[Title 12 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1998 Edition]
[From the U.S. Government Printing Office]


[[Page i]]

          12



          Banks and Banking




          PARTS 200 TO 219

                         Revised as of January 1, 1998

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT
          AS OF JANUARY 1, 1998

          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration
          as a Special Edition of
          the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1998



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



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                            Table of Contents



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

  Title 12:
    Chapter II--Federal Reserve System........................       3
  Finding Aids:
    Table of CFR Titles and Chapters..........................     407
    Alphabetical List of Agencies Appearing in the CFR........     423
    List of CFR Sections Affected.............................     433



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   Cite this Code:  CFR

   To cite the regulations in this volume use title, part and
   section number. Thus,  12 CFR 201.1 refers to title 12, part
   201, 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, 1998), 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 
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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 or e-mail 
[email protected].

SALES

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ELECTRONIC SERVICES

    The texts of the Code of Federal Regulations, The United States 
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of Presidential Documents and the 1995 Privacy Act Compilation are 
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For more information, contact Electronic Information Dissemination 
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293-6498 (toll-free). E-mail, [email protected].

[[Page vii]]

    The Office of the Federal Register maintains a free electronic 
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Delivery), for public law numbers, Federal Register finding aids, and 
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Administration's Fax-on-Demand system. Phone, 301-713-6905.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

January 1, 1998.



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                               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, 1998.

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

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

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                       TITLE 12--BANKS AND BANKING




                  (This book contains parts 200 to 219)

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                                                                    Part

Chapter ii--Federal Reserve System..........................         201


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.

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                   CHAPTER II--FEDERAL RESERVE SYSTEM




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

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

Part                                                                Page
201             Extensions of credit by Federal Reserve 
                    banks (Regulation A)....................           5
202             Equal credit opportunity (Regulation B).....          15
203             Home mortgage disclosure (Regulation C).....          70
204             Reserve requirements of depository 
                    institutions (Regulation D).............          93
205             Electronic fund transfers (Regulation E)....         126
206             Limitations on interbank liabilities 
                    (Regulation F)..........................         158
207             Securities credit by persons other than 
                    banks, brokers, or dealers (Regulation 
                    G)......................................         162
208             Membership of State banking institutions in 
                    the Federal Reserve System (Regulation 
                    H)......................................         177
209             Issue and cancellation of capital stock of 
                    Federal Reserve banks (Regulation I)....         270
210             Collection of checks and other items by 
                    Federal Reserve banks and funds 
                    transfers through Fedwire (Regulation J)         275
211             International banking operations (Regulation 
                    K)......................................         313
212             Management official interlocks..............         353
213             Consumer leasing (Regulation M).............         357
214             Relations with foreign banks and bankers 
                    (Regulation N)..........................         382
215             Loans to executive officers, directors, and 
                    principal shareholders of member banks 
                    (Regulation O)..........................         384
216             Security procedures (Regulation P)..........         397
217             Prohibition against the payment of interest 
                    on demand deposits (Regulation Q).......         398
219             Reimbursement for providing financial 
                    records; recordkeeping requirements for 
                    certain financial records (Regulation S)         399

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.

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  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 201--EXTENSIONS OF CREDIT BY FEDERAL RESERVE BANKS (REGULATION A)--Table of Contents




Sec.
201.1  Authority, scope and purpose.
201.2  Definitions.
201.3  Availability and terms.
201.4  Limitations on availability and assessments.
201.5  Advances and discounts.
201.6  General requirements.
201.7  Branches and agencies.
201.8  Federal Intermediate Credit Banks.
201.9  No obligation to make advances or discounts.
201.51  Adjustment credit for depository institutions.
201.52  Extended credit for depository institutions.

                             Interpretations

201.104  Eligibility of consumer loans and finance company paper.
201.107  Eligibility of demand paper for discount and as security for 
          advances by Reserve Banks.
201.108  Obligations eligible as collateral for advances.
201.109  Eligibility for discount of mortgage company notes.
201.110  Goods held by persons employed by owner.

    Authority:  12 U.S.C. 343 et seq., 347a, 347b, 347c, 347d, 348 et 
seq., 357, 374, 374a and 461.

    Source:  45 FR 54010, Aug. 14, 1980, unless otherwise noted.



Sec. 201.1  Authority, scope and purpose.

    (a) Authority and scope. This part is issued under the authority of 
sections 10A, 10B, 13, 13A, and 19 of the FRA (12 U.S.C. 347a, 347b, 343 
et seq., 347c, 348 et seq., 374, 374a, and 461), other provisions of the 
FRA, and section 7(b) of the International Banking Act of 1978 (12 
U.S.C. 347d) and relates to extensions of credit by Federal Reserve 
Banks to depository institutions and others.
    (b) Purpose. This part establishes rules under which Federal Reserve 
Banks may extend credit to depository institutions and others. Extending 
credit to depository institutions to accommodate commerce, industry, and 
agriculture is a principal function of Federal Reserve Banks. While open 
market operations are the primary means of affecting the overall supply 
of reserves, the lending function of the Federal Reserve Banks is an 
effective method of supplying reserves to meet the particular credit 
needs of individual depository institutions. The lending functions of 
the Federal Reserve System are conducted with due regard to the basic 
objectives of monetary policy and the maintenance of a sound and orderly 
financial system.
[58 FR 68512, Dec. 28, 1993]



Sec. 201.2  Definitions.

    For purposes of this part, the following definitions shall apply:

    (a) Appropriate Federal banking agency has the same meaning as in 
section 3 of the FDI Act (12 U.S.C. 1813(q)).
    (b) Critically undercapitalized insured depository institution means 
any insured depository institution as defined in section 3 of the FDI 
Act (12 U.S.C. 1813(c)(2)) that is deemed to be critically 
undercapitalized under section 38 of the FDI Act (12 U.S.C. 
1831o(b)(1)(E)) and the implementing regulations.
    (c) (1) Depository institution means an institution that maintains 
reservable transaction accounts or nonpersonal time deposits and is:
    (i) An insured bank as defined in section 3 of the FDI Act (12 
U.S.C. 1813(h)) or a bank which is eligible to make application to 
become an insured bank under section 5 of such Act (12 U.S.C. 1815);
    (ii) A mutual savings bank as defined in section 3 of the FDI Act 
(12 U.S.C. 1813(f)) or a bank which is eligible to make application to 
become an insured bank under section 5 of such Act (12 U.S.C. 1815);
    (iii) A savings bank as defined in section 3 of the FDI Act (12 
U.S.C. 1813(g)) or a bank which is eligible to make application to 
become an insured bank under section 5 of such Act (12 U.S.C. 1815);
    (iv) An insured credit union as defined in section 101 of the 
Federal Credit Union Act (12 U.S.C. 1752(7)) or a credit

[[Page 6]]

union which is eligible to make application to become an insured credit 
union pursuant to section 201 of such Act (12 U.S.C. 1781);
    (v) A member as defined in section 2 of the Federal Home Loan Bank 
Act (12 U.S.C. 1422(4)); or
    (vi) A savings association as defined in section 3 of the FDI Act 
(12 U.S.C. 1813(b)) which is an insured depository institution as 
defined in section 3 of the Act (12 U.S.C. 1813(c)(2)) or is eligible to 
apply to become an insured depository institution under section 5 of the 
Act (12 U.S.C. 1815(a)).
    (2) The term depository institution does not include a financial 
institution that is not required to maintain reserves under Regulation D 
(12 CFR part 204) because it is organized solely to do business with 
other financial institutions, is owned primarily by the financial 
institutions with which it does business, and does not do business with 
the general public.
    (d) Liquidation loss means the loss that any deposit insurance fund 
in the FDIC would have incurred if the FDIC had liquidated the 
institution:
    (1) In the case of an undercapitalized insured depository 
institution, as of the end of the later of:
    (i) Sixty days:
    (A) In any 120-day period;
    (B) During which the institution was an undercapitalized insured 
depository institution; and
    (C) During which advances or discounts were outstanding to the 
depository institution from any Federal Reserve Bank; or
    (ii) The 60 calendar day period following the receipt by a Federal 
Reserve Bank of a written certification from the Chairman of the Board 
of Governors or the head of the appropriate Federal banking agency that 
the institution is viable.
    (2) In the case of a critically undercapitalized insured depository 
institution, as of the end of the 5-day period beginning on the date the 
institution became a critically undercapitalized insured depository 
institution.
    (e) Increased loss means the amount of loss to any deposit insurance 
fund in the FDIC that exceeds the liquidation loss due to:
    (1) An advance under section 10B(1)(a) of the FRA that is 
outstanding to an undercapitalized or critically undercapitalized 
insured depository institution without payment having been demanded as 
of the end of the periods specified in paragraphs (d)(1) and (2) of this 
section; or
    (2) An advance under section 10B(1)(a) of the Federal Reserve Act 
that is made after the end of such periods.
    (f) Excess loss means the lesser of the increased loss or that 
portion of the increased loss equal to the lesser of:
    (1) The loss the Board of Governors or any Federal Reserve Bank 
would have incurred on the amount by which advances under section 
10B(1)(a) exceed the amount of advances outstanding at the end of the 
periods specified in paragraphs (d)(1) and (2) of this section if those 
increased advances had been unsecured; or
    (2) The interest received on the amount by which the advances under 
section 10B(1)(a) exceed the amount of advances outstanding, if any, at 
the end of the periods specified in paragraphs (d)(1) and (2) of this 
section.
    (g) Transaction account and nonpersonal time deposit have the 
meanings specified in Regulation D (12 CFR part 204).
    (h) Undercapitalized insured depository institution means any 
insured depository institution as defined in section 3 of the FDI Act 
(12 U.S.C. 1813(c)(2)) that:
    (1) Is not a critically undercapitalized insured depository 
institution; and
    (2) (i) Is deemed to be undercapitalized under section 38 of the FDI 
Act (12 U.S.C. 1831o(b)(1)(C)) and the implementing regulations; or
    (ii) Has received from its appropriate Federal banking agency a 
composite CAMEL rating of 5 under the Uniform Financial Institutions 
Rating System (or an equivalent rating by its appropriate Federal 
banking agency under a comparable rating system) as of the most recent 
examination of such institution.
    (i) Viable, with respect to a depository institution, means that the 
Board of Governors or the appropriate Federal banking agency has 
determined,

[[Page 7]]

giving due regard to the economic conditions and circumstances in the 
market in which the institution operates, that the institution is not 
critically undercapitalized, is not expected to become critically 
undercapitalized, and is not expected to be placed in conservatorship or 
receivership. Although there are a number of criteria that may be used 
to determine viability, the Board of Governors believes that ordinarily 
an undercapitalized insured depository institution is viable if the 
appropriate Federal banking agency has accepted a capital restoration 
plan for the depository institution under 12 U.S.C. 1831o(e)(2) and the 
depository institution is complying with that plan.
[58 FR 68512, Dec. 28, 1993]



Sec. 201.3  Availability and terms.

    (a) Adjustment credit. Federal Reserve Banks extend adjustment 
credit on a short-term basis to depository institutions to assist in 
meeting temporary requirements for funds or to cushion more persistent 
shortfalls of fundspending an orderly adjustment of a borrowing 
institution's assets and liabilities. Such credit generally is available 
only for appropriate purposes and after reasonable alternative sources 
of funds have been fully used, including credit from special industry 
lenders such as Federal Home Loan Banks, the National Credit Union 
Administration's Central Liquidity Facility, and corporate central 
credit unions. Adjustment credit is usually granted at the basic 
discount rate, but under certain circumstances a special rate or rates 
above the basic discount rate may be applied.
    (b) Seasonal credit. Federal Reserve Banks extend seasonal credit 
for periods longer than those permitted under adjustment credit to 
assist smaller depository institutions in meeting regular needs for 
funds arising from expected patterns of movement in their deposits and 
loans. A special rate or rates at or above the basic discount rate may 
be applied to seasonal credit.
    (1) Seasonal credit is only available if:
    (i) The depository institution's seasonal needs exceed a threshold 
that the institution is expected to meet from other sources of liquidity 
(this threshold is calculated as certain percentages, established by the 
Board of Governors, of the institution's average total deposits in the 
preceding calendar year);
    (ii) The Federal Reserve Bank is satisfied that the institution's 
qualifying need for funds is seasonal and will persist for at least four 
weeks; and
    (iii) Similar assistance is not available from special industry 
lenders.
    (2) The Board may establish special terms for seasonal credit when 
depository institutions are experiencing unusual seasonal demands for 
credit in a period of liquidity strain.
    (c) Extended credit. Federal Reserve Banks extend credit to 
depository institutions under extended credit arrangements where similar 
assistance is not reasonably available from other sources, including 
special industry lenders. Such credit may be provided where there are 
exceptional circumstances or practices affecting a particular depository 
institution including sustained deposit drains, impaired access to money 
market funds, or sudden deterioration in loan repayment performance. 
Extended credit may also be provided to accommodate the needs of 
depository institutions, including those with longer term asset 
portfolios, that may be experiencing difficulties adjusting to changing 
money market conditions over a longer period, particularly at times of 
deposit disintermediation. A special rate or rates above the basic 
discount rate may be applied to extended credit.
    (d) Emergency credit for others. In unusual and exigent 
circumstances, a Federal Reserve Bank may, after consultation with the 
Board of Governors, advance credit to individuals, partnerships, and 
corporations that are not depository institutions if, in the judgment of 
the Federal Reserve Bank, credit is not available from other sources and 
failure to obtain such credit would adversely affect the economy. The 
rate applicable to such credit will be above the highest rate in effect 
for advances to depository institutions. Where the collateral used to 
secure such credit consists of assets other than obligations of, or 
fully guaranteed as to principal and interest by, the United States or 
an agency thereof, an

[[Page 8]]

affirmative vote of five or more members of the Board of Governors is 
required before credit may be extended.
[58 FR 68513, Dec. 28, 1993]



Sec. 201.4  Limitations on availability and assessments.

    (a) Advances to or discounts for undercapitalized insured depository 
institutions. A Federal Reserve Bank may make or have outstanding 
advances to or discounts for a depository institution that it knows to 
be an undercapitalized insured depository institution, only:
    (1) If, in any 120-day period, advances or discounts from any 
Federal Reserve Bank to that depository institution are not outstanding 
for more than 60 days during which the institution is an 
undercapitalized insured depository institution; or
    (2) During the 60 calendar days after the receipt of a written 
certification from the Chairman of the Board of Governors or the head of 
the appropriate Federal banking agency that the borrowing depository 
institution is viable; or
    (3) After consultation with the Board of Governors.\1\
---------------------------------------------------------------------------


    \1\ In unusual circumstances, when prior consultation with the Board 
is not possible, a Federal Reserve Bank should consult with the Board as 
soon as possible after extending credit that requires consultation under 
this paragraph.
---------------------------------------------------------------------------

    (b) Advances to or discounts for critically undercapitalized insured 
depository institutions. A Federal Reserve Bank may make or have 
outstanding advances to or discounts for a depository institution that 
it knows to be a critically undercapitalized insured depository 
institution only:
    (1) During the 5-day period beginning on the date the institution 
became a critically undercapitalized insured depository institution; or
    (2) After consultation with the Board of Governors.\2\
---------------------------------------------------------------------------


    \2\ See footnote 1 in Sec.  201.4(a)(3).
---------------------------------------------------------------------------

    (c) Assessments. The Board of Governors will assess the Federal 
Reserve Banks for any amount that it pays to the FDIC due to any excess 
loss. Each Federal Reserve Bank shall be assessed that portion of the 
amount that the Board of Governors pays to the FDIC that is attributable 
to an extension of credit by that Federal Reserve Bank, up to one 
percent of its capital as reported at the beginning of the calendar year 
in which the assessment is made. The Board of Governors will assess all 
of the Federal Reserve Banks for the remainder of the amount it pays to 
the FDIC in the ratio that the capital of each Federal Reserve Bank 
bears to the total capital of all Federal Reserve Banks at the beginning 
of the calendar year in which the assessment is made, provided, however, 
that if any assessment exceeds 50 percent of the total capital and 
surplus of all Federal Reserve Banks, whether to distribute the excess 
over such 50 percent shall be made at the discretion of the Board of 
Governors.
    (d) Information. Before extending credit a Federal Reserve Bank 
should ascertain if an institution is an undercapitalized insured 
depository institution or a critically undercapitalized insured 
depository institution.
[58 FR 68514, Dec. 28, 1993]



Sec. 201.5  Advances and discounts.

    (a) Federal Reserve Banks may lend to depository institutions either 
through advances secured by acceptable collateral or through the 
discount of certain types of paper. Credit extended by the Federal 
Reserve Banks generally takes the form of an advance.
    (b) Federal Reserve Banks may make advances to any depository 
institution if secured to the satisfaction of the Federal Reserve Bank. 
Satisfactory collateral generally includes United States government and 
Federal agency securities, and, if of acceptable quality, mortgage notes 
covering 1-4 family residences, State and local government securities, 
and business, consumer and other customer notes.
    (c) If a Federal Reserve Bank concludes that a depository 
institution will be better accommodated by the discount of paper than by 
an advance, it may discount any paper endorsed by the depository 
institution that meets therequirements specified in the FRA.

[[Page 9]]



Sec. 201.6  General requirements.

    (a) Credit for capital purposes. Federal Reserve credit is not a 
substitute for capital.
    (b) Compliance with law and regulation. All credit extended under 
this part shall comply with applicable requirements of law and of this 
part. Each Federal Reserve Bank:
    (1) Shall keep itself informed of the general character and amount 
of the loans and investments of depository institutions with a view to 
ascertaining whether undue use is being made of depository institution 
credit for the speculative carrying of or trading in securities, real 
estate, or commodities, or for any other purpose inconsistent with the 
maintenance of sound credit conditions; and
    (2) Shall consider such information in determining whether to extend 
credit.
    (c) Information. A Federal Reserve Bank shall require any 
information it believes appropriate or desirable to insure that paper 
tendered as collateral for advances or for discount is acceptable and 
that the credit provided is used in a manner consistent with this part.
    (d) Indirect credit for others. No depository institution shall act 
as the medium or agent of another depository institution in receiving 
Federal Reserve credit except with the permission of the Federal Reserve 
Bank extending credit.
[58 FR 68514, Dec. 28, 1993]



Sec. 201.7  Branches and agencies.

    Except as may be otherwise provided, this part shall be applicable 
to United States branches and agencies of foreign banks subject to 
reserve requirements under Regulation D (12 CFR part 204) in the same 
manner and to the same extent as depository institutions.
[58 FR 68514, Dec. 28, 1993]



Sec. 201.8  Federal Intermediate Credit Banks.

    A Federal Reserve Bank may discount for any Federal Intermediate 
Credit Bank agricultural paper or notes payable to and bearing the 
endorsement of the Federal Intermediate Credit Bank that cover loans or 
advances made under subsections (a) and (b) of section 2.3 of the Farm 
Credit Act of 1971 (12 U.S.C. 2074) and that are secured by paper 
eligible for discount by Federal Reserve Banks. Any paper so discounted 
shall have a period remaining to maturity at the time of discount of not 
more than nine months.
[58 FR 68514, Dec. 28, 1993]



Sec. 201.9  No obligation to make advances or discounts.

    A Federal Reserve Bank shall have no obligation to make, increase, 
renew, or extend any advance or discount to any depository institution.
[58 FR 68514, Dec. 28, 1993]



Sec. 201.51  Adjustment credit for depository institutions.

    The rates for adjustment credit provided to depository institutions 
under Sec. 201.3(a) are:

                                                                        
------------------------------------------------------------------------
       Federal Reserve Bank         Rate             Effective          
------------------------------------------------------------------------
Boston...........................    5.00  February 1, 1996.            
New York.........................    5.00  January 31, 1996.            
Philadelphia.....................    5.00  January 31, 1996.            
Cleveland........................    5.00  January 31, 1996.            
Richmond.........................    5.00  February 1, 1996.            
Atlanta..........................    5.00  January 31, 1996.            
Chicago..........................    5.00  February 1, 1996.            
St. Louis........................    5.00  February 5, 1996.            
Minneapolis......................    5.00  January 31, 1996.            
Kansas City......................    5.00  February 1, 1996.            
Dallas...........................    5.00  January 31, 1996.            
San Francisco....................    5.00  January 31, 1996.            
------------------------------------------------------------------------

[Reg. A, 61 FR 5926, Feb. 15, 1996]



Sec. 201.52  Extended credit for depository institutions.

    (a) Seasonal credit. The rate for seasonal credit extended to 
depository institutions under Sec. 201.3(b) is a flexible rate that 
takes into account rates on market sources of funds, but in no case will 
the rate charged be less than the rate for adjustment credit as set out 
in Sec. 201.51.
    (b) Extended credit. For extended credit to depository institutions 
under Sec. 201.3(c), for credit outstanding for more than 30 days, a 
flexible rate will be charged that takes into account rates on market 
sources of funds, but in no case will the rate charged be less than the 
rate for adjustment credit, as set out in Sec. 201.51, plus one-half 
percentage point. At the discretion of the

[[Page 10]]

Federal Reserve Bank, the 30-day time period may be shortened.
[Reg. A, 59 FR 29538, June 8, 1994, as amended at 59 FR 60700, Nov. 28, 
1994]09

                             Interpretations



Sec. 201.104  Eligibility of consumer loans and finance company paper.

    (a) The Board of Governors has clarified and modified its position 
with respect to the eligibility of consumer loans and finance company 
paper for discount with and as collateral for advances by the reserve 
banks.
    (b) Section 13, paragraph 2, of the Federal Reserve Act authorizes a 
Federal Reserve Bank, under certain conditions, to discount for member 
banks

    * * * notes, drafts, and bills of exchange arising out of actual 
commercial transactions; that is, notes, drafts, and bills of exchange 
issued or drawn for agricultural, industrial, or commercial purposes, or 
the proceeds of which have been used, or are to be used, for such 
purposes, the Board of Governors of the Federal Reserve System to have 
the right to determine or define the character of the paper thus 
eligible for discount, within the meaning of this Act.

    (c) It continues to be the opinion of the Board that borrowing for 
the purpose of purchasing goods is borrowing for a commercial purpose, 
whether the borrower intends to use the goods himself or to resell them. 
Hence, loans made to enable consumers to purchase automobiles or other 
goods should be included under commercial, agricultural, and industrial 
paper within the meaning of the Federal Reserve Act, and as such are 
eligible for discounting with the Reserve Banks and as security for 
advances from the Reserve Banks under section 13, paragraph 8, of the 
Federal Reserve Act as long as they conform to requirements with respect 
to maturity and other matters. This applies equally to loans made 
directly by banks to consumers and to paper accepted by banks from 
dealers or finance companies. It also applies to notes of finance 
companies themselves as long as the proceeds of such notes are used to 
finance the purchase of consumer goods or for other purposes which are 
eligible within the meaning of the Federal Reserve Act.
    (d) If there is any question as to whether the proceeds of a note of 
a finance company have been or are to be used for a commercial, 
agricultural, or industrial purpose, a financial statement of the 
finance company reflecting an excess of notes receivable which appear 
eligible for rediscount (without regard to maturity) over total current 
liabilities (i.e., notes due within 1 year) may be taken as an 
indication of eligibility. Where information is lacking as to whether 
direct consumer loans by a finance company are for eligible purposes, it 
may be assumed that 50 percent of such loans are ``notes receivable 
which appear eligible for rediscount''. In addition, that language 
should be regarded as including notes given for the purchase of mobile 
homes that are acquired by a finance company from a dealer-seller of 
such homes.
    (e) The principles stated above apply not only to notes of a finance 
company engaged in making consumer loans but also to notes of a finance 
company engaged in making loans for other eligible purposes, including 
business and agricultural loans. Under section 13a of the Federal 
Reserve Act, paper representing loans to finance the production, 
marketing, and carrying of agricultural products or the breeding, 
raising, fattening, or marketing of livestock is eligible for discount 
if the paper has a maturity of not exceeding 9 months. Consequently, a 
note of a finance company the proceeds of which are used by it to make 
loans for such purposes is eligible for discount or as security for a 
Federal Reserve advance, and such a note, unlike the note of a finance 
company making consumer loans, may have a maturity of up to 9 months.
[37 FR 4701, Mar. 4, 1972]



Sec. 201.107  Eligibility of demand paper for discount and as security for advances by Reserve Banks.

    (a) The Board of Governors has reconsidered a ruling made in 1917 
that demand notes are ineligible for discount under the provisions of 
the Federal Reserve Act. (1917 Federal Reserve Bulletin 378.)
    (b) The basis of that ruling was the provision in the second 
paragraph of section 13 of the Federal Reserve Act

[[Page 11]]

that notes, drafts, and bills of exchange must have a maturity at the 
time of discount of not more than 90 days, exclusive of grace. The 
ruling stated that

    a demand note or bill is not eligible under the provisions of the 
act, since it is not in terms payable within the prescribed 90 days, 
but, at the option of the holder, may not be presented for payment until 
after that time.

    (c) It is well settled as a matter of law, however, that demand 
paper is due and payable on the date of its issue. The generally 
accepted legal view is stated in Beutel's Brannan on Negotiable 
Instruments Law, at page 305, as follows:

    The words on demand serve the same purpose as words making 
instruments payable at a specified time. They fix maturity of the 
obligation and do not make demand necessary, but mean that the 
instrument is due, payable and matured when made and delivered.

    (d) Accordingly, the Board has concluded that, since demand paper is 
due and payable on the date of its issue, it satisfies the maturity 
requirements of the statute. Demand paper which otherwise meets the 
eligibility requirements of the Federal Reserve Act and this part 
Regulation A, therefore, is eligible for discount and as security for 
advances by Reserve Banks.
[31 FR 5443, Apr. 16, 1966]



Sec. 201.108  Obligations eligible as collateral for advances.

    (a) Section 3(a) of Pub. L. 90-505, approved September 21, 1968, 
amended the eighth paragraph of section 13 of the Federal Reserve Act 
(12 U.S.C. 347) to authorize advances thereunder to member banks 
``secured by such obligations as are eligible for purchase under section 
14(b) of this Act.'' The relevant part of such paragraph had previously 
referred only to ``notes * * * eligible * * * for purchase'', which the 
Board had construed as not including obligations generally regarded as 
securities. (See 1962 Federal Reserve Bulletin 690, Sec. 201.103(d).)
    (b) Under section 14(b) direct obligations of, and obligations fully 
guaranteed as to principal and interest by, the United States are 
eligible for purchase by Reserve Banks. Such obligations include 
certificates issued by the trustees of Penn Central Transportation Co. 
that are fully guaranteed by the Secretary of Transportation. Under 
section 14(b) direct obligations of, and obligations fully guaranteed as 
to principal and interest by, any agency of the United States are also 
eligible for purchase by Reserve Banks. Following are the principal 
agency obligations eligible as collateral for advances:
    (1) Federal Intermediate Credit Bank debentures;
    (2) Federal Home Loan Bank notes and bonds;
    (3) Federal Land Bank bonds;
    (4) Bank for Cooperative debentures;
    (5) Federal National Mortgage Association notes, debentures and 
guaranteed certificates of participation;
    (6) Obligations of or fully guaranteed by the Government National 
Mortgage Association;
    (7) Merchant Marine bonds;
    (8) Export-Import Bank notes and guaranteed participation 
certificates;
    (9) Farmers Home Administration insured notes;
    (10) Notes fully guaranteed as to principal and interest by the 
Small Business Administration;
    (11) Federal Housing Administration debentures;
    (12) District of Columbia Armory Board bonds;
    (13) Tennessee Valley Authority bonds and notes;
    (14) Bonds and notes of local urban renewal or public housing 
agencies fully supported as to principal and interest by the full faith 
and credit of the United States pursuant to section 302 of the Housing 
Act of 1961 (42 U.S.C. 1421a(c), 1452(c)).
    (15) Commodity Credit Corporation certificates of interest in a 
price-support loan pool.
    (16) Federal Home Loan Mortgage Corporation notes, debentures, and 
guaranteed certificates of participation.
    (17) U.S. Postal Service obligations.
    (18) Participation certificates evidencing undivided interests in 
purchase contracts entered into by the General Services Administration.
    (19) Obligations entered into by the Secretary of Health, Education, 
and

[[Page 12]]

Welfare under the Public Health Service Act, as amended by the Medical 
Facilities Construction and Modernization Amendments of 1970.
    (20) Obligations guaranteed by the Overseas Private Investment 
Corp., pursuant to the provisions of the Foreign Assistance Act of 1961, 
as amended.
    (c) Nothing less than a full guarantee of principal and interest by 
a Federal agency will make an obligation eligible. For example, mortgage 
loans insured by the Federal Housing Administration are not eligible 
since the insurance contract is not equivalent to an unconditional 
guarantee and does not fully cover interest payable on the loan. 
Obligations of international institutions, such as the Inter-American 
Development Bank and the International Bank for Reconstruction and 
Development, are also not eligible, since such institutions are not 
agencies of the United States.
    (d) Also eligible for purchase under section 14(b) are ``bills, 
notes, revenue bonds, and warrants with a maturity from date of purchase 
of not exceeding 6 months, issued in anticipation of the collection of 
taxes or in anticipation of the receipt of assured revenues by any 
State, county, district, political subdivision, or municipality in the 
continental United States, including irrigation, drainage and 
reclamation districts.''3 In determining the eligibility of 
such obligations as collateral for advances, but the Reserve Bank will 
satisfy itself that sufficient tax or other assured revenues earmarked 
for payment of such obligations will be available for that purpose at 
maturity, or within 6 months from the date of the advance if no maturity 
is stated. Payments due from Federal, State or other governmental units 
may, in the Reserve Bank's discretion, be regarded as ``other assured 
revenues''; but neither the proceeds of a prospective issue of 
securities nor future tolls, rents or similar collections for the 
voluntary use of government property for non-governmental purposes will 
normally be so regarded. Obligations with original maturities exceeding 
1 year would not ordinarily be self-liquidating as contemplated by the 
statute, unless at the time of issue provision is made for a redemption 
or sinking fund that will be sufficient to pay such obligations at 
maturity.
---------------------------------------------------------------------------


    \3\ Paragraph 3 of section 1 of the Federal Reserve Act (12 U.S.C. 
221) defines the continental United States to mean ``the States of the 
United States and the District of Columbia'', thus including Alaska and 
Hawaii.
---------------------------------------------------------------------------

[Reg. A, 33 FR 17231, Nov. 21, 1968, as amended at 34 FR 1113, Jan. 24, 
1969; 34 FR 6417, Apr. 12, 1969; 36 FR 8441, May 6, 1971; 37 FR 24105, 
Nov. 14, 1972; 43 FR 53709, Nov. 17, 1978; 58 FR 68515, Dec. 28, 1993]



Sec. 201.109  Eligibility for discount of mortgage company notes.

    (a) The question has arisen whether notes issued by mortgage banking 
companies to finance their acquisition and temporary holding of real 
estate mortgages are eligible for discount by Reserve Banks.
    (b) Under section 13 of the Federal Reserve Act the Board has 
authority to define what are ``agricultural, industrial, or commercial 
purposes'', which is the statutory criterion for determining the 
eligibility of notes and drafts for discount. However, such definition 
may not include paper ``covering merely investments or issued or drawn 
for the purpose of carrying or trading in stocks, bonds, or other 
investment securities''.
    (c) The legislative history of section 13 suggests that Congress 
intended to make eligible for discount ``any paper drawn for a 
legitimate business purpose of any kind''4 and that the 
Board, in determining what paper is eligible, should place a ``broad and 
adaptable construction''5 upon the terms in section 13. It 
may also be noted that Congress apparently considered paper issued to 
carry investment securities as paper issued for a ``commercial 
purpose'', since it specifically prohibited the Board from making such 
paper eligible for discount. If ``commercial'' is broad enough to 
encompass investment banking, it would also seem to include mortgage 
banking.
---------------------------------------------------------------------------


    \4\ House Report No. 69, 63d Cong., p. 48.

    \5\ 50 Cong. Rec. 4675 (1913) (remarks of Rep. Phelan).
---------------------------------------------------------------------------

    (d) In providing for the discount of commercial paper by Reserve 
Banks,

[[Page 13]]

Congress obviously intended to facilitate the current financing of 
agriculture, industry, and commerce, as opposed to long-term 
investment.6 In the main, trading in stocks and bonds is 
investment-oriented; most securities transactions do not directly affect 
the production or distribution of goods and services. Mortgage banking, 
on the other hand, is essential to the construction industry and thus 
more closely related to industry and commerce. Although investment 
bankers also perform similar functions with respect to newly issued 
securities, Congress saw fit to deny eligibility to all paper issued to 
finance the carrying of securities. Congress did not distinguish between 
newly issued and outstanding securities, perhaps covering the larger 
area in order to make certain that the area of principal concern (i.e., 
trading in outstanding stocks and bonds) was fully included. Speculation 
was also a major Congressional concern, but speculation is not a 
material element in mortgage banking operations. Mortgage loans would 
not therefore seem to be within the purpose underlying the exclusions 
from eligibility in section 13.
---------------------------------------------------------------------------


    \6\ 50 Cong. Rec. 5021 (1913) (remarks of Rep. Thompson of 
Oklahoma); 50 Cong. Rec. 4731-32 (1913) (remarks of Rep. Borland).
---------------------------------------------------------------------------

    (e) Section 201.3(a) provides that a negotiable note maturing in 90 
days or less is not eligible for discount if the proceeds are used ``for 
permanent or fixed investments of any kind, such as land, buildings or 
machinery, or for any other fixed capital purpose''. However, the 
proceeds of a mortgage company's commercial paper are not used by it for 
any permanent or fixed capital purpose, but only to carry temporarily an 
inventory of mortgage loans pending their ``packaging'' for sale to 
permanent investors that are usually recurrent customers.
    (f) In view of the foregoing considerations the Board concluded that 
notes issued to finance such temporary ``warehousing'' of real estate 
mortgage loans are notes issued for an industrial or commercial purpose, 
that such mortgage loans do not constitute ``investment securities'', as 
that term is used in section 13, and that the temporary holding of such 
mortgages in these circumstances is not a permanent investment by the 
mortgage banking company. Accordingly, the Board held that notes having 
not more than 90 days to run which are issued to finance the temporary 
holding of mortgage loans are eligible for discount by Reserve Banks.
[35 FR 527, Jan. 15, 1970, as amended at 58 FR 68515, Dec. 28, 1993]



Sec. 201.110  Goods held by persons employed by owner.

    (a) The Board has been asked to review an Interpretation it issued 
in 1933 concerning the eligibility for rediscount by a Federal Reserve 
Bank of bankers' acceptances issued against field warehouse receipts 
where the custodian of the goods is a present or former employee of the 
borrower. [para. 1445 Published Interpretations, 1933 BULLETIN 188] The 
Board determined at that time that the acceptances were not eligible 
because such receipts do not comply with the requirement of section 13 
of the Federal Reserve Act that a banker's acceptance be ``secured at 
the time of acceptance by a warehouse receipt or other such document 
conveying or securing title covering readily marketable staples,'' nor 
with the requirement of section XI of the Board's Regulation A that it 
be ``secured at the time of acceptance by a warehouse, terminal, or 
other similar receipt, conveying security title to such staples, issued 
by a party independent of the customer.''

The requirement that the receipt be ``issued by a party independent of 
the customer'' was deleted from Regulation A in 1973, and thus the 
primary issue for the Board's consideration is whether a field warehouse 
receipt is a document `'securing title'' to readily marketable staples.
    (b) While bankers' acceptances secured by field warehouse receipts 
are rarely offered for rediscount or as collateral for an advance, the 
issue of ``eligibility'' is still significant. If an ineligible 
acceptance is discounted and then sold by a member bank, the proceeds 
are deemed to be ``deposits'' under Sec. 204.1(f) of Regulation D and 
are subject to reserve requirements.

[[Page 14]]

    (c) In reviewing this matter, the Board has taken into consideration 
the changes that have occurred in commercial law and practice since 
1933. Modern commercial law, embodied in the Uniform Commercial Code, 
refers to ``perfecting security interests'' rather than ``securing 
title'' to goods. The Board believes that if, under State law, the 
issuance of a field warehouse receipt provides the lender with a 
perfected security interest in the goods, the receipt should be regarded 
as a document ``securing title'' to goods for the purposes of section 13 
of the Federal Reserve Act. It should be noted, however, that the mere 
existence of a perfected security interest alone is not sufficient; the 
Act requires that the acceptance be secured by a warehouse receipt or 
its equivalent.
    (d) Under the U.C.C., evidence of an agreement between the secured 
party and the debtor must exist before a security interest can attach. 
[U.C.C. section 9-202.] This agreement may be evidence by: (1) A written 
security agreement signed by the debtor, or (2) the collateral being 
placed in the possession of the secured party or his agent [U.C.C. 
section 9-203]. Generally, a security interest is perfected by the 
filing of a financing statement, [U.C.C. section 9-302.] However, if the 
collateral is in the possession of a bailee, then perfection can be 
achieved by:
    (1) Having warehouse receipts issued in the name of the secured 
party; (2) notifying the bailee of the secured party's interest; or (3) 
having a financing statement filed. [U.C.C. section 9-304(3).]
    (e) If the field warehousing operation is properly conducted, a 
security interest in the goods is perfected when a warehouse receipt is 
issued in the name of the secured party (the lending bank). Therefore, 
warehouse receipts issued pursuant to a bona fide field warehousing 
operation satisfy the legal requirements of section 13 of the Federal 
Reserve Act. Moreover, in a properly conducted field warehousing 
operation, the warehouse manager will be trained, bonded, supervised and 
audited by the field warehousing company. This procedure tends to insure 
that he will not be impermissibly controlled by his former (or sometimes 
present) employer, the borrower, even though he may look to the borrower 
for reemployment at some future time. A prudent lender will, of course, 
carefully review the field warehousing operation to ensure that stated 
procedures are satisfactory and that they are actually being followed. 
The lender may also wish to review the field warehousing company's 
fidelity bonds and legal liability insurance policies to ensure that 
they provide satisfactory protection to the lender.
    (f) If the warehousing operation is not conducted properly, however, 
and the manager remains under the control of the borrower, the security 
interest may be lost. Consequently, the lender may wish to require a 
written security agreement and the filing of a financing statement to 
insure that the lender will have a perfected security interest even if 
it is later determined that the field warehousing operation was not 
properly conducted. It should be noted however, that the Federal Reserve 
Act clearly requires that the bankers' acceptance be secured by a 
warehouse receipt in order to satisfy the requirements of eligibility, 
and a written security agreement and a filed financing statement, while 
desirable, cannot serve as a substitute for a warehouse receipt.
    (g) This Interpretation is based on facts that have been presented 
in regard to field warehousing operations conducted by established, 
professional field warehouse companies, and it does not necessarily 
apply to all field warehousing operations. Thus para. 1430 and para. 
1440 of the Published Interpretations [1918 BULLETIN 31 and 1918 
BULLETIN 862] maintain their validity with regard to corporations formed 
for the purpose of conducting limited field warehousing operations. 
Furthermore, the prohibition contained in para. 1435 Published 
Interpretations [1918 BULLETIN 634] that ``the borrower shall not have 
access to the premises and shall exercise no control over the goods 
stored'' retains its validity, except that access for inspection 
purposes is still permitted under para. 1450 [1926 BULLETIN 666]. The 
purpose for the acceptance transaction must be proper and cannot

[[Page 15]]

be for speculation [para. 1400, 1919 BULLETIN 858] or for the purpose of 
furnishing working capital [para. 1405, 1922 BULLETIN 52].
    (h) This interpretation suspersedes only the previous para. 1445 of 
the Published Interpretations [1933 BULLETIN 188], and is not intended 
to affect any other Board Interpretation regarding field warehousing.

(12 U.S.C. 342 et seq.)
[43 FR 21434, May 18, 1978]



PART 202--EQUAL CREDIT OPPORTUNITY (REGULATION B)--Table of Contents




                 Regulation B (Equal Credit Opportunity)

Sec.
202.1  Authority, scope and purpose.
202.2  Definitions.
202.3  Limited exceptions for certain classes of transactions.
202.4  General rule prohibiting discrimination.
202.5  Rules concerning taking of applications.
202.5a  Rules on providing appraisal reports.
202.6  Rules concerning evaluation of applications.
202.7  Rules concerning extensions of credit.
202.8  Special purpose credit programs.
202.9  Notifications.
202.10  Furnishing of credit information.
202.11  Relation to state law.
202.12  Record retention.
202.13  Information for monitoring purposes.
202.14  Enforcement, penalties and liabilities.
202.15  Incentives for self-testing and self-correction.


Appendix A to Part 202--Federal Enforcement Agencies
Appendix B to Part 202--Model Application Forms
Appendix C to Part 202--Sample Notification Forms
Appendix D to Part 202--Issuance of Staff Interpretations

Supplement I to Part 202--Official Staff Interpretations

    Authority:  15 U.S.C. 1691-1691f.

    Source:  Reg. B, 50 FR 48026, Nov. 20, 1985, unless otherwise noted.

                 Regulation B (Equal Credit Opportunity)



Sec. 202.1  Authority, scope and purpose.

    (a) Authority and scope. This regulation is issued by the Board of 
Governors of the Federal Reserve System pursuant to title VII (Equal 
Credit Opportunity Act) of the Consumer Credit Protection Act, as 
amended (15 U.S.C. 1601 et seq.). Except as otherwise provided herein, 
the regulation applies to all persons who are creditors, as defined in 
Sec. 202.2(1). 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 control number 7100-0201.
    (b) Purpose. The purpose of this regulation is to promote the 
availability of credit to all creditworthy applicants without regard to 
race, color, religion, national origin, sex, marital status, or age 
(provided the applicant has the capacity to contract); to the fact that 
all or part of the applicant's income derives from a public assistance 
program; or to the fact that the applicant has in good faith exercised 
any right under the Consumer Credit Protection Act. The regulation 
prohibits creditor practices that discriminate on the basis of any of 
these factors. The regulation also requires creditors to notify 
applicants of action taken on their applications; to report credit 
history in the names of both spouses on an account; to retain records of 
credit applications; to collect information about the applicant's race 
and other personal characteristics in applications for certain dwelling-
related loans; and to provide applicants with copies of appraisal 
reports used in connection with credit transactions.
[Reg. B, 50 FR 48026, Nov. 20, 1985, as amended at 58 FR 65661, Dec. 16, 
1993]



Sec. 202.2  Definitions.

    For the purposes of this regulation, unless the context indicates 
otherwise, the following definitions apply.
    (a) Account means an extension of credit. When employed in relation 
to an account, the word use refers only to open-end credit.
    (b) Act means the Equal Credit Opportunity Act (title VII of the 
Consumer Credit Protection Act).
    (c) Adverse action. (1) The term means:

[[Page 16]]

    (i) A refusal to grant credit in substantially the amount or on 
substantially the terms requested in an application unless the creditor 
makes a counteroffer (to grant credit in a different amount or on other 
terms) and the applicant uses or expressly accepts the credit offered;
    (ii) A termination of an account or an unfavorable change in the 
terms of an account that does not affect all or a substantial portion of 
a class of the creditor's accounts; or
    (iii) A refusal to increase the amount of credit available to an 
applicant who has made an application for an increase.
    (2) The term does not include: (i) A change in the terms of an 
account expressly agreed to by an applicant.
    (ii) Any action or forbearance relating to an account taken in 
connection with inactivity, default, or delinquency as to that accounnt;
    (iii) A refusal or failure to authorize an account transaction at a 
point of sale or loan, except when the refusal is a termination or an 
unfavorable change in the terms of an account that does not affect all 
or a substantial portion of a class of the creditor's accounts, or when 
the refusal is a denial of an application for an increase in the amount 
of credit available under the account;
    (iv) A refusal to extend credit because applicable law prohibits the 
creditor from extending the credit requested; or
    (v) A refusal to extend credit because the creditor does not offer 
the type of credit or credit plan requested.
    (3) An action that falls within the definition of both paragraphs 
(c)(1) and (c)(2) of this section is governed by paragraph (c)(2) of 
this section.
    (d) Age refers only to the age of natural persons and means the 
number of fully elapsed years from the date of an applicant's birth.
    (e) Applicant means any person who requests or who has received an 
extension of credit from a creditor, and includes any person who is or 
may become contractually liable regarding an extension of credit. For 
purposes of Sec. 202.7(d), the term includes guarantors, sureties, 
endorsers and similar parties.
    (f) Application means an oral or written request for an extension of 
credit that is made in accordance with procedures established by a 
creditor for the type of credit requested. The term does not include the 
use of an account or line of credit to obtain an amount of credit that 
is within a previously established credit limit. A completed application 
means an application in connection with which a creditor has received 
all the information that the creditor regularly obtains and considers in 
evaluating applications for the amount and type of credit requested 
(including, but not limited to, credit reports, any additional 
information requested from the applicant, and any approvals or reports 
by governmental agencies or other persons that are necessary to 
guarantee, insure, or provide security for the credit or collateral). 
The creditor shall exercise reasonable diligence in obtaining such 
information.
    (g) Business credit refers to extensions of credit primarily for 
business or commercial (including agricultural) purposes, but excluding 
extensions of credit of the types described in Sec. 202.3 (a), (b), and 
(d).
    (h) Consumer credit means credit extended to a natural person 
primarily for personal, family, or household purposes.
    (i) Contractually liable means expressly obligated to repay all 
debts arising on an account by reason of an agreement to that effect.
    (j) Credit means the right granted by a creditor to an applicant to 
defer payment of a debt, incur debt and defer its payment, or purchase 
property or services and defer payment therefor.
    (k) Credit card means any card, plate, coupon book, or other single 
credit device that may be used from time to time to obtain money, 
property, or services on credit.
    (l) Creditor means a person who, in the ordinary course of business, 
regularly participates in the decision of whether or not to extend 
credit. The term includes a creditor's assignee, transferee, or subrogee 
who so participates. For purposes of Secs. 202.4 and 202.5(a), the term 
also includes a person who, in the ordinary course of business,

[[Page 17]]

regularly refers applicants or prospective applicants to creditors, or 
selects or offers to select creditors to whom requests for credit may be 
made. A person is not a creditor regarding any violation of the act or 
this regulation committed by another creditor unless the person knew or 
had reasonable notice of the act, policy, or practice that constituted 
the violation before becoming involved in the credit transaction. The 
term does not include a person whose only participation in a credit 
transaction involves honoring a credit card.
    (m) Credit transaction means every aspect of an applicant's dealings 
with a creditor regarding an application for credit or an existing 
extension of credit (including, but not limited to, information 
requirements; investigation procedures; standards of creditworthiness; 
terms of credit; furnishing of credit information; revocation, 
alteration, or termination of credit; and collection procedures).
    (n) Discriminate against an applicant means to treat an applicant 
less favorably than other applicants.
    (o) Elderly means age 62 or older.
    (p) Empirically derived and other credit scoring systems--(1) A 
credit scoring system is a system that evaluates an applicant's 
creditworthiness mechanically, based on key attributes of the applicant 
and aspects of the transaction, and that determines, alone or in 
conjunction with an evaluation of additional information about the 
applicant, whether an applicant is deemed creditworthy. To qualify as an 
empirically derived, demonstrably and statistically sound, credit 
scoring system, the system must be:
    (i) Based on data that are derived from an empirical comparison of 
sample groups or the population of creditworthy and noncreditworthy 
applicants who applied for credit within a reasonable preceding period 
of time;
    (ii) Developed for the purpose of evaluating the creditworthiness of 
applicants with respect to the legitimate business interests of the 
creditor utilizing the system (including, but not limited to, minimizing 
bad debt losses and operating expenses in accordance with the creditor's 
business judgment);
    (iii) Developed and validated using accepted statistical principles 
and methodology; and
    (iv) Periodically revalidated by the use of appropriate statistical 
principles and methodology and adjusted as necessary to maintain 
predictive ability.
    (2) A creditor may use an empirically derived, demonstrably and 
statistically sound, credit scoring system obtained from another person 
or may obtain credit experience from which to develop such a system. Any 
such system must satisfy the criteria set forth in paragraphs (p)(1) (i) 
through (iv) of this section; if the creditor is unable during the 
development process to validate the system based on its own credit 
experience in accordance with paragraph (p)(1) of this section, the 
system must be validated when sufficient credit experience becomes 
available. A system that fails this validity test is no longer an 
empirically derived, demonstrably and statistically sound, credit 
scoring system for that creditor.
    (q) Extend credit and extension of credit mean the granting of 
credit in any form (including, but not limited to, credit granted in 
addition to any existing credit or credit limit; credit granted pursuant 
to an open-end credit plan; the refinancing or other renewal of credit, 
including the issuance of a new credit card in place of an expiring 
credit card or in substitution for an existing credit card; the 
consolidation of two or more obligations; or the continuance of existing 
credit without any special effort to collect at or after maturity).
    (r) Good faith means honesty in fact in the conduct or transaction.
    (s) Inadvertent error means a mechanical, electronic, or clerical 
error that a creditor demonstrates was not intentional and occurred 
notwithstanding the maintenance of procedures reasonably adapted to 
avoid such errors.
    (t) Judgmental system of evaluating applicants means any system for 
evaluating the creditworthiness of an applicant other than an 
empirically derived, demonstrably and statistically sound, credit 
scoring system.
    (u) Marital status means the state of being unmarried, married, or 
separated, as defined by applicable state

[[Page 18]]

law. The term unmarried includes persons who are single, divorced, or 
widowed.
    (v) Negative factor or value, in relation to the age of elderly 
applicants, means utilizing a factor, value, or weight that is less 
favorable regarding elderly applicants than the creditor's experience 
warrants or is less favorable than the factor, value, or weight assigned 
to the class of applicants that are not classified as elderly and are 
most favored by a creditor on the basis of age.
    (w) Open-end credit means credit extended under a plan under which a 
creditor may permit an applicant to make purchases or obtain loans from 
time to time directly from the creditor or indirectly by use of a credit 
card, check, or other device.
    (x) Person means a natural person, corporation, government or 
governmental subdivision or agency, trust, estate, partnership, 
cooperative, or association.
    (y) Pertinent element of creditworthiness, in relation to a 
judgmental system of evaluating applicants, means any information about 
applicants that a creditor obtains and considers and that has a 
demonstrable relationship to a determination of creditworthiness.
    (z) Prohibited basis means race, color, religion, national origin, 
sex, marital status, or age (provided that the applicant has the 
capacity to enter into a binding contract); the fact that all or part of 
the applicant's income derives from any public assistance program; or 
the fact that the applicant has in good faith exercised any right under 
the Consumer Credit Protection Act or any state law upon which an 
exemption has been granted by the Board.
    (aa) State means any State, the District of Columbia, the 
Commonwealth of Puerto Rico, or any territory or possession of the 
United States.
[Reg. B, 50 FR 48026, Nov. 20, 1985, as amended at 54 FR 50485, Dec. 7, 
1989]



Sec. 202.3  Limited exceptions for certain classes of transactions

    (a) Public utilities credit--(1) Definition. Public utilities credit 
refers to extensions of credit that involve public utility services 
provided through pipe, wire, or other connected facilities, or radio or 
similar transmission (including extensions of such facilities), if the 
charges for service, delayed payment, and any discount for prompt 
payment are filed with or regulated by a government unit.
    (2) Exceptions. The following provisions of this regulation do not 
apply to public utilities credit:
    (i) Section 202.5(d)(1) concerning information about marital status;
    (ii) Section 202.10 relating to furnishing of credit information; 
and
    (iii) Section 202.12(b) relating to record retention.
    (b) Securities credit--(1) Definition. Securities credit refers to 
extensions of credit subject to regulation under section 7 of the 
Securities Exchange Act of 1934 or extensions of credit by a broker or 
dealer subject to regulation as a broker or dealer under the Securities 
Exchange Act of 1934.
    (2) Exceptions. The following provisions of this regulation do not 
apply to securities credit:
    (i) Section 202.5(c) concerning information about a spouse or former 
spouse;
    (ii) Section 202.5(d)(1) concerning information about marital 
status;
    (iii) Section 202.5(d)(3) concerning information about the sex of an 
applicant;
    (iv) Section 202.7(b) relating to designation of name, but only to 
the extent necessary to prevent violation of rules regarding an account 
in which a broker or dealer has an interest, or rules necessitating the 
aggregation of accounts of spouses for the purpose of determining 
controlling interests, beneficial interests, beneficial ownership, or 
purchase limitations and restrictions;
    (v) Section 202.7(c) relating to action concerning open-end 
accounts, but only to the extent the action taken is on the basis of a 
change of name or marital status;
    (vi) Section 202.7(d) relating to the signature of a spouse or other 
person;
    (vii) Section 202.10 relating to furnishing of credit information; 
and
    (viii) Section 202.12(b) relating to record retention.
    (c) Incidental credit. (1) Definition. Incidental credit refers to 
extensions of consumer credit other than credit of

[[Page 19]]

the types described in paragraphs (a) and (b) of this section:
    (i) That are not made pursuant to the terms of a credit card 
account;
    (ii) That are not subject to a finance charge (as defined in 
Regulation Z, 12 CFR 226.4); and
    (iii) That are not payable by agreement in more than four 
installments.
    (2) Exceptions. The following provisions of this regulation do not 
apply to incidental credit:
    (i) Section 202.5(c) concerning information about a spouse or former 
spouse;
    (ii) Section 202.5(d)(1) concerning information about marital 
status;
    (iii) Section 202.5(d)(2) concerning information about income 
derived from alimony, child support, or separate maintenance payments;
    (iv) Section 202.5(d)(3) concerning information about the sex of an 
applicant, but only to the extent necessary for medical records or 
similar purposes;
    (v) Section 202.7(d) relating to the signature of a spouse or other 
person;
    (vi) Section 202.9 relating to notifications;
    (vii) Section 202.10 relating to furnishing of credit information; 
and
    (viii) Section 202.12(b) relating to record retention.
    (d) Government credit--(1) Definition. Government credit refers to 
extensions of credit made to governments or governmental subdivisions, 
agencies, or instrumentalities.
    (2) Applicability of regulation. Except for Sec. 202.4, the general 
rule prohibiting discrimination on a prohibited basis, the requirements 
of this regulation do not apply to government credit.
[Reg. B, 50 FR 48026, Nov. 20, 1985, as amended at 54 FR 50485, Dec. 7, 
1989]



Sec. 202.4  General rule prohibiting discrimination.

    A creditor shall not discriminate against an applicant on a 
prohibited basis regarding any aspect of a credit transaction.



Sec. 202.5  Rules concerning taking of applications.

    (a) Discouraging applications. A creditor shall not make any oral or 
written statement, in advertising or otherwise, to applicants or 
prospective applicants that would discourage on a prohibited basis a 
reasonable person from making or pursuing an application.
    (b) General rules concerning requests for information. (1) Except as 
provided in paragraphs (c) and (d) of this section, a creditor may 
request any information in connection with an application.1
---------------------------------------------------------------------------


    \1\ This paragraph does not limit or abrogate any federal or state 
law regarding privacy, privileged information, credit reporting 
limitations, or similar restrictions on obtainable information.
---------------------------------------------------------------------------

    (2) Required collection of information. Notwithstanding paragraphs 
(c) and (d) of this section, a creditor shall request information for 
monitoring purposes as required by Sec. 202.13 for credit secured by the 
applicant's dwelling. In addition, a creditor may obtain information 
required by a regulation, order, or agreement issued by, or entered into 
with, a court or an enforcement agency (including the Attorney General 
of the United States or a similar state official) to monitor or enforce 
compliance with the act, this regulation, or other federal or state 
statute or regulation.
    (3) Special purpose credit. A creditor may obtain information that 
is otherwise restricted to determine eligibility for a special purpose 
credit program, as provided in Sec. 202.8 (c) and (d).
    (c) Information about a spouse or former spouse. (1) Except as 
permitted in this paragraph, a creditor may not request any information 
concerning the spouse or former spouse of an applicant.
    (2) Permissible inquiries. A creditor may request any information 
concerning an applicant's spouse (or former spouse under paragraph 
(c)(2)(v) of this section) that may be requested about the applicant if:
    (i) The spouse will be permitted to use the account;
    (ii) The spouse will be contractually liable on the account;
    (iii) The applicant is relying on the spouse's income as a basis for 
repayment of the credit requested;
    (iv) The applicant resides in a community property state or property 
on which the applicant is relying as a basis for repayment of the credit 
requested is located in such a state; or

[[Page 20]]

    (v) The applicant is relying on alimony, child support, or separate 
maintenance payments from a spouse or former spouse as a basis for 
repayment of the credit requested.
    (3) Other accounts of the applicant. A creditor may request an 
applicant to list any account upon which the applicant is liable and to 
provide the name and address in which the account is carried. A creditor 
may also ask the names in which an applicant has previously received 
credit.
    (d) Other limitations on information requests--(1) Marital status. 
If an applicant applies for individual unsecured credit, a creditor 
shall not inquire about the applicant's marital status unless the 
applicant resides in a community property state or is relying on 
property located in such a state as a basis for repayment of the credit 
requested. If an application is for other than individual unsecured 
credit, a creditor may inquire about the applicant's marital status, but 
shall use only the terms married, unmarried, and separated. A creditor 
may explain that the category unmarried includes single, divorced, and 
widowed persons.
    (2) Disclosure about income from alimony, child support, or separate 
maintenance. A creditor shall not inquire whether income stated in an 
application is derived from alimony, child support, or separate 
maintenance payments unless the creditor discloses to the applicant that 
such income need not be revealed if the applicant does not want the 
creditor to consider it in determining the applicant's creditworthiness.
    (3) Sex. A creditor shall not inquire about the sex of an applicant. 
An applicant may be requested to designate a title on an application 
form (such as Ms., Miss, Mr., or Mrs.) if the form discloses that the 
designation of a title is optional. An application form shall otherwise 
use only terms that are neutral as to sex.
    (4) Childbearing, childrearing. A creditor shall not inquire about 
birth control practices, intentions concerning the bearing or rearing of 
children, or capability to bear children. A creditor may inquire about 
the number and ages of an applicant's dependents or about dependent-
related financial obligations or expenditures, provided such information 
is requested without regard to sex, marital status, or any other 
prohibited basis.
    (5) Race, color, religion, national origin. A creditor shall not 
inquire about the race, color, religion, or national origin of an 
applicant or any other person in connection with a credit transaction. A 
creditor may inquire about an applicant's permanent residence and 
immigration status.
    (e) Written applications. A creditor shall take written applications 
for the types of credit covered by Sec. 202.13(a), but need not take 
written applications for other types of credit.



Sec. 202.5a  Rules on providing appraisal reports.

    (a) Providing appraisals. A creditor shall provide a copy of the 
appraisal report used in connection with an application for credit that 
is to be secured by a lien on a dwelling. A creditor shall comply with 
either paragraph (a)(1) or (a)(2) of this section.
    (1) Routine delivery. A creditor may routinely provide a copy of the 
appraisal report to an applicant (whether credit is granted or denied or 
the application is withdrawn).
    (2) Upon request. A creditor that does not routinely provide 
appraisal reports shall provide a copy upon an applicant's written 
request.
    (i) Notice. A creditor that provides appraisal reports only upon 
request shall notify an applicant in writing of the right to receive a 
copy of an appraisal report. The notice may be given at any time during 
the application process but no later than when the creditor provides 
notice of action taken under Sec. 202.9 of this part. The notice shall 
specify that the applicant's request must be in writing, give the 
creditor's mailing address, and state the time for making the request as 
provided in paragraph (a)(2)(ii) of this section.
    (ii) Delivery. A creditor shall mail or deliver a copy of the 
appraisal report promptly (generally within 30 days) after the creditor 
receives an applicant's request, receives the report, or receives 
reimbursement from the applicant for the report, whichever is last to 
occur. A creditor need not provide a

[[Page 21]]

copy when the applicant's request is received more than 90 days after 
the creditor has provided notice of action taken on the application 
under Sec. 202.9 of this part or 90 days after the application is 
withdrawn.
    (b) Credit unions. A creditor that is subject to the regulations of 
the National Credit Union Administration on making copies of appraisals 
available is not subject to this section.
    (c) Definitions. For purposes of paragraph (a) of this section, the 
term dwelling means a residential structure that contains one to four 
units whether or not that structure is attached to real property. The 
term includes, but is not limited to, an individual condominium or 
cooperative unit, and a mobile or other manufactured home. The term 
appraisal report means the document(s) relied upon by a creditor in 
evaluating the value of the dwelling.
[58 FR 65661, Dec. 16, 1993]



Sec. 202.6  Rules concerning evaluation of applications.

    (a) General rule concerning use of information. Except as otherwise 
provided in the Act and this regulation, a creditor may consider any 
information obtained, so long as the information is not used to 
discriminate against an applicant on a prohibited basis.2
---------------------------------------------------------------------------


    \2\ The legislative history of the Act indicates that the Congress 
intended an ``effects test'' concept, as outlined in the employment 
field by the Supreme Court in the cases of Griggs v. Duke Power Co., 401 
U.S. 424 (1971), and Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), 
to be applicable to a creditor's determination of creditworthiness.
---------------------------------------------------------------------------

    (b) Specific rules concerning use of information. (1) Except as 
provided in the act and this regulation, a creditor shall not take a 
prohibited basis into account in any system of evaluating the 
creditworthiness of applicants.
    (2) Age, receipt of public assistance. (i) Except as permitted in 
this paragraph (b)(2), a creditor shall not take into account an 
applicant's age (provided that the applicant has the capacity to enter 
into a binding contract) or whether an applicant's income derives from 
any public assistance program.
    (ii) In an empirically derived, demonstrably and statistically 
sound, credit scoring system, a creditor may use an applicant's age as a 
predictive variable, provided that the age of an elderly applicant is 
not assigned a negative factor or value.
    (iii) In a judgmental system of evaluating creditworthiness, a 
creditor may consider an applicant's age or whether an applicant's 
income derives from any public assistance program only for the purpose 
of determining a pertinent element of creditworthiness.
    (iv) In any system of evaluating creditworthiness, a creditor may 
consider the age of an elderly applicant when such age is used to favor 
the elderly applicant in extending credit.
    (3) Childbearing, childrearing. In evaluating creditworthiness, a 
creditor shall not use assumptions or aggregate statistics relating to 
the likelihood that any group of persons will bear or rear children or 
will, for that reason, receive diminished or interrupted income in the 
future.
    (4) Telephone listing. A creditor shall not take into account 
whether there is a telephone listing in the name of an applicant for 
consumer credit, but may take into account whether there is a telephone 
in the applicant's residence.
    (5) Income. A creditor shall not discount or exclude from 
consideration the income of an applicant or the spouse of an applicant 
because of a prohibited basis or because the income is derived from 
part-time employment or is an annuity, pension, or other retirement 
benefit; a creditor may consider the amount and probable continuance of 
any income in evaluating an applicant's creditworthiness. When an 
applicant relies on alimony, child support, or separate maintenance 
payments in applying for credit, the creditor shall consider such 
payments as income to the extent that they are likely to be consistently 
made.
    (6) Credit history. To the extent that a creditor considers credit 
history in evaluating the creditworthiness of similarly qualified 
applicants for a similar type and amount of credit, in evaluating an 
applicant's creditworthiness a creditor shall consider:

[[Page 22]]

    (i) The credit history, when available, of accounts designated as 
accounts that the applicant and the applicant's spouse are permitted to 
use or for which both are contractually liable;
    (ii) On the applicant's request, any information the applicant may 
present that tends to indicate that the credit history being considered 
by the creditor does not accurately reflect the applicant's 
creditworthiness; and
    (iii) On the applicant's request, the credit history, when 
available, of any account reported in the name of the applicant's spouse 
or former spouse that the applicant can demonstrate accurately reflects 
the applicant's creditworthiness.
    (7) Immigration status. A creditor may consider whether an applicant 
is a permanent resident of the United States, the applicant's 
immigration status, and any additional information that may be necessary 
to ascertain the creditor's rights and remedies regarding repayment.
    (c) State property laws. A creditor's consideration or application 
of state property laws directly or indirectly affecting creditworthiness 
does not constitute unlawful discrimination for the purposes of the Act 
or this regulation.



Sec. 202.7  Rules concerning extensions of credit.

    (a) Individual accounts. A creditor shall not refuse to grant an 
individual account to a creditworthy applicant on the basis of sex, 
marital status, or any other prohibited basis.
    (b) Designation of name. A creditor shall not refuse to allow an 
applicant to open or maintain an account in a birth-given first name and 
a surname that is the applicant's birth-given surname, the spouse's 
surname, or a combined surname.
    (c) Action concerning existing open-end accounts--(1) Limitations. 
In the absence of evidence of the applicant's inability or unwillingness 
to repay, a creditor shall not take any of the following actions 
regarding an applicant who is contractually liable on an existing open-
end account on the basis of the applicant's reaching a certain age or 
retiring or on the basis of a change in the applicant's name or marital 
status:
    (i) Require a reapplication, except as provided in paragraph (c)(2) 
of this section;
    (ii) Change the terms of the account; or
    (iii) Terminate the account.
    (2) Requiring reapplication. A creditor may require a reapplication 
for an open-end account on the basis of a change in the marital status 
of an applicant who is contractually liable if the credit granted was 
based in whole or in part on income of the applicant's spouse and if 
information available to the creditor indicates that the applicant's 
income may not support the amount of credit currently available.
    (d) Signature of spouse or other person--(1) Rule for qualified 
applicant. Except as provided in this paragraph, a creditor shall not 
require the signature of an applicant's spouse or other person, other 
than a joint applicant, on any credit instrument if the applicant 
qualifies under the creditor's standards of creditworthiness for the 
amount and terms of the credit requested.
    (2) Unsecured credit. If an applicant requests unsecured credit and 
relies in part upon property that the applicant owns jointly with 
another person to satisfy the creditor's standards of creditworthiness, 
the creditor may require the signature of the other person only on the 
instrument(s) necessary, or reasonably believed by the creditor to be 
necessary, under the law of the state in which the property is located, 
to enable the creditor to reach the property being relied upon in the 
event of the death or default of the applicant.
    (3) Unsecured credit--community property states. If a married 
applicant requests unsecured credit and resides in a community property 
state, or if the property upon which the applicant is relying is located 
in such a state, a creditor may require the signature of the spouse on 
any instrument necessary, or reasonably believed by the creditor to be 
necessary, under applicable state law to make the community property 
available to satisfy the debt in the event of default if:
    (i) Applicable state law denies the applicant power to manage or 
control sufficient community property to qualify for the amount of 
credit requested

[[Page 23]]

under the creditor's standards of creditworthiness; and
    (ii) The applicant does not have sufficient separate property to 
qualify for the amount of credit requested without regard to community 
property.
    (4) Secured credit. If an applicant requests secured credit, a 
creditor may require the signature of the applicant's spouse or other 
person on any instrument necessary, or reasonably believed by the 
creditor to be necessary, under applicable state law to make the 
property being offered as security available to satisfy the debt in the 
event of default, for example, an instrument to create a valid lien, 
pass clear title, waive inchoate rights or assign earnings.
    (5) Additional parties. If, under a creditor's standards of 
creditworthiness, the personal liability of an additional party is 
necessary to support the extension of the credit requested, a creditor 
may request a cosigner, guarantor, or the like. The applicant's spouse 
may serve as an additional party, but the creditor shall not require 
that the spouse be the additional party.
    (6) Rights of additional parties. A creditor shall not impose 
requirements upon an additional party that the creditor is prohibited 
from imposing upon an applicant under this section.
    (e) Insurance. A creditor shall not refuse to extend credit and 
shall not terminate an account because credit life, health, accident, 
disability, or other credit-related insurance is not available on the 
basis of the applicant's age.



Sec. 202.8  Special purpose credit programs.

    (a) Standards for programs. Subject to the provisions of paragraph 
(b) of this section, the act and this regulation permit a creditor to 
extend special purpose credit to applicants who meet eligibility 
requirements under the following types of credit programs:
    (1) Any credit assistance program expressly authorized by federal or 
state law for the benefit of an economically disadvantaged class of 
persons;
    (2) Any credit assistance program offered by a not-for-profit 
organization, as defined under section 501(c) of the Internal Revenue 
Code of 1954, as amended, for the benefit of its members or for the 
benefit of an economically disadvantaged class of persons; or
    (3) Any special purpose credit program offered by a for-profit 
organization or in which such an organization participates to meet 
special social needs, if:
    (i) The program is established and administered pursuant to a 
written plan that identifies the class of persons that the program is 
designed to benefit and sets forth the procedures and standards for 
extending credit pursuant to the program; and
    (ii) The program is established and administered to extend credit to 
a class of persons who, under the organization's customary standards of 
creditworthiness, probably would not receive such credit or would 
receive it on less favorable terms than are ordinarily available to 
other applicants applying to the organization for a similar type and 
amount of credit.
    (b) Rules in other sections. (1) General applicability. All of the 
provisions of this regulation apply to each of the special purpose 
credit programs described in paragraph (a) of this section unless 
modified by this section.
    (2) Common characteristics. A program described in paragraph (a)(2) 
or (a)(3) of this section qualifies as a special purpose credit program 
only if it was established and is administered so as not to discriminate 
against an applicant on any prohibited basis; however, all program 
participants may be required to share one or more common characteristics 
(for example, race, national origin, or sex) so long as the program was 
not established and is not administered with the purpose of evading the 
requirements of the act or this regulation.
    (c) Special rule concerning requests and use of information. If 
participants in a special purpose credit program described in paragraph 
(a) of this section are required to possess one or more common 
characteristics (for example, race, national origin, or sex) and if the 
program otherwise satisfies the requirements of paragraph (a) of this 
section, a creditor may request and consider information regarding the 
common characteristic(s) in determining

[[Page 24]]

the applicant's eligibility for the program.
    (d) Special rule in the case of financial need. If financial need is 
one of the criteria under a special purpose program described in 
paragraph (a) of this section, the creditor may request and consider, in 
determining an applicant's eligibility for the program, information 
regarding the applicant's martial status; alimony, child support, and 
separate maintenance income; and the spouse's financial resources. In 
addition, a creditor may obtain the signature of an applicant's spouse 
or other person on an application or credit instrument relating to a 
special purpose program if the signature is required by Federal or State 
law.



Sec. 202.9  Notifications.

    (a) Notification of action taken, ECOA notice, and statement of 
specific reasons--(1) When notification is required. A creditor shall 
notify an applicant of action taken within:
    (i) 30 days after receiving a completed application concerning the 
creditor's approval of, counteroffer to, or adverse action on the 
application;
    (ii) 30 days after taking adverse action on an incomplete 
application, unless notice is provided in accordance with paragraph (c) 
of this section;
    (iii) 30 days after taking adverse action on an existing account; or
    (iv) 90 days after notifying the applicant of a counteroffer if the 
applicant does not expressly accept or use the credit offered.
    (2) Content of notification when adverse action is taken. A 
notification given to an applicant when adverse action is taken shall be 
in writing and shall contain: a statement of the action taken; the name 
and address of the creditor; a statement of the provisions of section 
701(a) of the Act; the name and address of the Federal agency that 
administers compliance with respect to the creditor; and either:
    (i) A statement of specific reasons for the action taken; or
    (ii) A disclosure of the applicant's right to a statement of 
specific reasons within 30 days, if the statement is requested within 60 
days of the creditor's notification. The disclosure shall include the 
name, address, and telephone number of the person or office from which 
the statement of reasons can be obtained. If the creditor chooses to 
provide the reasons orally, the creditor shall also disclose the 
applicant's right to have them confirmed in writing within 30 days of 
receiving a written request for confirmation from the applicant.
    (3) Notification to business credit applicants. For business credit, 
a creditor shall comply with the requirements of this paragraph in the 
following manner:
    (i) With regard to a business that had gross revenues of $1,000,000 
or less in its preceding fiscal year (other than an extension of trade 
credit, credit incident to a factoring agreement, or other similar types 
of business credit), a creditor shall comply with paragraphs (a) (1) and 
(2) of this section, except that:
    (A) The statement of the action taken may be given orally or in 
writing, when adverse action is taken;
    (B) Disclosure of an applicant's right to a statement of reasons may 
be given at the time of application, instead of when adverse action is 
taken, provided the disclosure is in a form the applicant may retain and 
contains the information required by paragraph (a)(2)(ii) of this 
section and the ECOA notice specified in paragraph (b)(1) of this 
section;
    (C) For an application made solely by telephone, a creditor 
satisfies the requirements of this paragraph by an oral statement of the 
action taken and of the applicant's right to a statement of reasons for 
adverse action.
    (ii) With regard to a business that had gross revenues in excess of 
$1,000,000 in its preceding fiscal year or an extension of trade credit, 
credit incident to a factoring agreement, or other similar types of 
business credit, a creditor shall:
    (A) Notify the applicant, orally or in writing, within a reasonable 
time of the action taken; and
    (B) Provide a written statement of the reasons for adverse action 
and the ECOA notice specified in paragraph (b)(1) of this section if the 
applicant makes a written request for the reasons within 60 days of 
being notified of the adverse action.

[[Page 25]]

    (b) Form of ECOA notice and statement of specific reasons--(1) ECOA 
notice. To satisfy the disclosure requirements of paragraph (a)(2) of 
this section regarding section 701(a) of the Act, the creditor shall 
provide a notice that is substantially similar to the following:
    The Federal Equal Credit Opportunity Act prohibits creditors from 
discriminating against credit applicants on the basis of race, color, 
religion, national origin, sex, marital status, age (provided the 
applicant has the capacity to enter into a binding contract); because 
all or part of the applicant's income derives from any public assistance 
program; or because the applicant has in good faith exercised any right 
under the Consumer Credit Protection Act. The Federal agency that 
administers compliance with this law concerning this creditor is (name 
and address as specified by the appropriate agency listed in appendix A 
of this regulation).
    (2) Statement of specific reasons. The statement of reasons for 
adverse action required by paragraph (a)(2)(i) of this section must be 
specific and indicate the principal reason(s) for the adverse action. 
Statements that the adverse action was based on the creditor's internal 
standards or policies or that the applicant failed to achieve the 
qualifying score on the creditor's credit scoring system are 
insufficient.
    (c) Incomplete applications--(1) Notice alternatives. Within 30 days 
after receiving application that is incomplete regarding matters that an 
applicant can complete, the creditor shall notify the applicant either:
    (i) Of action taken, in accordance with paragraph (a) of this 
section; or
    (ii) Of the incompleteness, in accordance with paragraph (c)(2) of 
this section.
    (2) Notice of incompleteness. If additional information is needed 
from an applicant, the creditor shall send a written notice to the 
applicant specifying the information needed, designating a reasonable 
period of time for the applicant to provide the information, and 
informing the applicant that failure to provide the information 
requested will result in no further consideration being given to the 
application. The creditor shall have no further obligation under this 
section if the applicant fails to respond within the designated time 
period. If the applicant supplies the requested information within the 
designated time period, the creditor shall take action on the 
application and notify the applicant in accordance with paragraph (a) of 
this section.
    (3) Oral request for information. At its option, a creditor may 
inform the applicant orally of the need for additional information; but 
if the application remains incomplete the creditor shall send a notice 
in accordance with paragraph (c)(1) of this section.
    (d) Oral notifications by small-volume creditors. The requirements 
of this section (including statements of specific reasons) are 
satisified by oral notifications in the case of any creditor that did 
not receive more than 150 applications during the preceding calendar 
year.
    (e) Withdrawal of approved application. When an applicant submits an 
application and the parties contemplate that the applicant will inquire 
about its status, if the creditor approves the application and the 
applicant has not inquired within 30 days after applying, the creditor 
may treat the application as withdrawn and need not comply with 
paragraph (a)(1) of this section.
    (f) Multiple applicants. When an application involves more than one 
applicant, notification need only be given to one of them, but must be 
given to the primary applicant where one is readily apparent.
    (g) Applications submitted through a third party. When an 
application is made on behalf of an applicant to more than one creditor 
and the applicant expressly accepts or uses credit offered by one of the 
creditors, notification of action taken by any of the other creditors is 
not required. If no credit is offered or if the applicant does not 
expressly accept or use any credit offered, each creditor taking adverse 
action must comply with this section, directly or through a third party. 
A notice given by a third party shall disclose the identify of each 
creditor on whose behalf the notice is given.
[Reg. B, 50 FR 48026, Nov. 20, 1985, as amended at 54 FR 50485, Dec. 7, 
1989]

[[Page 26]]



Sec. 202.10  Furnishing of credit information.

    (a) Designation of accounts. A creditor tht furnishes credit 
information shall designate:
    (1) Any new account to reflect the participation of both spouses if 
the applicant's spouse is permitted to use or is contractually liable on 
the account (other than as a guarantor, surety, endorser, or similar 
party); and
    (2) Any existing account to reflect such participation, within 90 
days after receiving a written request to do so from one of the spouses.
    (b) Routine reports to consumer reporting agency. If a creditor 
furnishes credit information to a consumer reporting agency concerning 
an account designated to reflect the participation of both spouses, the 
creditor shall furnish the information in a manner that will enable the 
agency to provide access to the information in the name of each spouse.
    (c) Reporting in response to inquiry. If a creditor furnishes credit 
information in response to an inquiry concerning an account designated 
to reflect the participation of both spouses, the creditor shall furnish 
the information in the name of the spouse about whom the information is 
requested.



Sec. 202.11  Relation to state law.

    (a) Inconsistent state laws. Except as otherwise provided in this 
section, this regulation alters, affects, or preempts only those state 
laws that are inconsistent with the act and this regulation and then 
only to the extent of the inconsistency. A state law is not inconsistent 
if it is more protective of an applicant.
    (b) Preempted provisions of state law. (1) A state law is deemed to 
be inconsistent with the requirements of the Act and this regulation and 
less protective of an applicant within the meaning of section 705(f) of 
the Act to the extent that the law:
    (i) Requires or permits a practice or act prohibited by the Act or 
this regulation;
    (ii) Prohibits the individual extension of consumer credit to both 
parties to a marriage if each spouse individually and voluntarily 
applies for such credit;
    (iii) Prohibits inquiries or collection of data required to comply 
with the act or this regulation;
    (iv) Prohibits asking or considering age in an empirically derived, 
demonstrably and statistically sound, credit scoring system to determine 
a pertinent element of creditworthiness, or to favor an elderly 
applicant; or
    (v) Prohibits inquiries necessary to establish or administer as 
special purpose credit program as defined by Sec. 202.8.
    (2) A creditor, state, or other interested party may request the 
Board to determine whether a state law is inconsistent with the 
requirements of the Act and this regulation.
    (c) Laws on finance charges, loan ceilings. If married applicants 
voluntarily apply for and obtained individual accounts with the same 
creditor, the accounts shall not be aggregated or otherwise combined for 
purposes of determining permissible finance charges or loan ceilings 
under any federal or state law. Permissible loan ceiling laws shall be 
construed to permit each spouse to become individually liable up to the 
amount of the loan ceilings, less the amount for which the applicant is 
jointly liable.
    (d) State and Federal laws not affected. This section does not alter 
or annul any provision of state property laws, laws relating to the 
disposition of decedents' estates, or Federal or state banking 
regulations directed only toward insuring the solvency of financial 
institutions.
    (e) Exemption for state-regulated transactions--(1) Applications. A 
state may apply to the Board for an exemption from the requirements of 
the Act and this regulation for any class of credit transactions within 
the state. The Board will grant such an exemption if the Board 
determines that:
    (i) The class of credit transactions is subject to state law 
requirements substantially similar to the Act and this regulation or 
that applicants are afforded greater protection under state law; and
    (ii) There is adequate provision for state enforcement.

[[Page 27]]

    (2) Liability and enforcement. (i) No exemption will extend to the 
civil liability provisions of section 706 or the administrative 
enforcement provisions of section 704 of the Act.
    (ii) After an exemption has been granted, the requirements of the 
applicable state law (except for additional requirements not imposed by 
Federal law) will constitute the requirements of the Act and this 
regulation.



Sec. 202.12  Record retention.

    (a) Retention of prohibited information. A creditor may retain in 
its files information that is prohibited by the Act or this regulation 
in evaluating applications, without violating the Act or this 
regulation, if the information was obtained:
    (1) From any source prior to March 23, 1977;
    (2) From consumer reporting agencies, an applicant, or others 
without the specific request of the creditor; or
    (3) As required to monitor compliance with the Act and this 
regulation or other Federal or state statutes or regulations.
    (b) Preservation of records--(1) Applications. For 25 months (12 
months for business credit) after the date that a creditor notifies an 
applicant of action taken on an application or of incompleteness, the 
creditor shall retain in original form or a copy thereof:
    (i) Any application that it receives, any information required to be 
obtained concerning characteristics of the applicant to monitor 
compliance with the Act and this regulation or other similar law, and 
any other written or recorded information used in evaluating the 
application and not returned to the applicant at the applicant's 
request;
    (ii) A copy of the following documents if furnished to the applicant 
in written form (or, if furnished orally, any notation or memorandum 
made by the creditor):
    (A) The notification of action taken; and
    (B) The statement of specific reasons for adverse action; and
    (iii) Any written statement submitted by the applicant alleging a 
violation of the Act or this regulation.
    (2) Existing accounts. For 25 months (12 months for business credit) 
after the date that a creditor notifies an applicant of adverse action 
regarding an existing account, the creditor shall retain as to that 
account, in original form or a copy thereof:
    (i) Any written or recorded information concerning the adverse 
action; and
    (ii) Any written statement submitted by the applicant alleging a 
violation of the act or this regulation.
    (3) Other applications. For 25 months (12 months for business 
credit) after the date that a creditor receives an application for which 
the creditor is not required to comply with the notification 
requirements of Sec. 202.9, the creditor shall retain all written or 
recorded information in its possession concerning the applicant, 
including any notation of action taken.
    (4) Enforcement proceedings and investigations. A creditor shall 
retain the information specified in this section beyond 25 months (12 
months for business credit) if it has actual notice that it is under 
investigation or is subject to an enforcement proceeding for an alleged 
violation of the act or this regulation by the Attorney General of the 
United States or by an enforcement agency charged with monitoring that 
creditor's compliance with the act and this regulation, or if it has 
been served with notice of an action filed pursuant to section 706 of 
the Act and Sec. 202.14 of this regulation. The creditor shall retain 
the information until final disposition of the matter, unless an earlier 
time is allowed by order of the agency or court.
    (5) Special rule for certain business credit applications. With 
regard to a business with gross revenues in excess of $1,000,000 in its 
preceding fiscal year, or an extension of trade credit, credit incident 
to a factoring agreement or other similar types of business credit, the 
creditor shall retain records for at least 60 days after notifying the 
applicant of the action taken. If within that time period the applicant 
requests in writing the reasons for adverse action or that records be 
retained, the creditor shall retain records for 12 months.
    (6) Self-tests. For 25 months after a self-test (as defined in 
Sec. 202.15) has been completed, the creditor shall retain all

[[Page 28]]

written or recorded information about the self-test. A creditor shall 
retain information beyond 25 months if it has actual notice that it is 
under investigation or is subject to an enforcement proceeding for an 
alleged violation, or if it has been served with notice of a civil 
action. In such cases, the creditor shall retain the information until 
final disposition of the matter, unless an earlier time is allowed by 
the appropriate agency or court order.
[Reg. B, 50 FR 48026, Nov. 20, 1985, as amended at 54 FR 50486, Dec. 7, 
1989; 62 FR 66419, Dec. 18, 1997]

    Effective Date Note: At 62 FR 66419, Dec. 18, 1997, Sec. 202.12 was 
amended by adding paragraph (b)(6), effective Jan. 30, 1998.



Sec. 202.13  Information for monitoring purposes.

    (a) Information to be requested. A creditor that receives an 
application for credit primarily for the purchase or refinancing of a 
dwelling occupied or to be occupied by the applicant as a principal 
residence, where the extension of credit will be secured by the 
dwelling, shall request as part of the application the following 
information regarding the applicant(s):
    (1) Race or national origin, using the categories American Indian or 
Alaskan Native; Asian or Pacific Islander; Black; White; Hispanic; Other 
(Specify);
    (2) Sex;
    (3) Marital status, using the categories married, unmarried, and 
separated; and
    (4) Age.

Dwelling means a residential structure that contains one to four units, 
whether or not that structure is attached to real property. The term 
includes, but is not limited to, an individual condominium or 
cooperative unit, and a mobile or other manufactured home.
    (b) Obtaining of information. Questions regarding race or national 
origin, sex, marital status, and age may be listed, at the creditor's 
option, on the application form or on a separate form that refers to the 
application. The applicant(s) shall be asked but not required to supply 
the requested information. If the applicant(s) chooses not to provide 
the information or any part of it, that fact shall be noted on the form. 
The creditor shall then also note on the form, to the extent possible, 
the race or national origin and sex of the applicant(s) on the basis of 
visual observation or surname.
    (c) Disclosure to applicant(s). The creditor shall inform the 
applicant(s) that the information regarding race or national origin, 
sex, marital status, and age is being requested by the Federal 
government for the purpose of monitoring compliance with Federal 
statutes that prohibit creditors from discriminating against appliants 
on those bases. The creditor shall also inform the applicant(s) that if 
the applicant(s) chooses note to provide the information, the creditor 
is required to note the race or national origin and sex on the basis of 
visual observation or surname.
    (d) Substitute monitoring program. A monitoring program required by 
an agency charged with administrative enforcement under section 704 of 
the Act may be substituted for the requirements contained in paragraphs 
(a), (b), and (c).



Sec. 202.14  Enforcement, penalties and liabilities.

    (a) Administrative enforcement. (1) As set forth more fully in 
section 704 of the Act, administrative enforcement of the Act and this 
regulation regarding certain creditors is assigned to the Comptroller of 
the Currency, Board of Governors of the Federal Reserve System, Board of 
Directors of the Federal Deposit Insurance Corporation, Office of Thrift 
Supervision, National Credit Union Administration, Interstate Commerce 
Commission, Secretary of Agriculture, Farm Credit Administration, 
Securities and Exchange Commission, Small Business Administration, and 
Secretary of Transportation.
    (2) Except to the extent that administrative enforcement is 
specifically assigned to other authorities, compliance with the 
requirements imposed under the act and this regulation is enforced by 
the Federal Trade Commission.
    (b) Penalties and liabilities. (1) Sections 706 (a) and (b) and 
702(g) of the Act provide that any creditor that fails to comply with a 
requirement imposed by the Act or this regulation is subject

[[Page 29]]

to civil liability for actual and punitive damages in individual or 
class actions. Pursuant to sections 704 (b), (c), and (d) and 702(g) of 
the Act, violations of the Act or regulations also constitute violations 
of other Federal laws. Liability for punitive damages is restricted to 
nongovernmental entities and is limited to $10,000 in individual actions 
and the lesser of $500,000 or 1 percent of the creditor's net worth in 
class actions. Section 706(c) provides for equitable and declaratory 
relief and section 706(d) authorizes the awarding of costs and 
reasonable attorney's fees to an aggrieved applicant in a successful 
action.
    (2) As provided in section 706(f), a civil action under the Act or 
this regulation may be brought in the appropriate United States district 
court without regard to the amount in controversy or in any other court 
of competent jurisdiction within two years after the date of the 
occurrence of the violation, or within one year after the commencement 
of an administrative enforcement proceeding or of a civil action brought 
by the Attorney General of the United States within two years after the 
alleged violation.
    (3) If an agency responsible for administrative enforcement is 
unable to obtain compliance with the act or this part, it may refer the 
matter to the Attorney General of the United States. In addition, if the 
Board, the Comptroller of the Currency, the Federal Deposit Insurance 
Corporation, the Office of Thrift Supervision, or the National Credit 
Union Administration has reason to believe that one or more creditors 
engaged in a pattern or practice of discouraging or denying applications 
in violation of the act or this part, the agency shall refer the matter 
to the Attorney General. Furthermore, the agency may refer a matter to 
the Attorney General if the agency has reason to believe that one or 
more creditors violated section 701(a) of the act.
    (4) On referral, or whenever the Attorney General has reason to 
believe that one or more creditors engaged in a pattern or practice in 
violation of the act or this regulation, the Attorney General may bring 
a civil action for such relief as may be appropriate, including actual 
and punitive damages and injunctive relief.
    (5) If the Board, the Comptroller of the Currency, the Federal 
Deposit Insurance Corporation, the Office of Thrift Supervision, or the 
National Credit Union Administration has reason to believe (as a result 
of a consumer complaint, conducting a consumer compliance examination, 
or otherwise) that a violation of the act or this part has occurred 
which is also a violation of the Fair Housing Act, and the matter is not 
referred to the Attorney General, the agency shall notify:
    (i) The Secretary of Housing and Urban Development; and
    (ii) The applicant that the Secretary of Housing and Urban 
Development has been notified and that remedies for the violation may be 
available under the Fair Housing Act.
    (c) Failure of compliance. A creditor's failure to comply with 
Secs. 202.6(b)(6), 202.9, 202.10, 202.12 or 202.13 is not a violation if 
it results from an inadvertent error. On discovering an error under 
Secs. 202.9 and 202.10, the creditor shall correct it as soon as 
possible. If a creditor inadvertently obtains the monitoring information 
regarding the race or national origin and sex of the applicant in a 
dwelling-related transaction not overed by Sec. 202.13, the creditor may 
act on and retain the application without violating the regulation.
[Reg. B, 50 FR 48026, Nov. 20, 1985, as amended at 54 FR 53539, Dec. 29, 
1989; 58 FR 65662, Dec. 16, 1993]



Sec. 202.15  Incentives for self-testing and self-correction.

    (a) General rules--(1) Voluntary self-testing and correction. The 
report or results of the self-test that a creditor voluntarily conducts 
(or authorizes) are privileged as provided in this section. Data 
collection required by law or by any governmental authority is not a 
voluntary self-test.
    (2) Corrective action required. The privilege in this section 
applies only if the creditor has taken or is taking appropriate 
corrective action.
    (3) Other privileges. The privilege created by this section does not 
preclude the assertion of any other privilege that may also apply.

[[Page 30]]

    (b) Self-test defined--(1) Definition. A self-test is any program, 
practice, or study that:
    (i) Is designed and used specifically to determine the extent or 
effectiveness of a creditor's compliance with the act or this 
regulation; and
    (ii) Creates data or factual information that is not available and 
cannot be derived from loan or application files or other records 
related to credit transactions.
    (2) Types of information privileged. The privilege under this 
section applies to the report or results of the self-test, data or 
factual information created by the self-test, and any analysis, 
opinions, and conclusions pertaining to the self-test report or results. 
The privilege covers workpapers or draft documents as well as final 
documents.
    (3) Types of information not privileged. The privilege under this 
section does not apply to:
    (i) Information about whether a creditor conducted a self-test, the 
methodology used or the scope of the self-test, the time period covered 
by the self-test, or the dates it was conducted; or
    (ii) Loan and application files or other business records related to 
credit transactions, and information derived from such files and 
records, even if it has been aggregated, summarized, or reorganized to 
facilitate analysis.
    (c) Appropriate corrective action--(1) General requirement. For the 
privilege in this section to apply, appropriate corrective action is 
required when the self-test shows that it is more likely than not that a 
violation occurred, even though no violation has been formally 
adjudicated.
    (2) Determining the scope of appropriate corrective action. A 
creditor must take corrective action that is reasonably likely to remedy 
the cause and effect of a likely violation by:
    (i) Identifying the policies or practices that are the likely cause 
of the violation; and
    (ii) Assessing the extent and scope of any violation.
    (3) Types of relief. Appropriate corrective action may include both 
prospective and remedial relief, except that to establish a privilege 
under this section:
    (i) A creditor is not required to provide remedial relief to a 
tester used in a self-test;
    (ii) A creditor is only required to provide remedial relief to an 
applicant identified by the self-test as one whose rights were more 
likely than not violated; and
    (iii) A creditor is not required to provide remedial relief to a 
particular applicant if the statute of limitations applicable to the 
violation expired before the creditor obtained the results of the self-
test or the applicant is otherwise ineligible for such relief.
    (4) No admission of violation. Taking corrective action is not an 
admission that a violation occurred.
    (d)(1) Scope of privilege. The report or results of a privileged 
self-test may not be obtained or used:
    (i) By a government agency in any examination or investigation 
relating to compliance with the act or this regulation; or
    (ii) By a government agency or an applicant (including a prospective 
applicant who alleges a violation of Sec. 202.5(a)) in any proceeding or 
civil action in which a violation of the act or this regulation is 
alleged.
    (2) Loss of privilege. The report or results of a self-test are not 
privileged under paragraph (d)(1) of this section if the creditor or a 
person with lawful access to the report or results):
    (i) Voluntarily discloses any part of the report or results, or any 
other information privileged under this section, to an applicant or 
government agency or to the public;
    (ii) Discloses any part of the report or results, or any other 
information privileged under this section, as a defense to charges that 
the creditor has violated the act or regulation; or
    (iii) Fails or is unable to produce written or recorded information 
about the self-test that is required to be retained under 
Sec. 202.12(b)(6) when the information is needed to determine whether 
the privilege applies. This paragraph does not limit any other penalty 
or remedy that may be available for a violation of Sec. 202.12.
    (3) Limited use of privileged information. Notwithstanding paragraph 
(d)(1) of this section, the self-test report or

[[Page 31]]

results and any other information privileged under this section may be 
obtained and used by an applicant or government agency solely to 
determine a penalty or remedy after a violation of the act or this 
regulation has been adjudicated or admitted. Disclosures for this 
limited purpose may be used only for the particular proceeding in which 
the adjudication or admission was made. Information disclosed under this 
paragraph (d)(3) remains privileged under paragraph (d)(1) of this 
section.
[62 FR 66419, Dec. 18, 1997]

    Effective Date Note: At 62 FR 66419, Dec. 18, 1997, Sec. 202.15 was 
added, effective Jan. 30, 1998.

          Appendix A to Part 202--Federal Enforcement Agencies

    The following list indicates the federal agencies that enforce 
Regulation B for particular classes of creditors. Any questions 
concerning a particular creditor should be directed to its 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.

   Nonmember 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 saving 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 Interstate Commerce Commission

    Office of Proceedings, Interstate Commerce Commission, Washington, 
DC 20523.

             Creditors Subject to Packers and Stockyards Act

    Nearest Packers and Stockyards Administration area supervisor.

                   Small Business Investment Companies

    U.S. Small Business Administration, 1441 L Street, NW., Washington, 
DC 20416.

                           Brokers and Dealers

    Securities and Exchange Commission, Washington, DC 20549.

Federal Land Banks, Federal Land Bank Associations, Federal Intermediate 
            Credit Banks, and Production Credit Associations

    Farm Credit Administration, 1501 Farm Credit Drive, McLean, VA 
22102-5090.

 Retailers, Finance Companies, and All Other Creditors Not Listed Above

    FTC Regional Office for region in which the creditor operates or 
Federal Trade Commission, Equal Credit Opportunity, Washington, DC 
20580.

[Reg. B, 50 FR 48026, Nov. 20, 1985, as amended at 54 FR 53539, Dec. 29, 
1989; 56 FR 51322, Oct. 11, 1991; Reg. B, 57 FR 20399, May 13, 1992]

             Appendix B to Part 202--Model Application Forms

    This appendix contains five model credit application forms, each 
designated for use in a particular type of consumer credit transaction 
as indicated by the bracketed caption on each form. The first sample 
form is intended for use in open-end, unsecured transactions; the second 
for closed-end, secured transactions; the third for closed-end 
transactions, whether unsecured or secured; the fourth in transactions 
involving community property or occurring in community property states; 
and the fifth in residential mortgage transactions. The appendix also 
contains a model disclosure for use in complying with Sec. 202.13 for 
certain dwelling-related loans. All forms contained in this appendix

[[Page 32]]

are models; their use by creditors is optional.
    The use or modification of these forms is governed by the following 
instructions. A creditor may change the forms: by asking for additional 
information not prohibited by Sec. 202.5; by deleting any information 
request; or by rearranging the format without modifying the substance of 
the inquiries. In any of these three instances, however, the appropriate 
notices regarding the optional nature of courtesy titles, the option to 
disclose alimony, child support, or separate maintenance, and the 
limitation concerning marital status inquiries must be included in the 
appropriate places if the items to which they relate appear on the 
creditor's form.
    If a creditor uses an appropriate Appendix B model form, or modifies 
a form in accordance with the above instructions, that creditor shall be 
deemed to be acting in compliance with the provisions of paragraphs (c) 
and (d) of Sec. 202.5 of this regulation.

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            Appendix C to Part 202--Sample Notification Forms

    This appendix contains nine sample notification forms. Forms C-1 
through C-4 are intended for use in notifying an applicant that adverse 
action has been taken on an application or account under 
Sec. 202.9(a)(1) and (2)(i) of this regulation. Form C-5 is a notice of 
disclosure of the right to request specific reasons for adverse action 
under Sec. 202.9(a)(1) and (2)(ii). For C-6 is designed for use in 
notifying an applicant, under Sec. 202.9(c)(2), that an application is 
incomplete. Forms C-7 and C-8 are intended for use in connection with 
applications for business credit under Sec. 202.9(a)(3). Form C-9 is 
designed for use in notifying an applicant of the right to receive a 
copy of an appraisal under Sec. 202.5a.
    Form C-1 contains the Fair Credit Reporting Act disclosure as 
required by sections 615 (a) and (b) of that act. Forms C-2 through C-5 
contain only the section 615(a) disclosure (that a creditor obtained 
information from a consumer reporting agency that played a part in the 
credit decision). A creditor must provide the section 615(b) disclosure 
(that a creditor obtained information from an outside source other than 
a consumer reporting agency that played a part in the credit decision) 
where appropriate.
    The sample forms are illustrative and may not be appropriate for all 
creditors. They were designed to include some of the factors that 
creditors most commonly consider. If a creditor chooses to use the 
checklist of reasons provided in one of the sample forms in this 
appendix and if reasons commonly used by the creditor are not provided 
on the form, the creditor should modify the checklist by substituting or 
adding other reasons. For example, if ``inadequate down payment'' or 
``no deposit relationship with us'' are common reasons for taking 
adverse action on an application, the creditor ought to add or 
substitute such reasons for those presently contained on the sample 
forms.
    If the reasons listed on the forms are not the factors actually 
used, a creditor will not satisfy the notice requirement by simply 
checking the closest identifiable factor listed. For example, some 
creditors consider only references from banks or other depository 
institutions and disregard finance company references altogether; their 
statement of reasons should disclose ``insufficient bank references,'' 
not ``insufficient credit references.'' Similarly, a creditor that 
considers bank references and other credit references as distinct 
factors should treat the two factors separately and disclose them as 
appropriate. The creditor should either add such other factors to the 
form or check ``other'' and include the appropriate explanation. The 
creditor need not, however, describe how or why a factor adversely 
affected the application. For example, the notice may say ``length of 
residence'' rather than ``too short a period of residence.''
    A creditor may design its own notification forms or use all or a 
portion of the forms contained in this appendix. Proper use of Forms C-1 
through C-4 will satisfy the requirements of Sec. 202.9(a)(2)(i). Proper 
use of Forms C-5 and C-6 constitutes full compliance with 
Sec. Sec. 202.9(a)(2)(ii) and 202.9(c)(2), respectively. Proper use of 
Forms C-7 and C-8 will satisfy the requirements of Sec. 202.9(a)(2) (i) 
and (ii), respectively, for applications for business credit. Proper use 
of Form C-9 will satisfy the requirements of Sec. 202.5a of this part.

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    FORM C-7--SAMPLE NOTICE OF ACTION TAKEN AND STATEMENT OF REASONS 
                            (BUSINESS CREDIT)

Creditor's name

Creditor's address

Date

    Dear Applicant: Thank you for applying to us for credit. We have 
given your request careful consideration, and regret that we are unable 
to extend credit to you at this time for the following reasons:

(Insert appropriate reason, such as Value or type of collateral not 
sufficient Lack of established earnings record Slow or past due in trade 
or loan payments)

      Sincerely,

    Notice: The federal Equal Credit Opportunity Act prohibits creditors 
from discriminating against credit applicants on the basis of race, 
color, religion, national origin, sex, marital status, age (provided the 
applicant has the capacity to enter into a binding contract); because 
all or part of the applicant's income derives from any public assistance 
program; or because the applicant has in good faith exercised any right 
under the Consumer Credit Protection Act. The federal agency that 
administers compliance with this law concerning this creditor is [name 
and address as specified by the appropriate agency listed in appendix 
A].

  FORM C-8--SAMPLE DISCLOSURE OF RIGHT TO REQUEST SPECIFIC REASONS FOR 
      CREDIT DENIAL GIVEN AT TIME OF APPLICATION (BUSINESS CREDIT)

Creditor's name

Creditor's address

    If your application for business credit is denied, you have the 
right to a written statement of the specific reasons for the denial. To 
obtain the statement, please contact [name, address and telephone number 
of the person or office from which the statement of reasons can be 
obtained] within 60 days from the date you are notified of our decision. 
We will send you a written statement of reasons for the denial within 30 
days of receiving your request for the statement.

    Notice: The federal Equal Credit Opportunity Act prohibits creditors 
from discriminating against credit applicants on the basis of race, 
color, religion, national origin, sex, marital status, age (provided the 
applicant has the capacity to enter into a binding contract); because 
all or part of the applicant's

[[Page 51]]

income derives from any public assistance program; or because the 
applicant has in good faith exercised any right under the Consumer 
Credit Protection Act. The federal agency that administers compliance 
with this law concerning this creditor is [name and address as specified 
by the appropriate agency listed in appendix A].

 Form C-9--Sample Disclosure of Right to Receive a Copy of an Appraisal

    You have the right to a copy of the appraisal report used in 
connection with your application for credit. If you wish a copy, please 
write to us at the mailing address we have provided. We must hear from 
you no later than 90 days after we notify you about the action taken on 
your credit application or you withdraw your application.
    [In your letter, give us the following information:]

[Reg. B, 50 FR 48026, Nov. 20, 1985, as amended at 54 FR 50486, Dec. 7, 
1989; 58 FR 65662, Dec. 16, 1993]

        Appendix D to Part 202--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 706(e) 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 should 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 should 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 creditor's forms 
or statements. This restriction does not apply to forms or statements 
whose use is required or sanctioned by a government agency.

        Supplement I to Part 202--Official Staff Interpretations

                             [Reg. B; ECO-1]

    Following is an official staff interpretation of Regulation B issued 
under authority delegated by the Federal Reserve Board to officials in 
the Division of Consumer and Community Affairs. References are to 
sections of the regulation or the Equal Credit Opportunity Act (15 
U.S.C. 1601 et seq.).

                              Introduction

    1. Official status. Section 706(e) of the Equal Credit Opportunity 
Act protects a creditor from civil liability for any act done or omitted 
in good faith in conformity with an interpretation issued by a duly 
authorized official of the Federal Reserve Board. 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 B. Good-faith compliance with this commentary affords a 
creditor protection under section 706(e) of the Act.
    2. Issuance of interpretations. Under appendix D to the regulation, 
any person may request an official staff interpretation. Interpretations 
will be issued at the discretion of designated officials and 
incorporated in this commentary following publication for comment in the 
Federal Register. Except in unusual circumstances, official staff 
interpretations will be issued only by means of this commentary.
    3. Status of previous interpretations. Interpretations of Regulation 
B previously issued by the Federal Reserve Board and its staff have been 
incorporated into this commentary as appropriate. All other previous 
Board and staff interpretations, official and unofficial, are superseded 
by this commentary.
    4. Footnotes. Footnotes in the regulation have the same legal effect 
as the text of the regulation, whether they are explanatory or 
illustrative in nature.
    5. Comment designations. The comments are designated with as much 
specificity as possible according to the particular regulatory provision 
addressed. Each comment in the commentary is identified by a number and 
the regulatory section or paragraph that it interprets. For example, 
comments to Sec. 202.2(c) are further divided by subparagraph, such as 
comment 2(c)(1)(ii)-1 and comment 2(c)(2)(ii)-1.

              Section 202.1--Authority, Scope, and Purpose

    1(a) Authority and scope.
    1. Scope. The Equal Credit Opportunity Act and Regulation B apply to 
all credit--commercial as well as personal--without regard to the nature 
or type of the credit or the creditor. If a transaction provides for the 
deferral of the payment of a debt, it is credit covered by Regulation B 
even though it may not be a credit transaction covered by Regulation Z 
(Truth in Lending). Further, the definition of creditor is not 
restricted to the party or person to whom the obligation is

[[Page 52]]

initially payable, as is the case under Regulation Z. Moreover, the Act 
and regulation apply to all methods of credit evaluation, whether 
performed judgmentally or by use of a credit scoring system.
    2. Foreign applicability. Regulation B generally does not apply to 
lending activities that occur outside the United States. The regulation 
does apply to lending activities that take place within the United 
States (as well as the Commonwealth of Puerto Rico and any territory or 
possession of the United States), whether or not the applicant is a 
citizen.
    3. Board. The term Board, as used in this regulation, means the 
Board of Governors of the Federal Reserve System.

                       Section 202.2  Definitions

    2(c) Adverse action.

                          Paragraph 2(c)(1)(i)

    1. Application for credit. A refusal to refinance or extend the term 
of a business or other loan is adverse action if the applicant applied 
in accordance with the creditor's procedures.

                          Paragraph 2(c)(1)(ii)

    1. Move from service area. If a credit card issuer terminates the 
open-end account of a customer because the customer has moved out of the 
card issuer's service area, the termination is adverse action for 
purposes of the regulation unless termination on this ground was 
explicitly provided for in the credit agreement between the parties. In 
cases were termination is adverse action, notification is required under 
Sec. 202.9.
    2. Termination based on credit limit. If a creditor terminates 
credit accounts that have low credit limits (for example, under $400) 
but keeps open accounts with higher credit limits, the termination is 
adverse action and notification is required under Sec. 202.9.

                          Paragraph 2(c)(2)(ii)

    1. Default--exercise of due-on-sale clause. If a mortgagor sells or 
transfers mortgaged property without the consent of the mortgagee, and 
the mortgagee exercises its contractual right to accelerate the mortgage 
loan, the mortgagee may treat the mortgagor as being in default. An 
adverse action notice need not be given to the mortgagor or the 
transferee. (See comment 2(e)-1 for treatment of a purchaser who 
requests to assume the loan.)
    2. Current delinquency or default. The term adverse action does not 
include a creditor's termination of an account when the accountholder is 
currently in default or delinquent on that account. Notification in 
accordance with Sec. 202.9 of the regulation generally is required, 
however, if the creditor's action is based on a past delinquency or 
default on the account.

                        Paragraph (2)(c)(2)(iii)

    1. Point-of-sale transactions. Denial of credit at point of sale is 
not adverse action except under those circumstances specified in the 
regulation. For example, denial, at point of sale is not adverse action 
in the following situations:
     A credit cardholder presents an expired card or a card that 
has been reported to the card issuer as lost or stolen.
     The amount of a transaction exceeds a cash advance or 
credit limit.
     The circumstances (such as excessive use of a credit card 
in a short period of time) suggests that fraud is involved.
     The authorization facilities are not functioning.
     Billing statements have been returned to the creditor for 
lack of a forwarding address.
    2. Application for increase in available credit. A refusal or 
failure to authorize an account transaction at the point of sale or loan 
is not adverse action, except when the refusal is a denial of an 
application, submitted in accordance with the creditor's procedures, for 
an increase in the amount of credit.

                          Paragraph 2(c)(2)(v)

    1. Terms of credit versus type of credit offered. When an applicant 
applies for credit and the creditor does not offer the credit terms 
requested by the applicant (for example, the interest rate, length of 
maturity, collateral, or amount of downpayment), a denial of the 
application for that reason is adverse action (unless the creditor makes 
a counteroffer that is accepted by the applicant) and the applicant is 
entitled to notification under Sec. 202.9.
    2(e) Applicant.
    1. Request to assume loan. If a mortgagor sells or transfers the 
mortgaged property and the buyer makes an application to the creditor to 
assume the mortgage loan, the mortgagee must treat the buyer as an 
applicant unless its policy is not to permit assumptions.
    2(f) Application.
    1. General. A creditor has the latitude under the regulation to 
establish its own application process and to decide the type and amount 
of information it will require from credit applicants.
    2. Procedures established. The term refers to the actual practices 
followed by a creditor for making credit decisions as well as its stated 
application procedures. For example, if a creditor's stated policy is to 
require all applications to be in writing on the creditor's application 
form, but the creditor also makes credit decision based on oral 
requests, the creditor's establish procedures are to accept both oral 
and written applications.
    3. When an inquiry becomes an application. A creditor is encouraged 
to provide consumers with information about loan terms. However,

[[Page 53]]

if in giving information to the consumer the creditor also evaluates 
information about the appliant, decides to decline the request, and 
communicates this to the applicant, the creditor has treated the inquiry 
as an application and must then comply with the notification 
requirements under Sec. 202.9. Whether the inquiry becomes an 
application depends on how the creditor responds to the applicant, not 
on what the appliant says or asks.
    4. Examples of inquiries that are not applications. The following 
examples illustrate situations in which only an inquiry has taken place:
     When a consumer calls to asks about loan terms and an 
employee explains the creditor's basic loan terms, such as interest 
rates, loan to value ration, and debt to income ratio.
     When a consumer calls to ask about interest rates for car 
loans, and, in order to quote the appropriate rate, the loan officer 
asks for the make and sale price of the car and amount of the down-
payment, then given the consumer the rate.
     When a consumer asks about terms for a loan to purchase 
home and tells the loan officer her income and intended down-payment, 
but the loan officer only explains the creditor's loan to value ratio 
policy and other basic lending policies, without telling the consumer 
whether she qualifies for the loan.
     When a consumer calls to ask about terms for a loan to 
purchase vacant land and states his income, the sale price of the 
property to be financed, and asks whether he qualifies for a loan, and 
the employee responds by describing the general lending policies, 
explaining that he would need to look at all of the applicant's 
qualifications before making a decision, and offering to send an 
application form to the consumer.
    5. Completed Application--diligence requirement. The regulation 
defines a completed application in terms that give a creditor the 
latitude to establish its own information requirements. Nevertheless, 
the creditor must act with reasonable diligence to collect information 
needed to complete the application. For example, the creditor should 
request information from third parties, such as a credit report, 
promptly after receiving the application. If additional information is 
needed from the applicant, such as an address or telephone number needed 
to verify employment, the creditor should contact the applicant 
promptly. (But see comment 9(a)(1)-3, which discusses the creditors's 
option to deny an application on the basis of incompleteness.)
    2(g) Business credit.
    1. Definition. The test for deciding whether a transaction qualifies 
as business credit is one of primary purpose. For example, an open-end 
credit account used for both personal and business purposes is not 
business credit unless the primary purpose of the account is business-
related. A creditor may rely on an applicant's statement of the purpose 
for the credit requested.
    2(j) Credit.
    1. General. Regulation B covers a wider range of credit transactions 
than Regulation Z (Truth in Lending). For purposes of Regulation B a 
transaction is credit if there is a right to defer payment of a debt--
regardless of whether the credit is for personal or commercial purposes, 
the number of installments required for repayment, or whether the 
transaction is subject to a finance charge.
    2(1) Creditor.
    1. Assignees. The term creditor includes all persons participating 
in the credit decision. This may include an assignee or a potential 
purchaser of the obligation who influences the credit decision by 
indicating whether or not it will purchase the obligation if the 
transaction is consummated.
    2. Referrals to creditors. For certain purposes, the term creditor 
includes persons such as real estate brokers who do not participate in 
credit decisions but who regularly refer applicants to creditors or who 
select or offer to select creditors to whom credit requests can be made. 
These persons must comply with Sec. 202.4, the general rule prohibiting 
discrimination, and with Sec. 202.5(a), on discouraging applications.
    2(p) Empirically derived and other credit scoring systems.
    1. Purpose of definition. The definition under Sec. 202.2(p)(1) 
through (iv) sets the criteria that a credit system must meet in order 
for the system to use age as a predictive factor. Credit systems that do 
not meet these criteria are judgmental systems and may consider age only 
for the purpose of determining a ``pertinent element of 
creditworthiness.'' (Both types of systems may favor an elderly 
applicant. See Sec. 202.6(b)(2).)
    2. Periodic revalidation. The regulation does not specify how often 
credit scoring systems must be revalidated. To meet the requirements for 
statistical soundness, the credit scoring system must be revalidated 
frequently enough to assure that it continues to meet recognized 
professional statistical standards. To ensure that predictive ability is 
being maintained, creditors must periodically review the performance of 
the system. This could be done, for example, by analyzing the loan 
portfolio to determine the delinquency rate for each score interval, or 
by analyzing population stability over time to detect deviations of 
recent applications from the applicant population used to validate the 
system. If this analysis indicates that the system no longer predicts 
risk with statistical soundness, the system must be adjusted as 
necessary to reestablish its predictive ability. A creditor is 
responsible for ensuring its system is validated and revalidated based

[[Page 54]]

on the creditor's own data when it becomes available.
    3. Pooled data scoring systems. A scoring system or the data from 
which to develop such a system may be obtained from either a single 
credit grantor or multiple credit grantors. The resulting system will 
qualify as an empirically derived, demonstrably and statistically sound, 
credit scoring system provided the criteria set forth in paragraph 
(p)(1) (i) through (iv) of this section are met.
    4. Effects test and disparate treatment. An empirically derived, 
demonstrably and statistically sound, credit scoring system may include 
age as a predictive factor (provided that the age of an elderly 
applicant is not assigned a negative factor or value). Besides age, no 
other prohibited basis may be used as a variable. Generally, credit 
scoring systems treat all applicants objectively and thus avoid problems 
of disparate treatment. In cases where a credit scoring system is used 
in conjunction with individual discretion, disparate treatment could 
conceivably occur in the evaluation process. In addition, neutral 
factors used in credit scoring systems could nonetheless be subject to 
challenge under the effects test. (See comment 6(a)-2 for a discussion 
of the effects test).
    2(w) Open-end credit.
    1. Open-end real estate mortgages. The term open-end credit does not 
include negotiated advances under an open-end real estate mortgage or a 
letter of credit.
    2(z) Prohibited basis.
    1. Persons associated with applicant. Prohibited basis as used in 
this regulation refers not only to certain characteristics--the race, 
color, religion, national origin, sex, marital status, or age--of an 
applicant (or officers of an applicant in the case of a corporation) but 
also to the characteristics of individuals with whom an applicant is 
affiliated or with whom the applicant associates. This means, for 
example, that under the general rule stated in Sec. 202.4, a creditor 
may not discriminate against an applicant because of that person's 
personal or business dealings with members of a certain religion, 
because of the national origin of any persons associated with the 
extension of credit (such as the tenants in the apartment complex being 
financed), or because of the race of other residents in the neighborhood 
where the property offered as collateral is located.
    2. National origin. A creditor may not refuse to grant credit 
because an applicant comes from a particular country but may take the 
applicant's immigration status into account. A creditor may also take 
into account any applicable law, regulation, or executive order 
restricting dealings with citizens (or the government) of a particular 
country or imposing limitations regarding credit extended for their use.
    3. Public assistance program. Any Federal, state, or local 
governmental assistance program that provides a continuing, periodic 
income supplement, whether premised on entitlement or need, is public 
assistance for purposes of the regulation. The term includes (but is not 
limited to) Aid to Families with Dependent Children, food stamps, rent 
and mortgage supplement or assistance programs, Social Security and 
Supplemental Security Income, and unemployment compensation. Only 
physicians, hospitals, and others to whom the benefits are payable need 
consider Medicare and Medicaid as public assistance.

  Section 202.3--Limited Exceptions for Certain Classes of Transactions

    1. Scope. This section relieves burdens with regard to certain types 
of credit for which full application of the procedural requirements of 
the regulation is not needed. All classes of transactions remain subject 
to the general rule given in Sec. 202.4, barring discrimination on a 
prohibited basis, and to any other provision not specifically excepted.
    3(a) Public utilities credit.
    1. Definition. This definition applies only to credit for the 
purchase of a utility service, such as electricity, gas, or telephone 
service. Credit provided or offered by a public utility for some other 
purpose--such as for financing the purchase of a gas dryer, telephone 
equipment, or other durable goods, or for insulation or other home 
improvements--is not excepted.
    2. Security deposits. A utility company is a creditor when it 
supplies utility service and bills the user after the service has been 
provided. Thus, any credit term (such as a requirement for a security 
deposit) is subject to the regulation.
    3. Telephone companies. A telephone company's credit transactions 
qualify for the exceptions provided in Sec. 202.3(a)(2) only if the 
company is regulated by a government unit or files the charges for 
service, delayed payment, or any discount for prompt payment with a 
government unit.
    3(c) Incidental credit.
    1. Examples. If a service provider (such as a hospital, doctor, 
lawyer or retailer) allows the client or customer to defer the payment 
of a bill, this deferral of debt is credit for purposes of the 
regulation, even though there is no finance charge and no agreement for 
payment in installments. Because of the exceptions provided by this 
section, however, these particular credit extensions are excepted from 
compliance with certain procedural requirements as specified in the 
regulation.
    3(d) Government credit.
    1. Credit to governments. The exception relates to credit extended 
to (not by) governmental entities. For example, credit extended to a 
local government by a creditor in the private sector is covered by this 
exception, but credit extended to consumers by a

[[Page 55]]

federal or state housing agency does not qualify for special treatment 
under this category.

         Section 202.4--General Rule Prohibiting Discrimination

    1. Scope of section. The general rule stated in Sec. 202.4 covers 
all dealings, without exception, between an applicant and a creditor, 
whether or not addressed by other provisions of the regulation. Other 
sections of the regulation identify specific practices that the Board 
has decided are impermissible because they could result in credit 
discrimination on a basis prohibited by the act. The general rule 
covers, for example, application procedures, criteria used to evaluate 
creditworthiness, administration of accounts, and treatment of 
delinquent or slow accounts. Thus, whether or not specifically 
prohibited elsewhere in the regulation, a credit practice that treats 
applicants differently on a prohibited basis violates the law because it 
violates the general rule. Disparate treatment on a prohibited basis is 
illegal whether or not it results from a conscious intent to 
discriminate. Disparate treatment would be found, for example, where a 
creditor requires a minority applicant to provide greater documentation 
to obtain a loan than a similarly situated nonminority applicant. 
Disparate treatment also would be found where a creditor waives or 
relaxes credit standards for a nonminority applicant but not for a 
similarly situated minority applicant. Treating applicants differently 
on a prohibited basis is unlawful if the creditor lacks a legitimate 
nondiscriminatory reason for its action, or if the asserted reason is 
found to be a pretext for discrimination.

         Section 202.5--Rules Concerning Taking of Applications

    5(a) Discouraging applications.
    1. Potential applicants. Generally, the regulation's protections 
apply only to persons who have requested or received an extension of 
credit. In keeping with the purpose of the act--to promote the 
availability of credit on a nondiscriminatory basis Sec. 202.5(a) covers 
acts or practices directed at potential applicants. Practices prohibited 
by this section include:
     A statement that the applicant should not bother to apply, 
after the applicant states that he is retired.
     Use of words, symbols, models or other forms of 
communication in advertising that express, imply or suggest a 
discriminatory preference or a policy of exclusion in violation of the 
act.
     Use of interview scripts that discourage applications on a 
prohibited basis.
    2. Affirmative advertising. A creditor may affirmatively solicit or 
encourage members of traditionally disadvantaged groups to apply for 
credit, especially groups that might not normally seek credit from that 
creditor.
    5(b) General rules concerning requests for information.
    1. Requests for information. This section governs the types of 
information that a creditor may gather. Section 202.6 governs how 
information may be used.

                            Paragraph 5(b)(2)

    1. Local laws. Information that a creditor is allowed to collect 
pursuant to a ``state'' statute or regulation includes information 
required by a local statute, regulation, or ordinance.
    2. Information required by Regulation C. Regulation C generally 
requires creditors covered by the Home Mortgage Disclosure Act (HMDA) to 
collect and report information about the race or national origin and sex 
of applicants for home improvement loans and home purchase loans, 
including some types of loans not covered by Sec. 202.13. Certain 
creditors with assets under $30 million, though covered by HMDA, are not 
required to collect and report these data; but they may do so at their 
option under HMDA, without violating the ECOA or Regulation B.
    3. Collecting information on behalf of creditors. Loan brokers, 
correspondents, or other persons do not violate the ECOA or Regulation B 
if they collect information that they are otherwise prohibited from 
collecting, where the purpose of collecting the information is to 
provide it to a creditor that is subject to the Home Mortgage Disclosure 
Act or another federal or state statute or regulation requiring data 
collection.
    5(d) Other limitations on information requests.

                            Paragraph 5(d)(1)

    1. Indirect disclosure of prohibited information. The fact that 
certain credit-related information may indirectly disclose marital 
status does not bar a creditor from seeking such information. For 
example, the creditor may ask about:
     The applicant's obligation to pay alimony, child support, 
or separate maintenance.
     The source of income to be used as the basis for repaying 
the credit requested, which could disclose that it is the income of a 
spouse.
     Whether any obligation disclosed by the applicant has a co-
obligor, which could disclose that the co-obligor is a spouse or former 
spouse.
     The ownership of assets, which could disclose the interest 
of a spouse.

                            Paragraph 5(d)(2)

    1. Disclosure about income. The sample application forms in appendix 
B to the regulation illustrate how a creditor may inform an

[[Page 56]]

applicant of the right not to disclose alimony, child support, or 
separate maintenance income.
    2. General inquiry about source of income. Since a general inquiry 
about the source of income may lead an applicant to disclose alimony, 
child support, or separate maintenance, a creditor may not make such an 
inquiry on an application form without prefacing the request with the 
disclosure required by this paragraph.
    3. Specific inquiry about sources of income. A creditor need not 
give the disclosure if the inquiry about income is specific and worded 
in a way that is unlikely to lead the applicant to disclose the fact 
that income is derived from alimony, child support or separate 
maintenance payments. For example, an application form that asks about 
specific types of income such as salary, wages, or investment income 
need not include the disclosure.
    5(e) Written applications.
    1. Requirement for written applications. The requirement of written 
applications for certain types of dwelling-related loans is intended to 
assist the federal supervisory agencies in monitoring compliance with 
the ECOA and the Fair Housing Act. Model application forms are provided 
in appendix B to the regulation, although use of a printed form of any 
kind is not required. A creditor will satisfy the requirement by writing 
down the information that it normally considers in making a credit 
decision. The creditor may complete the application on behalf of an 
applicant and need not require the applicant to sign the application.
    2. Telephone applications. A creditor that accepts applications by 
telephone for dwelling-related credit covered by Sec. 202.13 can meet 
the requirements for written applications by writing down pertinent 
information that is provided by the applicant(s).
    3. Computerized entry. Information entered directly into and 
retained by a computerized system qualifies as a written application 
under this paragraph. (See the commentary to section 202.13(b), 
Applications through electronic media and Applications through video.)

          Section 202.5a--Rules on Providing Appraisal Reports

    5a(a) Providing appraisals.
    1. Coverage. This section covers applications for credit to be 
secured by a lien on a dwelling, as that term is defined in 
Sec. 202.5a(c), whether the credit is for a business purpose (for 
example, a loan to start a business) or a consumer purpose (for example, 
a loan to finance a child's education).
    2. Renewals. If an applicant requests that a creditor renew an 
existing extension of credit, and the creditor obtains a new appraisal 
report to evaluate the request, this section applies. This section does 
not apply to a renewal request if the creditor uses the appraisal report 
previously obtained in connection with the decision to grant credit.
    5a(a)(2)(i) Notice.
    1. Multiple applicants. When an application that is subject to this 
section involves more than one applicant, the notice about the appraisal 
report need only be given to one applicant, but it must be given to the 
primary applicant where one is readily apparent.
    5a(a)(2)(ii) Delivery.
    1. Reimbursement. Creditors may charge for photocopy and postage 
costs incurred in providing a copy of the appraisal report, unless 
prohibited by state or other law. If the consumer has already paid for 
the report--for example, as part of an application fee--the creditor may 
not require additional fees for the appraisal (other than photocopy and 
postage costs).
    5a(c) Definitions.
    1. Appraisal reports. Examples of appraisal reports are:
    i. A report prepared by an appraiser (whether or not licensed or 
certified), including written comments and other documents submitted to 
the creditor in support of the appraiser's estimate or opinion of value.
    ii. A document prepared by the creditor's staff which assigns value 
to the property, if a third-party appraisal report has not been used.
    iii. An internal review document reflecting that the creditor's 
valuation is different from a valuation in a third party's appraisal 
report (or different from valuations that are publicly available or 
valuations such as manufacturers' invoices for mobile homes).
    2. Other reports. The term ``appraisal report'' does not cover all 
documents relating to the value of the applicant's property. Examples of 
reports not covered are:
    i. Internal documents, if a third-party appraisal report was used to 
establish the value of the property.
    ii. Governmental agency statements of appraised value.
    iii. Valuations lists that are publicly available (such as published 
sales prices or mortgage amounts, tax assessments, and retail price 
ranges) and valuations such as manufacturers' invoices for mobile homes.

       Section 202.6--Rules Concerning Evaluation of Applications

    6(a) General rule concerning use of information.
    1. General. When evaluating an application for credit, a creditor 
generally may consider any information obtained. However, a creditor may 
not consider in its evaluation of creditworthiness any information that 
it is barred by Sec. 202.5 from obtaining.
    2. Effects test. The effects test is a judicial doctrine that was 
developed in a series of employment cases decided by the Supreme Court 
under Title VII of the Civil Rights Act

[[Page 57]]

of 1964 (42 U.S.C. 2000e et seq.), and the burdens of proof for such 
employment cases were codified by Congress in the Civil Rights Act of 
1991 (42 U.S.C. 2000e-2). Congressional intent that this doctrine apply 
to the credit area is documented in the Senate Report that accompanied 
H.R. 6516, No. 94-589, pp. 4-5; and in the House Report that accompanied 
H.R. 6516, No. 94-210, p. 5. The act and regulation may prohibit a 
creditor practice that is discriminatory in effect because it has a 
disproportionately negative impact on a prohibited basis, even though 
the creditor has no intent to discriminate and the practice appears 
neutral on is face, unless the creditor practice meets a legitimate 
business need that cannot reasonably be achieved as well by means that 
are less disparate in their impact. For example, requiring that 
applicants have incomes in excess of a certain amount to qualify for an 
overdraft line of credit could mean that women and minority applicants 
will be rejected at a higher rate than men and non-minority applicants. 
If there is a demonstrable relationship between the income requirement 
and creditworthiness for the level of credit involved, however, use of 
the income standard would likely be permissible.
    6(b) Specific rules concerning use of information.

                            Paragraph 6(b)(1)

    1. Prohibited basis--marital status. A creditor may not use marital 
status as a basis for determining the applicant's creditworthiness. 
However, a creditor may consider an applicant's marital status for the 
purpose of ascertaining the creditor's rights and remedies applicable to 
the particular extension of credit. For example, in a secured 
transaction involving real property, a creditor could take into account 
whether state law gives the applicant's spouse an interest in the 
property being offered as collateral. Except to the extent necessary to 
determine rights and remedies for a specific credit transaction, a 
creditor that offers joint credit may not take the applicants' marital 
status into account in credit evaluations. Because it is unlawful for 
creditors to take marital status into account, creditors are barred from 
applying different standards in evaluating married and unmarried 
applicants. In making credit decisions, creditors may not treat joint 
applicants differently based on the existence, the absence, or the 
likelihood of a marital relationship between the parties.
    2. Prohibited basis--special purpose credit. In a special purpose 
credit program, a creditor may consider a prohibited basis to determine 
whether the applicant possesses a characteristic needed for eligibility. 
(See Sec. 202.8.)

                            Paragraph 6(b)(2)

    1. Favoring the elderly. Any system of evaluating creditworthiness 
may favor a credit applicant who is age 62 or older. A credit program 
that offers more favorable credit terms to applicants age 62 or older is 
also permissible; a program that offers more favorable credit terms to 
applicants at an age lower than 62 is permissible only if it meets the 
special-purpose credit requirements of Sec. 202.8.
    2. Consideration of age in a credit scoring system. Age may be taken 
directly into account in a credit scoring system that is ``demonstrably 
and statistically sound,'' as defined in section 202.2(p), with one 
limitation: applicants 62 years or older must be treated at least as 
favorably as applicants who are under 62. If age is scored by assigning 
points to an applicant's age category, elderly applicants must receive 
the same or a greater number of points as the most favored class of 
nonelderly applicants.
    i. Age-split scorecards. A creditor may segment the population into 
scorecards based on the age of an applicant. In such a system, one card 
covers a narrow age range (for example, applicants in their twenties or 
younger) who are evaluated under attributes predictive for that age 
group. A second card covers all other applicants who are evaluated under 
the attributes predictive for that broad class. When a system uses a 
card covering a wide age range that encompasses elderly applicants, the 
credit scoring system does not score age. Thus, the system does not 
raise the issue of assigning a negative factor or value to the age of 
elderly applicants. But if a system segments the population by age into 
multiple scorecards, and includes elderly applicants in a narrower age 
range, the credit scoring system does score age. To comply with the act 
and regulation in such a case, the creditor must ensure that the system 
does not assign a negative factor or value to the age of elderly 
applicants as a class.
    3. Consideration of age in a judgmental system. In a judgmental 
system, defined in Sec. 202.2(t), a creditor may not take age directly 
into account in any aspect of the credit transaction. For example, the 
creditor may not reject an application or terminate an account because 
the applicant is 60 years old. But a creditor that uses a judgmental 
system may relate the applicant's age to other information about the 
applicant that the creditor considers in evaluating creditworthiness. 
For example:
     A creditor may consider the applicant's occupation and 
length of time to retirement to ascertain whether the applicant's income 
(including retirement income) will support the extension of credit to 
its maturity.
     A creditor may consider the adequacy of any security 
offered when the term of the credit extension exceeds the life 
expectancy

[[Page 58]]

of the applicant and the cost of realizing on the collateral could 
exceed the applicant's equity. (An elderly applicant might not qualify 
for a 5 percent down, 30-year mortgage loan but might qualify with a 
larger downpayment or a shorter loan maturity.)
     A creditor may consider the applicant's age to assess the 
significance of the length of the applicant's employment (a young 
applicant may have just entered the job market) or length of time at an 
address (an elderly applicant may recently have retired and moved from a 
long-term residence).
    As the examples above illustrate, the evaluation must be made in an 
individualized, case-by-case manner; and it is impermissible for a 
creditor, in deciding whether to extend credit or in setting the terms 
and conditions, to base its decision on age or information related 
exclusively to age. Age or age-related information may be considered 
only in evaluating other ``pertinent elements of creditworthiness'' that 
are drawn from the particular facts and circumstances concerning the 
applicant.
    4. Consideration of age in a reverse mortgage. A reverse mortgage is 
a home-secured loan in which the borrower receives payments from the 
creditor, and does not become obligated to repay these amounts (other 
than in the case of default) until the borrower dies, moves permanently 
from the home or transfers title to the home, or upon a specified 
maturity date. Disbursements to the borrower under a reverse mortgage 
typically are determined by considering the value of the borrower's 
home, the current interest rate, and the borrower's life expectancy. A 
reverse mortgage program that requires borrowers to be age 62 or older 
is permissible under section 202.6(b)(2)(iv). In addition, under section 
202.6(b)(2)(iii), a creditor may consider a borrower's age to evaluate a 
pertinent element of creditworthiness, such as the amount of the credit 
or monthly payments that the borrower will receive, or the estimated 
repayment date.
    5. Consideration of age in a combined system. A creditor using a 
credit scoring system that qualifies as ``empirically derived'' under 
Sec. 202.2(p) may consider other factors (such as credit report or the 
applicant's cash flow) on a judgmental basis. Doing so will not negate 
the classification of the credit scoring component of the combined 
system as ``demonstrably and statistically sound.'' While age could be 
used in the credit scoring portion, however, in the judgmental portion 
age may not be considered directly. It may be used only for the purpose 
of determining a ``pertinent element of creditworthiness.'' (See comment 
6(b)(2)-3.)
    6. Consideration of public assistance. When considering income 
derived from a public assistance program, a creditor may take into 
account, for example:
     The length of time an applicant will likely remain eligible 
to receive such income.
     Whether the applicant will continue to qualify for benefits 
based on the status of the applicant's dependents (such as Aid to 
Families with Dependent Children or Social Security payments to a 
minor).
     Whether the creditor can attach or garnish the income to 
assure payment of the debt in the event of default.

                            Paragraph 6(b)(5)

    1. Consideration of an individual applicant. A creditor must 
evaluate income derived from part-time employment, alimony, child 
support, separate maintenance, retirement benefits, or public assistance 
(all referred to as ``protected income'') on an individual basis, not on 
the basis of aggregate statistics, and must assess its reliability or 
unreliability by analyzing the applicant's actual circumstances, not by 
analyzing statistical measures derived from a group.
    2. Payments consistently made. In determining the likelihood of 
consistent payments of alimony, child support, or separate maintenance, 
a creditor may consider factors such as whether payments are received 
pursuant to a written agreement or court decree; the length of time that 
the payments have been received; whether the payments are regularly 
received by the applicant; the availability of court or other procedures 
to compel payment; and the creditworthiness of the payor, including the 
credit history of the payor when it is available to the creditor.
    3. Consideration of income. A creditor need not consider income at 
all in evaluating creditworthiness. If a creditor does consider income, 
there are several acceptable methods, whether in a credit scoring or a 
judgmental system:
     A creditor may score or take into account the total sum of 
all income stated by the applicant without taking steps to evaluate the 
income.
     A creditor may evaluate each component of the applicant's 
income, and then score or take into account reliable income separately 
from income that is not reliable, or the creditor may disregard that 
portion of income that is not reliable before aggregating it with 
reliable income.
     A creditor that does not evaluate all income components for 
reliability must treat as reliable any component of protected income 
that is not evaluated.
    In considering the separate components of an applicant's income, the 
creditor may not automatically discount or exclude from consideration 
any protected income. Any discounting or exclusion must be based on the 
applicant's actual circumstances.
    4. Part-time employment, sources of income. A creditor may score or 
take into account the fact that an individual applicant has more than 
one source of earned income--a full-

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time and a part-time job or two part-time jobs. A creditor may also 
score or treat earned income from a secondary source differently than 
earned income from a primary source. However, the creditor may not score 
or otherwise take into account the number of sources for protected 
income--for example, retirement income, social security, alimony. Nor 
may the creditor treat negatively the fact that an applicant's only 
earned income is derived from a part-time job.

                            Paragraph 6(b)(6)

    1. Types of credit references. A creditor may restrict the types of 
credit history and credit references that it will consider, provided 
that the restrictions are applied to all credit applicants without 
regard to sex, marital status, or any other prohibited basis. However, 
on the applicant's request, a creditor must consider credit information 
not reported through a credit bureau when the information relates to the 
same types of credit references and history that the creditor would 
consider if reported through a credit bureau.

                            Paragraph 6(b)(7)

    1. National origin--immigration status. The applicant's immigration 
status and ties to the community (such as employment and continued 
residence in the area) could have a bearing on a creditor's ability to 
obtain repayment. Accordingly, the creditor may consider and 
differentiate, for example, between a noncitizen who is a long-time 
resident with permanent resident status and a noncitizen who is 
temporarily in this country on a student visa.
    2. National origin--citizenship. Under the regulation a denial of 
credit on the ground that an applicant is not a United States citizen is 
nor per se discrimination based on national origin.

          Section 202.7--Rules Concerning Extensions of Credit

    7(a) Individual accounts.
    1. Open-end credit--authorized user. A creditor may not require a 
creditworthy applicant seeking an individual credit account to provide 
additional signatures. However, the creditor may condition the 
designation of an authorized user by the account holder on the 
authorized user's becoming contractually liable for the account, as long 
as the creditor does not differentiate on any prohibited basis in 
imposing this requirement.
    2. Open-end credit--choice of authorized user. A creditor that 
permits an account holder to designate an authorized user may not 
restrict this designation on a prohibited basis. For example, if the 
creditor allows the designation of spouses as authorized users, the 
creditor may not refuse to accept a non-spouse as an authorized user.
    3. Overdraft authority on transaction accounts. If a transaction 
account (such as a checking account or NOW account) includes an 
overdraft line of credit, the creditor may require that all persons 
authorized to draw on the transaction account assume liability for any 
overdraft.
    7(b) Designation of name.
    1. Single name on account. A creditor may require that joint 
applicants on an account designate a single name for purposes of 
administering the account and that a single name be embossed on any 
credit card(s) issued on the account. But the creditor may not require 
that the name be the husband's name. (See Sec. 202.10 for rule governing 
the furnishing of credit history on accounts held by spouses.)
    7(c) Action concerning existing open-end accounts.

                            Paragraph 7(c)(1)

    1. Termination coincidental with marital status change. When an 
account holder's marital status changes, a creditor generally may not 
terminate the account unless it has evidence that the account holder is 
unable or unwilling to repay. But the creditor may terminate an account 
on which both spouses are jointly liable, even if the action coincides 
with a change in marital status, when one or both spouses:
     Repudiate responsibility for future charges on the joint 
account.
     Request separate accounts in their own names.
     Request that the joint account be closed.
    2. Updating information. A creditor may periodically request updated 
information from applicants but may not use events related to a 
prohibited basis--such as an applicant's retirement, reaching a 
particular age, or change in name or marital status--to trigger such a 
request.

                            Paragraph 7(c)(2)

    1. Procedure pending reapplication. A creditor may require a 
reapplication from a contractually liable party, even when there is no 
evidence of unwillingness or inability to repay, if (1) the credit was 
based on the qualifications of a person who is no longer available to 
support the credit and (2) the creditor has information indicating that 
the account holder's income by itself may be insufficient to support the 
credit. While a reapplication is pending, the creditor must allow the 
account holder full access to the account under the existing contract 
terms. The creditor may specify a reasonable time period within which 
the account holder must submit the required information.
    7(d) Signature of spouse or other person.
    1. Qualified applicant. The signature rules assure that qualified 
applicants are able to obtain credit in their own names. Thus,

[[Page 60]]

when an applicant requests individual credit, a creditor generally may 
not require the signature of another person unless the creditor has 
first determined that the applicant alone does not qualify for the 
credit requested.
    2. Unqualified applicant. When an applicant applies for individual 
credit but does not alone meet a creditor's standards, the creditor may 
require a cosigner, guarantor or the like--but cannot require that it be 
the spouse. (See commentary to Sec. 202.7(d) (5) and (6).)

                            Paragraph 7(d)(1)

    1. Joint applicant. The term joint applicant refers to someone who 
applies contemporaneously with the applicant for shared or joint credit. 
It does not refer to someone whose signature is required by the creditor 
as a condition for granting the credit requested.

                            Paragraph 7(d)(2)

    1. Jointly owned property. If an applicant requests unsecured 
credit, does not own sufficient separate property, and relies on joint 
property to establish creditworthiness, the creditor must value the 
applicant's interest in the jointly owned property. A creditor may not 
request that a nonapplicant joint owner sign any instrument as a 
condition of the credit extension unless the applicant's interest does 
not support the amount and terms of the credit sought.
    i. Valuation of applicant's interest. In determining the value of an 
applicant's interest in jointly owned property, a creditor may consider 
factors such as the form of ownership and the property's susceptibility 
to attachment, execution, severance, or partition; the value of the 
applicant's interest after such action; and the cost associated with the 
action. This determination must be based on the form of ownership prior 
to or at consummation, and not on the possibility of a subsequent 
change. For example, in determining whether a married applicant's 
interest in jointly owned property is sufficient to satisfy the 
creditor's standards of creditworthiness for individual credit, a 
creditor may not consider that the applicant's separate property may be 
transferred into tenancy by the entirety after consummation. Similarly, 
a creditor may not consider the possibility that the couple may divorce. 
Accordingly, a creditor may not require the signature of the 
nonapplicant spouse in these or similar circumstances.
    ii. Other options to support credit. If the applicant's interest in 
jointly owned property does not support the amount and terms of credit 
sought, the creditor may offer the applicant other options to provide 
additional support for the extension of credit. For example--
    A. Requesting an additional party (see Sec. 202.7(d)(5));
    B. Offering to grant the applicant's request on a secured basis (see 
Sec. 202.7(d)(4)); or
    C. Asking for the signature of the joint owner on an instrument that 
ensures access to the property in the event of the applicant's death or 
default, but does not impose personal liability unless necessary under 
state law (e.g., a limited guarantee). A creditor may not routinely 
require, however, that a joint owner sign an instrument (such as a 
quitclaim deed) that would result in the forfeiture of the joint owner's 
interest in the property.
    2. Need for signature--reasonable belief. A creditor's reasonable 
belief as to what instruments need to be signed by a person other than 
the applicant should be supported by a thorough review of pertinent 
statutory and decisional law or an opinion of the state attorney 
general.

                            Paragraph 7(d)(3)

    1. Residency. In assessing the creditworthiness of a person who 
applies for credit in a community property state, a creditor may assume 
that the applicant is a resident of the state unless the applicant 
indicates otherwise.

                            Paragraph 7(d)(4)

    1. Creation of enforceable lien. Some state laws require that both 
spouses join in executing any instrument by which real property is 
encumbered. If an applicant offers such property as security for credit, 
a creditor may require the applicant's spouse to sign the instruments 
necessary to create a valid security interest in the property. The 
creditor may not require the spouse to sign the note evidencing the 
credit obligation if signing only the mortgage or other security 
agreement is sufficient to make the property available to satisfy the 
debt in the event of default. However, if under state law both spouses 
must sign the note to create an enforceable lien, the creditor may 
require them to do so.
    2. Need for signature--reasonable belief. Generally, a signature to 
make the secured property available will only be needed on a security 
agreement. A creditor's reasonable belief that, to assure access to the 
property, the spouse's signature is needed on an instrument that imposes 
personal liability should be supported by a thorough review of pertinent 
statutory and decisional law or an opinion of the state attorney 
general.
    3. Integrated instruments. When a creditor uses an integrated 
instrument that combines the note and the security agreement, the spouse 
cannot be required to sign the integrated instrument if the signature is 
only needed to grant a security interest. But the spouse could be asked 
to sign an integrated

[[Page 61]]

instrument that makes clear--for example, by a legend placed next to the 
spouse's signature--that the spouse's signature is only to grant a 
security interest and that signing the instrument does not impose 
personal liability.

                            Paragraph 7(d)(5)

    Qualifications of additional parties. In establishing guidelines for 
eligibility of guarantors, cosigners, or similar additional parties, a 
creditor may restrict the applicant's choice of additional parties but 
may not discriminate on the basis of sex, marital status or any other 
prohibited basis. For example, the creditor could require that the 
additional party live in the creditor's market area.
    2. Reliance on income of another person--individual credit. An 
applicant who requests individual credit relying on the income of 
another person (including a spouse in a noncommunity property state) may 
be required to provide the signature of the other person to make the 
income available to pay the debt. In community property states, the 
signature of a spouse may be required if the applicant relies on the 
spouse's separate income. If the applicant relies on the spouse's future 
earnings that as a matter of state law cannot be characterized as 
community property until earned, the creditor may require the spouse's 
signature, but need not do so--even if it is the creditor's practice to 
require the signature when an applicant relies on the future earnings of 
a person other than a spouse. (See Sec. 202.6(c) on consideration of 
state property laws.)
    3. Renewals. If the borrower's creditworthiness is reevaluated when 
a credit obligation is renewed, the creditor must determine whether an 
additional party is still warranted and, if not, release the additional 
party.

                            Paragraph 7(d)(6)

    1. Guarantees. A guarantee on an extension of credit is part of a 
credit transaction and therefore subject to the regulation. A creditor 
may require the personal guarantee of the partners, directors, or 
officers of a business, and the shareholders of a closely held 
corporation, even if the business or corporation is creditworthy. The 
requirement must be based on the guarantor's relationship with the 
business or corporation, however, and not on a prohibited basis. For 
example, a creditor may not require guarantees only for women-owned or 
minority-owned businesses. Similarly, a creditor may not require 
guarantees only from the married officers of a business or married 
shareholders of a closely held corporation.
    2. Spousal guarantees. The rules in Sec. 202.7(d) bar a creditor 
from requiring a signature of a guarantor's spouse just as they bar the 
creditor from requiring the signature of an applicant's spouse. For 
example, although a creditor may require all officers of a closely held 
corporation to personally guarantee a corporate loan, the creditor may 
not automatically require that spouses of married officers also sign the 
guarantee. If an evaluation of the financial circumstances of an officer 
indicates that an additional signature is necessary, however, the 
creditor may require the signature of a spouse in appropriate 
circumstances in accordance with Sec. 202.7(d)(2).
    7(e) Insurance.
    1. Differences in terms. Differences in the availability, rates, and 
other terms on which credit-related casualty insurance or credit life, 
health, accident, or disability insurance is offered or provided to an 
applicant does not violate Regulation B.
    2. Insurance information. A creditor may obtain information about an 
applicant's age, sex, or marital status for insurance purposes. The 
information may only be used, however, for determining eligibility and 
premium rates for insurance, and not in making the credit decision.

             Section 202.8--Special Purpose Credit Programs

    8(a) Standards for programs.
    1. Determining qualified programs. The Board does not determine 
whether individual programs qualify for special purpose credit status, 
or whether a particular program benefits an ``economically disadvantaged 
class of persons.'' The agency or creditor administering or offering the 
loan program must make these decisions regarding the status of its 
program.
    2. Compliance with a program authorized by Federal or State law. A 
creditor does not violate Regulation B when it complies in good faith 
with a regulation promulgated by a government agency implementing a 
special purpose credit program under Sec. 202.8(a)(1). It is the 
agency's responsibility to promulgate a regulation that is consistent 
with Federal and State law.
    3. Expressly authorized. Credit programs authorized by Federal or 
State law include programs offered pursuant to Federal, State or local 
statute, regulation or ordinance, or by judicial or administrative 
order.
    4. Creditor liability. A refusal to grant credit to an applicant is 
not a violation of the act or regulation if the applicant does not meet 
the eligibility requirements under a special purpose credit program.
    5. Determining need. In designing a special-purpose program under 
Sec. 202.8(a), a for-profit organization must determine that the program 
will benefit a class of people who would otherwise be denied credit or 
would receive it on less favorable terms. This determination can be 
based on a broad analysis using the organization's own research or data 
from outside sources including governmental reports and studies. For 
example, a bank could

[[Page 62]]

review Home Mortgage Disclosure Act data along with demographic data for 
its assessment area and conclude that there is a need for a special-
purpose credit program for low-income minority borrowers.
    6. Elements of the program. The written plan must contain 
information that supports the need for the particular program. The plan 
also must either state a specific period of time for which the program 
will last, or contain a statement regarding when the program will be 
reevaluated to determine if there is a continuing need for it.
    8(b) Rules is other sections.
    1. Applicability of rules. A creditor that rejects an application 
because the applicant does not meet the eligibility requirements (common 
characteristic or financial need, for example) must nevertheless notify 
the applicant of action taker as required by Sec. 202.9.
    8(c) Special rule concerning requests and use of information.
    1. Request of prohibited information. This section permits a 
creditor to request and consider certain information that would 
otherwise be prohibited by Secs. 202.5 and 202.6 to determine an 
applicant's eligibility for a particular program.
    2. Examples. Examples of programs under which the creditor can ask 
for and consider information related to prohibited basis are:
     Energy conservation programs to assist the elderly, for 
which the creditor must consider the applicant's age.
     Programs under a Minority Enterprise Small Business 
Investment Corporation, for which a creditor must consider the 
applicant's minority status.
    8(d) Special rule in the case of financial need.
    1. Request of prohibited information. This section permits a 
creditor to request and consider certain information that would 
otherwise be prohibited by Secs. 202.5 and 202.6, and to require 
signatures that would otherwise be prohibited by Sec. 202.7(d).
    2. Examples. Examples of programs in which financial need is a 
criterion are:
     Subsidized housing programs for low- to moderate-income 
households, for which a creditor may have to consider the applicant's 
receipt of alimony or child support, the spouse's or parents' income, 
etc.
     Student loan programs based on the family's financial need, 
for which a creditor may have to consider to spouse's or parents' 
financial resources.
    3. Student loans. In a guaranteed student loan program, a creditor 
may obtain the signature of a parent as a guarantor when required by 
federal or state law or agency regulation, or when the student does not 
meet the creditor's standards of creditworthiness. (See Sec. 202.7(d)(1) 
and (5).) The creditor may not require an additional signature when a 
student has a work or credit history that satisfies the creditor's 
standards.

                      Section 202.9--Notifications

    1. Use of the term adverse action. The regulation does not require 
that a creditor use the term adverse in communicating to an applicant 
that a request for an extension of credit has not been approved. In 
notifying an applicant of adverse action as defined by Sec. 202.2(c)(1), 
a creditor may use any words or phrases that describe the action taken 
on the application.
    2. Expressly withdrawn applications. When an applicant expressly 
withdraws a credit application, the creditor is not required to comply 
with the notification requirements under Sec. 202.9. (The creditor must, 
however, comply with the record retention requirements of the 
regulation. See Sec. 202.12(b)(3).)
    3. When notification occurs. Notification occurs when a creditor 
delivers or mails a notice to the applicant's last known address or, in 
the case of an oral notification, when the creditor communicates the 
credit decision to the applicant.
    4. Location of notice. The notifications required under Sec. 202.9 
may appear on either or both sides of a form or letter.
    5. Prequalification and preapproval programs. Whether a creditor 
must provide a notice of action taken for a prequalification or 
preapproval request depends on the creditor's response to the request, 
as discussed in the commentary to section 202.2(f). For instance, a 
creditor may treat the request as an inquiry if the creditor provides 
general information such as loan terms and the maximum amount a consumer 
could borrow under various loan programs, explaining the process the 
consumer must follow to submit a mortgage application and the 
information the creditor will analyze in reaching a credit decision. On 
the other hand, a creditor has treated a request as an application, and 
is subject to the adverse action notice requirements of Sec. 202.9 if, 
after evaluating information, the creditor decides that it will not 
approve the request and communicates that decision to the consumer. For 
example, if in reviewing a request for prequalification, a creditor 
tells the consumer that it would not approve an application for a 
mortgage because of a bankruptcy in the consumer's record, the creditor 
has denied an application for credit.
    9(a) Notification of action taken, ECOA notice, and statement of 
specific reasons.

                            Paragraph 9(a)(1)

    1. Timing of notice--when an application is complete. Once a 
creditor has obtained all the information it normally considers in 
making a credit decision, the application is complete and the creditor 
has 30 days in which to notify the applicant of the credit decision. 
(See also comment 2(f)-5.)
    2. Notification of approval. Notification of approval may be express 
or by implication.

[[Page 63]]

For example, the creditor will satisfy the notification requirement when 
it gives the applicant the credit card, money, property, or services 
requested.
    3. Incomplete application--denial for incompleteness. When an 
application is incomplete regarding matters that the applicant can 
complete and the creditor lacks sufficient data for a credit decision, 
the creditor may deny the application giving as the reason for denial 
that the application is incomplete. The creditor has the option, 
alternatively, of providing a notice of incompleteness under 
Sec. 202.9(c).
    4. Incomplete application--denial for reasons other than 
incompleteness. When an application is missing information but provides 
sufficient data for a credit decision, the creditor may evaluate the 
application and notify the applicant under this section as appropriate. 
If credit is denied, the applicant must be given the specific reasons 
for the credit denial (or notice of the right to receive the reasons); 
in this instance the incompleteness of the application cannot be given 
as the reason for the denial.
    5. Length of counteroffer. Section 202.9(a)(1)(iv) does not require 
a creditor to hold a counteroffer open for 90 days or any other 
particular length of time.
    6. Counteroffer combined with adverse action notice. A creditor that 
gives the applicant a combined counteroffer and adverse action notice 
that complies with Sec. 202.9(a)(2) need not send a second adverse 
action notice if the applicant does not accept the counteroffer. A 
sample of a combined notice is contained in form C-4 of Appendix C to 
the regulation.
    7. Denial of a telephone application. When an application is 
conveyed by means of telephone and adverse action is taken, the creditor 
must request the applicant's name and address in order to provide 
written notification under this section. If the applicant declines to 
provide that information, then the creditor has no further notification 
responsibility.

                            Paragraph 9(a)(3)

    1. Coverage. In determining the rules in this paragraph that apply 
to a given business credit application, a creditor may rely on the 
applicant's assertion about the revenue size of the business. 
(Applications to start a business are governed by the rules in 
Sec. 202.9(a)(3)(i).) If an applicant applies for credit as a sole 
proprietor, the revenues of the sole proprietorship will determine which 
rules in the paragraph govern the application. However, if an applicant 
applies for business purpose credit as an individual, the rules in 
paragraph 9(a)(3)(i) apply unless the application is for trade or 
similar credit.
    2. Trade credit. The term trade credit generally is limited to a 
financing arrangement that involves a buyer and a seller--such as a 
supplier who finances the sale of equipment, supplies, or inventory; it 
does not apply to an extension of credit by a bank or other financial 
institution for the financing of such items.
    3. Factoring. Factoring refers to a purchase of accounts receivable, 
and thus is not subject to the act or regulation. If there is a credit 
extension incident to the factoring arrangement, the notification rules 
in Sec. 202.9(a)(3)(ii) apply as do other relevant sections of the act 
and regulation.
    4. Manner of compliance. In complying with the notice provisions of 
the act and regulation, creditors offering business credit may follow 
the rules governing consumer credit. Similarly, creditors may elect to 
treat all business credit the same (irrespective of revenue size) by 
providing notice in accordance with Sec. 202.9(a)(3)(i).
    5. Timing of notification. A creditor subject to 
Sec. 202.9(a)(3)(ii)(A) is required to notify a business credit 
applicant, orally or in writing, of action taken on an application 
within a reasonable time of receiving a completed application. Notice 
provided in accordance with the timing requirements of Sec. 202.9(a)(1) 
is deemed reasonable in all instances.
    9(b) Form of ECOA notice and statement specific reasons.

                            Paragraph 9(b)(1)

    1. Substantially similar notice. The ECOA notice sent with a 
notification of a credit denial or other adverse action will comply with 
the regulation if it is ``substantially similar'' to the notice 
contained in Sec. 202.9(b)(1). For example, a creditor may add a 
reference to the fact that the ECOA permits age to be considered in 
certain scoring systems, or add a reference to a similar state statute 
or regulation and to a state enforcement agency.

                            Paragraph 9(b)(2)

    1. Number of specific reasons. A creditor must disclose the 
principal reasons for denying an application or taking other adverse 
action. The regulation does not mandate that a specific number of 
reasons be disclosed, but disclosure of more than four reasons is not 
likely to be helpful to the applicant.
    2. Source of specific reasons. The specific reasons disclosed under 
Sec. 202.9 (a)(2) and (b)(2) must relate to and accurately describe the 
factors actually considered or scored by a creditor.
    3. Description of reasons. A creditor need not describe how or why a 
factor adversely affected an applicant. For example, the notice may say 
``length of residence'' rather than ``too short a period of residence.''
    4. Credit scoring system. If a creditor bases the denial or other 
adverse action on a credit scoring system, the reasons disclosed must 
relate only to those factors actually scored

[[Page 64]]

in the system. Moreover, no factor that was a principal reason for 
adverse action may be excluded from disclosure. The creditor must 
disclose the actual reasons for denial (for example, ``age of 
automobile'') even if the relationship of that factor to predicting 
creditworthiness may not be clear to the applicant.
    5. Credit scoring--method for selecting reasons. The regulation does 
not require that any one method be used for selecting reasons for a 
credit denial or other adverse action that is based on a credit scoring 
system. Various methods will meet the requirements of the regulation. 
One method is to identify the factors for which the applicant's score 
fell furthest below the average score for each of those factors achieved 
by applicants whose total score was at or slightly above the minimum 
passing score. Another method is to identify the factors for which the 
applicant's score fell furthest below the average score for each of 
those factors achieved by all applicants. These average scores could be 
calculated during the development or use of the system. Any other method 
that produces results substantially similar to either of these methods 
is also acceptable under the regulation.
    6. Judgmental system. If a creditor uses a judgmental system, the 
reasons for the denial or other adverse action must relate to those 
factors in the applicant's record actually reviewed by the person making 
the decision.
    7. Combined credit scoring and judgmental system. If a creditor 
denies an application based on a credit evaluation system that employs 
both credit scoring and judgmental components, the reasons for the 
denial must come from the component of the system that the applicant 
failed. For example, if a creditor initially credit scores an 
application and denies the credit request as a result of that scoring, 
the reasons disclosed to the applicant must relate to the factors scored 
in the system. If the application passes the credit scoring stage but 
the creditor then denies the credit request based on a judgmental 
assessment of the applicant's record, the reasons disclosed must relate 
to the factors reviewed judgmentally, even if the factors were also 
considered in the credit scoring component.
    8. Automatic denial. Some credit decision methods contain features 
that call for automatic denial because of one or more negative factors 
in the applicant's record (such as the applicant's previous bad credit 
history with that creditor, the applicant's declaration of bankruptcy, 
or the fact that the applicant is a minor). When a creditor denies the 
credit request because of an automatic-denial factor, the creditor must 
disclose that specific factor.
    9. Combined ECOA-FCRA disclosures. The ECOA requires disclosure of 
the principal reasons for denying or taking other adverse action on an 
application for an extension of credit. The Fair Credit Reporting Act 
requires a creditor to disclose when it has based its decision in whole 
or in part on information from a source other than the applicant or from 
its own files. Disclosing that a credit report was obtained and used to 
deny the application, as the FCRA requires, does not satisfy the ECOA 
requirement to disclose specific reasons. For example, if the 
applicant's credit history reveals delinquent credit obligations and the 
application is denied for that reason, to satisfy Sec. 202.9(b)(2) the 
creditor must disclose that the application was denied because of the 
applicant's delinguent credit obligations. To satisfy the FCRA 
requirement, the credit must also disclose that a credit report was 
obtained and used to deny credit. Sample forms C-1 through C-5 of 
appendix C of the regulation provide for the two disclosures.
    9(c) Incomplete applications.

                            Paragraph 9(c)(2)

    1. Reapplication. If information requested by a creditor is 
submitted by an applicant after the expiration of the time period 
designated by the creditor, the creditor may require the applicant to 
make a new application.

                            Paragraph 9(c)(3)

    1. Oral inquiries for additional information. If the applicant fails 
to provide the information in response to an oral request, a creditor 
must send a written notice to the applicant within the 30-day period 
specified in Sec. 202.9 (c)(1) and (c)(2). If the applicant does provide 
the information, the creditor shall take action on the application and 
notify the applicant in accordance with Sec. 202.9(a).
    9(g) Applications submitted through a third party.
    1. Third parties. The notification of adverse action may be given by 
one of the creditors to whom an application was submitted. 
Alternatively, the third party may be a noncreditor.
    2. Third-party notice--enforcement agency. If a single adverse 
action notice is being provided to an applicant on behalf of several 
creditors and they are under the jurisdiction of different federal 
enforcement agencies, the notice need not name each agency; disclosure 
of any one of them will suffice.
    3. Third-party notice--liability. When a notice is to be provided 
through a third party, a creditor is not liable for an act or omission 
of the third party that constitutes a violation of the regulation if the 
creditor accurately and in a timely manner provided the third party with 
the information necessary for the notification and maintains reasonable 
procedures adapted to prevent such violations.

[[Page 65]]

            Section 202.10--Furnishing of Credit Information

    1. Scope. The requirements of Sec. 202.10 for designating and 
reporting credit information apply only to consumer credit transactions. 
Moreover, they apply only to creditors that opt to furnish credit 
information to credit bureaus or to other creditors; there is no 
requirement that a creditor furnish credit information on its accounts.
    2. Reporting on all accounts. The requirements of Sec. 202.10 apply 
only to accounts held or used by spouses. However, a creditor has the 
option to designate all joint accounts (or all accounts with an 
authorized user) to reflect the participation of both parties, whether 
or not the accounts are held by persons married to each other.
    3. Designating accounts. In designating accounts and reporting 
credit information, a creditor need not distinguish between accounts on 
which the spouse is an authorized user and accounts on which the spouse 
is a contractually liable party.
    4. File and index systems. The regulation does not require the 
creation or maintenance of separate files in the name of each 
participant on a joint or user account, or require any other particular 
system of recordkeeping or indexing. It requires only that a creditor be 
able to report information in the name of each spouse on accounts 
covered by Sec. 202.10. Thus, if a creditor receives a credit inquiry 
about the wife, it should be able to locate her credit file without 
asking the husband's name.
    10(a) Designation of accounts.
    1. New parties. When new parties who are spouses undertake a legal 
obligation on an account, as in the case of a mortgage loan assumption, 
the creditor should change the designation on the account to reflect the 
new parties and should furnish subsequent credit information on the 
account in the new names.
    2. Request to change designation of account. A request to change the 
manner in which information concerning an account is furnished does not 
alter the legal liability of either spouse upon the account and does not 
require a creditor to change the name in which the account is 
maintained.

                  Section 202.11  Relation to State Law

    11(a) Inconsistent state laws.
    1. Preemption determination--New York. Effective November 11, 1988, 
the Board has determined that the following provisions in the state law 
of New York are preempted by the federal law:
     Article 15, section 296a(1)(b)--Unlawful discriminatory 
practices in relation to credit on the basis of race, creed, color, 
national origin, age, sex, marital status, or disability. This provision 
is preempted to the extent that it bars taking a prohibited basis into 
account when establishing eligibility for certain special-purpose credit 
programs.
     Article 15, section 296a(1)(c)--Unlawful discriminatory 
practice to make any record or inquiry based on race, creed, color, 
national origin, age, sex, marital status, or disability. This provision 
is preempted to the extent that it bars a creditor from requesting and 
considering information regarding the particular characteristics (for 
example, race, national origin, or sex) required for eligibility for 
special-purpose credit programs.
    2. Preemption determination--Ohio. Effective July 23, 1990, the 
Board has determined that the following provision in the state law of 
Ohio is preempted by the federal law:

     Section 4112.021(B)(1)--Unlawful discriminatory practices 
in credit transactions. This provision is preempted to the extent that 
it bars asking or favorably considering the age of an elderly applicant; 
prohibits the consideration of age in a credit scoring system; permits 
without limitation the consideration of age in real estate transactions; 
and limits the consideration of age in special-purpose credit programs 
to certain government-sponsored programs identified in the state law.

                    Section 202.12--Record Retention

    12(a) Retention of prohibited information.
    1. Receipt of prohibited information. Unless the creditor 
specifically requested such information, a creditor does not violate 
this section when it receives prohibited information from a consumer 
reporting agency.
    2. Use of retained information. Although a creditor may keep in its 
files prohibited information as provided in Sec. 202.12(a), the creditor 
may use the information in evaluating credit applications only if 
permitted to do so by Sec. 202.6.
    12(b) Preservation of records.
    1. Copies. A copy of the original record includes carbon copies, 
photocopies, microfilm or microfiche copies, or copies produced by any 
other accurate retrieval system, such as documents stored and reproduced 
by computer. A creditor that uses a computerized or mechanized system 
need not keep a written copy of a document (for example, an adverse 
action notice) if it can regenerate all pertinent information in a 
timely manner for examination or other purposes.
    2. Computerized decisions. A creditor that enters information items 
from a written application into a computerized or mechnaized system and 
makes the credit decision mechanically, based only on the items of 
information entered into the system, may comply with Sec. 202.12(b) by 
retaining the information actually entered. It is not required to store 
the complete written application, nor is it required to enter the 
remaining items of information into the system. If the transaction is 
subject to Sec. 202.13, however, the creditor is

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required to enter and retain the data on personal characteristics in 
order to comply with the requirements of that section.

                           Paragraph 12(b)(3)

    1. Withdrawn and brokered applications. In most cases, the 25-month 
retention period for applications runs from the date a notification is 
sent to the applicant granting or denying the credit requested. In 
certain transactions, a creditor is not obligated to provide a notice of 
the action taken. (See, for example, comment 9-2.) In such cases, the 
25-month requirement runs from the date of application, as when:
     An application is withdrawn by the applicant.
     An application is submitted to more than one creditor on 
behalf of the applicant, and the application is approved by one of the 
other creditors.
    12(b)(6)  Self-tests
    1. The rule requires all written or recorded information about a 
self-test to be retained for 25 months after a self-test has been 
completed. For this purpose, a self-test is completed after the creditor 
has obtained the results and made a determination about what corrective 
action, if any, is appropriate. Creditors are required to retain 
information about the scope of the self-test, the methodology used and 
time period covered by the self-test, the report or results of the self-
test including any analysis or conclusions, and any corrective action 
taken in response to the self-test.

           Section 202.13--Information for Monitoring purposes

    13(a) Information to be requested.
    1. Natural person. Section 202.13 applies only to applications from 
natural persons.
    2. Principal residence. The requirements of Sec. 202.13 apply only 
if an application relates to a dwelling that is or will be occupied by 
the applicant as the principal residence. A credit application related 
to a vacation home or a rental unit is not covered. In the case of a 
two- to four-unit dwelling, the application is covered if the applicant 
intends to occupy one of the units as a principal residence.
    3. Temporary financing. An application for temporary financing to 
construct a dwelling is not subject to Sec. 202.13. But an application 
for both a temporary loan to finance construction of a dwelling and a 
permanent mortgage loan to take effect upon the completion of 
construction is subject to Sec. 202.13.
    4. New principal residence. A person can have only one principal 
residence at a time. However, if a person buys or builds a new dwelling 
that will become that person's principal residence within a year or upon 
completion of construction, the new dwelling is considered the principal 
residence for purposes of Sec. 202.13.
    5. Transactions not covered. The information-collection requirements 
of this section apply to applications for credit primarily for the 
purchase or refinancing of a dwelling that is or will become the 
applicant's principal residence. Therefore, applications for credit 
secured by the applicant's principal residence but made primarily for a 
purpose other than the purchase or refinancing of the principal 
residence (such as loans for home improvement and debt consolidation) 
are not subject to information-collection requirements. An application 
for an open-end home equity line of credit is not subject to this 
section unless it is readily apparent to the creditor when the 
application is taken that the primary purpose of the line is for the 
purchase or refinancing of a principal dwelling.
    6. Refinancings. A refinancing occurs when an existing obligation is 
satisfied and replaced by a new obligation undertaken by the same 
borrower. A creditor that receives an application to refinance an 
existing extension of credit made by that creditor for the purchase of 
the applicant's dwelling may request the monitoring information again 
but is not required to do so if it was obtained in the earlier 
transaction.
    7. Data collection under Regulation C. See comment 5(b)(2)-2.
    13(b) Obtaining of information.
    1. Forms for collecting data. A creditor may collect the information 
specified in Sec. 202.13(a) either on an application form or on a 
separate form referring to the application.
    2. Written applications. The regulation requires written 
applications for the types of credit covered by Sec. 202.13. A creditor 
can satisfy this requirement by recording in writing or by means of 
computer the information that the applicant provides orally and that the 
creditor normally considers in a credit decision.
    3. Telephone, mail applications. If an applicant does not apply in 
person for the credit requested, a creditor does not have to complete 
the monitoring information. For example:
     When a creditor accepts an application by telephone, it 
does not have to request the monitoring information.
     When a creditor accepts an application by mail, it does not 
have to make a special request to the applicant if the applicant fails 
to complete the monitoring information on the application form sent to 
the creditor.
    If it is not evident on the face of the application that it was 
received by mail or telephone, the creditor should indicate on the form 
or other application record how the application was received.
    4. Applications through electronic media. If an applicant applies 
through an electronic medium (for example, the Internet or a facsimile) 
without video capability that allows

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the creditor to see the applicant, the creditor may treat the 
application as if it were received by mail or telephone.
    5. Applications through video. If a creditor takes an application 
through a medium that allows the creditor to see the applicant, the 
creditor treats the application as taken in person and must note the 
monitoring information on the basis of visual observation or surname, if 
the applicant chooses not to provide the information.
    6. Applications through loan-shopping services. When a creditor 
receives an application through an unaffiliated loan-shopping service, 
it does not have to request the monitoring information for purposes of 
the ECOA or Regulation B. Creditors subject to the Home Mortgage 
Disclosure Act should be aware, however, that data collection may be 
called for under Regulation C which generally requires creditors to 
report, among other things, the sex and race or national origin of an 
applicant on brokered applications or applications received through a 
correspondent.
    7. Inadvertent notation. If a creditor inadvertently obtains the 
monitoring information in a dwelling related transaction not covered by 
Sec. 202.13, the creditor may process and retain the application without 
violating the regulation.
    13(c) Disclosure to applicant(s).
    1. Procedures for providing disclosures. The disclosures to an 
applicant regarding the monitoring information may be provided in 
writing. Appendix B contains a sample disclosure. A creditor may devise 
its own disclosure so long as it is substantially similar. The creditor 
need not orally request the applicant to provide the monitoring 
information if it is requested in writing.
    13(d) Substitute monitoring program.
    1. Substitute program. An enforcement agency may adopt, under its 
established rulemaking or enforcement procedures, a program requiring 
creditors under its jurisdiction to collect information in addition to 
that required by this section.

         Section 202.14--Enforcement, penalties and liabilities

    14(c) Failure of compliance.
    1. Inadvertent errors. Inadvertent errors include, but are not 
limited to, clerical mistake, calculation error, computer malfunction, 
and printing error. An error of legal judgment is not an inadvertent 
error under the regulation.
    2. Correction of error. For inadvertent errors that occur under 
Secs. 202.12 and 202.13, this section requires that they be corrected 
prospectively only.

     Section 202.15--Incentives for Self-testing and Self-correction

                          15(a)  General Rules

             15(a)(1)  Voluntary Self-Testing and Correction

    1. Activities required by any governmental authority are not 
voluntary self-tests. A governmental authority includes both 
administrative and judicial authorities for federal, state, and local 
governments.

                  15(a)(2)  Corrective Action Required

    1. To qualify for the privilege, appropriate corrective action is 
required when the results of a self-test show that it is more likely 
than not that there has been a violation of the ECOA or this regulation. 
A self-test is also privileged when it identifies no violations.
    2. In some cases, the issue of whether certain information is 
privileged may arise before the self-test is complete or corrective 
actions are fully under way. This would not necessarily prevent a 
creditor from asserting the privilege. In situations where the self-test 
is not complete, for the privilege to apply the lender must satisfy the 
regulation's requirements within a reasonable period of time. To assert 
the privilege where the self-test shows a likely violation, the rule 
requires, at a minimum, that the creditor establish a plan for 
corrective action and a method to demonstrate progress in implementing 
the plan. Creditors must take appropriate corrective action on a timely 
basis after the results of the self-test are known.
    3. A creditor's determination about the type of corrective action 
needed, or a finding that no corrective action is required, is not 
conclusive in determining whether the requirements of this paragraph 
have been satisfied. If a creditor's claim of privilege is challenged, 
an assessment of the need for corrective action or the type of 
corrective action that is appropriate must be based on a review of the 
self-testing results, which may require an in camera inspection of the 
privileged documents.

                        15(a)(3) Other privileges

    1. A creditor may assert the privilege established under this 
section in addition to asserting any other privilege that may apply, 
such as the attorney-client privilege or the work product privilege. 
Self-testing data may still be privileged under this section, whether or 
not the creditor's assertion of another privilege is upheld.

[[Page 68]]

                         15(b) Self-test Defined

                           15(b)(1) Definition

                          Paragraph 15(b)(1)(i)

    1. To qualify for the privilege, a self-test must be sufficient to 
constitute a determination of the extent or effectiveness of the 
creditor's compliance with the act and Regulation B. Accordingly, a 
self-test is only privileged if it was designed and used for that 
purpose. A self-test that is designed or used to determine compliance 
with other laws or regulations or for other purposes is not privileged 
under this rule. For example, a self-test designed to evaluate employee 
efficiency or customers' satisfaction with the level of service provided 
by the creditor is not privileged even if evidence of discrimination is 
uncovered incidentally. If a self-test is designed for multiple 
purposes, only the portion designed to determine compliance with the 
ECOA is eligible for the privilege.

                         Paragraph 15(b)(1)(ii)

    1. The principal attribute of self-testing is that it constitutes a 
voluntary undertaking by the creditor to produce new data or factual 
information that otherwise would not be available and could not be 
derived from loan or application files or other records related to 
credit transactions. Self-testing includes, but is not limited to, the 
practice of using fictitious applicants for credit (testers), either 
with or without the use of matched pairs. A creditor may elect to test a 
defined segment of its business, for example, loan applications 
processed by a specific branch or loan officer, or applications made for 
a particular type of credit or loan program. A creditor also may use 
other methods of generating information that is not available in loan 
and application files, such as surveying mortgage loan applicants. To 
the extent permitted by law, creditors might also develop new methods 
that go beyond traditional pre-application testing, such as hiring 
testers to submit fictitious loan applications for processing.
    2. The privilege does not protect a creditor's analysis performed as 
part of processing or underwriting a credit application. A creditor's 
evaluation or analysis of its loan files, Home Mortgage Disclosure Act 
data, or similar types of records (such as broker or loan officer 
compensation records) does not produce new information about a 
creditor's compliance and is not a self-test for purposes of this 
section. Similarly, a statistical analysis of data derived from existing 
loan files is not privileged.

              15(b)(3) Types of Information not Privileged

                          Paragraph 15(b)(3)(i)

    1. The information listed in this paragraph is not privileged and 
may be used to determine whether the prerequisites for the privilege 
have been satisfied. Accordingly, a creditor might be asked to identify 
the self-testing method, for example, whether pre-application testers 
were used or data were compiled by surveying loan applicants. 
Information about the scope of the self test (such as the types of 
credit transactions examined, or the geographic area covered by the 
test) also is not privileged.

                         Paragraph 15(b)(3)(ii)

    1. Property appraisal reports, minutes of loan committee meetings or 
other documents reflecting the basis for a decision to approve or deny 
an application, loan policies or procedures, underwriting standards, and 
broker compensation records are examples of the types of records that 
are not privileged. If a creditor arranges for testers to submit loan 
applications for processing, the records are not related to actual 
credit transactions for purposes of this paragraph and may be privileged 
self-testing records.

                   15(c) Appropriate Corrective Action

    1. The rule only addresses what corrective actions are required for 
a creditor to take advantage of the privilege in this section. A 
creditor may still be required to take other actions or provide 
additional relief if a formal finding of discrimination is made.

                      15(c)(1) General Requirement

    1. Appropriate corrective action is required even though no 
violation has been formally adjudicated or admitted by the creditor. In 
determining whether it is more likely than not that a violation 
occurred, a creditor must treat testers as if they are actual applicants 
for credit. A creditor may not refuse to take appropriate corrective 
action under this section because the self-test used fictitious loan 
applicants. The fact that a tester's agreement with the creditor waives 
the tester's legal right to assert a violation does not eliminate the 
requirement for the creditor to take corrective action, although no 
remedial relief for the tester is required under paragraph 15(c)(3).

     15(c)(2) Determining the Scope of Appropriate Corrective Action

    1. Whether a creditor has taken or is taking corrective action that 
is appropriate will be determined on a case-by-case basis. Generally, 
the scope of the corrective action that is needed to preserve the 
privilege is governed by the scope of the self-test. For example, a 
creditor that self-tests mortgage loans and discovers evidence of 
discrimination may focus its corrective actions on mortgage loans, and 
is not required to expand its testing to other types of loans.
    2. In identifying the policies or practices that are the likely 
cause of the violation, a

[[Page 69]]

creditor might identify inadequate or improper lending policies, failure 
to implement established policies, employee conduct, or other causes. 
The extent and scope of a likely violation may be assessed by 
determining which areas of operations are likely to be affected by those 
policies and practices, for example, by determining the types of loans 
and stages of the application process involved and the branches or 
offices where the violations may have occurred.
    3. Depending on the method and scope of the self-test and the 
results of the test, appropriate corrective action may include one or 
more of the following:
    i. If the self-test identifies individuals whose applications were 
inappropriately processed, offering to extend credit if the application 
was improperly denied and compensating such persons for out-of-pocket 
costs and other compensatory damages;
    ii. Correcting institutional polices or procedures that may have 
contributed to the likely violation, and adopting new policies as 
appropriate;
    iii. Identifying and then training and/or disciplining the employees 
involved;
    iv. Developing outreach programs, marketing strategies, or loan 
products to serve more effectively segments of the lender's markets that 
may have been affected by the likely discrimination; and
    v. Improving audit and oversight systems to avoid a recurrence of 
the likely violations.

                        15(c)(3)  Types of Relief

                         Paragraph 15(c)(3)(ii)

    1. The use of pre-application testers to identify policies and 
practices that illegally discriminate does not require creditors to 
review existing loan files for the purpose of identifying and 
compensating applicants who might have been adversely affected.
    2. If a self-test identifies a specific applicant that was subject 
to discrimination on a prohibited basis, in order to qualify for the 
privilege in this section the creditor must provide appropriate remedial 
relief to that applicant; the creditor would not be required under this 
paragraph to identify other applicants who might also have been 
adversely affected.

                         Paragraph 15(c)(3)(iii)

    1. A creditor is not required to provide remedial relief to an 
applicant that would not be available by law. An applicant might also be 
ineligible from obtaining certain types of relief due to changed 
circumstances. For example, a creditor is not required to offer credit 
to a denied applicant if the applicant no longer qualifies for the 
credit due to a change in financial circumstances, although some other 
type of relief might be appropriate.

                      15(d)(1)  Scope of Privilege

    1. The privilege applies with respect to any examination, 
investigation or proceeding by federal, state, or local government 
agencies relating to compliance with the Act or this regulation. 
Accordingly, in a case brought under the ECOA, the privilege established 
under this section preempts any inconsistent laws or court rules to the 
extent they might require disclosure of privileged self-testing data. 
The privilege does not apply in other cases, for example, litigation 
filed solely under a state's fair lending statute. In such cases, if a 
court orders a creditor to disclose self-test results, the disclosure is 
not a voluntary disclosure or waiver of the privilege for purposes of 
paragraph 15(d)(2); creditors may protect the information by seeking a 
protective order to limit availability and use of the self-testing data 
and prevent dissemination beyond what is necessary in that case. 
Paragraph 15(d)(1) precludes a party who has obtained privileged 
information from using it in a case brought under the ECOA, provided the 
creditor has not lost the privilege through voluntarily disclosure under 
paragraph 15(d)(2).

                       15(d)(2)  Loss of Privilege

                          Paragraph 15(d)(2)(i)

    1. Corrective action taken by a creditor, by itself, is not 
considered a voluntary disclosure of the self-test report or results. 
For example, a creditor does not disclose the results of a self-test 
merely by offering to extend credit to a denied applicant or by inviting 
the applicant to reapply for credit. Voluntary disclosure could occur 
under this paragraph, however, if the creditor disclosed the self-test 
results in connection with a new offer of credit.
    2. Disclosure of self-testing results to an independent contractor 
acting as an auditor or consultant for the creditor on compliance 
matters does not result in loss of the privilege.

                         Paragraph 15(d)(2)(ii)

    1. The privilege is lost if the creditor discloses privileged 
information, such as the results of the self-test. The privilege is not 
lost if the creditor merely reveals or refers to the existence of the 
self-test.

                         Paragraph 15(d)(2)(iii)

    1. A creditor's claim of privilege may be challenged in a court or 
administrative law proceeding with appropriate jurisdiction. In 
resolving the issue, the presiding officer may require the creditor to 
produce privileged information about the self-test.

[[Page 70]]

        Paragraph 15(d)(3)  Limited use of Privileged Information

    1. A creditor may be required to produce privileged documents for 
the purpose of determining a penalty or remedy after a violation of the 
ECOA or Regulation B has been formally adjudicated or admitted. A 
creditor's compliance with this requirement does not evidence the 
creditor's intent to forfeit the privilege.

                   Appendix B--Model Application Forms

    1. FHLMC/FNMA form--residential loan application. The uniform 
residential loan application form (FHLMC 65/FNMA 1003), including 
supplemental form (FHLMC 65A/FNMA 1003A), prepared by the Federal Home 
Loan Mortgage Corporation and the Federal National Mortgage Association 
and dated May 1991 may be used by creditors without violating this 
regulation even though the form's listing of race or national origin 
categories in the ``Information for Government Monitoring Purposes'' 
section differs from the classifications currently specified in 
Sec. 202.13(a)(1). The classifications used on the FNMA-FHLMC form are 
those required by the U.S. Office of Management and Budget for notation 
of race and ethnicity by federal programs in their administrative 
reporting and statistical activities. Creditors that are governed by the 
monitoring requirements of Regulation B (which limits collection to 
applications primarily for the purchase or refinancing of the 
applicant's principal residence) should delete, strike, or modify the 
data-collection section on the form when using it for transactions not 
covered by Sec. 202.13(a) to ensure that they do not collect the 
information. Creditors that are subject to more extensive collection 
requirements by a substitute monitoring program under Sec. 202.13(d) or 
by the Home Mortgage Disclosure Act (HMDA) may use the form as issued, 
in compliance with the substitute program or HMDA.
    2. FHLMC/FNMA form--home-improvement loan application. The home-
improvement and energy loan application form (FHLMC 703/FNMA 1012), 
prepared by the Federal Home Loan Mortgage Corporation and the Federal 
National Mortgage Association and dated October 1986, complies with the 
requirements of the regulation for some creditors but not others because 
of the form's section on ``Information for Government Monitoring 
Purposes.'' Creditors that are governed by Sec. 202.13(a) of the 
regulation (which limits collection to applications primarily for the 
purchase or refinancing of the applicant's principal residence) should 
delete, strike, or modify the data collection section on the form when 
using it for transactions not covered by Sec. 202.13(a) to assure that 
they do not collect the information. Creditors that are subject to more 
extensive collection requirements by a substitute monitoring program 
under Sec. 202.13(d) may use the form as issued, in compliance with that 
substitute program.

                  Appendix C--Sample Notification Forms

    Form C-9. Creditors may design their own form, add to, or modify the 
model form to reflect their individual policies and procedures. For 
example, a creditor may want to add:
    i. A telephone number that applicants may call to leave their name 
and the address to which an appraisal report should be sent.
    ii. A notice of the cost the applicant will be required to pay the 
creditor for the appraisal or a copy of the report.
[50 FR 48026, Nov. 20, 1985, as amended at 52 FR 10733, Apr. 3, 1987; 53 
FR 11045, Apr. 5, 1988; 54 FR 9416, Mar. 7, 1989; 55 FR 12472, Apr. 4, 
1990; 55 FR 14830, Apr. 19, 1990; Reg. B, EC-1, 56 FR 14462, Apr. 10, 
1991; 56 FR 16265, Apr. 22, 1991; Reg. B, EC-1, 57 FR 12203, Apr. 9, 
1992; Reg. B, 60 FR 29967, 29968, 29969, June 7, 1995; 61 FR 50950, 
50951, Sept. 30, 1996; 62 FR 66419, Dec. 18, 1997]

    Effective Date Note: At 62 FR 66419, Dec. 18, 1997, Supplement I to 
Part 202 was amended under Section 202.12 by adding paragraph 12(b)(6), 
and by adding Section 202.15, effective Jan. 30, 1998.



PART 203--HOME MORTGAGE DISCLOSURE (REGULATION C)--Table of Contents




Sec.
203.1  Authority, purpose, and scope.
203.2  Definitions.
203.3  Exempt institutions.
203.4  Compilation of loan data.
203.5  Disclosure and reporting.
203.6  Enforcement.


Appendix A to Part 203--Form and Instructions for Completion of HMDA 
          Loan/Application Register
Appendix B to Part 203--Form and Instructions for Data Collection on 
          Race or National Origin and Sex
Supplement I to Part 203--Staff Commentary

    Authority:  12 U.S.C. 2801-2810.

    Source:  54 FR 51362, Dec. 15, 1989, unless otherwise noted.



Sec. 203.1  Authority, purpose, and scope.

    (a) Authority. This regulation is issued by the Board of Governors 
of the Federal Reserve System (``Board'') pursuant to the Home Mortgage 
Disclosure Act (12 U.S.C. 2801 et seq.), as amended. The information-
collection requirements have been approved by the U.S. Office of 
Management and

[[Page 71]]

Budget under 44 U.S.C. 3501 et seq. and have been assigned OMB control 
number 7100-0247.
    (b) Purpose. (1) This regulation implements the Home Mortgage 
Disclosure Act, which is intended to provide the public with loan data 
that can be used:
    (i) To help determine whether financial institutions are serving the 
housing needs of their communities;
    (ii) To assist public officials in distributing public-sector 
investments so as to attract private investment to areas where it is 
needed; and
    (iii) To assist in identifying possible discriminatory lending 
patterns and enforcing antidiscrimination statutes.
    (2) Neither the act nor this regulation is intended to encourage 
unsound lending practices or the allocation of credit.
    (c) Scope. This regulation applies to certain financial 
institutions, including banks, saving associations, credit unions, and 
other mortgage lending institutions, as defined in Sec. 203.2(e). It 
requires an institution to report data to its supervisory agency about 
home purchase and home improvement loans it originates or purchases, or 
for which it receives applications; and to disclose certain data to the 
public.
    (d) Loan aggregation and central data depositories. Using the loan 
data made available by financial institutions, the Federal Financial 
Institutions Examination Council will prepare disclosure statements and 
will produce various reports for individual institutions for each 
metropolitan statistical area (MSA), showing lending patterns by 
location, age of housing stock, income level, sex, and racial 
characteristics. The disclosure statements and reports will be available 
to the public at central data depositories located in each MSA. A 
listing of central data depositories can be obtained from the Federal 
Financial Institutions Examination Council, Washington, DC 20006.



Sec. 203.2  Definitions.

    In this regulation:
    (a) Act means the Home Mortgage Disclosure Act (12 U.S.C. 2801 et 
seq.), as amended.
    (b) Application means an oral or written request for a home purchase 
or home improvement loan that is made in accordance with procedures 
established by a financial institution for the type of credit requested.
    (c) Branch office means: (1) Any office of a bank, savings 
association, or credit union that is approved as a branch by a federal 
or state supervisory agency, but excludes free-standing electronic 
terminals such as automated teller machines;
    (2) Any office of a mortgage lending institution (other than a bank, 
savings association, or credit union) that takes applications from the 
public for home purchase or home improvement loans. A mortgage lending 
institution is also deemed to have a branch office in an MSA if, in the 
preceding calendar year, it received applications for, originated, or 
purchased five or more home purchase or home improvement loans on 
property located in that MSA.
    (d) Dwelling means a residential structure (whether or not it is 
attached to real property) located in a state of the United States of 
America, the District of Columbia, or the Commonwealth of Puerto Rico. 
The term includes an individual condominium unit, cooperative unit, or 
mobile or manufactured home.
    (e) Financial institution means:
    (1) A bank, savings association, or credit union that originated in 
the preceding calendar year a home purchase loan (other than temporary 
financing such as a construction loan), including a refinancing of a 
home purchase loan, secured by a first lien on a one- to four-family 
dwelling if:
    (i) The institution is federally insured or regulated; or
    (ii) The loan is insured, guaranteed, or supplemented by any federal 
agency; or
    (iii) The institution intended to sell the loan to the Federal 
National Mortgage Association or the Federal Home Loan Mortgage 
Corporation;
    (2) A for-profit mortgage lending institution (other than a bank, 
savings association, or credit union) whose home purchase loan 
originations (including refinancings of home purchase loans) equaled or 
exceeded ten percent of its loan origination volume, measured in 
dollars, in the preceding calendar year.

[[Page 72]]

    (f) Home improvement loan means any loan that:
    (1) Is for the purpose, in whole or in part, of repairing, 
rehabilitating, remodeling, or improving a dwelling or the real property 
on which it is located; and
    (2) Is classified by the financial institution as a home improvement 
loan.
    (g) Home purchase loan means any loan secured by and made for the 
purpose of purchasing a dwelling.
    (h) Metropolitan statistical area or MSA means a metropolitan 
statistical area or a primary metropolitan statistical area, as defined 
by the U.S. Office of Management and Budget.
[54 FR 51362, Dec. 15, 1989, as amended at 56 FR 59857, Nov. 26, 1991; 
Reg. C, 59 FR 63704, Dec. 9, 1994]



Sec. 203.3  Exempt institutions.

    (a) Exemption based on location, asset size, or number of home 
purchase loans. (1) A bank, savings association, or credit union is 
exempt from the requirements of this part for a given calendar year if 
on the preceding December 31:
    (i) The institution had neither a home office nor a branch office in 
an MSA; or
    (ii) The institution's total assets were at or below the asset 
threshold established by the Board. For data collection in 1997, the 
asset threshold is $28 million as of December 31, 1996. For subsequent 
years, the Board will adjust the threshold based on the year-to-year 
change in the average of the Consumer Price Index for Urban Wage Earners 
and Clerical Workers, not seasonally adjusted, for each twelve-month 
period ending in November, with rounding to the nearest million. The 
Board will publish any adjustment in the asset figure in December.
    (2) A for-profit mortgage lending institution (other than a bank, 
savings association, or credit union) is exempt from the requirements of 
this part for a given calendar year if:
    (i) The institution had neither a home office nor a branch office in 
an MSA on the preceding December 31; or
    (ii) The institution's total assets combined with those of any 
parent corporation were $10 million or less on the preceding December 
31, and the institution originated fewer than 100 home purchase loans in 
the preceding calendar year.
    (b) Exemption based on state law. (1) A state-chartered or state-
licensed financial institution is exempt from the requirements of this 
regulation if the Board determines that the institution is subject to a 
state disclosure law that contains requirements substantially similar to 
those imposed by this regulation and contains adequate provisions for 
enforcement.
    (2) Any state, state-chartered or state-licensed financial 
institution, or association of such institutions may apply to the Board 
for an exemption under this paragraph.
    (3) An institution that is exempt under this paragraph shall submit 
the data required by the state disclosure law to its state supervisory 
agency for purposes of aggregation.
    (c) Loss of exemption. (1) An institution losing an exemption that 
was based on the criteria set forth in paragraph (a) of this section 
shall comply with this part beginning with the calendar year following 
the year in which it lost its exemption.
    (2) An institution losing an exemption that was based on state law 
under paragraph (b) of this section shall comply with this regulation 
beginning with the calendar year following the year for which it last 
reported loan data under the state disclosure law.
[54 FR 51362, Dec. 15, 1989, as amended at 57 FR 56965, Dec. 2, 1992; 62 
FR 28623, May 27, 1997]



Sec. 203.4  Compilation of loan data.

    (a) Data format and itemization. A financial institution shall 
collect data regarding applications for, and originations and purchases 
of, home purchase and home improvement loans (including refinancings of 
both) for each calendar year. These transactions shall be recorded, 
within thirty calendar days after the end of each calendar quarter in 
which final action is taken (such as origination or purchase of a loan, 
or denial or withdrawal of an application), on a register in the format 
prescribed in Appendix A of this part and shall include the following 
items:

[[Page 73]]

    (1) A number for the loan or loan application, and the date the 
application was received.

    (2) The type and purpose of the loan.
    (3) The owner-occupancy status of the property to which the loan 
relates.

    (4) The amount of the loan or application.

    (5) The type of action taken, and the date.

    (6) The location of the property to which the loan relates, by MSA, 
state, county, and census tract, if the institution has a home or a 
branch office in that MSA.

    (7) The race or national origin and sex of the applicant or 
borrower, and the gross annual income relied upon in processing the 
application.

    (8) The type of entity purchasing a loan that the institution 
originates or purchases and then sells within the same calendar year.

    (b) Collection of data on race or national origin, sex, and income. 
(1) A financial institution shall collect data about the race or 
national origin and sex of the applicant or borrower as prescribed in 
appendix B. If the applicant or borrower chooses not to provide the 
information, the lender shall note the data on the basis of visual 
observation or surname, to the extent possible.

    (2) Race or national origin, sex, and income data may but need not 
be collected for:

    (i) Loans purchased by the financial institution; or

    (ii) Applications received or loans originated by a bank, savings 
association, or credit union with assets on the preceding December 31 of 
$30 million or less.

    (c) Optional data. A financial institution may report the reasons it 
denied a loan application.
    (d) Excluded data. A financial institution shall not report:
    (1) Loans originated or purchased by the financial institution 
acting in a fiduciary capacity (such as trustee);
    (2) Loans on unimproved land;
    (3) Temporary financing (such as bridge or construction loans);
    (4) The purchase of an interest in a pool of loans (such as 
mortgage-participation certificates); or
    (5) The purchase solely of the right to service loans.
    (e) Data reporting under CRA for banks and savings associations with 
total assets of $250 million or more and banks and savings associations 
that are subsidiaries of a holding company whose total banking and 
thrift assets are $1 billion or more. As required by agency regulations 
that implement the Community Reinvestment Act, banks and savings 
associations that had total assets of $250 million or more (or are 
subsidiaries of a holding company with total banking and thrift assets 
of $1 billion or more) as of December 31 for each of the immediately 
preceding two years, shall also collect the location of property located 
outside the MSAs in which the institution has a home or branch office, 
or outside any MSAs.
[54 FR 51362, Dec. 15, 1989; 55 FR 695, Jan. 8, 1990, as amended at 56 
FR 59857, Nov. 26, 1991; 56 FR 66343, Dec. 23, 1991; Reg. C, 59 FR 
63704, Dec. 9, 1994; 60 FR 22225, May 4, 1995]



Sec. 203.5  Disclosure and reporting.

    (a) Reporting to agency. By March 1 following the calendar year for 
which the loan data are compiled, a financial institution shall send its 
complete loan application register to the agency office specified in 
Appendix A of this part, and shall retain a copy for its records for a 
period of not less than three years.
    (b) Public disclosure of statement. (1) A financial institution 
shall make its mortgage loan disclosure statement (to be prepared by the 
Federal Financial Institutions Examination Council) available to the 
public at its home office no later than three business days after 
receiving it from the Examination Council.
    (2) In addition, a financial institution shall either:
    (i) Make its disclosure statement available to the public (within 
ten business days of receiving it) in at least one branch office in each 
additional MSA where the institution has offices (the disclosure 
statement need only contain data relating to the MSA where the branch is 
located); or
    (ii) Post the address for sending written requests for the 
disclosure statement in the lobby of each branch office in an MSA where 
the institution has

[[Page 74]]

offices, and mail or deliver a copy of the disclosure statement, within 
fifteen calendar days of receiving a written request (the disclosure 
statement need only contain data relating to the MSA for which the 
request is made). Including the address in the general notice required 
under paragraph (e) of this section satisfies this requirement.
    (c) Public disclosure of loan application register. A financial 
institution shall make its loan application register available to the 
public after modifying it in accordance with appendix A. An institution 
shall make its modified register available following the calendar year 
for which the data are compiled, by March 31 for a request received on 
or before March 1, and within 30 days for a request received after March 
1. The modified register need only contain data relating to the MSA for 
which the request is made.
    (d) Availability of data. A financial institution shall make its 
modified register available to the public for a period of three years 
and its disclosure statement available for a period of five years. An 
institution shall make the data available for inspection and copying 
during the hours the office is normally open to the public for business. 
It may impose a reasonable fee for any cost incurred in providing or 
reproducing the data.
    (e) Notice of availability. A financial institution shall post a 
general notice about the availability of its HMDA data in the lobby of 
its home office and of each branch office located in an MSA. It shall 
promptly upon request provide the location of the institution's offices 
where the statement is available for inspection and copying, or it may 
include the location in the notice.
[58 FR 13405, Mar. 11, 1993, as amended at Reg. C, 59 FR 63704, Dec. 9, 
1994; 62 FR 28623, May 27, 1997]



Sec. 203.6  Enforcement.

    (a) Administrative enforcement. A violation of the act or this 
regulation is subject to administrative sanctions as provided in section 
305 of the act, including the imposition of civil money penalties, where 
applicable. Compliance is enforced by the agencies listed in appendix A 
of this regulation.
    (b) Bona fide errors. An error in compiling or recording loan data 
is not a violation of the act or this regulation if it was unintentional 
and occurred despite the maintenance of procedures reasonably adapted to 
avoid such errors.
[54 FR 51362, Dec. 15, 1989, as amended at 56 FR 59857, Nov. 26, 1991]

  Appendix A to Part 203--Form and Instructions for Completion of HMDA 
                        Loan/Application Register

                     Paperwork Reduction Act Notice

    Public reporting burden for collection of this information is 
estimated to vary from 10 to 10,000 hours per response, with an average 
of 202 hours per response for state member banks and 160 hours per 
response for mortgage banking subsidiaries, including time to gather and 
maintain the data needed and to review instructions and complete the 
information collection. This report is required by law (12 U.S.C. 2801-
2810 and 12 CFR part 203). An agency may not conduct or sponsor, and an 
organization is not required to respond to, a collection of information 
unless it displays a currently valid OMB Control Number. The OMB Control 
number for this information collection is 7100-0247. Send comments 
regarding this burden estimate or any other aspect of this collection of 
information, including suggestions for reducing the burden, to 
Secretary, Board of Governors of the Federal Reserve System, Washington, 
D.C. 20551; and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, Washington, D.C. 20503.

                        I. Who Must File a Report

                       A. Depository Institutions

    1. Subject to the exception discussed below, banks, savings 
associations, and credit unions must complete a register listing data 
about loan applications received, loans originated, and loans purchased 
if on the preceding December 31 an institution:
    a. Had assets of more than the asset threshold for coverage as 
published by the Board each year in December, and
    b. Had a home or a branch office in a ``metropolitan statistical 
area'' or a ``primary metropolitan statistical area'' (both are referred 
to in these instructions by the term ``MSA'').
    2. For data collection in 1997, the asset threshold is $28 million 
in total assets as of December 31, 1996.
    3. Example. If on December 31 you had a home or branch office in an 
MSA and your assets exceeded the asset threshold, you must complete a 
register that lists the home-purchase and home-improvement loans

[[Page 75]]

that you originate or purchase (and also lists applications that did not 
result in an origination) beginning January 1.

                  B. Depository Institutions--Exception

    You need not complete a register--even if you meet the tests for 
asset size and location--if your institution is a bank, savings 
association, or credit union that made no first-lien home purchase loans 
(including refinancings) on one-to-four-family dwellings in the 
preceding calendar year. This exception does not apply in the case of 
nondepository institutions.

                      C. Other Lending Institutions

    Subject to the exception discussed below, for-profit mortgage 
lending institutions (other than banks, savings associations, and credit 
unions) must complete a register listing data about loan applications 
received, loans originated, and loans purchased if the institution had a 
home or branch office in an MSA on the preceding December 31, and
    1. Had assets of more than $10 million (based on the combined assets 
of the institution and any parent corporation) on the preceding December 
31, or
    2. Originated 100 or more home purchase loans (including 
refinancings of such loans) during the preceding calendar year, 
regardless of asset size.

                D. Other Lending Institutions--Exception

    You need not complete a register--even if you meet the tests for 
location and asset size or number of home purchase loans--if your 
institution is a for-profit mortgage lender (other than a bank, savings 
association, or credit union) and home purchase loans that you 
originated in the preceding calendar year (including refinancings) came 
to less than 10 percent of your total loan origination volume, measured 
in dollars.
    E. If you are the subsidiary of a bank or savings association you 
must complete a separate register for your institution. You will submit 
the register, directly or through your parent, to the agency that 
supervises your parent. (See paragraph VI.)
    F. Institutions that are specifically exempted by the Federal 
Reserve Board from complying with the federal Home Mortgage Disclosure 
Act because they are covered by a similar state law on mortgage loan 
disclosures must use the disclosure form required by their state law and 
submit the data to their state supervisory agency.

              II. Required Format and Reporting Procedures

    A. Institutions must submit data to their supervisory agencies in an 
automated, machine-readable form. The format must conform exactly to 
that of form FR HMDA-LAR, including the order of columns, column 
headings, etc. Contact your federal supervisory agency for information 
regarding procedures and technical specifications for automated data 
submission; in some cases, agencies also make software for automated 
data submission available to institutions. The data must be edited 
before submission, using the edits included in the agency-supplied 
software or equivalent edits in software available from vendors or 
developed in-house. (Institutions that report 25 or fewer entries on 
their HMDA-LAR may collect and report the data in paper form. An 
institution that submits its register in nonautomated form must send two 
copies that are typed or computer printed, and must use the format of 
form FR HMDA-LAR (but need not use the form itself). Each page must be 
numbered, and the total number of pages must be given (for example, 
``Page 1 of 3'').)
    B. The required data are to be entered in the register for each loan 
origination, each application acted on, and each loan purchased during 
the calendar year. Your institution should decide on the procedure it 
wants to follow--for example, whether to begin entering the required 
data when an application is received, or to wait until final action is 
taken (such as when a loan goes to closing or an application is denied). 
Keep in mind that an application is to be reported in the calendar year 
when final action is taken. Report loan originations in the year they go 
to closing; if an application has been approved but has not yet gone to 
closing at year-end, report it the following year.
    C. Your institution may collect the data on separate registers at 
different branches, or on separate registers for different loan types 
(such as for home purchase or home improvement loans, or for loans on 
multifamily dwellings). But make sure the application or loan numbers 
(discussed under paragraph V.A.1., below) are unique.
    D. Entries need not be grouped on your register by MSA, or 
chronologically, or by census tract numbers, or in any other particular 
order.
    E. Applications and loans must be recorded on your register within 
thirty calendar days after the end of the calendar quarter in which 
final action (such as origination or purchase of a loan, or denial or 
withdrawal of an application) is taken. The type of purchaser for loans 
sold need not be included in these quarterly updates.

         III. Submission of HMDA-LAR and Public Release of Data

    A. You must submit the data for your institution to the office 
specified by your supervisory agency no later than March 1 following the 
calendar year for which the data are compiled. A list of the agencies 
appears at the end of these instructions.

[[Page 76]]

    B. You must submit all required data to your supervisory agency in 
one complete package, with the prescribed transmittal sheet. An officer 
of your institution must certify to the accuracy of the data. Any 
additional data submissions that become necessary (for example, because 
you discover that data were omitted from the initial submission, or 
because revisions are called for) also must be accompanied by a 
transmittal sheet.
    C. The transmittal sheet must state the total number of line entries 
contained in the accompanying data submission. If the data submission 
involves revisions or deletions of previously submitted data, state the 
total of all line entries contained in that submission, including both 
those representing revisions or deletions of previously submitted 
entries, and those that are being resubmitted unchanged or are being 
submitted for the first time. If you are a depository institution, you 
also are asked to provide a list of the MSAs where you have a home or 
branch office.
    D. Availability of disclosure statement. 1. The Federal Financial 
Institutions Examination Council (FFIEC) will prepare a disclosure 
statement from the data you submit. Your disclosure statement will be 
returned to the name and address indicated on the transmittal sheet. 
Within three business days of receiving the disclosure statement, you 
must make a copy available at your home office for inspection by the 
public. For these purposes a business day is any calendar day other than 
a Saturday, Sunday, or legal public holiday. You also must either:
    a. Make your disclosure statement available to the public, within 
ten business days of receiving it from the FFIEC, in at least one branch 
office in each additional MSA where you have offices (the disclosure 
statement need only contain data relating to properties in the MSA where 
the branch office is located); or
    b. Post in the lobby of each branch office in an MSA the address 
where a written request for the disclosure statement may be sent, and 
mail or deliver a copy of the statement to any person requesting it, 
within fifteen calendar days of receiving a written request. The 
disclosure statement need only contain data relating to the MSA for 
which the request is made.
    2. You may make the disclosure statement available in paper form or, 
if the person requesting the data agrees, in automated form (such as by 
PC diskette or computer tape).
    E. Availability of modified loan application register.
    1. To protect the privacy of applicants and borrowers, an 
institution must modify its loan application register by removing the 
following information before releasing it to the public: the application 
or loan number, date application received, and date of action taken.
    2. You may make the modified register available in paper or 
automated form (such as by PC diskette or computer tape). Although you 
are not required to make the modified loan application register 
available in census-tract order, you are strongly encouraged to do so in 
order to enhance its utility to users.
    3. You must make your modified register available following the 
calendar year for which the data are complied, by March 31 for a request 
received on or before March 1, and within 30 days for a request received 
after March 1. You are not required to prepare a modified loan 
application register in advance of receiving a request from the public 
for this information, but must be able to respond to a request within 30 
days. A modified register need only reflect data relating to the MSA for 
which the request is made.
    F. Posters.
    1.Suggested language. Some of the agencies provide HMDA posters that 
you can use to inform the public of the availability of your HMDA data, 
or you may create your own posters. If you print your own, the following 
language is suggested but is not required:

                   Home Mortgage Disclosure Act Notice

    The HMDA data about our residential mortgage lending are available 
for review. The data show geographic distribution of loans and 
applications; race, gender, and income of applicants and borrowers; and 
information about loan approvals and denials. Inquire at this office 
regarding the locations where HMDA data may be inspected.
    2. Additional language for institutions making the disclosure 
statement available upon request. For an institution that makes its 
disclosure statement available upon request instead of at branch offices 
must post a notice informing the public of the address to which a 
request should be sent. For example, the institution could include the 
following sentence in its general notice: ``To receive a copy of these 
data send a written request to [address].''

    IV. Types of Loans and Applications Covered and Excluded by HMDA

            A. Types of Loans and Applications to be Reported

    1. Report the data on home purchase and home improvement loans that 
you originated (that is, loans that were closed in your name) and loans 
that you purchased during the calendar year covered by the report. 
Report these data even if the loans were subsequently sold by your 
institution. Include refinancings of home purchase and home improvement 
loans.
    2. Report the data for applications for home purchase and home 
improvement loans

[[Page 77]]

that did not result in originations--for example, applications that your 
institution denied or that the applicant withdrew during the calendar 
year covered by the report.
    3. In the case of brokered loan applications or applications 
forwarded to you through a correspondent, report as originations loans 
that you approved and subsequently acquired according to a pre-closing 
arrangement (whether or not they closed in your institution's name). 
Additionally, report the data for all applications that did not result 
in originations--for example, applications that your institution denied 
or that the applicant withdrew during the calendar year covered by the 
report (whether or not they would have closed in your institution's 
name). For all of these loans and applications, report the race or 
national origin, sex, and income information, unless your institution is 
a bank, savings association, or credit union with assets of $30 million 
or less on the preceding December 31.
    4. Originations are to be reported only once. If you are the loan 
broker or correspondent, do not report as originations loans that you 
forwarded to another lender for approval prior to closing, and that were 
approved and subsequently acquired by that lender (whether or not they 
closed in your name).
    5. Report applications that were received in the previous calendar 
year but were acted upon during the calendar year covered by the current 
register.

                         B. Data To Be Excluded

    Do not report loans or applications for loans of the following 
types:
    1. Loans that, although secured by real estate, are made for 
purposes other than home purchase, home improvement, or refinancing (for 
example, do not report a loan secured by residential real property for 
purposes of financing college tuition, a vacation, or goods for business 
inventory).
    2. Loans made in a fiduciary capacity (for example, by your trust 
department).
    3. Loans on unimproved land.
    4. Construction or bridge loans and other temporary financing.
    5. The purchase of an interest in a pool of loans (such as mortgage-
participation certificates).
    6. The purchase solely of the right to service loans.

       V. Instructions for Completion of Loan/Application Register

                   A. Application or Loan Information

                      1. Application or Loan Number

    Enter an identifying number that can be used later to retrieve the 
loan or application file. It can be any number of your choosing (not 
exceeding 25 characters). You may use letters, numerals, or a 
combination of both.
    Make sure that all numbers are unique within your institution. If 
your register contains data for branch offices, for example, you could 
use a letter or a numerical code to identify the loans or applications 
of different branches, or could assign a certain series of numbers to 
particular branches to avoid duplicate numbers. You are strongly 
encouraged not to use the applicant's or borrower's name or social 
security number, for privacy reasons.

                      2. Date Application Received

    Enter the date the loan application was received by your institution 
by month, day, and year, using numerals in the form MM/DD/YY (for 
example, 01/15/92). If your institution normally records the date shown 
on the application form, you may use that date instead. Enter ``NA'' for 
loans purchased by your institution.

                                 3. Type

    Indicate the type of loan or application by entering the applicable 
code from the following:

1--Conventional (any loan other than FHA, VA or FmHA loans)
2--FHA-insured (Federal Housing Administration)
3--VA-guaranteed (Veterans Administration)
4--FmHA-insured (Farmers Home Administration)

                               4. Purpose

    Indicate the purpose of the loan or application by entering the 
applicable code from the following:

1--Home purchase (one-to-four family)
2--Home improvement (one-to-four family)
3--Refinancing (home purchase or home improvement, one-to-four family)
4--Multifamily dwelling (home purchase, home improvement, and 
refinancings)

                     5. Explanation of Purpose Codes

    Code 1: Home purchase.
    a. This code applies to loans and applications made for the purpose 
of purchasing a residential dwelling for one to four families, if the 
loan is to be secured by the dwelling being purchased or by another 
dwelling.
    b. At your option, you may use code 1 for loans that are made for 
home improvement purposes but are secured by a first lien, if you 
normally classify such first-lien loans as home purchase loans.
    Code 2: Home improvement.
    a. Code 2 applies to loans and applications for loans if (i) a 
portion of the proceeds is to be used for repairing, rehabilitating, 
remodeling, or improving a one- to four-family residential dwelling, or 
the real property upon

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which it is located, and (ii) the loan is classified as a home 
improvement loan.
    b. Report both secured and unsecured loans.
    c. At your option, you may report data about home-equity lines of 
credit--even if the credit line is not classified as a home improvement 
loan. If you choose to do so, you may report a home-equity line of 
credit as a home improvement loan if some portion of the proceeds will 
be used for home improvement. (See Paragraph 8. ``Loan amount.'') If you 
report originations of home-equity lines of credit, you must also report 
applications for such loans that did not result in originations.
    Code 3: Refinancings.
    a. Use this code for refinancings (and applications for 
refinancings) of loans secured by one- to four-family residential 
dwellings. A refinancing involves the satisfaction of an existing 
obligation that is replaced by a new obligation undertaken by the same 
borrower. But do not report a refinancing if, under the loan agreement, 
you are unconditionally obligated to refinance the obligation, or you 
are obligated to refinance the obligation subject to conditions within 
the borrower's control.
    b. Use this code whether or not you were the original creditor on 
the loan being refinanced, and whether or not the refinancing involves 
an increase in the outstanding principal.
    c. You may report all refinancings of loans secured by one- to four-
family residential dwellings, regardless of the purpose of or amount 
outstanding on the original loan, and regardless of the amount of new 
money (if any) that is for home purchase or home improvement purposes.
    Code 4: Multifamily dwelling.
    a. Use this code for loans and loan applications on dwellings for 
five or more families, including home purchase loans, refinancings, and 
loans for repairing, rehabilitation, and remodeling purposes.
    b. Do not use this code for loans on individual condominium or 
cooperative units; use codes 1, 2, or 3 for such loans, as applicable.

                           6. Owner Occupancy

    Indicate whether the property to which the loan or loan application 
relates is to be owner-occupied as a principal dwelling by entering the 
applicable code from the following:

1--Owner-occupied as a principal dwelling
2--Not owner-occupied
3--Not applicable

                         7. Explanation of Codes

    a. Use code 2 for second homes or vacation homes, as well as rental 
properties.
    b. Use code 2 only for nonoccupant loans, or applications for 
nonoccupant loans, related to one-to-four family dwellings (including 
individual condominium or cooperative units).
    c. Use code 3 if the property to which the loan relates is a 
multifamily dwelling; is not located in an MSA; or is located in an MSA 
in which your institution has neither a home nor a branch office.
    d. For purchased loans, you may assume that the property will be 
owner-occupied as a principal dwelling (code 1) unless the loan 
documents or application contain information to the contrary.

                             8. Loan Amount

    Enter the amount of the loan or application. Do not report loans 
below $500. Show the amount in thousands rounding to the nearest 
thousand ($500 should be rounded up to the next $1,000). For example, a 
loan for $167,300 should be entered as 167 and one for $15,500 as 16.
    a. For home purchase loans that you originate, enter the principal 
amount of the loan as the loan amount. For home purchase loans that you 
purchase, enter the unpaid principal balance of the loan at the time of 
purchase as the loan amount.
    b. For home improvement loans (both originations and purchases), you 
may include unpaid finance charges in the loan amount if that is how you 
record such loans on your books. For a multiple purpose loan classified 
by you as a home improvement loan because it involves a home improvement 
purpose, enter the full amount of the loan, not just the amount 
specified for home improvement.
    c. For home-equity lines of credit (if you have chosen to report 
them), enter as the loan amount only that portion of the line that is 
for home improvement purposes. Report the loan amount for applications 
that did not result in originations in the same manner. Report only in 
the year the line is established.
    d. For refinancings of dwelling-secured loans, indicate the total 
amount of the refinancing, including the amount outstanding on the 
original loan and the amount of new money (if any).
    e. For a loan application that was denied or withdrawn, enter the 
amount applied for.
    f. If you make a counteroffer for an amount different from the 
amount initially applied for, and the counteroffer is accepted by the 
applicant, report it as an origination for the amount of the loan 
actually granted. If the applicant turns down the counteroffer or fails 
to respond, report it as a denial for the amount initially requested.

                             B. Action Taken

    1. Type of action. Indicate the type of action taken on the 
application or loan by

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using one of the following codes. Do not report any loan application 
still pending at the end of the calendar year; you will report that 
application on your register for the year in which final action is 
taken.

1--Loan originated
2--Application approved but not accepted
3--Application denied
4--Application withdrawn
5--File closed for incompleteness
6--Loan purchased by your institution

                         2. Explanation of Codes

    a. Use code 1 for a loan that is originated, including one resulting 
from a counteroffer (your offer to the applicant to make the loan on 
different terms or in a different amount than initially applied for) 
that the applicant accepts.
    b. Use code 2 when an application is approved but the applicant (or 
a loan broker or correspondent) fails to respond to your notification of 
approval or your commitment letter within the specified time.
    c. Use code 3 when an application is denied. This includes the 
situation when an applicant turns down or fails to respond to your 
counteroffer. Do not report as a withdrawn application or as an 
application that was approved but not accepted.
    d. Use code 4 only when an application is expressly withdrawn by the 
applicant before a credit decision was made.
    e. Use code 5 if you sent a written notice of incompleteness under 
Sec. 202.9(c)(2) of Regulation B (Equal Credit Opportunity) and the 
applicant failed to respond to your request for additional information 
within the period of time specified in your notice.

                            3. Date of Action

    Enter the date by month, day, and year, using numerals in the form 
MM/DD/YY (for example, 02/22/92).
    a. For loans originated, enter the settlement or closing date. For 
loans purchased, enter the date of purchase by your institution.
    b. For applications denied, applications approved but not accepted 
by the applicant, and files closed for incompleteness, enter the date 
that the action was taken by your institution or the date the notice was 
sent to the applicant.
    c. For applications withdrawn, enter the date you received the 
applicant's express withdrawal; or you may enter the date shown on the 
notification from the applicant, in the case of a written withdrawal.

                          C. Property Location

    In these columns enter the applicable codes for the MSA, state, 
county, and census tract for the property to which a loan relates. For 
home purchase loans secured by one dwelling, but made for the purpose of 
purchasing another dwelling, report the property location for the 
property in which the security interest is to be taken. If the home 
purchase loan is secured by more than one property, report the location 
data for the property being purchased. (See paragraphs 5., 6., and 7. of 
paragraph V.C. of this appendix for treatment of loans on property 
outside the MSAs in which you have offices.)

                                 1. MSA

    For each loan or loan application, indicate the location of the 
property by the MSA number. Enter only the MSA number, not the MSA name. 
MSA boundaries are defined by the U.S. Office of Management and Budget; 
use the boundaries that were in effect on January 1 of the calendar year 
for which you are reporting. A listing of MSAs is available from your 
regional supervisory agency or the FFIEC. (In these instructions, the 
term MSA refers to both metropolitan statistical area and primary 
metropolitan statistical area.)

                           2. State and County

    You must use the Federal Information Processing Standard (FIPS) two-
digit numerical code for the state and the three-digit numerical code 
for the county. These codes are available from your regional supervisory 
agency or the FFIEC. Do not use the letter abbreviations used by the 
U.S. Postal Service.

                             3. Census Tract

    Indicate the census tract where the property is located.
    a. Enter the code ``NA'' if the property is located in an area not 
divided into census tracts on the U.S. Census Bureau's census-tract 
outline maps (see paragraph 4. below).
    b. If the property is located in a county with a population of 
30,000 or less in the 1990 census (as determined by the Census Bureau's 
1990 CPH-2 population series), enter ``NA'' (even if the population has 
increased above 30,000 since 1990), or you may enter the census tract 
number.

                         4. Census Tract Number

    For the census tract number, consult the U.S. Census Bureau's Census 
Tract/Street Index for 1990, and for addresses not listed in the index, 
consult the Census Bureau's census tract outline maps. You must use the 
maps from the Census Bureau's 1990 CPH-3 series, or equivalent 1990 
census data from the Census Bureau (such as the Census TIGER/Line File) 
or from a private publisher.

                             5. Outside-MSA

    For loans on property located outside the MSAs in which you have a 
home or branch office (or outside any MSA), you have two options. Under 
option 1, you may enter the

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MSA, state, and county codes and the census tract number. You may enter 
``NA'' in the MSA or census tract column if no code or number exists for 
the property. (Codes exist for all states and counties.) If you choose 
option 1, the codes and tract number must accurately identify the 
location for the property in question. Under option 2, you may enter 
``NA'' in all four columns, whether or not the codes or number exist for 
the property.

                        6. Nondepository Lenders

    If you are a for-profit mortgage lending institution (other than a 
bank, savings association, or credit union), and in the preceding 
calendar year you received applications for, or originated or purchased, 
loans for home purchase or home improvement adding up to a total of five 
or more for a given MSA, you are deemed to have a branch office in that 
MSA, whether or not you have a physical office there. As a result, you 
will have to enter the MSA, state, county, and census tract numbers for 
any transactions in that MSA. Because you must keep accurate records 
about lending within MSAs in the current calendar year in order to 
report data accurately the following year, to comply with this rule you 
may find it easier to enter the geographic information routinely for any 
property located within any MSA.

  7. Data Reporting Under CRA for Banks and Savings Associations With 
Total Assets of $250 Million or More and Banks and Savings Associations 
   That Are Subsidiaries of a Holding Company Whose Total Banking and 
                  Thrift Assets Are $1 Billion or More

    If you are a bank or savings association with total assets of $250 
million or more as of December 31 for each of the immediately preceding 
two years, you must also enter the location of property located outside 
the MSAs in which you have a home or branch office, or outside any MSA. 
You must also enter this information if you are a bank or savings 
association that is a subsidiary of a holding company with total banking 
and thrift assets of $1 billion or more as of December 31 for each of 
the immediately preceding two years.

   D. Applicant Information--Race or National Origin, Sex, and Income

    Appendix B of Regulation C contains instructions for the collection 
of data on race or national origin and sex, and also contains a sample 
form for data collection. The form is substantially similar to the form 
prescribed by Sec. 202.13 of Regulation B (Equal Credit Opportunity) and 
contained in appendix B to that regulation. You may use either form.

                            1. Applicability

    You must report this applicant information for loans that you 
originate as well as for applications that do not result in an 
origination.
    a. You need not collect or report this information for loans 
purchased. If you choose not to, enter the codes specified in paragraphs 
3., 4., and 5. below for ``not applicable.''
    b. If your institution is a bank, savings association, or credit 
union that had assets of $30 million or less on the preceding December 
31, you may--but need not--collect and report these data. If you choose 
not to, enter the codes specified in paragraphs 3., 4., and 5. below for 
``not applicable.''
    c. If the borrower or applicant is not a natural person (a 
corporation or partnership, for example), use the codes specified in 
paragraphs 3., 4., and 5. below for ``not applicable.''

                   2. Mail and Telephone Applications

    Any loan applications mailed to applicants must contain a collection 
form similar to that shown in appendix B, and you must record on your 
register the data on race or national origin and sex if the applicant 
provides it. If the applicant chooses not to provide the data, enter the 
code for ``information not provided by applicant in mail or telephone 
application'' specified in paragraphs 3. and 4. below. If an application 
is taken entirely by telephone, you need not request this information. 
(See appendix B for complete information on the collection of this data 
in mail or telephone applications.)

           3. Race or National Origin of Borrower or Applicant

    Use the following codes to indicate the race or national origin of 
the applicant or borrower under column ``A'' and of any co-applicant or 
co-borrower under column ``CA.'' If there is more than one co-applicant, 
provide this information only for the first co-applicant listed on the 
application form. If there are no co-applicants or co-borrowers, enter 
code 8 for ``not applicable'' in the co-applicant column.

1--American Indian or Alaskan Native
2--Asian or Pacific Islander
3--Black
4--Hispanic
5--White
6--Other
7--Information not provided by applicant in mail or telephone 
application
8--Not applicable

                     4. Sex of Borrower or Applicant

    Use the following codes to indicate the sex of the applicant or 
borrower under column ``A'' and of any co-applicant or co-borrower

[[Page 81]]

under column ``CA.'' If there is more than one co-applicant, provide 
this information only for the first co-applicant listed on the 
application form. If there are no co-applicants or co-borrowers, enter 
code 4 for ``not applicable.''

1--Male
2--Female
3--Information not provided by applicant in mail or telephone 
application
4--Not applicable

                                5. Income

    Enter the gross annual income that your institution relied upon in 
making the credit decision.
    a. Round all dollar amounts to the nearest thousand (round $500 up 
to the next $1,000), and show in terms of thousands. For example, 
$35,500 should be reported as 36.
    b. For loans on multifamily dwellings, enter ``NA.''
    c. If no income information is asked for or relied on in the credit 
decision, enter ``NA.''

                          E. Type of Purchaser

    1. Enter the applicable code to indicate whether a loan that your 
institution originated or purchased was then sold to a secondary market 
entity within the same calendar year:

0--Loan was not originated or was not sold in calendar year covered by 
register
1--FNMA (Federal National Mortgage Association)
2--GNMA (Government National Mortgage Association)
3--FHLMC (Federal Home Loan Mortgage Corporation)
4--FmHA (Farmers Home Administration)
5--Commercial bank
6--Savings bank or savings association
7--Life insurance company
8--Affiliate institution
9--Other type of purchaser

    2. Explanation of codes. a. Enter the code 0 for applications that 
were denied, withdrawn, or approved but not accepted by the applicant; 
and for files closed for incompleteness.
    b. If you originated or purchased a loan and did not sell it during 
that same calendar year, enter the code 0. If you sell the loan in a 
succeeding year, you need not report the sale.
    c. If you conditionally assign a loan to GNMA in connection with a 
mortgage-backed security transaction, use code 2.
    d. Loans ``swapped'' for mortgage-backed securities are to be 
treated as sales; enter the type of entity receiving the loans that are 
swapped as the purchaser.
    e. Use code 8 for loans sold to an institution affiliated with you, 
such as your subsidiary or a subsidiary of your parent corporation.

                          F. Reasons for Denial

    1. You are not required to enter the reasons for the denial of an 
application. But if you choose to do so, you may indicate up to three 
reasons by using the following codes:

1--Debt-to-income ratio
2--Employment history
3--Credit history
4--Collateral
5--Insufficient cash (downpayment, closing costs)
6--Unverifiable information
7--Credit application incomplete
8--Mortgage insurance denied
9--Other

    2. Leave this column blank if the ``action taken'' on the 
application is not a denial. For example, do not complete this column if 
the application was withdrawn or the file was closed for incompleteness.
    3. If your institution uses the model form for adverse action 
contained in the appendix to Regulation B (Form C-1 in appendix C, 
Sample Notification Form, which offers some 20 reasons for denial), the 
following list shows which codes to enter.
    a. Code 1 corresponds to: Income insufficient for amount of credit 
requested, and Excessive obligations in relation to income.
    b. Code 2 corresponds to: Temporary or irregular employment, and 
Length of employment.
    c. Code 3 corresponds to: Insufficient number of credit references 
provided; Unacceptable type of credit references provided; No credit 
file; Limited credit experience; Poor credit performance with us; 
Delinquent past or present credit obligations with others; Garnishment, 
attachment, foreclosure, repossession, collection action, or judgment; 
and Bankruptcy.
    d. Code 4 corresponds to: Value or type of collateral not 
sufficient.
    e. Code 6 corresponds to: Unable to verify credit references, Unable 
to verify employment, Unable to verify income, and Unable to verify 
residence.
    f. Code 7 corresponds to: Credit application incomplete.
    g. Code 9 corresponds to: Length of residence, Temporary residence, 
and Other reasons specified on notice.

                    VI. Federal Supervisory Agencies

    Send your loan/application register and direct any questions to the 
office of your federal supervisory agency as specified below. If you are 
the nondepository subsidiary of a bank, savings association, or credit 
union, send the register to the supervisory agency for your parent 
institution. 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).

[[Page 82]]

   A. National Banks and Their Subsidiaries 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.

B. State Member Banks of the Federal Reserve System, Their Subsidiaries, 
Subsidiaries of Bank Holding Companies, 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 state member 
bank is located; for institutions other than state member banks, the 
Federal Reserve Bank specified by the Board of Governors.

C. Nonmember Insured Banks (except for federal savings banks) and Their 
        Subsidiaries and Insured State Branches of Foreign Banks.

    Regional Director of the Federal Deposit Insurance Corporation for 
the region in which the institution is located.

D. Savings Institutions Insured Under the Savings Association Insurance 
 Fund of the FDIC, 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), Their 
 Subsidiaries, and Subsidiaries of Savings Institution Holding Companies

    Regional or other office specified by the Office of Thrift 
Supervision.

                            E. Credit Unions

    National Credit Union Administration, Office of Examination and 
Insurance, 1776 G Street, NW., Washington, DC 20456.

                    F. Other Depository Institutions

    Regional Director of the Federal Deposit Insurance Corporation for 
the region in which the institution is located.

                 G. Other Mortgage Lending Institutions

    Assistant Secretary for Housing, HMDA Reporting--Room 9233, U.S. 
Department of Housing and Urban Development, 451 7th Street, SW., 
Washington, DC 20410.


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[GRAPHIC] [TIFF OMITTED] TR19JN97.001




[[Page 84]]

[GRAPHIC] [TIFF OMITTED] TC24SE91.017



[[Page 85]]

[GRAPHIC] [TIFF OMITTED] TC24SE91.018


[Reg. C, 56 FR 59857, Nov. 26, 1991, as amended at 57 FR 20400, May 13, 
1992; 57 FR 56965, 56967, Dec. 2, 1992; 58 FR 13405, Mar. 11, 1993; 59 
FR 63704, Dec. 9, 1994; 60 FR 22225, May 4, 1995; 62 FR 28623, 28624, 
May 27, 1997; 62 FR 33340, June 19, 1997]

[[Page 86]]

  Appendix B to Part 203--Form and instructions for data collection on 
                     race or national origin and sex

  I. Instructions on collection of data on race or national origin and 
                                  sex.

                               A. Format.

    You may list questions regarding the race or national origin and sex 
of the applicant on your loan application form, or on a separate form 
that refers to the application. (See the sample form below for 
recommended language.)

                             B. Procedures.

    1. You must ask for this information, but cannot require the 
applicant to provide it.
    2. If the applicant chooses not to provide the information for an 
application taken in person, note this fact on the form and note the 
data, to the extent possible, on the basis of visual observation or 
surname.
    3. Inform the applicant that the Federal government is requesting 
this information in order to monitor compliance with Federal statutes 
that prohibit lenders from discriminating against applicants on these 
bases. Inform the applicant that if the information is not provided 
where the application is taken in person, you are required to note the 
data on the basis of visual observation or surname.
    4. If an application is made entirely by telephone, you need not 
request this information. And you need not provide the data when you 
take an application by mail, if the applicant fails to answer these 
questions on the application form. You should indicate whether an 
application was received by mail or telephone, if it is not otherwise 
evident on the face of the application.
    5. The ``other'' block is available only to the applicant who 
chooses to indicate some other appropriate category for race or national 
origin. If completing the form based on visual observation, do not use 
this category; use one of the other five categories.
[GRAPHIC] [TIFF OMITTED] TC24SE91.019


[[Page 87]]



               Supplement I to Part 203--Staff Commentary

                              Introduction

    1. Status and citations. The commentary in this supplement is the 
vehicle by which the Division of Consumer and Community Affairs of the 
Federal Reserve Board issues formal staff interpretations of Regulation 
C (12 CFR part 203). The parenthetical citations given are references to 
Appendix A to Regulation C, Form and Instructions for Completion of the 
HMDA Loan/Application Register.

              Section 203.1--Authority, Purpose, and Scope

    1(c) Scope.
    1. General. The comments in this section address issues affecting 
coverage of institutions, exemptions from coverage, and data collection 
requirements. (Appendix A of this part, I., IV., and V.)
    2. Meaning of refinancing. A refinancing of a loan is the 
satisfaction and replacement of an existing obligation by a new 
obligation by the same borrower. The term ``refinancing'' refers to the 
new obligation. If the existing obligation is not satisfied and 
replaced, but is only renewed, modified, extended, or consolidated (as 
in certain modification, extension, and consolidation agreements), the 
transaction is not a refinancing for purposes of HMDA. (Appendix A of 
this part, Paragraph V.A.5. Code 3.)
    3. Refinancing--coverage. The regulation bases coverage, in part, on 
whether an institution originates home purchase loans. For determining 
whether an institution is subject to Regulation C or is exempt from 
coverage, an origination of a home-purchase loan includes the 
refinancing of a home-purchase loan. An institution may always determine 
the actual purpose of the existing obligation (for example, by reference 
to available documents). (Appendix A of this part, Paragraphs I.B., 
I.C., and I.D.) Alternatively, an institution may:
    i. Rely on the statement of the applicant that the existing 
obligation was (or was not) a home-purchase loan; or
    ii. Assume that the new obligation is not a refinancing of a home-
purchase loan if either the existing obligation or the new obligation is 
not secured by a first lien on the dwelling.
    4. Refinancing--data collection. The regulation requires collection 
and reporting of data on refinancings of home-purchase and home-
improvement loans. An institution may always determine the actual 
purpose of the existing obligation (for example, by reference to 
available documents). (Appendix A of this part, Paragraph V.A.5. Code 
3.) Alternatively, an institution may:
    i. Rely on the statement of the applicant that the existing 
obligation was (or was not) a home-purchase or home-improvement loan; or
    ii. Assume that the new obligation is a refinancing of a home-
purchase or home-improvement loan only if the existing obligation was 
secured by a lien on a dwelling; or
    iii. Assume that the new obligation is a refinancing of a home-
purchase or home-improvement loan only if the new obligation will be 
secured by a lien on a dwelling.
    5. The broker rule and the meaning of ``broker'' and ``investor.'' 
For the purposes of the guidance given in this commentary, an 
institution that takes and processes a loan application and arranges for 
another institution to acquire the loan at or after closing is acting as 
a ``broker,'' and an institution that acquires a loan from a broker at 
or after closing is acting as an ``investor.'' (The terms used in this 
commentary may have different meanings in certain parts of the mortgage 
lending industry and other terms may be used in place of these terms, 
for example in the Federal Housing Administration mortgage insurance 
programs.) Depending on the facts, a broker may or may not make a credit 
decision on an application (and thus it may or may not have reporting 
responsibilities). If the broker makes a credit decision, it reports 
that decision; if it does not make a credit decision, it does not 
report. If an investor reviews an application and makes a credit 
decision prior to closing, the investor reports that decision. If the 
investor does not review the application prior to closing, it reports 
only the loans that it purchases; it does not report the loans it does 
not purchase. Thus, an institution that makes a credit decision on an 
application prior to closing reports that decision regardless of whose 
name the loan closes in. (Appendix A of this part, Paragraphs IV.A. and 
V.B.)
    6. Illustrations of the broker rule. Assume that, prior to closing, 
four investors receive the same application from a broker; two deny it, 
one approves it, and one approves it and acquires the loan. In these 
circumstances, the first two report denials, the third reports the 
transaction as approved but not accepted, and the fourth reports an 
origination (whether the loan closes in the name of the broker or the 
investor). Alternatively, assume that the broker denies a loan before 
sending it to an investor; in this situation, the broker reports a 
denial. (Appendix A of this part, Paragraphs IV.A. and V.B.)
    7. Broker's use of investor's underwriting criteria. If a broker 
makes a credit decision based on underwriting criteria set by an 
investor, but without the investor's review prior to closing, the broker 
has made the credit decision. The broker reports as an origination a 
loan that it approves and closes, and reports as a denial an application

[[Page 88]]

that it turns down (either because the application does not meet the 
investor's underwriting guidelines or for some other reason). The 
investor reports as purchases only those loans it purchases. (Appendix A 
of this part, Paragraphs IV.A. and V.B.)
    8. Insurance and other criteria. If an institution evaluates an 
application based on the criteria or actions of a third party other than 
an investor (such as a government or private insurer or guarantor), the 
institution must report the action taken on the application (loan 
originated, approved but not accepted, or denied, for example). 
(Appendix A of this part, Paragraphs IV.A. and V.B.)
    9. Credit decision of agent is decision of principal. If an 
institution approves loans through the actions of an agent, the 
institution must report the action taken on the application (loan 
originated, approved but not accepted, or denied, for example). State 
law determines whether one party is the agent of another. (Appendix A of 
this part, Paragraphs IV.A. and V.B.)
    10. Affiliate bank underwriting (250.250 review). If an institution 
makes an independent evaluation of the creditworthiness of an applicant 
(for example, as part of a pre-closing review by an affiliate bank under 
12 CFR 250.250, which interprets section 23A of the Federal Reserve 
Act), the institution is making a credit decision. If the institution 
then acquires the loan, it reports the loan as an origination whether 
the loan closes in the name of the institution or its affiliate. An 
institution that does not acquire the loan but takes another action 
reports that action. (Appendix A of this part, Paragraphs IV.A. and 
V.B.)
    11. Participation loan. An institution that originates a loan and 
then sells partial interests to other institutions reports the loan as 
an origination. An institution that acquires only a partial interest in 
such a loan does not report the transaction even if it has participated 
in the underwriting and origination of the loan. (Appendix A of this 
part, Paragraphs I., II., IV., and V.)
    12. Assumptions. An assumption occurs when an institution enters 
into a written agreement accepting a new borrower as the obligor on an 
existing obligation. An institution reports as a home-purchase loan an 
assumption (or an application for an assumption) in the amount of the 
outstanding principal. If a transaction does not involve a written 
agreement between a new borrower and the institution, it is not an 
assumption for HMDA purposes and is not reported. (Appendix A of this 
part, Paragraphs IV.A. and V.B.)

                       Section 203.2--Definitions

    2(b) Application.
    1. Consistency with Regulation B. Board interpretations that appear 
in the official staff commentary to Regulation B (Equal Credit 
Opportunity, 12 CFR Part 202, Supplement I) are generally applicable to 
the definition of an application under Regulation C. However, under 
Regulation C the definition of an application does not include 
prequalification requests. (Appendix A of this part, Paragraph IV.A.)
    2. Prequalification. A prequalification request is a request by a 
prospective loan applicant for a preliminary determination on whether 
the prospective applicant would likely qualify for credit under an 
institution's standards, or on the amount of credit for which the 
prospective applicant would likely qualify. Some institutions evaluate 
prequalification requests through a procedure that is separate from the 
institution's normal loan application process; others use the same 
process. In either case, Regulation C does not require an institution to 
report prequalification requests on the HMDA-LAR, even though these 
requests may constitute applications under Regulation B. (Appendix A of 
this part, Paragraphs I. and IV.A.)
    2(c) Branch office.
    1. Credit union. For purposes of Regulation C, a ``branch'' of a 
credit union is any office where member accounts are established or 
loans are made, whether or not the office has been approved as a branch 
by a federal or state agency. (See 12 U.S.C. 1752.) (Appendix A of this 
part, Paragraphs I., V.A.7., and V.C.)
    2. Depository institution. A branch of a depository institution does 
not include a loan production office, the office of an affiliate, or the 
office of a third party such as a loan broker. (Appendix A of this part, 
Paragraphs I., V.A.7., and V.C.) (But see Appendix A of this part, 
Paragraph V.C.7., which requires certain depository institutions to 
report property location even for properties located outside those MSAs 
in which the institution has a home or branch office.)
    3. Nondepository institution. A branch of a nondepository 
institution does not include the office of an affiliate or other third 
party such as a loan broker. (Appendix A of this part, Paragraphs I., 
V.A.7., and V.C.) (But see Appendix A of this part, Paragraph V.C.6., 
which requires certain nondepository institutions to report property 
location even in MSAs where they do not have a physical location.)
    2(d) Dwelling.
    1. Scope. The definition of ``dwelling'' is not limited to the 
principal or other residence of the applicant or borrower, and thus 
includes vacation or second homes and rental properties. A dwelling also 
includes a mobile or manufactured home, a multifamily structure (such as 
an apartment building), and a condominium or a cooperative unit. 
Recreational vehicles such as boats or campers

[[Page 89]]

are not dwellings for purposes of HMDA. (Appendix A of this part, 
Paragraphs I.B., IV., and V.A.5.)
    2(e) Financial institution.
    1. Branches of foreign banks--treated as a bank. A federal branch or 
a state-licensed insured branch of a foreign bank is a ``bank'' under 
section 3(a)(1) of the Federal Deposit Insurance Act (12 U.S.C. 
1813(a)), and is covered by HMDA if it meets the tests for a depository 
institution found in Secs. 203.2(e)(1) and 203.3(a)(1) of Regulation C. 
(Appendix A of this part, Paragraphs I.A. and I.B.)
    2. Branches and offices of foreign banks--treated as a for-profit 
mortgage lending institution. Federal agencies, state-licensed agencies, 
state-licensed uninsured branches of foreign banks, commercial lending 
companies owned or controlled by foreign banks, and entities operating 
under section 25 or 25(a) of the Federal Reserve Act, 12 U.S.C. 601 and 
611 (Edge Act and Agreement corporations) are not ``banks'' under the 
Federal Deposit Insurance Act. These entities are nonetheless covered by 
HMDA if they meet the tests for a nondepository mortgage lending 
institution found in Secs. 203.2(e)(2) and 203.3(a)(2) of Regulation C. 
(Appendix A of this part, Paragraphs I.C. and I.D.)
    2(f) Home-improvement loan.
    1. Definition. A home-improvement loan is a loan that is made for 
the purpose of home improvement and that is classified by the 
institution as a home-improvement loan. (Appendix A of this part, 
Paragraphs IV. and V.A.5. Code 2.)
    2. Statement of the applicant. An institution may rely on the oral 
or written statement of an applicant regarding the proposed use of loan 
proceeds. (Appendix A of this part, Paragraphs IV. and V.A.5. Code 2.c.)
    3. Home-equity lines. An institution that has chosen to report home-
equity lines of credit reports as a home-improvement loan only the part 
of a home-equity line that is intended for home improvement. An 
institution that reports home-equity lines reports the disposition of 
all applications, not just originations. (Appendix A of this part, 
Paragraphs IV. and V.A.5. Code 2.c.)
    4. Classification requirement. An institution has ``classified'' a 
loan as a home-improvement loan if it has entered the loan on its books 
as a home-improvement loan, or has otherwise coded or identified the 
loan as a home-improvement loan. For example, an institution that has 
booked a loan or reported it on a ``call report'' as a home-improvement 
loan has classified it as a home-improvement loan. An institution may 
also classify loans as home-improvement loans in other ways (for 
example, by color-coding loan files). (Appendix A of this part, 
Paragraphs IV. and V.A.5. Code 2.)
    5. Improvements to real property. Home improvements include 
improvements both to a dwelling and to the real property on which the 
dwelling is located (for example, installation of a swimming pool, 
construction of a garage, or landscaping). (Appendix A of this part, 
Paragraphs IV. and V.A.5. Code 2.)
    6. Commercial and other loans. A loan for improvement purposes 
originated outside an institution's consumer lending division (such as a 
loan to improve an apartment building made through the commercial loan 
department) is reported if the institution classifies it as a home-
improvement loan. (Appendix A of this part, Paragraphs IV. and V.A.5. 
Code 1.)
    7. Multiple-purpose loan. A loan for home improvement and for other 
purposes is treated as a home-improvement loan even if less than 50 
percent of the total loan proceeds are to be used for improvement, 
provided the institution classifies the loan as a home-improvement loan. 
(Appendix A of this part, Paragraphs IV. and V.A.5. Code 2.) (But see 
comment (2)(f)-3 of this supplement on home-equity lines of credit.)
    8. Mixed-use property. A loan to improve property used for 
residential and commercial purposes (for example, a building containing 
apartment units and retail space) satisfies the purpose requirement if 
the loan proceeds are primarily to improve the residential portion of 
the property. If the loan proceeds are to improve the entire property 
(for example, to replace the heating system), the loan satisfies the 
purpose requirement if the property itself is primarily residential. An 
institution may use any reasonable standard to determine the primary use 
of the property, such as by square footage or by the income generated. 
An institution may select the standard to apply on a case-by-case basis. 
To report the loan as a home-improvement loan, the institution must also 
classify it as such. (Appendix A of this part, Paragraphs IV. and V.A.5. 
Code 2.)
    2(g) Home-purchase loan.
    1. Multiple properties. A home-purchase loan includes a loan secured 
by one dwelling and used to purchase another dwelling. (Appendix A of 
this part, Paragraphs IV. and V.A.5. Code 1.)
    2. Mixed-use property. A loan to purchase property used primarily 
for residential purposes (for example, an apartment building containing 
a convenience store) is a home-purchase loan. An institution may use any 
reasonable standard to determine the primary use of the property, such 
as by square footage or by the income generated. An institution may 
select the standard to apply on a case-by-case basis. (Appendix A of 
this part, Paragraphs IV.A., IV.B.1., and V.A.5. Code 1.)
    3. Farm loan. A loan to purchase property used primarily for 
agricultural purposes is not a home-purchase loan even if the property 
includes a dwelling. An institution may use any reasonable standard to 
determine the primary use of the property, such as by

[[Page 90]]

reference to the exemption from Regulation X (Real Estate Settlement 
Procedures, 24 CFR 3500.5(b)(1)) for a loan on property of 25 acres or 
more. An institution may select the standard to apply on a case-by-case 
basis. (Appendix A of this part, Paragraphs IV.B.1. and V.A.5. Code 1.)
    4. Commercial and other loans. A home-purchase loan includes a loan 
originated outside an institution's residential mortgage lending 
division (such as a loan for the purchase of an apartment building made 
through the commercial loan department). For home-purchase loans, there 
is no classification test. (Appendix A of this part, Paragraphs IV. and 
V.A.5. Code 1.)
    5. Construction and permanent financing. A home-purchase loan 
includes both a combined construction/permanent loan and the permanent 
financing that replaces a construction-only loan. It does not include a 
construction-only loan, which is considered ``temporary financing'' 
under Regulation C and is not reported. (Appendix A of this part, 
Paragraphs IV.A. and B.2, and V.A.5. Code 1.)
    6. Home-equity line. An institution that has chosen to report home-
equity lines of credit reports as a home-purchase loan only the part 
that is intended for home purchase. An institution may rely on the 
applicant's oral or written statement about the proposed use of the 
funds. An institution that reports home-equity lines reports the 
disposition of all applications, not just the originations. (Appendix A 
of this part, Paragraphs IV. and V.A.5. Code 1.)

                   Section 203.3--Exempt Institutions

    3(a) Exemption based on location, asset size, or number of home-
purchase loans.
    1. General. An institution that ceases to meet the tests for HMDA 
coverage (such as the 10 percent test for nondepository institutions) or 
becomes exempt may stop collecting HMDA data beginning with the next 
calendar year. For example, a bank whose assets are at or below the 
threshold on December 31 of a given year reports data for that full 
calendar year, in which it was covered, but does not report data for the 
succeeding calendar year. (Appendix A of this part, Paragraph I.)
    2. Adjustment of exemption threshold for depository institutions. 
For data collection in 1998, the asset-size exemption threshold is $29 
million. Depository institutions with assets at or below $29 million are 
exempt from collecting data for 1998.
    3. Coverage after a merger. Several scenarios of data collection 
responsibilities for the calendar year of a merger are described below. 
Under all the scenarios, if the merger results in a covered institution, 
that institution must begin data collection January 1 of the following 
calendar year. (Appendix A of this part, Paragraph I.)
    i. Two institutions are exempt from Regulation C because of asset 
size. The institutions merge. No data collection is required for the 
year of the merger (even if the merger results in a covered 
institution).
    ii. A covered institution and an exempt institution merge. The 
covered institution is the surviving institution. For the year of the 
merger, data collection is required for the covered institution's 
transactions. Data collection is optional for transactions handled in 
offices of the previously exempt institution.
    iii. A covered institution and an exempt institution merge. The 
exempt institution is the surviving institution, or a new institution is 
formed. Data collection is required for transactions of the covered 
institution that take place prior to the merger. Data collection is 
optional for transactions taking place after the merger date.
    iv. Two covered institutions merge. Data collection is required for 
the entire year. The surviving or resulting institution files either a 
consolidated submission or separate submissions for that year.
    4. Mergers versus purchases in bulk. If a covered institution 
acquires loans in bulk from another institution (for example, from the 
receiver for a failed institution) but no merger or acquisition of an 
institution is involved, the institution reports the loans as purchased 
loans. (Appendix A of this part, Paragraph V.B.)

                 Section 203.4--Compilation of Loan Data

    4(a) Data format and itemization.
    1. Quarterly updating. An institution must make a good-faith effort 
to record all data concerning covered transactions--loan originations 
(including refinancings), loan purchases, and the disposition of 
applications that did not result in originations--fully and accurately 
within 30 days after the end of each calendar quarter. If some data are 
inaccurate or incomplete despite this good-faith effort, the error or 
omission is not a violation of Regulation C provided that the 
institution corrects and completes the information prior to reporting 
the HMDA-LAR to its regulatory agency. (Appendix A of this part, 
Paragraph II.E.)
    2. Updating--agency requirements. Certain state or federal 
regulations, such as the Federal Deposit Insurance Corporation's 
regulations, may require an institution to update its data more 
frequently than is required under Regulation C. (Appendix A of this 
part, Paragraph II.E.)
    3. Form of updating. An institution may maintain the quarterly 
updates of the HMDA-LAR in electronic or any other format, provided the 
institution can make the information available to its regulatory agency 
in a timely manner upon request. (Appendix A of this part, Paragraph 
II.E.)
    Paragraph 4(a)(1) Application date.

[[Page 91]]

    1. Application date--consistency. In reporting the date of 
application, an institution reports the date the application was 
received or the date shown on the application. Although an institution 
need not choose the same approach for its entire HMDA submission, it 
should be generally consistent (such as by routinely using one approach 
within a particular division of the institution or for a category of 
loans). (Appendix A of this part, Paragraph V.A.2.)
    2. Application date--application forwarded by a broker. For an 
application forwarded by a broker, an institution reports the date the 
application was received by the broker, the date the application was 
received by the institution, or the date shown on the application. 
Although an institution need not choose the same approach for its entire 
HMDA submission, it should be generally consistent (such as by routinely 
using one approach within a particular division of the institution or 
for a category of loans). (Appendix A of this part, Paragraph V.A.2.)
    3. Application date--reinstated application. If, within the same 
calendar year, an applicant asks an institution to reinstate a 
counteroffer that the applicant previously did not accept (or asks the 
institution to reconsider an application that was denied, withdrawn, or 
closed for incompleteness), the institution may treat that request as 
the continuation of the earlier transaction or as a new transaction. If 
the institution treats the request for reinstatement or reconsideration 
as a new transaction, it report the date of the request as the 
application date. (Appendix A of this part, Paragraph V.A.2.)
    Paragraph 4(a)(2) Type and purpose.
    1. Purpose--multiple-purpose loan. If a loan is for home improvement 
and another covered purpose, an institution reports the loan as a home-
improvement loan if the institution classifies it as a home-improvement 
loan. Otherwise the institution reports the loan as a home-purchase loan 
or a refinancing, as appropriate. An institution may determine how to 
report such loans on a case-by-case basis. (Appendix A of this part, 
Paragraphs V.A.4. and 5.)
    Paragraph 4(a)(3) Occupancy.
    1. Occupancy--actual occupancy status. If a loan relates to 
multifamily property, property located outside an MSA, or property in an 
MSA where the institution has no home or branch office, the institution 
may either report the actual occupancy status or report using the code 
for ``not applicable.'' (A nondepository institution may be deemed to 
have a home or branch office in an MSA under Sec. 203.2(c)(2) of 
Regulation C.) (Appendix A of this part, Paragraph V.A.7.)
    2. Occupancy--multiple properties. If a loan relates to multiple 
properties, the institution reports the owner-occupancy status of the 
property for which property location is being reported. (See the 
comments to paragraphs 4(a)(6) Property location.) (Appendix A of this 
part, Paragraphs V.A.6. and 7.)
    Paragraph 4(a)(4) Loan amount.
    1. Loan amount--counteroffer. If an applicant accepts a counteroffer 
for an amount different from the amount initially requested, the 
institution reports the loan amount granted. If an applicant does not 
accept a counteroffer or fails to respond, the institution reports the 
loan amount initially requested. (Appendix A of this part, Paragraph 
V.A.8.f.)
    2. Loan amount--multiple-purpose loan. Except in the case of a home-
equity line of credit, an institution reports the entire amount of the 
loan, even if only a part of the proceeds is intended for home purchase 
or home improvement. (Appendix A of this part, Paragraph V.A.8.)
    3. Loan amount--home-equity line. An institution that reports home-
equity lines of credit reports only the part that is intended for home-
improvement or home-purchase purposes. An institution may rely on the 
applicant's oral or written statement about the proposed use of the loan 
proceeds. (Appendix A of this part, Paragraph V.A.8.c.)
    4. Loan amount--assumption. An institution that enters into a 
written agreement accepting a new party as the obligor on a loan reports 
the amount of the outstanding principal on the assumption as the loan 
amount. (Appendix A of this part, Paragraphs V.A.8.)
    Paragraph 4(a)(5) Type of action taken and date.
    1. Action taken--counteroffers. If an institution makes a 
counteroffer to lend on terms different from the applicant's initial 
request (for example, for a shorter loan maturity) and the applicant 
does not accept the counteroffer or fails to respond, the institution 
reports the action taken as a denial. (Appendix A of this part, 
Paragraph V.B.)
    2. Action taken--rescinded transactions. If a borrower rescinds a 
transaction after closing, the institution, on a case-by-case basis, may 
report the transaction either as an origination or as an application 
that was approved but not accepted. (Appendix A of this part, Paragraph 
V.B.)
    3. Action taken--purchased loans. An institution reports the loans 
that it purchased during the calendar year, and does not report the 
loans that it declined to purchase. (Appendix A of this part, Paragraph 
V.B.)
    4. Action taken--conditional approvals. If an institution issues a 
loan approval subject to the applicant's meeting underwriting conditions 
(other than customary loan commitment or loan closing conditions, such 
as a ``clear title'' requirement or an acceptable property survey) and 
the applicant does not meet them, the institution reports the action 
taken as a denial. (Appendix A of this part, Paragraph V.B.)
    5. Action taken date--approved but not accepted. For a loan approved 
by an institution

[[Page 92]]

but not accepted by the applicant, the institution reports using any 
reasonable date, such as the approval date, the deadline for accepting 
the offer, or the date the file was closed. Although an institution need 
not choose the same approach for its entire HMDA submission, it should 
be generally consistent (such as by routinely using one approach within 
a particular division of the institution or for a category of loans). 
(Appendix A of this part, Paragraph V.B.3.b.)
    6. Action taken date--originations. For loan originations, an 
institution generally reports the settlement or closing date. For loan 
originations that an institution acquires through a broker, the 
institution reports either the settlement or closing date, or the date 
the institution acquired the loan from the broker. If the disbursement 
of funds takes place on a date later than the settlement or closing 
date, the institution may use the date of disbursement. For a 
construction/permanent loan, the institution reports either the 
settlement or closing date, or the date the loan converts to the 
permanent financing. Although an institution need not choose the same 
approach for its entire HMDA submission, it should be generally 
consistent (such as by routinely using one approach within a particular 
division of the institution or for a category of loans). (Appendix A of 
this part, Paragraph V.B.3.)
    Paragraph 4(a)(6) Property location.
    1. Property location--multiple properties (home improvement/
refinance of home improvement). For a home-improvement loan, an 
institution reports the property being improved. If more than one 
property is being improved, the institution reports the location of one 
of the properties or reports the loan using multiple entries on its 
HMDA-LAR (with unique identifiers) and allocating the loan amount among 
the properties. (Appendix A of this part, Paragraph V.C.)
    2. Property location--multiple properties (home purchase/refinance 
of home purchase). For a home-purchase loan, an institution reports the 
property taken as security. If an institution takes more than one 
property as security, the institution reports the location of the 
property being purchased if there is just one. If the loan is to 
purchase multiple properties and is secured by multiple properties, the 
institution reports the location of one of the properties or reports the 
loan using multiple entries on its HMDA-LAR (with unique identifiers) 
and allocating the loan amount among the properties. (Appendix A of this 
part, Paragraph V.C.)
    3. Property location--loans purchased from another institution. The 
requirement to report the property location by census tract in an MSA 
where the institution has a home or branch office applies not only to 
loan applications and originations but also to loans purchased from 
another institution. This includes loans purchased from an institution 
that did not have a home or branch office in that MSA and did not 
collect the property location information. (Appendix A of this part, 
Paragraph V.C.)
    4. Property location--mobile or manufactured home. If information 
about the potential site of a mobile or manufactured home is not 
available, an institution reports using the code for ``not applicable.'' 
(Appendix A of this part, Paragraph V.C.)
    5. Property location--use of BNA. At its option, an institution may 
report property location by using a block numbering area (BNA). The U.S. 
Census Bureau, in conjunction with state agencies, has established BNAs 
as statistical subdivisions of counties in which census tracts have not 
been established. BNAs are generally identified in census data by 
numbers in the range 9501 to 9999.99. (Appendix A of this part, 
Paragraph V.C.4.)
    Paragraph 4(a)(7) Applicant and income data.
    1. Applicant data--completion by applicant. An institution reports 
the monitoring information as provided by the applicant. For example, if 
an applicant checks the ``other'' box the institution reports using the 
``other'' code. (Appendix A of this part, Paragraph V.D.)
    2. Applicant data--completion by lender. If an applicant fails to 
provide the requested information for an application taken in person, 
the institution reports the data on the basis of visual observation or 
surname. As stated in paragraph I.B.5 to Appendix B of this part, the 
institution does not use the ``other'' code, but selects from the 
categories listed on the form. (Appendix A of this part, Paragraph V.D.)
    3. Applicant data--application completed in person. When an 
applicant meets in person with a lender to complete an application that 
was begun by mail or telephone, the institution must request the 
monitoring information. If the meeting occurs after the application 
process is complete, for example, at closing, the institution is not 
required to obtain monitoring information. (Appendix A of this part, 
Paragraph V.D.)
    4. Applicant data--joint applicant. A joint applicant may enter the 
government monitoring information on behalf of an absent joint 
applicant. If the information is not provided, the institution reports 
using the code for ``information not provided by applicant in mail or 
telephone application.'' (Appendix A of this part, Paragraph V.D.)
    5. Applicant data--video and other electronic application processes. 
An institution that accepts applications through electronic media with a 
video component treats the applications as taken in person and collects 
the information about the race or national origin and sex of applicants. 
An institution that accepts applications through electronic media 
without a video component (for example, the Internet or facsimile) 
treats the applications

[[Page 93]]

as accepted by mail. (Appendix A of this part, Paragraph V.D.) (See 
Appendix B of this part for procedures to be used for data collection.)
    6. Income data--income relied upon. An institution reports the gross 
annual income relied on in evaluating the creditworthiness of 
applicants. For example, if an institution relies on an applicant's 
salary to compute a debt-to-income ratio, but also relies on the 
applicant's annual bonus to evaluate creditworthiness, the institution 
reports the salary and the bonus to the extent relied upon. Similarly, 
if an institution relies on the income of a cosigner to evaluate 
creditworthiness, the institution includes this income to the extent 
relied upon. But an institution does not include the income of a 
guarantor who is only secondarily liable. (Appendix A of this part, 
Paragraph V.D.5.)
    7. Income data--co-applicant. If two persons jointly apply for a 
loan and both list income on the application, but the institution relies 
only on the income of one applicant in computing ratios and in 
evaluating creditworthiness, the institution reports only the income 
relied on. (Appendix A of this part, Paragraph V.D.5.)
    8. Income data--loan to employee. An institution may report ``NA'' 
in the income field for loans to employees to protect their privacy, 
even though the institution relied on their income in making its credit 
decisions. (Appendix A of this part, Paragraph V.D.5.)
    Paragraph 4(a)(8) Purchaser.
    1. Type of purchaser--loan participation interests sold to more than 
one entity. An institution that originates a loan, and then sells it to 
more than one entity, reports the ``type of purchaser'' based on the 
entity purchasing the greatest interest, if any. If an institution 
retains a majority interest it does not report the sale. (Appendix A of 
this part, Paragraph V.E.)
    4(c) Optional data.
    1. Agency requirements. Certain state or federal entities, such as 
the Office of Thrift Supervision, require institutions to report the 
reasons for denial even though this is optional reporting under HMDA and 
Regulation C. (Appendix A of this part, Paragraph V.F.)
    4(d) Excluded data.
    1. Loan pool. The purchase of an interest in a loan pool (such as a 
mortgage-participation certificate, a mortgage-backed security, or a 
real estate mortgage investment conduit or ``REMIC'') is a purchase of 
an interest in a security under HMDA and is not reported on the HMDA-
LAR. (Appendix A of this part, Paragraph IV.B.5.)

                 Section 203.5--Disclosure and Reporting

    5(a) Reporting to agency.
    1. Change in supervisory agency. If the supervisory agency for a 
covered institution changes (as a consequence of a merger or a change in 
the institution's charter, for example), the institution reports data to 
its new supervisory agency for the year of the change and subsequent 
years. (Appendix A of this part, Paragraphs I., III. and VI.)
    2. Subsidiaries. An institution is a subsidiary of a bank or savings 
association (for purposes of reporting HMDA data to the parent's 
supervisory agency) if the bank or savings association holds or controls 
an ownership interest that is greater than 50 percent of the 
institution. (Appendix A of this part, Paragraph I.E. and VI.)
    5(e) Notice of availability.
    1. Poster--suggested text. The suggested wording of the poster text 
provided in Appendix A of this part is optional. An institution may use 
other text that meets the requirements of the regulation. (Appendix A of 
this part, Paragraph III.F.)

                       Section 203.6--Enforcement

    6(b) Bona fide errors.
    1. Bona fide error--information from third parties. An institution 
that obtains the property location information for applications and 
loans from third parties (such as appraisers or vendors of ``geocoding'' 
services) is responsible for ensuring that the information reported on 
its HMDA-LAR is correct. An incorrect entry for a census tract number is 
a bona fide error, and is not a violation of the act or regulation, 
provided that the institution maintains reasonable procedures to avoid 
such errors (for example, by conducting periodic checks of the 
information obtained from these third parties). (Appendix A of this 
part, Paragraph V.C.)
[60 FR 63396, Dec. 11, 1995, as amended at 62 FR 28626, May 27, 1997; 62 
FR 66260, Dec. 18, 1997]



PART 204--RESERVE REQUIREMENTS OF DEPOSITORY INSTITUTIONS (REGULATION D)--Table of Contents




Sec.
204.1  Authority, purpose and scope.
204.2  Definitions.
204.3  Computation and maintenance.
204.4  Transitional adjustments in mergers
204.5  Emergency reserve requirement.
204.6  Supplemental reserve requirement.
204.7  Penalties.
204.8  International banking facilities.
204.9  Reserve requirement ratios.

                             Interpretations

204.121  Bankers' banks.
204.122  Secondary market activities of international banking 
          facilities.
204.123  Sale of Federal funds by investment companies or trusts in 
          which the entire beneficial interest is held exclusively by 
          depository institutions.

[[Page 94]]

204.124  Repurchase agreement involving shares of a money market mutual 
          fund whose portfolio consists wholly of United States Treasury 
          and Federal agency securities.
204.125  Foreign, international, and supranational entities referred to 
          in Secs. 204.2(c)(1)(iv)(E) and 204.8(a)(2)(i)(B)(5).
204.126  Depository institution participation in ``Federal funds'' 
          market.
204.127  Nondepository participation in ``Federal funds'' market.
204.128  Deposits at foreign branches guaranteed by domestic office of a 
          depository institution.
204.130  Eligibility for NOW accounts.
204.131  Participation by a depository institution in the secondary 
          market for its own time deposits.
204.132  Treatment of loan strip participations.
204.133  Multiple savings deposits treated as a transaction account.
204.134  Linked time deposits and transaction accounts.
204.135  Shifting funds between depository institutions to make use of 
          the low reserve tranche.
204.136  Treatment of trust overdrafts for reserve requirement reporting 
          purposes.

    Authority:  12 U.S.C. 248(a), 248(c), 371a, 461, 601, 611, and 3105.



Sec. 204.1  Authority, purpose and scope.

    (a) Authority. This part is issued under the authority of section 19 
(12 U.S.C. 461 et seq.) and other provisions of the Federal Reserve Act 
and of section 7 of the International Banking Act of 1978 (12 U.S.C. 
3105).
    (b) Purpose. This part relates to reserves that depository 
institutions are required to maintain for the purpose of facilitating 
the implementation of monetary policy by the Federal Reserve System.
    (c) Scope. (1) The following depository institutions are required to 
maintain reserves in accordance with this part:
    (i) Any insured bank as defined in section 3 of the Federal Deposit 
Insurance Act (12 U.S.C. 1813(h)) or any bank that is eligible to apply 
to become an insured bank under section 5 of such Act (12 U.S.C. 1815);
    (ii) Any savings bank or mutual savings bank as defined in section 3 
of the Federal Deposit Insurance Act (12 U.S.C. 1813(f), (g));
    (iii) Any insured credit union as defined in section 101 of the 
Federal Credit Union Act (12 U.S.C. 1752(7)) or any credit union that is 
eligible to apply to become an insured credit union under section 201 of 
such Act (12 U.S.C. 1781);
    (iv) Any member as defined in section 2 of the Federal Home Loan 
Bank Act (12 U.S.C. 1422(4)); and
    (v) Any insured institution as defined in section 401 of the 
National Housing Act (12 U.S.C. 1724(a)) or any institution which is 
eligible to apply to become an insured institution under section 403 of 
such Act (12 U.S.C. 1726).
    (2) Except as may be otherwise provided by the Board, a foreign 
bank's branch or agency located in the United States is required to 
comply with the provisions of this part in the same manner and to the 
same extent as if the branch or agency were a member bank, if its parent 
foreign bank (i) has total worldwide consolidated bank assets in excess 
of $1 billion; or (ii) is controlled by a foreign company or by a group 
of foreign companies that own or control foreign banks that in the 
aggregate have total worldwide consolidated bank assets in excess of $1 
billion. In addition, any other foreign bank's branch located in the 
United States that is eligible to apply to become an insured bank under 
section 5 of the Federal Deposit Insurance Act (12 U.S.C. 1815) is 
required to maintain reserves in accordance with this part as a 
nonmember depository institution.
    (3) Except as may be otherwise provided by the Board, an Edge 
Corporation (12 U.S.C. 611 et seq.) or an Agreement Corporation (12 
U.S.C. 601 et seq.) is required to comply with the provisions of this 
part in the same manner and to the same extent as a member bank.
    (4) This part does not apply to any financial institution that (i) 
is organized solely to do business with other financial institutions; 
(ii) is owned primarily by the financial institutions with which it does 
business; and (iii) does not do business with the general public.
    (5) The provisions of this part do not apply to any deposit that is 
payable only at an office located outside the United States.
[45 FR 56018, Aug. 22, 1980]

[[Page 95]]



Sec. 204.2  Definitions

    For purposes of this part, the following definitions apply unless 
otherwise specified:
    (a)(1) Deposit means:
    (i) The unpaid balance of money or its equivalent received or held 
by a depository institution in the usual course of business and for 
which it has given or is obligated to give credit, either conditionally 
or unconditionally, to an account, including interest credited, or which 
is evidenced by an instrument on which the depository institution is 
primarily liable;
    (ii) Money received or held by a depository institution, or the 
credit given for money or its equivalent received or held by the 
depository institution in the usual course of business for a special or 
specific purpose, regardless of the legal relationships established 
thereby, including escrow funds, funds held as security for securities 
loaned by the depository institution, funds deposited as advance payment 
on subscriptions to United States government securities, and funds held 
to meet its acceptances;
    (iii) An outstanding teller's check, or an outstanding draft, 
certified check, cashier's check, money order, or officer's check drawn 
on the depository institution, issued in the usual course of business 
for any purpose, including payment for services, dividends or purchases;
    (iv) Any due bill or other liability or undertaking on the part of a 
depository institution to sell or deliver securities to, or purchase 
securities for the account of, any customer (including another 
depository institution), involving either the receipt of funds by the 
depository institution, regardless of the use of the proceeds, or a 
debit to an account of the customer before the securities are delivered. 
A deposit arises thereafter, if after three business days from the date 
of issuance of the obligation, the depository institution does not 
deliver the securities purchased or does not fully collateralize its 
obligation with securities similar to the securities purchased. A 
security is similar if it is of the same type and if it is of comparable 
maturity to that purchased by the customer;
    (v) Any liability of a depository institution's affiliate that is 
not a depository institution, on any promissory note, acknowledgment of 
advance, due bill, or similar obligation (written or oral), with a 
maturity of less than one and one-half years, to the extent that the 
proceeds are used to supply or to maintain the availability of funds 
(other than capital) to the depository institution, except any such 
obligation that, had it been issued directly by the depository 
institution, would not constitute a deposit. If an obligation of an 
affiliate of a depository institution is regarded as a deposit and is 
used to purchase assets from the depository institution, the maturity of 
the deposit is determined by the shorter of the maturity of the 
obligation issued or the remaining maturity of the assets purchased. If 
the proceeds from an affiliate's obligation are placed in the depository 
institution in the form of a reservable deposit, no reserves need be 
maintained against the obligation of the affiliate since reserves are 
required to be maintained against the deposit issued by the depository 
institution. However, the maturity of the deposit issued to the 
affiliate shall be the shorter of the maturity of the affiliate's 
obligation or the maturity of the deposit;
    (vi) Credit balances;
    (vii) Any liability of a depository institution on any promissory 
note, acknowledgment of advance, bankers' acceptance, or similar 
obligation (written or oral), including mortgage-backed bonds, that is 
issued or undertaken by a depository institution as a means of obtaining 
funds, except any such obligation that:
    (A) Is issued or undertaken and held for the account of:
    (1) An office located in the United States of another depository 
institution, foreign bank, Edge or Agreement Corporation, or New York 
Investment (Article XII) Company;
    (2) The United States government or an agency thereof; or
    (3) The Export-Import Bank of the United States, Minbanc Capital 
Corporation, the Government Development Bank for Puerto Rico, a Federal 
Reserve Bank, a Federal Home Loan

[[Page 96]]

Bank, or the National Credit Union Administration Central Liquidity 
Facility;
    (B) Arises from a transfer of direct obligations of, or obligations 
that are fully guaranteed as to principal and interest by, the United 
States Government or any agency thereof that the depository institution 
is obligated to repurchase;
    (C) Is not insured by a Federal agency, is subordinated to the 
claims of depositors, has a weighted average maturity of five years or 
more, and is issued by a depository institution with the approval of, or 
under the rules and regulations of, its primary Federal supervisor;
    (D) Arises from a borrowing by a depository institution from a 
dealer in securities, for one business day, of proceeds of a transfer of 
deposit credit in a Federal Reserve Bank or other immediately available 
funds (commonly referred to as Federal funds), received by such dealer 
on the date of the loan in connection with clearance of securities 
transactions; or
    (E) Arises from the creation, discount and subsequent sale by a 
depository institution of its bankers' acceptance of the type described 
in paragraph 7 of section 13 of the Federal Reserve Act (12 U.S.C. 372).
    (viii) Any liability of a depository institution that arises from 
the creation after June 20, 1983, of a bankers' acceptance that is not 
of the type described in paragraph 7 of section 13 of the Federal 
Reserve Act (12 U.S.C. 372) except any such liability held for the 
account of an entity specified in Sec. 204.2(a)(1)(vii)(A); or
    (2) Deposit does not include:
    (i) Trust funds received or held by the depository institution that 
it keeps properly segregated as trust funds and apart from its general 
assets or which it deposits in another institution to the credit of 
itself as trustee or other fiduciary. If trust funds are deposited with 
the commecial department of the depository institution or otherwise 
mingled with its general assets, a deposit liability of the institution 
is created;
    (ii) An obligation that represents a conditional, contingent or 
endorser's liability;
    (iii) Obligations, the proceeds of which are not used by the 
depository institution for purposes of making loans, investments, or 
maintaining liquid assets such as cash or ``due from'' depository 
institutions or other similar purposes. An obligation issued for the 
purpose of raising funds to purchase business premises, equipment, 
supplies, or similar assets is not a deposit;
    (iv) Accounts payable;
    (v) Hypothecated deposits created by payments on an installment loan 
where (A) the amounts received are not used immediately to reduce the 
unpaid balance due on the loan until the sum of the payments equals the 
entire amount of loan principal and interest; (B) and where such amounts 
are irrevocably assigned to the depository institution and cannot be 
reached by the borrower or creditors of the borrower;
    (vi) Dealer reserve and differential accounts that arise from the 
financing of dealer installment accounts receivable, and which provide 
that the dealer may not have access to the funds in the account until 
the installment loans are repaid, as long as the depository institution 
is not actually (as distinguished from contingently) obligated to make 
credit or funds available to the dealer;
    (vii) A dividend declared by a depository institution for the period 
intervening between the date of the declaration of the dividend and the 
date on which it is paid;
    (viii) An obligation representing a pass through account, as defined 
in this section;
    (ix) An obligation arising from the retention by the depository 
institution of no more than a 10 per cent interest in a pool of 
conventional 1-4 family mortgages that are sold to third parties;
    (x) An obligation issued to a State or municipal housing authority 
under a loan-to-lender program involving the issuance of tax exempt 
bonds and the subsequent lending of the proceeds to the depository 
institution for housing finance purposes;
    (xi) Shares of a credit union held by the National Credit Union 
Administration or the National Credit Union Administration Central 
Liquidity Facility under a statutorily authorized assistance program; 
and

[[Page 97]]

    (xii) Any liability of a United States branch or agency of a foreign 
bank to another United States branch or agency of the same foreign bank, 
or the liability of the United States office of an Edge Corporation to 
another United States office of the same Edge Corporation.
    (b)(1) Demand deposit means a deposit that is payable on demand, or 
a deposit issued with an original maturity or required notice period of 
less than seven days, or a deposit representing funds for which the 
depository institution does not reserve the right to require at least 
seven days' written notice of an intended withdrawal. Demand deposits 
may be in the form of:
    (i) Checking accounts;
    (ii) Certified, cashier's, teller's, and officer's checks (including 
such checks issued in payment of dividends);
    (iii) Traveler's checks and money orders that are primary 
obligations of the issuing institution;
    (iv) Checks or drafts drawn by, or on behalf of, a non-United States 
office of a depository institution on an account maintained at any of 
the institution's United States offices;
    (v) Letters of credit sold for cash or its equivalent;
    (vi) Withheld taxes, withheld insurance and other withheld funds;
    (vii) Time deposits that have matured or time deposits upon which 
the contractually required notice of withdrawal as given and the notice 
period has expired and which have not been renewed (either by action of 
the depositor or automatically under the terms of the deposit 
agreement); and
    (viii) An obligation to pay, on demand or within six days, a check 
(or other instrument, device, or arrangement for the transfer of funds) 
drawn on the depository institution, where the account of the 
institution's customer already has been debited.
    (2) The term demand deposit also means deposits or accounts on which 
the depository institution has reserved the right to require at least 
seven days' written notice prior to withdrawal or transfer of any funds 
in the account and from which the depositor is authorized to make 
withdrawals or transfers in excess of the withdrawal or transfer 
limitations specified in paragraph (d)(2) of this section for such an 
account and the account is not a NOW account, or an ATS account or other 
account that meets the criteria specified in either paragraph (b)(3)(ii) 
or (iii) of this section.
    (3) Demand deposit does not include:
    (i) Any account that is a time deposit or a savings deposit under 
this part;
    (ii) Any deposit or account on which the depository institution has 
reserved the right to require at least seven days' written notice prior 
to withdrawal or transfer of any funds in the account and either--
    (A) Is subject to check, draft, negotiable order of withdrawal, 
share draft, or similar item, such as an account authorized by 12 U.S.C. 
1832(a) (NOW account) and a savings deposit described in 
Sec. 204.2(d)(2), provided that the depositor is eligible to hold a NOW 
account; or
    (B) From which the depositor is authorized to make transfers by 
preauthorized transfer or telephonic (including data transmission) 
agreement, order or instruction to another account or to a third party, 
provided that the depositor is eligible to hold a NOW account;
    (iii) Any deposit or account on which the depository institution has 
reserved the right to require at least seven days' written notice prior 
to withdrawal or transfer of any funds in the account and from which 
withdrawals may be made automatically through payment to the depository 
institution itself or through transfer of credit to a demand deposit or 
other account in order to cover checks or drafts drawn upon the 
institution or to maintain a specified balance in, or to make periodic 
transfers to such other account, such as accounts authorized by 12 
U.S.C. 371a (automatic transfer account or ATS account), provided that 
the depositor is eligible to hold an ATS account; or
    (iv) IBF time deposits meeting the requirements of Sec. 204.8(a)(2).
    (c)(1) Time deposit means:
    (i) A deposit that the depositor does not have a right and is not 
permitted to make withdrawals from within six days after the date of 
deposit unless the deposit is subject to an early withdrawal penalty of 
at least seven days' simple interest on amounts withdrawn

[[Page 98]]

within the first six days after deposit.\1\ A time deposit from which 
partial early withdrawals are permitted must impose additional early 
withdrawal penalties of at least seven days' simple interest on amounts 
withdrawn within six days after each partial withdrawal. If such 
additional early withdrawal penalties are not imposed, the account 
ceases to be a time deposit. The account may become a savings deposit if 
it meets the requirements for a saving deposit; otherwise it becomes a 
transaction account. Time deposit includes funds--
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    \1\ A time deposit, or a portion thereof, may be paid during the 
period when an early withdrawal penalty would otherwise be required 
under this part without imposing an early withdrawal penalty specified 
by this part:
    (a) Where the time deposit is maintained in an individual retirement 
account established in accordance with 26 U.S.C. 408 and is paid within 
seven days after establishment of the individual retirement account 
pursuant to 26 CFR 1.408-6(d)(4), where it is maintained in a Keogh 
(H.R. 10) plan, or where it is maintained in a 401(k) plan under 26 
U.S.C. 401(k); Provided that the depositor forfeits an amount at least 
equal to the simple interest earned on the amount withdrawn;
    (b) Where the depository institution pays all or a portion of a time 
deposit representing funds contributed to an individual retirement 
account or a Keogh (H.R.10) plan established pursuant to 26 U.S.C. 408 
or 26 U.S.C. 401 or to a 401(k) plan established pursuant to 26 U.S.C. 
401(k) when the individual for whose benefit the account is maintained 
attains age 59\1/2\ or is disabled (as defined in 26 U.S.C. 72(m)(7)) or 
thereafter;
    (c) Where the depository institution pays that portion of a time 
deposit on which federal deposit insurance has been lost as a result of 
the merger of two or more federally insured banks in which the depositor 
previously maintained separate time deposits, for a period of one year 
from the date of the merger;
    (d) Upon the death of any owner of the time deposit funds;
    (e) When any owner of the time deposit is determined to be legally 
incompetent by a court or other administrative body of competent 
jurisdiction; or
    (f) Where a time deposit is withdrawn within ten days after a 
specified maturity date even though the deposit contract provided for 
automatic renewal at the maturity date.
---------------------------------------------------------------------------

    (A) Payable on a specified date not less than seven days after the 
date of deposit;
    (B) Payable at the expiration of a specified time not less than 
seven days after the date of deposit;
    (C) Payable only upon written notice that is actually required to be 
given by the depositor not less than seven days prior to withdrawal;
    (D) Held in club accounts (such as Christmas club accounts and 
vacation club accounts that are not maintained as savings deposits) that 
are deposited under written contracts providing that no withdrawal shall 
be made until a certain number of periodic deposits have been made 
during a period of not less than three months even though some of the 
deposits may be made within six days from the end of the period; or
    (E) Share certificates and certificates of indebtedness issued by 
credit unions, and certificate accounts and notice accounts issued by 
savings and loan associations;
    (ii) A savings deposit;
    (iii) An IBF time deposit meeting the requirements of 
Sec. 204.8(a)(2); and
    (iv) Borrowings, regardless of maturity, represented by a promissory 
note, an acknowledgment of advance, or similar obligation described in 
Sec. 204.2(a)(1)(vii) that is issued to, or any bankers' acceptance 
(other than the type described in 12 U.S.C. 372) of the depository 
institution held by--
    (A) Any office located outside the United States of another 
depository institution or Edge or agreement corporation organized under 
the laws of the United States;
    (B) Any office located outside the United States of a foreign bank;
    (C) A foreign national government, or an agency or instrumentality 
thereof,\2\ engaged principally in activities which are ordinarily 
performed in the United States by governmental entities;
---------------------------------------------------------------------------


    \2\ Other than states, provinces, municipalities, or other regional 
or local governmental units or agencies or instrumentalities thereof.
---------------------------------------------------------------------------

    (D) An international entity of which the United States is a member; 
or
    (E) Any other foreign, international, or supranational entity 
specifically designated by the Board.\3\
---------------------------------------------------------------------------


    \3\ The designated entities are specified in 12 CFR 204.125.

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

[[Page 99]]

    (2) A time deposit may be represented by a transferable or 
nontransferable, or a negotiable or nonnegotiable, certificate, 
instrument, passbook, or statement, or by book entry or otherwise.
    (d)(1) Savings deposit means a deposit or account with respect to 
which the depositor is not required by the deposit contract but may at 
any time be required by the depository institution to give written 
notice of an intended withdrawal not less than seven days before 
withdrawal is made, and that is not payable on a specified date or at 
the expiration of a specified time after the date of deposit. The term 
savings deposit includes a regular share account at a credit union and a 
regular account at a savings and loan association.
    (2) The term savings deposit also means: A deposit or account, such 
as an account commonly known as a passbook savings account, a statement 
savings account, or as a money market deposit account (MMDA), that 
otherwise meets the requirements of Sec. 204.2(d)(1) and from which, 
under the terms of the deposit contract or by practice of the depository 
institution, the depositor is permitted or authorized to make no more 
than six transfers and withdrawals, or a combination of such transfers 
and withdrawals, per calendar month or statement cycle (or similar 
period) of at least four weeks, to another account (including a 
transaction account) of the depositor at the same institution or to a 
third party by means of a preauthorized or automatic transfer, or 
telephonic (including data transmission) agreement, order or 
instruction, and no more than three of the six such transfers may be 
made by check, draft, debit card, or similar order made by the depositor 
and payable to third parties. A preauthorized transfer includes any 
arrangement by the depository institution to pay a third party from the 
account of a depositor upon written or oral instruction (including an 
order received through an automated clearing house (ACH)) or any 
arrangement by a depository institution to pay a third party from the 
account of the depositor at a predetermined time or on a fixed schedule. 
Such an account is not a transaction account by virtue of an arrangement 
that permits transfers for the purpose of repaying loans and associated 
expenses at the same depository institution (as originator or servicer) 
or that permits transfers of funds from this account to another account 
of the same depositor at the same institution or permits withdrawals 
(payments directly to the depositor) from the account when such 
transfers or withdrawals are made by mail, messenger, automated teller 
machine, or in person or when such withdrawals are made by telephone 
(via check mailed to the depositor) regardless of the number of such 
transfers or withdrawals.\4\ 
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    \4\ In order to ensure that no more than the permitted number of 
withdrawals or transfers are made, for an account to come within the 
definition in paragraph (d)(2) of this section, a depository institution 
must either:
    (a) Prevent withdrawals or transfers of funds from this account that 
are in excess of the limits established by paragraph (d)(2) of this 
section, or
    (b) Adopt procedures to monitor those transfers on an ex post basis 
and contact customers who exceed the established limits on more than an 
occasional basis.
    For customers who continue to violate those limits after they have 
been contacted by the depository institution, the depository institution 
must either close the account and place the funds in another account 
that the depositor is eligible to maintain, or take away the transfer 
and draft capacities of the account.
    An account that authorizes withdrawals or transfers in excess of the 
permitted number is a transaction account regardless of whether the 
authorized number of transactions are actually made. For accounts 
described in paragraph (d)(2) of this section, the institution at its 
option may use, on a consistent basis, either the date on the check, 
draft, or similar item, or the date the item is paid in applying the 
limits imposed by that section.
---------------------------------------------------------------------------

    (3) A deposit may continue to be classified as a savings deposit 
even if the depository institution exercises its right to require notice 
of withdrawal.
    (4) Savings deposit does not include funds deposited to the credit 
of the depository institution's own trust department where the funds 
involved are utilized to cover checks or drafts. Such funds are 
transaction accounts.
    (e) Transaction account means a deposit or account from which the 
depositor or account holder is permitted to make transfers or 
withdrawals by negotiable or transferable instrument,

[[Page 100]]

payment order of withdrawal, telephone transfer, or other similar device 
for the purpose of making payments or transfers to third persons or 
others or from which the depositor may make third party payments at an 
automated teller machine (ATM) or a remote service unit, or other 
electronic device, including by debit card, but the term does not 
include savings deposits or accounts described in paragraph (d)(2) of 
this section even though such accounts permit third party transfers. 
Transaction account includes:
    (1) Demand deposits;
    (2) Deposits or accounts on which the depository institution has 
reserved the right to require at least seven days' written notice prior 
to withdrawal or transfer of any funds in the account and that are 
subject to check, draft, negotiable order of withdrawal, share draft, or 
other similar item, except accounts described in paragraph (d)(2) of 
this section (savings deposits), but including accounts authorized by 12 
U.S.C. 1832(a) (NOW accounts).
    (3) Deposits or accounts on which the depository institution has 
reserved the right to require at least seven days' written notice prior 
to withdrawal or transfer of any funds in the account and from which 
withdrawals may be made automatically through payment to the depository 
institution itself or through transfer or credit to a demand deposit or 
other account in order to cover checks or drafts drawn upon the 
institution or to maintain a specified balance in, or to make periodic 
transfers to such accounts, except accounts described in paragraph 
(d)(2) of this section, but including accounts authorized by 12 U.S.C. 
371a (automatic transfer accounts or ATS accounts).
    (4) Deposits or accounts on which the depository institution has 
reserved the right to require at least seven days' written notice prior 
to withdrawal or transfer of any funds in the account and under the 
terms of which, or by practice of the depository institution, the 
depositor is permitted or authorized to make more than six withdrawals 
per month or statement cycle (or similar period) of at least four weeks 
for the purposes of transferring funds to another account of the 
depositor at the same institution (including transaction account) or for 
making payment to a third party by means of a preauthorized transfer, or 
telephonic (including data transmission) agreement, order or 
instruction, except accounts described in paragraph (d)(2) of this 
section. An account that authorizes more than six such withdrawals in a 
calendar month, or statement cycle (or similar period) of at least four 
weeks, is a transaction account whether or not more than six such 
transfers are made during such period. A preauthorized transfer includes 
any arrangement by the depository institution to pay a third party from 
the account of a depositor upon written or oral instruction (including 
an order received through an automated clearing house (ACH)), or any 
arrangement by a depository institution to pay a third party from the 
account of the depositor at a predetermined time or on a fixed schedule. 
Such an account is not a transaction account by virtue of an arrangement 
that permits transfers for the purpose of repaying loans and associated 
expenses at the same depository institution (as originator or servicer) 
or that permits transfers of funds from this account to another account 
of the same depositor at the same institution or permits withdrawals 
(payments directly to the depositor) from the account when such 
transfers or withdrawals are made by mail, messenger, automated teller 
machine or in person or when such withdrawals are made by telephone (via 
check mailed to the depositor) regardless of the number of such 
transfers or withdrawals.
    (5) Deposits or accounts maintained in connection with an 
arrangement that permits the depositor to obtain credit directly or 
indirectly through the drawing of a negotiable or nonnegotiable check, 
draft, order or instruction or other similar device (including telephone 
or electronic order or instruction) on the issuing institution that can 
be used for the purpose of making payments or transfers to third persons 
or others or to a deposit account of the depositor.
    (6) All deposits other than time and savings accounts, including 
those accounts that are time and savings deposits in form but that the 
Board has

[[Page 101]]

determined, by rule or order, to be transaction accounts.
    (f)(1) Nonpersonal time deposit means:
    (i) A time deposit, including an MMDA or any other savings deposit, 
representing funds in which any beneficial interest is held by a 
depositor which is not a natural person;
    (ii) A time deposit, including an MMDA or any other savings deposit, 
that represents funds deposited to the credit of a depositor that is not 
a natural person, other than a deposit to the credit of a trustee or 
other fiduciary if the entire beneficial interest in the deposit is held 
by one or more natural persons;
    (iii) A transferable time deposit. A time deposit is transferable 
unless it contains a specific statement on the certificate, instrument, 
passbook, statement or other form representing the account that it is 
not transferable. A time deposit that contains a specific statement that 
it is not transferable is not regarded as transferable even if the 
following transactions can be effected: a pledge as collateral for a 
loan, a transaction that occurs due to circumstances arising from death, 
incompetency, marriage, divorce, attachment, or otherwise by operation 
of law or a transfer on the books or records of the institution; and
    (iv) A time deposit represented by a promissory note, an 
acknowledgment of advance, or similar obligation described in paragraph 
(a)(1)(vii) of this section that is issued to, or any bankers' 
acceptance (other than the type described in 12 U.S.C. 372) of the 
depository institution held by:
    (A) Any office located outside the United States of another 
depository institution or Edge or agreement corporation organized under 
the laws of the United States;
    (B) Any office located outside the United States of a foreign bank;
    (C) A foreign national government, or an agency or instrumentality 
thereof,\5\ engaged principally in activities which are ordinarily 
performed in the United States by governmental entities;
---------------------------------------------------------------------------


    \5\ Other than states, provinces, municipalities, or other regional 
or local governmental units or agencies or instrumentalities thereof.
---------------------------------------------------------------------------

    (D) An international entity of which the United States is a member; 
or
    (E) Any other foreign, international, or supranational entity 
specifically designated by the Board.\6\
---------------------------------------------------------------------------


    \6\ The designated entities are specified in 12 CFR 217.126.
---------------------------------------------------------------------------

    (2) Nonpersonal time deposit does not include nontransferable time 
deposits to the credit of or in which the entire beneficial interest is 
held by an individual pursuant to an individual retirement account or 
Keogh (H.R. 10) plan under 26 U.S.C. 408, 401, or non-transferable time 
deposits held by an employer as part of an unfunded deferred-
compensation plan established pursuant to subtitle D of the Revenue Act 
of 1978 (Pub. L. 95-600, 92 Stat. 2763), or a 401(k) plan under 26 
U.S.C. 401(k).
    (g) Natural person means an individual or a sole proprietorship. The 
term does not mean a corporation owned by an individual, a partnership 
or other association.
    (h) Eurocurrency liabilities means:
    (1) For a depository institution or an Edge or Agreement Corporation 
organized under the laws of the United States, the sum, if positive, of 
the following:
    (i) Net balances due to its non-United States offices and its 
international banking facilities (IBFs) from its United States offices;
    (ii)(A) For a depository institution organized under the laws of the 
United States, assets (including participations) acquired from its 
United States offices and held by its non-United States offices, by its 
IBF, or by non-United States offices of an affiliated Edge or Agreement 
Corporation; 7 or
---------------------------------------------------------------------------


    7 This paragraph does not apply to assets that were 
acquired by an IBF from its establishing entity before the end of the 
second reserve computation period after its establishment.
---------------------------------------------------------------------------

    (B) For an Edge or Agreement Corporation, assets (including 
participations) acquired from its United States offices and held by its 
non-United States offices, by its IBF, by non-United States offices of 
its U.S. or foreign parent institution, or by non-United States offices 
of an affiliated Edge or Agreement Corporation; and
    (iii) Credit outstanding from its non-United States offices to 
United States

[[Page 102]]

residents (other than assets acquired and net balances due from its 
United States offices), except credit extended (A) from its non-United 
States offices in the aggregate amount of $100,000 or less to any United 
States resident, (B) by a non-United States office that at no time 
during the computation period had credit outstanding to United States 
residents exceeding $1 million, (C) to an international banking 
facility, or (D) to an institution that will be maintaining reserves on 
such credit pursuant to this part. Credit extended from non-United 
States offices or from IBFs to a foreign branch, office, subsidiary, 
affiliate of other foreign establishment (foreign affiliate) controlled 
by one or more domestic corporations is not regarded as credit extended 
to a United States resident if the proceeds will be used to finance the 
operations outside the United States of the borrower or of other foreign 
affiliates of the controlling domestic corporation(s).
    (2) For a United States branch or agency of a foreign bank, the sum, 
if positive, of the following:
    (i) Net balances due to its foreign bank (including offices thereof 
located outside the United States) and its international banking 
facility after deducting an amount equal to 8 per cent of the following: 
the United States branch's or agency's total assets less the sum of (A) 
cash items in process of collection; (B) unposted debits; (C) demand 
balances due from depository institutions organized under the laws of 
the United States and from other foreign banks; (D) balances due from 
foreign central banks; and (E) positive net balances due from its IBF, 
its foreign bank, and the foreign bank's United States and non-United 
States offices; and
    (ii) Assets (including participations) acquired from the United 
States branch or agency (other than assets required to be sold by 
Federal or State supervisory authorities) and held by its foreign bank 
(including offices thereof located outside the United States), by its 
parent holding company, by non-United States offices or an IBF of an 
affiliated Edge or Agreement Corporation, or by its IBFs.8
---------------------------------------------------------------------------


    8 See footnote 7.
---------------------------------------------------------------------------

    (i)(1) Cash item in process of collection means:
    (i) Checks in the process of collection, drawn on a bank or other 
depository institution that are payable immediately upon presentation in 
the United States, including checks forwarded to a Federal Reserve Bank 
in process of collection and checks on hand that will be presented for 
payment or forwarded for collection on the following business day;
    (ii) Government checks drawn on the Treasury of the United States 
that are in the process of collection; and
    (iii) Such other items in the process of collection, that are 
payable immediately upon presentation in the United States and that are 
customarily cleared or collected by depository institutions as cash 
items, including:
    (A) Drafts payable through another depository institution;
    (B) Matured bonds and coupons (including bonds and coupons that have 
been called and are payable on presentation);
    (C) Food coupons and certificates;
    (D) Postal and other money orders, and traveler's checks;
    (E) Amounts credited to deposit accounts in connection with 
automated payment arrangements where such credits are made one business 
day prior to the scheduled payment date to insure that funds are 
available on the payment date;
    (F) Commodity or bill of lading drafts payable immediately upon 
presentation in the United States;
    (G) Returned items and unposted debits; and
    (H) Broker security drafts.
    (2) Cash item in process of collection does not include items 
handled as noncash collections and credit card sales slips and drafts.
    (j) Net transaction accounts means the total amount of a depository 
institution's transaction accounts less the deductions allowed under the 
provisions of Sec. 204.3.
    (k)(1) Vault cash means United States currency and coin owned and 
held by a depository institution that may, at

[[Page 103]]

any time, be used to satisfy depositors' claims.
    (2) Vault cash includes United States currency and coin in transit 
to a Federal Reserve Bank or a correspondent depository institution for 
which the reporting depository institution has not yet received credit, 
and United States currency and coin in transit from a Federal Reserve 
Bank or a correspondent depository institution when the reporting 
depository institution's account at the Federal Reserve or correspondent 
bank has been charged for such shipment.
    (3) Silver and gold coin and other currency and coin whose 
numismatic or bullion value is substantially in excess of face value is 
not vault cash for purposes of this part.
    (l) Pass through account means a balance maintained by a depository 
institution that is not a member bank, by a U.S. branch or agency of a 
foreign bank, or by an Edge or Agreement Corporation, (1) in an 
institution that maintains required reserve balances at a Federal 
Reserve Bank, (2) in a Federal Home Loan Bank, (3) in the National 
Credit Union Administration Central Liquidity Facility, or (4) in an 
institution that has been authorized by the Board to pass through 
required reserve balances if the institution, Federal Home Loan Bank, or 
National Credit Union Administration Central Liquidity Facility 
maintains the funds in the form of a balance in a Federal Reserve Bank 
of which it is a member or at which it maintains an account in 
accordance with rules and regulations of the Board.
    (m)(1) Depository institution means:
    (i) Any insured bank as defined in section 3 of the Federal Deposit 
Insurance Act (12 U.S.C. 1813(h)) or any bank that is eligible to apply 
to become an insured bank under section 5 of such Act (12 U.S.C. 1815);
    (ii) Any savings bank or mutual savings bank as defined in section 3 
of the Federal Deposit Insurance Act (12 U.S.C. 1813(f), (g));
    (iii) Any insured credit union as defined in section 101 of the 
Federal Credit Union Act (12 U.S.C. 1752(7)) or any credit union that is 
eligible to apply to become an insured credit union under section 201 of 
such Act (12 U.S.C. 1781);
    (iv) Any member as defined in section 2 of the Federal Home Loan 
Bank Act (12 U.S.C. 1422(4)); and
    (v) Any insured institution as defined in section 401 of the 
National Housing Act (12 U.S.C. 1724(a)) or any institution which is 
eligible to apply to become an insured institution under section 403 of 
such Act (12 U.S.C. 1726).
    (2) Depository institution does not include international 
organizations such as the World Bank, the Inter-American Development 
Bank, and the Asian Development Bank.
    (n) Member bank means a depository institution that is a member of 
the Federal Reserve System.
    (o) Foreign bank means any bank or other similar institution 
organized under the laws of any country other than the United States or 
organized under the laws of Puerto Rico, Guam, American Samoa, the 
Virgin Islands, or other territory or possession of the United States.
    (p) De novo depository institution means a depository institution 
that was not engaged in business on July 1, 1979, and is not the 
successor by merger or consolidation to a depository institution that 
was engaged in business prior to the date of merger or consolidation.
    (q) Affiliate includes any corporation, association, or other 
organization:
    (1) Of which a depository institution, directly or indirectly, owns 
or controls either a majority of the voting shares or more than 50 
percent of the numbers 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;
    (2) Of which control is held, directly or indirectly, through stock 
ownership or in any other manner, by the shareholders of a depository 
institution who own or control either a majority of the shares of such 
depository institution or more than 50 percent of the number of shares 
voted for the election of directors of such depository institution at 
the preceding election, or by trustees for the benefit of the 
shareholders of any such depository institution;

[[Page 104]]

    (3) Of which a majority of its directors, trustees, or other persons 
exercising similar functions are directors of any one depository 
institution; or
    (4) Which owns or controls, directly or indirectly, either a 
majority of the shares of capital stock of a depository institution or 
more than 50 percent of the number of shares voted for the election of 
directors, trustees or other persons exercising similar functions of a 
depository institution at the preceding election, or controls in any 
manner the election of a majority of the directors, trustees, or other 
persons exercising similar functions of a depository institution, or for 
the benefit of whose shareholders or members all or substantially all 
the capital stock of a depository institution is held by trustees.
    (r) United States means the States of the United States and the 
District of Columbia.
    (s) United States resident means (1) any individual residing (at the 
time of the transaction) in the United States; (2) any corporation, 
partnership, association or other entity organized in the United States 
(domestic corporation); and (3) any branch or office located in the 
United States of any entity that is not organized in the United States.
    (t) Any deposit that is payable only at an office located outside 
the United States means (1) a deposit of a United States resident 9 
that is in a denomination of $100,000 or more, and as to which the 
depositor is entitled, under the agreement with the institution, to 
demand payment only outside the United States or (2) a deposit of a 
person who is not a United States resident 9 as to which the 
depositor is entitled, under the agreement with the institution, to 
demand payment only outside the United States.
---------------------------------------------------------------------------


    9 A deposit of a foreign branch, office, subsidiary, 
affiliate or other foreign establishment (foreign affiliate) controlled 
by one or more domestic corporations is not regarded as a deposit of a 
United States resident if the funds serve a purpose in connection with 
its foreign or international business or that of other foreign 
affiliates of the controlling domestic corporation(s).
---------------------------------------------------------------------------

    (u) Teller's check means a check drawn by a depository institution 
on another depository institution, a Federal Reserve Bank, or a Federal 
Home Loan Bank, or payable at or through a depository institution, a 
Federal Reserve Bank, or a Federal Home Loan Bank, and which the drawing 
depository institution engages or is obliged to pay upon dishonor.
[45 FR 56018, Aug. 22, 1980, as amended at 46 FR 27092, May 18, 1981; 46 
FR 32428, June 23, 1981; 47 FR 44707, Oct. 12, 1982; 48 FR 28973, June 
24, 1983; 51 FR 9632, 9635, Mar. 20, 1986; 52 FR 47694, 47695, Dec. 16, 
1987; 55 FR 50541, Dec. 7, 1990; 56 FR 15494, Apr. 17, 1991; Reg. D, 57 
FR 38427, Aug. 25, 1992; 57 FR 40598, Sept. 4, 1992; 61 FR 69025, Dec. 
31, 1996]



Sec. 204.3  Computation and maintenance.

    (a) Maintenance and reporting of required reserves. (1) Maintenance. 
A depository institution, a U.S. branch or agency of a foreign bank, and 
an Edge or Agreement corporation shall maintain reserves against its 
deposits and Eurocurrency liabilities in accordance with the procedures 
prescribed in this section and Sec. 204.4 and the ratios prescribed in 
Sec. 204.9. Reserve-deficiency charges shall be assessed for 
deficiencies in required reserves in accordance with the provisions of 
Sec. 204.7. For purposes of this part, the obligations of a majority-
owned (50 percent or more) U.S. subsidiary (except an Edge or Agreement 
corporation) of a depository institution shall be regarded as 
obligations of the parent depository institution.
    (2) Reporting. (i) Every depository institution, U.S. branch or 
agency of a foreign bank, and Edge or Agreement corporation shall file a 
report of deposits (or any other required form or statement) directly 
with the Federal Reserve Bank of its District, regardless of the manner 
in which it chooses to maintain required reserve balances. A foreign 
bank's U.S. branches and agencies and an Edge or Agreement corporation's 
offices operating within the same state and the same Federal Reserve 
District shall prepare and file a report of deposits on an aggregated 
basis.
    (ii) A Federal Reserve Bank shall notify the reporting institution 
of its reserve requirements. Where a pass-through arrangement exists, 
the Reserve Bank will also notify the pass-through correspondent of its 
respondent's required reserve balances.

[[Page 105]]

    (iii) The Board and the Federal Reserve Banks will not hold a pass-
through correspondent responsible for guaranteeing the accuracy of the 
reports of deposits submitted by its respondents.
    (3) Allocation of low reserve tranche and exemption from reserve 
requirements. A depository institution, a foreign bank, or an Edge or 
Agreement corporation shall, if possible, assign the low reserve tranche 
and reserve requirement exemption prescribed in Sec. 204.9(a) to only 
one office or to a group of offices filing a single aggregated report of 
deposits. The amount of the reserve requirement exemption allocated to 
an office or group of offices may not exceed the amount of the low 
reserve tranche allocated to such office or offices. If the low reserve 
tranche or reserve requirement exemption cannot be fully utilized by a 
single office or by a group of offices filing a single report of 
deposits, the unused portion of the tranche or exemption may be assigned 
to other offices or groups of offices of the same institution until the 
amount of the tranche (or net transaction accounts) or exemption (or 
reservable liabilities) is exhausted. The tranche or exemption may be 
reallocated each year concurrent with implementation of the indexed 
tranche and exemption, or, if necessary during the course of the year to 
avoid underutilization of the tranche or exemption, at the beginning of 
a reserve computation period.
    (b) Form and location of reserves. (1) A depository institution, a 
U.S. branch or agency of a foreign bank, and an Edge or Agreement 
corporation shall hold reserves in the form of vault cash, a balance 
maintained directly with the Federal Reserve Bank in the Federal Reserve 
District in which it is located, or, in the case of nonmember 
institutions, with a pass-through correspondent in accordance with 
Sec. 204.3(i).
    (2) (i) For purposes of this section, a depository institution, a 
U.S. branch or agency of a foreign bank, or an Edge or Agreement 
corporation is located in the Federal Reserve District that contains the 
location specified in the institution's charter, organizing certificate, 
or license or, if no such location is specified, the location of its 
head office, unless otherwise determined by the Board under paragraph 
(b)(2)(ii) of this section.
    (ii) If the location specified in paragraph (b)(2)(i) of this 
section, in the Board's judgment, is ambiguous, would impede the ability 
of the Board or the Federal Reserve Banks to perform their functions 
under the Federal Reserve Act, or would impede the ability of the 
institution to operate efficiently, the Board will determine the Federal 
Reserve District in which the institution is located, after consultation 
with the institution and the relevant Federal Reserve Banks. The 
relevant Federal Reserve Banks are the Federal Reserve Bank whose 
District contains the location specified in paragraph (b)(2)(i) of this 
section and the Federal Reserve Bank in whose District the institution 
is proposed to be located. In making this determination, the Board will 
consider any applicable laws, the business needs of the institution, the 
location of the institution's head office, the locations where the 
institution performs its business, and the locations that would allow 
the institution, the Board, and the Federal Reserve Banks to perform 
their functions efficiently and effectively.
    (c) Computation of required reserves for institutions that report on 
a weekly basis. (1) Required reserves are computed on the basis of daily 
average balances of deposits and Eurocurrency liabilities during a 
fourteen-day period ending every second Monday (the ``computation 
period''). Reserve requirements are computed by applying the ratios 
prescribed in Sec. 204.9 to the classes of deposits and Eurocurrency 
liabilities of the institution. The reserve balance that is required to 
be maintained with the Federal Reserve shall be maintained during a 
fourteen-day period (the ``maintenance period'') which begins on a 
Thursday and ends on the second Wednesday thereafter.
    (2) A reserve balance shall be maintained during a given maintenance 
period based on the daily average net transaction accounts held by the 
depository institution during the computation period that began 
immediately prior to the beginning of the maintenance period.
    (3) In determining the reserve balance that is required to be 
maintained

[[Page 106]]

with the Federal Reserve, the daily average vault cash held during the 
computation period that ended 3 days prior to the beginning of the 
maintenance period is deducted from the amount of the institution's 
required reserves.
    (d) Computation of required reserves for institutions that report on 
a quarterly basis. For a depository institution that is permitted to 
report quarterly, required reserves are computed on the basis of the 
depository institution's daily average deposit balances during a seven-
day computation period that begins on the third Tuesday of March, June, 
September, and December. In determining the reserve balance that such a 
depository institution is required to maintain with the Federal Reserve, 
the daily average vault cash held during the computation period is 
deducted from the amount of the institution's required reserves. The 
reserve balance that is required to be maintained with the Federal 
Reserve shall be maintained during a corresponding period that begins on 
the fourth Thursday following the end of the institution's computation 
period and ends on the fourth Wednesday after the close of the 
institution's next computation period.
    (e) Computation of transaction accounts. Overdrafts in demand 
deposit or other transaction accounts are not to be treated as negative 
demand deposits or negative transaction accounts and shall not be netted 
since overdrafts are properly reflected on an institution's books as 
assets. However, where a customer maintains multiple transaction 
accounts with a depository institution, overdrafts in one account 
pursuant to a bona fide cash management arrangement are permitted to be 
netted against balances in other related transaction accounts for 
reserve requirement purposes.
    (f) Deductions allowed in computing reserves. (1) In determining the 
reserve balance required under this part, the amount of cash items in 
process of collection and balances subject to immediate withdrawal due 
from other depository institutions located in the United States 
(including such amounts due from United States branches and agencies of 
foreign banks and Edge and agreement corporations) may be deducted from 
the amount of gross transaction accounts. The amount that may be 
deducted may not exceed the amount of gross transaction accounts.
    (2) United States branches and agencies of a foreign bank may not 
deduct balances due from another United States branch or agency of the 
same foreign bank, and United States offices of an Edge or Agreement 
Corporation may not deduct balances due from another United States 
office of the same Edge Corporation.
    (3) Balances ``due from other depository institutions'' do not 
include balances due from Federal Reserve Banks, pass through accounts, 
or balances (payable in dollars or otherwise) due from banking offices 
located outside the United States. An institution exercising fiduciary 
powers may not include in ``balances due from other depository 
institutions'' amounts of trust funds deposited with other banks and due 
to it as a trustee or other fiduciary.
    (g) Availability of cash items as reserves. Cash items forwarded to 
a Federal Reserve Bank for collection and credit shall not be counted as 
part of the reserve balance to be carried with the Federal Reserve until 
the expiration of the time specified in the appropriate time schedule 
established under Regulation J, ``Collection of Checks and Other Items 
and Transfers of Funds'' (12 CFR part 210). If a depository institution 
draws against items before that time, the charge will be made to its 
reserve account if the balance is sufficient to pay it; any resulting 
impairment of reserve balances will be subject to the penalties provided 
by law and to the reserve deficiency charges provided by this part. 
However, the Federal Reserve Bank may, at its discretion, refuse to 
permit the withdrawal or other use of credit given in a reserve account 
for any time for which the Federal Reserve bank has not received payment 
in actually and finally collected funds.
    (h) Carryover of excesses or deficiencies. Any excess or deficiency 
in a depository institution's account that is held directly or 
indirectly with a Federal Reserve Bank shall be carried over and applied 
to that account in the next maintenance period as specified in this

[[Page 107]]

paragraph. The amount of any such excess or deficiency that is carried 
over shall not exceed the greater of:
    (1) The amount obtained by multiplying .04 times the sum of the 
depository institution's required reserves and the depository 
institution's required clearing balance, if any, and then subtracting 
from this product the depository institution's required charge-free 
band, if any; or
    (2) $50,000, minus the depository institution's required charge-free 
band, if any. Any carryover not offset during the next period may not be 
carried over to subsequent periods.
    (i) Pass-through rules. (1) Procedure. (i) A nonmember depository 
institution, a U.S. branch or agency of a foreign bank, or an Edge or 
Agreement corporation required to maintain reserve balances (respondent) 
may select only one institution to pass through its required reserve 
balances, unless otherwise permitted by Federal Reserve Bank in whose 
district the respondent is located. Eligible institutions through which 
respondent required reserve balances may be passed (correspondents) are 
Federal Home Loan Banks, the National Credit Union Administration 
Central Liquidity Facility, and depository institutions, U.S. branches 
or agencies of foreign banks, and Edge and Agreement corporations that 
maintain required reserve balances at a Federal Reserve office. In 
addition, the Board reserves the right to permit other institutions, on 
a case-by-case basis, to serve as pass-through correspondents. The 
correspondent chosen must subsequently pass through the required reserve 
balances of its respondents directly to a Federal Reserve Bank. The 
correspondent placing funds with a Federal Reserve Bank on behalf of 
respondents will be responsible for account maintenance as described in 
paragraphs (i)(2) and (i)(3) of this section.
    (ii) Respondents or correspondents may institute, terminate, or 
change pass-through arrangements for the maintenance of required reserve 
balances by providing all documentation required for the establishment 
of the new arrangement or termination of the existing arrangement to the 
Federal Reserve Banks involved within the time period provided for such 
a change by those Reserve Banks.
    (2) Account maintenance. A correspondent that passes through 
required reserve balances of respondents shall maintain such balances, 
along with the correspondent's own required reserve balances (if any), 
in a single commingled account at the Federal Reserve Bank in whose 
District the correspondent is located, unless otherwise permitted by the 
Reserve Bank. The balances held by the correspondent in an account at a 
Reserve Bank are the property of the correspondent and represent a 
liability of the Reserve Bank solely to the correspondent, regardless of 
whether the funds represent the reserve balances of another institution 
that have been passed through the correspondent.
    (3) Responsibilities of parties. (i) Each individual depository 
institution, U.S. branch or agency of a foreign bank, or Edge or 
Agreement corporation is responsible for maintaining its required 
reserve balance either directly with a Federal Reserve Bank or through a 
pass-through correspondent.
    (ii) A pass-through correspondent shall be responsible for assuring 
the maintenance of the appropriate aggregate level of its respondents' 
required reserve balances. A Federal Reserve Bank will compare the total 
reserve balance required to be maintained in each account with the total 
actual reserve balance held in such account for purposes of determining 
required reserve deficiencies, imposing or waiving charges for 
deficiencies in required reserves, and for other reserve maintenance 
purposes. A charge for a deficiency in the aggregate level of the 
required reserve balance will be imposed by the Reserve Bank on the 
correspondent maintaining the account.
    (iii) Each correspondent is required to maintain detailed records 
for each of its respondents in a manner that permits Federal Reserve 
Banks to determine whether the respondent has provided a sufficient 
required reserve balance to the correspondent. A correspondent passing 
through a respondent's reserve balance shall maintain records and make 
such reports as the Board or Reserve Bank requires in order to insure 
the correspondent's

[[Page 108]]

compliance with its responsibilities for the maintenance of a 
respondent's reserve balance. Such records shall be available to the 
Reserve Banks as required.
    (iv) The Federal Reserve Bank may terminate any pass-through 
relationship in which the correspondent is deficient in its 
recordkeeping or other responsibilities.
    (v) Interest paid on supplemental reserves (if such reserves are 
required under Sec. 204.6) held by a respondent will be credited to the 
account maintained by the correspondent.
[45 FR 56018, Aug. 22, 1980, as amended at 45 FR 58100, Sept. 2, 1980; 
45 FR 81537, Dec. 11, 1980; 46 FR 32430, June 23, 1981; 47 FR 44707, 
Oct. 12, 1982; 47 FR 55206, Dec. 8, 1982; 48 FR 17335, 17336, Apr. 22, 
1983; 51 FR 9635, Mar. 20, 1986; 55 FR 50541, Dec. 7, 1990; 57 FR 38417, 
38427, Aug. 25, 1992; 61 FR 69025, Dec. 31, 1996; 62 FR 34616, June 27, 
1997; 62 FR 59778, Nov. 5, 1997]



Sec. 204.4  Transitional adjustments in mergers

    In cases of mergers and consolidations of depository institutions, 
the amount of reserves that shall be maintained by the surviving 
institution shall be reduced by an amount determined by multiplying the 
amount by which the required reserves during the computation period 
immediately preceding the date of the merger (computed as if the 
depository institutions had merged) exceeds the sum of the actual 
required reserves of each depository institution during the same 
computation period, times the appropriate percentage as specified in the 
following schedule:

                                                                        
------------------------------------------------------------------------
                                                              Percentage
                                                              applied to
                                                              difference
   Maintenance periods occurring during quarters following    to compute
                   merger or consolidation                     amount to
                                                                  be    
                                                              subtracted
------------------------------------------------------------------------
1...........................................................        87.5
2...........................................................        75.0
3...........................................................        62.5
4...........................................................        50.0
5...........................................................        37.5
6...........................................................        25.0
7...........................................................        12.5
8 and succeeding............................................         0  
------------------------------------------------------------------------

[61 FR 69025, Dec. 31, 1996]



Sec. 204.5  Emergency reserve requirement.

    (a) Finding by Board. The Board may impose, after consulting with 
the appropriate committees of Congress, additional reserve requirements 
on depository institutions at any ratio on any liability upon a finding 
by at least five members of the Board that extraordinary circumstances 
require such action.
    (b) Term. Any action taken under this section shall be valid for a 
period not exceeding 180 days, and may be extended for further periods 
of up to 180 days each by affirmative action of at least five members of 
the Board for each extension.
    (c) Reports to Congress. The Board shall transmit promptly to 
Congress a report of any exercise of its authority under this paragraph 
and the reasons for the exercise of authority.
    (d) Reserve requirements. At present, there are no emergency reserve 
requirements imposed under this section.
[45 FR 56018, Aug. 22, 1980]



Sec. 204.6  Supplemental reserve requirement.

    (a) Finding by Board. Upon the affirmative vote of at least five 
members of the Board and after consultation with the Board of Directors 
of the Federal Deposit Insurance Corporation, the Federal Home Loan Bank 
Board, and the National Credit Union Administration Board, the Board may 
impose a supplemental reserve requirement on every depository 
institution of not more than 4 percent of its total transaction 
accounts. A supplemental reserve requirement may be imposed if:
    (1) The sole purpose of the requirement is to increase the amount of 
reserves maintained to a level essential for the conduct of monetary 
policy;
    (2) The requirement is not imposed for the purpose of reducing the 
cost burdens resulting from the imposition of basic reserve 
requirements;
    (3) Such requirement is not imposed for the purpose of increasing 
the amount of balances needed for clearing purposes; and

[[Page 109]]

    (4) On the date on which supplemental reserve requirements are 
imposed, the total amount of basic reserve requirements is not less than 
the amount of reserves that would be required on transaction accounts 
and nonpersonal time deposits under the initial reserve ratios 
established by the Monetary Control Act of 1980 (Pub. L. 96-221) in 
effect on September 1, 1980.
    (b) Term. (1) If a supplemental reserve requirement has been imposed 
for a period of one year or more, the Board shall review and determine 
the need for continued maintenance of supplemental reserves and shall 
transmit annual reports to the Congress regarding the need for 
continuing such requirement.
    (2) Any supplemental reserve requirement shall terminate at the 
close of the first 90-day period after the requirement is imposed during 
which the average amount of supplemental reserves required are less than 
the amount of reserves which would be required if the ratios in effect 
on September 1, 1980, were applied.
    (c) Earnings Participation Account. A depository institutions's 
supplemental reserve requirement shall be maintained by the Federal 
Reserve Banks in an Earnings Participation Account. Such balances shall 
receive earnings to be paid by the Federal Reserve Banks during each 
calendar quarter at a rate not to exceed the rate earned on the 
securities portfolio of the Federal Reserve System during the previous 
calendar quarter. Additional rules and regulations maybe prescribed by 
the Board concerning the payment of earnings on Earnings Participation 
Accounts by Federal Reserve Banks.
    (d) Report to Congress. The Board shall transmit promptly to the 
Congress a report stating the basis for exercising its authority to 
require a supplemental reserve under this section.
    (e) Reserve requirements. At present, there are no supplemental 
reserve requirements imposed under this section.
[45 FR 56018, Aug. 22, 1980, as amended at 45 FR 81537, Dec. 11, 1980]



Sec. 204.7  Penalties.

    (a) Charges for deficiencies--(1) Assessment of charges. 
Deficiencies in a depository institution's required reserve balance, 
after application of the carryover provided in Sec. 204.3(h) are subject 
to reserve deficiency charges. Federal Reserve Banks are authorized to 
assess charges for deficiencies in required reserves at a rate of 2 
percent per year above the lowest rate in effect for borrowings from the 
Federal Reserve Bank on the first day of the calendar month in which the 
deficiencies occurred. Charges shall be assessed on the basis of daily 
average deficiencies during each maintenance period. Reserve Banks may, 
as an alternative to levying monetary charges, after consideration of 
the circumstances involved, permit a depository institution to eliminate 
deficiencies in its required reserve balance by maintaining additional 
reserves during subsequent reserve maintenance periods.
    (2) Waivers. (i) Reserve Banks may waive the charges for reserve 
deficiencies except when the deficiency arises out of a depository 
institution's gross negligence or conduct that is inconsistent with the 
principles and purposes of reserve requirements. Each Reserve Bank has 
adopted guidelines that provide for waivers of small charges. The 
guidelines also provide for waiving the charge once during a two-year 
period for any deficiency that does not exceed a certain percentage of 
the depository institution's required reserves. Decisions by Reserve 
Banks to waive charges in other situations are based on an evaluation of 
the circumstances in each individual case and the depository 
institution's reserve maintenance record. If a depository institution 
has demonstrated a lack of due regard for the proper maintenance of 
required reserves, the Reserve Bank may decline to exercise the waiver 
privilege and assess all charges regardless of amount or reason for the 
deficiency.
    (ii) In individual cases, where a federal supervisory authority 
waives a liquidity requirement, or waives the penalty for failing to 
satisfy a liquidity requirement, the Reserve Bank in the District where 
the involved depository institution is located shall waive the reserve 
requirement imposed under this part for such depository institution when 
requested by the federal supervisory authority involved.

[[Page 110]]

    (b) Penalties for Violations. Violations of this part may be subject 
to assessment of civil money penalties by the Board under authority of 
section 19(1) of the Federal Reserve Act (12 U.S.C 505) as implemented 
in 12 CFR part 263. In addition, the Board and any other Federal 
financial institution supervisory authority may enforce this part with 
respect to depository institutions subject to their jurisdiction under 
authority conferred by law to undertake cease and desist proceedings.
[44 FR 56018, Aug. 22, 1980, as amended at 56 FR 15495, Apr. 17, 1991; 
61 FR 69025, Dec. 31, 1996]



Sec. 204.8  International banking facilities.

    (a) Definitions. For purposes of this part, the following 
definitions apply:
    (1) International banking facility or IBF means a set of asset and 
liability accounts segregated on the books and records of a depository 
institution, United States branch or agency of a foreign bank, or an 
Edge or Agreement Corporation that includes only international banking 
facility time deposits and international banking facility extensions of 
credit.
    (2) International banking facility time deposit or IBF time deposit 
means a deposit, placement, borrowing or similar obligation represented 
by a promissory note, acknowledgment of advance, or similar instrument 
that is not issued in negotiable or bearer form, and
    (i) (A) That must remain on deposit at the IBF at least overnight; 
and
    (B) That is issued to
    (1) Any office located outside the United States of another 
depository institution organized under the laws of the United States or 
of an Edge or Agreement Corporation;
    (2) Any office located outside the United States of a foreign bank;
    (3) A United States office or a non-United States office of the 
entity establishing the IBF;
    (4) Another IBF; or
    (5) A foreign national government, or an agency or instrumentality 
thereof,\10\ engaged principally in activities which are ordinarily 
performed in the United States by governmental entities; an 
international entity of which the United States is a member; or any 
other foreign international or supranational entity specifically 
designated by the Board;\11\ or
---------------------------------------------------------------------------


    \10\ Other than states, provinces, municipalities, or other regional 
or local governmental units or agencies or instrumentalities thereof.

    \11\ The designated entities are specified in 12 CFR 204.125.
---------------------------------------------------------------------------

    (ii) (A) That is payable
    (1) On a specified date not less than two business days after the 
date of deposit;
    (2) Upon expiration of a specified period of time not less than two 
business days after the date of deposit; or
    (3) Upon written notice that actually is required to be given by the 
depositor not less than two business days prior to the date of 
withdrawal;
    (B) That represents funds deposited to the credit of a non-United 
States resident or a foreign branch, office, subsidiary, affiliate, or 
other foreign establishment (foreign affiliate) controlled by one or 
more domestic corporations provided that such funds are used only to 
support the operations outside the United States of the depositor or of 
its affiliates located outside the United States; and
    (C) That is maintained under an agreement or arrangement under which 
no deposit or withdrawal of less than $100,000 is permitted, except that 
a withdrawal of less than $100,000 is permitted if such withdrawal 
closes an account.
    (3) International banking facility extension of credit or IBF loan 
means any transaction where an IBF supplies funds by making a loan, or 
placing funds in a deposit account. Such transactions may be represented 
by a promissory note, security, acknowledgment of advance, due bill, 
repurchase agreement, or any other form of credit transaction. Such 
credit may be extended only to:
    (i) Any office located outside the United States of another 
depository institution organized under the laws of the United States or 
of an Edge or Agreement Corporation;
    (ii) Any office located outside the United States of a foreign bank;

[[Page 111]]

    (iii) A United States or a non-United States office of the 
institution establishing the IBF;
    (iv) Another IBF;
    (v) A foreign national government, or an agency or instrumentality 
thereof,\12\ engaged principally in activities which are ordinarily 
performed in the United States by governmental entities; an 
international entity of which the United States is a member; or any 
other foreign international or supranational entity specifically 
designated by the Board; \13\ or
---------------------------------------------------------------------------


    \12\ See footnote 10.

    \13\ See footnote 11.
---------------------------------------------------------------------------

    (vi) A non-United States resident or a foreign branch, office, 
subsidiary, affiliate or other foreign establishment (foreign affiliate) 
controlled by one or more domestic corporations provided that the funds 
are used only to finance the operations outside the United States of the 
borrower or of its affiliates located outside the United States.
    (b) Acknowledgment of use of IBF deposits and extensions of credit. 
An IBF shall provide written notice to each of its customers (other than 
those specified in Sec. 204.8(a)(2)(i)(B) and Sec. 204.8(a)(3) (i) 
through (v)) at the time a deposit relationship or a credit relationship 
is first established that it is the policy of the Board of Governors of 
the Federal Reserve System that deposits received by international 
banking facilities may be used only to support the depositor's 
operations outside the United States as specified in 
Sec. 204.8(a)(2)(ii)(B) and that extensions of credit by IBFs may be 
used only to finance operations outside of the United States as 
specified in Sec. 204.8(a)(3)(vi). In the case of loans to or deposits 
from foreign affiliates of U.S. residents, receipt of such notice must 
be acknowledged in writing whenever a deposit or credit relationship is 
first established with the IBF.
    (c) Exemption from reserve requirements. An institution that is 
subject to the reserve requirements of this part is not required to 
maintain reserves against its IBF time deposits or IBF loans. Deposit-
taking activities of IBFs are limited to accepting only IBF time 
deposits and lending activities of IBFs are restricted to making only 
IBF loans.
    (d) Establishment of an international banking facility. A depository 
institution, an Edge or Agreement Corporation or a United States branch 
or agency of a foreign bank may establish an IBF in any location where 
it is legally authorized to engage in IBF business. However, only one 
IBF may be established for each reporting entity that is required to 
submit a Report of Transaction Accounts, Other Deposits and Vault Cash 
(Form FR 2900).
    (e) Notification to Federal Reserve. At least fourteen days prior to 
the first reserve computation period that an institution intends to 
establish an IBF it shall notify the Federal Reserve Bank of the 
district in which it is located of its intent. Such notification shall 
include a statement of intention by the institution that it will comply 
with the rules of this part concerning IBFs, including restrictions on 
sources and uses of funds, and recordkeeping and accounting 
requirements. Failure to comply with the requirements of this part shall 
subject the institution to reserve requirements under this part or 
result in the revocation of the institution's ability to operate an IBF.
    (f) Recordkeeping requirements. A depository institution shall 
segregate on its books and records the asset and liability accounts of 
its IBF and submit reports concerning the operations of its IBF as 
required by the Board.
[46 FR 32429, June 23, 1981, as amended at 51 FR 9636, Mar. 20, 1986; 56 
FR 15495, Apr. 17, 1991; 61 FR 69025, Dec. 31, 1996]



Sec. 204.9  Reserve requirement ratios.

    (a) Reserve percentages. The following reserve ratios are prescribed 
for all depository institutions, Edge and Agreement corporations, and 
United States branches and agencies of foreign banks:

                                                                        
------------------------------------------------------------------------
                 Category                      Reserve requirement \1\  
------------------------------------------------------------------------
Net transaction accounts:                                               
  $0 to $47.8 million.....................  3 percent of amount.        
  over $47.8 million......................  $1,434,000 plus 10 percent  
                                             of amount over $47.8       
                                             million                    
  Nonpersonal time deposits...............  0 percent.                  
  Eurocurrency liabilities................  0 percent.                  
------------------------------------------------------------------------
\1\ Before deducting the adjustment to be made by the paragraph (b) of  
  this section.                                                         

[[Page 112]]

                                                                        

    (b) Exemption from reserve requirements. Each depository 
institution, Edge or agreement corporation, and U.S. branch or agency of 
a foreign bank is subject to a zero percent reserve requirement on an 
amount of its transaction accounts subject to the low reserve tranche in 
paragraph (a) of this section not in excess of $4.7 million determined 
in accordance with Sec. 204.3(a)(3).
[Reg. D, 62 FR 61622, Nov. 19, 1997]

                             Interpretations



Sec. 204.121  Bankers' banks.

    (a) (1) The Federal Reserve Act, as amended by the Monetary Control 
Act of 1980 (title I of Pub. L. 96-221), imposes Federal reserve 
requirements on depository institutions that maintain transaction 
accounts or nonpersonal time deposits. Under section 19(b)(9), however, 
a depository institution is not required to maintain reserves if it:
    (i) Is organized solely to do business with other financial 
institutions;
    (ii) Is owned primarily by the financial institutions with which it 
does business; and
    (iii) Does not do business with the general public.

Depository institutions that satisfy all of these requirements are 
regarded as bankers' banks.
    (2) In its application of these requirements to specific 
institutions, the Board will use the following standards:
    (i) A depository institution may be regarded as organized solely to 
do business with other depository institutions even if, as an incidental 
part to its activities, it does business to a limited extent with 
entities other than depository institutions. The extent to which the 
institution may do business with other entities and continue to be 
regarded as a bankers' bank is specified in paragraph (a)(2)(iii) of 
this section.
    (ii) A depository institution will be regarded as being owned 
primarily by the institutions with which it does business if 75 per cent 
or more of its capital is owned by other depository institutions. The 75 
per cent or more ownership rule applies regardless of the type of 
depository institution.
    (iii) A depository institution will not be regarded as doing 
business with the general public if it meets two conditions. First, the 
range of customers with which the institution does business must be 
limited to depository institutions, including subsidiaries or 
organizations owned by depository institutions; directors, officers or 
employees of the same or other depository institutions; individuals 
whose accounts are acquired at the request of the institution's 
supervisory authority due to the actual or impending failure of another 
depository institution; share insurance funds; and depository 
institution trade associations. Second, the extent to which the 
depository institution makes loans to, or investments in, the above 
entities (other than depository institutions) cannot exceed 10 per cent 
of total assets, and the extent to which it receives deposits (or shares 
if the institution does not receive deposits) from or issues other 
liabilities to the above entities (other than depository institutions) 
cannot exceed 10 per cent of total liabilities (or net worth if the 
institution does not receive deposits).

If a depository institution is unable to meet all of these requirements 
on a continuing basis, it will not be regarded as a bankers' bank and 
will be required to satisfy Federal reserve requirements on all of its 
transaction accounts and nonpersonal time deposits.
    (b) (1) Section 19(c)(1) of the Federal Reserve Act, as amended by 
the Monetary Control Act of 1980 (title I of Pub. L. 96-221) provides 
that Federal reserve requirements may be satisfied by the maintenance of 
vault cash or balances in a Federal Reserve Bank. Depository 
institutions that are not members of the Federal Reserve System may also 
satisfy reserve requirements by maintaining a balance in another 
depository institution that maintains required reserve balances at a 
Federal Reserve Bank, in a Federal Home Loan Bank, or in the National 
Credit Union Administration Central Liquidity Facility if the balances 
maintained by such institutions are subsequently passed through to the 
Federal Reserve Bank.
    (2) On August 27, 1980, the Board announced the procedures that will 
apply to such pass-through arrangements (45 FR 58099). Section 
204.3(i)(1) provides that the Board may permit, on a case-

[[Page 113]]

by-case basis, depository institutions that are not themselves required 
to maintain reserves (bankers' banks) to act as pass-through 
correspondents if certain criteria are satisfied. The Board has 
determined that a bankers' bank may act as a pass-through correspondent 
if it enters into an agreement with the Federal Reserve to accept 
responsibility for the maintenance of pass-through reserve accounts in 
accordance with Regulation D (12 CFR 204.3(i)) and if the Federal 
Reserve is satisfied that the quality of management and financial 
resources of the institution are adequate in order to enable the 
institution to serve as a pass-through correspondent in accordance with 
Regulation D. Satisfaction of these criteria will assure that pass-
through arrangements are maintained properly without additional 
financial risk to the Federal Reserve.
    (3) In order to determine uniformly the adequacy of managerial and 
financial resources, the Board will consult with the Federal supervisor 
for the type of institution under consideration. Because the Board does 
not possess direct experience with supervising depository institutions 
other than commerical banks, and does not intend to involve itself in 
the direct supervision of such institutions, it will request the 
National Credit Union Administration to review requests from credit 
unions that qualify as bankers' banks and the Federal Home Loan Bank 
Board to review requests from savings and loan associations that qualify 
as bankers' banks, regardless of charter or insurance status. (The 
Board, itself, will consider requests from all commercial banks that 
qualify as bankers' banks.) If the Federal supervisor does not find the 
institution's managerial or financial resources to be adequate, the 
Board will not permit the institution to act as a pass-through 
correspondent. In order to assure the continued adequacy of managerial 
and financial resources, it is anticipated that the appropriate Federal 
supervisor will, on a periodic basis, review and evaluate the managerial 
and financial resources of the institution in order to determine whether 
it should continue to be permitted to act as a pass-through 
correspondent. It is anticipated that, with respect to state chartered 
institutions, the Federal supervisor may discuss the request with the 
institute State supervisor. The Board believes that this procedure will 
promote uniformity of treatment for all types of bankers' banks, and 
provide consistent advice concerning managerial ability and financial 
strength from supervisory authorities that are in a better position to 
evaluate these criteria for depository institutions that are not 
commerical banks.
    (4) Requests for a determination as to whether a depository 
institution will be regarded as a bankers' bank for purposes of the 
Federal Reserve Act or for permission to act as a pass-through 
correspondent may be addressed to the Federal Reserve Bank in whose 
District the main office of the despository institution is located or to 
the Secretary, Board of Governors of the Federal Reserve System, 
Washington, DC 20551. The Board will act promptly on all requests 
received directly or through Federal Reserve Banks.
[45 FR 69879, Oct. 22, 1980]



Sec. 204.122  Secondary market activities of international banking facilities.

    (a) Questions have been raised concerning the extent to which 
international banking facilities may purchase (or sell) IBF-eligible 
assets such as loans (including loan participations), securities, CDs, 
and bankers' acceptances from (or to) third parties. Under the Board's 
regulations, as specified in Sec. 204.8 of Regulation D, IBFs are 
limited, with respect to making loans and accepting deposits, to dealing 
only with certain customers, such as other IBFs and foreign offices of 
other organizations, and with the entity establishing the IBF. In 
addition, an IBF may extend credit to a nonbank customer only to finance 
the borrower's non-U.S. operations and may accept deposits from a 
nonbank customer that are used only to support the depositor's non-U.S. 
business.
    (b) Consistent with the Board's intent, IBFs may purchase IBF-
eligible assets \1\ from, or sell such assets to, any

[[Page 114]]

domestic or foreign customer provided that the transactions are at arm's 
length without recourse. However, an IBF of a U.S. depository 
institution may not purchase assets from, or sell such assets to, any 
U.S. affiliate of the institution establishing the IBF; an IBF of an 
Edge or Agreement corporation may not purchase assets from, or sell 
assets to, any U.S. affiliate of the Edge or Agreement corporation or to 
U.S. branches of the Edge or Agreement corporation or to U.S. branches 
of the Edge or Agreement corporation other than the branch \2\ 
establishing the IBF; and an IBF of a U.S. branch or agency of a foreign 
bank may not purchase assets from, or sell assets to any U.S. affiliates 
of the foreign bank or to any other U.S. branch or agency of the same 
foreign bank.\2\ (This would not pevent an IBF from purchasing (or 
selling) assets directly from (or to) any IBF, including an IBF of an 
affiliate, or to the institution establishing the IBF; such purchases 
from the institution establishing the IBF would continue to be subject 
to Eurocurrency reserve requirements except during the initial four-week 
transition period.) Since repurchase agreements are regarded as loans, 
transactions involving repurchase agreements are permitted only with 
customers who are otherwise eligible to deal with IBFs, as specified in 
Regulation D.
---------------------------------------------------------------------------


    \1\ In order for an asset to be eligible to be held by an IBF, the 
obligor or issuer of the instrument, or in the case of bankers' 
acceptances, the customer and any endorser or acceptor, must be an IBF-
eligible customer.

    \2\ Branches of Edge or Agreement corporations and agencies and 
branches of foreign banks that file a consolidated report for reserve 
requirements purposes (FR 2900) are considered to be the establishing 
entity of an IBF.
---------------------------------------------------------------------------

    (c) In the case of purchases of assets, in order to determine that 
the Board's use-of-proceeds requirement has been met, it is necessary 
for the IBF (1) to ascertain that the applicable IBF notices and 
acknowledgments have been provided, or (2) in the case of loans or 
securities, to review the documentation underlying the loan or security, 
or accompanying the security (e.g., the prospectus or offering 
statement), to determine that the proceeds are being used only to 
finance the obligor's operations outside the U.S., or (3) in the case of 
loans, to obtain a statement from either the seller or borrower that the 
proceeds are being used only to finance operations outside the U.S., or 
in the case of securities, to obtain such a statement from the obligor, 
or (4) in the case of bankers' acceptances, to review the underlying 
documentation to determine that the proceeds are being used only to 
finance the parties' operations outside the United States.
    (d) Under the Board's regulations, IBFs are not permitted to issue 
negotiable Euro-CDs, bankers' acceptances, or similar instruments. 
Accordingly, consistent with the Board's intent in this area, IBFs may 
sell such instruments issued by third parties that qualify as IBF-
eligible assets provided that the IBF, its establishing institution and 
any affiliate of the institution establishing the IBF do not endorse, 
accept, or otherwise guarantee the instrument.
[46 FR 62812, Dec. 29, 1981, as amended at 52 FR 47694, Dec. 16, 1987]



Sec. 204.123  Sale of Federal funds by investment companies or trusts in which the entire beneficial interest is held exclusively by depository institutions.

    (a) The Federal Reserve Act, as amended by the Monetary Control Act 
of 1980 (Title I of Pub. L. 96-221) imposes Federal Reserve requirements 
on transaction accounts and nonpersonnel time deposits held by 
depository institutions. The Board is empowered under the Act to 
determine what types of obligations shall be deemed a deposit. 
Regulation D--Reserve Requirements of Depository Institutions exempts 
from the definition of deposit those obligations of a depository 
institution that are issued or undertaken and held for the account of a 
domestic office of another depository institution (12 CFR 
204.2(a)(1)(vii)(A)(1)). These exemptions from the definition of deposit 
are known collectively as the Federal funds or interbank exemption.
    (b) Title IV of the Depository Institutions Deregulation and 
Monetary Control Act of 1980 authorizes Federal savings and loan 
associations to invest in open-ended management investment companies 
provided the funds' investment portfolios are limited to the

[[Page 115]]

types of investments that a Federal savings and loan association could 
hold without limit as to percentage of assets (12 U.S.C. 1464(c)(1)(Q)). 
Such investments include mortgages, U.S. Government and agency 
securities, securities of states and political subdivisions, sales of 
Federal funds and deposits held at banks insured by the Federal Deposit 
Insurance Corporation. The Federal Credit Union Act authorizes Federal 
credit unions to aggregate their funds in trusts provided the trust is 
limited to such investments that Federal credit unions could otherwise 
make. Such investments include loans to credit union members, 
obligations of the U.S. government or secured by the U.S. government, 
loans to other credit unions, shares or accounts held at savings and 
loan associations or mutual savings banks insured by FSLIC or FDIC, 
sales of Federal funds and shares of any central credit union whose 
investments are specifically authorized by the board of directors of the 
Federal credit union making the investment (12 U.S.C. 1757(7)).
    (c) The Board has considered whether an investment company or trust 
whose entire beneficial interest is held by depository institutions, as 
defined in Regulation D, would be eligible for the Federal funds 
exemption from Reserve requirements and interest rate limitations. The 
Board has determined that such investment companies or trusts are 
eligible to participate in the Federal funds market because, in effect, 
they act as mere conduits for the holders of their beneficial interest. 
To be regarded by the Board as acting as a conduit and, thus, be 
eligible for participation in the Federal funds market, an investment 
company or trust must meet each of the following conditions:
    (1) The entire beneficial interest in the investment company or 
trust must be held by depository institutions, as defined in Regulation 
D. These institutions presently may participate directly in the Federal 
funds market. If the entire beneficial interest in the investment 
company or trust is held only by depository institutions, the Board will 
regard the investment company or trust as a mere conduit for the holders 
of its beneficial interest.
    (2) The assets of the investment company or trust must be limited to 
investments that all of the holders of the beneficial interest could 
make directly without limit.
    (3) Holders of the beneficial interest in the investment company or 
trust must not be allowed to make third party payments from their 
accounts with the investment company or trust. The Board does not regard 
an investment company or trust that offers third party payment 
capabilities or other similar services which actively transform the 
nature of the funds passing between the holders of the beneficial 
interest and the Federal funds market as mere conduits.

The Board expects that the above conditions will be included in 
materials filed by an investment company or trust with the appropriate 
regulatory agencies.

    (d) The Board believes that permitting sales of Federal funds by 
investment companies or trusts whose beneficial interests are held 
exclusively by depository institutions, that invest solely in assets 
that the holders of their beneficial interests can otherwise invest in 
without limit, and do not provide third party payment capabilities offer 
the potential for an increased yield for thrifts. This is consistent 
with Congressional intent to provide thrifts with convenient liquidity 
vehicles.
[47 FR 8987, Mar. 3, 1982, as amended at 52 FR 47695, Dec. 16, 1987]



Sec. 204.124  Repurchase agreement involving shares of a money market mutual fund whose portfolio consists wholly of United States Treasury and Federal agency 
          securities.

    (a) The Federal Reserve Act, as amended by the Monetary Control Act 
of 1980 (title I of Pub. L. 96-221) imposes Federal reserve requirements 
on transaction accounts and nonpersonal time deposits held by depository 
institutions. The Board is empowered under the Act to determine what 
types of obligations shall be deemed a deposit (12 U.S.C. 461). 
Regulation D--Reserve Requirements of Depository Institutions exempts 
from the definition of deposit

[[Page 116]]

those obligations of a depository institution that arise from a transfer 
of direct obligations of, or obligations that are fully guaranteed as to 
principal and interest by, the United States government or any agency 
thereof that the depository institution is obligated to repurchase (12 
CFR 204.2(a)(1)(vii)(B)).
    (b) The National Bank Act provides that a national bank may purchase 
for its own account investment securities under limitations and 
restrictions as the Comptroller may prescribe (12 U.S.C. 24, para.7). 
The statute defines investment securities to mean marketable obligations 
evidencing indebtedness of any person in the form of bonds, notes, and 
debentures. The Act further limits a national bank's holdings of any one 
security to no more than an amount equal to 10 percent of the bank's 
capital stock and surplus. However, these limitations do not apply to 
obligations issued by the United States, general obligations of any 
state and certain obligations of Federal agencies. In addition, 
generally a national bank is not permitted to purchase for its own 
account stock of any corporation. These restrictions also apply to state 
member banks (12 U.S.C. 335).
    (c) The Comptroller of the Currency has permitted national banks to 
purchase for their own accounts shares of open-end investment companies 
that are purchased and sold at par (i.e., money market mutual funds) 
provided the portfolios of such companies consist solely of securities 
that a national bank may purchase directly (Banking Bulletin B-83-58). 
The Board of Governors has permitted state member banks to purchase, to 
the extent permitted under applicable state law, shares of money market 
mutual funds (MMMF) whose portfolios consist solely of securities that 
the state member bank may purchase directly (12 CFR 208.123).
    (d) The Board has determined that an obligation arising from a 
repurchase agreement involving shares of a MMMF whose portfolio consists 
wholly of securities of the United States government or any agency 
thereof \1\ would not be a deposit for purposes of Regulations D and Q. 
The Board believes that a repurchase agreement involving shares of such 
a MMMF is the functional equivalent of a repurchase agreement directly 
involving United States government or agency obligations. A purchaser of 
shares of a MMMF obtains an interest in a pro rata portion of the assets 
that comprise the MMMF's portfolio. Accordingly, regardless of whether 
the repurchase agreement involves United States government or agency 
obligations directly or shares in a MMMF whose portfolio consists 
entirely of United States government or agency obligations, an equitable 
and undivided interest in United States and agency government 
obligations is being transferred. Moreover, the Board believes that this 
interpretation will further the purpose of the exemption in Regulations 
D and Q for repurchase agreements involving United States government or 
Federal obligations by enhancing the market for such obligations.
---------------------------------------------------------------------------


    \1\ The term United States government or any agency thereof as used 
herein shall have the same meaning as in Sec. 204.2(a)(1)(vii)(B) of 
Regulation D, 12 CFR 204.2(a)(1)(vii)(B).
---------------------------------------------------------------------------

[50 FR 13011, Apr. 2, 1985, as amended at 52 FR 47695, Dec. 16, 1987]



Sec. 204.125  Foreign, international, and supranational entities referred to in Secs. 204.2(c)(1)(iv)(E) and 204.8(a)(2)(i)(B)(5).

    The entities referred to in Secs. 204.2(c)(1)(E) and 
204.8(a)(2)(i)(B)(5) are:

                                 Europe

Bank for International Settlements.
European Atomic Energy Community.
European Coal and Steel Community.
The European Communities.
European Development Fund.
European Economic Community.
European Free Trade Association.
European Fund.
European Investment Bank.

                              Latin America

Andean Development Corporation.
Andean Subregional Group.
Caribbean Development Bank.
Caribbean Free Trade Association
Caribbean Regional Development Agency.
Central American Bank for Economic Integration.

[[Page 117]]

The Central American Institute for Industrial Research and Technology.
Central American Monetary Stabilization Fund.
East Caribbean Common Market.
Latin American Free Trade Association.
Organization for Central American States.
Permanent Secretariat of the Central American General Treaty of Economic 
Integration.
River Plate Basin Commission.

                                 Africa

African Development Bank.
Banque Centrale des Etats de l'Afrique Equatorial et du Cameroun.
Banque Centrale des Etats d`Afrique del'Ouest.
Conseil de l'Entente.
East African Community.
Organisation Commune Africaine et Malagache.
Organization of African Unity.
Union des Etats de l'Afrique Centrale.
Union Douaniere et Economique de l'Afrique Centrale.
Union Douaniere des Etats de l`Afrique de l'Ouest.

                                  Asia

Asia and Pacific Council.
Association of Southeast Asian Nations.
Bank of Taiwan.
Korea Exchange Bank.

                               Middle East

Central Treaty Organization.
Regional Cooperation for Development.
[52 FR 47695, Dec. 16, 1987, as amended at 56 FR 15495, Apr. 17, 1991]



Sec. 204.126  Depository institution participation in ``Federal funds'' market.

    (a) Under Sec. 204.2(a)(1)(vii)(A), there is an exemption from 
Regulation D for member bank obligations in nondeposit form to another 
bank. To assure the effectiveness of the limitations on persons who sell 
Federal funds to depository institutions, Regulation D applies to 
nondocumentary obligations undertaken by a depository institution to 
obtain funds for use in its banking business, as well as to documentary 
obligations. Under Sec. 204.2(a)(1)(vii) of Regulation D, a depository 
institution's liability under informal arrangements as well as those 
formally embodied in a document are within the coverage of Regulation D.
    (b) The exemption in Sec. 204.2(a)(1)(vii)(A) applies to obligations 
owed by a depository institution to a domestic office of any entity 
listed in that section (the exempt institutions). The exempt 
institutions explicitly include another depository institution, foreign 
bank, Edge or agreement corporation, New York Investment (article XII) 
Company, the Export-Import Bank of the United States, Minbanc Capital 
Corp., and certain other credit sources. The term exempt institutions 
also includes subsidiaries of depository institutions:
    (1) That engage in businesses in which their parents are authorized 
to engage; or
    (2) The stock of which by statute is explicitly eligible for 
purchase by national banks.
    (c) To assure that this exemption for liabilities to exempt 
institutions is not used as a means by which nondepository institutions 
may arrange through an exempt institution to sell Federal funds to a 
depository institution, obligations within the exemption must be issued 
to an exempt institution for its own account. In view of this 
requirement, a depository institution that purchases Federal funds 
should ascertain the character (not necessarily the identity) of the 
actual seller in order to justify classification of its liability on the 
transaction as Federal funds purchased rather than as a deposit. Any 
exempt institution that has given general assurance to the purchasing 
depository institution that sales by it of Federal funds ordinarily will 
be for its own account and thereafter executes such transactions for the 
account of others, should disclose the nature of the actual lender with 
respect to each such transaction. If it fails to do so, the depository 
institution would be deemed by the Board as indirectly violating section 
19 of the Federal Reserve Act and Regulation D.
[52 FR 47695, Dec. 16, 1987]



Sec. 204.127  Nondepository participation in ``Federal funds'' market.

    (a) The Board has considered whether the use of interdepository 
institution loan participations (IDLPs) which involve participation by 
third parties other than depository institutions in Federal funds 
transactions, comes within the exemption from deposit classification

[[Page 118]]

for certain obligations owed by a depository institution to an 
institution exempt in Sec. 204.2(a)(1)(vii)(A) of Regulation D. An IDLP 
transaction is one through which an institution that has sold Federal 
funds to a depository institution, subsequently sells or participates 
out that obligation to a nondepository third party without notifying the 
obligated institution.
    (b) The Board's interpretation regarding Federal funds transactions 
(12 CFR 204.126) clarified that a depository institutions's liability 
must be issued to an exempt institution described in 
Sec. 204.2(a)(1)(vii)(A) of Regulation D for its own account in order to 
come within the nondeposit exemption for interdepository liabilities. 
The Board regards transactions which result in third parties gaining 
access to the Federal funds market as contrary to the exemption 
contained in Sec. 204.2(a)(1)(vii)(A) of Regulation D regardless of 
whether the nondepository institution third party is a party to the 
initial transaction or thereafter becomes a participant in the 
transaction through purchase of all or part of the obligation held by 
the selling depository institution.
    (c) The Board regards the notice requirements set out in 12 CFR 
204.126 as applicable to IDLP-type transactions as described herein so 
that a depository institution selling Federal funds must provide to the 
purchaser--
    (1) Notice of its intention, at the time of the initial transaction, 
to sell or participate out its loan contract to a nondepository third 
party, and
    (2) Full and prompt notice whenever it (the selling depository 
institution) subsequently sells or participates out its loan contract to 
a non-depository third party.
[52 FR 47695, Dec. 16, 1987]



Sec. 204.128  Deposits at foreign branches guaranteed by domestic office of a depository institution.

    (a) In accepting deposits at branches abroad, some depository 
institutions may enter into agreements from time to time with depositors 
that in effect guarantee payment of such deposits in the United States 
if the foreign branch is precluded from making payment. The question has 
arisen whether such deposits are subject to Regulation D, and this 
interpretation is intended as clarification.
    (b) Section 19 of the Federal Reserve Act which establishes reserve 
requirements does not apply to deposits of a depository institution 
``payable only at an office thereof located outside of the States of the 
United States and the District of Columbia'' (12 U.S.C. 371a; 12 CFR 
204.1(c)(5)). The Board rule in 1918 that the requirements of section 19 
as to reserves to be carried by member banks do not apply to foreign 
branches (1918 Fed. Res. Bull. 1123). The Board has also defined the 
phrase Any deposit that is payable only at an office located outside the 
United States, in Sec. 204.2(t) of Regulation D, 12 CFR 204.2(t).
    (c) The Board believes that this exemption from reserve requirements 
should be limited to deposits in foreign branches as to which the 
depositor is entitled, under his agreement with the depository 
institution, to demand payment only outside the United States, 
regardless of special circumstances. The exemption is intended 
principally to enable foreign branches of U.S. depository institutions 
to compete on a more nearly equal basis with banks in foreign countries 
in accordance with the laws and regulations of those countries. A 
customer who makes a deposit that is payable solely at a foreign branch 
of the depository institution assumes whatever risk may exist that the 
foreign country in which a branch is located might impose restrictions 
on withdrawals. When payment of a deposit in a foreign branch is 
guaranteed by a promise of payment at an office in the United States if 
not paid at the foreign office, the depositor no longer assumes this 
risk but enjoys substantially the same rights as if the deposit had been 
made in a U.S. office of the depository institution. To assure the 
effectiveness of Regulation D and to prevent evasions thereof, the Board 
considers that such guaranteed foreign-branch deposits must be subject 
to that regulation.
    (d) Accordingly, a deposit in a foreign branch of a depository 
institution that is guaranteed by a domestic office is subject to the 
reserve requirements of Regulation D the same as if the deposit had been 
made in the domestic office.

[[Page 119]]

This interpretation is not designed in any respect to prevent the head 
office of a U.S. bank from repaying borrowings from, making advances to, 
or supplying capital funds to its foreign branches, subject to 
Eurocurrency liability reserve requirements.
[52 FR 47696, Dec. 16, 1987]



Sec. 204.130  Eligibility for NOW accounts.

    (a) Summary. In response to many requests for rulings, the Board has 
determined to clarify the types of entities that may maintain NOW 
accounts at member banks.
    (b) Individuals. (1) Any individual may maintain a NOW account 
regardless of the purposes that the funds will serve. Thus, deposits of 
an individual used in his or her business including a sole proprietor or 
an individual doing business under a trade name is eligible to maintain 
a NOW account in the individual's name or in the ``DBA'' name. However, 
other entities organized or operated to make a profit such as 
corporations, partnerships, associations, business trusts, or other 
organizations may not maintain NOW accounts.
    (2) Pension funds, escrow accounts, security deposits, and other 
funds held under various agency agreements may also be classified as NOW 
accounts if the entire beneficial interest is held by individuals or 
other entities eligible to maintain NOW accounts directly. The Board 
believes that these accounts are similar in nature to trust accounts and 
should be accorded identical treatment. Therefore, such funds may be 
regarded as eligible for classification as NOW accounts.
    (c) Nonprofit organizations. (1) A nonprofit organization that is 
operated primarily for religious, philanthropic, charitable, 
educational, political or other similar purposes may maintain a NOW 
account. The Board regards the following kinds of organizations as 
eligible for NOW accounts under this standard if they are not operated 
for profit:
    (i) Organizations described in section 501(c)(3) through (13), and 
(19) of the Internal Revenue Code (26 U.S.C. (I.R.C. 1954) section 
501(c)(3) through (13) and (19));
    (ii) Political organizations described in section 527 of the 
Internal Revenue Code (26 U.S.C. (I.R.C. 1954) section 527); and
    (iii) Homeowners and condominium owners associations described in 
section 528 of the Internal Revenue Code (26 U.S.C. (I.R.C. 1954) 
section 528), including housing cooperative associations that perform 
similar functions.
    (2) All organizations that are operated for profit are not eligible 
to maintain NOW accounts at depository institutions.
    (3) The following types of organizations described in the cited 
provisions of the Internal Revenue Code are among those not eligible to 
maintain NOW accounts:
    (i) Credit unions and other mutual depository institutions described 
in section 501(c)(14) of the Internal Revenue Code (26 U.S.C. (I.R.C. 
1954) section 501(c)(14));
    (ii) Mutual insurance companies described in section 501(c)(15) of 
the Internal Revenue Code (26 U.S.C. (I.R.C. 1954) section 501(c)(15));
    (iii) Crop financing organizations described in section 501(c)(16) 
of the Internal Revenue Code (26 U.S.C. (I.R.C. 1954) section 
501(c)(16));
    (iv) Organizations created to function as part of a qualified group 
legal services plan described in section 501(c)(20) of the Internal 
Revenue Code (26 U.S.C. (I.R.C. 1954) section 501(c)(20)); or
    (v) Farmers' cooperatives described in section 521 of the Internal 
Revenue Code (26 U.S.C. (I.R.C. 1954) section 521).
    (d) Governmental units. Governmental units are generally eligible to 
maintain NOW accounts at member banks. NOW accounts may consist of funds 
in which the entire beneficial interest is held by the United States, 
any State of the United States, county, municipality, or political 
subdivision thereof, the District of Columbia, the Commonwealth of 
Puerto Rico, American Samoa, Guam, any territory or possession of the 
United States, or any political subdivision thereof.
    (e) Funds held by a fiduciary. Under current provisions, funds held 
in a fiduciary capacity (either by an individual fiduciary or by a 
corporate fiduciary such as a bank trust department or a trustee in 
bankruptcy), including those awaiting distribution or investment,

[[Page 120]]

may be held in the form of NOW accounts if all of the beneficiaries are 
otherwise eligible to maintain NOW accounts. The Board believes that 
such a classification should continue since fiduciaries are required to 
invest even temporarily idle balances to the greatest extent feasible in 
order to responsibly carry out their fiduciary duties. The availability 
of NOW accounts provides a convenient vehicle for providing a short-term 
return on temporarily idle trust funds of beneficiaries eligible to 
maintain accounts in their own names.
    (f) Grandfather provision. In order to avoid unduly disrupting 
account relationships, a NOW account established at a member bank on or 
before August 31, 1981, that represents funds of a nonqualifying entity 
that previously qualified to maintain a NOW account may continue to be 
maintained in a NOW account.
[52 FR 47697, Dec. 16, 1987]



Sec. 204.131  Participation by a depository institution in the secondary market for its own time deposits.

    (a) Background. In 1982, the Board issued an interpretation 
concerning the effect of a member bank's purchase of its own time 
deposits in the secondary market in order to ensure compliance with 
regulatory restrictions on the payment of interest on time deposits, 
with the prohibition against payment of interest on demand deposits, and 
with regulatory requirements designed to distinguish between time 
deposits and demand deposits for federal reserve requirement purposes 
(47 FR 37878, Aug. 27, 1982). The interpretation was designed to ensure 
that the regulatory early withdrawal penalties in Regulation Q used to 
achieve these three purposes were not evaded through the purchase by a 
member bank or its affiliate of a time deposit of the member bank prior 
to the maturity of the deposit.
    (b) Because the expiration of the Depository Institutions 
Deregulation Act (title II of Pub. L. 96-221) on April 1, 1986, removed 
the authority to set interest rate ceilings on deposits, one of the 
purposes for adopting the interpretation was eliminated. The removal of 
the authority to set interest rate ceilings on deposits required the 
Board to revise the early withdrawal penalties which were also used to 
distinguish between types of deposits for reserve requirement purposes. 
Effective April 1, 1986, the Board amended its Regulation D to 
incorporate early withdrawal penalties applicable to all depository 
institutions for this purpose (51 FR 9629, Mar. 20, 1986). Although the 
new early withdrawal penalties differ from the penalties used to enforce 
interest rate ceilings, secondary market purchases still effectively 
shorten the maturities of deposits and may be used to evade reserve 
requirements. This interpretation replaces the prior interpretation and 
states the application of the new early withdrawal penalties to 
purchases by depository institutions and their affiliates of the 
depository institution's time deposits. The interpretation applies only 
to situations in which the Board's regulatory penalties apply.
    (c) Secondary market purchases under the rule. The Board has 
determined that a depository institution purchasing a time deposit it 
has issued should be regarded as having paid the time deposit prior to 
maturity. The effect of the transaction is that the depository 
institution has cancelled a liability as opposed to having acquired an 
asset for its portfolio. Thus, the depository institution is required to 
impose any early withdrawal penalty required by Regulation D on the 
party from whom it purchases the instrument by deducting the amount of 
the penalty from the purchase price. The Board recognizes, however, that 
secondary market sales of time deposits are often done without regard to 
the identity of the original owner of the deposit. Such sales typically 
involve a pool of time deposits with the price based on the aggregate 
face value and average rate of return on the deposits. A depository 
institution purchasing time deposits from persons other than the person 
to whom the deposit was originally issued should be aware of the parties 
named on each of the deposits it is purchasing but through failure to 
inspect the deposits prior to the purchase may not be aware at the time 
it purchases a pool of time deposits that it originally issued one or 
more of the deposits in the pool. In such cases, if a purchasing 
depository institution does not wish to

[[Page 121]]

assess an applicable early withdrawal penalty, the deposit may be sold 
immediately in the secondary market as an alternative to imposing the 
early withdrawal penalty.
    (d) Purchases by affiliates. On a consolidated basis, if an 
affiliate (as defined in Sec. 204.2(q) of Regulation D) of a depository 
institution purchases a CD issued by the depository institution, the 
purchase does not reduce their consolidated liabilities and could be 
accomplished primarily to assist the depository institution in avoiding 
the requirements of the Board's Regulation D. Because the effect of the 
early withdrawal penalty rule could be easily circumvented by purchases 
of time deposits by affiliates, such purchases are also regarded as an 
early withdrawals of the time deposit, and the purchase should be 
treated as if the depository institution made the purchase directly. 
Thus, the regulatory requirements for early withdrawal penalties apply 
to affiliates of a depository institution as well as to the institution 
itself.
    (e) Depository institution acting as broker. The Board believes that 
it is permissible for a depository institution to facilitate the 
secondary market for its own time deposits by finding a purchaser for a 
time deposit that a customer is trying to sell. In such instances, the 
depository institution will not be paying out any of its own funds, and 
the depositor does not have a guarantee that the depository institution 
will actually be able to find a buyer.
    (f) Third-party market-makers. A depository institution may also 
establish and advertise arrangements whereby an unaffiliated third party 
agrees in advance to purchase time deposits issued by the institution. 
The Board would not regard these transactions as inconsistent with the 
purposes that the early withdrawal penalty is intended to serve unless a 
depository institution pays a fee to the third party purchaser as 
compensation for making the purchases or to remove the risk from 
purchasing the deposits. In this regard, any interim financing provided 
to such a third party by a depository institution in connection with the 
institution's secondary market activity involving the institution's time 
deposits must be made substantially on the same terms, including 
interest rates and collateral, as those prevailing at the same time for 
comparable transactions with other similarly situated persons and may 
not involve more than the normal risk of repayment.
    (g) Reciprocal arrangements. Finally, while a depository institution 
may enter into an arrangement with an unaffiliated third party wherein 
the third party agrees to stand ready to purchase time deposits held by 
the depository institution's customers, the Board will regard a 
reciprocal arrangement with another depository institution for purchase 
of each other's time deposits as a circumvention of the early withdrawal 
penalty rule and the purposes it is designed to serve.
[52 FR 47697, Dec. 16, 1987]



Sec. 204.132  Treatment of loan strip participations.

    (a) Effective March 31, 1988, the glossary section of the 
instructions for the Report of Condition and Income (FFIEC 031-034; OMB 
control number 7100-0036; available from a depository institution's 
primary federal regulator) (Call Report) was amended to clarify that 
certain short-term loan participation arrangements (sometimes known or 
styled as loan strips or strip participations) are regarded as 
borrowings rather than sales for Call Report purposes in certain 
circumstances. Through this interpretation, the Board is clarifying that 
such transactions should be treated as deposits for purposes of 
Regulation D.
    (b) These transactions involve the sale (or placement) of a short-
term loan by a depository institution that has been made under a long-
term commitment of the depository institution to advance funds. For 
example, a 90-day loan made under a five-year revolving line of credit 
may be sold to or placed with a third party by the depository 
institution originating the loan. The depository institution originating 
the loan is obligated to renew the 90-day note itself (by advancing 
funds to its customer at the end of the 90-day period) in the event the 
original participant does not wish to renew the credit. Since, under 
these arrangements, the depository institution is obligated to make 
another loan at the end of 90

[[Page 122]]

days (absent any event of default on the part of the borrower), the 
depository institution selling the loan or participation in effect must 
buy back the loan or participation at the maturity of the 90-day loan 
sold to or funded by the purchaser at the option of the purchaser. 
Accordingly, these transactions bear the essential characteristics of a 
repurchase agreement and, therefore, are reportable and reservable under 
Regulation D.
    (c) Because many of these transactions give rise to deposit 
liabilities in the form of promissory notes, acknowledgments of advance 
or similar obligations (written or oral) as described in 
Sec. 204.2(a)(1)(vii) of Regulation D, the exemptions from the 
definition of deposit incorporated in that section may apply to the 
liability incurred by a depository institution when it offers or 
originates a loan strip facility. Thus, for example, loan strips sold to 
domestic offices of other depository institutions are exempt from 
Regulation D under Sec. 204.2(a)(1)(vii)(A)(1) because they are 
obligations issued or undertaken and held for the account of a U.S. 
office of another depository institution. Similarly, some of these 
transactions result in Eurocurrency liabilities and are reportable and 
reservable as such.
[53 FR 24931, July 1, 1988]



Sec. 204.133  Multiple savings deposits treated as a transaction account.

    (a) Authority. Under section 19(a) of the Federal Reserve Act, the 
Board is authorized to define the terms used in section 19, and to 
prescribe regulations to implement and prevent evasions of the 
requirements of that section. Section 19(b) establishes general reserve 
requirements on transaction accounts and nonpersonal time deposits. 
Under section 19(b)(1)(F), the Board also is authorized to determine, by 
regulation or order, that an account or deposit is a transaction account 
if such account is used directly or indirectly for the purpose of making 
payments to third persons or others. This interpretation is adopted 
under these authorities.
    (b) Background. Under Regulation D, 12 CFR 204.2(d)(2), the term 
``savings deposit'' includes a deposit or an account that meets the 
requirements of Sec.  204.2(d)(1) and from which, under the terms of the 
deposit contract or by practice of the depository institution, the 
depositor is permitted or authorized to make up to six transfers or 
withdrawals per month or statement cycle of at least four weeks. The 
depository institution may authorize up to three of these six transfers 
to be made by check, draft, debit card, or similar order drawn by the 
depositor and payable to third parties. If more than six transfers (or 
more than three third party transfers by check, etc.) are permitted or 
authorized per month or statement cycle, the depository institution may 
not classify the account as a savings deposit. If the depositor, during 
the period, makes more than six transfers or withdrawals (or more than 
three third party transfers by check, etc.), the depository institution 
may, depending upon the facts and circumstances, be required by 
Regulation D (Footnote 5 at Sec. 204.2(d)(2)) to reclassify or close the 
account.
    (c) Use of multiple savings deposits. Depository institutions have 
asked for guidance as to when a depositor may maintain more than one 
savings deposit and be permitted to make all the transfers or 
withdrawals authorized for savings deposits under Regulation D from each 
savings deposit. The Board has determined that, if a depository 
institution suggests or otherwise promotes the establishment of or 
operation of multiple savings accounts with transfer capabilities in 
order to permit transfers and withdrawals in excess of those permitted 
by Regulation D for an individual savings account, the accounts 
generally should be considered to be transaction accounts. This 
determination applies regardless of whether the deposits have entirely 
separate account numbers or are subsidiary accounts of a master deposit 
account. Multiple savings accounts, however, should not be considered to 
be transaction accounts if there is a legitimate purpose, other than 
increasing the number of transfers or withdrawals, for opening more than 
one savings deposit.
    (d) Examples. The distinction between appropriate and inappropriate 
uses of multiple accounts is illustrated by the following examples:


[[Page 123]]


    Example 1.  (i) X wishes to open an account that maximizes his 
interest earnings but also permits X to draw up to ten checks a month 
against the account. X's Bank suggests an arrangement under which X 
establishes four savings deposits at Bank. Under the arrangement, X 
deposits funds in the first account and then draws three checks against 
that account. X then instructs Bank to transfer all funds in excess of 
the amount of the three checks to the second account and draws an 
additional three checks. Funds are continually shifted between accounts 
when additional checks are drawn so that no more than three checks are 
drawn against each account each month.
    (ii) Suggesting the use of four savings accounts in the name of X in 
this example is designed solely to permit the customer to exceed the 
transfer limitations on savings accounts. Accordingly, the savings 
accounts should be classified as transaction accounts.
    Example 2. (i) X is trustee of separate trusts for each of his four 
children. X's Bank suggests that X, as trustee, open a savings deposit 
in a depository institution for each of his four children in order to 
ensure an independent accounting of the funds held by each trust.
    (ii) X's Bank's suggestion to use four savings deposits in the name 
of X in this example is appropriate, and the third party transfers from 
one account should not be considered in determining whether the transfer 
and withdrawal limit was exceeded on any other account. X established a 
legitimate purpose, the segregation of the trust assets, for each 
account separate from the need to make third party transfers. 
Furthermore, there is no indication, such as by the direct or indirect 
transfer of funds from one account to another, that the accounts are 
being used for any purpose other than to make transfers to the 
appropriate trust.
    Example 3. (i) X opens four savings accounts with Bank. X regularly 
draws up to three checks against each account and transfers funds 
between the accounts in order to ensure that the checks on the separate 
accounts are covered. X's Bank did not suggest or otherwise promote the 
arrangement.
    (ii) X's Bank may treat the multiple accounts as savings deposits 
for Regulation D purposes, even if it discovers that X is using the 
accounts to increase the transfer limits applicable to savings accounts 
because X's Bank did not suggest or otherwise promote the establishment 
of or operation of the arrangement.
[57 FR 38427, Aug. 25, 1992]



Sec. 204.134  Linked time deposits and transaction accounts.

    (a) Authority. Under section 19(a) of the Federal Reserve Act (12 
U.S.C. 461(a)), the Board is authorized to define the terms used in 
section 19, and to prescribe regulations to implement and prevent 
evasions of the requirements of that section. Section 19(b)(2) 
establishes general reserve requirements on transaction accounts and 
nonpersonal time deposits. Under section 19(b)(1)(F), the Board also is 
authorized to determine, by regulation or order, that an account or 
deposit is a transaction account if such account is used directly or 
indirectly for the purpose of making payments to third persons or 
others. This interpretation is adopted under these authorities.
    (b) Linked time deposits and transaction accounts. Some depository 
institutions are offering or proposing to offer account arrangements 
under which a group of participating depositors maintain transaction 
accounts and time deposits with a depository institution in an 
arrangement under which each depositor may draw checks up to the 
aggregate amount held by that depositor in these accounts. Under this 
account arrangement, at the end of the day funds over a specified 
balance in each depositor's transaction account are swept from the 
transaction account into a commingled time deposit. A separate time 
deposit is opened on each business day with the balance of deposits 
received that day, as well as the proceeds of any time deposit that has 
matured that day that are not used to pay checks or withdrawals from the 
transaction accounts. The time deposits, which generally have maturities 
of seven days, are staggered so that one or more time deposits mature 
each business day. Funds are apportioned among the various time deposits 
in a manner calculated to minimize the possibility that the funds 
available on any given day would be insufficient to pay all items 
presented.
    (1) The time deposits involved in such an arrangement may be held 
directly by the depositor or indirectly through a trust or other 
arrangement. The individual depositor's interest in time deposits may be 
identifiable, with an agreement by the depositors that balances held in 
the arrangement may be

[[Page 124]]

used to pay checks drawn by other depositors participating in the 
arrangement, or the depositor may have an undivided interest in a series 
of time deposits.
    (2) Each day funds from the maturing time deposits are available to 
pay checks or other charges to the depositor's transaction account. The 
depository institution's decision concerning whether to pay checks drawn 
on an individual depositor's transaction account is based on the 
aggregate amount of funds that the depositor has invested in the 
arrangement, including any amount that may be invested in unmatured time 
deposits. Only if checks drawn by all participants in the arrangement 
exceed the total balance of funds available that day (i.e. funds from 
the time deposit that has matured that day as well as any deposits made 
to participating accounts during the day) is a time deposit withdrawn 
prior to maturity so as to incur an early withdrawal penalty. The 
arrangement may be marketed as providing the customer unlimited access 
to its funds with a high rate of interest.
    (c) Determination. In these arrangements, the aggregate deposit 
balances of all participants generally vary by a comparatively small 
amount, allowing the time deposits maturing on any day safely to cover 
any charges to the depositors' transaction accounts and avoiding any 
early withdrawal penalties. Thus, this arrangement substitutes time 
deposit balances for transaction accounts balances with no practical 
restrictions on the depositors' access to their funds, and serves no 
business purpose other than to allow the payment of higher interest 
through the avoidance of reserve requirements. As the time deposits may 
be used to provide funds indirectly for the purposes of making payments 
or transfers to third persons, the Board has determined that the time 
deposits should be considered to be transaction accounts for the 
purposes of Regulation D.
[57 FR 38428, Aug. 25, 1992]



Sec. 204.135  Shifting funds between depository institutions to make use of the low reserve tranche.

    (a) Authority. Under section 19(a) of the Federal Reserve Act (12 
U.S.C. 461(a)) the Board is authorized to define terms used in section 
19, and to prescribe regulations to implement and to prevent evasions of 
the requirements of that section. Section 19(b)(2) establishes general 
reserve requirements on transaction accounts and nonpersonal time 
deposits. In addition to its authority to define terms under section 
19(a), section 19(g) of the Federal Reserve Act also give the Board the 
specific authority to define terms relating to deductions allowed in 
reserve computation, including ``balances due from other banks.'' This 
interpretation is adopted under these authorities.
    (b) Background. (1) Currently, the Board requires reserves of zero, 
three, or ten percent on transaction accounts, depending upon the amount 
of transaction deposits in the depository institution, and of zero 
percent on nonpersonal time deposits. In determining its reserve balance 
under Regulation D, a depository institution may deduct the balances it 
maintains in another depository institution located in the United States 
if those balances are subject to immediate withdrawal by the depositing 
depository institution (Sec. 204.3(f)). This deduction is commonly known 
as the ``due from'' deduction. In addition, Regulation D at 
Sec. 204.2(a)(1)(vii)(A) exempts from the definition of ``deposit'' any 
liability of a depository institution on a promissory note or similar 
obligation that is issued or undertaken and held for the account of an 
office located in the United States of another depository institution. 
Transactions falling within this exemption from the definition of 
``deposit'' include federal funds or ``fed funds'' transactions.
    (2) Under section 19(b)(2) of the Federal Reserve Act (12 U.S.C. 
461(b)(2)), the Board is required to impose reserves of three percent on 
total transaction deposits at or below an amount determined under a 
formula. Transaction deposits falling within this amount are in the 
``low reserve tranche.'' Currently the low reserve

[[Page 125]]

tranche runs up to $42.2 million. Under section 19(b)(11) of the Federal 
Reserve Act (12 U.S.C. 461(b)(11)) the Board is also required to impose 
reserves of zero percent on reservable liabilities at or below an amount 
determined under a formula. Currently that amount is $3.6 million.
    (c) Shifting funds between depository institutions. The Board is 
aware that certain depository institutions with transaction account 
balances in an amount greater than the low reserve tranche have entered 
into transactions with affiliated depository institutions that have 
transaction account balances below the maximum low reserve tranche 
amount. These transactions are intended to lower the transaction 
reserves of the larger depository institution and leave the economic 
position of the smaller depository institutions unaffected, and have no 
apparent purpose other than to reduce required reserves of the larger 
institution. The larger depository institution places funds in a demand 
deposit at a small domestic depository institution. The larger 
depository institution considers those funds to be subject to the ``due 
from'' deduction, and accordingly reduces its transaction reserves in 
the amount of the demand deposit. The larger depository institution then 
reduces its transaction account reserves by 10 percent of the deposited 
amount. The small depository institution, because it is within the low 
reserve tranche, must maintain transaction account reserves of 3 percent 
on the funds deposited by the larger depository institution. The small 
depository institution then transfers all but 3 percent of the funds 
deposited by the larger depository institution back to the larger 
depository institution in a transaction that qualifies as a ``fed 
funds'' transaction. The 3 percent not transferred to the larger 
depository institution is the amount of the larger depository 
institution's deposit that the small depository institution must 
maintain as transaction account reserves. Because the larger depository 
institution books this second part of the transaction as a ``fed funds'' 
transaction, the larger depository institution does not maintain 
reserves on the funds that it receives back from the small depository 
institution. As a consequence, the larger depository institution has 
available for its use 97 percent of the amount transferred to the small 
depository institution. Had the larger depository institution not 
entered into the transaction, it would have maintained transaction 
account reserves of 10 percent on that amount, and would have had only 
90 percent of that amount for use in its business.
    (d) Determination. The Board believes that the practice described 
above generally is a device to evade the reserves imposed by Regulation 
D. Consequently, the Board has determined that, in the circumstances 
described above, the larger depository institution depositing funds in 
the smaller institution may not take a ``due from'' deduction on account 
of the funds in the demand deposit account if, and to the extent that, 
funds flow back to the larger depository institution from the small 
depository institution by means of a transaction that is exempt from 
transaction account reserve requirements.
[57 FR 38429, Aug. 25, 1992]



Sec. 204.136  Treatment of trust overdrafts for reserve requirement reporting purposes.

    (a) Authority. Under section 19(a) of the Federal Reserve Act (12 
U.S.C. 461(a)), the Board is authorized to define the terms used in 
section 19, and to prescribe regulations to implement and prevent 
evasions of the requirements of that section. Section 19(b) establishes 
general reserve requirements on transaction accounts and nonpersonal 
time deposits. Under section 19(b)(1)(F), the Board also is authorized 
to determine, by regulation or order, that an account or deposit is a 
transaction account if such account is used directly or indirectly for 
the purpose of making payments to third persons or others. This 
interpretation is adopted under these authorities.
    (b) Netting of trust account balances. (1) Not all depository 
institutions have treated overdrafts in trust accounts administered by a 
trust department in the same manner when calculating the balance in a 
commingled transaction account in the depository institution for the 
account of the trust department

[[Page 126]]

of the institution. In some cases, depository institutions carry the 
aggregate of the positive balances in the individual trust accounts as 
the balance on which reserves are computed for the commingled account. 
In other cases depository institutions net positive balances in some 
trust accounts against negative balances in other trust accounts, thus 
reducing the balance in the commingled account and lowering the reserve 
requirements. Except in limited circumstances, negative balances in 
individual trust accounts should not be netted against positive balances 
in other trust accounts when determining the balance in a trust 
department's commingled transaction account maintained in a depository 
institution's commercial department. The netting of positive and 
negative balances has the effect of reducing the aggregate of a 
commingled transaction account reported by the depository institution to 
the Federal Reserve and reduces the reserves the institution must hold 
against transaction accounts under Regulation D. Unless the governing 
trust agreement or state law authorizes the depository institution, as 
trustee, to lend money in one trust to another trust, the negative 
balances in effect, for purposes of Regulation D, represent a loan from 
the depository institution. Consequently, negative balances in 
individual trust accounts should not be netted against positive balances 
in other individual trust accounts, and the balance in any transaction 
account containing commingled trust balances should reflect positive or 
zero balances for each individual trust.
    (2) For example, where a trust department engages in securities 
lending activities for trust accounts, overdrafts might occur because of 
the trust department's attempt to ``normalize'' the effects of timing 
delays between the depository institution's receipt of the cash 
collateral from the broker and the trust department's posting of the 
transaction to the lending trust account. When securities are lent from 
a trust customer to a broker that pledges cash as collateral, the broker 
usually transfers the cash collateral to the depository institution on 
the day that the securities are made available. While the institution 
has the use of the funds from the time of the transfer, the trust 
department's normal posting procedures may not reflect receipt of the 
cash collateral by the individual account until the next day. On the day 
that the loan is terminated, the broker returns the securities to the 
lending trust account and the trust customer's account is debited for 
the amount of the cash collateral that is returned by the depository 
institution to the broker. The trust department, however, often does not 
liquidate the investment made with the cash collateral until the day 
after the loan terminates, a delay that normally causes a one day 
overdraft in the trust account. Regulation D requires that, on the day 
the loan is terminated, the depository institution regard the negative 
balance in the customer's account as zero for reserve requirement 
reporting purposes and not net the overdraft against positive balances 
in other accounts.
    (c) Procedures. In order to meet the requirements of Regulation D, a 
depository institution must have procedures to determine the aggregate 
of trust department transaction account balances for Regulation D on a 
daily basis. The procedures must consider only the positive balances in 
individual trust accounts without netting negative balances except in 
those limited circumstances where loans are legally permitted from one 
trust to another, or where offsetting is permitted pursuant to trust law 
or written agreement, or where the amount that caused the overdraft is 
still available in a settlement, suspense or other trust account within 
the trust department and may be used to offset the overdraft.
[57 FR 38429, Aug. 25, 1992]



PART 205--ELECTRONIC FUND TRANSFERS (REGULATION E)--Table of Contents




Sec.
205.1  Authority and purpose.
205.2  Definitions.
205.3  Coverage.
205.4  General disclosure requirements; jointly offered services.
205.5  Issuance of access devices.
205.6  Liability of consumer for unauthorized transfers.
205.7  Initial disclosures.

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205.8  Change in terms notice; error resolution notice.
205.9  Receipts at electronic terminals; periodic statements.
205.10  Preauthorized transfers.
205.11  Procedures for resolving errors.
205.12  Relation to other laws.
205.13  Administrative enforcement; record retention.
205.14  Electronic fund transfer service provider not holding consumer's 
          account.
205.15  Electronic fund transfer of government benefits.

Appendix A to Part 205--Model Disclosure Clauses and Forms
Appendix B to Part 205--Federal Enforcement Agencies
Appendix C to Part 205--Issuance of Staff Interpretations
Supplement I to Part 205--Official Staff Interpretations

    Authority:  15 U.S.C. 1693-1693r.

    Source:  Reg. E, 61 FR 19669, May 2, 1996, unless otherwise noted.



Sec. 205.1  Authority and purpose.

    (a) Authority. The regulation in this part, known as Regulation E, 
is issued by the Board of Governors of the Federal Reserve System 
pursuant to the Electronic Fund Transfer Act (15 U.S.C. 1693 et seq.). 
The information-collection requirements have been approved by the Office 
of Management and Budget under 44 U.S.C. 3501 et seq. and have been 
assigned OMB No. 7100-0200.
    (b) Purpose. This part carries out the purposes of the Electronic 
Fund Transfer Act, which establishes the basic rights, liabilities, and 
responsibilities of consumers who use electronic fund transfer services 
and of financial institutions that offer these services. The primary 
objective of the act and this part is the protection of individual 
consumers engaging in electronic fund transfers.



Sec. 205.2  Definitions.

    For purposes of this part, the following definitions apply:
    (a)(1) Access device means a card, code, or other means of access to 
a consumer's account, or any combination thereof, that may be used by 
the consumer to initiate electronic fund transfers.
    (2) An access device becomes an accepted access device when the 
consumer:
    (i) Requests and receives, or signs, or uses (or authorizes another 
to use) the access device to transfer money between accounts or to 
obtain money, property, or services;
    (ii) Requests validation of an access device issued on an 
unsolicited basis; or
    (iii) Receives an access device in renewal of, or in substitution 
for, an accepted access device from either the financial institution 
that initially issued the device or a successor.
    (b)(1) Account means a demand deposit (checking), savings, or other 
consumer asset account (other than an occasional or incidental credit 
balance in a credit plan) held directly or indirectly by a financial 
institution and established primarily for personal, family, or household 
purposes.
    (2) The term does not include an account held by a financial 
institution under a bona fide trust agreement.
    (c) Act means the Electronic Fund Transfer Act (title IX of the 
Consumer Credit Protection Act, 15 U.S.C. 1693 et seq.).
    (d) Business day means any day on which the offices of the 
consumer's financial institution are open to the public for carrying on 
substantially all business functions.
    (e) Consumer means a natural person.
    (f) Credit means the right granted by a financial institution to a 
consumer to defer payment of debt, incur debt and defer its payment, or 
purchase property or services and defer payment therefor.
    (g) Electronic fund transfer is defined in Sec. 205.3.
    (h) Electronic terminal means an electronic device, other than a 
telephone operated by a consumer, through which a consumer may initiate 
an electronic fund transfer. The term includes, but is not limited to, 
point-of-sale terminals, automated teller machines, and cash dispensing 
machines.
    (i) Financial institution means a bank, savings association, credit 
union, or any other person that directly or indirectly holds an account 
belonging to a consumer, or that issues an access device and agrees with 
a consumer to provide electronic fund transfer services.

[[Page 128]]

    (j) Person means a natural person or an organization, including a 
corporation, government agency, estate, trust, partnership, 
proprietorship, cooperative, or association.
    (k) Preauthorized electronic fund transfer means an electronic fund 
transfer authorized in advance to recur at substantially regular 
intervals.
    (l) State means any state, territory, or possession of the United 
States; the District of Columbia; the Commonwealth of Puerto Rico; or 
any political subdivision of the above in this paragraph (l).
    (m) Unauthorized electronic fund transfer means an electronic fund 
transfer from a consumer's account initiated by a person other than the 
consumer without actual authority to initiate the transfer and from 
which the consumer receives no benefit. The term does not include an 
electronic fund transfer initiated:
    (1) By a person who was furnished the access device to the 
consumer's account by the consumer, unless the consumer has notified the 
financial institution that transfers by that person are no longer 
authorized;
    (2) With fraudulent intent by the consumer or any person acting in 
concert with the consumer; or
    (3) By the financial institution or its employee.



Sec. 205.3  Coverage.

    (a) General. This part applies to any electronic fund transfer that 
authorizes a financial institution to debit or credit a consumer's 
account. Generally, this part applies to financial institutions. For 
purposes of Secs. 205.10 (b), (d), and (e) and 205.13, this part applies 
to any person.
    (b) Electronic fund transfer. The term electronic fund transfer 
means any transfer of funds that is initiated through an electronic 
terminal, telephone, computer, or magnetic tape for the purpose of 
ordering, instructing, or authorizing a financial institution to debit 
or credit an account. The term includes, but is not limited to:
    (1) Point-of-sale transfers;
    (2) Automated teller machine transfers;
    (3) Direct deposits or withdrawals of funds;
    (4) Transfers initiated by telephone; and
    (5) Transfers resulting from debit card transactions, whether or not 
initiated through an electronic terminal.
    (c) Exclusions from coverage. The term electronic fund transfer does 
not include:
    (1) Checks. Any transfer of funds originated by check, draft, or 
similar paper instrument; or any payment made by check, draft, or 
similar paper instrument at an electronic terminal.
    (2) Check guarantee or authorization. Any transfer of funds that 
guarantees payment or authorizes acceptance of a check, draft, or 
similar paper instrument but that does not directly result in a debit or 
credit to a consumer's account.
    (3) Wire or other similar transfers. Any transfer of funds through 
Fedwire or through a similar wire transfer system that is used primarily 
for transfers between financial institutions or between businesses.
    (4) Securities and commodities transfers. Any transfer of funds the 
primary purpose of which is the purchase or sale of a security or 
commodity, if the security or commodity is:
    (i) Regulated by the Securities and Exchange Commission or the 
Commodity Futures Trading Commission;
    (ii) Purchased or sold through a broker-dealer regulated by the 
Securities and Exchange Commission or through a futures commission 
merchant regulated by the Commodity Futures Trading Commission; or
    (iii) Held in book-entry form by a Federal Reserve Bank or federal 
agency.
    (5) Automatic transfers by account-holding institution. Any transfer 
of funds under an agreement between a consumer and a financial 
institution which provides that the institution will initiate individual 
transfers without a specific request from the consumer:
    (i) Between a consumer's accounts within the financial institution;
    (ii) From a consumer's account to an account of a member of the 
consumer's family held in the same financial institution; or

[[Page 129]]

    (iii) Between a consumer's account and an account of the financial 
institution, except that these transfers remain subject to 
Sec. 205.10(e) regarding compulsory use and sections 915 and 916 of the 
act regarding civil and criminal liability.
    (6) Telephone-initiated transfers. Any transfer of funds that:
    (i) Is initiated by a telephone communication between a consumer and 
a financial institution making the transfer; and
    (ii) Does not take place under a telephone bill-payment or other 
written plan in which periodic or recurring transfers are contemplated.
    (7) Small institutions. Any preauthorized transfer to or from an 
account if the assets of the account-holding financial institution were 
$100 million or less on the preceding December 31. If assets of the 
account-holding institution subsequently exceed $100 million, the 
institution's exemption for preauthorized transfers terminates one year 
from the end of the calendar year in which the assets exceed $100 
million. Preauthorized transfers exempt under this paragraph (c)(7) 
remain subject to Sec. 205.10(e) regarding compulsory use and sections 
915 and 916 of the act regarding civil and criminal liability.



Sec. 205.4  General disclosure requirements; jointly offered services.

    (a) Form of disclosures. Disclosures required under this part shall 
be clear and readily understandable, in writing, and in a form the 
consumer may keep. A financial institution may use commonly accepted or 
readily understandable abbreviations in complying with the disclosure 
requirements of this part.
    (b) Additional information; disclosures required by other laws. A 
financial institution may include additional information and may combine 
disclosures required by other laws (such as the Truth in Lending Act (15 
U.S.C. 1601 et seq.) or the Truth in Savings Act (12 U.S.C. 4301 et 
seq.)) with the disclosures required by this part.
    (c) [Reserved]
    (d) Multiple accounts and account holders--(1) Multiple accounts. A 
financial institution may combine the required disclosures into a single 
statement for a consumer who holds more than one account at the 
institution.
    (2) Multiple account holders. For joint accounts held by two or more 
consumers, a financial institution need provide only one set of the 
required disclosures and may provide them to any of the account holders.
    (e) Services offered jointly. Financial institutions that provide 
electronic fund transfer services jointly may contract among themselves 
to comply with the requirements that this part imposes on any or all of 
them. An institution need make only the disclosures required by 
Secs. 205.7 and 205.8 that are within its knowledge and within the 
purview of its relationship with the consumer for whom it holds an 
account.



Sec. 205.5  Issuance of access devices.

    (a) Solicited issuance. Except as provided in paragraph (b) of this 
section, a financial institution may issue an access device to a 
consumer only:
    (1) In response to an oral or written request for the device; or
    (2) As a renewal of, or in substitution for, an accepted access 
device whether issued by the institution or a successor.
    (b) Unsolicited issuance. A financial institution may distribute an 
access device to a consumer on an unsolicited basis if the access device 
is:
    (1) Not validated, meaning that the institution has not yet 
performed all the procedures that would enable a consumer to initiate an 
electronic fund transfer using the access device;
    (2) Accompanied by a clear explanation that the access device is not 
validated and how the consumer may dispose of it if validation is not 
desired;
    (3) Accompanied by the disclosures required by Sec. 205.7, of the 
consumer's rights and liabilities that will apply if the access device 
is validated; and
    (4) Validated only in response to the consumer's oral or written 
request for validation, after the institution has verified the 
consumer's identity by a reasonable means.

[[Page 130]]



Sec. 205.6  Liability of consumer for unauthorized transfers.

    (a) Conditions for liability. A consumer may be held liable, within 
the limitations described in paragraph (b) of this section, for an 
unauthorized electronic fund transfer involving the consumer's account 
only if the financial institution has provided the disclosures required 
by Sec. 205.7(b)(1), (2), and (3). If the unauthorized transfer involved 
an access device, it must be an accepted access device and the financial 
institution must have provided a means to identify the consumer to whom 
it was issued.
    (b) Limitations on amount of liability. A consumer's liability for 
an unauthorized electronic fund transfer or a series of related 
unauthorized transfers shall be determined as follows:
    (1) Timely notice given. If the consumer notifies the financial 
institution within two business days after learning of the loss or theft 
of the access device, the consumer's liability shall not exceed the 
lesser of $50 or the amount of unauthorized transfers that occur before 
notice to the financial institution.
    (2) Timely notice not given. If the consumer fails to notify the 
financial institution within two business days after learning of the 
loss or theft of the access device, the consumer's liability shall not 
exceed the lesser of $500 or the sum of:
    (i) $50 or the amount of unauthorized transfers that occur within 
the two business days, whichever is less; and
    (ii) The amount of unauthorized transfers that occur after the close 
of two business days and before notice to the institution, provided the 
institution establishes that these transfers would not have occurred had 
the consumer notified the institution within that two-day period.
    (3) Periodic statement; timely notice not given. A consumer must 
report an unauthorized electronic fund transfer that appears on a 
periodic statement within 60 days of the financial institution's 
transmittal of the statement to avoid liability for subsequent 
transfers. If the consumer fails to do so, the consumer's liability 
shall not exceed the amount of the unauthorized transfers that occur 
after the close of the 60 days and before notice to the institution, and 
that the institution establishes would not have occurred had the 
consumer notified the institution within the 60-day period. When an 
access device is involved in the unauthorized transfer, the consumer may 
be liable for other amounts set forth in paragraphs (b)(1) or (b)(2) of 
this section, as applicable.
    (4) Extension of time limits. If the consumer's delay in notifying 
the financial institution was due to extenuating circumstances, the 
institution shall extend the times specified above to a reasonable 
period.
    (5) Notice to financial institution. (i) Notice to a financial 
institution is given when a consumer takes steps reasonably necessary to 
provide the institution with the pertinent information, whether or not a 
particular employee or agent of the institution actually receives the 
information.
    (ii) The consumer may notify the institution in person, by 
telephone, or in writing.
    (iii) Written notice is considered given at the time the consumer 
mails the notice or delivers it for transmission to the institution by 
any other usual means. Notice may be considered constructively given 
when the institution becomes aware of circumstances leading to the 
reasonable belief that an unauthorized transfer to or from the 
consumer's account has been or may be made.
    (6) Liability under state law or agreement. If state law or an 
agreement between the consumer and the financial institution imposes 
less liability than is provided by this section, the consumer's 
liability shall not exceed the amount imposed under the state law or 
agreement.



Sec. 205.7  Initial disclosures.

    (a) Timing of disclosures. A financial institution shall make the 
disclosures required by this section at the time a consumer contracts 
for an electronic fund transfer service or before the first electronic 
fund transfer is made involving the consumer's account.
    (b) Content of disclosures. A financial institution shall provide 
the following disclosures, as applicable:
    (1) Liability of consumer. A summary of the consumer's liability, 
under Sec. 205.6

[[Page 131]]

or under state or other applicable law or agreement, for unauthorized 
electronic fund transfers.
    (2) Telephone number and address. The telephone number and address 
of the person or office to be notified when the consumer believes that 
an unauthorized electronic fund transfer has been or may be made.
    (3) Business days. The financial institution's business days.
    (4) Types of transfers; limitations. The type of electronic fund 
transfers that the consumer may make and any limitations on the 
frequency and dollar amount of transfers. Details of the limitations 
need not be disclosed if confidentiality is essential to maintain the 
security of the electronic fund transfer system.
    (5) Fees. Any fees imposed by the financial institution for 
electronic fund transfers or for the right to make transfers.
    (6) Documentation. A summary of the consumer's right to receipts and 
periodic statements, as provided in Sec. 205.9, and notices regarding 
preauthorized transfers as provided in Secs. 205.10(a), and 205.10(d).
    (7) Stop payment. A summary of the consumer's right to stop payment 
of a preauthorized electronic fund transfer and the procedure for 
placing a stop-payment order, as provided in Sec. 205.10(c).
    (8) Liability of institution. A summary of the financial 
institution's liability to the consumer under section 910 of the act for 
failure to make or to stop certain transfers.
    (9) Confidentiality. The circumstances under which, in the ordinary 
course of business, the financial institution may provide information 
concerning the consumer's account to third parties.
    (10) Error resolution. A notice that is substantially similar to 
Model Form A-3 as set out in Appendix A of this part concerning error 
resolution.



Sec. 205.8  Change in terms notice; error resolution notice.

    (a) Change in terms notice--(1) Prior notice required. A financial 
institution shall mail or deliver a written notice to the consumer, at 
least 21 days before the effective date, of any change in a term or 
condition required to be disclosed under Sec. 205.7(b) if the change 
would result in:
    (i) Increased fees for the consumer;
    (ii) Increased liability for the consumer;
    (iii) Fewer types of available electronic fund transfers; or
    (iv) Stricter limitations on the frequency or dollar amount of 
transfers.
    (2) Prior notice exception. A financial institution need not give 
prior notice if an immediate change in terms or conditions is necessary 
to maintain or restore the security of an account or an electronic fund 
transfer system. If the institution makes such a change permanent and 
disclosure would not jeopardize the security of the account or system, 
the institution shall notify the consumer in writing on or with the next 
regularly scheduled periodic statement or within 30 days of making the 
change permanent.
    (b) Error resolution notice. For accounts to or from which 
electronic fund transfers can be made, a financial institution shall 
mail or deliver to the consumer, at least once each calendar year, an 
error resolution notice substantially similar to the model form set 
forth in Appendix A of this part (Model Form A-3). Alternatively, an 
institution may include an abbreviated notice substantially similar to 
the model form error resolution notice set forth in Appendix A of this 
part (Model Form A-3), on or with each periodic statement required by 
Sec. 205.9(b).



Sec. 205.9  Receipts at electronic terminals; periodic statements.

    (a) Receipts at electronic terminals. A financial institution shall 
make a receipt available to a consumer at the time the consumer 
initiates an electronic fund transfer at an electronic terminal. The 
receipt shall set forth the following information, as applicable:
    (1) Amount. The amount of the transfer. A transaction fee may be 
included in this amount, provided the amount of the fee is disclosed on 
the receipt and displayed on or at the terminal.
    (2) Date. The date the consumer initiates the transfer.
    (3) Type. The type of transfer and the type of the consumer's 
account(s) to or from which funds are transferred. The

[[Page 132]]

type of account may be omitted if the access device used is able to 
access only one account at that terminal.
    (4) Identification. A number or code that identifies the consumer's 
account or accounts, or the access device used to initiate the transfer. 
The number or code need not exceed four digits or letters to comply with 
the requirements of this paragraph (a)(4).
    (5) Terminal location. The location of the terminal where the 
transfer is initiated, or an identification such as a code or terminal 
number. Except in limited circumstances where all terminals are located 
in the same city or state, if the location is disclosed, it shall 
include the city and state or foreign country and one of the following:
    (i) The street address; or
    (ii) A generally accepted name for the specific location; or
    (iii) The name of the owner or operator of the terminal if other 
than the account-holding institution.
    (6) Third party transfer. The name of any third party to or from 
whom funds are transferred.
    (b) Periodic statements. For an account to or from which electronic 
fund transfers can be made, a financial institution shall send a 
periodic statement for each monthly cycle in which an electronic fund 
transfer has occurred; and shall send a periodic statement at least 
quarterly if no transfer has occurred. The statement shall set forth the 
following information, as applicable:
    (1) Transaction information. For each electronic fund transfer 
occurring during the cycle:
    (i) The amount of the transfer;
    (ii) The date the transfer was credited or debited to the consumer's 
account;
    (iii) The type of transfer and type of account to or from which 
funds were transferred;
    (iv) For a transfer initiated by the consumer at an electronic 
terminal (except for a deposit of cash or a check, draft, or similar 
paper instrument), the terminal location described in paragraph (a)(5) 
of this section; and
    (v) The name of any third party to or from whom funds were 
transferred.
    (2) Account number. The number of the account.
    (3) Fees. The amount of any fees assessed against the account during 
the statement period for electronic fund transfers, for the right to 
make transfers, or for account maintenance.
    (4) Account balances. The balance in the account at the beginning 
and at the close of the statement period.
    (5) Address and telephone number for inquiries. The address and 
telephone number to be used for inquiries or notice of errors, preceded 
by ``Direct inquiries to'' or similar language. The address and 
telephone number provided on an error resolution notice under 
Sec. 205.8(b) given on or with the statement satisfies this requirement.
    (6) Telephone number for preauthorized transfers. A telephone number 
the consumer may call to ascertain whether preauthorized transfers to 
the consumer's account have occurred, if the financial institution uses 
the telephone-notice option under
    Sec. 205.10(a)(1)(iii).
    (c) Exceptions to the periodic statement requirement for certain 
accounts--(1) Preauthorized transfers to accounts. For accounts that may 
be accessed only by preauthorized transfers to the account the following 
rules apply:
    (i) Passbook accounts. For passbook accounts, the financial 
institution need not provide a periodic statement if the institution 
updates the passbook upon presentation or enters on a separate document 
the amount and date of each electronic fund transfer since the passbook 
was last presented.
    (ii) Other accounts. For accounts other than passbook accounts, the 
financial institution must send a periodic statement at least quarterly.
    (2) Intra-institutional transfers. For an electronic fund transfer 
initiated by the consumer between two accounts of the consumer in the 
same institution, documenting the transfer on a periodic statement for 
one of the two accounts satisfies the periodic statement requirement.
    (3) Relationship between paragraphs (c)(1) and (c)(2) of this 
section. An account that is accessed by preauthorized transfers to the 
account described in paragraph (c)(1) of this section and by intra-
institutional transfers described in paragraph (c)(2) of this section, 
but by no other type of electronic fund

[[Page 133]]

transfers, qualifies for the exceptions provided by paragraph (c)(1) of 
this section .
    (d) Documentation for foreign-initiated transfers. The failure by a 
financial institution to provide a terminal receipt for an electronic 
fund transfer or to document the transfer on a periodic statement does 
not violate this part if:
    (1) The transfer is not initiated within a state; and
    (2) The financial institution treats an inquiry for clarification or 
documentation as a notice of error in accordance with Sec. 205.11.



Sec. 205.10  Preauthorized transfers.

    (a) Preauthorized transfers to consumer's account--(1) Notice by 
financial institution. When a person initiates preauthorized electronic 
fund transfers to a consumer's account at least once every 60 days, the 
account-holding financial institution shall provide notice to the 
consumer by:
    (i) Positive notice. Providing oral or written notice of the 
transfer within two business days after the transfer occurs; or
    (ii) Negative notice. Providing oral or written notice, within two 
business days after the date on which the transfer was scheduled to 
occur, that the transfer did not occur; or
    (iii) Readily-available telephone line. Providing a readily 
available telephone line that the consumer may call to determine whether 
the transfer occurred and disclosing the telephone number on the initial 
disclosure of account terms and on each periodic statement.
    (2) Notice by payor. A financial institution need not provide notice 
of a transfer if the payor gives the consumer positive notice that the 
transfer has been initiated.
    (3) Crediting. A financial institution that receives a preauthorized 
transfer of the type described in paragraph (a)(1) of this section shall 
credit the amount of the transfer as of the date the funds for the 
transfer are received.
    (b) Written authorization for preauthorized transfers from 
consumer's account. Preauthorized electronic fund transfers from a 
consumer's account may be authorized only by a writing signed or 
similarly authenticated by the consumer. The person that obtains the 
authorization shall provide a copy to the consumer.
    (c) Consumer's right to stop payment--(1) Notice. A consumer may 
stop payment of a preauthorized electronic fund transfer from the 
consumer's account by notifying the financial institution orally or in 
writing at least three business days before the scheduled date of the 
transfer.
    (2) Written confirmation. The financial institution may require the 
consumer to give written confirmation of a stop-payment order within 14 
days of an oral notification. An institution that requires written 
confirmation shall inform the consumer of the requirement and provide 
the address where confirmation must be sent when the consumer gives the 
oral notification. An oral stop-payment order ceases to be binding after 
14 days if the consumer fails to provide the required written 
confirmation.
    (d) Notice of transfers varying in amount--(1) Notice. When a 
preauthorized electronic fund transfer from the consumer's account will 
vary in amount from the previous transfer under the same authorization 
or from the preauthorized amount, the designated payee or the financial 
institution shall send the consumer written notice of the amount and 
date of the transfer at least 10 days before the scheduled date of 
transfer.
    (2) Range. The designated payee or the institution shall inform the 
consumer of the right to receive notice of all varying transfers, but 
may give the consumer the option of receiving notice only when a 
transfer falls outside a specified range of amounts or only when a 
transfer differs from the most recent transfer by more than an agreed-
upon amount.
    (e) Compulsory use--(1) Credit. No financial institution or other 
person may condition an extension of credit to a consumer on the 
consumer's repayment by preauthorized electronic fund transfers, except 
for credit extended under an overdraft credit plan or extended to 
maintain a specified minimum balance in the consumer's account.

[[Page 134]]

    (2) Employment or government benefit. No financial institution or 
other person may require a consumer to establish an account for receipt 
of electronic fund transfers with a particular institution as a 
condition of employment or receipt of a government benefit.



Sec. 205.11  Procedures for resolving errors.

    (a) Definition of error--(1) Types of transfers or inquiries 
covered. The term error means:
    (i) An unauthorized electronic fund transfer;
    (ii) An incorrect electronic fund transfer to or from the consumer's 
account;
    (iii) The omission of an electronic fund transfer from a periodic 
statement;
    (iv) A computational or bookkeeping error made by the financial 
institution relating to an electronic fund transfer;
    (v) The consumer's receipt of an incorrect amount of money from an 
electronic terminal;
    (vi) An electronic fund transfer not identified in accordance with 
Secs. 205.9 or 205.10(a); or
    (vii) The consumer's request for documentation required by 
Secs. 205.9 or 205.10(a) or for additional information or clarification 
concerning an electronic fund transfer, including a request the consumer 
makes to determine whether an error exists under paragraphs (a)(1) (i) 
through (vi) of this section.
    (2) Types of inquiries not covered. The term error does not include:
    (i) A routine inquiry about the consumer's account balance;
    (ii) A request for information for tax or other recordkeeping 
purposes; or
    (iii) A request for duplicate copies of documentation.
    (b) Notice of error from consumer--(1) Timing; contents. A financial 
institution shall comply with the requirements of this section with 
respect to any oral or written notice of error from the consumer that:
    (i) Is received by the institution no later than 60 days after the 
institution sends the periodic statement or provides the passbook 
documentation, required by Sec. 205.9, on which the alleged error is 
first reflected;
    (ii) Enables the institution to identify the consumer's name and 
account number; and
    (iii) Indicates why the consumer believes an error exists and 
includes to the extent possible the type, date, and amount of the error, 
except for requests described in paragraph (a)(1)(vii) of this section.
    (2) Written confirmation. A financial institution may require the 
consumer to give written confirmation of an error within 10 business 
days of an oral notice. An institution that requires written 
confirmation shall inform the consumer of the requirement and provide 
the address where confirmation must be sent when the consumer gives the 
oral notification.
    (3) Request for documentation or clarifications. When a notice of 
error is based on documentation or clarification that the consumer 
requested under paragraph (a)(1)(vii) of this section, the consumer's 
notice of error is timely if received by the financial institution no 
later than 60 days after the institution sends the information 
requested.
    (c) Time limits and extent of investigation--(1) Ten-day period. A 
financial institution shall investigate promptly and, except as 
otherwise provided in this paragraph (c), shall determine whether an 
error occurred within 10 business days of receiving a notice of error. 
The institution shall report the results to the consumer within three 
business days after completing its investigation. The institution shall 
correct the error within one business day after determining that an 
error occurred.
    (2) Forty-five day period. If the financial institution is unable to 
complete its investigation within 10 business days, the institution may 
take up to 45 days from receipt of a notice of error to investigate and 
determine whether an error occurred, provided the institution does the 
following:
    (i) Provisionally credits the consumer's account in the amount of 
the alleged error (including interest where applicable) within 10 
business days of receiving the error notice. If the financial 
institution has a reasonable basis for believing that an unauthorized 
electronic fund transfer has occurred and

[[Page 135]]

the institution has satisfied the requirements of Sec. 205.6(a), the 
institution may withhold a maximum of $50 from the amount credited. An 
institution need not provisionally credit the consumer's account if:
    (A) The institution requires but does not receive written 
confirmation within 10 business days of an oral notice of error; or
    (B) The alleged error involves an account that is subject to 
Regulation T (Securities Credit by Brokers and Dealers, 12 CFR part 
220);
    (ii) Informs the consumer, within two business days after the 
provisional crediting, of the amount and date of the provisional 
crediting and gives the consumer full use of the funds during the 
investigation;
    (iii) Corrects the error, if any, within one business day after 
determining that an error occurred; and
    (iv) Reports the results to the consumer within three business days 
after completing its investigation (including, if applicable, notice 
that a provisional credit has been made final).
    (3) Extension of time periods. The applicable time periods in this 
paragraph (c)(3) are 20 business days in place of 10 business days, and 
90 days in place of 45 days, if a notice of error involves an electronic 
fund transfer that:
    (i) Was not initiated within a state; or
    (ii) Resulted from a point-of-sale debit card transaction.
    (4) Investigation. With the exception of transfers covered by 
Sec. 205.14, a financial institution's review of its own records 
regarding an alleged error satisfies the requirements of this section 
if:
    (i) The alleged error concerns a transfer to or from a third party; 
and
    (ii) There is no agreement between the institution and the third 
party for the type of electronic fund transfer involved.
    (d) Procedures if financial institution determines no error or 
different error occurred. In addition to following the procedures 
specified in paragraph (c) of this section, the financial institution 
shall follow the procedures set forth in this paragraph (d) if it 
determines that no error occurred or that an error occurred in a manner 
or amount different from that described by the consumer:
    (1) Written explanation. The institution's report of the results of 
its investigation shall include a written explanation of the 
institution's findings and shall note the consumer's right to request 
the documents that the institution relied on in making its 
determination. Upon request, the institution shall promptly provide 
copies of the documents.
    (2) Debiting provisional credit. Upon debiting a provisionally 
credited amount, the financial institution shall:
    (i) Notify the consumer of the date and amount of the debiting;
    (ii) Notify the consumer that the institution will honor checks, 
drafts, or similar instruments payable to third parties and 
preauthorized transfers from the consumer's account (without charge to 
the consumer as a result of an overdraft) for five business days after 
the notification. The institution shall honor items as specified in the 
notice, but need honor only items that it would have paid if the 
provisionally credited funds had not been debited.
    (e) Reassertion of error. A financial institution that has fully 
complied with the error resolution requirements has no further 
responsibilities under this section should the consumer later reassert 
the same error, except in the case of an error asserted by the consumer 
following receipt of information provided under paragraph (a)(1)(vii) of 
this section.



Sec. 205.12  Relation to other laws.

    (a) Relation to Truth in Lending. (1) The Electronic Fund Transfer 
Act and this part govern:
    (i) The addition to an accepted credit card, as defined in 
Regulation Z (12 CFR 226.12(a)(2), footnote 21), of the capability to 
initiate electronic fund transfers;
    (ii) The issuance of an access device that permits credit extensions 
(under a preexisting agreement between a consumer and a financial 
institution) only when the consumer's account is overdrawn or to 
maintain a specified minimum balance in the consumer's account; and
    (iii) A consumer's liability for an unauthorized electronic fund 
transfer and

[[Page 136]]

the investigation of errors involving an extension of credit that occurs 
under an agreement between the 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.
    (2) The Truth in Lending Act and Regulation Z (12 CFR part 226), 
which prohibit the unsolicited issuance of credit cards, govern:
    (i) The addition of a credit feature to an accepted access device; 
and
    (ii) Except as provided in paragraph (a)(1)(ii) of this section, the 
issuance of a credit card that is also an access device.
    (b) Preemption of inconsistent state laws--(1) Inconsistent 
requirements. The Board shall determine, upon its own motion or upon the 
request of a state, financial institution, or other interested party, 
whether the act and this part preempt state law relating to electronic 
fund transfers. Only state laws that are inconsistent with the act and 
this part are preempted and then only to the extent of the 
inconsistency. A state law is not inconsistent with the act and this 
part if it is more protective of consumers.
    (2) Standards for determination. State law is inconsistent with the 
requirements of the act and this part if it:
    (i) Requires or permits a practice or act prohibited by the federal 
law;
    (ii) Provides for consumer liability for unauthorized electronic 
fund transfers that exceeds the limits imposed by the federal law;
    (iii) Allows longer time periods than the federal law for 
investigating and correcting alleged errors, or does not require the 
financial institution to credit the consumer's account during an error 
investigation in accordance with Sec. 205.11(c)(2)(i); or
    (iv) Requires initial disclosures, periodic statements, or receipts 
that are different in content from those required by the federal law 
except to the extent that the disclosures relate to consumer rights 
granted by the state law and not by the federal law.
    (c) State exemptions--(1) General rule. Any state may apply for an 
exemption from the requirements of the act or this part for any class of 
electronic fund transfers within the state. The Board shall grant an 
exemption if it determines that:
    (i) Under state law the class of electronic fund transfers is 
subject to requirements substantially similar to those imposed by the 
federal law; and
    (ii) There is adequate provision for state enforcement.
    (2) Exception. To assure that the federal and state courts continue 
to have concurrent jurisdiction, and to aid in implementing the act:
    (i) No exemption shall extend to the civil liability provisions of 
section 915 of the act; and
    (ii) When the Board grants an exemption, the state law requirements 
shall constitute the requirements of the federal law for purposes of 
section 915 of the act, except for state law requirements not imposed by 
the federal law.



Sec. 205.13  Administrative enforcement; record retention.

    (a) Enforcement by federal agencies. Compliance with this part is 
enforced by the agencies listed in Appendix B of this part.
    (b) Record retention. (1) Any person subject to the act and this 
part shall retain evidence of compliance with the requirements imposed 
by the act and this part for a period of not less than two years from 
the date disclosures are required to be made or action is required to be 
taken.
    (2) Any person subject to the act and this part having actual notice 
that it is the subject of an investigation or an enforcement proceeding 
by its enforcement agency, or having been served with notice of an 
action filed under sections 910, 915, or 916(a) of the act, shall retain 
the records that pertain to the investigation, action, or proceeding 
until final disposition of the matter unless an earlier time is allowed 
by court or agency order.



Sec. 205.14  Electronic fund transfer service provider not holding consumer's account.

    (a) Provider of electronic fund transfer service. A person that 
provides an electronic fund transfer service to a consumer but that does 
not hold the consumer's account is subject to all requirements of this 
part if the person:

[[Page 137]]

    (1) Issues a debit card (or other access device) that the consumer 
can use to access the consumer's account held by a financial 
institution; and
    (2) Has no agreement with the account-holding institution regarding 
such access.
    (b) Compliance by service provider. In addition to the requirements 
generally applicable under this part, the service provider shall comply 
with the following special rules:
    (1) Disclosures and documentation. The service provider shall give 
the disclosures and documentation required by Secs. 205.7, 205.8, and 
205.9 that are within the purview of its relationship with the consumer. 
The service provider need not furnish the periodic statement required by 
Sec. 205.9(b) if the following conditions are met:
    (i) The debit card (or other access device) issued to the consumer 
bears the service provider's name and an address or telephone number for 
making inquiries or giving notice of error;
    (ii) The consumer receives a notice concerning use of the debit card 
that is substantially similar to the notice contained in Appendix A of 
this part;
    (iii) The consumer receives, on or with the receipts required by 
Sec. 205.9(a), the address and telephone number to be used for an 
inquiry, to give notice of an error, or to report the loss or theft of 
the debit card;
    (iv) The service provider transmits to the account-holding 
institution the information specified in Sec. 205.9(b)(1), in the format 
prescribed by the automated clearinghouse system used to clear the fund 
transfers;
    (v) The service provider extends the time period for notice of loss 
or theft of a debit card, set forth in Sec. 205.6(b) (1) and (2), from 
two business days to four business days after the consumer learns of the 
loss or theft; and extends the time periods for reporting unauthorized 
transfers or errors, set forth in Secs. 205.6(b)(3) and 205.11(b)(1)(i), 
from 60 days to 90 days following the transmittal of a periodic 
statement by the account-holding institution.
    (2) Error resolution. (i) The service provider shall extend by a 
reasonable time the period in which notice of an error must be received, 
specified in Sec. 205.11(b)(1)(i), if a delay resulted from an initial 
attempt by the consumer to notify the account-holding institution.
    (ii) The service provider shall disclose to the consumer the date on 
which it initiates a transfer to effect a provisional credit in 
accordance with Sec. 205.11(c)(2)(ii).
    (iii) If the service provider determines an error occurred, it shall 
transfer funds to or from the consumer's account, in the appropriate 
amount and within the applicable time period, in accordance with 
Sec. 205.11(c)(2)(i).
    (iv) If funds were provisionally credited and the service provider 
determines no error occurred, it may reverse the credit. The service 
provider shall notify the account-holding institution of the period 
during which the account-holding institution must honor debits to the 
account in accordance with Sec. 205.11(d)(2)(ii). If an overdraft 
results, the service provider shall promptly reimburse the account-
holding institution in the amount of the overdraft.
    (c) Compliance by account-holding institution. The account-holding 
institution need not comply with the requirements of the act and this 
part with respect to electronic fund transfers initiated through the 
service provider except as follows:
    (1) Documentation. The account-holding institution shall provide a 
periodic statement that describes each electronic fund transfer 
initiated by the consumer with the access device issued by the service 
provider. The account-holding institution has no liability for the 
failure to comply with this requirement if the service provider did not 
provide the necessary information; and
    (2) Error resolution. Upon request, the account-holding institution 
shall provide information or copies of documents needed by the service 
provider to investigate errors or to furnish copies of documents to the 
consumer. The account-holding institution shall also honor debits to the 
account in accordance with Sec. 205.11(d)(2)(ii).



Sec. 205.15  Electronic fund transfer of government benefits.

    (a) Government agency subject to regulation. (1) A government agency 
is deemed to be a financial institution for purposes of the act and this 
part if directly or indirectly it issues an access

[[Page 138]]

device to a consumer for use in initiating an electronic fund transfer 
of government benefits from an account, other than needs-tested benefits 
in a program established under state or local law or administered by a 
state or local agency. The agency shall comply with all applicable 
requirements of the act and this part, except as provided in this 
section.
    (2) For purposes of this section, the term account means an account 
established by a government agency for distributing government benefits 
to a consumer electronically, such as through automated teller machines 
or point-of-sale terminals, but does not include an account for 
distributing needs-tested benefits in a program established under state 
or local law or administered by a state or local agency.
    (b) Issuance of access devices. For purposes of this section, a 
consumer is deemed to request an access device when the consumer applies 
for government benefits that the agency disburses or will disburse by 
means of an electronic fund transfer. The agency shall verify the 
identity of the consumer receiving the device by reasonable means before 
the device is activated.
    (c) Alternative to periodic statement. A government agency need not 
furnish the periodic statement required by Sec. 205.9(b) if the agency 
makes available to the consumer:
    (1) The consumer's account balance, through a readily available 
telephone line and at a terminal (such as by providing balance 
information at a balance-inquiry terminal or providing it, routinely or 
upon request, on a terminal receipt at the time of an electronic fund 
transfer); and
    (2) A written history of the consumer's account transactions that is 
provided promptly in response to an oral or written request and that 
covers at least 60 days preceding the date of a request by the consumer.
    (d) Modified requirements. A government agency that does not furnish 
periodic statements, in accordance with paragraph (c) of this section, 
shall comply with the following special rules:
    (1) Initial disclosures. The agency shall modify the disclosures 
under Sec. 205.7(b) by disclosing:
    (i) Account balance. The means by which the consumer may obtain 
information concerning the account balance, including a telephone 
number. The agency provides a notice substantially similar to the notice 
contained in paragraph A-5 in Appendix A of this part.
    (ii) Written account history. A summary of the consumer's right to 
receive a written account history upon request, in place of the periodic 
statement required by Sec. 205.7(b)(6), and the telephone number to call 
to request an account history. This disclosure may be made by providing 
a notice substantially similar to the notice contained in paragraph A-5 
in Appendix A of this part.
    (iii) Error resolution. A notice concerning error resolution that is 
substantially similar to the notice contained in paragraph A-5 in 
Appendix A of this part, in place of the notice required by 
Sec. 205.7(b)(10).
    (2) Annual error resolution notice. The agency shall provide an 
annual notice concerning error resolution that is substantially similar 
to the notice contained in paragraph A-5 in appendix A, in place of the 
notice required by Sec. 205.8(b).
    (3) Limitations on liability. For purposes of Sec. 205.6(b)(3), 
regarding a 60-day period for reporting any unauthorized transfer that 
appears on a periodic statement, the 60-day period shall begin with 
transmittal of a written account history or other account information 
provided to the consumer under paragraph (c) of this section.
    (4) Error resolution. The agency shall comply with the requirements 
of Sec. 205.11 in response to an oral or written notice of an error from 
the consumer that is received no later than 60 days after the consumer 
obtains the written account history or other account information, under 
paragraph (c) of this section, in which the error is first reflected.
[Reg. E, 61 FR 19669, May 2, 1996, as amended at 62 FR 43469, Aug. 14, 
1997]

[[Page 139]]

       Appendix A to Part 205--Model Disclosure Clauses and Forms

                            Table of Contents

A-1--Model Clauses for unsolicited issuance (Sec. 205.5(b)(2))
A-2--Model clauses for initial disclosures (Sec. 205.7(b))
A-3--Model forms for error resolution notice (Secs. 205.7(b)(10) and 
          205.8(b))
A-4--Model form for service-providing institutions 
          (Sec. 205.14(b)(1)(ii))
A-5--Model forms for government agencies (Sec. 205.15(d)(1) and (2))

     A-1--Model Clauses For Unsolicited Issuance (Sec. 205.5(b)(2))

    (a) Accounts using cards. You cannot use the enclosed card to 
transfer money into or out of your account until we have validated it. 
If you do not want to use the card, please (destroy it at once by 
cutting it in half).
    [Financial institution may add validation instructions here.]
    (b) Accounts using codes. You cannot use the enclosed code to 
transfer money into or out of your account until we have validated it. 
If you do not want to use the code, please (destroy this notice at 
once).
    [Financial institution may add validation instructions here.]

       A-2--Model Clauses For Initial Disclosures (Sec. 205.7(b))

    (a) Consumer Liability (Sec. 205.7(b)(1)). (Tell us AT ONCE if you 
believe your [card] [code] has been lost or stolen. Telephoning is the 
best way of keeping your possible losses down. You could lose all the 
money in your account (plus your maximum overdraft line of credit). If 
you tell us within 2 business days, you can lose no more than $50 if 
someone used your [card][code] without your permission. (If you believe 
your [card] [code] has been lost or stolen, and you tell us within 2 
business days after you learn of the loss or theft, you can lose no more 
than $50 if someone used your [card] [code] without your permission.)
    If you do NOT tell us within 2 business days after you learn of the 
loss or theft of your [card] [code], and we can prove we could have 
stopped someone from using your [card] [code] without your permission if 
you had told us, you could lose as much as $500.
    Also, if your statement shows transfers that you did not make, tell 
us at once. If you do not tell us within 60 days after the statement was 
mailed to you, you may not get back any money you lost after the 60 days 
if we can prove that we could have stopped someone from taking the money 
if you had told us in time.
    If a good reason (such as a long trip or a hospital stay) kept you 
from telling us, we will extend the time periods.
    (b) Contact in event of unauthorized transfer (Sec. 205.7(b)(2)). If 
you believe your [card] [code] has been lost or stolen or that someone 
has transferred or may transfer money from your account without your 
permission, call:

[Telephone number]
or write:
[Name of person or office to be notified]
[Address]

    (c) Business days (Sec. 205.7(b)(3)). For purposes of these 
disclosures, our business days are (Monday through Friday) (Monday 
through Saturday) (any day including Saturdays and Sundays). Holidays 
are (not) included.
    (d) Transfer types and limitations (Sec. 205.7(b)(4))--(1) Account 
access. You may use your [card][code] to:
    (i) Withdraw cash from your [checking] [or] [savings] account.
    (ii) Make deposits to your [checking] [or] [savings] account.
    (iii) Transfer funds between your checking and savings accounts 
whenever you request.
    (iv) Pay for purchases at places that have agreed to accept the 
[card] [code].
    (v) Pay bills directly [by telephone] from your [checking] [or] 
[savings] account in the amounts and on the days you request.
    Some of these services may not be available at all terminals.
    (2) Limitations on frequency of transfers.--(i) You may make only 
[insert number, e.g., 3] cash withdrawals from our terminals each 
[insert time period, e.g., week].
    (ii) You can use your telephone bill-payment service to pay [insert 
number] bills each [insert time period] [telephone call].
    (iii) You can use our point-of-sale transfer service for [insert 
number] transactions each [insert time period].
    (iv) For security reasons, there are limits on the number of 
transfers you can make using our [terminals] [telephone bill-payment 
service] [point-of-sale transfer service].
    (3) Limitations on dollar amounts of transfers--(i) You may withdraw 
up to [insert dollar amount] from our terminals each [insert time 
period] time you use the [card] [code].
    (ii) You may buy up to [insert dollar amount] worth of goods or 
services each [insert time period] time you use the [card] [code] in our 
point-of-sale transfer service.
    (e) Fees (Sec. 205.7(b)(5))--(1) Per transfer charge. We will charge 
you [insert dollar amount] for each transfer you make using our 
[automated teller machines] [telephone bill-payment service] [point-of-
sale transfer service].
    (2) Fixed charge. We will charge you [insert dollar amount] each 
[insert time period] for our [automated teller machine service] 
[telephone bill-payment service] [point-of-sale transfer service].

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    (3) Average or minimum balance charge. We will only charge you for 
using our [automated teller machines] [telephone bill-payment service] 
[point-of-sale transfer service] if the [average] [minimum] balance in 
your [checking account] [savings account] [accounts] falls below [insert 
dollar amount]. If it does, we will charge you [insert dollar amount] 
each [transfer] [insert time period].
    (f) Confidentiality (Sec. 205.7(b)(9)). We will disclose information 
to third parties about your account or the transfers you make:
    (i) Where it is necessary for completing transfers, or
    (ii) In order to verify the existence and condition of your account 
for a third party, such as a credit bureau or merchant, or
    (iii) In order to comply with government agency or court orders, or
    (iv) If you give us your written permission.
    (g) Documentation (Sec. 205.7(b)(6))--(1) Terminal transfers. You 
can get a receipt at the time you make any transfer to or from your 
account using one of our [automated teller machines] [or] [point-of-sale 
terminals].
    (2) Preauthorized credits. If you have arranged to have direct 
deposits made to your account at least once every 60 days from the same 
person or company, (we will let you know if the deposit is [not] made.) 
[the person or company making the deposit will tell you every time they 
send us the money] [you can call us at (insert telephone number) to find 
out whether or not the deposit has been made].
    (3) Periodic statements. You will get a [monthly] [quarterly] 
account statement (unless there are no transfers in a particular month. 
In any case you will get the statement at least quarterly).
    (4) Passbook account where the only possible electronic fund 
transfers are preauthorized credits. If you bring your passbook to us, 
we will record any electronic deposits that were made to your account 
since the last time you brought in your passbook.
    (h) Preauthorized payments (Sec. 205.7(b) (6), (7) and (8); 
Sec. 205.10(d))--(1) Right to stop payment and procedure for doing so. 
If you have told us in advance to make regular payments out of your 
account, you can stop any of these payments. Here's how:
    Call us at [insert telephone number], or write us at [insert 
address], in time for us to receive your request 3 business days or more 
before the payment is scheduled to be made. If you call, we may also 
require you to put your request in writing and get it to us within 14 
days after you call. (We will charge you [insert amount] for each stop-
payment order you give.)
    (2) Notice of varying amounts. If these regular payments may vary in 
amount, [we] [the person you are going to pay] will tell you, 10 days 
before each payment, when it will be made and how much it will be. (You 
may choose instead to get this notice only when the payment would differ 
by more than a certain amount from the previous payment, or when the 
amount would fall outside certain limits that you set.)
    (3) Liability for failure to stop payment of preauthorized transfer. 
If you order us to stop one of these payments 3 business days or more 
before the transfer is scheduled, and we do not do so, we will be liable 
for your losses or damages.
    (i) Financial institution's liability (Sec. 205.7(b)(8)). If we do 
not complete a transfer to or from your account on time or in the 
correct amount according to our agreement with you, we will be liable 
for your losses or damages. However, there are some exceptions. We will 
not be liable, for instance:
    (1) If, through no fault of ours, you do not have enough money in 
your account to make the transfer.
    (2) If the transfer would go over the credit limit on your overdraft 
line.
    (3) If the automated teller machine where you are making the 
transfer does not have enough cash.
    (4) If the [terminal] [system] was not working properly and you knew 
about the breakdown when you started the transfer.
    (5) If circumstances beyond our control (such as fire or flood) 
prevent the transfer, despite reasonable precautions that we have taken.
    (6) There may be other exceptions stated in our agreement with you.

  A-3--MODEL FORMS FOR ERROR RESOLUTION NOTICE (Secs. 205.7(b)(10) and 
                                205.8(b))

    (a) Initial and annual error resolution notice (Secs. 205.7(b)(10) 
and 205.8(b)). In Case of Errors or Questions About Your Electronic 
Transfers, Telephone us at [insert telephone number] or Write us at 
[insert address] as soon as you can, if you think your statement or 
receipt is wrong or if you need more information about a transfer listed 
on the statement or receipt. We must hear from you no later than 60 days 
after we sent the FIRST statement on which the problem or error 
appeared.
    (1) Tell us your name and account number (if any).
    (2) Describe the error or the transfer you are unsure about, and 
explain as clearly as you can why you believe it is an error or why you 
need more information.
    (3) Tell us the dollar amount of the suspected error.
    If you tell us orally, we may require that you send us your 
complaint or question in writing within 10 business days.
    We will tell you the results of our investigation within 10 business 
days after we hear from you and will correct any error promptly. If we 
need more time, however, we may take up to 45 days to investigate your 
complaint or question. If we decide to do

[[Page 141]]

this, we will credit your account within 10 business days for the amount 
you think is in error, so that you will have the use of the money during 
the time it takes us to complete our investigation. If we ask you to put 
your complaint or question in writing and we do not receive it within 10 
business days, we may not credit your account.
    If we decide that there was no error, we will send you a written 
explanation within three business days after we finish our 
investigation. You may ask for copies of the documents that we used in 
our investigation.
    (b) Error resolution notice on periodic statements Sec. 205.8(b). In 
Case of Errors or Questions About Your Electronic Transfers, Telephone 
us at [insert telephone number] or Write us at [insert address] as soon 
as you can, if you think your statement or receipt is wrong or if you 
need more information about a transfer on the statement or receipt. We 
must hear from you no later than 60 days after we sent you the FIRST 
statement on which the error or problem appeared.
    (1) Tell us your name and account number (if any).
    (2) Describe the error or the transfer you are unsure about, and 
explain as clearly as you can why you believe it is an error or why you 
need more information.
    (3) Tell us the dollar amount of the suspected error.
    We will investigate your complaint and will correct any error 
promptly. If we take more than 10 business days to do this, we will 
credit your account for the amount you think is in error, so that you 
will have the use of the money during the time it takes us to complete 
our investigation.

           A-4--Model Form For Service-providing Institutions 
                         (Sec. 205.14(b)(1)(ii))

    ALL QUESTIONS ABOUT TRANSACTIONS MADE WITH YOUR (NAME OF CARD) CARD 
MUST BE DIRECTED TO US (NAME OF SERVICE PROVIDER), AND NOT TO THE BANK 
OR OTHER FINANCIAL INSTITUTION WHERE YOU HAVE YOUR ACCOUNT. We are 
responsible for the [name of service] service and for resolving any 
errors in transactions made with your [name of card] card.
    We will not send you a periodic statement listing transactions that 
you make using your [name of card] card. The transactions will appear 
only on the statement issued by your bank or other financial 
institution. SAVE THE RECEIPTS YOU ARE GIVEN WHEN YOU USE YOUR [NAME OF 
CARD] CARD, AND CHECK THEM AGAINST THE ACCOUNT STATEMENT YOU RECEIVE 
FROM YOUR BANK OR OTHER FINANCIAL INSTITUTION. If you have any questions 
about one of these transactions, call or write us at [telephone number 
and address] [the telephone number and address indicated below].
    IF YOUR [NAME OF CARD] CARD IS LOST OR STOLEN, NOTIFY US AT ONCE by 
calling or writing to us at [telephone number and address].

  A-5--Model Forms For Government Agencies (Sec. 205.15(d)(1) and (2))

    (1) Disclosure by government agencies of information about obtaining 
account balances and account histories Sec. 205.15(d)(1) (i) and (ii). 
You may obtain information about the amount of benefits you have 
remaining by calling [telephone number]. That information is also 
available [on the receipt you get when you make a transfer with your 
card at (an ATM) (a POS terminal)] [when you make a balance inquiry at 
an ATM][when you make a balance inquiry at specified locations].
    You also have the right to receive a written summary of transactions 
for the 60 days preceding your request by calling [telephone number]. 
[Optional: Or you may request the summary by contacting your 
caseworker.]
    (2) Disclosure of error resolution procedures for government 
agencies that do not provide periodic statements (Sec. 205.15 
(d)(1)(iii) and (d)(2)). In Case of Errors or Questions About Your 
Electronic Transfers Telephone us at [telephone number] or Write us at 
[address] as soon as you can, if you think an error has occurred in your 
[EBT][agency's name for program] account. We must hear from you no later 
than 60 days after you learn of the error. You will need to tell us:
     Your name and [case] [file] number.
     Why you believe there is an error, and the dollar amount 
involved.
     Approximately when the error took place.
    If you tell us orally, we may require that you send us your 
complaint or question in writing within 10 business days. We will 
generally complete our investigation within 10 business days and correct 
any error promptly. In some cases, an investigation may take longer, but 
you will have the use of the funds in question after the 10 business 
days. If we ask you to put your complaint or question in writing and we 
do not receive it within 10 business days, we may not credit your 
account during the investigation.
    For errors involving transactions at point-of-sale terminals in food 
stores, the periods referred to above are 20 business days instead of 10 
business days.
    If we decide that there was no error, we will send you a written 
explanation within three business days after we finish our 
investigation. You may ask for copies of the documents that we used in 
our investigation.
    If you need more information about our error resolution procedures, 
call us at [telephone number][the telephone number shown above].

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          Appendix B to Part 205--Federal Enforcement Agencies

    The following list indicates which Federal agency enforces 
Regulation E (12 CFR part 205) for particular classes of institutions. 
Any questions concerning compliance by a particular institution should 
be directed to the appropriate enforcing 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 
where 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 25(a) of 
                         the Federal Reserve Act

    Federal Reserve Bank serving the District in which the institution 
is located.

   Nonmember 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

    Division of Consumer Affairs, National Credit Union Administration, 
1775 Duke Street, Alexandria, Virginia 22314-3428

                              Air Carriers

    Assistant General Counsel for Aviation Enforcement and Proceedings, 
Department of Transportation, 400 Seventh Street, S.W., Washington, D.C. 
20590.

                           Brokers and Dealers

    Division of Market Regulation, Securities and Exchange Commission, 
Washington, D.C. 20549.

     Retailers, Consumer Finance Companies, Certain Other Financial 
             Institutions, and all others not covered above

    Federal Trade Commission, Electronic Fund Transfers, Washington, 
D.C. 20580.

        Appendix C to Part 205--Issuance of Staff Interpretations

                     Official Staff Interpretations

    Pursuant to section 915(d) of the act, the Board has designated the 
director and other officials of the Division of Consumer and Community 
Affairs as officials ``duly authorized'' to issue, at their discretion, 
official staff interpretations of this part. Except in unusual 
circumstances, such interpretations will not be issued separately but 
will be incorporated in an official commentary to this part, 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, 
D.C. 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 financial 
institutions' forms or statements. This restriction does not apply to 
forms or statements whose use is required or sanctioned by a government 
agency.

        Supplement I to Part 205--Official Staff Interpretations

                       Section 205.2--Definitions

                           2(a) Access Device

    1. Examples. The term access device includes debit cards, personal 
identification numbers (PINs), telephone transfer and telephone bill 
payment codes, and other means that may be used by a consumer to 
initiate an electronic fund transfer (EFT) to or from a consumer 
account. The term does not include magnetic tape or other devices used 
internally by a financial institution to initiate electronic transfers.

                              2(b) Account

    1. Consumer asset account. The term consumer asset account includes:
    i. Club accounts, such as vacation clubs. In many cases, however, 
these accounts are exempt from the regulation under Sec. 205.3(c)(5) 
because all electronic transfers to or from the account have been 
preauthorized by the

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consumer and involve another account of the consumer at the same 
institution.
    ii. A retail repurchase agreement (repo), which is a loan made to a 
financial institution by a consumer that is collateralized by government 
or government-insured securities.
    2. Examples of accounts not covered by Regulation E (12 CFR part 
205) include:
    i. Profit-sharing and pension accounts established under a trust 
agreement, which are exempt under Sec. 205.2(b)(2).
    ii. Escrow accounts, such as those established to ensure payment of 
items such as real estate taxes, insurance premiums, or completion of 
repairs or improvements.
    iii. Accounts for accumulating funds to purchase U.S. savings bonds.

                            Paragraph 2(b)(2)

    1. Bona fide trust agreements. The term bona fide trust agreement is 
not defined by the act or regulation; therefore, financial institutions 
must look to state or other applicable law for interpretation.
    2. Custodial agreements. An account held under a custodial agreement 
that qualifies as a trust under the Internal Revenue Code, such as an 
individual retirement account, is considered to be held under a trust 
agreement for purposes of Regulation E.

                            2(d) Business Day

    1. Duration. A business day includes the entire 24-hour period 
ending at midnight, and a notice required by the regulation is effective 
even if given outside normal business hours. The regulation does not 
require, however, that a financial institution make telephone lines 
available on a 24-hour basis.
    2. Substantially all business functions. ``Substantially all 
business functions'' include both the public and the back-office 
operations of the institution. For example, if the offices of an 
institution are open on Saturdays for handling some consumer 
transactions (such as deposits, withdrawals, and other teller 
transactions), but not for performing internal functions (such as 
investigating account errors), then Saturday is not a business day for 
that institution. In this case, Saturday does not count toward the 
business-day standard set by the regulation for reporting lost or stolen 
access devices, resolving errors, etc.
    3. Short hours. A financial institution may determine, at its 
election, whether an abbreviated day is a business day. For example, if 
an institution engages in substantially all business functions until 
noon on Saturdays instead of its usual 3:00 p.m. closing, it may 
consider Saturday a business day.
    4. Telephone line. If a financial institution makes a telephone line 
available on Sundays for reporting the loss or theft of an access 
device, but performs no other business functions, Sunday is not a 
business day under the ``substantially all business functions'' 
standard.

                        2(h) Electronic Terminal

    1. Point-of-sale (POS) payments initiated by telephone. Because the 
term electronic terminal excludes a telephone operated by a consumer, a 
financial institution need not provide a terminal receipt when:
    i. A consumer uses a debit card at a public telephone to pay for the 
call.
    ii. A consumer initiates a transfer by a means analogous in function 
to a telephone, such as by home banking equipment or a facsimile 
machine.
    2. POS terminals. A POS terminal that captures data electronically, 
for debiting or crediting to a consumer's asset account, is an 
electronic terminal for purposes of Regulation E if a debit card is used 
to initiate the transaction.
    3. Teller-operated terminals. A terminal or other computer equipment 
operated by an employee of a financial institution is not an electronic 
terminal for purposes of the regulation. However, transfers initiated at 
such terminals by means of a consumer's access device (using the 
consumer's PIN, for example) are EFTs and are subject to other 
requirements of the regulation. If an access device is used only for 
identification purposes or for determining the account balance, the 
transfers are not EFTs for purposes of the regulation.

               2(m) Unauthorized Electronic Fund Transfer

    1. Transfer by institution's employee. A consumer has no liability 
for erroneous or fraudulent transfers initiated by an employee of a 
financial institution.
    2. Authority. If a consumer furnishes an access device and grants 
authority to make transfers to a person (such as a family member or co-
worker) who exceeds the authority given, the consumer is fully liable 
for the transfers unless the consumer has notified the financial 
institution that transfers by that person are no longer authorized.
    3. Access device obtained through robbery or fraud. An unauthorized 
EFT includes a transfer initiated by a person who obtained the access 
device from the consumer through fraud or robbery.
    4. Forced initiation. An EFT at an automated teller machine (ATM) is 
an unauthorized transfer if the consumer has been induced by force to 
initiate the transfer.

                         Section 205.3--Coverage

                              3(a) General

    1. Accounts covered. The requirements of the regulation apply only 
to an account for which an agreement for EFT services to or

[[Page 144]]

from the account has been entered into between:
    i. The consumer and the financial institution (including an account 
for which an access device has been issued to the consumer, for 
example);
    ii. The consumer and a third party (for preauthorized debits or 
credits, for example), when the account-holding institution has received 
notice of the agreement and the fund transfers have begun.
    2. Automated clearing house (ACH) membership. The fact that 
membership in an ACH requires a financial institution to accept EFTs to 
accounts at the institution does not make every account of that 
institution subject to the regulation.
    3. Foreign applicability. Regulation E applies to all persons 
(including branches and other offices of foreign banks located in the 
United States) that offer EFT services to residents of any state, 
including resident aliens. It covers any account located in the United 
States through which EFTs are offered to a resident of a state. This is 
the case whether or not a particular transfer takes place in the United 
States and whether or not the financial institution is chartered in the 
United States or a foreign country. The regulation does not apply to a 
foreign branch of a U.S. bank unless the EFT services are offered in 
connection with an account in a state as defined in Sec. 205.2(l).

                      3(b) Electronic Fund Transfer

    1. Fund transfers covered. The term electronic fund transfer 
includes:
    i. A deposit made at an ATM or other electronic terminal (including 
a deposit in cash or by check) provided a specific agreement exists 
between the financial institution and the consumer for EFTs to or from 
the account to which the deposit is made.
    ii. A transfer sent via ACH. For example, social security benefits 
under the U.S. Treasury's direct-deposit program are covered, even if 
the listing of payees and payment amounts reaches the account-holding 
institution by means of a computer printout from a correspondent bank.
    iii. A preauthorized transfer credited or debited to an account in 
accordance with instructions contained on magnetic tape, even if the 
financial institution holding the account sends or receives a composite 
check.
    iv. A transfer from the consumer's account resulting from a debit-
card transaction at a merchant location, even if no electronic terminal 
is involved at the time of the transaction, if the consumer's asset 
account is subsequently debited for the amount of the transfer.
    2. Fund transfers not covered. The term electronic fund transfer 
does not include:
    i. A payment that does not debit or credit a consumer asset account, 
such as a payroll allotment to a creditor to repay a credit extension 
(which is deducted from salary).
    ii. A payment made in currency by a consumer to another person at an 
electronic terminal.
    iii. A preauthorized check drawn by the financial institution on the 
consumer's account (such as an interest or other recurring payment to 
the consumer or another party), even if the check is computer-generated.

                      3(c) Exclusions From Coverage

           Paragraph 3(c)(2)--Check Guarantee or Authorization

    1. Memo posting. Under a check guarantee or check authorization 
service, debiting of the consumer's account occurs when the check or 
draft is presented for payment. These services are exempt from coverage, 
even when a temporary hold on the account is memo-posted electronically 
at the time of authorization.

           Paragraph 3(c)(3)--Wire or Other Similar Transfers

    1. Fedwire and ACH. If a financial institution makes a fund transfer 
to a consumer's account after receiving funds through Fedwire or a 
similar network, the transfer by ACH is covered by the regulation even 
though the Fedwire or network transfer is exempt.
    2. Article 4A. Financial institutions that offer telephone-initiated 
Fedwire payments are subject to the requirements of UCC section 4A-202, 
which encourages verification of Fedwire payment orders pursuant to a 
security procedure established by agreement between the consumer and the 
receiving bank. These transfers are not subject to Regulation E and the 
agreement is not considered a telephone plan if the service is offered 
separately from a telephone bill-payment or other prearranged plan 
subject to Regulation E. The Board's Regulation J (12 CFR part 210) 
specifies the rules applicable to funds handled by Federal Reserve 
Banks. To ensure that the rules for all fund transfers through Fedwire 
are consistent, the Board used its preemptive authority under UCC 
section 4A-107 to determine that subpart B of Regulation J (12 CFR part 
210), including the provisions of Article 4A, applies to all fund 
transfers through Fedwire, even if a portion of the fund transfer is 
governed by the EFTA. The portion of the fund transfer that is governed 
by the EFTA is not governed by subpart B of Regulation J (12 CFR part 
210).
    3. Similar fund transfer systems. Fund transfer systems that are 
similar to Fedwire include the Clearing House Interbank Payments System 
(CHIPS), Society for Worldwide Interbank Financial Telecommunication 
(SWIFT), Telex, and transfers made on the books of correspondent banks.

[[Page 145]]

         Paragraph 3(c)(4)--Securities and Commodities Transfers

    1. Coverage. The securities exemption applies to securities and 
commodities that may be sold by a registered broker-dealer or futures 
commission merchant, even when the security or commodity itself is not 
regulated by the Securities and Exchange Commission or the Commodity 
Futures Trading Commission.
    2. Example of exempt transfer. The exemption applies to a transfer 
involving a transfer initiated by a telephone order to a stockbroker to 
buy or sell securities or to exercise a margin call.
    3. Examples of nonexempt transfers. The exemption does not apply to 
a transfer involving:
    i. A debit card or other access device that accesses a securities or 
commodities account such as a money market mutual fund and that the 
consumer uses for purchasing goods or services or for obtaining cash.
    ii. A payment of interest or dividends into the consumer's account 
(for example, from a brokerage firm or from a Federal Reserve Bank for 
government securities).

  Paragraph 3(c)(5)--Automatic Transfers by Account-Holding Institution

    1. Automatic transfers exempted. The exemption applies to:
    i. Electronic debits or credits to consumer accounts for check 
charges, stop-payment charges, NSF charges, overdraft charges, 
provisional credits, error adjustments, and similar items that are 
initiated automatically on the occurrence of certain events.
    ii. Debits to consumer accounts for group insurance available only 
through the financial institution and payable only by means of an 
aggregate payment from the institution to the insurer.
    iii. EFTs between a thrift institution and its paired commercial 
bank in the state of Rhode Island, which are deemed under state law to 
be intra-institutional.
    iv. Automatic transfers between a consumer's accounts within the 
same financial institution, even if the account holders on the two 
accounts are not identical.
    2. Automatic transfers not exempted. Transfers between accounts of 
the consumer at affiliated institutions (such as between a bank and its 
subsidiary or within a holding company) are not intra-institutional 
transfers, and thus do not qualify for the exemption.

            Paragraph 3(c)(6)--Telephone-Initiated Transfers

    1. Written plan or agreement. A transfer that the consumer initiates 
by telephone is covered only if the transfer is made under a written 
plan or agreement between the consumer and the financial institution 
making the transfer. The following do not, by themselves, constitute a 
written plan or agreement:
    i. A hold-harmless agreement on a signature card that protects the 
institution if the consumer requests a transfer.
    ii. A legend on a signature card, periodic statement, or passbook 
that limits the number of telephone-initiated transfers the consumer can 
make from a savings account because of reserve requirements under 
Regulation D (12 CFR part 204).
    iii. An agreement permitting the consumer to approve by telephone 
the rollover of funds at the maturity of an instrument.
    2. Examples of covered transfers. When a written plan or agreement 
has been entered into, a transfer initiated by a telephone call from a 
consumer is covered even though:
    i. An employee of the financial institution completes the transfer 
manually (for example, by means of a debit memo or deposit slip).
    ii. The consumer is required to make a separate request for each 
transfer.
    iii. The consumer uses the plan infrequently.
    iv. The consumer initiates the transfer via a facsimile machine.

                  Paragraph 3(c)(7)--Small Institutions

    1. Coverage. This exemption is limited to preauthorized transfers; 
institutions that offer other EFTs must comply with the applicable 
sections of the regulation as to such services. The preauthorized 
transfers remain subject to sections 913, 915, and 916 of the act and 
Sec. 205.10(e), and are therefore exempt from UCC Article 4A.

Section 205.4--General Disclosure Requirements; Jointly Offered Services

                        4(a) Form of Disclosures

    1. General. Although no particular rules govern type size, number of 
pages, or the relative conspicuousness of various terms, the disclosures 
must be in a clear and readily understandable written form that the 
consumer may retain. Numbers or codes are considered readily 
understandable if explained elsewhere on the disclosure form.
    2. Foreign language disclosures. Disclosures may be made in 
languages other than English, provided they are available in English 
upon request.

                Section 205.5--Issuance of Access Devices

    1. Coverage. The provisions of this section limit the circumstances 
under which a financial institution may issue an access device to a 
consumer. Making an additional account accessible through an existing 
access device is equivalent to issuing an access device and is subject 
to the limitations of this section.

[[Page 146]]

                         5(a) Solicited Issuance

                            Paragraph 5(a)(1)

    1. Joint account. For a joint account, a financial institution may 
issue an access device to each account holder if the requesting holder 
specifically authorizes the issuance.
    2. Permissible forms of request. The request for an access device 
may be written or oral (for example, in response to a telephone 
solicitation by a card issuer).

                            Paragraph 5(a)(2)

    1. One-for-one rule. In issuing a renewal or substitute access 
device, a financial institution may not provide additional devices. For 
example, only one new card and PIN may replace a card and PIN previously 
issued. If the replacement device permits either additional or fewer 
types of electronic fund transfer services, a change-in-terms notice or 
new disclosures are required.
    2. Renewal or substitution by a successor institution. A successor 
institution is an entity that replaces the original financial 
institution (for example, following a corporate merger or acquisition) 
or that acquires accounts or assumes the operation of an EFT system.

                        5(b) Unsolicited Issuance

    1. Compliance. A financial institution may issue an unsolicited 
access device (such as the combination of a debit card and PIN) if the 
institution's ATM system has been programmed not to accept the access 
device until after the consumer requests and the institution validates 
the device. Merely instructing a consumer not to use an unsolicited 
debit card and PIN until after the institution verifies the consumer's 
identity does not comply with the regulation.
    2. PINS. A financial institution may impose no liability on a 
consumer for unauthorized transfers involving an unsolicited access 
device until the device becomes an ``accepted access device'' under the 
regulation. A card and PIN combination may be treated as an accepted 
access device once the consumer has used it to make a transfer.
    3. Functions of PIN. If an institution issues a PIN at the 
consumer's request, the issuance may constitute both a way of validating 
the debit card and the means to identify the consumer (required as a 
condition of imposing liability for unauthorized transfers).
    4. Verification of identity. To verify the consumer's identity, a 
financial institution may use any reasonable means, such as a 
photograph, fingerprint, personal visit, signature comparison, or 
personal information about the consumer. However, even if reasonable 
means were used, if an institution fails to verify correctly the 
consumer's identity and an imposter succeeds in having the device 
validated, the consumer is not liable for any unauthorized transfers 
from the account.

     Section 205.6--Liability of Consumer for Unauthorized Transfers

                      6(a) Conditions for Liability

    1. Means of identification. A financial institution may use various 
means for identifying the consumer to whom the access device is issued, 
including but not limited to:
    i. Electronic or mechanical confirmation (such as a PIN).
    ii. Comparison of the consumer's signature, fingerprint, or 
photograph.
    2. Multiple users. When more than one access device is issued for an 
account, the financial institution may, but need not, provide a separate 
means to identify each user of the account.

                 6(b) Limitations on Amount of Liability

    1. Application of liability provisions. There are three possible 
tiers of consumer liability for unauthorized EFTs depending on the 
situation. A consumer may be liable for (1) up to $50; (2) up to $500; 
or (3) an unlimited amount depending on when the unauthorized EFT 
occurs. More than one tier may apply to a given situation because each 
corresponds to a different (sometimes overlapping) time period or set of 
conditions.
    2. Consumer negligence. Negligence by the consumer cannot be used as 
the basis for imposing greater liability than is permissible under 
Regulation E. Thus, consumer behavior that may constitute negligence 
under state law, such as writing the PIN on a debit card or on a piece 
of paper kept with the card, does not affect the consumer's liability 
for unauthorized transfers. (However, refer to comment 2(m)-2 regarding 
termination of the authority of given by the consumer to another 
person.)
    3. Limits on liability. The extent of the consumer's liability is 
determined solely by the consumer's promptness in reporting the loss or 
theft of an access device. Similarly, no agreement between the consumer 
and an institution may impose greater liability on the consumer for an 
unauthorized transfer than the limits provided in Regulation E.

                 Paragraph 6(b)(1)--Timely Notice Given

    1. $50 limit applies. The basic liability limit is $50. For example, 
the consumer's card is lost or stolen on Monday and the consumer learns 
of the loss or theft on Wednesday. If the consumer notifies the 
financial institution within two business days of learning of the loss 
or theft (by midnight Friday), the consumer's liability is limited to 
$50 or the amount of the unauthorized transfers that occurred before 
notification, whichever is less.

[[Page 147]]

    2. Knowledge of loss or theft of access device. The fact that a 
consumer has received a periodic statement that reflects unauthorized 
transfers may be a factor in determining whether the consumer had 
knowledge of the loss or theft, but cannot be deemed to represent 
conclusive evidence that the consumer had such knowledge.

               Paragraph 6(b)(2)--Timely Notice Not Given

    1. $500 limit applies. The second tier of liability is $500. For 
example, the consumer's card is stolen on Monday and the consumer learns 
of the theft that same day. The consumer reports the theft on Friday. 
The $500 limit applies because the consumer failed to notify the 
financial institution within two business days of learning of the theft 
(which would have been by midnight Wednesday). How much the consumer is 
actually liable for, however, depends on when the unauthorized transfers 
take place. In this example, assume a $100 unauthorized transfer was 
made on Tuesday and a $600 unauthorized transfer on Thursday. Because 
the consumer is liable for the amount of the loss that occurs within the 
first two business days (but no more than $50), plus the amount of the 
unauthorized transfers that occurs after the first two business days and 
before the consumer gives notice, the consumer's total liability is $500 
($50 of the $100 transfer plus $450 of the $600 transfer, in this 
example). But if $600 was taken on Tuesday and $100 on Thursday, the 
consumer's maximum liability would be $150 ($50 of the $600 plus $100).

     Paragraph 6(b)(3)--Periodic Statement; Timely Notice Not Given

    1. Unlimited liability applies. The standard of unlimited liability 
applies if unauthorized transfers appear on a periodic statement, and 
may apply in conjunction with the first two tiers of liability. If a 
periodic statement shows an unauthorized transfer made with a lost or 
stolen debit card, the consumer must notify the financial institution 
within 60 calendar days after the periodic statement was sent; 
otherwise, the consumer faces unlimited liability for all unauthorized 
transfers made after the 60-day period. The consumer's liability for 
unauthorized transfers before the statement is sent, and up to 60 days 
following, is determined based on the first two tiers of liability: up 
to $50 if the consumer notifies the financial institution within two 
business days of learning of the loss or theft of the card and up to 
$500 if the consumer notifies the institution after two business days of 
learning of the loss or theft.
    2. Transfers not involving access device. The first two tiers of 
liability do not apply to unauthorized transfers from a consumer's 
account made without an access device. If, however, the consumer fails 
to report such unauthorized transfers within 60 calendar days of the 
financial institution's transmittal of the periodic statement, the 
consumer may be liable for any transfers occurring after the close of 
the 60 days and before notice is given to the institution. For example, 
a consumer's account is electronically debited for $200 without the 
consumer's authorization and by means other than the consumer's access 
device. If the consumer notifies the institution within 60 days of the 
transmittal of the periodic statement that shows the unauthorized 
transfer, the consumer has no liability. However, if in addition to the 
$200, the consumer's account is debited for a $400 unauthorized transfer 
on the 61st day and the consumer fails to notify the institution of the 
first unauthorized transfer until the 62nd day, the consumer may be 
liable for the full $400.

               Paragraph 6(b)(4)--Extension of Time Limits

    1. Extenuating circumstances. Examples of circumstances that require 
extension of the notification periods under this section include the 
consumer's extended travel or hospitalization.

           Paragraph 6(b)(5)--Notice to Financial Institution

    1. Receipt of notice. A financial institution is considered to have 
received notice for purposes of limiting the consumer's liability if 
notice is given in a reasonable manner, even if the consumer notifies 
the institution but uses an address or telephone number other than the 
one specified by the institution.
    2. Notice by third party. Notice to a financial institution by a 
person acting on the consumer's behalf is considered valid under this 
section. For example, if a consumer is hospitalized and unable to report 
the loss or theft of an access device, notice is considered given when 
someone acting on the consumer's behalf notifies the bank of the loss or 
theft. A financial institution may require appropriate documentation 
from the person representing the consumer to establish that the person 
is acting on the consumer's behalf.
    3. Content of notice. Notice to a financial institution is 
considered given when a consumer takes reasonable steps to provide the 
institution with the pertinent account information. Even when the 
consumer is unable to provide the account number or the card number in 
reporting a lost or stolen access device or an unauthorized transfer, 
the notice effectively limits the consumer's liability if the consumer 
otherwise identifies sufficiently the account in question. For example, 
the consumer may identify the account by the name on the account and the 
type of account in question.

[[Page 148]]

                   Section 205.7--Initial Disclosures

                       7(a) Timing of Disclosures

    1. Early disclosures. Disclosures given by a financial institution 
earlier than the regulation requires (for example, when the consumer 
opens a checking account) need not be repeated when the consumer later 
enters into an agreement with a third party who will initiate 
preauthorized transfers to or from the consumer's account, unless the 
terms and conditions differ from those that the institution previously 
disclosed. On the other hand, if an agreement is directly between the 
consumer and the account-holding institution, disclosures must be given 
in close proximity to the event requiring disclosure, for example, when 
the consumer contracts for a new service.
    2. Lack of prenotification of direct deposit. In some instances, 
before direct deposit of government payments such as Social Security 
takes place, the consumer and the financial institution both will 
complete Form 1199A (or a comparable form providing notice to the 
institution) and the institution can make disclosures at that time. If 
an institution has not received advance notice that direct deposits are 
to be made to a consumer's account, the institution must provide the 
required disclosures as soon as reasonably possible after the first 
direct deposit is made, unless the institution has previously given 
disclosures.
    3. Addition of new accounts. If a consumer opens a new account 
permitting EFTs at a financial institution, and the consumer already has 
received Regulation E disclosures for another account at that 
institution, the institution need only disclose terms and conditions 
that differ from those previously given.
    4. Addition of EFT services. If an EFT service is added to a 
consumer's account and is subject to terms and conditions different from 
those described in the initial disclosures, disclosures for the new 
service are required. The disclosures must be provided when the consumer 
contracts for the new service or before the first EFT is made using the 
new service.
    5. Addition of service in interchange systems. If a financial 
institution joins an interchange or shared network system (which 
provides access to terminals operated by other institutions), 
disclosures are required for additional EFT services not previously 
available to consumers if the terms and conditions differ from those 
previously disclosed.
    6. Disclosures covering all EFT services offered. An institution may 
provide disclosures covering all EFT services that it offers, even if 
some consumers have not arranged to use all services.

                       7(b) Content of Disclosures

                Paragraph 7(b)(1)--Liability of Consumer

    1. No liability imposed by financial institution. If a financial 
institution chooses to impose zero liability for unauthorized EFTs, it 
need not provide the liability disclosures. If the institution later 
decides to impose liability, however, it must first provide the 
disclosures.
    2. Preauthorized transfers. If the only EFTs from an account are 
preauthorized transfers, liability could arise if the consumer fails to 
report unauthorized transfers reflected on a periodic statement. To 
impose such liability on the consumer, the institution must have 
disclosed the potential liability and the telephone number and address 
for reporting unauthorized transfers.
    3. Additional information. At the institution's option, the summary 
of the consumer's liability may include advice on promptly reporting 
unauthorized transfers or the loss or theft of the access device.

             Paragraph 7(b)(2)--Telephone Number and Address

    1. Disclosure of telephone numbers. An institution may use the same 
or different telephone numbers in the disclosures for the purpose of:
    i. Reporting the loss or theft of an access device or possible 
unauthorized transfers;
    ii. Inquiring about the receipt of a preauthorized credit;
    iii. Stopping payment of a preauthorized debit;
    iv. Giving notice of an error.
    2. Location of telephone number. The telephone number need not be 
incorporated into the text of the disclosure; for example, the 
institution may instead insert a reference to a telephone number that is 
readily available to the consumer, such as ``Call your branch office. 
The number is shown on your periodic statement.'' However, an 
institution must provide a specific telephone number and address, on or 
with the disclosure statement, for reporting a lost or stolen access 
device or a possible unauthorized transfer.

           Paragraph 7(b)(4)--Types of Transfers; Limitations

    1. Security limitations. Information about limitations on the 
frequency and dollar amount of transfers generally must be disclosed in 
detail, even if related to security aspects of the system. If the 
confidentiality of certain details is essential to the security of an 
account or system, these details may be withheld (but the fact that 
limitations exist must still be disclosed). For example, an institution 
limits cash ATM withdrawals to $100 per day. The institution may 
disclose that daily withdrawal limitations apply and need not disclose 
that the limitations may

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not always be in force (such as during periods when its ATMs are off-
line).
    2. Restrictions on certain deposit accounts. A limitation on account 
activity that restricts the consumer's ability to make EFTs must be 
disclosed even if the restriction also applies to transfers made by 
nonelectronic means. For example, Regulation D (12 CFR Part 204) 
restricts the number of payments to third parties that may be made from 
a money market deposit account; an institution that does not execute 
fund transfers in excess of those limits must disclose the restriction 
as a limitation on the frequency of EFTs.
    3. Preauthorized transfers. Financial institutions are not required 
to list preauthorized transfers among the types of transfers that a 
consumer can make.

                         Paragraph 7(b)(5)--Fees

    1. Disclosure of EFT fees. An institution is required to disclose 
all fees for EFTs or the right to make them. Others fees (for example, 
minimum-balance fees, stop-payment fees, or account overdrafts) may, but 
need not, be disclosed (but see Regulation DD, 12 CFR Part 230. An 
institution is not required to disclose fees for inquiries made at an 
ATM since no transfer of funds is involved.
    2. Fees also applicable to non-EFT. A per-item fee for EFTs must be 
disclosed even if the same fee is imposed on nonelectronic transfers. If 
a per-item fee is imposed only under certain conditions, such as when 
the transactions in the cycle exceed a certain number, those conditions 
must be disclosed. Itemization of the various fees may be provided on 
the disclosure statement or on an accompanying document that is 
referenced in the statement.
    3. Interchange system fees. Fees paid by the account-holding 
institution to the operator of a shared or interchange ATM system need 
not be disclosed, unless they are imposed on the consumer by the 
account-holding institution. Fees for use of an ATM that are debited 
directly to the consumer's account by an institution other than the 
account-holding institution (for example, fees included in the transfer 
amount) need not be disclosed.

                   Paragraph 7(b)(9)--Confidentiality

    1. Information provided to third parties. An institution must 
describe the circumstances under which any information relating to an 
account to or from which EFTs are permitted will be made available to 
third parties, not just information concerning those EFTs. The term 
``third parties'' includes affiliates such as other subsidiaries of the 
same holding company.

                  Paragraph 7(b)(10)--Error Resolution

    1. Substantially similar. The error resolution notice must be 
substantially similar to the model form in appendix A of part 205. An 
institution may use different wording so long as the substance of the 
notice remains the same, may delete inapplicable provisions (for 
example, the requirement for written confirmation of an oral 
notification), and may substitute substantive state law requirements 
affording greater consumer protection than Regulation E.
    2. Exception from provisional crediting. To take advantage of the 
longer time periods for resolving errors under Sec. 205.11(c)(3) (for 
transfers initiated outside the United States, or resulting from POS 
debit-card transactions), a financial institution must have disclosed 
these longer time periods. Similarly, an institution that relies on the 
exception from provisional crediting in Sec. 205.11(c)(2) for accounts 
subject to Regulation T (12 CFR part 220) must disclose accordingly.

     Section 205.8--Change-in-Terms Notice; Error Resolution Notice

                       8(a) Change-in-Terms Notice

    1. Form of notice. No specific form or wording is required for a 
change-in-terms notice. The notice may appear on a periodic statement, 
or may be given by sending a copy of a revised disclosure statement, 
provided attention is directed to the change (for example, in a cover 
letter referencing the changed term).
    2. Changes not requiring notice. The following changes do not 
require disclosure:
    i. Closing some of an institution's ATMs;
    ii. Cancellation of an access device.
    3. Limitations on transfers. When the initial disclosures omit 
details about limitations because secrecy is essential to the security 
of the account or system, a subsequent increase in those limitations 
need not be disclosed if secrecy is still essential. If, however, an 
institution had no limits in place when the initial disclosures were 
given and now wishes to impose limits for the first time, it must 
disclose at least the fact that limits have been adopted. (See also 
Sec. 205.7(b)(4) and the related commentary.)
    4. Change in telephone number or address. When a financial 
institution changes the telephone number or address used for reporting 
possible unauthorized transfers, a change-in-terms notice is required 
only if the institution will impose liability on the consumer for 
unauthorized transfers under Sec. 205.6. (See also Sec. 205.6(a) and the 
related commentary.)

                      8(b) Error Resolution Notice

    1. Change between annual and periodic notice. If an institution 
switches from an annual to a periodic notice, or vice versa, the first 
notice under the new method must be sent no later than 12 months after 
the last notice sent under the old method.

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  Section 205.9--Receipts at Electronic Terminals; Periodic Statements

                  9(a) Receipts at Electronic Terminals

    1. Receipts furnished only on request. The regulation requires that 
a receipt be ``made available.'' A financial institution may program its 
electronic terminals to provide a receipt only to consumers who elect to 
receive one.
    2. Third party providing receipt. An account-holding institution may 
make terminal receipts available through third parties such as merchants 
or other financial institutions.
    3. Inclusion of promotional material. A financial institution may 
include promotional material on receipts if the required information is 
set forth clearly (for example, by separating it from the promotional 
material). In addition, a consumer may not be required to surrender the 
receipt or that portion containing the required disclosures in order to 
take advantage of a promotion.
    4. Transfer not completed. The receipt requirement does not apply to 
a transfer that is initiated but not completed (for example, if the ATM 
is out of currency or the consumer decides not to complete the 
transfer).
    5. Receipts not furnished due to inadvertent error. If a receipt is 
not provided to the consumer because of a bona fide unintentional error, 
such as when a terminal runs out of paper or the mechanism jams, no 
violation results if the financial institution maintains procedures 
reasonably adapted to avoid such occurrences.
    6. Multiple transfers. If the consumer makes multiple transfers at 
the same time, the financial institution may document them on a single 
or on separate receipts.

                        Paragraph 9(a)(1)--Amount

    1. Disclosure of transaction fee. The required display of a fee 
amount on or at the terminal may be accomplished by displaying the fee 
on a sign at the terminal or on the terminal screen for a reasonable 
duration. Displaying the fee on a screen provides adequate notice, as 
long as consumers are given the option to cancel the transaction after 
receiving notice of a fee.

                         Paragraph 9(a)(2)--Date

    1. Calendar date. The receipt must disclose the calendar date on 
which the consumer uses the electronic terminal. An accounting or 
business date may be disclosed in addition if the dates are clearly 
distinguished.

                         Paragraph 9(a)(3)--Type

    1. Identifying transfer and account. Examples identifying the type 
of transfer and the type of the consumer's account include ``withdrawal 
from checking,'' ``transfer from savings to checking,'' or ``payment 
from savings.''
    2. Exception. Identification of an account is not required when the 
consumer can access only one asset account at a particular time or 
terminal, even if the access device can normally be used to access more 
than one account. For example, the consumer may be able to access only 
one particular account at terminals not operated by the account-holding 
institution, or may be able to access only one particular account when 
the terminal is off-line. The exception is available even if, in 
addition to accessing one asset account, the consumer also can access a 
credit line.
    3. Access to multiple accounts. If the consumer can use an access 
device to make transfers to or from different accounts of the same type, 
the terminal receipt must specify which account was accessed, such as 
``withdrawal from checking I'' or ``withdrawal from checking II.'' If 
only one account besides the primary checking account can be debited, 
the receipt can identify the account as ``withdrawal from other 
account.''
    4. Generic descriptions. Generic descriptions may be used for 
accounts that are similar in function, such as share draft or NOW 
accounts and checking accounts. In a shared system, for example, when a 
credit union member initiates transfers to or from a share draft account 
at a terminal owned or operated by a bank, the receipt may identify a 
withdrawal from the account as a ``withdrawal from checking.''
    5. Point-of-sale transactions. There is no prescribed terminology 
for identifying a transfer at a merchant's POS terminal. A transfer may 
be identified, for example, as a purchase, a sale of goods or services, 
or a payment to a third party. When a consumer obtains cash from a POS 
terminal in addition to purchasing goods, or obtains cash only, the 
documentation need not differentiate the transaction from one involving 
the purchase of goods.

                  Paragraph 9(a)(5)--Terminal Location

    1. Location code. A code or terminal number identifying the terminal 
where the transfer is initiated may be given as part of a transaction 
code.
    2. Omission of city name. The city may be omitted if the generally 
accepted name (such as a branch name) contains the city name.

                          Paragraph 9(a)(5)(i)

    1. Street address. The address should include number and street (or 
intersection); the number (or intersecting street) may be omitted if the 
street alone uniquely identifies the terminal location.

                          Paragraph 9(a)(5)(ii)

    1. Generally accepted name. Examples of a generally accepted name 
for a specific location include a branch of the financial institution, a 
shopping center, or an airport.

[[Page 151]]

                         Paragraph 9(a)(5)(iii)

    1. Name of owner or operator of terminal. Examples of an owner or 
operator of a terminal are a financial institution or a retail merchant.

                          Paragraph 9(a)(5)(iv)

    1. Omission of a state. A state may be omitted from the location 
information on the receipt if:
    i. All the terminals owned or operated by the financial institution 
providing the statement (or by the system in which it participates) are 
located in that state, or
    ii. All transfers occur at terminals located within 50 miles of the 
financial institutions's main office.
    2. Omission of a city and state. A city and state may be omitted if 
all the terminals owned or operated by the financial institution 
providing the statement (or by the system in which it participates) are 
located in the same city.

                 Paragraph 9(a)(6)--Third Party Transfer

    1. Omission of third-party name. The receipt need not disclose the 
third-party name if the name is provided by the consumer in a form that 
is not machine readable (for example, if the consumer indicates the 
payee by depositing a payment stub into the ATM). If, on the other hand, 
the consumer keys in the identity of the payee, the receipt must 
identify the payee by name or by using a code that is explained 
elsewhere on the receipt.
    2. Receipt as proof of payment. Documentation required under the 
regulation constitutes prima facie proof of a payment to another person, 
except in the case of a terminal receipt documenting a deposit.

                        9(b) Periodic Statements

    1. Periodic cycles. Periodic statements may be sent on a cycle that 
is shorter than monthly. The statements must correspond to periodic 
cycles that are reasonably equal, that is, do not vary by more than four 
days from the regular cycle. The requirement of reasonably equal cycles 
does not apply when an institution changes cycles for operational or 
other reasons, such as to establish a new statement day or date.
    2. Interim statements. Generally, a financial institution must 
provide periodic statements for each monthly cycle in which an EFT 
occurs, and at least quarterly if a transfer has not occurred. Where 
EFTs occur between regularly-scheduled cycles, interim statements must 
be provided. For example, if an institution issues quarterly statements 
at the end of March, June, September and December, and the consumer 
initiates an EFT in February, an interim statement for February must be 
provided. If an interim statement contains interest or rate information, 
the institution must comply with Regulation DD, 12 CFR 230.6.
    3. Inactive accounts. A financial institution need not send 
statements to consumers whose accounts are inactive as defined by the 
institution.
    4. Customer pickup. A financial institution may permit, but may not 
require, consumers to call for their periodic statements.
    5. Periodic statements limited to EFT activity. A financial 
institution that uses a passbook as the primary means for displaying 
account activity, but also allows the account to be debited 
electronically, may provide a periodic statement requirement that 
reflects only the EFTs and other required disclosures (such as charges, 
account balances, and address and telephone number for inquiries). (See 
Sec. 205.9(c)(1)(i) for the exception applicable to preauthorized 
transfers for passbook accounts.)
    6. Codes and accompanying documents. To meet the documentation 
requirements for periodic statements, a financial institution may:
    i. Include copies of terminal receipts to reflect transfers 
initiated by the consumer at electronic terminals;
    ii. Enclose posting memos, deposit slips, and other documents that, 
together with the statement, disclose all the required information;
    iii. Use codes for names of third parties or terminal locations and 
explain the information to which the codes relate on an accompanying 
document.

               Paragraph 9(b)(1)--Transaction Information

    1. Information obtained from others. While financial institutions 
must maintain reasonable procedures to ensure the integrity of data 
obtained from another institution, a merchant, or other third parties, 
verification of each transfer that appears on the periodic statement is 
not required.

                          Paragraph 9(b)(1)(i)

    1. Incorrect deposit amount. If a financial institution determines 
that the amount actually deposited at an ATM is different from the 
amount entered by the consumer, the institution need not immediately 
notify the consumer of the discrepancy. The periodic statement 
reflecting the deposit may show either the correct amount of the deposit 
or the amount entered by the consumer along with the institution's 
adjustment.

                         Paragraph 9(b)(1)(iii)

    1. Type of transfer. There is no prescribed terminology for 
describing a type of transfer. Placement of the amount of the transfer 
in the debit or the credit column is sufficient if other information on 
the statement, such as

[[Page 152]]

a terminal location or third-party name, enables the consumer to 
identify the type of transfer.

                          Paragraph 9(b)(1)(iv)

    1. Nonproprietary terminal in network. An institution need not 
reflect on the periodic statement the street addresses, identification 
codes, or terminal numbers for transfers initiated in a shared or 
interchange system at a terminal operated by an institution other than 
the account-holding institution. The statement must, however, specify 
the entity that owns or operates the terminal, plus the city and state.

                          Paragraph 9(b)(1)(v)

    1. Recurring payments by government agency. The third-party name for 
recurring payments from federal, state, or local governments need not 
list the particular agency. For example, ``U.S. gov't'' or ``N.Y. sal'' 
will suffice.
    2. Consumer as third-party payee. If a consumer makes an electronic 
fund transfer to another consumer, the financial institution must 
identify the recipient by name (not just by an account number, for 
example).
    3. Terminal location/third party. A single entry may be used to 
identify both the terminal location and the name of the third party to 
or from whom funds are transferred. For example, if a consumer purchases 
goods from a merchant, the name of the party to whom funds are 
transferred (the merchant) and the location of the terminal where the 
transfer is initiated will be satisfied by a disclosure such as ``XYZ 
Store, Anytown, Ohio.''
    4. Account-holding institution as third party. Transfers to the 
account-holding institution (by ATM, for example) must show the 
institution as the recipient, unless other information on the statement 
(such as, ``loan payment from checking'') clearly indicates that the 
payment was to the account-holding institution.
    5. Consistency in third-party identity. The periodic statement must 
disclose a third-party name as it appeared on the receipt, whether it 
was, for example, the ``dba'' (doing business as) name of the third 
party or the parent corporation's name.
    6. Third-party identity on deposits at electronic terminal. A 
financial institution need not identify third parties whose names appear 
on checks, drafts, or similar paper instruments deposited to the 
consumer's account at an electronic terminal.

                         Paragraph 9(b)(3)--Fees

    1. Disclosure of fees. The fees disclosed may include fees for EFTs 
and for other nonelectronic services, and both fixed fees and per-item 
fees; they may be given as a total or may be itemized in part or in 
full.
    2. Fees in interchange system. An account-holding institution must 
disclose any fees it imposes on the consumer for EFTs, including fees 
for ATM transactions in an interchange or shared ATM system. Fees for 
use of an ATM imposed on the consumer by an institution other than the 
account-holding institution and included in the amount of the transfer 
by the terminal-operating institution need not be separately disclosed 
on the periodic statement.
    3. Finance charges. The requirement to disclose any fees assessed 
against the account does not include a finance charge imposed on the 
account during the statement period.

                   Paragraph 9(b)(4)--Account Balances

    1. Opening and closing balances. The opening and closing balances 
must reflect both EFTs and other account activity.

      Paragraph 9(b)(5)--Address and Telephone Number for Inquiries

    1. Telephone number. A single telephone number, preceded by the 
``direct inquiries to'' language, will satisfy the requirements of 
Sec. 205.9(b)(5) and (6).

     Paragraph 9(b)(6)--Telephone Number for Preauthorized Transfers

    1. Telephone number. See comment 9(b)(5)-1.

   9(c) Exceptions to the Periodic Statement Requirements for Certain 
                                Accounts

    1. Transfers between accounts. The regulation provides an exception 
from the periodic statement requirement for certain intra-institutional 
transfers between a consumer's accounts. The financial institution must 
still comply with the applicable periodic statement requirements for any 
other EFTs to or from the account. For example, a Regulation E statement 
must be provided quarterly for an account that also receives payroll 
deposits electronically, or for any month in which an account is also 
accessed by a withdrawal at an ATM.

           9(d) Documentation for Foreign-Initiated Transfers

    1. Foreign-initiated transfers. An institution must make a good 
faith effort to provide all required information for foreign-initiated 
transfers. For example, even if the institution is not able to provide a 
specific terminal location, it should identify the country and city in 
which the transfer was initiated.

[[Page 153]]

                 Section 205.10--Preauthorized Transfers

           10(a) Preauthorized Transfers to Consumer's Account

           Paragraph 10(a)(1)--Notice by Financial Institution

    1. Content. No specific language is required for notice regarding 
receipt of a preauthorized transfer. Identifying the deposit is 
sufficient; however, simply providing the current account balance is 
not.
    2. Notice of credit. A financial institution may use different 
methods of notice for various types or series of preauthorized 
transfers, and the institution need not offer consumers a choice of 
notice methods.
    3. Positive notice. A periodic statement sent within two business 
days of the scheduled transfer, showing the transfer, can serve as 
notice of receipt.
    4. Negative notice. The absence of a deposit entry (on a periodic 
statement sent within two business days of the scheduled transfer date) 
will serve as negative notice.
    5. Telephone notice. If a financial institution uses the telephone 
notice option, it should be able in most instances to verify during a 
consumer's initial call whether a transfer was received. The institution 
must respond within two business days to any inquiry not answered 
immediately.
    6. Phone number for passbook accounts. The financial institution may 
use any reasonable means necessary to provide the telephone number to 
consumers with passbook accounts that can only be accessed by 
preauthorized credits and that do not receive periodic statements. For 
example, it may print the telephone number in the passbook, or include 
the number with the annual error resolution notice.
    7. Telephone line availability. To satisfy the readily-available 
standard, the financial institution must provide enough telephone lines 
so that consumers get a reasonably prompt response. The institution need 
only provide telephone service during normal business hours. Within its 
primary service area, an institution must provide a local or toll-free 
telephone number. It need not provide a toll-free number or accept 
collect long-distance calls from outside the area where it normally 
conducts business.

10(b) Written Authorization for Preauthorized Transfers From Consumer's 
                                 Account

    1. Preexisting authorizations. The financial institution need not 
require a new authorization before changing from paper-based to 
electronic debiting when the existing authorization does not specify 
that debiting is to occur electronically or specifies that the debiting 
will occur by paper means. A new authorization also is not required when 
a successor institution begins collecting payments.
    2. Authorization obtained by third party. The account-holding 
financial institution does not violate the regulation when a third-party 
payee fails to obtain the authorization in writing or fails to give a 
copy to the consumer; rather, it is the third-party payee that is in 
violation of the regulation.
    3. Written authorization for preauthorized transfers. The 
requirement that preauthorized EFTs be authorized by the consumer ``only 
by a writing'' cannot be met by a payee's signing a written 
authorization on the consumer's behalf with only an oral authorization 
from the consumer. A tape recording of a telephone conversation with a 
consumer who agrees to preauthorized debits also does not constitute 
written authorization for purposes of this provision.
    4. Use of a confirmation form. A financial institution or designated 
payee may comply with the requirements of this section in various ways. 
For example, a payee may provide the consumer with two copies of a 
preauthorization form, and ask the consumer to sign and return one and 
to retain the second copy.
    5. Similarly authenticated. An example of a consumer's authorization 
that is not in the form of a signed writing but is instead ``similarly 
authenticated'' is a consumer's authorization via a home banking system. 
To satisfy the requirements of this section, there must be some means to 
identify the consumer (such as a security code) and to make available a 
paper copy of the authorization (automatically or upon request). The 
text of the electronic authorization would have to be displayed on a 
computer screen or other visual display which enables the consumer to 
read the communication. Only the consumer may authorize the transfer and 
not, for example, a third-party merchant on behalf of the consumer.
    6. Requirements of an authorization. An authorization is valid if it 
is readily identifiable as such and the terms of the preauthorized 
transfer are clear and readily understandable.

                 10(c) Consumer's Right To Stop Payment

    1. Stop-payment order. The financial institution must honor an oral 
stop-payment order made at least three business days before a scheduled 
debit. If the debit item is resubmitted, the institution must continue 
to honor the stop-payment order (for example, by suspending all 
subsequent payments to the payee-originator until the consumer notifies 
the institution that payments should resume).
    2. Revocation of authorization. Once a financial institution has 
been notified that the consumer's authorization is no longer valid, it 
must block all future payments for the particular debit transmitted by 
the designated payee-originator. The institution

[[Page 154]]

may not wait for the payee-originator to terminate the automatic debits. 
The institution may confirm that the consumer has informed the payee-
originator of the revocation (for example, by requiring a copy of the 
consumer's revocation as written confirmation to be provided within 
fourteen days of an oral notification). If the institution does not 
receive the required written confirmation within the fourteen-day 
period, it may honor subsequent debits to the account.

               10(d) Notice of Transfers Varying in Amount

                       Paragraph 10(d)(1)--Notice

    1. Preexisting authorizations. A financial institution holding the 
consumer's account does not violate the regulation if the designated 
payee fails to provide notice of varying amounts.

                        Paragraph 10(d)(2)--Range

    1. Range. A financial institution or designated payee that elects to 
offer the consumer a specified range of amounts for debiting (in lieu of 
providing the notice of transfers varying in amount) must provide an 
acceptable range that could be anticipated by the consumer. For example, 
if the transfer is for payment of a gas bill, an appropriate range might 
be based on the highest bill in winter and the lowest bill in summer.

                          10(e) Compulsory Use

                       Paragraph 10(e)(1)--Credit

    1. Loan payments. Creditors may not require repayment of loans by 
electronic means on a preauthorized, recurring basis. A creditor may 
offer a program with a reduced annual percentage rate or other cost-
related incentive for an automatic repayment feature, provided the 
program with the automatic payment feature is not the only loan program 
offered by the creditor for the type of credit involved. Examples 
include:
    i. Mortgages with graduated payments in which a pledged savings 
account is automatically debited during an initial period to supplement 
the monthly payments made by the borrower.
    ii. Mortgage plans calling for preauthorized biweekly payments that 
are debited electronically to the consumer's account and produce a lower 
total finance charge.
    2. Overdraft. A financial institution may require the automatic 
repayment of an overdraft credit plan even if the overdraft extension is 
charged to an open-end account that may be accessed by the consumer in 
ways other than by overdrafts.

          Paragraph 10(e)(2)--Employment or Government Benefit

    1. Payroll. A financial institution (as an employer) may not require 
its employees to receive their salary by direct deposit to that same 
institution or to any other particular institution. An employer may 
require direct deposit of salary by electronic means if employees are 
allowed to choose the institution that will receive the direct deposit. 
Alternatively, an employer may give employees the choice of having their 
salary deposited at a particular institution, or receiving their salary 
by check or cash.

             Section 205.11--Procedures for Resolving Errors

                        11(a) Definition of Error

    1. Terminal location. With regard to deposits at an ATM, a 
consumer's request for the terminal location or other information 
triggers the error resolution procedures, but the financial institution 
need only provide the ATM location if it has captured that information.
    2. Verifying account deposit. If the consumer merely calls to 
ascertain whether a deposit made via ATM, preauthorized transfer, or any 
other type of EFT was credited to the account, without asserting an 
error, the error resolution procedures do not apply.
    3. Loss or theft of access device. A financial institution is 
required to comply with the error resolution procedures when a consumer 
reports the loss or theft of an access device if the consumer also 
alleges possible unauthorized use as a consequence of the loss or theft.
    4. Error asserted after account closed. The financial institution 
must comply with the error resolution procedures when a consumer 
properly asserts an error, even if the account has been closed.
    5. Request for documentation or information. A request for 
documentation or other information must be treated as an error unless it 
is clear that the consumer is requesting a duplicate copy for tax or 
other record-keeping purposes.

                   11(b) Notice of Error From Consumer

                  Paragraph 11(b)(1)--Timing; Contents

    1. Content of error notice. The notice of error is effective even if 
it does not contain the consumer's account number, so long as the 
financial institution is able to identify the account in question. For 
example, the consumer could provide a Social Security number or other 
unique means of identification.
    2. Investigation pending receipt of information. While a financial 
institution may request a written, signed statement from the consumer 
relating to a notice of error, it

[[Page 155]]

may not delay initiating or completing an investigation pending receipt 
of the statement.
    3. Statement held for consumer. When a consumer has arranged for 
periodic statements to be held until picked up, the statement for a 
particular cycle is deemed to have been transmitted on the date the 
financial institution first makes the statement available to the 
consumer.
    4. Failure to provide statement. When a financial institution fails 
to provide the consumer with a periodic statement, a request for a copy 
is governed by this section if the consumer gives notice within 60 days 
from the date on which the statement should have been transmitted.
    5. Discovery of error by institution. The error resolution 
procedures of this section apply when a notice of error is received from 
the consumer, and not when the financial institution itself discovers 
and corrects an error.
    6. Notice at particular phone number or address. A financial 
institution may require the consumer to give notice only at the 
telephone number or address disclosed by the institution, provided the 
institution maintains reasonable procedures to refer the consumer to the 
specified telephone number or address if the consumer attempts to give 
notice to the institution in a different manner.

                Paragraph 11(b)(2)--Written Confirmation

    1. Written confirmation-of-error notice. If the consumer sends a 
written confirmation of error to the wrong address, the financial 
institution must process the confirmation through normal procedures. But 
the institution need not provisionally credit the consumer's account if 
the written confirmation is delayed beyond 10 business days in getting 
to the right place because it was sent to the wrong address.

              11(c) Time Limits and Extent of Investigation

    1. Notice to consumer. Unless otherwise indicated in this section, 
the financial institution may provide the required notices to the 
consumer either orally or in writing.
    2. Written confirmation of oral notice. A financial institution must 
begin its investigation promptly upon receipt of an oral notice. It may 
not delay until it has received a written confirmation.
    3. Charges for error resolution. If a billing error occurred, 
whether as alleged or in a different amount or manner, the financial 
institution may not impose a charge related to any aspect of the error-
resolution process (including charges for documentation or 
investigation). Since the act grants the consumer error-resolution 
rights, the institution 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.
    4. Correction without investigation. A financial institution may 
make, without investigation, a final correction to a consumer's account 
in the amount or manner alleged by the consumer to be in error, but must 
comply with all other applicable requirements of Sec. 205.11.
    5. Correction notice. A financial institution may include the notice 
of correction on a periodic statement that is mailed or delivered within 
the 10-business-day or 45-calendar-day time limits and that clearly 
identifies the correction to the consumer's account. The institution 
must determine whether such a mailing will be prompt enough to satisfy 
the requirements of this section, taking into account the specific facts 
involved.
    6. Correction of an error. If the financial institution determines 
an error occurred, within either the 10-day or 45-day period, it must 
correct the error (subject to the liability provisions of Secs. 205.6 
(a) and (b)) including, where applicable, the crediting of interest and 
the refunding of any fees imposed by the institution. In a combined 
credit/EFT transaction, for example, the institution must refund any 
finance charges incurred as a result of the error. The institution need 
not refund fees that would have been imposed whether or not the error 
occurred.
    7. Extent of required investigation. A financial institution 
complies with its duty to investigate, correct, and report its 
determination regarding an error described in Sec. 205.11(a)(1)(vii) by 
transmitting the requested information, clarification, or documentation 
within the time limits set forth in Sec. 205.11(c). If the institution 
has provisionally credited the consumer's account in accordance with 
Sec. 205.11(c)(2), it may debit the amount upon transmitting the 
requested information, clarification, or documentation.

                          Paragraph 11(c)(2)(i)

    1. Compliance with all requirements. Financial institutions exempted 
from provisionally crediting a consumer's account under 
Sec. 205.11(c)(2)(i) (A) and (B) must still comply with all other 
requirements of Sec. 205.11.

              Paragraph 11(c)(3)--Extension of Time Periods

    1. POS debit card transactions. The extended deadlines for 
investigating errors resulting from POS debit card transactions apply to 
all debit card transactions, including those for cash only, at 
merchants' POS terminals, and also including mail and telephone orders. 
The deadlines do not apply to transactions at an ATM, however, even 
though the ATM may be in a merchant location.

                    Paragraph 11(c)(4)--Investigation

    1. Third parties. When information or documentation requested by the 
consumer is in

[[Page 156]]

the possession of a third party with whom the financial institution does 
not have an agreement, the institution satisfies the error resolution 
requirement by so advising the consumer within the specified time 
period.
    2. Scope of investigation. When an alleged error involves a payment 
to a third party under the financial institution's telephone bill-
payment plan, a review of the institution's own records is sufficient, 
assuming no agreement exists between the institution and the third party 
concerning the bill-payment service.
    3. POS transfers. When a consumer alleges an error involving a 
transfer to a merchant via a POS terminal, the institution must verify 
the information previously transmitted when executing the transfer. For 
example, the financial institution may request a copy of the sales 
receipt to verify that the amount of the transfer correctly corresponds 
to the amount of the consumer's purchase.
    4. Agreement. An agreement that a third party will honor an access 
device is an agreement for purposes of this paragraph. A financial 
institution does not have an agreement for purposes of 
Sec. 205.11(c)(4)(ii) solely because it participates in transactions 
that occur under the federal recurring payments programs, or that are 
cleared through an ACH or similar arrangement for the clearing and 
settlement of fund transfers generally, or because it agrees to be bound 
by the rules of such an arrangement.

    11(d) Procedures if Financial Institution Determines No Error or 
                        Different Error Occurred

    1. Error different from that alleged. When a financial institution 
determines that an error occurred in a manner or amount different from 
that described by the consumer, it must comply with the requirements of 
both Sec. 205.11 (c) and (d), as relevant. The institution may give the 
notice of correction and the explanation separately or in a combined 
form.

                 Paragraph 11(d)(1)--Written Explanation

    1. Request for documentation. When a consumer requests copies of 
documents, the financial institution must provide the copies in an 
understandable form. If an institution relied on magnetic tape it must 
convert the applicable data into readable form, for example, by printing 
it and explaining any codes.

             Paragraph 11(d)(2)--Debiting Provisional Credit

    1. Alternative procedure for debiting of credited funds. The 
financial institution may comply with the requirements of this section 
by notifying the consumer that the consumer's account will be debited 
five business days from the transmittal of the notification, specifying 
the calendar date on which the debiting will occur.
    2. Fees for overdrafts. The financial institution may not impose 
fees for items it is required to honor under Sec. 205.11. It may, 
however, impose any normal transaction or item fee that is unrelated to 
an overdraft resulting from the debiting. If the account is still 
overdrawn after five business days, the institution may impose the fees 
or finance charges to which it is entitled, if any, under an overdraft 
credit plan.

                       11(e) Reassertion of Error

    1. Withdrawal of error; right to reassert. The financial institution 
has no further error resolution responsibilities if the consumer 
voluntarily withdraws the notice alleging an error. A consumer who has 
withdrawn an allegation of error has the right to reassert the 
allegation unless the financial institution had already complied with 
all of the error resolution requirements before the allegation was 
withdrawn. The consumer must do so, however, within the original 60-day 
period.

                 Section 205.12--Relation to Other Laws

                   12(a) Relation to Truth in Lending

    1. Determining applicable regulation. For transactions involving 
access devices that also constitute credit cards, whether Regulation E 
or Regulation Z (12 CFR part 226) applies, depends on the nature of the 
transaction. For example, if the transaction is purely an extension of 
credit, and does not include a debit to a checking account (or other 
consumer asset account), the liability limitations and error resolution 
requirements of Regulation Z (12 CFR part 226) apply. If the transaction 
only debits a checking account (with no credit extended), the provisions 
of Regulation E apply. Finally, if the transaction debits a checking 
account but also draws on an overdraft line of credit, the Regulation E 
provisions apply, as well as Secs. 226.13 (d) and (g) of Regulation Z. 
In such a transaction, the consumer might be liable for up to $50 under 
Regulation Z (12 CFR part 226) and, in addition, for $50, $500, or an 
unlimited amount under Regulation E.
    2. Issuance rules. For access devices that also constitute credit 
cards, the issuance rules of Regulation E apply if the only credit 
feature is a preexisting credit line attached to the asset account to 
cover overdrafts (or to maintain a specified minimum balance). 
Regulation Z (12 CFR part 226) rules apply if there is another type of 
credit feature, for example, one permitting direct extensions of credit 
that do not involve the asset account.

               12(b) Preemption of Inconsistent State Laws

    1. Specific determinations. The regulation prescribes standards for 
determining whether state laws that govern EFTs are preempted by the act 
and the regulation. A

[[Page 157]]

state law that is inconsistent may be preempted even if the Board has 
not issued a determination. However, nothing in Sec. 205.12(b) provides 
a financial institution with immunity for violations of state law if the 
institution chooses not to make state disclosures and the Board later 
determines that the state law is not preempted.
    2. Preemption determination. The Board determined that certain 
provisions in the state law of Michigan are preempted by the federal 
law, effective March 30, 1981:
    i. Definition of unauthorized use. Section 5(4) is preempted to the 
extent that it relates to the section of state law governing consumer 
liability for unauthorized use of an access device.
    ii. Consumer liability for unauthorized use of an account. Section 
14 is inconsistent with Sec. 205.6 and is less protective of the 
consumer than the federal law. The state law places liability on the 
consumer for the unauthorized use of an account in cases involving the 
consumer's negligence. Under the federal law, a consumer's liability for 
unauthorized use is not related to the consumer's negligence and depends 
instead on the consumer's promptness in reporting the loss or theft of 
the access device.
    iii. Error resolution. Section 15 is preempted because it is 
inconsistent with Sec. 205.11 and is less protective of the consumer 
than the federal law. The state law allows financial institutions up to 
70 days to resolve errors, whereas the federal law generally requires 
errors to be resolved within 45 days.
    iv. Receipts and periodic statements. Sections 17 and 18 are 
preempted because they are inconsistent with Sec. 205.9. The state 
provisions require a different disclosure of information than does the 
federal law. The receipt provision is also preempted because it allows 
the consumer to be charged for receiving a receipt if a machine cannot 
furnish one at the time of a transfer.

      Section 205.13--Administrative Enforcement; Record Retention

                         13(b) Record Retention

    1. Requirements. A financial institution need not retain records 
that it has given disclosures and documentation to each consumer; it 
need only retain evidence demonstrating that its procedures reasonably 
ensure the consumers' receipt of required disclosures and documentation.

 Section 205.14--Electronic Fund Transfer Service Provider Not Holding 
                           Consumer's Account

 14(a) Electronic Fund Transfer Service Providers Subject to Regulation

    1. Applicability. This section applies only when a service provider 
issues an access device to a consumer for initiating transfers to or 
from the consumer's account at a financial institution and the two 
entities have no agreement regarding this EFT service. If the service 
provider does not issue an access device to the consumer for accessing 
an account held by another institution, it does not qualify for the 
treatment accorded by Sec. 205.14. For example, this section does not 
apply to an institution that initiates preauthorized payroll deposits to 
consumer accounts on behalf of an employer. By contrast, Sec. 205.14 can 
apply to an institution that issues a code for initiating telephone 
transfers to be carried out through the ACH from a consumer's account at 
another institution. This is the case even if the consumer has accounts 
at both institutions.
    2. ACH agreements. The ACH rules generally do not constitute an 
agreement for purposes of this section. However, an ACH agreement under 
which members specifically agree to honor each other's debit cards is an 
``agreement,'' and thus this section does not apply.

      14(b) Compliance by Electronic Fund Transfer Service Provider

    1. Liability. The service provider is liable for unauthorized EFTs 
that exceed limits on the consumer's liability under Sec. 205.6.
    Paragraph 14(b)(1)--Disclosures and Documentation
    1. Periodic statements from electronic fund transfer service 
provider. A service provider that meets the conditions set forth in this 
paragraph does not have to issue periodic statements. A service provider 
that does not meet the conditions need only include on periodic 
statements information about transfers initiated with the access device 
it has issued.

                  Paragraph 14(b)(2)--Error Resolution

    1. Error resolution. When a consumer notifies the service provider 
of an error, the EFT service provider must investigate and resolve the 
error in compliance with Sec. 205.11 as modified by Sec. 205.14(b)(2). 
If an error occurred, any fees or charges imposed as a result of the 
error, either by the service provider or by the account-holding 
institution (for example, overdraft or dishonor fees) must be reimbursed 
to the consumer by the service provider.

             14(c) Compliance by Account-Holding Institution

                           Paragraph 14(c)(1)

    1. Periodic statements from account-holding institution. The 
periodic statement provided by the account-holding institution need only 
contain the information required by Sec. 205.9(b)(1).

[[Page 158]]

             Appendix A--Model Disclosure Clauses and Forms

    1. Review of forms. The Board will not review or approve disclosure 
forms or statements for financial institutions. However, the Board has 
issued model clauses for institutions to use in designing their 
disclosures. If an institution uses these clauses accurately to reflect 
its service, the institution is protected from liability for failure to 
make disclosures in proper form.
    2. Use of the forms. The appendix contains model disclosure clauses 
for optional use by financial institutions to facilitate compliance with 
the disclosure requirements of Secs. 205.5(b)(2) and (b)(3), 205.6(a), 
205.7, 205.8(b), 205.14(b)(1)(ii) and 205.15(d)(7) and (d)(2). The use 
of appropriate clauses in making disclosures will protect a financial 
institution from liability under sections 915 and 916 of the act 
provided the clauses accurately reflect the institution's EFT services.
    3. Altering the clauses. Financial institutions may use clauses of 
their own design in conjunction with the Board's model clauses. The 
inapplicable words or portions of phrases in parentheses should be 
deleted. The catchlines are not part of the clauses and need not be 
used. Financial institutions may make alterations, substitutions, or 
additions in the clauses to reflect the services offered, such as 
technical changes (including the substitution of a trade name for the 
word ``card,'' deletion of inapplicable services, or substitution of 
lesser liability limits). Several of the model clauses include 
references to a telephone number and address. Where two or more of these 
clauses are used in a disclosure, the telephone number and address may 
be referenced and need not be repeated.

[Reg. E, 61 FR 19686, May 2, 1996]



PART 206--LIMITATIONS ON INTERBANK LIABILITIES (REGULATION F)--Table of Contents




Sec.
206.1  Authority, purpose, and scope.
206.2  Definitions.
206.3  Prudential standards.
206.4  Credit exposure.
206.5  Capital levels of correspondents.
206.6  Waiver.
206.7  Transition provisions.

    Authority:  Section 308 of Public Law 102-242, 105 Stat. 2236, 12 
U.S.C. 371b-2.

    Source:  Reg. F, 57 FR 60106, Dec. 18, 1992, unless otherwise noted.



Sec. 206.1  Authority, purpose, and scope.

    (a) Authority and purpose. This part (Regulation F, 12 CFR part 206) 
is issued by the Board of Governors of the Federal Reserve System 
(Board) to implement section 308 of the Federal Deposit Insurance 
Corporation Improvements Act of 1991 (Act), 12 U.S.C. 371b-2. The 
purpose of this part is to limit the risks that the failure of a 
depository institution would pose to insured depository institutions.
    (b) Scope. This part applies to all depository institutions insured 
by the Federal Deposit Insurance Corporation.



Sec. 206.2  Definitions.

    As used in this part, unless the context requires otherwise:
    (a) Bank means an insured depository institution, as defined in 
section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813), and 
includes an insured national bank, state bank, District bank, or savings 
association, and an insured branch of a foreign bank.
    (b) Commonly-controlled correspondent means a correspondent that is 
commonly controlled with the bank and for which the bank is subject to 
liability under section 5(e) of the Federal Deposit Insurance Act. A 
correspondent is considered to be commonly controlled with the bank if:
    (1) 25 percent or more of any class of voting securities of the bank 
and the correspondent are owned, directly or indirectly, by the same 
depository institution or company; or
    (2) Either the bank or the correspondent owns 25 percent or more of 
any class of voting securities of the other.
    (c) Correspondent means a U.S. depository institution or a foreign 
bank, as defined in this part, to which a bank has exposure, but does 
not include a commonly controlled correspondent.
    (d) Exposure means the potential that an obligation will not be paid 
in a timely manner or in full. ``Exposure'' includes credit and 
liquidity risks, including operational risks, related to intraday and 
interday transactions.
    (e) Foreign bank means an institution that: (1) Is organized under 
the laws of a country other than the United States;
    (2) Engages in the business of banking;
    (3) Is recognized as a bank by the bank supervisory or monetary 
authorities of the country of the bank's organization;

[[Page 159]]

    (4) Receives deposits to a substantial extent in the regular course 
of business; and
    (5) Has the power to accept demand deposits.
    (f) Primary federal supervisor has the same meaning as the term 
``appropriate Federal banking agency'' in section 3(q) of the Federal 
Deposit Insurance Act (12 U.S.C. 1813(q)).
    (g) Total capital means the total of a bank's Tier 1 and Tier 2 
capital under the risk-based capital guidelines provided by the bank's 
primary federal supervisor. For an insured branch of a foreign bank 
organized under the laws of a country that subscribes to the principles 
of the Basle Capital Accord, ``total capital'' means total Tier 1 and 
Tier 2 capital as calculated under the standards of that country. For an 
insured branch of a foreign bank organized under the laws of a country 
that does not subscribe to the principles of the Basle Capital Accord, 
``total capital'' means total Tier 1 and Tier 2 capital as calculated 
under the provisions of the Accord.
    (h) U.S. depository institution means a bank, as defined in 
Sec. 206.2(a) of this part, other than an insured branch of a foreign 
bank.



Sec. 206.3  Prudential standards.

    (a) General. A bank shall establish and maintain written policies 
and procedures to prevent excessive exposure to any individual 
correspondent in relation to the condition of the correspondent.
    (b) Standards for selecting correspondents. (1) A bank shall 
establish policies and procedures that take into account credit and 
liquidity risks, including operational risks, in selecting 
correspondents and terminating those relationships.
    (2) Where exposure to a correspondent is significant, the policies 
and procedures shall require periodic reviews of the financial condition 
of the correspondent and shall take into account any deterioration in 
the correspondent's financial condition. Factors bearing on the 
financial condition of the correspondent include the capital level of 
the correspondent, level of nonaccrual and past due loans and leases, 
level of earnings, and other factors affecting the financial condition 
of the correspondent. Where public information on the financial 
condition of the correspondent is available, a bank may base its review 
of the financial condition of a correspondent on such information, and 
is not required to obtain non-public information for its review. 
However, for those foreign banks for which there is no public source of 
financial information, a bank will be required to obtain information for 
its review.
    (3) A bank may rely on another party, such as a bank rating agency 
or the bank's holding company, to assess the financial condition of or 
select a correspondent, provided that the bank's board of directors has 
reviewed and approved the general assessment or selection criteria used 
by that party.
    (c) Internal limits on exposure. (1) Where the financial condition 
of the correspondent and the form of maturity of the exposure create a 
significant risk that payments will not be made in full or in a timely 
manner, a bank's policies and procedures shall limit the bank's exposure 
to the correspondent, either by the establishment of internal limits or 
by other means. Limits shall be consistent with the risk undertaken, 
considering the financial condition and the form and maturity of 
exposure to the correspondent. Limits may be fixed as to amount of 
flexible, based on such factors as the monitoring of exposure and the 
financial condition of the correspondent. Different limits may be set 
for different forms of exposure, different products, and different 
maturities.
    (2) A bank shall structure transactions with a correspondent or 
monitor exposure to a correspondent, directly or through another party, 
to ensure that its exposure ordinarily does not exceed the bank's 
internal limits, including limits established for credit exposure, 
except for occasional excesses resulting from unusual market 
disturbances, market movements favorable to the bank, increases in 
activity, operational problems, or other unusual circumstances. 
Generally, monitoring may be done on a retrospective basis. The level of 
monitoring required depends on:

[[Page 160]]

    (i) The extent to which exposure approaches the bank's internal 
limits;
    (ii) The volatility of the exposure; and
    (iii) The financial condition of the correspondent.
    (3) A bank shall establish appropriate procedures to address 
excesses over its internal limits.
    (d) Review by board of directors. The policies and procedures 
established under this section shall be reviewed and approved by the 
bank's board of directors at least annually.



Sec. 206.4  Credit exposure.

    (a) Limits on credit exposure. (1) The policies and procedures on 
exposure established by a bank under Sec. 206.3(c) of this part shall 
limit a bank's interday credit exposure to an individual correspondent 
to not more than 25 percent of the bank's total capital, unless the bank 
can demonstrate that its correspondent is at least adequately 
capitalized, as defined in Sec. 206.5(a) of this part.
    (2) Where a bank is no longer able to demonstrate that a 
correspondent is at least adequately capitalized for the purposes of 
Sec. 206.4(a) of this part, including where the bank cannot obtain 
adequate information concerning the capital ratios of the correspondent, 
the bank shall reduce its credit exposure to comply with the 
requirements of Sec. 206.4(a)(1) of this part within 120 days after the 
date when the current Report of Condition and Income or other relevant 
report normally would be available.
    (b) Calculation of credit exposure. Except as provided in 
Secs. 206.4 (c) and (d) of this part, the credit exposure of a bank to a 
correspondent shall consist of the bank's assets and off-balance sheet 
items that are subject to capital requirements under the capital 
adequacy guidelines of the bank's primary federal supervisor, and that 
involve claims on the correspondent or capital instruments issued by the 
correspondent. For this purpose, off-balance sheet items shall be valued 
on the basis of current exposure. The term ``credit exposure'' does not 
include exposure related to the settlement of transactions, intraday 
exposure, transactions in an agency or similar capacity where losses 
will be passed back to the principal of other party, or other sources of 
exposure that are not covered by the capital adequacy guidelines.
    (c) Netting. Transactions covered by netting agreements that are 
valid and enforceable under all applicable laws may be netted in 
calculating credit exposure.
    (d) Exclusions. A bank may exclude the following from the 
calculation of credit exposure to a correspondent:
    (1) Transactions, including reverse repurchase agreements, to the 
extent that the transactions are secured by government securities or 
readily marketable collateral, as defined in paragraph (f) of this 
section, based on the current market value of the collateral;
    (2) The proceeds of checks and other cash items deposited in an 
account at a correspondent that are not yet available for withdrawal;
    (3) Quality assets, as defined in paragraph (f) of this section, on 
which the correspondent is secondarily liable, or obligations of the 
correspondent on which a creditworthy obligor in addition to the 
correspondent is available, including but not limited to:
    (i) Loans to third parties secured by stock or debt obligations of 
the correspondent;
    (ii) Loans to third parties purchased from the correspondent with 
recourse;
    (iii) Loans or obligations of third parties backed by stand-by 
letters of credit issued by the correspondent; or
    (iv) Obligations of the correspondent backed by stand-by letters of 
credit issued by a creditworthy third party;
    (4) exposure that results from the merger with or acquisition of 
another bank for one year after that merger or acquisition is 
consummated; and
    (5) The portion of the bank's exposure to the correspondent that is 
covered by federal deposit insurance.
    (e) Credit exposure of subsidiaries. In calculating credit exposure 
to a correspondent under this part, a bank shall include credit exposure 
to the correspondent of any entity that the bank is required to 
consolidate on its Report of Condition and Income or Thrift Financial 
Report.
    (f) Definitions. As used in this section:

[[Page 161]]

    (1) Government securities means obligations of, or obligations fully 
guaranteed as to principal and interest by, the United States government 
or any department, agency, bureau, board, commission, or establishment 
of the United States, or any corporation wholly owned, directly or 
indirectly, by the United States.
    (2) Readily marketable collateral means financial instruments or 
bullion that may be sold in ordinary circumstances with reasonable 
promptness at a fair market value determined by quotations based on 
actual transactions on an auction or a similarly available daily bid- 
ask-price market.
    (3)(i) Quality asset means an asset:
    (A) That is not in a nonaccrual status;
    (B) On which principal or interest is not more than thirty days past 
due; and
    (C) Whose terms have not been renegotiated or compromised due to the 
deteriorating financial conditions of the additional obligor.
    (ii) An asset is not considered a ``quality asset'' if any other 
loans to the primary obligor on the asset have been classified as 
``substandard,'' ``doubtful,'' or ``loss,'' or treated as ``other loans 
specially mentioned'' in the most recent report of examination or 
inspection of the bank or an affiliate prepared by either a federal or a 
state supervisory agency.



Sec. 206.5  Capital levels of correspondents.

    (a) Adequately capitalized correspondents.\1\ For the purpose of 
this part, a correspondent is considered adequately capitalized if the 
correspondent has:
---------------------------------------------------------------------------


    \1\ As used in this part, the term ``adequately capitalized'' is 
similar but not identical to the definition of that term as used for the 
purposes of the prompt corrective action standards. See, e.g. 12 CFR 
part 208, subpart B.
---------------------------------------------------------------------------

    (1) A total risk-based capital ratio, as defined in paragraph (e)(1) 
of this section, of 8.0 percent or greater;
    (2) A Tier 1 risk-based capital ratio, as defined in paragraph 
(e)(2) of this section, of 4.0 percent or greater; and
    (3) A leverage ratio, as defined in paragraph (e)(3) of this 
section, of 4.0 percent or greater.
    (b) Frequency of monitoring capital levels. A bank shall obtain 
information to demonstrate that a correspondent is at least adequately 
capitalized on a quarterly basis, either from the most recently 
available Report of Condition and Income, Thrift Financial Report, 
financial statement, or bank rating report for the correspondent. For a 
foreign bank correspondent for which quarterly financial statements or 
reports are not available, a bank shall obtain such information on as 
frequent a basis as such information is available. Information obtained 
directly from a correspondent for the purpose of this section should be 
based on the most recently available Report of Condition and Income, 
Thrift Financial Report, or financial statement of the correspondent.
    (c) Foreign banks. A correspondent that is a foreign bank may be 
considered adequately capitalized under this section without regard to 
the minimum leverage ratio required under paragraph (a)(3) of this 
section.
    (d) Reliance on information. A bank may rely on information as to 
the capital levels of a correspondent obtained from the correspondent, a 
bank rating agency, or other party that it reasonably believes to be 
accurate.
    (e) Definitions. For the purposes of this section:
    (1) Total risk-based capital ratio means the ratio of qualifying 
total capital to weighted risk assets.
    (2) Tier 1 risk-based capital ratio means the ratio of Tier 1 
capital to weighted risk assets.
    (3) Leverage ratio means the ratio of Tier 1 capital to average 
total consolidated assets, as calculated in accordance with the capital 
adequacy guidelines of the correspondent's primary federal supervisor.
    (f) Calculation of capital ratios. (i) For a correspondent that is a 
U.S. depository institution, the ratios shall be calculated in 
accordance with the capital adequacy guidelines of the correspondent's 
primary federal supervisor.
    (ii) For a correspondent that is a foreign bank organized in a 
country that has adopted the risk-based framework of the Basle Capital 
Accord, the ratios shall be calculated in accordance with the capital 
adequacy guidelines of the

[[Page 162]]

appropriate supervisory authority of the country in which the 
correspondent is chartered.
    (iii) For a correspondent that is a foreign bank organized in a 
country that has not adopted the risk-based framework of the Basle 
Capital Accord, the ratios shall be calculated in accordance with the 
provisions of the Basle Capital Accord.



Sec. 206.6  Waiver.

    The Board may waive the application of Sec. 206.4(a) of this part to 
a bank if the primary Federal supervisor of the bank advises the Board 
that the bank is not reasonably able to obtain necessary services, 
including payment-related services and placement of funds, without 
incurring exposure to a correspondent in excess of the otherwise 
applicable limit.



Sec. 206.7  Transition provisions.

    (a) Beginning on June 19, 1993, a bank shall comply with the 
prudential standards prescribed under Sec. 206.3 of this part.
    (b) Beginning on June 19, 1994, a bank shall comply with the limit 
on credit exposure to an individual correspondent required under 
Sec. 206.4(a) of this part, but for a period of one year after this date 
the limit shall be 50 percent of the bank's total capital.



PART 207--SECURITIES CREDIT BY PERSONS OTHER THAN BANKS, BROKERS, OR DEALERS (REGULATION G)--Table of Contents




Sec.
207.1  Authority, purpose, and scope.
207.2  Definitions.
207.3  General requirements.
207.4  Credit to broker-dealers.
207.5  Employee stock option, purchase and ownership plans.
207.6  Requirements for the List of OTC Margin Stocks.
207.7  Supplement: Maximum loan value of margin stock and other 
          collateral.

                             Interpretations

207.101  Application to credit committed before February 1, 1968, where 
          funds are disbursed thereafter.
207.102  When bank in ``good faith'' has not relied on stock as 
          collateral.
207.103  Corporate guaranty of bank loan as extension of credit in the 
          ordinary course of business.
207.104  Contribution to joint venture as extension of credit when the 
          contribution is disproportionate to the contributor's share in 
          the venture's profits or losses.
207.105  Applicability of plan-lender provisions to financing of stock 
          options and stock purchase rights qualified or restricted 
          under Internal Revenue Code.
207.106  ``Deep in the money put and call options'' as extensions of 
          credit.
207.107  Status after July 8, 1969, of credit extended prior to that 
          date to purchase or carry mutual fund shares.
207.108  Applicability of margin requirements to credit in connection 
          with insurance premium funding programs.
207.109  Extension of credit in certain stock option and stock purchase 
          plans.
207.110  Accepting a purpose statement through the mail without benefit 
          of face-to-face interview.
207.111  Combined credit for exercising employee stock options and 
          paying income taxes incurred as a result of such exercise.
207.112  Purchase of debt securities to finance corporate takeovers.
207.113  Application of the single-credit rule to loan participations.
207.114  Credit to brokers and dealers.

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

    Source:  Sections 207.1 through 207.7 appear at Reg. G, 48 FR 35071, 
Aug. 3, 1983, unless otherwise noted.

    Editorial Note: For FR citations to changes to the List of OTC 
Margin Stocks, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



Sec. 207.1  Authority, purpose, and scope.

    (a) Authority. Regulation G (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. (1) This part applies to persons other than 
banks, brokers or dealers, who extend or maintain credit secured 
directly or indirectly by margin stock and who are required to register 
with the Board under Sec. 207.3(a) of this part. Credit extended by such 
persons is regulated by limiting the loan value of the collateral 
securing the credit, if the purpose of the credit is to buy or carry 
margin stock.

[[Page 163]]

    (2) This part does not apply to clearing agencies regulated by the 
Securities and Exchange Commission or the Commodity Futures Trading 
Commission that accept deposits of margin stock in connection with:
    (i) The issuance of, or guarantee of, or the clearance of 
transactions in, any security (including options on any security, 
certificate of deposit, securities index or foreign currency); or
    (ii) The guarantee of contracts for the purchase or sale of a 
commodity for future delivery or options on such contracts.
[Reg. G, 48 FR 35071, Aug. 3, 1983, as amended at 56 FR 46110, Sept. 10, 
1991]



Sec. 207.2  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 any person who, directly or indirectly, through 
one or more intermediaries, controls, or is controlled by, or is under 
common control with the lender.
    (b) Carrying credit is credit that enables a customer to maintain, 
reduce, or retire indebtedness originally incurred to purchase a stock 
that is currently a margin stock.
    (c) 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 in any regularly 
published reporting or quotation service; or
    (ii) If there is no closing sale price, the lender 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.
    (d) Customer includes any person or persons acting jointly, to or 
for whom a lender extends or maintains credit.
    (e) Good faith with respect to: (1) The loan value of collateral 
means that amount (not exceeding 100 percent of the current market value 
of the collateral) which a lender, exercising sound credit judgment, 
would lend without regard to the customer's other assets held as 
collateral in connection with unrelated transactions.
    (2) Accepting a statement or notice from or on behalf of a customer 
means that the lender 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.
    (f) 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 cause 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 of the assets subject to the arrangement, as 
determined by any reasonable method, are margin securities;
    (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 creditor that is not an 
affiliate of the lender;
    (iii) The lender 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) If the lender, in good faith, has not relied upon the margin 
stock as collateral in extending or maintaining the credit.
    (g) In the ordinary course of business means occurring or reasonably 
expected to occur in carrying out or furthering any business purpose, or 
in the case of an individual, in the course of any activity for profit 
or the management or preservation of property.
    (h) Lender means any person subject to the registration requirements 
of this part.
    (i) Margin stock means:

[[Page 164]]

    (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.
    (j) Maximum loan value is the percentage of current market value 
assigned by the Board under Sec. 207.7 of this part to specified types 
of collateral. The maximum loan value of margin stock is stated as a 
percentage of current market value. All other collateral has good faith 
loan value except that puts, calls and combinations thereof have no loan 
value.
    (k) OTC margin stock means 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.
    (l) Purpose credit is credit for the purpose, whether immediate, 
incidental, or ultimate, of buying or carrying a margin stock.
[48 FR 35071, Aug. 3, 1983, as amended at 50 FR 10934, Mar. 19, 1985]



Sec. 207.3  General requirements.

    (a) Registration; termination of registration. (1) Every person who, 
in the ordinary course of business, extends or maintains credit secured, 
directly or indirectly, by any margin stock shall register on Federal 
Reserve Form FR G-1 (OMB control number 7100-0011) within 30 days after 
the end of any calendar quarter during which (i) the amount of credit 
extended equals $200,000 or more, or (ii) the amount of credit 
outstanding at any time during that calendar quarter equals $500,000 or 
more.
    (2) A registered lender may apply to terminate its registration, by 
filing Federal Reserve Form FR G-2 (OMB control number 7100-0011), if 
the lender has not, during the preceding six calendar months, had more 
than $200,000 of such credit outstanding. Registration shall be deemed 
terminated when the application is approved by the Board.
    (b) Limitation on extending purpose credit. No lender, except a 
plan-lender, as defined in Sec. 207.5(a)(1) of this part, 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, as set forth in Sec. 207.7 of this part.
    (c) Maintaining credit. A lender may continue to maintain any credit 
initially in compliance with this part, regardless of:
    (1) Reduction in the customer's equity resulting from change in 
market prices;
    (2) Change in the maximum loan value prescribed by this part; or
    (3) Change in the status of the security (from nonmargin to margin) 
securing an existing purpose credit.
    (d) Arranging credit. No lender may arrange for the extension or 
maintenance of any credit, except upon the same terms and conditions 
under which the lender itself may extend or maintain credit under this 
part except this limitation shall not apply with respect to the 
arranging by a lender for a bank

[[Page 165]]

to extend or maintain credit on margin stock or exempted securities.
    (e) Purpose statement. Except for credit extended under Sec. 207.5 
of this part, whenever a lender extends credit secured directly or 
indirectly by any margin stock, the lender shall require its customer to 
execute Form FR G-3 (OMB control number 7100-0018), which shall be 
signed and accepted by a duly authorized representative of the lender 
acting in good faith.
    (f) Purpose statement for revolving credit or multiple draw 
agreements. (1) If a lender extends credit, secured directly or 
indirectly by any margin stock, under a revolving credit or other 
multiple draw agreement, Form FR G-3 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 lender shall obtain and attach to the 
executed Form FR G-3 a current list of collateral which adequately 
supports all credit extended under the agreement.
    (g) 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 lender 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 margin stock securing the prior credit.
    (3) If a lender extended unsecured purpose credit to a customer 
prior to the extension of purpose credit secured by margin securities, 
the credits shall be combined and treated as a single credit solely for 
the purposes of the withdrawal and substitution provision of paragraph 
(i) of this section.
    (4) If a lender extends purpose credit secured by any margin stock 
and nonpurpose credit to the same customer, the lender shall treat the 
credits as two separate loans and may not rely upon the required 
collateral securing the purpose credit for the nonpurpose credit.
    (h) 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 the margin stock and one by all other 
collateral. A lender may use a single credit agreement, if it maintains 
records identifying each portion of the credit and its collateral.
    (i) Withdrawals and substitutions. (1) A lender 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.
    (j) 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 lender 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 
for a period of 60 days following the exchange.
    (k) Renewals and extensions of maturity. A renewal or extension of 
the 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.
    (l) Transfers of credit. (1) A transfer of a credit between 
customers or lenders or between a lender and a bank shall not be 
considered a new extension of credit if:
    (i) The original credit was extended by a lender in compliance with 
this part or was extended by a bank in a

[[Page 166]]

manner that would have complied with this part;
    (ii) The transfer is not made to evade this part or part 221 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 lender 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 a duly authorized representative of the lender acting in good 
faith. The lender shall keep such statement with its records of the 
transferee account.
    (3) When a transfer is made between lenders or between a lender and 
a bank, the transferee shall obtain a copy of the Form FR G-3 or Form FR 
U-1 originally filed with the transferor lender 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.
    (m) Action for lender's protection. Nothing in this part shall 
require a lender to waive or forego any lien, or prevent a lender from 
taking any action it deems necessary for its protection.
    (n) Mistakes in good faith. A mistake in good faith in connection 
with the extension or maintenance of credit shall not be a violation of 
this part.
    (o) Annual Report. Every registered lender shall, within 30 days 
following June 30 of every year, file Form FR G-4 (OMB control number 
7100-0011).
    (p) Where to register and file applications and reports. 
Registration statements, applications to terminate registration, and 
annual reports shall be filed with the Federal Reserve Bank of the 
district in which the principal office of the lender is located.
    (q) 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 lender does not have actual notice of the designation.
[48 FR 35071, Aug. 3, 1983, as amended at 49 FR 35758, Sept. 12, 1984; 
56 FR 46111, Sept. 10, 1991]



Sec. 207.4  Credit to broker-dealers.

    No lender shall extend or maintain credit secured, directly or 
indirectly, by any margin stock to a creditor who is subject to part 220 
of this chapter except in the following circumstances:
    (a) Emergency Loans. Credit extended in good faith reliance upon a 
certification from the customer that the credit is essential to meet 
emergency needs arising from exceptional circumstances. Any collateral 
for such credit shall have good faith loan value.
    (b) Capital Contribution Loans. Credit that the 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.



Sec. 207.5  Employee stock option, purchase and ownership plans.

    (a) Plan-lender; eligible plan. (1) Plan-lender means any 
corporation, (including a wholly-owned subsidiary, or a lender that is a 
thrift organization whose membership is limited to employees and former 
employees of the corporation, its subsidiaries or affiliates) that 
extends or maintains credit to finance the acquisition of margin stock 
of the corporation, its subsidiaries or affiliates under an eligible 
plan.
    (2) Eligible Plan. An eligible plan means any employee stock option, 
purchase, or ownership plan adopted by a corporation and approved by its 
stockholders that provides for the purchase of margin stock of the 
corporation, its subsidiaries, or affiliates.
    (b) Credit to exercise rights under or finance an eligible plan. (1) 
If a plan-lender extends or maintains credit under an eligible plan, any 
margin security that directly or indirectly secures that credit shall 
have good faith loan value.
    (2) Credit extended under this section shall be treated separately 
from credit extended under any other section of

[[Page 167]]

this part except Sec. 207.3 (a) and (o) of this part.
    (c) Credit to ESOPs. A lender may extend and maintain purpose credit 
without regard to the provisions of this part, except for Secs. 207.3(a) 
and 207.3(o), if such credit is extended to an employee stock ownership 
plan (ESOP) qualified under section 401 of the Internal Revenue Code, as 
amended (26 U.S.C. 401).
[48 FR 35071, Aug. 3, 1983, as amended at 50 FR 26355, June 26, 1985]



Sec. 207.6  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 has at least $4 million of capital, surplus, and 
undivided profits;
    (7) There are 400,000 or more shares of such security 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 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;
    (2) The minimum average bid price of such security, as determined by 
the Board, is at least $2 per share;
    (3) The security 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 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) Removal from the list of OTC margin stocks. 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 meet the provisions of paragraph (b) of 
this section or Sec. 207.2(k).
    (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

[[Page 168]]

is necessary or appropriate in the public interest.
    (e) Unlawful representations. It shall be unlawful for any lender to 
make, or cause to be made, any representation to the effect that the 
inclusion of a security on the list 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 communication containing a reference to the 
Board in connection with the list or securities on that list shall be an 
unlawful representation.



Sec. 207.7  Supplement: Maximum loan value of margin stock and other collateral.

    (a) Maximum loan value of a margin stock. The maximum loan value of 
any margin stock, except 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 a nonmargin stock and all other collateral 
except puts, calls, or combinations thereof is their good faith loan 
value.
    (c) Maximum loan value of options. Whether they are margin stock or 
not, puts, calls, and combinations thereof have no loan value.

                             Interpretations



Sec. 207.101  Application to credit committed before February 1, 1968, where funds are disbursed thereafter.

    (a) The Board has been presented with the question whether this part 
applies to an extension of credit to a corporation under a contract 
entered into on May 31, 1967, whereby the creditor agreed to purchase 
notes of the corporation totaling $150 million in three ``closings'' to 
be completed by December 2, 1968. Prior to February 1, 1968, 
$132,500,000 was disbursed. The remaining $16,500,000 was scheduled to 
be paid on February 21, 1968. It was assumed that the purpose of the 
credit was to carry stock that is registered on a national securities 
exchange, and that the credit may become secured by such stock.
    (b) This part, which becomes effective March 11, 1968, will apply to 
credit extended, since (1) on that date the ordinary course of business, 
to purchase or carry registered equity securities, if the credit is 
secured by such securities. The above-described credit was the subject 
of an agreement executed prior to February 1, 1968, that bound the 
parties as to the amount, interest rate, term, and principal conditions 
of the credit, although some of the funds remained to be disbursed.
    (c) The Board concluded that the funds described above, to be 
extended after February 1, 1968, will be extended pursuant to a firm 
commitment executed prior to that date. The Board was of the opinion 
that the date a commitment to extend credit becomes binding should be 
regarded as the date when the credit is extended, since (1) on that date 
the parties should be aware of law and facts surrounding the transaction 
and (2) generally, the date of contract is controlling for purposes of 
margin regulations and Federal securities law, regardless of the 
delivery of cash or securities. Accordingly, the Board concluded that 
this part did not apply to this extension of credit.
[33 FR 4248, Mar. 7, 1968]



Sec. 207.102  When bank in ``good faith'' has not relied on stock as collateral.

    For text of this interpretation, see Sec. 221.117 of this 
subchapter.
[33 FR 7485, May 21, 1968]



Sec. 207.103  Corporate guaranty of bank loan as extension of credit in the ordinary course of business.

    (a) The Board recently considered the questions whether (1) the 
guaranty by a corporation of an ``unsecured'' bank loan to exercise an 
option to purchase stock of the corporation is an ``extension of 
credit'' for the purpose of this part (Regulation G), (2) such a 
guaranty is given ``in the ordinary course of business'' of the 
corporation, as defined in Sec. 207.2(b), and (3) the bank involved took 
part in arranging for such credit on better terms than it could extend 
under the provisions of Part 221 (Regulation U) of this subchapter.
    (b) The Board understood that any officer or employee included under 
the corporation's stock option plan who wished to exercise his option 
could obtain a loan for the purchase price of

[[Page 169]]

the stock by executing an unsecured note to the bank. The corporation 
would issue to the bank a guaranty of the loan and hold the purchased 
shares as collateral to secure it against loss on the guaranty. Stock of 
the corporation is registered on a national securities exchange.
    (c) A lender is subject to the registration and other requirements 
of this part if, in the ordinary course of his business, he extends 
credit on collateral that includes any registered equity securities in 
the amount of $50,000 or more in any calendar quarter, or has such 
credit outstanding in any calendar quarter in the amount of $100,000 or 
more. The Board understood that the corporation in question had $100,000 
in guaranties outstanding during the applicable calendar quarter.
    (d) In the Board's judgment a person who guarantees a loan, and 
thereby becomes liable for the amount of the loan in the event the 
borrower should default, is lending his credit to the borrower. In the 
circumstances described, such a lending of credit must be considered an 
``extension of credit'' under this part in order to prevent 
circumvention of the regulation's limitation on the amount of credit 
that can be extended on the security of registered stock.
    (e) Under Sec. 207.2(b), the term in the ordinary course of his 
business means

    * * * in the case of a person other than an individual, carrying out 
or in furtherance of any business purpose.


In general, stock option plans are designed to provide a company's 
employees with a proprietary interest in the company in the form of 
ownership of the company's stock. Such plans increase the company's 
ability to attract and retain able personnel and, accordingly, promote 
the interest of the company and its stockholders, while at the same time 
providing the company's employees with additional incentive to work 
toward the company's future success. An arrangement whereby 
participating employees may finance the exercise of their options 
through an unsecured bank loan guaranteed by the company, thereby 
facilitating the employees' acquisition of company stock, is likewise 
designed to promote the company's interest and is, therefore, in 
furtherance of a business purpose.
    (f) For the reasons indicated, the Board concluded that under the 
circumstances described a guaranty by the corporation constitutes credit 
extended in the ordinary course of business under this part, that the 
corporation is required to register pursuant to Sec. 207.1(a), and that 
such guaranties may not be given in excess of the maximum loan value of 
the collateral pledged to secure the guaranty, which is 20 percent under 
the current supplement to this part.
    (g) Section 221.3(u) of this subchapter provides that ``no bank 
shall arrange for the extension or maintenance of any credit for the 
purpose of purchasing or carrying any stock registered on a national 
securities exchange, except upon the same terms and conditions on which 
the bank itself could extend or maintain this credit'' under the 
provisions of part 221. Since the Board concluded that the giving of a 
guaranty by the corporation to secure the loan described above 
constitutes an extension of credit, and since the use of a guaranty in 
the manner described could not be effectuated without the concurrence of 
the bank involved, the Board further concluded that the bank took part 
in ``arranging'' for the extension of credit in excess of the maximum 
loan value of the stock pledged to secure the guaranties.
[34 FR 7005, Apr. 29, 1969; 34 FR 8351, May 30, 1969]



Sec. 207.104  Contribution to joint venture as extension of credit when the contribution is disproportionate to the contributor's share in the venture's profits 
          or losses.

    (a) The Board recently considered the question whether a joint 
venture, structured so that the amount of capital contribution to the 
venture would be disproportionate to the right of participation in 
profits or losses, constitutes an ``extension of credit'' for the 
purpose of Regulation G.
    (b) An individual and a corporation plan to establish a joint 
venture to engage in the business of buying and selling securities, 
including registered equity securities. The individual would contribute 
20 percent of the capital and

[[Page 170]]

receive 80 percent of the profits or losses; the corporate share would 
be the reverse. In computing profits or losses, each participant would 
first receive interest at the rate of 8 percent on his respective 
capital contribution. Although purchases and sales would be mutually 
agreed upon, the corporation could liquidate the joint portfolio if the 
individual's share of the losses equaled or exceeded his 20 percent 
contribution to the venture. The corporation would hold the securities, 
and upon termination of the venture, the assets would first be applied 
to repayment of capital contributions.
    (c) In general, the relationship of joint venture is created when 
two or more persons combine their money, property, or time in the 
conduct of some particular line of trade or some particular business and 
agree to share jointly, or in proportion to capital contributed, the 
profits and losses of the undertaking.
    (d) The incidents of the joint venture described above, however, 
closely parallel those of an extension of margin credit, with the 
corporation as lender and the individual as borrower. The corporation 
supplies 80 percent of the purchase price of securities in exchange for 
a net return of 8 percent of the amount advanced plus 20 percent of any 
gain. Like a lender of securities credit, the corporation is insulated 
against loss by retaining the right to liquidate the collateral before 
the securities decline in price below the amount of its contribution. 
Conversely, the individual--like a customer who borrows to purchase 
securities--puts up only 20 percent of their cost, is entitled to the 
principal portion of any appreciation in their value, bears the 
principal risk of loss should that value decline, and does not stand to 
gain or lose except through a change in value of the securities 
purchased.
    (e) The Board is of the opinion that where the right of an 
individual to share in profits and losses of such a joint venture is 
disproportionate to his contribution to the venture:
    (1) The joint venture involves an extension of credit by the 
corporation to the individual;
    (2) The extension of credit is to purchase or carry registered 
equity securities, and is collateralized by such securities; and
    (3) If the corporation is neither a bank subject to Regulation U nor 
a broker or dealer subject to Regulation T, the credit is of the kind 
described by Sec. 207.1(a) of Regulation G.
[34 FR 9121, June 10, 1969]



Sec. 207.105  Applicability of plan-lender provisions to financing of stock options and stock purchase rights qualified or restricted under Internal Revenue 
          Code.

    (a) The Board has recently been asked whether the plan-lender 
provisions of Sec. 207.4(a) of Regulation G, ``Securities Credit by 
Persons other than Banks, Brokers, or Dealers,'' were intended to apply 
to the financing of stock options restricted or qualified under the 
Internal Revenue Code where such options or the option plan do not 
provide for such financing.
    (b) Section 207.4(a) of Regulation G permits a corporation or its 
plan-lender to extend credit to its employees without regard to the 
normal credit limitations of the regulation for the purpose of 
exercising stock options or stock purchase rights if the plan or 
agreement under which the credit is extended complies with certain 
requirements. Paragraph (1) of Sec. 207.4(a) is in effect a 
``grandfather clause,'' exempting from most of the credit limitations of 
Regulation G any such credit extended in connection with options or 
rights meeting certain specified ``pre-existing'' conditions. Generally, 
these conditions recognize inequities that would result from application 
of the regulation's restrictions to credit extended in connection with 
options or rights granted, or contractual commitments made prior to 
February 1, 1968, the date the adoption of Regulation G was announced. 
Paragraph (2) of Sec. 207.4(a) provides a more limited exemption for 
credit extended in connection with options or rights granted after 
February 1, 1968, and establishes requirements for plans seeking to 
qualify for this exemption.
    (c) Paragraph (iii) of Sec. 207.4(a)(1), which was added effective 
July 8, 1969, was designed to provide exemption, from all but certain 
reporting provisions, for credit extended pursuant to

[[Page 171]]

the exercise of stock options or rights that are qualified or restricted 
under sections 422 through 424 of the Internal Revenue Code, if the 
options or rights were granted prior to February 1, 1968. This exemption 
applies only to those plans that provided for credit. This is because 
(1) employer-lenders who intended to supply credit when granting such 
options could not have anticipated the requirements of Regulation G and 
(2) the position of the Commissioner of Internal Revenue that such plans 
cannot be modified, would frustrate that intention. If a particular plan 
did not provide for credit, no expectations would be defeated by the 
fact that it could not be modified to add such provisions.
    (d) The recent amendment to paragraph (2) of Sec. 207.4(a), which 
applies to stock purchase as well as option plans, was to clarify that 
to be treated as subject to the more limited exemption in that 
subparagraph, an otherwise appropriate credit arrangement need not be 
part of the plan. It is the Board's experience that in some nonqualified 
plans, particularly stock purchase plans, the credit arrangement is 
distinct from the plan. So long as the credit extended, and 
particularly, in the present context, the character of the plan-lender, 
conforms with the requirements of the regulation, the fact that option 
and credit are provided for in separate documents is immaterial. It 
should be emphasized that the Board does not express any view on the 
preferability of qualified as opposed to nonqualified options; its role 
is merely to prevent excessive credit in this area.
    (e) The amendments promulgated on February 10, 1969, made one other 
change in Sec. 207.4(a). This was the addition of the provision that the 
plan-lender must be wholly owned as well as controlled by the issuer of 
the collateral (taking as a whole, corporate groups including 
subsidiaries and affiliates). This insertion was made to clarify the 
Board's intent that, to qualify for special treatment under that 
section, the lender must stand in a special employer-employee 
relationship with the borrower, and a special relationship of issuer 
with regard to the collateral. The fact that the Board, for convenience 
and practical reasons, permitted the employing corporation to act 
through a subsidiary or other entity should not be interpreted to mean 
the Board intended the lender to be other than an entity whose 
overriding interests were coextensive with the issuer. An independent 
corporation, with independent interests was never intended, regardless 
of form, to be at the base of exempt stock-plan lending.
[34 FR 18242, Nov. 14, 1969]



Sec. 207.106  ``Deep in the money put and call options'' as extensions of credit.

    For text of the interpretation on this subject, see Sec. 220.122 of 
this subchapter.
[35 FR 3280, Feb. 21, 1970]



Sec. 207.107  Status after July 8, 1969, of credit extended prior to that date to purchase or carry mutual fund shares.

    For the text of interpretation, see Sec. 221.119 of this subchapter.
[35 FR 6959, May 1, 1970]



Sec. 207.108  Applicability of margin requirements to credit in connection with insurance premium funding programs.

    (a) The Board has been asked numerous questions regarding purpose 
credit in connection with insurance premium funding programs. The 
inquiries are included in a set of guidelines in the format of questions 
and answers which follow. A glossary of terms customarily used in 
connection with insurance premium funding credit activities is included 
in the guidelines. Under a typical insurance premium funding program, a 
borrower acquires mutual fund shares for cash, or takes fund shares 
which he already owns, and then uses the loan value (currently 40 
percent as set by the Board) to buy insurance. Usually, a funding 
company (the issuer) will sell both the fund shares and the insurance 
through either independent broker/dealers or subsidiaries or affiliates 
of the issuer. A typical plan may run for 10 or 15 years with annual 
insurance premiums due. To illustrate, assuming an annual insurance 
premium of $300, the participant is required to put up mutual fund 
shares equivalent to 250 percent of the premium or $750 ($750 x 40 
percent loan

[[Page 172]]

value equals $300 the amount of the insurance premium which is also the 
amount of the credit extended).
    (b) These guidelines also (1) clarify an earlier 1969 Board 
interpretation to show that the public offering price of mutual fund 
shares (which includes the front load, or sales commission) may be used 
as a measure of their current market value when the shares serve as 
collateral on a purpose credit throughout the day of the purchase of the 
fund shares, and (2) relax a 1965 Board position in connection with 
accepting purpose statements by mail. It is the Board's view that when 
it is clearly established that a purpose statement supports a purpose 
credit then such statement executed by the borrower may be accepted by 
mail, provided it is received and also executed by the lender before the 
credit is extended.
[39 FR 9425, Mar. 11, 1974]



Sec. 207.109  Extension of credit in certain stock option and stock purchase plans.

    Questions have been raised as to whether certain stock option and 
stock purchase plans involve extensions of credit subject to Regulation 
G when the participant is free to cancel his participation at any time 
prior to full payment, but in the event of cancellation the participant 
remains liable for damages. It thus appears that the participant has the 
opportunity to gain and bears the risk of loss from the time the 
transaction is executed and payment is deferred. In some cases brought 
to the Board's attention damages are related to the market price of the 
stock, but in others, there may be no such relationship. In either of 
these circumstances, it is the Board's view that such plans involve 
extensions of credit. Accordingly, where the security being purchased is 
a margin security and the credit is secured, directly or indirectly, by 
any margin security, the creditor must register and the credit must 
conform with either the regular margin requirements of Sec. 207.1(c) or 
the special ``plan-lender'' provisions set forth in Sec. 207.4(a) of the 
regulation, whichever is applicable. This assumes, of course, that the 
amount of credit extended is such that the creditor is subject to the 
registration requirements of Sec. 207.1(a) of the regulation.
[39 FR 43815, Dec. 19, 1974]



Sec. 207.110  Accepting a purpose statement through the mail without benefit of face-to-face interview.

    (a) The Board has been asked whether the acceptance of a purpose 
statement submitted through the mail by a lender subject to the 
provisions of Regulation G will meet the good faith requirement of 
Sec. 207.1(e). Section 207.1(e) states that in connection with any 
credit secured by collateral which includes any margin security, a 
lender must obtain a purpose statement executed by the borrower and 
accepted by the lender in good faith. Such acceptance requires that the 
lender be alert to the circumstances surrounding the credit and if 
further information suggests inquiry, he must investigate and be 
satisfied that the statement is truthful.
    (b) The lender is a subsidiary of a holding company which also has 
another subsidiary which serves as underwriter and investment advisor to 
various mutual funds. The sole business of the lender will be to make 
``non-purpose'' consumer loans to shareholders of the mutual funds, such 
loans to be collateralized by the fund shares. Mutual funds shares are 
margin securities for purposes of Regulation G. Solicitation and 
acceptance of these consumer loans will be done principally through the 
mail and the lender wishes to obtain the required purpose statement by 
mail rather than by a face-to-face interview. Personal interviews are 
not practicable for the lender because shareholders of the funds are 
scattered throughout the country. In order to provide the same 
safeguards inherent in face-to-face interviews, the lender has developed 
certain procedures designed to satisfy the good faith acceptance 
requirement of the regulation.
    (c) The purpose statement will be supplemented with several 
additional questions relevant to the prospective borrower's investment 
activities such as purchases of any security within the last 6 months, 
dollar amount, and obligations to purchase or pay for previous 
purchases; present plans to purchase

[[Page 173]]

securities in the near future, participations in securities purchase 
plans, list of unpaid debts, and present income level. Some questions 
have been modified to facilitate understanding but no questions have 
been deleted. If additional inquiry is indicated by the answers on the 
form, a loan officer of the lender will interview the borrower by 
telephone to make sure the loan is ``non-purpose''. Whenever the loan 
exceeds the ``maximum loan value'' of the collateral for a regulated 
loan, a telephone interview will be done as a matter of course.
    (d) Although the Board has expressed no views as to the necessity 
for face-to-face meetings between borrower and lending officer under 
Regulation G, an interpretation under Regulation U published in 1965 (12 
CFR 221.115) on the subject has usually been considered applicable. That 
view, however, was expressed before the adoption by the Board of 
Regulation X (12 CFR part 224) in 1971. One of the stated purposes of 
Regulation X was to prevent the infusion of unregulated credit into the 
securities markets by borrowers falsely certifying the purpose of a 
loan. The Board is of the view that the existence of Regulation X, which 
makes the borrower liable for willful violations of the margin 
regulations, will allow a lender subject to Regulation G or U to meet 
the good faith acceptance requirement of Secs. 207.1(e) and 221.3(a), 
respectively, without a face-to-face interview if the lender adopts a 
program, such as the one described above, which requires additional 
detailed information from the borrower and proper procedures are 
instituted to verify the truth of the information received. The 1965 
interpretation has therefore been withdrawn. Lenders intending to embark 
on a similar program should discuss proposed plans with their district 
Federal Reserve Bank. Lenders may have existing or future loans with the 
prospective customers which could complicate the efforts to determine 
the true purpose of the loan. In addition, Regulation U differs from 
Regulation G in many important respects.
    (e) Section 220.7(a) of Regulation T, in general, prohibits a 
broker/dealer from arranging any credit which he himself cannot extend. 
Therefore, the Board cautions that any prospectus of sales information 
for the mutual fund shares may not offer the services of the lending 
company, as any broker/dealer selling the fund shares would thereby be 
deemed to have ``arranged'' a loan in violation of Regulation T.
[43 FR 30038, July 13, 1978]



Sec. 207.111  Combined credit for exercising employee stock options and paying income taxes incurred as a result of such exercise.

    (a) The Board of Governors has been asked whether Sec. 207.1(h) of 
Regulation G prevents a lender under an employee stock option plan that 
meets the requirements of Sec. 207.4(a) from extending credit to an 
employee to pay the income taxes incurred as a result of the exercise of 
the stock option, in addition to the credit to cover the purchase price 
of the stock.
    (b) Section 207.1(h) prohibits a lender governed by Regulation G 
from extending purpose credit if it is secured by collateral including 
margin securities, which also secures any other credit to the same 
person in excess of $5,000. Unless credit to pay income taxes is also 
treated as purpose credit, it could not be extended in an amount in 
excess of $5,000 when the borrower also has a purpose loan outstanding 
with the lender, secured by margin securities, since such collateral 
would be deemed to be also securing the income tax loan. Purpose credit 
is defined in Sec. 207.2(c) of the regulation as credit which is for the 
purpose, whether immediate, incidental, or ultimate, of purchasing or 
carrying a margin security.''
    (c) Section 207.4(a), which provides special treatment for credit 
extended under employee stock option plans, was designed to encourage 
their use in recognition of their value in giving an employee a 
proprietary interest in the business. Taking a position that might 
discourage the exercise of options because of tax complications would 
conflict with the purpose of Sec. 207.4(a).
    (d) Accordingly, the Board has concluded that the combined loans for 
the exercise of the option and the payment of the taxes in connection 
therewith under plans complying with Sec. 207.4(a) may be regarded as 
credit which is for

[[Page 174]]

the purpose of purchasing or carrying a margin security within the 
meaning of Sec. 207.2(c). Since the combined loans are treated as 
purpose credit, Sec. 207.1(h) does not prohibit the transaction, 
irrespective of amount.
[45 FR 44256, July 1, 1980]



Sec. 207.112  Purchase of debt securities to finance corporate takeovers.

    (a) Petitions have been filed with the Board raising questions as to 
whether the margin requirements in Regulation G apply to two types of 
corporate acquisitions in which debt securities are issued to finance 
the acquisition of margin stock of a target company.
    (b) In the first situation, the acquiring company, Company A, 
controls a shell corporation that would make a tender offer for the 
stock of Company B, which is margin stock (as defined in Sec. 207.2(i)). 
The shell corporation has virtually no operations, has no significant 
business function other than to acquire and hold the stock of Company B, 
and has substantially no assets other than the margin stock to be 
acquired. To finance the tender offer, the shell corporation would issue 
debt securities which, by their terms, would be unsecured. If the tender 
offer is successful, the shell corporation would seek to merge with 
Company B. However, the tender offer seeks to acquire fewer shares of 
Company B than is necessary under state law to effect a short form 
merger with Company B, which could be consummated without the approval 
of shareholders or the board of directors of Company B.
    (c) The purchase of the debt securities issued by the shell 
corporation to finance the acquisition clearly involves purpose credit 
(as defined in Sec. 207.2(l)). In addition, such debt securities would 
be purchased only by sophisticated investors in very large minimum 
denominations, so that the purchasers may be lenders for purposes of 
Regulation G. See 12 CFR 207.2(h). Since the debt securities contain no 
direct security agreement involving the margin stock, applicability of 
the lending restrictions of the Regulation turns on whether the 
arrangement constitutes an extension of credit that is secured 
indirectly by margin stock.
    (d) As the Board has recognized, indirect security can encompass a 
wide variety of arrangements between lenders and borrowers with respect 
to margin stock collateral that serve to protect the lenders' interest 
in assuring that a credit is repaid where the lenders do not have a 
conventional direct security interest in the collateral. See 12 CFR 
211.113. However, credit is not indirectly secured by margin stock if 
the lender in good faith has not relied on the margin stock as 
collateral extending or maintaining credit. See 12 CFR 207.2(f)(2)(iv).
    (e) The Board is of the view that, in the situation described in 
paragraph (b) of this section, the debt securities would be presumed to 
be indirectly secured by the margin stock to be acquired by the shell 
acquisition vehicle. The staff has previously expressed the view that 
nominally unsecured credit extended to an investment company, a 
substantial portion of whose assets consist of margin stock, is 
indirectly secured by the margin stock. See Federal Reserve Regulatory 
Service para. 5-917.12. This opinion notes that the investment company 
has substantially no assets other than margin stock to support 
indebtedness and thus credit could not be extended to such a company in 
good faith without reliance on the margin stock as collateral.
    (f) The Board believes that this rationale applies to the debt 
securities issued by the shell corporation described above. At the time 
the debt securities are issued, the shell corporation has substantially 
no assets to support the credit other than the margin stock that it has 
acquired or intends to acquire and has no significant business function 
other than to hold the stock of the target company in order to 
facilitate the acquisition. Moreover, it is possible that the shell may 
hold the margin stock for a significant and indefinite period of time, 
if defensive measures by the target prevent consummation of the 
acquisition. Because of the difficulty in predicting the outcome of a 
contested takeover at the time that credit is committed to the shell 
corporation, the Board believes that the purchasers of the debt 
securities could not, in good faith, lend without reliance on the margin 
stock as

[[Page 175]]

collateral. The presumption that the debt securities are indirectly 
secured by margin stock would not apply if there is specific evidence 
that lenders could in good faith rely on assets other than margin stock 
as collateral, such as a guaranty of the debt securities by the shell 
corporation's parent company or another company that has substantial 
non-margin stock assets or cash flow. This presumption would also not 
apply if there is a merger agreement between the acquiring and target 
companies entered into at the time the commitment is made to purchase 
the debt securities or in any event before loan funds are advanced. In 
addition, the presumption would not apply if the obligation of the 
purchasers of the debt securities to advance funds to the shell 
corporation is contingent on the shell's acquisition of the minimum 
number of shares necessary under applicable state law to effect a merger 
between the acquiring and target companies without the approval of 
either the shareholders or directors of the target company. In these two 
situations where the merger will take place promptly, the Board believes 
the lenders could reasonably be presumed to be relying on the assets of 
the target for repayment.
    (g) In addition, the Board is of the view that the debt securities 
described in paragraph (b) of this section are indirectly secured by 
margin stock because there is a practical restriction on the ability of 
the shell corporation to dispose of the margin stock of the target 
company. Indirectly secured is defined in Sec. 207.2(f) of the 
regulation to include any arrangement under which 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. The purchasers of the debt securities issued by a shell 
corporation to finance a takeover attempt clearly understand that the 
shell corporation intends to acquire the margin stock of the target 
company in order to effect the acquisition of that company. This 
understanding represents a practical restriction on the ability of the 
shell corporation to dispose of the target's margin stock and to acquire 
other assets with the proceeds of the credit.
    (h) In the second situation, Company C, an operating company with 
substantial assets or cash flow, seeks to acquire Company D, which is 
significantly larger than Company C. Company C establishes a shell 
corporation that together with Company C makes a tender offer for the 
shares of Company D, which is margin stock. To finance the tender offer, 
the shell corporation would obtain a bank loan that complies with the 
margin lending restrictions of Regulation U and Company C would issue 
debt securities that would not be directly secured by any margin stock. 
The Board is of the opinion that these debt securities should not be 
presumed to be indirectly secured by the margin stock of Company D, 
since, as an operating business, Company C has substantial assets or 
cash flow without regard to the margin stock of Company D. Any 
presumption would not be appropriate because the purchasers of the debt 
securities may be relying on assets other than margin stock of Company D 
for repayment of the credit.
[51 FR 1781, Jan. 15, 1986]



Sec. 207.113  Application of the single-credit rule to loan participations.

    (a) Amendments to parts 207 and 220, effective October 11, 1991, 
amended Sec. 207.3(l) of Regulation G and Sec. 221.3(i) of Regulation U 
of this chapter to permit transfers of loans between different types of 
lenders. In connection with that rulemaking, comments were received 
asking the Board to consider the application of the single-credit rule 
to the purchase of loan participations by lenders and banks who have 
other outstanding purpose credit with the same borrower.
    (b) The single-credit rule (Sec. 207.3(g) of Regulation G and 
Sec. 221.3(d) of Regulation U of this chapter), provides in part that 
``[a]ll 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.'' If a lender or bank extends purpose credit to a borrower and 
then purchases a participation in a loan to the same borrower that 
represents purpose credit secured by margin stock, the single-credit 
rule requires the aggregation of the two

[[Page 176]]

credits. If the borrower pays off one of the two loans, the 
participating lender or bank is prohibited under the withdrawal and 
substitutions provision (Sec. 207.3(i) of Regulation G and Sec. 221.3(f) 
of Regulation U of this chapter) from allowing the lead lender or bank 
to release the pro rata share of the collateral pledged for that 
participation unless the other loan is secured by collateral with 
sufficient maximum loan value. In addition, the lead lender or bank 
cannot allow any withdrawals of collateral during the course of the loan 
without contacting each participant to check on the status of any 
unrelated purpose credit to that borrower. These administrative burdens 
discourage the syndication and transfer of purpose loans.
    (c) A version of the single-credit rule was incorporated in 
Regulation U when it was first issued in 1936. The rule assumed a direct 
relationship between the borrower and the bank. The modern practice of 
syndication or subsequent resale of participations severs the direct 
relationship between the borrower and the lender and presents 
difficulties, as described above, in the further administration of the 
loans for compliance with the margin regulations.
    (d) The Board is of the view that as long as the lead lender or bank 
has control of the collateral, monitors the entire syndicated loan on a 
stand-alone basis, and does not allow withdrawals or substitutions 
unless sufficient collateral remains, participating lenders and banks 
need not aggregate participations with other unrelated purpose credit 
they have with the borrower under the single-credit rule.
[56 FR 46228, Sept. 11, 1991]



Sec. 207.114  Credit to brokers and dealers.

    (a) The National Securities Markets Improvement Act of 1996 (Pub. L. 
104-290, 110 Stat. 3416) restricts the Board's margin authority by 
repealing section 8(a) of the Securities Exchange Act of 1934 (the 
Exchange Act) and amending section 7 of the Exchange Act (15 U.S.C. 78g) 
to exclude the borrowing by a member of a national securities exchange 
or a registered broker or dealer ``a substantial portion of whose 
business consists of transactions with persons other than brokers or 
dealers'' and borrowing by a member of a national securities exchange or 
a registered broker or dealer to finance its activities as a market 
maker or an underwriter. Notwithstanding this exclusion, the Board may 
impose such rules and regulations if it determines they are ``necessary 
or appropriate in the public interest or for the protection of 
investors.''
    (b) The Board's margin regulations, Regulations G, T and U (12 CFR 
Parts 207, 220 and 221, respectively), currently contain rules regarding 
loans to brokers and dealers based on former section 8(a) of the 
Exchange Act and its interplay with the earlier version of section 7 of 
the Exchange Act, which instructed the Board to prescribe rules and 
regulations with respect to the amount of credit that may be extended on 
any nonexempted security.
    (c) The Board has not found that it is necessary or appropriate in 
the public interest or for the protection of investors to impose rules 
and regulations regarding loans to brokers and dealers covered by the 
National Securities Markets Improvement Act of 1996. Consequently, the 
Board believes that extensions of securities credit that are unregulated 
under section 7, as amended by the National Securities Markets 
Improvement Act of 1996, currently are not limited by Regulations G, T 
and U, notwithstanding any provisions to the contrary, because the 
provisions of section 7, as amended, supersede conflicting provisions of 
the Board's regulations.
    (d) Section 220.15 of Regulation T (12 CFR 220.15), Sec. 221.4 of 
Regulation U and the reference in Sec. 221.5(a) of Regulation U (12 CFR 
221.5(a)) to ``a member bank and a nonmember bank that is in compliance 
with Sec. 221.4,'' and the introductory text of Sec. 207.4 of Regulation 
G (12 CFR 207.4) were all adopted by the Board to implement the 
requirements of former section 8(a) of the Exchange Act. The Board 
believes that these sections are without effect in light of the repeal 
of section 8(a) of the Exchange Act. Brokers and dealers are not 
restricted as to the type of lender to which they may pledge exchange-
traded equity securities as collateral for

[[Page 177]]

extensions of credit. In addition, a bank, as defined in section 3 of 
the Exchange Act (15 U.S.C. 78c) and the rules thereunder, may rely on 
Sec. 221.5 of Regulation U (12 CFR 221.5) in making loans to brokers and 
dealers without regard to membership in the Federal Reserve System or 
the existence of an agreement with the Federal Reserve under former 
section 8(a) of the Exchange Act.
[Reg. G, 61 FR 60166, Nov. 26, 1996]



PART 208--MEMBERSHIP OF STATE BANKING INSTITUTIONS IN THE FEDERAL RESERVE SYSTEM (REGULATION H)--Table of Contents




                      Subpart A--General Provisions

Sec.
208.1  Definitions.
208.2  Eligibility requirements.
208.3  Insurance of deposits.
208.4  Application for membership.
208.5  Approval of application.
208.6  Privileges and requirements of membership.
208.7  Conditions of membership.
208.8  Banking practices.
208.9  Establishment or maintenance of branches.
208.10  Waiver of reports of affiliates.
208.11  Voluntary withdrawal from Federal Reserve System.
208.12  Board forms.
208.13  Capital adequacy.
208.14  Procedures for monitoring Bank Secrecy Act compliance.
208.15  Agricultural loan loss amortization.
208.16  Reporting requirements for State member banks subject to the 
          Securities Exchange Act of 1934.
208.17  Disclosure of financial information by state member banks.
208.18  Appraisal standards for federally related transactions.
208.19  Payment of dividends.
208.20  Suspicious Activity Reports.
208.21  Community development and public welfare investments.
208.22  Investment in bank premises.
208.23  Loans in areas having special flood hazards.
208.24  Recordkeeping and confirmation of certain securities 
          transactions effected by State member banks.
208.25  Government securities sales practices.
208.26  Frequency of examination.
208.28  Prohibition against use of interstate branches primarily for 
          deposit production.

                   Subpart B--Prompt Corrective Action

208.30  Authority, purpose, scope, other supervisory authority, and 
          disclosure of capital categories.
208.31  Definitions.
208.32  Notice of capital category.
208.33  Capital measures and capital category definitions.
208.34  Capital restoration plans.
208.35  Mandatory and discretionary supervisory actions under section 
          38.

                Subpart C--Real Estate Lending Standards

208.51  Purpose and scope.
208.52  Real estate lending standards.

             Subpart D--Standards for Safety and Soundness.

208.60  Standards for safety and soundness.

                       Subpart E--Interpretations

208.116  Sale of bank's money orders off premises as establishment of 
          branch office.
208.117  Mobile branches.
208.122  Loan ``Production Offices'' as branches.
208.123  Loan production offices and ``back office'' facilities.
208.124  Purchase of investment company stock by a state member bank.
208.125  Necessity for Board approval of stock dividend by State member 
          bank.
208.126  Payment of dividends; effect of net losses.
208.127  Payment of dividends exceeding net profits to date of 
          declaration.
208.128  Commodity- or equity-linked transactions.
208.129  Obligations concerning institutional customers.


Appendix A to Part 208--Capital Adequacy Guidelines for State Member 
          Banks: Risk-Based Measure
Appendix B to Part 208--Capital Adequacy Guidelines for State Member 
          Banks: Tier 1 Leverage Measure
Appendix C to Part 208--Interagency Guidelines for Real Estate Lending 
          Policies
Appendix D to Part 208--Interagency Guidelines Establishing Standards 
          for Safety and Soundness
Appendix E to Part 208--Capital Adequacy Guidelines for State Member 
          Banks; Market Risk Measure

    Authority:  12 U.S.C. 24, 248(a), 248(c), 321-338a, 371d, 461, 481-
486, 601, 611, 1814, 1820(d)(9), 1823(j), 1828(o), 1831o, 1831p-1, 
1835a, 3105, 3310, 3331-3351, and 3906-3909; 15 U.S.C. 78b, 78l(b), 
78l(g), 78l(i), 78o-4(c)(5), 78q, 78q-1, and 78w; 31 U.S.C. 5318.

[[Page 178]]


    Source:  Reg. H, 17 FR 8006, Sept. 4, 1952, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 208.1  Definitions.

    For the purposes of this part:
    (a) The term State bank means any bank or trust company incorporated 
under a special or general law of a State or under a general law for the 
District of Columbia, any mutual savings bank (unless otherwise 
indicated), and any Morris Plan bank or other incorporated banking 
institution engaged in similar business. 1
---------------------------------------------------------------------------


    1  Under the provisions of section 19 of the Federal Reserve 
Act, national banks and banks organized under local laws, located in a 
dependency or insular possession or any part of the United States 
outside of the States of the United States and the District of Columbia 
are not required to become members of the Federal Reserve System but 
may, with the consent of the board, become members of the System. 
However, this Part 208 is applicable only to the admission of banks 
eligible for admission to membership under section 9 of the Federal 
Reserve Act and does not cover the admission of banks eligible under 
section 19 of the Act. Any bank desiring to be admitted to the System 
under the provisions of section 19 should communicate with the Federal 
Reserve Bank with which it desires to do business.
---------------------------------------------------------------------------

    (b) The term mutual savings bank means a bank without capital stock 
transacting a savings bank business, the net earnings of which inure 
wholly to the benefit of its depositors after payment of obligations for 
any advances by its organizers, and in addition thereto includes any 
other banking institution the capital of which consists of weekly or 
other time deposits which are segregated from all other deposits and are 
regarded as capital stock for the purposes of taxation and the 
declaration of dividends.
    (c) The term Board means the Board of Governors of the Federal 
Reserve System.
    (d) The term board of directors means the governing board of any 
institution performing the usual functions of a board of directors.
    (e) The term Federal Reserve Bank stock includes the deposit which 
may be made with a Federal Reserve Bank in lieu of a subscription for 
stock by a mutual savings bank which is not permitted to purchase stock 
in a Federal Reserve Bank, unless otherwise indicated.
    (f) The terms capital and capital stock means common stock, 
preferred stock and legally issued capital notes and debentures 
purchased by the Reconstruction Finance Corporation which may be 
considered capital and capital stock for purposes of membership in the 
Federal Reserve System under the provisions of section 9 of the Federal 
Reserve Act.
[Reg. H, 17 FR 8006, Sept. 4, 1952, as amended at 24 FR 7029, Aug. 29, 
1959]



Sec. 208.2  Eligibility requirements.

    (a) Under the terms of section 9 of the Federal Reserve Act, as 
amended, to be eligible for admission to membership in the Federal 
Reserve System:
    (1) A State bank, other than a mutual savings bank, must possess 
capital stock and surplus which, in the judgment of the Board, are 
adequate in relation to the character and condition of its assets and to 
its existing and prospective deposit liabilities and other corporate 
responsibilities: Provided, That no bank engaged in the business of 
receiving deposits other than trust funds, which does not possess 
capital stock and surplus in an amount equal to that which would be 
required for the establishment of a national banking association in the 
place in which it is located, shall be admitted to membership unless it 
is, or has been, approved for deposit insurance under the Federal 
Deposit Insurance Act.
    (2) A mutual savings bank must possess surplus and undivided profits 
not less than the amount of capital required for the organization of a 
national bank in the place where it is situated.
    (b) The minimum capital required for the organization of a national 
bank, referred to hereinbefore in connection with the capital required 
for admission to membership in the Federal Reserve System, is as 
follows:

                                                                        
------------------------------------------------------------------------
                                                                Minimum 
                                                                capital 
------------------------------------------------------------------------
If located in a city or town with a population:                         
  Not exceeding 6,000 inhabitants...........................     $50,000
  Exceeding 6,000 but not exceeding 50,000 inhabitants......     100,000

[[Page 179]]

                                                                        
  Exceeding 50,000 inhabitants (except as stated below).....     200,000
  In an outlying district of a city with a population                   
   exceeding 50,000 inhabitants; provided State law permits             
   organization of State banks in such location with a                  
   capital of $100,000 or less..............................     100,000
------------------------------------------------------------------------


With certain exceptions not here applicable, a national bank must have 
surplus equal to 20 percent of its capital in order to commence 
business.



Sec. 208.3  Insurance of deposits.

    Any State bank becoming a member of the Federal Reserve System which 
is engaged in the business of receiving deposits other than trust funds 
and which is not at the time an insured bank under the provisions of the 
Federal Deposit Insurance Act, will become an insured bank under the 
provisions of that Act on the date upon which it becomes a member of the 
Federal Reserve System. 2 In the case of an insured bank 
which is admitted to membership in the Federal Reserve System, the bank 
will continue to be an insured bank.
---------------------------------------------------------------------------


    2 In the case of a State bank which is engaged in the 
business of receiving deposits other than trust funds and which at the 
time of its admission to membership in the Federal Reserve System is not 
an insured bank, the Board is required under the provisions of sections 
4 and 6 of the Federal Deposit Insurance Act to issue a certificate to 
the Federal Deposit Insurance Corporation to the effect that the bank is 
a member of the Federal Reserve System and that consideration has been 
given to the financial history and condition of the bank, the adequacy 
of its capital structure, its future earnings prospects, the general 
character of its management, the convenience and needs of the community 
to be served by the bank, and whether or not its corporate powers are 
consistent with the purposes of the Federal Deposit Insurance Act.
---------------------------------------------------------------------------



Sec. 208.4  Application for membership.

    (a) State bank, other than a mutual savings bank. A state bank, 
other than a mutual savings bank, applying for membership, shall make 
application on Form FR 83A to the Board for an amount of capital stock 
in the Federal Reserve Bank of its district equal to six percent of the 
paid-up capital stock and surplus of the applying institution.
    (b) Mutual savings bank. A mutual savings bank applying for 
membership shall make application on Form FR 83B to the Board for an 
amount of capital stock in the Federal Reserve Bank of its district 
equal to six-tenths of one percent of its total deposit liabilities as 
shown by the most recent report of examination of such institution 
preceding its admission to membership, or, if such institution be not 
permitted by the laws under which it was organized to purchase stock in 
a Federal Reserve Bank, on Form FR 83C, for permission to deposit with 
the Federal Reserve Bank an amount equal to the amount which it would 
have been required to pay in on account of a subscription to capital 
stock.
    (c) Mutual savings bank which is not authorized to purchase stock of 
Federal Reserve Bank at time of admission. If a mutual savings bank be 
admitted to membership on the basis of a deposit of the required amount 
with the Federal Reserve Bank in lieu of payment upon capital stock 
because the laws under which such bank was organized do not at that time 
authorize it to purchase stock in the Federal Reserve Bank, it shall 
subscribe on Form F.R. 83D for the appropriate amount of stock in the 
Federal Reserve Bank whenever such laws are amended so as to authorize 
it to purchase stock in a Federal Reserve Bank. 3
---------------------------------------------------------------------------


    3 The Federal Reserve Act provides that, if the laws under 
which any such savings bank was organized be not amended at the first 
session of the legislature following the admission of the savings bank 
to membership so as to authorize mutual savings banks to purchase 
Federal Reserve Bank stock, or if such laws be so amended and the bank 
fail within six months thereafter to purchase such stock, all of its 
rights and privileges as a member bank shall be forfeited and its 
membership in the Federal Reserve System shall be terminated in the 
manner prescribed in section 9 of the Federal Reserve Act.
---------------------------------------------------------------------------

    (d) Execution and filing of application. Each application made under 
the provisions of this section and the exhibits referred to in the 
application blank shall be executed and filed, in duplicate, with the 
Federal Reserve Bank of the district in which the applying bank is 
located.

[[Page 180]]



Sec. 208.5  Approval of application.

    (a) Matters given special consideration by Board. In passing upon an 
application, the following matters will be given special consideration:
    (1) The financial history and condition of the applying bank and the 
general character of its management;
    (2) 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;
    (3) The convenience and needs of the community to be served by the 
bank; and
    (4) Whether its corporate powers are consistent with the purposes of 
the Federal Reserve Act.
    (b) Procedure for admission to membership after approval of 
application. If an applying bank conforms to all the requirements of the 
Federal Reserve Act and this part and is otherwise qualified for 
membership, its application will be approved subject to such conditions 
as may be prescribed pursuant to the provisions of the Federal Reserve 
Act. When the conditions prescribed have been accepted by the applying 
bank, it should pay to the Federal Reserve Bank of its district one-half 
of the amount of its subscription and, upon receipt of advice from the 
Federal Reserve Bank as to the required amount, one-half of one percent 
of its paid-up subscription for each month from the period of the last 
dividend. 4 The remaining half of the bank's subscription 
shall be subject to call when deemed necessary by the Board. The bank's 
membership in the Federal Reserve System shall become effective on the 
date as of which a certificate of stock of the Federal Reserve Bank is 
issued to it pursuant to its application for membership or, in the case 
of a mutual savings bank which is not authorized to subscribe for stock, 
on the date as of which a certificate representing the acceptance of a 
deposit with the Federal Reserve Bank in place of a payment on account 
of a subscription to stock is issued to it pursuant to its application 
for membership.
---------------------------------------------------------------------------


    4 In the case of a mutual savings bank which is not 
permitted by the laws under which it was organized to purchase stock in 
a Federal Reserve Bank, it shall deposit with the Federal Reserve Bank 
an amount equal to the amount which it would have been required to pay 
in on account of a subscription to capital stock.
---------------------------------------------------------------------------



Sec. 208.6  Privileges and requirements of membership.

    Every State bank while a member of the Federal Reserve System--
    (a) Shall retain its full charter and statutory rights subject to 
the provisions of the Federal Reserve Act and other acts of Congress 
applicable to member State banks, to the regulations of the Board made 
pursuant to law, and to the conditions prescribed by the Board and 
agreed to by such bank prior to its admission;
    (b) Shall enjoy all the privileges and observe all the requirements 
of the Federal Reserve Act and other acts of Congress applicable to 
member State banks and of the regulations of the Board made pursuant to 
law which are applicable to member State banks;
    (c) Shall comply at all times with any and all conditions of 
membership prescribed by the Board in connection with the admission of 
such bank to membership in the Federal Reserve System; and
    (d) Shall not reduce its capital stock except with the prior consent 
of the Board. 5
---------------------------------------------------------------------------


    5 This applies to capital stock of all classes and to capital 
notes and debentures legally issued and purchased by the Reconstruction 
Finance Corporation which, under the Federal Reserve Act, are considered 
as capital stock for purposes of membership.
---------------------------------------------------------------------------



Sec. 208.7  Conditions of membership.

    (a) Pursuant to the authority contained in the first paragraph of 
section 9 of the Federal Reserve Act, which authorizes the Board to 
permit applying State banks to become members of the Federal Reserve 
System ``subject to the provisions of this act and to such conditions as 
it may prescribe pursuant thereto,'' the Board, except as hereinafter 
stated, will prescribe the following conditions of membership for each 
State bank hereafter applying for

[[Page 181]]

admission to the Federal Reserve System, and, in addition, such other 
conditions as may be considered necessary or advisable in the particular 
case:
    (1) Such bank at all times shall conduct its business and exercise 
its powers with due regard to the safety of its depositors, and, except 
with the permission of the Board of Governors of the Federal Reserve 
System, such bank shall not cause or permit any change to be made in the 
general character of its business or in the scope of the corporate 
powers exercised by it at the time of admission to membership. 6
---------------------------------------------------------------------------


    6 For many years, the Board prescribed, as standard conditions 
of membership, a condition which, in general, prohibited banks from 
engaging as a business in the sale of real estate loans to the public 
and certain conditions relating to the exercise of trust powers, 
including one which prohibited self-dealing in the investment of trust 
funds. The elimination of these conditions as standard conditions of 
membership does not reflect any change in the Board's position as to the 
undesirability of the practices formerly prohibited by such conditions; 
and attention is called to the fact that engaging as a business in the 
sale of real estate loans to the public or failing to conduct trust 
business in accordance with the applicable State laws and sound 
principles of trust administration may constitute unsafe or unsound 
practices and violate the condition set forth in this paragraph.
---------------------------------------------------------------------------

    (2) The net capital and surplus funds of such bank shall be adequate 
in relation to the character and condition of its assets and to its 
deposit liabilities and other corporate responsibilities.
    (b) The acquisition by a member State bank of the assets of another 
institution through merger, consolidation, or purchase may result in a 
change in the general character of its business or in the scope of its 
corporate powers within the meaning of the condition set forth in 
paragraph (a)(1) of this section, and if at any time a bank subject to 
such condition anticipates making any such acquisition a detailed report 
setting forth all the facts in connection with the transaction shall be 
made promptly to the Federal Reserve Bank of the district in which such 
bank is located.
    (c) If at any time, in the light of all the circumstances, the 
aggregate amount of a member State bank's net capital and surplus funds 
appears to be inadequate, the bank, within such period as shall be 
deemed by the Board to be reasonable for this purpose, shall increase 
the amount thereof to an amount which in the judgment of the Board shall 
be adequate in relation to the character and condition of its assets and 
to its deposit liabilities and other corporate responsibilities.



Sec. 208.8  Banking practices.

    (a) Scope. No State member bank shall engage in practices which are 
unsafe or unsound or which result in a violation of law, rule, or 
regulation, or which violate any condition imposed by or agreements 
entered into with the Board. This section outlines certain of the 
practices in which State member banks should not engage.
    (b) Waiver. A State member bank has the right to petition the Board 
to waive the conditions of this Sec. 208.8. A waiver may be granted upon 
a showing of good cause. The Board in its discretion may choose to 
limit, among other items, the scope, duration, and timing of the waiver.
    (c) Effect on other banking practices. Nothing in this section shall 
be construed as restricting in any manner the Board's authority to deal 
with any banking practice which is deemed to be unsafe or unsound or 
otherwise not in accordance with law, rule, or regulation or which 
violates any condition imposed in writing by the Board in connection 
with the granting of any application or other request by a State member 
bank, or any written agreement entered into by such bank with the Board. 
Compliance with the provisions of this section shall neither relieve a 
State member bank of its duty to conduct all operations in a safe and 
sound manner nor prevent the Board from taking whatever action it deems 
necessary and desirable to deal with general or specific acts or 
practices which, although perhaps not violating the provisions of this 
section, are considered nevertheless to be an unsafe or unsound banking 
practice.
    (d) Letters of credit and acceptances--(1) Definitions. For the 
purpose of this paragraph, standby letters of credit include every 
letter of credit (or similar

[[Page 182]]

arrangement however named or designated) which represents an obligation 
to the beneficiary on the part of the issuer (i) to repay money borrowed 
by or advanced to or for the account of the account party or (ii) to 
make payment on account of any evidence of indebtedness undertaken by 
the account party, or (iii) to make payment on account of any default by 
the account party in the performance of an obligation. 6a An 
ineligible acceptance is a time draft accepted by a bank, which does not 
meet the requirements for discount with a Federal Reserve Bank.
---------------------------------------------------------------------------


    6a As defined, standby letter of credit would not include 
(1) commercial letters of credit and similar instruments where the 
issuing bank expects the beneficiary to draw upon the issuer and which 
do not guaranty payment of a money obligation or (2) a guaranty or 
similar obligation issued by a foreign branch in accordance with and 
subject to the limitations of Regulation K.
---------------------------------------------------------------------------

    (2) Restrictions. (i) A State member bank shall not issue, extend, 
or amend a standby letter of credit (or other similar arrangement, 
however named or described) or make an ineligible acceptance or grant 
any other extension of credit if, in the aggregate, the amount of all 
standby letters of credit and ineligible acceptances issued, renewed, 
extended, or amended on or after the effective date of this amendment, 
when combined with other extensions of credit issued by the bank would 
exceed the legal limitations on loans imposed by the State (including 
limitations to any one customer or on aggregate extensions of credit) or 
exceed legal limits pertaining to loans to affiliates under Federal law 
(12 U.S.C. 371(c)): Provided, That, if any State has a separate 
limitation on the issuance of letters of credit or acceptances which 
apply to a standby letter of credit or to ineligible acceptances 
respectively, then the separate limitation shall apply in lieu of the 
standard loan limitation.
    (ii) No State member bank shall issue a standby letter of credit or 
ineligible acceptance unless the credit standing of the account party 
under any letter of credit, and the customer of an ineligible 
acceptance, is the subject of credit analysis equivalent to that 
applicable to a potential borrower in an ordinary loan situation.
    (iii) If several banks participate in the issuance of a standby 
letter of credit or ineligible acceptance under a bona fide binding 
agreement which provides that, regardless of any event, each participant 
shall be liable only up to a certain percentage or certain amount of the 
total amount of the standby letter of credit or ineligible acceptance 
issued, a State member bank need only include the amount of its 
participation for purposes of this section; otherwise, the entire amount 
of the letter of credit or acceptance must be included.
    (3) Disclosure; recordkeeping. The amount of all outstanding standby 
letters of credit and ineligible acceptances, regardless of when issued, 
shall be adequately disclosed in the bank's published financial 
statements.

Each State member bank shall maintain adequate control and subsidiary 
records of its standby letters of credit comparable to the records 
maintained in connection with the bank's direct loans so that at all 
times the bank's potential liability thereunder and the bank's 
compliance with this paragraph (d) may be readily determined.
    (4) Exceptions. A standby letter of credit is not subject to the 
restrictions set forth above in the following situations:
    (i) Prior to or at the time of issuance of the credit, the issuing 
bank is paid an amount equal to the bank's maximum liability under the 
standby letter of credit; or
    (ii) Prior to or at the time of issuance, the bank has set aside 
sufficient funds in a segregated, clearly earmarked deposit account to 
cover the bank's maximum liability under the standby letter of credit.
    (e) [Reserved]
    (f) State member banks as transfer agents. (1) On or after December 
1, 1975, no State member bank or any of its subsidiaries shall act as 
transfer agent, as defined in section 3(a)(25) of the Securities 
Exchange Act of 1934, (Act) with respect to any security registered 
under section 12 of the Act or which would be required to be registered 
except for the exemption from registration provided by subsection 
(g)(2)(B) or (g)(2)(G) of that section, unless it shall

[[Page 183]]

have filed a registration statement with the Board in conformity with 
the requirements of Form TA-1, which registration statement shall have 
become effective as hereinafter provided. Any registration statement 
filed by a State member bank or its subsidiary shall become effective on 
the thirtieth day after filing with the Board unless the Board takes 
affirmative action to accelerate, deny or postpone such registration in 
accordance with the provisions of section 17A(c) of the Act. Such 
filings with the Board will constitute filings with the Securities and 
Exchange Commission for purposes of section 17(c)(1) of the Act.
    (2) If the information contained in Form TA-1 becomes inaccurate, 
misleading or incomplete for any reason, the bank or its subsidiary 
shall, within sixty calendar days thereafter, file an amendment to Form 
TA-1 correcting the inaccurate, misleading or incomplete information.
    (3) Each registration statement on Form TA-1 or amendment thereto 
shall constitute a report or application within the meaning of sections 
17, 17A(c) and 32(a) of the Act.
    (g) State member banks as registered clearing agencies--(1) 
Requirement of notice. Any State, member bank or any of its subsidiaries 
that is a registered clearing agency pursuant to section 17A(b) of the 
Securities Exchange Act of 1934 (the Act), which imposes any final 
disciplinary sanction on any participant therein, denies participation 
to any applicant or prohibits or limits any person in respect to access 
to services offered by such registered clearing agency, shall file with 
the Board and the appropriate regulatory agency (if other than the 
Board) for a participant or applicant notice thereof in the manner 
prescribed herein.
    (2) Notice of final disciplinary action. Any registered clearing 
agency for which the Board is the appropriate regulatory agency that 
takes any final disciplinary action with respect to any participant 
shall promptly file a notice thereof with the Board in accordance with 
paragraph (g)(3) of this section. For the purposes of this paragraph 
final disciplinary action shall mean the imposition of any disciplinary 
sanction pursuant to section 17A(b)(3)(G) of the Act or other action of 
a registered clearing agency which, after notice and opportunity for 
hearing, results in any final disposition of charges of:
    (i) One or more violations of the rules of such registered clearing 
agency; or
    (ii) Acts or practices constituting a statutory disqualification of 
a type defined in paragraph (iv) or (v) (except prior convictions) of 
section 3(a)(39) of the Act.

However, if a registered clearing agency fee schedule specifies certain 
charges for errors made by its participants in giving instructions to 
the registered clearing agency which are de minimis on a per error basis 
and whose purpose is in part to provide revenues to the registered 
clearing agency to compensate it for effort expended in beginning to 
process an erroneous instruction, such error charges shall not be 
considered a final disciplinary action for purposes of this paragraph.
    (3) Content of notice required by paragraph (g)(2). Any notice filed 
pursuant to paragraph (g)(2) of this section shall consist of the 
following, as appropriate;
    (i) The name of the respondent concerned together with the 
respondent's last known address as reflected on the records of the 
registered clearing agency and the name of the person, committee, or 
other organizational unit that brought the charges involved; except 
that, as to any respondent who has been found not to have violated a 
provision covered by a charge, identifying information with respect to 
such person may be deleted insofar as the notice reports the disposition 
of that charge and, prior to the filing of the notice, the respondent 
does not request that identifying information be included in the notice.
    (ii) A statement describing the investigative or other origin of the 
action;
    (iii) As charged in the proceeding, the specific provision or 
provisions of the rules of the registered clearing agency violated by 
such person or the statutory disqualification referred to in paragraph 
(g)(2)(ii) of this section and a statement describing the answer of the 
respondent to the charges;
    (iv) A statement setting forth findings of fact with respect to any 
act or practice in which such respondent was charged with having engaged 
in or

[[Page 184]]

omitted; the conclusion of the registered clearing agency as to whether 
such respondent violated any rule or was subject to a statutory 
disqualification as charged; and a statement of the registered clearing 
agency in support of its resolution of the principal issues raised in 
the proceedings;
    (v) A statement describing any sanction imposed, the reasons 
therefor, and the date upon which such sanction has or will become 
effective; and
    (vi) Such other matters as the registered clearing agency may deem 
relevant.
    (4) Notice of final denial, prohibition, termination or limitation 
based on qualification or administrative rules. Any registered clearing 
agency for which the Board is the appropriate regulatory agency that 
takes any final action which denies participation to, or conditions the 
participation of, any person or prohibits or limits any person with 
respect to access to services offered by the clearing agency based on an 
alleged failure of such person to:
    (i) Comply with the qualification standards prescribed by the rules 
of such registered clearing agency pursuant to section 17A(b)(4)(B) of 
the Act; or
    (ii) Comply with any administrative requirements of such registered 
clearing agency (including failure to pay entry or other dues or fees or 
to file prescribed forms or reports) not involving charges of violations 
which may lead to a disciplinary sanction shall not considered a final 
disciplinary action for purposes of paragraph (g)(2) of this section, 
but notice thereof shall be promptly filed with the Board and the 
appropriate regulatory agency (if other than the Board) for the affected 
person in accordance with paragraph (g)(5) of this section; provided 
however, that no such action shall be considered final pursuant to this 
subparagraph that results merely from, a notice of such failure to the 
person affected, if such person has not sought an adjudication of the 
matter, including a hearing, or otherwise exhausted his administrative 
remedies within the registered clearing agency with respect to such a 
matter.
    (5) Content of notice required by paragraph (g)(4). Any notice filed 
pursuant to paragraph (g)(4) of this section shall consist of the 
following, as appropriate:
    (i) The name of each person concerned together with each such 
person's last known address as reflected in the records of the 
registered clearing agency;
    (ii) The specific grounds upon which the action of the registered 
clearing agency was based, and a statement describing the answer of the 
person concerned;
    (iii) A statement setting forth findings of fact and conclusions as 
to each alleged failure of the person to comply with qualification 
standards, or comply with administrative obligations, and a statement of 
the registered clearing agncy in support of the resolution of the 
principal issues raised in the proceeding;
    (iv) The date upon which such action has or will become effective; 
and
    (v) Such other matters as the registered clearing agency deems 
relevant.
    (6) Notice of final action based upon prior adjudicated statutory 
disqualifications. Any registered clearing agency for which the Board is 
the appropriate regulatory agency that takes any final action with 
respect to any person that:
    (i) Denies or conditions participation to any person or prohibits or 
limits access to service offered by such registered clearing agency; and
    (ii) Is based upon a statutory disqualification of a type defined in 
paragraph (A), (B) or (C) of section 3(a)(39) of the Act of consisting 
of a prior conviction as described in subparagraph (E) of said section 
3(a)(39) shall promptly file notice thereof with the Board and the 
appropriate regulatory agency (if other than the Board) for the affected 
person in accordance with paragraph (g)(7) of this section; provided, 
however, that no such action shall be considered final pursuant to this 
paragraph which results merely from a notice of such failure to the 
person affected, if such person has not sought an adjudication of the 
matter, including a hearing, or otherwise exhausted his administrative 
remedies within the registered clearing agency with respect to such a 
matter.
    (7) Content of notice required by paragraph (g)(6) of this section. 
Any notice filed pursuant to paragraph (g)(6) of

[[Page 185]]

this section shall consist of the following, as appropriate:
    (i) The name of the person concerned, together with each such 
person's last known address as reflected in the records of the 
registered clearing agency;
    (ii) A statement setting forth the principal issues raised, the 
answer of any person concerned, and a statement of the registered 
clearing agency in support of its resolution of the principal issues 
raised in the proceeding;
    (iii) Any description furnished by or on behalf of the person 
concerned of the activities engaged in by the person since the 
adjudication upon which the disqualification is based;
    (iv) A copy of the order or decision of the court, the appropriate 
regulatory agency or the self-regulatory organization which adjudicated 
the matter giving rise to such statutory disqualification;
    (v) The nature of the action taken and the date upon which such 
action is to be made effective; and
    (vi) Such other matters as the registered clearing agency deems 
relevant.
    (8) Notice of summary suspension of participation. Any registered 
clearing agency for which the Board is the appropriate regulatory agency 
that summarily suspends or closes the accounts of a participant pursuant 
to the provisions of section 17A(b)(5)(C) of the Act shall within one 
business day after the effectiveness of such action file notice thereof 
with the Board and the appropriate regulatory agency for the participant 
(if other than the Board) of such action in accordance with paragraph 
(g)(9) of this section.
    (9) Content of notice of summary suspension of participation. Any 
notice pursuant to paragraph (g)(8) of this section shall contain at 
least the following information, as appropriate:
    (i) The name of the participant concerned together with the 
participant's last known address as reflected in the records of the 
registered clearing agency;
    (ii) The date upon which such summary action has or will become 
effective;
    (iii) If such summary action is based upon the provisions of section 
17A(b)(5)(C)(i) of the Act, a copy of the relevant order or decision of 
the self-regulatory organization if available to the registered clearing 
agency;
    (iv) If such summary action is based upon the provisions of section 
17A(b)(5)(C)(ii) of the Act, a statement describing the default of any 
delivery of funds or securities to the registered clearing agency;
    (v) If such summary action is based upon the provisions of section 
17A(b)(5)(C)(iii) of the Act, a statement describing the financial or 
operating difficulty of the participant based upon which the registered 
clearing agency determined that such suspension and closing of accounts 
was necessary for the protection of the clearing agency, its 
participants, creditors or investors;
    (vi) The nature and effective date of the suspension; and
    (vii) Such other matters as the registered clearing agency deems 
relevant.
    (h) Applications for stays of disciplinary sanctions or summary 
suspensions by a registered clearing agency. If a registered clearing 
agency for which the Securities and Exchange Commission is not the 
appropriate regulatory agency imposes any final disciplinary sanction 
pursuant to section 17A(b)(3)(G) of the Act, or summarily suspends or 
limits or prohibits access pursuant to section 17A(b)(5)(C) of the Act, 
any participant aggrieved thereby for which the Board is the appropriate 
regulatory agency may file with the Board, by telegram or otherwise, a 
request for a stay of imposition of such action. Such request shall be 
in writing and shall include a statement as to why such stay should be 
granted.
    (i) Application for review of final disciplinary sanctions, denials 
of participation or prohibitions or limitations of access to services 
imposed by registered clearing agencies--(1) Scope. Proceedings on an 
application to the Board under section 19(d)(2) of the Act by a person 
that is subject to the Board's jurisdiction for review of any action by 
a registered clearing agency for which the Securities and Exchange 
Commission is not the appropriate regulatory agency shall be governed by 
this paragraph.
    (2) Procedure. (i) An application for review pursuant to section 
19(d)(2) of the Act shall be filed with the Board within 30 days after 
notice is filed by

[[Page 186]]

the registered clearing agency pursuant to section 19(d)(1) of the Act 
and received by the aggrieved person applying for review, or within such 
longer period as the Board may determine. The Secretary of the Board 
shall serve a copy of the application on the registered clearing agency, 
which shall, within ten days after receipt of the application, certify 
and file with the Board one copy of the record upon which the action 
complained was taken, together with three copies of an index to such 
record. The Secretary shall serve upon the parties copies of such index 
and any papers subsequently filed.
    (ii) Within 20 days after receipt of a copy of the index, the 
applicant shall file a brief or other statement in support of his 
application which shall state the specific grounds on which the 
application is based, the particular findings of the registered clearing 
agency to which objection is taken, and the relief sought. Any 
application not perfected by such timely brief or statement may be 
dismissed as abandoned.
    (iii) Within 20 days after receipt of the applicant's brief or 
statement the registered clearing agency may file an answer thereto, and 
within 10 days of receipt of any such answer the applicant may file a 
reply. Any such papers not filed within the time provided by items (i), 
(ii), or (iii) will not be received except upon special permission of 
the Board.
    (iv) On its own motion, the Board may direct that the record under 
review be supplemented with such additional evidence as it may deem 
relevant. Nevertheless, the registered clearing agency and persons who 
may be aggrieved by such clearing agency's action shall not be entitled 
to adduce evidence not presented in the proceedings before the 
registered clearing agency unless it is shown to the satisfaction of the 
Board that such additional evidence is material and that there were 
reasonable grounds for failure to present such evidence in the 
proceedings before the registered clearing agency. Any request for leave 
to adduce additional evidence shall be filed promptly so as not to delay 
the disposition of the proceeding.
    (v) Oral argument before the Board may be requested by the applicant 
or the registered clearing agency as follows:
    (A) By the applicant with his brief or statement or within 10 days 
after receipt of the registered clearing agency's answer; or
    (B) By the registered clearing agency with its answer.

The Board, in its discretion, may grant or deny any request for oral 
argument and, where it deems it appropriate to do so, the Board will 
consider an application on the basis of the papers filed by the parties, 
without oral argument.
    (vi) The Board's Rule of Practice for Formal Hearings shall apply to 
review proceedings under this rule to the extent that they are not 
inconsistent with this rule. Attention is directed particularly to 
Sec. 263.21 of the Rules of Practice relating to formal requirements to 
the papers filed.
    (j) State member banks, and subsidiaries, departments, and divisions 
thereof, which are municipal securities dealers. (1) For purposes of 
this paragraph, the terms herein have the meanings given them in section 
3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)) and the 
rules of the Municipal Securities Rulemaking Board. The term Act shall 
mean the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.).
    (2) On and after October 31, 1977, a State member bank of the 
Federal Reserve System, or a subsidiary or a department or a division 
thereof, that is a municipal securities dealer shall not permit a person 
to be associated with it as a municipal securities principal or 
municipal securities representative unless it has filed with the Board 
an original and two copies of Form MSD-4, ``Uniform Application for 
Municipal Securities Principal or Municipal Securities Representative 
Associated with a Bank Municipal Securities Dealer.'' completed in 
accordance with the instructions contained therein, for that person. 
Form MSD-4 is prescribed by the Board for purposes of paragraph (b) of 
Municipal Securities Rulemaking Board Rule G-7, ``Information Concerning 
Associated Persons.''
    (3) Whenever a municipal securities dealer receives a statement 
pursuant

[[Page 187]]

to paragraph (c) of Municipal Securities Rulemaking Board Rule G-7, 
``Information Concerning Associated Persons,'' from a person for whom it 
has filed a Form MSD-4 with the Board pursuant to paragraph (j)(2) of 
this section, such dealer shall within ten days thereafter, file three 
copies of that statement with the Board accompanied by an original and 
two copies of a transmittal letter which includes the name of the dealer 
and a reference to the material transmitted identifying the person 
involved and is signed by a municipal securities principal associated 
with the dealer.
    (4) Within thirty days after the termination of the association of a 
municipal securities principal or municipal securities representative 
with a municipal securities dealer that has filed a Form MSD-4 with the 
Board for that person pursuant to paragraph (j)(2) of this section, such 
dealer shall file an original and two copies of a notification of 
termination with the Board on Form MSD-5, ``Uniform Termination Notice 
for Municipal Securities Principal or Municipal Securities 
Representative Associated With a Bank Municipal Securities Dealer,'' 
completed in accordance with instructions contained therein.
    (5) A municipal securities dealer that files a Form MSD-4, Form MSD-
5, or statement with the Board under this paragraph shall retain a copy 
of each such Form MSD-4, Form MSD-5, or statement until at least three 
years after the termination of the employment or other association with 
such dealer of the municipal securities principal or municipal 
securities representative to whom the form or statement relates.
    (6) The date that the Board receives a Form MSD-4, Form MSD-5, or 
statement filed with the Board under this paragraph shall be the date of 
filing. Such a form MSD-4, Form MSD-5, or statement which is not 
prepared and executed in accordance with the applicable requirements may 
be returned as unacceptable for filing. Acceptance for filing shall not 
constitute any finding that a Form MSD-4, Form MSD-5 or statement has 
been completed in accordance with the applicable requirements or that 
any information reported therein is true, current, complete, or not 
misleading. Every Form MSD-4, Form MSD-5, or statement filed with the 
Board under this paragraph shall constitute a filing with the Securities 
and Exchange Commission for purposes of section 17(c)(1) of the Act (15 
U.S.C. 78q(c)(1)) and a report, application, or document within the 
meaning of section 32(a) of the Act (15 U.S.C. 78ff(a)).
    (k) [Reserved]

    Editorial Note: For Federal Register citations affecting Sec. 208.8, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 208.9  Establishment or maintenance of branches.

    (a) In general. Every State bank which is or hereafter becomes a 
member of the Federal Reserve System is subject to the provisions of 
section 9 of the Federal Reserve Act relating to the establishment and 
maintenance of branches 7 in the United States or in a 
dependency or insular possession thereof or in a foreign country. Under 
the provisions of section 9, member State banks establishing and 
operating branches in the United States beyond the corporate limits of 
the city, town, or village in which the parent bank is situated must 
conform to the same terms, conditions, limitations, and restrictions as 
are applicable to the establishment of branches by national banks under 
the provisions of section 5155 of the Revised Statutes of the United 
States relating to the establishment of branches in the United States, 
except that the approval of any such branches must be obtained from the 
Board rather than from the Comptroller of the Currency. The approval of 
the Board must likewise be obtained before any member State bank 
establishes any branch after July 15, 1952, within the corporate limits 
of the city, town, or village in which the parent

[[Page 188]]

bank is situated (except within the District of Columbia). Under the 
provisions of section 9, member State banks establishing and operating 
branches in a dependency or insular possession of the United States or 
in a foreign country must conform to the terms, conditions, limitations, 
and restrictions contained in section 25 of the Federal Reserve Act 
relating to the establishment by national banks of branches in such 
places.
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    7  Section 5155 of the Revised Statutes of the United 
States provides that: (f) The term branch as used in this section shall 
be held to include any branch bank, branch office, branch agency, 
additional office, or any branch place of business located in any State 
or territory of the United States or in the District of Columbia at 
which deposits are received, or checks paid, or money lent.''
---------------------------------------------------------------------------

    (b) Branches in the United States. (1) Before a member State bank 
establishes a branch (except within the District of Columbia), it must 
obtain the approval of the Board.
    (2) Before any nonmember State bank having a branch or branches 
established after February 25, 1927, beyond the corporate limits of the 
city, town, or village in which the bank is situated is admitted to 
membership in the Federal Reserve System, it must obtain the approval of 
the Board for the retention of such branches.
    (3) A member State bank located in a State which by statute law 
permits the maintenance of branches within county or greater limits may, 
with the approval of the Board, establish and operate, without regard to 
the capital requirements of section 5155 of the Revised Statutes, a 
seasonal agency in any resort community within the limits of the county 
in which the main office of such bank is located for the purpose of 
receiving and paying out deposits, issuing and cashing checks and 
drafts, and doing business incident thereto, if no bank is located and 
doing business in the place where the proposed agency is to be located; 
and any permit issued for the establishment of such an agency shall be 
revoked upon the opening of a State or national bank in the community 
where the agency is located.
    (4) Except as stated in paragraph (b)(3) of this section, in order 
for a member State bank to establish a branch beyond the corporate 
limits of the city, town, or village in which it is situated, the 
aggregate capital stock of the member State bank and its branches shall 
at no time be less than the aggregate minimum capital stock required by 
law for the establishment of an equal number of national banking 
associations situated in the various places where such member State bank 
and its branches are situated. 8
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    8  The requirement of this paragraph is met if the aggregate 
capital stock of a member State bank having branches is not less than 
the total amount of capital stock which would be required for the 
establishment of one national bank in each of the places in which the 
head office and branches of the member State banks are located, 
irrespective of the number of offices which the bank may have in any 
such place. There are no additional capital requirements for additional 
branches within the city, town, or village in which the head office is 
located.
---------------------------------------------------------------------------

    (5) A member State bank may not establish a branch beyond the 
corporate limits of the city, town, or village in which it is situated 
unless such establishment and operation are at the time authorized to 
State banks by the statute law of the State in question by language 
specifically granting such authority affirmatively and not merely by 
implication or recognition.
    (6) Any member State bank which, on February 25, 1927, had 
established and was actually operating a branch or branches in 
conformity with the State law is permitted to retain and operate the 
same while remaining a member of the Federal Reserve System, regardless 
of the location of such branch or branches.
    (7) The removal of a branch of a member State bank from one town to 
another town constitutes the establishment of a branch in such other 
town and, accordingly, requires the approval of the Board. The removal 
of a branch of a member State bank from one location in a town to 
another location in the same town will require the approval of the Board 
if the circumstances of the removal are such that the effect thereof is 
to constitute the establishment of a new branch as distinguished from 
the mere relocation of an existing branch in the immediate neighborhood 
without affecting the nature of its business or customers served.
    (c) Application for approval of branches in United States. Any 
member State bank desiring to establish a branch should submit a request 
for the approval by the Board of any such branch

[[Page 189]]

to the Federal Reserve Bank of the district in which the bank is 
located. Any nonmember State bank applying for membership and desiring 
to retain any branch established after February 25, 1927, beyond the 
corporate limits of the city, town, or village in which the bank is 
situated should submit a similar request. Any such request should be 
accompanied by advice as to the scope of the functions and the character 
of the business which are or will be performed by the branch and 
detailed information regarding the policy followed or proposed to be 
followed with reference to supervision of the branch by the head office; 
and the bank may be required in any case to furnish additional 
information which will be helpful to the Board in determining whether to 
approve such request.
    (d) Foreign branches. With prior Board approval, a member state bank 
having capital and surplus of $1,000,000 or more may establish branches 
in foreign countries, as defined in Sec. 211.2(f) of Regulation K (12 
CFR 211.2(f)). If a member State bank has established a branch in such a 
country, it may, unless otherwise advised by the Board, establish other 
branches therein after 30 days' notice to the Board with respect to each 
such branch.
[Reg. H, 17 FR 8006, Sept. 4, 1952, as amended at 28 FR 8361, Aug. 15, 
1963. Redesignated at 39 FR 5482, Feb. 13, 1974 and amended at 47 FR 
19321, May 5, 1982]



Sec. 208.10  Waiver of reports of affiliates.

    Pursuant to section 21 of the Federal Reserve Act (12 U.S.C. 486), 
the Board of Governors of the Federal Reserve System waives the 
requirement for the submission of reports of affiliates of State bank 
members of the Federal Reserve System, unless such reports are 
specifically requested by the Board of Governors. The Board of Governors 
of the Federal Reserve System may require the submission of reports 
which are necessary to disclose fully relations between member banks and 
their affiliates and the effect thereof upon the affairs of member 
banks.
[Reg. H, 17 FR 8006, Sept. 4, 1952, as amended at 34 FR 5928, Mar. 29, 
1969; 39 FR 788, Jan. 3, 1974; 39 FR 1974, Jan. 16, 1974. Redesignated 
at 39 FR 5482, Feb. 13, 1974; 54 FR 7183, Feb. 17, 1989; 59 FR 55988, 
Nov. 10, 1994]



Sec. 208.11  Voluntary withdrawal from Federal Reserve System.

    (a) General. Any State bank desiring to withdraw from membership in 
a Federal Reserve Bank may do so after six months' written notice has 
been filed with the Board; 9 and the Board, in its 
discretion, may waive such six months' notice in any individual case and 
may permit such bank to withdraw from membership in a Federal Reserve 
Bank, subject to such conditions as the Board may prescribe, prior to 
the expiration of six months from the date of the written notice of its 
intention to withdraw.
---------------------------------------------------------------------------


    9  Under specific provisions of section 9 of the Federal 
Reserve Act, however, no Federal Reserve Bank shall, except upon express 
authority of the Board, cancel within the same calendar year more than 
twenty-five percent of its capital stock for the purpose of effecting 
voluntary withdrawals during that year. All applications for voluntary 
withdrawals are required by the law to be dealt with in the order in 
which they are filed with the Board.
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    (b) Notice of intention of withdrawal. (1) Any State bank desiring 
to withdraw from membership in a Federal Reserve Bank should signify its 
intention to do so, with the reasons therefor, in a letter addressed to 
the Board and mailed to the Federal Reserve Bank of which such bank is a 
member. Any such bank desiring to withdraw from membership prior to the 
expiration of six months from the date of written notice of its 
intention to withdraw should so state in the letter signifying its 
intention to withdraw and should state the reason for its desire to 
withdraw prior to the expiration of six months.
    (2) Every notice of intention of a bank to withdraw from membership 
in the Federal Reserve System and every application for the waiver of 
such notice should be accompanied by a certified copy of a resolution 
duly adopted by the board of directors of such bank authorizing the 
withdrawal of such bank from membership in the Federal Reserve System 
and authorizing a certain officer or certain officers of such bank to 
file such notice or application, to surrender for cancellation the 
Federal Reserve Bank stock held by such bank, to receive and receipt for 
any moneys or other property due to such

[[Page 190]]

bank from the Federal Reserve Bank and to do such other things as may be 
necessary to effect the withdrawal of such bank from membership in the 
Federal Reserve System.
    (3) Notice of intention to withdraw or application for waiver of six 
months' notice of intention to withdraw by any bank which is in the 
hands of a conservator or other State official acting in a capacity 
similar to that of a conservator should be accompanied by advice from 
the conservator or other such State official that he joins in such 
notice or application.
    (c) Time and method of effecting actual withdrawal. Upon the 
expiration of six months after notice of intention to withdraw or upon 
the waiving of such six months' notice by the Board, such bank may 
surrender its stock and its certificate of membership to the Federal 
Reserve Bank and request that same be canceled and that all amounts due 
to it from the Federal Reserve Bank be refunded.10  Unless 
withdrawal is thus effected within eight months after notice of 
intention to withdraw is first given, or unless the bank requests and 
the Board grants an extension of time, such bank will be presumed to 
have abandoned its intention of withdrawing from membership and will not 
be permitted to withdraw without again giving six months' written notice 
or obtaining the waiver of such notice.
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    10  A bank's withdrawal from membership in the Federal 
Reserve System is effective on the date on which the Federal Reserve 
Bank stock held by it is duly canceled. Until such stock has been 
canceled, such bank remains a member of the Federal Reserve System, is 
entitled to all the privileges of membership, and is required to comply 
with all provisions of law and all regulations of the Board pertaining 
to member banks and with all conditions of membership applicable to it. 
Upon the cancellation of such stock, all rights and privileges of such 
bank as a member bank shall terminate.
    Upon the cancellation of such stock, and after due provision has 
been made for any indebtedness due or to become due to the Federal 
Reserve Bank, such bank shall be entitled to a refund of its cash paid 
subscription with interest at the rate of one-half of one percent per 
month from the date of last dividend, the amount refunded in no event to 
exceed the book value of the stock at that time, and shall likewise be 
entitled to the repayment of deposits and of any other balance due from 
the Federal Reserve Bank.
---------------------------------------------------------------------------

    (d) Withdrawal of notice. Any bank which has given notice of its 
intention to withdraw from membership in a Federal Reserve Bank may 
withdraw such notice at any time before its stock has been canceled and 
upon doing so may remain a member of the Federal Reserve System. The 
notice rescinding the former notice should be accompanied by a certified 
copy of an appropriate resolution duly adopted by the board of directors 
of the bank.
[Reg. H, 17 FR 8006, Sept. 4, 1952. Redesignated at 39 FR 5482, Feb. 13, 
1974, as amended at 59 FR 55988, Nov. 10, 1994]



Sec. 208.12  Board forms.

    All forms referred to in this part and all such forms as they may be 
amended from time to time shall be a part of the regulations in this 
part.
[Reg. H, 17 FR 8006, Sept. 4, 1952. Redesignated at 39 FR 5482, Feb. 13, 
1974]



Sec. 208.13  Capital adequacy.

    The standards and guidelines by which the capital adequacy of state 
member banks will be evaluated by the Board are set forth in appendix A 
and appendix E for risk-based capital purposes, and, with respect to the 
ratios relating capital to total assets, in appendix B to part 208 and 
in appendix B to the Board's Regulation Y, 12 CFR part 225.
[Reg. H, 61 FR 47369, Sept. 6, 1996]



Sec. 208.14  Procedures for monitoring Bank Secrecy Act compliance.

    (a) Purpose. This section is issued to assure that all state member 
banks establish and maintain procedures reasonably designed to assure 
and monitor their compliance with the provisions of subchapter II of 
chapter 53 of title 31, United States Code, the Bank Secrecy Act, and 
the implementing regulations promulgated thereunder by the Department of 
Treasury at 31 CFR part 103, requiring recordkeeping and reporting of 
currency transactions.
    (b) Establishment of compliance program. On or before April 27, 
1987, each bank shall develop and provide for the continued 
administration of a program

[[Page 191]]

reasonably designed to assure and monitor compliance with the 
recordkeeping and reporting requirements set forth in subchapter II of 
chapter 53 of title 31, United States Code, the Bank Secrecy Act, and 
the implementing regulations promulgated thereunder by the Department of 
Treasury at 31 CFR part 103. The compliance program shall be reduced to 
writing, approved by the board of directors, and noted in the minutes.
    (c) Contents of compliance program. The compliance program shall, at 
a minimum:
    (1) Provide for a system of internal controls to assure ongoing 
compliance;
    (2) Provide for independent testing for compliance to be conducted 
by bank personnel or by an outside party;
    (3) Designate an individual or individuals responsible for 
coordinating and monitoring day-to-day compliance; and
    (4) Provide training for appropriate personnel.

(Approved by the Office of Management and Budget under control number 
7100-0196)

[Reg. H, 52 FR 2860, Jan. 27, 1987]



Sec. 208.15  Agricultural loan loss amortization.

    (a) Definitions. For purposes of this section:
    (1) Agricultural Bank means a bank:
    (i) The deposits of which are insured by the Federal Deposit 
Insurance Corporation;
    (ii) Which is located in an area of the country the economy of which 
is dependent on agriculture;
    (iii) Which has total assets of $100,000,000 or less as of the most 
recent Report of Condition; and
    (iv) Which has:
    (A) At least 25 percent of its total loans in qualified agricultural 
loans and agriculturally-related other property; or
    (B) Less than 25 percent of its total loans in qualified 
agricultural loans and agriculturally-related other property but which 
bank the Board or the Reserve Bank in whose District the bank is located 
or its primary state regulator has recommended to the Federal Deposit 
Insurance Corporation for eligibility under this part.
    (2) Qualified agricultural loan means:
    (i) Loans qualifying as loans to finance agricultural production and 
other loans to farmers or as loans secured by farm land for purposes of 
Schedule RC-C of the FFIEC Consolidated Report of Condition or such 
other comparable schedule;
    (ii) Loans secured by farm machinery,
    (iii) Other loans that a bank proves to be sufficiently related to 
agriculture for classification as an agricultural loan by the Federal 
Reserve; and
    (iv) The remaining unpaid balance of any loans, described in 
paragraphs (a)(2) (i), (ii) and (iii) of this section, that have been 
charged off since January 1, 1984, and that qualify for deferral under 
this section.
    (3) Accepting Official means:
    (i) The Reserve Bank in whose District the bank is located; or
    (ii) The Director of the Division of Banking Supervision and 
Regulation in cases in which the Reserve Bank cannot determine that the 
bank qualifies under the regulation.
    (4) Agriculturally-related other property means any property, real 
or personal, that the bank owned on January 1, 1983, and any such 
additional property that it acquires prior to January 1, 1992, in 
connection with a qualified agricultural loan. For the purposes of 
Secs. 208.15(a)(1)(iv) and 205.15(e), the value of such property shall 
include the amount previously charged off as loss.
    (b) Loss amortization and reappraisal. (1) Provided That there is no 
evidence that the loss resulted from fraud or criminal abuse on the part 
of the bank, its officers, directors, or principal shareholders, a bank 
that has been accepted under this section may, in the manner described 
below, amortize in its Reports of Condition and Income:
    (i) Any loss that the bank would be required to reflect in its 
financial statements for any period between and including 1984 and 1991.
    (ii) Any loss that the bank would be required to reflect in its 
financial statements for any period between and including 1983 and 1991 
resulting from a reappraisal or sale of agriculturally-related other 
property.
    (2) Amortization under this section shall be computed over a period 
not to

[[Page 192]]

exceed seven years on a quarterly straight-line basis commencing in the 
first quarter after the loan was or is charged off so as to be fully 
amortized not later than December 31, 1998.
    (c) Accounting for amortization. Any bank which is permitted to 
amortize losses in accordance with paragraph (b) of this section, may 
restate its capital and other relevant accounts and account for future 
authorized deferrals and amortizations in accordance with the 
instructions to the FFIEC Consolidated Reports of Condition and Income. 
Any resulting increase in the capital account shall be included in 
primary capital as per Sec. 208.13 of this part.
    (d) Eligibility. A proposal submitted in accord with paragraph (f) 
of this section shall be accepted, subject to the conditions described 
in paragraph (e) of this section, if the Accepting Official finds:
    (1) The proposing bank is an agricultural bank;
    (2) The proposing bank's current capital is in need of restoration, 
but the bank remains an economically viable, fundamentally sound 
institution;
    (3) There is no evidence that fraud or criminal abuse by the bank or 
its officers, directors, or principal shareholders led to significant 
losses on qualified agricultural loans or from a reappraisal or sale of 
agriculturally-related other property; and
    (4) The proposing bank has submitted a capital plan approved by the 
Accepting Official that will restore its capital to an acceptable level.
    (e) Conditions on acceptance. All acceptances of proposals shall be 
subject to the following conditions:
    (1) The bank shall fully adhere to the approved capital plan and 
shall obtain the prior approval of the Accepting Official for any 
modifications to the plan;
    (2) With respect to each asset subject to loss deferral under the 
program, the bank shall maintain accounting records adequate to document 
the amount and timing of the deferrals, repayments and amortizations;
    (3) The financial condition of the bank shall not deteriorate to the 
point where it is no longer a vaible, fundamentally sound institution;
    (4) The bank agrees to make a reasonable effort, consistent with 
safe and sound banking practices, to maintain in its loan portfolio a 
percentage of agricultural loans, including agriculturally-related other 
property, not lower than the percentage of such loans in its loan 
portfolio on January 1, 1986; and
    (5) The bank shall agree to provide the Accepting Official, upon 
request, with such information as the Accepting Official deems necessary 
to monitor the bank's amortization, its compliance with conditions, and 
its continued eligibility.
    (f) Submission of proposals. (1) A bank wishing to amortize losses 
on qualified agricultural loans or from reappraisal or sale of 
agriculturally-related other property shall submit a proposal to the 
appropriate Accepting Official.
    (2) The proposal shall contain the following information:
    (i) Name and address of the bank;
    (ii) Information establishing that the bank is located in an area 
the economy of which is dependent on agriculture; the information could 
consist of a description of the bank's location, dominant lines of 
commerce in its service area, and any other information the bank 
believes will support the contention that it is located in such an area.
    (iii) A copy of the bank's most recent Report of Condition and 
Income;
    (iv) If the Report of Condition and Income fails to show that at 
least 25 percent of the bank's total loans are qualified agricultural 
loans, the basis upon which the bank believes that it should be declared 
eligible to amortize losses;
    (v) A capital plan demonstrating that the bank will achieve an 
acceptable capital level not later than the end of the bank's 
amortization period. The plan should provide for a realistic improvement 
in the bank's capital, over the course of the amortization period, from 
earnings retention, capital injections, or other sources; and include 
specific information regarding dividend levels, compensation to 
directors, executive officers and individuals who have a controlling 
interest and in turn to their related interests, and payments for 
services or products furnished by affiliated companies.
    (vi) A list of the loans and agriculturally-related other property 
upon which

[[Page 193]]

the bank proposes to defer loss including for each such loan or 
property, the following information:
    (A) The name of the borrower, the amount of the loan that resulted 
in the loss, and the amount of the loss;
    (B) The date on which the loss was declared;
    (C) The basis upon which the loss resulted from a qualified 
agricultural loan;
    (vii) A certification by the bank's chief executive officer that 
there is no evidence that the losses resulted from fraud or criminal 
abuse by the bank, its officers, directors, or principal shareholders;
    (viii) A copy of a resolution by the bank's Board of Directors 
authorizing submission of the proposal; and
    (ix) Such other information as the Accepting Official may require.
    (g) Revocation of eligibility. The failure to comply with any 
condition in an acceptance or with the capital restoration plan is 
grounds for revocation of acceptance for loss amortization and for an 
administrative action against the bank under 12 U.S.C. 1818(b). 
Additionally, acceptance of a bank for loss amortization will not 
foreclose any administrative action against the bank that the Board may 
deem appropriate.
[Reg. H, 52 FR 42090, Nov. 3, 1987, as amended at 53 FR 20812, June 7, 
1988]



Sec. 208.16  Reporting requirements for State member banks subject to the Securities Exchange Act of 1934.

    (a) Filing requirements. Except as otherwise provided in this 
section, a State member bank the securities of which are subject to 
registration pursuant to section 12(b) or section 12(g) of the 
Securities Exchange Act of 1934 (the 1934 Act) (15 U.S.C. 78l (b) and 
(g)) shall comply with the rules, regulations and forms adopted by the 
Securities and Exchange Commission (Commission) pursuant to sections 12, 
13, 14(a), 14(c), 14(d), 14(f) and 16 of the 1934 Act (15 U.S.C. 78l, 
78m, 78n(a), (c), (d), (f) and 78p). The term Commission as used in 
those rules and regulations shall with respect to securities issued by 
State member banks be deemed to refer to the Board unless the context 
otherwise requires.
    (b) Elections permitted of State member banks with total assets of 
$150 million or less. (1) Notwithstanding paragraph (a) of this section 
or the rules and regulations promulgated by the Commission pursuant to 
the 1934 Act, a State member bank that has total assets of $150 million 
or less as of the end of its most recent fiscal year and no foreign 
offices may elect to substitute for the financial statements required by 
the Commission's Form 10-Q the balance sheet and income statement from 
the quarterly report of condition required to be filed by such bank with 
the Board under section 9 of the Federal Reserve Act (12 U.S.C. 324) 
(Federal Financial Institutions Examination Council Form 033 or 034).
    (2) A State member bank may not elect to file financial statements 
from its quarterly report of condition pursuant to paragraph (b)(1) of 
this section if the amounts reported for net income, total assets or 
total equity capital in those statements, which are prepared on the 
basis of Federal bank regulatory reporting standards, would differ 
materially from such amounts reported in financial statements prepared 
in accordance with generally accepted accounting principles (GAAP).
    (3) A State member bank qualifying for and electing to file 
financial statements from its quarterly report of condition pursuant to 
paragraph (b)(1) of this section in its form 10-Q shall include earnings 
per share or net loss per share data prepared in accordance with GAAP 
and disclose any material contingencies as required by Article 10 of the 
Commission's Regulation S-X (15 CFR 210.10-01), in the Management's 
Discussion and Analysis of Financial Condition and Results of Operations 
section of Form 10-Q.
    (c) Filing instructions, inspection of documents, and nondisclosure 
of certain information filed. (1) All papers required to be filed with 
the Board pursuant to the 1934 Act or regulations thereunder shall be 
submitted to the Division of Banking Supervision and Regulation, Board 
of Governors of the Federal Reserve System, 20th Street and Constitution 
Avenue, NW., Washington, DC 20551. Material may be filed by delivery to 
the Board, through the mails, or otherwise. The date on which papers

[[Page 194]]

are actually received by the Board shall be the date of filing thereof 
if all of the requirements with respect to the filing have been complied 
with.
    (2) No filing fees specified by the Commission's rules shall be paid 
to the Board.
    (3) Copies of the registration statement, definitive proxy 
solicitation materials, reports and annual reports to shareholders 
required by this section (exclusive of exhibits) will be available for 
public inspection at the Board's offices in Washington, DC, as well as 
at the Federal Reserve Banks of New York, Chicago, and San Francisco and 
at the Reserve Bank in the district in which the reporting bank is 
located.
    (4) Any person filing any statement, report, or document under the 
1934 Act may make written objection to the public disclosure of any 
information contained therein in accordance with the procedure set forth 
below:
    (i) The person shall omit from the statement, report, or document, 
when it is filed, the portion thereof that the person desires to keep 
undisclosed (hereinafter called the confidential portion). The person 
shall indicate at the appropriate place in the statement, report, or 
document that the confidential portion has been so omitted and filed 
separately with the Board.
    (ii) The person shall file with the copies of the statement, report, 
or document filed with the Board:
    (A) As many copies of the confidential portion, each clearly marked 
``CONFIDENTIAL TREATMENT'', as there are copies of the statement, 
report, or document filed with the Board. Each copy of the confidential 
portion shall contain the complete text of the item and, notwithstanding 
that the confidential portion does not constitute the whole of the 
answer, the entire answer thereto; except that in case the confidential 
portion is part of a financial statement or schedule, only the 
particular financial statement or schedule need be included. All copies 
of the confidential portion shall be in the same form as the remainder 
of the statement, report, or document; and
    (B) An application making objection to the disclosure of the 
confidential portion. Such application shall be on a sheet or sheets 
separate from the confidential portion, and shall (1) identify the 
portion of the statement, report, or document that has been omitted, (2) 
include a statement of the grounds of objection, and (3) include the 
name of each exchange, if any, with which the statement, report, or 
document is filed. The copies of the confidential portion and the 
application filed in accordance with this paragraph shall be enclosed in 
a separate envelope marked ``CONFIDENTIAL TREATMENT'' and addressed to 
Secretary, Board of Governors of the Federal Reserve System, Washington, 
DC 20551.
    (iii) Pending the determination by the Board on the objection filed 
in accordance with this paragraph, the confidential portion will not be 
disclosed by the Board.
    (iv) If the Board determines that the objection shall be sustained, 
a notation to that effect will be made at the appropriate place in the 
statement, report, or document.
    (v) If the Board determines that the objection shall not be 
sustained because disclosure of the confidential portion is in the 
public interest, a finding and determination to that effect will be 
entered and notice of the finding and determination will be sent by 
registered or certified mail to the person.
    (vi) If the Board determines that the objection shall not be 
sustained pursuant to paragraph (c)(4)(v) of this section, the 
confidential portion shall be made available to the public:
    (A) 15 days after notice of the Board's determination not to sustain 
the objection has been given as required by paragraph (c)(4)(v) of this 
section, provided that the person filing the objection has not 
previously filed with the Board a written statement that he intends in 
good faith to seek judicial review of the finding and determination;
    (B) 60 days after notice of the Board's determination not to sustain 
the objection has been given as required by paragraph (c)(4)(v) of this 
section and the person filing the objection has filed with the Board a 
written statement that he intends to seek judicial review of the finding 
and determination but has failed to file a petition for judicial review 
of the Board's determination; or

[[Page 195]]

    (C) Upon final judicial determination, if adverse to the party 
filing the objection.
    (vii) If the confidential portion is made available to the public, a 
copy thereof shall be attached to each copy of the statement, report, or 
document filed with the Board.
[Reg. H, 52 FR 49376, Dec. 31, 1987]



Sec. 208.17  Disclosure of financial information by state member banks.

    (a) Purpose and scope. The purpose of this section is to facilitate 
the dissemination of publicly available information regarding the 
financial condition of state member banks, state licensed agencies of 
foreign banks, and state licensed branches of foreign banks that are not 
insured by the Federal Deposit Insurance Corporation. This section 
requires all state-chartered banks that are members of the Federal 
Reserve System and all other covered institutions:
    (1) To make year-end Call Reports or Reports of Assets and 
Liabilities of U.S. Branches and Agencies of Foreign Banks or, in the 
case of state member banks, other alternative financial information, 
available to shareholders, customers, and the general public upon 
request; and
    (2) To advise shareholders and the public of the availability of 
this information.
    (b) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Call Report means the Consolidated Reports of Condition and 
Income (OMB No. 7100-0036) filed pursuant to 12 U.S.C. 324 and 
Sec. 208.10 of this regulation (12 CFR 208.10).
    (2) State member bank means a bank that is chartered by a State and 
is a member of the Federal Reserve System.
    (3) Other covered institutions means state licensed agencies of 
foreign banks, or state licensed branches of foreign banks that are not 
insured by the Federal Deposit Insurance Corporation.
    (c) Availability of financial information--(1) Shareholders. Each 
state member bank shall advise its shareholders, by a written 
announcement, which may be included in the notice of the annual 
shareholders' meeting, that one copy of certain financial information is 
available free of charge upon request. The announcement shall include, 
at a minimum, an address or telephone number to which requests may be 
directed.
    (2) General public. State member banks and other covered 
institutions shall use reasonable means at their disposal to advise the 
public of the availability of information pursuant to this section. 
Bankers' banks, as defined by the Federal Reserve Act, as amended by the 
Monetary Control Act of 1980 (title I of Pub. L. 96-221), and 12 CFR 
204.121, are exempt from this requirement. The notification to the 
public shall state that one copy of the information is available free of 
charge upon request and state an address or telephone number to which 
requests may be directed.
    (d) Financial information to be provided by state member banks. The 
bank shall have discretion to determine which type of information, 
identified in this subsection, to release. The bank shall make the 
information it chooses to release available as soon as is reasonably 
possible but not later than April 1 of the year immediately following 
the end of the year to which the most recently available information 
pertains. State member banks shall fulfill the requirements of this 
section by providing, upon request, at least one free copy to each 
requestor of the following information:
    (1) Copies of their entire Call Report for the most recent year end 
and the prior year end, excluding any information for which confidential 
treatment is permitted pursuant to the Call Report instructions; or
    (2) Copies of only the following schedules from their Call Reports 
for the most recent year end and the prior year end, excluding any 
information for which confidential treatment is permitted pursuant to 
the Call Report instructions:
    (i) Schedule RC (Balance Sheet);
    (ii) Schedule RC-N (Past Due and Nonaccrual Loans and Leases);
    (iii) Schedule RI (Income Statement);
    (iv) Schedule RI-A (Changes in Equity Capital); and

[[Page 196]]

    (v) Schedule RI-B (Charge-offs and Recoveries and Changes in 
Allowance for Loan and Lease Losses)--Part I may be omitted; or
    (3) In the case of a bank required to file statements and reports 
pursuant to the Board's Regulation H, a copy of the bank's annual report 
to shareholders for meetings at which directors are to be elected or the 
bank's annual report; or
    (4) In the case of a bank with independently audited financial 
statements, copies of the audited financial statements and the 
certificate or report of the independent accountant if such statements 
contain information for the two most recent year ends comparable to that 
specified in paragraph (d)(2) of this section; or
    (5) In the case of a bank that is the only bank subsidiary of a bank 
holding company, that is majority owned by that bank holding company, 
and that has assets equal to 95 percent or more of the bank holding 
company's consolidated total assets, a copy of either:
    (i) The annual report of the bank holding company prepared in 
conformity with the regulations of the Securities and Exchange 
Commission; or
    (ii) If the holding company has consolidated assets of $150 million 
or more, the sections in the bank holding company's consolidated 
financial statements for the most recent year end and the prior year end 
on Form FR-Y-9C (``Consolidated Financial Statements for Bank Holding 
Companies With Total Consolidated Assets of $150 Million or More, or 
With More Than One Subsidiary Bank'' (OMB control number 7100-0128)) 
prepared pursuant to the Board's Regulation Y, and comparable to the 
Call Report schedules enumerated in paragraph (d)(2) of this section.
    (e) Financial information to be provided by other covered 
institutions. Other covered institutions shall fulfill the requirements 
of this section by providing, upon request, at least one free copy to 
each requestor of the following schedules from the Report of Assets and 
Liabilities of U.S. Branches and Agencies of Foreign Banks (OMB control 
number 7100-0032) for the most recent year end and the prior year end:
    (1) Schedule RAL (Assets and Liabilities);
    (2) Schedule E (Deposit Liabilities and Credit Balances);
    (3) Schedule P (Other Borrowed Money).

The institution shall make the information available as soon as is 
reasonably possible but not later than April 1 of the year immediately 
following the end of the year to which the most recently available 
information pertains.
    (f) Disclaimer. The following legend shall be included with any 
financial information provided pursuant to this section:

    This financial information has not been reviewed, or confirmed for 
accuracy or relevancy, by the Federal Reserve System.

    (g) This section is not intended to create a private right of action 
against any institution disclosing documents pursuant to this section.
[54 FR 6117, Feb. 8, 1989, as amended at Reg. H, 59 FR 55988, Nov. 10, 
1994]



Sec. 208.18  Appraisal standards for federally related transactions.

    The standards applicable to appraisals rendered in connection with 
federally related transactions entered into by state member banks are 
set forth in subpart G of the Board's Regulation Y, 12 CFR part 225.
[55 FR 27771, July 5, 1990]



Sec. 208.19  Payment of dividends.

    (a) Capital limitations on payment of dividends. No state member 
bank shall, during the time it continues its banking operations, 
withdraw, or permit to be withdrawn, either in the form of dividends or 
otherwise, any portion of its capital. If losses have at any time been 
sustained by a state member bank that equal or exceed its undivided 
profits then on hand, no dividend shall be paid. No dividend shall be 
paid by a state member bank while it continues its banking operations, 
to an amount greater than its net profits then on hand, deducting 
therefrom its losses and bad debts.
    (1) Exceptions. Exceptions to the limitations contained in this 
paragraph (a) may be made only with the prior approval of the Board and 
of at least two-thirds of the shares of each class of stock outstanding.

[[Page 197]]

    (2) Dividends on common and preferred stock. The provisions of this 
paragraph (a) shall apply to the payment of dividends on both common and 
preferred stock.
    (3) Bad debt. Under this paragraph (a), bad debts must be deducted 
from the net profits then on hand in computing funds available for the 
payment of dividends. The term bad debt includes matured obligations due 
a bank on which the interest is past due and unpaid for six months 
unless the debts are well secured and in the process of collection. 
Obligations include every type of indebtedness owed to the bank, 
including, for example, loans, investment securities, time deposits in 
other depository institutions, and leases. The six-month period of 
default may begin at any time, regardless of when the debt matures.
    (i) Matured debt. Whether a debt has matured for the purposes of 
this subsection usually will be determined by applicable contract law. 
Generally, a debt is matured when all or a part of the principal is due 
and payable as a result of demand, arrival of the stated maturity date, 
or acceleration by contract or by operation of law. Nevertheless, any 
demand debt on which the payment of interest is six months past due will 
be considered matured even though payment on the debt has not been 
demanded. Installment loans on which any payment is six months past due 
will be considered matured even though acceleration of the total debt 
may not have occurred.
    (ii) Well-secured debt. A debt is well secured if it is secured by 
collateral in the form of liens on, or pledges of, real or personal 
property, including securities, having realizable value sufficient to 
discharge the debt in full, or by the guaranty of a financially 
responsible party. If a loan that would otherwise be considered a bad 
debt is partially secured, that portion not properly secured will be 
considered a bad debt.
    (iii) Debt in process of collection. A debt is in the process of 
collection if collection of the debt is proceeding in due course, either 
through legal action, including judgment enforcement procedures, or, in 
appropriate circumstances, through collection efforts not involving 
legal action which are reasonably expected to result in repayment of the 
debt or in its restoration to current status. In any case, the bank 
should have a plan of collection setting forth the reasons for the 
selected method of collection, the responsibilities of the bank and the 
borrower, and the expected date of repayment of the debt or its 
restoration to current status.
    (iv) Debts of bankrupt or deceased debtors. A claim duly filed 
against the estate of a bankrupt or deceased debtor is considered as 
being in the process of collection. The obligation is well secured if it 
meets the criteria set forth in paragraph (a)(3)(ii) of this section or 
if the claim of the bank against the estate has been duly filed and the 
statutory period for filing has expired and the assets of the estate are 
adequate to discharge all obligations in full.
    (v) Documentation. The bank must maintain in its files documentation 
to support its evaluation of the obligation. In addition, the bank must 
retain, at a minimum, monthly progress reports on its collection 
efforts, noting and explaining any deviation from the collection plan.
    (4) Undivided profits then on hand. For the purpose of this section, 
the terms undivided profits then on hand and net profits then on hand 
shall have the same meaning, and shall be referred to herein as 
undivided profits then on hand.
    (i) Allowance for loan and lease losses. When calculating the amount 
of dividends a bank can pay under 12 U.S.C. 56 and this paragraph, the 
bank may not add the balance in its allowance for loan and lease losses 
to its undivided profits for the purpose of determining undivided 
profits then on hand. The terms allowance for loan and lease losses and 
undivided profits shall have the same meaning as set forth in the 
instructions for the Reports of Condition and Income.
    (ii) Bad debts. When deducting its bad debts from its undivided 
profits then on hand, a bank shall first subtract the sum of its bad 
debts from the balance of its allowance for loan and lease losses 
account. If the sum of a bank's bad debts is greater than its allowance 
for loan and lease losses, the excess bad debt shall then be deducted 
from the bank's undivided profits then on hand.

[[Page 198]]

    (iii) Surplus surplus. State member banks are required to comply 
with state law provisions concerning the maintenance of surplus funds in 
addition to common capital. To the extent a bank has capital surplus in 
excess of that required under applicable state law, the bank has surplus 
surplus. Only that portion of the surplus surplus that meets the 
following conditions may be transferred to the undivided profits account 
and be available for the payment of dividends:
    (A) The bank's board of directors approves the transfer of funds 
from capital surplus to undivided profits; and
    (B) The transfer has been approved by the Board. The bank must be 
able to demonstrate to the Board that the portion of the surplus surplus 
to be transferred came from the earnings of prior periods, excluding 
earnings transferred as a result of stock dividends. Requests for Board 
approval shall be submitted to the appropriate Federal Reserve Bank. The 
bank may consider the transfer to be approved if the Board or the 
Reserve Bank does not notify the bank within thirty days after the 
Reserve Bank's receipt of the notice that the transfer has been 
disapproved or that it is subject to continuing consideration.
    (b) Earnings limitations on payment of dividends. A state member 
bank may not pay a dividend if the total of all dividends declared by 
the bank in any calendar year exceeds the total of its net profits for 
that year combined with its retained net profits of the preceding two 
calendar years, less any required transfers to surplus or to a fund for 
the retirement of any preferred stock, unless the bank has received the 
prior approval of the Board for the dividend under paragraph (b)(3) of 
this section.
    (1) Dividends on common and preferred stock. The provisions of this 
paragraph (b) apply to the payment of dividends on both preferred and 
common stock.
    (2) Net profits. Net profits shall be equal to the net income or 
loss as reported by a state member bank in its Reports of Condition and 
Income. When computing its net profits under this section, a bank should 
not add its provisions for loan and lease losses to, nor deduct net 
charge offs from, its reported net income.
    (3) Retained net profits. Retained net profits of any period shall 
be equal to the net income or loss as reported in the Reports of 
Condition and Income less any common or preferred stock dividends 
declared or otherwise charged to the undivided profits of the period for 
which retained net profits are computed.
    (4) Approval of dividends. A bank must request and receive the 
approval of the Board before declaring a dividend if the amount of all 
dividends (common and preferred), including the proposed dividend, 
declared by the bank in any calendar year exceeds the total of the 
bank's net profits of that year to date combined with its retained net 
profits of the preceding two calendar years, less any required transfers 
to surplus or a fund for the retirement of any preferred stock. Requests 
for the Board's approval shall be submitted to the appropriate Federal 
Reserve Bank.
    (5) Effective date and transition provisions. (i) For the purpose of 
computing net profits pursuant to 12 U.S.C. 60, a state member bank must 
apply paragraph (b)(2) of this section no later than January 1, 1991. A 
bank may elect to use this paragraph (b)(2) of this section to calculate 
net profits for 1990, if it applies this provision on a full calendar 
year to date basis.
    (ii) Whether a bank chooses to use paragraph (b)(2) of this section 
beginning as of January 1, 1990 or 1991, it may elect to apply the 
paragraph (b)(2) of this section to recalculate retained net profits for 
one or both of the prior two years.
    (iii) Once a bank has elected to calculate net profits or retained 
net profits for a particular year applying the provisions of paragraph 
(b)(2) of this section, retained net profits and net profits for all 
subsequent periods in the calculation must also be calculated using 
paragraph (b)(2) of this section. If a state member bank has elected to 
use paragraph (b)(2) of this section for a particular year, the bank may 
not change the method of calculation used for that year during 
subsequent periods.
[55 FR 52986, Dec. 26, 1990]

[[Page 199]]



Sec. 208.20  Suspicious Activity Reports.

    (a) Purpose. This section ensures that a state member bank files a 
Suspicious Activity Report when it detects a known or suspected 
violation of Federal law, or a suspicious transaction related to a money 
laundering activity or a violation of the Bank Secrecy Act. This section 
applies to all state member banks.
    (b) Definitions. For the purposes of this section:
    (1) FinCEN means the Financial Crimes Enforcement Network of the 
Department of the Treasury.
    (2) Institution-affiliated party means any institution-affiliated 
party as that term is defined in 12 U.S.C. 1786(r), or 1813(u) and 
1818(b) (3), (4) or (5).
    (3) SAR means a Suspicious Activity Report on the form prescribed by 
the Board.
    (c) SARs required. A state member bank shall file a SAR with the 
appropriate Federal law enforcement agencies and the Department of the 
Treasury in accordance with the form's instructions by sending a 
completed SAR to FinCEN in the following circumstances:
    (1) Insider abuse involving any amount. Whenever the state member 
bank detects any known or suspected Federal criminal violation, or 
pattern of criminal violations, committed or attempted against the bank 
or involving a transaction or transactions conducted through the bank, 
where the bank believes that it was either an actual or potential victim 
of a criminal violation, or series of criminal violations, or that the 
bank was used to facilitate a criminal transaction, and the bank has a 
substantial basis for identifying one of its directors, officers, 
employees, agents or other institution-affiliated parties as having 
committed or aided in the commission of a criminal act regardless of the 
amount involved in the violation.
    (2) Violations aggregating $5,000 or more where a suspect can be 
identified. Whenever the state member bank detects any known or 
suspected Federal criminal violation, or pattern of criminal violations, 
committed or attempted against the bank or involving a transaction or 
transactions conducted through the bank and involving or aggregating 
$5,000 or more in funds or other assets, where the bank believes that it 
was either an actual or potential victim of a criminal violation, or 
series of criminal violations, or that the bank was used to facilitate a 
criminal transaction, and the bank has a substantial basis for 
identifying a possible suspect or group of suspects. If it is determined 
prior to filing this report that the identified suspect or group of 
suspects has used an ``alias,'' then information regarding the true 
identity of the suspect or group of suspects, as well as alias 
identifiers, such as drivers' license or social security numbers, 
addresses and telephone numbers, must be reported.
    (3) Violations aggregating $25,000 or more regardless of a potential 
suspect. Whenever the state member bank detects any known or suspected 
Federal criminal violation, or pattern of criminal violations, committed 
or attempted against the bank or involving a transaction or transactions 
conducted through the bank and involving or aggregating $25,000 or more 
in funds or other assets, where the bank believes that it was either an 
actual or potential victim of a criminal violation, or series of 
criminal violations, or that the bank was used to facilitate a criminal 
transaction, even though there is no substantial basis for identifying a 
possible suspect or group of suspects.
    (4) Transactions aggregating $5,000 or more that involve potential 
money laundering or violations of the Bank Secrecy Act. Any transaction 
(which for purposes of this paragraph (c)(4) means a deposit, 
withdrawal, transfer between accounts, exchange of currency, loan, 
extension of credit, purchase or sale of any stock, bond, certificate of 
deposit, or other monetary instrument or investment security, or any 
other payment, transfer, or delivery by, through, or to a financial 
institution, by whatever means effected) conducted or attempted by, at 
or through the state member bank and involving or aggregating $5,000 or 
more in funds or other assets, if the bank knows, suspects, or has 
reason to suspect that:
    (i) The transaction involves funds derived from illegal activities 
or is intended or conducted in order to hide or

[[Page 200]]

disguise funds or assets derived from illegal activities (including, 
without limitation, the ownership, nature, source, location, or control 
of such funds or assets) as part of a plan to violate or evade any law 
or regulation or to avoid any transaction reporting requirement under 
federal law;
    (ii) The transaction is designed to evade any regulations 
promulgated under the Bank Secrecy Act; or
    (iii) The transaction has no business or apparent lawful purpose or 
is not the sort in which the particular customer would normally be 
expected to engage, and the bank knows of no reasonable explanation for 
the transaction after examining the available facts, including the 
background and possible purpose of the transaction.
    (d) Time for reporting. A state member bank is required to file a 
SAR no later than 30 calendar days after the date of initial detection 
of facts that may constitute a basis for filing a SAR. If no suspect was 
identified on the date of detection of the incident requiring the 
filing, a state member bank may delay filing a SAR for an additional 30 
calendar days to identify a suspect. In no case shall reporting be 
delayed more than 60 calendar days after the date of initial detection 
of a reportable transaction. In situations involving violations 
requiring immediate attention, such as when a reportable violation is 
on-going, the financial institution shall immediately notify, by 
telephone, an appropriate law enforcement authority and the Board in 
addition to filing a timely SAR.
    (e) Reports to state and local authorities. State member banks are 
encouraged to file a copy of the SAR with state and local law 
enforcement agencies where appropriate.
    (f) Exceptions. (1) A state member bank need not file a SAR for a 
robbery or burglary committed or attempted that is reported to 
appropriate law enforcement authorities.
    (2) A state member bank need not file a SAR for lost, missing, 
counterfeit, or stolen securities if it files a report pursuant to the 
reporting requirements of 17 CFR 240.17f-1.
    (g) Retention of records. A state member bank shall maintain a copy 
of any SAR filed and the original or business record equivalent of any 
supporting documentation for a period of five years from the date of the 
filing of the SAR. Supporting documentation shall be identified and 
maintained by the bank as such, and shall be deemed to have been filed 
with the SAR. A state member bank must make all supporting documentation 
available to appropriate law enforcement agencies upon request.
    (h) Notification to board of directors. The management of a state 
member bank shall promptly notify its board of directors, or a committee 
thereof, of any report filed pursuant to this section.
    (i) Compliance. Failure to file a SAR in accordance with this 
section and the instructions may subject the state member bank, its 
directors, officers, employees, agents, or other institution-affiliated 
parties to supervisory action.
    (j) Confidentiality of SARs. SARs are confidential. Any state member 
bank subpoenaed or otherwise requested to disclose a SAR or the 
information contained in a SAR shall decline to produce the SAR or to 
provide any information that would disclose that a SAR has been prepared 
or filed citing this section, applicable law (e.g., 31 U.S.C. 5318(g)), 
or both, and notify the Board.
    (k) Safe harbor. The safe harbor provisions of 31 U.S.C. 5318(g), 
which exempts any state member bank that makes a disclosure of any 
possible violation of law or regulation from liability under any law or 
regulation of the United States, or any constitution, law or regulation 
of any state or political subdivision, covers all reports of suspected 
or known criminal violations and suspicious activities to law 
enforcement and financial institution supervisory authorities, including 
supporting documentation, regardless of whether such reports are filed 
pursuant to this section or are filed on a voluntary basis.
[Reg. H, 61 FR 4343, Feb. 5, 1996]



Sec. 208.21  Community development and public welfare investments.

    (a) Definitions--(1) Low- or moderate-income area means:

[[Page 201]]

    (i) One or more census tracts in a Metropolitan Statistical Area 
where the median family income adjusted for family size in each census 
tract is less than eighty percent of the median family income adjusted 
for family size of the Metropolitan Statistical Area; or
    (ii) If not in a Metropolitan Statistical Area, one or more census 
tracts or block-numbered areas where the median family income adjusted 
for family size in each census tract or block-numbered area is less than 
eighty percent of the median family income adjusted for family size of 
the State.
    (2) Low- and moderate-income persons has the same meaning as low- 
and moderate-income persons as defined in 42 U.S.C. 5302(a)(20)(A).
    (3) Small business means a business that meets the size eligibility 
standards of 13 CFR 121.802(a)(2).
    (b) Investments that do not require prior Board approval. 
Notwithstanding the provisions of section 5136 of the Revised Statutes 
(12 U.S.C. 24 (Seventh)) made applicable to State member banks by 
paragraph 20 of section 9 of the Federal Reserve Act (12 U.S.C. 335), a 
State member bank may make an investment, without prior Board approval, 
if the following conditions are met:
    (1) The investment is in a corporation, limited partnership, or 
other entity:
    (i) Where the Board has determined that an investment in that entity 
or class of entities is a public welfare investment under paragraph 23 
of section 9 of the Federal Reserve Act (12 U.S.C. 338a), or a community 
development investment under Regulation Y (12 CFR 225.25(b)(6));
    (ii) Where the Comptroller of the Currency has determined, by order 
or regulation, that an investment in that entity by a national bank is a 
public welfare investment under section 5136 of the Revised Statutes (12 
U.S.C. 24 (Eleventh));
    (iii) Where that entity is a community development financial 
institution as defined in section 103(5) of the Community Development 
Banking and Financial Institutions Act of 1994 (12 U.S.C. 4702(5)); or
    (iv) Where that entity, directly or indirectly, engages solely in or 
makes loans solely for the purposes of one or more of the following 
community development activities:
    (A) Investing in, developing, rehabilitating, managing, selling, or 
renting 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));
    (B) Investing in, developing, rehabilitating, managing, selling, or 
renting nonresidential real property or other assets located in a low- 
or moderate-income area and targeted towards low- and moderate-income 
persons;
    (C) Investing in one or more small businesses located in a low- or 
moderate-income area to stimulate economic development;
    (D) Investing in, developing, or otherwise assisting job training or 
placement facilities or programs that will be targeted towards low- and 
moderate-income persons;
    (E) Investing in 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
    (F) Providing 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;
    (2) The investment is permitted by State law;
    (3) The investment will not expose the State member bank to 
liability beyond the amount of the investment;
    (4) The investment does not exceed the sum of two percent of the 
State member bank's capital stock and surplus as defined under 12 CFR 
250.162;
    (5) The aggregate of all such investments of the State member bank 
does not exceed the sum of five percent of its capital stock and surplus 
as defined under 12 CFR 250.162;
    (6) The State member bank is well capitalized or adequately 
capitalized under Secs. 208.33(b) (1) and (2);

[[Page 202]]

    (7) The State member bank received a composite CAMEL rating of ``1'' 
or ``2'' under the Uniform Financial Institutions Rating System as of 
its most recent examination and an overall rating of at least 
``satisfactory'' as of its most recent consumer compliance examination; 
and
    (8) The State member bank is not subject to any written agreement, 
cease and desist order, capital directive, prompt corrective action 
directive, or memorandum of understanding issued by the Board or a 
Federal Reserve Bank.
    (c) Notice. Not more than 30 days after making an investment under 
paragraph (b) of this section, the State member bank shall advise its 
Federal Reserve Bank of the investment, including the amount of the 
investment and the identity of the entity in which the investment is 
made.
    (d) Investments requiring Board approval. (1) With prior Board 
approval, a State member bank may make public welfare investments under 
paragraph 23 of section 9 of the Federal Reserve Act (12 U.S.C. 338a), 
other than those specified in paragraph (b) of this section.
    (2) Requests for approval under this paragraph should include, at a 
minimum, the amount of the proposed investment, a description of the 
entity in which the investment is to be made, an explanation of why the 
investment is a public welfare investment under paragraph 23 of section 
9 of the Federal Reserve Act (12 U.S.C. 338a), a description of the 
State member bank's potential liability under the proposed investment, 
the amount of the State member bank's aggregate outstanding public 
welfare investments under paragraph 23 of section 9 of the Federal 
Reserve Act, and the amount of the State member bank's capital stock and 
surplus as defined in 12 CFR 250.162.
    (3) The Board will act on a request under this paragraph within 60 
calendar days after receipt of a request that meets the requirements of 
paragraph (d)(2) of this section, unless the Board notifies the 
requesting State member bank that a longer time period will be required.
    (e) Divestiture of investments. A State member bank shall divest 
itself of an investment made under paragraph (b), (d) or (f) of this 
section to the extent that the investment exceeds the scope of, or 
ceases to meet, the requirements of paragraphs (b)(1) through (b)(5), or 
paragraph (d) of this section. The divestiture shall be made in the 
manner specified in 12 CFR 225.140, Regulation Y, for interests acquired 
by a lending subsidiary of a bank holding company or the bank holding 
company itself in satisfaction of a debt previously contracted.
    (f) Preexisting investments. (1) For ongoing investments made prior 
to January 9, 1995 that are covered by paragraph (b) of this section, a 
State member bank shall notify its Federal Reserve Bank of the 
investment not more than sixty days after January 9, 1995.
    (2) For other ongoing investments made prior to January 9, 1995, a 
State member bank shall request Board approval not more than one year 
after January 9, 1995.
[Reg. H, 59 FR 63711, Dec. 9, 1994]



Sec. 208.22  Investment in bank premises.

    (a) Under Section 24A of the Federal Reserve Act, state member bank 
investments in bank premises or in the stock, bonds, debentures, or 
other such obligations of any corporation holding the premises of the 
bank, and loans on the security of the stock of such corporation, do not 
require the approval of the Board if the aggregate of all such 
investments and loans, together with the indebtedness incurred by any 
such corporation that is an affiliate of the bank (as defined in section 
2 of the Banking Act of 1933, as amended, 12 U.S.C. 221a):
    (1) Does not exceed the capital stock account of the bank; or
    (2) Does not exceed 50 percent of the bank's Tier 1 capital and the 
bank:
    (i) Is well capitalized as defined in Sec. 208.33(b)(1) of this 
part;
    (ii) Received a composite CAMEL rating of ``1'' or ``2'' as of its 
most recent examination by the relevant Federal Reserve Bank or state 
regulatory authority; and

[[Page 203]]

    (iii) Is not subject to any written agreement, cease and desist 
order, capital directive, or prompt corrective action directive issued 
by the Board or a Federal Reserve Bank.
[Reg. H, 59 FR 28761, June 3, 1994]



Sec. 208.23  Loans in areas having special flood hazards.

    (a) Purpose and scope--(1) Purpose. The purpose of this section is 
to implement the requirements of the National Flood Insurance Act of 
1968 and the Flood Disaster Protection Act of 1973, as amended (42 
U.S.C. 4001-4129).
    (2) Scope. This section, except for paragraphs (f) and (h) of this 
section, applies to loans secured by buildings or mobile homes located 
or to be located in areas determined by the Director of the Federal 
Emergency Management Agency to have special flood hazards. Paragraphs 
(f) and (h) of this section apply to loans secured by buildings or 
mobile homes, regardless of location.
    (b) Definitions. (1) Act means the National Flood Insurance Act of 
1968, as amended (42 U.S.C. 4001-4129).
    (2) Building means a walled and roofed structure, other than a gas 
or liquid storage tank, that is principally above ground and affixed to 
a permanent site, and a walled and roofed structure while in the course 
of construction, alteration, or repair.
    (3) Community means a State or a political subdivision of a State 
that has zoning and building code jurisdiction over a particular area 
having special flood hazards.
    (4) Designated loan means a loan secured by a building or mobile 
home that is located or to be located in a special flood hazard area in 
which flood insurance is available under the Act.
    (5) Director of FEMA means the Director of the Federal Emergency 
Management Agency.
    (6) Mobile home means a structure, transportable in one or more 
sections, that is built on a permanent chassis and designed for use with 
or without a permanent foundation when attached to the required 
utilities. The term mobile home does not include a recreational vehicle. 
For purposes of this section, the term mobile home means a mobile home 
on a permanent foundation. The term mobile home includes a manufactured 
home as that term is used in the NFIP.
    (7) NFIP means the National Flood Insurance Program authorized under 
the Act.
    (8) Residential improved real estate means real estate upon which a 
home or other residential building is located or to be located.
    (9) Servicer means the person responsible for:
    (i) Receiving any scheduled, periodic payments from a borrower under 
the terms of a loan, including amounts for taxes, insurance premiums, 
and other charges with respect to the property securing the loan; and
    (ii) Making payments of principal and interest and any other 
payments from the amounts received from the borrower as may be required 
under the terms of the loan.
    (10) Special flood hazard area means the land in the flood plain 
within a community having at least a one percent chance of flooding in 
any given year, as designated by the Director of FEMA.
    (11) Table funding means a settlement at which a loan is funded by a 
contemporaneous advance of loan funds and an assignment of the loan to 
the person advancing the funds.
    (c) Requirement to purchase flood insurance where available--(1) In 
general. A state member bank shall not make, increase, extend, or renew 
any designated loan unless the building or mobile home and any personal 
property securing the loan is covered by flood insurance for the term of 
the loan. The amount of insurance must be at least equal to the lesser 
of the outstanding principal balance of the designated loan or the 
maximum limit of coverage available for the particular type of property 
under the Act. Flood insurance coverage under the Act is limited to the 
overall value of the property securing the designated loan minus the 
value of the land on which the property is located.
    (2) Table funded loans. A state member bank that acquires a loan 
from a mortgage broker or other entity through table funding shall be 
considered to be making a loan for the purposes of this section.

[[Page 204]]

    (d) Exemptions. The flood insurance requirement prescribed by 
paragraph (c) of this section does not apply with respect to:
    (1) Any State-owned property covered under a policy of self-
insurance satisfactory to the Director of FEMA, who publishes and 
periodically revises the list of States falling within this exemption; 
or
    (2) Property securing any loan with an original principal balance of 
$5,000 or less and a repayment term of one year or less.
    (e) Escrow requirement. If a state member bank requires the escrow 
of taxes, insurance premiums, fees, or any other charges for a loan 
secured by residential improved real estate or a mobile home that is 
made, increased, extended, or renewed on or after October 1, 1996, the 
state member bank shall also require the escrow of all premiums and fees 
for any flood insurance required under paragraph (c) of this section. 
The state member bank, or a servicer acting on its behalf, shall deposit 
the flood insurance premiums on behalf of the borrower in an escrow 
account. This escrow account will be subject to escrow requirements 
adopted pursuant to section 10 of the Real Estate Settlement Procedures 
Act of 1974 (12 U.S.C. 2609) (RESPA), which generally limits the amount 
that may be maintained in escrow accounts for certain types of loans and 
requires escrow account statements for those accounts, only if the loan 
is otherwise subject to RESPA. Following receipt of a notice from the 
Director of FEMA or other provider of flood insurance that premiums are 
due, the state member bank, or a servicer acting on its behalf, shall 
pay the amount owed to the insurance provider from the escrow account by 
the date when such premiums are due.
    (f) Required use of standard flood hazard determination form--(1) 
Use of form. A state member bank shall use the standard flood hazard 
determination form developed by the Director of FEMA (as set forth in 
Appendix A of 44 CFR part 65) when determining whether the building or 
mobile home offered as collateral security for a loan is or will be 
located in a special flood hazard area in which flood insurance is 
available under the Act. The standard flood hazard determination form 
may be used in a printed, computerized, or electronic manner.
    (2) Retention of form. A state member bank shall retain a copy of 
the completed standard flood hazard determination form, in either hard 
copy or electronic form, for the period of time the bank owns the loan.
    (g) Forced placement of flood insurance. If a state member bank, or 
a servicer acting on behalf of the bank, determines at any time during 
the term of a designated loan that the building or mobile home and any 
personal property securing the designated loan is not covered by flood 
insurance or is covered by flood insurance in an amount less than the 
amount required under paragraph (c) of this section, then the bank or 
its servicer shall notify the borrower that the borrower should obtain 
flood insurance, at the borrower's expense, in an amount at least equal 
to the amount required under paragraph (c) of this section, for the 
remaining term of the loan. If the borrower fails to obtain flood 
insurance within 45 days after notification, then the state member bank 
or its servicer shall purchase insurance on the borrower's behalf. The 
state member bank or its servicer may charge the borrower for the cost 
of premiums and fees incurred in purchasing the insurance.
    (h) Determination fees--(1) General. Notwithstanding any Federal or 
State law other than the Flood Disaster Protection Act of 1973, as 
amended (42 U.S.C. 4001-4129), any state member bank, or a servicer 
acting on behalf of the bank, may charge a reasonable fee for 
determining whether the building or mobile home securing the loan is 
located or will be located in a special flood hazard area. A 
determination fee may also include, but is not limited to, a fee for 
life-of-loan monitoring.
    (2) Borrower fee. The determination fee authorized by paragraph 
(h)(1) of this section may be charged to the borrower if the 
determination:
    (i) Is made in connection with a making, increasing, extending, or 
renewing of the loan that is initiated by the borrower;

[[Page 205]]

    (ii) Reflects the Director of FEMA's revision or updating of 
floodplain areas or flood-risk zones;
    (iii) Reflects the Director of FEMA's publication of a notice or 
compendium that:
    (A) Affects the area in which the building or mobile home securing 
the loan is located; or
    (B) By determination of the Director of FEMA, may reasonably require 
a determination whether the building or mobile home securing the loan is 
located in a special flood hazard area; or
    (iv) Results in the purchase of flood insurance coverage by the 
lender or its servicer on behalf of the borrower under paragraph (g) of 
this section.
    (3) Purchaser or transferee fee. The determination fee authorized by 
paragraph (h)(1) of this section may be charged to the purchaser or 
transferee of a loan in the case of the sale or transfer of the loan.
    (i) Notice of special flood hazards and availability of Federal 
disaster relief assistance--(1) Notice requirement. When a state member 
bank makes, increases, extends, or renews a loan secured by a building 
or a mobile home located or to be located in a special flood hazard 
area, the bank shall mail or deliver a written notice to the borrower 
and to the servicer in all cases whether or not flood insurance is 
available under the Act for the collateral securing the loan.
    (2) Contents of notice. The written notice must include the 
following information:
    (i) A warning, in a form approved by the Director of FEMA, that the 
building or the mobile home is or will be located in a special flood 
hazard area;
    (ii) A description of the flood insurance purchase requirements set 
forth in section 102(b) of the Flood Disaster Protection Act of 1973, as 
amended (42 U.S.C. 4012a(b));
    (iii) A statement, where applicable, that flood insurance coverage 
is available under the NFIP and may also be available from private 
insurers; and
    (iv) A statement whether Federal disaster relief assistance may be 
available in the event of damage to the building or mobile home caused 
by flooding in a Federally declared disaster.
    (3) Timing of notice. The state member bank shall provide the notice 
required by paragraph (i)(1) of this section to the borrower within a 
reasonable time before the completion of the transaction, and to the 
servicer as promptly as practicable after the bank provides notice to 
the borrower and in any event no later than the time the bank provides 
other similar notices to the servicer concerning hazard insurance and 
taxes. Notice to the servicer may be made electronically or may take the 
form of a copy of the notice to the borrower.
    (4) Record of receipt. The state member bank shall retain a record 
of the receipt of the notices by the borrower and the servicer for the 
period of time the bank owns the loan.
    (5) Alternate method of notice. Instead of providing the notice to 
the borrower required by paragraph (i)(1) of this section, a state 
member bank may obtain satisfactory written assurance from a seller or 
lessor that, within a reasonable time before the completion of the sale 
or lease transaction, the seller or lessor has provided such notice to 
the purchaser or lessee. The state member bank shall retain a record of 
the written assurance from the seller or lessor for the period of time 
the bank owns the loan.
    (6) Use of prescribed form of notice. A state member bank will be 
considered to be in compliance with the requirement for notice to the 
borrower of this paragraph (i) by providing written notice to the 
borrower containing the language presented in appendix A to this section 
within a reasonable time before the completion of the transaction. The 
notice presented in appendix A to this section satisfies the borrower 
notice requirements of the Act.
    (j) Notice of servicer's identity--(1) Notice requirement. When a 
state member bank makes, increases, extends, renews, sells, or transfers 
a loan secured by a building or mobile home located or to be located in 
a special flood hazard area, the bank shall notify the Director of FEMA 
(or the Director's designee) in writing of the identity of the servicer 
of the loan. The Director of FEMA has designated the insurance provider 
to receive the state member bank's notice of the servicer's identity.

[[Page 206]]

This notice may be provided electronically if electronic transmission is 
satisfactory to the Director of FEMA's designee. (2) Transfer of 
servicing rights. The state member bank shall notify the Director of 
FEMA (or the Director's designee) of any change in the servicer of a 
loan described in paragraph (j)(1) of this section within 60 days after 
the effective date of the change. This notice may be provided 
electronically if electronic transmission is satisfactory to the 
Director of FEMA's designee. Upon any change in the servicing of a loan 
described in paragraph (j)(1) of this section, the duty to provide 
notice under this paragraph (j)(2) shall transfer to the transferee 
servicer.

   Appendix A to Sec. 208.23--Sample Form of Notice of Special Flood 
     Hazards and Availability of Federal Disaster Relief Assistance

    We are giving you this notice to inform you that:
    The building or mobile home securing the loan for which you have 
applied is or will be located in an area with special flood hazards.
    The area has been identified by the Director of the Federal 
Emergency Management Agency (FEMA) as a special flood hazard area using 
FEMA's Flood Insurance Rate Map or the Flood Hazard Boundary Map for the 
following community: ________________. This area has at least a one 
percent (1%) chance of a flood equal to or exceeding the base flood 
elevation (a 100-year flood) in any given year. During the life of a 30-
year mortgage loan, the risk of a 100-year flood in a special flood 
hazard area is 26 percent (26%).
    Federal law allows a lender and borrower jointly to request the 
Director of FEMA to review the determination of whether the property 
securing the loan is located in a special flood hazard area. If you 
would like to make such a request, please contact us for further 
information.
    ______ The community in which the property securing the loan is 
located participates in the National Flood Insurance Program (NFIP). 
Federal law will not allow us to make you the loan that you have applied 
for if you do not purchase flood insurance. The flood insurance must be 
maintained for the life of the loan. If you fail to purchase or renew 
flood insurance on the property, Federal law authorizes and requires us 
to purchase the flood insurance for you at your expense.
     Flood insurance coverage under the NFIP may be purchased 
through an insurance agent who will obtain the policy either directly 
through the NFIP or through an insurance company that participates in 
the NFIP. Flood insurance also may be available from private insurers 
that do not participate in the NFIP.
     At a minimum, flood insurance purchased must cover the 
lesser of:
    (1) the outstanding principal balance of the loan; or
    (2) the maximum amount of coverage allowed for the type of property 
under the NFIP.
    Flood insurance coverage under the NFIP is limited to the overall 
value of the property securing the loan minus the value of the land on 
which the property is located.
     Federal disaster relief assistance (usually in the form of 
a low-interest loan) may be available for damages incurred in excess of 
your flood insurance if your community's participation in the NFIP is in 
accordance with NFIP requirements.
    ______ Flood insurance coverage under the NFIP is not available for 
the property securing the loan because the community in which the 
property is located does not participate in the NFIP. In addition, if 
the non-participating community has been identified for at least one 
year as containing a special flood hazard area, properties located in 
the community will not be eligible for Federal disaster relief 
assistance in the event of a Federally-declared flood disaster.

[Reg. H, 61 FR 45704, Aug. 29, 1996]



Sec. 208.24  Recordkeeping and confirmation of certain securities transactions effected by State member banks.

    (a) Exceptions and safe and sound operations.
    (1) A State member bank may be excepted from one or more of the 
requirements of this section if it meets one of the following conditions 
of paragraphs (a)(1)(i) through (a)(1)(iv) of this section:
    (i) De minimis transactions. The requirements of paragraphs (c)(2) 
through (c)(4) and paragraphs (e)(1) through (e)(3) of this section 
shall not apply to banks having an average of less than 200 securities 
transactions per year for customers over the prior three calendar year 
period, exclusive of transactions in government securities;
    (ii) Government securities. The recordkeeping requirements of 
paragraph (c) of this section shall not apply to banks effecting fewer 
than 500 government securities brokerage transactions per year; provided 
that this exception shall not apply to government securities

[[Page 207]]

transactions by a State member bank that has filed a written notice, or 
is required to file notice, with the Federal Reserve Board that it acts 
as a government securities broker or a government securities dealer;
    (iii) Municipal securities. The municipal securities activities of a 
State member bank that are subject to regulations promulgated by the 
Municipal Securities Rulemaking Board shall not be subject to the 
requirements of this section; and
    (iv) Foreign branches. The requirements of this section shall not 
apply to the activities of foreign branches of a State member bank.
    (2) Every State member bank qualifying for an exemption under 
paragraph (a)(1) of this section that conducts securities transactions 
for customers shall, to ensure safe and sound operations, maintain 
effective systems of records and controls regarding its customer 
securities transactions that clearly and accurately reflect appropriate 
information and provide an adequate basis for an audit of the 
information.
    (b) Definitions. For purposes of this section:
    (1) Asset-backed security shall mean a security that is serviced 
primarily by the cash flows of a discrete pool of receivables or other 
financial assets, either fixed or revolving, that by their terms convert 
into cash within a finite time period plus any rights or other assets 
designed to assure the servicing or timely distribution of proceeds to 
the security holders.
    (2) Collective investment fund shall mean funds held by a State 
member bank as fiduciary and, consistent with local law, invested 
collectively as follows:
    (i) In a common trust fund maintained by such bank exclusively for 
the collective investment and reinvestment of monies contributed thereto 
by the bank in its capacity as trustee, executor, administrator, 
guardian, or custodian under the Uniform Gifts to Minors Act; or
    (ii) In a fund consisting solely of assets of retirement, pension, 
profit sharing, stock bonus or similar trusts which are exempt from 
Federal income taxation under the Internal Revenue Code (26 U.S.C.).
    (3) Completion of the transaction effected by or through a state 
member bank shall mean:
    (i) For purchase transactions, the time when the customer pays the 
bank any part of the purchase price (or the time when the bank makes the 
book-entry for any part of the purchase price if applicable); however, 
if the customer pays for the security prior to the time payment is 
requested or becomes due, then the transaction shall be completed when 
the bank transfers the security into the account of the customer; and
    (ii) For sale transactions, the time when the bank transfers the 
security out of the account of the customer or, if the security is not 
in the bank's custody, then the time when the security is delivered to 
the bank; however, if the customer delivers the security to the bank 
prior to the time delivery is requested or becomes due then the 
transaction shall be completed when the banks makes payment into the 
account of the customer.
    (4) Crossing of buy and sell orders shall mean a security 
transaction in which the same bank acts as agent for both the buyer and 
the seller.
    (5) Customer shall mean any person or account, including any agency, 
trust, estate, guardianship, or other fiduciary account, for which a 
State member bank effects or participates in effecting the purchase or 
sale of securities, but shall not include a broker, dealer, bank acting 
as a broker or dealer, municipal securities broker or dealer, or issuer 
of the securities which are the subject of the transactions.
    (6) Debt security as used in paragraph (c) of this section shall 
mean any security, such as a bond, debenture, note or any other similar 
instrument which evidences a liability of the issuer (including any 
security of this type that is convertible into stock or similar 
security) and fractional or participation interests in one or more of 
any of the foregoing; provided, however, that securities issued by an 
investment company registered under the Investment Company Act of 1940, 
15 U.S.C. 80a-1 et seq.09, shall not be included in this definition.

[[Page 208]]

    (7) Government security shall mean:
    (i) A security that is a direct obligation of, or obligation 
guaranteed as to principal and interest by, the United States;
    (ii) A security that is issued or guaranteed by a corporation in 
which the United States has a direct or indirect interest and which is 
designated by the Secretary of the Treasury for exemption as necessary 
or appropriate in the public interest or for the protection of 
investors;
    (iii) A security issued or guaranteed as to principal and interest 
by any corporation whose securities are designated, by statute 
specifically naming the corporation, to constitute exempt securities 
within the meaning of the laws administered by the Securities and 
Exchange Commission; or
    (iv) Any put, call, straddle, option, or privilege on a security as 
described in paragraphs (b)(7) (i), (ii), or (iii) of this section other 
than a put, call, straddle, option, or privilege that is traded on one 
or more national securities exchanges, or for which quotations are 
disseminated though an automated quotation system operated by a 
registered securities association.
    (8) Investment discretion with respect to an account shall mean if 
the State member bank, directly or indirectly, is authorized to 
determine what securities or other property shall be purchased or sold 
by or for the account, or makes decisions as to what securities or other 
property shall be purchased or sold by or for the account even though 
some other person may have responsibility for such investment decisions.
    (9) Municipal security shall mean a security which is a direct 
obligation of, or obligation guaranteed as to principal or interest by, 
a State or any political subdivision thereof, or any agency or 
instrumentality of a State or any political subdivision thereof, or any 
municipal corporate instrumentality of one or more States, or any 
security which is an industrial development bond (as defined in 26 
U.S.C. 103(c)(2) the interest on which is excludable from gross income 
under 26 U.S.C. 103(a)(1), by reason of the application of paragraph (4) 
or (6) of 26 U.S.C. 103(c) (determined as if paragraphs (4)(A), (5) and 
(7) were not included in 26 U.S.C. 103(c)), paragraph (1) of 26 U.S.C. 
103(c) does not apply to such security.
    (10) Periodic plan shall mean:
    (i) A written authorization for a State member bank to act as agent 
to purchase or sell for a customer a specific security or securities, in 
a specific amount (calculated in security units or dollars) or to the 
extent of dividends and funds available, at specific time intervals, and 
setting forth the commission or charges to be paid by the customer or 
the manner of calculating them (including dividend reinvestment plans, 
automatic investment plans, and employee stock purchase plans); or
    (ii) Any prearranged, automatic transfer or sweep of funds from a 
deposit account to purchase a security, or any prearranged, automatic 
redemption or sale of a security with the funds being transferred into a 
deposit account (including cash management sweep services).
    (11) Security shall mean:
    (i) Any note, stock, treasury stock, bond, debenture, certificate of 
interest or participation in any profit-sharing agreement or in any oil, 
gas, or other mineral royalty or lease, any collateral-trust 
certificate, preorganization certificate or subscription, transferable 
share, investment contract, voting-trust certificate, for a security, 
any put, call, straddle, option, or privilege on any security, or group 
or index of securities (including any interest therein or based on the 
value thereof), any instrument commonly known as a ``security''; or any 
certificate of interest or participation in, temporary or interim 
certificate for, receipt for, or warrant or right to subscribe to or 
purchase, any of the foregoing.
    (ii) But does not include a deposit or share account in a federally 
or state insured depository institution, a loan participation, a letter 
of credit or other form of bank indebtedness incurred in the ordinary 
course of business, currency, any note, draft, bill of exchange, or 
bankers acceptance which has a maturity at the time of issuance of not 
exceeding nine months, exclusive of days of grace, or any renewal 
thereof the maturity of which is likewise limited, units of a collective 
investment fund, interests in a variable

[[Page 209]]

amount (master) note of a borrower of prime credit, or U.S. Savings 
Bonds.
    (c) Recordkeeping. Except as provided in paragraph (a) of this 
section, every State member bank effecting securities transactions for 
customers, including transactions in government securities, and 
municipal securities transactions by banks not subject to registration 
as municipal securities dealers, shall maintain the following records 
with respect to such transactions for at least three years. Nothing 
contained in this section shall require a bank to maintain the records 
required by this paragraph in any given manner, provided that the 
information required to be shown is clearly and accurately reflected and 
provides an adequate basis for the audit of such information. Records 
may be maintained in hard copy, automated, or electronic form provided 
the records are easily retrievable, readily available for inspection, 
and capable of being reproduced in a hard copy. A bank may contract with 
third party service providers, including broker/dealers, to maintain 
records required under this part.
    (1) Chronological records of original entry containing an itemized 
daily record of all purchases and sales of securities. The records of 
original entry shall show the account or customer for which each such 
transaction was effected, the description of the securities, the unit 
and aggregate purchase or sale price (if any), the trade date and the 
name or other designation of the broker/dealer or other person from whom 
purchased or to whom sold;
    (2) Account records for each customer which shall reflect all 
purchases and sales of securities, all receipts and deliveries of 
securities, and all receipts and disbursements of cash with respect to 
transactions in securities for such account and all other debits and 
credits pertaining to transactions in securities;
    (3) A separate memorandum (order ticket) of each order to purchase 
or sell securities (whether executed or cancelled), which shall include:
    (i) The account(s) for which the transaction was effected;
    (ii) Whether the transaction was a market order, limit order, or 
subject to special instructions;
    (iii) The time the order was received by the trader or other bank 
employee responsible for effecting the transaction;
    (iv) The time the order was placed with the broker/dealer, or if 
there was no broker/dealer, the time the order was executed or canceled;
    (v) The price at which the order was executed; and
    (vi) The broker/dealer utilized;
    (4) A record of all broker/dealers selected by the bank to effect 
securities transactions and the amount of commissions paid or allocated 
to each such broker during the calendar year; and
    (5) A copy of the written notification required by paragraphs (c) 
and (d) of this section.
    (d) Content and time of notification. Every State member bank 
effecting a securities transaction for a customer shall give or send to 
such customer either of the following types of notifications at or 
before completion of the transaction or; if the bank uses a broker/
dealer's confirmation, within one business day from the bank's receipt 
of the broker/dealer's confirmation:
    (1) A copy of the confirmation of a broker/dealer relating to the 
securities transaction; and if the bank is to receive remuneration from 
the customer or any other source in connection with the transaction, and 
the remuneration is not determined pursuant to a prior written agreement 
between the bank and the customer, a statement of the source and the 
amount of any remuneration to be received; or
    (2) A written notification disclosing:
    (i) The name of the bank;
    (ii) The name of the customer;
    (iii) Whether the bank is acting as agent for such customer, as 
agent for both such customer and some other person, as principal for its 
own account, or in any other capacity;
    (iv) The date of execution and a statement that the time of 
execution will be furnished within a reasonable time upon written 
request of such customer specifying the identity, price and number of 
shares or units (or principal amount in the case of debt securities) of 
such security purchased or sold by such customer;

[[Page 210]]

    (v) The amount of any remuneration received or to be received, 
directly or indirectly, by any broker/dealer from such customer in 
connection with the transaction;
    (vi) The amount of any remuneration received or to be received by 
the bank from the customer and the source and amount of any other 
remuneration to be received by the bank in connection with the 
transaction, unless remuneration is determined pursuant to a written 
agreement between the bank and the customer, provided, however, in the 
case of Government securities and municipal securities, this paragraph 
(d)(2)(vi) shall apply only with respect to remuneration received by the 
bank in an agency transaction. If the bank elects not to disclose the 
source and amount of remuneration it has or will receive from a party 
other than the customer pursuant to this paragraph (d)(2)(vi), the 
written notification must disclose whether the bank has received or will 
receive remuneration from a party other than the customer, and that the 
bank will furnish within a reasonable time the source and amount of this 
remuneration upon written request of the customer. This election is not 
available, however, if, with respect to a purchase, the bank was 
participating in a distribution of that security; or with respect to a 
sale, the bank was participating in a tender offer for that security;
    (vii) The name of the broker/dealer utilized; or, where there is no 
broker/dealer, the name of the person from whom the security was 
purchased or to whom it was sold, or the fact that such information will 
be furnished within a reasonable time upon written request;
    (viii) In the case of a transaction in a debt security subject to 
redemption before maturity, a statement to the effect that the debt 
security may be redeemed in whole or in part before maturity, that the 
redemption could affect the yield represented and that additional 
information is available on request;
    (ix) In the case of a transaction in a debt security effected 
exclusively on the basis of a dollar price:
    (A) The dollar price at which the transaction was effected;
    (B) The yield to maturity calculated from the dollar price; 
provided, however, that this paragraph (c)(2)(ix)(B) shall not apply to 
a transaction in a debt security that either has a maturity date that 
may be extended by the issuer with a variable interest payable thereon, 
or is an asset-backed security that represents an interest in or is 
secured by a pool of receivables or other financial assets that are 
subject to continuous prepayment;
    (x) In the case of a transaction in a debt security effected on the 
basis of yield:
    (A) The yield at which the transaction was effected, including the 
percentage amount and its characterization (e.g., current yield, yield 
to maturity, or yield to call) and if effected at yield to call, the 
type of call, the call date, and the call price; and
    (B) The dollar price calculated from the yield at which the 
transaction was effected; and
    (C) If effected on a basis other than yield to maturity and the 
yield to maturity is lower than the represented yield, the yield to 
maturity as well as the represented yield; provided, however, that this 
paragraph (c)(2)(x)(C) shall not apply to a transaction in a debt 
security that either has a maturity date that may be extended by the 
issuer with a variable interest rate payable thereon, or is an asset-
backed security that represents an interest in or is secured by a pool 
of receivables or other financial assets that are subject to continuous 
prepayment;
    (xi) In the case of a transaction in a debt security that is an 
asset-backed security which represents an interest in or is secured by a 
pool of receivables or other financial assets that are subject 
continuously to prepayment, a statement indicating that the actual yield 
of such asset-backed security may vary according to the rate at which 
the underlying receivables or other financial assets are prepaid and a 
statement of the fact that information concerning the factors that 
affect yield (including at a minimum, the estimated yield, weighted 
average life, and the prepayment assumptions underlying yield) will be 
furnished upon written request of such customer; and

[[Page 211]]

    (xii) In the case of a transaction in a debt security, other than a 
government security, that the security is unrated by a nationally 
recognized statistical rating organization, if that is the case.
    (e) Notification by agreement; alternative forms and times of 
notification. A State member bank may elect to use the following 
alternative procedures if a transaction is effected for:
    (1) Accounts (except periodic plans) where the bank does not 
exercise investment discretion and the bank and the customer agree in 
writing to a different arrangement as to the time and content of the 
notification; provided, however, that such agreement makes clear the 
customer's right to receive the written notification pursuant to 
paragraph (c) of this section at no additional cost to the customer;
    (2) Accounts (except collective investment funds) where the bank 
exercises investment discretion in other than an agency capacity, in 
which instance the bank shall, upon request of the person having the 
power to terminate the account or, if there is no such person, upon the 
request of any person holding a vested beneficial interest in such 
account, give or send to such person the written notification within a 
reasonable time. The bank may charge such person a reasonable fee for 
providing this information;
    (3) Accounts, where the bank exercises investment discretion in an 
agency capacity, in which instance:
    (i) The bank shall give or send to each customer not less frequently 
than once every three months an itemized statement which shall specify 
the funds and securities in the custody or possession of the bank at the 
end of such period and all debits, credits and transactions in the 
customer's accounts during such period; and
    (ii) If requested by the customer, the bank shall give or send to 
each customer within a reasonable time the written notification 
described in paragraph (c) of this section. The bank may charge a 
reasonable fee for providing the information described in paragraph (c) 
of this section;
    (4) A collective investment fund, in which instance the bank shall 
at least annually furnish a copy of a financial report of the fund, or 
provide notice that a copy of such report is available and will be 
furnished upon request, to each person to whom a regular periodic 
accounting would ordinarily be rendered with respect to each 
participating account. This report shall be based upon an audit made by 
independent public accountants or internal auditors responsible only to 
the board of directors of the bank;
    (5) A periodic plan, in which instance the bank:
    (i) Shall (except for a cash management sweep service) give or send 
to the customer a written statement not less than every three months if 
there are no securities transactions in the account, showing the 
customer's funds and securities in the custody or possession of the 
bank; all service charges and commissions paid by the customer in 
connection with the transaction; and all other debits and credits of the 
customer's account involved in the transaction; or
    (ii) Shall for a cash management sweep service or similar periodic 
plan as defined in Sec. 208.24(b)(10)(ii) give or send its customer a 
written statement in the same form as prescribed in paragraph (e)(i) 
above for each month in which a purchase or sale of a security takes 
place in a deposit account and not less than once every three months if 
there are no securities transactions in the account subject to any other 
applicable laws or regulations;
    (6) Upon the written request of the customer the bank shall furnish 
the information described in paragraph (c) of this section, except that 
any such information relating to remuneration paid in connection with 
the transaction need not be provided to the customer when paid by a 
source other than the customer. The bank may charge a reasonable fee for 
providing the information described in paragraph (d) of this section.
    (f) Settlement of securities transactions. All contracts for the 
purchase or sale of a security shall provide for completion of the 
transaction within the number of business days in the standard 
settlement cycle for the security followed by registered broker dealers 
in the United States unless otherwise agreed to by the parties at the 
time of the transaction.

[[Page 212]]

    (g) Securities trading policies and procedures. Every State member 
bank effecting securities transactions for customers shall establish 
written policies and procedures providing:
    (1) Assignment of responsibility for supervision of all officers or 
employees who:
    (i) Transmit orders to or place orders with broker/dealers;
    (ii) Execute transactions in securities for customers; or
    (iii) Process orders for notification and/or settlement purposes, or 
perform other back office functions with respect to securities 
transactions effected for customers; provided that procedures 
established under this paragraph (g)(1)(iii) should provide for 
supervision and reporting lines that are separate from supervision of 
personnel under paragraphs (g)(1)(i) and (g)(1)(ii) of this section;
    (2) For the fair and equitable allocation of securities and prices 
to accounts when orders for the same security are received at 
approximately the same time and are placed for execution either 
individually or in combination;
    (3) Where applicable and where permissible under local law, for the 
crossing of buy and sell orders on a fair and equitable basis to the 
parties to the transaction; and
    (4) That bank officers and employees who make investment 
recommendations or decisions for the accounts of customers, who 
participate in the determination of such recommendations or decisions, 
or who, in connection with their duties, obtain information concerning 
which securities are being purchased or sold or recommended for such 
action, must report to the bank, within ten days after the end of the 
calendar quarter, all transactions in securities made by them or on 
their behalf, either at the bank or elsewhere in which they have a 
beneficial interest. The report shall identify the securities purchased 
or sold and indicate the dates of the transactions and whether the 
transactions were purchases or sales. Excluded from this requirement are 
transactions for the benefit of the officer or employee over which the 
officer or employee has no direct or indirect influence or control, 
transactions in mutual fund shares, and all transactions involving in 
the aggregate $10,000 or less during the calendar quarter. For purposes 
of this paragraph (g)(4), the term securities does not include 
government securities.
[Reg. H, 62 FR 9911, Mar. 5, 1997]



Sec. 208.25  Government securities sales practices.

    (a) Scope. This subpart is applicable to state member banks that 
have filed notice as, or are required to file notice as, government 
securities brokers or dealers pursuant to section 15C of the Securities 
Exchange Act (15 U.S.C. 78o-5) and Department of the Treasury rules 
under section 15C (17 CFR 400.1(d) and part 401).
    (b) Definitions--(1) Bank that is a government securities broker or 
dealer means a state member bank that has filed notice, or is required 
to file notice, as a government securities broker or dealer pursuant to 
section 15C of the Securities Exchange Act (15 U.S.C. 78o-5) and 
Department of the Treasury rules under section 15C (17 CFR 400.1(d) and 
part 401).
    (2) Customer does not include a broker or dealer or a government 
securities broker or dealer.
    (3) Government security has the same meaning as this term has in 
section 3(a)(42) of the Securities Exchange Act of 1934 (15 U.S.C. 
78c(a)(42)).
    (4) Non-institutional customer means any customer other than:
    (i) A bank, savings association, insurance company, or registered 
investment company;
    (ii) An investment adviser registered under section 203 of the 
Investment Advisers Act of 1940 (15 U.S.C. 80b-3); or
    (iii) Any entity (whether a natural person, corporation, 
partnership, trust, or otherwise) with total assets of at least $50 
million.
    (c) Business conduct. A bank that is a government securities broker 
or dealer shall observe high standards of commercial honor and just and 
equitable principles of trade in the conduct of its business as a 
government securities broker or dealer.
    (d) Recommendations to customers. In recommending to a customer the 
purchase, sale or exchange of a government security, a bank that is a 
government securities broker or dealer shall

[[Page 213]]

have reasonable grounds for believing that the recommendation is 
suitable for the customer upon the basis of the facts, if any, disclosed 
by the customer as to the customer's other security holdings and as to 
the customer's financial situation and needs.
    (e) Customer information. Prior to the execution of a transaction 
recommended to a non-institutional customer, a bank that is a government 
securities broker or dealer shall make reasonable efforts to obtain 
information concerning:
    (1) The customer's financial status;
    (2) The customer's tax status;
    (3) The customer's investment objectives; and
    (4) Such other information used or considered to be reasonable by 
the bank in making recommendations to the customer.
[Reg. H, 62 FR 13285, Mar. 19, 1997]



Sec. 208.26  Frequency of examination.

    (a) General. The Federal Reserve examines insured member banks 
pursuant to authority conferred by 12 U.S.C. 325 and the requirements of 
12 U.S.C. 1820(d). The Federal Reserve is required to conduct a full-
scope, on-site examination of every insured member bank at least once 
during each 12-month period.
    (b) 18-month rule for certain small institutions. The Federal 
Reserve may conduct a full-scope, on-site examination at least once 
during each 18-month period, rather than each 12-month period as 
provided in paragraph (a) of this section, if the following conditions 
are satisfied:
    (1) The insured member bank has total assets of $250 million or 
less;
    (2) The insured member bank is well capitalized as defined in 
subpart B of this part (Sec. 208.33);
    (3) At its most recent examination, the Federal Reserve found the 
insured member bank to be well managed;
    (4) At its most recent examination, the Federal Reserve determined 
that the insured member bank was in outstanding or good condition, that 
is, it received a composite rating of 1 or 2 under the Uniform Financial 
Institutions Rating System (Copies are available at the address 
specified in Sec. 216.6 of this chapter);
    (5) The insured member bank currently is not subject to a formal 
enforcement proceeding or order by the FDIC, OCC, or Federal Reserve 
Board; and
    (6) No person acquired control of the insured member bank during the 
preceding 12-month period in which a full-scope on-site examination 
would have been required but for this section.
    (c) Authority to conduct more frequent examinations. This section 
does not limit the authority of the Federal Reserve to examine any 
insured member bank as frequently as the agency deems necessary.
[Reg. H, 62 FR 6452, Feb. 12, 1997]



Sec. 208.28  Prohibition against use of interstate branches primarily for deposit production.

    (a) Purpose and scope--(1) Purpose. The purpose of this section is 
to implement section 109 (12 U.S.C. 1835a) of the Riegle-Neal Interstate 
Banking and Branching Efficiency Act of 1994 (Interstate Act).
    (2) Scope. (i) This section applies to any State member bank that 
has operated a covered interstate branch for a period of at least one 
year, and any foreign bank that has operated a covered interstate branch 
licensed by a State for a period of at least one year.
    (ii) This section describes the requirements imposed under 12 U.S.C. 
1835a, which requires the appropriate Federal banking agencies (the 
Board, the Office of the Comptroller of the Currency, and the Federal 
Deposit Insurance Corporation) to prescribe uniform rules that prohibit 
a bank from using any authority to engage in interstate branching 
pursuant to the Interstate Act, or any amendment made by the Interstate 
Act to any other provision of law, primarily for the purpose of deposit 
production.
    (b) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Bank means, unless the context indicates otherwise:
    (i) A State member bank as that term is defined in 12 U.S.C. 
1813(d)(2); and
    (ii) A foreign bank as that term is defined in 12 U.S.C. 3101(7) and 
12 CFR 211.21.

[[Page 214]]

    (2) Covered interstate branch means any branch of a State member 
bank, and any uninsured branch of a foreign bank licensed by a State, 
that:
    (i) Is established or acquired outside the bank's home state 
pursuant to the interstate branching authority granted by the Interstate 
Act or by any amendment made by the Interstate Act to any other 
provision of law; or
    (ii) Could not have been established or acquired outside of the 
bank's home state but for the establishment or acquisition of a branch 
described in paragraph (b)(2)(i) of this section.
    (3) Home state means:
    (i) With respect to a state bank, the state that chartered the bank;
    (ii) With respect to a national bank, the state in which the main 
office of the bank is located; and
    (iii) With respect to a foreign bank, the home state of the foreign 
bank as determined in accordance with 12 U.S.C. 3103(c) and 12 CFR 
211.22.
    (4) Host state means a state in which a bank establishes or acquires 
a covered interstate branch.
    (5) Host state loan-to-deposit ratio generally means, with respect 
to a particular host state, the ratio of total loans in the host state 
relative to total deposits from the host state for all banks (including 
institutions covered under the definition of ``bank'' in 12 U.S.C. 
1813(a)(1)) that have that state as their home state, as determined and 
updated periodically by the appropriate Federal banking agencies and 
made available to the public.
    (6) State means state as that term is defined in 12 U.S.C. 
1813(a)(3).
    (7) Statewide loan-to-deposit ratio means, with respect to a bank, 
the ratio of the bank's loans to its deposits in a state in which the 
bank has one or more covered interstate branches, as determined by the 
Board.
    (c) Loan-to-deposit ratio screen--(1) Application of screen. 
Beginning no earlier than one year after a bank establishes or acquires 
a covered interstate branch, the Board will consider whether the bank's 
statewide loan-to-deposit ratio is less than 50 percent of the relevant 
host state loan-to-deposit ratio.
    (2) Results of screen. (i) If the Board determines that the bank's 
statewide loan-to-deposit ratio is 50 percent or more of the host state 
loan-to-deposit ratio, no further consideration under this section is 
required.
    (ii) If the Board determines that the bank's statewide loan-to-
deposit ratio is less than 50 percent of the host state loan-to-deposit 
ratio, or if reasonably available data are insufficient to calculate the 
bank's statewide loan-to-deposit ratio, the Board will make a credit 
needs determination for the bank as provided in paragraph (d) of this 
section.
    (d) Credit needs determination--(1) In general. The Board will 
review the loan portfolio of the bank and determine whether the bank is 
reasonably helping to meet the credit needs of the communities in the 
host state that are served by the bank.
    (2) Guidelines. The Board will use the following considerations as 
guidelines when making the determination pursuant to paragraph (d)(1) of 
this section:
    (i) Whether covered interstate branches were formerly part of a 
failed or failing depository institution;
    (ii) Whether covered interstate branches were acquired under 
circumstances where there was a low loan-to-deposit ratio because of the 
nature of the acquired institution's business or loan portfolio;
    (iii) Whether covered interstate branches have a high concentration 
of commercial or credit card lending, trust services, or other 
specialized activities, including the extent to which the covered 
interstate branches accept deposits in the host state;
    (iv) The Community Reinvestment Act ratings received by the bank, if 
any, under 12 U.S.C. 2901 et seq.;
    (v) Economic conditions, including the level of loan demand, within 
the communities served by the covered interstate branches;
    (vi) The safe and sound operation and condition of the bank; and
    (vii) The Board's Regulation BB--Community Reinvestment (12 CFR Part 
228) and interpretations of that regulation.
    (e) Sanctions--(1) In general. If the Board determines that a bank 
is not reasonably helping to meet the credit needs of the communities 
served by the bank in the host state, and that the bank's statewide 
loan-to-deposit ratio

[[Page 215]]

is less than 50 percent of the host state loan-to-deposit ratio, the 
Board:
    (i) May order that a bank's covered interstate branch or branches be 
closed unless the bank provides reasonable assurances to the 
satisfaction of the Board, after an opportunity for public comment, that 
the bank has an acceptable plan under which the bank will reasonably 
help to meet the credit needs of the communities served by the bank in 
the host state; and
    (ii) Will not permit the bank to open a new branch in the host state 
that would be considered to be a covered interstate branch unless the 
bank provides reasonable assurances to the satisfaction of the Board, 
after an opportunity for public comment, that the bank will reasonably 
help to meet the credit needs of the community that the new branch will 
serve.
    (2) Notice prior to closure of a covered interstate branch. Before 
exercising the Board's authority to order the bank to close a covered 
interstate branch, the Board will issue to the bank a notice of the 
Board's intent to order the closure and will schedule a hearing within 
60 days of issuing the notice.
    (3) Hearing. The Board will conduct a hearing scheduled under 
paragraph (e)(2) of this section in accordance with the provisions of 12 
U.S.C. 1818(h) and 12 CFR part 263.
[Reg. H, 62 FR 47735, Sept. 10, 1997]



                   Subpart B--Prompt Corrective Action

    Source:  57 FR 44885, Sept. 29, 1992, unless otherwise noted.



Sec. 208.30  Authority, purpose, scope, other supervisory authority, and disclosure of capital categories.

    (a) Authority. This subpart is issued by the Board of Governors of 
the Federal Reserve System (Board) pursuant to section 38 (section 38) 
of the Federal Deposit Insurance Act (FDI Act) as added by section 131 
of the Federal Deposit Insurance Corporation Improvement Act of 1991 
(Pub. L. 102-242, 105 Stat. 2236 (1991)) (12 U.S.C. 1831o.).
    (b) Purpose. Section 38 of the FDI Act establishes a framework of 
supervisory actions for insured depository institutions that are not 
adequately capitalized. The principal purpose of this subpart is to 
define, for state member banks, the capital measures and capital levels 
that are used for determining the supervisory actions authorized under 
section 38 of the FDI Act. This subpart also establishes procedures for 
submission and review of capital restoration plans and for issuance and 
review of directives and orders pursuant to section 38.
    (c) Scope. This subpart implements the provisions of section 38 of 
the FDI Act as they apply to state member banks. Certain of these 
provisions also apply to officers, directors and employees of state 
member banks. Other provisions apply to any company that controls a 
state member bank and to the affiliates of a state member bank.
    (d) Other supervisory authority. Neither section 38 nor this subpart 
in any way limits the authority of the Board under any other provision 
of law to take supervisory actions to address unsafe or unsound 
practices, deficient capital levels, violations of law, unsafe or 
unsound conditions, or other practices. Action under section 38 of the 
FDI Act and this subpart may be taken independently of, in conjunction 
with, or in addition to any other enforcement action available to the 
Board, including issuance of cease and desist orders, capital 
directives, approval or denial of applications or notices, assessment of 
civil money penalties, or any other actions authorized by law.
    (e) Disclosure of capital categories. The assignment of a bank under 
this subpart within a particular capital category is for purposes of 
implementing and applying the provisions of section 38. Unless permitted 
by the Board or otherwise required by law, no bank may state in any 
advertisement or promotional material its capital category under this 
subpart or that the Board or any other Federal banking agency has 
assigned the bank to a particular capital category.



Sec. 208.31  Definitions.

    For purposes of this subpart, except as modified in this section or 
unless the context otherwise requires, the terms used have the same 
meanings as

[[Page 216]]

set forth in section 38 and section 3 of the FDI Act.
    (a) (1) Control has the same meaning assigned to it in section 2 of 
the Bank Holding Company Act (12 U.S.C. 1841), and the term 
``controlled'' shall be construed consistently with the term 
``control.''
    (2) Exclusion for fiduciary ownership. No insured depository 
institution or company controls another insured depository institution 
or company by virtue of its ownership or control of shares in a 
fiduciary capacity. Shares shall not be deemed to have been acquired in 
a fiduciary capacity if the acquiring insured depository institution or 
company has sole discretionary authority to exercise voting rights with 
respect thereto.
    (3) Exclusion for debts previously contracted. No insured depository 
institution or company controls another insured depository institution 
or company by virtue of its ownership or control of shares acquired in 
securing or collecting a debt previously contracted in good faith, until 
two years after the date of acquisition. The two-year period may be 
extended at the discretion of the appropriate Federal banking agency for 
up to three one-year periods.
    (b) Controlling person means any person having control of an insured 
depository institution and any company controlled by that person.
    (c) Leverage ratio means the ratio of Tier 1 capital to average 
total consolidated assets, as calculated in accordance with the Board's 
Capital Adequacy Guidelines for State Member Banks: Tier 1 Leverage 
Measure (appendix B to part 208).
    (d) Management fee means any payment of money or provision of any 
other thing of value to a company or individual for the provision of 
management services or advice to the bank or related overhead expenses, 
including payments related to supervisory, executive, managerial, or 
policymaking functions, other than compensation to an individual in the 
individual's capacity as an officer or employee of the bank.
    (e) Risk-weighted assets means total weighted risk assets, as 
calculated in accordance with the Board's Capital Adequacy Guidelines 
for State Member Banks: Risk-Based Measure (appendix A to part 208).
    (f) Tangible equity means the amount of core capital elements in the 
Board's Capital Adequacy Guidelines for State Member Banks: Risk-Based 
Measure (Appendix A to this part), plus the amount of outstanding 
cumulative perpetual preferred stock (including related surplus), minus 
all intangible assets except mortgage servicing rights to the extent 
that the Board determines that mortgage servicing rights may be included 
in calculating the bank's tier 1 capital.
    (g) Tier 1 capital means the amount of Tier 1 capital as defined in 
the Board's Capital Adequacy Guidelines for State Member Banks: Risk-
Based Measure (appendix A to part 208).
    (h) Tier 1 risk-based capital ratio means the ratio of Tier 1 
capital to weighted risk assets, as calculated in accordance with the 
Board's Capital Adequacy Guidelines for State Member Banks: Risk-Based 
Measure (appendix A to part 208).
    (i) Total assets means quarterly average total assets as reported in 
a bank's Report of Condition and Income (Call Report), minus intangible 
assets as provided in the definition of tangible equity.
    (j) Total risk-based capital ratio means the ratio of qualifying 
total capital to weighted risk assets, as calculated in accordance with 
the Board's Capital Adequacy Guidelines for State Member Banks: Risk-
Based Measure (appendix A to part 208).
[57 FR 44885, Sept. 29, 1992, as amended at 60 FR 39229, Aug. 1, 1995]



Sec. 208.32  Notice of capital category.

    (a) Effective date of determination of capital category. A state 
member bank shall be deemed to be within a given capital category for 
purposes of section 38 of the FDI Act and this subpart as of the date 
the bank is notified of, or is deemed to have notice of, its capital 
category, pursuant to paragraph (b) of this section.
    (b) Notice of capital category. A state member bank shall be deemed 
to have been notified of its capital levels and its capital category as 
of the most recent date:

[[Page 217]]

    (1) A Report of Condition and Income (Call Report) is required to be 
filed with the Board;
    (2) A final report of examination is delivered to the bank; or
    (3) Written notice is provided by the Board to the bank of its 
capital category for purposes of section 38 of the FDI Act and this 
subpart or that the bank's capital category has changed as provided in 
paragraph (c) of this section or Sec. 208.33(c).
    (c) Adjustments to reported capital levels and capital category--(1) 
Notice of adjustment by bank. A state member bank shall provide the 
Board with written notice that an adjustment to the bank's capital 
category may have occurred no later than 15 calendar days following the 
date that any material event has occurred that would cause the bank to 
be placed in a lower capital category from the category assigned to the 
bank for purposes of section 38 and this subpart on the basis of the 
bank's most recent Call Report or report of examination.
    (2) Determination by the Board to change capital category. After 
receiving notice pursuant to paragraph (c)(1) of this section, the Board 
shall determine whether to change the capital category of the bank and 
shall notify the bank of the Board's determination.



Sec. 208.33  Capital measures and capital category definitions.

    (a) Capital measures. For purposes of section 38 and this subpart, 
the relevant capital measures shall be:
    (1) The total risk-based capital ratio;
    (2) The Tier 1 risk-based capital ratio; and
    (3) The leverage ratio.
    (b) Capital categories. For purposes of section 38 and this subpart, 
a state member bank shall be deemed to be:
    (1) ``Well capitalized'' if the bank:
    (i) Has a total risk-based capital ratio of 10.0 percent or greater; 
and
    (ii) Has a Tier 1 risk-based capital ratio of 6.0 percent or 
greater; and
    (iii) Has a leverage ratio of 5.0 percent or greater; and
    (iv) Is not subject to any written agreement, order, capital 
directive, or prompt corrective action directive issued by the Board 
pursuant to section 8 of the FDI Act, the International Lending 
Supervision Act of 1983 (12 U.S.C. 3907), or section 38 of the FDI Act, 
or any regulation thereunder, to meet and maintain a specific capital 
level for any capital measure.
    (2) ``Adequately capitalized'' if the bank:
    (i) Has a total risk-based capital ratio of 8.0 percent or greater; 
and
    (ii) Has a Tier 1 risk-based capital ratio of 4.0 percent or 
greater; and
    (iii) Has--
    (A) A leverage ratio of 4.0 percent or greater, or
    (B) A leverage ratio of 3.0 percent or greater if the bank is rated 
composite 1 under the CAMEL rating system in the most recent examination 
of the bank and is not experiencing or anticipating significant growth; 
and
    (iv) Does not meet the definition of a ``well capitalized'' bank.
    (3) ``Undercapitalized'' if the bank:
    (i) Has a total risk-based capital ratio that is less than 8.0 
percent; or
    (ii) Has a Tier 1 risk-based capital ratio that is less than 4.0 
percent; or
    (iii) (A) Except as provided in clause (B), has a leverage ratio 
that is less than 4.0 percent; or
    (B) Has a leverage ratio that is less than 3.0 percent, if the bank 
is rated composite 1 under the CAMEL rating system in the most recent 
examination of the bank and is not experiencing or anticipating 
significant growth.
    (4) ``Significantly undercapitalized'' if the bank has--
    (i) A total risk-based capital ratio that is less than 6.0 percent; 
or
    (ii) A Tier 1 risk-based capital ratio that is less than 3.0 
percent; or
    (iii) A leverage ratio that is less than 3.0 percent.
    (5) ``Critically undercapitalized'' if the bank has a ratio of 
tangible equity to total assets that is equal to or less than 2.0 
percent.
    (c) Reclassification based on supervisory criteria other than 
capital. The Board may reclassify a well capitalized state member bank 
as adequately capitalized and may require an adequately capitalized or 
an undercapitalized state member bank to comply with certain mandatory 
or discretionary supervisory actions as if the bank were in the next 
lower capital category (except that the Board may not reclassify a

[[Page 218]]

significantly undercapitalized bank as critically undercapitalized) 
(each of these actions are hereinafter referred to generally as 
``reclassifications'') in the following circumstances:
    (1) Unsafe or unsound condition. The Board has determined, after 
notice and opportunity for hearing pursuant to Sec. 263.203 of this 
chapter, that the bank is in unsafe or unsound condition; or
    (2) Unsafe or unsound practice. The Board has determined, after 
notice and opportunity for hearing pursuant to Sec. 263.203 of this 
chapter, that, in the most recent examination of the bank, the bank 
received and has not corrected, a less-than-satisfactory rating for any 
of the categories of asset quality, management, earnings, or liquidity.



Sec. 208.34  Capital restoration plans.

    (a) Schedule for filing plan--(1) In general. A state member bank 
shall file a written capital restoration plan with the appropriate 
Reserve Bank within 45 days of the date that the bank receives notice or 
is deemed to have notice that the bank is undercapitalized, 
significantly undercapitalized, or critically undercapitalized, unless 
the Board notifies the bank in writing that the plan is to be filed 
within a different period. An adequately capitalized bank that has been 
required pursuant to Sec. 208.33(c) to comply with supervisory actions 
as if the bank were undercapitalized is not required to submit a capital 
restoration plan solely by virtue of the reclassification.
    (2) Additional capital restoration plans. Notwithstanding paragraph 
(a)(1) of this section, a bank that has already submitted and is 
operating under a capital restoration plan approved under section 38 and 
this subpart is not required to submit an additional capital restoration 
plan based on a revised calculation of its capital measures or a 
reclassification of the institution under Sec. 208.33(c) unless the 
Board notifies the bank that it must submit a new or revised capital 
plan. A bank that is notified that it must submit a new or revised 
capital restoration plan shall file the plan in writing with the 
appropriate Reserve Bank within 45 days of receiving such notice, unless 
the Board notifies the bank in writing that the plan is to be filed 
within a different period.
    (b) Contents of plan. All financial data submitted in connection 
with a capital restoration plan shall be prepared in accordance with the 
instructions provided on the Call Report, unless the Board instructs 
otherwise. The capital restoration plan shall include all of the 
information required to be filed under section 38(e)(2) of the FDI Act. 
A bank that is required to submit a capital restoration plan as the 
result of a reclassification of the bank pursuant to Sec. 208.33(c) 
shall include a description of the steps the bank will take to correct 
the unsafe or unsound condition or practice. No plan shall be accepted 
unless it includes any performance guarantee described in section 
38(e)(2)(C) of that Act by each company that controls the bank.
    (c) Review of capital restoration plans. Within 60 days after 
receiving a capital restoration plan under this subpart, the Board shall 
provide written notice to the bank of whether the plan has been 
approved. The Board may extend the time within which notice regarding 
approval of a plan shall be provided.
    (d) Disapproval of capital plan. If a capital restoration plan is 
not approved by the Board, the bank shall submit a revised capital 
restoration plan within the time specified by the Board. Upon receiving 
notice that its capital restoration plan has not been approved, any 
undercapitalized state member bank (as defined in Sec. 208.33(b)(3)) 
shall be subject to all of the provisions of section 38 and this subpart 
applicable to significantly undercapitalized institutions. These 
provisions shall be applicable until such time as a new or revised 
capital restoration plan submitted by the bank has been approved by the 
Board.
    (e) Failure to submit capital restoration plan. A state member bank 
that is undercapitalized (as defined in Sec. 208.33(b)(3)) and that 
fails to submit a written capital restoration plan within the period 
provided in this section shall, upon the expiration of that period, be 
subject to all of the provisions of section 38 and this subpart 
applicable to significantly undercapitalized institutions.

[[Page 219]]

    (f) Failure to implement capital restoration plan. Any 
undercapitalized state member bank that fails in any material respect to 
implement a capital restoration plan shall be subject to all of the 
provisions of section 38 and this subpart applicable to significantly 
undercapitalized institutions.
    (g) Amendment of capital plan. A bank that has filed an approved 
capital restoration 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 capital restoration plan as approved prior to the proposed 
amendment.
    (h) Notice to FDIC. Within 45 days of the effective date of Board 
approval of a capital restoration plan, or any amendment to a capital 
restoration plan, the Board shall provide a copy of the plan or 
amendment to the Federal Deposit Insurance Corporation.
    (i) Performance guarantee by companies that control a bank--(1) 
Limitation on Liability--(i) Amount limitation. The aggregate liability 
under the guarantee provided under section 38 and this subpart for all 
companies that control a specific state member bank that is required to 
submit a capital restoration plan under this subpart shall be limited to 
the lesser of:
    (A) An amount equal to 5.0 percent of the bank's total assets at the 
time the bank was notified or deemed to have notice that the bank was 
undercapitalized; or
    (B) The amount necessary to restore the relevant capital measures of 
the bank to the levels required for the bank to be classified as 
adequately capitalized, as those capital measures and levels are defined 
at the time that the bank initially fails to comply with a capital 
restoration plan under this subpart.
    (ii) Limit on duration. The guarantee and limit of liability under 
section 38 and this subpart shall expire after the Board notifies the 
bank that it has remained adequately capitalized for each of four 
consecutive calendar quarters. The expiration or fulfillment by a 
company of a guarantee of a capital restoration plan shall not limit the 
liability of the company under any guarantee required or provided in 
connection with any capital restoration plan filed by the same bank 
after expiration of the first guarantee.
    (iii) Collection on guarantee. Each company that controls a given 
bank shall be jointly and severally liable for the guarantee for such 
bank as required under section 38 and this subpart, and the Board may 
require and collect payment of the full amount of that guarantee from 
any or all of the companies issuing the guarantee.
    (2) Failure to provide guarantee. In the event that a bank that is 
controlled by any company submits a capital restoration plan that does 
not contain the guarantee required under section 38(e) (2) of the FDI 
Act, the bank shall, upon submission of the plan, be subject to the 
provisions of section 38 and this subpart that are applicable to banks 
that have not submitted an acceptable capital restoration plan.
    (3) Failure to perform guarantee. Failure by any company that 
controls a bank to perform fully its guarantee of any capital plan shall 
constitute a material failure to implement the plan for purposes of 
section 38(f) of the FDI Act. Upon such failure, the bank shall be 
subject to the provisions of section 38 and this subpart that are 
applicable to banks that have failed in a material respect to implement 
a capital restoration plan.



Sec. 208.35  Mandatory and discretionary supervisory actions under section 38.

    (a) Mandatory supervisory actions--(1) Provisions applicable to all 
banks. All state member banks are subject to the restrictions contained 
in section 38(d) of the FDI Act on payment of capital distributions and 
management fees.
    (2) Provisions applicable to undercapitalized, significantly 
undercapitalized, and critically undercapitalized banks. Immediately 
upon receiving notice or being deemed to have notice, as provided in 
section Sec. 208.32 or section Sec. 208.34 of this subpart, that the 
bank is undercapitalized, significantly undercapitalized, or critically 
undercapitalized, the bank shall become subject to the provisions of 
section 38 of the FDI Act:

[[Page 220]]

    (i) Restricting payment of capital distributions and management fees 
(section 38(d));
    (ii) Requiring that the Board monitor the condition of the bank 
(section 38(e) (1));
    (iii) Requiring submission of a capital restoration plan within the 
schedule established in this subpart (section 38(e)(2));
    (iv) Restricting the growth of the bank's assets (section 38(e)(3)); 
and
    (v) Requiring prior approval of certain expansion proposals (section 
3(e)(4)).
    (3) Additional provisions applicable to significantly 
undercapitalized, and critically undercapitalized banks. In addition to 
the provisions of section 38 of the FDI Act described in paragraph 
(a)(2) of this section, immediately upon receiving notice or being 
deemed to have notice, as provided in Sec. 208.32 or Sec. 208.34 of this 
subpart, that the bank is significantly undercapitalized, or critically 
undercapitalized, or that the bank is subject to the provisions 
applicable to institutions that are significantly undercapitalized 
because the bank failed to submit or implement in any material respect 
an acceptable capital restoration plan, the bank shall become subject to 
the provisions of section 38 of the FDI Act that restrict compensation 
paid to senior executive officers of the institution (section 38(f)(4)).
    (4) Additional provisions applicable to critically undercapitalized 
banks. In addition to the provisions of section 38 of the FDI Act 
described in paragraphs (a) (2) and (3) of this section, immediately 
upon receiving notice or being deemed to have notice, as provided in 
Sec. 208.32 of this subpart, that the bank is critically 
undercapitalized, the bank shall become subject to the provisions of 
section 38 of the FDI Act:
    (i) Restricting the activities of the bank (section 38(h)(1)); and
    (ii) Restricting payments on subordinated debt of the bank (section 
38(h)(2)).
    (b) Discretionary supervisory actions. In taking any action under 
section 38 that is within the Board's discretion to take in connection 
with: A state member bank that is deemed to be undercapitalized, 
significantly undercapitalized, or critically undercapitalized, or has 
been reclassified as undercapitalized, or significantly 
undercapitalized; an officer or director of such bank; or a company that 
controls such bank, the Board shall follow the procedures for issuing 
directives under Secs. 263.202 and 263.204 of this chapter, unless 
otherwise provided in section 38 or this subpart.



                Subpart C--Real Estate Lending Standards

    Source:  57 FR 62899, Dec. 31, 1992, unless otherwise noted.



Sec. 208.51  Purpose and scope.

    This subpart, issued pursuant to section 304 of the Federal Deposit 
Insurance Corporation Improvement Act of 1991, 12 U.S.C. 1828(o), 
prescribes standards for real estate lending to be used by state member 
banks in adopting internal real estate lending policies.



Sec. 208.52  Real estate lending standards.

    (a) Each state bank that is a member of the Federal Reserve System 
shall adopt and maintain written policies that establish appropriate 
limits and standards for extensions of credit that are secured by liens 
on or interests in real estate, or that are made for the purpose of 
financing permanent improvements to real estate.
    (b)(1) Real estate lending policies adopted pursuant to this section 
must:
    (i) Be consistent with safe and sound banking practices;
    (ii) Be appropriate to the size of the institution and the nature 
and scope of its operations; and
    (iii) Be reviewed and approved by the bank's board of directors at 
least annually.
    (2) The lending policies must establish:
    (i) Loan portfolio diversification standards;
    (ii) Prudent underwriting standards, including loan-to-value limits, 
that are clear and measurable;
    (iii) Loan administration procedures for the bank's real estate 
portfolio; and
    (iv) Documentation, approval, and reporting requirements to monitor 
compliance with the bank's real estate lending policies.

[[Page 221]]

    (c) Each state member bank must monitor conditions in the real 
estate market in its lending area to ensure that its real estate lending 
policies continue to be appropriate for current market conditions.
    (d) The real estate lending policies adopted pursuant to this 
section should reflect consideration of the Interagency Guidelines for 
Real Estate Lending Policies established by the Federal bank and thrift 
supervisory agencies.



              Subpart D--Standards for Safety and Soundness



Sec. 208.60  Standards for safety and soundness.

    The Interagency Guidelines Establishing Standards for Safety and 
Soundness prescribed pursuant to section 39 of the Federal Deposit 
Insurance Act (12 U.S.C. 1831p-1), as set forth as appendix D to this 
part apply to all state member banks.
[60 FR 35682, July 10, 1995]



                       Subpart E--Interpretations



Sec. 208.116  Sale of bank's money orders off premises as establishment of branch office.

    (a) The Board of Governors has been asked to consider whether the 
appointment by a State member bank of an agent to sell the bank's money 
orders, at a location other than the premises of the bank, constitutes 
the establishment of a branch office.
    (b) Section 5155 of the Revised Statutes (12 U.S.C. 36), which is 
also applicable to State member banks, defines the term branch as 
including ``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.'' The basic question is whether 
the sale of a bank's money orders by an agent amounts to the receipt of 
deposits at a branch place of business within the meaning of this 
statute.
    (c) Money orders are classified as deposits for certain purposes. 
However, they bear a strong resemblance to traveler's checks that are 
issued by banks and sold off premises. In both cases, the purchaser does 
not intend to establish a deposit account in the bank, although a 
liability on the bank's part is created. Even though they result in a 
deposit liability, the Board is of the opinion that the issuance of a 
bank's money orders by an authorized agent does not involve the receipt 
of deposits at a ``branch place of business'' and accordingly does not 
require the Board's permission to establish a branch.
    (d) Banks engaging in this practice should, of course, exercise the 
utmost discretion in choosing agents to sell the bank's money orders. It 
has been suggested that the agents be bonded, their authority be 
limited, and proceeds of the sales be remitted daily. Also the bank's 
blanket bond might be amended to provide protection if the present 
provisions are inadequate.
[30 FR 3525, Mar. 17, 1965]



Sec. 208.117  Mobile branches.

    The Board of Governors was recently requested by a State member bank 
to approve the operation of mobile offices at designated out-of-town 
locations. These offices would be stationed at such locations on certain 
days and hours each week. Section 5155 of the Revised Statutes (12 
U.S.C. 36), which is made applicable by section 9 of the Federal Reserve 
Act to the establishment of branches by State member banks, defines the 
term branch as any ``place of business * * * at which deposits are 
received or checks paid, or money lent.'' Accordingly, the Board 
concluded that as each location would be a place of business at which 
some or all of such activities would be conducted, permission to 
establish branches was required. Such offices may only be approved by 
the Board when State statute permits branch banking at such locations. 
The approval of the State authorities had been obtained and the Board 
approved the establishment of branches at these locations.
[30 FR 14552, Nov. 23, 1965]

[[Page 222]]



Sec. 208.122  Loan ``Production Offices'' as branches.

    For text of interpretation relating to this subject, see 
Sec. 250.141 of this chapter.
[33 FR 11812, Aug. 21, 1968]



Sec. 208.123  Loan production offices and ``back office'' facilities.

    (a) Scope. The Board has considered two issues:
    (1) Whether a state member bank may establish a ``back office'' 
facility that is not accessible to the public and is not visited by 
customers without such a facility being considered to be a branch of the 
bank; and
    (2) Whether a loan production office will be considered to be a 
branch of the bank if it takes loan applications and performs related 
functions, but the loans are approved at locations other than an 
approved branch or main office of the bank and funds are not disbursed 
at the loan production office.
    (b) Authority. State member banks are subject to the same 
limitations on branching as national banks. Federal Reserve Act, section 
9, paragraph 3 (12 U.S.C. 321). Under the McFadden Act (44 Stat. 1228), 
national banks may establish branches within a state only at locations 
at which a state bank would be permitted to establish a branch. 12 
U.S.C. 36(c). For the purposes of the McFadden Act, ``branch'' is 
defined to include ``any branch bank, branch office, branch agency, 
additional office, or any branch place of business * * * at which 
deposits are received, or checks are paid, or money lent.'' 12 U.S.C. 
36(f). Interpreting the branching restrictions of the McFadden Act, the 
Supreme Court has stated that the purpose of the McFadden Act was to 
maintain competitive equality between national and state banks, and that 
the determination as to whether a facility was a branch must be based on 
the convenience of the customer, rather than on the technical or legal 
relationship between the customer and the bank. In later cases 
addressing automated teller machines, the courts generally have rejected 
arguments that money is lent at the time and place where a loan or line 
of credit is approved, and instead found that money is lent for the 
purposes of the McFadden Act when the customer actually receives the 
funds and interest begins to run on the loan. See, e.g., IBAA v. Smith, 
534 F.2d 921 (D.C. Cir. 1976).
    (c) Interpretation. The Board previously had determined that an 
office engaged in preliminary or servicing functions is not lending 
money and therefore is not a ``branch'' for the purposes of the McFadden 
Act if the loans originated by the office are approved and the funds 
disbursed at the main office or an approved branch of the bank. See 12 
CFR 250.141. Whether a loan production office should be considered to be 
a branch if loans originated by the office are approved at locations 
other than the main office or a branch of the bank depends on whether 
the location where loan approval takes place enhances the convenience to 
the customer and therefore provides a competitive advantage to the bank. 
Back office facilities that are not accessible to the public are not 
visited by customers and do not appear to provide customers of the bank 
with any greater level of convenience. From the point of view of a 
customer whose loan has been originated at a loan production office, 
there does not appear to be any difference in the convenience based on 
whether the loan is approved at the back office facility or at a branch 
of a bank, as it is unlikely that the customer will visit either 
location. Based on this analysis, the Board has concluded that a state 
member bank may establish a back office facility without such a facility 
being considered to be a branch for the purposes of the McFadden Act. 
The Board also has determined that loans originated by a loan production 
office may be approved at a back office location, rather than at the 
main office or a branch of the bank, without the loan production office 
being considered to be a branch, provided that the proceeds of loans 
originated by the loan production office are received by the customer at 
locations other than a loan production office or back office facility. 
This interpretation supersedes the Board's prior interpretation, 
published at 12 CFR 250.141, as it applies to loan production offices.
[60 FR 17437, Apr. 6, 1995]

[[Page 223]]



Sec. 208.124  Purchase of investment company stock by a state member bank.

    (a) Scope. The Board of Governors has been asked whether a state 
member bank may purchase and hold for its own account stock of 
investment companies (mutual funds) whose portfolios consist entirely of 
securities that state member banks may purchase directly, and futures, 
forwards, options, repurchase agreements and securities lending 
contracts relating to those securities.
    (b) Investment authority. The National Bank Act, 12 U.S.C. 24(7), 
provides that a national bank may purchase for its own account 
investment securities under such limits and restrictions as the 
Comptroller of the Currency may prescribe. The statute defines 
investment securities to mean marketable obligations evidencing 
indebtedness of any person, partnership, association, or corporation in 
the form of bonds, notes, and debentures. The Act further limits the 
holdings of securities of any one issuer to an amount equal to ten 
percent of the capital stock and surplus of the bank. These limits, 
however, do not apply to obligations issued by the United States, 
general obligations of any state or any political subdivision of any 
state, and to certain obligations of federal agencies. The restrictions 
of 12 U.S.C. 24(7) also apply to state member banks under 12 U.S.C. 335.
    (c) Authorization. The Board has determined that a state member bank 
may purchase and hold for its own account stock of any investment 
company (including a money market mutual fund), subject to the following 
conditions:
    (1) Investment authority of the investment company. The investment 
company may have authority, as stated in the investment objectives of 
its current prospectus, to invest in the following securities and no 
others: United States Treasury and agency obligations, general 
obligations of states and municipalities, corporate debt securities, and 
any other securities designated in 12 U.S.C. 24(7) as eligible for 
purchase by national banks that state member banks are authorized to 
purchase directly. The investment company may have authority, as stated 
in the investment objectives of its current prospectus, to enter into 
futures, forwards and option contracts relating to the above securities 
when those futures, forwards and option contracts are to be used solely 
to reduce interest rate risk and not for speculation. The investment 
company may also have authority, as stated in the investment objectives 
of its current prospectus, to enter into repurchase agreements and 
securities lending contracts relating to the securities designated above 
if those contracts comply with policy statements adopted by the Federal 
Financial Institutions Examination Council. See 45 FR 18120 (Mar. 20, 
1980) and Fed. Res. Reg. Svc. Paras.  3-1535, 3-1579.1, and 3-1579.5.
    (2) Limits on investment. (i) If the portfolio of the investment 
company in which a state member bank may invest consists solely of 
obligations that the bank could purchase without restriction as to 
amount, or solely of those obligations and futures, forwards, options, 
repurchase agreements and securities lending contracts relating solely 
to those obligations, no express limit is placed on investment.
    (ii) If the portfolio of the investment company in which a state 
member bank may invest includes any securities that the bank could 
purchase subject to a restriction as to amount, the pro-rata share of 
holdings of such securities of an issuer indirectly held by a state 
member bank through its holdings of investment company stock (including 
money market mutual funds), when aggregated with the direct investment 
in securities of that issuer by the bank, must not exceed the investment 
limit.
    (3) Registration of publicly offered investment company stock. 
Except as provided in section (c)(4), investment company stock purchased 
by a state member bank must be of an investment company registered with 
the Securities and Exchange Commission under the Investment Company Act 
of 1940 and the Securities Act of 1933.
    (4) Privately offered fund. The stock purchased may be of a 
privately offered fund if the sponsor of the fund is a subsidiary of a 
bank holding company, and if the stock of the fund is held solely

[[Page 224]]

by subsidiaries of the bank holding company.
    (5) Proportionate and undivided interest. The stock purchased must 
represent an equitable, equal, and proportionate undivided interest in 
the underlying assets of the investment company.
    (6) Stockholders shielded from liability. The stockholders must be 
shielded from personal liability for acts and obligations of the 
investment company.
    (7) Bank investment policy and procedures. (i) The investment policy 
of the bank, as formally approved by its board of directors, must 
specifically provide for investment in investment company stock. The 
investment policy must establish procedures, standards, and controls 
that relate specifically to investments in investment company stock.
    (ii) Prior approval of the board of directors of the bank must be 
obtained for investment in a specific investment company and recorded in 
the official board minutes.
    (iii) Unless the investment objectives of the investment companies, 
as stated in their current prospectuses, restrict investments to those 
obligations that the state member bank could purchase without 
restriction as to amount, the bank must review its holdings of 
investment company stock at least quarterly to ensure that investments 
have been made in accordance with established bank policies and legal 
requirements.
    (8) Reporting and accounting. Reporting of holdings of investment 
company stock must be consistent with established standards for 
``marketable equity securities.'' Accordingly, the instructions for the 
quarterly Reports of Condition and Income and the requirements of the 
Financial Accounting Standards Board Statement No. 12 must be followed.
    (i) Holdings of investment campany stock must be reported as ``All 
other'' securities on Schedule RC-B, Item 4(b) on the quarterly Reports 
of Condition, unless otherwise directed.
    (ii) In no case may the carrying value of investment stock be 
increased above aggregate cost as a result of net unrealized gains. 
Holdings of investment company stock must be reported in the Reports of 
Condition at the lower of their aggregate cost or aggregate market 
value, determined as of the report date.
    (iii) Sales fees, both ``front end load'' and ``deferred 
contingency,'' must be deducted in calculating market value.
    (iv) Any net unrealized loss or increase in a previously recorded 
net unrealized loss must be charged directly against ``undivided profits 
and capital reserves.'' Subsequent reductions of any net unrealized loss 
must be credited directly to ``undivided profits and capital reserves.''
    (v) A loss on an individual investment that is other than temporary, 
as that term is used for purposes of FASB Statement No. 12, must be 
charged to ``noninterest expense'' on Schedule RI of the Income 
Statement.
    (d) Evaluation of investment risk. Investments in stock of 
investment companies and direct investments in debt securities are not 
treated the same for accounting, tax, and other purposes. Consequently, 
state member banks should evaluate investments in investment company 
stock in light of these differences and give special attention to the 
risks these differences impose.\1\
---------------------------------------------------------------------------


    \1\ The Board has issued a cautionary letter in conjunction with 
this interpretation. This letter recommends that a state member bank 
avoid undue concentration of investments in the stock of any fund or 
family of funds and apprises state member banks of the accounting and 
tax treatment of holding investment company stock. See Fed. Res. Reg. 
Svc. para. 3-416.16.
---------------------------------------------------------------------------

    (e) No effect on state law. This interpretation shall not be 
construed as exempting a state member bank from any provision of state 
law.
[54 FR 7181 Feb 17, 1989; 54 FR 10482, Mar. 13, 1989]



Sec. 208.125  Necessity for Board approval of stock dividend by State member bank.

    (a) The opinion of the Board of Governors has been requested as to 
whether section 5199(b) of the Revised Statutes of the United States, as 
amended September 8, 1959 (12 U.S.C. 60), requires the Board's approval 
for the declaration of a stock dividend by a State member bank in an 
amount which would exceed the total of net profits

[[Page 225]]

for the present year combined with the retained net profits of the 
preceding 2 years. This statute is made applicable to State member banks 
by the sixth paragraph of section 9 of the Federal Reserve Act (12 
U.S.C. 324).
    (b) The purpose of this provision is to prevent the depletion of the 
capital structure of a bank by the payment of excessive dividends. Since 
a stock dividend does not result in the distribution of cash or assets, 
the Board does not consider the term dividend in this statute as 
including stock dividends. Consequently, the Board's approval for the 
declaration of a stock dividend is not required.

(12 U.S.C. 60)
[33 FR 9866, July 10, 1968. Redesignated at 55 FR 52987, Dec. 26, 1990]



Sec. 208.126  Payment of dividends; effect of net losses.

    (a) Section 5199(b) of the Revised Statutes (12 U.S.C. 60), as 
amended in 1959: Provides, That:

    The approval of the Comptroller of the Currency shall be required if 
the total of all dividends declared by [a national bank] in any calendar 
year shall exceed the total of its net profits of that year combined 
with its retained net profits of the preceding 2 years * * *


Under the sixth paragraph of section 9 of the Federal Reserve Act (12 
U.S.C. 324), member State banks are required ``to conform to the 
provisions of section 5199(b) * * * with respect to the payment of 
dividends'', except that the approval of the Board of Governors is 
required in lieu of the approval of the Comptroller.
    (b) The question has arisen whether it is necessary in determining 
whether a bank's dividends in a particular year ``exceed the total of 
its net profits of that year combined with its retained net profits of 
the preceding two years'', to take into consideration the amount of a 
net loss in the current year or in one or both of the preceding 2 years.
    (c) The purpose of the 1959 amendment of section 5199(b) was to 
prevent a bank from paying a dividend (except with supervisory approval) 
unless it has on hand, from operations during the 3 latest years, 
sufficient net profits to cover the proposed dividend. If a net loss for 
one or more of those 3 years was disregarded in making the calculation 
called for by section 5199(b), a member State bank could pay dividends, 
without the approval of the Board of Governors, even though the 
aggregate results of the 3 latest years' operations was a net deficit. 
This was precisely the sort of situation in which Congress intended to 
prevent the payment of a dividend unless the supervisory authority was 
satisfied that special circumstances justified the proposed dividend.
    (d) Accordingly, it is the position of the Board that, in making the 
calculation required by section 5199(b), it is necessary to take into 
consideration the actual results of operations during the current year 
and the 2 preceding years, whether the figures for those years are plus 
or minus figures. For example, if a bank had
    (1) Retained net profits of $30,000 from 1959;
    (2) A net loss of $40,000 in 1960 (and dividends of $10,000 were 
paid in that year, with the Board's approval); and
    (3) Net profits of $20,000 in 1961,

It could not pay any dividend in 1961 without the Board's approval, 
since the calculation required by section 5199(b) would result in a zero 
figure ($30,000 minus $50,000 plus $20,000). It will be noted that, for 
the purposes of section 5199, any dividends paid in a loss year must be 
included in the ``net loss'' for that year, just as dividends paid in a 
profitable year must be deducted from ``net profits'' in calculating 
``retained net profits''.

(12 U.S.C. 60)
[33 FR 9866, July 10, 1968. Redesignated at 55 FR 52987, Dec. 26, 1990]



Sec. 208.127  Payment of dividends exceeding net profits to date of declaration.

    (a) Section 5199(b) of the Revised Statutes of the United States (12 
U.S.C. 60) and the sixth paragraph of section 9 of the Federal Reserve 
Act (12 U.S.C. 324), provide in effect that ``the approval of the 
Comptroller of the Currency (or the Board of Governors) shall be 
required if the total of all dividends declared by such association (a 
national bank or a member State bank) in any calendar year shall exceed 
the

[[Page 226]]

total of its net profits of that year combined with its retained net 
profits of the preceding two years.''
    (b) The question has been presented whether the Board's approval 
must be obtained when the amount of a dividend proposed to be declared 
by a member State bank, prior to the end of the calendar year, would 
exceed the total of the bank's net profits up to the date of the 
declaration, combined with its retained net profits of the preceding 2 
years.
    (c) If the question related only to the literal meaning of words, 
divorced from the statute's underlying purpose and from the factual 
situations to which it relates, it might be contended that since the 
statute refers to ``all dividends declared * * * in any calendar year'' 
and ``the total of its net profits of that year'', its applicability 
cannot be determined until the calendar year is completed. As explained 
below, however, such an interpretation is not required by the language 
of the statute and would substantially defeat its purpose, as revealed 
by the legislative history; and consequently it is believed that the 
statute should be construed as relating to dividends declared, and to 
net profits, in the calendar year up to the date of such declaration.
    (d) The purpose of the statute was described as follows by the 
Senate Banking Committee:

    This provision is designed to restrict the payment of dividends * * 
* where such payments would result in dissipating needed capital funds. 
This provision strengthens the regulatory authority of the Comptroller 
[and the Board of Governors]. Under it, he will be able to prevent the 
declaration of dividends which are not justified by current and recent 
accumulated earnings, and which would result in a weakened and 
undercapitalized bank and violate safe and sound banking practice.

(S. Rep. No. 730, 86th Cong. (Aug. 19, 1959), pp. 6-7)

    (1) It seems that Congress had in mind the following test: At the 
time the dividend is declared, does the bank have available, from 
profits of the current calendar year and the 2 preceding calendar years, 
enough profits to cover the dividend? If not, the dividend may not be 
declared and paid unless the Comptroller or the Board of Governors 
specifically approves, in view of the circumstances of the particular 
case.
    (2) Bearing in mind the Senate Committee's reference to 
``dissipating needed capital funds,'' it is obvious that the danger that 
a proposed dividend would unduly weaken a bank's capital structure is 
just as great if the dividend is declared in June as if it is declared 
in December. If a bank does not have profits on hand sufficient to cover 
a proposed dividend, the fact that the declaration is made in 1 month 
rather than in another has little or no bearing on the extent to which 
payment of the dividend may unduly diminish the capital ``cushion'' on 
which depend the bank's continued existence and the safety of its 
depositors.
    (e) An illustration may be helpful. For simplicity, let us assume 
that a member State bank opened for business on January 1, 1959, with a 
capital structure of $300,000, as required by the supervisory 
authorities. The bank had no net profit in 1959 or 1960. Up to June 30, 
1961, it still has no net profits, but nevertheless the directors 
declare a dividend of $20,000 on that date. The bank's capital structure 
is thereby reduced from $300,000 to $280,000. It seems that this was 
precisely what Congress intended should not happen unless the Board of 
Governors approved the dividend, for adequate reasons. An undesirable 
situation would exist, and the Congressional purpose would be defeated, 
if such a weakening of the bank's capital structure were permissible if 
the dividend was declared and paid (without supervisory approval) in 
June, whereas the same action would involve a violation of the statute 
if the dividend was declared and paid, instead, in December. This might 
actually mean that no violation of section 5199(b) could occur except 
with respect to end-of-year dividends--unless, perhaps, it could be 
established that the bank's directors, when they declared the dividend 
earlier in the year, knew (or had reason to believe) that the bank's net 
profits for the entire year would not be sufficient.
    (f) The statutory reference to ``all dividends declared * * * in any 
calendar year'' can be interpreted, even from the viewpoint of literal 
meaning, as referring to dividends declared in a

[[Page 227]]

calendar year up to the date of declaration. Particularly because the 
clear Congressional purpose would otherwise be largely defeated, it is 
concluded that this is the correct interpretation and that, 
consequently, the declaration by the member State bank, without the 
Board's approval, of a dividend in the amount of $20,000 would be in 
violation of the applicable statutes, since the amount of that dividend 
would exceed ``the total of (the bank's) net profits of that year 
combined with its retained net profits of the preceding two years.''

(12 U.S.C. 60)
[33 FR 9866, July 10, 1968. Redesignated at 55 FR 52987, Dec. 26, 1990]



Sec. 208.128  Commodity- or equity-linked transactions.

    (a) State-chartered banks that are members of the Federal Reserve 
System are required to obtain the approval of the Board under Regulation 
H (Membership of State Banking Institutions in the Federal Reserve 
System) before permitting any change to be made in the general character 
of their business or in the scope of the corporate powers they exercised 
at the time of admission to membership. The Board has considered whether 
engaging in transactions linked to commodity or equity security prices 
or indices would represent a change in the general character of the 
business of a state member bank.
    (b) Banking organizations have developed a number of commodity- or 
equity-linked transactions in which a portion of the return is linked to 
the price of a particular commodity or equity security or to an index of 
such prices. These transactions have been offered in a variety of forms, 
including commodity-indexed deposits, loans, debt issues, and derivative 
products, such as forwards, options, and swaps. In these transactions, 
the interest, principal, or both, or payment streams in the case of 
swaps, are linked to the price of a commodity. In addition, banks are 
also entering into exchange-traded commodity or stock-index futures and 
options in order to hedge the exposure inherent in these transactions. 
These types of transactions have been linked to a variety of 
commodities, including gold, oil, aluminum, and copper, as well as 
individual securities and stock indices.
    (c) With the exception of gold, silver, and, in some cases, 
platinum, banks are not empowered to purchase or hold the commodities or 
equity securities that underlie these transactions. Although commodity-
linked transactions settle only in cash, they effectively expose banks 
to commodity or equity market price risks. Thus, linking payments to 
commodities or equities may present risks with which banks generally are 
not familiar, and the inability of the bank to purchase the commodity or 
equity security to which a transaction is linked may increase the 
difficulty of hedging the exposure created by such transactions.
    (d) The Board has determined that engaging in transactions linked to 
commodities or securities that a state member bank does not have the 
authority to purchase and hold directly should generally be considered a 
change in the character of the bank's business unless the transactions 
are entered into on a perfectly matched basis.\1\ State member banks 
that wish to engage in commodity- or equity-linked transactions that are 
considered to be a change in the general character of their business 
should obtain Board approval before initiating these transactions or, in 
the case of activities commenced prior to the adoption of this 
interpretation, to continue such activities. Applications to continue 
such activities should be submitted on or before February 3, 1992.
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    \1\The term perfectly matched, as used in this interpretation refers 
to transactions that are entered into on a matched basis, that is, 
offsetting transactions where the counterparties for both transactions 
have been found before the bank enters into either transaction and the 
transactions are consummated on the same day. Offsetting transactions 
include transactions that have a price differential to provide the bank 
with its usual and customary fee or commission for its services. The 
exemption from prior approval for perfectly matched transactions would 
include mirror image equity swaps executed by a state member bank with 
any affiliate that is authorized under Regulation K to engage in equity 
swaps.
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    (e) Transactions linked to securities or monetary metals that a 
state member bank is authorized to purchase and

[[Page 228]]

hold directly will not be considered to be a change in the general 
nature of the bank's business, and approval will not be required.\2\ 
Additionally, approval will not be required for a state member bank to 
offer loan or deposit contracts in which only the interest portion of 
the return is linked to a commodity or security even if the bank is not 
authorized to hold the commodity or security.
---------------------------------------------------------------------------


    \2\Gold and silver are the only commodities that banks generally 
have authority to purchase. In states where banks have authority to deal 
in platinum, transactions linked to platinum will not be considered a 
change in the general nature of the business of a bank.
---------------------------------------------------------------------------

    (f) Applications to engage in commodity-related activities should 
outline the types of transactions and scope of activities that the bank 
plans to undertake. The application also should demonstrate that the 
bank has the expertise to engage in such transactions and has developed 
adequate policies and controls to govern the conduct of these activities 
and to monitor the associated risks.
    (g) Recent revisions to Regulation K (International Banking 
Operations) permit bank holding company subsidiaries, Edge and agreement 
corporations, and member banks to act as principal or agent outside of 
the United States in swap transactions, subject to any limitations 
applicable to state member banks under Regulation H. Banking 
organizations that wish to engage in swap transactions based on 
commodities that the organizations do not have the authority to purchase 
directly, therefore, must submit applications under Regulation K in 
order to engage in such transactions. Because Regulation K provides 
separate authority to engage outside of the United States in swap 
transactions based on equity securities or indices, approval of these 
transactions is not required.
[56 FR 63407, Dec. 4, 1991]



Sec. 208.129  Obligations concerning institutional customers.

    (a) As a result of broadened authority provided by the Government 
Securities Act Amendments of 1993 (15 U.S.C. 78o-3 and 78o-5), the Board 
is adopting sales practice rules for the government securities market, a 
market with a particularly broad institutional component. Accordingly, 
the Board believes it is appropriate to provide further guidance to 
banks on their suitability obligations when making recommendations to 
institutional customers.
    (b) The Board's Suitability Rule, Sec. 208.25(d), is fundamental to 
fair dealing and is intended to promote ethical sales practices and high 
standards of professional conduct. Banks'' responsibilities include 
having a reasonable basis for recommending a particular security or 
strategy, as well as having reasonable grounds for believing the 
recommendation is suitable for the customer to whom it is made. Banks 
are expected to meet the same high standards of competence, 
professionalism, and good faith regardless of the financial 
circumstances of the customer.
    (c) In recommending to a customer the purchase, sale, or exchange of 
any government security, the bank shall have reasonable grounds for 
believing that the recommendation is suitable for the customer upon the 
basis of the facts, if any, disclosed by the customer as to the 
customer's other security holdings and financial situation and needs.
    (d) The interpretation in this section concerns only the manner in 
which a bank determines that a recommendation is suitable for a 
particular institutional customer. The manner in which a bank fulfills 
this suitability obligation will vary, depending on the nature of the 
customer and the specific transaction. Accordingly, the interpretation 
in this section deals only with guidance regarding how a bank may 
fulfill customer-specific suitability obligations under 
Sec. 208.25(d).1
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    \1\ The interpretation in this section does not address the 
obligation related to suitability that requires that a bank have ``* * * 
a `reasonable basis' to believe that the recommendation could be 
suitable for at least some customers.'' In the Matter of the Application 
of F.J. Kaufman and Company of Virginia and Frederick J. Kaufman, Jr., 
50 SEC 164 (1989).
---------------------------------------------------------------------------

    (e) While it is difficult to define in advance the scope of a bank's 
suitability obligation with respect to a specific institutional customer 
transaction recommended by a bank, the

[[Page 229]]

Board has identified certain factors that may be relevant when 
considering compliance with Sec. 208.25(d). These factors are not 
intended to be requirements or the only factors to be considered but are 
offered merely as guidance in determining the scope of a bank's 
suitability obligations.
    (f) The two most important considerations in determining the scope 
of a bank's suitability obligations in making recommendations to an 
institutional customer are the customer's capability to evaluate 
investment risk independently and the extent to which the customer is 
exercising independent judgement in evaluating a bank's recommendation. 
A bank must determine, based on the information available to it, the 
customer's capability to evaluate investment risk. In some cases, the 
bank may conclude that the customer is not capable of making independent 
investment decisions in general. In other cases, the institutional 
customer may have general capability, but may not be able to understand 
a particular type of instrument or its risk. This is more likely to 
arise with relatively new types of instruments, or those with 
significantly different risk or volatility characteristics than other 
investments generally made by the institution. If a customer is either 
generally not capable of evaluating investment risk or lacks sufficient 
capability to evaluate the particular product, the scope of a bank's 
customer-specific obligations under Sec. 208.25(d) would not be 
diminished by the fact that the bank was dealing with an institutional 
customer. On the other hand, the fact that a customer initially needed 
help understanding a potential investment need not necessarily imply 
that the customer did not ultimately develop an understanding and make 
an independent investment decision.
    (g) A bank may conclude that a customer is exercising independent 
judgement if the customer's investment decision will be based on its own 
independent assessment of the opportunities and risks presented by a 
potential investment, market factors and other investment 
considerations. Where the bank has reasonable grounds for concluding 
that the institutional customer is making independent investment 
decisions and is capable of independently evaluating investment risk, 
then a bank's obligations under Sec. 208.25(d) for a particular customer 
are fulfilled.2 Where a customer has delegated decision-
making authority to an agent, such as an investment advisor or a bank 
trust department, the interpretation in this section shall be applied to 
the agent.
---------------------------------------------------------------------------


    \2\ See footnote 1 in paragraph (d) of this section.
---------------------------------------------------------------------------

    (h) A determination of capability to evaluate investment risk 
independently will depend on an examination of the customer's capability 
to make its own investment decisions, including the resources available 
to the customer to make informed decisions. Relevant considerations 
could include:
    (1) The use of one or more consultants, investment advisers, or bank 
trust departments;
    (2) The general level of experience of the institutional customer in 
financial markets and specific experience with the type of instruments 
under consideration;
    (3) The customer's ability to understand the economic features of 
the security involved;
    (4) The customer's ability to independently evaluate how market 
developments would affect the security; and
    (5) The complexity of the security or securities involved.
    (i) A determination that a customer is making independent investment 
decisions will depend on the nature of the relationship that exists 
between the bank and the customer. Relevant considerations could 
include:
    (1) Any written or oral understanding that exists between the bank 
and the customer regarding the nature of the relationship between the 
bank and the customer and the services to be rendered by the bank;
    (2) The presence or absence of a pattern of acceptance of the bank's 
recommendations;
    (3) The use by the customer of ideas, suggestions, market views and 
information obtained from other government securities brokers or dealers 
or market professionals, particularly those relating to the same type of 
securities; and

[[Page 230]]

    (4) The extent to which the bank has received from the customer 
current comprehensive portfolio information in connection with 
discussing recommended transactions or has not been provided important 
information regarding its portfolio or investment objectives.
    (j) Banks are reminded that these factors are merely guidelines that 
will be utilized to determine whether a bank has fulfilled its 
suitability obligation with respect to a specific institutional customer 
transaction and that the inclusion or absence of any of these factors is 
not dispositive of the determination of suitability. Such a 
determination can only be made on a case-by-case basis taking into 
consideration all the facts and circumstances of a particular bank/
customer relationship, assessed in the context of a particular 
transaction.
    (k) For purposes of the interpretation in this section, an 
institutional customer shall be any entity other than a natural person. 
In determining the applicability of the interpretation in this section 
to an institutional customer, the Board will consider the dollar value 
of the securities that the institutional customer has in its portfolio 
and/or under management. While the interpretation in this section is 
potentially applicable to any institutional customer, the guidance 
contained in this section is more appropriately applied to an 
institutional customer with at least $10 million invested in securities 
in the aggregate in its portfolio and/or under management.
[Reg. H, 62 FR 13285, Mar. 19, 1997, as amended at 62 FR 15601, Apr. 2, 
1997]

  Appendix A to Part 208--Capital Adequacy Guidelines for State Member 
                        Banks: 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 state member banks.\1\ The principal objectives of this 
measure are to: (i) Make regulatory capital requirements more sensitive 
to differences in risk profiles among banks; (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 
banks throughout the world.\2\
---------------------------------------------------------------------------


    \1\ Supervisory ratios that relate capital to total assets for state 
member banks are outlined in appendix B of this part and in appendix B 
to part 225 of the Federal Reserve's Regulation Y, 12 CFR part 225.

    \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.
---------------------------------------------------------------------------

    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. A 
bank'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\ Banks 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 banks 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 banks 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 
banks 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

[[Page 231]]

1992. These interim standards and transitional arrangements are set 
forth in section IV.
    The risk-based guidelines apply to all state member banks on a 
consolidated basis. They are to be used in the examination 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 state member bank, the Federal Reserve will take into account the 
bank'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 framework incorporates risks arising from traditional banking 
activities as well as risks arising from nontraditional activities. The 
risk-based ratio does not, however, incorporate other factors that can 
affect an institution's financial condition. These factors include 
overall interest-rate exposure; liquidity, funding and market risks; the 
quality and level of earnings; investment, loan portfolio, and other 
concentrations of credit; certain risks arising from nontraditional 
activities; the quality of loans and investments; the effectiveness of 
loan and investment policies; and management's overall ability to 
monitor and control financial and operating risks, including the risks 
presented by concentrations of credit and nontraditional activities.
    In addition to evaluating capital ratios, an overall assessment of 
capital adequacy must take account of those factors, including, in 
particular, the level and severity of problem and classified assets as 
well as a bank's exposure to declines in the economic value of its 
capital due to changes in interest rates. For this reason, the final 
supervisory judgment on a bank's capital adequacy may differ 
significantly from conclusions that might be drawn solely from the level 
of its 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, banks generally are expected to operate well above the 
minimum risk-based ratios. In particular, banks 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 well 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. Banks 
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

    A bank'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 covenants, 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 a bank's overall 
capital structure. Consequently, a bank 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 institution's capital 
base.\4\
---------------------------------------------------------------------------


    \4\ 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.
---------------------------------------------------------------------------

                 A. The Components of Qualifying Capital

    1. Core capital elements (Tier 1 capital). The Tier 1 component of a 
bank'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) Minority interest in the equity accounts of consolidated 
subsidiaries.

[[Page 232]]

    Tier 1 capital is generally defined as the sum of core capital 
elements \5\ less goodwill and other intangible assets required to be 
deducted in accordance with section II.B.1.b. of this appendix.
---------------------------------------------------------------------------


    \5\ 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 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.
    The only form of perpetual preferred stock that state member banks 
may consider as an element of Tier 1 capital is noncumulative perpetual 
preferred. While the guidelines allow for the inclusion of noncumulative 
perpetual preferred stock in Tier 1, it is desirable from a supervisory 
standpoint that voting common stockholders' equity remain the dominant 
form of Tier 1 capital. Thus, state member banks should avoid 
overreliance on preferred stock or non-voting equity elements within 
Tier 1.
---------------------------------------------------------------------------


    \6\ [Reserved]
---------------------------------------------------------------------------

    Perpetual preferred stock in which the dividend is reset 
periodically based, in whole or in part, upon the bank'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 noncumulative 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.
---------------------------------------------------------------------------

    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, banks are expected to avoid using minority interest 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 a bank'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) 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 a 
bank'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\
---------------------------------------------------------------------------


    \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 bank. 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 bank'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 state member banks.

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

[[Page 233]]

    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 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 bank 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\
---------------------------------------------------------------------------


    \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 bank.
---------------------------------------------------------------------------

    c. Hybrid capital instruments 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 and must also be subordinated to 
claims of 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.
    Mandatory convertible debt securities in the form of equity contract 
notes that meet the criteria set forth in 12 CFR part 225, appendix B, 
also qualify as unlimited elements of Tier 2 capital. In accordance with 
that appendix, equity commitment notes issued prior to May 15, 1985 also 
qualify for inclusion in Tier 2.
    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 a bank'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. (If the holder has the option to require the 
issuer to redeem, repay, or repurchase the

[[Page 234]]

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 bank.)
    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. To qualify as capital in banks, debt must 
be subordinated to general creditors and claims of depositors. 
Consistent with current regulatory requirements, if a state member bank 
wishes to redeem subordinated debt before the stated maturity, it must 
receive prior approval of the Federal Reserve.
    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.\12\
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    \12\ 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.
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    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 banking agencies 
generally have not included unrealized asset appreciation in capital 
ratio calculations, although they have long taken such values into 
account as a separate factor in assessing the overall financial strength 
of a bank.
    ii. Consistent with long-standing supervisory practice, the excess 
of market values over book values for assets held by state member banks 
will generally not be recognized in supplementary capital or in the 
calculation of the risk-based capital ratio. However, all banks 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 a bank's capital for the purpose of 
calculating the risk-based capital ratio.\13\ These assets include:
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    \13\ 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.
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    (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, on a case-by-
case basis, investments in other designated subsidiaries or associated 
companies at the discretion of the Federal Reserve--deducted from total 
capital components.
    (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 in 
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. State member banks generally have not been allowed 
to include goodwill in regulatory capital under current supervisory 
policies. Consistent with this policy, all goodwill in state member 
banks will be deducted from Tier 1 capital.
    b. Other intangible assets. i. The only types of identifiable 
intangible assets that may be included in, that is, not deducted from, a 
bank's capital are readily marketable mortgage servicing rights and 
purchased credit card relationships, provided that, in 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.14
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    \14\ 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 a bank'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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[[Page 235]]

    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 a bank 
is operating in an unsafe and unsound manner because of over-reliance on 
intangible assets in tier 1 capital.
    iii. Banks 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 examination process. In addition, the Federal Reserve may 
require, on a case-by-case basis, an independent valuation of a bank's 
intangible assets.
    v. The amount of mortgage servicing rights and purchased credit card 
relationships that a bank 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 in the commercial 
bank Consolidated Reports of Condition and Income (Call Reports). 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 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's 
capital ratios for supervisory and applications purposes. However, in 
making an overall assessment of a bank's capital adequacy for 
applications purposes, the Board may, if it deems appropriate, take into 
account the quality and composition of a bank's capital, together with 
the quality and value of its tangible and intangible assets.
    vii. Consistent with long-standing Board policy, banks 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. The aggregate amount of 
investments in banking or finance subsidiaries \15\ whose financial 
statements are not consolidated for accounting or bank regulatory 
reporting purposes will be deducted from a bank's total capital 
components.\16\ Generally, investments for this purpose are defined as 
equity and debt capital investments and any other instruments that are 
deemed to be capital in the particular subsidiary.
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    \15\ 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.

    \16\ 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 Call 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 a 
bank's capital. Rather, such advances generally will be included in the 
bank'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 bank's capital if, in the judgment of 
the Federal Reserve, the risks

[[Page 236]]

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 bank'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 bank 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 bank.
    The Federal Reserve may, on a case-by-case basis, also deduct from a 
bank's capital, investments in certain other subsidiaries in order to 
determine if the consolidated bank meets minimum supervisory capital 
requirements without reliance on the resources invested in such 
subsidiaries.
    The Federal Reserve will not automatically deduct investments in 
other consolidated subsidiaries or investments in joint ventures and 
associated companies.\17\ Nonetheless, the resources invested in these 
entities, like investments in unconsolidated banking and finance 
subsidiaries, support assets not consolidated with the rest of the 
bank's activities and, therefore, may not be generally available to 
support additional leverage or absorb losses elsewhere in the bank. 
Moreover, experience has shown that banks 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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    \17\ The definition of such entities is contained in the 
instructions to the commercial bank Call Report. Under regulatory 
reporting procedures, associated companies and joint ventures generally 
are defined as companies in which the bank 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 banks and, on a case-by-case 
basis may, for risk-based capital purposes, deduct such investments from 
total capital components, apply an appropriate risk-weighted capital 
charge against the bank's proportionate share of the assets of its 
associated companies, require a line-by-line consolidation of the entity 
(in the event that the bank's control over the entity makes it the 
functional equivalent of a subsidiary), or otherwise require the bank 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 bank has significant influence over the financial or 
managerial policies or operations of the subsidiary, joint venture, or 
associated company;
    (2) The bank 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 bank.
    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) \18\ will be deducted from a bank's total capital components 
for the purpose of determining the numerator of the risk-based capital 
ratio.
---------------------------------------------------------------------------


    \18\ See 12 CFR part 225, appendix A for instruments that qualify as 
Tier 1 and Tier 2 capital for bank holding companies.
---------------------------------------------------------------------------

    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 banks to deduct non-
reciprocal holdings of such capital instruments.\19\
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    \19\ 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.
---------------------------------------------------------------------------

    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 bank's capital may not exceed the lesser of: (i) the amount of 
these deferred tax assets that the bank is expected to realize within 
one year of the calendar quarter-end date,

[[Page 237]]

based on its projections of future taxable income for that 
year,20 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 amounts is to 
be deducted from a bank'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, but, for banks that have a parent, this 
may not exceed the amount the bank could reasonably expect its parent to 
refund.
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    \20\ 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 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 
state member banks 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 bank'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.\21\
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    \21\ 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 bank'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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[[Page 238]]

    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 
the bank; securities issued or guaranteed by the central governments of 
the OECD-based group of countries\22\, U.S. Government agencies, or U.S. 
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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    \22\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 a bank's loan 
portfolio--which, in turn, would affect the overall supervisory 
assessment of the bank'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,\23\ is

[[Page 239]]

treated as essentially an indirect holding of the underlying assets, and 
assigned to the same risk category as the underlying assets, 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 examination 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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    \23\ 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 category, the entire mortgage-
backed security is generally assigned to the category appropriate to the 
highest risk-weighted asset underlying the issue. Thus, in this example, 
the security would receive the 50 percent risk weight appropriate to the 
privately-issued pass-through securities.
---------------------------------------------------------------------------

    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 subordinate 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.\24\
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    \24\ Through year-end 1992, remaining, rather than original, 
maturity may be used for determining the maturity of commitments.
---------------------------------------------------------------------------

    5. Small Business Loans and Leases on Personal Property Transferred 
with Recourse. a. Notwithstanding other provisions of this appendix A, a 
qualifying bank 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 bank must establish pursuant to 
GAAP a non-capital reserve sufficient to meet the bank'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 bank is qualifying if it meets 
the criteria set forth in the Board's prompt corrective action 
regulation (12 CFR 208.30) for well capitalized or, by order of the 
Board, adequately capitalized. For purposes of determining whether a 
bank meets the criteria, its capital ratios must be calculated without 
regard to the preferential 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 bank on transfers of small business obligations receiving the 
preferential capital treatment cannot exceed 15 percent of the bank's 
total risk-based capital. By order, the Board may approve a higher 
limit.
    c. If a bank 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 bank was qualifying and did 
not exceed the capital limit.
    d. The risk-based capital ratios of the bank shall be calculated 
without regard to the preferential capital treatment for transfers of 
small business obligations with recourse specified in section III.B.5.a. 
of this appendix A for purposes of:
    (i) Determining whether a bank is adequately capitalized, 
undercapitalized, significantly undercapitalized, or critically 
undercapitalized under prompt corrective action (12 CFR 208.33(b)); and

[[Page 240]]

    (ii) Reclassifying a well capitalized bank to adequately capitalized 
and requiring an adequately capitalized bank to comply with certain 
mandatory or discretionary supervisory actions as if the bank were in 
the next lower prompt corrective action capital category (12 CFR 
208.33(c)).

                             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 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 the bank or in transit and 
gold bullion held in the bank's own vaults or in another bank's vaults 
on an allocated basis, to the extent it is offset by gold bullion 
liabilities.\25\ The category 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 \26\ 
of the OECD countries and U.S. Government agencies,\27\ 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 the bank has 
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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    \25\ All other holdings of bullion are assigned to the 100 percent 
risk category.

    \26\ 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 the 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 that do not belong to the OECD-based 
group countries.

    \27\ 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. 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 bank 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.
    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 \28\ by, U.S. depository institutions \29\ and 
foreign banks \30\; and long-term

[[Page 241]]

claims on, and the portions of long-term claims that are guaranteed by, 
U.S. depository institutions and OECD banks.\31\
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    \28\ 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 other U.S. depository institutions or foreign 
banks.

    \29\ 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 of 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.

    \30\ 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.

    \31\ 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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    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 the bank has 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\32\ 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.\33\
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    \32\ 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.

    \33\ 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.
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    This category also includes the portions of claims (including 
repurchase transactions) collateralized by cash on deposit in the bank 
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 \34\ on 1- to 4-family residential properties, 
either owner-occupied or rented, or on multifamily residential 
properties,\35\ that meet certain

[[Page 242]]

criteria.\36\ Loans included in this category must have been made in 
accordance with prudent underwriting standards;\37\ 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 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
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    \34\ If a bank holds the first and junior liens(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.

    \35\ Loans that qualify as loans secured by 1- to 4-family 
residential properties or multifamily residential properties are listed 
in the instructions to the commercial bank Call 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.
    The instructions to the Call Report also discuss the treatment of 
loans, including multifamily housing loans, that are sold subject to a 
pro rata loss sharing arrangement. Such an arrangement should be treated 
by the selling bank as sold (and excluded from balance sheet assets) to 
the extent that the sales agreement provides for the purchaser of the 
loan to share in any loss incurred on the loan on a pro rata basis with 
the selling bank. In such a transaction, from the standpoint of the 
selling bank, the portion of the loan that is treated as sold is not 
subject to the risk-based capital standards. In connection with sales of 
multifamily housing loans in which the purchaser of a loan shares in any 
loss incurred on the loan with the selling institution on other than a 
pro rata basis, these other loss sharing arrangements are taken into 
account for purposes of determining the extent to which such loans are 
treated by the selling bank as sold (and excluded from balance sheet 
assets) under the risk-based capital framework in the same manner as 
prescribed for reporting purposes in the instructions to the Call 
Report.

    \36\ 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.

    \37\ 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 bank'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, or guaranteed by, non-
OECD banks, and all claims on non-OECD central governments that entail 
some degree of transfer risk.38

[[Page 243]]

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 
39; 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.
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    \38\ Such assets include all non-local currency claims on, or 
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 the bank.

    \39\ 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.
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    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 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.40 Attachment IV 
sets forth the conversion factors for various types of off-balance sheet 
items.
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    \40\ 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 bank 
that the underlying account party (obligor) will repay its obligation to 
the originating, or issuing, institution.\41\ (Standby letters of credit 
that are performance-related are discussed below and have a credit 
conversion factor of 50 percent.)
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    \41\ 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.
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    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 \42\ has been conveyed, the 
full amount is still converted at 100 percent.

[[Page 244]]

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.\43\ This 
approach recognizes that such conveyances replace the originating bank's 
exposure to the obligor with an exposure to the institutions acquiring 
the risk participations.\44\
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    \42\ That is, a participation in which the originating bank 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.

    \43\ 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.

    \44\ 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.
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    c. In the case of direct credit substitutes that take the form of a 
syndication as defined in the instructions to the commercial bank Call 
Report, that is, where each bank is obligated only for its pro rata 
share of the risk and there is no recourse to the originating bank, each 
bank 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 bank 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 bank to pay a 
third-party beneficiary when a 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 
bank 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. The risk-based capital definition of 
the sale of assets with recourse, including the sale of 1- to 4-family 
residential mortgages, is the same as the definition contained in the 
instructions to the commercial bank Call Report. 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 weight 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 (including one that is reported as a financing, i.e., 
the assets are not removed from the balance sheet) meets the criteria 
for sales treatment under GAAP, the amount of total capital required is 
equal to the maximum amount of loss possible under the recourse 
provision. If the transaction is also treated as a sale for regulatory 
reporting purposes, then the required amount of capital may be reduced 
by the balance of any associated non-capital liability account 
established pursuant to GAAP to cover estimated probable losses under 
the recourse provision. So-called ``loan strips'' (that is, short-term 
advances sold under long-term commitments without direct recourse) are 
defined in the instructions to the commercial bank Call Report and for 
risk-based capital purposes as assets sold with recourse.
    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,\45\ and partly-paid shares and securities; they do not include 
commitments to make residential mortgage loans or forward foreign 
exchange contracts.
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    \45\ Forward forward deposits accepted are treated as interest rate 
contracts.
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    i. Securities lent by a bank are treated in one of two ways, 
depending upon whether the lender is at risk of loss. If a bank, as 
agent

[[Page 245]]

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 bank 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 
bank, or, if applicable, to the independent custodian acting on the 
lender's behalf. Where a bank 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 bank, the transaction is deemed 
to be collateralized by cash on deposit in the bank 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 participations in performance 
standby letters of credit. Performance standby letters of credit 
represent obligations backing the performance of nonfinancial or 
commercial contracts or undertakings. To the extent 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,\46\ 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 
bank can, at its option, unconditionally (without cause) cancel the 
commitment,\47\ and (2) the bank 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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    \46\ 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.

    \47\ 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 bank 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 bank is obligated solely for its pro rata share, only the bank'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 bank are not deemed to be commitments, provided the bank 
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 commercial bank Call Report) if the bank 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 other U.S. depository institutions or OECD banks as 
participations in which the originating bank 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 bank 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

[[Page 246]]

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 banks 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,\4\\8\ 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 bank 
has the unconditional right to cancel the line of credit at any time, in 
accordance with applicable law.
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    \4\\8\ 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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    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. Banks 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

[[Page 247]]

                                                                                                                
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 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 bank 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 bank 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 bank'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 bank 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 bank 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.49
---------------------------------------------------------------------------


    \49\ 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 bank 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 bank's files and available for 
inspection by the Federal Reserve. The Federal Reserve may determine 
that a bank'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

[[Page 248]]

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.50
---------------------------------------------------------------------------


    \50\ 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.
    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 that 
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 mark-to-market values for other counterparties.
    iii. A bank must consistently use 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--a bank 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.51 However, the 
maximum risk weight applicable to the credit equivalent amount of such 
contracts is 50 percent.
---------------------------------------------------------------------------


    \51\ 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,

[[Page 249]]

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 bank'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 banks may be exposed, such as 
interest rate, liquidity, market or operational risks. For this reason, 
banks are generally expected to operate with capital positions above the 
minimum ratios.

    Institutions with high or inordinate levels of risk are expected to 
operate well above minimum capital standards. Banks experiencing or 
anticipating significant growth are also expected to maintain capital, 
including tangible capital positions, well above the minimum levels. For 
example, most such institutions 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 banks. In all cases, banks 
should hold capital commensurate with the level 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 bank 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 institution. In 
addition, such banks 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 state member 
banks 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 a 
bank's total capital. The Federal Reserve will continue to require banks 
to maintain reserves at levels fully sufficient to cover losses inherent 
in their loan portfolios.
    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 organization capital 
securities, or other items at the direction of the Federal Reserve. 
These 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.\52\ Initially, the risk-based 
capital

[[Page 250]]

guidelines do not establish a minimum level of capital. However, by 
year-end 1990, banks 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 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 a bank'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).
---------------------------------------------------------------------------


    \52\ 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 a bank's Tier 1 capital to be made up of 
supplementary capital elements. In particular, supplementary elements 
may constitute 25 percent of a bank'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. Goodwill must be deducted 
from the sum of a bank's permanent core capital elements (that is, 
common equity, noncumulative perpetual preferred stock, and minority 
interest in the equity of unconsolidated subsidiaries) plus 
supplementary items that may temporarily qualify as Tier 1 elements for 
the purpose of calculating Tier 1 (net of goodwill), Tier 2, and total 
capital.
---------------------------------------------------------------------------

    Through year-end 1990, banks 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 capital ratios set forth in appendix B to part 225 of the Federal 
Reserve's Regulation Y. In addition, as more fully set forth in appendix 
B to this part, banks are expected to maintain a minimum ratio of Tier 1 
capital total assets during this transition period.

[[Page 251]]



               Attachment I--Sample Calculation of Risk-Based Capital Ratio for State Member Banks              
                                                                                                                
                                                                                                                
Example of a bank 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's total capital to total assets (leverage) ratio would be: ($6,000/$100,000)=6.00%                    
                                                                                                                
To compute the bank'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's ratio of total capital to weighted risk assets (risk-based capital ratio) would be: ($6,000/        
 $80,500)=7.45%                                                                                                 

[[Page 252]]

                                                                                                                


     Attachment II--Summary Definition of Qualifying Capital for State Member Banks* Using the Year-end 1992    
                                                    Standards                                                   
----------------------------------------------------------------------------------------------------------------
                       Components                              Minimum requirements after transition period     
----------------------------------------------------------------------------------------------------------------
Core Capital (Tier 1):                                   Must equal or exceed 4% of weighted risk assets.       
    Common stockholders' equity........................  No limit.                                              
    Qualifying non-cumulative perpetual preferred stock  No limit; banks should avoid undue reliance on         
                                                          preferred stock in Tier 1.                            
    Minority interest in equity accounts of              Banks should avoid using minority interests to         
     consolidated subsidiaries.                           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 and equity contract       No limit within Tier 2.                                
     notes.                                                                                                     
    Subordinated debt and intermediate-term preferred    Subordinated debt and intermediate-term preferred stock
     stock (original weighted average maturity of 5       are limited to 50% of Tier 1; \3\ amortized for       
     years or more).                                      capital purposes as they approach maturity.           
    Revaluation reserves (equity and building).........  Not included; banks 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 subsidiaries                                                                  
    Reciprocal holdings of banking organizations'                                                               
     capital securities                                                                                         
    Other deductions (such as other subsidiaries or      On a case-by-case basis or as a matter of policy after 
     joint ventures) as determined by supervisory         formal rulemaking.                                    
     authority.                                                                                                 
    Total Capital (Tier 1+Tier 2-Deductions............  Must equal or exceed 8% of 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.                               

[[Page 253]]

                                                                                                                

 Attachment III--Summary of Risk Weights and Risk Categories for State 
                              Member Banks

                        Category 1: Zero Percent

    1. Cash (domestic and foreign) held in the bank 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 the bank has 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 bank's vaults 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 bank 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 OCED 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-OECD countries, to the extent that the 
bank has 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 bank 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.
    10. Certain privately-issued securities representing indirect 
ownership of mortgage-backed U.S. Government agency or U.S. Government-
sponsored agency securities.
    11. Investment 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.

[[Page 254]]

    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 or item 4 of Category 2; all 
claims on non-OECD state or local governments.
    4. Obligations issued by U.S. state or 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 
                           State Member Banks

                      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 bank is at risk.

                      50 Percent Conversion Factor

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

[[Page 255]]

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

    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 days or fewer 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         0.01       50,000      100,000      100,000      150,000
(2) 4-year forward foreign                                                                                      
 exchange.........................    6,000,000         0.05      300,000     -120,000            0      300,000
(3) 3-year single-currency fixed &                                                                              
 floating interest rate swap......   10,000,000        0.005       50,000      200,000      200,000      250,000
(4) 6-month oil swap..............   10,000,000         0.10    1,000,000     -250,000            0    1,000,000
(5) 7-year cross-currency floating                                                                              
 & floating interest rate swap....   20,000,000        0.075    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  ...........  ...........
(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=(.4 x Agross)+.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)+0.6 (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 amount 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.

[[Page 256]]



                                             Attachment VI--Summary                                             
----------------------------------------------------------------------------------------------------------------
                                      Transitional arrangements for State member banks                          
                                    --------------------------------------------------- Final arrangement--Year-
                                              Initial               Year-end 1990               end 1992        
----------------------------------------------------------------------------------------------------------------
1. Minimum standard of total         None....................  7.25%..................  8.0%                    
 capital to weighted risk assets.                                                                               
2. Definition of Tier 1 capital....  Common equity,            Common equity,           Common equity,          
                                      qualifying noncum.        qualifying noncum.       qualifying             
                                      perpetual preferred       perpetual preferred      noncumulative perpetual
                                      stock, minority           stock, minority          preferred stock, and   
                                      interests, plus           interests, plus          minority interest less 
                                      supplementary elements    supplementary elements   goodwill and other     
                                      \1\ less goodwill.        \2\ less goodwill.       intangible assets      
                                                                                         required to be deducted
                                                                                         from capital.\3\       
3. Minimum standard of Tier 1        None....................  3.625%.................  4.0%                    
 capital to weighted risk assets.                                                                               
4. Minimum standard of               None....................  3.25%..................  4.0%                    
 stockholders' 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. Qualifying perpetual          No limit within Tier 2..  No limit within Tier 2.  No limit within Tier 2. 
     preferred stock.                                                                                           
    c. Hybrid capital instruments    No limit within Tier 2..  No limit within Tier 2.  No limit within Tier 2. 
     and equity contract notes.                                                                                 
    d. Subordinated debt and         Combined maximum of 50%   Combined maximum of 50%  Combined maximum of 50% 
     intermediate term preferred      of Tier 1.                of Tier 1.               of Tier 1.             
     stock.                                                                                                     
    e. 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 less.  Tier 1 plus Tier 2 less  Tier 1 plus Tier 2 less 
                                       --reciprocal holdings     --reciprocal holdings    --reciprocal holdings 
                                        of banking                of banking               of banking           
                                        organizations'            organizations'           organizations'       
                                        capital instruments.      capital instruments.     capital instruments. 
                                       --investments in          --investments in         --investments in      
                                        unconsolidated            unconsolidated           unconsolidated       
                                        subsidiaries.             subsidiaries.            subsidiaries.        
----------------------------------------------------------------------------------------------------------------
\1\ Supplementary elements may be included in Tier 1 up to 25% of the sum of Tier 1 plus goodwill.              
\2\ Supplementary elements may be included in Tier 1 up to 10% 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.                                                                                                     

[54 FR 4198, Jan. 27, 1989; 54 FR 12531, Mar. 27, 1989, as amended at 55 
FR 32831, Aug. 10, 1990; 56 FR 51156, Oct. 10, 1991; 57 FR 2012, Jan. 
17, 1992; 57 FR 60719, Dec. 22, 1992; 57 FR 62179, 62182, Dec. 30, 1992; 
58 FR 7979, Feb. 11, 1993; 58 FR 68738, Dec. 29, 1993; Reg. H, 59 FR 
62992, Dec. 7, 1994; 59 FR 63244, Dec. 8, 1994; 59 FR 64563, Dec. 15, 
1994; 59 FR 65924, 65925, Dec. 22, 1994; 60 FR 8180, Feb. 13, 1995; 60 
FR 39229, 39230, Aug. 1, 1995; 60 FR 39493, Aug. 2, 1995; 60 FR 45615, 
Aug. 31, 1995; 60 FR 46176, 46178, Sept. 5, 1995; 60 FR 66044, Dec. 20, 
1995; 61 FR 47370, Sept. 6, 1996]

[[Page 257]]

  Appendix B to Part 208--Capital Adequacy Guidelines for State Member 
                     Banks: 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 state member banks.\1\ The 
principal objective of this measure is to place a constraint on the 
maximum degree to which a state member bank can leverage its equity 
capital base. It is intended to be used as a supplement to the risk-
based capital measure.
---------------------------------------------------------------------------


    \1\ Supervisory risk-based capital ratios that related capital to 
weighted-risk assets for state member banks are outlined in Appendix A 
to this part.
---------------------------------------------------------------------------

    b. The guidelines apply to all state member banks on a consolidated 
basis 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 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. An institution 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 CAMEL rating system of banks. 
Institutions not meeting these characteristics, as well as institutions 
with supervisory, financial, or operational weaknesses, are expected to 
operate well above minimum capital standards. Institutions 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 banks. 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 
institutions 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 bank'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.2 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 bank's Reports of Condition and Income 
(Call Reports), 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.3
---------------------------------------------------------------------------


    \2\ At the end of 1992, tier 1 capital for state member banks 
includes common equity, minority interest in the equity accounts of 
consolidated subsidiaries, and qualifying noncumulative perpetual 
preferred stock. 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.

    \3\ Deductions from tier 1 capital and other adjustments are 
discussed more fully in section II.B. in Appendix A of this part.
---------------------------------------------------------------------------

    c. Notwithstanding other provisions of this appendix B, a qualifying 
bank that has transferred small business loans and leases on personal 
property (small business obligations) with recourse shall, for purposes 
of calculating its tier 1 leverage ratio, exclude from its average total 
consolidated assets the outstanding principal amount of the small 
business loans and leases transferred with recourse, provided two 
conditions are met. First, the transaction must be treated

[[Page 258]]

as a sale under generally accepted accounting principles (GAAP) and, 
second, the bank must establish pursuant to GAAP a non-capital reserve 
sufficient to meet the bank'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.
    d. For purposes of this appendix B, a bank is qualifying if it meets 
the criteria set forth in the Board's prompt corrective action 
regulation (12 CFR 208.30) for well capitalized or, by order of the 
Board, adequately capitalized. For purposes of determining whether a 
bank meets these criteria, its capital ratios must be calculated without 
regard to the preferential capital treatment for transfers of small 
business obligations with recourse specified in section II.c. of this 
appendix B. The total outstanding amount of recourse retained by a 
qualifying bank on transfers of small business obligations receiving the 
preferential capital treatment cannot exceed 15 percent of the bank's 
total risk-based capital. By order, the Board may approve a higher 
limit.
    e. If a bank 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 bank was qualifying and did 
not exceed the capital limit.
    f. The leverage capital ratio of the bank shall be calculated 
without regard to the preferential capital treatment for transfers of 
small business obligations with recourse specified in section II of this 
appendix B for purposes of:
    (i) Determining whether a bank is adequately capitalized, 
undercapitalized, significantly undercapitalized, or critically 
undercapitalized under prompt corrective action (12 CFR 208.33(b)); and
    (ii) Reclassifying a well capitalized bank to adequately capitalized 
and requiring an adequately capitalized bank to comply with certain 
mandatory or discretionary supervisory actions as if the bank were in 
the next lower prompt corrective action capital category (12 CFR 
208.33(c)).
    g. Whenever appropriate, including when a bank 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 bank'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. Banks 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. H, 59 FR 65925, Dec. 22, 1994, as amended at 60 FR 39230, Aug. 1, 
1995; 60 FR 45615, Aug. 31, 1995]

 Appendix C to Part 208--Interagency Guidelines for Real Estate Lending 
                                Policies

    The agencies' regulations require that each insured depository 
institution adopt and maintain a written policy that establishes 
appropriate limits and standards for all extensions of credit that are 
secured by liens on or interests in real estate or made for the purpose 
of financing the construction of a building or other improvements.\5\ 
These guidelines are intended to assist institutions in the formulation 
and maintenance of a real estate lending policy that is appropriate to 
the size of the institution and the nature and scope of its individual 
operations, as well as satisfies the requirements of the regulation.
---------------------------------------------------------------------------


    \5\ The agencies have adopted a uniform rule on real estate lending. 
See 12 CFR part 365 (FDIC); 12 CFR part 208, subpart C (FRB); 12 CFR 
part 34, subpart D (OCC); and 12 CFR 563.100-101 (OTS).
---------------------------------------------------------------------------

    Each institution's policies must be comprehensive, and consistent 
with safe and sound lending practices, and must ensure that the 
institution operates within limits and according to standards that are 
reviewed and approved at least annually by the board of directors. Real 
estate lending is an integral part of many institutions' business plans 
and, when undertaken in a prudent manner, will not be subject to 
examiner criticism.

                Loan Portfolio Management Considerations

    The lending policy should contain a general outline of the scope and 
distribution of the institution's credit facilities and the manner in 
which real estate loans are made, serviced, and collected. In 
particular, the institution's policies on real estate lending should:
     Identify the geographic areas in which the institution will 
consider lending.
     Establish a loan portfolio diversification policy and set 
limits for real estate loans by type and geographic market (e.g., limits 
on higher risk loans).
     Identify appropriate terms and conditions by type of real 
estate loan.
     Establish loan origination and approval procedures, both 
generally and by size and type of loan.

[[Page 259]]

     Establish prudent underwriting standards that are clear and 
measurable, including loan-to-value limits, that are consistent with 
these supervisory guidelines.
     Establish review and approval procedures for exception 
loans, including loans with loan-to-value percentages in excess of 
supervisory limits.
     Establish loan administration procedures, including 
documentation, disbursement, collateral inspection, collection, and loan 
review.
     Establish real estate appraisal and evaluation programs.
     Require that management monitor the loan portfolio and 
provide timely and adequate reports to the board of directors.

    The institution should consider both internal and external factors 
in the formulation of its loan policies and strategic plan. Factors that 
should be considered include:
     The size and financial condition of the institution.
     The expertise and size of the lending staff.
     The need to avoid undue concentrations of risk.
     Compliance with all real estate related laws and 
regulations, including the Community Reinvestment Act, anti-
discrimination laws, and for savings associations, the Qualified Thrift 
Lender test.
     Market conditions.

    The institution should monitor conditions in the real estate markets 
in its lending area so that it can react quickly to changes in market 
conditions that are relevant to its lending decisions. Market supply and 
demand factors that should be considered include:
     Demographic indicators, including population and employment 
trends.
     Zoning requirements.
     Current and projected vacancy, construction, and absorption 
rates.
     Current and projected lease terms, rental rates, and sales 
prices, including concessions.
     Current and projected operating expenses for different 
types of projects.
     Economic indicators, including trends and diversification 
of the lending area.
     Valuation trends, including discount and direct 
capitalization rates.

                         Underwriting Standards

    Prudently underwritten real estate loans should reflect all relevant 
credit factors, including:
     The capacity of the borrower, or income from the underlying 
property, to adequately service the debt.
     The value of the mortgaged property.
     The overall creditworthiness of the borrower.
     The level of equity invested in the property.
     Any secondary sources of repayment.
     Any additional collateral or credit enhancements (such as 
guarantees, mortgage insurance or takeout commitments).

    The lending policies should reflect the level of risk that is 
acceptable to the board of directors and provide clear and measurable 
underwriting standards that enable the institution's lending staff to 
evaluate these credit factors. The underwriting standards should 
address:
     The maximum loan amount by type of property.
     Maximum loan maturities by type of property.
     Amortization schedules.
     Pricing structure for different types of real estate loans.
     Loan-to-value limits by type of property.

    For development and construction projects, and completed commercial 
properties, the policy should also establish, commensurate with the size 
and type of the project or property:
     Requirements for feasibility studies and sensitivity and 
risk analyses (e.g., sensitivity of income projections to changes in 
economic variables such as interest rates, vacancy rates, or operating 
expenses).
     Minimum requirements for initial investment and maintenance 
of hard equity by the borrower (e.g., cash or unencumbered investment in 
the underlying property).
     Minimum standards for net worth, cash flow, and debt 
service coverage of the borrower or underlying property.
     Standards for the acceptability of and limits on non-
amortizing loans.
     Standards for the acceptability of and limits on the use of 
interest reserves.
     Pre-leasing and pre-sale requirements for income-producing 
property.
     Pre-sale and minimum unit release requirements for non-
income-producing property loans.
     Limits on partial recourse or nonrecourse loans and 
requirements for guarantor support.
     Requirements for takeout commitments.
     Minimum covenants for loan agreements.

                           Loan Administration

    The institution should also establish loan administration procedures 
for its real estate portfolio that address:
     Documentation, including:

      Type and frequency of financial statements, including requirements 
for verification of information provided by the borrower;
      Type and frequency of collateral evaluations (appraisals and other 
estimates of value).
     Loan closing and disbursement.

[[Page 260]]

     Payment processing.
     Escrow administration.
     Collateral administration.
     Loan payoffs.
     Collections and foreclosure, including:

      Delinquency follow-up procedures;
      Foreclosure timing;
      Extensions and other forms of forbearance;
      Acceptance of deeds in lieu of foreclosure.
     Claims processing (e.g., seeking recovery on a defaulted 
loan covered by a government guaranty or insurance program).
     Servicing and participation agreements.

                    Supervisory Loan-to-Value Limits

    Institutions should establish their own internal loan-to-value 
limits for real estate loans. These internal limits should not exceed 
the following supervisory limits:

                                                                        
------------------------------------------------------------------------
                                                               Loan-to- 
                                                                 value  
                        Loan category                            limit  
                                                               (percent)
------------------------------------------------------------------------
Raw land....................................................          65
Land development............................................          75
Construction:                                                           
    Commercial, multifamily,\1\ and other nonresidential....          80
    1- to 4-family residential..............................          85
Improved property...........................................          85
Owner-occupied 1- to 4-family and home equity...............       (\2\)
------------------------------------------------------------------------
\1\ Multifamily construction includes condominiums and cooperatives.    
\2\ A loan-to-value limit has not been established for permanent        
  mortgage or home equity loans on owner-occupied, 1- to 4-family       
  residential property. However, for any such loan with a loan-to-value 
  ratio that equals or exceeds 90 percent at origination, an institution
  should require appropriate credit enhancement in the form of either   
  mortgage insurance or readily marketable collateral.                  
                                                                        

    The supervisory loan-to-value limits should be applied to the 
underlying property that collateralizes the loan. For loans that fund 
multiple phases of the same real estate project (e.g., a loan for both 
land development and construction of an office building), the 
appropriate loan-to-value limit is the limit applicable to the final 
phase of the project funded by the loan; however, loan disbursements 
should not exceed actual development or construction outlays. In 
situations where a loan is fully cross-collateralized by two or more 
properties or is secured by a collateral pool of two or more properties, 
the appropriate maximum loan amount under supervisory loan-to-value 
limits is the sum of the value of each property, less senior liens, 
multiplied by the appropriate loan-to-value limit for each property. To 
ensure that collateral margins remain within the supervisory limits, 
lenders should redetermine conformity whenever collateral substitutions 
are made to the collateral pool.
    In establishing internal loan-to-value limits, each lender is 
expected to carefully consider the institution-specific and market 
factors listed under ``Loan Portfolio Management Considerations,'' as 
well as any other relevant factors, such as the particular subcategory 
or type of loan. For any subcategory of loans that exhibits greater 
credit risk than the overall category, a lender should consider the 
establishment of an internal loan-to-value limit for that subcategory 
that is lower than the limit for the overall category.
    The loan-to-value ratio is only one of several pertinent credit 
factors to be considered when underwriting a real estate loan. Other 
credit factors to be taken into account are highlighted in the 
``Underwriting Standards'' section above. Because of these other 
factors, the establishment of these supervisory limits should not be 
interpreted to mean that loans at these levels will automatically be 
considered sound.

         Loans in Excess of the Supervisory Loan-to-Value Limits

    The agencies recognize that appropriate loan-to-value limits vary 
not only among categories of real estate loans but also among individual 
loans. Therefore, it may be appropriate in individual cases to originate 
or purchase loans with loan-to-value ratios in excess of the supervisory 
loan-to-value limits, based on the support provided by other credit 
factors. Such loans should be identified in the institutions's records, 
and their aggregate amount reported at least quarterly to the 
institution's board of directors. (See additional reporting requirements 
described under ``Exceptions to the General Policy.'')
    The aggregate amount of all loans in excess of the supervisory loan-
to-value limits should not exceed 100 percent of total capital.\2\ 
Moreover, within the aggregate limit, total loans for all commercial, 
agricultural, multifamily or other non-1-to-4 family residential 
properties should not exceed 30 percent of total capital. An institution 
will come under increased supervisory scrutiny as the total of such 
loans approaches these levels.
---------------------------------------------------------------------------


    \2\ For the state member banks, the term ``total capital'' means 
``total risk-based capital'' as defined in appendix A to 12 CFR part 
208. For insured state non-member banks, ``total capital'' refers to 
that term described in table I of appendix A to 12 CFR part 325. For 
national banks, the term ``total capital'' is defined at 12 CFR 3.2(e). 
For savings associations, the term ``total capital'' is defined at 12 
CFR 567.5(c).
---------------------------------------------------------------------------

    In determining the aggregate amount of such loans, institutions 
should: (a) Include all loans secured by the same property if any one of 
those loans exceeds the supervisory

[[Page 261]]

loan-to-value limits; and (b) include the recourse obligation of any 
such loan sold with recourse. Conversely, a loan should no longer be 
reported to the directors as part of aggregate totals when reduction in 
principal or senior liens, or additional contribution of collateral or 
equity (e.g., improvements to the real property securing the loan), 
bring the loan-to-value ratio into compliance with supervisory limits.

                          Excluded Transactions

    The agencies also recognize that there are a number of lending 
situations in which other factors significantly outweigh the need to 
apply the supervisory loan-to-value limits. These include:
     Loans guaranteed or insured by the U.S. government or its 
agencies, provided that the amount of the guaranty or insurance is at 
least equal to the portion of the loan that exceeds the supervisory 
loan-to-value limit.
     Loans backed by the full faith and credit of a state 
government, provided that the amount of the assurance is at least equal 
to the portion of the loan that exceeds the supervisory loan-to-value 
limit.
     Loans guaranteed or insured by a state, municipal or local 
government, or an agency thereof, provided that the amount of the 
guaranty or insurance is at least equal to the portion of the loan that 
exceeds the supervisory loan-to-value limit, and provided that the 
lender has determined that the guarantor or insurer has the financial 
capacity and willingness to perform under the terms of the guaranty or 
insurance agreement.
     Loans that are to be sold promptly after origination, 
without recourse, to a financially responsible third party.
     Loans that are renewed, refinanced, or restructured without 
the advancement of new funds or an increase in the line of credit 
(except for reasonable closing costs), or loans that are renewed, 
refinanced, or restructured in connection with a workout situation, 
either with or without the advancement of new funds, where consistent 
with safe and sound banking practices and part of a clearly defined and 
well-documented program to achieve orderly liquidation of the debt, 
reduce risk of loss, or maximize recovery on the loan.
     Loans that facilitate the sale of real estate acquired by 
the lender in the ordinary course of collecting a debt previously 
contracted in good faith.
     Loans for which a lien on or interest in real property is 
taken as additional collateral through an abundance of caution by the 
lender (e.g., the institution takes a blanket lien on all or 
substantially all of the assets of the borrower, and the value of the 
real property is low relative to the aggregate value of all other 
collateral).
     Loans, such as working capital loans, where the lender does 
not rely principally on real estate as security and the extension of 
credit is not used to acquire, develop, or construct permanent 
improvements on real property.
     Loans for the purpose of financing permanent improvements 
to real property, but not secured by the property, if such security 
interest is not required by prudent underwriting practice.

                Exceptions to the General Lending Policy

    Some provision should be made for the consideration of loan requests 
from creditworthy borrowers whose credit needs do not fit within the 
institution's general lending policy. An institution may provide for 
prudently underwritten exceptions to its lending policies, including 
loan-to-value limits, on a loan-by-loan basis. However, any exceptions 
from the supervisory loan-to-value limits should conform to the 
aggregate limits on such loans discussed above.
    The board of directors is responsible for establishing standards for 
the review and approval of exception loans. Each institution should 
establish an appropriate internal process for the review and approval of 
loans that do not conform to its own internal policy standards. The 
approval of any such loan should be supported by a written justification 
that clearly sets forth all of the relevant credit factors that support 
the underwriting decision. The justification and approval documents for 
such loans should be maintained as a part of the permanent loan file. 
Each institution should monitor compliance with its real estate lending 
policy and individually report exception loans of a significant size to 
its board of directors.

    Supervisory Review of Real Estate Lending Policies and Practices

    The real estate lending policies of institutions will be evaluated 
by examiners during the course of their examinations to determine if the 
policies are consistent with safe and sound lending practices, these 
guidelines, and the requirements of the regulation. In evaluating the 
adequacy of the institution's real estate lending policies and 
practices, examiners will take into consideration the following factors:
     The nature and scope of the institution's real estate 
lending activities.
     The size and financial condition of the institution.
     The quality of the institution's management and internal 
controls.
     The expertise and size of the lending and loan 
administration staff.
     Market conditions.
    Lending policy exception reports will also be reviewed by examiners 
during the course of their examinations to determine whether

[[Page 262]]

the institutions' exceptions are adequately documented and appropriate 
in light of all of the relevant credit considerations. An excessive 
volume of exceptions to an institution's real estate lending policy may 
signal a weakening of its underwriting practices, or may suggest a need 
to revise the loan policy.

                               Definitions

    For the purposes of these Guidelines:
    Construction loan means an extension of credit for the purpose of 
erecting or rehabilitating buildings or other structures, including any 
infrastructure necessary for development.
    Extension of credit or loan means:
    (1) The total amount of any loan, line of credit, or other legally 
binding lending commitment with respect to real property; and
    (2) The total amount, based on the amount of consideration paid, of 
any loan, line of credit, or other legally binding lending commitment 
acquired by a lender by purchase, assignment, or otherwise.
    Improved property loan means an extension of credit secured by one 
of the following types of real property:
    (1) Farmland, ranchland or timberland committed to ongoing 
management and agricultural production;
    (2) 1- to 4-family residential property that is not owner-occupied;
    (3) Residential property containing five or more individual dwelling 
units;
    (4) Completed commercial property; or
    (5) Other income-producing property that has been completed and is 
available for occupancy and use, except income-producing owner-occupied 
1- to 4-family residential property.
    Land development loan means an extension of credit for the purpose 
of improving unimproved real property prior to the erection of 
structures. The improvement of unimproved real property may include the 
laying or placement of sewers, water pipes, utility cables, streets, and 
other infrastructure necessary for future development.
    Loan origination means the time of inception of the obligation to 
extend credit (i.e., when the last event or prerequisite, controllable 
by the lender, occurs causing the lender to become legally bound to fund 
an extension of credit).
    Loan-to-value or loan-to-value ratio means the percentage or ratio 
that is derived at the time of loan origination by dividing an extension 
of credit by the total value of the property(ies) securing or being 
improved by the extension of credit plus the amount of any readily 
marketable collateral and other acceptable collateral that secures the 
extension of credit. The total amount of all senior liens on or 
interests in such property(ies) should be included in determining the 
loan-to-value ratio. When mortgage insurance or collateral is used in 
the calculation of the loan-to-value ratio, and such credit enhancement 
is later released or replaced, the loan-to-value ratio should be 
recalculated.
    Other acceptable collateral means any collateral in which the lender 
has a perfected security interest, that has a quantifiable value, and is 
accepted by the lender in accordance with safe and sound lending 
practices. Other acceptable collateral should be appropriately 
discounted by the lender consistent with the lender's usual practices 
for making loans secured by such collateral. Other acceptable collateral 
includes, among other items, unconditional irrevocable standby letters 
of credit for the benefit of the lender.
    Owner-occupied, when used in conjunction with the term 1- to 4-
family residential property means that the owner of the underlying real 
property occupies at least one unit of the real property as a principal 
residence of the owner.
    Readily marketable collateral means insured deposits, financial 
instruments, and bullion in which the lender has a perfected interest. 
Financial instruments and bullion must be salable under ordinary 
circumstances with reasonable promptness at a fair market value 
determined by quotations based on actual transactions, on an auction or 
similarly available daily bid and ask price market. Readily marketable 
collateral should be appropriately discounted by the lender consistent 
with the lender's usual practices for making loans secured by such 
collateral.
    Value means an opinion or estimate, set forth in an appraisal or 
evaluation, whichever may be appropriate, of the market value of real 
property, prepared in accordance with the agency's appraisal regulations 
and guidance. For loans to purchase an existing property, the term 
``value'' means the lesser of the actual acquisition cost or the 
estimate of value.
    1- to 4-family residential property means property containing fewer 
than five individual dwelling units, including manufactured homes 
permanently affixed to the underlying property (when deemed to be real 
property under state law).
[57 FR 62896, 62900, Dec. 31, 1992; 58 FR 4460, Jan. 14, 1993]

 Appendix D to Part 208--Interagency Guidelines Establishing Standards 
                        for Safety and Soundness

                            Table of Contents

                             I. Introduction

    A. Preservation of existing authority.
    B. Definitions.

                II. Operational and Managerial Standards

    A. Internal controls and information systems.

[[Page 263]]

    B. Internal audit system.
    C. Loan documentation.
    D. Credit underwriting.
    E. Interest rate exposure.
    F. Asset growth.
    G. Asset quality.
    H. Earnings.
    I. Compensation, fees and benefits.

III. Prohibition on Compensation That Constitutes an Unsafe and Unsound 
                                Practice

    A. Excessive compensation.
    B. Compensation leading to material financial loss.

                             I. Introduction

    i. Section 39 of the Federal Deposit Insurance Act 1 (FDI 
Act) requires each Federal banking agency (collectively, the agencies) 
to establish certain safety and soundness standards by regulation or by 
guideline for all insured depository institutions. Under section 39, the 
agencies must establish three types of standards: (1) Operational and 
managerial standards; (2) compensation standards; and (3) such standards 
relating to asset quality, earnings, and stock valuation as they 
determine to be appropriate.
---------------------------------------------------------------------------


    \1\ Section 39 of the Federal Deposit Insurance Act (12 U.S.C. 
1831p-1) was added by section 132 of the Federal Deposit Insurance 
Corporation Improvement Act of 1991 (FDICIA), Pub. L. 102-242, 105 Stat. 
2236 (1991), and amended by section 956 of the Housing and Community 
Development Act of 1992, Pub. L. 102-550, 106 Stat. 3895 (1992) and 
section 318 of the Riegle Community Development and Regulatory 
Improvement Act of 1994, Pub. L. 103-325, 108 Stat. 2160 (1994).
---------------------------------------------------------------------------

    ii. Section 39(a) requires the agencies to establish operational and 
managerial standards relating to: (1) Internal controls, information 
systems and internal audit systems, in accordance with section 36 of the 
FDI Act (12 U.S.C. 1831m); (2) loan documentation; (3) credit 
underwriting; (4) interest rate exposure; (5) asset growth; and (6) 
compensation, fees, and benefits, in accordance with subsection (c) of 
section 39. Section 39(b) requires the agencies to establish standards 
relating to asset quality, earnings, and stock valuation that the 
agencies determine to be appropriate.
    iii. Section 39(c) requires the agencies to establish standards 
prohibiting as an unsafe and unsound practice any compensatory 
arrangement that would provide any executive officer, employee, 
director, or principal shareholder of the institution with excessive 
compensation, fees or benefits and any compensatory arrangement that 
could lead to material financial loss to an institution. Section 39(c) 
also requires that the agencies establish standards that specify when 
compensation is excessive.
    iv. If an agency determines that an institution fails to meet any 
standard established by guideline under subsection (a) or (b) of section 
39, the agency may require the institution to submit to the agency an 
acceptable plan to achieve compliance with the standard. In the event 
that an institution fails to submit an acceptable plan within the time 
allowed by the agency or fails in any material respect to implement an 
accepted plan, the agency must, by order, require the institution to 
correct the deficiency. The agency may, and in some cases must, take 
other supervisory actions until the deficiency has been corrected.
    v. The agencies have adopted amendments to their rules and 
regulations to establish deadlines for submission and review of 
compliance plans.2
---------------------------------------------------------------------------


    \2\ For the Office of the Comptroller of the Currency, these 
regulations appear at 12 CFR Part 30; for the Board of Governors of the 
Federal Reserve System, these regulations appear at 12 CFR Part 263; for 
the Federal Deposit Insurance Corporation, these regulations appear at 
12 CFR Part 308, subpart R, and for the Office of Thrift Supervision, 
these regulations appear at 12 CFR Part 570.
---------------------------------------------------------------------------

    vi. The following Guidelines set out the safety and soundness 
standards that the agencies use to identify and address problems at 
insured depository institutions before capital becomes impaired. The 
agencies believe that the standards adopted in these Guidelines serve 
this end without dictating how institutions must be managed and 
operated. These standards are designed to identify potential safety and 
soundness concerns and ensure that action is taken to address those 
concerns before they pose a risk to the deposit insurance funds.

                  A. Preservation of Existing Authority

    Neither section 39 nor these Guidelines in any way limits the 
authority of the agencies to address unsafe or unsound practices, 
violations of law, unsafe or unsound conditions, or other practices. 
Action under section 39 and these Guidelines may be taken independently 
of, in conjunction with, or in addition to any other enforcement action 
available to the agencies. Nothing in these Guidelines limits the 
authority of the FDIC pursuant to section 38(i)(2)(F) of the FDI Act (12 
U.S.C. 1831(o)) and Part 325 of Title 12 of the Code of Federal 
Regulations.

                             B. Definitions

    1. In general. For purposes of these Guidelines, except as modified 
in the Guidelines or unless the context otherwise requires, the terms 
used have the same meanings as set forth in sections 3 and 39 of the FDI 
Act (12 U.S.C. 1813 and 1831p-1).

[[Page 264]]

    2. Board of directors, in the case of a state-licensed insured 
branch of a foreign bank and in the case of a federal branch of a 
foreign bank, means the managing official in charge of the insured 
foreign branch.
    3. Compensation means all direct and indirect payments or benefits, 
both cash and non-cash, granted to or for the benefit of any executive 
officer, employee, director, or principal shareholder, including but not 
limited to payments or benefits derived from an employment contract, 
compensation or benefit agreement, fee arrangement, perquisite, stock 
option plan, postemployment benefit, or other compensatory arrangement.
    4. Director shall have the meaning described in 12 CFR 
215.2(c).3
---------------------------------------------------------------------------


    \3\ In applying these definitions for savings associations, pursuant 
to 12 U.S.C. 1464, savings associations shall use the terms ``savings 
association'' and ``insured savings association'' in place of the terms 
``member bank'' and ``insured bank''.
---------------------------------------------------------------------------

    5. Executive officer shall have the meaning described in 12 CFR 
215.2(d).4
---------------------------------------------------------------------------


    \4\ See footnote 3 in section I.B.4. of this appendix.
---------------------------------------------------------------------------

    6. Principal shareholder shall have the meaning described in 12 CFR 
215.2(l).5
---------------------------------------------------------------------------


    \5\ See footnote 3 in section I.B.4. of this appendix.
---------------------------------------------------------------------------

                II. Operational and Managerial Standards

    A. Internal controls and information systems. An institution should 
have internal controls and information systems that are appropriate to 
the size of the institution and the nature, scope and risk of its 
activities and that provide for:
    1. An organizational structure that establishes clear lines of 
authority and responsibility for monitoring adherence to established 
policies;
    2. Effective risk assessment;
    3. Timely and accurate financial, operational and regulatory 
reports;
    4. Adequate procedures to safeguard and manage assets; and
    5. Compliance with applicable laws and regulations.
    B. Internal audit system. An institution should have an internal 
audit system that is appropriate to the size of the institution and the 
nature and scope of its activities and that provides for:
    1. Adequate monitoring of the system of internal controls through an 
internal audit function. For an institution whose size, complexity or 
scope of operations does not warrant a full scale internal audit 
function, a system of independent reviews of key internal controls may 
be used;
    2. Independence and objectivity;
    3. Qualified persons;
    4. Adequate testing and review of information systems;
    5. Adequate documentation of tests and findings and any corrective 
actions;
    6. Verification and review of management actions to address material 
weaknesses; and
    7. Review by the institution's audit committee or board of directors 
of the effectiveness of the internal audit systems.
    C. Loan documentation. An institution should establish and maintain 
loan documentation practices that:
    1. Enable the institution to make an informed lending decision and 
to assess risk, as necessary, on an ongoing basis;
    2. Identify the purpose of a loan and the source of repayment, and 
assess the ability of the borrower to repay the indebtedness in a timely 
manner;
    3. Ensure that any claim against a borrower is legally enforceable;
    4. Demonstrate appropriate administration and monitoring of a loan; 
and
    5. Take account of the size and complexity of a loan.
    D. Credit underwriting. An institution should establish and maintain 
prudent credit underwriting practices that:
    1. Are commensurate with the types of loans the institution will 
make and consider the terms and conditions under which they will be 
made;
    2. Consider the nature of the markets in which loans will be made;
    3. Provide for consideration, prior to credit commitment, of the 
borrower's overall financial condition and resources, the financial 
responsibility of any guarantor, the nature and value of any underlying 
collateral, and the borrower's character and willingness to repay as 
agreed;
    4. Establish a system of independent, ongoing credit review and 
appropriate communication to management and to the board of directors;
    5. Take adequate account of concentration of credit risk; and
    6. Are appropriate to the size of the institution and the nature and 
scope of its activities.
    E. Interest rate exposure. An institution should:
    1. Manage interest rate risk in a manner that is appropriate to the 
size of the institution and the complexity of its assets and 
liabilities; and
    2. Provide for periodic reporting to management and the board of 
directors regarding interest rate risk with adequate information for 
management and the board of directors to assess the level of risk.
    F. Asset growth. An institution's asset growth should be prudent and 
consider:
    1. The source, volatility and use of the funds that support asset 
growth;
    2. Any increase in credit risk or interest rate risk as a result of 
growth; and

[[Page 265]]

    3. The effect of growth on the institution's capital.
    G. Asset quality. An insured depository institution should establish 
and maintain a system that is commensurate with the institution's size 
and the nature and scope of its operations to identify problem assets 
and prevent deterioration in those assets. The institution should:
    1. Conduct periodic asset quality reviews to identify problem 
assets;
    2. Estimate the inherent losses in those assets and establish 
reserves that are sufficient to absorb estimated losses;
    3. Compare problem asset totals to capital;
    4. Take appropriate corrective action to resolve problem assets;
    5. Consider the size and potential risks of material asset 
concentrations; and
    6. Provide periodic asset reports with adequate information for 
management and the board of directors to assess the level of asset risk.
    H. Earnings. An insured depository institution should establish and 
maintain a system that is commensurate with the institution's size and 
the nature and scope of its operations to evaluate and monitor earnings 
and ensure that earnings are sufficient to maintain adequate capital and 
reserves. The institution should:
    1. Compare recent earnings trends relative to equity, assets, or 
other commonly used benchmarks to the institution's historical results 
and those of its peers;
    2. Evaluate the adequacy of earnings given the size, complexity, and 
risk profile of the institution's assets and operations;
    3. Assess the source, volatility, and sustainability of earnings, 
including the effect of nonrecurring or extraordinary income or expense;
    4. Take steps to ensure that earnings are sufficient to maintain 
adequate capital and reserves after considering the institution's asset 
quality and growth rate; and
    5. Provide periodic earnings reports with adequate information for 
management and the board of directors to assess earnings performance.
    I. Compensation, fees and benefits. An institution should maintain 
safeguards to prevent the payment of compensation, fees, and benefits 
that are excessive or that could lead to material financial loss to the 
institution.

III. Prohibition on Compensation That Constitutes an Unsafe and Unsound 
                                Practice

                        A. Excessive Compensation

    Excessive compensation is prohibited as an unsafe and unsound 
practice. Compensation shall be considered excessive when amounts paid 
are unreasonable or disproportionate to the services performed by an 
executive officer, employee, director, or principal shareholder, 
considering the following:
    1. The combined value of all cash and non-cash benefits provided to 
the individual;
    2. The compensation history of the individual and other individuals 
with comparable expertise at the institution;
    3. The financial condition of the institution;
    4. Comparable compensation practices at comparable institutions, 
based upon such factors as asset size, geographic location, and the 
complexity of the loan portfolio or other assets;
    5. For postemployment benefits, the projected total cost and benefit 
to the institution;
    6. Any connection between the individual and any fraudulent act or 
omission, breach of trust or fiduciary duty, or insider abuse with 
regard to the institution; and
    7. Any other factors the agencies determines to be relevant.

           B. Compensation Leading to Material Financial Loss

    Compensation that could lead to material financial loss to an 
institution is prohibited as an unsafe and unsound practice.
[60 FR 35678, 35682, July 10, 1995, as amended by Reg. H, 61 FR 43951, 
Aug. 27, 1996]

  Appendix E to Part 208--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 
Risks,'' January 1996. Also see modifications issued in September 1997.
---------------------------------------------------------------------------

    (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).

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

[[Page 266]]

    (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. Specific 
risk includes such risk as idiosyncratic variation, as well as event and 
default risk.
    (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 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.

[[Page 267]]

    (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 
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

[[Page 268]]

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) Modeled specific risk A bank may use its internal model to 
measure specific risk. If the bank has demonstrated to the Federal 
Reserve that its internal model measures the specific risk, including 
event and default risk as well as idiosyncratic variation, of covered 
debt and equity positions and includes the specific risk measures in the 
VAR-based capital charge in section 3(a)(2)(i) of this appendix, then 
the bank has no specific risk add-on for purposes of section 3(a)(2)(ii) 
of this appendix. The model should explain the historical price 
variation in the trading portfolio and capture concentration, both 
magnitude and changes in composition. The model should also be robust to 
an adverse environment and have been validated through backtesting which 
assesses whether specific risk is being accurately captured.
    (b) Add-on charge for modeled specific risk. If a bank's model 
measures specific risk, but the bank has not been able to demonstrate to 
the Federal Reserve that the model adequately measures event and default 
risk for covered debt and equity positions, then the bank's specific 
risk add-on is determined as follows:
    (1) If the model is susceptible to valid separation of the VAR 
measure into a specific risk portion and a general market risk portion, 
then the specific risk add-on is equal to the previous day's specific 
risk portion.
    (2) If the model does not separate the VAR measure into a specific 
risk portion and a general market risk portion, then the specific risk 
add-on is the sum of the previous day's VAR measures for subportfolios 
of covered debt and covered equity positions.
    (c) Add-on charge if specific risk is not modeled. If a bank does 
not model specific risk in accordance with paragraph (a) or (b) of this 
section, then the bank's specific risk add-on charge equals the 
components for covered debt and equity positions as appropriate:
    (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

[[Page 269]]

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.
---------------------------------------------------------------------------

    (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

[[Page 270]]

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. H, 61 FR 47370, Sept. 6, 1996, as amended at 62 FR 68067, Dec. 30, 
1997]



PART 209--ISSUE AND CANCELLATION OF CAPITAL STOCK OF FEDERAL RESERVE BANKS (REGULATION I)--Table of Contents




Sec.
209.1  National bank in process of organization.
209.2  State bank becoming member.
209.3  Increase or decrease of capital or surplus.
209.4  Increase or decrease of deposits by mutual savings bank.
209.5  Merger or consolidation.
209.6  Conversion of national bank.
209.7  Insolvency.
209.8  Voluntary liquidation.
209.9  Other closed national banks.
209.10  Other closed State member banks.
209.11  Voluntary withdrawal from membership.
209.12  Involuntary termination of membership.
209.13  Cancellation of old and issue of new stock certificate.
209.14  Forms.
209.15  Location of bank.

    Authority:  12 U.S.C. 248, 321-338, 486, 1814, 1816.

    Source:  Reg. I, 27 FR 12915, Dec. 29, 1962, unless otherwise noted.



Sec. 209.1  National bank in process of organization.

    Each national bank, 1 while in process of organization, 
2 shall file with the Federal Reserve Bank of its district an 
application on Form FR 30, and each nonmember State bank converting into 
a national bank, 3 shall file an application on Form FR 30a, 
for an amount of

[[Page 271]]

capital stock of the Federal Reserve Bank of its district equal to six 
percent of the paid-up 4 capital and surplus of such national 
bank. If the application is found to be in proper form it will be 
approved by the Federal Reserve Bank effective if and when the 
Comptroller of the Currency issues to such bank his certificate of 
authority to commence business. Upon approval, the applying bank shall 
thereupon 5 pay the Federal Reserve Bank of its district one-
half of the amount of its subscription and, upon receipt of advice from 
the Federal Reserve Bank as to the required amount, one-half of one per 
cent of its paid-up subscription for each month from the period of the 
last dividend, and upon receipt of the payment for Federal Reserve Bank 
stock the Federal Reserve Bank will issue a receipt therefor, place the 
amount in a suspense account, and notify the Comptroller of the Currency 
that it has been received. When the Comptroller of the Currency issues 
his certificate of authority to commence business the Federal Reserve 
Bank will issue a stock certificate as of the date upon which the bank 
opens for business. The remaining half of the subscription of the 
applying bank will be subject to call when deemed necessary by the Board 
of Governors of the Federal Reserve System.
---------------------------------------------------------------------------


    1  Under the provisions of section 19 of the Federal 
Reserve Act (12 U.S.C. 466), national banks located in a dependency or 
insular possession or any part of the United States outside the States 
of the United States and the District of Columbia are not required to 
become members of the Federal Reserve System but may, with the consent 
of the Board, become members of the System. Any such bank desiring to be 
admitted to the System under the provisions of section 19 should 
communicate with the Federal Reserve Bank with which it desires to do 
business.

    2  A new national bank with no capital or board of 
directors which is organized by the Federal Deposit Insurance 
Corporation pursuant to the provisions of section 11(h) of the Federal 
Deposit Insurance Act (12 U.S.C. 1821(h)), should not apply for stock of 
the Federal Reserve Bank of its district until it is in process of 
organization as a national bank with capital pursuant to the provisions 
of section 11(k) of the Federal Deposit Insurance Act (12 U.S.C. 
1821(k)).

    3  Whenever a State member bank is converted into a 
national bank under section 5154 of the Revised Statutes (12 U.S.C. 35), 
it may continue to hold as a national bank its shares of Federal Reserve 
Bank stock previously held as a State member bank. If the aggregate 
amount of its capital and surplus is increased or decreased, the 
national bank shall file an application on Form FR 56, as provided in 
Sec. 209.3, for additional shares of Federal Reserve Bank stock or for 
cancellation of Federal Reserve Bank stock. The certificate of stock 
issued in the name of the State member bank shall be surrendered and 
canceled, and a new certificate will be issued in lieu thereof in the 
name of the national bank, as provided in Sec. 209.13.

    4  Subscriptions to the capital stock of the Federal 
Reserve Bank must be made in an amount at least equal to six per cent of 
the amount of the capital and surplus of the applying bank which is to 
be paid in at the time the Comptroller of the Currency authorizes it to 
commence business. In order to avoid the necessity of making 
applications for additional stock in the Federal Reserve Bank, as 
additional installments of the capital and surplus of the applying bank 
are paid in, application may be made for stock in the Federal Reserve 
Bank in an amount equal to six percent of the authorized capital of the 
applying bank, plus six per cent of the amount of surplus, if any, which 
the subscribers to the capital of the applying bank have agreed to pay 
in.

    5  Payment may be made, if desired, at any time prior to 
approval of the application.
---------------------------------------------------------------------------



Sec. 209.2  State bank becoming member.

    Any State bank, Morris Plan bank, or mutual savings bank, desiring 
to become a member of the Federal Reserve System shall make application 
as provided in part 208 of this chapter (Regulation H) and, when such 
application has been approved by the Board of Governors of the Federal 
Reserve System and all applicable requirements have been complied with, 
the Federal Reserve Bank will issue an appropriate certificate of 
Federal Reserve Bank stock as provided in Sec. 208.5(b) of this chapter.



Sec. 209.3  Increase or decrease of capital or surplus.

    Whenever any member bank increases or decreases the aggregate amount 
of its paid-up capital and surplus, 6 it shall file with the 
Federal Reserve Bank of its district an application on Form FR 56 for 
such additional amount or for the cancellation of such amount, as the 
case may be, of the capital stock of the Federal Reserve Bank of its 
district as may be necessary to make its total subscription to Federal 
Reserve Bank stock equal to six percent of its combined capital and 
surplus. After an application for additional Federal Reserve Bank stock 
has been approved by the Federal Reserve Bank, the applying member bank 
shall pay to the Federal Reserve Bank of its district one-half of its 
additional subscription, plus one-half of one percent a month from the 
period of the last dividend on such Federal Reserve Bank stock, 
whereupon the appropriate certificate of stock will be issued by the 
Federal Reserve Bank. The remaining

[[Page 272]]

half of such additional subscription will be subject to call when deemed 
necessary by the Board of Governors of the Federal Reserve System. After 
an application for cancellation of Federal Reserve Bank stock has been 
approved, the Federal Reserve Bank will accept and cancel the stock 
which the applying bank is required to surrender, and will pay to the 
member bank a sum equal to all cash paid subscriptions made on the stock 
canceled plus one-half of one percent a month from the period of the 
last dividend, not to exceed the book value thereof.
---------------------------------------------------------------------------


    6  If a member bank sets up a reserve for dividends 
payable in common stock, such reserve will be regarded as surplus for 
the purpose of determining the amount of Federal Reserve Bank stock 
which the bank is required to hold, provided such reserve is established 
pursuant to a resolution of the board of directors, will become a part 
of the permanent capital of the bank, and will not be used for any other 
purpose than the payment of dividends in common stock.
---------------------------------------------------------------------------



Sec. 209.4  Increase or decrease of deposits by mutual savings bank.

    Whenever, as shown by the last report of condition as of a date 
preceding January 1 or July 1 of each year, the total deposit 
liabilities of a mutual savings bank which is a member of the Federal 
Reserve System have increased or decreased since the last adjustment of 
its holdings of Federal Reserve Bank stock, the bank shall file with the 
Federal Reserve Bank of its district an application on Form FR 56a for 
such additional amount or for the cancellation of such amount, as the 
case may be, of Federal Reserve Bank stock of its district as may be 
necessary to make its total subscription to Federal Reserve Bank stock 
equal to six-tenths of one percent of its total deposit liabilities as 
shown by such last report of condition, and Federal Reserve Bank stock 
will be issued or canceled in the manner described in Sec. 209.3. In the 
case of any mutual savings bank which is not permitted by the laws under 
which it was organized to purchase stock in the Federal Reserve Bank and 
has a deposit with the Federal Reserve Bank in lieu of such 
subscription, such deposit will be adjusted in the same manner as 
subscriptions for stock.



Sec. 209.5  Merger or consolidation.

    (a) Whenever two or more member banks merge or consolidate and such 
action results in the merged or consolidated bank acquiring by operation 
of law 7 the Federal Reserve Bank stock owned by the other 
bank or banks, and which also results in the merged or consolidated bank 
having an aggregate capital and surplus in excess of, or less than, the 
aggregate capital and surplus of the merging or consolidating member 
banks, such merged or consolidated bank shall, as provided in 
Sec. 209.3, file with the Federal Reserve Bank of its district an 
application on Form FR 56 for such additional amount, or for the 
cancellation of such amount, as the case may be, of Federal Reserve Bank 
stock of its district as may be necessary to make its total subscription 
to Federal Reserve Bank stock equal to six percent of its combined 
capital and surplus. In any such case, the merged or consolidated bank 
shall surrender to the Federal Reserve Bank the certificates of Federal 
Reserve Bank stock held by the merged or consolidated bank and a new 
certificate will be issued as provided in Sec. 209.13(b).
---------------------------------------------------------------------------


    7  Section 5 of the Federal Reserve Act provides that 
``Shares of the capital stock of Federal Reserve Banks owned by member 
banks shall not be transferred or hypothecated.'' This provision 
prevents a transfer of Federal Reserve Bank stock by purchase, but does 
not prevent a transfer by operation of law. Where one member bank 
purchases all or a substantial portion of the assets of another member 
bank, the latter being placed in liquidation, it is necessary for the 
liquidating bank to surrender its Federal Reserve Bank stock, as 
provided in Sec. 209.8, and for the purchasing bank, if its capital and 
surplus is increased or decreased, to adjust its holdings of Federal 
Reserve Bank stock as provided in Sec. 209.3.
    If the assets and obligations of a merging or consolidating member 
bank are transferred to a merged or consolidated member bank by 
operation of law, no bank being placed in liquidation, the merged or 
consolidated bank becomes the owner of the Federal Reserve Bank stock of 
the merging or consolidating bank as soon as the merger or consolidation 
takes effect, and a new certificate representing Federal Reserve Bank 
stock will be issued as provided in Sec. 209.13(b). Mergers or 
consolidations under the acts of Congress providing for the merger or 
consolidation of national banking associations (12 U.S.C. 215, 215a) 
meet all of these conditions.
---------------------------------------------------------------------------

    (b) Whenever a member bank merges or consolidates with a nonmember 
bank, under the charter of the latter bank, an application on Form FR 
86a shall be filed with the Federal Reserve Bank for cancellation of 
Federal Reserve Bank stock held by the member

[[Page 273]]

bank. Upon approval of such application, the Federal Reserve Bank will 
cancel such stock as of the date the merger or consolidation takes 
effect, and will adjust accounts by applying to any indebtedness of the 
merging or consolidating bank to such Federal Reserve Bank all cash paid 
subscriptions made on the stock canceled plus one-half of one percent a 
month from the period of the last dividend, not to exceed the book value 
thereof, and the remainder, if any, will be paid to the merged or 
consolidated bank.



Sec. 209.6  Conversion of national bank.

    Whenever a national bank converts into a nonmember State bank, an 
application on Form FR 86b shall be filed with the Federal Reserve Bank 
for cancellation of Federal Reserve Bank stock held by the national 
bank. Upon approval of such application, the Federal Reserve Bank will 
cancel such stock as of the date the conversion takes effect, and will 
adjust accounts in the manner described in Sec. 209.5(b).



Sec. 209.7  Insolvency.

    Whenever a member bank is declared insolvent and a receiver 8 
appointed, the receiver shall, within three months from the date of his 
appointment, file with the Federal Reserve Bank of the district an 
application on Form FR 87 for cancellation of Federal Reserve Bank stock 
held by the insolvent member bank. If the receiver fails to make 
application within the time specified, the board of directors of the 
Federal Reserve Bank will either issue an order to cancel such stock, 
or, if the circumstances warrant it, grant the receiver additional time 
in which to file an application. Upon approval of such application or 
upon issuance of such order, the Federal Reserve Bank will cancel such 
stock as of the date of such approval or order and will adjust accounts 
in the manner described in Sec. 209.5(b).
---------------------------------------------------------------------------


    8  The term receiver includes any person, commission, or 
other agency charged by law with the duty of winding up the affairs of 
the bank.
---------------------------------------------------------------------------



Sec. 209.8  Voluntary liquidation.

    Whenever a member bank goes into voluntary liquidation, as, for 
example, upon sale of assets to another bank, the liquidating agent or 
some other person or persons duly authorized by the stockholders or 
board of directors to act on behalf of the bank shall, within three 
months from the date of the vote to place the bank in voluntary 
liquidation, file with the Federal Reserve Bank of the district an 
application on Form FR 86 for cancellation of Federal Reserve Bank stock 
held by the liquidating member bank. If such application is not filed 
within the time specified, the board of directors of the Federal Reserve 
Bank will either issue an order to cancel such stock, or, if the 
circumstances warrant it, grant additional time in which to file an 
application. Upon approval of such application, or upon issuance of such 
order, the Federal Reserve Bank will cancel such stock as of the date of 
such approval or order and will adjust accounts between the liquidating 
member bank and the Federal Reserve Bank in the manner described in 
Sec. 209.5(b).



Sec. 209.9  Other closed national banks.

    (a) Whenever a national bank which has not gone into liquidation as 
provided in section 5220 of the Revised Statutes of the United States 
(12 U.S.C. 181), and for which a receiver has not been appointed, 
discontinues its banking operations for a period of sixty days, the 
Federal Reserve Bank will report the facts to the Comptroller of the 
Currency with a statement of reasons why a receiver should be appointed 
for the national bank. If such receiver is appointed, the procedure 
prescribed in Sec. 209.7 for cancellation of Federal Reserve Bank stock 
held by the national bank shall be followed.
    (b) Whenever a national bank has been placed in the hands of a 
conservator, the procedure prescribed in Sec. 209.7 for cancellation of 
Federal Reserve Bank stock held by such bank shall be followed; provided 
a certificate is furnished by the Comptroller of the Currency to the 
effect that the conservator has been authorized to apply for 
cancellation of Federal Reserve Bank

[[Page 274]]

stock, and that the bank is to be liquidated and is not to be permitted 
to resume business or to reorganize.



Sec. 209.10  Other closed State member banks.

    Whenever a State member bank ceases to exercise banking functions 
without being placed in liquidation in accordance with the laws of the 
State in which it is located and without a receiver 9 
appointed for it, and such bank has not within sixty days of the 
cessation of banking functions applied for withdrawal from membership in 
the Federal Reserve System as provided in part 208 of this chapter 
(Regulation H), the Federal Reserve Bank of the district in which such 
State member bank is located will furnish the Board of Governors of the 
Federal Reserve System with full information with reference to the facts 
involved in the case and with a definite recommendation as to whether 
the Board should require the State member bank to surrender its Federal 
Reserve Bank stock and terminate all rights and privileges of membership 
in the Federal Reserve System. Upon receipt of this advice, if 
termination of membership of the State member bank appears desirable, 
the Board will give the member bank notice of the date upon which a 
hearing will be held to determine whether its membership should be 
terminated. If, after such hearing, the membership of a State bank is 
terminated, the Board will direct the Federal Reserve Bank of the 
Federal Reserve district in which the member bank is located to cancel 
the Federal Reserve Bank stock as of the date of termination of 
membership and adjust accounts in the manner described in Sec. 209.5(b).
---------------------------------------------------------------------------


    9  The term receiver includes any person, commission, or 
other agency charged by law with the duty of winding up the affairs of 
the bank.
---------------------------------------------------------------------------



Sec. 209.11  Voluntary withdrawal from membership.

    Any State member bank desiring to withdraw from membership in the 
Federal Reserve System shall follow the procedure set forth in part 208 
of this chapter (Regulation H), and when all applicable requirements of 
Sec. 208.10 of this chapter have been complied with the Federal Reserve 
Bank will cancel the Federal Reserve Bank stock held by the member bank 
as of the date of withdrawal from membership and will adjust accounts in 
the manner described in Sec. 209.5(b).



Sec. 209.12  Involuntary termination of membership.

    Any State member bank whose membership has been terminated for 
failure to comply with the provisions of the Federal Reserve Act or 
regulations of the Board of Governors of the Federal Reserve System 
shall surrender its Federal Reserve Bank stock as of the date membership 
is terminated and accounts will be adjusted in the manner described in 
Sec. 209.5(b).



Sec. 209.13  Cancellation of old and issue of new stock certificate.

    (a) Whenever a member bank changes its name it shall surrender to 
the Federal Reserve Bank the certificate of Federal Reserve Bank stock 
which was issued to it under its old name. If the Federal Reserve Bank 
has or is furnished with proof of the change of name, it will cancel the 
certificate so surrendered and will issue in lieu thereof to and in the 
name of the member bank surrendering it a new certificate for the number 
of shares represented by the certificate so surrendered.
    (b) If a member bank has filed application for an increase or 
decrease in its holdings of Federal Reserve Bank stock pursuant to the 
provisions of Sec. 209.3, or has acquired the Federal Reserve Bank stock 
from another Bank by virtue of a merger or consolidation of the kind 
described in Sec. 209.5(a), it shall surrender the stock certificate 
previously issued to it and the certificate representing any stock so 
acquired, and the Federal Reserve Bank will issue a new certificate for 
the number of shares represented by the surrendered certificate or 
certificates decreased by the number of shares canceled or increased by 
the number of additional shares to be issued.
    (c) In order to provide a convenient means for identifying shares of 
Federal Reserve Bank stock purchased and paid for prior to March 28, 
1942, as to which

[[Page 275]]

dividends are not subject to Federal taxation, the Federal Reserve Bank 
will endorse on the back of the stock certificate an appropriate 
notation setting forth the number of shares represented which were 
purchased and paid for prior to March 28, 1942, and the number of shares 
purchased and paid for on or after that date. In lieu of issuing a 
single certificate, the Federal Reserve Bank may issue two certificates 
to each member bank holding both classes of stock, one representing 
stock purchased and paid for prior to March 28, 1942, and the other 
representing stock purchased and paid for on or after that date, in 
which case the former will be endorsed to read: ``This certificate 
represents shares of Federal Reserve Bank stock which were purchased and 
paid for prior to March 28, 1942.'' No endorsement will be necessary on 
the latter certificate.



Sec. 209.14  Forms.

    All forms referred to in this part and all such forms as they may be 
amended from time to time shall be a part of the regulation contained in 
this part.



Sec. 209.15  Location of bank.

    (a) General rule. For purposes of this part, a national bank or a 
state bank is located in the Federal Reserve District that contains the 
location specified in the bank's charter or organizing certificate, or, 
if no such location is specified, the location of its head office, 
unless otherwise determined by the Board under paragraph (b) of this 
section.
    (b) Board determination. If the location of a bank as specified in 
paragraph (a) of this section, in the Board's judgment, is ambiguous, 
would impede the ability of the Board or the Federal Reserve Banks to 
perform their functions under the Federal Reserve Act, or would impede 
the ability of the bank to operate efficiently, the Board will determine 
the Federal Reserve District in which the bank is located, after 
consultation with the bank and the relevant Federal Reserve Banks. The 
relevant Federal Reserve Banks are the Federal Reserve Bank whose 
District contains the location specified in the paragraph (a) of this 
section and the Federal Reserve Bank in whose District the bank is 
proposed to be located. In making this determination, the Board will 
consider any applicable laws, the business needs of the bank, the 
location of the bank's head office, the locations where the bank 
performs its business, and the locations that would allow the bank, the 
Board, and the Federal Reserve Banks to perform their functions 
efficiently and effectively.
[Reg. I, 62 FR 34616, June 27, 1997]



PART 210--COLLECTION OF CHECKS AND OTHER ITEMS BY FEDERAL RESERVE BANKS AND FUNDS TRANSFERS THROUGH FEDWIRE (REGULATION J)--Table of Contents




Subpart A--Collection of Checks and Other Items By Federal Reserve Banks

Sec.
210.1  Authority, purpose, and scope.
210.2  Definitions.
210.3  General provisions.
210.4  Sending items to Reserve banks.
210.5  Sender's agreement; recovery by Reserve Bank.
210.6  Status, warranties, and liability of Reserve Bank.
210.7  Presenting items for payment.
210.8  Presenting noncash items for acceptance.
210.9  Settlement and payment.
210.10  Time schedule and availability of credits for cash items and 
          returned checks.
210.11  Availability of proceeds of noncash items; time schedule
210.12  Return of cash items and handling of returned checks.
210.13  Unpaid items.
210.14  Extension of time limits.
210.15  Direct presentment of certain warrants.

               Subpart B--Funds Transfers Through Fedwire

210.25  Authority, purpose, and scope.
210.26  Definitions.
210.27  Reliance on identifying number.
210.28  Agreement of sender.
210.29  Agreement of receiving bank.
210.30  Payment orders.
210.31  Payment by a Federal Reserve Bank to a receiving bank or 
          beneficiary.
210.32  Federal Reserve Bank liability; payment of interest.


Appendix A to Subpart B--Commentary
Appendix B to Subpart B--Article 4A, Funds Transfers


[[Page 276]]


    Authority:  12 U.S.C. 248 (i), (j), and (o), 342, 360, 464, and 
4001-4010.

    Source:  45 FR 68634, Oct. 16, 1980, unless otherwise noted.



Subpart A--Collection of Checks and Other Items By Federal Reserve Banks



Sec. 210.1  Authority, purpose, and scope.

    The Board of Governors of the Federal Reserve System (Board) has 
issued this subpart pursuant to the Federal Reserve Act, sections 11 (i) 
and (j) (12 U.S.C. 248 (i) and (j)), section 13 (12 U.S.C. 342), section 
16 (12 U.S.C. 248(o) and 360), and section 19(f) (12 U.S.C. 464); the 
Expedited Funds Availability Act (12 U.S.C. 4001 et seq.); and other 
laws. This subpart governs the collection of checks and other cash and 
noncash items and the handling of returned checks by Federal Reserve 
Banks. Its purpose is to provide rules for collecting and returning 
items and settling balances.
[53 FR 21984, June 13, 1988, as amended at Reg. J, 59 FR 22965, May 4, 
1994]



Sec. 210.2  Definitions.

    As used in this subpart, unless the context otherwise requires:
    (a) Account means an account with reserve or clearing balances on 
the books of a Federal Reserve Bank. A subaccount is an informational 
record of a subset of transactions that affect an account and is not a 
separate account.
    (b) Actually and finally collected funds means cash or any other 
form of payment that is, or has become, final and irrevocable.
    (c) Administrative Reserve Bank with respect to an entity means the 
Reserve Bank in whose District the entity is located, as determined 
under the procedure described in Sec. 204.3(b)(2) of this chapter 
(Regulation D), even if the entity is not otherwise subject to that 
section.
    (d) Bank means any person engaged in the business of banking. A 
branch or separate office of a bank is a separate bank to the extent 
provided in the Uniform Commercial Code.
    (e) Bank draft means a check drawn by one bank on another bank.
    (f) Banking day means the part of a day on which a bank is open to 
the public for carrying on substantially all of its banking functions.
    (g) Cash item means --
    (1) A check other than one classified as a noncash item under this 
section; or
    (2) Any other item payable on demand and collectible at par that the 
Reserve Bank that receives the item is willing to accept as a cash item. 
Cash item does not include a returned check.
    (h) Check means a draft, as defined in the Uniform Commercial Code, 
that is drawn on a bank and payable on demand. Check as defined in 12 
CFR 229.2(k) means an item defined as a check in 12 CFR 229.2(k) for 
purposes of subpart C of part 229.
    (i) Item means an instrument or a promise or order to pay money, 
whether negotiable or not, that is:
    (1) Payable in a Federal Reserve District 1 (District);
---------------------------------------------------------------------------


    \1\ For purposes of this subpart, the Virgin Islands and Puerto Rico 
are deemed to be in the Second District, and Guam, American Samoa, and 
the Northern Mariana Islands in the Twelfth District.
---------------------------------------------------------------------------

    (2) Sent by a sender to a Reserve Bank for handling under this 
subpart; and
    (3) Collectible in funds acceptable to the Reserve Bank of the 
District in which the instrument is payable.

Unless otherwise indicated, item includes both a cash and a noncash 
item, and includes a returned check sent by a paying or returning bank. 
Item does not include a check that cannot be collected at par, or a 
payment order as defined in Sec. 210.26(i) and handled under subpart B 
of this part.

    (j) Nonbank payor means a payor of an item, other than a bank.
    (k) Noncash item means an item that a receiving Reserve Bank 
classifies in its operating circulars as requiring special handling. The 
term also means an item normally received as a cash item if a Reserve 
Bank decides that special conditions require that it handle the item as 
a noncash item.
    (l) Paying bank means--
    (1) The bank by which an item is payable unless the item is payable 
or collectible at or through another bank

[[Page 277]]

and is sent to the other bank for payment or collection;
    (2) The bank at or through which an item is payable or collectible 
and to which it sent for payment or collection; or
    (3) The bank whose routing number appears on a check in magnetic 
characters or fractional form and to which the check is sent for payment 
or collection.
    (m) Returned check means a cash item or a check as defined in 12 CFR 
229.2(k) returned by a paying bank, including a notice of nonpayment in 
lieu of a returned check, whether or not a Reserve Bank handled the 
check for collection.
    (n) Sender means any of the following that sends an item to a 
Reserve Bank for forward collection:
    (1) Depository institution means a depository institution as defined 
in section 19(b) of the Federal Reserve Act. (12 U.S.C. 461(b))
    (2) Clearing institution means:
    (i) An institution that is not a depository institution, but 
maintains with a Reserve Bank the balance referred to in the first 
paragraph of section 13 of the Federal Reserve Act (12 U.S.C. 342); or
    (ii) A corporation that maintains an account with a Reserve Bank in 
conformity with Sec. 211.4 of this chapter (Regulation K).
    (3) International Organization means an international organization 
for which a Reserve Bank is empowered to act as depository or fiscal 
agent and maintains an account.
    (4) Foreign correspondent means any of the following for which a 
Reserve Bank maintains an account: a foreign bank or banker, a foreign 
state as defined in section 25(b) of the Federal Reserve Act (12 U.S.C. 
632), or a foreign correspondent or agency referred to in section 14(e) 
of that Act (12 U.S.C. 358).
    (o) State means a State of the United States, the District of 
Columbia, Puerto Rico, or a territory, possession, or dependency of the 
United States.

Unless the context otherwise requires, the terms not defined herein have 
the meanings set forth in 12 CFR 229.2 applicable to subpart C of part 
229, and the terms not defined herein or in 12 CFR 229.2 have the 
meanings set forth in the Uniform Commercial Code.
    (p) Clock hour means a time that is on the hour, such as 1:00, 2:00, 
etc.
    (q) Fedwire has the same meaning as that set forth in 
Sec. 210.26(e).
    (r) Uniform Commercial Code means the Uniform Commercial Code as 
adopted in a state.
[45 FR 68634, Oct. 16, 1980, as amended at 46 FR 42059, Aug. 19, 1981; 
51 FR 21744, June 16, 1986; 53 FR 21984, June 13, 1988; 57 FR 46955, 
Oct. 14, 1992; Reg. J, 59 FR 22965, May 4, 1994; 62 FR 48171, Sept. 15, 
1997]

    Effective Date Note: At 62 FR 48171, Sept. 15, 1997, Sec. 210.2 was 
amended by redesignating paragraph (a) and paragraphs (b) through (p) as 
paragraph (b) and paragraphs (d) through (r), respectively; adding new 
paragraphs (a) and (c); and revising newly redesignated paragraphs (d), 
(g) introductory text, and (g)(2), effective Jan. 2, 1998. For the 
convenience of the user, the superseded text follows:

Sec. 210.2  Definitions.

                                * * * * *

    (b) Bank includes a depository institution as defined in section 19 
of the Federal Reserve Act (12 U.S.C. 461(b)).

                                * * * * *

    (e) Cash items means--

                                * * * * *

    (2) Any other item payable on demand and collectible at par that the 
Reserve Bank of the District in which the item is payable is willing to 
accept as a cash item. Cash item does not include a returned check.

                                * * * * *



Sec. 210.3  General provisions.

    (a) General. Each Reserve Bank shall receive and handle items in 
accordance with this subpart, and shall issue operating circulars 
governing the details of its handling of items and other matters deemed 
appropriate by the Reserve Bank. The circulars may, among other things, 
classify cash items and noncash items, require separate sorts and 
letters, provide different closing times for the receipt of different 
classes or types of items, provide for instructions by an Administrative 
Reserve Bank to other Reserve Banks, set forth terms of services, and 
establish procedures for adjustments on a Reserve Bank's books,

[[Page 278]]

including amounts, waiver of expenses, and payment of interest by as-of 
adjustment.
    (b) Binding effect. This subpart, together with subpart C of part 
229 and the operating circulars of the Reserve Banks, are binding on all 
parties interested in an item handled by any Reserve Bank.
    (c) Government items. As depositaries and fiscal agents of the 
United States, Reserve Banks handle certain items payable by the United 
States or certain Federal agencies as cash or noncash items. To the 
extent provided by regulations issued by, and arrangements made with, 
the United States Treasury Department and other Government departments 
and agencies, the handling of such items is governed by this subpart. 
The Reserve Banks shall include in their operating circulars such 
information regarding these regulations and arrangements as the Reserve 
Banks deem appropriate.
    (d) Government senders. Except as otherwise provided by statutes of 
the United States, or regulations issued or arrangements made 
thereunder, this subpart and the operating circulars of the Reserve 
Banks apply to the following when acting as a sender: a department, 
agency, instrumentality, independent establishment, or office of the 
United States, or a wholly owned or controlled Government corporation, 
that maintains or uses an account with a Reserve Bank.
    (e) Foreign items. A Reserve Bank also may receive and handle 
certain items payable outside a Federal Reserve District, as provided in 
its operating circulars. The handling of such items in a state is 
governed by this subpart, and the handling of such items outside a state 
is governed by the local law.
    (f) Relation to other law. The provisions of this subpart supersede 
any inconsistent provisions of the Uniform Commercial Code, of any other 
state law, or of part 229 of this title, but only to the extent of the 
inconsistency.
[45 FR 68634, Oct. 16, 1980, as amended at 51 FR 21744, June 16, 1986; 
53 FR 21984, June 13, 1988; Reg. J, 59 FR 22965, May 4, 1994; 62 FR 
48171, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48171, Sept. 15, 1997, Sec. 210.3 was 
amended by revising the last sentence of paragraph (a), effective Jan. 
2, 1998. For the convenience of the user, the superseded text follows:

Sec. 210.3  General provisions.

    (a) * * * The circulars may, among other things, classify cash items 
and noncash items, require separate sorts and letters, provide different 
closing times for the receipt of different classes or types of items, 
set forth terms of services, and establish procedures for adjustments on 
a Reserve Bank's books, including amounts, waiver of expenses, and 
payment of interest by as-of adjustment.

                                * * * * *



Sec. 210.4  Sending items to Reserve Banks.

    (a) Sending of items. A sender, other than a Reserve Bank, may send 
any item to any Reserve Bank, whether or not the item is payable within 
the Reserve Bank's District, unless the sender's Administrative Reserve 
Bank directs the sender to send the item to a specific Reserve Bank.
    (b) Handling of items. (1) The following parties, in the following 
order, are deemed to have handled an item that is sent to a Reserve Bank 
for collection--
    (i) The initial sender
    (ii) The initial sender's Administrative Reserve Bank
    (iii) The Reserve Bank that receives the item from the initial 
sender (if different from the initial sender's Administrative Reserve 
Bank); and
    (iv) Another Reserve Bank, if any, that receives the item from a 
Reserve Bank.
    (2) A Reserve Bank that is not described in paragraph (b)(1) of this 
section is not a party that handles an item and is not a collecting bank 
with respect to an item.
    (3) The identity and order of the parties under paragraph (b)(1) of 
this section determine the relationships and the rights and liabilities 
of the parties under this subpart, part 229 of this chapter (Regulation 
CC), and the Uniform Commercial Code. An initial sender's Administrative 
Reserve Bank that is deemed to handle an item is also deemed to be a 
sender with respect to that item. The Reserve Banks that are deemed to 
handle an item are deemed to be agents or subagents of the owner of the 
item, as provided in Sec. 210.6(a) of this subpart.

[[Page 279]]

    (c) Checks received at par. The Reserve Banks shall receive cash 
items and other checks at par.
[Reg. J, 62 FR 48171, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48171, Sept. 15, 1997, Sec. 210.4 was 
revised, effective Jan. 2, 1998. For the convenience of the user, the 
superseded text follows:

Sec. 210.4  Sending items to Reserve Banks.

    (a) A sender may send any item to the Reserve Bank with which it 
maintains or uses an account, but that Reserve Bank may permit or 
require the sender to send direct to another Reserve Bank an item 
payable within the other Reserve Bank's District.
    (b) With respect to an item sent direct, the relationships and the 
rights and liabilities between the sender, the Reserve Bank of its 
District, and the Reserve Bank to which the item is sent are the same as 
if the sender had sent the item to the Reserve Bank of its District and 
that Reserve Bank had sent the item to the other Reserve Bank.
    (c) The Reserve Banks shall receive cash items and other checks at 
par.



Sec. 210.5  Sender's agreement; recovery by Reserve Bank.

    (a) Sender's agreement. The warranties, authorizations, and 
agreements made pursuant to this paragraph may not be disclaimed and are 
made whether or not the item bears an indorsement of the sender. By 
sending an item to a Reserve Bank, the sender:
    (1) Authorizes the sender's Administrative Reserve Bank and any 
other Reserve Bank or collecting bank to which the item is sent to 
handle the item (and authorizes any Reserve Bank that handles settlement 
for the item to make accounting entries), subject to this subpart and to 
the Reserve Banks' operating circulars, and warrants its authority to 
give this authorization;
    (2) Warrants to each Reserve Bank handling the item that:
    (i) The sender is a person entitled to enforce the item or 
authorized to obtain payment of the item on behalf of a person entitled 
to enforce the item; and
    (ii) The item has not been altered; but this paragraph (a)(2) does 
not limit any warranty by a sender or other prior party arising under 
state law or under subpart C of part 229 of this title; and
    (3) Agrees to indemnify each Reserve Bank for any loss of expense 
sustained (including attorneys' fees and expenses of litigation) 
resulting from (i) the sender's lack of authority to make the warranty 
in paragraph (a)(1) of this section; (ii) any action taken by the 
Reserve Bank within the scope of its authority in handling the item; or 
(iii) any warranty made by the Reserve Bank under Sec. 210.6(b) of this 
subpart.
    (b) Recovery by Reserve Bank. If an action or proceeding is brought 
against (or if defense is tendered to) a Reserve Bank that has handled 
an item, based on:
    (1) The alleged failure of the sender to have the authority to make 
the warranty and agreement in paragraph (a)(1) of this section;
    (2) Any action by the Reserve Bank within the scope of its authority 
in handling the item; or
    (3) Any warranty made by the Reserve Bank under Sec. 210.6(b) of 
this subpart, the Reserve Bank may, upon entry of a final judgment or 
decree, recover from the sender the amount of attorneys' fees and other 
expenses of litigation incurred, as well as any amount the Reserve Bank 
is required to pay because of the judgment or decree or the tender of 
defense, together with interest thereon.
    (c) Methods of recovery. (1) The Reserve Bank may recover the amount 
stated in paragraph (b) of this section by charging any account on its 
books that is maintained or used by the sender (or by charging a Reserve 
Bank sender), if--
    (i) The Reserve Bank made seasonable written demand on the sender to 
assume defense of the action or proceeding; and
    (ii) The sender has not made any other arrangement for payment that 
is acceptable to the Reserve Bank.
    (2) The Reserve Bank is not responsible for defending the action or 
proceeding before using this method of recovery. A Reserve Bank that has 
been charged under this paragraph (c) may recover from its sender in the 
manner and under the circumstances set forth in this paragraph (c). A 
Reserve Bank's failure to avail itself of the remedy provided in this 
paragraph (c) does not prejudice its enforcement in any other

[[Page 280]]

manner of the indemnity agreement referred to in paragraph (a)(3) of 
this section.
    (d) Security interest. When a sender sends an item to a Reserve 
Bank, the sender and any prior collecting bank grant to the sender's 
Administrative Reserve Bank a security interest in all of their 
respective assets in the possession of, or held for the account of, any 
Reserve Bank to secure their respective obligations due or to become due 
to the Administrative Reserve Bank under this subpart or subpart C of 
part 229 of this chapter (Regulation CC). The security interest attaches 
when a warranty is breached or any other obligation to the Reserve Bank 
is incurred. If the Reserve Bank, in its sole discretion, deems itself 
insecure and gives notice thereof to the sender or prior collecting 
bank, or if the sender or prior collecting bank suspends payments or is 
closed, the Reserve Bank may take any action authorized by law to 
recover the amount of an obligation, including, but not limited to, the 
exercise of rights of set off, the realization on any available 
collateral, and any other rights it may have as a creditor under 
applicable law.
[45 FR 68634, Oct. 16, 1980, as amended at 51 FR 21745, June 16, 1986; 
Reg. J, 59 FR 22965, May 4, 1994; 62 FR 48171, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48171, Sept. 15, 1997 in Sec. 210.5, 
paragraphs (a)(1) and (c) and the first sentence of paragraph (d) were 
revised, effective Jan. 2, 1998. For the convenience of the user, the 
superseded text follows:

Sec. 210.5  Sender's agreement; recovery by Reserve Bank.

    (a) * * *
    (1) Authorizes the receiving Reserve Bank (and any other Reserve 
Bank or collecting bank to which the item is sent) to handle the item 
subject to this subpart and to the Reserve Banks' operating circulars, 
and warrants its authority to give this authorization;

                                * * * * *

    (c) Methods of recovery. The Reserve Bank may recover the amount 
stated in paragraph (b) of this section by charging any account on its 
books that is maintained or used by the sender (or if the sender is 
another Reserve Bank, by entering a charge against the other Reserve 
Bank through the Interdistrict Settlement Fund), if:
    (1) The Reserve Bank made seasonable written demand on the sender to 
assume defense of the action or proceeding; and
    (2) The sender has not made any other arrangement for payment that 
is acceptable to the Reserve Bank.

The Reserve Bank is not responsible for defending the action or 
proceeding before using this method of recovery. A Reserve Bank that has 
been charged through the Interdistrict Settlement Fund may recover from 
its sender in the manner and under the circumstances set forth in this 
paragraph. A Reserve Bank's failure to avail itself of the remedy 
provided in this paragraph does not prejudice its enforcement in any 
other manner of the indemnity agreement referred to in paragraph (a)(3) 
of this section.
    (d) Security interest. To secure any obligation due or to become due 
to a Reserve Bank by a sender or prior collecting bank under this 
subpart or subpart C of part 229 of this title, the sender and prior 
collecting bank, by sending an item directly or indirectly to the 
Reserve Bank, grant to the Reserve Bank a security interest in all of 
the sender's or prior collecting bank's assets in the possession of, or 
held for the account of, the Reserve Bank. * * *



Sec. 210.6  Status, warranties, and liability of Reserve Bank.

    (a)(1) Status and liability. A Reserve Bank that handles an item 
shall act as agent or subagent of the owner with respect to the item. 
This agency terminates when a Reserve Bank receives final payment for 
the item in actually and finally collected funds, a Reserve Bank makes 
the proceeds available for use by the sender, and the time for 
commencing all actions against the Reserve Bank has expired. A Reserve 
Bank shall not have or assume any liability with respect to an item or 
its proceeds except--
    (i) For the Reserve Bank's own lack of good faith or failure to 
exercise ordinary care;
    (ii) As provided in paragraph (b) of this section; and
    (iii) As provided in subpart C of part 229 of this chapter 
(Regulation CC).
    (2) Reliance on routing designation appearing on item. A Reserve 
Bank may present or send an item based on the routing number or other 
designation of a paying bank or nonbank payor appearing in any form on 
the item when the Reserve Bank receives it. A Reserve Bank shall not be 
responsible for any delay resulting from its acting on

[[Page 281]]

any designation, whether inscribed by magnetic ink or by other means, 
and whether or not the designation acted on is consistent with any other 
designation appearing on the item.
    (b) Warranties and liability. (1) By presenting or sending an item, 
a Reserve Bank warrants to a subsequent collecting bank and to the 
paying bank and any other payor--
    (i) That the Reserve Bank is a person entitled to enforce the item 
(or is authorized to obtain payment of the item on behalf of a person 
who is either entitled to enforce the item or authorized to obtain 
payment on behalf of a person entitled to enforce the item); and
    (ii) That the item has not been altered.
    (2) The Reserve Bank also makes the warranties set forth in 
Sec. 229.34(c) of this chapter, subject to the terms of part 229 of this 
chapter (Regulation CC). The Reserve Bank shall not have or assume any 
other liability to the paying bank or other payor, except for the 
Reserve Bank's own lack of good faith or failure to exercise ordinary 
care.
    (c) Time for commencing action against Reserve Bank. A claim against 
a Reserve Bank for lack of good faith or failure to exercise ordinary 
care shall be barred unless the action on the claim is commenced within 
two years after the claim accrues. A claim accrues on the date when a 
Reserve Bank's alleged failure to exercise ordinary care or to act in 
good faith first results in damages to the claimant. This paragraph does 
not lengthen the time limit for claims under Sec. 229.38(g) of this 
title (which include claims for breach of warranty under Sec. 229.34 of 
this title).
[45 FR 68634, Oct. 16, 1980, as amended at 51 FR 21745, June 16, 1986; 
53 FR 21984, June 13, 1988; Reg. J, 59 FR 22966, May 4, 1994; 62 FR 
48172, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48172, Sept. 15, 1997, Sec. 210.6 was 
amended by revising paragraphs (a)(1) and (b), effective Jan. 2, 1998. 
For the convenience of the user, the superseded text follows:

Sec. 210.6  Status, warranties, and liability of Reserve Bank.

    (a)(1) Status and Liability. A Reserve Bank shall act only as agent 
or subagent of the owner with respect to an item. This agency terminates 
not later than the time the Reserve Bank receives payment for the item 
in actually and finally collected funds and makes the proceeds available 
for use by the sender. A Reserve Bank may be liable to the owner, to the 
sender, to a prior collecting bank, or to the depositary bank's customer 
with respect to a check as defined in 12 CFR 229.2(k). A Reserve Bank 
shall not have or assume any liability with respect to an item or its 
proceeds except for the Reserve Bank's own lack of good faith or failure 
to exercise ordinary care, except as provided in paragraph (b) of this 
section and except as provided in subpart C of part 229.

                                * * * * *

    (b) Warranties and liability. By presenting or sending an item, a 
Reserve Bank warrants to a subsequent collecting bank and to the paying 
bank and any other payor:
    (1) That the Reserve Bank is a person entitled to enforce the item 
(or is authorized to obtain payment of the item on behalf of a person 
who is either:
    (i) Entitled to enforce the item; or
    (ii) Authorized to obtain payment on behalf of a person entitled to 
enforce the item); and
    (2) That the item has not been altered.

The Reserve Bank also makes the warranties set forth in Sec. 229.34(c) 
of this title, subject to the terms of part 229 of this title. The 
Reserve Bank shall not have or assume any other liability to the paying 
bank or other payor, except for the Reserve Bank's own lack of good 
faith or failure to exercise ordinary care.

                                * * * * *



Sec. 210.7  Presenting items for payment.

    (a) Presenting or sending. As provided under State law or as 
otherwise permitted by this section: (1) a Reserve Bank or a subsequent 
collecting bank may present an item for payment or send the item for 
presentment and payment; and
    (2) A Reserve Bank may send an item to a subsequent collecting bank 
with authority to present it for payment or to send it for presentment 
and payment.
    (b) Place of presentment. A Reserve Bank or subsequent collecting 
bank may present an item--
    (1) At a place requested by the paying bank;
    (2) In the case of a check as defined in 12 CFR 229.2(k), in 
accordance with 12 CFR 229.36;

[[Page 282]]

    (3) At a place requested by the nonbank payor, if the item is 
payable by a nonbank payor other than through or at a paying bank;
    (4) Under a special collection agreement consistent with this 
subpart; or
    (5) Through a clearinghouse and subject to its rules and practices.
    (c) Presenting or sending direct. A Reserve Bank or subsequent 
collecting bank may, with respect to an item that may be sent to the 
paying bank or nonbank payor in the Reserve Bank's District--
    (1) Present or send the item direct to the paying bank, or to a 
place requested by the paying bank; or
    (2) If the item is payable by a nonbank payor other than through a 
paying bank, present it direct to the nonbank payor. Documents, 
securities, or other papers accompanying a noncash item shall not be 
delivered to the nonbank payor before the item is paid unless the sender 
specifically authorizes delivery.
    (d) Item sent to another district. A Reserve Bank receiving an item 
that may be sent to a paying bank or nonbank payor in another District 
ordinarily sends the item to the Reserve Bank of the other District, but 
with the agreement of the other Reserve Bank, may present or send the 
item as if it were sent to a paying bank or nonbank payor in its own 
District.
[45 FR 68634, Oct. 16, 1980, as amended at 53 FR 21985, June 13, 1988; 
62 FR 48172, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48172, Sept. 15, 1997, Sec. 210.7 was 
amended by revising paragraphs (c) introductory text and (d), effective 
Jan. 2, 1998. For the convenience of the user, the superseded text 
follows:

Sec. 210.7  Presenting items for payment.

                                * * * * *

    (c) Presenting or sending direct. A Reserve Bank or subsequent 
collecting bank may, with respect to an item payable in the Reserve 
Bank's District:

                                * * * * *

    (d) Item payable in another district. A Reserve Bank receiving an 
item payable in another District ordinarily sends the item to the 
Reserve Bank of the other District, but with the agreement of the other 
Reserve Bank, may present or send the item as if it were payable in its 
own District.



Sec. 210.8  Presenting noncash items for acceptance.

    (a) A Reserve Bank or a subsequent collecting bank may, if 
instructed by the sender, present a noncash item for acceptance in any 
manner authorized by law if--
    (1) The item provides that it must be presented for acceptance;
    (2) The item may be presented elsewhere than at the residence or 
place of business of the payor; or
    (3) The date of payment of the item depends on presentment for 
acceptance.
    (b) Documents accompanying a noncash item shall not be delivered to 
the payor upon acceptance of the item unless the sender specifically 
authorizes delivery. A Reserve Bank shall not have or assume any other 
obligation to present or to send for presentment for acceptance any 
noncash item.
[62 FR 48172, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48172, Sept. 15, 1997, Sec. 210.8 was 
revised, effective Jan. 2, 1998. For the convenience of the user, the 
superseded text follows:

Sec. 210.8  Presenting noncash Items for acceptance.

    A Reserve Bank or a subsequent collecting bank may, if instructed by 
the sender, present a noncash item for acceptance in any manner 
authorized by law if: (a) The item provides that it must be presented 
for acceptance; (b) the item is payable elsewhere than at the residence 
or place of business of the payor; or (c) the date of payment of the 
item depends on presentment for acceptance. Documents accompanying a 
noncash item shall not be delivered to the payor upon acceptance of the 
item unless the sender specifically authorizes delivery. A Reserve Bank 
shall not have or assume any other obligation to present or to send for 
presentment for acceptance any noncash item.



Sec. 210.9  Settlement and payment.

    (a) Settlement through Administrative Reserve Bank. A paying bank 
shall settle for an item under this subpart with its Administrative 
Reserve Bank, whether or not the paying bank received the item from that 
Reserve Bank. A paying bank's settlement with its Administrative Reserve 
Bank is

[[Page 283]]

deemed to be settlement with the Reserve Bank from which the paying bank 
received the item. A paying bank may settle for an item using any 
account on a Reserve Bank's books by agreement with its Administrative 
Reserve Bank, any other Reserve Bank holding the settlement account, and 
the account-holder. The paying bank remains responsible for settlement 
if the Reserve Bank holding the settlement account does not, for any 
reason, obtain settlement in that account.
    (b) Cash items--(1) Settlement obligation. On the day a paying bank 
receives 2 a cash item from a Reserve Bank, it shall settle 
for the item such that the proceeds of the settlement are available to 
its Administrative Reserve Bank by the close of Fedwire on that day, or 
it shall return the item by the later of the close of its banking day or 
the close of Fedwire. If the paying bank fails to settle for or return a 
cash item in accordance with this paragraph (b)(1), it is accountable 
for the amount of the item as of the close of its banking day or the 
close of Fedwire on the day it receives the item, whichever is earlier.
---------------------------------------------------------------------------


    \2\ A paying bank is deemed to receive a cash item on its next 
banking day if it receives the item--
    (1) On a day other than a banking day for it; or
    (2) On a banking day for it, but after a ``cut-off hour'' 
established by it in accordance with state law.
---------------------------------------------------------------------------

    (2) Time of settlement. (i) On the day a paying bank receives a cash 
item from a Reserve Bank, it shall settle for the item so that the 
proceeds of the settlement are available to its Administrative Reserve 
Bank, or return the item, by the latest of--
    (A) The next clock hour that is at least one hour after the paying 
bank receives the item;
    (B) 9:30 a.m. Eastern Time; or
    (C) Such later time as provided in the Reserve Banks' operating 
circulars.
    (ii) If the paying bank fails to settle for or return a cash item in 
accordance with paragraph (b)(2)(i) of this section, it shall be subject 
to any applicable overdraft charges. Settlement under paragraph 
(b)(2)(i) of this section satisfies the settlement requirements of 
paragraph (b)(1) of this section.
    (3) Paying bank closes voluntarily. (i) If a paying bank closes 
voluntarily so that it does not receive a cash item on a day that is a 
banking day for a Reserve Bank, and the Reserve Bank makes the cash item 
available to the paying bank on that day, the paying bank shall either--
    (A) On that day, settle for the item so that the proceeds of the 
settlement are available to its Administrative Reserve Bank, or return 
the item, by the latest of the next clock hour that is at least one hour 
after it ordinarily would have received the item, 9:30 a.m. Eastern 
Time, or such later time as provided in the Reserve Banks' operating 
circulars; or
    (B) On the next day that is a banking day for both the paying bank 
and the Reserve Bank, settle for the item so that the proceeds of the 
settlement are available to its Administrative Reserve Bank by 9:30 a.m. 
Eastern Time on that day or such later time as provided in the Reserve 
Banks' operating circulars and compensate the Reserve Bank for the value 
of the float associated with the item in accordance with procedures 
provided in the Reserve Bank's operating circular.
    (ii) If a paying bank closes voluntarily so that it does not receive 
a cash item on a day that is a banking day for a Reserve Bank, and the 
Reserve Bank makes the cash item available to the paying bank on that 
day, the paying bank is not considered to have received the item until 
its next banking day, but it shall be subject to any applicable 
overdraft charges if it fails to settle for or return the item in 
accordance with paragraph (b)(3)(i) of this section. The settlement 
requirements of paragraphs (b)(1) and (b)(2) of this section do not 
apply to a paying bank that settles in accordance with paragraph 
(b)(3)(i) of this section.
    (4) Reserve Bank closed. (i) If a paying bank receives a cash item 
from a Reserve Bank on a banking day that is not a banking day for the 
Reserve Bank, the paying bank shall--
    (A) Settle for the item so that the proceeds of the settlement are 
available to its Administrative Reserve Bank by the close of Fedwire on 
the Reserve Bank's next banking day, or return the item by midnight of 
the day

[[Page 284]]

it receives the item (if the paying bank fails to settle for or return a 
cash item in accordance with this paragraph (b)(4)(i)(A), it shall 
become accountable for the amount of the item as of the close of its 
banking day on the day it receives the item); and
    (B) Settle for the item so that the proceeds of the settlement are 
available to its Administrative Reserve Bank by 9:30 a.m. Eastern Time 
on the Reserve Bank's next banking day or such later time as provided in 
the Reserve Bank's operating circular, or return the item by midnight of 
the day it receives the item. If the paying bank fails to settle for or 
return a cash item in accordance with this paragraph (b)(4)(i)(B), it 
shall be subject to any applicable overdraft charges. Settlement under 
this paragraph (b)(4)(i)(B) satisfies the settlement requirements of 
paragraph (b)(4)(i)(A) of this section.
    (ii) The settlement requirements of paragraphs (b)(1) and (b)(2) of 
this section do not apply to a paying bank that settles in accordance 
with paragraph (b)(4)(i) of this section.
    (5) Manner of settlement. Settlement with a Reserve Bank under 
paragraphs (b) (1) through (4) of this section shall be made by debit to 
an account on the Reserve Bank's books, cash, or other form of 
settlement to which the Reserve Bank agrees, except that the Reserve 
Bank may, in its discretion, obtain settlement by charging the paying 
bank's account. A paying bank may not set off against the amount of a 
settlement under this section the amount of a claim with respect to 
another cash item, cash letter, or other claim under Sec. 229.34(c) of 
this chapter (Regulation CC) or other law.
    (6) Notice in lieu of return. If a cash item is unavailable for 
return, the paying bank may send a notice in lieu of return as provided 
in Sec. 229.30(f) of this chapter (Regulation CC).
    (c) Noncash items. A Reserve Bank may require the paying or 
collecting bank to which it has presented or sent a noncash item to pay 
for the item in cash, but the Reserve Bank may permit payment by a debit 
to an account maintained or used by the paying or collecting bank on a 
Reserve Bank's books or by any of the following that is in a form 
acceptable to the collecting Reserve Bank: bank draft, transfer of funds 
or bank credit, or any other form of payment authorized by State law.
    (d) Nonbank payor. A Reserve Bank may require a nonbank payor to 
which it has presented an item to pay for it in cash, but the Reserve 
Bank may permit payment in any of the following that is in a form 
acceptable to the Reserve Bank: cashier's check, certified check, or 
other bank draft or obligation.
    (e) Handling of payment. A Reserve Bank may handle a bank draft or 
other form of payment it receives in payment of a cash item as a cash 
item. A Reserve Bank may handle a bank draft or other form of payment it 
receives in payment of a noncash item as either a cash item or a noncash 
item.
    (f) Liability of Reserve Bank. Except as set forth in 12 CFR 
229.35(b), a Reserve Bank shall not be liable for the failure of a 
collecting bank, paying bank, or nonbank payor to pay for an item, or 
for any loss resulting from the Reserve Bank's acceptance of any form of 
payment other than cash authorized in paragraphs (b), (c), and (d) of 
this section. A Reserve Bank that acts in good faith and exercises 
ordinary care shall not be liable for the nonpayment of, or failure to 
realize upon, a bank draft or other form of payment that it accepts 
under paragraphs (b), (c), and (d) of this section.
[45 FR 68634, Oct. 16, 1980, as amended at 49 FR 4200, Feb. 3, 1984; 51 
FR 21745, June 16, 1986; 53 FR 21985, June 13, 1988; 57 FR 46955, Oct. 
14, 1992; Reg. J, 59 FR 22966, May 4, 1994; 62 FR 48172, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48172, Sept. 15, 1997, Sec. 210.9 was 
amended by redesignating paragraphs (a) through (e) as paragraphs (b) 
through (f); adding a new paragraph (a); revising newly redesignated 
paragraphs (b) and (c); and in newly redesignated paragraph (f) removing 
the references ``paragraphs (a), (b), and (c)'' and adding in their 
place ``paragraphs (b), (c), and (d)'', effective Jan. 2, 1998. For the 
convenience of the user, the superseded text follows:

Sec. 210.9  Settlement and payment.

    (a) Cash items. (1) On the day a paying bank receives \2\ a cash 
item directly or indirectly

[[Page 285]]

from a Reserve Bank, it shall settle for the item such that the proceeds 
of the settlement are available to the Reserve Bank by the close of 
Fedwire on that day, or it shall return the item by the later of the 
close of the paying bank's banking day or the close of Fedwire. If the 
paying bank fails to settle for or return a cash item in accordance with 
this paragraph (a)(1), it is accountable for the amount of the item as 
of the close of its banking day or the close of Fedwire on the day it 
receives the item, whichever is earlier.
---------------------------------------------------------------------------


    \2\ A paying bank is deemed to receive a cash item on its next 
banking day if it receives the item:
    (1) On a day other than a banking day for it; or
    (2) On a banking day for it, but after a ``cut-off hour'' 
established by it in accordance with state law.
---------------------------------------------------------------------------

    (2)(i) On the day a paying bank receives a cash item directly or 
indirectly from a Reserve Bank, it shall settle for the item so that the 
proceeds of the settlement are available to the Reserve Bank, or return 
the item, by the latest of:
    (A) The next clock hour that is at least one hour after the paying 
bank receives the item;
    (B) One hour after the scheduled opening of Fedwire; or
    (C) Such later time as provided in the Reserve Bank's operating 
circular.
    (ii) If the paying bank fails to settle for or return a cash item in 
accordance with paragraph (a)(2)(i) of this section, it shall be subject 
to any applicable overdraft charges. Settlement under paragraph 
(a)(2)(i) of this section satisfies the settlement requirements of 
paragraph (a)(1) of this section.
    (3)(i) If a paying bank closes voluntarily on a day that is a 
banking day for a Reserve Bank, and the Reserve Bank makes a cash item 
available to the paying bank on that day, the paying bank shall either:
    (A) On that day, settle for the item so that the proceeds of the 
settlement are available to the Reserve Bank, or return the item, by the 
latest of:
    (1) The next clock hour that is at least one hour after the paying 
bank ordinarily would have received the item;
    (2) One hour after the scheduled opening of Fedwire; or
    (3) Such later time as provided in the Reserve Bank's operating 
circular; or
    (B) On the next day that is a banking day for both the paying bank 
and the Reserve Bank, settle for the item so that the proceeds of the 
settlement are available to the Reserve Bank by the later of:
    (1) One hour after the scheduled opening of Fedwire on that day; or
    (2) Such later time as provided in the Reserve Bank's operating 
circular;

and compensate the Reserve Bank for the value of the float associated 
with the item in accordance with procedures provided in the Reserve 
Bank's operating circular.
    (ii) If a paying bank closes voluntarily on a day that is a banking 
day for a Reserve Bank, and the Reserve Bank makes a cash item available 
to the paying bank on that day, the paying bank is not considered to 
have received the item until its next banking day, but it shall be 
subject to any applicable overdraft charges if it fails to settle for or 
return the item in accordance with paragraph (a)(3)(i) of this section. 
The settlement requirements of paragraphs (a)(1) and (a)(2) of this 
section do not apply to a paying bank that settles in accordance with 
paragraph (a)(3)(i) of this section.
    (4)(i) If a paying bank receives a cash item directly or indirectly 
from a Reserve Bank on a banking day that is not a banking day for the 
Reserve Bank:
    (A) The paying bank shall:
    (1) Settle for the item so that the proceeds of the settlement are 
available to the Reserve Bank by the close of Fedwire on the Reserve 
Bank's next banking day; or
    (2) Return the item by midnight of the day it receives the item.
    If the paying bank fails to settle for or return a cash item in 
accordance with this paragraph (a)(4)(i)(A), it shall become accountable 
for the amount of the item as of the close of its banking day on the day 
it receives the item.
    (B) The paying bank shall:
    (1) Settle for the item so that the proceeds of the settlement are 
available to the Reserve Bank by one hour after the scheduled opening of 
Fedwire on the Reserve Bank's next banking day or such later time as 
provided in the Reserve Bank's operating circular; or
    (2) Return the item by midnight of the day it receives the item.
    If the paying bank fails to settle for or return a cash item in 
accordance with this paragraph (a)(4)(i)(B), it shall be subject to any 
applicable overdraft charges. Settlement under this paragraph 
(a)(4)(i)(B) satisfies the settlement requirements of paragraph 
(a)(4)(i)(A) of this section.
    (ii) The settlement requirements of paragraphs (a)(1) and (a)(2) of 
this section do not apply to a paying bank that settles in accordance 
with paragraph (a)(4)(i) of this section.
    (5) Settlement with a Reserve Bank under paragraphs (a)(1) through 
(4) of this section shall be made by debit to an account on the Reserve 
Bank's books, cash, or other form of settlement to which the Reserve 
Bank agrees, except that the Reserve Bank may, in its discretion, obtain 
settlement by charging the paying bank's reserve or clearing account. A 
paying bank may not set off against the amount of a settlement under 
this section the amount of a claim with respect to another cash item, 
cash letter, or other claim under Sec. 229.34(c) of this title or other 
law.

[[Page 286]]

    (6) If a cash item is unavailable for return, the paying bank may 
send a notice in lieu of return as provided in Sec. 229.30(f) of this 
title.
    (b) Noncash items. A Reserve Bank may require the paying or 
collecting bank to which it has presented or sent a noncash item to pay 
for the item in cash, but the Reserve Bank may permit payment by a debit 
to an account on the Reserve Bank's books or by any of the following 
that is in a form acceptable to the Reserve Bank: bank draft, transfer 
of funds or bank credit, or any other form of payment authorized by 
State law.



Sec. 210.10  Time schedule and availability of credits for cash items and returned checks.

    (a) Each Reserve Bank shall include in its operating circulars a 
time schedule for each of its offices indicating when the amount of any 
cash item or returned check received by it is counted as reserves for 
purposes of part 204 of this chapter (Regulation D) and becomes 
available for use by the sender or paying or returning bank. The Reserve 
Bank that holds the settlement account shall give either immediate or 
deferred credit to a sender, a paying bank, or a returning bank (other 
than a foreign correspondent) in accordance with the time schedule of 
the receiving Reserve Bank. A Reserve Bank ordinarily gives credit to a 
foreign correspondent only when the Reserve Bank receives payment of the 
item in actually and finally collected funds, but, in its discretion, a 
Reserve Bank may give immediate or deferred credit in accordance with 
its time schedule.
    (b) Notwithstanding its time schedule, a Reserve Bank may refuse at 
any time to permit the use of credit given by it for any cash item or 
returned check, and may defer availability after credit is received by 
the Reserve Bank for a period of time that is reasonable under the 
circumstances.
[62 FR 48173, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48173, Sept. 15, 1997, Sec. 210.10 was 
revised, effective Jan. 2, 1998. For the convenience of the user, the 
superseded text follows:

Sec. 210.10  Time schedule and availability of credits for cash items 
          and returned checks.

    (a) Each Reserve Bank shall include in its operating circulars a 
time schedule for each of its offices indicating when the amount of any 
cash item or returned check received by it (or sent direct to another 
Reserve office for the account of that Reserve Bank) is counted as 
reserves for purposes of part 204 of this chapter (Regulation D) and 
becomes available for use by the sender or paying or returning bank. The 
Reserve Bank shall give either immediate or deferred credit in 
accordance with its time schedule to a sender or paying or returning 
bank other than a foreign correspondent. A Reserve Bank ordinarily gives 
credit to a foreign correspondent only when the Reserve Bank receives 
payment of the item in actually and finally collected funds, but, in its 
discretion, a Reserve Bank may give immediate or deferred credit in 
accordance with its time schedule.
    (b) Notwithstanding its time schedule, a Reserve Bank may refuse at 
any time to permit the use of credit given for any cash item or returned 
check, and may defer availability after credit is received by the 
Reserve Bank for a period of time that is reasonable under the 
circumstances.
[53 FR 21985, June 13, 1988]



Sec. 210.11  Availability of proceeds of noncash items; time schedule.

    (a) Availability of credit. A Reserve Bank shall give credit to the 
sender for the proceeds of a noncash item when it receives payment in 
actually and finally collected funds (or advice from another Reserve 
Bank of such payment to it). The amount of the item is counted as 
reserve for purposes of part 204 of this chapter (Regulation D) and 
becomes available for use by the sender when the Reserve Bank receives 
the payment or advice, except as provided in paragraph (b) of this 
section.
    (b) Time schedule. A Reserve Bank may give credit for the proceeds 
of a noncash item subject to payment in actually and finally collected 
funds in accordance with a time schedule included in its operating 
circulars. The time schedule shall indicate when the proceeds of the 
noncash item will be counted as reserve for purposes of part 204 of this 
chapter (Regulation D) and become available for use by the sender. A 
Reserve Bank may, however, refuse at any time to permit the use of 
credit given by it for a noncash item for which the Reserve Bank has not 
yet received payment in actually and finally collected funds.
    (c) Handling of payment. If a Reserve Bank receives, in payment for 
a noncash item, a bank draft or other form of payment that it elects to 
handle as a noncash item, the Reserve

[[Page 287]]

Bank shall neither count the proceeds as reserve for purposes of part 
204 of this chapter (Regulation D) nor make the proceeds available for 
use until it receives payment in actually and finally collected funds.
[45 FR 68634, Oct. 16, 1980, as amended at 62 FR 48173, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48173, Sept. 15, 1997, in Sec. 210.11, 
the last sentence of paragraph (b) was revised, effective Jan. 2, 1998. 
For the convenience of the user, the superseded text follows:

Sec. 210.11  Availability of proceeds of noncash items; time schedule.

                                * * * * *

    (b) * * * A Reserve Bank may, however, refuse at any time to permit 
the use of credit given for a noncash item for which the Reserve Bank 
has not yet received payment in actually and finally collected funds.

                                * * * * *



Sec. 210.12  Return of cash items and handling of returned checks.

    (a) Return of items--(1) Return of cash items handled by Reserve 
Banks. A paying bank that receives a cash item from a Reserve Bank, 
other than for immediate payment over the counter, and that settles for 
the item as provided in Sec. 210.9(b) of this subpart, may, before it 
has finally paid the item, return the item to any Reserve Bank (unless 
its Administrative Reserve Bank directs it to return the item to a 
specific Reserve Bank) in accordance with subpart C of part 229 of this 
chapter (Regulation CC), the Uniform Commercial Code, and the Reserve 
Banks' operating circulars. A paying bank that receives a cash item from 
a Reserve Bank also may return the item prior to settlement, in 
accordance with Sec. 210.9(b) of this subpart and the Reserve Banks' 
operating circulars. The rules or practices of a clearinghouse through 
which the item was presented, or a special collection agreement under 
which the item was presented, may not extend these return times, but may 
provide for a shorter return time.
    (2) Return of checks not handled by Reserve Banks. A paying bank 
that receives a check as defined in Sec. 229.2(k) of this chapter 
(Regulation CC), other than from a Reserve Bank, and that determines not 
to pay the check, may send the returned check to any Reserve Bank 
(unless its Administrative Reserve Bank directs it to send the returned 
check to a specific Reserve Bank) in accordance with subpart C of part 
229 of this chapter (Regulation CC), the Uniform Commercial Code, and 
the Reserve Banks' operating circulars. A returning bank may send a 
returned check to any Reserve Bank (unless its Administrative Reserve 
Bank directs it to send the returned check to a specific Reserve Bank) 
in accordance with subpart C of part 229 of this chapter (Regulation 
CC), the Uniform Commercial Code, and the Reserve Banks' operating 
circulars.
    (b) Handling of returned checks. (1) The following parties, in the 
following order, are deemed to have handled a returned check sent to a 
Reserve Bank under paragraph (a) of this section--
    (i) The paying or returning bank;
    (ii) The paying bank's or returning bank's Administrative Reserve 
Bank;
    (iii) The Reserve Bank that receives the returned check from the 
paying or returning bank (if different from the paying bank's or 
returning bank's Administrative Reserve Bank); and
    (iv) Another Reserve Bank, if any, that receives the returned check 
from a Reserve Bank.
    (2) A Reserve Bank that is not described in paragraph (b)(1) of this 
section is not a party that handles a returned check and is not a 
returning bank with respect to a returned check.
    (3) The identity and order of the parties under paragraph (b)(1) of 
this section determine the relationships and the rights and liabilities 
of the parties under this subpart, part 229 of this chapter (Regulation 
CC), and the Uniform Commercial Code.
    (c) Paying bank's and returning bank's agreement. The warranties, 
authorizations, and agreements made pursuant to this paragraph may not 
be disclaimed and are made whether or not the returned check bears an 
indorsement of the paying bank or returning bank. By sending a returned 
check to a Reserve Bank, the paying bank or returning bank--
    (1) Authorizes the paying or returning bank's Administrative Reserve

[[Page 288]]

Bank, and any other Reserve Bank or returning bank to which the returned 
check is sent, to handle the returned check (and authorizes any Reserve 
Bank that handles settlement for the returned check to make accounting 
entries) subject to this subpart and to the Reserve Banks' operating 
circulars;
    (2) Makes the warranties set forth in Sec. 229.34 of this title (but 
this paragraph does not limit any warranty by a paying or returning bank 
arising under state law); and
    (3) Agrees to indemnify each Reserve Bank for any loss or expense 
(including attorneys' fees and expenses of litigation) resulting from--
    (i) The paying or returning bank's lack of authority to give the 
authorization in paragraph (c)(1) of this section;
    (ii) Any action taken by a Reserve Bank within the scope of its 
authority in handling the returned check; or
    (iii) Any warranty made by the Reserve Bank under 12 CFR 229.34.
    (d) Warranties by Reserve Bank. By handling a returned check under 
this subpart, a Reserve Bank makes the returning bank warranties as set 
forth in Sec. 229.34 of this chapter, subject to the terms of part 229 
of this chapter (Regulation CC). The Reserve Bank shall not have or 
assume any other liability to the transferee returning bank, to any 
subsequent returning bank, to the depository bank, to the owner of the 
check, or to any other person, except for the Reserve Bank's own lack of 
good faith or failure to exercise ordinary care as provided in subpart C 
of part 229 of this title.
    (e) Recovery by Reserve Bank. If an action or proceeding is brought 
against (or if defense is tendered to) a Reserve Bank that has handled a 
returned Check based on--
    (1) The alleged failure of the paying or returning bank to have the 
authority to give the authorization in paragraph (c)(1) of this section;
    (2) Any action by the Reserve Bank within the scope of its authority 
in handling the returned check; or
    (3) Any warranty made by the Reserve Bank under 12 CFR 229.34,

The Reserve Bank may, upon the entry of a final judgment or decree, 
recover from the paying bank or returning bank the amount of attorneys' 
fees and other expenses of litigation incurred, as well as any amount 
the Reserve Bank is required to pay because of the judgment or decree or 
the tender of defense, together with interest thereon.
    (f) Methods of recovery. (1) The Reserve Bank may recover the amount 
stated in paragraph (d) of this section by charging any account on its 
books that is maintained or used by the paying or returning bank (or by 
charging another returning Reserve Bank), if----
    (i) The Reserve Bank made seasonable written demand on the paying or 
returning bank to assume defense of the action or proceeding; and
    (ii) The paying or returning bank has not made any other arrangement 
for payment that is acceptable to the Reserve Bank.
    (2) The Reserve Bank is not responsible for defending the action or 
proceeding before using this method of recovery. A Reserve Bank that has 
been charged under this paragraph (f) may recover from the paying or 
returning bank in the manner and under the circumstances set forth in 
this paragraph (f). A Reserve Bank's failure to avail itself of the 
remedy provided in this paragraph (f) does not prejudice its enforcement 
in any other manner of the indemnity agreement referred to in paragraph 
(c)(3) of this section.
    (g) Reserve Bank's responsibility. A Reserve Bank shall handle a 
returned check, or a notice of nonpayment, in accordance with subpart C 
of part 229 and its operating circular.
    (h) Settlement. A subsequent returning bank or depositary bank shall 
settle with its Administrative Reserve Bank for returned checks in the 
same manner and by the same time as for cash items presented for payment 
under this subpart. Settlement with its Administrative Reserve Bank is 
deemed to be settlement with the Reserve Bank from which the returning 
bank or depositary bank received the item.
    (i) Security interest. When a paying or returning bank sends a 
returned check to a Reserve Bank, the paying bank, returning bank, and 
any prior returning bank grant to the paying bank's or returning bank's 
Administrative Reserve Bank a security interest in all of

[[Page 289]]

their respective assets in the possession of, or held for the account 
of, any Reserve Bank, to secure their respective obligations due or to 
become due to the Administrative Reserve Bank under this subpart or 
subpart C of part 229 of this chapter (Regulation CC). The security 
interest attaches when a warranty is breached or any other obligation to 
the Reserve Bank is incurred. If the Reserve Bank, in its sole 
discretion, deems itself insecure and gives notice thereof to the paying 
bank, returning bank, or prior returning bank, or if the paying bank, 
returning bank, or prior returning bank suspends payments or is closed, 
the Reserve Bank may take any action authorized by law to recover the 
amount of an obligation, including, but not limited to, the exercise of 
rights of set off, the realization on any available collateral, and any 
other rights it may have as a creditor under applicable law.
[53 FR 21985, June 13, 1988, as amended at Reg. J, 59 FR 22966, May 4, 
1994; 62 FR 48173, Sept. 15, 1997]

    Effective Date Note: At 62 FR 48173, Sept. 15, 1997, Sec. 210.12 was 
amended by revising paragraphs (a), (b), and (c)(1), the first sentence 
of paragraph (d), paragraphs (f) and (h), and the first sentence of 
paragraph (i); and by removing the last sentence of paragraph (g), 
effective Jan. 2, 1998. For the convenience of the user, the superseded 
text follows:

Sec. 210.12  Return of cash items and handling of returned checks.

    (a) Return of cash items. A paying bank that receives a cash item 
directly or indirectly from a Reserve Bank, other than for immediate 
payment over the counter, and that pays for the item as provided in 
Sec. 210.9(a) of this subpart, may, before it has finally paid the item, 
return the item in accordance with subpart C of part 229, the Uniform 
Commercial Code, and its Reserve Bank's operating circular. A paying 
bank that receives a cash item directly or indirectly from a Reserve 
Bank also may return the item prior to settlement, in accordance with 
Sec. 210.9(a) and its Reserve Bank's operating circular. The rules or 
practices of a clearinghouse through which the item was presented, or a 
special collection agreement under which the item was presented, may not 
extend these return times, but may provide for a shorter return time.
    (b) Return of checks not handled by Reserve Banks. A paying bank 
that receives a check as defined in 12 CFR 229.2(k), other than directly 
or indirectly from a Reserve Bank, and that determines not to pay the 
check, may send the returned check to its Reserve Bank in accordance 
with subpart C of part 229, the Uniform Commercial Code, and its Reserve 
Bank's operating Circular. A returning bank may send a returned check to 
its Reserve Bank in accordance with subpart C of part 229, the Uniform 
Commercial Code, and its Reserve Bank's operating circular.
    (c) * * *
    (1) Authorizes the receiving Reserve Bank (and any other Reserve 
Bank or returning bank to which the returned check is sent) to handle 
the returned check subject to this subpart and to the Reserve Banks' 
operating circulars;

                                * * * * *

    (d) Warranties by Reserve Bank. By sending a returned check and 
receiving settlement or other consideration for it, a Reserve Bank makes 
the returning bank warranties as set forth in Sec. 229.34 of this title, 
subject to the terms of part 229 of this title. * * *

                                * * * * *

    (f) Methods of recovery. The Reserve Bank may recover the amount 
stated in paragraph (d) of this section by charging any account on its 
books that is maintained or used by the paying or returning bank (or, if 
the returning bank is another Reserve Bank, by entering a charge against 
the other Reserve Bank through the Interdistrict Settlement Fund), if--

    (1) The Reserve Bank made seasonable written demand on the paying or 
returning bank to assume defense of the action or proceeding; and
    (2) The paying or returning bank has not made any other arrangement 
for payment that is acceptable to the Reserve Bank.

The Reserve Bank is not responsible for defending the action or 
proceeding before using this method of recovery. A Reserve Bank that has 
been charged through the Interdistrict Settlement Fund may recover from 
the paying or returning bank in the manner and under the circumstances 
set forth in this paragraph. A Reserve Bank's failure to avail itself of 
the remedy provided in this paragraph does not prejudice its enforcement 
in any other manner of the indemnity agreement referred to in parapraph 
(c)(3) of this section.

                                * * * * *

    (g) * * * A Reserve Bank may permit or require the paying or 
returning bank to send direct to another Reserve Bank a returned check 
with respect to which the depositary bank is located within the other 
Reserve Bank's District, in accordance with Sec. 210.4(b).

[[Page 290]]

    (h) Settlement. A subsequent returning bank or depositary bank shall 
settle for returned checks in the same manner and by the same time as 
for cash items presented for payment under this subpart.

                                * * * * *

    (i) Security interest. To secure any obligation due or to become due 
to a Reserve Bank by a paying bank, returning bank, or prior returning 
bank under this subpart or subpart C of part 229 of this title, the 
paying bank, returning bank, and prior returning bank, by sending a 
returned check directly or indirectly to the Reserve Bank, grant to the 
Reserve Bank a security interest in all of the paying bank's, returning 
bank's, and prior returning bank's assets in the possession of, or held 
for the account of, the Reserve Bank. * * *

                                * * * * *



Sec. 210.13  Unpaid items.

    (a) Right of recovery. If a Reserve Bank does not receive payment in 
actually and finally collected funds for an item, the Reserve Bank shall 
recover by charge-back or otherwise the amount of the item from the 
sender, prior collecting bank, paying bank, or returning bank from or 
through which it was received, whether or not the item itself can be 
sent back. In the event of recovery from such a party, no party, 
including the owner or holder of the item, shall, for the purpose of 
obtaining payment of the amount of the item, have any interest in any 
reserve balance or other funds or property in the Reserve Bank's 
possession of the bank that failed to make payment in actually and 
finally collected funds.
    (b) Suspension or closing of bank. A Reserve Bank shall not pay or 
act on a draft, authorization to charge (including a charge authorized 
by Sec. 210.9(a)(5)), or other order on a reserve balance or other funds 
in its possession for the purpose of settling for items under Sec. 210.9 
or Sec. 210.12 after it receives notice of suspension or closing of the 
bank making the settlement for that bank's own or another's account.
[Reg. J, 59 FR 22966, May 4, 1994]



Sec. 210.14  Extension of time limits.

    If a bank (including a Reserve Bank) or nonbank payor is delayed in 
acting on an item beyond applicable time limits because of interruption 
of communication or computer facilities, suspension of payments by a 
bank or nonbank payor, 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.
[Reg. J, 59 FR 22967, May 4, 1994]



Sec. 210.15  Direct presentment of certain warrants.

    If a Reserve Bank elects to present direct to the payor a bill, 
note, or warrant that is issued and payable by a State or a political 
subdivision and that is a cash item not payable or collectible through a 
bank: (a) Sections 210.9, 210.12, and 210.13 and the operating circulars 
of the Reserve Banks apply to the payor as if it were a paying bank; (b) 
Sec. 210.14 applies to the payor as if it were a bank; and (c) under 
Sec. 210.9 each day on which the payor is open for the regular conduct 
of its affairs or the accommodation of the public is considered a 
banking day.



               Subpart B--Funds Transfers Through Fedwire

    Source:  55 FR 40801, Oct. 5, 1990, unless otherwise noted.



Sec. 210.25  Authority, purpose, and scope.

    (a) Authority and purpose. This subpart provides rules to govern 
funds transfers through Fedwire, and has been issued pursuant to the 
Federal Reserve Act--section 13 (12 U.S.C. 342), paragraph (f) of 
section 19 (12 U.S.C. 464), paragraph 14 of section 16 (12 U.S.C. 
248(o)), and paragraphs (i) and (j) of section 11 (12 U.S.C. 248(i) and 
(j))--and other laws and has the force and effect of federal law. This 
subpart is not a funds-transfer system rule as defined in Section 4A-
501(b) of Article 4A.
    (b) Scope. (1) This subpart incorporates the provisions of Article 
4A set forth in appendix B to this subpart. In the event of an 
inconsistency between the provisions of the sections of this subpart and 
appendix B, to this subpart, the provisions of the sections of this 
subpart shall prevail.

[[Page 291]]

    (2) Except as otherwise provided in paragraphs (b)(3) and (b)(4) of 
this section, this Subpart governs the rights and obligations of:
    (i) Federal Reserve Banks sending or receiving payment orders;
    (ii) Senders that send payment orders directly to a Federal Reserve 
Bank;
    (iii) Receiving banks that receive payment orders directly from a 
Federal Reserve Bank;
    (iv) Beneficiaries that receive payment for payment orders sent to a 
Federal Reserve Bank by means of credit to an account maintained or used 
at a Federal Reserve Bank; and
    (v) Other parties to a funds transfer any part of which is carried 
out through Fedwire to the same extent as if this subpart were 
considered a funds-transfer system rule under Article 4A.
    (3) This subpart governs a funds transfer that is sent through 
Fedwire, as provided in paragraph (b)(2) of this section, even though a 
portion of the funds transfer is governed by the Electronic Fund 
Transfer Act, but the portion of such funds transfer that is governed by 
the Electronic Fund Transfer Act is not governed by this subpart.
    (4) In the event that any portion of this Subpart establishes rights 
or obligations with respect to the availability of funds that are also 
governed by the Expedited Funds Availability Act or the Board's 
Regulation CC, Availability of Funds and Collection of Checks, those 
provisions of the Expedited Funds Availability Act or Regulation CC 
shall apply and the portion of this Subpart, including Article 4A as 
incorporated herein, shall not apply.
    (c) Operating Circulars. Each Federal Reserve Bank shall issue an 
Operating Circular consistent with this Subpart that governs the details 
of its funds-transfer operations and other matters it deems appropriate. 
Among other things, the Operating Circular may: set cut-off hours and 
funds-transfer business days; address available security procedures; 
specify format and media requirements for payment orders; identify 
messages that are not payment orders; and impose charges for funds-
transfer services.
    (d) Govenment senders, receiving banks, and beneficiaries. Except as 
otherwise expressly provided by the statutes of the United States, the 
parties specified in paragraphs (b)(2)(ii) through (v) of this section 
include:
    (1) A department, agency, instrumentality, independent 
establishment, or office of the United States, or a wholly-owned or 
controlled Government corporation;
    (2) An international organization;
    (3) A foreign central bank; and
    (4) A department, agency, instrumentality, independent 
establishment, or office of a foreign government, or a wholly-owned or 
controlled corporation of a foreign government.
[55 FR 40801, Oct. 5, 1990; 55 FR 47428, Nov. 13, 1990]



Sec. 210.26  Definitions.

    As used in this subpart, the following definitions apply:
    (a) Article 4A means article 4A of the Uniform Commercial Code as 
set forth in appendix B of this subpart.
    (b) As of adjustment means a debit or credit, for reserve or 
clearing balance maintenance purposes only, applied to the reserve or 
clearing balance of a bank that either sends a payment order to a 
Federal Reserve Bank, or that receives a payment order from a Federal 
Reserve Bank, in lieu of an interest charge or payment.
    (c) Automated clearing house transfer means any transfer designated 
as an automated clearing house transfer in a Federal Reserve Bank 
Operating Circular.
    (d) Beneficiary's bank has the same meaning as in Article 4A, except 
that:
    (1) A Federal Reserve Bank need not be identified in the payment 
order in order to be the beneficiary's bank; and
    (2) The term includes a Federal Reserve Bank when that Federal 
Reserve Bank is the beneficiary of a payment order.
    (e) Fedwire is the funds-transfer system owned and operated by the 
Federal Reserve Banks that is used primarily for the transmission and 
settlement of payment orders governed by this subpart. Fedwire does not 
include the system for making automated clearing house transfers.
    (f) Interdistrict transfer means a funds transfer involving entries 
to accounts maintained at two Federal Reserve Banks.

[[Page 292]]

    (g) Intradistrict transfer means a funds transfer involving entries 
to accounts maintained at one Federal Reserve Bank.
    (h) Off-line bank means a bank that transmits payment orders to and 
receives payment orders from a Federal Reserve Bank by telephone orally 
or by other means other than electronic data transmission.
    (i) Payment order has the same meaning as in Article 4A, except that 
the term does not include automated clearing house transfers or any 
communication designated in a Federal Reserve Bank Operating Circular 
issued under this Subpart as not being a payment order.
    (j) Sender's account, receiving bank's account, and beneficiary's 
account mean the reserve, clearing, or other funds deposit account at a 
Federal Reserve Bank maintained or used by the sender, receiving bank, 
or beneficiary, respectively.
    (k) Sender's Federal Reserve Bank and receiving bank's Federal 
Reserve Bank mean the Federal Reserve Bank at which the sender or 
receiving bank, respectively, maintains or uses an account.
[55 FR 40801, Oct. 5, 1990; 55 FR 47428, Nov. 13, 1990]



Sec. 210.27  Reliance on identifying number.

    (a) Reliance by a Federal Reserve Bank on number to identify an 
intermediary bank or beneficiary's bank. A Federal Reserve Bank may rely 
on the number in a payment order that identifies the intermediary bank 
or beneficiary's bank, even if it identifies a bank different from the 
bank identified by name in the payment order, if the Federal Reserve 
Bank does not know of such an inconsistency in identification. A Federal 
Reserve Bank has no duty to detect any such inconsistency in 
identification.
    (b) Reliance by a Federal Reserve Bank on number to identify 
beneficiary. A Federal Reserve Bank, acting as a beneficiary's bank, may 
rely on the number in a payment order that identifies the beneficiary, 
even if it identifies a person different from the person identified by 
name in the payment order, if the Federal Reserve Bank does not know of 
such an inconsistency in identification. A Federal Reserve Bank has no 
duty to detect any such inconsistency in identification.



Sec. 210.28  Agreement of sender.

    (a) Payment of sender's obligation to a Federal Reserve Bank. A 
sender (other than a Federal Reserve Bank), by maintaining or using an 
account with a Federal Reserve Bank, authorizes the sender's Federal 
Reserve Bank to obtain payment for the sender's payment orders by 
debiting the amount of the payment order from the sender's account.
    (b) Overdrafts. (1) A sender does not have the right to an overdraft 
in the sender's account. In the event an overdraft is created, the 
overdraft shall be due and payable immediately without the need for a 
demand by the Federal Reserve Bank, at the earliest of the following 
times:
    (i) At the end of the funds-transfer business day;
    (ii) At the time the Federal Reserve Bank, in its sole discretion, 
deems itself insecure and gives notice thereof to the sender; or
    (iii) At the time the sender suspends payments or is closed.
    (2) The sender shall have in its account, at the time the overdraft 
is due and payable, a balance of actually and finally collected funds 
sufficient to cover the aggregate amount of all its obligations to the 
Federal Reserve Bank, whether the obligations result from the execution 
of a payment order or otherwise.
    (3) To secure any overdraft, as well as any other obligation due or 
to become due to its Federal Reserve Bank, each sender, by sending a 
payment order to a Federal Reserve Bank that is accepted by the Federal 
Reserve Bank, grants to the Federal Reserve Bank a security interest in 
all of the sender's assets in the possession of, or held for the account 
of, the Federal Reserve Bank. The security interest attaches when an 
overdraft, or any other obligation to the Federal Reserve Bank, becomes 
due and payable.
    (4) A Federal Reserve Bank may take any action authorized by law to 
recover the amount of an overdraft that is due and payable, including, 
but not

[[Page 293]]

limited to, the exercise of rights of set off, the realization on any 
available collateral, and any other rights it may have as a creditor 
under applicable law.
    (5) If a sender, other than a government sender described in 
Sec. 210.25(d), incurs an overdraft in its account as a result of a 
debit to the account by a Federal Reserve Bank under paragraph (a) of 
this section, the account will be subject to any applicable overdraft 
charges, regardless of whether the overdraft has become due and payable. 
A Federal Reserve Bank may debit a sender's account under paragraph (a) 
of this section immediately on acceptance of the payment order.
    (c) Review of payment orders. A sender, by sending a payment order 
to a Federal Reserve Bank, agrees that for the purposes of sections 4A-
204(a) and 4A-304 of Article 4A, a reasonable time to notify a Federal 
Reserve Bank of the relevant facts concerning an unauthorized or 
erroneously executed payment order is within 30 calendar days after the 
sender receives notice that the payment order was accepted or executed, 
or that the sender's account was debited with respect to the payment 
order.
[55 FR 40801, Oct. 5, 1990, as amended at 57 FR 46956, Oct. 14, 1992]



Sec. 210.29  Agreement of receiving bank.

    (a) Payment. A receiving bank (other than a Federal Reserve Bank) 
that receives a payment order from its Federal Reserve Bank authorizes 
that Federal Reserve Bank to pay for the payment order by crediting the 
amount of the payment order to the receiving bank's account.
    (b) Off-line banks. An off-line bank that does not expressly notify 
its Federal Reserve Bank in writing that it maintains an account for 
another bank warrants to that Federal Reserve Bank that the off-line 
bank does not act as an intermediary bank or a beneficiary's bank with 
respect to payment orders received through Fedwire for a beneficiary 
that is a bank.
[55 FR 40801, Oct. 5, 1990; 55 FR 47428, Nov. 13, 1990]



Sec. 210.30  Payment orders.

    (a) Rejection. A sender shall not send a payment order to a Federal 
Reserve Bank unless authorized to do so by the Federal Reserve Bank. A 
Federal Reserve Bank may reject, or impose conditions that must be 
satisfied before it will accept, a payment order for any reason.
    (b) Selection of an intermediary bank. For an interdistrict 
transfer, a Federal Reserve Bank is authorized and directed to execute a 
payment order through another Federal Reserve Bank. A sender shall not 
send a payment order to a Federal Reserve Bank that requires the Federal 
Reserve Bank to issue a payment order to an intermediary bank (other 
than a Federal Reserve Bank) unless that intermediary bank is designated 
in the sender's payment order. A sender shall not send to a Federal 
Reserve Bank a payment order instructing use by a Federal Reserve Bank 
of a funds-transfer system or means of transmission other than Fedwire, 
unless the Federal Reserve Bank agrees with the sender in writing to 
follow such instructions.
    (c) Same-day execution. A sender shall not issue a payment order 
that instructs a Federal Reserve Bank to execute the payment order on a 
funds-transfer business day that is later than the funds-transfer 
business day on which the order is received by the Federal Reserve Bank, 
unless the Federal Reserve Bank agrees with the sender in writing to 
follow such instructions.



Sec. 210.31  Payment by a Federal Reserve Bank to a receiving bank or beneficiary.

    (a) Payment to a receiving bank. Payment of a Federal Reserve Bank's 
obligation to pay a receiving bank (other than a Federal Reserve Bank) 
occurs at the earlier of the time when the amount of the payment order 
is credited to the receiving bank's account or when the payment order is 
sent to the receiving bank.
    (b) Payment to a beneficiary. Payment by a Federal Reserve Bank to a 
beneficiary of a payment order, where the Federal Reserve Bank is the 
beneficiary's bank, occurs at the earlier of the time when the amount of 
the payment order is credited to the beneficiary's account or when 
notice of the credit is sent to the beneficiary.

[[Page 294]]



Sec. 210.32  Federal Reserve Bank liability; payment of interest.

    (a) Damages. In connection with its handling of a payment order 
under this subpart, a Federal Reserve Bank shall not be liable to a 
sender, receiving bank, beneficiary, or other Federal Reserve Bank, 
governed by this subpart, for any damages other than those payable under 
Article 4A. A Federal Reserve Bank shall not agree to be liable to a 
sender, receiving bank, beneficiary, or other Federal Reserve Bank for 
consequential damages under section 4A-305(d) of Article 4A.
    (b) Payment of interest. (1) A Federal Reserve Bank, in its 
discretion, may satisfy its obligation, or that of another Federal 
Reserve Bank, to pay compensation in the form of interest under Article 
4A by--
    (i) Providing an as of adjustment to its sender, its receiving bank, 
or its beneficiary, as provided in the Federal Reserve Bank's Operating 
Circular, in an amount equal to the amount on which interest is to be 
calcuated multiplied by the number of days for which interest is to be 
calculated; or
    (ii) Paying compensation in the form of interest to its sender, its 
receiving bank, its beneficiary, or another party to the funds transfer 
that is entitled to such payment, in an amount that is calculated in 
accordance with section 4A-506 of Article 4A.
    (2) If the sender or receiving bank that is the recipient of an as 
of adjustment or an interest payment is not the party entitled to 
compensation under Article 4A, the sender or receiving bank shall pass 
through the benefit of the as of adjustment or interest payment by 
making an interest payment, as of the day the as of adjustment or 
interest payment is effected, to the party entitled to compensation. The 
interest payment that is made to the party entitled to compensation 
shall not be less than the value of the as of adjustment or interest 
payment that was provided by the Federal Reserve Bank to the sender or 
receiving bank. The party entitled to compensation may agree to accept 
compensation in a form other than a direct interest payment, provided 
that such an alternative form of compensation is not less than the value 
of the interest payment that otherwise would be made.
    (c) Nonwaiver of right of recovery. Nothing in this subpart or any 
Operating Circular issued hereunder shall constitute, or be construed as 
constituting, a waiver by a Federal Reserve Bank of a cause of action 
for recovery under any applicable law of mistake and restitution.

                   Appendix A to Subpart B--Commentary

    The Commentary provides background material to explain the intent of 
the Board of Governors of the Federal Reserve System (Board) in adopting 
a particular provision in the subpart and to help readers interpret that 
provision. In some comments, examples are offered. The Commentary 
constitutes an official Board interpretation of subpart B of this part. 
Commentary is not provided for every provision of subpart B of this 
part, as some provisions are self-explanatory.

              Section 210.25--Authority, Purpose, and Scope

    (a) Authority and purpose. Section 210.25(a) states that the purpose 
of subpart B of this part is to provide rules to govern funds transfers 
through Fedwire and recites the Board's rulemaking authority for this 
subpart. Subpart B of this part is federal law and is not a ``funds-
transfer system rule,'' as defined in section 4A-501(b) of Article 4A, 
Funds Transfers, of the Uniform Commercial Code (UCC), as set forth in 
appendix B of this subpart. Certain provisions of Article 4A may not be 
varied by a funds-transfer system rule, but under section 4A-107, 
regulations of the Board and Operating Circulars of the Federal Reserve 
Banks supersede inconsistent provisions of Article 4A to the extent of 
the inconsistency. In addition, regulations of the Board may preempt 
inconsistent provisions of state law. Accordingly, subpart B of this 
part supersedes or preempts inconsistent provisions of state law. It 
does not affect state law governing funds transfers that does not 
conflict with the provisions of subpart B of this part, such as Article 
4A, as enacted in any state, as it applies to parties to funds transfers 
through Fedwire whose rights are not governed by subpart B of this part.
    (b) Scope. (1) Subpart B of this part incorporates the provisions of 
Article 4A set forth in appendix B of this subpart. The provisions set 
forth expressly in the sections of subpart B of this part supersede or 
preempt any inconsistent provisions of Article 4A as set forth in 
appendix B of this subpart or as enacted in any state. The official 
comments to Article 4A are not incorporated in subpart B of this part or 
this Commentary to subpart B of this part, but the official comments may

[[Page 295]]

be useful in interpreting Article 4A. Because section 4A-105 refers to 
other provisions of the Uniform Commercial Code, e.g., definitions in 
Article 1 of the UCC, these other provisions of the UCC, as approved by 
the National Conference of Commissioners on Uniform State Laws and the 
American Law Institute, from time to time, are also incorporated in 
subpart B of this part. Subpart B of this part applies to any party to a 
Fedwire funds transfer that is in privity with a Federal Reserve Bank. 
These parties include a sender (bank or nonbank) that sends a payment 
order directly to a Federal Reserve Bank, a receiving bank that receives 
a payment order directly from a Federal Reserve Bank, and a beneficiary 
that receives credit to an account that it uses or maintains at a 
Federal Reserve Bank for a payment order sent to a Federal Reserve Bank. 
Other parties to a funds transfer are covered by this subpart to the 
same extent that this subpart would apply to them if this subpart were a 
``funds-transfer system rule'' under Article 4A that selected subpart B 
of this part as the governing law.
    (2) The scope of the applicability of a funds-transfer system rule 
under Article 4A is specified in section 4A-501(b), and the scope of the 
choice of law provision is specified in section 4A-507(c). Under section 
4A-507(c), a choice of law provision is binding on the participants in a 
funds-transfer system and certain other parties having notice that the 
funds-transfer system might be used for the funds transfer and of the 
choice of law provision. The Uniform Commercial Code provides that a 
person has notice when the person has actual knowledge, receives 
notification or has reason to know from all the facts and circumstances 
known to the person at the time in question. (See UCC section 1-
201(25).) However, under sections 4A-507(b) and 4A-507(d), a choice of 
law by agreement of the parties takes precedence over a choice of law 
made by funds-transfer system rule.
    (3) If originators, receiving banks, and beneficiaries that are not 
in privity with a Federal Reserve Bank have the notice contemplated by 
section 4A-507(c) or if those parties agree to be bound by subpart B of 
this part, subpart B of this part generally would apply to payment 
orders between those remote parties, including participants in other 
funds-transfer systems. For example, a funds transfer may be sent from 
an originator's bank through a funds-transfer system other than Fedwire 
to a receiving bank which, in turn, sends a payment order through 
Fedwire to execute the funds transfer. Similarly, a Federal Reserve Bank 
may execute a payment order through Fedwire to a receiving bank that 
sends it through a funds-transfer system other than Fedwire to a 
beneficiary's bank. In the first example, if the originator's bank has 
notice that Fedwire may be used to effect part of the funds transfer, 
the sending of the payment order through the other funds-transfer system 
to the receiving bank will be governed by subpart B of this part unless 
the parties to the payment order have agreed otherwise. In the second 
example, if the beneficiary's bank has notice that Fedwire may be used 
to effect part of the funds transfer, the sending of the payment order 
to the beneficiary's bank through the other funds-transfer system will 
be governed by subpart B of this part unless the parties have agreed 
otherwise. In both cases, the other funds-transfer system's rules would 
also apply to, at a minimum, the portion of these funds transfers going 
through that funds-transfer system. Because subpart B of this part is 
federal law, to the extent of any inconsistency, subpart B of this part 
will take precedence over any funds-transfer system rule applicable to 
the remote sender or receiving bank or to a Federal Reserve Bank. If 
remote parties to a funds transfer, a portion of which is sent through 
Fedwire, have expressly selected by agreement a law other than subpart B 
of this part under section 4A-507(b), subpart B of this part would not 
take precedence over the choice of law made by the agreement even though 
the remote parties had notice that Fedwire may be used and of the 
governing law. (See 4A-507(d)). In addition, subpart B of this part 
would not apply to a funds transfer sent through another funds-transfer 
system where no Federal Reserve Bank handles the funds transfer, even 
though settlement for the funds transfer is made by means of a separate 
net settlement or funds transfer through Fedwire.
    (4) Under section 4A-108, Article 4A does not apply to a funds 
transfer, any part of which is governed by the Electronic Fund Transfer 
Act (15 U.S.C. 1693 et seq.). Fedwire funds transfers to or from 
consumer accounts are exempt from the Electronic Fund Transfer Act and 
Regulation E (12 CFR part 205). A funds transfer from a consumer 
originator or a funds transfer to a consumer beneficiary could be 
carried out in part through Fedwire and in part through an automated 
clearing house or other means that is subject to the Electronic Fund 
Transfer Act or Regulation E. In these cases, subpart B of this part 
would not govern the portion of the funds transfer that is governed by 
the Electronic Fund Transfer Act or Regulation E. (See Commentary to 
Sec. 210.26(i) ``payment order''.)
    (5) Finally, section 4A-404(a) provides that a beneficiary's bank is 
obliged to pay the amount of a payment order to the beneficiary on the 
payment date unless acceptance of the payment order occurs on the 
payment date after the close of the funds-transfer business day of the 
bank. The Expedited Funds Availability Act provides that funds received 
by a bank by wire transfer shall be available for withdrawal not later 
than than

[[Page 296]]

the banking day after the business day on which such funds are received 
(12 U.S.C. 4002(a)). That Act also preempts any provision of state law 
that was not effective on September 1, 1989 that is inconsistent with 
that Act or its implementing Regulation CC (12 CFR part 229). 
Accordingly, the Expedited Funds Availability Act and Regulation CC may 
preempt section 4A-404(a) as enacted in any state. In order to ensure 
that section 4A-404(a), or other provisions of Article 4A, as 
incorporated in subpart B of this part, do not take precedence over 
provisions of the Expedited Funds Availability Act, this section 
provides that where subpart B of this part establishes rights or 
obligations that are also governed by the Expedited Funds Availability 
Act or Regulation CC, the Expedited Funds Availability Act or Regulation 
CC provision shall apply and subpart B of this part shall not apply.
    (c) Operating Circulars. The Federal Reserve Banks issue Operating 
Circulars consistent with this Subpart that contain additional 
provisions applicable to payment orders sent through Fedwire. Under 
section 4A-107, these Operating Circulars supersede inconsistent 
provisions of Article 4A, as set forth in appendix B and as enacted in 
any state. These Operating Circulars are not funds-transfer system 
rules, but, by their terms, they are binding on all parties covered by 
this Subpart.
    (d) Government senders, receiving banks, and beneficiaries. This 
section clarifies that unless a statute of the United States provides 
otherwise, subpart B of this part applies to governmental entities, 
domestic or foreign, including foreign central banks as specified in 
paragraph (b)(1) of this section.

                       Section 210.26--Definitions

    Article 4A defines many terms (e.g., beneficiary, intermediary bank, 
receiving bank, security procedure) used in this subpart. These terms 
are defined or listed in sections 4A-103 through 4A-105. These terms, 
such as the term bank (defined in section 4A-105(d)(2)), may differ from 
comparable terms in subpart A of this part. As subpart B of this part 
incorporates consistent provisions of Article 4A, it incorporates these 
definitions unless these terms are expressly defined otherwise in 
subpart B of this part. This subpart modifies the definitions of two 
Article 4A terms, beneficiary's bank and payment order. This subpart 
also defines terms not defined in Article 4A.
    (a) Article 4A. Article 4A means the version of that article of the 
Uniform Commercial Code set forth in appendix B of this subpart. It does 
not refer to the law of any particular state unless the context 
indicates otherwise. Subject to the express provisions of this Subpart, 
this version of Article 4A is incorporated into this Subpart and made 
federal law for transactions covered by this subpart.
    (b) As of adjustments. As of adjustments are memorandum items that 
affect a bank's reserve or clearing balance for the purpose of meeting 
the required balance, but do not represent funds that can be used for 
other purposes. As discussed in the Commentary to Sec. 210.32(b), the 
Federal Reserve Banks generally provide as of adjustments as a means of 
effecting interest payments or charges.
    (d) Beneficiary's bank. The definition of beneficiary's bank in 
subpart B of this part differs from the section 4A-103(a)(3) definition. 
The subpart B definition clarifies that where a Federal Reserve Bank 
functions as the beneficiary's bank, it need not be identified in the 
payment order as the beneficiary's bank and that a Federal Reserve Bank 
that receives a payment order as beneficiary is also the beneficiary's 
bank with respect to that payment order.
    (e) Fedwire. Fedwire refers to the funds-transfer system owned and 
operated by the Federal Reserve Banks that is governed by this Subpart. 
The term does not refer to any particular computer, telecommunications 
facility, or funds transfer, but to the system as a whole, which may 
include transfers by telephone or by written instrument in particular 
circumstances. Fedwire does not include the system used for automated 
clearing house transfers.
    (h) Off-line bank. Most Fedwire payment orders are transmitted 
electronically from a sender to a Federal Reserve Bank or from a Federal 
Reserve Bank to a receiving bank. Banks transmitting payment orders to 
Federal Reserve Banks electronically are often referred to as on-line 
banks. Some Fedwire participants, however, transmit payment orders to a 
Federal Reserve Bank or receive payment orders from a Federal Reserve 
Bank orally by telephone, or, in unusual circumstances, in writing. A 
bank that does not use either a terminal or a computer that links it 
electronically to a terminal or computer at its Federal Reserve Bank to 
send payment orders through Fedwire is an off-line bank.
    (i) Payment order. (1) The definition of payment order in subpart B 
of this part differs from the section 4A-103(a)(1) definition. The 
subpart B definition clarifies that, for the purposes of subpart B of 
this part, automated clearing house transfers and certain messages that 
are transmitted through Fedwire are not payment orders. Federal Reserve 
Banks and banks participating in Fedwire send various types of messages, 
relating to payment orders or to other matters, through Fedwire that are 
not intended to be payment orders. Under the subpart B definition, these 
messages, and messages involved with automated clearing house transfers, 
are not payment orders and therefore are not governed by this subpart. 
The Operating Circulars of the Federal Reserve Banks

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specify those messages that may be transmitted through Fedwire but that 
are not payment orders.
    (2) In some cases, messages sent through Fedwire, such as certain 
requests for credit transfer, may be payment orders under Article 4A, 
but are not treated as payment orders under subpart B because they are 
not an instruction to a Federal Reserve Bank to pay money.
    (3) This subpart and Article 4A govern a payment order even though 
the originator's or beneficiary's account may be a consumer account 
established primarily for personal, family, or household purposes. Under 
section 4A-108, Article 4A does not apply to a funds transfer any part 
of which is governed by the Electronic Fund Transfer Act. That Act, and 
Regulation E implementing it, do not apply to funds transfers through 
Fedwire (see 15 U.S.C. 1693a(6)(B) and 12 CFR 205.3(b)). Thus, this 
Subpart applies to all funds transfers through Fedwire even though some 
such transfers involve originators or beneficiaries that are consumers. 
(See also Sec. 210.25(b) and accompanying Commentary.)

             Section 210.27--Reliance on Identifying Number

    (a) Reliance by a Federal Reserve Bank on number to identify 
intermediary bank or beneficiary's bank. Section 4A-208 provides that a 
receiving bank, such as a Federal Reserve Bank, may rely on the routing 
number of an intermediary bank or the beneficiary's bank specified in a 
payment order as identifying the appropriate intermediary bank or 
beneficiary's bank, even if the payment order identifies another bank by 
name, provided that the receiving bank does not know of the 
inconsistency. Under section 4A-208(b)(2), if the sender of the payment 
order is not a bank, a receiving bank may rely on the number only if the 
sender had notice before the receiving bank accepted the sender's order 
that the receiving bank might rely on the number. This section provides 
this notice to entities that are not banks, such as the Department of 
the Treasury, that send payment orders directly to a Federal Reserve 
Bank.
    (b) Reliance by a Federal Reserve Bank on number to identify 
beneficiary. Section 4A-207 provides that a beneficiary's bank, such as 
a Federal Reserve Bank, may rely on the number identifying a 
beneficiary, such as the beneficiary's account number, specified in a 
payment order as identifying the appropriate beneficiary, even if the 
payment order identifies another beneficiary by name, provided that the 
beneficiary's bank does not know of the inconsistency. Under section 4A-
207(c)(2), if the originator is not a bank, an originator is not obliged 
to pay for a payment order if the originator did not have notice that 
the beneficiary's bank might rely on the identifying number and the 
person paid on the basis of the identifying number was not entitled to 
receive payment. This section of subpart B provides this notice to 
entities that are not banks, such as the Department of the Treasury, 
that are originators of payment orders sent directly by the originators 
to a Federal Reserve Bank, where that Federal Reserve Bank or another 
Federal Reserve Bank is the beneficiary's bank (see also section 4A-
402(b), providing that a sender must pay a beneficiary's bank for a 
payment order accepted by the beneficiary's bank).

                   Section 210.28--Agreement of Sender

    (a) Payment of sender's obligation to a Federal Reserve Bank. When a 
sender issues a payment order to a Federal Reserve Bank and the Federal 
Reserve Bank issues a conforming order implementing the sender's payment 
order, under section 4A-403, the sender is indebted to the Federal 
Reserve Bank for the amount of the payment order. A sender, other than a 
Federal Reserve Bank, that maintains or uses an account at a Federal 
Reserve Bank authorizes the Federal Reserve Bank to debit that account 
so that the Federal Reserve Bank can obtain payment for the payment 
order.
    (b) Overdrafts. (1) In some cases, debits to a sender's account will 
create an overdraft in the sender's account. The Board and the Federal 
Reserve Banks have established policies concerning when a Federal 
Reserve Bank will permit a bank to incur an overdraft in its account at 
a Federal Reserve Bank. These policies do not give a bank or other 
sender a right to an overdraft in its account. Subpart B clarifies that 
a sender does not have a right to such an overdraft. If an overdraft 
arises, it becomes immediately due and payable at the earliest of: The 
end of the funds-transfer business day of the Federal Reserve Bank; the 
time the Federal Reserve Bank in its sole discretion, deems itself 
insecure and gives notice to the sender; or the time that the sender 
suspends payments or is closed by governmental action, such as the 
appointment of a receiver. In some cases, a Federal Reserve Bank extends 
its Fedwire operations beyond its cut-off hour for that funds-transfer 
business day. For the purposes of this section, unless otherwise 
specified by the Federal Reserve Bank making such an extension, an 
overdraft becomes due and payable at the end of the extended operating 
hours. An overdraft becomes due and payable prior to a Federal Reserve 
Bank's cut-off hour if the Federal Reserve Bank deems itself insecure 
and gives notice to the sender. Notice that the Federal Reserve Bank 
deems itself insecure may be given in accordance with the provisions on 
notice in section 1-201(27) of the UCC, in accordance with any other 
applicable law or agreement, or by any other reasonable means. An 
overdraft also becomes due and payable at the time that a bank is closed 
or suspends payments. For example,

[[Page 298]]

an overdraft becomes due and payable if a receiver is appointed for the 
bank or the bank is prevented from making payments by governmental 
order. The Federal Reserve Bank need not make demand on the sender for 
the overdraft to become due and payable.
    (2) A sender must cover any overdraft and any other obligation of 
the sender to the Federal Reserve Bank by the time the overdraft becomes 
due and payable. By sending a payment order to a Federal Reserve Bank, 
the sender grants a security interest to the Federal Reserve Bank in any 
assets of the sender held by, or for the account of, the Federal Reserve 
Bank in order to secure all obligations due or to become due to the 
Federal Reserve Bank. The security interest attaches when the overdraft, 
or other obligation of the sender to the Federal Reserve Bank, becomes 
due and payable. The security interest does not apply to assets held by 
the sender as custodian or trustee for the sender's customers or third 
parties. Once an overdraft is due and payable, a Federal Reserve Bank 
may exercise its right of set off, liquidate collateral, or take other 
similar action to satisfy the overdrafting bank's obligation owed to the 
Federal Reserve Bank.
    (c) Review of payment orders. (1) Under section 4A-204, a receiving 
bank is required to refund the principal amount of an unauthorized 
payment order that the sender was not obliged to pay, together with 
interest on the refundable amount calculated from the date that the 
receiving bank received payment to the date of the refund. The sender is 
not entitled to compensation in the form of interest if the sender fails 
to exercise ordinary care to determine that the order was not authorized 
and to notify the receiving bank within a reasonable period of time 
after the sender receives a notice that the payment order was accepted 
or that the sender's account was debited with respect to the order. 
Similarly, under section 4A-304, if a sender of a payment order that was 
erroneously executed does not notify the bank receiving the payment 
order within a reasonable time, the bank is not liable to the sender for 
compensation in the form of interest on any amount refundable to the 
sender. Section 210.28(c) establishes 30 calendar days as the reasonable 
period of time for the purposes of these provisions of Article 4A.
    (2) Section 4A-505 provides that a customer must object to a debit 
to its account by a receiving bank within one year after the customer 
received notification reasonably identifying the payment order. Subpart 
B of this part does not vary this one-year period.

               Section 210.29--Agreement of Receiving Bank

    (b) Off-line banks. (1) Generally, an on-line bank receiving payment 
orders or advices of credit for payment orders from a Federal Reserve 
Bank receives the payment orders or advices electronically a short time 
after the corresponding payment orders are received by the on-line 
bank's Federal Reserve Bank. An off-line bank receiving payment orders 
or advices of credit from a Federal Reserve Bank does not have an 
electronic connection with the Federal Reserve Bank; therefore, payment 
orders or advices are transmitted either by telephone on the day the 
payment order is received by the receiving bank's Federal Reserve Bank, 
or sent by courier or mail along with the off-line bank's daily account 
statement, on the funds-transfer business day following the day the 
payment order is received by the off-line bank's Federal Reserve Bank.
    (2) Under section 4A-302(a)(2), a Federal Reserve Bank must transmit 
payment orders at a time and by means reasonably necessary to allow 
payment to the beneficiary on the payment date, or as soon thereafter as 
is feasible. Therefore, where an off-line receiving bank is an 
intermediary bank or beneficiary's bank in a payment order, its Federal 
Reserve Bank attempts to transmit the payment order to the off-line bank 
by telephone on the day the payment order is received by the Federal 
Reserve Bank. A Federal Reserve Bank can generally identify these 
payment orders from the type code designated in the payment order.
    (3) Under section 4A-404(b), if a payment order instructs payment to 
the account of the beneficiary, the beneficiary's bank must notify the 
beneficiary of the receipt of a payment order before midnight of the 
next funds-transfer business day following the payment date. Where an 
off-line bank is the beneficiary of a payment order, telephone notice by 
a Federal Reserve Bank to the off-line bank of the receipt of the order 
is not required by Article 4A because the Federal Reserve Bank sends 
notice to the off-line bank by courier or mail, along with its daily 
account statement, on the day after the payment order is received by its 
Federal Reserve Bank. Payment orders for which an off-line bank is the 
beneficiary of the order are generally designated as settlement 
transactions.
    (4) If an off-line receiving bank maintains an account for another 
bank, the off-line bank may receive payment orders designated as 
settlement transactions in its capacity as beneficiary's bank or 
intermediary bank. A Federal Reserve Bank cannot readily distinguish 
these payment orders from settlement transactions for which the off-line 
bank is the beneficiary of the order. If an off-line bank notifies its 
Federal Reserve Bank that it maintains an account for another bank, the 
Federal Reserve Bank will attempt to telephone the off-line bank with 
respect to all settlement transactions received by such bank, whether 
the off-line bank is the beneficiary, the beneficiary's bank, or an 
intermediary bank in the payment order. Under this section, an off-line 
bank that does not expressly notify its Federal Reserve Bank in

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writing that it maintains an account for another bank warrants to that 
Federal Reserve Bank that it does not act as an intermediary bank or a 
beneficiary's bank for a bank beneficiary with respect to payment orders 
received through Fedwire.

                     Section 210.30--Payment Orders

    (a) Rejection. (1) A sender must make arrangements with its Federal 
Reserve Bank before it can send payment orders to the Federal Reserve 
Bank. Federal Reserve Banks reserve the right to reject or impose 
conditions on the acceptance of payment orders for any reason. For 
example, a Federal Reserve Bank might reject or impose conditions on 
accepting a payment order where a sender does not have sufficient funds 
in its account with the Federal Reserve Bank to cover the amount of the 
sender's payment order and other obligations of the sender due or to 
become due to the Federal Reserve Bank. A Federal Reserve Bank may 
require a sender to execute a written agreement concerning security 
procedures or other matters before the sender may send payment orders to 
the Federal Reserve Bank.
    (b) Selection of an intermediary bank. (1) Under section 4A-302, if 
a receiving bank (other than a beneficiary's bank), such as a Federal 
Reserve Bank, accepts a payment order, it must issue a payment order 
that complies with the sender's order. The sender's order may include 
instructions concerning an intermediary bank to be used that must be 
followed by a receiving bank (see section 4A-302(a)(1)). If the sender 
does not designate any intermediary bank in its payment order, the 
receiving bank may select an intermediary bank through which the 
sender's payment order can be expeditiously issued to the beneficiary's 
bank so long as the receiving bank exercises ordinary care in selecting 
the intermediary bank (see section 4A-302(b)).
    (2) This section provides that in an interdistrict transfer, a 
Federal Reserve Bank is authorized and directed to select another 
Federal Reserve Bank as an intermediary bank. A sender may, however, 
instruct a Federal Reserve Bank to use a particular intermediary bank by 
designating that bank as the bank to be credited by that Federal Reserve 
Bank (or the second Federal Reserve Bank in the case of an interdistrict 
transfer) in its payment order, in which case the Federal Reserve Bank 
will send the payment order to that bank if that bank receives payment 
orders through Fedwire. A sender may not instruct a Federal Reserve Bank 
to use its discretion to select an intermediary bank other than a 
Federal Reserve Bank or an intermediary bank designated by the sender. 
In addition, a sender may not instruct a Federal Reserve Bank to use a 
funds-transfer system or means of transmission other than Fedwire unless 
the sender and the Federal Reserve Bank agree in writing to the use of 
the funds-transfer system or means of transmission.
    (c) Same-day execution. Generally, Fedwire is a same-day value 
transfer system through which funds may be transferred from the 
originator to the beneficiary on the same funds-transfer business day. A 
sender may not send a payment order to a Federal Reserve Bank that 
specifies an execution date or payment date later than the day on which 
the payment order is issued, unless the sender of the order and the 
Federal Reserve Bank agree in writing to the arrangement.

Section 210.31--Payment by a Federal Reserve Bank to a Receiving Bank or 
                               Beneficiary

    (a) Payment to a receiving bank. (1) Under section 4A-402, when a 
Federal Reserve Bank executes a sender's payment order by issuing a 
conforming order to a receiving bank that accepts the payment order, the 
Federal Reserve Bank must pay the receiving bank the amount of the 
payment order. Section 210.29(a) authorizes a Federal Reserve Bank to 
make the payment by crediting the account at the Federal Reserve Bank 
maintained or used by the receiving bank. Section 210.31(a) provides 
that the payment occurs when the receiving bank's account is credited or 
when the payment order is sent by the Federal Reserve Bank to the 
receiving bank, whichever is earlier. Ordinarily, payment will occur 
during the funds-transfer business day a short time after the payment 
order is received, even if the receiving bank is an off-line bank. This 
credit is final and irrevocable when made and constitutes final 
settlement under section 4A-403. Payment does not waive a Federal 
Reserve Bank's right of recovery under the applicable law of mistake and 
restitution (see Sec. 210.32(c)), affect a Federal Reserve Bank's right 
to apply the funds to any obligation due or to become due to the Federal 
Reserve Bank, or affect legal process or claims by third parties on the 
funds.
    (2) This section on final payment does not apply to settlement for 
payment orders between Federal Reserve Banks. These payment orders are 
settled by other means.
    (b) Payment to a beneficiary. Section 210.31(b) specifies when a 
Federal Reserve Bank makes payment to a beneficiary for which it is the 
beneficiary's bank. As in the case of payment to a receiving bank, this 
payment occurs at the earlier of the time that the Federal Reserve Bank 
credits the beneficiary's account or sends notice of the credit to the 
beneficiary, and is final and irrevocable when made.

[[Page 300]]

   Section 210.32--Federal Reserve Bank Liability; Payment of Interest

    (a) Damages. (1) Under section 4A-305(d), damages for failure of a 
receiving bank to execute a payment order that it was obligated to 
execute by express agreement are limited to expenses in the transaction 
and incidental expenses and interest and do not include additional 
damages, including consequential damages, unless they are provided for 
in an express written agreement of the receiving bank. This section 
clarifies that in connection with the handling of payment orders, 
Federal Reserve Banks may not agree to be liable for consequential 
damages under this provision and shall not be liable for damages other 
than those that may be due under Article 4A to parties governed by this 
subpart. Any agreement in conflict with these provisions would not be 
effective, because it would be in violation of subpart B.
    (2) This section does not affect the ability of other parties to a 
funds transfer to agree to be liable for consequential damages, the 
liability of a Federal Reserve Bank under section 4A-404, or the 
liability to parties governed by subpart B for claims not based on the 
handling of a payment order under this subpart.
    (b) Payment of interest. (1) Under Article 4A, a Federal Reserve 
Bank may be required to pay compensation in the form of interest to 
another party in connection with its handling of a funds transfer. For 
example, payment of compensation in the form of interest is required in 
certain situations pursuant to sections 4A-204 (relating to refund of 
payment and duty of customer to report with respect to unauthorized 
payment order), 4A-209 (relating to acceptance of payment order), 4A-210 
(relating to rejection of payment order), 4A-304 (relating to duty of 
sender to report erroneously executed payment order), 4A-305 (relating 
to liability for late or improper execution or failure to execute a 
payment order), 4A-402 (relating to obligation of sender to pay 
receiving bank), and 4A-404 (relating to obligation of beneficiary's 
bank to pay and give notice to beneficiary). Under section 4A-506(a), 
the amount of such interest may be determined by agreement between the 
sender and receiving bank or by funds-transfer system rule. If there is 
no such agreement, under section 4A-506(b), the amount of interest is 
based on the Federal funds rate. Section 210.32(b) provides two means by 
which Federal Reserve Banks may provide compensation in the form of 
interest: through an as of adjustment or through an explicit interest 
payment.
    (2) An as of adjustment is a memorandum credit or debit that is 
applied to the reserve or clearing balance of the bank that sent the 
payment order to, or received the payment order from, a Federal Reserve 
Bank. Federal Reserve Banks generally provide as of adjustments to 
correct errors and recover float. An as of adjustment differs from a 
debit or credit to an account in that it does not affect the actual 
balance of the account; it only affects the balance for reserve or 
clearing balance computation purposes. These adjustments affect the 
level of reserve or clearing balances that the bank must fund by other 
means and are therefore an effective substitute for explicit interest 
payments.
    (3) A party that sent or received a payment order from a Federal 
Reserve Bank may be unable to make use of an as of adjustment as 
compensation in lieu of explicit interest. For example, if the sender or 
receiving bank is not subject to reserve requirements or satisfies its 
reserve requirements with vault cash, the as of adjustment could not be 
used to free other balances for investment. A Federal Reserve Bank may, 
in its discretion, provide compensation by an explicit interest payment 
rather than through an as of adjustment. Interest would be calculated in 
accordance with the procedures specified in section 4A-506(b). 
Similarly, compensation in the form of explicit interest will be paid to 
Government senders, receiving banks, or beneficiaries described in 
Sec. 210.25(d) if they are entitled to interest under this subpart. A 
Federal Reserve Bank may also, in its discretion, pay explicit interest 
directly to a remote party to a Fedwire funds transfer that is entitled 
to interest, rather than providing compensation to its direct sender or 
receiving bank.
    (4) If a bank that received an as of adjustment or explicit interest 
payment is not the party entitled to interest compensation under Article 
4A, the bank must pass the benefit of the as of adjustment or explicit 
interest payment made to it to the party that is entitled to 
compensation in the form of interest from a Federal Reserve Bank. The 
benefit may be passed on either in the form of a direct payment of 
interest or in the form of a compensating balance, if the party entitled 
to interest agrees to accept the other form of compensation, and the 
value of the compensating balance is at least equivalent to the value of 
the explicit interest that otherwise would have been provided.
    (c) Nonwaiver of right of recovery. Several sections of Article 4A 
allow for a party to a funds transfer to make a claim pursuant to the 
applicable law of mistake and restitution. Nothing in subpart B of this 
part or any Operating Circular issued under subpart B of this part 
waives any such claim. A Federal Reserve Bank, however, may waive such a 
claim by express written agreement in order to settle litigation or for 
other purposes.
[55 FR 40801, Oct. 5, 1990; 55 FR 47428, Nov. 13, 1990]

[[Page 301]]

          Appendix B to Subpart B--Article 4A, Funds Transfers

                 Part 1--Subject Matter and Definitions

                       Section 4A-101. Short Title

    This Article may be cited as Uniform Commercial Code--Funds 
Transfers.

                     Section 4A-102. Subject Matter

    Except as otherwise provided in section 4A-108, this Article applies 
to funds transfers defined in section 4A-104.

               Section 4A-103. Payment Order--Definitions

    (a) In this Article:
    (1) Payment order means an instruction of a sender to a receiving 
bank, transmitted orally, electronically, or in writing, to pay, or to 
cause another bank to pay, a fixed or determinable amount of money to a 
beneficiary if:
    (i) The instruction does not state a condition to payment to the 
beneficiary other than time of payment,
    (ii) The receiving bank is to be reimbursed by debiting an account 
of, or otherwise receiving payment from, the sender, and
    (iii) The instruction is transmitted by the sender directly to the 
receiving bank or to an agent, funds-transfer system, or communication 
system for transmittal to the receiving bank.
    (2) Beneficiary means the person to be paid by the beneficiary's 
bank.
    (3) Beneficiary's bank means the bank identified in a payment order 
in which an account of the beneficiary is to be credited pursuant to the 
order or which otherwise is to make payment to the beneficiary if the 
order does not provide for payment to an account.
    (4) Receiving bank means the bank to which the sender's instruction 
is addressed.
    (5) Sender means the person giving the instruction to the receiving 
bank.
    (b) If an instruction complying with subsection (a)(1) is to make 
more than one payment to a beneficiary, the instruction is a separate 
payment order with respect to each payment.
    (c) A payment order is issued when it is sent to the receiving bank.

               Section 4A-104. Funds Transfer--Definitions

    In this Article:
    (a) Funds transfer means the series of transactions, beginning with 
the originator's payment order, made for the purpose of making payment 
to the beneficiary of the order. The term includes any payment order 
issued by the originator's bank or an intermediary bank intended to 
carry out the originator's payment order. A funds transfer is completed 
by acceptance by the beneficiary's bank of a payment order for the 
benefit of the beneficiary of the originator's payment order.
    (b) Intermediary bank means a receiving bank other than the 
originator's bank or the beneficiary's bank.
    (c) Originator means the sender of the first payment order in a 
funds transfer.
    (d) Originator's bank means (i) the receiving bank to which the 
payment order of the originator is issued if the originator is not a 
bank, or (ii) the originator if the originator is a bank.

                    Section 4A-105. Other Definitions

    (a) In this Article:
    (1) Authorized account means a deposit account of a customer in a 
bank designated by the customer as a source of payment of payment orders 
issued by the customer to the bank. If a customer does not so designate 
an account, any account of the customer is an authorized account if 
payment of a payment order from that account is not inconsistent with a 
restriction on the use of that account.
    (2) Bank means a person engaged in the business of banking and 
includes a savings bank, savings and loan association, credit union, and 
trust company. A branch or separate office of a bank is a separate bank 
for purposes of this Article.
    (3) Customer means a person, including a bank, having an account 
with a bank or from whom a bank has agreed to receive payment orders.
    (4) Funds-transfer business day of a receiving bank means the part 
of a day during which the receiving bank is open for the receipt, 
processing, and transmittal of payment orders and cancellations and 
amendments of payment orders.
    (5) Funds-transfer system means a wire transfer network, automated 
clearing house, or other communication system of a clearing house or 
other association of banks through which a payment order by a bank may 
be transmitted to the bank to which the order is addressed.
    (6) Good faith means honesty in fact and the observance of 
reasonable commercial standards of fair dealing.
    (7) Prove with respect to a fact means to meet the burden of 
establishing the fact (section 1-201(8)).
    (b) Other definitions applying to this Article and the sections in 
which they appear are:
Acceptance...................................................Sec. 4A-209
Beneficiary..................................................Sec. 4A-103
Beneficiary's bank...........................................Sec. 4A-103
Executed.....................................................Sec. 4A-301
Execution date...............................................Sec. 4A-301
Funds transfer...............................................Sec. 4A-104
Funds-transfer system rule...................................Sec. 4A-501
Intermediary bank............................................Sec. 4A-104
Originator...................................................Sec. 4A-104
Originator's bank............................................Sec. 4A-104
Payment by beneficiary's bank to beneficiary.................Sec. 4A-405
   Payment by originator to beneficiary.........................Sec. 4A-

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                                                                     406
Payment by sender to receiving bank..........................Sec. 4A-403
Payment date.................................................Sec. 4A-401
Payment order................................................Sec. 4A-103
Receiving bank...............................................Sec. 4A-103
Security procedure...........................................Sec. 4A-201
Sender.......................................................Sec. 4A-103
    (c) The following definitions in Article 4 apply to this Article:

Clearing house................................................Sec. 4-104
Item..........................................................Sec. 4-104
Suspends payments.............................................Sec. 4-104
    (d) In addition Article 1 contains general definitions and 
principles of construction and interpretation applicable throughout this 
Article.

             Section 4A-106. Time Payment Order is Received

    (a) The time of receipt of a payment order or communication 
canceling or amending a payment order is determined by the rules 
applicable to receipt of a notice stated in section 1-201(27). A 
receiving bank may fix a cut-off time or times on a funds-transfer 
business day for the receipt and processing of payment orders and 
communications canceling or amending payment orders. Different cut-off 
times may apply to payment orders, cancellations, or amendments, or to 
different categories of payment orders, cancellations, or amendments. A 
cut-off time may apply to senders generally or different cut-off times 
may apply to different senders or categories of payment orders. If a 
payment order or communication canceling or amending a payment order is 
received after the close of a funds-transfer business day or after the 
appropriate cut-off time on a funds-transfer business day, the receiving 
bank may treat the payment order or communication as received at the 
opening of the next funds-transfer business day.
    (b) If this Article refers to an execution date or payment date or 
states a day on which a receiving bank is required to take action, and 
the date or day does not fall on a funds-transfer business day, the next 
day that is a funds-transfer business day is treated as the date or day 
stated, unless the contrary is stated in this Article.

   Section 4A-107. Federal Reserve Regulations and Operating Circulars

    Regulations of the Board of Governors of the Federal Reserve System 
and operating circulars of the Federal Reserve Banks supersede any 
inconsistent provision of this Article to the extent of the 
inconsistency.

 Section 4A-108. Exclusion of Consumer Transactions Governed by Federal 
                                   Law

    This Article does not apply to a funds transfer any part of which is 
governed by the Electronic Fund Transfer Act of 1978 (title XX, Pub. L. 
95-630, 92 Stat. 3728, 15 U.S.C. 1693 et seq.) as amended from time to 
time.

              Part 2--Issue and Acceptance of Payment Order

                   Section 4A-201. Security Procedure

    Security procedure means a procedure established by agreement of a 
customer and a receiving bank for the purpose of (i) verifying that a 
payment order or communication amending or canceling a payment order is 
that of the customer, or (ii) detecting error in the transmission or the 
content of the payment order or communication. A security procedure may 
require the use of algorithms or other codes, identifying words or 
numbers, encryption, callback procedures, or similar security devices. 
Comparison of a signature on a payment order or communication with an 
authorized specimen signature of the customer is not by itself a 
security procedure.

         Section 4A-202. Authorized and Verified Payment Orders

    (a) A payment order received by the receiving bank is the authorized 
order of the person identified as sender if that person authorized the 
order or is otherwise bound by it under the law of agency.
    (b) If a bank and its customer have agreed that the authenticity of 
payment orders issued to the bank in the name of the customer as sender 
will be verified pursuant to a security procedure, a payment order 
received by the receiving bank is effective as the order of the 
customer, whether or not authorized, if (i) the security procedure is a 
commercially reasonable method of providing security against 
unauthorized payment orders, and (ii) the bank proves that it accepted 
the payment order in good faith and in compliance with the security 
procedure and any written agreement or instruction of the customer 
restricting acceptance of payment orders issued in the name of the 
customer. The bank is not required to follow an instruction that 
violates a written agreement with the customer or notice of which is not 
received at a time and in a manner affording the bank a reasonable 
opportunity to act on it before the payment order is accepted.
    (c) Commercial reasonableness of a security procedure is a question 
of law to be determined by considering the wishes of the customer 
expressed to the bank, the circumstances of the customer known to the 
bank, including the size, type, and frequency of payment orders normally 
issued by the customer to the bank, alternative security procedures 
offered to the customer, and security procedures in general use by 
customers and receiving banks similarly situated. A security procedure 
is deemed to be commercially reasonable if (i) the security procedure 
was chosen by the customer after the bank

[[Page 303]]

offered, and the customer refused, a security procedure that was 
commercially reasonable for that customer, and (ii) the customer 
expressly agreed in writing to be bound by any payment order, whether or 
not authorized, issued in its name and accepted by the bank in 
compliance with the security procedure chosen by the customer.
    (d) The term sender in this Article includes the customer in whose 
name a payment order is issued if the order is the authorized order of 
the customer under subsection (a), or it is effective as the order of 
the customer under subsection (b).
    (e) This section applies to amendments and cancellations of payment 
orders to the same extent it applies to payment orders.
    (f) Except as provided in this section and in section 4A-203(a)(1), 
rights and obligations arising under this section or section 4A-203 may 
not be varied by agreement.

   Section 4A-203. Unenforceability of Certain Verified Payment Orders

    (a) If an accepted payment order is not, under section 4A-202(a), an 
authorized order of a customer identified as sender, but is effective as 
an order of the customer pursuant to section 4A-202(b), the following 
rules apply:
    (1) By express written agreement, the receiving bank may limit the 
extent to which it is entitled to enforce or retain payment of the 
payment order.
    (2) The receiving bank is not entitled to enforce or retain payment 
of the payment order if the customer proves that the order was not 
caused, directly or indirectly, by a person (i) entrusted at any time 
with duties to act for the customer with respect to payment orders or 
the security procedure, or (ii) who obtained access to transmitting 
facilities of the customer or who obtained, from a source controlled by 
the customer and without authority of the receiving bank, information 
facilitating breach of the security procedure, regardless of how the 
information was obtained or whether the customer was at fault. 
Information includes any access device, computer software, or the like.
    (b) This section applies to amendments of payment orders to the same 
extent it applies to payment orders.

 Section 4A-204. Refund of Payment and Duty of Customer To Report with 
                  Respect to Unauthorized Payment Order

    (a) If a receiving bank accepts a payment order issued in the name 
of its customer as sender which is (i) not authorized and not effective 
as the order of the customer under section 4A-202, or (ii) not 
enforceable, in whole or in part, against the customer under section 4A-
203, the bank shall refund any payment of the payment order received 
from the customer to the extent the bank is not entitled to enforce 
payment and shall pay interest on the refundable amount calculated from 
the date the bank received payment to the date of the refund. However, 
the customer is not entitled to interest from the bank on the amount to 
be refunded if the customer fails to exercise ordinary care to determine 
that the order was not authorized by the customer and to notify the bank 
of the relevant facts within a reasonable time not exceeding 90 days 
after the date the customer received notification from the bank that the 
order was accepted or that the customer's account was debited with 
respect to the order. The bank is not entitled to any recovery from the 
customer on account of a failure by the customer to give notification as 
stated in this section.
    (b) Reasonable time under subsection (a) may be fixed by agreement 
as stated in section 1-204(1), but the obligation of a receiving bank to 
refund payment as stated in subsection (a) may not otherwise be varied 
by agreement.

                Section 4A-205. Erroneous Payment Orders

    (a) If an accepted payment order was transmitted pursuant to a 
security procedure for the detection of error and the payment order (i) 
erroneously instructed payment to a beneficiary not intended by the 
sender, (ii) erroneously instructed payment in an amount greater than 
the amount intended by the sender, or (iii) was an erroneously 
transmitted duplicate of a payment order previously sent by the sender, 
the following rules apply:
    (1) If the sender proves that the sender or a person acting on 
behalf of the sender pursuant to section 4A-206 complied with the 
security procedure and that the error would have been detected if the 
receiving bank had also complied, the sender is not obliged to pay the 
order to the extent stated in paragraphs (2) and (3).
    (2) If the funds transfer is completed on the basis of an erroneous 
payment order described in clause (i) or (iii) of subsection (a), the 
sender is not obliged to pay the order and the receiving bank is 
entitled to recover from the beneficiary any amount paid to the 
beneficiary to the extent allowed by the law governing mistake and 
restitution.
    (3) If the funds transfer is completed on the basis of a payment 
order described in clause (ii) of subsection (a), the sender is not 
obliged to pay the order to the extent the amount received by the 
beneficiary is greater than the amount intended by the sender. In that 
case, the receiving bank is entitled to recover from the beneficiary the 
excess amount received to the extent allowed by the law governing 
mistake and restitution.
    (b) If (i) the sender of an erroneous payment order described in 
subsection (a) is not obliged to pay all or part of the order, and (ii) 
the sender receives notification from the receiving bank that the order 
was accepted

[[Page 304]]

by the bank or that the sender's account was debited with respect to the 
order, the sender has a duty to exercise ordinary care, on the basis of 
information available to the sender, to discover the error with respect 
to the order and to advise the bank of the relevant facts within a 
reasonable time, not exceeding 90 days, after the bank's notification 
was received by the sender. If the bank proves that the sender failed to 
perform that duty, the sender is liable to the bank for the loss the 
bank proves it incurred as a result of the failure, but the liability of 
the sender may not exceed the amount of the sender's order.
    (c) This section applies to amendments to payment orders to the same 
extent it applies to payment orders.

Section 4A-206. Transmission of Payment Order Through Funds-Transfer or 
                       Other Communication System

    (a) If a payment order addressed to a receiving bank is transmitted 
to a funds-transfer system or other third-party communication system for 
transmittal to the bank, the system is deemed to be an agent of the 
sender for the purpose of transmitting the payment order to the bank. If 
there is a discrepancy between the terms of the payment order 
transmitted to the system and the terms of the payment order transmitted 
by the system to the bank, the terms of the payment order of the sender 
are those transmitted by the system. This section does not apply to a 
funds-transfer system of the Federal Reserve Banks.
    (b) This section applies to cancellations and amendments of payment 
orders to the same extent it applies to payment orders.

              Section 4A-207. Misdescription of Beneficiary

    (a) Subject to subsection (b), if, in a payment order received by 
the beneficiary's bank, the name, bank account number, or other 
identification of the beneficiary refers to a nonexistent or 
unidentifiable person or account, no person has rights as a beneficiary 
of the order and acceptance of the order cannot occur.
    (b) If a payment order received by the beneficiary's bank identifies 
the beneficiary both by name and by an identifying or bank account 
number and the name and number identify different persons, the following 
rules apply:
    (1) Except as otherwise provided in subsection (c), if the 
beneficiary's bank does not know that the name and number refer to 
different persons, it may rely on the number as the proper 
identification of the beneficiary of the order. The beneficiary's bank 
need not determine whether the name and number refer to the same person.
    (2) If the beneficiary's bank pays the person identified by name or 
knows that the name and number identify different persons, no person has 
rights as beneficiary except the person paid by the beneficiary's bank 
if that person was entitled to receive payment from the originator of 
the funds transfer. If no person has rights as beneficiary, acceptance 
of the order cannot occur.
    (c) If (i) a payment order described in subsection (b) is accepted, 
(ii) the originator's payment order described the beneficiary 
inconsistently by name and number, and (iii) the beneficiary's bank pays 
the person identified by number as permitted by subsection (b)(1), the 
following rules apply:
    (1) If the originator is a bank, the originator is obliged to pay 
its order.
    (2) If the originator is not a bank and proves that the person 
identified by number was not entitled to receive payment from the 
originator, the originator is not obliged to pay its order unless the 
originator's bank proves that the originator, before acceptance of the 
originator's order, had notice that payment of a payment order issued by 
the originator might be made by the beneficiary's bank on the basis of 
an identifying or bank account number even if it identifies a person 
different from the named beneficiary. Proof of notice may be made by any 
admissible evidence. The originator's bank satisfies the burden of proof 
if it proves that the originator, before the payment order was accepted, 
signed a writing stating the information to which the notice relates.
    (d) In a case governed by subsection (b)(1), if the beneficiary's 
bank rightfully pays the person identified by number and that person was 
not entitled to receive payment from the originator, the amount paid may 
be recovered from that person to the extent allowed by the law governing 
mistake and restitution as follows:
    (1) If the originator is obliged to pay its payment order as stated 
in subsection (c), the originator has the right to recover.
    (2) If the originator is not a bank and is not obliged to pay its 
payment order, the originator's bank has the right to recover.

  Section 4A-208. Misdescription of Intermediary Bank or Beneficiary's 
                                  Bank

    (a) This subsection applies to a payment order identifying an 
intermediary bank or the beneficiary's bank only by an identifying 
number.
    (1) The receiving bank may rely on the number as the proper 
identification of the intermediary or beneficiary's bank and need not 
determine whether the number identifies a bank.
    (2) The sender is obliged to compensate the receiving bank for any 
loss and expenses incurred by the receiving bank as a result of its 
reliance on the number in executing or attempting to execute the order.
    (b) This subsection applies to a payment order identifying an 
intermediary bank or the beneficiary's bank both by name and an

[[Page 305]]

identifying number if the name and number identify different persons.
    (1) If the sender is a bank, the receiving bank may rely on the 
number as the proper identification of the intermediary or beneficiary's 
bank if the receiving bank, when it executes the sender's order, does 
not know that the name and number identify different persons. The 
receiving bank need not determine whether the name and number refer to 
the same person or whether the number refers to a bank. The sender is 
obliged to compensate the receiving bank for any loss and expenses 
incurred by the receiving bank as a result of its reliance on the number 
in executing or attempting to execute the order.
    (2) If the sender is not a bank and the receiving bank proves that 
the sender, before the payment order was accepted, had notice that the 
receiving bank might rely on the number as the proper identification of 
the intermediary or beneficiary's bank even if it identifies a person 
different from the bank identified by name, the rights and obligations 
of the sender and the receiving bank are governed by subsection (b)(1), 
as though the sender were a bank. Proof of notice may be made by any 
admissible evidence. The receiving bank satisfies the burden of proof if 
it proves that the sender, before the payment order was accepted, signed 
a writing stating the information to which the notice relates.
    (3) Regardless of whether the sender is a bank, the receiving bank 
may rely on the name as the proper identification of the intermediary or 
beneficiary's bank if the receiving bank, at the time it executes the 
sender's order, does not know that the name and number identify 
different persons. The receiving bank need not determine whether the 
name and number refer to the same person.
    (4) If the receiving bank knows that the name and number identify 
different persons, reliance on either the name or the number in 
executing the sender's payment order is a breach of the obligation 
stated in section 4A-302(a)(1).

               Section 4A-209. Acceptance of Payment Order

    (a) Subject to subsection (d), a receiving bank other than the 
beneficiary's bank accepts a payment order when it executes the order.
    (b) Subject to subsections (c) and (d), a beneficiary's bank accepts 
a payment order at the earliest of the following times:
    (1) When the bank (i) pays the beneficiary as stated in section 4A-
405(a) or 4A-405(b), or (ii) notifies the beneficiary of receipt of the 
order or that the account of the beneficiary has been credited with 
respect to the order unless the notice indicates that the bank is 
rejecting the order or that funds with respect to the order may not be 
withdrawn or used until receipt of payment from the sender of the order;
    (2) When the bank receives payment of the entire amount of the 
sender's order pursuant to section 4A-403(a)(1) or 4A-403(a)(2); or
    (3) The opening of the next funds-transfer business day of the bank 
following the payment date of the order if, at that time, the amount of 
the sender's order is fully covered by a withdrawable credit balance in 
an authorized account of the sender or the bank has otherwise received 
full payment from the sender, unless the order was rejected before that 
time or is rejected within (i) one hour after that time, or (ii) one 
hour after the opening of the next business day of the sender following 
the payment date if that time is later. If notice of rejection is 
received by the sender after the payment date and the authorized account 
of the sender does not bear interest, the bank is obliged to pay 
interest to the sender on the amount of the order for the number of days 
elapsing after the payment date to the day the sender receives notice or 
learns that the order was not accepted, counting that day as an elapsed 
day. If the withdrawable credit balance during that period falls below 
the amount of the order, the amount of interest payable is reduced 
accordingly.
    (c) Acceptance of a payment order cannot occur before the order is 
received by the receiving bank. Acceptance does not occur under 
subsection (b)(2) or (b)(3) if the beneficiary of the payment order does 
not have an account with the receiving bank, the account has been 
closed, or the receiving bank is not permitted by law to receive credits 
for the beneficiary's account.
    (d) A payment order issued to the originator's bank cannot be 
accepted until the payment date if the bank is the beneficiary's bank, 
or the execution date if the bank is not the beneficiary's bank. If the 
originator's bank executes the originator's payment order before the 
execution date or pays the beneficiary of the originator's payment order 
before the payment date and the payment order is subsequently canceled 
pursuant to section 4A-211(b), the bank may recover from the beneficiary 
any payment received to the extent allowed by the law governing mistake 
and restitution.

               Section 4A-210. Rejection of Payment Order

    (a) A payment order is rejected by the receiving bank by a notice of 
rejection transmitted to the sender orally, electronically, or in 
writing. A notice of rejection need not use any particular words and is 
sufficient if it indicates that the receiving bank is rejecting the 
order or will not execute or pay the order. Rejection is effective when 
the notice is given if transmission is by a means that is reasonable in 
the circumstances. If notice of

[[Page 306]]

rejection is given by a means that is not reasonable, rejection is 
effective when the notice is received. If an agreement of the sender and 
receiving bank establishes the means to be used to reject a payment 
order, (i) any means complying with the agreement is reasonable and (ii) 
any means not complying is not reasonable unless no significant delay in 
receipt of the notice resulted from the use of the noncomplying means.
    (b) This subsection applies if a receiving bank other than the 
beneficiary's bank fails to execute a payment order despite the 
existence on the execution date of a withdrawable credit balance in an 
authorized account of the sender sufficient to cover the order. If the 
sender does not receive notice of rejection of the order on the 
execution date and the authorized account of the sender does not bear 
interest, the bank is obliged to pay interest to the sender on the 
amount of the order for the number of days elapsing after the execution 
date to the earlier of the day the order is canceled pursuant to section 
4A-211(d) or the day the sender receives notice or learns that the order 
was not executed, counting the final day of the period as an elapsed 
day. If the withdrawable credit balance during that period falls below 
the amount of the order, the amount of interest is reduced accordingly.
    (c) If a receiving bank suspends payments, all unaccepted payment 
orders issued to it are deemed rejected at the time the bank suspends 
payments.
    (d) Acceptance of a payment order precludes a later rejection of the 
order. Rejection of a payment order precludes a later acceptance of the 
order.

       Section 4A-211. Cancellation and Amendment of Payment Order

    (a) A communication of the sender of a payment order canceling or 
amending the order may be transmitted to the receiving bank orally, 
electronically, or in writing. If a security procedure is in effect 
between the sender and the receiving bank, the communication is not 
effective to cancel or amend the order unless the communication is 
verified pursuant to the security procedure or the bank agrees to the 
cancellation or amendment.
    (b) Subject to subsection (a), a communication by the sender 
canceling or amending a payment order is effective to cancel or amend 
the order if notice of the communication is received at a time and in a 
manner affording the receiving bank a reasonable opportunity to act on 
the communication before the bank accepts the payment order.
    (c) After a payment order has been accepted, cancellation or 
amendment of the order is not effective unless the receiving bank agrees 
or a funds-transfer system rule allows cancellation or amendment without 
agreement of the bank.
    (1) With respect to a payment order accepted by a receiving bank 
other than the beneficiary's bank, cancellation or amendment is not 
effective unless a conforming cancellation or amendment of the payment 
order issued by the receiving bank is also made.
    (2) With respect to a payment order accepted by the beneficiary's 
bank, cancellation or amendment is not effective unless the order was 
issued in execution of an unauthorized payment order, or because of a 
mistake by a sender in the funds transfer which resulted in the issuance 
of a payment order (i) that is a duplicate of a payment order previously 
issued by the sender, (ii) that orders payment to a beneficiary not 
entitled to receive payment from the originator, or (iii) that orders 
payment in an amount greater than the amount the beneficiary was 
entitled to receive from the originator. If the payment order is 
canceled or amended, the beneficiary's bank is entitled to recover from 
the beneficiary any amount paid to the beneficiary to the extent allowed 
by the law governing mistake and restitution.
    (d) An unaccepted payment order is canceled by operation of law at 
the close of the fifth funds-transfer business day of the receiving bank 
after the execution date or payment date of the order.
    (e) A canceled payment order cannot be accepted. If an accepted 
payment order is canceled, the acceptance is nullified and no person has 
any right or obligation based on the acceptance. Amendment of a payment 
order is deemed to be cancellation of the original order at the time of 
amendment and issue of a new payment order in the amended form at the 
same time.
    (f) Unless otherwise provided in an agreement of the parties or in a 
funds-transfer system rule, if the receiving bank, after accepting a 
payment order, agrees to cancellation or amendment of the order by the 
sender or is bound by a funds-transfer system rule allowing cancellation 
or amendment without the bank's agreement, the sender, whether or not 
cancellation or amendment is effective, is liable to the bank for any 
loss and expenses, including reasonable attorney's fees, incurred by the 
bank as a result of the cancellation or amendment or attempted 
cancellation or amendment.
    (g) A payment order is not revoked by the death or legal incapacity 
of the sender unless the receiving bank knows of the death or of an 
adjudication of incapacity by a court of competent jurisdiction and has 
reasonable opportunity to act before acceptance of the order.
    (h) A funds-transfer system rule is not effective to the extent it 
conflicts with subsection (c)(2).

[[Page 307]]

     Section 4A-212. Liability and Duty of Receiving Bank Regarding 
                        Unaccepted Payment Order

    If a receiving bank fails to accept a payment order that it is 
obliged by express agreement to accept, the bank is liable for breach of 
the agreement to the extent provided in the agreement or in this 
Article, but does not otherwise have any duty to accept a payment order 
or, before acceptance, to take any action, or refrain from taking 
action, with respect to the order except as provided in this Article or 
by express agreement. Liability based on acceptance arises only when 
acceptance occurs as stated in section 4A-209, and liability is limited 
to that provided in this Article. A receiving bank is not the agent of 
the sender or beneficiary of the payment order it accepts, or of any 
other party to the funds transfer, and the bank owes no duty to any 
party to the funds transfer except as provided in this Article or by 
express agreement.

      Part 3--Execution of Sender's Payment Order by Receiving Bank

              Section 4A-301. Execution and Execution Date

    (a) A payment order is executed by the receiving bank when it issues 
a payment order intended to carry out the payment order received by the 
bank. A payment order received by the beneficiary's bank can be accepted 
but cannot be executed.
    (b) Execution date of a payment order means the day on which the 
receiving bank may properly issue a payment order in execution of the 
sender's order. The execution date may be determined by instruction of 
the sender but cannot be earlier than the day the order is received and, 
unless otherwise determined, is the day the order is received. If the 
sender's instruction states a payment date, the execution date is the 
payment date or an earlier date on which execution is reasonably 
necessary to allow payment to the beneficiary on the payment date.

 Section 4A-302. Obligations of Receiving Bank in Execution of Payment 
                                  Order

    (a) Except as provided in subsections (b) through (d), if the 
receiving bank accepts a payment order pursuant to section 4A-209(a), 
the bank has the following obligations in executing the order:
    (1) The receiving bank is obliged to issue, on the execution date, a 
payment order complying with the sender's order and to follow the 
sender's instructions concerning (i) any intermediary bank or funds-
transfer system to be used in carrying out the funds transfer, or (ii) 
the means by which payment orders are to be transmitted in the funds 
transfer. If the originator's bank issues a payment order to an 
intermediary bank, the originator's bank is obliged to instruct the 
intermediary bank according to the instruction of the originator. An 
intermediary bank in the funds transfer is similarly bound by an 
instruction given to it by the sender of the payment order it accepts.
    (2) If the sender's instruction states that the funds transfer is to 
be carried out telephonically or by wire transfer or otherwise indicates 
that the funds transfer is to be carried out by the most expeditious 
means, the receiving bank is obliged to transmit its payment order by 
the most expeditious available means, and to instruct any intermediary 
bank accordingly. If a sender's instruction states a payment date, the 
receiving bank is obliged to transmit its payment order at a time and by 
means reasonably necessary to allow payment to the beneficiary on the 
payment date or as soon thereafter as is feasible.
    (b) Unless otherwise instructed, a receiving bank executing a 
payment order may (i) use any funds-transfer system if use of that 
system is reasonable in the circumstances, and (ii) issue a payment 
order to the beneficiary's bank or to an intermediary bank through which 
a payment order conforming to the sender's order can expeditiously be 
issued to the beneficiary's bank if the receiving bank exercises 
ordinary care in the selection of the intermediary bank. A receiving 
bank is not required to follow an instruction of the sender designating 
a funds-transfer system to be used in carrying out the funds transfer if 
the receiving bank, in good faith, determines that it is not feasible to 
follow the instruction or that following the instruction would unduly 
delay completion of the funds transfer.
    (c) Unless subsection (a)(2) applies or the receiving bank is 
otherwise instructed, the bank may execute a payment order by 
transmitting its payment order by first class mail or by any means 
reasonable in the circumstances. If the receiving bank is instructed to 
execute the sender's order by a particular means, the receiving bank may 
issue its payment order by transmitting its payment order by the means 
stated or by any means as expeditious as the means stated.
    (d) Unless instructed by the sender, (i) the receiving bank may not 
obtain payment of its charges for services and expenses in connection 
with the execution of the sender's order by issuing a payment order in 
an amount equal to the amount of the sender's order less the amount of 
the charges, and (ii) may not instruct a subsequent receiving bank to 
obtain payment of its charges in the same manner.

          Section 4A-303. Erroneous Execution of Payment Order

    (a) A receiving bank that (i) executes the payment order of the 
sender by issuing a

[[Page 308]]

payment order in an amount greater than the amount of the sender's 
order, or (ii) issues a payment order in execution of the sender's order 
and then issues a duplicate order, is entitled to payment of the amount 
of the sender's order under section 4A-402(c) if that subsection is 
otherwise satisfied. The bank is entitled to recover from the 
beneficiary of the erroneous order the excess payment received to the 
extent allowed by the law governing mistake and restitution.
    (b) A receiving bank that executes the payment order of the sender 
by issuing a payment order in an amount less than the amount of the 
sender's order is entitled to payment of the amount of the sender's 
order under section 4A-402(c) if (i) that subsection is otherwise 
satisfied and (ii) the bank corrects its mistake by issuing an 
additional payment order for the benefit of the beneficiary of the 
sender's order. If the error is not corrected, the issuer of the 
erroneous order is entitled to receive or retain payment from the sender 
of the order it accepted only to the extent of the amount of the 
erroneous order. This subsection does not apply if the receiving bank 
executes the sender's payment order by issuing a payment order in an 
amount less than the amount of the sender's order for the purpose of 
obtaining payment of its charges for services and expenses pursuant to 
instruction of the sender.
    (c) If a receiving bank executes the payment order of the sender by 
issuing a payment order to a beneficiary different from the beneficiary 
of the sender's order and the funds transfer is completed on the basis 
of that error, the sender of the payment order that was erroneously 
executed and all previous senders in the funds transfer are not obliged 
to pay the payment orders they issued. The issuer of the erroneous order 
is entitled to recover from the beneficiary of the order the payment 
received to the extent allowed by the law governing mistake and 
restitution.

 Section 4A-304. Duty of Sender to Report Erroneously Executed Payment 
                                  Order

    If the sender of a payment order that is erroneously executed as 
stated in section 4A-303 receives notification from the receiving bank 
that the order was executed or that the sender's account was debited 
with respect to the order, the sender has a duty to exercise ordinary 
care to determine, on the basis of information available to the sender, 
that the order was erroneously executed and to notify the bank of the 
relevant facts within a reasonable time not exceeding 90 days after the 
notification from the bank was received by the sender. If the sender 
fails to perform that duty, the bank is not obliged to pay interest on 
any amount refundable to the sender under section 4A-402(d) for the 
period before the bank learns of the execution error. The bank is not 
entitled to any recovery from the sender on account of a failure by the 
sender to perform the duty stated in this section.

 Section 4A-305. Liability for Late or Improper Execution or Failure To 
                          Execute Payment Order

    (a) If a funds transfer is completed but execution of a payment 
order by the receiving bank in breach of section 4A-302 results in delay 
in payment to the beneficiary, the bank is obliged to pay interest to 
either the originator or the beneficiary of the funds transfer for the 
period of delay caused by the improper execution. Except as provided in 
subsection (c), additional damages are not recoverable.
    (b) If execution of a payment order by a receiving bank in breach of 
section 4A-302 results in (i) noncompletion of the funds transfer, (ii) 
failure to use an intermediary bank designated by the originator, or 
(iii) issuance of a payment order that does not comply with the terms of 
the payment order of the originator, the bank is liable to the 
originator for its expenses in the funds transfer and for incidental 
expenses and interest losses, to the extent not covered by subsection 
(a), resulting from the improper execution. Except as provided in 
subsection (c), additional damages are not recoverable.
    (c) In addition to the amounts payable under subsections (a) and 
(b), damages, including consequential damages, are recoverable to the 
extent provided in an express written agreement of the receiving bank.
    (d) If a receiving bank fails to execute a payment order it was 
obliged by express agreement to execute, the receiving bank is liable to 
the sender for its expenses in the transaction and for incidential 
expenses and interest losses resulting from the failure to execute. 
Additional damages, including consequential damages, are recoverable to 
the extent provided in an express written agreement of the receiving 
bank, but are not otherwise recoverable.
    (e) Reasonable attorney's fees are recoverable if demand for 
compensation under subsection (a) or (b) is made and refused before an 
action is brought on the claim. If a claim is made for breach of an 
agreement under subsection (d) and the agreement does not provide for 
damages, reasonable attorney's fees are recoverable if demand for 
compensation under subsection (d) is made and refused before an action 
is brought on the claim.
    (f) Except as stated in this section, the liability of a receiving 
bank under subsections (a) and (b) may not be varied by agreement.

[[Page 309]]

                             Part 4--Payment

                      Section 4A-401. Payment Date

    Payment date of a payment order means the day on which the amount of 
the order is payable to the beneficiary by the beneficiary's bank. The 
payment date may be determined by instruction of the sender but cannot 
be earlier than the day the order is received by the beneficiary's bank 
and, unless otherwise determined, is the day the order is received by 
the beneficiary's bank.

       Section 4A-402. Obligation of Sender To Pay Receiving Bank

    (a) This section is subject to sections 4A-205 and 4A-207.
    (b) With respect to a payment order issued to the beneficiary's 
bank, acceptance of the order by the bank obliges the sender to pay the 
bank the amount of the order, but payment is not due until the payment 
date of the order.
    (c) This subsection is subject to subsection (e) and to section 4A-
303. With respect to a payment order issued to a receiving bank other 
than the beneficiary's bank, acceptance of the order by the receiving 
bank obliges the sender to pay the bank the amount of the sender's 
order. Payment by the sender is not due until the execution date of the 
sender's order. The obligation of that sender to pay its payment order 
is excused if the funds transfer is not completed by acceptance by the 
beneficiary's bank of a payment order instructing payment to the 
beneficiary of that sender's payment order.
    (d) If the sender of a payment order pays the order and was not 
obliged to pay all or part of the amount paid, the bank receiving 
payment is obliged to refund payment to the extent the sender was not 
obliged to pay. Except as provided in sections 4A-204 and 4A-304, 
interest is payable on the refundable amount from the date of payment.
    (e) If a funds transfer is not completed as stated in subsection (c) 
and an intermediary bank is obliged to refund payment as stated in 
subsection (d) but is unable to do so because not permitted by 
applicable law or because the bank suspends payments, a sender in the 
funds transfer that executed a payment order in compliance with an 
instruction, as stated in section 4A-302(a)(1), to route the funds 
transfer through that intermediary bank is entitled to receive or retain 
payment from the sender of the payment order that it accepted. The first 
sender in the funds transfer that issued an instruction requiring 
routing through that intermediary bank is subrogated to the right of the 
bank that paid the intermediary bank to refund as stated in subsection 
(d).
    (f) The right of the sender of a payment order to be excused from 
the obligation to pay the order as stated in subsection (c) or to 
receive refund under subsection (d) may not be varied by agreement.

           Section 4A-403. Payment by Sender To Receiving Bank

    (a) Payment of the sender's obligation under section 4A-402 to pay 
the receiving bank occurs as follows:
    (1) If the sender is a bank, payment occurs when the receiving bank 
receives final settlement of the obligation through a Federal Reserve 
Bank or through a funds-transfer system.
    (2) If the sender is a bank and the sender (i) credited an account 
of the receiving bank with the sender, or (ii) caused an account of the 
receiving bank in another bank to be credited, payment occurs when the 
credit is withdrawn or, if not withdrawn, at midnight of the day on 
which the credit is withdrawable and the receiving bank learns of that 
fact.
    (3) If the receiving bank debits an account of the sender with the 
receiving bank, payment occurs when the debit is made to the extent the 
debit is covered by a withdrawable credit balance in the account.
    (b) If the sender and receiving bank are members of a funds-transfer 
system that nets obligations multilaterally among participants, the 
receiving bank receives final settlement when settlement is complete in 
accordance with the rules of the system. The obligation of the sender to 
pay the amount of a payment order transmitted through the funds-transfer 
system may be satisfied, to the extent permitted by the rules of the 
system, by setting off and applying against the sender's obligation the 
right of the sender to receive payment from the receiving bank of the 
amount of any other payment order transmitted to the sender by the 
receiving bank through the funds-transfer system. The aggregate balance 
of obligations owed by each sender to each receiving bank in the funds-
transfer system may be satisfied, to the extent permitted by the rules 
of the system, by setting off and applying against that balance the 
aggregate balance of obligations owed to the sender by other members of 
the system. The aggregate balance is determined after the right of 
setoff stated in the second sentence of this subsection has been 
exercised.
    (c) If two banks transmit payment orders to each other under an 
agreement that settlement of the obligations of each bank to the other 
under section 4A-402 will be made at the end of the day or other period, 
the total amount owed with respect to all orders transmitted by one bank 
shall be set off against the total amount owed with respect to all 
orders transmitted by the other bank. To the extent of the setoff, each 
bank has made payment to the other.

[[Page 310]]

    (d) In a case not covered by subsection (a), the time when payment 
of the sender's obligation under section 4A-402(b) or 4A-402(c) occurs 
is governed by applicable principles of law that determine when an 
obligation is satisfied.

Section 4A-404. Obligation of Beneficiary's Bank To Pay and Give Notice 
                             to Beneficiary

    (a) Subject to sections 4A-211(e), 4A-405(d), and 4A-405(e), if a 
beneficiary's bank accepts a payment order, the bank is obliged to pay 
the amount of the order to the beneficiary of the order. Payment is due 
on the payment date of the order, but if acceptance occurs on the 
payment date after the close of the funds-transfer business day of the 
bank, payment is due on the next funds-transfer business day. If the 
bank refuses to pay after demand by the beneficiary and receipt of 
notice of particular circumstances that will give rise to consequential 
damages as a result of nonpayment, the beneficiary may recover damages 
resulting from the refusal to pay to the extent the bank had notice of 
the damages, unless the bank proves that it did not pay because of a 
reasonable doubt concerning the right of the beneficiary to payment.
    (b) If a payment order accepted by the beneficiary's bank instructs 
payment to an account of the beneficiary, the bank is obliged to notify 
the beneficiary of receipt of the order before midnight of the next 
funds-transfer business day following the payment date. If the payment 
order does not instruct payment to an account of the beneficiary, the 
bank is required to notify the beneficiary only if notice is required by 
the order. Notice may be given by first class mail or any other means 
reasonable in the circumstances. If the bank fails to give the required 
notice, the bank is obliged to pay interest to the beneficiary on the 
amount of the payment order from the day notice should have been given 
until the day the beneficiary learned of receipt of the payment order by 
the bank. No other damages are recoverable. Reasonable attorney's fees 
are also recoverable if demand for interest is made and refused before 
an action is brought on the claim.
    (c) The right of a beneficiary to receive payment and damages as 
stated in subsection (a) may not be varied by agreement or a funds-
transfer system rule. The right of a beneficiary to be notified as 
stated in subsection (b) may be varied by agreement of the beneficiary 
or by a funds-transfer system rule if the beneficiary is notified of the 
rule before initiation of the funds transfer.

      Section 4A-405. Payment by Beneficiary's Bank To Beneficiary

    (a) If the beneficiary's bank credits an account of the beneficiary 
of a payment order, payment of the bank's obligation under section 4A-
404(a) occurs when and to the extent (i) the beneficiary is notified of 
the right to withdraw the credit, (ii) the bank lawfully applies the 
credit to a debt of the beneficiary, or (iii) funds with respect to the 
order are otherwise made available to the beneficiary by the bank.
    (b) If the beneficiary's bank does not credit an account of the 
beneficiary of a payment order, the time when payment of the bank's 
obligation under section 4A-404(a) occurs is governed by principles of 
law that determine when an obligation is satisfied.
    (c) Except as stated in subsections (d) and (e), if the 
beneficiary's bank pays the beneficiary of a payment order under a 
condition to payment or agreement of the beneficiary giving the bank the 
right to recover payment from the beneficiary if the bank does not 
receive payment of the order, the condition to payment or agreement is 
not enforceable.
    (d) A funds-transfer system rule may provide that payments made to 
beneficiaries of funds transfer made through the system are provisional 
until receipt of payment by the beneficiary's bank of the payment order 
it accepted. A beneficiary's bank that makes a payment that is 
provisional under the rule is entitled to refund from the beneficiary if 
(i) the rule requires that both the beneficiary and the originator be 
given notice of the provisional nature of the payment before the funds 
transfer is initiated, (ii) the beneficiary, the beneficiary's bank and 
the originator's bank agreed to be bound by the rule, and (iii) the 
beneficiary's bank did not receive payment of the payment order that it 
accepted. If the beneficiary is obliged to refund payment to the 
beneficiary's bank, acceptance of the payment order by the beneficiary's 
bank is nullified and no payment by the originator of the funds transfer 
to the beneficiary occurs under section 4A-406.
    (e) This subsection applies to a funds transfer that includes a 
payment order transmitted over a funds-transfer system that (i) nets 
obligations-multilaterally among participants, and (ii) has in effect a 
loss-sharing agreement among participants for the purpose of providing 
funds necessary to complete settlement of the obligations of one or more 
participants that do not meet their settlement obligations. If the 
beneficiary's bank in the funds transfer accepts a payment order and the 
system fails to complete settlement pursuant to its rules with respect 
to any payment order in the funds transfer, (i) the acceptance by the 
beneficiary's bank is nullified and no person has any right or 
obligation based on the acceptance, (ii) the beneficiary's bank is 
entitled to recover payment from the beneficiary, (iii) no payment by 
the originator to the beneficiary occurs under section 4A-406, and (iv) 
subject to section 4A-402(e), each sender in

[[Page 311]]

the funds transfer is excused from its obligation to pay its payment 
order under section 4A-402(c) because the funds transfer has not been 
completed.

   Section 4A-406. Payment by Originator to Beneficiary; Discharge of 
                          Underlying Obligation

    (a) Subject to sections 4A-211(e), 4A-405(d), and 4A-405(e), the 
originator of a funds transfer pays the beneficiary of the originator's 
payment order (i) at the time a payment order for the benefit of the 
beneficiary is accepted by the beneficiary's bank in the funds transfer 
and (ii) in an amount equal to the amount of the order accepted by the 
beneficiary's bank, but not more than the amount of the originator's 
order.
    (b) If payment under subsection (a) is made to satisfy an 
obligation, the obligation is discharged to the same extent discharge 
would result from payment to the beneficiary of the same amount in 
money, unless (i) the payment under subsection (a) was made by a means 
prohibited by the contract of the beneficiary with respect to the 
obligation, (ii) the beneficiary, within a reasonable time after 
receiving notice of receipt of the order by the beneficiary's bank, 
notified the originator of the beneficiary's refusal of the payment, 
(iii) funds with respect to the order were not withdrawn by the 
beneficiary or applied to a debt of the beneficiary, and (iv) the 
beneficiary would suffer a loss that could reasonably have been avoided 
if payment had been made by a means complying with the contract. If 
payment by the originator does not result in discharge under this 
section, the originator is subrogated to the rights of the beneficiary 
to receive payment from the beneficiary's bank under section 4A-404(a).
    (c) For the purpose of determining whether discharge of an 
obligation occurs under subsection (b), if the beneficiary's bank 
accepts a payment order in an amount equal to the amount of the 
originator's payment order less charges of one or more receiving banks 
in the funds transfer, payment to the beneficiary is deemed to be in the 
amount of the originator's order unless upon demand by the beneficiary 
the originator does not pay the beneficiary the amount of the deducted 
charges.
    (d) Rights of the originator or of the beneficiary of a funds 
transfer under this section may be varied only by agreement of the 
originator and the beneficiary.

                    Part 5--Miscellaneous Provisions

  Section 4A-501. Variation by Agreement and Effect of Funds-Transfer 
                               System Rule

    (a) Except as otherwise provided in this Article, the rights and 
obligations of a party to a funds transfer may be varied by agreement of 
the affected party.
    (b) Funds-transfer system rule means a rule of an association of 
banks (i) governing transmission of payment orders by means of a funds-
transfer system of the association or rights and obligations with 
respect to those orders, or (ii) to the extent the rule governs rights 
and obligations between banks that are parties to a funds transfer in 
which a Federal Reserve Bank, acting as an intermediary bank, sends a 
payment order to the beneficiary's bank. Except as otherwise provided in 
this Article, a funds-transfer system rule governing rights and 
obligations between participating banks using the system may be 
effective even if the rule conflicts with this Article and indirectly 
affects another party to the funds transfer who does not consent to the 
rule. A funds-transfer system rule may also govern rights and 
obligations of parties other than participating banks using the system 
to the extent stated in sections 4A-404(c), 4A-405(d), and 4A-507(c).

  Section 4A-502. Creditor Process Served on Receiving Bank; Setoff by 
                           Beneficiary's Bank

    (a) As used in this section, creditor process means levy, 
attachment, garnishment, notice of lien, sequestration, or similar 
process issued by or on behalf of a creditor or other claimant with 
respect to an account.
    (b) This subsection applies to creditor process with respect to an 
authorized account of the sender of a payment order if the creditor 
process is served on the receiving bank. For the purpose of determining 
rights with respect to the creditor process, if the receiving bank 
accepts the payment order the balance in the authorized account is 
deemed to be reduced by the amount of the payment order to the extent 
the bank did not otherwise receive payment of the order, unless the 
creditor process is served at a time and in a manner affording the bank 
a reasonable opportunity to act on it before the bank accepts the 
payment order.
    (c) If a beneficiary's bank has received a payment order for payment 
to the beneficiary's account in the bank, the following rules apply:
    (1) The bank may credit the beneficiary's account. The amount 
credited may be set off against an obligation owed by the beneficiary to 
the bank or may be applied to satisfy creditor process served on the 
bank with respect to the account.
    (2) The bank may credit the beneficiary's account and allow 
withdrawal of the amount credited unless creditor process with respect 
to the account is served at a time and in a manner affording the bank a 
reasonable opportunity to act to prevent withdrawal.
    (3) If creditor process with respect to the beneficiary's account 
has been served and the bank has had a reasonable opportunity to act on 
it, the bank may not reject the

[[Page 312]]

payment order except for a reason unrelated to the service of process.
    (d) Creditor process with respect to a payment by the originator to 
the beneficiary pursuant to a funds transfer may be served only on the 
beneficiary's bank with respect to the debt owned by that bank to the 
beneficiary. Any other bank served with the creditor process is not 
obliged to act with respect to the process.

 Section 4A-503. Injunction or Restraining Order with Respect to Funds 
                                Transfer

    For proper cause and in compliance with applicable law, a court may 
restrain (i) a person from issuing a payment order to initiate a funds 
transfer, (ii) an originator's bank from executing the payment order of 
the originator, or (iii) the beneficiary's bank from releasing funds to 
the beneficiary or the beneficiary from withdrawing the funds. A court 
may not otherwise restrain a person from issuing a payment order, paying 
or receiving payment of a payment order, or otherwise acting with 
respect to a funds transfer.

 Section 4A-504. Order In Which Items and Payment Orders May Be Charged 
              to Account; Order of Withdrawals from Account

    (a) If a receiving bank has received more than one payment order of 
the sender or one or more payment orders and other items that are 
payable from the sender's account, the bank may charge the sender's 
account with respect to the various orders and items in any sequence.
    (b) In determining whether a credit to an account has been withdrawn 
by the holder of the account or applied to a debt of the holder of the 
account, credits first made to the account are first withdrawn or 
applied.

 Section 4A-505. Preclusion of Objection to Debit of Customer's Account

    If a receiving bank has received payment from its customer with 
respect to a payment order issued in the name of the customer as sender 
and accepted by the bank, and the customer received notification 
reasonably identifying the order, the customer is precluded from 
asserting that the bank is not entitled to retain the payment unless the 
customer notifies the bank of the customer's objection to the payment 
within one year after the notification was received by the customer.

                    Section 4A-506. Rate of Interest

    (a) If, under this Article, a receiving bank is obliged to pay 
interest with respect to a payment order issued to the bank, the amount 
payable may be determined (i) by agreement of the sender and receiving 
bank, or (ii) by a funds-transfer system rule if the payment order is 
transmitted through a funds-transfer system.
    (b) If the amount of interest is not determined by an agreement or 
rule as stated in subsection (a), the amount is calculated by 
multiplying the applicable Federal Funds rate by the amount on which 
interest is payable, and then multiplying the product by the number of 
days for which interest is payable. The applicable Federal Funds rate is 
the average of the Federal Funds rates published by the Federal Reserve 
Bank of New York for each of the days for which interest 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 next 
preceding day for which there is a published rate. If a receiving bank 
that accepted a payment order is required to refund payment to the 
sender of the order because the funds transfer was not completed, but 
the failure to complete was not due to any fault by the bank, the 
interest payable is reduced by a percentage equal to the reserve 
requirement on deposits of the receiving bank.

                      Section 4A-507. Choice of Law

    (a) The following rules apply unless the affected parties otherwise 
agree or subsection (c) applies:
    (1) The rights and obligations between the sender of a payment order 
and the receiving bank are governed by the law of the jurisdiction in 
which the receiving bank is located.
    (2) The rights and obligations between the beneficiary's bank and 
the beneficiary are governed by the law of the jurisdiction in which the 
beneficiary's bank is located.
    (3) The issue of when payment is made pursuant to a funds transfer 
by the originator to the beneficiary is governed by the law of the 
jurisdiction in which the beneficiary's bank is located.
    (b) If the parties described in each paragraph of subsection (a) 
have made an agreement selecting the law of a particular jurisdiction to 
govern rights and obligations between each other, the law of that 
jurisdiction governs those rights and obligations, whether or not the 
payment order or the funds transfer bears a reasonable relation to that 
jurisdiction.
    (c) A funds-transfer system rule may select the law of a particular 
jurisdiction to govern (i) rights and obligations between participating 
banks with respect to payment orders transmitted or processed through 
the system, or (ii) the rights and obligations of some or all parties to 
a funds transfer any part of which is carried out by means of the 
system. A choice of law made pursuant to clause (i) is binding on 
participating banks. A choice of law made pursuant to clause (ii) is 
binding on the originator, other sender, or a receiving bank having 
notice that the funds-transfer system might be used in the

[[Page 313]]

funds transfer and of the choice of law by the system when the 
originator, other sender, or receiving bank issued or accepted a payment 
order. The beneficiary of a funds transfer is bound by the choice of law 
if, when the funds transfer is initiated, the beneficiary has notice 
that the funds-transfer system might be used in the funds transfer and 
of the choice of law by the system. The law of a jurisdiction selected 
pursuant to this subsection may govern, whether or not that law bears a 
reasonable relation to the matter in issue.
    (d) In the event of inconsistency between an agreement under 
subsection (b) and a choice-of-law rule under subsection (c), the 
agreement under subsection (b) prevails.
    (e) If a funds transfer is made by use of more than one funds-
transfer system and there is inconsistency between choice-of-law rules 
of the systems, the matter in issue is governed by the law of the 
selected jurisdiction that has the most significant relationship to the 
matter in issue.
[55 FR 40801, Oct. 5, 1990; 55 FR 47428, Nov. 13, 1990]



PART 211--INTERNATIONAL BANKING OPERATIONS (REGULATION K)--Table of Contents




      Subpart A--International Operations of United States Banking 
                              Organizations

Sec.
211.1  Authority, purpose, and scope.
211.2  Definitions.
211.3  Foreign branches of U.S. banking organizations.
211.4  Edge and Agreement corporations.
211.5  Investments and activities abroad.
211.6  Lending limits and capital requirements.
211.7  Supervision and reporting.
211.8  Reports of crimes and suspected crimes.

                Subpart B--Foreign Banking Organizations

211.20  Authority, purpose, and scope.
211.21  Definitions.
211.22  Interstate banking operations of foreign banking organizations.
211.23  Nonbanking activities of foreign banking organizations.
211.24  Approval of offices of foreign banks; procedures for 
          applications; standards for approval; representative-office 
          activities and standards for approval; preservation of 
          existing authority; reports of crimes and suspected crimes; 
          government securities sales practices.
211.25  Termination of offices of foreign banks.
211.26  Examination of offices and affiliates of foreign banks.
211.27  Disclosure of supervisory information to foreign supervisors.
211.28  Limitation on loans to one borrower.
211.29  Applications by state-licensed branches and agencies to conduct 
          activities not permissible for federal branches.
211.30  Criteria for evaluating the U.S. operations of foreign banks not 
          subject to consolidated supervision.

                   Subpart C--Export Trading Companies

211.31  Authority, purpose, and scope.
211.32  Definitions.
211.33  Investments and extensions of credit.
211.34  Procedures for filing and processing notices.

              Subpart D--International Lending Supervision

211.41  Authority, purpose, and scope.
211.42  Definitions.
211.43  Allocated transfer risk reserve.
211.44  Reporting and disclosure of international assets.
211.45  Accounting for fees on international loans.

                             Interpretations

211.601  Status of certain offices for purposes of the International 
          Banking Act restrictions on interstate banking operations.
211.602  Investments by United States banking organizations in foreign 
          companies that transact business in the United States.
211.603  Commodity swap transactions.

    Authority:  12 U.S.C. 221 et seq., 1818, 1835a, 1841 et seq., 3101 
et seq., and 3901 et seq.



      Subpart A--International Operations of United States Banking 
                              Organizations

    Source:  56 FR 19565, Apr. 29, 1991, unless otherwise noted.



Sec. 211.1  Authority, purpose, and scope.

    (a) Authority. This subpart is issued by the Board of Governors of 
the Federal Reserve System (``Board'') under the authority of the 
Federal Reserve Act (``FRA'') (12 U.S.C. 221 et seq.); the Bank Holding 
Company Act of 1956 (``BHC Act'') (12 U.S.C. 1841 et seq.); and the 
International Banking Act of 1978 (``IBA'') (12 U.S.C. 3101 et seq.). 
Requirements for the collection of information contained in this 
regulation have been approved by the Office of Management and Budget 
under the provision of 44

[[Page 314]]

U.S.C. 3501, et seq. and have been assigned OMB numbers 7100-0107; 7100-
0109; 7100-0110; 7100-0069; 7100-0086; and 7100-0073.
    (b) Purpose. This subpart sets out rules governing the international 
and foreign activities of U.S. banking organizations, including 
procedures for establishing foreign branches and Edge corporations to 
engage in international banking and for investments in foreign 
organizations.
    (c) Scope. This subpart applies to:
    (1) Corporations organized under section 25(a) of the FRA (12 U.S.C. 
611-631), ``Edge corporations'';
    (2) Corporations having an agreement or undertaking with the Board 
under section 25 of the FRA (12 U.S.C. 601-604a), ``Agreement 
corporations'';
    (3) Member banks with respect to their foreign branches and 
investments in foreign banks under section 25 of the FRA (12 U.S.C. 601-
604a);\1\ and
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    \1\ Section 25 of the FRA, which refers to national banking 
associations, also applies to state member banks of the Federal Reserve 
System by virtue of section 9 of the FRA (12 U.S.C. 321).
---------------------------------------------------------------------------

    (4) Bank holding companies with respect to the exemption from the 
nonbanking prohibitions of the BHC Act afforded by section 4(c)(13) of 
the BHC Act (12 U.S.C. 1843(c)(13)).



Sec. 211.2  Definitions.

    Unless otherwise specified, for the purposes of this subpart:
    (a) An affiliate of an organization means:
    (1) Any entity of which the organization is a direct or indirect 
subsidiary; or
    (2) Any direct or indirect subsidiary of the organization or such 
entity.
    (b) Capital Adequacy Guidelines means the Capital Adequacy 
Guidelines for State Member Banks: Risk-Based Measure (12 CFR part 208, 
app. A).
    (c) Capital and surplus means paid-in and unimpaired capital and 
surplus, and includes undivided profits but does not include the 
proceeds of capital notes or debentures.
    (d) Directly or indirectly, when used in reference to activities or 
investments of an organization, means activities or investments of the 
organization or of any subsidiary of the organization.
    (e) Eligible country means a country that, since 1980, has 
restructured its sovereign debt held by foreign creditors, and any other 
country that the Board deems to be eligible.
    (f) An Edge corporation is engaged in banking if it is ordinarily 
engaged in the business of accepting deposits in the United States from 
nonaffiliated persons.
    (g) Engaged in business or engaged in activities in the United 
States means maintaining and operating an office (other than a 
representative office) or subsidiary in the United States.
    (h) Equity means an ownership interest in an organization, whether 
through:
    (1) Voting or nonvoting shares;
    (2) General or limited partnership interests;
    (3) Any other form of interest conferring ownership rights, 
including warrants, debt, or any other interests that are convertible 
into shares or other ownership rights in the organization; or
    (4) Loans that provide rights to participate in the profits of an 
organization, unless the investor receives a determination that such 
loans should not be considered equity in the circumstances of the 
particular investment.
    (i) Foreign or foreign country refers to one or more foreign 
nations, and includes the overseas territories, dependencies, and 
insular possessions of those nations and of the United States, and the 
Commonwealth of Puerto Rico.
    (j) Foreign bank means an organization that:
    (1) Is organized under the laws of a foreign country;
    (2) Engages in the business of banking;
    (3) Is recognized as a bank by the bank supervisory or monetary 
authority of the country of its organization or principal banking 
operations;
    (4) Receives deposits to a substantial extent in the regular course 
of its business; and
    (5) Has the power to accept demand deposits.
    (k) Foreign branch means an office of an organization (other than a 
representative office) that is located outside the country under the 
laws of

[[Page 315]]

which the organization is established, at which a banking or financing 
business is conducted.
    (l) Foreign person means an office or establishment located, or 
individual residing, outside the United States.
    (m) Investment means: (1) The ownership or control of equity;
    (2) Binding commitments to acquire equity;
    (3) Contributions to the capital and surplus of an organization; and
    (4) The holding of an organization's subordinated debt when the 
investor and the investor's affiliates hold more than 5 percent of the 
equity of the organization.
    (n) Investor means an Edge corporation, Agreement corporation, bank 
holding company, or member bank.
    (o) Joint venture means an organization that has 20 percent or more 
of its voting shares held directly or indirectly by the investor or by 
an affiliate of the investor under any authority, but which is not a 
subsidiary of the investor.
    (p) Loans and extensions of credit means all direct and indirect 
advances of funds to a person made on the basis of any obligation of 
that person to repay funds.
    (q) Organization means a corporation, government, partnership, 
association, or any other entity.
    (r) Person means an individual or an organization.
    (s) Portfolio investment means an investment in an organization 
other than a subsidiary or joint venture.
    (t) Representative office means an office that:
    (1) Engages solely in representational and administrative functions, 
such as soliciting new business or acting as liaison between the 
organization's head office and customers in the United States; and
    (2) Does not have authority to make any business decision (other 
than decisions relating to the premises or personnel of the 
representative office) for the account of the organization it 
represents, including contracting for any deposit or deposit-like 
liability on behalf of the organization.
    (u) Strongly capitalized means:
    (1) In relation to a parent member bank, that the standards set out 
in 12 CFR 208.33(b)(1) are satisfied; and
    (2) In relation to an Edge or Agreement corporation or a bank 
holding company, that it has a total risk-based capital ratio of 10.0 
percent or greater.
    (v) Subsidiary means an organization more than 50 percent of the 
voting shares of which is held directly or indirectly, or which is 
otherwise controlled or capable of being controlled, by the investor or 
an affiliate of the investor under any authority. Among other 
circumstances, an investor is considered to control an organization if 
the investor or an affiliate is a general partner of the organization or 
if the investor and its affiliates directly or indirectly own or control 
more than 50 percent of the equity of the organization.
    (w) Tier 1 capital has the same meaning as provided under the 
Capital Adequacy Guidelines (12 CFR part 208, appendix A).
    (x) Well managed means that the Edge or Agreement corporation, its 
parent member bank, if any, and the bank holding company have each 
received a composite rating of 1 or 2 at its most recent examination or 
review and are not subject to any supervisory enforcement action.
[56 FR 19565, Apr. 29, 1991, as amended at 57 FR 12997, Apr. 15, 1992; 
58 FR 6358, Jan. 28, 1993; 60 FR 67054, Dec. 28, 1995]



Sec. 211.3  Foreign branches of U.S. banking organizations.

    (a) Establishment of foreign branches--(1) Right to establish 
branches. Foreign branches may be established by any member bank having 
capital and surplus of $1,000,000 or more, an Edge corporation, an 
Agreement corporation, or a subsidiary held pursuant to this subpart. 
Unless otherwise provided in this section, the establishment of a 
foreign branch requires the specific prior approval of the Board.
    (2) Branching within a foreign country. Unless the organization has 
been notified otherwise, no prior Board approval

[[Page 316]]

is required for an organization to establish additional branches in any 
foreign country where it operates one or more branches.\2\
---------------------------------------------------------------------------


    \2\ For the purpose of this paragraph, a subsidiary other than a 
bank or an Edge or Agreement corporation is considered to be operating a 
branch in a foreign country if it has an affiliate that operates an 
office (other than a representative office) in that country.
---------------------------------------------------------------------------

    (3) Branching into additional foreign countries. After giving the 
Board 45 days' prior written notice, an organization that operates 
branches in two or more foreign countries may establish a branch in an 
additional foreign country, unless notified otherwise by the Board.\2\
    (4) Expiration of branching authority. Authority to establish 
branches through prior approval or prior notice shall expire one year 
from the earliest date on which the authority could have been exercised, 
unless the Board extends the period.
    (5) Reporting. Any organization that opens, closes, or relocates a 
branch shall report such change in a manner prescribed by the Board.
    (b) Further powers of foreign branches of member banks. In addition 
to its general banking powers, and to the extent consistent with its 
charter, a foreign branch of a member bank may engage in the following 
activities so far as usual in connection with the business of banking in 
the country where it transacts business:
    (1) Guarantees. Guarantee debts, or otherwise agree to make payments 
on the occurrence of readily ascertainable events,\3\ if the guarantee 
or agreement specifies a maximum monetary liability; but except to the 
extent that the member bank is fully secured, it may not have 
liabilities outstanding for any person on account of such guarantees or 
agreements which, when aggregated with other unsecured obligations of 
the same person, exceed the limit contained in paragraph (a)(1) of 
section 5200 of the Revised Statutes (12 U.S.C. 84) for loans and 
extensions of credit;
---------------------------------------------------------------------------


    \3\ Readily ascertainable events include, but are not limited to, 
events such as nonpayment of taxes, rentals, customs duties, or costs of 
transport and loss or nonconformance of shipping documents.
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    (2) Government obligations. Underwrite, distribute, buy, sell, and 
hold obligations of:
    (i) The national government of the country in which the branch is 
located;
    (ii) An agency or instrumentality of the national government where 
supported by the taxing authority, guarantee, or full faith and credit 
of the national government; and
    (iii) A political subdivision of the country;

Provided however that, no member bank may hold, or be under commitment 
with respect to, such obligations for its own account in an aggregate 
amount exceeding the greater of:
    (A) 10 percent of its Tier 1 capital; or
    (B) 10 percent of the total deposits of the bank's branches in that 
country on the preceding year-end call report date (or the date of 
acquisition of the branch in the case of a branch that has not been so 
reported);
    (3) Other Investments. Invest in:
    (i) The securities of the central bank, clearing houses, 
governmental entities other than those authorized under paragraph (b)(2) 
of this section, and government-sponsored development banks of the 
country in which the foreign branch is located;
    (ii) Other debt securities eligible to meet local reserve or similar 
requirements; and
    (iii) Shares of automated electronic payments networks, professional 
societies, schools, and the like necessary to the business of the 
branch;

Provided however that, the total investments of the bank's branches in 
that country under this paragraph (exclusive of securities held as 
required by the law of that country or as authorized under section 5136 
of the Revised Statutes (12 U.S.C. 24, Seventh)) may not exceed 1 
percent of the total deposits of the bank's branches in that country on 
the preceding year-end call report date (or on the date of acquisition 
of the branch in the case of a branch that has not so reported);
    (4) Credit extensions to bank's officers. Extend credit to an 
officer of the bank residing in the country in which the foreign branch 
is located to finance the acquisition or construction of living quarters 
to be used as the officer's residence abroad, provided however that:

[[Page 317]]

    (i) The credit extension is reported promptly to the branch's home 
office; and
    (ii) Any extension of credit exceeding $100,000 (or the equivalent 
in local currency) is reported also to the bank's board of directors;
    (5) Real estate loans. Take liens or other encumbrances on foreign 
real estate in connection with its extensions of credit, whether or not 
of first priority and whether or not the real estate has been improved;
    (6) Insurance. Act as insurance agent or broker;
    (7) Employee benefits program. Pay to an employee of the branch, as 
part of an employee benefits program, a greater rate of interest than 
that paid to other depositors of the branch;
    (8) Repurchase agreements. Engage in repurchase agreements involving 
securities and commodities that are the functional equivalents of 
extensions of credit;
    (9) Investment in subsidiaries. With the Board's prior approval, 
acquire all of the shares of a company (except where local law requires 
other investors to hold directors' qualifying shares or similar types of 
instruments) that engages solely in activities:
    (i) In which the member bank is permitted to engage; or
    (ii) That are incidental to the activities of the foreign branch; 
and
    (10) Other activities. With the Board's prior approval, engage in 
other activities that the Board determines are usual in connection with 
the transaction of the business of banking in the places where the 
member bank's branches transact business.
    (c) Reserves of foreign branches of member banks. Member banks shall 
maintain reserves against foreign branch deposits when required by part 
204 of this chapter (Regulation D).



Sec. 211.4  Edge and Agreement corporations.

    (a) Organization--(1) Board authority. The Board shall have the 
authority to approve:
    (i) The establishment of Edge corporations; and
    (ii) Investments by member banks and bank holding companies in 
Agreement corporations.
    (2) Permit. A proposed Edge corporation shall become a body 
corporate when the Board issues a permit approving its proposed name, 
articles of association, and organization certificate.
    (3) Name. The name shall include international, foreign, overseas, 
or some similar word, but may not resemble the name of another 
organization to an extent that might mislead or deceive the public.
    (4) Federal Register notice. The Board shall publish in the Federal 
Register notice of any proposal to organize an Edge corporation and will 
give interested persons an opportunity to express their views on the 
proposal.
    (5) Factors considered by the Board. The factors considered by the 
Board in acting on a proposal to organize an Edge corporation include:
    (i) The financial condition and history of the applicant;
    (ii) The general character of its management;
    (iii) The convenience and needs of the community to be served with 
respect to international banking and financing services; and
    (iv) The effects of the proposal on competition.
    (6) Authority to commence business. (i) After the Board issues a 
permit, the Edge corporation may elect officers and otherwise complete 
its organization, invest in obligations of the United States Government, 
and maintain deposits with depository institutions, but it may not 
exercise any other powers until at least 25 percent of the authorized 
capital stock specified in the articles of association has been paid in 
cash, and each shareholder has paid in cash at least 25 percent of that 
shareholder's stock subscription.
    (ii) Unexercised authority to commence business as an Edge 
corporation shall expire one year after issuance of the permit, unless 
the Board extends the period.
    (7) Amendments to articles of association. No amendment to the 
articles of association shall become effective until approved by the 
Board.
    (8) Shareholders meeting. An Edge Corporation shall provide in its 
bylaws that:
    (i) A shareholders meeting shall be convened at the request of the 
Board

[[Page 318]]

within five days after the Board gives notice of the request to the Edge 
corporation;
    (ii) Any shareholder or group of shareholders that owns or controls 
25 percent or more of the shares of the Edge corporation shall attend 
such a meeting in person or by proxy; and
    (iii) Failure by a shareholder or authorized representative to 
attend any such meeting in person or by proxy may result in removal or 
barring of such shareholders or any representatives from further 
participation in the management or affairs of the Edge corporation.
    (b) Nature and ownership of shares--(1) Shares. (i) Shares of stock 
in an Edge corporation may not include no-par value shares and shall be 
issued and transferred only on its books and in compliance with section 
25(a) of the FRA and this subpart.
    (ii) The share certificates of an Edge corporation shall:
    (A) Name and describe each class of shares indicating its character 
and any unusual attributes such as preferred status or lack of voting 
rights; and
    (B) Conspicuously set forth the substance of:
    (1) Any limitations upon the rights of ownership and transfer of 
shares imposed by section 25(a) of the FRA; and
    (2) Any rules that the Edge corporation prescribes in its by-laws to 
ensure compliance with this paragraph.
    (iii) Any change in status of a shareholder that causes a violation 
of section 25(a) of the FRA shall be reported to the Board as soon as 
possible, and the Edge corporation shall take such action as the Board 
may direct.
    (2) Ownership of Edge corporations by foreign institutions--(i) 
Prior Board approval. One or more foreign or foreign-controlled domestic 
institutions referred to in paragraph 13 of section 25(a) of the FRA (12 
U.S.C. 619) may apply for the Board's prior approval to acquire directly 
or indirectly a majority of the shares of the capital stock of an Edge 
corporation.
    (ii) Conditions and requirements. Such an institution shall:
    (A) Provide the Board information related to its financial condition 
and activities and such other information as the Board may require;
    (B) Ensure that any transaction by an Edge corporation with an 
affiliate \4\ is on substantially the same terms, including interest 
rates and collateral, as those prevailing at the same time for 
comparable transactions by the Edge corporation with nonaffiliated 
persons, and does not involve more than the normal risk of repayment or 
present other unfavorable features;
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    \4\ For purposes of this paragraph, affiliate means any organization 
that would be an affiliate under section 23A of the FRA (12 U.S.C. 371c) 
if the Edge corporation were a member bank.
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    (C) Ensure that the Edge corporation will not provide funding on a 
continual or substantial basis to any affiliate or office of the foreign 
institution through transactions that would be inconsistent with the 
international and foreign business purposes for which Edge corporations 
are organized;
    (D) Invest no more than 10 percent of the institution's capital and 
surplus in the aggregate amount of stock held in all Edge corporations; 
and
    (E) In the case of a foreign institution not subject to section 4 of 
the BHC Act:
    (1) Comply with any conditions that the Board may impose that are 
necessary to prevent undue concentration of resources, decreased or 
unfair competition, conflicts of interest, or unsound banking practices 
in the United States; and
    (2) Give the Board 45 days' prior written notice, in a form to be 
prescribed by the Board, before engaging in any nonbanking activity in 
the United States, or making any initial or additional investments in 
another organization, that would require prior Board approval or notice 
by an organization subject to section 4 of the BHC Act; in connection 
with such notice, the Board may impose conditions necessary to prevent 
adverse effects that may result from such activity or investment.
    (3) Change in control--(i) Prior notice. Any person shall give the 
Board 60 days' prior written notice, in a form to be prescribed by the 
Board, before acquiring, directly or indirectly, 25 percent or more of 
the voting shares, or otherwise acquiring control, of an Edge 
corporation. The Board may extend the 60-day period for an additional 30 
days

[[Page 319]]

by notifying the acquiring party. A notice under this paragraph need not 
be filed where a change in control is effected through a transaction 
requiring the Board's approval under section 3 of the BHC Act (12 U.S.C. 
1842).
    (ii) Board review. In reviewing a notice filed under this paragraph, 
the Board shall consider the factors set forth in paragraph (a)(5) of 
this section and may disapprove a notice or impose any conditions that 
it finds necessary to assure the safe and sound operation of the Edge 
corporation, to assure the international character of its operation, and 
to prevent adverse effects such as decreased or unfair competition, 
conflicts of interest, or undue concentration of resources.
    (c) Domestic branches--(1) Prior notice. (i) An Edge corporation may 
establish branches in the United States 45 days after the Edge 
corporation has given notice to its Reserve Bank, unless the Edge 
corporation is notified to the contrary within that time.
    (ii) The notice to the Reserve Bank shall include a copy of the 
notice of the proposal published in a newspaper of general circulation 
in the communities to be served by the branch.
    (iii) The newspaper notice may appear no earlier than 90 calendar 
days prior to submission of notice of the proposal to the Reserve Bank. 
The newspaper notice must provide an opportunity for the public to give 
written comment on the proposal to the appropriate Reserve Bank for at 
least 30 days after the date of publication.
    (2) Factors considered. The factors considered in acting upon a 
proposal to establish a branch are enumerated in paragraph (a)(5) of 
this section.
    (3) Expiration of authority. Authority to open a branch under prior 
notice shall expire one year from the earliest date on which that 
authority could have been exercised, unless the Board extends the 
period.
    (d) Reserve requirements and interest rate limitations. The deposits 
of an Edge or Agreement corporation are subject to parts 204 and 217 of 
this chapter (Regulations D and Q) in the same manner and to the same 
extent as if the Edge or Agreement corporation were a member bank.
    (e) Permissible activities in the United States. An Edge corporation 
may engage directly or indirectly in activities in the United States 
that are permitted by the sixth paragraph of section 25(a) of the FRA 
and are incidental to international or foreign business, and in such 
other activities as the Board determines are incidental to international 
or foreign business. The following activities will ordinarily be 
considered incidental to an Edge corporation's international or foreign 
business:
    (1) Deposit activities--(i) Deposits from foreign governments and 
foreign persons. An Edge corporation may receive in the United States 
transaction accounts, savings, and time deposits (including issuing 
negotiable certificates of deposits) from foreign governments and their 
agencies and instrumentalities, and from foreign persons.
    (ii) Deposits from other persons. An Edge corporation may receive 
from any other person in the United States transaction accounts, 
savings, and time deposits (including issuing negotiable certificates of 
deposit) if such deposits:
    (A) Are to be transmitted abroad;
    (B) Consist of funds to be used for payment of obligations to the 
Edge corporation or collateral securing such obligations;
    (C) Consist of the proceeds of collections abroad that are to be 
used to pay for exported or imported goods or for other costs of 
exporting or importing or that are to be periodically transferred to the 
depositor's account at another financial institution;
    (D) Consist of the proceeds of extensions of credit by the Edge 
corporation;
    (E) Represent compensation to the Edge corporation for extensions of 
credit or services to the customer;
    (F) Are received from Edge or Agreement corporations, foreign banks 
and other depository institutions (as described in part 204 of this 
chapter (Regulation D));
    (G) Are received from an organization that by its charter, license, 
or enabling law is limited to business that is of an international 
character, including Foreign Sales Corporations (26

[[Page 320]]

U.S.C. 921); transportation organizations engaged exclusively in the 
international transportation of passengers or in the movement of goods, 
wares, commodities or merchandise in international or foreign commerce; 
and export trading companies that are exclusively engaged in activities 
related to international trade.
    (2) Liquid funds. Funds of an Edge or Agreement corporation that are 
not currently employed in its international or foreign business, if held 
or invested in the United States, shall be in the form of:
    (i) Cash;
    (ii) Deposits with depository institutions, as described in part 204 
of this chapter (Regulation D), and other Edge and Agreement 
corporations;
    (iii) Money market instruments (including repurchase agreements with 
respect to such instruments), such as bankers' acceptances, federal 
funds sold, and commercial paper; and
    (iv) Short- or long-term obligations of, or fully guaranteed by, 
federal, state, and local governments and their instrumentalities.
    (3) Borrowings. An Edge corporation may:
    (i) Borrow from offices of other Edge and Agreement corporations, 
foreign banks, and depository institutions (as described in part 204 of 
this chapter (Regulation D)) or issue obligations to the United States 
or any of its agencies or instrumentalities;
    (ii) Incur indebtedness from a transfer of direct obligations of, or 
obligations that are fully guaranteed as to principal and interest by, 
the United States or any agency or instrumentality thereof that the Edge 
corporation is obligated to repurchase;
    (iii) Issue long-term subordinated debt that does not qualify as a 
deposit under part 204 of this chapter (Regulation D).
    (4) Credit activities. An Edge corporation may:
    (i) Finance the following:
    (A) Contracts, projects, or activities performed substantially 
abroad;
    (B) The importation into or exportation from the United States of 
goods, whether direct or through brokers or other intermediaries;
    (C) The domestic shipment or temporary storage of goods being 
imported or exported (or accumulated for export); and
    (D) The assembly or repackaging of goods imported or to be exported;
    (ii) Finance the costs of production of goods and services for which 
export orders have been received or which are identifiable as being 
directly for export;
    (iii) Assume or acquire participations in extensions of credit, or 
acquire obligations arising from transactions the Edge corporation could 
have financed, including acquisitions of obligations of foreign 
governments;
    (iv) Guarantee debts, or otherwise agree to make payments on the 
occurrence of readily ascertainable events,\5\ if the guarantee or 
agreement specifies the maximum monetary liability thereunder and is 
related to a type of transaction described in paragraphs (e)(4)(i) and 
(ii) of this section; and
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    \5\ Readily ascertainable events include, but are not limited to, 
events such as nonpayment of taxes, rentals, customs duties, or cost of 
transport and loss or nonconformance of shipping documents.
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    (v) Provide credit and other banking services for domestic and 
foreign purposes to foreign governments and their agencies and 
instrumentalities; foreign persons; and organizations of the type 
described in paragraph 211.4(e)(1)(ii)(G) of this section.
    (5) Payments and collections. An Edge corporation may receive 
checks, bills, drafts, acceptances, notes, bonds, coupons, and other 
instruments for collection abroad, and collect such instruments in the 
United States for a customer abroad; and may transmit and receive wire 
transfers of funds and securities for depositors.
    (6) Foreign exchange. An Edge corporation may engage in foreign 
exchange activities.
    (7) Fiduciary and investment advisory activities. An Edge 
corporation may:
    (i) Hold securities in safekeeping for, or buy and sell securities 
upon the order and for the account and risk of, a person, provided such 
services for U.S. persons shall be with respect to foreign securities 
only;

[[Page 321]]

    (ii) Act as paying agent for securities issued by foreign 
governments or other entities organized under foreign law;
    (iii) Act as trustee, registrar, conversion agent, or paying agent 
with respect to any class of securities issued to finance foreign 
activities and distributed solely outside the United States;
    (iv) Make private placements of participations in its investments 
and extensions of credit; however, except to the extent permissible for 
member banks under section 5136 of the Revised Statutes (12 U.S.C. 24, 
Seventh), no Edge corporation may otherwise engage in the business of 
underwriting, distributing, or buying or selling securities in the 
United States;
    (v) Act as investment or financial adviser by providing portfolio 
investment advice and portfolio management with respect to securities, 
other financial instruments, real property interests and other 
investment assets,\6\ and by providing advice on mergers and 
acquisitions, provided such services for U.S. persons shall be with 
respect to foreign assets only; and
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    \6\ For purposes of this section, management of an investment 
portfolio does not include operational management of real property, or 
industrial or commercial assets.
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    (vi) Provide general economic information and advice, general 
economic statistical forecasting services and industry studies, provided 
such services for U.S. persons shall be with respect to foreign 
economies and industries only.
    (8) Banking services for employees. Provide banking services, 
including deposit services, to the officers and employees of the Edge 
corporation and its affiliates; however, extensions of credit to such 
persons shall be subject to the restrictions of part 215 of this chapter 
(Regulation O) as if the Edge corporation were a member bank.
    (9) Other activities. With the Board's prior approval, engage in 
other activities in the United States that the Board determines are 
incidental to the international or foreign business of Edge 
corporations.
    (f) Agreement corporations. With the prior approval of the Board, a 
member bank or bank holding company may invest in a federally- or state-
chartered corporation that has entered into an agreement or undertaking 
with the Board that it will not exercise any power that is impermissible 
for an Edge corporation under this subpart.



Sec. 211.5  Investments and activities abroad.

    (a) General policy. Activities abroad, whether conducted directly or 
indirectly, shall be confined to activities of a banking or financial 
nature and those that are necessary to carry on such activities. In 
doing so, investors shall at all times act in accordance with high 
standards of banking or financial prudence, having due regard for 
diversification of risks, suitable liquidity, and adequacy of capital. 
Subject to these considerations and the other provisions of this 
section, it is the Board's policy to allow activities abroad to be 
organized and operated as best meets corporate policies.
    (b) Investment requirements--(1) Eligible investments. Subject to 
the limitations in paragraph (b)(2) of this section, an investor may 
directly or indirectly:
    (i) Invest in a subsidiary that engages solely in activities listed 
in paragraph (d) of this section or in such other activities as the 
Board has determined in the circumstances of a particular case are 
permissible; provided however that, in the case of an acquisition of a 
going concern, existing activities that are not otherwise permissible 
for a subsidiary may account for not more than 5 percent of either the 
consolidated assets or revenues of the acquired organization;
    (ii) Invest in a joint venture provided that, unless otherwise 
permitted by the Board, not more than 10 percent of the joint venture's 
consolidated assets or revenues are attributable to activities not 
listed in paragraph (d) of this section; and
    (iii) Make portfolio investments in an organization, provided 
however that:
    (A) The total direct and indirect portfolio investments by the 
investor and its affiliates in organizations engaged in activities that 
are not permissible for joint ventures do not exceed:
    (1) 40 percent of the total equity of the organization, when 
combined with

[[Page 322]]

shares in the organization held in trading or dealing accounts pursuant 
to paragraph (d)(14) of this section and shares in the organization held 
under any other authority; or
    (2) 25 percent of the investor's Tier 1 capital where the investor 
is a bank holding company or 100 percent of Tier 1 capital for any other 
investor, when combined with underwriting commitments and shares held in 
trading or dealing accounts pursuant to paragraph (d)(14) of this 
section;\7\ and
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    \7\ For this purpose, a direct subsidiary of a member bank is deemed 
to be an investor.
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    (B) Any loans and extensions of credit made by an investor or its 
affiliates to the organization are on substantially the same terms, 
including interest rates and collateral, as those prevailing at the same 
time for comparable transactions between the investor or its affiliates 
and nonaffiliated persons.
    (2) Direct investments by member banks. A member bank's direct 
investments under section 25 of the FRA shall be limited to:
    (i) Foreign banks;
    (ii) Foreign organizations formed for the sole purpose of either 
holding shares of a foreign bank or performing nominee, fiduciary, or 
other banking services incidental to the activities of a foreign branch 
or foreign bank affiliate of the member bank; and
    (iii) Subsidiaries established pursuant to Sec. 211.3(b)(9) of this 
subpart.
    (3) Investment limit. In computing the amount that may be invested 
in any organization under this section, there shall be included any 
unpaid amount for which the investor is liable and any investments in 
the same organization held by affiliates under any authority.
    (4) Divestiture. An investor shall dispose of an investment promptly 
(unless the Board authorizes retention) if:
    (i) The organization invested in:
    (A) Engages in the general business of buying or selling goods, 
wares, merchandise, or commodities in the United States;
    (B) Engages directly or indirectly in other business in the United 
States that is not permitted to an Edge corporation in the United States 
except that an investor may hold up to 5 percent of the shares of a 
foreign company that engages directly or indirectly in business in the 
United States that is not permitted to an Edge corporation; or
    (C) Engages in impermissible activities to an extent not permitted 
under paragraph (b)(1) of this section; or
    (ii) After notice and opportunity for hearing, the investor is 
advised by the Board that its investment is inappropriate under the FRA, 
the BHC Act, or this subpart.
    (c) Investment procedures.\8\ Direct and indirect investments shall 
be made in accordance with the general consent, prior notice, or 
specific consent procedures contained in this paragraph. Except as the 
Board may otherwise determine, in order for an investor to make 
investments under the general consent procedure, the investor and any 
other investor of which it is a subsidiary shall be in compliance with 
applicable minimum standards for capital adequacy. The Board may at any 
time, upon notice, modify or suspend the general consent and prior 
notice procedures with respect to any investor or with respect to the 
acquisition of shares of organizations engaged in particular kinds of 
activities. An investor shall apply for and receive the prior specific 
consent of the Board for its initial investment in its first subsidiary 
or joint venture unless an affiliate has made such an investment. 
Authority to make investments under prior notice or specific consent 
shall expire one year from the earliest date on which the authority 
could have been exercised, unless the Board extends the period.
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    \8\ When necessary, the general consent and prior notice provisions 
of this section constitute the Board's approval under the eighth 
paragraph of section 25(a) of the FRA for investments in excess of the 
limitations therein based on capital and surplus.
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    (1) General consent. Subject to the other limitations of this 
section, the Board grants its general consent for the following:\9\
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    \9\ In determining compliance with these limits, an investor shall 
combine the value of all shares of an organization held in trading or 
dealing accounts under Sec. 211.5(d)(14) of this part with investments 
in the same organization. Shares held in trading or dealing accounts are 
also subject to the limits in Sec. 211.5(d)(14) of this part.

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[[Page 323]]

    (i) Any investment in a joint venture or subsidiary, and any 
portfolio investment, if the total amount invested (in one transaction 
or in a series of transactions) does not exceed the lesser of:
    (A) $25 million; or
    (B) 5 percent of the investor's Tier 1 capital in the case of a 
member bank, bank holding company, or Edge corporation engaged in 
banking, or 25 percent of the investor's Tier 1 capital in the case of 
an Edge corporation not engaged in banking;
    (ii) Any additional investment in an organization in any calendar 
year so long as:
    (A) The total amount invested in that calendar year does not exceed 
10 percent of the investor's Tier 1 capital; and
    (B) The total amount invested under Sec. 211.5 (including 
investments made pursuant to specific consent or prior notice) in that 
calendar year does not exceed cash dividends reinvested under paragraph 
(c)(1)(iii) of this section plus 10 percent of the investor's direct and 
indirect historical cost\10\ in the organization, which investment 
authority, to the extent unexercised, may be carried forward and 
accumulated for up to five consecutive years;
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    \10\ The historical cost of an investment consists of the actual 
amounts paid for shares or otherwise contributed to the capital 
accounts, as measured in dollars at the exchange rate in effect at the 
time each investment was made. It does not include subordinated debt or 
unpaid commitments to invest even though these may be considered 
investments for other purposes of this part. For investments acquired 
indirectly as a result of acquiring a subsidiary, the historical cost to 
the investor is measured as of the date of acquisition of the subsidiary 
at the net asset value of the equity interest in the case of 
subsidiaries and joint ventures, and in the case of portfolio 
investments, at the book carrying value.
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    (iii) Any additional investment in an organization in an amount 
equal to cash dividends received from that organization during the 
preceding twelve calendar months; or
    (iv) Any investment that is acquired from an affiliate at net asset 
value.
    (2)(i) Expanded general consent for de novo investments. 
Notwithstanding the amount limitations of paragraph (c)(1) of this 
section, but subject to the other limitations of this section, the Board 
grants expanded general consent authority for investments in an 
organization by an investor that is strongly capitalized and well 
managed if:
    (A) The activities of the organization are limited to activities in 
which a national bank may engage directly or in which a subsidiary may 
engage under paragraph (d) of this section;
    (B) In the case of an investor that is an Edge corporation that is 
not engaged in banking or an Agreement corporation, the total amount 
invested in such organization (in one transaction or a series of 
transactions) does not exceed the lesser of 20 percent of the investor's 
Tier 1 capital or 2 percent of the Tier 1 capital of the parent member 
bank;
    (C) In the case of a bank holding company or member bank investor, 
the total amount invested in such organization (in one transaction or a 
series of transactions) directly or indirectly does not exceed 2 percent 
of the investor's Tier 1 capital;
    (D) All investments made, directly or indirectly, by an Edge 
corporation not engaged in banking or an Agreement corporation during 
the previous 12-month period under paragraph (c)(2) of this section, 
when aggregated with the proposed investment, would not exceed the 
lesser of 50 percent of the total capital of the Edge or Agreement 
corporation, or 5 percent of the total capital of the parent member 
bank;
    (E) All investments made, directly or indirectly, by a member bank 
or a bank holding company during the previous 12-month period under 
paragraph (c)(2) of this section, when aggregated with the proposed 
investment, would not exceed 5 percent of its total capital; and
    (F) Both before and immediately after the proposed investment the 
investor, its parent member bank, if any, and any parent bank holding 
company are strongly capitalized and well managed.
    (ii) Determining aggregate investment limits. For purposes of 
determining compliance with the aggregate investment limits set out in 
paragraphs (c)(2)(i)(D) and (E) of this section, an

[[Page 324]]

investment by an investor in a subsidiary shall be counted only once 
notwithstanding that such subsidiary may, within 12 months of the date 
of making the investment, downstream all or any part of such investment 
to another subsidiary.
    (iii) Additional investments. An investor that makes investments 
under paragraph (c)(2)(i) of this section may also make additional 
investments in an organization under the standards set forth in 
paragraphs (c)(1)(ii), (c)(1)(iii) and (c)(1)(iv) of this section.
    (iv) Ineligible investments. The following investments are not 
eligible for the general consent under paragraph (c)(2)(i) of this 
section:
    (A) An investment in a foreign country where the investor does not 
have an affiliate or a branch;
    (B) The establishment or acquisition of an initial subsidiary bank 
in a foreign country;
    (C) Investments in general partnerships or unlimited liability 
companies; and
    (D) An acquisition of shares or assets of an organization that is 
not an affiliate or joint venture of the investor.
    (v) Post-investment notice. By the end of the month following the 
month in which the investment is made, the investor shall provide the 
Board with the following information relating to the investment:
    (A) If the investment is in a joint venture, the respective 
responsibilities of the parties to the joint venture;
    (B) Projections for the organization in which the investment is made 
for the first year following the investment; and
    (C) Where the investment is made in an organization that incurred a 
loss in the last year, a description of the reasons for the loss and the 
steps taken to address the problem.
    (3) Prior notice. An investment that does not qualify under the 
general consent procedure may be made after the investor has given 45 
days' prior written notice to the Board. The Board may waive the 45-day 
period if it finds immediate action is required by the circumstances 
presented. The notice period shall commence at the time the notice is 
received. The Board may suspend the period or act on the investment 
under the Board's specific consent procedures.
    (4) Specific consent. Any investment that does not qualify for 
either the general consent or the prior notice procedure shall not be 
consummated without the specific consent of the Board.
    (d) Permissible activities. The Board has determined that the 
following activities are usual in connection with the transaction of 
banking or other financial operations abroad:
    (1) Commercial and other banking activities;
    (2) Financing, including commercial financing, consumer financing, 
mortgage banking, and factoring;
    (3) Leasing real or personal property, or acting as agent, broker, 
or advisor in leasing real or personal property, if the lease serves as 
the functional equivalent of an extension of credit to the lessee of the 
property;
    (4) Acting as fiduciary;
    (5) Underwriting credit life insurance and credit accident and 
health insurance;
    (6) Performing services for other direct or indirect operations of a 
U.S. banking organization, including representative functions, sale of 
long-term debt, name saving, holding assets acquired to prevent loss on 
a debt previously contracted in good faith, and other activities that 
are permissible domestically for a bank holding company under sections 
4(a)(2)(A) and 4(c)(1)(C) of the BHC Act;
    (7) Holding the premises of a branch of an Edge corporation or 
member bank or the premises of a direct or indirect subsidiary, or 
holding or leasing the residence of an officer or employee of a branch 
or subsidiary;
    (8) Providing investment, financial, or economic advisory services;
    (9) General insurance agency and brokerage;
    (10) Data processing;
    (11) Organizing, sponsoring, and managing a mutual fund if the 
fund's shares are not sold or distributed in the United States or to 
U.S. residents and the fund does not exercise managerial control over 
the firms in which it invests;
    (12) Performing management consulting services provided that such 
services when rendered with respect to the U.S.

[[Page 325]]

market shall be restricted to the initial entry;
    (13) Underwriting, distributing and dealing in debt securities 
outside the United States;
    (14) Underwriting, distributing, and dealing in equity securities 
outside the United States as follows:
    (i) By an investor, or an affiliate, that had commenced such 
activities prior to March 27, 1991, and subject to limitations in effect 
at that time (12 CFR part 211 (1990)); or
    (ii) With the approval of the Board, underwriting equity securities 
if:
    (A) Commitments by an investor and its affiliates for the shares of 
an organization do not in the aggregate exceed the lesser of $60 million 
or 25 percent of the investor's Tier l capital unless the underwriter is 
covered by binding commitments from subunderwriters or other purchasers 
obtained by the investor or its affiliates; and
    (B) Commitments by an investor and its affiliates for the shares of 
an organization in excess of those permitted by paragraph (d)(14)(ii)(A) 
of this section provided that:
    (1) The underwriting level approved by the Board for the investor 
and its affiliates in excess of the limitations of paragraph 
(d)(14)(ii)(A) of this section is fully deducted from the capital of the 
bank holding company, and from the capital of the bank where the 
securities activities are conducted by a subsidiary of a U.S. bank;\11\ 
and
---------------------------------------------------------------------------


    \11\ Fifty percent of such capital deductions shall be from Tier 1 
capital.
---------------------------------------------------------------------------

    (2) In the Board's judgment such bank holding company and bank would 
remain strongly capitalized after such deduction from capital; and
    (iii) With the approval of the Board, dealing in the shares of an 
organization (including the shares of a U.S. organization with respect 
to foreign persons only and subject to the limitations on owning or 
controlling shares of a company in section 4 of the BHC Act and the 
Board's Regulation Y (12 CFR part 225)) where the shares held in the 
trading or dealing accounts of an investor and its affiliates, when 
combined with any shares held pursuant to the authority provided under 
paragraph (b) of this section, do not in the aggregate exceed the lesser 
of $30 million or 10 percent of the investor's Tier l capital, provided 
however that:
    (A) For purposes of determining compliance with the limitations of 
this paragraph (d)(14)(iii) and paragraph (b)(1)(iii)(A)(2) of this 
section, long and short positions in the same security may be netted and 
positions in a security may be offset by futures, forwards, options, and 
similar instruments referenced to the same security through hedging 
methods approved by the Board, except that any position in a security 
shall not be deemed to have been reduced by more than 75 percent;
    (B) Any shares held in trading or dealing accounts for longer than 
90 days shall be reported to the senior management of the investor;
    (C) Any shares acquired pursuant to an underwriting commitment for 
up to 90 days after the payment date for such underwriting shall not be 
subject to the dollar and percentage limitations of paragraph 
(d)(14)(iii) of this section or the investment provisions of paragraph 
(b) of this section, other than the aggregate limits in paragraph 
(b)(1)(iii)(A)(2) of this section; and
    (D) Shares of an organization held in all trading and dealing 
accounts, when combined with all other equity interests in the 
organization held by the investor and its affiliates, other than 
underwriting commitments for shares and shares held pursuant to an 
underwriting for 90 days following the payment date for such shares, 
must conform to the permissible limits for investments in an 
organization under paragraph (b) of this section.\12\
---------------------------------------------------------------------------


    \12\ Underwriting commitments are combined with shares held by an 
investor and its affiliates (other than an affiliate authorized to deal 
in shares under section 4(c)(8) of the BHC Act) in dealing or trading 
accounts and with portfolio investments for purposes of determining 
compliance with the aggregate limits in paragraph (b)(1)(iii)(A)(2) of 
this section.
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    (iv) Underwriting commitments for shares and shares held by an 
affiliate authorized to underwrite equity securities under section 
4(c)(8) of the BHC Act shall not be included in determining compliance 
with the aggregates limits in paragraph (b)(1)(iii)(A)(2) of

[[Page 326]]

this section and the limits of paragraphs (d)(14)(ii)(A) and (iii) of 
this section, except that shares held by such an affiliate shall be 
included for purposes of determining compliance with paragraph 
(d)(14)(iii)(D) of this section.
    (15) Operating a travel agency provided that the travel agency is 
operated in connection with financial services offered abroad by the 
investor or others;
    (16) Underwriting life, annuity, pension fund-related, and other 
types of insurance, where the associated risks have been previously 
determined by the Board to be actuarially predictable, provided however 
that:
    (i) Investments in, and loans and extensions of credit (other than 
loans and extensions of credit fully secured in accordance with the 
requirements of section 23A of the FRA (12 U.S.C. 371c) or with such 
other standards as the Board may require) to, the company by the 
investor or its affiliates are deducted from the capital of the 
investor;\13\ and
---------------------------------------------------------------------------


    \13\ Fifty percent of such capital deduction shall be from Tier 1 
capital.
---------------------------------------------------------------------------

    (ii) Activities conducted directly or indirectly by a subsidiary of 
a U.S. insured bank are excluded from the authority of this paragraph.
    (17) Acting as a futures commission merchant for financial 
instruments of the type, and on exchanges, that the Board has previously 
approved, provided however that:
    (i) Activities are conducted in accordance with the standards set 
forth in Sec. 225.25(b)(18) of the Board's Regulation Y (12 CFR 
225.25(b)(18)); and
    (ii) Prior approval must be obtained for activities conducted on an 
exchange that requires members to guarantee or otherwise contract to 
cover losses suffered by other members.
    (18) Acting as principal or agent in swap transactions\14\ subject 
to any limitations applicable to state member banks under the Board's 
Regulation H (12 CFR part 208), except that where such activities 
involve contracts related to a commodity, such contracts must provide an 
option for cash settlement and the option must be exercised upon 
settlement.
---------------------------------------------------------------------------


    \14\ Swap transactions involving equity instruments are separately 
authorized under paragraph (d)(14) of this section.
---------------------------------------------------------------------------

    (19) Engaging in activities that the Board has determined in 
Regulation Y (12 CFR 225.25(b)) are closely related to banking under 
section 4(c)(8) of the BHC Act; and
    (20) With the Board's specific approval, engaging in other 
activities that the Board determines are usual in connection with the 
transaction of the business of banking or other financial operations 
abroad and are consistent with the FRA or the BHC Act.
    (e) Debts previously contracted. Shares or other ownership interests 
acquired to prevent a loss upon a debt previously contracted in good 
faith are not subject to the limitations or procedures of this section; 
however, they shall be disposed of promptly but in no event later than 
two years after their acquisition, unless the Board authorizes retention 
for a longer period.
    (f) Investments made through debt-for-equity conversions--(1) 
Permissible investments. A bank holding company may make investments 
through the conversion of sovereign or private debt obligations of an 
eligible country, either through direct exchange of the debt obligations 
for the investment or by a payment for the debt in local currency, the 
proceeds of which, including an additional cash investment not exceeding 
in the aggregate more than 10 percent of the fair value of the debt 
obligations being converted as part of such investment, are used to 
purchase the following investments:
    (i) Public sector companies. A bank holding company may acquire up 
to and including 100 percent of the shares of (or other ownership 
interests in) any foreign company located in an eligible country if the 
shares are acquired from the government of the eligible country or from 
its agencies or instrumentalities.
    (ii) Private sector companies. A bank holding company may acquire up 
to and including 40 percent of the shares, including voting shares, of 
(or other ownership interests in) any other foreign company located in 
an eligible country subject to the following conditions:

[[Page 327]]

    (A) A bank holding company may acquire more than 25 percent of the 
voting shares of the foreign company only if another shareholder or 
control group of shareholders unaffiliated with the bank holding company 
holds a larger block of voting shares of the company;
    (B) The bank holding company and its affiliates may not lend or 
otherwise extend credit to the foreign company in amounts greater than 
50 percent of the total loans and extensions of credit to the foreign 
company; and
    (C) The bank holding company's representation on the board of 
directors or on management committees of the foreign company may be no 
more than proportional to its shareholding in the foreign company.
    (2) Investments by bank subsidiary of bank holding company. Upon 
application, the Board may permit an indirect investment to be made 
pursuant to this paragraph through an insured bank subsidiary of the 
bank holding company where the bank holding company demonstrates that 
such ownership is consistent with the purposes of the FRA. In granting 
its consent, the Board may impose such conditions as it deems necessary 
or appropriate to prevent adverse effects, including prohibiting loans 
from the bank to the company in which the investment is made.
    (3) Divestiture--(i) Time limits for divestiture. The bank holding 
company shall divest the shares of, or other ownership interests in, any 
company acquired pursuant to this paragraph (unless the retention of the 
shares or other ownership interest is otherwise permissible at the time 
required for divestiture) within the longer of:
    (A) Ten years from the date of acquisition of the investment except 
that the Board may extend such period if, in the Board's judgment, such 
an extension would not be detrimental to the public interest; or
    (B) Two years from the date on which the bank holding company is 
permitted to repatriate in full the investment in the foreign company;

Provided however that, in either event divestiture occurs within fifteen 
years of the date of the acquisition.
    (ii) Report to the Board. The bank holding company shall report to 
the Board on its plans for divesting an investment made under this 
paragraph two years prior to the final date for divestiture, in a manner 
to be prescribed by the Board.
    (iii) Other conditions requiring divestiture. All investments made 
pursuant to this paragraph are subject to paragraphs (b)(4)(i)(A) and 
(B) of this section requiring prompt divestiture (unless the Board upon 
application authorizes retention) if the company invested in engages in 
impermissible business in the United States that exceeds in the 
aggregate 10 percent of the company's consolidated assets or revenues 
calculated on an annual basis; provided however that, such company may 
not engage in activities in the United States that consist of banking or 
financial operations (as defined in Sec. 211.23(f)(5)(iii)(B) of this 
chapter), or types of activities permitted by regulation or order under 
section 4(c)(8) of the BHC Act, except under regulations of the Board or 
with the prior approval of the Board.
    (4) Investment procedures--(i) General consent. Subject to the other 
limitations of this paragraph, the Board grants its general consent for 
investments made under this paragraph if the total amount invested does 
not exceed the greater of $25 million or 1 percent of the Tier 1 capital 
of the investor.
    (ii) All other investments shall be made in accordance with the 
procedures of paragraph (c) of this section requiring prior notice or 
specific consent.
    (5) Conditions--(i) Name. Any company acquired pursuant to this 
paragraph shall not bear a name similar to the name of the acquiring 
bank holding company or any of its affiliates.
    (ii) Confidentiality. Neither the bank holding company nor its 
affiliates shall provide to any company acquired pursuant to this 
paragraph any confidential business information or other information 
concerning customers that are engaged in the same or related lines of 
business as the company.



Sec. 211.6  Lending limits and capital requirements.

    (a) Acceptances of Edge corporations--(1) Limitations. An Edge 
corporation shall be and remain fully secured for:

[[Page 328]]

    (i) All acceptances outstanding in excess of 200 percent of its Tier 
1 capital; and
    (ii) All acceptances outstanding for any one person in excess of 10 
percent of its Tier 1 capital; Provided however that, these limitations 
apply only to acceptances of the types described in paragraph 7 of 
section 13 of the FRA (12 U.S.C. 372).
    (2) Exceptions. These limitations do not apply if the excess 
represents the international shipment of goods and the Edge corporation 
is:
    (i) Fully covered by primary obligations to reimburse it that are 
guaranteed by banks or bankers; or
    (ii) Covered by participation agreements from other banks, as such 
agreements are described in Sec. 250.165 of this chapter.
    (b) Loans and extensions of credit to one person--(1) Limitations. 
Except as the Board may otherwise specify:
    (i) The total loans and extensions of credit outstanding to any 
person by an Edge corporation engaged in banking and its direct or 
indirect subsidiaries may not exceed 15 percent of the Edge 
corporation's Tier 1 capital;\15\ and
---------------------------------------------------------------------------


    \15\ For purposes of this subsection, subsidiary includes 
subsidiaries controlled by the Edge corporation but does not include 
companies otherwise controlled by affiliates of the Edge corporation.
---------------------------------------------------------------------------

    (ii) The total loans and extensions of credit to any person by a 
foreign bank or Edge corporation subsidiary of a member bank, and by 
majority-owned subsidiaries of a foreign bank or Edge corporation, when 
combined with the total loans and extensions of credit to the same 
person by the member bank and its majority-owned subsidiaries, may not 
exceed the member bank's limitation on loans and extensions of credit to 
one person.
    (2) Loans and extensions of credit has the meaning set forth in 
Sec. 211.2(p) of this part\16\ and, for purposes of this paragraph, 
include:
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    \16\ In the case of a foreign government, these include loans and 
extensions of credit to the foreign government's departments or agencies 
deriving their current funds principally from general tax revenues. In 
the case of a partnership or firm, these include loans and extensions of 
credit to its members and, in the case of a corporation, these include 
loans and extensions of credit to the corporation's affiliates where the 
affiliate incurs the liability for the benefit of the corporation.
---------------------------------------------------------------------------

    (i) Acceptances outstanding that are not of the types described in 
paragraph 7 of section 13 of the FRA (12 U.S.C. 372);
    (ii) Any liability of the lender to advance funds to or on behalf of 
a person pursuant to a guarantee, standby letter of credit, or similar 
agreements;
    (iii) Investments in the securities of another organization except 
where the organization is a subsidiary; and
    (iv) Any underwriting commitments to an issuer of securities where 
no binding commitments have been secured from subunderwriters or other 
purchasers.
    (3) Exceptions. The limitations of paragraph (b)(1) of this section 
do not apply to:
    (i) Deposits with banks and federal funds sold;
    (ii) Bills or drafts drawn in good faith against actual goods and on 
which two or more unrelated parties are liable;
    (iii) Any bankers' acceptance of the kind described in paragraph 7 
of section 13 of the FRA that is issued and outstanding;
    (iv) Obligations to the extent secured by cash collateral or by 
bonds, notes, certificates of indebtedness, or Treasury bills of the 
United States;
    (v) Loans and extensions of credit that are covered by bona fide 
participation agreements; or
    (vi) Obligations to the extent supported by the full faith and 
credit of the following:
    (A) The United States or any of its departments, agencies, 
establishments, or wholly-owned corporations (including obligations to 
the extent insured against foreign political and credit risks by the 
Export-Import Bank of the United States or the Foreign Credit Insurance 
Association), the International Bank for Reconstruction and Development, 
the International Finance Corporation, the International Development 
Association, the Inter-American Development Bank, the African 
Development Bank, the Asian Development Bank, or the European Bank for 
Reconstruction and Development;

[[Page 329]]

    (B) Any organization if at least 25 percent of such an obligation or 
of the total credit is also supported by the full faith and credit of, 
or participated in by, any institution designated in paragraph 
(b)(3)(vi)(A) of this section in such manner that default to the lender 
will necessarily include default to that entity. The total loans and 
extensions of credit under this paragraph (b)(3)(vi)(B) to any person 
shall at no time exceed 100 percent of the Tier 1 capital of the Edge 
corporation.
    (c) Capitalization. An Edge corporation shall at all times be 
capitalized in an amount that is adequate in relation to the scope and 
character of its activities. In the case of an Edge corporation engaged 
in banking, after December 31, 1992, its minimum ratio of qualifying 
total capital to weighted-risk assets, as determined under the Capital 
Adequacy Guidelines, shall not be less than 10 percent, of which at 
least 50 percent shall consist of Tier 1 capital; provided however that 
for purposes of this paragraph, no limitation shall apply as to the 
inclusion of subordinated debt that qualifies as Tier 2 capital under 
the Capital Adequacy Guidelines.



Sec. 211.7  Supervision and reporting.

    (a) Supervision--(1) Foreign branches and subsidiaries. 
Organizations conducting international banking operations under this 
subpart shall supervise and administer their foreign branches and 
subsidiaries in such a manner as to ensure that their operations conform 
to high standards of banking and financial prudence. Effective systems 
of records, controls, and reports shall be maintained to keep management 
informed of their activities and condition. Such systems shall provide, 
in particular, information on risk assets, liquidity management, 
operations, internal controls, and conformance to management policies. 
Reports on risk assets shall be sufficient to permit an appraisal of 
credit quality and assessment of exposure to loss, and for this purpose 
provide full information on the condition of material borrowers. Reports 
on the operations and controls shall include internal and external 
audits of the branch or subsidiary.
    (2) Joint ventures. Investors shall maintain sufficient information 
with respect to joint ventures to keep informed of their activities and 
condition. Such information shall include audits and other reports on 
financial performance, risk exposure, management policies, operations, 
and controls. Complete information shall be maintained on all 
transactions with the joint venture by the investor and its affiliates.
    (3) Availability of reports to examiners. The reports and 
information specified in paragraphs (a)(1) and (2) of this section shall 
be made available to examiners of the appropriate bank supervisory 
agencies.
    (b) Examinations. Examiners appointed by the Board shall examine 
each Edge corporation once a year. An Edge corporation shall make 
available to examiners sufficient information to assess its condition 
and operations and the condition and activities of any organization 
whose shares it holds.
    (c) Reports--(1) Reports of condition. Each Edge corporation shall 
make reports of condition to the Board at such times and in such form as 
the Board may prescribe. The Board may require that statements of 
condition or other reports be published or made available for public 
inspection.
    (2) Foreign operations. Edge and Agreement corporations, member 
banks, and bank holding companies shall file such reports on their 
foreign operations as the Board may require.
    (3) Acquisition or disposition of shares. A member bank, Edge or 
Agreement corporation or a bank holding company shall report, in a 
manner prescribed by the Board, any acquisition or disposition of 
shares.
    (d) Filing and processing procedures. (1) Unless otherwise directed 
by the Board, applications, notifications, and reports required by this 
part shall be filed with the Reserve Bank of the district in which the 
parent bank or bank holding company is located or, if none, the Reserve 
Bank of the district in which the applying or reporting institution is 
located. Instructions and forms for such applications, notifications and 
reports are available from the Reserve Banks.
    (2) The Board shall act on an application or notification under this 
subpart

[[Page 330]]

within 60 calendar days after the Reserve Bank has accepted the 
application or notification unless the Board notifies the investor that 
the 60-day period is being extended and states the reasons for the 
extension.



Sec. 211.8  Reports of crimes and suspected crimes.

    An Edge corporation or any branch or subsidiary thereof or an 
Agreement corporation or branch or any subsidiary thereof 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.
[58 FR 47209, Sept. 8, 1993, as amended at 60 FR 67054, Dec. 28, 1995; 
Reg. K, 61 FR 4344, Feb. 5, 1996]



                Subpart B--Foreign Banking Organizations



Sec. 211.20  Authority, purpose, and scope.

    (a) Authority. This subpart is issued by the Board of Governors of 
the Federal Reserve System (``Board'') under the authority of the Bank 
Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (``BHC Act''); and 
the International Banking Act of 1978 (12 U.S.C. 3101 et seq.) 
(``IBA'').

    (b) Purpose and scope. This subpart is in furtherance of the 
purposes of the BHC Act and the IBA. It applies to foreign banks and 
foreign banking organizations with respect to:
    (1) The limitations on interstate banking under section 5 of the IBA 
(12 U.S.C. 3103);
    (2) The exemptions from the nonbanking prohibitions of the BHC Act 
and the IBA afforded by sections 2(h) and 4(c)(9) of the BHC Act (12 
U.S.C. 1841(h) and 1843(c)(9));
    (3) Board approval of the establishment of an office of a foreign 
bank in the United States under sections 7(d) and 10(a) of the IBA (12 
U.S.C. 3105(d), 3107(a));
    (4) The termination by the Board of a foreign bank's representative 
office, state branch, state agency, or commercial lending company 
subsidiary under sections 7(e) and 10(b) of the IBA (12 U.S.C. 3105(e), 
3107(b)) and the transmission of a recommendation to the Office of the 
Comptroller of the Currency to terminate a federal branch or federal 
agency under section 7(e)(5) of the IBA (12 U.S.C. 3105(e)(5));
    (5) The examination of an office or affiliate of a foreign bank in 
the United States as provided in sections 7(c) and 10(c) of the IBA (12 
U.S.C. 3105(c), 3107(c));
    (6) The disclosure of supervisory information to a foreign 
supervisor under section 15 of the IBA (12 U.S.C. 3109);
    (7) The limitations on loans to one borrower by state branches and 
state agencies of a foreign bank under section 7(h)(2) of the IBA (12 
U.S.C. 3105(h)(2));
    (8) The limitation of a state branch and a state agency to 
conducting only activities that are permissible for a federal branch 
under section (7)(h)(1) of the IBA (12 U.S.C. 3105(h)(1));
    (9) The deposit insurance requirement for retail deposit taking by a 
foreign bank under section 6 of the IBA (12 U.S.C. 3104); and
    (10) The management of shell branches (12 U.S.C. 3105(k)).
    (c) Additional requirements. Compliance by a foreign bank with the 
requirements of this subpart and the laws administered and enforced by 
the Board does not relieve the foreign bank of responsibility to comply 
with the laws and regulations administered by the licensing authority.
[56 FR 19574, Apr. 29, 1991, as amended at 57 FR 12997, Apr. 15, 1992. 
Redesignated at 58 FR 6358, Jan. 28, 1993; Reg. K, 61 FR 39053, July 26, 
1996]



Sec. 211.21  Definitions.

    The definitions contained in Sec.  211.2 in subpart A of this part 
apply to this subpart except as a term is otherwise defined in this 
section:
    (a) Affiliate, of a foreign bank or of a parent of a foreign bank, 
means any company that controls, is controlled by, or is under common 
control with, the foreign bank or the parent of the foreign bank.
    (b) Agency means any place of business of a foreign bank, located in 
any state, at which credit balances are maintained, checks are paid, 
money is lent, or, to the extent not prohibited by state or federal law, 
deposits are accepted from a person or entity that is not a citizen or 
resident of the United

[[Page 331]]

States. Obligations shall not be considered credit balances unless they 
are:

    (1) Incidental to, or arise out of the exercise of, other lawful 
banking powers;
    (2) To serve a specific purpose;
    (3) Not solicited from the general public;
    (4) Not used to pay routine operating expenses in the United States 
such as salaries, rent, or taxes;
    (5) Withdrawn within a reasonable period of time after the specific 
purpose for which they were placed has been accomplished; and
    (6) Drawn upon in a manner reasonable in relation to the size and 
nature of the account.
    (c) Banking subsidiary, with respect to a specified foreign bank, 
means a bank that is a subsidiary as the terms bank and subsidiary are 
defined in section 2 of the BHC Act (12 U.S.C. 1841).
    (d) Branch means any place of business of a foreign bank, located in 
any state, at which deposits are received and that is not an agency, as 
that term is defined in paragraph (b) of this section.
    (e) Change the status of an office means convert a representative 
office into a branch or agency, or an agency into a branch, but does not 
include renewal of the license of an existing office.
    (f) Commercial lending company means any organization, other than a 
bank or an organization operating under section 25 of the Federal 
Reserve Act (FRA) (12 U.S.C. 601-604a), organized under the laws of any 
state, that maintains credit balances permissible for an agency and 
engages in the business of making commercial loans. Commercial lending 
company includes any company chartered under Article XII of the banking 
law of the State of New York.
    (g) Comptroller means the Office of the Comptroller of the Currency.
    (h) Control has the same meaning assigned to it in section 2 of the 
BHC Act (12 U.S.C. 1841), and the terms controlled and controlling shall 
be construed consistently with the term control.
    (i) Domestic branch means any place of business of a foreign bank, 
located in any state, that may accept domestic deposits and deposits 
that are incidental to or for the purpose of carrying out transactions 
in foreign countries.
    (j) A foreign bank engages directly in the business of banking 
outside of the United States if the foreign bank engages directly in 
banking activities usual in connection with the business of banking in 
the countries where the foreign bank is organized or operating.
    (k) To establish means to:

    (1) Open and conduct business through an office;
    (2) Acquire directly, through merger, consolidation, or similar 
transaction with another foreign bank, the operations of an office that 
is open and conducting business;
    (3) Acquire an office through the acquisition of a foreign bank 
subsidiary that will cease to operate in the same corporate form 
following the acquisition;
    (4) Change the status of an office; or
    (5) Relocate an office from one state to another.
    (l) Federal agency, federal branch, state agency, and state branch 
have the same meanings as in section 1 of the IBA (12 U.S.C. 3101).
    (m) Foreign bank means an organization that is organized under the 
laws of a foreign country and that engages directly in the business of 
banking outside of the United States. The term foreign bank does not 
include a central bank of a foreign country that does not engage or seek 
to engage in a commercial banking business in the United States through 
an office.
    (n) Foreign banking organization means a foreign bank, as defined in 
section 1(b)(7) of the IBA (12 U.S.C. 3101(7)), that operates a branch, 
agency, or commercial lending company subsidiary in the United States, 
or that controls a bank in the United States, and any company of which 
the foreign bank is a subsidiary.
    (o) Home country, with respect to a foreign bank, means the country 
in which the foreign bank is chartered or incorporated.
    (p) Home country supervisor, with respect to a foreign bank, means 
the governmental entity or entities in the foreign bank's home country 
with responsibility for the supervision and regulation of the foreign 
bank.
    (q) Licensing authority means:

[[Page 332]]

    (1) The relevant state supervisor, with respect to an application to 
establish a state branch, state agency, commercial lending company, or 
representative office of a foreign bank; or
    (2) The Comptroller, with respect to an application to establish a 
federal branch or federal agency.
    (r) Office or office of a foreign bank means any branch, agency, 
representative office, or commercial lending company subsidiary of a 
foreign bank in the United States.
    (s) The parent of a foreign bank means any company of which the 
foreign bank is a subsidiary; the immediate parent of a foreign bank is 
the company of which the foreign bank is a direct subsidiary; and the 
ultimate parent of a foreign bank is the parent of the foreign bank that 
is not the subsidiary of any other company.
    (t) Regional administrative office means a representative office 
that:
    (1) Is established by a foreign bank that operates one or more 
branches, agencies, commercial lending companies, or banks in the United 
States;
    (2) Is located in the same city as one or more of the foreign bank's 
branches, agencies, commercial lending companies, or banks in the United 
States; and
    (3) Manages, supervises, or coordinates the operations of the 
foreign bank or its affiliates, if any, in a particular geographic 
region.
    (u) Relevant state supervisor means the state entity that is 
authorized to supervise and regulate a state branch, state agency, 
commercial lending company, or representative office.
    (v) Representative office means any place of business of a foreign 
bank, located in any state, that is not a branch, agency, or subsidiary 
of the foreign bank.
    (w) State means any state of the United States or the District of 
Columbia.
    (x) Subsidiary means any organization 25 percent or more of whose 
voting shares is directly or indirectly owned, controlled, or held with 
the power to vote by a company, including a foreign bank or foreign 
banking organization, or any organization that is otherwise controlled 
or capable of being controlled by a foreign bank or foreign banking 
organization.
[58 FR 6358, Jan. 28, 1993, as amended at Reg. K, 59 FR 55028, Nov. 3, 
1994]



Sec. 211.22  Interstate banking operations of foreign banking organizations.

    (a) Determination of home state. (1) A foreign bank (except a 
foreign bank to which paragraph (a)(2) of this section applies) that has 
any combination of domestic agencies or subsidiary commercial lending 
companies that were established before September 29, 1994, in more than 
one state and have been continuously operated shall select its home 
state from those states in which such offices or subsidiaries are 
located. A foreign bank shall do so by filing with the Board a 
declaration of home state by June 30, 1996. In the absence of such 
selection, the Board shall designate the home state for such foreign 
banks.
    (2) A foreign bank that, as of September 29, 1994, had declared a 
home state or had a home state determined pursuant to the law and 
regulations in effect prior to that date shall have that state as its 
home state.
    (3) A foreign bank that has any branches, agencies, subsidiary 
commercial lending companies, or subsidiary banks in one state, and has 
no such offices or subsidiaries in any other states, shall have as its 
home state the state in which such offices or subsidiaries are located.
    (b) Change of home State. A foreign bank may change its home State 
once if:
    (1) 30 days' prior notification of the proposed change is filed with 
the Board; and
    (2) Domestic branches established and investments in banks acquired 
in reliance on its original home State selection are conformed to those 
that would have been permissible had the new home State been selected as 
its home State originally.
    (c) Attribution of home State. (1) A foreign bank or organization 
and the other foreign banks or organizations over which it exercises 
actual control shall be regarded as one foreign bank and shall be 
entitled to one home State.

[[Page 333]]

    (2) Actual control shall be conclusively presumed to exist in the 
case of a bank or organization that owns or controls a majority of the 
voting shares of another bank or organization.
    (3) Where it appears to the Board that a foreign bank or 
organization exercises actual control over the management or policies of 
another foreign bank or organization, the Board may inform the parties 
that a preliminary determination of control has been made on the basis 
of the facts summarized in the communication. In the event of a 
preliminary determination of control by the Board, the parties shall 
within 30 days (or such longer period as may be permitted by the Board):
    (i) Indicate to the Board a willingness to terminate the control 
relationship; or
    (ii) Set forth such facts and circumstances as may support the 
contention that actual control does not exist (and may request a hearing 
to contest the Board's preliminary determination); or
    (iii) Accede to the Board's preliminary determination, in which 
event the parties shall be regarded as one foreign bank and shall be 
entitled to one home State.
    (d) Prohibition against interstate deposit production offices. A 
covered interstate branch of a foreign bank may not be used as a deposit 
production office in accordance with the provisions in Sec. 208.28 of 
the Board's Regulation H (12 CFR 208.28).
[45 FR 67058, Oct. 9, 1980, as amended at 56 FR 19574, Apr. 29, 1991. 
Redesignated and amended at 57 FR 12998, Apr. 15, 1992. Further 
Redesignated at 58 FR 6359, Jan. 28, 1993; Reg. K, 61 FR 24440, May 15, 
1996; 62 FR 47736, Sept. 10, 1997]



Sec. 211.23  Nonbanking activities of foreign banking organizations.

    (a) [Reserved]
    (b) Qualifying foreign banking organizations. Unless specifically 
made eligible for the exemptions by the Board, a foreign banking 
organization shall qualify for the exemptions afforded by this section 
only if, disregarding its United States banking, more than half of its 
worldwide business is banking; and more than half of its banking 
business is outside the United States.1 In order to qualify, 
a foreign banking organization shall:
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    \1\ None of the assets, revenues, or net income, whether held or 
derived directly or indirectly, of a subsidiary bank, branch, agency, 
commercial lending company, or other company engaged in the business of 
banking in the United States (including any territory of the United 
States, Puerto Rico, Guam, American Samoa, or the Virgin Islands) shall 
be considered held or derived from the business of banking outside the 
United States.
---------------------------------------------------------------------------

    (1) Meet at least two of the following requirements:
    (i) Banking assets held outside the United States exceed total 
worldwide nonbanking assets;
    (ii) Revenues derived from business of banking outside the United 
States exceed total revenues derived from its worldwide nonbanking 
business; or
    (iii) Net income derived from the business of banking outside the 
United States exceeds total net income derived from its worldwide 
nonbanking businesses; and
    (2) Meet at least two of the following requirements:
    (i) Banking assets held outside the United States exceed banking 
assets held in the United States;
    (ii) Revenues derived from the business of banking outside the 
United States exceed revenues derived from the business of banking in 
the United States; or
    (iii) Net income derived from the business of banking outside the 
United States exceeds net income derived from the business of banking in 
the United States.
    (c) Determining assets, revenues, and net income. (1) For purposes 
of paragraph (b) of this section, the total assets, revenues, and net 
income of an organization may be determined on a consolidated or 
combined basis. Assets, revenues and net income of companies in which 
the foreign banking organization owns 50 per cent or more of the voting 
shares shall be included when determining total assets, revenues, and 
net income. The foreign banking organization may include assets, 
revenues, and net income of companies in which it owns 25 per cent or 
more of the voting shares if all such companies within the organization 
are included;

[[Page 334]]

    (2) Assets devoted to, or revenues or net income derived from, 
activities listed in Sec. 211.5(d) shall be considered banking assets, 
or revenues or net income derived from the banking business, when 
conducted within the foreign banking organization by a foreign bank or 
its subsidiaries.
    (d) Loss of eligibility for exemptions. (1) A foreign banking 
organization that qualified under paragraph (b) of this section shall 
cease to be eligible for the exemptions of this section if it fails to 
meet the requirements of paragraph (b) of this section for two 
consecutive years as reflected in its Annual Reports (F.R. Y-7) filed 
with the Board.
    (2) A foreign banking organization that ceases to be eligible for 
the exemptions of this section may continue to engage in activities or 
retain investments commenced or acquired prior to the end of the first 
fiscal year for which its Annual Report reflects nonconformance with 
paragraph (b) of this section. Activities commenced or investments made 
after that date shall be terminated or divested within three months of 
the filing of the second Annual Report unless the Board grants consent 
to continue the activity or retain the investment under paragraph (e) of 
this section.
    (3) A foreign banking organization that ceases to qualify under 
paragraph (b) of this section, or an affiliate of such foreign banking 
organization, that requests a specific determination of eligibility 
under paragraph (e) of this section may, prior to the Board's 
determination on eligibility, continue to engage in activities and make 
investments under the provisions of paragraphs (f)(1), (2) and (4) of 
this section.
    (e) Specific determination of eligibility for nonqualifying foreign 
banking organizations. (1) A foreign banking organization that does not 
qualify under paragraph (b) of this section for the exemptions afforded 
by this section, or that has lost its eligibility for the exemptions 
under paragraph (d) of this section, may apply to the Board for a 
specific determination of eligibility for the exemptions.
    (2) A foreign banking organization may apply for a specific 
determination prior to the time it ceases to be eligible for the 
exemptions afforded by this section.
    (3) In determining whether eligibility for the exemptions would be 
consistent with the purposes of the BHC Act and in the public interest, 
the Board shall consider:
    (i) The history and the financial and managerial resources of the 
organization;
    (ii) The amount of its business in the United States;
    (iii) The amount, type, and location of its nonbanking activities, 
including whether such activities may be conducted by U.S. banks or bank 
holding companies; and
    (iv) Whether eligibility of the foreign banking organization would 
result in undue concentration of resources, decreased or unfair 
competition, conflicts of interests, or unsound banking practices.
    (4) Such determination shall be subject to any conditions and 
limitations imposed by the Board, including any requirements to cease 
activities or dispose of investments.
    (5) Determinations of eligibility would generally not be granted 
where a majority of the business of the foreign banking organization 
derives from commercial or industrial activities or where the U.S. 
banking business of the organization is larger than the non-U.S. banking 
business conducted directly by the foreign bank or banks (as defined in 
Sec. 211.2(j) of this part) of the organization.
    (f) Permissible activities and investments. A foreign banking 
organization that qualifies under paragraph (b) of this section may:
    (1) Engage in activities of any kind outside the United States;
    (2) Engage directly in activities in the United States that are 
incidential to its activities outside the United States;
    (3) Own or control voting shares of any company that is not engaged, 
directly or indirectly, in any activities in the United States other 
than those that are incidental to the international or foreign business 
of such company;
    (4) Own or control voting shares of any company in a fiduciary 
capacity under circumstances that would entitle such shareholding to an 
exemption

[[Page 335]]

under section 4(c)(4) of the BHC Act if the shares were held or acquired 
by a bank.
    (5) Own or control voting shares of a foreign company that is 
engaged directly or indirectly in business in the United States other 
than that which is incidental to its international or foreign business, 
subject to the following limitations:
    (i) More than 50 percent of the foreign company's consolidated 
assets shall be located, and consolidated revenues derived from, outside 
the United States; provided however that, if the foreign company fails 
to meet the requirements of this paragraph for two consecutive years (as 
reflected in Annual Reports (F.R. Y-7)) filed with the Board by the 
foreign banking organization, the foreign company shall be divested or 
its activities terminated within one year of the filing of the second 
consecutive Annual Report that reflects nonconformance with the 
requirements of this paragraph, unless the Board grants consent to 
retain the investment under paragraph (g) of this section;
    (ii) The foreign company shall not directly underwrite, sell, or 
distribute, nor own or control more than 5 percent of the voting shares 
of a company that underwrites, sells, or distributes securities in the 
United States except to the extent permitted bank holding companies;
    (iii) If the foreign company is a subsidiary of the foreign banking 
organization, the foreign company must be, or must control, an operating 
company, and its direct or indirect activities in the United States 
shall be subject to the following limitations:
    (A) The foreign company's activities in the United States shall be 
the same kind of activities or related to the activities engaged in 
directly or indirectly by the foreign company abroad as measured by the 
establishment categories of the Standard Industrial Classification (SIC) 
(an activity in the United States shall be considered related to an 
activity outside the United States if it consists of supply, 
distribution, or sales in furtherance of the activity);
    (B) The foreign company may engage in activities in the United 
States that consist of banking, securities, insurance or other financial 
operations, or types of activities permitted by regulation or order 
under section 4(c)(8) of the BHC Act, only under regulations of the 
Board or with the prior approval of the Board.
    (1) Activities within Division H (Finance, Insurance, and Real 
Estate) of the SIC shall be considered banking or financial operations 
for this purpose, with the exception of acting as operators of 
nonresidential buildings (SIC 6512), operators of apartment buildings 
(SIC 6513), operators of dwellings other than apartment buildings (SIC 
6514), and operators of residential mobile home sites (SIC 6515); and 
operating title abstract offices (SIC 6541); and
    (2) The following activities shall be considered financial 
activities and may be engaged in only with the approval of the Board 
under subsection (g): Credit reporting services (SIC 7323); computer and 
data processing services (SIC 7371, 7372, 7373, 7374, 7375, 7376, 7377, 
7378, and 7379); armored car services (SIC 7381); management consulting 
(SIC 8732, 8741, 8742, and 8748); certain rental and leasing activities 
(SIC 4741, 7352, 7353, 7359, 7513, 7514, 7515, and 7519); accounting, 
auditing and bookkeeping services (SIC 8721); courier services (SIC 4215 
and 4513); and arrangement of passenger transportation (SIC 4724, 4725, 
and 4729).
    (g) Exemptions under section 4(c)(9) of the BHC Act. A foreign 
banking organization that is of the opinion that other activities or 
investments may, in particular circumstances, meet the conditions for an 
exemption under section 4(c)(9) of the BHC Act may apply to the Board 
for such a determination by submitting to the Reserve Bank of the 
District in which its banking operations in the United States are 
principally conducted a letter setting forth the basis for that opinion.
    (h) Reports. (1) The foreign banking organization shall inform the 
Board through the organization's Reserve Bank within 30 days after the 
close of each quarter of all shares of companies engaged, directly or 
indirectly, in activities in the United States that were acquired during 
such quarter under the authority of this section.

[[Page 336]]

    (2) The foreign banking organization shall also report any direct 
activities in the United States commenced during such quarter by a 
foreign subsidiary of the foreign banking organization. This information 
shall (unless previously furnished) include a brief description of the 
nature and scope of each company's business in the United States, 
including the 4-digit SIC numbers of the activities in which the company 
engages. Such information shall also include the 4-digit SIC numbers of 
the direct parent of any U.S. company acquired, together with a 
statement of total assets and revenues of the direct parent.
    (i) Availability of information. If any information required under 
this section is unknown and not reasonably available to the foreign 
banking organization, either because obtaining it would involve 
unreasonable effort or expense or because it rests peculiarly within the 
knowledge of a company that is not controlled by the organization, the 
organization shall:
    (1) Give such information on the subject as it possesses or can 
reasonably acquire together with the sources thereof; and
    (2) Include a statement either showing that unreasonable effort or 
expense would be involved or indicating that the company whose shares 
were acquired is not controlled by the organization and stating the 
result of a request for information.

(12 U.S.C. 3101 et seq.; 12 U.S.C. 1841 et seq.; sec. 25(a) of the 
Federal Reserve Act (12 U.S.C. 611 et seq.)
[45 FR 81540, Dec. 11, 1980, as amended at 47 FR 51095, Nov. 12, 1982; 
50 FR 39986, Oct. 1, 1985; 56 FR 19574, Apr. 29, 1991. Redesignated and 
amended at 57 FR 12998, Apr. 15, 1992. Further redesignated and amended 
at 58 FR 6359, Jan. 28, 1993]



Sec. 211.24  Approval of offices of foreign banks; procedures for applications; standards for approval; representative-office activities and standards for 

          approval; preservation of existing authority; reports of 
          crimes and suspected crimes; government securities sales 
          practices.

    (a) Board approval of offices of foreign banks--(1) Prior Board 
approval of branches, agencies, or commercial lending companies of 
foreign banks. (i) Except as otherwise provided in paragraph (a)(3) of 
this section, a foreign bank shall obtain the approval of the Board 
before it:
    (A) Establishes a branch, agency, or commercial lending company 
subsidiary in the United States; or
    (B) Acquires ownership or control of a commercial lending company 
subsidiary.
    (2) Prior Board approval of representative offices of foreign banks. 
Except as otherwise provided in paragraphs (a)(2) or (a)(3) of this 
section, a foreign bank shall obtain the approval of the Board before it 
establishes a representative office in the United States.
    (i) Prior notice for certain representative offices. After providing 
45 days' prior written notice to the Board, a foreign bank that is 
subject to the BHC Act, either directly or through section 8(a) of the 
IBA (12 U.S.C. 3106(a)), may establish:
    (A) A regional administrative office; or
    (B) A representative office, but only if the Board has previously 
determined that the foreign bank proposing to establish a representative 
office is subject to comprehensive supervision or regulation on a 
consolidated basis by its home country supervisor, or previously has 
been approved for a representative office by Board order. The Board may 
waive the 45-day period if it finds that immediate action is required by 
the circumstances presented. The notice period shall commence at the 
time the notice is received by the appropriate Reserve Bank. The Board 
may suspend the period or require Board approval prior to the 
establishment of such an office if the notification raises significant 
policy, prudential or supervisory concerns.
    (ii) General consent for representative offices. The Board grants 
its general consent for a foreign bank that is subject to section 8(a) 
of the IBA (12 U.S.C. 3106(a)), to establish a representative office 
that solely engages in limited administrative functions (such as 
separately maintaining back office support systems) that are clearly 
defined, are performed in connection with the United States banking 
activities of the

[[Page 337]]

foreign bank, and do not involve contact or liaison with customers or 
potential customers beyond incidental contact with existing customers 
relating to administrative matters (such as verification or correction 
of account information), provided that the foreign bank notifies the 
Board in writing within 30 days of the establishment of the 
representative office.
    (3) After-the-fact Board approval. Where a foreign bank proposes to 
establish a branch, agency, representative office, or commercial lending 
company in the United States through the acquisition of, or merger or 
consolidation with, a foreign bank with an office in the United States, 
the Board may, in its discretion, allow the acquisition, merger, or 
consolidation to proceed before an application to establish the office 
has been filed or acted upon under this section if:
    (i) The foreign bank or banks resulting from the acquisition, 
merger, or consolidation, will not directly or indirectly own or control 
more than 5 percent of any class of the voting securities of, or 
control, a U.S. bank;
    (ii) The Board is given reasonable advance notice of the proposed 
acquisition, merger, or consolidation;
    (iii) Prior to consummation of the acquisition, merger, or 
consolidation, each of the relevant foreign banks commits in writing to 
comply with the procedures for an application under this section within 
a reasonable period of time or has already filed an application; and
    (iv) Each of the relevant foreign banks commits in writing to abide 
by the Board's decision on the application, including, if necessary, a 
decision to terminate the activities of any such U.S. office, as the 
Board or the Comptroller may require.
    (4) Notice of change in ownership or control or conversion of 
existing office. A foreign bank with a U.S. office shall notify the 
Board in writing within 10 days of either:
    (i) A change in the foreign bank's ownership or control where the 
foreign bank is acquired or controlled by another foreign bank or 
company and the acquired foreign bank with a U.S. office continues to 
operate in the same corporate form as prior to the change in ownership 
or control; or
    (ii) The conversion of a branch to an agency or representative 
office, an agency to a representative office, a state branch to a 
federal branch, or a state agency to a federal agency.
    (5) Transactions subject to approval under Regulation Y. Subpart B 
of the Board's Regulation Y (12 CFR 225.11-225.14) governs the 
acquisition by a foreign banking organization of direct or indirect 
ownership or control of any voting securities of a bank or bank holding 
company in the United States if the acquisition results in the foreign 
banking organization's ownership or control of more than 5 percent of 
any class of voting securities of a U.S. bank or bank holding company, 
including through acquisition of a foreign bank or foreign banking 
organization that owns or controls more than 5 percent of any class of 
the voting securities of a U.S. bank or bank holding company.
    (b) Procedures for application--(1) Filing application. An 
application for the Board's approval pursuant to this section shall be 
filed in the manner prescribed by the Board.
    (2) Publication requirement--(i) General. Except with respect to a 
proposed transaction where more extensive notice is required by statute 
or as otherwise provided in paragraphs (b)(2)(ii) and (b)(2)(iii) of 
this section, the applicant shall publish a notice in a newspaper of 
general circulation in the community in which the applicant proposes to 
engage in business. The notice shall state that an application is being 
filed as of the date of the notice and provide the name of the 
applicant, the subject matter of the application, the place where 
comments should be sent, and the date by which comments are due pursuant 
to paragraph (b)(3) of this section. The applicant shall furnish with 
its application to the Board a copy of the notice, the date of its 
publication, and the name and address of the newspaper in which it was 
published.
    (ii) Exception. The Board may modify the publication requirement of 
paragraph (b)(2)(i) of this section in appropriate circumstances.

[[Page 338]]

    (iii) Federal branch or federal agency. In the case of an 
application to establish a federal branch or federal agency, compliance 
with the publication procedures of the Comptroller shall satisfy the 
publication requirement of this section. Comments regarding the 
application should be sent to the Board and the Comptroller.
    (3) Written comments. Within 30 days after publication as required 
in paragraph (b)(2) of this section, any person may submit to the Board 
written comments and data on an application. The Board may extend the 
30-day comment period if the Board determines that additional relevant 
information is likely to be provided by interested persons or if other 
extenuating circumstances exist.
    (4) Board action on application--(i) Time limits. The Board shall 
act on an application from a foreign bank within 60 calendar days after 
the foreign bank has been notified that its application has been 
accepted, unless the Board determines that the public interest will be 
served by providing additional time to review the application and 
notifies the applicant that the 60-day period is being extended.
    (ii) Additional information. The Board may request any information 
in addition to that supplied in the application when the Board believes 
that additional information is necessary for its decision.
    (5) Coordination with other regulators. Upon receipt of an 
application by a foreign bank under this section, the Board shall 
promptly notify, consult with, and consider the views of the licensing 
authority.
    (c) Standards for approval--(1) Mandatory standards--(i) General. As 
specified in section 7(d) of the IBA (12 U.S.C. 3105(d)), the Board may 
not approve an application to establish a branch or an agency, or to 
establish or acquire ownership or control of a commercial lending 
company, unless it determines that:
    (A) Each of the foreign bank and any parent foreign bank engages 
directly in the business of banking outside the United States and is 
subject to comprehensive supervision or regulation on a consolidated 
basis by its home country supervisor; and
    (B) The foreign bank has furnished to the Board the information that 
the Board requires in order to assess the application adequately.
    (ii) Basis for determining comprehensive supervision or regulation 
on a consolidated basis. In determining whether a foreign bank and any 
parent foreign bank is subject to comprehensive supervision or 
regulation on a consolidated basis, the Board shall determine whether 
the foreign bank is supervised or regulated in such a manner that its 
home country supervisor receives sufficient information on the worldwide 
operations of the foreign bank (including the relationships of the bank 
to any affiliate) to assess the foreign bank's overall financial 
condition and compliance with law and regulation. In making such a 
determination, the Board shall assess, among other factors, the extent 
to which the home country supervisor:
    (A) Ensures that the foreign bank has adequate procedures for 
monitoring and controlling its activities worldwide;
    (B) Obtains information on the condition of the foreign bank and its 
subsidiaries and offices outside the home country through regular 
reports of examination, audit reports, or otherwise;
    (C) Obtains information on the dealings and relationships between 
the foreign bank and its affiliates, both foreign and domestic;
    (D) Receives from the foreign bank financial reports that are 
consolidated on a worldwide basis, or comparable information that 
permits analysis of the foreign bank's financial condition on a 
worldwide, consolidated basis;
    (E) Evaluates prudential standards, such as capital adequacy and 
risk asset exposure, on a worldwide basis.
    (2) Discretionary standards. In acting on any application under this 
subpart, the Board may take into account:
    (i) Consent of home country supervisor. Whether the home country 
supervisor of the foreign bank has consented to the proposed 
establishment of a branch, agency, or commercial lending company 
subsidiary;
    (ii) Financial resources. The financial resources of the foreign 
bank (including the foreign bank's capital position,

[[Page 339]]

projected capital position, profitability, level of indebtedness, and 
future prospects) and the condition of any U.S. office of the foreign 
bank;
    (iii) Managerial resources. The managerial resources of the foreign 
bank, including the competence, experience, and integrity of the 
officers and directors; the integrity of its principal shareholders; 
management's experience and capacity to engage in international banking; 
and the record of the foreign bank and its management of complying with 
laws and regulations, and of fulfilling any commitments to, and any 
conditions imposed by, the Board in connection with any prior 
application;
    (iv) Sharing information with supervisors. Whether the foreign 
bank's home country supervisor and the home country supervisor of any 
parent of the foreign bank share material information regarding the 
operations of the foreign bank with other supervisory authorities;
    (v) Assurances to Board. Whether the foreign bank has provided the 
Board with adequate assurances that information will be made available 
to the Board on the operations or activities of the foreign bank and any 
of its affiliates that the Board deems necessary to determine and 
enforce compliance with the IBA, the BHC Act, and other applicable 
federal banking statutes; these assurances shall include a statement 
from the foreign bank describing the laws that would restrict the 
foreign bank or any of its parents from providing information to the 
Board;
    (vi) Compliance with U.S. law. Whether the foreign bank and its U.S. 
affiliates are in compliance with applicable U.S. law, and whether the 
applicant has established adequate controls and procedures in each of 
its offices to ensure continuing compliance with U.S. law, including 
controls directed to detection of money laundering and other unsafe or 
unsound banking practices.
    (3) Additional factor. In acting on an application, the Board may 
consider the needs of the community and the history of operation of the 
foreign bank and its relative size in its home country, provided, 
however, that the size of the foreign bank shall not be the sole factor 
in determining whether an office of a foreign bank should be approved.
    (4) Board conditions on approval. The Board may impose such 
conditions on its approval as it deems necessary, including a condition 
which may permit future termination of any activities by the Board or, 
in the case of a federal branch or a federal agency, by the Comptroller, 
based on the inability of the foreign bank to provide information on its 
activities or those of its affiliates that the Board deems necessary to 
determine and enforce compliance with U.S. banking laws.
    (d) Representative offices--(1) Activities. A representative office 
may engage in:
    (i) Representational and administrative functions in connection with 
the banking activities of the foreign bank which may include soliciting 
new business for the foreign bank, conducting research, acting as 
liaison between the foreign bank's head office and customers in the 
United States, performing any of the activities described in 12 CFR 
250.141(h), or performing back office functions, but shall not include 
contracting for any deposit or deposit-like liability, lending money, or 
engaging in any other banking activity for the foreign bank; and
    (ii) Other functions for or on behalf of the foreign bank or its 
affiliates, such as operating as a regional administrative office of the 
foreign bank, but only to the extent that such other functions are not 
banking activities and are not prohibited by applicable federal or state 
law or by ruling or order of the Board.
    (2) Standards for approval of representative offices. As specified 
in section 10(a)(2) of the IBA (12 U.S.C. 3107(a)(2)), in acting on the 
application of a foreign bank to establish a representative office, the 
Board shall take into account to the extent it deems appropriate the 
standards for approval set out in paragraph (c) of this section.
    (3) Special purpose foreign government banks. A foreign government-
owned organization engaged in banking activities in its home country 
that are not commercial in nature may apply to the Board for a 
determination that the organization is not a foreign bank for purposes 
of this section. A written request

[[Page 340]]

setting forth the basis for such a determination may be submitted to the 
Reserve Bank of the District in which the foreign organization's 
representative office is located in the United States or to the Board in 
the case of a proposed establishment of a representative office. The 
Board will review and act upon each such request on a case-by-case 
basis.
    (4) Additional requirements. The Board may impose any additional 
requirements that it determines to be necessary to carry out the 
purposes of the IBA.
    (e) Preservation of existing authority. Nothing in this subpart 
shall be construed to relieve any foreign bank or foreign banking 
organization from any otherwise applicable requirement of federal or 
state law, including any applicable licensing requirement.
    (f) Reports of crimes and suspected crimes. Except for a federal 
branch or a federal agency or a state branch that is insured by the 
Federal Deposit Insurance Corporation, a branch or agency or a 
representative office of a 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.
    (g) Management of shell branches. (1) A state-licensed branch or 
agency shall not manage, through an office of the foreign bank which is 
located outside the United States and is managed or controlled by such 
state-licensed branch or agency, any type of activity that a bank 
organized under the laws of the United States or any State is not 
permitted to manage at any branch or subsidiary of such bank which is 
located outside the United States.
    (2) For purposes of this paragraph (g), an office of a foreign bank 
located outside the United States is ``managed or controlled'' by a 
state-licensed branch or agency if a majority of the responsibility for 
business decisions, including but not limited to decisions with regard 
to lending or asset management or funding or liability management, or 
the responsibility for recordkeeping in respect of assets or liabilities 
for that non-U.S. office, resides at the state-licensed branch or 
agency.
    (3) The types of activities that a state-licensed branch or agency 
may manage through an office located outside the United States that it 
manages or controls include the types of activities authorized to a U.S. 
bank by state or federal charters, regulations issued by chartering or 
regulatory authorities, and other U.S. banking laws, including the 
Federal Reserve Act, and the implementing regulations, but U.S. 
procedural or quantitative requirements that may be applicable to the 
conduct of such activities by U.S. banks shall not apply.
    (h) Government securities sales practices. An uninsured state-
licensed branch or agency of a foreign bank that is required to give 
notice to the Board under section 15C of the Securities Exchange Act of 
1934 (15 U.S.C. 78o-5) and the Department of the Treasury rules under 
section 15C (17 CFR 400.1(d) and part 401) shall be subject to the 
provisions of 12 CFR 208.25 to the same extent as a state member bank 
that is required to give such notice.
[58 FR 6359, Jan. 28, 1993, as amended at 58 FR 47209, Sept. 8, 1993; 
Reg. K, 61 FR 2901, Jan. 30, 1996; 61 FR 4344, Feb. 5, 1996; 61 FR 
39053, July 26, 1996; 62 FR 13286, Mar. 19, 1997]



Sec. 211.25  Termination of offices of foreign banks.

    (a) Grounds for termination--(1) General. Under sections 7(e) and 
10(b) of the IBA (12 U.S.C. 3105(e), 3107(b)), the Board may order a 
foreign bank to terminate the activities of its representative office, 
state branch, state agency, or commercial lending company subsidiary if 
the Board finds that:
    (i) The foreign bank is not subject to comprehensive supervision or 
regulation on a consolidated basis by its home country supervisor in 
accordance with Sec. 211.24(c)(1) of this subpart; or
    (ii)(A) There is reasonable cause to believe that the foreign bank 
or any of its affiliates has committed a violation of law or engaged in 
an unsafe or unsound banking practice in the United States; and
    (B) As a result of such violation or practice, the continued 
operation of the foreign bank's representative office, state branch, 
state agency, or

[[Page 341]]

commercial lending company subsidiary would not be consistent with the 
public interest or with the purposes of the IBA, the BHC Act, or the 
Federal Deposit Insurance Act (FDI Act) (12 U.S.C. 1811 et seq.).
    (2) Additional ground. The Board may also enforce any condition 
imposed in connection with an order issued under Sec.  211.24 of this 
subpart.
    (b) Factor. In making its findings under this section, the Board may 
take into account the needs of the community as well as the history of 
operation of the foreign bank and its relative size in its home country, 
provided, however, that the size of the foreign bank shall not be the 
sole determining factor in a decision to terminate an office.
    (c) Consultation with relevant state supervisor. Except in the case 
of termination pursuant to paragraph (d)(3) of this section, before 
issuing an order terminating the activities of a state branch, state 
agency, representative office, or commercial lending company subsidiary 
under this section, the Board shall request and consider the views of 
the relevant state supervisor.
    (d) Termination procedures--(1) Notice and hearing. Except as 
otherwise provided in paragraph (d)(3) of this section, an order issued 
under paragraph (a)(1) of this section shall be issued only after notice 
to the relevant state supervisor and the foreign bank and after an 
opportunity for a hearing.
    (2) Procedures for hearing. Hearings under this section shall be 
conducted pursuant to the Board's Rules of Practice for Hearings (12 CFR 
part 263).
    (3) Expedited procedure. The Board may act without providing an 
opportunity for a hearing if it determines that expeditious action is 
necessary in order to protect the public interest. When the Board finds 
that it is necessary to act without providing an opportunity for a 
hearing, the Board, solely in its discretion, may provide the foreign 
bank that is the subject of the termination order with notice of the 
intended termination order, grant the foreign bank an opportunity to 
present a written submission opposing issuance of the order, or take any 
other action designed to provide the foreign bank with notice and an 
opportunity to present its views concerning the order.
    (e) Termination of federal branch or federal agency. The Board may 
transmit to the Comptroller a recommendation that the license of a 
federal branch or federal agency be terminated if the Board has 
reasonable cause to believe that the foreign bank or any affiliate of 
the foreign bank has engaged in conduct for which the activities of a 
state branch or state agency may be terminated pursuant to this section.
    (f) Voluntary termination. A foreign bank shall notify the Board at 
least 30 days prior to terminating the activities of any office. Notice 
pursuant to this paragraph is in addition to, and does not satisfy, any 
other federal or state requirements relating to the termination of an 
office or the requirement for prior notice of the closing of a branch 
pursuant to section 39 of the FDI Act (12 U.S.C. 1831p).
[58 FR 6359, Jan. 28, 1993]



Sec. 211.26  Examination of offices and affiliates of foreign banks.

    (a) Conduct of examinations--(1) Examination of branches, agencies, 
commercial lending companies, and affiliates. The Board may examine any 
branch or agency of a foreign bank, any commercial lending company or 
bank controlled by one or more foreign banks or one or more foreign 
companies that control a foreign bank, and any other office or affiliate 
of a foreign bank conducting business in any state.
    (2) Examination of representative offices. The Board may examine any 
representative office in the manner and with the frequency it deems 
appropriate.
    (b) Coordination of examinations. To the extent possible, the Board 
shall coordinate its examinations of the U.S. offices and U.S. 
affiliates of a foreign bank with the licensing authority and, in the 
case of an insured branch, the Federal Deposit Insurance Corporation 
(FDIC), including through simultaneous examinations of the U.S. offices 
and U.S. affiliates of a foreign bank.
    (c) Annual on-site examinations. Each branch, agency, or commercial 
lending company subsidiary of a foreign bank shall be examined on-site 
at least once during each 12-month period (beginning on the date the 
most recent examination of the office ended) by:

[[Page 342]]

    (1) The Board;
    (2) The FDIC, if the branch of the foreign bank accepts or maintains 
insured deposits;
    (3) The Comptroller, if the branch or agency of the foreign bank is 
licensed by the Comptroller; or
    (4) The state supervisor, if the office of the foreign bank is 
licensed or chartered by the state.
[58 FR 6359, Jan. 28, 1993]



Sec. 211.27  Disclosure of supervisory information to foreign supervisors.

    (a) Disclosure by Board. The Board may disclose information obtained 
in the course of exercising its supervisory or examination authority to 
a foreign bank regulatory or supervisory authority if the Board 
determines that disclosure is appropriate for bank supervisory or 
regulatory purposes and will not prejudice the interests of the United 
States.
    (b) Confidentiality. Before making any disclosure of information 
pursuant to paragraph (a) of this section, the Board shall obtain, to 
the extent necessary, the agreement of the foreign bank regulatory or 
supervisory authority to maintain the confidentiality of such 
information to the extent possible under applicable law.
[58 FR 6359, Jan. 28, 1993]



Sec. 211.28  Limitation on loans to one borrower.

    (a) Limitation. Except as otherwise provided in paragraph (b) of 
this section, the total loans and extensions of credit by all the state 
branches and agencies of a foreign bank outstanding to a single borrower 
at one time shall be aggregated with the total loans and extensions of 
credit by all federal branches and federal agencies of the same foreign 
bank outstanding to such borrower at the time and shall be subject to 
the limitations and other provisions of section 5200 of the Revised 
Statutes (12 U.S.C. 84), and the regulations promulgated thereunder, in 
the same manner that extensions of credit by a federal branch or federal 
agency are subject to section 4(b) of the IBA (12 U.S.C. 3102(b)) as if 
such state branches and agencies were federal branches and agencies.
    (b) Preexisting loans and extensions of credit. Any loans or 
extensions of credit to a single borrower that were originated prior to 
December 19, 1991 by a state branch or state agency of the same foreign 
bank and that, when aggregated with loans and extensions of credit by 
all other branches and agencies of the foreign bank, exceed the limits 
set forth in paragraph (a) of this section, may be brought into 
compliance with such limitations through routine repayment, provided 
that any new loans or extensions of credit, including renewals of 
existing unfunded credit lines or extensions of the dates of maturity of 
existing loans, to the same borrower shall comply with the limits set 
forth in paragraph (a) of this section.
[58 FR 6359, Jan. 28, 1993]



Sec. 211.29  Applications by state-licensed branches and agencies to conduct activities not permissible for federal branches.

    (a) Scope. A state-licensed branch or agency shall file with the 
Board a prior written application for permission to engage in or 
continue to engage in any type of activity that:
    (1) Is not permissible for a federal branch, pursuant to statute, 
regulation, official bulletin or circular, or order or interpretation 
issued in writing by the Office of the Comptroller of the Currency; or
    (2) Is rendered impermissible due to a subsequent change in statute, 
regulation, official bulletin or circular, written order or 
interpretation, or decision of a court of competent jurisdiction.
    (b) Exceptions. No application shall be required by a state-licensed 
branch or agency to conduct any activity that is otherwise permissible 
under applicable state and federal law or regulation and that:
    (1) Has been determined by the FDIC pursuant to 12 CFR 
362.4(c)(3)(i)-(c)(3)(ii)(A) not to present a significant risk to the 
affected deposit insurance fund;
    (2) Is permissible for a federally-licensed branch but the OCC 
imposes a quantitative limitation on the conduct of such activity by the 
federal branch;
    (3) Is conducted as agent rather than as principal, provided that 
the activity

[[Page 343]]

is one that could be conducted by a state-chartered bank headquartered 
in the same state in which the branch or agency is licensed; or
    (4) Any other activity that the Board has determined may be 
conducted by any state-licensed branch or agency of a foreign bank 
without further application to the Board.
    (c) Contents of application. An application submitted pursuant to 
paragraph (a) of this section shall be in letter form and shall contain 
the following information:
    (1) A brief description of the activity, including the manner in 
which it will be conducted and an estimate of the expected dollar volume 
associated with the activity;
    (2) An analysis of the impact of the proposed activity on the 
condition of the U.S. operations of the foreign bank in general and of 
the branch or agency in particular, including a copy, if available, of 
any feasibility study, management plan, financial projections, business 
plan, or similar document concerning the conduct of the activity;
    (3) A resolution by the applicant's board of directors or, if a 
resolution is not required pursuant to the applicant's organizational 
documents, evidence of approval by senior management, authorizing the 
conduct of such activity and the filing of this application;
    (4) If the activity is to be conducted by a state-licensed insured 
branch, a statement by the applicant of whether or not it is in 
compliance with 12 CFR 346.19 and 346.20, Pledge of Assets and Asset 
Maintenance, respectively;
    (5) If the activity is to be conducted by a state-licensed insured 
branch, statements by the applicant:
    (i) That it has complied with all requirements of the Federal 
Deposit Insurance Corporation concerning an application to conduct the 
activity and the status of the application, including a copy of the 
FDIC's disposition of such application, if available; and
    (ii) Explaining why the activity will pose no significant risk to 
the deposit insurance fund; and
    (6) Any other information that the Reserve Bank deems appropriate.
    (d) Factors considered in determination. (1) The Board shall 
consider the following factors in determining whether a proposed 
activity is consistent with sound banking practice:
    (i) The types of risks, if any, the activity poses to the U.S. 
operations of the foreign banking organization in general and the branch 
or agency in particular;
    (ii) If the activity poses any such risks, the magnitude of each 
risk; and
    (iii) If a risk is not de minimis, the actual or proposed procedures 
to control and minimize the risk.
    (2) Each of the factors set forth in paragraph (d)(1) of this 
section, shall be evaluated in light of the financial condition of the 
foreign bank in general and the branch or agency in particular and the 
volume of the activity.
    (e) Application procedures. Applications pursuant to this section 
shall be filed with the responsible Reserve Bank for the foreign bank. 
An application shall not be deemed complete until it contains all the 
information requested by the Reserve Bank and has been accepted. 
Approval of such an application may be conditioned on the applicant's 
agreement to conduct the activity subject to specific conditions or 
limitations.
    (f) Divestiture or cessation. (1) In the event that an applicant's 
application for permission to continue to conduct an activity is not 
approved by the Board or, if applicable, the FDIC, the applicant shall 
submit a detailed written plan of divestiture or cessation of the 
activity to the responsible Reserve Bank within 60 days of the 
disapproval. The divestiture or cessation plan shall describe in detail 
the manner in which the applicant will divest itself of or cease the 
activity and shall include a projected timetable describing how long the 
divestiture or cessation is expected to take. Divestitures or cessation 
shall be complete within one year from the date of the disapproval, or 
within such shorter period of time as the Board shall direct.
    (2) In the event that a foreign bank operating a state branch or 
agency chooses not to apply to the Board for permission to continue to 
conduct an activity that is not permissible for a federal branch or 
which is rendered impermissible due to a subsequent change in statute, 
regulation, official bulletin

[[Page 344]]

or circular, written order or interpretation, or decision of a court of 
competent jurisdiction, the foreign bank shall submit a written plan of 
divestiture or cessation, in conformance with paragraph (f)(1) of this 
section, within 60 days of January 1, 1995 or of such change or 
decision.
[Reg. K, 59 FR 55028, Nov. 3, 1994]



Sec. 211.30  Criteria for evaluating the U.S. operations of foreign banks not subject to consolidated supervision.

    (a) General. Pursuant to the Foreign Bank Supervision Enhancement 
Act, Pub.L. 102-242, 105 Stat. 2286 (1991), the Board shall develop and 
publish criteria to be used in evaluating the operations of any foreign 
bank in the United States that the Board has determined is not subject 
to comprehensive supervision or regulation on a consolidated basis.
    (b) Criteria. Following a determination by the Board that, having 
taken into account the standards set forth in Sec. 211.24(c)(1) of this 
subpart, a foreign bank is not subject to comprehensive, consolidated 
supervision by its home country supervisor, the Board shall consider the 
following criteria in determining whether the foreign bank's U.S. 
operations should be permitted to continue and, if so, whether any 
supervisory constraints should be placed upon the bank in connection 
with those operations:
    (1) The proportion of the foreign bank's total assets and total 
liabilities that are located or booked in its home country, as well as 
the distribution and location of its assets and liabilities that are 
located or booked elsewhere;
    (2) The extent to which the operations and assets of the foreign 
bank and any affiliates are subject to supervision by its home country 
supervisor;
    (3) Whether the appropriate authorities in the home country of such 
foreign bank are actively working to establish arrangements for the 
comprehensive, consolidated supervision of such bank and whether 
demonstrable progress is being made;
    (4) Whether the foreign bank has effective and reliable systems of 
internal controls and management information and reporting, which enable 
its management properly to oversee its worldwide operations;
    (5) Whether the foreign bank's home country supervisor has any 
objection to the bank continuing to operate in the United States;
    (6) Whether the foreign bank's home country supervisor and the home 
country supervisor of any parent of the foreign bank share material 
information regarding the operations of the foreign bank with other 
supervisory authorities;
    (7) The relationship of the U.S. operations to the other operations 
of the foreign bank, including whether the foreign bank maintains funds 
in its U.S. offices that are in excess of amounts due to its U.S. 
offices from the foreign bank's non-U.S. offices;
    (8) The soundness of the foreign bank's overall financial condition;
    (9) The managerial resources of the foreign bank, including the 
competence, experience, and integrity of the officers and directors and 
the integrity of its principal shareholders;
    (10) The scope and frequency of external audits of the foreign bank;
    (11) The operating record of the foreign bank generally and its role 
in the banking system in its home country;
    (12) The foreign bank's record of compliance with relevant laws, as 
well as the adequacy of its money laundering controls and procedures, in 
respect of its worldwide operations;
    (13) The operating record of the U.S. offices of the foreign bank;
    (14) The views and recommendations of the Office of the Comptroller 
of the Currency or the state banking regulators in those states in which 
the foreign bank has operations, as appropriate;
    (15) Whether the foreign bank, if requested, has provided the Board 
with adequate assurances that such information will be made available on 
the operations or activities of the foreign bank and any of its 
affiliates as the Board deems necessary to determine and enforce 
compliance with the International Banking Act, the Bank Holding Company 
Act, and other applicable federal banking statutes; and
    (16) Any other information relevant to the safety and soundness of 
the U.S. operations of the foreign bank.

[[Page 345]]

    (c) Restrictions on U.S. operations.--(1) Terms of agreement. Any 
foreign bank that the Board determines is not subject to comprehensive 
supervision or regulation on a consolidated basis by its home country 
supervisor may be required to enter into an agreement to conduct its 
U.S. operations subject to such restrictions as the Board, having 
considered the criteria set forth in paragraph (b) of this section, 
determines to be appropriate in order to assure the safety and soundness 
of its U.S. operations.
    (2) Failure to enter into or comply with agreement. A foreign bank 
that is required by the Board to enter into an agreement pursuant to 
paragraph (c)(1) of this section and either fails to do so or fails to 
comply with the terms of such agreement may be subject to enforcement 
action in order to assure safe and sound banking operations under 12 
U.S.C. 1818, or to termination or a recommendation for termination of 
its U.S. operations under Sec. 211.25 (a) and (e) of this subpart and 
section (7)(e) of the IBA (12 U.S.C. 3105(e)).
[Reg. K, 61 FR 6921, Feb. 23, 1996]



                   Subpart C--Export Trading Companies

    Source:  56 FR 19575, Apr. 29, 1991, unless otherwise noted.



Sec. 211.31  Authority, purpose, and scope.

    (a) Authority. This subpart is issued by the Board of Governors of 
the Federal Reserve System (``Board'') under the authority of the Bank 
Holding Company Act of 1956, as amended (12 U.S.C. 1841 et seq. ) (``BHC 
Act''), the Bank Export Services Act (Title II, Pub. L. 97-290, 96 Stat. 
1235 (1982)) (``BESA''), and the Export Trading Company Act Amendments 
of 1988 (Title III, Pub. L. 100-418, 102 Stat. 1384 (1988)) (``ETC Act 
Amendments'').
    (b) Purpose and scope. This subpart is in furtherance of the 
purposes of the BHC Act, the BESA, and the ETC Act Amendments, the 
latter two statutes being designed to increase U.S. exports by 
encouraging investments and participation in export trading companies by 
bank holding companies and the specified investors. The provisions of 
this subpart apply to the following (hereinafter referred to as 
``eligible investors''):

    (1) Bank holding companies as defined in section 2 of the BHC Act 
(12 U.S.C. 1841(a));
    (2) Edge and Agreement corporations, as described in Sec. 211.1(c) 
of this part, that are subsidiaries of bank holding companies but are 
not subsidiaries of banks;
    (3) Bankers' banks as described in section 4(c)(14)(F)(iii) of the 
BHC Act (12 U.S.C. 1843(c)(14)(F)(iii)); and
    (4) Foreign banking organizations as defined in Sec. 211.21(n) of 
this part.
[56 FR 19575, Apr. 29, 1991, as amended at 58 FR 46076, Sept. 1, 1993]



Sec. 211.32  Definitions.

    The definitions of Sec. 211.2 in subpart A apply to this subpart 
subject to the following:
    (a) Export trading company means a company that is exclusively 
engaged in activities related to international trade and, by engaging in 
one or more export trade services, derives:
    (1) At least one-third of its revenues in each consecutive four-year 
period from the export of, or from facilitating the export of, goods and 
services produced in the United States by persons other than the export 
trading company or its subsidiaries; and
    (2) More revenues in each four-year period from export activities as 
described in paragraph (a)(1) of this section than it derives from the 
import, or facilitating the import, into the United States of goods or 
services produced outside the United States.

For purposes of this section, revenues shall include net sales revenues 
from exporting, importing, or third party trade in goods by the export 
trading company for its own account, and gross revenues derived from all 
other activities of the export trading company.
    (b) The terms bank, company and subsidiary have the same meanings as 
those contained in section 2 of the BHC Act (12 U.S.C. 1841).



Sec. 211.33  Investments and extensions of credit.

    (a) Amount of investments. In accordance with the procedures of 
Sec. 211.34 of

[[Page 346]]

this subpart, an eligible investor may invest no more than 5 percent of 
its consolidated capital and surplus in one or more export trading 
companies, except that an Edge or Agreement corporation not engaged in 
banking may invest as much as 25 percent of its consolidated capital and 
surplus but no more than 5 percent of the consolidated capital and 
surplus of its parent bank holding company.
    (b) Extensions of credit--(1) Amount. An eligible investor in an 
export trading company or companies may extend credit directly or 
indirectly to the export trading company or companies in a total amount 
that at no time exceeds 10 percent of the investor's consolidated 
capital and surplus.
    (2) Terms--(i) An eligible investor in an export trading company may 
not extend credit directly or indirectly to the export trading company 
or any of its customers or to any other investor holding 10 percent or 
more of the shares of the export trading company on terms more favorable 
than those afforded similar borrowers in similar circumstances, and such 
extensions of credit shall not involve more than the normal risk of 
repayment or present other unfavorable features.
    (ii) For the purposes of this provision, an investor in an export 
trading company includes any affiliate of the investor.
    (3) Collateral requirements. Covered transactions between a bank and 
an affiliated export trading company in which a bank holding company has 
invested pursuant to this subpart are subject to the collateral 
requirements of section 23A of the Federal Reserve Act (12 U.S.C. 371c), 
except where a bank issues a letter of credit or advances funds to an 
affiliated export trading company solely to finance the purchase of 
goods for which:
    (i) The export trading company has a bona fide contract for the 
subsequent sale of the goods; and
    (ii) The bank has a security interest in the goods or in the 
proceeds from their sale at least equal in value to the letter of credit 
or the advance.



Sec. 211.34  Procedures for filing and processing notices.

    (a) Filing notice--(1) Prior notice of investment. An eligible 
investor shall give the Board 60 days' prior written notice of any 
investment in an export trading company.
    (2) Subsequent notice--(i) An eligible investor shall give the Board 
60 days' prior written notice of changes in the activities of an export 
trading company that is a subsidiary of the investor if the export 
trading company expands its activities beyond those described in the 
initial notice to include:
    (A) Taking title to goods where the export trading company does not 
have a firm order for the sale of those goods;
    (B) Product research and design;
    (C) Product modification; or
    (D) Activities not specifically covered by the list of activities 
contained in section 4(c)(14)(F)(ii) of the BHC Act.
    (ii) Such an expansion of activities shall be regarded as a proposed 
investment under this subpart.
    (b) Time period for Board action. (1) A proposed investment that has 
not been disapproved by the Board may be made 60 days after the Reserve 
Bank accepts the notice for processing. A proposed investment may be 
made before the expiration of the 60-day period if the Board notifies 
the investor in writing of its intention not to disapprove the 
investment.
    (2) The Board may extend the 60-day period for an additional 30 days 
if the Board determines that the investor has not furnished all 
necessary information or that any material information furnished is 
substantially inaccurate. The Board may disapprove an investment if the 
necessary information is provided within a time insufficient to allow 
the Board reasonably to consider the information received.
    (3) Within three days of a decision to disapprove an investment, the 
Board shall notify the investor in writing and state the reasons for the 
disapproval.
    (c) Time period for investment. An investment in an export trading 
company that has not been disapproved shall be made within one year from 
the date of the notice not to disapprove, unless the time period is 
extended by the Board or by the appropriate Reserve Bank.

[[Page 347]]

    (d) Time period for calculating revenues. For any export trading 
company that commenced operations two years or more prior to August 23, 
1988, the four-year period within which to calculate revenues derived 
from its activities under Sec. 211.32(a) of this part shall be deemed to 
have commenced with the beginning of the 1988 fiscal year for that 
export trading company. For all other export trading companies, the 
four-year period shall commence with the first fiscal year after the 
respective export trading company has been in operation for two years.



              Subpart D--International Lending Supervision

    Source:  49 FR 5592, Feb. 13, 1984, unless otherwise noted.



Sec. 211.41  Authority, purpose, and scope.

    (a) Authority. This subpart is issued by the Board of Governors of 
the Federal Reserve System (``Board'') under the authority of the 
International Lending Supervision Act of 1983 (Pub. L. 98-181, title IX, 
97 Stat. 1153) (``International Lending Supervision Act''); the Federal 
Reserve Act (12 U.S.C. 221 et seq.) (``FRA''), and the Bank Holding 
Company Act of 1956, as amended (12 U.S.C. 1841 et seq.) (``BHC Act'').
    (b) Purpose and scope. This subpart is issued in furtherance of the 
purposes of the International Lending Supervision Act. It applies to 
State banks that are members of the Federal Reserve System (``State 
member banks''); corporations organized under section 25(a) of the FRA 
(12 U.S.C. 611 through 631) (``Edge Corporations''); corporations 
operating subject to an agreement with the Board under section 25 of the 
FRA (12 U.S.C. 601 through 604a) (``Agreement Corporations''); and bank 
holding companies (as defined in section 2 of the BHC Act (12 U.S.C. 
1841(a)) but not including a bank holding company that is a foreign 
banking organization as defined in Sec. 211.21(n) of this regulation.
[49 FR 5592, Feb. 13, 1984, as amended at 58 FR 46076, Sept. 1, 1993]



Sec. 211.42  Definitions.

    For the purposes of this subpart:
    (a) Banking institution means a State member bank; bank holding 
company; Edge Corporation and Agreement Corporation engaged in banking. 
Banking institution does not include a foreign banking organization as 
defined in Sec. 211.21(n).
    (b) Federal banking agencies means the Board of Governors of the 
Federal Reserve System, the Comptroller of the Currency, and the Federal 
Deposit Insurance Corporation.
    (c) International assets means those assets required to be included 
in banking institutions' Country Exposure Report forms (FFIEC No. 009).
    (d) International loan means a loan as defined in the instructions 
to the Report of Condition and Income for the respective banking 
institution (FFIEC Nos. 031, 032, 033 and 034) and made to a foreign 
government, or to an individual, a corporation, or other entity not a 
citizen of, resident in, or organized or incorporated in the United 
States.
    (e) International syndicated loan means a loan characterized by the 
formation of a group of managing banking institutions and, in the usual 
case, assumption by them of underwriting commitments and participation 
in the loan by other banking institutions.
    (f) Loan agreement means the documents signed by all of the parties 
to a loan, containing the amount, terms and conditions of the loan, and 
the interest and fees to be paid by the borrower.
    (g) Restructed international loan means a loan that meets the 
following criteria:
    (1) The borrower is unable to service the existing loan according to 
its terms and is a resident of a foreign country in which there is a 
generalized inability of public and private sector obligors to meet 
their external debt obligations on a timely basis because of a lack of, 
or restraints on the availability of, needed foreign exchange in the 
country; and
    (2) The terms of the existing loan are amended to reduce stated 
interest or extend the schedule of payments; or
    (3) A new loan is made to, or for the benefit or, the borrower, 
enabling the borrower to service or refinance the existing debt.
    (h) Transfer risk means the possibility that an asset cannot be 
serviced in the

[[Page 348]]

currency of payment because of a lack of, or restraints on the 
availability of, needed foreign exchange in the country of the obligor.
[49 FR 5592, Feb. 13, 1984, as amended at 49 FR 12197, Mar. 29, 1984; 58 
FR 46076, Sept. 1, 1993]



Sec. 211.43  Allocated transfer risk reserve.

    (a) Establishment of Allocated Transfer Risk Reserve. A banking 
institution shall establish an allocated transfer risk reserve (ATRR) 
for specified international assets when required by the Board in 
accordance with this section.
    (b) Procedures and standards--(1) Joint agency determination. At 
least annually, the Federal banking agencies shall determine jointly, 
based on the standards set forth in paragraph (b)(2) of this section, 
the following:
    (i) Which international assets subject to transfer risk warrant 
establishment of an ATRR;
    (ii) The amount of the ATRR for the specified assets; and
    (iii) Whether an ATRR established for specified assets may be 
reduced.
    (2) Standards for requiring ATRR--(i) Evaluation of assets. The 
Federal banking agencies shall apply the following criteria in 
determining whether an ATRR is required for particular international 
assets:
    (A) Whether the quality of a banking institution's assets has been 
impaired by a protracted inability of public or private obligors in a 
foreign country to make payments on their external indebtedness as 
indicated by such factors, among others, as whether:
    (1) Such obligors have failed to make full interest payments on 
external indebtedness;
    (2) Such obligors have failed to comply with the terms of any 
restructured indebtedness; or
    (3) A foreign country has failed to comply with any International 
Monetary Fund or other suitable adjustment program; or
    (B) Whether no definite prospects exist for the orderly restoration 
of debt service.
    (ii) Determination of amount of ATRR. (A) In determining the amount 
of the ATRR, the Federal banking agencies shall consider:
    (1) The length of time the quality of the asset has been impaired;
    (2) Recent actions taken to restore debt service capability;
    (3) Prospects for restored asset quality; and
    (4) Such other factors as the Federal banking agencies may consider 
relevant to the quality of the asset.
    (B) The initial year's provision for the ATRR shall be ten percent 
of the principal amount of each specified international asset, or such 
greater or lesser percentage determined by the Federal banking agencies. 
Additional provision, if any, for the ATRR in subsequent years shall be 
fifteen percent of the principal amount of each specified international 
asset, or such greater or lesser percentage determined by the Federal 
banking agencies.
    (3) Board notification. Based on the joint agency determinations 
under paragraph (b)(1) of this section, the Board shall notify each 
banking institution holding assets subject to an ATRR:
    (i) Of the amount of the ATRR to be established by the institution 
for specified international assets; and
    (ii) That an ATRR established for specified assets may be reduced.
    (c) Accounting treatment of ATRR--(1) Charge to current income. A 
banking institution shall establish an ATRR by a charge to current 
income and the amounts so charged shall not be included in the banking 
institution's capital or surplus.
    (2) Separate accounting. A banking institution shall account for an 
ATRR separately from the Allowance for Possible Loan Losses, and shall 
deduct the ATRR from ``gross loans and leases'' to arrive at ``net loans 
and leases.'' The ATRR must be established for each asset subject to the 
ATRR in the percentage amount specified.
    (3) Consolidation. A banking institution shall establish an ATRR, as 
required, on a consolidated basis. For banks, consolidation should be in 
accordance with the procedures and tests of significance set forth in 
the instructions for preparation of Consolidated Reports of Condition 
and Income (FFIEC Nos. 031, 032, 033 and 034). For bank holding 
companies, the consolidation

[[Page 349]]

shall be in accordance with the principles set forth in the 
``Instructions to the Bank Holding Company Financial Supplement to 
Report F.R. Y-6'' (Form F.R. Y-9). Edge and Agreement corporations 
engaged in banking shall report in accordance with instructions for 
preparation of the Report of Condition for Edge and Agreement 
Corporations (Form F.R. 2886b).
    (4) Alternative accounting treatment. A banking institution need not 
establish an ATRR if it writes down in the period in which the ATRR is 
required, or has written down in prior periods, the value of the 
specified international assets in the requisite amount for each such 
asset. For purposes of this paragraph, international assets may be 
written down by a charge to the Allowance for Possible Loan Losses or a 
reduction in the principal amount of the asset by application of 
interest payments or other collections on the asset. However, the 
Allowance for Possible Loan Losses must be replenished in such amount 
necessary to restore it to a level which adequately provides for the 
estimated losses inherent in the banking institutions's loan portfolio.
    (5) Reduction of ATRR. A banking institution may reduce an ATRR when 
notified by the Board or, at any time, by writing down such amount of 
the international asset for which the ATRR was established.



Sec. 211.44  Reporting and disclosure of international assets.

    (a) Requirements. (1) Pursuant to section 907(a) of the 
International Lending Supervision Act of 1983 (Title IX, Pub. L. 98-181, 
97 Stat. 1153) (ILSA), a banking institution shall submit to the Board, 
at least quarterly, information regarding the amounts and composition of 
its holdings of international assets.
    (2) Pursuant to section 907(b) of ILSA, a banking institution shall 
submit to the Board information regarding concentrations in its holdings 
of international assets that are material in relation to total assets 
and to capital of the institution, such information to be made publicly 
available by the Board on request.
    (b) Procedures. The format, content and reporting and filing dates 
of the reports required under paragraph (a) of this section shall be 
determined jointly by the Federal banking agencies. The requirements to 
be prescribed by the agencies may include changes to existing reporting 
forms (such as the Country exposure Report, form FFIEC No. 009) or such 
other requirements as the agencies deem appropriate. The agencies also 
may determine to exempt from the requirements of paragraph (a) of this 
section banking institutions that, in the agencies' judgment, have de 
minimis holdings of international assets.
    (c) Reservation of authority. Nothing contained in this rule shall 
preclude the Board from requiring from a banking institution such 
additional or more frequent information on the institution's holding of 
international assets as the Board may consider necessary.
[49 FR 5587, Feb. 13, 1984]



Sec. 211.45  Accounting for fees on international loans.

    (a) Restrictions on fees for restructured international loans. No 
banking institution shall charge any fee in connection with a 
restructured international loan unless all fees exceeding the banking 
institution's administrative costs, as described in paragraph (c)(2) of 
this section, are deferred and recognized over the term of the loan as 
an interest yield adjustment.
    (b) Amortizing fees. Except as otherwise provided by this section, 
fees received on international loans shall be deferred and amortized 
over the term of the loan. The interest method should be used during the 
loan period to recognize the deferred fee revenue in relation to the 
outstanding loan balance. If it is not practicable to apply the interest 
method during the loan period, the straight-line method shall be used.
    (c) Accounting treatment of international loan or syndication 
administrative costs and corresponding fees. (1) Administrative costs of 
originating, restructuring or syndicating an international loan shall be 
expensed as incurred. A portion of the fee income equal to the banking 
institution's administrative costs may be recognized as income in the 
same period such costs are expensed.

[[Page 350]]

    (2) The administrative costs of originating, restructuring, or 
syndicating an international loan include those costs which are 
specifically identified with negotiating, processing and consummating 
the loan. These costs include, but are not necessarily limited to: legal 
fees; costs of preparing and processing loan documents; and an allocable 
portion of salaries and related benefits of employees engaged in the 
international lending function and, where applicable, the syndication 
function. No portion of supervisory and administrative expenses or other 
indirect expenses such as occupancy and other similar overhead costs 
shall be included.
    (d) Fees received by managing banking institutions in an 
international syndicated loan. Fees received on international syndicated 
loans representing an adjustment of the yield on the loan shall be 
recognized over the loan period using the interest method. If the 
interest yield portion of a fee received on an international syndicated 
loan by a managing banking institution is unstated or differs materially 
from the pro rata portion of fees paid other participants in the 
syndication, an amount necessary for an interest yield adjustment shall 
be recognized. This amount shall at least be equivalent (on a pro rata 
basis) to the largest fee received by a loan participant in the 
syndication that is not a managing banking institution. The remaining 
portion of the syndication fee may be recognized as income at the loan 
closing date to the extent that it is identified and documented as 
compensation for services in arranging the loan. Such documentation 
shall include the loan agreement. Otherwise, the fee shall be deemed an 
adjustment of yield.
    (e) Loan commitment fees. (1) Fees which are based upon the unfunded 
portion of a credit for the period until it is drawn and represent 
compensation for a binding commitment to provide funds or for rendering 
a service in issuing the commitment shall be recognized as income over 
the term of the commitment period using the straight-line method of 
amortization. Such fees for revolving credit arrangements, where the 
fees are received periodically in arrears and are based on the amount of 
the unused loan commitment, may be recognized as income when received 
provided the income result would not be materially different.
    (2) If it is not practicable to separate the commitment portion from 
other components of the fee, the entire fee shall be amortized over the 
term of the combined commitment and expected loan period. The straight-
line method of amortization should be used during the commitment period 
to recognize the fee revenue. The interest method should be used during 
the loan period to recognize the remaining fee revenue in relation to 
the outstanding loan balance. If the loan is funded before the end of 
the commitment period, any unamortized commitment fees shall be 
recognized as revenue at that time.
    (f) Agency fees. Fees paid to an agent banking institution for 
administrative services in an international syndicated loan shall be 
recognized at the time of the loan closing or as the service is 
performed, if later.
[49 FR 12197, Mar. 29, 1984]

                             Interpretations



Sec. 211.601  Status of certain offices for purposes of the International Banking Act restrictions on interstate banking operations.

    The Board has considered the question of whether a foreign bank's 
California office that may accept deposits from certain foreign sources 
(e.g., a United States citizen residing abroad) is a branch or an agency 
for the purposes of the grandfather provisions of section 5 of the 
International Banking Act of 1978 (12 U.S.C. 3103(b)). The question has 
arisen as a result of the definitions in the International Banking Act 
of branch and agency, and the limited deposit-taking capabilities of 
certain California offices of foreign banks.
    The International Banking Act defines agency as ``any office * * * 
at which deposits may not be accepted from citizens or residents of the 
United States,'' and defines branch as ``any office * * * of a foreign 
bank * * * at which deposits are received'' (12 U.S.C. 3101(1) and (3)). 
Offices of foreign banks in California prior to the International 
Banking Act were generally prohibited

[[Page 351]]

from accepting deposits by the requirement of State law that such 
offices obtain Federal deposit insurance (Cal. Fin. Code 1756); until 
the passage of the International Banking Act an office of a foreign bank 
could not obtain such insurance. California law, however, permits 
offices of foreign banks, with the approval of the Banking Department, 
to accept deposits from any person that resides, is domiciled, and 
maintains its principal place of business in a foreign country (Cal. 
Fin. Code 1756.2). Thus, under a literal reading of the definitions of 
branch and agency contained in the International Banking Act, a foreign 
bank's California office that accepts deposits from certain foreign 
sources (e.g., a U.S. citizen residing abroad), is a branch rather than 
an agency.
    Section 5 of the International Banking Act establishes certain 
limitations on the expansion of the domestic deposit-taking capabilities 
of a foreign bank outside its home State. It also grandfathers offices 
established or applied for prior to July 27, 1978, and permits a foreign 
bank to select its home State from among the States in which it operated 
branches and agencies on the grandfather date. If a foreign bank's 
office that was established or applied for prior to June 27, 1978, is a 
branch as defined in the International Banking Act, then it is 
grandfathered as a branch. Accordingly, a foreign bank could designate a 
State other than California as its home State and subsequently convert 
its California office to a full domestic deposit-taking facility by 
obtaining Federal deposit insurance. If, however, the office is 
determined to be an agency, then it is grandfathered as such and the 
foreign bank may may not expand its deposit-taking capabilities in 
California without declaring California its home State.
    In the Board's view, it would be inconsistent with the purposes and 
the legislative history of the International Banking Act to enable a 
foreign bank to expand its domestic interstate deposit-taking 
capabilities by grandfathering these California offices as branches 
because of their ability to receive certain foreign source deposits. The 
Board also notes that such deposits are of the same general type that 
may be received by an Edge Corporation and, hence in accordance with 
section 5(a) of the International Banking Act, by branches established 
and operated outside a foreign bank's home State. It would be 
inconsistent with the structure of the interstate banking provisions of 
the International Banking Act to grandfather as full deposit-taking 
offices those facilities whose activities have been determined by 
Congress to be appropriate for a foreign bank's out-of-home State 
branches.
    Accordingly, the Board, in administering the interstate banking 
provisions of the IBA, regards as agencies those offices of foreign 
banks that do not accept domestic deposits but that may accept deposits 
from any person that resides, is domiciled, and maintains its principal 
place of business in a foreign country.
[45 FR 67309, Oct. 10, 1980]



Sec. 211.602  Investments by United States Banking Organizations in foreign companies that transact business in the United States.

    Section 25(a) of the Federal Reserve Act (12 U.S.C. 611, the ``Edge 
Act'') provides for the establishment of corporations to engage in 
international or foreign banking or other international or foreign 
financial operations (``Edge Corporations''). Congress has declared that 
Edge Corporations are to serve the purpose of stimulating the provision 
of international banking and financing services throughout the United 
States and are to have powers sufficiently broad to enable them to 
compete effectively with foreign-owned institutions in the United States 
and abroad. The Board was directed by the International Banking Act of 
1978 (12 U.S.C. 3101) to revise its regulations governing Edge 
Corporations in order to accomplish these and other objectives and was 
further directed to modify or eliminate any interpretations that impede 
the attainment of these purposes.
    One of the powers of Edge Corporations is that of investing in 
foreign companies. Under the relevant statutes, however, an Edge 
Corporation is prohibited from investing in foreign companies that 
engage in the general business of buying or selling goods,

[[Page 352]]

wares, merchandise or commodities in the United States. In addition, an 
Edge Corporation may not invest in foreign companies that transact any 
business in the United States that is not, in the Board's judgment, 
``incidental'' to its international or foreign business. The latter 
limitation also applies to investments by bank holding companies (12 
U.S.C. 1843(c)(13)) and member banks (12 U.S.C. 601).
    The Board has been asked to determine whether an Edge Corporation's 
minority investment (involving less than 25 percent of the voting 
shares) in a foreign company would continue to be permissible after the 
foreign company establishes or acquires a United States subsidiary that 
engages in domestic activities that are closely related to banking. The 
Board has also been asked to determine whether an Edge Corporation's 
minority investment in a foreign bank would continue to be permissible 
after the foreign bank establishes a branch in the United States that 
engages in domestic banking activities. In the latter case, the branch 
would be located outside the State in which the Edge Corporation and its 
parent bank are located.
    In the past the Board, in exercising its discretionary authority to 
determine those activities that are permissible in the United States, 
has followed the policy that an Edge Corporation could not hold even a 
minority interest in a foreign company that engaged, directly or 
indirectly, in any purely domestic business in the United States. The 
United States activities considered permissible were those 
internationally related activities that Edge Corporations may engage in 
directly. If this policy were applied to the subject requests, the Edge 
Corporations would be required to divest their interests in the foreign 
companies notwithstanding the fact that, in each case, the Edge 
Corporation, as a minority investor, did not control the decision to 
undertake activities in the United States, and that even after the 
United States activities are undertaken the business of the foreign 
company will remain predominantly outside the United States.
    International banking and finance have undergone considerable growth 
and change in recent years. It is increasingly common, for example, for 
United States institutions to have direct or indirect offices in foreign 
countries and to engage in activities at those offices that are 
domestically as well as internationally oriented. In this climate, 
United States banking organizations would be placed at a competitive 
disadvantage if their minority investments in foreign companies were 
limited to those companies that do no domestic business in the United 
States. Moreover, continued adherence to the existing policy would be 
contrary to the declaration in the International Banking Act of 1978 
that Edge Corporations' powers are to be sufficiently broad to enable 
them to compete effectively in the United States and abroad. 
Furthermore, where the activities to be conducted in the United States 
by the foreign company are banking or closely related to banking, it 
does not appear that any regulatory or supervisory purpose would be 
served by prohibiting a minority investment in the foreign firm by a 
United States banking organization.
    In view of these considerations, the Board has reviewed its policy 
relating to the activities that may be engaged in in the United States 
by foreign companies (including foreign banks) in which Edge 
Corporations, member banks, and bank holding companies invest. As a 
result of that review, the Board has determined that it would be 
appropriate to interpret sections 25 and 25(a)of the Federal Reserve Act 
(12 U.S.C. 601, 611) and section 4(c)(13) of the Bank Holding Company 
Act (12 U.S.C. 1843(c)(13)) generally to allow United States banking 
organizations, with the prior consent of the Board, to acquire and hold 
investments in foreign companies that do business in the United States 
subject to the following conditions:
    (1) The foreign company is engaged predominantly in business outside 
the United States or in internationally related activities in the United 
States;*

[[Page 353]]

(2) the direct or indirect activities of the foreign company in the 
United States are either banking or closely related to banking; and (3) 
the United States banking organization does not own 25 percent or more 
of the voting stock of, or otherwise control, the foreign company. In 
considering whether to grant its consent for such investments, the Board 
would also review the proposals to ensure that they are consistent with 
the purposes of the Bank Holding Company Act and the Federal Reserve 
Act.
---------------------------------------------------------------------------


    *This condition would ordinarily not be met where a foreign company 
merely maintains a majority of its business in international activities. 
Each case will be scrutinized to ensure that the activities in the 
United States do not alter substantially the international orientation 
of the foreign company's business.
---------------------------------------------------------------------------

[46 FR 8437, Jan. 27, 1981]



Sec. 211.603  Commodity swap transactions.

    For text of interpretation relating to this subject, see 
Sec. 208.128 of this chapter.
[56 FR 63408, Dec. 4, 1991]



PART 212--MANAGEMENT OFFICIAL INTERLOCKS--Table of Contents




Sec.
212.1  Authority, purpose, and scope.
212.2  Definitions.
212.3  Prohibitions.
212.4  Interlocking relationships permitted by statute.
212.5  Regulatory Standards exemption.
212.6  Management Consignment exemption.
212.7  Change in circumstances.
212.8  Enforcement.
212.9  Effect of Interlocks Act on Clayton Act.

    Authority:  12 U.S.C. 3201-3208; 15 U.S.C. 19.

    Source:  61 FR 40302, Aug. 2, 1996, unless otherwise noted.



Sec. 212.1  Authority, purpose, and scope.

    (a) Authority. This part is issued under the provisions of the 
Depository Institution Management Interlocks Act (Interlocks Act) (12 
U.S.C. 3201 et seq.), as amended.
    (b) Purpose. The purpose of the Interlocks Act and this part is to 
foster competition by generally prohibiting a management official from 
serving two nonaffiliated depository organizations in situations where 
the management interlock likely would have an anticompetitive effect.
    (c) Scope. This part applies to management officials of state member 
banks, bank holding companies, and their affiliates.



Sec. 212.2  Definitions.

    For purposes of this part, the following definitions apply:
    (a) Affiliate. (1) The term affiliate has the meaning given in 
section 202 of the Interlocks Act (12 U.S.C. 3201). For purposes of that 
section 202, shares held by an individual include shares held by members 
of his or her immediate family. ``Immediate family'' means spouse, 
mother, father, child, grandchild, sister, brother, or any of their 
spouses, whether or not any of their shares are held in trust.
    (2) For purposes of section 202(3)(B) of the Interlocks Act (12 
U.S.C. 3201(3)(B)), an affiliate relationship based on common ownership 
does not exist if the Board determines, after giving the affected 
persons the opportunity to respond, that the asserted affiliation was 
established in order to avoid the prohibitions of the Interlocks Act and 
does not represent a true commonality of interest between the depository 
organizations. In making this determination, the Board considers, among 
other things, whether a person, including members of his or her 
immediate family, whose shares are necessary to constitute the group 
owns a nominal percentage of the shares of one of the organizations and 
the percentage is substantially disproportionate to that person's 
ownership of shares in the other organization.
    (b) Anticompetitive effect means a monopoly or substantial lessening 
of competition.
    (c) Area median income means:
    (1) The median family income for the metropolitan statistical area 
(MSA), if a depository organization is located in an MSA; or
    (2) The statewide nonmetropolitan median family income, if a 
depository organization is located outside an MSA.
    (d) Community means a city, town, or village, and contiguous and 
adjacent cities, towns, or villages.
    (e) Contiguous or adjacent cities, towns, or villages means cities, 
towns, or villages whose borders touch each other

[[Page 354]]

or whose borders are within 10 road miles of each other at their closest 
points. The property line of an office located in an unincorporated 
city, town, or village is the boundary line of that city, town, or 
village for the purpose of this definition.
    (f) Critical, as used in Sec. 212.5, means important to restoring or 
maintaining a depository organization's safe and sound operations.
    (g) Depository holding company means a bank holding company or a 
savings and loan holding company (as more fully defined in section 202 
of the Interlocks Act (12 U.S.C. 3201)) having its principal office 
located in the United States.
    (h) Depository institution means a commercial bank (including a 
private bank), a savings bank, a trust company, a savings and loan 
association, a building and loan association, a homestead association, a 
cooperative bank, an industrial bank, or a credit union, chartered under 
the laws of the United States and having a principal office located in 
the United States. Additionally, a United States office, including a 
branch or agency, of a foreign commercial bank is a depository 
institution.
    (i) Depository institution affiliate means a depository institution 
that is an affiliate of a depository organization.
    (j) Depository organization means a depository institution or a 
depository holding company.
    (k) Low- and moderate-income areas means census tracts (or, if an 
area is not in a census tract, block numbering areas delineated by the 
United States Bureau of the Census) where the median family income is 
less than 100 percent of the area median income.
    (l) Management official. (1) The term management official means:
    (i) A director;
    (ii) An advisory or honorary director of a depository institution 
with total assets of $100 million or more;
    (iii) A senior executive officer as that term is defined in 12 CFR 
225.71(a);
    (iv) A branch manager;
    (v) A trustee of a depository organization under the control of 
trustees; and
    (vi) Any person who has a representative or nominee, as defined in 
paragraph (p) of this section, serving in any of the capacities in this 
paragraph (l)(1).
    (2) The term management official does not include:
    (i) A person whose management functions relate exclusively to the 
business of retail merchandising or manufacturing;
    (ii) A person whose management functions relate principally to a 
foreign commercial bank's business outside the United States; or
    (iii) A person described in the provisos of section 202(4) of the 
Interlocks Act (referring to an officer of a State-chartered savings 
bank, cooperative bank, or trust company that neither makes real estate 
mortgage loans nor accepts savings).
    (m) Office means a principal or branch office of a depository 
institution located in the United States. Office does not include a 
representative office of a foreign commercial bank, an electronic 
terminal, a loan production office, or any office of a depository 
holding company.
    (n) Person means a natural person, corporation, or other business 
entity.
    (o) Relevant metropolitan statistical area (RMSA) means an MSA, a 
primary MSA, or a consolidated MSA that is not comprised of designated 
Primary MSAs to the extent that these terms are defined and applied by 
the Office of Management and Budget.
    (p) Representative or nominee means a natural person who serves as a 
management official and has an obligation to act on behalf of another 
person with respect to management responsibilities. The Board will find 
that a person has an obligation to act on behalf of another person only 
if the first person has an agreement, express or implied, to act on 
behalf of the second person with respect to management responsibilities. 
The Board will determine, after giving the affected persons an 
opportunity to respond, whether a person is a representative or nominee.
    (q) Total assets. (1) The term total assets means assets measured on 
a consolidated basis and reported in the most recent fiscal year-end 
Consolidated Report of Condition and Income.
    (2) The term total assets does not include:

[[Page 355]]

    (i) Assets of a diversified savings and loan holding company as 
defined by section 10(a)(1)(F) of the Home Owners' Loan Act (12 U.S.C. 
1467a(a)(1)(F)) other than the assets of its depository institution 
affiliate;
    (ii) Assets of a bank holding company that is exempt from the 
prohibitions of section 4 of the Bank Holding Company Act of 1956 
pursuant to an order issued under section 4(d) of that Act (12 U.S.C. 
1843(d)) other than the assets of its depository institution affiliate; 
or
    (iii) Assets of offices of a foreign commercial bank other than the 
assets of its United States branch or agency.
    (r) United States means the United States of America, any State or 
territory of the United States of America, the District of Columbia, 
Puerto Rico, Guam, American Samoa, and the Virgin Islands.



Sec. 212.3  Prohibitions.

    (a) Community. A management official of a depository organization 
may not serve at the same time as a management official of an 
unaffiliated depository organization if the depository organizations in 
question (or a depository institution affiliate thereof) have offices in 
the same community.
    (b) RMSA. A management official of a depository organization may not 
serve at the same time as a management official of an unaffiliated 
depository organization if the depository organizations in question (or 
a depository institution affiliate thereof) have offices in the same 
RMSA and each depository organization has total assets of $20 million or 
more.
    (c) Major assets. A management official of a depository organization 
with total assets exceeding $1 billion (or any affiliate thereof) may 
not serve at the same time as a management official of an unaffiliated 
depository organization with total assets exceeding $500 million (or any 
affiliate thereof), regardless of the location of the two depository 
organizations.



Sec. 212.4  Interlocking relationships permitted by statute.

    The prohibitions of Sec. 212.3 do not apply in the case of any one 
or more of the following organizations or to a subsidiary thereof:
    (a) A depository organization that has been placed formally in 
liquidation, or which is in the hands of a receiver, conservator, or 
other official exercising a similar function;
    (b) A corporation operating under section 25 or section 25A of the 
Federal Reserve Act (12 U.S.C. 601 et seq. and 12 U.S.C. 611 et seq., 
respectively) (Edge Corporations and Agreement Corporations);
    (c) A credit union being served by a management official of another 
credit union;
    (d) A depository organization that does not do business within the 
United States except as an incident to its activities outside the United 
States;
    (e) A State-chartered savings and loan guaranty corporation;
    (f) A Federal Home Loan Bank or any other bank organized solely to 
serve depository institutions (a bankers' bank) or solely for the 
purpose of providing securities clearing services and services related 
thereto for depository institutions and securities companies;
    (g) A depository organization that is closed or is in danger of 
closing as determined by the appropriate Federal depository 
institution's regulatory agency and is acquired by another depository 
organization. This exemption lasts for five years, beginning on the date 
the depository organization is acquired; and
    (h)(1) A diversified savings and loan holding company (as defined in 
section 10(a)(1)(F) of the Home Owners' Loan Act (12 U.S.C. 
1467a(a)(1)(F)) with respect to the service of a director of such 
company who also is a director of an unaffiliated depository 
organization if:
    (i) Both the diversified savings and loan holding company and the 
unaffiliated depository organization notify their appropriate Federal 
depository institutions regulatory agency at least 60 days before the 
dual service is proposed to begin; and
    (ii) The appropriate regulatory agency does not disapprove the dual 
service before the end of the 60-day period.
    (2) The Board may disapprove a notice of proposed service if it 
finds that:

[[Page 356]]

    (i) The service cannot be structured or limited so as to preclude an 
anticompetitive effect in financial services in any part of the United 
States;
    (ii) The service would lead to substantial conflicts of interest or 
unsafe or unsound practices; or
    (iii) The notificant failed to furnish all the information required 
by the Board.
    (3) The Board may require that any interlock permitted under this 
paragraph (h) be terminated if a change in circumstances occurs with 
respect to one of the interlocked depository organizations that would 
have provided a basis for disapproval of the interlock during the notice 
period.



Sec. 212.5  Regulatory Standards exemption.

    (a) Criteria. The Board may permit an interlock that otherwise would 
be prohibited by the Interlocks Act and Sec. 212.3 if:
    (1) The board of directors of the depository organization (or the 
organizers of a depository organization being formed) that seeks the 
exemption provides a resolution to the Board certifying that the 
organization, after the exercise of reasonable efforts, is unable to 
locate any other candidate from the community or RMSA, as appropriate, 
who:
    (i) Possesses the level of expertise required by the depository 
organization and who is not prohibited from service by the Interlocks 
Act; and
    (ii) Is willing to serve as a management official; and
    (2) The Board, after reviewing an application submitted by the 
depository organization seeking the exemption, determines that:
    (i) The management official is critical to the safe and sound 
operations of the affected depository organization; and
    (ii) Service by the management official will not produce an 
anticompetitive effect with respect to the depository organization.
    (b) Presumptions. The Board applies the following presumptions when 
reviewing any application for a Regulatory Standards exemption:
    (1) An interlock will not have an anticompetitive effect if it 
involves depository organizations that, if merged, would not cause the 
post-merger Herfindahl-Hirschman Index (HHI) to exceed 1800 and would 
not cause the HHI to increase by more than 200 points. This presumption 
does not apply to depository organizations subject to the Major Assets 
prohibition of Sec. 212.3(c).
    (2) A proposed management official is critical to the safe and sound 
operations of a depository institution if:
    (i) That official is approved by the Board to serve as a director or 
senior executive officer of that institution pursuant to 12 CFR 225.71; 
and
    (ii) The institution had operated for less than two years, was not 
in compliance with minimum capital requirements, or otherwise was in a 
``troubled condition'' as defined in 12 CFR 225.71 at the time the 
service under that section was approved.
    (c) Duration of interlock. An interlock permitted under this section 
may continue until the Board notifies the affected depository 
organizations otherwise. The Board may require termination of any 
interlock permitted under this section if the Board concludes, after 
giving the affected persons the opportunity to respond, that the 
determinations under paragraph (a)(2) of this section no longer may be 
made. A management official may continue serving the depository 
organization involved in the interlock for a period of 15 months 
following the date of the order to terminate the interlock. The Board 
may shorten this period under appropriate circumstances.



Sec. 212.6  Management Consignment exemption.

    (a) Criteria. The Board may permit an interlock that otherwise would 
be prohibited by the Interlocks Act and Sec. 212.3 if the Board, after 
reviewing an application submitted by the depository organization 
seeking an exemption, determines that the interlock would:
    (1) Improve the provision of credit to low- and moderate-income 
areas;
    (2) Increase the competitive position of a minority- or women-owned 
depository organization;
    (3) Strengthen the management of a depository institution that has 
been chartered for less than two years at the

[[Page 357]]

time an application is filed under this part; or
    (4) Strengthen the management of a depository institution that is in 
an unsafe or unsound condition as determined by the Board on a case-by-
case basis.
    (b) Presumptions. The Board applies the following presumptions in 
reviewing any application for a Management Consignment exemption:
    (1) A proposed management official is capable of strengthening the 
management of a depository institution described in paragraph (a)(3) of 
this section if that official is approved by the Board to serve as a 
director or senior executive officer of that institution pursuant to 12 
CFR 225.71 and the institution had operated for less than two years at 
the time the service was approved; and
    (2) A proposed management official is capable of strengthening the 
management of a depository institution described in paragraph (a)(4) of 
this section if the official is approved by the Board to serve as a 
director or senior executive officer of the institution pursuant to 12 
CFR 225.71 and the institution was not in compliance with minimum 
capital requirements or otherwise was in a ``troubled condition'' as 
defined under 12 CFR 225.71 at the time service was approved.
    (c) Duration of interlock. An interlock granted under this section 
may continue for a period of two years from the date of approval. The 
Board may extend this period for one additional two-year period if the 
depository organization applies for an extension at least 30 days before 
the current exemption expires and satisfies one of the criteria 
specified in paragraph (a) of this section. The provisions set forth in 
paragraph (b) of this section also apply to applications for extensions.



Sec. 212.7  Change in circumstances.

    (a) Termination. A management official shall terminate his or her 
service or apply for an exemption to the Interlocks Act if a change in 
circumstances causes the service to become prohibited under that Act. A 
change in circumstances may include, but is not limited to, an increase 
in asset size of an organization, a change in the delineation of the 
RMSA or community, the establishment of an office, an acquisition, a 
merger, a consolidation, or any reorganization of the ownership 
structure of a depository organization that causes a previously 
permissible interlock to become prohibited.
    (b) Transition period. A management official described in paragraph 
(a) of this section may continue to serve the state member bank or bank 
holding company involved in the interlock for 15 months following the 
date of the change in circumstances. The Board may shorten this period 
under appropriate circumstances.



Sec. 212.8  Enforcement.

    Except as provided in this section, the Board administers and 
enforces the Interlocks Act with respect to state member banks, bank 
holding companies, and affiliates of either, and may refer any case of a 
prohibited interlocking relationship involving these entities to the 
Attorney General of the United States to enforce compliance with the 
Interlocks Act and this part. If an affiliate of a state member bank or 
a bank holding company is subject to the primary regulation of another 
Federal depository organization supervisory agency, then the Board does 
not administer and enforce the Interlocks Act with respect to that 
affiliate.



Sec. 212.9  Effect of Interlocks Act on Clayton Act.

    The Board regards the provisions of the first three paragraphs of 
section 8 of the Clayton Act (15 U.S.C. 19) to have been supplanted by 
the revised and more comprehensive prohibitions on management official 
interlocks between depository organizations in the Interlocks Act.



PART 213--CONSUMER LEASING (REGULATION M)--Table of Contents




Sec.
213.1  Authority, scope, purpose, and enforcement.
213.2  Definitions.
213.3  General disclosure requirements.
213.4  Content of disclosures.
213.5  Renegotiations, extensions, and assumptions.
213.6  [Reserved]
213.7  Advertising.

[[Page 358]]

213.8  Record retention.
213.9  Relation to state laws.


Appendix A to Part 213--Model Forms
Appendix B to Part 213--Federal Enforcement Agencies
Appendix C to Part 213--Issuance of Staff Interpretations
Supplement I to Part 213--Official Staff Commentary to Regulation M

    Authority:  15 U.S.C. 1604.

    Source:  Reg. M, 61 FR 52258, Oct. 7, 1996, unless otherwise noted.



Sec. 213.1  Authority, scope, purpose, and enforcement.

    (a) Authority. The regulation in this part, known as Regulation M, 
is issued by the Board of Governors of the Federal Reserve System to 
implement the consumer leasing provisions of the Truth in Lending Act, 
which is Title I of the Consumer Credit Protection Act, as amended (15 
U.S.C. 1601 et seq.). 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 control number 7100-0202.
    (b) Scope and purpose. This part applies to all persons that are 
lessors of personal property under consumer leases as those terms are 
defined in Sec. 213.2(e)(1) and (h). The purpose of this part is:
    (1) To ensure that lessees of personal property receive meaningful 
disclosures that enable them to compare lease terms with other leases 
and, where appropriate, with credit transactions;
    (2) To limit the amount of balloon payments in consumer lease 
transactions; and
    (3) To provide for the accurate disclosure of lease terms in 
advertising.
    (c) Enforcement and liability. Section 108 of the act contains the 
administrative enforcement provisions. Sections 112, 130, 131, and 185 
of the act contain the liability provisions for failing to comply with 
the requirements of the act and this part.
[Reg. M, 61 FR 52258, Oct. 7, 1996, as amended at 62 FR 15367, Apr. 1, 
1997]



Sec. 213.2  Definitions.

    For the purposes of this part the following definitions apply:
    (a) Act means the Truth in Lending Act (15 U.S.C. 1601 et seq.) and 
the Consumer Leasing Act is chapter 5 of the Truth in Lending Act.
    (b) Advertisement means a commercial message in any medium that 
directly or indirectly promotes a consumer lease transaction.
    (c) Board refers to the Board of Governors of the Federal Reserve 
System.
    (d) Closed-end lease means a consumer lease other than an open-end 
lease as defined in this section.
    (e)(1) Consumer lease means a contract in the form of a bailment or 
lease for the use of personal property by a natural person primarily for 
personal, family, or household purposes, for a period exceeding four 
months and for a total contractual obligation not exceeding $25,000, 
whether or not the lessee has the option to purchase or otherwise become 
the owner of the property at the expiration of the lease. Unless the 
context indicates otherwise, in this part ``lease'' means ``consumer 
lease.''
    (2) The term does not include a lease that meets the definition of a 
credit sale in Regulation Z (12 CFR 226.2(a)). It also does not include 
a lease for agricultural, business, or commercial purposes or a lease 
made to an organization.
    (3) This part does not apply to a lease transaction of personal 
property which is incident to the lease of real property and which 
provides that:
    (i) The lessee has no liability for the value of the personal 
property at the end of the lease term except for abnormal wear and tear; 
and
    (ii) The lessee has no option to purchase the leased property.
    (f) Gross capitalized cost means the amount agreed upon by the 
lessor and the lessee as the value of the leased property and any items 
that are capitalized or amortized during the lease term, including but 
not limited to taxes, insurance, service agreements, and any outstanding 
prior credit or lease balance. Capitalized cost reduction means the 
total amount of any rebate, cash payment, net trade-in allowance, and 
noncash credit that reduces the gross capitalized cost. The adjusted 
capitalized cost equals the gross capitalized cost less the capitalized 
cost reduction,

[[Page 359]]

and is the amount used by the lessor in calculating the base periodic 
payment.
    (g) Lessee means a natural person who enters into or is offered a 
consumer lease.
    (h) Lessor means a person who regularly leases, offers to lease, or 
arranges for the lease of personal property under a consumer lease. A 
person who has leased, offered, or arranged to lease personal property 
more than five times in the preceding calendar year or more than five 
times in the current calendar year is subject to the act and this part.
    (i) Open-end lease means a consumer lease in which the lessee's 
liability at the end of the lease term is based on the difference 
between the residual value of the leased property and its realized 
value.
    (j) Organization means a corporation, trust, estate, partnership, 
cooperative, association, or government entity or instrumentality.
    (k) Person means a natural person or an organization.
    (l) Personal property means any property that is not real property 
under the law of the state where the property is located at the time it 
is offered or made available for lease.
    (m) Realized value means:
    (1) The price received by the lessor for the leased property at 
disposition;
    (2) The highest offer for disposition of the leased property; or
    (3) The fair market value of the leased property at the end of the 
lease term.
    (n) Residual value means the value of the leased property at the end 
of the lease term, as estimated or assigned at consummation by the 
lessor, used in calculating the base periodic payment.
    (o) Security interest and security mean any interest in property 
that secures the payment or performance of an obligation.
    (p) State means any state, the District of Columbia, the 
Commonwealth of Puerto Rico, and any territory or possession of the 
United States.
[Reg. M, 61 FR 52258, Oct. 7, 1996, as amended at 62 FR 15367, Apr. 1, 
1997]



Sec. 213.3  General disclosure requirements.

    (a) General requirements. A lessor shall make the disclosures 
required by Sec. 213.4, as applicable. The disclosures shall be made 
clearly and conspicuously in writing in a form the consumer may keep, in 
accordance with this section.
    (1) Form of disclosures. The disclosures required by Sec. 213.4 
shall be given to the lessee together in a dated statement that 
identifies the lessor and the lessee; the disclosures may be made either 
in a separate statement that identifies the consumer lease transaction 
or in the contract or other document evidencing the lease. 
Alternatively, the disclosures required to be segregated from other 
information under paragraph (a)(2) of this section may be provided in a 
separate dated statement that identifies the lease, and the other 
required disclosures may be provided in the lease contract or other 
document evidencing the lease. In a lease of multiple items, the 
property description required by Sec. 213.4(a) may be given in a 
separate statement that is incorporated by reference in the disclosure 
statement required by this paragraph.
    (2) Segregation of certain disclosures. The following disclosures 
shall be segregated from other information and shall contain only 
directly related information: Secs. 213.4(b) through (f), (g)(2), 
(h)(3), (i)(1), (j), and (m)(1). The headings, content, and format for 
the disclosures referred to in this paragraph (a)(2) shall be provided 
in a manner substantially similar to the applicable model form in 
appendix A of this part.
    (3) Timing of disclosures. A lessor shall provide the disclosures to 
the lessee prior to the consummation of a consumer lease.
    (4) Language of disclosures. The disclosures required by Sec. 213.4 
may be made in a language other than English provided that they are made 
available in English upon the lessee's request.
    (b) Additional information; nonsegregated disclosures. Additional 
information may be provided with any disclosure not listed in paragraph 
(a)(2) of this section, but it shall not be stated, used, or placed so 
as to mislead or confuse the lessee or contradict, obscure, or detract 
attention from any disclosure required by this part.
    (c) Multiple lessors or lessees. When a transaction involves more 
than one lessor, the disclosures required by this

[[Page 360]]

part may be made by one lessor on behalf of all the lessors. When a 
lease involves more than one lessee, the lessor may provide the 
disclosures to any lessee who is primarily liable on the lease.
    (d) Use of estimates. If an amount or other item needed to comply 
with a required disclosure is unknown or unavailable after reasonable 
efforts have been made to ascertain the information, the lessor may use 
a reasonable estimate that is based on the best information available to 
the lessor, is clearly identified as an estimate, and is not used to 
circumvent or evade any disclosures required by this part.
    (e) Effect of subsequent occurrence. If a required disclosure 
becomes inaccurate because of an event occurring after consummation, the 
inaccuracy is not a violation of this part.
    (f) Minor variations. A lessor may disregard the effects of the 
following in making disclosures:
    (1) That payments must be collected in whole cents;
    (2) That dates of scheduled payments may be different because a 
scheduled date is not a business day;
    (3) That months have different numbers of days; and
    (4) That February 29 occurs in a leap year.



Sec. 213.4  Content of disclosures.

    For any consumer lease subject to this part, the lessor shall 
disclose the following information, as applicable:
    (a) Description of property. A brief description of the leased 
property sufficient to identify the property to the lessee and lessor.
    (b) Amount due at lease signing or delivery. The total amount to be 
paid prior to or at consummation or by delivery, if delivery occurs 
after consummation, using the term ``amount due at lease signing or 
delivery.'' The lessor shall itemize each component by type and amount, 
including any refundable security deposit, advance monthly or other 
periodic payment, and capitalized cost reduction; and in motor-vehicle 
leases, shall itemize how the amount due will be paid, by type and 
amount, including any net trade-in allowance, rebates, noncash credits, 
and cash payments in a format substantially similar to the model forms 
in appendix A of this part.
    (c) Payment schedule and total amount of periodic payments. The 
number, amount, and due dates or periods of payments scheduled under the 
lease, and the total amount of the periodic payments.
    (d) Other charges. The total amount of other charges payable to the 
lessor, itemized by type and amount, that are not included in the 
periodic payments. Such charges include the amount of any liability the 
lease imposes upon the lessee at the end of the lease term; the 
potential difference between the residual and realized values referred 
to in paragraph (k) of this section is excluded.
    (e) Total of payments. The total of payments, with a description 
such as ``the amount you will have paid by the end of the lease.'' This 
amount is the sum of the amount due at lease signing (less any 
refundable amounts), the total amount of periodic payments (less any 
portion of the periodic payment paid at lease signing), and other 
charges under paragraphs (b), (c), and (d) of this section. In an open-
end lease, a description such as ``you will owe an additional amount if 
the actual value of the vehicle is less than the residual value'' shall 
accompany the disclosure.
    (f) Payment calculation. In a motor-vehicle lease, a mathematical 
progression of how the scheduled periodic payment is derived, in a 
format substantially similar to the applicable model form in appendix A 
of this part, which shall contain the following:
    (1) Gross capitalized cost. The gross capitalized cost, including a 
disclosure of the agreed upon value of the vehicle, a description such 
as ``the agreed upon value of the vehicle [state the amount] and any 
items you pay for over the lease term (such as service contracts, 
insurance, and any outstanding prior credit or lease balance),'' and a 
statement of the lessee's option to receive a separate written 
itemization of the gross capitalized cost. If requested by the lessee, 
the itemization shall be provided before consummation.
    (2) Capitalized cost reduction. The capitalized cost reduction, with 
a description such as ``the amount of any net trade-in allowance, 
rebate, noncash

[[Page 361]]

credit, or cash you pay that reduces the gross capitalized cost.''
    (3) Adjusted capitalized cost. The adjusted capitalized cost, with a 
description such as ``the amount used in calculating your base 
[periodic] payment.''
    (4) Residual value. The residual value, with a description such as 
``the value of the vehicle at the end of the lease used in calculating 
your base [periodic] payment.''
    (5) Depreciation and any amortized amounts. The depreciation and any 
amortized amounts, which is the difference between the adjusted 
capitalized cost and the residual value, with a description such as 
``the amount charged for the vehicle's decline in value through normal 
use and for any other items paid over the lease term.''
    (6) Rent charge. The rent charge, with a description such as ``the 
amount charged in addition to the depreciation and any amortized 
amounts.'' This amount is the difference between the total of the base 
periodic payments over the lease term minus the depreciation and any 
amortized amounts.
    (7) Total of base periodic payments. The total of base periodic 
payments with a description such as ``depreciation and any amortized 
amounts plus the rent charge.''
    (8) Lease term. The lease term with a description such as ``the 
number of [periods of repayment] in your lease.''
    (9) Base periodic payment. The total of the base periodic payments 
divided by the number of payment periods in the lease.
    (10) Itemization of other charges. An itemization of any other 
charges that are part of the periodic payment.
    (11) Total periodic payment. The sum of the base periodic payment 
and any other charges that are part of the periodic payment.
    (g) Early termination--(1) Conditions and disclosure of charges. A 
statement of the conditions under which the lessee or lessor may 
terminate the lease prior to the end of the lease term; and the amount 
or a description of the method for determining the amount of any penalty 
or other charge for early termination, which must be reasonable.
    (2) Early-termination notice. In a motor-vehicle lease, a notice 
substantially similar to the following: ``Early Termination. You may 
have to pay a substantial charge if you end this lease early. The charge 
may be up to several thousand dollars. The actual charge will depend on 
when the lease is terminated. The earlier you end the lease, the greater 
this charge is likely to be.''
    (h) Maintenance responsibilities. The following provisions are 
required:
    (1) Statement of responsibilities. A statement specifying whether 
the lessor or the lessee is responsible for maintaining or servicing the 
leased property, together with a brief description of the 
responsibility;
    (2) Wear and use standard. A statement of the lessor's standards for 
wear and use (if any), which must be reasonable; and
    (3) Notice of wear and use standard. In a motor-vehicle lease, a 
notice regarding wear and use substantially similar to the following: 
``Excessive Wear and Use. You may be charged for excessive wear based on 
our standards for normal use.'' The notice shall also specify the amount 
or method for determining any charge for excess mileage.
    (i) Purchase option. A statement of whether or not the lessee has 
the option to purchase the leased property, and:
    (1) End of lease term. If at the end of the lease term, the purchase 
price; and
    (2) During lease term. If prior to the end of the lease term, the 
purchase price or the method for determining the price and when the 
lessee may exercise this option.
    (j) Statement referencing nonsegregated disclosures. A statement 
that the lessee should refer to the lease documents for additional 
information on early termination, purchase options and maintenance 
responsibilities, warranties, late and default charges, insurance, and 
any security interests, if applicable.
    (k) Liability between residual and realized values. A statement of 
the lessee's liability, if any, at early termination or at the end of 
the lease term for the difference between the residual value of the 
leased property and its realized value.
    (l) Right of appraisal. If the lessee's liability at early 
termination or at the

[[Page 362]]

end of the lease term is based on the realized value of the leased 
property, a statement that the lessee may obtain, at the lessee's 
expense, a professional appraisal by an independent third party (agreed 
to by the lessee and the lessor) of the value that could be realized at 
sale of the leased property. The appraisal shall be final and binding on 
the parties.
    (m) Liability at end of lease term based on residual value. If the 
lessee is liable at the end of the lease term for the difference between 
the residual value of the leased property and its realized value:
    (1) Rent and other charges. The rent and other charges, paid by the 
lessee and required by the lessor as an incident to the lease 
transaction, with a description such as ``the total amount of rent and 
other charges imposed in connection with your lease [state the 
amount].''
    (2) Excess liability. A statement about a rebuttable presumption 
that, at the end of the lease term, the residual value of the leased 
property is unreasonable and not in good faith to the extent that the 
residual value exceeds the realized value by more than three times the 
base monthly payment (or more than three times the average payment 
allocable to a monthly period, if the lease calls for periodic payments 
other than monthly); and that the lessor cannot collect the excess 
amount unless the lessor brings a successful court action and pays the 
lessee's reasonable attorney's fees, or unless the excess of the 
residual value over the realized value is due to unreasonable or 
excessive wear or use of the leased property (in which case the 
rebuttable presumption does not apply).
    (3) Mutually agreeable final adjustment. A statement that the lessee 
and lessor are permitted, after termination of the lease, to make any 
mutually agreeable final adjustment regarding excess liability.
    (n) Fees and taxes. The total dollar amount for all official and 
license fees, registration, title, or taxes required to be paid in 
connection with the lease.
    (o) Insurance. A brief identification of insurance in connection 
with the lease including:
    (1) Through the lessor. If the insurance is provided by or paid 
through the lessor, the types and amounts of coverage and the cost to 
the lessee; or
    (2) Through a third party. If the lessee must obtain the insurance, 
the types and amounts of coverage required of the lessee.
    (p) Warranties or guarantees. A statement identifying all express 
warranties and guarantees from the manufacturer or lessor with respect 
to the leased property that apply to the lessee.
    (q) Penalties and other charges for delinquency. The amount or the 
method of determining the amount of any penalty or other charge for 
delinquency, default, or late payments, which must be reasonable.
    (r) Security interest. A description of any security interest, other 
than a security deposit disclosed under paragraph (b) of this section, 
held or to be retained by the lessor; and a clear identification of the 
property to which the security interest relates.
    (s) Limitations on rate information. If a lessor provides a 
percentage rate in an advertisement or in documents evidencing the lease 
transaction, a notice stating that ``this percentage may not measure the 
overall cost of financing this lease'' shall accompany the rate 
disclosure. The lessor shall not use the term ``annual percentage 
rate,'' ``annual lease rate,'' or any equivalent term.
    (t) Non-motor vehicle open-end leases. Non-motor vehicle open-end 
leases remain subject to section 182(10) of the act regarding end of 
term liability.
[Reg. M, 61 FR 52258, Oct. 7, 1996, as amended at 62 FR 15367, Apr. 1, 
1997]



Sec. 213.5  Renegotiations, extensions, and assumptions.

    (a) Renegotiation. A renegotiation occurs when a consumer lease 
subject to this part is satisfied and replaced by a new lease undertaken 
by the same consumer. A renegotiation requires new disclosures, except 
as provided in paragraph (d) of this section.
    (b) Extension. An extension is a continuation, agreed to by the 
lessor and the lessee, of an existing consumer lease beyond the 
originally scheduled end of the lease term, except when the

[[Page 363]]

continuation is the result of a renegotiation. An extension that exceeds 
six months requires new disclosures, except as provided in paragraph (d) 
of this section.
    (c) Assumption. New disclosures are not required when a consumer 
lease is assumed by another person, whether or not the lessor charges an 
assumption fee.
    (d) Exceptions. New disclosures are not required for the following, 
even if they meet the definition of a renegotiation or an extension:
    (1) A reduction in the rent charge;
    (2) The deferment of one or more payments, whether or not a fee is 
charged;
    (3) The extension of a lease for not more than six months on a 
month-to-month basis or otherwise;
    (4) A substitution of leased property with property that has a 
substantially equivalent or greater economic value, provided no other 
lease terms are changed;
    (5) The addition, deletion, or substitution of leased property in a 
multiple-item lease, provided the average periodic payment does not 
change by more than 25 percent; or
    (6) An agreement resulting from a court proceeding.
[Reg. M, 61 FR 52258, Oct. 7, 1996, as amended at 62 FR 15367, Apr. 1, 
1997]



Sec. 213.6  [Reserved]



Sec. 213.7  Advertising.

    (a) General rule. An advertisement for a consumer lease may state 
that a specific lease of property at specific amounts or terms is 
available only if the lessor usually and customarily leases or will 
lease the property at those amounts or terms.
    (b) Clear and conspicuous standard. Disclosures required by this 
section shall be made clearly and conspicuously.
    (1) Amount due at lease signing or delivery. Except for the 
statement of a periodic payment, any affirmative or negative reference 
to a charge that is a part of the disclosure required under paragraph 
(d)(2)(ii) of this section shall not be more prominent than that 
disclosure.
    (2) Advertisement of a lease rate. If a lessor provides a percentage 
rate in an advertisement, the rate shall not be more prominent than any 
of the disclosures in Sec. 213.4, with the exception of the notice in 
Sec. 213.4(s) required to accompany the rate; and the lessor shall not 
use the term ``annual percentage rate,'' ``annual lease rate,'' or 
equivalent term.
    (c) Catalogs and multipage advertisements. A catalog or other 
multipage advertisement that provides a table or schedule of the 
required disclosures shall be considered a single advertisement if, for 
lease terms that appear without all the required disclosures, the 
advertisement refers to the page or pages on which the table or schedule 
appears.
    (d) Advertisement of terms that require additional disclosure.--(1) 
Triggering terms. An advertisement that states any of the following 
items shall contain the disclosures required by paragraph (d)(2) of this 
section, except as provided in paragraphs (e) and (f) of this section:
    (i) The amount of any payment; or
    (ii) A statement of any capitalized cost reduction or other payment 
required prior to or at consummation, or that no payment is required.
    (2) Additional terms. An advertisement stating any item listed in 
paragraph (d)(1) of this section shall also state the following items:
    (i) That the transaction advertised is a lease;
    (ii) The total amount due prior to or at consummation or by 
delivery, if delivery occurs after consummation;
    (iii) The number, amounts, and due dates or periods of scheduled 
payments under the lease;
    (iv) A statement of whether or not a security deposit is required; 
and
    (v) A statement that an extra charge may be imposed at the end of 
the lease term where the lessee's liability (if any) is based on the 
difference between the residual value of the leased property and its 
realized value at the end of the lease term.
    (e) Alternative disclosures--merchandise tags. A merchandise tag 
stating any item listed in paragraph (d)(1) of this section may comply 
with paragraph (d)(2) of this section by referring to a sign or display 
prominently posted in

[[Page 364]]

the lessor's place of business that contains a table or schedule of the 
required disclosures.
    (f) Alternative disclosures--television or radio advertisements.--
(1) Toll-free number or print advertisement. An advertisement made 
through television or radio stating any item listed in paragraph (d)(1) 
of this section complies with paragraph (d)(2) of this section if the 
advertisement states the items listed in paragraphs (d)(2)(i) through 
(iii) of this section, and:
    (i) Lists a toll-free telephone number along with a reference that 
such number may be used by consumers to obtain the information required 
by paragraph (d)(2) of this section; or
    (ii) Directs the consumer to a written advertisement in a 
publication of general circulation in the community served by the media 
station, including the name and the date of the publication, with a 
statement that information required by paragraph (d)(2) of this section 
is included in the advertisement. The written advertisement shall be 
published beginning at least three days before and ending at least ten 
days after the broadcast.
    (2) Establishment of toll-free number. (i) The toll-free telephone 
number shall be available for no fewer than ten days, beginning on the 
date of the broadcast.
    (ii) The lessor shall provide the information required by paragraph 
(d)(2) of this section orally, or in writing upon request.
[Reg. M, 61 FR 52258, Oct. 7, 1996, as amended at 62 FR 15368, Apr. 1, 
1997]



Sec. 213.8  Record retention.

    A lessor shall retain evidence of compliance with the requirements 
imposed by this part, other than the advertising requirements under 
Sec. 213.7, for a period of not less than two years after the date the 
disclosures are required to be made or an action is required to be 
taken.



Sec. 213.9  Relation to state laws.

    (a) Inconsistent state law. A state law that is inconsistent with 
the requirements of the act and this part is preempted to the extent of 
the inconsistency. If a lessor cannot comply with a state law without 
violating a provision of this part, the state law is inconsistent within 
the meaning of section 186(a) of the act and is preempted, unless the 
state law gives greater protection and benefit to the consumer. A state, 
through an official having primary enforcement or interpretative 
responsibilities for the state consumer leasing law, may apply to the 
Board for a preemption determination.
    (b) Exemptions.--(1) Application. A state may apply to the Board for 
an exemption from the requirements of the act and this part for any 
class of lease transactions within the state. The Board will grant such 
an exemption if the Board determines that:
    (i) The class of leasing transactions is subject to state law 
requirements substantially similar to the act and this part or that 
lessees are afforded greater protection under state law; and
    (ii) There is adequate provision for state enforcement.
    (2) Enforcement and liability. After an exemption has been granted, 
the requirements of the applicable state law (except for additional 
requirements not imposed by federal law) will constitute the 
requirements of the act and this part. No exemption will extend to the 
civil liability provisions of sections 130, 131, and 185 of the act.

                   Appendix A to Part 213--Model Forms

A-1  Model Open-End or Finance Vehicle Lease Disclosures
A-2  Model Closed-End or Net Vehicle Lease Disclosures
A-3  Model Furniture Lease Disclosures

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[Reg. M, 62 FR 15369, Apr. 1, 1997]

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[Reg. M, 62 FR 15371, Apr. 1, 1997]

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          Appendix B to Part 213--Federal Enforcement Agencies

    The following list indicates which federal agency enforces 
Regulation M (12 CFR Part 213) for particular classes of business. 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).

1. 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.
2. 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.
3. Nonmember insured banks and insured state branches of foreign banks
    Federal Deposit Insurance Corporation Regional Director for the 
region in which the institution is located.
4. 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.
5. Federal credit unions
    Regional office of the National Credit Union Administration serving 
the area in which the federal credit union is located.
6. Air carriers
    Assistant General Counsel for Aviation Enforcement and Proceedings, 
Department of Transportation, 400 Seventh Street, S.W., Washington, DC 
20590
7. Those subject to Packers and Stockyards Act
    Nearest Packers and Stockyards Administration area supervisor.
8. Federal Land Banks, Federal Land Bank Associations, Federal 
          Intermediate Credit Banks, and Production Credit Associations
    Farm Credit Administration, 490 L'Enfant Plaza, S.W., Washington, DC 
20578
9. All other lessors (lessors 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

        Appendix C to Part 213--Issuance of Staff Interpretations

    Officials in the Board's Division of Consumer and Community Affairs 
are authorized to issue official staff interpretations of this 
Regulation M (12 CFR Part 213). These interpretations provide the formal 
protection afforded under section 130(f) of the act. Except in unusual 
circumstances, interpretations will not be issued separately but will be 
incorporated in an official commentary to Regulation M (Supplement I of 
this part), which will be amended periodically. No staff interpretations 
will be issued approving lessor's forms, statements, or calculation 
tools or methods.

   SUPPLEMENT I TO PART 213--OFFICIAL STAFF COMMENTARY TO REGULATION M

                             Introduction 09

    1. Official status. The commentary in Supplement I is the vehicle by 
which the Division of Consumer and Community Affairs of the Federal 
Reserve Board issues official staff interpretations of Regulation M (12 
CFR part 213). Good faith compliance with this commentary affords 
protection from liability under section 130(f) of the Truth in Lending 
Act (15 U.S.C. 1640(f)). Section 130(f) protects lessors 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.
    2. Procedures for requesting interpretations. Under appendix C of 
Regulation M, 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. Comment designations. Each comment in the commentary is 
identified by a number and the regulatory section or paragraph that 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. 213.4(f) are further divided by 
subparagraph, such as comment 4(f)(1)-1 and comment 4(f)(2)-1. In other 
cases, comments have more general application and are designated, for 
example, as comment 4(a)-1. This introduction may be cited as comments 
I-1 through I-4. An appendix may be cited as comment app. A-1.
    4. Illustrations. Lists that appear in the commentary may be 
exhaustive or illustrative; the appropriate construction should be clear 
from the context. Illustrative lists are introduced by phrases such as 
``including,'' ``such as,'' ``to illustrate,'' and ``for example.''

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        Section 213.1--Authority, Scope, Purpose, and Enforcement

    1. Foreign applicability. Regulation M applies to all persons 
(including branches of foreign banks or leasing companies located in the 
United States) that offer consumer leases to residents of any state 
(including foreign nationals) as defined in Sec. 213.2(p). The 
regulation does not apply to a foreign branch of a U.S. bank or to a 
leasing company leasing to a U.S. citizen residing or visiting abroad or 
to a foreign national abroad.

                       Section 213.2--Definitions

                           2(b)  Advertisement

    1. Coverage. The term advertisement includes messages inviting, 
offering, or otherwise generally announcing to prospective customers the 
availability of consumer leases, whether in visual, oral, print or 
electronic media. Examples include:
    i. Messages in newspapers, magazines, leaflets, catalogs, and 
fliers.
    ii. Messages on radio, television, and public address systems.
    iii. Direct mail literature.
    iv. Printed material on any interior or exterior sign or display, in 
any window display, in any point-of-transaction literature or price tag 
that is delivered or made available to a lessee or prospective lessee in 
any manner whatsoever.
    v. Telephone solicitations.
    vi. On-line messages, such as those on the Internet.
    2. Exclusions. The term does not apply to the following:
    i. Direct personal contacts, including follow-up letters, cost 
estimates for individual lessees, or oral or written communications 
relating to the negotiation of a specific transaction.
    ii. Informational material distributed only to businesses.
    iii. Notices required by federal or state law, if the law mandates 
that specific information be displayed and only the mandated information 
is included in the notice.
    iv. News articles controlled by the news medium.
    v. Market research or educational materials that do not solicit 
business.
    3. Persons covered. See the commentary to Sec. 213.7(a).

                         2(d)  Closed-End Lease

    1. General. In closed-end leases, sometimes referred to as ``walk-
away'' leases, the lessee is not responsible for the residual value of 
the leased property at the end of the lease term.

                          2(e)  Consumer lease

    1. Primary purposes. A lessor must determine in each case if the 
leased property will be used primarily for personal, family, or 
household purposes. If a question exists as to the primary purpose for a 
lease, the fact that a lessor gives disclosures is not controlling on 
the question of whether the transaction is covered. The primary purpose 
of a lease is determined before or at consummation and a lessor need not 
provide Regulation M disclosures where there is a subsequent change in 
the primary use.
    2. Period of time. To be a consumer lease, the initial term of the 
lease must be more than four months. Thus, a lease of personal property 
for four months, three months or on a month-to-month or week-to-week 
basis (even though the lease actually extends beyond four months) is not 
a consumer lease and is not subject to the disclosure requirements of 
the regulation. However, a lease that imposes a penalty for not 
continuing the lease beyond four months is considered to have a term of 
more than four months. To illustrate:
    i. A three-month lease extended on a month-to-month basis and 
terminated after one year is not subject to the regulation.
    ii. A month-to-month lease with a penalty, such as the forfeiture of 
a security deposit for terminating before one year, is subject to the 
regulation.
    3. Total contractual obligation. The total contractual obligation is 
not necessarily the same as the total of payments disclosed under 
Sec. 213.4(e). The total contractual obligation includes nonrefundable 
amounts a lessee is contractually obligated to pay to the lessor, but 
excludes items such as:
    i. Residual value amounts or purchase-option prices;
    ii. Amounts collected by the lessor but paid to a third party, such 
as taxes, licenses, and registration fees.
    4. Credit sale. The regulation does not cover a lease that meets the 
definition of a credit sale in Regulation Z, 12 CFR 226.2(a)(16), which 
is defined, in part, as 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.
    5. Agricultural purpose. Agricultural purpose means a purpose 
related to the production, harvest, exhibition, marketing, 
transportation, processing, or manufacture of agricultural products by a 
natural person who cultivates, plants, propagates, or nurtures those 
agricultural products, including but not limited to the acquisition of 
personal property and services used primarily in

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farming. Agricultural products include horticultural, viticultural, and 
dairy products, livestock, wildlife, poultry, bees, forest products, 
fish and shellfish, and any products thereof, including processed and 
manufactured products, and any and all products raised or produced on 
farms and any processed or manufactured products thereof.
    6. Organization or other entity. A consumer lease does not include a 
lease made to an organization such as a corporation or a government 
agency or instrumentality. Such a lease is not covered by the regulation 
even if the leased property is used (by an employee, for example) 
primarily for personal, family or household purposes, or is guaranteed 
by or subsequently assigned to a natural person.
    7. Leases of personal property incidental to a service. The 
following leases of personal property are deemed incidental to a service 
and thus are not subject to the regulation:
    i. Home entertainment systems requiring the consumer to lease 
equipment that enables a television to receive the transmitted 
programming.
    ii. Security alarm systems requiring the installation of leased 
equipment intended to monitor unlawful entries into a home and in some 
cases to provide fire protection.
    iii. Propane gas service where the consumer must lease a propane 
tank to receive the service.
    8. Safe deposit boxes. The lease of a safe deposit box is not a 
consumer lease under Sec. 213.2(e).

                              2(g)  Lessee

    1. Guarantors. Guarantors are not lessees for purposes of the 
regulation.

                              2(h)  Lessor

    1. Arranger of a lease. To ``arrange'' for the lease of personal 
property means to provide or offer to provide a lease that is or will be 
extended by another person under a business or other relationship 
pursuant to which the person arranging the lease (a) receives or will 
receive a fee, compensation, or other consideration for the service or 
(b) has knowledge of the lease terms and participates in the preparation 
of the contract documents required in connection with the lease. To 
illustrate:
    i. An automobile dealer who, pursuant to a business relationship, 
completes the necessary lease agreement before forwarding it for 
execution to the leasing company (to whom the obligation is payable on 
its face) is ``arranging'' for the lease.
    ii. An automobile dealer who, without receiving a fee for the 
service, refers a customer to a leasing company that will prepare all 
relevant contract documents is not ``arranging'' for the lease.
    2. Consideration. The term ``other consideration'' as used in 
comment 2(h)-1 refers to an actual payment corresponding to a fee or 
similar compensation and not to intangible benefits, such as the 
advantage of increased business, which may flow from the relationship 
between the parties.
    3. Assignees. An assignee may be a lessor for purposes of the 
regulation in circumstances where the assignee has substantial 
involvement in the lease transaction. See cf. Ford Motor Credit Co. v. 
Cenance, 452 U.S. 155 (1981) (held that an assignee was a creditor for 
purposes of the pre-1980 Truth in Lending Act and Regulation Z because 
of its substantial involvement in the credit transaction).
    4. Multiple lessors. See the commentary to Sec. 213.3(c).

                           2(j)  Organization

    1. Coverage. The term ``organization'' includes joint ventures and 
persons operating under a business name.

                         2(l)  Personal Property

    1. Coverage. Whether property is personal property depends on state 
or other applicable law. For example, a mobile home or houseboat may be 
considered personal property in one state but real property in another.

                          2(m)  Realized Value

    1. General. Realized value refers to either the retail or wholesale 
value of the leased property at early termination or at the end of the 
lease term. It is not a required disclosure. Realized value is relevant 
only to leases in which the lessee's liability at early termination or 
at the end of the lease term typically is based on the difference 
between the residual value (or the adjusted lease balance) of the leased 
property and its realized value.
    2. Options. Subject to the contract and to state or other applicable 
law, the lessor may calculate the realized value in determining the 
lessee's liability at the end of the lease term or at early termination 
in one of the three ways stated in Sec. 213.2(m). If the lessor sells 
the property prior to making the determination about liability, the 
price received for the property (or the fair market value) is the 
realized value. If the lessor does not sell the property prior to making 
that determination, the highest offer or the fair market value is the 
realized value.
    3. Determination of realized value. Disposition charges are not 
subtracted in determining the realized value but amounts attributable to 
taxes may be subtracted.
    4. Offers. In determining the highest offer for disposition, the 
lessor may disregard offers that an offeror has withdrawn or is unable 
or unwilling to perform.
    5. Lessor's appraisal. See commentary to Sec. 213.4(l).

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                  2(o)  Security Interest and Security

    1. Disclosable interests. For purposes of disclosure, a security 
interest is an interest taken by the lessor to secure performance of the 
lessee's obligation. For example, if a bank that is not a lessor makes a 
loan to a leasing company and takes assignments of consumer leases 
generated by that company to secure the loan, the bank's security 
interest in the lessor's receivables is not a security interest for 
purposes of this regulation.
    2. General coverage. An interest the lessor may have in leased 
property must be disclosed only if it is considered a security interest 
under state or other applicable law. The term includes, but is not 
limited to, security interests under the Uniform Commercial Code; real 
property mortgages, deeds of trust, and other consensual or confessed 
liens whether or not recorded; mechanic's, materialman's, artisan's, and 
other similar liens; vendor's liens in both real and personal property; 
liens on property arising by operation of law; and any interest in a 
lease when used to secure payment or performance of an obligation.
    3. Insurance exception. The lessor's right to insurance proceeds or 
unearned insurance premiums is not a security interest for purposes of 
this regulation.

             Section 213.3--General Disclosure Requirements

                       3(a)  General Requirements

    1. Basis of disclosures. Disclosures must reflect the terms of the 
legal obligation between the parties. For example:
    i. In a three-year lease with no penalty for termination after a 
one-year minimum term, disclosures are based on the full three-year term 
of the lease. The one-year minimum term is only relevant to the early 
termination provisions of Secs. 213.4 (g)(1), (k) and (l).
    2. Clear and conspicuous standard. The clear and conspicuous 
standard requires that disclosures be reasonably understandable. For 
example, the disclosures must be presented in a way that does not 
obscure the relationship of the terms to each other; appendix A of this 
part contains model forms that meet this standard. In addition, although 
no minimum typesize is required, the disclosures must be legible, 
whether typewritten, handwritten, or printed by computer.
    3. Multipurpose disclosure forms. A lessor may use a multipurpose 
disclosure form provided the lessor is able to designate the specific 
disclosures applicable to a given transaction, consistent with the 
requirement that disclosures be clearly and conspicuously provided.
    4. Number of transactions. Lessors have flexibility in handling 
lease transactions that may be viewed as multiple transactions. For 
example:
    i. When a lessor leases two items to the same lessee on the same 
day, the lessor may disclose the leases as either one or two lease 
transactions.
    ii. When a lessor sells insurance or other incidental services in 
connection with a lease, the lessor may disclose in one of two ways: as 
a single lease transaction (in which case Regulation M, not Regulation 
Z, disclosures are required) or as a lease transaction and a credit 
transaction.
    iii. When a lessor includes an outstanding lease or credit balance 
in a lease transaction, the lessor may disclose the outstanding balance 
as part of a single lease transaction (in which case Regulation M, not 
Regulation Z, disclosures are required) or as a lease transaction and a 
credit transaction.

                      3(a)(1)  Form of Disclosures

    1. Cross-references. Lessors may include in the nonsegregated 
disclosures a cross-reference to items in the segregated disclosures 
rather than repeat those items. A lessor may include in the segregated 
disclosures numeric or alphabetic designations as cross-references to 
related information so long as such references do not obscure or detract 
from the segregated disclosures.
    2. Identification of parties. While disclosures must be made clearly 
and conspicuously, lessors are not required to use the word ``lessor'' 
and ``lessee'' to identify the parties to the lease transaction.
    3. Lessor's address. The lessor must be identified by name; an 
address (and telephone number) may be provided.
    4. Multiple lessors and lessees. In transactions involving multiple 
lessors and multiple lessees, a single lessor may make all the 
disclosures to a single lessee as long as the disclosure statement 
identifies all the lessors and lessees.
    5. Lessee's signature. The regulation does not require that the 
lessee sign the disclosure statement, whether disclosures are separately 
provided or are part of the lease contract. Nevertheless, to provide 
evidence that disclosures are given before a lessee becomes obligated on 
the lease transaction, the lessor may, for example, ask the lessee to 
sign the disclosure statement or an acknowledgement of receipt, may 
place disclosures that are included in the lease documents above the 
lessee's signature, or include instructions alerting a lessee to read 
the disclosures prior to signing the lease.

               3(a)(2)  Segregation of Certain Disclosures

    1. Location. The segregated disclosures referred to in 
Sec. 213.3(a)(2) may be provided on a separate document and the other 
required disclosures may be provided in the lease contract, so long as 
all disclosures are given at the same time. Alternatively, all 
disclosures

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may be provided in a separate document or in the lease contract.
    2. Additional information among segregated disclosures. The 
disclosures required to be segregated may contain only the information 
required or permitted to be included among the segregated disclosures.
    3. Substantially similar. See commentary to appendix A of this part.

                     3(a)(3)  Timing of Disclosures

    1. Consummation. When a contractual relationship is created between 
the lessor and the lessee is a matter to be determined under state or 
other applicable law.

         3(b)  Additional Information; Nonsegregated Disclosures

    1. State law disclosures. A lessor may include in the nonsegregated 
disclosures any state law disclosures that are not inconsistent with the 
act and regulation under Sec. 213.9 as long as, in accordance with the 
standard set forth in Sec. 213.3(b) for additional information, the 
state law disclosures are not used or placed to mislead or confuse or 
detract from any disclosure required by the regulation.

                    3(c)  Multiple Lessors or Lessees

    1. Multiple lessors. If a single lessor provides disclosures to a 
lessee on behalf of several lessors, all disclosures for the transaction 
must be given, even if the lessor making the disclosures would not 
otherwise have been obligated to make a particular disclosure.

                         3(d)  Use of Estimates

                            3(d)(1)  Standard

    1. Time of estimated disclosure. The lessor may, after making a 
reasonable effort to obtain information, use estimates to make 
disclosures if necessary information is unknown or unavailable at the 
time the disclosures are made. For example:
    i. Section 213.4(n) requires the lessor to disclose the total amount 
payable by the lessee during the lease term for official and license 
fees, registration, certificate of title fees, or taxes. If these 
amounts are subject to increases or decreases over the course of the 
lease, the lessor may estimate the disclosures based on the rates or 
charges in effect at the time of the disclosure.
    2. Basis of estimates. Estimates must be made on the basis of the 
best information reasonably available at the time disclosures are made. 
The ``reasonably available'' standard requires that the lessor, acting 
in good faith, exercise due diligence in obtaining information. The 
lessor may rely on the representations of other parties. For example, 
the lessor might look to the consumer to determine the purpose for which 
leased property will be used, to insurance companies for the cost of 
insurance, or to an automobile manufacturer or dealer for the date of 
delivery.
    3. Residual value of leased property at termination. In an open-end 
lease where the lessee's liability at the end of the lease term is based 
on the residual value of the leased property as determined at 
consummation, the estimate of the residual value must be reasonable and 
based on the best information reasonably available to the lessor (see 
Sec. 213.4(m)). A lessor should generally use an accepted trade 
publication listing estimated current or future market prices for the 
leased property unless other information or a reasonable belief based on 
its experience provides the better information. For example:
    i. An automobile lessor offering a three-year open-end lease assigns 
a wholesale value to the vehicle at the end of the lease term. The 
lessor may disclose as an estimate a wholesale value derived from a 
generally accepted trade publication listing current wholesale values.
    ii. Same facts as above, except that the lessor discloses an 
estimated value derived by adjusting the residual value quoted in the 
trade publication because, in its experience, the trade publication 
values either understate or overstate the prices actually received in 
local used-vehicle markets. The lessor may adjust estimated values 
quoted in trade publications if the lessor reasonably believes based on 
its experience that the values are understated or overstated.
    4. Retail or wholesale value. The lessor may choose either a retail 
or a wholesale value in estimating the value of leased property at 
termination of an open-end lease provided the choice is consistent with 
the lessor's general practice when determining the value of the property 
at the end of the lease term. The lessor should indicate whether the 
value disclosed is a retail or wholesale value.
    5. Labelling estimates. Generally, only the disclosure for which the 
exact information is unknown is labelled as an estimate. Nevertheless, 
when several disclosures are affected because of the unknown 
information, the lessor has the option of labelling as an estimate every 
affected disclosure or only the disclosure primarily affected.

                  3(e)  Effect of Subsequent Occurrence

    1. Subsequent occurrences. Examples of subsequent occurrences 
include:
    i. An agreement between the lessee and lessor to change from a 
monthly to a weekly payment schedule.
    ii. An increase in official fees or taxes.
    iii. An increase in insurance premiums or coverage caused by a 
change in the law.
    iv. Late delivery of an automobile caused by a strike.

[[Page 376]]

    2. Redisclosure. When a disclosure becomes inaccurate because of a 
subsequent occurrence, the lessor need not make new disclosures unless 
new disclosures are required under Sec. 213.5.
    3. Lessee's failure to perform. The lessor does not violate the 
regulation if a previously given disclosure becomes inaccurate when a 
lessee fails to perform obligations under the contract and a lessor 
takes actions that are necessary and proper in such circumstances to 
protect its interest. For example, the addition of insurance or a 
security interest by the lessor because the lessee has not performed 
obligations contracted for in the lease is not a violation of the 
regulation.

                  Section 213.4--Content of Disclosures

                      4(a)  Description of Property

    1. Placement of description. Although the description of leased 
property may not be included among the segregated disclosures, a lessor 
may choose to place the description directly above the segregated 
disclosures.

              4(b)  Amount Due at Lease Signing or Delivery

    1. Consummation. See commentary to Sec. 213.3(a)(3).
    2. Capitalized cost reduction. A capitalized cost reduction is a 
payment in the nature of a downpayment on the leased property that 
reduces the amount to be capitalized over the term of the lease. This 
amount does not include any amounts included in a periodic payment paid 
at lease signing or delivery.
    3. ``Negative'' equity trade-in allowance. If an amount owed on a 
prior lease or credit balance exceeds the agreed upon value of a trade-
in, the difference is not reflected as a negative trade-in allowance 
under Sec. 213.4(b). The lessor may disclose the trade-in allowance as 
zero or not applicable, or may leave a blank line.
    4. Rebates. Only rebates applied toward an amount due at lease 
signing or delivery are required to be disclosed under Sec. 213.4(b).
    5. Balance sheet approach. In motor-vehicle leases, the total for 
the column labeled ``total amount due at lease signing or delivery'' 
must equal the total for the column labeled ``how the amount due at 
lease signing or delivery will be paid.''
    6. Amounts to be paid in cash. The term cash is intended to include 
payments by check or other payment methods in addition to currency; 
however, a lessor may add a line item under the column ``how the amount 
due at lease signing or delivery will be paid'' for non-currency 
payments such as credit cards.

      4(c)  Payment Schedule and Total Amount of Periodic Payments

    1. Periodic payments. The phrase ``number, amount, and due dates or 
periods of payments'' requires the disclosure of all payments that are 
made at regular intervals and generally derived from rent, capitalized 
or amortized amounts such as depreciation, and other amounts that are 
collected by the lessor at the same interval(s), including for example 
taxes, maintenance, and insurance charges. Other periodic payments may, 
but need not, be disclosed under Sec. 213.4(c).

                           4(d)  Other charges

    1. Coverage. Section 213.4(d) requires the disclosure of charges 
that are anticipated by the parties incident to the normal operation of 
the lease agreement. If a lessor is unsure whether a particular fee is 
an ``other charge,'' the lessor may disclose the fee as such without 
violating Sec. 213.4(d) or the segregation rule under Sec. 213.3(a)(2).
    2. Excluded charges. This section does not require disclosure of 
charges that are imposed when the lessee terminates early, fails to 
abide by, or modifies the terms of the existing lease agreement, such as 
charges for:
    i. Late payment.
    ii. Default.
    iii. Early termination.
    iv. Deferral of payments.
    v. Extension of the lease.
    3. Third-party fees and charges. Third-party fees or charges 
collected by the lessor on behalf of third parties, such as taxes, are 
not disclosed under Sec. 213.4(d).
    4. Relationship to other provisions. The other charges mentioned in 
this paragraph are charges that are not required to be disclosed under 
some other provision of Sec. 213.4. To illustrate:
    i. The price of a mechanical breakdown protection (MBP) contract is 
sometimes disclosed as an ``other charge.'' Nevertheless, the price of 
MBP is sometimes reflected in the periodic payment disclosure under 
Sec. 213.4(c) or in states where MBP is regarded as insurance, the cost 
is be disclosed in accordance with Sec. 213.4(o).
    5. Lessee's liabilities at the end of the lease term. Liabilities 
that the lessor imposes upon the lessee at the end of the scheduled 
lease term and that must be disclosed under Sec. 213.4(d) include 
disposition and ``pick-up'' charges.
    6. Optional ``disposition'' charges. Disposition and similar charges 
that are anticipated by the parties as an incident to the normal 
operation of the lease agreement must be disclosed under Sec. 213.4(d). 
If, under a lease agreement, a lessee may return leased property to 
various locations, and the lessor charges a disposition fee depending 
upon the location chosen, under Sec. 213.4(d), the lessor must disclose 
the highest amount charged. In such circumstances, the lessor may also 
include a brief explanation of the fee structure in the segregated 
disclosure. For example, if no fee or a lower fee is imposed for 
returning a leased vehicle to the originating dealer as opposed to 
another location, that

[[Page 377]]

fact may be disclosed. By contrast, if the terms of the lease treat the 
return of the leased property to a location outside the lessor's service 
area as a default, the fee imposed is not disclosed as an ``other 
charge,'' although it may be required to be disclosed under 
Sec. 213.4(q).

                         4(e)  Total of payments

    1. Open-end lease. The additional statement is required under 
Sec. 213.4(e) for open-end leases because, with some limitations, a 
lessee is liable at the end of the lease term for the difference between 
the residual and realized values of the leased property.

                        4(f)  Payment Calculation

    1. Motor-vehicle lease. Whether leased property is a motor vehicle 
is determined by state or other applicable law.

                     4(f)(1)  Gross Capitalized Cost

    1. Agreed upon value of the vehicle. The agreed upon value of a 
motor vehicle includes the amount of capitalized items such as charges 
for vehicle accessories and options, and delivery or destination 
charges. The lessor may also include taxes and fees for title, licenses, 
and registration that are capitalized. Charges for service or 
maintenance contracts, insurance products, guaranteed automobile 
protection, or an outstanding balance on a prior lease or credit 
transaction are not included in the agreed upon value.
    2. Itemization of the gross capitalized cost. The lessor may choose 
to provide the itemization of the gross capitalized cost only on request 
or may provide the itemization as a matter of course. In the latter 
case, the lessor need not provide a statement of the lessee's option to 
receive an itemization. The gross capitalized cost must be itemized by 
type and amount. The lessor may include in the itemization an 
identification of the items and amounts of some or all of the items 
contained in the agreed upon value of the vehicle. The itemization must 
be provided at the same time as the other disclosures required by 
Sec. 213.4, but it may not be included among the segregated disclosures.

                           4(f)(8)  Lease Term

    1. Definition. Under Sec. 213.4(f)(8) the ``lease term'' refers to 
the number of periodic payments.

                         4(g)  Early Termination

              4(g)(1)  Conditions and Disclosure of Charges

    1. Reasonableness of charges. See the commentary to Sec. 213.4(q).
    2. Description of the method. Section 213.4(g)(1) requires a full 
description of the method of determining an early termination charge. 
The lessor should attempt to provide consumers with clear and 
understandable descriptions of its early termination charges. 
Descriptions that are full, accurate, and not intended to be misleading 
will comply with Sec. 213.4(g)(1), even if the descriptions are complex. 
In providing a full description of an early termination method, a lessor 
may use the name of a generally accepted method of computing the 
unamortized cost portion (also known as the ``adjusted lease balance'') 
of its early termination charges. For example, a lessor may state that 
the ``constant yield'' method will be utilized in obtaining the adjusted 
lease balance, but must specify how that figure, and any other term or 
figure, is used in computing the total early termination charge imposed 
upon the consumer. Additionally, if a lessor refers to a named method in 
this manner, the lessor must provide a written explanation of that 
method if requested by the consumer. The lessor has the option of 
providing the explanation as a matter of course in the lease documents 
or on a separate document.
    3. Timing of written explanation of a named method. While a lessor 
may provide an address or telephone number for the consumer to request a 
written explanation of the named method used to calculate the adjusted 
leased balance, if at consummation a consumer requests such an 
explanation, the lessor must provide a written explanation at that time. 
If a consumer requests an explanation after consummation, the lessor 
must provide a written explanation within a reasonable time after the 
request is made.
    4. Default. When default is a condition for early termination of a 
lease, default charges must be disclosed under Sec. 213.4(g)(1). See the 
commentary to Sec. 213.4(q).
    5. Lessee's liability at early termination. When the lessee is 
liable for the difference between the unamortized cost and the realized 
value at early termination, the method of determining the amount of the 
difference must be disclosed under Sec. 213.4(g)(1).

                   4(h)  Maintenance Responsibilities

    1. Standards for wear and use. No disclosure is required if a lessor 
does not set standards or impose charges for wear and use (such as 
excess mileage).

                          4(i)  Purchase Option

    1. Mandatory disclosure of no purchase option. Generally the lessor 
need only make the specific required disclosures that apply to a 
transaction. In the case of a purchase option disclosure, however, a 
lessor must disclose affirmatively that the lessee has no option to 
purchase the leased property if the purchase option is inapplicable.
    2. Existence of purchase option. Whether a purchase option exists 
under the lease is determined by state or other applicable law.

[[Page 378]]

The lessee's right to submit a bid to purchase property at termination 
of the lease is not an option to purchase under Sec. 213.4(i) if the 
lessor is not required to accept the lessee's bid and the lessee does 
not receive preferential treatment.
    3. Purchase-option fee. A purchase-option fee is disclosed under 
Sec. 213.4(i), not Sec. 213.4(d). The fee may be separately itemized or 
disclosed as part of the purchase-option price.
    4. Official fees and taxes. Official fees such as those for taxes, 
licenses, and registration charged in connection with the exercise of a 
purchase option may be disclosed under Sec. 213.4(i) as part of the 
purchase-option price (with or without a reference to their inclusion in 
that price) or may be separately disclosed and itemized by category. 
Alternatively, a lessor may provide a statement indicating that the 
purchase-option price does not include fees for tags, taxes, and 
registration.
    5. Purchase-option price. Lessors must disclose the purchase-option 
price as a sum certain or as a sum certain to be determined at a future 
date by reference to a readily available independent source. The 
reference should provide sufficient information so that the lessee will 
be able to determine the actual price when the option becomes available. 
Statements of a purchase price as the ``negotiated price'' or the ``fair 
market value'' do not comply with the requirements of Sec. 213.4(i).

          4(j)  Statement referencing nonsegregated disclosures

    1. Content. A lessor may delete inapplicable items from the 
disclosure. For example, if a lease contract does not include a security 
interest, the reference to a security interest may be omitted.

                        4(l)  Right of appraisal

    1. Disclosure inapplicable. The lessee does not have the right to an 
independent appraisal merely because the lessee is liable at the end of 
the lease term or at early termination for unreasonable wear or use. 
Thus, the disclosure under Sec. 213.4(l) does not apply. For example:
    i. The automobile lessor might expect a lessee to return an undented 
car with four good tires at the end of the lease term. Even though it 
may hold the lessee liable for the difference between a dented car with 
bald tires and the value of a car in reasonably good repair, the 
disclosure under Sec. 213.4(l) is not required.
    2. Lessor's appraisal. If the lessor obtains an appraisal of the 
leased property to determine its realized value, that appraisal does not 
suffice for purposes of section 183(c) of the act; the lessor must 
disclose the lessee's right to an independent appraisal under 
Sec. 213.4(l).
    3. Retail or wholesale. In providing the disclosures in 
Sec. 213.4(l), a lessor must indicate whether the wholesale or retail 
appraisal value will be used.
    4. Time restriction on appraisal. The regulation does not specify a 
time period in which the lessee must exercise the appraisal right. The 
lessor may require a lessee to obtain the appraisal within a reasonable 
time after termination of the lease.

      4(m)  Liability at end of Lease Term Based on Residual Value

    1. Open-end leases. Section 213.4(m) applies only to open-end 
leases.
    2. Lessor's payment of attorney's fees. Section 183(a) of the act 
requires that the lessor pay the lessee's attorney's fees in all actions 
under Sec. 213.4(m), whether successful or not.

                     4(m)(1)  Rent and other charges

    1. General. This disclosure is intended to represent the cost of 
financing an open-end lease based on charges and fees that the lessor 
requires the lessee to pay. Examples of disclosable charges, in addition 
to the rent charge, include acquisition, disposition, or assignment 
fees. Charges imposed by a third party whose services are not required 
by the lessor (such as official fees and voluntary insurance) are not 
included in the Sec. 213.4(m)(1) disclosure.

                        4(m)(2)  Excess liability

    1. Coverage. The disclosure limiting the lessee's liability for the 
value of the leased property does not apply in the case of early 
termination.
    2. Leases with a minimum term. If a lease has an alternative minimum 
term, the disclosures governing the liability limitation are not 
applicable for the minimum term.
    3. Charges not subject to rebuttable presumption. The limitation on 
liability applies only to liability at the end of the lease term that is 
based on the difference between the residual value of the leased 
property and its realized value. The regulation does not preclude a 
lessor from recovering other charges from the lessee at the end of the 
lease term. Examples of such charges include:
    i. Disposition charges.
    ii. Excess mileage charges.
    iii. Late payment and default charges.
    iv. In simple-interest accounting leases, amount by which the 
unamortized cost exceeds the residual value because the lessee has not 
made timely payments.

                          4(n)  Fees and taxes

    1. Treatment of certain taxes. Taxes paid in connection with the 
lease are generally disclosed under Sec. 213.4(n), but there are 
exceptions. To illustrate:
    i. Taxes paid by lease signing or delivery are disclosed under 
Sec. 213.4(b) and Sec. 213.4(n).

[[Page 379]]

    ii. Taxes that are part of a regularly scheduled payments are 
reflected in the disclosure under Sec. 213.4(c) and itemized under 
Sec. 213.4(f)(10).
    iii. A tax payable by the lessor that is passed on to the consumer 
and is reflected in the lease documentation must be disclosed under 
Sec. 213.4(n). A tax payable by the lessor and absorbed as a cost of 
doing business need not be disclosed.
    iv. Taxes charged in connection with the exercise of a purchase 
option are disclosed under Sec. 213.4(i), not Sec. 213.4(n).

                             4(o)  Insurance

    1. Coverage. If insurance is obtained through the lessor, 
information on the type and amount of insurance coverage (whether 
voluntary or required) as well as the cost, must be disclosed.
    2. Lessor's insurance. Insurance purchased by the lessor primarily 
for its own benefit, and absorbed as a business expense and not 
separately charged to the lessee, need not be disclosed under 
Sec. 213.4(o) even if it provides an incidental benefit to the lessee.
    3. Mechanical breakdown protection and other products. Whether 
products purchased in conjunction with a lease, such as mechanical 
breakdown protection (MBP) or guaranteed automobile protection (GAP), 
should be treated as insurance is determined by state or other 
applicable law. In states that do not treat MBP or GAP as insurance, 
Sec. 213.4(o) disclosures are not required. In such cases the lessor 
may, however, disclose this information in accordance with the 
additional information provision in Sec. 213.3(b). For MBP insurance 
contracts not capped by a dollar amount, lessors may describe coverage 
by referring to a limitation by mileage or time period, for example, by 
indicating that the mechanical breakdown contract insures parts of the 
automobile for up to 100,000 miles.

                     4(p)  Warranties or Guarantees

    1. Brief identification. The statement identifying warranties may be 
brief and need not describe or list all warranties applicable to 
specific parts such as for air conditioning, radio, or tires in an 
automobile. For example, manufacturer's warranties may be identified 
simply by a reference to the standard manufacturer's warranty. If a 
lessor provides a comprehensive list of warranties that may not all 
apply, to comply with Sec. 213.4(p) the lessor must indicate which 
warranties apply or, alternatively, which warranties do not apply.
    2. Warranty disclaimers. Although a disclaimer of warranties is not 
required by the regulation, the lessor may give a disclaimer as 
additional information in accordance with Sec. 213.3(b).
    3. State law. Whether an express warranty or guaranty exists is 
determined by state or other law.

            4(q)  Penalties and Other Charges for Delinquency

    1. Collection costs. The automatic imposition of collection costs or 
attorney fees upon default must be disclosed under Sec. 213.4(q). 
Collection costs or attorney fees that are not imposed automatically, 
but are contingent upon expenditures in conjunction with a collection 
proceeding or upon the employment of an attorney to effect collection, 
need not be disclosed.
    2. Charges for early termination. When default is a condition for 
early termination of a lease, default charges must also be disclosed 
under Sec. 213.4(g)(1). The Sec. 213.4(q) and (g)(1) disclosures may, 
but need not, be combined. Examples of combined disclosures are provided 
in the model lease disclosure forms in appendix A.
    3. Simple-interest leases. In a simple-interest accounting lease, 
the additional rent charge that accrues on the lease balance when a 
periodic payment is made after the due date does not constitute a 
penalty or other charge for late payment. Similarly, continued accrual 
of the rent charge after termination of the lease because the lessee 
fails to return the leased property does not constitute a default 
charge. But in either case, if the additional charge accrues at a rate 
higher than the normal rent charge, the lessor must disclose the amount 
of or the method of determining the additional charge under 
Sec. 213.4(q).
    4. Extension charges. Extension charges that exceed the rent charge 
in a simple-interest accounting lease or that are added separately are 
disclosed under Sec. 213.4(q).
    5. Reasonableness of charges. Pursuant to section 183(b) of the act, 
penalties or other charges for delinquency, default, or early 
termination may be specified in the lease but only in an amount that is 
reasonable in light of the anticipated or actual harm caused by the 
delinquency, default, or early termination, the difficulties of proof of 
loss, and the inconvenience or nonfeasibility of otherwise obtaining an 
adequate remedy.

                         4(r)  Security Interest

    1. Disclosable security interests. See Sec. 213.2(o) and 
accompanying commentary to determine what security interests must be 
disclosed.

                  4(s)  Limitations on Rate Information

    1. Segregated disclosures. A lease rate may not be included among 
the segregated disclosures referenced in Sec. 213.3(a)(2).

[[Page 380]]

        Section 213.5--Renegotiations, Extensions and Assumptions

    1. Coverage. Section 213.5 applies only to existing leases that are 
covered by the regulation. It does not apply to the renegotiation or 
extension of leases with an initial term of four months or less, because 
such leases are not covered by the definition of consumer lease in.
    Sec. 213.2(e). Whether and when a lease is satisfied and replaced by 
a new lease is determined by state or other applicable law.

                            5(b)  Extensions

    1. Time of extension disclosures. If a consumer lease is extended 
for a specified term greater than six months, new disclosures are 
required at the time the extension is agreed upon. If the lease is 
extended on a month-to-month basis and the cumulative extensions exceed 
six months, new disclosures are required at the commencement of the 
seventh month and at the commencement of each seventh month thereafter 
for as long as the extensions continue. If a consumer lease is extended 
for terms of varying durations, one of which will exceed six months 
beyond the originally scheduled termination date of the lease, new 
disclosures are required at the commencement of the term that will 
exceed six months beyond the originally scheduled termination date.
    2. Content of disclosures for month-to-month extensions. The 
disclosures for a lease extended on a month-to-month basis for more than 
six months should reflect the month-to-month nature of the transaction.

                       Section 213.7--Advertising

                           7(a)  General Rule

    1. Persons covered. All ``persons'' must comply with the advertising 
provisions in this section, not just those that meet the definition of a 
lessor in Sec. 213.2(h). Thus, automobile dealers, merchants, and others 
who are not themselves lessors must comply with the advertising 
provisions of the regulation if they advertise consumer lease 
transactions. Pursuant to section 184(b) of the act, however, owners and 
personnel of the media in which an advertisement appears or through 
which it is disseminated are not subject to civil liability for 
violations under section 185(b) of the act.
    2. ``Usually and customarily.'' Section 213.7(a) does not prohibit 
the advertising of a single item or the promotion of a new leasing 
program, but prohibits the advertising of terms that are not and will 
not be available. Thus, an advertisement may state terms that will be 
offered for only a limited period or terms that will become available at 
a future date.

                  7(b)  Clear and Conspicuous Standard

    1. Standard. The disclosures in an advertisement in any media must 
be reasonably understandable. For example, very fine print in a 
television advertisement or detailed and very rapidly stated information 
in a radio advertisement does not meet the clear and conspicuous 
standard if consumers cannot see and read or hear, and cannot 
comprehend, the information required to be disclosed.

            7(b)(1)  Amount due at Lease Signing or Delivery

    1. Itemization not required. Only a total of amounts due at lease 
signing or delivery is required to be disclosed, not an itemization of 
its component parts. Such an itemization is provided in any transaction-
specific disclosures provided under Sec. 213.4.
    2. Prominence rule. Except for a periodic payment, oral or written 
references to components of the total due at lease signing or delivery 
(for example, a reference to a capitalized cost reduction, where 
permitted) may not be more prominent than the disclosure of the total 
amount due at lease signing or delivery.

                 7(b)(2)  Advertisement of a Lease Rate

    1. Location of statement. The notice required to accompany a 
percentage rate stated in an advertisement must be placed in close 
proximity to the rate without any other intervening language or symbols. 
For example, a lessor may not place an asterisk next to the rate and 
place the notice elsewhere in the advertisement. In addition, with the 
exception of the notice required by Sec. 213.4(s), the rate cannot be 
more prominent than any Sec. 213.4 disclosure stated in the 
advertisement.

              7(c)  Catalogs and Multi-Page Advertisements

    1. General rule. The multiple-page advertisements referred to in 
Sec. 213.7(c) are advertisements consisting of a series of numbered 
pages--for example, a supplement to a newspaper. A mailing comprising 
several separate flyers or pieces of promotional material in a single 
envelope is not a single multiple-page advertisement.
    12. Cross-references. A multiple-page advertisement is a single 
advertisement (requiring only one set of lease disclosures) if it 
contains a table, chart, or schedule with the disclosures required under 
Sec. 213.7(d)(2) (i) through (v). If one of the triggering terms listed 
in Sec. 213.7(d)(1) appears in a catalog or other multiple-page 
advertisement, the page on which the triggering term is used must 
clearly refer to the specific page where the table, chart, or schedule 
begins.

[[Page 381]]

                        7(d)(1)  Triggering Terms

    1. Typical example. When any triggering term appears in a lease 
advertisement, the additional terms enumerated in Sec. 213.7(d)(2) (i) 
through (v) must also appear. In a multi-lease advertisement, an example 
of one or more typical leases with a statement of all the terms 
applicable to each may be used. The examples must be labeled as such and 
must reflect representative lease terms that are made available by the 
lessor to consumers.

                        7(d)(2)  Additional Terms

    1. Third-party fees that vary by state or locality. The disclosure 
of the total amount due at lease signing or delivery may:
    i. Exclude third-party fees, such as taxes, licenses, and 
registration fees and disclose that fact; or
    ii. Provide a total that includes third-party fees based on a 
particular state or locality as long as that fact and the fact that fees 
may vary by state or locality are disclosed.

             7(e)  Alternative Disclosures--Merchandise Tags

    1. Multiple-item leases. Multiple-item leases that utilize 
merchandise tags requiring additional disclosures may use the alternate 
disclosure rule.

    7(f)  Alternative Disclosures--Television or Radio Advertisements

            7(f)(1)  Toll-Free Number or Print Advertisement

    1. Publication in general circulation. A reference to a written 
advertisement appearing in a newspaper circulated nationally, for 
example, USA Today or the Wall Street Journal, may satisfy the general 
circulation requirement in Sec. 213.7(f)(1)(ii).
    2. Toll-free number, local or collect calls. In complying with the 
disclosure requirements of Sec. 213.7(f)(1)(i), a lessor must provide a 
toll-free number for nonlocal calls made from an area code other than 
the one used in the lessor's dialing area. Alternatively, a lessor may 
provide any telephone number that allows a consumer to reverse the phone 
charges when calling for information.
    3. Multi-purpose number. When an advertised toll-free number 
responds with a recording, lease disclosures must be provided early in 
the sequence to ensure that the consumer receives the required 
disclosures. For example, in providing several dialing options--such as 
providing directions to the lessor's place of business--the option 
allowing the consumer to request lease disclosures should be provided 
early in the telephone message to ensure that the option to request 
disclosures is not obscured by other information.
    4. Statement accompanying toll free number. Language must accompany 
a telephone and television number indicating that disclosures are 
available by calling the toll-free number, such as ``call 1-800-000-0000 
for details about costs and terms.''

                     Section 213.8--Record Retention

    1. Manner of retaining evidence. A lessor must retain evidence of 
having performed required actions and of having made required 
disclosures. Such records may be retained in paper form, on microfilm, 
microfiche, or computer, or by any other method designed to reproduce 
records accurately. The lessor need retain only enough information to 
reconstruct the required disclosures or other records.

                  Section 213.9--Relation to State Laws

    1. Exemptions granted. Effective October 1, 1982, the Board granted 
the following exemptions from portions of the Consumer Leasing Act:
    i. Maine. 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 lessor.)
    ii. Oklahoma. 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 lessor.)

                         Appendix A--Model Forms

    1. Permissible changes. Although use of the model forms is not 
required, lessors using them properly will be deemed to be in compliance 
with the regulation. Generally, lessors may make certain changes in the 
format or content of the forms and may delete any disclosures that are 
inapplicable to a transaction without losing the act's protection from 
liability. For example, the model form based on monthly periodic 
payments may be modified for single-payment lease transactions or for 
quarterly or other periodic payments. The content, format, and headings 
for the segregated disclosures must be substantially similar to those 
contained in the model forms; therefore, any changes should be minimal. 
The changes to the model forms should not be so extensive as to affect 
the substance and the clarity of the disclosures.
    2. Examples of acceptable changes.
    i. Using the first person, instead of the second person, in 
referring to the lessee.
    ii. Using ``lessee,'' ``lessor,'' or names instead of pronouns.
    iii. Rearranging the sequence of the nonsegregated disclosures.

[[Page 382]]

    iv. Incorporating certain state ``plain English'' requirements.
    v. Deleting inapplicable disclosures by 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 facilitate use of multi-purpose standard forms.)
    vi. Adding language or symbols to indicate estimates.
    vii. Adding numeric or alphabetic designations.
    viii. Rearranging the disclosures into vertical columns, except for 
Sec. 213.4 (b) through (e) disclosures.
    ix. Using icons and other graphics.
    3. Model closed-end or net vehicle lease disclosure. Model A-2 is 
designed for a closed-end or net vehicle lease. Under the ``Early 
Termination and Default'' provision a reference to the lessee's right to 
an independent appraisal of the leased vehicle under Sec. 213.4(l) is 
included for those closed-end leases in which the lessee's liability at 
early termination is based on the vehicle's realized value.
    4. Model furniture lease disclosures. Model A-3 is a closed-end 
lease disclosure statement designed for a typical furniture lease. It 
does not include a disclosure of the appraisal right at early 
termination required under Sec. 213.4(l) because few closed-end 
furniture leases base the lessee's liability at early termination on the 
realized value of the leased property. The disclosure should be added if 
it is applicable.
[Reg. M, 62 FR 16058, Apr. 4, 1997]



PART 214--RELATIONS WITH FOREIGN BANKS AND BANKERS (REGULATION N)--Table of Contents




                               Regulations

Sec.
214.1  Scope of part.
214.2  Information to be furnished to the Board.
214.3  Conferences and negotiations with foreign banks, bankers, or 
          States.
214.4  Agreements with foreign banks, bankers, or States, and 
          participation in foreign accounts.
214.5  Accounts with foreign banks.
214.6  Amendments.

    Authority:  12 U.S.C. 248, 348a, 358, 632.

    Source:  Reg. N, 8 FR 17290, Dec. 24, 1943, unless otherwise noted.

                               Regulations



Sec. 214.1  Scope of part.

    Pursuant to the authority conferred upon it by section 14 of the 
Federal Reserve Act, as amended (40 Stat. 235, 48 Stat. 181; 12 U.S.C. 
358, 348a), and by other provisions of law, the Board of Governors of 
the Federal Reserve System prescribes the following regulations 
governing relationships and transactions between Federal Reserve Banks 
and foreign banks or bankers or groups of foreign banks, or bankers, or 
a foreign State as defined in section 25(b) of the Federal Reserve Act 
(55 Stat. 131; 12 U.S.C. 632).



Sec. 214.2  Information to be furnished to the Board.

    In order that the Board of Governors of the Federal Reserve System 
may perform its statutory duty of exercising special supervision over 
all relationships and transactions of any kind entered into by any 
Federal Reserve Bank with any foreign bank or banker or with any group 
of foreign banks or bankers or with any foreign State, each Federal 
Reserve Bank shall promptly submit to the Board of Governors of the 
Federal Reserve System in writing full information concerning all 
existing relationships and transactions of any kind heretofore entered 
into by such Federal Reserve Bank with any foreign bank or banker or 
with any group of foreign banks or bankers or with any foreign State and 
copies of all written agreements between it and any foreign bank or 
banker or any group of foreign banks or bankers or any foreign State 
which are now in force, unless copies have heretofore been furnished to 
the Board. Each Federal Reserve Bank shall also keep the Board of 
Governors of the Federal Reserve System promptly and fully advised of 
all transactions with any foreign bank or banker or with any group of 
foreign banks or bankers or with any foreign State, except transactions 
of a routine character.



Sec. 214.3  Conferences and negotiations with foreign banks, bankers, or States.

    (a) Without first obtaining the permission of the Board of Governors 
of the Federal Reserve System, no officer or other representative of any 
Federal Reserve Bank shall conduct negotiations of any kind with the 
officers or representatives of any foreign bank or banker or any group 
of foreign banks

[[Page 383]]

or bankers of any foreign State, except communications in the ordinary 
course of business in connection with transactions pursuant to 
agreements previously approved by the Board of Governors of the Federal 
Reserve System. Any request for the Board's permission to conduct any 
such negotiations shall be submitted in writting and shall include a 
full statement of the occasion and objects of the proposed negotiations.
    (b) The Board of Governors of the Federal Reserve System reserves 
the right, in its discretion, to be represented by such representatives 
as it may designate in any negotiations between any officer or other 
representative of any Federal Reserve Bank and any officers or 
representatives of any foreign bank or banker or any group of foreign 
banks or bankers or any foreign State; and the Board shall be given 
reasonable notice in advance of the time and place of any such 
negotiations; and may itself designate the time and place of any such 
negotiations.
    (c) A full report of all such conferences or negotiations and all 
understandings or agreements arrived at or transactions agreed upon and 
all other material facts appertaining to such conferences or 
negotiations shall be filed with the Board of Governors of the Federal 
Reserve System in writing by a duly authorized officer of each Federal 
Reserve Bank which shall have participated in such conferences or 
negotiations, including copies of all correspondence appertaining 
thereto.



Sec. 214.4  Agreements with foreign banks, bankers, or States, and participation in foreign accounts.

    (a) No Federal Reserve Bank shall enter into any agreement, 
contract, or understanding with any foreign bank or banker or with any 
group of foreign banks or bankers or with any foreign State without 
first obtaining the permission of the Board of Governors of the Federal 
Reserve System.
    (b) When any Federal Reserve Bank, with the approval of the Board of 
Governors of the Federal Reserve System, has opened an account for any 
foreign bank or banker or group of foreign banks or bankers or for any 
foreign State, or has entered into any agreement, contract, or 
understanding with reference to opening or maintaining such an account, 
or with reference to any other matter or matters, any other Federal 
Reserve Bank may participate in such account, or in such agreement, 
contract, or understanding, and in operations and transactions performed 
therein or pursuant thereto, with the approval of the Board of Governors 
of the Federal Reserve System.



Sec. 214.5  Accounts with foreign banks.

    (a) Any Federal Reserve Bank, with the consent of the Board, may 
open and maintain accounts payable in foreign currencies with such 
foreign banks as may be designated by the Board.
    (b) Notwithstanding other provisions of this part, any officer or 
other representatives of the Federal Reserve Bank which maintains an 
account with a foreign bank may conduct such negotiations and enter into 
such agreements, contracts, or understandings with such foreign bank as 
may be authorized or directed by the Federal Open Market Committee in 
order to effectuate the conduct of open market transactions of the 
Federal Reserve Banks incident to the opening, maintenance, operation, 
increase, reduction, or discontinuance of such account; and, in any such 
case, such negotiations, agreements, contracts, or understandings shall 
be subject to such authorizations, directions, regulations, and 
limitations as may be prescribed by, or pursuant to authority of, the 
Federal Open Market Committee.
    (c) Any Federal Reserve Bank may, when authorized or directed so to 
do by, or under the authority of, the Federal Open Market Committee, 
carry on or conduct, through any other Federal Reserve Bank which 
maintains an account with a foreign bank, any open market transactions 
authorized by section 14 of the Federal Reserve Act. Transactions 
authorized by section 14 which are not open market transactions may be 
carried on or conducted through such other Federal Reserve Bank only 
with the approval of the Board.
    (d) Notwithstanding other provisions of this part, reports with 
respect to any accounts opened and maintained, and negotiations, 
agreements, contracts,

[[Page 384]]

and understandings entered into, pursuant to this section shall be made 
to the Board at least quarterly, and more frequently if so requested by 
the Board, by a duly authorized officer of the Federal Reserve Bank 
involved.
[Reg. N, 27 FR 1719, Feb. 22, 1962]



Sec. 214.6  Amendments.

    The Board of Governors of the Federal Reserve System reserves the 
right, in its discretion, to alter, amend or repeal these regulations 
and to prescribe such additional regulations, conditions, and 
limitations as it may deem desirable, respecting relationships and 
transactions of any kind entered into by any Federal Reserve Bank with 
any foreign bank or banker or with any group of foreign banks or bankers 
or with any foreign State.
[Reg. N, 8 FR 17290, Dec. 24, 1943. Redesignated at 27 FR 1719, Feb. 22, 
1962]



PART 215--LOANS TO EXECUTIVE OFFICERS, DIRECTORS, AND PRINCIPAL SHAREHOLDERS OF MEMBER BANKS (REGULATION O)--Table of Contents




Subpart A--Loans by Member Banks to Their Executive Officers, Directors, 
                       and Principal Shareholders

Sec.
215.1  Authority, purpose, and scope.
215.2  Definitions.
215.3  Extension of credit.
215.4  General prohibitions.
215.5  Additional restrictions on loans to executive officers of member 
          banks.
215.6  Prohibition on knowingly receiving unauthorized extension of 
          credit.
215.7  Extensions of credit outstanding on March 10, 1979.
215.8  Records of member banks.
215.9  Reports by executive officers.
215.10  Report on credit to executive officers.
215.11  Disclosure of credit from member banks to executive officers and 
          principal shareholders.
215.12  Reporting requirement for credit secured by certain bank stock.
215.13  Civil penalties.


Appendix--Section 5200 of the Revised Statutes Total Loans and 
          Extensions of Credit

 Subpart B--Reports on Indebtedness of Executive Officers and Principal 
                   Shareholders to Correspondent Banks

215.20  Authority, purpose, and scope.
215.21  Definitions.
215.22  Report by executive officers and principal shareholders.
215.23  Disclosure of credit from correspondent banks to executive 
          officers and principal shareholders.

    Authority:  12 U.S.C. 248(i), 375a(10), 375b(9) and (10), 1817(k)(3) 
and 1972(2)(G)(ii); Pub. L. 102-242, 105 Stat. 2236.

    Source:  44 FR 12964, Mar. 9, 1979, unless otherwise noted.



Subpart A--Loans by Member Banks to Their Executive Officers, Directors, 
                       and Principal Shareholders

    Source:  Reg. O, 59 FR 8837, Feb. 24, 1994, unless otherwise noted.



Sec. 215.1  Authority, purpose, and scope.

    (a) Authority. This subpart is issued pursuant to sections 11(i), 
22(g), and 22(h) of the Federal Reserve Act (12 U.S.C. 248(i), 375a, and 
375b), 12 U.S.C. 1817(k), and section 306 of the Federal Deposit 
Insurance Corporation Improvement Act of 1991 (Pub. L. 102-242, 105 
Stat. 2236 (1991)).
    (b) Purpose and scope. This subpart A governs any extension of 
credit by a member bank to an executive officer, director, or principal 
shareholder of: The member bank; a bank holding company of which the 
member bank is a subsidiary; and any other subsidiary of that bank 
holding company. It also applies to any extension of credit by a member 
bank to: A company controlled by such a person; and a political or 
campaign committee that benefits or is controlled by such a person. This 
subpart A also implements the reporting requirements of 12 U.S.C. 375a 
concerning extensions of credit by a member bank to its executive 
officers and of 12 U.S.C. 1817(k) concerning extensions of credit by a 
member bank to its executive officers or principal shareholders, or the 
related interests of such persons.

[[Page 385]]



Sec. 215.2  Definitions.

    For the purposes of this subpart A, the following definitions apply 
unless otherwise specified:
    (a) Affiliate means any company of which a member bank is a 
subsidiary or any other subsidiary of that company.
    (b) Company means any corporation, partnership, trust (business or 
otherwise), association, joint venture, pool syndicate, sole 
proprietorship, unincorporated organization, or any other form of 
business entity not specifically listed herein. However, the term does 
not include:
    (1) An insured depository institution (as defined in 12 U.S.C. 
1813); or
    (2) A corporation the majority of the shares of which are owned by 
the United States or by any State.
    (c)(1) Control of a company or bank means that a person directly or 
indirectly, or acting through or in concert with one or more persons:
    (i) Owns, controls, or has the power to vote 25 percent or more of 
any class of voting securities of the company or bank;
    (ii) Controls in any manner the election of a majority of the 
directors of the company or bank; or
    (iii) Has the power to exercise a controlling influence over the 
management or policies of the company or bank.
    (2) A person is presumed to have control, including the power to 
exercise a controlling influence over the management or policies, of a 
company or bank if:
    (i) The person is:
    (A) An executive officer or director of the company or bank; and
    (B) Directly or indirectly owns, controls, or has the power to vote 
more than 10 percent of any class of voting securities of the company or 
bank; or
    (ii)(A) The person directly or indirectly owns, controls, or has the 
power to vote more than 10 percent of any class of voting securities of 
the company or bank; and
    (B) No other person owns, controls, or has the power to vote a 
greater percentage of that class of voting securities.
    (3) An individual is not considered to have control, including the 
power to exercise a controlling influence over the management or 
policies, of a company or bank solely by virtue of the individual's 
position as an officer or director of the company or bank.
    (4) A person may rebut a presumption established by paragraph (c)(2) 
of this section by submitting to the appropriate Federal banking agency 
(as defined in 12 U.S.C. 1813(q)) written materials that, in the 
agency's judgment, demonstrate an absence of control.
    (d)(1) Director of a company or bank means any director of the 
company or bank, whether or not receiving compensation. An advisory 
director is not considered a director if the advisory director:
    (i) Is not elected by the shareholders of the company or bank;
    (ii) Is not authorized to vote on matters before the board of 
directors; and
    (iii) Provides solely general policy advice to the board of 
directors.
    (2) Extensions of credit to a director of an affiliate of a bank are 
not subject to Secs. 215.4, 215.6, and 215.8 if--
    (i) The director of the affiliate is excluded, by resolution of the 
board of directors or by the bylaws of the bank, from participation in 
major policymaking functions of the bank, and the director does not 
actually participate in such functions;
    (ii) The affiliate does not control the bank;
    (iii) As determined annually, the assets of the affiliate do not 
constitute more than 10 percent of the consolidated assets of the 
company that--
    (A) Controls the bank; and
    (B) Is not controlled by any other company; and
    (iv) The director of the affiliate is not otherwise subject to 
Secs. 215.4, 215.6, and 215.8.
    (3) For purposes of paragraph (d)(2)(i) of this section, a 
resolution of the board of directors or a corporate bylaw may--
    (i) Include the director (by name or by title) in a list of persons 
excluded from participation in such functions; or
    (ii) Not include the director in a list of persons authorized (by 
name or by title) to participate in such functions.
    (e)(1) Executive officer of a company or bank means a person who 
participates

[[Page 386]]

or has authority to participate (other than in the capacity of a 
director) in major policymaking functions of the company or bank, 
whether or not: the officer has an official title; the title designates 
the officer an assistant; or the officer is serving without salary or 
other compensation.1 The chairman of the board, the 
president, every vice president, the cashier, the secretary, and the 
treasurer of a company or bank are considered executive officers, unless 
the officer is excluded, by resolution of the board of directors or by 
the bylaws of the bank or company, from participation (other than in the 
capacity of a director) in major policymaking functions of the bank or 
company, and the officer does not actually participate therein.
---------------------------------------------------------------------------


    \1\ The term is not intended to include persons who may have 
official titles and may exercise a certain measure of discretion in the 
performance of their duties, including discretion in the making of 
loans, but who do not participate in the determination of major policies 
of the bank or company and whose decisions are limited by policy 
standards fixed by the senior management of the bank or company. For 
example, the term does not include a manager or assistant manager of a 
branch of a bank unless that individual participates, or is authorized 
to participate, in major policymaking functions of the bank or company.
---------------------------------------------------------------------------

    (2) Extensions of credit to an executive officer of an affiliate of 
a bank are not subject to Secs. 215.4, 215.6, and 215.8 if--
    (i) The executive officer is excluded, by resolution of the board of 
directors or by the bylaws of the bank, from participation in major 
policymaking functions of the bank, and the executive officer does not 
actually participate in such functions;
    (ii) The affiliate does not control the bank;
    (iii) As determined annually, the assets of the affiliate do not 
constitute more than 10 percent of the consolidated assets of the 
company that--
    (A) Controls the bank; and
    (B) Is not controlled by any other company; and
    (iv) The executive officer of the affiliate is not otherwise subject 
to Secs. 215.4, 215.6, and 215.8.
    (3) For purposes of paragraphs (e)(1) and (e)(2)(i) of this section, 
a resolution of the board of directors or a corporate bylaw may--
    (i) Include the executive officer (by name or by title) in a list of 
persons excluded from participation in such functions; or
    (ii) Not include the executive officer in a list of persons 
authorized (by name or by title) to participate in such functions.
    (f) Foreign bank has the meaning given in 12 U.S.C. 3101(7).
    (g) Immediate family means the spouse of an individual, the 
individual's minor children, and any of the individual's children 
(including adults) residing in the individual's home.
    (h) Insider means an executive officer, director, or principal 
shareholder, and includes any related interest of such a person.
    (i) Lending limit. The lending limit for a member bank is an amount 
equal to the limit of loans to a single borrower established by section 
5200 of the Revised Statutes,2 12 U.S.C. 84. This amount is 
15 percent of the bank's unimpaired capital and unimpaired surplus in 
the case of loans that are not fully secured, and an additional 10 
percent of the bank's unimpaired capital and unimpaired surplus in the 
case of loans that are fully secured by readily marketable collateral 
having a market value, as determined by reliable and continuously 
available price quotations, at least equal to the amount of the loan. 
The lending limit also includes any higher amounts that are permitted by 
section 5200 of the Revised Statutes for the types of obligations listed 
therein as exceptions to the limit. A member bank's unimpaired capital 
and unimpaired surplus equals:
---------------------------------------------------------------------------


    \2\  Where State law establishes a lending limit for a State member 
bank that is lower than the amount permitted in section 5200 of the 
Revised Statutes, the lending limit established by applicable State laws 
shall be the lending limit for the State member bank.
---------------------------------------------------------------------------

    (1) The bank's Tier 1 and Tier 2 capital included in the bank's 
risk-based capital under the capital guidelines of the appropriate 
Federal banking agency, based on the bank's most recent consolidated 
report of condition filed under 12 USC 1817(a)(3); and

[[Page 387]]

    (2) The balance of the bank's allowance for loan and lease losses 
not included in the bank's Tier 2 capital for purposes of the 
calculation of risk-based capital by the appropriate Federal banking 
agency, based on the bank's most recent consolidated report of condition 
filed under 12 U.S.C. 1817(a)(3)
    (j) Member bank means any banking institution that is a member of 
the Federal Reserve System, including any subsidiary of a member bank. 
The term does not include any foreign bank that maintains a branch in 
the United States, whether or not the branch is insured (within the 
meaning of 12 U.S.C. 1813(s)) and regardless of the operation of 12 
U.S.C. 1813(h) and 12 U.S.C. 1828(j)(3)(B).
    (k) Pay an overdraft on an account means to pay an amount upon the 
order of an account holder in excess of funds on deposit in the account.
    (l) Person means an individual or a company.
    (m)(1) Principal shareholder means a person (other than an insured 
bank) that directly or indirectly, or acting through or in concert with 
one or more persons, owns, controls, or has the power to vote more than 
10 percent of any class of voting securities of a member bank or 
company. Shares owned or controlled by a member of an individual's 
immediate family are considered to be held by the individual.
    (2) A principal shareholder of a member bank does not include a 
company of which a member bank is a subsidiary.
    (n) Related interest of a person means:
    (1) A company that is controlled by that person; or
    (2) A political or campaign committee that is controlled by that 
person or the funds or services of which will benefit that person.
    (o) Subsidiary has the meaning given in 12 U.S.C. 1841(d), but does 
not include a subsidiary of a member bank.
[Reg. O, 59 FR 8837, Feb. 24, 1994; 59 FR 37930, July 26, 1994, as 
amended at 60 FR 31054, June 13, 1995; 61 FR 57770, Nov. 8, 1996; 62 FR 
13298, Mar. 20, 1997]



Sec. 215.3  Extension of credit.

    (a) An extension of credit is a making or renewal of any loan, a 
granting of a line of credit, or an extending of credit in any manner 
whatsoever, and includes:
    (1) A purchase under repurchase agreement of securities, other 
assets, or obligations;
    (2) An advance by means of an overdraft, cash item, or otherwise;
    (3) Issuance of a standby letter of credit (or other similar 
arrangement regardless of name or description) or an ineligible 
acceptance, as those terms are defined in Sec. 208.8(d) of this chapter;
    (4) An acquisition by discount, purchase, exchange, or otherwise of 
any note, draft, bill of exchange, or other evidence of indebtedness 
upon which an insider may be liable as maker, drawer, endorser, 
guarantor, or surety;
    (5) An increase of an existing indebtedness, but not if the 
additional funds are advanced by the bank for its own protection for:
    (i) Accrued interest; or
    (ii) Taxes, insurance, or other expenses incidental to the existing 
indebtedness;
    (6) An advance of unearned salary or other unearned compensation for 
a period in excess of 30 days; and
    (7) Any other similar transaction as a result of which a person 
becomes obligated to pay money (or its equivalent) to a bank, whether 
the obligation arises directly or indirectly, or because of an 
endorsement on an obligation or otherwise, or by any means whatsoever.
    (b) An extension of credit does not include:
    (1) An advance against accrued salary or other accrued compensation, 
or an advance for the payment of authorized travel or other expenses 
incurred or to be incurred on behalf of the bank;
    (2) A receipt by a bank of a check deposited in or delivered to the 
bank in the usual course of business unless it results in the carrying 
of a cash item for or the granting of an overdraft (other than an 
inadvertent overdraft in a limited amount that is promptly repaid, as 
described in Sec. 215.4(e) of this part);
    (3) An acquisition of a note, draft, bill of exchange, or other 
evidence of indebtedness through:
    (i) A merger or consolidation of banks or a similar transaction by

[[Page 388]]

which a bank acquires assets and assumes liabilities of another bank or 
similar organization; or
    (ii) Foreclosure on collateral or similar proceeding for the 
protection of the bank, provided that such indebtedness is not held for 
a period of more than three years from the date of the acquisition, 
subject to extension by the appropriate Federal banking agency for good 
cause;
    (4)(i) An endorsement or guarantee for the protection of a bank of 
any loan or other asset previously acquired by the bank in good faith; 
or
    (ii) Any indebtedness to a bank for the purpose of protecting the 
bank against loss or of giving financial assistance to it;
    (5) Indebtedness of $15,000 or less arising by reason of any general 
arrangement by which a bank:
    (i) Acquires charge or time credit accounts; or
    (ii) Makes payments to or on behalf of participants in a bank credit 
card plan, check credit plan, or similar open-end credit plan, provided:
    (A) The indebtedness does not involve prior individual clearance or 
approval by the bank other than for the purposes of determining 
authority to participate in the arrangement and compliance with any 
dollar limit under the arrangement; and
    (B) The indebtedness is incurred under terms that are not more 
favorable than those offered to the general public;
    (6) Indebtedness of $5,000 or less arising by reason of an interest-
bearing overdraft credit plan of the type specified in Sec. 215.4(e) of 
this part; or
    (7) A discount of promissory notes, bills of exchange, conditional 
sales contracts, or similar paper, without recourse.
    (c) Non-interest-bearing deposits to the credit of a bank are not 
considered loans, advances, or extensions of credit to the bank of 
deposit; nor is the giving of immediate credit to a bank upon 
uncollected items received in the ordinary course of business considered 
to be a loan, advance or extension of credit to the depositing bank.
    (d) For purposes of Sec. 215.4 of this part, an extension of credit 
by a member bank is considered to have been made at the time the bank 
enters into a binding commitment to make the extension of credit.
    (e) A participation without recourse is considered to be an 
extension of credit by the participating bank, not by the originating 
bank.
    (f) Tangible economic benefit rule--(1) In general. An extension of 
credit is considered made to an insider to the extent that the proceeds 
are transferred to the insider or are used for the tangible economic 
benefit of the insider.
    (2) Exception. An extension of credit is not considered made to an 
insider under paragraph (f)(1) of this section if:
    (i) The credit is extended on terms that would satisfy the standard 
set forth in Sec. 215.4(a) of this part for extensions of credit to 
insiders; and
    (ii) The proceeds of the extension of credit are used in a bona fide 
transaction to acquire property, goods, or services from the insider.
[Reg. O, 59 FR 8837, Feb. 24, 1994; 59 FR 37930, July 26, 1994]



Sec. 215.4  General prohibitions.

    (a) Terms and creditworthiness--(1) In general. No member bank may 
extend credit to any insider of the bank or insider of its affiliates 
unless the extension of credit:
    (i) Is made on substantially the same terms (including interest 
rates and collateral) as, and following credit underwriting procedures 
that are not less stringent than, those prevailing at the time for 
comparable transactions by the bank with other persons that are not 
covered by this part and who are not employed by the bank; and
    (ii) Does not involve more than the normal risk of repayment or 
present other unfavorable features.
    (2) Exception. Nothing in this paragraph (a) or paragraph (e)(2)(ii) 
of this section shall prohibit any extension of credit made pursuant to 
a benefit or compensation program--
    (i) That is widely available to employees of the member bank and, in 
the case of extensions of credit to an insider of its affiliates, is 
widely available to employees of the affiliates at which that person is 
an insider; and
    (ii) That does not give preference to any insider of the member bank 
over

[[Page 389]]

other employees of the member bank and, in the case of extensions of 
credit to an insider of its affiliates, does not give preference to any 
insider of its affiliates over other employees of the affiliates at 
which that person is an insider.
    (b) Prior approval. (1) No member bank may extend credit (which term 
includes granting a line of credit) to any insider of the bank or 
insider of its affiliates in an amount that, when aggregated with the 
amount of all other extensions of credit to that person and to all 
related interests of that person, exceeds the higher of $25,000 or 5 
percent of the member bank's unimpaired capital and unimpaired surplus, 
unless:
    (i) The extension of credit has been approved in advance by a 
majority of the entire board of directors of that bank; and
    (ii) The interested party has abstained from participating directly 
or indirectly in the voting.
    (2) In no event may a member bank extend credit to any insider of 
the bank or insider of its affiliates in an amount that, when aggregated 
with all other extensions of credit to that person, and all related 
interests of that person, exceeds $500,000, except by complying with the 
requirements of this paragraph (b).
    (3) Approval by the board of directors under paragraphs (b)(1) and 
(b)(2) of this section is not required for an extension of credit that 
is made pursuant to a line of credit that was approved under paragraph 
(b)(1) of this section within 14 months of the date of the extension of 
credit. The extension of credit must also be in compliance with the 
requirements of Sec. 215.4(a) of this part.
    (4) Participation in the discussion, or any attempt to influence the 
voting, by the board of directors regarding an extension of credit 
constitutes indirect participation in the voting by the board of 
directors on an extension of credit.
    (c) Individual lending limit-- No member bank may extend credit to 
any insider of the bank or insider of its affiliates in an amount that, 
when aggregated with the amount of all other extensions of credit by the 
member bank to that person and to all related interests of that person, 
exceeds the lending limit of the member bank specified in Sec. 215.2(i) 
of this part. This prohibition does not apply to an extension of credit 
by a member bank to a company of which the member bank is a subsidiary 
or to any other subsidiary of that company.
    (d) Aggregate lending limit --(1) General limit. A member bank may 
not extend credit to any insider of the bank or insider of its 
affiliates unless the extension of credit is in an amount that, when 
aggregated with the amount of all outstanding extensions of credit by 
that bank to all such insiders, does not exceed the bank's unimpaired 
capital and unimpaired surplus (as defined in Sec. 215.2(i) of this 
part).
    (2) Member banks with deposits of less than $100,000,000. (i) A 
member bank with deposits of less than $100,000,000 may by an annual 
resolution of its board of directors increase the general limit 
specified in paragraph (d)(1) of this section to a level not to exceed 
two times the bank's unimpaired capital and unimpaired surplus, if:
    (A) The board of directors determines that such higher limit is 
consistent with prudent, safe, and sound banking practices in light of 
the bank's experience in lending to its insiders and is necessary to 
attract or retain directors or to prevent restricting the availability 
of credit in small communities;
    (B) The resolution sets forth the facts and reasoning on which the 
board of directors bases the finding, including the amount of the bank's 
lending to its insiders as a percentage of the bank's unimpaired capital 
and unimpaired surplus as of the date of the resolution;
    (C) The bank meets or exceeds, on a fully-phased in basis, all 
applicable capital requirements established by the appropriate Federal 
banking agency; and
    (D) The bank received a satisfactory composite rating in its most 
recent report of examination.
    (ii) If a member bank has adopted a resolution authorizing a higher 
limit pursuant to paragraph (d)(2)(i) of this section and subsequently 
fails to meet the requirements of paragraph (d)(2)(i)(C) or (d)(2)(i)(D) 
of this section, the member bank shall not extend any additional credit 
(including a renewal

[[Page 390]]

of any existing extension of credit) to any insider of the bank or its 
affiliates unless such extension or renewal is consistent with the 
general limit in paragraph (d)(1) of this section.
    (3) Exceptions. (i) The general limit specified in paragraph (d)(1) 
of this section does not apply to the following:
    (A) Extensions of credit secured by a perfected security interest in 
bonds, notes, certificates of indebtedness, or Treasury bills of the 
United States or in other such obligations fully guaranteed as to 
principal and interest by the United States;
    (B) Extensions of credit to or secured by unconditional takeout 
commitments or guarantees of any department, agency, bureau, board, 
commission or establishment of the United States or any corporation 
wholly owned directly or indirectly by the United States;
    (C) Extensions of credit secured by a perfected security interest in 
a segregated deposit account in the lending bank; or
    (D) Extensions of credit arising from the discount of negotiable or 
nonnegotiable installment consumer paper that is acquired from an 
insider and carries a full or partial recourse endorsement or guarantee 
by the insider, provided that:
    (1) The financial condition of each maker of such consumer paper is 
reasonably documented in the bank's files or known to its officers;
    (2) An officer of the bank designated for that purpose by the board 
of directors of the bank certifies in writing that the bank is relying 
primarily upon the responsibility of each maker for payment of the 
obligation and not upon any endorsement or guarantee by the insider; and
    (3) The maker of the instrument is not an insider.
    (ii) The exceptions in paragraphs (d)(3)(i)(A) through (d)(3)(i)(C) 
of this section apply only to the amounts of such extensions of credit 
that are secured in the manner described therein.
    (e) Overdrafts. (1) No member bank may pay an overdraft of an 
executive officer or director of the bank or executive officer or 
director of its affiliates 3 on an account at the bank, 
unless the payment of funds is made in accordance with:
---------------------------------------------------------------------------


    \3\ This prohibition does not apply to the payment by a member bank 
of an overdraft of a principal shareholder of the member bank, unless 
the principal shareholder is also an executive officer or director. This 
prohibition also does not apply to the payment by a member bank of an 
overdraft of a related interest of an executive officer, director, or 
principal shareholder of the member bank or executive officer, director, 
or principal shareholder of its affiliates.
---------------------------------------------------------------------------

    (i) A written, preauthorized, interest-bearing extension of credit 
plan that specifies a method of repayment; or
    (ii) A written, preauthorized transfer of funds from another account 
of the account holder at the bank.
    (2) The prohibition in paragraph (e)(1) of this section does not 
apply to payment of inadvertent overdrafts on an account in an aggregate 
amount of $1,000 or less, provided:
    (i) The account is not overdrawn for more than 5 business days; and
    (ii) The member bank charges the executive officer or director the 
same fee charged any other customer of the bank in similar 
circumstances.
[Reg. O, 59 FR 8837, Feb. 24, 1994; 59 FR 37930, July 26, 1994, as 
amended at 61 FR 57770, Nov. 8, 1996; 62 FR 13298, Mar. 20, 1997]



Sec. 215.5  Additional restrictions on loans to executive officers of member banks.

    The following restrictions on extensions of credit by a member bank 
to any of its executive officers apply in addition to any restrictions 
on extensions of credit by a member bank to insiders of itself or its 
affiliates set forth elsewhere in this part. The restrictions of this 
section apply only to executive officers of the member bank and not to 
executive officers of its affiliates.
    (a) No member bank may extend credit to any of its executive 
officers, and no executive officer of a member bank shall borrow from or 
otherwise become indebted to the bank, except in the amounts, for the 
purposes, and upon the conditions specified in paragraphs (c) and (d) of 
this section.
    (b) No member bank may extend credit in an aggregate amount greater

[[Page 391]]

than the amount permitted in paragraph (c)(4) of this section to a 
partnership in which one or more of the bank's executive officers are 
partners and, either individually or together, hold a majority interest. 
For the purposes of paragraph (c)(4) of this section, the total amount 
of credit extended by a member bank to such partnership is considered to 
be extended to each executive officer of the member bank who is a member 
of the partnership.
    (c) A member bank is authorized to extend credit to any executive 
officer of the bank:
    (1) In any amount to finance the education of the executive 
officer's children;
    (2) In any amount to finance or refinance the purchase, 
construction, maintenance, or improvement of a residence of the 
executive officer, provided:
    (i) The extension of credit is secured by a first lien on the 
residence and the residence is owned (or expected to be owned after the 
extension of credit) by the executive officer; and
    (ii) In the case of a refinancing, that only the amount thereof used 
to repay the original extension of credit, together with the closing 
costs of the refinancing, and any additional amount thereof used for any 
of the purposes enumerated in this paragraph (c)(2), are included within 
this category of credit;
    (3) In any amount, if the extension of credit is secured in a manner 
described in Sec. 215.4(d)(3)(i)(A) through (d)(3)(i)(C) of this part; 
and
    (4) For any other purpose not specified in paragraphs (c)(1) through 
(c)(3) of this section, if the aggregate amount of extensions of credit 
to that executive officer under this paragraph does not exceed at any 
one time the higher of 2.5 per cent of the bank's unimpaired capital and 
unimpaired surplus or $25,000, but in no event more than $100,000.
    (d) Any extension of credit by a member bank to any of its executive 
officers shall be:
    (1) Promptly reported to the member bank's board of directors;
    (2) In compliance with the requirements of Sec. 215.4(a) of this 
part;
    (3) Preceded by the submission of a detailed current financial 
statement of the executive officer; and
    (4) Made subject to the condition in writing that the extension of 
credit will, at the option of the member bank, become due and payable at 
any time that the officer is indebted to any other bank or banks in an 
aggregate amount greater than the amount specified for a category of 
credit in paragraph (c) of this section.
[Reg. O, 59 FR 8837, Feb. 24, 1994; 59 FR 37930, July 26, 1994; 60 FR 
17636, Apr. 7, 1995]



Sec. 215.6  Prohibition on knowingly receiving unauthorized extension of credit.

    No executive officer, director, or principal shareholder of a member 
bank or any of its affiliates shall knowingly receive (or knowingly 
permit any of that person's related interests to receive) from a member 
bank, directly or indirectly, any extension of credit not authorized 
under this part.



Sec. 215.7  Extensions of credit outstanding on March 10, 1979.

    (a) Any extension of credit that was outstanding on March 10, 1979, 
and that would, if made on or after March 10, 1979, violate 
Sec. 215.4(c) of this part, shall be reduced in amount by March 10, 
1980, to be in compliance with the lending limit in Sec. 215.4(c) of 
this part. Any renewal or extension of such an extension of credit on or 
after March 10, 1979, shall be made only on terms that will bring the 
extension of credit into compliance with the lending limit of 
Sec. 215.4(c) of this part by March 10, 1980. However, any extension of 
credit made before March 10, 1979, that bears a specific maturity date 
of March 10, 1980, or later, shall be repaid in accordance with its 
repayment schedule in existence on or before March 10, 1979.
    (b) If a member bank is unable to bring all extensions of credit 
outstanding on March 10, 1979, into compliance as required by paragraph 
(a) of this section, the member bank shall promptly report that fact to 
the Comptroller of the Currency, in the case of a national bank, or to 
the appropriate Federal Reserve Bank, in the case of a State member 
bank, and explain the reasons why all the extensions of credit cannot

[[Page 392]]

be brought into compliance. The Comptroller or the Reserve Bank, as the 
case may be, is authorized, on the basis of good cause shown, to extend 
the March 10, 1980, date for compliance for any extension of credit for 
not more than two additional one-year periods.



Sec. 215.8  Records of member banks.

    (a) In general. Each member bank shall maintain records necessary 
for compliance with the requirements of this part.
    (b) Recordkeeping for insiders of the member bank. Any recordkeeping 
method adopted by a member bank shall:
    (1) Identify, through an annual survey, all insiders of the bank 
itself; and
    (2) Maintain records of all extensions of credit to insiders of the 
bank itself, including the amount and terms of each such extension of 
credit.
    (c) Recordkeeping for insiders of the member bank's affiliates. Any 
recordkeeping method adopted by a member bank shall maintain records of 
extensions of credit to insiders of the member bank's affiliates by:
    (1) Survey method. (i) Identifying, through an annual survey, each 
insider of the member bank's affiliates; and
    (ii) Maintaining records of the amount and terms of each extension 
of credit by the member bank to such insiders; or
    (2) Borrower inquiry method. (i) Requiring as part of each extension 
of credit that the borrower indicate whether the borrower is an insider 
of an affiliate of the member bank; and
    (ii) Maintaining records that identify the amount and terms of each 
extension of credit by the member bank to borrowers so identifying 
themselves.
    (3) Alternative recordkeeping methods for insiders of affiliates. A 
member bank may employ a recordkeeping method other than those 
identified in paragraphs (c)(1) and (c)(2) of this section if the 
appropriate Federal banking agency determines that the bank's method is 
at least as effective as the identified methods.
    (d) Special rule for non-commercial lenders. A member bank that is 
prohibited by law or by an express resolution of the board of directors 
of the bank from making an extension of credit to any company or other 
entity that is covered by this part as a company is not required to 
maintain any records of the related interests of the insiders of the 
bank or its affiliates or to inquire of borrowers whether they are 
related interests of the insiders of the bank or its affiliates.



Sec. 215.9  Reports by executive officers.

    Each executive officer of a member bank who becomes indebted to any 
other bank or banks in an aggregate amount greater than the amount 
specified for a category of credit in Sec. 215.5(c) of this part, shall, 
within 10 days of the date the indebtedness reaches such a level, make a 
written report to the board of directors of the officer's bank. The 
report shall state the lender's name, the date and amount of each 
extension of credit, any security for it, and the purposes for which the 
proceeds have been or are to be used.



Sec. 215.10  Reports on credit to executive officers.

    Each member bank shall include with (but not as part of) each report 
of condition (and copy thereof) filed pursuant to 12 U.S.C. 1817(a)(3) a 
report of all extensions of credit made by the member bank to its 
executive officers since the date of the bank's previous report of 
condition.



Sec. 215.11  Disclosure of credit from member banks to executive officers and principal shareholders.

    (a) Definitions. For the purposes of this section, the following 
definitions apply:
    (1) Principal shareholder of a member bank means any person 
4 other than an insured bank, or a foreign bank as defined in 
12 U.S.C. 3101(7), that, directly or indirectly, owns, controls, or has 
power to vote more than 10 percent of any class of voting securities of 
the member bank. The term includes a person that controls a principal 
shareholder (e.g., a person that controls a bank holding company). 
Shares of a bank (including a foreign bank), bank holding company, or 
other company owned or controlled by a member of an

[[Page 393]]

individual's immediate family are presumed to be owned or controlled by 
the individual for the purposes of determining principal shareholder 
status.
---------------------------------------------------------------------------


    \4\  The term ``stockholder of record'' appearing in 12 U.S.C. 
1972(2)(G) is synonymous with the term ``person.''
---------------------------------------------------------------------------

    (2) Related interest means:
    (i) Any company controlled by a person; or
    (ii) Any political or campaign committee the funds or services of 
which will benefit a person or that is controlled by a person. For the 
purpose of this section and subpart B of this part, a related interest 
does not include a bank or a foreign bank (as defined in 12 U.S.C. 
3101(7)).
    (b) Public disclosure. (1) Upon receipt of a written request from 
the public, a member bank shall make available the names of each of its 
executive officers and each of its principal shareholders to whom, or to 
whose related interests, the member bank had outstanding as of the end 
of the latest previous quarter of the year, an extension of credit that, 
when aggregated with all other outstanding extensions of credit at such 
time from the member bank to such person and to all related interests of 
such person, equaled or exceeded 5 percent of the member bank's capital 
and unimpaired surplus or $500,000, whichever amount is less. No 
disclosure under this paragraph is required if the aggregate amount of 
all extensions of credit outstanding at such time from the member bank 
to the executive officer or principal shareholder of the member bank and 
to all related interests of such a person does not exceed $25,000.
    (2) A member bank is not required to disclose the specific amounts 
of individual extensions of credit.
    (c) Maintaining records. Each member bank shall maintain records of 
all requests for the information described in paragraph (b) of this 
section and the disposition of such requests. These records may be 
disposed of after two years from the date of the request.
[Reg. O, 59 FR 8837, Feb. 24, 1994; 59 FR 37930, July 26, 1994]



Sec. 215.12  Reporting requirement for credit secured by certain bank stock.

    Each executive officer or director of a member bank the shares of 
which are not publicly traded shall report annually to the board of 
directors of the member bank the outstanding amount of any credit that 
was extended to the executive officer or director and that is secured by 
shares of the member bank.



Sec. 215.13  Civil penalties.

    Any member bank, or any officer, director, employee, agent, or other 
person participating in the conduct of the affairs of the bank, that 
violates any provision of this part (other than Sec. 215.11 of this 
part) is subject to civil penalties as specified in section 29 of the 
Federal Reserve Act (12 U.S.C. 504).

     Appendix--Section 5200 of the Revised Statutes Total Loans and 
                          Extensions of Credit

    (a)(1) The total loans and extensions of credit by a national 
banking association to a person outstanding at one time and not fully 
secured, as determined in a manner consistent with paragraph (2) of this 
subsection, by collateral having a market value at least equal to the 
amount of the loan or extension of credit shall not exceed 15 per centum 
of the unimpaired capital and unimpaired surplus of the association.
    (2) The total loans and extensions of credit by a national banking 
association to a person outstanding at one time and fully secured by 
readily marketable collateral having a market value, as determined by 
reliable and continuously available price quotations, at least equal to 
the amount of the funds outstanding shall not exceed 10 per centum of 
the unimpaired capital and unimpaired surplus of the association. This 
limitation shall be separate from and in addition to the limitations 
contained in paragraph (1) of this subsection.

                               Definitions

    (b) For the purposes of this section--
    (1) The term loans and extensions of credit shall include all direct 
or indirect advances of funds to a person made on the basis of any 
obligation of that person to repay the funds or repayable from specific 
property pledged by or on behalf of the person, and to the extent 
specified by the Comptroller of the Currency, such term shall also 
include any liability of a national banking association to advance funds 
to or on behalf of a person pursuant to a contractual commitment; and
    (2) The term person shall include an individual, sole 
proprietorship, partnership, joint venture, association, trust, estate, 
business trust, corporation, sovereign government, or agency, 
instrumentality, or political subdivision thereof, or any similar entity 
or organization.

[[Page 394]]

                               Exceptions

    (c) The limitations contained in subsection (a) of this section 
shall be subject to the following exceptions:
    (1) Loans or extensions of credit arising from the discount of 
commercial or business paper evidencing an obligation to the person 
negotiating it with recourse shall not be subject to any limitation 
based on capital and surplus.
    (2) The purchase of bankers' acceptances of the kind described in 
section 372 of this title and issued by other banks shall not be subject 
to any limitation based on capital and surplus.
    (3) Loans and extensions of credit secured by bills of lading, 
warehouse receipts, or similar documents transferring or securing title 
to readily marketable staples shall be subject to a limitation of 35 per 
centum of capital and surplus in addition to the general limitations if 
the market value of the staples securing each additional loan or 
extension of credit at all times equals or exceeds 115 per centum of the 
outstanding amount of such loan or extension of credit. The staples 
shall be fully covered by insurance whenever it is customary to insure 
such staples.
    (4) Loans or extensions of credit secured by bonds, notes, 
certificates of indebtedness, or Treasury bills of the United States or 
by other such obligations fully guaranteed as to principal and interest 
by the United States shall not be subject to any limitation based on 
capital and surplus.
    (5) Loans or extensions of credit to or secured by unconditional 
takeout commitments or guarantees of any department, agency, bureau, 
board, commission, or establishment of the United States or any 
corporation wholly owned directly or indirectly by the United States 
shall not be subject to any limitation based on capital and surplus.
    (6) Loans or extensions of credit secured by a segregated deposit 
account in the lending bank shall not be subject to any limitation based 
on capital and surplus.
    (7) Loans or extensions of credit to any financial institution or to 
any receiver, conservator, superintendent of banks, or other agent in 
charge of the business and property of such financial institution, when 
such loans or extensions of credit are approved by the Comptroller of 
the Currency, shall not be subject to any limitation based on capital 
and surplus.
    (8)(A) Loans and extensions of credit arising from the discount of 
negotiable or nonnegotiable installment consumer paper which carries a 
full recourse endorsement or unconditional guarantee by the person 
transferring the paper shall be subject under this section to a maximum 
limitation equal to 25 per centum of such capital and surplus, 
notwithstanding the collateral requirements set forth in subsection 
(a)(2) of this section.
    (B) If the bank's files or the knowledge of its officers of the 
financial condition of each maker of such consumer paper is reasonably 
adequate, and an officer of the bank designated for that purpose by the 
board of directors of the bank certifies in writing that the bank is 
relying primarily upon the responsibility of each maker for payment of 
such loans or extensions of credit and not upon any full or partial 
recourse endorsement or guarantee by the transferor, the limitations of 
this section as to the loans or extensions of credit of each such maker 
shall be the sole applicable loan limitations.
    (9)(A) Loans and extensions of credit secured by shipping documents 
or instruments transferring or securing title covering livestock or 
giving a lien on livestock when the market value of the livestock 
securing the obligation is not at any time less than 115 per centum of 
the face amount of the note covered, shall be subject under this section 
notwithstanding the collateral requirements set forth in subsection 
(a)(2) of this section, to a maximum limitation equal to 25 per centum 
of such capital and surplus.
    (B) Loans and extensions of credit which arise from the discount by 
dealers in dairy cattle of paper given in payment for dairy cattle, 
which paper carries a full recourse endorsement or unconditional 
guarantee of the seller, and which are secured by the cattle being sold, 
shall be subject under this section, notwithstanding the collateral 
requirements set forth in paragraph (a)(2) of this section, to a 
limitation of 25 per centum of such capital and surplus.
    (10) Loans or extensions of credit to the Student Loan Marketing 
Association shall not be subject to any limitation based on capital and 
surplus.

                Authority of Comptroller of the Currency

    (d)(1) The Comptroller of the Currency may prescribe rules and 
regulations to administer and carry out the purposes of this section, 
including rules or regulations to define or further define terms used in 
this section and to establish limits or requirements other than those 
specified in this section for particular classes or categories of loans 
or extensions of credit.
    (2) The Comptroller of the Currency also shall have authority to 
determine when a loan putatively made to a person shall for purposes of 
this section be attributed to another person.
[48 FR 42806, Sept. 20, 1983]

[[Page 395]]



 Subpart B--Reports on Indebtedness of Executive Officers and Principal 
                   Shareholders to Correspondent Banks



Sec. 215.20  Authority, purpose, and scope.

    (a) Authority. This subpart is issued pursuant to section 11(i) of 
the Federal Reserve Act (12 U.S.C. 248(i)) and 12 U.S.C. 1972(2)(F)(vi).
    (b) Purpose and scope. This subpart implements the reporting 
requirements of Title VIII of the Financial Institutions Regulatory and 
Interest Rate Control Act of 1978 (FIRA) (Pub. L. 95-630) as amended by 
the Garn-St Germain Depository Institutions Act of 1982 (Pub. L. 97-
320), 12 U.S.C. 1972 (2)(g). Title VIII prohibits (1) preferential 
lending by a bank to executive officers, directors, and principal 
shareholders of another bank when there is a correspondent account 
relationship between the banks, and (2) the opening of a correspondent 
account relationship between banks where there is a preferential 
extension of credit by one of the banks to an executive officer, 
director, or principal shareholder of the other bank.
[44 FR 67979, Nov. 28, 1979, as amended at 48 FR 56936, Dec. 27, 1983]



Sec. 215.21  Definitions.

    For the purposes of this subpart, the following definitions apply 
unless otherwise specified:
    (a) Bank has the meaning given in 12 U.S.C. 1971 and 1972, and 
includes a branch or agency of a foreign bank, or a commercial lending 
company controlled by a foreign bank or by a company that controls a 
foreign bank, where the branch or agency is maintained in a State of the 
United States or in the District of Columbia or the commercial lending 
company is organized under State law.
    (b) Company, control of a company or bank, executive officer, 
extension of credit, immediate family, and person have the meanings 
provided in subpart A.
    (c) Correspondent account is an account that is maintained by a bank 
with another bank for the deposit or placement of funds. A correspondent 
account does not include:
    (1) Time deposits at prevailing market rates, and
    (2) An account maintained in the ordinary course of business solely 
for the purpose of effecting federal funds transactions at prevailing 
market rates or making Eurodollar placements at prevailing market rates.
    (d) Correspondent bank means a bank that maintains one or more 
correspondent accounts for a member bank during a calendar year that in 
the aggregate exceed an average daily balance during that year of 
$100,000 or 0.5 per cent of such member bank's total deposits (as 
reported in its first consolidated report of condition during that 
calendar year), which ever amount is smaller.
    (e) Principal shareholder and related interest have the meanings 
provided in Sec. 215.10 of Subpart A.
[Reg. O, 44 FR 67979, Nov. 28, 1979, as amended at 48 FR 42805, Sept. 
20, 1983; 59 FR 8842, Feb. 24, 1994]



Sec. 215.22  Report by executive officers and principal shareholders.

    (a) Annual report. If during any calendar year an executive officer 
or principal shareholder of a member bank or a related interest of such 
a person has outstanding an extension of credit from a correspondent 
bank of the member bank, the executive officer or principal shareholder 
shall, on or before January 31 of the following year, make a written 
report to the board of directors of the member bank.5
---------------------------------------------------------------------------


    \5\ Persons reporting under this section are not required to include 
information on extensions of credit that are fully described in a report 
by a person they control or a person that controls them, provided they 
identify their relationships with such other person.
---------------------------------------------------------------------------

    (b) Contents of report. The report required by this section shall 
include the following information:
    (1) The maximum amount of indebtedness of the executive officer or 
principal shareholder and of each of that person's related interests to 
each of the member bank's correspondent banks during the calendar year;
    (2) The amount of indebtedness of the executive officer or principal 
shareholder and of each of that person's related interests outstanding 
to each of the member bank's correspondent

[[Page 396]]

banks as of ten business days before the report required by this section 
is filed;6 and
---------------------------------------------------------------------------


    \6\ If the amount of indebtedness outstanding to a correspondent 
bank ten days before the filing of the report is not available or cannot 
be readily ascertained, an estimate of the amount of indebtedness may be 
filed with the report, provided that the report is supplemented within 
the next 30 days with the actual amount of indebtedness.
---------------------------------------------------------------------------

    (3) A description of the terms and conditions (including the range 
of interest rates, the original amount and date, maturity date, payment 
terms, security, if any, and any other unusual terms or conditions) of 
each extension of credit included in the indebtedness reported under 
paragraph (b)(1) of this section.
    (c) Definitions. For the purposes of this section:
    (1) Indebtedness means an extension of credit, but does not include:
    (i) Commercial paper, bonds, and debentures issued in the ordinary 
course of business; and
    (ii) Consumer credit (as defined in 12 CFR 226.2(a)(12) in an 
aggregate amount of $5,000 or less from each of the member bank's 
correspondent banks, provided the indebtedness is incurred under terms 
that are not more favorable than those offered to the general public.
    (2) Maximum amount of indebtedness means, at the option of the 
reporting person, either (i) the highest outstanding indebtedness during 
the calendar year for which the report is made, or (ii) the highest end 
of the month indebtedness outstanding during the calendar year for which 
the report is made.
    (d) Retention of reports at member banks. The reports required by 
this section shall be retained at the member bank for a period of three 
years. The Reserve Bank or the Comptroller, as the case may be, may 
require these reports to be retained by the bank for an additional 
period of time. The reports filed under this section are not required by 
this regulation to be made available to the public and shall not be 
filed with the Reserve Bank or the Comptroller unless specifically 
requested.
    (e) Member bank's responsibility. Each member bank shall advise each 
of its executive officers and each of its principal shareholders (to the 
extent known by the bank) of the reports required by this section and 
make available to each of these persons a list of the names and 
addresses of the member bank's correspondent banks.
[Reg. O, 44 FR 67979, Nov. 28, 1979, as amended at 48 FR 42805, Sept. 
20, 1983; 59 FR 8842, Feb. 24, 1994]



Sec. 215.23  Disclosure of credit from correspondent banks to executive officers and principal shareholders.

    (a) Public disclosure. (1) Upon receipt of a written request from 
the public, a member bank shall make available the names of each of its 
executive officers and each of its principal shareholders to whom, or to 
whose related interests, any correspondent bank of the member bank had 
outstanding, at any time during the previous calendar year, an extension 
of credit that, when aggregated with all other outstanding extensions of 
credit at such time from all correspondent banks of the member bank to 
such person and to all related interests of such person, equaled or 
exceeded 5 percent of the member bank's capital and unimpaired surplus 
or $500,000, whichever amount is less. No disclosure under this 
paragraph is required if the aggregate amount of all extensions of 
credit outstanding from all correspondent banks of the member bank to 
the executive officer or principal shareholder of the member bank and to 
all related interests of such a person does not exceed $25,000 at any 
time during the previous calendar year.
    (2) A member bank is not required to disclose the specific amounts 
of individual extensions of credit.
    (b) Maintaining records. Each member bank shall maintain records of 
all requests for the information described in paragraph (a) of this 
section and the disposition of such requests. These records may be 
disposed of after two years from the date of the request.
[48 FR 56936, Dec. 27, 1983]

[[Page 397]]



PART 216--SECURITY PROCEDURES (REGULATION P)--Table of Contents




Sec.
216.1  Authority, purpose, and scope.
216.2  Designation of security officer.
216.3  Security program.
216.4  Report.
216.5  Federal Reserve Banks.

    Authority:  12 U.S.C. 1881-1884.

    Source:  Reg. P, 56 FR 13071, Mar. 29, 1991, unless otherwise noted.



Sec. 216.1  Authority, purpose, and scope.

    (a) This regulation is issued by the Board of Governors of the 
Federal Reserve System (the ``Board'') pursuant to section 3 of the Bank 
Protection Act of 1968 (12 U.S.C. 1882). It applies to Federal Reserve 
Banks and state banks that are members of the Federal Reserve System. It 
requires each bank to adopt appropriate security procedures to 
discourage robberies, burglaries, and larcenies, and to assist in the 
identification and prosecution of persons who commit such acts.
    (b) It is the responsibility of the member bank's board of directors 
to comply with this regulation and ensure that a written security 
program for the bank's main office and branches is developed and 
implemented.



Sec. 216.2  Designation of security officer.

    Upon becoming a member of the Federal Reserve System, a state bank's 
board of directors shall designate a security officer who shall have the 
authority, subject to the approval of the board of directors to develop, 
within a reasonable time, but no later than 180 days, and to administer 
a written security program for each banking office.



Sec. 216.3  Security program.

    (a) Contents of security program. The security program shall:
    (1) Establish procedures for opening and closing for business and 
for the safekeeping of all currency, negotiable securities, and similar 
valuables at all times;
    (2) Establish procedures that will assist in identifying persons 
committing crimes against the institution and that will preserve 
evidence that may aid in their identification and prosecution. Such 
procedures may include, but are not limited to:
    (i) Maintaining a camera that records activity in the banking 
office;
    (ii) Using identification devices, such as prerecorded serial-
numbered bills, or chemical and electronic devices; and
    (iii) Retaining a record of any robbery, burglary, or larceny 
committeed against the bank;
    (3) Provide for initial and periodic training of officers and 
employees in their responsibilities under the security program and in 
proper employee conduct during and after a burglary, robbery, or 
larceny; and
    (4) Provide for selecting, testing, operating, and maintaining 
appropriate security devices, as specified in paragraph (b) of this 
section.
    (b) Security devices. Each member bank shall have, at a minimum, the 
following security devices:
    (1) A means of protecting cash and other liquid assets, such as a 
vault, safe, or other secure space;
    (2) A lighting system for illuminating, during the hours of 
darkness, the area around the vault, if the vault is visible from 
outside the banking office;
    (3) Tamper-resistent locks on exterior doors and exterior windows 
that may be opened;
    (4) An alarm system or other appropriate device for promptly 
notifying the nearest responsible law enforcement officers of an 
attempted or perpetrated robbery or burglary; and
    (5) Such other devices as the security officer determines to be 
appropriate, taking into consideration:
    (i) The incidence of crimes against financial institutions in the 
area;
    (ii) The amount of currency and other valuables exposed to robbery, 
burglary, or larcency;
    (iii) The distance of the banking office from the nearest 
responsible law enforcement officers;'
    (iv) The cost of the security devices;
    (v) Other security measures in effect at the banking office; and
    (vi) The physical characteristics of the structure of the banking 
office and its surroundings.



Sec. 216.4  Report.

    The security officer for each member bank shall report at least 
annually to

[[Page 398]]

the bank's board of directors on the implementation, administration, and 
effectiveness of the security program.



Sec. 216.5  Federal Reserve Banks.

    Each Reserve Bank shall develop and maintain a written security 
program for its main office and branches subject to review and approval 
of the Board.



PART 217--PROHIBITION AGAINST THE PAYMENT OF INTEREST ON DEMAND DEPOSITS (REGULATION Q)--Table of Contents




                               Regulations

Sec.
217.1  Authority, purpose, and scope.
217.2  Definitions.
217.3  Interest on demand deposits.

                             Interpretations

217.101  Premiums on deposits.

    Authority:  12 U.S.C. 248, 371a, 461, 505, 1818, and 3105.

                               Regulations

    Source:  Sections 217.1 through 217.6 appear at Reg. Q, 51 FR 9637, 
Mar. 20, 1986, unless otherwise noted.



Sec. 217.1  Authority, purpose, and scope.

    (a) Authority. This part is issued under the authority of section 19 
of the Federal Reserve Act (12 U.S.C. 371a, 461, 505), section 7 of the 
International Banking Act of 1978 (12 U.S.C. 3105), section 11 of the 
Federal Reserve Act (12 U.S.C. 248), and section 8 of the Federal 
Deposit Insurance Act (12 U.S.C. 1818), unless otherwise noted.
    (b) Purpose. This part prohibits the payment of interest on demand 
deposits by member banks and other depository institutions within the 
scope of this part.
    (c) Scope. (1) This regulation applies to state chartered banks that 
are members of the Federal Reserve under section 9 of the Federal 
Reserve Act (12 U.S.C. 321, et seq.) and to all national banks. The 
regulation also applies to any Federal branch or agency of a foreign 
bank and to a State uninsured branch or agency of a foreign bank in the 
same manner and to the same extent as if the branch or agency were a 
member bank, except as may be otherwise provided by the Board, if:
    (i) Its parent foreign bank has total worldwide consolidated bank 
assets in excess of $1 billion;
    (ii) Its parent foreign bank is controlled by a foreign company 
which owns or controls foreign banks that in the aggregate have total 
worldwide consolidated bank assets in excess of $1 billion; or
    (iii) Its parent foreign bank is controlled by a group of foreign 
companies that own or control foreign banks that in the aggregate have 
total worldwide consolidated bank assets in excess of $1 billion.
    (2) For deposits held by a member bank or a foreign bank, this 
regulation does not apply to ``any deposit that is payable only at an 
office located outside of the United States'' (i.e., the States of the 
United States and the District of Columbia) as defined in Sec. 204.2(t) 
of the Board's Regulation D-- Reserve Requirements of Depository 
Institutions (12 CFR 20.4).
[Reg. Q, 51 FR 9637, Mar. 20, 1986, as amended at 57 FR 43336, Sept. 21, 
1992]



Sec. 217.2  Definitions.

    For purposes of this part, the following definitions apply unless 
otherwise specified;
    (a) Demand deposit means any deposit that is considered to be a 
demand deposit under Sec. 204.2(b) of the Board's Regulation D--Reserve 
Requirements of Depository Institutions (12 CFR part 204).
    (b) Deposit means any liability of a member bank that is considered 
to be a deposit under Sec. 204.2(a) of the Board's Regulation D--Reserve 
Requirements of Depository Institutions (12 CFR part 204).
    (c) Foreign bank means any bank that is considered to be a foreign 
bank under Sec. 204.2(o) of the Board's Regulation D--Reserve 
Requirements of Depository Institutions (12 CFR part 204).
    (d) Interest means any payment to or for the account of any 
depositor as compensation for the use of funds constituting a deposit. A 
member bank's absorption of expenses incident to providing a normal 
banking function or its

[[Page 399]]

forbearance from charging a fee in connection with such a service is not 
considered a payment of interest.



Sec. 217.3  Interest on demand deposits.

    No member bank of the Federal Reserve System shall, directly or 
indirectly, by any device whatsoever, pay any interest on any demand 
deposit.\1\
---------------------------------------------------------------------------


    \1\ A member bank may continue to pay interest on a time deposit for 
not more than ten calendar days; (1) Where the member bank has provided 
in the time deposit contract that, if the deposit or any portion thereof 
is withdrawn not more than ten calendar days after a maturity date (one 
business day for ``IBF time deposits'' as defined in Sec. 204.8(a)(2) of 
Regulation D), interest will continue to be paid for such period; or (2) 
for a period between a maturity date and the date of renewal of the 
deposit, provided that such certificate is renewed within ten calendar 
days after maturity.
---------------------------------------------------------------------------

                             Interpretations



Sec. 217.101  Premiums on deposits.

    (a) Section 19(i) of the Federal Reserve Act and Sec. 217.3 of 
Regulation Q prohibits a member bank from paying interest on a demand 
deposit. Premiums, whether in the form of merchandise, credit, or cash, 
given by a member bank to a depositor will be regarded as an advertising 
or promotional expense rather than a payment of interest if:
    (1) The premium is given to a depositor only at the time of the 
opening of a new account or an addition to an existing account;
    (2) No more than two premiums per account are given within a 12-
month period; and
    (3) The value of the premium or, in the case, of articles of 
merchandise, the total cost (including taxes, shipping, warehousing, 
packaging, and handling costs) does not exceed $10 for deposits of less 
than $5,000 or $20 for deposits of $5,000 or more.

The costs of premiums may not be averaged. The member bank should retain 
sufficient supporting documentation showing that the total cost of a 
premium, including shipping, warehousing, packaging, and handling costs, 
does not exceed the applicable $10/$20 limitations and that no portion 
of the total cost of any premium has been attributed to development, 
advertising, promotional, or other expenses. A member bank is not 
permitted directly or indirectly to solicit or promote deposits from 
customers on the basis that the funds will be divided into more than one 
account by the institution for the purpose of providing more than two 
premiums per deposit within a 12-month period.
    (b) Notwithstanding paragraph (a) of this section, any premium that 
is not, directly or indirectly, related to or dependent on the balance 
in a demand deposit account and the duration of the account balance 
shall not be considered the payment of interest on a demand deposit 
account and shall not be subject to the limitations in paragraph (a) of 
this section.
[52 FR 47698, Dec. 16, 1987. Redesignated at 57 FR 43336, Sept. 21, 
1992; 62 FR 26737, May 15, 1997]



PART 219--REIMBURSEMENT FOR PROVIDING FINANCIAL RECORDS; RECORDKEEPING REQUIREMENTS FOR CERTAIN FINANCIAL RECORDS (REGULATION S)--Table of Contents




    Subpart A--Reimbursement to Financial Institutions for Providing 
                            Financial Records

Sec.
219.1  Authority, purpose and scope.
219.2  Definitions.
219.3  Cost reimbursement.
219.4  Exceptions.
219.5  Conditions for payment.
219.6  Payment procedures.

Subpart B--Recordkeeping and Reporting Requirements for Funds Transfers 
                        and Transmittals of Funds

219.21  Authority, purpose and scope.
219.22  Definitions.
219.23  Recordkeeping and reporting requirements.
219.24  Retention period.

    Authority:  12 U.S.C. 3415.

    Source:  44 FR 55813, Sept. 28, 1979, unless otherwise noted.

[[Page 400]]



    Subpart A--Reimbursement to Financial Institutions for Providing 
                            Financial Records



Sec. 219.1  Authority, purpose and scope.

    This subpart of Regulation S (12 CFR part 219, subpart A) is issued 
by the Board of Governors of the Federal Reserve System (the Board) 
under section 1115 of the Right to Financial Privacy Act (the Act) (12 
U.S.C. 3415). It establishes the rates and conditions for reimbursement 
of reasonably necessary costs directly incurred by financial 
institutions in assembling or providing customer financial records to a 
government authority pursuant to the Act.
[60 FR 233, Jan. 3, 1995]



Sec. 219.2  Definitions.

    For the purposes of this subpart, the following definitions shall 
apply:
    Customer means any person or authorized representative of that 
person who uses any service of a financial institution, or for whom a 
financial institution acts or has acted as a fiduciary in relation to an 
account maintained in the person's name. Customer does not include 
corporations or partnerships comprised of more than five persons.
    Financial institution means any office of a bank, savings bank, card 
issuer as defined in section 103 of the Consumers Credit Protection Act 
(15 U.S.C. 1602(n)), industrial loan company, trust company, savings 
association, building and loan, or homestead association (including 
cooperative banks), credit union, or consumer finance institution, 
located in any State or territory of the United States, the District of 
Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.
    Financial record means an original or copy of, or information known 
to have been derived from, any record held by a financial institution 
pertaining to a customer's relationship with the financial institution.
    Government authority means any agency or department of the United 
States, or any officer, employee or agent thereof.
    Person means an individual or a partnership of five or fewer 
individuals.
[Reg. S, 61 FR 29640, June 12, 1996]



Sec. 219.3  Cost reimbursement.

    (a) Fees payable. Except as provided in Sec. 219.4, a government 
authority, or a court issuing an order or subpoena in connection with 
grand jury proceedings, seeking access to financial records pertaining 
to a customer shall reimburse the financial institution for reasonably 
necessary costs directly incurred in searching for, reproducing or 
transporting books, papers, records, or other data as set forth in this 
section. The reimbursement schedule for a financial institution is set 
forth in Appendix A to this section. If a financial institution has 
financial records that are stored at an independent storage facility 
that charges a fee to search for, reproduce, or transport particular 
records requested, these costs are considered to be directly incurred by 
the financial institution and may be included in the reimbursement.
    (b) Search and processing costs. (1) Reimbursement of search and 
processing costs shall cover the total amount of personnel time spent in 
locating, retrieving, reproducing, and preparing financial records for 
shipment. Search and processing costs shall not cover analysis of 
material or legal advice.
    (2) If itemized separately, search and processing costs may include 
the actual cost of extracting information stored by computer in the 
format in which it is normally produced, based on computer time and 
necessary supplies; however, personnel time for computer search may be 
paid for only at the rates specified in Appendix A to this section.
    (c) Reproduction costs. The reimbursement rates for reproduction 
costs for requested documents are set forth in Appendix A to this 
section. Copies of photographs, films, computer tapes, and other 
materials not listed in Appendix A to this section are reimbursed at 
actual cost.
    (d) Transportation costs. Reimbursement for transportation costs 
shall be for the reasonably necessary costs directly incurred to 
transport personnel to locate and retrieve the requested information, 
and to convey such material to the place of examination.
[Reg. S, 61 FR 29640, June 12, 1996]

[[Page 401]]

            Appendix A to Sec. 219.3--Reimbursement Schedule

Reproduction:
    Photocopy, per page--$.25
    Paper copies of microfiche, per frame--$.25
    Duplicate microfiche, per microfiche--$.50
    Computer diskette--$5.00
Search and Processing:
    Clerical/Technical, hourly rate--$11.00
    Manager/Supervisory, hourly rate--$17.00

[Reg. S, 61 FR 29640, June 12, 1996]



Sec. 219.4  Exceptions.

    A financial institution is not entitled to reimbursement under this 
subpart for costs incurred in assembling or providing financial records 
or information related to:
    (a) Security interests, bankruptcy claims, debt collection. Any 
financial records provided as an incident to perfecting a security 
interest, proving a claim in bankruptcy, or otherwise collecting on a 
debt owing either to the financial institution itself or in its role as 
a fiduciary.
    (b) Government loan programs. Financial records that are necessary 
to permit the appropriate government authority to carry out its 
responsibilities under a government loan, loan guaranty or loan 
insurance program.
    (c) Nonidentifiable information. Financial records that are not 
identified with or identifiable as being derived from the financial 
records of a particular customer.
    (d) Financial supervisory agencies. Financial records disclosed to a 
financial supervisory agency in the exercise of its supervisory, 
regulatory, or monetary functions with respect to a financial 
institution.
    (e) Internal Revenue summons. Financial records disclosed in 
accordance with procedures authorized by the Internal Revenue Code.
    (f) Federally required reports. Financial records required to be 
reported in accordance with any federal statute or rule promulgated 
thereunder.
    (g) Government civil or criminal litigation. Financial records 
sought by a government authority under the Federal Rules of Civil or 
Criminal Procedure or comparable rules of other courts in connection 
with litigation to which the government authority and the customer are 
parties.
    (h) Administrative agency subpoenas. Financial records sought by a 
government authority pursuant to an administrative subpoena issued by an 
administrative law judge in an adjudicatory proceeding subject to 5 
U.S.C. 554, and to which the government authority and the customer are 
parties.
    (i) Investigation of financial institution or its noncustomer. 
Financial records sought by a government authority in connection with a 
lawful proceeding, investigation, examination, or inspection directed at 
the financial institution in possession of such records, or at an entity 
that is not a customer as defined in Sec. 219.2 of this part.
    (j) General Accounting Office requests. Financial records sought by 
the General Accounting Office pursuant to an authorized proceeding, 
investigation, examination, or audit directed at a government authority.
    (k) Federal Housing Finance Board requests. Financial records or 
information sought by the Federal Housing Finance Board (FHFB) or any of 
the Federal home loan banks in the exercise of the FHFB's authority to 
extend credit to financial institutions or others.
    (l) Department of Veterans Affairs. The disclosure of the name and 
address of any customer to the Department of Veterans Affairs where such 
disclosure is necessary to, and used solely for, the proper 
administration of benefits programs under laws administered by that 
Department.


[Reg. S, 61 FR 29640, June 12, 1996]



Sec. 219.5  Conditions for payment.

    (a) Direct costs. Payment shall be made only for costs that are both 
directly incurred and reasonably necessary to provide requested 
material. Search and processing, reproduction, and transportation costs 
shall be considered separately when determining whether the costs are 
reasonably necessary.
    (b) Compliance with legal process, request, or authorization. No 
payment may be made to a financial institution until it satisfactorily 
complies with the legal process, the formal written request, or the 
customer authorization.

[[Page 402]]

When the legal process or formal written request is withdrawn, or the 
customer authorization is revoked, or where the customer successfully 
challenges disclosure to a grand jury or government authority, the 
financial institution shall be reimbursed for the reasonably necessary 
costs incurred in assembling the requested financial records prior to 
the time the financial institution is notified of such event.
    (c) Itemized bill or invoice. No reimbursement is required unless a 
financial institution submits an itemized bill or invoice specifically 
detailing its search and processing, reproduction, and transportation 
costs. Search and processing time should be billed in 15-minute 
increments.
[Reg. S, 61 FR 29641, June 12, 1996]



Sec. 219.6  Payment procedures.

    (a) Notice to submit invoice. Promptly following a service of legal 
process or request, the court or government authority shall notify the 
financial institution that it must submit an itemized bill or invoice in 
order to obtain payment and shall furnish an address for this purpose.
    (b) Special notice. If a grand jury or government authority 
withdraws the legal process or formal written request, or if the 
customer revokes the authorization, or if the legal process or request 
has been successfully challenged by the customer, the grand jury or 
government authority shall promptly notify the financial institution of 
these facts, and shall also notify the financial institution that it 
must submit an itemized bill or invoice in order to obtain payment of 
costs incurred prior to the time the financial institution receives this 
notice.
[Reg. S, 61 FR 29641, June 12, 1996; 61 FR 32317, June 24, 1996]



Subpart B--Recordkeeping and Reporting Requirements for Funds Transfers 
                        and Transmittals of Funds

    Authority:  12 U.S.C. 1829b(b)(2) and (3).

    Source:  60 FR 233, Jan. 3, 1995, unless otherwise noted.



Sec. 219.21  Authority, purpose and scope.

    This subpart of Regulation S (12 CFR part 219, subpart B) is issued 
by the Board under the authority of section 21(b) of the Federal Deposit 
Insurance Act (12 U.S.C. 1829b), as amended by the Annunzio-Wylie Anti-
Money Laundering Act of 1992 (Pub. L. 102-550, Title XV; 106 Stat. 3672, 
4044), which authorizes the Board and the Secretary of the Treasury 
jointly to prescribe recordkeeping and reporting requirements for 
domestic wire transfers by insured depository institutions; and which 
also requires the Board and the Treasury jointly to prescribe 
recordkeeping and reporting requirements for international wire 
transfers by insured depository institutions and by nonbank financial 
institutions. The definitions and recordkeeping and reporting 
requirements referenced in this subpart are promulgated and administered 
jointly by the Board and the Treasury and are codified in 31 CFR 103.11 
and 103.33(e) and (f). This subpart does not apply to a particular 
person or class of persons or a particular transaction or class of 
transactions to the extent that the Treasury has determined that 31 CFR 
103.33(e) or (f) do not apply to that person, transaction, or class of 
persons or transactions. These recordkeeping and reporting requirements 
will assist in the prosecution of money laundering activities and are 
determined to have a high degree of usefulness in criminal, tax or 
regulatory investigations or proceedings.
[60 FR 233, Jan. 3, 1995, as amended by Reg. S, 61 FR 58975, Nov. 20, 
1996]



Sec. 219.22  Definitions.

    The following terms are defined in 31 CFR 103.11 under the joint 
authority of the Board and the Treasury:

    Accept.
    Beneficiary.
    Beneficiary's bank.
    Established customer.
    Execution date.
    Funds transfer.
    Intermediary bank.
    Intermediary financial institution.
    Originator.
    Originator's bank.
    Payment date.
    Payment order.
    Receiving bank.

[[Page 403]]

    Receiving financial institution.
    Recipient.
    Recipient's financial institution.
    Sender.
    Transmittal of funds.
    Transmittal order.
    Transmittor.
    Transmittor's financial institution.



Sec. 219.23  Recordkeeping and reporting requirements.

    (a) Domestic and international funds transfers by insured depository 
institutions. The Board and the Treasury are authorized to promulgate 
jointly recordkeeping and reporting requirements for domestic and 
international funds transfers by insured depository institutions 
whenever the agencies determine that the maintenance of such records has 
a high degree of usefulness in criminal, tax, or regulatory 
investigations or proceedings. These regulations are codified at 31 CFR 
103.33(e). For the purposes of this subpart, the provisions of 31 CFR 
103.33(e) apply only to funds transfers by insured depository 
institutions.
    (b) International transmittals of funds by financial institutions 
other than insured depository institutions. The Board and the Treasury 
are required to promulgate jointly reporting and recordkeeping 
requirements for international transmittals of funds by financial 
institutions, including brokers and dealers in securities and businesses 
that provide money transmitting services. In prescribing these 
requirements, the Board and the Treasury take into account the 
usefulness of these records in criminal, tax, or regulatory 
investigations or proceedings and the effect the recordkeeping will have 
on the cost and efficiency of the payment system. These regulations are 
codified at 31 CFR 103.33(f). For the purposes of this subpart, the 
provisions of 31 CFR 103.33(f) apply only to international transmittals 
of funds.



Sec. 219.24  Retention period.

    All records that are required to be retained by this subpart shall 
be retained for a period of five years. All these records shall be filed 
or stored in such a way as to be accessible within a reasonable period 
of time, taking into consideration the nature of the record and the 
amount of time that has expired since the record was made. Any records 
required to be retained by this subpart shall be made available to the 
Board upon request.
[[Page 405]]


                              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 407]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 1998)

                      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 3201)
     XXIII  Department of Energy (Part 3301)

[[Page 408]]

      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      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)
       LXI  National Labor Relations Board (Part 7101)
      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)

[[Page 409]]

       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        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)
      XIII  Northeast Dairy Compact Commission (Parts 1300--1399)
       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 the Chief Financial Officer, 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)

[[Page 410]]

     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    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)

[[Page 411]]

      VIII  Federal Financing Bank (Parts 800--899)
        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)

[[Page 412]]

            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        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 413]]

        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 414]]

                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 415]]

       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      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 Standards, 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)

[[Page 416]]

                      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)
       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)

[[Page 417]]

               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)
        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)

[[Page 418]]

             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)
        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)

[[Page 419]]

       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)

                        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 
                (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)

[[Page 420]]

         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)
       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  United States 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)

[[Page 421]]

        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)
        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)

[[Page 422]]

       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)
         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
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 423]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 1998)

                                                  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, United      22, II
     States
  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
  Chief Financial Officer, Office of              7, XXX
  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
  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
American Indians, Office of the Special Trustee   25, VII

[[Page 424]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
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
Chief Financial Officer, Office of                7, XXX
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

[[Page 425]]

  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  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 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

[[Page 426]]

Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  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
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 427]]

  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
  American Indians, Office of the Special         25, VII
       Trustee
  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

[[Page 428]]

  Mines, Bureau of                                30, VI
  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, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, United States        22, II; 48, 7
       Agency for
  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 Standards, Office of           29, II, 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 Standards, Office of             29, II, 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
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II

[[Page 429]]

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 Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 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
Northeast Dairy Compact Commission                7, XIII
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 430]]

  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 431]]

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 433]]



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, and 1973-1985'' published in seven 
separate volumes.

                                  1986

12 CFR
                                                                   51 FR
                                                                    Page
Chapter II
201  Authority citation revised.............................11903, 16673
201.51  Revised...................................................11903,
                                                     16673, 26543, 30847
201.52  Revised...................................................11903,
                                                     16673, 26543, 30847
201.53  Removed....................................................11904
204  Authority citation revised....................................43176
204.2  Introductory text, (b) through (e), (f)(1) (i), (ii), and 
        (v) revised; (f)(3) added...................................9632
    (h)(1)(ii)(A) first footnote 1, (h)(2)(ii) second footnote 1, 
and (t)(1) footnote 2 redesignated as footnotes 10, 11, and 12; 
new (h)(2)(ii) footnote 11 revised..................................9635
204.3  (a)(3)(i) and (h) revised....................................9635
204.4  (a) amended; (b) and (c) removed; (d) through (g) 
        redesignated as (b) through (e); new (b), (c)(2)(ii), 
        (d)(2), and (e)(1) and (2) (i) and (iii) amended............9636
204.8  (a)(2)(i)(B)(5) and (3)(v) and (e) amended...................9636
204.9  (a) revised.................................................43176
205  Supplement II amended.........................................13485
207  OTC margin stock list.........................................3939,
                                                     15757, 27519, 39643
207.112  Added......................................................1781
210.2  Text amended; footnote 1 revised............................21744
210.3  (e) added...................................................21744
210.5  (a)(2), (b), and (c) revised................................21745
210.6  (a)(1) revised; (c) added; eff. in part 1-1-90..............21745
210.9  (a)(2) amended; eff. 1-1-87.................................21745
210.12  (c)(10) revised; (c)(11) added.............................21745
210.38  (b) revised and redesignated as (b)(1); (b)(2) added; eff. 
        in part 1-1-90.............................................21745
211.5  (c)(2) amended..............................................25359
217  Authority citation revised.....................................9637
217.0  Redesignated as 217.1 and revised............................9637
217.1  Redesignated as 217.2; new 217.1 redesignated from 217.0 
        and revised.................................................9637
217.2  Redesignated as 217.3; new 217.2 redesignated from 217.1.....9637
    Revised.........................................................9638
217.3  Removed; new 217.3 redesignated from 217.2...................9637
    Revised.........................................................9638
217.4  (d) temporarily suspended in part............................8478
    Removed.........................................................9637
    Added...........................................................9638
217.5  Removed......................................................9637
217.7  Removed......................................................9637

[[Page 434]]

                                  1987

12 CFR
                                                                   52 FR
                                                                    Page
Chapter II
201.51  Revised....................................................37436
201.52  Revised....................................................37436
202  Determination.................................................35537
202  Supplement I and Appendix B amended...........................10733
203  Exemption terminated..........................................10365
204  Authority citation revised..............................2215, 46451
204.2--204.4  Authority citations removed...........................2215
204.2  (a)(1)(v) and (vii)(C) amended..............................47694
    (c)(1)(iv)(E), footnote 4 amended..............................47695
204.9  Authority citation removed...................................2215
    (a) (1) and (2) revised........................................46451
204.122  (b) revised...............................................47694
204.123  Amended...................................................47695
204.124  (a) amended...............................................47695
204.125  Redesignated from 217.126 and revised.....................47695
204.126  Redesignated from 217.137 and revised.....................47695
204.127  Redesignated from 217.138 and revised.....................47695
204.128  Redesignated from 217.146 and revised.....................47696
204.129  Redesignated from 217.153 and revised.....................47696
204.130  Redesignated from 217.157 and revised.....................47696
204.131  Redesignated from 217.159 and revised.....................47697
205.14  (a)(2) and (b) revised.....................................30911
205  Supplement II amended.........................................10734
    Appendix A amended.............................................30912
206  Removed.......................................................49375
207  OTC margin stock list.........................................3218,
                                                     15941, 28538, 41963
208  Authority citation revised.......................2859, 42090, 49375
208.14  Added.......................................................2860
208.15  Added......................................................42090
    Addition comment time extended.................................46984
208.16  Added......................................................49376
211  Authority citation revised....................................30914
211.5  (f) added...................................................30914
217.101  Removed...................................................47698
217.103  Removed...................................................47698
217.105--217.112  Removed..........................................47698
217.113  Redesignated as 217.601...................................47698
217.114--217.121  Removed..........................................47698
217.124  Removed...................................................47698
217.126  Redesignated as 204.125 and revised.......................47695
217.131--217.133  Removed..........................................47698
217.134  Redesignated as 217.301 and revised.......................47698
217.135--217.136  Removed..........................................47698
217.137  Redesignated as 204.126 and revised.......................47695
217.138  Redesignated as 204.127 and revised.......................47695
217.139--217.141  Removed..........................................47698
217.144  Removed...................................................47698
217.146  Redesignated as 204.128 and revised.......................47696
217.147  Redesignated as 217.302 and revised.......................47698
217.148  Redesignated as 217.602...................................47698
217.150  Removed...................................................47698
217.151  Redesignated as 217.603...................................47698
217.152  Removed...................................................47698
217.153  Redesignated as 204.129 and revised.......................47696
217.155--217.156  Removed..........................................47698
217.157  Redesignated as 204.130 and revised.......................47696
217.158  Removed...................................................47698
217.159  Redesignated as 204.131 and revised.......................47697
217.160  Removed...................................................47698
217.161  Redesignated as 217.201 and revised.......................47699
217.201  Redesignated from 217.161 and revised.....................47699
217.301  Redesignated from 217.134 and revised.....................47698
217.302  Redesignated from 217.147 and revised.....................47698
217.601  Redesignated from 217.113.................................47698
217.602  Redesignated from 217.148.................................47698
217.603  Redesignated from 217.151.................................47698

                                  1988

12 CFR
                                                                   53 FR
                                                                    Page
Chapter II
201.51  Revised....................................................32603

[[Page 435]]

201.52  Revised....................................................32603
202  Determination..........................................26987, 45756
202  Supplement I amended..........................................11045
203  Revised.......................................................31687
    Data reporting.................................................47662
203  Appendix A revised............................................52657
204.9  (a) revised.................................................49116
204.132  Added.....................................................24931
205  Supplement II amended.........................................11046
205.6  (c) revised.................................................52653
206  Supplemental notice.............................................492
207  OTC margin stock list.........................................2999,
                                                     15195, 28189, 43679
    OTC margin stock list at 53 FR 15195 corrected.................17689
208  Authority citation revised; section authority citations 
        removed....................................................20811
208.15  (a)(1)(iv) and (2), (b)(1), (d)(3), (e)(4), (f)(1) and 
        (2)(vi) revised; (a)(4) added..............................20812
208.16  Supplemental notice..........................................492
210  Heading and authority citation revised........................21984
210.1--210.15 (Subpart A)  Heading revised.........................21984
210.1  Revised.....................................................21984
210.2  (e), (f), (g) undesignated flush text and (j) revised; (g) 
        footnote 2 removed; (k) and (l) redesignated as (l) and 
        (m); new (k) added; new (l) introductory text and 
        undesignated flush text revised............................21984
210.3  (b) revised.................................................21984
210.6  (a)(1) revised..............................................21984
210.7  (b) revised.................................................21985
210.9  (e) amended; footnote 3 redesignated as footnote 2..........21985
210.10  Revised....................................................21985
210.12  Revised....................................................21985
210.13  (a) revised................................................21986
211.5  (f) revised..................................................5363

                                  1989

12 CFR
                                                                   54 FR
                                                                    Page
Chapter II
201.51  Revised....................................................10270
201.52  Revised....................................................10271
202  Authority citation revised....................................50485
202.2  (g) revised.................................................50485
202.3  (d) removed; (e) redesignated as (d)........................50485
202.9  (a) (1) and (2) republished; (a)(3) added...................50485
202.12  (b)(1) introductory text and (2) through (4) revised; 
        (b)(5) added...............................................50486
202.14  (a)(1) amended.............................................53539
202  Appendix C amended............................................50486
    Appendix A amended.............................................53539
202  Supplement I amended...........................................9416
203  Revised; eff. 1-1-90..........................................51362
204.9  (a)(1) revised..............................................51012
205.13  (a)(1) amended.............................................53539
205  Supplement II amended..........................................9416
207  OTC margin stock list.........................................4254,
                                                     16357, 31647, 43952
208.10  (a)(3) amended; (a)(4) revised; (b)(2) and (3) amended......7183
208.13  Revised.....................................................4198
208.17  Added.......................................................6117
208.123  Removed....................................................7181
208.124  Added......................................................7181
    (b), (c)(8)(ii) and (d) footnote 1 corrected...................10482
208  Appendix A added...............................................4198
    Appendix A corrected...........................................12531
213  Appendix D amended............................................53539

                                  1990

12 CFR
                                                                   55 FR
                                                                    Page
Chapter II
202  Preemption determination......................................29565
    Supplement I amended...........................................12472
    Supplement I corrected.........................................14830
203  Order...................................................5444, 34218
203.4  (d)(4) corrected..............................................695
203  Appendix A corrected......................................695, 2481
204.2  (c)(1)(i) introductory text footnote 2 revised..............50541
204.3  (a)(3)(i)(A) and (B) amended; (a)(3)(i)(C) removed; (c)(2) 
        revised....................................................50541
204.9  (a)(1) revised..............................................49994
    Regulation at 55 FR 49994 withdrawn; (a) revised...............50541
    (a)(1) table corrected.........................................53100
205  Supplement II amended.........................................12635
207  OTC margin stock list.....................2631, 18591, 31367, 46040
208  Authority citation revised....................................27771
208.13  Revised....................................................32831
208.18  Added......................................................27771

[[Page 436]]

208.19  Added; (a) eff. 1-25-91....................................52986
208.125--208.127  Redesignated from 250.101--250.103...............52987
208  Appendix A amended............................................32831
    Appendix B added...............................................32831
210  Heading and authority citation revised........................40801
    Authority citation corrected...................................47428
210.25--210.32 (Subpart B)  Revised................................40801
210.25  (b)(3) corrected...........................................47428
210.26  (e) and (f) corrected......................................47428
210.29  (b) corrected..............................................47428
210.25--210.32 (Subpart B)  Appendix A corrected...................47428
    Appendix B corrected...........................................47428

                                  1991

12 CFR
                                                                   56 FR
                                                                    Page
Chapter II
201.51  Revised..........................1567, 6556, 22641, 48731, 58303
201.52  Revised..........................1567, 6556, 22641, 48731, 58303
202  Appendix A amended............................................51322
    Supplement I amended....................................14462, 16265
203  Order..........................................................5746
203.2  (c)(2) amended; (e)(2) revised..............................59857
203.4  (a) introductory text revised...............................59857
    (a) introductory text corrected................................66343
203.6  (a) revised.................................................59857
203  Appendix A revised............................................59857
204.2  (b)(3)(ii)(A), (c)(1)(i) footnote 1, (d)(2), (e)(2), and 
        (f)(2) revised; (e)(4) amended; (b)(3)(iv) removed; 
        (b)(3)(v) and (vi) redesignated as (b)(3)(iv) and (v)......15494
204.7  (a) revised.................................................15495
204.8  (a)(2)(i)(B)(5) footnote 14 revised.........................15495
204.9  (a)(1 and (2) revised.......................................60055
204.121--204.132  Undesignated center heading added................15495
204.125  Heading and introductory text revised; list amended.......15495
207  OTC margin stock list.....................3773, 19548, 35807, 55442
207.1  (b) redesignated as (b)(1); (b)(2) added....................46110
207.3  (l)(1)(i), (ii) and (3) revised.............................46111
207.13  Added......................................................46228
208.125  Regulation at 55 FR 52987 effective date corrected..........627
208.126  Regulation at 55 FR 52987 effective date corrected..........627
208.127  Regulation at 55 FR 52987 effective date corrected..........627
208.128  Added.....................................................63407
208  Appendix A amended............................................51156
211  Authority citation revised....................................19565
211.1--211.7 (Subpart A)  Revised..................................19565
    Regulation at 56 FR 19565 effective date corrected.............23010
211.21  Revised....................................................19574
    Regulation at 56 FR 19574 effective date corrected.............23010
211.22  (a)(2) and (5) revised.....................................19574
    Regulation at 56 FR 19574 effective date corrected.............23010
211.23  (d), (e), (f)(4), (5), (g) and (h) revised; (i) added......19574
    Regulation at 56 FR 19574 effective date corrected.............23010
211.31--211.34 (Subpart C)  Revised................................19575
    Regulation at 56 FR 19575 effective date corrected.............23010
211.603  Added.....................................................63408
213  Authority citation revised....................................51322
    Appendix D amended.............................................51322
    Authority citation corrected...................................65130
216  Revised.......................................................13071

                                  1992

12 CFR
                                                                   57 FR
                                                                    Page
Chapter II
201.51  Revised...............................................176, 34065
201.52  Revised...............................................176, 34065
202  Supplement I amended..........................................12203
    Appendix A amended.............................................20399
203.3  (a) and (c)(1) revised; eff. 1-1-93.........................56965
203  Appendix A amended............................................20400
    Amended; eff. 1-1-93....................................56965, 56967
204  Authority citation revised....................................56443

[[Page 437]]

204.2  (a)(1)(iii), (b)(1)(ii), (e)(6) and (i)(1)(iii)(B) revised; 
        (b)(3)(iii) amended; (b)(3)(iv) removed; (b)(3)(v) 
        redesignated as (b)(3)(iv); (u) added......................38427
    (a)(1)(vii)(C) amended.........................................40598
204.3  (c)(3) and (h) revised......................................38417
    (a) introductory text amended; (g) revised.....................38427
204.9  (a)(1) revised...............................................8060
    (a) revised....................................................56443
204.129  Removed...................................................40598
204.133  Added.....................................................38427
204.134  Added.....................................................38428
204.135  Added.....................................................38429
204.136  Added.....................................................38429
205  Appendix B added..............................................20400
206  Added.........................................................60106
207  OTC margin stock list.....................2997, 15220, 33101, 48939
208  Authority citation revised........43890, 44885, 60719, 62179, 62899
    Temporary exceptions...........................................54173
208.1--208.19  Designated as subpart A; undesignated center 
        heading removed............................................44885
208.18  Regulation at 55 FR 27771 compliance date revised..............6
208.30-208.35 (Subpart B)  Added...................................44885
208.51--208.52 (Subpart C)  Added; eff. 3-19-93....................62899
208.110  Removed...................................................21593
208.116--208.128  Designated as subpart E; undesignated center 
        heading removed............................................44888
208  Appendix A amended...............................2012, 60719, 62182
    Appendix A amended; interim.............................43890, 62179
    Appendix C added; eff. 3-19-93.................................62900
210.2  (d) revised; (g) concluding text amended; (n) and (o) 
        added; eff. 10-14-93.......................................46955
210.9  Heading and (a) revised; eff. 10-14-93......................46955
210.28  (b)(5) added; eff. 10-14-93................................46956
211.2  (t) revised; interim........................................12997
211.21  (b)(1) and (2) amended; (b)(3) through (b)(8) added; 
        interim....................................................12997
211.22  Redesignated as 211.23; new 211.22 added; interim..........12998
211.23  Redesignated as 211.24; new 211.23 redesignated from 
        211.22; (a) removed; (b) through (e) redesignated as (a) 
        through (d); interim.......................................12998
211.24  Redesignated from 211.23; (a) removed; (b) through (i) 
        redesignated as (a) through (h); interim...................12998
211.25  Added; interim.............................................12999
211.26  Added; interim.............................................13000
211.27  Added; interim.............................................13001
211.28  Added; interim.............................................13001
211.29  Added; interim.............................................13001
211.30  Heading added; interim.....................................13001
213  Appendix D amended............................................20400
215  Authority citation revised......................21205, 22423, 60979
215.1  (a) revised.................................................21205
    Regulation at 57 FR 21205 republished..........................22424
215.2  (e) through (l) redesignated as (g) through (n); new (e) 
        and (f) added; (a), (c), (d), new (h), (i), (l) and (m) 
        revised....................................................21205
    Regulation at 57 FR 21205 republished..........................22424
    (l) revised....................................................60979
215.3  (a)(4), (8), (b)(2) and (5) revised.........................21206
    Regulation at 57 FR 21206 republished..........................22425
215.4  (c) footnote 3 removed; (d) footnote 4 redesignated as 
        footnote 3.................................................21205
    (a)(1), (b)(1) and (c) revised; (b)(2), (3) and (d) 
redesignated as (b)(3), (4) and (e); new (b)(2) and new (d) added 
                                                                   21206
    Regulations at 57 FR 21205 and 21206 republished........22424, 22425
215.5  (a) footnote 5 redesignated as footnote 4...................21205
    (a) footnote 4 and (d) revised.................................21206
    Regulations at 57 FR 21205 and 21206 republished........22424, 22425
215.6  Redesignated as 215.7; new 215.6 added......................21207
    Regulation at 57 FR 21207 republished..........................22426
215.7  Redesignated as 215.8; new 215.7 redesignated from 215.6....21207

[[Page 438]]

    Regulation at 57 FR 21207 republished..........................22426
215.8  Footnote 6 redesignated as footnote 5.......................21205
    Redesignated as 215.9; new 215.8 redesignated from 215.7.......21207
    Regulations at 57 FR 21205 and 21207 republished........22424, 22426
215.9  Footnote 7 redesignated as footnote 6.......................21205
    Redesignated as 215.10; new 215.9 redesignated from 215.8......21207
    Regulations at 57 FR 21205 and 21207 republished........22424, 22426
215.10  (a) footnote 8 and (b) footnote 9 redesignated as (a) 
        footnote 7 and (b) footnote 8..............................21205
    Redesignated as 215.11; new 215.10 redesignated from 215.9.....21207
    Regulations at 57 FR 21205 and 21207 republished........22424, 22426
215.11  Redesignated as 215.13 and revised; new 215.11 
        redesignated from 215.10...................................21207
    Regulation at 57 FR 21207 republished..........................22426
215.12  Added......................................................21207
    Regulation at 57 FR 21207 republished..........................22426
215.13  Redesignated from 215.11 and revised.......................21207
    Regulation at 57 FR 21207 republished..........................22426
217  Heading and authority citation revised........................43336
217.1  (a) and (b) revised; eff. 3-21-93...........................43336
217.4  Removed; eff. 3-21-93.......................................43336
217.6  Removed; eff. 3-21-93.......................................43336
217.101  Redesignated from 217.302; eff. 3-21-93...................43336
217.201  Removed; eff. 3-21-93.....................................43336
217.301  Removed; eff. 3-21-93.....................................43336
217.302  Redesignated as 217.101; eff. 3-21-93.....................43336
217.601  Removed; eff. 3-21-93.....................................43336
217.602  Removed; eff. 3-21-93.....................................43336
217.603  Removed; eff. 3-21-93.....................................43336

                                  1993

12 CFR
                                                                   58 FR
                                                                    Page
Chapter II
201  Heading revised...............................................50512
    Authority citation revised.....................................68512
201.1  Revised; eff. 1-30-94.......................................68512
201.2  Revised; eff. 1-30-94.......................................68512
201.3  Revised; eff. 1-30-94.......................................68513
201.4  Revised; eff. 1-30-94.......................................68514
201.5  Revised; eff. 1-30-94.......................................68514
201.6  Revised; eff. 1-30-94.......................................68514
201.7  Added; eff. 1-30-94.........................................68514
201.8  Added; eff. 1-30-94.........................................68514
201.9  Added; eff. 1-30-94.........................................68514
201.108  Footnote 1 redesignated as Footnote 3; eff. 1-30-94.......68515
201.109  Footnotes 1a, 2 and 3 redesignated as Footnotes 4, 5 and 
        6; eff. 1-30-94............................................68515
202  Heading revised...............................................50512
    Technical correction...........................................68735
202.1  (b) amended.................................................65661
202.5a  Added......................................................65661
202.14  (b)(3) revised; (b)(4) and (5) added.......................65662
202  appendix C amended............................................65662
203  Exemption termination.............................................1
    MSA designations.........................................6601, 50513
    Heading revised................................................50512
203.5  Revised.....................................................13405
203  appendix A amended............................................13405
204  Heading revised...............................................50512
    Authority citation revised.....................................61802
204.9  (a) revised.................................................61802
    (a)(1) table corrected.........................................64112
205  Heading revised...............................................50512
206  Heading revised...............................................50512
207  OTC margin stock list.....................6602, 25543, 39640, 54929
    Heading revised................................................50512
208  Authority citation revised..............................7979, 47208
    Heading revised................................................50512
208.20  Added......................................................47208
208  Regulation at 57 FR 62179 confirmed...........................28492
    appendix C corrected............................................4460
    appendix A amended.......................................7979, 68738
    Appendixes A and B amended......................................7980
209  Heading revised...............................................50512
210  Heading revised...............................................50512
211  Authority citation revised....................................47209
    Heading revised................................................50512
211.2  (t) revised..................................................6358
211.8  Added.......................................................47209
211.20  Redesignated from 211.21; (b)(3) through (8) revised; 
        (b)(9) and (c) added........................................6358

[[Page 439]]

211.21  Redesignated as 211.20; new 211.21 redesignated from 
        211.22 and revised..........................................6358
211.22  Redesignated as 211.21......................................6358
    Redesignated from 211.23........................................6359
211.23  Redesignated as 211.22; new 211.23 redesignated from 
        211.24; (a) through (h) redesignated as (b) through (i); 
        new (a) added...............................................6359
211.24  Redesignated as 211.23; new 211.24 redesignated from 
        211.25 and revised..........................................6359
    (f) added......................................................47209
211.25  Redesignated as 211.24; new 211.25 redesignated from 
        211.26 and revised..........................................6359
211.26  Redesignated as 211.25; new 211.26 redesignated from 
        211.27 and revised..........................................6359
211.27  Redesignated as 211.26; new 211.27 redesignated from 
        211.28 and revised..........................................6359
211.28  Redesignated as 211.27; new 211.28 redesignated from 
        211.29 and revised..........................................6359
211.29  Redesignated as 211.28......................................6359
    Added...........................................................6362
211.31  (b)(4) amended.............................................46076
211.41  (b) amended................................................46076
211.42  (a) amended................................................46076
212  Heading revised...............................................50512
213  Heading revised...............................................50512
214  Heading revised...............................................50512
215  Authority citation revised.............................26508, 61804
    Heading revised................................................50512
215.4  (d)(3) added................................................26508
    (d)(2) introductory text amended; interim...............28494, 61804
216  Heading revised...............................................50512
217  Regulation at 57 FR 43336 eff. date delayed to 6-21-93........15076
    Heading revised................................................50512
217.1  Regulation at 57 FR 43336 eff. date delayed to 6-21-93......15076
217.4  Regulation at 57 FR 43336 eff. date delayed to 6-21-93......15076
217.6  Regulation at 57 FR 43336 eff. date delayed to 6-21-93......15076
217.101  Regulation at 57 FR 43336 eff. date delayed to 6-21-93....15076
217.201  Regulation at 57 FR 43336 eff. date delayed to 6-21-93....15076
217.301  Regulation at 57 FR 43336 eff. date delayed to 6-21-93....15076
217.302  Regulation at 57 FR 43336 eff. date delayed to 6-21-93....15076
217.601  Regulation at 57 FR 43336 eff. date delayed to 6-21-93....15076
217.602  Regulation at 57 FR 43336 eff. date delayed to 6-21-93....15076
217.603  Regulation at 57 FR 43336 eff. date delayed to 6-21-93....15076
218  Heading revised...............................................50512
219  Heading revised...............................................50512

                                  1994

12 CFR
                                                                   59 FR
                                                                    Page
Chapter II
201  Authority citation revised....................................29538
201.51  Revised......................................29538, 44313, 60700
201.52  Revised....................................................29538
    (b)  revised...................................................60700
203.2  (e)(1) introductory text, (2) and (f) revised...............63704
203.4  (a) introductory text amended; (a)(7) revised...............63704
203.5  (a) and (e) revised.........................................63704
203  appendix A amended.....................................63704, 63705
204.9  (a) revised.................................................60703
205  Authority citation revised....................................10683
205.9  (a)(4) revised; interim.....................................61788
205.15  Added......................................................10683
205  appendix A amended............................................10683
207  OTC margin stock lists....................4549, 23124, 37651, 54381
208  Authority citation revised......................55988, 62992, 63244
208.1--208.19 (Subpart  A) Footnotes 11, 12 and 13 redesignated as 
        9, 10 and 11...............................................55988
208.10  Heading revised; (a), (b) and (c) designation and heading 
        removed....................................................55988

[[Page 440]]

208.17  (a)(2) amended.............................................55988
208.21  Added; eff. 1-9-95.........................................63711
208.22  Added......................................................28761
208  Appendix A amended.....................................62992, 63244
    Appendix A amended; eff. 1-17-95...............................64563
    Appendix A amended; eff. 4-1-95................................65924
    Appendixes A amended and B revised; eff. 4-1-95................65925
210  Authority citation revised....................................22965
210.1  Amended.....................................................22965
210.2  (g) introductory text revised; (p) added....................22965
210.3  (a) amended; (f) added......................................22965
210.5  (a) introductory text and (2) revised; (b)(3) amended; (d) 
        added......................................................22965
210.6  (b) and (c) amended; (b)(1) and (2) revised.................22966
210.9  (a)(5) revised..............................................22966
210.12  (a) amended; (d) through (g) redesignated as (e) through 
        (h); new (d) and (i) added; (c) introductory text, (2), 
        new (e) concluding text and (h) revised....................22966
210.13  Revised....................................................22966
210.14  Revised....................................................22967
211  Authority citation revised....................................55028
211.21  (e) revised................................................55028
211.29  Added......................................................55028
215  Authority citation revised.....................................8837
215.1--215.13 (Subpart  A) Revised..................................8837
215.2  (c)(4) and (d) introductory text corrected..................37930
215.3  (b)(2) corrected............................................37930
215.4  (e)(1) introductory text and Footnote 3 corrected...........37930
215.5  (b) and (c)(4) corrected....................................37930
215.11  (b)(1) corrected...........................................37930
215.21  (a) amended; Footnote 10 removed; Footnotes 11 and 12 
        redesignated as Footnotes 5 and 6...........................8842
215.22  (c)(1)(ii) amended..........................................8842

                                  1995

12 CFR
                                                                   60 FR
                                                                    Page
Chapter II
201.51  Revised.....................................................9281
202  Supplement I amended............................29967, 29968, 29969
203.4  (e) added...................................................22225
203  appendix A amended............................................22225
    Supplement I added.............................................63396
204.9  (a) revised.................................................57913
205.9  Regulation at 59 FR 61788 confirmed; (a)(4) revised.........15033
207  OTC margin stock lists....................5845, 20005, 38948, 55184
208  Authority citation revised...............35288, 35682, 39229, 39493
208.8  (e)(4) added; eff. 1-2-96...................................35288
208.31  (f) revised; interim.......................................39229
208.60 (Subpart D)  Added..........................................35682
208.123  Added.....................................................17437
208  Appendix A amended........................8180, 39493, 46176, 46178
    Appendix D added........................................35678, 35682
    Appendix A amended; interim....................................39229
    Appendixes A and B amended; interim............................39230
    Appendixes A and B amended.....................................45615
    Appendix A amended; eff. 4-1-96................................66044
211  Authority citation revised....................................67054
211.2  (u) and (v) redesignated as (v) and (w); new (u) and (x) 
        added......................................................67054
211.5  (c)(2) and (3) redesignated as (c)(3) and (4); new (c)(2) 
        added; new (c)(3) amended..................................67054
215  Authority citation revised....................................31054
215.2  (i) introductory text amended; (i)(1) and (2) revised; 
        (i)(3) removed.............................................31054
215.5  (c)(2) introductory text revised............................17636
219  Heading and revised.............................................233
    Regulation at 60 FR 233 eff. date delayed to 4-1-96............44144
219.1--219.7  Designated as Subpart A; heading added.................233
    Regulation at 60 FR 233 eff. date delayed to 4-1-96............44144
219.1  Revised.......................................................233

[[Page 441]]

    Regulation at 60 FR 233 eff. date delayed to 4-1-96............44144
219.2  Introductory text revised.....................................233
    Regulation at 60 FR 233 eff. date delayed to 4-1-96............44144
219.21--219.24 (Subpart B)  Added....................................233
    Regulation at 60 FR 233 eff. date delayed to 4-1-96............44144

                                  1996

12 CFR
                                                                   61 FR
                                                                    Page
Chapter II
201.51  Revised.....................................................5926
202  Supplement I amended...................................50950, 50951
204.2  (f)(1)(iii) revised; (f)(1)(iv) and (3) removed; (f)(1)(v) 
        redesignated as (f)(1)(iv); (c)(1)(i) introductory text, 
        (iv)(C), (E), (d)(2), new (f)(1)(iv)(C), new (E), 
        (h)(1)(ii)(A), (2)(ii) and (t) amended; eff. 4-1-97........69025
204.3  (a)(3)(i), (ii) designation and (i)(5)(iv) removed; (f)(1) 
        revised; (h)(1), (2), (i)(1)(ii) and (4)(ii) amended; eff. 
        4-1-97.....................................................69025
204.4  Revised; eff. 4-1-97........................................69025
204.7  (a)(1) amended; eff. 4-1-97.................................69025
204.8  (a)(2)(i)(B)(5) and (3)(v) amended; eff. 4-1-97.............69025
204.9  (a) revised.................................................60173
    (b) removed; (a)(1) and (2) redesignated as (a) and (b); eff. 
4-1-97.............................................................69025
205.1  Revised.....................................................19669
205.2  Revised.....................................................19669
205.3  Revised.....................................................19669
205.4  Revised.....................................................19670
205.5  Revised.....................................................19670
205.6  Revised.....................................................19670
205.7  Revised.....................................................19671
205.8  Revised.....................................................19671
205.9  Revised.....................................................19671
205.10  Revised....................................................19672
205.11  Revised....................................................19673
205.12  Revised....................................................19674
205.13  Revised....................................................19674
205.14  Revised....................................................19674
205.15  Revised....................................................19675
205  Appendixes A and B revised; Appendix C added..................19676
    Supplement I revised...........................................19686
    Supplement II removed..........................................19695
207  OTC margin stock lists....................2667, 18495, 39556, 55555
    Authority citation revised.....................................60166
207.114  Added.....................................................60166
208  Authority citation revised.............................45704, 47369
208.8  (e) and Appendix A removed..................................45704
208.13  Revised....................................................47369
208.20  Revised.....................................................4343
208.23  Added......................................................45704
208  Appendix D amended............................................43951
    Appendix A amended; Appendix E added...........................47370
211.8  Amended......................................................4344
211.20  (b)(8) and (9) amended; (b)(10) added......................39053
211.22  (a) revised; (c) removed; (d) redesignated as (c)..........24440
211.24  (a)(2)(i) and (ii) revised; (d)(3) redesignated as (d)(4); 
        new (d)(3) added............................................2901
    (f) amended.....................................................4344
    (g) added......................................................39053
211.30  Added.......................................................6921
212  Revised.......................................................40302
213.1  Revised.....................................................52258
213.2  Revised.....................................................52258
213.3  Revised.....................................................52259
213.4  Revised.....................................................52259
213.5  Revised.....................................................52260
213.6  Removed.....................................................52258
213.7  Revised.....................................................52261
213.8  Revised.....................................................52261
213.9  Added.......................................................52261
213  Appendix D removed............................................52258
    Appendix A revised.............................................52262
    Appendixes B and C revised; Supplement I amended...............52269
215.2  (e)(2)(i) revised...........................................57770
    Regulation at 61 FR 57770 eff. date corrected to 11-8-96.......58782
215.4  (a) introductory text, (1) and (2) redesignated as (a)(1) 
        introductory text, (i) and (ii); new (a)(1) heading and 
        new (2) added..............................................57770
    Regulation at 61 FR 57770 eff. date corrected to 11-8-96.......58782
218  Removed.......................................................57289
218.101  Redesignated as 250.400...................................57289
218.102  Redesignated as 250.401...................................57289

[[Page 442]]

218.103  Redesignated as 250.402...................................57289
218.104  Redesignated as 250.403...................................57289
218.105  Redesignated as 250.404...................................57289
218.106  Redesignated as 250.405...................................57289
218.107  Redesignated as 250.406...................................57289
218.108  Redesignated as 250.407...................................57289
218.109  Redesignated as 250.408...................................57289
218.110  Redesignated as 250.409...................................57289
218.111  Redesignated as 250.410...................................57289
218.112  Redesignated as 250.411...................................57289
218.113  Redesignated as 250.412...................................57289
218.114  Removed...................................................57289
219  Regulation at 60 FR 233 eff. date delayed to 5-28-96..........14382
219.1--219.7 (Subpart A)  Regulation at 60 FR 233 eff. date 
        delayed to 5-28-96.........................................14382
219.1  Regulation at 60 FR 233 eff. date delayed to 5-28-96........14382
219.2  Regulation at 60 FR 233 eff. date delayed to 5-28-96........14382
    Revised........................................................29640
219.3  Revised.....................................................29640
219.4  Revised.....................................................29640
219.5  Revised.....................................................29641
219.6  Revised.....................................................29641
    (b) corrected..................................................32317
219.7  Removed.....................................................29641
219.21--219.24 (Subpart B)  Regulation at 60 FR 233 eff. date 
        delayed to 5-28-96.........................................14382
    Authority citation revised.....................................58975
219.21  Amended....................................................58975

                                  1997

12 CFR
                                                                   62 FR
                                                                    Page
Chapter II
202.12  (b)(6) added; eff. 1-30-98.................................66419
202.15  Added; eff. 1-30-98........................................66419
202  Supplement I added; eff. 1-30-98..............................66419
203.3  (a)(1)(ii) amended...........................................3603
    (a)(1)(ii) revised.............................................28623
203.5  (b) and (e) revised; (c) amended............................28623
203  Appendix A and Supplement I amended............................3604
    Appendix A amended......................................28623, 28624
    Supplement I amended....................................28626, 66260
    Appendix A correctly amended...................................33340
204.3  (b) revised.................................................34616
    (a), (b)(1), (2)(i) and (i) revised............................59778
204.9  Revised.....................................................61622
205  Authority citation revised....................................43469
205.15  (a) revised................................................43469
207  OTC margin stock lists....................3773, 22881, 40257, 55495
208  Authority citation revised.......................6452, 13285, 47735
208.8  (k) removed..................................................9911
208.24  Added.......................................................9911
208.25  Added......................................................13285
208.26  Added; interim..............................................6452
208.28  Added......................................................47735
208.129  Added.....................................................13285
    (b) corrected..................................................15601
208  Appendix E amended; interim............................68067, 68068
209.15  Added......................................................34616
210.2  (a) and (b) through (p), redesignated as (b) and (d) 
        through (r); new (a) and (c) added; new (d), new (g) 
        introductory text and (2) revised; eff. 1-2-98.............48171
210.3  (a) amended; eff. 1-2-98....................................48171
210.4  Revised; eff. 1-2-98........................................48171
210.5  (a)(1) and (c) revised; (d) amended; eff. 1-2-98............48171
210.6  (a)(1) and (b) revised; eff. 1-2-98.........................48172
210.7  (c) introductory text and (d) revised; eff. 1-2-98..........48172
210.8  Revised; eff. 1-2-98........................................48172
210.9  (a) through (e) redesignated as (b) through (f); new (a) 
        added; new (b) and new (c) revised; new (f) amended; eff. 
        1-2-98.....................................................48172
210.10  Revised; eff. 1-2-98.......................................48173
210.11  (b) amended; eff. 1-2-98...................................48173
210.12  (a), (b), (c)(1) (f) and (h) revised; (d), (g) and (i) 
        amended; eff. 1-2-98.......................................48173

[[Page 443]]

211  Authority citation revised.............................13286, 47736
211.22  (d) added..................................................47736
211.24  Heading revised; (h) added.................................13286
213  Compliance date delay..................................51006, 53733
213.1  (a) revised.................................................15367
213.2  (f) amended.................................................15367
213.4  (b), (f)(1), (n), (o)(1) heading and (2) heading revised; 
        (t) added..................................................15367
213.5  (d)(1) revised..............................................15367
213.7  (d)(1)(ii) and (2)(iv) removed; (d)(1)(iii), (2)(v) and 
        (vi) redesignated as (d)(1)(ii), (2)(iv) and (v); (b)(1), 
        (d)(1)(i), (2)(ii), (iii), new (iv) and new (v) revised....15367
213  Appendix A amended............................................15369
    Supplement I revised...........................................16058
215.2  (d) introductory text, (1), (2) and (3) redesignated as 
        (d)(1) introductory text, (i), (ii) and (iii); new (d)(2), 
        new (3) and (e)(3) added...................................13298
215.4  (a)(2) introductory text revised............................13298
217.101  (a)(1) amended; (b) added.................................26737