 512]]

                 C. 229.18(c)  Automated Teller Machines

    1. This paragraph sets forth the required notices for ATMs. 
Paragraph (c)(1) provides that the depositary bank is responsible for 
posting a notice on all ATMs at which deposits can be made to accounts 
at the depositary bank. The depositary bank may arrange for a third 
party, such as the owner or operator of the ATM, to post the notice and 
indemnify the depositary bank from liability if the depositary bank is 
liable under Sec. 229.21 for the owner or operator failing to provide 
the required notice.
    2. The notice may be posted on a sign, shown on the screen, or 
included on deposit envelopes provided at the ATM. This disclosure must 
be given before the customer has made the deposit. Therefore, a notice 
provided on the customer's deposit receipt or appearing on the ATM's 
screen after the customer has made the deposit would not satisfy this 
requirement.
    3. Paragraph (c)(2) requires a depositary bank that operates an off-
premise ATM from which deposits are removed not more than two times a 
week to make a disclosure of this fact on the off-premise ATM. The 
notice must disclose to the customer the days on which deposits made at 
the ATM will be considered received.

                       D. 229.18(d)  Upon Request

    1. This paragraph requires banks to provide written notice of their 
specific availability policy to any person upon that person's oral or 
written request. The notice must be sent within a reasonable period of 
time following receipt of the request.

                     E. 229.18(e)  Changes in Policy

    1. This paragraph requires banks to send notices to their customers 
when the banks change their availability policies with regard to 
consumer accounts. A notice may be given in any form as long as it is 
clear and conspicuous. If the bank gives notice of a change by sending 
the customer a complete new availability disclosure, the bank must 
direct the customer to the changed terms in the disclosure by use of a 
letter or insert, or by highlighting the changed terms in the 
disclosure.
    2. Generally, a bank must send a notice at least 30 calendar days 
before implementing any change in its availability policy. If the change 
results in faster availability of deposits--for example, if the bank 
changes its availability for nonlocal checks from the fifth business day 
after deposit to the fourth business day after deposit--the bank need 
not send advance notice. The bank must, however, send notice of the 
change no later than 30 calendar days after the change is implemented. A 
bank is not required to give a notice when there is a change in Appendix 
B (reduction of schedules for certain nonlocal checks).
    3. A bank that has provided its customers with a list of ATMs under 
Sec. 229.16(b)(5) shall provide its customers with an updated list of 
ATMs once a year if there are changes in the list of ATMs previously 
disclosed to the customers.

                   XIII. Section 229.19  Miscellaneous

            A. 229.19(a)  When Funds Are Considered Deposited

    1. The time funds must be made available for withdrawal under this 
subpart is determined by the day the deposit is made. This paragraph 
provides rules to determine the day funds are considered deposited in 
various circumstances.
    2. Staffed facilities and ATMs. Funds received at a staffed teller 
station or ATM are considered deposited when received by the teller or 
placed in the ATM. Funds deposited to a deposit box in a bank lobby that 
is accessible to customers only during regular business hours generally 
are considered deposited when placed in the lobby box; a bank may, 
however, treat deposits to lobby boxes the same as deposits to night 
depositories (as provided in Sec. 229.19(a)(3)), provided a notice 
appears on the lobby box informing the customer when such funds will be 
considered deposited.
    3. Mail. Funds mailed to the depositary bank are considered 
deposited on the banking day they are received by the depositary bank. 
The funds are received by the depositary bank at the time the mail is 
delivered to the bank, even if it is initially delivered to a mail room, 
rather than the check processing area.
    4. Other facilities.
    a. In addition to deposits at staffed facilities, at ATMs, and by 
mail, funds may be deposited at a facility such as a night depository or 
a lock box. A night depository is a receptacle for receipt of deposits, 
typically used by corporate depositors when the branch is closed. Funds 
deposited at a night depository are considered deposited on the banking 
day the deposit is removed, and the contents of the deposit are 
accessible to the depositary bank for processing. For example, some 
businesses deposit their funds in a locked bag at the night depository 
late in the evening, and return to the bank the following day to open 
the bag. Other depositors may have an agreement with their bank that the 
deposit bag must be opened under the dual control of the bank and the 
depositor. In these cases, the funds are considered deposited when the 
customer returns to the bank and opens the deposit bag.

[[Page 513]]

    b. A lock box is a post office box used by a corporation for the 
collection of bill payments or other check receipts. The depositary bank 
generally assumes the responsibility for collecting the mail from the 
lock box, processing the checks, and crediting the corporation for the 
amount of the deposit. Funds deposited through a lock box arrangement 
are considered deposited on the day the deposit is removed from the lock 
box and are accessible to the depositary bank for processing.
    5. Certain off-premise ATMs. A special provision is made for certain 
off-premise ATMs that are not serviced daily. Funds deposited at such an 
ATM are considered deposited on the day they are removed from the ATM, 
if the ATM is not serviced more than two times each week. This provision 
is intended to address the practices of some banks of servicing certain 
remote ATMs infrequently. If a depositary bank applies this provision 
with respect to an ATM, a notice must be posted at the ATM informing 
depositors that funds deposited at the ATM may not be considered 
deposited until a future day, in accordance with Sec. 229.18.
    6. Banking day of deposit.
    a. This paragraph also provides that a deposit received on a day 
that the depositary bank is closed, or after the bank's cut-off hour, 
may be considered made on the next banking day. Generally, for purposes 
of the availability schedules of this subpart, a bank may establish a 
cut-off hour of 2 p.m. or later for receipt of deposits at its head 
office or branch offices. For receipt of deposits at ATMs or off-premise 
facilities, such as night depositories or lock boxes, the depositary 
bank may establish a cut-off hour of 12 noon or later (either local time 
of the branch or other location of the depositary bank at which the 
account is maintained or local time of the ATM or off-premise facility). 
The depositary bank must use the same timing method for establishing the 
cut-off hour for all ATMs and off-premise facilities used by its 
customers. The choice of cut-off hour must be reflected in the bank's 
internal procedures, and the bank must inform its customers of the cut-
off hour upon request. This earlier cut-off for ATM or off-premise 
deposits is intended to provide greater flexibility in the servicing of 
ATMs and other off-premise facilities.
    b. Different cut-off hours may be established for different types of 
deposits. For example, a bank may establish a 2 p.m. cut-off for the 
receipt of check deposits, but a later cut-off for the receipt of wire 
transfers. Different cut-off hours also may be established for deposits 
received at different locations. For example, a different cut-off may be 
established for ATM deposits than for over-the-counter deposits, or for 
different teller stations at the same branch. With the exception of the 
12 noon cut-off for deposits at ATMs and off-premise facilities, no cut-
off hour for receipt of deposits for purposes of this subpart can be 
established earlier than 2 p.m.
    c. A bank is not required to remain open until 2 p.m. If a bank 
closes before 2 p.m., deposits received after the closing may be 
considered deposited on the next banking day. Further, as Sec. 229.2(f) 
defines the term banking day as the portion of a business day on which a 
bank is open to the public for substantially all of its banking 
functions, a day, or a portion of a day, is not necessarily a banking 
day merely because the bank is open for only limited functions, such as 
keeping drive-in or walk-up teller windows open, when the rest of the 
bank is closed to the public. For example, a banking office that usually 
provides a full range of banking services may close at 12 noon but leave 
a drive-in teller window open for the limited purpose of receiving 
deposits and making cash withdrawals. Under those circumstances, the 
bank is considered closed and may consider deposits received after 12 
noon as having been received on the next banking day. The fact that a 
bank may reopen for substantially all of its banking functions after 2 
p.m., or that it continues its back office operations throughout the 
day, would not affect this result. A bank may not, however, close 
individual teller stations and reopen them for next-day's business 
before 2 p.m. during a banking day.

           B. 229.19(b)  Availability at Start of Business Day

    1. If funds must be made available for withdrawal on a business day, 
the funds must be available for withdrawal by the later of 9 a.m. or the 
time the depositary bank's teller facilities, including ATMs, are 
available for customer account withdrawals, except under the special 
rule for cash withdrawals set forth in Sec. 229.12(d). Thus, if a bank 
has no ATMs and its branch facilities are available for customer 
transactions beginning at 10 a.m., funds must be available for customer 
withdrawal beginning at 10 a.m. If the bank has ATMs that are available 
24 hours a day, rather than establishing 12:01 a.m. as the start of the 
business day, this paragraph sets 9 a.m. as the start of the day with 
respect to ATM withdrawals. The Board believes that this rule provides 
banks with sufficient time to update their accounting systems to reflect 
the available funds in customer accounts for that day.
    2. The start of business is determined by the local time of the 
branch or other location of the depositary bank at which the account is 
maintained. For example, if funds in a customer's account at a west 
coast bank are first made available for withdrawal at the start of 
business on a given day, and the customer attempts to withdraw the funds 
at

[[Page 514]]

an east coast ATM, the depositary bank is not required to make the funds 
available until 9 a.m. west coast time (12 noon east coast time).

           C. 229.19(c)  Effect on Policies of Depositary Bank

    1. This subpart establishes the maximum hold that may be placed on 
customer deposits. A depositary bank may provide availability to its 
customers in a shorter time than prescribed in this subpart. A 
depositary bank also may adopt different funds availability policies for 
different segments of its customer base, as long as each policy meets 
the schedules in the regulation. For example, a bank may differentiate 
between its corporate and consumer customers, or may adopt different 
policies for its consumer customers based on whether a customer has an 
overdraft line of credit associated with the account.
    2. This regulation does not affect a depositary bank's right to 
accept or reject a check for deposit, to charge back the customer's 
account based on a returned check or notice of nonpayment, or to claim a 
refund for any credit provided to the customer. For example, even if a 
check is returned or a notice of nonpayment is received after the time 
by which funds must be made available for withdrawal in accordance with 
this regulation, the depositary bank may charge back the customer's 
account for the full amount of the check. (See Sec. 229.33(d) and 
Commentary.)
    3. Nothing in the regulation requires a depositary bank to have 
facilities open for customers to make withdrawals at specified times or 
on specified days. For example, even though the special cash withdrawal 
rule set forth in Sec. 229.12(d) states that a bank must make up to $400 
available for cash withdrawals no later than 5 p.m. on specific business 
days, if a bank does not participate in an ATM system and does not have 
any teller windows open at or after 5 p.m., the bank need not join an 
ATM system or keep offices open. In this case, the bank complies with 
this rule if the funds that are required to be available for cash 
withdrawal at 5 p.m. on a particular day are available for withdrawal at 
the start of business on the following day. Similarly, if a depositary 
bank is closed for customer transactions, including ATMs, on a day funds 
must be made available for withdrawal, the regulation does not require 
the bank to open.
    4. The special cash withdrawal rule in the Act recognizes that the 
$400 that must be made available for cash withdrawal by 5 p.m. on the 
day specified in the schedule may exceed a bank's daily ATM cash 
withdrawal limit and explicitly provides that the Act does not supersede 
a bank's policy in this regard. As a result, if a bank has a policy of 
limiting cash withdrawals from automated teller machines to $250 per 
day, the regulation would not require that the bank dispense $400 of the 
proceeds of the customer's deposit that must be made available for cash 
withdrawal on that day.
    5. Even though the Act clearly provides that the bank's ATM 
withdrawal limit is not superseded by the federal availability rules on 
the day funds must first be made available, the Act does not 
specifically permit banks to limit cash withdrawals at ATMs on 
subsequent days when the entire amount of the deposit must be made 
available for withdrawal. The Board believes that the rationale behind 
the Act's provision that a bank's ATM withdrawal limit is not superseded 
by the requirement that funds be made available for cash withdrawal 
applies on subsequent days. Nothing in the regulation prohibits a 
depositary bank from establishing ATM cash withdrawal limits that vary 
among customers of the bank, as long as the limit is not dependent on 
the length of time funds have been in the customer's account (provided 
that the permissible hold has expired).
    6. Some small banks, particularly credit unions, due to lack of 
secure facilities, keep no cash on their premises and hence offer no 
cash withdrawal capability to their customers. Other banks limit the 
amount of cash on their premises due to bonding requirements or cost 
factors, and consequently reserve the right to limit the amount of cash 
each customer can withdraw over-the-counter on a given day. For example, 
some banks require advance notice for large cash withdrawals in order to 
limit the amount of cash needed to be maintained on hand at any time.
    7. Nothing in the regulation is intended to prohibit a bank from 
limiting the amount of cash that may be withdrawn at a staffed teller 
station if the bank has a policy limiting the amount of cash that may be 
withdrawn, and if that policy is applied equally to all customers of the 
bank, is based on security, operating, or bonding requirements, and is 
not dependent on the length of time the funds have been in the 
customer's account (as long as the permissible hold has expired). The 
regulation, however, does not authorize such policies if they are 
otherwise prohibited by statutory, regulatory, or common law.

              D. 229.19(d)  Use of Calculated Availability

    1. A depositary bank may provide availability to its nonconsumer 
accounts on a calculated availability basis. Under calculated 
availability, a specified percentage of funds from check deposits may be 
made available to the customer on the next business day, with the 
remaining percentage deferred until subsequent days. The determination 
of the percentage of deposited funds that will be made available each 
day is based on the customer's typical deposit mix as determined by

[[Page 515]]

a sample of the customer's deposits. Use of calculated availability is 
permitted only if, on average, the availability terms that result from 
the sample are equivalent to or more prompt than the requirements of 
this subpart.

                   E. 229.19(e)  Holds on Other Funds

    1. Section 607(d) of the Act (12 U.S.C. 4006(d)) provides that once 
funds are available for withdrawal under the Act, such funds shall not 
be frozen solely due to the subsequent deposit of additional checks that 
are not yet available for withdrawal. This provision of the Act is 
designed to prevent evasion of the Act's availability requirements.
    2. This paragraph clarifies that if a customer deposits a check in 
an account (as defined in Sec. 229.2(a)), the bank may not place a hold 
on any of the customer's funds so that the funds that are held exceed 
the amount of the check deposited or the total amount of funds held are 
not made available for withdrawal within the times required in this 
subpart. For example, if a bank places a hold on funds in a customer's 
non transaction account, rather than a transaction account, for deposits 
made to the customer's transaction account, the bank may place such a 
hold only to the extent that the funds held do not exceed the amount of 
the deposit and the length of the hold does not exceed the time periods 
permitted by this regulation.
    3. These restrictions also apply to holds placed on funds in a 
customer's account (as defined in Sec. 229.2(a)) if a customer cashes a 
check at a bank (other than a check drawn on that bank) over the 
counter. The regulation does not prohibit holds that may be placed on 
other funds of the customer for checks cashed over the counter, to the 
extent that the transaction does not involve a deposit to an account. A 
bank may not, however, place a hold on any account when an ``on us'' 
check is cashed over the counter. ``On us'' checks are considered 
finally paid when cashed (see U.C.C. 4-215(a)(1)).

             F. 229.19(f)  Employee Training and Compliance

    1. The Act requires banks to take such actions as may be necessary 
to inform fully each employee that performs duties subject to the Act of 
the requirements of the Act, and to establish and maintain procedures 
reasonably designed to assure and monitor employee compliance with such 
requirements.
    2. This paragraph requires a bank to establish procedures to ensure 
compliance with these requirements and provide these procedures to the 
employees responsible for carrying them out.

               G. 229.19(g)  Effect of Merger Transaction

    1. After banks merge, there is often a period of adjustment before 
their operations are consolidated. This paragraph accommodates this 
adjustment period by allowing merged banks to be treated as separate 
banks for purposes of this subpart for a period of up to one year after 
consummation of the merger transaction, except that a customer of any 
bank that is a party to the transaction that has an established account 
with that bank may not be treated as a new account holder for any other 
party to the transaction for purposes of the new account exception of 
Sec. 229.13(a), and a deposit in any branch of the merged bank is 
considered deposited in the bank for purposes of the availability 
schedules in accordance with Sec. 229.19(a).
    2. This rule affects the status of the combined entity in several 
areas. For example, this rule would affect when an ATM is a proprietary 
ATM (Sec. 229.2(aa) and Sec. 229.12(b)) and when a check is considered 
drawn on a branch of the depositary bank (Sec. 229.10(c)(1)(vi)).
    3. Merger transaction is defined in Sec. 229.2(t).

               XIV. Section 229.20  Relation to State Law

                        A. 229.20(a)  In General

    1. Several states have enacted laws that govern when banks in those 
states must make funds available to their customers. The Act provides 
that any state law in effect on September 1, 1989, that provides that 
funds be made available in a shorter period of time than provided in 
this regulation, will supersede the time periods in the Act and the 
regulation. The Conference Report on the Act clarifies this provision by 
stating that any state law enacted on or before September 1, 1989, may 
supersede federal law to the extent that the law relates to the time 
funds must be made available for withdrawal. H.R. Rep. No. 261, 100th 
Cong. 1st Sess. at 182 (1987).
    2. Thus, if a state had wished to adopt a law governing funds 
availability, it had to have made that law effective on or before 
September 1, 1989. Laws adopted after that date do not supersede federal 
law, even if they provide for shorter availability periods than are 
provided under federal law. If a state that had a law governing funds 
availability in effect before September 1, 1989, amended its law after 
that date, the amendment would not supersede federal law, but an 
amendment deleting a state requirement would be effective.
    3. If a state provides for a shorter hold for a certain category of 
checks than is provided for under federal law, that state requirement

[[Page 516]]

will supersede the federal provision. For example, most state laws base 
some hold periods on whether the check being deposited is drawn on an 
in-state or out-of-state bank. If a state contains more than one check 
processing region, the state's hold period for in-state checks may be 
shorter than the federal maximum hold period for nonlocal checks. Thus, 
the state schedule would supersede the federal schedule to the extent 
that it applies to in-state, nonlocal checks.
    4. The Act also provides that any state law that provides for 
availability in a shorter period of time than required by federal law is 
applicable to all federally insured institutions in that state, 
including federally chartered institutions. If a state law provides 
shorter availability only for deposits in accounts in certain categories 
of banks, such as commercial banks, the superseding state law continues 
to apply only to those categories of banks, rather than to all federally 
insured banks in the state.

              B. 229.20(b)  Preemption of Inconsistent Law

    1. This paragraph reflects the statutory provision that other 
provisions of state law that are inconsistent with federal law are 
preempted. Preemption does not require a determination by the Board to 
be effective.

                 C. 229.20(c)  Standards for Preemption

    1. This section describes the standards the Board uses in making 
determinations on whether federal law will preempt state laws governing 
funds availability. A provision of state law is considered inconsistent 
with federal law if it permits a depositary bank to make funds available 
to a customer in a longer period of time than the maximum period 
permitted by the Act and this regulation. For example, a state law that 
permits a hold of four business days or longer for local checks permits 
a hold that is longer than that permitted under the Act and this 
regulation, and therefore is inconsistent and preempted. State 
availability schedules that provide for availability in a shorter period 
of time than required under Regulation CC supersede the federal 
schedule.
    2. Under a state law, some categories of deposits could be available 
for withdrawal sooner or later than the time required by this subpart, 
depending on the composition of the deposit. For example, the Act and 
this regulation (Sec. 229.10(c)(1)(vii)) require next-day availability 
for the first $100 of the aggregate deposit of local or nonlocal checks 
on any day, and a state law could require next-day availability for any 
check of $100 or less that is deposited. Under the Act and this 
regulation, if either one $150 check or three $50 checks are deposited 
on a given day, $100 must be made available for withdrawal on the next 
business day, and $50 must be made available in accordance with the 
local or nonlocal schedule. Under the state law, however, the two 
deposits would be subject to different availability rules. In the first 
case, none of the proceeds of the deposit would be subject to next-day 
availability; in the second case, the entire proceeds of the deposit 
would be subject to next-day availability. In this example, because the 
state law would, in some situations, permit a hold longer than the 
maximum permitted by the Act, this provision of state law is 
inconsistent and preempted in its entirety.
    3. In addition to the differences between state and federal 
availability schedules, a number of state laws contain exceptions to the 
state availability schedules that are different from those provided 
under the Act and this regulation. The state exceptions continue to 
apply only in those cases where the state schedule is shorter than or 
equal to the federal schedule, and then only up to the limit permitted 
by the Regulation CC schedule. Where a deposit is subject to a state 
exception under a state schedule that is not preempted by Regulation CC 
and is also subject to a federal exception, the hold on the deposit 
cannot exceed the hold permissible under the federal exception in 
accordance with Regulation CC. In such cases, only one exception notice 
is required, in accordance with Sec. 229.13(g). This notice need only 
include the applicable federal exception as the reason the exception was 
invoked. For those categories of checks for which the state schedule is 
preempted by the federal schedule, only the federal exceptions may be 
used.
    4. State laws that provide maximum availability periods for 
categories of deposits that are not covered by the Act would not be 
preempted. Thus, state funds availability laws that apply to funds in 
time and savings deposits are not affected by the Act or this 
regulation. In addition, the availability schedules of several states 
apply to ``items'' deposited to an account. The term items may encompass 
deposits, such as nonnegotiable instruments, that are not subject to the 
Regulation CC availability schedules. Deposits that are not covered by 
Regulation CC continue to be subject to the state availability 
schedules. State laws that provide maximum availability periods for 
categories of institutions that are not covered by the Act also would 
not be preempted. For example, a state law that governs money market 
mutual funds would not be affected by the Act or this regulation.
    5. Generally, state rules governing the disclosure or notice of 
availability policies applicable to accounts also are preempted, if they 
are different from the federal rules. Nevertheless, a state law 
requiring disclosure of funds availability policies that apply to 
deposits other than ``accounts,'' such as savings or time deposits, are 
not inconsistent with the Act and this subpart. Banks in

[[Page 517]]

these states would have to follow the state disclosure rules for these 
deposits.

                 D. 229.20(d)  Preemption Determinations

    1. The Board may issue preemption determinations upon the request of 
an interested party in a state. The determinations will relate only to 
the provisions of Subparts A and B; generally the Board will not issue 
individual preemption determinations regarding the relation of state 
U.C.C. provisions to the requirements of Subpart C.

         E. 229.20(e)  Procedures for Preemption Determinations

    1. This provision sets forth the information that must be included 
in a request by an interested party for a preemption determination by 
the Board.

                   XV. Section 229.21  Civil Liability

                      A. 229.21(a)  Civil Liability

    1. This paragraph sets forth the statutory penalties for failure to 
comply with the requirements of this subpart. These penalties apply to 
provisions of state law that supersede provisions of this regulation, 
such as requirements that funds deposited in accounts at banks be made 
available more promptly than required by this regulation, but they do 
not apply to other provisions of state law. (See Commentary to 
Sec. 229.20.)

                    B. 229.21(b)  Class Action Awards

    1. This paragraph sets forth the provision in the Act concerning the 
factors that should be considered by the court in establishing the 
amount of a class action award.

                     C. 229.21(c)  Bona Fide Errors

    1. A bank is shielded from liability under this section for a 
violation of a requirement of this subpart if it can demonstrate, by a 
preponderance of the evidence, that the violation resulted from a bona 
fide error and that it maintains procedures designed to avoid such 
errors. For example, a bank may make a bona fide error if it fails to 
give next-day availability on a check drawn on the Treasury because the 
bank's computer system malfunctions in a way that prevents the bank from 
updating its customer's account; or if it fails to identify whether a 
payable-through check is a local or nonlocal check despite procedures 
designed to make this determination accurately.

                        D. 229.21(d) Jurisdiction

    1. The Act confers subject matter jurisdiction on courts of 
competent jurisdiction and provides a time limit for civil actions for 
violations of this subpart.

                 E. 229.21(e)  Reliance on Board Rulings

    1. This provision shields banks from civil liability if they act in 
good faith in reliance on any rule, regulation, model form, notice, or 
clause (if the disclosure actually corresponds to the bank's 
availability policy), or interpretation of the Board, even if it were 
subsequently determined to be invalid. Banks may rely on this 
Commentary, which is issued as an official Board interpretation, as well 
as on the regulation itself.

                        F. 229.21(f)  Exclusions

    1. This provision clarifies that liability under this section does 
not apply to violations of the requirements of Subpart C of this 
regulation, or to actions for wrongful dishonor of a check by a paying 
bank's customer.

                     G. 229.21(g)  Record Retention

    1. Banks must keep records to show compliance with the requirements 
of this subpart for at least two years. This record retention period is 
extended in the case of civil actions and enforcement proceedings. 
Generally, a bank is not required to retain records showing that it 
actually has given disclosures or notices required by this subpart to 
each customer, but it must retain evidence demonstrating that its 
procedures reasonably ensure the customers' receipt of the required 
disclosures and notices. A bank must, however, retain a copy of each 
notice provided pursuant to its use of the reasonable cause exception 
under Sec. 229.13(g) as well as a brief description of the facts giving 
rise to the availability of that exception.

  XVI. Section 229.30 Paying Bank's Responsibility for Return of Checks

                     A. 229.30(a)  Return of Checks

    1. This section requires a paying bank (which, for purposes of 
Subpart C, may include a payable-through and payable-at bank; see 
Sec. 229.2(z)) that determines not to pay a check to return the check 
expeditiously. Generally, a check is returned expeditiously if the 
return process is as fast as the forward collection process. This 
paragraph provides two standards for expeditious return, the ``two-day/
four-day'' test, and the ``forward collection'' test.
    2. Under the ``two-day/four-day'' test, if a check is returned such 
that it would normally be received by the depositary bank two business 
days after presentment where both the paying and depositary banks are 
located in the same check processing region or four business days after 
presentment where the paying and depositary banks are not located in the 
same check processing region, the check is considered returned 
expeditiously. In certain limited cases, however, these times are 
shorter than the time it

[[Page 518]]

would normally take a forward collection check deposited in the paying 
bank and payable by the depositary bank to be collected. Therefore, the 
Board has included a ``forward collection'' test, whereby a check is 
nonetheless considered to be returned expeditiously if the paying bank 
uses transportation methods and banks for return comparable to those 
used for forward collection checks, even if the check is not received by 
the depositary banks within the two-day or four-day period.
    3. Two-day/four-day test.
    a. Under the first test, a paying bank must return the check so that 
the check would normally be received by the depositary bank within 
specified times, depending on whether or not the paying and depositary 
banks are located in the same check processing region.
    b. Where both banks are located in the same check processing region, 
a check is returned expeditiously if it is returned to the depositary 
bank by 4:00 p.m. (local time of the depositary bank) of the second 
business day after the banking day on which the check was presented to 
the paying bank. For example, a check presented on Monday to a paying 
bank must be returned to a depositary bank located in the same check 
processing region by 4 p.m. on Wednesday. For a paying bank that is 
located in a different check processing region than the depositary bank, 
the deadline to complete return is 4 p.m. (local time of the depositary 
bank) of the fourth business day after the banking day on which the 
check was presented to the paying bank. For example, a check presented 
to such a paying bank on Monday must be returned to the depositary bank 
by 4:00 p.m. on Friday.
    c. This two-day/four-day test does not necessarily require actual 
receipt of the check by the depositary bank within these times. Rather, 
the paying bank must send the check so that the check would normally be 
received by the depositary bank within the specified time. Thus, the 
paying bank is not responsible for unforeseeable delays in the return of 
the check, such as transportation delays.
    d. Often, returned checks will be delivered to the depositary bank 
together with forward collection checks. Where the last day on which a 
check could be delivered to a depositary bank under this two-day/four-
day test is not a banking day for the depositary bank, a returning bank 
might not schedule delivery of forward collection checks to the 
depositary bank on that day. Further, the depositary bank may not 
process checks on that day. Consequently, if the last day of the time 
limit is not a banking day for the depositary bank, the check may be 
delivered to the depositary bank before the close of the depositary 
bank's next banking day and the return will still be considered 
expeditious. Ordinarily, this extension of time will allow the returned 
checks to be delivered with the next shipment of forward collection 
checks destined for the depositary bank.
    e. The times specified in this two-day/four-day test are based on 
estimated forward collection times, but take into account the particular 
difficulties that may be encountered in handling returned checks. It is 
anticipated that the normal process for forward collection of a check 
coupled with these return requirements will frequently result in the 
return of checks before the proceeds of nonlocal checks, other than 
those covered by Sec. 229.10(c), must be made available for withdrawal.
    f. Under this two-day/four-day test, no particular means of 
returning checks is required, thus providing flexibility to paying banks 
in selecting means of return. The Board anticipates that paying banks 
will often use returning banks (see Sec. 229.31) as their agents to 
return checks to depositary banks. A paying bank may rely on the 
availability schedule of the returning bank it uses in determining 
whether the returned check would ``normally'' be returned within the 
required time under this two-day/four-day test, unless the paying bank 
has reason to believe that these schedules do not reflect the actual 
time for return of a check.
    4. Forward collection test.
    a. Under the second, ``forward collection,'' test, a paying bank 
returns a check expeditiously if it returns a check by means as swift as 
the means similarly situated banks would use for the forward collection 
of a check drawn on the depositary bank.
    b. Generally, the paying bank would satisfy the ``forward 
collection'' test if it uses a transportation method and collection path 
for return comparable to that used for forward collection, provided that 
the returning bank selected to process the return agrees to handle the 
returned check under the standards for expeditious return for returning 
banks under Sec. 229.31(a). This test allows many paying banks a simple 
means of expeditious return of checks and takes into account the longer 
time for return that will be required by banks that do not have ready 
access to direct courier transportation.
    c. The paying bank's normal method of sending a check for forward 
collection would not be expeditious, however, if it is materially slower 
than that of other banks of similar size and with similar check handling 
activity in its community.
    d. Under the ``forward collection'' test, a paying bank must handle, 
route, and transport a returned check in a manner designed to be at 
least as fast as a similarly situated bank would collect a forward 
collection check (1) of similar amount, (2) drawn on the depositary 
bank, and (3) received for deposit by a branch of the paying bank or a 
similarly situated bank by noon on the banking

[[Page 519]]

day following the banking day of presentment of the returned check.
    e. This test refers to similarly situated banks to indicate a 
general community standard. In the case of a paying bank (other than a 
Federal Reserve Bank), a similarly situated bank is a bank of similar 
asset size, in the same community, and with similar check handling 
activity as the paying bank. (See Sec. 229.2(ee).) A paying bank has 
similar check handling activity to other banks that handle similar 
volumes of checks for collection.
    f. Under the forward collection test, banks that use means of 
handling returned checks that are less efficient than the means used by 
similarly situated banks must improve their procedures. On the other 
hand, a bank with highly efficient means of collecting checks drawn on a 
particular bank, such as a direct presentment of checks to a bank in a 
remote community, is not required to use that means for returned checks, 
i.e. direct return, if similarly situated banks do not present checks 
directly to that depositary bank.
    5. Examples.
    a. If a check is presented to a paying bank on Monday and the 
depositary bank and the paying bank are participants in the same 
clearinghouse, the paying bank should arrange to have the returned check 
received by the depositary bank by Wednesday. This would be the same day 
the paying bank would deliver a forward collection check to the 
depositary bank if the paying bank received the deposit by noon on 
Tuesday.
    b. i. If a check is presented to a paying bank on Monday and the 
paying bank would normally collect checks drawn on the depositary bank 
by sending them to a correspondent or a Federal Reserve Bank by courier, 
the paying bank could send the returned check to its correspondent or 
Federal Reserve Bank, provided that the correspondent has agreed to 
handle returned checks expeditiously under Sec. 229.31(a). (All Federal 
Reserve Banks agree to handle returned checks expeditiously.)
    ii. The paying bank must deliver the returned check to the 
correspondent or Federal Reserve Bank by the correspondent's or Federal 
Reserve Bank's appropriate cut-off hour. The appropriate cut-off hour is 
the cut-off hour for returned checks that corresponds to the cut-off 
hour for forward collection checks drawn on the depositary bank that 
would normally be used by the paying bank or a similarly situated bank. 
A returned check cut-off hour corresponds to a forward collection cut-
off hour if it provides for the same or faster availability for checks 
destined for the same depositary banks.
    iii. In this example, delivery to the correspondent or a Federal 
Reserve Bank by the appropriate cut-off hour satisfies the paying bank's 
duty, even if use of the correspondent or Federal Reserve Bank is not 
the most expeditious means of returning the check. Thus, a paying bank 
may send a local returned check to a correspondent instead of a Federal 
Reserve Bank, even if the correspondent then sends the returned check to 
a Federal Reserve Bank the following day as a qualified returned check. 
Where the paying bank delivers forward collection checks by courier to 
the correspondent or the Federal Reserve Bank, mailing returned checks 
to the correspondent or Federal Reserve Bank would not satisfy the 
forward collection test.
    iv. If a paying bank ordinarily mails its forward collection checks 
to its correspondent or Federal Reserve Bank in order to avoid the costs 
of a courier delivery, but similarly situated banks use a courier to 
deliver forward collection checks to their correspondent or Federal 
Reserve Bank, the paying bank must send its returned checks by courier 
to meet the forward collection test.
    c. If a paying bank normally sends its forward collection checks 
directly to the depositary bank, which is located in another community, 
but similarly situated banks send forward collection checks drawn on the 
depositary bank to a correspondent or a Federal Reserve Bank, the paying 
bank would not have to send returned checks directly to the depositary 
bank, but could send them to a correspondent or a Federal Reserve Bank.
    d. The dollar amount of the returned check has a bearing on how it 
must be returned. If the paying bank and similarly situated banks 
present large-dollar checks drawn on the depositary bank directly to the 
depositary bank, but use a Federal Reserve Bank or a correspondent to 
collect small-dollar checks, generally the paying bank would be required 
to send its large-dollar returns directly to the depositary bank (or 
through a returning bank, if the checks are returned as quickly), but 
could use a Federal Reserve Bank or a correspondent for its small-dollar 
returns.
    6. Choice of returning bank. In meeting the requirements of the 
forward collection test, the paying bank is responsible for its own 
actions, but not for those of the depositary bank or returning banks. 
(This is analogous to the responsibility of collecting banks under 
U.C.C. 4-202(c).) For example, if the paying bank starts the return of 
the check in a timely manner but return is delayed by a returning bank 
(including delay to create a qualified returned check), generally the 
paying bank has met its requirements. (See Sec. 229.38.) If, however, 
the paying bank selects a returning bank that the paying bank should 
know is not capable of meeting its return requirements, the paying bank 
will not have met its obligation of exercising ordinary care in 
selecting intermediaries to return the check. The paying bank is free to

[[Page 520]]

use a method of return, other than its method of forward collection, as 
long as the alternate method results in delivery of the returned check 
to the depositary bank as quickly as the forward collection of a check 
drawn on the depositary bank or, where the returning bank takes a day to 
create a qualified returned check under Sec. 229.31(a), one day later 
than the forward collection time. If a paying bank returns a check on 
its banking day of receipt without settling for the check, as permitted 
under U.C.C. 4-302(a), and receives settlement for the returned check 
from a returning bank, it must promptly pay the amount of the check to 
the collecting bank from which it received the check.
    7. Qualified returned checks. Although paying banks may wish to 
prepare qualified returned checks because they will be handled at a 
lower cost by returning banks, the one business day extension provided 
to returning banks is not available to paying banks because of the 
longer time that a paying bank has to dispatch the check. Normally, 
paying banks will be able to convert a check to a qualified returned 
check at any time after the determination is made to return the check 
until late in the day following presentment, while a returning bank may 
receive returned checks late on one day and be expected to dispatch them 
early the next morning.
    8. Routing of returned checks.
    a. In effect, under either test, the paying bank acts as an agent or 
subagent of the depositary bank in selecting a means of return. Under 
Sec. 229.30(a), a paying bank is authorized to route the returned check 
in a variety of ways:
    i. It may send the returned check directly to the depositary bank by 
courier or other means of delivery, bypassing returning banks; or
    ii. It may send the returned check to any returning bank agreeing to 
handle the returned check for expeditious return to the depositary bank 
under Sec. 229.31(a), regardless of whether or not the returning bank 
handled the check for forward collection.
    b. If the paying bank elects to return the check directly to the 
depositary bank, it is not necessarily required to return the check to 
the branch of first deposit. The check may be returned to the depositary 
bank at any location permitted under Sec. 229.32(a).
    9. Midnight deadline.
    a. Except for the extension permitted by Sec. 229.30(c), discussed 
below, this section does not relieve a paying bank from the requirement 
for timely return (i.e., midnight deadline) under U.C.C. 4-301 and 4-
302, which continue to apply. Under U.C.C. 4-302, a paying bank is 
``accountable'' for the amount of a demand item, other than a 
documentary draft, if it does not pay or return the item or send notice 
of dishonor by its midnight deadline. Under U.C.C. 3-418(c) and 4-
215(a), late return constitutes payment and would be final in favor of a 
holder in due course or a person who has in good faith changed his 
position in reliance on the payment. Thus, retaining this requirement 
gives the paying bank an additional incentive to make a prompt return.
    b. The expeditious return requirement applies to a paying bank that 
determines not to pay a check. This requirement applies to a payable-
through or a payable-at bank that is defined as a paying bank (see 
Sec. 229.2(z)) and that returns a check. This requirement begins when 
the payable-through or payable-at bank receives the check during forward 
collection, not when the payor returns the check to the payable-through 
or payable-at bank. Nevertheless, a check sent for payment or collection 
to a payable-through or payable-at bank is not considered to be drawn on 
that bank for purposes of the midnight deadline provision of U.C.C. 4-
301. (See discussion of Sec. 229.36(a).)
    c. The liability section of this subpart (Sec. 229.38) provides that 
a paying bank is not subject to both ``accountability'' for missing the 
midnight deadline under the U.C.C. and liability for missing the 
timeliness requirements of this regulation. Also, a paying bank is not 
responsible for failure to make expeditious return to a party that has 
breached a presentment warranty under U.C.C. 4-208, notwithstanding that 
the paying bank has returned the check. (See Commentary to 
Sec. 229.33(a).)
    10. U.C.C. provisions affected. This paragraph directly affects the 
following provisions of the U.C.C., and may affect other sections or 
provisions:
    a. Section 4-301(d), in that instead of returning a check through a 
clearinghouse or to the presenting bank, a paying bank may send a 
returned check to the depositary bank or to a returning bank.
    b. Section 4-301(a), in that time limits specified in that section 
may be affected by the additional requirement to make an expeditious 
return and in that settlement for returned checks is made under 
Sec. 229.31(c), not by revocation of settlement.

              B. 229.30(b)  Unidentifiable Depositary Bank

    1. In some cases, a paying bank will be unable to identify the 
depositary bank through the use of ordinary care and good faith. The 
Board expects that these cases will be unusual as skilled return clerks 
will readily identify the depositary bank from the depositary bank 
indorsement required under Sec. 229.35 and Appendix D. In cases where 
the paying bank is unable to identify the depositary bank, the paying 
bank may, in accordance with Sec. 229.30(a), send the returned check to 
a returning bank that agrees to handle the returned check for 
expeditious return to

[[Page 521]]

the depositary bank under Sec. 229.31(a). The returning bank may be 
better able to identify the depositary bank.
    2. In the alternative, the paying bank may send the check back up 
the path used for forward collection of the check. The presenting bank 
and prior collecting banks normally will be able to trace the collection 
path of the check through the use of their internal records in 
conjunction with the indorsements on the returned check. In these 
limited cases, the paying bank may send such a returned check to any 
bank that handled the check for forward collection, even if that bank 
does not agree to handle the returned check for expeditious return to 
the depositary bank under Sec. 229.31(a). A paying bank returning a 
check under this paragraph to a bank that has not agreed to handle the 
check expeditiously must advise that bank that it is unable to identify 
the depositary bank. This advice must be conspicuous, such as a stamp on 
each check for which the depositary bank is unknown if such checks are 
commingled with other returned checks, or, if such checks are sent in a 
separate cash letter, by one notice on the cash letter. This information 
will warn the bank that this check will require special research and 
handling in accordance with Sec. 229.31(b). The returned check may not 
be prepared for automated return. The return of a check to a bank that 
handled the check for forward collection is consistent with 
Sec. 229.35(b), which requires a bank handling a check to take up the 
check it is has not been paid.
    3. The sending of a check to a bank that handled the check for 
forward collection under this paragraph is not subject to the 
requirements for expeditious return by the paying bank. Often, the 
paying bank will not have courier or other expeditious means of 
transportation to the collecting or presenting bank. Although the lack 
of a requirement of expeditious return will create risks for the 
depositary bank, in many cases the inability to identify the depositary 
bank will be due to the depositary bank's, or a collecting bank's, 
failure to use the indorsement required by Sec. 229.35(a) and Appendix 
D. If the depositary bank failed to use the proper indorsement, it 
should bear the risks of less than expeditious return. Similarly, where 
the inability to identify the depositary bank is due to indorsements or 
other information placed on the back of the check by the depositary 
bank's customer or other prior indorser, the depositary bank should bear 
the risk that it cannot charge a returned check back to that customer. 
Where the inability to identify the depositary bank is due to subsequent 
indorsements of collecting banks, these collecting banks may be liable 
for a loss incurred by the depositary bank due to less than expeditious 
return of a check; those banks therefore have an incentive to return 
checks sent to them under this paragraph quickly.
    4. This paragraph does not relieve a paying bank from the liability 
for the lack of expeditious return in cases where the paying bank is 
itself responsible for the inability to identify the depositary bank, 
such as when the paying bank's customer has used a check with printing 
or other material on the back in the area reserved for the depositary 
bank's indorsement, making the indorsement unreadable. (See 
Sec. 229.38(d).)
    5. A paying bank's return under this paragraph is also subject to 
its midnight deadline under U.C.C. 4-301, Regulation J (if the check is 
returned through a Federal Reserve Bank), and the exception provided in 
Sec. 229.30(c). A paying bank also may send a check to a prior 
collecting bank to make a claim against that bank under Sec. 229.35(b) 
where the depositary bank is insolvent or in other cases as provided in 
Sec. 229.35(b). Finally, a paying bank may make a claim against a prior 
collecting bank based on a breach of warranty under U.C.C. 4-208.

                   C. 229.30(c)  Extension of Deadline

    1. This paragraph permits extension of the deadlines for returning a 
check for which the paying bank previously has settled (generally 
midnight of the banking day following the banking day on which the check 
is received by the paying bank) and for returning a check without 
settling for it (generally midnight of the banking day on which the 
check is received by the paying bank, or such other time provided by 
Sec. 210.9 of Regulation J (12 CFR part 210) or Sec. 229.36(f)(2) of 
this part), but not of the duty of expeditious return, in two 
circumstances:
    a. A paying bank may have a courier that leaves after midnight (or 
after any other applicable deadline) to deliver its forward collection 
checks. This paragraph removes the constraint of the deadline for 
returned checks if the returned check reaches either the depositary bank 
or the returning bank to which it is sent on that bank's banking day 
following the expiration of the applicable deadline. The extension also 
applies if the check reaches the bank to which it is sent later than the 
close of that bank's banking day, if highly expeditious means of 
transportation are used. For example, a West Coast paying bank may use 
this further extension to ship a returned check by air courier directly 
to an East Coast depositary bank even if the check arrives after the 
close of the depositary bank's banking day.
    b. A paying bank may observe a banking day, as defined in the 
applicable U.C.C., on a Saturday, which is not a business day and 
therefore not a banking day under Regulation CC. In such a case, the 
U.C.C. deadline for returning checks received and settled for on Friday, 
or for returning checks received on Saturday without settling for them,

[[Page 522]]

might require the bank to return the checks by midnight Saturday. 
However, the bank may not have couriers leaving on Saturday to carry 
returned checks, and even if it did, the returning or depositary bank to 
which the returned checks were sent might not be open until Sunday night 
or Monday morning to receive and process the checks. This paragraph 
extends the midnight deadline if the returned checks reach the returning 
bank by a cut-off hour (usually on Sunday night or Monday morning) that 
permits processing during its next processing cycle or reach the 
depositary bank by the cut-off hour on its next banking day following 
the Saturday midnight deadline.
    2. The time limits that are extended in each case are the paying 
bank's midnight deadline for returning a check for which it has already 
settled and the paying bank's deadline for returning a check without 
settling for it in U.C.C. 4-301 and 4-302, Secs. 210.9 and 210.12 of 
Regulation J (12 CFR 210.9 and 210.12), and Sec. 229.36(f)(2) of this 
part. As these extensions are designed to speed (Sec. 229.30(c)(1)), or 
at least not slow (Sec. 229.30(c)(2)), the overall return of checks, no 
modification or extension of the expeditious return requirements in 
Sec. 229.30(a) is required.
    3. The paying bank satisfies its midnight or other return deadline 
by dispatching returned checks to another bank by courier, including a 
courier under contract with the paying bank, prior to expiration of the 
deadline.
    4. This paragraph directly affects U.C.C. 4-301 and 4-302 and 
Secs. 210.9 and 210.12 of Regulation J (12 CFR 210.9 and 210.12) to the 
extent that this paragraph applies by its terms, and may affect other 
provisions.

             D. 229.30(d)  Identification of Returned Check

    1. Most paying banks currently use some form of stamp on a returned 
check indicating the reason for return. This paragraph makes this 
practice mandatory. No particular form of stamp is required, but the 
stamp must indicate the reason for return. A check is identified as a 
returned check by a reason for return stamp, even though the stamp does 
not specifically state that the check is a returned check. A reason such 
as ``Refer to Maker'' is permissible in appropriate cases. If the paying 
bank places the returned check in a carrier envelope, the carrier 
envelope should indicate that it is a returned check, but need not 
repeat the reason for return stated in the check if it in fact appears 
on the check.

             E. 229.30(e)  Depositary Bank Without Accounts

    1. Subpart B of this regulation applies only to ``checks'' deposited 
in transaction-type ``accounts.'' Thus, a depositary bank with only time 
or savings accounts need not comply with the availability requirements 
of Subpart B. Collecting banks will not have couriers delivering checks 
to these banks as paying banks, because no checks are drawn on them. 
Consequently, the costs of using a courier or other expedited means to 
deliver returned checks directly to such a depositary bank may not be 
justified. Thus, the expedited return requirement of Sec. 229.30(a) and 
the notice of nonpayment requirement of Sec. 229.33 do not apply to 
checks being returned to banks that do not hold accounts. The paying 
bank's midnight deadline in U.C.C. 4-301 and 4-302 and Sec. 210.12 of 
Regulation J (12 CFR 210.12) would continue to apply to these checks. 
Returning banks also would be required to act on such checks within 
their midnight deadline. Further, in order to avoid complicating the 
process of returning checks generally, banks without accounts are 
required to use the standard indorsement, and their checks are returned 
by returning banks and paid for by the depositary bank under the same 
rules as checks deposited in other banks, with the exception of the 
expeditious return and notice of nonpayment requirements of 
Secs. 229.30(a), 229.31(a), and 229.33.
    2. The expeditious return requirements also apply to a check 
deposited in a bank that is not a depository institution. Federal 
Reserve Banks, Federal Home Loan Banks, private bankers, and possibly 
certain industrial banks are not depository institutions within the 
meaning of the Act, and therefore are not subject to the expedited 
availability and disclosure requirements of Subpart B. These banks do, 
however, maintain accounts as defined in Sec. 229.2(a), and a paying 
bank returning a check to one of these banks would be required to return 
the check to the depositary bank, in accordance with the requirements of 
this section.

                 F. 229.30(f)  Notice in Lieu of Return

    1. A check that is lost or otherwise unavailable for return may be 
returned by sending a legible copy of both sides of the check or, if 
such a copy is not available to the paying bank, a written notice of 
nonpayment containing the information specified in Sec. 229.33(b). The 
copy or written notice must clearly indicate it is a notice in lieu of 
return and must be handled in the same manner as other returned checks. 
Notice by telephone, telegraph, or other electronic transmission, other 
than a legible facsimile or similar image transmission of both sides of 
the check, does not satisfy the requirements for a notice in lieu of 
return. The requirement for a writing and the indication that the notice 
is a substitute for the returned check is necessary so that the 
returning and depositary banks are informed that the notice carries 
value. Notice in lieu of return is

[[Page 523]]

permitted only when a bank does not have and cannot obtain possession of 
the check or must retain possession of the check for protest. A check is 
not unavailable for return if it is merely difficult to retrieve from a 
filing system or from storage by a keeper of checks in a truncation 
system. A notice in lieu of return may be used by a bank handling a 
returned check that has been lost or destroyed, including when the 
original returned check has been charged back as lost or destroyed as 
provided in Sec. 229.35(b). A bank using a notice in lieu of return 
gives a warranty under Sec. 229.34(a)(4) that the original check has not 
been and will not be returned.
    2. The requirement of this paragraph supersedes the requirement of 
U.C.C. 4-301(a) as to the form and information required of a notice of 
dishonor or nonpayment. Reference in the regulation and this commentary 
to a returned check includes a notice in lieu of return unless the 
context indicates otherwise.
    3. The notice in lieu of return is subject to the provisions of 
Sec. 229.30 and is treated like a returned check for settlement 
purposes. If the original check is over $2,500, the notice of nonpayment 
under Sec. 229.33 is still required, but may be satisfied by the notice 
in lieu of return if the notice in lieu meets the time and information 
requirements of Sec. 229.33.
    4. If not all of the information required by Sec. 229.33(b) is 
available, the paying bank may make a claim against any prior bank 
handling the check as provided in Sec. 229.35(b).

                G. 229.30(g)  Reliance on Routing Number

    1. Although Sec. 229.35 and Appendix D require that the depositary 
bank indorsement contain its nine-digit routing number, it is possible 
that a returned check will bear the routing number of the depositary 
bank in fractional, nine-digit, or other form. This paragraph permits a 
paying bank to rely on the routing number of the depositary bank as it 
appears on the check (in the depositary bank's indorsement) when it is 
received by the paying bank.
    2. If there are inconsistent routing numbers, the paying bank may 
rely on any routing number designating the depositary bank. The paying 
bank is not required to resolve the inconsistency prior to processing 
the check. The paying bank remains subject to the requirement to act in 
good faith and use ordinary care under Sec. 229.38(a).

  XVII. Section 229.31  Returning Bank's Responsibility for Return of 
                                 Checks

                     A. 229.31(a)  Return of Checks

    1. The standards for return of checks established by this section 
are similar to those for paying banks in Sec. 229.30(a). This section 
requires a returning bank to return a returned check expeditiously if it 
agrees to handle the returned check for expeditious return under this 
paragraph. In effect, the returning bank is an agent or subagent of the 
paying bank and a subagent of the depositary bank for the purposes of 
returning the check.
    2. A returning bank agrees to handle a returned check for 
expeditious return to the depositary bank if it:
    a. Publishes or distributes availability schedules for the return of 
returned checks and accepts the returned check for return;
    b. Handles a returned check for return that it did not handle for 
forward collection; or
    c. Otherwise agrees to handle a returned check for expeditious 
return.
    3. Two-day/four-day test. As in the case of a paying bank, a 
returning bank's return of a returned check is expeditious if it meets 
either of two tests. Under the ``two-day/four-day'' test, the check must 
be returned so that it would normally be received by the depositary bank 
by 4:00 p.m. either two or four business days after the check was 
presented to the paying bank, depending on whether or not the paying 
bank is located in the same check processing region as the depositary 
bank. This is the same test as the two-day/four-day test applicable to 
paying banks. (See Commentary to Sec. 229.30(a).) While a returning bank 
will not have first hand knowledge of the day on which a check was 
presented to the paying bank, returning banks may, by agreement, 
allocate with paying banks liability for late return based on the delays 
caused by each. In effect, the two-day/four day test protects all paying 
and returning banks that return checks from claims that they failed to 
return a check expeditiously, where the check is returned within the 
specified time following presentment to the paying bank, or a later time 
as would result from unforeseen delays.
    4. Forward collection test.
    a. The ``forward collection'' test is similar to the forward 
collection test for paying banks. Under this test, a returning bank must 
handle a returned check in the same manner that a similarly situated 
collecting bank would handle a check of similar size drawn on the 
depositary bank for forward collection. A similarly situated bank is a 
bank (other than a Federal Reserve Bank) that is of similar asset size 
and check handling activity in the same community. A bank has similar 
check handling activity if it handles a similar volume of checks for 
forward collection as the forward collection volume of the returning 
bank.
    b. Under the forward collection test, a returning bank must accept 
returned checks, including both qualified and other returned checks 
(``raw returns''), at approximately the same times and process them 
according to the same general schedules as checks handled for forward 
collection. Thus, a returning bank generally must process even raw 
returns on an overnight basis, unless its time limit is extended by one 
day to convert a raw return to a qualified returned check.

[[Page 524]]

    5. Cut-off hours. A returning bank may establish earlier cut-off 
hours for receipt of returned checks than for receipt of forward 
collection checks, but the cut-off hour for returned checks may not be 
earlier than 2:00 p.m. The returning bank also may set different sorting 
requirements for returned checks than those applicable to other checks. 
Thus, a returning bank may allow itself more processing time for returns 
than for forward collection checks. All returned checks received by a 
cut-off hour for returned checks must be processed and dispatched by the 
returning bank by the time that it would dispatch forward collection 
checks received at a corresponding forward collection cut-off hour that 
provides for the same or faster availability for checks destined for the 
same depositary banks.
    6. Examples.
    a. If a returning bank receives a returned check by its cut-off hour 
for returned checks on Monday and the depositary bank and the returning 
bank are participants in the same clearinghouse, the returning bank 
should arrange to have the returned check received by the depositary 
bank by Tuesday. This would be the same day that it would deliver a 
forward collection check drawn on the depositary bank and received by 
the returning bank at a corresponding forward collection cut-off hour on 
Monday.
    b. i. If a returning bank receives a returned check, and the 
returning bank normally would collect a forward collection check drawn 
on the depositary bank by sending the forward collection check to a 
correspondent or a Federal Reserve Bank by courier, the returning bank 
could send the returned check in the same manner if the correspondent 
has agreed to handle returned checks expeditiously under Sec. 229.31(a). 
The returning bank would have to deliver the check by the 
correspondent's or Federal Reserve Bank's cut-off hour for returned 
checks that corresponds to its cut-off hour for forward collection 
checks drawn on the depositary bank. A returning bank may take a day to 
convert a check to a qualified returned check. Where the forward 
collection checks are delivered by courier, mailing the returned checks 
would not meet the duty established by this section for returning banks.
    ii. A returning bank must return a check to the depositary bank by 
courier or other means as fast as a courier, if similarly situated 
returning banks use couriers to deliver their forward collection checks 
to the depositary bank.
    iii. For some depositary banks, no community practice exists as to 
delivery of checks. For example, a credit union whose customers use 
payable-through drafts normally does not have checks presented to it 
because the drafts are normally sent to the payable-through bank for 
collection. In these circumstances, the community standard is 
established by taking into account the dollar volume of the checks being 
sent to the depositary bank and the location of the depositary bank, and 
determining whether similarly situated banks normally would deliver 
forward collection checks to the depositary bank, taking into account 
the particular risks associated with returned checks. Where the 
community standard does not require courier delivery, other means of 
delivery, including mail, are acceptable.
    7. Qualified returned checks.
    a. The expeditious return requirement for a returning bank in this 
regulation is more stringent in many cases than the duty of a collecting 
bank to exercise ordinary care under U.C.C. 4-202 in returning a check. 
A returning bank is under a duty to act as expeditiously in returning a 
check as it would in the forward collection of a check. Notwithstanding 
its duty of expeditious return, its midnight deadline under U.C.C. 4-202 
and Sec. 210.12(a) of Regulation J (12 CFR 210.12(a)), under the forward 
collection test, a returning bank may take an extra day to qualify a 
returned check. A qualified returned check will be handled by subsequent 
returning banks more efficiently than a raw return. This paragraph gives 
a returning bank an extra business day beyond the time that would 
otherwise be required to return the returned check to convert a returned 
check to a qualified returned check. The qualified returned check must 
include the routing number of the depositary bank, the amount of the 
check, and a return identifier encoded on the check in magnetic ink.
    b. If the returning bank is sending the returned check directly to 
the depositary bank, this extra day is not available because preparing a 
qualified returned check will not expedite handling by other banks. If 
the returning bank makes an encoding error in creating a qualified 
returned check, it may be liable under Sec. 229.38 for losses caused by 
any negligence. The returning bank would not lose the one-day extension 
available to it for creating a qualified returned check because of an 
encoding error.
    8. Routing of returned check.
    a. Under Sec. 229.31(a), the returning bank is authorized to route 
the returned check in a variety of ways:
    i. It may send the returned check directly to the depositary bank by 
courier or other expeditious means of delivery; or
    ii. It may send the returned check to any returning bank agreeing to 
handle the returned check for expeditious return to the depositary bank 
under this section regardless of whether or not the returning bank 
handled the check for forward collection.
    b. If the returning bank elects to send the returned check directly 
to the depositary bank, it is not required to send the check to the 
branch of the depositary bank that first

[[Page 525]]

handled the check. The returned check may be sent to the depositary bank 
at any location permitted under Sec. 229.32(a).
    9. Responsibilities of returning bank. In meeting the requirements 
of this section, the returning bank is responsible for its own actions, 
but not those of the paying bank, other returning banks, or the 
depositary bank. (See U.C.C. 4-202(c) regarding the responsibility of 
collecting banks.) For example, if the paying bank has delayed the start 
of the return process, but the returning bank acts in a timely manner, 
the returning bank may satisfy the requirements of this section even if 
the delayed return results in a loss to the depositary bank. (See 
Sec. 229.38.) A returning bank must handle a notice in lieu of return as 
expeditiously as a returned check.
    10. U.C.C. sections affected. This paragraph directly affects the 
following provisions of the U.C.C., and may affect other sections or 
provisions:
    a. Section 4-202(b), in that time limits required by that section 
may be affected by the additional requirement to make an expeditious 
return.
    b. Section 4-214(a), in that settlement for returned checks is made 
under Sec. 229.31(c) and not by charge-back of provisional credit, and 
in that the time limits may be affected by the additional requirement to 
make an expeditious return.

              B. 229.31(b)  Unidentifiable Depositary Bank

    1. This section is similar to Sec. 229.30(b), but applies to 
returning banks instead of paying banks. In some cases a returning bank 
will be unable to identify the depositary bank with respect to a check. 
Returning banks agreeing to handle checks for return to depositary banks 
under Sec. 229.31(a) are expected to be expert in identifying depositary 
bank indorsements. In the limited cases where the returning bank cannot 
identify the depositary bank, the returning bank may send the returned 
check to a returning bank that agrees to handle the returned check for 
expeditious return under Sec. 229.31(a), or it may send the returned 
check to a bank that handled the check for forward collection, even if 
that bank does not agree to handle the returned check expeditiously 
under Sec. 229.31(a).
    2. If the returning bank itself handled the check for forward 
collection, it may send the returned check to a collecting bank that was 
prior to it in the forward collection process, which will be better able 
to identify the depositary bank. If there are no prior collecting banks, 
the returning bank must research the collection of the check and 
identify the depositary bank. As in the case of paying banks under 
Sec. 229.30(b), a returning bank's sending of a check to a bank that 
handled the check for forward collection under Sec. 229.31(b) is not 
subject to the expeditious return requirements of Sec. 229.31(a).
    3. The returning bank's return of a check under this paragraph is 
subject to the midnight deadline under U.C.C. 4-202(b). (See definition 
of returning bank in Sec. 229.2(cc).)
    4. Where a returning bank receives a check that it does not agree to 
handle expeditiously under Sec. 229.31(a), such as a check sent to it 
under Sec. 229.30(b), but the returning bank is able to identify the 
depositary bank, the returning bank must thereafter return the check 
expeditiously to the depositary bank. The returning bank returns a check 
expeditiously under this paragraph if it returns the check by the same 
means it would use to return a check drawn on it to the depositary bank 
or by other reasonably prompt means.
    5. As in the case of a paying bank returning a check under 
Sec. 229.30(b), a returning bank returning a check under this paragraph 
to a bank that has not agreed to handle the check expeditiously must 
advise that bank that it is unable to identify the depositary bank. This 
advice must be conspicuous, such as a stamp on each check for which the 
depositary bank is unknown if such checks are commingled with other 
returned checks, or, if such checks are sent in a separate cash letter, 
by one notice on the cash letter. The returned check may not be prepared 
for automated return.

                        C. 229.31(c)  Settlement

    1. Under the U.C.C., a collecting bank receives settlement for a 
check when it is presented to the paying bank. The paying bank may 
recover the settlement when the paying bank returns the check to the 
presenting bank. Under this regulation, however, the paying bank may 
return the check directly to the depositary bank or through returning 
banks that did not handle the check for forward collection. On these 
more efficient return paths, the paying bank does not recover the 
settlement made to the presenting bank. Thus, this paragraph requires 
the returning bank to settle for a returned check (either with the 
paying bank or another returning bank) in the same way that it would 
settle for a similar check for forward collection. To achieve 
uniformity, this paragraph applies even if the returning bank handled 
the check for forward collection.
    2. Any returning bank, including one that handled the check for 
forward collection, may provide availability for returned checks 
pursuant to an availability schedule as it does for forward collection 
checks. These settlements by returning banks, as well as settlements 
between banks made during the forward collection of a check, are 
considered final when made subject to any deferment of availability. 
(See Sec. 229.36(d) and Commentary to Sec. 229.35(b).)
    3. A returning bank may vary the settlement method it uses by 
agreement with paying banks or other returning banks. Special rules 
apply in the case of insolvency of

[[Page 526]]

banks. (See Sec. 229.39.) If payment cannot be obtained from a 
depositary or returning bank because of its insolvency or otherwise, 
recovery can be had by returning, paying, and collecting banks from 
prior banks on this basis of the liability of prior banks under 
Sec. 229.35(b).
    4. This paragraph affects U.C.C. 4-214(a) in that a paying or 
collecting bank does not ordinarily have a right to charge back against 
the bank from which it received the returned check, although it is 
entitled to settlement if it returns the returned check to that bank, 
and may affect other sections or provisions. Under Sec. 229.36(d), a 
bank collecting a check remains liable to prior collecting banks and the 
depositary bank's customer under the U.C.C.

                          D. 229.31(d)  Charges

    1. This paragraph permits any returning bank, even one that handled 
the check for forward collection, to impose a fee on the paying bank or 
other returning bank for its service in handling a returned check. Where 
a claim is made under Sec. 229.35(b), the bank on which the claim is 
made is not authorized by this paragraph to impose a charge for taking 
up a check. This paragraph preempts state laws to the extent that these 
laws prevent returning banks from charging fees for handling returned 
checks.

             E. 229.31(e)  Depositary Bank Without Accounts

    1. This paragraph is similar to Sec. 229.30(e) and relieves a 
returning bank of its obligation to make expeditious return to a 
depositary bank that does not maintain any accounts. (See the Commentary 
to Sec. 229.30(e).)

                 F. 229.31(f)  Notice in Lieu of Return

    1. This paragraph is similar to Sec. 229.30(f) and authorizes a 
returning bank to originate a notice in lieu of return if the returned 
check is unavailable for return. Notice in lieu of return is permitted 
only when a bank does not have and cannot obtain possession of the check 
or must retain possession of the check for protest. A check is not 
unavailable for return if it is merely difficult to retrieve from a 
filing system or from storage by a keeper of checks in a truncation 
system. (See the Commentary to Sec. 229.30(f).)

                G. 229.31(g)  Reliance on Routing Number

    1. This paragraph is similar to Sec. 229.30(g) and permits a 
returning bank to rely on routing numbers appearing on a returned check 
such as routing numbers in the depositary bank's indorsement or on 
qualified returned checks. (See the Commentary to Sec. 229.30(g).)

  XVIII. Section 229.32  Depositary Bank's Responsibility for Returned 
                                 Checks

               A. 229.32(a)  Acceptance of Returned Checks

    1. This regulation seeks to encourage direct returns by paying and 
returning banks and may result in a number of banks sending checks to 
depositary banks with no preexisting arrangements as to where the 
returned checks should be delivered. This paragraph states where the 
depositary bank is required to accept returned checks and written 
notices of nonpayment under Sec. 229.33. (These locations differ from 
locations at which a depositary bank must accept electronic notices.) It 
is derived from U.C.C. 3-111, which specifies that presentment for 
payment may be made at the place specified in the instrument or, if 
there is none, at the place of business of the party to pay. In the case 
of returned checks, the depositary bank does not print the check and can 
only specify the place of ``payment'' of the returned check in its 
indorsement.
    2. The paragraph specifies four locations at which the depositary 
bank must accept returned checks:
    a. The depositary bank must accept returned checks at any location 
at which it requests presentment of forward collection checks such as a 
processing center. A depositary bank does not request presentment of 
forward collection checks at a branch of the bank merely by paying 
checks presented over the counter.
    b. i. If the depositary bank indorsement states the name and address 
of the depositary bank, it must accept returned checks at the branch, 
head office, or other location, such as a processing center, indicated 
by the address. If the address is too general to identify a particular 
location, then the depositary bank must accept returned checks at any 
branch or head office consistent with the address. If, for example, the 
address is ``New York, New York,'' each branch in New York City must 
accept returned checks.
    ii. If no address appears in the depositary bank's indorsement, the 
depositary bank must accept returned checks at any branch or head office 
associated with the depositary bank's routing number. The offices 
associated with the routing number of a bank are found in American 
Bankers Association Key to Routing Numbers, published by Thomson 
Financial Publishing Inc., which lists a city and state address for each 
routing number.
    iii. The depositary bank must accept returned checks at the address 
in its indorsement and at an address associated with its routing number 
in the indorsement if the written address in the indorsement and the 
address associated with the routing number in the indorsement are not in 
the same check processing region. Under Secs. 229.30(g) and 229.31(g), a 
paying or returning bank may rely on the depositary bank's routing

[[Page 527]]

number in its indorsement in handling returned checks and is not 
required to send returned checks to an address in the depositary bank's 
indorsement that is not in the same check processing region as the 
address associated with the routing number in the indorsement.
    iv. If no routing number or address appears in its indorsement, the 
depositary bank must accept a returned check at any branch or head 
office of the bank. The indorsement requirement of Sec. 229.35 and 
Appendix D requires that the indorsement contain a routing number, a 
name, and a location. Consequently, this provision, as well as paragraph 
(a)(2)(ii) of this section, only applies where the depositary bank has 
failed to comply with the indorsement requirement.
    3. For ease of processing, a depositary bank may require that 
returning or paying banks returning checks to it separate returned 
checks from forward collection checks being presented.
    4. Under Sec. 229.33(d), a depositary bank receiving a returned 
check or notice of nonpayment must send notice to its customer by its 
midnight deadline or within a longer reasonable time.

                          B. 229.32(b)  Payment

    1. As discussed in the commentary to Sec. 229.31(c), under this 
regulation a paying or returning bank does not obtain credit for a 
returned check by charge-back but by, in effect, presenting the returned 
check to the depositary bank. This paragraph imposes an obligation to 
``pay'' a returned check that is similar to the obligation to pay a 
forward collection check by a paying bank, except that the depositary 
bank may not return a returned check for which it is the depositary 
bank. Also, certain means of payment, such as remittance drafts, may be 
used only with the agreement of the returning bank.
    2. The depositary bank must pay for a returned check by the close of 
the banking day on which it received the returned check. The day on 
which a returned check is received is determined pursuant to U.C.C. 4-
108, which permits the bank to establish a cut-off hour, generally not 
earlier than 2:00 p.m., and treat checks received after that hour as 
being received on the next banking day. If the depositary bank is unable 
to make payment to a returning or paying bank on the banking day that it 
receives the returned check, because the returning or paying bank is 
closed for a holiday or because the time when the depositary bank 
received the check is after the close of Fedwire, e.g., west coast banks 
with late cut-off hours, payment may be made on the next banking day of 
the bank receiving payment.
    3. Payment must be made so that the funds are available for use by 
the bank returning the check to the depositary bank on the day the check 
is received by the depositary bank. For example, a depositary bank meets 
this requirement if it sends a wire transfer of funds to the returning 
or paying bank on the day it receives the returned check, even if the 
returning or paying bank has closed for the day. A wire transfer should 
indicate the purpose of the payment.
    4. The depositary bank may use a net settlement arrangement to 
settle for a returned check. Banks with net settlement agreements could 
net the appropriate credits and debits for returned checks with the 
accounting entries for forward collection checks if they so desired. If, 
for purposes of establishing additional controls or for other reasons, 
the banks involved desired a separate settlement for returned checks, a 
separate net settlement agreement could be established.
    5. The bank sending the returned check to the depositary bank may 
agree to accept payment at a later date if, for example, it does not 
believe that the amount of the returned check or checks warrants the 
costs of same-day payment. Thus, a returning or paying bank may agree to 
accept payment through an ACH credit or debit transfer that settles the 
day after the returned check is received instead of a wire transfer that 
settles on the same day.
    6. This paragraph and this subpart do not affect the depositary 
bank's right to recover a provisional settlement with its nonbank 
customer for a check that is returned. (See also Secs. 229.19(c)(2)(ii), 
229.33(d) and 229.35(b).)

                 C. 229.32(c)  Misrouted Returned Checks

    1. This paragraph permits a bank receiving a check on the basis that 
it is the depositary bank to send the misrouted returned check to the 
correct depositary bank, if it can identify the correct depositary bank, 
either directly or through a returning bank agreeing to handle the check 
expeditiously under Sec. 229.30(a). In these cases, the bank receiving 
the check is acting as a returning bank. Alternatively, the bank 
receiving the misrouted returned check must send the check back to the 
bank from which it was received. In either case the bank to which the 
returned check was misrouted could receive settlement for the check. The 
depositary bank would be required to pay for the returned check under 
Sec. 229.32(b), and any other bank to which the check is sent under this 
paragraph would be required to settle for the check as a returning bank 
under Sec. 229.31(c). If the check was originally received ``free,'' 
that is, without a charge for the check, the bank incorrectly receiving 
the check would have to return the check, without a charge, to the bank 
from which it came. The bank to which the returned check was misrouted 
is required to act promptly but is not required to meet the expeditious 
return requirements of Sec. 229.31(a); however, it must act within its 
midnight deadline. This paragraph does not affect a bank's duties under 
Sec. 229.35(b).

[[Page 528]]

                          D. 229.32(d)  Charges

    1. This paragraph prohibits a depositary bank from charging the 
equivalent of a presentment fee for returned checks. A returning bank, 
however, may charge a fee for handling returned checks. If the returning 
bank receives a mixed cash letter of returned checks, which includes 
some checks for which the returning bank also is the depositary bank, 
the fee may be applied to all the returned checks in the cash letter. In 
the case of a sorted cash letter containing only returned checks for 
which the returning bank is the depositary bank, however, no fee may be 
charged.

                XIX. Section 229.33  Notice of Nonpayment

                        A. 229.33(a)  Requirement

    1. Notice of nonpayment as required by this section and written 
notice in lieu of return as provided in Secs. 229.30(f) and 229.31(f) 
serve different functions. The two kinds of notice, however, must meet 
the content requirements of this section. The paying bank must send a 
notice of nonpayment if it decides not to pay a check of $2,500 or more. 
A paying bank may rely on an amount encoded on the check in magnetic ink 
to determine whether the check is in the amount of $2,500 or more. The 
notice of nonpayment carries no value, and the check itself (or the 
notice in lieu of return) must be returned. The paying bank must ensure 
that the notice of nonpayment is received by the depositary bank by 4:00 
p.m. local time on the second business day following presentment. A bank 
identified by routing number as the paying bank is considered the paying 
bank under this regulation and would be required to create a notice of 
nonpayment even though that bank determined that the check was not drawn 
by a customer of that bank. (See Commentary to the definition of paying 
bank in Sec. 229.2(z).)
    2. The paying bank should not send a notice of nonpayment until it 
has finally determined not to pay the check. Under Sec. 229.34(b), by 
sending the notice the paying bank warrants that it has returned or will 
return the check. If a paying bank sends a notice and subsequently 
decides to pay the check, the paying bank may mitigate its liability on 
this warranty by notifying the depositary bank that the check has been 
paid.
    3. Because the return of the check itself may serve as the required 
notice of nonpayment, in many cases no notice other than the return of 
the check will be necessary. For example, in many cases the return of a 
check through a clearinghouse to another participant of the 
clearinghouse will be made in time to meet the time requirements of this 
section. If the check normally will not be received by the depositary 
bank within the time limits for notice, the return of the check will not 
satisfy the notice requirement. In determining whether the returned 
check will satisfy the notice requirement, the paying bank may rely on 
the availability schedules of returning banks as the time that the 
returned check is expected to be delivered to the depositary bank, 
unless the paying bank has reason to know the availability schedules are 
inaccurate.
    4. Unless the returned check is used to satisfy the notice 
requirement, the requirement for notice is independent of and does not 
affect the requirements for timely and expeditious return of the check 
under Sec. 229.30 and the U.C.C. (See Sec. 229.30(a).) If a paying bank 
fails both to comply with this section and to comply with the 
requirements for timely and expeditious return under Sec. 229.30 and the 
U.C.C. and Regulation J (12 CFR part 210), the paying bank shall be 
liable under either this section or such other requirements, but not 
both. (See Sec. 229.38(b).) A paying bank is not responsible for failure 
to give notice of nonpayment to a party that has breached a presentment 
warranty under U.C.C. 4-208, notwithstanding that the paying bank may 
have returned the check. (See U.C.C. 4-208 and 4-302.)

                    B. 229.33(b)  Content of Notices

    1. This paragraph provides that the notice must at a minimum contain 
eight elements which are specifically enumerated. In the case of written 
notices, the name and routing number of the depositary bank also are 
required.
    2. If the paying bank cannot identify the depositary bank from the 
check itself, it may wish to send the notice to the earliest collecting 
bank it can identify and indicate that the notice is not being sent to 
the depositary bank. The collecting bank may be able to identify the 
depositary bank and forward the notice, but is under no duty to do so. 
In addition, the collecting bank may actually be the depositary bank.

                   C. 229.33(c)  Acceptance of Notice

    1. In the case of a written notice, the depositary bank is required 
to accept notices at the locations specified in Sec. 229.32(a). In the 
case of telephone notices, the bank may not refuse to accept notices at 
the telephone numbers identified in this section, but may transfer calls 
or use a recording device. Banks may vary by agreement the location and 
manner in which notices are received.

                 D. 229.33(d)  Notification to Customer

    1. This paragraph requires a depositary bank to notify its customer 
of nonpayment upon receipt of a returned check or notice of nonpayment, 
regardless of the amount of the check or notice. This requirement is 
similar to the requirement under the U.C.C. as interpreted in Appliance 
Buyers Credit Corp. v.

[[Page 529]]

Prospect National Bank, 708 F.2d 290 (7th Cir. 1983), that a depositary 
bank may be liable for damages incurred by its customer for its failure 
to give its customer timely advice that it has received a notice of 
nonpayment. Notice also must be given if a depositary bank receives a 
notice of recovery under Sec. 229.35(b). The notice to the customer 
required under this paragraph also may satisfy the notice requirement of 
Sec. 229.13(g) if the depositary bank invokes the reasonable cause 
exception of Sec. 229.13(e) due to the receipt of a notice of 
nonpayment, provided the notice meets the other requirements of 
Sec. 229.13(g).

                     XX. Section 229.34  Warranties

                A. 229.34(a)  Warranty of Returned Check

    1. This paragraph includes warranties that a returned check, 
including a notice in lieu of return, was returned by the paying bank, 
or in the case of a check payable by a bank and payable through another 
bank, the bank by which the check is payable, within the deadline under 
the U.C.C., Regulation J, or Sec. 229.30(c); that the paying or 
returning bank is authorized to return the check; that the returned 
check has not been materially altered; and that, in the case of a notice 
in lieu of return, the original check has not been and will not be 
returned for payment. (See the Commentary to Sec. 229.30(f).) The 
warranty does not include a warranty that the bank complied with the 
expeditious return requirements of Secs. 229.30(a) and 229.31(a). These 
warranties do not apply to checks drawn on the United States Treasury, 
to U.S. Postal Service money orders, or to checks drawn on a state or a 
unit of general local government that are not payable through or at a 
bank. (See Sec. 229.42.)

             B. 229.34(b)  Warranty of Notice of Nonpayment

    1. This paragraph provides for warranties for notices of nonpayment. 
This warranty does not include a warranty that the notice is accurate 
and timely under Sec. 229.33. The requirements of Sec. 229.33 that are 
not covered by the warranty are subject to the liability provisions of 
Sec. 229.38. These warranties are designed to give the depositary bank 
more confidence in relying on notices of nonpayment. This paragraph 
imposes liability on a paying bank that gives notice of nonpayment and 
then subsequently returns the check. (See Commentary on Sec. 229.33(a).)

    C. 229.34(c)  Warranty of Settlement Amount, Encoding, and Offset

    1. Paragraph (c)(1) provides that a bank that presents and receives 
settlement for checks warrants to the paying bank that the settlement it 
demands (e.g., as noted on the cash letter) equals the total amount of 
the checks it presents. This paragraph gives the paying bank a warranty 
claim against the presenting bank for the amount of any excess 
settlement made on the basis of the amount demanded, plus expenses. If 
the amount demanded is understated, a paying bank discharges its 
settlement obligation under U.C.C. 4-301 by paying the amount demanded, 
but remains liable for the amount by which the demand is understated; 
the presenting bank is nevertheless liable for expenses in resolving the 
adjustment.
    2. When checks or returned checks are transferred to a collecting, 
returning, or depositary bank, the transferor bank is not required to 
demand settlement, as is required upon presentment to the paying bank. 
However, often the checks or returned checks will be accompanied by 
information (such as a cash letter listing) that will indicate the total 
of the checks or returned checks. Paragraph (c)(2) provides that if the 
transferor bank includes information indicating the total amount of 
checks or returned checks transferred, it warrants that the information 
is correct (i.e., equals the actual total of the items).
    3. Paragraph (c)(3) provides that a bank that presents or transfers 
a check or returned check warrants the accuracy of the magnetic ink 
encoding that was placed on the item after issue, and that exists at the 
time of presentment or transfer, to any bank that subsequently handles 
the check or returned check. Under U.C.C. 4-209(a), only the encoder (or 
the encoder and the depositary bank, if the encoder is a customer of the 
depositary bank) warrants the encoding accuracy, thus any claims on the 
warranty must be directed to the encoder. Paragraph (c)(3) expands on 
the U.C.C. by providing that all banks that transfer or present a check 
or returned check make the encoding warranty. In addition, under the 
U.C.C., the encoder makes the warranty to subsequent collecting banks 
and the paying bank, while paragraph (c)(3) provides that the warranty 
is made to banks in the return chain as well.
    4. A paying bank that settles for an overstated cash letter because 
of a misencoded check may make a warranty claim against the presenting 
bank under paragraph (c)(1) (which would require the paying bank to show 
that the check was part of the overstated cash letter) or an encoding 
warranty claim under paragraph (c)(3) against the presenting bank or any 
preceding bank that handled the misencoded check.
    5. Paragraph (c)(4) provides that the paying bank may set off any 
excess settlement made against settlement owed to the presenting bank 
for checks presented subsequently.

                          D. 229.34(d)  Damages

    1. This paragraph adopts for the warranties in Sec. 229.34 (a), (b), 
and (c) the damages provided in U.C.C. 4-207(c) and 4A-506(b). (See

[[Page 530]]

definition of interest compensation in Sec. 229.2(oo).)

                     E. 229.34(e)  Tender of Defense

    1. This paragraph adopts for this regulation the vouching-in 
provisions of U.C.C. 3-119.

                    XXI. Section 229.35  Indorsements

                   A. 229.35(a)  Indorsement Standards

    1. This section and Appendix D require banks to use a standard form 
of indorsement when indorsing checks during the forward collection and 
return process. The standard provides for indorsements by all collecting 
and returning banks, plus a unique standard for depositary bank 
indorsements. It is designed to facilitate the identification of the 
depositary bank and the prompt return of checks. The regulation places a 
duty on banks to ensure that their indorsements are legible. The 
indorsement standard specifies the information each indorsement must 
contain and its location and ink color.
    2. The indorsement standard requires that the nine-digit routing 
number of the depositary bank be wholly contained in an area on the back 
of the check from 3.0 inches from the leading edge to 1.5 inches from 
the trailing edge of the check. This permits banks to use encoding 
equipment that measures from either the leading or trailing edge of the 
check to place indorsements in this area. The standard does not require 
that the entire depositary bank indorsement be contained within the 
specified area, but checks will be handled most efficiently if 
depositary banks place as much information as possible within the 
designated area to ensure that the information is protected from being 
overstamped by subsequent indorsements. The location requirement for 
subsequent collecting bank indorsements (not including returning bank 
indorsements) limits these indorsements to the area on the back of the 
check from the leading edge to 3.0 inches from the leading edge of the 
check. The area from the trailing edge of the check to 1.5 inches from 
the trailing edge is commonly used for the payee indorsement.
    3. The standard requires depositary banks to use either purple or 
black ink. The Board encourages depositary banks to indorse checks in 
purple ink where possible, because use of a unique ink color will 
facilitate the speedy identification of the depositary bank. Black ink, 
however, may be used when use of purple ink is not feasible, such as 
where a bank uses the same equipment to apply both depositary bank and 
subsequent collecting bank indorsements, and the equipment has only one 
source of ink.
    4. The standard requires subsequent collecting banks to use an ink 
color other than purple for their indorsements. The standard also 
requires the depositary bank's indorsement to include its nine-digit 
routing number set off by arrows, the bank's name and location, and the 
indorsement date, and permits the indorsement to include other 
identifying information.
    5. The standard does not include the fractional routing number for 
depositary banks; however, a bank may include its fractional routing 
number or repeat its nine-digit routing number in its indorsement. If a 
depositary bank includes its routing number in its indorsement more than 
once, paying and returning banks will be able to identify the depositary 
bank more readily. Depositary banks should not include information that 
can be confused with required information. For example, a nine-digit zip 
code could be confused with the nine-digit routing number.
    6. A depositary bank is not required to place a street address in 
its indorsement; however, a bank may want to put an address in its 
indorsement in order to limit the number of locations at which it must 
accept returned checks. In instances where this address is not 
consistent with the routing number in the indorsement, the depositary 
bank is required to accept returned checks at a branch or head office 
consistent with the routing number. Banks should note, however, that 
Sec. 229.32 requires a depositary bank to accept returned checks at the 
location(s) it accepts forward collection checks. The inclusion of a 
depositary bank's telephone number where it would receive notices of 
large-dollar returns in its indorsements is optional.
    7. Under the U.C.C., a specific guarantee of prior indorsement is 
not necessary. (See U.C.C. 4-207(a) and 4-208(a).) Use of guarantee 
language in indorsements, such as ``P.E.G.'' (``prior endorsements 
guaranteed''), may result in reducing the type size used in bank 
indorsements, thereby making them more difficult to read. Use of this 
language may make it more difficult for other banks to identify the 
depositary bank. Subsequent collecting bank indorsements may not include 
this language.
    8. The standard for returning banks requires a returning bank to 
apply an indorsement that avoids the area on the back of the check from 
3.0 inches from the leading edge of the check to the trailing edge--the 
area reserved for the payee and depositary bank indorsements. Returning 
bank indorsements may differ from subsequent collecting bank 
indorsements. The use of various methods to process returns using a 
variety of equipment also may cause returning bank indorsements to vary 
substantially in form, content, and placement on the check. Thus, a 
returning bank indorsement may be on the face of the check or on the 
back of the check. A returning bank indorsement may not be in purple 
ink. No content requirements have been adopted for the returning bank 
indorsement.

[[Page 531]]

    9. If the bank maintaining the account into which a check is 
deposited agrees with another bank (a correspondent, ATM operator, or 
lock box operator) to have the other bank accept returns and notices of 
nonpayment for the bank of account, the indorsement placed on the check 
as the depositary bank indorsement may be the indorsement of the bank 
that acts as correspondent, ATM operator, or lock box operator as 
provided in paragraph (d) of this section.
    10. The backs of many checks bear pre-printed information or blacked 
out areas for various reasons. For example, some checks are printed with 
a carbon band across the back that allows the transfer of information 
from the check to a ledger with one writing. Also, contracts or loan 
agreements are printed on certain checks. Other checks that are mailed 
to recipients may contain areas on the back that are blacked out so that 
they may not be read through the mailer. On the deposit side, the payee 
of the check may place its indorsement or information identifying the 
drawer of the check in the area specified for the depositary bank 
indorsement, thus making the depositary bank indorsement unreadable.
    11. The indorsement standard does not prohibit the use of a carbon 
band or other printed or written matter on the backs of checks and does 
not require banks to avoid placing their indorsements in these areas. 
Nevertheless, checks will be handled more efficiently if depositary 
banks design indorsement stamps so that the nine-digit routing number 
avoids the carbon band area. Indorsing parties other than banks, e.g., 
corporations, will benefit from the faster return of checks if they 
protect the identifiability and legibility of the depositary bank 
indorsement by staying clear of the area reserved for the depositary 
bank indorsement.
    12. Section 229.38(d) allocates responsibility for loss resulting 
from a delay in return of a check due to indorsements that are 
unreadable because of material on the back of the check. The depositary 
bank is responsible for a loss resulting from a delay in return caused 
by the condition of the check arising after its issuance until its 
acceptance by the depositary bank that made the depositary bank's 
indorsement illegible. The paying bank is responsible for loss resulting 
from a delay in return caused by indorsements that are not readable 
because of other material on the back of the check at the time that it 
was issued. Depositary and paying banks may shift these risks to their 
customers by agreement.
    13. The standard does not require the paying bank to indorse the 
check; however, if a paying bank does indorse a check that is returned, 
it should follow the indorsement standard for returning banks. The 
standard requires collecting and returning banks to indorse the check 
for tracing purposes.

             B. 229.35(b)  Liability of Bank Handling Check

    1. When a check is sent for forward collection, the collection 
process results in a chain of indorsements extending from the depositary 
bank through any subsequent collecting banks to the paying bank. This 
section extends the indorsement chain through the paying bank to the 
returning banks, and would permit each bank to recover from any prior 
indorser if the claimant bank does not receive payment for the check 
from a subsequent bank in the collection or return chain. For example, 
if a returning bank returned a check to an insolvent depositary bank, 
and did not receive the full amount of the check from the failed bank, 
the returning bank could obtain the unrecovered amount of the check from 
any bank prior to it in the collection and return chain including the 
paying bank. Because each bank in the collection and return chain could 
recover from a prior bank, any loss would fall on the first collecting 
bank that received the check from the depositary bank. To avoid circuity 
of actions, the returning bank could recover directly from the first 
collecting bank. Under the U.C.C., the first collecting bank might 
ultimately recover from the depositary bank's customer or from the other 
parties on the check.
    2. Where a check is returned through the same banks used for the 
forward collection of the check, priority during the forward collection 
process controls over priority in the return process for the purpose of 
determining prior and subsequent banks under this regulation.
    3. Where a returning bank is insolvent and fails to pay the paying 
bank or a prior returning bank for a returned check, Sec. 229.39(a) 
requires the receiver of the failed bank to return the check to the bank 
that transferred the check to the failed bank. That bank then either 
could continue the return to the depositary bank or recover based on 
this paragraph. Where the paying bank is insolvent, and fails to pay the 
collecting bank, the collecting bank also could recover from a prior 
collecting bank under this paragraph, and the bank from which it 
recovered could in turn recover from its prior collecting bank until the 
loss settled on the depositary bank (which could recover from its 
customer).
    4. A bank is not required to make a claim against an insolvent bank 
before exercising its right to recovery under this paragraph. Recovery 
may be made by charge-back or by other means. This right of recovery 
also is permitted even where nonpayment of the check is the result of 
the claiming bank's negligence such as failure to make expeditious 
return, but the claiming bank remains liable for its negligence under 
Sec. 229.38.

[[Page 532]]

    5. This liability is imposed on a bank handling a check for 
collection or return regardless of whether the bank's indorsement 
appears on the check. Notice must be sent under this paragraph to a 
prior bank from which recovery is sought reasonably promptly after a 
bank learns that it did not receive payment from another bank, and 
learns the identity of the prior bank. Written notice reasonably 
identifying the check and the basis for recovery is sufficient if the 
check is not available. Receipt of notice by the bank against which the 
claim is made is not a precondition to recovery by charge-back or other 
means; however, a bank may be liable for negligence for failure to 
provide timely notice. A paying or returning bank also may recover from 
a prior collecting bank as provided in Secs. 229.30(b) and 229.31(b). 
This provision is not a substitute for a paying or returning bank making 
expeditious return under Secs. 229.30(a) or 229.31(b). This paragraph 
does not affect a paying bank's accountability for a check under U.C.C. 
4-215(a) and 4-302. Nor does this paragraph affect a collecting bank's 
accountability under U.C.C. 4-213 and 4-215(d). A collecting bank 
becomes accountable upon receipt of final settlement as provided in the 
foregoing U.C.C. sections. The term final settlement in Secs. 229.31 
(c), 229.32 (b), and 229.36(d) is intended to be consistent with the use 
of the term final settlement in the U.C.C. (e.g., U.C.C. 4-213, 4-214, 
and 4-215). (See also Sec. 229.2(cc) and Commentary.)
    6. This paragraph also provides that a bank may have the rights of a 
holder based on the handling of the check for collection or return. A 
bank may become a holder or a holder in due course regardless of whether 
prior banks have complied with the indorsement standard in 
Sec. 229.35(a) and Appendix D.
    7. This paragraph affects the following provisions of the U.C.C., 
and may affect other provisions:
    a. Section 4-214(a), in that the right to recovery is not based on 
provisional settlement, and recovery may be had from any prior bank. 
Section 4-214(a) would continue to permit a depositary bank to recover a 
provisional settlement from its customer. (See Sec. 229.33(d).)
    b. Section 3-415 and related provisions (such as section 3-503), in 
that such provisions would not apply as between banks, or as between the 
depositary bank and its customer.

                    C. 229.35(c)  Indorsement by Bank

    1. This section protects the rights of a customer depositing a check 
in a bank without requiring the words ``pay any bank,'' as required by 
the U.C.C. (See U.C.C. 4-201(b).) Use of this language in a depositary 
bank's indorsement will make it more difficult for other banks to 
identify the depositary bank. The indorsement standard in Appendix D 
prohibits such material in subsequent collecting bank indorsements. The 
existence of a bank indorsement provides notice of the restrictive 
indorsement without any additional words.

              D. 229.35(d)  Indorsement for Depositary Bank

    1. This section permits a depositary bank to arrange with another 
bank to indorse checks. This practice may occur when a correspondent 
indorses for a respondent, or when the bank servicing an ATM or lock box 
indorses for the bank maintaining the account in which the check is 
deposited--i.e., the depositary bank. If the indorsing bank applies the 
depositary bank's indorsement, checks will be returned to the depositary 
bank. If the indorsing bank does not apply the depositary bank's 
indorsement, by agreement with the depositary bank it may apply its own 
indorsement as the depositary bank indorsement. In that case, the 
depositary bank's own indorsement on the check (if any) should avoid the 
location reserved for the depositary bank. The actual depositary bank 
remains responsible for the availability and other requirements of 
Subpart B, but the bank indorsing as depositary bank is considered the 
depositary bank for purposes of Subpart C. The check will be returned, 
and notice of nonpayment will be given, to the bank indorsing as 
depositary bank.
    2. Because the depositary bank for Subpart B purposes will desire 
prompt notice of nonpayment, its arrangement with the indorsing bank 
should provide for prompt notice of nonpayment. The bank indorsing as 
depositary bank may require the depositary bank to agree to take up the 
check if the check is not paid even if the depositary bank's indorsement 
does not appear on the check and it did not handle the check. The 
arrangement between the banks may constitute an agreement varying the 
effect of provisions of Subpart C under Sec. 229.37.

        XXII. Section 229.36  Presentment and Issuance of Checks

           A. 229.36(a)  Payable Through and Payable at Checks

    1. For purposes of Subpart C, the regulation defines a payable-
through or payable-at bank (which could be designated the collectible-
through or collectible-at bank) as a paying bank. The requirements of 
Sec. 229.30(a) and the notice of nonpayment requirements of Sec. 229.33 
are imposed on a payable-through or payable-at bank and are based on the 
time of receipt of the forward collection check by the payable-through 
or payable-at bank. This provision is intended to speed the return of 
checks that are payable through or at a bank to the depositary bank.

[[Page 533]]

        B. 229.36(b)  Receipt at Bank Office or Processing Center

    1. This paragraph seeks to facilitate efficient presentment of 
checks to promote early return or notice of nonpayment to the depositary 
bank and clarifies the law as to the effect of presentment by routing 
number. This paragraph differs from Sec. 229.32(a) because presentment 
of checks differs from delivery of returned checks.
    2. The paragraph specifies four locations at which the paying bank 
must accept presentment of checks. Where the check is payable through a 
bank and the check is sent to that bank, the payable-through bank is the 
paying bank for purposes of this subpart, regardless of whether the 
paying bank must present the check to another bank or to a nonbank payor 
for payment.
    a. Delivery of checks may be made, and presentment is considered to 
occur, at a location (including a processing center) requested by the 
paying bank. This is the way most checks are presented by banks today. 
This provision adopts the common law rule of a number of legal decisions 
that the processing center acts as the agent of the paying bank to 
accept presentment and to begin the time for processing of the check. 
(See also U.C.C. 4-204(c).) If a bank designates different locations for 
the presentment of forward collection checks bearing different routing 
numbers, for purposes of this paragraph it requests presentment of 
checks bearing a particular routing number only at the location 
designated for receipt of forward collection checks bearing that routing 
number.
    b. i. Delivery may be made at an office of the bank associated with 
the routing number on the check. The office associated with the routing 
number of a bank is found in American Bankers Association Key to Routing 
Numbers, published by Thomson Financial Publishing Inc., which lists a 
city and state address for each routing number. Checks generally are 
handled by collecting banks on the basis of the nine-digit routing 
number encoded in magnetic ink (or on the basis of the fractional form 
routing number if the magnetic ink characters are obliterated) on the 
check, rather than the printed name or address. The definition of a 
paying bank in Sec. 229.2(z) includes a bank designated by routing 
number, whether or not there is a name on the check, and whether or not 
any name is consistent with the routing number. Where a check is payable 
by one bank, but payable through another, the routing number is that of 
the payable-through bank, not that of the payor bank. As the payor bank 
has selected the payable-through bank as the point through which 
presentment is to be made, it is proper to treat the payable-through 
bank as the paying bank for purposes of this section.
    ii. There is no requirement in the regulation that the name and 
address on the check agree with the address associated with the routing 
number on the check. A bank generally may control the use of its routing 
number, just as it does the use of its name. The address associated with 
the routing number may be a processing center.
    iii. In some cases, a paying bank may have several offices in the 
city associated with the routing number. In such case, it would not be 
reasonable or efficient to require the presenting bank to sort the 
checks by more specific branch addresses that might be printed on the 
checks, and to deliver the checks to each branch. A collecting bank 
normally would deliver all checks to one location. In cases where checks 
are delivered to a branch other than the branch on which they may be 
drawn, computer and courier communication among branches should permit 
the paying bank to determine quickly whether to pay the check.
    c. If the check specifies the name of the paying bank but no 
address, the bank must accept delivery at any office. Where delivery is 
made by a person other than a bank, or where the routing number is not 
readable, delivery will be made based on the name and address of the 
paying bank on the check. If there is no address, delivery may be made 
at any office of the paying bank. This provision is consistent with 
U.C.C. 3-111, which states that presentment for payment may be made at 
the place specified in the instrument, or, if there is none, at the 
place of business of the party to pay. Thus, there is a trade-off for a 
paying bank between specifying a particular address on a check to limit 
locations of delivery, and simply stating the name of the bank to 
encourage wider currency for the check.
    d. If the check specifies the name and address of a branch or head 
office, or other location (such as a processing center), the check may 
be delivered by delivery to that office or other location. If the 
address is too general to identify a particular office, delivery may be 
made at any office consistent with the address. For example, if the 
address is ``San Francisco, California,'' each office in San Francisco 
must accept presentment. The designation of an address on the check 
generally is in the control of the paying bank.
    3. This paragraph may affect U.C.C. 3-111 to the extent that the 
U.C.C. requires presentment to occur at a place specified in the 
instrument.

                        C. 229.36(c)  Truncation

    1. Truncation includes a variety of procedures in which the physical 
check is held or delayed by the depositary or collecting bank, and the 
information from the check is transmitted to the paying bank 
electronically. Presentment takes place when the paying bank receives 
the electronic transmission.

[[Page 534]]

This process has the potential to improve the efficiency of check 
processing, and express provision for truncation and electronic 
presentment is made in U.C.C. 4-110 and 4-406(b). This paragraph allows 
truncation by agreement with the paying bank; however, such agreement 
may not prejudice the interests of prior parties to the check. For 
example, a truncation agreement may not extend the paying bank's time 
for return. Such an extension could damage the depositary bank, which 
must make funds available to its customers under mandatory availability 
schedules.

        D. 229.36(d)  Liability of Bank During Forward Collection

    1. This paragraph makes settlement between banks during forward 
collection final when made, subject to any deferment of credit, just as 
settlements between banks during the return of checks are final. In 
addition, this paragraph clarifies that this change does not affect the 
liability scheme under U.C.C. 4-201 during forward collection of a 
check. That U.C.C. section provides that, unless a contrary intent 
clearly appears, a bank is an agent or subagent of the owner of a check, 
but that Article 4 of the U.C.C. applies even though a bank may have 
purchased an item and is the owner of it. This paragraph preserves the 
liability of a collecting bank to prior collecting banks and the 
depositary bank's customer for negligence during the forward collection 
of a check under the U.C.C., even though this paragraph provides that 
settlement between banks during forward collection is final rather than 
provisional. Settlement by a paying bank is not considered to be final 
payment for the purposes of U.C.C. 4-215(a)(2) or (3), because a paying 
bank has the right to recover settlement from a returning or depositary 
bank to which it returns a check under this subpart. Other provisions of 
the U.C.C. not superseded by this subpart, such as section 4-202, also 
continue to apply to the forward collection of a check and may apply to 
the return of a check. (See definition of returning bank in 
Sec. 229.2(cc).)

            E. 229.36(e)  Issuance of Payable Through Checks

    1. If a bank arranges for checks payable by it to be payable through 
another bank, it must require its customers to use checks that contain 
conspicuously on their face the name, location, and first four digits of 
the nine-digit routing number of the bank by which the check is payable 
and the legend ``payable through'' followed by the name and location of 
the payable-through bank. The first four digits of the nine-digit 
routing number and the location of the bank by which the check is 
payable must be associated with the same check processing region. (This 
section does not affect Sec. 229.36(b).) The required information is 
deemed conspicuous if it is printed in a type size not smaller than six-
point type and if it is contained in the title plate, which is located 
in the lower left quadrant of the check. The required information may be 
conspicuous if it is located elsewhere on the check.
    2. If a payable-through check does not meet the requirements of this 
paragraph, the bank by which the check is payable may be liable to the 
depositary bank or others as provided in Sec. 229.38. For example, a 
bank by which a payable-through check is payable could be liable to a 
depositary bank that suffers a loss, such as lost interest or liability 
under Subpart B, that would not have occurred had the check met the 
requirements of this paragraph. Similarly, a bank may be liable under 
Sec. 229.38 if a check payable by it that is not payable through another 
bank is labeled as provided in this section. For example, a bank that 
holds checking accounts and processes checks at a central location but 
has widely-dispersed branches may be liable under this section if it 
labels all of its checks as ``payable through'' a single branch and 
includes the name, address, and four-digit routing symbol of another 
branch. These checks would not be payable through another bank and 
should not be labeled as payable-through checks. (All of a bank's 
offices within the United States are considered part of the same bank; 
see Sec. 229.2(e).) In this example, the bank by which the checks are 
payable could be liable to a depositary bank that suffers a loss, such 
as lost interest or liability under Subpart B, due to the mislabeled 
check. The bank by which the check is payable may be liable for 
additional damages if it fails to act in good faith.

                    F. 229.36(f)  Same-Day Settlement

    1. This paragraph provides that, under certain conditions, a paying 
bank must settle with a presenting bank for a check on the same day the 
check is presented in order to avail itself of the ability to return the 
check on its next banking day under U.C.C. 4-301 and 4-302. This 
paragraph does not apply to checks presented for immediate payment over 
the counter. Settling for a check under this paragraph does not 
constitute final payment of the check under the U.C.C. This paragraph 
does not supersede or limit the rules governing collection and return of 
checks through Federal Reserve Banks that are contained in Subpart A of 
Regulation J (12 CFR part 210).
    2. Presentment requirements.
    a. Location and time.
    i. For presented checks to qualify for mandatory same-day 
settlement, information accompanying the checks must indicate that 
presentment is being made under this paragraph--e.g. ``these checks are 
being presented for same-day settlement''--and must

[[Page 535]]

include a demand for payment of the total amount of the checks together 
with appropriate payment instructions in order to enable the paying bank 
to discharge its settlement responsibilities under this paragraph. In 
addition, the check or checks must be presented at a location designated 
by the paying bank for receipt of checks for same-day settlement by 8:00 
a.m. local time of that location. The designated presentment location 
must be a location at which the paying bank would be considered to have 
received a check under Sec. 229.36(b). The paying bank may not designate 
a location solely for presentment of checks subject to settlement under 
this paragraph; by designating a location for the purposes of 
Sec. 229.36(f), the paying bank agrees to accept checks at that location 
for the purposes of Sec. 229.36(b).
    ii. The designated presentment location also must be within the 
check processing region consistent with the nine-digit routing number 
encoded in magnetic ink on the check. A paying bank that uses more than 
one routing number associated with a single check processing region may 
designate, for purposes of this paragraph, one or more locations in that 
check processing region at which checks will be accepted, but the paying 
bank must accept any checks with a routing number associated with that 
check processing region at each designated location. A paying bank may 
designate a presentment location for traveler's checks with an 8000-
series routing number anywhere in the country because these traveler's 
checks are not associated with any check processing region. The paying 
bank, however, must accept at that presentment location any other checks 
for which it is paying bank that have a routing number consistent with 
the check processing region of that location.
    iii. If the paying bank does not designate a presentment location, 
it must accept presentment for same-day settlement at any location 
identified in Sec. 229.36(b), i.e., at an address of the bank associated 
with the routing number on the check, at any branch or head office if 
the bank is identified on the check by name without address, or at a 
branch, head office, or other location consistent with the name and 
address of the bank on the check if the bank is identified on the check 
by name and address. A paying bank and a presenting bank may agree that 
checks will be accepted for same-day settlement at an alternative 
location (e.g., at an intercept processor located in a different check 
processing region) or that the cut-off time for same-day settlement be 
earlier or later than 8:00 a.m. local time.
    iv. In the case of a check payable through a bank but payable by 
another bank, this paragraph does not authorize direct presentment to 
the bank by which the check is payable. The requirements of same-day 
settlement under this paragraph would apply to a payable-through or 
payable-at bank to which the check is sent for payment or collection.
    b. Reasonable delivery requirements. A check is considered presented 
when it is delivered to and payment is demanded at a location specified 
in paragraph (f)(1). Ordinarily, a presenting bank will find it 
necessary to contact the paying bank to determine the appropriate 
presentment location and any delivery instructions. Further, because 
presentment might not take place during the paying bank's banking day, a 
paying bank may establish reasonable delivery requirements to safeguard 
the checks presented, such as use of a night depository. If a presenting 
bank fails to follow reasonable delivery requirements established by the 
paying bank, it runs the risk that it will not have presented the 
checks. However, if no reasonable delivery requirements are established 
or if the paying bank does not make provisions for accepting delivery of 
checks during its non-business hours, leaving the checks at the 
presentment location constitutes effective presentment.
    c. Sorting of checks. A paying bank may require that checks 
presented to it for same-day settlement be sorted separately from other 
forward collection checks it receives as a collecting bank or returned 
checks it receives as a returning or depositary bank. For example, if a 
bank provides correspondent check collection services and receives 
unsorted checks from a respondent bank that include checks for which it 
is the paying bank and that would otherwise meet the requirements for 
same-day settlement under this section, the collecting bank need not 
make settlement in accordance with paragraph (f)(2). If the collecting 
bank receives sorted checks from its respondent bank, consisting only of 
checks for which the collecting bank is the paying bank and that meet 
the requirements for same-day settlement under this paragraph, the 
collecting bank may not charge a fee for handling those checks and must 
make settlement in accordance with this paragraph.

                              3. Settlement

    a. If a bank presents a check in accordance with the time and 
location requirements for presentment under paragraph (f)(1), the paying 
bank either must settle for the check on the business day it receives 
the check without charging a presentment fee or return the check prior 
to the time for settlement. (This return deadline is subject to 
extension under Sec. 229.30(c).) The settlement must be in the form of a 
credit to an account designated by the presenting bank at a Federal 
Reserve Bank (e.g., a Fedwire transfer). The presenting bank may agree 
with the paying bank to accept settlement in another form (e.g., credit 
to an account of the presenting bank at the paying bank or debit to an 
account of

[[Page 536]]

the paying bank at the presenting bank). The settlement must occur by 
the close of Fedwire on the business day the check is received by the 
paying bank. Under the provisions of Sec. 229.34(c), a settlement owed 
to a presenting bank may be set off by adjustments for previous 
settlements with the presenting bank. (See also Sec. 229.39(d).)
    b. Checks that are presented after the 8 a.m. (local time) 
presentment deadline for same-day settlement and before the paying 
bank's cut-off hour are treated as if they were presented under other 
applicable law and settled for or returned accordingly. However, for 
purposes of settlement only, the presenting bank may require the paying 
bank to treat such checks as presented for same-day settlement on the 
next business day in lieu of accepting settlement by cash or other means 
on the business day the checks are presented to the paying bank. Checks 
presented after the paying bank's cut-off hour or on non-business days, 
but otherwise in accordance with this paragraph, are considered 
presented for same-day settlement on the next business day.

                          4. Closed Paying Bank

    a. There may be certain business days that are not banking days for 
the paying bank. Some paying banks may continue to settle for checks 
presented on these days (e.g., by opening their back office operations 
or by using an intercept processor). In other cases, a paying bank may 
be unable to settle for checks presented on a day it is closed.
    If the paying bank closes on a business day and checks are presented 
to the paying bank in accordance with paragraph (f)(1), the paying bank 
is accountable for the checks unless it settles for or returns the 
checks by the close of Fedwire on its next banking day. In addition, 
checks presented on a business day on which the paying bank is closed 
are considered received on the paying bank's next banking day for 
purposes of the U.C.C. midnight deadline (U.C.C. 4-301 and 4-302) and 
this regulation's expeditious return and notice of nonpayment 
provisions.
    b. If the paying bank is closed on a business day voluntarily, the 
paying bank must pay interest compensation, as defined in 
Sec. 229.2(oo), to the presenting bank for the value of the float 
associated with the check from the day of the voluntary closing until 
the day of settlement. Interest compensation is not required in the case 
of an involuntary closing on a business day, such as a closing required 
by state law. In addition, if the paying bank is closed on a business 
day due to emergency conditions, settlement delays and interest 
compensation may be excused under Sec. 229.38(e) or U.C.C. 4-109(b).
    5. Good faith. Under Sec. 229.38(a), both presenting banks and 
paying banks are held to a standard of good faith, defined in 
Sec. 229.2(nn) to mean honesty in fact and the observance of reasonable 
commercial standards of fair dealing. For example, designating a 
presentment location or changing presentment locations for the primary 
purpose of discouraging banks from presenting checks for same-day 
settlement might not be considered good faith on the part of the paying 
bank. Similarly, presenting a large volume of checks without prior 
notice could be viewed as not meeting reasonable commercial standards of 
fair dealing and therefore may not constitute presentment in good faith. 
In addition, if banks, in the general course of business, regularly 
agree to certain practices related to same-day settlement, it might not 
be considered consistent with reasonable commercial standards of fair 
dealing, and therefore might not be considered good faith, for a bank to 
refuse to agree to those practices if agreeing would not cause it harm.
    6. U.C.C. sections affected. This paragraph directly affects the 
following provisions of the U.C.C. and may affect other sections or 
provisions:
    a. Section 4-204(b)(1), in that a presenting bank may not send a 
check for same-day settlement directly to the paying bank, if the paying 
bank designates a different location in accordance with paragraph 
(f)(1).
    b. Section 4-213(a), in that the medium of settlement for checks 
presented under this paragraph is limited to a credit to an account at a 
Federal Reserve Bank and that, for checks presented after the deadline 
for same-day settlement and before the paying bank's cut-off hour, the 
presenting bank may require settlement on the next business day in 
accordance with this paragraph rather than accept settlement on the 
business day of presentment by cash.
    c. Section 4-301(a), in that, to preserve the ability to exercise 
deferred posting, the time limit specified in that section for 
settlement or return by a paying bank on the banking day a check is 
received is superseded by the requirement to settle for checks presented 
under this paragraph by the close of Fedwire.
    d. Section 4-302(a), in that, to avoid accountability, the time 
limit specified in that section for settlement or return by a paying 
bank on the banking day a check is received is superseded by the 
requirement to settle for checks presented under this paragraph by the 
close of Fedwire.

             XXIII. Section 229.37  Variations by Agreement

    A. This section is similar to U.C.C. 4-103, and permits consistent 
treatment of agreements varying Article 4 or Subpart C, given the 
substantial interrelationship of the two documents. To achieve 
consistency, the official comment to U.C.C. 4-103(a) (which in turn 
follows U.C.C. 1-201(3)) should be followed in construing this section. 
For example, as stated in Official Comment 2 to section 4-103, owners of 
items and other interested parties are not affected by agreements

[[Page 537]]

under this section unless they are parties to the agreement or are bound 
by adoption, ratification, estoppel, or the like. In particular, 
agreements varying this subpart that delay the return of a check beyond 
the times required by this subpart may result in liability under 
Sec. 229.38 to entities not party to the agreement. This section is 
consistent with the limits on truncation agreements in Sec. 229.36(c).
    B. The Board has not followed U.C.C. 4-103(b), which permits Federal 
Reserve regulations and operating letters, clearinghouse rules, and the 
like to apply to parties that have not specifically assented. 
Nevertheless, this section does not affect the status of such agreements 
under the U.C.C.
    C. The following are examples of situations where variation by 
agreement is permissible, subject to the limitations of this section:
    1. A depositary bank may authorize another bank to apply the other 
bank's indorsement to a check as the depositary bank. (See 
Sec. 229.35(d).)
    2. A depositary bank may authorize returning banks to commingle 
qualified returned checks with forward collection checks. (See 
Sec. 229.32(a).)
    3. A depositary bank may limit its liability to its customer in 
connection with the late return of a deposited check where the lateness 
is caused by markings on the check by the depositary bank's customer or 
prior indorser in the area of the depositary bank indorsement. (See 
Sec. 229.38(d).)
    4. A paying bank may require its customer to assume the paying 
bank's liability for delayed or missent checks where the delay or 
missending is caused by markings placed on the check by the paying 
bank's customer that obscured a properly placed indorsement of the 
depositary bank. (See Sec. 229.38(d).)
    5. A collecting or paying bank may agree to accept forward 
collection checks without the indorsement of a prior collecting bank. 
(See Sec. 229.35(a).)
    6. A bank may agree to accept returned checks without the 
indorsement of a prior bank. (See Sec. 229.35(a).)
    7. A presenting bank may agree with a paying bank to present checks 
for same-day settlement at a location that is not in the check 
processing region consistent with the routing number on the checks. (See 
Sec. 229.36(f)(1)(i).)
    8. A presenting bank may agree with a paying bank to present checks 
for same-day settlement by a deadline earlier or later than 8:00 a.m. 
(See Sec. 229.36(f)(1)(ii).)
    D. The Board expects to review the types of variation by agreement 
that develop under this section and will consider whether it is 
necessary to limit certain variations.

                     XXIV. Section 229.38  Liability

      A. 229.38(a) Standard of care; liability; measure of damages

    1. The standard of care established by this section applies to any 
bank covered by the requirements of Subpart C of the regulation. Thus, 
the standard of care applies to a paying bank under Secs. 229.30 and 
229.33, to a returning bank under Sec. 229.31, to a depositary bank 
under Secs. 229.32 and 229.33, to a bank erroneously receiving a 
returned check or written notice of nonpayment as depositary bank under 
Sec. 229.32(d), and to a bank indorsing a check under Sec. 229.35. The 
standard of care is similar to the standard imposed by U.C.C. 1-203 and 
4-103(a) and includes a duty to act in good faith, as defined in 
Sec. 229.2(nn) of this regulation.
    2. A bank not meeting this standard of care is liable to the 
depositary bank, the depositary bank's customer, the owner of the check, 
or another party to the check. The depositary bank's customer is usually 
a depositor of a check in the depositary bank (but see Sec. 229.35(d)). 
The measure of damages stated derives from U.C.C. 4-103(e) and 4-202(c). 
This subpart does not absolve a collecting bank of liability to prior 
collecting banks under U.C.C. 4-201.
    3. Under this measure of damages, a depositary bank or other person 
must show that the damage incurred results from the negligence proved. 
For example, the depositary bank may not simply claim that its customer 
will not accept a charge-back of a returned check, but must prove that 
it could not charge back when it received the returned check and could 
have charged back if no negligence had occurred, and must first attempt 
to collect from its customer. (See Marcoux v. Van Wyk, 572 F.2d 651 (8th 
Cir. 1978); Appliance Buyers Credit Corp. v. Prospect Nat'l Bank, 708 
F.2d 290 (7th Cir. 1983).) Generally, a paying or returning bank's 
liability would not be reduced because the depositary bank did not place 
a hold on its customer's deposit before it learned of nonpayment of the 
check.
    4. This paragraph also states that it does not affect a paying 
bank's liability to its customer. Under U.C.C. 4-402, for example, a 
paying bank is liable to its customer for wrongful dishonor, which is 
different from failure to exercise ordinary care and has a different 
measure of damages.

       B. 229.38(b)  Paying Bank's Failure To Make Timely Rreturn

    1. Section 229.30(a) imposes requirements on the paying bank for 
expeditious return of a check and leaves in place the U.C.C. deadlines 
(as they may be modified by Sec. 229.30(c)), which may allow return at a 
different time. This paragraph clarifies that the paying

[[Page 538]]

bank could be liable for failure to meet either standard, but not for 
failure to meet both. The regulation intends to preserve the paying 
bank's accountability for missing its midnight or other deadline under 
the U.C.C., (e.g., sections 4-215 and 4-302), provisions that are not 
incorporated in this regulation, but may be useful in establishing the 
time of final payment by the paying bank.

                  C. 229.38(c)  Comparative negligence

    1. This paragraph establishes a ``pure'' comparative negligence 
standard for liability under Subpart C of this regulation. This 
comparative negligence rule may have particular application where a 
paying or returning bank delays in returning a check because of 
difficulty in identifying the depositary bank. Some examples will 
illustrate liability in such cases. In each example, it is assumed that 
the returned check is received by the depositary bank after it has made 
funds available to its customer, that it may no longer recover the funds 
from its customer, and that the inability to recover the funds from the 
customer is due to a delay in returning the check contrary to the 
standards established by Secs. 229.30(a) or 229.31(a).
    2. Examples.
    a. If a depositary bank fails to use the indorsement required by 
this regulation, and this failure is caused by a failure to exercise 
ordinary care, and if a paying or returning bank is delayed in returning 
the check because additional time is required to identify the depositary 
bank or find its routing number, the paying or returning bank's 
liability to the depositary bank would be reduced or eliminated.
    b. If the depositary bank uses the standard indorsement, but that 
indorsement is obscured by a subsequent collecting bank's indorsement, 
and a paying or returning bank is delayed in returning the check because 
additional time was required to identify the depositary bank or find its 
routing number, the paying or returning bank may not be liable to the 
depositary bank because the delay was not due to its negligence. 
Nonetheless, the collecting bank may be liable to the depositary bank to 
the extent that its negligence in indorsing the check caused the paying 
or returning bank's delay.
    c. If a depositary bank accepts a check that has printing, a carbon 
band, or other material on the back of the check that existed at the 
time the check was issued, and the depositary bank's indorsement is 
obscured by the printing, carbon band, or other material, and a paying 
or returning bank is delayed in returning the check because additional 
time was required to identify the depositary bank, the returning bank 
may not be liable to the depositary bank because the delay was not due 
to its negligence. Nonetheless, the paying bank may be liable to the 
depositary bank to the extent that the printing, carbon band, or other 
material caused the delay.

       D. 229.38(d)  Responsibility for Certain Aspects of Checks

    1. Responsibility for back of check. The indorsement standard in 
Sec. 229.35 is most effective if the back of the check remains clear of 
other matter that may obscure bank indorsements. Because bank 
indorsements are usually applied by automated equipment, it is not 
possible to avoid pre-existing matter on the back of the check. For 
example, bank indorsements are not required to avoid a carbon band or 
printed, stamped, or written terms or notations on the back of the 
check. Accordingly, this provision places responsibility on the paying 
bank or depositary bank, as appropriate, for keeping the back of the 
check clear for bank indorsements during forward collection and return.
    2. Responsibility for payable-through checks.
    a. This paragraph provides that the bank by which a payable-through 
check is payable is liable for damages under paragraph (a) of this 
section to the extent that the check is not returned through the 
payable-through bank as quickly as would have been necessary to meet the 
requirements of Sec. 229.30(a)(1) (the 2-day/4-day test) had the bank by 
which it is payable received the check as paying bank on the day the 
payable-through bank received it. The location of the bank by which a 
check is payable for purposes of the 2-day/4-day test may be determined 
from the location or the first four digits of the routing number of the 
bank by which the check is payable. This information should be stated on 
the check. (See Sec. 229.36(e) and accompanying Commentary.) 
Responsibility under paragraph (d)(2) does not include responsibility 
for the time required for the forward collection of a check to the 
payable-through bank.
    b. Generally, liability under paragraph (d)(2) will be limited in 
amount. Under Sec. 229.33(a), a paying bank that returns the amount of 
$2,500 or more is not returned through the payable-through bank as 
quickly as would have been required had the check been received by the 
bank by which it is payable, the depositary bank should not suffer 
damages unless it has not received timely notice of nonpayment. Thus, 
ordinarily the bank by which a payable-through check is payable would be 
liable under paragraph (a) only for checks in amounts up to $2,500, and 
the paying bank would be responsible for notice of nonpayment for checks 
in the amount of $2,500 or more.
    3. Responsibility under paragraphs (d)(1) and (d)(2) is treated as 
negligence for comparative negligence purposes, and the contribution to 
damages under paragraphs (d)(1) and (d)(2) is treated in the same way as 
the

[[Page 539]]

degree of negligence under paragraph (c) of this section.

                   E. 229.38(e)  Timeliness of Action

    1. This paragraph excuses certain delays. It adopts the standard of 
U.C.C. 4-109(b).

                         F. 229.38(f)  Exclusion

    1. This paragraph provides that the civil liability and class action 
provisions, particularly the punitive damage provisions of sections 
611(a) and (b), and the bona fide error provision of 611(c) of the Act 
(12 U.S.C. 4010(a), (b), and (c)) do not apply to regulatory provisions 
adopted to improve the efficiency of the payments mechanism. Allowing 
punitive damages for delays in the return of checks where no actual 
damages are incurred would only encourage litigation and provide little 
or no benefit to the check collection system. In view of the provisions 
of paragraph (a), which incorporate traditional bank collection 
standards based on negligence, the provision on bona fide error is not 
included in Subpart C.

                       G. 229.38(g)  Jurisdiction

    1. The Act confers subject matter jurisdiction on courts of 
competent jurisdiction and provides a time limit for civil actions for 
violations of this subpart.

                 H. 229.38(h)  Reliance on Board Rulings

    1. This provision shields banks from civil liability if they act in 
good faith in reliance on any rule, regulation, or interpretation of the 
Board, even if it were subsequently determined to be invalid. Banks may 
rely on the Commentary to this regulation, which is issued as an 
official Board interpretation, as well as on the regulation itself.

                 XXV. Section 229.39  Insolvency of Bank

                             A. Introduction

    1. These provisions cover situations where a bank becomes insolvent 
during collection or return and are derived from U.C.C. 4-216. They are 
intended to apply to all banks.

                     B. 229.39(a)  Duty of Receiver

    1. This paragraph requires a receiver of a closed bank to return a 
check to the prior bank if it does not pay for the check. This permits 
the prior bank, as holder, to pursue its claims against the closed bank 
or prior indorsers on the check.

       C. 229.39(b)  Preference Against Paying or Depositary Bank

    1. This paragraph gives a bank a preferred claim against a closed 
paying or depositary bank that finally pays a check without settling for 
it. If the bank with a preferred claim under this paragraph recovers 
from a prior bank or other party to the check, the prior bank or other 
party to the check is subrogated to the preferred claim.

 D. 229.39(c)  Preference Against Paying, Collecting, or Depositary Bank

    1. This paragraph gives a bank a preferred claim against a closed 
collecting, paying, or returning bank that receives settlement but does 
not settle for a check. (See Commentary to Sec. 229.35(b) for discussion 
of prior and subsequent banks.) As in the case of Sec. 229.39(b), if the 
bank with a preferred claim under this paragraph recovers from a prior 
bank or other party to the check, the prior bank or other party to the 
check is subrogated to the preferred claim.

            E. 229.39(d)  Preference Against Presenting Bank

    1. This paragraph gives a paying bank a preferred claim against a 
closed presenting bank in the event that the presenting bank breaches an 
amount or encoding warranty as provided in Sec. 229.34(c)(1) or (3) and 
does not reimburse the paying bank for adjustments for a settlement made 
by the paying bank in excess of the value of the checks presented. This 
preference is intended to have the effect of a perfected security 
interest and is intended to put the paying bank in the position of a 
secured creditor for purposes of the receivership provisions of the 
Federal Deposit Insurance Act and similar provisions of state law.

                  F. 229.39(e)  Finality of Settlement

    1. This paragraph provides that insolvency does not interfere with 
the finality of a settlement, such as a settlement by a paying bank that 
becomes final by expiration of the midnight deadline.

           XXVI. Section 229.40  Effect on Merger Transaction

    A. When banks merge, there is normally a period of adjustment 
required before their operations are consolidated. To allow for this 
adjustment period, the regulation provides that the merged banks may be 
treated as separate banks for a period of up to one year after the 
consummation of the transaction. The term merger transaction is defined 
in Sec. 229.2(t). This rule affects the status of the combined entity in 
a number of areas in this subpart. For example:
    1. The paying bank's responsibility for expeditious return 
(Sec. 229.30).
    2. The returning bank's responsibility for expeditious return 
(Sec. 229.31).
    3. Whether a returning bank is entitled to an extra day to qualify a 
return that will be delivered directly to a depositary bank that has 
merged with the returning bank (Sec. 229.31(a)).

[[Page 540]]

    4. Where the depositary bank must accept returned checks 
(Sec. 229.32(a)).
    5. Where the depositary bank must accept notice of nonpayment 
(Sec. 229.33(c)).
    6. Where a paying bank must accept presentment of checks 
(Sec. 229.36(b)).

              XXVII. Section 229.41  Relation to State Law

    A. This section specifies that state law relating to the collection 
of checks is preempted only to the extent that it is inconsistent with 
this regulation. Thus, this regulation is not a complete replacement for 
state laws relating to the collection or return of checks.

                   XXVIII. Section 229.42  Exclusions

    A. Checks drawn on the United States Treasury, U.S. Postal Service 
money orders, and checks drawn on states and units of general local 
government that are presented directly to the state or unit of general 
local government and that are not payable through or at a bank are 
excluded from the coverage of the expeditious return and notice of 
nonpayment requirements of Subpart C of this regulation. Other 
provisions of this subpart continue to apply to the checks. This 
exclusion does not apply to checks drawn by the U.S. government on 
banks.

           XXIX. Appendix C--Model Forms, Clauses, and Notices

                             A. Introduction

    1. Appendix C contains model forms, clauses, and notices that may be 
used by banks to meet their disclosure responsibilities under the 
regulation. Banks using the model forms, clauses, and notices properly 
will be in compliance with the disclosure requirements of the 
regulation.
    2. Certain information that must be inserted by a bank using the 
forms is italicized within parentheses in the text of the forms. Some 
forms contain alternative clauses, and these are set forth in brackets 
and separated by the word ``or.'' Banks may make certain changes in the 
format or content of the model forms and delete material that is 
inapplicable without losing the Act's protection from liability for 
banks that use the forms properly. For example, if a bank does not take 
advantage of the Sec. 229.13 exceptions, it may delete the material 
relating to those exceptions. The rearrangement of the model forms, 
clauses, or notices may not be so extensive, however, as to affect the 
substance, clarity, or meaningful sequence of the forms. Acceptable 
changes include, for example:
    a. Using ``customer'' and ``bank'' instead of pronouns.
    b. Not using bold type for headings.
    c. Incorporating certain state law ``plain English'' requirements.
    3. Shorter time periods for availability may always be substituted 
for time periods used in the model forms, clauses, or notices.
    4. Banks may also add information related to their availability 
policies. For example, a bank might indicate that although funds have 
been made available to a customer and the customer has withdrawn them, 
the customer is still responsible for problems with the deposit, such as 
checks that were deposited being returned unpaid. Or a bank could 
provide in its disclosure a telephone number to be used if a customer 
has an inquiry regarding a deposit.
    5. Banks are cautioned against using the forms, clauses, or notices 
without reviewing their own policies and practices, as well as state and 
federal laws regarding the time periods for availability of specific 
types of checks. A bank using a model form will be in compliance with 
the Act and the regulation only if its disclosures correspond to the 
bank's availability policy.

                                B. Models

    1. Models C-1 through C-5 generally.
    a. These forms are models for the specific availability policy 
disclosure described in Sec. 229.16 of the regulation. The forms 
accommodate a variety of availability policies, ranging from policies of 
next-day availability to holds on a blanket basis up to the maximum time 
allowed in the regulation. Model C-3 reflects the additional disclosures 
discussed in Secs. 229.16(b) and (c) for banks that have a policy of 
extending availability times on a case-by-case basis.
    b. As already noted, there are several places in the forms where 
information must be inserted. This information includes the bank's name 
and cut-off times, limitations relating to next-day availability, and 
the first four digits of routing numbers for local banks. In disclosing 
when funds will be available for withdrawal, the bank must insert the 
original number (such as first, second, etc.) of the business day the 
funds will become available.
    c. Models C-1 through C-5 generally do not reflect any optional 
provisions of the regulation, or those that apply only to certain banks. 
Instead, disclosures for these provisions are included in the model 
clauses (Models C-6 through C-11). A bank using one of the model forms 
should also consider whether it must incorporate one or more of the 
model clauses.
    d. While Sec. 229.10(b) of the regulation requires next-day 
availability for electronic payments, Treasury regulations (31 CFR part 
210) and ACH association rules require that preauthorized credits 
(direct deposits) be made available on the day the bank receives the 
funds. Model Forms C-l through C-5 reflect these rules. Wire transfers, 
however, are not governed by Treasury or ACH rules, but banks generally 
make funds from wire

[[Page 541]]

transfers available on the day received or on the business day following 
receipt. Banks should ensure that their disclosures reflect the 
availability given in most cases for wire transfers.
    e. Banks that have used earlier versions of the model forms, 
clauses, or notices (such as those forms that gave Social Security 
benefits and payroll payments as examples of preauthorized credits 
available the day after deposit) are protected from civil liability 
under Sec. 229.21(e). Banks are encouraged, however, to use current 
versions of the forms when reordering or reprinting supplies of forms.
    2. Model C-1. A bank may use this form when its policy is to make 
funds from all deposits available on the first business day after a 
deposit is made. This form may also be used by banks that provide 
immediate availability by substituting the word ``immediately'' in place 
of ``on the first business day after the day we receive your deposit.''
    3. Model C-2. A bank may use this form when its policy is to make 
funds from all deposits available to its customers on the first business 
day after the deposit is made, and to reserve the right to invoke the 
new account and other exceptions in Sec. 229.13 of the regulation.
    4. Model C-3. A bank may use this form when its policy, in most 
cases, is to make funds from all types of deposits available the day 
after the deposit is made, but to delay availability on some deposits on 
a case-by-case basis up to the maximum time periods allowed under the 
regulation. A bank using this form also reserves the right to invoke the 
exceptions listed in Sec. 229.13 of the regulation. A bank reserving the 
right to impose the cash withdrawal limitation in Sec. 229.12(d) should 
disclose that funds may not be available until the sixth (rather than 
fifth) business day in the first paragraph under the heading ``Longer 
Delays May Apply.''
    5. Model C-4. A bank may use this form when its policy is the same 
as that outlined in Model C-5. The only difference between Model C-5 and 
Model C-4 is that in the latter a chart showing the bank's availability 
policy for local and nonlocal checks is substituted for the narrative 
description in the former.
    6. Model C-5. A bank may use this form when its policy is to impose 
delays to the full extent allowed by Sec. 229.12 and to reserve the 
right to invoke the Sec. 229.13 exceptions.
    7. Models C-6 through C-11 generally. These model clauses must be 
incorporated into a bank's specific availability policy disclosure under 
certain circumstances. The commentary to each clause indicates when the 
clause is required.
    8. Model C-6. This clause must be incorporated in the specific 
availability policy disclosure by banks that reserve the right to place 
a hold on funds already on deposit when they cash a check for the 
customer, as discussed under Sec. 229.19(e).
    9. Model C-7. This clause must be incorporated in the specific 
availability disclosure by banks that reserve the right to place a hold 
on funds in an account of the customer other than the account into which 
the deposit is made, as discussed in Sec. 229.19(e).
    10. Model C-8. This clause must be incorporated in the specific 
availability policy disclosure by banks in check processing regions 
where the availability schedules for certain nonlocal checks have been 
reduced, as described in Appendix B of the regulation. Banks using Model 
C-5 may insert this clause at the conclusion of the discussion titled 
``Nonlocal checks.''
    11. Model C-9. This clause must be incorporated in the specific 
availability policy disclosure by banks that reserve the right to delay 
availability of deposits at nonproprietary ATMs until the fifth business 
day following the date of deposit, as permitted by section 229.12(f). A 
bank must choose among the alternative language based on how it chooses 
to differentiate between proprietary and nonproprietary ATMs, as 
required under Sec. 229.16(b)(5).
    12. Model C-10. This clause may be used to disclose cash withdrawal 
limitations under Sec. 229.12. Banks using Model C-5 to disclose 
availability may substitute this clause for the sections titled ``Local 
checks'' and ``Nonlocal checks.''
    13. Model C-11. This clause must be incorporated in the specific 
availability policy disclosure by credit unions seeking to satisfy the 
notice requirement of Sec. 229.14(b). This model clause is only an 
example of a hypothetical policy. Credit unions may follow any policy 
for accrual provided the method of accruing interest is the same for 
cash and check deposits.
    14. Models C-12 through C-21 generally. These forms are models for 
various notices required by the regulation.
    15. Model C-12. This form satisfies the written notice required 
under Sec. 229.13(g) when a bank places a hold based on a Sec. 229.13 
exception. If a hold is being placed on more than one check in a 
deposit, each check need not be described, but if different reasons 
apply, each reason must be indicated. A bank may use the actual date 
when funds will be available for withdrawal rather than the number of 
the business day following the day of deposit. The bank must incorporate 
in the notice the material set out in brackets if it imposes overdraft 
fees after invoking a Sec. 229.13 exception.
    16. Model C-13. This form satisfies the same requirement as Model C-
12, and the same instructions apply, except that Model C-13 is for use 
by a bank that invokes the reasonable cause exception in Sec. 229.13. 
The form provides the bank with a list of specific reasons that may be 
given for invoking the

[[Page 542]]

exception. If a hold is being placed on more than one check in a 
deposit, each check must be described separately, and if different 
reasons apply, each reason must be indicated. Banks may disclose the 
reason for their doubting collectibility by checking the appropriate 
reason on the form. If the ``Other'' category is checked, the reason 
must be given.
    17. Model C-14. This form satisfies the notice requirements of 
Sec. 229.13(g)(2).
    18. Model C-15. This form satisfies the notice requirements of 
Sec. 229.13(g)(3).
    19. Model C-16. This form satisfies the notice required under 
Sec. 229.16(b)(2) when a bank with a case-by-case hold policy imposes a 
delay on a deposit. This notice does not require a statement of the 
specific reason for the hold, as is the case when a Sec. 229.13 
exception hold is placed. A bank may specify the actual date when funds 
will be available for withdrawal rather than the number of the business 
day following the day of deposit when funds will be available. The bank 
must incorporate in the notice the material set out in brackets if it 
imposes overdraft fees after invoking a case-by-case hold.
    20. Model C-17 and C-18. Either of these forms satisfies the notice 
requirement of Sec. 229.18(b) (notice at locations where employees 
accept consumer deposits). Model C-17 is based on an availability policy 
that is the same as the schedule described in Sec. 229.12 of the 
regulation and the policy reflected in models C-4 and C-5. Model C-18 
may be used by a bank with a case-by-case availability policy.
    21. Model C-19. This form satisfies the ATM notice requirement of 
Sec. 229.18(c)(1).
    22. Model C-20. This form satisfies the ATM notice requirement of 
Sec. 229.18(c)(2) when receipt of deposits at off-premise ATMs is 
delayed under Sec. 229.19(a)(4). It is based on collection of deposits 
once a week. If collections occur more or less frequently, the 
description of when deposits are received must be adjusted accordingly.
    23. Model C-21. This form satisfies the notice requirements of 
Sec. 229.18(a) for deposit slips.


[Reg. CC, 60 FR 51672, Oct. 3, 1995]

   Appendix F to Part 229--Official Board Interpretations; Preemption 
                             Determinations

                Uniform Commercial Code, Section 4-213(5)

    Section 4-213(5) of the Uniform Commercial Code (``U.C.C.'') 
provides that money deposited in a bank is available for withdrawal as 
of right at the opening of business of the banking day after deposit. 
Although the language ``deposited in a bank'' is unclear, arguably it is 
broader than the language ``made in person to an employee of the 
depositary bank'', which conditions the next-day availability of cash 
under Regulation CC (Sec. 229.10(a)(1)). Under Regulation CC, deposits 
of cash that are not made in person to an employee of the depositary 
bank must be made available by the second business day after the banking 
day of deposit (Sec. 229.10(a)(2)). Therefore, this provision of the 
U.C.C. may call for the availability of certain cash deposits in a 
shorter time than provided in Regulation CC.
    This provision of the U.C.C., however, is subject to Section 4-
103(1), which provides, in part, that ``the effect of the provisions of 
this Article may be varied by agreement * * *.'' (The Regulation CC 
funds availability requirements may not be varied by agreement.) U.C.C. 
Section 4-213(5) supersedes the Regulation CC provision in 
Sec. 229.10(a)(2), but a depositary bank may not agree with its customer 
under section 4-103(1) of the Code to extend availability beyond the 
time periods provided in Sec. 229.10(a) of Regulation CC.

                               California

                               Background

    The Board has been requested, in accordance with Sec. 229.20(d) of 
Regulation CC (12 CFR part 229), to determine whether the Expedited 
Funds Availability Act (the ``Act'') and subpart B (and in connection 
therewith, subpart A) of Regulation CC preempt the provisions of 
California law concerning availability of funds. This preemption 
determination specifies those provisions of the California funds 
availability law that supersede the Act and Regulation CC. (See also the 
Board's preemption determination regarding the Uniform Commercial Code, 
section 4-213(5), pertaining to availability of cash deposits.)
    California has four separate sets of regulations establishing 
maximum availability schedules. The regulations applicable to commercial 
banks and branches of foreign banks located in California (Cal. Admin. 
Code tit. 10, Secs. 10.190401-10.190402) were promulgated by the 
Superintendent of Banks. The regulations applicable to savings banks and 
savings and loan associations (Cal. Admin. Code tit. 10, Secs. 106.200-
106.202) were adopted by the Savings and Loan Commissioner. The 
regulations applicable to credit unions (Cal. Admin. Code tit. 10, 
section 901) and to industrial loan companies (Cal. Admin. Code tit. 10, 
section 1101) were adopted by the Commissioner of Corporations.
    All the regulations were adopted pursuant to California Financial 
Code section 866.5 and California Commercial Code section 4213(4)(a), 
under which the appropriate state regulatory agency for each depository 
institution must issue administrative regulations to define a reasonable 
time for permitting

[[Page 543]]

customers to draw on items received for deposit in the customer's 
account. California Financial Code section 867 also establishes 
availability periods for funds deposited by cashier's check, certified 
check, teller's check, or depository check under certain circumstances. 
Finally, California Financial Code section 866.2 establishes disclosure 
requirements.
    The Board's determination with respect to these California laws and 
regulations governing the funds availability requirements applicable to 
depository institutions in California are as follows.

             Commercial Banks and Branches of Foreign Banks

                                Coverage

    The California State Banking Department regulations, which apply to 
California state commercial banks, California national banks, and 
California branch offices of foreign banks, provide that a depositary 
bank shall make funds deposited into a deposit account available for 
withdrawal as provided in Regulation CC with certain exceptions. The 
funds availability schedules in Regulation CC apply only to accounts as 
defined in Regulation CC, which generally consist of transaction 
accounts. The California funds availability law and regulations apply to 
accounts as defined by Regulation CC as well as savings accounts (other 
than time accounts), as defined in the Board's Regulation D (12 CFR 
204.2(d)). (Note, however, that under Sec. 229.19(e) of Regulation CC, 
Holds on other funds, the federal availability schedules may apply to 
savings, time, and other accounts not defined as accounts under 
Regulation CC in certain circumstances.)

                         Availability Schedules

    Temporary schedule. Regulation CC provides that, until September 1, 
1990, nonlocal checks must be made available for withdrawal by the 
seventh business day after the banking day of deposit, except for 
certain nonlocal checks listed in appendix B-1, which must be made 
available within a shorter time (by the fifth business day following 
deposit for those California checks listed). Under the temporary 
schedule in the California regulations, a depositary bank with a four-
digit routing symbol of 1210 (``1210 bank'') or of 1220 (``1220 bank'') 
that receives for deposit a check drawn on a nonlocal, in-state 
commercial bank or foreign bank branch \1\ must make the funds available 
for withdrawal by the fourth business day after the day of deposit. The 
California regulations provide that 1210 and 1220 banks must make 
deposited checks drawn on nonlocal in-state thrifts (defined as savings 
and loan associations, savings banks, and credit unions) available by 
the fifth business day after deposit. In addition, California law 
provides that all other depositary banks must make deposited checks 
drawn on a nonlocal in-state commercial bank or foreign bank branch 
available by the fifth business day after deposit and checks drawn on 
nonlocal in-state thrifts available by the sixth business day after 
deposit. To the extent that these schedules provide for shorter holds 
than Regulation CC and its appendix B-1, the state schedules supersede 
the federal schedules.\2\ For example, the California four-day schedule 
that applies to checks drawn on in-state nonlocal commercial banks or 
foreign bank branches and deposited in a 1210 or 1220 bank would be 
shorter than and would supersede the federal schedules.
---------------------------------------------------------------------------

    \1\ The California regulation uses the term paying bank when 
describing the institution on which these checks are drawn, but does not 
define paying bank or bank. Regulation CC's definitions of paying bank 
and bank include savings institutions and credit unions as well as 
commercial banks and branches of foreign banks. However, because the 
California regulation makes separate provisions for checks drawn on 
savings institutions and credit unions, the Board concludes that the 
term paying bank, as used in the California regulation, includes only 
commercial banks and foreign bank branches.
    \2\ Appendix B-1 of Regulation CC provides that the federal 
schedules will be the same as the California schedules (5 days) in the 
following cases: A depositary bank bearing a 1210 routing number 
receiving for deposit checks bearing a 3220 or a 3223 routing number, 
and a depositary bank bearing a 1220 routing number receiving for 
deposit checks bearing a 3210 routing number. In the cases where federal 
and state law are the same, the state law is not preempted by, nor does 
it supersede, the federal law.
---------------------------------------------------------------------------

    The California regulations do not specify whether the state 
schedules apply to deposits of checks at nonproprietary ATMs. Under the 
temporary schedules in Regulation CC, deposits at nonproprietary ATMs 
must be made available for withdrawal by the seventh business day 
following deposit. To the extent that the California schedules provide 
for shorter availability for deposits at nonproprietary ATMs, they would 
supersede the temporary schedule in Regulation CC for deposits at 
nonproprietary ATMs specified in Sec. 229.11(d).
    Permanent schedule. Regulation CC provides that, as of September 1, 
1990, nonlocal checks must be made available for withdrawal by the fifth 
business day after the banking day of deposit. Under the permanent 
schedule in the California regulations, a depositary bank with a four-
digit routing symbol of 1210 or of 1220 that receives for deposit a 
check drawn

[[Page 544]]

on a nonlocal, in-state commercial bank or foreign bank branch must make 
the funds available for withdrawal by the fourth business day after the 
day of deposit. These state schedules provide for shorter hold periods 
than and thus supersede the federal schedules.
    Second-day availability. Section 867 of the California Financial 
Code requires depository institutions to make funds deposited by 
cashier's check, teller's check, certified check, or depository check 
available for withdrawal on the second business day following deposit, 
if certain conditions are met. The Regulation CC next-day availability 
requirement for cashier's checks and teller's checks applies only to 
those checks issued to a customer of the bank or acquired from the bank 
for remittance purposes. To the extent that the state second-day 
availability requirement applies to cashier's and teller's checks issued 
to a non-customer of the bank for other than remittance purposes, the 
state two-day requirement supersedes the federal local and nonlocal 
schedules.
    Availability at start of day. The California regulations do not 
specify when during the day funds must be made available for withdrawal. 
Section 229.19(b) of Regulation CC provides that funds must be made 
available at the start of the business day. In those cases where federal 
and state law provide for holds for the same number of days, to the 
extent that the California regulations allow funds to be made available 
later in the day than does Regulation CC, the federal law would preempt 
state law.
    Exceptions to the availability schedules. Under the state preemption 
standards of Regulation CC (see Sec. 229.20(c) and accompanying 
Commentary), for deposits subject to the state availability schedules, a 
state exception may be used to extend the state availability schedule up 
to the federal availability schedule. Once the deposit is held up to the 
federal availability schedule limit under a state exception, the 
depositary bank may further extend the hold under any federal exception 
that can be applied to the deposit. If no state exceptions exist, then 
no exceptions holds may be placed on deposits covered by state 
schedules. Thus, to the extent that California law provides for 
exceptions to the California schedules that supersede Regulation CC, 
those exceptions may be applied in order to extend the state 
availability schedules up to the federal availability schedules or such 
later time as is permitted by a federal exception.

                               Disclosures

    California law (Cal. Fin. Code Sec. 866.2) requires depository 
institutions to provide written disclosures of their general 
availability policies to potential customers prior to opening any 
deposit account. The law also requires that preprinted deposit slips and 
ATM deposit envelopes contain a conspicuous summary of the general 
policy. Finally, the law requires depository institutions to provide 
specific notice of the time the customer may withdraw funds deposited by 
check or similar instrument into a deposit account if the funds are not 
available for immediate withdrawal.
    Section 229.20(c)(2) of Regulation CC provides that inconsistency 
may exist when a state law provides for disclosures or notices 
concerning funds availability relating to accounts. California Financial 
Code Sec. 866.2 requires disclosures that differ from those required by 
Regulation CC and, therefore, is preempted to the extent that it applies 
to accounts as defined in Regulation CC. The state law continues to 
apply to savings accounts and other accounts not governed by Regulation 
CC disclosure requirements.

                          Savings Institutions

                                Coverage

    The California Department of Savings and Loan regulations, which 
apply to California savings and loan associations and California savings 
banks, provide that a depositary bank shall make funds deposited into a 
transaction or non-transaction account available for withdrawal as 
provided in Regulation CC. The funds availability schedules in 
Regulation CC apply only to accounts as defined in Regulation CC, which 
generally consist of transaction accounts. The California funds 
availability law and regulations apply to accounts as defined by 
Regulation CC as well as savings accounts as defined in the Board's 
Regulation D (12 CFR 204.2(d)). (Note, however, that under 
Sec. 229.19(e) of Regulation CC, Holds on other funds, the federal 
availability schedules may apply to savings, time, and other accounts 
not defined as accounts under Regulation CC in certain circumstances.)

                         Availability Schedules

    Second-day availability. Section 867 of the California Financial 
Code requires depository institutions to make funds deposited by 
cashier's check, teller's check, certified check, or depository check 
available for withdrawal on the second business day following deposit, 
if certain conditions are met. The Regulation CC next-day availability 
requirement for cashier's checks and teller's checks applies only to 
those checks issued to a customer of the bank or acquired from the bank 
for remittance purposes. To the extent that the state second-day 
availability requirement applies to cashier's and teller's checks issued 
to a non-customer of the bank for other than remittance purposes, the 
state two-day requirement supersedes the federal local and nonlocal 
schedules.
    Temporary and permanent schedules. Other than the provisions of 
Section 867 discussed

[[Page 545]]

above, California law incorporates the Regulation CC availability 
requirements with respect to deposits to accounts covered by Regulation 
CC. Because the state requirements are consistent with the federal 
requirements, the California regulation is not preempted by, nor does it 
supersede, the federal law.

                               Disclosures

    California law (Cal. Fin. Code Sec. 866.2) requires depository 
institutions to provide written disclosures of their general 
availability policies to potential customers prior to opening any 
deposit account. The law also requires that preprinted deposit slips and 
ATM deposit envelopes contain a conspicuous summary of the general 
policy. Finally, the law requires depository institutions to provide 
specific notice of the time the customer may withdraw funds deposited by 
check or similar instrument into a deposit account if the funds are not 
available for immediate withdrawal. Section 229.20(c)(2) of Regulation 
CC provides that inconsistency may exist when a state law provides for 
disclosures or notices concerning funds availability relating to 
accounts. To the extent that California Financial Code Sec. 866.2 
requires disclosures that differ from those required by Regulation CC 
and apply to accounts as defined in Regulation CC (generally, 
transaction accounts), the California law is preempted by Regulation CC.
    The Department of Savings and Loan regulations provide that for 
those non-transaction accounts covered by state law but not by federal 
law, disclosures in accordance with Regulation CC will be deemed to 
comply with the state law disclosure requirements. To the extent that 
the Department of Savings and Loan regulations permit reliance on 
Regulation CC disclosures for transaction accounts and to the extent the 
state regulations survive the preemption of California Financial Code 
Sec. 866.2, they are not preempted by, nor do they supersede, the 
federal law. The state law continues to apply to savings accounts and 
other non-transaction accounts not governed by Regulation CC disclosure 
requirements.

               Credit Unions and Industrial Loan Companies

    Each credit union and federally-insured industrial loan company that 
maintains an office in California for the acceptance of deposits must 
make funds deposited by check available for withdrawal in accordance 
with the following table:

------------------------------------------------------------------------
                                                Availability            
                                   -------------------------------------
                                                        Industrial Loan 
                                       Credit Union         Company     
------------------------------------------------------------------------
$100 or less checks; U.S. Treasury  1st day..........  1st day          
 checks; state/local gov't checks.                                      
On us checks; cashier's/certifies/  2nd day..........  2nd day          
 teller's/depository checks.                                            
In-state checks...................  6th day..........  6th day          
out-of-state checks...............  10th day.........  12th day         
------------------------------------------------------------------------
Note: These time periods are stated in terms of availability for        
  withdrawal not later than the Xth business day following the banking  
  day of deposit to facilitate comparison with Regulation CC. State     
  regulations are stated in terms of availability at the start of the   
  business day subsequent to the number of days specified in the        
  regulation.                                                           

                                Coverage

    The California law and regulations govern the availability of funds 
to ``demand deposits, negotiable order of withdrawal draft accounts, 
savings deposits subject to automatic transfers, share draft accounts, 
and all savings deposits and share accounts, other than time deposits.'' 
(California Financial Code section 886(b)) The federal preemption of 
state funds availability laws only applies to accounts subject to 
Regulation CC, which generally includes transaction accounts. Thus, the 
California funds availability regulations continue to apply to deposits 
in savings and other accounts (such as accounts in which the account-
holder is another bank) that are no accounts under Regulation CC. (Note, 
however, that under Sec. 229.19(e) of Regulation CC, Holds on other 
funds, the federal availability schedules may apply to savings, time, 
and other accounts not defined as accounts under Regulation CC in 
certain circumstances.)
    The California law applies to any Item (California Financial Code 
section 866.5 and California Commercial Code section 4213(4)(a)). The 
California Commercial Code defines item to mean any instrument for the 
payment of money even though it is not negotiable * * * (Cal. Com. Code 
section 4104(g)). This term is broader in scope than the definition of 
check in the Act and Regulation CC. The Commissioner's regulations, 
however, define the term item to include checks, negotiable orders of 
withdrawal, share drafts, warrants, and money orders. As limited by the 
state regulations, the state law applies only to instruments that are 
also checks as defined in Sec. 229.2(k) of Regulation CC.

                         Availability Schedules

    Temporary schedule. The California regulations provide that in-state 
nonlocal checks must be made available for withdrawal not

[[Page 546]]

later than the sixth business day following deposit. This time period is 
shorter than the seventh business day availability required for nonlocal 
checks under Sec. 229.11(c) of Regulation CC, although it is not shorter 
than the schedules for nonlocal checks set forth in Sec. 229.11(c)(2) 
and appendix B-1 of Regulation CC. Thus, the state scheduled for in-
state nonlocal checks supersede the federal schedule to the extent that 
they apply to an item payable by a California institution that is 
defined as a nonlocal check under Regulation CC, and is not subject to 
reduced schedules under Sec. 229.11(c)(2) and appendix B-1.
    Under the California regulations, credit unions and industrial loan 
companies must provide next-day availability to first-indorsed items 
issued by any federally-insured institution. This regulatory 
requirement, however, has been superseded by section 867 of the 
California Financial Code, which requires depository institutions to 
make funds deposited by cashier's check, teller's check, certified 
checks, or depository check available for withdrawal on the second 
business day following deposit, if certain conditions are met. This 
requirement became effective January 1, 1988.
    The Regulation CC next-day availability requirement for cashier's 
checks and teller's checks applies only to those checks issued for 
remittance purposes. To the extent that the state second business day 
availability requirement applies to cashier's and teller's checks issued 
for other than remittance purposes, the state two-day requirement 
supersedes the federal local and nonlocal schedules.
    The California regulations do not specify whether they apply to 
deposits of checks at nonproprietary ATMs. Under the temporary schedule 
in Regulation CC, deposits at nonproprietary ATMs must be made available 
for withdrawal at the start of the seventh business day after deposit. 
To the extent that the California schedules provide for shorter 
availability for deposits at nonproprietary ATMs, they would supersede 
the temporary schedule in Regulation CC for deposits at nonproprietary 
ATMs specified in Sec. 229.11(d).
    Permanent schedule. Under the California regulations, credit unions 
and industrial loan companies must provide next-day availability to 
first-indorsed items issued by any federally-insured institution. This 
regulatory requirement, however, has been superseded by section 867 of 
the California Financial Code, which requires depository institutions to 
make funds deposited by cashier's check, teller's check, certified 
check, or depository check available for withdrawal on the second 
business day following deposit, if certain conditions are met. This 
requirement became effective January 1, 1988.
    The Regulation CC next-day availability requirement for cashier's 
and teller's checks applies only to those checks issued for remittance 
purposes. To the extent that the state second business day availability 
requirement applies to cashier's and teller's checks issued for other 
than remittance purposes, the state two-day requirement supersedes the 
federal local and nonlocal schedules.
    Next-day availability. Credit unions and industrial loan companies 
in California are required to give next-day availability to items drawn 
by the State of California or any of its departments, agencies, or 
political subdivisions. California law supersedes the fedeal law in that 
the state law does not condition next-day availability on receipt at a 
staffed teller station or use of a special deposit slip.
    California credit unions and industrial loan companies must provide 
second business day availability to checks drawn on the depositary bank. 
Regulation CC requires next-day availability for checks deposited in a 
branch of the depositary bank and drawn on the same or another branch of 
the same bank if both branches are located in the same state or the same 
check processing region. Thus, generally, the Regulation CC rule for 
availability of on us checks preempts the California regulations. To the 
extent, however, that an on us check is (1) drawn on an out-of-state 
branch of the depositary bank that is not in the same check processing 
region as the branch in which it was deposited, or (2) deposited at an 
off-premises ATM or another facility of the depositary bank that is not 
considered a branch under federal law, the state regulation supersedes 
the Regulation CC availability requirements.
    Exceptions to the availability schedules. California law provides 
exceptions to the state availability schedules for large deposits, new 
accounts, repeated overdrafters, doubtful collectibility, foreign items, 
and emergency conditions. In all cases where the federal availability 
schedule preempts the state schedule, only the federal exceptions will 
apply. For deposits that are covered by the state availability schedule 
(e.g., in-state nonlocal checks under the temporary schedule; cashier's 
or teller's checks that are not deposited with a special deposit slip or 
at a staff teller station), the state exceptions may be used to extend 
the state availability schedule up to the federal availability schedule. 
Once the deposit is held up to the federal availability limit under a 
state exception, the depositary bank may further extend the hold under 
any federal exception that can be applied to the deposit. Any time a 
depositary bank invokes an exception to extend a hold beyond the time 
periods otherwise permitted by law, it must give notice of the extended 
hold to its customer in accordance with Sec. 229.13(g) of Regulation CC.
    Business day/banking day. The definitions of business day and 
banking day in the California regulations are preempted by the 
Regulation CC definition of those terms. Thus, for

[[Page 547]]

determining the permissible hold under the California schedules that 
supersede the Regulation CC schedule, deposits are considered made on 
the specified number of business days following the banking day of 
deposit.

                               Disclosures

    California law (Cal. Fin. Code section 866.2) requires depository 
institutions to provide written disclosures of their general 
availability policies to potential customers prior to opening any 
deposit account. The law also requires that preprinted deposit slips and 
ATM deposit envelopes contain a conspicuous summary of the general 
policy. Finally, the law requires a depository institution to provide 
specific notice of the time the customer may withdraw funds deposited by 
check or similar instrument into a deposit account if the funds are not 
available for immediate withdrawal.
    Section 229.20(c)(2) of Regulation CC provides that inconsistency 
may exist when a state law provides for disclosures or notices 
concerning funds availability relating to accounts. California Financial 
Code section 866.2 requires disclosures that differ from those required 
by Regulation CC, and therefore is preempted to the extent that it 
applies to accounts as defined in Regulation CC. The state law continues 
to apply to savings accounts and other accounts not governed by 
Regulation CC disclosure requirements.

                               Connecticut

                               Background

    The Board has been requested, in accordance with Sec. 229.20(d) of 
Regulation CC (12 CFR part 229), to determine whether the Expedited 
Funds Availability Act (the ``Act'') and subpart B (and in connection 
therewith, subpart A) of Regulation CC, preempt provisions of 
Connecticut law relating to the availability of funds. This preemption 
determination specifies those provisions of the Connecticut funds 
availability law that supersede the Act and Regulation CC. (See also the 
Board's preemption determination regarding the Uniform Commercial Code, 
section 4-213(5), pertaining to availability of cash deposits.)
    In 1987, Connecticut amended its statute governing funds 
availability (Conn. Gen. Stat. section 36-9v), which requires 
Connecticut depository institutions to make funds deposited in a 
checking, time, interest, or savings account available for withdrawal 
with specified periods.
    Generally, the Connecticut statute, as amended, provides that items 
deposited in a checking, time, interest, or savings account at a 
depository institution must be available for withdrawal in accordance 
with the following table:

                                                                        
                                                     Availability       
                                                                        
On us checks...............................  2nd day                    
In-state checks............................  4th day                    
Out-of-state checks........................  6th day                    
                                                                        

    Exceptions to the schedules are provided for items received for 
deposit for the purpose of opening an account and for items that the 
depositary bank has reason to believe will not clear. The Connecticut 
statute also requires availability policy disclosures to depositors in 
the form of written notices and notices posted conspicuously at each 
branch.

                                Coverage

    The Connecticut statute governs the availability of funds deposited 
in savings and time accounts, as well as accounts as defined in 
Sec. 229.2(a) of Regulation CC. The federal preemption of state funds 
availability requirements only applies to accounts subject to Regulation 
CC, which generally consist of trasaction accounts. Regulation CC does 
not affect the Connecticut statute to the extent that the state law 
applies to deposits in savings and other accounts (including transaction 
accounts where the account holder is a bank, foreign bank or the U.S. 
Treasury) that are not accounts under Regulation CC. (Note, however, 
that under Sec. 229.19(e) of Regulation CC, Holds on other funds, the 
federal availability schedules may apply to savings, time, and other 
accounts not defined as accounts under Regulation CC, in certain 
circumstances.)
    The Connecticut statute applies to items deposited in accounts. This 
term encompasses instruments that are not defined as checks in 
Regulation CC (Sec. 229.2(k)), such as nonnegotiable instruments, and 
are therefore not subject to Regulation CC's provisions governing funds 
availability. Those items that are subject to Connecticut law but are 
not subject to Regulation CC will continue to be covered by the state 
availability schedules and exceptions.

                         Availability Schedules

    Temporary schedule. Connecticut law provides that certain checks 
that are nonlocal under Regulation CC must be available in a shorter 
time (sixth business day after deposit for checks payable by depository 
institutions not located in Connecticut) than under the federal 
regulation (seventh business day after deposit under the temporary 
schedule for nonlocal checks). Accordingly, the Connecticut law 
supersedes Regulation CC with respect to nonlocal checks (other than 
checks covered by appendix B-1) deposited in accounts until the federal 
permanent availability schedules take effect on September 1, 1990.
    The Connecticut statute does not specify whether it applies to 
deposits of checks at nonproprietary ATMs. Under the temporary

[[Page 548]]

schedule in Regulation CC, deposits at nonproprietary ATMs must be made 
available for withdrawal at the start of the seventh business day after 
deposit. To the extent that the Connecticut schedules provide for 
shorter availability for deposits at nonproprietary ATMs, they would 
supersede the temporary schedule in Regulation CC for deposits at 
nonproprietary ATMs specified in Sec. 229.11(d).
    Exceptions to the availability schedule. The Connecticut law 
provides exceptions for items received for deposit for the purpose of 
opening new accounts and for items that the depositary bank has reason 
to believe will not clear. In all cases where the federal availability 
schedule preempts the state schedule, only the federal exceptions will 
apply. For deposits that are covered by the state availability schedule 
(e.g., nonlocal out-of-state checks under the temporary schedule), the 
state exceptions may be used to extend the state availability schedule 
(of six business days) to meet the federal availability schedule (of 
seven business days). Once the deposit is held up to the federal 
availability schedule limit under a state exception, the depositary bank 
may further extend the hold under any federal exception that can be 
applied to the deposit. Any time a depositary bank invokes an exception 
to extend a hold beyond the time periods otherwise permitted by law, it 
must give notice of the extended hold to its customer, in accordance 
with Sec. 229.13(g) of Regulation CC.

                               Disclosures

    The Connecticut statute (Conn. Gen. Stat. Section 36-9v(b)) requires 
written notice to depositors of an institution's check hold policy and 
requires a notice of the policy to be posted in each branch.
    Regulation CC preempts state disclosure requirements concerning 
funds availability that relate to accounts that are inconsistent with 
the federal requirements. The state requriements are different from, and 
therefore inconsistent with, the federal disclosure rules. 
(Sec. 229.20(c)(2)). Thus, the Connecticut statute is preempted by 
Regulation CC to the extent that these disclosure provisions apply to 
accounts as defined by Regulation CC. The Connecticut disclosure rules 
would continue to apply to accounts, such as savings and time accounts, 
not governed by the Regulation CC disclosure requirements.

                                Illinois

    The Board has been requested, in accordance with Sec. 229.20(d) of 
Regulation CC (12 CFR part 229), to determine whether the Expedited 
Funds Availability Act and subpart B, and, in connection therewith, 
subpart A, of Regulation CC, preempt provisions of Illinois law relating 
to the availability of funds. Section 4-213(5) of the Uniform Commercial 
Code as adopted in Illinois (Illinois Revised Statutes Chapter 26, 
paragraph 4-213(5), enacted July 26, 1988) provides that:

    Time periods after which deposits must be available for withdrawal 
shall be determined by the provisions of the federal Expedited Funds 
Availability Act (Title VI of the Competitive Equality Banking Act of 
1987) and the regulations promulgated by the Federal Reserve Board for 
the implementation of that Act.

    Section 4-213(5) of the Illinois law does not supersede Regulation 
CC; and, because this provision of Illinois law does not permit funds to 
be made available for withdrawal in a longer period of time than 
required under the Act and Regulation, it is not preempted by Regulation 
CC.

                                  Maine

                               Background

    The Board has been requested, in accordance with Sec. 229.20(d) of 
Regulation CC (12 CFR part 229), to determine whether the Expedited 
Funds Availability Act (the ``Act'') and subpart B (and in connection 
therewith, subpart A) of Regulation CC, preempt the provisions of Maine 
law concerning the availability of funds. This preemption determination 
addresses the relation of the Act and Regulation CC to the Maine funds 
availability law. (See also the Board's preemption determination 
regarding the Uniform Commercial Code, section 4-213(5), pertaining to 
availability of cash deposits.)
    In 1985, Maine adopted a statute governing funds availability (Title 
9-B MRSA section 241(5)), which requires Maine financial institutions to 
make funds deposited in a transaction account, savings account, or time 
account available for withdrawal within a reasonable period. The Maine 
statute gives the Superintendent of Banking for the State of Maine the 
authority to promulgate rules setting forth time limitations and 
disclosure requirements governing funds availability.
    The Superintendent of Banking issued regulations implementing the 
Maine funds availability statute, effective July 1, 1987 (Regulation 
18(IV)), and adopted amendments to this regulation, effective September 
1, 1988. Under the revised regulation, funds deposited to any deposit 
account in a Maine financial institution must be made available for 
withdrawal in accordance with the Act and Regulation CC (Regulation 18-
IV(A)(1)). The state regulation provides that an institution's funds 
availability policies for accounts subject to Regulation CC be disclosed 
in a manner consistent with the Regulation CC requirements. Funds 
availability policies for accounts not subject to Regulation CC must be 
disclosed in accordance with the state regulation (Regulation 18-
IV(A)(2)).

[[Page 549]]

                                Coverage

    The Maine law and regulation govern the availability of funds to any 
deposit account, as defined in the Board's Regulation D (12 CFR 
204.2(a)). This coverage is broader than the accounts covered in 
Regulation CC. The Maine law continues to apply to all deposit accounts, 
including those that are not accounts under Regulation CC. (Note, 
however, that under Sec. 229.19(e) of Regulation CC, Holds on other 
funds, the federal availability schedules may apply to savings, time, 
and other accounts not defined as accounts under Regulation CC, in 
certain circumstances.)

                 Availability Schedules and Disclosures

    The Maine regulation incorporates the Regulation CC availability and 
disclosure requirements with respect to deposits to accounts covered by 
Regulation CC. Because the state requirements are consistent with the 
federal requirements, the Maine regulation is not preempted by, nor does 
it supersede, the federal law.

                              Massachusetts

                               Background

    The Board has been requested, in accordance with Sec. 229.20(d) of 
Regulation CC (12 CFR part 229), to determine whether the Expedited 
Funds Availability Act (the ``Act'') and subpart B (and in connection 
therewith, subpart A) of Regulation CC, preempt provisions of 
Massachusetts law relating to the availability of funds. This preemption 
determination addresses the relationship of the Act and Regulation CC to 
the Massachusetts funds availability law. (See also the Board's 
preemption determination regarding the Uniform Commercial Code, section 
4-213(5), pertaining to availability of cash deposits.)
    In 1988, Massachusetts amended its statute governing funds 
availability (Mass. Gen. L. ch. 167D, section 35), to require 
Massachusetts banking institutions to make funds available for 
withdrawal and disclose their availability policies in accordance with 
the Act and Regulation CC. The Massachusetts law, however, provides that 
``local originating depository institution'' is to be defined as any 
originating depository institution located in the Commonwealth.

                                Coverage

    The Massachusetts statute governs the availability of funds 
deposited in ``any demand deposit, negotiable order of withdrawal 
account, savings deposit, share account or other asset account.'' 
Regulation CC applies only to accounts as defined in Sec. 229.2(a). 
Regulation CC does not affect the Massachusetts statute to the extent 
that the state law applies to deposits in savings and other accounts 
(including transaction accounts where the account holder is a bank, 
foreign bank, or the U.S. Treasury) that are not accounts under 
Regulation CC. (Note, however, that under Sec. 229.19(e) of Regulation 
CC, Holds on other funds, the federal availability schedules may apply 
to savings, time, and other accounts not defined as accounts under 
Regulation CC, in certain circumstances.)

                         Availability Schedules

    The Massachusetts definition of local originating depository 
institution (local paying bank in Regulation CC terminology) requires 
that in-state checks that are nonlocal checks under Regulation CC be 
made available in accordance with the Regulation CC local schedule. The 
Massachusetts law supersedes Regulation CC under the temporary and 
permanent schedule with respect to nonlocal checks payable by banks 
located in Massachusetts and deposited into accounts. Regulation CC 
preempts the Massachusetts law, however, to the extent the state law 
does not define banks located outside of Massachusetts, but in the same 
check processing region as the paying bank, as local originating 
depository institutions.

                               Disclosures

    The Massachusetts regulation incorporates the Regulation CC 
disclosure requirements with respect to both accounts covered by 
Regulation CC and savings and other accounts not governed by the federal 
regulation. Because the state requirements are consistent with the 
federal requirements, the Massachusetts regulation is not preempted by, 
nor does it supersede, the federal law. The Massachusetts disclosure 
rules would continue to apply to accounts not governed by the Regulation 
CC disclosure requirements.

                               New Jersey

                               Background

    The Board has been requested, in accordance with Sec. 229.20(d) of 
Regulation CC (12 CFR part 229), to determine whether the Expedited 
Funds Availability Act (the ``Act'') and subpart B (and in connection 
therewith, subpart A) of Regulation CC preempt the provisions of New 
Jersey law concerning disclosure of a bank's funds availability policy. 
(See also the Board's preemption determination regarding the Uniform 
Commercial Code, section 4-213(5), pertaining to availability of cash 
deposits.)
    New Jersey does not have a law or regulation establishing the 
maximum time periods within which funds deposited by check or electronic 
payment must be made available for withdrawal. New Jersey does, however, 
have regulations concerning the disclosure of a banking institution's 
availability policy (N.J.A.C. 3:1-15.1 et seq.).

[[Page 550]]

                               Disclosures

    New Jersey law requires every banking institution (defined as any 
state or federally chartered commercial bank, savings bank, or savings 
and loan association) to provide written disclosure to all holders of 
and applicants for deposit accounts which describes the institution's 
funds availability policy. Institutions must also disclose to their 
customers any significant changes to their availability policy.
    Regulation CC preempts state disclosure requirements concerning 
funds availability that relates to accounts that are inconsistent with 
the federal requirements. The state requirements are different from, and 
therefore inconsistent with, the federal disclosure rules. 
(Sec. 229.20(c)(2)). Thus, the New Jersey statute (N.J.A.C. sections 
3:1-15.1 et seq.) is preempted by Regulation CC to the extent that these 
disclosure provisions apply to accounts as defined by Regulation CC. The 
New Jersey disclosure rules would continue to apply to other deposit 
accounts, as defined by New Jersey law, including money market accounts 
and savings accounts established by a natural person for personal or 
family purposes, which are not governed by the Regulation CC disclosure 
requirements.

                                New York

                               Background

    The Board has been requested, in accordance with Sec. 229.20(d) of 
Regulation CC (12 CFR part 229), to determine whether the Expedited 
Funds Availability Act (the ``Act'') and subpart B (and in connection 
therewith, subpart A) of Regulation CC, preempt the provisions of New 
York law concerning the availability of funds. This preemption 
determination addresses the relation of the Act and Regulation CC to the 
New York funds availability law. (See also the Board's preemption 
determination regarding the Uniform Commercial Code, section 4-213(5), 
pertaining to availability of cash deposits.)
    In 1983, the New York State Banking Department, pursuant to section 
14-d of the New York Banking law, issued regulations requiring that 
funds deposited in an account be made available for withdrawal within 
specified time periods, and provided certain exceptions to those 
availability schedules. Part 34 of the New York State Banking 
Department's General Regulations established time frames within which 
commercial banks, trust companies, and branches of foreign banks 
(banks); and savings banks, savings and loan associations, and credit 
unions (savings institutions) must make funds deposited in customer 
accounts available for withdrawal.
    The Banking Department amended part 34, effective September 1, 1988, 
generally to exclude accounts covered by Regulation CC from the scope of 
the state regulation. Part 34.4 (a)(2) and (b)(2) of the revised New 
York rules, however, continue to apply to checks deposited to accounts, 
as defined in Regulation CC. These provisions require that the proceeds 
of nonlocal checks payable by a New York institution be made available 
for withdrawal not later than the start of the fourth business day 
following deposit, if deposited in a bank, or the fifth business day 
following deposit, if deposited in a savings institution. The revised 
regulation also provides that, with respect to savings accounts and time 
deposits, New York institutions could elect to comply with either the 
state or federal availability and disclosure requirements.
    This preemption determination supersedes the determination issued by 
the Board on August 18, 1988 (53 FR 32357 (August 24, 1988)).

                                Coverage

    The New York law and regulation govern the availability of funds in 
savings accounts and time deposits, as well as accounts as defined in 
Sec. 229.2(a) of Regulation CC. The New York law continues to apply to 
deposits to savings accounts and time deposits that are not accounts 
under Regulation CC. (Note, however, that under Sec. 229.19(e) of 
Regulation CC, Hold on other funds, the federal availability schedules 
may apply to savings, time, and other accounts not defined as accounts 
under Regulation CC, in certain circumstances.)
    The New York law and regulation apply to items deposited to 
accounts. Part 34.3(e) defines item as a check, negotiable order of 
withdrawal or money order deposited into an account. The Board 
interprets the definition of item in New York law to be consistent with 
the definition of check in Regulation CC (Sec. 229.2(k)).

                         Availability Schedules

    The provisions of New York law governing the availability of in-
state nonlocal items provide for shorter hold than is provided under 
Regulation CC, and supersede that federal availability requirements. 
With the exception of these provisions, the New York regulation does not 
apply to deposits to accounts covered by Regulation CC.
    Temporary schedule. The time periods for the availability of in-
state nonlocal checks, contained in part 34.4 (a)(2) and (b)(2), are 
shorter that the seventh business day availability required for nonlocal 
checks under Sec. 229.11(c) of Regulation CC, although they are not 
necessarily shorter than the schedules for nonlocal checks set forth in 
Sec. 229.11(c)(2) and appendix B-1 of Regulation CC. Thus, these state 
schedules supersede the federal schedule to the extent that they apply 
to an item payable by a New York bank or savings institution that is 
defined as

[[Page 551]]

a nonlocal checks under Regulation CC and the applicable state schedule 
is less than the applicable schedule specified in Sec. 229.11(c) and 
appendix B-1.
    Permanent schedule. The New York schedule for banks supersedes the 
Regulation CC requirement in the permanent schedule, effective September 
1, 1990, that nonlocal checks be made available for withdrawal by the 
start of the fifth business day following deposit, to the extent that 
the in-state checks are defined as nonlocal under Regulation CC, and the 
Regulation CC schedule for nonlocal checks is not shortened under 
Sec. 229.12(c)(2) and appendix B-2 of Regulation CC. In addition, the 
New York schedule for savings institutions supersedes the Regulation CC 
time period adjustment for withdrawal by cash or similar means in the 
permanent schedule, to the extent that the in-state checks are defined 
as nonlocal under Regulation CC, and the Regulation CC schedule for 
nonlocal checks is not shortened under Sec. 229.12(c)(2) and appendix B-
2.
    Exceptions to the availability schedules. New York law provides 
exceptions to the state availability schedules for large deposits, new 
accounts, repeated overdrafters, doubtful collectibility, foreign items, 
and emergency conditions (part 34.4). The state exceptions apply only 
with respect to deposits of in-state nonlocal checks that are subject to 
the state availability schedule. For these deposits, the depositary bank 
may invoke a state exception and place a hold on the deposit up to the 
federal availability schedule limit for that type of deposit. Once the 
federal availability schedule limit is reached, the depositary bank may 
further extend the hold under any of the federal exceptions that apply 
to that deposit. Any time a depositary bank invokes an exception to 
extend a hold beyond the time periods otherwise permitted by law, it 
must give notice of the extended hold to its customer in accordance with 
Sec. 229.12(g) of Regulation CC.

                               Disclosures

    The revised New York regulation does not contain funds availability 
disclosure requirements applicable to accounts subject to Regulation CC.

                              Rhode Island

                               Background

    The Board has been requested, in accordance with Sec. 229.20(d) of 
Regulation CC (12 CFR part 229), to determine whether the Expedited 
Funds Availability Act (the ``Act'') and subpart B (and in connection 
therewith, subpart A) of Regulation CC, supersede provisions of Rhode 
Island law relating to the availability of funds. This preemption 
determination specifies those provisions in the Rhode Island funds 
availability law that supersede the Act and Regulation CC. (See also the 
Board's preemption determination regarding the Uniform Commercial Code, 
section 4-213(5), pertaining to availability of cash deposits.)
    In 1986, Rhode Island adopted a statute governing funds availability 
(R.I. Gen. Laws tit. 6A, sections 4-601 through 4-608), which requires 
Rhode Island depository institutions to make checks deposited in a 
personal transaction account available for withdrawal within certain 
specific periods. Commercial banks and thrift institutions (mutual 
savings banks, savings banks, savings and loan institutions and credit 
unions) must make funds available for withdrawal in accordance with the 
following table:

------------------------------------------------------------------------
                                                            Thrift      
                                    Commercial banks     institutions   
------------------------------------------------------------------------
Treasury checks, Rhode Island       2nd.............  2nd               
 Government checks, first-indorsed.                                     
In-state cashier's checks less      2nd.............  2nd               
 than $2,500.                                                           
On-us checks......................  2nd.............  3rd               
In-state clearinghouse checks.....  3rd.............  4th               
In-state nonclearinghouse checks..  5th.............  6th               
1st or 2nd Federal Reserve          7th.............  7th               
 District checks (out-of-state).                                        
Other checks......................  9th.............  10th              
------------------------------------------------------------------------
Note: These time periods are stated in terms of availability for        
  withdrawal not later than the Xth business day following the banking  
  day of deposit to facilitate comparison with Regulation CC. State     
  regulations are stated in terms of availability at the start of the   
  business day subsequent to the number of days specified in the        
  regulation.                                                           

The Rhode Island statute also provides restrictions and exceptions to 
the schedules and requires institutions to make certain disclosures to 
their customers.

                                Coverage

    The Rhode Island statute governing the availability of funds 
deposited in personal transaction accounts, a term not defined in the 
statute. The federal law would continue to apply to accounts, as defined 
in Sec. 229.2(a), that are not personal transaction accounts.
    The Rhode Island statute applies to items, defined as checks, 
negotiable orders of withdrawal, or money orders. The Board interprets 
the definition of item to be consistent with the definition of check in 
Regulation CC (Sec. 299.2(k)).

                         Availability Schedules

    Temporary schedule. Rhode Island law requires availability for 
certain checks in the same time as does Regulation CC. Thus, in these 
instances, the federal law does not preempt the state law. Rhode Island 
law requires commercial banks (but not thrift institutions) to make 
checks payable by a depositary institution that uses the same in-state 
clearing facility as the depositary bank available for withdrawal on the 
third business day following the day of the deposit. This is the same 
time period contained in Regulation CC for local checks payable by a

[[Page 552]]

bank that is a member of the same local clearinghouse as the depositary 
bank. (The Board views the definition of the same in-state clearing 
facility as having the same meaning as the term the same check 
clearinghouse association in the federal law's provision that allows 
banks to limit the customer's ability to withdraw cash on the third 
business day if the local check being deposited is payable by a bank 
that is not a member of the same local clearinghouse as the depositary 
bank.) Since the Rhode Island law and the federal law both require the 
funds to be made available no later than the third business day, the 
state law is not preempted by the federal law.
    The Rhode Island law also requires commercial banks and savings 
institutions to make checks payable by a depository institution located 
in the First or Second Federal Reserve District (outside of Rhode 
Island) available on the seventh business day following deposit. To the 
extent that this provision applies to checks payable by institutions 
located outside the Boston check processing region, it provides for 
availability in the same time as required for nonlocal checks under the 
temporary federal schedule, and thus is not preempted by the federal 
law.
    The Rhode Island statute does not specify whether it applies to 
deposits of checks at nonproprietary ATMs. Under the temporary schedule 
in Regulation CC, deposits at nonproprietary ATMs must be made available 
for withdrawal at the opening of the seventh business day after deposit. 
To the extent that the Rhode Island schedules provide for shorter 
availability for deposits at nonproprietary ATMs, they would supersede 
the temporary schedule.
    Exceptions to the availability schedules. The Rhode Island law 
contains exceptions for reason to doubt collectibility or ability of the 
depositor to reimburse the depositary bank, for new accounts, for large 
checks, and for foreign checks. In all cases where the federal 
availability schedule preempts the state schedule, only the federal 
exceptions will apply. For deposits that are covered by the state 
availability schedule, the state exceptions may be used to extend the 
state availability schedule to meet the federal availability schedule. 
Once the deposit is held up to the federal availability schedule limit 
under a state exception, the depositary bank may further extend the hold 
under any federal exception that can be applied to the deposit. Thus, if 
the state and federal availability schedules are the same for a 
particular deposit, both a state and a federal exception must be 
applicable to that deposit in order to extend the hold beyond the 
schedule. Any time a depositary bank invokes an exception to extend a 
hold beyond the time periods otherwise permitted by law, it must give 
notice of the extended hold to its customer, in accordance with 
Sec. 229.13(g) of Regulation CC.
    Business day/banking day. The Rhode Island statute defines business 
day as excluding Saturday, Sunday and legal holidays. This definition is 
preempted by the Regulation CC definitions of business day and banking 
day. Thus, for determining the permissible hold under the Rhode Island 
schedules that supersede the Regulation CC schedule, deposits are 
considered made on the specified number of business days following the 
banking day of deposit.

                               Disclosures

    The Rhode Island statute requires written notice to depositors of an 
institution's check hold policy and requires a notice on deposit slips. 
Regulation CC preempts state disclosure requirements concerning funds 
availability that relate to accounts that are inconsistent with the 
federal requirements. The state reuirements are different from, and 
therefore inconsistent with, the federal rules. (Sec. 229.20(c)(2)) 
Thus, Regulation CC preempts the Rhode Island disclosure requirements 
concerning funds availability.

                                Wisconsin

                               Background

    The Board has been requested, in accordance with Sec. 229.20(d) of 
Regulation CC (12 CFR part 229), to determine whether the Expedited 
Funds Availability Act (the Act) and subpart B (and in connection 
therewith, subpart A) of Regulation CC preempt the provisions of 
Wisconsin law concerning availability of funds. This preemption 
determination specifies those provisions of the Wisconsin funds 
availability law that are not preempted by the Act and Regulation CC. 
(See also the Board's preemption determination regarding the Uniform 
Commercial Code, section 4-213(5), pertaining to availability of cash 
deposits.)
    Wisconsin Statutes sections 404.213(4m), 215.136, and 186.117 
require Wisconsin banks, savings and loan associations, and credit 
unions, respectively, to make funds deposited in accounts available for 
withdrawal within specified time frames. Generally, checks drawn on the 
U.S. Treasury, the State of Wisconsin, or on a local government located 
in Wisconsin must be made available for withdrawal by the second day 
following deposit. (The law governing commercial banks determines 
availability based on banking day; the laws governing savings and loan 
associations and credit unions determine availability based on business 
days.) In-state and out-of-state checks must be made available for 
withdrawal within five days and eight days following deposit, 
respectively. Exceptions are provided for new accounts and reason to 
doubt collectibility. In addition, Wisconsin Statutes section 404.103 
permits commercial banks to vary

[[Page 553]]

these availability requirements by agreement.

                                Coverage

    Wisconsin law defines account, with respect to the rules governing 
commercial banks, as any account with a bank and includes a checking, 
time, interest or savings account (Wisconsin Statutes section 
404.104(1)(a)). The statutes relating to the funds availability 
requirements applicable to savings and loan associations and credit 
unions do not define the term account. The Federal preemption of state 
funds availability requirements applies only to accounts subject to 
Regulation CC, which generally consist of transaction accounts. 
Regulation CC does not affect the Wisconsin law to the extent that the 
state law applies to deposits in savings, time, and other accounts 
(including transaction accounts where the account holder is a bank, 
foreign bank, or the U.S. Treasury) that are not accounts under 
Regulation CC. (Note, however, that under Sec. 229.19(e) of Regulation 
CC, Holds on Other Funds, the federal availability schedules may apply 
to savings, time, and other accounts not defined as accounts under 
Regulation CC in certain circumstances.)
    The Wisconsin statute applies to items deposited in accounts. This 
term encompasses instruments that are not defined as checks in 
Regulation CC (Sec. 229.2(k)), such as nonnegotiable instruments, and 
are therefore not subject to Regulation CC's provisions governing funds 
availability. Those items that are subject to Wisconsin law but are not 
subject to Regulation CC will continue to be covered by the state 
availability schedules and exceptions.

                         Availability Schedules

    Temporary schedule. The Wisconsin statute requires that in-state 
nonlocal checks be made available for withdrawal not later than the 
fifth day following deposit (Wisconsin Statutes sections 
404.213(4m)(b)(2); 215.136(2)(b); 186.117(2)(b)). This time period is 
shorter than the seventh business day availability required for nonlocal 
checks under Sec. 229.11(c) of Regulation CC, although it is not shorter 
than the schedules for nonlocal checks set forth in Sec. 229.11(c)(2) 
and appendix B-1 of Regulation CC. Thus, the state schedule for in-state 
nonlocal checks supersedes the Federal schedule to the extent that it 
applies to an item payable by a Wisconsin bank that is defined as a 
nonlocal check under Regulation CC and is not subject to reduced 
schedules under Sec. 229.11(c)(2) and appendix B-1.
    Permanent Schedule. Under the Federal permanent availability 
schedule, nonlocal checks must be made available for withdrawal not 
later than the fifth business day following deposit. The fifth day 
availability requirement for in-state items in the Wisconsin statute 
supersedes the Regulation CC time period adjustment for withdrawal by 
cash or similar means in the permanent schedule, to the extent that the 
in-state checks are defined as nonlocal under Regulation CC.
    Next-day availability. Under the Wisconsin statute, the proceeds of 
state and local government checks must be made available for withdrawal 
by the second day following deposit, if the check is endorsed only by 
the person to whom it was issued (Wisconsin Statutes sections 
404.213(4m)(b)(1); 215.136(2)(b); and 186.117(2)(a)). Regulation CC 
requires next-day availability for these checks if they are (1) 
deposited in an account of a payee of the check, (2) deposited in a 
depositary bank located in the same state as the state or local 
government that issued the check, (3) deposited in person to an employee 
of the depositary bank, and (4) deposited with a special deposit slip, 
if the depositary bank informed its customers that use of such a slip is 
a condition to next-day availability. Under the Federal law, if a state 
or local government check is not deposited in person to an employee of 
the depositary bank, but meets the other conditions set forth in 
Sec. 229.10(c)(1)(iv), the funds must be made available for withdrawal 
not later than the second business day following deposit. The Wisconsin 
statute supersedes Regulation CC to the extent that the state law does 
not permit the use of a special deposit slip as a condition to receipt 
of second-day availability.
    Exceptions to the schedules. Wisconsin law provides exceptions to 
the state availability schedules for new accounts (those opened less 
than 90 days) and reason to doubt collectibility (Wisconsin Statutes 
sections 404.213(4m)(b); 215.136(2); and 186.117(2)). The state 
availability law also permits commercial banks to vary the funds 
availability requirements by agreement (Wisconsin Statute section 
404.103(1)). In all cases where the Federal schedule preempts the state 
schedule, only the Federal exceptions apply. For deposits that are 
covered by the state availability schedule (e.g., in-state nonlocal 
checks), a state exception must apply in order to extend the state 
availability schedule up to the Federal availability schedule. Once the 
deposit is held up to the Federal availability limit under a state 
exception, the depositary bank may further extend the hold only if a 
Federal exception can be applied to the deposit. Any time a depositary 
bank invokes an exception to extend a hold beyond the time periods 
otherwise permitted by law, it must give notice of the extended hold to 
its customer in accordance with Sec. 229.13(g) of Regulation CC.
    Business day/banking day. The definitions of business day and 
banking day in the Wisconsin statutes are preempted by the Regulation

[[Page 554]]

CC definition of those terms. For determining the permissible hold under 
the Wisconsin schedules that supersede the Regulation CC schedule, 
deposits are considered available for withdrawal on the specified number 
of business days following the banking day of deposit.
    Wisconsin law considers funds to be deposited, for the purpose of 
determining when they must be made available for withdrawal, when an 
item is ``received at the proof and transit facility of the 
depository.'' For the purposes of this preemption determination, funds 
are considered deposited under Wisconsin law in accordance with the 
rules set forth in Sec. 229.19(a) of Regulation CC.

                               Disclosures

    The Wisconsin statute does not require disclosure of a bank's funds 
availability policy. The state law does require, however, that a bank 
give notice to its customer if it extends the time within which funds 
will be available for withdrawal due to the bank's doubt as to the 
collectibility of the item (Wisconsin Statutes sections 404.213(4m)(b); 
215.136(2); and 186.117(2)).
    Regulation CC preempts state disclosure requirements concerning 
funds availability that relate to accounts that are inconsistent with 
the Federal requirements. The state requirement is different from, and 
therefore inconsistent with, the Federal disclosure rules 
(Sec. 229.20(c)(2)). Thus, the Wisconsin statute is preempted by 
Regulation CC to the extent that the state notice requirement applies to 
accounts as defined by Regulation CC. The Wisconsin requirement would 
continue to apply to accounts, such as savings and time accounts, not 
governed by the Regulation CC disclosure requirements.

[53 FR 32356, Aug. 24, 1988, as amended at 53 FR 44328, Nov. 2, 1988; 53 
FR 47524, Nov. 22, 1988; 53 FR 51748, Dec. 23, 1988; Reg. CC, 54 FR 
13838, Apr. 6, 1989; 55 FR 11358, Mar. 28, 1990; 60 FR 51703, Oct. 3, 
1995]



PART 230--TRUTH IN SAVINGS (REGULATION DD)--Table of Contents




Sec.
230.1  Authority, purpose, coverage, and effect on state laws.
230.2  Definitions.
230.3  General disclosure requirements.
230.4  Account disclosures.
230.5  Subsequent disclosures.
230.6  Periodic statement disclosures.
230.7  Payment of interest.
230.8  Advertising.
230.9  Enforcement and record retention.

Appendix A to Part 230--Annual Percentage Yield Calculation
Appendix B to Part 230--Model Clauses and Sample Forms
Appendix C to Part 230--Effect on State Laws
Appendix D to Part 230--Issuance of Staff Interpretations
Supplement I to Part 230--Official Staff Interpretations

    Authority: 12 U.S.C. 4301 et seq.
    Source: 57 FR 43376, Sept. 21, 1992, unless otherwise noted.



Sec. 230.1  Authority, purpose, coverage, and effect on state laws.

    (a) Authority. This part, known as Regulation DD, is issued by the 
Board of Governors of the Federal Reserve System to implement the Truth 
in Savings Act of 1991 (the act), contained in the Federal Deposit 
Insurance Corporation Improvement Act of 1991 (12 U.S.C. 4301 et seq., 
Pub. L. 102-242, 105 Stat. 2236). Information collection requirements 
contained in this part have been approved by the Office of Management 
and Budget under the provisions of 44 U.S.C. 3501 et seq. and have been 
assigned OMB No. 7100-0255.
    (b) Purpose. The purpose of this part is to enable consumers to make 
informed decisions about accounts at depository institutions. This part 
requires depository institutions to provide disclosures so that 
consumers can make meaningful comparisons among depository institutions.
    (c) Coverage. This part applies to depository institutions except 
for credit unions. In addition, the advertising rules in Sec. 230.8 of 
this part apply to any person who advertises an account offered by a 
depository institution, including deposit brokers.
    (d) Effect on state laws. State law requirements that are 
inconsistent with the requirements of the act and this part are 
preempted to the extent of the inconsistency. Additional information on 
inconsistent state laws and the procedures for requesting a preemption 
determination from the Board are set forth in appendix C of this part.



Sec. 230.2  Definitions.

    For purposes of this part, the following definitions apply:
    (a) Account means a deposit account at a depository institution that 
is held by or offered to a consumer. It includes time, demand, savings, 
and negotiable order of withdrawal accounts. For purposes of the 
advertising requirements

[[Page 555]]

in Sec. 230.8 of this part, the term also includes an account at a 
depository institution that is held by or on behalf of a deposit broker, 
if any interest in the account is held by or offered to a consumer.
    (b) Advertisement means a commercial message, appearing in any 
medium, that promotes directly or indirectly the availability of, or a 
deposit in, an account.
    (c) Annual percentage yield means a percentage rate reflecting the 
total amount of interest paid on an account, based on the interest rate 
and the frequency of compounding for a 365-day period and calculated 
according to the rules in appendix A of this part.
    (d) Average daily balance method means the application of a periodic 
rate to the average daily balance in the account for the period. The 
average daily balance is determined by adding the full amount of 
principal in the account for each day of the period and dividing that 
figure by the number of days in the period.
    (e) Board means the Board of Governors of the Federal Reserve 
System.
    (f) Bonus means a premium, gift, award, or other consideration worth 
more than $10 (whether in the form of cash, credit, merchandise, or any 
equivalent) given or offered to a consumer during a year in exchange for 
opening, maintaining, renewing, or increasing an account balance. The 
term does not include interest, other consideration worth $10 or less 
given during a year, the waiver or reduction of a fee, or the absorption 
of expenses.
    (g) Business day means a calendar day other than a Saturday, a 
Sunday, or any of the legal public holidays specified in 5 U.S.C. 
6103(a).
    (h) Consumer means a natural person who holds an account primarily 
for personal, family, or household purposes, or to whom such an account 
is offered. The term does not include a natural person who holds an 
account for another in a professional capacity.
    (i) Daily balance method means the application of a daily periodic 
rate to the full amount of principal in the account each day.
    (j) Depository institution and institution mean an institution 
defined in section 19(b)(1)(A)(i)-(vi) of the Federal Reserve Act (12 
U.S.C. 461), except credit unions defined in section 19(b)(1)(A)(iv).
    (k) Deposit broker means any person who is a deposit broker as 
defined in section 29(g) of the Federal Deposit Insurance Act (12 U.S.C. 
1831f(g)).
    (l) Fixed-rate account means an account for which the institution 
contracts to give at least 30 calendar days advance written notice of 
decreases in the interest rate.
    (m) Grace period means a period following the maturity of an 
automatically renewing time account during which the consumer may 
withdraw funds without being assessed a penalty.
    (n) Interest means any payment to a consumer or to an account for 
the use of funds in an account, calculated by application of a periodic 
rate to the balance. The term does not include the payment of a bonus or 
other consideration worth $10 or less given during a year, the waiver or 
reduction of a fee, or the absorption of expenses.
    (o) Interest rate means the annual rate of interest paid on an 
account which does not reflect compounding. For the purposes of the 
account disclosures in Sec. 230.4(b)(1)(i) of this part, the interest 
rate may, but need not, be referred to as the ``annual percentage rate'' 
in addition to being referred to as the ``interest rate.''
    (p) Passbook savings account means a savings account in which the 
consumer retains a book or other document in which the institution 
records transactions on the account.
    (q) Periodic statement means a statement setting forth information 
about an account (other than a time account or passbook savings account) 
that is provided to a consumer on a regular basis four or more times a 
year.
    (r) State means a state, the District of Columbia, the commonwealth 
of Puerto Rico, and any territory or possession of the United States.
    (s) Stepped-rate account means an account that has two or more 
interest rates that take effect in succeeding periods and are known when 
the account is opened.
    (t) Tiered-rate account means an account that has two or more 
interest rates that are applicable to specified balance levels.

[[Page 556]]

    (u) Time account means an account with a maturity of at least seven 
days in which the consumer generally does not have a right to make 
withdrawals for six days after the account is opened, unless the deposit 
is subject to an early withdrawal penalty of at least seven days' 
interest on amounts withdrawn.
    (v) Variable-rate account means an account in which the interest 
rate may change after the account is opened, unless the institution 
contracts to give at least 30 calendar days advance written notice of 
rate decreases.

[57 FR 43376, Sept. 21, 1992, as amended at 58 FR 15081, Mar. 19, 1993; 
59 FR 52658, Oct. 19, 1994]



Sec. 230.3  General disclosure requirements.

    (a) Form. Depository institutions shall make the disclosures 
required by Secs. 230.4 through 230.6 of this part, as applicable, 
clearly and conspicuously in writing and in a form the consumer may 
keep. Disclosures for each account offered by an institution may be 
presented separately or combined with disclosures for the institution's 
other accounts, as long as it is clear which disclosures are applicable 
to the consumer's account.
    (b) General. The disclosures shall reflect the terms of the legal 
obligation of the account agreement between the consumer and the 
depository institution. Disclosures may be made in languages other than 
English, provided the disclosures are available in English upon request.
    (c) Relation to Regulation E (12 CFR part 205). Disclosures required 
by and provided in accordance with the Electronic Fund Transfer Act (15 
U.S.C. 1601) and its implementing Regulation E (12 CFR part 205) that 
are also required by this part may be substituted for the disclosures 
required by this part.
    (d) Multiple consumers. If an account is held by more than one 
consumer, disclosures may be made to any one of the consumers.
    (e) Oral response to inquiries. In an oral response to a consumer's 
inquiry about interest rates payable on its accounts, the depository 
institution shall state the annual percentage yield. The interest rate 
may be stated in addition to the annual percentage yield. No other rate 
may be stated.
    (f) Rounding and accuracy rules for rates and yields--(1) Rounding. 
The annual percentage yield, the annual percentage yield earned, and the 
interest rate shall be rounded to the nearest one-hundredth of one 
percentage point (.01%) and expressed to two decimal places. For account 
disclosures, the interest rate may be expressed to more than two decimal 
places.
    (2) Accuracy. The annual percentage yield (and the annual percentage 
yield earned) will be considered accurate if not more that one-twentieth 
of one percentage point (.05%) above or below the annual percentage 
yield (and the annual percentage yield earned) determined in accordance 
with the rules in appendix A of this part.



Sec. 230.4  Account disclosures.

    (a) Delivery of account disclosures--(1) Account opening. A 
depository institution shall provide account disclosures to a consumer 
before an account is opened or a service is provided, whichever is 
earlier. An institution is deemed to have provided a service when a fee 
required to be disclosed is assessed. If the consumer is not present at 
the institution when the account is opened or the service is provided 
and has not already received the disclosures, the institution shall mail 
or deliver the disclosures no later than 10 business days after the 
account is opened or the service is provided, whichever is earlier.
    (2) Requests. (i) A depository institution shall provide account 
disclosures to a consumer upon request. If the consumer is not present 
at the institution when a request is made, the institution shall mail or 
deliver the disclosures within a reasonable time after it receives the 
request.
    (ii) In providing disclosures upon request, the institution may:
    (A) Specify an interest rate and annual percentage yield that were 
offered within the most recent seven calendar days; state that the rate 
and yield are accurate as of an identified date; and provide a telephone 
number consumers may call to obtain current rate information.

[[Page 557]]

    (B) State the maturity of a time account as a term rather than a 
date.
    (b) Content of account disclosures. Account disclosures shall 
include the following, as applicable:
    (1) Rate information--(i) Annual percentage yield and interest rate. 
The ``annual percentage yield'' and the ``interest rate,'' using those 
terms, and for fixed-rate accounts the period of time the interest rate 
will be in effect.
    (ii) Variable rates. For variable-rate accounts:
    (A) The fact that the interest rate and annual percentage yield may 
change;
    (B) How the interest rate is determined;
    (C) The frequency with which the interest rate may change; and
    (D) Any limitation on the amount the interest rate may change.
    (2) Compounding and crediting--(i) Frequency. The frequency with 
which interest is compounded and credited.
    (ii) Effect of closing an account. If consumers will forfeit 
interest if they close the account before accrued interest is credited, 
a statement that interest will not be paid in such cases.
    (3) Balance information--(i) Minimum balance requirements. Any 
minimum balance required to:
    (A) Open the account;
    (B) Avoid the imposition of a fee; or
    (C) Obtain the annual percentage yield disclosed.

Except for the balance to open the account, the disclosure shall state 
how the balance is determined for these purposes.
    (ii) Balance computation method. An explanation of the balance 
computation method specified in Sec. 230.7 of this part used to 
calculate interest on the account.
    (iii) When interest begins to accrue. A statement of when interest 
begins to accrue on noncash deposits.
    (4) Fees. The amount of any fee that may be imposed in connection 
with the account (or an explanation of how the fee will be determined) 
and the conditions under which the fee may be imposed.
    (5) Transaction limitations. Any limitations on the number or dollar 
amount of withdrawals or deposits.
    (6) Features of time accounts. For time accounts:
    (i) Time requirements. The maturity date.
    (ii) Early withdrawal penalties. A statement that a penalty will or 
may be imposed for early withdrawal, how it is calculated, and the 
conditions for its assessment.
    (iii) Withdrawal of interest prior to maturity. If compounding 
occurs during the term and interest may be withdrawn prior to maturity, 
a statement that the annual percentage yield assumes interest remains on 
deposit until maturity and that a withdrawal will reduce earnings. For 
accounts that do not compound interest on an annual or more frequent 
basis, with a stated maturity greater than one year that require 
interest payouts at least annually and that disclose an APY determined 
in accordance with section E of Appendix A of this part, a statement 
that interest cannot remain on deposit and that payout of interest is 
mandatory.
    (iv) Renewal policies. A statement of whether or not the account 
will renew automatically at maturity. If it will, a statement of whether 
or not a grace period will be provided and, if so, the length of that 
period must be stated. If the account will not renew automatically, a 
statement of whether interest will be paid after maturity if the 
consumer does not renew the account must be stated.
    (7) Bonuses. The amount or type of any bonus, when the bonus will be 
provided, and any minimum balance and time requirements to obtain the 
bonus.
    (c) Notice to existing account holders--(1) Notice of availability 
of disclosures. Depository institutions shall provide a notice to 
consumers who receive periodic statements and who hold existing accounts 
of the type offered by the institution on June 21, 1993. The notice 
shall be included on or with the first periodic statement sent on or 
after June 21, 1993 (or on or with the first periodic statement for a 
statement cycle beginning on or after that date). The notice shall state 
that consumers may request account disclosures containing terms, fees, 
and rate information for their account. In responding to

[[Page 558]]

such a request, institutions shall provide disclosures in accordance 
with paragraph (a)(2) of this section.
    (2) Alternative to notice. As an alternative to the notice described 
in paragraph (c)(1) of this section, institutions may provide account 
disclosures to consumers. The disclosures may be provided either with a 
periodic statement or separately, but must be sent no later than when 
the periodic statement described in paragraph (c)(1) is sent.

[57 FR 43376, Sept. 21, 1992, as amended at 58 FR 15081, Mar. 19, 1993; 
Reg. DD, 60 FR 5130, Jan. 26, 1995]



Sec. 230.5  Subsequent disclosures.

    (a) Change in terms--(1) Advance notice required. A depository 
institution shall give advance notice to affected consumers of any 
change in a term required to be disclosed under Sec. 230.4(b) of this 
part if the change may reduce the annual percentage yield or adversely 
affect the consumer. The notice shall include the effective date of the 
change. The notice shall be mailed or delivered at least 30 calendar 
days before the effective date of the change.
    (2) No notice required. No notice under this section is required 
for:
    (i) Variable-rate changes. Changes in the interest rate and 
corresponding changes in the annual percentage yield in variable-rate 
accounts.
    (ii) Check printing fees. Changes in fees assessed for check 
printing.
    (iii) Short-term time accounts. Changes in any term for time 
accounts with maturities of one month or less.
    (b) Notice before maturity for time accounts longer than one month 
that renew automatically. For time accounts with a maturity longer than 
one month that renew automatically at maturity, institutions shall 
provide the disclosures described below before maturity. The disclosures 
shall be mailed or delivered at least 30 calendar days before maturity 
of the existing account. Alternatively, the disclosures may be mailed or 
delivered at least 20 calendar days before the end of the grace period 
on the existing account, provided a grace period of at least five 
calendar days is allowed.
    (1) Maturities of longer than one year. If the maturity is longer 
than one year, the institution shall provide account disclosures set 
forth in Sec. 230.4(b) of this part for the new account, along with the 
date the existing account matures. If the interest rate and annual 
percentage yield that will be paid for the new account are unknown when 
disclosures are provided, the institution shall state that those rates 
have not yet been determined, the date when they will be determined, and 
a telephone number consumers may call to obtain the interest rate and 
the annual percentage yield that will be paid for the new account.
    (2) Maturities of one year or less but longer than one month. If the 
maturity is one year or less but longer than one month, the institution 
shall either:
    (i) Provide disclosures as set forth in paragraph (b)(1) of this 
section; or
    (ii) Disclose to the consumer:
    (A) The date the existing account matures and the new maturity date 
if the account is renewed;
    (B) The interest rate and the annual percentage yield for the new 
account if they are known (or that those rates have not yet been 
determined, the date when they will be determined, and a telephone 
number the consumer may call to obtain the interest rate and the annual 
percentage yield that will be paid for the new account); and
    (C) Any difference in the terms of the new account as compared to 
the terms required to be disclosed under Sec. 230.4(b) of this part for 
the existing account.
    (c) Notice for time accounts one month or less that renew 
automatically. For time accounts with a maturity one month or less that 
renew automatically at maturity, institutions shall disclose any 
difference in the terms of the new account as compared to the terms 
required to be disclosed under Sec. 230.4(b) of this part for the 
existing account, other than a change in the interest rate and 
corresponding change in the annual percentage yield. The notice shall be 
mailed or delivered within a reasonable time after the renewal.
    (d) Notice before maturity for time accounts longer than one year 
that do not renew automatically. For time accounts with a maturity 
longer than one year that do not renew automatically at maturity, 
institutions shall disclose to consumers the maturity date and

[[Page 559]]

whether interest will be paid after maturity. The disclosures shall be 
mailed or delivered at least 10 calendar days before maturity of the 
existing account.

[57 FR 43376, Sept. 21, 1992, as amended at 58 FR 15081, Mar. 19, 1993]



Sec. 230.6  Periodic statement disclosures.

    (a) General rule. If a depository institution mails or delivers a 
periodic statement, the statement shall include the following 
disclosures:
    (1) Annual percentage yield earned. The ``annual percentage yield 
earned'' during the statement period, using that term, calculated 
according to the rules in Appendix A of this part.
    (2) Amount of interest. The dollar amount of interest earned during 
the statement period.
    (3) Fees imposed. Fees required to be disclosed under 
Sec. 230.4(b)(4) of this part that were debited to the account during 
the statement period. The fees shall be itemized by type and dollar 
amounts.
    (4) Length of period. The total number of days in the statement 
period, or the beginning and ending dates of the period.
    (b) Special rule for average daily balance method. In making the 
disclosures described in paragraph (a) of this section, institutions 
that use the average daily balance method and that calculate interest 
for a period other than the statement period shall calculate and 
disclose the annual percentage yield earned and amount of interest 
earned based on that period rather than the statement period. The 
information in paragraph (a)(4) of this section shall be stated for that 
period as well as for the statement period.

[57 FR 43376, Sept. 21, 1992, as amended at 57 FR 46480, Oct. 9, 1992]



Sec. 230.7  Payment of interest.

    (a) Permissible methods--(1) Balance on which interest is 
calculated. Institutions shall calculate interest on the full amount of 
principal in an account for each day by use of either the daily balance 
method or the average daily balance method.\1\
---------------------------------------------------------------------------

    \1\ Institutions shall calculate interest by use of a daily rate of 
at least \1/365\ of the interest rate. In a leap year a daily rate of 
\1/366\ of the interest rate may be used.
---------------------------------------------------------------------------

    (2) Determination of minimum balance to earn interest. An 
institution shall use the same method to determine any minimum balance 
required to earn interest as it uses to determine the balance on which 
interest is calculated. An institution may use an additional method that 
is unequivocally beneficial to the consumer.
    (b) Compounding and crediting policies. This section does not 
require institutions to compound or credit interest at any particular 
frequency.
    (c) Date interest begins to accrue. Interest shall begin to accrue 
not later than the business day specified for interest-bearing accounts 
in section 606 of the Expedited Funds Availability Act (12 U.S.C. 4005 
et seq.) and implementing Regulation CC (12 CFR part 229). Interest 
shall accrue until the day funds are withdrawn.



Sec. 230.8  Advertising.

    (a) Misleading or inaccurate advertisements. An advertisement shall 
not be misleading or inaccurate and shall not misrepresent a depository 
institution's deposit contract. An advertisement shall not refer to or 
describe an account as ``free'' or ``no cost'' (or contain a similar 
term) if any maintenance or activity fee may be imposed on the account. 
The word ``profit'' shall not be used in referring to interest paid on 
an account.
    (b) Permissible rates. If an advertisement states a rate of return, 
it shall state the rate as an ``annual percentage yield'' using that 
term. (The abbreviation ``APY'' may be used provided the term ``annual 
percentage yield'' is stated at least once in the advertisement.) The 
advertisement shall not state any other rate, except that the ``interest 
rate,'' using that term, may be stated in conjunction with, but not more 
conspicuously than, the annual percentage yield to which it relates.
    (c) When additional disclosures are required. Except as provided in 
paragraph

[[Page 560]]

(e) of this section, if the annual percentage yield is stated in an 
advertisement, the advertisement shall state the following information, 
to the extent applicable, clearly and conspicuously:
    (1) Variable rates. For variable-rate accounts, a statement that the 
rate may change after the account is opened.
    (2) Time annual percentage yield is offered. The period of time the 
annual percentage yield will be offered, or a statement that the annual 
percentage yield is accurate as of a specified date.
    (3) Minimum balance. The minimum balance required to obtain the 
advertised annual percentage yield. For tiered-rate accounts, the 
minimum balance required for each tier shall be stated in close 
proximity and with equal prominence to the applicable annual percentage 
yield.
    (4) Minimum opening deposit. The minimum deposit required to open 
the account, if it is greater than the minimum balance necessary to 
obtain the advertised annual percentage yield.
    (5) Effect of fees. A statement that fees could reduce the earnings 
on the account.
    (6) Features of time accounts. For time accounts:
    (i) Time requirements. The term of the account.
    (ii) Early withdrawal penalties: A statement that a penalty will or 
may be imposed for early withdrawal.
    (iii) Required interest payouts. For noncompounding time accounts 
with a stated maturity greater than one year that do not compound 
interest on an annual or more frequent basis, that require interest 
payouts at least annually, and that disclose an APY determined in 
accordance with section E of Appendix A of this part, a statement that 
interest cannot remain on deposit and that payout of interest is 
mandatory.
    (d) Bonuses. Except as provided in paragraph (e) of this section, if 
a bonus is stated in an advertisement, the advertisement shall state the 
following information, to the extent applicable, clearly and 
conspicuously:
    (1) The ``annual percentage yield,'' using that term;
    (2) The time requirement to obtain the bonus;
    (3) The minimum balance required to obtain the bonus;
    (4) The minimum balance required to open the account, if it is 
greater than the minimum balance necessary to obtain the bonus; and
    (5) When the bonus will be provided.
    (e) Exemption for certain advertisements--(1) Certain media. If an 
advertisement is made through one of the following media, it need not 
contain the information in paragraphs (c)(1), (c)(2), (c)(4), (c)(5), 
(c)(6)(ii), (d)(4), and (d)(5) of this section:
    (i) Broadcast or electronic media, such as television or radio;
    (ii) Outdoor media, such as billboards; or
    (iii) Telephone response machines.
    (2) Indoor signs. (i) Signs inside the premises of a depository 
institution (or the premises of a deposit broker) are not subject to 
paragraphs (b), (c), (d), or (e)(1) of this section unless they face 
outside the premises and can reasonably be viewed by a consumer only 
from outside the premises.
    (ii) If a sign exempt by paragraph (e)(2) of this section states a 
rate of return, it shall:
    (A) State the rate as an ``annual percentage yield,'' using that 
term or the term ``APY.'' The sign shall not state any other rate, 
except that the interest rate may be stated in conjunction with the 
annual percentage yield to which it relates.
    (B) Contain a statement advising consumers to contact an employee 
for further information about applicable fees and terms.

[57 FR 43376, Sept. 21, 1992, as amended at 58 FR 15081, Mar. 19, 1993; 
Reg. DD, 60 FR 5130, Jan. 26, 1995]



Sec. 230.9  Enforcement and record retention.

    (a) Administrative enforcement. Section 270 of the act contains the 
provisions relating to administrative sanctions for failure to comply 
with the requirements of the act and this part. Compliance is enforced 
by the agencies listed in that section.
    (b) Civil liability. Section 271 of the act contains the provisions 
relating to civil liability for failure to comply

[[Page 561]]

with the requirements of the act and this part.
    (c) Record retention. A depository institution shall retain evidence 
of compliance with this part for a minimum of two years after the date 
disclosures are required to be made or action is required to be taken. 
The administrative agencies responsible for enforcing this part may 
require depository institutions under their jurisdiction to retain 
records for a longer period if necessary to carry out their enforcement 
responsibilities under section 270 of the act.

       Appendix A to Part 230--Annual Percentage Yield Calculation

    The annual percentage yield measures the total amount of interest 
paid on an account based on the interest rate and the frequency of 
compounding.\1\ The annual percentage yield is expressed as an 
annualized rate, based on a 365-day year.\2\ Part I of this appendix 
discusses the annual percentage yield calculations for account 
disclosures and advertisements, while Part II discusses annual 
percentage yield earned calculations for periodic statements.
---------------------------------------------------------------------------

    \1\ The annual percentage yield reflects only interest and does not 
include the value of any bonus (or other consideration worth $10 or 
less) that may be provided to the consumer to open, maintain, increase 
or renew an account. Interest or other earnings are not to be included 
in the annual percentage yield if such amounts are determined by 
circumstances that may or may not occur in the future.
    \2\ Institutions may calculate the annual percentage yield based on 
a 365-day or a 366-day year in a leap year.
---------------------------------------------------------------------------

Part I. Annual Percentage Yield for Account Disclosures and Advertising 
                                Purposes

    In general, the annual percentage yield for account disclosures 
under Secs. 230.4 and 230.5 and for advertising under Sec. 230.8 is an 
annualized rate that reflects the relationship between the amount of 
interest that would be earned by the consumer for the term of the 
account and the amount of principal used to calculate that interest. 
Special rules apply to accounts with tiered and stepped interest rates, 
and to certain time accounts with a stated maturity greater than one 
year.

                            A. General Rules

    Except as provided in Part I.E. of this appendix, the annual 
percentage yield shall be calculated by the formula shown below. 
Institutions shall calculate the annual percentage yield based on the 
actual number of days in the term of the account. For accounts without a 
stated maturity date (such as a typical savings or transaction account), 
the calculation shall be based on an assumed term of 365 days. In 
determining the total interest figure to be used in the formula, 
institutions shall assume that all principal and interest remain on 
deposit for the entire term and that no other transactions (deposits or 
withdrawals) occur during the term.\3\ For time accounts that are 
offered in multiples of months, institutions may base the number of days 
on either the actual number of days during the applicable period, or the 
number of days that would occur for any actual sequence of that many 
calendar months. If institutions choose to use the latter rule, they 
must use the same number of days to calculate the dollar amount of 
interest earned on the account that is used in the annual percentage 
yield formula (where ``Interest'' is divided by ``Principal'').
---------------------------------------------------------------------------

    \3\ This assumption shall not be used if an institution requires, as 
a condition of the account, that consumers withdraw interest during the 
term. In such a case, the interest (and annual percentage yield 
calculation) shall reflect that requirement.
---------------------------------------------------------------------------

    The annual percentage yield is calculated by use of the following 
general formula (``APY'' is used for convenience in the formulas):

APY=100 [(1+Interest/Principal)(365/Days in term)-1]
    ``Principal'' is the amount of funds assumed to have been deposited 
at the beginning of the account.
    ``Interest'' is the total dollar amount of interest earned on the 
Principal for the term of the account.
    ``Days in term'' is the actual number of days in the term of the 
account. When the ``days in term'' is 365 (that is, where the stated 
maturity is 365 days or where the account does not have a stated 
maturity), the annual percentage yield can be calculated by use of the 
following simple formula:

APY=100 (Interest/Principal)

                                Examples

    (1) If an institution pays $61.68 in interest for a 365-day year on 
$1,000 deposited into a NOW account, using the general formula above, 
the annual percentage yield is 6.17%:

APY=100[(1+61.68/1,000) (365/365) -1]
APY=6.17%

    Or, using the simple formula above (since, as an account without a 
stated term, the term is deemed to be 365 days):

APY=100(61.68/1,000)
APY=6.17%

    (2) If an institution pays $30.37 in interest on a $1,000 six-month 
certificate of deposit

[[Page 562]]

(where the six-month period used by the institution contains 182 days), 
using the general formula above, the annual percentage yield is 6.18%:

APY=100[(1+30.37/1,000) (365/182) -1]
APY=6.18%

 B. Stepped-Rate Accounts (Different Rates Apply in Succeeding Periods)

    For accounts with two or more interest rates applied in succeeding 
periods (where the rates are known at the time the account is opened), 
an institution shall assume each interest rate is in effect for the 
length of time provided for in the deposit contract.

                                Examples

    (1) If an institution offers a $1,000 6-month certificate of deposit 
on which it pays a 5% interest rate, compounded daily, for the first 
three months (which contain 91 days), and a 5.5% interest rate, 
compounded daily, for the next three months (which contain 92 days), the 
total interest for six months is $26.68 and, using the general formula 
above, the annual percentage yield is 5.39%:

APY=100[(1+26.68/1,000) (365/183) -1]
APY=5.39%

    (2) If an institution offers a $1,000 two-year certificate of 
deposit on which it pays a 6% interest rate, compounded daily, for the 
first year, and a 6.5% interest rate, compounded daily, for the next 
year, the total interest for two years is $133.13, and, using the 
general formula above, the annual percentage yield is 6.45%:

APY=100[(1+133.13/1,000) (365/730) -1]
APY=6.45%

                        C. Variable-Rate Accounts

    For variable-rate accounts without an introductory premium or 
discounted rate, an institution must base the calculation only on the 
initial interest rate in effect when the account is opened (or 
advertised), and assume that this rate will not change during the year.
    Variable-rate accounts with an introductory premium (or discount) 
rate must be calculated like a stepped-rate account. Thus, an 
institution shall assume that: (1) The introductory interest rate is in 
effect for the length of time provided for in the deposit contract; and 
(2) the variable interest rate that would have been in effect when the 
account is opened or advertised (but for the introductory rate) is in 
effect for the remainder of the year. If the variable rate is tied to an 
index, the index-based rate in effect at the time of disclosure must be 
used for the remainder of the year. If the rate is not tied to an index, 
the rate in effect for existing consumers holding the same account (who 
are not receiving the introductory interest rate) must be used for the 
remainder of the year.
    For example, if an institution offers an account on which it pays a 
7% interest rate, compounded daily, for the first three months (which, 
for example, contain 91 days), while the variable interest rate that 
would have been in effect when the account was opened was 5%, the total 
interest for a 365-day year for a $1,000 deposit is $56.52 (based on 91 
days at 7% followed by 274 days at 5%). Using the simple formula, the 
annual percentage yield is 5.65%:

APY=100(56.52/1,000)
APY=5.65%

  D. Tiered-Rate Accounts (Different Rates Apply to Specified Balance 
                                 Levels)

    For accounts in which two or more interest rates paid on the account 
are applicable to specified balance levels, the institution must 
calculate the annual percentage yield in accordance with the method 
described below that it uses to calculate interest. In all cases, an 
annual percentage yield (or a range of annual percentage yields, if 
appropriate) must be disclosed for each balance tier.
    For purposes of the examples discussed below, assume the following:

------------------------------------------------------------------------
 Interest                                                               
   rate                Deposit balance required to earn rate            
(percent)                                                               
------------------------------------------------------------------------
5.25.....  Up to but not exceeding $2,500.                              
5.50.....  Above $2,500 but not exceeding $15,000.                      
5.75.....  Above $15,000.                                               
------------------------------------------------------------------------

    Tiering Method A. Under this method, an institution pays on the full 
balance in the account the stated interest rate that corresponds to the 
applicable deposit tier. For example, if a consumer deposits $8,000, the 
institution pays the 5.50% interest rate on the entire $8,000.
    When this method is used to determine interest, only one annual 
percentage yield will apply to each tier. Within each tier, the annual 
percentage yield will not vary with the amount of principal assumed to 
have been deposited.
    For the interest rates and deposit balances assumed above, the 
institution will state three annual percentage yields--one corresponding 
to each balance tier. Calculation of each annual percentage yield is 
similar for this type of account as for accounts with a single interest 
rate. Thus, the calculation is based on the total amount of interest 
that would be received by the consumer for each tier of the account for 
a year and the principal assumed to have been deposited to earn that 
amount of interest.
    First tier. Assuming daily compounding, the institution will pay 
$53.90 in interest on a $1,000 deposit. Using the general formula, for

[[Page 563]]

the first tier, the annual percentage yield is 5.39%:

APY=100[(1+53.90/1,000) (365/365) -1]
APY=5.39%

    Using the simple formula:

APY=100(53.90/1,000)
APY=5.39%

    Second tier. The institution will pay $452.29 in interest on an 
$8,000 deposit. Thus, using the simple formula, the annual percentage 
yield for the second tier is 5.65%:

APY=100(452.29/8,000)
APY=5.65%

    Third tier. The institution will pay $1,183.61 in interest on a 
$20,000 deposit. Thus, using the simple formula, the annual percentage 
yield for the third tier is 5.92%:

APY=100(1,183.61/20,000)
APY=5.92%

    Tiering Method B. Under this method, an institution pays the stated 
interest rate only on that portion of the balance within the specified 
tier. For example, if a consumer deposits $8,000, the institution pays 
5.25% on $2,500 and 5.50% on $5,500 (the difference between $8,000 and 
the first tier cut-off of $2,500).
    The institution that computes interest in this manner must provide a 
range that shows the lowest and the highest annual percentage yields for 
each tier (other than for the first tier, which, like the tiers in 
Method A, has the same annual percentage yield throughout). The low 
figure for an annual percentage yield range is calculated based on the 
total amount of interest earned for a year assuming the minimum 
principal required to earn the interest rate for that tier. The high 
figure for an annual percentage yield range is based on the amount of 
interest the institution would pay on the highest principal that could 
be deposited to earn that same interest rate. If the account does not 
have a limit on the maximum amount that can be deposited, the 
institution may assume any amount.
    For the tiering structure assumed above, the institution would state 
a total of five annual percentage yields--one figure for the first tier 
and two figures stated as a range for the other two tiers.
    First tier. Assuming daily compounding, the institution would pay 
$53.90 in interest on a $1,000 deposit. For this first tier, using the 
simple formula, the annual percentage yield is 5.39%:

APY=100(53.90/1,000)
APY=5.39%

    Second tier. For the second tier, the institution would pay between 
$134.75 and $841.45 in interest, based on assumed balances of $2,500.01 
and $15,000, respectively. For $2,500.01, interest would be figured on 
$2,500 at 5.25% interest rate plus interest on $.01 at 5.50%. For the 
low end of the second tier, therefore, the annual percentage yield is 
5.39%, using the simple formula:

APY=100(134.75/2,500)
APY=5.39%

    For $15,000, interest is figured on $2,500 at 5.25% interest rate 
plus interest on $12,500 at 5.50% interest rate. For the high end of the 
second tier, the annual percentage yield, using the simple formula, is 
5.61%:

APY=100(841.45/15,000)
APY=5.61%

    Thus, the annual percentage yield range for the second tier is 5.39% 
to 5.61%.
    Third tier. For the third tier, the institution would pay $841.45 in 
interest on the low end of the third tier (a balance of $15,000.01). For 
$15,000.01, interest would be figured on $2,500 at 5.25% interest rate, 
plus interest on $12,500 at 5.50% interest rate, plus interest on $.01 
at 5.75% interest rate. For the low end of the third tier, therefore, 
the annual percentage yield (using the simple formula) is 5.61%:

APY=100 (841.45/15,000)
APY=5.61%

    Since the institution does not limit the account balance, it may 
assume any maximum amount for the purposes of computing the annual 
percentage yield for the high end of the third tier. For an assumed 
maximum balance amount of $100,000, interest would be figured on $2,500 
at 5.25% interest rate, plus interest on $12,500 at 5.50% interest rate, 
plus interest on $85,000 at 5.75% interest rate. For the high end of the 
third tier, therefore, the annual percentage yield, using the simple 
formula, is 5.87%.

APY=100 (5,871.79/100,000)
APY=5.87%

    Thus, the annual percentage yield range that would be stated for the 
third tier is 5.61% to 5.87%.
    If the assumed maximum balance amount is $1,000,000 instead of 
$100,000, the institution would use $985,000 rather than $85,000 in the 
last calculation. In that case, for the high end of the third tier the 
annual percentage yield, using the simple formula, is 5.91%:

APY=100 (59134.22/1,000,000)
APY=5.91%

    Thus, the annual percentage yield range that would be stated for the 
third tier is 5.61% to 5.91%.

 E. Time Accounts with a Stated Maturity Greater than One Year that Pay 
                       Interest At Least Annually

    1. For time accounts with a stated maturity greater than one year 
that do not compound interest on an annual or more frequent basis, and 
that require the consumer to withdraw interest at least annually, the 
annual percentage yield may be disclosed as equal to the interest rate.

[[Page 564]]

                                 Example

    (1) If an institution offers a $1,000 two-year certificate of 
deposit that does not compound and that pays out interest semi-annually 
solely by check or transfer, at a 6.00% interest rate the annual 
percentage yield may be disclosed as 6.00%.
    (2) For time accounts covered by this paragraph that are also 
stepped-rate accounts, the annual percentage yield may be disclosed as 
equal to the composite interest rate.

                                 Example

    (1) If an institution offers a $1,000 three-year certificate of 
deposit that does not compound and that pays out interest annually 
solely by check or transfer, at a 5.00% interest rate for the first 
year, 6.00% interest rate for the second year, and 7.00% interest rate 
for the third year, the institution may compute the composite interest 
rate and APY as follows:
    (a) Multiply each interest rate by the number of days it will be in 
effect;
    (b) Add these figures together; and
    (c) Divide by the total number of days in the term.
    (2) Applied to the example, the products of the interest rates and 
days the rates are in effect are (5.00% x 365 days) 1825, (6.00% x 365 
days) 2190, and (7.00% x 365 days) 2555 days, respectively. The sum of 
these products, 6570 days, is divided by 1095, the total number of days 
in the term. The composite interest rate and APY are both 6.00%.

     Part II. Annual Percentage Yield Earned for Periodic Statements

    The annual percentage yield earned for periodic statements under 
Sec. 230.6(a) is an annualized rate that reflects the relationship 
between the amount of interest actually earned on the consumer's account 
during the statement period and the average daily balance in the account 
for the statement period. Pursuant to Sec. 230.6(b), however, if an 
institution uses the average daily balance method and calculates 
interest for a period other than the statement period, the annual 
percentage yield earned shall reflect the relationship between the 
amount of interest earned and the average daily balance in the account 
for that other period.
    The annual percentage yield earned shall be calculated by using the 
following formulas (``APY Earned'' is used for convenience in the 
formulas):
    A. General formula.
APY Earned=100 [(1+Interest earned/Balance)(365/Days in period)-1]

    ``Balance'' is the average daily balance in the account for the 
period.
    ``Interest earned'' is the actual amount of interest earned on the 
account for the period.
    ``Days in period'' is the actual number of days for the period.

                                Examples

    (1) Assume an institution calculates interest for the statement 
period (and uses either the daily balance or the average daily balance 
method), and the account has a balance of $1,500 for 15 days and a 
balance of $500 for the remaining 15 days of a 30-day statement period. 
The average daily balance for the period is $1,000. The interest earned 
(under either balance computation method) is $5.25 during the period. 
The annual percentage yield earned (using the formula above) is 6.58%:

APY Earned=100 [(1+5.25/1,000)(365/30)-1]
APY Earned=6.58%

    (2) Assume an institution calculates interest on the average daily 
balance for the calendar month and provides periodic statements that 
cover the period from the 16th of one month to the 15th of the next 
month. The account has a balance of $2,000 September 1 through September 
15 and a balance of $1,000 for the remaining 15 days of September. The 
average daily balance for the month of September is $1,500, which 
results in $6.50 in interest earned for the month.The annual percentage 
yield earned for the month of September would be shown on the periodic 
statement covering September 16 through October 15. The annual 
percentage yield earned (using the formula above) is 5.40%:

APY Earned=100 [(6.50/1,500)(365/30)-1]
APY Earned=5.40%

    (3) Assume an institution calculates interest on the average daily 
balance for a quarter (for example, the calendar months of September 
through November), and provides monthly periodic statements covering 
calendar months. The account has a balance of $1,000 throughout the 30 
days of September, a balance of $2,000 throughout the 31 days of 
October, and a balance of $3,000 throughout the 30 days of November. The 
average daily balance for the quarter is $2,000, which results in $21 in 
interest earned for the quarter. The annual percentage yield earned 
would be shown on the periodic statement for November. The annual 
percentage yield earned (using the formula above) is 4.28%:

APY Earned=100 [(1+21/2,000)(365/91)-1]
APY Earned=4.28%
    B. Special formula for use where periodic statement is sent more 
often than the period for which interest is compounded.
    Institutions that use the daily balance method to accrue interest 
and that issue periodic statements more often than the period for which 
interest is compounded shall use the following special formula:


[[Page 565]]

[GRAPHIC] [TIFF OMITTED] TC27SE91.048



    The following definition applies for use in this formula (all other 
terms are defined under Part II):

``Compounding'' is the number of days in each compounding period.

    Assume an institution calculates interest for the statement period 
using the daily balance method, pays a 5.00% interest rate, compounded 
annually, and provides periodic statements for each monthly cycle. The 
account has a daily balance of $1,000 for a 30-day statement period. The 
interest earned is $4.11 for the period, and the annual percentage yield 
earned (using the special formula above) is 5.00%:

[GRAPHIC] [TIFF OMITTED] TC27SE91.049


APY Earned=5.00%

[57 FR 43376, Sept. 21, 1992, as amended at 57 FR 46480, Oct. 9, 1992; 
58 FR 15082, Mar. 19, 1993; 60 FR 5130, Jan. 26, 1995]

         Appendix B to Part 230--Model Clauses and Sample Forms

                            Table of contents

B-1--Model Clauses for Account Disclosures (Section 230.4(b))
B-2--Model Clauses for Change in Terms (Section 230.5(a))
B-3--Model Clauses for Pre-Maturity Notices for Time Accounts (Section 
          230.5(b)(2) and 230.5(d))
B-4--Sample Form (Multiple Accounts)
B-5--Sample Form (Now Account)
B-6--Sample Form (Tiered Rate Money Market Account)
B-7--Sample Form (Certificate of Deposit)
B-8--Sample Form (Certificate of Deposit Advertisement)
B-9--Sample Form (Money Market Account Advertisement)

               B-1--Model Clauses for Account Disclosures

    (a) Rate information
    (i) Fixed-rate accounts
    The interest rate on your account is ____% with an annual percentage 
yield of ____%. You will be paid this rate [for (time period)/until 
(date)/ for at least 30 calendar days].
    (ii) Variable-rate accounts
    The interest rate on your account is ____% with an annual percentage 
yield of ____%.
    Your interest rate and annual percentage yield may change.

                          Determination of Rate

    The interest rate on your account is based on (name of index) [plus/
minus a margin of ________].

        or

    At our discretion, we may change the interest rate on your account.

                        Frequency of Rate Changes

    We may change the interest rate on your account [every (time 
period)/at any time].

                       Limitations on Rate Changes

    The interest rate for your account will never change by more than 
____% each (time period).
    The interest rate will never be [less/more] than ____%.

        or

    The interest rate will never [exceed____% above/drop more than ____% 
below] the interest rate initially disclosed to you.
    (iii) Stepped-rate accounts
    The initial interest rate for your account is ____%. You will be 
paid this rate [for (time period)/until (date)]. After that time, the 
interest rate for your account will be ____%, and you will be paid this 
rate [for (time period)/until (date)]. The annual percentage yield for 
your account is ____%.
    (iv) Tiered-rate accounts

                            Tiering Method A

     If your [daily balance/average daily balance] is $____ or 
more, the interest rate paid on the entire balance in your account will 
be ____% with an annual percentage yield of ____%.
     If your [daily balance/average daily balance] is more than 
$____, but less than $____,

[[Page 566]]

the interest rate paid on the entire balance in your account will be 
____% with an annual percentage yield of ____%.
     If your [daily balance/average daily balance] is $____ or 
less, the interest rate paid on the entire balance will be ____% with an 
annual percentage yield of ____%.

                            Tiering Method B

     An interest rate of ____% will be paid only for that 
portion of your [daily balance/average daily balance] that is greater 
than $____. The annual percentage yield for this tier will range from 
____% to ____%, depending on the balance in the account.
     An interest rate of ____% will be paid only for that 
portion of your [daily balance/average daily balance] that is greater 
than $____, but less than $____. The annual percentage yield for this 
tier will range from ____% to ____%, depending on the balance in the 
account.
     If your [daily balance/average daily balance] is $____ or 
less, the interest rate paid on the entire balance will be ____% with an 
annual percentage yield of ____%.
    (b) Compounding and crediting

                              (i) Frequency

    Interest will be compounded [on a ____ basis/every (time period)]. 
Interest will be credited to your account [on a ____ basis/every (time 
period)].
    (ii) Effect of closing an account
    If you close your account before interest is credited, you will not 
receive the accrued interest.
    (c) Minimum balance requirements
    (i) To open the account
    You must deposit $______ to open this account.
    (ii) To avoid imposition of fees
    A minimum balance fee of $______ will be imposed every (time period) 
if the balance in the account falls below $______ any day of the (time 
period).
    A minimum balance fee of $______ will be imposed every (time period) 
if the average daily balance for the (time period) falls below $______. 
The average daily balance is calculated by adding the principal in the 
account for each day of the period and dividing that figure by the 
number of days in the period.
    (iii) To obtain the annual percentage yield disclosed
    You must maintain a minimum balance of $______ in the account each 
day to obtain the disclosed annual percentage yield.
    You must maintain a minimum average daily balance of $______ to 
obtain the disclosed annual percentage yield. The average daily balance 
is calculated by adding the principal in the account for each day of the 
period and dividing that figure by the number of days in the period.
    (d) Balance computation method
    (i) Daily balance method
    We use the daily balance method to calculate the interest on your 
account. This method applies a daily periodic rate to the principal in 
the account each day.
    (ii) Average daily balance method
    We use the average daily balance method to calculate interest on 
your account. This method applies a periodic rate to the average daily 
balance in the account for the period. The average daily balance is 
calculated by adding the principal in the account for each day of the 
period and dividing that figure by the number of days in the period.
    (e) Accrual of interest on noncash deposits
    Interest begins to accrue no later than the business day we receive 
credit for the deposit of noncash items (for example, checks).

        or

    Interest begins to accrue on the business day you deposit noncash 
items (for example, checks).
    (f) Fees
    The following fees may be assessed against your account:
    ______________________________$________
    ______________________________$________
    ______________________________$________
    ________(conditions for imposing fee)$________
    __________________________________% of ________.

    (g) Transaction limitations
    The minimum amount you may [withdraw/write a check for] is $______.
    You may make ________ [deposits into/withdrawals from] your account 
each (time period).
    You may not make [deposits into/withdrawals from] your account until 
the maturity date.
    (h) Disclosures relating to time accounts
    (i) Time requirements
    Your account will mature on (date).
    Your account will mature in (time period).
    (ii) Early withdrawal penalties
    We [will/may] impose a penalty if you withdraw [any/all] of the 
[deposited funds/principal] before the maturity date. The fee imposed 
will equal ______ days/week[s]/month[s] of interest.

      or

    We [will/may] impose a penalty of $______ if you withdraw [any/all] 
of the [deposited funds/principal] before the maturity date.
    If you withdraw some of your funds before maturity, the interest 
rate for the remaining funds in your account will be ______% with an 
annual percentage yield of ______%.
    (iii) Withdrawal of interest prior to maturity
    The annual percentage yield assumes interest will remain on deposit 
until maturity. A withdrawal will reduce earnings.

[[Page 567]]

    (iv) Renewal policies
    (1) Automatically renewable time accounts
    This account will automatically renew at maturity.
    You will have [______ calendar/business] days after the maturity 
date to withdraw funds without penalty.

      or

    There is no grace period following the maturity of this account to 
withdraw funds without penalty.
    (2) Non-automatically renewable time accounts
    This account will not renew automatically at maturity. If you do not 
renew the account, your deposit will be placed in [an interest-bearing/a 
noninterest-bearing] account.
    (v) Required interest distribution.
    This account requires the distribution of interest and does not 
allow interest to remain in the account.
    (i) Bonuses
    You will [be paid/receive] [$______ /(description of item)] as a 
bonus [when you open the account/on (date) ______].
    You must maintain a minimum [daily balance/average daily balance] of 
$______ to obtain the bonus.
    To earn the bonus, [$______ /your entire principal] must remain on 
deposit [for (time period)/until (date)______].

                 B-2--Model Clauses for Change in Terms

    On (date), the cost of (type of fee) will increase to $______.
    On (date), the interest rate on your account will decrease to 
______% with an annual percentage yield of ______%.
    On (date), the minimum [daily balance/average daily balance] 
required to avoid imposition of a fee will increase to $______.

      B-3--Model Clauses for Pre-Maturity Notices for Time Accounts

    (a) Automatically renewable time accounts with maturities of one 
year or less but longer than one month
    Your account will mature on (date).
    If the account renews, the new maturity date will be (date).
    The interest rate for the renewed account will be ______% with an 
annual percentage yield of ______%.

      or

    The interest rate and annual percentage yield have not yet been 
determined. They will be available on (date). Please call (phone number) 
to learn the interest rate and annual percentage yield for your new 
account.
    (b) Non-automatically renewable time accounts with maturities longer 
than one year
    Your account will mature on (date).
    If you do not renew the account, interest [will/will not] be paid 
after maturity.

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[GRAPHIC] [TIFF OMITTED] TC27SE91.058



[57 FR 43376, Sept. 21, 1992, as amended at 57 FR 46480, Oct. 9, 1992; 
Reg. DD, 60 FR 5131, Jan. 26, 1995]

[[Page 577]]



              Appendix C to Part 230--Effect on State Laws

                      (a) Inconsistent Requirements

    State law requirements that are inconsistent with the requirements 
of the act and this part are preempted to the extent of the 
inconsistency. A state law is inconsistent if it requires a depository 
institution to make disclosures or take actions that contradict the 
requirements of the federal law. A state law is also contradictory if it 
requires the use of the same term to represent a different amount or a 
different meaning than the federal law, requires the use of a term 
different from that required in the federal law to describe the same 
item, or permits a method of calculating interest on an account 
different from that required in the federal law.

                      (b) Preemption Determinations

    A depository institution, state, or other interested party may 
request the Board to determine whether a state law requirement is 
inconsistent with the federal requirements. A request for a 
determination shall be in writing and addressed to the Secretary, Board 
of Governors of the Federal Reserve System, Washington, DC 20551. Notice 
that the Board intends to make a determination (either on request or on 
its own motion) will be published in the Federal Register, with an 
opportunity for public comment unless the Board finds that notice and 
opportunity for comment would be impracticable, unnecessary, or contrary 
to the public interest and publishes its reasons for such decision. 
Notice of a final determination will be published in the Federal 
Register and furnished to the party who made the request and to the 
appropriate state official.

                 (c) Effect of Preemption Determinations

    After the Board determines that a state law is inconsistent, a 
depository institution may not make disclosures using the inconsistent 
term or take actions relying on the inconsistent law.

                      (d) Reversal of Determination

    The Board reserves the right to reverse a determination for any 
reason bearing on the coverage or effect of state or federal law. Notice 
of reversal of a determination will be published in the Federal Register 
and a copy furnished to the appropriate state official.

        Appendix D to Part 230--Issuance of Staff Interpretations

    Officials in the Board's Division of Consumer and Community Affairs 
are authorized to issue official staff interpretations of this part. 
These interpretations provide the protections afforded under section 
271(f) of the act. Except in unusual circumstances, interpretations will 
not be issued separately but will be incorporated in an official 
commentary to this part, which will be amended periodically. No staff 
interpretations will be issued approving depository institutions' forms, 
statements, or calculation tools or methods.

        Supplement I to Part 230--Official Staff Interpretations

                              Introduction

    1. Official status. This commentary is the means by which the 
Division of Consumer and Community Affairs of the Federal Reserve Board 
issues official staff interpretations of Regulation DD. Good faith 
compliance with this commentary affords protection from liability under 
section 271(f) of the Truth in Savings Act.

Section 230.1  Authority, purpose, coverage, and effect on state laws

    (c) Coverage
    1. Foreign applicability. Regulation DD applies to all depository 
institutions, except credit unions, that offer deposit accounts to 
residents (including resident aliens) of any state as defined in 
Sec. 230.2(r). Accounts held in an institution located in a state are 
covered, even if funds are transferred periodically to a location 
outside the United States. Accounts held in an institution located 
outside the United States are not covered, even if held by a U.S. 
resident.
    2. Persons who advertise accounts. Persons who advertise accounts 
are subject to the advertising rules. For example, if a deposit broker 
places an advertisement offering consumers an interest in an account at 
a depository institution, the advertising rules apply to the 
advertisement, whether the account is to be held by the broker or 
directly by the consumer.

Section 230.2  Definitions

    (a) Account
    1. Covered accounts. Examples of accounts subject to the regulation 
are:

i. Interest-bearing and noninterest-bearing accounts
ii. Deposit accounts opened as a condition of obtaining a credit card
iii. Accounts denominated in a foreign currency
iv. Individual retirement accounts (IRAs) and simplified employee 
          pension (SEP) accounts
v. Payable on death (POD) or ``Totten trust'' accounts

    2. Other accounts. Examples of accounts not subject to the 
regulation are:

i. Mortgage escrow accounts for collecting taxes and property insurance 
          premiums

[[Page 578]]

ii. Accounts established to make periodic disbursements on construction 
          loans
iii. Trust accounts opened by a trustee pursuant to a formal written 
          trust agreement (not merely declarations of trust on a 
          signature card such as a ``Totten trust,'' or an IRA and SEP 
          account)
iv. Accounts opened by an executor in the name of a decedent's estate

    3. Other investments. The term ``account'' does not apply to all 
products of a depository institution. Examples of products not covered 
are:

i. Government securities
ii. Mutual funds
iii. Annuities
iv. Securities or obligations of a depository institution
v. Contractual arrangements such as repurchase agreements, interest rate 
          swaps, and bankers acceptances
    (b) Advertisement

    1. Covered messages. Advertisements include commercial messages in 
visual, oral, or print media that invite, offer, or otherwise announce 
generally to prospective customers the availability of consumer 
accounts--such as:

i. Telephone solicitations
ii. Messages on automated teller machine (ATM) screens
iii. Messages on a computer screen in an institution's lobby (including 
          any printout) other than a screen viewed solely by the 
          institution's employee
iv. Messages in a newspaper, magazine, or promotional flyer or on radio
v. Messages that are provided along with information about the 
          consumer's existing account and that promote another account 
          at the institution

    2. Other messages. Examples of messages that are not advertisements 
are:

i. Rate sheets in a newspaper, periodical, or trade journal (unless the 
          depository institution, or a deposit broker offering accounts 
          at the institution, pays a fee for or otherwise controls 
          publication)
ii. In-person discussions with consumers about the terms for a specific 
          account
iii. Information given to consumers about existing accounts, such as 
          current rates recorded on a voice response machine or notices 
          for automatically renewable time accounts sent before renewal

    (f) Bonus
    1. Examples. Bonuses include items of value, other than interest, 
offered as incentives to consumers, such as an offer to pay the final 
installment deposit for a holiday club account. Items that are not a 
bonus include discount coupons for goods or services at restaurants or 
stores.
    2. De minimis rule. Items with a de minimis value of $10 or less are 
not bonuses. Institutions may rely on the valuation standard used by the 
Internal Revenue Service to determine if the value of the item is de 
minimis. Examples of items of de minimis value are:

i. Disability insurance premiums valued at an amount of $10 or less per 
          year
ii. Coffee mugs, T-shirts or other merchandise with a market value of 
          $10 or less

    3. Aggregation. In determining if an item valued at $10 or less is a 
bonus, institutions must aggregate per account per calendar year items 
that may be given to consumers. In making this determination, 
institutions aggregate per account only the market value of items that 
may be given for a specific promotion. To illustrate, assume an 
institution offers in January to give consumers an item valued at $7 for 
each calendar quarter during the year that the average account balance 
in a negotiable order of withdrawal (NOW) account exceeds $10,000. The 
bonus rules are triggered, since consumers are eligible under the 
promotion to receive up to $28 during the year. However, the bonus rules 
are not triggered if an item valued at $7 is offered to consumers 
opening a NOW account during the month of January, even though in 
November the institution introduces a new promotion that includes, for 
example, an offer to existing NOW account holders for an item valued at 
$8 for maintaining an average balance of $5,000 for the month.
    4. Waiver or reduction of a fee or absorption of expenses. Bonuses 
do not include value that consumers receive through the waiver or 
reduction of fees (even if the fees waived exceed $10) for banking-
related services such as the following:

i. A safe deposit box rental fee for consumers who open a new account
ii. Fees for travelers checks for account holders
iii. Discounts on interest rates charged for loans at the institution

    (h) Consumer
    1. Professional capacity. Examples of accounts held by a natural 
person in a professional capacity for another are attorney-client trust 
accounts and landlord-tenant security accounts.
    2. Other accounts. Accounts not held in a professional capacity 
include accounts held by an individual for a child under the Uniform 
Gifts to Minors Act.
    3. Sole proprietors. Accounts held by individuals as sole 
proprietors are not covered.
    4. Retirement plans. IRAs and SEP accounts are consumer accounts to 
the extent that funds are invested in covered accounts. But Keogh 
accounts are not subject to the regulation.
    (j) Depository institution and institution
    1. Foreign institutions. Branches of foreign institutions located in 
the United States are subject to the regulation if they offer deposit

[[Page 579]]

accounts to consumers. Edge Act and Agreement corporations, and agencies 
of foreign institutions, are not depository institutions for purposes of 
this regulation.
    (k) Deposit broker
    1. General. A deposit broker is a person who is in the business of 
placing or facilitating the placement of deposits in an institution, as 
defined by the Federal Deposit Insurance Act (12 U.S.C. 29(g)).
    (n) Interest
    1. Relation to Regulation Q. While bonuses are not interest for 
purposes of this regulation, other regulations may treat them as the 
equivalent of interest. For example, Regulation Q identifies payments of 
cash or merchandise that violate the prohibition against paying interest 
on demand accounts. (See 12 CFR Sec. 217.2(d).)
    (p) Passbook savings account
    1. Relation to Regulation E. Passbook savings accounts include 
accounts accessed by preauthorized electronic fund transfers to the 
account (as defined in 12 CFR Sec. 205.2(j)), such as an account that 
receives direct deposit of social security payments. Accounts permitting 
access by other electronic means are not ``passbook saving accounts'' 
and must comply with the requirements of Sec. 230.6 if statements are 
sent four or more times a year.
    (q) Periodic statement
    1. Examples. Periodic statements do not include:

i. Additional statements provided solely upon request
ii. Information provided by computer through home banking services
iii. General service information such as a quarterly newsletter or other 
          correspondence describing available services and products
    (t) Tiered-rate account
    1. Time accounts. Time accounts paying different rates based solely 
on the amount of the initial deposit are not tiered-rate accounts.
    2. Minimum balance requirements. A requirement to maintain a minimum 
balance to earn interest does not make an account a tiered-rate account.
    (u) Time account
    1. Club accounts. Although club accounts typically have a maturity 
date, they are not time accounts unless they also require a penalty of 
at least seven days' interest for withdrawals during the first six days 
after the account is opened.
    2. Relation to Regulation D. Regulation D permits in limited 
circumstances the withdrawal of funds without penalty during the first 
six days after a ``time deposit'' is opened. (See 12 CFR 
Sec. 204.2(c)(1)(i).) But the fact that a consumer makes a withdrawal as 
permitted by Regulation D does not disqualify the account from being a 
time account for purposes of this regulation.
    (v) Variable-rate account
    1. General. A certificate of deposit permitting one or more rate 
adjustments prior to maturity at the consumer's option is a variable-
rate account.

Section 230.3  General disclosure requirements

    (a) Form
    1. Design requirements. Disclosures must be presented in a format 
that allows consumers to readily understand the terms of their account. 
Institutions are not required to use a particular type size or typeface, 
nor are institutions required to state any term more conspicuously than 
any other term. Disclosures may be made:

i. In any order
ii. In combination with other disclosures or account terms
iii. In combination with disclosures for other types of accounts, as 
          long as it is clear to consumers which disclosures apply to 
          their account
iv. On more than one page and on the front and reverse sides
v. By using inserts to a document or filling in blanks
vi. On more than one document, as long as the documents are provided at 
          the same time

    2. Consistent terminology. Institutions must use consistent 
terminology to describe terms or features required to be disclosed. For 
example, if an institution describes a monthly fee (regardless of 
account activity) as a ``monthly service fee'' in account-opening 
disclosures, the periodic statement and change-in-term notices must use 
the same terminology so that consumers can readily identify the fee.
    (b) General
    1. Specificity of legal obligation. Institutions may refer to the 
calendar month or to roughly equivalent intervals during a calendar year 
as a ``month.''
    (c) Relation to Regulation E
    1. General rule. Compliance with Regulation E (12 CFR part 205) is 
deemed to satisfy the disclosure requirements of this regulation, such 
as when:

i. An institution changes a term that triggers a notice under Regulation 
          E, and uses the timing and disclosure rules of Regulation E 
          for sending change-in-term notices
ii. Consumers add an ATM access feature to an account, and the 
          institution provides disclosures pursuant to Regulation E, 
          including disclosure of fees (See 12 CFR Sec. 205.7.)

[[Page 580]]

iii. An institution complying with the timing rules of Regulation E 
          discloses at the same time fees for electronic services (such 
          as for balance inquiry fees at ATMs) required to be disclosed 
          by this regulation but not by Regulation E
iv. An institution relies on Regulation E's rules regarding disclosure 
          of limitations on the frequency and amount of electronic fund 
          transfers, including security-related exceptions. But any 
          limitations on ``intra-institutional transfers'' to or from 
          the consumer's other accounts during a given time period must 
          be disclosed, even though intra-institutional transfers are 
          exempt from Regulation E.
    (e) Oral response to inquiries
    1. Application of rule. Institutions are not required to provide 
rate information orally.
    2. Relation to advertising. The advertising rules do not cover an 
oral response to a question about rates.
    3. Existing accounts. This paragraph does not apply to oral 
responses about rate information for existing accounts. For example, if 
a consumer holding a one-year certificate of deposit (CD) requests 
interest rate information about the CD during the term, the institution 
need not disclose the annual percentage yield.
    (f) Rounding and accuracy rules for rates and yields
    (f)(1) Rounding
    1. Permissible rounding. Examples of permissible rounding are an 
annual percentage yield calculated to be 5.644%, rounded down and 
disclosed as 5.64%; 5.645% rounded up and disclosed as 5.65%.
    (f)(2) Accuracy
    1. Annual percentage yield and annual percentage yield earned. The 
tolerance for annual percentage yield and annual percentage yield earned 
calculations is designed to accommodate inadvertent errors. Institutions 
may not purposely incorporate the tolerance into their calculation of 
yields.

Section 230.4  Account disclosures

    (a) Delivery of account disclosures
    (a)(1) Account opening
    1. New accounts. New account disclosures must be provided when:

i. A time account that does not automatically rollover is renewed by a 
          consumer
ii. A consumer changes a term for a renewable time account (see 
          Sec. 230.5(b)-5 regarding disclosure alternatives)
iii. An institution transfers funds from an account to open a new 
          account not at the consumer's request, unless the institution 
          previously gave account disclosures and any change-in-term 
          notices for the new account
iv. An institution accepts a deposit from a consumer to an account that 
          the institution had deemed closed for the purpose of treating 
          accrued but uncredited interest as forfeited interest (see 
          Sec. 230.7(b)-3)

    2. Acquired accounts. New account disclosures need not be given when 
an institution acquires an account through an acquisition of or merger 
with another institution (but see Sec. 230.5(a) regarding advance notice 
requirements if terms are changed).
    (a)(2) Requests
    (a)(2)(i)
    1. Inquiries versus requests. A response to an oral inquiry (by 
telephone or in person) about rates and yields or fees does not trigger 
the duty to provide account disclosures. But when consumers ask for 
written information about an account (whether by telephone, in person, 
or by other means), the institution must provide disclosures unless the 
account is no longer offered to the public.
    2. General requests. When responding to a consumer's general request 
for disclosures about a type of account (a NOW account, for example), an 
institution that offers several variations may provide disclosures for 
any one of them.
    3. Timing for response. Ten business days is a reasonable time for 
responding to requests for account information that consumers do not 
make in person.
    (a)(2)(ii)(A)
    1. Recent rates. Institutions comply with this paragraph if they 
disclose an interest rate and annual percentage yield accurate within 
the seven calendar days preceding the date they send the disclosures.
    (a)(2)(ii)(B)
    1. Term. Describing the maturity of a time account as ``1 year'' or 
``6 months,'' for example, illustrates a statement of the maturity of a 
time account as a term rather than a date (``January 10, 1995'').
    (b) Content of account disclosures
    (b)(1) Rate information
    (b)(1)(i) Annual percentage yield and interest rate
    1. Rate disclosures. In addition to the interest rate and annual 
percentage yield, institutions may disclose a periodic rate 
corresponding to the interest rate. No other rate or yield (such as 
``tax effective yield'') is permitted. If the annual percentage yield is 
the same as the interest rate, institutions may disclose a single figure 
but must use both terms.
    2. Fixed-rate accounts. For fixed-rate time accounts paying the 
opening rate until maturity, institutions may disclose the period of 
time the interest rate will be in effect by stating the maturity date. 
(See Appendix B, B-7--Sample Form.) For other fixed-rate accounts, 
institutions may use a date (``This rate will be in effect through May 
4, 1995'') or a period (``This rate will be in effect for at least 30 
days'').

[[Page 581]]

    3. Tiered-rate accounts. Each interest rate, along with the 
corresponding annual percentage yield for each specified balance level 
(or range of annual percentage yields, if appropriate), must be 
disclosed for tiered-rate accounts. (See Appendix A, Part I, Paragraph 
D.)
    4. Stepped-rate accounts. A single composite annual percentage yield 
must be disclosed for stepped-rate accounts. (See Appendix A, Part I, 
Paragraph B.) The interest rates and the period of time each will be in 
effect also must be provided. When the initial rate offered for a 
specified time on a variable-rate account is higher or lower than the 
rate that would otherwise be paid on the account, the calculation of the 
annual percentage yield must be made as if for a stepped-rate account. 
(See Appendix A, Part I, Paragraph C.)
    (b)(1)(ii) Variable rates
    (b)(1)(ii)(B)
    1. Determining interest rates. To disclose how the interest rate is 
determined, institutions must:

i. Identify the index and specific margin, if the interest rate is tied 
          to an index
ii. State that rate changes are within the institution's discretion, if 
          the institution does not tie changes to an index
    (b)(1)(ii)(C)
    1. Frequency of rate changes. An institution reserving the right to 
change rates at its discretion must state the fact that rates may change 
at any time.
    (b)(1)(ii)(D)
    1. Limitations. A floor or ceiling on rates or on the amount the 
rate may decrease or increase during any time period must be disclosed. 
Institutions need not disclose the absence of limitations on rate 
changes.
    (b)(2) Compounding and crediting
    (b)(2)(ii) Effect of closing an account
    1. Deeming an account closed. An institution may, subject to state 
or other law, provide in its deposit contracts the actions by consumers 
that will be treated as closing the account and that will result in the 
forfeiture of accrued but uncredited interest. An example is the 
withdrawal of all funds from the account prior to the date that interest 
is credited.
    (b)(3) Balance information
    (b)(3)(ii) Balance computation method
    1. Methods and periods. Institutions may use different methods or 
periods to calculate minimum balances for purposes of imposing a fee 
(the daily balance for a calendar month, for example) and accruing 
interest (the average daily balance for a statement period, for 
example). Each method and corresponding period must be disclosed.
    (b)(3)(iii) When interest begins to accrue
    1. Additional information. Institutions may disclose additional 
information such as the time of day after which deposits are treated as 
having been received the following business day, and may use additional 
descriptive terms such as ``ledger'' or ``collected'' balances to 
disclose when interest begins to accrue.
    (b)(4) Fees
    1. Covered fees. The following are types of fees that must be 
disclosed:

i. Maintenance fees, such as monthly service fees
ii. Fees to open or to close an account
iii. Fees related to deposits or withdrawals, such as fees for use of 
          the institution's ATMs
iv. Fees for special services, such as stop-payment fees, fees for 
          balance inquiries or verification of deposits, fees associated 
          with checks returned unpaid, and fees for regularly sending to 
          consumers checks that otherwise would be held by the 
          institution

    2. Other fees. Institutions need not disclose fees such as the 
following:

i. Fees for services offered to account and nonaccount holders alike, 
          such as travelers checks and wire transfers (even if different 
          amounts are charged to account and nonaccount holders)
ii. Incidental fees, such as fees associated with state escheat laws, 
          garnishment or attorneys fees, and fees for photocopying

    3. Amount of fees. Institutions must state the amount and conditions 
under which a fee may be imposed. Naming and describing the fee (such as 
``$4.00 monthly service fee'') will typically satisfy these 
requirements.
    4. Tied-accounts. Institutions must state if fees that may be 
assessed against an account are tied to other accounts at the 
institution. For example, if an institution ties the fees payable on a 
NOW account to balances held in the NOW account and a savings account, 
the NOW account disclosures must state that fact and explain how the fee 
is determined.
    (b)(5) Transaction limitations
    1. General rule. Examples of limitations on the number or dollar 
amount of deposits or withdrawals that institutions must disclose are:

i. Limits on the number of checks that may be written on an account 
          within a given time period
ii. Limits on withdrawals or deposits during the term of a time account
iii. Limitations required by Regulation D on the number of withdrawals 
          permitted from money market deposit accounts by check to third 
          parties each month. Institutions need not disclose 
          reservations of right to require notices for withdrawals from 
          accounts required by federal or state law.

    (b)(6) Features of time accounts
    (b)(6)(i) Time requirements
    1. ``Callable'' time accounts. In addition to the maturity date, an 
institution must state

[[Page 582]]

the date or the circumstances under which it may redeem a time account 
at the institution's option (a ``callable'' time account).
    (b)(6)(ii) Early withdrawal penalties
    1. General. The term ``penalty'' may but need not be used to 
describe the loss of interest that consumers may incur for early 
withdrawal of funds from time accounts.
    2. Examples. Examples of early withdrawal penalties are:

i. Monetary penalties, such as ``$10.00'' or ``seven days' interest plus 
          accrued but uncredited interest''
ii. Adverse changes to terms such as a lowering of the interest rate, 
          annual percentage yield, or compounding frequency for funds 
          remaining on deposit
iii. Reclamation of bonuses

    3. Relation to rules for IRAs or similar plans. Penalties imposed by 
the Internal Revenue Code for certain withdrawals from IRAs or similar 
pension or savings plans are not early withdrawal penalties for purposes 
of this regulation.
    4. Disclosing penalties. Penalties may be stated in months, whether 
institutions assess the penalty using the actual number of days during 
the period or using another method such as a number of days that occurs 
in any actual sequence of the total calendar months involved. For 
example, stating ``one month's interest'' is permissible, whether the 
institution assesses 30 days' interest during the month of April, or 
selects a time period between 28 and 31 days for calculating the 
interest for all early withdrawals regardless of when the penalty is 
assessed.
    (b)(6)(iv) Renewal policies
    1. Rollover time accounts. Institutions offering a grace period on 
time accounts that automatically renew need not state whether interest 
will be paid if the funds are withdrawn during the grace period.
    2. Nonrollover time accounts. Institutions paying interest on funds 
following the maturity of time accounts that do not renew automatically 
need not state the rate (or annual percentage yield) that may be paid. 
(See Appendix B, Model Clause B-1(h)(iv)(2).)

Section 230.5  Subsequent disclosures

    (a) Change in terms
    (a)(1) Advance notice required
    1. Form of notice. Institutions may provide a change-in-term notice 
on or with a periodic statement or in another mailing. If an institution 
provides notice through revised account disclosures, the changed term 
must be highlighted in some manner. For example, institutions may note 
that a particular fee has been changed (also specifying the new amount) 
or use an accompanying letter that refers to the changed term.
    2. Effective date. An example of language for disclosing the 
effective date of a change is ``As of November 21, 1994.''
    3. Terms that change upon the occurrence of an event. An institution 
offering terms that will automatically change upon the occurrence of a 
stated event need not send an advance notice of the change provided the 
institution fully describes the conditions of the change in the account 
opening disclosures (and sends any change-in-term notices regardless of 
whether the changed term affects that consumer's account at that time).
    4. Examples. Examples of changes not requiring an advance change-in-
terms notice are:

i. The termination of employment for consumers for whom account 
          maintenance or activity fees were waived during their 
          employment by the depository institution
ii. The expiration of one year in a promotion described in the account 
          opening disclosures to ``waive $4.00 monthly service charges 
          for one year''

    (a)(2) No notice required
    (a)(2)(ii) Check printing fees
    1. Increase in fees. A notice is not required for an increase in 
fees for printing checks (or deposit and withdrawal slips) even if the 
institution adds some amount to the price charged by the vendor.
    (b) Notice before maturity for time accounts longer than one month 
that renew automatically
    1. Maturity dates on nonbusiness days. In determining the term of a 
time account, institutions may disregard the fact that the term will be 
extended beyond the disclosed number of days because the disclosed 
maturity falls on a nonbusiness day. For example, a holiday or weekend 
may cause a ``one-year'' time account to extend beyond 365 days (or 366, 
in a leap year) or a ``one-month'' time account to extend beyond 31 
days.
    2. Disclosing when rates will be determined. Ways to disclose when 
the annual percentage yield will be available include the use of:

i. A specific date, such as ``October 28''
ii. A date that is easily determinable, such as ``the Tuesday before the 
          maturity date stated on this notice'' or ``as of the maturity 
          date stated on this notice''

    3. Alternative timing rule. Under the alternative timing rule, an 
institution offering a 10-day grace period would have to provide the 
disclosures at least 10 days prior to the scheduled maturity date.
    4. Club accounts. If consumers have agreed to the transfer of 
payments from another account to a club time account for the next club 
period, the institution must comply with the requirements for 
automatically renewable time accounts--even though consumers may 
withdraw funds from the club account at the end of the current club 
period.
    5. Renewal of a time account. In the case of a change in terms that 
becomes effective if a

[[Page 583]]

rollover time account is subsequently renewed:

i. If the change is initiated by the institution, the disclosure 
          requirements of this paragraph apply. (Paragraph 230.5(a) 
          applies if the change becomes effective prior to the maturity 
          of the existing time account.)
ii. If the change is initiated by the consumer, the account opening 
          disclosure requirements of Sec. 230.4(b) apply. (If the notice 
          required by this paragraph has been provided, institutions may 
          give new account disclosures or disclosures highlighting only 
          the new term.)

    6. Example. If a consumer receives a prematurity notice on a one-
year time account and requests a rollover to a six-month account, the 
institution must provide either account opening disclosures including 
the new maturity date or, if all other terms previously disclosed in the 
prematurity notice remain the same, only the new maturity date.
    (b)(1) Maturities of longer than one year
    1. Highlighting changed terms. Institutions need not highlight terms 
that changed since the last account disclosures were provided.
    (c) Notice for time accounts one month or less that renew 
automatically
    1. Providing disclosures within a reasonable time. Generally, 10 
calendar days after an account renews is a reasonable time for providing 
disclosures. For time accounts shorter than 10 days, disclosures should 
be given prior to the next renewal date. For example, if a time account 
automatically renews every seven days, disclosures about an account that 
renews on Wednesday, December 7, 1994, should be given prior to 
Wednesday, December 14.
    (d) Notice before maturity for time accounts longer than one year 
that do not renew automatically
    1. Subsequent account. When funds are transferred following maturity 
of a nonrollover time account, institutions need not provide account 
disclosures unless a new account is established.

Section 230.6  Periodic statement disclosures

    (a) General rule
    1. General. Institutions are not required to provide periodic 
statements. If they do provide statements, disclosures need only be 
furnished to the extent applicable. For example, if no interest is 
earned for a statement period, institutions need not state that fact. 
Or, institutions may disclose ``$0'' interest earned and ``0%'' annual 
percentage yield earned.
    2. Regulation E interim statements. When an institution provides 
regular quarterly statements, and in addition provides a monthly interim 
statement to comply with Regulation E, the interim statement need not 
comply with this section unless it states interest or rate information. 
(See 12 CFR Sec. 205.9(b).)
    3. Combined statements. Institutions may provide information about 
an account (such as an MMDA) on the periodic statement for another 
account (such as a NOW account) without triggering the disclosures 
required by this section, as long as:

i. The information is limited to the account number, the type of 
          account, or balance information, and
ii. The institution also provides a periodic statement complying with 
          this section for each account.

    4. Other information. Additional information that may be given on or 
with a periodic statement includes:

i. Interest rates and corresponding periodic rates applied to balances 
          during the statement period
ii. The dollar amount of interest earned year-to-date
iii. Bonuses paid (or any de minimis consideration of $10 or less)
iv. Fees for products such as safe deposit boxes

    (a)(1) Annual percentage yield earned
    1. Ledger and collected balances. Institutions that accrue interest 
using the collected balance method may use either the ledger or the 
collected balance in determining the annual percentage yield earned.
    (a)(2) Amount of interest
    1. Accrued interest. Institutions must state the amount of interest 
that accrued during the statement period, even if it was not credited.
    2. Terminology. In disclosing interest earned for the period, 
institutions must use the term ``interest'' or terminology such as:

i. ``Interest paid,'' to describe interest that has been credited
ii. ``Interest accrued'' or ``interest earned,'' to indicate that 
          interest is not yet credited

    3. Closed accounts. If consumers close an account between crediting 
periods and forfeits accrued interest, the institution may not show any 
figures for interest earned or annual percentage yield earned for the 
period (other than zero, at the institution's option).
(a)(3) Fees imposed
    1. General. Periodic statements must state fees disclosed under 
Sec. 230.4(b) that were debited to the account during the statement 
period, even if assessed for an earlier period.
    2. Itemizing fees by type. In itemizing fees imposed more than once 
in the period, institutions may group fees if they are the same type. 
But the description must make clear that the dollar figure represents 
more than a single fee, for example, ``total fees for checks written 
this period.'' Examples of fees that may not be grouped together are:


[[Page 584]]


i. Monthly maintenance and excess activity fees
ii. ``Transfer'' fees, if different dollar amounts are imposed--such as 
          $.50 for deposits and $1.00 for withdrawals
iii. Fees for electronic fund transfers and fees for other services, 
          such as balance inquiry or maintenance fees

    3. Identifying fees. Statement details must enable consumers to 
identify the specific fee. For example:

i. Institutions may use a code to identify a particular fee if the code 
          is explained on the periodic statement or in documents 
          accompanying the statement.
ii. Institutions using debit slips may disclose the date the fee was 
          debited on the periodic statement and show the amount and type 
          of fee on the dated debit slip.

    4. Relation to Regulation E. Disclosure of fees in compliance with 
Regulation E complies with this section for fees related to electronic 
fund transfers (for example, totaling all electronic funds transfer fees 
in a single figure).
    (a)(4) Length of period
    1. General. Institutions providing the beginning and ending dates of 
the period must make clear whether both dates are included in the 
period.
    2. Opening or closing an account mid-cycle. If an account is opened 
or closed during the period for which a statement is sent, institutions 
must calculate the annual percentage yield earned based on account 
balances for each day the account was open.
(b) Special rule for average daily balance method
    1. Monthly statements and quarterly compounding. This rule applies, 
for example, when an institution calculates interest on a quarterly 
average daily balance and sends monthly statements. In this case, the 
first two monthly statements would omit annual percentage yield earned 
and interest earned figures; the third monthly statement would reflect 
the interest earned and the annual percentage yield earned for the 
entire quarter.
    2. Length of the period. Institutions must disclose the length of 
both the interest calculation period and the statement period. For 
example, a statement could disclose a statement period of April 16 
through May 15 and further state that ``the interest earned and the 
annual percentage yield earned are based on your average daily balance 
for the period April 1 through April 30.''
    3. Quarterly statements and monthly compounding. Institutions that 
use the average daily balance method to calculate interest on a monthly 
basis and that send statements on a quarterly basis may disclose a 
single interest (and annual percentage yield earned) figure. 
Alternatively, an institution may disclose three interest and three 
annual percentage yield earned figures, one for each month in the 
quarter, as long as the institution states the number of days (or 
beginning and ending dates) in the interest period if different from the 
statement period.

Section 230.7  Payment of interest

    (a)(1) Permissible methods
    1. Prohibited calculation methods. Calculation methods that do not 
comply with the requirement to pay interest on the full amount of 
principal in the account each day include:

i. Paying interest on the balance in the account at the end of the 
          period (the ``ending balance'' method)
ii. Paying interest for the period based on the lowest balance in the 
          account for any day in that period (the ``low balance'' 
          method)
iii. Paying interest on a percentage of the balance, excluding the 
          amount set aside for reserve requirements (the ``investable 
          balance'' method)

    2. Use of 365-day basis. Institutions may apply a daily periodic 
rate greater than 1/365 of the interest rate--such as 1/360 of the 
interest rate--as long as it is applied 365 days a year.
    3. Periodic interest payments. An institution can pay interest each 
day on the account and still make uniform interest payments. For 
example, for a one-year certificate of deposit an institution could make 
monthly interest payments equal to 1/12 of the amount of interest that 
will be earned for a 365-day period (or 11 uniform monthly payments--
each equal to roughly 1/12 of the total amount of interest--and one 
payment that accounts for the remainder of the total amount of interest 
earned for the period).
    4. Leap year. Institutions may apply a daily rate of 1/366 or 1/365 
of the interest rate for 366 days in a leap year, if the account will 
earn interest for February 29.
    5. Maturity of time accounts. Institutions are not required to pay 
interest after time accounts mature. (See 12 CFR part 217, the Board's 
Regulation Q, for limitations on duration of interest payments.) 
Examples include:

i. During a grace period offered for an automatically renewable time 
          account, if consumers decide during that period not to renew 
          the account
ii. Following the maturity of nonrollover time accounts
iii. When the maturity date falls on a holiday, and consumers must wait 
          until the next business day to obtain the funds

    6. Dormant accounts. Institutions must pay interest on funds in an 
account, even if inactivity or the infrequency of transactions would 
permit the institution to consider the account to be ``inactive'' or 
``dormant'' (or

[[Page 585]]

similar status) as defined by state or other law or the account 
contract.
    (a)(2) Determination of minimum balance to earn interest
    1. Daily balance accounts. Institutions that require a minimum 
balance may choose not to pay interest for days when the balance drops 
below the required minimum, if they use the daily balance method to 
calculate interest.
    2. Average daily balance accounts. Institutions that require a 
minimum balance may choose not to pay interest for the period in which 
the balance drops below the required minimum, if they use the average 
daily balance method to calculate interest.
    3. Beneficial method. Institutions may not require that consumers 
maintain both a minimum daily balance and a minimum average daily 
balance to earn interest, such as by requiring consumers to maintain a 
$500 daily balance and a prescribed average daily balance (whether 
higher or lower). But an institution could offer a minimum balance to 
earn interest that includes an additional method that is ``unequivocally 
beneficial'' to consumers such as the following: An institution using 
the daily balance method to calculate interest and requiring a $500 
minimum daily balance could offer to pay interest on the account for 
those days the minimum balance is not met as long as consumers maintain 
an average daily balance throughout the month of $400.
    4. Paying on full balance. Institutions must pay interest on the 
full balance in the account that meets the required minimum balance. For 
example, if $300 is the minimum daily balance required to earn interest, 
and a consumer deposits $500, the institution must pay the stated 
interest rate on the full $500 and not just on $200.
    5. Negative balances prohibited. Institutions must treat a negative 
account balance as zero to determine:

i. The daily or average daily balance on which interest will be paid
ii. Whether any minimum balance to earn interest is met

    6. Club accounts. Institutions offering club accounts (such as a 
``holiday'' or ``vacation'' club) cannot impose a minimum balance 
requirement for interest based on the total number or dollar amount of 
payments required under the club plan. For example, if a plan calls for 
$10 weekly payments for 50 weeks, the institution cannot set a $500 
``minimum balance'' and then pay interest only if the consumer has made 
all 50 payments.
    7. Minimum balances not affecting interest. Institutions may use the 
daily balance, average daily balance, or any other computation method to 
calculate minimum balance requirements not involving the payment of 
interest--such as to compute minimum balances for assessing fees.
    (b) Compounding and crediting policies
    1. General. Institutions choosing to compound interest may compound 
or credit interest annually, semi-annually, quarterly, monthly, daily, 
continuously, or on any other basis.
    2. Withdrawals prior to crediting date. If consumers withdraw funds 
(without closing the account) prior to a scheduled crediting date, 
institutions may delay paying the accrued interest on the withdrawn 
amount until the scheduled crediting date, but may not avoid paying 
interest.
    3. Closed accounts. Subject to state or other law, an institution 
may choose not to pay accrued interest if consumers close an account 
prior to the date accrued interest is credited, as long as the 
institution has disclosed that fact.
    (c) Date interest begins to accrue
    1. Relation to Regulation CC. Institutions may rely on the Expedited 
Funds Availability Act (EFAA) and Regulation CC (12 CFR part 229) to 
determine, for example, when a deposit is considered made for purposes 
of interest accrual, or when interest need not be paid on funds because 
a deposited check is later returned unpaid.
    2. Ledger and collected balances. Institutions may calculate 
interest by using a ``ledger'' or ``collected'' balance method, as long 
as the crediting requirements of the EFAA are met (12 CFR 229.14).
    3. Withdrawal of principal. Institutions must accrue interest on 
funds until the funds are withdrawn from the account. For example, if a 
check is debited to an account on a Tuesday, the institution must accrue 
interest on those funds through Monday.

Section 230.8  Advertising

    (a) Misleading or inaccurate advertisements
    1. General. All advertisements are subject to the rule against 
misleading or inaccurate advertisements, even though the disclosures 
applicable to various media differ.
    2. Indoor signs. An indoor sign advertising an annual percentage 
yield is not misleading or inaccurate when:

i. For a tiered-rate account, it also provides the lower dollar amount 
          of the tier corresponding to the advertised annual percentage 
          yield
ii. For a time account, it also provides the term required to obtain the 
          advertised annual percentage yield

    3. Fees affecting ``free'' accounts. For purposes of determining 
whether an account can be advertised as ``free'' or ``no cost,'' 
maintenance and activity fees include:

i. Any fee imposed when a minimum balance requirement is not met, or 
          when consumers exceed a specified number of transactions

[[Page 586]]

ii. Transaction and service fees that consumers reasonably expect to be 
          imposed on a regular basis
iii. A flat fee, such as a monthly service fee
iv. Fees imposed to deposit, withdraw, or transfer funds, including per-
          check or per-transaction charges (for example, $.25 for each 
          withdrawal, whether by check or in person)

    4. Other fees. Examples of fees that are not maintenance or activity 
fees include:

i. Fees not required to be disclosed under Sec. 230.4(b)(4)
ii. Check printing fees
iii. Balance inquiry fees
iv. Stop-payment fees and fees associated with checks returned unpaid
v. Fees assessed against a dormant account
vi. Fees for ATM or electronic transfer services (such as preauthorized 
          transfers or home banking services) not required to obtain an 
          account

    5. Similar terms. An advertisement may not use the term ``fees 
waived'' if a maintenance or activity fee may be imposed because it is 
similar to the terms ``free'' or ``no cost.''
    6. Specific account services. Institutions may advertise a specific 
account service or feature as free if no fee is imposed for that service 
or feature. For example, institutions offering an account that is free 
of deposit or withdrawal fees could advertise that fact, as long as the 
advertisement does not mislead consumers by implying that the account is 
free and that no other fee (a monthly service fee, for example) may be 
charged.
    7. Free for limited time. If an account (or a specific account 
service) is free only for a limited period of time--for example, for one 
year following the account opening--the account (or service) may be 
advertised as free if the time period is also stated.
    8. Conditions not related to deposit accounts. Institutions may 
advertise accounts as ``free'' for consumers meeting conditions not 
related to deposit accounts, such as the consumer's age. For example, 
institutions may advertise a NOW account as ``free for persons over 65 
years old,'' even though a maintenance or activity fee is assessed on 
accounts held by consumers 65 or younger.
    (b) Permissible rates
    1. Tiered-rate accounts. An advertisement for a tiered-rate account 
that states an annual percentage yield must also state the annual 
percentage yield for each tier, along with corresponding minimum balance 
requirements. Any interest rates stated must appear in conjunction with 
the applicable annual percentage yields for each tier.
    2. Stepped-rate accounts. An advertisement that states an interest 
rate for a stepped-rate account must state all the interest rates and 
the time period that each rate is in effect.
    3. Representative examples. An advertisement that states an annual 
percentage yield for a given type of account (such as a time account for 
a specified term) need not state the annual percentage yield applicable 
to other time accounts offered by the institution or indicate that other 
maturity terms are available. In an advertisement stating that rates for 
an account may vary depending on the amount of the initial deposit or 
the term of a time account, institutions need not list each balance 
level and term offered. Instead, the advertisement may:

i. Provide a representative example of the annual percentage yields 
          offered, clearly described as such. For example, if an 
          institution offers a $25 bonus on all time accounts and the 
          annual percentage yield will vary depending on the term 
          selected, the institution may provide a disclosure of the 
          annual percentage yield as follows: ``For example, our 6-month 
          certificate of deposit currently pays a 3.15% annual 
          percentage yield.''
ii. Indicate that various rates are available, such as by stating short-
          term and longer-term maturities along with the applicable 
          annual percentage yields: ``We offer certificates of deposit 
          with annual percentage yields that depend on the maturity you 
          choose. For example, our one-month CD earns a 2.75% APY. Or, 
          earn a 5.25% APY for a three-year CD.''

    (c) When additional disclosures are required
    1. Trigger terms. The following are examples of information stated 
in advertisements that are not ``trigger'' terms:

i. ``One, three, and five year CDs available''
ii. ``Bonus rates available''
iii. ``1% over our current rates,'' so long as the rates are not 
          determinable from the advertisement
    (c)(2) Time annual percentage yield is offered
    1. Specified date. If an advertisement discloses an annual 
percentage yield as of a specified date, that date must be recent in 
relation to the publication or broadcast frequency of the media used, 
taking into account the particular circumstances or production deadlines 
involved. For example, the printing date of a brochure printed once for 
a deposit account promotion that will be in effect for six months would 
be considered ``recent,'' even though rates change during the six-month 
period. Rates published in a daily newspaper or on television must 
reflect rates offered shortly before (or on) the date the rates are 
published or broadcast.
    2. Reference to date of publication. An advertisement may refer to 
the annual percentage yield as being accurate as of the date of 
publication, if the date is on the publication itself. For instance, an 
advertisement in a periodical may state that a rate is ``current through 
the date of this issue,'' if the periodical shows the date.

[[Page 587]]

    (c)(5) Effect of fees
    1. Scope. This requirement applies only to maintenance or activity 
fees described in paragraph 8(a).
    (c)(6) Features of time accounts
    (c)(6)(i) Time requirements
    1. Club accounts. If a club account has a maturity date but the term 
may vary depending on when the account is opened, institutions may use a 
phrase such as: ``The maturity date of this club account is November 15; 
its term varies depending on when the account is opened.''
    (c)(6)(ii) Early withdrawal penalties
    1. Discretionary penalties. Institutions imposing early withdrawal 
penalties on a case-by-case basis may disclose that they ``may'' (rather 
than ``will'') impose a penalty if such a disclosure accurately 
describes the account terms.
    (d) Bonuses
    1. General reference to ``bonus.'' General statements such as 
``bonus checking'' or ``get a bonus when you open a checking account'' 
do not trigger the bonus disclosures.
    (e) Exemption for certain advertisements
    (e)(1) Certain media
    (e)(1)(iii)
    1. Tiered-rate accounts. Solicitations for a tiered-rate account 
made through telephone response machines must provide the annual 
percentage yields and the balance requirements applicable to each tier.
    (e)(2) Indoor signs
    (e)(2)(i)
    1. General. Indoor signs include advertisements displayed on 
computer screens, banners, preprinted posters, and chalk or peg boards. 
Any advertisement inside the premises that can be retained by a consumer 
(such as a brochure or a printout from a computer) is not an indoor 
sign.
    2. Consumers outside the premises. Advertisements may be ``indoor 
signs'' even though they may be viewed by consumers from outside. An 
example is a banner, in an institution's glass-enclosed branch office, 
that is located behind a teller facing customers but is readable by 
passersby.

Section 230.9  Enforcement and record retention

    (c) Record retention
    1. Evidence of required actions. Institutions comply with the 
regulation by demonstrating that they have done the following:

i. Established and maintained procedures for paying interest and 
          providing timely disclosures as required by the regulation, 
          and
ii. Retained sample disclosures for each type of account offered to 
          consumers, such as account-opening disclosures, copies of 
          advertisements, and change-in-term notices; and information 
          regarding the interest rates and annual percentage yields 
          offered.

    2. Methods of retaining evidence. Institutions must be able to 
reconstruct the required disclosures or other actions. They need not 
keep disclosures or other business records in hard copy. Records 
evidencing compliance may be retained on microfilm, microfiche, or by 
other methods that reproduce records accurately (including computer 
files).
    3. Payment of interest. Institutions must retain sufficient rate and 
balance information to permit the verification of interest paid on an 
account, including the payment of interest on the full principal 
balance.

       Appendix A to Part 230--Annual Percentage Yield Calculation

Part I. Annual Percentage Yield for Account Disclosures and Advertising 
                                Purposes

    1. Rounding for calculations. The following are examples of 
permissible rounding for calculating interest and the annual percentage 
yield:

i. The daily rate applied to a balance carried to five or more decimal 
          places
ii. The daily interest earned carried to five or more decimal places

     Part II. Annual Percentage Yield Earned for Periodic Statements

    1. Balance method. The interest figure used in the calculation of 
the annual percentage yield earned may be derived from the daily balance 
method or the average daily balance method. The balance used in the 
formula for the annual percentage yield earned is the sum of the 
balances for each day in the period divided by the number of days in the 
period.
    2. Negative balances prohibited. Institutions must treat a negative 
account balance as zero to determine the balance on which the annual 
percentage yield earned is calculated. (See commentary to 
Sec. 230.7(a)(2).)

                           A. General Formula

    1. Accrued but uncredited interest. To calculate the annual 
percentage yield earned, accrued but uncredited interest:

i. May not be included in the balance for statements issued at the same 
          time or less frequently than the account's compounding and 
          crediting frequency. For example, if monthly statements are 
          sent for an account that compounds interest daily and credits 
          interest monthly, the balance may not be increased each day to 
          reflect the effect of daily compounding.

[[Page 588]]

ii. Must be included in the balance for succeeding statements if a 
          statement is issued more frequently than compounded interest 
          is credited on an account. For example, if monthly statements 
          are sent for an account that compounds interest daily and 
          credits interest quarterly, the balance for the second monthly 
          statement would include interest that had accrued for the 
          prior month.

    2. Rounding. The interest earned figure used to calculate the annual 
percentage yield earned must be rounded to two decimals and reflect the 
amount actually paid. For example, if the interest earned for a 
statement period is $20.074 and the institution pays the consumer 
$20.07, the institution must use $20.07 (not $20.074) to calculate the 
annual percentage yield earned. For accounts paying interest based on 
the daily balance method that compound and credit interest quarterly, 
and send monthly statements, the institution may, but need not, round 
accrued interest to two decimals for calculating the annual percentage 
yield earned on the first two monthly statements issued during the 
quarter. However, on the quarterly statement the interest earned figure 
must reflect the amount actually paid.

 B. Special Formula for Use Where Periodic Statement is Sent More Often 
            Than the Period for Which Interest is Compounded

    1. Statements triggered by Regulation E. Institutions may, but need 
not, use this formula to calculate the annual percentage yield earned 
for accounts that receive quarterly statements and are subject to 
Regulation E's rule calling for monthly statements when an electronic 
fund transfer has occurred. They may do so even though no monthly 
statement was issued during a specific quarter. But institutions must 
use this formula for accounts that compound and credit interest 
quarterly and receive monthly statements that, while triggered by 
Regulation E, comply with the provisions of Sec. 230.6.
    2. Days in compounding period. Institutions using the special annual 
percentage yield earned formula must use the actual number of days in 
the compounding period.

         Appendix B to Part 230--Model Clauses and Sample Forms

    1. Modifications. Institutions that modify the model clauses will be 
deemed in compliance as long as they do not delete required information 
or rearrange the format in a way that affects the substance or clarity 
of the disclosures.
    2. Format. Institutions may use inserts to a document (see Sample 
Form B-4) or fill-in blanks (see Sample Forms B-5, B-6 and B-7, which 
use underlining to indicate terms that have been filled in) to show 
current rates, fees, or other terms.
    3. Disclosures for opening accounts. The sample forms illustrate the 
information that must be provided to consumers when an account is 
opened, as required by Sec. 230.4(a)(1). (See Sec. 230.4(a)(2), which 
states the requirements for disclosing the annual percentage yield, the 
interest rate, and the maturity of a time account in responding to a 
consumer's request.)
    4. Compliance with Regulation E. Institutions may satisfy certain 
requirements under Regulation DD with disclosures that meet the 
requirements of Regulation E. (See Sec. 230.3(c).) For disclosures 
covered by both this regulation and Regulation E (such as the amount of 
fees for ATM usage, institutions should consult appendix A to Regulation 
E for appropriate model clauses.
    5. Duplicate disclosures. If a requirement such as a minimum balance 
applies to more than one account term (to obtain a bonus and determine 
the annual percentage yield, for example), institutions need not repeat 
the requirement for each term, as long as it is clear which terms the 
requirement applies to.
    6. Sample forms. The sample forms (B-4 through B-8) serve a purpose 
different from the model clauses. They illustrate ways of adapting the 
model clauses to specific accounts. The clauses shown relate only to the 
specific transactions described.

                B-1 Model Clauses for Account Disclosures

              B-1(h) Disclosures Relating to Time Accounts

    1. Maturity. The disclosure in Clause (h)(i) stating a specific date 
may be used in all cases. The statement describing a time period is 
appropriate only when providing disclosures in response to a consumer's 
request.

                  B-2 Model Clauses for Change in Terms

    1. General. The second clause, describing a future decrease in the 
interest rate and annual percentage yield, applies to fixed-rate 
accounts only.

                   B-4 Sample Form (Multiple Accounts)

    1. Rate sheet insert. In the rate sheet insert, the calculations of 
the annual percentage yield for the three-month and six-month 
certificates are based on 92 days and 181 days respectively. All 
calculations in the insert assume daily compounding.

           B-6 Sample Form (Tiered-Rate Money Market Account)

    1. General. Sample Form B-6 uses Tiering Method A (discussed in 
Appendix A and Clause (a)(iv)) to calculate interest. It gives a 
narrative description of a tiered-rate account; institutions may use 
different formats (for example, a chart similar to the one

[[Page 589]]

in Sample Form B-4), as long as all required information for each tier 
is clearly presented. The form does not contain a separate disclosure of 
the minimum balance required to obtain the annual percentage yield; the 
tiered-rate disclosure provides that information.

[Reg. DD, 59 FR 40221, Aug. 8, 1994, as amended at 59 FR 52658, Oct. 19, 
1994]



PART 231--NETTING ELIGIBILITY FOR FINANCIAL INSTITUTIONS REGULATIONS EE--Table of Contents




Sec.
231.1  Authority, purpose, and scope.
231.2  Definitions.
231.3  Qualification as a financial institution.

    Authority: 12 U.S.C. 4402(1)(B) and 4402(9).

    Source: Reg. EE, 59 FR 4784, Feb. 2, 1994, unless otherwise noted.



Sec. 231.1  Authority, purpose, and scope.

    (a) Authority. This part (Regulation EE; 12 CFR part 231) is issued 
by the Board of Governors of the Federal Reserve System under the 
authority of sections 402(1)(B) and 402(9) of the Federal Deposit 
Insurance Corporation Improvement Act of 1991 (12 U.S.C. 4402(1)(B) and 
4402(9)).
    (b) Purpose and scope. The purpose of the Act and this part is to 
enhance efficiency and reduce systemic risk in the financial markets. 
This part expands the Act's definition of ``financial institution'' to 
allow more financial market participants to avail themselves of the 
netting provisions set forth in sections 401-407 of the Act (12 U.S.C. 
4401-4407). This part does not affect the status of those financial 
institutions specifically defined in the Act.



Sec. 231.2  Definitions.

    As used in this part, unless the context requires otherwise:
    (a) Act means the Federal Deposit Insurance Corporation Improvement 
Act of 1991 (Pub. L. 102-242, 105 Stat. 2236), as amended.
    (b) Affiliate, with respect to a person, means any other person that 
controls, is controlled by, or is under common control with the person.
    (c) Financial contract means a qualified financial contract as 
defined in section 11(e)(8)(D) of the Federal Deposit Insurance Act (12 
U.S.C. 1821(e)(8)(D)), as amended, except that a forward contract 
includes a contract with a maturity date two days or less after the date 
the contract is entered into (i.e., a ``spot'' contract).
    (d) Financial market means a market for a financial contract.
    (e) Gross mark-to-market positions in one or more financial 
contracts means the sum of the absolute values of positions in those 
contracts, adjusted to reflect the market values of those positions in 
accordance with the methods used by the parties to each contract to 
value the contract.
    (f) Person means any legal entity, foreign or domestic, including a 
corporation, unincorporated company, partnership, government unit or 
instrumentality, trust, natural person, or any other entity or 
organization.



Sec. 231.3  Qualification as a financial institution.

    (a) A person qualifies as a financial institution for purposes of 
sections 401-407 of the Act if it represents, orally or in writing, that 
it will engage in financial contracts as a counterparty on both sides of 
one or more financial markets and either--
    (1) Had one or more financial contracts of a total gross dollar 
value of at least $1 billion in notional principal amount outstanding on 
any day during the previous 15-month period with counterparties that are 
not its affiliates; or
    (2) Had total gross mark-to-market positions of at least $100 
million (aggregated across counterparties) in one or more financial 
contracts on any day during the previous 15-month period with 
counterparties that are not its affiliates.
    (b) If a person qualifies as a financial institution under paragraph 
(a) of this section, that person will be considered a financial 
institution for the purposes of any contract entered into during the 
period it qualifies, even if the person subsequently fails to qualify.
    (c) If a person qualifies as a financial institution under paragraph 
(a) of this section on March 7, 1994, that person

[[Page 590]]

will be considered a financial institution for the purposes of any 
outstanding contract entered into prior to March 7, 1994.

[Reg. EE, 59 FR 4784, Feb. 2, 1994, as amended at, 61 FR 1274, Jan. 19, 
1996]



PART 250--MISCELLANEOUS INTERPRETATIONS--Table of Contents




                             Interpretations

Sec.
250.120  Underwriting bonds payable from proceeds of State sales taxes.
250.121  Application of investment securities regulation to member State 
          banks.
250.122  Underwriting of public Authority bonds payable from rents under 
          lease with governmental entity having general taxing powers.
250.123  Underwriting of notes payable from proceeds of subsequent sale 
          of general obligation bonds.
250.140  Member bank acquisition of stock of another bank.
250.141  Member bank purchase of stock of ``operations subsidiaries.''
250.142  Meaning of ``obligor or maker'' in determining limitation on 
          securities investments by member State banks.
250.143  Member bank purchase of stock of foreign operations 
          subsidiaries.
250.160  Federal funds transactions.
250.161  Capital notes and debentures as ``capital,'' ``capital stock,'' 
          or ``surplus.''
250.162  Undivided profits as ``capital stock and surplus''.
250.163  Inapplicability of amount limitations to ``ineligible 
          acceptances.''
250.164  Bankers' acceptances.
250.165  Bankers' acceptances: definition of participations.
250.166  Treatment of mandatory convertible debt and subordinated notes 
          of state member banks and bank holding companies as 
          ``capital''.
250.180  Reports of changes in control of management.
250.181  Reports of change in control of bank management incident to a 
          merger.
250.182  Terms defining competitive effects of proposed mergers.
250.200  Investment in bank premises by holding company banks.
250.220  Whether member bank acting as trustee is prohibited by section 
          20 of the Banking Act of 1933 from acquiring majority of 
          shares of mutual fund.
250.221  Issuance and sale of short-term debt obligations by bank 
          holding companies.
250.240  Applicability of section 23A of the Federal Reserve Act to 
          transactions between a member State bank and its ``operations 
          subsidiary''.
250.241  Exclusion from section 23A of the Federal Reserve Act for 
          certain transactions subject to review under the Bank Merger 
          Act.
250.242  Section 23A of the Federal Reserve Act--definition of capital 
          stock and surplus.
250.250  Applicability of section 23A of the Federal Reserve Act to a 
          member State bank's purchase of, or participation in, a loan 
          originated by a mortgage banking affiliate.
250.260  Miscellaneous interpretations; gold coin and bullion.

                        Bank Service Arrangements

250.300  Kinds of bank servicers subject to Board examination under the 
          Bank Service Corporation Act.
250.301  Scope of investment authority and notification requirement 
          under the Bank Service Corporation Act.
250.302  Applicability of Bank Service Corporation Act to bank credit 
          card service organization.

         Interpretations of Section 32 of the Glass-Steagall Act

250.400  Service of open-end investment company.
250.401  Director serving member bank and closed-end investment company 
          being organized.
250.402  Service as officer, director, or employee of licensee 
          corporation under the Small Business Investment Act of 1958.
250.403  Service of member bank and real estate investment company.
250.404  Serving as director of member bank and corporation selling own 
          stock.
250.405  No exception granted a special or limited partner.
250.406  Serving member bank and investment advisor with mutual fund 
          affiliation.
250.407  Interlocking relationship involving securities affiliate of 
          brokerage firm.
250.408  Short-term negotiable notes of banks not securities under 
          section 32, Banking Act of 1933.
250.409  Investment for own account affects applicability of section 32.
250.410  Interlocking relationships between bank and its commingled 
          investment account.
250.411  Interlocking relationships between member bank and variable 
          annuity insurance company.
250.412  Interlocking relationships between member bank and insurance 
          company-mutual fund complex.
250.413  ``Bank-eligible'' securities activities.

    Authority: 12 U.S.C. 78, 248(i) and 371c(e).

    Source: 33 FR 9866, July 10, 1968, unless otherwise noted.

[[Page 591]]

                             Interpretations



Sec. 250.120   Underwriting bonds payable from proceeds of State sales taxes.

    (a) The opinion of the Board of Governors of the Federal Reserve 
System has been requested with respect to the authority of member State 
banks to underwrite securities issued by States and political 
subdivisions thereof, with particular reference to $35,750,000 of Public 
Building Bonds, 1961, Series D, and Public School Plant Facilities 
Bonds, 1961, Series C, of the State of Washington. The Comptroller of 
the Currency has held that said bonds are eligible for underwriting by 
national banks.
    (b) Paragraph Seventh of section 5136 of the Revised Statutes (12 
U.S.C. 24) provides that a national bank ``shall not underwrite any 
issue of securities'', but further provides that this restriction 
``shall not apply to * * * general obligations of any State or of any 
political subdivision thereof''. The 20th paragraph of section 9 of the 
Federal Reserve Act (12 U.S.C. 335) subjects State member banks to the 
same limitations with respect to the underwriting of investment 
securities ``as are applicable in the case of national banks under 
paragraph `Seventh' of section 5136.''
    (c) Under the statutory provisions quoted above, member banks are 
prohibited from underwriting securities issued by a State unless those 
securities are ``general obligations''. In the opinion of the Board of 
Governors, securities are not ``general obligations'' unless they are 
backed by the full faith and credit of the issuer. As stated in 
paragraph 520 of the ``Digest of Opinions of the Office of the 
Comptroller of the Currency'', ``Securities payable only out of 
particular funds or out of the obligor's revenues from a particular 
source are not general obligations.'' In order to be eligible for 
underwriting by member banks, the issuer must possess the power of 
general property taxation and the securities must be supported by that 
power, as a part of the ``full faith and credit'' of the issuer.
    (d) The bonds in question are issued pursuant to Washington Laws of 
1961, Ex Sess., Chapters 3 and 23. These statutes provide that the bonds 
``shall not be a general obligation of the state of Washington but shall 
be payable * * * from the proceeds of retail sales taxes * * *.'' The 
statutes also provide that ``the state undertakes to continue to levy 
the taxes referred to herein and to fix and maintain said taxes in such 
amounts as will provide sufficient funds to pay said bonds and interest 
thereon until all such obligations have been paid in full.''
    (e) The statutory provisions that the bonds in question ``shall not 
be a general obligation of the State of Washington'' and ``shall be 
payable * * * from the proceeds of retail sales taxes'' appear to 
indicate that the bonds will not be supported by the full faith and 
credit of the State, including its power of general property taxation. 
If this is correct it follows on the principles previously stated, that 
these bonds would not be ``general obligations'' of the State within the 
meaning of R.S. 5136 and would not be eligible to be underwritten by 
member banks. The undertaking to levy retail sales taxes that will 
provide sufficient funds to pay the bonds in full reflects the intent of 
the State that the bonds (and interest thereon) shall be paid, but it 
does not negate the plain statement in the Washington statute that the 
bonds shall be payable from a particular source--namely, the proceeds of 
retail sales taxes--and are not general obligations.
    (f) This conclusion does not conflict with the decision of the 
Supreme Court of Washington in State of Washington v. Martin, decided 
August 7, 1963. It was there held that bonds of this nature are ``issued 
upon the credit of the state and are in truth debts of the state.'' 
However, the Court made it quite clear that such bonds are not supported 
by the full faith and credit of the State and its plenary taxing power. 
Under the State constitutional and statutory provisions dealt with in 
that decision, bonds of the State of Washington that are payable from a 
particular source of revenue constitute a debt of that State but are not 
general obligations thereof.
    (g) For these reasons, the Board concludes that the bonds in 
question are not ``general obligations'' within the purview of section 
5136 of the Revised

[[Page 592]]

Statutes and consequently are not eligible for underwriting by State 
banks that are members of the Federal Reserve System.

(12 U.S.C. 24, 335)



Sec. 250.121   Application of investment securities regulation to member State banks.

    (a) General. A revision of the Investment Securities Regulation 
(Part 1 of this title) was issued recently by the Comptroller of the 
Currency. Under section 9 of the Federal Reserve Act (12 U.S.C. 335) the 
regulation is applicable to member State banks as well as to national 
banks, insofar as it conforms to paragraph Seventh of section 5136 of 
the Revised Statutes (R.S. 5136; 12 U.S.C. 24).
    (b) Provisions of regulation with respect to ``exempt securities''. 
(1) Paragraph Seventh refers to two areas of securities transactions by 
a bank: (i) Underwriting and dealing, which are grouped as 
``underwriting'' herein, and (ii) investing (called ``purchasing for its 
own account'' in the statute).
    (2) The statute contains a general prohibition against a member bank 
(i) underwriting securities or (ii) investing more than 10 percent of 
its capital and surplus in the securities of any one obligor. In 
addition to this 10 percent limitation, the power of national banks and 
member State banks to purchase securities for investment is subject to 
``such limitations and restrictions as the Comptroller of the Currency 
may by regulation prescribe''. The term investment securities is defined 
in paragraph Seventh and is subject to ``such further definition * * * 
as may by regulation be prescribed by the Comptroller''.
    (3) The statute also provides, however, that ``The limitations and 
restrictions herein contained as to dealing in, underwriting and 
purchasing for [the bank's] own account, investment securities shall not 
apply to obligations of the United States or general obligations of any 
State or of any political subdivision thereof,'' or certain other 
securities. In other words, national banks and member State banks are 
legally free (i) to underwrite such ``exempt securities'' and (ii) to 
invest therein without regard to the 10 percent limitation mentioned in 
this section.
    (4) The authority of the Comptroller of the Currency to issue 
investment regulations pursuant to R.S. 5136 does not include authority 
to exempt additional kinds of securities from the prohibition against 
underwriting or the prohibition against investing more than 10 percent 
of capital and surplus in securities of any one obligor. Despite this, 
Sec. 1.3 of this title, the Comptroller's recent revision of the 
Investment Securities Regulation, contains a definition of public 
security and Sec. 1.4 of this title states that ``A bank may deal in, 
underwrite, purchase and sell for its own account a public security 
subject only to the exercise of prudent banking judgment.'' The term 
public security is so defined that, in effect, the regulation purports 
to authorize national banks and member State banks to underwrite, and to 
purchase without limitation on amount, securities that are not exempted 
by law from the statutory prohibition against underwriting and against 
investing in excess of the 10 percent limitation. For example, the terms 
of the regulation would authorize such banks to underwrite some 
securities of public corporations that are payable solely out of 
revenues derived from the operation of a tunnel, turnpike, bridge, or 
the like, despite the fact that the applicable statute does not exempt 
such securities from the general prohibition against underwriting by 
banks.
    (5) Since the Comptroller is not authorized by law to expand the 
category of exempt securities established and described in paragraph 
Seventh of R.S. 5136, the current regulation does not have the force and 
effect of law insofar as it attempts to do this. Accordingly, member 
State banks are informed that, in the opinion of the Board of Governors, 
the only securities that are exempt from the limitations and 
restrictions of paragraph Seventh are those specified in R.S. 5136. 
Unless a particular issue of securities is exempt by virtue of that 
provision of law, member State banks may not underwrite the issue, and 
the 10 percent limit is applicable to investments therein. Since so-
called revenue obligations of the kinds

[[Page 593]]

mentioned above, as well as other revenue obligations, are not exempt 
from the limitations and restrictions of R.S. 5136, it would be unlawful 
for a member State bank to underwrite such securities or to invest in 
them in excess of the 10 percent limit.
    (c) Convertible securities. (1) From time to time corporations issue 
debentures or similar securities that constitute an obligation to pay a 
specified dollar amount of principal (as well as interest) and in 
addition give the holder an option to convert the security into a 
specified number of shares of the corporation's stock. When the market 
value of the stock into which such a debenture is convertible is 
substantially less than the face value of the debenture, the debenture 
ordinarily will sell at a price that reflects principally its value as a 
corporate obligation, without regard to the conversion option. However, 
the market value of the stock sometimes increases to such an extent that 
the shares into which a debenture is convertible have a market value 
that is much greater than the face value of the debenture. For example, 
a number of convertible debentures traded on the New York Stock Exchange 
sell at prices of $2,000, $3,000, or more, for securities with a face 
value of $1,000. These prices approximate very closely the current 
market value of the shares of stock for which the convertible may be 
exchanged at the holder's option.
    (2) A question has arisen as to the circumstances in which a member 
State bank may purchase convertible debentures for its investment 
portfolio under the provisions of the Investment Securities Regulation 
of the Comptroller of the Currency, as recently revised.
    (3) Section 1.3(b) of this title defines investment security to 
exclude securities ``which are predominantly speculative in nature'', so 
that, under R.S. 5136 and the regulation, the purchase of predominantly 
speculative securities is not permissible. When the market price of a 
convertible debenture is far in excess of its face value because of the 
conversion feature, and its price fluctuations parallel the fluctuations 
in the price of the stock into which it is convertible, the debenture is 
necessarily speculative. Market conditions may induce price fluctuations 
that may have no relationship to the quality of the debenture or even of 
the particular stock into which it can be converted.
    (4) Accordingly, it would appear that a bank is prohibited from 
purchasing convertible debentures in the circumstances described. 
However, uncertainty as to this matter could arise from the terms of 
Sec. 1.10 of this title (Comptroller's Revised Regulation), which might 
be read as indicating that a bank may purchase convertible securities 
generally, provided that the cost of such a security is written down 
promptly ``to an amount which represents the investment value of the 
security considered independently of the conversion feature''.
    (5) Quite apart from questions of interpretation of the revised 
regulation, however, it is to be noted that the law itself (paragraph 
Seventh of R.S. 5136) in effect forbids national banks and member State 
banks to purchase ``any shares of stock of any corporation''. When the 
market price of a convertible security reaches 200 percent or 300 
percent of its face value due to a rise in the price of the related 
stock, purchase of the convertible security is, for practical purposes, 
equivalent to the purchase of the stock it represents.
    (6) In the light of these statutory and regulatory provisions, it is 
the position of the Board of Governors that a member State bank may not 
lawfully invest in a convertible security whose price exceeds, by more 
than an insignificant amount, the investment value of the obligation, 
considered independently of the conversion feature. Adherence to this 
principle will avoid violations of the statute and regulation that would 
occur if a bank were to purchase convertible securities in such 
circumstances that the security necessarily would be ``predominantly 
speculative in nature'', for the reasons described, and the transaction 
would be tantamount to a purchase of corporate stock.

(12 U.S.C. 24, 335)

[[Page 594]]



Sec. 250.122   Underwriting of public Authority bonds payable from rents under lease with governmental entity having general taxing powers.

    (a) The Board of Governors has been asked whether securities of a 
public Authority that are to be paid from rents payable under a lease of 
the Authority's facilities to a governmental entity that possesses 
general powers of taxation, including property taxation, constitute 
``general obligations'' within the meaning of section 5136 of the U.S. 
Revised Statutes (12 U.S.C. 24). In cases where this question can be 
answered in the affirmative, member State banks of the Federal Reserve 
System may lawfully underwrite and deal in such securities, and invest 
therein without limitation on amount, as far as Federal banking law is 
concerned.
    (b) The Board understands that the issuing Authorities usually have 
no taxing powers and that their obligations are not, under pertinent 
State constitutional and statutory provisions as interpreted by the 
courts, ``debt'' of the lessee--that is, the governmental entity with 
general powers of taxation. However, whether a security constitutes a 
debt for purposes of State law is not determinative as to whether it is 
a general obligation within the meaning of section 5136, a Federal 
statute. (See Sec. 250.120.)
    (c) During recent Hearings before the Committee on Banking and 
Currency of the House of Representatives, published under the title 
``Increased Flexibility for Financial Institutions--1963'', the Board 
expressed its understanding of the meaning of the phrase ``general 
obligations of any State or of any political subdivision thereof'' as 
used in section 5136.
    (d) As the House Committee was informed, the Board understands that 
phrase to include ``only obligations that are supported by an 
unconditional promise to pay, directly or indirectly, an aggregate 
amount which (together with any other funds available for the purpose) 
will suffice to discharge, when due, all interest on and principal of 
such obligations, which promise (1) is made by a governmental entity 
that possesses general powers of taxation, including property taxation, 
and (2) pledges or otherwise commits the full faith and credit of said 
promisor; said term does not include obligations not so supported that 
are to be repaid only from specified sources such as the income from 
designated facilities or the proceeds of designated taxes.'' (Hearings, 
p. 1018.)
    (e) A major requirement of the foregoing definition is that a 
general obligation must be supported by general powers of taxation, 
including property taxation. The Board recognizes, however, that such 
support by general powers of taxation may be indirect as well as direct.
    (f) If a State (or other governmental entity having general powers 
of taxation) agrees unconditionally to pay to an Authority rentals that 
will be sufficient and will be used, in all events, to cover required 
payments of interest and principal on the relevant securities when due, 
the securities, in the opinion of the Board, are indirectly supported by 
general taxing powers, and, accordingly, constitute general obligations 
within the meaning of R.S. 5136. On the other hand, if the lease does 
not contain an unconditional promise of the State to provide sums 
sufficient, in all events, to cover required payments of interest and 
principal on the bonds of the lessor Authority as they become due, the 
securities cannot be considered general obligations.
    (g) The status of a particular issue of such lease-supported bonds 
thus depends upon the terms of the lease involved. Where the lease is 
for a term of years not less than the maximum maturity of the relevant 
bond issue, and the State unconditionally promises to pay rentals 
sufficient to cover all payments on the bonds as they become due, the 
bonds ordinarily will qualify as general obligations. Where the promise 
of the State is to pay a fixed dollar rental, the securities will not 
qualify as general obligations unless the lease provides that rental 
payments in amounts sufficient to service the bonds cannot be expended 
by the authority for any other purpose than the payment of principal and 
interest thereon.
    (h) This interpretation is intended to indicate the circumstances in 
which securities issued by public Authorities

[[Page 595]]

without taxing powers constitute general obligations that are eligible 
for underwriting by member banks, under R.S. 5136. The status of any 
particular issue can only be determined through examination of all 
relevant laws and contracts, in order to ascertain the actual legal and 
financial arrangements.

(12 U.S.C. 24, 335)



Sec. 250.123   Underwriting of notes payable from proceeds of subsequent sale of general obligation bonds.

    (a) The Board of Governors has received inquiries whether California 
Bond Anticipation Notes constitute general obligations of the State of 
California within the meaning of paragraph Seventh of section 5136 of 
the U.S. Revised Statutes (12 U.S.C. 24).
    (b) The Board understands that, in anticipation of the sale of 
general obligation bonds duly authorized, Finance Committees of certain 
public authorities of the State are empowered, under section 16736 of 
the Government Code of California, to direct the State Treasurer to 
issue Bond Anticipation Notes whenever ``the committee deems it in the 
best interests of the State''.
    (c) Although there appears to be no judicial decision as to the 
nature of Bond Anticipation Notes under California law, the State 
Attorney General has issued an opinion (No. 63/182 of Nov. 8, 1963) 
concluding that the Notes do not constitute ``a general obligation of 
the State in the sense that they are secured by the State General Fund 
and general taxing power of the State''.
    (d) While the California Attorney General's opinion is not 
controlling in a determination as to whether the Notes are general 
obligations within the meaning of section 5136, a Federal statute, it is 
significant in such a determination insofar as it indicates that the 
Notes are not secured by the State's ``general powers of taxation, 
including property taxation'', a sine qua non of general obligations 
under section 5136. (See Sec. 250.122.)
    (e) Although the Board of Governors has recognized that the pledge 
of the ``general powers of taxation, including property taxation'' may 
be indirect as well as direct, with respect to payment of the principal 
of its Bond Anticipation Notes the State of California does not commit 
its general taxing powers either directly or indirectly. The principal 
of such Notes is payable solely from the proceeds of subsequent sale of 
other securities, which means that the State retires the Notes through 
the exercise of its borrowing powers as distinct from its taxing powers.
    (f) That the general obligation bonds, from the proceeds of whose 
sale the Notes are expected to be paid, will pledge the State's taxing 
powers cannot be considered an indirect pledge of that power to secure 
the Notes, because the pledge of the State's taxing powers attaches to 
the general obligation bonds only after they are sold and can in no way 
be utilized for the payment of the Notes. In order for obligations to be 
secured directly or indirectly by general taxing power, that power must 
be available for use, if necessary, to provide funds for the required 
payments of both principal and interest.
    (g) The Board of Governors accordingly concludes that California 
Bond Anticipation Notes do not constitute general obligations within the 
meaning of section 5136. The Notes, therefore, would not be eligible for 
underwriting and dealing in by member State banks.

(12 U.S.C. 24, 335)



Sec. 250.140   Member bank acquisition of stock of another bank.

    (a) The Board of Governors has recently considered, in several 
cases, whether a member bank may lawfully acquire stock of another bank. 
In some instances, a direct acquisition was involved; in another, the 
stock was to be purchased by a wholly owned subsidiary of the member 
bank. In one instance, the bank stock was to be purchased for cash; in 
others, the consideration was to consist of newly issued shares of stock 
of the acquiring bank. All of the cases involved acquisition of a 
majority of the stock of the subsidiary bank.
    (b) The Board reaffirmed its position, originally taken shortly 
after enactment of the Banking Act of 1933 (1933 Federal Reserve 
Bulletin 449), that such acquisitions by member banks are not legally 
permissible. Section 5136 of the U.S. Revised Statutes (12 U.S.C. 24) 
forbids a national bank to purchase

[[Page 596]]

``for its own account * * * any shares of stock of any corporation.'' 
That prohibition is also applicable to State member banks, under section 
9 of the Federal Reserve Act (12 U.S.C. 335). Legislative history and 
judicial interpretations in this field support the view that Congress 
did not intend to permit national banks or State member banks to 
acquire, for their own account, the stock of other banks, either 
directly or through intermediary corporations. The statutory prohibition 
applies to any voluntary acquisition of the stock of another bank, 
whether the consideration given for the stock consists of cash, other 
bank assets, or shares of stock of the acquiring bank.
    (c) The Board concluded that such acquisitions would also violate 
the provisions of section 5155 of the Revised Statutes and section 9 of 
the Federal Reserve Act (12 U.S.C. 36 and 321) that prohibit the 
establishment of branches by member banks except under prescribed 
conditions. Those provisions of law were intended to permit national 
banks and State member banks to operate additional banking offices only 
with the prior approval of the Comptroller of the Currency or the Board 
of Governors, respectively. When one bank owns all or a majority of the 
stock of another, the offices and resources of the latter are a part of 
the banking organization owned by, and subject to the control of, the 
parent bank, despite the existence of separate corporate entities. 
Consequently, if such acquisitions of stock were permissible, member 
banks could conduct banking operations through additional offices 
without obtaining supervisory approval, which would undermine an 
important regulatory purpose of the Federal statutes relating to 
multiple-office banking.
    (d) This incompatibility with the Federal banking statutes is 
particularly apparent when the offices of the subsidiary bank are 
situated in places where the acquiring bank may not lawfully establish 
and maintain direct branches, under applicable State and Federal laws. 
If a bank in those circumstances could acquire an existing bank or 
establish a new one, it could effectively circumvent public policy and 
accomplish indirectly what it could not accomplish directly--namely, 
ownership and control of banking offices in places (even in another 
State) where it is forbidden by law to conduct banking operations.

(12 U.S.C. 24, 36, 321, 335)



Sec. 250.141   Member bank purchase of stock of ``operations subsidiaries.''

    (a) The Board of Governors has reexamined its position that the so-
called ``stock-purchase prohibition'' of section 5136 of the Revised 
Statutes (12 U.S.C. 24), which is made applicable to member State banks 
by the 20th paragraph of section 9 of the Federal Reserve Act (12 U.S.C. 
335), forbids the purchase by a member bank ``for its own account of any 
shares of stock of any corporation'' (the statutory language), except as 
specifically permitted by provisions of Federal law or as comprised 
within the concept of ``such incidental powers as shall be necessary to 
carry on the business of banking'', referred to in the first sentence of 
paragraph ``Seventh'' of R.S. 5136.
    (b) In 1966 the Board expressed the view that said incidental powers 
do not permit member banks to purchase stock of ``operations 
subsidiaries''--that is, organizations designed to serve, in effect, as 
separately-incorporated departments of the bank, performing, at 
locations at which the bank is authorized to engage in business, 
functions that the bank is empowered to perform directly. (See 1966 
Federal Reserve Bulletin 1151.)
    (c) The Board now considers that the incidental powers clause 
permits a bank to organize its operations in the manner that it believes 
best facilitates the performance thereof. One method of organization is 
through departments; another is through separate incorporation of 
particular operations. In other words, a wholly owned subsidiary 
corporation engaged in activities that the bank itself may perform is 
simply a convenient alternative organizational arrangement.
    (d) Reexamination of the apparent purposes and legislative history 
of the stock-purchase prohibition referred to above has led the Board to 
conclude that such prohibition should not be interpreted to preclude a 
member bank from adopting such an organizational

[[Page 597]]

arrangement unless its use would be inconsistent with other Federal law, 
either statutory or judicial.
    (e) In view of the relationship between the operation of certain 
subsidiaries and the branch banking laws, the Board has also reexamined 
its rulings on what constitutes ``money lent'' for the purposes of 
section 5155 of the Revised Statutes (12 U.S.C. 36), which provides that 
``The termbranch * * * shall be held to include any branch bank, branch 
office, branch agency, additional office, or any branch place of 
business * * * at which deposits are received, or checks paid, or money 
lent.''1
---------------------------------------------------------------------------

    1In the Board's judgment, the statutory enumeration of three 
specific functions that establish branch status is not meant to be 
exclusive but to assure that offices at which any of these functions is 
performed are regarded as branches by the bank regulatory authorities. 
In applying the statute the emphasis should be to assure that 
significant banking functions are made available to the public only at 
governmentally authorized offices.
---------------------------------------------------------------------------

    (f) The Board noted in its 1967 interpretation that offices that are 
open to the public and staffed by employees of the bank who regularly 
engage in soliciting borrowers, negotiating terms, and processing 
applications for loans (so-called loan production offices) constitute 
branches. (1967 Federal Reserve Bulletin 1334.) The Board also noted 
that later in that year it considered the question whether a bank 
holding company may acquire the stock of a so-called mortgage company on 
the basis that the company would be engaged in ``furnishing services to 
or performing services for such bank holding company or its banking 
subsidiaries'' (the so-called servicing exemption of section 4(c)(1)(C) 
of the Bank Holding Company Act; 12 U.S.C. 1843). In concluding 
affirmatively, the Board stated that ``the appropriate test for 
determining whether the company may be considered as within the 
servicing exemption is whether the company will perform as principal any 
banking activities--such as receiving deposits, paying checks, extending 
credit, conducting a trust department, and the like. In other words, if 
the mortgage company is to act merely as an adjunct to a bank for the 
purpose of facilitating the bank's operations, the company may 
appropriately be considered as within the scope of the servicing 
exemption.'' (1967 Federal Reserve Bulletin 1911; 12 CFR 225.122.)
    (g) The Board believes that the purposes of the branch banking laws 
and the servicing exemption are related. Generally, what constitutes a 
branch does not constitute a servicing organization and, vice versa, an 
office that only performs servicing functions should not be considered a 
branch. (See 1958 Federal Reserve Bulletin 431, last paragraph; 12 CFR 
225.104(e).) When viewed together, the above-cited interpretations on 
loan production offices and mortgage companies represent a departure 
from this principle. In reconsidering the laws involved, the Board has 
concluded that a test similar to that adopted with respect to the 
servicing exemption under the Bank Holding Company Act is appropriate 
for use in determining whether or not what constitutes money [is] lent 
at a particular office, for the purpose of the Federal branch banking 
laws.
    (h) Accordingly, the Board considers that the following activities, 
individually or collectively, do not constitute the lending of money 
within the meaning of section 5155 of the revised statutes: Soliciting 
loans on behalf of a bank (or a branch thereof), assembling credit 
information, making property inspections and appraisals, securing title 
information, preparing applications for loans (including making 
recommendations with respect to action thereon), soliciting investors to 
purchase loans from the bank, seeking to have such investors contract 
with the bank for the servicing of such loans, and other similar agent-
type activities. When loans are approved and funds disbursed solely at 
the main office or a branch of the bank, an office at which only 
preliminary and servicing steps are taken is not a place where money 
[is] lent. Because preliminary and servicing steps of the kinds 
described do not constitute the performance of significant banking 
functions of the type that Congress contemplated should be performed 
only at governmentally approved offices, such office is accordingly not 
a branch.

[[Page 598]]

    (i) To summarize the foregoing, the Board has concluded that, 
insofar as Federal law is concerned, a member bank may purchase for its 
own account shares of a corporation to perform, at locations at which 
the bank is authorized to engage in business, functions that the bank is 
empowered to perform directly. Also, a member bank may establish and 
operate, at any location in the United States, a loan production office 
of the type described herein. Such offices may be established and 
operated by the bank either directly, or indirectly through a wholly-
owned subsidiary corporation.
    (j) This interpretation supersedes both the Board's 1966 ruling on 
operations subsidiaries and its 1967 ruling on loan production offices, 
referred to above.

(12 U.S.C. 24, 36, 321, 335)

[33 FR 11813, Aug. 21, 1968; 43 FR 53414, Nov. 16, 1978]



Sec. 250.142   Meaning of ``obligor or maker'' in determining limitation on securities investments by member State banks.

    (a) From time to time the New York State Dormitory Authority offers 
issues of bonds with respect to each of which a different educational 
institution enters into an agreement to make rental payments to the 
Authority sufficient to cover interest and principal thereon when due. 
The Board of Governors of the Federal Reserve System has been asked 
whether a member State bank may invest up to 10 percent of its capital 
and surplus in each such issue.
    (b) Paragraph Seventh of section 5136 of the U.S. Revised Statutes 
(12 U.S.C. 24) provides that ``In no event shall the total amount of the 
investment securities of any one obligor or maker, held by [a national 
bank] for its own account, exceed at any time 10 per centum of its 
capital stock * * * and surplus fund''. That limitation is made 
applicable to member State banks by the 20th paragraph of section 9 of 
the Federal Reserve Act (12 U.S.C. 335).
    (c) The Board considers that, within the meaning of these provisions 
of law, obligor does not include any person that acts solely as a 
conduit for transmission of funds received from another source, 
irrespective of a promise by such person to pay principal or interest on 
the obligation. While an obligor does not cease to be such merely 
because a third person has agreed to pay the obligor amounts sufficient 
to cover principal and interest on the obligations when due, a person 
that promises to pay an obligation, but as a practical matter has no 
resources with which to assume payment of the obligation except the 
amounts received from such third person, is not an obligor within the 
meaning of section 5136.
    (d) Review of the New York Dormitory Authority Act (N.Y. Public 
Authorities Law sections 1675-1690), the Authority's interpretation 
thereof, and materials with respect to the Authority's ``Revenue Bonds, 
Mills College of Education Issue, Series A'' indicates that the 
Authority is not an obligor on those and similar bonds. Although the 
Authority promises to make all payments of principal and interest, a 
bank that invests in such bonds cannot be reasonably considered as doing 
so in reliance on the promise and responsibility of the Authority. 
Despite the Authority's obligation to make payments on the bonds, if the 
particular college fails to perform its agreement to make rental 
payments to the Authority sufficient to cover all payments of bond 
principal and interest when due, as a practical matter the sole source 
of funds for payments to the bondholder is the particular college. The 
Authority has general borrowing power but no resources from which to 
assure repayment of any borrowing except from the particular colleges, 
and rentals received from one college may not be used to service bonds 
issued for another.
    (e) Accordingly, the Board has concluded that each college for which 
the Authority issues obligations is the sole obligor thereon. A member 
State bank may therefore invest an amount up to 10 percent of its 
capital and surplus in the bonds of a particular college that are 
eligible investments under the Investment Securities Regulation of the 
Comptroller of the Currency (12 CFR Part 1), whether issued directly or 
indirectly through the Dormitory Authority.

(12 U.S.C. 24, 335)

[[Page 599]]



Sec. 250.143   Member bank purchase of stock of foreign operations subsidiaries.

    (a) In a previous interpretation, the Board determined that a State 
member bank would not violate the ``stock-purchase prohibition'' of 
section 5136 of the Revised Statutes (12 U.S.C. 24 para. 7) by 
purchasing and holding the shares of a corporation which performs ``at 
locations at which the bank is authorized to engage in business, 
functions that the bank is empowered to perform directly''.1 (1968 
Federal Reserve Bulletin 681, 12 CFR 250.141). The Board of Governors 
has been asked by a State member bank whether, under that 
interpretation, the bank may establish such a so-called operations 
subsidiary outside the United States.
---------------------------------------------------------------------------

    1National banking associations are prohibited by section 5136 
of the Revised Statutes from purchasing and holding shares of any 
corporation except those corporations whose shares are specifically made 
eligible by statute. This prohibition is made applicable to State member 
banks by section 9 para. 20 of the Federal Reserve Act (12 U.S.C. 335).
---------------------------------------------------------------------------

    (b) In the above interpretation the Board viewed the creation of a 
wholly-owned subsidiary which engaged in activities that the bank itself 
could perform directly as an alternative organizational arrangement that 
would be permissible for member banks unless ``its use would be 
inconsistent with other Federal law, either statutory or judicial''.
    (c) In the Board's judgment, the use by member banks of operations 
subsidiaries outside the United States would be clearly inconsistent 
with the statutory scheme of the Federal Reserve Act governing the 
foreign investments and operations of member banks. It is clear that 
Congress has given member banks the authority to conduct operations and 
make investments outside the United States only through gradually 
adopting a series of specific statutory amendments to the Federal 
Reserve Act, each of which has been carefully drawn to give the Board 
approval, supervisory, and regulatory authority over those operations 
and investments.
    (d) As part of the original Federal Reserve Act, national banks 
were, with the Board's permission, given the power to establish foreign 
branches.2 In 1916, Congress amended the Federal Reserve Act to 
permit national banks to invest in international or foreign banking 
corporations known as Agreement Corporations, because such corporations 
were required to enter into an agreement or understanding with the Board 
to restrict their operations. Subject to such limitations or 
restrictions as the Board may prescribe, such Agreement corporations may 
principally engage in international or foreign banking, or banking in a 
dependency or insular possession of the United States, either directly 
or through the agency, ownership or control of local institutions in 
foreign countries, or in such dependencies or insular possessions of the 
United States. In 1919 the enactment of section 25(a) of the Federal 
Reserve Act (the ``Edge Act'') permitted national banks to invest in 
federally chartered international or foreign banking corporations (so-
called Edge Corporations) which may engage in international or foreign 
banking or other international or foreign financial operations, or in 
banking or other financial operations in a dependency or insular 
possession of the United States, either directly or through the 
ownership or control of local institutions in foreign countries, or in 
such dependencies or insular possessions. Edge Corporations may only 
purchase and hold stock in certain foreign subsidiaries with the consent 
of the Board. And in 1966, Congress amended section 25 of the Federal 
Reserve Act to allow national banks to invest directly in the shares of 
a foreign bank. In the Board's judgment, the above statutory scheme of 
the Federal Reserve Act evidences a

[[Page 600]]

clear Congressional intent that member banks may only purchase and hold 
stock in subsidiaries located outside the United States through the 
prescribed statutory provisions of sections 25 and 25(a) of the Federal 
Reserve Act. It is through these statutorily prescribed forms of 
organization that member banks must conduct their operations outside the 
United States.
---------------------------------------------------------------------------

    2Under section 9 of the Federal Reserve Act, State member 
banks, subject, of course, to any necessary approval from their State 
banking authority, may establish foreign branches on the same terms and 
subject to the same limitations and restrictions as are applicable to 
the establishment of branches by national banks (12 U.S.C. 321). State 
member banks may also purchase and hold shares of stock in Edge or 
Agreement Corporations and foreign banks because national banks, as a 
result of specific statutory exceptions to the stock purchase 
prohibitions of section 5136, can purchase and hold stock in these 
Corporations or banks.
---------------------------------------------------------------------------

    (e) To summarize, the Board has concluded that a member bank may 
only organize and operate operations subsidiaries at locations in the 
United States. Investments by member banks in foreign subsidiaries must 
be made either with the Board's permission under section 25 of the 
Federal Reserve Act or, with the Board's consent, through an Edge 
Corporation subsidiary under section 25(a) of the Federal Reserve Act or 
through an Agreement Corporation subsidiary under section 25 of the 
Federal Reserve Act. In addition, it should be noted that bank holding 
companies may acquire the shares of certain foreign subsidiaries with 
the Board's approval under section 4(c)(13) of the Bank Holding Company 
Act. These statutory sections taken together already give member banks a 
great deal of organizational flexibility in conducting their operations 
abroad.

(Interprets and applies 12 U.S.C. 24, 335)

[40 FR 12252, Mar. 18, 1975]



Sec. 250.160   Federal funds transactions.

    (a) It is the position of the Board of Governors of the Federal 
Reserve System that, for purposes of provisions of law administered by 
the Board, a transaction in Federal funds involves a loan on the part of 
the selling bank and a borrowing on the part of the purchasing bank.
    (b) For example, for purposes of section 23A of the Federal Reserve 
Act (12 U.S.C. 371c), a sale of Federal funds by a member bank, whether 
State or national, to an affiliate of the member bank is subject to the 
limitations prescribed in that section.

(12 U.S.C. 371c)



Sec. 250.161   Capital notes and debentures as ``capital,'' ``capital stock,'' or ``surplus.''

    (a) The Board of Governors has been presented with the question 
whether capital notes or debentures issued by banks, that are 
subordinated to deposit liabilities, may be considered as part of a 
bank's capital stock, capital, or surplus, for purposes of various 
provisions of the Federal Reserve Act that impose requirements or 
limitations upon member banks.
    (b) A note or debenture is an evidence of debt, embodying a promise 
to pay a certain sum of money on a specified date. Such a debt 
instrument issued by a commercial bank is quite different from its 
stock, which evidences a proprietary or equity interest in the assets of 
the bank. Likewise, the proceeds of a note or debenture that must be 
repaid on a specified date cannot reasonably be regarded as surplus 
funds of the issuing corporation.
    (c) Federal law (12 U.S.C. 51c) expressly provides that the term 
capital, as used in provisions of law relating to the capital of 
national banks, shall mean ``the amount of unimpaired common stock plus 
the amount of preferred stock outstanding and unimpaired.'' In addition, 
when Congress in 1934 deemed it desirable to permit certain notes and 
debentures--those sold by State banks to the Reconstruction Finance 
Corporation--to be considered as capital or capital stock for purposes 
of membership in the Federal Reserve System, Congress felt it necessary 
to implement that objective by a specific amendment to section 9 of the 
Federal Reserve Act (12 U.S.C. 321). These plain evidences of 
Congressional intent compel the conclusion that, for purposes of 
statutory limitations and requirements, capital notes and debentures may 
not properly be regarded as part of either capital or capital stock.
    (d) Accordingly, under the law, capital notes or debentures do not 
constitute capital, capital stock, or surplus for the purposes of 
provisions of the Federal Reserve Act, including, among others, those 
that limit member banks

[[Page 601]]

with respect to, purchases of investment securities (12 U.S.C. 24, 335), 
investments in bank premises (12 U.S.C. 371d), loans on stock or bond 
collateral (12 U.S.C. 248(m)), deposits with nonmember banks (12 U.S.C. 
463), and bank acceptances (12 U.S.C. 372, 373), as well as provisions 
that limit the amount of paper of one borrower that may be discounted by 
a Federal Reserve Bank for any member bank (12 U.S.C. 84, 330, 345).

(12 U.S.C. 24, 84, 248, 321, 330, 335, 345, 371c, 371d, 372, 373, 463)

[33 FR 9866, July 10, 1968, as amended at 61 FR 19806, May 3, 1996]



Sec. 250.162   Undivided profits as ``capital stock and surplus''.

    (a) The Board of Governors has reexamined the question whether a 
member bank's undivided profits may be considered as part of its capital 
stock and surplus, as that or a similar term is used in provisions of 
the Federal Reserve Act that limit member banks with respect to the 
following: Purchases of investment securities (12 U.S.C. 335), loans on 
stock or bond collateral (12 U.S.C. 248(m)), deposits with nonmember 
banks (12 U.S.C. 463), bank acceptances (12 U.S.C. 372, 373), 
investments in and by Edge and Agreement corporations (12 U.S.C. 601, 
615, 618), and the amount of paper of one borrower that may be 
discounted or accepted as collateral for an advance by a Federal Reserve 
Bank (12 U.S.C. 330, 345, 347).
    (b) Upon such reexamination the Board concludes that its negative 
view expressed in 1964 is unnecessarily restrictive in the light of the 
Congressional purpose in establishing limitations on bank activities in 
terms of a bank's capital structure. Accordingly, the Board has decided 
that, for the purposes of the limitations set forth above, undivided 
profits may be included as part of capital stock and surplus.
    (c) As used herein, the term undivided profits includes paid-in or 
earned profits (unearned income must be deducted); reserves for loan 
losses or bad debts, less the amount of tax which would become payable 
with respect to the tax-free portion of the reserve if such portion were 
transferred from the reserve; valuation reserves for securities; and 
reserves for contingencies. It does not include reserves for dividends 
declared or reserves for taxes, interest and expenses.

(Interprets and applies 12 U.S.C. 24, 84, 330, 335, 345, 347, 371c, 372, 
373, 464, 601, 615, 618)

[36 FR 5673, Mar. 26, 1971, as amended at 61 FR 19806, May 3, 1996]



Sec. 250.163   Inapplicability of amount limitations to ``ineligible acceptances.''

    (a) Since 1923, the Board has been of the view that ``the acceptance 
power of State member banks is not necessarily confined to the 
provisions of section 13 (of the Federal Reserve Act), inasmuch as the 
laws of many States confer broader acceptance powers upon their State 
banks, and certain State member banks may, therefore, legally make 
acceptances of kinds which are not eligible for rediscount, but which 
may be eligible for purchase by Federal reserve banks under section 
14.'' 1923 FR bulletin 316, 317.
    (b) In 1963, the Comptroller of the Currency ruled that ``[n]ational 
banks are not limited in the character of acceptances which they may 
make in financing credit transactions, and bankers' acceptances may be 
used for such purpose, since the making of acceptances is an essential 
part of banking authorized by 12 U.S.C. 24.'' Comptroller's manual 
7.7420. Therefore, national banks are authorized by the Comptroller to 
make acceptances under 12 U.S.C. 24, although the acceptances are not 
the type described in section 13 of the Federal Reserve Act.
    (c) A review of the legislative history surrounding the enactment of 
the acceptance provisions of section 13, reveals that Congress believed 
in 1913, that it was granting to national banks a power which they would 
not otherwise possess and had not previously possessed. See remarks of 
Congressmen Phelan, Helvering, Saunders, and Glass, 51 Cong. Rec. 4676, 
4798, 4885, and 5064 (September 10, 12, 13, and 17 of 1913). 
Nevertheless, the courts have long recognized the evolutionary nature of 
banking and of the scope of the ``incidental powers'' clause of 12 
U.S.C. 24. See Merchants Bank v. State Bank, 77 U.S. 604 (1870) 
(upholding the power of a national bank to certify a check under

[[Page 602]]

the ``incidental powers'' clause of 12 U.S.C. 24).
    (d) It now appears that, based on the Board's 1923 ruling, and the 
Comptroller's 1963 ruling, both State member banks and national banks 
may make acceptances which are not of the type described in section 13 
of the Federal Reserve Act. Yet, this appears to be a development that 
Congress did not contemplate when it drafted the acceptance provisions 
of section 13.
    (e) The question is presented whether the amount limitations of 
section 13 should apply to acceptances made by a member bank that are 
not of the type described in section 13. (The amount limitations are of 
two kinds:
    (1) A limitation on the amount that may be accepted for any one 
customer, and
    (2) A limitation on the aggregate amount of acceptances that a 
member bank may make.)

In interpreting any Federal statutory provision, the primary guide is 
the intent of Congress, yet, as noted earlier, Congress did not 
contemplate in 1913, the development of so-called ``ineligible 
acceptances.'' (Although there is some indication that Congress did 
contemplate State member banks' making acceptances of a type not 
described in section 13 [remarks of Congressman Glass, 51 Cong. Rec. 
5064], the primary focus of congressional attention was on the 
acceptance powers of national banks.) In the absence of an indication of 
congressional intent, we are left to reach an interpretation that is in 
harmony with the language of the statutory provisions and with the 
purposes of the Federal Reserve Act.
    (f) Section 13 authorizes acceptances of two types. The seventh 
paragraph of section 13 (12 U.S.C. 372) authorizes certain acceptances 
that arise out of specific transactions in goods. (These acceptances are 
sometimes referred to as ``commercial acceptances.'') The 12th paragraph 
of section 13 authorizes member banks to make acceptances ``for the 
purpose of furnishing dollar exchange as required by the usages of 
trade'' in foreign transactions. (Such acceptances are referred to as 
``dollar exchange acceptances.'') In the 12th paragraph, there is a 10 
percent limit on the amount of dollar exchange acceptances that may be 
accepted for any one customer (unless adequately secured) and a 
limitation on the aggregate amount of dollar exchange acceptances that a 
member bank may make. (The 12th paragraph, in imposing these 
limitations, refers to the acceptance of ``such drafts or bills of 
exchange referred to (in) this paragraph.'') Similarly, the seventh 
paragraph imposes on commercial acceptances a parallel 10 percent per-
customer limitation, and limitations on the aggregate amount of 
commercial acceptances. (In the case of the aggregate limitations, the 
seventh paragraph states that ``no bank shall accept such bills to an 
amount'' in excess of the aggregate limit; the reference to ``such 
bills'' makes clear that the limitation is only in respect of drafts or 
bills of exchange of the specific type described in the seventh 
paragraph.)
    (g) Based on the language and parallel structure of the 7th and 12th 
paragraphs of section 13, and in the absence of a statement of 
congressional intent in the legislative history, the Board concludes 
that the per-customer and aggregate limitations of the 12th paragraph 
apply only to acceptances of the type described in that paragraph 
(dollar exchange acceptances), and the per-customer and aggregate 
limitations of the 7th paragraph (12 U.S.C. 372) apply only to 
acceptances of the type described in that paragraph.

(Interprets and applies 12 U.S.C. 372 and the 12th paragraph of sec. 13 
of the Federal Reserve Act, which paragraph is omitted from the United 
States Code)

[38 FR 13728, May 25, 1973]



Sec. 250.164  Bankers' acceptances.

    (a) Section 207 of the Bank Export Services Act (title II of Pub. L. 
97-290) (``BESA'') raised the limits on the aggregate amount of eligible 
bankers' acceptances (``BAs'') that may be created by an individual 
member bank from 50 per cent (or 100 per cent with the permission of the 
Board) of its paid up and unimpaired capital stock and surplus 
(``capital'') to 150 per cent (or 200 per cent with the permission of 
the Board) of its capital. Section 207 also prohibits a member bank from 
creating eligible

[[Page 603]]

BAs for any one person in the aggregate in excess of 10 per cent of the 
institution's capital. This section of the BESA applies the same limits 
applicable to member banks to U.S. branches and agencies of foreign 
banks that are subject to reserve requirements under section 7 of the 
International Banking Act of 1978 (12 U.S.C. 3105). The Board is 
clarifying the proper meaning of the seventh paragraph of section 13 of 
the Federal Reserve Act, as amended by the BESA.
    (b)(1) This section of the BESA provides that any portion of an 
eligible BA created by an institution subject to the BA limitations 
contained therein (``covered bank'') that is conveyed through a 
participation to another covered bank shall not be included in the 
calculation of the creating bank's BA limits. The amount of the 
participation is to be applied to the calculation of the BA limits 
applicable to the covered bank receiving the participation. Although a 
covered bank that has reached its 150 or 200 percent limit can continue 
to create eligible acceptances by conveying participations to other 
covered banks, Congress has in effect imposed an aggregate limit on the 
eligible acceptances that may be created by all covered banks equal to 
the sum of 150 or 200 percent of the capital of all covered banks.
    (2) The Board has clarified that under the statute an eligible BA 
created by a covered bank that is conveyed through a participation to an 
institution that is not subject to the limitations of this section of 
the BESA continues to be included in the calculation of the limits 
applicable to the creating covered bank. This will ensure that the total 
amount of eligible BAs that may be created by covered banks does not 
exceed the limitations established by Congress. In addition, this 
ensures that participations in acceptances are not used as a device for 
the avoidance of reserve requirements. Finally, this promotes the 
Congressional intent, with respect to covered banks, that foreign and 
domestic banks be on an equal footing and under the same legal 
requirements.
    (3) In addition, the amount of a participation received by a covered 
bank from an institution not covered by the limitations of the Act is to 
be included in the calculation of the limits applicable to the covered 
bank receiving the participation. This result is based upon the language 
of the statute which includes within a covered bank's limits on eligible 
BAs outstanding the amount of participations received by the covered 
bank. This provision reflects Congressional intent that a covered bank 
not be obligated on eligible bankers' acceptances, and participations 
therein, for an amount in excess of 150 or 200 percent of the 
institution's capital.
    (c) The statute also provides that eligible acceptances growing out 
of domestic transactions are not to exceed 50 percent of the aggregate 
of all eligible acceptances authorized for covered banks. The Board has 
clarified that this 50 percent limitation is applicable to the maximum 
permissible amount of eligible BAs (150 or 200 percent of capital), 
regardless of the bank's amount of eligible acceptances outstanding. The 
statutory language prior to the BESA amendment made clear that covered 
banks could issue eligible acceptances growing out of domestic 
transactions up to 50 percent of the amount of the total permissible 
eligible acceptances the bank could issue. The legislative history of 
the BESA indicates no intent to change this domestic acceptance 
limitation.
    (d) The statute also provides that for the purpose of the 
limitations applicable to U.S. branches and agencies of foreign banks, a 
branch's or agency's capital is to be calculated as the dollar 
equivalent of the capital stock and surplus of the parent foreign bank 
as determined by the Board. The Board has clarified that for purposes of 
calculating the BA limits applicable to U.S. branches and agencies of 
foreign banks, the identity of the parent foreign bank is generally the 
same as for reserve requirement purposes; that is, the bank entity that 
owns the branch or agency most directly. The Board has also clarified 
that the procedures currently used for purposes of reporting to the 
Board on the Annual Report of Foreign Banking Organizations, Form FR Y-
7, are also to be used in the calculation of the acceptance limits 
applicable to U.S. branches and agencies of foreign

[[Page 604]]

banks. (The FR Y-7 generally requires financial statements prepared in 
accordance with local accounting practices and an explanation of the 
accounting terminology and the major features of the accounting 
standards used in the preparation of the financial statements.) 
Conversions to the dollar equivalent of the worldwide capital of the 
foreign bank should be made periodically, but in no event less 
frequently than quarterly. In this regard, the Board recognizes the need 
to be flexible in dealing with the effect of foreign exchange rate 
fluctuations on the calculation of the worldwide capital of the parent 
foreign bank. Each foreign bank is to be responsible for coordinating 
the BA activity of its U.S. branches and agencies (including the 
aggregation of such activity) and establishing procedures that ensure 
that examiners will be able readily to determine compliance with the 
BESA limits.

(Sec. 13, Federal Reserve Act (12 U.S.C. 372))

[48 FR 28975, June 24, 1983]



Sec. 250.165  Bankers' acceptances: definition of participations.

    (a)(1) Section 207 of the Bank Export Services Act (Title II of Pub. 
L. 97-290) (``BESA'') raised the limits on the aggregate amount of 
eligible bankers' acceptances (``BAs'') that may be created by a member 
bank from 50 percent (or 100 percent with the permission of the Board) 
of its paid up and unimpaired capital stock and surplus (``capital'') to 
150 percent (or 200 percent with the permission of the Board) of its 
capital. Section 207 also prohibits a member bank from creating eligible 
BAs for any one person in the aggregate in excess of 10 percent of the 
institution's capital. Eligible BAs growing out of domestic transactions 
are not to exceed 50 percent of the aggregate of all eligible 
acceptances authorized for a member bank. This section of the BESA 
applies the same limits applicable to member banks to U.S. branches and 
agencies of foreign banks that are subject to reserve requirements under 
section 7 of the International Banking Act of 1978 (12 U.S.C. 3105).\1\
---------------------------------------------------------------------------

    \1\ The institutions subject to the BA limitations of BESA will 
hereinafter be referred to as ``covered banks.''
---------------------------------------------------------------------------

    (2) This section of the BESA also provides that any portion of an 
eligible BA created by a covered bank (``senior bank'') that is conveyed 
through a ``participation agreement'' to another covered bank (``junior 
bank'') shall not be included in the calculation of the senior bank's 
bankers' acceptance limits established by section 207 of BESA.\2\ 
However, the amount of the participation is to be included in the BA 
limits applicable to the junior bank. The language of the statute does 
not define what constitutes a participation agreement for purposes of 
the applicability of the BESA limitations. However, the statute does 
authorize the Board to further define any of the terms used in section 
207 of the BESA (12 U.S.C. 372(g)). The Board is clarifying the term 
participation for purposes of the BA limitations of the BESA.
---------------------------------------------------------------------------

    \2\ The use of the terms senior bank and junior bank has no 
implications regarding priority of claims. These terms merely represent 
a shorthand method of identifying the depository institution that has 
created the acceptance and conveyed the participation (senior bank) and 
the depository institution that has received the participation (junior 
bank).
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    (b) The legislative history of section 207 of the BESA indicates 
that Congress intended that the junior bank be obligated to the senior 
bank in the event that the account party defaults on its obligation to 
pay, but that the junior bank need not also be obligated to pay the 
holder of the acceptance at the time the BA is presented for payment. H. 
Rep. No. 97-629, 97th Cong., 2nd Sess. 15 (1982); 128 Cong. Rec. H 4647 
(daily ed. July 27, 1982) (remarks by Rep. Barnard): and 128 Cong. Rec. 
H 8462 (daily ed. October 1, 1982) (remarks by Rep. Barnard). The 
legislative history also indicates that Congress intended that eligible 
BAs in which participations had been conveyed not be required to 
indicate the name(s) (or interest(s)) of the junior bank(s) on the 
acceptance in order for the BA to be excluded from the BESA limitations 
applicable to the senior bank. 128 Cong.

[[Page 605]]

Rec. S 12237 (daily ed. September 24, 1982) (remarks of Senators Heinz 
and Garn): and 128 Cong. Rec. H 4647 (daily ed. July 27, 1982) (remarks 
of Rep. Barnard).
    (c)(1) In view of Congressional intent with regard to what 
constitutes a participation in an eligible BA, the Board has determined 
that, for purposes of the BESA limits, a participation must satisfy the 
following two minimum requirements:
    (i) A written agreement entered into between the junior and senior 
bank under which the junior bank acquires the senior bank's claim 
against the account party to the extent of the amount of the 
participation that is enforceable in the event that the account party 
fails to perform in accordance with the terms of the acceptance; and
    (ii) The agreement between the junior and senior bank provides that 
the senior bank obtains a claim against the junior bank to the extent of 
the amount of the participation that is enforceable in the event the 
account party fails to perform in accordance with the terms of the 
acceptance.
    (2) Consistent with Congressional intent, the minimum requirements 
do not require the junior bank to be obligated to pay the holder of the 
acceptance at the time the BA is presented for payment. Similarly, the 
minimum requirements do not require the name(s) or interest(s) of the 
junior bank(s) to appear on the face of the acceptance.
    (3) An eligible BA that is conveyed through a participation that 
does not satisfy these minimum requirements would continue to be 
included in the BA limits applicable to the senior bank. Further, an 
eligible BA conveyed to a covered bank through a participation that 
provided for additional rights and obligations among the parties would 
be excluded from the BESA limitations of the senior bank provided the 
minimum requirements were satisfied.
    (4) A participation structured pursuant to these minimum 
requirements would be as follows: Upon the conveyance of the 
participation, the senior bank retains its entire obligation to pay the 
holder of the BA at maturity. The senior bank has a claim against the 
junior bank to the extent of the amount of the participation that is 
enforceable in the event the account party fails to perform in 
accordance with the terms of the acceptance. Similarly, the junior bank 
has a corresponding claim against the account party to the extent of the 
amount of the participation that is enforceable in the event the account 
party fails to perform in accordance with the terms of the acceptance.
    (d)(1) The Board is not requiring the senior bank and the account 
party specifically to agree that the senior bank's rights are assignable 
because the Board believes such rights to be assignable even in the 
absence of an explicit agreement.
    (2) The junior and senior banks may contract among themselves as to 
which party(ies) have the responsibility for administering the 
arrangement, enforcing claims, or exercising remedies.
    (e) The Board recognizes that both the junior bank's claim on the 
account party and the senior bank's claim on the junior bank involve 
risk. Therefore, it is essential that these risks be assessed by the 
banks involved in accordance with prudent and sound banking practices. 
The examiners will in the normal course of the examination process 
review the risk assessment procedures instituted by the banks. The 
junior bank should review the creditworthiness of each account party 
when the junior bank acquires a participation and the senior bank should 
review on an ongoing basis the creditworthiness of the junior bank. 
Junior bank agreement to rely exclusively upon the credit judgment of 
the senior bank and purchase on an ongoing basis from the senior bank 
all participations in BAs regardless of the identity of the account 
party is not appropriate in view of the risks involved. However, in 
those cases involving a participation between a parent bank and its Edge 
affiliate where the credit review for both entities is performed by the 
parent bank, the Edge Corporation should maintain documentation 
indicating that it concurs with the parent bank's analysis and that the 
acceptance participation is appropriate for inclusion in the Edge 
Corporation's portfolio.
    (f) Similarly, the Board has determined that it is appropriate to 
include

[[Page 606]]

the risks incurred by the senior bank in assessing the senior bank's 
capital and the risks incurred by the junior bank in assessing the 
junior bank's capital.
    (g) In view of this clarification of the issues relating to 
participations in BAs, the Board encourages the private sector to 
develop standardized forms for BAs and participations therein that 
clearly delineate the rights and responsibilities of the relevant 
parties.

(Sec. 13, Federal Reserve Act (12 U.S.C. 372))

[48 FR 57109, Dec. 28, 1983]



Sec. 250.166  Treatment of mandatory convertible debt and subordinated notes of state member banks and bank holding companies as ``capital''.

    (a) General. Under the Board's risk-based capital guidelines, state 
member banks and bank holding companies may include in Tier 2 capital 
subordinated debt and mandatory convertible debt that meets certain 
criteria. The purpose of this interpretation is to clarify these 
criteria. This interpretation should be read with those guidelines, 
particularly with paragraphs II.c. through II.e. of appendix A of 12 CFR 
part 208 if the issuer is a state member bank and with paragraphs 
II.A.2.c. and II.A.2.d. of appendix A of 12 CFR part 225 if the issuer 
is a bank holding company.
    (b) Criteria for subordinated debt included in capital--(1) 
Characteristics. To be included in Tier 2 capital under the Board's 
risk-based capital guidelines for state member banks and bank holding 
companies, subordinated debt must be subordinated in right of payment to 
the claims of the issuer's general creditors\1\ and, for banks, to the 
claims of depositors as well; must be unsecured; must state clearly on 
its face that it is not a deposit and is not insured by a federal 
agency; must have a minimum average maturity of five years; \2\ must not 
contain provisions that permit debtholders to accelerate payment of 
principal prior to maturity except in the event of bankruptcy of or the 
appointment of a receiver for the issuing organization; must not contain 
or be covered by any covenants, terms, or restrictions that are 
inconsistent with safe and sound banking practice; and must not be 
credit sensitive.
---------------------------------------------------------------------------

    \1\ The risk-based capital guidelines for bank holding companies 
state that bank holding company debt must be subordinated to all senior 
indebtedness of the company. To meet this requirement, the debt should 
be subordinated to all general creditors.
    \2\ The ``average maturity'' of an obligation or issue repayable in 
scheduled periodic payments shall be the weighted average of the 
maturities of all such scheduled payments.
---------------------------------------------------------------------------

    (2) Acceleration clauses--(i) In order to be included in Tier 2 
capital, the appendices provide that subordinated debt instruments must 
have an original weighted average maturity of at least five years. For 
this purpose, maturity is defined as the earliest possible date on which 
the holder can put the instrument back to the issuing banking 
organization. Since acceleration clauses permit the holder to put the 
debt back upon the occurrence of certain events, which could happen at 
any time after the instrument is issued, subordinated debt that includes 
provisions permitting acceleration upon events other than bankruptcy or 
reorganization under Chapters 7 (Liquidation) and 11 (Reorganization) of 
the Bankruptcy Code, in the case of a bank holding company, or 
insolvency--i.e., the appointment of a receiver--in the case of a state 
member bank, does not qualify for inclusion in Tier 2 capital.
    (ii) Further, subordinated debt whose terms provide for acceleration 
upon the occurrence of events other than bankruptcy or the appointment 
of a receiver does not qualify as Tier 2 capital. For example, the terms 
of some subordinated debt issues would permit debtholders to accelerate 
repayment if the issuer failed to pay principal or interest on the 
subordinated debt issue when due (or within a certain timeframe after 
the due date), failed to make mandatory sinking fund deposits, defaulted 
on any other debt, failed to honor covenants, or if an institution 
affiliated with the issuer entered into bankruptcy or receivership. Some 
banking organizations have also issued, or proposed to issue, 
subordinated debt that would allow debtholders to accelerate repayment 
if, for example, the

[[Page 607]]

banking organization failed to maintain certain prescribed minimum 
capital ratios or rates of return, or if the amount of nonperforming 
assets or charge-offs of the banking organization exceeded a certain 
level.
    (iii) These and other similar acceleration clauses raise significant 
supervisory concerns because repayment of the debt could be accelerated 
at a time when an organization may be experiencing financial 
difficulties. Acceleration of the debt could restrict the ability of the 
organization to resolve its problems in the normal course of business 
and could cause the organization involuntarily to enter into bankruptcy 
or receivership. Furthermore, since such acceleration clauses could 
allow the holders of subordinated debt to be paid ahead of general 
creditors or depositors, their inclusion in a debt issue throws into 
question whether the debt is, in fact, subordinated.
    (iv) Subordinated debt issues whose terms state that the debtholders 
may accelerate the repayment of principal only in the event of 
bankruptcy or receivership of the issuer do not permit the holders of 
the debt to be paid before general creditors or depositors and do not 
raise supervisory concerns because the acceleration does not occur until 
the institution has failed. Accordingly, debt issues that permit 
acceleration of principal only in the event of bankruptcy (liquidation 
or reorganization) in the case of bank holding companies and 
receivership in the case of banks may generally be classified as 
capital.
    (3) Provisions inconsistent with safe and sound banking practices--
(i) The risk-based capital guidelines state that instruments included in 
capital may not contain or be covered by any covenants, terms, or 
restrictions that are inconsistent with safe and sound banking practice. 
As a general matter, capital instruments should not contain terms that 
could adversely affect liquidity or unduly restrict management's 
flexibility to run the organization, particularly in times of financial 
difficulty, or that could limit the regulator's ability to resolve 
problem bank situations. For example, some subordinated debt includes 
covenants that would not allow the banking organization to make 
additional secured or senior borrowings. Other covenants would prohibit 
a banking organization from disposing of a major subsidiary or 
undergoing a change in control. Such covenants could restrict the 
banking organization's ability to raise funds to meet its liquidity 
needs. In addition, such terms or conditions limit the ability of bank 
supervisors to resolve problem bank situations through a change in 
control.
    (ii) Certain other provisions found in subordinated debt may provide 
protection to investors in subordinated debt without adversely affecting 
the overall benefits of the instrument to the organization. For example, 
some instruments include covenants that may require the banking 
organization to:
    (A) Maintain an office or agency where securities may be presented,
    (B) Hold payments on the securities in trust,
    (C) Preserve the rights and franchises of the company,
    (D) Pay taxes and assessments before they become delinquent,
    (E) Provide an annual statement of compliance on whether the company 
has observed all conditions of the debt agreement, or
    (F) Maintain its properties in good condition. Such covenants, as 
long as they do not unduly restrict the activity of the banking 
organization, generally would be acceptable in qualifying subordinated 
debt, provided that failure to meet them does not give the holders of 
the debt the right to accelerate the debt.\3\
---------------------------------------------------------------------------

    \3\ This notice does not attempt to list or address all clauses 
included in subordinated debt; rather, it is intended to give general 
supervisory guidance regarding the types of clauses that could raise 
supervisory concerns. Issuers of subordinated debt may need to consult 
further with Federal Reserve staff about other subordinated debt 
provisions not specifically discussed above to determine whether such 
provisions are appropriate in a debt capital instrument.
---------------------------------------------------------------------------

    (4) Credit sensitive features. Credit sensitive subordinated debt 
(including mandatory convertible securities) where payments are tied to 
the financial condition of the borrower generally do not qualify for 
inclusion in capital. Interest rate payments may be

[[Page 608]]

linked to the financial condition of an institution through various 
ways, such as through an auction rate mechanism, a preset schedule that 
either mandates interest rate increases as the credit rating of the 
institution declines or automatically increases them over the passage of 
time,\4\ or that raises the interest rate if payment is not made in a 
timely fashion.\5\ As the financial condition of an organization 
declines, it is faced with higher and higher payments on its credit 
sensitive subordinated debt at a time when it most needs to conserve its 
resources. Thus, credit sensitive debt does not provide the support 
expected of a capital instrument to an institution whose financial 
condition is deteriorating; rather, the credit sensitive feature can 
accelerate depletion of the institution's resources and increase the 
likelihood of default on the debt.
---------------------------------------------------------------------------

    \4\ Although payments on debt whose interest rate increases over 
time on the surface may not appear to be directly linked to the 
financial condition of the issuing organization, such debt (sometimes 
referred to as expanding or exploding rate debt) has a strong potential 
to be credit sensitive in substance. Organizations whose financial 
condition has strengthened are more likely to be able to refinance the 
debt at a rate lower than that mandated by the preset increase, whereas 
institutions whose condition has deteriorated are less likely to be able 
to do so. Moreover, just when these latter institutions would be in the 
most need of conserving capital, they would be under strong pressure to 
redeem the debt as an alternative to paying higher rates and, thus, 
would accelerate depletion of their resources.
    \5\ While such terms may be acceptable in perpetual preferred stock 
qualifying as Tier 2 capital, it would be inconsistent with safe and 
sound banking practice to include debt with such terms in Tier 2 
capital. The organization does not have the option, as it does with 
auction rate preferred stock issues, of eliminating the higher payments 
on the subordinated debt without going into default.
---------------------------------------------------------------------------

    (c) Criteria for mandatory convertible debt included in capital. 
Mandatory convertible debt included in capital must meet all the 
criteria cited above for subordinated debt with the exception of the 
minimum maturity requirement.\6\ Since mandatory convertible debt 
eventually converts to an equity instrument, it has no minimum maturity 
requirement. Such debt, however, is subject to a maximum maturity 
requirement of 12 years.
---------------------------------------------------------------------------

    \6\ Mandatory convertible debt is subordinated debt that contains 
provisions committing the issuing organization to repay the principal 
from the proceeds of future equity issues.
---------------------------------------------------------------------------

    (d) Previously issued subordinated debt. Subordinated debt including 
mandatory convertible debt that has been issued prior to the date of 
this interpretation and that contains provisions permitting acceleration 
for reasons other than bankruptcy or receivership of the issuing 
institution; includes other questionable terms or conditions; or that is 
credit sensitive will not automatically be excluded from capital. 
Rather, such debt will be considered on a case-by-case basis to 
determine whether it qualifies as Tier 2 capital. As a general matter, 
subordinated debt issued prior to the release of this interpretation and 
containing such provisions or features may qualify as Tier 2 capital so 
long as these terms:
    (1) have been commonly used by banking organizations,
    (2) do not provide an unreasonably high degree of protection to the 
holder in cases not involving bankruptcy or receivership, and
    (3) do not effectively allow the holder to stand ahead of the 
general creditors of the issuing institution in cases of bankruptcy or 
receivership.
Subordinated debt containing provisions that permit the holders of the 
debt to accelerate payment of principal when the banking organization 
begins to experience difficulties, for example, when it fails to meet 
certain financial ratios, such as capital ratios or rates of return, 
does not meet these three criteria. Consequently, subordinated debt 
issued prior to the release of this interpretation containing such 
provisions may not be included within Tier 2 capital.
    (e) Limitations on the amount of subordinated debt in capital--(1) 
Basic limitation. The amount of subordinated debt an institution may 
include in Tier 2 capital is limited to 50 percent of the amount of the 
institution's Tier 1 capital. The amount of a subordinated debt issue 
that may be included in Tier 2 capital is discounted as it approaches

[[Page 609]]

maturity; one-fifth of the original amount of the instrument, less any 
redemptions, is excluded each year from Tier 2 capital during the last 
five years prior to maturity. If the instrument has a serial redemption 
feature such that, for example, half matures in seven years and half 
matures in ten years, the issuing organization should begin discounting 
the seven-year portion after two years and the ten-year portion after 
five years.
    (2) Treatment of debt with dedicated proceeds. If a banking 
organization has issued common or preferred stock and dedicated the 
proceeds to the redemption of a mandatory convertible debt security, 
that portion of the security covered by the amount of the proceeds so 
dedicated is considered to be ordinary subordinated debt for capital 
purposes, provided the proceeds are not placed in a sinking fund, trust 
fund, or similar segregated account or are not used in the interim for 
some other purpose. Thus, dedicated portions of mandatory convertible 
debt securities are subject, like other subordinated debt, to the 50 
percent sublimit within Tier 2 capital, as well as to discounting in the 
last five years of life. Undedicated portions of mandatory convertible 
debt may be included in Tier 2 capital without any sublimit and are not 
subject to discounting.
    (3) Treatment of debt with segregated funds. In some cases, the 
provisions in mandatory convertible debt issues may require the issuing 
banking organization to set up a sinking fund, trust fund, or similar 
segregated account to hold the proceeds from the sale of equity 
securities dedicated to pay off the principal of the mandatory 
convertible debt at maturity. The portion of mandatory convertibles 
covered by the amount of proceeds deposited in such a segregated fund is 
considered secured and, thus, may not be included in capital at all, let 
alone be treated as subordinated debt that is subject to the 50 percent 
sublimit within Tier 2 capital. The maintenance of such separate 
segregated funds for the redemption of mandatory convertible debt 
exceeds the requirements of appendix B to Regulation Y. Accordingly, if 
a banking organization, with the agreement of its debtholders, seeks 
Federal Reserve approval to eliminate such a fund, approval normally 
would be given unless supervisory concerns warrant otherwise.
    (f) Redemption of subordinated debt prior to maturity--(1) By state 
member banks. State member banks must obtain approval from the 
appropriate Reserve Bank prior to redeeming before maturity subordinated 
debt or mandatory convertible debt included in capital.\7\ A Reserve 
Bank will not approve such early redemption unless it is satisfied that 
the capital position of the bank will be adequate after the proposed 
redemption.
---------------------------------------------------------------------------

    \7\ Some agreements governing mandatory convertible debt issued 
prior to the risk-based capital guidelines provide that the bank may 
redeem the notes if they no longer count as primary capital as defined 
in appendix B to Regulation Y. Such a provision does not obviate the 
requirement to receive Federal Reserve approval prior to redemption.
---------------------------------------------------------------------------

    (2) By bank holding companies. While bank holding companies are not 
formally required to obtain approval prior to redeeming subordinated 
debt, the risk-based capital guidelines state that bank holding 
companies should consult with the Federal Reserve before redeeming any 
capital instruments prior to stated maturity. This also applies to any 
redemption of mandatory convertible debt with proceeds of an equity 
issuance that were dedicated to the redemption of that debt. 
Accordingly, a bank holding company should consult with its Reserve Bank 
prior to redeeming subordinated debt or dedicated portions of mandatory 
convertible debt included in capital. A Reserve Bank generally will not 
acquiesce to such a redemption unless it is satisfied that the capital 
position of the bank holding company would be adequate after the 
proposed redemption.
    (3) Special concerns involving mandatory convertible debt. 
Consistent with appendix B to Regulation Y, bank holding companies 
wishing to redeem before maturity undedicated portions of mandatory 
convertible debt included in capital are required to receive prior 
Federal Reserve approval, unless the redemption is effected with the 
proceeds from the sale or common or perpetual preferred stock. An 
organization planning to effect such a redemption

[[Page 610]]

with the proceeds from the sale of common or perpetual preferred stock 
is advised to consult informally with its Reserve Bank in order to avoid 
the possibility of taking an action that could result in weakening its 
capital position. A Reserve Bank will not approve the redemption of 
mandatory convertible securities, or acquiesce in such a redemption 
effected with the sale of common or perpetual preferred stock, unless it 
is satisfied that the capital position of the bank holding company will 
be satisfactory after the redemption.\8\
---------------------------------------------------------------------------

    \8\ The guidance contained in this paragraph applies to mandatory 
convertible debt issued prior to the risk-based capital guidelines that 
state that the banking organization may redeem the notes if they no 
longer count as primary capital as defined in Appendix B to Regulation 
Y. Such provisions do not obviate the need to consult with, or obtain 
approval from, the Federal Reserve prior to redemption of the debt.

[57 FR 40598, Sept. 4, 1992]



Sec. 250.180   Reports of changes in control of management.

    (a) Under a statute enacted September 12, 1964 (Pub. L. 88-593; 78 
Stat. 940) all insured banks are required to report promptly (1) changes 
in the outstanding voting stock of the bank which will result in control 
or in a change in control of the bank and (2) any instances where the 
bank makes a loan or loans, secured, or to be secured, by 25 percent or 
more of the outstanding voting stock of an insured bank.
    (b) Reports concerning changes in control of a State member bank are 
to be made by the president or other chief executive officer of the 
bank, and shall be submitted to the Federal Reserve Bank of its 
district.
    (c) Reports concerning loans by an insured bank on the stock of a 
State member bank are to be made by the president or other chief 
executive officer of the lending bank, and shall be submitted to the 
Federal Reserve Bank of the State member bank on the stock of which the 
loan was made.
    (d) Paragraphs 3 and 4 of this legislation specify the information 
required in the reports which, in cases involving State member banks, 
should be addressed to the Vice President in Charge of Examinations of 
the appropriate Federal Reserve Bank.

(12 U.S.C. 1817)



Sec. 250.181   Reports of change in control of bank management incident to a merger.

    (a) A State member bank has inquired whether Pub. L. 88-593 (78 
Stat. 940) requires reports of change in control of bank management in 
situations where the change occurs as an incident in a merger.
    (b) Under the Bank Merger Act of 1960 (12 U.S.C. 1828(c)), no bank 
with Federal deposit insurance may merge or consolidate with, or acquire 
the assets of, or assume the liability to pay deposits in, any other 
insured bank without prior approval of the appropriate Federal bank 
supervisory agency. Where the bank resulting from any such transaction 
is a State member bank, the Board of Governors is the agency that must 
pass on the transaction. In the course of consideration of such an 
application, the Board would, of necessity, acquire knowledge of any 
change in control of management that might result. Information 
concerning any such change in control of management is supplied with 
each merger application and, in the circumstances, it is the view of the 
Board that the receipt of such information in connection with a merger 
application constitutes compliance with Pub. L. 88-593. However, once a 
merger has been approved and completely effectuated, the resulting bank 
would thereafter be subject to the reporting requirements of Pub. L. 88-
593.

(12 U.S.C. 1817)



Sec. 250.182  Terms defining competitive effects of proposed mergers.

    Under the Bank Merger Act (12 U.S.C. 1828(c)), a Federal Banking 
agency receiving a merger application must request the views of the 
other two banking agencies and the Department of Justice on the 
competitive factors involved. Standard descriptive terms are used by the 
Board, the Federal Deposit Insurance Corporation, and the Comptroller of 
the Currency. The terms and their definitions are as follows:

[[Page 611]]

    (a) The term monopoly means that the proposed transaction must be 
disapproved in accordance with 12 U.S.C. 1828(c)(5)(A).
    (b) The term substantially adverse means that the proposed 
transaction would have anticompetitive effects which preclude approval 
unless the anticompetitive effects are 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 as specified in 12 
U.S.C. 1828(c)(5)(B).
    (c) The term adverse means that proposed transaction would have 
anticompetitive effects which would be material to the decision but 
which would not preclude approval.
    (d) The term no significant effect means that the anticompetitive 
effects of the proposed transaction, if any, would not be material to 
the decision.

(12 U.S.C. 1828(c))

[45 FR 45257, July 3, 1980]



Sec. 250.200   Investment in bank premises by holding company banks.

    (a) The Board of Governors has been asked whether, in determining 
under section 24A of the Federal Reserve Act (12 U.S.C. 371d) how much 
may be invested in bank premises without prior Board approval, a State 
member bank, which is owned by a registered bank holding company, is 
required to include indebtedness of a corporation, wholly owned by the 
holding company, that is engaged in holding premises of banks in the 
holding company system.
    (b) Section 24A provides, in part, as follows:

    Hereafter * * * no State member bank, without the approval of the 
Board of Governors of the Federal Reserve System, shall (1) invest in 
bank premises, or in the stock, bonds, debentures, or other such 
obligations of any corporation holding the premises of such bank or (2) 
make loans to or upon the security of the stock of any such corporation, 
if the aggregate of all such investments and loans, together with the 
amount of any indebtedness incurred by any such corporation which is an 
affiliate of the bank, as defined in section 2 of the Banking Act of 
1933, as amended [12 U.S.C. 221a], will exceed the amount of the capital 
stock of such banks.

    (c) A corporation that is owned by a holding company is an 
``affiliate of each of the holding company's majority-owned banks as 
that term is defined in said section 2. Therefore, under the explicit 
provisions of section 24A, each State member bank, any part of whose 
premises is owned by such an affiliate, must include the affiliate's 
total indebtedness in determining whether a proposed premises investment 
by the bank would cause the aggregate figure to exceed the amount of the 
bank's capital stock, so that the Board's prior approval would be 
required. Where the affiliate holds the premises of a number of the 
holding company's banks, the amount of the affiliate's indebtedness may 
be so large that Board approval is required for every proposed 
investment in bank premises by each majority-owned State member bank, to 
which the entire indebtedness of the affiliate is required to be 
attributed. The Board believes that, in these circumstances, individual 
approvals are not essential to effectuate the purpose of section 24A, 
which is to safeguard the soundness and liquidity of member banks, and 
that the protection sought by Congress can be achieved by a suitably 
circumscribed general approval.
    (d) Accordingly the Board hereby grants general approval for any 
investment or loan (as described in section 24A) by any State member 
bank, the majority of the stock of which is owned by a registered bank 
holding company, if the proposed investment or loan will not cause 
either (1) all such investments and loans by the member bank (together 
with the indebtedness of any bank premises subsidiary thereof) to exceed 
100 percent of the bank's capital stock, or (2) the aggregate of such 
investments and loans by all of the holding company's subsidiary banks 
(together with the indebtedness of any bank premises affiliates thereof) 
to exceed 100 percent of the aggregate capital stock of said banks.

(12 U.S.C. 221a, 371d)



Sec. 250.220   Whether member bank acting as trustee is prohibited by section 20 of the Banking Act of 1933 from acquiring majority of shares of mutual fund.

    (a) The Board recently considered whether section 20 of the Banking 
Act

[[Page 612]]

of 1933 (12 U.S.C. 377) would prohibit a member bank, while acting as 
trustee of a tax exempt employee benefit trust or trusts, from, under 
the following circumstances, acquiring a majority of the shares of an 
open-end investment company (``Fund'') registered under the Investment 
Company Act of 1940, or more than 50 percent of the number of Fund's 
shares voted at the preceding election of directors of the Fund.
    (b) The bank has acted as trustee, since December 1963, pursuant to 
a trust agreement with a county medical society to administer its group 
retirement program, under which individual members of the society could 
participate in accordance with the provisions of the Self-Employed 
Individuals Tax Retirement Act of 1962 (commonly referred to as ``H.R. 
10'').
    (c) Under the trust agreement as presently constituted, each 
employer, who is a participating member of the medical society, directs 
the bank to invest his contributions to the retirement plan in such 
proportions as he may elect in insurance or annuity contracts or in a 
diversified portfolio of securities and other property. The diversified 
portfolio held by the bank is invested and administered by the bank 
solely at the direction of a committee of the medical society.
    (d) It has now been proposed that the trust agreement be amended to 
provide that all investments constituting the trust fund, apart from 
insurance and annuity contracts, will be made exclusively in shares of a 
single open-end investment company to be named in the trust agreement 
and that the assets constituting the diversified portfolio now held by 
the bank, as trustee, will be exchanged for the Fund's shares. The bank 
will, in addition to holding the shares of the Fund, allocate income and 
dividends to the accounts of the various participants in the retirement 
program, invest and reinvest income and dividends, and perform other 
ministerial functions.
    (e) In addition, it is proposed to amend the trust agreement so that 
voting of the shares held by the bank as trustee will be controlled 
exclusively by the participants. Under the proposed amendment, the bank 
will sign all proxies prior to mailing them to the participants,

    it being intended that the Participant(s) shall vote the proxies 
notwithstanding the fact that the Trustee is the owner of the shares * * 
*.

    (f) The bank believes that amendments are now under consideration 
that will also require investment of the assets of these plans 
exclusively in the Fund's shares. Accordingly, the bank may eventually 
own the Fund's shares in several separate trust accounts and in an 
aggregate amount equal to a majority of the Fund's shares.
    (g) Section 20 of the Banking Act of 1933 provides in relevant part 
that

    no member bank shall be affiliated in any manner described in 
section 2(b) hereof with any corporation * * * engaged principally in 
the issue, flotation, underwriting, public sale, or distribution at 
wholesale or retail or through syndicate participation of stocks * * * 
or other securities: * * *.

    (h) Section 2(b) defines the term affiliate to include

    any corporation, business trust, association or other similar 
organization (1) Of which a member bank, directly or indirectly, owns or 
controls either a majority of the voting shares or more than 50 per 
centum of the number of shares voted for the election of its directors, 
trustees, or other persons exercising similar functions at the preceding 
election, or controls in any manner the election of a majority of its 
directors, trustees, or other persons exercising similar functions; * * 
*.

    (i) The Board has previously taken the position, in an 
interpretation involving the term affiliate under the Banking Act of 
1933, that it would not require a member bank to obtain and publish a 
report of a corporation the majority of the stock of which is held by 
the member bank as executor or trustee, provided that the member bank 
holds such stock subject to control by a court or by a beneficiary or 
other principal and that the member bank may not lawfully exercise 
control of such stock independently of any order or direction of a 
court, beneficiary or other principal. 1933 Federal Reserve Bulletin 
651. The rationale of that interpretation--which was reaffirmed by the 
Board in 1957--would appear to be equally applicable to the

[[Page 613]]

facts in the present case. In the circumstances, and on the basis of the 
Board's understanding that the bank will not vote any of Fund's shares 
or control in any manner the election of any of its directors, trustees, 
or other persons exercising similar functions, the Board has concluded 
that the situation in question would not fall within the purpose or 
coverage of section 20 of the Banking Act of 1933 and, therefore, would 
not involve a violation of the statute.



Sec. 250.221   Issuance and sale of short-term debt obligations by bank holding companies.

    (a) The opinion of the Board of Governors of the Federal Reserve 
System has been requested recently with respect to the proposed sale of 
``thrift notes'' by a bank holding company for the purpose of supplying 
capital to its wholly-owned nonbanking subsidiaries.
    (b) The thrift notes would bear the name of the holding company, 
which in the case presented, was substantially similar to the name of 
its affiliated banks. It was proposed that they be issued in 
denominations of $50 to $100 and initially be of 12-month or less 
maturities. There would be no maximum amount of the issue. Interest 
rates would be variable according to money market conditions but would 
presumably be at rates somewhat above those permitted by Regulation Q 
ceilings. There would be no guarantee or indemnity of the notes by any 
of the banks in the holding company system and, if required to do so, 
the holding company would place on the face of the notes a negative 
representation that the purchase price was not a deposit, nor an 
indirect obligation of banks in the holding company system, nor covered 
by deposit insurance.
    (c) The notes would be generally available for sale to members of 
the public, but only at offices of the holding company and its 
nonbanking subsidiaries. Although offices of the holding company may be 
in the same building or quarters as its banking offices, they would be 
physically separated from the banking offices. Sales would be made only 
by officers or employees of the holding company and its nonbanking 
subsidiaries. Initially, the notes would only be offered in the State in 
which the holding company was principally doing business, thereby 
complying with the exemption provided by section 3(a)(11) of the 
Securities Act of 1933 (15 U.S.C. 77c) for ``intra-state'' offerings. If 
it was decided to offer the notes on an interstate basis, steps would be 
taken to register the notes under the Securities Act of 1933. Funds from 
the sale of the notes would be used only to supply the financial needs 
of the nonbanking subsidiaries of the holding company. These nonbank 
subsidiaries are, at present, a small loan company, a mortgage banking 
company and a factoring company. In no instance would the proceeds from 
the sale of the notes be used in the bank subsidiaries of the holding 
company nor to maintain the availability of funds in its bank 
subsidiaries.
    (d) The sale of the thrift notes, in the specific manner proposed, 
is an activity described in section 20 of the Banking Act of 1933 (12 
U.S.C. 377), that is, ``the issue, flotation, underwriting, public sale 
or distribution * * * of * * * notes, or other securities''. Briefly 
stated, this statute prohibits a member bank to be affiliated with a 
company ``engaged principally'' in such activity. Since the continued 
issuance and sale of such securities would be necessary to permit 
maintenance of the holding company's activities without substantial 
contraction and would be an integral part of its operations, the Board 
concluded that the issuance and sale of such notes would constitute a 
principal activity of a holding company within the spirit and purpose of 
the statute. (For prior Board decisions in this connection, see 1934 
Federal Reserve Bulletin 485, 12 CFR 218.104, 12 CFR 218.105 and 12 CFR 
218.101.)
    (e) In reaching this conclusion, the Board distinguished the 
proposed activity from the sale of short-term notes commonly known as 
commercial paper, which is a recognized form of financing for bank 
holding companies. For purposes of this interpretation, commercial paper 
may be defined as notes, with maturities not exceeding nine months, the 
proceeds of which are to be used for current transactions, which are 
usually sold to sophisticated institutional investors, rather than to 
members of the

[[Page 614]]

general public, in minimum denominations of $10,000 (although sometimes 
they may be sold in minimum denominations of $5,000). Commercial paper 
is exempt from registration under the Securities Act of 1933 by reason 
of the exemption provided by section 3(a)(3) thereof (15 U.S.C. 77c). 
That exemption is inapplicable where the securities are sold to the 
general public (17 CFR 231.4412). The reasons for such exemption, taken 
together with the abuses that gave rise to the passage of the Banking 
Act of 1933 (``the Glass-Steagall Act''), have led the Board to conclude 
that the issuance of commercial paper by a bank holding company is not 
an activity intended to be included within the scope of section 20.

(Interprets and applies 12 U.S.C. 377 and 1843)

[Reg. Y, 38 FR 35231, Dec. 26, 1973]



Sec. 250.240   Applicability of section 23A of the Federal Reserve Act to transactions between a member State bank and its ``operations subsidiary''.

    (a) The Board of Governors has recently considered whether section 
23A of the Federal Reserve Act (12 U.S.C. 371c) applies to extensions of 
credit by a member State bank to its operations subsidiary.
    (b) Section 23A imposes limitations (in terms of security and 
amount) on a federally insured bank's loans to and investments in its 
affiliates. The principal purpose of section 23A is to safeguard the 
resources of a bank against misuse for the benefit of organizations 
under common control with the bank. It was designed to prevent a bank 
from risking too large an amount in affiliated enterprises and to assure 
that extensions of credit to affiliates will be repaid--out of 
marketable collateral, if necessary.
    (c) Since 1968 the Board has permitted member banks to establish and 
own operations subsidiaries--that is, organizations designed to serve, 
in effect, as separately incorporated departments of the bank, 
performing, at locations at which the bank is authorized to engage in 
business, functions that the bank is empowered to perform directly (12 
CFR 250.141). Since an operations subsidiary is in effect a part of, and 
subject to the same restrictions as, its parent bank, there appears to 
be no reason to limit transactions between the bank and such subsidiary 
any more than transactions between departments of a bank.
    (d) Accordingly, the Board has concluded that a credit transaction 
by a member State bank with its operations subsidiary (the authority for 
which is based on the 1968 ruling) is not a ``loan or * * * extension of 
credit'' of the kind intended to be restricted and regulated by section 
23A and is, therefore, outside the purview of that section.

[35 FR 10201, June 23, 1970]



Sec. 250.241  Exclusion from section 23A of the Federal Reserve Act for certain transactions subject to review under the Bank Merger Act.

    (a) Grant of Exemption. Section 23A of the Federal Reserve Act shall 
not apply to a transaction between affiliated insured depository 
institutions if the transaction has been approved by the appropriate 
federal banking agency pursuant to the Bank Merger Act.
    (b) Definitions. For purposes of this section, the terms 
``appropriate federal banking agency'' and ``insured depository 
institution'' are defined as those terms are defined in section 3 of the 
Federal Deposit Insurance Act.

[57 FR 41644, Sept. 11, 1992]



Sec. 250.242   Section 23A of the Federal Reserve Act--definition of capital stock and surplus.

    (a) An insured depository institution's capital stock and surplus 
for purposes of section 23A of the Federal Reserve Act (12 U.S.C. 371c) 
is:
    (1) Tier 1 and Tier 2 capital included in an institution's risk-
based capital under the capital guidelines of the appropriate Federal 
banking agency, based on the institution's most recent consolidated 
Report of Condition and Income filed under 12 U.S.C. 1817(a)(3); and
    (2) The balance of an institution's allowance for loan and lease 
losses not included in its Tier 2 capital for purposes of the 
calculation of risk-based capital by the appropriate Federal banking 
agency, based on the institution's most recent consolidated Report of 
Condition and Income filed under 12 U.S.C. 1817(a)(3).

[[Page 615]]

    (b) For purposes of this section, the terms appropriate Federal 
banking agency and insured depository institution are defined as those 
terms are defined in section 3 of the Federal Deposit Insurance Act, 12 
U.S.C. 1813.

[61 FR 19806, May 3, 1996]



Sec. 250.250   Applicability of section 23A of the Federal Reserve Act to a member State bank's purchase of, or participation in, a loan originated by a 
          mortgage banking affiliate.

    (a) A question has been raised as to whether a member bank's 
purchase, without recourse, and at face value, of any mortgage note, or 
participation therein, from a mortgage banking subsidiary of its parent 
bank holding company at the inception of the underlying mortgage loan 
involves a ``loan'' or ``extension of credit'' from the member bank to 
the affiliate within the meaning of section 23A of the Federal Reserve 
Act (12 U.S.C. 371c). In the given circumstances, the affiliate 
originated the mortgage loans at premises other than an office of the 
member bank and hence was not a company furnishing services to or 
performing services for the holding company or its banking subsidiaries 
within the meaning of section 4(c)(1)(C) of the Bank Holding Company Act 
(12 U.S.C. 1843(c)(1)(C)). Loans or extensions of credit to the 
affiliate were therefore not entitled to exemption from the provisions 
of section 23A by virtue of subsection (1) of the final paragraph 
thereof.
    (b) Paragraph 4 of section 23A provides that the term extension of 
credit shall be deemed to include the discount of promissory notes, 
bills of exchange, conditional sales contracts, or similar paper, 
whether with or without recourse, excepting the acquisition of such 
paper by a member bank from another bank without recourse. In previously 
interpreting the statutory provision from which this provision is 
derived (section 6 of the Bank Holding Company Act of 1956, repealed 
July 1, 1966), the Board concluded that discount in the context of the 
statute meant purchase and that the purchase of notes, bills of 
exchange, conditional sales contracts or similar paper from an affiliate 
was subject to the prohibitions of the statute. (1958 Federal Reserve 
Bulletin 260.) Further, the Board notes that the definition in section 
23A is illustrative rather than exclusive. The Board believes that the 
purposes of section 23A justify a broad construction of the definition 
of extension of credit to include certain purchases of obligations, even 
though the purchases are not made at a discount from face value. A 
bank's financing of the working capital needs of a mortgage banking 
affiliate may occur through outright purchases of obligations, and the 
types of abuses with which section 23A is concerned are likewise 
possible in such circumstances, since such transactions between 
affiliates could result in an undue risk to the financial condition of 
the purchasing bank.
    (c) The Board is of the opinion that the purchase by a member State 
bank of a mortgage note, or participation therein, from a mortgage 
banking affiliate would involve a loan or extension of credit to the 
affiliate if the latter had either made, or committed itself to make, 
the loan or extension of credit evidenced by the note prior to the time 
when the member bank first obligated itself, by commitment or otherwise, 
to purchase the loan or a participation therein. However, there would be 
no loan or extension of credit by the member bank to its mortgage 
banking affiliate if the member bank's commitment to purchase the loan, 
or a participation therein, is obtained by the affiliate within the 
context of a proposed transaction, or series of proposed transactions, 
in anticipation of the affiliate's commitment to make such loan(s), and 
is based upon the bank's independent evaluation of the credit worthiness 
of the mortgagor(s). In these latter circumstances, the member bank 
would be taking advantage of an investment opportunity rather than being 
impelled by any improper incentive to alleviate working capital needs of 
the affiliate that are directly attributable to excessive outstanding 
commitments.

    (d) The Board cautions, however, that it would regard a blanket 
advance commitment by a member State bank to purchase from its mortgage 
banking

[[Page 616]]

affiliate a stipulated amount of loans, or an amount thereof exceeding 
defined credit lines of the affiliate, that bears no reference to 
specific proposed transactions, as involving an unsound banking 
practice, unless the commitment is conditioned upon compliance of loans 
made thereunder with the requirements of section 23A. It would not 
suffice to condition such a commitment upon the bank's ultimate approval 
of the credit standing of the various mortgagors. That blanket 
commitment would have the inherent tendency, in the context of an 
affiliate relationship, to cause the bank to relax sound credit judgment 
concerning the individual loans involved when the affiliate was in need 
of bank financing, thereby resulting in an inappropriate risk to the 
soundness of the bank.

(Interprets and applies 12 U.S.C. 371c)

[39 FR 28975, Aug. 13, 1974]



Sec. 250.260   Miscellaneous interpretations; gold coin and bullion.

    The Board has received numerous inquiries from member banks relating 
to the repeal of the bank on ownership of gold by United States 
citizens. Listed below are questions and answers which affect member 
banks and relate to the responsibilities of the Federal Reserve System.
    (a) May gold in the form of coins or bullion be counted as vault 
cash in order to satisfy reserve requirements? No. Section 19(c) of the 
Federal Reserve Act requires that reserve balances be satisfied either 
by a balance maintained at the Federal Reserve Bank or by vault cash, 
consisting of United States currency and coin. Gold in bullion form is 
not United States currency. Since the bullion value of United States 
gold coins far exceeds their face value, member banks would not in 
practice distribute them over the counter at face value to satisfy 
customer demands.
    (b) Will the Federal Reserve Banks perform services for member banks 
with respect to gold, such as safekeeping or assaying? No.
    (c) Will a Federal Reserve Bank accept gold as collateral for an 
advance to a member bank under section 10(b) of the Federal Reserve Act? 
No.

[39 FR 45254, Dec. 31, 1974]

                        Bank Service Arrangements



Sec. 250.300  Kinds of bank servicers subject to Board examination under the Bank Service Corporation Act.

    Summary. The performance of bank services for State member banks is 
subject to the Board's regulation and examination, regardless of the 
nature of the bank servicer, including servicers that are national 
banks; State nonmember insured banks; non-profit, no-stock credit card 
servicing organizations; and servicing subsidiaries of bank holding 
companies.
    Text. (a) Since the enactment of the Bank Service Corporation Act 
(the ``Act'') (12 U.S.C. 1861-1865), the Board has on several occasions 
considered whether performance of ``bank services'' (as that term is 
defined in section 1(b) of the Act) for State member banks is subject to 
regulation and examination by the Board under section 5 of the Act if--
    (1) The bank servicer is not a ``bank service corporation'' (as that 
term is defined in the Act), or
    (2) The bank servicer is a bank itself. In each instance, based on 
the reasoning set forth below, the Board expressed the view that section 
5 of the Act applied to any organization that performed bank services 
for State member banks, including national banks; another State member 
bank; State nonmember insured banks; servicing subsidiaries of bank 
holding companies; and non-profit, no stock credit card servicing 
organizations.
    (b) The Senate Committee on Banking and Currency stated with regard 
to section 5 of the Act, as enacted in 1962, that the Federal 
supervisory agencies ``must be able to examine all of the banks' 
records, and they must be able to exercise proper supervision over all 
the banks' activities, whether performed by the banks' employees on 
their premises or by anyone else on or off the banks' premises. This 
examination and this supervision cannot be frustrated by a transfer of 
the banks' records to some other organization or by having some other 
organization

[[Page 617]]

carry out all or part of the banks' functions.'' (S. Rep. No. 2105, 87th 
Cong. 3 (1962)). Similarly, the Committee on Banking and Currency of the 
House of Representatives stated that ``it would obviously be unwise to 
permit banks to avoid the examination and supervision of vital banking 
functions by the simple expedient of farming out such functions.'' (H.R. 
Rep. No. 2062, 87th Cong. 3 (1962)).
    (c) Section 5 of the Act is not limited by its terms to bank service 
corporations as defined in the Act; nor, in the Board's opinion based on 
the legislative history of the Act, should such a limitation be implied. 
The Board concludes that the performance of bank services for State 
member banks by organizations that are not bank service corporations is 
also subject to Board regulation and examination.
    (d) If the bank servicer is a national bank or a State nonmember 
insured bank, its performance of bank services for State member banks is 
subject to Board regulation and examination, despite the fact that the 
servicer is subject primarily to regulation and examination by one of 
the other Federal banking agencies. By the same token, the performance 
of bank services by a State member bank for a national bank or State 
nonmember insured bank is subject to regulation and examination by the 
Comptroller of the Currency or the Federal Deposit Insurance 
Corporation, respectively. The purpose of section 5 of the Act is to 
make certain that the appropriate Federal banking agency will be able 
effectively to exercise its responsibilities with respect to a bank 
subject primarily to its supervision.
    (e) It is important to note that the scope of the Board's regulation 
and examination under section 5 of the Act does not extend to all 
affairs of the bank servicer, but only to the bank services performed 
for a State member bank and only to the same extent as if the services 
were being performed by the State member bank itself on its own 
premises.

[44 FR 12969, Mar. 9, 1979]



Sec. 250.301  Scope of investment authority and notification requirement under the Bank Service Corporation Act.

    Summary. (a) The authority of State member banks under the Bank 
Service Corporation Act to invest in bank service corporations is 
limited to investments in corporations that perform ``bank services'' 
solely.
    (b) A State member bank is required by the Act to notify the Board 
only of the performance of ``bank services'' for it.
    (c) ``Bank services'' will not usually be regarded as including 
legal, advisory, and administrative services, such as transportation or 
guard services.
    Text (a) Section 2(a) of the Bank Service Corporation Act (12 U.S.C. 
1861-65) provides that ``no limitation or prohibition otherwise imposed 
by any provision of Federal law exclusively relating to banks shall 
prevent any two or more banks from investing not more than 10 per centum 
of the paid-in and unimpaired capital and unimpaired surplus of each of 
them in a bank service corporation.'' This 10 percent investment ceiling 
applies to loans and other advances of funds, as well as the purchase of 
stock. The Act, however, does not authorize a State bank to invest in a 
bank service corporation if the bank is not permitted to do so under the 
applicable State law.
    (b) Bank service corporation is defined in section 1(c) of the Act 
to mean ``a corporation organized to perform bank services for two or 
more banks, each of which owns part of the capital stock of such 
corporation, and at least one of which is subject to examination by a 
Federal supervisory agency.'' Section 4 of the Act states that ``no bank 
service corporation may engage in any activity other than the 
performance of bank services for banks.'' Thus, the investment authority 
created by section 2(a) is limited to corporations that are engaged 
solely in the provision of ``bank services'' to banks, as that term is 
defined in the Act.
    (c) In addition to its grant of investment authority, the Act also 
requires State member banks to notify the Board within 30 days of the 
execution of a contract for ``bank services'' or the actual provision of 
such services,

[[Page 618]]

whichever occurs first. Moreover, the Act authorizes the Board to 
regulate and examine the performance of ``bank services.'' Thus, the 
scope of the Act's notification and examination requirements also is 
limited to ``bank services.''
    (d) The term bank services is defined in section 1(b) of the Act to 
mean ``services such as check and deposit sorting and posting, 
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 functions performed for a bank.''
    (e) Bearing importantly upon the meaning of bank services is the 
following quotation from the Report of the Senate Committee on Banking 
and Currency:

    The authority to examine and supervise banks is broad and must be 
vigorously exercised. At the same time sound discretion must be used. 
Banks have always employed others to do many things for them, and they 
will have to continue to do so, and the bill is not intended to prevent 
this or to make it more difficult. For example, banks have employed 
lawyers to prepare trust and estate accounts and to prosecute judicial 
proceedings for the settlement of such accounts. Banks have employed 
accountants to prepare earnings statements and balance sheets. Banks 
have employed public relations and advertising firms. And banks have 
employed individuals or firms to perform all kinds of administrative 
activities, including armored car and other transportation services, 
guard services and, in many cases, other mechanical services needed to 
run the bank's buildings. It is not expected that the bank supervisory 
agencies would find it necessary to examine or regulate any of these 
agents or representatives of a bank, except under the most unusual 
circumstances. The authority is intended to be limited to banking 
functions as such.

    (S. Rep. No. 2105, 87th Cong. 3 (1962)).
    (f) On the basis of the Act's definition of bank services, the 
limitation contained in section 4 of the Act, and the preceding 
quotation from the Act's legislative history, it is apparent that the 
term bank services is essentially limited to clerical and similar 
services. For example, the term would not usually be regarded as 
including legal, advisory, and administrative services, such as 
transportation or guard services.
    (g) Thus, State member banks generally may rely on the Act to 
justify investment only in a corporation that is engaged solely in 
performing one or more of the services contained in the definition of 
bank services in section 1(b), or a service similar to one of those 
services, and only if those services are provided solely to banks. 
Investment in a corporation providing any other services, such as the 
type of services described in the above quotation from the Act's 
legislative history, generally is not permitted on the basis of this 
Act, unless such services are legitimately incidental to the provision 
of bank services by that corporation.
    (h) Since the notification required by section 5 of the Act, as 
amended, also is based on the provision of bank services, such 
notification need only be provided with regard to the provision of one 
or more of the services enumerated in section 1(b) of the Act or a 
service similar to one of those services.

[44 FR 12969, Mar. 9, 1979]



Sec. 250.302  Applicability of Bank Service Corporation Act to bank credit card service organization.

    Summary. Although a non-profit, no-stock service organization in 
which no bank has made an investment is not a bank service corporation 
as defined in the Bank Service Corporation Act, that organization's 
credit card servicing activities are bank services as defined in the Act 
and thus subject to the notification requirement of section 5 of the 
Act.
    Text. (a) The Board of Governors has considered whether the Bank 
Service Corporation Act (12 U.S.C. 1861-1865), is applicable where a 
bank credit card plan of a State member bank and other banks used the 
facilities of a non-profit, no-stock service organization.
    (b) The functions of the service organization include the following: 
(1) Performing cardholder accounting for participating banks; (2) 
developing information concerning each credit card and holder, including 
such holder's current balance owing to the card issuing bank and the 
amount of such balance that is delinquent; (3) assisting in procedures

[[Page 619]]

relating to the presentation and settlement of drafts and credit 
memoranda; (4) developing procedures relating to credit card security 
control; (5) upon telephonic request, advising merchants and 
participating banks respecting credit authorizations above certain 
specified limits; and (6) compiling lists of participating merchants.
    (c) The Board expressed the view that because the service 
organization has no stock and the State member bank does not otherwise 
invest therein by ``the making of a loan, or otherwise, except a payment 
for rent earned, goods sold and delivered, or services rendered prior to 
the making of such payment'' (section 1(d) of the Act), the service 
organization is not a ``bank service corporation'' within the meaning of 
section 1(c) of the Act.
    (d) However, the Board concluded that the functions described above 
do constitute bank services as defined in section 1(b) of the Act. 
Accordingly, the State member bank is required to notify the Board 
(through the appropriate Federal Reserve Bank) of the performance of the 
services for the bank in accordance with section 5 of the Act.

[44 FR 12970, Mar. 9, 1979]

         Interpretations of Section 32 of the Glass-Steagall Act



Sec. 250.400   Service of open-end investment company.

    An open-end investment company is defined in section 5(a)(1) of the 
Investment Company Act of 1940 as a company ``which is offering for sale 
or has outstanding any redeemable security of which it is the issuer.'' 
Section 2(a)(31) of said act provides that a redeemable security means 
``any security, other than short-term paper, under the terms of which 
the holder, upon its presentation to the issuer or to a person 
designated by the issuer, is entitled (whether absolutely or only out of 
surplus) to receive approximately his proportionate share of the 
issuer's current net assets, or the cash equivalent thereof.''

It is customary for such companies to have but one class of securities, 
namely, capital stock, and it is apparent that the more or less 
continued process of redemption of the stock issued by such a company 
would restrict and contract its activities if it did not continue to 
issue its stock. Thus, the issuance and sale of its stock is essential 
to the maintenance of the company's size and to the continuance of 
operations without substantial contraction, and therefore the issue and 
sale of its stock constitutes one of the primary activities of such a 
company.

Accordingly, it is the opinion of the Board that if such a company is 
issuing or offering its redeemable stock for sale, it is ``primarily 
engaged in the issue * * * public sale, or distribution, * * * of 
securities'' and that section 32 of the Banking Act of 1933, as amended, 
prohibits an officer, director or employee of any such company from 
serving at the same time as an officer, director or employee of any 
member bank. It is the Board's view that this is true even though the 
shares are sold to the public through independent organizations with the 
result that the investment company does not derive any direct profit 
from the sales.

If, however, the company has ceased to issue or offer any of its stock 
for sale, the company would not be engaged in the issue or distribution 
of its stock, and, therefore, the prohibition contained in section 32 
would be inapplicable unless the company were primarily engaged in the 
underwriting, public sale or distribution of securities other than its 
own stock.

[16 FR 4963, May 26, 1951. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.401  Director serving member bank and closed-end investment company being organized.

    (a) The Board has previously expressed the opinion (Sec. 218.101) 
that section 32 of the Banking Act of 1933 (12 U.S.C. 78) is applicable 
to a director of a member bank serving as a director of an open-end 
investment company, because the more or less continued process of 
redemption of the stock issued by such company makes the issuance and 
sale of its stock essential to the maintenance of the company's size and 
to the continuance of operations, with the result that the issuance and 
sale of its stock constitutes one of the primary activities of such a 
company. The

[[Page 620]]

Board also stated that if the company had ceased to issue or offer any 
of its stock for sale, the company would not be engaged in the issuance 
or distribution of its stock and therefore the prohibitions of section 
32 would not be applicable. Subsequently, the Board expressed the 
opinion that section 32 would not be applicable in the case of a closed-
end investment company.
    (b) The Board has recently stated that it believed that a closed-end 
company which was in process of organization and was actively engaged in 
issuing and selling its shares was in the same position relative to 
section 32 as an open-end company, and that the section would be 
applicable while this activity continued.

[25 FR 3464, Apr. 21, 1960. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.402  Service as officer, director, or employee of licensee corporation under the Small Business Investment Act of 1958.

    (a) The Board of Governors has been requested to express an opinion 
whether Sec. 218.1 would prohibit an officer, director, or employee of a 
member bank from serving at the same time as an officer, director, or 
employee of a Licensee corporation under the Small Business Investment 
Act of 1958 (15 U.S.C. 661 et seq.). It is understood that a Licensee 
would be authorized to engage only in the activities set forth in the 
statute, namely, to provide capital and long-term loan funds to small 
business concerns.
    (b) In the opinion of the Board, a corporation engaged exclusively 
in the enumerated activities would not be ``primarily engaged in the 
issue, flotation, underwriting, public sale, or distribution, at 
wholesale or retail, or through syndicate participation, of stocks, 
bonds, or other similar securities.'' Accordingly, the prohibition of 
Sec. 218.1 would not apply to serving as an officer, director, or 
employee of either a small business investment company organized under 
the Small Business Investment Act of 1958, or an investment company 
chartered under the laws of a State solely for the purpose of operating 
under the Small Business Investment Act of 1958.

[25 FR 4427, May 19, 1960. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.403  Service of member bank and real estate investment company.

    (a) The Board recently considered two inquiries regarding the 
question whether proposed real estate investment companies would be 
subject to the provisions of sections 20 and 32 of the Banking Act of 
1933 (12 U.S.C. 377 and 78). These sections relate to affiliations 
between member banks and companies engaged principally in the issue, 
flotation, underwriting, public sale or distribution of stocks, bonds, 
or similar securities, and interlocking directorates between member 
banks and companies primarily so engaged. In both instances the 
companies, after their organization, would engage only in the business 
of financing real estate development or investing in real estate 
interests, and not in the type of business described in the statute. 
However, each of the companies, in the process of its organization, 
would issue its own stock. In one instance, it appeared that the stock 
would be issued over a period of from 30 to 60 days; in the other 
instance it was stated that the stock would be sold by a firm of 
underwriters and that distribution was expected to be completed in not 
more than a few days.
    (b) On the basis of the facts stated, the Board concluded that the 
companies involved would not be subject to sections 20 and 32 of the 
Banking Act of 1933, since they would not be principally or primarily 
engaged in the business of issuing or distributing securities but would 
only be issuing their own stock for a period ordinarily required for 
corporate organization. The Board stated, however, that if either of the 
companies should subsequently issue additional shares frequently and in 
substantial amounts relative to the size of the company's capital 
structure, it would be necessary for the Board to reconsider the matter.
    (c) Apart from the legal question, the Board noted that an 
arrangement of the kind proposed could involve some dangers to an 
affiliated bank because the relationship might tend to impair

[[Page 621]]

the independent judgment that should be exercised by the bank in 
appraising its credits and might cause the company to be so identified 
in the minds of the public with the bank that any financial reverses 
suffered by the company might affect the confidence of the public in the 
bank.
    (d) Because of the foregoing conclusion that the companies would not 
be subject to sections 20 and 32, it seems advisable to clarify 
Sec. 218.102, in which the Board took the position that a closed-end 
investment company which was in process of organization and was actively 
engaged in issuing and selling its shares was subject to section 32 as 
long as this activity continued. That interpretation should be regarded 
as applicable only where the circumstances are such as to indicate that 
the issuance of the company's stock is a primary or principal activity 
of the company. For example, such circumstances might exist where the 
initial stock of a company is actively issued over a period of time 
longer than that ordinarily required for corporate organization, or 
where, subsequent to organization, the company issues its own stock 
frequently and in substantial amounts relative to the total amount of 
shares outstanding.

[26 FR 868, Jan. 28, 1961. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.404   Serving as director of member bank and corporation selling own stock.

    (a) The Board recently considered the question whether section 32 of 
the Banking Act of 1933 (12 U.S.C. 78) would be applicable to the 
service of a director of a corporation which planned to acquire or 
organize, as proceeds from the sale of stock became available, 
subsidiaries to operate in a wide variety of fields, including 
manufacturing, foreign trade, leasing of heavy equipment, and real 
estate development. The corporation had a paid-in capital of about 
$60,000 and planned to sell additional shares at a price totaling $10 
million, with the proviso that if less than $3 million worth were sold 
by March 1962, the funds subscribed would be refunded. It thus appeared 
to be contemplated that the sale of stock would take at least a year, 
and there appeared to be no reason for believing that, if the venture 
proved successful, additional shares would not be offered so that the 
corporation could continue to expand.
    (b) The Board concluded that section 32 would be applicable, stating 
that although Sec. 218.102, as clarified by Sec. 218.104, related to 
closed-end investment companies, the rationale of that interpretation is 
applicable to corporations generally.

[26 FR 2456, Mar. 23, 1961. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.405  No exception granted a special or limited partner.

    (a) The Board has been asked on several occasions whether section 32 
of the Banking Act of 1933 (12 U.S.C. 78) is applicable to a director, 
officer, or employee of a member bank who is a special or limited 
partner in a firm primarily engaged in the business described in that 
section.
    (b) Since the Board cannot issue an individual permit, it can exempt 
a limited or special partner only by amending part 218 (Regulation R). 
After the statute was amended in 1935 so as to make it applicable to a 
partner, the Board carefully considered the desirability of making such 
an exception. On several subsequent occasions it has reconsidered the 
question. In each instance the Board has decided that in view of a 
limited partner's interest in the underwriting and distributing 
business, it should not make the exception.

[27 FR 7954, Aug. 10, 1962. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.406  Serving member bank and investment advisor with mutual fund affiliation.

    (a) The opinion of the Board of Governors of the Federal Reserve 
System has been requested with respect to service as vice president of a 
corporation engaged in supplying investment advice and management 
services to mutual funds and others (``Manager'') and as director of a 
member bank.
    (b) Section 32 of the Banking Act of 1933 (12 U.S.C. 78), forbids 
any officer, director, or employee of any corporation ``primarily 
engaged in the issue, flotation, underwriting, public sale, or 
distribution, at wholesale or retail, or through syndicate 
participation, of

[[Page 622]]

stocks, bonds, or other similar securities * * *'' to serve at the same 
time as an officer, director, or employee of a member bank.
    (c) Manager has for several years served a number of different open-
end or mutual funds, as well as individuals, institutions, and other 
clients, as an investment advisor and manager. However, it appears that 
Manager has a close relationship with two of the mutual funds which it 
serves. A wholly owned subsidiary of Manager (``Distributors''), serves 
as distributor for the two mutual funds and has no other function. In 
addition, the chairman and treasurer of Manager, as well as the 
president, assistant treasurer, and a director of Manager, are officers 
and directors of Distributors and trustees of both funds. It appears 
also that a director of Manager is president and director of 
Distributors, while the clerk of Manager is also clerk of Distributors. 
Manager, Distributors and both funds are listed at the same address in 
the local telephone directory.
    (d) While the greater part of the total annual income of Manager 
during the past five years has derived from ``individuals, institutions, 
and other clients'', it appears that a substantial portion has been 
attributable to the involvement with the two funds in question. During 
each of the last four years, that portion has exceeded a third of the 
total income of Manager, and in 1962 it reached nearly 40 percent.
    (e) The Board has consistently held that an open-end or mutual fund 
is engaged in the activities described in section 32, so long as it is 
issuing its securities for sale, since it is apparent that the more or 
less continued process of redemption of the stock issued by such a 
company would restrict and contract its activities if it did not 
continue to issue the stock. Clearly, a corporation that is engaged in 
underwriting or selling open-end shares, is so engaged.
    (f) In connection with incorporated manager-advisors to open-end or 
mutual funds, the Board has expressed the view in a number of cases that 
where the corporation served a number of different clients, and the 
corporate structure was not interlocked with that of mutual fund and 
underwriter in such a way that it could be regarded as being controlled 
by or substantially one with them, it should not be held to be 
``primarily engaged'' in section 32 activities. On the other hand, where 
a manager-advisor was created for the sole purpose of serving a 
particular fund, and its activities were limited to that function, the 
Board has regarded the group as a single entity for purposes of section 
32.
    (g) In the present case, the selling organization is a wholly-owned 
subsidiary of the advisor-manager, hence subject to the parent's 
control. Stock of the subsidiary will be voted according to decisions by 
the parent's board of directors, and presumably will be voted for a 
board of directors of the subsidiary which is responsive to policy lines 
laid down by the parent. Financial interests of the parent are obviously 
best served by an aggressive selling policy, and, in fact, both the 
share and the absolute amount of the parent's income provided by the two 
funds have shown a steady increase over recent years. The fact that 
dividends from Distributors have represented a relatively small 
proportion of the income of Manager, and that there were, indeed, no 
dividends in 1961 or 1962, does not support a contrary argument, in view 
of the steady increase in total income of Manager from the funds and 
Distributors taken as a whole.
    (h) In view of all these facts, the Board has concluded that the 
separate corporate entities of Manager and Distributors should be 
disregarded and Distributors viewed as essentially a selling arm of 
Manager. As a result of this conclusion, section 32 would forbid 
interlocking service as an officer of Manager and a director of a member 
bank.

[28 FR 13437, Dec. 12, 1963. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.407   Interlocking relationship involving securities affiliate of brokerage firm.

    (a) The Board of Governors was asked recently whether section 32 of 
the Banking Act of 1933 (``section 32''), 12 U.S.C. 78, prohibits the 
interlocking service of X as a director of a member bank of the Federal 
Reserve System and as a partner in a New York City brokerage firm 
(``Partnership'') having

[[Page 623]]

a corporation affiliate (``Corporation'') engaged in business of the 
kinds described in section 32 (``section 32 business'').
    (b) Section 32, subject to an exception not applicable here, 
provides that

    No officer, director, or employee of any corporation or 
unincorporated association, no partner or employee of any partnership, 
and no individual, primarily engaged in the issue, flotation, 
underwriting, public sale, or distribution, at wholesale or retail, or 
through syndicate participation, of stocks, bonds, or other similar 
securities, shall serve the same time as an officer, director, or 
employee of any member bank * * *.

    (c) From the information submitted it appears that Partnership, a 
member firm of the New York Stock Exchange, is the successor of two 
prior partnerships, in one of which X had been a partner. This prior 
partnership had been found not to be ``primarily engaged'' in section 32 
business. The other prior partnership, however, had been so engaged. By 
arrangement between the two prior firms, Corporation was formed chiefly 
for the purpose of carrying on the section 32 business of the prior firm 
that had been ``primarily engaged'' in that business, which business was 
transferred to Corporation. The two prior firms were then merged and the 
stock of Corporation was acquired by all the partners of Partnership, 
other than X, in proportion to the respective partnership interests of 
the stockholding partners. The information submitted indicated also that 
two of the three directors and ``some'' of the principal officers of 
Corporation are partners in Partnership, although X is not a director or 
officer of Corporation.
    (d) It is understood that the practice of forming corporate 
affiliates of brokerage firms, in order that the affiliate may carry on 
the securities business (such as section 32 business) with limited 
liability and other advantages, has become rather widespread in recent 
years. Accordingly, other cases may arise where a partner in such a firm 
may desire to serve at the same time as director of a member bank.
    (e) On the basis of the information presented the Board concluded 
that X in his capacity as an ``individual'', was not engaged in section 
32 business. However, as that information showed Corporation to be 
``primarily engaged'' in section 32 business, the Board stated that a 
finding that Partnership and Corporation were one entity for the 
purposes of the statute would mean that X would be forbidden to serve 
both the member bank and Partnership, if the one entity were so engaged.
    (f) Paragraph .15 of Rule 321 of the New York Stock Exchange 
governing the formation and conduct of affiliated companies of member 
organizations states that:

    Since Rule 314 provides that each member and allied member in a 
member organization must have a fixed interest in its entire business, 
it follows that the fixed interest of each member and allied member must 
extend to the member organization's corporate affiliate. When any of the 
corporate affiliate's participating stock is owned by the members and 
allied members in the member organization, such holdings must at all 
times be distributed among such members and allied members in 
approximately the same proportions as their respective interests in the 
profits of the member organization. When a member or allied member's 
interest in the member organization is changed, a corresponding change 
must be made in his participating interest in the affiliate.

    (g) Although it was understood that X had received special 
permission from the Exchange not to own any of the stock of Corporation, 
it appeared to the Board that Rule 321.15 would apply to the remaining 
partners. Moreover, other paragraphs of the rule forbid transfers of the 
stock, except under certain circumstances to limited classes of persons, 
such as employees of the organization or estates of decedent partners, 
without permission of the Exchange.
    (h) The information supplied to the Board clearly indicated that 
Corporation was formed in order to provide Partnership with an 
``underwriting arm''. Under Rule 321 of the Exchange, the partners 
(other than X) are required to own stock in Corporation because of their 
partnership interest, would be required to surrender that stock on 
leaving the partnership, and incoming partners would be required to 
acquire such stock. Furthermore, Rule 321 speaks of a corporate 
affiliate, such as Corporation, as a part of the ``entire business'' of 
a member organization.

[[Page 624]]

    (i) On the basis of the foregoing, the Board concluded that 
Partnership and Corporation must be regarded as a single entity or 
enterprise for purposes of section 32.
    (j) The remaining question was whether the enterprise, as a whole, 
should be regarded as ``primarily engaged'' in section 32 business. The 
Information presented stated that the total dollar volume of section 32 
business of Corporation during the first eleven months of its operation 
was $89 million. The gross income from section 32 business was less than 
half a million, and represented about 7.9 percent of the income of 
Partnership. The Board was advised that the relatively low amount of 
income from section 32 business of Corporation as due to special costs, 
and to the condition of the market for municipal and State bonds during 
the past year, a field in which Corporation specializes. Corporation is 
listed in a standard directory of securities dealers, and holds itself 
out as having separate departments to deal with the principal 
underwriting areas in which it functions.
    (k) In view of the above information, the Board concluded that the 
enterprise consisting of Partnership and Corporation was ``primarily 
engaged'' in section 32 business. Accordingly, the Board stated that the 
partners in Partnership, including X, were forbidden by that section and 
by this part 218 (Reg. R), issued pursuant to the statute, to serve as 
officers, directors, or employees of any member banks.

[29 FR 5315, Apr. 18, 1964. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.408   Short-term negotiable notes of banks not securities under section 32, Banking Act of 1933.

    (a) The Board of Governors has been asked whether short-term 
unsecured negotiable notes of the kinds issued by some of the large 
banks in this country as a means of obtaining funds are ``other similar 
securities'' within the meaning of section 32, Banking Act of 1933 (12 
U.S.C. 78) and this part.
    (b) Section 32 forbids certain interlocking relationships between 
banks which are members of the Federal Reserve System and individuals or 
organizations ``primarily engaged in the issue, flotation, underwriting, 
public sale, or distribution, at wholesale or retail, or through 
syndicate participation, of stocks, bonds, or other similar securities * 
* *.'' Therefore, if such notes are securities similar to stocks or 
bonds, any dealing therein would be an activity covered in section 32 
and would have to be taken into consideration in determining whether the 
individual or organization involved was ``primarily engaged'' in such 
activities.
    (c) The Board has concluded that such short-term notes of the kind 
described above are not ``other similar securities'' within the meaning 
of section 32 and this part.

[29 FR 16065, Dec. 2, 1964. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.409   Investment for own account affects applicability of section 32.

    (a) The Board of Governors has been presented with the question 
whether a certain firm is primarily engaged in the activities described 
in section 32 of the Banking Act of 1933. If the firm is so engaged, 
then the prohibitions of section 32 forbids a limited partner to serve 
as employee of a member bank.
    (b) The firm describes the bulk of its business, producing roughly 
60 percent of its income, as ``investing for its own account.'' However, 
it has a seat on the local stock exchange, and acts as specialist and 
odd-lot dealer on the floor of the exchange, an activity responsible for 
some 30 percent of its volume and profits. The firm's ``off-post 
trading,'' apart from the investment account, gives rise to about 5 
percent of its total volume and 10 percent of its profits. Gross volume 
has risen from $4 to $10 million over the past 3 years, but underwriting 
has accounted for no more than one-half of 1 percent of that amount.
    (c) Section 32 provides that

    No officer, director, or employee of any corporation or 
unincorporated association, no partner, or employee of any partnership, 
and no individual, primarily engaged in the issue, flotation, 
underwriting, public sale, or distribution, at wholesale, or retail, or 
through syndicate participation, of stocks, bonds, or other similar 
securities, shall serve the same time (sic) as an officer, director, or 
employee of any member bank * * *


[[Page 625]]


    (d) In interpreting this language, the Board has consistently held 
that underwriting, acting as a dealer, or generally speaking, selling, 
or distributing securities as a principal, is covered by the section, 
while acting as broker or agent is not.
    (e) In one type of situation, however, although a firm was engaged 
in selling securities as principal, on its own behalf, the Board held 
that section 32 did not apply. In these cases, the firm alleged that it 
bought and sold securities purely for investment purposes. Typically, 
those cases involved personal holding companies or small family 
investment companies. Securities had been purchased only for members of 
a restricted family group, and had been held for relatively long periods 
of time.
    (f) The question now before the Board is whether a similar exception 
can apply in the case of the investment account of a professional 
dealer. In order to answer this question, it is necessary to analyze, in 
the light of applicable principles under the statute, the three main 
types of activity in which the firm has been engaged, (1) acting as 
specialist and odd-lot dealer, (2) off-post trading as an ordinary 
dealer, and (3) investing for its own account.
    (g) On several occasions, the Board has held that, to the extent the 
trading of a specialist or odd-lot dealer is limited to that required 
for him to perform his function on the floor of the exchange, he is 
acting essentially in an agency capacity. In a letter of September 13, 
1934, the Board held that the business of a specialist was not of the 
kind described in the (unamended) section on the understanding that

    * * * in acting as specialists on the New York Curb Exchange, it is 
necessary for the firm to buy and sell odd lots and * * * in order to 
protect its position after such transactions have been made, the firm 
sells or buys shares in lots of 100 or multiples thereof in order to 
reduce its position in the stock in question to the smallest amount 
possible by this method. It appears therefore that, in connection with 
these transactions, the firm is neither trading in the stock in question 
or taking a position in it except to the extent made necessary by the 
fact that it deals in odd lots and cannot complete the transactions by 
purchases and sales on the floor of the exchange except to the nearest 
100 share amount.

    (h) While subsequent amendments to section 32 to some extent changed 
the definition of the kinds of securities business that would be covered 
by the section, the amendments were designed so far as is relevant to 
the present question, to embody existing interpretations of the Board. 
Accordingly, to the extent that the firm's business is described by the 
above letter of the Board, it should not be considered to be of a kind 
described in section 32.
    (i) Turning to the firm's off-post trading, the Board is inclined to 
agree with the view that this is sufficient to make the case a 
borderline one under the statute. In the circumstances, the Board might 
prefer to postpone making a determination until figures for 1965 could 
be reviewed, particularly in the light of the recent increase in total 
volume, if it were not for the third category, the firm's own investment 
account.
    (j) While this question has not been squarely presented to it in the 
past, the Board is of the opinion that when a firm is doing any 
significant amount of business as a dealer or underwriter, then 
investments for the firm's own account should be taken into 
consideration in determining whether the firm is ``primarily engaged'' 
in the activities described in section 32. The division into dealing for 
one's own account, and dealing with customers, is a highly subjective 
one, and although a particular firm or individual may be quite 
scrupulous in separating the two, the opportunity necessarily exists for 
the kind of abuse at which the statute is directed. The Act is designed 
to prevent situations from arising in which a bank director, officer, or 
employee could influence the bank or its customers to invest in 
securities in which his firm has an interest, regardless of whether he, 
as an individual, is likely to do so. In the present case, when these 
activities are added to the firm's ``off-post trading'', the firm 
clearly falls within the statutory definition.
    (k) For the reasons just discussed, the Board concludes that the 
firm must be considered to be primarily engaged in activities described 
in section 32, and that the prohibitions of the section

[[Page 626]]

forbid a limited partner in that firm to serve as employee of a member 
bank.

(12 U.S.C. 248(i))

[30 FR 7743, June 16, 1965. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.410   Interlocking relationships between bank and its commingled investment account.

    (a) The Board of Governors was asked recently whether the 
establishment of a proposed ``Commingled Investment Account'' 
(``Account'') by a national bank would involve a violation of section 32 
of the Banking Act of 1933 in view of the interlocking relationships 
that would exist between the bank and Account.
    (b) From the information submitted, it was understood that Account 
would comprise a commingled fund, to be operated under the effective 
control of the bank, for the collective investment of sums of money that 
might otherwise be handled individually by the bank as managing agent. 
It was understood further that the Comptroller of the Currency had taken 
the position that Account would be an eligible operation for a national 
bank under his Regulation 9, ``Fiduciary Powers of National Banks and 
Collective Investment Funds'' (part 9 of this title). The bank had 
advised the Board that the Securities and Exchange Commission was of the 
view that Account would be a ``registered investment company'' within 
the meaning of the Investment Company Act of 1940, and that 
participating interests in Account would be ``securities'' subject to 
the registration requirements of the Securities Act of 1933.
    (c) The information submitted showed also that the minimum 
individual participation that would be permitted in Account would be 
$10,000, while the maximum acceptable individual investment would be 
half a million dollars; that there would be no ``load'' or payment by 
customers for the privilege of investing in Account; and that:

    The availability of the Commingled Account would not be given 
publicity by the Bank except in connection with the promotion of its 
fiduciary services in general and the Bank would not advertise or 
publicize the Commingled Account as such. Participations in the 
Commingled Account are to be made available only on the premises of the 
Bank (including its branches), or to persons who are already customers 
of the Bank in other connections, or in response to unsolicited 
requests.

    (d) Such information indicated further that participations would be 
received by the bank as agent, under a broad authorization signed by the 
customer, substantially equivalent to the power of attorney under which 
customers currently deposit their funds for individual investment, and 
that the participations would not be received ``in trust.''
    (e) The Board understood that Account would be required to comply 
with certain requirements of the Federal securities laws not applicable 
to an ordinary common trust fund operated by a bank. In particular, 
supervision of Account would be in the hands of a committee to be 
initially appointed by the bank, but subsequently elected by 
participants having a majority of the units of participation in Account. 
At least one member of the committee would be entirely independent of 
the bank, but the remaining members would be officers in the trust 
department of the bank.
    (f) The committee would make a management agreement with the bank 
under which the bank would be responsible for managing Account's 
investments, have custody of its assets, and maintain its books and 
records. The management agreement would be renewed annually if approved 
by the committee, including a ``majority'' of the independent members, 
or by a vote of participants having a majority of the units of 
participation. The agreement would be terminable on 60 days' notice by 
the committee, by such a majority of the participants, or by the bank, 
and would terminate automatically if assigned by the bank.
    (g) It was understood also that the bank would receive as annual 
compensation for its services one-half of one percent of Account's 
average net assets. Account would also pay for its own independent 
professional services, including legal, auditing, and accounting 
services, as well as the cost of maintaining its registration and 
qualification under the Federal securities laws.

[[Page 627]]

    (h) Initially, the assets of Account would be divided into units of 
participation of an arbitrary value, and each customer would be credited 
with a number of units proportionate to his investment. Subsequently, 
the assets of Account would be valued at regular intervals, and divided 
by the number of units outstanding. New investors would receive units at 
their current value, determined in this way, according to the amount 
invested. Each customer would receive a receipt evidencing the number of 
units to which he was entitled. The receipts themselves would be 
nontransferable, but it would be possible for a customer to arrange with 
Account for the transfer of his units to someone else. A customer could 
terminate his participation at any time and withdraw the current value 
of his units.
    (i) Section 32 of the Banking Act of 1933 provides in relevant part 
that:

    No officer, director, or employee of any corporation or 
unincorporated association, no partner or employee of any partnership, 
and no individual, primarily engaged in the issue, flotation, 
underwriting, public sale, or distribution, at wholesale or retail, or 
through syndicate participation, of stocks, bonds, or other similar 
securities, shall serve [at] the same time as an officer, director, or 
employee of any member bank * * *.

    (j) The Board concluded, based on its understanding of the proposal 
and on the general principles that have been developed in respect to the 
application of section 32, that the bank and Account would constitute a 
single entity for the purposes of section 32, at least so long as the 
operation of Account conformed to the representations made by the bank 
and outlined herein. Accordingly, the Board said that section 32 would 
not forbid officers of the bank to serve on Account's committee, since 
Account would be regarded as nothing more than an arm or department of 
the bank.
    (k) In conclusion, the Board called attention to section 21 of the 
Banking Act of 1933 which, briefly, forbids a securities firm or 
organization to engage in the business of receiving deposits, subject to 
certain exceptions. However, since section 21 is a criminal statute, the 
Board has followed the policy of not expressing views as to its meaning. 
(1934 Federal Reserve Bulletin 41, 543.) The Board, therefore, expressed 
no position with respect to whether the section might be held applicable 
to the establishment and operation of the proposed ``Commingled 
Investment Account.''

(12 U.S.C. 248(i))

[30 FR 12836, Oct. 8, 1965. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.411   Interlocking relationships between member bank and variable annuity insurance company.

    (a) The Board has recently been asked to consider whether section 32 
of the Banking Act of 1933 (12 U.S.C. 78) and this part prohibit 
interlocking service between member banks and (1) the board of managers 
of an accumulation fund, registered under the Investment Company Act of 
1940 (15 U.S.C. 80), that sells variable annuities and (2) the board of 
directors of the insurance company, of which the accumulation fund is a 
``separate account,'' but as to which the insurance company is the 
sponsor, investment advisor, underwriter, and distributor. Briefly, a 
variable annuity is one providing for annuity payment varying in 
accordance with the changing values of a portfolio of securities.
    (b) Section 32 provides in relevant part that:

    No officer, director, or employee of any corporation or 
unincorporated association, no partner or employee of any partnership, 
and no individual, primarily engaged in the issue, flotation, 
underwriting, public sale, or distribution, at wholesale or retail, or 
through syndicate participation, of stocks, bonds, or other similar 
securities, shall serve [at] the same time as an officer, director, or 
employee of any member bank * * *.

    (c) For many years, the Board's position has been that an open-end 
investment company (or mutual fund) is ``primarily engaged in the issue 
* * * public sale, or distribution * * * of securities'' since the 
issuance and sale of its stock is essential to the maintenance of the 
company's size and to the continuance of its operations without 
substantial contraction, and that section 32 of the Banking Act of 1933 
prohibits an officer, director, or employee of any such company from 
serving at the same time as an officer, director,

[[Page 628]]

or employee of any member bank. (1951 Federal Reserve Bulletin 645; 
Sec. 218.101.)
    (d) For reasons similar to those stated by the U.S. Supreme Court in 
Securities and Exchange Commission v. Variable Annuity Life Insurance 
Company of America, 359 U.S. 65 (1959), the Board concluded that there 
is no meaningful basis for distinguishing a variable annuity interest 
from a mutual fund share for section 32 purposes and that, therefore, 
variable annuity interests should also be regarded as ``other similar 
securities'' within the prohibition of the statute and regulation.
    (e) The Board concluded also that, since the accumulation fund, like 
a mutual fund, must continually issue and sell its investment units in 
order to avoid the inevitable contraction of its activities as it makes 
annuity payments or redeems variable annuity units, the accumulation 
fund is ``primarily engaged'' for section 32 purposes. The Board further 
concluded that the insurance company was likewise ``primarily engaged'' 
for the purposes of the statute since it had no significant revenue 
producing operations other than as underwriter and distributor of the 
accumulation fund's units and investment advisor to the fund.
    (f) Although it was clear, therefore, that section 32 prohibits any 
officers, directors, and employees of member banks from serving in any 
such capacity with the insurance company or accumulation fund, the Board 
also considered whether members of the board of managers of the 
accumulation fund are ``officers, directors, or employees'' within such 
prohibition. The functions of the board of managers, who are elected by 
the variable annuity contract owners, are, with the approval of the 
variable annuity contract owners, to select annually an independent 
public accountant, execute annually an agreement providing for 
investment advisory services, and recommend any changes in the 
fundamental investment policy of the accumulation fund. In addition, the 
Board of managers has sole authority to execute an agreement providing 
for sales and administrative services and to authorize all investments 
of the assets of the accumulation fund in accordance with its 
fundamental investment policy. In the opinion of the Board of Governors, 
the board of managers of the accumulation fund performs functions 
essentially the same as those performed by classes of persons as to whom 
the prohibition of section 32 was specifically directed and, 
accordingly, are within the prohibitions of the statute.

(12 U.S.C. 248(i))

[33 FR 12886, Sept. 12, 1968. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.412   Interlocking relationships between member bank and insurance company-mutual fund complex.

    (a) The Board has been asked whether section 32 of the Banking Act 
of 1933 and this part prohibited interlocking service between member 
banks and (1) the advisory board of a newly organized open-end 
investment company (mutual fund), (2) the fund's incorporated investment 
manager-advisor, (3) the insurance company sponsoring and apparently 
controlling the fund.
    (b) X Fund, Inc. (``Fund''), the mutual fund, was closely related to 
X Life Insurance Company (``Insurance Company''), as well as to the 
incorporated manager and investment advisor to Fund (``Advisors''), and 
the corporation serving as underwriter for Fund (``Underwriters''). The 
same persons served as principal officers and directors of Insurance 
Company, Fund, Advisors, and Underwriters. In addition, several 
directors of member banks served as directors of Insurance Company and 
of Advisors and as members of the Advisory Board of Fund, and additional 
directors of member banks had been named only as members of the Advisory 
Board. All outstanding shares of Advisors and of Underwriters were 
apparently owned by Insurance Company.
    (c) Section 32 provides in relevant part that:

    No officer, director, or employee of any corporation * * * primarily 
engaged in the issue, flotation, underwriting, public sale, or 
distribution at wholesale or retail, or through syndicate participation, 
of stocks, bonds, or other similar securities, shall serve [at] the same 
time as an officer, director, or employee of any member bank * * *.

    (d) The Board of Governors reaffirmed its earlier position that an 
open-end investment company is ``primarily engaged'' in activities 
described

[[Page 629]]

in section 32 ``even though the shares are sold to the public through 
independent organizations with the result that the investment company 
does not derive any direct profit from the sales.'' (1951 Federal 
Reserve Bulletin 654, Sec. 218.101.) Accordingly, the Board concluded 
that Fund must be regarded as so engaged, even though its shares were 
underwritten and distributed by Underwriters.
    (e) As directors of the member banks involved in the inquiry were 
not officers, directors, or employees of either Fund or Underwriters, 
the relevant questions were whether--(1) Advisors, and (2) Insurance 
Company, should be regarded as being functionally and structurally so 
closely allied with Fund that they should be treated as one with it in 
determining the applicability of section 32. An additional question was 
whether members of the Advisory Board are ``officers, directors, or 
employees'' of Fund within the prohibition of the statute.
    (f) Interlocking service with Advisory Board: The function of the 
Advisory Board was merely to make suggestions and to counsel with Fund's 
Board of Directors in regard to investment policy. The Advisory Board 
had no authority to make binding recommendations in any area, and it did 
not serve in any sense as a check on the authority of the Board of 
Directors. Indeed, the Fund's bylaws provided that the Advisory Board 
``shall have no power or authority to make any contract or incur any 
liability whatever or to take any action binding upon the Corporation, 
the Officers, the Board of Directors or the Stockholders.'' Members of 
the Advisory Board were appointed by the Board of Directors of Fund, 
which could remove any member of the Advisory Board at any time. None of 
the principal officers of Fund or of Underwriters were members of the 
Advisory Board; and the compensation of its members was expected to be 
nominal.
    (g) The Board of Governors concluded that members of the Advisory 
Board need not be regarded as ``officers, directors, or employees'' of 
Fund or of Underwriters for purposes of section 32, and that the 
statute, therefore, did not prohibit officers, directors, or employees 
of member banks from serving as members of the Advisory Board.
    (h) Interlocking service with Advisors: The principal officers and 
several of the directors of Advisors were identical with both those of 
Fund and of Underwriters. Entire management and investment 
responsibility for Fund had been placed, by contract, with Advisors, 
subject only to a review authority in the Board of Directors of Fund. 
Advisors also supplied office space for the conduct of Fund's affairs, 
and compensated members of the Advisory Board who are also officers or 
directors of Advisors. Moreover, it appeared that Advisors was created 
for the sole purpose of servicing Fund, and its activities were to be 
limited to that function.
    (i) In the view of the Board of Governors, the structural and 
functional identity of Fund and Advisors was such that they were to be 
regarded as a single entity for purposes of section 32, and, 
accordingly, officers, directors, and employees of member banks were 
prohibited by section 32 from serving in any such capacity with such 
entity.
    (j) Interlocking service with Insurance Company: It was clear that 
Insurance Company was not as yet ``primarily engaged'' in business of a 
kind described in section 32 with respect to the shares of the newly 
created Fund sponsored by Insurance Company, since the issue and sale of 
such shares had not yet commenced. Nor did it appear that Insurance 
Company would be so engaged in the preliminary stages of Fund's 
existence, when the disproportion between the insurance business of 
Insurance Company and the sale of Fund shares would be very great. 
However, it was also clear that if Fund was successfully launched, its 
activities would rather quickly reach a stage where a serious question 
would arise as to the applicability of the section 32 prohibition.
    (k) An estimate supplied to the Board indicated that 100,000 shares 
of Fund might be sold annually to produce, based on then current values, 
annual gross sales receipts of over $1 million. Insurance Company's 
total gross income for its last fiscal year was almost $10 million. On 
this basis, about one-tenth of the annual gross income of the

[[Page 630]]

Insurance Company-Fund complex (more than one-tenth, if income from 
investments of Insurance Company was eliminated) would be derived from 
sales of Fund shares. Although total sales of shares of Fund during the 
first year might not approximate expectations, it was assumed that if 
the estimate or projection was correct, the annual rate of sale might 
well rise to that level before the end of the first year of operation.
    (l) It appeared that net income of Insurance Company from Fund's 
operations would be minimal for the foreseeable future. However, it was 
understood that Insurance Company's chief reason for launching Fund was 
to provide salesmen for Insurance Company (who were to be the only 
sellers of shares of Fund, and most of whom, Insurance Company hoped, 
would qualify to sell those shares), with a ``package'' of mutual fund 
shares and life insurance policies that would provide increased 
competitive strength in a highly competitive field.
    (m) The Board concluded that Insurance Company would be ``primarily 
engaged'' in issuing or distributing shares of Fund within the meaning 
of section 32 by not later than the time of realization of the 
aforementioned estimated annual rate of sale, and possibly before. As 
indicated in Board of Governors v. Agnew, 329 U.S. 441 at 446, the 
prohibition of the statute applies if the section 32 business involved 
is a ``substantial'' activity of the company.
    (n) This, the Board observed, was not to suggest that officers, 
directors, or employees of Insurance Company who are also directors of 
member banks would be likely, as individuals, to use their positions 
with the banks to further sales of Fund's shares. However, as the 
Supreme Court pointed out in the Agnew case, section 32 is a 
``preventive or prophylactic measure.'' The fact that the individuals 
involved ``have been scrupulous in their relationships'' to the banks in 
question ``is immaterial.''

(12 U.S.C. 248(i))

[33 FR 13001, Sept. 14, 1968. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.413  ``Bank-eligible'' securities activities.

    Section 32 of the Glass-Steagall Act (12 U.S.C. 78) prohibits any 
officer, director, or employee of any corporation or unincorporated 
association, any partner or employee of any partnership, and any 
individual, primarily engaged in the issue, flotation, underwriting, 
public sale, or distribution, at wholesale or retail, or through 
syndicate participation, of stocks, bonds, or other similar securities, 
from serving at the same time as an officer, director, or employee of 
any member bank of the Federal Reserve System. The Board is of the 
opinion that to the extent that a company, other entity or person is 
engaged in securities activities that are expressly authorized for a 
state member bank under section 16 of the Glass-Steagall Act (12 U.S.C. 
24(7), 335), the company, other entity or individual is not engaged in 
the types of activities described in section 32. In addition, a 
securities broker who is engaged solely in executing orders for the 
purchase and sale of securities on behalf of others in the open market 
is not engaged in the business referred to in section 32.

[Reg. R, 61 FR 57289, Nov. 6, 1996]



PART 261--RULES REGARDING AVAILABILITY OF INFORMATION--Table of Contents




                      Subpart A--General Provisions

Sec.
261.1  Authority, purpose, and scope.
261.2  Definitions.
261.3  Custodian of records; certification; service; alternative 
          authority.

   Subpart B--Published Information and Records Available to Public; 
                         Procedures for Requests

261.5  Published information.
261.6  Records available to public upon request.
261.7  Deferred availability of certain information.
261.8  Exemptions from disclosure.
261.9  Procedures for making requests for indentifiable records; 
          processing of requests; review of denial of request; time 
          extensions.
261.10  Fee schedules; waiver of fees.

[[Page 631]]

    Subpart C--Confidential Information Made Available to Supervised 
     Institutions, Financial Institution Supervisory Agencies, Law 
        Enforcement Agencies, and Others in Certain Circumstances

261.11  Confidential supervisory information made available to 
          supervised financial institutions and financial institution 
          supervisory agencies.
261.12  Confidential information made available to law enforcement 
          agencies and other nonfinancial institution supervisory 
          agencies.
261.13  Other disclosure of confidential supervisory information.
261.14  Subpoenas, orders compelling production and other process.

             Subpart D--Requests for Confidential Treatment

261.15  Scope of subpart.
261.16  Submission and form of request for confidential treatment; 
          action on request.
261.17  Confidential commercial or financial information.

    Authority: 5 U.S.C. 552, 12 U.S.C. 248(k), 321, and 1844.

    Source: 53 FR 20815, June 7, 1988, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 261.1  Authority, purpose, and scope.

    (a) Authority. This regulation is issued by the Board of Governors 
of the Federal Reserve System (the ``Board'') pursuant to 12 U.S.C. 
248(i) and (k) and 5 U.S.C. 552.
    (b) Purpose. This regulation sets forth the kinds of information 
made available to the public, the rules of procedure for obtaining 
documents and records, and the rules of procedure with respect to 
confidential information.
    (c) Scope. (1) Subpart A contains general provisions and definitions 
of terms used in this regulation.
    (2) Subpart B implements the Freedom of Information Act (5 U.S.C. 
552) and explains:
    (i) The kinds of information the Board regularly publishes;
    (ii) The types of records made available to the public upon request;
    (iii) The kinds of information exempt from disclosure or subject to 
deferred availability; and
    (iv) The procedures for obtaining information and for processing 
information requests.
    (3) Subpart C sets forth:
    (i) The kinds of confidential information made available to 
supervised institutions, supervisory agencies, law enforcement agencies, 
and others in certain circumstances;
    (ii) The procedures for disclosure;
    (iii) The procedures for processing law enforcement requests; and
    (iv) The procedures with respect to subpoenas, orders compelling 
production, and other process.
    (4) Subpart D contains the procedures relating to requests for 
confidential treatment of documents and information.



Sec. 261.2  Definitions.

    For purposes of this regulation:
    (a) Board's official files means the Board's central records.
    (b) Confidential supervisory information means cease and desist 
orders, suspension or removal orders, or other orders or actions under 
the Financial Institutions Supervisory Act of 1966, as amended, the Bank 
Holding Company Act of 1956, as amended, or the Federal Reserve Act of 
1913, as amended; reports of examination and inspection, confidential 
operating and condition reports, and any information derived from, 
related to, or contained in them. Confidential supervisory information 
may consist of documents prepared by, on behalf of, or for the use of 
the Board, a Reserve Bank, a Federal or state financial institutions 
supervisory agency, or a bank or bank holding company.
    (c) Information of the Board means all information coming into the 
possession of the Board, any Board member, any Federal Reserve Bank, or 
any officer, employee, or agent of the Board or of any Federal Reserve 
Bank, in the performance of functions for or on behalf of the Board, 
including functions delegated by the Board pursuant to part 265 of this 
chapter.

[[Page 632]]

    (d) (1) Records of the Board includes applications, rules, 
statements, opinions, orders, memoranda, letters, reports, accounts, and 
other written material, as well as magnetic tapes, computer printouts of 
information obtained through use of existing computer programs, maps, 
photographs, and other materials in nonwritten or machine readable form 
that are under the control of the Board, that contain information of the 
Board, and that:
    (i) Constitute part of the Board's official files; or
    (ii) Are maintained for administrative reasons in the regular course 
of business in official files in any division or office of the Board or 
any Federal Reserve Bank in connection with the transaction of any 
official business.
    (2) Records of the Board does not include:
    (i) Handwritten notes; personal files of Board members and 
employees; tangible exhibits, formulas, designs, or other items of 
valuable intellectual property; extra copies of documents and library 
and museum materials kept solely for reference or exhibition purposes; 
unaltered publications otherwise available to the public in Board 
publications, libraries, or established distribution systems;
    (ii) Documents, including lists, and other material not in existence 
or not in the Board's possession or control on the date a request for 
records is received;
    (iii) Documents no longer in the possession of the Board which have 
been disposed of in accordance with law;
    (iv) Copies of transcripts provided to the Board under any reporting 
service contract and that may be obtained directly from the contractor;
    (v) Documents of other agencies made available to the Board on a 
confidential basis by such agencies;
    (vi) Documents that are not the property of the Board and which have 
been made available to the Board on a temporary or otherwise limited 
basis with its consent.
    (e) (1) Report of examination means the report prepared by the Board 
concerning its examination of a state member bank of the Federal Reserve 
System, and includes reports of inspection of bank holding companies, 
U.S. branches or agencies of foreign banks, and other institutions 
examined by the Federal Reserve System. Such reports may be prepared 
either solely by the Board or jointly by the Board and an appropriate 
state bank supervisory agency.
    (2) Reports of examination may include reports of examination of 
other financial institutions prepared and provided to the Federal 
Reserve System by other Federal and state financial institution 
supervisory agencies.
    (f) Report of inspection means the report prepared by the Board 
concerning its inspection of a bank holding company and its bank and 
nonbank subsidiaries.
    (g) (1) Search means a reasonable search of the Board's official 
files and any other files containing Board records as seem reasonably 
likely in the particular circumstances to contain documents of the kind 
requested. Searches may be done manually or by computer using existing 
programming. For purposes of computing fees under Sec. 261.10 of this 
regulation, search time includes all time spent looking for material 
that is responsive to a request, including line-by-line identification 
of material within documents. Such activity is distinct from review of 
material to determine whether the material is exempt from disclosure.
    (2) Search does not mean or include:
    (i) Research;
    (ii) Creation of any information or data retrieval program or 
system;
    (iii) Extensive modification of an existing program or system;
    (iv) Creation of any document, or any other activity that involves 
creative processes rather than simply retrieval of existing documents.



Sec. 261.3  Custodian of records; certification; service; alternative authority.

    (a) Custodian of records. The Secretary of the Board is the official 
custodian of all records of the Board, including all records that are in 
the possession or control of the Board, any Federal Reserve Bank, or any 
Board or Reserve Bank employee.
    (b) Certification of record. The Secretary may certify the 
authenticity of any record of the Board, or of any copy

[[Page 633]]

of such record, for any purpose, and for or before any duly constituted 
Federal or state court, tribunal, or agency.
    (c) Service of subpoenas or other process. Subpoenas or other 
judicial or administrative process demanding access to records of the 
Board shall be addressed to and served upon the Secretary of the Board 
at the Board's offices in Washington, DC 20551.
    (d) Alternative authority--(1) Secretary of the Board. Any action or 
determination required or permitted by this regulation to be done by the 
Secretary of the Board may be done by an Associate Secretary or other 
responsible employee of the Board who has been duly designated for this 
purpose by the Secretary.
    (2) General Counsel. Any action or determination required or 
permitted by this regulation to be done by the General Counsel may, in 
the General Counsel's absence, be done by a deputy or associate general 
counsel or other attorney of the Board's Legal Division who has been 
duly designated for this purpose by the General Counsel.
    (3) Director of Banking Supervision and Regulation. Any action or 
determination required or permitted by this regulation to be done by the 
Director of the Division of Banking Supervision and Regulation may, in 
the Director's absence, be done by the Deputy Director or other official 
of the Division who has been duly designated for this purpose by the 
Director.



   Subpart B--Published Information and Records Available to Public: 
                         Procedures for Requests



Sec. 261.5  Published information.

    (a) Federal Register. The Board publishes in the Federal Register 
for the guidance of the public:
    (1) Descriptions of the Board's central and field organization;
    (2) Statements of the general course and method by which the Board's 
functions are channeled and determined, including the nature and 
requirements of procedures;
    (3) Rules of procedure, descriptions of forms available and the 
place where they may be obtained, and instructions on the scope and 
contents of all papers, reports, and examinations;
    (4) Substantive rules and interpretations of general applicability, 
and statements of general policy;
    (5) Every amendment, revision, or repeal of the foregoing;
    (6) General notices of proposed rulemaking;
    (7) Notices of applications received under the Bank Holding Company 
Act of 1956 (12 U.S.C. 1841 et seq.) and the Change in Bank Control Act 
(12 U.S.C. 1817);
    (8) Notices of formal public hearings ordered by the Board;
    (9) Notices of all Board meetings, pursuant to 5 U.S.C. 552b;
    (10) Notices identifying the Board's systems of records, pursuant to 
5 U.S.C. 552a; and
    (11) Notices of agency data collection forms being reviewed under 
the Paperwork Reduction Act (5 U.S.C. 3501 et seq.).
    (b) Board's reports to Congress--(1) Annual report under Federal 
Reserve Act. The Board's annual report to Congress pursuant to the 
Federal Reserve Act (12 U.S.C. 247), which is made public upon its 
submission to Congress, contains a full account of the Board's 
operations during the year, an economic review of the year, and 
legislative recommendations to Congress. The report includes:
    (i) A full account of the policy actions taken by the Board and the 
Federal Open Market Committee, showing the votes taken and the 
underlying reasons (12 U.S.C. 247a);
    (ii) Material pertaining to administering Board functions under the 
Bank Holding Company Act of 1956 (12 U.S.C. 1843(c) and 1844(d));
    (iii) Material pertaining to bank mergers approved by the Board 
under section 18(c) of the Federal Deposit Insurance Act (12 U.S.C. 
1828(c)(9)); and
    (iv) Reports required by section 114 of the Truth in Lending Act (15 
U.S.C. 1613); section 602 of the Change in Bank Control Act (12 U.S.C. 
1817(j)(14)); section 121 of the Securities and Exchange Act (15 U.S.C. 
78w(b)); the Securities Act Amendments of 1975 (15 U.S.C. 78w); section 
707 of the Equal Credit

[[Page 634]]

Opportunity Act (15 U.S.C. 1691f); section 18 of the Federal Trade 
Commission Improvement Act (12 U.S.C. 57a(f)(5)); section 918 of the 
Electronic Funds Transfer Act (15 U.S.C. 1693p); section 805 of the 
Community Reinvestment Act (12 U.S.C. 2904); and section 3(h) of the 
International Banking Act of 1978, Pub. L. 95-369.
    (2) Reports under other Acts. The Board also reports to Congress 
annually, or at more frequent intervals, under certain Acts of Congress, 
including but not limited to the Freedom of Information Act (5 U.S.C. 
552(e)); the Government in the Sunshine Act (5 U.S.C. 552b(i)); and the 
Full Employment and Balanced Growth Act of 1978 (12 U.S.C. 225a), 
concerning the administration of its functions under each of these acts.
    (c) Federal Reserve Bulletin--(1) Contents. In the Federal Reserve 
Bulletin, which is issued monthly, the Board publishes:
    (i) Economic and statistical information;
    (ii) Articles on subjects of economic interest or relating to Board 
activities;
    (iii) Regulations;
    (iv) Statements of general policy;
    (v) Interpretations of laws and regulations of general interest to 
the public;
    (vi) Notices of Board action on certain types of applications; and
    (vii) Board orders and accompanying statements on certain types of 
adjudications.
    (2) Advanced release of information. Some material published in the 
Bulletin is released in advance of publication, including certain 
regulations, interpretations, orders and opinions, and the Board's index 
of industrial production and other statistical series.
    (d) Other published information--(1) Statements of financial 
condition. As required by section 11(a) of the Federal Reserve Act (12 
U.S.C. 248(a)), the Board issues weekly a statement showing the 
condition of each Federal Reserve Bank and a consolidated statement of 
the condition of all Federal Reserve Banks.
    (2) Index of applications. The Board also issues weekly an index of 
the applications received and the actions taken on such applications, as 
well as other matters issued, adopted, or promulgated by the Board.
    (3) Statement of changes in bank structure. In addition, the Board 
issues weekly a statement showing changes in the structure of the 
banking industry resulting from mergers and the establishment of 
branches.
    (4) Press releases. The Board frequently issues statements to the 
press and public regarding monetary and credit actions, regulatory 
actions, actions taken on certain types of applications, and other 
matters. Current press releases may be obtained from the Board's 
Publications Services Section.
    (5) Computer tapes. The Board periodically prepares data of various 
kinds on computer tapes, which are available to the public through the 
National Technical Information Service and may be obtained by the 
procedure described in Sec. 261.6(c)(3) of this regulation.
    (6) Regulatory Service. The Board publishes The Federal Reserve 
Regulatory Service, which is a multivolume looseleaf service containing 
statutes, regulations, interpretations, rulings, staff opinions, and 
procedural rules under which the Board operates. Parts of the Service 
are also published as separate looseleaf handbooks relating to Consumer 
and Community Affairs, Monetary Policy and Reserve Requirements, and 
Securities Credit Transactions. The Service and each handbook contain 
subject and citation indexes, are updated monthly, and may be subscribed 
to on a yearly basis.
    (7) Lists of Board publications. The Board's Publications Services 
Section maintains a list of Board publications that are available to the 
public. In addition, a partial list of important publications is 
published in the Federal Reserve Bulletin.
    (e) Indexes to Board actions. (1) The Board's Freedom of Information 
Office maintains an index to Board actions which provides identifying 
information about any matters issued, adopted, and promulgated by the 
Board since July 4, 1967. The index is updated weekly and is available 
to the public on microform. Copies of the index may be obtained upon 
request to the Secretary of the Board subject to the current schedule of 
charges, as described in Sec. 261.10 of this regulation.

[[Page 635]]

    (2) In addition, the Board publishes a weekly index, as described in 
paragraph (d)(2) of this section, which provides identifying information 
on a current basis about matters issued, adopted, and promulgated by the 
Board. The weekly index is available from the Publications Services 
Section on a subscription or a single issue basis pursuant to a current 
schedule of charges. Back issues of this index are available from the 
Secretary of the Board subject to the schedule of charges, described in 
Sec. 261.10 of this regulation.
    (f) Obtaining Board publications. All publications issued by the 
Board may be obtained from the Publications Services Section of the 
Federal Reserve Board, 20th Street and Constitution Ave., NW., 
Washington, DC 20551 (pedestrian entrance is on C Street, NW.), 
including: (1) Current and available back issues of the Board's Annual 
Report to Congress (copies of the Board's Annual Report to Congress are 
also normally available for examination at each Federal Reserve Bank); 
and (2) single current and available back issues of the Federal Reserve 
Bulletin, which may be obtained at the prescribed rates (any individual 
or group may subscribe annually to the Bulletin, at the prescribed 
rate).

[53 FR 20815, June 7, 1988, as amended at 53 FR 23383, June 22, 1988]



Sec. 261.6  Records available to public upon request.

    (a) Types of records made available. Subject to the provisions of 
this regulation, the following records shall be made available for 
inspection and copying upon request, unless they were published promptly 
and made available for sale or without charge:
    (1) Orders made in the adjudication of cases, and final opinions, 
including concurring and dissenting opinions, and orders and opinions 
issued pursuant to authority delegated by the Board;
    (2) Interpretations and statements of policy adopted by the Board 
that are not published in the Federal Register;
    (3) Records of the final votes of Board members;
    (4) Administrative staff manuals and instructions to staff that 
affect the public; and
    (5) Other records subject to disclosure pursuant to 5 U.S.C. 552.
    (b) Exceptions and limitations--(1) Confidentiality. The Board may 
delete identifying details from any record to prevent a clearly 
unwarranted invasion of personal privacy. The Board shall state in 
writing the reason for the deletion.
    (2) Deferred availability. Availability of information in any record 
may be postponed, as provided in Sec. 261.7 of this regulation.
    (3) Exempt records; discretionary release. Some records are exempt 
from disclosure under 5 U.S.C. 552(b), as described in Sec. 261.8 of 
this regulation. However, except where disclosure is expressly 
prohibited by statute, regulation, or order, the Board may release 
records that are exempt from mandatory disclosure whenever the Board or 
designated Board members, the Secretary of the Board, the General 
Counsel of the Board, the Director of the Division of Banking 
Supervision and Regulation, or the appropriate Federal Reserve Bank, 
acting pursuant to this regulation or part 265 of this title, determines 
that such disclosure would be in the public interest. In no event shall 
the release of information that has been requested for commercial 
solicitation purposes be considered to be in the public interest unless 
such release is specifically authorized by the persons named in the 
records to be released.
    (4) Nonexempt information. Although the Board may deny access to 
portions of a record, it shall release reasonably segregable nonexempt 
portions.
    (5) Requests for applications, notices, and reports. The Board 
preliminarily identifies public portions of most applications filed 
under the Bank Holding Company Act, notices filed under the Change in 
Bank Control Act, and other reports filed in connection with its 
supervision of financial institutions. The public portions contain 
information that may be released by the Board or appropriate Federal 
Reserve Bank without further review. Each request

[[Page 636]]

for these applications, notices, and reports shall be considered to be a 
request for the public portions only, unless the requester specifically 
seeks access to the entire document.
    (6) Disposal of records. Nothing in this regulation precludes the 
Board from disposing of records eligible for disposal in the normal 
course of business and in accordance with applicable law.
    (c) How to obtain access to records. (1) Records of the Board 
subject to this section are available for inspection and copying, in 
response to requests for identifiable records pursuant to Sec. 261.9 of 
this regulation, from 9:00 a.m. to 5:00 p.m. weekdays, at the Office of 
the Board of Governors of the Federal Reserve System, 20th Street and 
Constitution Avenue NW., Washington, DC 20551 (the pedestrian entrance 
is on C Street, NW.). Indexes of Board actions and copies of selected 
Board records are available in the Freedom of Information Office for 
immediate inspection without a request or other prior arrangements.
    (2) The Board may determine that certain classes of publicly 
available filings shall be made available for inspection and copying 
only at the Federal Reserve Bank where those records are filed.
    (3) The publicly available portions of Reports of Condition and 
Income of individual banks, as well as certain other data files produced 
by the Board, are distributed by the National Technical Information 
Service. Requests for these public reports should be addressed to:

Sales Office,
National Technical Information Service,
U.S. Department of Commerce,
285 Port Royal Road,
Springfield, VA 22161,
(703) 487-4650.



Sec. 261.7  Deferred availability of certain information.

    (a) Information subject to deferred availability. Certain types of 
information may not be published in the Federal Register or made 
available for inspection and copying until after a period of time the 
Board determines to be reasonably necessary to avoid the effects 
described in paragraph (b) of this section.
    (b) Reasons for deferred availability. Information may be subject to 
deferred availability or deferred publication because earlier disclosure 
would likely:
    (1) Interfere with accomplishing the objectives of the Board in the 
discharge of its statutory functions;
    (2) Interfere with the orderly conduct of the foreign affairs of the 
United States;
    (3) Permit speculators or others to gain unfair profits or other 
unfair advantages by speculative trading in securities or otherwise;
    (4) Result in unnecessary or unwarranted disturbances in the 
securities markets;
    (5) Interfere with the orderly execuction of the objectives or 
policies of other government agencies; or
    (6) Impair the ability to negotiate any contract or otherwise harm 
the commercial or financial interests of the United States, the Board, 
any Federal Reserve Bank, or any department or agency of the United 
States.



Sec. 261.8  Exemptions from disclosure.

    (a) Types of information or records that are exempt from disclosure. 
The following records and information of the Board are exempt from 
disclosure under this regulation:
    (1) National defense. Any information or record that is specifically 
authorized under criteria established by an Executive order to be kept 
secret in the interest of national defense or foreign policy and is in 
fact properly classified pursuant to such Executive order.
    (2) Examination, inspection, operating, or condition reports, and 
confidential supervisory information. (i) Any matter that is contained 
in or related to confidential supervisory information prepared by, on 
behalf of, or for the use of the Board, any Federal Reserve Bank, or any 
Federal or state financial institution supervisory agency that deems 
such documents or information confidential.
    (ii) The Board may, however, determine that certain kinds of 
operating or condition reports may, for reasons of policy, be routinely 
disclosed to the public upon request. In such case, no special 
authorization shall be required for disclosure of the reports by members 
of the Board's staff or by staff of

[[Page 637]]

the Reserve Banks; and there shall be no limitation on the use of the 
reports by members of the public receiving them.
    (3) Trade secrets; commercial or financial information. (i) Any 
matter that is a trade secret or that constitutes commercial or 
financial information obtained from a person and that is privileged or 
confidential.
    (ii) The Board may, however, make any information furnished in 
confidence in connection with an application for Board approval of a 
transaction available to the public in accordance with Sec. 261.6 of 
this regulation, and without prior notice and to the extent it deems 
necessary, may comment on such information in any opinion or statement 
issued to the public in connection with a Board action to which such 
information pertains.
    (4) Records or information compiled for law enforcement purposes. 
Any records or information compiled for law enforcement purposes, to the 
extent permitted under 5 U.S.C. 552(b)(7), including information 
relating to proceedings for:
    (i) Issuing cease-and-desist orders, suspension or removal orders, 
or other orders or actions under the Financial Institutions Supervisory 
Act of 1966, as amended, the Bank Holding Company Act of 1956, as 
amended, or the Federal Reserve Act of 1913, as amended;
    (ii) Terminating membership of an institution in the Federal Reserve 
System under section 9 of the Federal Reserve Act (12 U.S.C. 327);
    (iii) Suspending a depository institution from use of the credit 
facilities of the Federal Reserve System under section 4 of the Federal 
Reserve Act (12 U.S.C. 301); or
    (iv) Granting or revoking any approval, permission, or authority, 
except to the extent provided in this regulation and part 262 of this 
chapter concerning bank holding company and bank merger applications.
    (5) Internal personnel rules and practices. Any information related 
solely to the internal personnel rules and practices of the Board, 
within the meaning of 5 U.S.C. 552(b)(2).
    (6) Personnel and medical files. Any information contained in 
personnel and medical files and similar files the disclosure of which 
constitute a clearly unwarranted invasion of personal privacy.
    (7) Inter- or intra-agency memorandums or letters. Any matter 
contained in inter- or intra-agency memorandums or letters that would 
not be routinely available by law to a party (other than an agency) in 
litigation with an agency, including but not limited to:
    (i) Memorandums;
    (ii) Reports;
    (iii) Other documents prepared by the staffs of the Board or Federal 
Reserve Banks; and
    (iv) Records of deliberations of the Board and of discussions at 
meetings of the Board, any Board committee, or Board staff, that are not 
subject to 5 U.S.C. 552b.
    (8) Court order prohibitions. Any document or information that is 
covered by an order of a court of competent jurisdiction that prohibits 
its disclosure.
    (9) Statutory exemption. Any information specifically exempted from 
disclosure by statute (other than 5 U.S.C. 552b), if the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (b) Segregation of nonexempt information--(1) Partial release. The 
Board shall provide any reasonably segregable portion of a record that 
is requested after deleting those portions that are exempt under this 
section. In determining whether exempt information is reasonably 
segregable, the Board shall consider all relevant factors, including but 
not limited to:
    (i) The amount and placement of nonexempt information in relation to 
the structure and size of the document: and
    (ii) The intelligibility and usefulness of the nonexempt information 
that is segregated balanced against the administrative burden and cost 
of segregation.
    (2) Reasonably segregable portions. Subject to these considerations, 
reasonably segregable nonexempt portions of a document are those 
nonexempt portions:

[[Page 638]]

    (i) Whose meaning is not distorted by deletion;
    (ii) That are sufficiently detailed to be intelligible and useful to 
the requester; and
    (iii) From which a skillful and knowledgeable person could not 
reconstruct any exempt information.
    (3) Computer tapes. Information stored on computer tape that can be 
segregated only by creating a new retrieval program is not considered 
reasonably segregable.
    (c) Prohibition against disclosure. Except as provided in this 
regulation, no officer, employee, or agent of the Board or any Federal 
Reserve Bank shall disclose or permit the disclosure of any unpublished 
information of the Board to any person (other than Board or Reserve Bank 
officers, employees, or agents properly entitled to such information for 
the performance of official duties), whether by giving out or furnishing 
the information or a copy of it or by allowing any person to inspect or 
copy it, or otherwise.



Sec. 261.9  Procedures for making requests for identifiable records; processing of requests; review of denial of request; time extensions.

    (a) Procedures for making request for records--(1) Contents of 
request. A request for identifiable records shall reasonably describe 
the records to which access is sought in a way that enables the Board's 
staff to identify and produce the records with reasonable effort and 
without unduly burdening or disrupting any of the Board's operations. 
The request shall be submitted in writing to the Secretary of the Board, 
and the envelope clearly marked ``Freedom of Information Act Request.'' 
The request shall contain the following information:
    (i) The name and address of the person filing the request, and the 
telephone number at which the requester can be reached during normal 
business hours;
    (ii) The name of any pending litigation to which the request 
relates, the court, and its location;
    (iii) Whether the requested information is intended for commercial 
use, and whether the requester is an educational or noncommercial 
scientific institution, or news media representative; and
    (iv) A statement agreeing to pay the applicable fees; or a statement 
identifying any fee limitation desired; or a request for a waiver or 
reduction of fees that satisfies Sec. 261.10(h) of this regulation.
    (2) Defective requests. (i) The Board need not accept or process a 
request that is not a request for identifiable records or that:
    (A) Can be complied with only by designing an information retrieval 
system; or
    (B) Does not otherwise comply with the requirements of paragraph 
(a)(1) of this section.
    (ii) The Board may return a defective request, specifying the 
deficiency. The requester may submit a corrected request which shall be 
treated as a new request.
    (3) Oral requests. The Board may honor an oral request for records, 
but if the requester is dissatisfied with the Board's response and 
wishes to seek review, the requester must submit a written request, 
which shall be treated as an initial request.
    (4) Advance payment of fees. Whenever the Board requires advance 
payment of any fee pursuant to Sec. 261.10(g) of this regulation, the 
requester shall promptly remit the required advance payment to the Board 
as a condition to further processing of the request.
    (b) Procedures for responding to requests--(1) Time limits. In 
response to any request that satisfies paragraph (a) of this section, 
the Board shall, if necessary, cause an appropriate search to be 
conducted of records of the Board in existence on the date of receipt of 
the request, and shall determine within ten working days of receipt of 
the request whether to comply with the request, unless the running of 
such time is suspended for payment of fees pursuant to Sec. 261.10(g)(3) 
of this regulation, or such period is extended, pursuant to paragraph 
(e) of this section or Sec. 261.7 of this regulation. The date of 
receipt for any request, including one that is addressed incorrectly or 
that is referred to the Board by another agency or by a Federal Reserve 
Bank, is the date the Office of the Secretary actually receives it.

[[Page 639]]

    (2) Response to request. The Board shall, within the time period 
specified in paragraph (b)(1) of this section, notify the requester of:
    (i) The Board's determination of the request;
    (ii) The reasons for the determination;
    (iii) The right of the requester to appeal to the Board any denial 
or partial denial, as specified in paragraph (d) of this section; and
    (iv) In the case of a denial of a request, the name and title or 
position of the person responsible for the denial.
    (3) Refusal to acknowledge records. If a request covers records or 
types of records whose existence is confidential, such as records of 
reforcement actions against identifiable financial institutions, the 
Board may advise the requester that it can neither confirm nor deny the 
existence of the requested records and notify the requester of the legal 
basis for that determination.
    (4) Priority of responses. The Secretary will assign responsible 
staff to particular requests and will normally process requests in the 
order they are received. However, in the Secretary's discretion, or upon 
a court order in a matter to which the Board is a party, a particular 
request may be processed out of turn.
    (5) Referrals. To the extent a request covers documents that were 
created by, obtained from, or classified by another agency, the Board 
may refer the request to that agency for a response and inform the 
requester promptly of the referral.
    (c) Procedures for copying and review of records; number of copies; 
method of duplication--(1) Request for copies. When a requester asks 
that documents be copied, copies shall be made at the fee established, 
as provided in Sec. 261.10 of this regulation. Copies shall be sent to 
the requester by regular U.S. mail to the address indicated in the 
request, unless the requester elects to take delivery of the documents 
at the Board's Freedom of Information Office in Washington, DC, or makes 
other arrangements acceptable to the Board.
    (2) Number of copies; method of duplication. The Board need not 
provide more than one copy of any record to any requester, and the Board 
may select the form of the copy provided, such as paper, microform, or 
other medium.
    (3) Request to review documents. Requesters may review documents at 
the Board's Freedom of Information Office under staff supervision. 
Requesters may not disassemble or alter any record or file being 
inspected.
    (d) Appeal of denial of request for records--(1) Request for review; 
time limits. Any person denied access to Board records requested in 
accordance with this section may file with the Board a written request 
for review of the denial by the Board or Board member(s) designated to 
hear such appeal. The request shall be filed within ten working days of 
the date on which the denial was issued, or, where a request for 
documents has been partially approved but access to the documents has 
not been given, within ten working days from the date such documents are 
transmitted to the requester. The request shall prominently display the 
word ``Appeal'' on the first page. An initial request for records may 
not be combined in the same letter with an appeal.
    (2) Untimely appeals. The Board may consider an untimely appeal if:
    (i) It is accompanied by a written request for leave to file an 
untimely appeal; and
    (ii) The Board or designated Board member(s) determines, in its 
discretion and for good and substantial cause shown, that the appeal 
should be considered.
    (3) Decision on appeal; time limits. The Board or designated Board 
member(s) shall make a determination with respect to any appeal within 
20 working days of actual receipt of the appeal by the Secretary and 
shall immediately notify the appealing party of the determination and 
the right to seek judicial review if the determination upholds, in whole 
or in part, the denial of the request for records. Such determination is 
not subject to review under Sec. 265.3 of this chapter which provides 
for review of actions taken under delegated authority.
    (4) Mootness of appeal. (i) The Board, a Board member, or a staff 
person designated by the Chairman may declare an appeal wholly or 
partially moot and instruct the Secretary of the Board to

[[Page 640]]

reconsider the previous denial or to release the requested documents, 
where a determination is made that intervening circumstances or 
additional facts not known at the time of denial have or may have 
eliminated any need or justification for withholding the requested 
documents.
    (ii) The Secretary may reconsider a denial being appealed if such 
intervening circumstances or additional facts come to the attention of 
the Secretary while an appeal is pending.
    (e) Time extensions in unusual circumstances; failure to comply with 
time limits--(1) Time extensions. In unusual circumstances, as defined 
in 5 U.S.C. 552(a)(6), the time limits specified in paragraph (b)(1) and 
paragraph (d)(3) of this section may be extended for a period of time 
not to exceed 10 working days by written notice to the requester setting 
forth the reasons for the extension and the date on which a 
determination is expected to be dispatched. The extension of time may be 
divided between the initial and appellate reviews but the total 
extensions relating to any request and resulting appeal may not exceed 
10 working days.
    (2) Failure to comply with time limits. If the Board fails to comply 
with the time limits and extensions specified in this section, the Board 
or other responsible Board employee shall, where practicable, give 
notice to the requester, stating the reasons for the delay and the date 
by which the Board expects to dispatch its determination. Without 
prejudice to the legal remedies provided the requester in 5 U.S.C. 552, 
the Board shall continue processing the request as quickly as possible 
and shall dispatch its determination when reached in the same manner as 
if it had been reached within the applicable time limits.



Sec. 261.10  Fee schedules; waiver of fees.

    (a) Fee schedules. Records of the Board available for public 
inspection and copying are subject to a written Schedule of Fees for 
search, review, and duplication. (See appendix A for Schedule of Fees.) 
The fees set forth in the Schedule of Fees reflect the full allowable 
direct costs of search, duplication, and review, and may be adjusted 
from time to time by the Secretary to reflect changes in direct costs.
    (b) Fees charged. The fees charged only cover the full allowable 
direct costs of search, duplication, or review.
    (1) Direct costs mean those expenditures which the Board actually 
incurs in searching for and duplicating (and in the case of commercial 
requesters, reviewing) documents to respond to a request made under 
Sec. 261.9 of this regulation. Direct costs include, for example, the 
salary of the employee performing work (the basic rate of pay for the 
employee plus a factor to cover benefits) and the cost of operating 
duplicating machinery. Not included in direct costs are overhead 
expenses such as costs of space, and heating or lighting the facility in 
which the records are stored.
    (2) Duplication refers to the process of making a copy of a document 
necessary to respond to a request for disclosure of records, or for 
inspection of original records that contain exempt material or that 
otherwise cannot be inspected directly. Such copies may take the form of 
paper copy, microform, audio-visual materials, or machine readable 
documentation (e.g., magnetic tape or disk), among others.
    (3) Review refers to the process of examining documents located in 
response to a request that is for a commercial use to determine whether 
any portion of any document located is permitted to be withheld. It also 
includes processing any documents for disclosure, e.g., doing all that 
is necessary to excise them and otherwise prepare them for release. 
Review does not include time spent resolving general legal or policy 
issues regarding the application of exemptions.
    (c) Commercial use. (1) The fees in the Schedule of Fees for 
document search, duplication, and review apply when records are 
requested for commercial use.
    (2) Commercial use request refers to a request from or on behalf of 
one who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person on 
whose behalf the request is made.
    (3) In determining whether a requester properly belongs in this 
category, the Secretary shall look first to

[[Page 641]]

the use to which a requester will put the documents requested. Where a 
requester does not explain its purpose, or where its explanation is 
insufficient, the Secretary may seek additional clarification from the 
requester before categorizing the request as one for commercial use.
    (d) Educational, research, or media use. (1) Only the fees in the 
Schedule of Fees for document duplication apply when records are not 
sought for commercial use and the requester is a representative of the 
news media, or an educational or noncommercial scientific institution, 
whose purpose is scholarly or scientific research. However, there is no 
charge for the first one hundred pages of duplication.
    (2) Educational institution refers to a preschool, a public or 
private elementary or secondary school, or an institution of 
undergraduate higher education, graduate higher education, professional 
education, or an institution of vocational education which operates a 
program of scholarly research.
    (3) Noncommercial scientific institution refers to an institution 
that is not operated on a commercial basis (as that term is used in 
paragraph (c) of this section) and which is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry.
    (4) Representative of the news media refers to any person that is 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities include, but are not limited to, 
television or radio stations broadcasting to the public at large, and 
publishers of periodicals (but only in those instances when they can 
qualify as disseminators of news) who make their products available for 
purchase or subscription by the general public. ``Freelance'' 
journalists may be regarded as working for a news organization if they 
can demonstrate a solid basis for expecting publication through that 
organization, even though not actually employed by it.
    (e) Other uses. For all other requests, the fees in the Schedule of 
Fees for document search and duplication apply. However, there is no 
charge for the first one hundred pages of duplication or the first two 
hours of search time.
    (f) Aggregated requests. If the Secretary reasonably believes that a 
requester or group of requesters is attempting to break down a request 
into a series of requests, each seeking portions of a document or 
documents solely for the purpose of avoiding the assessment of fees, the 
Secretary may aggregate such requests and charge accordingly. It is 
considered reasonable for the Secretary to presume that multiple 
requests of this type made within a 30-day period have been made to 
avoid fees.
    (g) Payment procedures--(1) Fee payment. The Secretary may assume 
that a person requesting records pursuant to Sec. 261.9 of this 
regulation will pay the applicable fees, unless a request includes a 
limitation on fees to be paid or seeks a waiver or reduction of fees 
pursuant to paragraph (h) of this section.
    (2) Advance notification. If the Secretary estimates that charges 
are likely to exceed $25, the requester shall be notified of the 
estimated amount of fees, unless the requester has indicated in advance 
willingness to pay fees as high as those anticipated. Upon receipt of 
such notice the requester may confer with the Secretary as to the 
possibility of reformulating the request in order to lower the costs.
    (3) Advance payment. (i) The Secretary may require advance payment 
of any fee estimated to exceed $250. The Secretary may also require full 
payment in advance where a requester has previously failed to pay a fee 
in a timely fashion.
    (ii) For purposes of computing the time period for responding to 
requests under Sec. 261.9(b) of this regulation, the running of the time 
period will begin only after the Secretary receives the required 
payment.
    (4) Late charges. The Secretary may assess interest charges when a 
fee is not paid within 30 days of the date on which the billing was 
sent. Interest will be at the rate prescribed in section 3717 of Title 
31 U.S.C.A. and will accrue

[[Page 642]]

from the date of the billing. This rate of interest is published by the 
Secretary of the Treasury before November 1 each year and is equal to 
the average investment rate for Treasury tax and loan accounts for the 
12-month period ending on September 30 of each year. The rate is 
effective on the first day of the next calendar quarter after 
publication.
    (5) Fees for nonproductive search. Fees for record searches and 
review may be charged even if no responsive documents are located or if 
the request is denied, particularly if the requester insists upon a 
search after being informed that it is likely to be nonproductive or 
that any records found are likely to be exempt from disclosure. The 
Secretary shall apply the standards set out in paragraph (h) of this 
section in determining whether to waive or reduce fees.
    (h) Waiver or reduction of fees--(1) Standards for determining 
waiver or reduction. The Secretary or his or her designee shall grant a 
waiver or reduction of fees chargeable under paragraph (b) of this 
section where it is determined both that disclosure of the information 
is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities of 
the government, and that the disclosure of information is not primarily 
in the commercial interest of the requester. The Secretary or his or her 
designee shall also waive fees that are less than the average cost of 
collecting fees. In determining whether disclosure is in the public 
interest, the following factors shall be considered:
    (i) Whether the subject of the requested records concerns the 
operations or activities of the government;
    (ii) Whether the disclosure is likely to contribute to an 
understanding of government operations or activities;
    (iii) Whether disclosure of the requested information will 
contribute to public understanding;
    (iv) Whether the disclosure is likely to contribute significantly to 
public understanding of government operations or activities;
    (v) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and, if so,
    (vi) Whether the magnitude of the identified commercial interest of 
the requester is sufficiently large, in comparison with the public 
interest in disclosure, that disclosure is primarily in the commercial 
interest of the requester.
    (2) Contents of request for waiver. The Secretary shall normally 
deny a request for a waiver of fees that does not include:
    (i) A clear statement of the requester's interest in the requested 
documents;
    (ii) The use proposed for the documents and whether the requester 
will derive income or other benefit from such use;
    (iii) A statement of how the public will benefit from such use and 
from the Board's release of the requested documents; and
    (iv) If specialized use of the documents or information is 
contemplated, a statement of the requester's qualifications that are 
relevant to the specialized use.
    (3) Burden of proof. In all cases the burden shall be on the 
requester to present evidence or information in support of a request for 
a waiver or reduction of fees.
    (4) Employee requests. In connection with any request by an 
employee, former employee, or applicant for employment, for records for 
use in prosecuting a grievance or complaint of discrimination against 
the Board, fees shall be waived where the total charges (including 
charges for information provided under the Privacy Act of 1974 (5 U.S.C. 
552a)) are $50 or less; but the Secretary may waive fees in excess of 
that amount.

     Appendix A to Sec.  261.10--Freedom of Information Fee Schedule    
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
Duplication:                                                            
    Photocopy, per standard page...........................         $.10
    Paper copies of microfiche, per frame..................          .10
    Duplicate microfiche, per microfiche...................          .35

[[Page 643]]

                                                                        
Search and review:                                                      
    Clerical/Technical, hourly rate........................        20.00
    Professional/Supervisory, hourly rate..................        38.00
    Manager/Senior Professional, hourly rate...............        65.00
Computer search and production:                                         
    Computer operator search, hourly rate..................        32.00
    Tapes (cassette) per tape..............................         6.00
    Tapes (cartridge), per tape............................         9.00
    Tapes (reel), per tape.................................        18.00
    Diskettes (3\1/2\''), per diskette.....................         4.00
    Diskettes (5\1/4\''), per diskette.....................         5.00
    Computer Output (PC), per minute.......................          .10
    Computer Output (mainframe)............................       (\1\) 
------------------------------------------------------------------------
\1\ Actual cost.                                                        

                            Special Services

    The Secretary of the Board may agree to provide, and set fees to 
recover the costs of, special services not covered by the Freedom of 
Information Act, such as certifying records or information and sending 
records by special methods such as express mail. The Secretary may 
provide self-service photocopy machines and microfiche printers as a 
convenience to requesters.

                               Fee Waivers

    For qualifying educational and noncommercial scientific institution 
requesters and representatives of the news media, the Board will not 
assess fees for review time, for the first 100 pages of reproduction, 
or, when the records sought are reasonably described, for search time. 
For other noncommercial use requests, no fees will be assessed for 
review time, for the first 100 pages of reproduction, or for the first 
two hours of search time. For requesters qualifying for 100 free pages 
of reproduction, the fees for duplicate microfiche will be prorated to 
eliminate the charge for 100 frames.
    The Board will waive in full fees that total less than $5.
    The Secretary of the Board or his or her designee will also waive or 
reduce fees, upon proper request, if disclosure of the information is in 
the public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester. A fee 
reduction is available to employees, and applicants for employment who 
request records for use in prosecuting a grievance or complaint against 
the Board.

[53 FR 20815, June 7, 1988, as amended at 55 FR 49877, Dec. 3, 1990; 61 
FR 60014, Nov. 26, 1996]



    Subpart C--Confidential Information Made Available to Supervised 
     Institutions, Financial Institution Supervisory Agencies, Law 
        Enforcement Agencies, and Others in Certain Circumstances



Sec. 261.11  Confidential supervisory information made available to supervised financial institutions and financial institution supervisory agencies.

    (a) Disclosure of confidential supervisory information to supervised 
financial institutions. Confidential supervisory information concerning 
a supervised bank, bank holding company (including subsidiaries), U.S. 
branch or agency of a foreign bank, or other institution examined by the 
Federal Reserve System (``supervised financial institution'') may be 
made available by the Board or the appropriate Federal Reserve Bank to 
the supervised financial institution.
    (b) Disclosure of confidential supervisory information by supervised 
financial institution--(1) Parent bank holding company, directors, 
officers, and employees. Any supervised financial institution lawfully 
in possession of confidential supervisory information of the Board 
pursuant to this section may disclose such information, or portions 
thereof, to its directors, officers, and employees, and to its parent 
bank holding company and its directors, officers, and employees.
    (2) Certified public accountants and legal counsel. Any supervised 
financial institution lawfully in possession of confidential supervisory 
information of

[[Page 644]]

the Board pursuant to this section may disclose such information, or 
portions thereof, to any certified public accountant or legal counsel 
employed by the supervised financial institution, subject to the 
following conditions:
    (i) Certified public accountants or legal counsel shall review the 
confidential supervisory information only on the premises of the 
supervised financial institution, and shall not make or retain any 
copies of such information;
    (ii) The certified public accountants or legal counsel shall not 
disclose the confidential supervisory information for any purpose 
without the prior written approval of the Board's General Counsel except 
as necessary to provide advice to the supervised financial institution, 
its parent bank holding company, or the officers, directors, and 
employees of such supervised financial institution and parent bank 
holding company.
    (c) Disclosure upon request to Federal financial institution 
supervisory agencies. Upon requests, the Director of the Division of 
Banking Supervision and Regulation or the appropriate Federal Reserve 
Bank, may make available to the Comptroller of the Currency, the Federal 
Deposit Insurance Corporation, and the Federal Home Loan Bank Board and 
their regional offices and representatives, confidential supervisory 
information and other appropriate information (such as confidential 
operating and condition reports) relating to a bank, bank holding 
company (including subsidiaries), U.S. branch or agency of a foreign 
bank, or other supervised financial institution.
    (d) Disclosure upon request to state financial institution 
supervisory agencies. Upon requests, the Director of the Division of 
Banking Supervision and Regulation or the appropriate Federal Reserve 
Bank may make available confidential supervisory information and other 
appropriate information (such as confidential operating and condition 
reports) relating to a bank, bank holding company (including 
subsidiaries), U.S. branch or agency of a foreign bank, or other 
supervised financial institution to:
    (1) A state financial institution supervisory agency having direct 
supervisory authority over such supervised financial institution; or
    (2) A state financial institution supervisory agency not having 
direct supervisory authority over such supervised financial institution 
if the requesting agency has entered into an information sharing 
agreement with the appropriate Federal Reserve Bank and the information 
to be provided concerns a supervised financial institution that has 
acquired or has applied to acquire a financial institution subject to 
that agency's direct supervisory authority.
    (e) Discretionary disclosures. The Board may determine, from time to 
time, to authorize other disclosures of confidential information as 
necessary.
    (f) Conditions and limitations. The Board may impose any conditions 
or limitations on disclosure under this section that it determines are 
necessary to effect the purposes of this regulation.
    (g) Other disclosure prohibited. All confidential supervisory 
information or other information made available under this section shall 
remain the property of the Board. No supervised financial institution, 
financial institution supervisory agency, person, or any other party to 
whom the information is made available, or any other officer, director, 
employee or agent thereof, may disclose such information without the 
prior written permission of the Board's General Counsel except in 
published statistical material that does not disclose, either directly 
or when used in conjunction with publicly available information, the 
affairs of any individual, corporation, or other entity. No person 
obtaining access to confidential supervisory information pursuant to 
this section may make a personal copy of any such information; and no 
person may remove confidential supervisory information from the premises 
of the institution or agency in possession of such information except as 
permitted by specific language in this regulation or by the Board.
    (h) Disclosure of Foreign Bank Confidential Report of Operations--
(1) Availability of Foreign Bank Confidential Report of Operations to 
Bank Supervisory Agencies. Notwithstanding any other

[[Page 645]]

provision of this regulation, any Confidential Report of Operations 
(Form F.R. 2068) of a foreign banking organization may, upon written 
request to and approval by the Director of the Division of Banking 
Supervision and Regulation (or his delegee), and with the concurrence of 
the General Counsel (or his delegee), be made available for inspection 
to another bank supervisory authority having general supervision of any 
United States branch, agency, subsidiary bank or commercial lending 
company of the foreign banking organization, only for use where 
necessary in the performance of official duties. These reports shall be 
made available for inspection by authorized persons only on Federal 
Reserve premises under the same procedures as apply to personnel of the 
Federal Reserve System. All reports made available under this paragraph 
shall remain the property of the Board; and no person, agency or 
authority who obtains access to any such report, or any officer, 
director, or employee thereof, shall publish, publicize, or otherwise 
disclose any information contained in the report to any person.
    (2) Restrictions on disclosure by Federal Reserve System employees. 
It is the Board's policy that the confidentiality of a foreign banking 
organization's Confidential Report of Operations (Form F.R. 2068) should 
be maintained at all times. Except as provided by paragraph (h)(1) of 
this section, information submitted to the Board as part of any 
Confidential Report of Operations is not available for public inspection 
by any person other than an officer, employee, or agent of the Board or 
of a Federal Reserve Bank properly entitled to such information in the 
performance of such person's official duties. Any employee that violates 
this section by releasing such a report to any unauthorized person may 
be subject to disciplinary action under 12 CFR 264.735-5 (Rules of 
Employee Responsibilities and Conduct).



Sec. 261.12  Confidential information made available to law enforcement agencies and other nonfinancial institution supervisory agencies.

    (a) Disclosure upon request. Upon written request, the Board may 
make available to appropriate law enforcement agencies and to other 
nonfinancial institution supervisory agencies for use where necessary in 
the performance of official duties, reports of examination and 
inspection, confidential supervisory information, and other confidential 
documents and information of the Board concerning banks, bank holding 
companies and their subsidiaries, U.S. branches and agencies of foreign 
banks, and other examined institutions.
    (b) Eligibility. Federal, state, and local law enforcement agencies 
and other nonfinancial institution supervisory agencies may file written 
requests with the Board for access to confidential documents and 
information under this section of the regulation. Properly accredited 
foreign law enforcement agencies and other foreign government agencies 
may also file written requests with the Board.
    (c) Contents of request. To obtain access to confidential documents 
or information under this section of the regulation, the head of the law 
enforcement agency or nonfinancial institution supervisory agency (or 
their designees) shall address a letter request to the Board's General 
Counsel, specifying:
    (1) The particular information, kinds of information, and where 
possible, the particular documents to which access is sought;
    (2) The reasons why such information cannot be obtained from the 
examined institution in question rather than from the Board;
    (3) A statement of the law enforcement purpose or other purpose for 
which the information shall be used;
    (4) Whether the requested disclosure is permitted or restricted in 
any way by applicable law or regulation;
    (5) A commitment that the information requested shall not be 
disclosed to any person outside the agency without the written 
permission of the Board or its General Counsel; and
    (6) If the document or information requested includes customer 
account information subject to the Right to Financial Privacy Act, as 
amended (12 U.S.C. 3401 et seq.), a statement that such customer account 
information need not be provided, or a statement as

[[Page 646]]

to why the Act does not apply to the request, or a certification that 
the requesting agency has complied with the requirements of the Act.
    (d) Action on request. (1) The General Counsel shall review each 
request and may approve the request upon determining that:
    (i) The request complies with this section;
    (ii) The information is needed in connection with a formal 
investigation or other official duties of the requesting agency;
    (iii) Satisfactory assurances of confidentiality have been given; 
and
    (iv) No law prohibits the requested disclosure.
    (2) The General Counsel may impose any conditions or limitations on 
disclosure that the General Counsel determines to be necessary to effect 
the purposes of this regulation or to insure compliance with applicable 
laws or regulations.
    (e) Federal and state grand jury, criminal trial, and government 
administrative subpoenas. The Board's General Counsel shall review and 
may approve the disclosure of confidential information pursuant to 
Federal and state grand jury, criminal trial, and government 
administrative subpoenas. The General Counsel may impose such conditions 
or limitations on disclosure under this section that the General Counsel 
determines are necessary to effect the purposes of this regulation, to 
insure compliance with applicable laws or regulations, or to protect the 
confidentiality of the Board's information.
    (f) Requests for testimony or interviews. Government agencies 
seeking to obtain testimony or interviews from current and former 
Federal Reserve System staff concerning any confidential information of 
the Board shall use the procedures set out in paragraph (c) of this 
section.
    (g) Other disclosure prohibited. All reports and information made 
available under this section remain the property of the Board, and 
except as otherwise provided in this regulation, no person, agency, or 
authority to whom the information is made available, or any officer, 
director, or employee thereof, may disclose any such information except 
in published statistical material that does not disclose, either 
directly or when used in conjunction with publicly available 
information, the affairs of any individual or corporation.



Sec. 261.13  Other disclosure of confidential supervisory information.

    (a) Board policy. It is the Board's policy regarding confidential 
supervisory information that such information is confidential and 
privileged. Accordingly, the Board will not normally disclose this 
information to the public. The Board, when considering a request for 
disclosure of confidential supervisory information under this section, 
will not authorize disclosure unless the person requesting disclosure is 
able to show a substantial need for such information that outweighs the 
need to maintain confidentiality.
    (b) Requests for disclosure--(1) Requests from litigants for 
information or testimony. Any person (except agencies identified in 
Secs. 261.11 and 261.12 of this regulation) seeking access to 
confidential supervisory information or seeking to obtain the testimony 
of present or former Board or Reserve Bank employees on matters 
involving confidential supervisory information of the Board, whether by 
deposition or otherwise, for use in litigation before a court, board, 
commission, or agency, shall file a written request with the General 
Counsel of the Board. The request shall describe:
    (i) The particular information, kinds of information, and where 
possible, the particular documents to which access is sought;
    (ii) The judicial or administrative action for which the 
confidential supervisory information is sought;
    (iii) The relationship of the confidential supervisory information 
to the issues or matters raised by the judicial or administrative 
action;
    (iv) The requesting person's need for the information;
    (v) The reason why the requesting person cannot obtain the 
information sought from any other source; and
    (vi) A commitment to obtain a protective order acceptable to the 
Board from the judicial or administrative tribunal hearing the action 
preserving the confidentiality of any information that is provided.

[[Page 647]]

    (2) All other requests. Any other person (except agencies identified 
in Secs. 261.11 and 261.12 of this regulation) seeking access to 
confidential supervisory information for any other purpose shall file a 
written request with the General Counsel of the Board. A request under 
this paragraph (b)(2) shall describe the purpose for which such 
disclosure is sought.
    (c) Action on request--(1) Determination of approval. The General 
Counsel of the Board may approve a request made under this section 
provided that he or she determines that:
    (i) The person making the request has shown a substantial need for 
confidential supervisory information that outweighs the need to maintain 
confidentiality; and
    (ii) Disclosure is consistent with the supervisory and regulatory 
responsibilities and policies of the Board.
    (2) Conditions or limitations. The General Counsel of the Board may, 
in approving a request, impose such conditions or limitations on use of 
any information disclosed as is deemed necessary to protect the 
confidentiality of the Board's information.
    (d) Exhaustion of administrative remedies for discovery purposes in 
civil, criminal, or administrative action. Action on a request under 
this section by the General Counsel of the Board shall exhaust 
administrative remedies for discovery purposes in any civil, criminal, 
or administrative proceeding. A request made pursuant to Sec. 261.9 of 
this regulation does not exhaust administrative remedies for discovery 
purposes. Therefore, it is not necessary to file a request pursuant to 
Sec. 261.9 to exhaust administrative remedies under this section.
    (e) Other disclosure prohibited. All confidential supervisory 
information made available under this section shall remain the property 
of the Board. Any person in possession of such information shall not use 
or disclose such information for any purpose other than that authorized 
by the General Counsel of the Board without his or her prior written 
approval.



Sec. 261.14  Subpoenas, orders compelling production, and other process.

    (a) Advice by person served. Any person (including any officers, 
employee, or agent of the Board or any Federal Reserve Bank) who has 
documents or information of the Board that may not be disclosed and who 
is served with a subpoena, order, or other judicial or administrative 
process requiring his or her personal attendance as a witness or 
requiring the production of documents or information in any proceeding, 
shall:
    (1) Promptly inform the Board's General Counsel of the service and 
all relevant facts, including the documents and information requested, 
and any facts of assistance to the Board in determining whether the 
material requested should be made available; and
    (2) At the appropriate time inform the court or tribunal that issued 
the process and the attorney for the party at whose instance the process 
was issued of the substance of these rules.
    (b) Appearance by person served. Unless the Board has authorized 
disclosure of the information requested, any person who has Board 
information that may not be disclosed, and who is required to respond to 
a subpoena or other legal process, shall attend at the time and place 
required and decline to disclose or to give any testimony with respect 
to the information, basing such refusal upon the provisions of this 
regulation. If the court or other body orders the disclosure of the 
information or the giving of testimony, the person having the 
information shall continue to decline to disclose the information and 
shall promptly report the facts to the Board for such action as the 
Board may deem appropriate.



             Subpart D--Requests for Confidential Treatment



Sec. 261.15  Scope of subpart.

    (a) Data collection forms. This subpart does not apply to data 
collected by the Board on forms that are approved pursuant to the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq) and are deemed 
confidential by the Board. Any such form deemed confidential by the 
Board

[[Page 648]]

shall contain language so indicating on the face of the form or in its 
instructions. Such information may, however, be disclosed in aggregate 
form in such a manner that individual company data is not disclosed or 
derivable.
    (b) Duty to submit information. This subpart does not modify in any 
manner the obligation of any person or company to submit, pursuant to 
any law or regulation, any document, information, form, or other filing 
to the Board or any Federal Reserve Bank.
    (c) Public comments. (1) Any comments submitted by a member of the 
public on applications and regulatory proposals being considered by the 
Board are public unless the Board or the Secretary determines that 
confidential treatment is warranted.
    (2) A request for confidential treatment of such comments shall be 
submitted in a separate letter or memorandum accompanying the comments 
and on which the words, ``Request for Confidential Treatment'' are 
prominently displayed. Notwithstanding any other provision of this 
regulation, the Board need not inform any person submitting such 
comments of a decision not to afford confidential treatment to the 
comments.



Sec. 261.16  Submission and form of request for confidential treatment; action on request.

    (a) Submission of request. Any submitter of documents or information 
to the Board who desires that they be afforded confidential treatment 
pursuant to 5 U.S.C 552(b)(4) shall file a request for confidential 
treatment with the Board (or in the case of documents filed with a 
Federal Reserve Bank, with that Reserve Bank), at the time they are 
submitted or a reasonable time after submission.
    (b) Form of request. Each request for confidential treatment shall 
state in reasonable detail the facts and arguments supporting the 
request and its legal justification. Conclusory statements that 
particular information would be useful to competitors or would impair 
sales, or similar statements, generally will not be considered 
sufficient to justify confidential treatment.
    (c) Designation and separation of confidential material. All 
information considered confidential by a submitter shall be clearly 
designated ``Confidential'' in the submission and clearly separated from 
information for which confidential treatment is not requested.
    (d) Action on request. (1) Requests for confidential treatment of 
any documents shall be considered in connection with any request for 
access to the documents. At their discretion, appropriate Board or staff 
members (including Reserve Bank staff) may act on the request for 
confidentiality prior to any request for access to the documents.
    (2) Any request for confidentiality pursuant to 5 U.S.C. 552(b)(4) 
shall be handled in accordance with Sec. 261.17 of this subpart.
    (3) Nothing in this section limits the Secretary's authority to make 
determinations regarding requests for access to records under 
Sec. 261.9.
    (e) Special procedures. The Board may establish special procedures 
for particular documents, filings, or types of information by express 
provisions in this regulation or by instructions on particular forms 
that are approved by the Board. These special procedures shall take 
precedence over the procedures set out in this subpart.



Sec. 261.17  Confidential commercial or financial information.

    (a) Request for confidential information. (1) The Secretary shall 
notify a submitter of any request for access to all or a portion of 
information provided to the Board by the submitter if:
    (i) The submitter requested confidential treatment of that 
information pursuant to 5 U.S.C. 552(b)(4) (``trade secrets and 
commercial or financial information obtained from a person and 
privileged or confidential''); and
    (ii) The request by the submitter for confidential treatment was 
made within 10 years preceding the date of the request for access.
    (2) Absent a request by a submitter for confidential treatment, the 
Secretary may notify a submitter of a request for access to all or a 
portion of information provided by the submitter

[[Page 649]]

if it appears to the Secretary that disclosure of the information may 
reasonably be expected to cause substantial competitive harm to the 
submitter.
    (b) Notice to submitter. The notice given to the submitter pursuant 
to paragraph (a) of this section shall:
    (1) Where possible, be given within five working days of the receipt 
of the request for access;
    (2) Describe the request;
    (3) Give the submitter a reasonable opportunity, not to exceed ten 
working days, to submit written objections to disclosure of the 
information; and
    (4) If given orally, be promptly confirmed in writing by the 
Secretary.
    (c) Notice to requester. At the same time the Secretary notifies the 
submitter, the Secretary shall also notify the requester that the 
request is subject to the provisions of this section and that the 
submitter is being notified of the request.
    (d) Determination by Secretary. The Secretary's determination 
whether or not to disclose any document for which confidential treatment 
has been requested pursuant to this section shall be communicated to the 
submitter and the requester immediately. If the Secretary determines to 
disclose the document or information and the submitter has objected to 
such disclosure pursuant to paragraph (b) of this section, the Secretary 
shall provide the submitter with the reasons for disclosure, and shall 
delay release of the document or information for ten working days 
following the date of the determination.
    (e) Exceptions to notice to submitter. Notice to the submitter need 
not be given if:
    (1) The Secretary determines, prior to giving such notice, that the 
request for access should be denied;
    (2) The requested information lawfully has been published or 
otherwise made available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The submitter's claim of confidentiality under 5 U.S.C. 
552(b)(4) appears obviously frivolous or has already been denied by the 
Secretary, except that in this last instance the Secretary shall give 
the submitter written notice of the determination to disclose the 
information at least five working days prior to release.
    (f) Notice of lawsuit. (1) The Secretary shall promptly notify any 
submitter of information or documents covered by this section of the 
filing of any suit against the Board pursuant to 5 U.S.C. 552 to compel 
disclosure of such documents or information.
    (2) The Secretary shall promptly notify the requester of any suit 
filed against the Board to enjoin the disclosure of any documents 
requested by the requester.
    (g) Exception for Board rulings. Nothing in this section shall apply 
in connection with any determination by the Board to comment upon 
information submitted to the Board in any opinion or statement issued to 
the public as described in Sec. 261.8 of this regulation.



PART 261a--RULES REGARDING ACCESS TO PERSONAL INFORMATION UNDER THE PRIVACY ACT OF 1974--Table of Contents




                      Subpart A--General Provisions

Sec.
261a.1  Authority, purpose and scope.
261a.2  Definitions.
261a.3  Custodian of records; delegations of authority.
261a.4  Fees.

Subpart B--Procedures for Requests by Individual to Whom Record Pertains

261a.5  Request for access to record.
261a.6  Board procedures for responding to request for access.
261a.7  Special procedures for medical records.
261a.8  Request for amendment to record.
261a.9  Agency review of request for amendment of record.
261a.10  Appeal of adverse determination of request for access or 
          amendment.

  Subpart C--Disclosure to Person Other than Individual to Whom Record 
                                Pertains

261a.11  Restrictions on disclosure.
261a.12  Exceptions.

                        Subpart D--Exempt Records

Sec.
261a.13  Exemptions.

    Authority: 5 U.S.C. 552a.

    Source: 60 FR 3341, Jan. 17, 1995, unless otherwise noted.

[[Page 650]]



                      Subpart A--General Provisions



Sec. 261a.1  Authority, purpose and scope.

    (a) Authority. This part is issued by the Board of Governors of the 
Federal Reserve System (the Board) pursuant to the Privacy Act of 1974 
(5 U.S.C. 552a).
    (b) Purpose. The purpose of this part is to implement the provisions 
of the Privacy Act of 1974 (5 U.S.C. 552a) with regard to the 
maintenance, protection, disclosure, and amendment of records contained 
within systems of records maintained by the Board.
    (c) Scope. This part covers requests for access to, or amendment of, 
records concerning individuals that are contained in systems of records 
maintained by the Board.



Sec. 261a.2  Definitions.

    For the purposes of this part, the following definitions apply:
    (a) Business day means any day except Saturday, Sunday or a legal 
Federal holiday.
    (b) Designated system of records means a system of records 
maintained by the Board that has been listed in the Federal Register 
pursuant to the requirements of 5 U.S.C. 552a(e).
    (c) Guardian means the parent of a minor, or the legal guardian of 
any individual who has been declared to be incompetent due to physical 
or mental incapacity or age by a court of competent jurisdiction.
    (d) Individual means a natural person who is either a citizen of the 
United States or an alien lawfully admitted for permanent residence.
    (e) Maintain includes maintain, collect, use, disseminate, or 
control.
    (f) Record means any item, collection, or grouping of information 
about an individual maintained by the Board that contains the 
individual's name, or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a 
fingerprint, voice print, or photograph.
    (g) Routine use means, with respect to disclosure of a record, the 
use of such record for a purpose that is compatible with the purpose for 
which it was collected or created.
    (h) System of records means a group of any records under the control 
of the Board from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual.



Sec. 261a.3  Custodian of records; delegations of authority.

    (a) Custodian of records. The Secretary of the Board is the official 
custodian of all records of the Board in the possession or control of 
the Board.
    (b) Delegated authority of Secretary. With regard to this 
regulation, the Secretary of the Board is delegated the authority to:
    (1) Respond to requests for access or amendment to records contained 
in a system of records, except for such requests regarding systems of 
records maintained by the Board's Office of the Inspector General (OIG);
    (2) Approve the publication of new systems of records and amend 
existing systems of records, except systems of records exempted pursuant 
to Secs. 261a.13(b), (c) and (d);
    (3) File the biennial reports required by the Privacy Act.
    (c) Delegated authority of designee. Any action or determination 
required or permitted by this part to be done by the Secretary of the 
Board may be done by an Associate Secretary or other responsible 
employee of the Board who has been duly designated for this purpose by 
the Secretary.
    (d) Delegated authority of Inspector General. With regard to systems 
of records maintained by the OIG, the Inspector General is delegated the 
authority to respond to requests for access or amendment.



Sec. 261a.4  Fees.

    (a) Copies of records. Copies of records requested pursuant to 
Sec. 261a.5 of this part shall be provided at the same cost charged for 
duplication of records and/or production of computer output under the 
Board's Rules Regarding Availability of Information, Sec. 261.10 of this 
part.
    (b) No fee. Documents may be furnished without charge where total 
charges are less than $5.
    (c) Waiver of fees. In connection with any request by an employee, 
former

[[Page 651]]

employee, or applicant for employment, for records for use in 
prosecuting a grievance or complaint of discrimination against the 
Board, fees shall be waived where the total charges (including charges 
for information provided under the Freedom of Information Act) are $50 
or less; but the Secretary may waive fees in excess of that amount.



Subpart B--Procedures for Requests by Individual to Whom Record Pertains



Sec. 261a.5  Request for access to record.

    (a) Procedures for making request. (1) Any individual (or guardian 
of an individual) other than a current Board employee desiring to learn 
of the existence of, or to gain access to, his or her record in a 
designated system of records shall submit a request in writing to the 
Secretary of the Board, Board of Governors of the Federal Reserve 
System, 20th and Constitution Avenue NW., Washington, DC 20551.
    (2) A request by a current Board employee for that employee's own 
personnel records may be made in person during regular business hours at 
the Division of Human Resources, Board of Governors of the Federal 
Reserve System, 20th and Constitution Avenue NW., Washington, DC 20551.
    (3) A request by a current Board employee for information other than 
personnel information may be made in person during regular business 
hours at the Freedom of Information Office, Board of Governors of the 
Federal Reserve System, 20th and Constitution Avenue NW., Washington, DC 
20551.
    (4) Requests for information contained in a system of records 
maintained by the Board's OIG shall be submitted in writing to the 
Inspector General, Board of Governors of the Federal Reserve System, 
20th and Constitution Avenue NW., Washington, DC 20551.
    (b) Contents of request. A request made pursuant to paragraph (a) of 
this section shall include the following:
    (1) A statement that it is made pursuant to the Privacy Act of 1974;
    (2) The name of the system of records expected to contain the record 
requested or a concise description of such system of records.
    (3) Necessary information to verify the identity of the requester 
pursuant to paragraph (c) of this section; and
    (4) Any other information that may assist in the rapid 
identification of the record for which access is being requested (e.g., 
maiden name, dates of employment, etc.).
    (c) Verification of identity. The Board shall require proof of 
identity from a requester and reserves the right to determine the 
adequacy of such proof. In general, the following shall be considered 
adequate proof of identity:
    (1) For a current Board employee, his or her Board identification 
card; or
    (2) For an individual other than a current Board employee, either:
    (i) Two forms of identification, one of which has a picture of the 
individual requesting access; or
    (ii) A notarized statement attesting to the identity of the 
requester.
    (d) Verification of identity not required. No verification of 
identity shall be required of individuals seeking access to records that 
are otherwise available to any person under 5 U.S.C. 552, Freedom of 
Information Act.
    (e) Request for accounting of previous disclosures. An individual 
making a request pursuant to paragraph (a) of this section may also 
include a request for an accounting (pursuant to 5 U.S.C. 552a(c)) of 
previous disclosures of records pertaining to such individual in a 
designated system of records.



Sec. 261a.6  Board procedures for responding to request for access.

    (a) Compliance with Freedom of Information Act. Every request made 
pursuant to Sec. 261a.5 of this part shall also be handled by the Board 
as a request for information pursuant to the Freedom of Information Act 
(5 U.S.C. 552), except that the time limits set forth in paragraph (b) 
of this section and the fees specified in Sec. 261a.4 of this part shall 
apply to such requests.
    (b) Time limits. Every request made pursuant to Sec. 261a.5 of this 
part shall be acknowledged or, where practicable, substantially 
responded to within 10 business days from receipt of the request.
    (c) Disclosure. (1) Information to be disclosed pursuant to this 
part and the Privacy Act, except for information

[[Page 652]]

maintained by the Board's OIG, shall be made available for inspection 
and copying during regular business hours at the Board's Freedom of 
Information Office.
    (2) Information to be disclosed that is maintained by the Board's 
OIG shall be made available for inspection and copying at the OIG.
    (3) When the requested record cannot reasonably be put into a form 
for individual inspection (e.g., computer tapes), or when the requester 
asks that the information be forwarded, copies of such information shall 
be mailed to the requester.
    (4) Access to or copies of requested information shall be promptly 
provided after the acknowledgement as provided in paragraph (b) of this 
section, unless good cause for delay is communicated to the requester.
    (d) Other authorized presence. The requester of information may be 
accompanied in the inspection of that information by a person of the 
requester's own choosing upon the requester's submission of a written 
and signed statement authorizing the presence of such person.
    (e) Denial of request. A denial of a request made pursuant to 
Sec. 261a.5 of this part shall include a statement of the reason(s) for 
denial and the procedures for appealing the denial.



Sec. 261a.7  Special procedures for medical records.

    Medical or psychological records requested pursuant to Sec. 261a.5 
of this part shall be disclosed directly to the requester unless such 
disclosure could, in the judgment of the Privacy Officer, in 
consultation with the Board's physician, have an adverse effect upon the 
requester. Upon such determination, the information shall be transmitted 
to a licensed physician named by the requester, who will disclose those 
records to the requester in a manner the physician deems appropriate.



Sec. 261a.8  Request for amendment of record.

    (a) Procedures for making request. (1) An individual desiring to 
amend a record in a designated system of records that pertains to him or 
her shall submit a request in writing to the Secretary of the Board (or 
to the Inspector General for records in a system of records maintained 
by the OIG) in an envelope clearly marked ``Privacy Act Amendment 
Request.''
    (2) Each request for amendment of a record shall:
    (i) Identify the system of records containing the record for which 
amendment is requested;
    (ii) Specify the portion of that record requested to be amended; and
    (iii) Describe the nature of and reasons for each requested 
amendment.
    (3) Each request for amendment of a record shall be subject to 
verification of identity under the procedures set forth in 
Sec. 261a.5(c) of this part, unless such verification has already been 
made in a related request for access or amendment.
    (b) Burden of proof. The request for amendment of a record shall set 
forth the reasons the individual believes the record is not accurate, 
relevant, timely, or complete. The burden of proof for demonstrating the 
appropriateness of the requested amendment rests with the requester, and 
the requester shall provide relevant and convincing evidence in support 
of the request.



Sec. 261a.9  Board review of request for amendment of record.

    (a) Time limits. The Board shall acknowledge a request for amendment 
of a record within 10 business days of receipt of the request. Such 
acknowledgement may request additional information necessary for a 
determination on the request for amendment. To the extent possible, a 
determination upon a request to amend a record shall be made within 10 
business days after receipt of the request.
    (b) Contents of response to request for amendment. The response to a 
request for amendment shall include the following:
    (1) The decision to grant or deny, in whole or in part, the request 
for amendment; and
    (2) If the request is denied:
    (i) The reasons for denial of any portion of the request for 
amendment;
    (ii) The requester's right to appeal any denial; and
    (iii) The procedures for appealing the denial to the appropriate 
official.

[[Page 653]]



Sec. 261a.10  Appeal of adverse determination of request for access or amendment.

    (a) Appeal. A requester may appeal a denial of a request made 
pursuant to Sec. 261a.5 or Sec. 261a.8 of this part to the Board, or any 
official designated by the chairman of the Board, within 10 business 
days of issuance of notification of denial. The appeal shall:
    (1) Be made in writing to the Secretary of the Board, with the words 
``PRIVACY ACT APPEAL'' written prominently on the first page;
    (2) Specify the previous background of the request; and
    (3) Provide reasons why the initial denial is believed to be in 
error.
    (b) Determination. The Board or an official designated by the 
Chairman of the Board shall make a determination with respect to such 
appeal not later than 30 business days from its receipt, unless the time 
is extended for good cause shown.
    (1) If the Board or designated official grants an appeal regarding a 
request for amendment, the Board shall take the necessary steps to amend 
the record, and, when appropriate and possible, notify prior recipients 
of the record of the Board's action.
    (2) If the Board or designated official denies an appeal, the Board 
shall inform the requester of such determination, give a statement of 
the reasons therefor, and inform the requester of the right of judicial 
review of the determination.
    (c) Statement of disagreement. (1) Upon receipt of a denial of an 
appeal regarding a request for amendment, the requester may file a 
concise statement of disagreement with the denial. Such statement shall 
be maintained with the record the requester sought to amend, and any 
disclosure of the record shall include a copy of the statement of 
disagreement.
    (2) When practicable and appropriate, the Board shall provide a copy 
of the statement of disagreement to any person or other agency to whom 
the record was previously disclosed.



  Subpart C--Disclosure to Person Other Than Individual to Whom Record 
                                Pertains



Sec. 261a.11  Restrictions on disclosure.

    No record contained in a designated system of records shall be 
disclosed to any person or agency without the prior written consent of 
the individual to whom the record pertains unless the disclosure is 
authorized by Sec. 261a.12 of this part.



Sec. 261a.12  Exceptions.

    The restrictions on disclosure in Sec. 261a.11 of this part do not 
apply to any disclosure:
    (a) To those officers and employees of the Board who have a need for 
the record in the performance of their duties;
    (b) That is required under the Freedom of Information Act (5 U.S.C. 
552);
    (c) For a routine use listed with respect to a designated system of 
records;
    (d) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
title 13 of the United States Code;
    (e) To a recipient who has provided the Board with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (f) To the National Archives of the United States as a record that 
has sufficient historical or other value to warrant its continued 
preservation by the United States government, or for evaluation by the 
administrator of General Services or his designee to determine whether 
the record has such value;
    (g) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the Board specifying the particular

[[Page 654]]

portion desired and the law enforcement activity for which the record is 
sought;
    (h) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (i) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (j) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (k) Pursuant to the order of a court of competent jurisdiction; or
    (l) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(f).



                        Subpart D--Exempt Records



Sec. 261a.13  Exemptions.

    (a) Information compiled for civil action. Nothing in this 
regulation shall allow an individual access to any information compiled 
in reasonable anticipation of a civil action or proceeding.
    (b) Law enforcement information. Pursuant to section (k)(2) of the 
Privacy Act of 1974 (5 U.S.C. 552a(k)(2)), the Board has deemed it 
necessary to exempt certain designated systems of records maintained by 
the Board from the requirements of the Privacy Act concerning access to 
accountings of disclosures and to records, maintenance of only relevant 
and necessary information in files, and certain publication provisions, 
respectively, 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f), and Secs. 261a.5, 261a.7 and 261a.8 of this part. Accordingly, 
the following designated systems of records are exempt from these 
provisions, but only to the extent that they contain investigatory 
materials compiled for law enforcement purposes:
    (1) BGFRS-1  Recruiting and Placement Records.
    (2) BGFRS-2 Personnel Background Investigation Reports.
    (3) BGFRS-4  General Personnel Records.
    (4) BGFRS-5  EEO Discrimination Complaint File.
    (5) BGFRS-9  Consultant and Staff Associate File.
    (6) BGFRS-16  Regulation G Reports.
    (7) BGFRS-18  Consumer Complaint Information System.
    (8) BGFRS-21  Supervisory Tracking and Reference System.
    (9) BGFRS/OIG-1  OIG Investigatory Records.
    (c) Confidential references. Pursuant to section (k)(5) of the 
Privacy Act of 1974 (5 U.S.C. 552a(k)(5)), the Board has deemed it 
necessary to exempt certain designated systems of records maintained by 
the Board from the requirements of the Privacy Act concerning access to 
accountings of disclosures and to records, maintenance of only relevant 
and necessary information in files, and certain publication provisions, 
respectively 5 U.S.C. 552a(c)b(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f), and Secs. 261a.5, 261a.7 and 261a.8 of this part. Accordingly, 
the following systems of records are exempt from these provisions, but 
only to the extent that they contain investigatory material compiled to 
determine an individual's suitability, eligibility, and qualifications 
for Board employment or access to classified information, and the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Board under a promise of confidentiality.
    (1) BGFRS-1  Recruiting and Placement Records.
    (2) BGFRS-2  Personnel Background Investigation Reports.
    (3) BGFRS-4  General Personnel Records.
    (4) BGFRS-9  Consultant and Staff Associate File.
    (5) BGFRS-10  General File on Board Members.
    (6) BGFRS-11  Official General Files.
    (7) BGFRS-13  General File of Examiners and Assistant Examiners at 
Federal Reserve Banks.
    (8) BGFRS-14  General File of Federal Reserve Bank and Branch 
Directors.
    (9) BGFRS-15  General Files of Federal Reserve Agents, Alternates 
and Representatives at Federal Reserve Banks.

[[Page 655]]

    (10) BGFRS/OIG-2  OIG Personnel Records.
    (d) Criminal law enforcement information. Pursuant to 5 U.S.C. 
552a(j)(2), the Board has determined that portions of the OIG 
Investigatory Records (BGFRS/OIG-1) shall be exempt from any part of the 
Privacy Act (5 U.S.C. 552a), except the provisions regarding disclosure, 
the requirement to keep an accounting, certain publication requirements, 
certain requirements regarding the proper maintenance of systems of 
records, and the criminal penalties for violation of the Privacy Act, 
respectively, 5 U.S.C. 552a (b), (c)(1), and (2), (e)(4) (A) through 
(F), (e)(6), (e)(7), (e)(9), (e)(10), (e)(11) and (i). This designated 
system of records is maintained by the OIG, a Board component that 
performs as its principal function an activity pertaining to the 
enforcement of criminal laws. The exempt portions of the records consist 
of:
    (1) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders;
    (2) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (3) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision.



PART 261b--RULES REGARDING PUBLIC OBSERVATION OF MEETINGS--Table of Contents




Sec.
261b.1  Basis and scope.
261b.2  Definitions.
261b.3  Conduct of agency business.
261b.4  Meetings open to public observation.
261b.5  Exemptions.
261b.6  Public announcements of meetings.
261b.7  Meetings closed to public observation under expedited 
          procedures.
261b.8  Meetings closed to public observation under regular procedures.
261b.9  Changes with respect to publicly announced meeting.
261b.10  Certification of General Counsel.
261b.11  Transcripts, recordings, and minutes.
261b.12  Procedures for inspection and obtaining copies of 
          transcriptions and minutes.
261b.13  Fees.

    Authority: 5 U.S.C. 552b.

    Source: 42 FR 13297, Mar. 10, 1977, unless otherwise noted.



Sec. 261b.1  Basis and scope.

    This part is issued by the Board of Governors of the Federal Reserve 
System (``the Board'') under section 552b of title 5 of the United 
States Code, the Government in the Sunshine Act (``the Act''), to carry 
out the policy of the Act that the public is entitled to the fullest 
practicable information regarding the decision making processes of the 
Board while at the same time preserving the rights of individuals and 
the ability of the Board to carry out its responsibilities. These 
regulations fulfill the requirement of subsection (g) of the Act that 
each agency subject to the provisions of the Act shall promulgate 
regulations to implement the open meeting requirements of subsections 
(b) through (f) of the Act.



Sec. 261b.2  Definitions.

    For purposes of this part, the following definitions shall apply:
    (a) The term agency means the Board and subdivisions thereof.
    (b) The term subdivision means any group composed of two or more 
Board members that is authorized to act on behalf of the Board.
    (c) The term meeting means the deliberations of at least the number 
of individual agency members required to take action on behalf of the 
agency where such deliberations determine or result in the joint conduct 
or disposition of official Board business, but does not include (1) 
deliberations required or permitted by subsections (d) or (e) of the 
Act, or (2) the conduct or disposition of official agency business by 
circulating written material to individual members.
    (d) The term number of individual agency members required to take 
action on behalf of the agency means in the case of the Board, a 
majority of its members except that (1) Board determination of the ratio 
of reserves against deposits under section 19(b) of the Federal Reserve 
Act requires the

[[Page 656]]

vote of four members, (2) Board action with respect to advances, 
discounts and rediscounts under sections 10(a), 11(b), and 13(3) of the 
Federal Reserve Act requires the vote of five members and (3) Board 
action with respect to the percentage of individual member bank capital 
and surplus which may be represented by loans secured by stock and bond 
collateral under section 11(m) of the Federal Reserve Act requires the 
vote of six members. In the case of subdivisions of the Board, the term 
means the number of members constituting a quorum of the designated 
subdivision.
    (e) The term member means a member of the Board appointed under 
section 10 of the Federal Reserve Act. In the case of certain Board 
proceedings pursuant to 12 U.S.C. 1818(e), the Comptroller of the 
Currency is entitled to sit as a member of the Board and for these 
proceedings he shall be deemed a member for the purposes of this part. 
In the case of any subdivision of the Board, the term member means a 
member of the Board designated to serve on that subdivision.
    (f) The term public observation means that the public shall have the 
right to listen and observe but not to record any of the meetings by 
means of cameras or electronic or other recording devices unless 
approval in advance is obtained from the Public Affairs Office of the 
Board and shall not have the right to participate in the meeting, unless 
participation is provided for in the Board's Rules of Procedure.
    (g) The term Federal agency means an agency as defined in 5 U.S.C. 
551(1).
    (h) Committee means the Action Committee established pursuant to 12 
CFR 265.1a(c).

[42 FR 13297, Mar. 10, 1977, as amended at 43 FR 34481, Aug. 4, 1978]



Sec. 261b.3  Conduct of agency business.

    Members shall not jointly conduct or dispose of official agency 
business other than in accordance with this part.



Sec. 261b.4  Meetings open to public observation.

    (a) Except as provided in Sec. 261b.5, every portion of every 
meeting of the agency shall be open to public observation.
    (b) Copies of staff documents considered in connection with agency 
discussion of agenda items for a meeting that is open to public 
observation shall be made available for distribution to members of the 
public attending the meeting, in accordance with the provisions of 12 
CFR part 261.
    (c) The agency will maintain a complete electronic recording 
adequate to record fully the proceedings of each meeting or portion of a 
meeting open to public observation. Cassettes will be available for 
listening in the Freedom of Information Office, and copies may be 
ordered for $5 per cassette by telephoning or by writing Freedom of 
Information Office, Board of Governors of the Federal Reserve System, 
Washington, DC 20551.
    (d) The agency will maintain mailing lists of names and addresses of 
all persons who wish to receive copies of agency announcements of 
meetings open to public observation. Requests for announcements may be 
made by telephoning or by writing Freedom of Information Office, Board 
of Governors of the Federal Reserve System, Washington, DC 20551.

[44 FR 11750, Mar. 2, 1979]



Sec. 261b.5  Exemptions.

    (a) Except in a case where the agency finds that the public interest 
requires otherwise, the agency may close a meeting or a portion or 
portions of a meeting under the procedures specified in Sec. 261b.7 or 
Sec. 261b.8 of this part, and withhold information under the provisions 
of Secs. 261b.6, 261b.7, 261b.8, or 261b.11 of this part, where the 
agency properly determines that such meeting or portion or portions of 
its meeting or the disclosure of such information is likely to:
    (1) Disclose matters that are (i) specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interests of national defense or foreign policy, and (ii) in fact 
properly classified pursuant to such Executive order;
    (2) Relate solely to internal personnel rules and practices;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than section 552 of title 5 of the United States Code), 
provided that

[[Page 657]]

such statute (i) requires that the matters be withheld from the public 
in such a manner as to leave no discretion on the issue, or (ii) 
establishes particular criteria for withholding or refers to particular 
types of matters to be withheld;
    (4) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring 
any person;
    (6) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would--
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by a Federal agency conducting a 
lawful national security intelligence investigation, confidential 
information furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of the Board or other Federal agency responsible for the regulation 
or supervision of financial institutions;
    (9) Disclose information the premature disclosure of which would--
    (i) Be likely to (A) lead to significant speculation in currencies, 
securities, or commodities, or (B) significantly endanger the stability 
of any financial institution; or
    (ii) Be likely to significantly frustrate implementation of a 
proposed action, except that paragraph (a)(9)(ii) of this section shall 
not apply in any instance where the Board has already disclosed to the 
public the content or nature of its proposed action, or where the Board 
is required by law to make such disclosure on its own initiative prior 
to taking final action on such proposal; or
    (10) Specifically concern the issuance of a subpoena, participation 
in a civil action or proceeding, an action in a foreign court or 
international tribunal, or an arbitration, or the initiation, conduct, 
or disposition of a particular case of formal agency adjudication 
pursuant to the procedures in section 554 of title 5 of the United 
States Code or otherwise involving a determination on the record after 
opportunity for a hearing.



Sec. 261b.6  Public announcement of meetings.

    (a) Except as otherwise provided by the Act, public announcement of 
meetings open to public observation and meetings to be partially or 
completely closed to public observation pursuant to Sec. 261b.8 of this 
part will be made at least one week in advance of the meeting. Except to 
the extent such information is determined to be exempt from disclosure 
under Sec. 261b.5 of this part, each such public announcement will state 
the time, place and subject matter of the meeting, whether it is to be 
open or closed to the public, and the name and phone number of the 
official designated to respond to requests for information about the 
meeting.
    (b) If a majority of the members of the agency determines by a 
recorded vote that agency business requires that a meeting covered by 
paragraph (a) of this section be called at a date earlier than that 
specified in paragraph (a) of this section, the agency will make a 
public announcement of the information specified in paragraph (a) of 
this section at the earliest practicable time.
    (c) Changes in the subject matter of a publicly announced meeting, 
or in the determination to open or close a publicly announced meeting or 
any portion of a publicly announced meeting to public observation, or in 
the time or place of a publicly announced meeting

[[Page 658]]

made in accordance with the procedures specified in Sec. 261b.9 of this 
part will be publicly announced at the earliest practicable time.
    (d) Public announcements required by this section will be posted at 
the Board's Public Affairs Office and Freedom of Information Office and 
may be made available by other means or at other locations as may be 
desirable.
    (e) Immediately following each public announcement required by this 
section, notice of the time, place and subject matter of a meeting, 
whether the meeting is open or closed, any change in one of the 
preceding announcements and the name and telephone number of the 
official designated by the Board to respond to requests about the 
meeting, shall also be submitted for publication in the Federal 
Register.



Sec. 261b.7  Meetings closed to public observation under expedited procedures.

    (a) Since the Board and the Committee qualifies for the use of 
expedited procedures under subsection (d)(4) of the Act, meetings or 
portions thereof exempt under paragraph (a)(4), (a)(8), (a)(9)(i) or 
(a)(10) of Sec. 261b.5 of this part, will be closed to public 
observation under the expedited procedures of this section. Following 
are examples of types of items that, absent compelling contrary 
circumstances, will qualify for these exemptions: Matters relating to a 
specific bank or bank holding company, such as bank branches or mergers, 
bank holding company formations, or acquisition of an additional bank or 
acquisition or de novo undertaking of a permissible nonbanking activity; 
bank regulatory matters, such as applications for membership, issuance 
of capital notes and investment in bank premises; foreign banking 
matters; bank supervisory and enforcement matters, such as cease-and-
desist and officer removal proceedings; monetary policy matters, such as 
discount rates, use of the discount window, changes in the limitations 
on payment of interest on time and savings accounts, and changes in 
reserve requirements or margin regulations.
    (b) At the beginning of each meeting, a portion or portions of which 
is closed to public observation under expedited procedures pursuant to 
this section, a recorded vote of the members present will be taken to 
determine whether a majority of the members of the agency votes to close 
such meeting of portions of such meeting to public observation.
    (c) A copy of the vote, reflecting the vote of each member, and 
except to the extent such information is determined to be exempt from 
disclosure under Sec. 261b.5, a public announcement of the time, place 
and subject matter of the meeting or each closed portion thereof, will 
be made available at the earliest practicable time at the Board's Public 
Affairs Office and Freedom of Information Office.

[42 FR 13297, Mar. 10, 1977, as amended at 43 FR 34481, Aug. 4, 1978]



Sec. 261b.8  Meetings closed to public observation under regular procedures.

    (a) A meeting or a portion of a meeting will be closed to public 
observation under regular procedures, or information as to such meeting 
or portion of a meeting will be withheld only by recorded vote of a 
majority of the members of the agency when it is determined that the 
meeting or the portion of the meeting or the withholding of information 
qualifies for exemption under Sec. 261b.5. Votes by proxy are not 
allowed.
    (b) Except as provided in subsection (c) of this section, a separate 
vote of the members of the agency will be taken with respect to the 
closing or the withholding of information as to each meeting or portion 
thereof which is proposed to be closed to public observation or with 
respect to which information is proposed to be withheld pursuant to this 
section.
    (c) A single vote may be taken with respect to a series of meetings, 
a portion or portions of which are proposed to be closed to public 
observation or with respect to any information concerning such series of 
meetings proposed to be withheld, so long as each meeting or portion 
thereof in such series involves the same particular matters and is 
scheduled to be held no more than thirty days after the initial meeting 
in such series.
    (d) Whenever any person's interests may be directly affected by a 
portion of

[[Page 659]]

a meeting for any of the reasons referred to in exemption (a)(5), (a)(6) 
or (a)(7) of Sec. 261b.5 of this part, such person may request in 
writing to the Secretary of the Board that such portion of the meeting 
be closed to public observation. The Secretary, or in his or her 
absence, the Acting Secretary of the Board, will transmit the request to 
the members and upon the request of any one of them a recorded vote will 
be taken whether to close such meeting to public observation.
    (e) Within one day of any vote taken pursuant to paragraphs (a) 
through (d) of this section, the agency will make publicly available at 
the Board's Public Affairs Office and Freedom of Information Office a 
written copy of such vote reflecting the vote of each member on the 
question. If a meeting or a portion of a meeting is to be closed to 
public observation, the agency, within one day of the vote taken 
pursuant to paragraphs (a) through (d) of this section, will make 
publicly available at the Board's Public Affairs Office and Freedom of 
Information Office a full, written explanation of its action closing the 
meeting or portion of the meeting together with a list of all persons 
expected to attend the meeting and their affiliation, except to the 
extent such information is determined by the agency to be exempt from 
disclosure under subsection (c) of the Act and Sec. 261b.5 of this part.
    (f) Any person may request in writing to the Secretary of the Board 
that an announced closed meeting, or portion of the meeting, be held 
open to public observation. The Secretary, or in his or her absence, the 
Acting Secretary of the Board, will transmit the request to the members 
of the Board and upon the request of any member a recorded vote will be 
taken whether to open such meeting to public observation.

[42 FR 13297, Mar. 10, 1977, as amended at 44 FR 11750, Mar. 2, 1979]



Sec. 261b.9  Changes with respect to publicly announced meeting.

    The subject matter of a meeting or the determination to open or 
close a meeting or a portion of a meeting to public observation may be 
changed following public announcement under Sec. 261b.6 only if a 
majority of the members of the agency determines by a recorded vote that 
agency business so requires and that no earlier announcement of the 
change was possible. Public announcement of such change and the vote of 
each member upon such change will be made pursuant to Sec. 261b.6(c). 
Changes in time, including postponements and cancellations of a publicly 
announced meeting or portion of a meeting or changes in the place of a 
publicly announced meeting will be publicly announced pursuant to 
Sec. 261b.6(c) by the Secretary of the Board or, in the Secretary's 
absence, the Acting Secretary of the Board.



Sec. 261b.10  Certification of General Counsel.

    Before every meeting or portion of a meeting closed to public 
observation under Sec. 261b.7 or 261b.8 of this part, the General 
Counsel, or in the General Counsel's absence, the Acting General 
Counsel, shall publicly certify whether or not in his or her opinion the 
meeting may be closed to public observation and shall state each 
relevant exemptive provision. A copy of such certification, together 
with a statement from the presiding officer of the meeting setting forth 
the time and place of the meeting and the persons present, will be 
retained for the time prescribed in Sec. 261b.11(d).



Sec. 261b.11  Transcripts, recordings, and minutes.

    (a) The agency will maintain a complete transcript or electronic 
recording or transcription thereof adequate to record fully the 
proceedings of each meeting or portion of a meeting closed to public 
observation pursuant to exemption (a)(1), (a)(2), (a)(3), (a)(4), 
(a)(5), (a)(6), (a)(7) or (a)(9)(ii) of Sec. 261b.5 of this part. 
Transcriptions of recordings will disclose the identity of each speaker.
    (b) The agency will maintain either such a transcript, recording or 
transcription thereof, or a set of minutes that will fully and clearly 
describe all matters discussed and provide a full and accurate summary 
of any actions taken and the reasons therefor, including a description 
of each of the views expressed on any item and the record of any roll 
call vote (reflecting the

[[Page 660]]

vote of each member on the question), for meetings or portions of 
meetings closed to public observation pursuant to exemptions (a)(8), 
(a)(9)(A) or (a)(10) of Sec. 261b.5 of this part. The minutes will 
identify all documents considered in connection with any action taken.
    (c) Transcripts, recordings or transcriptions thereof, or minutes 
will promptly be made available to the public in the Freedom of 
Information Office except for such item or items of such discussion or 
testimony as may be determined to contain information that may be 
withheld under subsection (c) of the Act and Sec. 261b.5 of this part.
    (d) A complete verbatim copy of the transcript, a complete copy of 
the minutes, or a complete electronic recording or verbatim copy of a 
transcription thereof of each meeting or portion of a meeting closed to 
public observation will be maintained for a period of at least two years 
or one year after the conclusion of any agency proceeding with respect 
to which the meeting or portion thereof was held, whichever occurs 
later.



Sec. 261b.12  Procedures for inspection and obtaining copies of transcriptions and minutes.

    (a) Any person may inspect or copy a transcript, a recording or 
transcription of a recording, or minutes described in Sec. 261b.11(c) of 
this part.
    (b) Requests for copies of transcripts, recordings or transcriptions 
of recordings, or minutes described in Sec. 261b.11(c) of this part 
shall specify the meeting or the portion of meeting desired and shall be 
submitted in writing to the Secretary of the Board, Board of Governors 
of the Federal Reserve System, Washington, DC 20551. Copies of documents 
identified in minutes may be made available to the public upon request 
under the provisions of 12 CFR part 261 (Rules Regarding Availability of 
Information).



Sec. 261b.13  Fees.

    (a) Copies of transcripts, recordings or transcriptions of 
recordings, or minutes requested pursuant to section Sec. 261b.12(b) of 
this part will be provided at the cost of 10 cents per standard page for 
photocopying or at a cost not to exceed the actual cost of printing, 
typing, or otherwise preparing such copies.
    (b) Documents may be furnished without charge where total charges 
are less than $2.



PART 262--RULES OF PROCEDURE--Table of Contents




Sec.
262.1  Basis and scope.
262.2  Procedure for regulations.
262.3  Applications.
262.4  Adjudication with formal hearing.
262.5  Appearance and practice.
262.6  Forms.
262.7--262.24  [Reserved]
262.25  Policy statement regarding notice of applications; timeliness of 
          comments; informal meetings.

    Authority: 5 U.S.C. 552, 12 U.S.C. 321, 1828(c), and 1842.

    Source: 38 FR 6807, Mar. 13, 1973, unless otherwise noted.



Sec. 262.1   Basis and scope.

    This part is issued pursuant to section 552 of title 5 of the United 
States Code, which requires that every agency shall publish in the 
Federal Register statements of the general course and method by which 
its functions are channeled and determined, rules of procedure, and 
descriptions of forms available or the places at which forms may be 
obtained.



Sec. 262.2   Procedure for regulations.

    (a) Notice. Notices of proposed regulations of the Board of 
Governors of the Federal Reserve System (the ``Board'') or amendments 
thereto are published in the Federal Register, except as specified in 
paragraph (e) of this section or otherwise excepted by law. Such notices 
include a statement of the terms of the proposed regulations or 
amendments and a description of the subjects and issues involved; but 
the giving of such notices does not necessarily indicate the Board's 
final approval of any feature of any such proposal. The notices also 
include a reference to the authority for the proposed regulations or 
amendments and a statement of the time, place, and nature of public 
participation.
    (b) Public participation. The usual method of public submission of 
data, views, or arguments is in writing. It is ordinarily preferable 
that they be sent

[[Page 661]]

to the Secretary of the Board, Washington, DC 20551, with copies to the 
appropriate Federal Reserve Bank. The locations of the 12 Federal 
Reserve Banks and the boundaries of the Federal Reserve districts are 
shown in the appendix to the Board's rules of organization. Such 
material will be made available for inspection and copying upon request, 
except as provided in Sec. 261.6(b) of this chapter regarding 
availability of information.
    (c) Preparation of draft and action by Board. In the light of 
consideration of all relevant matter presented or ascertained, the 
appropriate division of the Board's staff, in collaboration with other 
divisions, prepares drafts of proposed regulations or amendments, and 
the staff submits them to the Board. The Board takes such action as it 
deems appropriate in the public interest. Any other documents that may 
be necessary to carry out any decision by the Board in the matter are 
usually prepared by the Legal Division, in collaboration with the other 
divisions of the staff.
    (d) Effective dates. Any substantive regulation or amendment thereto 
issued by the Board is published not less than 30 days prior to the 
effective date thereof, except as specified in paragraph (e) of this 
section or as otherwise excepted by law.
    (e) Exceptions as to notice or effective date. In certain 
situations, notice and public participation with respect to proposed 
regulations may be impracticable, unnecessary, contrary to the public 
interest, or otherwise not required in the public interest, or there may 
be reason and good cause in the public interest why the effective date 
should not be deferred for 30 days. The reason or reasons in such cases 
usually are that such notice, public participation, or deferment of 
effective date would prevent the action from becoming effective as 
promptly as necessary in the public interest, would permit speculators 
or others to reap unfair profits or to interfere with the Board's 
actions taken with a view to accommodating commerce and business and 
with regard to their bearing upon the general credit situation of the 
country, would provoke other consequences contrary to the public 
interest, would unreasonably interfere with the Board's necessary 
functions with respect to management or personnel, would not aid the 
persons affected, or would otherwise serve no useful purpose. The 
following may be mentioned as some examples of situations in which 
advance notice or deferred effective date, or both, will ordinarily be 
omitted in the public interest: The review and determination of discount 
rates established by Federal Reserve Banks, and changes in general 
requirements regarding reserves of member banks, maximum interest rates 
on time and savings deposits, or credit for purchasing or carrying 
securities.

[38 FR 6807, Mar. 13, 1973, as amended at 54 FR 33183, Aug. 14, 1989]



Sec. 262.3   Applications.

    (a) Forms. Any application, request, or petition (hereafter referred 
to as ``application'') for the approval, authority, determination, or 
permission of the Board with respect to any action for which such 
approval, authority, determination, or permission is required by law or 
regulation of the Board (including actions authorized to be taken by a 
Federal Reserve Bank or others on behalf of the Board pursuant to 
authority delegated under Part 265 of this chapter) shall be submitted 
in accordance with the pertinent form, if any, prescribed by the Board. 
Copies of any such form and details regarding information to be included 
therein may be obtained from any Federal Reserve Bank. Any application 
for which no form is prescribed should be signed by the person making 
the application or by his duly authorized agent, should state the facts 
involved, the action requested, and the applicant's interest in the 
matter, and should indicate the reasons why the application should be 
granted. Applications for access to, or copying of, records of the Board 
should be submitted as provided in Sec. 261.9(a) of this chapter.
    (b) Notice of applications. (1)(i) In the case of applications,
    (A) For membership in the Federal Reserve System where such 
membership would confer Federal deposit insurance on a bank,
    (B) By a State member bank for the establishment of a domestic 
branch or

[[Page 662]]

other facility that would be authorized to receive deposits,
    (C) By a State member bank for the relocation of a domestic branch 
office,
    (D) To become a bank holding company (except as provided in 12 CFR 
225.15), and
    (E) By a bank holding company to acquire ownership or control of 
shares or assets of a bank, or to merge or consolidate with any other 
bank holding company,

the applicant shall cause to be published a notice in the form 
prescribed by the Board.
    (ii) The notice shall be placed in the classified advertising legal 
notices section of the newspaper, and must provide an opportunity for 
the public to give written comment on the application to the appropriate 
Federal Reserve Bank for at least thirty days after the date of 
publication. Within 7 days of publication, the applicant shall submit 
its application to the appropriate Reserve Bank for acceptance along 
with a copy of the notice. If the Reserve Bank has not accepted the 
application as complete within ninety days of the date of publication of 
the notice, the applicant may be required to republish notice of the 
application. Such notice shall be published in a newspaper of general 
circulation in--
    (A) The community in which the head office of the bank is or is to 
be located in the case of an application for membership that would 
confer deposit insurance,
    (B) The community or communities in which the head office of the 
bank and the proposed branch or other facility (other than an electronic 
funds transfer facility) are located in the case of an application for 
the establishment of a domestic branch or other facility that would be 
authorized to receive deposits,
    (C) The community or communities in which the head office of the 
bank, the office to be closed, and the office to be opened are located 
in the case of an application for the relocation of a domestic branch 
office,
    (D) The community or communities in which the head office of each of 
the banks to be party to the merger, consolidation, or acquisition of 
assets or assumption of liabilities are located in the case of an 
application by a bank for merger, consolidation, or acquisition of 
assets or assumption of liabilities, or
    (E) The community or communities in which the head offices of the 
largest subsidiary bank, if any, or an applicant and of each bank, 
shares of which are to be directly or indirectly acquired, are located 
in the case of applications under section 3 of the Bank Holding Company 
Act.
    (2) In addition to the foregoing notice, an applicant, in the case 
of an application to relocate a domestic branch office or other facility 
that would be authorized to receive deposits, shall post in a 
conspicuous public place in the lobby of the office to be closed a 
notice containing the information specified in Sec. 262.3(b)(1). Such 
notice should be posted on the date of the notice required by 
Sec. 262.3(b)(1).
    (3) In the case of an application for a merger, consolidation, or 
acquisition of assets or assumption of liabilities, if the acquiring, 
assuming, or resulting bank is to be a State member bank, the applicant 
shall cause to be published notice in the form prescribed by the Board. 
The notice shall be published in a newspaper of general circulation in 
the community or communities in which the head office of each of the 
banks to be a party to the merger, consolidation, or acquisition of 
assets or assumption of liabilities is located. The notice shall be 
published on at least three occasions at appropriate intervals. The last 
publication of the notice shall appear at least thirty days after the 
first publication. The notice must provide an opportunity for the public 
to give written comment on the application to the appropriate Federal 
Reserve Bank for at least thirty days after the date of the first 
publication of the notice. Within seven days of publication of notice 
for the first time, the applicant shall submit its application to the 
appropriate Reserve Bank for acceptance, along with a copy of the 
notice. If the Reserve Bank has not accepted the application as complete 
within ninety days of the date of the first publication of the notice, 
the applicant may be required to republish notice of the application.

[[Page 663]]

    (c) Filing of applications. Any application should be sent to the 
Federal Reserve Bank of the district in which the head office of the 
parent banking organization is located, except as otherwise specified on 
application forms, and that Bank will forward it to the Board when 
appropriate; however, in the case of foreign banking organization, as 
defined in Sec. 211.23(a)(2) of this chapter, applications shall be sent 
to the Federal Reserve Bank of the district in which the operations of 
the organization's subsidiary banks are principally conducted. In the 
case of a foreign banking organization that is not a bank holding 
company but that has one or more branches, agencies, or commercial 
lending companies in any State of the United States or the District of 
Columbia, applications shall be sent to the Federal Reserve Bank of the 
district in which the organization's banking assets are the largest. 
Applications of a member bank subsidiary, however, should be filed with 
the Reserve Bank of the district in which the member bank is located.
    (d) Analysis by staff. In every case, the Reserve Bank makes such 
investigation as may be necessary, and, except when acting pursuant to 
delegated authority, reports the relevant facts, with its 
recommendation, to the Board. In the light of consideration of all 
relevant matter presented or ascertained, the Board's staff prepares and 
submits to the Board comments on the subject.
    (e) Submission of comments and requests for hearing. The Board is 
only required to consider a comment or a request for a hearing with 
respect to an application or notice if it is in writing and received by 
the Secretary of the Board or the appropriate Federal Reserve Bank on or 
before the latest date prescribed in any notice with respect to the 
application or notice, or where no such date is prescribed, on or before 
the 30th day after the date notice is first published. Similarly, the 
Board will consider comments on an application from the Attorney General 
or a banking supervisory authority to which notification of receipt of 
an application has been given, only if such comment is received by the 
Secretary of the Board within 30 days of the date of the letter giving 
such notification. Any comment on an application or notice that requests 
a hearing must include a statement of why a written presentation would 
not suffice in lieu of a hearing, identifying specifically any questions 
of fact that are in dispute and summarizing the evidence that would be 
presented at a hearing. In every case where a timely comment or request 
for hearing is received as provided herein, a copy of such comment or 
request shall be forwarded promptly to the applicant for its response. 
The Board will consider the applicant's response only if it is in 
writing and sent to the Secretary of the Board on or before eight 
business days after the date of the letter by which it is forwarded to 
the applicant. At the same time it transmits its response to the Board, 
the applicant should transmit a copy of its response to the person or 
supervisory authority making such comment or requesting a hearing. 
Notwithstanding the foregoing, the Board may, in its sole discretion and 
without notifying the parties, take into consideration the substance of 
comments with respect to an application, (but not requests for hearing) 
that are not received within the time periods provided herein.
    (f) Action on applications. The Board takes such action as it deems 
appropriate in the public interest. Such documents as may be necessary 
to carry out any decision by the Board are prepared by the Board's 
staff. With respect to actions taken by a Federal Reserve Bank on behalf 
of the Board under delegated authority, statements and necessary 
documents are prepared by the staff of such Federal Reserve Bank.
    (g) Notice of action. Prompt notice is given to the applicant of the 
granting or denial in whole or in part of any application. In the case 
of a denial, except in affirming a prior denial or where the denial is 
self-explanatory, such notice is accompanied by a simple statement of 
the grounds for such action.
    (h) Action at Board's initiative. When the Board, without receiving 
an application, takes action with respect to any matter as to which 
opportunity for hearing is not required by statute or Board regulation, 
similar procedure is

[[Page 664]]

followed, including investigations, reports, and recommendations by the 
Board's staff and by the Reserve Banks, where appropriate.
    (i) General procedures for bank holding company and merger 
applications. In addition to procedures applicable under other 
provisions of this part, the following procedures are applicable in 
connection with the Board's consideration of applications under sections 
3 and 4 of the Bank Holding Company Act of 1956 (12 U.S.C. 1842 and 
1843), hereafter referred to as ``section 3 applications'' or ``section 
4 applications,'' and of applications under section 18(c) of the Federal 
Deposit Insurance Act (12 U.S.C. 1823), hereafter called ``merger 
applications.'' Except as otherwise indicated, the following procedures 
apply to all such applications.
    (1) The Board issues each week a list that identifies section 3 and 
section 4 and merger applications received and acted upon during the 
preceding week by the Board or the Reserve Banks pursuant to delegated 
authority. Notice of receipt of all section 3 applications and of 
section 4(c)(8) applications acted on by the Board is published in the 
Federal Register.
    (2) If a hearing is required by law or if the Board determines that 
a formal hearing for the purpose of taking evidence is desirable, the 
Board issues an order for such a hearing, and a notice thereof is 
published in the Federal Register. Any such formal hearing is conducted 
by an administrative law judge in accordance with subparts A and B of 
the Board's Rules of Practice for Hearings (part 263 of this chapter).
    (3) In any case in which a formal hearing is not ordered by the 
Board, the Board may afford the applicant and other properly interested 
persons (including Governmental agencies) an opportunity to present 
views orally before the Board or its designated representative. Unless 
otherwise ordered by the Board, any such oral presentation is public and 
notice of such public proceeding is published in the Federal Register.
    (4) Each action taken by the Board on an application is embodied in 
an order that indicates the votes of members of the Board. The order 
either contains reasons for the Board's action (i.e., an expanded order) 
or is accompanied by a statement of the reasons for the Board's action. 
Both the order and any accompanying statement are released to the press. 
Each order accompanied by a statement and any order of general interest, 
together with a list of other orders, are published in the Federal 
Reserve Bulletin. Action by a Reserve Bank under delegated authority as 
provided for under part 265 of this chapter is reflected in a letter of 
notification to the applicant.
    (5) Unless the Board shall otherwise direct, each section 3 and 
section 4 and merger application is made available for inspection by the 
public except for portions thereof as to which the Board determines that 
nondisclosure is warranted under section 552(b) of title 5 of the United 
States Code.
    (j) Special procedures for certain applications. The following types 
of applications require procedures exclusive of, or in addition to, 
those described in paragraphs (i)(1) through (5) of this section.
    (1) Special rules pertaining to section 3 and merger applications 
follow:
    (i) Each order of the Board and each letter of notification by a 
Reserve Bank acting pursuant to delegated authority approving a section 
3 application includes, pursuant to the Act approved July 1, 1966 (12 
U.S.C. 1849(b)), a requirement that the transaction approved shall not 
be consummated before the 30th calendar day following the date of such 
order.
    (ii) Each order of the Board approving a merger application 
includes, pursuant to the Act approved February 21, 1966 (12 U.S.C. 
1828(c)(6)), a requirement that the transaction approved shall not be 
consummated before the 30th calendar day following the date of such 
order, except as the Board may otherwise determine pursuant to emergency 
situations as to which the Act permits consummation at earlier dates.
    (iii) Each order or each letter of notification approving an 
application also includes, as a condition of approval, a requirement 
that the transaction approved shall be consummated within 3 months and, 
in the case of acquisition by a holding company of stock of a newly 
organized bank, a requirement that such bank shall be opened for

[[Page 665]]

business within 6 months, but such periods may be extended for good 
cause by the Board (or by the appropriate Federal Reserve Bank where 
authority to grant such extensions is delegated to the Reserve Bank).
    (2) For special rules governing procedures for section 4 
applications, refer to Sec. 225.23 of this chapter.
    (3)--(4)  [Reserved]
    (5) For special rules governing procedures for section 4(c)(13) 
applications, refer to Sec. 225.4(f) of this chapter.
    (k) Reconsideration of certain Board actions. The Board may 
reconsider any action taken by it on an application upon receipt by the 
Secretary of the Board of a written request for reconsideration from any 
party to such application, on or before the 15th day after the effective 
date of the Board's action. Such request should specify the reasons why 
the Board should reconsider its action, and present relevant facts that 
for good cause shown, were not previously presented to the Board. Within 
10 days of receipt of such a request, the General Counsel, acting 
pursuant to delegated authority (12 CFR 265.2(b)(7)), shall determine 
whether or not the request for reconsideration should be granted, and 
shall notify all parties to the application orally by telephone of this 
determination within 10 days. Such notification will be confirmed 
promptly in writing. In the exercise of this authority, the General 
Counsel shall confer with the Directors of other interested Divisions of 
the Board or their designees. Notwithstanding the foregoing, the Board 
may, on its own motion if it deems reconsideration appropriate, elect to 
reconsider its action with respect to any application, and the parties 
to such application shall be notified by the Secretary of the Board of 
its election as provided above. If it is determined that the Board 
should reconsider its action with respect to an application, such action 
will be stayed and will not be final until the Board has acted on the 
application upon reconsideration. If appropriate, notice of 
reconsideration of an application will be published promptly in the 
Federal Register. 
    (l) Waiver. The Board, or the officer or Reserve Bank authorized to 
approve an application, may waive or modify any procedural requirements 
for that application prescribed or cited in this section and may excuse 
any failure to comply with them upon a finding that immediate action on 
the application is necessary to prevent the probable failure of a bank 
or company or that an emergency exists requiring expeditious action.

(12 U.S.C. 1842(a), 1843, and 1844(b), 12 U.S.C. 1828(c), 321 and 
248(i))

[38 FR 6807, Mar. 13, 1973, as amended at 42 FR 56719, Oct. 28, 1977; 43 
FR 47157, Oct. 12, 1978; 43 FR 49973, Oct. 26, 1978; 44 FR 64399, Nov. 
7, 1979; 45 FR 81544, Dec. 11, 1980; 46 FR 5861, Jan. 21, 1981; 49 FR 
5605, Feb. 14, 1984; 54 FR 33183, Aug. 14, 1989; 56 FR 38052, Aug. 9, 
1991; 56 FR 60056, Nov. 27, 1991; 57 FR 41642, Sept. 11, 1992; 58 FR 
47986, Sept. 14, 1993; 59 FR 54809, Nov. 2, 1994]



Sec. 262.4   Adjudication with formal hearing.

    In connection with adjudication with respect to which a formal 
hearing is required by law or is ordered by the Board, the procedure is 
set forth in part 263 of this chapter, entitled ``Rules of Practice for 
Formal Hearings.''



Sec. 262.5   Appearance and practice.

    Appearance and practice before the Board in all matters are governed 
by Sec. 263.3 of this chapter.



Sec. 262.6   Forms.

    Necessary forms to be used in connection with applications and other 
matters are available at the Federal Reserve Banks. A list of all such 
forms, which is reviewed and revised periodically, may be obtained from 
any Federal Reserve Bank.
    (a) This action is taken pursuant to and in accordance with the 
provisions of section 552 of title 5 of the United States Code.
    (b) The provisions of section 553 of title 5, United States Code, 
relating to notice and public participation and to deferred effective 
dates, are not followed in connection with the adoption of this action, 
because the rules involved are procedural in nature and accordingly do 
not constitute substantive rules subject to the requirements of such 
section.

[[Page 666]]

Secs. 262.7--262.24  [Reserved]



Sec. 262.25  Policy statement regarding notice of applications; timeliness of comments; informal meetings.

    (a) Notice of applications. A bank or company applying to the Board 
for a deposit-taking facility must first publish notice of its 
application in local newspapers. This requirement, found in 
Sec. 262.3(b)(1) of the Board's Rules of Procedure covers applications 
under the Bank Holding Company Act and Bank Merger Act, as well as 
applications for membership in the Federal Reserve System and for new 
branches of State member banks. Notices of these applications are 
published in newspapers of general circulation in the communities where 
the applicant intends to do business as well as in the community where 
the applicant's head office is located. These notices are important in 
calling the public's attention to an applicant's plans and giving the 
public a chance to comment on these plans. To improve the effectiveness 
of the notices, the Board has supplemented its notice procedures as 
follows.
    (1) The Board has adopted standard forms of notice for use by 
applicants that will specify the exact date on which the comment period 
on the application ends, which may not be less than thirty calendar days 
from the date of publication of the notice. The newspaper forms also 
provide the name and telephone number of the Community Affairs Officer 
of the appropriate Reserve Bank as the person to call to obtain more 
information about submitting comments on an application. In general, the 
Community Affairs Officer will be available to answer questions of a 
general nature concerning the submission of comments and the processing 
of applications.
    (2) The Board also publishes notice of bank holding company 
applications for bank acquisitions (but not for bank mergers or 
branches) in the Federal Register after the application is received and 
the Community Affairs Officer can provide the exact date on which this 
comment period ends. (The Federal Register comment period will generally 
end after the date specified in the newspaper notice.)
    (3) In addition to the formal newspaper and Federal Register notices 
discussed above, each Reserve Bank publishes a weekly list of 
applications submitted to the Reserve Bank for which newspaper notices 
have been published. Any person or organization may arrange to have the 
list mailed to them regularly, or may request particular lists, by 
contacting the Reserve Bank's Community Affairs Officer. Each Reserve 
Bank's list includes only applications submitted to that particular 
Reserve Bank, and persons or groups should request lists from each 
Reserve Bank having jurisdiction over applications in which they may be 
interested. Since the lists are prepared as a courtesy by the Reserve 
Bank, and are not intended to replace any formal notice required by 
statute or regulation, the Reserve Banks and the Board do not assume 
responsibility for errors or omissions. In addition, the weekly lists 
prepared by Reserve Banks include certain applications by bank holding 
companies for nonbank acquisitions filed with the Reserve Bank.
    (4) With respect to applications by bank holding companies to engage 
de novo in nonbank activities or make acquisitions of nonbank firms, the 
Board publishes notice of most of these applications in the Federal 
Register when the applications are filed. Notice of certain small 
acquisitions may be published in a newspaper of general circulation in 
the area(s) to be served. While applications for nonbanking activities 
are not covered by the provisions of the Community Reinvestment Act or 
the notice provisions of Sec. 262.3 of the Board's Rules of Procedure, 
the provisions of this Statement apply to such applications.
    (b) Timeliness of comments. (1) All comments must be actually 
received by the Board or the Reserve Bank on or before the last date of 
the comment period specified in the notice. Where more than one notice 
is published with respect to an application, comments must be received 
on or before the last date of the latest comment period. The Board's 
Rules allow it to disregard comments received after the comment period 
expires. In particular, Sec. 262.3(e) of the Board's Rules of Procedure 
states that the Board will not consider

[[Page 667]]

comments on an application that are not received on or before the 
expiration of the comment period. Thus, a commenter who fails to comment 
on an application within the specified comment period (or any extension) 
may be precluded from participating in the consideration of the 
application.
    (2) In cases where a commenter for good cause is unable to send its 
comment within the specified comment period, Sec. 265.2(a)(10) of the 
Board's Rules Regarding Delegation of Authority (12 CFR 265.2(a)(10)) 
allows the Secretary of the Board to grant requests for an extension of 
the period. Under this provision, upon receipt of a request received on 
or before the expiration of the comment period, the Secretary may grant 
a brief extension upon clear demonstration of hardship or other 
meritorious reason for seeking additional time.
    (c) Private meetings. When a timely protest to approval of an 
application is received, the Reserve Bank may arrange a meeting between 
the applicant and the protestant to clarify and narrow the issues, and 
to provide a forum for the resolution of differences between the 
protestant and the applicant. If the Reserve Bank decides that a private 
meeting would be appropriate, the Reserve Bank will arrange a private 
meeting soon after the receipt of a protest and the applicant's 
response, if any, to the protest. In scheduling the meeting, the Reserve 
Bank will consider convenience to the parties with respect to the time 
and place of the meeting. A decision to hold a private meeting will not 
preclude the Reserve Bank or the Board from holding a public meeting or 
other proceeding if it is deemed appropriate.
    (d) Public meetings. The Board's General Counsel (in consultation 
with the Reserve Bank and the directors of other interested divisions of 
the Board) may order that a public meeting or other proceeding be held 
if requested by the applicant or a protestant who files a timely 
protest, or if such a proceeding appears appropriate. In most instances, 
the determination to order a public meeting will be made after a private 
meeting has been held; however, where appropriate a public meeting may 
be convened immediately after receipt of the protest and the applicant's 
response, if any. Additional information may be requested prior to 
making a determination to convene a public meeting. In these cases, a 
determination will be made within ten days from the date all relevant 
information is received. The public meeting will be scheduled as soon as 
possible, but in no event, later than 30 days after the decision to hold 
the proceeding is made. The purpose of the public meeting will be to 
elicit information, to clarify factual issues related to the application 
and to provide an opportunity for interested individuals to provide 
testimony. The Board has adopted the following guidelines to be used for 
convening public meetings, although specific provisions may be altered 
by the General Counsel if circumstances warrant.
    (1) Requesting a public meeting. A meeting may be requested by a 
person or an organization objecting to the application during the 
comment period, and by the applicant during the period within which it 
must respond to comments. Such a request must be timely and in writing.
    (i) A protest does not have to be filed in a legal brief or other 
format in order for a public meeting to be granted. The Community 
Affairs Officer at the Reserve Bank will be available to assist any 
member of the public regarding the types of information generally 
included in protests; the format generally used by protestants; and any 
other specific questions about the procedures of the Federal Reserve 
System regarding protested applications.
    (ii) In general, a protest should identify the protestant, state the 
basis for objection to approval of the application, and provide 
available written evidence to support the objection. Objections to 
approval of an application must relate to the factors that the Board is 
authorized to consider in acting on an application. Generally, these 
factors relate to the financial and managerial resources of the 
companies and banks involved, the effects of the proposal on 
competition, and the convenience and needs of the communities to be 
served by the companies and banks involved. If a public meeting is 
requested, the protest should indicate

[[Page 668]]

that there are members of the public who wish to speak on the issues in 
a public forum.
    (iii) The protest will be transmitted by the Reserve Bank to the 
applicant, and the applicant will generally be allowed eight business 
days to respond in writing to the protest.
    (2) Arranging the public meeting. Public meetings will be arranged 
and presided over by a representative of the Federal Reserve System 
(``Presiding Officer''). In determining the time and place for the 
public meeting, such factors as convenience to the parties, the number 
of people expected to attend the meeting, access to public 
transportation and possible after-hour security problems will be taken 
into account.
    (3) Conducting the public meeting. Prior to the meeting, all 
necessary steps will be taken to ensure that the meeting is conducted 
appropriately, including scheduling of witnesses, submission of written 
materials and other arrangements. In conducting the public meeting the 
Presiding Officer will have the authority and discretion to ensure that 
the meeting proceeds in a fair and orderly manner. Generally, the public 
meeting will consist of opening and closing remarks by the Presiding 
Officer, a presentation by the protestant and a presentation by the 
applicant. An official transcript will be made of the proceedings and 
entered into the record. The conclusion of the public meeting normally 
marks the close of the public portion of the record on the application.
    (4) Notification of Board decision on the application. After a 
decision is made on the application, and the applicant is notified of 
the decision, staff will notify the protestant by telephone. This 
notification will be confirmed promptly in writing. As set forth in 
Sec. 262.3(k) of the Board's Rules of Procedure (12 CFR 262.3(k)) or 
Sec. 265.3 of the Board's Rules Regarding Delegation of Authority (12 
CFR 265.3), a party to the application may request reconsideration of 
the Board's order, or review of the Reserve Bank's decision.

[49 FR 5603, Feb. 14, 1984, as amended at 57 FR 41642, Sept. 11, 1992]



PART 263--RULES OF PRACTICE FOR HEARINGS--Table of Contents




           Subpart A--Uniform Rules of Practice and Procedure

Sec.
263.1  Scope.
263.2  Rules of construction.
263.3  Definitions.
263.4  Authority of the Board.
263.5  Authority of the administrative law judge.
263.6  Appearance and practice in adjudicatory proceedings.
263.7  Good faith certification.
263.8  Conflicts of interest.
263.9  Ex parte communications.
263.10  Filing of papers.
263.11  Service of papers.
263.12  Construction of time limits.
263.13  Change of time limits.
263.14  Witness fees and expenses.
263.15  Opportunity for informal settlement.
263.16  The Board's right to conduct examination.
263.17  Collateral attacks on adjudicatory proceeding.
263.18  Commencement of proceeding and contents of notice.
263.19  Answer.
263.20  Amended pleadings.
263.21  Failure to appear.
263.22  Consolidation and severance of actions.
263.23  Motions.
263.24  Scope of document discovery.
263.25  Request for document discovery from parties.
263.26  Document subpoenas to nonparties.
263.27  Deposition of witness unavailable for hearing.
263.28  Interlocutory review.
263.29  Summary disposition.
263.30  Partial summary disposition.
263.31  Scheduling and prehearing conferences.
263.32  Prehearing submissions.
263.33  Public hearings.
263.34  Hearing subpoenas.
263.35  Conduct of hearings.
263.36  Evidence.
263.37  Proposed findings and conclusions.
263.38  Recommended decision and filing of record.
263.39  Exceptions to recommended decision.
263.40  Review by the Board.
263.41  Stays pending judicial review.

      Subpart B--Board Local Rules Supplementing the Uniform Rules

263.50  Purpose and scope.
263.51  Definitions.
263.52  Address for filing.
263.53  Discovery depositions.

[[Page 669]]

263.54  Delegation to the Office of Financial Institution Adjudication.
263.55  Board as Presiding Officer.
263.56  Initial Licensing Proceedings.

 Subpart C--Rules and Procedures for Assessment and Collection of Civil 
                             Money Penalties

263.60  Scope.
263.61  Opportunity for informal proceeding.
263.62  Relevant considerations for assessment of civil penalty.
263.63  Assessment order.
263.64  Payment of civil penalty.
263.65  Civil penalty inflation adjustments.

 Subpart D--Rules and Procedures Applicable to Suspension or Removal of 
   an Institution-Affiliated Party Where a Felony is Charged or Proven

263.70  Purpose and scope.
263.71  Notice or order of suspension, removal, or prohibition.
263.72  Request for informal hearing.
263.73  Order for informal hearing.
263.74  Decision of the Board.

  Subpart E--Procedures for Issuance and Enforcement of Directives to 
                        Maintain Adequate Capital

263.80  Purpose and scope.
263.81  Definitions.
263.82  Establishment of minimum capital levels.
263.83  Issuance of capital directives.
263.84  Enforcement of directive.
263.85  Establishment of increased capital level for specific 
          institutions.

                  Subpart F--Practice Before the Board

263.90  Scope.
263.91  Censure, suspension or debarment.
263.92  Definitions.
263.93  Eligibility to practice.
263.94  Conduct warranting sanctions.
263.95  Initiation of disciplinary proceeding.
263.96  Conferences.
263.97  Proceedings under this subpart.
263.98  Effect of suspension, debarment or censure.
263.99  Petition for reinstatement.

 Subpart G--Rules Regarding Claims Under the Equal Access to Justice Act

263.100  Authority and scope.
263.101  Standards for awards.
263.102  Prevailing party.
263.103  Eligibility of applicants.
263.104  Application for awards.
263.105  Statement of net worth.
263.106  Measure of awards.
263.107  Statement of fees and expenses.
263.108  Responses to application.
263.109  Further proceedings.
263.110  Recommended decision.
263.111  Action by the Board.

 Subpart H--Issuance and Review of Orders Pursuant to Prompt Corrective 
         Action Provisions of the Federal Deposit Insurance Act

263.201  Scope.
263.202  Directives to take prompt corrective action.
263.203  Procedures for reclassifying a state member bank based on 
          criteria other than capital.
263.204  Order to dismiss a director or senior executive officer.
263.205  Enforcement of directives.

  Subpart I--Submission and Review of Safety and Soundness Compliance 
      Plans and Issuance of Orders To Correct Safety and Soundness 
                              Deficiencies

263.300  Scope.
263.301  Purpose.
263.302  Determination and notification of failure to meet safety and 
          soundness standard and request for compliance plan.
263.303  Filing of safety and soundness compliance plan.
263.304  Issuance of orders to correct deficiencies and to take or 
          refrain from taking other actions.
263.305  Enforcement of orders.

    Authority: 5 U.S.C. 504; 12 U.S.C. 248, 324, 504, 505, 1817(j), 
1818, 1828(c), 1831o, 1831p-1, 1847(b), 1847(d), 1884(b), 1972(2)(F), 
3105, 3107, 3108, 3907, 3909; 15 U.S.C. 21, 78o-4,78o-5, 78u-2; and 28 
U.S.C. 2461 note.

    Source: 56 FR 38052, Aug. 9, 1991, unless otherwise noted.



           Subpart A--Uniform Rules of Practice and Procedure



Sec. 263.1  Scope.

    This subpart prescribes Uniform Rules of practice and procedure 
applicable to adjudicatory proceedings required to be conducted on the 
record after opportunity for hearing under the following statutory 
provisions:
    (a) Cease-and-desist proceedings under section 8(b) of the Federal 
Deposit Insurance Act (``FDIA'') (12 U.S.C. 1818(b));
    (b) Removal and prohibition proceedings under section 8(e) of the 
FDIA (12 U.S.C. 1818(e));

[[Page 670]]

    (c) Change-in-control proceedings under section 7(j)(4) of the FDIA 
(12 U.S.C. 1817(j)(4)) to determine whether the Board of Governors of 
the Federal Reserve System (``Board'') should issue an order to approve 
or disapprove a person's proposed acquisition of a state member bank or 
bank holding company;
    (d) Proceedings under section 15C(c)(2) of the Securities Exchange 
Act of 1934 (``Exchange Act'') (15 U.S.C. 78o-5), to impose sanctions 
upon any government securities broker or dealer or upon any person 
associated or seeking to become associated with a government securities 
broker or dealer for which the Board is the appropriate agency;
    (e) Assessment of civil money penalties by the Board against 
institutions, institution-affiliated parties, and certain other persons 
for which the Board is the appropriate agency for any violation of:
    (1) Any provision of the Bank Holding Company Act of 1956, as 
amended (``BHC Act''), or any order or regulation issued thereunder, 
pursuant to 12 U.S.C. 1847(b) and (d);
    (2) Sections 19, 22, 23A and 23B of the Federal Reserve Act 
(``FRA''), or any regulation or order issued thereunder and certain 
unsafe or unsound practices or breaches of fiduciary duty, pursuant to 
12 U.S.C. 504 and 505;
    (3) Section 9 of the FRA pursuant to 12 U.S.C. 324;
    (4) Section 106(b) of the Bank Holding Company Act Amendments of 
1970 and certain unsafe or unsound practices or breaches of fiduciary 
duty, pursuant to 12 U.S.C. 1972(2)(F);
    (5) Any provision of the Change in Bank Control Act of 1978, as 
amended, or any regulation or order issued thereunder and certain unsafe 
or unsound practices or breaches of fiduciary duty, pursuant to 12 
U.S.C. 1817(j)(16);
    (6) Any provision of the International Lending Supervision Act of 
1983 (``ILSA'') or any rule, regulation or order issued thereunder, 
pursuant to 12 U.S.C. 3909;
    (7) Any provision of the International Banking Act of 1978 (``IBA'') 
or any rule, regulation or order issued thereunder, pursuant to 12 
U.S.C. 3108;
    (8) Certain provisions of the Exchange Act, pursuant to section 21B 
of the Exchange Act (15 U.S.C. 78u-2);
    (9) Section 1120 of the Financial Institutions Reform, Recovery, and 
Enforcement Act of 1989 (12 U.S.C. 3349), or any order or regulation 
issued thereunder;
    (10) The terms of any final or temporary order issued under section 
8 of the FDIA or of any written agreement executed by the Board, the 
terms of any condition imposed in writing by the Board in connection 
with the grant of an application or request, and certain unsafe or 
unsound practices or breaches of fiduciary duty or law or regulation 
pursuant to 12 U.S.C. 1818(i)(2);
    (11) Any provision of law referenced in section 102(f) of the Flood 
Disaster Protection Act of 1973 (42 U.S.C. 4012a(f)) or any order or 
regulation issued thereunder; and
    (12) Any provision of law referenced in 31 U.S.C. 5321 or any order 
or regulation issued thereunder;
    (f) Remedial action under section 102(g) of the Flood Disaster 
Protection Act of 1973 (42 U.S.C. 4012a(g)); and
    (g) This subpart also applies to all other adjudications required by 
statute to be determined on the record after opportunity for an agency 
hearing, unless otherwise specifically provided for in the Local Rules.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20341, May 6, 1996]



Sec. 263.2  Rules of construction.

    For purposes of this subpart:
    (a) Any term in the singular includes the plural, and the plural 
includes the singular, if such use would be appropriate;
    (b) Any use of a masculine, feminine, or neuter gender encompasses 
all three, if such use would be appropriate;
    (c) The term counsel includes a non-attorney representative; and
    (d) Unless the context requires otherwise, a party's counsel of 
record, if any, may, on behalf of that party, take any action required 
to be taken by the party.



Sec. 263.3  Definitions.

    For purposes of this subpart, unless explicitly stated to the 
contrary:

[[Page 671]]

    (a) Administrative law judge means one who presides at an 
administrative hearing under authority set forth at 5 U.S.C. 556.
    (b) Adjudicatory proceeding means a proceeding conducted pursuant to 
these rules and leading to the formulation of a final order other than a 
regulation.
    (c) Decisional employee means any member of the Board's or 
administrative law judge's staff who has not engaged in an investigative 
or prosecutorial role in a proceeding and who may assist the Agency or 
the administrative law judge, respectively, in preparing orders, 
recommended decisions, decisions, and other documents under the Uniform 
Rules.
    (d) Enforcement Counsel means any individual who files a notice of 
appearance as counsel on behalf of the Board in an adjudicatory 
proceeding.
    (e) Final order means an order issued by the Board with or without 
the consent of the affected institution or the institution-affiliated 
party, that has become final, without regard to the pendency of any 
petition for reconsideration or review.
    (f) Institution includes: (1) Any bank as that term is defined in 
section 3(a) of the FDIA (12 U.S.C. 1813(a));
    (2) Any bank holding company or any subsidiary (other than a bank) 
of a bank holding company as those terms are defined in the BHC Act (12 
U.S.C. 1841 et seq.);
    (3) Any organization operating under section 25 of the FRA (12 
U.S.C. 601 et seq.);
    (4) Any foreign bank or company to which section 8 of the IBA (12 
U.S.C. 3106), applies or any subsidiary (other than a bank) thereof; and
    (5) Any Federal agency as that term is defined in section 1(b) of 
the IBA (12 U.S.C. 3101(5)).
    (g) Institution-affiliated party means any institution-affiliated 
party as that term is defined in section 3(u) of the FDIA (12 U.S.C. 
1813(u)).
    (h) Local Rules means those rules promulgated by the Board in this 
part other than subpart A.
    (i) OFIA means the Office of Financial Institution Adjudication, the 
executive body charged with overseeing the administration of 
administrative enforcement proceedings for the Board, the Office of 
Comptroller of the Currency (the OCC), the Federal Deposit Insurance 
Corporation (the FDIC), the Office of Thrift Supervision (the OTS), and 
the National Credit Union Administration (the NCUA).
    (j) Party means the Board and any person named as a party in any 
notice.
    (k) Person means an individual, sole proprietor, partnership, 
corporation, unincorporated association, trust, joint venture, pool, 
syndicate, agency or other entity or organization, including an 
institution as defined in paragraph (f) of this section.
    (l) Respondent means any party other than the Board.
    (m) Uniform Rules means those rules in subpart A of this part that 
are common to the Board, the OCC, the FDIC, the OTS and the NCUA.
    (n) Violation includes any action (alone or with another or others) 
for or toward causing, bringing about, participating in, counseling, or 
aiding or abetting a violation.



Sec. 263.4  Authority of the Board.

    The Board may, at any time during the pendency of a proceeding, 
perform, direct the performance of, or waive performance of, any act 
which could be done or ordered by the administrative law judge.



Sec. 263.5  Authority of the administrative law judge.

    (a) General rule. All proceedings governed by this part shall be 
conducted in accordance with the provisions of chapter 5 of title 5 of 
the United States Code. The administrative law judge shall have all 
powers necessary to conduct a proceeding in a fair and impartial manner 
and to avoid unnecessary delay.
    (b) Powers. The administrative law judge shall have all powers 
necessary to conduct the proceeding in accordance with paragraph (a) of 
this section, including the following powers:
    (1) To administer oaths and affirmations;
    (2) To issue subpoenas, subpoenas duces tecum, and protective 
orders, as authorized by this part, and to quash or modify any such 
subpoenas and orders;

[[Page 672]]

    (3) To receive relevant evidence and to rule upon the admission of 
evidence and offers of proof;
    (4) To take or cause depositions to be taken as authorized by this 
subpart;
    (5) To regulate the course of the hearing and the conduct of the 
parties and their counsel;
    (6) To hold scheduling and/or pre-hearing conferences as set forth 
in Sec. 263.31;
    (7) To consider and rule upon all procedural and other motions 
appropriate in an adjudicatory proceeding, provided that only the Board 
shall have the power to grant any motion to dismiss the proceeding or to 
decide any other motion that results in a final determination of the 
merits of the proceeding;
    (8) To prepare and present to the Board a recommended decision as 
provided herein;
    (9) To recuse himself or herself by motion made by a party or on his 
or her own motion;
    (10) To establish time, place and manner limitations on the 
attendance of the public and the media for any public hearing; and
    (11) To do all other things necessary and appropriate to discharge 
the duties of a presiding officer.



Sec. 263.6  Appearance and practice in adjudicatory proceedings.

    (a) Appearance before the Board or an administrative law judge--(1) 
By attorneys. Any member in good standing of the bar of the highest 
court of any state, commonwealth, possession, territory of the United 
States, or the District of Columbia may represent others before the 
Board if such attorney is not currently suspended or debarred from 
practice before the Board.
    (2) By non-attorneys. An individual may appear on his or her own 
behalf; a member of a partnership may represent the partnership; a duly 
authorized officer, director, or employee of any government unit, 
agency, institution, corporation or authority may represent that unit, 
agency, institution, corporation or authority if such officer, director, 
or employee is not currently suspended or debarred from practice before 
the Board.
    (3) Notice of appearance. Any individual acting as counsel on behalf 
of a party, including the Board, shall file a notice of appearance with 
OFIA at or before the time that individual submits papers or otherwise 
appears on behalf of a party in the adjudicatory proceeding. The notice 
of appearance must include a written declaration that the individual is 
currently qualified as provided in paragraph (a)(1) or (a)(2) of this 
section and is authorized to represent the particular party. By filing a 
notice of appearance on behalf of a party in an adjudicatory proceeding, 
the counsel agrees and represents that he or she is authorized to accept 
service on behalf of the represented party and that, in the event of 
withdrawal from representation, he or she will, if required by the 
administrative law judge, continue to accept service until new counsel 
has filed a notice of appearance or until the represented party 
indicates that he or she will proceed on a pro se basis.
    (b) Sanctions. Dilatory, obstructionist, egregious, contemptuous or 
contumacious conduct at any phase of any adjudicatory proceeding may be 
grounds for exclusion or suspension of counsel from the proceeding.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20341, May 6, 1996]



Sec. 263.7  Good faith certification.

    (a) General requirement. Every filing or submission of record 
following the issuance of a notice shall be signed by at least one 
counsel of record in his or her individual name and shall state that 
counsel's address and telephone number. A party who acts as his or her 
own counsel shall sign his or her individual name and state his or her 
address and telephone number on every filing or submission of record.
    (b) Effect of signature. (1) The signature of counsel or a party 
shall constitute a certification that: the counsel or party has read the 
filing or submission of record; to the best of his or her knowledge, 
information, and belief formed after reasonable inquiry, the filing or 
submission of record is well-grounded in fact and is warranted by 
existing law or a good faith argument for the extension, modification, 
or reversal of existing law; and the filing or

[[Page 673]]

submission of record is not made for any improper purpose, such as to 
harass or to cause unnecessary delay or needless increase in the cost of 
litigation.
    (2) If a filing or submission of record is not signed, the 
administrative law judge shall strike the filing or submission of 
record, unless it is signed promptly after the omission is called to the 
attention of the pleader or movant.
    (c) Effect of making oral motion or argument. The act of making any 
oral motion or oral argument by any counsel or party constitutes a 
certification that to the best of his or her knowledge, information, and 
belief formed after reasonable inquiry, his or her statement is well-
grounded in fact and is warranted by existing law or a good faith 
argument for the extension, modification, or reversal of existing law, 
and is not made for any improper purpose, such as to harass or to cause 
unnecessary delay or needless increase in the cost of litigation.



Sec. 263.8  Conflicts of interest.

    (a) Conflict of interest in representation. No person shall appear 
as counsel for another person in an adjudicatory proceeding if it 
reasonably appears that such representation may be materially limited by 
that counsel's responsibilities to a third person or by the counsel's 
own interests. The administrative law judge may take corrective measures 
at any stage of a proceeding to cure a conflict of interest in 
representation, including the issuance of an order limiting the scope of 
representation or disqualifying an individual from appearing in a 
representative capacity for the duration of the proceeding.
    (b) Certification and waiver. If any person appearing as counsel 
represents two or more parties to an adjudicatory proceeding or also 
represents a non-party on a matter relevant to an issue in the 
proceeding, counsel must certify in writing at the time of filing the 
notice of appearance required by Sec. 263.6(a):
    (1) That the counsel has personally and fully discussed the 
possibility of conflicts of interest with each such party and non-party; 
and
    (2) That each such party and non-party waives any right it might 
otherwise have had to assert any known conflicts of interest or to 
assert any non-material conflicts of interest during the course of the 
proceeding.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20342, May 6, 1996]



Sec. 263.9  Ex parte communications.

    (a) Definition--(1) Ex parte communication means any material oral 
or written communication relevant to the merits of an adjudicatory 
proceeding that was neither on the record nor on reasonable prior notice 
to all parties that takes place between:
    (i) An interested person outside the Board (including such person's 
counsel); and
    (ii) The administrative law judge handling that proceeding, a member 
of the Board, or a decisional employee.
    (2) Exception. A request for status of the proceeding does not 
constitute an ex parte communication.
    (b) Prohibition of ex parte communications. From the time the notice 
is issued by the Board until the date that the Board issues its final 
decision pursuant to Sec. 263.40(c):
    (1) No interested person outside the Federal Reserve System shall 
make or knowingly cause to be made an ex parte communication to a member 
of the Board, the administrative law judge, or a decisional employee; 
and
    (2) A member of the Board, administrative law judge, or decisional 
employee shall not make or knowingly cause to be made to any interested 
person outside the Federal Reserve System any ex parte communication.
    (c) Procedure upon occurrence of ex parte communication. If an ex 
parte communication is received by the administrative law judge, a 
member of the Board or any other person identified in paragraph (a) of 
this section, that person shall cause all such written communications 
(or, if the communication is oral, a memorandum stating the substance of 
the communication) to be placed on the record of the proceeding and 
served on all parties. All other parties to the proceeding shall have an 
opportunity, within ten days of receipt of service of the ex parte 
communication,

[[Page 674]]

to file responses thereto and to recommend any sanctions, in accordance 
with paragraph (d) of this section, that they believe to be appropriate 
under the circumstances.
    (d) Sanctions. Any party or his or her counsel who makes a 
prohibited ex parte communication, or who encourages or solicits another 
to make any such communication, may be subject to any appropriate 
sanction or sanctions imposed by the Board or the administrative law 
judge including, but not limited to, exclusion from the proceedings and 
an adverse ruling on the issue which is the subject of the prohibited 
communication.
    (e) Separation of functions. Except to the extent required for the 
disposition of ex parte matters as authorized by law, the administrative 
law judge may not consult a person or party on any matter relevant to 
the merits of the adjudication, unless on notice and opportunity for all 
parties to participate. An employee or agent engaged in the performance 
of investigative or prosecuting functions for the Board in a case may 
not, in that or a factually related case, participate or advise in the 
decision, recommended decision, or agency review of the recommended 
decision under Sec. 263.40, except as witness or counsel in public 
proceedings.

[56 FR 38052, Aug. 9, 1991, as amended at 59 FR 65245, Dec. 19, 1994]



Sec. 263.10  Filing of papers.

    (a) Filing. Any papers required to be filed, excluding documents 
produced in response to a discovery request pursuant to Secs.  263.25 
and 263.26, shall be filed with OFIA, except as otherwise provided.
    (b) Manner of filing. Unless otherwise specified by the Board or the 
administrative law judge, filing may be accomplished by:
    (1) Personal service;
    (2) Delivering the papers to a reliable commercial courier service, 
overnight delivery service, or to the U.S. Post Office for Express Mail 
delivery;
    (3) Mailing the papers by first class, registered, or certified 
mail; or
    (4) Transmission by electronic media, only if expressly authorized, 
and upon any conditions specified, by the Board or the administrative 
law judge. All papers filed by electronic media shall also concurrently 
be filed in accordance with paragraph (c) of this section.
    (c) Formal requirements as to papers filed--(1) Form. All papers 
filed must set forth the name, address, and telephone number of the 
counsel or party making the filing and must be accompanied by a 
certification setting forth when and how service has been made on all 
other parties. All papers filed must be double-spaced and printed or 
typewritten on 8 1/2 x 11 inch paper, and must be clear and legible.
    (2) Signature. All papers must be dated and signed as provided in 
Sec.  263.7.
    (3) Caption. All papers filed must include at the head thereof, or 
on a title page, the name of the Board and of the filing party, the 
title and docket number of the proceeding, and the subject of the 
particular paper.
    (4) Number of copies. Unless otherwise specified by the Board, or 
the administrative law judge, an original and one copy of all documents 
and papers shall be filed, except that only one copy of transcripts of 
testimony and exhibits shall be filed.



Sec. 263.11  Service of papers.

    (a) By the parties. Except as otherwise provided, a party filing 
papers shall serve a copy upon the counsel of record for all other 
parties to the proceeding so represented, and upon any party not so 
represented.
    (b) Method of service. Except as provided in paragraphs (c)(2) and 
(d) of this section, a serving party shall use one or more of the 
following methods of service:
    (1) Personal service;
    (2) Delivering the papers to a reliable commercial courier service, 
overnight delivery service, or to the U.S. Post Office for Express Mail 
delivery;
    (3) Mailing the papers by first class, registered, or certified 
mail; or
    (4) Transmission by electronic media, only if the parties mutually 
agree. Any papers served by electronic media shall also concurrently be 
served in accordance with the requirements of Sec. 263.10(c).
    (c) By the Board or the administrative law judge. (1) All papers 
required to be served by the Board or the administrative law judge upon 
a party who has

[[Page 675]]

appeared in the proceeding in accordance with Sec. 263.6, shall be 
served by any means specified in paragraph (b) of this section.
    (2) If a party has not appeared in the proceeding in accordance with 
Sec. 263.6, the Board or the administrative law judge shall make service 
by any of the following methods:
    (i) By personal service;
    (ii) If the person to be served is an individual, by delivery to a 
person of suitable age and discretion at the physical location where the 
individual resides or works;
    (iii) If the person to be served is a corporation or other 
association, by delivery to an officer, managing or general agent, or to 
any other agent authorized by appointment or by law to receive service 
and, if the agent is one authorized by statute to receive service and 
the statute so requires, by also mailing a copy to the party;
    (iv) By registered or certified mail addressed to the person's last 
known address; or
    (v) By any other method reasonably calculated to give actual notice.
    (d) Subpoenas. Service of a subpoena may be made:
    (1) By personal service;
    (2) If the person to be served is an individual, by delivery to a 
person of suitable age and discretion at the physical location where the 
individual resides or works;
    (3) By delivery to an agent, which, in the case of a corporation or 
other association, is delivery to an officer, managing or general agent, 
or to any other agent authorized by appointment or by law to receive 
service and, if the agent is one authorized by statute to receive 
service and the statute so requires, by also mailing a copy to the 
party;
    (4) By registered or certified mail addressed to the person's last 
known address; or
    (5) By any other method as is reasonably calculated to give actual 
notice.
    (e) Area of service. Service in any state, territory, possession of 
the United States, or the District of Columbia, on any person or company 
doing business in any state, territory, possession of the United States, 
or the District of Columbia, or on any person as otherwise provided by 
law, is effective without regard to the place where the hearing is held, 
provided that if service is made on a foreign bank in connection with an 
action or proceeding involving one or more of its branches or agencies 
located in any state, territory, possession of the United States, or the 
District of Columbia, service shall be made on at least one branch or 
agency so involved.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20342, May 6, 1996]



Sec. 263.12  Construction of time limits.

    (a) General rule. In computing any period of time prescribed by this 
subpart, the date of the act or event that commences the designated 
period of time is not included. The last day so computed is included 
unless it is a Saturday, Sunday, or Federal holiday. When the last day 
is a Saturday, Sunday, or Federal holiday, the period runs until the end 
of the next day that is not a Saturday, Sunday, or Federal holiday. 
Intermediate Saturdays, Sundays, and Federal holidays are included in 
the computation of time. However, when the time period within which an 
act is to be performed is ten days or less, not including any additional 
time allowed for in paragraph (c) of this section, intermediate 
Saturdays, Sundays, and Federal holidays are not included.
    (b) When papers are deemed to be filed or served. (1) Filing and 
service are deemed to be effective:
    (i) In the case of personal service or same-day commercial courier 
delivery, upon actual service;
    (ii) In the case of overnight commercial delivery service, U.S. 
Express Mail delivery, or first class, registered, or certified mail, 
upon deposit in or delivery to an appropriate point of collection;
    (iii) In the case of transmission by electronic media, as specified 
by the authority receiving the filing, in the case of filing, and as 
agreed among the parties, in the case of service.
    (2) The effective filing and service dates specified in paragraph 
(b)(1) of this section may be modified by the Board or administrative 
law judge in the case of filing or by agreement of the parties in the 
case of service.
    (c) Calculation of time for service and filing of responsive papers. 
Whenever a

[[Page 676]]

time limit is measured by a prescribed period from the service of any 
notice or paper, the applicable time limits are calculated as follows:
    (1) If service is made by first class, registered, or certified 
mail, add three calendar days to the prescribed period;
    (2) If service is made by express mail or overnight delivery 
service, add one calendar day to the prescribed period; or
    (3) If service is made by electronic media transmission, add one 
calendar day to the prescribed period, unless otherwise determined by 
the Board or the administrative law judge in the case of filing, or by 
agreement among the parties in the case of service.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20342, May 6, 1996]



Sec. 263.13  Change of time limits.

    Except as otherwise provided by law, the administrative law judge 
may, for good cause shown, extend the time limits prescribed by the 
Uniform Rules or by any notice or order issued in the proceedings. After 
the referral of the case to the Board pursuant to Sec.  263.38, the 
Board may grant extensions of the time limits for good cause shown. 
Extensions may be granted at the motion of a party after notice and 
opportunity to respond is afforded all non-moving parties or sua sponte 
by the Board or the administrative law judge.



Sec. 263.14  Witness fees and expenses.

    Witnesses subpoenaed for testimony or depositions shall be paid the 
same fees for attendance and mileage as are paid in the United States 
district courts in proceedings in which the United States is a party, 
provided that, in the case of a discovery subpoena addressed to a party, 
no witness fees or mileage need be paid. Fees for witnesses shall be 
tendered in advance by the party requesting the subpoena, except that 
fees and mileage need not be tendered in advance where the Board is the 
party requesting the subpoena. The Board shall not be required to pay 
any fees to, or expenses of, any witness not subpoenaed by the Board.



Sec. 263.15  Opportunity for informal settlement.

    Any respondent may, at any time in the proceeding, unilaterally 
submit to Enforcement Counsel written offers or proposals for settlement 
of a proceeding, without prejudice to the rights of any of the parties. 
No such offer or proposal shall be made to any Board representative 
other than Enforcement Counsel. Submission of a written settlement offer 
does not provide a basis for adjourning or otherwise delaying all or any 
portion of a proceeding under this part. No settlement offer or 
proposal, or any subsequent negotiation or resolution, is admissible as 
evidence in any proceeding.



Sec. 263.16  The Board's right to conduct examination.

    Nothing contained in this subpart limits in any manner the right of 
the Board or any Federal Reserve Bank to conduct any examination, 
inspection, or visitation of any institution or institution-affiliated 
party, or the right of the Board or any Federal Reserve Bank to conduct 
or continue any form of investigation authorized by law.

[56 FR 38052, Aug. 9, 1991; 56 FR 60056, Nov. 27, 1991]



Sec. 263.17  Collateral attacks on adjudicatory proceeding.

    If an interlocutory appeal or collateral attack is brought in any 
court concerning all or any part of an adjudicatory proceeding, the 
challenged adjudicatory proceeding shall continue without regard to the 
pendency of that court proceeding. No default or other failure to act as 
directed in the adjudicatory proceeding within the times prescribed in 
this subpart shall be excused based on the pendency before any court of 
any interlocutory appeal or collateral attack.



Sec. 263.18  Commencement of proceeding and contents of notice.

    (a) Commencement of proceeding. (1)(i) Except for change-in-control 
proceedings under section 7(j)(4) of the FDIA (12 U.S.C. 1817(j)(4)), a 
proceeding governed by this subpart is commenced by issuance of a notice 
by the Board.
    (ii) The notice must be served by the Board upon the respondent and 
given

[[Page 677]]

to any other appropriate financial institution supervisory authority 
where required by law.
    (iii) The notice must be filed with OFIA.
    (2) Change-in-control proceedings under section 7(j)(4) of the FDIA 
(12 U.S.C. 1817(j)(4)) commence with the issuance of an order by the 
Board.
    (b) Contents of notice. The notice must set forth:
    (1) The legal authority for the proceeding and for the Board's 
jurisdiction over the proceeding;
    (2) A statement of the matters of fact or law showing that the Board 
is entitled to relief;
    (3) A proposed order or prayer for an order granting the requested 
relief;
    (4) The time, place, and nature of the hearing as required by law or 
regulation;
    (5) The time within which to file an answer as required by law or 
regulation;
    (6) The time within which to request a hearing as required by law or 
regulation; and
    (7) That the answer and/or request for a hearing shall be filed with 
OFIA.



Sec. 263.19  Answer.

    (a) When. Within 20 days of service of the notice, respondent shall 
file an answer as designated in the notice. In a civil money penalty 
proceeding, respondent shall also file a request for a hearing within 20 
days of service of the notice.
    (b) Content of answer. An answer must specifically respond to each 
paragraph or allegation of fact contained in the notice and must admit, 
deny, or state that the party lacks sufficient information to admit or 
deny each allegation of fact. A statement of lack of information has the 
effect of a denial. Denials must fairly meet the substance of each 
allegation of fact denied; general denials are not permitted. When a 
respondent denies part of an allegation, that part must be denied and 
the remainder specifically admitted. Any allegation of fact in the 
notice which is not denied in the answer must be deemed admitted for 
purposes of the proceeding. A respondent is not required to respond to 
the portion of a notice that constitutes the prayer for relief or 
proposed order. The answer must set forth affirmative defenses, if any, 
asserted by the respondent.
    (c) Default--(1) Effect of failure to answer. Failure of a 
respondent to file an answer required by this section within the time 
provided constitutes a waiver of his or her right to appear and contest 
the allegations in the notice. If no timely answer is filed, Enforcement 
Counsel may file a motion for entry of an order of default. Upon a 
finding that no good cause has been shown for the failure to file a 
timely answer, the administrative law judge shall file with the Board a 
recommended decision containing the findings and the relief sought in 
the notice. Any final order issued by the Board based upon a 
respondent's failure to answer is deemed to be an order issued upon 
consent.
    (2) Effect of failure to request a hearing in civil money penalty 
proceedings. If respondent fails to request a hearing as required by law 
within the time provided, the notice of assessment constitutes a final 
and unappealable order.



Sec. 263.20  Amended pleadings.

    (a) Amendments. The notice or answer may be amended or supplemented 
at any stage of the proceeding. The respondent must answer an amended 
notice within the time remaining for the respondent's answer to the 
original notice, or within ten days after service of the amended notice, 
whichever period is longer, unless the Board or administrative law judge 
orders otherwise for good cause.
    (b) Amendments to conform to the evidence. When issues not raised in 
the notice or answer are tried at the hearing by express or implied 
consent of the parties, they will be treated in all respects as if they 
had been raised in the notice or answer, and no formal amendments are 
required. If evidence is objected to at the hearing on the ground that 
it is not within the issues raised by the notice or answer, the 
administrative law judge may admit the evidence when admission is likely 
to assist in adjudicating the merits of the action and the objecting 
party fails to satisfy the administrative law judge that the admission 
of such evidence would unfairly prejudice that party's action or defense 
upon the merits. The

[[Page 678]]

administrative law judge may grant a continuance to enable the objecting 
party to meet such evidence.

[61 FR 20342, May 6, 1996]



Sec. 263.21  Failure to appear.

    Failure of a respondent to appear in person at the hearing or by a 
duly authorized counsel constitutes a waiver of respondent's right to a 
hearing and is deemed an admission of the facts as alleged and consent 
to the relief sought in the notice. Without further proceedings or 
notice to the respondent, the administrative law judge shall file with 
the Board a recommended decision containing the findings and the relief 
sought in the notice.



Sec. 263.22  Consolidation and severance of actions.

    (a) Consolidation. (1) On the motion of any party, or on the 
administrative law judge's own motion, the administrative law judge may 
consolidate, for some or all purposes, any two or more proceedings, if 
each such proceeding involves or arises out of the same transaction, 
occurrence or series of transactions or occurrences, or involves at 
least one common respondent or a material common question of law or 
fact, unless such consolidation would cause unreasonable delay or 
injustice.
    (2) In the event of consolidation under paragraph (a)(1) of this 
section, appropriate adjustment to the prehearing schedule shall be made 
to avoid unnecessary expense, inconvenience, or delay.
    (b) Severance. The administrative law judge may, upon the motion of 
any party, sever the proceeding for separate resolution of the matter as 
to any respondent only if the administrative law judge finds that:
    (1) Undue prejudice or injustice to the moving party would result 
from not severing the proceeding; and
    (2) Such undue prejudice or injustice would outweigh the interests 
of judicial economy and expedition in the complete and final resolution 
of the proceeding.



Sec. 263.23  Motions.

    (a) In writing. (1) Except as otherwise provided herein, an 
application or request for an order or ruling must be made by written 
motion.
    (2) All written motions must state with particularity the relief 
sought and must be accompanied by a proposed order.
    (3) No oral argument may be held on written motions except as 
otherwise directed by the administrative law judge. Written memoranda, 
briefs, affidavits or other relevant material or documents may be filed 
in support of or in opposition to a motion.
    (b) Oral motions. A motion may be made orally on the record unless 
the administrative law judge directs that such motion be reduced to 
writing.
    (c) Filing of motions. Motions must be filed with the administrative 
law judge, except that following the filing of the recommended decision, 
motions must be filed with the Board.
    (d) Responses. (1) Except as otherwise provided herein, within ten 
days after service of any written motion, or within such other period of 
time as may be established by the administrative law judge or the Board, 
any party may file a written response to a motion. The administrative 
law judge shall not rule on any oral or written motion before each party 
has had an opportunity to file a response.
    (2) The failure of a party to oppose a written motion or an oral 
motion made on the record is deemed a consent by that party to the entry 
of an order substantially in the form of the order accompanying the 
motion.
    (e) Dilatory motions. Frivolous, dilatory or repetitive motions are 
prohibited. The filing of such motions may form the basis for sanctions.
    (f) Dispositive motions. Dispositive motions are governed by 
Secs. 263.29 and 263.30.



Sec. 263.24  Scope of document discovery.

    (a) Limits on discovery. (1) Subject to the limitations set out in 
paragraphs (b), (c), and (d) of this section, a party to a proceeding 
under this subpart may obtain document discovery by serving a written 
request to produce documents. For purposes of a request to produce 
documents, the term ``documents'' may be defined to include drawings, 
graphs, charts, photographs, recordings, data stored in electronic

[[Page 679]]

form, and other data compilations from which information can be 
obtained, or translated, if necessary, by the parties through detection 
devices into reasonably usable form, as well as written material of all 
kinds.
    (2) Discovery by use of deposition is governed by Sec. 263.53 of 
subpart B of this part.
    (3) Discovery by use of interrogatories is not permitted.
    (b) Relevance. A party may obtain document discovery regarding any 
matter, not privileged, that has material relevance to the merits of the 
pending action. Any request to produce documents that calls for 
irrelevant material, that is unreasonable, oppressive, excessive in 
scope, unduly burdensome, or repetitive of previous requests, or that 
seeks to obtain privileged documents will be denied or modified. A 
request is unreasonable, oppressive, excessive in scope or unduly 
burdensome if, among other things, it fails to include justifiable 
limitations on the time period covered and the geographic locations to 
be searched, the time provided to respond in the request is inadequate, 
or the request calls for copies of documents to be delivered to the 
requesting party and fails to include the requestor's written agreement 
to pay in advance for the copying, in accordance with Sec. 263.25.
    (c) Privileged matter. Privileged documents are not discoverable. 
Privileges include the attorney-client privilege, work-product 
privilege, any government's or government agency's deliberative-process 
privilege, and any other privileges the Constitution, any applicable act 
of Congress, or the principles of common law provide.
    (d) Time limits. All discovery, including all responses to discovery 
requests, shall be completed at least 20 days prior to the date 
scheduled for the commencement of the hearing. No exceptions to this 
time limit shall be permitted, unless the administrative law judge finds 
on the record that good cause exists for waiving the requirements of 
this paragraph.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20342, May 6, 1996]



Sec. 263.25  Request for document discovery from parties.

    (a) General rule. Any party may serve on any other party a request 
to produce for inspection any discoverable documents that are in the 
possession, custody, or control of the party upon whom the request is 
served. The request must identify the documents to be produced either by 
individual item or by category, and must describe each item and category 
with reasonable particularity. Documents must be produced as they are 
kept in the usual course of business or must be organized to correspond 
with the categories in the request.
    (b) Production or copying. The request must specify a reasonable 
time, place, and manner for production and performing any related acts. 
In lieu of inspecting the documents, the requesting party may specify 
that all or some of the responsive documents be copied and the copies 
delivered to the requesting party. If copying of fewer than 250 pages is 
requested, the party to whom the request is addressed shall bear the 
cost of copying and shipping charges. If a party requests 250 pages or 
more of copying, the requesting party shall pay for the copying and 
shipping charges. Copying charges are the current per-page copying rate 
imposed by 12 CFR Part 261 implementing the Freedom of Information Act 
(5 U.S.C. 552). The party to whom the request is addressed may require 
payment in advance before producing the documents.
    (c) Obligation to update responses. A party who has responded to a 
discovery request with a response that was complete when made is not 
required to supplement the response to include documents thereafter 
acquired, unless the responding party learns that:
    (1) The response was materially incorrect when made; or
    (2) The response, though correct when made, is no longer true and a 
failure to amend the response is, in substance, a knowing concealment.
    (d) Motions to limit discovery. (1) Any party that objects to a 
discovery request may, within ten days of being served with such 
request, file a motion in accordance with the provisions of Sec. 263.23 
to strike or otherwise limit the request. If an objection is made to 
only

[[Page 680]]

a portion of an item or category in a request, the portion objected to 
shall be specified. Any objections not made in accordance with this 
paragraph and Sec. 263.23 are waived.
    (2) The party who served the request that is the subject of a motion 
to strike or limit may file a written response within five days of 
service of the motion. No other party may file a response.
    (e) Privilege. At the time other documents are produced, the 
producing party must reasonably identify all documents withheld on the 
grounds of privilege and must produce a statement of the basis for the 
assertion of privilege. When similar documents that are protected by 
deliberative process, attorney-work-product, or attorney-client 
privilege are voluminous, these documents may be identified by category 
instead of by individual document. The administrative law judge retains 
discretion to determine when the identification by category is 
insufficient.
    (f) Motions to compel production. (1) If a party withholds any 
documents as privileged or fails to comply fully with a discovery 
request, the requesting party may, within ten days of the assertion of 
privilege or of the time the failure to comply becomes known to the 
requesting party, file a motion in accordance with the provisions of 
Sec. 263.23 for the issuance of a subpoena compelling production.
    (2) The party who asserted the privilege or failed to comply with 
the request may file a written response to a motion to compel within 
five days of service of the motion. No other party may file a response.
    (g) Ruling on motions. After the time for filing responses pursuant 
to this section has expired, the administrative law judge shall rule 
promptly on all motions filed pursuant to this section. If the 
administrative law judge determines that a discovery request, or any of 
its terms, calls for irrelevant material, is unreasonable, oppressive, 
excessive in scope, unduly burdensome, or repetitive of previous 
requests, or seeks to obtain privileged documents, he or she may deny or 
modify the request, and may issue appropriate protective orders, upon 
such conditions as justice may require. The pendency of a motion to 
strike or limit discovery or to compel production is not a basis for 
staying or continuing the proceeding, unless otherwise ordered by the 
administrative law judge. Notwithstanding any other provision in this 
part, the administrative law judge may not release, or order a party to 
produce, documents withheld on grounds of privilege if the party has 
stated to the administrative law judge its intention to file a timely 
motion for interlocutory review of the administrative law judge's order 
to produce the documents, and until the motion for interlocutory review 
has been decided.
    (h) Enforcing discovery subpoenas. If the administrative law judge 
issues a subpoena compelling production of documents by a party, the 
subpoenaing party may, in the event of noncompliance and to the extent 
authorized by applicable law, apply to any appropriate United States 
district court for an order requiring compliance with the subpoena. A 
party's right to seek court enforcement of a subpoena shall not in any 
manner limit the sanctions that may be imposed by the administrative law 
judge against a party who fails to produce subpoenaed documents.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20343, May 6, 1996]



Sec. 263.26  Document subpoenas to nonparties.

    (a) General rules. (1) Any party may apply to the administrative law 
judge for the issuance of a document discovery subpoena addressed to any 
person who is not a party to the proceeding. The application must 
contain a proposed document subpoena and a brief statement showing the 
general relevance and reasonableness of the scope of documents sought. 
The subpoenaing party shall specify a reasonable time, place, and manner 
for making production in response to the document subpoena.
    (2) A party shall only apply for a document subpoena under this 
section within the time period during which such party could serve a 
discovery request under Sec. 263.24(d). The party obtaining the document 
subpoena is responsible for serving it on the subpoenaed person and for 
serving copies on

[[Page 681]]

all parties. Document subpoenas may be served in any state, territory, 
or possession of the United States, the District of Columbia, or as 
otherwise provided by law.
    (3) The administrative law judge shall promptly issue any document 
subpoena requested pursuant to this section. If the administrative law 
judge determines that the application does not set forth a valid basis 
for the issuance of the subpoena, or that any of its terms are 
unreasonable, oppressive, excessive in scope, or unduly burdensome, he 
or she may refuse to issue the subpoena or may issue it in a modified 
form upon such conditions as may be consistent with the Uniform Rules.
    (b) Motion to quash or modify. (1) Any person to whom a document 
subpoena is directed may file a motion to quash or modify such subpoena, 
accompanied by a statement of the basis for quashing or modifying the 
subpoena. The movant shall serve the motion on all parties, and any 
party may respond to such motion within ten days of service of the 
motion.
    (2) Any motion to quash or modify a document subpoena must be filed 
on the same basis, including the assertion of privilege, upon which a 
party could object to a discovery request under Sec. 263.25(d), and 
during the same time limits during which such an objection could be 
filed.
    (c) Enforcing document subpoenas. If a subpoenaed person fails to 
comply with any subpoena issued pursuant to this section or any order of 
the administrative law judge which directs compliance with all or any 
portion of a document subpoena, the subpoenaing party or any other 
aggrieved party may, to the extent authorized by applicable law, apply 
to an appropriate United States district court for an order requiring 
compliance with so much of the document subpoena as the administrative 
law judge has not quashed or modified. A party's right to seek court 
enforcement of a document subpoena shall in no way limit the sanctions 
that may be imposed by the administrative law judge on a party who 
induces a failure to comply with subpoenas issued under this section.



Sec. 263.27  Deposition of witness unavailable for hearing.

    (a) General rules. (1) If a witness will not be available for the 
hearing, a party desiring to preserve that witness's testimony for the 
record may apply in accordance with the procedures set forth in 
paragraph (a)(2) of this section, to the administrative law judge for 
the issuance of a subpoena, including a subpoena duces tecum, requiring 
the attendance of the witness at a deposition. The administrative law 
judge may issue a deposition subpoena under this section upon a showing 
that:
    (i) The witness will be unable to attend or may be prevented from 
attending the hearing because of age, sickness or infirmity, or will 
otherwise be unavailable;
    (ii) The witness's unavailability was not procured or caused by the 
subpoenaing party;
    (iii) The testimony is reasonably expected to be material; and
    (iv) Taking the deposition will not result in any undue burden to 
any other party and will not cause undue delay of the proceeding.
    (2) The application must contain a proposed deposition subpoena and 
a brief statement of the reasons for the issuance of the subpoena. The 
subpoena must name the witness whose deposition is to be taken and 
specify the time and place for taking the deposition. A deposition 
subpoena may require the witness to be deposed at any place within the 
country in which that witness resides or has a regular place of 
employment or such other convenient place as the administrative law 
judge shall fix.
    (3) Any requested subpoena that sets forth a valid basis for its 
issuance must be promptly issued, unless the administrative law judge on 
his or her own motion, requires a written response or requires 
attendance at a conference concerning whether the requested subpoena 
should be issued.
    (4) The party obtaining a deposition subpoena is responsible for 
serving it on the witness and for serving copies on all parties. Unless 
the administrative law judge orders otherwise, no deposition under this 
section shall be taken on fewer than ten days' notice to the witness and 
all parties. Deposition

[[Page 682]]

subpoenas may be served in any state, territory, possession of the 
United States, or the District of Columbia, on any person or company 
doing business in any state, territory, possession of the United States, 
or the District of Columbia, or as otherwise permitted by law.
    (b) Objections to deposition subpoenas. (1) The witness and any 
party who has not had an opportunity to oppose a deposition subpoena 
issued under this section may file a motion with the administrative law 
judge to quash or modify the subpoena prior to the time for compliance 
specified in the subpoena, but not more than ten days after service of 
the subpoena.
    (2) A statement of the basis for the motion to quash or modify a 
subpoena issued under this section must accompany the motion. The motion 
must be served on all parties.
    (c) Procedure upon deposition. (1) Each witness testifying pursuant 
to a deposition subpoena must be duly sworn, and each party shall have 
the right to examine the witness. Objections to questions or documents 
must be in short form, stating the grounds for the objection. Failure to 
object to questions or documents is not deemed a waiver except where the 
ground for the objection might have been avoided if the objection had 
been timely presented. All questions, answers, and objections must be 
recorded.
    (2) Any party may move before the administrative law judge for an 
order compelling the witness to answer any questions the witness has 
refused to answer or submit any evidence the witness has refused to 
submit during the deposition.
    (3) The deposition must be subscribed by the witness, unless the 
parties and the witness, by stipulation, have waived the signing, or the 
witness is ill, cannot be found, or has refused to sign. If the 
deposition is not subscribed by the witness, the court reporter taking 
the deposition shall certify that the transcript is a true and complete 
transcript of the deposition.
    (d) Enforcing subpoenas. If a subpoenaed person fails to comply with 
any order of the administrative law judge which directs compliance with 
all or any portion of a deposition subpoena under paragraph (b) or 
(c)(3) of this section, the subpoenaing party or other aggrieved party 
may, to the extent authorized by applicable law, apply to an appropriate 
United States district court for an order requiring compliance with the 
portions of the subpoena that the administrative law judge has ordered 
enforced. A party's right to seek court enforcement of a deposition 
subpoena in no way limits the sanctions that may be imposed by the 
administrative law judge on a party who fails to comply with, or 
procures a failure to comply with, a subpoena issued under this section.



Sec. 263.28  Interlocutory review.

    (a) General rule. The Board may review a ruling of the 
administrative law judge prior to the certification of the record to the 
Board only in accordance with the procedures set forth in this section 
and Sec. 263.23.
    (b) Scope of review. The Board may exercise interlocutory review of 
a ruling of the administrative law judge if the Board finds that:
    (1) The ruling involves a controlling question of law or policy as 
to which substantial grounds exist for a difference of opinion;
    (2) Immediate review of the ruling may materially advance the 
ultimate termination of the proceeding;
    (3) Subsequent modification of the ruling at the conclusion of the 
proceeding would be an inadequate remedy; or
    (4) Subsequent modification of the ruling would cause unusual delay 
or expense.
    (c) Procedure. Any request for interlocutory review shall be filed 
by a party with the administrative law judge within ten days of his or 
her ruling and shall otherwise comply with Sec. 263.23. Any party may 
file a response to a request for interlocutory review in accordance with 
Sec. 263.23(d). Upon the expiration of the time for filing all 
responses, the administrative law judge shall refer the matter to the 
Board for final disposition.
    (d) Suspension of proceeding. Neither a request for interlocutory 
review nor any disposition of such a request by the Board under this 
section suspends

[[Page 683]]

or stays the proceeding unless otherwise ordered by the administrative 
law judge or the Board.



Sec. 263.29  Summary disposition.

    (a) In general. The administrative law judge shall recommend that 
the Board issue a final order granting a motion for summary disposition 
if the undisputed pleaded facts, admissions, affidavits, stipulations, 
documentary evidence, matters as to which official notice may be taken, 
and any other evidentiary materials properly submitted in connection 
with a motion for summary disposition show that:
    (1) There is no genuine issue as to any material fact; and
    (2) The moving party is entitled to a decision in its favor as a 
matter of law.
    (b) Filing of motions and responses. (1) Any party who believes that 
there is no genuine issue of material fact to be determined and that he 
or she is entitled to a decision as a matter of law may move at any time 
for summary disposition in its favor of all or any part of the 
proceeding. Any party, within 20 days after service of such a motion, or 
within such time period as allowed by the administrative law judge, may 
file a response to such motion.
    (2) A motion for summary disposition must be accompanied by a 
statement of the material facts as to which the moving party contends 
there is no genuine issue. Such motion must be supported by documentary 
evidence, which may take the form of admissions in pleadings, 
stipulations, depositions, investigatory depositions, transcripts, 
affidavits and any other evidentiary materials that the moving party 
contends support his or her position. The motion must also be 
accompanied by a brief containing the points and authorities in support 
of the contention of the moving party. Any party opposing a motion for 
summary disposition must file a statement setting forth those material 
facts as to which he or she contends a genuine dispute exists. Such 
opposition must be supported by evidence of the same type as that 
submitted with the motion for summary disposition and a brief containing 
the points and authorities in support of the contention that summary 
disposition would be inappropriate.
    (c) Hearing on motion. At the request of any party or on his or her 
own motion, the administrative law judge may hear oral argument on the 
motion for summary disposition.
    (d) Decision on motion. Following receipt of a motion for summary 
disposition and all responses thereto, the administrative law judge 
shall determine whether the moving party is entitled to summary 
disposition. If the administrative law judge determines that summary 
disposition is warranted, the administrative law judge shall submit a 
recommended decision to that effect to the Board. If the administrative 
law judge finds that no party is entitled to summary disposition, he or 
she shall make a ruling denying the motion.



Sec. 263.30  Partial summary disposition.

    If the administrative law judge determines that a party is entitled 
to summary disposition as to certain claims only, he or she shall defer 
submitting a recommended decision as to those claims. A hearing on the 
remaining issues must be ordered. Those claims for which the 
administrative law judge has determined that summary disposition is 
warranted will be addressed in the recommended decision filed at the 
conclusion of the hearing.



Sec. 263.31  Scheduling and prehearing conferences.

    (a) Scheduling conference. Within 30 days of service of the notice 
or order commencing a proceeding or such other time as parties may 
agree, the administrative law judge shall direct counsel for all parties 
to meet with him or her in person at a specified time and place prior to 
the hearing or to confer by telephone for the purpose of scheduling the 
course and conduct of the proceeding. This meeting or telephone 
conference is called a ``scheduling conference.'' The identification of 
potential witnesses, the time for and manner of discovery, and the 
exchange of any prehearing materials including witness lists, statements 
of issues, stipulations, exhibits and any other materials may also be 
determined at the scheduling conference.
    (b) Prehearing conferences. The administrative law judge may, in 
addition to the scheduling conference, on his or

[[Page 684]]

her own motion or at the request of any party, direct counsel for the 
parties to meet with him or her (in person or by telephone) at a 
prehearing conference to address any or all of the following:
    (1) Simplification and clarification of the issues;
    (2) Stipulations, admissions of fact, and the contents, authenticity 
and admissibility into evidence of documents;
    (3) Matters of which official notice may be taken;
    (4) Limitation of the number of witnesses;
    (5) Summary disposition of any or all issues;
    (6) Resolution of discovery issues or disputes;
    (7) Amendments to pleadings; and
    (8) Such other matters as may aid in the orderly disposition of the 
proceeding.
    (c) Transcript. The administrative law judge, in his or her 
discretion, may require that a scheduling or prehearing conference be 
recorded by a court reporter. A transcript of the conference and any 
materials filed, including orders, becomes part of the record of the 
proceeding. A party may obtain a copy of the transcript at his or her 
expense.
    (d) Scheduling or prehearing orders. At or within a reasonable time 
following the conclusion of the scheduling conference or any prehearing 
conference, the administrative law judge shall serve on each party an 
order setting forth any agreements reached and any procedural 
determinations made.



Sec. 263.32  Prehearing submissions.

    (a) Within the time set by the administrative law judge, but in no 
case later than 14 days before the start of the hearing, each party 
shall serve on every other party, his or her:
    (1) Prehearing statement;
    (2) Final list of witnesses to be called to testify at the hearing, 
including name and address of each witness and a short summary of the 
expected testimony of each witness;
    (3) List of the exhibits to be introduced at the hearing along with 
a copy of each exhibit; and
    (4) Stipulations of fact, if any.
    (b) Effect of failure to comply. No witness may testify and no 
exhibits may be introduced at the hearing if such witness or exhibit is 
not listed in the prehearing submissions pursuant to paragraph (a) of 
this section, except for good cause shown.



Sec. 263.33  Public hearings.

    (a) General rule. All hearings shall be open to the public, unless 
the Board, in the Board's discretion, determines that holding an open 
hearing would be contrary to the public interest. Within 20 days of 
service of the notice or, in the case of change-in-control proceedings 
under section 7(j)(4) of the FDIA (12 U.S.C. 1817(j)(4)), within 20 days 
from service of the hearing order, any respondent may file with the 
Board a request for a private hearing, and any party may file a reply to 
such a request. A party must serve on the administrative law judge a 
copy of any request or reply the party files with the Board. The form 
of, and procedure for, these requests and replies are governed by 
Sec. 263.23. A party's failure to file a request or a reply constitutes 
a waiver of any objections regarding whether the hearing will be public 
or private.
    (b) Filing document under seal. Enforcement Counsel, in his or her 
discretion, may file any document or part of a document under seal if 
disclosure of the document would be contrary to the public interest. The 
administrative law judge shall take all appropriate steps to preserve 
the confidentiality of such documents or parts thereof, including 
closing portions of the hearing to the public.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20343, May 6, 1996]



Sec. 263.34  Hearing subpoenas.

    (a) Issuance. (1) Upon application of a party showing general 
relevance and reasonableness of scope of the testimony or other evidence 
sought, the administrative law judge may issue a subpoena or a subpoena 
duces tecum requiring the attendance of a witness at the hearing or the 
production of documentary or physical evidence at the hearing. The 
application for a hearing subpoena must also contain a proposed subpoena 
specifying the attendance of a witness or the production of evidence 
from any state, territory, or possession

[[Page 685]]

of the United States, the District of Columbia, or as otherwise provided 
by law at any designated place where the hearing is being conducted. The 
party making the application shall serve a copy of the application and 
the proposed subpoena on every other party.
    (2) A party may apply for a hearing subpoena at any time before the 
commencement of a hearing. During a hearing, a party may make an 
application for a subpoena orally on the record before the 
administrative law judge.
    (3) The administrative law judge shall promptly issue any hearing 
subpoena requested pursuant to this section. If the administrative law 
judge determines that the application does not set forth a valid basis 
for the issuance of the subpoena, or that any of its terms are 
unreasonable, oppressive, excessive in scope, or unduly burdensome, he 
or she may refuse to issue the subpoena or may issue it in a modified 
form upon any conditions consistent with this subpart. Upon issuance by 
the administrative law judge, the party making the application shall 
serve the subpoena on the person named in the subpoena and on each 
party.
    (b) Motion to quash or modify. (1) Any person to whom a hearing 
subpoena is directed or any party may file a motion to quash or modify 
the subpoena, accompanied by a statement of the basis for quashing or 
modifying the subpoena. The movant must serve the motion on each party 
and on the person named in the subpoena. Any party may respond to the 
motion within ten days of service of the motion.
    (2) Any motion to quash or modify a hearing subpoena must be filed 
prior to the time specified in the subpoena for compliance, but not more 
than ten days after the date of service of the subpoena upon the movant.
    (c) Enforcing subpoenas. If a subpoenaed person fails to comply with 
any subpoena issued pursuant to this section or any order of the 
administrative law judge which directs compliance with all or any 
portion of a document subpoena, the subpoenaing party or any other 
aggrieved party may seek enforcement of the subpoena pursuant to 
Sec. 263.26(c).

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20343, May 6, 1996]



Sec. 263.35  Conduct of hearings.

    (a) General rules. (1) Hearings shall be conducted so as to provide 
a fair and expeditious presentation of the relevant disputed issues. 
Each party has the right to present its case or defense by oral and 
documentary evidence and to conduct such cross examination as may be 
required for full disclosure of the facts.
    (2) Order of hearing. Enforcement Counsel shall present its case-in-
chief first, unless otherwise ordered by the administrative law judge, 
or unless otherwise expressly specified by law or regulation. 
Enforcement Counsel shall be the first party to present an opening 
statement and a closing statement, and may make a rebuttal statement 
after the respondent's closing statement. If there are multiple 
respondents, respondents may agree among themselves as to their order of 
presentation of their cases, but if they do not agree the administrative 
law judge shall fix the order.
    (3) Examination of witnesses. Only one counsel for each party may 
conduct an examination of a witness, except that in the case of 
extensive direct examination, the administrative law judge may permit 
more than one counsel for the party presenting the witness to conduct 
the examination. A party may have one counsel conduct the direct 
examination and another counsel conduct re-direct examination of a 
witness, or may have one counsel conduct the cross examination of a 
witness and another counsel conduct the re-cross examination of a 
witness.
    (4) Stipulations. Unless the administrative law judge directs 
otherwise, all stipulations of fact and law previously agreed upon by 
the parties, and all documents, the admissibility of which have been 
previously stipulated, will be admitted into evidence upon commencement 
of the hearing.
    (b) Transcript. The hearing must be recorded and transcribed. The 
reporter will make the transcript available to any party upon payment by 
that party

[[Page 686]]

to the reporter of the cost of the transcript. The administrative law 
judge may order the record corrected, either upon motion to correct, 
upon stipulation of the parties, or following notice to the parties upon 
the administrative law judge's own motion.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20343, May 6, 1996]



Sec. 263.36  Evidence.

    (a) Admissibility. (1) Except as is otherwise set forth in this 
section, relevant, material, and reliable evidence that is not unduly 
repetitive is admissible to the fullest extent authorized by the 
Administrative Procedure Act and other applicable law.
    (2) Evidence that would be admissible under the Federal Rules of 
Evidence is admissible in a proceeding conducted pursuant to this 
subpart.
    (3) Evidence that would be inadmissible under the Federal Rules of 
Evidence may not be deemed or ruled to be inadmissible in a proceeding 
conducted pursuant to this subpart if such evidence is relevant, 
material, reliable and not unduly repetitive.
    (b) Official notice. (1) Official notice may be taken of any 
material fact which may be judicially noticed by a United States 
district court and any material information in the official public 
records of any Federal or state government agency.
    (2) All matters officially noticed by the administrative law judge 
or Board shall appear on the record.
    (3) If official notice is requested or taken of any material fact, 
the parties, upon timely request, shall be afforded an opportunity to 
object.
    (c) Documents. (1) A duplicate copy of a document is admissible to 
the same extent as the original, unless a genuine issue is raised as to 
whether the copy is in some material respect not a true and legible copy 
of the original.
    (2) Subject to the requirements of paragraph (a) of this section, 
any document, including a report of examination, supervisory activity, 
inspection or visitation, prepared by an appropriate Federal financial 
institution regulatory agency or state regulatory agency, is admissible 
either with or without a sponsoring witness.
    (3) Witnesses may use existing or newly created charts, exhibits, 
calendars, calculations, outlines or other graphic material to 
summarize, illustrate, or simplify the presentation of testimony. Such 
materials may, subject to the administrative law judge's discretion, be 
used with or without being admitted into evidence.
    (d) Objections. (1) Objections to the admissibility of evidence must 
be timely made and rulings on all objections must appear on the record.
    (2) When an objection to a question or line of questioning 
propounded to a witness is sustained, the examining counsel may make a 
specific proffer on the record of what he or she expected to prove by 
the expected testimony of the witness, either by representation of 
counsel or by direct interrogation of the witness.
    (3) The administrative law judge shall retain rejected exhibits, 
adequately marked for identification, for the record, and transmit such 
exhibits to the Board.
    (4) Failure to object to admission of evidence or to any ruling 
constitutes a waiver of the objection.
    (e) Stipulations. The parties may stipulate as to any relevant 
matters of fact or the authentication of any relevant documents. Such 
stipulations must be received in evidence at a hearing, and are binding 
on the parties with respect to the matters therein stipulated.
    (f) Depositions of unavailable witnesses. (1) If a witness is 
unavailable to testify at a hearing, and that witness has testified in a 
deposition to which all parties in a proceeding had notice and an 
opportunity to participate, a party may offer as evidence all or any 
part of the transcript of the deposition, including deposition exhibits, 
if any.
    (2) Such deposition transcript is admissible to the same extent that 
testimony would have been admissible had that person testified at the 
hearing, provided that if a witness refused to answer proper questions 
during the depositions, the administrative law judge may, on that basis, 
limit the admissibility of the deposition in any manner that justice 
requires.
    (3) Only those portions of a deposition received in evidence at the 
hearing constitute a part of the record.

[[Page 687]]



Sec. 263.37  Post-hearing filings.

    (a) Proposed findings and conclusions and supporting briefs. (1) 
Using the same method of service for each party, the administrative law 
judge shall serve notice upon each party, that the certified transcript, 
together with all hearing exhibits and exhibits introduced but not 
admitted into evidence at the hearing, has been filed. Any party may 
file with the administrative law judge proposed findings of fact, 
proposed conclusions of law, and a proposed order within 30 days 
following service of this notice by the administrative law judge or 
within such longer period as may be ordered by the administrative law 
judge.
    (2) Proposed findings and conclusions must be supported by citation 
to any relevant authorities and by page references to any relevant 
portions of the record. A post-hearing brief may be filed in support of 
proposed findings and conclusions, either as part of the same document 
or in a separate document. Any party who fails to file timely with the 
administrative law judge any proposed finding or conclusion is deemed to 
have waived the right to raise in any subsequent filing or submission 
any issue not addressed in such party's proposed finding or conclusion.
    (b) Reply briefs. Reply briefs may be filed within 15 days after the 
date on which the parties' proposed findings, conclusions, and order are 
due. Reply briefs must be strictly limited to responding to new matters, 
issues, or arguments raised in another party's papers. A party who has 
not filed proposed findings of fact and conclusions of law or a post-
hearing brief may not file a reply brief.
    (c) Simultaneous filing required. The administrative law judge shall 
not order the filing by any party of any brief or reply brief in advance 
of the other party's filing of its brief.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20344, May 6, 1996]



Sec. 263.38  Recommended decision and filing of record.

    (a) Filing of recommended decision and record. Within 45 days after 
expiration of the time allowed for filing reply briefs under 
Sec. 263.37(b), the administrative law judge shall file with and certify 
to the Board, for decision, the record of the proceeding. The record 
must include the administrative law judge's recommended decision, 
recommended findings of fact, recommended conclusions of law, and 
proposed order; all prehearing and hearing transcripts, exhibits, and 
rulings; and the motions, briefs, memoranda, and other supporting papers 
filed in connection with the hearing. The administrative law judge shall 
serve upon each party the recommended decision, findings, conclusions, 
and proposed order.
    (b) Filing of index. At the same time the administrative law judge 
files with and certifies to the Board for final determination the record 
of the proceeding, the administrative law judge shall furnish to the 
Board a certified index of the entire record of the proceeding. The 
certified index shall include, at a minimum, an entry for each paper, 
document or motion filed with the administrative law judge in the 
proceeding, the date of the filing, and the identity of the filer. The 
certified index shall also include an exhibit index containing, at a 
minimum, an entry consisting of exhibit number and title or description 
for: Each exhibit introduced and admitted into evidence at the hearing; 
each exhibit introduced but not admitted into evidence at the hearing; 
each exhibit introduced and admitted into evidence after the completion 
of the hearing; and each exhibit introduced but not admitted into 
evidence after the completion of the hearing.

[61 FR 20344, May 6, 1996]



Sec. 263.39  Exceptions to recommended decision.

    (a) Filing exceptions. Within 30 days after service of the 
recommended decision, findings, conclusions, and proposed order under 
Sec. 263.38, a party may file with the Board written exceptions to the 
administrative law judge's recommended decision, findings, conclusions 
or proposed order, to the admission or exclusion of evidence, or to the 
failure of the administrative law judge to make a ruling proposed by a 
party. A supporting brief may be filed at the time the exceptions are 
filed, either as

[[Page 688]]

part of the same document or in a separate document.
    (b) Effect of failure to file or raise exceptions. (1) Failure of a 
party to file exceptions to those matters specified in paragraph (a) of 
this section within the time prescribed is deemed a waiver of objection 
thereto.
    (2) No exception need be considered by the Board if the party taking 
exception had an opportunity to raise the same objection, issue, or 
argument before the administrative law judge and failed to do so.
    (c) Contents. (1) All exceptions and briefs in support of such 
exceptions must be confined to the particular matters in, or omissions 
from, the administrative law judge's recommendations to which that party 
takes exception.
    (2) All exceptions and briefs in support of exceptions must set 
forth page or paragraph references to the specific parts of the 
administrative law judge's recommendations to which exception is taken, 
the page or paragraph references to those portions of the record relied 
upon to support each exception, and the legal authority relied upon to 
support each exception.



Sec. 263.40  Review by the Board.

    (a) Notice of submission to the Board. When the Board determines 
that the record in the proceeding is complete, the Board shall serve 
notice upon the parties that the proceeding has been submitted to the 
Board for final decision.
    (b) Oral argument before the Board. Upon the initiative of the Board 
or on the written request of any party filed with the Board within the 
time for filing exceptions, the Board may order and hear oral argument 
on the recommended findings, conclusions, decision, and order of the 
administrative law judge. A written request by a party must show good 
cause for oral argument and state reasons why arguments cannot be 
presented adequately in writing. A denial of a request for oral argument 
may be set forth in the Board's final decision. Oral argument before the 
Board must be on the record.
    (c) Agency final decision. (1) Decisional employees may advise and 
assist the Board in the consideration and disposition of the case. The 
final decision of the Board will be based upon review of the entire 
record of the proceeding, except that the Board may limit the issues to 
be reviewed to those findings and conclusions to which opposing 
arguments or exceptions have been filed by the parties.
    (2) The Board shall render a final decision within 90 days after 
notification of the parties that the case has been submitted for final 
decision, or 90 days after oral argument, whichever is later, unless the 
Board orders that the action or any aspect thereof be remanded to the 
administrative law judge for further proceedings. Copies of the final 
decision and order of the Board shall be served upon each party to the 
proceeding, upon other persons required by statute, and, if directed by 
the Board or required by statute, upon any appropriate state or Federal 
supervisory authority.



Sec. 263.41  Stays pending judicial review.

    The commencement of proceedings for judicial review of a final 
decision and order of the Board may not, unless specifically ordered by 
the Board or a reviewing court, operate as a stay of any order issued by 
the Board. The Board may, in its discretion, and on such terms as it 
finds just, stay the effectiveness of all or any part of its order 
pending a final decision on a petition for review of that order.



      Subpart B--Board Local Rules Supplementing the Uniform Rules



Sec. 263.50  Purpose and scope.

    (a) This subpart prescribes the rules of practice and procedure 
governing formal adjudications set forth in Sec. 263.50(b) of this 
subpart, and supplements the rules of practice and procedure contained 
in subpart A of this part.
    (b) The rules and procedures of this subpart and subpart A of this 
part shall apply to the formal adjudications set forth in Sec. 263.1 of 
subpart A and to the following adjudications:
    (1) Suspension of a member bank from use of credit facilities of the 
Federal Reserve System under section 4 of the FRA (12 U.S.C. 301);

[[Page 689]]

    (2) Termination of a bank's membership in the Federal Reserve System 
under section 9 of the FRA (12 U.S.C. 327);
    (3) Issuance of a cease-and-desist order under section 11 of the 
Clayton Act (15 U.S.C. 21);
    (4) Adjudications under sections 2, 3, or 4 of the BHC Act (12 
U.S.C. 1841, 1842, or 1843);
    (5) Formal adjudications on bank merger applications under section 
18(c) of the FDIA (12 U.S.C. 1828(c));
    (6) Issuance of a divestiture order under section 5(e) of the BHC 
Act (12 U.S.C. 1844(e));
    (7) Imposition of sanctions upon any municipal securities dealer for 
which the Board is the appropriate regulatory agency, or upon any person 
associated or seeking to become associated with such a municipal 
securities dealer, under section 15B(c)(5) of the Exchange Act (15 
U.S.C. 78o-4);
    (8) Proceedings where the Board otherwise orders that a formal 
hearing be held;
    (9) Termination of the activities of a state branch, state agency, 
or commercial lending company subsidiary of a foreign bank in the United 
States, pursuant to section 7(e) of the IBA (12 U.S.C. 3105(d));
    (10) Termination of the activities of a representative office of a 
foreign bank in the United States, pursuant to section 10(b) of the IBA 
(12 U.S.C. 3107(b));
    (11) Issuance of a prompt corrective action directive to a member 
bank under section 38 of the FDI Act (12 U.S.C. 1831o);
    (12) Reclassification of a member bank on grounds of unsafe or 
unsound condition under section 38(g)(1) of the FDI Act (12 U.S.C. 
1831o(g)(1));
    (13) Reclassification of a member bank on grounds of unsafe and 
unsound practice under section 38(g)(1) of the FDI Act (12 U.S.C. 
1831o(g)(1)); and
    (14) Issuance of an order requiring a member bank to dismiss a 
director or senior executive officer under section 38 (e)(5) and 
38(f)(2) (F)(ii) of the FDI Act (12 U.S.C. 1831o(e)(5) and 1831o(f)(2) 
(F)(ii)).

[56 FR 38052, Aug. 9, 1991, as amended at 57 FR 13001, Apr. 15, 1992; 57 
FR 44888, Sept. 29, 1992]



Sec. 263.51  Definitions.

    As used in subparts B through G of this part:
    (a) Secretary means the Secretary of the Board of Governors of the 
Federal Reserve System;
    (b) Member bank means any bank that is a member of the Federal 
Reserve System.
    (c) Institution has the same meaning as that assigned to it in 
Sec. 263.3(f) of subpart A, and includes any foreign bank with a 
representative office in the United States.

[56 FR 38052, Aug. 9, 1991, as amended at 57 FR 13001, Apr. 15, 1992; 58 
FR 6363, Jan. 28, 1993]



Sec. 263.52  Address for filing.

    All papers to be filed with the Board shall be filed with the 
Secretary of the Board of Governors of the Federal Reserve System, 
Washington, DC 20551.



Sec. 263.53  Discovery depositions.

    (a) In general. In addition to the discovery permitted in subpart A 
of this part, limited discovery by means of depositions shall be allowed 
for individuals with knowledge of facts material to the proceeding that 
are not protected from discovery by any applicable privilege, and of 
identified expert witnesses. Except in unusual cases, accordingly, 
depositions will be permitted only of individuals identified as hearing 
witnesses, including experts. All discovery depositions must be 
completed within the time set forth in Sec. 263.24(d).
    (b) Application. A party who desires to take a deposition of any 
other party's proposed witnesses, shall apply to the administrative law 
judge for the issuance of a deposition subpoena or subpoena duces tecum. 
The application shall state the name and address of the proposed 
deponent, the subject matter of the testimony expected from the deponent 
and its relevancy to the proceeding, and the address of the place and 
the time, no sooner than ten days after the service of the subpoena, for 
the taking of the deposition. Any such application shall be treated as a 
motion subject to the rules governing motions practice set forth in 
Sec. 263.23.

[[Page 690]]

    (c) Issuance of subpoena. The administrative law judge shall issue 
the requested deposition subpoena or subpoena duces tecum upon a finding 
that the application satisfies the requirements of this section and of 
Sec. 263.24. If the administrative law judge determines that the taking 
of the deposition or its proposed location is, in whole or in part, 
unnecessary, unreasonable, oppressive, excessive in scope or unduly 
burdensome, he or she may deny the application or may grant it upon such 
conditions as justice may require. The party obtaining the deposition 
subpoena or subpoena duces tecum shall be responsible for serving it on 
the deponent and all parties to the proceeding in accordance with 
Sec. 263.11.
    (d) Motion to quash or modify. A person named in a deposition 
subpoena or subpoena duces tecum may file a motion to quash or modify 
the subpoena or for the issuance of a protective order. Such motions 
must be filed within ten days following service of the subpoena, but in 
all cases at least five days prior to the commencement of the scheduled 
deposition. The motion must be accompanied by a statement of the reasons 
for granting the motion and a copy of the motion and the statement must 
be served on the party which requested the subpoena. Only the party 
requesting the subpoena may file a response to a motion to quash or 
modify, and any such response shall be filed within five days following 
service of the motion.
    (e) Enforcement of a deposition subpoena. Enforcement of a 
deposition subpoena shall be in accordance with the procedures set forth 
in Sec. 263.27(d).
    (f) Conduct of the deposition. The deponent shall be duly sworn, and 
each party shall have the right to examine the deponent with respect to 
all non-privileged, relevant and material matters. Objections to 
questions or evidence shall be in the short form, stating the ground for 
the objection. Failure to object to questions or evidence shall not be 
deemed a waiver except where the grounds for the objection might have 
been avoided if the objection had been timely presented. The discovery 
deposition shall be transcribed or otherwise recorded as agreed among 
the parties.
    (g) Protective orders. At any time during the taking of a discovery 
deposition, on the motion of any party or of the deponent, the 
administrative law judge may terminate or limit the scope and manner of 
the deposition upon a finding that grounds exist for such relief. 
Grounds for terminating or limiting the taking of a discovery deposition 
include a finding that the discovery deposition is being conducted in 
bad faith or in such a manner as to:
    (1) Unreasonably annoy, embarrass, or oppress the deponent;
    (2) Unreasonably probe into privilege, irrelevant or immaterial 
matters; or
    (3) Unreasonably attempt to pry into a party's preparation for 
trial.



Sec. 263.54  Delegation to the Office of Financial Institution Adjudication.

    Unless otherwise ordered by the Board, administrative adjudications 
subject to subpart A of this part shall be conducted by an 
administrative law judge of OFIA.



Sec. 263.55  Board as Presiding Officer.

    The Board may, in its discretion, designate itself, one or more of 
its members, or an authorized officer, to act as presiding officer in a 
formal hearing. In such a proceeding, proposed findings and conclusions, 
briefs, and other submissions by the parties permitted in subpart A 
shall be filed with the Secretary for consideration by the Board. 
Sections 263.38 and 263.39 of subpart A will not apply to proceedings 
conducted under this section.



Sec. 263.56  Initial Licensing Proceedings.

    Proceedings with respect to applications for initial licenses shall 
include, but not be limited to, applications for Board approval under 
section 3 of the BHC Act and such proceedings as may be ordered by the 
Board with respect to applications under section 18(c) of the FDIA. In 
such initial licensing proceedings, the procedures set forth in subpart 
A of this part shall apply, except that the Board may designate a Board 
Counsel to represent the Board in a nonadversary capacity for the 
purpose of developing for the record information relevant to the issues 
to be determined by the Presiding Officer and the Board. In such 
proceedings, Board

[[Page 691]]

Counsel shall be considered to be a decisional employee for purposes of 
Secs. 263.9 and 263.40 of subpart A.



 Subpart C--Rules and Procedures for Assessment and Collection of Civil 
                             Money Penalties



Sec. 263.60  Scope.

    The Uniform Rules set forth in subpart A of this part shall govern 
the procedures for assessment of civil money penalties, except as 
otherwise provided in this subpart.



Sec. 263.61  Opportunity for informal proceeding.

    In the sole discretion of the Board's General Counsel, the General 
Counsel may, prior to the issuance by the Board of a notice of 
assessment of civil penalty, advise the affected person that the 
issuance of a notice of assessment of civil penalty is being considered 
and the reasons and authority for the proposed assessment. The General 
Counsel may provide the person an opportunity to present written 
materials or request a conference with members of the Board's staff to 
show that the penalty should not be assessed or, if assessed, should be 
reduced in amount.



Sec. 263.62  Relevant considerations for assessment of civil penalty.

    In determining the amount of the penalty to be assessed, the Board 
shall take into account the appropriateness of the penalty with respect 
to the financial resources and good faith of the person charged, the 
gravity of the misconduct, the history of previous misconduct, the 
economic benefit derived by the person from the misconduct, and such 
other matters as justice may require.



Sec. 263.63  Assessment order.

    (a) In the event of consent to an assessment by the person 
concerned, or if, upon the record made at an administrative hearing, the 
Board finds that the grounds for having assessed the penalty have been 
established, the Board may issue a final order of assessment of civil 
penalty. In its final order, the Board may modify the amount of the 
penalty specified in the notice of assessment.
    (b) An assessment order is effective immediately upon issuance, or 
upon such other date as may be specified therein, and shall remain 
effective and enforceable until it is stayed, modified, terminated, or 
set aside by action of the Board or a reviewing court.



Sec. 263.64  Payment of civil penalty.

    (a) The date designated in the notice of assessment for payment of 
the civil penalty will normally be 60 days from the issuance of the 
notice. If, however, the Board finds in a specific case that the 
purposes of the authorizing statute would be better served if the 60-day 
period is changed, the Board may shorten or lengthen the period or make 
the civil penalty payable immediately upon receipt of the notice of 
assessment. If a timely request for a formal hearing to challenge an 
assessment of civil penalty is filed, payment of the penalty shall not 
be required unless and until the Board issues a final order of 
assessment following the hearing. If an assessment order is issued, it 
will specify the date by which the civil penalty should be paid or 
collected.
    (b) Checks in payment of civil penalties should be made payable to 
the ``Board of Governors of the Federal Reserve System.'' Upon 
collection, the Board shall forward the amount of the penalty to the 
Treasury of the United States.



Sec. 263.65  Civil penalty inflation adjustments.

    (a) Inflation adjustments. In accordance with the Federal Civil 
Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note), the 
Board has set forth in paragraph (b) of this section adjusted maximum 
penalty amounts for each civil money penalty provided by law within its 
jurisdiction. The adjusted civil penalty amounts provided in paragraph 
(b) of this section replace only the amounts published in the statutes 
authorizing the assessment of penalties. The authorizing statutes 
contain the complete provisions under which the Board may seek a civil 
money penalty. The increased penalty amounts apply only to violations 
occurring after October 24, 1996.
    (b) Maximum civil money penalties. The maximum civil money penalties 
as set

[[Page 692]]

forth in the referenced statutory sections are adjusted as follows:
    (1) 12 U.S.C. 324:
    (i) Inadvertently late or misleading reports, inter alia--$2,000.
    (ii) Other late or misleading reports, inter alia--$22,000.
    (iii) Knowingly or recklessly false or misleading reports, inter 
alia--$1,100,000.
    (2) 12 U.S.C. 504, 505, 1817(j)(16), 1818(i)(2) and 1972(2)(F):
    (i) First tier--$5,500.
    (ii) Second tier--$27,500.
    (iii) Third tier--$1,100,000.
    (3) 12 U.S.C. 1832(c)--$1,100.
    (4) 12 U.S.C. 1847(b)--$27,500.
    (5) 12 U.S.C. 1847(d):
    (i) First tier--$2,000.
    (ii) Second tier--$22,000.
    (iii) Third tier--$1,100,000.
    (6) 12 U.S.C. 1884--$110.
    (7) 12 U.S.C. 3909(d)--$1,100.
    (8) 15 U.S.C. 78u-2:
    (i) 15 U.S.C. 78u-2(b)(1)--$5,500 for a natural person and $55,000 
for any other person.
    (ii) 15 U.S.C. 78u-2(b)(2)--$55,000 for a natural person and 
$275,000 for any other person.
    (iii) 15 U.S.C. 78u-2(b)(3)--$110,000 for a natural person and 
$550,000 for any other person.
    (9) 42 U.S.C. 4012a(f)(5):
    (i) For each violation--$350.
    (ii) For the total amount of penalties assessed under 42 U.S.C 
4012a(f)(5) against an institution or enterprise during any calendar 
year--$105,000.

[61 FR 56407, Nov. 1, 1996; 61 FR 65318, Dec. 12, 1996]



 Subpart D--Rules and Procedures Applicable to Suspension or Removal of 
   an Institution-Affiliated Party Where a Felony is Charged or Proven



Sec. 263.70  Purpose and scope.

    The rules and procedures set forth in this subpart apply to informal 
hearings afforded to any institution-affiliated party for whom the Board 
is the appropriate regulatory agency, who has been suspended or removed 
from office or prohibited from further participation in any manner in 
the conduct of the institution's affairs by a notice or order issued by 
the Board upon the grounds set forth in section 8(g) of the FDIA (12 
U.S.C. 1818(g)).



Sec. 263.71  Notice or order of suspension, removal, or prohibition.

    (a) Grounds. The Board may suspend an institution-affiliated party 
from office or prohibit an institution-affiliated party from further 
participation in any manner in the conduct of an institution's affairs 
when the person is charged in any information, indictment, or complaint 
authorized by a United States attorney with the commission of, or 
participation in, a crime involving dishonesty or breach of trust that 
is punishable by imprisonment for a term exceeding one year under State 
or Federal law. The Board may remove an institution-affiliated party 
from office or prohibit an institution-affiliated party from further 
participation in any manner in the conduct of an institution's affairs 
when the person is convicted of such an offense and the conviction is 
not subject to further direct appellate review. The Board may suspend or 
remove an institution-affiliated party or prohibit an institution-
affiliated party from participation in an institution's affairs in these 
circumstances if the Board finds that continued service to the financial 
institution or participation in its affairs by the institution-
affiliated party may pose a threat to the interests of the institution's 
depositors or may threaten to impair public confidence in the financial 
institution.
    (b) Contents. The Board commences a suspension, removal, or 
prohibition action under this subpart with the issuance, and service 
upon a institution-affiliated party, of a notice of suspension from 
office, or order of removal from office, or notice or order of 
prohibition from participation in the financial institution's affairs. 
Such a notice or order shall indicate the basis for the suspension, 
removal, or prohibition and shall inform the institution-affiliated 
party of the right to request in writing, within 30 days of service of 
the notice or order, an opportunity to show at an informal hearing that 
continued service to, or participation in the conduct of the affairs of, 
the financial institution does not and is not likely to pose

[[Page 693]]

a threat to the interests of the financial institution's depositors or 
threaten to impair public confidence in the financial institution. 
Failure to file a timely request for an informal hearing shall be deemed 
to be a waiver of the right to request such a hearing. A notice of 
suspension or prohibition shall remain in effect until the criminal 
charge upon which the notice is based is finally disposed of or until 
the notice is terminated by the Board.
    (c) Service. The notice or order shall be served upon the affiliated 
financial institution concerned, whereupon the institution-affiliated 
party shall immediately cease service to the financial institution or 
further participation in any manner in the conduct of the affairs of the 
financial institution. A notice or order of suspension, removal, or 
prohibition may be served by any of the means authorized for service 
under Sec. 263.11(c)(2) of subpart A.



Sec. 263.72  Request for informal hearing.

    An institution-affiliated party who is suspended or removed from 
office or prohibited from participation in the institution's affairs may 
request an informal hearing within 30 days of service of the notice or 
order. The request shall be filed in writing with the Secretary, Board 
of Governors of the Federal Reserve System, Washington, DC 20551. The 
request shall state with particularity the relief desired and the 
grounds therefor and shall include, when available, supporting evidence 
in the form of affidavits. If the institution-affiliated party desires 
to present oral testimony or witnesses at the hearing, the institution-
affiliated party must include a request to do so with the request for 
informal hearing. The request to present oral testimony or witnesses 
shall specify the names of the witnesses and the general nature of their 
expected testimony.



Sec. 263.73  Order for informal hearing.

    (a) Issuance of hearing order. Upon receipt of a timely request for 
an informal hearing, the Secretary shall promptly issue an order 
directing an informal hearing to commence within 30 days of the receipt 
of the request. At the request of the institution-affiliated party, the 
Secretary may order the hearing to commence at a time more than 30 days 
after the receipt of the request for hearing. The hearing shall be held 
in Washington, DC, or at such other place as may be designated by the 
Secretary, before presiding officers designated by the Secretary to 
conduct the hearing. The presiding officers normally will include 
representatives from the Board's Legal Division and the Division of 
Banking Supervision and Regulation and from the appropriate Federal 
Reserve Bank.
    (b) Waiver of oral hearing. A institution-affiliated party may waive 
in writing his or her right to an oral hearing and instead elect to have 
the matter determined by the Board solely on the basis of written 
submissions.
    (c) Hearing procedures. (1) The institution-affiliated party may 
appear at the hearing personally, through counsel, or personally with 
counsel. The institution-affiliated party shall have the right to 
introduce relevant written materials and to present an oral argument. 
The institution-affiliated party may introduce oral testimony and 
present witnesses only if expressly authorized by the Board or the 
Secretary. Except as provided in Sec. 263.11, the adjudicative 
procedures of the Administrative Procedure Act (5 U.S.C. 554-557) and of 
subpart A of this part shall not apply to the informal hearing ordered 
under this subpart unless the Board orders that subpart A of this part 
applies.
    (2) The informal hearing shall be recorded and a transcript shall be 
furnished to the institution-affiliated party upon request and after the 
payment of the cost thereof. Witnesses need not be sworn, unless 
specifically requested by a party or the presiding officers. The 
presiding officers may ask questions of any witness.
    (3) The presiding officers may order the record to be kept open for 
a reasonable period following the hearing (normally five business days), 
during which time additional submissions to the record may be made. 
Thereafter, the record shall be closed.
    (d) Authority of presiding officers. In the course of or in 
connection with any proceeding under this subpart, the Board or the 
presiding officers are authorized to administer oaths and affirmations, 
to take or cause to be taken

[[Page 694]]

depositions, to issue, quash or modify subpoenas and subpoenas duces 
tecum, and, for the enforcement thereof, to apply to an appropriate 
United States district court. All action relating to depositions and 
subpoenas shall be in accordance with the rules provided in Secs. 263.34 
and 263.53.
    (e) Recommendation of presiding officers. The presiding officers 
shall make a recommendation to the Board concerning the notice or order 
of suspension, removal, or prohibition within 20 calendar days following 
the close of the record on the hearing.



Sec. 263.74  Decision of the Board.

    (a) Within 60 days following the close of the record on the hearing, 
or receipt of written submissions where a hearing has been waived, the 
Board shall notify the institution-affiliated party whether the notice 
of suspension or prohibition will be continued, terminated, or otherwise 
modified, or whether the order of removal or prohibition will be 
rescinded or otherwise modified. The notification shall contain a 
statement of the basis for any adverse decision by the Board. In the 
case of a decision favorable to the institution-affiliated party, the 
Board shall take prompt action to rescind or otherwise modify the order 
of suspension, removal or prohibition.
    (b) In deciding the question of suspension, removal, or prohibition 
under this subpart, the Board shall not rule on the question of the 
guilt or innocence of the individual with respect to the crime with 
which the individual has been charged.



  Subpart E--Procedures for Issuance and Enforcement of Directives to 
                        Maintain Adequate Capital



Sec. 263.80  Purpose and scope.

    This subpart establishes procedures under which the Board may issue 
a directive or take other action to require a state member bank or a 
bank holding company to achieve and maintain adequate capital.



Sec. 263.81  Definitions.

    (a) Bank holding company means any company that controls a bank as 
defined in section 2 of the BHC Act, 12 U.S.C. 1841, and in the Board's 
Regulation Y (12 CFR 225.2(b)) or any direct or indirect subsidiary 
thereof other than a bank subsidiary as defined in section 2(c) of the 
BHC Act, 12 U.S.C. 1841(c), and in the Board's Regulation Y (12 CFR 
225.2(a)).
    (b) Capital Adequacy Guidelines means those guidelines for bank 
holding companies and state member banks contained in appendices A and D 
to the Board's Regulation Y (12 CFR part 225), and in Appendix A to the 
Board's Regulation H (12 CFR part 208), or any succeeding capital 
guidelines promulgated by the Board.
    (c) Directive means a final order issued by the Board pursuant to 
ILSA (12 U.S.C. 3907(b)(2)) requiring a state member bank or bank 
holding company to increase capital to or maintain capital at the 
minimum level set forth in the Board's Capital Adequacy Guidelines or as 
otherwise established under procedures described in Sec. 263.85 of this 
subpart.
    (d) State member bank means any state-chartered bank that is a 
member of the Federal Reserve System.



Sec. 263.82  Establishment of minimum capital levels.

    The Board has established minimum capital levels for state member 
banks and bank holding companies in its Capital Adequacy Guidelines. The 
Board may set higher capital levels as necessary and appropriate for a 
particular state member bank or bank holding company based upon its 
financial condition, managerial resources, prospects, or similar 
factors, pursuant to the procedures set forth in Sec. 263.85 of this 
subpart.



Sec. 263.83  Issuance of capital directives.

    (a) Notice of intent to issue directive. If a state member bank or 
bank holding company is operating with less than the minimum level of 
capital established in the Board's Capital Adequacy Guidelines, or as 
otherwise established under the procedures described in Sec. 263.85 of 
this subpart, the Board may

[[Page 695]]

issue and serve upon such state member bank or bank holding company 
written notice of the Board's intent to issue a directive to require the 
bank or bank holding company to achieve and maintain adequate capital 
within a specified time period.
    (b) Contents of notice. The notice of intent to issue a directive 
shall include:
    (1) The required minimum level of capital to be achieved or 
maintained by the institution;
    (2) Its current level of capital;
    (3) The proposed increase in capital needed to meet the minimum 
requirements;
    (4) The proposed date or schedule for meeting these minimum 
requirements;
    (5) When deemed appropriate, specific details of a proposed plan for 
meeting the minimum capital requirements; and
    (6) The date for a written response by the bank or bank holding 
company to the proposed directive, which shall be at least 14 days from 
the date of issuance of the notice unless the Board determines a shorter 
period is necessary because of the financial condition of the bank or 
bank holding company.
    (c) Response to notice. The bank or bank holding company may file a 
written response to the notice within the time period set by the Board. 
The response may include:
    (1) An explanation why a directive should not be issued;
    (2) Any proposed modification of the terms of the directive;
    (3) Any relevant information, mitigating circumstances, 
documentation or other evidence in support of the institution's position 
regarding the proposed directive; and
    (4) The institution's plan for attaining the required level of 
capital.
    (d) Failure to file response. Failure by the bank or bank holding 
company to file a written response to the notice of intent to issue a 
directive within the specified time period shall constitute a waiver of 
the opportunity to respond and shall constitute consent to the issuance 
of such directive.
    (e) Board consideration of response. After considering the response 
of the bank or bank holding company, the Board may:
    (1) Issue the directive as originally proposed or in modified form;
    (2) Determine not to issue a directive and so notify the bank or 
bank holding company; or
    (3) Seek additional information or clarification of the response by 
the bank or bank holding company.
    (f) Contents of directive. Any directive issued by the Board may 
order the bank or bank holding company to:
    (1) Achieve or maintain the minimum capital requirement established 
pursuant to the Board's Capital Adequacy Guidelines or the procedures in 
Sec. 263.85 of this subpart by a certain date;
    (2) Adhere to a previously submitted plan or submit for approval and 
adhere to a plan for achieving the minimum capital requirement by a 
certain date;
    (3) Take other specific action as the Board directs to achieve the 
minimum capital levels, including requiring a reduction of assets or 
asset growth or restriction on the payment of dividends; or
    (4) Take any combination of the above actions.
    (g) Request for reconsideration of directive. Any state member bank 
or bank holding company, upon a change in circumstances, may request the 
Board to reconsider the terms of a directive and may propose changes in 
the plan under which it is operating to meet the required minimum 
capital level. The directive and plan continue in effect while such 
request is pending before the Board.



Sec. 263.84  Enforcement of directive.

    (a) Judicial and administrative remedies. (1) Whenever a bank or 
bank holding company fails to follow a directive issued under this 
subpart, or to submit or adhere to a capital adequacy plan as required 
by such directive, the Board may seek enforcement of the directive, 
including the capital adequacy plan, in the appropriate United State 
district court, pursuant to section 908 (b)(2)(B)(ii) of ILSA (12 U.S.C. 
3907(b)(2)(B)(ii)) and to section 8(i) of the FDIA (12 U.S.C. 1818(i)), 
in the same manner and to the same extent as if the directive were a 
final cease-and-desist order.

[[Page 696]]

    (2) The Board, pursuant to section 910(d) of ILSA (12 U.S.C. 
3909(d)), may also assess civil money penalties for violation of the 
directive against any bank or bank holding company and any institution-
affiliated party of the bank or bank holding company, in the same manner 
and to the same extent as if the directive were a final cease-and-desist 
order.
    (b) Other enforcement actions. A directive may be issued separately, 
in conjunction with, or in addition to any other enforcement actions 
available to the Board, including issuance of cease-and-desist orders, 
the approval or denial of applications or notices, or any other actions 
authorized by law.
    (c) Consideration in application proceedings. In acting upon any 
application or notice submitted to the Board pursuant to any statute 
administered by the Board, the Board may consider the progress of a 
state member bank or bank holding company or any subsidiary thereof in 
adhering to any directive or capital adequacy plan required by the Board 
pursuant to this subpart, or by any other appropriate banking 
supervisory agency pursuant to ILSA. The Board shall consider whether 
approval or a notice of intent not to disapprove would divert earnings, 
diminish capital, or otherwise impede the bank or bank holding company 
in achieving its required minimum capital level or complying with its 
capital adequacy plan.



Sec. 263.85  Establishment of increased capital level for specific institutions.

    (a) Establishment of capital levels for specific institutions. The 
Board may establish a capital level higher than the minimum specified in 
the Board's Capital Adequacy Guidelines for a specific bank or bank 
holding company pursuant to:
    (1) A written agreement or memorandum of understanding between the 
Board or the appropriate Federal Reserve Bank and the bank or bank 
holding company;
    (2) A temporary or final cease-and-desist order issued pursuant to 
section 8(b) or (c) of the FDIA (12 U.S.C. 1818(b) or (c));
    (3) A condition for approval of an application or issuance of a 
notice of intent not to disapprove a proposal;
    (4) Or other similar means; or
    (5) The procedures set forth in paragraph (b) of this section.
    (b) Procedure to establish higher capital requirement--(1) Notice. 
When the Board determines that capital levels above those in the Board's 
Capital Adequacy Guidelines may be necessary and appropriate for a 
particular bank or bank holding company under the circumstances, the 
Board shall give the bank or bank holding company notice of the proposed 
higher capital requirement and shall permit the bank or bank holding 
company an opportunity to comment upon the proposed capital level, 
whether it should be required and, if so, under what time schedule. The 
notice shall contain the Board's reasons for proposing a higher level of 
capital.
    (2) Response. The bank or bank holding company shall be allowed at 
least 14 days to respond, unless the Board determines that a shorter 
period is necessary because of the financial condition of the bank or 
bank holding company. Failure by the bank or bank holding company to 
file a written response to the notice within the time set by the Board 
shall constitute a waiver of the opportunity to respond and shall 
constitute consent to issuance of a directive containing the required 
minimum capital level.
    (3) Board decision. After considering the response of the 
institution, the Board may issue a written directive to the bank or bank 
holding company setting an appropriate capital level and the date on 
which this capital level will become effective. The Board may require 
the bank or bank holding company to submit and adhere to a plan for 
achieving such higher capital level as the Board may set.
    (4) Enforcement of higher capital level. The Board may enforce the 
capital level established pursuant to the procedures described in this 
section and any plan submitted to achieve that capital level through the 
procedures set forth in Sec. 263.84 of this subpart.

[[Page 697]]



                  Subpart F--Practice Before the Board



Sec. 263.90  Scope.

    This subpart prescribes rules relating to general practice before 
the Board on one's own behalf or in a representational capacity, 
including the circumstances under which disciplinary sanctions -- 
censure, suspension, or debarment -- may be imposed upon persons 
appearing in a representational capacity, including attorneys and 
accountants, but not including employees of the Board. These 
disciplinary sanctions, which continue in effect beyond the duration of 
a specific proceeding, supplement the provisions of Sec. 263.6(b) of 
subpart A, which address control of a specific proceeding.



Sec. 263.91  Censure, suspension or debarment.

    The Board may censure an individual or suspend or debar such 
individual from practice before the Board if he or she engages, or has 
engaged, in conduct warranting sanctions as set forth in Sec. 263.94; 
refuses to comply with the rules and regulations in this part; or with 
intent to defraud in any manner, willfully and knowingly deceives, 
misleads, or threatens any client or prospective client. The suspension 
or debarment of an individual shall be initiated only upon a finding by 
the Board that the conduct that forms the basis for the disciplinary 
action is egregious.



Sec. 263.92  Definitions.

    (a) As used in this subpart, the following terms shall have the 
meaning given in this section unless the context otherwise requires.
    (b)(1) Practice before the Board includes any matters connected with 
presentations to the Board or to any of its officers or employees 
relating to a client's rights, privileges or liabilities under laws or 
regulations administered by the Board. Such matters include, but are not 
limited to, the preparation of any statement, opinion or other paper or 
document by an attorney, accountant, or other licensed professional 
which is filed with, or submitted to, the Board, on behalf of another 
person in, or in connection with, any application, notification, report 
or document; the representation of a person at conferences, hearings and 
meetings; and the transaction of other business before the Board on 
behalf of another person.
    (2) Practice before the Board does not include work prepared for an 
institution solely at its request for use in the ordinary course of its 
business.
    (c) Attorney means any individual who is a member in good standing 
of the bar of the highest court of any state, possession, territory, 
commonwealth, or the District of Columbia.
    (d) Accountant means any individual who is duly qualified to 
practice as a certified public accountant or a public accountant in any 
state, possession, territory, commonwealth, or the District of Columbia.



Sec. 263.93  Eligibility to practice.

    (a) Attorneys. Any attorney who is qualified to practice as an 
attorney and is not currently under suspension or debarment pursuant to 
this subpart may practice before the Board.
    (b) Accountants. Any accountant who is qualified to practice as a 
certified public accountant or public accountant and is not currently 
under suspension or debarment by the Board may practice before the 
Board.



Sec. 263.94  Conduct warranting sanctions.

    Conduct for which an individual may be censured, debarred or 
suspended from practice before the Board includes, but is not limited 
to:
    (a) Willfully violating or willfully aiding and abetting the 
violation of any provision of the Federal banking laws or the rules and 
regulations thereunder or conviction of any offense involving dishonesty 
or breach of trust;
    (b) Knowingly giving false or misleading information, or 
participating in any way in the giving of false information to the Board 
or to any Board officer or employee, or to any tribunal authorized to 
pass upon matters administered by the Board in connection with any 
matter pending or likely to

[[Page 698]]

be pending before it. The term ``information'' includes facts or other 
statements contained in testimony, financial statements, applications, 
affidavits, declarations, or any other document or written or oral 
statement;
    (c) Directly or indirectly attempting to influence, or offering or 
agreeing to attempt to influence, the official action of any officer or 
employee of the Board by the use of threats, false accusations, duress 
or coercion, by the offer of any special inducement or promise of 
advantage or by the bestowing of any gift, favor, or thing of value;
    (d) Disbarment or suspension from practice as an attorney, or 
debarment or suspension from practice as a certified public accountant 
or public accountant, by any duly constituted authority of any state, 
possession, commonwealth, or the District of Columbia for the conviction 
of a felony or misdemeanor involving personal dishonesty or breach of 
trust in matters relating to the supervisory responsibilities of the 
Board, where the conviction has not been reversed on appeal;
    (e) Knowingly aiding or abetting another individual to practice 
before the Board during that individual's period of suspension, 
debarment, or ineligibility;
    (f) Contemptuous conduct in connection with practice before the 
Board, and knowingly making false accusations and statements, or 
circulating or publishing malicious or libelous matter;
    (g) Suspension or debarment from practice before the OCC, the FDIC, 
the OTS, the Securities and Exchange Commission, the NCUA, or any other 
Federal agency based on matters relating to the supervisory 
responsibilities of the Board;
    (h) Willful or knowing violation of any of the regulations contained 
in this part.



Sec. 263.95  Initiation of disciplinary proceeding.

    (a) Receipt of information. An individual, including any employee of 
the Board, who has reason to believe that an individual practicing 
before the Board in a representative capacity has engaged in any conduct 
that would serve as a basis for censure, suspension or debarment under 
Sec. 263.94, may make a report thereof and forward it to the Board.
    (b) Censure without formal proceeding. Upon receipt of information 
regarding an individual's qualification to practice before the Board, 
the Board may, after giving the individual notice and opportunity to 
respond, censure such individual.
    (c) Institution of formal disciplinary proceeding. When the Board 
has reason to believe that any individual who practices before the Board 
in a representative capacity has engaged in conduct that would serve as 
a basis for censure, suspension or debarment under Sec. 263.94 the Board 
may, after giving the individual notice and opportunity to respond, 
institute a formal disciplinary proceeding against such individual. The 
proceeding shall be conducted pursuant to Sec. 263.97 and shall be 
initiated by a complaint issued by the Board that names the individual 
as a respondent. Except in cases when time, the nature of the 
proceeding, or the public interest do not permit, a proceeding under 
this section shall not be instituted until the respondent has been 
informed, in writing, of the facts or conduct which warrant institution 
of a proceeding and the respondent has been accorded the opportunity to 
comply with all lawful requirements or take whatever action may be 
necessary to remedy the conduct that is the basis for the initiation of 
the proceeding.



Sec. 263.96  Conferences.

    (a) General. The Board's staff may confer with a proposed respondent 
concerning allegations of misconduct or other grounds for censure, 
debarment or suspension, regardless of whether a proceeding for 
debarment or suspension has been instituted. If a conference results in 
a stipulation in connection with a proceeding in which the individual is 
the respondent, the stipulation may be entered in the record at the 
request of either party to the proceeding.
    (b) Resignation or voluntary suspension. In order to avoid the 
institution of, or a decision in, a debarment or suspension proceeding, 
a person who practices before the Board may consent to suspension from 
practice. At the discretion of the Board, the individual

[[Page 699]]

may be suspended or debarred in accordance with the consent offered.



Sec. 263.97  Proceedings under this subpart.

    Except as otherwise provided in this subpart, any hearing held under 
this subpart shall be held before an administrative law judge of the 
OFIA pursuant to procedures set forth in subparts A and B of this part. 
The Board shall appoint a person to represent the Board in the hearing. 
Any person having prior involvement in the matter which is the basis for 
the suspension or debarment proceeding shall be disqualified from 
representing the Board in the hearing. The hearing shall be closed to 
the public unless the Board, sua sponte or on the request of a party, 
otherwise directs. The administrative law judge shall refer a 
recommended decision to the Board, which shall issue the final decision 
and order. In its final decision and order, the Board may censure, debar 
or suspend an individual, or take such other disciplinary action as the 
Board deems appropriate.



Sec. 263.98  Effect of suspension, debarment or censure.

    (a) Debarment. If the final order against the respondent is for 
debarment, the individual will not thereafter be permitted to practice 
before the Board unless otherwise permitted to do so by the Board 
pursuant to Sec. 263.99 of this subpart.
    (b) Suspension. If the final order against the respondent is for 
suspension, the individual will not thereafter be permitted to practice 
before the Board during the period of suspension.
    (c) Censure. If the final order against the respondent is for 
censure, the individual may be permitted to practice before the Board, 
but such individual's future representations may be subject to 
conditions designed to promote high standards of conduct. If a written 
letter of censure is issued, a copy will be maintained in the Board's 
files.
    (d) Notice of debarment or suspension. Upon the issuance of a final 
order for suspension or debarment, the Board shall give notice of the 
order to appropriate officers and employees of the Board, to interested 
departments and agencies of the Federal Government, and to the 
appropriate authorities of the State in which any debarred or suspended 
individual is or was licensed to practice.



Sec. 263.99  Petition for reinstatement.

    The Board may entertain a petition for reinstatement from any person 
debarred from practice before the Board. The Board shall grant 
reinstatement only if the Board finds that the petitioner is likely to 
act in accordance with the regulations in this part, and that granting 
reinstatement would not be contrary to the public interest. Any request 
for reinstatement shall be limited to written submissions unless the 
Board, in its discretion, affords the petitioner an informal hearing.



 Subpart G--Rules Regarding Claims Under the Equal Access to Justice Act



Sec. 263.100  Authority and scope.

    This subpart implements the provisions of the Equal Access to 
Justice Act (5 U.S.C. 504) as they apply to formal adversary 
adjudications before the Board. The types of proceedings covered by this 
subpart are listed in Secs. 263.1 and 263.50.



Sec. 263.101  Standards for awards.

    A respondent in a covered proceeding that prevails on the merits of 
that proceeding against the Board, and that is eligible under this 
subpart as defined in Sec. 263.103, may receive an award for fees and 
expenses incurred in the proceeding unless the position of the Board 
during the proceeding was substantially justified or special 
circumstances make an award unjust. The position of the Board includes, 
in addition to the position taken by the Board in the adversary 
proceeding, the action or failure to act by the Board upon which the 
adversary proceeding was based. An award will be reduced or denied if 
the applicant has unduly or unreasonably protracted the proceedings.



Sec. 263.102  Prevailing party.

    Only an eligible applicant that prevailed on the merits of an 
adversary proceeding may qualify for an award under this subpart.

[[Page 700]]



Sec. 263.103  Eligibility of applicants.

    (a) General rule. To be eligible for an award under this subpart, an 
applicant must have been named as a party to the adjudicatory proceeding 
and show that it meets all other conditions of eligibility set forth in 
paragraphs (b) and (c) of this section.
    (b) Types of eligible applicant. An applicant is eligible for an 
award only if it meets at least one of the following descriptions:
    (1) An individual with a net worth of not more than $2 million at 
the time the adversary adjudication was initiated;
    (2) Any sole owner of an unincorporated business, or any 
partnership, corporation, associations, unit of local government or 
organization, the net worth of which did not exceed $7,000,000 and which 
did not have more than 500 employees at the time the adversary 
adjudication was initiated;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees at the time the adversary proceeding 
was initiated; or
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees at the time the adversary proceeding was initiated.
    (c) Factors to be considered. In determining the eligibility of an 
applicant:
    (1) An applicant who owns an unincorporated business shall be 
considered as an individual rather than a sole owner of an 
unincorporated business if the issues on which he or she prevailed are 
related to personal interests rather than to business interests.
    (2) An applicant's net worth includes the value of any assets 
disposed of for the purpose of meeting an eligibility standard and 
excludes the value of any obligations incurred for this purpose. 
Transfers of assets or obligations incurred for less than reasonably 
equivalent value will be presumed to have been made for this purpose.
    (3) The net worth of a financial institution shall be established by 
the net worth information reported in conformity with applicable 
instructions and guidelines on the financial institution's financial 
report to its supervisory agency for the last reporting date before the 
initiation of the adversary proceeding. A bank holding company's net 
worth will be considered on a consolidated basis even if the bank 
holding company is not required to file its regulatory reports to the 
Board on a consolidated basis.
    (4) The employees of an applicant include all those persons who were 
regularly providing services for remuneration for the applicant, under 
its direction and control, on the date the adversary proceeding was 
initiated. Part-time employees are counted on a proportional basis.
    (5) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. As used 
in this subpart, affiliates are: Individuals, corporations, and entities 
that directly or indirectly or acting through one or more entities 
control at least 25% of the voting shares of the applicant, and 
corporations and entities of which the applicant directly or indirectly 
owns or controls at least 25% of the voting shares. The Board may 
determine, in light of the actual relationship among the affiliated 
entities, that aggregation with regard to one or more of the applicant's 
affiliates would be unjust and contrary to the purposes of this subpart 
and decline to aggregate the net worth and employees of such affiliate; 
alternatively, the Board may determine that financial relationships of 
the applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.



Sec. 263.104  Application for awards.

    (a) Time to file. An application and any other pleading or document 
related to the application may be filed with the Board whenever the 
applicant has prevailed in the proceeding within 30 days after service 
of the final order of the Board disposing of the proceeding.
    (b) Contents. An application for an award of fees and expenses under 
this subpart shall contain:
    (1) The name of the applicant and an identification of the 
proceeding;
    (2) A showing that the applicant has prevailed, and an 
identification of the

[[Page 701]]

way in which the applicant believes that the position of the Board in 
the proceeding was not substantially justified;
    (3) If the applicant is not an individual, a statement of the number 
of its employees on the date the proceeding was initiated;
    (4) A description of any affiliated individuals or entities, as 
defined in Sec. 263.103(c)(5), or a statement that none exist;
    (5) A declaration that the applicant, together with any affiliates, 
had a net worth not more than the maximum set forth in Sec. 263.103(b) 
as of the date the proceeding was initiated, supported by a net worth 
statement conforming to the requirements of Sec. 263.105;
    (6) A statement of the amount of fees and expenses for which an 
award is sought conforming to Sec. 263.107; and
    (7) Any other matters that the applicant wishes the Board to 
consider in determining whether and in what amount an award should be 
made.
    (c) Verification. The application shall be signed by the applicant 
or an authorized officer of or attorney for the applicant. It shall also 
contain or be accompanied by a written verification under oath or under 
penalty of perjury that the information provided in the application and 
supporting documents is true and correct.
    (d) Service. The application and related documents shall be served 
on all parties to the adversary proceeding in accordance with 
Sec. 263.11, except that statements of net worth shall be served only on 
counsel for the Board.
    (e) Presiding officer. Upon receipt of an application, the Board 
shall, if feasible, refer the matter to the administrative law judge who 
heard the underlying adversary proceeding.



Sec. 263.105  Statement of net worth.

    (a) General rule. A statement of net worth shall be filed with the 
application for an award of fees. The statement shall reflect the net 
worth of the applicant and all affiliates of the applicant, as specified 
in Sec. 263.103(c)(5). In all cases, the administrative law judge or the 
Board may call for additional information needed to establish the 
applicant's net worth as of the initiation of the proceeding.
    (b) Contents. (1) Except as otherwise provided herein, the statement 
of net worth may be in any form convenient to the applicant which fully 
discloses all the assets and liabilities of the applicant and all the 
assets and liabilities of its affiliates, as of the time of the 
initiation of the adversary adjudication. Unaudited financial statements 
are acceptable for individual applicants as long as the statement 
provides a reliable basis for evaluation, unless the administrative law 
judge or the Board otherwise requires. Financial statements or reports 
filed with or reported to a Federal or State agency, prepared before the 
initiation of the adversary proceeding for other purposes, and accurate 
as of a date not more than three months prior to the initiation of the 
proceeding, shall be acceptable in establishing net worth as of the time 
of the initiation of the proceeding, unless the administrative law judge 
or the Board otherwise requires.
    (2) In the case of applicants or affiliates that are not banks, net 
worth shall be considered for the purposes of this subpart to be the 
excess of total assets over total liabilities, as of the date the 
underlying proceeding was initiated, except as adjusted under 
Sec. 263.103(c)(5). The net worth of a bank holding company shall be 
considered on a consolidated basis. Assets and liabilities of 
individuals shall include those beneficially owned.
    (3) If the applicant or any of its affiliates is a bank, the portion 
of the statement of net worth which relates to the bank shall consist of 
a copy of the bank's last Consolidated Report of Condition and Income 
filed before the initiation of the adversary adjudication. Net worth 
shall be considered for the purposes of this subpart to be the total 
equity capital (or, in the case of mutual savings banks, the total 
surplus accounts) as reported, in conformity with applicable 
instructions and guidelines, on the bank's Consolidated Report of 
Condition and Income filed for the last reporting date before the 
initiation of the proceeding.
    (c) Statement confidential. Unless otherwise ordered by the Board or 
required by law, the statement of net worth shall be for the 
confidential use of the

[[Page 702]]

Board, counsel for the Board, and the administrative law judge.



Sec. 263.106  Measure of awards.

    (a) General rule. Awards shall be based on rates customarily charged 
by persons engaged in the business of acting as attorneys, agents, and 
expert witnesses, provided that no award under this subpart for the fee 
of an attorney or agent shall exceed $75 per hour. No award to 
compensate an expert witness shall exceed the highest rate at which the 
Board pays expert witnesses. An award may include the reasonable 
expenses of the attorney, agent, or expert witness as a separate item, 
if the attorney, agent, or expert witness ordinarily charges clients 
separately for such expenses.
    (b) Determination of reasonableness of fees. In determining the 
reasonableness of the fee sought for an attorney, agent, or expert 
witness, subject to the limits set forth above, the administrative law 
judge shall consider the following:
    (1) If the attorney, agent, or expert witness is in private 
practice, his or her customary fee for like services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent, or expert witness ordinarily performs 
services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (c) Awards for studies. The reasonable cost of any study, analysis, 
test, project, or similar matter prepared on behalf of an applicant may 
be awarded to the extent that the charge for the service does not exceed 
the prevailing rate payable for similar services, and the study or other 
matter was necessary solely for preparation of the applicant's case and 
not otherwise required by law or sound business or financial practice.



Sec. 263.107  Statement of fees and expenses.

    The application shall be accompanied by a statement fully 
documenting the fees and expenses for which an award is sought. A 
separate itemized statement shall be submitted for each professional 
firm or individual whose services are covered by the application, 
showing the hours spent in work in connection with the proceeding by 
each individual, a description of the specific services performed, the 
rate at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services performed. The administrative law judge or the Board may 
require the applicant to provide vouchers, receipts, or other 
substantiation for any expenses claimed.



Sec. 263.108  Responses to application.

    (a) By counsel for the Board. (1) Within 20 days after service of an 
application, counsel for the Board may file an answer to the 
application.
    (2) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the Board's 
position. If the answer is based on any alleged facts not already in the 
record of the proceeding, the answer shall include either supporting 
affidavits or a request for further proceedings under Sec. 263.109, or 
both.
    (b) Reply to answer. The applicant may file a reply only if the 
Board has addressed in its answer any of the following issues: that the 
position of the agency was substantially justified, that the applicant 
unduly protracted the proceedings, or that special circumstances make an 
award unjust. Any reply authorized by this section shall be filed within 
15 days of service of the answer. If the reply is based on any alleged 
facts not already in the record of the proceeding, the reply shall 
include either supporting affidavits or a request for further 
proceedings under Sec. 263.109, or both.
    (c) Additional response. Additional filings in the nature of 
pleadings may be submitted only by leave of the administrative law 
judge.



Sec. 263.109  Further proceedings.

    (a) General rule. The determination of a recommended award shall be 
made by the administrative law judge on the

[[Page 703]]

basis of the written record of the adversary adjudication, including any 
supporting affidavits submitted in connection with the application, 
unless, on the motion of either the applicant or Board counsel, or sua 
sponte, the administrative law judge or the Board orders further 
proceedings to amplify the record such as an informal conference, oral 
argument, additional written submissions, or an evidentiary hearing. 
Such further proceedings shall be held only when necessary for full and 
fair resolution of the issues arising from the application and shall be 
conducted promptly and expeditiously.
    (b) Request for further proceedings. A request for further 
proceedings under this section shall specifically identify the 
information sought or the issues in dispute and shall explain why 
additional proceedings are necessary.
    (c) Hearing. The administrative law judge shall hold an oral 
evidentiary hearing only on disputed issues of material fact which 
cannot be adequately resolved through written submissions.



Sec. 263.110  Recommended decision.

    The administrative law judge shall file with the Board a recommended 
decision on the fee application not later than 30 days after the 
submission of all pleadings and evidentiary material concerning the 
application. The recommended decision shall include written proposed 
findings and conclusions on the applicant's eligibility and its status 
as a prevailing party and, if applicable, an explanation of the reasons 
for any difference between the amount requested and the amount of the 
recommended award. The recommended decision shall also include, if at 
issue, proposed findings as to whether the Board's position was 
substantially justified, whether the applicant unduly protracted the 
proceedings, or whether special circumstances make an award unjust. The 
administrative law judge shall file the record of the proceeding on the 
fee application upon the filing of the recommended decision and, at the 
same time, serve upon each party a copy of the recommended decision, 
findings, conclusions, and proposed order.



Sec. 263.111  Action by the Board.

    (a) Exceptions to recommended decision. Within 20 days after service 
of the recommended decision, findings, conclusions, and proposed order, 
the applicant or counsel for the Board may file written exceptions 
thereto. A supporting brief may also be filed.
    (b) Decision by the Board. The Board shall render its decision 
within 90 days after it has notified the parties that the matter has 
been received for decision. The Board shall serve copies of the decision 
and order of the Board upon the parties. Judicial review of the decision 
and order may be obtained as provided in 5 U.S.C. 504(c)(2).



 Subpart H--Issuance and Review of Orders Pursuant to Prompt Corrective 
         Action Provisions of the Federal Deposit Insurance Act

    Source: 57 FR 44888, Sept. 29, 1992, unless otherwise noted.



Sec. 263.201  Scope.

    (a) The rules and procedures set forth in this subpart apply to 
state member banks, companies that control state member banks or are 
affiliated with such banks, and senior executive officers and directors 
of state member banks that are subject to the provisions of section 38 
of the Federal Deposit Insurance Act (section 38) and subpart B of part 
208 of this chapter.



Sec. 263.202  Directives to take prompt regulatory action.

    (a) Notice of intent to issue directive--(1) In general. The Board 
shall provide an undercapitalized, significantly undercapitalized, or 
critically undercapitalized state member bank or, where appropriate, any 
company that controls the bank, prior written notice of the Board's 
intention to issue a directive requiring such bank or company to take 
actions or to follow proscriptions described in section 38 that are 
within the Board's discretion to require or impose under section 38 of 
the FDI Act, including sections 38(e)(5), (f)(2), (f)(3), or (f)(5). The 
bank shall have such time to respond to a proposed directive as provided 
by the

[[Page 704]]

Board under paragraph (c) of this section.
    (2) Immediate issuance of final directive. If the Board finds it 
necessary in order to carry out the purposes of section 38 of the FDI 
Act, the Board may, without providing the notice prescribed in paragraph 
(a)(1) of this section, issue a directive requiring a state member bank 
or any company that controls a state member bank immediately to take 
actions or to follow proscriptions described in section 38 that are 
within the Board's discretion to require or impose under section 38 of 
the FDI Act, including section 38(e)(5), (f)(2), (f)(3), or (f)(5). A 
bank or company that is subject to such an immediately effective 
directive may submit a written appeal of the directive to the Board. 
Such an appeal must be received by the Board within 14 calendar days of 
the issuance of the directive, unless the Board permits a longer period. 
The Board shall consider any such appeal, if filed in a timely matter, 
within 60 days of receiving the appeal. During such period of review, 
the directive shall remain in effect unless the Board, in its sole 
discretion, stays the effectiveness of the directive.
    (b) Contents of notice. A notice of intention to issue a directive 
shall include:
    (1) A statement of the bank's capital measures and capital levels;
    (2) A description of the restrictions, prohibitions, or affirmative 
actions that the Board proposes to impose or require;
    (3) The proposed date when such restrictions or prohibitions would 
be effective or the proposed date for completion of such affirmative 
actions; and
    (4) The date by which the bank or company subject to the directive 
may file with the Board a written response to the notice.
    (c) Response to notice--(1) Time for response. A bank or company may 
file a written response to a notice of intent to issue a directive 
within the time period set by the Board. The date shall be at least 14 
calendar days from the date of the notice unless the Board determines 
that a shorter period is appropriate in light of the financial condition 
of the bank or other relevant circumstances.
    (2) Content of response. The response should include:
    (i) An explanation why the action proposed by the Board is not an 
appropriate exercise of discretion under section 38;
    (ii) Any recommended modification of the proposed directive; and
    (iii) Any other relevant information, mitigating circumstances, 
documentation, or other evidence in support of the position of the bank 
or company regarding the proposed directive.
    (d) Board consideration of response. After considering the response, 
the Board may:
    (1) Issue the directive as proposed or in modified form;
    (2) Determine not to issue the directive and so notify the bank or 
company; or
    (3) Seek additional information or clarification of the response 
from the bank or company, or any other relevant source.
    (e) Failure to file response. Failure by a bank or company to file 
with the Board, within the specified time period, a written response to 
a proposed directive shall constitute a waiver of the opportunity to 
respond and shall constitute consent to the issuance of the directive.
    (f) Request for modification or rescission of directive. Any bank or 
company that is subject to a directive under this subpart may, upon a 
change in circumstances, request in writing that the Board reconsider 
the terms of the directive, and may propose that the directive be 
rescinded or modified. Unless otherwise ordered by the Board, the 
directive shall continue in place while such request is pending before 
the Board.



Sec. 263.203  Procedures for reclassifying a state member bank based on criteria other than capital.

    (a) Reclassification based on unsafe or unsound condition or 
practice--(1) Issuance of notice of proposed reclassification--(i) 
Grounds for reclassification. (A) Pursuant to Sec. 208.33(c) of 
Regulation H (12 CFR 208.33(c)), the Board may reclassify a well 
capitalized bank as adequately capitalized or subject an adequately 
capitalized or undercapitalized institution to the supervisory actions

[[Page 705]]

applicable to the next lower capital category if:
    (1) The Board determines that the bank is in unsafe or unsound 
condition; or
    (2) The Board deems the bank to be engaged in an unsafe or unsound 
practice and not to have corrected the deficiency.
    (B) Any action pursuant to this paragraph (a)(1)(i) shall 
hereinafter be referred to as ``reclassification.''
    (ii) Prior notice to institution. Prior to taking action pursuant to 
Sec. 208.33(c) of this chapter, the Board shall issue and serve on the 
bank a written notice of the Board's intention to reclassify the bank.
    (2) Contents of notice. A notice of intention to reclassify a bank 
based on unsafe or unsound condition shall include:
    (i) A statement of the bank's capital measures and capital levels 
and the category to which the bank would be reclassified;
    (ii) The reasons for reclassification of the bank;
    (iii) The date by which the bank subject to the notice of 
reclassification may file with the Board a written appeal of the 
proposed reclassification and a request for a hearing, which shall be at 
least 14 calendar days from the date of service of the notice unless the 
Board determines that a shorter period is appropriate in light of the 
financial condition of the bank or other relevant circumstances.
    (3) Response to notice of proposed reclassification. A bank may file 
a written response to a notice of proposed reclassification within the 
time period set by the Board. The response should include:
    (i) An explanation of why the bank is not in unsafe or unsound 
condition or otherwise should not be reclassified;
    (ii) Any other relevant information, mitigating circumstances, 
documentation, or other evidence in support of the position of the bank 
or company regarding the reclassification.
    (4) Failure to file response. Failure by a bank to file, within the 
specified time period, a written response with the Board to a notice of 
proposed reclassification shall constitute a waiver of the opportunity 
to respond and shall constitute consent to the reclassification.
    (5) Request for hearing and presentation of oral testimony or 
witnesses. The response may include a request for an informal hearing 
before the Board or its designee under this section. If the bank desires 
to present oral testimony or witnesses at the hearing, the bank shall 
include a request to do so with the request for an informal hearing. A 
request to present oral testimony or witnesses shall specify the names 
of the witnesses and the general nature of their expected testimony. 
Failure to request a hearing shall constitute a waiver of any right to a 
hearing, and failure to request the opportunity to present oral 
testimony or witnesses shall constitute a waiver of any right to present 
oral testimony or witnesses.
    (6) Order for informal hearing. Upon receipt of a timely written 
request that includes a request for a hearing, the Board shall issue an 
order directing an informal hearing to commence no later than 30 days 
after receipt of the request, unless the bank requests a later date. The 
hearing shall be held in Washington, DC or at such other place as may be 
designated by the Board, before a presiding officer(s) designated by the 
Board to conduct the hearing.
    (7) Hearing procedures. (i) The bank shall have the right to 
introduce relevant written materials and to present oral argument at the 
hearing. The bank may introduce oral testimony and present witnesses 
only if expressly authorized by the Board or the presiding officer(s). 
Neither the provisions of the Administrative Procedure Act (5 U.S.C. 
554-557) governing adjudications required by statute to be determined on 
the record nor the Uniform Rules of Practice and Procedure in subpart A 
of this part apply to an informal hearing under this section unless the 
Board orders that such procedures shall apply.
    (ii) The informal hearing shall be recorded, and a transcript shall 
be furnished to the bank upon request and payment of the cost thereof. 
Witnesses need not be sworn, unless specifically requested by a party or 
the presiding officer(s). The presiding officer(s) may ask questions of 
any witness.
    (iii) The presiding officer(s) may order that the hearing be 
continued for

[[Page 706]]

a reasonable period (normally five business days) following completion 
of oral testimony or argument to allow additional written submissions to 
the hearing record.
    (8) Recommendation of presiding officers. Within 20 calendar days 
following the date the hearing and the record on the proceeding are 
closed, the presiding officer(s) shall make a recommendation to the 
Board on the reclassification.
    (9) Time for decision. Not later than 60 calendar days after the 
date the record is closed or the date of the response in a case where no 
hearing was requested, the Board will decide whether to reclassify the 
bank and notify the bank of the Board's decision.
    (b) Request for rescission of reclassification. Any bank that has 
been reclassified under this section, may, upon a change in 
circumstances, request in writing that the Board reconsider the 
reclassification, and may propose that the reclassification be rescinded 
and that any directives issued in connection with the reclassification 
be modified, rescinded, or removed. Unless otherwise ordered by the 
Board, the bank shall remain subject to the reclassification and to any 
directives issued in connection with that reclassification while such 
request is pending before the Board.



Sec. 263.204  Order to dismiss a director or senior executive officer.

    (a) Service of notice. When the Board issues and serves a directive 
on a state member bank pursuant to Sec. 263.202 requiring the bank to 
dismiss from office any director or senior executive officer under 
section 38(f) (2) (F) (ii) of the FDI Act, the Board shall also serve a 
copy of the directive, or the relevant portions of the directive where 
appropriate, upon the person to be dismissed.
    (b) Response to directive--(1) Request for reinstatement. A director 
or senior executive officer who has been served with a directive under 
paragraph (a) of this section (Respondent) may file a written request 
for reinstatement. The request for reinstatement shall be filed within 
10 calendar days of the receipt of the directive by the Respondent, 
unless further time is allowed by the Board at the request of the 
Respondent.
    (2) Contents of request; informal hearing. The request for 
reinstatement shall include reasons why the Respondent should be 
reinstated, and may include a request for an informal hearing before the 
Board or its designee under this section. If the Respondent desires to 
present oral testimony or witnesses at the hearing, the Respondent shall 
include a request to do so with the request for an informal hearing. The 
request to present oral testimony or witnesses shall specify the names 
of the witnesses and the general nature of their expected testimony. 
Failure to request a hearing shall constitute a waiver of any right to a 
hearing and failure to request the opportunity to present oral testimony 
or witnesses shall constitute a waiver of any right or opportunity to 
present oral testimony or witnesses.
    (3) Effective date. Unless otherwise ordered by the Board, the 
dismissal shall remain in effect while a request for reinstatement is 
pending.
    (c) Order for informal hearing. Upon receipt of a timely written 
request from a Respondent for an informal hearing on the portion of a 
directive requiring a bank to dismiss from office any director or senior 
executive officer, the Board shall issue an order directing an informal 
hearing to commence no later than 30 days after receipt of the request, 
unless the Respondent requests a later date. The hearing shall be held 
in Washington, DC, or at such other place as may be designated by the 
Board, before a presiding officer(s) designated by the Board to conduct 
the hearing.
    (d) Hearing procedures. (1) A Respondent may appear at the hearing 
personally or through counsel. A Respondent shall have the right to 
introduce relevant written materials and to present oral argument. A 
Respondent may introduce oral testimony and present witnesses only if 
expressly authorized by the Board or the presiding officer(s). Neither 
the provisions of the Administrative Procedure Act governing 
adjudications required by statute to be determined on the record nor the 
Uniform Rules of Practice and Procedure

[[Page 707]]

in subpart A of this part apply to an informal hearing under this 
section unless the Board orders that such procedures shall apply.
    (2) The informal hearing shall be recorded, and a transcript shall 
be furnished to the Respondent upon request and payment of the cost 
thereof. Witnesses need not be sworn, unless specifically requested by a 
party or the presiding officer(s). The presiding officer(s) may ask 
questions of any witness.
    (3) The presiding officer(s) may order that the hearing be continued 
for a reasonable period (normally five business days) following 
completion of oral testimony or argument to allow additional written 
submissions to the hearing record.
    (e) Standard for review. A Respondent shall bear the burden of 
demonstrating that his or her continued employment by or service with 
the bank would materially strengthen the bank's ability:
    (1) To become adequately capitalized, to the extent that the 
directive was issued as a result of the bank's capital level or failure 
to submit or implement a capital restoration plan; and
    (2) To correct the unsafe or unsound condition or unsafe or unsound 
practice, to the extent that the directive was issued as a result of 
classification of the bank based on supervisory criteria other than 
capital, pursuant to section 38(g) of the FDI Act.
    (f) Recommendation of presiding officers. Within 20 calendar days 
following the date the hearing and the record on the proceeding are 
closed, the presiding officer(s) shall make a recommendation to the 
Board concerning the Respondent's request for reinstatement with the 
bank.
    (g) Time for decision. Not later than 60 calendar days after the 
date the record is closed or the date of the response in a case where no 
hearing was requested, the Board shall grant or deny the request for 
reinstatement and notify the Respondent of the Board's decision. If the 
Board denies the request for reinstatement, the Board shall set forth in 
the notification the reasons for the Board's action.



Sec. 263.205  Enforcement of directives.

    (a) Judicial remedies. Whenever a state member bank or company that 
controls a state member bank fails to comply with a directive issued 
under section 38, the Board may seek enforcement of the directive in the 
appropriate United States district court pursuant to section 8(i) (1) of 
the FDI Act.
    (b) Administrative remedies--(1) Failure to comply with directive. 
Pursuant to section 8(i) (2) (A) of the FDI Act, the Board may assess a 
civil money penalty against any state member bank or company that 
controls a state member bank that violates or otherwise fails to comply 
with any final directive issued under section 38 and against any 
institution-affiliated party who participates in such violation or 
noncompliance.
    (2) Failure to implement capital restoration plan. The failure of a 
bank to implement a capital restoration plan required under section 38, 
subpart B of Regulation H (12 CFR part 208, subpart B), or this subpart, 
or the failure of a company having control of a bank to fulfill a 
guarantee of a capital restoration plan made pursuant to section 38 (e) 
(2) of the FDI Act shall subject the bank or company to the assessment 
of civil money penalties pursuant to section 8(i) (2) (A) of the FDI 
Act.
    (c) Other enforcement action. In addition to the actions described 
in paragraphs (a) and (b) of this section, the Board may seek 
enforcement of the provisions of section 38 or subpart B of Regulation H 
(12 CFR part 208, subpart B) through any other judicial or 
administrative proceeding authorized by law.



  Subpart I--Submission and Review of Safety and Soundness Compliance 
      Plans and Issuance of Orders To Correct Safety and Soundness 
                              Deficiencies

    Source: 60 FR 35682, July 10, 1995, unless otherwise noted.



Sec. 263.300  Scope.

    The rules and procedures set forth in this subpart apply to State 
member

[[Page 708]]

banks that are subject to the provisions of section 39 of the Federal 
Deposit Insurance Act (section 39) (12 U.S.C. 1831p-1).



Sec. 263.301  Purpose.

    Section 39 of the FDI Act requires the Board to establish safety and 
soundness standards. Pursuant to section 39, a bank may be required to 
submit a compliance plan if it is not in compliance with a safety and 
soundness standard established by guideline under section 39(a) or (b). 
An enforceable order under section 8 may be issued if, after being 
notified that it is in violation of a safety and soundness standard 
established under section 39, the bank fails to submit an acceptable 
compliance plan or fails in any material respect to implement an 
accepted plan. This subpart establishes procedures for requiring 
submission of a compliance plan and issuing an enforceable order 
pursuant to section 39.



Sec. 263.302  Determination and notification of failure to meet safety and soundness standard and request for compliance plan.

    (a) Determination. The Board may, based upon an examination, 
inspection, or any other information that becomes available to the 
Board, determine that a bank has failed to satisfy the safety and 
soundness standards contained in the Interagency Guidelines Establishing 
Standards for Safety and Soundness set out in appendix D to part 208 of 
this chapter.
    (b) Request for compliance plan. If the Board determines that a 
State member bank has failed a safety and soundness standard pursuant to 
paragraph (a) of this section, the Board may request, by letter or 
through a report of examination, the submission of a compliance plan, 
and the bank shall be deemed to have notice of the request three days 
after mailing of the letter by the Board or delivery of the report of 
examination.



Sec. 263.303  Filing of safety and soundness compliance plan.

    (a) Schedule for filing compliance plan--(1) In general. A State 
member bank shall file a written safety and soundness compliance plan 
with the Board within 30 days of receiving a request for a compliance 
plan pursuant to Sec. 263.302(b), unless the Board notifies the bank in 
writing that the plan is to be filed within a different period.
    (2) Other plans. If a State member bank is obligated to file, or is 
currently operating under, a capital restoration plan submitted pursuant 
to section 38 of the FDI Act (12 U.S.C. 1831o), a cease-and-desist order 
entered into pursuant to section 8 of the FDI Act, a formal or informal 
agreement, or a response to a report of examination or report of 
inspection, it may, with the permission of the Board, submit a 
compliance plan under this section as part of that plan, order, 
agreement, or response, subject to the deadline provided in paragraph 
(a)(1) of this section.
    (b) Contents of plan. The compliance plan shall include a 
description of the steps the State member bank will take to correct the 
deficiency and the time within which those steps will be taken.
    (c) Review of safety and soundness compliance plans. Within 30 days 
after receiving a safety and soundness compliance plan under this 
subpart, the Board shall provide written notice to the bank of whether 
the plan has been approved or seek additional information from the bank 
regarding the plan. The Board may extend the time within which notice 
regarding approval of a plan will be provided.
    (d) Failure to submit or implement a compliance plan. (1) 
Supervisory actions. If a State member bank fails to submit an 
acceptable plan within the time specified by the Board or fails in any 
material respect to implement a compliance plan, then the Board shall, 
by order, require the bank to correct the deficiency and may take 
further actions provided in section 39(e)(2)(B). Pursuant to section 
39(e)(3), the Board may be required to take certain actions if the bank 
commenced operations or experienced a change in control within the 
previous 24-month period, or the bank experienced extraordinary growth 
during the previous 18-month period.
    (2) Extraordinary growth. For purposes of paragraph (d)(1) of this 
section, extraordinary growth means an increase in assets of more than 
7.5 percent during

[[Page 709]]

any quarter within the 18-month period preceding the issuance of a 
request for submission of a compliance plan, by a bank that is not well 
capitalized for purposes of section 38 of the FDI Act. For purposes of 
calculating an increase in assets, assets acquired through merger or 
acquisition approved pursuant to the Bank Merger Act (12 U.S.C. 1828(c)) 
will be excluded.
    (e) Amendment of compliance plan. A State member bank that has filed 
an approved compliance plan may, after prior written notice to and 
approval by the Board, amend the plan to reflect a change in 
circumstance. Until such time as a proposed amendment has been approved, 
the bank shall implement the compliance plan as previously approved.



Sec. 263.304  Issuance of orders to correct deficiencies and to take or refrain from taking other actions.

    (a) Notice of intent to issue order--(1) In general. The Board shall 
provide a bank prior written notice of the Board's intention to issue an 
order requiring the bank to correct a safety and soundness deficiency or 
to take or refrain from taking other actions pursuant to section 39 of 
the FDI Act. The bank shall have such time to respond to a proposed 
order as provided by the Board under paragraph (c) of this section.
    (2) Immediate issuance of final order. If the Board finds it 
necessary in order to carry out the purposes of section 39 of the FDI 
Act, the Board may, without providing the notice prescribed in paragraph 
(a)(1) of this section, issue an order requiring a bank immediately to 
take actions to correct a safety and soundness deficiency or take or 
refrain from taking other actions pursuant to section 39. A State member 
bank that is subject to such an immediately effective order may submit a 
written appeal of the order to the Board. Such an appeal must be 
received by the Board within 14 calendar days of the issuance of the 
order, unless the Board permits a longer period. The Board shall 
consider any such appeal, if filed in a timely matter, within 60 days of 
receiving the appeal. During such period of review, the order shall 
remain in effect unless the Board, in its sole discretion, stays the 
effectiveness of the order.
    (b) Contents of notice. A notice of intent to issue an order shall 
include:
    (1) A statement of the safety and soundness deficiency or 
deficiencies that have been identified at the bank;
    (2) A description of any restrictions, prohibitions, or affirmative 
actions that the Board proposes to impose or require;
    (3) The proposed date when such restrictions or prohibitions would 
be effective or the proposed date for completion of any required action; 
and
    (4) The date by which the bank subject to the order may file with 
the Board a written response to the notice.
    (c) Response to notice--(1) Time for response. A bank may file a 
written response to a notice of intent to issue an order within the time 
period set by the Board. Such a response must be received by the Board 
within 14 calendar days from the date of the notice unless the Board 
determines that a different period is appropriate in light of the safety 
and soundness of the bank or other relevant circumstances.
    (2) Contents of response. The response should include:
    (i) An explanation why the action proposed by the Board is not an 
appropriate exercise of discretion under section 39;
    (ii) Any recommended modification of the proposed order; and
    (iii) Any other relevant information, mitigating circumstances, 
documentation, or other evidence in support of the position of the bank 
regarding the proposed order.
    (d) Agency consideration of response. After considering the 
response, the Board may:
    (1) Issue the order as proposed or in modified form;
    (2) Determine not to issue the order and so notify the bank; or
    (3) Seek additional information or clarification of the response 
from the bank, or any other relevant source.
    (e) Failure to file response. Failure by a bank to file with the 
Board, within the specified time period, a written response to a 
proposed order shall constitute a waiver of the opportunity to respond 
and shall constitute consent to the issuance of the order.

[[Page 710]]

    (f) Request for modification or rescission of order. Any bank that 
is subject to an order under this subpart may, upon a change in 
circumstances, request in writing that the Board reconsider the terms of 
the order, and may propose that the order be rescinded or modified. 
Unless otherwise ordered by the Board, the order shall continue in place 
while such request is pending before the Board.



Sec. 263.305  Enforcement of orders.

    (a) Judicial remedies. Whenever a State member bank fails to comply 
with an order issued under section 39, the Board may seek enforcement of 
the order in the appropriate United States district court pursuant to 
section 8(i)(1) of the FDI Act.
    (b) Failure to comply with order. Pursuant to section 8(i)(2)(A) of 
the FDI Act, the Board may assess a civil money penalty against any 
State member bank that violates or otherwise fails to comply with any 
final order issued under section 39 and against any institution-
affiliated party who participates in such violation or noncompliance.
    (c) Other enforcement action. In addition to the actions described 
in paragraphs (a) and (b) of this section, the Board may seek 
enforcement of the provisions of section 39 or this part through any 
other judicial or administrative proceeding authorized by law.



PART 264--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




    Authority: 5 U.S.C. 7301; 12 U.S.C. 244.



Sec. 264.101  Cross-reference to employees' ethical conduct standards and financial disclosure regulations.

    Employees of the Board of Governors of the Federal Reserve System 
(Board) are subject to the executive branch-wide standards of ethical 
conduct at 5 CFR part 2635 and the Board's regulation at 5 CFR part 
6801, which supplements the executive branch-wide standards, and the 
executive branch-wide financial disclosure regulation at 5 CFR part 
2634.

[61 FR 53830, Oct. 16, 1996]



PART 264a--RESERVE BANK DIRECTORS--ACTIONS AND RESPONSIBILITIES--Table of Contents




Sec.
264a.1  Purpose.
264a.2  Definitions.
264a.3  Prohibition against director participation in particular 
          matters.
264a.4  Granting of ad hoc exemptions.
264a.5  Exemption of remote or inconsequential financial interests.

    Authority: 18 U.S.C. 208, as amended by the Federal Reserve Reform 
Act of 1977, Pub. L. 95-188, sec. 205, 91 Stat. 1387; 12 U.S.C. 248, 
301.

    Source: 43 FR 24667, June 7, 1978, unless otherwise noted.



Sec. 264a.1  Purpose.

    Directors of Federal Reserve Banks are charged by law with the 
responsibility of supervising and controlling the operations of the 
Reserve Banks, under the general supervision of the Board of Governors, 
and for assuring that the affairs of the Banks are administered fairly 
and impartially. The Federal Reserve Act provides that Reserve bank 
directors will be selected with due consideration to the interests of 
various segments of the population and the economy, thus assuring that 
the Federal Reserve System will receive the benefit of the experienced 
judgment of individuals from a broad spectrum of the communities that 
will be affected by actions of the System. For example, the provisions 
of section 4 of the Federal Reserve Act, as amended by the Federal 
Reserve Reform Act of 1977, provide that both class B and C directors 
shall be chosen to represent the public and with ``due but not exclusive 
consideration to the interests of agriculture, commerce, industry, 
services, labor, and consumers.'' Section 4 further provides that class 
A directors ``shall be chosen by and be representative of the stock-
holding banks'' of the Federal Reserve System. Recognizing that Reserve 
Bank directors may have, in their private capacities, business, 
consumer, or other interests to which legitimate attention is to be 
given; but recognizing also that these same individuals have fiduciary 
responsibilities as directors of Reserve Banks, this regulation is 
promulgated for the purpose

[[Page 711]]

of assuring preservation of and adherence to the intent of both the 
Federal Reserve Act and section 208 of title 18, United States Code.



Sec. 264a.2  Definitions.

    For purposes of this part, the following definitions shall apply:
    (a) The term director, unless otherwise indicated, means a head 
office or branch director of a Federal Reserve Bank.
    (b) The term Board of Governors means the Board of Governors of the 
Federal Reserve System.
    (c) The term board means the board of directors of a Federal Reserve 
Bank or branch of a Federal Reserve Bank.
    (d) The term related person means (1) a partner of a director, (2) 
any organization in which the director is serving as an officer, 
director, trustee, partner or employee, or (3) any person or 
organization with whom the director is negotiating or has any 
arrangement concerning prospective employment.
    (e) The term participate means to act through decision, approval, 
disapproval, recommendation, the rendering of advice, investigation, or 
as is otherwise within the meaning of the provisions of 18 U.S.C. 208.
    (f) The term particular matter means a judicial or other proceeding, 
application, request for a ruling or other determination, contract, 
claim, controversy, charge, accusation, arrest or other subject within 
the meaning of the provisions of 18 U.S.C. 208.
    (g) The term discussions means the consideration of a matter by a 
board and may include, depending upon the board's statutory authority, 
votes taken or other decisional action.



Sec. 264a.3  Prohibition against director participation in particular matters.

    (a) Pursuant to the provisions of 18 U.S.C. 208(a), no director may 
participate personally and substantially in a particular matter in 
which, to the director's knowledge, the director, the director's spouse 
or minor child, or related persons have a financial interest unless such 
action is otherwise permitted by 18 U.S.C. 208(b) and Sec. 264a.4 or 
Sec. 264a.5 of this part.
    (b) Except as provided by 18 U.S.C. 208(b) and Sec. 264a.4 or 
Sec. 264a.5 of this part, no director shall participate in deliberations 
or decisions of a Reserve Bank board when the question presented is 
whether the board should approve or ratify an extension of credit, 
advance, or discount by a Reserve Bank to a bank which is, in the 
opinion of the President of the Reserve Bank, in a hazardous financial 
condition, and
    (1) Where the director has knowledge that he, his spouse, or minor 
child has a financial interest in the proposed transaction as a result 
of:
    (i) Being a borrower or applicant for credit from the borrowing 
bank, other than consumer credit as defined in Regulation Z (12 CFR 
226.2(p));
    (ii) Maintaining a depositary relationship with the borrowing bank 
in an amount exceeding that covered by Federal deposit insurance;
    (iii) Owning stock, stock options, bonds, notes or other forms of 
indebtedness issued by the borrowing bank, or its registered parent 
holding company, the market value of which exceeds $100,000 or 
represents more than 1 percent of the value of that class of stock, 
stock option, bond, note, or other form of indebtedness issued by the 
borrowing bank or its registered parent holding company; or
    (iv) Employment in a policy making position or service as a director 
with the borrowing bank or the registered parent holding company of the 
borrowing bank.
    (2) Where the director has a financial interest in the proposed 
transaction as a result of:
    (i) Service by the director as an officer or director of another 
bank that is known by the director to be located in the same geographic 
market for local banking services as the borrowing bank and is known by 
the director to be in direct and substantial competition with the 
borrowing bank;
    (ii) Service by the director as an officer or director of another 
bank that is known by the director:
    (A) To have outstanding or to be negotiating an extension of credit 
from, or to, the borrowing bank, other than Federal funds or foreign 
exchange transactions; or
    (B) To maintain a correspondent or depositary relationship with the 
borrowing bank in an amount exceeding

[[Page 712]]

that covered by Federal deposit insurance; or
    (iii) Service by the director as one of the principal officers of 
any business enterprise that constitutes the director's primary business 
or professional occupation where such business enterprise is known by 
the director:
    (A) To have outstanding or to be negotiating a direct and 
substantial extension of credit or line of credit from the borrowing 
bank;
    (B) To maintain a principal depositary relationship with the 
borrowing bank in an amount exceeding that covered by Federal deposit 
insurance; or
    (C) To own stock, stock options, bonds, notes or other forms of 
indebtedness issued by the borrowing bank, the market value of which 
exceeds $100,000 or represents more than 1 percent of the value of that 
class of stock, stock options, bonds, notes or other form of 
indebtedness issued.
    (3) Where the director has knowledge that a partner of the director 
has a financial interest in the proposed transaction; or
    (4) Where the director has a financial interest in the proposed 
transaction as a result of the director's participation in current 
negotiations or arrangements concerning prospective employment with the 
borrowing bank.
    (c) It is recognized that a Reserve Bank board can, within the 
spirit and letter of its responsibilities, delegate to appropriate 
officials of the Reserve Bank authority to act with respect to 
extensions of credit to individual banks determined to be in hazardous 
financial condition, thus avoiding both ratification by the board and 
applicability to the directors of the prohibitions of this section. Such 
delegation would not preclude continued advice to the board of 
appropriate information regarding bank conditions in the district so as 
to enable the board to perform fully its general oversight 
responsibilities.



Sec. 264a.4  Granting of ad hoc exemptions.

    (a) The prohibitions of 18 U.S.C. 208 and Sec. 264a.3 of this part 
shall not apply if the director first advises the Board of Governors of 
the nature and circumstances of the particular matter before the board 
and makes full disclosure of the financial interest involved and 
receives in advance a written determination made by the Board of 
Governors, or its designee, pursuant to 18 U.S.C. 208(b)(1), that the 
interest is not so substantial as to be deemed likely to affect the 
integrity of the services which the Federal Reserve System may expect 
from such director.
    (b) Telegraphic communications from the President, First Vice 
President, Secretary or General Counsel of a Reserve Bank to the Board 
of Governors on behalf of a director and setting forth the precise 
nature of both the particular matter before the board and the financial 
interest involved shall be considered to meet the director's duty of 
full disclosure set forth in Sec. 264a.4(a). Telegraphic response to the 
same identified officials of the Reserve Bank by the Board of Governors, 
or its designee, shall be deemed to meet the requirement of a written 
determination by the Board of Governors set forth in Sec. 264a.4.



Sec. 264a.5  Exemption of remote or inconsequential financial interests.

    (a) Pursuant to the provisions of 18 U.S.C. 208(b)(2), certain 
actions of directors of Federal Reserve Banks may be exempted from the 
prohibitions of 18 U.S.C. 208(a) and Sec. 264a.3 of this part, if by 
general rule or regulation published in the Federal Register, the 
financial interest involved has been determined to be too remote or too 
inconsequential to affect the integrity of directors' services. 
Financial interests will be viewed as too remote or too inconsequential:
    (1) In circumstances in which a director's action on a matter will 
not directly, substantially, and predictably affect the financial 
interest; or
    (2) In circumstances in which a director's independence of judgment 
will not be affected by the financial interest.
    (b) The Board of Governors has determined that the financial 
interests of a director, the director's spouse or minor child, or 
related persons in the following matters are too remote or too 
inconsequential to affect the integrity of directors' services and, 
accordingly, the prohibitions of 18 U.S.C. 208(a) and Sec. 264a.3 of 
this part shall not apply to a director's participation in such matters:

[[Page 713]]

    (1) Deliberations concerning or ratification of extensions of 
credit, advances, or discounts to any bank that has not been determined 
to be in hazardous financial condition by the President of the Reserve 
Bank, provided such credit extensions, advances, or discounts are made 
under appropriate provisions of the Federal Reserve Act, regulations and 
policies of the Board of Governors and the Federal Reserve Banks, and 
the established operating procedures at the director's Reserve Bank;
    (2) Deliberations concerning or affecting any financial institution, 
to the extent the financial interest in such matters results from:
    (i) Maintenance at the financial institution of a checking or other 
deposit account covered by Federal Insurance;
    (ii) A fiduciary relationship involving the utilization of the 
financial institution's trust or investment advisory services;
    (iii) The receipt from the financial institution of consumer credit, 
as that term is defined in Regulation Z (12 CFR 226.2(p)); or
    (iv) Participation in Federal funds or foreign exchange transactions 
with the financial institution;
    (3) Deliberations concerning or affecting any financial institution 
or other enterprise to the extent the financial interest results from 
ownership of stock, stock options, bonds, notes, or other forms of 
indebtedness, the market value of which is less than $100,000 and 
represents less than 1 percent of the value of that class of stock, 
stock option, bond, note or other form of indebtedness issued by the 
financial institution or other enterprise.
    (4) Deliberations concerning or affecting any financial institution 
or other enterprise to the extent the financial interest results from 
holdings in a diversified and widely held mutual fund, investment 
company, pension or retirement plan that, in turn, may have invested in 
the financial institution, provided that the director does not 
contribute to investment decisions of the fund, company, or plan.
    (c) Section 264a.3(b) of this part specifically identifies certain 
financial interests, the existence and knowledge of which will preclude 
a director from participating in deliberations or decisions of a Reserve 
Bank board (except through recourse to the procedures set forth in 
Sec. 264a.4) when the question presented is whether the board should 
approve or ratify an extension of credit, advance, or discount by a 
Reserve Bank to a bank which is, in the opinion of the President of the 
Reserve Bank, in hazardous financial condition. Financial interests 
identified in Sec. 264a.3(b) are viewed by the Board as offering a clear 
potential for conflict. The Board has determined that any other 
financial interest that a director, the director's spouse or minor 
child, or related persons may have in such extensions of credit, 
advances, or discounts to banks in hazardous condition are too remote or 
too inconsequential to affect the integrity of directors' services and, 
accordingly, the prohibitions of 18 U.S.C. 208(a) and Sec. 264a.3 of 
this part shall not apply to a director's participation in such matters. 
These would include, for example, financial interests that might result 
from:
    (1) A director's ownership of stock of a bank or business, other 
than a registered parent holding company of the borrowing bank, that may 
have an interest in the condition of the borrowing bank; or
    (2) A director's service as a director or trustee of a business or 
other organization, other than a bank or the registered parent holding 
company of the borrowing bank, that may, itself or through a subsidiary, 
have an interest in the condition of the borrowing bank.
    (d) The functions of directors often include their participation in 
discussions concerning (1) international, national, and regional 
economic and financial conditions, (2) monetary policy, (3) general 
conditions, trends or issues with respect to bank credit, (4) 
establishment of rates to be charged for all advances and discounts by 
Federal Reserve Banks, subject to review and determination of the Board 
of Governors pursuant to the Federal Reserve Act, (5) matters intended 
to have generally uniform application to banks within the Reserve Bank 
district, and (6) statutes and proposed or pending legislation in which 
the Federal Reserve System has a legitimate interest.

[[Page 714]]

The foregoing matters are not particular matters of the type described 
in 18 U.S.C. 208 and, therefore, that statute is not applicable to 
participation in such matters. However, even if the statute were held to 
be applicable to participation in such matters, the Board of Governors 
has determined that the financial interests of a director, the 
director's spouse or minor child, or related persons in such matters are 
too remote or too inconsequential to affect the integrity of directors' 
services and, accordingly, the prohibitions of 18 U.S.C. 208(a) and 
Sec. 264a.3 of this part shall not apply to a director's participation 
in such matters.
    (e) Nothing in this section shall preclude a director from 
refraining, to the extent consistent with responsibilities imposed upon 
the directors by the Federal Reserve Act, from participation in a 
particular matter. The Board hereby gives notice of its intention to 
undertake a continuing review of the experience of Reserve Bank boards 
under this regulation with a view to assuring preservation of and 
adherence to the intent of both the Federal Reserve Act and 18 U.S.C. 
208, as amended. In the course of such review, particular attention will 
be given to the provisions of this section.



PART 264b--RULES REGARDING FOREIGN GIFTS AND DECORATIONS--Table of Contents




Sec.
264b.1  Purpose and scope.
264b.2  Definitions.
264b.3  Foreign gifts.
264b.4  Foreign decorations.
264b.5  Disposal of foreign gifts and decorations.
264b.6  Official use of foreign gifts and decorations.
264b.7  Reporting requirements.
264b.8  Implementing procedures.
264b.9  Miscellaneous.

    Authority: 5 U.S.C. 552, 7342; and 12 U.S.C. 248(i).

    Source: 44 FR 64399, Nov. 7, 1979, unless otherwise noted.



Sec. 264b.1  Purpose and scope.

    This regulation implements the 1977 Amendments to the Foreign Gifts 
and Decorations Act, Pub. L. 95-105, which restricts Board Members' and 
employees' acceptance of foreign gifts and decorations. The restrictions 
apply to gifts whether they are tangible or intangible. Different rules 
apply depending on whether the gift has only ``minimal value.'' There 
are also rules regarding acceptance of decorations from foreign 
governments.



Sec. 264b.2  Definitions.

    (a) The term Board Members and employees means:
    (1) Members of the Board of Governors of the Federal Reserve System, 
officers, and other employees of the Board;
    (2) Consultants while employed by the Board; and acting on behalf of 
the Board; and
    (3) Spouses and dependents of Board Members, officers, employees, 
and consultants as defined in this section.
    (b) The term foreign government means any unit of a foreign 
governmental authority (or its agent or representative), including any 
foreign, national, state, local, or municipal government, and any 
international or multinational organization whose membership is composed 
of any such units.
    (c) The term decoration means an order, device, medal, badge, 
insignia, emblem, or award.



Sec. 264b.3  Foreign gifts.

    Except as provided below, Board Members and employees shall not 
request, or otherwise encourage the tender of, or accept, or retain, a 
tangible or intangible gift from a foreign government.
    (a) Gifts of minimal value. If not otherwise prohibited by Board 
regulations, Board members and employees may accept and retain a 
tangible or intangible gift of minimal value, intended as a souvenir or 
mark of courtesy, from a foreign government. A gift of minimal value is 
one having a retail value in the United States at the time of acceptance 
not in excess of $225 (or such higher amount established in 41 CFR part 
101-49).
    (b) Educational scholarships or medical treatment. Board Members and 
employees may accept and retain a gift of more than minimal value from a 
foreign government when such gift is in

[[Page 715]]

the nature of an educational scholarship or medical treatment.
    (c) Tangible gifts of more than minimal value. A tangible gift of 
more than minimal value tendered by a foreign government may be accepted 
when it appears that to refuse the gift would likely cause offense or 
embarrassment or otherwise adversely affect the foreign relations of the 
United States. Such a gift accepted under these circumstances is deemed 
to have been accepted on behalf of the United States, and, upon 
acceptance, it shall become the property of the United States. Within 60 
days after accepting a gift under these circumstances the member or 
employee must deposit the gift with the Secretary of the Board.
    (d) Travel or expenses for travel. Board Members and employees may 
accept gifts of travel or expenses for travel taking place entirely 
outside the United States (such as transportation, food, and lodging) of 
more than minimal value if such acceptance is appropriate, consistent 
with the interests of the United States, and is permitted by the Board. 
Requests for Board approval of acceptance of such expenses shall be 
submitted to the Vice Chairman of the Board, or, if the Vice Chairman is 
unavailable, to the Board's Administrative Governor.

[44 FR 64399, Nov. 7, 1979, as amended at 55 FR 3576, Feb. 2, 1990; 55 
FR 11360, Mar. 28, 1990; 58 FR 57730, Oct. 27, 1993; 59 FR 12805, Mar. 
18, 1994]



Sec. 264b.4  Foreign decorations.

    Board Members and employees may accept, retain, and wear a 
decoration tendered in recognition of active field service in time of 
combat operations or awarded for other outstanding or unusually 
meritorious performance by a foreign government, subject to the approval 
of the Board. Without this approval, the decoration is deemed to have 
been accepted on behalf of the United States, shall become the property 
of the United States, and shall be deposited by the Board Member or 
employee, within 60 days of acceptance, with the Secretary of the Board 
for official use or disposal. Requests for Board approval of acceptance 
of such decorations shall be submitted in advance to the Vice Chairman 
of the Board.



Sec. 264b.5  Disposal of foreign gifts and decorations.

    Within 30 days after a tangible gift or decoration is deposited for 
disposal with the Secretary of the Board, the gift or decoration shall 
be returned to the donor, or shall be forwarded to the Administrator of 
General Services for transfer, donation, or other disposal in accordance 
with applicable law, or shall be retained for official use of the Board.



Sec. 264b.6  Official use of foreign gifts and decorations.

    A foreign gift or decoration deposited with the Secretary of the 
Board may, with the approval of the Board, be retained for official 
Board use. The Secretary shall insure that, whenever possible, 
``official board use'' of such a gift will benefit the greatest number 
of Board employees and/or the public. Within 30 days after terminating 
the ``official use'' of a foreign gift, the Board shall report the 
termination of the official use to the Administrator of the General 
Services, in accordance with applicable GSA regulations.



Sec. 264b.7  Reporting requirements.

    (a) When a Board Member or employee deposits a tangible gift or 
decoration of more than minimal value for disposal or for official use, 
or within 30 days after a Board Member or employee accepts travel or 
travel expenses as provided in this section, the Board Member or 
employee shall file a statement with the Secretary of the Board 
containing the information prescribed in paragraphs (b) and (c) that 
follow.
    (b) For each tangible gift or decoration deposited with the 
Secretary of the Board, a Board Member or employee shall file a 
statement which shall include the following information:
    (1) The name and position of the employee;
    (2) A full description of the gift and the circumstances justifying 
acceptance;

[[Page 716]]

    (3) The identity of the foreign government and the name and position 
of the individual who presented the gift;
    (4) The date of acceptance of the gift;
    (5) The estimated value in the United States of the gift at the time 
of acceptance;
    (6) Disposition or current location of the gift; and
    (7) An indication whether the Board Member or employee is interested 
in participating in the sale of the tangible gift or decoration if it is 
sold by the General Services Administration.
    (c) For each gift of travel or travel expenses accepted, a Board 
Member or employee shall file a statement which shall include the 
following information:
    (1) The name and position of the employee;
    (2) A brief description of the travel or travel expenses, including 
the amount, or estimated costs, and the circumstances justifying 
acceptance; and
    (3) The identity of the foreign government and the name and position 
of the individual who provided the travel or travel expenses.
    (d) Board Members and employees need not report the following gifts 
and decorations:
    (1) Gifts of minimal value;
    (2) Decorations retained by the employee with the approval of the 
Board;
    (3) Gifts and decorations offered but refused by the Board Member or 
employee.
    (e) Not later than January 31 of each year, the Secretary of the 
Board shall compile a listing of all statements filed during the 
preceding year by Board Members and employees pursuant to this section 
and shall transmit such listing to the Secretary of State for the 
purpose of publishing a listing of all such statements in the Federal 
Register.



Sec. 264b.8  Implementing procedures.

    The Board shall:
    (a) Report to the Attorney General cases in which there is reason to 
believe that a Board Member or employee has violated this section;
    (b) Establish a procedure in the Office of the Secretary of the 
Board for obtaining an appraisal, when necessary, of the value of gifts; 
and
    (c) Take any other actions necessary to carry out the purpose of 
this subsection, including appropriate disciplinary action for failure 
to comply with provisions of this part.



Sec. 264b.9  Miscellaneous.

    The provisions of this part do not apply to grants and other forms 
of assistance to which section 108A of the Mutual Educational and 
Cultural Exchange Act of 1961 applies.



PART 265--RULES REGARDING DELEGATION OF AUTHORITY--Table of Contents




Sec.
265.1  Authority, purpose, and scope.
265.2  Delegation of functions generally.
265.3  Board review of delegated actions.
265.4  Functions delegated to Board members.
265.5  Functions delegated to Secretary of the Board.
265.6  Functions delegated to General Counsel.
265.7  Functions delegated to Director of Division of Banking 
          Supervision and Regulation.
265.8  Functions delegated to the Staff Director of the Division of 
          International Finance.
265.9  Functions delegated to the Director of Division of Consumer and 
          Community Affairs.
265.10  Functions delegated to Secretary of Federal Open Market 
          Committee.
265.11  Functions delegated to Federal Reserve Banks.

    Authority: 12 U.S.C. 248(i) and (k).

    Source: 56 FR 25619, June 5, 1991, unless otherwise noted.



Sec. 265.1  Authority, purpose, and scope.

    (a) Pursuant to section 11(k) of the Federal Reserve Act (12 U.S.C. 
248(k)), the Board of Governors of the Federal Reserve System (the 
``Board'') may delegate, by published order or rule, any of its 
functions other than those relating to rulemaking or pertaining 
principally to monetary and credit policies to Board members and 
employees, Reserve Banks, or administrative law judges. Pursuant to 
section 11(i) of the Federal Reserve Act (12 U.S.C. 248(i)), the Board 
may make all rules and regulations necessary to enable it to effectively 
perform the duties, functions, or services specified in that Act. 
Pursuant to section 5(b) of the Bank Holding

[[Page 717]]

Company Act (12 U.S.C. 1844(b)), the Board is authorized to issue such 
regulations and orders as may be necessary to enable it to administer 
and carry out the purposes of this Act and prevent evasions thereof. 
Other provisions of Federal law also may authorize specific delegations 
by the Board.
    (b) The Board's Rules Regarding Delegation of Authority (12 CFR part 
265) detail the responsibilities that the Board has delegated. The table 
of contents, titles, and headings that appear in these rules are used 
solely for their descriptive convenience. Section 265.4 addresses the 
specific functions delegated to Board members. The functions that have 
been delegated to Board employees are set forth in Secs. 265.5, 265.6, 
265.7, 265.8, and 265.9. The functions that have been delegated to the 
Secretary of the Federal Open Market Committee are set forth in 
Sec. 265.10. The functions that have been delegated to the Reserve Banks 
are set forth in Sec. 265.11. Provisions for review of any action taken 
pursuant to delegated authority are found in Sec. 265.3. Except as 
otherwise indicated in these rules, the Board will review a delegated 
action only if a Board member, at his or her own initiative, requests a 
review.



Sec. 265.2  Delegation of functions generally.

    (a) The Board has determined to delegate authority to exercise the 
functions described in this part.
    (b) The Chairman of the Board shall assign responsibility for 
performing such delegated functions.



Sec. 265.3  Board review of delegated actions.

    (a) Request by Board member. The Board shall review any action taken 
at a delegated level upon the vote of one member of the Board, either on 
the member's own initiative or on the basis of a petition for review by 
any person claiming to be adversely affected by the delegated action.
    (b) Petition for review. A petition for review of a delegated action 
must be received by the Secretary of the Board not later than the fifth 
day following the date of the delegated action.
    (c) Notice of review. The Secretary shall give notice of review by 
the Board of a delegated action to any person with respect to whom the 
action was taken not later than the tenth day following the date of the 
delegated action. Upon receiving notice, such person may not proceed 
further in reliance upon the delegated action until notified of the 
outcome of the review by the Board.
    (d) By action of a delegee. A delegee may submit any matter to the 
Board for determination if the delegee considers it appropriate because 
of the importance or complexity of the matter.



Sec. 265.4  Functions delegated to Board members.

    (a) Individual members. Any Board member designated by the Chairman 
is authorized:
    (1) Review of denial of access to Board records; FOIA. To review and 
determine an appeal of denial of access to Board records under the 
Freedom of Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 
552a), and the Board's rules regarding such access (12 CFR parts 261 and 
261a, respectively).
    (2) Approval of amendments to notice of charges or cease and desist 
orders. To approve (after receiving recommendations of the Director of 
the Division of Banking Supervision and Regulation and the General 
Counsel) amendments to any notice, temporary order, or proposed order 
previously approved by the Board in a specific formal enforcement matter 
(including a notice of charges or removal notice) or any proposed or 
temporary cease and desist order previously approved by the Board under 
12 U.S.C. 1818 (b) and (c).
    (3) Requests for permission to appeal rulings. (i) To act, when 
requested by the Secretary, upon any request under Sec. 263.10(e) of the 
Board's Rules of Practice for Hearings (12 CFR part 263) for special 
permission to appeal from a ruling of the presiding officer on any 
motion made at a hearing conducted under the rules, and if special 
permission is granted, the merits of the appeal shall be presented to 
the Board for decision.
    (ii) Notwithstanding Sec. 265.3 of this part, the denial of special 
permission to appeal a ruling may be reviewed by the Board only if a 
Board member requests a review within two days of the

[[Page 718]]

denial. No person claiming to be adversely affected by the denial shall 
have any right to petition the Board or any Board member for review or 
reconsideration of the denial.
    (b) Three member Action Committee. Any three Board members 
designated from time to time by the Chairman (the ``Action Committee'') 
are authorized:
    (1) Absence of quorum. To act, upon certification by the Secretary 
of the Board of an absence of a quorum of the Board present in person, 
by unanimous vote on any matter that the Chairman has certified must be 
acted upon promptly in order to avoid delay that would be inconsistent 
with the public interest except for matters:
    (i) Relating to rulemaking;
    (ii) Pertaining principally to monetary and credit policies; and
    (iii) For which a statute expressly requires the affirmative vote of 
more than three Board members.
    (2) [Reserved]

[56 FR 25619, June 5, 1991, as amended at 56 FR 67154, Dec. 30, 1991]



Sec. 265.5  Functions delegated to Secretary of the Board.

    The Secretary of the Board (or the Acting Secretary) is authorized:
    (a) Procedure--(1) Extension of time period for public participation 
in proposed regulations. To extend, when appropriate under the Board's 
Rules of Procedure (12 CFR 262.2 (a) and (b)), the time period for 
public participation with respect to proposed regulations of the Board.
    (2) Extension of time period in notices, orders, rules, or 
regulations. (i) To grant or deny requests to extend any time period in 
any notice, order, rule, or regulation of the Board relating to filing 
information, comments, opposition, briefs, exceptions, or other matters, 
in connection with any application, request or petition for the Board's 
approval, authority, determination, or permission, or any other action 
by the Board.
    (ii) Notwithstanding Sec. 265.3 of this part, no person claiming to 
be adversely affected by any such extension of time by the Secretary 
shall have the right to petition the Board or any Board member for 
review or reconsideration of the extension.
    (3) Conforming citations and references in Board rules and 
regulations. (i) To conform references to administrative positions or 
units in Board rules and regulations with changes in the administrative 
structure of the Board and in the government and agencies of the United 
States.
    (ii) To conform citations and references in Board rules and 
regulations with other regulatory or statutory changes adopted or 
promulgated by the Board or by the government or agencies of the United 
States.
    (4) Technical corrections in Board rules and regulations. To make 
technical corrections, such as spelling, grammar, construction, and 
organization (including removal of obsolete provisions and consolidation 
of related provisions), to the Board's rules, regulations, and orders 
and other records of Board action but only with the concurrence of the 
Board's General Counsel.
    (b) Availability of information--(1) FOIA requests. To make 
available, upon request, information in Board records and consider 
requests for confidential treatment of information in Board records 
under the Freedom of Information Act (5 U.S.C. 552) and under the 
Board's Rules Regarding Availability of Information (12 CFR part 261).
    (2) Annual reports on Privacy Act. To approve annual reports 
required by the Privacy Act (5 U.S.C. 552a(p)) from the Board to the 
Office of Management and Budget for inclusion in the President's annual 
consolidated report to Congress.
    (3) Report on prime rate of commercial banks. To determine and 
report, under 26 U.S.C. (IRC) 6621, to the Secretary of the Treasury the 
average predominant prime rate quoted by commercial banks to large 
businesses.
    (c) Bank holding companies; Change in bank control; Mergers--(1) 
Reports on competitive factors in bank mergers. To furnish reports on 
competitive factors involved in a bank merger to the Comptroller of the 
Currency and the Federal Deposit Insurance Corporation under the 
provisions of the Federal Deposit Insurance Act (12 U.S.C. 1828(c)); The 
Bank Holding Company Act (12 U.S.C. 1842(a), 1843(c)(14)); the Bank

[[Page 719]]

Service Corporation Act (12 U.S.C. 1865(a), (b), 1867(d)); the Change in 
Bank Control Act (12 U.S.C. 1817(j)); and the Federal Reserve Act (12 
U.S.C. 321 et seq., 601-604a, 611 et seq.).
    (2) Reserve Bank director interlocks. To take actions the Reserve 
Bank could take except for the fact that the Reserve Bank may not act 
because a director, senior officer, or principal shareholder of any 
holding company, bank, or company involved in the transaction is a 
director of that Reserve Bank or branch of the Reserve Bank.
    (3) Application approval under section 5(d)(3) of the FDI Act. To 
approve applications pursuant to section 5(d)(3) of the Federal Deposit 
Insurance Act (12 U.S.C. 1815(d)(3)), in those cases in which the 
appropriate Federal Reserve Bank concludes that, because of unusual 
considerations, or for other good cause, it should not take action.
    (d) International banking--(1) Establishment of foreign branch or 
foreign agency or of Edge or Agreement Corporations. To approve, under 
sections 25 and 25A of the Federal Reserve Act (12 U.S.C. 601 and 604) 
and Regulation K (12 CFR part 211), the establishment, directly or 
indirectly, of a foreign branch or agency by a member bank or an Edge or 
Agreement Corporation if all of the following conditions are met:
    (i) The appropriate Reserve Bank and relevant divisions of the 
Board's staff recommend approval;
    (ii) No significant policy issue is raised on which the Board has 
not expressed its view; and
    (iii) The application is not for the applicant's first full-service 
branch in a foreign country.
    (2) Acquisition of foreign company or U.S. company financing 
exports. To grant, under sections 25 and 25A of the Federal Reserve Act 
(12 U.S.C. 601 and 604) and section 4(c)(13) of the Bank Holding Company 
Act (12 U.S.C. 1843(c)(13)) and the Board's Regulations K and Y (12 CFR 
parts 211 and 225), specific consent to the acquisition, either directly 
or indirectly, by a member bank, an Edge or Agreement corporation, or a 
bank holding company of stock of a company chartered under the laws of a 
foreign country or a company chartered under the laws of a state of the 
United States that is organized and operated for the purpose of 
financing exports from the United States, and to approve any such 
acquisition that may exceed the limitations of section 25A of the 
Federal Reserve Act based on the company's capital and surplus, if all 
of the following conditions are met:
    (i) The appropriate Reserve Bank and all relevant divisions of the 
Board's staff recommend approval;
    (ii) No significant policy issue is raised on which the Board has 
not expressed its view;
    (iii) The acquisition does not result, either directly or 
indirectly, in the bank, corporation, or bank holding company acquiring 
effective control of the company, except that this condition need not be 
met if:
    (A) The company is to perform nominee, fiduciary, or other services 
incidental to the activities of a foreign branch or affiliate of the 
bank holding company, or corporation; or
    (B) The stock is being acquired from the parent bank or bank holding 
company, or subsidiary Edge or Agreement corporation, as the case may 
be, and the selling parent or subsidiary holds the stock with the 
consent of the Board pursuant to Regulations K and Y (12 CFR parts 211 
and 225).
    (e) Member banks--(1) Waiver of penalty for early withdrawals of 
time deposits. To permit depository institutions to waive the penalty 
for early withdrawal of time deposits under section 19(j) of the Federal 
Reserve Act (12 U.S.C. 371b) and Sec. 204.2 of Regulation D (12 CFR part 
204) if the following conditions are met:
    (i) The President declares an area of major disaster or emergency 
area pursuant to section 301 of the Disaster Relief Act of 1974 (42 
U.S.C. 5141);
    (ii) The waiver is limited to depositors suffering disaster or 
emergency related losses in the officially designated area; and
    (iii) The appropriate Reserve Bank and all relevant divisions of the 
Board's staff recommend approval.
    (2) [Reserved]

[56 FR 25619, June 5, 1991, as amended at 56 FR 67153, 67154, Dec. 30, 
1991; 58 FR 26509, May 4, 1993]

[[Page 720]]



Sec. 265.6  Functions delegated to General Counsel.

    The Board's general counsel (or the general counsel's delegee) is 
authorized:
    (a) Procedure--(1) Reconsideration of Board action. Pursuant to 
Sec. 262.3(i) of this chapter (Rules of Procedure) to determine whether 
or not to grant a request for reconsideration or whether to deny a 
request for stay of the effective date of any action taken by the Board 
with respect to an action as provided in that part.
    (2) Public meetings. To order, after consulting with the directors 
of other interested divisions of the Board and the appropriate Reserve 
Bank, that a public meeting or other proceeding be held, under 
Sec. 262.25 of the Board's Rules of Procedure (12 CFR part 262), in 
connection with any application or notice filed with the Board, and to 
designate the presiding officer in the proceeding under terms and 
conditions the General Counsel deems appropriate.
    (3) Designation of Board counsel for hearings. To designate Board 
staff attorneys as Board counsel in any proceeding ordered by the Board 
in accordance with Sec. 263.6 of the Board's Rules of Practice for 
Hearings (12 CFR part 263).
    (4) Oaths, depositions, subpoenas. To take, or authorize designated 
persons to take, with the concurrence of the Director of the Division of 
Banking Supervision and Regulation, actions permitted under 12 U.S.C. 
1818(n), 1820(c), and 12 U.S.C. 1844(f), including administering oaths 
and affirmations, taking depositions, and issuing, revoking, quashing, 
or modifying subpoenas duces tecum.
    (5) Operating circulars. To approve provisions of Reserve Bank 
operating circulars related to uniform services.
    (b) Availability of Information--(1) FOIA requests. To make 
available information of the Board of the nature and in the 
circumstances described in the Board's Rules Regarding Availability of 
Information (12 CFR part 261).
    (2) Disclosure to foreign authorities. To make the determinations 
required for disclosure of information to a foreign bank regulatory or 
supervisory authority, and to obtain, to the extent necessary, the 
agreement of such authority to maintain the confidentiality of such 
information to the extent possible under applicable law.
    (3) Assistance to foreign authorities. To approve requests for 
assistance from any foreign bank regulatory or supervisory authority 
that is conducting an investigation regarding violations of any law or 
regulation relating to banking matters or currency transactions 
administered or enforced by such authority, and to make the 
determinations required for any investigation or collection of 
information and evidence pertinent to such request. In deciding whether 
to approve requests for assistance under this paragraph, the General 
Counsel shall consider:
    (i) Whether the requesting authority has agreed to provide 
reciprocal assistance with respect to banking matters within the 
jurisdiction of any appropriate Federal banking agency;
    (ii) Whether compliance with the request would prejudice the public 
interest of the United States; and
    (iii) Whether the request is consistent with the requirement that 
the Board conduct any such investigation in compliance with the laws of 
the United States and the policies and procedures of the Board.
    (c) Bank holding companies; Change in bank control; Mergers--(1) 
Control determinations under section 2(g) of BHC Act. To determine 
whether a company that transfers shares under section 2(g) of the Bank 
Holding Company Act (12 U.S.C. 1841(g)) is incapable of controlling the 
transferee.
    (2) Control determinations under section 4(c)(8) of BHC Act. To 
determine, or issue an order for a hearing to determine, whether a 
company engaged in financial, fiduciary, or insurance activities falls 
within the exemption in section 4(c)(8) of the Bank Holding Company Act 
(12 U.S.C. 1843(c)(8)), permitting retention or acquisition of control 
thereof by a bank holding company.
    (3) Notices under CBC Act. To revoke acceptance of and return as 
incomplete a notice filed under the Change in Bank Control Act (12 
U.S.C. 1817(j)) or to extend the time during which action must be taken 
on a notice where the General Counsel determines, with the

[[Page 721]]

concurrence of the Director of the Division of Banking Supervision and 
Regulation, that the notice is materially incomplete under that Act or 
Regulation Y (12 CFR part 225) or contains material information that is 
substantially inaccurate.
    (4) Tax certifications. To make prior and final certification for 
federal tax purposes (26 U.S.C. (IRC) 1101-1103, 6158) with respect to 
distributions pursuant to the Bank Holding Company Act (12 U.S.C. 1841 
et seq.).
    (d) Management interlocks--(1) General exceptions. To grant 
exceptions from the prohibitions of Regulation L (12 CFR part 212) when 
the primary federal supervisor of the depository institution in need of 
management assistance approves.
    (2) Temporary exceptions. To grant requests, after consultation with 
the Director for the Division of Banking Supervision and Regulation, for 
temporary director interlocks under Regulation L (12 CFR part 212) for 
newly chartered banks, banks in low income areas, minority banks, 
women's banks, organizations experiencing conditions endangering their 
safety or soundness, organizations sponsoring a credit union, and 
organizations that lose thirty percent or more of their directors or 
management officials due to changes in circumstances.
    (e) Consent enforcement orders. With the concurrence of the director 
of the Board's Division of Banking Supervision and Regulation (or the 
Director's delegee):
    (1) To enter into a cease-and-desist order, removal and prohibition 
order, or civil money penalty assessment order with a bank holding 
company or any nonbanking subsidiary thereof, with a state member bank, 
or with any other person or entity subject to the Board's jurisdiction, 
when the order has been consented to by the institution or individual 
subject to the order;
    (2) To stay, modify, terminate, or suspend an order issued pursuant 
to paragraph (e)(1) of this section.
    (f) International banking. (1) With the concurrence of the Board's 
Director of the Division of Banking Supervision and Regulation, to grant 
a request by a foreign bank to establish a branch, agency, commercial 
lending company, or representative office through certain acquisitions, 
mergers, consolidations, or similar transactions, and to file an after-
the-fact application for the Board's approval to establish that office 
pursuant to Sec. 211.24(a)(3) of Regulation K (12 CFR 211.24(a)(3)); and
    (2) To modify the requirement that a foreign bank that has applied 
to establish a branch, agency, commercial lending company, or 
representative office pursuant to Sec.  211.24(a) of Regulation K (12 
CFR 211.24(a)) shall publish notice of the application in a newspaper of 
general circulation in the community in which the applicant proposes to 
engage in business as provided in Sec. 211.24(b)(2)(ii) of Regulation K 
(12 CFR 211.24(b)(2)(ii)).
    (g) Conflicts of interest waivers. To issue individual conflicts of 
interest waivers under 18 U.S.C. 208(b)(1) to employees and officials 
other than Board members.

[56 FR 25619, June 5, 1991, as amended at 56 FR 67154, Dec. 30, 1991; 57 
FR 6789, Feb. 28, 1992; 57 FR 13002, Apr. 15, 1992; 58 FR 6363, Jan. 28, 
1993; 58 FR 26509, May 4, 1993; 58 FR 53394, Oct. 15, 1993; 60 FR 10307, 
Feb. 24, 1995; 61 FR 13395, Mar. 27, 1996]



Sec. 265.7  Functions delegated to Director of Division of Banking Supervision and Regulation.

    The Board's Director of the Division of Banking Supervision and 
Regulation (or the Director's delegee) is authorized:
    (a) Procedure--(1) Cease and desist orders. To refuse, with the 
prior concurrence of the appropriate Reserve Bank and the Board's 
General Counsel, an application to the Board to stay, modify, terminate, 
or set aside any effective cease and desist order previously issued by 
the Board under section 8(b) of the Federal Deposit Insurance Act (12 
U.S.C. 1818(b)), or any written agreement between the Board or the 
Reserve Bank and a bank holding company or any nonbanking subsidiary 
thereof or a state member bank.
    (2) Modification of commitments or conditions. To grant or deny 
requests for modifying, including extending the time for, performing a 
commitment or condition relied on by the Board or its delegee in taking 
any action under the Bank Holding Company Act, the Bank

[[Page 722]]

Merger Act, the Change in Bank Control Act of 1978, the Federal Reserve 
Act, or the International Banking Act. In acting on such requests, the 
Board's Director may take into account changed circumstances and good 
faith efforts to fulfill the commitments or conditions, and shall 
consult with the directors of other interested divisions where 
appropriate. The Board's Director may not take any action that would be 
inconsistent with or result in an evasion of the provisions of the 
Board's original action.
    (3) Notice of insufficient capital. To issue, with the concurrence 
of the Board's General Counsel, a notice that a state member bank or 
bank holding company has insufficient capital and which directs the bank 
or company to file with its regional Reserve Bank a capital improvement 
plan under subpart D of the Board's Rules of Practice for Hearings (12 
CFR part 263).
    (4) Obtaining possession or control of securities; extending time 
period. To approve, under Sec. 403.5(g) of the Treasury Department 
regulations (17 CFR part 403) implementing the Government Securities Act 
of 1986, as amended (Pub. L. 95-571), the application of a member bank, 
a state branch or agency of a foreign bank, a foreign bank, or a 
commercial lending company owned or controlled by a foreign bank, to 
extend for one or more limited periods commensurate with the 
circumstances the 30-day time period specified in 17 CFR 
403.5(c)(1)(iii), provided the Director is satisfied that the applicant 
is acting in good faith and that exceptional circumstances warrant such 
action.
    (b) Availability of Information--(1) FOIA requests. To make 
available information of the Board of the nature and in the 
circumstances described in Sec. 261.11 of the Board's Rules Regarding 
Availability of Information (12 CFR part 261).
    (2) FOIA; Availability of information. To make available, under the 
Board's Rules Regarding Availability of Information (12 CFR part 261), 
reports and other information of the Board acquired pursuant to the 
Board's Regulations G, T, U, and X (12 CFR parts 207, 220, 221, 224) of 
the nature and in circumstances described in Secs. 261.8(a) (2) and (3) 
of these rules.
    (c) Bank holding companies; Change in bank control; Mergers--(1) 
Bank holding company registration forms and annual reports. To 
promulgate registration forms and annual reports and other forms for use 
in connection with the Bank Holding Company Act, after receiving 
clearance from the Office of Management and Budget (where necessary), 
under section 5 of the Bank Holding Company Act (12 U.S.C. 1844) and in 
accordance with 5 U.S.C. 553.
    (2) Emergency action. To take actions the Reserve Bank could take 
under this part at Secs. 265.11(c)(2)(ii) and 265.11(c)(3)(iii) if 
immediate or expeditious action is required to avert failure of a bank 
or savings association or because of an emergency pursuant to sections 
3(a) and 4(c)(8) of the Bank Holding Company Act (12 U.S.C. 1842(a), 
1843(c)(8)) on the Change in Bank Control Act (12 U.S.C. 1817(j)).
    (3) Waiver of notice. To waive, dispense with, modify or excuse the 
failure to comply with the requirement for publication and solicitation 
of public comment regarding a notice filed under the Change in Bank 
Control Act (12 U.S.C. 1817(j)), with the concurrence of the Board's 
General Counsel, provided a written finding is made that such disclosure 
would seriously threaten the safety or soundness of a bank holding 
company or a bank.
    (4) Notices for addition or change of directors or officers. Under 
section 914(a) of the Financial Institutions Reform, Recovery and 
Enforcement Act (12 U.S.C. 1831i) and subpart H of Regulation Y (12 CFR 
part 225), provided that no senior officer or director or proposed 
senior officer or director of the notificant is also a director of the 
Reserve Bank or a branch of the Reserve Bank:
    (i) To determine the informational sufficiency of notices filed 
pursuant to Sec. 225.72 of Regulation Y (12 CFR part 225); and
    (ii) To waive the prior notice requirements of that section.
    (5) ERISA violations. To provide the Department of Labor written 
notification of possible significant violations of the Employee 
Retirement Income Security Act (ERISA) by bank holding companies, in 
accordance with section 3004(b) of ERISA and the Interagency

[[Page 723]]

Agreement adopted to implement its provisions.
    (d) International banking--(1) Foreign bank reports. To require 
submission of a report of condition respecting any foreign bank in which 
a member bank holds stock acquired under Sec. 211.5(b) of Regulation K 
(12 CFR part 211) and section 25 of the Federal Reserve Act (12 U.S.C. 
602).
    (2) Edge corporation reports. To require submission and publication 
of reports by an Edge corporation under section 25A of the Federal 
Reserve Act (12 U.S.C. 625).
    (3) Capital stock of Edge corporation; articles of association; 
additional investments in Agreement corporation. To approve under 
sections 25 and 25A as of the Federal Reserve Act (12 U.S.C. 601 and 
604), increases and decreases in the capital stock of and amendments to 
the articles of association of an Edge corporation and additional 
investments by a member bank in the stock of an Agreement corporation.
    (4) Waiver or suspension of prior notice; specified consent--(i) To 
waive the 45 days' prior notice period for establishing a branch in an 
additional foreign country under Sec. 211.3(a)(3) of Regulation K (12 
CFR part 211).
    (ii) To waive or suspend the 45 days' notice period for an 
investment that qualifies for the prior notice procedures in 
Sec. 211.5(c)(2) of Regulation K (12 CFR part 211) or require that an 
investor file an application for the Board's specific consent.
    (5) Investment by foreign subsidiaries in U.S. affiliates. To 
permit, after consultation with the Board's General Counsel, a foreign 
subsidiary of a bank holding company to invest in shares of a U.S. 
affiliate of the bank holding company where the investment is made as 
part of an internal corporate reorganization or an internal transfer of 
funds, subject to any conditions and terms the Director and General 
Counsel deem appropriate and consistent with the purposes of Regulation 
K (12 CFR part 211).
    (6) Allocated transfer risk reserves. To determine the need for 
establishing and the amount of any allocated transfer risk reserve 
against specific international assets, and notify the banking 
institutions of the determination and the amount of the reserve and 
whether the reserve may be reduced under subpart D of Regulation K (12 
CFR part 211).
    (7) Underwriting and dealing authority outside the United States; 
hedging techniques. To approve, under Sec. 211.5(d)(14) of Regulation K 
(12 CFR part 211):
    (i) Requests for authority to engage in the activities of 
underwriting, distributing, and dealing in shares outside the United 
States, provided that the Director has determined that the internal 
procedures and operations of the organization and the effect of the 
proposed activities on capital adequacy are consistent with approval.
    (ii) Hedging methods authorized under Sec. 211.5(d)(14)(iii)(A) of 
Regulation K (12 CFR part 211).
    (8) Conduct and coordination of examinations. To authorize the 
conduct of examinations of the U.S. offices and affiliates of foreign 
banks as provided in sections 7(c) and 10(c) of the IBA (12 U.S.C. 
3105(c), 3107(c)), and, where appropriate, to coordinate those 
examinations with examinations of the Office of the Comptroller of the 
Currency, the Federal Deposit Insurance Corporation, and the state 
entity that is authorized to supervise or regulate a state branch, state 
agency, commercial lending company, or representative office.
    (e) Member banks--(1) Membership certification to FDIC. Tocertify, 
under section 4(b) of the Federal Deposit Insurance Act (12 U.S.C. 
1814(b)), to the Federal Deposit Insurance Corporation that the factors 
specified in section 6 of the Act (12 U.S.C. 1816) were considered with 
respect to the admission of a state-chartered bank to Federal Reserve 
membership.
    (2) Dollar exchange. To permit any member bank to accept drafts or 
bill of exchange drawn upon it for the purpose of furnishing dollar 
exchange under section 13(12) of the Federal Reserve Act (12 U.S.C. 
373).
    (3) ERISA violations. To provide to the Department of Labor written 
notification of possible significant violations of the Employee 
Retirement Income Security Act (ERISA) by member banks, in accordance 
with section 3004(b) of ERISA and the Interagency Agreement adopted to 
implement its provisions.

[[Page 724]]

    (4) Examiners. To select or approve the appointment of Federal 
Reserve examiners, assistant examiners, and special examiners for the 
purpose of making examinations for or by the direction of the Board 
under 12 U.S.C. 325, 338, 625, 1844(c), and 3105(b)(1).
    (5) Capital stock reduction; branch applications; declaration of 
dividends; investment in bank premises. To exercise the functions 
described in Sec. 265.11(e)(5), (11), and (12) of this part (reductions 
in capital, issuance of subordinated debt, and early retirement of 
subordinated debt) when the conditions specified in those sections 
preclude a Reserve Bank from acting on a member bank's request for 
action or when the Reserve Bank concludes that it should not take 
action, and to exercise the functions in Sec. 265.11(e)(3), (4), and (7) 
of this part (approving branch applications, declaration of dividends, 
and investment in bank premises) in cases in which the Reserve Bank 
concludes that it should not take action.
    (6) Security devices; Regulation P. To exercise the functions 
described in Sec. 265.11(e)(8) of this part in those cases in which the 
appropriate Reserve Bank concludes that it should not take action for 
good cause.
    (f) Securities--(1) Registration statements by member banks. Under 
section 12(g) of the Securities Exchange Act (15 U.S.C. 78l(g)):
    (i) To accelerate the effective date of a registration statement 
filed by a member bank with respect to its securities;
    (ii) To accelerate termination of the registration of a security 
that is no longer held of record by 300 persons; and
    (iii) To extent the time for filing a registration statement by a 
member bank.
    (2) Exemption from registration. To issue notices with respect to 
application by a statement member bank for exemption from registration 
under section 12(h) of the Securities Exchange Act (15 U.S.C. 78l(h)).
    (3) Accelerating registration of security on national securities 
exchange. To accelerate the effective date of an application by a state 
member bank for registration of a security on a national securities 
exchange under section 12(d) of the Securities Exchange Act (15 U.S.C. 
78l(d)).
    (4) Unlisted trading in security of state member bank. To issue 
notices with respect to an application by a national securities exchange 
for unlisted trading privileges in a security of a state member bank 
under section 12(f) of the Securities Exchange Act (15 U.S.C. 78l(f)).
    (5) Transfer agent registration; acceleration; withdrawal or 
cancellation. (i) To accelerate, under section 17A(c)(2) of the 
Securities Exchange Act of 1934, as amended (15 U.S.C. 78q-1), the 
effective date of a registration statement for transfer agent activities 
filed by a member bank or a subsidiary thereof, a bank holding company 
or a subsidiary thereof that is a bank as defined in section 3(a)(6) of 
the Act other than a bank specified in clause (i) or (iii) of section 
3(a)(34)(B) of the Act (15 U.S.C. 78c).
    (ii) To withdraw or cancel, under section 17A(c)(3)(C) of the 
Securities Exchange Act of 1934, as amended (15 U.S.C. 78q-1(c)(3)(C)), 
the transfer agent registration of a member bank or a subsidiary 
thereof, a bank holding company, or a subsidiary thereof that is a bank 
as defined in section 3(a)(6) of that Act other than a bank specified in 
clause (i) or (iii) of section 3(a)(34)(B) of the Act (15 U.S.C. 78c), 
that has filed a written notice of withdrawal with the Board or upon a 
finding that such transfer agent is no longer in existence or has ceased 
to do business as a transfer agent.
    (6) Proxy solicitation; financial statements. (i) To permit the 
mailing of proxy and other soliciting materials by a state member bank 
before the expiration of the time prescribed therein under Sec. 208.16 
of Regulation H (12 CFR part 208).
    (ii) To permit the omission of financial statements from reports by 
a state member bank, or to require other financial statements in 
addition to, or in substitution for, the statements required therein 
under Sec. 208.16 of Regulation H (12 CFR part 208).
    (7) Municipal securities dealers. Under section 23 of the Securities 
Exchange Act of 1934 (15 U.S.C. 78w).

[[Page 725]]

    (i) To grant or deny requests for waiver of examination and waiting 
period requirements for municipal securities principals and 
representatives under Municipal Securities Rulemaking Board Rule G-3;
    (ii) To grant or deny requests for a determination that a natural 
person or municipal securities dealer subject to a statutory 
disqualification is qualified to act as a municipal securities 
representative or dealer under Municipal Securities Rulemaking Board 
Rule G-4;
    (iii) To approve or disapprove clearing arrangements under Municipal 
Securities Rulemaking Board Rule G-8, in connection with the 
administration of these rules for municipal securities dealers for which 
the Board is the appropriate regulatory agency under section 3(a)(34) of 
the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(34)).
    (8) Making reports available to SEC. To make available, upon 
request, to the Securities and Exchange Commission reports of 
examination of transfer agents, clearing agencies, and municipal 
securities dealers for which the Board is the appropriate regulatory 
agency for use by the Commission in exercising its supervisory 
responsibilities under the Act under section 17(c)(3) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78q(c)(3)).
    (9) Issuing examination manuals, forms, and other materials. To 
issue examination or inspection manuals, registration, report, 
agreement, and examination forms, guidelines, instructions, and other 
similar materials for use in administering sections 7, 8, 15B, and 
17A(c) of the Securities Exchange Act of 1934 (15 U.S.C. 78g, 78h, 78o-
4, and 78q-1).
    (10) Lists of OTC and foreign margin stocks. To approve issuance of 
the lists of OTC margin stocks and foreign margin stocks and add, omit, 
or remove any stock in circumstances indicating that such change is 
necessary or appropriate in the public interest under Sec. 207.6(d) of 
Regulation G (12 CFR part 207), Sec. 220.17(f) of Regulation T (12 CFR 
part 220), or Sec. 221.7(d) of Regulation U (12 CFR part 221).

[56 FR 25619, June 5, 1991, as amended at 56 FR 67153, 67154, Dec. 30, 
1991; 57 FR 13002, Apr. 15, 1992; 58 FR 6363, Jan. 28, 1993; 58 FR 
26509, May 4, 1993]



Sec. 265.8  Functions delegated to the Staff Director of the Division of International Finance.

    The Board's Staff Director of the Division of International Finance 
(or the Director's delegee) is authorized:
    (a) Establishment of foreign accounts. To approve the establishment 
of foreign accounts and the terms of any account-related agreements with 
the Federal Reserve Bank of New York under section 14(e) of the Federal 
Reserve Act (12 U.S.C. 358).
    (b) [Reserved]



Sec. 265.9  Functions delegated to the Director of Division of Consumer and Community Affairs.

    The Director of the Board's Division of Consumer and Community 
Affairs (or the Director's delegee) is authorized:
    (a) Issuing examination manuals, forms, and other materials. To 
issue, pursuant to section 11(a) of the Federal Reserve Act (12 U.S.C. 
248(a)); sections 108(b), 621(c), 704(b), 814(c), and 917(b) of the 
Consumer Credit Protection Act (15 U.S.C. 1607(b), 1681s(c), 1691c(b), 
and 1693o(b)); section 305(c) of the Home Mortgage Disclosure Act (12 
U.S.C. 2804(c)); section 18(f)(3) of the Federal Trade Commission Act 
(15 U.S.C. 57a(f)(3); section 808(c) of the Civil Rights Act of 1968 (42 
U.S.C. 3608(c)); and section 5 of the Bank Holding Company Act of 1956 
(12 U.S.C. 1844(c)), examination or inspection manuals; report, 
agreement, and examination forms; guidelines, instructions, and other 
similar materials, in consultation with the Legal Division where 
appropriate, for use in connection with:
    (1) Sections 1-921 of the Consumer Credit Protection Act, excluding 
sections 201-500 (15 U.S.C. 1601-1693r);
    (2) Sections 301-312 of the Home Mortgage Disclosure Act (12 U.S.C. 
2801-2811);
    (3) Section 18(f)(1)-(3) of the Federal Trade Commission Act (15 
U.S.C. 57a(f)(1)-(3));
    (4) Section 805 of the Civil Rights Act of 1968 (42 U.S.C. 3605) and 
rules and regulations issued thereunder;
    (5) Section 1364 of the National Flood Insurance Act of 1968 (42 
U.S.C. 4101(a)), and sections 105(b) and 202(b) of the

[[Page 726]]

Flood Disaster Protection Act of 1973 (42 U.S.C. 4012a(b), 4106(b));
    (6) Section 19(j) of the Federal Reserve Act (12 U.S.C. 371b); and
    (7) Sections 801-806 of the Community Reinvestment Act (12 U.S.C. 
2901-2905).
    (b) Consumer Advisory Council. Pursuant to section 703(b) of the 
Consumer Credit Protection Act (15 U.S.C. 1691b(b)), to call meetings of 
and consult with the Consumer Advisory Council established under that 
section, approve the agenda for such meetings, and accept any 
resignations from Consumer Advisory Council members.
    (c) Determining inconsistencies between state and federal laws. To 
determine whether a state law is inconsistent with the following federal 
acts and regulations:
    (1) Sections 111, 171(a), and 186(a) of the Truth in Lending Act (15 
U.S.C. 1610(a), 1666j(a), 1667e(a)); Sec. 226.28 of Regulation Z (12 CFR 
part 226);
    (2) Section 919 of the Electronic Fund Transfer Act (15 U.S.C. 
1693q), Sec. 205.12 of Regulation E (12 CFR part 205);
    (3) Section 705(f) of the Equal Credit Opportunity Act (15 U.S.C. 
1691d(f) and Sec. 202.11 of Regulation B (12 CFR part 202);
    (4) Section 306(a) of the Home Mortgage Disclosure Act (12 U.S.C. 
2805(a)) and Regulation C (12 CFR part 203);
    (5) Section 273 of the Truth in Savings Act (12 U.S.C. 4312) and 
Regulation DD (12 CFR part 230).

[56 FR 25619, June 5, 1991, as amended at 56 FR 67154, Dec. 30, 1991; 58 
FR 65540, Dec. 15, 1993]



Sec. 265.10  Functions delegated to Secretary of Federal Open Market Committee.

    The Secretary of the Federal Open Market Committee (or the Deputy 
Secretary in the Secretary's absence) is authorized:
    (a) Records of policy actions. To approve for inclusion in the 
Board's Annual Report to Congress, records of policy actions of the 
Federal Open Market Committee.
    (b) [Reserved]



Sec. 265.11  Functions delegated to Federal Reserve Banks.

    Each Federal Reserve Bank is authorized as to a member bank or other 
indicated organization for which the Reserve Bank is reponsible for 
receiving applications or registration statements or to take other 
actions as indicated:
    (a) Procedure--(1) Member bank affiliate's reports. To extend the 
time for good cause shown, within which an affiliate of a state member 
bank must file reports under section 9(17) of the Federal Reserve Act 
(12 U.S.C. 334).
    (2) Edge corporation's divestiture of stock. To extend the time in 
which an Edge Act corporation must divest itself of stock acquired in 
satisfaction of a debt previously contracted under section 25A(9) of the 
Federal Reserve Act (12 U.S.C. 615).
    (3) Edge corporation's corporate existence. To extend the period of 
corporate existence of an Edge corporation under section 25A(22) of the 
Federal Reserve Act (12 U.S.C. 628).
    (4) Bank holding company registration statement. To extend the time 
within which a bank holding company must file a registration statement 
under section 5(a) of the Bank Holding Company Act (12 U.S.C. 1844(a)).
    (5) Bank holding company divestiture of nonbanking interests. To 
extend the time within which a bank holding company must divest itself 
of interests in nonbanking organizations under section 4(a) of the Bank 
Holding Company Act (12 U.S.C. 1843(a)).
    (6) Bank holding company divestiture of dpc interests. To extend the 
time within which a bank holding company or any of its subsidiaries must 
divest itself of interests acquired in satisfaction of a debt previously 
contracted:
    (i) Under section 4(c)(2) of the Bank Holding Company Act (12 U.S.C. 
1843(c)(2)) or Sec. 225.22(c)(1) of Regulation Y (12 CFR part 225); or
    (ii) Under sections 2(a)(5)(D) and 3(a) of the Bank Holding Company 
Act (12 U.S.C. 1841(a)(5)(D) and 1842(a)).
    (7) Member bank's surrender of Reserve Bank stock upon withdrawal 
from membership. To extend the time within which a member bank that has 
given notice of intention to withdraw from membership must surrender its 
Federal Reserve Bank stock and its certificate of membership under 
Regulation H (12 CFR 208.11(c)).

[[Page 727]]

    (8) Members bank's reports of condition. To extend the time for 
publication of reports of condition under Regulation H (12 CFR part 208) 
for good cause shown.
    (9) Bank holding company's annual reports. To grant to a bank 
holding company a 90-day extension of time in which to file an annual 
report, and for good cause shown grant an additional extension of time 
not to exceed 90 days under section 5(c) of the Bank Holding Company Act 
(12 U.S.C. 1844(c)).
    (10) Regulation K--Divestiture of foreign portfolio investment, 
joint venture, or subsidiary acquired through debt previously 
contracted. To extend the time within which an investor must divest 
itself of interests in a foreign portfolio investment, joint venture, or 
subsidiary acquired in satisfaction of a debt previously contracted 
under Regulation K (12 CFR 211.5(e)).
    (11) Bank holding company's acquisition of shares, opening new bank, 
consummating merger. To extend the time within which a bank holding 
company may acquire shares, open a new bank to be acquired, or 
consummante a merger in connection with an application approved by the 
Board, if no material change relevant to the proposal has occurred since 
its approval.
    (12) Member bank's establishing domestic or foreign branch; Edge or 
agreement corporation's establishing branch or agency. To extend the 
times within which:
    (i) A member bank may establish a domestic branch;
    (ii) A member bank may establish a foreign branch; or
    (iii) An Edge or agreement corporation may establish a branch or 
agency, if no material change has occurred in the bank's (or 
corporation's) general condition since the application was approved.
    (13) Purchase of stock by Edge or Agreement Corporation, member 
bank, or bank holding company. To extend the time within which an Edge 
or Agreement corporation, member bank, or a bank holding company may 
accomplish a purchase of stock if no material change has occurred in the 
general condition of the corporation, the member bank, or bank holding 
company since such authorization under sections 25 or 25A of the Federal 
Reserve Act or section 4(c)(13) of the Bank Holding Company Act (12 
U.S.C. 615, 628, 1843).)
    (14) Federal Reserve Membership. To extend the time within which 
Federal Reserve membership must be accomplished, if no material change 
has occurred in the bank's general condition since the application was 
approved.
    (15) Enforcement actions; written agreements; cease and desist 
orders. With the prior approval of both the Board's Director of the 
Division of Banking Supervision and Regulation and the Board's General 
Counsel;
    (i) To enter into a written agreement with a bank holding company or 
any nonbanking subsidiary thereof, with a state member bank, or with any 
other person or entity subject to the Board's supervisory jurisdiction 
under 12 U.S.C. 1818(b) concerning the prevention or correction of an 
unsafe or unsound practice in conducting the business of the bank 
holding company, nonbanking subsidiary, or state member bank or other 
entity, or concerning the correction or prevention of any violation of 
law, rule, or regulation, or any condition imposed in writing by the 
Board in connection with the granting of any application or other 
request by the bank or company or any other appropriate matter;
    (ii) To stay, modify, terminate, or suspend an agreement entered 
into pursuant to this paragraph;
    (iii) To stay, modify, terminate, or suspend an outstanding cease 
and desist order that has become final pursuant to 12 U.S.C. 1818 (b) 
and (k). Any agreement authorized under this paragraph may, by its 
terms, be enforceable to the same extent and in the same manner as an 
effective and outstanding cease and desist order that has become final 
pursuant to 12 U.S.C. 1818 (b) and (k).
    (16) Appointment of assistant Federal Reserve agents. To approve the 
appointment of assistant Federal Reserve agents (including 
representatives or alternate representatives of such agents) under 
section 4, paragraph 21 of the Federal Reserve Act (12 U.S.C. 306).
    (b) Availability of Information--(1) Availability of Information; 
Board records. To make available information of the Board of the nature 
and in the circumstances described in the Board's

[[Page 728]]

Rules Regarding Availability of Information (12 CFR 261.11).
    (2) [Reserved]
    (c) Bank holding companies; Change in bank control; Mergers--(1) 
Require reports under oath. To require reports under oath to determine 
whether a company is complying with section 5(c) of the Bank Holding 
Company Act (12 U.S.C. 1844(c)).
    (2) Acquisition of going concern--authorization of consummation; 
early consummation. To notify a bank holding company that, because the 
circumstances surrounding the application to acquire a going concern 
indicate that additional information is required or that the acquisition 
should be considered by the Board, the acquisition should not be 
consummated until specifically authorized by the Reserve Bank or by the 
Board.
    (ii) To permit a bank holding company to make a proposed acquisition 
of a going concern before the expiration of the 30-day period referred 
to in Regulation Y (12 CFR 225.23(a)(2)) because exigent circumstances 
justify consummation of the acquisition at an earlier time.
    (3) Petition for review of decision that adverse comments are not 
substantive; permit proposed de novo activities; authorization of 
consummation; early consummation. Under Sec. 225.4(b)(1) of Regulation Y 
(12 CFR part 225) and subject to Sec. 265.3 of this part, if a person 
submitting adverse comments that the Reserve Bank had decided are not 
substantive files a petition for review by the Board of that decision:
    (i) To permit a bank holding company to engage de novo in activities 
specified in Sec. 225.25 of Regulation Y (12 CFR part 225), or retain 
shares in a company established de novo and engaging in such activities, 
if the Reserve Bank's evaluation of the considerations specified in 
section 4(c)(8) of the Bank Holding Company Act leads it to conclude 
that the proposal can reasonably be expected to produce benefits to the 
public.
    (ii) To notify a bank holding company that the proposal should not 
be consummated until specifically authorized by the Reserve Bank or by 
the Board or that the proposal should be processed in accordance with 
the procedures in Sec. 225.23(a)(2) of Regulation Y (12 CFR part 225).
    (iii) To permit a bank holding company to consummate the proposal 
before the expiration of the 45-day period referred to in 
Sec. 225.23(a)(1) of Regulation Y because exigent circumstances justify 
consummation at an earlier time under Sec. 225.4(b)(1) of Regulation Y 
(12 CFR part 225).
    (4) Permit or stay of modification or location of activities. To 
permit or stay a proposed de novo modification or relocation of 
activities engaged in by a bank holding company on the same basis as de 
novo proposals under Sec. 265.11(d)(3) of this part.
    (5) Notices under change in Bank Control Act. With respect to the 
bank holding company or a state member bank:
    (i) To determine the informational sufficiency of notices and 
reports filed under the Change in Bank Control Act;
    (ii) To extend periods for consideration of notices;
    (iii) To determine whether a person who is or will be subject to a 
presumption described in Sec. 225.41(b) of Regulation Y (12 CFR part 
225) should file a notice regarding a proposed transaction; and
    (iv) To issue a notice of intention not to disapprove a proposed 
change in control if all the following conditions are met:
    (A) No member of the Board has indicated an objection prior to the 
Reserve Bank's action;
    (B) No senior officer or director of an involved party is also a 
director of a Federal Reserve Bank or branch;
    (C) All relevant departments of the Reserve Bank concur;
    (D) If the proposal involves shares of a state member bank or a bank 
holding company controlling a state member bank, the appropriate bank 
supervisory authorities have indicated that they have no objection to 
the proposal, or no objection has been received from them within the 
time allowed by the act; and
    (E) No significant policy issue under the change in Bank Control 
Act, 12 U.S.C. 1817(j) or Sec. 225.41 of Regulation Y (12 CFR part 225) 
is raised by the proposal as to which the Board has not expressed its 
view.

[[Page 729]]

    (6) Failure to comply with publication requirement under change in 
Bank Control Act. To waive, dispense with, modify, or excuse the failure 
to comply with the requirement for publication and solicitation of 
public comment regarding a notice filed under the Change in Bank Control 
Act, with the concurrence of the Board's Director of the Division of 
Banking Supervision and Regulation and the Board's General Counsel, 
provided that a written finding is made that such disclosure or 
solicitation would seriously threaten the safety or soundness of a bank 
holding company or bank under the Change in Bank Control Act (12 U.S.C. 
1817(j)(2)).
    (7) Grandfathered nonbanking activities. To determine under section 
4(a)(2) of the Bank Holding Company Act (12 U.S.C. 1843(a)(2)) that 
termination of grandfathered nonbanking activities of a particular bank 
holding company is not warranted, provided the Reserve Bank is satisfied 
all of the following conditions are met:
    (i) The company or its successor is ``a company covered in 1970'';
    (ii) The nonbanking activities for which indefinite grandfather 
privileges are being sought do not present any significant unsettled 
policy issues; and
    (iii) The bank holding company was lawfully engaged in such 
activities as of June 30, 1968 and has been engaged in such activities 
continuously thereafter.
    (8) Opening of additional nonbanking offices. To approve 
applications by a bank holding company under sections 4(c)(8) and 5(b) 
of the Bank Holding Company Act (12 U.S.C. 1843(c)(8), 1844(b)) and 
Sec. 225.23(b) of Regulation Y (12 CFR part 225) to open additional 
offices to engage in nonbanking activities for which the bank holding 
company previously received approval pursuant to Board order, unless one 
of the conditions specified in Sec. 265.11(f) (1), (2), (3), or (4), of 
this part is present.
    (9) Notices for addition or change of directors or officers. Under 
section 914(a) of the Financial Institutions Reform, Recovery and 
Enforcement Act (12 U.S.C. 1831i) and subpart H of Regulation Y (12 CFR 
part 225), provided that no senior officer or director or proposed 
senior officer or director of the notificant is also a director of the 
Reserve Bank or a branch of the Reserve Bank:
    (i) To determine the informational sufficiency of notices filed 
pursuant to Sec. 225.72 of Regulation Y; and
    (ii) To waive the prior notice requirements of that section.
    (10) Acquisition approvals under section 5(d)(3) of the FDI Act. To 
approve, under section 5(d)(3)(E) of the Federal Deposit Insurance Act, 
requests by a bank holding company to engage in any transaction 
described in section 5(d)(3)(A) of that Act.
    (11) Applications requiring Board approval; competitive factors 
reports for bank mergers. To approve applications requiring prior 
approval of the Board and furnish to the Comptroller of the Currency and 
the Federal Deposit Insurance Corporation reports on competitive factors 
involved in a bank merger required to be approved by one of those 
agencies, unless one or more of the following conditions is present.
    (i) A member of the Board has indicated an objection prior to the 
Reserve Bank's action; or
    (ii) The Board has indicated that such delegated authority shall not 
be exercised by the Reserve Bank in whole or in part; or
    (iii) A written substantive objection to the application has been 
properly made; or
    (iv) The application raises a significant policy issue or legal 
question on which the Board has not established its position; or
    (v) With respect to bank holding company formations, bank 
acquisitions or mergers, the proposed transaction involves two or more 
banking organizations that, upon consummation of the proposal, would 
control over 35 percent of total deposits (including 50 percent of 
thrift deposits) in banking offices in the relevant geographic market, 
or would result in an increase of at least 200 points in the Herfindahl-
Hirschman Index (HHI) in a highly concentrated market (a market with a 
post-merger HHI of at least 1800); or
    (vi) With respect to nonbank acquisitions, the nonbanking activities 
involved do not clearly fall within activities that the Board has 
designated as permissible for bank holding companies under Sec.  
225.25(b) of Regulation Y.

[[Page 730]]

    (d) International banking--(1) Application to establish Edge 
Corporation. To approve the application by a U.S. banking organization 
to establish an Edge corporation under section 25 of the Federal Reserve 
Act (12 U.S.C. 611) and the Board's Regulation K (12 CFR part 211) if 
all of the following criteria are met:
    (i) The U.S. banking organization meets the capital adequacy 
guidelines and is otherwise in satisfactory condition;
    (ii) The proposed Edge corporation will be a wholly-owned subsidiary 
of a single banking organization; and
    (iii) No other significant policy issue is raised on which the Board 
has not previously expressed its view.
    (2) Issuance of permit to Edge corporation to commence business. To 
issue to an Edge corporation under section 25A of the Federal Reserve 
Act (12 U.S.C. 612) and Regulation K, Sec. 211.4(a) (12 CFR part 211) a 
final permit to commence business and to approve amendments to the 
articles of association of any Edge corporation to reflect the 
following:
    (i) Any increase in capital stock where all additional shares are to 
be acquired by existing shareholders;
    (ii) Any change in the location of the home office in the city where 
the Edge corporation is presently located;
    (iii) Any change in the number of members of the board of directors;
    (iv) Any change in the name; and
    (v) Deletion of the requirements that all directors and shareholders 
must be U.S. citizens.
    (3) Edge corporation establishing branch abroad. To approve, under 
Sec. 211.3(a) Regulation K (12 CFR part 211), an Edge corporation 
application to establish a branch abroad, provided that no senior 
officer or director of the involved parties is also a director of a 
Reserve Bank or branch and that no significant policy issue is raised by 
the proposal as to which the Board has not expressed its view.
    (4) Member bank establishing foreign branch. To approve under 
Sec. 211.3(a) of Regulation K (12 CFR part 211) a member bank's 
establishing, directly or indirectly, a foreign branch where the 
application is not one for a full-service branch in a foreign country, 
provided that no senior officer or director of the involved parties is 
also a director of a Reserve Bank or branch and that no significant 
policy issue is raised by the proposal as to which the Board has not 
expressed its view.
    (5) Agreement with foreign bank concerning deposits of out-of-home-
state branch. To enter into an agreement or undertaking with a foreign 
bank that it shall receive only such deposits at its out-of-home-state 
branch as would be permissible for an Edge corporation under section 5 
of the International Banking Act (12 U.S.C. 3103).
    (6) Waiver of 30-day prior notification period. To waive the 30-day 
prior notification period with respect to a foreign bank's change of 
home state under Sec. 211.22(c)(1) of Regulation K (12 CFR part 211).
    (7) Granting specific consent. To grant prior specific consent to an 
investor for an investment in its first subsidiary or its first joint 
venture, where such investment does not exceed the general consent 
limitations under 211.5(c) of Regulation K (12 CFR part 211).
    (8) Requiring application for specific consent. To suspend the 
notification period or require that an investor file an application for 
the Board's specific consent under Sec. 211.5(c)(2) of Regulation K (12 
CFR part 211).
    (9) Investment in export trading company. To issue a notice of 
intention not to disapprove a proposed investment in an export trading 
company if all the following criteria are met:
    (i) The proposed export trading company will be a wholly-owned 
subsidiary of a single investor, or ownership will be shared with an 
individual or individuals involved in the operation of the export 
trading company;
    (ii) A bank holding company investor and its lead bank meet the 
minimum capital adequacy guidelines of the Board, the Comptroller of the 
Currency, or the Federal Deposit Insurance Corporation or have enacted 
capital enhancement plans that have been determined by the appropriate 
supervisory authority to be acceptable.
    (iii) The proposed activities of the export trading company do not 
include product research or design, product modification, or activities 
not specifically covered by the list of services

[[Page 731]]

contained in 4(c)(14)(F)(ii) of the Bank Holding Company Act (12 U.S.C. 
1843(c)(14)(F)(ii));
    (iv) No other significant policy issue is raised on which the Board 
has not previously expressed its view under section 4(c)(14) of the Bank 
Holding Company Act (12 U.S.C. 1843(c)(14) and Regulation K (12 CFR 
211.31-211.34).
    (10) Futures commission merchant activities. To approve, under 
Sec. 211.5(d)(17) of Regulation K (12 CFR part 211), applications to 
engage in futures commission merchant activities on an exchange that 
requires members to guarantee or otherwise contract to cover losses 
suffered by the other members, provided that the Board has previously 
approved the exchange and the application is on the same terms and 
conditions on which the Board based its approval of the exchange.
    (11) Establishment of additional office by foreign bank--(i) 
Additional branch, agency, or commercial lending company. To approve an 
application by a foreign bank to establish an additional branch, agency, 
or commercial lending company in the United States pursuant to Sec.  
211.24 of Regulation K (12 CFR 211.24), provided that:
    (A) The foreign bank previously received approval from the Board to 
establish a branch, agency, or commercial lending company in the United 
States pursuant to Sec. 211.24 of Regulation K (12 CFR 211.24); and
    (B) The application raises no significant policy or supervisory 
issues.
    (ii) Representative office. To approve an application by a foreign 
bank to establish a representative office in the United States pursuant 
to Sec.  211.24 of Regulation K (12 CFR 211.24), provided that:
    (A) The foreign bank previously received approval from the Board to 
establish a branch, agency, commercial lending company, or 
representative office in the United States pursuant to 211.24 of 
Regulation K (12 CFR 211.24); and
    (B) The application raises no significant policy or supervisory 
issues.
    (e) Member banks--(1) Approval of membership applications. To 
approve applications for membership in the Federal Reserve System under 
section 9 of the Federal Reserve Act (12 U.S.C. 321 et seq.) and 
Regulation H (12 CFR part 208) if the Reserve Bank is satisfied with 
respect to each of the following criteria:
    (i) The financial history and condition of the applying bank and the 
general character of its management;
    (ii) The adequacy of its capital structure in relation to the 
character and condition of its assets and to its existing and 
prospective deposit liabilities and other corporate responsibilities and 
its future earnings prospects;
    (iii) The convenience and needs of the community to be served by the 
bank; and
    (iv) Whether its corporate powers are consistent with the purposes 
of the Federal Reserve Act and the Federal Deposit Insurance Act.
    (2) Waiver of notice of intention to withdraw from membership. To 
approve or deny applications by state banks for waiver of the required 
six months' notice of intention to withdraw from Federal Reserve 
membership under section 9(10) of the Federal Reserve Act (12 U.S.C. 
328).
    (3) Approval of branch applications. To approve a state member 
bank's establishment of a domestic branch under section 9 of the Federal 
Reserve Act (12 U.S.C. 321 et seq.) and the Regulation H (12 CFR part 
208) if the Reserve Bank is satisfied that approval is warranted after 
considering:
    (i) The bank's capitalization in relation to the character and 
condition of its assets and to its deposit liabilities and other 
corporate responsibilities, including the volume of its risk assets and 
of its marginal and inferior quality assets, all considered in relation 
to the strength of its management;
    (ii) The ability of the bank's management to cope successfully with 
existing or foreseeable problems, and to staff the proposed branch 
without any significant deterioration in the overall management 
situation;
    (iii) The convenience and needs of the community;
    (iv) The competitive situation (either actual or potential);
    (v) The prospects for profitable operations of the proposed branch 
within a reasonable time, and the ability of the bank to sustain the 
operational losses

[[Page 732]]

of the proposed branch until it becomes profitable; and
    (vi) The reasonableness of the bank's investment in bank premises 
after the expenditure for the proposed branch.
    (4) Declaration of dividends in excess of net profits. To permit a 
state member bank under section 9(6) of the Federal Reserve Act (12 
U.S.C. 324 and 60) to declare dividends in excess of net profits for the 
calendar year combined with the retained net profits of the preceding 
two years, less any required transfers to surplus or a fund for the 
retirement of any preferred stock, if the Reserve Bank is satisfied that 
approval is warranted after giving consideration to:
    (i) The banks capitalization in relation to the character and 
condition of its assets and to its deposit liabilities and other 
corporate responsibilities, including the volume of its risk assets and 
of its marginal and inferior quality assets, all considered in relation 
to the strength of its management; and
    (ii) The bank's capitalization after payment of the proposed 
dividends.
    (5) Reduction of capital stock. To permit a state member bank under 
section 9(11) of the Federal Reserve Act (12 U.S.C. 329) to reduce its 
capital stock if its capitalization thereafter will be:
    (i) In conformity with the requirements of federal law; and
    (ii) Adequate in relation to the character and condition of its 
assets and to its deposit liabilities and other corporate 
responsibilities, including the volume of its risk assets and of its 
marginal and inferior quality assets, all considered in relation to the 
strength of its management.
    (6) Acceptance of drafts and bills of exchange. To permit a member 
bank or a federal or state branch or agency of a foreign bank that is 
subject to reserve requirements under section 7 of the International 
Banking Act of 1978 (12 U.S.C. 3105) to accept drafts or bills of 
exchange under section 13(7) of the Federal Reserve Act (12 U.S.C. 372) 
in an aggregate amount at any one time up to 200 percent of its paid-up 
and unimpaired capital stock and surplus, if the Reserve Bank is 
satisfied that such permission is warranted after giving consideration 
to the institution's capitalization in relation to the character and 
condition of its assets and to its deposit liabilities and other 
corporate responsibilities, including the volume of its risk assets and 
of its marginal and inferior-quality assets, all considered in relation 
to the strength of its management.
    (7) Investment in bank premises in excess of capitol stock. To 
permit a state member bank to invest in bank premises under section 24A 
of the Federal Reserve Act (12 U.S.C. 371a) in an amount in excess of 
its capital stock, if the Reserve Bank is satisfied that approval is 
warranted after giving consideration to the bank's capitalization in 
relation to the character and condition of its assets and to its deposit 
liabilities and other corporate responsibilities, including the volume 
of its risk assets and of its marginal and inferior quality assets, all 
considered in relation to the strength of its management.
    (8) Security devices. To determine whether security devices and 
procedures of state member banks are deficient in meeting the 
requirements of Regulation P (12 CFR part 216) and whether such 
requirements should be varied in the circumstances of a particular 
banking office, and whether to require corrective action.
    (9) Classifying member banks for election of directors. To classify 
member banks for the purposes of electing Federal Reserve Bank class A 
and class B directors under section 4(16) of the Federal Reserve Act (12 
U.S.C. 304), giving consideration to:
    (i) The statutory requirement that each of the three groups shall 
consist as nearly as may be of banks of similar capitalization; and
    (ii) The desirability that every member bank have the opportunity to 
vote for a class A or a class B director at least once every three 
years.
    (10) Waiver of penalty for deficient reserves. To waive the penalty 
for deficient reserves by a member bank if, after a review of all the 
circumstances relating to the deficiency, the Reserve Bank concludes 
that waiver is warranted, except that in no case may a penalty be waived 
if the deficiency in reserves arises out of the bank's gross negligence 
or conduct inconsistent

[[Page 733]]

with the principles and purposes of reserve requirements.
    (11) Retirement of subordinated debt. To approve the retirement 
prior to maturity of capital notes described in Sec. 204.2(a)(1)(vii)(C) 
of Regulation D (12 CFR part 204) and issued by a state member bank, 
provided the Reserve Bank is satisfied that the capital position of the 
bank will be adequate after the proposed redemption.
    (12) Public welfare investments. To permit a state member bank to 
make a public welfare investment that meets the conditions set forth in 
Sec. 208.21(b) (1)-(8) of Regulation H (12 CFR 208), except that:
    (i) The state member bank received an overall rating of ``3'' as of 
its most recent consumer compliance examination;
    (ii) The investment exceeds 2 percent, but does not exceed 5 
percent, of the state member bank's capital stock and surplus as defined 
under 12 CFR 250.162; or
    (iii) The aggregate of all such investments of the state member bank 
exceeds 5 percent, but does not exceed 10 percent, of its capital stock 
and surplus as defined under 12 CFR 250.162.
    (f) Securities--(1) Application for termination of registration. To 
approve applications by a registered lender for termination of the 
registration under Sec. 207.3(a)(2) of Regulation G (12 CFR part 207).
    (2) Agreements from nonmember banks; extensions of credit. To accept 
agreements concerning extensions of credit to finance securities 
transactions on behalf of the Board from nonmember banks in the form 
prescribed by the Board under section 8(a) of the Securities Exchange 
Act of 1934 (15 U.S.C. 78h(a)).
    (g) Management interlocks--(1) Change in circumstances requiring 
termination of management interlocks; Regulation L. To grant time for 
compliance with Sec. 121.6 of Regulation L (12 CFR part 212) of up to an 
aggregate of 15 months from the date on which the change in 
circumstances as specified in that section occurs when the additional 
time appears to be appropriate to avoid undue disruption to the 
depository organizations involved in the management interlocks.
    (2) Depository Institutions Management Interlocks Act. After 
consultation with the General Counsel of the Board, to decide not to 
disapprove notices to establish director interlocks with diversified 
savings and loan holding companies. (12 U.S.C. 3204(8)).

[56 FR 25619, June 5, 1991, as amended at 56 FR 67154, Dec. 30, 1991; 57 
FR 11907, Apr. 8, 1992; 57 FR 40600, Sept. 4, 1992; 58 FR 6363, Jan. 28, 
1993; 59 FR 22968, May 4, 1994; 60 FR 22257, May 5, 1995]



PART 266--LIMITATIONS ON ACTIVITIES OF FORMER MEMBERS AND EMPLOYEES OF THE BOARD--Table of Contents




Sec.
266.1  Basis and scope.
266.2  Definitions.
266.3  Limitations.
266.4  Suspension of appearance privilege.
266.5  Criminal penalties.

    Authority: Sec. 11(i), Federal Reserve Act (12 U.S.C. 248(i)); 5 
U.S.C. 552.

    Source: 38 FR 31672, Nov. 16, 1973, unless otherwise noted.



Sec. 266.1   Basis and scope.

    This part, issued under authority of section 11(i) of the Federal 
Reserve Act (12 U.S.C. 248(i)), and pursuant to section 552 of title 5 
of the United States Code, which requires that every agency shall 
publish in the Federal Register its rules of procedure, relates to 
limitations on former members and employees of the Board with respect to 
participation in matters connected with their former duties and official 
responsibilities while serving with the Board.1
---------------------------------------------------------------------------

    1 While the Board has not adopted rules with regard to the 
disclosure of unpublished information by former Board members and 
employees, it advises such persons not to disclose unpublished 
information of the Board obtained in the course of their work. Questions 
in this regard may be addressed to the General Counsel or the Secretary 
of the Board.
---------------------------------------------------------------------------



Sec. 266.2   Definitions.

    (a) Employee means a regular officer or employee of the Board; it 
does not include a consultant to the Board.2
---------------------------------------------------------------------------

    2 While former consultants to the Board are not covered by these 
Rules, they appear to fall within the coverage of section 207 of the 
United States Criminal Code (18 U.S.C. 207) that provides criminal 
penalties for engaging in activities similar, although not identical, to 
those described in paragraphs (a) and (b) of Sec. 266.3.

---------------------------------------------------------------------------

[[Page 734]]

    (b) Official responsibility, with respect to a matter, means 
administrative, supervisory, or decisional authority, whether 
intermediate or final, exercisable alone or with others, personally or 
through subordinates, to approve, disapprove, decide, or recommend Board 
action or to express staff opinions in dealings with the public.
    (c) Appear personally includes personal appearance or attendance 
before, or personal communication, either written or oral, with the 
Board or a Federal Reserve Bank of any member or employee thereof, or 
personal participation in the formulation or preparation of any material 
presented or communicated to, or filed with, the Board, in connection 
with any application or interpretation arising under the statutes or 
regulations administered by the Board or the Federal Reserve Banks, 
except that requests for general information or explanations of Board 
policy or interpretation shall not be construed to be a personal 
appearance.



Sec. 266.3   Limitations.

    (a) Matters on which Board member or employee worked. No former 
member or employee of the Board shall appear personally before the Board 
or a Federal Reserve Bank on behalf of anyone other than the United 
States, an agency thereof, or a Federal Reserve Bank, in connection with 
any judicial or other proceedings, application, request for ruling or 
determination, or other particular matter involving a specific party or 
parties in which the United States, an agency thereof, or a Federal 
Reserve Bank is also a party or has a direct and substantial interest 
and in which he participated personally and substantially as a member or 
employee of the Board through approval, disapproval, decision, 
recommendation, advice, investigation or otherwise.
    (b) Matters within Board member or employee's official 
responsibility. No former member or employee of the Board shall appear 
personally before the Board or a Federal Reserve Bank on behalf of 
anyone other than the United States, an agency thereof, or a Federal 
Reserve Bank, in connection with any judicial or other proceeding, 
application, request for ruling or determination, or other particular 
matter involving a specific party or parties in which the United States, 
an agency thereof, or a Federal Reserve Bank is also a party or has a 
direct and substantial interest, and which matter was in process during 
his tenure of office or period of employment and under his official 
Board responsibility, at any time within a period of one year after the 
termination of such responsibility.
    (c) Consultation as to propriety of appearance before the Board. Any 
former member or employee of the Board who wishes to personally appear 
before the Board or a Federal Reserve Bank on behalf of any party other 
than the United States or an agency thereof or a Federal Reserve Bank at 
any time within two years from termination of employment with the Board 
is advised to consult the General Counsel or the Secretary of the Board 
as to the propriety of such appearance.
    (d) Rulemaking proceedings. Nothing in this section shall preclude a 
former member or employee of the Board from representing another person 
in any Board or Federal Reserve Bank proceeding governed by a rule, 
regulation, standard, or policy of the Board solely by reason of the 
fact that such former member or employee participated in or had official 
responsibility in the formation or adoption of such rule, regulation, 
standard, or policy.
    (e) Effective date. This part shall become effective November 6, 
1973. Notwithstanding the foregoing, the limitations of this part shall 
not apply to any activities with respect to a specific matter before the 
Board in which any former Board member or employee may be engaged on 
September 21, 1973, the date of publication of this part, until the 
expiration of 60 days following the effective date of this part or of 
such additional period as the Secretary of the Board may determine to be 
appropriate in order to avoid inequity.

[[Page 735]]



Sec. 266.4   Suspension of appearance privilege.

    If any person knowingly and willfully fails to comply with the 
provisions of this part, the Board may decline to permit such person to 
appear personally before it or a Federal Reserve Bank for such periods 
of time as it may determine and may impose such other sanctions as the 
Board may deem just and proper.



Sec. 266.5   Criminal penalties.

    Any former member or employee of the Board who engages in actions in 
contravention of paragraph (a) or (b) of Sec. 266.3 may be subject to 
criminal penalties for violation of section 207 of the United States 
Criminal Code (18 U.S.C. 207).



PART 267--RULES OF ORGANIZATION AND PROCEDURE OF THE CONSUMER ADVISORY COUNCIL--Table of Contents




Sec.
267.1  Statutory authority.
267.2  Purposes and objectives of the Council.
267.3  Members.
267.4  Officers.
267.5  Meetings.
267.6  Amendments.

    Authority: Sec. 703, Equal Credit Opportunity Act, as amended in 
Pub. L. 94-239.

    Source: 41 FR 49802, Nov. 11, 1976, unless otherwise noted.



Sec. 267.1   Statutory authority.

    Section 703 of the Equal Credit Opportunity Act, as amended, 
provides:

    The Board [of Governors of the Federal Reserve System] shall 
establish a Consumer Advisory Council to advise and consult with it in 
the exercise of its functions under the Consumer Credit Protection Act 
and to advise and consult with it concerning other consumer related 
matters it may place before the Council. In appointing the members of 
the Council, the Board shall seek to achieve a fair representation of 
the interests of creditors and consumers. The Council shall meet from 
time to time at the call of the Board. Members of the Council who are 
not regular full-time employees of the United States shall, while 
attending meetings of such Council, be entitled to receive compensation 
at a rate fixed by the Board, but not exceeding $100 per day, including 
travel time. Such members may be allowed travel expenses, including 
transportation and subsistence, while away from their homes or regular 
place of business.



Sec. 267.2   Purposes and objectives of the Council.

    The Council shall advise and consult with the Board in the exercise 
of the Board's functions under the Consumer Credit Protection Act and 
with regard to other matters the Board may place before the Council.



Sec. 267.3   Members.

    (a) The Council shall consist of not more than 30 members appointed 
by the Board. The term of office of each member of the Council shall be 
three years. However, the initial terms of the members first taking 
office shall expire as follows: approximately one-third on December 31, 
1977, and approximately one-third at the end of each of the two 
succeeding calendar years. After the expiration of any member's term of 
office, such member may continue to serve until a successor has been 
appointed by the Board. The Board shall have the authority to appoint 
persons to fill vacancies on the Council.
    (b) Resignation. Any member may resign at any time by giving notice 
to the Board. Any such resignation shall take effect upon its acceptance 
by the Board.
    (c) Compensation. Members who are not regular full-time employees of 
the United States shall be paid travel expenses, including 
transportation and subsistence, and compensation of $100 for each day 
devoted to attending and traveling to and from meetings.



Sec. 267.4   Officers.

    (a) Chairman. The Board shall appoint a Chairman and a Vice Chairman 
from among the members of the Council, who shall serve at the pleasure 
of the Board. The Chairman, or in the Chairman's absence the Vice 
Chairman, shall preside at all meetings of the Council. The Board may 
appoint a Chairman pro tem who shall preside at a meeting of the Council 
in the absence of the Chairman and Vice Chairman.
    (b) Secretary. The Board shall designate a member of its staff, who 
may but need not be the representative described in Sec. 267.5(c), to 
act as Secretary

[[Page 736]]

of the Council. The Secretary shall record and maintain minutes of the 
meetings of the Council. Minutes of each meeting shall contain, among 
other things, a record of the persons present, a description of the 
matters discussed, and recommendations made. The person acting as 
Secretary at a meeting shall certify to the accuracy of the minutes of 
that meeting.



Sec. 267.5   Meetings.

    (a) Time. Meetings of the Council shall be held at least once each 
year and may be held more frequently at the call of the Board.
    (b) Agenda. Each meeting of the Council shall be conducted in 
accordance with an agenda formulated or approved by the Board.
    (c) Board representation. Each meeting of the Council shall be 
attended by a representative of the Board who is either a member of the 
Board or of the Board's staff. The Board representative shall have 
authority to and shall adjourn any meeting of the Council when such 
representative considers adjournment to be in the public interest.
    (d) Public nature. (1) Each meeting of the Council shall, to the 
extent of reasonably available facilities, be open to public observation 
unless the Board, in accordance with paragraph (d)(6), of this section, 
determines that the meeting shall be closed.
    (2) Notice of the time, place and purpose of each meeting, as well 
as a summary of the proposed agenda, shall be published in the Federal 
Register not more than 45 or less than 15 days prior to the scheduled 
meeting date. Insofar as is practicable, a list of persons and 
organizations interested in the Council shall be maintained, and a 
notice of each meeting shall be mailed to such persons and organizations 
at least 15 days in advance of the scheduled meeting date. Shorter 
notice may be given when the Board determines that its business so 
requires; in such event, the public, including persons and organizations 
described in the preceding sentence, will be given notice at the 
earliest practicable time.
    (3) Members of the public may file written statements with the 
Council prior to the meeting concerning matters on the Council's agenda. 
The person presiding at the Council meeting may permit members of the 
public to submit written statements on such matters within a specified 
time after the Council meeting. All such submissions shall be circulated 
to the Council members as soon as is practicable.
    (4) Oral presentations at the Council meetings by members of the 
public shall not be permitted except upon invitation of the Council. 
However, if the Council and the Board determine that public hearings 
regarding a matter or matters of concern to the Council are warranted, 
members of the public may make presentations at such hearings in 
accordance with procedures established therefor.
    (5) Minutes of meetings, records, reports, studies, and agenda of 
the Council shall be available to the public for copying at the Board's 
offices in Washington, DC, in accordance with the provisions of 12 CFR 
part 261 Rules Regarding Availability of Information. Requests for 
copies of such documents should be addressed to the Secretary, Board of 
Governors of the Federal Reserve System, Washington, DC 20551.
    (6) The Board may close to the public any meeting, or any portion of 
any meeting, of the Council if it determines that such meeting or 
portion thereof is likely to:
    (i) Disclose matters that relate solely to internal personnel rules 
and practices of the Council;
    (ii) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (iii) Involve accusing any person of a crime, or formally censuring 
any person;
    (iv) Disclose information of a personal nature where disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (v) Disclose information contained in or related to examination, 
operating or condition reports prepared by, on behalf of, or for the use 
of an agency responsible for the regulation or supervision of financial 
institutions;
    (vi) Disclose information the premature disclosure of which would be 
likely to lead to significant financial speculation in currencies, 
securities, or commodities or significantly endanger

[[Page 737]]

the stability of any financial institution;
    (vii) Disclose information the premature disclosure of which would 
be likely to frustrate significantly implementation of a proposed Board 
action, unless the Board has already disclosed to the public the content 
or nature of its proposed action, or where the Board is required by law 
to make such disclosure on its own initiative prior to taking final 
action on the proposal; or
    (viii) Which relate to any legal proceedings, agency adjudicatory 
proceeding or arbitration involving the Board or the Council.
    (e) If the Board closes a meeting or any portion of a meeting, the 
Council will issue, at least annually, a report containing a summary, 
consistent with 5 U.S.C. 552(b) (1970), of the Council's activities 
during such closed meetings or portions of meetings.



Sec. 267.6   Amendments.

    These rules of organization and procedure may be amended or repealed 
at any time by action of the Board, provided, however, that members of 
the Council shall be promptly notified by the Board of any such action.



PART 268--RULES REGARDING EQUAL OPPORTUNITY--Table of Contents




            Subpart A--General Provisions and Administration

Sec.
268.101  Authority, purpose and scope.
268.102  Definitions.
268.103  Equal employment designations.

          Subpart B--Board Program To Promote Equal Opportunity

268.201  General policy for equal opportunity.
268.202  Board program for equal employment opportunity.
268.203  Complaints of discrimination covered under this part.
268.204  Pre-complaint processing.
268.205  Individual complaints.
268.206  Dismissals of complaints.
268.207  Investigation of complaints.
268.208  Hearings.
268.209  Final decisions.

        Subpart C--Provisions Applicable to Particular Complaints

268.301  Age Discrimination in Employment Act.
268.302  Equal Pay Act.
268.303  Rehabilitation Act.
268.304  Employment of noncitizens.
268.305  Class complaints.

    Subpart D--Review by the Equal Employment Opportunity Commission

268.401  Review by the Equal Employment Opportunity Commission.
268.402  Time limits for review by the Equal Employment Opportunity 
          Commission.
268.403  How to seek review.
268.404  Procedure on review.
268.405  Decisions on review.
268.406  Reconsideration.

           Subpart E--Remedies, Enforcement and Civil Actions

268.501  Remedies and relief.
268.502  Compliance with EEOC decisions.
268.503  Enforcement of EEOC decisions.
268.504  Compliance with settlement agreements and final decisions.
268.505  Civil action: Title VII, Age Discrimination in Employment Act 
          and Rehabilitation Act.
268.506  Civil action: Equal Pay Act.
268.507  Effect of filing a civil action.

               Subpart F--Matters of General Applicability

268.601  EEO group statistics.
268.602  Reports to the Equal Employment Opportunity Commission.
268.603  Voluntary settlement attempts.
268.604  Filing and computation of time.
268.605  Representation and official time.
268.606  Joint processing and consolidation of complaints.

  Subpart G--Prohibition Against Discrimination in Board Programs and 
          Activities Because of a Physical or Mental Disability

268.701  Purpose and application.
268.702  Notice.
268.703  Prohibition against discrimination.
268.704  Employment.
268.705  Program accessibility: Discrimination prohibited.
268.706  Program accessibility: Existing facilities.
268.707  Program accessibility: New construction and alterations.
268.708  Communications.
268.709  Compliance procedures.

    Authority: 12 U.S.C. 244 and 248(i), (k) and (l).


[[Page 738]]


    Source: 59 FR 16098, April 6, 1994, unless otherwise noted.



            Subpart A--General Provisions and Administration



Sec. 268.101  Authority, purpose and scope.

    (a) Authority. The regulations in this part (12 CFR part 268) are 
issued by the Board of Governors of the Federal Reserve System under the 
authority of sections 10(4) and 11(i), (k) and (l) of the Federal 
Reserve Act (partially codified in 12 U.S.C. 244 and 248(i), (k) and 
(l)).
    (b) Purpose and scope. This part sets forth the Board's policy, 
program and procedures for providing equal opportunity to Board 
employees and applicants for employment without regard to race, color, 
religion, sex, national origin, age, or physical or mental disability. 
It also sets forth the Board's policy, program and procedures for 
prohibiting discrimination on the basis of physical or mental disability 
in programs and activities conducted by the Board. It also specifies the 
circumstances under which the Board will hire or decline to hire persons 
who are not citizens of the United States, consistent with the Board's 
operational needs, the requirements and prohibitions of the Immigration 
Reform and Control Act of 1986, as amended, and other applicable law.



Sec. 268.102  Definitions.

    The definitions contained in this section shall have the following 
meanings throughout this part unless otherwise stated.
    (a) ADEA means the Age Discrimination In Employment Act (29 U.S.C. 
621 et seq.).
    (b) Agent of the class means a class member who acts for the class 
during the processing of the class complaint under Sec. 268.305 of this 
part.
    (c) Agreement of resolution means the agreement referred to in 
Sec. 268.305(f)(3) of this part.
    (d) Auxiliary aids as used in subpart G of this part means services 
or devices that enable persons with impaired sensory, manual, or 
speaking skills to have an equal opportunity to participate in, and 
enjoy the benefits of, programs or activities conducted by the Board. 
For example, auxiliary aids useful for persons with impaired vision 
include readers, Braille materials, audio recordings, telecommunication 
devices and other similar services and devices. Auxiliary aids useful 
for persons with impaired hearing include telephone handset amplifiers, 
telephones compatible with hearing aids, telecommunication devices for 
deaf persons (TDD's), interpreters, note takers, written materials, and 
other similar services and devices.
    (e) Board means the Board of Governors of the Federal Reserve 
System.
    (f) Class as used in Sec. 268.305 of this part means a group of 
Board employees, former employees or applicants for employment who 
allegedly have been or are being adversely affected by a personnel 
policy or practice of the Board that discriminates against the group on 
the basis of their race, color, religion, sex, national origin, age or 
disability.
    (g) Class complaint means a written complaint of discrimination 
filed on behalf of a class by the agent of the class alleging that:
    (1) The class is so numerous that a consolidated complaint of the 
members of the class is impractical;
    (2) There are questions of fact common to the class;
    (3) The claims of the agent of the class are typical of the claims 
of the class; and
    (4) The agent of the class, or, if represented, the representative, 
will fairly and adequately protect the interests of the class.
    (h) Commission means the Equal Employment Opportunity Commission.
    (i) Complainant means an aggrieved person who files an individual 
complaint pursuant to Sec. 268.205 of this part, except that complainant 
shall mean a complainant, agent of the class or individual class 
claimant for purposes of Secs. 268.209, 268.402 through 268.406 and 
subparts E and F of this part.
    (j) Complete complaint as used in subpart G of this part means a 
written statement that contains the complainant's name and address and 
describes the Board's alleged discriminatory actions in sufficient 
detail to inform the Board of the nature and date of the alleged 
violation. It shall be signed by

[[Page 739]]

the complainant or by someone authorized to do so on his or her behalf. 
Complaints filed on behalf of classes or third parties shall describe or 
identify (by name, if possible) the alleged victims of discrimination.
    (k) EEOC decision means the written decision issued by the 
Commission's Office of Federal Operations as described in Sec. 268.405 
of this part.
    (l) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    (m) Final decision means the Board's decision described in 
Sec. 268.209 of this part.
    (n) Has a record of such an impairment means has a history of, or 
has been classified (or misclassified) as having, a physical or mental 
impairment that substantially limits one or more major life activities.
    (o) Individual with a disability means a person who:
    (1) Has a physical or mental impairment which substantially limits 
one or more of such person's major life activities;
    (2) Has a record of such an impairment; or
    (3) Is regarded as having such an impairment; and
    (4) Shall not include an individual, a Board employee or applicant 
for employment, impaired while under the influence of illegal drugs, an 
individual disabled by alcoholism, or an individual with an infectious 
or communicable disease, as further defined in Sec. 268.303(g) of this 
part.
    (p) Investigator means an investigative officer or complaint 
examiner selected or appointed pursuant to Secs. 268.103(c)(11) and 
268.305(e)(3) of this part.
    (q) Is regarded as having an impairment means:
    (1) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Board as constituting 
such a limitation;
    (2) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (3) Has none of the impairments defined in Sec. 268.102(s) of this 
part, but is treated by the Board as having such an impairment.
    (r) Major life activities means functions, such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning and working.
    (s) Physical or mental impairment means:
    (1) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, hemic and lymphatic, skin, and endocrine; or
    (2) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (t) Qualified individual with a disability means:
    (1) With respect to a Board program or activity under which a person 
is required to perform services or to achieve a level of accomplishment, 
an individual with a disability who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the Board can 
determine on the basis of a written record would result in a fundamental 
alteration in its nature;
    (2) With respect to any other program or activity, an individual 
with a disability who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
or
    (3) With respect to employment, an individual with a disability who, 
with or without reasonable accommodation, can perform the essential 
functions of the position in question without endangering the health and 
safety of the individual or others, and who meets the experience or 
education requirements (which may include passing a written test) of the 
position in question.
    (u) Title VII means Title VII of the Civil Rights Act (42 U.S.C. 
2000e et seq.).

[[Page 740]]



Sec. 268.103   Equal employment designations.

    (a) Administrative Governor. The Administrative Governor, a member 
of the Board of Governors designated by the Chairman of the Board, is 
charged with overseeing the internal affairs of the Board and is 
empowered to make decisions and determinations on behalf of the Board 
when authority to do so is delegated to him or her.
    (1) The Administrative Governor is hereby delegated the authority to 
make determinations adjudicating complaints of discrimination pursuant 
to Secs. 268.206, 268.209, 268.305(i) and 268.709 of this part, unless a 
member of the Board of Governors has requested that the Board of 
Governors make the decision on the complaint pursuant to 
Secs. 268.209(a) or 268.709(k) of this part, settlements pursuant to 
Sec. 268.305(f) of this part and determinations regarding attorney fees 
pursuant to Sec. 268.501(e) of this part. The Administrative Governor is 
further delegated the authority to order such corrective measures, 
including such remedial actions as may be required by subpart E of this 
part, as he or she may consider necessary, including such disciplinary 
action as is warranted by the circumstances when an employee has been 
found to have engaged in a discriminatory practice.
    (2) The Administrative Governor may delegate to any officer or 
employee of the Board any of his or her duties or functions under this 
part.
    (3) The Administrative Governor may refer to the Board of Governors 
for determination or decision any complaint of discrimination that the 
Administrative Governor would otherwise decide pursuant to 
Secs. 268.206, 268.209, 268.305(i) and 268.709 of this part, settlements 
pursuant to Sec. 268.305(f) of this part and determinations regarding 
attorney fees pursuant to Sec. 268.501(e) of this part, and may make 
changes in programs and procedures designed to eliminate discriminatory 
practices or to improve the Board's programs under this part, and may 
make any recommendation for remedial or disciplinary action with respect 
to managerial or supervisory employees who have failed in their 
responsibilities, or employees who have been found to have engaged in 
discriminatory practices, or with regard to any other matter which the 
Administrative Governor believes merits the attention of the Board of 
Governors.
    (b) Staff Director for Management. The Staff Director for Management 
shall perform the following functions under this part:
    (1) When so authorized by the Administrative Governor, the Staff 
Director for Management shall make any determinations on complaints of 
discrimination that would otherwise be made by the Administrative 
Governor under Secs. 268.206, 268.209, 268.305(i) and 268.709 of this 
part, settlement pursuant to Sec. 268.305(f) of this part and 
determinations regarding attorney fees pursuant to Sec. 268.501(e) of 
this part. The Staff Director for Management shall order such corrective 
measures, including such remedial actions as may be required by subpart 
E of this part as he or she may consider necessary, and including the 
recommendation for such disciplinary action as is warranted by the 
circumstances when an employee is found to have engaged in a 
discriminatory practice.
    (2) The Staff Director for Management shall review the record on any 
complaint under this part before a determination is made by the Board of 
Governors or the Administrative Governor on the complaint and make such 
recommendations as to the determination as he or she considers 
desirable, including any recommendation for such disciplinary action as 
is warranted by the circumstances when an employee is found to have 
engaged in a discriminatory practice.
    (3) When authorized by the Administrative Governor, the Staff 
Director for Management may make changes in programs and procedures 
designed to eliminate discriminatory practices and improve the Board's 
program for equal employment opportunity.
    (c) EEO Programs Director. The EEO Programs Director is appointed by 
the Board of Governors and shall perform the following functions under 
this part:
    (1) Administer the Board's equal employment opportunity program and 
advise the Board, the Administrative Governor and the Staff Director for

[[Page 741]]

Management with respect to the preparation of equal employment 
opportunity plans, goals, objectives, procedures, regulations, reports, 
and other matters pertaining to the Board's program established under 
Sec. 268.202 of this part;
    (2) Advise and consult with the Chairman of the Board of Governors, 
when necessary, on any matter pertaining to the Board's equal employment 
opportunity program and its administration;
    (3) Evaluate from time to time the sufficiency of the Board's total 
program for equal employment opportunity and report to the Board of 
Governors, the Administrative Governor and the Staff Director for 
Management, with recommendations as to any improvement or correction 
needed, including remedial or disciplinary action with respect to 
managerial, supervisory or other employees who have failed in their 
responsibilities;
    (4) Recommend to the Staff Director for Management and the 
Administrative Governor changes in programs and procedures designed to 
eliminate discriminatory practices and improve the Board's program for 
equal employment opportunity;
    (5) Appoint a Federal Women's Program Manager, a Hispanic Program 
Coordinator, a Disabled Persons Program Coordinator, and such EEO 
Counselor(s) as may be necessary to assist the EEO Programs Director in 
carrying out the functions described in this part. The EEO Programs 
Director shall ensure such managers, coordinators and counselor(s) shall 
receive full and proper training to implement their duties and 
responsibilities under this part;
    (6) Publicize to Board employees and applicants for employment and 
post at all times on official Board bulletin boards:
    (i) The names, business telephone numbers, business addresses and 
the equal employment opportunity responsibilities of the Staff Director 
for Management, the EEO Programs Director, the Federal Women's Program 
Manager, the Hispanic Program Coordinator, and the Disabled Persons 
Program Coordinator;
    (ii) The names, business telephone numbers, business addresses of 
EEO Counselors, the segments of the Board for which they are 
responsible, the availability of EEO Counselors to counsel an employee 
or applicant for employment who believes that he or she has been 
discriminated against because or race, color, religion, sex, national 
origin, age, or physical or mental disability, and the requirement that 
an employee or applicant for employment must consult an EEO Counselor as 
provided by Secs. 268.204 and 268.305(a) of this part; and
    (iii) The time limits for contacting EEO Counselors;
    (7) Provide to each employee annually (and the Division of Human 
Resources Management shall provide to each applicant for employment) a 
copy of a notice summarizing the general purposes of this part and 
specifying where copies of this part can be obtained. The EEO Programs 
Director shall ensure that copies of the summary of this part are posted 
in permanent locations in all Board facilities. The EEO Programs 
Director shall, on the request of any employee or applicant for 
employment provide that employee or applicant for employment with a copy 
of this part;
    (8) Provide for counseling of aggrieved individuals and for the 
receipt and processing of individual and class complaints of 
discrimination;
    (9) Provide for the receipt and investigation of individual 
complaints of discrimination, subject to Secs. 268.204 through 268.209 
of this part, and provide for the acceptance and processing and/or 
dismissal of class action complaints in accordance with Sec. 268.305 of 
this part;
    (10) Act as the Board's designee under Sec. 268.305(c) of this part;
    (11) Appoint any investigators as necessary to administer this part. 
The EEO Programs Director is authorized to request the loan or 
assignment of any investigators or administrative judges from any agency 
as necessary to administer this part. The EEO Programs Director shall 
obtain the concurrence of the Staff Director for Management for all 
appointments of and reimbursements to investigators,

[[Page 742]]

whether from the private sector or otherwise, which exceeds the EEO 
Programs Director's procurement authority;
    (12) Assure that individual complaints are fairly and thoroughly 
investigated and that final decisions of the Board are issued in a 
timely manner in accordance with this part;
    (13) Dismiss a complaint, or a portion of a complaint, pursuant to 
Secs. 268.206 and 268.305(c) of this part;
    (14) Suspend the complaint process when appropriate for any matter 
that is before the Merit Systems Protection Board for a determination; 
and
    (15) Make recommendations based upon investigative reports, hearings 
and EEOC decisions which require the Board's final decision pursuant to 
Sec. 268.209 of this part.
    (d) EEO Counselors. The EEO Counselor(s) are appointed by the EEO 
Programs Director. EEO Counselors shall carry out the functions set 
forth in Sec. 268.204 of this part.
    (e) Federal Women's Program Manager. The EEO Programs Director shall 
appoint a Federal Women's Program Manager. The Federal Women's Program 
Manager shall perform the following functions: Advise the Board of 
Governors, the Administrative Governor, the Staff Director for 
Management and the EEO Programs Director on matters affecting, and 
administer the Board's program with respect to, the employment and 
advancement of women.
    (f) Hispanic Program Coordinator. The EEO Programs Director shall 
appoint a Hispanic Program Coordinator. The Hispanic Program Coordinator 
shall perform the following functions: Advise the Board of Governors, 
the Administrative Governor, the Staff Director for Management and the 
EEO Programs Director on matters affecting, and administer the Board's 
program with respect to, the employment and advancement of Hispanics.
    (g) Disabled Persons Program Coordinator. The EEO Programs Director 
shall appoint a Disabled Persons Program Coordinator. The Disabled 
Persons Program Coordinator shall perform the following functions: 
Advise the Board of Governors, the Administrative Governor, the Staff 
Director for Management and the EEO Programs Director on matters 
affecting, and administer the Board's program with respect to, the 
employment and advancement of individuals with a disability.



          Subpart B--Board Program to Promote Equal Opportunity



Sec. 268.201  General policy for equal opportunity.

    (a) It is the policy of the Board to provide equal opportunity in 
employment for all persons, to prohibit discrimination in employment 
because of race, color, religion, sex, national origin, age or 
disability, and to promote the full realization of equal opportunity in 
employment through a continuing affirmative program.
    (b) It is also the policy of the Board to insure equal opportunity 
for individuals with a disability in Board programs and activities 
consistent with section 504 of the Rehabilitation Act (29 U.S.C. 794) 
and to provide equal opportunity for all persons in accordance with the 
Immigration Reform and Control Act of 1986, as amended (8 U.S.C. 1324a).
    (c) No person shall be subject to retaliation for opposing any 
practice prohibited by this part, or for participating in any stage of 
administrative or judicial proceedings under this part. The practices 
prohibited by this part include those made unlawful by Title VII, the 
ADEA, the Equal Pay Act (29 U.S.C. 206(d)) and the Rehabilitation Act 
(29 U.S.C. 791).



Sec. 268.202  Board program for equal employment opportunity.

    (a) The Board, on the basis of a person's race, color, religion, sex 
or national origin, shall not:
    (1) Fail or refuse to hire or discharge any person, or otherwise 
discriminate against any person with respect to his or her compensation, 
terms, conditions or privileges of employment; or
    (2) Limit, segregate, or classify its employees or applicants for 
employment in any way which would deprive or tend to deprive any person 
of employment opportunities or otherwise adversely affect the person's 
status as an employee.

[[Page 743]]

    (b)(1) The Board, on the basis of a person's age, shall not:
    (i) Fail or refuse to hire or discharge any person or otherwise 
discriminate against any person with respect to his or her compensation, 
terms, conditions or privileges of employment;
    (ii) Limit, segregate or classify its employees or applicants for 
employment in any way which would deprive or tend to deprive any person 
of employment opportunities or otherwise adversely affect the person's 
status as an employee or applicant for employment;
    (iii) Reduce the wage rate of any employee in order to comply with 
paragraph (b) of this section;
    (iv) Discriminate against any employee or applicant for employment 
because such employee or applicant for employment has opposed any 
practice forbidden under paragraph (b) of this section, or because such 
employee or applicant for employment has made a charge, testified, 
assisted or participated in any manner in any investigation, proceeding 
or litigation involving paragraph (b) of this section or the ADEA; or
    (v) Print or publish, or cause to be printed or published, any 
notice or advertisement relating to employment by the Board indicating 
any preference, limitation, specification or discrimination.
    (2) An aggrieved person filing a complaint of discrimination on the 
basis of age under this subpart B or Sec. 268.305 of this part must have 
been at least 40 years of age at the time the alleged discrimination 
occurred.
    (c) The Board shall not discriminate among employees on the basis of 
sex by paying wages to employees at a rate less than the rate at which 
it pays wages to employees of the opposite sex for equal work on jobs 
the performance of which require equal skill, effort and responsibility, 
and which are performed under similar conditions, except where such 
payment is made pursuant to:
    (1) A seniority system;
    (2) A merit system;
    (3) A system which measures earnings by quantity or quality or 
production; or
    (4) A differential based on any factor other than sex or otherwise 
not prohibited by this part.
    (d) The Board shall not discriminate against qualified individuals 
with a disability who are physically or mentally disabled. The Board's 
program regarding individuals with a disability in employment is fully 
described in Sec. 268.303 of this part.
    (e) The Board has established, maintains and carries out a 
continuing affirmative program designed to promote equal opportunity and 
to identify and eliminate discriminatory practices and policies. In 
support of its program, the Board:
    (1) Provides sufficient resources to administer its equal 
opportunity program to ensure efficient and successful operation;
    (2) Provides for the prompt, fair and impartial processing of 
complaints in accordance with this part, and consistent with guidance 
proffered by the Commission;
    (3) Conducts a continuing campaign to eradicate every form of 
prejudice or discrimination from the Board's personnel policies, 
practices and working conditions;
    (4) Communicates the Board's equal employment opportunity policy and 
program, and its employment needs to all sources of job candidates 
without regard to race, color, religion, sex, national origin, age, or 
physical or mental disability, and solicits their recruitment assistance 
on a continuing basis;
    (5) Reviews, evaluates and controls managerial and supervisory 
performance in such a manner as to insure a continuing affirmative 
application and vigorous enforcement of the policy of equal employment 
opportunity, and provides orientation, training and advice to managers 
and supervisors to assure their understanding and implementation of the 
Board's equal employment opportunity policy and program;
    (6) Takes appropriate disciplinary action against employees who 
engage in discriminatory practices;
    (7) Makes reasonable accommodation to the religious needs of 
employees and applicants for employment when those accommodations can be 
made without

[[Page 744]]

undue hardship on the operations of the Board;
    (8) Makes reasonable accommodation to the known physical or mental 
limitations of qualified applicants and employees with disabilities 
unless the accommodation would impose an undue hardship on the 
operations of the Board;
    (9) Reassigns, in accordance with Sec. 268.303(f) of this part, 
nonprobationary employees who develop physical or mental limitations 
that prevent them from performing the essential functions of their 
positions even with reasonable accommodation;
    (10) Provides recognition to employees, supervisors, managers and 
units demonstrating superior accomplishment in equal employment 
opportunity;
    (11) Has established a system for periodically evaluating the 
effectiveness of the Board's overall equal employment opportunity 
effort;
    (12) Provides the maximum feasible opportunity to employees to 
enhance their skills through on-the-job training, work-study programs 
and other training measures so that they may perform at their highest 
potential and advance in accordance with their abilities;
    (13) Informs its employees and applicants for employment of the 
Board's affirmative equal opportunity policy and program, and enlists 
the cooperation of Board employees and other proper persons; and
    (14) Participates at the community level with other employers, with 
schools and universities and with other public and private groups in 
cooperative action to improve employment opportunities and community 
conditions that affect employability.
    (f) In order to implement its program, the Board:
    (1) Develops the plans, procedures and regulations necessary to 
carry out its program;
    (2) Appraises its human resources management operations at regular 
intervals to assure their conformity with the Board's program and this 
part, consistent with guidance proffered by the Commission;
    (3) Assigns equal employment opportunity responsibilities as 
appropriate to the Administrative Governor and the Staff Director for 
Management, and designates an EEO Programs Director, EEO Counselors, a 
Federal Women's Program Manager, a Hispanic Program Coordinator and a 
Disabled Persons Program Coordinator, and clerical and administrative 
support, to carry out the functions of this part in all divisions and 
offices at the Board;
    (4) Makes written materials available to all employees and 
applicants for employment informing them of the variety of equal 
employment opportunity programs, and administrative and judicial 
remedial procedures available to them, and prominently posts such 
written materials in its human resource management and EEO offices, and 
throughout the workplace;
    (5) Ensures that full cooperation is provided by all Board employees 
to EEO Counselors, Board equal employment opportunity personnel and to 
investigators in the processing and resolution of pre-complaint matters 
and complaints filed with the Board, and that cooperation is provided to 
the Commission in connection with review of Board decisions, including 
granting the Commission routine access to relevant records of the Board 
as appropriate and consistent with applicable law, regulations and 
policies of the Board; and
    (6) Publicizes to all employees and posts at all times the names, 
business telephone numbers and business addresses of the EEO Counselors, 
a notice of the time limits and necessity of contacting an EEO Counselor 
before filing a complaint, and the telephone numbers and addresses of 
the Staff Director for Management, EEO Programs Director, Federal 
Women's Program Manager, Hispanic Program Coordinator and Disabled 
Persons Program Coordinator.



Sec. 268.203  Complaints of discrimination covered under this part.

    (a) Individual and class complaints of employment discrimination and 
retaliation prohibited by Sec. 268.202(a) (discrimination on the basis 
of race, color, religion, sex and national origin), Sec. 268.202(b) 
(discrimination on the basis of age when the aggrieved person is at

[[Page 745]]

least 40 years of age), Sec. 268.303(a) (discrimination on the basis of 
a disability), or Sec. 268.202(c) (sex-based wage discrimination) of 
this part shall be processed in accordance with this part. Complaints 
alleging retaliation prohibited under this part are considered to be 
complaints of discrimination for purposes of this part.
    (b) Except as set forth in Sec. 268.304 and in subpart G of this 
part, this part applies to all Board employees and applicants for 
employment at the Board, and to all Board personnel policies or 
practices affecting Board employees or applicants for employment at the 
Board.



Sec. 268.204  Pre-complaint processing.

    (a) Aggrieved persons who believe they have been discriminated 
against on the basis of race, color, religion, sex, national origin, age 
or disability must consult an EEO Counselor prior to filing a complaint 
in order to try to informally resolve the matter.
    (1) An aggrieved person must initiate contact with an EEO Counselor 
within 45 days of the date of the matter alleged to be discriminatory 
or, in the case of a personnel action, within 45 days of the date that 
the action was communicated to the aggrieved person.
    (2) The Board shall extend the 45-day time limit in paragraph (a)(1) 
of this section when the individual shows that he or she was not 
notified of the time limits and was not otherwise aware of them, that he 
or she did not know and reasonably should not have known that the 
discriminatory matter or personnel action occurred, that despite due 
diligence he or she was prevented by circumstances beyond his or her 
control from contacting an EEO Counselor within the time limits, or for 
other reasons considered sufficient by the Board.
    (b) At the initial counseling session, EEO Counselors must advise 
individuals in writing of their rights and responsibilities, including 
the right to request a hearing after the investigation by the Board, the 
right to file a notice of intent to sue pursuant to Sec. 268.301(a) of 
this part and to file a lawsuit alleging a violation of the ADEA instead 
of an administrative complaint of age discrimination under this part, 
the duty to mitigate damages, administrative and court time frames, and 
that only the matter(s) raised in pre-complaint counseling (or issues 
like or related to issues raised in pre-complaint counseling) may be 
alleged in a subsequent complaint filed with the Board. EEO Counselors 
must advise individuals of their duty to keep the Board informed of 
their current address, to serve copies of requests for review by the 
Commission on the Board, and to keep the Commission informed of their 
current address in connection with any review of a Board action. The 
notice required by paragraphs (d) and (e) of this section shall include 
a notice of the right to file a class complaint. If the aggrieved person 
informs an EEO Counselor that he or she wishes to file a class 
complaint, the EEO Counselor shall explain the class complaint 
procedures and the responsibilities of the agent of the class.
    (c) EEO Counselors shall conduct counseling activities in accordance 
with instructions promulgated by the EEO Programs Director, which shall 
be consistent with the counseling guidelines contained in the 
Commission's ``EEO Management Directives For 29 CFR part 1614''. When 
advised that a complaint has been filed by an aggrieved person, the EEO 
Counselor shall submit a written report within 15 calendar days to the 
EEO Programs Director and to the aggrieved person concerning the issues 
discussed and actions taken during counseling.
    (d) Unless the aggrieved person agrees to a longer counseling period 
under paragraph (e) of this section, the EEO Counselor shall conduct the 
final interview with the aggrieved person within 30 days of the date the 
aggrieved person brought the matter to the EEO Counselor's attention. If 
the matter has not been resolved, the aggrieved person shall be informed 
in writing by the EEO Counselor, not later than the 30th day after 
contacting the EEO Counselor, of the right to file a discrimination 
complaint with the Board. This notice shall inform the complainant of 
the right to file a discrimination complaint within 15 calendar days of 
receipt of the notice, of the appropriate official with whom to

[[Page 746]]

file a complaint and of the complainant's duty to assure that the EEO 
Programs Director is informed immediately if the complainant retains 
counsel or a representative.
    (e) Prior to the end of the 30-day period, the aggrieved person may 
agree in writing with the Board to postpone the final interview and 
extend the counseling period for an additional period of no more than 60 
days. If the matter has not been resolved before the conclusion of the 
agreed extension, the notice described in paragraph (d) of this section 
shall be issued.
    (f) In the event the aggrieved person believes that he/she has been 
discriminated against and agrees to participate in an established Board 
alternative dispute resolution procedure, the pre-complaint processing 
period of this section will be 90 days. If the matter has not been 
resolved before the 90th day, the notice described in paragraph (d) of 
this section shall then be issued.
    (g) The EEO Counselor shall not attempt in any way to restrain the 
aggrieved person from filing a complaint. The EEO Counselor shall not 
reveal the identity of an aggrieved person who consulted the EEO 
Counselor, except when authorized to do so by the aggrieved person, or 
until the Board has received a discrimination complaint under this part 
from that person involving the same matter.



Sec. 268.205  Individual complaints.

    (a) A complaint alleging that the Board discriminated against the 
complainant must be filed with the Board.
    (b) A complaint must be filed within 15 calendar days of receipt of 
the notice required by Secs. 268.204 (d), (e) or (f) of this part.
    (c) A complaint must contain a signed statement from the person 
claiming to be aggrieved or that person's attorney. This statement must 
be sufficiently precise to identify the aggrieved person and to describe 
generally the action(s) or practice(s) that form the basis of the 
complaint. The complaint must also contain a telephone number and 
address where the complainant or the complainant's representative can be 
contacted.
    (d) The EEO Programs Director shall acknowledge receipt of a 
complaint in writing and inform the complainant of the date on which the 
complaint was filed. Such acknowledgement shall also advise the 
complainant that:
    (1) The complainant has the right to file a request for review with 
the Commission with regard to the Board's final decision or dismissal of 
all or a portion of a complaint; and
    (2) The Board is required to conduct a complete and fair 
investigation of the complaint within 180 days of the filing of the 
complaint unless the parties agree in writing to extend the period.



Sec. 268.206  Dismissals of complaints.

    (a) The Board shall dismiss a complaint or a portion of a complaint:
    (1) That fails to state a claim under Secs. 268.203 and 268.205(c) 
of this part, or states the same claim that is pending before or has 
been decided by the Board or the Commission;
    (2) That fails to comply with the applicable time limits contained 
in Secs. 268.204, 268.205(b) and 268.305(b) of this part, unless the 
Board extends the time limits in accordance with Sec. 268.604(c) of this 
part, or that raises a matter that has not been brought to the attention 
of an EEO Counselor and is not like or related to a matter that has been 
brought to the attention of an EEO Counselor;
    (3) That is the basis of a pending civil action in a United States 
District Court in which the complainant is a party, provided that at 
least 180 days have passed since the filing of the administrative 
complaint, or that was the basis of a civil action decided by a United 
States District Court in which the complainant was a party;
    (4) That is moot or alleges that a proposal to take a personnel 
action, or other preliminary step to taking a personnel action, is 
discriminatory;
    (5) Where the complainant cannot be located, provided that 
reasonable efforts have been made to locate the complainant and the 
complainant has not responded within 15 calendar days to a notice of 
proposed dismissal sent to his or her last known address;
    (6) Where the Board has provided the complainant with a written 
request to provide relevant information or otherwise proceed with the 
complaint, and

[[Page 747]]

the complainant has failed to respond to the request within 15 calendar 
days of its receipt or the complainant's response does not address the 
Board's request, provided that the request included a notice of the 
proposed dismissal. Instead of dismissing for failure to cooperate, the 
complaint may be adjudicated if sufficient information for that purpose 
is available; or
    (7) If, prior to the issuance of the notice required by 
Sec. 268.207(f) of this part, the complainant refuses within 30 days of 
receipt of an offer of settlement to accept the Board's offer of full 
relief containing a certification from the Board's Staff Director for 
Management, the General Counsel or a designee reporting directly to the 
Staff Director for Management or General Counsel (after consulting with 
the EEO Programs Director) that the offer constitutes full relief, 
provided that the offer gave notice that failure to accept would result 
in dismissal of the complaint. An offer of full relief under this 
paragraph (a)(7) is the appropriate relief in Sec. 268.501 of this part.
    (b) The Board shall inform the complainant of the right to file a 
request for review with the Commission with regard to the dismissal of 
the individual complaint pursuant to Sec. 268.401 of this part, or to 
file a civil action. A copy of EEOC Form 573, notice of Appeal/Petition, 
shall be attached to the Board's decision to dismiss an individual 
complaint under this section.



Sec. 268.207  Investigation of complaints.

    (a) The investigation of individual complaints shall be conducted by 
an investigator appointed by the EEO Programs Director.
    (b) Consistent with guidance proffered by the Commission, the Board, 
through the EEO Programs Director, shall develop a complete and 
impartial factual record upon which to make findings on the matters 
raised by the written complaint. The investigator may use an exchange of 
letters or memoranda, interrogatories, investigations, fact-finding 
conferences or any other fact-finding methods that efficiently and 
thoroughly address the matters at issue. The EEO Programs Director may 
incorporate alterative dispute resolution techniques into the 
investigation in order to promote early resolution of complaints.
    (c) The procedures in paragraphs (c)(1) through (4) of this section 
apply to the investigation of complaints:
    (1) The complainant, the Board and any employee of the Board shall 
produce such documentary and testimonial evidence as the investigator 
deems necessary, consistent with applicable laws, regulations and 
policies of the Board.
    (2) The investigator may administer oaths. Statements of witnesses 
shall be made under oath or affirmation or, alteratively, by written 
statement under penalty of perjury.
    (3) When the complainant, or the Board or its employees, fail 
without good cause shown to respond fully and in timely fashion to 
requests for documents, records, comparative data, statistics, 
affidavits or the attendance of witness(es), the investigator may note 
in the investigative record that the Board when rendering a final 
decision should, or the Commission on review may, in appropriate 
circumstances:
    (i) Draw an adverse inference that the requested information, or the 
testimony of the requested witness, would have reflected unfavorably on 
the party refusing to provide the requested information;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to produce 
the requested information or witness;
    (iv) Issue a decision fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as it deems appropriate.
    (4) If documentary or testimonial evidence is needed by the 
investigator, and such documentary evidence is known to be contained in 
the files of another federal agency, or the testimony of an employee of 
another federal agency is needed, the EEO Programs Director shall, if 
necessary, contact the Commission for assistance in obtaining such 
documentary or testimonial evidence.
    (d) The investigation shall be conducted by an investigator with 
appropriate security clearances.

[[Page 748]]

    (e)(1) The Board shall complete its investigation within 180 days of 
the date of the filing of an individual complaint or within the time 
period contained in the determination of the Commission on review of a 
dismissal pursuant to Sec. 268.206 of this part. By written agreement 
within those time periods, the complainant and the Board may voluntarily 
extend the time period for not more than an additional 90 days. The 
Board may unilaterally extend the time period or any period of extension 
for not more than 30 days where it must sanitize an investigative file 
that may contain information classified pursuant to Executive Order No. 
12356, or successor orders, as secret in the interest of national 
defense or foreign policy, provided the Board notifies the complainant 
of the extension.
    (2) Confidential supervisory information, as defined in 12 CFR 
261.2(b), and other confidential information of the Board may be 
included in the investigative file by the investigator, the EEO Programs 
Director, or another appropriate officer of the Board, where such 
information is relevant to the complaint. Neither the complainant nor 
the complainant's personal representative may make further disclosure of 
such information, however, except in compliance with the Board's Rules 
Regarding Availability of Information, 12 CFR part 261, and where 
applicable, the Board's Rules Regarding Access to and Review of Personal 
Information in Systems of Records, 12 CFR part 261a.
    (f) Within 180 days from the filing of the complaint, within the 
time period contained in a determination of the Commission's Office of 
Federal Operations on review of a dismissal, or within any period of 
extension provided for in paragraph (e) of this section, the Board shall 
notify the complainant that the investigation has been completed, shall 
provide the complainant with a copy of the investigative file, and shall 
notify the complainant that, within 30 days of the receipt of the 
investigative file, the complainant has the right to request a hearing 
before an administrative judge from the Commission or may receive an 
immediate final decision pursuant to Sec. 268.209 of this part from the 
Board. In the absence of the required notice, the complainant may 
request a hearing under Sec. 268.208 of this part at any time after 180 
days has elapsed from the filing of the complaint.

[59 FR 16098, Apr. 6, 1994, as amended at 61 FR 252, Jan. 4, 1996]



Sec. 268.208  Hearings.

    (a) Requests. When a complainant requests a hearing, the EEO 
Programs Director shall request the Commission to appoint an 
administrative judge to conduct a hearing in accordance with this 
section. Any hearing will be conducted by an administrative judge or 
hearing examiner with appropriate security clearances. Where the 
administrative judge determines that the complainant is raising or 
intends to pursue issues like or related to those raised in the 
complaint, but which the Board has not had an opportunity to address, 
the administrative judge shall remand any such issue for counseling in 
accordance with Sec. 268.204 of this part or for such other processing 
as may be ordered by the administrative judge.
    (b) Discovery. The administrative judge shall notify the parties of 
the right to seek discovery prior to the hearing and may issue such 
discovery orders as are appropriate. Unless the parties agree in writing 
concerning the methods and scope of discovery, the party seeking 
discovery shall request authorization from the administrative judge 
prior to commencing discovery. Both parties are entitled to reasonable 
development of evidence on matters relevant to the issues raised in the 
complaint, but the administrative judge may reasonably limit the 
quantity and timing of discovery. Evidence may be developed through 
interrogatories, depositions, and requests for admissions, stipulations 
or production of documents. It shall be grounds for objection to 
producing evidence that the information sought by either party is 
irrelevant, overburdensome, repetitious, privileged, or that production 
would be unlawful.
    (c) Conduct of hearing. The Board shall provide for the attendance 
at a hearing of all Board employees approved as witnesses by an 
administrative judge. Attendance at hearings will be limited to persons 
determined by

[[Page 749]]

the administrative judge to have direct knowledge relating to the 
complaint. Hearings are part of the investigative process and are thus 
closed to the public. The administrative judge shall have the power to 
regulate the conduct of a hearing, limit the number of witnesses where 
testimony would be repetitious, and exclude any person from the hearing 
for contumacious conduct or misbehavior that obstructs the hearing. The 
administrative judge shall receive into evidence information or 
documents relevant to the complaint. Rules of evidence shall not be 
applied strictly, but the administrative judge shall exclude irrelevant 
or repetitious evidence. The administrative judge or the Commission may 
refer to the Disciplinary Committee of the appropriate Bar Association 
any attorney or, upon reasonable notice and an opportunity to be heard, 
suspend or disqualify from representing complainants or agencies in 
hearings raising claims of discrimination any representative who refuses 
to follow the orders of an administrative judge, or who otherwise 
engages in improper conduct. The Board in such circumstances may take 
whatever action it deems appropriate to suspend or disqualify any such 
attorney or representative from appearing or practicing before the 
Board.
    (d) Evidentiary procedures. The procedures in paragraphs (d) (1) 
through (3) of this section apply to hearings of complaints:
    (1) The complainant, the Board and any employee of the Board shall 
produce such documentary and testimonial evidence as the administrative 
judge deems necessary, consistent with applicable laws, regulations and 
policies of the Board. If documentary or testimonial evidence is needed 
for the hearing, and such documentary evidence is known to be contained 
in the files of another federal agency, or if the testimony of an 
employee of another federal agency is needed, then the administrative 
judge may seek assistance from appropriate sources in obtaining such 
documentary or testimonial evidence for the hearing.
    (2) Administrative judges are authorized to administer oaths. 
Statements of witnesses shall be made under oath or affirmation or, 
alternatively, by written statement under penalty of perjury.
    (3) When the complainant, or the Board or its employees fail without 
good cause shown to respond fully and in timely fashion to requests for 
documents, records, comparative data, statistics, affidavits, or the 
attendance of witness(es), the administrative judge may, in appropriate 
circumstances:
    (i) Draw an adverse inference that the requested information, or the 
testimony of the requested witness, would have reflected unfavorably on 
the party refusing to provide the requested information;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to produce 
the requested information or witness;
    (iv) Issue a finding fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as appropriate.
    (e) Findings and conclusions without hearing. (1) If a party 
believes that some or all material facts are not in genuine dispute and 
there is no genuine issue as to credibility, the party may, at least 15 
calendar days prior to the date of the hearing or at such earlier time 
as required by the administrative judge, file a statement with the 
administrative judge prior to the hearing setting forth the fact or 
facts and referring to the parts of the record relied on to support the 
statement. The statement must demonstrate that there is no genuine issue 
as to any such material fact. The party shall serve the statement on the 
opposing party.
    (2) The opposing party may file an opposition within 15 calendar 
days of receipt of the statement in paragraph (e)(1) of this section. 
The opposition may refer to the record in the case to rebut the 
statement that a fact is not in dispute or may file an affidavit stating 
that the party cannot, for reasons stated, present facts to oppose the 
request. After considering the submissions, the administrative judge may 
order that discovery be permitted on the fact or facts involved, limit 
the hearing to the issues remaining in dispute, issue findings and 
conclusions

[[Page 750]]

without a hearing or make such other ruling as is appropriate.
    (3) If the administrative judge determines upon his or her own 
initiative that some or all facts are not in genuine dispute, he or she 
may, after giving notice to the parties and providing them an 
opportunity to respond in writing within 15 calendar days, issue an 
order limiting the scope of the hearing or issue findings and 
conclusions without holding a hearing.
    (f) Record of hearing. The hearing shall be recorded and the Board 
shall arrange and pay for verbatim transcripts. All documents submitted 
to, and accepted by, the administrative judge at the hearing shall be 
made part of the record of the hearing. If the Board submits a document 
that is accepted, it shall furnish a copy of the document to the 
complainant. If the complainant submits a document that is accepted, the 
administrative judge shall make the document available to the Board's 
representative for reproduction.
    (g) Findings and conclusions. Unless the administrative judge makes 
a written determination that good cause exists for extending the time 
for issuing findings of fact and conclusions of law, within 180 days of 
a request for a hearing being received by the Commission, an 
administrative judge shall issue findings of fact and conclusions of law 
on the merits of the complaint, and shall order appropriate relief where 
discrimination is found with regard to the matter that gave rise to the 
complaint. The administrative judge shall send copies of the entire 
record, including the transcript, and the findings and conclusions to 
the parties by certified mail, return receipt requested. Within 60 days 
of receipt of the findings and conclusions, the Board may reject or 
modify the findings and conclusions or the relief ordered by the 
administrative judge and issue a final decision in accordance with 
Sec. 268.209 of this part. If the Board does not, within 60 days of 
receipt of the findings and conclusions, accept, reject or modify the 
findings and conclusions of the administrative judge, then the findings 
and conclusions of the administrative judge and the relief ordered shall 
become the final decision of the Board and the Board shall notify the 
complainant of the final decision in accordance with Sec. 268.209 of 
this part.



Sec. 268.209  Final decisions.

    (a) The EEO Programs Director shall notify the Board of Governors 
when a complaint is ripe for decision under this section. At the request 
of any member of the Board of Governors made within 3 business days of 
such notice, the Board of Governors shall make the decision on the 
complaint. If no such request is made, the Administrative Governor, or 
the Staff Director for Management if he or she is delegated the 
authority to do so under Sec. 268.103(a)(2) of this part, shall make the 
decision on the complaint.
    (b) The Board shall issue a final decision:
    (1) Within 60 days of receiving notification that a complainant has 
requested an immediate decision in accordance with Sec. 268.207(f) of 
this part;
    (2) Within 60 days of the end of the 30-day period for the 
complainant to request a hearing or an immediate final decision where 
the complainant has not requested either a hearing or a final decision 
as provided by Sec. 268.207(f) of this part;
    (3) Within 60 days of receiving the findings and conclusions of an 
administrative judge under Sec. 268.208(g) of this part;
    (4) Within 30 days of receiving the written recommendation of an 
administrative judge to accept or reject the class complaint pursuant to 
Sec. 268.305(c)(7) of this part;
    (5) If it decides to vacate an agreement of resolution upon the 
selection of a member of the class pursuant to Sec. 268.305(f)(4) of 
this part;
    (6) Within 60 days of receiving findings and recommendations of an 
administrative judge following a class action hearing pursuant to the 
procedures stated under Sec. 268.305(i) of this part;
    (7) Within 90 days of receipt of a written claim by a class member 
pursuant to Sec. 268.305(k)(3) of this part; or
    (8) Within 30 days of receiving the EEOC decision pursuant to 
Sec. 268.405(c) of this part.
    (c) The final decision of the Board shall consist of findings by the 
Board

[[Page 751]]

on the merits of each issue in the complaint, or following review by the 
Commission, the reason or reasons for acceptance, modification or 
rejection of each finding in an EEOC decision. When discrimination is 
found and indicated in the final decision, appropriate remedies and 
relief in accordance with subpart E of this part will be addressed in 
the final decision.
    (d) The final decision shall contain information regarding the right 
to file a request for review with the Commission of final decisions 
pursuant to paragraphs (b)(1) through (7) of this section and the 
procedures for filing a request for review with the Commission, the 
right to file a civil action in a United States District Court, 
including the name of the proper defendant in any such lawsuit, and the 
applicable time limits for reviews and lawsuits. A copy of EEOC Form 
573, Notice of Appeal/Petition, shall be attached to the final decision 
pursuant to paragraphs (b)(1) through (7) of this section.



        Subpart C--Provisions Applicable to Particular Complaints



Sec. 268.301  Age Discrimination in Employment Act.

    (a) As an alterative to filing a complaint of discrimination on the 
basis of age under this part, an aggrieved person may file a civil 
action in a United States District Court against the Board of Governors. 
The aggrieved person must give notice of his or her intent to file such 
action with the Commission, with a copy to the Board's EEO Programs 
Director, not less than 30 days prior to filing such civil action. The 
notice must be filed in writing with the Commission: Federal Sector 
Programs, Equal Employment Opportunity Commission, 1801 L Street, NW, 
Washington, DC 20507, within 180 days of the occurrence of the alleged 
unlawful practice.
    (b) The Commission may exempt a position from the provisions of the 
ADEA if the Commission establishes a maximum age requirement for the 
position on the basis of a determination that age is a bona fide 
occupational qualification necessary to the performance of the duties of 
the position. The Board may adopt a Commission exemption for inclusion 
under this section.
    (c) When an aggrieved person has filed a complaint under 
Sec. 268.205 or Sec. 268.305 of this part alleging age discrimination, 
administrative remedies will be considered to be exhausted for purposes 
of filing, a civil action:
    (1) 180 days after the filing of an individual complaint if the 
Board has not issued a final decision and the complainant has not filed 
a request for review by the Commission, or 180 days after the filing of 
a class complaint if the Board has not issued a final decision;
    (2) After the issuance of a final decision under Sec. 268.209 of 
this part on an individual or class complaint if the individual has not 
filed a request for review with the Commission; or
    (3) After the issuance of a final decision under Sec. 268.209(b)(8) 
following an EEOC decision under Sec. 268.405 of this part, or 180 days 
after the filing of a request for review under subpart D of this part if 
the Commission has not issued an EEOC decision.

[59 FR 16098, Apr. 6, 1996, as amended at 61 FR 13079, Mar. 26, 1996]



Sec. 268.302  Equal Pay Act.

    (a) Any employee who believes he or she has received unequal pay due 
to discrimination based on sex may seek recovery of withheld wages by 
filing a complaint of discrimination under subpart B of this part, if a 
complaint of individual discrimination, or under Sec. 268.305 of this 
part if a class action, except that civil actions shall be filed 
pursuant to paragraph (b) of this section.
    (b) A complainant, agent of the class or individual class claimant 
under this section may file a civil action against the Board pursuant to 
Sec. 268.506 of this part in a United States District Court should the 
complainant, agent of the class or individual class claimant believe he 
or she has been denied equal pay.
    (c) The Board shall preserve any records that are made in the 
regular course of business which relate to the payment of wages, wage 
rates, job evaluations, job descriptions, merit systems, seniority 
systems, description of

[[Page 752]]

practices, or other matters which describe or explain the basis for 
payment of any wage differential to employees of the opposite sex, and 
which may be pertinent to the determination of whether such differential 
is based on a factor other than sex. Such records are to be kept for at 
least 3 years.
    (d) Wages withheld in violation of Sec. 268.202(c) of this part have 
the status of unpaid minimum wage or unpaid overtime compensation.



Sec. 268.303  Rehabilitation Act.

    (a) General policy. The Board shall give full consideration to the 
hiring, placement and advancement of qualified individuals with a 
disability who are physically or mentally disabled. The Board shall be a 
model employer of individuals with a disability. The Board shall not 
discriminate against individuals with a disability who are physically or 
mentally disabled.
    (b) Reasonable accommodation. (1) The Board shall make reasonable 
accommodation to the known physical or mental limitations of an employee 
or applicant for employment who is a qualified individual with a 
disability unless the Board can demonstrate that the accommodation would 
impose an undue hardship on its operations.
    (2) Reasonable accommodation may include, but shall not be limited 
to:
    (i) Making facilities readily accessible to and usable by 
individuals with a disability; and
    (ii) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, appropriate 
adjustment or modification of examinations, the provision of readers and 
interpreters, and other similar actions.
    (3) In determining whether, pursuant to paragraph (b)(1) of this 
section, an accommodation would impose an undue hardship on the 
operation of the Board, factors to be considered include:
    (i) The overall size of the Board's operations with respect to the 
number of employees, number and type of facilities and size of budget;
    (ii) The type of Board operation, including the composition and 
structure of the Board's work force; and
    (iii) The nature and the cost of the accommodation.
    (c) Employment criteria. (1) The Board shall not make use of any 
employment test or other selection criterion that screens out or tends 
to screen out qualified individuals with a disability or any class of 
individuals with a disability unless:
    (i) The test score or other selection criterion is job-related for 
the position in question and consistent with business necessity; and
    (ii) There are no available alterative job-related tests that do not 
screen out or tend to screen out as many individuals with a disability.
    (2) The Board shall select and administer tests concerning 
employment so as to insure that, when administered to an employee or 
applicant for employment who has a disability that impairs sensory, 
manual, or speaking skills, the test results accurately reflect the 
employee's or applicant's ability to perform the position or type of 
position in question rather than reflecting the employee's or 
applicant's impaired sensory, manual, or speaking skill (except where 
those skills are the factors that the test purports to measure).
    (d) Pre-employment inquiries. (1) Except as provided in paragraphs 
(d)(2) and (3) of this section, the Board shall not conduct a pre-
employment medical examination and shall not make pre-employment inquiry 
of an applicant as to whether the applicant is an individual with a 
disability or as to the nature or severity of a disability. The Board 
may, however, make pre-employment inquiry into an applicant's ability to 
meet the essential functions of the job, or the medical qualification 
requirements if applicable, with or without reasonable accommodation, of 
the position in question, i.e., the minimum abilities necessary for safe 
and efficient performance of the duties of the position in question.
    (2) Nothing in this section shall prohibit the Board from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty, provided 
that:
    (i) All entering employees are subjected to such an examination 
regardless of disability or when the pre-employment medical 
questionnaire used

[[Page 753]]

for positions that do not routinely require medical examination 
indicates a condition for which further examination is required because 
of the job-related nature of the condition; and
    (ii) The results of such an examination are used only in accordance 
with the requirements of this part.
    (3) Nothing in this section shall be construed to prohibit the 
gathering of pre-employment medical information for the purpose of 
hiring individuals with a disability.
    (4) To enable and evaluate affirmative action to hire, place or 
advance individuals with a disability, the Board may invite employees 
and applicants for employment to indicate whether and to what extent 
they are disabled, if:
    (i) The Board states clearly on any written questionnaire used for 
this purpose or makes clear orally if no written questionnaire is used, 
that the information requested is intended for use solely in conjunction 
with affirmative action; and
    (ii) The Board states clearly that the information is being 
requested on a voluntary basis, that refusal to provide it will not 
subject the employee or applicant for employment to any adverse 
treatment, and that it will be used only in accordance with this part.
    (5) Information obtained in accordance with this section as to the 
medical condition or history of the employee or applicant for employment 
shall be kept confidential except that:
    (i) Managers, selecting officials, and others involved in the 
selection process or responsible for affirmative action may be informed 
that the employee or applicant for employment is an individual with a 
disability;
    (ii) Supervisors and managers may be informed regarding necessary 
accommodations;
    (iii) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment;
    (iv) Government officials investigating compliance with laws, 
regulations, and instructions relevant to equal employment opportunity 
and affirmative action for individuals with a disability shall be 
provided information upon request; and
    (v) Statistics generated from information obtained may be used to 
manage, evaluate, and report on equal employment opportunity and 
affirmative action programs.
    (e) Physical access to buildings. (1) The Board shall not 
discriminate against employees or applicants for employment who are 
qualified individuals with a disability due to the inaccessibility of 
its facility.
    (2) It shall be the policy of the Board to comply with the 
provisions of the Rehabilitation Act, the Architectural Barriers Act of 
1968 (42 U.S.C. 4151 et seq.) and the Americans With Disabilities Act of 
1990 (42 U.S.C. 12183 and 12204).
    (f) Reassignment. When a nonprobationary employee becomes unable to 
perform the essential functions of his or her position even with 
reasonable accommodation due to a disability, the Board shall offer to 
reassign the individual to a funded vacant position at the same grade 
level, the essential functions of which the employee would be able to 
perform with reasonable accommodation if necessary unless the 
reassignment would impose an undue hardship on the operation of the 
Board. In the absence of a position at the same grade level, an offer of 
reassignment to a vacant position at the highest available grade level 
below the employee's current grade level shall be made, but availability 
of such a vacancy shall not affect the employee's entitlement, if any, 
to disability retirement pursuant to any retirement plan in which the 
employee is enrolled. If the Board has already posted a notice or 
announcement seeking applications for a specific vacant position at the 
time the Board has determined that the nonprobationary employee is 
unable to perform the essential functions of his or her position even 
with reasonable accommodation, then the Board does not have an 
obligation under this section to offer to reassign the individual to 
that position, but the Board shall consider the individual on an equal 
basis with those who applied for the position.
    (g) Exclusion from definition of ``individual with a disability''--
(1) Illegal use of drugs. (i) The term ``individual with

[[Page 754]]

a disability'' shall not include an individual who is currently engaging 
in the illegal use of drugs, when the Board acts on the basis of such 
use. The term ``drug'' means a controlled substance, as defined in 
Schedules I through V of Section 202 of the Controlled Substances Act 
(21 U.S.C. 812). The term ``illegal use of drugs'' means the use of 
drugs, the possession or distribution of which is unlawful under the 
Controlled Substances Act, but does not include the use of a drug taken 
under supervision by a licensed health care professional, or other uses 
authorized by the Controlled Substances Act or other provisions of 
federal law. This exclusion, however, does not exclude an individual 
with a disability who:
    (A) Has successfully completed a supervised drug rehabilitation 
program and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully and is no longer engaging in 
such use;
    (B) Is participating in a supervised rehabilitation program and is 
no longer engaging in such use; or
    (C) Is erroneously regarded as engaging in such use, but is not 
engaging in such use.
    (ii) Except that the Board may adopt and administer reasonable 
policies or procedures, including but not limited to drug testing, 
designed to ensure that an individual described in paragraphs (g)(1)(i) 
(A) and (B) of this section is no longer engaging in the illegal use of 
drugs.
    (2) Alcoholism. The term ``individual with a disability'' does not 
include an employee who is an alcoholic whose current use of alcohol 
prevents the employee from performing the duties of his or her job, or 
whose employment by reason of such current alcohol use, would constitute 
a direct threat to the property or safety of others. In this regard, 
alcoholics shall meet the same performance and conduct standards to 
which all other Board employees must satisfy, even if an unsatisfactory 
performance is related to the alcoholism of the employee.
    (3) Infectious and communicable diseases. If an individual with a 
disability has one of the listed diseases as determined by the Secretary 
of Health and Human Services under the Americans with Disabilities Act 
(42 U.S.C. 12113(d)(1)) and works in or applies for a position at the 
Board in food handling, the Board will seek reasonable accommodation 
under paragraph (b) of this section to eliminate the risk of 
transmitting the disease through the handling of food. If the individual 
with a disability is a nonprobationary employee and a reasonable 
accommodation cannot be made, the provisions contained in paragraph (f) 
of this section shall apply.



Sec. 268.304  Employment of noncitizens.

    (a) Definitions. The definitions contained in this paragraph (a) 
shall apply only to this section.
    (1) Intending citizen means a citizen or national of the United 
States, or a noncitizen who:
    (i) Is a protected individual as defined in 8 U.S.C. 1324b(a)(3); 
and
    (ii) Has evidenced an intention to become a United States citizen.
    (2) Noncitizen means any person who is not a citizen of the United 
States.
    (3) Sensitive information means:
    (i) (A) Information that is classified for national security 
purposes under Executive Order No. 12356 (3 CFR, 1982 Comp., p. 166), 
including any amendments or superseding orders that the President of the 
United States may issue from time to time;
    (B) Information that consists of confidential supervisory 
information of the Board, as defined in 12 CFR 261.2(b); or
    (C) Information the disclosure or premature disclosure of which to 
unauthorized persons may be reasonably likely to impair the formulation 
or implementation of monetary policy, or cause unnecessary or 
unwarranted disturbances in securities or other financial markets, such 
that access to such information must be limited to persons who are loyal 
to the United States.
    (ii) For purposes of paragraph (a)(3)(i)(C) of this section, 
information may not be deemed sensitive information merely because it 
would be exempt from disclosure under the Freedom of Information Act (5 
U.S.C. 552) but sensitive information must be information the 
unauthorized disclosure or premature disclosure of which may

[[Page 755]]

be reasonably likely to impair important functions or operations of the 
Board.
    (4) Sensitive position means any position of employment in which the 
employee will be required to have access to sensitive information.
    (b) Prohibitions--(1) Unauthorized aliens. The Board shall not hire 
any person unless that person is able to satisfy the requirements of 
Section 101 of the Immigration Reform and Control Act of 1986.
    (2) Employment in sensitive positions. The Board shall not hire any 
person to a sensitive position unless such person is a citizen of the 
United States or, if a noncitizen, is an intending citizen.
    (3) Preference. Consistent with the Immigration Reform and Control 
Act of 1986, and other applicable law, applicants for employment at the 
Board who are citizens of the United States shall be preferred over 
equally qualified applicants who are not United States citizens.
    (c) Exception. The prohibition of paragraph (b)(2) of this section 
does not apply to hiring for positions for which a security clearance is 
required under Executive Order No. 10450, including any subsequent 
amendments or superseding orders that the President of the United States 
may issue from time to time, where the noncitizen either has or can 
obtain the necessary security clearance. Any offer of employment 
authorized by this paragraph (c) shall be contingent upon receipt of the 
required security clearance in the manner prescribed by law.
    (d) Applicability. This section applies to employment in all 
positions at the Board and to employment by Federal Reserve Banks of 
examiners who must be appointed, or selected and approved by the Board 
pursuant to 12 U.S.C. 325, 326, 338, or 625.

[59 FR 16098, Apr. 6, 1994, as amended at 61 FR 252, Jan. 4, 1996]



Sec. 268.305  Class complaints.

    (a) Pre-complaint processing. An employee or applicant for 
employment who wishes to file a class complaint must seek counseling and 
be counseled in accordance with the procedures under Sec. 268.204 of 
this part.
    (b) Filing and presentation of a class complaint. (1) A class 
complaint must be signed by the agent of the class or representative, 
and must identify the personnel policy or practice adversely affecting 
the class as well as the specific action or matter affecting the agent 
of the class.
    (2) The complaint must be filed with the Board not later than 15 
calendar days after the agent of the class receives a notice from the 
EEO Counselor of the right to file a class complaint.
    (3) The complaint shall be processed promptly by the Board, and the 
parties shall cooperate and shall proceed at all times without undue 
delay.
    (c) Acceptance or dismissal. (1) Within 30 days of the Board's 
receipt of a class complaint, the Board shall designate a representative 
who shall monitor the class complaint on behalf of the Board and who 
shall be one of the individuals referenced in Sec. 268.202(f)(3) of this 
part, and forward the class complaint, along with a copy of the EEO 
Counselor's report and any other information pertaining to timeliness or 
other relevant circumstances related to the class complaint, to the 
Commission's Office of Federal Operations. The Commission shall assign 
the class complaint to an administrative judge or complaints examiner 
who shall, if required, have a proper security clearance. The 
administrative judge may require the agent of the class or the Board to 
submit additional information relevant to the complaint.
    (2) The administrative judge may recommend that the Board dismiss 
the class complaint, or any portion, for any of the reasons listed in 
Sec. 268.206 of this part, or because it does not meet the prerequisites 
of a class complaint under Sec. 268.102(g) of this part.
    (3) If an allegation of discrimination in the class complaint is not 
included in the EEO Counselor's report, the administrative judge shall 
afford the agent of the class 15 calendar days to state whether the 
matter was discussed with the EEO Counselor and, if not, explain why it 
was not discussed. If the explanation is not satisfactory, the 
administrative judge shall recommend that the Board dismiss the 
allegation

[[Page 756]]

under Sec. 268.206 of this part. If the explanation is satisfactory, the 
administrative judge shall refer the allegation to the Board for further 
counseling by an EEO Counselor with the agent of the class. After 
counseling, the allegation shall be consolidated with the class 
complaint.
    (4) If an allegation of discrimination in the class complaint lacks 
specificity and detail, the administrative judge shall afford the agent 
of the class 15 calendar days to provide specific and detailed 
information. The administrative judge shall recommend that the Board 
dismiss the class complaint if the agent of the class fails to provide 
such information within the specified time period. If the information 
provided contains new allegations outside the scope of the complaint, 
the administrative judge shall advise the agent of the class how to 
proceed on an individual or class basis concerning these allegations.
    (5) The administrative judge shall recommend that the Board extend 
the time limits for filing a class complaint and for consulting with an 
EEO Counselor in accordance with the time limit extension provisions 
contained in Secs. 268.204(a)(2) and 268.604 of this part.
    (6) When appropriate, the administrative judge may recommend that a 
class be divided into subclasses and that each subclass be treated as a 
class, and the provisions of this section shall then be construed and 
applied accordingly.
    (7) The administrative judge's written recommendation to the Board 
on whether to accept or dismiss a class complaint and the complaint file 
shall be transmitted to the Board, and notification of that transmittal 
shall be sent to the agent of the class. The administrative judge's 
recommendation to accept or dismiss shall become the Board's decision 
unless the Board accepts, rejects or modifies the recommended decision 
within 30 days of the receipt of the recommended decision and complaint 
file pursuant to Sec. 268.209 of this part. The Board shall notify the 
agent of the class by certified mail, return receipt requested, and the 
administrative judge of its decision to accept or dismiss a class 
complaint. At the same time, the Board shall forward to the agent of the 
class copies of the administrative judge's recommendation and the 
complaint file. The dismissal of a class complaint shall inform the 
agent of the class either that the class complaint is being filed on 
that date as an individual complaint of discrimination and will be 
processed under subpart B of this part, or that the class complaint is 
also dismissed as an individual complaint in accordance with 
Sec. 268.206 of this part. In addition, it shall inform the agent of the 
class of the right to file a request for review of the dismissal of the 
class complaint with the Commission pursuant to Sec. 268.401 of this 
part, or to file a civil action. A copy of EEOC Form 573, notice of 
Appeal/Petition, shall be attached to the Board's decision to dismiss a 
class complaint pursuant to Sec. 268.209(b)(4) of this part.
    (d) Notification. (1) Within 15 calendar days of accepting a class 
complaint, the Board shall use reasonable means, such as delivery, 
mailing to last known address or distribution, to notify all class 
members of the acceptance of the class complaint.
    (2) Such notice shall contain:
    (i) The date of acceptance of the class complaint by the Board;
    (ii) A description of the issues accepted as part of the class 
complaint;
    (iii) An explanation of the binding nature of the Board's dismissal, 
final decision or resolution of the class complaint on class members; 
and
    (iv) The name, address and telephone number of the agent of the 
class or, if represented, the representative.
    (e) Obtaining evidence concerning the complaint. (1) Upon the 
acceptance of a class complaint by the Board, the administrative judge 
shall notify the agent of the class and the Board's representative of 
the time period that will be allowed both parties to prepare their case. 
This time period will include at least 60 days and may be extended by 
the administrative judge upon the request of either party. Both parties 
are entitled to reasonable development of evidence on matters relevant 
to the issues raised in the class complaint. Evidence may be developed 
through interrogatories, depositions, and requests for admissions, 
stipulations or production of documents. It shall be grounds for 
objection to producing evidence

[[Page 757]]

that the information sought by either party is irrelevant, 
overburdensome, repetitious, privileged, or that production would be 
unlawful.
    (2) If mutual cooperation fails, either party may request the 
administrative judge to rule on a request to develop evidence. If a 
party fails without good cause shown to respond fully and in timely 
fashion to a request made or approved by the administrative judge for 
documents, records, comparative data, statistics or affidavits, and the 
information is solely in the control of one party, such failure may, in 
appropriate circumstances, cause the administrative judge:
    (i) To draw an adverse inference that the requested information 
would have reflected unfavorably on the party refusing to provide the 
requested information;
    (ii) To consider the matters to which the requested information 
pertains to be established in favor of the opposing party;
    (iii) To exclude other evidence offered by the party failing to 
produce the requested information;
    (iv) To recommend that a decision be entered in favor of the 
opposing party; or
    (v) To take such other actions as the administrative judge deems 
appropriate.
    (3) During the period for development of evidence, the 
administrative judge may, in his or her discretion, direct that an 
investigation of facts relevant to the class complaint or any portion be 
conducted.
    (4) Both parties shall furnish to the administrative judge copies of 
all materials that they wish to be examined and such other material as 
may be requested.
    (f) Opportunity for resolution of the class complaint. (1) The 
administrative judge shall furnish the agent of the class and the 
Board's representative a copy of all materials obtained concerning the 
class complaint and provide opportunity for the agent of the class to 
discuss the materials with the Board's representative and to attempt 
resolution of the class complaint.
    (2) The class complaint may be resolved by agreement of the Board 
and the agent of the class at any time as long as the agreement is fair 
and reasonable.
    (3) If the class complaint is resolved, the terms of the resolution 
shall be reduced to writing and signed by the agent of the class and the 
Board.
    (4) Notice of the agreement of resolution shall be given to all 
class members in the same manner as notification of the acceptance of 
the class complaint and shall state the relief, if any, to be granted by 
the Board. An agreement of resolution shall bind all members of the 
class. Within 30 days of the date of the notice of the agreement of 
resolution, any member of the class may petition the Commission to 
vacate the agreement of resolution because it benefits only the agent of 
the class or is otherwise not fair and reasonable. Such a petition will 
be processed in accordance with paragraph (c) of this section and if the 
administrative judge finds that the agreement of resolution is not fair 
and reasonable, he or she shall recommend that the agreement of 
resolution be vacated and that the original agent of the class be 
replaced by the petitioner or some other class member who is eligible to 
be the agent of the class during further processing of the class 
complaint. The Board may determine, with respect to the petition, that 
the agreement of resolution is not fair and reasonable, which vacates 
any agreement between the former agent of the class and the Board. The 
Board's decision to vacate the agreement of resolution shall be 
communicated to the former agent of the class and to the petitioner, and 
shall inform them of their right to file a request for review with the 
Commission under Sec. 268.401 of this part. A copy of EEOC Form 573, 
notice of Appeal/Petition, shall be attached to the Board's decision 
pursuant to Sec. 268.209(b)(5) of this part.
    (g) Hearing. On expiration of the period allowed for preparation of 
the case, the administrative judge shall set a date for a hearing. The 
hearing shall be conducted in accordance with Secs. 268.208(a) through 
(f) of this part.
    (h) Report of findings and recommendations. (1) The administrative 
judge shall transmit to the Board a report of findings and 
recommendations on the class complaint, including a recommended 
decision, systemic relief for

[[Page 758]]

the class and any individual relief, where appropriate, with regard to 
the personnel policy or practice that gave rise to the class complaint.
    (2) If the administrative judge finds no class relief appropriate, 
he or she shall determine if a finding of individual discrimination is 
warranted and, if so, shall recommend appropriate relief.
    (3) The administrative judge shall notify the Board of the date on 
which the report of findings and recommendations was forwarded to the 
Board.
    (i) Board decision. (1) Within 60 days of receipt of the report of 
findings and recommendations issued under Sec. 268.305(h) of this part, 
the Board shall issue a final decision pursuant to Sec. 268.209 of this 
part, which shall accept, reject, or modify the findings and 
recommendations of the administrative judge.
    (2) The final decision of the Board shall be in writing and shall be 
transmitted to the agent of the class by certified mail, return receipt 
requested, along with a copy of the report of findings and 
recommendations of the administrative judge.
    (3) When the Board's final decision is to reject or modify the 
findings and recommendations of the administrative judge, the Board's 
final decision shall contain specific reasons for the Board's final 
decision.
    (4) If the Board has not issued a final decision within 60 days of 
its receipt of the administrative judge's report of findings and 
recommendations, those findings and recommendations of the 
administrative judge shall become the Board's final decision. The Board 
shall transmit the final decision to the agent of the class within 5 
calendar days of the expiration of the 60-day period.
    (5) The final decision of the Board shall require any relief 
authorized by law and determined to be necessary or desirable to resolve 
the issue of discrimination.
    (6) The final decision of the Board shall, subject to subpart E of 
this part, be binding on all members of the class and the Board.
    (7) The final decision shall inform the class agent of the right to 
seek review by the Commission, or to file a civil action, in accordance 
with subpart E of this part, and of the applicable time limits.
    (j) Notification of decision. The Board shall notify class members 
of the Board's final decision and relief awarded, if any, through the 
same media employed to give notice of the existence of the class 
complaint. The notice, where appropriate, shall include information 
concerning the rights of class members to seek individual relief, and of 
the procedures to be followed. Notice shall be given by the Board within 
10 calendar days of the transmittal of the final decision to the agent 
of the class.
    (k) Relief for individual class members. (1) When the Board finds 
class discrimination, the Board shall eliminate or modify the personnel 
policy or practice out of which the complaint arose and provide 
individual relief, including an award of attorney's fees and costs, to 
the agent of the class in accordance with Sec. 268.501(e) of this part.
    (2) When class-wide discrimination is not found, but it is found 
that the agent of the class is a victim of discrimination, Sec. 268.501 
of this part shall apply. The Board shall also, within 60 days of the 
issuance of its final decision finding no class-wide discrimination, 
issue the acknowledgement of receipt of an individual complaint as 
required by Sec. 268.205(d) of this part and process in accordance with 
the provisions of subpart B of this part, each individual complaint that 
was subsumed into the class complaint.
    (3) When class-wide discrimination is found in a final decision of 
the Board, and a class member believes that he or she is entitled to 
individual relief, the class member may file a written claim with the 
Board's EEO Programs Director within 30 days of receipt of notification 
by the Board of its final decision. The claim must include a specific, 
detailed showing that the claimant is a class member who was affected by 
a personnel action or matter resulting from the discriminatory personnel 
policy or practice, and that this discriminatory action took place 
within the period of time for which the Board found class-wide 
discrimination in its final decision. The period of time for which the 
Board finds class-wide discrimination shall begin not more than 45 days 
prior to the initial contact by the

[[Page 759]]

agent of the class with the EEO Counselor and shall end not later than 
the date when the Board eliminates the personnel policy or practice 
found to be discriminatory in the Board's final decision. The Board 
shall issue a final decision on each such claim within 90 days of 
filing. Such decision must include a notice of the right to file a 
request for review with the Commission or a civil action in accordance 
with subpart E of this part and the applicable time limits. A copy of 
EEOC Form 573, notice of Appeal/Petition, shall be attached to the 
Board's decision pursuant to Sec. 268.209(b)(7) of this part.

[59 FR 16098, Apr. 6, 1996, as amended at 61 FR 13079, Mar. 26, 1996]



    Subpart D--Review by the Equal Employment Opportunity Commission



Sec. 268.401   Review by the Equal Employment Opportunity Commission.

    (a) An individual complainant may file a request for review with the 
Commission of a final decision issued by the Board under Sec. 268.209 of 
this part, or a dismissal by the Board of all or a portion of an 
individual complaint under Sec. 268.206 of this part.
    (b) An agent of the class may file a request for review with the 
Commission of a dismissal of all or a portion of a class complaint 
rendered by the Board under Sec. 268.305(c) of this part, or a final 
decision of the Board accepting or rejecting all or a portion of a 
report of findings and recommendations of an administrative judge with 
regard to a class complaint pursuant to Sec. 268.305(i) of this part. A 
class member may file a request for review with the Commission of a 
final decision by the Board on a claim for individual relief under a 
class complaint pursuant to Sec. 268.305(k) of this part. Both an agent 
of the class and a class member may file a request for review with the 
Commission of a final decision of the Board on a petition pursuant to 
Sec. 268.305(f)(4) of this part.
    (c) A complainant, agent of the class or individual class claimant 
may file a request for review with the Commission of the Board's alleged 
noncompliance with a settlement agreement or final decision in 
accordance with Sec. 268.504 of this part.



Sec. 268.402  Time limits for review by the Equal Employment Opportunity Commission.

    (a) Any dismissal of a complaint or a portion of a complaint, or any 
final decision of the Board, as set forth in paragraphs (b)(1) through 
(7) of Sec. 268.209 of this part, may be reviewed by the Commission if a 
request for review is filed with the Commission within 30 days of the 
complainant's receipt of the dismissal or final decision. In the case of 
class complaints, any final decision of the Board received by an agent 
of the class, petitioner or any individual class claimant may be 
reviewed by the Commission if a request for review is filed with the 
Commission within 30 days of its receipt. Where a complainant has 
notified the EEO Programs Director of alleged noncompliance with a 
settlement agreement in accordance with Sec. 268.504 of this part, the 
complainant may file a request for review with the Commission within 35 
days after notification to the EEO Programs Director under 
Sec. 268.504(a) of this part of such noncompliance, but the complainant 
must file a request for review within 30 days of receipt of the Board's 
determination.
    (b) If the complainant is represented by an attorney of record, then 
the 30 day time period provided in paragraph (a) of this section within 
which to file a request for review shall be calculated from the receipt 
of the notification required under Sec. 268.504(a) of this part by the 
attorney. In all other instances, the time within which to file a 
request for review with the Commission shall be calculated from the 
receipt of the notification required under Sec. 268.504(a) of this part 
by the complainant.



Sec. 268.403  How to seek review.

    (a) The complainant must file a request for review with the 
Commission by sending EEOC Form 573, notice of Appeal/Petition, to the 
Director, Office of Federal Operations, Equal Employment Opportunity 
Commission, P.O. Box 19848, Washington, DC 20036, or by personal 
delivery or facsimile. The

[[Page 760]]

complainant should indicate what matters he or she is requesting the 
Commission to review.
    (b) The complainant shall furnish a copy of the request for review 
to the Board's EEO Programs Director at the same time that he or she 
files the request for review with the Commission. In or attached to the 
request for review by the Commission, the complainant must certify the 
date and method by which service was made on the Board.
    (c) If a complainant does not file a request for review with the 
Commission within the time limits of this subpart D, the request for 
review shall be untimely and shall be dismissed by the Commission.
    (d) Any statement or brief in support of the request for review must 
be submitted to the Director, Office of Federal Operations, Equal 
Employment Opportunity Commission, and to the Board within 30 days of 
the filing of the request for review. Following receipt of the request 
for review, and any brief in support of the request for review, the 
Director, Office of Federal Operations, Equal Employment Opportunity 
Commission, shall request the complaint file from the Board. The Board 
shall submit the complaint file and any Board statement or brief in 
opposition to the request for review to the Director, Office of Federal 
Operations, Equal Employment Opportunity Commission, within 30 days of 
receipt of the Commission's request for the complaint file. A copy of 
the Board's statement or brief shall be served on the complainant at the 
same time.



Sec. 268.404  Procedure on review.

    (a) The Commission's Office of Federal Operations shall review the 
complaint file and all written statements and briefs from either party. 
The Commission may supplement the record by an exchange of letters or 
memoranda, investigation, remand to the Board or other procedures.
    (b) If the Commission's Office of Federal Operations requests 
information from one or both of the parties to supplement the record, 
each party providing information shall send a copy of the information 
submitted to the Commission to the other party.



Sec. 268.405  Decisions on review.

    (a) The Commission's Office of Federal Operations shall issue a 
written decision (the EEOC decision) setting forth its reasons for the 
decision. The Commission shall dismiss requests for review in accordance 
with Secs. 268.206, 268.403(c) and 268.507 of this part. The EEOC 
decision shall be based on the preponderance of the evidence. If the 
EEOC decision contains a finding of discrimination, appropriate 
remedy(ies) shall be included and, where appropriate, the entitlement to 
interest, attorney's fees or costs shall be indicated. The EEOC decision 
shall reflect the date of its issuance, inform the complainant of his or 
her civil action rights, and be transmitted to the complainant and to 
the Board by certified mail, return receipt requested.
    (b) The EEOC decision issued under paragraph (a) of this section is 
final, subject to paragraph (c) of this section, within the meaning of 
Sec. 268.406(d) of this part unless:
    (1) Either party files a timely request for reconsideration pursuant 
to Sec. 268.406 of this part; or
    (2) The Commission on its own motion reconsiders the case.
    (c) The Board, within 30 days of receiving the EEOC decision, shall 
issue a final decision pursuant to Sec. 268.209 of this part based upon 
the EEOC decision.



Sec. 268.406  Reconsideration.

    (a) Within a reasonable period of time, the Commission may, in its 
discretion, reconsider an EEOC decision issued under Sec. 268.405(a) of 
this part, notwithstanding any other provisions of this part.
    (b) A party may request reconsideration of an EEOC decision issued 
under Sec. 268.405(a) of this part provided that such request is made 
within 30 days of receipt of an EEOC decision or within 20 days of 
receipt of another party's timely request for reconsideration. Such 
request, along with any supporting statement or brief, shall be 
submitted to the Commission's Office of Review and Appeals, and to all 
parties with proof of such submission. All other parties shall have 20 
days from the date of service in which to submit

[[Page 761]]

to all other parties, with proof of submission, any statement or brief 
in opposition to the request.
    (c) The request for reconsideration or the statement or brief in 
support of the request shall contain arguments or evidence which tend to 
establish that:
    (1) New and material evidence is available that was not readily 
available when the EEOC decision was issued;
    (2) The EEOC decision involved an erroneous interpretation of law, 
regulation or material fact, or misapplication of established policy; or
    (3) The EEOC decision is of such exceptional nature as to have 
substantial precedential implications.
    (d) A decision on a request for reconsideration by either party is 
final and there shall be no further right by either party to request 
reconsideration of an EEOC decision.



           Subpart E--Remedies, Enforcement and Civil Actions



Sec. 268.501  Remedies and relief.

    (a) General procedures. When the Board finds discrimination when 
issuing its final decision pursuant to Sec. 268.209 of this part, the 
Board shall consider the following elements in providing full relief to 
complainants:
    (1) Notification to all employees of the Board of their right to be 
free of unlawful discrimination and assurance that the particular types 
of discrimination found will not recur;
    (2) Commitment that corrective, curative or preventive action will 
be taken, or measures adopted, to ensure that violations of law and this 
part similar to those found unlawful will not recur;
    (3) An unconditional offer to each identified victim of 
discrimination of placement in the position the person would have 
occupied but for the discrimination suffered by that person, or a 
substantially equivalent position;
    (4) Payment to each identified victim of discrimination on a make 
whole basis for any loss of earnings the person may have suffered as a 
result of the discrimination; and
    (5) Commitment that the Board shall cease from engaging in the 
specific unlawful employment practice found in the case.
    (b) Relief for an applicant. (1) (i) When it is determined in a 
final decision that an applicant for employment has been discriminated 
against, the Board shall offer the applicant for employment the position 
that the applicant for employment would have occupied absent 
discrimination or, if justified by the circumstances, a substantially 
equivalent position unless clear and convincing evidence indicates that 
the applicant for employment would not have been selected even absent 
the discrimination. The offer to the applicant for employment shall be 
made in writing. The applicant for employment shall have 15 days from 
receipt of the offer within which to accept or decline the offer. 
Failure to accept the offer within the 15-day period will be considered 
a declination of the offer, unless the applicant for employment can show 
that circumstances beyond his or her control prevented a response within 
the time limit.
    (ii) If the offer is accepted, appointment shall be retroactive to 
the date the applicant for employment would have been hired. Back pay, 
computed in the manner prescribed in 5 CFR 550.805 shall be awarded from 
the date the applicant for employment would have entered on duty until 
the date the applicant for employment actually enters on duty unless 
clear and convincing evidence indicates that the applicant would not 
have been selected even absent discrimination. Interest on back pay 
shall be included in the back pay computation where sovereign immunity 
has been waived. An applicant for employment shall be deemed to have 
performed service at the Board during such period for all purposes 
except for meeting service requirements for completion of a required 
probationary period.
    (iii) If the offer of employment is declined, the Board shall award 
the applicant for employment a sum equal to the back pay he or she would 
have received, computed in the manner prescribed in 5 CFR 550.805 from 
the date he or she would have been appointed until the date the offer 
was declined, subject to the limitation of paragraph (b)(3) of this 
section. Interest on back

[[Page 762]]

pay shall be included in the back pay computation. The Board shall 
inform the applicant for employment, in its offer of employment, of the 
right to this award in the event the offer of employment is declined.
    (2) When it is determined in a final decision that discrimination 
existed at the time the applicant for employment was considered for 
employment but also by clear and convincing evidence that the applicant 
would not have been hired even absent discrimination, the Board shall 
nevertheless take all steps necessary to eliminate the discriminatory 
practice and ensure it does not recur.
    (3) Back pay under this paragraph (b) for complaints under Title VII 
or the Rehabilitation Act may not extend from a date earlier than two 
years prior to the date on which the complaint was initially filed by 
the applicant for employment.
    (c) Relief for an employee. When it is determined in a final 
decision that an employee of the Board was discriminated against, the 
Board shall provide relief, which shall include, but need not be limited 
to, one or more of the following actions:
    (1) Nondiscriminatory placement, with back pay computed in the 
manner prescribed in 5 CFR 550.805 unless clear and convincing evidence 
contained in the record demonstrates that the personnel action would 
have been taken even absent the discrimination. Interest on back pay 
shall be included in the back pay computation where sovereign immunity 
has been waived. The back pay liability under Title VII or the 
Rehabilitation Act is limited to the two years prior to the date the 
discrimination complaint was filed;
    (2) If clear and convincing evidence indicates that, although 
discrimination existed at the time the personnel action was taken, the 
personnel action would have been taken even absent discrimination, the 
Board shall nevertheless eliminate any discriminatory practice and 
ensure it does not recur;
    (3) Cancellation of an unwarranted personnel action and restoration 
of the employee;
    (4) Expunction from the Board's records of any adverse materials 
relating to the discriminatory practice; and
    (5) Full opportunity to participate in the employee benefit denied 
(e.g., training, preferential work assignments, overtime scheduling).
    (d) Mitigation of damages. The Board shall not decline to grant 
relief based upon failure to mitigate damages unless it has clear and 
convincing evidence that the employee or applicant for employment has 
failed to mitigate damages. The Board shall have the burden of proving 
by a preponderance of the evidence that the complainant has failed to 
mitigate his or her damages.
    (e) Attorney's fees or costs--(1) Awards of attorney's fees or 
costs. The provisions of this paragraph (e) relating to the award of 
attorney's fees or costs shall apply to allegations of discrimination 
prohibited by Title VII and the Rehabilitation Act. In a notice of final 
action or a decision, the employee or applicant for employment may be 
awarded reasonable attorney's fees or costs (including expert witness 
fees) incurred in the processing of the complaint. In this regard:
    (i) A finding of discrimination raises a presumption of entitlement 
to an award of attorney's fees;
    (ii) Attorney's fees are allowable only for the services of members 
of the Bar and law clerks, paralegals or law students under the 
supervision of members of the Bar, except that no award is allowable for 
the services of any employee of the Federal Government; and
    (iii) Attorney's fees shall be paid only for services performed 
after the filing of a written complaint and after the complainant has 
notified the Board that he or she is represented by an attorney, except 
that fees allowable for a reasonable period of time prior to the 
notification of representation for any services performed in reaching a 
determination to represent the complainant. Written submissions to the 
Board that are signed by the representative shall be deemed to 
constitute notice of representation.
    (2) Amount of awards. (i) When the attorney's fees or costs are 
awarded, the complainant's attorney shall submit a verified statement of 
costs and attorney's fees (including expert witness fees), as 
appropriate, to the Board within 30 days of receipt of the final 
decision, unless a request for review or

[[Page 763]]

reconsideration is filed. A statement of attorney's fees shall be 
accompanied by an affidavit executed by the attorney of record itemizing 
the attorney's charges for legal services and both the verified 
statement and the accompanying affidavit shall be made a part of the 
complaint file. The amount of attorney's fees or costs to be awarded the 
complainant shall be determined by agreement among the complainant, the 
complainant's representative and the Board. Such agreement shall 
immediately be reduced to writing.
    (ii) (A) If the complainant, the complainant's representative and 
the Board cannot reach an agreement on the amount of attorney's fees or 
costs within 20 days of the Board's receipt of the verified statement 
and accompanying affidavit, the Board shall issue a decision determining 
the amount of attorney's fees or costs due within 30 days of receipt of 
the statement and affidavit. The decision of the Board shall include the 
specific reasons for determining the amount of the award. The 
complainant or the complainant's representative may file a request for 
review with the Commission of the Board's decision, and the Board's 
notice to the complainant and his or her representative shall include 
EEOC Form 573, notice of Appeal/Petition.
    (B) The amount of attorney's fees shall be calculated in accordance 
with existing case law using the following standards: The starting point 
shall be the number of hours reasonably expended multiplied by a 
reasonable hourly rate. This amount may be reduced or increased in 
consideration of the following factors, although ordinarily many of 
these factors are subsumed within the calculation set forth in this 
paragraph (e)(2)(ii)(B): The time and labor required, the novelty and 
difficulty of the questions, the skill requisite to perform the legal 
service properly, the attorney's preclusion from other employment due to 
acceptance of the case, the customary fee, whether the fee is fixed or 
contingent, time limitations imposed by the client or the circumstances, 
the amount involved and the results obtained, the experience, 
reputation, and ability of the attorney, the undesirability of the case, 
the nature and length of the professional relationship with the client, 
and the awards in similar cases. Only in cases of exceptional success 
should any of these factors be used to enhance an award computed by the 
formula set forth in this paragraph (e)(2)(ii)(B).
    (C) The costs that may be awarded are those authorized by 28 U.S.C. 
1920 to include: Fees of the reporter for all or any of the stenographic 
transcript necessarily obtained for use in the case; fees and 
disbursements for printing and witnesses; and fees for exemplification 
and copies necessarily obtained for use in the case.
    (iii) Witness fees shall be awarded in accordance with the 
provisions of 28 U.S.C. 1821, except that no award shall be made for a 
federal employee who is in a duty status when made available as a 
witness.



Sec. 268.502  Compliance with EEOC decisions.

    (a) The relief ordered in an EEOC decision, if accepted pursuant to 
Sec. 268.209 of this part as a final decision, or not acted upon by the 
Board within the time periods of Sec. 268.209 of this part, shall be 
binding upon the Board. Failure to implement its final decision, or the 
EEOC decision in such circumstances, shall be grounds for the 
complainant to file a civil action under Secs. 268.505 and 268.506 of 
this part.
    (b) Notwithstanding paragraph (a) of this section, when the Board 
requests reconsideration, when the case involves an employee's removal, 
separation, or suspension continuing beyond the date of the request for 
reconsideration, and when the EEOC decision recommends retroactive 
restoration, the Board shall comply with the EEOC decision only to the 
extent of the temporary or conditional restoration of the employee to 
duty status in the position recommended by the Commission, pending the 
outcome of the Board's request for reconsideration.
    (1) Service under the temporary or conditional restoration 
provisions of this paragraph (b) shall be credited toward the completion 
of a probationary or trial period, or eligibility for a within-grade 
increase, if the EEOC decision is upheld.
    (2) The Board shall notify the Commission and the employee in 
writing,

[[Page 764]]

at the same time it requests reconsideration, that the relief it 
provides is temporary or conditional.
    (c) Relief shall be provided in full no later than 60 days after all 
administrative proceedings have ended.



Sec. 268.503  Enforcement of EEOC decisions.

    (a) Petition for enforcement. As set forth in this section, a 
complainant may petition the Commission for enforcement of an EEOC 
decision issued under the review process of this part. The petition 
shall be submitted to the Office of Federal Operations, Equal Employment 
Opportunity Commission. The petition shall specifically set forth the 
reasons that lead the complainant to believe that the Board is not 
complying with the EEOC decision.
    (b) Compliance. The Commission's Office of Federal Operations may 
take appropriate action to ascertain whether the Board should have 
adopted the EEOC decision pursuant to Sec. 268.209 of this part. If the 
Commission determines that the Board has failed to comply with the EEOC 
decision in full, the Commission may undertake the efforts set forth in 
paragraphs (c) and (d) of this section to obtain compliance by the 
Board.
    (c) Clarification. The Commission's Office of Federal Operations 
may, on its own motion or in response to the petition for enforcement or 
in connection with a timely request for reconsideration, issue a 
clarification of an EEOC decision. A clarification may not change the 
result of a prior EEOC decision or enlarge or diminish the relief 
contained in the EEOC decision, but it may further explain the meaning 
or intent of the EEOC decision. The Commission may also send a notice to 
the Board seeking an explanation why the Board failed to adopt the EEOC 
decision as its final decision under Sec. 268.209 of this part, and the 
Board shall respond to such request within 30 days of receipt of the 
notice addressing the issue raised by the Commission.
    (d) Notification to complainant of completion of administrative 
efforts. Where the Commission has determined that the Board has failed 
to adopt the EEOC decision as its final decision, the Commission may 
notify the complainant who has petitioned the Commission under paragraph 
(a) of this section of his or her right to file a civil action under 
Sec. 268.505 of this part for failure of the Board to adopt the EEOC 
decision as its final decision.



Sec. 268.504  Compliance with settlement agreements and final decisions.

    (a) Any settlement agreement knowingly and voluntarily agreed to by 
the Board and a complainant, reached at any stage of the complaint 
process, shall be binding on both parties. A final decision of the Board 
that has not been the subject of review by the Commission, or in a civil 
action, shall nonetheless be binding on the Board. If the complainant 
believes that the Board has failed to comply with the terms of a 
settlement agreement or a final decision, the complainant shall notify 
the EEO Programs Director, in writing, of the alleged noncompliance 
within 30 days of when the complainant knew or should have known of the 
alleged noncompliance. The complainant may request that the Board 
implement the terms of the settlement agreement or final decision or 
alteratively, that the complaint be reinstated for further processing 
from the point processing ceased.
    (b) The Board shall attempt to resolve the matter brought to the 
Board's attention by the complainant in paragraph (a) of this section, 
and respond to the complainant, in writing. If the Board has not 
responded to the complainant, in writing, or if the complainant is not 
satisfied with the Board's attempt to resolve the matter, the 
complainant may request the Commission to review whether the Board has 
complied with the terms of the settlement agreement or the final 
decision. The complainant may file such request for review 35 days after 
he or she has served the Board with the notice of allegations of 
noncompliance, but must file the request for review with the Commission 
within 30 days of his or her receipt of a Board's determination. The 
complainant must serve a copy of the request for review on the Board and 
the Board may submit a response to the Commission within 30 days of 
receiving notice of request for review.

[[Page 765]]

    (c) Prior to rendering its determination, the Commission may request 
that the parties submit whatever additional information or documentation 
they deem necessary, or it may direct that an investigation or hearing 
on the matter be conducted. If the Commission determines that the Board 
is not in compliance and the noncompliance is not attributable to acts 
or conduct of the complainant, it may order that the complaint be 
reinstated for further processing from the point processing ceased. 
Allegations that subsequent acts of discrimination violate a settlement 
agreement shall be processed as separate complaints under Secs. 268.205 
or 268.305 of this part, as appropriate, rather than under this section.



Sec. 268.505  Civil action: Title VII, Age Discrimination in Employment Act and Rehabilitation Act.

    A complainant who has filed an individual complaint, an agent of the 
class who has filed a class complaint or a claimant who has filed a 
claim for individual relief pursuant to a class complaint may file a 
civil action in an appropriate United States District Court alleging 
violations of Title VII, the ADEA or the Rehabilitation Act:
    (a) Within 90 days of receipt of the Board's final decision on an 
individual or class complaint, whether or not a request for review has 
been filed with the Commission;
    (b) After 180 days from the date of filing an individual or class 
complaint if a request for review by the Commission has not been filed 
and a final decision of the Board has not been issued;
    (c) Within 90 days of receipt of an EEOC decision; or
    (d) After 180 days from the date of filing a request for review with 
the Commission if an EEOC decision has not been issued by the 
Commission.



Sec. 268.506  Civil action: Equal Pay Act.

    A complainant may file a civil action under section 16(b) of the 
Fair Labor Standards Act (29 U.S.C. 216(b)) in a court of competent 
jurisdiction within two years or, if the violation is willful, three 
years of the date of the alleged violation of the Equal Pay Act 
regardless of whether he or she pursued any administrative complaint 
processing. Recovery of back wages under the Equal Pay Act is limited to 
two years prior to the date of filing suit, or to three years if the 
violation is deemed willful. Liquidated damages in an equal amount may 
also be awarded. The filing of a complaint or request for review with 
the Commission under this part shall not toll the time for filing a 
civil action.

[59 FR 16098, Apr. 6, 1996, as amended at 61 FR 13079, Mar. 26, 1996]



Sec. 268.507  Effect of filing a civil action.

    Filing a civil action under Secs. 268.505 or 268.506 of this part 
shall terminate the Commission's processing of any request for review. 
If a private suit is filed subsequent to the filing of a request for 
review, the parties shall notify the Commission of such filing in 
writing.



               Subpart F--Matters of General Applicability



Sec. 268.601  EEO group statistics.

    (a) The Board shall collect and maintain accurate employment 
information on the race, national origin, sex and disabilities of its 
employees.
    (b) Data on race, national origin and sex shall be collected by 
voluntary self-identification. If an employee does not voluntarily 
provide the requested information, the Board shall advise the employee 
of the importance of the data and of the Board's obligation to report 
it. If the employee still refuses to provide the information, the Board 
shall make a visual identification and inform the employee of the data 
it will be reporting. If the Board believes that information provided by 
an employee is inaccurate, the Board shall advise the employee that the 
purpose for which the data is being collected is solely statistical, of 
the need for accuracy, of the Board's recognition of the sensitivity of 
the information, and of the existence of procedures to prevent its 
unauthorized disclosure. If, thereafter, the employee declines to change 
the apparently inaccurate self identification, the Board shall accept 
it.
    (c) Subject to applicable law, the information collected under 
paragraph (b) of this section shall be disclosed

[[Page 766]]

only in the form of gross statistics. The Board will not collect or 
maintain any information on the race, national origin, or sex of 
individual employees except in accordance with applicable law and when 
an automated data processing system is used in accordance with standards 
and requirements prescribed by the Commission to insure individual 
privacy and the separation of that information from the employee's 
personnel record.
    (d) The Board's system shall incorporate the following controls:
    (1) Only those categories of race and national origin approved by 
the Commission shall be used; and
    (2) Only the specific procedures for the collection and maintenance 
of data that are prescribed or approved by the Commission shall be used.
    (e) The Board shall use the data only in studies and analyses that 
contribute affirmatively to achieving the objectives of the Board's 
equal employment opportunity program. The Board shall not establish 
quotas for the employment of persons on the basis of race, color, 
religion, sex, or national origin.
    (f) Data on disabilities shall also be collected by voluntary self-
identification. If an employee does not voluntarily provide the 
requested information, the Board shall advise the employee of the 
importance of the data and of the Board's obligation to report it. If an 
employee who has been appointed pursuant to the Board's affirmative 
action program for hiring individuals with a disability still refuses to 
provide the requested information, the Board shall identify the 
employee's disability based upon the records supporting the appointment. 
If any other employee still refuses to provide the requested information 
or provides information that the Board believes to be inaccurate, the 
Board shall report the employee's disability status as unknown.
    (g) The Board shall report to the Commission on employment by race, 
national origin, sex and disability in the form and at such times as the 
Board and Commission shall agree.



Sec. 268.602  Reports to the Equal Employment Opportunity Commission.

    (a) The Board shall report to the Commission information concerning 
pre-complaint counseling and the status, processing, and disposition of 
complaints under this part at such times and in such manner as the Board 
and Commission shall agree.
    (b) The Board shall advise the Commission whenever it is served with 
a federal court complaint based upon a complaint that is pending review 
at the Commission.
    (c) The Board shall prepare annually equal employment opportunity 
plans of actions, in the form requested by the Commission, and shall 
submit such plans for review and advice by the Commission. The plans of 
action shall include:
    (1) Provision for the establishment of training and education 
programs designed to provide maximum opportunity for employees to 
advance so as to perform at their highest potential;
    (2) Description of the qualifications, in terms of training and 
experience relating to equal employment opportunity, of the principal 
and operating officials concerned with administration of the Board's 
equal employment opportunity program; and
    (3) Description of the allocation of personnel and resources 
proposed by the Board to carry out its equal employment opportunity 
program.



Sec. 268.603  Voluntary settlement attempts.

    The Board shall make reasonable efforts to settle, voluntarily, 
complaints of discrimination as early as possible in, and throughout, 
the administrative processing of complaints, including the pre-complaint 
counseling stage. Any settlement reached shall be reduced to writing and 
shall be signed by both parties and shall identify the allegations 
resolved.



Sec. 268.604  Filing and computation of time.

    (a) All time periods in this part that are stated in terms of days 
are calendar days unless otherwise stated.
    (b) A document shall be deemed timely filed if it is delivered in 
person, or

[[Page 767]]

sent via U.S. mail and postmarked before the expiration of the 
applicable filing period; or, in the absence of a legible postmark, if 
it is received via U.S. mail within five days of the expiration of the 
applicable filing period.
    (c) The time limits in this part are subject to waiver, estoppel, 
and equitable tolling.
    (d) The first day counted shall be the day after the event from 
which the time period began to run and the last day of the period shall 
be included, unless it falls on a Saturday, Sunday, or Federal holiday, 
in which case the period shall be extended to include the next business 
day.



Sec. 268.605  Representation and official time.

    (a) At any stage in the processing of a complaint, including the 
counseling stage under Sec. 268.204 of this part, the complainant shall 
have the right to be accompanied, represented and advised by a 
representative of complainant's choice.
    (b) If the complainant is an employee of the Board, he or she shall 
have a reasonable amount of official time, if otherwise on duty, to 
prepare the complaint and to respond to Board and Commission requests 
for information. If the complainant is an employee of the Board and he 
or she designates another employee of the Board as his or her 
representative, the representative shall have a reasonable amount of 
official time, if otherwise on duty, to prepare the complaint and 
respond to Board and Commission requests for information. The Board is 
not obligated to change work schedules, incur overtime wages, or pay 
travel expenses to facilitate the choice of a specific representative or 
to allow the complainant and representative to confer. The complainant 
and the representative, if employed by the Board and otherwise in a pay 
status, shall be on official time, regardless of their tours of duty, 
when their presence is authorized or required by the Board or the 
Commission during the investigation, informal adjustment, or hearing on 
the complaint.
    (c) In cases where the representation of a complainant or the Board 
would conflict with the official or collateral duties of the 
representative, the Board may, after giving the representative an 
opportunity to respond, disqualify the representative.
    (d) Unless the complainant states otherwise in writing, after the 
Board has received written notice of the name, address and telephone 
number of a representative, all official correspondence shall be with 
the representative with copies to the complainant. When the complainant 
designates an attorney as representative, service of documents and 
decisions on the complaint shall be made on the attorney and not on the 
complainant, and time frames for receipt of materials by the complainant 
shall be computed from the time of receipt by the attorney. The 
complainant must serve all official correspondence on the designated 
representative of the Board.
    (e) The complainant shall at all times be responsible for proceeding 
with the complaint whether or not he or she has designated a 
representative.
    (f) Witnesses who are Board employees shall be in a duty status when 
their presence is authorized or required in connection with a complaint.



Sec. 268.606  Joint processing and consolidation of complaints.

    Complaints of discrimination filed by two or more complainants 
consisting of substantially similar allegations of discrimination or 
relating to the same matter, or two or more complaints of discrimination 
from the same complainant, may be consolidated by the Board for joint 
processing after appropriate notification to the parties. The date of 
the first filed complaint controls the applicable time frames under 
subpart B of this part.



  Subpart G--Prohibition Against Discrimination In Board Programs and 
          Activities Because of a Physical or Mental Disability



Sec. 268.701  Purpose and application.

    (a) Purpose. The purpose of this subpart G is to prohibit 
discrimination on the basis of a disability in programs or activities 
conducted by the Board.
    (b) Application. (1) This subpart G applies to all programs and 
activities

[[Page 768]]

conducted by the Board. Such programs and activities include:
    (i) Holding open meetings of the Board or other meetings or public 
hearings at the Board's office in Washington, DC;
    (ii) Responding to inquiries, filing complaints, or applying for 
employment at the Board's office;
    (iii) Making available the Board's library facilities; and
    (iv) Any other lawful interaction with the Board or its staff in any 
official matter with people who are not employees of the Board.
    (2) This subpart G does not apply to Federal Reserve Banks or to 
financial institutions or other companies supervised or regulated by the 
Board.



Sec. 268.702  Notice.

    The Board shall make available to employees, applicants for 
employment, participants, beneficiaries, and other interested persons 
information regarding the provisions of this subpart G and its 
applicability to the programs and activities conducted by the Board, and 
make this information available to them in such manner as the Board 
finds necessary to apprise such persons of the protections against 
discrimination assured them by this subpart G.



Sec. 268.703  Prohibition against discrimination.

    (a) No qualified individual with a disability shall, on the basis of 
a disability, be excluded from participation in, be denied the benefits 
of, or otherwise be subjected to discrimination in any program or 
activity conducted by the Board.
    (b)(1) The Board, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of a disability:
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that provide to others;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with a disability or to any class of individuals with a 
disability than is provided to others unless such action is necessary to 
provide qualified individuals with a disability with aid, benefits, or 
services that are as effective as those provided to others;
    (v) Deny a qualified individual with a disability the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with a disability in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Board may not deny a qualified individual with a disability 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The Board may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration, the purpose 
or effect of which would:
    (i) Subject qualified individuals with a disability to 
discrimination on the basis of a disability; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with a disability.
    (4) The Board may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would:
    (i) Exclude individuals with a disability from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the Board; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives or a program or activity with respect to individuals with a 
disability.

[[Page 769]]

    (5) The Board, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with a disability to 
discrimination on the basis of a disability.
    (6) The Board may not administer a licensing or certification 
program in a manner that subjects qualified individuals with a 
disability to discrimination on the basis of a disability, nor may the 
Board establish requirements for the programs and activities of 
licensees or certified entities that subject qualified individuals with 
a disability to discrimination on the basis of a disability. However, 
the programs and activities of entities that are licensed or certified 
by the Board are not, themselves, covered by this subpart G.
    (c) The exclusion of individuals who do not have a disability from 
the benefits of a program limited by Federal statute or Board order to 
individuals with a disability or the exclusion of a specific class of 
individuals with a disability from a program limited by Federal statute 
or Board order to a different class of individuals with a disability is 
not prohibited by this subpart G.
    (d) The Board shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with a disability.



Sec. 268.704  Employment.

    No qualified individual with a disability shall, on the basis of a 
disability, be subjected to discrimination in employment under any 
program or activity conducted by the Board. The requirements and 
procedures of Sec. 268.303 of this part shall apply to discrimination in 
employment under this subpart G.



Sec. 268.705  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 268.706 of this part, no 
qualified individual with a disability shall, because the Board's 
facilities are inaccessible to or unusable by individuals with a 
disability, be denied the benefits of, be excluded from participation 
in, or otherwise be subjected to discrimination under any program or 
activity conducted by the Board.



Sec. 268.706  Program accessibility: Existing facilities.

    (a) General. The Board shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with a disability. This 
paragraph (a) does not:
    (1) Necessarily require the Board to make each of its existing 
facilities accessible to and usable by individuals with a disability; or
    (2) Require the Board to take any action that it can determine, 
based on a written record, would result in a fundamental alteration in 
the nature of a program or activity or in undue financial and 
administrative burdens. In those circumstances where the Board believes 
that the proposed action would fundamentally alter the program or 
activity or would result in undue financial and administrative burdens, 
the Board shall establish a written record showing that compliance with 
this paragraph (a) would result in such alterations or burdens. The 
decision that compliance would result in such alterations or burdens 
shall be made by the Board of Governors or their designee after 
considering all Board resources available for use in the funding and 
operation of the conducted program or activity, and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action would result in such an alteration or such burdens, the Board 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that individuals with a 
disability receive the benefits and services of the program or activity.
    (b) Methods. The Board may comply with the requirements of this 
subpart G through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to individuals 
with a disability, home visits, delivery of service at alternate 
accessible sites, alteration of existing facilities and construction of 
new facilities, use of accessible rolling stock, or any other methods 
that result in making its programs or activities readily accessible to 
and usable by individuals with a disability. The

[[Page 770]]

Board is not required to make structural changes in existing facilities 
where other methods are effective in achieving compliance with this 
subpart G. In choosing among available methods for meeting the 
requirements of this subpart G, the Board gives priority to those 
methods that offer programs and activities to qualified individuals with 
a disability in the most integrated setting appropriate.
    (c) Time period for compliance. The Board shall comply with any 
obligations established under this subpart G as expeditiously as 
possible.



Sec. 268.707  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Board, shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with a disability.



Sec. 268.708  Communications.

    (a) The Board shall take appropriate steps to ensure effective 
communication with applicants for employment, participants, personnel of 
other Federal entities, and members of the public.
    (1) The Board shall furnish appropriate auxiliary aids where 
necessary to afford an individual with a disability an equal opportunity 
to participate in, and enjoy the benefits of, a program or activity 
conducted by the Board.
    (i) In determining what type of auxiliary aid is necessary, the 
Board shall give primary consideration to the requests of the individual 
with a disability.
    (ii) The Board need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the Board communicates with employees and others by 
telephone, telecommunication devices for deaf persons (TDD's) or equally 
effective telecommunication systems shall be used.
    (b) The Board shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Board shall provide signs at a primary entrance to any 
inaccessible facility, directing users to a location at which they can 
obtain information about accessible facilities. The international symbol 
for accessibility shall be used at each primary entrance of an 
accessible facility.
    (d) This subpart G does not require the Board to take any action 
that would result in a fundamental alteration in the nature of a program 
or activity or in undue financial and administrative burdens. In those 
circumstances where the Board believes that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, the Board shall establish a 
written record showing compliance with this subpart G would result in 
such alterations or burdens. The determination that compliance would 
result in such alterations or burdens shall be made by the Board of 
Governors or their designee after considering all Board resources 
available for use in the funding and operation of the conducted program 
or activity, and must be accompanied by a written statement of the 
reasons for reaching that conclusion. If an action required to comply 
with this subpart G would result in such an alteration or such burdens, 
the Board shall take any other action that would not result in such an 
alteration or such burdens but would nevertheless ensure that, to the 
maximum extent possible, individuals with a disability receive the 
benefits and services of the program or activity.



Sec. 268.709  Compliance procedures.

    (a) Applicability. Notwithstanding any other provision of this part, 
this section, except as provided in paragraph (b) of this section, 
rather than subpart B and Sec. 268.305 of this part, shall apply to all 
allegations of discrimination on the basis of a disability in programs 
or activities conducted by the Board.
    (b) Employment complaints. The Board shall process complaints 
alleging discrimination in employment on the basis of a disability in 
accordance with subpart B and Sec. 268.305 of this part.

[[Page 771]]

    (c) Responsible official. The EEO Programs Director shall be 
responsible for coordinating implementation of this section.
    (d) Filing the complaint--(1) Who may file. Any person who believes 
that he or she has been subjected to discrimination prohibited by this 
subpart G may, personally or by his or her authorized representative, 
file a complaint of discrimination with the EEO Programs Director.
    (2) Confidentiality. The EEO Programs Director shall not reveal the 
identity of any person submitting a complaint, except when authorized to 
do so in writing by the complainant, and except to the extent necessary 
to carry out the purposes of this subpart G, including the conduct of 
any investigation, hearing, or proceeding under this subpart G.
    (3) When to file. Complaints shall be filed within 180 days of the 
alleged act of discrimination. The EEO Programs Director may extend this 
time limit for good cause shown. For the purpose of determining when a 
complaint is timely filed under this paragraph (d), a complaint mailed 
to the Board shall be deemed filed on the date it is postmarked. Any 
other complaint shall be deemed filed on the date it is received by the 
Board.
    (4) How to file. Complaints may be delivered or mailed to the 
Administrative Governor, the Staff Director for Management, the EEO 
Programs Director, the Federal Women's Program Manager, the Hispanic 
Program Coordinator, or the Disabled Persons Program Coordinator. 
Complaints should be sent to the EEO Programs Director, Board of 
Governors of the Federal Reserve System, 20th and C Street NW., 
Washington, DC 20551. If any Board official other than the EEO Programs 
Director receives a complaint, he or she shall forward the complaint to 
the EEO Programs Director.
    (e) Acceptance of complaint. (1) The EEO Programs Director shall 
accept a complete complaint that is filed in accordance with paragraph 
(d) of this section and over which the Board has jurisdiction. The EEO 
Programs Director shall notify the complainant of receipt and acceptance 
of the complaint.
    (2) If the EEO Programs Director receives a complaint that is not 
complete, he or she shall notify the complainant, within 30 days of 
receipt of the incomplete complaint, that additional information is 
needed. If the complainant fails to complete the complaint within 30 
days of receipt of this notice, the EEO Programs Director shall dismiss 
the complaint without prejudice.
    (3) If the EEO Programs Director receives a complaint over which the 
Board does not have jurisdiction, the EEO Programs Director shall notify 
the complainant and shall make reasonable efforts to refer the complaint 
to the appropriate government entity.
    (f) lnvestigation/conciliation. (1) Within 180 days of the receipt 
of a complete complaint, the EEO Programs Director shall complete the 
investigation of the complaint, attempt informal resolution of the 
complaint, and if no informal resolution is achieved, the EEO Programs 
Director shall forward the investigative report to the Staff Director 
for Management.
    (2) The EEO Programs Director may request Board employees to 
cooperate in the investigation and attempted resolution of complaints. 
Employees who are requested by the EEO Programs Director to participate 
in any investigation under this section shall do so as part of their 
official duties and during the course of regular duty hours.
    (3) The EEO Programs Director shall furnish the complainant with a 
copy of the investigative report promptly after completion of the 
investigation and provide the complainant with an opportunity for 
informal resolution of the complaint.
    (4) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made a part of the complaint 
file, with a copy of the agreement provided to the complainant. The 
written agreement may include a finding on the issue of discrimination 
and shall describe any corrective action to which the complainant has 
agreed.
    (g) Letter of findings. (1) If an informal resolution of the 
complaint is not reached, the EEO Programs Director shall transmit the 
complaint file to the Staff Director for Management. The

[[Page 772]]

Staff Director for Management shall, within 180 days of the receipt of 
the complete complaint by the EEO Programs Director, notify the 
complainant of the results of the investigation in a letter sent by 
certified mail, return receipt requested, containing:
    (i) Findings of fact and conclusions of law;
    (ii) A description of a remedy for each violation found;
    (iii) A notice of right of the complainant to appeal the letter of 
findings under paragraph (k) of this section; and
    (iv) A notice of right of the complainant to request a hearing.
    (2) If the complainant does not file a notice of appeal or does not 
request a hearing within the times prescribed in paragraph (h)(1) and 
(j)(1) of this section, the EEO Programs Director shall certify that the 
letter of findings under this paragraph (g) is the final decision of the 
Board at the expiration of those times.
    (h) Filing an appeal. (1) Notice of appeal, with or without a 
request for hearing, shall be filed by the complainant with the EEO 
Programs Director within 30 days of receipt from the Staff Director for 
Management of the letter of findings required by paragraph (g) of this 
section.
    (2) If the complainant does not request a hearing, the EEO Programs 
Director shall notify the Board of Governors of the appeal by the 
complainant and that a decision must be made under paragraph (k) of this 
section.
    (i) Acceptance of appeal. The EEO Programs Director shall accept and 
process any timely appeal. A complainant may appeal to the 
Administrative Governor from a decision by the EEO Programs Director 
that an appeal is untimely. This appeal shall be filed within 15 
calendar days of receipt of the decision from the EEO Programs Director.
    (j) Hearing. (1) Notice of a request for a hearing, with or without 
a request for an appeal, shall be filed by the complainant with the EEO 
Programs Director within 30 days of receipt from the Staff Director for 
Management of the letter of findings required by paragraph (g) of this 
section. Upon a timely request for a hearing, the EEO Programs Director 
shall request that the Board of Governors, or its designee, appoint an 
administrative law judge to conduct the hearing. The administrative law 
judge shall issue a notice to the complainant and the Board specifying 
the date, time, and place of the scheduled hearing. The hearing shall be 
commenced no earlier than 15 calendar days after the notice is issued 
and no later than 60 days after the request for a hearing is filed, 
unless all parties agree to a different date.
    (2) The hearing, decision, and any administrative review thereof 
shall be conducted in conformity with 5 U.S.C. 554-557. The 
administrative law judge shall have the duty to conduct a fair hearing, 
to take all necessary actions to avoid delay, and to maintain order. He 
or she shall have all powers necessary to these ends, including (but not 
limited to) the power to:
    (i) Arrange and change the dates, times, and places of hearings and 
prehearing conferences and to issue notice thereof;
    (ii) Hold conferences to settle, simplify, or determine the issues 
in a hearing, or to consider other matters that may aid in the 
expeditious disposition of the hearing;
    (iii) Require parties to state their positions in writing with 
respect to the various issues in the hearing and to exchange such 
statements with all other parties;
    (iv) Examine witnesses and direct witnesses to testify;
    (v) Receive, rule on, exclude, or limit evidence;
    (vi) Rule on procedural items pending before him or her; and
    (vii) Take any action permitted to the administrative law judge as 
authorized by this subpart G or by the provisions of the Administrative 
Procedure Act (5 U.S.C. 554-557).
    (3) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this paragraph (j), but rules or principles 
designed to assure production of credible evidence and to subject 
testimony to cross-examination shall be applied by the administrative 
law judge wherever reasonably necessary. The administrative law judge 
may exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for

[[Page 773]]

the record shall be open to examination by the parties, and opportunity 
shall be given to refute facts and arguments advanced on either side of 
the issues. A transcript shall be made of the oral evidence except to 
the extent the substance thereof is stipulated for the record. All 
decisions shall be based upon the hearing record.
    (4) The costs and expenses for the conduct of a hearing shall be 
allocated as follows:
    (i) Employees of the Board shall, upon the request of the 
administrative law judge, be made available to participate in the 
hearing and shall be on official duty status for this purpose. They 
shall not receive witness fees.
    (ii) Employees of other Federal agencies called to testify at a 
hearing, at the request of the administrative law judge and with the 
approval of the employing agency, shall be on official duty status 
during any absence from normal duties caused by their testimony, and 
shall not receive witness fees.
    (iii) The fees and expenses of other persons called to testify at a 
hearing shall be paid by the party requesting their appearance.
    (iv) The administrative law judge may require the Board to pay 
travel expenses necessary for the complainant to attend the hearing.
    (v) The Board shall pay the required expenses and charges for the 
administrative law judge and court reporter.
    (vi) All other expenses shall be paid by the parties incurring them.
    (5) The administrative law judge shall submit in writing recommended 
findings of fact, conclusions of law, and remedies to the complainant 
and the EEO Programs Director within 30 days, after the receipt of the 
hearing transcripts, or within 30 days after the conclusion of the 
hearing if no transcripts are made. This time limit may be extended with 
the permission of the EEO Programs Director.
    (6) Within 15 calendar days after receipt of the recommended 
decision of the administrative law judge, the complainant may file 
exceptions to the recommended decision with the EEO Programs Director. 
On behalf of the Board, the EEO Programs Director may, within 15 
calendar days after receipt of the recommended decision of the 
administrative law judge, take exception to the recommended decision of 
the administrative law judge and shall notify the complainant in writing 
of the Board's exception. Thereafter, the complainant shall have 10 
calendar days to file reply exceptions with the EEO Programs Director. 
The EEO Programs Director shall retain copies of the exceptions and 
replies to the Board's exception for consideration by the Board. After 
the expiration of the time to reply, the recommended decision shall be 
ripe for a decision under paragraph (k) of this section.
    (k) Decision. (1) The EEO Programs Director shall notify the Board 
of Governors when a complaint is ripe for decision under this paragraph 
(k). At the request of any member of the Board of Governors made within 
3 business days of such notice, the Board of Governors shall make the 
decision on the complaint. If no such request is made, the 
Administrative Governor, or the Staff Director for Management if he or 
she is delegated the authority to do so under Sec. 268.103(a)(2) of this 
part, shall make the decision on the complaint. The decision shall be 
made based on information in the investigative record and, if a hearing 
is held, on the hearing record. The decision shall be made within 60 
days of the receipt by the EEO Programs Director of the notice of appeal 
and investigative record pursuant to paragraph (h)(1) of this section or 
60 days following the end of the period for filing reply exceptions set 
forth in paragraph (j)(6) of this section, whichever is applicable. If 
the decision-maker under this paragraph (k) determines that additional 
information is needed from any party, the decision-maker shall request 
the information and provide the other party or parties an opportunity to 
respond to that information. The decision-maker shall have 60 days from 
receipt of the additional information to render the decision on the 
appeal. The decision-maker shall transmit the decision by letter to all 
parties. The decision shall set forth the findings, any remedial actions 
required, and the reasons for the decision. If the decision is based on 
a hearing record, the decision-maker shall consider the recommended 
decision of

[[Page 774]]

the administrative law judge and render a final decision based on the 
entire record. The decision-maker may also remand the hearing record to 
the administrative law judge for a fuller development of the record.
    (2) The Board shall take any action required under the terms of the 
decision promptly. The decision-maker may require periodic compliance 
reports specifying:
    (i) The manner in which compliance with the provisions of the 
decision has been achieved;
    (ii) The reasons any action required by the final Board decision has 
not been taken; and
    (iii) The steps being taken to ensure full compliance.
    (3) The decision-maker may retain responsibility for resolving 
disputes that arise between parties over interpretation of the final 
Board decision, or for specific adjudicatory decisions arising out of 
implementation.



PART 269--POLICY ON LABOR RELATIONS FOR THE FEDERAL RESERVE BANKS--Table of Contents




Sec.
269.1  Definition of a labor organization.
269.2  Membership in a labor organization.
269.3  Recognition of a labor organization and its relationship to a 
          Federal Reserve Bank.
269.4  Determination of appropriate bargaining unit.
269.5  Elections.
269.6  Unfair labor practices.
269.7  Approval of agreement and required contents.
269.8  Grievance procedures.
269.9  Mediation of negotiation impasses.
269.10  Time for internal labor organization business, consultations and 
          negotiations.
269.11  Federal Reserve System Labor Relations Panel.
269.12  Amendment.

    Authority: Sec. 11, 38 Stat. 261; 12 U.S.C. 248.

    Source: 48 FR 32331, July 15, 1983, unless otherwise noted.



Sec. 269.1  Definition of a labor organization.

    When used in this part, the term labor organization means any lawful 
organization of any kind, or any employee representation group, which 
exists for the purpose, in whole or in part, of dealing with any Federal 
Reserve Bank concerning grievances, personnel policies and practices, or 
other matters affecting the working conditions of its employees, but the 
term shall not include any organization:
    (a) Which asserts the right to strike against the government of the 
United States, the Board of Governors of the Federal Reserve System, or 
any Federal Reserve Bank, or to assist or participate in any such 
strike, or which imposes a duty or obligation to conduct, assist or 
participate in any such strike; or
    (b) Which fails to agree to refrain from seeking or accepting 
support from any organization which employs coercive tactics affecting 
any Federal Reserve Bank's operations; or
    (c) Which advocates the overthrow of the constitutional form of the 
government of the United States; or
    (d) Which discriminates with regard to the terms or conditions of 
membership because of race, color, sex, creed, age or national origin.



Sec. 269.2  Membership in a labor organization.

    (a) Any employee of a Federal Reserve Bank (hereinafter referred to 
as ``Bank'') is free to join and assist any existing labor organization 
or to participate in the formation of a new labor organization, or to 
refrain from any such activities except that officers and their 
administrative or confidential assistants, managers and other 
supervisory personnel, secretaries to all such persons and all employees 
engaged in Bank personnel work shall not be represented by any labor 
organization.
    (b) The rights described in paragraph (a) of this section for 
employees do not extend to participation in the management of a labor 
organization, or acting as a representative of any such organization, 
where such participation or activity would conflict with law or the 
duties of an employee.
    (c) Notwithstanding anything stated in paragraph (a) of this 
section, professional employees of a Bank shall not be represented by a 
labor organization which represents other employees of the Bank unless a 
majority of the professional employees eligible to vote

[[Page 775]]

specifically elect to be represented by such labor organization. 
However, the professional employees of a Bank may, if they so choose, be 
represented by a separate labor organization of their own, or by no 
labor organization at all.
    (d) Notwithstanding anything stated in paragraph (a) of this 
section, the guards of a Bank shall not be members of a labor 
organization which represents other categories of employees of the Bank. 
However, the guards of a Bank may, if they so choose, be represented by 
a separate labor organization of their own, or by no labor organization 
at all.



Sec. 269.3  Recognition of a labor organization and its relationship to a Federal Reserve Bank.

    (a) Any labor organization shall be recognized as the exclusive 
bargaining representative of the employees in an appropriate unit of a 
Bank when that organization has been selected by the employees in said 
unit pursuant to the procedure set forth in Sec. 269.5. A unit may be 
established in a Bank on any basis which will ensure a clear and 
identifiable community of interest among the employees concerned, and 
will promote effective relationships and the efficiency of the Bank's 
operations, but no unit shall be established solely on the basis of the 
extent to which a labor organization or employees in the proposed unit 
may have sought organization.
    (b) When a labor organization has been recognized as the exclusive 
representative of employees in an appropriate unit, it shall be entitled 
to act for and to negotiate agreements in good faith covering all 
employees in the unit, and it shall be responsible for representing the 
interests of all such employees without discrimination and without 
regard to whether they are members of that labor organization or not, 
provided that nothing in this Policy shall prevent an employee from 
adjusting his or her grievance without the intervention of the 
recognized labor organization. The labor organization shall be given 
notice of the adjustment and a reasonable opportunity to object on the 
sole ground that it is in conflict with the terms of the collective 
bargaining agreement.
    (c) A Bank, through appropriate officials, shall have the obligation 
to meet at reasonable times with representatives of a recognized labor 
organization to negotiate, in good faith, with respect to personnel 
policies and practices affecting working conditions for employees, 
provided that they do not involve matters in any of the following areas:
    (1) The purposes and functions of the Bank; the compensation of and 
hours worked by employees; any classification system used to evaluate 
positions; the budget of the Bank; the retirement system; any insurance 
or other benefit plans; internal security operations; maintenance of the 
efficiency of Bank operations including the determination of work 
methods; the right to contract out; the determination as to manpower 
requirements; use of technology and organization of work; and action to 
meet emergency situations;
    (2) Management rights as to the direction of employees, including 
hiring, promotion, transfer, classification, assignment, layoffs, 
retention, suspension, demotion, discipline and discharge, provided that 
on matters involving the procedures to be followed by a Bank for the 
exercise of its rights under this subparagraph, a Bank shall, upon 
request, discuss such procedures with a recognized labor organization, 
but shall not be required to negotiate for an agreement as to them;
    (3) All Bank matters specifically governed by applicable laws or 
regulations.

The obligation under this paragraph to negotiate with regard to certain 
matters shall include the execution of a written contract incorporating 
any agreement reached, but does not compel either a Bank or a labor 
organization to agree to a particular proposal or to make any concession 
during such negotiations.
    (d) At the time it requests an election to be held, any labor 
organization seeking recognition shall submit to a Bank a roster of its 
officers and representatives, a copy of its constitution and bylaws, and 
a statement of its objectives.

[[Page 776]]

    (e) Subject to the provisions of Sec. 269.8, the exclusive 
recognition of a labor organization shall not preclude any employee, 
regardless of labor organization membership, from bringing matters of 
personal concern not governed by a collective bargaining agreement to 
the attention of appropriate officers, managers or supervisory personnel 
in accordance with applicable law, rule, regulation, or established Bank 
policy, or from choosing his or her own representative in such matters.



Sec. 269.4  Determination of appropriate bargaining unit.

    (a) If a labor organization asserts in writing to a Bank that it 
holds cards requesting a representation election signed by at least 
thirty percent (30%) of the employees in a unit which that organization 
considers to be an appropriate bargaining unit, the labor organization 
and the Bank shall each designate a representative who together shall 
request the American Arbitration Association (hereinafter referred to as 
``Association'') to submit to them from its National Panel of 
Professional Labor Arbitrators a list of seven (7) impartial, qualified 
professional arbitrators. The two designated representatives shall meet 
promptly and, by alternately striking names from the list, arrive at the 
remaining person who, together with the two representatives, shall 
constitute a Special Tribunal to rule on the labor organization's 
request for an election. The impartial arbitrator shall always act as 
the Chairperson of any Special Tribunal duly constituted under this 
section.
    (b) In the absence of an agreement between the labor organization 
and the Bank on the appropriate unit, the Tribunal shall investigate the 
facts, hold hearings if necessary, and issue a decision as to the 
appropriateness of the unit for the purposes of conducting a 
representation election for exclusive recognition and as to related 
issues submitted for consideration. The expenses for this proceeding, 
including the fees of the association and of the arbitrator, shall be 
borne equally by the labor organization and the Bank. If either the Bank 
or the labor organization should disagree with the Special Tribunal's 
decision, the party in disagreement may appeal within thirty (30) 
calendar days to the Federal Reserve System Labor Relations Panel 
referred to in Sec. 269.11, and the decision of the System Panel shall 
be final and binding on the parties.
    (c) If there is any dispute as to whether a labor organization holds 
cards signed by at least thirty percent (30%) of the employees in a unit 
claimed by a labor organization as appropriate or subsequently 
determined by the Special Tribunal as appropriate, the dispute shall be 
resolved by the Chairperson of the Special Tribunal, acting as a single 
impartial arbitrator. The expenses of such procedure, including the 
impartial arbitrator's fee, shall be borne equally by the labor 
organization and the Bank. The decision of the Chairperson of the 
Special Tribunal shall be final and binding and shall not be subject to 
appeal to the Federal Reserve System Labor Relations Panel.



Sec. 269.5  Elections.

    (a) Once there has been a final determination of the existence of an 
appropriate bargaining unit under the procedure in Sec. 269.4, and a 
showing by a labor organization that it has cards signed by at least 
thirty percent (30%) of the employees in such unit requesting a 
representation election, an election shall be ordered by the Special 
Tribunal. A labor organization shall be recognized as the exclusive 
bargaining representative of the unit if it is selected by a majority of 
the employees in the unit actually voting.
    (b) The election shall be held under the auspices of the Association 
and shall be subject to its election rules and regulations. However, if 
there should be any conflict between such rules and regulations and the 
provisions of this Policy, the latter shall prevail. The fees charged by 
the Association for its election service shall be borne equally by the 
labor organization and the Bank.
    (c) An election to determine whether a labor organization should 
continue as the exclusive bargaining representative of a particular unit 
shall be held when requested by a petition or other bona fide showing by 
at least thirty percent (30%) of the employees of that unit.

[[Page 777]]

Any dispute as to whether thirty percent (30%) of the employees 
requested such an election shall be resolved by the same procedure as 
that set forth in Sec. 269.4(b). The election shall be held under the 
auspices of the Association in the same manner described in paragraph 
(b) of this section. The recognition of a labor organization as the 
exclusive bargaining representative of a unit shall be revoked if a 
majority of the employees in the unit who actually vote signify approval 
of such revocation.
    (d) Only one election may be held in any unit in a twelve (12) month 
period to determine whether a labor organization should become, or 
continue to be recognized as, the exclusive representative of the 
employees in that unit.
    (e) Upon receipt of a request for an election from a labor 
organization under Sec. 269.4(a), it shall be incumbent on the Bank, 
labor organization and all others to refrain from any conduct, action or 
policy that interferes with or restrains employees from making a fair 
and free choice in selecting or rejecting a bargaining representative 
consistent with the right of the Bank, labor organization or employees 
to exercise privileges of free speech in the expression of any views, 
argument or opinion, or the dissemination thereof, whether in oral, 
written, printed, graphic or visual form.
    (f) The Special Tribunal shall hear and decide any post-election 
objections of a Bank or labor organization filed with it claiming that a 
violation of paragraph (e) of this section has improperly affected the 
outcome of the election. Such objections must be filed with the Special 
Tribunal no later than five (5) business days after the date of 
election. In the event of such violation by a Bank, labor organization 
or other individuals or organizations which the Special Tribunal finds 
sufficient to have prejudiced the outcome of an election, appropriate 
remedial action shall be taken in the form of setting aside the election 
results and ordering a new election, provided, however, that an appeal 
from the order of the Special Tribunal may be taken within thirty (30) 
calendar days to the Federal Reserve System Labor Relations Panel by 
either the affected Bank or labor organization. The ruling of the System 
Panel shall be final and binding. Neither the Special Tribunal nor the 
Federal Reserve System Labor Relations Panel shall have the authority to 
direct a Bank to recognize a labor organization as the exclusive 
collective bargaining representative without a valid election being held 
in which a majority of the employees actually voting have so designated 
such labor organization.
    (g) The Special Tribunal and the Federal Reserve System Labor 
Relations Panel will adhere to any rules and regulations promulgated by 
the Board of Governors for the administration of the provisions of 
paragraphs (e) and (f) of this section.



Sec. 269.6  Unfair labor practices.

    (a) It shall be an unfair labor practice for a Bank to: (1) 
Interfere with, restrain, or coerce employees in the exercise of the 
rights guaranteed in Sec. 269.2(a); (2) dominate or interfere with the 
formation or administration of any labor organization, or to contribute 
financial or other support to it; (3) encourage or discourage membership 
in any labor organization by discrimination in regard to hire or tenure 
of employment or any term or condition of employment; (4) refuse to 
bargain collectively with the representatives of its employees subject 
to the provisions of Sec. 269.3 (b) and (c).
    (b) It shall be an unfair labor practice for a labor organization, 
its agents or representatives to: (1) Restrain or coerce employees in 
the exercise of the rights guaranteed in Sec. 269.2(a); (2) cause or 
attempt to cause a Bank to Discriminate against an employee in violation 
of paragraph (a)(3) of this section; (3) refuse to bargain collectively 
with a Bank, provided the labor organization is the exclusive 
representative of a unit of employees.
    (c) Notwithstanding anything previously stated in this section, the 
expression of any view, argument or opinion, or the dissemination 
thereof, whether in oral, written, printed, graphic or visual form, 
shall not constitute or be evidence of an unfair labor practice, if such 
expression contains no threat of reprisal or force, or promise of 
benefit.

[[Page 778]]

    (d) The Federal Reserve System Labor Relations Panel will adhere to 
the rules and regulations promulgated by the Board of Governors for the 
prevention and remedy of the unfair labor practices listed herein.



Sec. 269.7  Approval of agreement and required contents.

    Any agreement entered into with a labor organization as the 
exclusive representative of employees in a unit must be approved by the 
President of the Bank or a designated officer representative. All 
agreements with labor organizations shall also be subject to the 
requirement that the administration of all matters covered by the 
agreement shall be governed by the provisions of applicable laws and 
Federal Reserve System rules and regulations, and the agreement shall at 
all times be applied subject to such laws and regulations.



Sec. 269.8  Grievance procedures.

    (a) Subject to the provisions of Sec. 269.3(b), an agreement entered 
into with a labor organization as the exclusive representative of 
employees in a unit may contain a grievance procedure, applicable only 
to employees in such unit and which shall be the exclusive means for a 
labor organization and/or an employee to obtain resolution of a 
grievance arising under such agreement.
    (b) Grievance procedures established by a labor agreement may also 
include provisions for arbitration of unresolved grievances by a 
tripartite panel under the Voluntary Labor Arbitration Rules of the 
Association with the impartial arbitrator selected by the Bank and labor 
organization representatives on the arbitration panel to be the 
Chairperson. In such event, arbitration shall extend only to grievances 
which involve the interpretation and application of specific provisions 
of a labor agreement and not to any other matters or to changes in or 
proposed changes in the agreement. Arbitration may only be invoked by 
labor organization on behalf of individual employees with their 
concurrence.



Sec. 269.9  Mediation of negotiation impasses.

    In the event of an impasse in negotiations between the parties for a 
collective bargaining agreement, either the labor organization or the 
Bank may request the appointment of a qualified neutral person as a 
mediator to assist the parties in attempting to resolve the impasse. The 
parties will meet promptly with the mediator, and all matters discussed, 
as well as any documents submitted, shall not be publicly divulged for 
any reason. The cost of the mediator shall be borne equally by the 
parties.



Sec. 269.10  Time for internal labor organization business, consultations and negotiations.

    Solicitation of memberships, dues or other internal labor 
organization business shall be conducted during the nonduty hours of the 
employees concerned. Officially requested or approved consultation 
between management executives and representatives of a labor 
organization shall, whenever practicable, be conducted on official time, 
but the President or a duly authorized officer of a Bank may require 
that negotiations with a labor organization be conducted during the 
nonduty hours of the Bank.



Sec. 269.11  Federal Reserve System Labor Relations Panel.

    There shall be established a Federal Reserve System Labor Relations 
Panel, which shall consist of three members: one member of the Board of 
Governors of the Federal Reserve System, who shall be Chairperson of the 
Panel, and two public members. Each member shall be selected by the 
Board of Governors; provided, however, that the public members shall not 
have any present or past affiliation with the Federal Reserve System. 
Initially, one of the two public members shall be appointed for a term 
of two years, and the other for a term of three years. Thereafter, each 
public member shall be appointed for a term of three years, except that 
in the case of an unexpired term of a former member, the successor shall 
be appointed to fill such unexpired term. Upon the expiration of their 
term of office, public members

[[Page 779]]

may continue to serve until their successors are appointed and have 
qualified. A public member may be removed by the Board only upon notice 
and hearing, and only for neglect of duty or malfeasance in office. The 
Panel shall be responsible for the duties assigned to it as set forth in 
this Policy.



Sec. 269.12  Amendment.

    This policy may be amended upon appropriate legal notice to all 
Federal Reserve Banks and labor organizations recognized, or seeking 
recognition, at any such Bank under this Policy. In no instance shall an 
amendment be applied retroactively.



PART 269a--DEFINITIONS--Table of Contents




Sec.
269a.1  Party.
269a.2  Party in interest.
269a.3  Intervenor.
269a.4  Investigator.
269a.5  Hearing officer.

    Authority: Sec. 11, 38 Stat. 261 (12 U.S.C. 248).

    Source: 35 FR 8919, June 10, 1970. Redesignated at 48 FR 32334, July 
15, 1983, unless otherwise noted.

    Editorial Note: For nomenclature changes to Part 269a, see 48 FR 
32334, July 15, 1983.



Sec. 269a.1   Party.

    The term Party means any person, employee, group of employees, labor 
organization, or bank as defined in Sec. 269.2 of this chapter (a) 
filing a charge, petition, application, or rquest pursuant to these 
rules and regulations, (b) named as a party in a charge, complaint, 
petition, application, or request, or (c) whose intervention has been 
permitted or directed by the investigator, the hearing officer, or the 
panel, as the case may be, but nothing shall be construed to prevent the 
panel, or any officer designated by it, from limiting any party's 
participation in the proceedings to the extent of his interest as 
determined by the investigator, hearing officer, or panel.



Sec. 269a.2   Party in interest.

    The term party in interest means any person, employee, group of 
employees, labor organization, or bank that will be or is directly 
affected by the resolution of any charge, complaint, petition, 
application, or request presented to or being considered by the panel or 
its designated officers. Any (a) labor organization (not a charging 
party nor a charged party) attempting to organize the employees of a 
bank or that is or was recently a party to a collective bargaining 
agreement with a bank named as a party in a charge, complaint, petition, 
application, or a request, or (b) bank (not a charging party nor a 
charged party) that acts as the employer of any person named in a 
charge, complaint, petition, or request shall be deemed to be also a 
party in interest and shall be entitled to notification and service of 
all relevant procedures and documents.



Sec. 269a.3   Intervenor.

    The term intervenor means the party in a proceeding whose 
intervention has been permitted or directed by the panel or its 
designated officer.



Sec. 269a.4   Investigator.

    The term investigator means the officer designated by the panel to 
investigate and determine whether or not a complainant has established a 
prima facie case, as defined in Sec. 292.210 of this subchapter.



Sec. 269a.5   Hearing officer.

    The term hearing officer means the officer designated by the panel 
to conduct hearings pursuant to Sec. 292.420 et seq. of this subchapter 
and whose duties and power are enumerated in Sec. 292.442 of this 
subchapter.



PART 269b--CHARGES OF UNFAIR LABOR PRACTICES--Table of Contents




           Charges of Violations of Sec. 269.6 (of the Policy)

Sec.
269b.110  Charges.
269b.111  Filing of charges.
269b.112  Contents of the charge.
269b.113  Withdrawal or settlement.
269b.120  Answer to a charge.
269b.121  Contents of answer.

                        Preliminary Investigation

269b.210  Referral to National Center for Dispute Settlement.

[[Page 780]]

269b.220  Priority; acceleration of proceedings.
269b.230  Assessment of costs; posting of bond.
269b.240  The investigation.

                 Appeal From the Center's Determination

269b.310  Appeal rights.
269b.320  Proceedings before the panel.

                           Formal Proceedings

269b.410  Notice of hearing.
269b.420  Designation of hearing officer.
269b.430  Contents of notice of hearing.
269b.440  Conduct of hearing.
269b.441  Rights of parties.
269b.442  Duties and powers of the hearing officer.
269b.443  Motions before or after a hearing.
269b.444  Objection to conduct of hearing; other motions during hearing.
269b.450  Submission of hearing officer's report to the panel.

    Panel Review of Hearing Officer's Report and Recommended Decision

269b.510  Review by panel.
269b.520  Exceptions to hearing officer's report.
269b.530  Briefs in support of the hearing officer's report.
269b.540  Action by the panel.

                               Compliance

269b.610  Procedures.
269b.620  Action by panel.

                              General Rules

269b.710  Rules to be liberally construed.
269b.720  Computation of time for filing papers.
269b.730  Number of copies; form.
269b.731  Signature.
269b.740  Service of pleading and other paper; statement of service.
269b.750  Requests for appearance of witnesses and production of 
          documents.

    Authority: Sec. 11, 38 Stat. 261 (12 U.S.C. 248).

    Source: 35 FR 8920, June 10, 1970. Redesignated at 48 FR 32334, July 
15, 1983, unless otherwise noted.

           Charges of Violations of Sec. 269.6 (of the Policy)



Sec. 269b.110   Charges.

    A charge that any bank or labor organization, or agents or 
representatives of a bank or labor organization, has engaged in or is 
engaging in any act prohibited under Sec. 269.6 of the policy or has 
failed to take any action required by Sec. 269.6 of the policy may be 
filed by any party in interest, or its representative, within 60 days 
after the alleged violations or within 60 days after the charging party 
has become or should have become aware of the alleged violation.



Sec. 269b.111   Filing of charges.

    Any charge pursuant to Sec. 269b.110 shall be in writing and signed. 
An original and three copies of such charge, together with one copy for 
each charged party named, shall be transmitted to the Secretary of the 
Federal Reserve System Labor Relations Panel, 20th Street and 
Constitution Avenue NW., Washington, DC 20551. Within 5 days after 
receipt of a properly filed charge that meets the formal requirements 
set forth in Sec. 269b.112, the Secretary will cause a copy of such 
charge to be served on each party against whom the charge is made and 
upon all other potential parties in interest.



Sec. 269b.112   Contents of the charge.

    A charge shall contain the following:
    (a) The full name, address, and telephone number of the person, 
bank, or labor organization making the charge (hereinafter referred to 
as the charging party) and of the person signing the charge who shall 
state also his relation to or his capacity with the complainant. Where 
discrimination is alleged, all known discriminatees shall be named;
    (b) The name, address, and telephone number of the bank or labor 
organization against whom the charge is made (hereinafter referred to as 
the respondent) and of any parties in interest;
    (c) A clear and concise statement of the facts constituting the 
alleged unfair labor practice, including the time and place of 
occurrence of the particular acts, and a statement of the portion or 
portions of the policy alleged to have been violated. A charge shall not 
incorporate by reference affidavits or other documents submitted in 
support of the charge;
    (d) A statement of the relief sought;
    (e) A statement of any other remedies invoked for the redress of the 
alleged violations of the policy and the results, if any, of their 
invocation. If the issue in such charge is subject to an established 
grievance procedure, the

[[Page 781]]

complainant must irrevocably elect, prior to the completion of the first 
applicable step of the grievance procedure, whether he will invoke the 
grievance procedure or whether he will invoke the unfair labor practice 
procedures of the panel. A charge which is withdrawn or rejected by the 
panel as defective prior to the institution of any formal proceedings by 
the panel shall not prejudice the filing of a grievance on the same 
matter, unless the parties otherwise so provide;
    (f) A declaration by the person signing the charge, that its 
contents are true and correct to the best of his knowledge and belief, 
such declaration to be subject to applicable provisions of the Federal 
Criminal Code (18 U.S.C. 1001).



Sec. 269b.113   Withdrawal or settlement.

    A charge may be withdrawn or settlement of the matter may be reached 
without consent of the panel at any time. In connection with any such 
settlement the parties in interest shall prepare and sign a settlement 
agreement which shall record that the settlement is mutually 
satisfactory, shall stipulate any occurrences which constituted unfair 
labor practices and shall set forth the terms of the settlement.



Sec. 269b.120   Answer to a charge.

    The respondent shall file an answer to the charge with the Secretary 
of the panel within 15 days after service of the charge. Upon 
application and for good cause shown, the panel may extend the time 
within which the answer shall be filed. One copy of the answer shall be 
served on each party with proof of service furnished to the Secretary, 
and the original, which shall be signed, and four copies shall be filed 
with the Secretary.



Sec. 269b.121   Contents of answer.

    The answer shall contain:
    (a) A specific admission or denial, and where appropriate, 
explanation thereof; or if the respondent is without knowledge of the 
allegation, he shall so state and such statement shall operate as a 
denial. Admissions or denials may be to all or part of an allegation but 
shall be responsive to the substance of the allegation;
    (b) A specified, detailed statement of any affirmative defense;
    (c) A clear and concise statement of the facts and matters of law 
relied upon constituting the grounds of defense.

Any allegation of the charge not denied in the answer may be deemed 
admitted and may be so found by the panel.

                        Preliminary Investigation



Sec. 269b.210   Referral to National Center for Dispute Settlement.

    (a) Within 5 days after the answer to the charge has been or should 
have been filed, the panel may refer the matter, accompanied by a 
general or particularized request, to the National Center for Dispute 
Settlement of the American Arbitration Association (hereinafter referred 
to as the Center) to make an investigation and to determine whether the 
charging party has established a prima facie case.
    (b) For the purposes of this part, a prima facie case means a case 
where allegations of an unfair labor practice that have been presented 
give reasonable cause to believe that such practice may have occurred, 
but where evidentiary proceedings are necessary for determination of 
whether the allegations are substantiated.
    (c) The Center may use its own personnel or may hire individuals on 
a contract basis to conduct such investigations. The panel may 
consolidate or sever proceedings conducted pursuant to this part.
    (d) Any party may request the Center or other appointing authority 
to withdraw appointment of the investigator within 3 days after 
designation on the basis of previously demonstrated personal bias, 
conflict of interest, or prejudice. Such a request shall set forth in 
detail the matter alleged to constitute grounds for disqualification. 
Denial of a request by the Center or other appointing authority shall be 
substantiated in writing and transmitted to the requesting party, and 
shall be submitted to the panel together with the complete report of the 
investigator required in Sec. 269b.240(b).

[[Page 782]]



Sec. 269b.220   Priority; acceleration of proceedings.

    (a) A charge of ``refusal to bargain'' or a charge that, if 
sustained, would require the setting aside of an election or the conduct 
of a new election shall be given priority.
    (b) The parties, individually or jointly, may petition the panel at 
any time to invoke immediately the formal hearing procedures set forth 
in Sec. 269b.410. They may also petition the panel to entertain the 
matter itself without prior investigation and/or without the formal 
hearing procedure set forth in Sec. 269b.410. The panel is empowered 
also on its own motion to so accelerate disposition of the case.
    (c) Before accelerating a case the panel may utilize whatever 
proceedings it may deem appropriate and timely to allow parties in 
interest to comment on the proposed course of action.



Sec. 269b.230   Assessment of costs; posting of bond.

    (a) The panel shall normally bear the costs of an investigation 
conducted pursuant to Sec. 269b.210, but the panel may require that the 
charging party, the respondent, and/or other parties in interest or 
intervenors, or several of them, shall bear a portion or all of the 
costs therefor. With respect to each case where an investigation is 
directed by the panel, the charging party may, in the discretion of the 
panel, be required to file a cost bond, or equivalent security, of $500, 
unless the panel fixes a different amount.
    (b) Among the circumstances that may be the basis for payment of 
costs by other than the panel are cases where a clearly spurious charge 
has been filed or where the filing of a charge was necessary to redress 
the respondent's flagrant misconduct.
    (c) The bond or equivalent security shall be to secure the payment 
of the costs of the investigation as may be assessed by the panel. In 
those cases where the panel does not assess such costs, the bond posted 
and the cost thereof shall be reimbursed to the charging party. The 
panel may require also the posting of a cost bond by the respondent or 
other party to the proceeding, who shall be entitled to reimbursement of 
the cost of the bond in the event that no costs of investigation are 
assessed upon such party by the panel.
    (d) Notification of the panel's decision that a bond shall be 
required shall be effected by registered mail, such notice to advise of 
the amount of the bond required and the period by which it shall be 
posted.
    (e) Absent good cause shown, failure of a party to file timely such 
cost bond or equivalent security may be ground for dismissal or other 
administrative sanctions deemed appropriate by the Panel.



Sec. 269b.240   The investigation.

    (a) The purpose of the investigation is (1) to ascertain, analyze, 
and apply the relevant facts in order to determine whether or not formal 
proceedings are warranted and (2) to assist, by mediation and other 
appropriate means, the parties to reach a mutually satisfactory 
resolution of the issues as an alternative to the hearing process. In so 
doing, the investigator is not limited to the allegations set forth in 
the charge and may advise the charging party to amend his charge. In 
addition, he should adduce facts pertaining to the remedy as well as to 
the alleged violation. Investigation should also adduce facts pertaining 
to the jurisdiction of the panel and the timeliness of the charge. If 
the charge is untimely on its face, no investigation shall be required 
except to determine whether or not attending circumstances warrant 
waiving the time requirements, set forth in Sec. 269b.110. The 
investigator may request the appearance of parties and witnesses, may 
cause, the production of relevant document, and may take or cause 
depositions to be taken.
    (b) When the investigation has been completed, the Center shall 
issue a written determination whether the charging party has established 
a prima facie case, whether the charge was timely filed, and whether the 
charge is within the jurisdiction of the panel, and reasons therefor. 
This determination shall be served upon the panel and all parties. The 
panel shall receive also the complete report of the investigator.

[[Page 783]]

                 Appeal From the Center's Determination



Sec. 269b.310   Appeal rights.

    Where the investigator has found that a prima facie case does not 
exist, a party, including an intervenor but excluding the respondent or 
other parties having the same interest as the respondent, within 5 days 
after receiving the Center's determination may petition the panel to set 
aside the determination and to cause formal proceedings, set forth in 
Sec. 269b.410, to be invoked. The panel may grant such petition only on 
grounds that the Center or its agents were arbitrary, capricious, or 
acted contrary to law or the policy, or that the investigator's 
determination is clearly erroneous. The filing requirements for such a 
petition shall be the same as that for the filing of a charge, as set 
forth in Sec. 269b.111.



Sec. 269b.320   Proceedings before the panel.

    The panel shall issue its decision within 15 days after the receipt 
of the petition provided for in Sec. 269b.310 or by the end of that 
period shall announce that it will require briefs by the parties. Such 
announcement shall specify the requirements as to contents of the 
briefs, and the time for submission, which shall vary to meet the 
circumstances of the matter appealed. The panel, at such time, may also 
require oral argument or the production of evidence or may so order oral 
argument and/or the production of evidence after examination of the 
briefs. The panel shall issue its final decision within 20 days after 
briefs have been filed, evidence has been produced, or oral argument has 
been conducted.

                           Formal Proceedings



Sec. 269b.410   Notice of hearing.

    If formal proceedings are found to be needed under the above 
procedures, and if no satisfactory settlement has been reached within 5 
days after finding that a prima facie case exists, the Secretary of the 
panel, unless there is cause for granting an extension of time, shall 
issue and cause to be served upon the parties a notice of hearing. The 
panel shall appoint, pursuant to Sec. 269b.420, a hearing officer to 
hold a hearing and issue a report to the panel containing findings of 
fact, conclusions of law, and recommendations including, where 
appropriate, remedial action to be taken and notices to be posted. The 
Secretary shall furnish to the hearing officer the investigator's report 
and all other relevant information in the panel's possession.



Sec. 269b.420   Designation of hearing officer.

    (a) The panel, absent special circumstances, shall employ the center 
to select the hearing officer to conduct the hearing at a site most 
convenient to the parties and witnesses. The individual who performed 
the investigation, pursuant to Sec. 269b.210, shall be barred from 
acting as a hearing officer on the same matter, unless all parties in 
interest agree to his participation. The selection of the hearing 
officer, to the extent practicable, shall be done with the concurrence 
of the parties.
    (b) Any party may request the hearing officer, at any time following 
his designation and before the filing of his decision, to withdraw on 
grounds of previously demonstrated personal bias, conflict of interest, 
or prejudice by filing with him promptly upon the discovery of the 
alleged facts a timely affidavit setting forth in detail the matters 
alleged to constitute grounds for disqualification. If, in the opinion 
of the hearing officer, such affidavit is filed with due diligence and 
is sufficient on its face, he shall forthwith disqualify himself and 
withdraw from the proceeding. If he does not so withdraw, he shall so 
rule upon the record, stating the grounds for his ruling and proceed 
with the hearing, or, if the hearing has closed, he shall proceed with 
the issuance of his decision, and his ruling shall be subject to the 
same review by the panel that is given to the rest of his decision.
    (c) The costs of conducting the hearing and of the hearing officer 
shall be borne by the panel. Witness fees and expenses shall be paid by 
the party at whose instance the witnesses appear.



Sec. 269b.430   Contents of notice of hearing.

    The notice of hearing shall include:

[[Page 784]]

    (a) A copy of the charge;
    (b) A statement of the time of the hearing which shall be not less 
than 10 days after service of the notice of hearing, except in 
extraordinary circumstances. All charges involving a ``refusal to 
bargain'' allegation and all charges, if sustained, that would require 
the setting aside of an election, or the conducting of a new election 
shall be given first priority;
    (c) A statement of the place and nature of hearing;
    (d) A statement of the legal authority and jurisdiction under which 
the hearing is to be held;
    (e) A reference to the particular section of the policy and rules 
and regulations of this chapter involved;
    (f) A copy of the determination, if any, made causing the invocation 
of these formal proceedings.



Sec. 269b.440   Conduct of hearing.

    (a) Hearing shall be public unless otherwise ordered by the hearing 
officer or the panel. An official reporter shall make the only official 
transcript of such proceedings.
    (b) Copies of the official transcript will not be provided to the 
parties, but may be purchased by arrangement with the official reporter 
or with such costs as the panel may otherwise assess, or may be examined 
in the offices of the panel and/or the hearing officer subject to such 
conditions as the panel may prescribe.
    (c) A charging party in asserting that an unfair labor practice has 
been committed within the meaning of the policy, shall have the burden 
of proving the allegations of the charge, or the amended charge, by a 
preponderance of the evidence.
    (d) The parties shall not be bound by the technical rules of 
evidence, but the hearing officer, may, in his discretion, exclude any 
evidence or offer of proof if he finds that its probative value is 
substantially outweighed by the risk that its admission will either 
necessitate undue consumption of time or create substantial danger of 
undue prejudice or confusion.



Sec. 269b.441   Rights of parties.

    (a) Any party shall have the right to appear at such hearing in 
person, by counsel, or by other representative, to call, examine, and 
cross-examine witnesses as may be required for a full and true 
disclosure of the facts, and to introduce into the record documentary or 
other relevant evidence, except that the participation of any party 
shall be limited to the extent permitted by the hearing officer. Five 
copies of such documentary evidence shall be submitted unless the 
hearing officer permits a reduced number for good cause shown.
    (b) Any party shall be entitled, upon request, to a reasonable 
period at the close of the hearing for oral argument, which shall be 
included in the stenographic report of the hearing.
    (c) Any party shall be entitled to file a brief to the hearing 
officer within 10 days after the close of the hearing, but no reply 
brief may be filed except upon special permission of the hearing 
officer. A party filing a brief must file the original and one copy with 
the hearing officer along with proof of service of a copy of such brief 
to all parties. Requests for extension of time to file briefs must be 
made to the hearing officer who must receive the request at least 3 days 
prior to the expiration of time fixed for filing of briefs and notice of 
the request shall be served simultaneously on all other parties, and 
proof of service shall be furnished. If a request for extension of time 
is based on the need for a copy of the transcript prior to filing a 
brief, such request must be made to the hearing officer before the 
hearing is closed and must be ruled on prior to the close of the 
hearing.



Sec. 269b.442   Duties and powers of the hearing officer.

    The hearing officer shall inquire fully into the facts as to whether 
the respondent has engaged or is engaging in an unfair labor practice as 
set forth in the charge or the amended charge. The hearing officer shall 
have authority, with respect to cases assigned to him, between the time 
he is designated and transfer of the case to the panel, subject to the 
rules and regulations in this subchapter, to:
    (a) Grant requests for attendance of witnesses and production of 
documents;

[[Page 785]]

    (b) Rule upon petitions to quash requests made pursuant to paragraph 
(a) of this section;
    (c) Call, examine, and cross-examine parties and witnesses as may be 
required for a full and true disclosure of the facts and to introduce 
into the record documentary or other evidence;
    (d) Rule upon offers of proof and receive relevant evidence;
    (e) Take or cause depositions to be taken whenever the ends of 
justice would be served thereby;
    (f) Limit lines of questioning or testimony which are repetitive, 
cumulative, or irrelevant;
    (g) Regulate the course of the hearing and, if appropriate or 
necessary, exclude persons or counsel from the hearing for contemptuous 
conduct and strike all related testimony of witnesses refusing to answer 
any proper question;
    (h) Hold such prehearing conferences as may be necessary to expedite 
proceedings and hold such other conferences for the settlement or 
simplification of the issues by consent of the parties or upon his own 
motion;
    (i) Dispose of procedural requests, motions, or similar matters 
which shall be made part of the record of the proceeding, including 
motions referred to the hearing officer by the panel, and motions to 
amend pleadings, also to recommend dismissal of cases or portions 
thereof, and to order hearings reopened or, upon motion, consolidated 
prior to issuance of the hearing officer's report and recommendations;
    (j) Request the parties at any time during the hearing to state 
their respective positions concerning any issue in the case or theory in 
support thereof;
    (k) Require the parties, if necessary, to file written briefs in 
support of their positions;
    (l) Take any other action necessary under the foregoing and 
authorized by the rules and regulations in this subchapter.

In the event the hearing officer designated to conduct the hearing 
becomes unavailable, the panel may designate another hearing officer for 
the purpose of further hearing or issuance of a report and 
recommendation on the record as made, or both.



Sec. 269b.443   Motions before or after a hearing.

    All motions (including motions for intervention), other than those 
made during a hearing, shall be made in writing to the Secretary of the 
panel, shall briefly state the relief sought, shall set forth the 
grounds for such motion, and shall be accompanied 3 days thereafter by 
proof of service on all parties. Answering statements, if any, must be 
served on all parties and the original thereof, together with two copies 
and statement of service, shall be filed with the Secretary within 5 
days after service of the moving papers, unless the Secretary directs 
otherwise. Motions may be referred to the hearing officer whose ruling 
shall be made upon the record or the motion may be stayed until such 
time as the panel reviews the hearing officer's report and 
recommendations.



Sec. 269b.444   Objection to conduct of hearing; other motions during hearing.

    Any objection with respect to the conduct of the hearing, including 
any objection to the introduction of evidence, or any other motion 
during the course of the hearing, including a request to allow 
intervention, may be stated orally or in writing accompanied by a short 
statement of the grounds for such objection, and included in the record. 
No such objection shall be deemed waived by further participation in the 
hearing and such objection shall not stay the conduct of the hearing. 
Automatic exceptions will be allowed to all adverse rulings and shall be 
considered by the panel upon its review of the hearing officer's report 
and recommendations, if exception to the ruling is included in a 
statement of exceptions submitted to the panel after the close of the 
hearing, subject to the requirements of Sec. 269b.520.



Sec. 269b.450   Submission of hearing officer's report to the panel.

    After the close of the hearing, and the receipt of briefs, if any, 
the hearing officer shall prepare a report and recommendations, 
containing findings of fact, conclusions of law, including

[[Page 786]]

judgments as to the credibility of witnesses where appropriate, and the 
reasons or basis therefor, and recommendations as to the disposition of 
the case, and, where appropriate, including the remedial action and 
notices to be posted. After he has caused his report and recommendations 
to be served promptly on all parties to the proceeding, he shall 
transfer the case to the panel including his report and recommendations 
and the complete record. Such submission shall be made within 20 days 
after the close of the hearing and the receipt of briefs, if any, unless 
otherwise extended by the panel. The record shall include the charge, 
notice of hearing, service sheet, motions, rulings, orders, official 
transcript of the hearing, stipulations, objections, depositions, 
documentary evidence, exhibits, and any briefs or other documents 
submitted to the parties.

    Panel Review of Hearing Officer's Report and Recommended Decision



Sec. 269b.510   Review by panel.

    The panel shall review the report and recommendations of each 
hearing officer, the record of the hearing, and such other documents as 
enumerated in Sec. 269b.450, whether or not any party files an appeal, 
unless the parties file with the panel a settlement agreement within 10 
days after service of the hearing officer's report upon them. In the 
course of such review, the panel may require oral argument or written 
briefs on any relevant issue within such time limits as the panel may 
prescribe, and may reopen the record in any case and receive further 
evidence.



Sec. 269b.520   Exceptions to hearing officer's report.

    (a) Any party may file with the panel exceptions to the hearing 
officer's report and recommendations, and any ruling contained therein, 
if made within 10 days after service of the report and recommendations. 
The Panel may, for good cause shown, extend the time for filing such 
exceptions upon written request, with copies served simultaneously on 
the other parties, received not later than 3 days before the date 
exceptions are due. Requests for oral argument will not be considered 
unless filed with exceptions.
    (b) Any exception to a ruling, finding, conclusion, or 
recommendation which is not specifically urged shall be deemed to have 
been waived, although the panel may on its own motion rule upon any 
matter in the report and recommendations.
    (c) Any exception which fails to comply with the following 
requirements may be disregarded:
    (1) The exceptions shall set forth specifically the questions of 
procedure, fact, law, or policy to which exceptions are taken;
    (2) The exceptions shall identify the part of the hearing officer's 
report to which objection is made;
    (3) The exceptions shall designate by precise citation of page the 
portions of the record relied on, shall state the grounds for the 
exceptions, and shall include the citation of authorities unless set 
forth in a supporting brief.
    (d) Any brief in support of exceptions shall contain no matter not 
included within the scope of the exceptions and shall contain in the 
order indicated, the following:
    (1) A concise statement of the case containing all that is material 
to the consideration of the questions presented;
    (2) A specification of the questions involved and to be argued;
    (3) The argument, presenting clearly the points of fact and law 
relied on in support of the position taken on each question, with 
specific page reference to the transcript and the legal or other 
material relied on.
    (e) Answering briefs to the exceptions, and cross-exceptions and 
supporting briefs will not be permitted without special leave of the 
panel. Requests for oral argument will not be considered unless 
accompanying such petition for special leave.
    (f) Five copies of exceptions and briefs must be filed with the 
panel along with a statement of service of copies of the exceptions and 
supporting briefs upon all parties.

[[Page 787]]



Sec. 269b.530   Briefs in support of the hearing officer's report.

    Any party may file a brief in support of the hearing officer's 
report and recommendations subject to the same time limits and rules 
pertaining to filing exceptions and briefs in support thereof, as set 
forth in Sec. 269b.520.



Sec. 269b.540   Action by the panel.

    After considering the hearing officer's report and recommendations, 
the record, any other documents, any exceptions filed, and any oral 
argument permitted, the panel shall issue its written decision. Upon 
finding that the respondent is engaging in or has engaged in an unfair 
labor practice, the panel shall order the respondent to cease and desist 
from such conduct and may require the respondent to take such 
affirmative corrective action as the panel deems appropriate to 
effectuate the Policy. Such action by the panel may include, but shall 
not be limited to, orders to provide back pay, provide reinstatement, 
set aside an election, bargain, and award recognition. Upon finding no 
violation of the policy, the panel shall dismiss the case. The panel's 
decision and order setting forth the remedial action, if any, required 
shall be conspicuously posted by the parties.

                               Compliance



Sec. 269b.610   Procedures.

    Where remedial action is ordered or provided for in a settlement 
agreement, a report to the panel that such action has been taken and 
that compliance with the decision and orders of the panel has been 
effected shall be submitted within the period of time specified in the 
panel's decision. The panel is empowered to utilize whatever 
administrative procedures it deems necessary to ascertain compliance.



Sec. 269b.620   Action by panel.

    In any case where it is found, after a hearing, that the respondent 
has failed to comply with the final decision and order of the panel, the 
panel shall be empowered to take whatever action may be appropriate and 
shall expect the full cooperation of the Board of Governors of the 
Federal Reserve System in obtaining such compliance. Among the actions 
that may be taken by the panel against a noncomplying respondent labor 
organization, after a show cause hearing, may be suspension of that 
labor organization's checkoff privileges or recognition as exclusive 
bargaining representative for such period of time as determined by the 
panel.

                              General Rules



Sec. 269b.710   Rules to be liberally construed.

    (a) Whenever the panel finds that unusual circumstances or good 
cause exist and that strict compliance with the terms of the rules and 
regulations in this subchapter will work an injustice or unfairness, it 
shall construe the rules and regulations in this subchapter liberally to 
prevent injustices and to effectuate the purposes of the policy.
    (b) When an act is required or allowed to be done at or within a 
specified time, the panel may at any time, in its discretion, order the 
period altered where it shall be manifest that strict adherence will 
work surprise or injustice or interfere with the proper effectuation of 
the policy.



Sec. 269b.720   Computation of time for filing papers.

    In computing any period of time prescribed by or allowed by the 
panel, the day of the act, event, or default after which the designated 
period of time begins to run, shall not be included. The last day of the 
period so computed is to be included, unless it is a Saturday, Sunday, 
or the applicable local legal holiday in which event the period shall 
run until the end of the next day which is neither a Saturday, Sunday, 
or legal holiday. When the period of time prescribed, or allowed, is 
seven days or less, intermediate Saturdays, Sundays, and legal holidays 
shall be excluded from the computations. When the rules and regulations 
in this subchapter require the filing of any paper, such document must 
be received by the panel or the officer or agent designated by it to 
receive such matter before the close of business of the last day of the 
time

[[Page 788]]

limit, if any, for such filing or extension of the time that may have 
been granted.



Sec. 269b.730   Number of copies; form.

    Except as otherwise provided in the regulations in this subchapter, 
any documents or papers shall be filed with four copies in addition to 
the original. All matters filed shall be printed, typed, or otherwise 
legibly duplicated; carbon copies of typewritten matter will be accepted 
if they are clearly legible.



Sec. 269b.731   Signature.

    The original of each document filed shall be signed by the party or 
by an attorney or representative of record for the party, or by an 
officer of the party and shall contain the address and telephone number 
of the person signing it.



Sec. 269b.740   Service of pleading and other paper; statement of service.

    (a) Method of service. Notices of hearings, decisions, orders, and 
other papers may be served personally or by registered or certified mail 
or by telegraph.
    (b) Upon whom served. Unless otherwise provided in the rules and 
regulations in this subchapter, all papers except complaints, petitions, 
and papers relating to requests for appearance or production of 
documents, shall be served upon all counsel of record and upon parties 
not represented by counsel or by their agents designated by them or by 
law and upon the panel, or its designated officers or agents, where 
appropriate. Service upon such counsel or representative shall 
constitute service upon the party, but a copy also shall be transmitted 
to the party.
    (c) Proof of service. The party or person serving the papers or 
process shall submit simultaneously to the panel or its designated 
representative, or the individual conducting the proceeding, a written 
statement of such service. Failure to file a statement of service shall 
not affect the validity of the service. Proof of service, except where 
otherwise provided, shall be required only if subsequent to the receipt 
of a statement of service a question is raised with respect to proper 
service.



Sec. 269b.750   Requests for appearance of witnesses and production of documents.

    Parties may request appearance of witnesses and production of 
documents by filing application therefor, depending upon the stage of 
the proceedings at which the request is made, with the officer 
conducting the investigation or hearing, or with the panel. Such 
application shall name and identify the witnesses or documents sought 
and shall briefly state the need for such appearance or production. The 
officer with whom such request is filed shall rule upon each such 
request and the record of the proceeding shall contain a record of that 
ruling and the basis therefor. The record shall also contain a statement 
of reasons for any request for the appearance of witnesses or production 
of documents initiated by a presiding officer.

[[Page 789]]



               SUBCHAPTER B--FEDERAL OPEN MARKET COMMITTEE





PART 270--OPEN MARKET OPERATIONS OF FEDERAL RESERVE BANKS--Table of Contents




 Regulations Relating to Open Market Operations of Federal Reserve Banks

Sec.
270.1  Authority.
270.2  Definitions.
270.3  Governing principles.
270.4  Transactions in obligations.

    Authority: Sec. 8, 48 Stat. 168, as amended (12 U.S.C. 263).

    Source: 38 FR 2753, Jan. 30, 1973, unless otherwise noted.

 Regulations Relating to Open Market Operations of Federal Reserve Banks



Sec. 270.1   Authority.

    This part is issued by the Federal Open Market Committee (the 
``Committee'') pursuant to authority conferred upon it by sections 12A 
and 14 of the Federal Reserve Act (12 U.S.C. 263, 355).



Sec. 270.2   Definitions.

    (a) The term obligations means Government securities, U.S. agency 
securities, bankers' acceptances, bills of exchange, cable transfers, 
bonds, notes, warrants, debentures, and other obligations that Federal 
Reserve banks are authorized by law to purchase and sell.
    (b) The term Government securities means direct obligations of the 
United States (i.e., U.S. bonds, notes, certificates of indebtedness, 
and Treasury bills) and obligations fully guaranteed as to principal and 
interest by the United States.
    (c) The term U.S. agency securities means obligations that are 
direct obligations of, or are fully guaranteed as to principal and 
interest by, any agency of the United States.
    (d) The term System Open Market Account means the obligations 
acquired pursuant to authorizations and directives issued by the 
Committee and held on behalf of all Federal Reserve banks.



Sec. 270.3   Governing principles.

    As required by section 12A of the Federal Reserve Act, the time, 
character, and volume of all purchases and sales of obligations in the 
open market by Federal Reserve banks are governed with a view to 
accommodating commerce and business and with regard to their bearing 
upon the general credit situation of the country.



Sec. 270.4   Transactions in obligations.

    (a) Each Federal Reserve bank shall engage in open market operations 
under section 14 of the Federal Reserve Act only in accordance with this 
part and with the authorizations and directives issued by the Committee 
from time to time, and no Reserve bank shall decline to engage in open 
market operations as directed by the Committee.
    (b) Transactions for the System Open Market Account shall be 
executed by a Federal Reserve bank selected by the Committee. The 
participations of the several Federal Reserve banks in such account and 
in the profits and losses on transactions for the account shall be 
allocated in accordance with principles determined by the Committee from 
time to time.
    (c) In accordance with such limitations, terms, and conditions as 
are prescribed by law and in authorizations and directives issued by the 
Committee, the Reserve bank selected by the Committee is authorized and 
directed--
    (1) To buy and sell Government securities and U.S. agency securities 
in the open market for the System Open Market Account, and to exchange 
maturing securities with the issuer;
    (2) To buy and sell banker's acceptances in the open market for its 
own account;
    (3) To buy Government securities, U.S. agency securities, and 
banker's acceptances of the kinds described above, under agreements for 
repurchase of such obligations, in the open market for its own account; 
and
    (4) To buy and sell foreign currencies in the form of cable 
transfers in the

[[Page 790]]

open market for the System Open Market Account and to maintain for such 
account reciprocal currency arrangements with foreign banks among those 
designated by the Board of Governors of the Federal Reserve System under 
Sec. 214.5 of this chapter (Regulation N).
    (d) The Federal Reserve banks are authorized and directed to engage 
in such other operations as the Committee may from time to time 
determine to be reasonably necessary to the effective conduct of open 
market operations and the effectuation of open market policies.

[38 FR 2753, Jan. 30, 1973, as amended at 39 FR 11873, Apr. 1, 1974; 48 
FR 32336, July 15, 1983]



PART 271--RULES REGARDING AVAILABILITY OF INFORMATION--Table of Contents




Sec.
271.1  Authority.
271.2  Definitions.
271.3  Published information.
271.4  Records available to the public on request.
271.5  Deferment of availability of certain information.
271.6  Information not disclosed.
271.7  Subpoenas.
271.8  Fee schedule; waiver of fees.

Appendix A to Part 271--Freedom of Information Fee Schedule

    Authority: 12 U.S.C. 263; 5 U.S.C. 552.



Sec. 271.1  Authority.

    This part is issued by the Federal Open Market Committee (the 
``Committee'') pursuant to the requirement of section 552 of title 5 of 
the United States Code that every agency shall publish in the Federal 
Register for the guidance of the public descriptions of the established 
places at which, the officers from whom, and the methods whereby, the 
public may obtain information, make submittals or requests, or obtain 
decisions, and the requirement that agencies promulgate, pursuant to 
notice and receipt of public comment, the fees applicable to those 
requests for information, and also pursuant to the Committee's authority 
under section 12A of the Federal Reserve Act, 12 U.S.C. 263, to issue 
regulations governing the conduct of its business.

[56 FR 23994, May 28, 1991]



Sec. 271.2   Definitions.

    (a) Information of the Committee. For purposes of this part, the 
term information of the Committee means all information coming into the 
possession of the Committee or of any member thereof or of any officer, 
employee, or agent of the Committee, the Board, or any Federal Reserve 
bank, in the performance of duties for, or pursuant to the direction of, 
the Committee.
    (b) Records of the Committee. (1) For purposes of requests submitted 
pursuant to the Freedom of Information Act (5 U.S.C. 552), the term 
records of the Committee includes rules, statements, opinions, orders, 
memoranda, letters, reports, accounts, and other written material, as 
well as magnetic tapes, computer printouts of information obtained 
through use of existing computer programs, charts, and other materials 
in machine readable form that constitute a part of the Committee's 
official files.
    (c) Board and Federal Reserve bank. For the purposes of this part, 
Board means the Board of Governors of the Federal Reserve System 
established by the Federal Reserve Act of 1913 (38 Stat. 251), and 
Federal Reserve bank means one of the district banks authorized by that 
same Act, 12 U.S.C. 222, including any branch of any such bank.
    (d) Search. (1) For the purposes of this part, search means a 
reasonable search of the Committee's files and any other files 
containing records of the Committee as seems reasonably likely in the 
particular circumstances to contain documents of the kind requested. 
Searches may be done manually or by computer using existing programming. 
For purposes of computing fees under Sec.  271.8 of this regulation, 
search time includes all time spent looking for material that is 
responsive to a request, including line-by-line identification of 
material within documents. Such activity is distinct from review of 
material to determine whether the material is exempt from disclosure.

[32 FR 9518, July 1, 1967, as amended at 38 FR 2754, Jan. 30, 1973; 56 
FR 23994, May 28, 1991]

[[Page 791]]



Sec. 271.3   Published information.

    (a) Federal Register. To the extent required by sections 552 and 553 
of title 5 of the United States Code, and subject to the provisions of 
Secs. 271.5 and 271.6, the Committee publishes in the Federal Register, 
in addition to this part,
    (1) A description of its organization;
    (2) Statements of the general course and method by which its 
functions are channeled and determined;
    (3) Rules of procedure;
    (4) Substantive rules of general applicability, and statements of 
general policy and interpretations of general applicability formulated 
and adopted by the Committee;
    (5) Every amendment, revision, or repeal of the foregoing; and
    (6) General notices of proposed rule making.
    (b) Policy record. In accordance with section 10 of the Federal 
Reserve Act (12 U.S.C. 247a), each annual report made to Congress by the 
Board includes a complete record of the actions taken by the Committee 
during the preceding year upon all matters of policy relating to open 
market operations, showing the votes taken and the reasons underlying 
such actions.
    (c) Other published information. From time to time, other 
information relating to open market operations of the Federal Reserve 
Banks is published in the Federal Reserve Bulletin, issued monthly by 
the Board, in such Board's annual report to Congress, and in 
announcements and statements released to the press. Copies of issues of 
the Bulletin and of annual reports of the Board may be obtained upon 
request.

[32 FR 9518, July 1, 1967, as amended at 38 FR 2754, Jan. 30, 1973]



Sec. 271.4   Records available to the public on request.

    (a) Records available. Records of the Committee are made available 
to any person, upon request, for inspection or copying in accordance 
with the provisions of this section and subject to the limitations 
stated in Secs. 271.5 and 271.6. Records falling within the exemptions 
from disclosure set forth in section 552(b) of title 5 of the United 
States Code and in Sec. 271.6 may nevertheless be made available in 
accordance with this section to the fullest extent consistent, in the 
Committee's judgment, with the effective performance of the Committee's 
statutory responsibilities and with the avoidance of injury to a public 
or private interest intended to be protected by such exemptions.
    (b) Place and time. In general, the records of the Committee are 
held in the custody of the Board, but certain of such records, or copies 
thereof, are held in the custody of one or more of the Federal Reserve 
Banks. Any such records subject to this section will be made available 
for inspection or copying during regular business hours at the offices 
of the Board in the Federal Reserve Building, 20th and Constitution 
Avenue, Washington, DC 20551, or, in certain instances as provided in 
paragraph (c) of this section, at the offices of one or more designated 
Federal Reserve Banks.
    (c) Obtaining access to records. Any person requesting access to 
records of the Committee shall submit such request in writing to the 
Secretary of the Committee. In any case in which the records requested, 
or copies thereof, are available at a Federal Reserve Bank, the 
Secretary of the Committee or his or her designee may so advise the 
person requesting access to the records. Every request for access to 
records of the Committee shall state the full name and shall describe 
such records in a manner reasonably sufficient to permit their 
identification without undue difficulty. The Secretary of the Committee 
or his or her designee shall determine within ten working days after 
receipt of a request for access to records of the Committee whether to 
comply with such request; and he shall immediately notify the requesting 
party of his decision, of the reasons therefor, and of the right of the 
requesting party to appeal to the Committee any refusal to make 
available the requested records of the Committee.
    (d) Appeal of denial of access to records of the Committee. Any 
person who is denied access to the records of the Committee, properly 
requested in accordance with paragraph (c) of this section, may file, 
with the Secretary of the

[[Page 792]]

Committee, within ten days of notification of such denial, a written 
request for review of such denial. The Committee, or such member or 
members of the Committee may designate (pursuant to Sec. 272.4(c) of its 
Rules of Procedure) shall make a determination with respect to any such 
appeal within 20 working days of its receipt, and shall immediately 
notify the appealing party of the decision on the appeal and of the 
right to seek court review of any decision which upholds, in whole or in 
part, the refusal of the Secretary of the Committee to make available 
the requested records.
    (e) Extension of time requirements in unusual circumstances. In 
unusual circumstances as provided in 5 U.S.C. 552(a)(6)(b), the time 
limitation imposed upon the Secretary of the Committee or the Committee 
or its designated representative(s) in paragraphs (c) and (d) of this 
section may be extended by written notice to the requesting party for a 
period of time not to exceed a total of ten working days.

[32 FR 9518, July 1, 1967, as amended at 38 FR 2754, Jan. 30, 1973; 40 
FR 7897, Feb. 24, 1975; 56 FR 23994, May 28, 1991]



Sec. 271.5   Deferment of availability of certain information.

    (a) Deferred availability of information. In some instances, certain 
types of information of the Committee are not published in the Federal 
Register or made available for public inspection or copying until after 
such period of time as the Committee may determine to be reasonably 
necessary to avoid the effects described in paragraph (b) of this 
section or as may otherwise be necessary to prevent impairment of the 
effective discharge of the Committee's statutory responsibilities.
    (b) Reasons for deferment of availability. Publication of, or access 
to, certain information of the Committee may be deferred because earlier 
disclosure of such information would:
    (1) Interfere with the orderly execution of policies adopted by the 
Committee in the performance of its statutory functions;
    (2) Permit speculators and others to gain unfair profits or to 
obtain unfair advantages by speculative trading in securities, foreign 
exchange, or otherwise;
    (3) Result in unnecessary or unwarranted disturbances in foreign 
exchange or domestic securities markets;
    (4) Make open market operations more costly;
    (5) Interfere with the orderly execution of the objectives or 
policies of other Government agencies concerned with domestic or foreign 
economic or fiscal matters; or
    (6) Interfere with, or impair the effectiveness of, financial 
transactions with foreign banks, bankers, or countries that may 
influence the flow of gold and of dollar balances to or from foreign 
countries.

[32 FR 9518, July 1, 1967, as amended at 40 FR 13204, Mar. 25, 1975; 41 
FR 22261, June 2, 1976; 56 FR 23995, May 28, 1991]



Sec. 271.6   Information not disclosed.

    Except as may be authorized by the Committee, information of the 
Committee that is not available to the public through other sources will 
not be published or made available for inspection, examination, or 
copying by any person if such information:
    (a) Is specifically exempted from disclosure by statute (other than 
section 552b of title 5, United States Code), provided that such statute 
(1) requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or (2) establishes 
particular criteria for withholding or refers to particular types of 
matters to be withheld; or is specifically authorized under criteria 
established by an executive order to be kept secret in the interests of 
national defense or foreign policy and is in fact properly classified 
pursuant to such executive order;
    (b) Relates solely to internal personnel rules or practices or other 
internal practices of the Committee within the meaning of 5 U.S.C. 
552(b)(2);
    (c) Relates to trade secrets or commercial or financial information 
obtained from any person and privileged or confidential;
    (d) Is contained in inter- or intra-agency memorandums, reports, or 
letters that would not be routinely available by law to a party (other 
than an

[[Page 793]]

agency) in litigation with the Committee, including by not limited to:
    (1) Memorandums;
    (2) Reports;
    (3) Other documents prepared by the staff or agents of the 
Committee;
    (4) Records of deliberations of the Committee and of discussions at 
meetings of the Committee, or staff or agents of the Committee.
    (e) Is contained in personnel, medical, or similar files (including 
financial files) the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy;
    (f) Is contained in or related to examination, operating, or 
condition reports prepared by, on behalf of, or for the use of any 
agency responsible for the regulation or supervision of financial 
institutions;
    (g) Constitutes records or information compiled for law enforcement 
purposes, to the extent permitted under 5 U.S.C. 552(b)(7).
    (h) Constitutes a document or information that is covered by an 
order of a court of competent jurisdiction that prohibits its 
disclosure.

Except as provided by or pursuant to this part, no person shall 
disclose, or permit the disclosure of, any information of the Committee 
to any person, whether by giving out or furnishing such information or 
copy thereof, by allowing any person to inspect, examine, or reproduce 
such information or copy thereof, or by any other means, whether the 
information is located at the offices of the Board, any Federal Reserve 
bank, or elsewhere, unless such disclosure is required in the 
performance of duties for, or pursuant to the direction of, the 
Committee.

[32 FR 9518, July 1, 1967, as amended at 38 FR 2754, Jan. 30, 1973; 42 
FR 13299, Mar. 10, 1977; 56 FR 23995, May 28, 1991]



Sec. 271.7   Subpoenas.

    (a) Advice by person served. If any person, whether or not an 
officer or employee of the Committee, of the Board of Governors of the 
Federal Reserve System, or of a Federal Reserve Bank, has information of 
the Committee that may not be disclosed by reason of Sec. 271.5 or 
Sec. 271.6 and in connection therewith is served with a subpoena, order, 
or other process requiring his personal attendance as a witness or the 
production of documents or information upon any proceeding, he should 
promptly inform the Secretary of the Committee of such service and of 
all relevant facts, including the documents and information requested 
and any facts that may be of assistance in determining whether such 
documents or information should be made available; and he should take 
action at the appropriate time to inform the court or tribunal that 
issued the process, and the attorney for the party at whose instance the 
process was issued, if known, of the substance of this part.
    (b) Appearance by person served. Except as disclosure of the 
relevant information is authorized pursuant to this part, any person who 
has information of the Committee and is required to respond to a 
subpoena or other legal process shall attend at the time and place 
therein mentioned and decline to disclose such information or give any 
testimony with respect thereto, basing his refusal upon this part. If, 
notwithstanding, the court or other body orders the disclosure of such 
information, or the giving of such testimony, the person having such 
information of the Committee shall continue to decline to disclose such 
information and shall promptly report the facts to the Committee for 
such action as the Committee may deem appropriate.

[32 FR 9518, July 1, 1967, as amended at 38 FR 2754, Jan. 30, 1973]



Sec. 271.8  Fee schedule; waiver of fees.

    (a) Fee schedule. Records of the Committee available for public 
inspection and copying are subject to a written Schedule of Fees for 
search, review, and duplication. (See appendix A for Schedule of Fees.) 
The fees set forth in the Schedule of Fees reflect the full allowable 
direct costs of search, duplication, and review, and may be adjusted 
from time to time by the Secretary to reflect changes in direct costs.
    (b) Fees charged. The fees charged only cover the full allowable 
direct costs of search, duplication, or review.
    (1) Direct costs mean those expenditures which the Committee 
actually incurs in searching for and duplicating (and in the case of 
commercial requesters, reviewing) documents to respond

[[Page 794]]

to a request made under Sec.  271.4 of this regulation. Direct costs 
include, for example, the salary of the employee performing work (the 
basic rate of pay for the employee plus a factor to cover benefits) and 
the cost of operating duplicating machinery. Not included in direct 
costs are overhead expenses such as costs of space, and heating or 
lighting the facility in which the records are stored.
    (2) Duplication refers to the process of making a copy of a document 
necessary to respond to a request for disclosure of records, or for 
inspection of original records that contain exempt material or that 
otherwise cannot be inspected directly. Such copies may take the form of 
paper copy, microform, audio-visual materials, or machine readable 
documentation (e.g., magnetic tape or disk), among others.
    (3) Review refers to the process of examining documents located in 
response to a request that is for a commercial use to determine whether 
any portion of any document located is permitted to be withheld. It also 
includes processing any documents for disclosure, e.g., doing all that 
is necessary to excise them and otherwise prepare them for release. 
Review does not include time spent resolving general legal or policy 
issues regarding the application of exemptions.
    (c) Commercial use. (1) The fees in the Schedule of Fees for 
document search, duplication, and review apply when records are 
requested for commercial use.
    (2) Commercial use request refers to a request from or on behalf of 
one who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person on 
whose behalf the request is made.
    (d) Educational, research, or media use. (1) Only the fees in the 
Schedule of Fees for document duplication apply when records are not 
sought for commercial use and the requester is a representative of the 
news media, or of an educational or noncommercial scientific 
institution, whose purpose is scholarly or scientific research. However, 
there is no charge for the first one hundred pages of duplication.
    (2) Educational institution refers to a preschool, a public or 
private elementary or secondary school, or an institution of 
undergraduate higher education, graduate higher education, professional 
education, or an institution of vocational education which operates a 
program of scholarly research.
    (3) Noncommercial scientific institution refers to an institution 
that is not operated on a commercial basis (as that term is used in 
paragraph (c) of this section) and which is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry.
    (4) Representative of the news media refers to any person who is 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that is about current events or that would be of current interest to the 
public. Free lance journalists may be regarded as working for a news 
organization if they can demonstrate a solid basis for expecting 
publication through that organization, even though not actually employed 
by it.
    (e) Other uses. For all other requests, the fees in the Schedule of 
Fees for document search and duplication apply. However, there is no 
charge for the first one hundred pages of duplication or the first two 
hours of search time.
    (f) Aggregated requests. If the Secretary reasonably believes that a 
requester or group of requesters is attempting to break down a request 
into a series of requests, each seeking portions of a document or 
documents solely for the purpose of avoiding the assessment of fees, the 
Secretary may aggregate such requests and charge accordingly. It is 
considered reasonable for the Secretary to presume that multiple 
requests of this type made within a 30-day period have been made to 
avoid fees.
    (g) Payment procedures. (1) Fee payment. The Secretary may assume 
that a person requesting records pursuant to Sec.  271.4 of this 
regulation will pay the applicable fees, unless a request includes a 
limitation on fees to be paid or

[[Page 795]]

seeks a waiver or reduction of fees pursuant to paragraph (h) of this 
section.
    (2) Advance notification. If the Secretary estimates that charges 
are likely to exceed $25, the requester shall be notified of the 
estimated amount of fees, unless the requester has indicated in advance 
willingness to pay fees as high as those anticipated. Upon receipt of 
such notice the requester may confer with the Secretary as to the 
possibility of reformulating the request in order to lower the costs.
    (3) Advance payment. (i) The Secretary may require advance payment 
of any fee estimated to exceed $250. The Secretary may also require full 
payment in advance where a requester has previously failed to pay a fee 
in a timely fashion.
    (ii) For purposes of computing the time period for responding to 
requests under Sec.  271.4(c) of this regulation, the running of the 
time period will begin only after the Secretary receives the required 
payment.
    (4) Late charges. The Secretary may assess interest charges when a 
fee is not paid within 30 days of the date on which the billing was 
sent. Interest will be at the rate prescribed in section 3717 of title 
31 U.S.C.A. and will accrue from the date of the billing. This rate of 
interest is published by the Secretary of the Treasury before November 1 
each year and is equal to the average investment rate for Treasury tax 
and loan accounts for the 12-month period ending on September 30 of each 
year. The rate is effective on the first day of the next calendar 
quarter after publication.
    (5) Fees for nonproductive search. Fees for record searches and 
review may be charged even if no responsive documents are located or if 
the request is denied. The Secretary shall apply the standards set out 
in paragraph (h) of this section in determining whether to waive or 
reduce fees.
    (h) Waiver or reduction of fees. (1) Standards for determining 
waiver or reduction. The Secretary or his or her designee shall grant a 
waiver or reduction of fees chargeable under paragraph (b) of this 
section where it is determined both that disclosure of the information 
is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities of 
the government, and that the disclosure of information is not primarily 
in the commercial interest of the requester. The Secretary or his or her 
designee shall also waive fees that are less than the average cost of 
collecting fees.
    (2) Contents of request for waiver. The Secretary shall normally 
deny a request for a waiver of fees that does not include:
    (i) A clear statement of the requester's interest in the requested 
documents;
    (ii) The use proposed for the documents and whether the requester 
will derive income or other benefit from such use;
    (iii) A statement of how the public will benefit from such use and 
from the Board's release of the requested documents; and
    (iv) If specialized use of the documents or information is 
contemplated, a statement of the requester's qualifications that are 
relevant to the specialized use.

       Appendix A to Part 271--Freedom of Information Fee Schedule

Duplication:

Photocopy, per standard page......................................$ 0.10
Paper copies of microfiche, per frame.............................$ 0.10
Duplicate microfiche, per microfiche..............................$ 0.30

Search and Review:

Clerical/Technical, hourly rate...................................$17.00
Professional/Supervisory, hourly rate.............................$32.00
Manager/Senior Professional, hourly rate..........................$53.00

Computer Search and Production:

Operator search time, hourly rate.................................$25.00
Cassette tapes....................................................$ 5.00
PC computer output, per minute....................................$ 0.10
Mainframe computer output....................................Actual cost

                            Special Services

    The Secretary of the Committee may agree to provide, and set fees to 
recover the costs of, special services not covered by the Freedom of 
Information Act, such as certifying records or information and sending 
records by special methods such as express mail. The Secretary may 
provide self-service photocopy machines and microfiche printers as a 
convenience to requesters.


[[Page 796]]



                               Fee Waivers

    For qualifying educational and noncommercial scientific institution 
requesters and representatives of the news media, the Committee will not 
assess fees for review time, for the first 100 pages of reproduction, 
or, when the records sought are reasonably described, for search time. 
For other noncommercial use requests, no fees will be assessed for 
review time, for the first 100 pages of reproduction, or the first two 
hours of search time. For requesters qualifying for 100 free pages of 
reproduction, the fees for duplicate microfiche will be prorated to 
eliminate the charge for 100 frames.
    The Committee will waive in full fees that total less than $5.
    The Secretary of the Committee or his or her designee will also 
waive or reduce fees, upon proper request, if disclosure of the 
information is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities of 
the government and is not primarily in the commercial interest of the 
requester. A fee reduction is available to employees, and applicants for 
employment who request records for use in prosecuting a grievance or 
complaint against the Committee.

[56 FR 23996, May 28, 1991]



PART 272--RULES OF PROCEDURE--Table of Contents




Sec.
272.1  Authority.
272.2  Functions of the Committee.
272.3  Meetings.
272.4  Committee actions.
272.5  Notice and public procedure.

    Authority: 5 U.S.C. 552.

    Source: 38 FR 2754, Jan. 30, 1973, unless otherwise noted.



Sec. 272.1   Authority.

    This part is issued by the Federal Open Market Committee (the 
Committee) pursuant to the requirement of section 552 of title 5 of the 
United States Code that every agency shall publish in the Federal 
Register its rules of procedure.



Sec. 272.2   Functions of the Committee.

    The procedures followed by the Committee are designed to facilitate 
the effective performance of the Committee's statutory functions with 
respect to the regulation and direction of open market operations 
conducted by the Federal Reserve banks and with respect to certain 
direct transactions between the Reserve banks and the United States. In 
determining the policies to be followed in such operations, the 
Committee considers information regarding business and credit conditions 
and domestic and international economic and financial developments, and 
other pertinent information gathered and submitted by its staff and the 
staffs of the Board of Governors of the Federal Reserve System (the 
Board) and the Federal Reserve banks. Against the background of such 
information, the Committee takes actions from time-to-time to regulate 
and direct the open market operations of the Reserve banks. Such policy 
actions ordinarily are taken through the adoption and transmission to 
the Federal Reserve banks of regulations, authorizations, and 
directives.



Sec. 272.3   Meetings.

    (a) Place and frequency. The Committee meets in Washington, DC, at 
least four times each year and oftener if deemed necessary. Meetings are 
held upon the call of the Chairman of the Board or at the request of any 
three members of the Committee. Notices of calls by the Chairman of the 
Board to other members are given by the Secretary of the Committee in 
writing or by telegram. Requests of any three members for the calling of 
a meeting shall state the time therefor and shall be filed in writing or 
by telegram with the Secretary who shall forthwith notify all members of 
the Committee in writing or by telegram. When the Secretary has sent 
notices to all members of the Committee that a meeting has been 
requested by three members and of the time therefor, a meeting is deemed 
to have been called. If, in the judgment of the Chairman, circumstances 
require that a meeting be called at such short notice that one or more 
members cannot be present in Washington, such members may participate in 
the meeting by telephone conference arrangements.
    (b) Alternates. Whenever any member of the Committee representing 
Federal Reserve banks shall find that he will be unable to attend a 
meeting of the Committee, he shall promptly notify his alternate and the 
Secretary of the Committee in writing or by telegram, and

[[Page 797]]

upon receipt of such notice the alternate shall advise the Secretary 
whether he will attend such meeting.
    (c) Quorum. Seven members (including alternates present and acting 
in the absence of members) constitute a quorum for the transaction of 
business; but less than a quorum may adjourn from time to time until a 
quorum is in attendance.
    (d) Attendance at meetings. Attendance at Committee meetings is 
restricted to members and alternate members of the Committee, the 
Presidents of Federal Reserve Banks who are not at the time members or 
alternates, staff officers of the Committee, the Managers, and such 
other advisers as the Committee may invite from time to time.
    (e) Meeting agendas. The Secretary, in consultation with the 
Chairman, prepares an agenda of matters to be discussed at each meeting 
and the Secretary transmits the agenda to the members of the Committee 
within a reasonable time in advance of such meeting. In general, the 
agendas include approval of minutes of actions; reports by the Managers 
on open market operations since the previous meeting, and ratification 
by the Committee of such operations; reports by Economists on, and 
Committee discussion of, the economic and financial situation and 
outlook; Committee discussion of monetary policy and action with respect 
thereto; and such other matters as may be considered necessary.

[38 FR 2754, Jan. 30, 1973, as amended at 44 FR 52823, Sept. 11, 1979]



Sec. 272.4   Committee actions.

    (a) Actions at meetings. Actions are taken at meetings of the 
Committee except as described below.
    (b) Actions between meetings. Special circumstances may make it 
desirable in the public interest for Committee members to consider an 
action to modify an outstanding Committee authorization or directive at 
a time when it is not feasible to call a meeting. Whenever, in the 
judgment of the Chairman, such circumstances have arisen, the relevant 
information and recommendations for action are transmitted to the 
members by the Secretary, and the members communicate their votes to the 
Secretary. If the action is approved by a majority of the members, 
advice to that effect is promptly given by the Secretary to the members 
of the Committee and to the Reserve bank selected to execute 
transactions for the System Open Market Account. All communications of 
recommended actions and votes under this paragraph shall be in writing 
or by telegram; provided that, in exceptional cases when that is not 
feasible, such communications may be made orally, either in person or by 
telephone, and the Secretary shall cause a written record to be made 
without delay. An action taken between meetings has the force and effect 
of an action at a meeting: Provided, however, That if a meeting is held 
before the execution of any operations pursuant to the action, the 
action is null and void unless it is ratified and confirmed by the 
Committee at such meeting.
    (c) Delegations of authority. In special circumstances, the 
Committee may delegate authority to take an action, subject to such 
instructions or guidelines as the Committee deems proper. Such 
delegations of authority may be made to the Chairman; to a subcommittee 
consisting of the Chairman and the Vice Chairman of the Committee and 
the Vice Chairman of the Board (or in the absence of the Chairman or of 
the Vice Chairman of the Board the members of the Board designated by 
the Chairman as alternates, and in the absence of the Vice Chairman of 
the Committee his alternate); or to any other member or members of the 
Committee. An action taken pursuant to such a delegation of authority 
has the force and effect of an action taken by the Committee.
    (d) Effective date. Committee action ordinarily is made effective as 
of the time it is taken because the nature of the subject matter and the 
action taken is such that the public interest and the proper discharge 
of the Committee's responsibilities so require. Occasionally, however, 
the Committee may specify that an action is to be effective at some 
different time.

[[Page 798]]



Sec. 272.5   Notice and public procedure.

    There ordinarily is no published notice of proposed action by the 
Committee or public procedure thereon, as described in section 553 of 
title 5 of the United States Code, because such notice and procedure are 
impracticable, unnecessary, or contrary to the public interest.



PART 281--STATEMENTS OF POLICY--Table of Contents




Sec.
281.1  Purchase of Treasury bills.
281.2  Policy regarding the Government in the Sunshine Act.



Sec. 281.1   Purchase of Treasury bills.

    The Federal Open Market Committee of the Federal Reserve System has 
directed the Federal Reserve Banks to terminate the policy of buying all 
Treasury bills offered to them at a fixed rate of \3/8\ per cent per 
annum and to terminate the repurchase option privilege on Treasury 
bills. The new policy will apply to bills issued on or after July 10, 
1947. Existing policy will continue to apply to bills issued prior to 
that date.

(Sec. 12A, 48 Stat. 168, as amended; 12 U.S.C. 263)

[12 FR 4543, July 10, 1947]



Sec. 281.2  Policy regarding the Government in the Sunshine Act.

    On September 13, 1976, there was enacted into law the Government in 
the Sunshine Act, Pub. L. No. 94-409, 90 Stat. 1241 (``Sunshine Act''), 
established for the purpose of providing the public with the ``fullest 
practicable information regarding the decisionmaking processes of the 
Federal Government * * * while protecting the rights of individuals and 
the ability of the Government to carry out its responsibilities.''1 
The Sunshine Act applies only to those Federal agencies that are defined 
in section 552(e) of Title 5 of the United States Code and ``headed by a 
collegial body composed of two or more individual members, a majority of 
whom are appointed to such position by the President with the advice and 
consent of the Senate, and any subdivision thereof authorized to act on 
behalf of the agency.''2
---------------------------------------------------------------------------

    1Government in the Sunshine Act, Pub. L. 94-409, sec. 2, 90 Stat. 
1241 (1976).
    2Government in the Sunshine Act, Pub. L. 94-409, sec. 3(a), 90 
Stat. 1241 (1976).
---------------------------------------------------------------------------

    The Federal Open Market Committee (``FOMC'') is a separate and 
independent statutory body within the Federal Reserve System. In no 
respect is it an agent or ``subdivision'' of the Board of Governors of 
the Federal Reserve System (``Board of Governors''). It was originally 
established by the Banking Act of 1933 and restructured in its present 
form by the Banking Act of 1935 and subsequent legislation in 1942 
(generally see 12 U.S.C. 263(a)). The FOMC's membership is composed of 
the seven members of the Board of Governors and five representatives of 
the Federal Reserve Banks who are selected annually in accordance with 
the procedures set forth in Section 12A of the Federal Reserve Act, 12 
U.S.C. 263(a). Members of the Board of Governors serve in an ex officio 
capacity on the FOMC by reason of their appointment as Members of the 
Board of Governors, not as a result of an appointment ``to such 
position'' (the FOMC) by the President. Representatives of the Reserve 
Banks serve on the FOMC not as a result of an appointment ``to such 
position'' by the President, but rather by virtue of their positions 
with the Reserve Banks and their selection pursuant to Section 12A of 
the Federal Reserve Act. It is clear therefore that the FOMC does not 
fall within the scope of an ``agency'' or ``subdivision'' as defined in 
the Sunshine Act and consequently is not subject to the provisions of 
that Act.
    As explained below, the Act would not require the FOMC to hold its 
meetings in open session even if the FOMC were covered by the Act. 
However, despite the conclusion reached that the Sunshine Act does not 
apply to the FOMC, the FOMC has determined that its procedures and 
timing of public disclosure already are conducted in accordance with the 
spirit of the Sunshine Act, as that Act would apply to deliberations of 
the nature engaged in by the FOMC.
    In the foregoing regard, the FOMC has noted that while the Act calls 
generally for open meetings of multi-member Federal agencies, 10 
specific exemptions from the open meeting requirement are provided to 
assure the ability of the Government to carry out its responsibilities. 
Among the exemptions provided is that which authorizes any agency 
operating under the Act to conduct closed meetings where the subject of 
a meeting involves information ``the premature disclosure of which 
would--in the case of an agency which regulates currencies, securities, 
commodities, or financial institutions, be likely to lead to significant 
financial speculation in currencies, securities, or commodities.''3
---------------------------------------------------------------------------

    3Government in the Sunshine Act, Pub. L. 94-409, sec. 3(a), 90 Stat. 
1242 (1976).

---------------------------------------------------------------------------

[[Page 799]]

    As to meetings closed under such exemption, the Act requires the 
maintenance of either a transcript, electronic recording or minutes and 
sets forth specified, detailed requirements as to the contents and 
timing of disclosure of certain portions or all of such minutes. The Act 
permits the withholding from the public of the minutes where disclosure 
would be likely to produce adverse consequences of the nature described 
in the relevant exemptions.
    The FOMC has reviewed the agenda of its monthly meetings for the 
past three years and has determined that all such meetings could have 
been closed pursuant to the exemption dealing with finanical speculation 
or other exemptions set forth in the Sunshine Act. The FOMC has further 
determined that virtually all of its substantive deliberations could 
have been preserved pursuant to the Act's minutes requirements and that 
such minutes could similarly have been protected against premature 
disclosure under the provisions of the Act.
    The FOMC's deliberations are currently reported by means of a 
document entitled ``Record of Policy Actions'' which is released to the 
public approximately one month after the meeting to which it relates. 
The Record of Policy Actions complies with the Act's minutes 
requirements in that it contains a full and accurate report of all 
matters of policy discussed and views presented, clearly sets forth all 
policy actions taken by the FOMC and the reasons therefor, and includes 
the votes by individual members on each policy action. The timing of 
release of the Record of Policy Actions is fully consistent with the 
Act's provisions assuring against premature release of any item of 
discussion in an agency's minutes that contains information of a 
sensitive financial nature. In fact, by releasing the comprehensive 
Record of Policy Actions to the public approximately a month after each 
meeting, the FOMC exceeds the publication requirements that would be 
mandated by the letter of the Sunshine Act.
    Recognizing the Congressional purpose underlying the enactment of 
the Sunshine Act, the FOMC has determined to continue its current 
practice and timing of public disclosures in the conviction that its 
operations thus conducted are consistent with the intent and spirit of 
the Sunshine Act.

(Pub. L. 94-409, 90 Stat. 1241-1242)

[42 FR 13300, Mar. 10, 1977]

[[Page 800]]



       SUBCHAPTER C--FEDERAL RESERVE SYSTEM LABOR RELATIONS PANEL




                        PARTS 290-299  [RESERVED]
[[Page 801]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected



[[Page 803]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 1997)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3202)
     XXIII  Department of Energy (Part 3301)

[[Page 804]]

      XXIV  Federal Energy Regulatory Commission (Part 3401)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Consumer Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)

[[Page 805]]

        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of Finance and Management, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)

[[Page 806]]

    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
        XI  United States Enrichment Corporation (Parts 1100--
                1199)
        XV  Office of the Federal Inspector for the Alaska Natural 
                Gas Transportation System (Parts 1500--1599)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)

[[Page 807]]

        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements

[[Page 808]]

        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)

[[Page 809]]

        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

[[Page 810]]

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)

[[Page 811]]

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Programs, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)

[[Page 812]]

       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)

[[Page 813]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)

[[Page 814]]

        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       301  Travel Allowances (Parts 301-1--301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

[[Page 815]]

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services, 
                General Administration (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  ACTION (Parts 1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)

[[Page 816]]

       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)

[[Page 817]]

        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)

[[Page 818]]

         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            Acts Requiring Publication in the Federal Register
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 819]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 1997)

                                                  CFR Title, Subtitle or
                     Agency                               Chapter

ACTION                                            45, XII
Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Finance and Management, Office of               7, XXX
  Food and Consumer Service                       7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alaska Natural Gas Transportation System, Office  10, XV
     of the Federal Inspector
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
Animal and Plant Health Inspection Service        7, III; 9, I

[[Page 820]]

Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Commerce Department                               44, IV
  Census Bureau                                   15, I`
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I

[[Page 821]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Defense Mapping Agency                          32, I
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Mapping Agency                            32, I
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Enrichment Corporation, United States             10, XI
Environmental Protection Agency                   5, LIV; 40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I

[[Page 822]]

  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Inspector for the Alaska Natural Gas      10, XV
     Transportation System, Office of
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Finance and Management, Office of                 7, XXX
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Consumer Service                         7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
     of Certain Employees
[[Page 823]]

  Relocation Allowances                           41, 302
  Travel Allowances                               41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  Mines, Bureau of                                30, VI

[[Page 824]]

  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, Agency for             22, II
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, Agency for           22, II; 48, 7
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Relations and Cooperative      29, II
       Programs, Bureau of
  Labor-Management Programs, Office of            29, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Relations and Cooperative        29, II
     Programs, Bureau of
Labor-Management Programs, Office of              29, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II

[[Page 825]]

Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
     Acquisition Regulation
[[Page 826]]

  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X

[[Page 827]]

Transportation, Office of                         7, XXXIII
Travel Allowances                                 41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
United States Enrichment Corporation              10, XI
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 829]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985'' published in seven separate 
volumes.

                                  1986

12 CFR
                                                                   51 FR
                                                                    Page
Chapter II
220  OTC margin stock list.........................................3939,
15757, 27519, 39643
221  OTC margin stock list.........................................3939,
15757, 27519, 39643
224  OTC margin stock list.........................................3939,
15757, 27519, 39643
225  Authority citation revised....................................36211
225.25  (b)(8) revised.............................................36211
    (b)(9) removed; (b) (10) and (11) footnotes 8 through 10 
redesignated as 12 through 14......................................36212
    (b)(13) revised; (b)(19) through (24) added....................40000
225.128  Removed...................................................36212
225.135  Removed...................................................36212
225  Appendix A amended............................................40969
226.23  (f)(2) revised.............................................45299
    Effective date corrected.......................................47106
226  Supplement I amended..........................................11424
    Supplement I corrected.........................................18876
227.11--227.16 (Subpart B)  Staff guidelines.......................39646
    Exemption granted in part......................................41763
265  Authority citation revised....................................18877
265.2  (c)(34) added................................................7056
    (a)(2) revised.................................................18876
    (b)(10) redesignated as (b)(11); new (b)(10) added.............19825
    (c)(35) and (f)(48) added......................................45877

                                  1987

12 CFR
                                                                   52 FR
                                                                    Page
Chapter II
220  OTC margin stock list.........................................3218,
15941, 28538, 41963
220.2  (r)(2)(iii) amended; (r)(3) added; (r) introductory text 
        republished................................................32292
220.3  (e)(4) added; eff. 1-25-88..................................48805
221  OTC margin stock list.........................................3218,
15941, 28538, 41963
221.3  (b) revised; (c) (i) and (ii) redesignated as (c) (1) and 
        (2); new (c)(1) revised....................................35683
224  OTC margin stock list.........................................3218,
15941, 28538, 41963
225.43  (a) revised................................................23023
    (c)(2) and (d) revised.........................................23024
225.123  (e)(4) removed............................................45161
226  Authority citation revised....................................43181
226.1  (a), (d)(4), and (e) revised................................43181
    Technical correction...........................................45611
226.17  (b) revised................................................48670
226.18  (f) and footnote 43 revised................................48670
226.19  Revised....................................................48670
226.20  (c) added..................................................48671
226.22  Footnote 45a redesignated as 45d...........................48670
226.30  Added......................................................43181
    Technical correction...........................................45611
226  Supplement I amended..........................................10878
    Appendix H amended.............................................48671

[[Page 830]]

227.14  Exemption granted in part...................................2400
261  Policy statement..............................................15707
261.4  (g) removed.................................................15300
261.8  Added.......................................................15300
265.1a  (a)(2) amended.............................................43318
265.2  (b) (10) and (11), (c) (26), (29) and (34), and (f) (26) 
        and (48) amended; (c) introductory text and (g) revised....43318
    (b)(7) revised.................................................48806

                                  1988

12 CFR
                                                                   53 FR
                                                                    Page
Chapter II
220  OTC margin stock list.........................................2999,
                                                     15195, 28189, 43679
    OTC margin stock list at 53 FR 15195 corrected.................17689
220.2  (r) introductory text republished; (r)(4) added.............30831
221  OTC margin stock list.........................................2999,
                                                     15195, 28189, 43679
    OTC margin stock list at 53 FR 15195 corrected.................17689
224  OTC margin stock list.........................................2999,
                                                     15195, 28189, 43679
    OTC margin stock list at 53 FR 15195 corrected.................17689
225.2  (a) through (l) redesignated as (b) through (g) and (i) 
        through (n); new (a) and (h) added; new (b) revised........37744
225.51--225.52 (Subpart F)  Added..................................37744
225  Appendices heading revised....................................37744
225.145  Added.....................................................37746
226  Determination..................................................3332
226.19  (b)(2)(viii) corrected.......................................467
226  Appendix H corrected............................................467
    Supplement I amended..........................................11050,
                                                                   11058
    Supplement I corrected.........................................13379
227.11--227.16 (Subpart B)  Staff guidelines.......................29225
227.14  Exemption granted in part..................................29223
229  Added.........................................................11837
    Revised........................................................19433
229.2  (r), (s), (z) and (dd) revised; interim.....................31292
    (z)(4) revised.................................................44324
229.11  Eff. to 9-1-90.............................................19372
229.12  Eff. 9-1-90................................................19372
229.16  (b)(2) footnote 1 added; interim...........................31292
    (b)(2) amended.................................................44324
229.30  (a)(1) revised; interim....................................31292
229.31  (a)(1) revised; interim....................................31292
229  Appendix A corrected...................................24251, 31416
    Appendixes A, C and E amended; interim.........................31293
    Appendix F added...............................................32356
    Appendix E amended.............................................44325
    Appendix F amended......................................44328, 51748
    Appendix F amended; correction.................................47524
261  Revised.......................................................20815
261.5  (d)(5) correctly revised....................................23383
265.2  (f)(26) amended; (f)(26)(iii) added..........................5152
    (b)(12) added..................................................11641
    (c)(36) added..................................................12510
    (b)(13) added..................................................15801
    (c)(18) revised; (c)(19) removed; (f)(17) amended..............22130

                                  1989

12 CFR
                                                                   54 FR
                                                                    Page
Chapter II
220  OTC margin stock list.........................................4254,
                                                     16357, 31647, 43952
221  OTC margin stock list.........................................4254,
                                                     16357, 31647, 43952
224  OTC margin stock list.........................................4254,
                                                     16357, 31647, 43952
225.2  (l) through (n) redesignated as (m) through (o); new (l) 
        added......................................................37302
225.25  (b)(9) added...............................................37301
225.126  (h) removed...............................................37302
225  Appendix A redesignated as Appendix B and amended; new 
        Appendix A added............................................4209
    Appendix B redesignated as Appendix C...........................4209
    Appendix A corrected...........................................12531
226  Authority citation revised....................................13864
    Determination..................................................50342
226.1  (a) amended.................................................13865
    (b) and (d)(2) revised; (c)(3) added...........................24686
226.2  (a)(15) and (a)(17)(iv) revised.............................13865

[[Page 831]]

226.5  (a) (1), (2), and footnote 7 republished; footnotes 8 and 9 
        revised; (a)(3) and (b)(3) added...........................13865
    Footnote 8 revised; (a)(4) and (b)(4) added....................24686
226.5a  Added......................................................13865
    (a)(3) revised.................................................24686
    (a)(3), (d)(2), (g)(2) (i), and (ii) corrected.................32954
226.5b  Added......................................................24686
226.6  (e) added...................................................24688
226.9  (d)(2) revised; (e) and (f) added...........................13867
    (c)(3) added...................................................24688
    (e)(1) and (f)(1) corrected....................................32954
226.14  (b) revised................................................13867
    (b) revised....................................................24688
226.15  Footnote 36 revised........................................24688
226.16  (b) introductory text republished; footnote 36a added......13867
    (d) added......................................................24688
    (d)(3) corrected; footnote 36b added...........................28665
226.28  (a)(1) amended; (d) added..................................13867
    (a) corrected..................................................32954
226  Supplement I amended...........................................9421
    Supplement I corrected.........................................13455
    Appendix G amended......................................13868, 24689
    Appendix I amended.............................................53539
229  Policy statement..............................................13839
229.2  (e)(7), (z)(5) and (cc) revised.............................13850
229.13  (e)(2) amended.............................................13850
229.16  (c)(3) amended.............................................13850
229.19  (e) revised................................................13850
229.31  (b) amended................................................13850
229.32  (a)(2)(ii) amended; (a)(2)(iii) redesignated as 
        (a)(2)(iv); new (a)(2)(iii) added..........................13850
229.34  (a)(1), (a) concluding text, (b) introductory text, (1), 
        and concluding text revised................................13850
229.36  Heading revised; (e) added; eff. 2-1-91....................32047
229.38  (d) amended................................................13850
    (d) redesignated as (d)(1); new (d) heading and (2) added; 
eff. 2-1-90........................................................32047
229  Appendixes A and E amended....................................13851
    Appendix E amended; eff. 2-1-90 and 2-1-91.....................32047
    Appendix F amended.............................................13838
262.2  (b) amended.................................................33183
262.3  (a), (c), (j)(1)(ii) amended; (j) (3) and (4) removed; 
        (j)(2) revised.............................................33183
265.2  (f)(49) added...............................................10139
    (c)(30) revised................................................38374

                                  1990

12 CFR
                                                                   55 FR
                                                                    Page
Chapter II
220  OTC margin stock list.....................2631, 18591, 31367, 46040
220.2  (i) through (y) redesignated as (k) through (aa); new 
        (q)(4), (5), (t)(3), (4)(iii) amended; new (i), (j), 
        (q)(6) and (t)(5) added....................................11159
220.4  (c)(1) amended..............................................11159
220.5  (g) added...................................................11159
220.8  (b)(1) introductory text revised; (b)(1)(i) through (iv); 
        (c) redesignated as (b)(1)(i)(A) through (iv)(3); new 
        (b)(1)(i) and (ii) added...................................11159
220.13  (a), (b) and (c) amended; (d) added........................11160
220.17  (a) and (b) amended; (c), (d), and (e) redesignated as 
        (e), (f), and (g); Heading, (a) heading, (b) heading, new 
        (e), (f), and (g) revised; new (c) and (d) added...........11160
220.18  (a) and (b) amended........................................11160
220.131  Added.....................................................29566
221  OTC margin stock list.....................2631, 18591, 31367, 46040
224  OTC margin stock list.....................2631, 18591, 31367, 46040
225  Authority citation revised.......................6790, 27771, 47743
225.4  (d) redesignated as (d)(1); new (d)(1) heading revised; 
        (d)(2) added...............................................47743
225.42  (a) redesignated as (a)(1) and amended; (a)(2) added.......47845
225.61--225.67 (Subpart G)  Added..................................27771
    Appendix A added; interim; eff. 1-30-91.................53617, 53612
225.71--225.73 (Subpart H)  Added; interim..........................6790
225  Appendix A amended............................................32832
    Appendix B amended.............................................32832

[[Page 832]]

    Appendix D added...............................................32832
226  Supplement I amended..........................................13106
    Corrected......................................................17750
    Preemption determination; eff. 10-1-91.........................31815
226.5b  (f) introductory text, (3) introductory text, and (vi) 
        introductory text republished; (f)(3)(i), (vi)(E), and (F) 
        revised; (f)(3)(vi)(G) removed.............................38312
    (f)(3)(i) corrected.....................................39538, 42148
226.9  (c)(3) revised..............................................38312
    (c)(3) corrected........................................39538, 42148
226  Appendix G amended............................................38312
228  Authority citation revised....................................26626
228.4  (f) revised; interim........................................26627
228.5  (a)(2) and (3) redesignated as (a)(3) and (4); new (a)(3), 
        (4), (c)(1), and (2) revised; new (a)(2), new (c)(3), and 
        (d) added; interim.........................................26627
228.6  Existing text designated as (a) and amended; (b) added; 
        interim....................................................26627
229.3  (a)(2) revised..............................................21855
229.12  (a), (b) introductory text, and (c)(1) introductory text 
        revised; (b)(3) removed; (b)(4) and (5) redesignated as 
        (3) and (4); new (b)(4) revised; (d) amended; (f) added; 
        interim....................................................50818
229.13  (h)(4) revised.............................................21855
229.30  (c) revised................................................21855
229.35  (a) revised................................................21855
229.36  (e) concluding text amended; eff. 2-1-91...................21855
229  Appendix F amended............................................11358
    Appendixes A and C amended.....................................21855
    Appendix E amended.............................................21856
    Appendixes C and E amended; interim............................50818
250.101--250.103  Redesignated as 208.125--208.127.................52987
250.104  Removed...................................................52987
261.10  Amended; interim; eff. 1-2-91..............................49877
264b.3  (a) revised.................................................3576
    (a) amended....................................................11360
265.2  (c)(18) revised.............................................30000
    (c)(20) amended................................................41185
    (b)(13) revised................................................50542

                                  1991

12 CFR
                                                                   56 FR
                                                                    Page
Chapter II
220  OTC margin stock list.....................3773, 19548, 35805, 55442
220.14  Heading and (b) revised....................................46110
221  OTC margin stock list.....................3773, 19548, 35805, 55442
221.3  (i)(1)(i), (ii) and (3) revised.............................46111
    (i)(1)(i) correctly designated.................................66120
221.124  Added.....................................................46228
224  OTC margin stock list.....................3773, 19548, 35805, 55442
225  Heading corrected..............................................1229
225.6  (a) amended.................................................38052
225  Appendix A amended............................................51156
226  Preemption determination.......................................3005
    Authority citation revised.....................................13754
    Supplement I amended...........................................13754
    Supplement I corrected..................................22200, 23993
    Appendix I amended.............................................51322
228.4  Regulation at 55 FR 26627 confirmed.........................26902
228.5  Regulation at 55 FR 26626 confirmed; (a)(3) and (c)(3) 
        revised....................................................26902
228.6  Regulation at 55 FR 26627 confirmed.........................26902
229.12  (a), (b) introductory text (4) and (c)(1) introductory 
        text revised; (d) amended and (f) revised; final............7801
    (a), (b) introductory text, (4), (c)(1) introductory text, (d) 
and (f) corrected..................................................66343
229  Appendixes C and E amended; final..............................7802
    Appendix E corrected...........................................66343
250.101  Regulation at 55 FR 52987 effective date corrected..........627
250.102  Regulation at 55 FR 52987 effective date corrected..........627
250.103  Regulation at 55 FR 52987 effective date corrected..........627
250.104  Regulation at 55 FR 52987 effective date corrected..........627
261.10  Regulation at 55 FR 49877 confirmed........................29412
262.3  (i)(2) amended..............................................38052
    (i)(2) corrected...............................................60056
263  Revised.......................................................38052
263.16  Corrected..................................................60056
265  Revised.......................................................25619
    Authority citation revised.....................................67153

[[Page 833]]

265.2  (c)(10) and (f)(7)(i) revised; (c)(24), (26) and (f)(7)(ii) 
        removed; (f)(50) and (51) added.............................6261
    (b)(14), (c)(37) and (f)(52) added..............................8687
    (c)(38) added; (f)(46)(iii) and (v) removed; (f)(46)(iv) and 
(vi) redesignated as (f)(46)(iii) and (iv); (f)(46)(ii) revised; 
(f)(53) added......................................................19576
    Regulation at 56 FR 19576 effective date corrected; (c)(38) 
corrected..........................................................23010
265.4  (a)(2) amended..............................................67154
265.5  (c)(2) revised..............................................67153
    (d)(1) introductory text and (2) introductory text amended.....67154
265.6  (a)(4), (c)(3), (5) and (d)(2) amended......................67154
265.7  Heading, introductory text, (a)(2), (4), (c)(2), (4)(i), 
        (d)(2), (3), (5), (7)(i), (e)(3) and (f)(2) amended; 
        (c)(6) added; (e)(5), (6) and (f)(10) revised; revised....67153, 
                                                                   67154
265.9  (b) revised.................................................67154
265.11  (a)(2), (3), (13), (15) introductory text, (c)(6), (9)(i) 
        and (d)(2) introductory text amended; (f) revised..........67154
268.101  (b) revised...............................................32955
268.1001--268.1004 (Subpart J)  Added..............................32955
268.1001  Revised..................................................64190
268.1002  Revised..................................................64191
271  Authority citation revised....................................23994
271.1  Revised.....................................................23994
271.2  (b) revised; (c) and (d) added..............................23994
271.4  (c) revised; (f) removed....................................23994
271.5  (b)(3) revised..............................................23995
271.6  (b) and (d) revised; (e) and (f) amended; (g) and (h) added
                                                                   23995
271.8  Added.......................................................23995
271  Appendix A added..............................................23996

                                  1992

12 CFR
                                                                   57 FR
                                                                    Page
Chapter II
220  OTC margin stock list.....................2997, 15220, 33101, 48939
221  OTC margin stock list.....................2997, 15220, 33101, 48939
224  OTC margin stock list.....................2997, 15220, 33101, 48939
225  Authority citation revised........21207, 22426, 43890, 60720, 62180
    Temporary exceptions...........................................54173
225.2  (g) through (o) redesignated as (h) through (p); new (g) 
        added......................................................41387
225.4  (f) added...................................................21207
    Regulation at 57 FR 21207 republished..........................22426
225.11  (f) added; interim.........................................13001
225.12  (f) added; interim.........................................13001
    (d) introductory text, (1) and (2) redesignated as (d)(1) 
introductory text, (i) and (ii); (d)(2) added......................28778
225.13  (a) introductory text and (b)(2) revised; (b)(4) and (5) 
        added; interim.............................................13003
225.14  (b)(3) added...............................................41642
225.23  (f)(2) introductory text republished; (f)(2)(i) revised....28779
225.25  Footnotes 7 through 14 redesignated as footnotes 8 through 
        15; (b)(5) introductory text, (i), (ii), (iii), (iv) 
        introductory text, (A) through (D), (v) and (vi) 
        redesignated as (b)(5)(i) introductory text, (A), (B), 
        (C), (D) introductory text, (1) through (4), (E) and (F); 
        new (b) (5) heading and (ii) added; (b)(5)(i) introductory 
        text, (D) introductory text, (3) and (F) revised...........20961
    Footnotes 3 through 15 redesignated as footnotes 4 through 16; 
(b)(4)(iv) amended; (b)(4)(v) and (15) revised; (b)(4)(vi) added 
                                                                   41387
225.61--225.67 (Subpart G)  Regulation at 55 FR 27771 compliance 
        date revised...................................................6
225.125  (h) revised...............................................30391
225.132  (c)(2) amended............................................28779
225.144  Removed....................................................9973
225  Appendix A amended.................2012, 43890, 60720, 62180, 62182
    Appendix D amended..............................................2013
226  Temporary exceptions..........................................53545
226.5b  (f)(2)(ii) and (iii) revised; (f)(2)(iv) added.............34681

[[Page 834]]

226  Supplement I corrected......................................81, 749
    Appendix I amended.............................................20400
227.11  (c)(1), (2) and (3) revised; (d) added.....................20401
229  Authority citation revised.............................36598, 36600
229.1  (a) revised.................................................36598
    (b)(3) revised; eff. 1-3-94....................................46972
229.2  (mm) redesignated as (pp); new (mm), (nn) and (oo) added; 
        eff. 1-3-94................................................46972
229.3  (a)(1) revised; (a) concluding text added...................36600
229.12  (a) revised; (f) amended; (f)(1)(ii) and (2) removed.......36601
229.13  (g)(1)(ii) through (v) removed; (g)(2) heading, (i), (ii) 
        and (3) redesignated as (g)(1)(ii) heading, (A), (B) and 
        (4); (b), (c) introductory text, (d) introductory text, 
        (e)(1), (f) introductory text, new (g)(1)(ii)(A), (B), 
        (h)(1), (3) and (4) amended; (g)(1) introductory text, (i) 
        and (h)(2) revised; new (g)(2) and (3) added................3279
    (b), (c) introductory text, (d) introductory text, (e)(1), (f) 
introductory text, (h)(1), (2) and (4) amended; (g)(2)(ii) and 
(3)(iii) revised...................................................36598
229.30  (c) introductory text revised; eff. 1-3-94.................46972
229.34  (c) and (d) redesignated as (d) and (e); heading, new (d) 
        and (e) revised; new (c) added; eff. 1-3-94................46972
229.36  (f) added; eff. 1-3-94.....................................46972
229.39  (d) redesignated as (e); new (d) added; eff. 1-3-94........46973
229  Appendixes C and E amended; interim............................3280
    Appendix E amended......................................36598, 36601
        Appendix E amended; eff. 1-3-94..........................46973--
                                                                   46975
    Appendix E corrected; eff. 1-3-94..............................52719
230  Added.........................................................43376
230.6  (a)(3) corrected............................................46480
230  Appendixes A and B corrected..................................46480
250  Authority citation revised....................................41644
250.166  Added.....................................................40598
250.241  Added.....................................................41644
262.3  (b)(1) concluding text redesignated in part as (b)(1)(i) 
        concluding text and (b)(1)(ii); (b)(1) introductory text 
        and (i) through (vi) redesignated as (b)(1)(i) 
        introductory text and (A) through (F); new (b)(1)(i) 
        concluding text, (ii) and (2) amended......................41642
262.25  (a)(1) amended.............................................41642
263  Authority citation revised.............................13001, 44888
263.50  (b)(7) and (8) amended; (b)(9) and (10) added; interim.....13001
    (b)(9) and (10) amended; (b)(11) through (14) added............44888
263.201--263.205 (Subpart H)  Added................................44888
264.735-4  Removed.................................................62183
264.735-8  Removed.................................................62183
264  Appendix A removed............................................62183
265  Authority citation revised.............................13002, 40600
265.6  Introductory text republished; (e) added.....................6789
    (b)(2) added; interim..........................................13002
265.7  (d)(8) added; interim.......................................13002
265.11  (c)(11)(v)(A) removed; (c)(11)(v)(B) and (C) redesignated 
        as (c)(11)(v)(A) and (B); (c)(11)(vi) revised..............11907
    (e)(11) removed; (e)(12) redesignated as (e)(11)...............40600

                                  1993

12 CFR
                                                                   58 FR
                                                                    Page
Chapter II
220  OTC margin stock list.....................6602, 25543, 39640, 54929
    Heading revised................................................50512
221  OTC margin stock list.....................6602, 25543, 39640, 54929
    Heading revised................................................50512
224  OTC margin stock list.....................6602, 25543, 39640, 54929
    Heading revised................................................50512
225  Authority citation revised........................4074, 7980, 47209
    Temporary exceptions...........................................42640
    Heading revised................................................50512
225.2  (k) revised...................................................473
    (k) and (l) revised.............................................4074
225.4  (g) added...................................................47209

[[Page 835]]

225.11  (f) revised.................................................6362
225.12  (f) revised.................................................6362
225.13  (a) and (b)(2) revised.......................................474
225.31  (d)(2)(ii) revised...........................................474
225.63  (a) amended................................................15077
225  appendix B amended..............................................474
    appendix A amended.......................................7980, 68739
    Appendixes A and D amended......................................7981
    Regulation at 57 FR 62180 confirmed............................28492
226  Authority citation revised....................................17084
    Heading revised................................................50512
226.15  (e) revised................................................40583
226.16  Footnotes 36a and 36b redesignated as Footnotes 36b and 
        36c........................................................40583
226.23  (e) revised................................................40583
226  Supplement I amended...................................17084, 17085
227  Heading revised...............................................50512
228  Heading revised...............................................50512
229  Heading revised...............................................50512
229.2  (cc) amended....................................................2
229  Appendixes A, B-2 and E amended...................................2
    appendix E amended.................................................3
230.2  (a) amended.................................................15081
230.4  (c)(1) amended..............................................15081
230.5  (a)(2)(ii) revised..........................................15081
230.8  (e) revised.................................................15081
230  appendix A amended............................................15082
245  Heading revised...............................................50512
262  Authority citation revised....................................47986
262.3  (b)(1)(i)(D) removed; (b)(1)(i)(E) and (F) redesignated as 
        (b)(1)(i)(D) and (E); (b)(2) amended; (b)(3) added; (j) 
        introductory text revised..................................47986
263  Authority citation revised.....................................6363
263.51  (c) revised.................................................6363
264b  Authority citation revised...................................57730
264b.3  (c) and (d) correctly revised; CFR correction..............38702
    (a) amended....................................................57730
265  Authority citation revised....................................26509
265.5  (c)(3) added................................................26509
265.6  (b)(2) revised; (f) added....................................6363
    (c)(5) removed.................................................26509
    (g) added......................................................53394
265.7  (d)(8) revised...............................................6363
    (c)(5) removed; (c)(6) redesignated as (c)(5)..................26509
265.9  (c)(4) amended; (c)(5) added................................65540
265.11  (d)(11) added...............................................6363
268  Revised; interim...............................................9518

                                  1994

12 CFR
                                                                   59 FR
                                                                    Page
Chapter II
220  OTC margin stock lists....................4549, 23124, 37651, 54381
    Authority  citation revised....................................53567
220.1  (b)(1) amended; (b)(3) added................................53567
220.2  (h) revised; (w) through (aa) redesignated as (x) through 
        (bb); new (w) added........................................53567
220.4  (c)(3) revised; (d) amended.................................53568
220.8  (b)(4) amended; (b)(1)(i) introductory text, (ii), (3), 
        (c)(2)(i) and (d) revised..................................53568
220.18  Redesignated as 220.19; new 220.18 added...................53568
220.19  Redesignated from 220.18...................................53568
221  OTC margin stock lists....................4549, 23124, 37651, 54381
224  OTC margin stock lists....................4549, 23124, 37651, 54381
225  Statement and order.....................................6531, 40202
    Authority  citation revised........22968, 29500, 62993, 63244, 65474
    Temporary  exceptions..........................................62562
225.4  (b)(1) revised; (b)(6) added................................22968
    (d)  removed; (e) through (g) redesignated as (d) through (f) 
                                                                   39679
225.7  Added.......................................................39679
    (b)(3) added; (c)(2) revised; eff.1-23-95......................65474
225.11  Introductory text revised; interim.........................54808
225.14  (i) revised; interim.......................................54808
225.15  Added; interim.............................................54808
225.23  Revised; interim...........................................54803
225.24  Revised; interim...........................................54805
225.62  (d), (e), (f) and (g) through (k) redesignated as (e), 
        (f), (g) and (i) through (m); new (d) and new (h) added....29500

[[Page 836]]

225.63  Heading and (a) revised; (b) and (c) redesignated (d) and 
        (e); new (b) and new (c) added.............................29500
225.64  Revised....................................................29501
225.65  (b) revised................................................29501
225.61--225.67 (Subpart  G) appendix A removed.....................29501
225.127  (a) through (d) amended; (f), (g) and (h) added; eff. 1-
        9-95.......................................................63713
225  appendix A amended.....................................62993, 63244
    appendix A  amended; appendix D revised; eff. 4-1-95...........65926
226  Order..........................................................6532
    Authority  citation revised....................................40204
226.15  (e)(3) and Footnote 36b added..............................40204
    (e)(4)  and Footnote 36c added.................................63715
226.16  Footnotes 36b and 36c redesignated as 36c and 36d..........40204
    Footnotes  36c and 36d redesignated as Footnotes 36d and 36e 
                                                                   63715
226.23  (e)(3) and Footnote 48(b) added............................40204
    (e)(4)  and Footnote 48c added.................................63715
229  Appendixes A and B-2 amended..................................48790
230  Determination.................................................24032
230.2  (a) and (h) amended.........................................52658
230  Supplement I added............................................40221
    Supplement  I amended..........................................52658
231  Added..........................................................4784
262.3  (b)(1)(i)(D) revised; interim...............................54809
263  Authority citation revised....................................65245
263.9  (a) and (b) revised; (e) added; eff. 1-18-95................65245
264b.3  (d) amended................................................12805
265.11  (c)(11)(v) revised.........................................22968
268  Revised.......................................................16098

                                  1995

12 CFR
                                                                   60 FR
                                                                    Page
Chapter II
220  OTC margin stock lists....................5845, 20005, 38948, 55184
221  OTC margin stock lists....................5845, 20005, 38948, 55184
224  OTC margin stock lists....................5845, 20005, 38948, 55184
225.7  (b)(4) added................................................20189
225.32  (a)(2) redesignated as (a)(3); new (a)(2) added............35121
225  appendix A amended........................8181, 45616, 46179, 46181
    Appendix A amended; interim....................................39230
    Appendixes A and D amended; interim............................39231
    appendix A amended; eff. 4-1-96................................66045
226.1  (d)(5) redesignated as (d)(6); (b) and new (d)(6) revised; 
        new (d)(5) added...........................................15471
226.2  (a)(17)(i) Footnote 3 revised...............................15471
226.5b  (f)(2) introductory text revised; (f)(4) added.............15471
226.23  (a)(3) Footnote 48 revised.................................15471
226.28  (b) amended................................................15471
226.31--226.33 (Subpart E)  Added..................................15471
226.31  (g) corrected..............................................29969
226.32  (b)(1)(iii) corrected......................................29969
226  Appendix H amended............................................15473
    Appendix K added...............................................15474
    Appendix L added...............................................15476
    Supplement I amended...............16776, 16777, 16778, 16779, 16780
    Appendix K corrected...........................................50400
228  Authority citation revised....................................22189
228.1  Removed.....................................................22201
228.2  Removed.....................................................22201
228.3  Removed; eff. 7-1-97........................................22201
228.4  Removed; eff. 7-1-97........................................22201
228.5  Removed; eff. 7-1-97........................................22201
228.6  Removed; eff. 7-1-97........................................22201
228.7  Removed; eff. 7-1-97........................................22201
228.8  Removed.....................................................22201
228.11--228.12 (Subpart A)  Added..................................22190
228.12  (h)(3) amended.............................................66050
228.21--228.29 (Subpart B)  Added..................................22191
228.27  (h) amended................................................66050
228.41--228.45 (Subpart C)  Added..................................22195
228.51 (Subpart D)  Added..........................................22197
    Removed; eff. 7-1-97...........................................22201
    (a) amended....................................................66050
228.100  Removed...................................................22201

[[Page 837]]

228  Appendix A added..............................................22198
    Appendix B added...............................................22200
229.1  (b)(2) revised..............................................51670
229.2  (e)(6), (s) and (ll) revised; (l) and (y) removed...........51670
229.12  Heading and (a) revised....................................51670
229.13  (a) introductory text added; (a)(1)(iii) revised...........51671
229.16  (b)(2) amended.............................................51671
229.17  Revised....................................................51671
229.19  (b) introductory text, (c)(4)(i), (e)(1)(ii) and (2)(ii) 
        revised....................................................51671
229.36  (e) revised................................................51671
229  Appendixes A, B-1, B-2 and C amended..........................51671
    appendix E revised.............................................51672
    Appendix F amended.............................................51703
230.4  (b)(6)(iii) amended; interim.................................5130
230.8  (c)(6)(ii) added; interim....................................5130
230  Appendix A amended; interim....................................5130
    Appendix B amended; interim.....................................5131
261a  Revised.......................................................3341
263  Authority citation revised....................................35682
263.300--263.305 (Subpart I)  Added................................35682
265.6  (b)(2) revised; (b)(3) added................................10307
265.11  (e)(12) added..............................................22257

                                  1996

12 CFR
                                                                   61 FR
                                                                    Page
Chapter II
220  OTC margin stock lists....................2667, 18495, 39556, 55555
    Authority citation revised.....................................60167
220.1  Revised.....................................................20390
220.2  Revised.....................................................20390
220.3  Revised.....................................................20392
220.4  Revised.....................................................20392
220.5  Revised.....................................................20394
220.6  Revised.....................................................20394
220.7  Revised.....................................................20394
220.8  Revised.....................................................20394
220.9  Revised.....................................................20395
220.10  Revised....................................................20395
220.11  Revised....................................................20395
220.12  Revised....................................................20395
220.13  Revised....................................................20396
220.14  Revised....................................................20396
220.15  Revised....................................................20396
220.16  Revised....................................................20396
220.17  Revised....................................................20397
220.18  Revised....................................................20397
220.19  Removed....................................................20398
220.106  Removed...................................................20398
220.107  Removed...................................................20398
220.109  Removed.............................................