[Title 12 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2012 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 12

        Banks and Banking


________________________
 
           Parts 230 to 299

                         Revised as of January 1, 2012

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2012
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

          U.S. GOVERNMENT OFFICIAL EDITION NOTICE

          Legal Status and Use of Seals and Logos
          
          
          The seal of the National Archives and Records Administration 
              (NARA) authenticates the Code of Federal Regulations (CFR) as 
              the official codification of Federal regulations established 
              under the Federal Register Act. Under the provisions of 44 
              U.S.C. 1507, the contents of the CFR, a special edition of the 
              Federal Register, shall be judicially noticed. The CFR is 
              prima facie evidence of the original documents published in 
              the Federal Register (44 U.S.C. 1510).

          It is prohibited to use NARA's official seal and the stylized Code 
              of Federal Regulations logo on any republication of this 
              material without the express, written permission of the 
              Archivist of the United States or the Archivist's designee. 
              Any person using NARA's official seals and logos in a manner 
              inconsistent with the provisions of 36 CFR part 1200 is 
              subject to the penalties specified in 18 U.S.C. 506, 701, and 
              1017.

          Use of ISBN Prefix

          This is the Official U.S. Government edition of this publication 
              and is herein identified to certify its authenticity. Use of 
              the 0-16 ISBN prefix is for U.S. Government Printing Office 
              Official Editions only. The Superintendent of Documents of the 
              U.S. Government Printing Office requests that any reprinted 
              edition clearly be labeled as a copy of the authentic work 
              with a new ISBN.

              
              
          U . S . G O V E R N M E N T P R I N T I N G O F F I C E

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

          U.S. Superintendent of Documents  Washington, DC 
              20402-0001

          http://bookstore.gpo.gov

          Phone: toll-free (866) 512-1800; DC area (202) 512-1800

[[Page iii]]







As of January 1, 2012

Title 12, Parts 220 to 299,

Revised as of January 1, 2011

Is Replaced by

Title 12, Parts 220 to 229

and

Title 12, Parts 230 to 299



[[Page v]]





                            Table of Contents



                                                                    Page
  Explanation.................................................     vii

  Title 12:
          Chapter II--Federal Reserve System (Continued)             3
  Finding Aids:
      Table of CFR Titles and Chapters........................     409
      Alphabetical List of Agencies Appearing in the CFR......     429
      List of CFR Sections Affected...........................     439

[[Page vi]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  12 CFR 230.1 refers 
                       to title 12, part 230, 
                       section 1.

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

[[Page vii]]



                               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, 2012), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

OMB CONTROL NUMBERS

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

[[Page viii]]

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 
April 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
volumes. For the period beginning April 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

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 Authorities 
and Rules. A list of CFR titles, chapters, subchapters, 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.

[[Page ix]]

    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 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected].

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll-free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2104, 24 hours a day. For payment by check, 
write to: US Government Printing Office - New Orders, P.O. Box 979050, 
St. Louis, MO 63197-9000.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers of the Presidents of the United 
States, Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format via www.ofr.gov. For more 
information, contact the GPO Customer Contact Center, U.S. Government 
Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal-
register.

    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2012.







[[Page xi]]



                               THIS TITLE

    Title 12--Banks and Banking is composed of eight volumes. The parts 
in these volumes are arranged in the following order: Parts 1-199, 200-
219, 220-229, 230-299, 300-499, 500-599, part 600-899, and 900-end. The 
first volume containing parts 1-199 is comprised of chapter I--
Comptroller of the Currency, Department of the Treasury. The second, 
third and fourth volumes containing parts 200-299 are comprised of 
chapter II--Federal Reserve System. The fifth 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 
sixth volume containing parts 500-599 is comprised of chapter V--Office 
of Thrift Supervision, Department of the Treasury. The seventh volume 
containing parts 600-899 is comprised of chapter VI--Farm Credit 
Administration, chapter VII--National Credit Union Administration, 
chapter VIII--Federal Financing Bank. The eighth volume containing part 
900-end is comprised of chapter IX--Federal Housing Finance Board, 
chapter XI--Federal Financial Institutions Examination Council, chapter 
XIV--Farm Credit System Insurance Corporation, chapter XV--Department of 
the Treasury, 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, 2012.

    For this volume, Jonn Lilyea was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Michael L. 
White, assisted by Ann Worley.

[[Page 1]]



                       TITLE 12--BANKS AND BANKING




                  (This book contains parts 230 to 299)

  --------------------------------------------------------------------
                                                                    Part

chapter ii--Federal Reserve System (Continued)..............         230

[[Page 3]]



             CHAPTER II--FEDERAL RESERVE SYSTEM (CONTINUED)




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

     SUBCHAPTER A--BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
Part                                                                Page
230             Truth in savings (Regulation DD)............           5
231             Netting eligibility for financial 
                    institution (Regulation EE).............          43
232             Obtaining and using medical information in 
                    connection with credit (Regulation FF)..          44
233             Prohibition on funding of unlawful internet 
                    gambling (Regulation GG)................          50
235             Debit card interchange fees and routing.....          60
238             Savings and loan holding companies 
                    (Regulation LL).........................          77
239             Mutual holding companies (Regulation MM)....         122
243             Resolution plans............................         196
250             Miscellaneous interpretations...............         206
261             Rules regarding availability of information.         235
261a            Rules regarding access to personal 
                    information under the Privacy Act 1974..         253
261b            Rules regarding public observation of 
                    meetings................................         257
262             Rules of procedure..........................         262
263             Rules of practice for hearings..............         271
264             Employee responsibilities and conduct.......         318
264a            Post-employment restrictions for senior 
                    examiners...............................         318
264b            Rules regarding foreign gifts and 
                    decorations.............................         320
265             Rules regarding delegation of authority.....         323
266             Limitations on activities of former members 
                    and employees of the Board..............         341
267             Rules of organization and procedure of the 
                    Consumer Advisory Council...............         343
268             Rules regarding equal opportunity...........         345
269             Policy on labor relations for the Federal 
                    Reserve banks...........................         380
269a            Definitions.................................         385

[[Page 4]]

269b            Charges of unfair labor practices...........         385
               SUBCHAPTER B--FEDERAL OPEN MARKET COMMITTEE
270             Open market operations of Federal Reserve 
                    banks...................................         395
271             Rules regarding availability of information.         396
272             Rules of procedure..........................         403
281             Statements of policy........................         405
       SUBCHAPTER C--FEDERAL RESERVE SYSTEM LABOR RELATIONS PANEL
290-299         [Reserved]

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

[[Page 5]]



     SUBCHAPTER A_BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM 
                               (CONTINUED)





PART 230_TRUTH IN SAVINGS (REGULATION DD)--Table of Contents



Sec.
230.1 Authority, purpose, coverage, and effect on state laws.
230.2 Definitions.
230.3 General disclosure requirements.
230.4 Account disclosures.
230.5 Subsequent disclosures.
230.6 Periodic statement disclosures.
230.7 Payment of interest.
230.8 Advertising.
230.9 Enforcement and record retention.
230.10 [Reserved]
230.11 Additional disclosure requirements for overdraft services.

Appendix A to Part 230--Annual Percentage Yield Calculation
Appendix B to Part 230--Model Clauses and Sample Forms
Appendix C to Part 230--Effect on State Laws
Appendix D to Part 230--Issuance of Staff Interpretations
Supplement I to Part 230--Official Staff Interpretations

    Authority: 12 U.S.C. 4301 et seq.

    Source: 57 FR 43376, Sept. 21, 1992, unless otherwise noted.



Sec. 230.1  Authority, purpose, coverage, and effect on state laws.

    (a) Authority. This part, known as Regulation DD, is issued by the 
Board of Governors of the Federal Reserve System to implement the Truth 
in Savings Act of 1991 (the act), contained in the Federal Deposit 
Insurance Corporation Improvement Act of 1991 (12 U.S.C. 3201 et seq., 
Pub. L. 102-242, 105 Stat. 2236). Information-collection requirements 
contained in this part have been approved by the Office of Management 
and Budget under the provisions of 44 U.S.C. 3501 et seq. and have been 
assigned OMB No. 7100-0271.
    (b) Purpose. The purpose of this part is to enable consumers to make 
informed decisions about accounts at depository institutions. This part 
requires depository institutions to provide disclosures so that 
consumers can make meaningful comparisons among depository institutions.
    (c) Coverage. This part applies to depository institutions except 
for credit unions. In addition, the advertising rules in Sec. 230.8 of 
this part apply to any person who advertises an account offered by a 
depository institution, including deposit brokers.
    (d) Effect on state laws. State law requirements that are 
inconsistent with the requirements of the act and this part are 
preempted to the extent of the inconsistency. Additional information on 
inconsistent state laws and the procedures for requesting a preemption 
determination from the Board are set forth in appendix C of this part.

[57 FR 43376, Sept. 21, 1992, as amended at 74 FR 5593, Jan. 29, 2009]



Sec. 230.2  Definitions.

    For purposes of this part, the following definitions apply:
    (a) Account means a deposit account at a depository institution that 
is held by or offered to a consumer. It includes time, demand, savings, 
and negotiable order of withdrawal accounts. For purposes of the 
advertising requirements in Sec. 230.8 of this part, the term also 
includes an account at a depository institution that is held by or on 
behalf of a deposit broker, if any interest in the account is held by or 
offered to a consumer.
    (b) Advertisement means a commercial message, appearing in any 
medium, that promotes directly or indirectly:
    (1) The availability or terms of, or a deposit in, a new account; 
and
    (2) For purposes of Sec. 230.8(a) and Sec. 230.11 of this part, 
the terms of, or a deposit in, a new or existing account.
    (c) Annual percentage yield means a percentage rate reflecting the 
total amount of interest paid on an account, based on the interest rate 
and the frequency of compounding for a 365-day period and calculated 
according to the rules in appendix A of this part.
    (d) Average daily balance method means the application of a periodic 
rate to the average daily balance in the account for the period. The 
average daily balance is determined by adding

[[Page 6]]

the full amount of principal in the account for each day of the period 
and dividing that figure by the number of days in the period.
    (e) Board means the Board of Governors of the Federal Reserve 
System.
    (f) Bonus means a premium, gift, award, or other consideration worth 
more than $10 (whether in the form of cash, credit, merchandise, or any 
equivalent) given or offered to a consumer during a year in exchange for 
opening, maintaining, renewing, or increasing an account balance. The 
term does not include interest, other consideration worth $10 or less 
given during a year, the waiver or reduction of a fee, or the absorption 
of expenses.
    (g) Business day means a calendar day other than a Saturday, a 
Sunday, or any of the legal public holidays specified in 5 U.S.C. 
6103(a).
    (h) Consumer means a natural person who holds an account primarily 
for personal, family, or household purposes, or to whom such an account 
is offered. The term does not include a natural person who holds an 
account for another in a professional capacity.
    (i) Daily balance method means the application of a daily periodic 
rate to the full amount of principal in the account each day.
    (j) Depository institution and institution mean an institution 
defined in section 19(b)(1)(A)(i)-(vi) of the Federal Reserve Act (12 
U.S.C. 461), except credit unions defined in section 19(b)(1)(A)(iv).
    (k) Deposit broker means any person who is a deposit broker as 
defined in section 29(g) of the Federal Deposit Insurance Act (12 U.S.C. 
1831f(g)).
    (l) Fixed-rate account means an account for which the institution 
contracts to give at least 30 calendar days advance written notice of 
decreases in the interest rate.
    (m) Grace period means a period following the maturity of an 
automatically renewing time account during which the consumer may 
withdraw funds without being assessed a penalty.
    (n) Interest means any payment to a consumer or to an account for 
the use of funds in an account, calculated by application of a periodic 
rate to the balance. The term does not include the payment of a bonus or 
other consideration worth $10 or less given during a year, the waiver or 
reduction of a fee, or the absorption of expenses.
    (o) Interest rate means the annual rate of interest paid on an 
account which does not reflect compounding. For the purposes of the 
account disclosures in Sec. 230.4(b)(1)(i) of this part, the interest 
rate may, but need not, be referred to as the ``annual percentage rate'' 
in addition to being referred to as the ``interest rate.''
    (p) Passbook savings account means a savings account in which the 
consumer retains a book or other document in which the institution 
records transactions on the account.
    (q) Periodic statement means a statement setting forth information 
about an account (other than a time account or passbook savings account) 
that is provided to a consumer on a regular basis four or more times a 
year.
    (r) State means a state, the District of Columbia, the commonwealth 
of Puerto Rico, and any territory or possession of the United States.
    (s) Stepped-rate account means an account that has two or more 
interest rates that take effect in succeeding periods and are known when 
the account is opened.
    (t) Tiered-rate account means an account that has two or more 
interest rates that are applicable to specified balance levels.
    (u) Time account means an account with a maturity of at least seven 
days in which the consumer generally does not have a right to make 
withdrawals for six days after the account is opened, unless the deposit 
is subject to an early withdrawal penalty of at least seven days' 
interest on amounts withdrawn.
    (v) Variable-rate account means an account in which the interest 
rate may change after the account is opened, unless the institution 
contracts to give at least 30 calendar days advance written notice of 
rate decreases.

[57 FR 43376, Sept. 21, 1992, as amended at 58 FR 15081, Mar. 19, 1993; 
59 FR 52658, Oct. 19, 1994; 70 FR 29593, May 24, 2005]



Sec. 230.3  General disclosure requirements.

    (a) Form. Depository institutions shall make the disclosures 
required by

[[Page 7]]

Sec. Sec. 230.4 through 230.6 of this part, as applicable, clearly and 
conspicuously, in writing, and in a form the consumer may keep. The 
disclosures required by this part may be provided to the consumer in 
electronic form, subject to compliance with the consumer consent and 
other applicable provisions of the Electronic Signatures in Global and 
National Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.). The 
disclosures required by Sec. Sec. 230.4(a)(2) and 230.8 may be provided 
to the consumer in electronic form without regard to the consumer 
consent or other provisions of the E-Sign Act in the circumstances set 
forth in those sections. Disclosures for each account offered by an 
institution may be presented separately or combined with disclosures for 
the institution's other accounts, as long as it is clear which 
disclosures are applicable to the consumer's account.
    (b) General. The disclosures shall reflect the terms of the legal 
obligation of the account agreement between the consumer and the 
depository institution. Disclosures may be made in languages other than 
English, provided the disclosures are available in English upon request.
    (c) Relation to Regulation E (12 CFR part 205). Disclosures required 
by and provided in accordance with the Electronic Fund Transfer Act (15 
U.S.C. 1601) and its implementing Regulation E (12 CFR part 205) that 
are also required by this part may be substituted for the disclosures 
required by this part.
    (d) Multiple consumers. If an account is held by more than one 
consumer, disclosures may be made to any one of the consumers.
    (e) Oral response to inquiries. In an oral response to a consumer's 
inquiry about interest rates payable on its accounts, the depository 
institution shall state the annual percentage yield. The interest rate 
may be stated in addition to the annual percentage yield. No other rate 
may be stated.
    (f) Rounding and accuracy rules for rates and yields--(1) Rounding. 
The annual percentage yield, the annual percentage yield earned, and the 
interest rate shall be rounded to the nearest one-hundredth of one 
percentage point (.01%) and expressed to two decimal places. For account 
disclosures, the interest rate may be expressed to more than two decimal 
places.
    (2) Accuracy. The annual percentage yield (and the annual percentage 
yield earned) will be considered accurate if not more that one-twentieth 
of one percentage point (.05%) above or below the annual percentage 
yield (and the annual percentage yield earned) determined in accordance 
with the rules in appendix A of this part.

[57 FR 43376, Sept. 21, 1992, as amended by Reg. DD, 66 FR 17802, Apr. 
4, 2001; 72 FR 63483, Nov. 9, 2007]



Sec. 230.4  Account disclosures.

    (a) Delivery of account disclosures--(1) Account opening. (i) 
General. A depository institution shall provide account disclosures to a 
consumer before an account is opened or a service is provided, whichever 
is earlier. An institution is deemed to have provided a service when a 
fee required to be disclosed is assessed. Except as provided in 
paragraph (a)(1)(ii) of this section, if the consumer is not present at 
the institution when the account is opened or the service is provided 
and has not already received the disclosures, the institution shall mail 
or deliver the disclosures no later than 10 business days after the 
account is opened or the service is provided, whichever is earlier.
    (ii) Timing of electronic disclosures. If a consumer who is not 
present at the institution uses electronic means (for example, an 
Internet Web site) to open an account or request a service, the 
disclosures required under paragraph (a)(1) of this section must be 
provided before the account is opened or the service is provided.
    (2) Requests. (i) A depository institution shall provide account 
disclosures to a consumer upon request. If a consumer who is not present 
at the institution makes a request, the institution shall mail or 
deliver the disclosures within a reasonable time after it receives the 
request and may provide the disclosures in paper form, or electronically 
if the consumer agrees.
    (ii) In providing disclosures upon request, the institution may:
    (A) Specify an interest rate and annual percentage yield that were 
offered within the most recent seven calendar

[[Page 8]]

days; state that the rate and yield are accurate as of an identified 
date; and provide a telephone number consumers may call to obtain 
current rate information.
    (B) State the maturity of a time account as a term rather than a 
date.
    (b) Content of account disclosures. Account disclosures shall 
include the following, as applicable:
    (1) Rate information--(i) Annual percentage yield and interest rate. 
The ``annual percentage yield'' and the ``interest rate,'' using those 
terms, and for fixed-rate accounts the period of time the interest rate 
will be in effect.
    (ii) Variable rates. For variable-rate accounts:
    (A) The fact that the interest rate and annual percentage yield may 
change;
    (B) How the interest rate is determined;
    (C) The frequency with which the interest rate may change; and
    (D) Any limitation on the amount the interest rate may change.
    (2) Compounding and crediting--(i) Frequency. The frequency with 
which interest is compounded and credited.
    (ii) Effect of closing an account. If consumers will forfeit 
interest if they close the account before accrued interest is credited, 
a statement that interest will not be paid in such cases.
    (3) Balance information--(i) Minimum balance requirements. Any 
minimum balance required to:
    (A) Open the account;
    (B) Avoid the imposition of a fee; or
    (C) Obtain the annual percentage yield disclosed.

Except for the balance to open the account, the disclosure shall state 
how the balance is determined for these purposes.
    (ii) Balance computation method. An explanation of the balance 
computation method specified in Sec. 230.7 of this part used to 
calculate interest on the account.
    (iii) When interest begins to accrue. A statement of when interest 
begins to accrue on noncash deposits.
    (4) Fees. The amount of any fee that may be imposed in connection 
with the account (or an explanation of how the fee will be determined) 
and the conditions under which the fee may be imposed.
    (5) Transaction limitations. Any limitations on the number or dollar 
amount of withdrawals or deposits.
    (6) Features of time accounts. For time accounts:
    (i) Time requirements. The maturity date.
    (ii) Early withdrawal penalties. A statement that a penalty will or 
may be imposed for early withdrawal, how it is calculated, and the 
conditions for its assessment.
    (iii) Withdrawal of interest prior to maturity. If compounding 
occurs during the term and interest may be withdrawn prior to maturity, 
a statement that the annual percentage yield assumes interest remains on 
deposit until maturity and that a withdrawal will reduce earnings. For 
accounts with a stated maturity greater than one year that do not 
compound interest on an annual or more frequent basis, that require 
interest payouts at least annually, and that disclose an APY determined 
in accordance with section E of appendix A of this part, a statement 
that interest cannot remain on deposit and that payout of interest is 
mandatory.
    (iv) Renewal policies. A statement of whether or not the account 
will renew automatically at maturity. If it will, a statement of whether 
or not a grace period will be provided and, if so, the length of that 
period must be stated. If the account will not renew automatically, a 
statement of whether interest will be paid after maturity if the 
consumer does not renew the account must be stated.
    (7) Bonuses. The amount or type of any bonus, when the bonus will be 
provided, and any minimum balance and time requirements to obtain the 
bonus.
    (c) Notice to existing account holders--(1) Notice of availability 
of disclosures. Depository institutions shall provide a notice to 
consumers who receive periodic statements and who hold existing accounts 
of the type offered by the institution on June 21, 1993. The notice 
shall be included on or with the first periodic statement sent on or 
after June 21, 1993 (or on or with the first periodic statement for a 
statement cycle beginning on or after that date).

[[Page 9]]

The notice shall state that consumers may request account disclosures 
containing terms, fees, and rate information for their account. In 
responding to such a request, institutions shall provide disclosures in 
accordance with paragraph (a)(2) of this section.
    (2) Alternative to notice. As an alternative to the notice described 
in paragraph (c)(1) of this section, institutions may provide account 
disclosures to consumers. The disclosures may be provided either with a 
periodic statement or separately, but must be sent no later than when 
the periodic statement described in paragraph (c)(1) is sent.

[57 FR 43376, Sept. 21, 1992, as amended at 58 FR 15081, Mar. 19, 1993; 
Reg. DD, 60 FR 5130, Jan. 26, 1995; 63 FR 40637, July 30, 1998; 66 FR 
17802, Apr. 4, 2001; 72 FR 63483, Nov. 9, 2007]



Sec. 230.5  Subsequent disclosures.

    (a) Change in terms--(1) Advance notice required. A depository 
institution shall give advance notice to affected consumers of any 
change in a term required to be disclosed under Sec. 230.4(b) of this 
part if the change may reduce the annual percentage yield or adversely 
affect the consumer. The notice shall include the effective date of the 
change. The notice shall be mailed or delivered at least 30 calendar 
days before the effective date of the change.
    (2) No notice required. No notice under this section is required 
for:
    (i) Variable-rate changes. Changes in the interest rate and 
corresponding changes in the annual percentage yield in variable-rate 
accounts.
    (ii) Check printing fees. Changes in fees assessed for check 
printing.
    (iii) Short-term time accounts. Changes in any term for time 
accounts with maturities of one month or less.
    (b) Notice before maturity for time accounts longer than one month 
that renew automatically. For time accounts with a maturity longer than 
one month that renew automatically at maturity, institutions shall 
provide the disclosures described below before maturity. The disclosures 
shall be mailed or delivered at least 30 calendar days before maturity 
of the existing account. Alternatively, the disclosures may be mailed or 
delivered at least 20 calendar days before the end of the grace period 
on the existing account, provided a grace period of at least five 
calendar days is allowed.
    (1) Maturities of longer than one year. If the maturity is longer 
than one year, the institution shall provide account disclosures set 
forth in Sec. 230.4(b) of this part for the new account, along with the 
date the existing account matures. If the interest rate and annual 
percentage yield that will be paid for the new account are unknown when 
disclosures are provided, the institution shall state that those rates 
have not yet been determined, the date when they will be determined, and 
a telephone number consumers may call to obtain the interest rate and 
the annual percentage yield that will be paid for the new account.
    (2) Maturities of one year or less but longer than one month. If the 
maturity is one year or less but longer than one month, the institution 
shall either:
    (i) Provide disclosures as set forth in paragraph (b)(1) of this 
section; or
    (ii) Disclose to the consumer:
    (A) The date the existing account matures and the new maturity date 
if the account is renewed;
    (B) The interest rate and the annual percentage yield for the new 
account if they are known (or that those rates have not yet been 
determined, the date when they will be determined, and a telephone 
number the consumer may call to obtain the interest rate and the annual 
percentage yield that will be paid for the new account); and
    (C) Any difference in the terms of the new account as compared to 
the terms required to be disclosed under Sec. 230.4(b) of this part for 
the existing account.
    (c) Notice before maturity for time accounts longer than one year 
that do not renew automatically. For time accounts with a maturity 
longer than one year that do not renew automatically at maturity, 
institutions shall disclose to consumers the maturity date and whether 
interest will be paid after maturity. The disclosures shall be mailed or 
delivered at least 10 calendar days before maturity of the existing 
account.

[57 FR 43376, Sept. 21, 1992, as amended at 58 FR 15081, Mar. 19, 1993; 
Reg. DD, 63 FR 52107, Sept. 29, 1998]

[[Page 10]]



Sec. 230.6  Periodic statement disclosures.

    (a) General rule. If a depository institution mails or delivers a 
periodic statement, the statement shall include the following 
disclosures:
    (1) Annual percentage yield earned. The ``annual percentage yield 
earned'' during the statement period, using that term, calculated 
according to the rules in appendix A of this part.
    (2) Amount of interest. The dollar amount of interest earned during 
the statement period.
    (3) Fees imposed. Fees required to be disclosed under Sec. 
230.4(b)(4) of this part that were debited to the account during the 
statement period. The fees shall be itemized by type and dollar amounts. 
Except as provided in Sec. 230.11(a)(1) of this part, when fees of the 
same type are imposed more than once in a statement period, a depository 
institution may itemize each fee separately or group the fees together 
and disclose a total dollar amount for all fees of that type.
    (4) Length of period. The total number of days in the statement 
period, or the beginning and ending dates of the period.
    (5) Aggregate fee disclosure. If applicable, the total overdraft and 
returned item fees required to be disclosed by Sec. 230.11(a).
    (b) Special rule for average daily balance method. In making the 
disclosures described in paragraph (a) of this section, institutions 
that use the average daily balance method and that calculate interest 
for a period other than the statement period shall calculate and 
disclose the annual percentage yield earned and amount of interest 
earned based on that period rather than the statement period. The 
information in paragraph (a)(4) of this section shall be stated for that 
period as well as for the statement period.

[Reg. DD 57 FR 43376, Sept. 21, 1992, as amended at 57 FR 46480, Oct. 9, 
1992; 64 FR 49848, Sept. 14, 1999; 66 FR 17802, Apr. 4, 2001; 70 FR 
29593, May 24, 2005; 75 FR 31676, June 4, 2010]



Sec. 230.7  Payment of interest.

    (a) Permissible methods--(1) Balance on which interest is 
calculated. Institutions shall calculate interest on the full amount of 
principal in an account for each day by use of either the daily balance 
method or the average daily balance method. \1\
---------------------------------------------------------------------------

    \1\ Institutions shall calculate interest by use of a daily rate of 
at least \1/365\ of the interest rate. In a leap year a daily rate of 
\1/366\ of the interest rate may be used.
---------------------------------------------------------------------------

    (2) Determination of minimum balance to earn interest. An 
institution shall use the same method to determine any minimum balance 
required to earn interest as it uses to determine the balance on which 
interest is calculated. An institution may use an additional method that 
is unequivocally beneficial to the consumer.
    (b) Compounding and crediting policies. This section does not 
require institutions to compound or credit interest at any particular 
frequency.
    (c) Date interest begins to accrue. Interest shall begin to accrue 
not later than the business day specified for interest-bearing accounts 
in section 606 of the Expedited Funds Availability Act (12 U.S.C. 4005 
et seq.) and implementing Regulation CC (12 CFR part 229). Interest 
shall accrue until the day funds are withdrawn.



Sec. 230.8  Advertising.

    (a) Misleading or inaccurate advertisements. An advertisement shall 
not:
    (1) Be misleading or inaccurate or misrepresent a depository 
institution's deposit contract; or
    (2) Refer to or describe an account as ``free'' or ``no cost'' (or 
contain a similar term) if any maintenance or activity fee may be 
imposed on the account. The word ``profit'' shall not be used in 
referring to interest paid on an account.
    (b) Permissible rates. If an advertisement states a rate of return, 
it shall state the rate as an ``annual percentage yield'' using that 
term. (The abbreviation ``APY'' may be used provided the term ``annual 
percentage yield'' is stated at least once in the advertisement.) The 
advertisement shall not state any other rate, except that the ``interest 
rate,'' using that term, may be stated in conjunction with, but not more 
conspicuously than, the annual percentage yield to which it relates.
    (c) When additional disclosures are required. Except as provided in 
paragraph

[[Page 11]]

(e) of this section, if the annual percentage yield is stated in an 
advertisement, the advertisement shall state the following information, 
to the extent applicable, clearly and conspicuously:
    (1) Variable rates. For variable-rate accounts, a statement that the 
rate may change after the account is opened.
    (2) Time annual percentage yield is offered. The period of time the 
annual percentage yield will be offered, or a statement that the annual 
percentage yield is accurate as of a specified date.
    (3) Minimum balance. The minimum balance required to obtain the 
advertised annual percentage yield. For tiered-rate accounts, the 
minimum balance required for each tier shall be stated in close 
proximity and with equal prominence to the applicable annual percentage 
yield.
    (4) Minimum opening deposit. The minimum deposit required to open 
the account, if it is greater than the minimum balance necessary to 
obtain the advertised annual percentage yield.
    (5) Effect of fees. A statement that fees could reduce the earnings 
on the account.
    (6) Features of time accounts. For time accounts:
    (i) Time requirements. The term of the account.
    (ii) Early withdrawal penalties: A statement that a penalty will or 
may be imposed for early withdrawal.
    (iii) Required interest payouts. For noncompounding time accounts 
with a stated maturity greater than one year that do not compound 
interest on an annual or more frequent basis, that require interest 
payouts at least annually, and that disclose an APY determined in 
accordance with section E of appendix A of this part, a statement that 
interest cannot remain on deposit and that payout of interest is 
mandatory.
    (d) Bonuses. Except as provided in paragraph (e) of this section, if 
a bonus is stated in an advertisement, the advertisement shall state the 
following information, to the extent applicable, clearly and 
conspicuously:
    (1) The ``annual percentage yield,'' using that term;
    (2) The time requirement to obtain the bonus;
    (3) The minimum balance required to obtain the bonus;
    (4) The minimum balance required to open the account, if it is 
greater than the minimum balance necessary to obtain the bonus; and
    (5) When the bonus will be provided.
    (e) Exemption for certain advertisements--(1) Certain media. If an 
advertisement is made through one of the following media, it need not 
contain the information in paragraphs (c)(1), (c)(2), (c)(4), (c)(5), 
(c)(6)(ii), (d)(4), and (d)(5) of this section:
    (i) Broadcast or electronic media, such as television or radio;
    (ii) Outdoor media, such as billboards; or
    (iii) Telephone response machines.
    (2) Indoor signs. (i) Signs inside the premises of a depository 
institution (or the premises of a deposit broker) are not subject to 
paragraphs (b), (c), (d) or (e)(1) of this section.
    (ii) If a sign exempt by paragraph (e)(2) of this section states a 
rate of return, it shall:
    (A) State the rate as an ``annual percentage yield,'' using that 
term or the term ``APY.'' The sign shall not state any other rate, 
except that the interest rate may be stated in conjunction with the 
annual percentage yield to which it relates.
    (B) Contain a statement advising consumers to contact an employee 
for further information about applicable fees and terms.
    (f) Additional disclosures in connection with the payment of 
overdrafts. Institutions that promote the payment of overdrafts in an 
advertisement shall include in the advertisement the disclosures 
required by Sec. 230.11(b) of this part.

[57 FR 43376, Sept. 21, 1992, as amended at 58 FR 15081, Mar. 19, 1993; 
Reg. DD, 60 FR 5130, Jan. 26, 1995; Reg. DD, 63 FR 40638, July 30, 1998; 
Reg. DD, 63 FR 52107, Sept. 29, 1998; 70 FR 29593, May 24, 2005]



Sec. 230.9  Enforcement and record retention.

    (a) Administrative enforcement. Section 270 of the act contains the 
provisions relating to administrative sanctions

[[Page 12]]

for failure to comply with the requirements of the act and this part. 
Compliance is enforced by the agencies listed in that section.
    (b) Civil liability. Section 271 of the Act contains the provisions 
relating to civil liability for failure to comply with the requirements 
of the act and this part; Section 271 is repealed effective September 
30, 2001.
    (c) Record retention. A depository institution shall retain evidence 
of compliance with this part for a minimum of two years after the date 
disclosures are required to be made or action is required to be taken. 
The administrative agencies responsible for enforcing this part may 
require depository institutions under their jurisdiction to retain 
records for a longer period if necessary to carry out their enforcement 
responsibilities under section 270 of the act.

[57 FR 43376, Sept. 21, 1992, as amended by Reg. DD, 63 FR 52107, Sept. 
29, 1998]



Sec. 230.10  [Reserved]



Sec. 230.11  Additional disclosure requirements for overdraft services.

    (a) Disclosure of total fees on periodic statements--(1) General. A 
depository institution must separately disclose on each periodic 
statement, as applicable:
    (i) The total dollar amount for all fees or charges imposed on the 
account for paying checks or other items when there are insufficient or 
unavailable funds and the account becomes overdrawn, using the term 
``Total Overdraft Fees''; and
    (ii) The total dollar amount for all fees or charges imposed on the 
account for returning items unpaid.
    (2) Totals required. The disclosures required by paragraph (a)(1) of 
this section must be provided for the statement period and for the 
calendar year-to-date;
    (3) Format requirements. The aggregate fee disclosures required by 
paragraph (a) of this section must be disclosed in close proximity to 
fees identified under Sec. 230.6(a)(3), using a format substantially 
similar to Sample Form B-10 in Appendix B to this part.
    (b) Advertising disclosures for overdraft services--(1) Disclosures. 
Except as provided in paragraphs (b)(2),(b)(3), and (b)(4) of this 
section, any advertisement promoting the payment of overdrafts shall 
disclose in a clear and conspicuous manner:
    (i) The fee or fees for the payment of each overdraft;
    (ii) The categories of transactions for which a fee for paying an 
overdraft may be imposed;
    (iii) The time period by which the consumer must repay or cover any 
overdraft; and
    (iv) The circumstances under which the institution will not pay an 
overdraft.
    (2) Communications about the payment of overdrafts not subject to 
additional advertising disclosures. Paragraph (b)(1) of this section 
does not apply to:
    (i) An advertisement promoting a service where the institution's 
payment of overdrafts will be agreed upon in writing and subject to the 
Board's Regulation Z (12 CFR part 226);
    (ii) A communication by an institution about the payment of 
overdrafts in response to a consumer-initiated inquiry about deposit 
accounts or overdrafts. Providing information about the payment of 
overdrafts in response to a balance inquiry made through an automated 
system, such as a telephone response machine, ATM, or an institution's 
Internet site, is not a response to a consumer-initiated inquiry for 
purposes of this paragraph;
    (iii) An advertisement made through broadcast or electronic media, 
such as television or radio;
    (iv) An advertisement made on outdoor media, such as billboards;
    (v) An ATM receipt;
    (vi) An in-person discussion with a consumer;
    (vii) Disclosures required by federal or other applicable law;
    (viii) Information included on a periodic statement or a notice 
informing a consumer about a specific overdrawn item or the amount the 
account is overdrawn;
    (ix) A term in a deposit account agreement discussing the 
institution's right to pay overdrafts;
    (x) A notice provided to a consumer, such as at an ATM, that 
completing a requested transaction may trigger a fee for overdrawing an 
account, or a general notice that items overdrawing an account may 
trigger a fee;

[[Page 13]]

    (xi) Informational or educational materials concerning the payment 
of overdrafts if the materials do not specifically describe the 
institution's overdraft service; or
    (xii) An opt-out or opt-in notice regarding the institution's 
payment of overdrafts or provision of discretionary overdraft services.
    (3) Exception for ATM screens and telephone response machines. The 
disclosures described in paragraphs (b)(1)(ii) and (b)(1)(iv) of this 
section are not required in connection with any advertisement made on an 
ATM screen or using a telephone response machine.
    (4) Exception for indoor signs. Paragraph (b)(1) of this section 
does not apply to advertisements for the payment of overdrafts on indoor 
signs as described by Sec. 230.8(e)(2) of this part, provided that the 
sign contains a clear and conspicuous statement that fees may apply and 
that consumers should contact an employee for further information about 
applicable fees and terms. For purposes of this paragraph (b)(4), an 
indoor sign does not include an ATM screen.
    (c) Disclosure of account balances. If an institution discloses 
balance information to a consumer through an automated system, the 
balance may not include additional amounts that the institution may 
provide to cover an item when there are insufficient or unavailable 
funds in the consumer's account, whether under a service provided in its 
discretion, a service subject to the Board's Regulation Z (12 CFR part 
226), or a service to transfer funds from another account of the 
consumer. The institution may, at its option, disclose additional 
account balances that include such additional amounts, if the 
institution prominently states that any such balance includes such 
additional amounts and, if applicable, that additional amounts are not 
available for all transactions.

[70 FR 29593, May 24, 2005, as amended at 74 FR 5593, Jan. 29, 2009; 75 
FR 31676, June 4, 2010]



    Sec. Appendix A to Part 230--Annual Percentage Yield Calculation

    The annual percentage yield measures the total amount of interest 
paid on an account based on the interest rate and the frequency of 
compounding. \1\ The annual percentage yield is expressed as an 
annualized rate, based on a 365-day year. \2\ Part I of this appendix 
discusses the annual percentage yield calculations for account 
disclosures and advertisements, while Part II discusses annual 
percentage yield earned calculations for periodic statements.
---------------------------------------------------------------------------

    \1\ The annual percentage yield reflects only interest and does not 
include the value of any bonus (or other consideration worth $10 or 
less) that may be provided to the consumer to open, maintain, increase 
or renew an account. Interest or other earnings are not to be included 
in the annual percentage yield if such amounts are determined by 
circumstances that may or may not occur in the future.
    \2\ Institutions may calculate the annual percentage yield based on 
a 365-day or a 366-day year in a leap year.
---------------------------------------------------------------------------

Part I. Annual Percentage Yield for Account Disclosures and Advertising 
                                Purposes

    In general, the annual percentage yield for account disclosures 
under Sec. Sec. 230.4 and 230.5 and for advertising under Sec. 230.8 
is an annualized rate that reflects the relationship between the amount 
of interest that would be earned by the consumer for the term of the 
account and the amount of principal used to calculate that interest. 
Special rules apply to accounts with tiered and stepped interest rates, 
and to certain time accounts with a stated maturity greater than one 
year.

                            A. General Rules

    Except as provided in Part I.E. of this appendix, the annual 
percentage yield shall be calculated by the formula shown below. 
Institutions shall calculate the annual percentage yield based on the 
actual number of days in the term of the account. For accounts without a 
stated maturity date (such as a typical savings or transaction account), 
the calculation shall be based on an assumed term of 365 days. In 
determining the total interest figure to be used in the formula, 
institutions shall assume that all principal and interest remain on 
deposit for the entire term and that no other transactions (deposits or 
withdrawals) occur during the term. \3\ For time accounts that are 
offered in multiples of months, institutions may base the number of days 
on either the actual number of days during the applicable period, or the 
number of days that would occur for any actual sequence of that many 
calendar months.

[[Page 14]]

If institutions choose to use the latter rule, they must use the same 
number of days to calculate the dollar amount of interest earned on the 
account that is used in the annual percentage yield formula (where 
``Interest'' is divided by ``Principal'').
---------------------------------------------------------------------------

    \3\ This assumption shall not be used if an institution requires, as 
a condition of the account, that consumers withdraw interest during the 
term. In such a case, the interest (and annual percentage yield 
calculation) shall reflect that requirement.
---------------------------------------------------------------------------

    The annual percentage yield is calculated by use of the following 
general formula (``APY'' is used for convenience in the formulas):

APY=100 [(1+Interest/Principal)(365/Days in term)-1]

    ``Principal'' is the amount of funds assumed to have been deposited 
at the beginning of the account.
    ``Interest'' is the total dollar amount of interest earned on the 
Principal for the term of the account.
    ``Days in term'' is the actual number of days in the term of the 
account. When the ``days in term'' is 365 (that is, where the stated 
maturity is 365 days or where the account does not have a stated 
maturity), the annual percentage yield can be calculated by use of the 
following simple formula:

APY=100 (Interest/Principal)

                                Examples

    (1) If an institution pays $61.68 in interest for a 365-day year on 
$1,000 deposited into a NOW account, using the general formula above, 
the annual percentage yield is 6.17%:

APY=100[(1+61.68/1,000) (365/365) -1]
APY=6.17%
    Or, using the simple formula above (since, as an account without a 
stated term, the term is deemed to be 365 days):

APY=100(61.68/1,000)
APY=6.17%
    (2) If an institution pays $30.37 in interest on a $1,000 six-month 
certificate of deposit (where the six-month period used by the 
institution contains 182 days), using the general formula above, the 
annual percentage yield is 6.18%:

APY=100[(1+30.37/1,000) (365/182) -1]
APY=6.18%

 B. Stepped-Rate Accounts (Different Rates Apply in Succeeding Periods)

    For accounts with two or more interest rates applied in succeeding 
periods (where the rates are known at the time the account is opened), 
an institution shall assume each interest rate is in effect for the 
length of time provided for in the deposit contract.

                                Examples

    (1) If an institution offers a $1,000 6-month certificate of deposit 
on which it pays a 5% interest rate, compounded daily, for the first 
three months (which contain 91 days), and a 5.5% interest rate, 
compounded daily, for the next three months (which contain 92 days), the 
total interest for six months is $26.68 and, using the general formula 
above, the annual percentage yield is 5.39%:

APY=100[(1+26.68/1,000) (365/183) -1]
APY=5.39%
    (2) If an institution offers a $1,000 two-year certificate of 
deposit on which it pays a 6% interest rate, compounded daily, for the 
first year, and a 6.5% interest rate, compounded daily, for the next 
year, the total interest for two years is $133.13, and, using the 
general formula above, the annual percentage yield is 6.45%:

APY=100[(1+133.13/1,000) (365/730) -1]
APY=6.45%

                        C. Variable-Rate Accounts

    For variable-rate accounts without an introductory premium or 
discounted rate, an institution must base the calculation only on the 
initial interest rate in effect when the account is opened (or 
advertised), and assume that this rate will not change during the year.
    Variable-rate accounts with an introductory premium (or discount) 
rate must be calculated like a stepped-rate account. Thus, an 
institution shall assume that: (1) The introductory interest rate is in 
effect for the length of time provided for in the deposit contract; and 
(2) the variable interest rate that would have been in effect when the 
account is opened or advertised (but for the introductory rate) is in 
effect for the remainder of the year. If the variable rate is tied to an 
index, the index-based rate in effect at the time of disclosure must be 
used for the remainder of the year. If the rate is not tied to an index, 
the rate in effect for existing consumers holding the same account (who 
are not receiving the introductory interest rate) must be used for the 
remainder of the year.
    For example, if an institution offers an account on which it pays a 
7% interest rate, compounded daily, for the first three months (which, 
for example, contain 91 days), while the variable interest rate that 
would have been in effect when the account was opened was 5%, the total 
interest for a 365-day year for a $1,000 deposit is $56.52 (based on 91 
days at 7% followed by 274 days at 5%). Using the simple formula, the 
annual percentage yield is 5.65%:

APY=100(56.52/1,000)
APY=5.65%

  D. Tiered-Rate Accounts (Different Rates Apply to Specified Balance 
                                 Levels)

    For accounts in which two or more interest rates paid on the account 
are applicable to specified balance levels, the institution must 
calculate the annual percentage yield in accordance with the method 
described below that it uses to calculate interest. In all cases, an 
annual percentage yield (or a

[[Page 15]]

range of annual percentage yields, if appropriate) must be disclosed for 
each balance tier.
    For purposes of the examples discussed below, assume the following:

------------------------------------------------------------------------
 Interest
   rate                Deposit balance required to earn rate
(percent)
------------------------------------------------------------------------
     5.25  Up to but not exceeding $2,500.
     5.50  Above $2,500 but not exceeding $15,000.
     5.75  Above $15,000.
------------------------------------------------------------------------

    Tiering Method A. Under this method, an institution pays on the full 
balance in the account the stated interest rate that corresponds to the 
applicable deposit tier. For example, if a consumer deposits $8,000, the 
institution pays the 5.50% interest rate on the entire $8,000.
    When this method is used to determine interest, only one annual 
percentage yield will apply to each tier. Within each tier, the annual 
percentage yield will not vary with the amount of principal assumed to 
have been deposited.
    For the interest rates and deposit balances assumed above, the 
institution will state three annual percentage yields--one corresponding 
to each balance tier. Calculation of each annual percentage yield is 
similar for this type of account as for accounts with a single interest 
rate. Thus, the calculation is based on the total amount of interest 
that would be received by the consumer for each tier of the account for 
a year and the principal assumed to have been deposited to earn that 
amount of interest.
    First tier. Assuming daily compounding, the institution will pay 
$53.90 in interest on a $1,000 deposit. Using the general formula, for 
the first tier, the annual percentage yield is 5.39%:

APY=100[(1+53.90/1,000) (365/365) -1]
APY=5.39%
    Using the simple formula:

APY=100(53.90/1,000)
APY=5.39%
    Second tier. The institution will pay $452.29 in interest on an 
$8,000 deposit. Thus, using the simple formula, the annual percentage 
yield for the second tier is 5.65%:

APY=100(452.29/8,000)
APY=5.65%
    Third tier. The institution will pay $1,183.61 in interest on a 
$20,000 deposit. Thus, using the simple formula, the annual percentage 
yield for the third tier is 5.92%:

APY=100(1,183.61/20,000)
APY=5.92%
    Tiering Method B. Under this method, an institution pays the stated 
interest rate only on that portion of the balance within the specified 
tier. For example, if a consumer deposits $8,000, the institution pays 
5.25% on $2,500 and 5.50% on $5,500 (the difference between $8,000 and 
the first tier cut-off of $2,500).
    The institution that computes interest in this manner must provide a 
range that shows the lowest and the highest annual percentage yields for 
each tier (other than for the first tier, which, like the tiers in 
Method A, has the same annual percentage yield throughout). The low 
figure for an annual percentage yield range is calculated based on the 
total amount of interest earned for a year assuming the minimum 
principal required to earn the interest rate for that tier. The high 
figure for an annual percentage yield range is based on the amount of 
interest the institution would pay on the highest principal that could 
be deposited to earn that same interest rate. If the account does not 
have a limit on the maximum amount that can be deposited, the 
institution may assume any amount.
    For the tiering structure assumed above, the institution would state 
a total of five annual percentage yields--one figure for the first tier 
and two figures stated as a range for the other two tiers.
    First tier. Assuming daily compounding, the institution would pay 
$53.90 in interest on a $1,000 deposit. For this first tier, using the 
simple formula, the annual percentage yield is 5.39%:

APY=100(53.90/1,000)
APY=5.39%
    Second tier. For the second tier, the institution would pay between 
$134.75 and $841.45 in interest, based on assumed balances of $2,500.01 
and $15,000, respectively. For $2,500.01, interest would be figured on 
$2,500 at 5.25% interest rate plus interest on $.01 at 5.50%. For the 
low end of the second tier, therefore, the annual percentage yield is 
5.39%, using the simple formula:

APY=100(134.75/2,500)
APY=5.39%
    For $15,000, interest is figured on $2,500 at 5.25% interest rate 
plus interest on $12,500 at 5.50% interest rate. For the high end of the 
second tier, the annual percentage yield, using the simple formula, is 
5.61%:

APY=100(841.45/15,000)
APY=5.61%
    Thus, the annual percentage yield range for the second tier is 5.39% 
to 5.61%.
    Third tier. For the third tier, the institution would pay $841.45 in 
interest on the low end of the third tier (a balance of $15,000.01). For 
$15,000.01, interest would be figured on $2,500 at 5.25% interest rate, 
plus interest on $12,500 at 5.50% interest rate, plus interest on $.01 
at 5.75% interest rate. For the low end of the third tier, therefore, 
the annual percentage yield (using the simple formula) is 5.61%:

APY=100 (841.45/15,000)
APY=5.61%
    Since the institution does not limit the account balance, it may 
assume any maximum

[[Page 16]]

amount for the purposes of computing the annual percentage yield for the 
high end of the third tier. For an assumed maximum balance amount of 
$100,000, interest would be figured on $2,500 at 5.25% interest rate, 
plus interest on $12,500 at 5.50% interest rate, plus interest on 
$85,000 at 5.75% interest rate. For the high end of the third tier, 
therefore, the annual percentage yield, using the simple formula, is 
5.87%.

APY=100 (5,871.79/100,000)
APY=5.87%
    Thus, the annual percentage yield range that would be stated for the 
third tier is 5.61% to 5.87%.
    If the assumed maximum balance amount is $1,000,000 instead of 
$100,000, the institution would use $985,000 rather than $85,000 in the 
last calculation. In that case, for the high end of the third tier the 
annual percentage yield, using the simple formula, is 5.91%:

APY=100 (59134.22/1,000,000)
APY=5.91%
    Thus, the annual percentage yield range that would be stated for the 
third tier is 5.61% to 5.91%.
    E. Time Accounts with a Stated Maturity Greater than One Year that 
Pay Interest At Least Annually
    1. For time accounts with a stated maturity greater than one year 
that do not compound interest on an annual or more frequent basis, and 
that require the consumer to withdraw interest at least annually, the 
annual percentage yield may be disclosed as equal to the interest rate.

                                 Example

    (1) If an institution offers a $1,000 two-year certificate of 
deposit that does not compound and that pays out interest semi-annually 
by check or transfer at a 6.00% interest rate, the annual percentage 
yield may be disclosed as 6.00%.
    (2) For time accounts covered by this paragraph that are also 
stepped-rate accounts, the annual percentage yield may be disclosed as 
equal to the composite interest rate.

                                 Example

    (1) If an institution offers a $1,000 three-year certificate of 
deposit that does not compound and that pays out interest annually by 
check or transfer at a 5.00% interest rate for the first year, 6.00% 
interest rate for the second year, and 7.00% interest rate for the third 
year, the institution may compute the composite interest rate and APY as 
follows:
    (a) Multiply each interest rate by the number of days it will be in 
effect;
    (b) Add these figures together; and
    (c) Divide by the total number of days in the term.
    (2) Applied to the example, the products of the interest rates and 
days the rates are in effect are (5.00%x365 days) 1825, (6.00%x365 days) 
2190, and (7.00%x365 days) 2555, respectively. The sum of these 
products, 6570, is divided by 1095, the total number of days in the 
term. The composite interest rate and APY are both 6.00%.

     Part II. Annual Percentage Yield Earned for Periodic Statements

    The annual percentage yield earned for periodic statements under 
Sec. 230.6(a) is an annualized rate that reflects the relationship 
between the amount of interest actually earned on the consumer's account 
during the statement period and the average daily balance in the account 
for the statement period. Pursuant to Sec. 230.6(b), however, if an 
institution uses the average daily balance method and calculates 
interest for a period other than the statement period, the annual 
percentage yield earned shall reflect the relationship between the 
amount of interest earned and the average daily balance in the account 
for that other period.
    The annual percentage yield earned shall be calculated by using the 
following formulas (``APY Earned'' is used for convenience in the 
formulas):
    A. General formula.
APY Earned=100 [(1+Interest earned/
Balance)(365/Days in period)-1]

    ``Balance'' is the average daily balance in the account for the 
period.
    ``Interest earned'' is the actual amount of interest earned on the 
account for the period.
    ``Days in period'' is the actual number of days for the period.

                                Examples

    (1) Assume an institution calculates interest for the statement 
period (and uses either the daily balance or the average daily balance 
method), and the account has a balance of $1,500 for 15 days and a 
balance of $500 for the remaining 15 days of a 30-day statement period. 
The average daily balance for the period is $1,000. The interest earned 
(under either balance computation method) is $5.25 during the period. 
The annual percentage yield earned (using the formula above) is 6.58%:

APY Earned=100 [(1+5.25/1,000)(365/30)-1]
APY Earned=6.58%
    (2) Assume an institution calculates interest on the average daily 
balance for the calendar month and provides periodic statements that 
cover the period from the 16th of one month to the 15th of the next 
month. The account has a balance of $2,000 September 1 through September 
15 and a balance of $1,000 for the remaining 15 days of September. The 
average daily balance for the month of September is $1,500, which 
results in $6.50 in interest earned for the month. The annual percentage 
yield earned for the month of September would be shown on the

[[Page 17]]

periodic statement covering September 16 through October 15. The annual 
percentage yield earned (using the formula above) is 5.40%:

APY Earned=100 [(6.50/1,500)(365/30)-1]
APY Earned=5.40%
    (3) Assume an institution calculates interest on the average daily 
balance for a quarter (for example, the calendar months of September 
through November), and provides monthly periodic statements covering 
calendar months. The account has a balance of $1,000 throughout the 30 
days of September, a balance of $2,000 throughout the 31 days of 
October, and a balance of $3,000 throughout the 30 days of November. The 
average daily balance for the quarter is $2,000, which results in $21 in 
interest earned for the quarter. The annual percentage yield earned 
would be shown on the periodic statement for November. The annual 
percentage yield earned (using the formula above) is 4.28%:

APY Earned=100 [(1+21/2,000)(365/91)-1]
APY Earned=4.28%
    B. Special formula for use where periodic statement is sent more 
often than the period for which interest is compounded.
    Institutions that use the daily balance method to accrue interest 
and that issue periodic statements more often than the period for which 
interest is compounded shall use the following special formula:
[GRAPHIC] [TIFF OMITTED] TC27SE91.048

    The following definition applies for use in this formula (all other 
terms are defined under Part II):

``Compounding'' is the number of days in each compounding period.
    Assume an institution calculates interest for the statement period 
using the daily balance method, pays a 5.00% interest rate, compounded 
annually, and provides periodic statements for each monthly cycle. The 
account has a daily balance of $1,000 for a 30-day statement period. The 
interest earned is $4.11 for the period, and the annual percentage yield 
earned (using the special formula above) is 5.00%:
[GRAPHIC] [TIFF OMITTED] TC27SE91.049

APY Earned=5.00%

[57 FR 43376, Sept. 21, 1992, as amended at 57 FR 46480, Oct. 9, 1992; 
58 FR 15082, Mar. 19, 1993; 60 FR 5130, Jan. 26, 1995; Reg. DD, 63 FR 
40638, July 30, 1998]



       Sec. Appendix B to Part 230--Model Clauses and Sample Forms

                            Table of contents

B-1--Model Clauses for Account Disclosures (Section 230.4(b))
B-2--Model Clauses for Change in Terms (Section 230.5(a))
B-3--Model Clauses for Pre-Maturity Notices for Time Accounts (Section 
          230.5(b)(2) and 230.5(d))
B-4--Sample Form (Multiple Accounts)
B-5--Sample Form (Now Account)
B-6--Sample Form (Tiered Rate Money Market Account)
B-7--Sample Form (Certificate of Deposit)
B-8--Sample Form (Certificate of Deposit Advertisement)
B-9--Sample Form (Money Market Account Advertisement)
B-10--Sample Form (Aggregate Overdraft and Returned Item Fees)

               B-1--Model Clauses for Account Disclosures

    (a) Rate information
    (i) Fixed-rate accounts
    The interest rate on your account is ----% with an annual percentage 
yield of ----%. You will be paid this rate [for (time period)/until 
(date)/ for at least 30 calendar days].
    (ii) Variable-rate accounts
    The interest rate on your account is ----% with an annual percentage 
yield of ----%.
    Your interest rate and annual percentage yield may change.

[[Page 18]]

                          Determination of Rate

    The interest rate on your account is based on (name of index) [plus/
minus a margin of --------].

 or

    At our discretion, we may change the interest rate on your account.

                        Frequency of Rate Changes

    We may change the interest rate on your account [every (time 
period)/at any time].

                       Limitations on Rate Changes

    The interest rate for your account will never change by more than --
--% each (time period).
    The interest rate will never be [less/more] than ----%.

 or

    The interest rate will never [exceed----% above/drop more than ----% 
below] the interest rate initially disclosed to you.
    (iii) Stepped-rate accounts
    The initial interest rate for your account is ----%. You will be 
paid this rate [for (time period)/until (date)]. After that time, the 
interest rate for your account will be ----%, and you will be paid this 
rate [for (time period)/until (date)]. The annual percentage yield for 
your account is ----%.
    (iv) Tiered-rate accounts

                            Tiering Method A

     If your [daily balance/average daily balance] is 
$---- or more, the interest rate paid on the entire balance in your 
account will be ----% with an annual percentage yield of ----%.
     If your [daily balance/average daily balance] is 
more than $----, but less than $----, the interest rate paid on the 
entire balance in your account will be ----% with an annual percentage 
yield of ----%.
     If your [daily balance/average daily balance] is 
$---- or less, the interest rate paid on the entire balance will be ----
% with an annual percentage yield of ----%.

                            Tiering Method B

     An interest rate of ----% will be paid only for 
that portion of your [daily balance/average daily balance] that is 
greater than $----. The annual percentage yield for this tier will range 
from ----% to ----%, depending on the balance in the account.
     An interest rate of ----% will be paid only for 
that portion of your [daily balance/average daily balance] that is 
greater than $----, but less than $----. The annual percentage yield for 
this tier will range from ----% to ----%, depending on the balance in 
the account.
     If your [daily balance/average daily balance] is 
$---- or less, the interest rate paid on the entire balance will be ----
% with an annual percentage yield of ----%.
    (b) Compounding and crediting

                              (i) Frequency

    Interest will be compounded [on a ---- basis/every (time period)]. 
Interest will be credited to your account [on a ---- basis/every (time 
period)].
    (ii) Effect of closing an account
    If you close your account before interest is credited, you will not 
receive the accrued interest.
    (c) Minimum balance requirements
    (i) To open the account
    You must deposit $------ to open this account.
    (ii) To avoid imposition of fees
    A minimum balance fee of $------ will be imposed every (time period) 
if the balance in the account falls below $------ any day of the (time 
period).
    A minimum balance fee of $------ will be imposed every (time period) 
if the average daily balance for the (time period) falls below $------. 
The average daily balance is calculated by adding the principal in the 
account for each day of the period and dividing that figure by the 
number of days in the period.
    (iii) To obtain the annual percentage yield disclosed
    You must maintain a minimum balance of $------ in the account each 
day to obtain the disclosed annual percentage yield.
    You must maintain a minimum average daily balance of $------ to 
obtain the disclosed annual percentage yield. The average daily balance 
is calculated by adding the principal in the account for each day of the 
period and dividing that figure by the number of days in the period.
    (d) Balance computation method
    (i) Daily balance method
    We use the daily balance method to calculate the interest on your 
account. This method applies a daily periodic rate to the principal in 
the account each day.
    (ii) Average daily balance method
    We use the average daily balance method to calculate interest on 
your account. This method applies a periodic rate to the average daily 
balance in the account for the period. The average daily balance is 
calculated by adding the principal in the account for each day of the 
period and dividing that figure by the number of days in the period.
    (e) Accrual of interest on noncash deposits
    Interest begins to accrue no later than the business day we receive 
credit for the deposit of noncash items (for example, checks).

 or

    Interest begins to accrue on the business day you deposit noncash 
items (for example, checks).
    (f) Fees

[[Page 19]]

    The following fees may be assessed against your account:
    ------------------------------$--------
    ------------------------------$--------
    ------------------------------$--------
    --------(conditions for imposing fee) $--------
    ----------------------------------% of --------.
    (g) Transaction limitations
    The minimum amount you may [withdraw/write a check for] is $------.
    You may make -------- [deposits into/withdrawals from] your account 
each (time period).
    You may not make [deposits into/withdrawals from] your account until 
the maturity date.
    (h) Disclosures relating to time accounts
    (i) Time requirements
    Your account will mature on (date).
    Your account will mature in (time period).
    (ii) Early withdrawal penalties
    We [will/may] impose a penalty if you withdraw [any/all] of the 
[deposited funds/principal] before the maturity date. The fee imposed 
will equal ------ days/week[s]/month[s] of interest.

 or

    We [will/may] impose a penalty of $------ if you withdraw [any/all] 
of the [deposited funds/principal] before the maturity date.
    If you withdraw some of your funds before maturity, the interest 
rate for the remaining funds in your account will be ------% with an 
annual percentage yield of ------%.
    (iii) Withdrawal of interest prior to maturity
    The annual percentage yield assumes interest will remain on deposit 
until maturity. A withdrawal will reduce earnings.
    (iv) Renewal policies
    (1) Automatically renewable time accounts
    This account will automatically renew at maturity.
    You will have [------ calendar/business] days after the maturity 
date to withdraw funds without penalty.

 or

    There is no grace period following the maturity of this account to 
withdraw funds without penalty.
    (2) Non-automatically renewable time accounts
    This account will not renew automatically at maturity. If you do not 
renew the account, your deposit will be placed in [an interest-bearing/a 
noninterest-bearing] account.
    (v) Required interest distribution.
    This account requires the distribution of interest and does not 
allow interest to remain in the account.
    (i) Bonuses
    You will [be paid/receive] [$------ /(description of item)] as a 
bonus [when you open the account/on (date) ------].
    You must maintain a minimum [daily balance/average daily balance] of 
$------ to obtain the bonus.
    To earn the bonus, [$------ /your entire principal] must remain on 
deposit [for (time period)/until (date)------].

                 B-2--Model Clauses for Change in Terms

    On (date), the cost of (type of fee) will increase to $------.
    On (date), the interest rate on your account will decrease to ------
% with an annual percentage yield of ------%.
    On (date), the minimum [daily balance/average daily balance] 
required to avoid imposition of a fee will increase to $------.

      B-3--Model Clauses for Pre-Maturity Notices for Time Accounts

    (a) Automatically renewable time accounts with maturities of one 
year or less but longer than one month
    Your account will mature on (date).
    If the account renews, the new maturity date will be (date).
    The interest rate for the renewed account will be ------% with an 
annual percentage yield of ------%.

 or

    The interest rate and annual percentage yield have not yet been 
determined. They will be available on (date). Please call (phone number) 
to learn the interest rate and annual percentage yield for your new 
account.
    (b) Non-automatically renewable time accounts with maturities longer 
than one year
    Your account will mature on (date).
    If you do not renew the account, interest [will/will not] be paid 
after maturity.

[[Page 20]]

[GRAPHIC] [TIFF OMITTED] TC27SE91.050


[[Page 21]]


[GRAPHIC] [TIFF OMITTED] TC27SE91.051


[[Page 22]]


[GRAPHIC] [TIFF OMITTED] TC27SE91.052


[[Page 23]]


[GRAPHIC] [TIFF OMITTED] TC27SE91.053


[[Page 24]]


[GRAPHIC] [TIFF OMITTED] TC27SE91.054


[[Page 25]]


[GRAPHIC] [TIFF OMITTED] TC27SE91.055


[[Page 26]]


[GRAPHIC] [TIFF OMITTED] TC27SE91.056


[[Page 27]]


[GRAPHIC] [TIFF OMITTED] TC27SE91.057


[[Page 28]]


[GRAPHIC] [TIFF OMITTED] TC27SE91.058

[GRAPHIC] [TIFF OMITTED] TR17AP09.009


[57 FR 43376, Sept. 21, 1992, as amended at 57 FR 46480, Oct. 9, 1992; 
Reg. DD, 60 FR 5131, Jan. 26, 1995; 74 FR 5593, Jan. 29, 2009; 74 FR 
17768, Apr. 17, 2009]

[[Page 29]]



            Sec. Appendix C to Part 230--Effect on State Laws

                      (a) Inconsistent Requirements

    State law requirements that are inconsistent with the requirements 
of the act and this part are preempted to the extent of the 
inconsistency. A state law is inconsistent if it requires a depository 
institution to make disclosures or take actions that contradict the 
requirements of the federal law. A state law is also contradictory if it 
requires the use of the same term to represent a different amount or a 
different meaning than the federal law, requires the use of a term 
different from that required in the federal law to describe the same 
item, or permits a method of calculating interest on an account 
different from that required in the federal law.

                      (b) Preemption Determinations

    A depository institution, state, or other interested party may 
request the Board to determine whether a state law requirement is 
inconsistent with the federal requirements. A request for a 
determination shall be in writing and addressed to the Secretary, Board 
of Governors of the Federal Reserve System, Washington, DC 20551. Notice 
that the Board intends to make a determination (either on request or on 
its own motion) will be published in the Federal Register, with an 
opportunity for public comment unless the Board finds that notice and 
opportunity for comment would be impracticable, unnecessary, or contrary 
to the public interest and publishes its reasons for such decision. 
Notice of a final determination will be published in the Federal 
Register and furnished to the party who made the request and to the 
appropriate state official.

                 (c) Effect of Preemption Determinations

    After the Board determines that a state law is inconsistent, a 
depository institution may not make disclosures using the inconsistent 
term or take actions relying on the inconsistent law.

                      (d) Reversal of Determination

    The Board reserves the right to reverse a determination for any 
reason bearing on the coverage or effect of state or federal law. Notice 
of reversal of a determination will be published in the Federal Register 
and a copy furnished to the appropriate state official.



     Sec. Appendix D to Part 230--Issuance of Staff Interpretations

    Officials in the Board's Division of Consumer and Community Affairs 
are authorized to issue official staff interpretations of this part. 
These interpretations provide the protections afforded under section 
271(f) of the act. Except in unusual circumstances, interpretations will 
not be issued separately but will be incorporated in an official 
commentary to this part, which will be amended periodically. No staff 
interpretations will be issued approving depository institutions' forms, 
statements, or calculation tools or methods.



      Sec. Supplement I to Part 230--Official Staff Interpretations

                              Introduction

    1. Official status. This commentary is the means by which the 
Division of Consumer and Community Affairs of the Federal Reserve Board 
issues official staff interpretations of Regulation DD. Good faith 
compliance with this commentary affords protection from liability under 
section 271(f) of the Truth in Savings Act.

Section 230.1 Authority, purpose, coverage, and effect on state laws
    (c) Coverage
    1. Foreign applicability. Regulation DD applies to all depository 
institutions, except credit unions, that offer deposit accounts to 
residents (including resident aliens) of any state as defined in Sec. 
230.2(r). Accounts held in an institution located in a state are 
covered, even if funds are transferred periodically to a location 
outside the United States. Accounts held in an institution located 
outside the United States are not covered, even if held by a U.S. 
resident.
    2. Persons who advertise accounts. Persons who advertise accounts 
are subject to the advertising rules. For example, if a deposit broker 
places an advertisement offering consumers an interest in an account at 
a depository institution, the advertising rules apply to the 
advertisement, whether the account is to be held by the broker or 
directly by the consumer.

Section 230.2 Definitions
    (a) Account
    1. Covered accounts. Examples of accounts subject to the regulation 
are:
    i. Interest-bearing and noninterest-bearing accounts
    ii. Deposit accounts opened as a condition of obtaining a credit 
card
    iii. Accounts denominated in a foreign currency
    iv. Individual retirement accounts (IRAs) and simplified employee 
pension (SEP) accounts
    v. Payable on death (POD) or ``Totten trust'' accounts
    2. Other accounts. Examples of accounts not subject to the 
regulation are:
    i. Mortgage escrow accounts for collecting taxes and property 
insurance premiums
    ii. Accounts established to make periodic disbursements on 
construction loans

[[Page 30]]

    iii. Trust accounts opened by a trustee pursuant to a formal written 
trust agreement (not merely declarations of trust on a signature card 
such as a ``Totten trust,'' or an IRA and SEP account)
    iv. Accounts opened by an executor in the name of a decedent's 
estate
    3. Other investments. The term ``account'' does not apply to all 
products of a depository institution. Examples of products not covered 
are:
    i. Government securities
    ii. Mutual funds
    iii. Annuities
    iv. Securities or obligations of a depository institution
    v. Contractual arrangements such as repurchase agreements, interest 
rate swaps, and bankers acceptances
    (b) Advertisement

    1. Covered messages. Advertisements include commercial messages in 
visual, oral, or print media that invite, offer, or otherwise announce 
generally to prospective customers the availability of consumer 
accounts--such as:
    i. Telephone solicitations
    ii. Messages on automated teller machine (ATM) screens
    iii. Messages on a computer screen in an institution's lobby 
(including any printout) other than a screen viewed solely by the 
institution's employee
    iv. Messages in a newspaper, magazine, or promotional flyer or on 
radio
    v. Messages that are provided along with information about the 
consumer's existing account and that promote another account at the 
institution
    2. Other messages. Examples of messages that are not advertisements 
are:
    i. Rate sheets in a newspaper, periodical, or trade journal (unless 
the depository institution, or a deposit broker offering accounts at the 
institution, pays a fee for or otherwise controls publication)
    ii. In-person discussions with consumers about the terms for a 
specific account
    iii. For purposes of Sec. 230.8(b) of this part through Sec. 
230.8(e) of this part, information given to consumers about existing 
accounts, such as current rates recorded on a voice-response machine or 
notices for automatically renewable time account sent before renewal
    iv. Information about a particular transaction in an existing 
account
    v. Disclosures required by federal or other applicable law
    vi. A deposit account agreement

    (f) Bonus
    1. Examples. Bonuses include items of value, other than interest, 
offered as incentives to consumers, such as an offer to pay the final 
installment deposit for a holiday club account. Items that are not a 
bonus include discount coupons for goods or services at restaurants or 
stores.
    2. De minimis rule. Items with a de minimis value of $10 or less are 
not bonuses. Institutions may rely on the valuation standard used by the 
Internal Revenue Service to determine if the value of the item is de 
minimis. Examples of items of de minimis value are:
    i. Disability insurance premiums valued at an amount of $10 or less 
per year
    ii. Coffee mugs, T-shirts or other merchandise with a market value 
of $10 or less
    3. Aggregation. In determining if an item valued at $10 or less is a 
bonus, institutions must aggregate per account per calendar year items 
that may be given to consumers. In making this determination, 
institutions aggregate per account only the market value of items that 
may be given for a specific promotion. To illustrate, assume an 
institution offers in January to give consumers an item valued at $7 for 
each calendar quarter during the year that the average account balance 
in a negotiable order of withdrawal (NOW) account exceeds $10,000. The 
bonus rules are triggered, since consumers are eligible under the 
promotion to receive up to $28 during the year. However, the bonus rules 
are not triggered if an item valued at $7 is offered to consumers 
opening a NOW account during the month of January, even though in 
November the institution introduces a new promotion that includes, for 
example, an offer to existing NOW account holders for an item valued at 
$8 for maintaining an average balance of $5,000 for the month.
    4. Waiver or reduction of a fee or absorption of expenses. Bonuses 
do not include value that consumers receive through the waiver or 
reduction of fees (even if the fees waived exceed $10) for banking-
related services such as the following:
    i. A safe deposit box rental fee for consumers who open a new 
account
    ii. Fees for travelers checks for account holders
    iii. Discounts on interest rates charged for loans at the 
institution
    (h) Consumer
    1. Professional capacity. Examples of accounts held by a natural 
person in a professional capacity for another are attorney-client trust 
accounts and landlord-tenant security accounts.
    2. Other accounts. Accounts not held in a professional capacity 
include accounts held by an individual for a child under the Uniform 
Gifts to Minors Act.
    3. Sole proprietors. Accounts held by individuals as sole 
proprietors are not covered.
    4. Retirement plans. IRAs and SEP accounts are consumer accounts to 
the extent that funds are invested in covered accounts. But Keogh 
accounts are not subject to the regulation.
    (j) Depository institution and institution

[[Page 31]]

    1. Foreign institutions. Branches of foreign institutions located in 
the United States are subject to the regulation if they offer deposit 
accounts to consumers. Edge Act and Agreement corporations, and agencies 
of foreign institutions, are not depository institutions for purposes of 
this regulation.
    (k) Deposit broker
    1. General. A deposit broker is a person who is in the business of 
placing or facilitating the placement of deposits in an institution, as 
defined by the Federal Deposit Insurance Act (12 U.S.C. 29(g)).

                              (n) Interest

    1. Relation to bonuses. Bonuses are not interest for purposes of 
this regulation.
    (p) Passbook savings account
    1. Relation to Regulation E. Passbook savings accounts include 
accounts accessed by preauthorized electronic fund transfers to the 
account (as defined in 12 CFR Sec. 205.2(j)), such as an account that 
receives direct deposit of social security payments. Accounts permitting 
access by other electronic means are not ``passbook saving accounts'' 
and must comply with the requirements of Sec. 230.6 if statements are 
sent four or more times a year.
    (q) Periodic statement
    1. Examples. Periodic statements do not include:
    i. Additional statements provided solely upon request
    ii. General service information such as a quarterly newsletter or 
other correspondence describing available services and products
    (t) Tiered-rate account
    1. Time accounts. Time accounts paying different rates based solely 
on the amount of the initial deposit are not tiered-rate accounts.
    2. Minimum balance requirements. A requirement to maintain a minimum 
balance to earn interest does not make an account a tiered-rate account.
    (u) Time account
    1. Club accounts. Although club accounts typically have a maturity 
date, they are not time accounts unless they also require a penalty of 
at least seven days' interest for withdrawals during the first six days 
after the account is opened.
    2. Relation to Regulation D. Regulation D permits in limited 
circumstances the withdrawal of funds without penalty during the first 
six days after a ``time deposit'' is opened. (See 12 CFR Sec. 
204.2(c)(1)(i).) But the fact that a consumer makes a withdrawal as 
permitted by Regulation D does not disqualify the account from being a 
time account for purposes of this regulation.
    (v) Variable-rate account
    1. General. A certificate of deposit permitting one or more rate 
adjustments prior to maturity at the consumer's option is a variable-
rate account.

Section 230.3 General disclosure requirements
    (a) Form
    1. Design requirements. Disclosures must be presented in a format 
that allows consumers to readily understand the terms of their account. 
Institutions are not required to use a particular type size or typeface, 
nor are institutions required to state any term more conspicuously than 
any other term. Disclosures may be made:
    i. In any order
    ii. In combination with other disclosures or account terms
    iii. In combination with disclosures for other types of accounts, as 
long as it is clear to consumers which disclosures apply to their 
account
    iv. On more than one page and on the front and reverse sides
    v. By using inserts to a document or filling in blanks
    vi. On more than one document, as long as the documents are provided 
at the same time
    2. Consistent terminology. Institutions must use consistent 
terminology to describe terms or features required to be disclosed. For 
example, if an institution describes a monthly fee (regardless of 
account activity) as a ``monthly service fee'' in account-opening 
disclosures, the periodic statement and change-in-term notices must use 
the same terminology so that consumers can readily identify the fee.
    (b) General
    1. Specificity of legal obligation. Institutions may refer to the 
calendar month or to roughly equivalent intervals during a calendar year 
as a ``month.''
    (c) Relation to Regulation E
    1. General rule. Compliance with Regulation E (12 CFR part 205) is 
deemed to satisfy the disclosure requirements of this regulation, such 
as when:
    i. An institution changes a term that triggers a notice under 
Regulation E, and uses the timing and disclosure rules of Regulation E 
for sending change-in-term notices
    ii. Consumers add an ATM access feature to an account, and the 
institution provides disclosures pursuant to Regulation E, including 
disclosure of fees (See 12 CFR Sec. 205.7.)
    iii. An institution complying with the timing rules of Regulation E 
discloses at the same time fees for electronic services (such as for 
balance inquiry fees at ATMs) required to be disclosed by this 
regulation but not by Regulation E
    iv. An institution relies on Regulation E's rules regarding 
disclosure of limitations on the frequency and amount of electronic fund 
transfers, including security-related exceptions. But any limitations on 
``intra-institutional transfers'' to or from the consumer's other 
accounts during a given time period

[[Page 32]]

must be disclosed, even though intra-institutional transfers are exempt 
from Regulation E.
    (e) Oral response to inquiries
    1. Application of rule. Institutions are not required to provide 
rate information orally.
    2. Relation to advertising. The advertising rules do not cover an 
oral response to a question about rates.
    3. Existing accounts. This paragraph does not apply to oral 
responses about rate information for existing accounts. For example, if 
a consumer holding a one-year certificate of deposit (CD) requests 
interest rate information about the CD during the term, the institution 
need not disclose the annual percentage yield.
    (f) Rounding and accuracy rules for rates and yields
    (f)(1) Rounding
    1. Permissible rounding. Examples of permissible rounding are an 
annual percentage yield calculated to be 5.644%, rounded down and 
disclosed as 5.64%; 5.645% rounded up and disclosed as 5.65%.
    (f)(2) Accuracy
    1. Annual percentage yield and annual percentage yield earned. The 
tolerance for annual percentage yield and annual percentage yield earned 
calculations is designed to accommodate inadvertent errors. Institutions 
may not purposely incorporate the tolerance into their calculation of 
yields.

Section 230.4 Account disclosures

    (a) Delivery of account disclosures
    (a)(1) Account opening
    1. New accounts. New account disclosures must be provided when:
    i. A time account that does not automatically rollover is renewed by 
a consumer
    ii. A consumer changes a term for a renewable time account (see 
Sec. 230.5(b)-5 regarding disclosure alternatives)
    iii. An institution transfers funds from an account to open a new 
account not at the consumer's request, unless the institution previously 
gave account disclosures and any change-in-term notices for the new 
account
    iv. An institution accepts a deposit from a consumer to an account 
that the institution had deemed closed for the purpose of treating 
accrued but uncredited interest as forfeited interest (see Sec. 
230.7(b)-3)
    2. Acquired accounts. New account disclosures need not be given when 
an institution acquires an account through an acquisition of or merger 
with another institution (but see Sec. 230.5(a) regarding advance 
notice requirements if terms are changed).
    (a)(2) Requests
    (a)(2)(i)
    1. Inquiries versus requests. A response to an oral inquiry (by 
telephone or in person) about rates and yields or fees does not trigger 
the duty to provide account disclosures. But when consumers ask for 
written information about an account (whether by telephone, in person, 
or by other means), the institution must provide disclosures unless the 
account is no longer offered to the public.
    2. General requests. When responding to a consumer's general request 
for disclosures about a type of account (a NOW account, for example), an 
institution that offers several variations may provide disclosures for 
any one of them.
    3. Timing for response. Ten business days is a reasonable time for 
responding to requests for account information that consumers do not 
make in person, including requests made by electronic means (such as by 
electronic mail).
    4. Use of electronic means. If a consumer who is not present at the 
institution makes a request for account disclosures, including a request 
made by telephone, e-mail, or via the institution's Web site, the 
institution may send the disclosures in paper form or, if the consumer 
agrees, may provide the disclosures electronically, such as to an e-mail 
address that the consumer provides for that purpose, or on the 
institution's Web site, without regard to the consumer consent or other 
provisions of the E-Sign Act. The regulation does not require an 
institution to provide, nor a consumer to agree to receive, the 
disclosures required by Sec. 230.4(a)(2) in electronic form.
    (a)(2)(ii)(A)
    1. Recent rates. Institutions comply with this paragraph if they 
disclose an interest rate and annual percentage yield accurate within 
the seven calendar days preceding the date they send the disclosures.
    (a)(2)(ii)(B)
    1. Term. Describing the maturity of a time account as ``1 year'' or 
``6 months,'' for example, illustrates a statement of the maturity of a 
time account as a term rather than a date (``January 10, 1995'').
    (b) Content of account disclosures
    (b)(1) Rate information
    (b)(1)(i) Annual percentage yield and interest rate
    1. Rate disclosures. In addition to the interest rate and annual 
percentage yield, institutions may disclose a periodic rate 
corresponding to the interest rate. No other rate or yield (such as 
``tax effective yield'') is permitted. If the annual percentage yield is 
the same as the interest rate, institutions may disclose a single figure 
but must use both terms.
    2. Fixed-rate accounts. For fixed-rate time accounts paying the 
opening rate until maturity, institutions may disclose the period of 
time the interest rate will be in effect by stating the maturity date. 
(See appendix B, B-7--Sample Form.) For other fixed-rate accounts, 
institutions may use a date (``This rate will be in effect through May 
4, 1995'') or a period (``This rate will be in effect for at least 30 
days'').

[[Page 33]]

    3. Tiered-rate accounts. Each interest rate, along with the 
corresponding annual percentage yield for each specified balance level 
(or range of annual percentage yields, if appropriate), must be 
disclosed for tiered-rate accounts. (See appendix A, Part I, Paragraph 
D.)
    4. Stepped-rate accounts. A single composite annual percentage yield 
must be disclosed for stepped-rate accounts. (See appendix A, Part I, 
Paragraph B.) The interest rates and the period of time each will be in 
effect also must be provided. When the initial rate offered for a 
specified time on a variable-rate account is higher or lower than the 
rate that would otherwise be paid on the account, the calculation of the 
annual percentage yield must be made as if for a stepped-rate account. 
(See appendix A, Part I, Paragraph C.)
    (b)(1)(ii) Variable rates
    (b)(1)(ii)(B)
    1. Determining interest rates. To disclose how the interest rate is 
determined, institutions must:
    i. Identify the index and specific margin, if the interest rate is 
tied to an index
    ii. State that rate changes are within the institution's discretion, 
if the institution does not tie changes to an index
    (b)(1)(ii)(C)
    1. Frequency of rate changes. An institution reserving the right to 
change rates at its discretion must state the fact that rates may change 
at any time.
    (b)(1)(ii)(D)
    1. Limitations. A floor or ceiling on rates or on the amount the 
rate may decrease or increase during any time period must be disclosed. 
Institutions need not disclose the absence of limitations on rate 
changes.
    (b)(2) Compounding and crediting
    (b)(2)(ii) Effect of closing an account
    1. Deeming an account closed. An institution may, subject to state 
or other law, provide in its deposit contracts the actions by consumers 
that will be treated as closing the account and that will result in the 
forfeiture of accrued but uncredited interest. An example is the 
withdrawal of all funds from the account prior to the date that interest 
is credited.
    (b)(3) Balance information
    (b)(3)(ii) Balance computation method
    1. Methods and periods. Institutions may use different methods or 
periods to calculate minimum balances for purposes of imposing a fee 
(the daily balance for a calendar month, for example) and accruing 
interest (the average daily balance for a statement period, for 
example). Each method and corresponding period must be disclosed.
    (b)(3)(iii) When interest begins to accrue
    1. Additional information. Institutions may disclose additional 
information such as the time of day after which deposits are treated as 
having been received the following business day, and may use additional 
descriptive terms such as ``ledger'' or ``collected'' balances to 
disclose when interest begins to accrue.
    (b)(4) Fees
    1. Covered fees. The following are types of fees that must be 
disclosed:
    i. Maintenance fees, such as monthly service fees
    ii. Fees to open or to close an account
    iii. Fees related to deposits or withdrawals, such as fees for use 
of the institution's ATMs
    iv. Fees for special services, such as stop-payment fees, fees for 
balance inquiries or verification of deposits, fees associated with 
checks returned unpaid, and fees for regularly sending to consumers 
checks that otherwise would be held by the institution
    2. Other fees. Institutions need not disclose fees such as the 
following:

    i. Fees for services offered to account and nonaccount holders 
alike, such as travelers checks and wire transfers (even if different 
amounts are charged to account and nonaccount holders)
    ii. Incidental fees, such as fees associated with state escheat 
laws, garnishment or attorneys fees, and fees for photocopying
    3. Amount of fees. Institutions must state the amount and conditions 
under which a fee may be imposed. Naming and describing the fee (such as 
``$4.00 monthly service fee'') will typically satisfy these 
requirements.
    4. Tied-accounts. Institutions must state if fees that may be 
assessed against an account are tied to other accounts at the 
institution. For example, if an institution ties the fees payable on a 
NOW account to balances held in the NOW account and a savings account, 
the NOW account disclosures must state that fact and explain how the fee 
is determined.
    5. Fees for overdrawing an account. Under Sec. 230.4(b)(4) of this 
part, institutions must disclose the conditions under which a fee may be 
imposed. In satisfying this requirement institutions must specify the 
categories of transactions for which an overdraft fee may be imposed. An 
exhaustive list of transactions is not required. It is sufficient for an 
institution to state that the fee applies to overdrafts ``created by 
check, in-person withdrawal, ATM withdrawal, or other electronic 
means,'' as applicable. Disclosing a fee ``for overdraft items'' would 
not be sufficient.
    (b)(5) Transaction limitations
    1. General rule. Examples of limitations on the number or dollar 
amount of deposits or withdrawals that institutions must disclose are:

    i. Limits on the number of checks that may be written on an account 
within a given time period
    ii. Limits on withdrawals or deposits during the term of a time 
account
    iii. Limitations required by Regulation D on the number of 
withdrawals permitted

[[Page 34]]

from money market deposit accounts by check to third parties each month. 
Institutions need not disclose reservations of right to require notices 
for withdrawals from accounts required by federal or state law.
    (b)(6) Features of time accounts
    (b)(6)(i) Time requirements
    1. ``Callable'' time accounts. In addition to the maturity date, an 
institution must state the date or the circumstances under which it may 
redeem a time account at the institution's option (a ``callable'' time 
account).
    (b)(6)(ii) Early withdrawal penalties
    1. General. The term ``penalty'' may but need not be used to 
describe the loss of interest that consumers may incur for early 
withdrawal of funds from time accounts.
    2. Examples. Examples of early withdrawal penalties are:
    i. Monetary penalties, such as ``$10.00'' or ``seven days' interest 
plus accrued but uncredited interest''
    ii. Adverse changes to terms such as a lowering of the interest 
rate, annual percentage yield, or compounding frequency for funds 
remaining on deposit
    iii. Reclamation of bonuses
    3. Relation to rules for IRAs or similar plans. Penalties imposed by 
the Internal Revenue Code for certain withdrawals from IRAs or similar 
pension or savings plans are not early withdrawal penalties for purposes 
of this regulation.
    4. Disclosing penalties. Penalties may be stated in months, whether 
institutions assess the penalty using the actual number of days during 
the period or using another method such as a number of days that occurs 
in any actual sequence of the total calendar months involved. For 
example, stating ``one month's interest'' is permissible, whether the 
institution assesses 30 days' interest during the month of April, or 
selects a time period between 28 and 31 days for calculating the 
interest for all early withdrawals regardless of when the penalty is 
assessed.
    (b)(6)(iv) Renewal policies
    1. Rollover time accounts. Institutions offering a grace period on 
time accounts that automatically renew need not state whether interest 
will be paid if the funds are withdrawn during the grace period.
    2. Nonrollover time accounts. Institutions paying interest on funds 
following the maturity of time accounts that do not renew automatically 
need not state the rate (or annual percentage yield) that may be paid. 
(See appendix B, Model Clause B-1(h)(iv)(2).)

Section 230.5 Subsequent disclosures
    (a) Change in terms
    (a)(1) Advance notice required
    1. Form of notice. Institutions may provide a change-in-term notice 
on or with a periodic statement or in another mailing. If an institution 
provides notice through revised account disclosures, the changed term 
must be highlighted in some manner. For example, institutions may note 
that a particular fee has been changed (also specifying the new amount) 
or use an accompanying letter that refers to the changed term.
    2. Effective date. An example of language for disclosing the 
effective date of a change is ``As of November 21, 1994.''
    3. Terms that change upon the occurrence of an event. An institution 
offering terms that will automatically change upon the occurrence of a 
stated event need not send an advance notice of the change provided the 
institution fully describes the conditions of the change in the account 
opening disclosures (and sends any change-in-term notices regardless of 
whether the changed term affects that consumer's account at that time).
    4. Examples. Examples of changes not requiring an advance change-in-
terms notice are:
    i. The termination of employment for consumers for whom account 
maintenance or activity fees were waived during their employment by the 
depository institution
    ii. The expiration of one year in a promotion described in the 
account opening disclosures to ``waive $4.00 monthly service charges for 
one year''
    (a)(2) No notice required
    (a)(2)(ii) Check printing fees
    1. Increase in fees. A notice is not required for an increase in 
fees for printing checks (or deposit and withdrawal slips) even if the 
institution adds some amount to the price charged by the vendor.
    (b) Notice before maturity for time accounts longer than one month 
that renew automatically
    1. Maturity dates on nonbusiness days. In determining the term of a 
time account, institutions may disregard the fact that the term will be 
extended beyond the disclosed number of days because the disclosed 
maturity falls on a nonbusiness day. For example, a holiday or weekend 
may cause a ``one-year'' time account to extend beyond 365 days (or 366, 
in a leap year) or a ``one-month'' time account to extend beyond 31 
days.
    2. Disclosing when rates will be determined. Ways to disclose when 
the annual percentage yield will be available include the use of:
    i. A specific date, such as ``October 28''
    ii. A date that is easily determinable, such as ``the Tuesday before 
the maturity date stated on this notice'' or ``as of the maturity date 
stated on this notice''
    3. Alternative timing rule. Under the alternative timing rule, an 
institution offering a 10-day grace period would have to provide the 
disclosures at least 10 days prior to the scheduled maturity date.
    4. Club accounts. If consumers have agreed to the transfer of 
payments from another account to a club time account for the next club 
period, the institution must comply

[[Page 35]]

with the requirements for automatically renewable time accounts--even 
though consumers may withdraw funds from the club account at the end of 
the current club period.
    5. Renewal of a time account. In the case of a change in terms that 
becomes effective if a rollover time account is subsequently renewed:
    i. If the change is initiated by the institution, the disclosure 
requirements of this paragraph apply. (Paragraph 230.5(a) applies if the 
change becomes effective prior to the maturity of the existing time 
account.)
    ii. If the change is initiated by the consumer, the account opening 
disclosure requirements of Sec. 230.4(b) apply. (If the notice required 
by this paragraph has been provided, institutions may give new account 
disclosures or disclosures highlighting only the new term.)
    6. Example. If a consumer receives a prematurity notice on a one-
year time account and requests a rollover to a six-month account, the 
institution must provide either account opening disclosures including 
the new maturity date or, if all other terms previously disclosed in the 
prematurity notice remain the same, only the new maturity date.
    (b)(1) Maturities of longer than one year
    1. Highlighting changed terms. Institutions need not highlight terms 
that changed since the last account disclosures were provided.
    (c) Notice for time accounts one month or less that renew 
automatically
    (d) Notice before maturity for time accounts longer than one year 
that do not renew automatically
    1. Subsequent account. When funds are transferred following maturity 
of a nonrollover time account, institutions need not provide account 
disclosures unless a new account is established.

Section 230.6 Periodic statement disclosures
    (a) General rule
    1. General. Institutions are not required to provide periodic 
statements. If they do provide statements, disclosures need only be 
furnished to the extent applicable. For example, if no interest is 
earned for a statement period, institutions need not state that fact. 
Or, institutions may disclose ``$0'' interest earned and ``0%'' annual 
percentage yield earned.
    2. Regulation E interim statements. When an institution provides 
regular quarterly statements, and in addition provides a monthly interim 
statement to comply with Regulation E, the interim statement need not 
comply with this section unless it states interest or rate information. 
(See 12 CFR Sec. 205.9(b).)
    3. Combined statements. Institutions may provide information about 
an account (such as an MMDA) on the periodic statement for another 
account (such as a NOW account) without triggering the disclosures 
required by this section, as long as:
    i. The information is limited to the account number, the type of 
account, or balance information, and
    ii. The institution also provides a periodic statement complying 
with this section for each account.
    4. Other information. Additional information that may be given on or 
with a periodic statement includes:
    i. Interest rates and corresponding periodic rates applied to 
balances during the statement period
    ii. The dollar amount of interest earned year-to-date
    iii. Bonuses paid (or any de minimis consideration of $10 or less)
    iv. Fees for products such as safe deposit boxes
    (a)(1) Annual percentage yield earned
    1. Ledger and collected balances. Institutions that accrue interest 
using the collected balance method may use either the ledger or the 
collected balance in determining the annual percentage yield earned.
    (a)(2) Amount of interest
    1. Accrued interest. Institutions must state the amount of interest 
that accrued during the statement period, even if it was not credited.
    2. Terminology. In disclosing interest earned for the period, 
institutions must use the term ``interest'' or terminology such as:
    i. ``Interest paid,'' to describe interest that has been credited
    ii. ``Interest accrued'' or ``interest earned,'' to indicate that 
interest is not yet credited
    3. Closed accounts. If consumers close an account between crediting 
periods and forfeits accrued interest, the institution may not show any 
figures for interest earned or annual percentage yield earned for the 
period (other than zero, at the institution's option).
(a)(3) Fees imposed
    1. General. Periodic statements must state fees disclosed under 
Sec. 230.4(b) that were debited to the account during the statement 
period, even if assessed for an earlier period.
    2. Itemizing fees by type. In itemizing fees imposed more than once 
in the period, institutions may group fees if they are the same type. 
(See Sec. 230.11(a)(1) of this part regarding certain fees that are 
required to be grouped.) When fees of the same type are grouped 
together, the description must make clear that the dollar figure 
represents more than a single fee, for example, ``total fees for checks 
written this period.'' Examples of fees that may not be grouped together 
are--
    i. Monthly maintenance and excess-activity fees
    ii. ``transfer'' fees, if different dollar amounts are imposed'' 
such as $.50 for deposits and $1.00 for withdrawals

[[Page 36]]

    iii. fees for electronic fund transfers and fees for other services, 
such as balance-inquiry or maintenance fees
    iv. fees for paying overdrafts and fees for returning checks or 
other items unpaid

    3. Identifying fees. Statement details must enable consumers to 
identify the specific fee. For example:
    i. Institutions may use a code to identify a particular fee if the 
code is explained on the periodic statement or in documents accompanying 
the statement.
    ii. Institutions using debit slips may disclose the date the fee was 
debited on the periodic statement and show the amount and type of fee on 
the dated debit slip.
    4. Relation to Regulation E. Disclosure of fees in compliance with 
Regulation E complies with this section for fees related to electronic 
fund transfers (for example, totaling all electronic funds transfer fees 
in a single figure).
    (a)(4) Length of period
    1. General. Institutions providing the beginning and ending dates of 
the period must make clear whether both dates are included in the 
period.
    2. Opening or closing an account mid-cycle. If an account is opened 
or closed during the period for which a statement is sent, institutions 
must calculate the annual percentage yield earned based on account 
balances for each day the account was open.
(b) Special rule for average daily balance method
    1. Monthly statements and quarterly compounding. This rule applies, 
for example, when an institution calculates interest on a quarterly 
average daily balance and sends monthly statements. In this case, the 
first two monthly statements would omit annual percentage yield earned 
and interest earned figures; the third monthly statement would reflect 
the interest earned and the annual percentage yield earned for the 
entire quarter.
    2. Length of the period. Institutions must disclose the length of 
both the interest calculation period and the statement period. For 
example, a statement could disclose a statement period of April 16 
through May 15 and further state that ``the interest earned and the 
annual percentage yield earned are based on your average daily balance 
for the period April 1 through April 30.''
    3. Quarterly statements and monthly compounding. Institutions that 
use the average daily balance method to calculate interest on a monthly 
basis and that send statements on a quarterly basis may disclose a 
single interest (and annual percentage yield earned) figure. 
Alternatively, an institution may disclose three interest and three 
annual percentage yield earned figures, one for each month in the 
quarter, as long as the institution states the number of days (or 
beginning and ending dates) in the interest period if different from the 
statement period.

Section 230.7 Payment of interest

    (a)(1) Permissible methods
    1. Prohibited calculation methods. Calculation methods that do not 
comply with the requirement to pay interest on the full amount of 
principal in the account each day include:
    i. Paying interest on the balance in the account at the end of the 
period (the ``ending balance'' method)
    ii. Paying interest for the period based on the lowest balance in 
the account for any day in that period (the ``low balance'' method)
    iii. Paying interest on a percentage of the balance, excluding the 
amount set aside for reserve requirements (the ``investable balance'' 
method)
    2. Use of 365-day basis. Institutions may apply a daily periodic 
rate greater than 1/365 of the interest rate--such as 1/360 of the 
interest rate--as long as it is applied 365 days a year.
    3. Periodic interest payments. An institution can pay interest each 
day on the account and still make uniform interest payments. For 
example, for a one-year certificate of deposit an institution could make 
monthly interest payments equal to 1/12 of the amount of interest that 
will be earned for a 365-day period (or 11 uniform monthly payments--
each equal to roughly 1/12 of the total amount of interest--and one 
payment that accounts for the remainder of the total amount of interest 
earned for the period).
    4. Leap year. Institutions may apply a daily rate of 1/366 or 1/365 
of the interest rate for 366 days in a leap year, if the account will 
earn interest for February 29.
    5. Maturity of time accounts. Institutions are not required to pay 
interest after time accounts mature. Examples include:
    i. During a grace period offered for an automatically renewable time 
account, if consumers decide during that period not to renew the account
    ii. Following the maturity of nonrollover time accounts
    iii. When the maturity date falls on a holiday, and consumers must 
wait until the next business day to obtain the funds
    6. Dormant accounts. Institutions must pay interest on funds in an 
account, even if inactivity or the infrequency of transactions would 
permit the institution to consider the account to be ``inactive'' or 
``dormant'' (or similar status) as defined by state or other law or the 
account contract.
    (a)(2) Determination of minimum balance to earn interest
    1. Daily balance accounts. Institutions that require a minimum 
balance may choose not to pay interest for days when the balance drops 
below the required minimum, if they

[[Page 37]]

use the daily balance method to calculate interest.
    2. Average daily balance accounts. Institutions that require a 
minimum balance may choose not to pay interest for the period in which 
the balance drops below the required minimum, if they use the average 
daily balance method to calculate interest.
    3. Beneficial method. Institutions may not require that consumers 
maintain both a minimum daily balance and a minimum average daily 
balance to earn interest, such as by requiring consumers to maintain a 
$500 daily balance and a prescribed average daily balance (whether 
higher or lower). But an institution could offer a minimum balance to 
earn interest that includes an additional method that is ``unequivocally 
beneficial'' to consumers such as the following: An institution using 
the daily balance method to calculate interest and requiring a $500 
minimum daily balance could offer to pay interest on the account for 
those days the minimum balance is not met as long as consumers maintain 
an average daily balance throughout the month of $400.
    4. Paying on full balance. Institutions must pay interest on the 
full balance in the account that meets the required minimum balance. For 
example, if $300 is the minimum daily balance required to earn interest, 
and a consumer deposits $500, the institution must pay the stated 
interest rate on the full $500 and not just on $200.
    5. Negative balances prohibited. Institutions must treat a negative 
account balance as zero to determine:
    i. The daily or average daily balance on which interest will be paid
    ii. Whether any minimum balance to earn interest is met
    6. Club accounts. Institutions offering club accounts (such as a 
``holiday'' or ``vacation'' club) cannot impose a minimum balance 
requirement for interest based on the total number or dollar amount of 
payments required under the club plan. For example, if a plan calls for 
$10 weekly payments for 50 weeks, the institution cannot set a $500 
``minimum balance'' and then pay interest only if the consumer has made 
all 50 payments.
    7. Minimum balances not affecting interest. Institutions may use the 
daily balance, average daily balance, or any other computation method to 
calculate minimum balance requirements not involving the payment of 
interest--such as to compute minimum balances for assessing fees.
    (b) Compounding and crediting policies
    1. General. Institutions choosing to compound interest may compound 
or credit interest annually, semi-annually, quarterly, monthly, daily, 
continuously, or on any other basis.
    2. Withdrawals prior to crediting date. If consumers withdraw funds 
(without closing the account) prior to a scheduled crediting date, 
institutions may delay paying the accrued interest on the withdrawn 
amount until the scheduled crediting date, but may not avoid paying 
interest.
    3. Closed accounts. Subject to state or other law, an institution 
may choose not to pay accrued interest if consumers close an account 
prior to the date accrued interest is credited, as long as the 
institution has disclosed that fact.
    (c) Date interest begins to accrue
    1. Relation to Regulation CC. Institutions may rely on the Expedited 
Funds Availability Act (EFAA) and Regulation CC (12 CFR part 229) to 
determine, for example, when a deposit is considered made for purposes 
of interest accrual, or when interest need not be paid on funds because 
a deposited check is later returned unpaid.
    2. Ledger and collected balances. Institutions may calculate 
interest by using a ``ledger'' or ``collected'' balance method, as long 
as the crediting requirements of the EFAA are met (12 CFR 229.14).
    3. Withdrawal of principal. Institutions must accrue interest on 
funds until the funds are withdrawn from the account. For example, if a 
check is debited to an account on a Tuesday, the institution must accrue 
interest on those funds through Monday.

Section 230.8 Advertising

    (a) Misleading or inaccurate advertisements
    1. General. All advertisements are subject to the rule against 
misleading or inaccurate advertisements, even though the disclosures 
applicable to various media differ.
    2. Indoor signs. An indoor sign advertising an annual percentage 
yield is not misleading or inaccurate when:
    i. For a tiered-rate account, it also provides the lower dollar 
amount of the tier corresponding to the advertised annual percentage 
yield
    ii. For a time account, it also provides the term required to obtain 
the advertised annual percentage yield
    3. Fees affecting ``free'' accounts. For purposes of determining 
whether an account can be advertised as ``free'' or ``no cost,'' 
maintenance and activity fees include:
    i. Any fee imposed when a minimum balance requirement is not met, or 
when consumers exceed a specified number of transactions
    ii. Transaction and service fees that consumers reasonably expect to 
be imposed on a regular basis
    iii. A flat fee, such as a monthly service fee
    iv. Fees imposed to deposit, withdraw, or transfer funds, including 
per-check or per-transaction charges (for example, $.25 for each 
withdrawal, whether by check or in person)
    4. Other fees. Examples of fees that are not maintenance or activity 
fees include:

[[Page 38]]

    i. Fees not required to be disclosed under Sec. 230.4(b)(4)
    ii. Check printing fees
    iii. Balance inquiry fees
    iv. Stop-payment fees and fees associated with checks returned 
unpaid
    v. Fees assessed against a dormant account
    vi. Fees for ATM or electronic transfer services (such as 
preauthorized transfers or home banking services) not required to obtain 
an account
    5. Similar terms. An advertisement may not use the term ``fees 
waived'' if a maintenance or activity fee may be imposed because it is 
similar to the terms ``free'' or ``no cost.''
    6. Specific account services. Institutions may advertise a specific 
account service or feature as free if no fee is imposed for that service 
or feature. For example, institutions offering an account that is free 
of deposit or withdrawal fees could advertise that fact, as long as the 
advertisement does not mislead consumers by implying that the account is 
free and that no other fee (a monthly service fee, for example) may be 
charged.
    7. Free for limited time. If an account (or a specific account 
service) is free only for a limited period of time--for example, for one 
year following the account opening--the account (or service) may be 
advertised as free if the time period is also stated.
    8. Conditions not related to deposit accounts. Institutions may 
advertise accounts as ``free'' for consumers meeting conditions not 
related to deposit accounts, such as the consumer's age. For example, 
institutions may advertise a NOW account as ``free for persons over 65 
years old,'' even though a maintenance or activity fee is assessed on 
accounts held by consumers 65 or younger.
    9. Electronic advertising. If an electronic advertisement (such as 
an advertisement appearing on an Internet Web site) displays a 
triggering term (such as a bonus or annual percentage yield) the 
advertisement must clearly refer the consumer to the location where the 
additional required information begins. For example, an advertisement 
that includes a bonus or annual percentage yield may be accompanied by a 
link that directly takes the consumer to the additional information.
    10. Examples. Examples of advertisements that would ordinarily be 
misleading, inaccurate, or misrepresent the deposit contract are:
    i. Representing an overdraft service as a ``line of credit,'' unless 
the service is subject to the Board's Regulation Z, 12 CFR part 226.
    ii. Representing that the institution will honor all checks or 
authorize payment of all transactions that overdraw an account, with or 
without a specified dollar limit, when the institution retains 
discretion at any time not to honor checks or authorize transactions.
    iii. Representing that consumers with an overdrawn account are 
allowed to maintain a negative balance when the terms of the account's 
overdraft service require consumers promptly to return the deposit 
account to a positive balance.
    iv. Describing an institution's overdraft service solely as 
protection against bounced checks when the institution also permits 
overdrafts for a fee for overdrawing their accounts by other means, such 
as ATM withdrawals, debit card transactions, or other electronic fund 
transfers.
    v. Advertising an account-related service for which the institution 
charges a fee in an advertisement that also uses the word ``free'' or 
``no cost'' (or a similar term) to describe the account, unless the 
advertisement clearly and conspicuously indicates that there is a cost 
associated with the service. If the fee is a maintenance or activity fee 
under Sec. 230.8(a)(2) of this part, however, an advertisement may not 
describe the account as ``free'' or ``no cost'' (or contain a similar 
term) even if the fee is disclosed in the advertisement.
    11. Additional disclosures in connection with the payment of 
overdrafts. The rule in Sec. 230.3(a), providing that disclosures 
required by Sec. 230.8 may be provided to the consumer in electronic 
form without regard to E-Sign Act requirements, applies to the 
disclosures described in Sec. 230.11(b), which are incorporated by 
reference in Sec. 230.8(f).
    (b) Permissible rates
    1. Tiered-rate accounts. An advertisement for a tiered-rate account 
that states an annual percentage yield must also state the annual 
percentage yield for each tier, along with corresponding minimum balance 
requirements. Any interest rates stated must appear in conjunction with 
the applicable annual percentage yields for each tier.
    2. Stepped-rate accounts. An advertisement that states an interest 
rate for a stepped-rate account must state all the interest rates and 
the time period that each rate is in effect.
    3. Representative examples. An advertisement that states an annual 
percentage yield for a given type of account (such as a time account for 
a specified term) need not state the annual percentage yield applicable 
to other time accounts offered by the institution or indicate that other 
maturity terms are available. In an advertisement stating that rates for 
an account may vary depending on the amount of the initial deposit or 
the term of a time account, institutions need not list each balance 
level and term offered. Instead, the advertisement may:
    i. Provide a representative example of the annual percentage yields 
offered, clearly described as such. For example, if an institution 
offers a $25 bonus on all time accounts and the annual percentage yield 
will vary depending on the term selected, the institution

[[Page 39]]

may provide a disclosure of the annual percentage yield as follows: 
``For example, our 6-month certificate of deposit currently pays a 3.15% 
annual percentage yield.''
    ii. Indicate that various rates are available, such as by stating 
short-term and longer-term maturities along with the applicable annual 
percentage yields: ``We offer certificates of deposit with annual 
percentage yields that depend on the maturity you choose. For example, 
our one-month CD earns a 2.75% APY. Or, earn a 5.25% APY for a three-
year CD.''
    (c) When additional disclosures are required
    1. Trigger terms. The following are examples of information stated 
in advertisements that are not ``trigger'' terms:
    i. ``One, three, and five year CDs available''
    ii. ``Bonus rates available''
    iii. ``1% over our current rates,'' so long as the rates are not 
determinable from the advertisement
    (2) Time annual percentage yield is offered
    1. Specified date. If an advertisement discloses an annual 
percentage yield as of a specified date, that date must be recent in 
relation to the publication or broadcast frequency of the media used, 
taking into account the particular circumstances or production deadlines 
involved. For example, the printing date of a brochure printed once for 
a deposit account promotion that will be in effect for six months would 
be considered ``recent,'' even though rates change during the six-month 
period. Rates published in a daily newspaper or on television must 
reflect rates offered shortly before (or on) the date the rates are 
published or broadcast.
    2. Reference to date of publication. An advertisement may refer to 
the annual percentage yield as being accurate as of the date of 
publication, if the date is on the publication itself. For instance, an 
advertisement in a periodical may state that a rate is ``current through 
the date of this issue,'' if the periodical shows the date.
    (c)(5) Effect of fees
    1. Scope. This requirement applies only to maintenance or activity 
fees described in paragraph 8(a).
    (c)(6) Features of time accounts
    (c)(6)(i) Time requirements
    1. Club accounts. If a club account has a maturity date but the term 
may vary depending on when the account is opened, institutions may use a 
phrase such as: ``The maturity date of this club account is November 15; 
its term varies depending on when the account is opened.''
    (c)(6)(ii) Early withdrawal penalties
    1. Discretionary penalties. Institutions imposing early withdrawal 
penalties on a case-by-case basis may disclose that they ``may'' (rather 
than ``will'') impose a penalty if such a disclosure accurately 
describes the account terms.
    (d) Bonuses
    1. General reference to ``bonus.'' General statements such as 
``bonus checking'' or ``get a bonus when you open a checking account'' 
do not trigger the bonus disclosures.
    (e) Exemption for certain advertisements
    (e)(1) Certain media
    (e)(1)(i)
    1. Internet advertisements. The exemption for advertisements made 
through broadcast or electronic media does not extend to advertisements 
posted on the Internet or sent by e-mail.
    (e)(1)(iii)
    1. Tiered-rate accounts. Solicitations for a tiered-rate account 
made through telephone response machines must provide the annual 
percentage yields and the balance requirements applicable to each tier.
    (e)(2) Indoor signs
    (e)(2)(i)
    1. General. Indoor signs include advertisements displayed on 
computer screens, banners, preprinted posters, and chalk or peg boards. 
Any advertisement inside the premises that can be retained by a consumer 
(such as a brochure or a printout from a computer) is not an indoor 
sign.

Section 230.9 Enforcement and record retention

    (c) Record retention
    1. Evidence of required actions. Institutions comply with the 
regulation by demonstrating that they have done the following:

    i. Established and maintained procedures for paying interest and 
providing timely disclosures as required by the regulation, and
    ii. Retained sample disclosures for each type of account offered to 
consumers, such as account-opening disclosures, copies of 
advertisements, and change-in-term notices; and information regarding 
the interest rates and annual percentage yields offered.
    2. Methods of retaining evidence. Institutions must be able to 
reconstruct the required disclosures or other actions. They need not 
keep disclosures or other business records in hard copy. Records 
evidencing compliance may be retained on microfilm, microfiche, or by 
other methods that reproduce records accurately (including computer 
files).
    3. Payment of interest. Institutions must retain sufficient rate and 
balance information to permit the verification of interest paid on an 
account, including the payment of interest on the full principal 
balance.

Section 230.10 Electronic Communication [Reserved]

Section 230.11 Additional disclosures regarding the payment of 
          overdrafts
    (a) Disclosure of total fees on periodic statements.
    (a)(1) General.

[[Page 40]]

    1. Transfer services. The overdraft services covered by Sec. 
230.11(a)(1) of this part do not include a service providing for the 
transfer of funds from another deposit account of the consumer to permit 
the payment of items without creating an overdraft, even if a fee is 
charged for the transfer.
    2. Fees for paying overdrafts. Institutions must disclose on 
periodic statements a total dollar amount for all fees or charges 
imposed on the account for paying overdrafts. The institution must 
disclose separate totals for the statement period and for the calendar 
year-to-date. The total dollar amount for each of these periods includes 
per-item fees as well as interest charges, daily or other periodic fees, 
or fees charged for maintaining an account in overdraft status, whether 
the overdraft is by check, debit card transaction, or by any other 
transaction type. It also includes fees charged when there are 
insufficient funds because previously deposited funds are subject to a 
hold or are uncollected. It does not include fees for transferring funds 
from another account of the consumer to avoid an overdraft, or fees 
charged under a service subject to the Board's Regulation Z (12 CFR part 
226). See also comment 11(c)-2. Under Sec. 230.11(a)(1)(i), the 
disclosure must describe the total dollar amount for all fees or charges 
imposed on the account for the statement period and calendar year-to-
date for paying overdrafts using the term ``Total Overdraft Fees.'' This 
requirement applies notwithstanding comment 3(a)-2.
    3. Fees for returning items unpaid. The total dollar amount for all 
fees for returning items unpaid must include all fees charged to the 
account for dishonoring or returning checks or other items drawn on the 
account. The institution must disclose separate totals for the statement 
period and for the calendar year-to-date. Fees imposed when deposited 
items are returned are not included. Institutions may use terminology 
such as ``returned item fee'' or ``NSF fee'' to describe fees for 
returning items unpaid.
    4. Waived fees. In some cases, an institution may provide a 
statement for the current period reflecting that fees imposed during a 
previous period were waived and credited to the account. Institutions 
may, but are not required to, reflect the adjustment in the total for 
the calendar year-to-date and in the applicable statement period. For 
example, if an institution assesses a fee in January and refunds the fee 
in February, the institution could disclose a year-to-date total 
reflecting the amount credited, but it should not affect the total 
disclosed for the February statement period, because the fee was not 
assessed in the February statement period. If an institution assesses 
and then waives and credits a fee within the same cycle, the institution 
may, at its option, reflect the adjustment in the total disclosed for 
fees imposed during the current statement period and for the total for 
the calendar year-to-date. Thus, if the institution assesses and waives 
the fee in the February statement period, the February fee total could 
reflect a total net of the waived fee.
    5. Totals for the calendar year to date. Some institutions' 
statement periods do not coincide with the calendar month. In such 
cases, the institution may disclose a calendar year-to-date total by 
aggregating fees for 12 monthly cycles, starting with the period that 
begins during January and finishing with the period that begins during 
December. For example, if statement periods begin on the 10th day of 
each month, the statement covering December 10, 2006 through January 9, 
2007 may disclose the year-to-date total for fees imposed from January 
10, 2006 through January 9, 2007. Alternatively, the institution could 
provide a statement for the cycle ending January 9, 2007 showing the 
year-to-date total for fees imposed January 1, 2006 through December 31, 
2006.
    6. Itemization of fees. An institution may itemize each fee in 
addition to providing the disclosures required by Sec. 230.11(a)(1) of 
this part.
    (a)(3) Time period covered by disclosures
    1. Periodic statement disclosures. The disclosures under section 
230.11(a) must be included on periodic statements provided by an 
institution starting the first statement period that begins after 
January 1, 2010. For example, if a consumer's statement period typically 
closes on the 15th of each month, an institution must provide the 
disclosures required by Sec. 230.11(a)(1) on subsequent periodic 
statements for that consumer beginning with the statement reflecting the 
period from January 16, 2010 to February 15, 2010.

    (b) Advertising Disclosures in Connection With Overdraft Services

    1. Examples of institutions promoting the payment of overdrafts. A 
depository institution would be required to include the advertising 
disclosures in Sec. 230.11(b)(1) of this part if the institution:
    i. Promotes the institution's policy or practice of paying 
overdrafts (unless the service would be subject to the Board's 
Regulation Z (12 CFR part 226)). This includes advertisements using 
print media such as newspapers or brochures, telephone solicitations, 
electronic mail, or messages posted on an Internet site. (But see Sec. 
230.11(b)(2) of this part for communications that are not subject to the 
additional advertising disclosures);
    ii. Includes a message on a periodic statement informing the 
consumer of an overdraft limit or the amount of funds available for 
overdrafts. For example, an institution that includes a message on a 
periodic statement informing the consumer of a $500 overdraft

[[Page 41]]

limit or that the consumer has $300 remaining on the overdraft limit, is 
promoting an overdraft service.
    iii. Discloses an overdraft limit or includes the dollar amount of 
an overdraft limit in a balance disclosed on an automated system, such 
as a telephone response machine, ATM screen or the institution's 
Internet site. (See, however, Sec. 230.11(b)(3) of this part.).
    2. Transfer services. The overdraft services covered by Sec. 
230.11(b)(1) of this part do not include a service providing for the 
transfer of funds from another deposit account of the consumer to permit 
the payment of items without creating an overdraft, even if a fee is 
charged for the transfer.
    3. Electronic media. The exception for advertisements made through 
broadcast or electronic media, such as television or radio, does not 
apply to advertisements posted on an institution's Internet site, on an 
ATM screen, provided on telephone response machines, or sent by 
electronic mail.
    4. Fees. The fees that must be disclosed under Sec. 230.11(b)(1) of 
this part include per-item fees as well as interest charges, daily or 
other periodic fees, and fees charged for maintaining an account in 
overdraft status, whether the overdraft is by check or by other means. 
The fees also include fees charged when there are insufficient funds 
because previously deposited funds are subject to a hold or are 
uncollected. The fees do not include fees for transferring funds from 
another account to avoid an overdraft, or fees charged when the 
institution has previously agreed in writing to pay items that overdraw 
the account and the service is subject to the Board's Regulation Z, 12 
CFR part 226.
    5. Categories of transactions. An exhaustive list of transactions is 
not required. Disclosing that a fee may be imposed for covering 
overdrafts ``created by check, in-person withdrawal, ATM withdrawal, or 
other electronic means' would satisfy the requirements of Sec. 
230.11(b)(1)(ii) of this part where the fee may be imposed in these 
circumstances. See comment 4(b)(4)-5 of this part.
    6. Time period to repay. If a depository institution reserves the 
right to require a consumer to pay an overdraft immediately or on demand 
instead of affording consumers a specific time period to establish a 
positive balance in the account, an institution may comply with Sec. 
230.11(b)(1)(iii) of this part by disclosing this fact.
    7. Circumstances for nonpayment. An institution must describe the 
circumstances under which it will not pay an overdraft. It is sufficient 
to state, as applicable: ``Whether your overdrafts will be paid is 
discretionary and we reserve the right not to pay. For example, we 
typically do not pay overdrafts if your account is not in good standing, 
or you are not making regular deposits, or you have too many 
overdrafts.''
    8. Advertising an account as ``free.'' If the advertised account-
related service is an overdraft service subject to the requirements of 
Sec. 230.11(b)(1) of this part, institutions must disclose the fee or 
fees for the payment of each overdraft, not merely that a cost is 
associated with the overdraft service, as well as other required 
information. Compliance with comment 8(a)-10.v. is not sufficient.
    (c) Disclosure of account balances
    1. Balance that does not include additional amounts. For purposes of 
the balance disclosure requirement in Sec. 230.11(c), if an institution 
discloses balance information to a consumer through an automated system, 
it must disclose a balance that excludes any funds that the institution 
may provide to cover an overdraft pursuant to a discretionary overdraft 
service, that will be paid by the institution under a service subject to 
the Board's Regulation Z (12 CFR part 226), or that will be transferred 
from another account held individually or jointly by a consumer. The 
balance may, but need not, include funds that are deposited in the 
consumer's account, such as from a check, that are not yet made 
available for withdrawal in accordance with the funds availability rules 
under the Board's Regulation CC (12 CFR part 229). In addition, the 
balance may, but need not, include funds that are held by the 
institution to satisfy a prior obligation of the consumer (for example, 
to cover a hold for an ATM or debit card transaction that has been 
authorized but for which the bank has not settled).
    2. Retail sweep programs. In a retail sweep program, an institution 
establishes two legally distinct subaccounts, a transaction subaccount 
and a savings subaccount, which together make up the consumer's account. 
The institution allocates and transfers funds between the two 
subaccounts in order to maximize the balance in the savings account 
while complying with the monthly limitations on transfers out of savings 
accounts under the Board's Regulation D, 12 CFR 204.2(d)(2). Retail 
sweep programs are generally not established for the purpose of covering 
overdrafts. Rather, institutions typically establish retail sweep 
programs by agreement with the consumer, in order for the institution to 
minimize its transaction account reserve requirements and, in some 
cases, to provide a higher interest rate than the consumer would earn on 
a transaction account alone. Section 230.11(c) does not require an 
institution to exclude from the consumer's balance funds that may be 
transferred from another account pursuant to a retail sweep program that 
is established for such purposes and that has the following 
characteristics:
    i. The account involved complies with the Board's Regulation D, 12 
CFR 204.2(d)(2),

[[Page 42]]

    ii. The consumer does not have direct access to the non-transaction 
subaccount that is part of the retail sweep program, and
    iii. The consumer's periodic statements show the account balance as 
the combined balance in the subaccounts.
    3. Additional balance. The institution may disclose additional 
balances supplemented by funds that may be provided by the institution 
to cover an overdraft, whether pursuant to a discretionary overdraft 
service, a service subject to the Board's Regulation Z (12 CFR part 
226), or a service that transfers funds from another account held 
individually or jointly by the consumer, so long as the institution 
prominently states that any additional balance includes these additional 
overdraft amounts. The institution may not simply state, for instance, 
that the second balance is the consumer's ``available balance,'' or 
contains ``available funds.'' Rather, the institution should provide 
enough information to convey that the second balance includes these 
amounts. For example, the institution may state that the balance 
includes ``overdraft funds.'' Where a consumer has not opted into, or as 
applicable, has opted out of the institution's discretionary overdraft 
service, any additional balance disclosed should not include funds that 
otherwise might be available under that service. Where a consumer has 
not opted into, or as applicable, has opted out of, the institution's 
discretionary overdraft service for some, but not all transactions 
(e.g., the consumer has not opted into overdraft services for ATM and 
one-time debit card transactions), an institution that includes these 
additional overdraft funds in the second balance should convey that the 
overdraft funds are not available for all transactions. For example, the 
institution could state that overdraft funds are not available for ATM 
and one-time (or everyday) debit card transactions. Similarly, if funds 
are not available for all transactions pursuant to a service subject to 
the Board's Regulation Z (12 CFR part 226) or a service that transfers 
funds from another account, a second balance that includes such funds 
should also indicate this fact.
    4. Automated systems. The balance disclosure requirement in Sec. 
230.11(c) applies to any automated system through which the consumer 
requests a balance, including, but not limited to, a telephone response 
system, the institution's Internet site, or an ATM. The requirement 
applies whether the institution discloses a balance through an ATM owned 
or operated by the institution or through an ATM not owned or operated 
by the institution (including an ATM operated by a non-depository 
institution). If the balance is obtained at an ATM, the requirement also 
applies whether the balance is disclosed on the ATM screen or on a paper 
receipt.

       Appendix A to Part 230--Annual Percentage Yield Calculation

Part I. Annual Percentage Yield for Account Disclosures and Advertising 
                                Purposes

    1. Rounding for calculations. The following are examples of 
permissible rounding for calculating interest and the annual percentage 
yield:

    i. The daily rate applied to a balance carried to five or more 
decimal places
    ii. The daily interest earned carried to five or more decimal places

     Part II. Annual Percentage Yield Earned for Periodic Statements

    1. Balance method. The interest figure used in the calculation of 
the annual percentage yield earned may be derived from the daily balance 
method or the average daily balance method. The balance used in the 
formula for the annual percentage yield earned is the sum of the 
balances for each day in the period divided by the number of days in the 
period.
    2. Negative balances prohibited. Institutions must treat a negative 
account balance as zero to determine the balance on which the annual 
percentage yield earned is calculated. (See commentary to Sec. 
230.7(a)(2).)

                           A. General Formula

    1. Accrued but uncredited interest. To calculate the annual 
percentage yield earned, accrued but uncredited interest:

    i. May not be included in the balance for statements issued at the 
same time or less frequently than the account's compounding and 
crediting frequency. For example, if monthly statements are sent for an 
account that compounds interest daily and credits interest monthly, the 
balance may not be increased each day to reflect the effect of daily 
compounding.
    ii. Must be included in the balance for succeeding statements if a 
statement is issued more frequently than compounded interest is credited 
on an account. For example, if monthly statements are sent for an 
account that compounds interest daily and credits interest quarterly, 
the balance for the second monthly statement would include interest that 
had accrued for the prior month.
    2. Rounding. The interest earned figure used to calculate the annual 
percentage yield earned must be rounded to two decimals and reflect the 
amount actually paid. For example, if the interest earned for a 
statement period is $20.074 and the institution pays the consumer 
$20.07, the institution must use $20.07 (not $20.074) to calculate the 
annual percentage yield earned. For accounts paying interest based on 
the daily balance method that compound and credit interest quarterly, 
and send monthly statements, the institution may, but need not,

[[Page 43]]

round accrued interest to two decimals for calculating the annual 
percentage yield earned on the first two monthly statements issued 
during the quarter. However, on the quarterly statement the interest 
earned figure must reflect the amount actually paid.

 B. Special Formula for Use Where Periodic Statement is Sent More Often 
            Than the Period for Which Interest is Compounded

    1. Statements triggered by Regulation E. Institutions may, but need 
not, use this formula to calculate the annual percentage yield earned 
for accounts that receive quarterly statements and are subject to 
Regulation E's rule calling for monthly statements when an electronic 
fund transfer has occurred. They may do so even though no monthly 
statement was issued during a specific quarter. But institutions must 
use this formula for accounts that compound and credit interest 
quarterly and receive monthly statements that, while triggered by 
Regulation E, comply with the provisions of Sec. 230.6.
    2. Days in compounding period. Institutions using the special annual 
percentage yield earned formula must use the actual number of days in 
the compounding period.

         Appendix B to Part 230--Model Clauses and Sample Forms

    1. Modifications. Institutions that modify the model clauses will be 
deemed in compliance as long as they do not delete required information 
or rearrange the format in a way that affects the substance or clarity 
of the disclosures.
    2. Format. Institutions may use inserts to a document (see Sample 
Form B-4) or fill-in blanks (see Sample Forms B-5, B-6 and B-7, which 
use underlining to indicate terms that have been filled in) to show 
current rates, fees, or other terms.
    3. Disclosures for opening accounts. The sample forms illustrate the 
information that must be provided to consumers when an account is 
opened, as required by Sec. 230.4(a)(1). (See Sec. 230.4(a)(2), which 
states the requirements for disclosing the annual percentage yield, the 
interest rate, and the maturity of a time account in responding to a 
consumer's request.)
    4. Compliance with Regulation E. Institutions may satisfy certain 
requirements under Regulation DD with disclosures that meet the 
requirements of Regulation E. (See Sec. 230.3(c).) For disclosures 
covered by both this regulation and Regulation E (such as the amount of 
fees for ATM usage, institutions should consult appendix A to Regulation 
E for appropriate model clauses.
    5. Duplicate disclosures. If a requirement such as a minimum balance 
applies to more than one account term (to obtain a bonus and determine 
the annual percentage yield, for example), institutions need not repeat 
the requirement for each term, as long as it is clear which terms the 
requirement applies to.
    6. Sample forms. The sample forms (B-4 through B-8) serve a purpose 
different from the model clauses. They illustrate ways of adapting the 
model clauses to specific accounts. The clauses shown relate only to the 
specific transactions described.

                B-1 Model Clauses for Account Disclosures

              B-1(h) Disclosures Relating to Time Accounts

    1. Maturity. The disclosure in Clause (h)(i) stating a specific date 
may be used in all cases. The statement describing a time period is 
appropriate only when providing disclosures in response to a consumer's 
request.

                  B-2 Model Clauses for Change in Terms

    1. General. The second clause, describing a future decrease in the 
interest rate and annual percentage yield, applies to fixed-rate 
accounts only.

                   B-4 Sample Form (Multiple Accounts)

    1. Rate sheet insert. In the rate sheet insert, the calculations of 
the annual percentage yield for the three-month and six-month 
certificates are based on 92 days and 181 days respectively. All 
calculations in the insert assume daily compounding.

           B-6 Sample Form (Tiered-Rate Money Market Account)

    1. General. Sample Form B-6 uses Tiering Method A (discussed in 
appendix A and Clause (a)(iv)) to calculate interest. It gives a 
narrative description of a tiered-rate account; institutions may use 
different formats (for example, a chart similar to the one in Sample 
Form B-4), as long as all required information for each tier is clearly 
presented. The form does not contain a separate disclosure of the 
minimum balance required to obtain the annual percentage yield; the 
tiered-rate disclosure provides that information.

[Reg. DD, 59 FR 40221, Aug. 8, 1994, as amended at 59 FR 52658, Oct. 19, 
1994; 63 FR 52107, Sept. 29, 1998; 66 FR 17803, Apr. 4, 2001; 70 FR 
29594, May 24, 2005; 72 FR 63484, Nov. 9, 2007; 74 FR 5594, Jan. 29, 
2009; 75 FR 31676, June 4, 2010; 76 FR 42020, July 18, 2011]



PART 231_NETTING ELIGIBILITY FOR FINANCIAL INSTITUTION (REGULATION EE)
--Table of Contents



Sec.
231.1 Authority, purpose, and scope.
231.2 Definitions.

[[Page 44]]

231.3 Qualification as a financial institution.

    Authority: 12 U.S.C. 4402(1)(B) and 4402(9).

    Source: Reg. EE, 59 FR 4784, Feb. 2, 1994, unless otherwise noted.



Sec. 231.1  Authority, purpose, and scope.

    (a) Authority. This part (Regulation EE; 12 CFR part 231) is issued 
by the Board of Governors of the Federal Reserve System under the 
authority of sections 402(1)(B) and 402(9) of the Federal Deposit 
Insurance Corporation Improvement Act of 1991 (12 U.S.C. 4402(1)(B) and 
4402(9)).
    (b) Purpose and scope. The purpose of the Act and this part is to 
enhance efficiency and reduce systemic risk in the financial markets. 
This part expands the Act's definition of ``financial institution'' to 
allow more financial market participants to avail themselves of the 
netting provisions set forth in sections 401-407 of the Act (12 U.S.C. 
4401-4407). This part does not affect the status of those financial 
institutions specifically defined in the Act.



Sec. 231.2  Definitions.

    As used in this part, unless the context requires otherwise:
    (a) Act means the Federal Deposit Insurance Corporation Improvement 
Act of 1991 (Pub. L. 102-242, 105 Stat. 2236), as amended.
    (b) Affiliate, with respect to a person, means any other person that 
controls, is controlled by, or is under common control with the person.
    (c) Financial contract means a qualified financial contract as 
defined in section 11(e)(8)(D) of the Federal Deposit Insurance Act (12 
U.S.C. 1821(e)(8)(D)), as amended, except that a forward contract 
includes a contract with a maturity date two days or less after the date 
the contract is entered into (i.e., a ``spot'' contract).
    (d) Financial market means a market for a financial contract.
    (e) Gross mark-to-market positions in one or more financial 
contracts means the sum of the absolute values of positions in those 
contracts, adjusted to reflect the market values of those positions in 
accordance with the methods used by the parties to each contract to 
value the contract.
    (f) Person means any legal entity, foreign or domestic, including a 
corporation, unincorporated company, partnership, government unit or 
instrumentality, trust, natural person, or any other entity or 
organization.



Sec. 231.3  Qualification as a financial institution.

    (a) A person qualifies as a financial institution for purposes of 
sections 401-407 of the Act if it represents, orally or in writing, that 
it will engage in financial contracts as a counterparty on both sides of 
one or more financial markets and either--
    (1) Had one or more financial contracts of a total gross dollar 
value of at least $1 billion in notional principal amount outstanding on 
any day during the previous 15-month period with counterparties that are 
not its affiliates; or
    (2) Had total gross mark-to-market positions of at least $100 
million (aggregated across counterparties) in one or more financial 
contracts on any day during the previous 15-month period with 
counterparties that are not its affiliates.
    (b) If a person qualifies as a financial institution under paragraph 
(a) of this section, that person will be considered a financial 
institution for the purposes of any contract entered into during the 
period it qualifies, even if the person subsequently fails to qualify.
    (c) If a person qualifies as a financial institution under paragraph 
(a) of this section on March 7, 1994, that person will be considered a 
financial institution for the purposes of any outstanding contract 
entered into prior to March 7, 1994.

[Reg. EE, 59 FR 4784, Feb. 2, 1994, as amended at 61 FR 1274, Jan. 19, 
1996]



PART 232_OBTAINING AND USING MEDICAL INFORMATION IN CONNECTION WITH 
CREDIT (REGULATION FF)--Table of Contents



Sec.
232.1 Scope, General Prohibition and Definitions
232.2 Rule of Construction for Obtaining and Using Unsolicited Medical 
          Information

[[Page 45]]

232.3 Financial Information Exception for Obtaining and Using Medical 
          Information
232.4 Specific Exceptions for Obtaining and Using Medical Information

    Authority: 15 U.S.C. 1681b.

    Source: 70 FR 70682, Nov. 22, 2005, unless otherwise noted.



Sec. 232.1  Scope, General Prohibition and Definitions

    (a) Scope. This part applies to creditors, as defined in paragraph 
(c)(3) of this section, except for creditors that are subject to 
Sec. Sec. 41.30, 222.30, 334.30, 571.30, or 717.30.
    (b) In general. A creditor may not obtain or use medical information 
pertaining to a consumer in connection with any determination of the 
consumer's eligibility, or continued eligibility, for credit, except as 
provided in this section.
    (c) Definitions. (1) Consumer means an individual.
    (2) Credit has the same meaning as in section 702 of the Equal 
Credit Opportunity Act, 15 U.S.C. 1691a.
    (3) Creditor has the same meaning as in section 702 of the Equal 
Credit Opportunity Act, 15 U.S.C. 1691a.
    (4) Eligibility, or continued eligibility, for credit means the 
consumer's qualification or fitness to receive, or continue to receive, 
credit, including the terms on which credit is offered. The term does 
not include:
    (i) Any determination of the consumer's qualification or fitness for 
employment, insurance (other than a credit insurance product), or other 
non-credit products or services;
    (ii) Authorizing, processing, or documenting a payment or 
transaction on behalf of the consumer in a manner that does not involve 
a determination of the consumer's eligibility, or continued eligibility, 
for credit; or
    (iii) Maintaining or servicing the consumer's account in a manner 
that does not involve a determination of the consumer's eligibility, or 
continued eligibility, for credit.
    (5) Medical information means:
    (i) Information or data, whether oral or recorded, in any form or 
medium, created by or derived from a health care provider or the 
consumer, that relates to--
    (A) The past, present, or future physical, mental, or behavioral 
health or condition of an individual;
    (B) The provision of health care to an individual; or
    (C) The payment for the provision of health care to an individual.
    (ii) The term does not include:
    (A) The age or gender of a consumer;
    (B) Demographic information about the consumer, including a 
consumer's residence address or e-mail address;
    (C) Any other information about a consumer that does not relate to 
the physical, mental, or behavioral health or condition of a consumer, 
including the existence or value of any insurance policy; or
    (D) Information that does not identify a specific consumer.
    (6) Person means any individual, partnership, corporation, trust, 
estate cooperative, association, government or governmental subdivision 
or agency, or other entity.



Sec. 232.2  Rule of construction for obtaining and using unsolicited
medical information.

    (a) In general. A creditor does not obtain medical information in 
violation of the prohibition if it receives medical information 
pertaining to a consumer in connection with any determination of the 
consumer's eligibility, or continued eligibility, for credit without 
specifically requesting medical information.
    (b) Use of unsolicited medical information. A creditor that receives 
unsolicited medical information in the manner described in paragraph (a) 
of this section may use that information in connection with any 
determination of the consumer's eligibility, or continued eligibility, 
for credit to the extent the creditor can rely on at least one of the 
exceptions in Sec. 232.3 or Sec. 232.4.
    (c) Examples. A creditor does not obtain medical information in 
violation of the prohibition if, for example:
    (1) In response to a general question regarding a consumer's debts 
or expenses, the creditor receives information that the consumer owes a 
debt to a hospital.

[[Page 46]]

    (2) In a conversation with the creditor's loan officer, the consumer 
informs the creditor that the consumer has a particular medical 
condition.
    (3) In connection with a consumer's application for an extension of 
credit, the creditor requests a consumer report from a consumer 
reporting agency and receives medical information in the consumer report 
furnished by the agency even though the creditor did not specifically 
request medical information from the consumer reporting agency.



Sec. 232.3  Financial information exception for obtaining and using
medical information.

    (a) In general. A creditor may obtain and use medical information 
pertaining to a consumer in connection with any determination of the 
consumer's eligibility, or continued eligibility, for credit so long as:
    (1) The information is the type of information routinely used in 
making credit eligibility determinations, such as information relating 
to debts, expenses, income, benefits, assets, collateral, or the purpose 
of the loan, including the use of proceeds;
    (2) The creditor uses the medical information in a manner and to an 
extent that is no less favorable than it would use comparable 
information that is not medical information in a credit transaction; and
    (3) The creditor does not take the consumer's physical, mental, or 
behavioral health, condition or history, type of treatment, or prognosis 
into account as part of any such determination.
    (b) Examples--(1) Examples of the types of information routinely 
used in making credit eligibility determinations. Paragraph (a)(1) of 
this section permits a creditor, for example, to obtain and use 
information about:
    (i) The dollar amount, repayment terms, repayment history, and 
similar information regarding medical debts to calculate, measure, or 
verify the repayment ability of the consumer, the use of proceeds, or 
the terms for granting credit;
    (ii) The value, condition, and lien status of a medical device that 
may serve as collateral to secure a loan;
    (iii) The dollar amount and continued eligibility for disability 
income, workers' compensation income, or other benefits related to 
health or a medical condition that is relied on as a source of 
repayment; or
    (iv) The identity of creditors to whom outstanding medical debts are 
owed in connection with an application for credit, including but not 
limited to, a transaction involving the consolidation of medical debts.
    (2) Examples of uses of medical information consistent with the 
exception. (i) A consumer includes on an application for credit 
information about two $20,000 debts. One debt is to a hospital; the 
other debt is to a retailer. The creditor contacts the hospital and the 
retailer to verify the amount and payment status of the debts. The 
creditor learns that both debts are more than 90 days past due. Any two 
debts of this size that are more than 90 days past due would disqualify 
the consumer under the creditor's established underwriting criteria. The 
creditor denies the application on the basis that the consumer has a 
poor repayment history on outstanding debts. The creditor has used 
medical information in a manner and to an extent no less favorable than 
it would use comparable non-medical information.
    (ii) A consumer indicates on an application for a $200,000 mortgage 
loan that she receives $15,000 in long-term disability income each year 
from her former employer and has no other income. Annual income of 
$15,000, regardless of source, would not be sufficient to support the 
requested amount of credit. The creditor denies the application on the 
basis that the projected debt-to-income ratio of the consumer does not 
meet the creditor's underwriting criteria. The creditor has used medical 
information in a manner and to an extent that is no less favorable than 
it would use comparable non-medical information.
    (iii) A consumer includes on an application for a $10,000 home 
equity loan that he has a $50,000 debt to a medical facility that 
specializes in treating a potentially terminal disease. The creditor 
contacts the medical facility to verify the debt and obtain the 
repayment history and current status of the

[[Page 47]]

loan. The creditor learns that the debt is current. The applicant meets 
the income and other requirements of the creditor's underwriting 
guidelines. The creditor grants the application. The creditor has used 
medical information in accordance with the exception.
    (3) Examples of uses of medical information inconsistent with the 
exception. (i) A consumer applies for $25,000 of credit and includes on 
the application information about a $50,000 debt to a hospital. The 
creditor contacts the hospital to verify the amount and payment status 
of the debt, and learns that the debt is current and that the consumer 
has no delinquencies in her repayment history. If the existing debt were 
instead owed to a retail department store, the creditor would approve 
the application and extend credit based on the amount and repayment 
history of the outstanding debt. The creditor, however, denies the 
application because the consumer is indebted to a hospital. The creditor 
has used medical information, here the identity of the medical creditor, 
in a manner and to an extent that is less favorable than it would use 
comparable non-medical information.
    (ii) A consumer meets with a loan officer of a creditor to apply for 
a mortgage loan. While filling out the loan application, the consumer 
informs the loan officer orally that she has a potentially terminal 
disease. The consumer meets the creditor's established requirements for 
the requested mortgage loan. The loan officer recommends to the credit 
committee that the consumer be denied credit because the consumer has 
that disease. The credit committee follows the loan officer's 
recommendation and denies the application because the consumer has a 
potentially terminal disease. The creditor has used medical information 
in a manner inconsistent with the exception by taking into account the 
consumer's physical, mental, or behavioral health, condition, or 
history, type of treatment, or prognosis as part of a determination of 
eligibility or continued eligibility for credit.
    (iii) A consumer who has an apparent medical condition, such as a 
consumer who uses a wheelchair or an oxygen tank, meets with a loan 
officer to apply for a home equity loan. The consumer meets the 
creditor's established requirements for the requested home equity loan 
and the creditor typically does not require consumers to obtain a debt 
cancellation contract, debt suspension agreement, or credit insurance 
product in connection with such loans. However, based on the consumer's 
apparent medical condition, the loan officer recommends to the credit 
committee that credit be extended to the consumer only if the consumer 
obtains a debt cancellation contract, debt suspension agreement, or 
credit insurance product from a nonaffiliated third party. The credit 
committee agrees with the loan officer's recommendation. The loan 
officer informs the consumer that the consumer must obtain a debt 
cancellation contract, debt suspension agreement, or credit insurance 
product from a nonaffiliated third party to qualify for the loan. The 
consumer obtains one of these products and the creditor approves the 
loan. The creditor has used medical information in a manner inconsistent 
with the exception by taking into account the consumer's physical, 
mental, or behavioral health, condition, or history, type of treatment, 
or prognosis in setting conditions on the consumer's eligibility for 
credit.



Sec. 232.4  Specific exceptions for obtaining and using medical 
information.

    (a) In general. A creditor may obtain and use medical information 
pertaining to a consumer in connection with any determination of the 
consumer's eligibility, or continued eligibility, for credit:
    (1) To determine whether the use of a power of attorney or legal 
representative that is triggered by a medical condition or event is 
necessary and appropriate or whether the consumer has the legal capacity 
to contract when a person seeks to exercise a power of attorney or act 
as legal representative for a consumer based on an asserted medical 
condition or event;
    (2) To comply with applicable requirements of local, state, or 
Federal laws;
    (3) To determine, at the consumer's request, whether the consumer 
qualifies for a legally permissible special

[[Page 48]]

credit program or credit-related assistance program that is--
    (i) Designed to meet the special needs of consumers with medical 
conditions; and
    (ii) Established and administered pursuant to a written plan that--
    (A) Identifies the class of persons that the program is designed to 
benefit; and
    (B) Sets forth the procedures and standards for extending credit or 
providing other credit-related assistance under the program;
    (4) To the extent necessary for purposes of fraud prevention or 
detection;
    (5) In the case of credit for the purpose of financing medical 
products or services, to determine and verify the medical purpose of a 
loan and the use of proceeds;
    (6) Consistent with safe and sound practices, if the consumer or the 
consumer's legal representative specifically requests that the creditor 
use medical information in determining the consumer's eligibility, or 
continued eligibility, for credit, to accommodate the consumer's 
particular circumstances, and such request is documented by the 
creditor;
    (7) Consistent with safe and sound practices, to determine whether 
the provisions of a forbearance practice or program that is triggered by 
a medical condition or event apply to a consumer;
    (8) To determine the consumer's eligibility for, the triggering of, 
or the reactivation of a debt cancellation contract or debt suspension 
agreement if a medical condition or event is a triggering event for the 
provision of benefits under the contract or agreement; or
    (9) To determine the consumer's eligibility for, the triggering of, 
or the reactivation of a credit insurance product if a medical condition 
or event is a triggering event for the provision of benefits under the 
product.
    (b) Example of determining eligibility for a special credit program 
or credit assistance program. A not-for-profit organization establishes 
a credit assistance program pursuant to a written plan that is designed 
to assist disabled veterans in purchasing homes by subsidizing the down 
payment for the home purchase mortgage loans of qualifying veterans. The 
organization works through mortgage lenders and requires mortgage 
lenders to obtain medical information about the disability of any 
consumer that seeks to qualify for the program, use that information to 
verify the consumer's eligibility for the program, and forward that 
information to the organization. A consumer who is a veteran applies to 
a creditor for a home purchase mortgage loan. The creditor informs the 
consumer about the credit assistance program for disabled veterans and 
the consumer seeks to qualify for the program. Assuming that the program 
complies with all applicable law, including applicable fair lending 
laws, the creditor may obtain and use medical information about the 
medical condition and disability, if any, of the consumer to determine 
whether the consumer qualifies for the credit assistance program.
    (c) Examples of verifying the medical purpose of the loan or the use 
of proceeds. (1) If a consumer applies for $10,000 of credit for the 
purpose of financing vision correction surgery, the creditor may verify 
with the surgeon that the procedure will be performed. If the surgeon 
reports that surgery will not be performed on the consumer, the creditor 
may use that medical information to deny the consumer's application for 
credit, because the loan would not be used for the stated purpose.
    (2) If a consumer applies for $10,000 of credit for the purpose of 
financing cosmetic surgery, the creditor may confirm the cost of the 
procedure with the surgeon. If the surgeon reports that the cost of the 
procedure is $5,000, the creditor may use that medical information to 
offer the consumer only $5,000 of credit.
    (3) A creditor has an established medical loan program for financing 
particular elective surgical procedures. The creditor receives a loan 
application from a consumer requesting $10,000 of credit under the 
established loan program for an elective surgical procedure. The 
consumer indicates on the application that the purpose of the loan is to 
finance an elective surgical procedure not eligible for funding under 
the guidelines of the established

[[Page 49]]

loan program. The creditor may deny the consumer's application because 
the purpose of the loan is not for a particular procedure funded by the 
established loan program.
    (d) Examples of obtaining and using medical information at the 
request of the consumer. (1) If a consumer applies for a loan and 
specifically requests that the creditor consider the consumer's medical 
disability at the relevant time as an explanation for adverse payment 
history information in his credit report, the creditor may consider such 
medical information in evaluating the consumer's willingness and ability 
to repay the requested loan to accommodate the consumer's particular 
circumstances, consistent with safe and sound practices. The creditor 
may also decline to consider such medical information to accommodate the 
consumer, but may evaluate the consumer's application in accordance with 
its otherwise applicable underwriting criteria. The creditor may not 
deny the consumer's application or otherwise treat the consumer less 
favorably because the consumer specifically requested a medical 
accommodation, if the creditor would have extended the credit or treated 
the consumer more favorably under the creditor's otherwise applicable 
underwriting criteria.
    (2) If a consumer applies for a loan by telephone and explains that 
his income has been and will continue to be interrupted on account of a 
medical condition and that he expects to repay the loan liquidating 
assets, the creditor may, but is not required to, evaluate the 
application using the sale of assets as the primary source of repayment, 
consistent with safe and sound practices, provided that the creditor 
documents the consumer's request by recording the oral conversation or 
making a notation of the request in the consumer's file.
    (3) If a consumer applies for a loan and the application form 
provides a space where the consumer may provide any other information or 
special circumstances, whether medical or non-medical, that the consumer 
would like the creditor to consider in evaluating the consumer's 
application, the creditor may use medical information provided by the 
consumer in that space on that application to accommodate the consumer's 
application for credit, consistent with safe and sound practices, or may 
disregard that information.
    (4) If a consumer specifically requests that the creditor use 
medical information in determining the consumer's eligibility, or 
continued eligibility, for credit and provides the creditor with medical 
information for that purpose, and the creditor determines that it needs 
additional information regarding the consumer's circumstances, the 
creditor may request, obtain, and use additional medical information 
about the consumer as necessary to verify the information provided by 
the consumer or to determine whether to make an accommodation for the 
consumer. The consumer may decline to provide additional information, 
withdraw the request for an accommodation, and have the application 
considered under the creditor's otherwise applicable underwriting 
criteria.
    (5) If a consumer completes and signs a credit application that is 
not for medical purpose credit and the application contains boilerplate 
language that routinely requests medical information from the consumer 
or that indicates that by applying for credit the consumer authorizes or 
consents to the creditor obtaining and using medical information in 
connection with a determination of the consumer's eligibility, or 
continued eligibility, for credit, the consumer has not specifically 
requested that the creditor obtain and use medical information to 
accommodate the consumer's particular circumstances.
    (e) Example of a forbearance practice or program. After an 
appropriate safety and soundness review, a creditor institutes a program 
that allows consumers who are or will be hospitalized to defer payments 
as needed for up to three months, without penalty, if the credit account 
has been open for more than one year and has not previously been in 
default, and the consumer provides confirming documentation at an 
appropriate time. A consumer is hospitalized and does not pay her bill 
for a particular month. This consumer has had a credit account with the 
creditor for more than one year and has not previously been in default. 
The creditor

[[Page 50]]

attempts to contact the consumer and speaks with the consumer's adult 
child, who is not the consumer's legal representative. The adult child 
informs the creditor that the consumer is hospitalized and is unable to 
pay the bill at that time. The creditor defers payments for up to three 
months, without penalty, for the hospitalized consumer and sends the 
consumer a letter confirming this practice and the date on which the 
next payment will be due. The creditor has obtained and used medical 
information to determine whether the provisions of a medically-triggered 
forbearance practice or program apply to a consumer.



PART 233_PROHIBITION ON FUNDING OF UNLAWFUL INTERNET GAMBLING 
(REGULATION GG)--Table of Contents



Sec.
233.1 Authority, purpose, collection of information, and incorporation 
          by reference.
233.2 Definitions.
233.3 Designated payment systems.
233.4 Exemptions.
233.5 Policies and procedures required.
233.6 Non-exclusive examples of policies and procedures.
233.7 Regulatory enforcement.

Appendix A to Part 233--Model Notice

    Authority: 31 U.S.C. 5364.

    Source: Reg. GG, 73 FR 69405, Nov. 18, 2008, unless otherwise noted.



Sec. 233.1  Authority, purpose, collection of information, and 
incorporation by reference.

    (a) Authority. This part is issued jointly by the Board of Governors 
of the Federal Reserve System (Board) and the Secretary of the 
Department of the Treasury (Treasury) under section 802 of the Unlawful 
Internet Gambling Enforcement Act of 2006 (Act) (enacted as Title VIII 
of the Security and Accountability For Every Port Act of 2006, Pub. L. 
No. 109-347, 120 Stat. 1884, and codified at 31 U.S.C. 5361-5367). The 
Act states that none of its provisions shall be construed as altering, 
limiting, or extending any Federal or State law or Tribal-State compact 
prohibiting, permitting, or regulating gambling within the United 
States. See 31 U.S.C. 5361(b). In addition, the Act states that its 
provisions are not intended to change which activities related to 
horseracing may or may not be allowed under Federal law, are not 
intended to change the existing relationship between the Interstate 
Horseracing Act of 1978 (IHA) (15 U.S.C. 3001 et seq.) and other Federal 
statutes in effect on October 13, 2006, the date of the Act's enactment, 
and are not intended to resolve any existing disagreements over how to 
interpret the relationship between the IHA and other Federal statutes. 
See 31 U.S.C. 5362(10)(D)(iii). This part is intended to be consistent 
with these provisions.
    (b) Purpose. The purpose of this part is to issue implementing 
regulations as required by the Act. The part sets out necessary 
definitions, designates payment systems subject to the requirements of 
this part, exempts certain participants in designated payment systems 
from certain requirements of this part, provides nonexclusive examples 
of policies and procedures reasonably designed to identify and block, or 
otherwise prevent and prohibit, restricted transactions, and sets out 
the Federal entities that have exclusive regulatory enforcement 
authority with respect to the designated payments systems and non-exempt 
participants therein.
    (c) Collection of information. The Office of Management and Budget 
(OMB) has approved the collection of information requirements in this 
part for the Department of the Treasury and assigned OMB control number 
1505-0204. The Board has approved the collection of information 
requirements in this part under the authority delegated to the Board by 
OMB, and assigned OMB control number 7100-0317.
    (d) Incorporation by reference--relevant definitions from ACH rules. 
(1) This part incorporates by reference the relevant definitions of ACH 
terms as published in the ``2008 ACH Rules: A Complete Guide to Rules & 
Regulations Governing the ACH Network'' (the ``ACH Rules''). The 
Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
of the ``2008 ACH Rules'' are available from the National Automated 
Clearing House Association, Suite 100, 13450

[[Page 51]]

Sunrise Valley Drive, Herndon, Virginia 20171, http://nacha.org, (703) 
561-1100. Copies also are available for public inspection at the 
Department of Treasury Library, Room 1428, Main Treasury Building, 1500 
Pennsylvania Avenue, NW., Washington, DC 20220, and the National 
Archives and Records Administration (NARA). Before visiting the Treasury 
library, you must call (202) 622-0990 for an appointment. For 
information on the availability of this material at NARA, call (202) 
741-6030, or go to: http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html 20002.
    (2) Any amendment to definitions of the relevant ACH terms in the 
ACH Rules shall not apply to this part unless the Treasury and the Board 
jointly accept such amendment by publishing notice of acceptance of the 
amendment to this part in the Federal Register. An amendment to the 
definition of a relevant ACH term in the ACH Rules that is accepted by 
the Treasury and the Board shall apply to this part on the effective 
date of the rulemaking specified by the Treasury and the Board in the 
joint Federal Register notice expressly accepting such amendment.



Sec. 233.2  Definitions.

    The following definitions apply solely for purposes of this part:
    (a) Actual knowledge with respect to a transaction or commercial 
customer means when a particular fact with respect to that transaction 
or commercial customer is known by or brought to the attention of:
    (1) An individual in the organization responsible for the 
organization's compliance function with respect to that transaction or 
commercial customer; or
    (2) An officer of the organization.
    (b) Automated clearing house system or ACH system means a funds 
transfer system, primarily governed by the ACH Rules, which provides for 
the clearing and settlement of batched electronic entries for 
participating financial institutions. When referring to ACH systems, the 
terms in this regulation (such as ``originating depository financial 
institution,'' ``operator,'' ``originating gateway operator,'' 
``receiving depository financial institution,'' ``receiving gateway 
operator,'' and ``third-party sender'') are defined as those terms are 
defined in the ACH Rules.
    (c) Bet or wager:
    (1) Means the staking or risking by any person of something of value 
upon the outcome of a contest of others, a sporting event, or a game 
subject to chance, upon an agreement or understanding that the person or 
another person will receive something of value in the event of a certain 
outcome;
    (2) Includes the purchase of a chance or opportunity to win a 
lottery or other prize (which opportunity to win is predominantly 
subject to chance);
    (3) Includes any scheme of a type described in 28 U.S.C. 3702;
    (4) Includes any instructions or information pertaining to the 
establishment or movement of funds by the bettor or customer in, to, or 
from an account with the business of betting or wagering (which does not 
include the activities of a financial transaction provider, or any 
interactive computer service or telecommunications service); and
    (5) Does not include--
    (i) Any activity governed by the securities laws (as that term is 
defined in section 3(a)(47) of the Securities Exchange Act of 1934 (15 
U.S.C. 78c(a)(47)) for the purchase or sale of securities (as that term 
is defined in section 3(a)(10) of that act (15 U.S.C. 78c(a)(10));
    (ii) Any transaction conducted on or subject to the rules of a 
registered entity or exempt board of trade under the Commodity Exchange 
Act (7 U.S.C. 1 et seq.);
    (iii) Any over-the-counter derivative instrument;
    (iv) Any other transaction that--
    (A) Is excluded or exempt from regulation under the Commodity 
Exchange Act (7 U.S.C. 1 et seq.); or
    (B) Is exempt from State gaming or bucket shop laws under section 
12(e) of the Commodity Exchange Act (7 U.S.C. 16(e)) or section 28(a) of 
the Securities Exchange Act of 1934 (15 U.S.C. 78bb(a));
    (v) Any contract of indemnity or guarantee;
    (vi) Any contract for insurance;
    (vii) Any deposit or other transaction with an insured depository 
institution;

[[Page 52]]

    (viii) Participation in any game or contest in which participants do 
not stake or risk anything of value other than--
    (A) Personal efforts of the participants in playing the game or 
contest or obtaining access to the Internet; or
    (B) Points or credits that the sponsor of the game or contest 
provides to participants free of charge and that can be used or redeemed 
only for participation in games or contests offered by the sponsor; or
    (ix) Participation in any fantasy or simulation sports game or 
educational game or contest in which (if the game or contest involves a 
team or teams) no fantasy or simulation sports team is based on the 
current membership of an actual team that is a member of an amateur or 
professional sports organization (as those terms are defined in 28 
U.S.C. 3701) and that meets the following conditions:
    (A) All prizes and awards offered to winning participants are 
established and made known to the participants in advance of the game or 
contest and their value is not determined by the number of participants 
or the amount of any fees paid by those participants.
    (B) All winning outcomes reflect the relative knowledge and skill of 
the participants and are determined predominantly by accumulated 
statistical results of the performance of individuals (athletes in the 
case of sports events) in multiple real-world sporting or other events.
    (C) No winning outcome is based--
    (1) On the score, point-spread, or any performance or performances 
of any single real-world team or any combination of such teams, or
    (2) Solely on any single performance of an individual athlete in any 
single real-world sporting or other event.
    (d) Block means to reject a particular transaction before or during 
processing, but it does not require freezing or otherwise prohibiting 
subsequent transfers or transactions regarding the proceeds or account.
    (e) Card issuer means any person who issues a credit card, debit 
card, pre-paid card, or stored value card, or the agent of such person 
with respect to such card.
    (f) Card system means a system for authorizing, clearing and 
settling transactions in which credit cards, debit cards, pre-paid 
cards, or stored value cards (such cards being issued or authorized by 
the operator of the system), are used to purchase goods or services or 
to obtain a cash advance. The term includes systems both in which the 
merchant acquirer, card issuer, and system operator are separate 
entities and in which more than one of these roles are performed by the 
same entity.
    (g) Check clearing house means an association of banks or other 
payors that regularly exchange checks for collection or return.
    (h) Check collection system means an interbank system for 
collecting, presenting, returning, and settling for checks or intrabank 
system for settling for checks deposited in and drawn on the same bank. 
When referring to check collection systems, the terms in this regulation 
(such as ``paying bank,'' ``collecting bank,'' ``depositary bank,'' 
``returning bank,'' and ``check'') are defined as those terms are 
defined in 12 CFR 229.2. For purposes of this part, ``check'' also 
includes an electronic representation of a check that a bank agrees to 
handle as a check.
    (i) Commercial customer means a person that is not a consumer and 
that contracts with a non-exempt participant in a designated payment 
system to receive, or otherwise accesses, payment transaction services 
through that non-exempt participant.
    (j) Consumer means a natural person.
    (k) Designated payment system means a system listed in Sec. ----.3.
    (l) Electronic fund transfer has the same meaning given the term in 
section 903 of the Electronic Fund Transfer Act (15 U.S.C. 1693a), 
except that such term includes transfers that would otherwise be 
excluded under section 903(6)(E) of that act (15 U.S.C. 1693a(6)(E)), 
and includes any funds transfer covered by Article 4A of the Uniform 
Commercial Code, as in effect in any State.
    (m) Financial institution means a State or national bank, a State or 
Federal savings and loan association, a

[[Page 53]]

mutual savings bank, a State or Federal credit union, or any other 
person that, directly or indirectly, holds an account belonging to a 
consumer. The term does not include a casino, sports book, or other 
business at or through which bets or wagers may be placed or received.
    (n) Financial transaction provider means a creditor, credit card 
issuer, financial institution, operator of a terminal at which an 
electronic fund transfer may be initiated, money transmitting business, 
or international, national, regional, or local payment network utilized 
to effect a credit transaction, electronic fund transfer, stored value 
product transaction, or money transmitting service, or a participant in 
such network, or other participant in a designated payment system.
    (o) Foreign banking office means:
    (1) Any non-U.S. office of a financial institution; and
    (2) Any non-U.S. office of a foreign bank as described in 12 U.S.C. 
3101(7).
    (p) Interactive computer service means any information service, 
system, or access software provider that provides or enables computer 
access by multiple users to a computer server, including specifically a 
service or system that provides access to the Internet and such systems 
operated or services offered by libraries or educational institutions.
    (q) Internet means the international computer network of 
interoperable packet switched data networks.
    (r) Internet gambling business means the business of placing, 
receiving or otherwise knowingly transmitting a bet or wager by any 
means which involves the use, at least in part, of the Internet, but 
does not include the performance of the customary activities of a 
financial transaction provider, or any interactive computer service or 
telecommunications service.
    (s) Intrastate transaction means placing, receiving, or otherwise 
transmitting a bet or wager where--
    (1) The bet or wager is initiated and received or otherwise made 
exclusively within a single State;
    (2) The bet or wager and the method by which the bet or wager is 
initiated and received or otherwise made is expressly authorized by and 
placed in accordance with the laws of such State, and the State law or 
regulations include--
    (i) Age and location verification requirements reasonably designed 
to block access to minors and persons located out of such State; and
    (ii) Appropriate data security standards to prevent unauthorized 
access by any person whose age and current location has not been 
verified in accordance with such State's law or regulations; and
    (3) The bet or wager does not violate any provision of--
    (i) The Interstate Horseracing Act of 1978 (15 U.S.C. 3001 et seq.);
    (ii) 28 U.S.C. chapter 178 (professional and amateur sports 
protection);
    (iii) The Gambling Devices Transportation Act (15 U.S.C. 1171 et 
seq.); or
    (iv) The Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
    (t) Intratribal transaction means placing, receiving or otherwise 
transmitting a bet or wager where--
    (1) The bet or wager is initiated and received or otherwise made 
exclusively--
    (i) Within the Indian lands of a single Indian tribe (as such terms 
are defined under the Indian Gaming Regulatory Act (25 U.S.C. 2703)); or
    (ii) Between the Indian lands of two or more Indian tribes to the 
extent that intertribal gaming is authorized by the Indian Gaming 
Regulatory Act (25 U.S.C. 2701 et seq.);
    (2) The bet or wager and the method by which the bet or wager is 
initiated and received or otherwise made is expressly authorized by and 
complies with the requirements of--
    (i) The applicable tribal ordinance or resolution approved by the 
Chairman of the National Indian Gaming Commission; and
    (ii) With respect to class III gaming, the applicable Tribal-State 
compact;
    (3) The applicable tribal ordinance or resolution or Tribal-State 
compact includes--
    (i) Age and location verification requirements reasonably designed 
to block access to minors and persons located out of the applicable 
Tribal lands; and

[[Page 54]]

    (ii) Appropriate data security standards to prevent unauthorized 
access by any person whose age and current location has not been 
verified in accordance with the applicable tribal ordinance or 
resolution or Tribal-State Compact; and
    (4) The bet or wager does not violate any provision of--
    (i) The Interstate Horseracing Act of 1978 (15 U.S.C. 3001 et seq.);
    (ii) 28 U.S.C. chapter 178 (professional and amateur sports 
protection);
    (iii) The Gambling Devices Transportation Act (15 U.S.C. 1171 et 
seq.); or
    (iv) The Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.).
    (u) Money transmitting business has the meaning given the term in 31 
U.S.C. 5330(d)(1) (determined without regard to any regulations 
prescribed by the Secretary of the Treasury thereunder).
    (v) Operator of a designated payment system means an entity that 
provides centralized clearing and delivery services between participants 
in the designated payment system and maintains the operational framework 
for the system. In the case of an automated clearinghouse system, the 
term ``operator'' has the same meaning as provided in the ACH Rules.
    (w) Participant in a designated payment system means an operator of 
a designated payment system, a financial transaction provider that is a 
member of, or has contracted for financial transaction services with, or 
is otherwise participating in, a designated payment system, or a third-
party processor. This term does not include a customer of the financial 
transaction provider, unless the customer is also a financial 
transaction provider otherwise participating in the designated payment 
system on its own behalf.
    (x) Reasoned legal opinion means a written expression of 
professional judgment by a State-licensed attorney that addresses the 
facts of a particular client's business and the legality of the client's 
provision of its services to relevant customers in the relevant 
jurisdictions under applicable federal and State law, and, in the case 
of intratribal transactions, applicable tribal ordinances, tribal 
resolutions, and Tribal-State compacts. A written legal opinion will not 
be considered ``reasoned'' if it does nothing more than recite the facts 
and express a conclusion.
    (y) Restricted transaction means any of the following transactions 
or transmittals involving any credit, funds, instrument, or proceeds 
that the Act prohibits any person engaged in the business of betting or 
wagering (which does not include the activities of a financial 
transaction provider, or any interactive computer service or 
telecommunications service) from knowingly accepting, in connection with 
the participation of another person in unlawful Internet gambling--
    (1) Credit, or the proceeds of credit, extended to or on behalf of 
such other person (including credit extended through the use of a credit 
card);
    (2) An electronic fund transfer, or funds transmitted by or through 
a money transmitting business, or the proceeds of an electronic fund 
transfer or money transmitting service, from or on behalf of such other 
person; or
    (3) Any check, draft, or similar instrument that is drawn by or on 
behalf of such other person and is drawn on or payable at or through any 
financial institution.
    (z) State means any State of the United States, the District of 
Columbia, or any commonwealth, territory, or other possession of the 
United States, including the Commonwealth of Puerto Rico, the 
Commonwealth of the Northern Mariana Islands, American Samoa, Guam, and 
the Virgin Islands.
    (aa) Third-party processor means a service provider that--
    (1) In the case of a debit transaction payment, such as an ACH debit 
entry or card system transaction, has a direct relationship with the 
commercial customer that is initiating the debit transfer transaction 
and acts as an intermediary between the commercial customer and the 
first depository institution to handle the transaction;
    (2) In the case of a credit transaction payment, such as an ACH 
credit entry, has a direct relationship with the commercial customer 
that is to receive the proceeds of the credit transfer and acts

[[Page 55]]

as an intermediary between the commercial customer and the last 
depository institution to handle the transaction; and
    (3) In the case of a cross-border ACH debit or check collection 
transaction, is the first service provider located within the United 
States to receive the ACH debit instructions or check for collection.
    (bb) Unlawful Internet gambling means to place, receive, or 
otherwise knowingly transmit a bet or wager by any means which involves 
the use, at least in part, of the Internet where such bet or wager is 
unlawful under any applicable Federal or State law in the State or 
Tribal lands in which the bet or wager is initiated, received, or 
otherwise made. The term does not include placing, receiving, or 
otherwise transmitting a bet or wager that is excluded from the 
definition of this term by the Act as an intrastate transaction or an 
intra-tribal transaction, and does not include any activity that is 
allowed under the Interstate Horseracing Act of 1978 (15 U.S.C. 3001 et 
seq.; see Sec. 233.1(a)). The intermediate routing of electronic data 
shall not determine the location or locations in which a bet or wager is 
initiated, received, or otherwise made.
    (cc) Wire transfer system means a system through which an 
unconditional order to a bank to pay a fixed or determinable amount of 
money to a beneficiary upon receipt, or on a day stated in the order, is 
transmitted by electronic or other means through the network, between 
banks, or on the books of a bank. When referring to wire transfer 
systems, the terms in this regulation (such as ``bank,'' ``originator's 
bank,'' ``beneficiary's bank,'' and ``intermediary bank'') are defined 
as those terms are defined in 12 CFR part 210, appendix B.



Sec. 233.3  Designated payment systems.

    The following payment systems could be used by participants in 
connection with, or to facilitate, a restricted transaction:
    (a) Automated clearing house systems;
    (b) Card systems;
    (c) Check collection systems;
    (d) Money transmitting businesses solely to the extent they
    (1) Engage in the transmission of funds, which does not include 
check cashing, currency exchange, or the issuance or redemption of money 
orders, travelers' checks, and other similar instruments; and
    (2) Permit customers to initiate transmission of funds transactions 
remotely from a location other than a physical office of the money 
transmitting business; and
    (e) Wire transfer systems.



Sec. 233.4  Exemptions.

    (a) Automated clearing house systems. The participants processing a 
particular transaction through an automated clearing house system are 
exempt from this regulation's requirements for establishing written 
policies and procedures reasonably designed to prevent or prohibit 
restricted transactions with respect to that transaction, except for--
    (1) The receiving depository financial institution and any third-
party processor receiving the transaction on behalf of the receiver in 
an ACH credit transaction;
    (2) The originating depository financial institution and any third-
party processor initiating the transaction on behalf of the originator 
in an ACH debit transaction; and
    (3) The receiving gateway operator and any third-party processor 
that receives instructions for an ACH debit transaction directly from a 
foreign sender (which could include a foreign banking office, a foreign 
third-party processor, or a foreign originating gateway operator).
    (b) Check collection systems. The participants in a particular check 
collection through a check collection system are exempt from this 
regulation's requirements for establishing written policies and 
procedures reasonably designed to prevent or prohibit restricted 
transactions with respect to that check collection, except for the 
depositary bank.
    (c) Money transmitting businesses. The participants in a money 
transmitting business are exempt from this regulation's requirements for 
establishing

[[Page 56]]

written policies and procedures reasonably designed to prevent or 
prohibit restricted transactions, except for the operator.
    (d) Wire transfer systems. The participants in a particular wire 
transfer through a wire transfer system are exempt from this 
regulation's requirements for establishing written policies and 
procedures reasonably designed to prevent or prohibit restricted 
transactions with respect to that transaction, except for the 
beneficiary's bank.



Sec. 233.5  Policies and procedures required.

    (a) All non-exempt participants in designated payment systems shall 
establish and implement written policies and procedures reasonably 
designed to identify and block or otherwise prevent or prohibit 
restricted transactions.
    (b) A non-exempt financial transaction provider participant in a 
designated payment system shall be considered to be in compliance with 
the requirements of paragraph (a) of this section if--
    (1) It relies on and complies with the written policies and 
procedures of the designated payment system that are reasonably designed 
to--
    (i) Identify and block restricted transactions; or
    (ii) Otherwise prevent or prohibit the acceptance of the products or 
services of the designated payment system or participant in connection 
with restricted transactions; and
    (2) Such policies and procedures of the designated payment system 
comply with the requirements of this part.
    (c) For purposes of paragraph (b)(2) in this section, a participant 
in a designated payment system may rely on a written statement or notice 
by the operator of that designated payment system to its participants 
that states that the operator has designed or structured the system's 
policies and procedures for identifying and blocking or otherwise 
preventing or prohibiting restricted transactions to comply with the 
requirements of this part as conclusive evidence that the system's 
policies and procedures comply with the requirements of this part, 
unless the participant is notified otherwise by its Federal functional 
regulator or, in the case of participants that are not directly 
supervised by a Federal functional regulator, the Federal Trade 
Commission.
    (d) As provided in the Act, a person that identifies and blocks a 
transaction, prevents or prohibits the acceptance of its products or 
services in connection with a transaction, or otherwise refuses to honor 
a transaction, shall not be liable to any party for such action if--
    (1) The transaction is a restricted transaction;
    (2) Such person reasonably believes the transaction to be a 
restricted transaction; or
    (3) The person is a participant in a designated payment system and 
blocks or otherwise prevents the transaction in reliance on the policies 
and procedures of the designated payment system in an effort to comply 
with this regulation.
    (e) Nothing in this part requires or is intended to suggest that 
designated payment systems or participants therein must or should block 
or otherwise prevent or prohibit any transaction in connection with any 
activity that is excluded from the definition of ``unlawful Internet 
gambling'' in the Act as an intrastate transaction, an intratribal 
transaction, or a transaction in connection with any activity that is 
allowed under the Interstate Horseracing Act of 1978 (15 U.S.C. 3001 et 
seq.; see Sec. 233.1(a)).
    (f) Nothing in this part modifies any requirement imposed on a 
participant by other applicable law or regulation to file a suspicious 
activity report to the appropriate authorities.
    (g) The requirement of this part to establish and implement written 
policies and procedures applies only to the U.S. offices of participants 
in designated payment systems.



Sec. 233.6  Non-exclusive examples of policies and procedures.

    (a) In general. The examples of policies and procedures to identify 
and block or otherwise prevent or prohibit restricted transactions set 
out in this section are non-exclusive. In establishing and implementing 
written policies and procedures to identify and

[[Page 57]]

block or otherwise prevent or prohibit restricted transactions, a non-
exempt participant in a designated payment system is permitted to design 
and implement policies and procedures tailored to its business that may 
be different than the examples provided in this section. In addition, 
non-exempt participants may use different policies and procedures with 
respect to different business lines or different parts of the 
organization.
    (b) Due diligence. If a non-exempt participant in a designated 
payment system establishes and implements procedures for due diligence 
of its commercial customer accounts or commercial customer relationships 
in order to comply, in whole or in part, with the requirements of this 
regulation, those due diligence procedures will be deemed to be 
reasonably designed to identify and block or otherwise prevent or 
prohibit restricted transactions if the procedures include the steps set 
out in paragraphs (b)(1), (b)(2), and (b)(3) of this section and subject 
to paragraph (b)(4) of this section.
    (1) At the establishment of the account or relationship, the 
participant conducts due diligence of a commercial customer and its 
activities commensurate with the participant's judgment of the risk of 
restricted transactions presented by the customer's business.
    (2) Based on its due diligence, the participant makes a 
determination regarding the risk the commercial customer presents of 
engaging in an Internet gambling business and follows either paragraph 
(b)(2)(i) or (b)(2)(ii) of this section.
    (i) The participant determines that the commercial customer presents 
a minimal risk of engaging in an Internet gambling business.
    (ii) The participant cannot determine that the commercial customer 
presents a minimal risk of engaging in an Internet gambling business, in 
which case it obtains the documentation in either paragraph 
(b)(2)(ii)(A) or (b)(2)(ii)(B) of this section--
    (A) Certification from the commercial customer that it does not 
engage in an Internet gambling business; or
    (B) If the commercial customer does engage in an Internet gambling 
business, each of the following--
    (1) Evidence of legal authority to engage in the Internet gambling 
business, such as--
    (i) A copy of the commercial customer's license that expressly 
authorizes the customer to engage in the Internet gambling business 
issued by the appropriate State or Tribal authority or, if the 
commercial customer does not have such a license, a reasoned legal 
opinion that demonstrates that the commercial customer's Internet 
gambling business does not involve restricted transactions; and
    (ii) A written commitment by the commercial customer to notify the 
participant of any changes in its legal authority to engage in its 
Internet gambling business.
    (2) A third-party certification that the commercial customer's 
systems for engaging in the Internet gambling business are reasonably 
designed to ensure that the commercial customer's Internet gambling 
business will remain within the licensed or otherwise lawful limits, 
including with respect to age and location verification.
    (3) The participant notifies all of its commercial customers, 
through provisions in the account or commercial customer relationship 
agreement or otherwise, that restricted transactions are prohibited from 
being processed through the account or relationship.
    (4) With respect to the determination in paragraph (b)(2)(i) of this 
section, participants may deem the following commercial customers to 
present a minimal risk of engaging in an Internet gambling business--
    (i) An entity that is directly supervised by a Federal functional 
regulator as set out in Sec. 233.7(a); or
    (ii) An agency, department, or division of the Federal government or 
a State government.
    (c) Automated clearing house system examples. (1) The policies and 
procedures of the originating depository financial institution and any 
third party processor in an ACH debit transaction, and the receiving 
depository financial institution and any third party processor in an ACH 
credit transaction, are deemed to be reasonably designed to identify and 
block or otherwise prevent or prohibit restricted transactions if they--

[[Page 58]]

    (i) Address methods to conduct due diligence in establishing a 
commercial customer account or relationship as set out in Sec. 
233.6(b);
    (ii) Address methods to conduct due diligence as set out in Sec. 
233.6(b)(2)(ii)(B) in the event that the participant has actual 
knowledge that an existing commercial customer of the participant 
engages in an Internet gambling business; and
    (iii) Include procedures to be followed with respect to a commercial 
customer if the originating depository financial institution or third-
party processor has actual knowledge that its commercial customer has 
originated restricted transactions as ACH debit transactions or if the 
receiving depository financial institution or third-party processor has 
actual knowledge that its commercial customer has received restricted 
transactions as ACH credit transactions, such as procedures that 
address--
    (A) The circumstances under which the commercial customer should not 
be allowed to originate ACH debit transactions or receive ACH credit 
transactions; and
    (B) The circumstances under which the account should be closed.
    (2) The policies and procedures of a receiving gateway operator and 
third-party processor that receives instructions to originate an ACH 
debit transaction directly from a foreign sender are deemed to be 
reasonably designed to prevent or prohibit restricted transactions if 
they include procedures to be followed with respect to a foreign sender 
if the receiving gateway operator or third-party processor has actual 
knowledge, obtained through notification by a government entity, such as 
law enforcement or a regulatory agency, that such instructions included 
instructions for restricted transactions. Such procedures may address 
sending notification to the foreign sender, such as in the form of the 
notice contained in appendix A to this part.
    (d) Card system examples. The policies and procedures of a card 
system operator, a merchant acquirer, third-party processor, or a card 
issuer, are deemed to be reasonably designed to identify and block or 
otherwise prevent or prohibit restricted transactions, if the policies 
and procedures--
    (1) Provide for either--
    (i) Methods to conduct due diligence--
    (A) In establishing a commercial customer account or relationship as 
set out in Sec. 233.6(b); and
    (B) As set out in Sec. 233.6(b)(2)(ii)(B) in the event that the 
participant has actual knowledge that an existing commercial customer of 
the participant engages in an Internet gambling business; or
    (ii) Implementation of a code system, such as transaction codes and 
merchant/business category codes, that are required to accompany the 
authorization request for a transaction, including--
    (A) The operational functionality to enable the card system operator 
or the card issuer to reasonably identify and deny authorization for a 
transaction that the coding procedure indicates may be a restricted 
transaction; and
    (B) Procedures for ongoing monitoring or testing by the card system 
operator to detect potential restricted transactions, including--
    (1) Conducting testing to ascertain whether transaction 
authorization requests are coded correctly; and
    (2) Monitoring and analyzing payment patterns to detect suspicious 
payment volumes from a merchant customer; and
    (2) For the card system operator, merchant acquirer, or third-party 
processor, include procedures to be followed when the participant has 
actual knowledge that a merchant has received restricted transactions 
through the card system, such as--
    (i) The circumstances under which the access to the card system for 
the merchant, merchant acquirer, or third-party processor should be 
denied; and
    (ii) The circumstances under which the merchant account should be 
closed.
    (e) Check collection system examples. (1) The policies and 
procedures of a depositary bank are deemed to be reasonably designed to 
identify and block or otherwise prevent or prohibit restricted 
transactions, if they--
    (i) Address methods for the depositary bank to conduct due diligence 
in establishing a commercial customer account or relationship as set out 
in Sec. 233.6(b);

[[Page 59]]

    (ii) Address methods for the depositary bank to conduct due 
diligence as set out in Sec. 233.6(b)(2)(ii)(B) in the event that the 
depositary bank has actual knowledge that an existing commercial 
customer engages in an Internet gambling business; and
    (iii) Include procedures to be followed if the depositary bank has 
actual knowledge that a commercial customer of the depositary bank has 
deposited checks that are restricted transactions, such as procedures 
that address--
    (A) The circumstances under which check collection services for the 
customer should be denied; and
    (B) The circumstances under which the account should be closed.
    (2) The policies and procedures of a depositary bank that receives 
checks for collection from a foreign banking office are deemed to be 
reasonably designed to identify and block or otherwise prevent or 
prohibit restricted transactions if they include procedures to be 
followed by the depositary bank when it has actual knowledge, obtained 
through notification by a government entity, such as law enforcement or 
a regulatory agency, that a foreign banking office has sent checks to 
the depositary bank that are restricted transactions. Such procedures 
may address sending notification to the foreign banking office, such as 
in the form of the notice contained in the appendix to this part.
    (f) Money transmitting business examples. The policies and 
procedures of an operator of a money transmitting business are deemed to 
be reasonably designed to identify and block or otherwise prevent or 
prohibit restricted transactions if they--
    (1) Address methods for the operator to conduct due diligence in 
establishing a commercial customer relationship as set out in Sec. 
233.6(b);
    (2) Address methods for the operator to conduct due diligence as set 
out in Sec. 233.6(b)(2)(ii)(B) in the event that the operator has 
actual knowledge that an existing commercial customer engages in an 
Internet gambling business;
    (3) Include procedures regarding ongoing monitoring or testing by 
the operator to detect potential restricted transactions, such as 
monitoring and analyzing payment patterns to detect suspicious payment 
volumes to any recipient; and
    (4) Include procedures when the operator has actual knowledge that a 
commercial customer of the operator has received restricted transactions 
through the money transmitting business, that address--
    (i) The circumstances under which money transmitting services should 
be denied to that commercial customer; and
    (ii) The circumstances under which the commercial customer account 
should be closed.
    (g) Wire transfer system examples. The policies and procedures of 
the beneficiary's bank in a wire transfer are deemed to be reasonably 
designed to identify and block or otherwise prevent or prohibit 
restricted transactions if they--
    (1) Address methods for the beneficiary's bank to conduct due 
diligence in establishing a commercial customer account as set out in 
Sec. 233.6(b);
    (2) Address methods for the beneficiary's bank to conduct due 
diligence as set out in Sec. 233.6(b)(2)(ii)(B) in the event that the 
beneficiary's bank has actual knowledge that an existing commercial 
customer of the bank engages in an Internet gambling business;
    (3) Include procedures to be followed if the beneficiary's bank 
obtains actual knowledge that a commercial customer of the bank has 
received restricted transactions through the wire transfer system, such 
as procedures that address
    (i) The circumstances under which the beneficiary bank should deny 
wire transfer services to the commercial customer; and
    (ii) The circumstances under which the commercial customer account 
should be closed.



Sec. 233.7  Regulatory enforcement.

    The requirements under this part are subject to the exclusive 
regulatory enforcement of--
    (a) The Federal functional regulators, with respect to the 
designated payment systems and participants therein that are subject to 
the respective jurisdiction of such regulators under section 505(a) of 
the Gramm-

[[Page 60]]

Leach-Bliley Act (15 U.S.C. 6805(a)) and section 5g of the Commodity 
Exchange Act (7 U.S.C. 7b-2); and
    (b) The Federal Trade Commission, with respect to designated payment 
systems and participants therein not otherwise subject to the 
jurisdiction of any Federal functional regulators (including the 
Commission) as described in paragraph (a) of this section.



                Sec. Appendix A to Part 233--Model Notice

[Date]
[Name of foreign sender or foreign banking office]
[Address]
Re: U.S. Unlawful Internet Gambling Enforcement Act Notice

Dear [Name of foreign counterparty]:

    On [date], U.S. government officials informed us that your 
institution processed payments through our facilities for Internet 
gambling transactions restricted by U.S. law on [dates, recipients, and 
other relevant information if available].
    We provide this notice to comply with U.S. Government regulations 
implementing the Unlawful Internet Gambling Enforcement Act of 2006 
(Act), a U.S. federal law. Our policies and procedures established in 
accordance with those regulations provide that we will notify a foreign 
counterparty if we learn that the counterparty has processed payments 
through our facilities for Internet gambling transactions restricted by 
the Act. This notice ensures that you are aware that we have received 
information that your institution has processed payments for Internet 
gambling restricted by the Act.
    The Act is codified in subchapter IV, chapter 53, title 31 of the 
U.S. Code (31 U.S.C. 5361 et seq.). Implementing regulations that 
duplicate one another can be found at part 233 of title 12 of the U.S. 
Code of Federal Regulations (12 CFR part 233) and part 132 of title 31 
of the U.S. Code of Federal Regulations (31 CFR part 132).



PART 235_DEBIT CARD INTERCHANGE FEES AND ROUTING--Table of Contents



Sec.
235.1 Authority and purpose.
235.2 Definitions.
235.3 Reasonable and proportional interchange transaction fees.
235.4 Fraud-prevention adjustment.
235.5 Exemptions.
235.6 Prohibition on circumvention, evasion, and net compensation.
235.7 Limitations on payment card restrictions.
235.8 Reporting requirements and record retention.
235.9 Administrative enforcement.
235.10 Effective and compliance dates.

Appendix A to Part 235--Official Board Commentary on Regulation II

    Authority: 15 U.S.C. 1693o-2.

    Source: 76 FR 43466, July 20, 2011, unless otherwise noted.



Sec. 235.1  Authority and purpose.

    (a) Authority. This part is issued by the Board of Governors of the 
Federal Reserve System (Board) under section 920 of the Electronic Fund 
Transfer Act (EFTA) (15 U.S.C. 1693o-2, as added by section 1075 of the 
Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 
111-203, 124 Stat. 1376 (2010)).
    (b) Purpose. This part implements the provisions of section 920 of 
the EFTA, including standards for reasonable and proportional 
interchange transaction fees for electronic debit transactions, 
standards for receiving a fraud-prevention adjustment to interchange 
transaction fees, exemptions from the interchange transaction fee 
limitations, prohibitions on evasion and circumvention, prohibitions on 
payment card network exclusivity arrangements and routing restrictions 
for debit card transactions, and reporting requirements for debit card 
issuers and payment card networks.



Sec. 235.2  Definitions.

    For purposes of this part:
    (a) Account (1) Means a transaction, savings, or other asset account 
(other than an occasional or incidental credit balance in a credit plan) 
established for any purpose and that is located in the United States; 
and
    (2) Does not include an account held under a bona fide trust 
agreement that is excluded by section 903(2) of the Electronic Fund 
Transfer Act and rules prescribed thereunder.
    (b) Acquirer means a person that contracts directly or indirectly 
with a merchant to provide settlement for the merchant's electronic 
debit transactions over a payment card network. An acquirer does not 
include a person that acts only as a processor for the services it 
provides to the merchant.

[[Page 61]]

    (c) Affiliate means any company that controls, is controlled by, or 
is under common control with another company.
    (d) Cardholder means the person to whom a debit card is issued.
    (e) Control of a company means--
    (1) Ownership, control, or power to vote 25 percent or more of the 
outstanding shares of any class of voting security of the company, 
directly or indirectly, or acting through one or more other persons;
    (2) Control in any manner over the election of a majority of the 
directors, trustees, or general partners (or individuals exercising 
similar functions) of the company; or
    (3) The power to exercise, directly or indirectly, a controlling 
influence over the management or policies of the company, as the Board 
determines.
    (f) Debit card (1) Means any card, or other payment code or device, 
issued or approved for use through a payment card network to debit an 
account, regardless of whether authorization is based on signature, 
personal identification number (PIN), or other means, and regardless of 
whether the issuer holds the account, and
    (2) Includes any general-use prepaid card; and
    (3) Does not include--
    (i) Any card, or other payment code or device, that is redeemable 
upon presentation at only a single merchant or an affiliated group of 
merchants for goods or services; or
    (ii) A check, draft, or similar paper instrument, or an electronic 
representation thereof.
    (g) Designated automated teller machine (ATM) network means either--
    (1) All ATMs identified in the name of the issuer; or
    (2) Any network of ATMs identified by the issuer that provides 
reasonable and convenient access to the issuer's customers.
    (h) Electronic debit transaction (1) Means the use of a debit card 
by a person as a form of payment in the United States to initiate a 
debit to an account, and
    (2) Does not include transactions initiated at an ATM, including 
cash withdrawals and balance transfers initiated at an ATM.
    (i) General-use prepaid card means a card, or other payment code or 
device, that is--
    (1) Issued on a prepaid basis in a specified amount, whether or not 
that amount may be increased or reloaded, in exchange for payment; and
    (2) Redeemable upon presentation at multiple, unaffiliated merchants 
for goods or services.
    (j) Interchange transaction fee means any fee established, charged, 
or received by a payment card network and paid by a merchant or an 
acquirer for the purpose of compensating an issuer for its involvement 
in an electronic debit transaction.
    (k) Issuer means any person that authorizes the use of a debit card 
to perform an electronic debit transaction.
    (l) Merchant means any person that accepts debit cards as payment.
    (m) Payment card network means an entity that--
    (1) Directly or indirectly provides the proprietary services, 
infrastructure, and software that route information and data to an 
issuer from an acquirer to conduct the authorization, clearance, and 
settlement of electronic debit transactions; and
    (2) A merchant uses in order to accept as a form of payment a brand 
of debit card or other device that may be used to carry out electronic 
debit transactions.
    (n) Person means a natural person or an organization, including a 
corporation, government agency, estate, trust, partnership, 
proprietorship, cooperative, or association.
    (o) Processor means a person that processes or routes electronic 
debit transactions for issuers, acquirers, or merchants.
    (p) Route means to direct and send information and data to an 
unaffiliated entity or to an affiliated entity acting on behalf of an 
unaffiliated entity.
    (q) United States means the States, territories, and possessions of 
the United States, the District of Columbia, the Commonwealth of Puerto 
Rico, or any political subdivision of any of the foregoing.

[[Page 62]]



Sec. 235.3  Reasonable and proportional interchange transaction fees.

    (a) In general. The amount of any interchange transaction fee that 
an issuer may receive or charge with respect to an electronic debit 
transaction shall be reasonable and proportional to the cost incurred by 
the issuer with respect to the electronic debit transaction.
    (b) Determination of reasonable and proportional fees. An issuer 
complies with the requirements of paragraph (a) of this section only if 
each interchange transaction fee received or charged by the issuer for 
an electronic debit transaction is no more than the sum of--
    (1) 21 cents and;
    (2) 5 basis points multiplied by the value of the transaction.



Sec. 235.4  Fraud-prevention adjustment.

    (a) In general. If an issuer meets the standards set forth in 
paragraph (b) of this section, it may receive or charge an additional 
amount of no more than 1 cent per transaction to any interchange 
transaction fee it receives or charges in accordance with Sec. 235.3.
    (b) Issuer standards. To be eligible to receive the fraud-prevention 
adjustment, an issuer shall--
    (1) Develop and implement policies and procedures reasonably 
designed to--
    (i) Identify and prevent fraudulent electronic debit transactions;
    (ii) Monitor the incidence of, reimbursements received for, and 
losses incurred from fraudulent electronic debit transactions;
    (iii) Respond appropriately to suspicious electronic debit 
transactions so as to limit the fraud losses that may occur and prevent 
the occurrence of future fraudulent electronic debit transactions; and
    (iv) Secure debit card and cardholder data; and
    (2) Review its fraud-prevention policies and procedures at least 
annually, and update them as necessary to address changes in prevalence 
and nature of fraudulent electronic debit transactions and available 
methods of detecting, preventing, and mitigating fraud.
    (c) Certification. To be eligible to receive or charge a fraud-
prevention adjustment, an issuer that meets the standards set forth in 
paragraph (b) of this section must certify such compliance to its 
payment card networks on an annual basis.

[76 FR 43486, July 20, 2011]



Sec. 235.5  Exemptions.

    (a) Exemption for small issuers--(1) In general. Except as provided 
in paragraph (a)(3) of this section, Sec. Sec. 235.3, 235.4, and 235.6 
do not apply to an interchange transaction fee received or charged by an 
issuer with respect to an electronic debit transaction if--
    (i) The issuer holds the account that is debited; and
    (ii) The issuer, together with its affiliates, has assets of less 
than $10 billion as of the end of the calendar year preceding the date 
of the electronic debit transaction.
    (2) Determination of issuer asset size. A person may rely on lists 
published by the Board to determine whether an issuer, together with its 
affiliates, has assets of less than $10 billion as of the end of the 
calendar year preceding the date of the electronic debit transaction.
    (3) Change in status. If an issuer qualifies for the exemption in 
paragraph (a)(1) in a particular calendar year, but, as of the end of 
that calendar year no longer qualifies for the exemption because at that 
time it, together with its affiliates, has assets of $10 billion or 
more, the issuer must begin complying with Sec. Sec. 235.3, 235.4, and 
235.6 no later than July 1 of the succeeding calendar year.
    (b) Exemption for government-administered programs. Except as 
provided in paragraph (d) of this section, Sec. Sec. 235.3, 235.4, and 
235.6 do not apply to an interchange transaction fee received or charged 
by an issuer with respect to an electronic debit transaction if--
    (1) The electronic debit transaction is made using a debit card that 
has been provided to a person pursuant to a Federal, State, or local 
government-administered payment program; and
    (2) The cardholder may use the debit card only to transfer or debit 
funds, monetary value, or other assets that have been provided pursuant 
to such program.

[[Page 63]]

    (c) Exemption for certain reloadable prepaid cards--(1) In general. 
Except as provided in paragraph (d) of this section, Sec. Sec. 235.3, 
235.4, and 235.6 do not apply to an interchange transaction fee received 
or charged by an issuer with respect to an electronic debit transaction 
using a general-use prepaid card that is--
    (i) Not issued or approved for use to access or debit any account 
held by or for the benefit of the cardholder (other than a subaccount or 
other method of recording or tracking funds purchased or loaded on the 
card on a prepaid basis);
    (ii) Reloadable and not marketed or labeled as a gift card or gift 
certificate; and
    (iii) The only means of access to the underlying funds, except when 
all remaining funds are provided to the cardholder in a single 
transaction.
    (2) Temporary cards. For purposes of this paragraph (c), the term 
``reloadable'' includes a temporary non-reloadable card issued solely in 
connection with a reloadable general-use prepaid card.
    (d) Exception. The exemptions in paragraphs (b) and (c) of this 
section do not apply to any interchange transaction fee received or 
charged by an issuer on or after July 21, 2012, with respect to an 
electronic debit transaction if any of the following fees may be charged 
to a cardholder with respect to the card:
    (1) A fee or charge for an overdraft, including a shortage of funds 
or a transaction processed for an amount exceeding the account balance, 
unless the fee or charge is imposed for transferring funds from another 
asset account to cover a shortfall in the account accessed by the card; 
or
    (2) A fee imposed by the issuer for the first withdrawal per 
calendar month from an ATM that is part of the issuer's designated ATM 
network.



Sec. 235.6  Prohibition on circumvention, evasion, and net compensation.

    (a) Prohibition of circumvention or evasion. No person shall 
circumvent or evade the interchange transaction fee restrictions in 
Sec. Sec. 235.3 and 235.4.
    (b) Prohibition of net compensation. An issuer may not receive net 
compensation from a payment card network with respect to electronic 
debit transactions or debit card-related activities within a calendar 
year. Net compensation occurs when the total amount of payments or 
incentives received by an issuer from a payment card network with 
respect to electronic debit transactions or debit card-related 
activities, other than interchange transaction fees passed through to 
the issuer by the network, during a calendar year exceeds the total 
amount of all fees paid by the issuer to the network with respect to 
electronic debit transactions or debit card-related activities during 
that calendar year. Payments and incentives paid by a network to an 
issuer, and fees paid by an issuer to a network, with respect to 
electronic debit transactions or debit card related activities are not 
limited to volume-based or transaction-specific payments, incentives, or 
fees, but also include other payments, incentives or fees related to an 
issuer's provision of debit card services.



Sec. 235.7  Limitations on payment card restrictions.

    (a) Prohibition on network exclusivity--(1) In general. An issuer or 
payment card network shall not directly or through any agent, processor, 
or licensed member of a payment card network, by contract, requirement, 
condition, penalty, or otherwise, restrict the number of payment card 
networks on which an electronic debit transaction may be processed to 
less than two unaffiliated networks.
    (2) Permitted arrangements. An issuer satisfies the requirements of 
paragraph (a)(1) of this section only if the issuer allows an electronic 
debit transaction to be processed on at least two unaffiliated payment 
card networks, each of which does not, by rule or policy, restrict the 
operation of the network to a limited geographic area, specific 
merchant, or particular type of merchant or transaction, and each of 
which has taken steps reasonably designed to enable the network to 
process the electronic debit transactions that the network would 
reasonably expect will be routed to it, based on expected transaction 
volume.

[[Page 64]]

    (3) Prohibited exclusivity arrangements by networks. For purposes of 
paragraph (a)(1) of this section, a payment card network may not 
restrict or otherwise limit an issuer's ability to contract with any 
other payment card network that may process an electronic debit 
transaction involving the issuer's debit cards.
    (4) Subsequent affiliation. If unaffiliated payment card networks 
become affiliated as a result of a merger or acquisition such that an 
issuer is no longer in compliance with paragraph (a) of this section, 
the issuer must add an unaffiliated payment card network through which 
electronic debit transactions on the relevant debit card may be 
processed no later than six months after the date on which the 
previously unaffiliated payment card networks consummate the 
affiliation.
    (b) Prohibition on routing restrictions. An issuer or payment card 
network shall not, directly or through any agent, processor, or licensed 
member of the network, by contract, requirement, condition, penalty, or 
otherwise, inhibit the ability of any person that accepts or honors 
debit cards for payments to direct the routing of electronic debit 
transactions for processing over any payment card network that may 
process such transactions.
    (c) Compliance dates--(1) General. Except as otherwise provided in 
paragraphs (c)(2), (c)(3), and (c)(4) of this section, the compliance 
date of paragraph (a) of this section is April 1, 2012.
    (2) Restrictions by payment card networks. The compliance date of 
paragraphs (a)(1) and (a)(3) of this section for payment card networks 
is October 1, 2011.
    (3) Debit cards that use transaction qualification or substantiation 
systems. Issuers shall comply with the requirements of paragraph (a) of 
this section by April 1, 2013, for electronic debit transactions using 
debit cards that use point-of-sale transaction qualification or 
substantiation systems for verifying the eligibility of purchased goods 
or services.
    (4) General-use prepaid cards. Issuers shall comply with the 
requirements of paragraph (a) of this section with respect to general-
use prepaid cards as set out below.
    (i) With respect to non-reloadable general-use prepaid cards, the 
compliance date is April 1, 2013. Non-reloadable general-use prepaid 
cards sold prior to April 1, 2013 are not subject to paragraph (a) of 
this section.
    (ii) With respect to reloadable general-use prepaid cards, the 
compliance date is April 1, 2013. Reloadable general-use prepaid cards 
sold prior to April 1, 2013 are not subject to paragraph (a) of this 
section unless and until they are reloaded, in which case the following 
compliance dates apply:
    (A) With respect to reloadable general-use prepaid cards sold and 
reloaded prior to April 1, 2013, the compliance date is May 1, 2013.
    (B) With respect to reloadable general-use prepaid cards sold prior 
to April 1, 2013, and reloaded on or after April 1, 2013, the compliance 
date is 30 days after the date of reloading.



Sec. 235.8  Reporting requirements and record retention.

    (a) Entities required to report. Each issuer that is not otherwise 
exempt from the requirements of this part under Sec. 235.5(a) and each 
payment card network shall file a report with the Board in accordance 
with this section.
    (b) Report. Each entity required to file a report with the Board 
shall submit data in a form prescribed by the Board for that entity. 
Data required to be reported may include, but may not be limited to, 
data regarding costs incurred with respect to an electronic debit 
transaction, interchange transaction fees, network fees, fraud-
prevention costs, fraud losses, and transaction value, volume, and type.
    (c) Record retention. (1) An issuer subject to this part shall 
retain evidence of compliance with the requirements imposed by this part 
for a period of not less than five years after the end of the calendar 
year in which the electronic debit transaction occurred.
    (2) Any person subject to this part having actual notice that it is 
the subject of an investigation or an enforcement proceeding by its 
enforcement agency 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.

[[Page 65]]



Sec. 235.9  Administrative enforcement.

    (a)(1) Compliance with the requirements of this part shall be 
enforced under--
    (i) Section 8 of the Federal Deposit Insurance Act, by the 
appropriate Federal banking agency, as defined in section 3(q) of the 
Federal Deposit Insurance Act (12 U.S.C. 1813(q)), with respect to--
    (A) National banks, federal savings associations, and federal 
branches and federal agencies of foreign banks;
    (B) Member banks of the Federal Reserve System (other than national 
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;
    (C) Banks and state savings associations insured by the Federal 
Deposit Insurance Corporation (other than members of the Federal Reserve 
System), and insured state branches of foreign banks;
    (ii) The Federal Credit Union Act (12 U.S.C. 1751 et seq.), by the 
Administrator of the National Credit Union Administration (National 
Credit Union Administration Board) with respect to any federal credit 
union;
    (iii) The Federal Aviation Act of 1958 (49 U.S.C. 40101 et seq.), by 
the Secretary of Transportation, with respect to any air carrier or 
foreign air carrier subject to that Act; and
    (iv) The Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), by 
the Securities and Exchange Commission, with respect to any broker or 
dealer subject to that Act.
    (2) The terms used in paragraph (a)(1) of this section that are not 
defined in this part or otherwise defined in section 3(s) of the Federal 
Deposit Insurance Act (12 U.S.C. 1813(s)) shall have the meaning given 
to them in section 1(b) of the International Banking Act of 1978 (12 
U.S.C. 3101).
    (b) Additional powers. (1) For the purpose of the exercise by any 
agency referred to in paragraphs (a)(1)(i) through (a)(1)(iv) of this 
section of its power under any statute referred to in those paragraphs, 
a violation of this part is deemed to be a violation of a requirement 
imposed under that statute.
    (2) In addition to its powers under any provision of law 
specifically referred to in paragraphs (a)(1)(i) through (a)(1)(iv) of 
this section, each of the agencies referred to in those paragraphs may 
exercise, for the purpose of enforcing compliance under this part, any 
other authority conferred on it by law.
    (c) Enforcement authority of Federal Trade Commission. Except to the 
extent that enforcement of the requirements imposed under this title is 
specifically granted to another government agency under paragraphs 
(a)(1)(i) through (a)(1)(iv) of this section, and subject to subtitle B 
of the Consumer Financial Protection Act of 2010, the Federal Trade 
Commission has the authority to enforce such requirements. For the 
purpose of the exercise by the Federal Trade Commission of its functions 
and powers under the Federal Trade Commission Act, a violation of this 
part shall be deemed a violation of a requirement imposed under the 
Federal Trade Commission Act. All of the functions and powers of the 
Federal Trade Commission under the Federal Trade Commission Act are 
available to the Federal Trade Commission to enforce compliance by any 
person subject to the jurisdiction of the Federal Trade Commission with 
the requirements of this part, regardless of whether that person is 
engaged in commerce or meets any other jurisdictional tests under the 
Federal Trade Commission Act.



Sec. 235.10  Effective and compliance dates.

    Except as provided in Sec. 235.7, this part becomes effective and 
compliance is mandatory on October 1, 2011.



 Sec. Appendix A to Part 235--Official Board Commentary on Regulation II

                              Introduction

    The following commentary to Regulation II (12 CFR part 235) provides 
background material to explain the Board's intent in adopting a 
particular part of the regulation. The commentary also provides examples 
to aid in understanding how a particular requirement is to work.

[[Page 66]]

                        Section 235.2 Definitions

                              2(a) Account

    1. Types of accounts. The term ``account'' includes accounts held by 
any person, including consumer accounts (i.e., those established 
primarily for personal, family or household purposes) and business 
accounts. Therefore, the limitations on interchange transaction fees and 
the prohibitions on network exclusivity arrangements and routing 
restrictions apply to all electronic debit transactions, regardless of 
whether the transaction involves a debit card issued primarily for 
personal, family, or household purposes or for business purposes. For 
example, an issuer of a business-purpose debit card is subject to the 
restrictions on interchange transaction fees and is also prohibited from 
restricting the number of payment card networks on which an electronic 
debit transaction may be processed under Sec. 235.7.
    2. Bona fide trusts. This part does not define the term bona fide 
trust agreement; therefore, institutions must look to state or other 
applicable law for interpretation. 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 this part.
    3. Account located in the United States. This part applies only to 
electronic debit transactions that are initiated to debit (or credit, 
for example, in the case of returned goods or cancelled services) an 
account located in the United States. If a cardholder uses a debit card 
to debit an account held outside the United States, then the electronic 
debit transaction is not subject to this part.

                              2(b) Acquirer

    1. In general. The term ``acquirer'' includes only the institution 
that contracts, directly or indirectly, with a merchant to provide 
settlement for the merchant's electronic debit transactions over a 
payment card network (referred to as acquiring the merchant's electronic 
debit transactions). In some acquiring relationships, an institution 
provides processing services to the merchant and is a licensed member of 
the payment card network, but does not settle the transactions with the 
merchant (by crediting the merchant's account) or with the issuer. These 
institutions are not ``acquirers'' because they do not provide credit to 
the merchant for the transactions or settle the merchant's transactions 
with the issuer. These institutions are considered processors and in 
some circumstances may be considered payment card networks for purposes 
of this part (See Sec. Sec. 235.2(m), 235.2(o), and commentary 
thereto).

                             2(c) Affiliate

    1. Types of entities. The term ``affiliate'' includes any bank and 
nonbank affiliates located in the United States or a foreign country.
    2. Other affiliates. For commentary on whether merchants are 
affiliated, see comment 2(f)-7.

                             2(d) Cardholder

    1. Scope. In the case of debit cards that access funds in 
transaction, savings, or other similar asset accounts, ``the person to 
whom a card is issued'' generally will be the named person or persons 
holding the account. If the account is a business account, multiple 
employees (or other persons associated with the business) may have debit 
cards that can access the account. Each employee that has a debit card 
that can access the account is a cardholder. In the case of a prepaid 
card, the cardholder generally is either the purchaser of the card or a 
person to whom the purchaser gave the card, such as a gift recipient.

                         2(e) Control [Reserved]

                             2(f) Debit Card

    1. Card, or other payment code or device. The term ``debit card'' as 
defined in Sec. 235.2(f) applies to any card, or other payment code or 
device, even if it is not issued in a physical form. Debit cards 
include, for example, an account number or code that can be used to 
access funds in an account to make Internet purchases. Similarly, the 
term ``debit card'' includes a device with a chip or other embedded 
mechanism, such as a mobile phone or sticker containing a contactless 
chip that links the device to funds stored in an account, and enables an 
account to be debited. The term ``debit card,'' however, does not 
include a one-time password or other code if such password or code is 
used for the purposes of authenticating the cardholder and is used in 
addition to another card, or other payment code or device, rather than 
as the payment code or device.
    2. Deferred debit cards. The term ``debit card'' includes a card, or 
other payment code or device, that is used in connection with deferred 
debit card arrangements in which transactions are not immediately posted 
to and funds are not debited from the underlying transaction, savings, 
or other asset account upon settlement of the transaction. Instead, the 
funds in the account typically are held and made unavailable for other 
transactions for a period of time specified in the issuer-cardholder 
agreement. After the expiration of the time period, the cardholder's 
account is debited for the value of all transactions made using the card 
that have been submitted to the issuer for settlement during that time 
period. For example,

[[Page 67]]

under some deferred debit card arrangements, the issuer may debit the 
consumer's account for all debit card transactions that occurred during 
a particular month at the end of the month. Regardless of the time 
period between the transaction and account posting, a card, or other 
payment code or device, that is used in connection with a deferred debit 
arrangement is considered a debit card for purposes of the requirements 
of this part.
    3. Decoupled debit cards. Decoupled debit cards are issued by an 
entity other than the financial institution holding the cardholder's 
account. In a decoupled debit arrangement, transactions that are 
authorized by the card issuer settle against the cardholder's account 
held by an entity other than the issuer, generally via a subsequent ACH 
debit to that account. The term ``debit card'' includes any card, or 
other payment code or device, issued or approved for use through a 
payment card network to debit an account, regardless of whether the 
issuer holds the account. Therefore, decoupled debit cards are debit 
cards for purposes of this part.
    4. Hybrid cards.
    i. Some cards, or other payment codes or devices, may have both 
credit- and debit-like features (``hybrid cards''). For example, these 
cards may enable a cardholder to access a line of credit, but select 
certain transactions for immediate repayment (i.e., prior to the end of 
a billing cycle) via a debit to the cardholder's account, as the term is 
defined in Sec. 235.2(a), held either with the issuer or at another 
institution. If a card permits a cardholder to initiate transactions 
that debit an account or funds underlying a prepaid card, the card is 
considered a debit card for purposes of this part. Not all transactions 
initiated by such a hybrid card, however, are electronic debit 
transactions. Rather, only those transactions that debit an account as 
defined in this part or funds underlying a prepaid card are electronic 
debit transactions. If the transaction posts to a line of credit, then 
the transaction is a credit transaction.
    ii. If an issuer conditions the availability of a credit or charge 
card that permits pre-authorized repayment of some or all transactions 
on the cardholder maintaining an account at the issuer, such a card is 
considered a debit card for purposes of this part.
    5. Virtual wallets. A virtual wallet is a device (e.g., a mobile 
phone) that stores several different payment codes or devices (``virtual 
cards'') that access different accounts, funds underlying the card, or 
lines of credit. At the point of sale, the cardholder may select from 
the virtual wallet the virtual card he or she wishes to use for payment. 
The virtual card that the cardholder uses for payment is considered a 
debit card under this part if the virtual card that initiates a 
transaction meets the definition of debit card, notwithstanding the fact 
that other cards in the wallet may not be debit cards.
    6. General-use prepaid card. The term ``debit card'' includes 
general-use prepaid cards. See Sec. 235.2(i) and related commentary for 
information on general-use prepaid cards.
    7. Store cards. The term ``debit card'' does not include prepaid 
cards that may be used at a single merchant or affiliated merchants. Two 
or more merchants are affiliated if they are related by either common 
ownership or by common corporate control. For purposes of the ``debit 
card'' definition, franchisees are considered to be under common 
corporate control if they are subject to a common set of corporate 
policies or practices under the terms of their franchise licenses.
    8. Checks, drafts, and similar instruments. The term ``debit card'' 
does not include a check, draft, or similar paper instrument or a 
transaction in which the check is used as a source of information to 
initiate an electronic payment. For example, if an account holder 
provides a check to buy goods or services and the merchant takes the 
account number and routing number information from the MICR line at the 
bottom of a check to initiate an ACH debit transfer from the 
cardholder's account, the check is not a debit card, and such a 
transaction is not considered an electronic debit transaction. Likewise, 
the term ``debit card'' does not include an electronic representation of 
a check, draft, or similar paper instrument.
    9. ACH transactions. The term ``debit card'' does not include an 
account number when it is used by a person to initiate an ACH 
transaction that debits that person's account. For example, if an 
account holder buys goods or services over the Internet using an account 
number and routing number to initiate an ACH debit, the account number 
is not a debit card, and such a transaction is not considered an 
electronic debit transaction. However, the use of a card to purchase 
goods or services that debits the cardholder's account that is settled 
by means of a subsequent ACH debit initiated by the card issuer to the 
cardholder's account, as in the case of a decoupled debit card 
arrangement, involves the use of a debit card for purposes of this part.

         2(g) Designated Automated Teller Machine (ATM) Network

    1. Reasonable and convenient access clarified. Under Sec. 
235.2(g)(2), a designated ATM network includes any network of ATMs 
identified by the issuer that provides reasonable and convenient access 
to the issuer's cardholders. Whether a network provides reasonable and 
convenient access depends on the facts and circumstances, including the 
distance between ATMs in the designated network and each cardholder's 
last known home

[[Page 68]]

or work address, or if a home or work address is not known, where the 
card was first issued.

                    2(h) Electronic Debit Transaction

    1. Debit an account. The term ``electronic debit transaction'' 
includes the use of a card to debit an account. The account debited 
could be, for example, the cardholder's asset account or the account 
that holds the funds used to settle prepaid card transactions.
    2. Form of payment. The term ``electronic debit transaction'' 
includes the use of a card as a form of payment that may be made in 
exchange for goods or services, as a charitable contribution, to satisfy 
an obligation (e.g., tax liability), or for other purposes.
    3. Subsequent transactions. The term ``electronic debit 
transaction'' includes both the cardholder's use of a debit card for the 
initial payment and any subsequent use by the cardholder of the debit 
card in connection with the initial payment. For example, the term 
``electronic debit transaction'' includes using the debit card to return 
merchandise or cancel a service that then results in a debit to the 
merchant's account and a credit to the cardholder's account.
    4. Cash withdrawal at the point of sale. The term ``electronic debit 
transaction'' includes a transaction in which a cardholder uses the 
debit card both to make a purchase and to withdraw cash (known as a 
``cash-back transaction'').
    5. Geographic limitation. This regulation applies only to electronic 
debit transactions that are initiated at a merchant located in the 
United States. If a cardholder uses a debit card at a merchant located 
outside the United States to debit an account held in the United States, 
the electronic debit transaction is not subject to this part.

                      2(i) General-Use Prepaid Card

    1. Redeemable upon presentation at multiple, unaffiliated merchants. 
A prepaid card is redeemable upon presentation at multiple, unaffiliated 
merchants if such merchants agree to honor the card.
    2. Selective authorization cards. Selective authorization cards, 
(e.g., mall cards) are generally intended to be used or redeemed for 
goods or services at participating retailers within a shopping mall or 
other limited geographic area. Selective authorization cards are 
considered general-use prepaid cards, regardless of whether they carry 
the mark, logo, or brand of a payment card network, if they are 
redeemable at multiple, unaffiliated merchants.

                    2(j) Interchange Transaction fee

    1. In general. Generally, the payment card network is the entity 
that establishes and charges the interchange transaction fee to the 
acquirers or merchants. The acquirers then pay to the issuers any 
interchange transaction fee established and charged by the network. 
Acquirers typically pass the interchange transaction fee through to 
merchant-customers.
    2. Compensating an issuer. The term ``interchange transaction fee'' 
is limited to those fees that a payment card network establishes, 
charges, or receives to compensate the issuer for its role in the 
electronic debit transaction. By contrast, payment card networks 
generally charge issuers and acquirers fees for services the network 
performs. Such fees are not interchange transaction fees because the 
payment card network is charging and receiving the fee as compensation 
for services it provides.
    3. Established, charged, or received. Interchange transaction fees 
are not limited to those fees for which a payment card network sets the 
value. A fee that compensates an issuer is an interchange transaction 
fee if the fee is set by the issuer but charged to acquirers by virtue 
of the network determining each participant's net settlement position.

                               2(k) Issuer

    1. In general. A person issues a debit card by authorizing the use 
of debit card by a cardholder to perform electronic debit transactions. 
That person may provide the card directly to the cardholder or 
indirectly by using a third party (such as a processor, or a telephone 
network or manufacturer) to provide the card, or other payment code or 
device, to the cardholder. The following examples illustrate the entity 
that is the issuer under various card program arrangements. For purposes 
of determining whether an issuer is exempted under Sec. 235.5(a), 
however, the term issuer is limited to the entity that holds the account 
being debited.
    2. Traditional debit card arrangements. In a traditional debit card 
arrangement, the bank or other entity holds the cardholder's funds and 
authorizes the cardholder to use the debit card to access those funds 
through electronic debit transactions, and the cardholder receives the 
card directly or indirectly (e.g., through an agent) from the bank or 
other entity that holds the funds (except for decoupled debit cards, 
discussed below). In this system, the bank or entity holding the 
cardholder's funds is the issuer.
    3. BIN-sponsor arrangements. Payment card networks assign Bank 
Identification Numbers (BINs) to member-institutions for purposes of 
issuing cards, authorizing, clearing, settling, and other processes. In 
exchange for a fee or other financial considerations, some members of 
payment card networks permit other entities to issue debit cards using 
the member's BIN. The entity permitting the use of its BIN is referred 
to as the ``BIN sponsor'' and the entity that uses the BIN to issue 
cards is often referred to as the ``affiliate

[[Page 69]]

member.'' BIN sponsor arrangements can follow at least two different 
models:
    i. Sponsored debit card model. In some cases, a community bank or 
credit union may provide debit cards to its account holders through a 
BIN sponsor arrangement with a member institution. In general, the bank 
or credit union will authorize its account holders to use debit cards to 
perform electronic debit transactions that access funds in accounts at 
the bank or credit union. The bank or credit union's name typically will 
appear on the debit card. The bank or credit union may directly or 
indirectly provide the cards to cardholders. Under these circumstances, 
the bank or credit union is the issuer for purposes of this part. If 
that bank or credit union, together with its affiliates, has assets of 
less than $10 billion, then that bank or credit union is exempt from the 
interchange transaction fee restrictions. Although the bank or credit 
union may distribute cards through the BIN sponsors, the BIN sponsor 
does not enter into the agreement with the cardholder that authorizes 
the cardholder to use the card to perform electronic debit transactions 
that access funds in the account at the bank or credit union, and 
therefore the BIN sponsor is not the issuer.
    ii. Prepaid card model. A member institution may also serve as the 
BIN sponsor for a prepaid card program. Under these arrangements, a 
program manager distributes prepaid cards to the cardholders and the 
BIN-sponsoring institution generally holds the funds for the prepaid 
card program in an omnibus or pooled account. Either the BIN sponsor or 
the prepaid card program manager may keep track of the underlying funds 
for each individual prepaid card through subaccounts. While the 
cardholder may receive the card directly from the program manager or at 
a retailer, the BIN sponsor authorizes the cardholder to use the card to 
perform electronic debit transactions that access the funds in the 
pooled account and the cardholder's relationship generally is with the 
BIN sponsor. Accordingly, under these circumstances, the BIN sponsor, or 
the bank holding the pooled account, is the issuer.
    4. Decoupled debit cards. In the case of decoupled debit cards, an 
entity other than the bank holding the cardholder's account enters into 
a relationship with the cardholder authorizing the use of the card to 
perform electronic debit transactions. The entity authorizing the use of 
the card to perform electronic debit transaction typically arranges for 
the card to be provided directly or indirectly to the cardholder and has 
a direct relationship with the cardholder with respect to the card. The 
bank holding the cardholder's account has agreed generally to permit ACH 
debits to the account, but has not authorized the use of the debit card 
to access the funds through electronic debit transactions. Under these 
circumstances, the entity authorizing the use of the debit card, and not 
the account-holding institution, is considered the issuer. An issuer of 
a decoupled debit card is not exempt under Sec. 235.5(a), even if, 
together with its affiliates, it has assets of less than $10 billion, 
because it is not the entity holding the account to be debited.

                        2(l) Merchant [Reserved]

                        2(m) Payment Card Network

    1. In general. An entity is a considered a payment card network with 
respect to an electronic debit transaction for purposes of this rule if 
it routes information and data to the issuer from the acquirer to 
conduct authorization, clearance, and settlement of the electronic debit 
transaction. By contrast, if an entity receives transaction information 
and data from a merchant and authorizes and settles the transaction 
without routing the information and data to another entity (i.e., the 
issuer or the issuer's processor) for authorization, clearance, or 
settlement, that entity is not considered a payment card network with 
respect to the electronic debit transaction.
    2. Three-party systems. In the case of a three-party system, 
electronic debit transactions are processed by an entity that acts as 
system operator and issuer, and may also act as the acquirer. The entity 
acting as system operator and issuer that receives the transaction 
information from the merchant or acquirer also holds the cardholder's 
funds. Therefore, rather than directing the transaction information to a 
separate issuer, the entity authorizes and settles the transaction based 
on the information received from the merchant. As these entities do not 
connect (or ``network'') multiple issuers and do not route information 
to conduct the transaction, they are not ``payment card networks'' with 
respect to these transactions.
    3. Processors as payment card networks. A processor is considered a 
payment card network if, in addition to acting as processor for an 
acquirer and issuer, the processor routes transaction information and 
data received from a merchant or the merchant's acquirer to an issuer. 
For example, if a merchant uses a processor in order to accept any, 
some, or all brands of debit cards and the processor routes transaction 
information and data to the issuer or issuer's processor, the merchant's 
processor is considered a payment card network with respect to the 
electronic debit transaction. If the processor establishes, charges, or 
receives a fee for the purpose of compensating an issuer, that fee is 
considered an interchange transaction fee for purposes of this part.
    4. Automated clearing house (ACH) operators. An ACH operator is not 
considered a payment card network for purposes of this part. While an 
ACH operator processes transactions that debit an account and provides

[[Page 70]]

for interbank clearing and settlement of such transactions, a person 
does not use the ACH system to accept as a form of payment a brand of 
debit card.
    5. ATM networks. An ATM network is not considered a payment card 
network for purposes of this part. While ATM networks process 
transactions that debit an account and provide for interbank clearing 
and settlement of such transactions, a cash withdrawal from an ATM is 
not a payment because there is no exchange of money for goods or 
services, or payment made as a charitable contribution, to satisfy an 
obligation (e.g., tax liability), or for other purposes.

                         2(n) Person [Reserved]

                             2(o) Processor

    1. Distinction from acquirers. A processor may perform all 
transaction-processing functions for a merchant or acquirer, but if it 
does not acquire (that is, settle with the merchant for the 
transactions), it is not an acquirer. The entity that acquirers 
electronic debit transactions is the entity that is responsible to other 
parties to the electronic debit transaction for the amount of the 
transaction.
    2. Issuers. A processor may perform services related to 
authorization, clearance, and settlement of transactions for an issuer 
without being considered to be an issuer for purposes of this part.

                               2(p) Route

    1. An entity routes information if it both directs and sends the 
information to an unaffiliated entity (or affiliated entity acting on 
behalf of the unaffiliated entity). This other entity may be a payment 
card network or processor (if the entity directing and sending the 
information is a merchant or an acquirer) or an issuer or processor (if 
the entity directing and sending the information is a payment card 
network).

                      2(q) United States [Reserved]

 Section 235.3 Reasonable and Proportional Interchange Transaction Fees

                             3(a) [Reserved]

            3(b) Determining Reasonable and Proportional Fees

    1. Two components. The standard for the maximum permissible 
interchange transaction fee that an issuer may receive consists of two 
components: a base component that does not vary with a transaction's 
value and an ad valorem component. The amount of any interchange 
transaction fee received or charged by an issuer may not exceed the sum 
of the maximum permissible amounts of each component and any fraud-
prevention adjustment the issuer is permitted to receive under Sec. 
235.4 of this part.
    2. Variation in interchange fees. An issuer is permitted to charge 
or receive, and a network is permitted to establish, interchange 
transaction fees that vary in their base component and ad valorem 
component based on, for example, the type of transaction or merchant, 
provided the amount of any interchange transaction fee for any 
transaction does not exceed the sum of the maximum permissible base 
component of 21 cents and 5 basis points of the value of the 
transaction.
    3. Example. For a $39 transaction, the maximum permissible 
interchange transaction fee is 22.95 cents (21 cents plus 5 basis points 
of $39). A payment card network may, for example, establish an 
interchange transaction fee of 22 cents without any ad valorem 
component.

                Section 235.4 Fraud-Prevention Adjustment

                          4(b) Issuer Standards

    1. In general. Section 235.4(b) does not specify particular policies 
and procedures that an issuer must implement. Rather, an issuer must 
determine which policies and procedures are reasonably designed to 
achieve the objectives set forth in the standards. An issuer's policies 
and procedures must include fraud-prevention technologies and other 
methods or practices reasonably designed to detect, prevent, and 
mitigate fraudulent electronic debit transactions. An issuer does not 
satisfy the standards in Sec. 235.4(b) if it merely develops policies 
and procedures; the issuer also must implement those policies and 
procedures. Implementing an issuer's fraud-prevention policies and 
procedures should include training the issuer's employees and agents, as 
appropriate.
    2. An issuer's policies and procedures should address, among other 
things, fraud related to debit card use by unauthorized persons, which 
is a type of fraud that can be effectively addressed by the issuer, as 
the entity with the direct relationship with the cardholder and that 
authorizes the transaction. Examples of use by unauthorized persons 
include the following:
    i. A thief steals a cardholder's wallet and uses the debit card to 
purchase goods, without the authority of the cardholder.
    ii. A cardholder makes a $100 purchase at a merchant. Subsequently, 
the merchant's employee uses information from the debit card to initiate 
a subsequent transaction for an additional $100, without the authority 
of the cardholder.
    iii. A hacker steals cardholder account information from a merchant 
processor and uses that information to make unauthorized purchases of 
goods or services.
    Paragraph 4(b)(1)(i). Identify and prevent fraudulent debit card 
transactions.

[[Page 71]]

    1. In general. An issuer shall develop and implement policies and 
procedures reasonably designed to identify and prevent fraudulent 
electronic debit transactions. These policies and procedures should 
include activities to prevent, detect, and mitigate fraud even if the 
costs of these activities are not recoverable as part of the fraud-
prevention adjustment. The issuer's policies and procedures may include 
the following:
    i. An automated mechanism to assess the risk that a particular 
electronic debit transaction is fraudulent during the authorization 
process (i.e., before the issuer approves or declines an authorization 
request). For example, an issuer may use neural networks to identify 
transactions that present increased risk of fraud. As a result of this 
analysis, the issuer may decide to decline to authorize these 
transactions. An issuer may not be able to determine whether a given 
transaction in isolation is fraudulent at the time of authorization, and 
therefore may have policies and procedures that monitor sets of 
transactions initiated with a cardholder's debit card. For example, an 
issuer could compare a set of transactions initiated with the card to a 
customer's typical transactions in order to determine whether a 
transaction is likely to be fraudulent. Similarly, an issuer could 
compare a set of transactions initiated with a debit card and common 
fraud patterns in order to determine whether a transaction or future 
transaction is likely to be fraudulent.
    ii. Practices to support reporting of lost and stolen cards or 
suspected incidences of fraud by cardholders or other parties to a 
transaction. As an example, an issuer may promote customer awareness by 
providing text alerts of transactions in order to detect fraudulent 
transactions in a timely manner. An issuer may also report debit cards 
suspected of being fraudulent to their networks for inclusion in a 
database of compromised cards.
    iii. Practices to help determine whether a user is authorized to use 
the card at the time of a transaction. For example, an issuer may 
specify the use of particular technologies or methods, such as dynamic 
data, to better authenticate a cardholder at the point of sale.
    2. Review of authentication methods. The issuer's policies and 
procedures should include an assessment of the effectiveness of the 
different authentication methods that the issuer enables its cardholders 
to use, including a review of the rate of fraudulent transactions for 
each authentication method. If one method of authentication results in 
significantly lower fraud losses than other method(s) of authentication 
enabled on the issuer's debit cards, the issuer should consider 
practices to encourage its cardholders to use the more effective 
authentication method. It should also consider methods for reducing 
fraud related to the authentication method that experiences higher fraud 
rates. In addition, the issuer should monitor industry developments and 
consider adopting, where practical, new method(s) of authentication that 
are materially more effective than the methods currently available to 
its cardholders.
    Paragraph 4(b)(1)(ii). Monitor the incidence of, reimbursements 
received for, and losses incurred from fraudulent electronic debit 
transactions.
    1. In order to inform its policies and procedures, an issuer must be 
able to track its fraudulent electronic debit transactions over time. 
Accordingly, an issuer must have policies and procedures designed to 
monitor the types, number, and value of fraudulent electronic debit 
transactions. In addition, an issuer must track its and its cardholders' 
losses from fraudulent electronic debit transactions, its fraud-related 
chargebacks to acquirers, and any reimbursements from other parties. 
Other reimbursements could include payments made to issuers as a result 
of fines assessed to merchants for noncompliance with Payment Card 
Industry (PCI) Data Security Standards or other industry standards.
    Paragraph 4(b)(1)(iii). Respond to suspicious electronic debit 
transactions.
    1. An issuer may identify transactions that it suspects to be 
fraudulent after it has authorized or settled the transaction. For 
example, a cardholder may inform the issuer that the cardholder did not 
authorize a transaction or transactions, or the issuer may learn of a 
fraudulent transaction or possibly compromised debit cards from the 
network, the acquirer, or other parties. An issuer must have policies 
and procedures in place designed to implement an appropriate response 
once an issuer has identified suspicious transactions or transactions 
likely to be fraudulent. The appropriate response is likely to differ 
depending on the circumstances and the risk of future fraudulent 
electronic debit transactions. For example, in some circumstances, it 
may be sufficient for an issuer to monitor more closely the account with 
the suspicious transactions. In other circumstances, it may be necessary 
to reissue cards or close the account. An appropriate response may also 
require coordination with industry organizations, law enforcement 
agencies, and other parties, such as payment card networks, merchants, 
and issuer or merchant processors. An appropriate response would be 
reasonably designed to mitigate fraud losses due to suspicious 
transactions and transactions alleged to be fraudulent across all 
parties to such transactions.
    2. An issuer's policies and procedures do not provide an appropriate 
response if they merely shift the loss to another party, other than the 
party that committed the fraud.

[[Page 72]]

    Paragraph 4(b)(1)(iv). Secure debit card and cardholder data.
    1. An issuer must have policies and procedures designed to secure 
debit card and cardholder data that are transmitted by the issuer (or 
its service provider) during transaction processing, that are stored by 
the issuer (or its service provider), and that are carried on media 
(e.g., laptops, transportable data storage devices) by employees or 
agents of the issuer. This standard may be incorporated into an issuer's 
information security program, as required by Section 501(b) of the 
Gramm-Leach-Bliley Act.
    Paragraph 4(b)(2) Annual review
    1. Periodic updates of policies and procedures. In general, an 
issuer must review its policies and procedures at least annually. In 
certain circumstances, however, an issuer may need to review and update 
its policies and procedures more frequently than once a year. For 
example, during a particular year, there may be significant changes in 
fraud types, fraud patterns, or fraud-prevention methods or 
technologies. If a significant change occurs, an issuer must review and, 
if necessary, update its fraud-prevention policies and procedures to 
address the significant change, even if the issuer has reviewed its 
policies and procedures within the preceding year.

                           4(c) Certification.

    1. To be eligible to receive the fraud-prevention adjustment, each 
issuer must certify its compliance with the Board's fraud-prevention 
standards to the payment card networks in which it participates on an 
annual basis. Payment card networks that plan to allow issuers to 
receive or charge a fraud-prevention adjustment will develop their own 
processes for identifying issuers eligible for this adjustment. An 
issuer need not certify if it chooses not to receive any fraud-
prevention adjustment available through a network.

   Section 235.5 Exemptions for Certain Electronic Debit Transactions

    1. Eligibility for multiple exemptions. An electronic debit 
transaction may qualify for one or more exemptions. For example, a debit 
card that has been provided to a person pursuant to a Federal, State, or 
local government-administered payment program may be issued by an entity 
that, together with its affiliates, has assets of less than $10 billion 
as of the end of the preceding calendar year. In this case, an 
electronic debit transaction made using that card may qualify for the 
exemption under Sec. 235.5(a) for small issuers or for the exemption 
under Sec. 235.5(b) for government-administered payment programs. A 
payment card network establishing interchange fees for transactions that 
qualify for more than one exemption need only satisfy itself that the 
issuer's transactions qualify for at least one of the exemptions in 
order to exempt the electronic debit transaction from the interchange 
fee restrictions.
    2. Certification process. Payment card networks that plan to allow 
issuers to receive higher interchange fees than permitted under 
Sec. Sec. 235.3 and 235.4 pursuant to one of the exemptions in Sec. 
235.5 could develop their own processes for identifying issuers and 
products eligible for such exemptions. Section 235.5(a)(2) permits 
payment card networks to rely on lists published by the Board to help 
determine eligibility for the small issuer exemption set forth in Sec. 
235.5(a)(1).

                    5(a) Exemption for Small Issuers

    1. Asset size determination. An issuer would qualify for the small-
issuer exemption if its total worldwide banking and nonbanking assets, 
including assets of affiliates, other than trust assets under 
management, are less than $10 billion, as of December 31 of the 
preceding calendar year.
    2. Change in status. If an exempt issuer becomes covered based on 
its and its affiliates assets at the end of a calendar year, that issuer 
must begin complying with the interchange fee standards (Sec. 235.3), 
the fraud-prevention adjustment standards (to the extent the issuer 
wishes to receive a fraud-prevention adjustment) (Sec. 235.4), and the 
provisions prohibiting circumvention, evasion, and net compensation 
(Sec. 235.6) no later than July 1.

       5(b) Exemption for Government-Administered Payment Programs

    1. Government-administered payment program. A program is considered 
government-administered regardless of whether a Federal, State, or local 
government agency operates the program or outsources some or all 
functions to third parties so long as the program is operated on behalf 
of the government agency. In addition, a program may be government-
administered even if a Federal, State, or local government agency is not 
the source of funds for the program it administers. For example, child 
support programs are government-administered programs even though a 
Federal, State, or local government agency is not the source of funds. A 
tribal government is considered a local government for purposes of this 
exemption.

           5(c) Exemption for Certain Reloadable Prepaid Cards

    1. Subaccount clarified. A subaccount is an account within an 
account, opened in the name of an agent, nominee, or custodian for the 
benefit of two or more cardholders, where the transactions and balances 
of individual cardholders are tracked in such subaccounts. An account 
that is opened solely in the name of a single cardholder is not a 
subaccount.

[[Page 73]]

    2. Reloadable. A general-use prepaid card is ``reloadable'' if the 
terms and conditions of the agreement permit funds to be added to the 
general-use prepaid card at any time after the initial purchase or 
issuance. A general-use prepaid card is not ``reloadable'' merely 
because the issuer or processor is technically able to add functionality 
that would otherwise enable the general-use prepaid card to be reloaded.
    3. Marketed or labeled as a gift card or gift certificate. i. 
Electronic debit transactions made using a reloadable general-use 
prepaid card are not exempt from the interchange fee restrictions if the 
card is marketed or labeled as a gift card or gift certificate. The term 
``marketed or labeled as a gift card or gift certificate'' means 
directly or indirectly offering, advertising or otherwise suggesting the 
potential use of a general-use prepaid card as a gift for another 
person. Whether the exclusion applies generally does not depend on the 
type of entity that makes the promotional message. For example, a card 
may be marketed or labeled as a gift card or gift certificate if anyone 
(other than the purchaser of the card), including the issuer, the 
retailer, the program manager that may distribute the card, or the 
payment network on which a card is used, promotes the use of the card as 
a gift card or gift certificate. A general-use prepaid card is marketed 
or labeled as a gift card or gift certificate even if it is only 
occasionally marketed as a gift card or gift certificate. For example, a 
network-branded general purpose reloadable card would be marketed or 
labeled as a gift card or gift certificate if the issuer principally 
advertises the card as a less costly alternative to a bank account but 
promotes the card in a television, radio, newspaper, or Internet 
advertisement, or on signage as ``the perfect gift'' during the holiday 
season.
    ii. The mere mention of the availability of gift cards or gift 
certificates in an advertisement or on a sign that also indicates the 
availability of exempted general-use prepaid cards does not by itself 
cause the general-use prepaid card to be marketed as a gift card or a 
gift certificate. For example, the posting of a sign in a store that 
refers to the availability of gift cards does not by itself constitute 
the marketing of otherwise exempted general-use prepaid cards that may 
also be sold in the store along with gift cards or gift certificates, 
provided that a person acting reasonably under the circumstances would 
not be led to believe that the sign applies to all cards sold in the 
store. (See, however, comment 5(c)-4.ii.)
    4. Examples of marketed or labeled as a gift card or gift 
certificate.
    i. The following are examples of marketed or labeled as a gift card 
or gift certificate:
    A. Using the word ``gift'' or ``present'' on a card or accompanying 
material, including documentation, packaging and promotional displays;
    B. Representing or suggesting that a card can be given to another 
person, for example, as a ``token of appreciation'' or a ``stocking 
stuffer,'' or displaying a congratulatory message on the card or 
accompanying material;
    C. Incorporating gift-giving or celebratory imagery or motifs, such 
as a bow, ribbon, wrapped present, candle, or a holiday or 
congratulatory message, on a card, accompanying documentation, or 
promotional material;
    ii. The term does not include the following:
    A. Representing that a card can be used as a substitute for a 
checking, savings, or deposit account;
    B. Representing that a card can be used to pay for a consumer's 
health-related expenses--for example, a card tied to a health savings 
account;
    C. Representing that a card can be used as a substitute for 
travelers checks or cash;
    D. Representing that a card can be used as a budgetary tool, for 
example, by teenagers, or to cover emergency expenses.
    5. Reasonable policies and procedures to avoid marketing as a gift 
card. The exemption for a general-use prepaid card that is reloadable 
and not marketed or labeled as a gift card or gift certificate in Sec. 
235.5(c) applies if a reloadable general-use prepaid card is not 
marketed or labeled as a gift card or gift certificate and if persons 
involved in the distribution or sale of the card, including issuers, 
program managers, and retailers, maintain policies and procedures 
reasonably designed to avoid such marketing. Such policies and 
procedures may include contractual provisions prohibiting a reloadable 
general-use prepaid card from being marketed or labeled as a gift card 
or gift certificate, merchandising guidelines or plans regarding how the 
product must be displayed in a retail outlet, and controls to regularly 
monitor or otherwise verify that the general-use prepaid card is not 
being marketed as a gift card. Whether a general-use prepaid card has 
been marketed as a gift card or gift certificate will depend on the 
facts and circumstances, including whether a reasonable person would be 
led to believe that the general-use prepaid card is a gift card or gift 
certificate. The following examples illustrate the application of Sec. 
235.5(c):
    i. An issuer or program manager of prepaid cards agrees to sell 
general-purpose reloadable cards through a retailer. The contract 
between the issuer or program manager and the retailer establishes the 
terms and conditions under which the cards may be sold and marketed at 
the retailer. The terms and conditions prohibit the general-purpose 
reloadable cards from being marketed as a gift card or gift certificate, 
and require policies and procedures to regularly monitor or otherwise 
verify that the cards are not being

[[Page 74]]

marketed as such. The issuer or program manager sets up one promotional 
display at the retailer for gift cards and another physically separated 
display for exempted products under Sec. 235.5(c), including general-
purpose reloadable cards, such that a reasonable person would not 
believe that the exempted cards are gift cards. The exemption in Sec. 
235.5(c) applies because policies and procedures reasonably designed to 
avoid the marketing of the general-purpose reloadable cards as gift 
cards or gift certificates are maintained, even if a retail clerk 
inadvertently stocks or a consumer inadvertently places a general-
purpose reloadable card on the gift card display.
    ii. Same facts as in comment 5(c)-5.i, except that the issuer or 
program manager sets up a single promotional display at the retailer on 
which a variety of prepaid cards are sold, including store gift cards 
and general-purpose reloadable cards. A sign stating ``Gift Cards'' 
appears prominently at the top of the display. The exemption in Sec. 
235.5(c) does not apply with respect to the general-purpose reloadable 
cards because policies and procedures reasonably designed to avoid the 
marketing of exempted cards as gift cards or gift certificates are not 
maintained.
    iii. Same facts as in comment 5(c)-5.i, except that the issuer or 
program manager sets up a single promotional multi-sided display at the 
retailer on which a variety of prepaid card products, including store 
gift cards and general-purpose reloadable cards are sold. Gift cards are 
segregated from exempted cards, with gift cards on one side of the 
display and exempted cards on a different side of a display. Signs of 
equal prominence at the top of each side of the display clearly 
differentiate between gift cards and the other types of prepaid cards 
that are available for sale. The retailer does not use any more 
conspicuous signage suggesting the general availability of gift cards, 
such as a large sign stating ``Gift Cards'' at the top of the display or 
located near the display. The exemption in Sec. 235.5(c) applies 
because policies and procedures reasonably designed to avoid the 
marketing of the general-purpose reloadable cards as gift cards or gift 
certificates are maintained, even if a retail clerk inadvertently stocks 
or a consumer inadvertently places a general-purpose reloadable card on 
the gift card display.
    iv. Same facts as in comment 5(c)-5.i, except that the retailer 
sells a variety of prepaid card products, including store gift cards and 
general-purpose reloadable cards, arranged side-by-side in the same 
checkout lane. The retailer does not affirmatively indicate or represent 
that gift cards are available, such as by displaying any signage or 
other indicia at the checkout lane suggesting the general availability 
of gift cards. The exemption in Sec. 235.5(c) applies because policies 
and procedures reasonably designed to avoid marketing the general-
purpose reloadable cards as gift cards or gift certificates are 
maintained.
    6. On-line sales of prepaid cards. Some web sites may prominently 
advertise or promote the availability of gift cards or gift certificates 
in a manner that suggests to a consumer that the web site exclusively 
sells gift cards or gift certificates. For example, a web site may 
display a banner advertisement or a graphic on the home page that 
prominently states ``Gift Cards,'' ``Gift Giving,'' or similar language 
without mention of other available products, or use a web address that 
includes only a reference to gift cards or gift certificates in the 
address. In such a case, a consumer acting reasonably under the 
circumstances could be led to believe that all prepaid products sold on 
the web site are gift cards or gift certificates. Under these facts, the 
web site has marketed all such products as gift cards or gift 
certificates, and the exemption in Sec. 235.5(c) does not apply to any 
products sold on the web site.
    7. Temporary non-reloadable cards issued in connection with a 
general-use reloadable card. Certain general-purpose prepaid cards that 
are typically marketed as an account substitute initially may be sold or 
issued in the form of a temporary non-reloadable card. After the card is 
purchased, the cardholder is typically required to call the issuer to 
register the card and to provide identifying information in order to 
obtain a reloadable replacement card. In most cases, the temporary non-
reloadable card can be used for purchases until the replacement 
reloadable card arrives and is activated by the cardholder. Because the 
temporary non-reloadable card may only be obtained in connection with 
the reloadable card, the exemption in Sec. 235.5(c) applies so long as 
the card is not marketed as a gift card or gift certificate.

                             5(d) Exception

    1. Additional ATM access. Some debit cards may be used to withdraw 
cash from ATMs that are not part of the issuer's designated ATM network. 
An electronic debit card transaction may still qualify for the exemption 
under Sec. Sec. 235.5(b) or (c) with a respect to a card for which a 
fee may be imposed for a withdrawal from an ATM that is outside of the 
issuer's designated ATM network as long as the card complies with the 
condition set forth in Sec. 235.5(d)(2) for withdrawals within the 
issuer's designated ATM network. The condition with respect to ATM fees 
does not apply to cards that do not provide ATM access.

      Section 235.6 Prohibition on Circumvention, Evasion, and Net 
                              Compensation

    1. No applicability to exempt issuers or electronic debit 
transactions. The prohibition

[[Page 75]]

against circumventing or evading the interchange transaction fee 
restrictions or against net compensation does not apply to issuers or 
electronic debit transactions that qualify for an exemption under Sec. 
235.5 from the interchange transaction fee restrictions.

              6(a) Prohibition of Circumvention or Evasion

    1. Finding of circumvention or evasion. A finding of evasion or 
circumvention will depend on all relevant facts and circumstances. 
Although net compensation may be one form of circumvention or evasion 
prohibited under Sec. 235.6(a), it is not the only form.
    2. Examples of circumstances that may constitute circumvention or 
evasion.
    The following examples do not constitute per se circumvention or 
evasion, but may warrant additional supervisory scrutiny to determine 
whether the totality of the facts and circumstances constitute 
circumvention or evasion:
    i. A payment card network decreases network processing fees paid by 
issuers for electronic debit transactions by 50 percent and increases 
the network processing fees charged to merchants or acquirers with 
respect to electronic debit transactions by a similar amount. Because 
the requirements of this subpart do not restrict or otherwise establish 
the amount of fees that a network may charge for its services, the 
increase in network fees charged to merchants or acquirers and decrease 
in fees charged to issuers is not a per se circumvention or evasion of 
the interchange transaction fee standards, but may warrant additional 
supervisory scrutiny to determine whether the facts and circumstances 
constitute circumvention or evasion.
    ii. An issuer replaces its debit cards with prepaid cards that are 
exempt from the interchange limits of Sec. Sec. 235.3 and 235.4. The 
exempt prepaid cards are linked to its customers' transaction accounts 
and funds are swept from the transaction accounts to the prepaid 
accounts as needed to cover transactions made. Again, this arrangement 
is not per se circumvention or evasion, but may warrant additional 
supervisory scrutiny to determine whether the facts and circumstances 
constitute circumvention or evasion.

                  6(b) Prohibition of Net Compensation

    1. Net compensation. Net compensation to an issuer through the use 
of network fees is prohibited.
    2. Consideration of payments or incentives provided by the network 
in net compensation determination.
    i. For purposes of the net compensation determination, payments or 
incentives paid by a payment card network to an issuer with respect to 
electronic debit transactions or debit card related activities could 
include, but are not limited to, marketing incentives; payments or 
rebates for meeting or exceeding a specific transaction volume, 
percentage share, or dollar amount of transactions processed; or other 
payments for debit card related activities. For example, signing bonuses 
paid by a network to an issuer for the issuer's debit card portfolio 
would also be included in the total amount of payments or incentives 
received by an issuer from a payment card network with respect to 
electronic debit transactions. A signing bonus for an entire card 
portfolio, including credit cards, may be allocated to the issuer's 
debit card business based on the proportion of the cards or transactions 
that are debit cards or electronic debit transactions, as appropriate to 
the situation, for purposes of the net compensation determination.
    ii. Incentives paid by the network with respect to multiple-year 
contracts may be allocated over the life of the contract.
    iii. For purposes of the net compensation determination, payments or 
incentives paid by a payment card network with respect to electronic 
debit transactions or debit card-related activities do not include 
interchange transaction fees that are passed through to the issuer by 
the network, or discounts or rebates provided by the network or an 
affiliate of the network for issuer-processor services. In addition, 
funds received by an issuer from a payment card network as a result of 
chargebacks, fines paid by merchants or acquirers for violations of 
network rules, or settlements or recoveries from merchants or acquirers 
to offset the costs of fraudulent transactions or a data security breach 
do not constitute incentives or payments made by a payment card network.
    3. Consideration of fees paid by an issuer in net compensation 
determination.
    i. For purposes of the net compensation determination, fees paid by 
an issuer to a payment card network with respect to electronic debit 
transactions or debit card related activities include, but are not 
limited to, membership or licensing fees, network administration fees, 
and fees for optional network services, such as risk management 
services.
    ii. For purposes of the net compensation determination, fees paid by 
an issuer to a payment card network with respect to electronic debit 
transactions or debit card-related activities do not include network 
processing fees (such as switch fees and network connectivity fees) or 
fees paid to an issuer processor affiliated with the network for 
authorizing, clearing, or settling an electronic debit transaction.
    4. Example of circumstances not involving net compensation to the 
issuer. The following example illustrates circumstances that would not 
indicate net compensation by the payment card network to the issuer:

[[Page 76]]

    i. Because of an increase in debit card transactions that are 
processed through a payment card network during a calendar year, an 
issuer receives an additional volume-based incentive payment from the 
network for that period. Over the same period, however, the total 
network fees (other than processing fees) the issuer pays the payment 
card network with respect to debit card transactions also increase so 
that the total amount of fees paid by the issuer to the network continue 
to exceed incentive payments by the network to the issuer. Under these 
circumstances, the issuer does not receive net compensation from the 
network for electronic debit transactions or debit card related 
activities.

         Section 235.7 Limitations on Payment Card Restrictions

    1. Application of small issuer, government-administered payment 
program, and reloadable card exemptions to payment card network 
restrictions. The exemptions under Sec. 235.5 for small issuers, cards 
issued pursuant to government-administered payment programs, and certain 
reloadable prepaid cards do not apply to the limitations on payment card 
network restrictions. For example, debit cards for government-
administered payment programs, although exempt from the restrictions on 
interchange transaction fees, are subject to the requirement that 
electronic debit transactions made using such cards must be capable of 
being processed on at least two unaffiliated payment card networks and 
to the prohibition on inhibiting a merchant's ability to determine the 
routing for electronic debit transactions.

                 7(a) Prohibition on Network Exclusivity

    1. Scope of restriction. Section 235.7(a) requires a debit card 
subject to the regulation to be enabled on at least two unaffiliated 
payment card networks. This paragraph does not, however, require an 
issuer to have two or more unaffiliated networks available for each 
method of cardholder authentication. For example, it is sufficient for 
an issuer to issue a debit card that operates on one signature-based 
card network and on one PIN-based card network, as long as the two card 
networks are not affiliated. Alternatively, an issuer may issue a debit 
card that is accepted on two unaffiliated signature-based card networks 
or on two unaffiliated PIN-based card networks. See also, comment 7(a)-
7.
    2. Permitted networks. i. A smaller payment card network could be 
used to help satisfy the requirement that an issuer enable two 
unaffiliated networks if the network was willing to expand its coverage 
in response to increased merchant demand for access to its network and 
it meets the other requirements for a permitted arrangement, including 
taking steps reasonably designed to enable it to process the electronic 
debit transactions that it would reasonably expect to be routed to it. 
If, however, the network's policy or practice is to limit such 
expansion, it would not qualify as one of the two unaffiliated networks.
    ii. A payment card network that is accepted only at a limited 
category of merchants (such as a particular grocery store chain, 
merchants located in a particular shopping mall, or a single class of 
merchants, such as grocery stores or gas stations) would not satisfy the 
rule.
    iii. One of the steps a network can take to form a reasonable 
expectation of transaction volume is to consider factors such as the 
number of cards expected to be issued that are enabled on the network 
and expected card usage patterns.
    3. Examples of prohibited network restrictions on an issuer's 
ability to contract. The following are examples of prohibited network 
restrictions on an issuer's ability to contract with other payment card 
networks:
    i. Network rules or contract provisions limiting or otherwise 
restricting the other payment card networks that may be enabled on a 
particular debit card, or network rules or contract provisions that 
specify the other networks that may be enabled on a particular debit 
card.
    ii. Network rules or guidelines that allow only that network's (or 
its affiliated network's) brand, mark, or logo to be displayed on a 
particular debit card, or that otherwise limit the ability of brands, 
marks, or logos of other payment card networks to appear on the debit 
card.
    4. Network logos or symbols on card not required. Section 235.7(a) 
does not require that a debit card display the brand, mark, or logo of 
each payment card network over which an electronic debit transaction may 
be processed. For example, this rule does not require a debit card that 
is enabled for two or more unaffiliated payment card networks to bear 
the brand, mark, or logo for each card network.
    5. Voluntary exclusivity arrangements prohibited. Section 235.7(a) 
requires the issuance of debit cards that are enabled on at least two 
unaffiliated payment card networks, even if the issuer is not subject to 
any rule of, or contract or other agreement with, a payment card network 
requiring that all or a specified minimum percentage of electronic debit 
transactions be processed on the network or its affiliated networks.
    6. Affiliated payment card networks. Section 235.7(a) does not 
prohibit an issuer from including an affiliated payment card network 
among the networks that may process an electronic debit transaction with 
respect to a particular debit card, as long as at least two of the 
networks that are enabled on the card are unaffiliated. For example, an 
issuer

[[Page 77]]

may offer debit cards that are accepted on a payment card network for 
signature debit transactions and on an affiliated payment card network 
for PIN debit transactions as long as those debit cards may also be 
accepted on another unaffiliated payment card network.
    7. Application of rule regardless of form factor. The network 
exclusivity provisions in Sec. 235.7(a) require that all debit cards be 
enabled on at least two unaffiliated payment card networks for 
electronic debit transactions, regardless of whether the debit card is 
issued in card form. This applies to any supplemental device, such as a 
fob or token, or chip or application in a mobile phone, that is issued 
in connection with a plastic card, even if that plastic card fully 
complies with the rule.

                7(b) Prohibition on Routing Restrictions

    1. Relationship to the network exclusivity restrictions. An issuer 
or payment card network is prohibited from inhibiting a merchant's 
ability to route or direct an electronic debit transaction over any of 
the payment card networks that the issuer has enabled to process an 
electronic debit transaction for that particular debit card. This rule 
does not permit a merchant to route the transaction over a network that 
the issuer did not enable to process transactions using that debit card.
    2. Examples of prohibited merchant restrictions. The following are 
examples of issuer or network practices that would inhibit a merchant's 
ability to direct the routing of an electronic debit transaction that 
are prohibited under Sec. 235.7(b):
    i. Prohibiting a merchant from encouraging or discouraging a 
cardholder's use of a particular method of debit card authorization, 
such as rules prohibiting merchants from favoring a cardholder's use of 
PIN debit over signature debit, or from discouraging the cardholder's 
use of signature debit.
    ii. Establishing network rules or designating issuer priorities 
directing the processing of an electronic debit transaction on a 
specified payment card network or its affiliated networks, or directing 
the processing of the transaction away from a specified network or its 
affiliates, except as a default rule in the event the merchant, or its 
acquirer or processor, does not designate a routing preference, or if 
required by state law.
    iii. Requiring a specific payment card network based on the type of 
access device provided to the cardholder by the issuer.
    3. Merchant payments not prohibited. A payment card network does not 
restrict a merchant's ability to route transactions over available 
payment card networks in violation of Sec. 235.7(b) by offering 
payments or other incentives to encourage the merchant to route 
electronic debit card transactions to the network for processing.
    4. Real-time routing decision not required. A merchant need not make 
network routing decisions on a transaction-by-transaction basis. A 
merchant and its acquirer or processor may agree to a pre-determined set 
of routing choices that apply to all electronic debit transactions that 
are processed by the acquirer or processor on behalf of the merchant.
    5. No effect on network rules governing the routing of subsequent 
transactions. Section 235.7 does not supersede a network rule that 
requires a chargeback or return of an electronic debit transaction to be 
processed on the same network that processed the original transaction.

                           7(c) Effective Date

    1. Health care and employee benefit cards. Section 235.7(c)(1) 
delays the effective date of the network exclusivity provisions for 
certain debit cards issued in connection with a health care or employee 
benefit account to the extent such cards use (even if not required) 
transaction substantiation or qualification authorization systems at 
point of sale to verify that the card is only used for eligible goods 
and services for purposes of qualifying for favorable tax treatment 
under Internal Revenue Code requirements. Debit cards that may qualify 
for the delayed effective date include, but may not be limited to, cards 
issued in connection with flexible spending accounts established under 
section 125 of the Internal Revenue Code for health care related 
expenses and health reimbursement accounts established under section 105 
of the Internal Revenue Code.

        Section 235.8 Reporting Requirements and Record Retention

    [Reserved]

                Section 235.9 Administrative Enforcement

    [Reserved]

              Section 235.10 Effective and Compliance Dates

    [Reserved]

[76 FR 43466, July 20, 2011, as amended at 76 FR 43487, July 20, 2011]



PART 238_SAVINGS AND LOAN HOLDING COMPANIES (REGULATION LL)--
Table of Contents



                      Subpart A_General Provisions

Sec.
238.1 Authority, purpose and scope.
238.2 Definitions.
238.3 Administration.
238.4 Records, reports, and inspections.

[[Page 78]]

238.5 Audit of savings association holding companies.
238.6 Penalties for violations.
238.7 Tying restriction exception.
238.8 Safe and sound operations.

   Subpart B_Acquisitions of Savings Association Securities or Assets

238.11 Transactions requiring Board approval.
238.12 Transactions not requiring Board approval.
238.13 Prohibited acquisitions.
238.14 Procedural requirements.
238.15 Factors considered in acting on applications.

                      Subpart C_Control Proceedings

238.21 Control proceedings.

                    Subpart D_Change in Bank Control

238.31 Transactions requiring prior notice.
238.32 Transactions not requiring prior notice.
238.33 Procedures for filing, processing, publishing, and acting on 
          notices.

                   Subpart E_Qualified Stock Issuances

238.41 Qualified stock issuances by undercapitalized savings 
          associations or holding companies.

 Subpart F_Savings and Loan Holding Company Activities and Acquisitions

238.51 Prohibited activities.
238.52 Exempt savings and loan holding companies and grandfathered 
          activities.
238.53 Prescribed services and activities of savings and loan holding 
          companies.
238.54 Permissible bank holding company activities of savings and loan 
          holding companies.

             Subpart G_Financial Holding Company Activities

238.61 Scope.
238.62 Definitions.
238.63 Requirements to engage in financial holding company activities.
238.64 Election required.
238.65 Election procedures.
238.66 Ongoing requirements.

   Subpart H_Notice of Change of Director or Senior Executive Officer

238.71 Purpose.
238.72 Definitions.
238.73 Prior notice requirements.
238.74 Filing and processing procedures.
238.75 Standards for review.
238.76 Waiting period.
238.77 Waiver of prior notice requirement.

   Subpart I_Prohibited Service at Savings and Loan Holding Companies

238.81 Purpose.
238.82 Definitions.
238.83 Prohibited actions.
238.84 Covered convictions or agreements to enter into pre-trial 
          diversions or similar programs.
238.85 Adjudications and offenses not covered.
238.86 Exemptions.
238.87 Filing procedures.
238.88 Factors for review.
238.89 Board action.
239.90 Hearings.

                Subpart J_Management Official Interlocks

238.91 Authority, purpose, and scope.
238.92 Definitions.
238.93 Prohibitions.
238.94 Interlocking relationships permitted by statute.
238.95 Small market share exemption.
238.96 General exemption.
238.97 Change in circumstances.
238.98 Enforcement.
238.99 Interlocking relationships permitted pursuant to Federal Deposit 
          Insurance Act.

         Subpart K_Dividends by Subsidiary Savings Associations

238.101 Authority and purpose.
238.102 Definitions.
238.103 Filing requirement.
238.104 Board action and criteria for review.

 Subpart L_Investigative Proceedings and Formal Examination Proceedings

238.111 Scope.
238.112 Definitions.
238.113 Confidentiality of proceedings.
238.114 Transcripts.
238.115 Rights of witnesses.
238.116 Obstruction of proceedings.
238.117 Subpoenas.

    Authority: 5 U.S.C. 552, 559; 12 U.S.C. 1462, 1462a, 1463, 1464, 
1467, 1467a, 1468, 1813, 1817, 1829e, 1831i, 1972; 15 U.S.C. 78 l.

    Source: Regulation LL, 76 FR 56532, Sept. 13, 2011, unless otherwise 
noted.



                      Subpart A_General Provisions



Sec. 238.1  Authority, purpose and scope.

    (a) Authority. This part is issued by the Board of Governors of the 
Federal Reserve System (Board) under section 10(g) of the Home Owners' 
Loan Act

[[Page 79]]

(HOLA); section 7(j)(13) of the Federal Deposit Insurance Act, as 
amended by the Change in Bank Control Act of 1978 (12 U.S.C. 
1817(j)(13)) (Bank Control Act ); sections 8(b), 19 and 32 of the 
Federal Deposit Insurance Act (12 U.S.C. 1818(b), 1829, and 1831i); and 
section 914 of the Financial Institutions Reform, Recovery and 
Enforcement Act of 1989 (12 U.S.C. 1831i) and the Depository Institution 
Management Interlocks Act (12 U.S.C. 3201 et seq.).
    (b) Purpose. The principal purposes of this part are to:
    (1) Regulate the acquisition of control of savings associations by 
companies and individuals;
    (2) Define and regulate the activities in which savings and loan 
holding companies may engage;
    (3) Set forth the procedures for securing approval for these 
transactions and activities; and
    (4) Set forth the procedures under which directors and executive 
officers may be appointed or employed by savings and loan holding 
companies in certain circumstances.



Sec. 238.2  Definitions.

    As used in this part and in the forms under this part, the following 
definitions apply, unless the context otherwise requires:
    (a) Affiliate means any person or company which controls, is 
controlled by or is under common control with a person, savings 
association or company.
    (b) Bank means any national bank, state bank, state-chartered 
savings bank, cooperative bank, or industrial bank, the deposits of 
which are insured by the Deposit Insurance Fund.
    (c) Bank holding company has the meaning found in the Board's 
Regulation Y (12 CFR 225.2(c)).
    (d) Company means any corporation, partnership, trust, association, 
joint venture, pool, syndicate, unincorporated organization, joint-stock 
company or similar organization, as defined in paragraph (o) of this 
section; but a company does not include:
    (1) The Federal Deposit Insurance Corporation, the Resolution Trust 
Corporation, or any Federal Home Loan Bank, or
    (2) Any company the majority of shares of which is owned by:
    (i) The United States or any State,
    (ii) An officer of the United States or any State in his or her 
official capacity, or
    (iii) An instrumentality of the United States or any State.
    (e) A person shall be deemed to have control of:
    (1) A savings association if the person directly or indirectly or 
acting in concert with one or more other persons, or through one or more 
subsidiaries, owns, controls, or holds with power to vote, or holds 
proxies representing, more than 25 percent of the voting shares of such 
savings association, or controls in any manner the election of a 
majority of the directors of such association;
    (2) Any other company if the person directly or indirectly or acting 
in concert with one or more other persons, or through one or more 
subsidiaries, owns, controls, or holds with power to vote, or holds 
proxies representing, more than 25 percent of the voting shares or 
rights of such other company, or controls in any manner the election or 
appointment of a majority of the directors or trustees of such other 
company, or is a general partner in or has contributed more than 25 
percent of the capital of such other company;
    (3) A trust if the person is a trustee thereof; or
    (4) A savings association or any other company if the Board 
determines, after reasonable notice and opportunity for hearing, that 
such person directly or indirectly exercises a controlling influence 
over the management or policies of such association or other company.
    (f) Director means any director of a corporation or any individual 
who performs similar functions in respect of any company, including a 
trustee under a trust.
    (g) Management official means any president, chief executive 
officer, chief operating officer, vice president, director, partner, or 
trustee, or any other person who performs or has a representative or 
nominee performing similar policymaking functions, including executive 
officers of principal business units or divisions or subsidiaries who 
perform policymaking functions, for a savings association or a company, 
whether or not incorporated.

[[Page 80]]

    (h) Multiple savings and loan holding company means any savings and 
loan holding company which directly or indirectly controls two or more 
savings associations.
    (i) Officer means the chairman of the board, president, vice 
president, treasurer, secretary, or comptroller of any company, or any 
other person who participates in its major policy decisions.
    (j) Person includes an individual, bank, corporation, partnership, 
trust, association, joint venture, pool, syndicate, sole proprietorship, 
unincorporated organization, or any other form of entity.
    (k) Qualified thrift lender means a financial institution that meets 
the appropriate qualified thrift lender test set forth in 12 U.S.C. 
1467a(m).
    (l) Savings Association means a Federal savings and loan association 
or a Federal savings bank chartered under section 5 of the Home Owners' 
Loan Act, a building and loan, savings and loan or homestead association 
or a cooperative bank (other than a cooperative bank described in 12 
U.S.C. 1813(a)(2)) the deposits of which are insured by the Federal 
Deposit Insurance Corporation, and any corporation (other than a bank) 
the deposits of which are insured by the Federal Deposit Insurance 
Corporation that the Office of the Comptroller of the Currency and the 
Federal Deposit Insurance Corporation jointly determine to be operating 
in substantially the same manner as a savings association, and shall 
include any savings bank or any cooperative bank which is deemed by the 
Office of the Comptroller of the Currency to be a savings association 
under 12 U.S.C. 1467a(1).
    (m) Savings and loan holding company means any company (including a 
savings association) that directly or indirectly controls a savings 
association, but does not include:
    (1) Any company by virtue of its ownership or control of voting 
stock of a savings association acquired in connection with the 
underwriting of securities if such stock is held only for such period of 
time (not exceeding 120 days unless extended by the Board) as will 
permit the sale thereof on a reasonable basis;
    (2) Any trust (other than a pension, profit-sharing, stockholders', 
voting, or business trust) which controls a savings association if such 
trust by its terms must terminate within 25 years or not later than 21 
years and 10 months after the death of individuals living on the 
effective date of the trust, and:
    (i) Was in existence and in control of a savings association on June 
26, 1967, or
    (ii) Is a testamentary trust;
    (3) A bank holding company that is registered under, and subject to, 
the Bank Holding Company Act of 1956, or any company directly or 
indirectly controlled by such company (other than a savings 
association);
    (4) A company that controls a savings association that functions 
solely in a trust or fiduciary capacity as provided in section 
2(c)(2)(D) of the Bank Holding Company Act; or
    (5) A company described in section 10(c)(9)(C) of HOLA solely by 
virtue of such company's control of an intermediate holding company 
established under section 10A of the Home Owners' Loan Act.
    (n) Shareholder--(1) Controlling shareholder means a person that 
owns or control, directly or indirectly, more than 25 percent of any 
class of voting securities of a savings association or other company.
    (2) Principal shareholder means a person that owns or controls, 
directly or indirectly, 10 percent or more of any class of voting 
securities of a savings association or other company, or any person that 
the Board determines has the power, directly or indirectly, to exercise 
a controlling influence over the management or policies of a savings 
association or other company.
    (o) Stock means common or preferred stock, general or limited 
partnership shares or interests, or similar interests.
    (p) Subsidiary means any company which is owned or controlled 
directly or indirectly by a person, and includes any service corporation 
owned in whole or in part by a savings association, or a subsidiary of 
such service corporation.
    (q) Uninsured institution means any financial institution the 
deposits of

[[Page 81]]

which are not insured by the Federal Deposit Insurance Corporation.
    (r)(1) Voting securities means shares of common or preferred stock, 
general or limited partnership shares or interests, or similar interests 
if the shares or interest, by statute, charter, or in any manner, 
entitle the holder:
    (i) To vote for or to select directors, trustees, or partners (or 
persons exercising similar functions of the issuing company); or
    (ii) To vote on or to direct the conduct of the operations or other 
significant policies of the issuing company.
    (2) Nonvoting shares. Preferred shares, limited partnership shares 
or interests, or similar interests are not voting securities if:
    (i) Any voting rights associated with the shares or interest are 
limited solely to the type customarily provided by statute with regard 
to matters that would significantly and adversely affect the rights or 
preference of the security or other interest, such as the issuance of 
additional amounts or classes of senior securities, the modification of 
the terms of the security or interest, the dissolution of the issuing 
company, or the payment of dividends by the issuing company when 
preferred dividends are in arrears;
    (ii) The shares or interest represent an essentially passive 
investment or financing device and do not otherwise provide the holder 
with control over the issuing company; and
    (iii) The shares or interest do not entitle the holder, by statute, 
charter, or in any manner, to select or to vote for the selection of 
directors, trustees, or partners (or persons exercising similar 
functions) of the issuing company.
    (3) Class of voting shares. Shares of stock issued by a single 
issuer are deemed to be the same class of voting shares, regardless of 
differences in dividend rights or liquidation preference, if the shares 
are voted together as a single class on all matters for which the shares 
have voting rights other than matters described in paragraph (r)(2)(i) 
of this section that affect solely the rights or preferences of the 
shares.
    (s) Well capitalized. (1) A savings and loan holding company is well 
capitalized if:
    (i) Each of the savings and loan holding company's depository 
institutions is well capitalized; and
    (ii) The savings and loan holding company is not subject to any 
written agreement, order, capital directive, or prompt corrective action 
directive issued by the Board to meet and maintain a specific capital 
level for any capital measure.
    (2) In the case of a savings association, ``well capitalized'' takes 
the meaning provided in Sec. 225.2(r)(2) of this chapter.
    (t) Well managed. The term ``well managed'' takes the meaning 
provided in Sec. 225.2(s) of this chapter except that a ``satisfactory 
rating for management'' refers to a management rating, if such rating is 
given, or otherwise a risk-management rating, if such rating is given.
    (u) Depository institution. For purposes of this part, the term 
``depository institution'' has the same meaning as in section 3(c) of 
Federal Deposit Insurance Act (12 U.S.C. 1813(c)).



Sec. 238.3  Administration.

    (a) Delegation of authority. Designated Board members and officers 
and the Federal Reserve Banks are authorized by the Board to exercise 
various functions prescribed in this regulation, in the Board's Rules 
Regarding Delegation of Authority (12 CFR part 265), the Board's Rules 
of Procedure (12 CFR part 262), and in Board orders.
    (b) Appropriate Federal Reserve Bank. In administering this 
regulation, unless a different Federal Reserve Bank is designated by the 
Board, the appropriate Federal Reserve Bank is as follows:
    (1) For a savings and loan holding company (or a company applying to 
become a savings and loan holding company): the Reserve Bank of the 
Federal Reserve district in which the company's banking operations are 
principally conducted, as measured by total domestic deposits in its 
subsidiary savings association on the date it became (or will become) a 
savings and loan holding company;
    (2) For an individual or company submitting a notice under subpart D 
of this part: The Reserve Bank of the Federal Reserve district in which 
the

[[Page 82]]

banking operations of the savings and loan holding company to be 
acquired are principally conducted, as measured by total domestic 
deposits on the date the notice is filed.



Sec. 238.4  Records, reports, and inspections.

    (a) Records. Each savings and loan holding company shall maintain 
such books and records as may be prescribed by the Board. Each savings 
and loan holding company and its non-depository affiliates shall 
maintain accurate and complete records of all business transactions. 
Such records shall support and be readily reconcilable to any regulatory 
reports submitted to the Board and financial reports prepared in 
accordance with GAAP. The records shall be maintained in the United 
States and be readily accessible for examination and other supervisory 
purposes within 5 business days upon request by the Board, at a location 
acceptable to the Board.
    (b) Reports. Each savings and loan holding company and each 
subsidiary thereof, other than a savings association, shall file with 
the Board such reports as may be required by the Board. Such reports 
shall be made under oath or otherwise, and shall be in such form and for 
such periods, as the Board may prescribe. Each report shall contain 
information concerning the operations of such savings and loan holding 
company and its subsidiaries as the Board may require.
    (c) Registration statement--(1) Filing of registration statement. 
Not later than 90 days after becoming a savings and loan holding 
company, each savings and loan holding company shall register with the 
Board by furnishing information in the manner and form prescribed by the 
Board.
    (2) Date of registration. The date of registration of a savings and 
loan holding company shall be the date on which its registration 
statement is received by the Board.
    (3) Extension of time for registration. For timely and good cause 
shown, the Board may extend the time within which a savings and loan 
holding company shall register.
    (d) Release from registration. The Board may at any time, upon its 
own motion or upon application, release a registered savings and loan 
holding company from any registration theretofore made by such company, 
if the Board shall determine that such company no longer has control of 
any savings association or no longer qualifies as a savings and loan 
holding company.
    (e) Examinations. Each savings and loan holding company and each 
subsidiary thereof shall be subject to such examinations as the Board 
may prescribe. The Board shall, to the extent deemed feasible, use for 
the purposes of this section reports filed with or examinations made by 
other Federal agencies or the appropriate State supervisory authority.
    (f) Appointment of agent. The Board may require any savings and loan 
holding company, or persons connected therewith if it is not a 
corporation, to execute and file a prescribed form of irrevocable 
appointment of agent for service of process.



Sec. 238.5  Audit of savings association holding companies.

    (a) General. The Board may require, at any time, an independent 
audit of the financial statements of, or the application of procedures 
agreed upon by the Board to a savings and loan holding company, or 
nondepository affiliate by qualified independent public accountants when 
needed for any safety and soundness reason identified by the Board.
    (b) Audits required for safety and soundness purposes. The Board 
requires an independent audit for safety and soundness purposes if, as 
of the beginning of its fiscal year, a savings and loan holding company 
controls savings association subsidiary(ies) with aggregate consolidated 
assets of $500 million or more.
    (c) Procedures. (1) When the Board requires an independent audit 
because such an audit is needed for safety and soundness purposes, the 
Board shall determine whether the audit was conducted and filed in a 
manner satisfactory to the Board.
    (2) When the Board requires the application of procedures agreed 
upon by the Board for safety and soundness purposes, the Board shall 
identify the procedures to be performed. The Board

[[Page 83]]

shall also determine whether the agreed upon procedures were conducted 
and filed in a manner satisfactory to the Board.
    (d) Qualifications for independent public accountants. The audit 
shall be conducted by an independent public accountant who:
    (1) Is registered or licensed to practice as a public accountant, 
and is in good standing, under the laws of the state or other political 
subdivision of the United States in which the savings association's or 
holding company's principal office is located;
    (2) Agrees in the engagement letter to provide the Board with access 
to and copies of any work papers, policies, and procedures relating to 
the services performed;
    (3)(i) Is in compliance with the American Institute of Certified 
Public Accountants' (AICPA) Code of Professional Conduct; and
    (ii) Meets the independence requirements and interpretations of the 
Securities and Exchange Commission and its staff; and
    (4) Has received, or is enrolled in, a peer review program that 
meets guidelines acceptable to the Board.
    (e) Voluntary audits. When a savings and loan holding company or 
nondepository affiliate obtains an independent audit voluntarily, it 
must be performed by an independent public accountant who satisfies the 
requirements of paragraphs (d)(1), (d)(2), and (d)(3)(i) of this 
section.



Sec. 238.6  Penalties for violations.

    (a) Criminal and civil penalties. (1) Section 10 of the HOLA 
provides criminal penalties for willful violation, and civil penalties 
for violation, by any company or individual, of HOLA or any regulation 
or order issued under it, or for making a false entry in any book, 
report, or statement of a savings and loan holding company.
    (2) Civil money penalty assessments for violations of HOLA shall be 
made in accordance with subpart C of the Board's Rules of Practice for 
Hearings (12 CFR part 263, subpart C). For any willful violation of the 
Bank Control Act or any regulation or order issued under it, the Board 
may assess a civil penalty as provided in 12 U.S.C. 1817(j)(15).
    (b) Cease-and-desist proceedings. For any violation of HOLA, the 
Bank Control Act, this regulation, or any order or notice issued 
thereunder, the Board may institute a cease-and-desist proceeding in 
accordance with the Financial Institutions Supervisory Act of 1966, as 
amended (12 U.S.C. 1818(b) et seq.).



Sec. 238.7  Tying restriction exception.

    (a) Safe harbor for combined-balance discounts. A savings and loan 
holding company or any savings association or any affiliate of either 
may vary the consideration for any product or package of products based 
on a customer's maintaining a combined minimum balance in certain 
products specified by the company varying the consideration (eligible 
products), if:
    (1) That company (if it is a savings association) or a savings 
association affiliate of that company (if it is not a savings 
association) offers deposits, and all such deposits are eligible 
products; and
    (2) Balances in deposits count at least as much as non-deposit 
products toward the minimum balance.
    (b) Limitations on exception. This exception shall terminate upon a 
finding by the Board that the arrangement is resulting in anti-
competitive practices. The eligibility of a savings and loan holding 
company or savings association or affiliate of either to operate under 
this exception shall terminate upon a finding by the Board that its 
exercise of this authority is resulting in anti-competitive practices.



Sec. 238.8  Safe and sound operations.

    (a) Savings and loan holding company policy and operations. (1) A 
savings and loan holding company shall serve as a source of financial 
and managerial strength to its subsidiary savings associations and shall 
not conduct its operations in an unsafe or unsound manner.
    (2) Whenever the Board believes an activity of a savings and loan 
holding company or control of a nonbank subsidiary (other than a nonbank 
subsidiary of a savings association) constitutes a serious risk to the 
financial

[[Page 84]]

safety, soundness, or stability of a subsidiary savings association of 
the savings and loan holding company and is inconsistent with sound 
banking principles or the purposes of HOLA or the Financial Institutions 
Supervisory Act of 1966, as amended (12 U.S.C. 1818(b) et seq.), the 
Board may require the savings and loan holding company to terminate the 
activity or to terminate control of the subsidiary, as provided in 
section 10(g)(5) of the HOLA.
    (b) [Reserved]



    Subpart B_Acquisitions of Saving Association Securities or Assets



Sec. 238.11  Transactions requiring Board approval.

    The following transactions require the Board's prior approval under 
section 10 of HOLA except as exempted under Sec. 238.12:
    (a) Formation of savings and loan holding company. Any action that 
causes a savings association or other company to become a savings and 
loan holding company.
    (b) Acquisition of subsidiary savings association. Any action that 
causes a savings association to become a subsidiary of a savings and 
loan holding company.
    (c) Acquisition of control of savings association or savings and 
loan holding company securities. (1) The acquisition by a savings and 
loan holding company of direct or indirect ownership or control of any 
voting securities of a savings association or savings and loan holding 
company, that is not a subsidiary, if the acquisition results in the 
company's control of more than 5 percent of the outstanding shares of 
any class of voting securities of the savings association or savings and 
loan holding company.
    (2) An acquisition includes the purchase of additional securities 
through the exercise of preemptive rights, but does not include 
securities received in a stock dividend or stock split that does not 
alter the savings and loan holding company's proportional share of any 
class of voting securities.
    (3) In the case of a multiple savings and loan holding company, 
acquisition of direct or indirect ownership or control of any voting 
securities of a savings association or savings and loan holding company, 
that is not a subsidiary, if the acquisition results in the company's 
control of more than 5 percent of the outstanding shares of any class of 
voting securities of the savings association or savings and loan holding 
company that is engaged in any business activity other than those 
specified in Sec. 238.51 of this part.
    (d) Acquisition of savings association or savings and loan holding 
company assets. The acquisition by a savings and loan holding company or 
by a subsidiary thereof (other than a savings association) of all or 
substantially all of the assets of a savings association, or savings and 
loan holding company.
    (e) Merger of savings and loan holding companies. The merger or 
consolidation of savings and loan holding companies, and the acquisition 
of a savings association through a merger or consolidation.
    (f) Acquisition of control by certain individuals. The acquisition, 
by a director or officer of a savings and loan holding company, or by 
any individual who owns, controls, or holds the power to vote (or holds 
proxies representing) more than 25 percent of the voting shares of such 
savings and loan holding company, of control of any savings association 
that is not a subsidiary of such savings and loan holding company.



Sec. 238.12  Transactions not requiring Board approval.

    (a) The requirements of Sec. 238.11(a), (b), (d), (e) and (f) do 
not apply to:
    (1) Control of a savings association acquired by devise under the 
terms of a will creating a trust which is excluded from the definition 
of savings and loan holding company;
    (2) Control of a savings association acquired in connection with a 
reorganization that involves solely the acquisition of control of that 
association by a newly formed company that is controlled by the same 
acquirors that controlled the savings association for the immediately 
preceding three years, and entails no other transactions, such as an 
assumption of the acquirors' debt by the newly formed company: Provided, 
that the acquirors have filed the designated form with the appropriate

[[Page 85]]

Reserve Bank and have provided all additional information requested by 
the Board or Reserve Bank, and the Board nor the appropriate Reserve 
Bank object to the acquisition within 30 days of the filing date;
    (3) Control of a savings association acquired by a bank holding 
company that is registered under and subject to, the Bank Holding 
Company Act of 1956, or any company controlled by such bank holding 
company;
    (4) Control of a savings association acquired solely as a result of 
a pledge or hypothecation of stock to secure a loan contracted for in 
good faith or the liquidation of a loan contracted for in good faith, in 
either case where such loan was made in the ordinary course of the 
business of the lender: Provided, further, That acquisition of control 
pursuant to such pledge, hypothecation or liquidation is reported to the 
Board within 30 days, and Provided, further, That the acquiror shall not 
retain such control for more than one year from the date on which such 
control was acquired; however, the Board may, upon application by an 
acquiror, extend such one-year period from year to year, for an 
additional period of time not exceeding three years, if the Board finds 
such extension is warranted and would not be detrimental to the public 
interest;
    (5) Control of a savings association acquired through a percentage 
increase in stock ownership following a pro rata stock dividend or stock 
split, if the proportional interests of the recipients remain 
substantially the same;
    (6) Acquisitions of up to twenty-five percent (25%) of a class of 
stock by a tax-qualified employee stock benefit plan; and
    (7) Acquisitions of up to 15 percent of the voting stock of any 
savings association by a savings and loan holding company (other than a 
bank holding company) in connection with a qualified stock issuance if 
such acquisition is approved by the Board pursuant to subpart E.
    (b) The requirements of Sec. 238.11(c) do not apply to voting 
shares of a savings association or of a savings and loan holding 
company--
    (1) Held as a bona fide fiduciary (whether with or without the sole 
discretion to vote such shares);
    (2) Held temporarily pursuant to an underwriting commitment in the 
normal course of an underwriting business;
    (3) Held in an account solely for trading purposes or over which no 
control is held other than control of voting rights acquired in the 
normal course of a proxy solicitation;
    (4) Acquired in securing or collecting a debt previously contracted 
in good faith, for two years after the date of acquisition or for such 
additional time (not exceeding three years) as the Board may permit if, 
in the Board's judgment, such an extension would not be detrimental to 
the public interest;
    (5) Acquired under section 13(k)(1)(A)(i) of the Federal Deposit 
Insurance Act (or section 408(m) of the National Housing Act as in 
effect immediately prior to the enactment of the Financial Institutions 
Reform, Recovery and Enforcement Act of 1989);
    (6) Held by any insurance companies as defined in section 2(a)(17) 
of the Investment Company Act of 1940: Provided, That all shares held by 
all insurance company affiliates of such savings association or savings 
and loan holding company may not, in the aggregate, exceed five percent 
of all outstanding shares or of the voting power of the savings 
association or savings and loan holding company, and such shares are not 
acquired or retained with a view to acquiring, exercising, or 
transferring control of the savings association or savings and loan 
holding company; and
    (7) Acquired pursuant to a qualified stock issuance if such a 
purchase is approved pursuant to subpart E of this part.
    (c) The aggregate amount of shares held under paragraph (b) of this 
section (other than pursuant to paragraphs (b)(1) through (4) and 
(b)(6)) may not exceed 15 percent of all outstanding shares or the 
voting power of a savings association or savings and loan holding 
company.
    (d) Acquisitions involving savings association mergers and internal 
corporate reorganizations--The requirements of Sec. 238.11 do not apply 
to:

[[Page 86]]

    (1) Certain transactions subject to the Bank Merger Act. The 
acquisition by a savings and loan holding company of shares of a savings 
association or company controlling a savings association or the merger 
of a company controlling a savings association with the savings and loan 
holding company, if the transaction is part of the merger or 
consolidation of the savings association with a subsidiary savings 
association (other than a nonoperating subsidiary savings association) 
of the acquiring savings and loan holding company, or is part of the 
purchase of substantially all of the assets of the savings association 
by a subsidiary savings association (other than a nonoperating 
subsidiary savings association) of the acquiring savings and loan 
holding company, and if:
    (i) The savings association merger, consolidation, or asset purchase 
occurs simultaneously with the acquisition of the shares of the savings 
association or savings and loan holding company or the merger of holding 
companies, and the savings association is not operated by the acquiring 
savings and loan holding company as a separate entity other than as the 
survivor of the merger, consolidation, or asset purchase;
    (ii) The transaction requires the prior approval of a federal 
supervisory agency under the Bank Merger Act (12 U.S.C. 1828(c));
    (iii) The transaction does not involve the acquisition of any 
company that would require prior notice or approval under section 10(c) 
of the HOLA;
    (iv) The transaction does not involve a depository institution 
organized in mutual form, a savings and loan holding company organized 
in mutual form, a subsidiary holding company of a savings and loan 
holding company organized in mutual form, or a bank holding company 
organized in mutual form;
    (v) The transaction will not have a material adverse impact on the 
financial condition of the acquiring savings and loan holding company;
    (vi) At least 10 days prior to the transaction, the acquiring 
savings and loan holding company has provided to the Reserve Bank 
written notice of the transaction that contains:
    (A) A copy of the filing made to the appropriate federal banking 
agency under the Bank Merger Act; and
    (B) A description of the holding company's involvement in the 
transaction, the purchase price, and the source of funding for the 
purchase price; and
    (vii) Prior to expiration of the period provided in paragraph 
(d)(1)(vi) of this section, neither the Board nor the Reserve Bank has 
informed the savings and loan holding company that an application under 
Sec. 238.11 is required.
    (2) Internal corporate reorganizations. (i) Subject to paragraph 
(d)(2)(ii) of this section, any of the following transactions performed 
in the United States by a savings and loan holding company:
    (A) The merger of holding companies that are subsidiaries of the 
savings and loan holding company;
    (B) The formation of a subsidiary holding company; \1\
---------------------------------------------------------------------------

    \1\ In the case of a transaction that results in the formation or 
designation of a new savings and loan holding company, the new savings 
and loan holding company must complete the registration requirements 
described in section 238.11.
---------------------------------------------------------------------------

    (C) The transfer of control or ownership of a subsidiary savings 
association or a subsidiary holding company between one subsidiary 
holding company and another subsidiary holding company or the savings 
and loan holding company.
    (ii) A transaction described in paragraph (d)(2)(i) of this section 
qualifies for this exception if--
    (A) The transaction represents solely a corporate reorganization 
involving companies and insured depository institutions that, both 
preceding and following the transaction, are lawfully controlled and 
operated by the savings and loan holding company;
    (B) The transaction does not involve the acquisition of additional 
voting shares of an insured depository institution that, prior to the 
transaction, was less than majority owned by the savings and loan 
holding company;
    (C) The transaction does not involve a savings and loan holding 
company organized in mutual form, a subsidiary holding company of a 
savings and loan holding company organized in mutual form, or a bank 
holding company organized in mutual form; and

[[Page 87]]

    (D) The transaction will not have a material adverse impact on the 
financial condition of the holding company.



Sec. 238.13  Prohibited acquisitions.

    (a) No savings and loan holding company may, directly or indirectly, 
or through one or more subsidiaries or through one or more transactions, 
acquire control of an uninsured institution or retain, for more than one 
year after the date any savings association subsidiary becomes 
uninsured, control of such association.
    (b) Control of mutual savings association. No savings and loan 
holding company or any subsidiary thereof, or any director, officer, or 
employee of a savings and loan holding company or subsidiary thereof, or 
person owning, controlling, or holding with power to vote, or holding 
proxies representing, more than 25 percent of the voting shares of such 
holding company or subsidiary, may hold, solicit, or exercise any 
proxies in respect of any voting rights in a mutual savings association.



Sec. 238.14  Procedural requirements.

    (a) Filing application. An application for the Board's prior 
approval under Sec. 238.11 shall be governed by the provisions of this 
section and shall be filed with the appropriate Reserve Bank on the 
designated form.
    (b) Request for confidential treatment. An applicant may request 
confidential treatment for portions of its application pursuant to 12 
CFR 261.15.
    (c) Public notice--(1) Newspaper publication--(i) Location of 
publication. In the case of each application, the applicant shall 
publish a notice in a newspaper of general circulation, in the form and 
at the locations specified in Sec. 262.3 of the Rules of Procedure (12 
CFR 262.3) in this chapter;
    (ii) Contents of notice. A newspaper notice under this paragraph 
shall provide an opportunity for interested persons to comment on the 
proposal for a period of at least 30 calendar days;
    (iii) Timing of publication. Each newspaper notice published in 
connection with a proposal under this paragraph shall be published no 
more than 15 calendar days before and no later than 7 calendar days 
following the date that an application is filed with the appropriate 
Reserve Bank.
    (2) Federal Register notice--(i) Publication by Board. Upon receipt 
of an application, the Board shall promptly publish notice of the 
proposal in the Federal Register and shall provide an opportunity for 
interested persons to comment on the proposal for a period of no more 
than 30 days;
    (ii) Request for advance publication. An applicant may request that, 
during the 15-day period prior to filing an application, the Board 
publish notice of a proposal in the Federal Register. A request for 
advance Federal Register Notice publication shall be made in writing to 
the appropriate Reserve Bank and shall contain the identifying 
information prescribed by the Board for Federal Register Notice 
publication.
    (3) Waiver or shortening of notice. The Board may waive or shorten 
the required notice periods under this section if the Board determines 
that an emergency exists requiring expeditious action on the proposal, 
or if the Board finds that immediate action is necessary to prevent the 
probable failure of an insured depository institution.
    (d) Public comment--(1) Timely comments. Interested persons may 
submit information and comments regarding a proposal filed under this 
subpart. A comment shall be considered timely for purposes of this 
subpart if the comment, together with all supplemental information, is 
submitted in writing in accordance with the Board's Rules of Procedure 
and received by the Board or the appropriate Reserve Bank prior to the 
expiration of the latest public comment period provided in paragraph (c) 
of this section.
    (2) Extension of comment period--(i) In general. The Board may, in 
its discretion, extend the public comment period regarding any proposal 
submitted under this subpart.
    (ii) Requests in connection with obtaining application or notice. In 
the event that an interested person has requested a copy of a notice or 
application submitted under this subpart, the Board may, in its 
discretion and based on the facts and circumstances, grant such person 
an extension of the comment period for up to 15 calendar days.

[[Page 88]]

    (iii) Joint requests by interested person and applicant. The Board 
will grant a joint request by an interested person and the applicant for 
an extension of the comment period for a reasonable period for a purpose 
related to the statutory factors the Board must consider under this 
subpart.
    (3) Substantive comment. A comment will be considered substantive 
for purposes of this subpart unless it involves individual complaints, 
or raises frivolous, previously-considered or wholly unsubstantiated 
claims or irrelevant issues.
    (e) Hearings. The Board may order a formal or informal hearing or 
other proceeding on the application, as provided in Sec. 262.3(i)(2) of 
this chapter. Any request for a hearing (other than from the primary 
supervisor) shall comply with Sec. 262.3(e) in this chapter.
    (f) Accepting application for processing. Within 7 calendar days 
after the Reserve Bank receives an application under this section, the 
Reserve Bank shall accept it for processing as of the date the 
application was filed or return the application if it is substantially 
incomplete. Upon accepting an application, the Reserve Bank shall 
immediately send copies to the Board and to the primary banking 
supervisor of the savings association to be acquired and to the Attorney 
General, and shall request from the Attorney General a report on the 
competitive factors involved. The Reserve Bank or the Board may request 
additional information necessary to complete the record of an 
application at any time after accepting the application for processing.
    (g) Action on applications--(1) Action under delegated authority. 
Except as provided in paragraph (g)(4) of this section, unless the 
Reserve Bank, upon notice to the applicant, refers the application to 
the Board for decision because action under delegated authority is not 
appropriate, the Reserve Bank shall approve an application under this 
section:
    (i) Not earlier than the third business day following the close of 
the public comment period; and
    (ii) Not later than the later of the fifth business day following 
the close of the public comment period or the 30th calendar day after 
the acceptance date for the application.
    (2) Board action. The Board shall act on an application under this 
section that is referred to it for decision within 60 calendar days 
after the acceptance date for the application, unless the Board notifies 
the applicant that the 60-day period is being extended for a specified 
period and states the reasons for the extension. The Board may, at any 
time, request additional information that it believes is necessary for 
its decision.
    (3) Approval through failure to act--(i) Ninety-one day rule. An 
application shall be deemed approved if the Board fails to act on the 
application within 91 calendar days after the date of submission to the 
Board of the complete record on the application. For this purpose, the 
Board acts when it issues an order stating that the Board has approved 
or denied the application or notice, reflecting the votes of the members 
of the Board, and indicating that a statement of the reasons for the 
decision will follow promptly.
    (ii) Complete record. For the purpose of computing the commencement 
of the 91-day period, the record is complete on the latest of:
    (A) The date of receipt by the Board of an application that has been 
accepted by the Reserve Bank;
    (B) The last day provided in any notice for receipt of comments and 
hearing requests on the application or notice;
    (C) The date of receipt by the Board of the last relevant material 
regarding the application that is needed for the Board's decision, if 
the material is received from a source outside of the Federal Reserve 
System; or
    (D) The date of completion of any hearing or other proceeding.
    (4) Expedited reorganization--(i) In general. The Board or the 
appropriate Reserve Bank shall act on an application of a reorganization 
that meets the requirements of Sec. 238.15(f):
    (A) Not earlier than the third business day following the close of 
the public comment period; and
    (B) Not later than the fifth business day following the close of the 
public comment period, except that the Board may extend the period for 
action under

[[Page 89]]

this paragraph (g)(4) for up to 5 business days.
    (ii) Acceptance of notice in event expedited procedure not 
available. In the event that the Board or the Reserve Bank determines 
that an application filed pursuant to 238.15(f) does not meet one or 
more of the requirements of Sec. 238.15(f), paragraph (g)(4) of this 
section shall not apply and the Board or Reserve Bank will act on the 
application according to the other provisions of paragraph (g) of this 
section.



Sec. 238.15  Factors considered in acting on applications.

    (a) Generally. The Board may not approve any application under this 
subpart if:
    (1) The transaction would result in a monopoly or would further any 
combination or conspiracy to monopolize, or to attempt to monopolize, 
the savings and loan business in any part of the United States;
    (2) The effect of the transaction may be substantially to lessen 
competition in any section of the country, tend to create a monopoly, or 
in any other manner be in restraint of trade, unless the Board finds 
that the transaction's anti-competitive effects are clearly outweighed 
by its probable effect in meeting the convenience and needs of the 
community;
    (3) The applicant has failed to provide the Board with adequate 
assurances that it will make available such information on its 
operations or activities, and the operations or activities of any 
affiliate of the applicant, that the Board deems appropriate to 
determine and enforce compliance with HOLA and other applicable federal 
banking statutes, and any regulations thereunder; or
    (4) In the case of an application involving a foreign banking 
organization, the foreign banking organization is not subject to 
comprehensive supervision or regulation on a consolidated basis by the 
appropriate authorities in its home country, as provided in Sec. 
211.24(c)(1)(ii) of the Board's Regulation K (12 CFR 211.24(c)(1)(ii)).
    (5) In the case of an application by a savings and loan holding 
company to acquire an insured depository institution, section 
10(e)(2)(E) of HOLA prohibits the Board from approving the transaction.
    (b) Other factors. In deciding applications under this subpart, the 
Board also considers the following factors with respect to the acquiror, 
its subsidiaries, any savings associations or banks related to the 
acquiror through common ownership or management, and the savings 
association or associations to be acquired:
    (1) Financial condition. Their financial condition and future 
prospects, including whether current and projected capital positions and 
levels of indebtedness conform to standards and policies established by 
the Board.
    (2) Managerial resources. The competence, experience, and integrity 
of the officers, directors, and principal shareholders of the acquiror, 
its subsidiaries, and the savings association and savings and loan 
holding companies concerned; their record of compliance with laws and 
regulations; and the record of the applicant and its affiliates of 
fulfilling any commitments to, and any conditions imposed by, the Board 
in connection with prior applications.
    (3) Convenience and needs of community. In the case of an 
application required under Sec. 238.11(c), (d), or (e), (or an 
application by a savings and loan holding company under Sec. 
238.11(b)), the convenience and needs of the communities to be served, 
including the record of performance under the Community Reinvestment Act 
of 1977 (12 U.S.C. 2901 et seq.) and regulations issued thereunder, 
including the Board's Regulation BB (12 CFR part 228).
    (c) Presumptive disqualifiers--(1) Integrity factors. The following 
factors shall give rise to a rebuttable presumption that an acquiror may 
fail to satisfy the managerial resources and future prospects tests of 
paragraph (b) of this section:
    (i) During the 10-year period immediately preceding filing of the 
application or notice, criminal, civil or administrative judgments, 
consents or orders, and any indictments, formal investigations, 
examinations, or civil or administrative proceedings (excluding

[[Page 90]]

routine or customary audits, inspections and investigations) that 
terminated in any agreements, undertakings, consents or orders, issued 
against, entered into by, or involving the acquiror or affiliates of the 
acquiror by any federal or state court, any department, agency, or 
commission of the U.S. Government, any state or municipality, any 
Federal Home Loan Bank, any self-regulatory trade or professional 
organization, or any foreign government or governmental entity, which 
involve:
    (A) Fraud, moral turpitude, dishonesty, breach of trust or fiduciary 
duties, organized crime or racketeering;
    (B) Violation of securities or commodities laws or regulations;
    (C) Violation of depository institution laws or regulations;
    (D) Violation of housing authority laws or regulations; or
    (E) Violation of the rules, regulations, codes of conduct or ethics 
of a self-regulatory trade or professional organization;
    (ii) Denial, or withdrawal after receipt of formal or informal 
notice of an intent to deny, by the acquiror or affiliates of the 
acquiror, of
    (A) Any application relating to the organization of a financial 
institution,
    (B) An application to acquire any financial institution or holding 
company thereof under HOLA or the Bank Holding Company Act or otherwise,
    (C) A notice relating to a change in control of any of the foregoing 
under the CIC Act; or
    (D) An application or notice under a state holding company or change 
in control statute;
    (iii) The acquiror or affiliates of the acquiror were placed in 
receivership or conservatorship during the preceding 10 years, or any 
management official of the acquiror was a management official or 
director (other than an official or director serving at the request of 
the Board, the Federal Deposit Insurance Corporation, the Resolution 
Trust Corporation, the former Federal Savings and Loan Insurance 
Corporation, or their predecessors) or principal shareholder of a 
company or savings association that was placed into receivership, 
conservatorship, or a management consignment program, or was liquidated 
during his or her tenure or control or within two years thereafter;
    (iv) Felony conviction of the acquiror, an affiliate of the acquiror 
or a management official of the acquiror or an affiliate of the 
acquiror;
    (v) Knowingly making any written or oral statement to the Board or 
any predecessor agency (or its delegate) in connection with an 
application, notice or other filing under this part that is false or 
misleading with respect to a material fact or omits to state a material 
fact with respect to information furnished or requested in connection 
with such an application, notice or other filing;
    (vi) Acquisition and retention at the time of submission of an 
application or notice, of stock in the savings association by the 
acquiror in violation of this part or its predecessor regulations.
    (2) Financial factors. The following shall give rise to a rebuttable 
presumption that an acquiror may fail to satisfy the financial-resources 
and future-prospects tests of paragraph (c) of this section:
    (i) Liability for amounts of debt which, in the opinion of the 
Board, create excessive risks of default and pressure on the savings 
association to be acquired; or
    (ii) Failure to furnish a business plan or furnishing a business 
plan projecting activities which are inconsistent with economical home 
financing.
    (d) Competitive factor. Before approving any such acquisition, 
except a transaction under section 13(k) of the Federal Deposit 
Insurance Act, the Board shall consider any report rendered by the 
Attorney General within 30 days of such request under Sec. 238.14(f) on 
the competitive factors involved.
    (e) Expedited reorganizations. An application by a savings 
association solely for the purpose of obtaining approval for the 
creation of a savings and loan holding company by such savings 
association shall be eligible for expedited processing under Sec. 
238.14(g)(4) if it satisfies the following criteria:
    (1) The holding company shall not be capitalized initially in an 
amount exceeding the amount the savings association is permitted to pay 
in dividends to its holding company as of the date

[[Page 91]]

of the reorganization pursuant to applicable regulations or, in the 
absence thereof, pursuant to the then current policy guidelines;
    (2) The creation of the savings and loan holding company by the 
association is the sole transaction contained in the application, and 
there are no other transactions requiring approval incident to the 
creation of the holding company (other than the creation of an interim 
association that will disappear upon consummation of the reorganization 
and the merger of the savings association with such interim association 
to effect the reorganization), and the holding company is not also 
seeking any regulatory waivers, regulatory forbearances, or resolution 
of legal or supervisory issues;
    (3) The board of directors and executive officers of the holding 
company are composed of persons who, at the time of acquisition, are 
executive officers and directors of the association;
    (4) The acquisition raises no significant issues of law or policy;
    (5) Prior to consummation of the reorganization transaction, the 
holding company shall enter into any dividend limitation, regulatory 
capital maintenance, or prenuptial agreement required by Board 
regulations, or in the absence thereof, required pursuant to policy 
guidelines issued by the Board; and
    (f) Conditional approvals. The Board may impose conditions on any 
approval, including conditions to address competitive, financial, 
managerial, safety and soundness, convenience and needs, compliance or 
other concerns, to ensure that approval is consistent with the relevant 
statutory factors and other provisions of HOLA.
    (g) No acquisition shall be approved by the Board pursuant to Sec. 
238.11 which would result in the formation by any company, through one 
or more subsidiaries or through one or more transactions, of a multiple 
savings and loan holding company controlling savings associations in 
more than one state where the acquisition causes a savings association 
to become an affiliate of another savings association with which it was 
not previously affiliated unless:
    (1) Such company, or a savings association subsidiary of such 
company, is authorized to acquire control of a savings association 
subsidiary, or to operate a home or branch office, in the additional 
state or states pursuant to section 13(k) of the Federal Deposit 
Insurance Act, 12 U.S.C. 1823(k) (or section 408(m) of the National 
Housing Act as in effect immediately prior to enactment of the Financial 
Institutions Reform, Recovery and Enforcement Act of 1989);
    (2) Such company controls a savings association subsidiary which 
operated a home or branch office in the additional state or states as of 
March 5, 1987; or
    (3) The statute laws of the state in which the savings association, 
control of which is to be acquired, is located are such that a savings 
association chartered by such state could be acquired by a savings 
association chartered by the state where the acquiring savings 
association or savings and loan holding company is located (or by a 
holding company that controls such a state chartered savings 
association), and such statute laws specifically authorize such an 
acquisition by language to that effect and not merely by implication.



                      Subpart C_Control Proceedings



Sec. 238.21  Control proceedings.

    (a) Preliminary determination of control. (1) The Board may issue a 
preliminary determination of control under the procedures set forth in 
this section in any case in which:
    (i) Any of the presumptions of control set forth in paragraph (d) of 
this section is present; or
    (ii) It otherwise appears that a company has the power to exercise a 
controlling influence over the management or policies of a savings 
association or other company.
    (2) If the Board makes a preliminary determination of control under 
this section, the Board shall send notice to the controlling company 
containing a statement of the facts upon which the preliminary 
determination is based.
    (b) Response to preliminary determination of control. Within 30 
calendar days of issuance by the Board of a preliminary determination of 
control or such longer period permitted by the Board,

[[Page 92]]

the company against whom the determination has been made shall:
    (1) Submit for the Board's approval a specific plan for the prompt 
termination of the control relationship;
    (2) File an application under this regulation to retain the control 
relationship; or
    (3) Contest the preliminary determination by filing a response, 
setting forth the facts and circumstances in support of its position 
that no control exists, and, if desired, requesting a hearing or other 
proceeding.
    (c) Hearing and final determination. (1) The Board shall order a 
formal hearing or other appropriate proceeding upon the request of a 
company that contests a preliminary determination that the company has 
the power to exercise a controlling influence over the management or 
policies of a savings association or other company, if the Board finds 
that material facts are in dispute. The Board may also in its discretion 
order a formal hearing or other proceeding with respect to a preliminary 
determination that the company controls voting securities of the savings 
association or other company under the presumptions in paragraph (d)(1) 
of this section.
    (2) At a hearing or other proceeding, any applicable presumptions 
established by paragraph (d) of this section shall be considered in 
accordance with the Federal Rules of Evidence and the Board's Rules of 
Practice for Formal Hearings (12 CFR part 263).
    (3) After considering the submissions of the company and other 
evidence, including the record of any hearing or other proceeding, the 
Board shall issue a final order determining whether the company controls 
voting securities, or has the power to exercise a controlling influence 
over the management or policies, of the savings association or other 
company. If a control relationship is found, the Board may direct the 
company to terminate the control relationship or to file an application 
for the Board's approval to retain the control relationship under 
subpart B of this part.
    (d) Rebuttable presumptions of control. The following rebuttable 
presumptions shall be used in any proceeding under this section:
    (1) Control of voting securities--(i) Securities convertible into 
voting securities. A company that owns, controls, or holds securities 
that are immediately convertible, at the option of the holder or owner, 
into voting securities of a bank or other company, controls the voting 
securities.
    (ii) Option or restriction on voting securities. A company that 
enters into an agreement or understanding under which the rights of a 
holder of voting securities of a savings association or other company 
are restricted in any manner controls the securities. This presumption 
does not apply where the agreement or understanding:
    (A) Is a mutual agreement among shareholders granting to each other 
a right of first refusal with respect to their shares;
    (B) Is incident to a bona fide loan transaction; or
    (C) Relates to restrictions on transferability and continues only 
for the time necessary to obtain approval from the appropriate Federal 
supervisory authority with respect to acquisition by the company of the 
securities.
    (2) Control over company--(i) Management agreement. A company that 
enters into any agreement or understanding with a savings association or 
other company (other than an investment advisory agreement), such as a 
management contract, under which the first company or any of its 
subsidiaries directs or exercises significant influence over the general 
management or overall operations of the savings association or other 
company controls the savings association or other company.
    (ii) Shares controlled by company and associated individuals. A 
company that, together with its management officials or principal 
shareholders (including members of the immediate families of either), 
owns, controls, or holds with power to vote 25 percent or more of the 
outstanding shares of any class of voting securities of a savings 
association or other company controls the savings association or other 
company, if the first company owns, controls, or holds with power to 
vote more than 5 percent of the outstanding shares of any class of 
voting securities of the savings association or other company.

[[Page 93]]

    (iii) Common management officials. A company that has one or more 
management officials in common with a savings association or other 
company controls the savings association or other company, if the first 
company owns, controls or holds with power to vote more than 5 percent 
of the outstanding shares of any class of voting securities of the 
savings association or other company, and no other person controls as 
much as 5 percent of the outstanding shares of any class of voting 
securities of the savings association or other company.
    (e) Presumption of non-control--(1) In any proceeding under this 
section, there is a presumption that any company that directly or 
indirectly owns, controls, or has power to vote less than 5 percent of 
the outstanding shares of any class of voting securities of a savings 
association or other company does not have control over that savings 
association or other company.
    (2) In any proceeding under this section, or judicial proceeding 
under the Home Owners' Loan Act, other than a proceeding in which the 
Board has made a preliminary determination that a company has the power 
to exercise a controlling influence over the management or policies of 
the savings association or other company, a company may not be held to 
have had control over the savings association or other company at any 
given time, unless that company, at the time in question, directly or 
indirectly owned, controlled, or had power to vote 5 percent or more of 
the outstanding shares of any class of voting securities of the savings 
association or other company, or had already been found to have control 
on the basis of the existence of a controlling influence relationship.



                    Subpart D_Change in Bank Control



Sec. 238.31  Transactions requiring prior notice.

    (a) Prior notice requirement. Any person acting directly or 
indirectly, or through or in concert with one or more persons, shall 
give the Board 60 days' written notice, as specified in Sec. 238.33 of 
this subpart, before acquiring control of a savings and loan holding 
company, unless the acquisition is exempt under Sec. 238.32.
    (b) Definitions. For purposes of this subpart:
    (1) Acquisition includes a purchase, assignment, transfer, or pledge 
of voting securities, or an increase in percentage ownership of a 
savings and loan holding company resulting from a redemption of voting 
securities.
    (2) Acting in concert includes knowing participation in a joint 
activity or parallel action towards a common goal of acquiring control 
of a savings and loan holding company whether or not pursuant to an 
express agreement.
    (3) Immediate family includes a person's father, mother, stepfather, 
stepmother, brother, sister, stepbrother, stepsister, son, daughter, 
stepson, stepdaughter, grandparent, grandson, granddaughter, father-in-
law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-
in-law, the spouse of any of the foregoing, and the person's spouse.
    (c) Acquisitions requiring prior notice--(1) Acquisition of control. 
The acquisition of voting securities of a savings and loan holding 
company constitutes the acquisition of control under the Bank Control 
Act, requiring prior notice to the Board, if, immediately after the 
transaction, the acquiring person (or persons acting in concert) will 
own, control, or hold with power to vote 25 percent or more of any class 
of voting securities of the institution.
    (2) Rebuttable presumption of control. The Board presumes that an 
acquisition of voting securities of a savings and loan holding company 
constitutes the acquisition of control under the Bank Control Act, 
requiring prior notice to the Board, if, immediately after the 
transaction, the acquiring person (or persons acting in concert) will 
own, control, or hold with power to vote 10 percent or more of any class 
of voting securities of the institution, and if:
    (i) The institution has registered securities under section 12 of 
the Securities Exchange Act of 1934 (15 U.S.C. 78l); or

[[Page 94]]

    (ii) No other person will own, control, or hold the power to vote a 
greater percentage of that class of voting securities immediately after 
the transaction.\2\
---------------------------------------------------------------------------

    \2\ If two or more persons, not acting in concert, each propose to 
acquire simultaneously equal percentages of 10 percent or more of a 
class of voting securities of the savings and loan holding company, each 
person must file prior notice to the Board.
---------------------------------------------------------------------------

    (d) Rebuttable presumption of concerted action. The following 
persons shall be presumed to be acting in concert for purposes of this 
subpart:
    (1) A company and any principal shareholder, partner, trustee, or 
management official of the company, if both the company and the person 
own voting securities of the savings and loan holding company;
    (2) An individual and the individual's immediate family;
    (3) Companies under common control;
    (4) Persons that are parties to any agreement, contract, 
understanding, relationship, or other arrangement, whether written or 
otherwise, regarding the acquisition, voting, or transfer of control of 
voting securities of a savings and loan holding company, other than 
through a revocable proxy as described in Sec. 238.32(a)(5) of this 
subpart;
    (5) Persons that have made, or propose to make, a joint filing under 
sections 13 or 14 of the Securities Exchange Act of 1934 (15 U.S.C. 78m 
or 78n), and the rules promulgated thereunder by the Securities and 
Exchange Commission; and
    (6) A person and any trust for which the person serves as trustee.
    (e) Acquisitions of loans in default. The Board presumes an 
acquisition of a loan in default that is secured by voting securities of 
a savings and loan holding company to be an acquisition of the 
underlying securities for purposes of this section.
    (f) Other transactions. Transactions other than those set forth in 
paragraph (c) of this section resulting in a person's control of less 
than 25 percent of a class of voting securities of a savings and loan 
holding company are not deemed by the Board to constitute control for 
purposes of the Bank Control Act.
    (g) Rebuttal of presumptions. Prior notice to the Board is not 
required for any acquisition of voting securities under the presumption 
of control set forth in this section, if the Board finds that the 
acquisition will not result in control. The Board shall afford any 
person seeking to rebut a presumption in this section an opportunity to 
present views in writing or, if appropriate, orally before its 
designated representatives at an informal conference.



Sec. 238.32  Transactions not requiring prior notice.

    (a) Exempt transactions. The following transactions do not require 
notice to the Board under this subpart:
    (1) Existing control relationships. The acquisition of additional 
voting securities of a savings and loan holding company by a person who:
    (i) Continuously since March 9, 1979 (or since the institution 
commenced business, if later), held power to vote 25 percent or more of 
any class of voting securities of the institution; or
    (ii) Is presumed, under Sec. 238.31(c)(2), to have controlled the 
institution continuously since March 9, 1979, if the aggregate amount of 
voting securities held does not exceed 25 percent or more of any class 
of voting securities of the institution or, in other cases, where the 
Board determines that the person has controlled the institution 
continuously since March 9, 1979;
    (2) Increase of previously authorized acquisitions. Unless the Board 
or the Reserve Bank otherwise provides in writing, the acquisition of 
additional shares of a class of voting securities of a savings and loan 
holding company by any person (or persons acting in concert) who has 
lawfully acquired and maintained control of the institution (for 
purposes of Sec. 238.31(c)), after complying with the procedures and 
receiving approval to acquire voting securities of the institution under 
this subpart, or in connection with an application approved under 
section 10(e) of HOLA (12 U.S.C. 1467a(e) and Sec. 238.11 or section 
18(c) of the Federal Deposit Insurance Act (Bank Merger Act, 12 U.S.C. 
1828(c));
    (3) Acquisitions subject to approval under HOLA or Bank Merger Act. 
Any acquisition of voting securities subject

[[Page 95]]

to approval under section 10(e) of HOLA (12 U.S.C. 1467a(e) and Sec. 
238.11), or section 18(c) of the Federal Deposit Insurance Act (Bank 
Merger Act, 12 U.S.C. 1828(c));
    (4) Transactions exempt under HOLA. Any transaction described in 
sections 10(a)(3)(A) or 10(e)(1)(B)(ii) of HOLA by a person described in 
those provisions;
    (5) Proxy solicitation. The acquisition of the power to vote 
securities of a savings and loan holding company through receipt of a 
revocable proxy in connection with a proxy solicitation for the purposes 
of conducting business at a regular or special meeting of the 
institution, if the proxy terminates within a reasonable period after 
the meeting;
    (6) Stock dividends. The receipt of voting securities of a savings 
and loan holding company through a stock dividend or stock split if the 
proportional interest of the recipient in the institution remains 
substantially the same; and
    (7) Acquisition of foreign banking organization. The acquisition of 
voting securities of a qualifying foreign banking organization. (This 
exemption does not extend to the reports and information required under 
paragraphs 9, 10, and 12 of the Bank Control Act (12 U.S.C. 1817(j) (9), 
(10), and (12)) and Sec. 238.34.)
    (b) Prior notice exemption. (1) The following acquisitions of voting 
securities of a savings and loan holding company, which would otherwise 
require prior notice under this subpart, are not subject to the prior 
notice requirements if the acquiring person notifies the appropriate 
Reserve Bank within 90 calendar days after the acquisition and provides 
any relevant information requested by the Reserve Bank:
    (i) Acquisition of voting securities through inheritance;
    (ii) Acquisition of voting securities as a bona fide gift; and
    (iii) Acquisition of voting securities in satisfaction of a debt 
previously contracted (DPC) in good faith.
    (2) The following acquisitions of voting securities of a savings and 
loan holding company, which would otherwise require prior notice under 
this subpart, are not subject to the prior notice requirements if the 
acquiring person does not reasonably have advance knowledge of the 
transaction, and provides the written notice required under Sec. 238.33 
to the appropriate Reserve Bank within 90 calendar days after the 
transaction occurs:
    (i) Acquisition of voting securities resulting from a redemption of 
voting securities by the issuing savings and loan holding company; and
    (ii) Acquisition of voting securities as a result of actions 
(including the sale of securities) by any third party that is not within 
the control of the acquiror.
    (3) Nothing in paragraphs (b)(1) or (b)(2) of this section limits 
the authority of the Board to disapprove a notice pursuant to Sec. 
238.33(h).



Sec. 238.33  Procedures for filing, processing, publishing, and acting
on notices.

    (a) Filing notice. (1) A notice required under this subpart shall be 
filed with the appropriate Reserve Bank and shall contain all the 
information required by paragraph 6 of the Bank Control Act (12 U.S.C. 
1817(j)(6)), or prescribed in the designated Board form.
    (2) The Board may waive any of the informational requirements of the 
notice if the Board determines that it is in the public interest.
    (3) A notificant shall notify the appropriate Reserve Bank or the 
Board immediately of any material changes in a notice submitted to the 
Reserve Bank, including changes in financial or other conditions.
    (4) When the acquiring person is an individual, or group of 
individuals acting in concert, the requirement to provide personal 
financial data may be satisfied by a current statement of assets and 
liabilities and an income summary, as required in the designated Board 
form, together with a statement of any material changes since the date 
of the statement or summary. The Reserve Bank or the Board, 
nevertheless, may request additional information, if appropriate.
    (b) Acceptance of notice. The 60-day notice period specified in 
Sec. 238.31 of this subpart begins on the date of receipt of a complete 
notice. The Reserve Bank shall notify the person or persons submitting a 
notice under this subpart in writing of the date the notice is or was 
complete and thereby accepted for

[[Page 96]]

processing. The Reserve Bank or the Board may request additional 
relevant information at any time after the date of acceptance.
    (c) Publication--(1) Newspaper announcement. Any person(s) filing a 
notice under this subpart shall publish, in a form prescribed by the 
Board, an announcement soliciting public comment on the proposed 
acquisition. The announcement shall be published in a newspaper of 
general circulation in the community in which the head office of the 
savings and loan holding company is located and in the community in 
which the head office of each of its subsidiary savings associations is 
located. The announcement shall be published no earlier than 15 calendar 
days before the filing of the notice with the appropriate Reserve Bank 
and no later than 10 calendar days after the filing date; and the 
publisher's affidavit of a publication shall be provided to the 
appropriate Reserve Bank.
    (2) Contents of newspaper announcement. The newspaper announcement 
shall state:
    (i) The name of each person identified in the notice as a proposed 
acquiror of the savings and loan holding company;
    (ii) The name of the savings and loan holding company to be 
acquired, including the name of each of the savings and loan holding 
company's subsidiary savings association; and
    (iii) A statement that interested persons may submit comments on the 
notice to the Board or the appropriate Reserve Bank for a period of 20 
days, or such shorter period as may be provided, pursuant to paragraph 
(c)(5) of this section.
    (3) Federal Register announcement. The Board shall, upon filing of a 
notice under this subpart, publish announcement in the Federal Register 
of receipt of the notice. The Federal Register announcement shall 
contain the information required under paragraphs (c)(2)(i) and 
(c)(2)(ii) of this section and a statement that interested persons may 
submit comments on the proposed acquisition for a period of 15 calendar 
days, or such shorter period as may be provided, pursuant to paragraph 
(c)(5) of this section. The Board may waive publication in the Federal 
Register if the Board determines that such action is appropriate.
    (4) Delay of publication. The Board may permit delay in the 
publication required under paragraphs (c)(1) and (c)(3) of this section 
if the Board determines, for good cause shown, that it is in the public 
interest to grant such delay. Requests for delay of publication may be 
submitted to the appropriate Reserve Bank.
    (5) Shortening or waiving notice. The Board may shorten or waive the 
public comment or newspaper publication requirements of this paragraph, 
or act on a notice before the expiration of a public comment period, if 
it determines in writing that an emergency exists, or that disclosure of 
the notice, solicitation of public comment, or delay until expiration of 
the public comment period would seriously threaten the safety or 
soundness of the savings and loan holding company to be acquired.
    (6) Consideration of public comments. In acting upon a notice filed 
under this subpart, the Board shall consider all public comments 
received in writing within the period specified in the newspaper or 
Federal Register announcement, whichever is later. At the Board's 
option, comments received after this period may, but need not, be 
considered.
    (7) Standing. No person (other than the acquiring person) who 
submits comments or information on a notice filed under this subpart 
shall thereby become a party to the proceeding or acquire any standing 
or right to participate in the Board's consideration of the notice or to 
appeal or otherwise contest the notice or the Board's action regarding 
the notice.
    (d) Time period for Board action--(1) Consummation of acquisition--
(i) The notificant(s) may consummate the proposed acquisition 60 days 
after submission to the Reserve Bank of a complete notice under 
paragraph (a) of this section, unless within that period the Board 
disapproves the proposed acquisition or extends the 60-day period, as 
provided under paragraph (d)(2) of this section.
    (ii) The notificant(s) may consummate the proposed transaction 
before the expiration of the 60-day period if the Board notifies the 
notificant(s) in

[[Page 97]]

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



                   Subpart E_Qualified Stock Issuances



Sec. 238.41  Qualified stock issuances by undercapitalized savings 
associations or holding companies.

    (a) Acquisitions by savings and loan holding companies. No savings 
and loan holding company shall be deemed to control a savings 
association solely by reason of the purchase by such savings and loan 
holding company of shares issued by such savings association, or issued 
by any savings and loan holding company (other than a bank holding

[[Page 98]]

company) which controls such savings association, in connection with a 
qualified stock issuance if prior approval of such acquisition is 
granted by the Board under this subpart, unless the acquiring savings 
and loan holding company, directly or indirectly, or acting in concert 
with 1 or more other persons, or through one or more subsidiaries, owns, 
controls, or holds with power to vote, or holds proxies representing, 
more than 15 percent of the voting shares of such savings association or 
holding company.
    (b) Qualification. For purposes of this section, any issuance of 
shares of stock shall be treated as a qualified stock issuance if the 
following conditions are met:
    (1) The shares of stock are issued by--
    (i) An undercapitalized savings association, which for purposes of 
this paragraph (b)(1)(i) shall mean any savings association--
    (A) The assets of which exceed the liabilities of such association; 
and
    (B) Which does not comply with one or more of the capital standards 
in effect under section 5(t) of HOLA; or
    (ii) A savings and loan holding company which is not a bank holding 
company but which controls an undercapitalized savings association if, 
at the time of issuance, the savings and loan holding company is legally 
obligated to contribute the net proceeds from the issuance of such stock 
to the capital of an undercapitalized savings association subsidiary of 
such holding company.
    (2) All shares of stock issued consist of previously unissued stock 
or treasury shares.
    (3) All shares of stock issued are purchased by a savings and loan 
holding company that is registered, as of the date of purchase, with the 
Board in accordance with the provisions of section 10(b) of the HOLA and 
the Board's regulations promulgated thereunder.
    (4) Subject to paragraph (c) of this section, the Board approves the 
purchase of the shares of stock by the acquiring savings and loan 
holding company.
    (5) The entire consideration for the stock issued is paid in cash by 
the acquiring savings and loan holding company.
    (6) At the time of the stock issuance, each savings association 
subsidiary of the acquiring savings and loan holding company (other than 
an association acquired in a transaction pursuant to section 13(c) or 
13(k) of the Federal Deposit Insurance Act, or section 408(m) of the 
National Housing Act, as in effect immediately prior to enactment of the 
Financial Institutions Reform, Recovery and Enforcement Act of 1989) has 
capital (after deducting any subordinated debt, intangible assets, and 
deferred, unamortized gains or losses) of not less than 6\1/2\ percent 
of the total assets of such savings association.
    (7) Immediately after the stock issuance, the acquiring savings and 
loan holding company holds not more than 15 percent of the outstanding 
voting stock of the issuing undercapitalized savings association or 
savings and loan holding company.
    (8) Not more than one of the directors of the issuing association or 
company is an officer, director, employee, or other representative of 
the acquiring company or any of its affiliates.
    (9) Transactions between the savings association or savings and loan 
holding company that issues the shares pursuant to this section and the 
acquiring company and any of its affiliates shall be subject to the 
provisions of section 11 of HOLA and the Board's regulations promulgated 
thereunder.
    (c) Approval of acquisitions--(1) Criteria. The Board, in deciding 
whether to approve or deny an application filed on the basis that it is 
a qualified stock issuance, shall apply the application criteria set 
forth in Sec. 238.15(a), (b), and (c).
    (2) Additional capital commitments not required. The Board shall not 
disapprove any application for the purchase of stock in connection with 
a qualified stock issuance on the grounds that the acquiring savings and 
loan holding company has failed to undertake to make subsequent 
additional capital contributions to maintain the capital of the 
undercapitalized savings association at or above the minimum level 
required by the Board or any other Federal agency having jurisdiction.

[[Page 99]]

    (3) Other conditions. The Board shall impose such conditions on any 
approval of an application for the purchase of stock in connection with 
a qualified stock issuance as the Board determines to be appropriate, 
including--
    (i) A requirement that any savings association subsidiary of the 
acquiring savings and loan holding company limit dividends paid to such 
holding company for such period of time as the Board may require; and
    (ii) Such other conditions as the Board deems necessary or 
appropriate to prevent evasions of this section.
    (4) Application deemed approved if not disapproved within 90 days. 
(i) An application for approval of a purchase of stock in connection 
with a qualified stock issuance shall be deemed to have been approved by 
the Board if such application has not been disapproved by the Board 
before the end of the 90-day period beginning on the date of submission 
to the Board of the complete record on the application as defined in 
Sec. 238.14(g)(3)(ii).
    (ii) [Reserved]
    (d) No limitation on class of stock issued. The shares of stock 
issued in connection with a qualified stock issuance may be shares of 
any class.
    (e) Application form. A savings and loan holding company making 
application to acquire a qualified stock issuance pursuant to this 
subpart shall submit the appropriate form to the appropriate Reserve 
Bank.



 Subpart F_Savings and Loan Holding Company Activities and Acquisitions



Sec. 238.51  Prohibited activities.

    (a) Evasion of law or regulation. No savings and loan holding 
company or subsidiary thereof which is not a savings association shall, 
for or on behalf of a subsidiary savings association, engage in any 
activity or render any services for the purpose or with the effect of 
evading any law or regulation applicable to such savings association.
    (b) Unrelated business activity. No savings and loan holding company 
or subsidiary thereof that is not a savings association shall commence 
any business activity at any time, or continue any business activity 
after the end of the two-year period beginning on the date on which such 
company received approval to become a savings and loan holding company 
that is subject to the limitations of this paragraph (b), except (in 
either case) the following:
    (1) Furnishing or performing management services for a savings 
association subsidiary of such company;
    (2) Conducting an insurance agency or an escrow business;
    (3) Holding, managing, or liquidating assets owned by or acquired 
from a subsidiary savings association of such company;
    (4) Holding or managing properties used or occupied by a subsidiary 
savings association of such company;
    (5) Acting as trustee under deed of trust;
    (6) Any other activity:
    (i) That the Board of Governors of the Federal Reserve System has 
permitted for bank holding companies pursuant to regulations promulgated 
under section 4(c) of the Bank Holding Company Act; or
    (ii) Is set forth in Sec. 238.53, subject to the limitations 
therein; or
    (7)(i) In the case of a savings and loan holding company, 
purchasing, holding, or disposing of stock acquired in connection with a 
qualified stock issuance if prior approval for the acquisition of such 
stock by such savings and loan holding company is granted by the Board 
pursuant to Sec. 238.41.
    (ii) Notwithstanding the provisions of this paragraph (b), any 
savings and loan holding company that, between March 5, 1987 and August 
10, 1987, received approval pursuant to 12 U.S.C. 1730a(e), as then in 
effect, to acquire control of a savings association shall not continue 
any business activity other than those activities set forth in this 
paragraph (b) after August 10, 1987.
    (c) Treatment of certain holding companies. If a director or officer 
of a savings and loan holding company, or an individual who owns, 
controls, or holds with the power to vote (or proxies representing) more 
than 25 percent of the voting shares of a savings and loan holding 
company, directly or indirectly controls more than one savings 
association, any savings and loan holding company controlled by such 
individual

[[Page 100]]

shall be subject to the activities limitations contained in paragraph 
(b) of this section, to the same extent such limitations apply to 
multiple savings and loan holding companies pursuant to Sec. Sec. 
238.51, 238.52, 238.53, and 238.54.



Sec. 238.52  Exempt savings and loan holding companies and 
grandfathered activities.

    (a) Exempt savings and loan holding companies. (1) The following 
savings and loan holding companies are exempt from the limitations of 
Sec. 238.51(b):
    (i) Any savings and loan holding company (or subsidiary of such 
company) that controls only one savings association, if the savings 
association subsidiary of such company is a qualified thrift lender as 
defined in Sec. 238.2(k).
    (ii) Any savings and loan holding company (or subsidiary thereof) 
that controls more than one savings association if all, or all but one 
of the savings association subsidiaries of such company were acquired 
pursuant to an acquisition under section 13(c) or 13(k) of the Federal 
Deposit Insurance Act, or section 408(m) of the National Housing Act, as 
in effect immediately prior to the date of enactment of the Financial 
Institutions Reform, Recovery and Enforcement Act of 1989, and all of 
the savings association subsidiaries of such company are qualified 
thrift lenders as defined in Sec. 238.2(k).
    (2) Any savings and loan holding company whose subsidiary savings 
association(s) fails to qualify as a qualified thrift lender pursuant to 
12 U.S.C. 1467a(m) may not commence, or continue, any service or 
activity other than those permitted under Sec. 238.51(b) of this part, 
except that, the Board may allow, for good cause shown, such company (or 
subsidiary of such company which is not a savings association) up to 3 
years to comply with the limitations set forth in Sec. 238.51(b) of 
this part: Provided, That effective August 9, 1990, any company that 
controls a savings association that should have become or ceases to be a 
qualified thrift lender, except a savings association that requalified 
as a qualified thrift lender pursuant to section 10(m)(3)(D) of the Home 
Owners' Loan Act, shall within one year after the date on which the 
savings association fails to qualify as a qualified thrift lender, 
register as and be deemed to be a bank holding company, subject to all 
of the provisions of the Bank Holding Company Act, section 8 of the 
Federal Deposit Insurance Act, and other statutes applicable to bank 
holding companies in the same manner and to the same extent as if the 
company were a bank holding company and the savings association were a 
bank, as those terms are defined in the Bank Holding Company Act.
    (b) Grandfathered activities for certain savings and loan holding 
companies. Notwithstanding Sec. 238.51(b) and subject to paragraph (c) 
of this section, any savings and loan holding company that received 
approval prior to March 5, 1987 to acquire control of a savings 
association may engage, directly or indirectly or through any subsidiary 
(other than a subsidiary savings association of such company) in any 
activity in which it was lawfully engaged on March 5, 1987, provided, 
that:
    (1) The holding company does not, after August 10, 1987, acquire 
control of a bank or an additional savings association, other than a 
savings association acquired pursuant to section 13(c) or 13(k) of the 
Federal Deposit Insurance Act, or section 406(f) or 408(m) of the 
National Housing Act, as in effect immediately prior to the date of 
enactment of the Financial Institutions Reform, Recovery and Enforcement 
Act of 1989;
    (2) Any savings association subsidiary of the holding company 
continues to qualify as a domestic building and loan association under 
section 7701(a)(19) of the Internal Revenue Code of 1986 after August 
10, 1987;
    (3) The holding company does not engage in any business activity 
other than those permitted under Sec. 238.51(b) or in which it was 
engaged on March 5, 1987;
    (4) Any savings association subsidiary of the holding company does 
not increase the number of locations from which such savings association 
conducts business after March 5, 1987, other than an increase due to a 
transaction under section 13(c) or 13(k) of the Federal Deposit 
Insurance Act, or under section 408(m) of the National Housing Act, as 
in effect immediately

[[Page 101]]

prior to the date of enactment of the Financial Institutions Reform, 
Recovery and Enforcement Act of 1989; and
    (5) Any savings association subsidiary of the holding company does 
not permit any overdraft (including an intra-day overdraft) or incur any 
such overdraft in its account at a Federal Reserve bank, on behalf of an 
affiliate, unless such overdraft results from an inadvertent computer or 
accounting error that is beyond the control of both the savings 
association subsidiary and the affiliate.
    (c) Termination by the Board of grandfathered activities. 
Notwithstanding the provisions of paragraph (b) of this section, the 
Board may, after opportunity for hearing, terminate any activity engaged 
in under paragraph (b) of this section upon determination that such 
action is necessary:
    (1) To prevent conflicts of interest;
    (2) To prevent unsafe or unsound practices; or
    (3) To protect the public interest.
    (d) Foreign holding company. Any savings and loan holding company 
organized under the laws of a foreign country as of June 1, 1984 
(including any subsidiary thereof that is not a savings association) 
that controlled a single savings association on August 10, 1987, shall 
not be subject to the restrictions set forth in Sec. 238.51(b) with 
respect to any activities of such holding company that are conducted 
exclusively in a foreign country.



Sec. 238.53  Prescribed services and activities of savings and loan
holding companies.

    (a) General. For the purpose of Sec. 238.51(b)(6)(ii), the 
activities set forth in paragraph (b) of this section are, and were as 
of March 5, 1987, permissible services and activities for savings and 
loan holding companies or subsidiaries thereof that are neither savings 
associations nor service corporation subsidiaries of subsidiary savings 
associations. Services and activities of service corporation 
subsidiaries of savings and loan holding company subsidiary savings 
associations are prescribed by paragraph (d) of this section.
    (b) Prescribed services and activities. Subject to the provisions of 
paragraph (c) of this section, a savings and loan holding company 
subject to restrictions on its activities pursuant to Sec. 238.51(b), 
or a subsidiary thereof which is neither a savings association nor a 
service corporation of a subsidiary savings association, may furnish or 
perform the following services and engage in the following activities to 
the extent that it has legal power to do so:
    (1) Originating, purchasing, selling and servicing any of the 
following:
    (i) Loans, and participation interests in loans, on a prudent basis 
and secured by real estate, including brokerage and warehousing of such 
real estate loans, except that such a company or subsidiary shall not 
invest in a loan secured by real estate as to which a subsidiary savings 
association of such company has a security interest;
    (ii) Manufactured home chattel paper (written evidence of both a 
monetary obligation and a security interest of first priority in one or 
more manufactured homes, and any equipment installed or to be installed 
therein), including brokerage and warehousing of such chattel paper;
    (iii) Loans, with or without security, for the altering, repairing, 
improving, equipping or furnishing of any residential real estate;
    (iv) Educational loans; and
    (v) Consumer loans, as defined in Sec. 160.3 of this title, 
Provided, That, no subsidiary savings association of such holding 
company or service corporation of such savings association shall engage 
directly or indirectly, in any transaction with any affiliate involving 
the purchase or sale, in whole or in part, of any consumer loan.
    (2) Subject to the provisions of 12 U.S.C. 1468, furnishing or 
performing clerical accounting and internal audit services primarily for 
its affiliates;
    (3) Subject to the provisions of 12 U.S.C. 1468, furnishing or 
performing the following services primarily for its affiliates, and for 
any savings association and service corporation subsidiary thereof, and 
for other multiple holding companies and affiliates thereof:
    (i) Data processing;
    (ii) Credit information, appraisals, construction loan inspections, 
and abstracting;

[[Page 102]]

    (iii) Development and administration of personnel benefit programs, 
including life insurance, health insurance, and pension or retirement 
plans;
    (iv) Research, studies, and surveys;
    (v) Purchase of office supplies, furniture and equipment;
    (vi) Development and operation of storage facilities for microfilm 
or other duplicate records; and
    (vii) Advertising and other services to procure and retain both 
savings accounts and loans;
    (4) Acquisition of unimproved real estate lots, and acquisition of 
other unimproved real estate for the purpose of prompt development and 
subdivision, for:
    (i) Construction of improvements,
    (ii) Resale to others for such construction, or
    (iii) Use as mobile home sites;
    (5) Development, subdivision and construction of improvements on 
real estate acquired pursuant to paragraph (b)(4) of this section, for 
sale or rental;
    (6) Acquisition of improved real estate and mobile homes to be held 
for rental;
    (7) Acquisition of improved real estate for remodeling, 
rehabilitation, modernization, renovation, or demolition and rebuilding 
for sale or for rental;
    (8) Maintenance and management of improved real estate;
    (9) Underwriting or reinsuring contract of credit life or credit 
health and accident insurance in connection with extensions of credit by 
the savings and loan holding company or any of its subsidiaries, or 
extensions of credit by any savings association or service corporation 
subsidiary thereof, or any other savings and loan holding company or 
subsidiary thereof;
    (10) Preparation of State and Federal tax returns for accountholders 
of or borrowers from (including immediate family members of such 
accountholders or borrowers but not including an accountholder or 
borrower which is a corporation operated for profit) an affiliated 
savings association;
    (11) Purchase and sale of gold coins minted and issued by the United 
States Treasury pursuant to Public Law 99-185, 99 Stat. 1177 (1985), and 
activities reasonably incident thereto; and
    (12) Any services or activities approved by order of the former 
Federal Savings and Loan Insurance Corporation prior to March 5, 1987, 
pursuant to its authority under section 408(c)(2)(F) of the National 
Housing Act, as in effect at the time.
    (c) Procedures for commencing services or activities. A notice to 
engage in or acquire a company engaged in a service or activity 
prescribed by paragraph (b) of this section (other than purchase or sale 
of a government debt security) shall be filed by a savings and loan 
holding company (including a company seeking to become a savings and 
loan holding company) with the appropriate Reserve Bank in accordance 
with this paragraph and the Board's Rules of Procedure (12 CFR 262.3).
    (1) Engaging de novo in services or activities. A savings and loan 
holding company seeking to commence or to engage de novo in a service or 
activity pursuant to this section, either directly or through a 
subsidiary, shall file a notice containing a description of the 
activities to be conducted and the identity of the company that will 
conduct the activity.
    (2) Acquiring company engaged in services or activities. A savings 
and loan holding company seeking to acquire or control voting securities 
or assets of a company engaged in a service or activity pursuant to this 
section, shall file a notice containing the following:
    (i) A description of the proposal, including a description of each 
proposed service or activity;
    (ii) The identity of any entity involved in the proposal, and, if 
the notificant proposes to conduct the service or activity through an 
existing subsidiary, a description of the existing activities of the 
subsidiary;
    (iii) If the savings and loan holding company has consolidated 
assets of $150 million or more:
    (A) Parent company and consolidated pro forma balance sheets for the 
acquiring savings and loan holding company as of the most recent quarter 
showing credit and debit adjustments that reflect the proposed 
transaction;

[[Page 103]]

    (B) Consolidated pro forma risk-based capital and leverage ratio 
calculations for the acquiring savings and loan holding company as of 
the most recent quarter; and
    (C) A description of the purchase price and the terms and sources of 
funding for the transaction;
    (iv) If the savings and loan holding company has consolidated assets 
of less than $150 million:
    (A) A pro forma parent-only balance sheet as of the most recent 
quarter showing credit and debit adjustments that reflect the proposed 
transaction; and
    (B) A description of the purchase price and the terms and sources of 
funding for the transaction and, if the transaction is debt funded, one-
year income statement and cash flow projections for the parent company, 
and the sources and schedule for retiring any debt incurred in the 
transaction;
    (v) For each insured depository institution whose Tier 1 capital, 
total capital, total assets or risk-weighted assets change as a result 
of the transaction, the total risk-weighted assets, total assets, Tier 1 
capital and total capital of the institution on a pro forma basis; and
    (vi) A description of the management expertise, internal controls 
and risk management systems that will be utilized in the conduct of the 
proposed service or activity; and
    (vii) A copy of the purchase agreements, and balance sheet and 
income statements for the most recent quarter and year-end for any 
company to be acquired.
    (d) Notice provided to Board. The Reserve Bank shall immediately 
send to the Board a copy of any notice received under paragraphs (c)(1) 
or (c)(2) of this section.
    (e) Notice to public--(1) the Reserve Bank shall notify the Board 
for publication in the Federal Register immediately upon receipt by the 
Reserve Bank of:
    (i) A notice under paragraph (c) of this section or
    (ii) A written request that notice of a proposal under paragraph (c) 
of this section be published in the Federal Register. Such a request may 
request that Federal Register publication occur up to 15 calendar days 
prior to submission of a notice under this subpart.
    (2) The Federal Register notice published under this paragraph (e) 
shall invite public comment on the proposal, generally for a period of 
15 days.
    (f) Action on notices--(1) Reserve Bank action--(i) In general. 
Within 30 calendar days after receipt by the Reserve Bank of a notice 
filed pursuant to paragraphs (c)(1) or (c)(2) of this section, the 
Reserve Banks shall:
    (A) Approve the notice; or
    (B) Refer the notice to the Board for decision because action under 
delegated authority is not appropriate.
    (ii) Return of incomplete notice. Within 7 calendar days of receipt, 
the Reserve Bank may return any notice as informationally incomplete 
that does not contain all of the information required by this section. 
The return of such a notice shall be deemed action on the notice.
    (iii) Notice of action. The Reserve Bank shall promptly notify the 
savings and loan holding company of any action or referral under this 
paragraph.
    (iv) Close of public comment period. The Reserve Bank shall not 
approve any notice under this paragraph (e)(1) of this section prior to 
the third business day after the close of the public comment period, 
unless an emergency exists that requires expedited or immediate action.
    (2) Board action; internal schedule. The Board seeks to act on every 
notice referred to it for decision within 60 days of the date that the 
notice is filed with the Reserve Bank. If the Board is unable to act 
within this period, the Board shall notify the notificant and explain 
the reasons and the date by which the Board expects to act.
    (3)(i) Required time limit for System action. The Board or the 
Reserve Bank shall act on any notice under this section within 60 days 
after the submission of a complete notice.
    (ii) Extension of required period for action. The Board may extend 
the 60-day period required for Board action under paragraph (e)(3)(i) of 
this section for an additional 30 days upon notice to the notificant.
    (4) Requests for additional information. The Board or the Reserve 
Bank may

[[Page 104]]

modify the information requirements under this section or at any time 
request any additional information that either believes is needed for a 
decision on any notice under this section.
    (5) Tolling of period. The Board or the Reserve Bank may at any time 
extend or toll the time period for action on a notice for any period 
with the consent of the notificant.
    (g) Modification or termination of service or activity. The Board 
may require a savings and loan holding company or subsidiary thereof 
which has commenced a service or activity pursuant to this section to 
modify or terminate, in whole or in part, such service or activity as 
the Board finds necessary in order to ensure compliance with the 
provisions and purposes of this part and of section 10 of the Home 
Owners' Loan Act, as amended, or to prevent evasions thereof.
    (h) Alterations. Except as may be otherwise provided in a resolution 
by or on behalf of the Board in a particular case, a service or activity 
commenced pursuant to this section shall not be altered in any material 
respect from that described in the notice filed under paragraph (c)(1) 
of this section, unless before making such alteration notice of intent 
to do so is filed in compliance with the appropriate procedures of said 
paragraph (c)(1) of this section.
    (i) Service corporation subsidiaries of savings associations. The 
Board hereby approves without application the furnishing or performing 
of such services or engaging in such activities as permitted by the OTS 
pursuant to Sec. 545.74 of this title, as in effect on March 5, 1987, 
if such service or activity is conducted by a service corporation 
subsidiary of a subsidiary savings association of a savings and loan 
holding company and if such service corporation has legal power to do 
so.



Sec. 238.54  Permissible bank holding company activities of savings
and loan holding companies.

    (a) General. For purposes of Sec. 238.51(b)(6)(i), the services and 
activities permissible for bank holding companies pursuant to 
regulations that the Board has promulgated pursuant to section 4(c) of 
the Bank Holding Company Act are permissible for savings and loan 
holding companies, or subsidiaries thereof that are neither savings 
associations nor service corporation subsidiaries of subsidiary savings 
associations: Provided, That no savings and loan holding company shall 
commence any activity described in this paragraph (a) without the prior 
approval of this Board pursuant to paragraph (b) of this section, 
unless--
    (1) The holding company received a rating of satisfactory or above 
prior to January 1, 2008, or a composite rating of ``1'' or ``2'' 
thereafter, in its most recent examination, and is not in a troubled 
condition as defined in Sec. 238.72, and the holding company does not 
propose to commence the activity by an acquisition (in whole or in part) 
of a going concern; or
    (2) The activity is permissible under authority other than section 
10(c)(2)(F)(i) of the HOLA without prior notice or approval. Where an 
activity is within the scope of both Sec. 238.53 and this section, the 
procedures of Sec. 238.53 shall govern.
    (b) Procedures for applications. Applications to commence any 
activity prescribed under paragraph (a) of this section shall be filed 
with the appropriate Reserve Bank on the designated form. The Board must 
act upon such application according to the procedures of Sec. 
238.53(d), (e), and (f).
    (c) Factors considered in acting on applications. In evaluating an 
application filed under paragraph (b) of this section, the Board shall 
consider whether the performance by the applicant of the activity can 
reasonably be expected to produce benefits to the public (such as 
greater convenience, increased competition, or gains in efficiency) that 
outweigh possible adverse effects (such as undue concentration of 
resources, decreased or unfair competition, conflicts of interest, or 
unsound financial practices). This consideration includes an evaluation 
of the financial and managerial resources of the applicant, including 
its subsidiaries, and of any company to be acquired, and the effect of 
the proposed transaction on those resources.

[[Page 105]]



             Subpart G_Financial Holding Company Activities



Sec. 238.61  Scope.

    Section 10(c)(2)(H) of the HOLA (12 U.S.C. 1467a(c)(2)(H)) permits a 
savings and loan holding company to engage in activities that are 
permissible for a financial holding company if the savings and holding 
company meets the criteria to qualify as a financial holding company and 
complies with all of the requirements applicable to a financial holding 
company under sections 4(l) and 4(m) of the BHC Act as if the savings 
and loan holding company was a bank holding company. This subpart 
provides the requirements and restrictions for a savings and holding 
company to be treated as a financial holding company for the purpose of 
engaging in financial holding company activities. This subpart does not 
apply to savings and loan holding companies described in section 
10(c)(9)(C) of the HOLA (12 U.S.C. 1467a(c)(9)(C)).



Sec. 238.62  Definitions.

    For the purposes of this subpart:
    (a) Financial holding company activities refers to activities 
permissible under section 4(k) of the Bank Holding Company Act of 1956 
(12 U.S.C. 1843(k)) and Sec. 225.86 of this chapter.
    (b) [Reserved]



Sec. 238.63  Requirements to engage in financial holding company activities.

    (a) In general. In order for a savings and loan holding company to 
engage in financial holding company activities:
    (1) The savings and loan holding company and all depository 
institutions controlled by the savings and loan holding company must be 
and remain well capitalized;
    (2) The savings and loan holding company and all depository 
institutions controlled by the savings and loan company must be and 
remain well managed; and
    (3) The savings and loan holding company must have made an effective 
election to be treated as a financial holding company.
    (b) [Reserved]



Sec. 238.64  Election required.

    (a) In general. Except as provided below, a savings and loan holding 
company that wishes to engage in financial holding company activities 
must have an effective election to be treated as a financial holding 
company.
    (b) Activities performed under separate HOLA authority. A savings 
and loan holding company that conducts only the following activities is 
not required to elect to be treated as a financial holding company:
    (1) BHC Act section 4(c)(8) activities. Activities permissible under 
section 10(c)(2)(F)(i) of the HOLA (12 U.S.C. 1467a(c)(2)(F)(i)).
    (2) Insurance agency or escrow business activities. Activities 
permissible under section 10(c)(2)(B) of the HOLA (12 U.S.C. 
1467a(c)(2)(B)).
    (3) ``1987 List'' activities. Activities permissible under section 
10(c)(2)(F)(ii) of the HOLA (12 U.S.C. 1467a(c)(2)(F)(ii)).
    (c) Existing requirements apply. A savings and loan holding company 
that has not made an effective election to be treated as a financial 
holding company and that conducts the activities described in paragraphs 
(b)(1) through (3) of this section remains subject to any rules and 
requirements applicable to the conduct of such activities.



Sec. 238.65  Election procedures.

    (a) Filing requirement. A savings and loan holding company may elect 
to be treated as a financial holding company by filing a written 
declaration with the appropriate Reserve Bank. A declaration by a 
savings and loan holding company is considered to be filed on the date 
that all information required by paragraph (b) of this section is 
received by the appropriate Reserve Bank.
    (b) Contents of declaration. To be deemed complete, a declaration 
must:
    (1) State that the savings and loan holding company elects to be 
treated as a financial holding company in order to engage in financial 
holding company activities;
    (2) Provide the name and head office address of the savings and loan 
holding company and of each depository institution controlled by the 
savings and loan holding company;

[[Page 106]]

    (3) Certify that the savings and loan holding company and each 
depository institution controlled by the savings and loan holding 
company is well capitalized as of the date the savings and loan holding 
company submits its declaration;
    (4) Certify that the savings and loan holding company and each 
savings association controlled by the savings and loan holding company 
is well managed as of the date the savings and loan holding company 
submits its declaration;
    (c) Effectiveness of election. An election by a savings and loan 
holding company to be treated as a financial holding company shall not 
be effective if, during the period provided in paragraph (d) of this 
section, the Board finds that, as of the date the declaration was filed 
with the appropriate Reserve Bank:
    (1) Any insured depository institution controlled by the savings and 
loan holding company (except an institution excluded under paragraph (d) 
of this section) has not achieved at least a rating of ``satisfactory 
record of meeting community credit needs'' under the Community 
Reinvestment Act at the savings association's most recent examination; 
or
    (2) Any depository institution controlled by the bank holding 
company is not both well capitalized and well managed.
    (d) Consideration of the CRA performance of a recently acquired 
savings association. Except as provided in paragraph (f) of this 
section, a savings association will be excluded for purposes of the 
review of the Community Reinvestment Act rating provisions of paragraph 
(c)(1) of this section if:
    (1) The savings and loan holding company acquired the savings 
association during the 12-month period preceding the filing of an 
election under paragraph (a) of this section;
    (2) The savings and loan holding company has submitted an 
affirmative plan to the appropriate Federal banking agency for the 
savings association to take actions necessary for the institution to 
achieve at least a rating of ``satisfactory record of meeting community 
credit needs'' under the Community Reinvestment Act at the next 
examination of the savings association; and
    (3) The appropriate Federal banking agency for the savings 
association has accepted the plan described in paragraph (d)(2) of this 
section.
    (e) Effective date of election--(1) In general. An election filed by 
a savings and loan holding company under paragraph (a) of this section 
is effective on the 31st calendar day after the date that a complete 
declaration was filed with the appropriate Reserve Bank, unless the 
Board notifies the savings and loan holding company prior to that time 
that the election is ineffective.
    (2) Earlier notification that an election is effective. The Board or 
the appropriate Reserve Bank may notify a savings and loan holding 
company that its election to be treated as a financial holding company 
is effective prior to the 31st day after the date that a complete 
declaration was filed with the appropriate Reserve Bank. Such a 
notification must be in writing.
    (3) Special effective date rules for the OTS transfer date--(i) 
Deadline for filing declaration. For savings and loan holding companies 
that meet the requirements of Sec. 238.63 and that are engaged in 
financial holding company activities pursuant to existing authority as 
of July 21, 2011, an election under paragraph (a) must be filed with the 
appropriate Reserve Bank by December 31, 2011. The election must be 
accompanied by a description of the financial holding company activities 
conducted by the savings and loan holding company.
    (ii) Effective date of election. An election filed under paragraph 
(e)(3)(i) of this section is effective on the 61st calendar day after 
the date that a complete declaration was filed with the appropriate 
Reserve Bank, unless the Board notifies the savings and loan holding 
company prior to that time that the election is ineffective.
    (iii) Earlier notification that an election is effective. The Board 
or the appropriate Reserve Bank may notify a savings and loan holding 
company that its election under paragraph (e)(3)(i) of this section to 
be treated as a financial holding company is effective prior to

[[Page 107]]

the 61st day after the date that a complete declaration was filed with 
the appropriate Reserve Bank. Such notification must be in writing.
    (iv) Filings by savings and loan holding companies that do not meet 
requirements. (A) For savings and loan holding companies that are 
engaged in financial holding company activities as of July 21, 2011 but 
do not meet the requirements of Sec. 238.63, a declaration must be 
filed with the appropriate Reserve Bank by December 31, 2011, 
specifying:
    (1) The name and head office address of the savings and loan holding 
company and of each despoitory institution controlled by the savings and 
loan holding company;
    (2) The financial holding company activities that the savings and 
loan holding company is engaged in;
    (3) The requirements of Sec. 238.63 that the savings and loan 
holding company does not meet; and
    (4) A description of how the savings and loan holding company will 
achieve compliance with Sec. 238.63 prior to June 30, 2012.
    (B) A savings and loan holding company covered by this subparagraph 
will be subject to:
    (1) The notice, remediation agreement, divestiture, and any other 
requirements described in Sec. 225.83 of this chapter; or
    (2) The activities limitations and any other requirements described 
in Sec. 225.84 of this chapter, depending on which requirements of 
Sec. 238.63 the savings and loan holding company does not meet.
    (f) Requests to be treated as a financial holding company submitted 
as part of an application to become a savings and loan holding company. 
A company that is not a savings and loan holding company and has applied 
for the Board's approval to become a savings and loan holding company 
under section 10(e) of the HOLA (12 U.S.C. 1467a(e)) may as part of that 
application submit a request to be treated as a financial holding 
company. Such requests shall be made and reviewed by the Board as 
described in Sec. 225.82(f) of this chapter.
    (g) Board's authority to exercise supervisory authority over a 
savings and loan holding company treated as a financial holding company. 
An effective election to be treated as a financial holding company does 
not in any way limit the Board's statutory authority under the HOLA, the 
Federal Deposit Insurance Act, or any other relevant Federal statute to 
take appropriate action, including imposing supervisory limitations, 
restrictions, or prohibitions on the activities and acquisitions of a 
savings and loan holding company that has elected to be treated as a 
financial holding company, or enforcing compliance with applicable law.



Sec. 238.66  Ongoing requirements.

    (a) In general. A savings and loan holding company with an effective 
election to be treated as a financial holding company is subject to the 
same requirements applicable to a financial holding company, under 
sections 4(l) and 4(m) of the Bank Holding Company Act and section 
804(c) of the Community Reinvestment Act of 1977 (12 U.S.C. 2903(c)) as 
if the savings and loan holding company was a bank holding company.
    (b) Consequences of failing to continue to meet applicable capital 
and management requirements. A savings and loan holding company with an 
effective election to be treated as a financial holding company that 
fails to meet applicable capital and management requirements at Sec. 
238.63 is subject to the notice, remediation agreement, divestiture, and 
any other requirements described in Sec. 225.83 of this chapter.
    (c) Consequences of failing to continue to maintain a satisfactory 
or better rating under the Community Reinvestment Act at all insured 
depository institution subsidiaries. A savings and loan holding company 
with an effective election to be treated as a financial holding company 
that fails to maintain a satisfactory or better rating under the 
Community Reinvestment Act at all insured deposit institution 
subsidiaries is subject to the activities limitations and any other 
requirements described in Sec. 225.84 of this chapter.
    (d) Notice and approval requirements for conducting financial 
holding company activities; permissible activities. A savings and loan 
holding company with an effective election to be treated as a financial 
holding company may conduct the activities listed in Sec. 225.86 of 
this chapter subject to the notice, approval,

[[Page 108]]

and any other requirements described in Sec. Sec. 225.85 through 225.89 
of this chapter.



   Subpart H_Notice of Change of Director or Senior Executive Officer



Sec. 238.71  Purpose.

    This subpart implements 12 U.S.C. 1831i, which requires certain 
savings and loan holding companies to notify the Board before appointing 
or employing directors and senior executive officers.



Sec. 238.72  Definitions.

    The following definitions apply to this subpart:
    (a) Director means an individual who serves on the board of 
directors of a savings and loan holding company. This term does not 
include an advisory director who:
    (1) Is not elected by the shareholders;
    (2) Is not authorized to vote on any matters before the board of 
directors or any committee of the board of directors;
    (3) Provides only general policy advice to the board of directors or 
any committee of the board of directors; and
    (4) Has not been identified by the Board or Reserve Bank in writing 
as an individual who performs the functions of a director, or who 
exercises significant influence over, or participates in, major 
policymaking decisions of the board of directors.
    (b) Senior executive officer means an individual who holds the title 
or performs the function of one or more of the following positions 
(without regard to title, salary, or compensation): president, chief 
executive officer, chief operating officer, chief financial officer, 
chief lending officer, or chief investment officer. Senior executive 
officer also includes any other person identified by the Board or 
Reserve Bank in writing as an individual who exercises significant 
influence over, or participates in, major policymaking decisions, 
whether or not hired as an employee.
    (c) Troubled condition means:
    (1) A savings and loan holding company that has an unsatisfactory 
rating under the applicable holding company rating system, or that is 
informed in writing by the Board or Reserve Bank that it has an adverse 
effect on its subsidiary savings association.
    (2) A savings and loan holding company that is subject to a capital 
directive, a cease-and-desist order, a consent order, a formal written 
agreement, or a prompt corrective action directive relating to the 
safety and soundness or financial viability of the savings association, 
unless otherwise informed in writing by the Board or Reserve Bank; or
    (3) A savings and loan holding company that is informed in writing 
by the Board or Reserve Bank that it is in troubled condition based on 
information available to the Board or Reserve Bank.



Sec. 238.73  Prior notice requirements.

    (a) Savings and loan holding company. Except as provided under Sec. 
238.78, a savings and loan holding company must give the Board 30 days' 
written notice, as specified in Sec. 238.74, before adding or replacing 
any member of its board of directors, employing any person as a senior 
executive officer, or changing the responsibilities of any senior 
executive officer so that the person would assume a different senior 
executive position if the savings and loan holding company is in 
troubled condition.
    (b) Notice by individual. An individual seeking election to the 
board of directors of a savings and loan holding company described in 
paragraph (a) of this section that has not been nominated by management, 
must either provide the prior notice required under paragraph (a) of 
this section or follow the process under Sec. 238.78(b).



Sec. 238.74  Filing and processing procedures.

    (a) Filing notice--(1) Content. The notice required in Sec. 238.73 
shall be filed with the appropriate Reserve Bank and shall contain:
    (i) The information required by paragraph 6(A) of the Change in Bank 
Control Act (12 U.S.C. 1817(j)(6)(A)) as may be prescribed in the 
designated Board form;

[[Page 109]]

    (ii) Additional information consistent with the Federal Financial 
Institutions Examination Council's Joint Statement of Guidelines on 
Conducting Background Checks and Change in Control Investigations, as 
set forth in the designated Board form; and
    (iii) Such other information as may be required by the Board or 
Reserve Bank.
    (2) Modification. The Reserve Bank may modify or accept other 
information in place of the requirements of this section for a notice 
filed under this subpart.
    (3) Acceptance and processing of notice. The 30-day notice period 
specified in section 238.73 shall begin on the date all information 
required to be submitted by the notificant pursuant to this section is 
received by the appropriate Reserve Bank. The Reserve Bank shall notify 
the savings and loan holding company or individual submitting the notice 
of the date on which all required information is received and the notice 
is accepted for processing, and of the date on which the 30-day notice 
period will expire. The Board or Reserve Bank may extend the 30-day 
notice period for an additional period of not more than 60 days by 
notifying the savings and loan holding company or individual filing the 
notice that the period has been extended and stating the reason for not 
processing the notice within the 30-day notice period.
    (b) [Reserved]



Sec. 238.75  Standards for review.

    (a) Notice of disapproval. The Board or Reserve Bank will disapprove 
a notice if, pursuant to the standard set forth in 12 U.S.C. 1831i(e), 
the Board or Reserve Bank finds that the competence, experience, 
character, or integrity of the proposed individual indicates that it 
would not be in the best interests of the depositors of the savings and 
loan holding company or of the public to permit the individual to be 
employed by, or associated with, the savings and loan holding company. 
If the Board or Reserve Bank disapproves a notice, it will issue a 
written notice that explains why the Board or Reserve Bank disapproved 
the notice. The Board or Reserve Bank will send the notice to the 
savings and loan holding company and the individual.
    (b) Appeal of a notice of disapproval. (1) A disapproved individual 
or a regulated institution that has submitted a notice that is 
disapproved under this section may appeal the disapproval to the Board 
within 15 days of the effective date of the notice of disapproval. An 
appeal shall be in writing and explain the reasons for the appeal and 
include all facts, documents, and arguments that the appealing party 
wishes to be considered in the appeal, and state whether the appealing 
party is requesting an informal hearing.
    (2) Written notice of the final decision of the Board shall be sent 
to the appealing party within 60 days of the receipt of an appeal, 
unless the appealing party's request for an informal hearing is granted.
    (3) The disapproved individual may not serve as a director or senior 
executive officer of the state member bank or bank holding company while 
the appeal is pending.
    (c) Informal hearing. (1) An individual or regulated institution 
whose notice under this section has been disapproved may request an 
informal hearing on the notice. A request for an informal hearing shall 
be in writing and shall be submitted within 15 days of a notice of 
disapproval. The Board may, in its sole discretion, order an informal 
hearing if the Board finds that oral argument is appropriate or 
necessary to resolve disputes regarding material issues of fact.
    (2) An informal hearing shall be held within 30 days of a request, 
if granted, unless the requesting party agrees to a later date.
    (3) Written notice of the final decision of the Board shall be given 
to the individual and the regulated institution within 60 days of the 
conclusion of any informal hearing ordered by the Board, unless the 
requesting party agrees to a later date.



Sec. 238.76  Waiting period.

    (a) At expiration of period. A proposed director or senior executive 
officer may begin service at the end of the 30-day period and any 
extension as provided under Sec. 238.74 unless the Board or Reserve 
Bank notifies you that it has

[[Page 110]]

disapproved the notice before the end of the period.
    (b) Prior to expiration of period. A proposed director or senior 
executive officer may begin service before the end of the 30-day period 
and any extension as provided under section 238.74 of this section, if 
the Board or the Reserve Bank notifies in writing the savings and loan 
holding company or individual submitting the notice of the Board's or 
Reserve Bank's intention not to disapprove the notice.



Sec. 238.77  Waiver of prior notice requirement.

    (a) Waiver request. An individual may serve as a director or senior 
executive officer before filing a notice under this subpart if the Board 
or Reserve Bank finds that:
    (1) Delay would threaten the safety or soundness of the savings and 
loan holding company;
    (2) Delay would not be in the public interest; or
    (3) Other extraordinary circumstances exist that justify waiver of 
prior notice.
    (b) Automatic waiver. An individual may serve as a director upon 
election to the board of directors before filing a notice under this 
subpart, if the individual:
    (1) Is not proposed by the management of the savings and loan 
holding company;
    (2) Is elected as a new member of the board of directors at a 
meeting of the savings and loan holding company; and
    (3) Provides to the appropriate Reserve Bank all the information 
required in Sec. 238.74 within two (2) business days after the 
individual's election.
    (c) Subsequent Board or Reserve Bank action. The Board or Reserve 
Bank may disapprove a notice within 30 days after the Board or Reserve 
Bank issues a waiver under paragraph (a) of this section or within 30 
days after the election of an individual who has filed a notice and is 
serving pursuant to an automatic waiver under paragraph (b) of this 
section.



   Subpart I_Prohibited Service at Savings and Loan Holding Companies



Sec. 238.81  Purpose.

    This subpart implements section 19(e)(1) of the Federal Deposit 
Insurance Act (FDIA), which prohibits persons who have been convicted of 
certain criminal offenses or who have agreed to enter into a pre-trial 
diversion or similar program in connection with a prosecution for such 
criminal offenses from occupying various positions with a savings and 
loan holding company. This part also implements section 19(e)(2) of the 
FDIA, which permits the Board to provide exemptions, by regulation or 
order, from the application of the prohibition. This subpart provides an 
exemption for savings and loan holding company employees whose 
activities and responsibilities are limited solely to agriculture, 
forestry, retail merchandising, manufacturing, or public utilities 
operations, and a temporary exemption for certain persons who held 
positions with respect to a savings and loan holding company as of 
October 13, 2006. The subpart also describes procedures for applying to 
the Board for an exemption.



Sec. 238.82  Definitions.

    The following definitions apply to this subpart:
    (a) Institution-affiliated party is defined at 12 U.S.C. 1813(u), 
except that the phrase ``savings and loan holding company'' is 
substituted for ``insured depository institution'' each place that it 
appears in that definition.
    (b) Enforcement Counsel means any individual who files a notice of 
appearance to serve as counsel on behalf of the Board in the proceeding.
    (c) Person means an individual and does not include a corporation, 
firm or other business entity.
    (d) Savings and loan holding company is defined at Sec. 238.2(m), 
but excludes a subsidiary of a savings and loan holding company that is 
not itself a savings and loan holding company.



Sec. 238.83  Prohibited actions.

    (a) Person. If a person was convicted of a criminal offense 
described in

[[Page 111]]

Sec. 238.84, or agreed to enter into a pretrial diversion or similar 
program in connection with a prosecution for such a criminal offense, he 
or she may not:
    (1) Become, or continue as, an institution-affiliated party with 
respect to any savings and loan holding company.
    (2) Own or control, directly or indirectly, any savings and loan 
holding company. A person will own or control a savings and loan holding 
company if he or she owns or controls that company under subpart D of 
this part.
    (3) Otherwise participate, directly or indirectly, in the conduct of 
the affairs of any savings and loan holding company.
    (b) Savings and loan holding company. A savings and loan holding 
company may not permit any person described in paragraph (a) of this 
section to engage in any conduct or to continue any relationship 
prohibited under that paragraph.



Sec. 238.84  Covered convictions or agreements to enter into pre-trial
diversions or similar programs.

    (a) Covered convictions and agreements. Except as described in Sec. 
238.85, this subpart covers:
    (1) Any conviction of a criminal offense involving dishonesty, 
breach of trust, or money laundering. Convictions do not cover arrests, 
pending cases not brought to trial, acquittals, convictions reversed on 
appeal, pardoned convictions, or expunged convictions.
    (2) Any agreement to enter into a pretrial diversion or similar 
program in connection with a prosecution for a criminal offense 
involving dishonesty, breach of trust or money laundering. A pretrial 
diversion or similar program is a program involving a suspension or 
eventual dismissal of charges or of a criminal prosecution based upon an 
agreement for treatment, rehabilitation, restitution, or other non-
criminal or non-punitive alternative.
    (b) Dishonesty or breach of trust. A determination whether a 
criminal offense involves dishonesty or breach of trust is based on the 
statutory elements of the crime.
    (1) ``Dishonesty'' means directly or indirectly to cheat or defraud, 
to cheat or defraud for monetary gain or its equivalent, or to 
wrongfully take property belonging to another in violation of any 
criminal statute. Dishonesty includes acts involving a want of 
integrity, lack of probity, or a disposition to distort, cheat, or act 
deceitfully or fraudulently, and may include crimes which federal, state 
or local laws define as dishonest.
    (2) ``Breach of trust'' means a wrongful act, use, misappropriation, 
or omission with respect to any property or fund which has been 
committed to a person in a fiduciary or official capacity, or the misuse 
of one's official or fiduciary position to engage in a wrongful act, 
use, misappropriation, or omission.



Sec. 238.85  Adjudications and offenses not covered.

    (a) Youthful offender or juvenile delinquent. This subpart does not 
cover any adjudication by a court against a person as:
    (1) A youthful offender under any youthful offender law; or
    (2) A juvenile delinquent by a court with jurisdiction over minors 
as defined by state law.
    (b) De minimis criminal offense. This subpart does not cover de 
minimis criminal offenses. A criminal offense is de minimis if:
    (1) The person has only one conviction or pretrial diversion or 
similar program of record;
    (2) The offense was punishable by imprisonment for a term of less 
than one year, a fine of less than $1,000, or both, and the person did 
not serve time in jail.
    (3) The conviction or program was entered at least five years before 
the date the person first held a position described in Sec. 238.83(a); 
and
    (4) The offense did not involve an insured depository institution, 
insured credit union, or other banking organization (including a savings 
and loan holding company, bank holding company, or financial holding 
company).
    (5) The person must disclose the conviction or pretrial diversion or 
similar program to all insured depository institutions and other banking 
organizations the affairs of which he or she participates.

[[Page 112]]

    (6) The person must be covered by a fidelity bond to the same extent 
as others in similar positions with the savings and loan holding 
company.



Sec. 238.86  Exemptions.

    (a) Employees. An employee of a savings and loan holding company is 
exempt from the prohibition in Sec. 238.83, if all of the following 
conditions are met:
    (1) The employee's responsibilities and activities are limited 
solely to agriculture, forestry, retail merchandising, manufacturing, or 
public utilities operations.
    (2) The savings and loan holding company maintains a list of all 
policymaking positions and reviews this list annually.
    (3) The employee's position does not appear on the savings and loan 
holding company's list of policymaking positions, and the employee does 
not, in fact, exercise any policymaking function with the savings and 
loan holding company.
    (4) The employee:
    (i) Is not an institution-affiliated party of the savings and loan 
holding company other than by virtue of the employment described in 
paragraph (a) of this section.
    (ii) Does not own or control, directly or indirectly, the savings 
and loan holding company; and
    (iii) Does not participate, directly or indirectly, in the conduct 
of the affairs of the savings and loan holding company.
    (b) Temporary exemption. (1) Any prohibited person who was an 
institution affiliated party with respect to a savings and loan holding 
company, who owned or controlled, directly or indirectly a savings and 
loan holding company, or who otherwise participated directly or 
indirectly in the conduct of the affairs of a savings and loan holding 
company on October 13, 2006, may continue to hold the position with the 
savings and loan holding company.
    (2) This exemption expires on December 31, 2012, unless the savings 
and loan holding company or the person files an application seeking a 
case-by-case exemption for the person under Sec. 238.87 by that date. 
If the savings and loan holding company or the person files such an 
application, the temporary exemption expires on:
    (i) The date of issuance of a Board approval of the application 
under Sec. 238.89(a);
    (ii) The expiration of the 20-day period for filing a request for 
hearing under Sec. 238.90(a) provided there is no timely request for 
hearing following the issuance by the Board of a denial of the 
application under that section;
    (iii) The date that the Board denies a timely request for hearing 
under Sec. 238.90(b) following the issuance of a Board denial of the 
application under Sec. 238.89(b);
    (iv) The date that the Board issues a decision under Sec. 
238.90(d); or
    (v) The date an applicant withdraws the application.



Sec. 238.87  Filing procedures.

    (a) Who may file. (1) A savings and loan holding company or a person 
who was convicted of a criminal offense described in Sec. 238.84 or who 
has agreed to enter into a pre-trial diversion or similar program in 
connection with a prosecution for such a criminal offense may file an 
application with the Board seeking an exemption from the prohibitions in 
this subpart.
    (2) A savings and loan holding company or a person may seek an 
exemption only for a designated position (or positions) with respect to 
a named savings and loan holding company.
    (3) A savings and loan holding company or a person may not file an 
application less than one year after the latter of the date of a denial 
of the same exemption under Sec. 238.89(b), Sec. 238.90(a) or Sec. 
238.90(d).
    (b) Prohibition pending Board action. Unless a savings and loan 
holding company or a person is exempt under Sec. 238.86(b), the 
prohibitions in Sec. 238.83 continue to apply pending Board action on 
the application.



Sec. 238.88  Factors for review.

    (a) Board review. (1) In determining whether to approve an exemption 
application filed under Sec. 238.87, the Board will consider the extent 
to which the position that is the subject of the application enables a 
person to:

[[Page 113]]

    (i) Participate in the major policymaking functions of the savings 
and loan holding company; or
    (ii) Threaten the safety and soundness of any insured depository 
institution that is controlled by the savings and loan holding company, 
the interests of its depositors, or the public confidence in the insured 
depository institution.
    (2) The Board will also consider whether the applicant has 
demonstrated the person's fitness to hold the described position. Some 
positions may be approved without an extensive review of a person's 
fitness because the position does not enable a person to take the 
actions described in paragraph (a)(1) of this section.
    (b) Factors. In making the determinations under paragraph (a) of 
this section, the Board will consider the following factors:
    (1) The position;
    (2) The amount of influence and control a person holding the 
position will be able to exercise over the affairs and operations of the 
savings and loan holding company and the insured depository institution;
    (3) The ability of the management of the savings and loan holding 
company to supervise and control the activities of a person holding the 
position;
    (4) The level of ownership that the person will have at the savings 
and loan holding company;
    (5) The specific nature and circumstances of the criminal offense. 
The question whether a person who was convicted of a crime or who agreed 
to enter into a pretrial diversion or similar program for a crime was 
guilty of that crime is not relevant;
    (6) Evidence of rehabilitation; and
    (7) Any other relevant factor.



Sec. 238.89  Board action.

    (a) Approval. The Board will notify an applicant if an application 
under this subpart is approved. An approval by the Board may include 
such conditions as the Board determines to be appropriate.
    (b) Denial. If Board denies an application, the Board will notify an 
applicant promptly.



Sec. 238.90  Hearings.

    (a) Hearing requests. Within 20 days of the date of issuance of a 
denial of an application filed under this subpart, a savings and loan 
holding company or a person whose application the Board has denied may 
file a written request demonstrating good cause for a hearing on the 
denial.
    (b) Board review of hearing request. The Board will review the 
hearing request to determine if the savings and loan holding company or 
person has demonstrated good cause for a hearing on the application. 
Within 30 days after the filing of a timely request for a hearing, the 
Board will notify the savings and loan holding company or person in 
writing of its decision to grant or deny the hearing request. If the 
Board grants the request for a hearing, it will order a hearing to be 
commenced within 60 days of the issuance of the notification. Upon the 
request of a party, the Board may at its discretion order a later 
hearing date.
    (c) Hearing procedures. The following procedures apply to hearings 
under this subpart.
    (1) The hearing shall be held in Washington, DC, or at another 
designated place, before a presiding officer designated by the Board.
    (2) An applicant may elect in writing to have the matter determined 
on the basis of written submissions, rather than an oral hearing.
    (3) The parties to the hearing are Enforcement Counsel and the 
applicant.
    (4) The provisions of Sec. Sec. 263.2, 263.4, 263.6 through 263.12, 
and 263.16 of this chapter apply to the hearing.
    (5) Discovery is not permitted.
    (6) A party may introduce relevant and material documents and make 
oral argument at the hearing.
    (7) At the discretion of the presiding officer, witnesses may be 
presented within specified time limits, provided that a list of 
witnesses is furnished to the presiding officer and to all other parties 
prior to the hearing. Witnesses must be sworn, unless otherwise directed 
by the presiding officer. The presiding officer may ask questions of any 
witness. Each party may cross-examine any witness presented by the 
opposing

[[Page 114]]

party. The Board will furnish a transcript of the proceedings upon an 
applicant's request and upon the payment of the costs of the transcript.
    (8) The presiding officer has the power to administer oaths and 
affirmations, to take or cause to be taken depositions of unavailable 
witnesses, and to issue, revoke, quash, or modify subpoenas and 
subpoenas duces tecum. If the presentation of witnesses is permitted, 
the presiding officer may require the attendance of witnesses from any 
state, territory, or other place subject to the jurisdiction of the 
United States at any location where the proceeding is being conducted. 
Witness fees are paid in accordance with section 263.14 of this chapter.
    (9) Upon the request of a party, the record will remain open for 
five business days following the hearing for additional submissions to 
the record.
    (10) Enforcement Counsel has the burden of proving a prima facie 
case that a person is prohibited from a position under section 19(e) of 
the FDIA. The applicant has the burden of proof on all other matters.
    (11) The presiding officer must make recommendations to the Board, 
where possible, within 20 days after the last day for the parties to 
submit additions to the record.
    (12) The presiding officer must forward his or her recommendation to 
the Board who shall promptly certify the entire record, including the 
presiding officer's recommendations. The Board's certification will 
close the record.
    (d) Decision. After the certification of the record, the Board will 
notify the parties of its decision by issuing an order approving or 
denying the application.
    (1) An approval order will require fidelity bond coverage for the 
position to the same extent as similar positions with the savings and 
loan holding company. The approval order may include such other 
conditions as may be appropriate.
    (2) A denial order will include a summary of the relevant factors 
under Sec. 238.88(b).



                Subpart J_Management Official Interlocks



Sec. 238.91  Authority, purpose, and scope.

    (a) Authority. This subpart 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 subpart 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 subpart applies to management officials of savings 
and loan holding companies, and their affiliates.



Sec. 238.92  Definitions.

    For purposes of this subpart, 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 involving a savings and 
loan holding company 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.

[[Page 115]]

    (b) 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.
    (c) Community means a city, town, or village, and contiguous or 
adjacent cities, towns, or villages.
    (d) Contiguous or adjacent cities, towns, or villages means cities, 
towns, or villages whose borders touch each other 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.
    (e) 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.
    (f) 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.
    (g) Depository institution affiliate means a depository institution 
that is an affiliate of a depository organization.
    (h) Depository organization means a depository institution or a 
depository holding company.
    (i) 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.
    (j) 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 Sec. 
225.71(c) of this chapter;
    (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 serving in any 
of the capacities in this paragraph (j)(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 the 
business outside the United States of a foreign commercial bank; or
    (iii) A person described in the provisos of section 202(4) of the 
Interlocks Act (12 U.S.C. 3201(4)) (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).
    (k) 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, or a loan production office.
    (l) Person means a natural person, corporation, or other business 
entity.
    (m) 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.
    (n) 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,

[[Page 116]]

after giving the affected persons an opportunity to respond, whether a 
person is a representative or nominee.
    (o) Savings association means:
    (1) Any Federal savings association (as defined in section 3(b)(2) 
of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(2)));
    (2) Any state savings association (as defined in section 3(b)(3) of 
the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(3))) the deposits 
of which are insured by the Federal Deposit Insurance Corporation; and
    (3) Any corporation (other than a bank as defined in section 3(a)(1) 
of the Federal Deposit Insurance Act (12 U.S.C. 1813(a)(1))) the 
deposits of which are insured by the Federal Deposit Insurance 
Corporation, that the Board of Directors of the Federal Deposit 
Insurance Corporation and the Comptroller of the Currency jointly 
determine to be operating in substantially the same manner as a savings 
association.
    (p) 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:
    (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.
    (q) 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. 238.93  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 $50 million or 
more.
    (c) Major assets. A management official of a depository organization 
with total assets exceeding $2.5 billion (or any affiliate of such an 
organization) may not serve at the same time as a management official of 
an unaffiliated depository organization with total assets exceeding $1.5 
billion (or any affiliate of such an organization), regardless of the 
location of the two depository organizations. The Board will adjust 
these thresholds, as necessary, based on the year-to-year change in the 
average of the Consumer Price Index for the Urban Wage Earners and 
Clerical Workers, not seasonally adjusted, with rounding to the nearest 
$100 million. The Board will announce the revised thresholds by 
publishing a final rule without notice and comment in the Federal 
Register.



Sec. 238.94  Interlocking relationships permitted by statute.

    The prohibitions of Sec. 238.93 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

[[Page 117]]

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 institutions 
regulatory agency and is acquired by another depository organization. 
This exemption lasts for five years, beginning on the date the 
depository organization is acquired;
    (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:
    (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; and
    (i) Any savings association or any savings and loan holding company 
(as defined in section 10(a)(1)(D) of the Home Owners' Loan Act) which 
has issued stock in connection with a qualified stock issuance pursuant 
to section 10(q) of such Act, except that this paragraph (i) shall apply 
only with regard to service by a single management official of such 
savings association or holding company, or any subsidiary of such 
savings association or holding company, by a single management official 
of the savings and loan holding company which purchased the stock issued 
in connection with such qualified stock issuance, and shall apply only 
when the Board has determined that such service is consistent with the 
purposes of the Interlocks Act and the Home Owners' Loan Act.



Sec. 238.95  Small market share exemption.

    (a) Exemption. A management interlock that is prohibited by Sec. 
238.93 is permissible, if:
    (1) The interlock is not prohibited by Sec. 238.93(c); and
    (2) The depository organizations (and their depository institution 
affiliates) hold, in the aggregate, no more than 20 percent of the 
deposits in each RMSA or community in which both depository 
organizations (or their depository institution affiliates) have offices. 
The amount of deposits shall be determined by reference to the most 
recent annual Summary of Deposits published by the FDIC for the RMSA or 
community.
    (b) Confirmation and records. Each depository organization must 
maintain records sufficient to support its determination of eligibility 
for the exemption under paragraph (a) of this section, and must 
reconfirm that determination on an annual basis.



Sec. 238.96  General exemption.

    (a) Exemption. The Board may by agency order exempt an interlock 
from the prohibitions in Sec. 238.93 if the Board finds that the 
interlock would not result in a monopoly or substantial lessening of 
competition and would not present safety and soundness concerns. A 
depository organization may apply to the Board for an exemption.

[[Page 118]]

    (b) Presumptions. In reviewing an application for an exemption under 
this section, the Board will apply a rebuttable presumption that an 
interlock will not result in a monopoly or substantial lessening of 
competition if the depository organization seeking to add a management 
official:
    (1) Primarily serves low- and moderate-income areas;
    (2) Is controlled or managed by persons who are members of a 
minority group, or women;
    (3) Is a depository institution that has been chartered for less 
than two years; or
    (4) Is deemed to be in ``troubled condition'' as defined in Sec. 
238.72.
    (c) Duration. Unless a shorter expiration period is provided in the 
Board approval, an exemption permitted by paragraph (a) of this section 
may continue so long as it does not result in a monopoly or substantial 
lessening of competition, or is unsafe or unsound. If the Board grants 
an interlock exemption in reliance upon a presumption under paragraph 
(b) of this section, the interlock may continue for three years, unless 
otherwise provided by the Board in writing.



Sec. 238.97  Change in circumstances.

    (a) Termination. A management official shall terminate his or her 
service or apply for an exemption if a change in circumstances causes 
the service to become prohibited. A change in circumstances may include 
an increase in asset size of an organization, a change in the 
delineation of the RMSA or community, the establishment of an office, an 
increase in the aggregate deposits of the depository organization, or an 
acquisition, merger, consolidation, or 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 depository organization 
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. 238.98  Enforcement.

    Except as provided in this section, the Board administers and 
enforces the Interlocks Act with respect to savings and loan holding 
companies and its affiliates, 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 savings and loan 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. 238.99  Interlocking relationships permitted pursuant to Federal
Deposit Insurance Act.

    A management official or prospective management official of a 
depository organization may enter into an otherwise prohibited 
interlocking relationship with another depository organization for a 
period of up to 10 years if such relationship is approved by the Federal 
Deposit Insurance Corporation pursuant to section 13(k)(1)(A)(v) of the 
Federal Deposit Insurance Act, as amended (12 U.S.C. 1823(k)(1)(A)(v)).



         Subpart K_Dividends by Subsidiary Savings Associations



Sec. 238.101  Authority and purpose.

    This subpart implements section 10(f) of HOLA which requires savings 
associations with holding companies to provide the Board not less than 
30 days' notice of a proposed declaration of a dividend. This subpart 
applies to all declarations of dividends by a subsidiary savings 
association of a savings and loan holding company.



Sec. 238.102  Definitions.

    The following definitions apply to this subpart:
    (a) Appropriate Federal banking agency has the same meaning as in 12 
U.S.C. 1813(q) and includes, with respect to agreements entered into and 
conditions imposed prior to July 21, 2011, the Office of Thrift 
Supervision.
    (b) Dividend means:

[[Page 119]]

    (1) A distribution of cash or other property to owners of a savings 
association made on account of their ownership, but not any dividend 
consisting only of shares or rights to purchase shares; or
    (2) Any transaction that the Board determines, by order or 
regulation, to be in substance a dividend.
    (c) Shares means common and preferred stock, and any options, 
warrants, or other rights for the acquisition of such stock. The term 
``share'' also includes convertible securities upon their conversion 
into common or preferred stock. The term does not include convertible 
debt securities prior to their conversion into common or preferred stock 
or other securities that are not equity securities at the time of a 
dividend.



Sec. 238.103  Filing requirement.

    (a) Filing. A subsidiary savings association of a savings and loan 
holding company must file a notice with the appropriate Reserve Bank on 
the designated form at least 30 days before the proposed declaration of 
a dividend by its board of directors.
    (b) Schedules. A notice may include a schedule proposing dividends 
over a specified period, not to exceed 12 months.



Sec. 238.104  Board action and criteria for review.

    (a) Board action. (1) A subsidiary savings association of a savings 
and loan holding company may declare a proposed dividend after the end 
of a 30-day review period commencing on the date of submission to the 
Federal Reserve System of the complete record on the notice, unless the 
Board or Reserve Bank disapproves the notice before the end of the 
period.
    (2) A subsidiary savings association of a savings and loan holding 
company may declare a proposed dividend before the end of the 30-day 
period if the Board or Reserve Bank notifies the applicant in writing of 
the Board's or Reserve Bank's intention not to disapprove the notice.
    (b) Criteria. The Board or Reserve Bank may disapprove a notice, in 
whole or in part, if the Board or Reserve Bank makes any of the 
following determinations.
    (1) Following the dividend the subsidiary savings association will 
be undercapitalized, significantly undercapitalized, or critically 
undercapitalized as set forth in applicable regulations under 12 U.S.C. 
1831o.
    (2) The proposed dividend raises safety or soundness concerns.
    (3) The proposed dividend violates a prohibition contained in any 
statute, regulation, enforcement action, or agreement between the 
subsidiary savings association or any savings and loan holding company 
of which it is a subsidiary and an appropriate Federal banking agency, a 
condition imposed on the subsidiary savings association or any savings 
and loan holding company of which it is a subsidiary in an application 
or notice approved by an appropriate Federal banking agency, or any 
formal or informal enforcement action involving the subsidiary savings 
association or any savings and loan holding company of which it is a 
subsidiary. If so, the Board will determine whether it may permit the 
dividend notwithstanding the prohibition, condition, or enforcement 
action.



 Subpart L_Investigative Proceedings and Formal Examination Proceedings



Sec. 238.111  Scope.

    This part prescribes rules of practice and procedure applicable to 
the conduct of investigative proceedings under section 10(g)(2) of the 
Home Owners' Loan Act, as amended, 12 U.S.C. 1467a(g)(2) (``HOLA'') and 
to the conduct of formal examination proceedings with respect to savings 
and loan holding companies and their affiliates under section 5(d)(1)(B) 
of the HOLA, as amended, 12 U.S.C. 1464(d)(1)(B) or section 7(j)(15) of 
the Federal Deposit Insurance Act, as amended, 12 U.S.C. 1817(j)(15) 
(``FDIA''), section 8(n) of the FDIA, 12 U.S.C. 1818(n), or section 
10(c) of the FDIA, 12 U.S.C. 1820(c). This part does not apply to 
adjudicatory proceedings as to which hearings are required by statute, 
the rules for which are contained in part 262 of this chapter.

[[Page 120]]



Sec. 238.112  Definitions.

    As used in this part:
    (a) Investigative proceeding means an investigation conducted under 
section 10(g)(2) of the HOLA;
    (b) Formal examination proceeding means the administration of oaths 
and affirmations, taking and preserving of testimony, requiring the 
production of books, papers, correspondence, memoranda, and all other 
records, the issuance of subpoenas, and all related activities in 
connection with examination of savings and loan holding companies and 
their affiliates conducted pursuant to section 5(d)(1)(B) of the HOLA, 
section 7(j)(15) of the FDIA, section 8(n) of the FDIA or section 10(c) 
of the FDIA; and
    (c) Designated representative means the person or persons empowered 
by the Board to conduct an investigative proceeding or a formal 
examination proceeding.



Sec. 238.113  Confidentiality of proceedings.

    All formal examination proceedings shall be private and, unless 
otherwise ordered by the Board, all investigative proceedings shall also 
be private. Unless otherwise ordered or permitted by the Board, or 
required by law, and except as provided in Sec. Sec. 238.114 and 
238.115, the entire record of any investigative proceeding or formal 
examination proceeding, including the resolution of the Board or its 
delegate(s) authorizing the proceeding, the transcript of such 
proceeding, and all documents and information obtained by the designated 
representative(s) during the course of said proceedings shall be 
confidential.



Sec. 238.114  Transcripts.

    Transcripts or other recordings, if any, of investigative 
proceedings or formal examination proceedings shall be prepared solely 
by an official reporter or by any other person or means authorized by 
the designated representative. A person who has submitted documentary 
evidence or given testimony in an investigative proceeding or formal 
examination proceeding may procure a copy of his own documentary 
evidence or transcript of his own testimony upon payment of the cost 
thereof; provided, that a person seeking a transcript of his own 
testimony must file a written request with the Board stating the reason 
he desires to procure such transcript, and the Board may for good cause 
deny such request. In any event, any witness (or his counsel) shall have 
the right to inspect the transcript of the witness' own testimony.



Sec. 238.115  Rights of witnesses.

    (a) Any person who is compelled or requested to furnish documentary 
evidence or give testimony at an investigative proceeding or formal 
examination proceeding shall have the right to examine, upon request, 
the Board resolution authorizing such proceeding. Copies of such 
resolution shall be furnished, for their retention, to such persons only 
with the written approval of the Board.
    (b) Any witness at an investigative proceeding or formal examination 
proceeding may be accompanied and advised by an attorney personally 
representing that witness.
    (1) Such attorney shall be a member in good standing of the bar of 
the highest court of any state, Commonwealth, possession, territory, or 
the District of Columbia, who has not been suspended or debarred from 
practice by the bar of any such political entity or before the Board in 
accordance with the provisions of part 263 of this chapter and has not 
been excluded from the particular investigative proceeding or formal 
examination proceeding in accordance with paragraph (b)(3) of this 
section.
    (2) Such attorney may advise the witness before, during, and after 
the taking of his testimony and may briefly question the witness, on the 
record, at the conclusion of his testimony, for the sole purpose of 
clarifying any of the answers the witness has given. During the taking 
of the testimony of a witness, such attorney may make summary notes 
solely for his use in representing his client. All witnesses shall be 
sequestered, and, unless permitted in the discretion of the designated 
representative, no witness or accompanying attorney may be permitted to 
be present during the taking of testimony of any other witness called in 
such proceeding. Neither attorney(s)

[[Page 121]]

for the association(s) that are the subjects of the investigative 
proceedings or formal examination proceedings, nor attorneys for any 
other interested persons, shall have any right to be present during the 
testimony of any witness not personally being represented by such 
attorney.
    (3) The Board, for good cause, may exclude a particular attorney 
from further participation in any investigation in which the Board has 
found the attorney to have engaged in dilatory, obstructionist, 
egregious, contemptuous or contumacious conduct. The person conducting 
an investigation may report to the Board instances of apparently 
dilatory, obstructionist, egregious, contemptuous or contumacious 
conduct on the part of an attorney. After due notice to the attorney, 
the Board may take such action as the circumstances warrant based upon a 
written record evidencing the conduct of the attorney in that 
investigation or such other or additional written or oral presentation 
as the Board may permit or direct.



Sec. 238.116  Obstruction of proceedings.

    The designated representative shall report to the Board any 
instances where any witness or counsel has engaged in dilatory, 
obstructionist, or contumacious conduct or has otherwise violated any 
provision of this part during the course of an investigative proceeding 
or formal examination proceeding; and the Board may take such action as 
the circumstances warrant, including the exclusion of counsel from 
further participation in such proceeding.



Sec. 238.117  Subpoenas.

    (a) Service. Service of a subpoena in connection with any 
investigative proceeding or formal examination proceeding shall be 
effected in the following manner:
    (1) Service upon a natural person. Service of a subpoena upon a 
natural person may be effected by handing it to such person; by leaving 
it at his office with the person in charge thereof, or, if there is no 
one in charge, by leaving it in a conspicuous place therein; by leaving 
it at his dwelling place or usual place of abode with some person of 
suitable age and discretion then residing therein; by mailing it to him 
by registered or certified mail or by an express delivery service at his 
last known address; or by any method whereby actual notice is given to 
him.
    (2) Service upon other persons. When the person to be served is not 
a natural person, service of the subpoena may be effected by handing the 
subpoena to a registered agent for service, or to any officer, director, 
or agent in charge of any office of such person; by mailing it to any 
such representative by registered or certified mail or by an express 
delivery service at his last known address; or by any method whereby 
actual notice is given to such person.
    (b) Motions to quash. Any person to whom a subpoena is directed may, 
prior to the time specified therein for compliance, but in no event more 
than 10 days after the date of service of such subpoena, apply to the 
Board or its designee to quash or modify such subpoena, accompanying 
such application with a statement of the reasons therefore. The Board or 
its designee, as appropriate, may:
    (1) Deny the application;
    (2) Quash or revoke the subpoena;
    (3) Modify the subpoena; or
    (4) Condition the granting of the application on such terms as the 
Board or its designee determines to be just, reasonable, and proper.
    (c) Attendance of witnesses. Subpoenas issued in connection with an 
investigative proceeding or formal examination proceeding may require 
the attendance and/or testimony of witnesses from any State or territory 
of the United States and the production by such witnesses of documentary 
or other tangible evidence at any designated place where the proceeding 
is being (or is to be) conducted. Foreign nationals are subject to such 
subpoenas if such service is made upon a duly authorized agent located 
in the United States.
    (d) Witness fees and mileage. Witnesses summoned in any proceeding 
under this part shall be paid the same fees and mileage that are paid 
witnesses in the district courts of the United States. Such fees and 
mileage need not be tendered when the subpoena is issued on behalf of 
the Board by any of its designated representatives.

[[Page 122]]



PART 239_MUTUAL HOLDING COMPANIES (REGULATION MM)--
Table of Contents



                      Subpart A_General Provisions

Sec.
239.1 Authority, purpose, and scope.
239.2 Definitions.

                   Subpart B_Mutual Holding Companies

239.3 Mutual holding company reorganizations.
239.4 Grounds for disapproval of reorganizations.
239.5 Membership rights.
239.6 Contents of Reorganization Plans.
239.7 Acquisition and disposition of savings associations, savings and 
          loan holding companies, and other corporations by mutual 
          holding companies.
239.8 Operating restrictions.
239.9 Conversion or liquidation of mutual holding companies.
239.10 Procedural requirements.
239.11 Subsidiary holding companies.
239.12 Communication between members of a mutual holding company.
239.13 Charters.
239.14 Charter amendments.
239.15 Bylaws.
239.16 Voluntary dissolution.

                 Subpart C_Subsidiary Holding Companies

239.20 Scope.
239.21 Charters.
239.22 Charter amendments.
239.23 Bylaws.
239.24 Issuances of stock by subsidiary holding companies of mutual 
          holding companies.
239.25 Contents of Stock Issuance Plans.
239.26 Shareholders.
239.27 Board of directors.
239.28 Officers.
239.29 Certificates for shares and their transfer.
239.30 Annual reports; books and records.
239.31 Indemnification; employment contracts.

             Subpart D_Indemnification; Employment Contracts

239.40 Indemnification of directors, officers and employees.
239.41 Employment contracts.

             Subpart E_Conversions from Mutual to Stock Form

239.50 Purpose and scope.
239.51 Acquiring another insured stock depository institution as part of 
          a conversion.
239.52 Definitions.
239.53 Prior to conversion.
239.54 Plan of conversion.
239.55 Filing requirements.
239.56 Vote by members.
239.57 Proxy solicitation.
239.58 Offering circular.
239.59 Offers and sales of stock.
239.60 Completion of the offering.
239.61 Completion of the conversion.
239.62 Liquidation accounts.
239.63 Post-conversion.
239.64 Contributions to charitable organizations.
239.65 Voluntary supervisory conversions.
239.66 Board review of the voluntary supervisory conversion application.

Appendix A to Part 239--Mutual Holding Company Model Charter
Appendix B to Part 239--Subsidiary Holding Company of a Mutual Holding 
          Company Model Charter
Appendix C to Part 239--Mutual Holding Company Model Bylaws
Appendix D to Part 239--Subsidiary Holding Company of a Mutual Holding 
          Company Model Bylaws

    Authority: 12 U.S.C. 1462, 1462a, 1464, 1467a, 1828, and 2901.

    Source: Regulation MM, 76 FR 56357, Sept. 13, 2011, unless otherwise 
noted.



                      Subpart A_General Provisions



Sec. 239.1  Authority, purpose, and scope.

    (a) Authority. This part is issued by the Board of Governors of the 
Federal Reserve System (``Board'') under section 10(g) and (o) of the 
Home Owners' Loan Act (``HOLA'').
    (b) Purpose. The principal purposes of this part are to:
    (1) Regulate the reorganization of mutual savings associations to 
mutual holding companies and the creation of subsidiary holding 
companies of mutual holding companies;
    (2) Define and regulate the operations of mutual holding companies 
and subsidiary holding companies of mutual holding companies; and
    (3) Set forth the procedures for securing approval for these 
transactions.
    (c) Scope. Except as the Board may otherwise determine, the 
reorganization of mutual savings associations into mutual holding 
companies, any related stock issuances by subsidiary holding companies, 
and the conversion of mutual holding companies into stock form are 
exclusively governed by

[[Page 123]]

the provisions of this part, and no mutual savings association shall 
reorganize to a mutual holding company, no subsidiary holding company of 
a mutual holding company shall issue minority stock, and no mutual 
holding company shall convert into stock form without the prior written 
approval of the Board. The Board may grant a waiver in writing from any 
requirement of this part for good cause shown.



Sec. 239.2  Definitions.

    As used in this part and in the forms under this part, the following 
definitions apply, unless the context otherwise requires:
    (a) Acquiree association means any savings association, other than a 
resulting association, that:
    (1) Is acquired by a mutual holding company as part of, and 
concurrently with, a mutual holding company reorganization; and
    (2) Is in the mutual form immediately prior to such acquisition.
    (b) Acting in concert has the same meaning as in Sec. 238.31(b) of 
this chapter.
    (c) Affiliate has the same meaning as in Sec. 238.2(a) of this 
chapter.
    (d) Associate of a person is:
    (1) A corporation or organization (other than the mutual holding 
company, subsidiary holding company, or any majority-owned subsidiaries 
of such holding companies), if the person is a senior officer or 
partner, or beneficially owns, directly or indirectly, 10 percent or 
more of any class of equity securities of the corporation or 
organization.
    (2) A trust or other estate, if the person has a substantial 
beneficial interest in the trust or estate or is a trustee or fiduciary 
of the trust or estate. For purposes of Sec. Sec. 239.59(k), 239.59(m), 
239.59(n), 239.59(o), 239.59(p), 239.63(b), a person who has a 
substantial beneficial interest in the mutual holding company or 
subsidiary holding company's tax-qualified or non-tax-qualified employee 
stock benefit plan, or who is a trustee or a fiduciary of the plan, is 
not an associate of the plan. For the purposes of Sec. 239.59(k), the 
mutual holding company or subsidiary holding company's tax-qualified 
employee stock benefit plan is not an associate of a person.
    (3) Any natural person who is related by blood or marriage to such 
person and:
    (i) Who lives in the same home as the person; or
    (ii) Who is a director or senior officer of the mutual holding 
company, subsidiary holding company, or other subsidiary.
    (e) Company means any corporation, partnership, trust, association, 
joint venture, pool, syndicate, unincorporated organization, joint-stock 
company or similar organization, as defined in paragraph (u) of this 
section; but a company does not include:
    (1) The Federal Deposit Insurance Corporation, the Resolution Trust 
Corporation, or any Federal Home Loan Bank, or
    (2) Any company the majority of shares of which is owned by:
    (i) The United States or any State,
    (ii) An officer of the United States or any State in his or her 
official capacity, or
    (iii) An instrumentality of the United States or any State.
    (f) Control has the same meaning as in Sec. 238.2(e) of this 
chapter.
    (g) Default means any adjudication or other official determination 
of a court of competent jurisdiction or other public authority pursuant 
to which a conservator, receiver, or other legal custodian is appointed 
for a mutual holding company or subsidiary savings association of a 
mutual holding company.
    (h) Demand accounts mean non-interest-bearing demand deposits that 
are subject to check or to withdrawal or transfer on negotiable or 
transferable order to the savings association and that are permitted to 
be issued by statute, regulation, or otherwise and are payable on 
demand.
    (i) Insider means any officer or director of a company or of any 
affiliate of such company, and any person acting in concert with any 
such officer or director.
    (j) Member means any depositor or borrower of a mutual savings 
association that is entitled, under the charter of the savings 
association, to vote on matters affecting the association, and any 
depositor or borrower of a subsidiary savings association of a mutual 
holding company that is entitled,

[[Page 124]]

under the charter of the mutual holding company, to vote on matters 
affecting the mutual holding company.
    (k) Mutual holding company means a holding company organized in 
mutual form under this part, and unless otherwise indicated, a 
subsidiary holding company controlled by a mutual holding company, 
organized under this part.
    (l) Parent means any company which directly or indirectly controls 
any other company or companies.
    (m) Person includes an individual, bank, corporation, partnership, 
trust, association, joint venture, pool, syndicate, sole proprietorship, 
unincorporated organization, or any other form of entity.
    (n) Reorganization Notice means a notice of a proposed mutual 
holding company reorganization that is in the form and contains the 
information required by the Board.
    (o) Reorganization Plan means a plan to reorganize into the mutual 
holding company format containing the information required by Sec. 
239.6.
    (p) Reorganizing association means a mutual savings association that 
proposes to reorganize to become a mutual holding company pursuant to 
this part.
    (q) Resulting association means a savings association in the stock 
form that is organized as a subsidiary of a reorganizing association to 
receive the substantial part of the assets and liabilities (including 
all deposit accounts) of the reorganizing association upon consummation 
of the reorganization.
    (r) Savings account means any withdrawable account, except a demand 
account, a tax and loan account, a note account, a United States 
Treasury general account, or a United States Treasury time deposit-open 
account.
    (s) Savings Association has the same meaning as in Sec. 238.2(l) of 
this chapter.
    (t) Savings and loan holding company has the same meaning as 
specified in section 10(a)(1) of the HOLA and Sec. 238.2(m) of this 
chapter.
    (u) Similar organization for purposes of paragraph (e) of this 
section means a combination of parties with the potential for or 
practical likelihood of continuing rather than temporary existence, 
where the parties thereto have knowingly and voluntarily associated for 
a common purpose pursuant to identifiable and binding relationships 
which govern the parties with respect to either:
    (1) The transferability and voting of any stock or other indicia of 
participation in another entity, or
    (2) Achievement of a common or shared objective, such as to 
collectively manage or control another entity.
    (v) Stock means common or preferred stock, or any other type of 
equity security, including (without limitation) warrants or options to 
acquire common or preferred stock, or other securities that are 
convertible into common or preferred stock.
    (w) Stock Issuance Plan means a plan, submitted pursuant to Sec. 
239.24 and containing the information required by Sec. 239.25, 
providing for the issuance of stock by a subsidiary holding company.
    (x) Subsidiary means any company which is owned or controlled 
directly or indirectly by a person, and includes any service corporation 
owned in whole or in part by a savings association, or a subsidiary of 
such service corporation.
    (y) Subsidiary holding company means a federally chartered stock 
holding company controlled by a mutual holding company that owns the 
stock of a savings association whose depositors have membership rights 
in the parent mutual holding company.
    (z) Tax and loan account means an account, the balance of which is 
subject to the right of immediate withdrawal, established for receipt of 
payments of Federal taxes and certain United States obligations. Such 
accounts are not savings accounts or savings deposits.
    (aa) Tax-qualified employee stock benefit plan means any defined 
benefit plan or defined contribution plan, such as an employee stock 
ownership plan, stock bonus plan, profit-sharing plan, or other plan, 
and a related trust, that is qualified under sec. 401 of the Internal 
Revenue Code (26 U.S.C. 401).
    (bb) United States Treasury General Account means an account 
maintained in the name of the United States Treasury the balance of 
which is subject to the right of immediate withdrawal, except in the 
case of the closure of the

[[Page 125]]

member, and in which a zero balance may be maintained. Such accounts are 
not savings accounts or savings deposits.
    (cc) United States Treasury Time Deposit Open Account means a non-
interest-bearing account maintained in the name of the United States 
Treasury which may not be withdrawn prior to the expiration of 30 days' 
written notice from the United States Treasury, or such other period of 
notice as the Treasury may require. Such accounts are not savings 
accounts or savings deposits.



                   Subpart B_Mutual Holding Companies



Sec. 239.3  Mutual holding company reorganizations.

    (a) A mutual savings association may not reorganize to become a 
mutual holding company, or join in a mutual holding company 
reorganization as an acquiree association, unless it satisfies the 
following conditions:
    (1) A Reorganization Plan is approved by a majority of the board of 
directors of the reorganizing association and any acquiree association;
    (2) A Reorganization Notice is filed with the Board pursuant to 
Sec. 238.14 of this chapter;
    (3) The Reorganization Plan is submitted to the members of the 
reorganizing association and any acquiree association pursuant and is 
approved by a majority of the total votes of the members of each 
association eligible to be cast at a meeting held at the call of each 
association's directors in accordance with the procedures prescribed by 
each association's charter and bylaws; and
    (4) All necessary regulatory approvals have been obtained and all 
conditions imposed by the Board have been satisfied.
    (b) Upon receipt of an application under this section, the Reserve 
Bank will promptly furnish notice and a copy of the Reorganization Plan 
to the primary federal supervisor of any savings association involved in 
the transaction. The primary supervisor will have 30 calendar days from 
the date of the letter giving notice in which to submit its views and 
recommendations to the Board.



Sec. 239.4  Grounds for disapproval of reorganizations.

    (a) Basic standards. The Board may disapprove a proposed mutual 
holding company reorganization filed pursuant to Sec. 239.3(a) if:
    (1) Disapproval is necessary to prevent unsafe or unsound practices;
    (2) The financial or managerial resources of the reorganizing 
association or any acquiree association warrant disapproval;
    (3) The proposed capitalization of the mutual holding company fails 
to meet the requirements of paragraph (b) of this section;
    (4) A stock issuance is proposed in connection with the 
reorganization pursuant to Sec. 239.24 that fails to meet the standards 
established by that section;
    (5) The reorganizing association or any acquiree association fails 
to furnish the information required to be included in the Reorganization 
Notice or any other information requested by the Board in connection 
with the proposed reorganization; or
    (6) The proposed reorganization would violate any provision of law, 
including (without limitation) Sec. 239.3(a) and (c) (regarding board 
of directors and membership approval) or Sec. 239.5(a) (regarding 
continuity of membership rights).
    (b) Capitalization. (1) The Board shall disapprove a proposal by a 
reorganizing association or any acquiree association to capitalize a 
mutual holding company in an amount in excess of a nominal amount if 
immediately following the reorganization, the resulting association or 
the acquiree association would fail to be ``adequately capitalized'' 
under the regulatory capital requirements applicable to the savings 
association.
    (2) Proposals by reorganizing associations and acquiree associations 
to capitalize mutual holding companies shall also comply with any 
applicable statutes, and with regulations or written policies of the 
Comptroller of the Currency or the Federal Deposit Insurance 
Corporation, as applicable, governing

[[Page 126]]

capital distributions by savings associations in effect at the time of 
the reorganization.
    (c) Presumptive disqualifiers--(1) Managerial resources. The factors 
specified in Sec. 238.15(d)(1)(i) through (vi) of this chapter shall 
give rise to a rebuttable presumption that the managerial resources test 
of paragraph (a)(2) of this section is not met. For this purpose, each 
place the term acquiror appears in Sec. 238.15(d)(1)(i) through (vi) of 
this chapter, it shall be read to mean the reorganizing association or 
any acquiree association, and the reference in Sec. 238.15(d)(1)(v) of 
this chapter to filings under this part shall be deemed to include 
filings under either part 238 of this chapter or this part.
    (2) Safety and soundness and financial resources. Failure by a 
reorganizing association and any acquiree association to submit a 
business plan in connection with a Reorganization Notice, or submission 
of a business plan that projects activities that are inconsistent with 
the credit and lending needs of the reorganizing association or acquiree 
association's proposed market area or that fails to demonstrate that the 
capital of the mutual holding company will be deployed in a safe and 
sound manner, shall give rise to a rebuttable presumption that the 
safety and soundness and financial resources tests of paragraphs (a)(1) 
and (a)(2) of this section are not met.
    (d) Failure of the Board to act on a Reorganization Notice within 
the prescribed time period. A proposed reorganization that obtains 
regulatory clearance from the Board due to the operation of Sec. 238.14 
of this chapter may take place in the manner proposed, subject to the 
following conditions:
    (1) The reorganization shall be consummated within one year of the 
date of the expiration of the Board's review period under Sec. 238.14 
of this chapter;
    (2) The mutual holding company shall not be capitalized in an amount 
in excess of what is permissible under Sec. 239.4(b);
    (3) No request for regulatory waivers or forbearances shall be 
deemed granted;
    (4) The following information shall be submitted within the 
specified time frames:
    (i) On the business day prior to the date of the reorganization, the 
chief financial officers of the reorganizing association and any 
acquiree association shall certify to the Board in writing that no 
material adverse events or material adverse changes have occurred with 
respect to the financial condition or operations of their respective 
associations since the date of the financial statements submitted with 
the Reorganization Notice;
    (ii) No later than thirty days after the reorganization, the mutual 
holding company shall file with the Board a certification by legal 
counsel stating the effective date of the reorganization, the exact 
number of shares of stock of the resulting association and any acquiree 
association acquired by the mutual holding company and by any other 
persons, and that the reorganization has been consummated in accordance 
with Sec. 239.3 and all other applicable laws and regulations and the 
Reorganization Notice;
    (iii) No later than thirty days after the reorganization, the mutual 
holding company shall file with the Board an opinion from its 
independent auditors certifying that the reorganization was consummated 
in accordance with generally accepted accounting principles; and
    (iv) No later than thirty days after the reorganization, the mutual 
holding company shall file with the Board a certification stating that 
the mutual holding company will not deviate materially, or cause its 
subsidiary savings associations to deviate materially, from the business 
plan submitted in connection with the Reorganization Notice, unless 
prior written approval from the Board is obtained.



Sec. 239.5  Membership rights.

    (a) Depositors and borrowers of resulting associations, acquiree 
associations, and associations in mutual form when acquired. The charter 
of a mutual holding company must:
    (1) Confer upon existing and future depositors of the resulting 
association the same membership rights in the mutual holding company as 
were conferred upon depositors by the charter

[[Page 127]]

of the reorganizing association as in effect immediately prior to the 
reorganization;
    (2) Confer upon existing and future depositors of any acquiree 
association or any association that is in the mutual form when acquired 
by the mutual holding company the same membership rights in the mutual 
holding company as were conferred upon depositors by the charter of the 
acquired association immediately prior to acquisition, provided that if 
the acquired association is merged into another association from which 
the mutual holding company draws members, the depositors of the acquired 
association shall receive the same membership rights as the depositors 
of the association into which the acquired association is merged;
    (3) Confer upon the borrowers of the resulting association who are 
borrowers at the time of reorganization the same membership rights in 
the mutual holding company as were conferred upon them by the charter of 
the reorganizing association immediately prior to reorganization, but 
shall not confer any membership rights in connection with any borrowings 
made after the reorganization; and
    (4) Confer upon the borrowers of any acquiree association or any 
association that is in the mutual form when acquired by the mutual 
holding company who are borrowers at the time of the acquisition the 
same membership rights in the mutual holding company as were conferred 
upon them by the charter of the acquired association immediately prior 
to acquisition, but shall not confer any membership rights in connection 
with any borrowings made after the acquisition, provided that if the 
acquired association is merged into another association from which the 
mutual holding company draws members, the borrowers of the acquired 
association shall instead receive the same grandfathered membership 
rights as the borrowers of the association into which the acquired 
association is merged received at the time that association became a 
subsidiary of the mutual holding company.
    (b) Depositors and borrowers of associations in the stock form when 
acquired. A mutual holding company that acquires a savings association 
in the stock form, other than a resulting association or an acquiree 
association, shall not confer any membership rights upon the depositors 
and borrowers of such association, unless such association is merged 
into an association from which the mutual holding company draws members, 
in which case the depositors of the stock association shall receive the 
same membership rights as other depositors of the association into which 
the stock association is merged.



Sec. 239.6  Contents of Reorganization Plans.

    Each Reorganization Plan shall contain a complete description of all 
significant terms of the proposed reorganization, shall attach and 
incorporate any Stock Issuance Plan proposed in connection with the 
Reorganization Plan, and shall:
    (a) Provide for amendment of the charter and bylaws of the 
reorganizing association to read in the form of the charter and bylaws 
of a mutual holding company, and attach and incorporate such charter and 
bylaws;
    (b) Provide for the organization of the resulting association, which 
shall be an interim federal or state subsidiary savings association of 
the reorganizing association, and attach and incorporate the proposed 
charter and bylaws of such association;
    (c) If the reorganizing association proposes to form a subsidiary 
holding company, provide for the organization of a subsidiary holding 
company and attach and incorporate the proposed charter and bylaws of 
such subsidiary holding company.
    (d) Provide for amendment of the charter and bylaws of any acquiree 
association to read in the form of the charter and bylaws of a state or 
federal savings association in the stock form, and attach and 
incorporate such charter and bylaws;
    (e) Provide that, upon consummation of the reorganization, 
substantially all of the assets and liabilities (including all savings 
accounts, demand accounts, tax and loan accounts, United States Treasury 
General Accounts, or United States Treasury Time Deposit Open Accounts, 
as those terms are defined in

[[Page 128]]

this part) of the reorganizing association shall be transferred to the 
resulting association, which shall thereupon become an operating 
subsidiary savings association of the mutual holding company;
    (f) Provide that all assets, rights, obligations, and liabilities of 
whatever nature of the reorganizing association that are not expressly 
retained by the mutual holding company shall be deemed transferred to 
the resulting association;
    (g) Provide that each depositor in the reorganizing association or 
any acquiree association immediately prior to the reorganization shall 
upon consummation of the reorganization receive, without payment, an 
identical account in the resulting association or the acquiree 
association, as the case may be (Appropriate modifications should be 
made to this provision if savings associations are being merged as a 
part of the reorganization);
    (h) Provide that the Reorganization Plan as adopted by the boards of 
directors of the reorganizing association and any acquiree association 
may be substantively amended by those boards of directors as a result of 
comments from regulatory authorities or otherwise prior to the 
solicitation of proxies from the members of the reorganizing association 
and any acquiree association to vote on the Reorganization Plan and at 
any time thereafter with the concurrence of the Board; and that the 
reorganization may be terminated by the board of directors of the 
reorganizing association or any acquiree association at any time prior 
to the meeting of the members of the association called to consider the 
Reorganization Plan and at any time thereafter with the concurrence of 
the Board;
    (i) Provide that the Reorganization Plan shall be terminated if not 
completed within a specified period of time (The time period shall not 
be more than 24 months from the date upon which the members of the 
reorganizing association or the date upon which the members of any 
acquiree association, whichever is earlier, approve the Reorganization 
Plan and may not be extended by the reorganizing or acquiree 
association); and
    (j) Provide that the expenses incurred in connection with the 
reorganization shall be reasonable.



Sec. 239.7  Acquisition and disposition of savings associations,
savings and loan holding companies, and other corporations by mutual

holding companies.

    (a) Acquisitions--(1) Stock savings associations. A mutual holding 
company may not acquire control of a savings association that is in the 
stock form unless the necessary approvals are obtained from the Board, 
including approval pursuant to Sec. 238.11 of this chapter.
    (2) Mutual savings associations. A mutual holding company may not 
acquire a savings association in the mutual form by merger of such 
association into any subsidiary savings association of such holding 
company from which the parent mutual holding company draws members or 
into an interim subsidiary savings association of the mutual holding 
company, unless:
    (i) The proposed acquisition is approved by a majority of the board 
of directors of the mutual association;
    (ii) The proposed acquisition is submitted to the mutual 
association's members and is approved by a majority of the total votes 
of the association's members eligible to be cast at a meeting held at 
the call of the association's directors in accordance with the 
procedures prescribed by the association's charter and bylaws;
    (iii) The necessary approvals are obtained from the Board, including 
approval pursuant to Sec. 238.11 of this chapter, and any other 
approvals required to form an interim association, to amend the charter 
and bylaws of the association being acquired, and/or to amend the 
charter and bylaws of the mutual holding company consistent with Sec. 
239.6(a); and
    (iv) The approval of the members of the mutual holding company is 
obtained, if the Board advises the mutual holding company in writing 
that such approval will be required.
    (3) Mutual holding companies. A mutual holding company that is not a 
subsidiary holding company may not acquire control of another mutual 
holding company, including a subsidiary holding company, by merging with 
or

[[Page 129]]

into such company, unless the necessary approvals are obtained from the 
Board, including approval pursuant to Sec. 238.11 of this chapter. The 
approval of the members of the mutual holding companies shall also be 
obtained if the Board advises the mutual holding companies in writing 
that such approval will be required.
    (4) Stock holding companies. A mutual holding company may not 
acquire control of a savings and loan holding company in the stock form 
that is not a subsidiary holding company, unless the necessary approvals 
are obtained from the Board, including approval pursuant to Sec. 238.11 
of this chapter. The acquired holding company may be held as a 
subsidiary of the mutual holding company or merged into the mutual 
holding company.
    (5) Non-controlling acquisitions of savings association stock. A 
mutual holding company may acquire non-controlling amounts of the stock 
of savings associations and savings and loan holding companies subject 
to the restrictions imposed by 12 U.S.C. 1467a(e) and (q) and Sec. Sec. 
238.41 and 238.11 of this chapter.
    (6) Other corporations. A mutual holding company may not acquire 
control of, or make non-controlling investments in the stock of, any 
corporation other than a savings association or savings and loan holding 
company unless:
    (i)(A) Such corporation is engaged exclusively in activities that 
are permissible for mutual holding companies pursuant to Sec. 239.8(a); 
or
    (B) It is lawful for the stock of such corporation to be purchased 
by a federal savings association under the applicable regulations of the 
Comptroller of the Currency or by a state savings association under the 
applicable regulations of the Federal Deposit Insurance Corporation and 
the laws of any state where any subsidiary savings association of the 
mutual holding company has its home office; and
    (ii) Such corporation is not controlled, directly or indirectly, by 
a subsidiary savings association of the mutual holding company.
    (b) Dispositions. (1) A mutual holding company shall provide written 
notice to the appropriate Reserve Bank at least 30 days prior to the 
effective date of any direct or indirect transfer of any of the stock 
that it holds in a subsidiary holding company, a resulting association, 
an acquiree association, or any subsidiary savings association that was 
in the mutual form when acquired by the mutual holding company, 
including stock transferred in connection with a pledge pursuant to 
Sec. 239.8(b) or any transfer of all or a substantial portion of the 
assets or liabilities of any such subsidiary holding company or 
association. Any such disposition shall comply with the requirements of 
this part, as appropriate, and with any other applicable statute or 
regulation.
    (2) A mutual holding company may, subject to applicable laws and 
regulations, transfer any or all of the stock or cause or permit the 
transfer of any or all of the assets and liabilities of:
    (i) Any subsidiary savings association that was in the stock form 
when acquired, provided such association is not a resulting association 
or an acquiree association;
    (ii) Any subsidiary holding company acquired pursuant to paragraph 
(a)(4) of this section; or
    (iii) Any corporation other than a savings association or savings 
and loan holding company.
    (3) A mutual holding company may, subject to applicable laws and 
regulations, transfer any stock acquired pursuant to paragraph (a)(5) of 
this section.
    (4) No transfer authorized by this section may be made to any 
insider of the mutual holding company, any associate of an insider of 
the mutual holding company, or any tax-qualified or non-tax-qualified 
employee stock benefit plan of the mutual holding company unless the 
mutual holding company provides notice to the appropriate Reserve Bank 
at least 30 days prior to the effective date of the proposed transfer. 
This notice shall be in addition to any other application or notice 
required under applicable laws or regulations, including those imposed 
by this part or Regulation LL.



Sec. 239.8  Operating restrictions.

    (a) Activities restrictions. A mutual holding company may engage in 
any business activity specified in 12 U.S.C. 1467a(c)(2) or 
(c)(9)(A)(ii). In addition,

[[Page 130]]

the business activities of subsidiaries of mutual holding companies may 
include the activities specified in Sec. 239.7(a)(6). A mutual holding 
company or its subsidiaries may engage in the foregoing activities only 
upon compliance with the procedures specified in Sec. Sec. 238.53(c) or 
238.54(b) of this chapter.
    (b) Pledging stock. (1) No mutual holding company may pledge the 
stock of its resulting association, an acquiree association, or any 
subsidiary savings association that was in the mutual form when acquired 
by the mutual holding company (or its parent mutual holding company), 
unless the proceeds of the loan secured by the pledge are infused into 
the association whose stock is pledged. No mutual holding company may 
pledge the stock of its subsidiary holding company unless the proceeds 
of the loan secured by the pledge are infused into any subsidiary 
savings association of the subsidiary holding company that is a 
resulting association, an acquiree association, or a subsidiary savings 
association that was in the mutual form when acquired by the subsidiary 
holding company (or its parent mutual holding company). In the event the 
subsidiary holding company has more than one subsidiary savings 
association, the loan proceeds shall, unless otherwise approved by the 
Board, be infused in equal amounts to each subsidiary savings 
association. Any amount of the stock of such association or subsidiary 
holding company may be pledged for these purposes. Nothing in this 
paragraph shall be deemed to prohibit:
    (i) The payment of dividends from a subsidiary savings association 
to its mutual holding company parent to the extent otherwise 
permissible; or
    (ii) The payment of dividends from a subsidiary holding company to 
its mutual holding company parent to the extent otherwise permissible; 
or
    (iii) A mutual holding company from pledging the stock of more than 
one subsidiary savings association provided that the stock pledged of 
each such subsidiary association is proportionate to the proceeds of the 
loan infused into each subsidiary association.
    (2) Any mutual holding company that fails to make any payment on a 
loan secured by the pledge of stock pursuant to paragraph (b)(1) of this 
section on or before the date on which such payment is due shall, on the 
first day after such payment is due, provide written notice of 
nonpayment to the appropriate Reserve Bank.
    (c) Restrictions on stock repurchases. (1) No subsidiary holding 
company that has any stockholders other than its parent mutual holding 
company may repurchase any share of stock within one year of its date of 
issuance (which may include the time period the shares issued by the 
savings association were outstanding if the subsidiary holding company 
was formed after the initial issuance by the savings association), 
unless the repurchase:
    (i) Is in compliance with the requirements set forth in Sec. 
239.63;
    (ii) Is part of a general repurchase made on a pro rata basis 
pursuant to an offer approved by the Board and made to all stockholders 
of the association or subsidiary holding company (except that the parent 
mutual holding company may be excluded from the repurchase with the 
Board's approval);
    (iii) Is limited to the repurchase of qualifying shares of a 
director; or
    (iv) Is purchased in the open market by a tax-qualified or non-tax-
qualified employee stock benefit plan of the savings association (or of 
a subsidiary holding company) in an amount reasonable and appropriate to 
fund such plan.
    (2) No mutual holding company may purchase shares of its subsidiary 
savings association or subsidiary holding company within one year after 
a stock issuance, except if the purchase complies with Sec. 239.63. For 
purposes of this section, the reference in Sec. 239.63 to five percent 
refers to minority shareholders.
    (d) Restrictions on waiver of dividends. (1) A mutual holding 
company may waive the right to receive any dividend declared by a 
subsidiary of the mutual holding company, if--
    (i) No insider of the mutual holding company, associate of an 
insider, or tax-qualified or non-tax-qualified employee stock benefit 
plan of the mutual holding company holds any share of the stock in the 
class of stock to which the waiver would apply; or

[[Page 131]]

    (ii) The mutual holding company gives written notice to the Board of 
the intent of the mutual holding company to waive the right to receive 
dividends, not later than 30 days before the date of the proposed date 
of payment of the dividend, and the Board does not object to the waiver.
    (2) A notice of a waiver under paragraph (d)(1)(ii) of this section 
shall include a copy of the resolution of the board of directors of the 
mutual holding company together with any supporting materials relied 
upon by the board of directors of the mutual holding company, concluding 
that the proposed dividend waiver is consistent with the fiduciary 
duties of the board of directors to the mutual members of the mutual 
holding company. The resolution shall include:
    (i) A description of the conflict of interest that exists because of 
a mutual holding company director's ownership of stock in the subsidiary 
declaring dividends and any actions the mutual holding company and board 
of directors have taken to eliminate the conflict of interest, such as 
waiver by the directors of their right to receive dividends;
    (ii) A finding by the mutual holding company's board of directors 
that the waiver of dividends is consistent with the board of directors' 
fiduciary duties despite any conflict of interest;
    (iii) If the mutual holding company has pledged the stock of a 
subsidiary holding company or subsidiary savings association as 
collateral for a loan made to the mutual holding company, or is subject 
to any other loan agreement, an affirmation that the mutual holding 
company is able to meet the terms of the loan agreement; and
    (iv) An affirmation that a majority of the mutual members of the 
mutual holding company eligible to vote have, within the 12 months prior 
to the declaration date of the dividend by the subsidiary of the mutual 
holding company, approved a waiver of dividends by the mutual holding 
company, and any proxy statement used in connection with the member vote 
contained--
    (A) A detailed description of the proposed waiver of dividends by 
the mutual holding company and the reasons the board of directors 
requested the waiver of dividends;
    (B) The disclosure of any mutual holding company director's 
ownership of stock in the subsidiary declaring dividends and any actions 
the mutual holding company and board of directors have taken to 
eliminate the conflict of interest, such as the directors waiving their 
right to receive dividends; and
    (C) A provision providing that the proxy concerning the waiver of 
dividends given by the mutual members may be used for no more than 12 
months from the date it is given.
    (3) The Board may not object to a waiver of dividends under 
paragraph (d)(1)(ii) of this section if:
    (i) The waiver would not be detrimental to the safe and sound 
operation of the savings association;
    (ii) The board of directors of the mutual holding company expressly 
determines that a waiver of the dividend by the mutual holding company 
is consistent with the fiduciary duties of the board of directors to the 
mutual members of the mutual holding company; and
    (iii) The mutual holding company has, prior to December 1, 2009--
    (A) Reorganized into a mutual holding company under section 10(o) of 
HOLA;
    (B) Issued minority stock either from its mid-tier stock holding 
company or its subsidiary stock savings association; and
    (C) Waived dividends it had a right to receive from the subsidiary 
stock savings association.
    (4) For a mutual holding company that does not meet each of the 
conditions in paragraph (d)(3) of this section, the Board will not 
object to a waiver of dividends under paragraph (d)(1)(ii) of this 
section if--:
    (i) The savings association currently operates in a manner 
consistent with the safe and sound operation of a savings association, 
and the waiver is not detrimental to the safe and sound operation of the 
savings association;
    (ii) If the mutual holding company has pledged the stock of a 
subsidiary holding company or subsidiary savings association as 
collateral for a loan made to the mutual holding company, or is subject 
to any other loan agreement, an affirmation that the mutual

[[Page 132]]

holding company is able to meet the terms of the loan agreement;
    (iii) Within the 12 months prior to the declaration date of the 
dividend by the subsidiary of the mutual holding company, a majority of 
the mutual members of the mutual holding company has approved the waiver 
of dividends by the mutual holding company. Any proxy statement used in 
connection with the member vote must contain--
    (A) A detailed description of the proposed waiver of dividends by 
the mutual holding company and the reasons the board of directors 
requested the waiver of dividends;
    (B) The disclosure of any mutual holding company director's 
ownership of stock in the subsidiary declaring dividends and any actions 
the mutual holding company and board of directors have taken to 
eliminate the conflict of interest, such as the directors waiving their 
right to receive dividends; and
    (C) A provision providing that the proxy concerning the waiver of 
dividends given by the mutual members may be used for no more than 12 
months from the date it is given;
    (iv) The board of directors of the mutual holding company expressly 
determines that the waiver of dividends is consistent with the board of 
directors' fiduciary duties despite any conflict of interest;
    (v)(A) A majority of the entire board of directors of the mutual 
holding company approves the waiver of dividends and any director with 
direct or indirect ownership, control, or the power to vote shares of 
the subsidiary declaring the dividend, or who otherwise directly or 
indirectly benefits through an associate from the waiver of dividends, 
has abstained from the board vote; or
    (B) Each officer or director of the mutual holding company or its 
affiliates, associate of such officer or director, and any tax-qualified 
or non-tax-qualified employee stock benefit plan in which such officer 
or director participates that holds any share of the stock in the class 
of stock to which the waiver would apply waives the right to receive any 
dividend declared by a subsidiary of the mutual holding company;
    (vi) The Board does not object to the amount of dividends declared 
by a subsidiary of the mutual holding company. In reviewing whether a 
declaration by a subsidiary of the mutual holding company is 
appropriate, the Board may consider, among other factors, the 
reasonableness of the entire dividend distribution declared if the 
waiver is not approved;
    (vii) The waived dividends are excluded from the capital accounts of 
the subsidiary holding company or savings association, as applicable, 
for purposes of calculating any future dividend payments;
    (viii) The mutual holding company appropriately accounts for all 
waived dividends in a manner that permits the Board to consider the 
waived dividends in evaluating the proposed exchange ratio in the event 
of a full conversion of the mutual holding company to stock form; and
    (ix) The mutual holding company complies with such other conditions 
as the Board may require to prevent conflicts of interest or actions 
detrimental to the safe and sound operation of the savings association.
    (5) Valuation. (i) The Board will consider waived dividends in 
determining an appropriate exchange ratio in the event of a full 
conversion to stock form.
    (ii) In the case of a savings association that has reorganized into 
a mutual holding company, has issued minority stock from a mid-tier 
stock holding company or a subsidiary stock savings association of the 
mutual holding company, and has waived dividends it had a right to 
receive from a subsidiary savings association before December 1, 2009, 
the Board shall not consider waived dividends in determining an 
appropriate exchange ratio in the event of a full conversion to stock 
form.
    (e) Restrictions on issuance of stock to insiders. A subsidiary of a 
mutual holding company that is not a savings association or subsidiary 
holding company may issue stock to any insider, associate of an insider 
or tax-qualified or non-tax-qualified employee stock benefit plan of the 
mutual holding company or any subsidiary of the mutual holding company, 
provided that such persons or plans provide written notice to the 
appropriate Reserve Bank at

[[Page 133]]

least 30 days prior to the stock issuance, and the Reserve Bank or the 
Board does not object to the subsequent stock issuance. Subsidiary 
holding companies may issue stock to such persons only in accordance 
with Sec. 239.24.
    (f) Applicability of rules governing savings and loan holding 
companies. Except as expressly provided in this part, mutual holding 
companies shall be subject to the provisions of 12 U.S.C. 1467a and 3201 
et seq. and the provisions of parts 207, 228, and 238 of this chapter.
    (g) Separate vote for charitable organization contribution. In a 
mutual holding company stock issuance, a separate vote of a majority of 
the outstanding shares of common stock held by stockholders other than 
the mutual holding company or subsidiary holding company must approve 
any charitable organization contribution.



Sec. 239.9  Conversion or liquidation of mutual holding companies.

    (a) Conversion--(1) Generally. A mutual holding company may convert 
to the stock form in accordance with the rules and regulations set forth 
in subpart E of this part.
    (2) Exchange of subsidiary savings association or subsidiary holding 
company stock. Any stock issued by a subsidiary savings association, or 
by a subsidiary holding company pursuant to Sec. 239.24, of a mutual 
holding company to persons other than the parent mutual holding company 
may be exchanged for the stock issued by the successor to parent mutual 
holding company in connection with the conversion of the parent mutual 
holding company to stock form. The parent mutual holding company and the 
subsidiary holding company must demonstrate to the satisfaction of the 
Board that the basis for the exchange is fair and reasonable.
    (3) If a subsidiary holding company or subsidiary savings 
association has issued shares to an entity other than the mutual holding 
company, the conversion of the mutual holding company to stock form may 
not be consummated unless a majority of the shares issued to entities 
other than the mutual holding company vote in favor of the conversion. 
This requirement applies in addition to any otherwise required account 
holder or shareholder votes.
    (b) Involuntary liquidation. (1) The Board may file a petition with 
the federal bankruptcy courts requesting the liquidation of a mutual 
holding company pursuant to 12 U.S.C. 1467a(o)(9) and title 11, United 
States Code, upon the occurrence of any of the following events:
    (i) The default of the resulting association, any acquiree 
association, or any subsidiary savings association of the mutual holding 
company that was in the mutual form when acquired by the mutual holding 
company;
    (ii) The default of the parent mutual holding company or its 
subsidiary holding company; or
    (iii) Foreclosure on any pledge by the mutual holding company of 
subsidiary savings association stock or subsidiary holding company 
stock.
    (2) Except as provided in paragraph (b)(3) of this section, the net 
proceeds of any liquidation of any mutual holding company shall be 
transferred to the members of the mutual holding company and, if 
applicable, the stock holders of the subsidiary holding company in 
accordance with the charter of the mutual holding company and, if 
applicable, the charter of the subsidiary holding company.
    (3) If the FDIC incurs a loss as a result of the default of any 
subsidiary savings association of a mutual holding company and that 
mutual holding company is liquidated pursuant to paragraph (b)(1) of 
this section, the FDIC shall succeed to the membership interests of the 
depositors of such savings association in the mutual holding company to 
the extent of the FDIC's loss.
    (c) Voluntary liquidation. The provisions of Sec. 239.16 shall 
apply to mutual holding companies.



Sec. 239.10  Procedural requirements.

    (a) Proxies and proxy statements--(1) Solicitation of proxies. The 
provisions of Sec. Sec. 239.56 and 239.57(a) through (d) and (f) 
through (h) shall apply to all solicitations of proxies by any person in 
connection with any membership vote required by this part. Proxy 
materials must be in the form specified by the Board and contain the 
information

[[Page 134]]

specified in Sec. Sec. 239.57(b) and 239.57(d), to the extent such 
information is relevant to the action that members are being asked to 
approve, with such additions, deletions, and other modifications as are 
required under this part, or as are necessary or appropriate under the 
disclosure standard set forth in Sec. 239.57(f). File proxies and proxy 
statements in accordance with Sec. 239.55(c) and address them to the 
appropriate Reserve Bank. For purposes of this paragraph, the term 
conversion, as it appears in the provisions of part subpart E of this 
part, refers to the reorganization, the stock issuance, or other 
corporate action, as appropriate.
    (2) Additional proxy disclosure requirements. In addition to the 
requirements in paragraph (a) of this section, all proxies requesting 
accountholder approval of a mutual holding company reorganization shall 
address in detail:
    (i) The reasons for the reorganization, including the relative 
advantages and disadvantages of undertaking the transaction proposed 
instead of a standard conversion;
    (ii) Whether management believes the reorganization is in the best 
interests of the association and its accountholders and the basis of 
that belief;
    (iii) The fiduciary duties owed to accountholders by the 
association's officers and directors and why the reorganization is in 
accord with those duties and is otherwise equitable to the 
accountholders and the association;
    (iv) Any compensation agreements that will be entered into by 
management in connection with the reorganization; and
    (v) Whether the mutual holding company intends to waive dividends, 
the implications to accountholders, and the reasons such waivers are 
consistent with the fiduciary duties of the directors of the mutual 
holding company.
    (3) Nonconforming minority stock issuances. Subsidiary holding 
companies proposing non-conforming minority stock issuances pursuant to 
Sec. 239.24(c)(6)(ii) must include in the proxy materials to 
accountholders seeking approval of a proposed reorganization an 
additional disclosure statement that serves as a cover sheet that 
clearly addresses:
    (i) The consequences to accountholders of voting to approve a 
reorganization in which their subscription rights are prioritized 
differently and potentially eliminated; and
    (ii) Any intent by the mutual holding company to waive dividends, 
and the implications to accountholders.
    (4) Use of ``running'' proxies. Unless otherwise prohibited, a 
mutual holding company may make use of any proxy conferring general 
authority to vote on any and all matters at any meeting of members, 
provided that the member granting such proxy has been furnished a proxy 
statement regarding the matters and the member does not grant a later-
dated proxy to vote at the meeting at which the matter will be 
considered or attend such meeting and vote in person, and further 
provided that ``running'' proxies or similar proxies may not be used to 
vote for a mutual holding company reorganization, mutual-to-stock 
conversion undertaken by a mutual holding company, dividend waiver, or 
any other material transaction. Subject to the limitations set forth in 
this paragraph, any proxy conferring on the board of directors or 
officers of a mutual savings association general authority to cast a 
member's votes on any and all matters presented to the members shall be 
deemed to cover the member's votes as a member of the mutual holding 
company and such authority shall be conferred on the board of directors 
or officers of a mutual holding company.
    (b) Applications under this part. Except as provided in paragraph 
(c) of this section, any application, notice or certification required 
to be filed with the Board under this part must be filed in accordance 
with Sec. 238.14 of this chapter. The Board will review any filing made 
under this part in accordance with Sec. 238.14 of this chapter.
    (c) Reorganization Notices and stock issuance applications--(1) 
Contents. Each Reorganization Notice submitted to the appropriate 
Reserve Bank pursuant to Sec. 239.3(a) and each application for 
approval of the issuance of stock submitted to the appropriate Reserve 
Bank pursuant to Sec. 239.24(a) shall be in the form and contain the 
information specified by the Board.

[[Page 135]]

    (2) Filing instructions. Any Reorganization Notice submitted under 
Sec. 239.3(a) must be filed in accordance with Sec. 238.14 of this 
chapter. Any stock issuance application submitted pursuant to Sec. 
239.24(a) shall be filed in accordance with Sec. 239.55.
    (3) Public notice, public comment, and meetings. Mutual holding 
company reorganizations are subject to applicable public notice, public 
comment, and meeting requirements under the Bank Merger Act regulations 
at Sec. 238.11(e) of this chapter and the Savings and Loan Holding 
Company Act regulations at Sec. 238.14 of this chapter.
    (d) Amendments. Any mutual holding company may amend any notice or 
application submitted pursuant to this part or file additional 
information with respect thereto upon request of the Board or upon the 
mutual holding company's own initiative.
    (e) Time-frames. All Reorganization Notices and applications filed 
pursuant to this part must be processed in accordance with the 
processing procedures at Sec. 238.14 of this chapter. Any related 
approvals requested in connection with Reorganization Notices or 
applications for approval of stock issuances (including, without 
limitation, requests for approval to transfer assets to resulting 
associations, to acquire acquiree associations, and to organize 
resulting associations or interim associations, and requests for 
approval of charters, bylaws, and stock forms) shall be processed 
pursuant to the procedures specified in this section in conjunction with 
the Reorganization Notice or stock issuance application to which they 
pertain, rather than pursuant to any inconsistent procedures specified 
elsewhere in this chapter. The approval standards for all such related 
applications, however, shall remain unchanged. The review by the Board 
of any materials used in connection with the issuance of stock under 
Sec. 239.24 must not be subject to the applications processing time-
frames set forth in Sec. Sec. 238.14(f) and (g) of this chapter.
    (f) Disclosure. The rules governing disclosure of any notice or 
application submitted pursuant to this part, or any public comment 
submitted pursuant to paragraph (c) of this section, shall be the same 
as set forth in Sec. 238.14(b) of this chapter for notices, 
applications, and public comments filed under Sec. 238.14 of this 
chapter.
    (g) Appeals. Any party aggrieved by a final action by the Board 
which approves or disapproves any application or notice pursuant to this 
part may obtain review of such action in accordance with 12 U.S.C. 
1467a(j).
    (h) Federal preemption. This part preempts state law with regard to 
the creation and regulation of mutual holding companies.



Sec. 239.11  Subsidiary holding companies.

    (a) Subsidiary holding companies. A mutual holding company may 
establish a subsidiary holding company as a direct subsidiary to hold 
100 percent of the stock of its subsidiary savings association. The 
formation and operation of the subsidiary holding company may not be 
utilized as a means to evade or frustrate the purposes of this part. The 
subsidiary holding company may be established either at the time of the 
initial mutual holding company reorganization or at a subsequent date, 
subject to the approval of the Board.
    (b) Stock issuances. Sec. Sec. 239.24 and 239.25 apply to issuance 
of stock by a subsidiary holding company. In the case of a stock 
issuance by a subsidiary holding company, the aggregate amount of 
outstanding common stock of the association owned or controlled by 
persons other than the subsidiary holding company's mutual holding 
company parent at the close of the proposed issuance shall be less than 
50 percent of the subsidiary holding company's total outstanding common 
stock.
    (c) Charters and bylaws for subsidiary holding companies. The 
charter and bylaws of a subsidiary holding company shall be in the form 
set forth in appendices B and D, respectively.



Sec. 239.12  Communication between members of a mutual holding company.

    (a) Right of communication with other members. A member of a mutual 
holding company has the right to communicate, as prescribed in paragraph 
(b) of this section, with other members of the mutual holding company 
regarding any matter related to the mutual holding company's affairs, 
except for ``improper'' communications, as defined in

[[Page 136]]

paragraph (c) of this section. The mutual holding company may not defeat 
that right by redeeming a savings member's savings account in the 
subsidiary savings association.
    (b) Member communication procedures. If a member of a mutual holding 
company desires to communicate with other members, the following 
procedures shall be followed:
    (1) The member shall give the mutual holding company a written 
request to communicate;
    (2) If the proposed communication is in connection with a meeting of 
the mutual holding company's members, the request shall be given at 
least thirty days before the annual meeting or 10 days before a special 
meeting;
    (3) The request shall contain--
    (i) The member's full name and address;
    (ii) The nature and extent of the member's interest in the mutual 
holding company at the time the information is given;
    (iii) A copy of the proposed communication; and
    (iv) If the communication is in connection with a meeting of the 
members, the date of the meeting;
    (4) The mutual holding company shall reply to the request within 
either--
    (i) Fourteen days;
    (ii) Ten days, if the communication is in connection with the annual 
meeting; or
    (iii) Three days, if the communication is in connection with a 
special meeting;
    (5) The reply shall provide either--
    (i) The number of the mutual holding company's members and the 
estimated reasonable cost to the mutual holding company of mailing to 
them the proposed communication; or
    (ii) Notification that the mutual holding company has determined not 
to mail the communication because it is ``improper'', as defined in 
paragraph (c) of this section;
    (6) After receiving the amount of the estimated costs of mailing and 
sufficient copies of the communication, the mutual holding company shall 
mail the communication to all members, by a class of mail specified by 
the requesting member, either--
    (i) Within fourteen days;
    (ii) Within seven days, if the communication is in connection with 
the annual meeting;
    (iii) As soon as practicable before the meeting, if the 
communication is in connection with a special meeting; or
    (iv) On a later date specified by the member;
    (7) If the mutual holding company refuses to mail the proposed 
communication, it shall return the requesting member's materials 
together with a written statement of the specific reasons for refusal, 
and shall simultaneously send to the appropriate Reserve Bank a copy of 
each of the requesting member's materials, the mutual holding company's 
written statement, and any other relevant material. The materials shall 
be sent within:
    (i) Fourteen days,
    (ii) Ten days if the communication is in connection with the annual 
meeting, or
    (iii) Three days, if the communication is in connection with a 
special meeting, after the mutual holding company receives the request 
for communication.
    (c) Improper communication. A communication is an ``improper 
communication'' if it contains material which:
    (1) At the time and in the light of the circumstances under which it 
is made:
    (i) Is false or misleading with respect to any material fact; or
    (ii) Omits a material fact necessary to make the statements therein 
not false or misleading, or necessary to correct a statement in an 
earlier communication on the same subject which has become false or 
misleading;
    (2) Relates to a personal claim or a personal grievance, or is 
solicitous of personal gain or business advantage by or on behalf of any 
party;
    (3) Relates to any matter, including a general economic, political, 
racial, religious, social, or similar cause, that is not significantly 
related to the business of the mutual holding company or is not within 
the control of the mutual holding company; or
    (4) Directly or indirectly and without expressed factual foundation:
    (i) Impugns character, integrity, or personal reputation,

[[Page 137]]

    (ii) Makes charges concerning improper, illegal, or immoral conduct, 
or
    (iii) Makes statements impugning the stability and soundness of the 
mutual holding company.



Sec. 239.13  Charters.

    (a) Charters. The charter of a mutual holding company shall be in 
the form set forth in appendix A of this part and may be amended 
pursuant to this paragraph. The Board may amend the form of charter set 
forth in appendix A to this part.
    (b) Corporate title. The corporate title of each mutual holding 
company shall include the term ``mutual'' or the abbreviation ``M.H.C.''
    (c) Availability of charter. A mutual holding company shall make 
available to its members at all times in the offices of each subsidiary 
savings association from which the mutual holding company draws members 
a true copy of its charter, including any amendments, and shall deliver 
such a copy to any member upon request.



Sec. 239.14  Charter amendments.

    (a) General. In order to adopt a charter amendment, a mutual holding 
company must comply with the following requirements:
    (1) Board of directors approval. The board of directors of the 
mutual holding company must adopt a resolution proposing the charter 
amendment that states the text of such amendment;
    (2) Form of filing--(i) Application requirement. If the proposed 
charter amendment would render more difficult or discourage a merger, 
proxy contest, the assumption of control by a mutual account holder of 
the mutual holding company, or the removal of incumbent management; or 
involve a significant issue of law or policy; then, the mutual holding 
shall submit the charter amendment to the appropriate Reserve Bank for 
approval. Applications submitted under this paragraph are subject to the 
processing procedures at Sec. 238.14 of this chapter.
    (ii) Notice requirement. If the proposed charter amendment does not 
implicate paragraph (a)(2)(i) of this section and is permissible under 
all applicable laws, rules and regulations, the mutual holding company 
shall submit the proposed amendment to the appropriate Reserve Bank at 
least 30 days prior to the effective date of the proposed charter 
amendment.
    (b) Approval--Any charter amendment filed pursuant to paragraph 
(a)(2)(ii) of this section shall automatically be approved 30 days from 
the date of filing of such amendment with the appropriate Reserve Bank, 
provided that the mutual holding company follows the requirements of its 
charter in adopting such amendment, unless the Reserve Bank or the Board 
notifies the mutual holding company prior to the expiration of such 30-
day period that such amendment is rejected or is deemed to be filed 
under the provisions of paragraph (a)(2)(i) of this section. 
Notwithstanding anything in paragraph (a) of this section to the 
contrary, the following charter amendments, including the adoption of 
the Federal mutual holding company charter as set forth in appendix A, 
shall be effective and deemed approved at the time of adoption, if 
adopted without change and filed with Board, within 30 days after 
adoption, provided the mutual holding company follows the requirements 
of its charter in adopting such amendments.
    (1) Title change. (i) Subject to Sec. 239.13 and this paragraph 
(b), a mutual holding company may amend its charter by substituting a 
new corporate title in section 1 of its charter.
    (ii) Prior to changing its corporate title, a mutual holding company 
must file with the Board a written notice indicating the intended 
change. The Board shall provide to the mutual holding company a timely 
written acknowledgment stating when the notice was received. If, within 
30 days of receipt of notice, the Board does not notify the mutual 
holding company of its objection to the corporate title change on the 
grounds that the title misrepresents the nature of the institution or 
the services it offers, the mutual holding company may change its title 
by amending its charter in accordance with Sec. 239.14(b) or Sec. 
239.22 and the amendment provisions of its charter.
    (2) Maximum number of votes. A mutual holding company may amend 
section 5 of its charter by substituting the

[[Page 138]]

maximum number of votes per member to any number from 1 to 1000.
    (c) Reissuance of charter. A mutual holding company that has amended 
its charter may apply to have its charter, including the amendments, 
reissued by the Board. Such request for reissuance should be filed with 
the appropriate Reserve Bank.



Sec. 239.15  Bylaws.

    (a) General. A mutual holding company shall operate under bylaws 
that contain provisions that comply with all requirements specified by 
the Board, the provisions of this section, the mutual holding company's 
charter, and all other applicable laws, rules, and regulations provided 
that, a bylaw provision inconsistent with the provisions of this section 
may be adopted with the approval of the Board. Bylaws may be adopted, 
amended or repealed by a majority of the votes cast by the members at a 
legal meeting or a majority of the mutual holding company's board of 
directors. Throughout this section, the term ``trustee'' may be 
substituted for the term ``director'' as relevant.
    (b) The following requirements are applicable to mutual holding 
companies:
    (1) Annual meetings of members. A mutual holding company shall 
provide for and conduct an annual meeting of its members for the 
election of directors and at which any other business of the mutual 
holding company may be conducted. Such meeting shall be held, as 
designated by its board of directors, at a location within the state 
that constitutes the principal place of business of the subsidiary 
savings association, or at any other convenient place the board of 
directors may designate, and at a date and time within 150 days after 
the end of the mutual holding company's fiscal year. At each annual 
meeting, the officers shall make a full report of the financial 
condition of the mutual holding company and of its progress for the 
preceding year and shall outline a program for the succeeding year.
    (2) Special meetings of members. Procedures for calling any special 
meeting of the members and for conducting such a meeting shall be set 
forth in the bylaws. The subject matter of such special meeting must be 
established in the notice for such meeting. The board of directors of 
the mutual holding company or the holders of 10 percent or more of the 
voting capital shall be entitled to call a special meeting. For purposes 
of this section, ``voting capital'' means FDIC-insured deposits as of 
the voting record date.
    (3) Notice of meeting of members. Notice specifying the date, time, 
and place of the annual or any special meeting and adequately describing 
any business to be conducted shall be published for two successive weeks 
immediately prior to the week in which such meeting shall convene in a 
newspaper of general circulation in the city or county in which the 
principal place of business of the subsidiary savings association is 
located, or mailed postage prepaid at least 15 days and not more than 45 
days prior to the date on which such meeting shall convene to each of 
its members of record at the last address appearing on the books of the 
mutual holding company. A similar notice shall be posted in a 
conspicuous place in each of the offices of the subsidiary savings 
association during the 14 days immediately preceding the date on which 
such meeting shall convene. The bylaws may permit a member to waive in 
writing any right to receive personal delivery of the notice. When any 
meeting is adjourned for 30 days or more, notice of the adjournment and 
reconvening of the meeting shall be given as in the case of the original 
meeting.
    (4) Fixing of record date. For the purpose of determining members 
entitled to notice of or to vote at any meeting of members or any 
adjournment thereof, or in order to make a determination of members for 
any other proper purpose, the bylaws shall provide for the fixing of a 
record date and a method for determining from the books of the 
subsidiary savings association the members entitled to vote. Such date 
shall be not more than 60 days or fewer than 10 days prior to the date 
on which the action, requiring such determination of members, is to be 
taken. The same determination shall apply to any adjourned meeting.

[[Page 139]]

    (5) Member quorum. Any number of members present and voting, 
represented in person or by proxy, at a regular or special meeting of 
the members shall constitute a quorum. A majority of all votes cast at 
any meeting of the members shall determine any question, unless 
otherwise required by regulation. At any adjourned meeting, any business 
may be transacted that might have been transacted at the meeting as 
originally called. Members present at a duly constituted meeting may 
continue to transact business until adjournment.
    (6) Voting by proxy. Procedures shall be established for voting at 
any annual or special meeting of the members by proxy pursuant to the 
rules and regulations of the Board, including the placing of such 
proxies on file with the secretary of the mutual holding company, for 
verification, prior to the convening of such meeting. Proxies may be 
given telephonically or electronically as long as the holder uses a 
procedure for verifying the identity of the member. All proxies with a 
term greater than eleven months or solicited at the expense of the 
subsidiary savings association must run to the board of directors as a 
whole, or to a committee appointed by a majority of such board.
    (7) Communications between members. Provisions relating to 
communications between members shall be consistent with Sec. 239.12. No 
member, however, shall have the right to inspect or copy any portion of 
any books or records of a mutual holding company containing:
    (i) A list of depositors in or borrowers from the subsidiary savings 
association;
    (ii) Their addresses;
    (iii) Individual deposit or loan balances or records; or
    (iv) Any data from which such information could be reasonably 
constructed.
    (8) Number of directors, membership. The bylaws shall set forth a 
specific number of directors, not a range. The number of directors shall 
be not fewer than five nor more than fifteen, unless a higher or lower 
number has been authorized by the Board. Each director of the mutual 
holding company shall be a member of the mutual holding company. 
Directors may be elected for periods of one to three years and until 
their successors are elected and qualified, but if a staggered board is 
chosen, provision shall be made for the election of approximately one-
third or one-half of the board each year, as appropriate.
    (9) Meetings of the board. The board of directors shall determine 
the place, frequency, time, procedure for notice, which shall be at 
least 24 hours unless waived by the directors, and waiver of notice for 
all regular and special meetings. The meetings shall be under the 
direction of a chairman, appointed annually by the board; or in the 
absence of the chairman, the meetings shall be under the direction of 
the president. The board also may permit telephonic participation at 
meetings. The bylaws may provide for action to be taken without a 
meeting if unanimous written consent is obtained for such action. A 
majority of the authorized directors shall constitute a quorum for the 
transaction of business. The act of a majority of the directors present 
at any meeting at which there is a quorum shall be the act of the board.
    (10) Officers, employees, and agents. (i) The bylaws shall contain 
provisions regarding the officers of the mutual holding company, their 
functions, duties, and powers. The officers of the mutual holding 
company shall consist of a president, one or more vice presidents, a 
secretary, and a treasurer or comptroller, each of whom shall be elected 
annually by the board of directors. Such other officers and assistant 
officers and agents as may be deemed necessary may be elected or 
appointed by the board of directors or chosen in such other manner as 
may be prescribed in the bylaws. Any two or more offices may be held by 
the same person, except the offices of president and secretary.
    (ii) All officers and agents of the mutual holding company, as 
between themselves and the mutual holding company, shall have such 
authority and perform such duties in the management of the mutual 
holding company as may be provided in the bylaws, or as may be 
determined by resolution of the board of directors not inconsistent with 
the bylaws. In the absence of any such provision, officers shall have 
such powers and duties as generally pertain to their respective offices. 
Any officer

[[Page 140]]

may be removed by the board of directors with or without cause, but such 
removal, other than for cause, shall be without prejudice to the 
contractual rights, if any, of the officer so removed.
    (iii) Any indemnification provision must provide that any 
indemnification is subject to applicable Federal law, rules, and 
regulations.
    (11) Vacancies, resignation or removal of directors. Members of the 
mutual holding company shall elect directors by ballot: Provided, that 
in the event of a vacancy on the board, the board of directors may, by 
their affirmative vote, fill such vacancy, even if the remaining 
directors constitute less than a quorum. A director elected to fill a 
vacancy shall be elected to serve only until the next election of 
directors by the members. The bylaws shall set out the procedure for the 
resignation of a director, which shall be by written notice or by any 
other procedure established in the bylaws. Directors may be removed only 
for cause as defined in Sec. 239.41, by a vote of the holders of a 
majority of the shares then entitled to vote at an election of 
directors.
    (12) Powers of the board. The board of directors shall have the 
power:
    (i) By resolution, to appoint from among its members and remove an 
executive committee and one or more other committees, which committee[s] 
shall have and may exercise all the powers of the board between the 
meetings or the board; but no such committee shall have the authority of 
the board to amend the charter or bylaws, adopt a plan of merger, 
consolidation, dissolution, or provide for the disposition of all or 
substantially all the property and assets of the mutual holding company. 
Such committee shall not operate to relieve the board, or any member 
thereof, of any responsibility imposed by law;
    (ii) To fix the compensation of directors, officers, and employees; 
and to remove any officer or employee at any time with or without cause;
    (iii) To exercise any and all of the powers of the mutual holding 
company not expressly reserved by the charter to the members.
    (13) Nominations for directors. The bylaws shall provide that 
nominations for directors may be made at the annual meeting by any 
member and shall be voted upon, except, however, the bylaws may require 
that nominations by a member must be submitted to the secretary and then 
prominently posted in the principal place of business, at least 10 days 
prior to the date of the annual meeting. However, if such provision is 
made for prior submission of nominations by a member, then the bylaws 
must provide for a nominating committee, which, except in the case of a 
nominee substituted as a result of death or other incapacity, must 
submit nominations to the secretary and have such nominations similarly 
posted at least 15 days prior to the date of the annual meeting.
    (14) New business. The bylaws shall provide procedures for the 
introduction of new business at the annual meeting. Those provisions may 
require that such new business be stated in writing and filed with the 
secretary prior to the annual meeting at least 30 days prior to the date 
of the annual meeting.
    (15) Amendment. Bylaws may include any provision for their amendment 
that would be consistent with applicable law, rules, and regulations and 
adequately addresses its subject and purpose.
    (i) Amendments shall be effective:
    (A) After approval by a majority vote of the authorized board, or by 
a majority of the vote cast by the members of the mutual holding company 
at a legal meeting; and
    (B) After receipt of any applicable regulatory approval.
    (ii) When a mutual holding company fails to meet its quorum 
requirement, solely due to vacancies on the board, the bylaws may be 
amended by an affirmative vote of a majority of the sitting board.
    (16) Miscellaneous. The bylaws may also address the subject of age 
limitations for directors or officers as long as they are consistent 
with applicable Federal law, rules or regulations, and any other 
subjects necessary or appropriate for effective operation of the mutual 
holding company.
    (c) Form of filing--(1) Application requirement. (i) Any bylaw 
amendment shall be submitted to the appropriate Reserve Bank for 
approval if it would:

[[Page 141]]

    (A) Render more difficult or discourage a merger, proxy contest, the 
assumption of control by a mutual account holder of the mutual holding 
company, or the removal of incumbent management;
    (B) Involve a significant issue of law or policy, including 
indemnification, conflicts of interest, and limitations on director or 
officer liability; or
    (C) Be inconsistent with the requirements of this section or with 
applicable laws, rules, regulations, or the mutual holding company's 
charter.
    (ii) Applications submitted under paragraph (c)(1)(i) of this 
section are subject to the processing procedures at Sec. 238.14 of this 
chapter.
    (iii) For purposes of this paragraph (c), bylaw provisions that 
adopt the language of the model bylaws contained in appendix C to this 
part, if adopted without change, and filed with Board within 30 days 
after adoption, are effective upon adoption. The Board may amend the 
model bylaws provided in appendix C to this part.
    (2) Filing requirement. If the proposed bylaw amendment does not 
implicate paragraph (c)(1) or (c)(3) of this section, then the mutual 
holding company shall submit the amendment to the appropriate Reserve 
Bank at least 30 days prior to the date the bylaw amendment is to be 
adopted by the mutual holding company.
    (3) Corporate governance procedures. A mutual holding company may 
elect to follow the corporate governance procedures of the laws of the 
state where the main office of the institution is located, provided that 
such procedures may be elected only to the extent not inconsistent with 
applicable Federal statutes, regulations, and safety and soundness, and 
such procedures are not of the type described in paragraph (c)(1)(i) of 
this section. If this election is selected, a mutual holding company 
shall designate in its bylaws the provision or provisions from the body 
of law selected for its corporate governance procedures, and shall file 
a copy of such bylaws, which are effective upon adoption, within 30 days 
after adoption. The submission shall indicate, where not obvious, why 
the bylaw provisions do not require an application under paragraph 
(c)(1)(i) of this section.
    (d) Effectiveness. Any bylaw amendment filed pursuant to paragraph 
(c)(2) of this section shall automatically be effective 30 days from the 
date of filing of such amendment, provided that the mutual holding 
company follows the requirements of its charter and bylaws in adopting 
such amendment, unless the Board notifies the mutual holding company 
prior to the expiration of the 30-day period that such amendment is 
rejected or that such amendment requires an application to be filed 
pursuant to paragraph (c)(1) of this section.
    (e) Availability of bylaws. A mutual holding company shall make 
available to its members at all times in the offices of each subsidiary 
savings association from which the mutual holding company draws members 
a true copy of its bylaws, including any amendments, and shall deliver 
such a copy to any member upon request.



Sec. 239.16  Voluntary dissolution.

    (a) A mutual holding company's board of directors may propose a plan 
for dissolution of the mutual holding company. All references in this 
section to mutual holding company shall also apply to a subsidiary 
holding company organized under this part. The plan may provide for 
either:
    (1) Transfer of all the mutual holding company's assets to another 
mutual holding company or home-financing institutions under Federal 
charter either for cash sufficient to pay all obligations of the mutual 
holding company and retire all outstanding accounts or in exchange for 
that mutual holding company's payment of all the mutual holding 
company's outstanding obligations and issuance of share accounts or 
other evidence of interest to the mutual holding company's members on a 
pro rata basis; or
    (2) Dissolution in a manner proposed by the directors which they 
consider best for all concerned.
    (b) The plan, and a statement of reasons for proposing dissolution 
and for proposing the plan, shall be submitted to the appropriate 
Reserve Bank for approval. The Board will approve the plan if the Board 
believes dissolution is advisable and the plan is best for all

[[Page 142]]

concerned. If the Board considers the plan inadvisable, the Board may 
either make recommendations to the mutual holding company concerning the 
plan or disapprove it. When the plan is approved by the mutual holding 
company's board of directors and by the Board, it shall be submitted to 
the mutual holding company's members at a duly called meeting and, when 
approved by a majority of votes cast at that meeting, shall become 
effective. After dissolution in accordance with the plan, a certificate 
evidencing dissolution, supported by such evidence as the Board may 
require, shall immediately be filed with the Board. When the Board 
receives such evidence satisfactory to the Board, it will terminate the 
corporate existence of the dissolved mutual holding company and the 
mutual holding company's charter shall thereby be canceled.



                 Subpart C_Subsidiary Holding Companies



Sec. 239.20  Scope.

    This subpart applies only to a subsidiary holding company of a 
mutual holding company.



Sec. 239.21  Charters.

    (a) Charters. The charter of a subsidiary holding company of a 
mutual holding company shall be in the form set forth in appendix B of 
this part and may be amended pursuant to Sec. 239.22. The Board may 
amend the form of charter provided in appendix B.
    (b) Optional charter provision limiting minority stock ownership. 
(1) A subsidiary holding company that engages in its initial minority 
stock issuance after October 1, 2008 may, before it conducts its initial 
minority stock issuance, at the time it conducts its initial minority 
stock issuance, or, subject to the condition below, at any time during 
the five years following a minority stock issuance that such subsidiary 
holding company conducts in accordance with the purchase priorities set 
forth in subpart E of this part, include in its charter the provision 
set forth in paragraph (b)(2) of this section. For purposes of the 
charter provision set forth in paragraph (b)(2), the definitions set 
forth at Sec. 239.22(b)(8) apply. This charter provision expires a 
maximum of five years from the date of the minority stock issuance. The 
subsidiary holding company may adopt the charter provision set forth in 
paragraph (b)(2) of this section after a minority stock issuance only if 
it provided, in the offering materials related to its previous minority 
stock issuance or issuances, full disclosure of the possibility that the 
subsidiary holding company might adopt such a charter provision.
    (2) Beneficial ownership limitation. No person may directly or 
indirectly offer to acquire or acquire the beneficial ownership of more 
than 10 percent of the outstanding stock of any class of voting stock of 
the subsidiary holding company held by persons other than the subsidiary 
holding company's mutual holding company parent. This limitation expires 
on [insert date within five years of minority stock issuance] and does 
not apply to a transaction in which an underwriter purchases stock in 
connection with a public offering, or the purchase of stock by an 
employee stock ownership plan or other tax-qualified employee stock 
benefit plan which is exempt from the approval requirements under Sec. 
238.12(a)(7) of this chapter.
    (c) In the event a person acquires stock in violation of this 
section, all stock beneficially owned in excess of 10 percent shall be 
considered ``excess stock'' and shall not be counted as stock entitled 
to vote and shall not be voted by any person or counted as voting stock 
in connection with any matters submitted to the stockholders for a vote.



Sec. 239.22  Charter amendments.

    (a) General. In order to adopt a charter amendment, a subsidiary 
holding company must comply with the following requirements:
    (1) Board of directors approval. The board of directors of the 
subsidiary holding company must adopt a resolution proposing the charter 
amendment that states the text of such amendment.
    (2) Form of filing--(i) Application requirement. If the proposed 
charter amendment would render more difficult or discourage a merger, 
tender

[[Page 143]]

offer, or proxy contest, the assumption of control by a holder of a 
block of the subsidiary holding company's stock, the removal of 
incumbent management, or involve a significant issue of law or policy, 
the subsidiary holding company shall file the proposed amendment with 
and shall obtain the prior approval of the Board pursuant to Sec. 
238.14 of this chapter; and
    (ii) Notice requirement. If the proposed charter amendment does not 
implicate paragraph (a)(2)(i) of this section and such amendment is 
permissible under all applicable laws, rules or regulations, the 
subsidiary holding company shall submit the proposed amendments to the 
appropriate Reserve Bank, at least 30 days prior to the date the 
proposed charter amendment is to be mailed for consideration by the 
subsidiary holding company's shareholders.
    (b) Approval. Any charter amendment filed pursuant to paragraph 
(a)(2)(ii) of this section shall automatically be approved 30 days from 
the date of filing of such amendment, provided that the subsidiary 
holding company follows the requirements of its charter in adopting such 
amendment, unless the Board notifies the mutual holding company prior to 
the expiration of such 30-day period that such amendment is rejected or 
is deemed to be filed under the provisions of paragraph (a)(2)(i) of 
this section. In addition, the following charter amendments, including 
the adoption of the charter as set forth in Appendix B of this part, 
shall be approved at the time of adoption, if adopted without change and 
filed with the Board within 30 days after adoption, provided the 
subsidiary holding company follows the requirements of its charter in 
adopting such amendments.
    (1) Title change. Prior to changing its corporate title, a 
subsidiary holding company must file with the appropriate Reserve Bank a 
written notice indicating the intended change. The Reserve Bank shall 
provide to the subsidiary holding company a timely written 
acknowledgment stating when the notice was received. If, within 30 days 
of receipt of notice, the Reserve Bank or the Board does not notify the 
subsidiary holding company of its objection on the grounds that the 
title misrepresents the nature of the institution or the services it 
offers, the subsidiary holding company may change its title by amending 
section 1 of its charter in accordance with this section and the 
amendment provisions of its charter.
    (2) Home office. A subsidiary holding company may amend its charter 
by substituting a new domicile in section 2 of its charter.
    (3) Number of shares of stock and par value. A subsidiary holding 
company may amend Section 5 of its charter to change the number of 
authorized shares of stock, the number of shares within each class of 
stock, and the par or stated value of such shares.
    (4) Capital stock. A subsidiary holding company may amend its 
charter by revising Section 5 to read as follows:

    Section 5. Capital stock. The total number of shares of all classes 
of capital stock that the subsidiary holding company has the authority 
to issue is ------, of which ------ shall be common stock of par [or if 
no par value is specified the stated] value of ------ per share and of 
which [list the number of each class of preferred and the par or if no 
par value is specified the stated value per share of each such class]. 
The shares may be issued from time to time as authorized by the board of 
directors without further approval of shareholders, except as otherwise 
provided in this Section 5 or to the extent that such approval is 
required by governing law, rule, or regulation. The consideration for 
the issuance of the shares shall be paid in full before their issuance 
and shall not be less than the par [or stated] value. Neither promissory 
notes nor future services shall constitute payment or part payment for 
the issuance of shares of the subsidiary holding company. The 
consideration for the shares shall be cash, tangible or intangible 
property (to the extent direct investment in such property would be 
permitted), labor, or services actually performed for the subsidiary 
holding company, or any combination of the foregoing. In the absence of 
actual fraud in the transaction, the value of such property, labor, or 
services, as determined by the board of directors of the subsidiary 
holding company, shall be conclusive. Upon payment of such 
consideration, such shares shall be deemed to be fully paid and 
nonassessable. In the case of a stock dividend, that part of the 
retained earnings of the subsidiary holding company that is transferred 
to common stock or paid-in capital accounts upon the issuance of shares 
as a stock dividend shall be deemed to be the consideration for their 
issuance.

[[Page 144]]

    Except for shares issued in the initial organization of the 
subsidiary holding company, no shares of capital stock (including shares 
issuable upon conversion, exchange, or exercise of other securities) 
shall be issued, directly or indirectly, to officers, directors, or 
controlling persons of the association or subsidiary holding company 
other than as part of a general public offering or as qualifying shares 
to a director, unless their issuance or the plan under which they would 
be issued has been approved by a majority of the total votes eligible to 
be cast at a legal meeting.
    Nothing contained in this Section 5 (or in any supplementary 
sections hereto) shall entitle the holders of any class of a series of 
capital stock to vote as a separate class or series or to more than one 
vote per share, except as to the cumulation of votes for the election of 
directors, unless the charter otherwise provides that there shall be no 
such cumulative voting: Provided, That this restriction on voting 
separately by class or series shall not apply:
    (i) To any provision which would authorize the holders of preferred 
stock, voting as a class or series, to elect some members of the board 
of directors, less than a majority thereof, in the event of default in 
the payment of dividends on any class or series of preferred stock;
    (ii) To any provision that would require the holders of preferred 
stock, voting as a class or series, to approve the merger or 
consolidation of the subsidiary holding company with another corporation 
or the sale, lease, or conveyance (other than by mortgage or pledge) of 
properties or business in exchange for securities of a corporation other 
than the subsidiary holding company if the preferred stock is exchanged 
for securities of such other corporation: Provided, That no provision 
may require such approval for transactions undertaken with the 
assistance or pursuant to the direction of the Board or the Federal 
Deposit Insurance Corporation;
    (iii) To any amendment which would adversely change the specific 
terms of any class or series of capital stock as set forth in this 
Section 5 (or in any supplementary sections hereto), including any 
amendment which would create or enlarge any class or series ranking 
prior thereto in rights and preferences. An amendment which increases 
the number of authorized shares of any class or series of capital stock, 
or substitutes the surviving subsidiary holding company in a merger or 
consolidation for the subsidiary holding company, shall not be 
considered to be such an adverse change.
    A description of the different classes and series (if any) of the 
subsidiary holding company's capital stock and a statement of the 
designations, and the relative rights, preferences, and limitations of 
the shares of each class of and series (if any) of capital stock are as 
follows:
    A. Common stock. Except as provided in this Section 5 (or in any 
supplementary sections thereto) the holders of the common stock shall 
exclusively possess all voting power. Each holder of shares of the 
common stock shall be entitled to one vote for each share held by each 
holder, except as to the cumulation of votes for the election of 
directors, unless the charter otherwise provides that there shall be no 
such cumulative voting.
    Whenever there shall have been paid, or declared and set aside for 
payment, to the holders of the outstanding shares of any class of stock 
having preference over the common stock as to the payment of dividends, 
the full amount of dividends and of sinking fund, retirement fund, or 
other retirement payments, if any, to which such holders are 
respectively entitled in preference to the common stock, then dividends 
may be paid on the common stock and on any class or series of stock 
entitled to participate therewith as to dividends out of any assets 
legally available for the payment of dividends.
    In the event of any liquidation, dissolution, or winding up of the 
subsidiary holding company, the holders of the common stock (and the 
holders of any class or series of stock entitled to participate with the 
common stock in the distribution of assets) shall be entitled to 
receive, in cash or in kind, the assets of the subsidiary holding 
company available for distribution remaining after: (i) Payment or 
provision for payment of the subsidiary holding company's debts and 
liabilities; (ii) distributions or provision for distributions in 
settlement of its liquidation account; and (iii) distributions or 
provision for distributions to holders of any class or series of stock 
having preference over the common stock in the liquidation, dissolution, 
or winding up of the subsidiary holding company. Each share of common 
stock shall have the same relative rights as and be identical in all 
respects with all the other shares of common stock.
    B. Preferred stock. The subsidiary holding company may provide in 
supplementary sections to its charter for one or more classes of 
preferred stock, which shall be separately identified. The shares of any 
class may be divided into and issued in series, with each series 
separately designated so as to distinguish the shares thereof from the 
shares of all other series and classes. The terms of each series shall 
be set forth in a supplementary section to the charter. All shares of 
the same class shall be identical except as to the following relative 
rights and preferences, as to which there may be variations between 
different series:
    (a) The distinctive serial designation and the number of shares 
constituting such series;

[[Page 145]]

    (b) The dividend rate or the amount of dividends to be paid on the 
shares of such series, whether dividends shall be cumulative and, if so, 
from which date(s), the payment date(s) for dividends, and the 
participating or other special rights, if any, with respect to 
dividends;
    (c) The voting powers, full or limited, if any, of shares of such 
series;
    (d) Whether the shares of such series shall be redeemable and, if 
so, the price(s) at which, and the terms and conditions on which, such 
shares may be redeemed;
    (e) The amount(s) payable upon the shares of such series in the 
event of voluntary or involuntary liquidation, dissolution, or winding 
up of the subsidiary holding company;
    (f) Whether the shares of such series shall be entitled to the 
benefit of a sinking or retirement fund to be applied to the purchase or 
redemption of such shares, and if so entitled, the amount of such fund 
and the manner of its application, including the price(s) at which such 
shares may be redeemed or purchased through the application of such 
fund;
    (g) Whether the shares of such series shall be convertible into, or 
exchangeable for, shares of any other class or classes of stock of the 
subsidiary holding company and, if so, the conversion price(s) or the 
rate(s) of exchange, and the adjustments thereof, if any, at which such 
conversion or exchange may be made, and any other terms and conditions 
of such conversion or exchange.
    (h) The price or other consideration for which the shares of such 
series shall be issued; and
    (i) Whether the shares of such series which are redeemed or 
converted shall have the status of authorized but unissued shares of 
serial preferred stock and whether such shares may be reissued as shares 
of the same or any other series of serial preferred stock.
    Each share of each series of serial preferred stock shall have the 
same relative rights as and be identical in all respects with all the 
other shares of the same series.
    The board of directors shall have authority to divide, by the 
adoption of supplementary charter sections, any authorized class of 
preferred stock into series, and, within the limitations set forth in 
this section and the remainder of this charter, fix and determine the 
relative rights and preferences of the shares of any series so 
established.
    Prior to the issuance of any preferred shares of a series 
established by a supplementary charter section adopted by the board of 
directors, the subsidiary holding company shall file with the 
appropriate Reserve Bank a dated copy of that supplementary section of 
this charter established and designating the series and fixing and 
determining the relative rights and preferences thereof.
    (5) Limitations on subsequent issuances. A subsidiary holding 
company may amend its charter to require shareholder approval of the 
issuance or reservation of common stock or securities convertible into 
common stock under circumstances which would require shareholder 
approval under the rules of the New York or American Stock Exchange if 
the shares were then listed on the New York or American Stock Exchange.
    (6) Cumulative voting. A subsidiary holding company may amend its 
charter by substituting the following sentence for the second sentence 
in the third paragraph of Section 5: ``Each holder of shares of common 
stock shall be entitled to one vote for each share held by such holder 
and there shall be no right to cumulate votes in an election of 
directors.''
    (7) [Reserved]
    (8) Anti-takeover provisions following mutual to stock conversion. 
Notwithstanding the law of the state in which the subsidiary holding 
company is located, a subsidiary holding company may amend its charter 
by renumbering existing sections as appropriate and adding a new section 
8 as follows:

    Section 8. Certain Provisions Applicable for Five Years. 
Notwithstanding anything contained in the subsidiary holding company's 
charter or bylaws to the contrary, for a period of [specify number of 
years up to five] years from the date of completion of the conversion of 
the subsidiary holding company from mutual to stock form, the following 
provisions shall apply:
    A. Beneficial Ownership Limitation. No person shall directly or 
indirectly offer to acquire or acquire the beneficial ownership of more 
than 10 percent of any class of an equity security of the subsidiary 
holding company. This limitation shall not apply to a transaction in 
which the subsidiary holding company forms a holding company without 
change in the respective beneficial ownership interests of its 
stockholders other than pursuant to the exercise of any dissenter and 
appraisal rights, the purchase of shares by underwriters in connection 
with a public offering, or the purchase of shares by a tax-qualified 
employee stock benefit plan which is exempt from the approval 
requirements under Sec. 238.12(a) of this chapter.
    In the event shares are acquired in violation of this section 8, all 
shares beneficially owned by any person in excess of 10 percent shall be 
considered ``excess shares'' and shall not be counted as shares entitled 
to vote and

[[Page 146]]

shall not be voted by any person or counted as voting shares in 
connection with any matters submitted to the stockholders for a vote.
    For purposes of this section 8, the following definitions apply:
    (1) The term ``person'' includes an individual, a group acting in 
concert, a corporation, a partnership, an association, a joint stock 
company, a trust, an unincorporated organization or similar company, a 
syndicate or any other group formed for the purpose of acquiring, 
holding or disposing of the equity securities of the subsidiary holding 
company.
    (2) The term ``offer'' includes every offer to buy or otherwise 
acquire, solicitation of an offer to sell, tender offer for, or request 
or invitation for tenders of, a security or interest in a security for 
value.
    (3) The term ``acquire'' includes every type of acquisition, whether 
effected by purchase, exchange, operation of law or otherwise.
    (4) The term ``acting in concert'' means (a) knowing participation 
in a joint activity or conscious parallel action towards a common goal 
whether or not pursuant to an express agreement, or (b) a combination or 
pooling of voting or other interests in the securities of an issuer for 
a common purpose pursuant to any contract, understanding, relationship, 
agreement or other arrangements, whether written or otherwise.
    B. Cumulative Voting Limitation. Stockholders shall not be permitted 
to cumulate their votes for election of directors.
    C. Call for Special Meetings. Special meetings of stockholders 
relating to changes in control of the subsidiary holding company or 
amendments to its charter shall be called only upon direction of the 
board of directors.

    (c) Anti-takeover provisions. The Board may grant approval to a 
charter amendment not listed in paragraph (b) of this section regarding 
the acquisition by any person or persons of its equity securities 
provided that the subsidiary holding company shall file as part of its 
application for approval an opinion, acceptable to the Board, of counsel 
independent from the subsidiary holding company that the proposed 
charter provision would be permitted to be adopted by a corporation 
chartered by the state in which the principal office of the subsidiary 
holding company is located. Any such provision must be consistent with 
applicable statutes, regulations, and Board policies. Further, any such 
provision that would have the effect of rendering more difficult a 
change in control of the subsidiary holding company and would require 
for any corporate action (other than the removal of directors) the 
affirmative vote of a larger percentage of shareholders than is required 
by this part, shall not be effective unless adopted by a percentage of 
shareholder vote at least equal to the highest percentage that would be 
required to take any action under such provision.
    (d) Reissuance of charter. A subsidiary holding company that has 
amended its charter may apply to have its charter, including the 
amendments, reissued by the Board. Such requests for reissuance should 
be filed with the appropriate Reserve Bank, and contain signatures 
required by the charter in appendix B to this part, together with such 
supporting documents as needed to demonstrate that the amendments were 
properly adopted.



Sec. 239.23  Bylaws.

    (a) General. At its first organizational meeting, the board of 
directors of a subsidiary holding company shall adopt a set of bylaws 
for the administration and regulation of its affairs. Bylaws may be 
adopted, amended or repealed by either a majority of the votes cast by 
the shareholders at a legal meeting or a majority of the board of 
directors. The bylaws shall contain sufficient provisions to govern the 
subsidiary holding company in accordance with the requirements of 
Sec. Sec. 239.26, 239.27, 239.28, and 239.29 and shall not contain any 
provision that is inconsistent with those sections or with applicable 
laws, rules, regulations or the subsidiary holding company's charter, 
except that a bylaw provision inconsistent with Sec. Sec. 239.26, 
239.27, 239.28, and 239.29 may be adopted with the approval of the 
Board.
    (b) Form of filing--(1) Application requirement. (i) Any bylaw 
amendment shall be submitted to the appropriate Reserve Bank for 
approval if it would:
    (A) Render more difficult or discourage a merger, tender offer, or 
proxy contest, the assumption of control by a holder of a large block of 
the subsidiary holding company's stock, or the removal of incumbent 
management; or
    (B) Be inconsistent with Sec. Sec. 239.26, 239.27, 239.28, and 
239.29, with applicable

[[Page 147]]

laws, rules, regulations or the subsidiary holding company's charter or 
involve a significant issue of law or policy, including indemnification, 
conflicts of interest, and limitations on director or officer liability.
    (ii) Applications submitted under paragraph (b)(1)(i) of this 
section are subject to the processing procedures under Sec. 238.14 of 
this chapter;
    (iii) For purposes of this paragraph (b), bylaw provisions that 
adopt the language of the model bylaws contained in appendix D to this 
part, if adopted without change and filed with Board within 30 days 
after adoption, are effective upon adoption. The Board may amend the 
model bylaws provided in appendix D.
    (2) Filing requirement. If the proposed bylaw amendment does not 
implicate paragraph (b)(1) or (b)(3) of this section and is permissible 
under all applicable laws, rules, or regulations, the subsidiary holding 
company shall submit the amendment to the appropriate Reserve Bank at 
least 30 days prior to the date the bylaw amendment is to be adopted by 
the subsidiary holding company.
    (3) Corporate governance procedures. A subsidiary holding company 
may elect to follow the corporate governance procedures of: The laws of 
the state where the main office of the subsidiary holding company is 
located; Delaware General Corporation law; or The Model Business 
Corporation Act, provided that such procedures may be elected to the 
extent not inconsistent with applicable Federal statutes and regulations 
and safety and soundness, and such procedures are not of the type 
described in paragraph (b)(1)(i) of this section. If this election is 
selected, a subsidiary holding company shall designate in its bylaws the 
provision or provisions from the body or bodies of law selected for its 
corporate governance procedures, and shall file a copy of such bylaws, 
which are effective upon adoption, within 30 days after adoption. The 
submission shall indicate, where not obvious, why the bylaw provisions 
do not require an application under paragraph (b)(1)(i) of this section.
    (c) Effectiveness. Any bylaw amendment filed pursuant to paragraph 
(b)(2) of this section shall automatically be effective 30 days from the 
date of filing of such amendment, provided that the subsidiary holding 
company follows the requirements of its charter and bylaws in adopting 
such amendment, unless the Board notifies the subsidiary holding company 
prior to the expiration of such 30-day period that such amendment is 
rejected or requires an application to be filed pursuant to paragraph 
(b)(1) of this section.
    (d) Effect of subsequent charter or bylaw change. Notwithstanding 
any subsequent change to its charter or bylaws, the authority of a 
subsidiary holding company to engage in any transaction shall be 
determined only by the subsidiary holding company's charter or bylaws 
then in effect, unless otherwise provided by Federal law or regulation.



Sec. 239.24  Issuances of stock by subsidiary holding companies of
mutual holding companies.

    (a) Requirements. No subsidiary holding company of a mutual holding 
company may issue stock to persons other than its mutual holding company 
parent in connection with a mutual holding company reorganization, or at 
any time subsequent to the subsidiary holding company's acquisition by 
the mutual holding company, unless the subsidiary holding company 
obtains advance approval of each such issuance from the Board. Approval 
of a mutual holding company reorganization filed pursuant to Sec. 
239.3(a) shall be deemed to constitute approval of any stock issuance 
specifically applied for pursuant to this section in connection with the 
reorganization, unless otherwise specified by the Board. The Board shall 
approve any proposed issuance that meets each of the criteria set forth 
below in paragraphs (a)(1) through (a)(7) of this section.
    (1) The proposed issuance is to be made pursuant to a Stock Issuance 
Plan that contains all the provisions required by Sec. 239.25.
    (2) The Stock Issuance Plan is consistent with the terms of the 
subsidiary holding company's charter (or any proposed amendments 
thereto), including terms governing the type and amount of stock that 
may be issued.

[[Page 148]]

    (3) The Stock Issuance Plan would provide the subsidiary holding 
company, its mutual holding company parent, and any subsidiary savings 
associations of the subsidiary holding company with fully sufficient 
capital and would not be inequitable or detrimental to the subsidiary 
holding company or its mutual holding company parent or to members of 
the mutual holding company parent.
    (4) The proposed price or price range of the stock to be issued is 
reasonable. The Board shall review the reasonableness of the proposed 
price or price range.
    (5) The aggregate amount of outstanding common stock of the 
subsidiary holding company owned or controlled by persons other than the 
subsidiary holding company's mutual holding company parent at the close 
of the proposed issuance shall be less than 50 percent of the subsidiary 
holding company's total outstanding common stock, unless the subsidiary 
holding company was a stock holding company when acquired by the mutual 
holding company, in which case the foregoing restriction shall not 
apply. Any amount of preferred stock may be issued by any subsidiary 
holding company of a mutual holding company to persons other than the 
subsidiary holding company's mutual holding company, consistent with any 
other applicable laws and regulations.
    (6) The subsidiary holding company furnishes the information 
required by the Board in connection with the proposed issuance.
    (7) The proposed stock issuance meets the convenience and needs 
standard of Sec. 239.55(g).
    (8) The proposed issuance complies with all other applicable laws 
and regulations.
    (9) Unless otherwise determined by the Board, the limitations on the 
minimum and maximum amounts of the estimated price range required by 
Sec. 239.59(c) shall apply.
    (b) Related approvals. Approval by the Board of any stock issuance 
pursuant to this section shall also be deemed to constitute:
    (1) Approval of the form of stock certificate proposed to be 
utilized in connection with the stock issuance, provided such form was 
included in the application materials filed pursuant to this section; 
and
    (2) Approval of any charter or bylaw amendment required to authorize 
issuance of the stock, provided such amendment was proposed in the 
application materials filed pursuant to this section.
    (c) Offering restrictions. (1) No representations may be made in any 
manner in connection with the offer or sale of any stock issued pursuant 
to this section that the price, price range or any other pricing 
information related to such stock issuance has been approved by the 
Board or that the stock has been approved or disapproved by the Board or 
that the Board has endorsed the accuracy or adequacy of any securities 
offering documents disseminated in connection with such stock.
    (2) The sale of minority stock of the subsidiary holding company to 
be made under the minority stock issuance plan, including any sale in a 
public offering or direct community marketing, shall be completed as 
promptly as possible and within 45 calendar days after the last day of 
the subscription period, unless extended by the Board.
    (3) In the offer, sale, or purchase of stock issued pursuant to this 
section, no person shall:
    (i) Employ any device, scheme, or artifice to defraud;
    (ii) Make any untrue statement of a material fact or omit to state a 
material fact necessary in order to make the statements made, in the 
light of the circumstances under which they were made, not misleading; 
or
    (iii) Engage in any act, practice, or course of business which 
operates or would operate as a fraud or deceit upon a purchaser or 
seller.
    (4) Prior to the completion of a stock issuance pursuant to this 
section, no person shall transfer, or enter into any agreement or 
understanding to transfer, the legal or beneficial ownership of the 
stock to be issued to any other person.
    (5) Prior to the completion of a stock issuance pursuant to this 
section, no person shall make any offer, or any announcement of any 
offer, to purchase any stock to be issued, or knowingly acquire any 
stock in the issuance, in

[[Page 149]]

excess of the maximum purchase limitations established in the Stock 
Issuance Plan.
    (6) All stock issuances pursuant to this section must:
    (i) Comply with Sec. 239.59 and, to the extent applicable, the form 
or forms specified by the Board; and
    (ii) Provide that the offering be structured in a manner similar to 
a standard conversion under subpart E of this part, including the stock 
purchase priorities accorded members of the issuing subsidiary holding 
company's mutual holding company, unless the subsidiary holding company 
would qualify for a supervisory conversion if it were to undertake a 
conversion under subpart E of this part; or demonstrates to the 
satisfaction of the Board that a non-conforming issuance would be more 
beneficial to the savings association and subsidiary holding company 
compared to a conforming offering, considering, in the aggregate, the 
effect of each on the savings association and subsidiary holding 
company's financial and managerial resources and future prospects, the 
effect of the issuance upon the savings association and subsidiary 
holding company, the insurance risk to the Deposit Insurance Fund, and 
the convenience and needs of the community to be served.
    (7) Notwithstanding the restrictions in paragraph (c)(6)(ii) of this 
section, a subsidiary holding company of a mutual holding company may 
issue stock as part of a stock benefit plan to any insider, associate of 
an insider, or tax qualified or non-tax qualified employee stock benefit 
plan of the mutual holding company or subsidiary of the mutual holding 
company without including the purchase priorities of subpart E of this 
part.
    (8) As part of a reorganization, a reasonable amount of shares or 
proceeds may be contributed to a charitable organization that complies 
with Sec. Sec. 239.64(b) to 239.64(f), provided such contribution does 
not result in any taxes on excess business holdings under section 4943 
of the Internal Revenue Code (26 U.S.C. 4943).
    (d) Procedural and substantive requirements. The procedural and 
substantive requirements of subpart E of this part shall apply to all 
mutual holding company stock issuances and subsidiary holding company 
stock issuances under this section, unless clearly inapplicable, as 
determined by the Board. For purposes of this paragraph, the term 
conversion as it appears in the provisions of subpart E of this part 
shall refer to the stock issuance, and the term mutual holding company 
shall refer to the subsidiary holding company undertaking the stock 
issuance.



Sec. 239.25  Contents of Stock Issuance Plans.

    (a) Mandatory provisions. Each of the provisions mandatory for all 
stock issuance plans under this paragraph (a) shall be deemed regulatory 
requirements. Each Stock Issuance Plan shall contain a complete 
description of all significant terms of the proposed stock issuance 
(including the information specified in Sec. 239.65(f) to the extent 
known), shall attach and incorporate the proposed form of stock 
certificate, the proposed stock order form, and any agreements or other 
documents defining the rights of the stockholders, and shall:
    (1) Provide that the stock shall be sold at a total price equal to 
the estimated pro forma market value of such stock, based upon an 
independent valuation;
    (2) Provide that the aggregate amount of outstanding common stock of 
the subsidiary holding company owned or controlled by persons other than 
the subsidiary holding company's mutual holding company parent at the 
close of the proposed issuance shall be less than fifty percent of the 
subsidiary holding company's total outstanding common stock (This 
provision may be omitted if the proposed issuance will be conducted by a 
subsidiary holding company that was in the stock form when acquired by 
its mutual holding company parent);
    (3) Provide that all employee stock ownership plans or other tax-
qualified employee stock benefit plans (collectively, ESOPs) must not 
encompass, in the aggregate, more than either 4.9 percent of the 
outstanding shares of the subsidiary holding company's common stock or 
4.9 percent of the subsidiary

[[Page 150]]

holding company's stockholders' equity at the close of the proposed 
issuance;
    (4) Provide that all ESOPs and management recognition plans (MRPs) 
must not encompass, in the aggregate, more than either 4.9 percent of 
the outstanding shares of the subsidiary holding company's common stock 
or 4.9 percent of the subsidiary holding company's stockholders' equity 
at the close of the proposed issuance. However, if the subsidiary 
holding company's tangible capital equals at least ten percent at the 
time of implementation of the plan, the Board may permit such ESOPs and 
MRPs to encompass, in the aggregate, up to 5.88 percent of the 
outstanding common stock or stockholders' equity at the close of the 
proposed issuance;
    (5) Provide that all MRPs must not encompass, in the aggregate, more 
than either 1.47 percent of the common stock of the subsidiary holding 
company or 1.47 percent of the subsidiary holding company's 
stockholders' equity at the close of the proposed issuance. However, if 
the subsidiary holding company's tangible capital is at least ten 
percent at the time of implementation of the plan, the Board may permit 
MRPs to encompass, in the aggregate, up to 1.96 percent of the 
outstanding shares of the subsidiary holding company's common stock or 
1.96 percent of the savings subsidiary holding company's stockholders' 
equity at the close of the proposed issuance;
    (6) Provide that all stock option plans (Option Plans) must not 
encompass, in the aggregate, more than either 4.9 percent of the 
subsidiary holding company's outstanding common stock at the close of 
the proposed issuance or 4.9 percent of the subsidiary holding company's 
stockholders' equity at the close of the proposed issuance;
    (7) Provide that an ESOP, a MRP or an Option Plan modified or 
adopted no earlier than one year after the close of: the proposed 
issuance, or any subsequent issuance that is made in substantial 
conformity with the purchase priorities Sec. 239.59(a) set forth in 
subpart E of this part, may exceed the percentage limitations contained 
in paragraphs (a)(3) through (6) of this section (plan expansion), 
subject to the following two requirements. First, all common stock 
awarded in connection with any plan expansion must be acquired for such 
awards in the secondary market. Second, such acquisitions must begin no 
earlier than when such plan expansion is permitted to be made;
    (8)(i) Provide that the aggregate amount of common stock that may be 
encompassed under all Option Plans and MRPs, or acquired by all insiders 
of the subsidiary holding company and subsidiary savings association and 
associates of insiders of the subsidiary holding company and subsidiary 
savings association, must not exceed the following percentages of common 
stock or stockholders' equity of the subsidiary holding company, held by 
persons other than the subsidiary holding company's mutual holding 
company parent at the close of the proposed issuance:

------------------------------------------------------------------------
                                                            Officer and
                                                             director
                    Institution size                         purchases
                                                             (percent)
------------------------------------------------------------------------
$ 50,000,000 or less....................................              35
$ 50,000,001-100,000,000................................              34
$100,000,001-150,000,000................................              33
$150,000,001-200,000,000................................              32
$200,000,001-250,000,000................................              31
$250,000,001-300,000,000................................              30
$300,000,001-350,000,000................................              29
$350,000,001-400,000,000................................              28
$400,000,001-450,000,000................................              27
$450,000,001-500,000,000................................              26
Over $500,000,000.......................................              25
------------------------------------------------------------------------

    (ii) The percentage limitations contained in paragraph 8(i) of this 
section may be exceeded provided that all stock acquired by insiders and 
associates of insiders or awarded under all MRPs and Option Plans in 
excess of those limitations is acquired in the secondary market. If 
acquired for such awards on the secondary market, such acquisitions must 
begin no earlier than one year after the close of the proposed issuance 
or any subsequent issuance that is made in substantial conformity with 
the purchase priorities set forth in subpart E of this part.
    (iii) In calculating the number of shares held by insiders and their 
associates under this provision, shares awarded but not delivered under 
an ESOP, MRP, or Option Plan that are attributable to such persons shall 
not

[[Page 151]]

be counted as being acquired by such persons.
    (9) Provide that the amount of common stock that may be encompassed 
under all Option Plans and MRPs must not exceed, in the aggregate, 25 
percent of the outstanding common stock held by persons other than the 
subsidiary holding company's mutual holding company parent at the close 
of the proposed issuance;
    (10) Provide that the issuance shall be conducted in compliance 
with, to the extent applicable, the forms required by the Board;
    (11) Provide that the sales price of the shares of stock to be sold 
in the issuance shall be a uniform price determined in accordance with 
Sec. 239.24;
    (12) Provide that, if at the close of the stock issuance the 
subsidiary holding company has more than thirty-five shareholders of any 
class of stock, the subsidiary holding company shall promptly register 
that class of stock pursuant to the Securities Exchange Act of 1934, as 
amended (15 U.S.C. 78a-78jj), and undertake not to deregister such stock 
for a period of three years thereafter;
    (13) Provide that, if at the close of the stock issuance the 
subsidiary holding company has more than one hundred shareholders of any 
class of stock, the subsidiary holding company shall use its best 
efforts to:
    (i) Encourage and assist a market maker to establish and maintain a 
market for that class of stock; and
    (ii) List that class of stock on a national or regional securities 
exchange or on the NASDAQ quotation system;
    (14) Provide that, for a period of three years following the 
proposed issuance, no insider of the subsidiary holding company or his 
or her associates shall purchase, without the prior written approval of 
the Board, any stock of the subsidiary holding company except from a 
broker dealer registered with the Securities and Exchange Commission, 
except that the foregoing restriction shall not apply to:
    (i) Negotiated transactions involving more than one percent of the 
outstanding stock in the class of stock; or
    (ii) Purchases of stock made by and held by any tax-qualified or 
non-tax-qualified employee stock benefit plan of the subsidiary holding 
company even if such stock is attributable to insiders of the subsidiary 
holding company and subsidiary savings association or their associates;
    (15) Provide that stock purchased by insiders of the subsidiary 
holding company and subsidiary savings association and their associates 
in the proposed issuance shall not be sold for a period of at least one 
year following the date of purchase, except in the case of death of the 
insider or associate;
    (16) Provide that, in connection with stock subject to restriction 
on sale for a period of time:
    (i) Each certificate for such stock shall bear a legend giving 
appropriate notice of such restriction;
    (ii) Appropriate instructions shall be issued to the subsidiary 
holding company's transfer agent with respect to applicable restrictions 
on transfer of such stock; and
    (iii) Any shares issued as a stock dividend, stock split, or 
otherwise with respect to any such restricted stock shall be subject to 
the same restrictions as apply to the restricted stock;
    (17) Provide that the subsidiary holding company will not offer or 
sell any of the stock proposed to be issued to any person whose purchase 
would be financed by funds loaned, directly or indirectly, to the person 
by the subsidiary holding company;
    (18) Provide that, if necessary, the subsidiary holding company's 
charter will be amended to authorize issuance of the stock and attach 
and incorporate by reference the text of any such amendment;
    (19) Provide that the expenses incurred in connection with the 
issuance shall be reasonable;
    (20) Provide that the Stock Issuance Plan, if proposed as part of a 
Reorganization Plan, may be amended or terminated in the same manner as 
the Reorganization Plan. Otherwise, the Stock Issuance Plan shall 
provide that it may be substantively amended by the board of directors 
of the issuing subsidiary holding company as a result of comments from 
regulatory authorities or otherwise prior to approval of the Plan by the 
Board, and at any time thereafter with the concurrence of the

[[Page 152]]

Board; and that the Stock Issuance Plan may be terminated by the board 
of directors at any time prior to approval of the Plan by the Board, and 
at any time thereafter with the concurrence of the Board;
    (21) Provide that, unless an extension is granted by the Board, the 
Stock Issuance Plan shall be terminated if not completed within 90 days 
of the date of such approval; or
    (22) Provide that the subsidiary holding company may make scheduled 
discretionary contributions to a tax-qualified employee stock benefit 
plan provided such contributions do not cause the subsidiary holding 
company to fail to meet any of its regulatory capital requirements.
    (b) Optional provisions. A Stock Issuance Plan may:
    (1) Provide that, in the event the proposed stock issuance is part 
of a Reorganization Plan, the stock offering may be commenced 
concurrently with or at any time after the mailing to the members of the 
reorganizing association and any acquiree association of any proxy 
statement(s). The offering may be closed before the required membership 
vote(s), provided the offer and sale of the stock shall be conditioned 
upon the approval of the Reorganization Plan and Stock Issuance Plan by 
the members of the reorganizing association and any acquiree 
association;
    (2) Provide that any insignificant residue of stock of the 
subsidiary holding company not sold in the offering may be sold in such 
other manner as provided in the Stock Issuance Plan, with the Board's 
approval;
    (3) Provide that the subsidiary holding company may issue and sell, 
in lieu of shares of its stock, units of securities consisting of stock 
and long-term warrants or other equity securities, in which event any 
reference in the provisions of this section and in Sec. 239.24 to stock 
shall apply to such units of equity securities unless the context 
otherwise requires; or
    (4) Provide that the subsidiary holding company may reserve shares 
representing up to ten percent of the proposed offering for issuance in 
connection with an employee stock benefit plan.
    (c) Applicability of provisions of Sec. 239.63(a)(1) to minority 
stock issuances. Notwithstanding Sec. 239.24(d), Sec. 239.63(a)(1)(ii) 
do not apply to minority stock issuances, because the permissible sizes 
of ESOPs, MRPs, and Option Plans in minority stock issuances are subject 
to each of the requirements set forth at paragraphs (a)(3) through 
(a)(9) of this section. Section 239.63(a)(4) through (a)(14), apply for 
one year after the subsidiary holding company engages in a minority 
stock issuance that is conducted in accordance with the purchase 
priorities set forth in subpart E of this part. In addition to the 
shareholder vote requirement for Option Plans and MRPs set forth at 
Sec. 239.63(a)(1)(vi), any Option Plans and MRPs put to a shareholder 
vote after a minority stock issuance that is conducted in accordance 
with the purchase priorities set forth in subpart E of this part must be 
approved by a majority of the votes cast by stockholders other than the 
mutual holding company.



Sec. 239.26  Shareholders.

    (a) Shareholder meetings. An annual meeting of the shareholders of 
the subsidiary holding company for the election of directors and for the 
transaction of any other business of the subsidiary holding company 
shall be held annually within 150 days after the end of the subsidiary 
holding company's fiscal year. Unless otherwise provided in the 
subsidiary holding company's charter, special meetings of the 
shareholders may be called by the board of directors or on the request 
of the holders of 10 percent or more of the shares entitled to vote at 
the meeting, or by such other persons as may be specified in the bylaws 
of the subsidiary holding company. All annual and special meetings of 
shareholders shall be held at such place as the board of directors may 
determine in the state in which the subsidiary savings association has 
its principal place of business, or at any other convenient place the 
board of directors may designate.
    (b) Notice of shareholder meetings. Written notice stating the 
place, day, and hour of the meeting and the purpose or purposes for 
which the meeting is called shall be delivered not fewer

[[Page 153]]

than 20 nor more than 50 days before the date of the meeting, either 
personally or by mail, by or at the direction of the chairman of the 
board, the president, the secretary, or the directors, or other natural 
persons calling the meeting, to each shareholder of record entitled to 
vote at such meeting. If mailed, such notice shall be deemed to be 
delivered when deposited in the mail, addressed to the shareholder at 
the address appearing on the stock transfer books or records of the 
subsidiary holding company as of the record date prescribed in paragraph 
(c) of this section, with postage thereon prepaid. When any 
shareholders' meeting, either annual or special, is adjourned for 30 
days or more, notice of the adjourned meeting shall be given as in the 
case of an original meeting. Notwithstanding anything in this section, 
however, a subsidiary holding company that is wholly owned shall not be 
subject to the shareholder notice requirement.
    (c) Fixing of record date. For the purpose of determining 
shareholders entitled to notice of or to vote at any meeting of 
shareholders or any adjournment thereof, or shareholders entitled to 
receive payment of any dividend, or in order to make a determination of 
shareholders for any other proper purpose, the board of directors shall 
fix in advance a date as the record date for any such determination of 
shareholders. Such date in any case shall be not more than 60 days and, 
in case of a meeting of shareholders, not less than 10 days prior to the 
date on which the particular action, requiring such determination of 
shareholders, is to be taken. When a determination of shareholders 
entitled to vote at any meeting of shareholders has been made as 
provided in this section, such determination shall apply to any 
adjournment thereof.
    (d) Voting lists. (1) At least 20 days before each meeting of the 
shareholders, the officer or agent having charge of the stock transfer 
books for the shares of the subsidiary holding company shall make a 
complete list of the stockholders of record entitled to vote at such 
meeting, or any adjournments thereof, arranged in alphabetical order, 
with the address and the number of shares held by each. This list of 
shareholders shall be kept on file at the home office of the subsidiary 
holding company and shall be subject to inspection by any shareholder of 
record or the stockholder's agent during the entire time of the meeting. 
The original stock transfer book shall constitute prima facie evidence 
of the stockholders entitled to examine such list or transfer books or 
to vote at any meeting of stockholders. Notwithstanding anything in this 
section, however, a subsidiary holding company that is wholly owned 
shall not be subject to the voting list requirements.
    (2) In lieu of making the shareholders list available for inspection 
by any shareholders as provided in paragraph (d)(1) of this section, the 
board of directors may perform such acts as required by paragraphs (a) 
and (b) of Rule 14a-7 of the General Rules and Regulations under the 
Securities and Exchange Act of 1934 (17 CFR 240.14a-7) as may be duly 
requested in writing, with respect to any matter which may be properly 
considered at a meeting of shareholders, by any shareholder who is 
entitled to vote on such matter and who shall defray the reasonable 
expenses to be incurred by the subsidiary holding company in performance 
of the act or acts required.
    (e) Shareholder quorum. A majority of the outstanding shares of the 
subsidiary holding company entitled to vote, represented in person or by 
proxy, shall constitute a quorum at a meeting of shareholders. The 
shareholders present at a duly organized meeting may continue to 
transact business until adjournment, notwithstanding the withdrawal of 
enough shareholders to leave less than a quorum. If a quorum is present, 
the affirmative vote of the majority of the shares represented at the 
meeting and entitled to vote on the subject matter shall be the act of 
the stockholders, unless the vote of a greater number of stockholders 
voting together or voting by classes is required by law or the charter. 
Directors, however, are elected by a plurality of the votes cast at an 
election of directors.
    (f) Shareholder voting-- (1) Proxies. Unless otherwise provided in 
the subsidiary holding company's charter, at

[[Page 154]]

all meetings of shareholders, a shareholder may vote in person or by 
proxy executed in writing by the shareholder or by a duly authorized 
attorney in fact. Proxies may be given telephonically or electronically 
as long as the holder uses a procedure for verifying the identity of the 
shareholder. A proxy may designate as holder a corporation, partnership 
or company, or other person. Proxies solicited on behalf of the 
management shall be voted as directed by the shareholder or, in the 
absence of such direction, as determined by a majority of the board of 
directors. No proxy shall be valid more than eleven months from the date 
of its execution except for a proxy coupled with an interest.
    (2) Shares controlled by subsidiary holding company. Neither 
treasury shares of its own stock held by the subsidiary holding company 
nor shares held by another corporation, if a majority of the shares 
entitled to vote for the election of directors of such other corporation 
are held by the subsidiary holding company, shall be voted at any 
meeting or counted in determining the total number of outstanding shares 
at any given time for purposes of any meeting.
    (g) Nominations and new business submitted by shareholders. 
Nominations for directors and new business submitted by shareholders 
shall be voted upon at the annual meeting if such nominations or new 
business are submitted in writing and delivered to the secretary of the 
subsidiary holding company at least five days prior to the date of the 
annual meeting. Ballots bearing the names of all the natural persons 
nominated shall be provided for use at the annual meeting.
    (h) Informal action by stockholders. If the bylaws of the subsidiary 
holding company so provide, any action required to be taken at a meeting 
of the stockholders, or any other action that may be taken at a meeting 
of the stockholders, may be taken without a meeting if consent in 
writing has been given by all the stockholders entitled to vote with 
respect to the subject matter.



Sec. 239.27  Board of directors.

    (a) General powers and duties. The business and affairs of the 
subsidiary holding company shall be under the direction of its board of 
directors. The board of directors shall annually elect a chairman of the 
board from among its members and shall designate the chairman of the 
board, when present, to preside at its meeting. Directors need not be 
stockholders unless the bylaws so require.
    (b) Number and term. The bylaws shall set forth a specific number of 
directors, not a range. The number of directors shall be not fewer than 
five nor more than fifteen, unless a higher or lower number has been 
authorized by the Board. Directors shall be elected for a term of one to 
three years and until their successors are elected and qualified. If a 
staggered board is chosen, the directors shall be divided into two or 
three classes as nearly equal in number as possible and one class shall 
be elected by ballot annually. In the case of a converting or newly 
chartered subsidiary holding company where all directors shall be 
elected at the first election of directors, if a staggered board is 
chosen, the terms shall be staggered in length from one to three years.
    (c) Regular meetings. A regular meeting of the board of directors 
shall be held immediately after, and at the same place as, the annual 
meeting of shareholders. The board of directors shall determine the 
place, frequency, time and procedure for notice of regular meetings.
    (d) Quorum. A majority of the number of directors shall constitute a 
quorum for the transaction of business at any meeting of the board of 
directors. The act of the majority of the directors present at a meeting 
at which a quorum is present shall be the act of the board of directors, 
unless a greater number is prescribed by regulation of the Board.
    (e) Vacancies. Any vacancy occurring in the board of directors may 
be filled by the affirmative vote of a majority of the remaining 
directors although less than a quorum of the board of directors. A 
director elected to fill a vacancy shall be elected to serve only until 
the next election of directors by the shareholders. Any directorship to 
be filled by reason of an increase in the number of directors may be 
filled by

[[Page 155]]

election by the board of directors for a term of office continuing only 
until the next election of directors by the shareholders.
    (f) Removal or resignation of directors. (1) At a meeting of 
shareholders called expressly for that purpose, any director may be 
removed only for cause, as defined in Sec. 239.41, by a vote of the 
holders of a majority of the shares then entitled to vote at an election 
of directors. Subsidiary holding companies may provide for procedures 
regarding resignations in the bylaws.
    (2) If less than the entire board is to be removed, no one of the 
directors may be removed if the votes cast against the removal would be 
sufficient to elect a director if then cumulatively voted at an election 
of the class of directors of which such director is a part.
    (3) Whenever the holders of the shares of any class are entitled to 
elect one or more directors by the provisions of the charter or 
supplemental sections thereto, the provisions of this section shall 
apply, in respect to the removal of a director or directors so elected, 
to the vote of the holders of the outstanding shares of that class and 
not to the vote of the outstanding shares as a whole.
    (g) Executive and other committees. The board of directors, by 
resolution adopted by a majority of the full board, may designate from 
among its members an executive committee and one or more other 
committees each of which, to the extent provided in the resolution or 
bylaws of the subsidiary holding company, shall have and may exercise 
all of the authority of the board of directors, except no committee 
shall have the authority of the board of directors with reference to: 
the declaration of dividends; the amendment of the charter or bylaws of 
the subsidiary holding company; recommending to the stockholders a plan 
of merger, consolidation, or conversion; the sale, lease, or other 
disposition of all, or substantially all, of the property and assets of 
the subsidiary holding company otherwise than in the usual and regular 
course of its business; a voluntary dissolution of the subsidiary 
holding company; a revocation of any of the foregoing; or the approval 
of a transaction in which any member of the executive committee, 
directly or indirectly, has any material beneficial interest. The 
designation of any committee and the delegation of authority thereto 
shall not operate to relieve the board of directors, or any director, of 
any responsibility imposed by law or regulation.
    (h) Notice of special meetings. Written notice of at least 24 hours 
regarding any special meeting of the board of directors or of any 
committee designated thereby shall be given to each director in 
accordance with the bylaws, although such notice may be waived by the 
director. The attendance of a director at a meeting shall constitute a 
waiver of notice of such meeting, except where a director attends a 
meeting for the express purpose of objecting to the transaction of any 
business because the meeting is not lawfully called or convened. Neither 
the business to be transacted at, nor the purpose of, any meeting need 
be specified in the notice or waiver of notice of such meeting. The 
bylaws may provide for telephonic participation at a meeting.
    (i) Action without a meeting. Any action required or permitted to be 
taken by the board of directors at a meeting may be taken without a 
meeting if a consent in writing, setting forth the actions so taken, 
shall be signed by all of the directors.
    (j) Presumption of assent. A director of the subsidiary holding 
company who is present at a meeting of the board of directors at which 
action on any subsidiary holding company matter is taken shall be 
presumed to have assented to the action taken unless his or her dissent 
or abstention shall be entered in the minutes of the meeting or unless a 
written dissent to such action shall be filed with the individual acting 
as the secretary of the meeting before the adjournment thereof or shall 
be forwarded by registered mail to the secretary of the subsidiary 
holding company within five days after the date on which a copy of the 
minutes of the meeting is received. Such right to dissent shall not 
apply to a director who voted in favor of such action.
    (k) Age limitation on directors. A subsidiary holding company may 
provide a bylaw on age limitation for directors.

[[Page 156]]

Bylaws on age limitations must comply with all Federal laws, rules and 
regulations.



Sec. 239.28  Officers.

    (a) Positions. The officers of the subsidiary holding company shall 
be a president, one or more vice presidents, a secretary, and a 
treasurer or comptroller, each of whom shall be elected by the board of 
directors. The board of directors may also designate the chairman of the 
board as an officer. The offices of the secretary and treasurer or 
comptroller may be held by the same individual and the vice president 
may also be either the secretary or the treasurer or comptroller. The 
board of directors may designate one or more vice presidents as 
executive vice president or senior vice president. The board of 
directors may also elect or authorize the appointment of such other 
officers as the business of the subsidiary holding company may require. 
The officers shall have such authority and perform such duties as the 
board of directors may from time to time authorize or determine. In the 
absence of action by the board of directors, the officers shall have 
such powers and duties as generally pertain to their respective offices.
    (b) Removal. Any officer may be removed by the board of directors 
whenever in its judgment the best interests of the subsidiary holding 
company will be served thereby; but such removal, other than for cause, 
shall be without prejudice to the contractual rights, if any, of the 
individual so removed. Employment contracts shall conform with Sec. 
239.41.
    (c) Age limitation on officers. A subsidiary holding company may 
provide a bylaw on age limitation for officers. Bylaws on age 
limitations must comply with all Federal laws, rules, and regulations.



Sec. 239.29  Certificates for shares and their transfer.

    (a) Certificates for shares. Certificates representing shares of 
capital stock of the subsidiary holding company shall be in such form as 
shall be determined by the board of directors and approved by the Board. 
The certificates shall be signed by the chief executive officer or by 
any other officer of the subsidiary holding company authorized by the 
board of directors, attested by the secretary or an assistant secretary, 
and sealed with the corporate seal or a facsimile thereof. The 
signatures of such officers upon a certificate may be facsimiles if the 
certificate is manually signed on behalf of a transfer agent or a 
registrar other than the subsidiary holding company itself or one of its 
employees. Each certificate for shares of capital stock shall be 
consecutively numbered or otherwise identified. The name and address of 
the person to whom the shares are issued, with the number of shares and 
date of issue, shall be entered on the stock transfer books of the 
subsidiary holding company. All certificates surrendered to the 
subsidiary holding company for transfer shall be cancelled and no new 
certificate shall be issued until the former certificate for a like 
number of shares shall have been surrendered and cancelled, except that 
in the case of a lost or destroyed certificate a new certificate may be 
issued upon such terms and indemnity to the subsidiary holding company 
as the board of directors may prescribe.
    (b) Transfer of shares. Transfer of shares of capital stock of the 
subsidiary holding company shall be made only on its stock transfer 
books. Authority for such transfer shall be given only by the holder of 
record or by a legal representative, who shall furnish proper evidence 
of such authority, or by an attorney authorized by a duly executed power 
of attorney and filed with the subsidiary holding company. The transfer 
shall be made only on surrender for cancellation of the certificate for 
the shares. The person in whose name shares of capital stock stand on 
the books of the subsidiary holding company shall be deemed by the 
subsidiary holding company to be the owner for all purposes.



Sec. 239.30  Annual reports; books and records.

    (a) Annual reports to stockholders. A subsidiary holding company not 
wholly-owned by a holding company shall, within 130 days after the end 
of its fiscal year, mail to each of its stockholders entitled to vote at 
its annual

[[Page 157]]

meeting an annual report containing financial statements that satisfy 
the requirements of rule 14a-3 under the Securities Exchange Act of 
1934. (17 CFR 240.14a-3). Concurrently with such mailing a certification 
of such mailing signed by the chairman of the board, the president or a 
vice president of the subsidiary holding company, together with a copy 
of the report, shall be transmitted by the subsidiary holding company to 
the appropriate Reserve Bank.
    (b) Books and records. (1) Each subsidiary holding company shall 
keep correct and complete books and records of account; shall keep 
minutes of the proceedings of its stockholders, board of directors, and 
committees of directors; and shall keep at its home office or at the 
office of its transfer agent or registrar, a record of its stockholders, 
giving the names and addresses of all stockholders, and the number, 
class and series, if any, of the shares held by each.
    (2) Any stockholder or group of stockholders of a subsidiary holding 
company, holding of record the number of voting shares of such 
subsidiary holding company specified below, upon making written demand 
stating a proper purpose, shall have the right to examine, in person or 
by agent or attorney, at any reasonable time or times, nonconfidential 
portions of its books and records of account, minutes and record of 
stockholders and to make extracts therefrom. Such right of examination 
is limited to a stockholder or group of stockholders holding of record:
    (i) Voting shares having a cost of not less than $100,000 or 
constituting not less than one percent of the total outstanding voting 
shares, provided in either case such stockholder or group of 
stockholders have held of record such voting shares for a period of at 
least six months before making such written demand, or
    (ii) Not less than five percent of the total outstanding voting 
shares. No stockholder or group of stockholders of a subsidiary holding 
company shall have any other right under this section or common law to 
examine its books and records of account, minutes and record of 
stockholders, except as provided in its bylaws with respect to 
inspection of a list of stockholders.
    (3) The right to examination authorized by paragraph (b)(2) of this 
section and the right to inspect the list of stockholders provided by a 
subsidiary holding company's bylaws may be denied to any stockholder or 
group of stockholders upon the refusal of any such stockholder or group 
of stockholders to furnish such subsidiary holding company, its transfer 
agent or registrar an affidavit that such examination or inspection is 
not desired for any purpose which is in the interest of a business or 
object other than the business of the subsidiary holding company, that 
such stockholder has not within the five years preceding the date of the 
affidavit sold or offered for sale, and does not now intend to sell or 
offer for sale, any list of stockholders of the subsidiary holding 
company or of any other corporation, and that such stockholder has not 
within said five-year period aided or abetted any other person in 
procuring any list of stockholders for purposes of selling or offering 
for sale such list.
    (4) Notwithstanding any provision of this section or common law, no 
stockholder or group of stockholders shall have the right to obtain, 
inspect or copy any portion of any books or records of a subsidiary 
holding company containing:
    (i) A list of depositors in or borrowers from such subsidiary 
holding company;
    (ii) Their addresses;
    (iii) Individual deposit or loan balances or records; or
    (iv) Any data from which such information could be reasonably 
constructed.



Sec. 239.31  Indemnification; employment contracts.

    (a) Restrictions on indemnification. The provisions of Sec. 239.40 
shall apply to subsidiary holding companies.
    (b) Restrictions on employment contracts. The provisions of Sec. 
239.41 and any policies of the Board thereunder shall apply to 
subsidiary holding companies.

[[Page 158]]



             Subpart D_Indemnification; Employment Contracts



Sec. 239.40  Indemnification of directors, officers and employees.

    A mutual holding company shall indemnify its directors, officers, 
and employees in accordance with the following requirements:
    (a) Definitions and rules of construction. (1) Definitions for 
purposes of this section.
    (i) Action means any judicial or administrative proceeding, or 
threatened proceeding, whether civil, criminal, or otherwise, including 
any appeal or other proceeding for review;
    (ii) Court includes, without limitation, any court to which or in 
which any appeal or any proceeding for review is brought.
    (iii) Final judgment means a judgment, decree, or order which is not 
appealable or as to which the period for appeal has expired with no 
appeal taken.
    (iv) Settlement includes entry of a judgment by consent or 
confession or a plea of guilty or nolo contendere.
    (2) References in this section to any individual or other person, 
including any mutual holding company, shall include legal 
representatives, successors, and assigns thereof.
    (b) General. Subject to paragraphs (c) and (g) of this section, a 
mutual holding company shall indemnify any person against whom an action 
is brought or threatened because that person is or was a director, 
officer, or employee of the mutual holding company, for:
    (1) Any amount for which that person becomes liable under a judgment 
if such action; and
    (2) Reasonable costs and expenses, including reasonable attorney's 
fees, actually paid or incurred by that person in defending or settling 
such action, or in enforcing his or her rights under this section if he 
or she attains a favorable judgment in such enforcement action.
    (c) Requirements. Indemnification shall be made to such period under 
paragraph (b) of this section only if:
    (1) Final judgment on the merits is in his or her favor; or
    (2) In case of:
    (i) Settlement,
    (ii) Final judgment against him or her, or
    (iii) Final judgment in his or her favor, other than on the merits, 
if a majority of the disinterested directors of the mutual holding 
company determine that he or she was acting in good faith within the 
scope of his or her employment or authority as he or she could 
reasonably have perceived it under the circumstances and for a purpose 
he or she could reasonably have believed under the circumstances was in 
the best interests of the mutual holding company or its members. 
However, no indemnification shall be made unless the mutual holding 
company gives the Board at least 60 days' notice of its intention to 
make such indemnification. Such notice shall state the facts on which 
the action arose, the terms of any settlement, and any disposition of 
the action by a court. Such notice, a copy thereof, and a certified copy 
of the resolution containing the required determination by the board of 
directors shall be sent to the appropriate Reserve Bank, who shall 
promptly acknowledge receipt thereof. The notice period shall run from 
the date of such receipt. No such indemnification shall be made if the 
Board advises the mutual holding company in writing, within such notice 
period, of its objection to the indemnification.
    (d) Insurance. A mutual holding company may obtain insurance to 
protect it and its directors, officers, and employees from potential 
losses arising from claims against any of them for alleged wrongful 
acts, or wrongful acts, committed in their capacity as directors, 
officers, or employees. However, no mutual holding company may obtain 
insurance which provides for payment of losses of any individual 
incurred as a consequence of his or her willful or criminal misconduct.
    (e) Payment of expenses. If a majority of the directors of a mutual 
holding company concludes that, in connection with an action, any person 
ultimately may become entitled to indemnification under this section, 
the directors may authorize payment of reasonable costs and expenses, 
including reasonable attorneys' fees, arising from the defense or 
settlement of such action.

[[Page 159]]

Nothing in this paragraph shall prevent the directors of a mutual 
holding company from imposing such conditions on a payment of expenses 
as they deem warranted and in the interests of the mutual holding 
company. Before making advance payment of expenses under this paragraph, 
the mutual holding company shall obtain an agreement that the mutual 
holding company will be repaid if the person on whose behalf payment is 
made is later determined not to be entitled to such indemnification.
    (f) Exclusiveness of provisions. No mutual holding company shall 
indemnify any person referred to in paragraph (b) of this section or 
obtain insurance referred to in paragraph (d) of the section other than 
in accordance with this section. However, a mutual holding company which 
has a bylaw in effect relating to indemnification of its personnel shall 
be governed solely by that bylaw, except that its authority to obtain 
insurance shall be governed by paragraph (d) of this section.
    (g) The indemnification provided for in paragraph (b) of this 
section is subject to and qualified by 12 U.S.C. 1821(k).



Sec. 239.41  Employment contracts.

    (a) General. A mutual holding company may enter into an employment 
contract with its officers and other employees only in accordance with 
the requirements of this section. All employment contracts shall be in 
writing and shall be approved specifically by the respective mutual 
holding company's board of directors. A mutual holding company shall not 
enter into an employment contract with any of its officers or other 
employees if such contract would constitute an unsafe or unsound 
practice. The making of such an employment contract would be an unsafe 
or unsound practice if such contract could lead to material financial 
loss or damage to the mutual holding company or could interfere 
materially with the exercise by the members of its board of directors of 
their duty or discretion provided by law, charter, bylaw or regulation 
as to the employment or termination of employment of an officer or 
employee of the mutual holding company. This may occur, depending upon 
the circumstances of the case, where an employment contract provides for 
an excessive term.
    (b) Required provisions. Each employment contract shall provide 
that:
    (1) The mutual holding company's board of directors may terminate 
the officer or employee's employment at any time, but any termination by 
the mutual holding company's board of directors other than termination 
for cause, shall not prejudice the officer or employee's right to 
compensation or other benefits under the contract. The officer or 
employee shall have no right to receive compensation or other benefits 
for any period after termination for cause. Termination for cause shall 
include termination because of the officer or employee's personal 
dishonesty, incompetence, willful misconduct, breach of fiduciary duty 
involving personal profit, intentional failure to perform stated duties, 
willful violation of any law, rule, or regulation (other than traffic 
violations or similar offenses) or final cease-and-desist order, or 
material breach of any provision of the contract.
    (2) If the officer or employee is suspended and/or temporarily 
prohibited from participating in the conduct of the mutual holding 
company's affairs by a notice served under section 8 (e)(3) or (g)(1) of 
Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(3) and (g)(1)) the 
mutual holding company's obligations under the contract shall be 
suspended as of the date of service unless stayed by appropriate 
proceedings. If the charges in the notice are dismissed, the mutual 
holding company may in its discretion:
    (i) Pay the officer or employee all or part of the compensation 
withheld while its contract obligations were suspended, and
    (ii) Reinstate (in whole or in part) any of its obligations which 
were suspended.
    (3) If the officer or employee is removed and/or permanently 
prohibited from participating in the conduct of the mutual holding 
company's affairs by an order issued under section 8 (e)(4) or (g)(1) of 
the Federal Deposit Insurance Act (12 U.S.C. 1818 (e)(4) or (g)(1)), all 
obligations of the mutual holding

[[Page 160]]

company under the contract shall terminate as of the effective date of 
the order, but vested rights of the contracting parties shall not be 
affected.
    (4) If the subsidiary savings association is in default (as defined 
in section 3(x)(1) of the Federal Deposit Insurance Act), all 
obligations under the contract shall terminate as of the date of 
default, but this paragraph (b) shall not affect any vested rights of 
the contracting parties: Provided, that this paragraph (b) need not be 
included in an employment contract if prior written approval is secured 
from the Board.
    (5) If the mutual holding company is subject to bankruptcy 
proceedings under title 11 of the United States Code, all obligations of 
the mutual holding company under the contract shall terminate as of the 
date that the petition is filed, but vested rights of the contracting 
parties shall not be affected: Provided, that this paragraph (b) need 
not be included in an employment contract if prior written approval is 
secured from the Board.
    (6) All obligations under the contract shall be terminated, except 
to the extent determined that continuation of the contract is necessary 
to the continued operation of the mutual holding company--
    (i) By the Board, at the time the Federal Deposit Insurance 
Corporation enters into an agreement to provide assistance to or on 
behalf of the subsidiary savings association under the authority 
contained in 13(c) of the Federal Deposit Insurance Act; or
    (ii) By the Board, at the time the Board approves a supervisory 
merger to resolve problems related to operation of the mutual holding 
company or when the mutual holding company is determined by the Board to 
be in an unsafe or unsound condition.



             Subpart E_Conversions from Mutual to Stock Form



Sec. 239.50  Purpose and scope.

    (a) General. This subpart governs how a mutual holding company may 
convert from the mutual to the stock form of ownership. This subpart 
supersedes all inconsistent charter and bylaw provisions of mutual 
holding companies converting to stock form.
    (b) Prescribed forms. A mutual holding company must use the forms 
prescribed under this subpart and provide such information as the Board 
may require under the forms by regulation or otherwise. The forms 
required under this subpart include: Form AC (Application for 
Conversion); Form PS (Proxy Statement); Form OC (Offering Circular); and 
Form OF (Order Form).
    (c) Waivers. The Board may waive any requirement of this subpart or 
a provision in any prescribed form. To obtain a waiver, a mutual holding 
company must file a written request with the Board that:
    (1) Specifies the requirement(s) or provision(s) that the mutual 
holding company wants the Board to waive;
    (2) Demonstrates that the waiver is equitable; is not detrimental to 
the mutual holding company, mutual members, or other mutual holding 
companies or savings associations; and is not contrary to the public 
interest; and
    (3) Includes an opinion of counsel demonstrating that applicable law 
does not conflict with the waiver of the requirement or provision.



Sec. 239.51  Acquiring another insured stock depository institution as
part of a conversion.

    When a mutual holding company converts to stock form, the subsidiary 
savings association may acquire for cash or stock another insured 
depository institution that is already in the stock form of ownership.



Sec. 239.52  Definitions.

    The following definitions apply to this subpart and the forms 
prescribed under this subpart:
    (a) Association members or members are persons who, under applicable 
law, are eligible to vote at the meeting on conversion.
    (b) Eligibility record date is the date for determining eligible 
account holders. The eligibility record date must be at least one year 
before the date that the board of directors adopts the plan of 
conversion.
    (c) Eligible account holders are any persons holding qualifying 
deposits on the eligibility record date.

[[Page 161]]

    (d) IRS is the United States Internal Revenue Service.
    (e) Local community includes:
    (1) Every county, parish, or similar governmental subdivision in 
which the mutual holding company has a home or branch office;
    (2) Each county's, parish's, or subdivision's metropolitan 
statistical area;
    (3) All zip code areas in the mutual holding company's Community 
Reinvestment Act assessment area; and
    (4) Any other area or category the mutual holding company sets out 
in its plan of conversion, as approved by the Board.
    (f) Mutual holding company has the same meaning in this subpart as 
that term is given in subpart A. For purposes of this subpart, 
references to mutual holding company shall also include a resulting 
stock holding company, where applicable.
    (g) Offer, offer to sell, or offer for sale is an attempt or offer 
to dispose of, or a solicitation of an offer to buy, a security or 
interest in a security for value. Preliminary negotiations or agreements 
with an underwriter, or among underwriters who are or will be in privity 
of contract with the mutual holding company or resulting stock holding 
company, are not offers, offers to sell, or offers for sale.
    (h) Proxy soliciting material includes a proxy statement, form of 
proxy, or other written or oral communication regarding the conversion.
    (i) Purchase or buy includes every contract to acquire a security or 
interest in a security for value.
    (j) Qualifying deposit is the total balance in an account holder's 
savings accounts at the close of business on the eligibility or 
supplemental eligibility record date. The mutual holding company's plan 
of conversion may provide that only savings accounts with total deposit 
balances of $50 or more will qualify.
    (k) Resulting stock holding company means the stock savings and loan 
holding company that is issuing stock in connection with conversion of a 
mutual holding company pursuant to this subpart.
    (l) Sale or sell includes every contract to dispose of a security or 
interest in a security for value. An exchange of securities in a merger 
or acquisition approved by the Board is not a sale.
    (m) Solicitation and solicit is a request for a proxy, whether or 
not accompanied by or included in a form of proxy; a request to execute, 
not execute, or revoke a proxy; or the furnishing of a form of proxy or 
other communication reasonably calculated to cause the members to 
procure, withhold, or revoke a proxy. Solicitation or solicit does not 
include providing a form of proxy at the unsolicited request of a 
member, the acts required to mail communications for members, or 
ministerial acts performed on behalf of a person soliciting a proxy.
    (n) Subscription offering is the offering of shares through 
nontransferable subscription rights to:
    (1) Eligible account holders under Sec. 239.59(h);
    (2) Tax-qualified employee stock ownership plans under Sec. 
239.59(m);
    (3) Supplemental eligible account holders under Sec. 239.59(h); and
    (4) Other voting members under Sec. 239.59(j).
    (o) Supplemental eligibility record date is the date for determining 
supplemental eligible account holders. The supplemental eligibility 
record date is the last day of the calendar quarter before the Board 
approves the conversion and will occur only if the Board has not 
approved the conversion within 15 months of the eligibility record date.
    (p) Supplemental eligible account holders are any persons, except 
officers, directors, and their associates of the mutual holding company 
or subsidiary savings association, holding qualifying deposits on the 
supplemental eligibility record date.
    (q) Underwriter is any person who purchases any securities from the 
mutual holding company or resulting stock holding company with a view to 
distributing the securities, offers or sells securities for the mutual 
stock holding company or resulting stock holding company in connection 
with the securities' distribution, or participates or has a direct or 
indirect participation in the direct or indirect underwriting of any 
such undertaking. Underwriter does not include a person whose interest 
is limited to a usual and customary

[[Page 162]]

distributor's or seller's commission from an underwriter or dealer.



Sec. 239.53  Prior to conversion.

    (a) Pre-filing meeting and consultation. (1) The mutual holding 
company's board, or a subcommittee of the board, may meet with the staff 
of the appropriate Reserve Bank or Board staff before the mutual holding 
company's board of directors votes on the plan of conversion. At that 
meeting the mutual holding company may provide the Reserve Bank or Board 
staff with a written strategic plan that outlines the objectives of the 
proposed conversion and the intended use of the conversion proceeds.
    (2) The mutual holding company should also consult with the Board or 
appropriate Reserve Bank before it files its application for conversion. 
The Reserve Bank or Board will discuss the information that the mutual 
holding company must include in the application for conversion, general 
issues that the mutual holding company may confront in the conversion 
process, and any other pertinent issues.
    (b) Business plan. (1) Prior to filing an application for 
conversion, the mutual holding company must adopt a business plan 
reflecting the mutual holding company's intended plans for deployment of 
the proposed conversion proceeds. The business plan is required, under 
Sec. 239.55(b), to be included in the mutual holding company's 
conversion application. At a minimum, the business plan must address:
    (i) The subsidiary savings association's projected operations and 
activities for three years following the conversion. The business plan 
must describe how the conversion proceeds will be deployed at the 
savings association (and holding company, if applicable), what 
opportunities are available to reasonably achieve the planned deployment 
of conversion proceeds in the relevant proposed market areas, and how 
its deployment will provide a reasonable return on investment 
commensurate with investment risk, investor expectations, and industry 
norms, by the final year of the business plan. The business plan must 
include three years of projected financial statements. The business plan 
must provide that the subsidiary savings associations receive at least 
50 percent of the net conversion proceeds. The Board may require that a 
larger percentage of proceeds be contributed to the subsidiary savings 
associations.
    (ii) The mutual holding company's plan for deploying conversion 
proceeds to meet credit and lending needs in the proposed market areas. 
The Board strongly discourages business plans that provide for a 
substantial investment in mortgage securities or other securities, 
except as an interim measure to facilitate orderly, prudent deployment 
of proceeds during the three years following the conversion, or as part 
of a properly managed leverage strategy.
    (iii) The risks associated with the plan for deployment of 
conversion proceeds, and the effect of this plan on management 
resources, staffing, and facilities.
    (iv) The expertise of the mutual holding company and saving 
association subsidiary's management and board of directors, or that the 
mutual holding company has planned for adequate staffing and controls to 
prudently manage the growth, expansion, new investment, and other 
operations and activities proposed in its business plan.
    (2) The mutual holding company may not project returns of capital or 
special dividends in any part of the business plan. A newly converted 
company may not plan on stock repurchases in the first year of the 
business plan.
    (c) Management and board review of business plan. (1) The chief 
executive officer and members of the board of directors of the mutual 
holding company must review, and at least two-thirds of the board of 
directors must approve, the business plan.
    (2) The chief executive officer and at least two-thirds of the board 
of directors of the mutual holding company must certify that the 
business plan accurately reflects the intended plans for deployment of 
conversion proceeds, and that any new initiatives reflected in the 
business plan are reasonably achievable. The mutual holding company must 
submit these certifications with its business plan, as part of the 
conversion application under paragraph (b) of this section.

[[Page 163]]

    (d) Board review of the business plan. g(1) The Board will review 
the business plan to determine whether it demonstrates a safe and sound 
deployment of conversion proceeds, as part of its review of the 
conversion application. In making its determination, the Board will 
consider how the mutual holding company has addressed the applicable 
factors of paragraph (b) of this section. No single factor will be 
determinative. The Board will review every case on its merits.
    (2) The mutual holding company must file its business plan with the 
appropriate Reserve Bank. The Board or appropriate Reserve Bank may 
request additional information, if necessary, to support its 
determination under paragraph (d)(1) of this section. The mutual holding 
company must file its business plan as a confidential exhibit to the 
Form AC.
    (3) If the Board approves the application for conversion and the 
mutual holding company completes the conversion, the resulting stock 
holding company must operate within the parameters of the business plan. 
The Board must approve any material deviation from the business plan in 
writing prior to such material deviation.
    (e) Disclosure of business plan. (1) The mutual holding company may 
discuss information about the conversion with individuals that it 
authorizes to prepare documents for the conversion.
    (2) Except as permitted under paragraph (e)(1) of this section, the 
mutual holding company must keep all information about the conversion 
confidential until the board of directors adopts the plan of conversion.
    (3) If the mutual holding company violates this section, the Board 
may require it to take remedial action. For example, the Board may 
require the mutual holding company to take any or all of the following 
actions:
    (i) Publicly announce that the mutual holding company is considering 
a conversion;
    (ii) Set an eligibility record date acceptable to the Board;
    (iii) Limit the subscription rights of any person who violates or 
aids in a violation of this section; or
    (iv) Take any other action to ensure that the conversion is fair and 
equitable.



Sec. 239.54  Plan of conversion.

    (a) Adoption by the board of directors. Prior to filing an 
application for conversion, the board of directors of the mutual holding 
company must adopt a plan of conversion that conforms to Sec. Sec. 
239.59 through 239.62 and 239.63(b). The board of directors must adopt 
the plan by at least a two-thirds vote. The plan of conversion is 
required, under Sec. 239.55(b), to be included in the conversion 
application.
    (b) Contents of the plan of conversion. The mutual holding company 
must include the information included in Sec. Sec. 239.59 through 
239.62 and 239.63(b) in the plan of conversion. The Board may require 
the mutual holding company to delete or revise any provision in the plan 
of conversion if the Board determines the provision is inequitable; is 
detrimental to the mutual holding company, the account holders, other 
mutual holding companies, or other savings associations; or is contrary 
to public interest.
    (c) Notice of board of directors' approval of the plan of 
conversion--(1) Notice. The mutual holding company must promptly notify 
its members that the board of directors adopted a plan of conversion and 
that a copy of the plan is available for the members' inspection in the 
mutual holding company's home office and in each of the subsidiary 
savings association's branch offices. The mutual holding company must 
mail a letter to each member or publish a notice in the local newspaper 
in every local community where the savings association has an office. 
The mutual holding company may also issue a press release. The Board may 
require broader publication, if necessary, to ensure adequate notice to 
the members.
    (2) Contents of notice. The mutual holding company may include any 
of the following statements and descriptions in the letter, notice, or 
press release.
    (i) The board of directors adopted a proposed plan to convert from 
mutual to stock form.

[[Page 164]]

    (ii) The mutual holding company will send its members a proxy 
statement with detailed information on the proposed conversion before 
the mutual holding company convenes a members' meeting to vote on the 
conversion.
    (iii) The members will have an opportunity to approve or disapprove 
the proposed conversion at a meeting. At least a majority of the 
eligible votes must approve the conversion.
    (iv) The mutual holding company will not vote existing proxies to 
approve or disapprove the conversion. The mutual holding company will 
solicit new proxies for voting on the proposed conversion.
    (v) The Board must approve the conversion before the conversion will 
be effective. The members will have an opportunity to file written 
comments, including objections and materials supporting the objections, 
with the Board.
    (vi) The IRS must issue a favorable tax ruling, or a tax expert must 
issue an appropriate tax opinion, on the tax consequences of the 
conversion before the Board will approve the conversion. The ruling or 
opinion must indicate the conversion will be a tax-free reorganization.
    (vii) The Board might not approve the conversion, and the IRS or a 
tax expert might not issue a favorable tax ruling or tax opinion.
    (viii) Savings account holders will continue to hold accounts in the 
savings association with the same dollar amounts, rates of return, and 
general terms as existing deposits. The FDIC will continue to insure the 
accounts.
    (ix) The mutual holding company's conversion will not affect 
borrowers' loans, including the amount, rate, maturity, security, and 
other contractual terms.
    (x) The savings association's business of accepting deposits and 
making loans will continue without interruption.
    (xi) The current management and staff will continue to conduct 
current services for depositors and borrowers under current policies and 
in existing offices.
    (xii) The subsidiary savings association may continue to be a member 
of the Federal Home Loan Bank System.
    (xiii) The mutual holding company may substantively amend the 
proposed plan of conversion before the members' meeting.
    (xiv) The mutual holding company may terminate the proposed 
conversion.
    (xv) After the Board approves the proposed conversion, the mutual 
holding company will send proxy materials providing additional 
information. After the mutual holding company sends proxy materials, 
members may telephone or write to the mutual holding company with 
additional questions.
    (xvi) The proposed record date for determining the eligible account 
holders who are entitled to receive subscription rights to purchase the 
shares.
    (xvii) A brief description of the circumstances under which 
supplemental eligible account holders will receive subscription rights 
to purchase the shares.
    (xviii) A brief description of how voting members may participate in 
the conversion.
    (xix) A brief description of how directors, officers, and employees 
will participate in the conversion.
    (xx) A brief description of the proposed plan of conversion.
    (xxi) The par value (if any) and approximate number of shares that 
will be issued and sold in the conversion.
    (3) Other requirements. (i) The mutual holding company may not 
solicit proxies, provide financial statements, describe the benefits of 
conversion, or estimate the value of the shares upon conversion in the 
letter, notice, or press release.
    (ii) If the mutual holding company responds to inquiries about the 
conversion, it may address only the matters listed in paragraph (c)(2) 
of this section.
    (d) Amending a plan of conversion. The mutual holding company may 
amend its plan of conversion before it solicits proxies. After the 
mutual holding company solicits proxies, it may amend the plan of 
conversion only if the Board concurs.



Sec. 239.55  Filing requirements.

    (a) Applications under this subpart. Any filing with the Board 
required under this subpart must be filed in accordance with Sec. 
238.14 of this chapter. The Board will review any filing made

[[Page 165]]

under this subpart in accordance with Sec. 238.14 of this chapter.
    (b) Requirements.(1) The application for conversion must include all 
of the following information.
    (i) A plan of conversion meeting the requirements of Sec. 
239.54(b).
    (ii) Pricing materials meeting the requirements paragraph (g)(2) of 
this section.
    (iii) Proxy soliciting materials under Sec. 239.57(d), including:
    (A) A preliminary proxy statement with signed financial statements;
    (B) A form of proxy meeting the requirements of Sec. 239.57(b); and
    (C) Any additional proxy soliciting materials, including press 
releases, personal solicitation instructions, radio or television 
scripts that the mutual holding company plans to use or furnish to the 
members, and a legal opinion indicating that any marketing materials 
comply with all applicable securities laws.
    (iv) An offering circular described in Sec. 239.58(a).
    (v) The documents and information required by Form AC. The mutual 
holding company may obtain Form AC from the appropriate Reserve Bank and 
the Board's Web site (http://www.federalreserve.gov).
    (vi) Where indicated, written consents, signed and dated, of any 
accountant, attorney, investment banker, appraiser, or other 
professional who prepared, reviewed, passed upon, or certified any 
statement, report, or valuation for use. See Form AC, instruction B(7).
    (vii) The business plan, submitted as a separately bound, 
confidential exhibit. See paragraph (c) of this section.
    (viii) Any additional information the Board requests.
    (2) The Board will not accept for filing, and will return, any 
application for conversion that is improperly executed, materially 
deficient, substantially incomplete, or that provides for unreasonable 
conversion expenses.
    (c) Filing an application for conversion. (1) The mutual holding 
company must file the application for conversion on Form AC with the 
appropriate Reserve Bank.
    (2) Upon receipt of an application under this subpart, the Reserve 
Bank will promptly furnish notice and a copy of the application to the 
primary federal supervisor of any subsidiary savings association. The 
primary supervisor will have 30 calendar days from the date of the 
letter giving notice in which to submit its views and recommendations to 
the Board.
    (d) Confidential treatment of portions of an application for 
conversion. (1) The Board makes all filings under this subpart available 
to the public, but may keep portions of the application for conversion 
confidential under paragraph (d)(2) of this section.
    (2) The mutual holding company may request the Board keep portions 
of the application confidential. To do so, the mutual holding company 
must separately bind and clearly designate as ``confidential'' any 
portion of the application for conversion that the mutual holding 
company deems confidential. The mutual holding company must provide a 
written statement specifying the grounds supporting the request for 
confidentiality. The Board will not treat as confidential the portion of 
the application describing how the mutual holding company plans to meet 
the Community Reinvestment Act (CRA) objectives. The CRA portion of the 
application may not incorporate by reference information contained in 
the confidential portion of the application.
    (3) The Board will determine whether confidential information must 
be made available to the public under 5 U.S.C. 552 and part 261 of this 
chapter. The Board will advise the mutual holding company before it 
makes information the mutual holding company designated as 
``confidential'' available to the public.
    (e) Amending an application for conversion. To amend an application 
for conversion, the mutual holding company must:
    (1) File an amendment with an appropriate facing sheet;
    (2) Number each amendment consecutively;
    (3) Respond to all issues raised by the Board; and
    (4) Demonstrate that the amendment conforms to all applicable 
regulations.
    (f) Notice of filing of application and comment process--(1) Public 
notice of an

[[Page 166]]

application for conversion. (i) The mutual holding company must publish 
a public notice of the application for conversion in accordance with the 
procedures in Sec. 238.14 of this chapter. The mutual holding company 
must simultaneously prominently post the notice in its home office and 
in all of the branch offices of its subsidiary savings associations.
    (ii) Promptly after publication, the mutual holding company must 
file a copy of any public notice and an affidavit of publication from 
each publisher with the appropriate Reserve Bank.
    (iii) If the Board does not accept the application for conversion 
under Sec. 239.55(g) and requires the mutual holding company to file a 
new application, the mutual holding company must publish and post a new 
notice and allow an additional 30 days for comment.
    (2) Public comments. Commenters may submit comments on the 
application in accordance with the procedures in Sec. 238.14 of this 
chapter. A commenter must file any comments with the appropriate Reserve 
Bank.
    (g) Board review of the application for conversion--(1) Board action 
on a conversion application. The Board may approve an application for 
conversion only if:
    (i) The conversion complies with this subpart;
    (ii) The mutual holding company will meet all applicable regulatory 
capital requirements after the conversion; and
    (iii) The conversion will not result in a taxable reorganization 
under the Internal Revenue Code of 1986, as amended.
    (2) Board review of appraisal. The Board will review the appraisal 
required by paragraph (b)(1)(ii) of this section in determining whether 
to approve the application. The Board will review the appraisal under 
the following requirements.
    (i) Independent persons experienced and expert in corporate 
appraisal, and acceptable to the Board, must prepare the appraisal 
report.
    (ii) An affiliate of the appraiser may serve as an underwriter or 
selling agent, if the mutual holding company ensures that the appraiser 
is separate from the underwriter or selling agent affiliate and the 
underwriter or selling agent affiliate does not make recommendations or 
affect the appraisal.
    (iii) The appraiser may not receive any fee in connection with the 
conversion other than for appraisal services.
    (iv) The appraisal report must include a complete and detailed 
description of the elements of the appraisal, a justification for the 
appraisal methodology, and sufficient support for the conclusions.
    (v) If the appraisal is based on a capitalization of the pro forma 
income, it must indicate the basis for determining the income to be 
derived from the sale of shares, and demonstrate that the earnings 
multiple used is appropriate, including future earnings growth 
assumptions.
    (vi) If the appraisal is based on a comparison of the shares with 
outstanding shares of existing stock associations, the existing stock 
associations must be reasonably comparable in size, market area, 
competitive conditions, risk profile, profit history, and expected 
future earnings.
    (vii) The Board may decline to process the application for 
conversion and deem it materially deficient or substantially incomplete 
if the initial appraisal report is materially deficient or substantially 
incomplete.
    (viii) The mutual holding company may not represent or imply that 
the Board has approved the appraisal.
    (3) Board review of compliance record. The Board will review the 
compliance record of the subsidiary savings association under the 
regulations applicable to the savings association and the business plan 
to determine how the conversion will affect the convenience and needs of 
its communities.
    (i) Based on this review, the Board may approve the application, 
deny the application, or approve the application on the condition that 
the resulting stock holding company will improve the CRA performance or 
will address the particular credit or lending needs of the communities 
that it will serve.
    (ii) The Board may deny the application if the business plan does 
not demonstrate that the proposed use of conversion proceeds will help 
the resulting stock holding company to meet the

[[Page 167]]

credit and lending needs of the communities that the resulting stock 
holding company will serve.
    (4) The Board may request that the mutual holding company amend the 
application if further explanation is necessary, material is missing, or 
material must be corrected.
    (5) The Board will deny the application if the application does not 
meet the requirements of this subpart, unless the Board waives the 
requirement under Sec. 239.50(c).
    (h) Judicial review. (1) Any person aggrieved by the Board's final 
action on the application for conversion may ask the court of appeals of 
the United States for the circuit in which the principal office or 
residence of such person is located, or the U.S. Court of Appeals for 
the District of Columbia Circuit, to review the action under 12 U.S.C. 
1467a(j), which provisions shall apply in all respects as if such final 
action were an order, subject to paragraph (h)(2) of this section.
    (2) To obtain court review of the action, the aggrieved person must 
file a written petition requesting that the court modify, terminate, or 
set aside the final Board action. The aggrieved person must file the 
petition with the court within the later of 30 days after the Board 
publishes notice of its final action in the Federal Register or 30 days 
after the mutual holding company mails the proxy statement to its 
members under Sec. 239.56(c).



Sec. 239.56  Vote by members.

    (a) Mutual member approval of the plan of conversion. (1) After the 
Board approves the plan of conversion, the mutual holding company must 
submit the plan of conversion to its members for approval. The mutual 
holding company must obtain this approval at a meeting of its members.
    (2) The members must approve the plan of conversion by a majority of 
the total outstanding votes.
    (3) The members may vote in person or by proxy.
    (4) The mutual holding company may notify eligible account holders 
or supplemental eligible account holders who are not voting members of 
the proposed conversion. The mutual holding company may include only the 
information in Sec. 239.54(c) in the notice.
    (b) Eligibility to vote for the plan of conversion. The mutual 
holding company determines members' eligibility to vote by setting a 
voting record date. The mutual holding company must set a voting record 
date that is not more than 60 days nor less than 20 days before the 
meeting.
    (c) Notifying members of the meeting. (1) The mutual holding company 
must notify the members of the meeting to consider the conversion by 
sending the members a proxy statement.
    (2) The mutual holding company must notify its members 20 to 45 days 
before the meeting.
    (3) The mutual holding company must also notify each beneficial 
holder of an account at any subsidiary savings association held in a 
fiduciary capacity:
    (i) If the subsidiary savings association is a federal association 
and the name of the beneficial holder is disclosed on the records of the 
subsidiary savings association; or
    (ii) If the subsidiary savings association is a state-chartered 
association and the beneficial holder possesses voting rights under 
state law.
    (d) Submissions to the Board after the members' meeting. (1) 
Promptly after the members' meeting, the mutual holding company must 
file all of the following information with the appropriate Reserve Bank:
    (i) A certified copy of each adopted resolution on the conversion.
    (ii) The total votes eligible to be cast.
    (iii) The total votes represented in person or by proxy.
    (iv) The total votes cast in favor of and against each matter.
    (v) The percentage of votes necessary to approve each matter.
    (vi) An opinion of counsel that the mutual holding company conducted 
the members' meeting in compliance with all applicable state or federal 
laws and regulations.
    (2) Promptly after completion of the conversion, the mutual holding 
company must submit to the appropriate Reserve Bank an opinion of 
counsel that the mutual holding company has

[[Page 168]]

complied with all laws applicable to the conversion.



Sec. 239.57  Proxy solicitation.

    (a) Applicability of proxy solicitation provisions. (1) The mutual 
holding company must comply with these proxy solicitation provisions 
when the mutual holding company provides proxy solicitation material to 
members for the meeting to vote on the plan of conversion.
    (2) Members of the mutual holding company must comply with these 
proxy solicitation provisions when they provide proxy solicitation 
materials to members for the meeting to vote on the conversion, pursuant 
to paragraph (f) of this section except where:
    (i) The member solicits 50 people or fewer and does not solicit 
proxies on behalf of the mutual holding company; or
    (ii) The member solicits proxies through newspaper advertisements 
after the board of directors adopts the plan of conversion. Any 
newspaper advertisements may include only the following information:
    (A) The name of the mutual holding company;
    (B) The reason for the advertisement;
    (C) The proposal or proposals to be voted upon;
    (D) Where a member may obtain a copy of the proxy solicitation 
material; and
    (E) A request for the members of the mutual holding company to vote 
at the meeting.
    (b) Form of proxy. The form of proxy must include all of the 
following:
    (1) A statement in bold face type stating that management is 
soliciting the proxy.
    (2) Blank spaces where the member must date and sign the proxy.
    (3) Clear and impartial identification of each matter or group of 
related matters that members will vote upon. It must include any 
proposed charitable contribution as an item to be voted on separately.
    (4) The phrase ``Revocable Proxy'' in bold face type (at least 18 
point).
    (5) A description of any charter or state law requirement that 
restricts or conditions votes by proxy.
    (6) An acknowledgment that the member received a proxy statement 
before he or she signed the form of proxy.
    (7) The date, time, and the place of the meeting, when available.
    (8) A way for the member to specify by ballot whether he or she 
approves or disapproves of each matter that members will vote upon.
    (9) A statement that management will vote the proxy in accordance 
with the member's specifications.
    (10) A statement in bold face type indicating how management will 
vote the proxy if the member does not specify a choice for a matter.
    (c) Permissible use of proxies. (1) The mutual holding company may 
not use previously executed proxies for the plan of conversion vote. If 
members consider the plan of conversion at an annual meeting, the mutual 
holding company may vote proxies obtained through other proxy 
solicitations only on matters not related to the plan of conversion.
    (2) The mutual holding company may vote a proxy obtained under this 
subpart on matters that are incidental to the conduct of the meeting. 
The mutual holding company or its management may not vote a proxy 
obtained under this subpart at any meeting other than the meeting (or 
any adjournment of the meeting) to vote on the plan of conversion.
    (d) Proxy statement requirements--(1) Content requirements. The 
mutual holding company must prepare the proxy statement in compliance 
with this subpart and Form PS. The mutual holding company may obtain 
Form PS from the appropriate Reserve Bank and the Board's Web site 
(http://www.federalreserve.gov).
    (2) Other requirements. (i) The Board will review the proxy 
solicitation material in its review of the application for conversion.
    (ii) The mutual holding company must provide a written proxy 
statement to the members before or at the same time the mutual holding 
company provides any other soliciting material. The mutual holding 
company must mail proxy solicitation material to the members no later 
than ten days after the Board approves the conversion.

[[Page 169]]

    (e) Filing revised proxy materials. (1) The mutual holding company 
must file revised proxy materials as an amendment to the application for 
conversion.
    (2) To revise the proxy solicitation materials, the mutual holding 
company must file:
    (i) Revised proxy materials as required by Form PS;
    (ii) Revised form of proxy, if applicable; and
    (iii) Any additional proxy solicitation material subject to 
paragraph (d) of this section.
    (3) The mutual holding company must clearly indicate changes from 
the prior filing.
    (4) The mutual holding company must file a definitive copy of all 
proxy solicitation material, in the form in which the mutual holding 
company furnishes the material to the members. The mutual holding 
company must file no later than the date that it sends or gives the 
proxy solicitation material to the members. The mutual holding company 
must indicate the date that it plans to release the materials.
    (5) Unless the Board requests the mutual holding company to do so, 
the mutual holding company does not have to file copies of replies to 
inquiries from the members or copies of communications that merely 
request members to sign and return proxy forms.
    (f) Mailing proxy solicitation material. (1) The mutual holding 
company must mail the member's proxy solicitation material if:
    (i) The board of directors adopted a plan of conversion;
    (ii) A member requests in writing that the mutual holding company 
mail the proxy solicitation material; and
    (iii) The member agrees to defray reasonable expenses of the mutual 
holding company.
    (2) As soon as practicable after the mutual holding company receives 
a request under paragraph (f)(1) of this section, the mutual holding 
company must mail or otherwise furnish the following information to the 
member:
    (i) The approximate number of members that the mutual holding 
company solicited or will solicit, or the approximate number of members 
of any group of account holders that the member designates; and
    (ii) The estimated cost of mailing the proxy solicitation material 
for the member.
    (3) The mutual holding company must mail proxy solicitation material 
to the designated members promptly after the member furnishes the 
materials, envelopes (or other containers), and postage (or payment for 
postage) to the mutual holding company.
    (4) The mutual holding company is not responsible for the content of 
a member's proxy solicitation material.
    (5) A member may furnish other members its own proxy solicitation 
material, subject to the rules in this section.
    (g) Prohibited solicitations--(1) False or misleading statements. 
(i) No one may use proxy solicitation material for the members' meeting 
if the material contains any statement which, considering the time and 
the circumstances of the statement:
    (A) Is false or misleading with respect to any material fact;
    (B) Omits any material fact that is necessary to make the statements 
not false or misleading; or
    (C) Omits any material fact that is necessary to correct a statement 
in an earlier communication that has become false or misleading.
    (ii) No one may represent or imply that the Board determined that 
the proxy solicitation material is accurate, complete, not false or not 
misleading, or passed upon the merits of or approved any proposal.
    (2) Other prohibited solicitations. No person may solicit:
    (i) An undated or post-dated proxy;
    (ii) A proxy that states it will be dated after the date it is 
signed by a member;
    (iii) A proxy that is not revocable at will by the member; or
    (iv) A proxy that is part of another document or instrument.
    (3) If a solicitation violates this section, the Board may require 
remedial measures, including:
    (i) Correction of the violation by a retraction and a new 
solicitation;
    (ii) Rescheduling the members' meeting; or
    (iii) Any other actions necessary to ensure a fair vote.

[[Page 170]]

    (4) The Board may also bring an enforcement action against the 
violator for violations of this section.
    (h) Re-soliciting proxies. If the mutual holding company amends its 
application for conversion, the Board may require it to re-solicit 
proxies for the members' meeting as a condition of approval of the 
amendment.



Sec. 239.58  Offering circular.

    (a) Filing requirements. (1) The mutual holding company must prepare 
and file the offering circular with the appropriate Reserve Bank in 
compliance with this subpart and Form OC. The mutual holding company may 
obtain Form OC from the Reserve Bank and the Board's Web site (http://
www.federalreserve.gov).
    (2) The mutual holding company must condition the stock offering 
upon member approval of the plan of conversion.
    (3) The Board will review the Form OC and may comment on the 
included disclosures and financial statements.
    (4) The mutual holding company must file a revised offering 
circular, final offering circular, and any post-effective amendment to 
the final offering circular.
    (5) The Board will not approve the adequacy or accuracy of the 
offering circular or the disclosures.
    (b) Distribution of the offering circular. (1) The mutual holding 
company may distribute a preliminary offering circular at the same time 
as or after the mutual holding company mails the proxy statement to its 
members.
    (2) The mutual holding company must distribute the offering circular 
in accordance with this subpart and with all applicable securities laws.
    (3) The mutual holding company must distribute the offering circular 
to persons listed in the plan of conversion no later than ten days after 
the Board approves the conversion.
    (c) Post-effective amendments to the offering circular. (1) The 
mutual holding company must file a post-effective amendment to the 
offering circular with the Board when a material event or change of 
circumstance occurs.
    (2) After the Securities and Exchange Commission declares the post-
effective amendment effective, the mutual holding company must 
immediately deliver the amendment to each person who subscribed for or 
ordered shares in the offering.
    (3) The post-effective amendment must indicate that each person may 
increase, decrease, or rescind their subscription or order.
    (4) The post-effective offering period must remain open no less than 
10 days nor more than 20 days, unless the Board approves a longer 
rescission period.



Sec. 239.59  Offers and sales of stock.

    (a) Purchase priorities. The mutual holding company must offer to 
sell the conversion shares in the following order:
    (1) Eligible account holders.
    (2) Tax-qualified employee stock ownership plans.
    (3) Supplemental eligible account holders.
    (4) Other voting members who have subscription rights.
    (5) The community, the community and the general public, or the 
general public.
    (b) Offering conversion shares. (1) The mutual holding company may 
offer to sell the conversion shares if the Board approves the 
conversion, subject to compliance with requirements of the Securities 
and Exchange Commission.
    (2) The offer may commence at the same time as the proxy 
solicitation of the members begins.
    (c) Pricing conversion shares. (1) The conversion shares must be 
sold at a uniform price per share and at a total price that is equal to 
the estimated pro forma market value of the shares after conversion.
    (2) The maximum price must be no more than 15 percent above the 
midpoint of the estimated price range in the offering circular.
    (3) The minimum price must be no more than 15 percent below the 
midpoint of the estimated price range in the offering circular.
    (4) If the Board permits, the maximum price of conversion shares 
sold may be increased. The maximum price, as adjusted, must be no more 
than 15 percent above the maximum price computed under paragraph (c)(2) 
of this section.

[[Page 171]]

    (5) The maximum price must be between $5 and $50 per share.
    (6) The mutual holding company must include the estimated price in 
any preliminary offering circular.
    (d) Selling conversion shares. (1) The mutual holding company must 
distribute order forms to all eligible account holders, supplemental 
eligible account holders, and other voting members to enable them to 
subscribe for the conversion shares they are permitted under the plan of 
conversion. The mutual holding company may either send the order forms 
with the offering circular or after it distributes the offering 
circular.
    (2) The mutual holding company may sell the conversion shares in a 
community offering, a public offering, or both. The mutual holding 
company may begin the community offering, the public offering, or both 
at any time during the subscription offering or upon conclusion of the 
subscription offering.
    (3) The mutual holding company may pay underwriting commissions 
(including underwriting discounts). The Board may object to the payment 
of unreasonable commissions. The mutual holding company may reimburse an 
underwriter for accountable expenses in a subscription offering if the 
public offering is limited. If no public offering occurs, the mutual 
holding company may pay an underwriter a consulting fee. The Board may 
object to the payment of unreasonable consulting fees.
    (4) If the mutual holding company conducts the community offering, 
the public offering, or both at the same time as the subscription 
offering, it must fill all subscription orders first.
    (5) The mutual holding company must prepare the order form in 
compliance with this subpart and Form OF. The mutual holding company may 
obtain Form OF from the Reserve Bank and from the Board's Web site 
(www.federalreserve.gov).
    (e) Prohibited sales practices. (1) In connection with offers, 
sales, or purchases of conversion shares under this subpart, the mutual 
holding company and its directors, officers, agents, or employees may 
not:
    (i) Employ any device, scheme, or artifice to defraud;
    (ii) Obtain money or property by means of any untrue statement of a 
material fact or any omission of a material fact necessary to make the 
statements, in light of the circumstances under which they were made, 
not misleading; or
    (iii) Engage in any act, transaction, practice, or course of 
business that operates or would operate as a fraud or deceit upon a 
purchaser or seller.
    (2) During the conversion, no person may:
    (i) Transfer, or enter into any agreement or understanding to 
transfer, the legal or beneficial ownership of subscription rights for 
the conversion shares or the underlying securities to the account of 
another;
    (ii) Make any offer, or any announcement of an offer, to purchase 
any of the conversion shares from anyone but the mutual holding company; 
or
    (iii) Knowingly acquire more than the maximum purchase allowable 
under the plan of conversion.
    (3) The restrictions in paragraphs (e)(2)(i) and (e)(2)(ii) of this 
section do not apply to offers for more than 10 percent of any class of 
conversion shares by:
    (i) An underwriter or a selling group, acting on behalf of the 
mutual holding company or resulting stock holding company, that makes 
the offer with a view toward public resale; or
    (ii) One or more of the tax-qualified employee stock ownership plans 
so long as the plan or plans do not beneficially own more than 25 
percent of any class of the equity securities in the aggregate.
    (4) Any person that violates the restrictions in paragraphs 
(e)(2)(i) and (e)(2)(ii) of this section may face prosecution or other 
legal action.
    (f) Payment for conversion shares. (1) A subscriber may purchase 
conversion shares with cash, by a withdrawal from a savings account, or 
a withdrawal from a certificate of deposit. If a subscriber purchases 
conversion shares by a withdrawal from a certificate of deposit, the 
mutual holding company or its subsidiary savings association may not 
assess a penalty for the withdrawal.

[[Page 172]]

    (2) The mutual holding company may not extend credit to any person 
to purchase the conversion shares.
    (g) Interest on payments for conversion shares. (1) The mutual 
holding company or its subsidiary savings association must pay interest 
from the date it receives a payment for conversion shares until the date 
it completes or terminates the conversion. The mutual holding company or 
its subsidiary savings association must pay interest at no less than the 
passbook rate for amounts paid in cash, check, or money order.
    (2) If a subscriber withdraws money from a savings account to 
purchase conversion shares, the mutual holding company or its subsidiary 
savings association must pay interest on the payment until the mutual 
holding company completes or terminates the conversion as if the 
withdrawn amount remained in the account.
    (3) If a depositor fails to maintain the applicable minimum balance 
requirement because he or she withdraws money from a certificate of 
deposit to purchase conversion shares, the mutual holding company or its 
subsidiary savings association may cancel the certificate and pay 
interest at no less than the passbook rate on any remaining balance.
    (h) Subscription rights for each eligible account holder and each 
supplemental eligible account holder. (1) The mutual holding company 
must give each eligible account holder subscription rights to purchase 
conversion shares in an amount equal to the greater of:
    (i) The maximum purchase limitation established for the community 
offering or the public offering under paragraph (p) of this section;
    (ii) One-tenth of one percent of the total stock offering; or
    (iii) Fifteen times the following number: The total number of 
conversion shares that the mutual holding company will issue, multiplied 
by the following fraction: the numerator is the total qualifying deposit 
of the eligible account holder, and the denominator is the total 
qualifying deposits of all eligible account holders. The mutual holding 
company must round down the product of this multiplied fraction to the 
next whole number.
    (2) The mutual holding company must give subscription rights to 
purchase shares to each supplemental eligible account holder in the same 
amount as described in paragraph (h)(1) of this section, except that the 
mutual holding company must compute the fraction described in paragraph 
(h)(1)(iii) of this section as follows: the numerator is the total 
qualifying deposit of the supplemental eligible account holder, and the 
denominator is the total qualifying deposits of all supplemental 
eligible account holders.
    (i) Officers, directors, and their associates as eligible account 
holders. The officers, directors, and their associates of the mutual 
holding company and subsidiary savings association may be eligible 
account holders. However, if an officer, director, or his or her 
associate receives subscription rights based on increased deposits in 
the year before the eligibility record date, the mutual holding company 
must subordinate subscription rights for these deposits to subscription 
rights exercised by other eligible account holders.
    (j) Other voting members eligible to purchase conversion shares. (1) 
The mutual holding company must give rights to purchase the conversion 
shares in the conversion to voting members who are neither eligible 
account holders nor supplemental eligible account holders. The mutual 
holding company must allocate rights to each voting member that are 
equal to the greater of:
    (i) The maximum purchase limitation established for the community 
offering and the public offering under paragraph (p) of this section; or
    (ii) One-tenth of one percent of the total stock offering.
    (2) The mutual holding company must subordinate the voting members' 
rights to the rights of eligible account holders, tax-qualified employee 
stock ownership plans, and supplemental eligible account holders.
    (k) Purchase limitations for officers, directors, and their 
associates. (1) When the mutual holding company converts, the officers, 
directors, and their associates of the mutual holding company and 
subsidiary savings association may not purchase, in the aggregate, more 
than the following percentage of the total stock offering:

[[Page 173]]



------------------------------------------------------------------------
                                                            Officer and
                                                             director
                    Institution size                         purchases
                                                             (percent)
------------------------------------------------------------------------
$50,000,000 or less.....................................              35
$50,000,001-100,000,000.................................              34
$100,000,001-150,000,000................................              33
$150,000,001-200,000,000................................              32
$200,000,001-250,000,000................................              31
$250,000,001-300,000,000................................              30
$300,000,001-350,000,000................................              29
$350,000,001-400,000,000................................              28
$400,000,001-450,000,000................................              27
$450,000,001-500,000,000................................              26
Over $500,000,000.......................................              25
------------------------------------------------------------------------

    (2) The purchase limitations in this section do not apply to shares 
held in tax-qualified employee stock benefit plans that are attributable 
to the officers, directors, and their associates.
    (l) Allocating conversion shares in the event of oversubscription. 
(1) If the conversion shares are oversubscribed by the eligible account 
holders, the mutual holding company must allocate shares among the 
eligible account holders so that each, to the extent possible, may 
purchase 100 shares.
    (2) If the conversion shares are oversubscribed by the supplemental 
eligible account holders, the mutual holding company must allocate 
shares among the supplemental eligible account holders so that each, to 
the extent possible, may purchase 100 shares.
    (3) If a person is an eligible account holder and a supplemental 
eligible account holder, the mutual holding company must include the 
eligible account holder's allocation in determining the number of 
conversion shares that the mutual holding company may allocate to the 
person as a supplemental eligible account holder.
    (4) For conversion shares that the mutual holding company does not 
allocate under paragraphs (l)(1) and (l)(2) of this section, the mutual 
holding company must allocate the shares among the eligible or 
supplemental eligible account holders equitably, based on the amounts of 
qualifying deposits. The mutual holding company must describe this 
method of allocation in its plan of conversion.
    (5) If shares remain after the mutual holding company has allocated 
shares as provided in paragraphs (l)(1) and (l)(2) of this section, and 
if the voting members oversubscribe, the mutual holding company must 
allocate the conversion shares among those members equitably. The mutual 
holding company must describe the method of allocation in its plan of 
conversion.
    (m) Employee stock ownership plan purchase of conversion shares. (1) 
The tax-qualified employee stock ownership plan of the mutual holding 
company may purchase up to 10 percent of the total offering of the 
conversion shares.
    (2) If the Board approves a revised stock valuation range as 
described in paragraph (c)(5) of this section, and the final conversion 
stock valuation range exceeds the former maximum stock offering range, 
the mutual holding company may allocate conversion shares to the tax-
qualified employee stock ownership plan, up to the 10 percent limit in 
paragraph (m)(1) of this section.
    (3) If the tax-qualified employee stock ownership plan is not able 
to or chooses not to purchase stock in the offering, it may, with prior 
Board approval and appropriate disclosure in the offering circular, 
purchase stock in the open market, or purchase authorized but unissued 
conversion shares.
    (4) The mutual holding company may include stock contributed to a 
charitable organization in the conversion in the calculation of the 
total offering of conversion shares under paragraphs (m)(1) and (m)(2) 
of this section, unless the Board objects on supervisory grounds.
    (n) Purchase limitations. (1) The mutual holding company may limit 
the number of shares that any person, group of associated persons, or 
persons otherwise acting in concert, may subscribe to up to five percent 
of the total stock sold.
    (2) If the mutual holding company sets a limit of five percent under 
paragraph (n)(1) of this section, it may modify that limit with Board 
approval to provide that any person, group of associated persons, or 
persons otherwise acting in concert subscribing for five percent, may 
purchase between five and ten percent as long as the aggregate amount 
that the subscribers purchase does not exceed 10 percent of the total 
stock offering.
    (3) The mutual holding company may require persons exercising 
subscription rights to purchase a minimum number

[[Page 174]]

of conversion shares. The minimum number of shares must equal the lesser 
of the number of shares obtained by a $500 subscription or 25 shares.
    (4) In setting purchase limitations under this section, the mutual 
holding company may not aggregate conversion shares attributed to a 
person in the tax-qualified employee stock ownership plan with shares 
purchased directly by, or otherwise attributable to, that person.
    (o) Purchase preference for persons in the local community. (1) In 
the subscription offering, subject to the purchase priorities set forth 
in paragraph (a) of this section, the mutual holding company may give a 
purchase preference to eligible account holders, supplemental eligible 
account holders, and voting members residing in the local community.
    (2) In the community offering, the mutual holding company must give 
a purchase preference to natural persons residing in the local 
community.
    (p) Conditions on community offerings and public offerings. (1) If 
the mutual holding company offers conversion shares in a community 
offering, a public offering, or both, it must offer and sell the stock 
to achieve a widespread distribution of the stock.
    (2) If the mutual holding company offers shares in a community 
offering, a public offering, or both, it must first fill orders for the 
stock up to a maximum of two percent of the conversion stock on a basis 
that will promote a widespread distribution of stock. The mutual holding 
company must allocate any remaining shares on an equal number of shares 
per order basis until it fills all orders.



Sec. 239.60  Completion of the offering.

    (a) Deadline for completing the sale of stock. The mutual holding 
company must complete all sales of the stock within 45 calendar days 
after the last day of the subscription period, unless the offering is 
extended under paragraph (b) of this section.
    (b) Offering period extension. (1) The mutual holding company must 
request, in writing, an extension of any offering period.
    (2) The Board may grant extensions of time to sell the shares. The 
Board will not grant any single extension of more than 90 days.
    (3) If the Board grants the request for an extension of time, the 
mutual holding company must provide a post-effective amendment to the 
offering circular under Sec. 239.58(c) to each person who subscribed 
for or ordered stock. The amendment must indicate that the Board 
extended the offering period and that each person who subscribed for or 
ordered stock may increase, decrease, or rescind their subscription or 
order within the time remaining in the extension period.



Sec. 239.61  Completion of the conversion.

    (a) Completion of the conversion. (1) In the plan of conversion, the 
mutual holding company must set a date by which the conversion must be 
completed. This date must not be more than 24 months from the date that 
the members approve the plan of conversion. The date, once set, may not 
be extended by the mutual holding company or by the Board. The mutual 
holding company must terminate the conversion if it is not completed by 
that date.
    (2) The conversion is complete on the date that the mutual holding 
company accepts the offers for stock of the resulting stock holding 
company.
    (b) Termination of the conversion. (1) The members may terminate the 
conversion by failing to approve the conversion at the members' meeting.
    (2) The mutual holding company may terminate the conversion before 
the members' meeting.
    (3) The mutual holding company may terminate the conversion after 
the members' meeting only if the Board concurs.
    (c) Voting rights for stockholders following conversion. The 
resulting stock holding company must provide the stockholders with 
exclusive voting rights.
    (d) Rights of savings account holders. The resulting stock holding 
company must provide a liquidation account for each eligible and 
supplemental eligible account holder under Sec. 239.62(a)(1)-(3).



Sec. 239.62  Liquidation accounts.

    (a) Liquidation account. (1) A liquidation account represents the 
potential interest of eligible account holders and

[[Page 175]]

supplemental eligible account holders in the mutual holding company's 
net worth at the time of conversion. The resulting stock holding company 
must maintain a sub-account to reflect the interest of each account 
holder.
    (2) Before the resulting stock holding company may provide a 
liquidation distribution to common stockholders, the resulting stock 
holding company must give a liquidation distribution to those eligible 
account holders and supplemental eligible account holders who hold 
savings accounts from the time of conversion until liquidation.
    (3) The resulting stock holding company may not record the 
liquidation account in the financial statements. The resulting stock 
holding company must disclose the liquidation account in the footnotes 
to the financial statements.
    (4) The initial balance of the liquidation account is the net worth 
in the statement of financial condition included in the final offering 
circular.
    (b) Liquidation sub-accounts. (1)(i) The resulting stock holding 
company determines the initial sub-account balance for a savings account 
held by an eligible account holder by multiplying the initial balance of 
the liquidation account by the following fraction: The numerator is the 
qualifying deposit in the savings account on the eligibility record 
date. The denominator is total qualifying deposits of all eligible 
account holders on that date.
    (ii) The resulting stock holding company determines the initial sub-
account balance for a savings account held by a supplemental eligible 
account holder by multiplying the initial balance of the liquidation 
account by the following fraction: The numerator is the qualifying 
deposit in the savings account on the supplemental eligibility record 
date. The denominator is total qualifying deposits of all supplemental 
eligible account holders on that date.
    (iii) If an account holder holds a savings account on the 
eligibility record date and a separate savings account on the 
supplemental eligibility record date, the resulting stock holding 
company must compute separate sub-accounts for the qualifying deposits 
in the savings account on each record date.
    (2) The resulting stock holding company may not increase the initial 
sub-account balances. The resulting stock holding company must decrease 
the initial balance under Sec. 239.62(d) as depositors reduce or close 
their accounts.
    (c) Retention of voting rights based on liquidation sub-accounts. 
Eligible account holders or supplemental eligible account holders do not 
retain any voting rights based on their liquidation sub-accounts.
    (d) Adjusting liquidation sub-accounts. (1)(i) The resulting stock 
holding company must reduce the balance of an eligible account holder's 
or supplemental eligible account holder's sub-account if the deposit 
balance in the account holder's savings account at the close of business 
on any annual closing date, which for purposes of this section is the 
fiscal year end, after the relevant eligibility record dates is less 
than:
    (A) The deposit balance in the account holder's savings account at 
the close of business on any other annual closing date after the 
relevant eligibility record date; or
    (B) The qualifying deposits in the account holder's savings account 
on the relevant eligibility record date.
    (ii) The reduction must be proportionate to the reduction in the 
deposit balance.
    (2) If the resulting stock holding company reduces the balance of a 
liquidation sub-account, the resulting stock holding company may not 
subsequently increase it if the deposit balance increases.
    (3) The resulting stock holding company is not required to adjust 
the liquidation account and sub-account balances at each annual closing 
date if it maintains sufficient records to make the computations if a 
liquidation subsequently occurs.
    (4) The resulting stock holding company must maintain the 
liquidation sub-account for each account holder as long as the account 
holder maintains an account with the same social security number or tax 
identification number, as applicable.
    (5) If there is a complete liquidation, the resulting stock holding 
company must provide each account holder with a liquidation distribution 
in the amount of the sub-account balance.

[[Page 176]]

    (e) Liquidation defined. (1) For purposes of this subpart, a 
liquidation is a sale of the assets and settlement of the liabilities 
with the intent to cease operations and close. Upon liquidation, the 
resulting stock holding company must return the charter to the 
governmental agency that issued it. The government agency must cancel 
the charter.
    (2) A merger, consolidation, or similar combination or transaction 
with another depository institution, is not a liquidation. If the 
resulting stock holding company is involved in such a transaction, the 
surviving institution must assume the liquidation account.
    (f) Effect of liquidation on net worth. The liquidation account does 
not affect the net worth.



Sec. 239.63  Post-conversion.

    (a) Management stock benefit plans. (1) During the 12 months after 
the conversion, the resulting stock holding company may implement a 
stock option plan (Option Plan), an employee stock ownership plan or 
other tax-qualified employee stock benefit plan (collectively, ESOP), 
and a management recognition plan (MRP), provided the resulting stock 
holding company meets all of the following requirements.
    (i) The resulting stock holding company discloses the plans in the 
proxy statement and offering circular and indicates in the offering 
circular that there will be a separate shareholder vote on the Option 
Plan and the MRP at least six months after the conversion. No 
shareholder vote is required to implement the ESOP. The ESOP must be 
tax-qualified.
    (ii) The Option Plan does not exceed more than ten percent of the 
number of shares that the resulting stock holding company issued in the 
conversion.
    (iii)(A) The ESOP and MRP do not exceed, in the aggregate, more than 
ten percent of the number of shares that the resulting stock holding 
company issued in the conversion. If the resulting stock holding company 
has tangible capital of ten percent or more following the conversion, 
the Board may permit the ESOP and MRP to represent, in the aggregate, up 
to 12 percent of the number of shares issued in the conversion; and
    (B) The MRP does not exceed more than three percent of the number of 
shares that the resulting stock holding company issued in the 
conversion. If the resulting stock holding company has tangible capital 
of ten percent or more after the conversion, the Board may permit the 
MRP to represent up to four percent of the number of shares that the 
resulting stock holding company issued in the conversion.
    (iv) No individual receives more than 25 percent of the shares under 
any plan.
    (v) The directors who are not the officers do not receive more than 
five percent of the shares of the MRP or Option Plan individually, or 30 
percent of any such plan in the aggregate.
    (vi) The shareholders approve each of the Option Plan and the MRP by 
a majority of the total votes eligible to be cast at a duly called 
meeting before the resulting stock holding company establishes or 
implements the plan. The resulting stock holding company may not hold 
this meeting until six months after the conversion.
    (vii) When the resulting stock holding company distributes proxies 
or related material to shareholders in connection with the vote on a 
plan, the resulting stock holding company states that the plan complies 
with Board regulations and that the Board does not endorse or approve 
the plan in any way. The resulting stock holding company may not make 
any written or oral representations to the contrary.
    (viii) The resulting stock holding company does not grant stock 
options at less than the market price at the time of grant.
    (ix) The resulting stock holding company does not fund the Option 
Plan or the MRP at the time of the conversion.
    (x) The plan does not begin to vest earlier than one year after 
shareholders approve the plan, and does not vest at a rate exceeding 20 
percent per year.
    (xi) The plan permits accelerated vesting only for disability or 
death, or if the resulting stock holding company undergoes a change of 
control.
    (xii) The plan provides that the executive officers or directors 
must exercise or forfeit their options in the

[[Page 177]]

event the institution becomes critically undercapitalized under the 
applicable regulatory capital requirements, is subject to Board 
enforcement action, or receives a capital directive under Sec. 263.83 
of this chapter.
    (xiii) The resulting stock holding company files a copy of the 
proposed Option Plan or MRP with the Board and certifies to the Board 
that the plan approved by the shareholders is the same plan that the 
resulting stock holding company filed with, and disclosed in, the proxy 
materials distributed to shareholders in connection with the vote on the 
plan.
    (xiv) The resulting stock holding company files the plan and the 
certification with the Board within five calendar days after the 
shareholders approve the plan.
    (2) The resulting stock holding company may provide dividend 
equivalent rights or dividend adjustment rights to allow for stock 
splits or other adjustments to the stock in the ESOP, MRP, and Option 
Plan.
    (3) The restrictions in paragraph (a)(1) of this section do not 
apply to plans implemented more than 12 months after the conversion, 
provided that materials pertaining to any shareholder vote regarding 
such plans are not distributed within the 12 months after the 
conversion. If a plan adopted in conformity with paragraph (a)(1) of 
this section is amended more than 12 months following the conversion, 
the shareholders must ratify any material deviations to the requirements 
in paragraph (a)(1) of this section.
    (b) Restrictions on the sale of conversion shares by directors, 
officers, and their associates. (1) Directors and officers who purchase 
conversion shares may not sell the shares for one year after the date of 
purchase, except that in the event of the death of the officer or 
director, the successor in interest may sell the shares.
    (2) The resulting stock holding company must include notice of the 
restriction described in paragraph (b)(1) of this section on each 
certificate of stock that a director or officer purchases during the 
conversion or receives in connection with a stock dividend, stock split, 
or otherwise with respect to such restricted shares.
    (3) The resulting stock holding company must instruct the stock 
transfer agent about the transfer restrictions in this section.
    (4) For three years after the resulting stock holding company 
converts, the officers, directors, and their associates may purchase 
stock of the resulting stock holding company only from a broker or 
dealer registered with the Securities and Exchange Commission. However, 
the officers, directors, and their associates may engage in a negotiated 
transaction involving more than one percent of the outstanding stock, 
and may purchase stock through any of the management or employee stock 
benefit plans.
    (c) Repurchase of conversion shares. (1) The resulting stock holding 
company may not repurchase its shares in the first year after the 
conversion except:
    (i) In extraordinary circumstances, the resulting stock holding 
company may make open market repurchases of up to five percent of the 
outstanding stock in the first year after the conversion if the 
resulting stock holding company files a notice under paragraph (d)(1) of 
this section and the Board does not disapprove the repurchase. The Board 
will not approve such repurchases unless the repurchase meets the 
standards in paragraph (d)(3) of this section, and the repurchase is 
consistent with paragraph (c)(3) of this section.
    (ii) The resulting stock holding company may repurchase qualifying 
shares of a director or conduct a Board approved repurchase pursuant to 
an offer made to all shareholders of the stock holding company.
    (iii) Repurchases to fund management recognition plans that have 
been ratified by shareholders do not count toward the repurchase 
limitations in this section. Repurchases in the first year to fund such 
plans require prior written notification to the Board.
    (iv) Purchases to fund tax qualified employee stock benefit plans do 
not count toward the repurchase limitations in this section.
    (2) After the first year, the resulting stock holding company may 
repurchase

[[Page 178]]

the shares, subject to all other applicable regulatory and supervisory 
restrictions and paragraph (c)(3) of this section.
    (3) All stock repurchases are subject to the following restrictions.
    (i) The resulting stock holding company may not repurchase the 
shares if the repurchase will reduce its applicable capital levels below 
the amount required for the liquidation account under Sec. 239.62(a). 
The resulting stock holding company must comply with the capital 
distribution requirements of this subpart.
    (ii) The restrictions on share repurchases apply to a charitable 
organization under Sec. 239.64(b). The resulting stock holding company 
must aggregate purchases of shares by the charitable organization with 
the repurchases.
    (d) Board review of repurchase of conversion shares. (1) To 
repurchase stock in the first year following conversion, other than 
repurchases under paragraphs (c)(1)(iii) or (c)(1)(iv) of this section, 
the resulting stock holding company must file a written notice with the 
appropriate Reserve Bank. The resulting stock holding company must 
provide the following information:
    (i) The proposed repurchase program;
    (ii) The effect of the repurchases on the regulatory capital and 
other capital levels; and
    (iii) The purpose of the repurchases and, if applicable, an 
explanation of the extraordinary circumstances necessitating the 
repurchases.
    (2) The resulting stock holding company must file the notice with 
the appropriate Reserve Bank at least thirty days before the resulting 
stock holding company begins the repurchase program. The Board may 
extend its review of the notice for an additional sixty days.
    (3) The resulting stock holding company may not repurchase the 
shares if the Board objects to the repurchase program. The Board will 
not object to the repurchase program if:
    (i) The repurchase program will not adversely affect the financial 
condition of the resulting savings association;
    (ii) The resulting stock holding company submits sufficient 
information to evaluate the proposed repurchases;
    (iii) The resulting stock holding company demonstrate extraordinary 
circumstances and a compelling and valid business purpose for the share 
repurchases; and
    (iv) The repurchase program would not be contrary to other 
applicable regulations.
    (e) Declaring and paying dividends following conversion. The 
resulting stock holding company may declare or pay a dividend on its 
shares after it converts if:
    (1) The dividend will not reduce the regulatory capital below the 
amount required for the liquidation account under Sec. 239.62(a);
    (2) The resulting stock holding company complies with all applicable 
regulatory capital requirements after it declares or pays dividends;
    (3) The resulting stock holding company complies with the capital 
distribution requirements under this subpart; and
    (4) The resulting stock holding company does not return any capital, 
other than ordinary dividends, to purchasers during the term of the 
business plan submitted with the conversion.
    (f) Eligibility to acquire shares after conversion. (1) For three 
years after the resulting stock holding company converts, no person may, 
directly or indirectly, acquire or offer to acquire the beneficial 
ownership of more than ten percent of any class of the equity securities 
without the Board's prior written approval. If a person violates this 
prohibition, the resulting stock holding company may not permit the 
person to vote shares in excess of ten percent, and may not count the 
shares in excess of ten percent in any shareholder vote.
    (2) A person acquires beneficial ownership of more than ten percent 
of a class of shares when he or she holds any combination of the stock 
or revocable or irrevocable proxies under circumstances that give rise 
to a conclusive control determination or rebuttable control 
determination under Sec. Sec. 238.21(a) and (d) of this chapter. The 
Board will presume that a person has acquired shares if the acquiror 
entered into a binding written agreement for the transfer of shares. For 
purposes of this section, an offer is made when it is

[[Page 179]]

communicated. An offer does not include non-binding expressions of 
understanding or letters of intent regarding the terms of a potential 
acquisition.
    (3) Notwithstanding the restrictions in this section:
    (i) Paragraphs (f)(1) and (f)(2) of this section do not apply to any 
offer with a view toward public resale made exclusively to the resulting 
stock holding company, to the underwriters, or to a selling group acting 
on behalf of the resulting savings association.
    (ii) Unless the Board objects in writing, any person may offer or 
announce an offer to acquire up to one percent of any class of shares. 
In computing the one percent limit, the person must include all of his 
or her acquisitions of the same class of shares during the prior 12 
months.
    (iii) A corporation whose ownership is, or will be, substantially 
the same as the ownership may acquire or offer to acquire more than ten 
percent of the common stock, if it makes the offer or acquisition more 
than one year after the resulting stock holding company converts.
    (iv) One or more of the tax-qualified employee stock benefit plans 
may acquire the shares, if the plan or plans do not beneficially own 
more than 25 percent of any class of shares of the resulting savings 
association in the aggregate.
    (v) An acquiror does not have to file a separate application to 
obtain Board approval under paragraph (f)(1) of this section, if the 
acquiror files an application under part 238 of this chapter that 
specifically addresses the criteria listed under paragraph (f)(4) of 
this section and the resulting stock holding company does not oppose the 
proposed acquisition.
    (4) The Board may deny an application under paragraph (f)(1) of this 
section if the proposed acquisition:
    (i) Is contrary to the purposes of this subpart;
    (ii) Is manipulative or deceptive;
    (iii) Subverts the fairness of the conversion;
    (iv) Is likely to injure the resulting stock holding company;
    (v) Is inconsistent with the plan to meet the credit and lending 
needs of the proposed market area;
    (vi) Otherwise violates laws or regulations; or
    (vii) Does not prudently deploy the conversion proceeds.
    (g) Additional requirements that apply following conversion. After 
conversion, the resulting stock holding company must:
    (1) Promptly register the shares under the Securities Exchange Act 
of 1934 (15 U.S.C. 78a-78jj, as amended). The resulting stock holding 
company may not deregister the shares for three years.
    (2) Encourage and assist a market maker to establish and to maintain 
a market for the shares. A market maker for a security is a dealer who:
    (i) Regularly publishes bona fide competitive bid and offer 
quotations for the security in a recognized inter-dealer quotation 
system;
    (ii) Furnishes bona fide competitive bid and offer quotations for 
the security on request; or
    (iii) May effect transactions for the security in reasonable 
quantities at quoted prices with other brokers or dealers.
    (3) Use the best efforts to list the shares on a national or 
regional securities exchange or on the National Association of 
Securities Dealers Automated Quotation system.
    (4) File all post-conversion reports that the Board requires.



Sec. 239.64  Contributions to charitable organizations.

    (a) Forming a charitable organization as part of a conversion. When 
a mutual holding company converts to the stock form, it may form a 
charitable organization. Its contributions to the charitable 
organization are governed by the requirements of paragraphs (b) through 
(f) of this section.
    (b) Donating conversion shares or conversion proceeds to a 
charitable organization. Some of the conversion shares or proceeds may 
be contributed to a charitable organization if:
    (1) The plan of conversion provides for the proposed contribution;
    (2) The members approve the proposed contribution; and
    (3) The IRS either has approved, or approves within two years after 
formation, the charitable organization as a

[[Page 180]]

tax-exempt charitable organization under the Internal Revenue Code.
    (c) Member approval of charitable contributions. At the meeting to 
consider conversion of the mutual holding company, the members must 
separately approve by at least a majority of the total eligible votes, a 
contribution of conversion shares or proceeds. If the mutual holding 
company has a subsidiary holding company with minority shareholders, or 
if the subsidiary savings association has minority shareholders, and the 
mutual holding company is adding a charitable contribution as part of a 
second step stock conversion, it must also have the minority 
shareholders separately approve the charitable contribution by a 
majority of their total eligible votes.
    (d) Charitable organization contribution limits. A reasonable amount 
of conversion shares or proceeds may be contributed to a charitable 
organization, if the contribution will not exceed limits for charitable 
deductions under the Internal Revenue Code and the Board does not object 
on supervisory grounds. If the mutual holding company or resulting stock 
holding company is well-capitalized pursuant to Sec. 238.62 of this 
chapter, the Board generally will not object if it contributes an 
aggregate amount of eight percent or less of the conversion shares or 
proceeds.
    (e) Charitable organization requirements. The charitable 
organization's charter (or trust agreement) and gift instrument must 
provide that:
    (1) The charitable organization's primary purpose is to serve and 
make grants in the local community;
    (2) As long as the charitable organization controls shares, it must 
vote those shares in the same ratio as all other shares voted on each 
proposal considered by the shareholders;
    (3) For at least five years after its organization, one seat on the 
charitable organization's board of directors (or board of trustees) is 
reserved for an independent director (or trustee) from the local 
community. This director may not be the officer, director, or employee, 
or the affiliate's officer, director, or employee, and should have 
experience with local community charitable organizations and grant 
making; and
    (4) For at least five years after its organization, one seat on the 
charitable organization's board of directors (or board of trustees) is 
reserved for a director from the board of directors or the board of 
directors of an acquiror or resulting institution in the event of a 
merger or acquisition of the organization.
    (5) The Board may examine the charitable organization at the 
charitable organization's expense;
    (6) The charitable organization must comply with all supervisory 
directives that the Board imposes;
    (7) The charitable organization must annually provide the Board with 
a copy of the annual report that the charitable organization submitted 
to the IRS;
    (8) The charitable organization must operate according to written 
policies adopted by its board of directors (or board of trustees), 
including a conflict of interest policy; and
    (9) The charitable organization may not engage in self-dealing, and 
must comply with all laws necessary to maintain its tax-exempt status 
under the Internal Revenue Code.
    (f) Conflicts of interest involving the directors of the mutual 
holding company or resulting stock holding company. (1) An individual 
who is the director, officer, or employee, or a person who has the power 
to direct the management or policies, or otherwise owes a fiduciary duty 
to the mutual holding company or resulting stock holding company and who 
will serve as an officer, director, or employee of the charitable 
organization, is subject to the following obligations:
    (i) The individual must not advance their own personal or business 
interests, or those of others with whom the individual has a personal or 
business relationship, at the expense of the mutual holding company or 
resulting stock holding company;
    (ii) If the individual has an interest in a matter or transaction 
before the board of directors, the individual must:
    (A) Disclose to the board all material nonprivileged information 
relevant to the board's decision on the matter or transaction, including 
the existence, nature and extent of the individual's interests, and the 
facts known to the

[[Page 181]]

individual as to the matter or transaction under consideration;
    (B) Refrain from participating in the board's discussion of the 
matter or transaction; and
    (C) Recuse themselves from voting on the matter or transaction (if 
the individual is a director). See Form AC, which provides further 
information or operating plans and conflict of interest plans. The 
mutual holding company may obtain Form AC from the appropriate Reserve 
Bank and the Board's Web site at http://www.federalreserve.gov.
    (2) Before the board of directors may adopt a plan of conversion 
that includes a charitable organization, the mutual holding company must 
identify the directors that will serve on the charitable organization's 
board. These directors may not participate in the board's discussions 
concerning contributions to the charitable organization, and may not 
vote on the matter.
    (3) The stock certificates of shares contributed to the charitable 
organization or that the charitable organization otherwise acquires must 
bear the following legend: ``The board of directors must consider the 
shares that this stock certificate represents as voted in the same ratio 
as all other shares voted on each proposal considered by the 
shareholders, as long as the shares are controlled by the charitable 
organization.''
    (4) As long as the charitable organization controls shares, the 
resulting stock holding company must consider those shares as voted in 
the same ratio as all of the shares voted on each proposal considered by 
the shareholders.
    (5) After the stock offering is complete, the resulting stock 
holding company must submit an executed copy of the following documents 
to the appropriate Reserve Bank: the charitable organization's charter 
and bylaws (or trust agreement), operating plan (within six months after 
the stock offering), conflict of interest policy, and the gift 
instrument for the contributions of either stock or cash to the 
charitable organization.



Sec. 239.65  Voluntary supervisory conversions.

    (a) Voluntary supervisory conversion. (1) The mutual holding company 
must comply with this section and Sec. 239.66 to engage in a voluntary 
supervisory conversion. This subpart applies to all voluntary 
supervisory conversions under sections 10(o)(7) and 10(p) of the Home 
Owners' Loan Act (12 U.S.C. 1467a(o) and (p)).
    (2) Sections 239.50 through 239.64 also apply to a voluntary 
supervisory conversion, unless a requirement is clearly inapplicable.
    (b) Conducting a voluntary supervisory conversion. In conducting a 
voluntary supervisory conversion, the mutual holding company may:
    (1) Sell its shares to the public;
    (2) Convert into stock form by merging into a state-chartered 
corporation; or
    (3) Sell its shares directly to an acquiror, who may be an 
individual, company, depository institution, or depository institution 
holding company.
    (c) Member rights in a voluntary supervisory conversion. Members of 
the mutual holding company do not have the right to approve or 
participate in a voluntary supervisory conversion, and will not have any 
legal or beneficial ownership interests in the converted association, 
unless the Board provides otherwise. The members may have interests in a 
liquidation account, if one is established.
    (d) Eligibility for a voluntary supervisory conversion. A mutual 
holding company may be eligible to engage in a voluntary supervisory 
conversion if:
    (1) Either the mutual holding company or its subsidiary savings 
association is significantly undercapitalized under applicable 
regulatory capital requirements (or the mutual holding company or its 
subsidiary savings association is undercapitalized under applicable 
regulatory capital requirements and a standard conversion that would 
make it adequately capitalized is not feasible) and will be a viable 
entity following the conversion;
    (2) Severe financial conditions threaten stability of the mutual 
holding company, and a conversion is likely to improve its financial 
condition.

[[Page 182]]

    (e) A mutual holding company or its subsidiary savings association 
will be a viable entity following the conversion if it satisfies all of 
the following:
    (1) It will be adequately capitalized as a result of the conversion;
    (2) It, the proposed conversion, and its acquiror(s) comply with 
applicable supervisory policies;
    (3) The transaction is in the best interest of the mutual holding 
company and its subsidiary savings associations, and the best interest 
of the Deposit Insurance Fund and the public; and
    (4) The transaction will not injure or be detrimental to the mutual 
holding company and its subsidiary savings associations, the Deposit 
Insurance Fund, or the public interest.
    (f) Plan of voluntary supervisory conversion. A majority of the 
board of directors of the mutual holding company must approve a plan of 
voluntary supervisory conversion. The mutual holding company must 
include all of the following information in the plan of voluntary 
supervisory conversion.
    (1) The name and address of the mutual holding company.
    (2) The name, address, date and place of birth, and social security 
number or tax identification number, as applicable, of each proposed 
purchaser of conversion shares and a description of that purchaser's 
relationship to the mutual holding company.
    (3) The title, per-unit par value, number, and per-unit and 
aggregate offering price of shares that the mutual holding company will 
issue.
    (4) The number and percentage of shares that each investor will 
purchase.
    (5) The aggregate number and percentage of shares that each 
director, officer, and any affiliates or associates of the director or 
officer will purchase.
    (6) A description of any liquidation account.
    (7) Certified copies of all resolutions of the board of directors 
relating to the conversion.
    (g) Voluntary supervisory conversion application. The mutual holding 
company must include all of the following information and documents in a 
voluntary supervisory conversion application to the Board under this 
subpart:
    (1) Eligibility. (i) Evidence establishing that the mutual holding 
company meets the eligibility requirements under paragraph (d) of this 
section.
    (ii) An opinion of qualified, independent counsel or an independent, 
certified public accountant regarding the tax consequences of the 
conversion, or an IRS ruling indicating that the transaction qualifies 
as a tax-free reorganization.
    (2) Plan of conversion. A plan of voluntary supervisory conversion 
that complies with paragraph (e) of this section.
    (3) Business plan. A business plan that complies with Sec. 
239.53(b), when required by the Board.
    (4) Financial data. (i) The most recent audited financial statements 
and Thrift Financial Report. The mutual holding company must explain how 
its current capital levels or the capital levels of its subsidiary 
savings associations make it eligible to engage in a voluntary 
supervisory conversion under paragraph (d) of this section.
    (ii) A description of the estimated conversion expenses.
    (iii) Evidence supporting the value of any non-cash asset 
contributions. Appraisals must be acceptable to the Board and the non-
cash asset must meet all other Board policy guidelines.
    (iv) Pro forma financial statements that reflect the effects of the 
transaction. The mutual holding company must identify the tangible, 
core, and risk-based capital levels and show the adjustments necessary 
to compute the capital levels. The mutual holding company must prepare 
the pro forma statements in conformance with Board regulations and 
policy.
    (5) Proposed documents. (i) The proposed charter and bylaws.
    (ii) The proposed stock certificate form.
    (6) Agreements. (i) A copy of any agreements between the mutual 
holding company and proposed purchasers.
    (ii) A copy and description of all existing and proposed employment 
contracts. The mutual holding company must describe the term, salary, 
and severance provisions of the contract, the identity and background of 
the officer or employee to be employed, and

[[Page 183]]

the amount of any conversion shares to be purchased by the officer or 
employee or his or her affiliates or associates.
    (7) Related applications. (i) All filings required under the 
securities offering rules of subpart E of this part.
    (ii) Any required Holding Company Act application or Control Act 
notice under part 238 of this chapter.
    (iii) A subordinated debt application, if applicable.
    (iv) Applications for permission to organize a stock savings and 
loan holding company and for approval of a merger.
    (v) A statement describing any other applications required under 
federal or state banking laws for all transactions related to the 
conversion, copies of all dispositive documents issued by regulatory 
authorities relating to the applications, and, if requested by the 
Board, copies of the applications and related documents.
    (8) Waiver request. A description of any of the features of the 
application that do not conform to the requirements of this subpart, 
including any request for waiver of any of these requirements.
    (h) Offers and sales of stock. If the mutual holding company 
converts under this subpart, the conversion shares must be offered and 
sold in compliance with Sec. 239.59.
    (i) Post-conversion acquisition of shares. For three years after the 
completion of a voluntary supervisory conversion, neither the resulting 
stock holding company nor the principal shareholder(s) may acquire 
shares from minority shareholders without the Board's prior approval.



Sec. 239.66  Board review of the voluntary supervisory conversion 
application.

    (a) Board review of a voluntary supervisory conversion application. 
The Board will generally approve the application to engage in a 
voluntary supervisory conversion unless it determines:
    (1) The mutual holding company does not meet the eligibility 
requirements for a voluntary supervisory conversion under Sec. Sec. 
239.65(d) or because the proceeds from the sale of the conversion stock, 
less the expenses of the conversion, would be insufficient to satisfy 
any applicable viability requirement;
    (2) The transaction is detrimental to or would cause potential 
injury to the mutual holding company, its subsidiary savings 
association, or the Deposit Insurance Fund or is contrary to the public 
interest;
    (3) The mutual holding company or the acquiror, or the controlling 
parties or directors and officers of the mutual holding company or the 
acquiror, have engaged in unsafe or unsound practices in connection with 
the voluntary supervisory conversion; or
    (4) The mutual holding company fails to justify an employment 
contract incidental to the conversion, or the employment contract will 
be an unsafe or unsound practice or represent a sale of control. In a 
voluntary supervisory conversion, the Board generally will not approve 
employment contracts of more than one year for the existing management.
    (b) Conditions the Board may impose on an approval. (1) The Board 
will condition approval of a voluntary supervisory conversion 
application on all of the following.
    (i) The conversion stock sale must be complete within three months 
after the Board approves the application. The Board may grant an 
extension for good cause.
    (ii) The mutual holding company and the resulting stock holding 
company must comply with all filing requirements of subpart E of this 
part.
    (iii) The mutual holding company must submit an opinion of 
independent legal counsel indicating that the sale of the shares 
complies with all applicable state securities law requirements.
    (iv) The mutual holding company and the resulting stock holding 
company must comply with all applicable laws, rules, and regulations.
    (v) The mutual holding company and the resulting stock holding 
company must satisfy any other requirements or conditions the Board may 
impose.
    (2) The Board may condition approval of a voluntary supervisory 
conversion application on either of the following:
    (i) The mutual holding company and the resulting stock holding 
company must satisfy any conditions and restrictions the Board imposes 
to prevent

[[Page 184]]

unsafe or unsound practices, to protect the Deposit Insurance Fund and 
the public interest, and to prevent potential injury or detriment to the 
mutual holding company before and after the conversion. The Board may 
impose these conditions and restrictions on the mutual holding company 
and the resulting stock holding company (before and after the 
conversion), the acquiror, controlling parties, or directors and 
officers of the mutual holding company or the acquiror; or
    (ii) The mutual holding company or the resulting stock holding 
company must infuse a larger amount of capital, if necessary, for safety 
and soundness reasons.



    Sec. Appendix A to Part 239--Mutual Holding Company Model Charter

                 FEDERAL MUTUAL HOLDING COMPANY CHARTER

    Section 1: Corporate title. The name of the mutual holding company 
is ----(the ``Mutual Holding Company'').
    Section 2: Duration. The duration of the Mutual Holding Company is 
perpetual.
    Section 3: Purpose and powers. The purpose of the Mutual Holding 
Company is to pursue any or all of the lawful objectives of a federal 
mutual savings and loan holding company chartered under section 10(o) of 
the Home Owners' Loan Act, 12 U.S.C. 1467a(o), and to exercise all of 
the express, implied, and incidental powers conferred thereby and all 
acts amendatory thereof and supplemental thereto, subject to the 
Constitution and the laws of the United States as they are now in 
effect, or as they may hereafter be amended, and subject to all lawful 
and applicable rules, regulations, and orders of the Federal Reserve 
Board (``Board'').
    Section 4: Capital. The Mutual Holding Company shall have no capital 
stock.
    Section 5: Members. [The content of this section 5 shall be 
identical to the content of the parallel section in the charter of the 
reorganizing association, with the following exceptions: (A) Any 
provisions conferring membership rights upon borrowers of the 
reorganizing association shall be eliminated and replaced with 
provisions grandfathering those rights in accordance with 12 CFR 239.5; 
and (B) appropriate changes shall be made to indicate that membership 
rights in the mutual holding company derive from deposit accounts in 
and, to the extent of any grandfather provisions, borrowings from the 
resulting association. Set forth below is an example of how section 5 
should appear in the charter of a mutual holding company formed by a 
reorganizing association whose charter conforms to the model charter 
prescribed for federal mutual savings associations for calendar year 
1989. Additional changes to this section 5 may be required whenever a 
mutual holding company reorganization involves an acquiree association, 
or a mutual holding company makes a post-reorganization acquisition of a 
mutual savings association, so as to preserve the membership rights of 
the members of the acquired association consistent with 12 CFR 239.5.]
    All holders of the savings, demand, or other authorized accounts of 
----[insert the name of the resulting association] (the ``Association'') 
are members of the Mutual Holding Company. With respect to all questions 
requiring action by the members of the Mutual Holding Company, each 
holder of an account in the Association shall be permitted to cast one 
vote for each $100, or fraction thereof, of the withdrawal value of the 
member's account. In addition, borrowers from the Association as of ----
[insert the date of the reorganization or any earlier date as of which 
new borrowings ceased to result in membership rights] shall be entitled 
to one vote for the period of time during which such borrowings are in 
existence. [The foregoing sentence should be included only if the 
charter of the reorganizing association confers voting rights on any 
borrowers.] No member, however, shall cast more than one thousand votes. 
All accounts shall be nonassessable.
    Section 6. Directors. The Mutual Holding Company shall be under the 
direction of a board of directors. The authorized number of directors 
shall not be fewer than five nor more than fifteen, as fixed in the 
Mutual Holding Company's bylaws, except that the number of directors may 
be decreased to a number less than five or increased to a number greater 
than fifteen with the prior approval of the Board.
    Section 7: Capital, surplus, and distribution of earnings. [The 
content of this section 7 shall be identical to the content of the 
parallel section in the charter of the reorganizing association, except 
for changes made to indicate that distribution rights in the mutual 
holding company derive from deposit accounts in the resulting 
association, any changes required to provide that the Board shall be the 
approving authority in instances where the charter requires regulatory 
approval of distributions, and any other changes necessary to 
accommodate the mutual holding company format. Set forth below is an 
example of how section 7 should appear in the charter of a mutual 
holding company formed by a reorganizing association whose charter 
conforms to the model charter prescribed for federal mutual savings 
associations for calendar year 1989. Additional changes to this section 
7 may be required whenever a mutual holding company reorganization 
involves an acquiree association, or a mutual holding company makes a

[[Page 185]]

post-reorganization acquisition of a mutual savings association, so as 
to preserve the membership rights of the members of the acquired 
association consistent with 12 CFR 239.5].
    The Mutual Holding Company shall distribute net earnings to account 
holders of the Association on such basis and in accordance with such 
terms and conditions as may from time to time be authorized by the 
Board, provided that the Mutual Holding Company may establish minimum 
account balance requirements for account holders to be eligible for 
distributions of earnings.
    All holders of accounts of the Association shall be entitled to 
equal distribution of the assets of the Mutual Holding Company, pro rata 
to the value of their accounts in the Association, in the event of 
voluntary or involuntary liquidation, dissolution, or winding up of the 
Mutual Holding Company.
    Section 8. Amendment. Adoption of any preapproved charter amendment 
shall be effective after such preapproved amendment has been approved by 
the members at a legal meeting. Any other amendment, addition, change, 
or repeal of this charter must be approved by the Board prior to 
approval by the members at a legal meeting and shall be effective upon 
filing with the Board in accordance with regulatory procedures.
 Attest:________________________________________________________________
Secretary of the Association
 By:____________________________________________________________________
President or Chief Executive Officer of the Association
 By:____________________________________________________________________
Secretary of the Board of Governors of the Federal Reserve System
 Effective Date:________________________________________________________



  Sec. Appendix B to Part 239--Subsidiary Holding Company of a Mutual 
                      Holding Company Model Charter

             FEDERAL MHC SUBSIDIARY HOLDING COMPANY CHARTER

    Section 1. Corporate title. The full corporate title of the mutual 
holding company (``MHC'') subsidiary holding company is XXX.
    Section 2. Domicile. The domicile of the MHC subsidiary holding 
company shall be in the city of --, in the State of --.
    Section 3. Duration. The duration of the MHC subsidiary holding 
company is perpetual.
    Section 4. Purpose and powers. The purpose of the MHC subsidiary 
holding company is to pursue any or all of the lawful objectives of a 
federal mutual holding company chartered under section 10(o) of the Home 
Owners' Loan Act, 12 U.S.C. 1467a(o), and to exercise all of the 
express, implied, and incidental powers conferred thereby and by all 
acts amendatory thereof and supplemental thereto, subject to the 
Constitution and laws of the United States as they are now in effect, or 
as they may hereafter be amended, and subject to all lawful and 
applicable rules, regulations, and orders of the Board of Governors of 
the Federal Reserve System (``Board'').
    Section 5. Capital stock. The total number of shares of all classes 
of the capital stock that the MHC subsidiary holding company has the 
authority to issue is --, all of which shall be common stock of par [or 
if no par is specified then shares shall have a stated] value of -- per 
share. The shares may be issued from time to time as authorized by the 
board of directors without the approval of its shareholders, except as 
otherwise provided in this section 5 or to the extent that such approval 
is required by governing law, rule, or regulation. The consideration for 
the issuance of the shares shall be paid in full before their issuance 
and shall not be less than the par [or stated] value. Neither promissory 
notes nor future services shall constitute payment or part payment for 
the issuance of shares of the MHC subsidiary holding company. The 
consideration for the shares shall be cash, tangible or intangible 
property (to the extent direct investment in such property would be 
permitted to the MHC subsidiary holding company), labor, or services 
actually performed for the MHC subsidiary holding company, or any 
combination of the foregoing. In the absence of actual fraud in the 
transaction, the value of such property, labor, or services, as 
determined by the board of directors of the MHC subsidiary holding 
company, shall be conclusive. Upon payment of such consideration, such 
shares shall be deemed to be fully paid and nonassessable. In the case 
of a stock dividend, that part of the retained earnings of the MHC 
subsidiary holding company that is transferred to common stock or paid-
in capital accounts upon the issuance of shares as a stock dividend 
shall be deemed to be the consideration for their issuance.
    Except for shares issued in the initial organization of the MHC 
subsidiary holding company, no shares of capital stock (including shares 
issuable upon conversion, exchange, or exercise of other securities) 
shall be issued, directly or indirectly, to officers, directors, or 
controlling persons (except for shares issued to the parent mutual 
holding company) of the MHC subsidiary holding company other than as 
part of a general public offering or as qualifying shares to a director, 
unless the issuance or the plan under which they would be issued has 
been approved by a majority of the total votes eligible to be cast at a 
legal meeting.
    The holders of the common stock shall exclusively possess all voting 
power. Each holder of shares of common stock shall be entitled to one 
vote for each share held by such holder, except as to the cumulation of

[[Page 186]]

votes for the election of directors, unless the charter provides that 
there shall be no such cumulative voting. Subject to any provision for a 
liquidation account, in the event of any liquidation, dissolution, or 
winding up of the MHC subsidiary holding company, the holders of the 
common stock shall be entitled, after payment or provision for payment 
of all debts and liabilities of the MHC subsidiary holding company, to 
receive the remaining assets of the MHC subsidiary holding company 
available for distribution, in cash or in kind. Each share of common 
stock shall have the same relative rights as and be identical in all 
respects with all the other shares of common stock.
    Section 6. Preemptive rights. Holders of the capital stock of the 
MHC subsidiary holding company shall not be entitled to preemptive 
rights with respect to any shares of the MHC subsidiary holding company 
which may be issued.
    Section 7. Directors. The MHC subsidiary holding company shall be 
under the direction of a board of directors. The authorized number of 
directors, as stated in the MHC subsidiary holding company's bylaws, 
shall not be fewer than five nor more than fifteen except when a greater 
or lesser number is approved by the Board, or his or her delegate.
    Section 8. Amendment of charter. Except as provided in Section 5, no 
amendment, addition, alteration, change or repeal of this charter shall 
be made, unless such is proposed by the board of directors of the MHC 
subsidiary holding company, approved by the shareholders by a majority 
of the votes eligible to be cast at a legal meeting, unless a higher 
vote is otherwise required, and approved or preapproved by the Board.

 Attest:________________________________________________________________
Secretary of the Subsidiary Holding Company
 By:____________________________________________________________________
President or Chief Executive Officer of the Subsidiary Holding Company
 By:____________________________________________________________________
Secretary of the Board of Governors of the Federal Reserve System
 Effective Date:________________________________________________________



    Sec. Appendix C to Part 239--Mutual Holding Company Model Bylaws

                MODEL BYLAWS FOR MUTUAL HOLDING COMPANIES

    The term ``trustees'' may be substituted for the term ``directors.''
    1. Annual meeting of members. The annual meeting of the members of 
the mutual holding company for the election of directors and for the 
transaction of any other business of the mutual holding company shall be 
held, as designated by the board of directors, at a location within the 
state that constitutes the principal place of business of the mutual 
holding company, or at any other convenient place the board of directors 
may designate, at (insert date and time within 150 days after the end of 
the mutual holding company's fiscal year, if not a legal holiday, or if 
a legal holiday then on the next succeeding day not a legal holiday). At 
each annual meeting, the officers shall make a full report of the 
financial condition of the mutual holding company and of its progress 
for the preceding year and shall outline a program for the succeeding 
year.
    2. Special meetings of members. Special meetings of the members of 
the mutual holding company may be called at any time by the president or 
the board of directors and shall be called by the president, a vice 
president, or the secretary upon the written request of members of 
record, holding in the aggregate at least one-tenth of the voting 
capital of the mutual holding company. Such written request shall state 
the purpose of the meeting and shall be delivered at the principal place 
of business of the mutual holding company addressed to the president. 
For purposes of this section, ``voting capital'' means FDIC-insured 
deposits as of the voting record date. Annual and special meetings shall 
be conducted in accordance with the most current edition of Robert's 
Rules of Order or any other set of written procedures agreed to by the 
board of directors.
    3. Notice of meeting of members. Notice of each meeting shall be 
either published once a week for the two successive calendar weeks (in 
each instance on any day of the week) immediately prior to the week in 
which such meeting shall convene, in a newspaper printed in the English 
language and of general circulation in the city or county in which the 
principal place of business of the mutual holding company is located, or 
mailed postage prepaid at least (insert number no less than 15) days and 
not more than (insert number not more than 45) days prior to the date on 
which such meeting shall convene, to each of its members of record at 
the last address appearing on the books of the mutual holding company. 
Such notice shall state the name of the mutual holding company, the 
place of the meeting, the date and time when it shall convene, and the 
matters to be considered. A similar notice shall be posted in a 
conspicuous place in each of the offices of the mutual holding company 
during the 14 days immediately preceding the date on which such meeting 
shall convene. If any member, in person or by authorized attorney, shall 
waive in writing notice of any meeting of members, notice thereof need 
not be given to such member. When any meeting is adjourned for 30 days 
or more, notice of the adjournment and reconvening of the meeting shall 
be given as in the case of the original meeting.
    4. Fixing of record date. For the purpose of determining members 
entitled to notice of or

[[Page 187]]

to vote at any meeting of members or any adjournment thereof, or in 
order to make a determination of members for any other proper purpose, 
the board of directors shall fix in advance a record date for any such 
determination of members. Such date shall be not more than 60 days nor 
fewer than 10 days prior to the date on which the action, requiring such 
determination of members, is to be taken. The member entitled to 
participate in any such action shall be the member of record on the 
books of the mutual holding company on such record date. The number of 
votes which each member shall be entitled to cast at any meeting of the 
members shall be determined from the books of the mutual holding company 
as of such record date. Any member of such record date who ceases to be 
a member prior to such meeting shall not be entitled to vote at that 
meeting. The same determination shall apply to any adjourned meeting.
    5. Member quorum. Any number of members present and voting, 
represented in person or by proxy, at a regular or special meeting of 
the members shall constitute a quorum. A majority of all votes cast at 
any meeting of the members shall determine any question, unless 
otherwise required by regulation. Directors, however, are elected by a 
plurality of the votes cast at an election of directors. At any 
adjourned meeting any business may be transacted which might have been 
transacted at the meeting as originally called. Members present at a 
duly constituted meeting may continue to transact business until 
adjournment.
    6. Voting by proxy. Voting at any annual or special meeting of the 
members may be by proxy pursuant to the rules and regulations of the 
Board of Governors of the Federal Reserve System (Board), provided, that 
no proxies shall be voted at any meeting unless such proxies shall have 
been placed on file with the secretary of the mutual holding company, 
for verification, prior to the convening of such meeting. Proxies may be 
given telephonically or electronically as long as the holder uses a 
procedure for verifying the identity of the member. All proxies with a 
term greater than eleven months or solicited at the expense of the 
mutual holding company must run to the board of directors as a whole, or 
to a committee appointed by a majority of such board. Accounts held by 
an administrator, executor, guardian, conservator or receiver may be 
voted in person or by proxy by such person. Accounts held by a trustee 
may be voted by such trustee either in person or by proxy, in accordance 
with the terms of the trust agreement, but no trustee shall be entitled 
to vote accounts without a transfer of such accounts into the trustee 
name. Accounts held in trust in an IRA or Keogh Account, however, may be 
voted by the mutual holding company if no other instructions are 
received. Joint accounts shall be entitled to no more than 1000 votes, 
and any owner may cast all the votes unless the mutual holding company 
has otherwise been notified in writing.
    7. Communication between members. Communication between members 
shall be subject to any applicable rules or regulations of the Board. No 
member, however, shall have the right to inspect or copy any portion of 
any books or records of a mutual holding company containing: (i) a list 
of depositors in or borrowers from such mutual holding company; (ii) 
their addresses; (iii) individual deposit or loan balances or records; 
or (iv) any data from which such information could reasonably be 
constructed.
    8. Number of directors, membership. The number of directors shall be 
----[not fewer than five nor more than fifteen], except where authorized 
by the Board. Each director shall be a member of the mutual holding 
company. Directors shall be elected for periods of one to three years 
and until their successors are elected and qualified, but if a staggered 
board is chosen, provision shall be made for the election of 
approximately one-third or one-half of the board each year, as 
appropriate.
    9. Meetings of the board. The board of directors shall meet 
regularly without notice at the principal place of business of the 
mutual holding company at least once each month at an hour and date 
fixed by resolution of the board, provided that the place of meeting may 
be changed by the directors. Special meetings of the board may be held 
at any place specified in a notice of such meeting and shall be called 
by the secretary upon the written request of the chairman or of three 
directors. All special meetings shall be held upon at least 24 hours 
written notice to each director unless notice is waived in writing 
before or after such meeting. Such notice shall state the place, date, 
time, and purposes of such meeting. A majority of the authorized 
directors shall constitute a quorum for the transaction of business. The 
act of a majority of the directors present at any meeting at which there 
is a quorum shall be the act of the board. Action may be taken without a 
meeting if unanimous written consent is obtained for such action. The 
board may also permit telephonic participation at meetings. The meetings 
shall be under the direction of a chairman, appointed annually by the 
board, or in the absence of the chairman, the meetings shall be under 
the direction of the president.
    10. Officers, employees, and agents. Annually at the meeting of the 
board of directors of the mutual holding company following the annual 
meeting of the members of the mutual holding company, the board shall 
elect a president, one or more vice presidents, a secretary, and a 
treasurer or comptroller: Provided, that the offices of president and

[[Page 188]]

secretary may not be held by the same person and a vice president may 
also be the treasurer or comptroller. The board may appoint such 
additional officers, employees, and agents as it may from time to time 
determine. The term of office of all officers shall be one year or until 
their respective successors are elected and qualified. Any officer may 
be removed at any time by the board with or without cause, but such 
removal, other than for cause, shall be without prejudice to the 
contractual rights, if any, of the person so removed. In the absence of 
designation from time to time of powers and duties by the board, the 
officers shall have such powers and duties as generally pertain to their 
respective offices. Any indemnification by the mutual holding company of 
the mutual holding company's personnel is subject to any applicable 
rules or regulations of the Board.
    11. Vacancies, resignation or removal of directors. Members of the 
mutual holding company shall elect directors by ballot: Provided, that 
in the event of a vacancy on the board between meetings of members, the 
board of directors may, by their affirmative vote, fill such vacancy, 
even if the remaining directors constitute less than a quorum. A 
director elected to fill a vacancy shall be elected to serve only until 
the next election of directors by the members. Any director may resign 
at any time by sending a written notice of such resignation to the 
mutual holding company delivered to the secretary. Unless otherwise 
specified therein such resignation shall take effect upon receipt by the 
secretary. More than three consecutive absences from regular meetings of 
the board, unless excused by resolution of the board, shall 
automatically constitute a resignation, effective when such resignation 
is accepted by the board. At a meeting of members called expressly for 
that purpose, directors or the entire board may be removed, only with 
cause, by a vote of the holders of a majority of the shares then 
entitled to vote at an election of directors.
    12. Powers of the board. The board of directors shall have the 
power: (a) By resolution, to appoint from among its members and remove 
an executive committee, which committee shall have and may exercise the 
powers of the board between the meetings of the board, but no such 
committee shall have the authority of the board to amend the charter or 
bylaws, adopt a plan of merger, consolidation, dissolution, or provide 
for the disposition of all or substantially all the property and assets 
of the mutual holding company. Such committee shall not operate to 
relieve the board, or any member thereof, of any responsibility imposed 
by law; (b) To appoint and remove by resolution the members of such 
other committees as may be deemed necessary and prescribe the duties 
thereof; (c) To fix the compensation of directors, officers, and 
employees; and to remove any officer or employee at any time with or 
without cause; (d) To limit payments on capital which may be accepted; 
and (e) To exercise any and all of the powers of the mutual holding 
company not expressly reserved by the charter to the members.
    13. Execution of instruments, generally. All documents and 
instruments or writings of any nature shall be signed, executed, 
verified, acknowledged, and delivered by such officers, agents, or 
employees of the mutual holding company or any one of them and in such 
manner as from time to time may be determined by resolution of the 
board. All notes, drafts, acceptances, checks, endorsements, and all 
evidences of indebtedness of the mutual holding company whatsoever shall 
be signed by such officer or officers or such agent or agents of the 
mutual holding company and in such manner as the board may from time to 
time determine. Endorsements for deposit to the credit of the mutual 
holding company in any of its duly authorized depositories shall be made 
in such manner as the board may from time to time determine. Proxies to 
vote with respect to shares or accounts of other mutual holding 
companies or stock of other corporations owned by, or standing in the 
name of, the mutual holding company may be executed and delivered from 
time to time on behalf of the mutual holding company by the president or 
a vice president and the secretary or an assistant secretary of the 
mutual holding company or by any other persons so authorized by the 
board.
    14. Nominating committee. The chairman, at least 30 days prior to 
the date of each annual meeting, shall appoint a nominating committee of 
three individuals who are members of the mutual holding company. Such 
committee shall make nominations for directors in writing and deliver to 
the secretary such written nominations at least 15 days prior to the 
date of the annual meeting, which nominations shall then be posted in a 
prominent place in the principal place of business for the 15-day period 
prior to the date of the annual meeting, except in the case of a nominee 
substituted as a result of death or other incapacity. Provided such 
committee is appointed and makes such nominations, no nominations for 
directors except those made by the nominating committee shall be voted 
upon at the annual meeting unless other nominations by members are made 
in writing and delivered to the secretary of the mutual holding company 
at least 10 days prior to the date of the annual meeting, which 
nominations shall then be posted in a prominent place in the principal 
place of business for the 10-day period prior to the date of the annual 
meeting, except in the case of a nominee substituted as a result of 
death or other incapacity. Ballots bearing the names of all individuals 
nominated by

[[Page 189]]

the nominating committee and by other members prior to the annual 
meeting shall be provided for use by the members at the annual meeting. 
If at any time the chairman shall fail to appoint such nominating 
committee, or the nominating committee shall fail or refuse to act at 
least 15 days prior to the annual meeting, nominations for directors may 
be made at the annual meeting by any member and shall be voted upon.
    15. New business. Any new business to be taken up at the annual 
meeting, including any proposal to increase or decrease the number of 
directors of the mutual holding company, shall be stated in writing and 
filed with the secretary of the mutual holding company at least 30 days 
before the date of the annual meeting, and all business so stated, 
proposed, and filed shall be considered at the annual meeting; but no 
other proposal shall be acted upon at the annual meeting. Any member may 
make any other proposal at the annual meeting and the same may be 
discussed and considered; but unless stated in writing and filed with 
the secretary 30 days before the meeting, such proposal shall be laid 
over for action at an adjourned, special, or regular meeting of the 
members taking place at least 30 days thereafter. This provision shall 
not prevent the consideration and approval or disapproval at the annual 
meeting of the reports of officers and committees, but in connection 
with such reports no new business shall be acted upon at such annual 
meeting unless stated and filed as herein provided.
    16. Seal. The seal shall be two concentric circles between which 
shall be the name of the mutual holding company. The year of 
incorporation, the word ``Incorporated'' or an emblem may appear in the 
center.
    17. Amendment. Adoption of any bylaw amendment pursuant to Sec. 
239.15 of the Board's regulations, as long as consistent with applicable 
law, rules and regulations, and which adequately addresses the subject 
and purpose of the stated by law section, shall be effective after (i) 
approval of the amendment by a majority vote of the authorized board, or 
by a vote of the members of the mutual holding company at a legal 
meeting; and (ii) receipt of any applicable regulatory approval. When a 
mutual holding company fails to meet its quorum requirement solely due 
to vacancies on the board, the bylaws may be amended by an affirmative 
vote of a majority of the sitting board.
    18. Age limitations. [Bylaws on age limitations must comply with all 
Federal laws, such as the Age Discrimination in Employment Act and the 
Employee Retirement Income Security Act.]
    (a) Directors. No individual ---- years of age shall be eligible for 
election, reelection, appointment, or reappointment to the board of the 
mutual holding company. No director shall serve as such beyond the 
annual meeting of the mutual holding company immediately following the 
director becoming ----(fill in age used above), except that a director 
serving on ----(fill in bylaw adoption date) may complete the term as 
director. This age limitation does not apply to an advisory director.
    (b) Officers. No individual ---- years of age shall be eligible for 
election, reelection, appointment, or reappointment as an officer of the 
mutual holding company. No officer shall serve beyond the annual meeting 
of the mutual holding company immediately following the officer becoming 
----(fill in age used above), except that an officer serving on ----
(fill in bylaw adoption date) may complete the term. However, an officer 
shall, at the option of the board, retire at age ---- if the officer has 
served in an executive or high policy-making post for at least two years 
immediately prior to retirement and is immediately entitled to 
nonforfeitable annual retirement benefits of at least ----.



  Sec. Appendix D to Part 239--Subsidiary Holding Company of a Mutual 
                      Holding Company Model Bylaws

                  MHC Subsidiary Holding Company Bylaws

                         Article I--Home Office

    The home office of the Subsidiary Holding Company shall be at ------
---------- . [set forth the full address] in the County of ------------
---- , in the State of ---------------- .

                        Article II--Shareholders

    Section 1. Place of Meetings. All annual and special meetings of 
shareholders shall be held at the home office of the Subsidiary Holding 
Company or at such other convenient place as the board of directors may 
determine.
    Section 2. Annual Meeting. A meeting of the shareholders of the 
Subsidiary Holding Company for the election of directors and for the 
transaction of any other business of the Subsidiary Holding Company 
shall be held annually within 150 days after the end of the Subsidiary 
Holding Company's fiscal year on the ----of ---- if not a legal holiday, 
and if a legal holiday, then on the next day following which is not a 
legal holiday, at ----, or at such other date and time within such 150-
day period as the board of directors may determine.
    Section 3. Special Meetings. Special meetings of the shareholders 
for any purpose or purposes, unless otherwise prescribed by the 
regulations of the Board of Governors of the Federal Reserve System 
(``Board''), may be called at any time by the chairman of the board, the 
president, or a majority of the board of directors, and shall be called 
by the chairman of the board, the president, or the

[[Page 190]]

secretary upon the written request of the holders of not less than one-
tenth of all of the outstanding capital stock of the Subsidiary Holding 
Company entitled to vote at the meeting. Such written request shall 
state the purpose or purposes of the meeting and shall be delivered to 
the home office of the Subsidiary Holding Company addressed to the 
chairman of the board, the president, or the secretary.
    Section 4. Conduct of Meetings. Annual and special meetings shall be 
conducted in accordance with the most current edition of Robert's Rules 
of Order unless otherwise prescribed by regulations of the Board or 
these bylaws or the board of directors adopts another written procedure 
for the conduct of meetings. The board of directors shall designate, 
when present, either the chairman of the board or president to preside 
at such meetings.
    Section 5. Notice of Meetings. Written notice stating the place, 
day, and hour of the meeting and the purpose(s) for which the meeting is 
called shall be delivered not fewer than 20 nor more than 50 days before 
the date of the meeting, either personally or by mail, by or at the 
direction of the chairman of the board, the president, or the secretary, 
or the directors calling the meeting, to each shareholder of record 
entitled to vote at such meeting. If mailed, such notice shall be deemed 
to be delivered when deposited in the mail, addressed to the shareholder 
at the address as it appears on the stock transfer books or records of 
the Subsidiary Holding Company as of the record date prescribed in 
section 6 of this article II with postage prepaid. When any 
shareholders' meeting, either annual or special, is adjourned for 30 
days or more, notice of the adjourned meeting shall be given as in the 
case of an original meeting. It shall not be necessary to give any 
notice of the time and place of any meeting adjourned for less than 30 
days or of the business to be transacted at the meeting, other than an 
announcement at the meeting at which such adjournment is taken.
    Section 6. Fixing of Record Date. For the purpose of determining 
shareholders entitled to notice of or to vote at any meeting of 
shareholders or any adjournment, or shareholders entitled to receive 
payment of any dividend, or in order to make a determination of 
shareholders for any other proper purpose, the board of directors shall 
fix in advance a date as the record date for any such determination of 
shareholders. Such date in any case shall be not more than 60 days and, 
in case of a meeting of shareholders, not fewer than 10 days prior to 
the date on which the particular action, requiring such determination of 
shareholders, is to be taken. When a determination of shareholders 
entitled to vote at any meeting of shareholders has been made as 
provided in this section, such determination shall apply to any 
adjournment.
    Section 7. Voting Lists. At least 20 days before each meeting of the 
shareholders, the officer or agent having charge of the stock transfer 
books for shares of the Subsidiary Holding Company shall make a complete 
list of the shareholders of record entitled to vote at such meeting, or 
any adjournment thereof, arranged in alphabetical order, with the 
address and the number of shares held by each. This list of shareholders 
shall be kept on file at the home office of the Subsidiary Holding 
Company and shall be subject to inspection by any shareholder of record 
or the shareholder's agent at any time during usual business hours for a 
period of 20 days prior to such meeting. Such list shall also be 
produced and kept open at the time and place of the meeting and shall be 
subject to inspection by any shareholder of record or any shareholder's 
agent during the entire time of the meeting. The original stock transfer 
book shall constitute prima facie evidence of the shareholders entitled 
to examine such list or transfer books or to vote at any meeting of 
shareholders. In lieu of making the shareholder list available for 
inspection by shareholders as provided in the preceding paragraph, the 
board of directors may elect to follow the procedures prescribed in 
Sec. 239.26(d) of the Board's regulations as now or hereafter in 
effect.
    Section 8. Quorum. A majority of the outstanding shares of the 
Subsidiary Holding Company entitled to vote, represented in person or by 
proxy, shall constitute a quorum at a meeting of shareholders. If less 
than a majority of the outstanding shares is represented at a meeting, a 
majority of the shares so represented may adjourn the meeting from time 
to time without further notice. At such adjourned meeting at which a 
quorum shall be present or represented, any business may be transacted 
which might have been transacted at the meeting as originally notified. 
The shareholders present at a duly organized meeting may continue to 
transact business until adjournment, notwithstanding the withdrawal of 
enough shareholders to constitute less than a quorum. If a quorum is 
present, the affirmative vote of the majority of the shares represented 
at the meeting and entitled to vote on the subject matter shall be the 
act of the shareholders, unless the vote of a greater number of 
shareholders voting together or voting by classes is required by law or 
the charter. Directors, however, are elected by a plurality of the votes 
cast at an election of directors.
    Section 9. Proxies. At all meetings of shareholders, a shareholder 
may vote by proxy executed in writing by the shareholder or by his or 
her duly authorized attorney in fact. Proxies may be given 
telephonically or electronically as long as the holder uses a

[[Page 191]]

procedure for verifying the identity of the shareholder. Proxies 
solicited on behalf of the management shall be voted as directed by the 
shareholder or, in the absence of such direction, as determined by a 
majority of the board of directors. No proxy shall be valid more than 
eleven months from the date of its execution except for a proxy coupled 
with an interest.
    Section 10. Voting of Shares in the Name of Two or More Persons. 
When ownership stands in the name of two or more persons, in the absence 
of written directions to the Subsidiary Holding Company to the contrary, 
at any meeting of the shareholders of the Subsidiary Holding Company any 
one or more of such shareholders may cast, in person or by proxy, all 
votes to which such ownership is entitled. In the event an attempt is 
made to cast conflicting votes, in person or by proxy, by the several 
persons in whose names shares of stock stand, the vote or votes to which 
those persons are entitled shall be cast as directed by a majority of 
those holding such and present in person or by proxy at such meeting, 
but no votes shall be cast for such stock if a majority cannot agree.
    Section 11. Voting of Shares by Certain Holders. Shares standing in 
the name of another corporation may be voted by any officer, agent, or 
proxy as the bylaws of such corporation may prescribe, or, in the 
absence of such provision, as the board of directors of such corporation 
may determine. Shares held by an administrator, executor, guardian, or 
conservator may be voted by him or her, either in person or by proxy, 
without a transfer of such shares into his or her name. Shares standing 
in the name of a trustee may be voted by him or her, either in person or 
by proxy, but no trustee shall be entitled to vote shares held by him or 
her without a transfer of such shares into his or her name. Shares held 
in trust in an IRA or Keogh Account, however, may by voted by the 
Subsidiary Holding Company if no other instructions are received. Shares 
standing in the name of a receiver may be voted by such receiver, and 
shares held by or under the control of a receiver may be voted by such 
receiver without the transfer into his or her name if authority to do so 
is contained in an appropriate order of the court or other public 
authority by which such receiver was appointed. A shareholder whose 
shares are pledged shall be entitled to vote such shares until the 
shares have been transferred into the name of the pledgee, and 
thereafter the pledgee shall be entitled to vote the shares so 
transferred. Neither treasury shares of its own stock held by the 
Subsidiary Holding Company nor shares held by another corporation, if a 
majority of the shares entitled to vote for the election of directors of 
such other corporation are held by the Subsidiary Holding Company, shall 
be voted at any meeting or counted in determining the total number of 
outstanding shares at any given time for purposes of any meeting. [If 
charter authorizes cumulative voting, the following Section 12 shall 
apply, otherwise renumber Sections 13-16 as Sections 12-15.]
    Section 12. Cumulative Voting. Every shareholder entitled to vote at 
an election for directors shall have the right to vote, in person or by 
proxy, the number of shares owned by the shareholder for as many persons 
as there are directors to be elected and for whose election the 
shareholder has a right to vote, or to cumulate the votes by giving one 
candidate as many votes as the number of such directors to be elected 
multiplied by the number of shares shall equal or by distributing such 
votes on the same principle among any number of candidates.
    Section 13. Inspectors of Election. In advance of any meeting of 
shareholders, the board of directors may appoint any individual other 
than nominees for office as inspectors of election to act at such 
meeting or any adjournment. The number of inspectors shall be either one 
or three. Any such appointment shall not be altered at the meeting. If 
inspectors of election are not so appointed, the chairman of the board 
or the president may, or on the request of not fewer than 10 percent of 
the votes represented at the meeting shall, make such appointment at the 
meeting. If appointed at the meeting, the majority of the votes present 
shall determine whether one or three inspectors are to be appointed. In 
case any individual appointed as inspector fails to appear or fails or 
refuses to act, the vacancy may be filled by appointment by the board of 
directors in advance of the meeting or at the meeting by the chairman of 
the board or the president. Unless otherwise prescribed by regulations 
of the Board, the duties of such inspectors shall include: determining 
the number of shares and the voting power of each share, the shares 
represented at the meeting, the existence of a quorum, and the 
authenticity, validity and effect of proxies; receiving votes, ballots, 
or consents; hearing and determining all challenges and questions in any 
way arising in connection with the rights to vote; counting and 
tabulating all votes or consents; determining the result; and such acts 
as may be proper to conduct the election or vote with fairness to all 
shareholders.
    Section 14. Nominating Committee. The board of directors shall act 
as a nominating committee for selecting the management nominees for 
election as directors. Except in the case of a nominee substituted as a 
result of the death or other incapacity of a management nominee, the 
nominating committee shall deliver written nominations to the secretary 
at least 20 days prior to the date of the annual meeting. Upon delivery, 
such nominations shall be posted in a conspicuous

[[Page 192]]

place in each office of the Subsidiary Holding Company. No nominations 
for directors except those made by the nominating committee shall be 
voted upon at the annual meeting unless other nominations by 
shareholders are made in writing and delivered to the secretary of the 
Subsidiary Holding Company at least five days prior to the date of the 
annual meeting. Upon delivery, such nominations shall be posted in a 
conspicuous place in each office of the Subsidiary Holding Company. 
Ballots bearing the names of all persons nominated by the nominating 
committee and by shareholders shall be provided for use at the annual 
meeting. However, if the nominating committee shall fail or refuse to 
act at least 20 days prior to the annual meeting, nominations for 
directors may be made at the annual meeting by any shareholder entitled 
to vote and shall be voted upon.
    Section 15. New Business. Any new business to be taken up at the 
annual meeting shall be stated in writing and filed with the secretary 
of the Subsidiary Holding Company at least five days before the date of 
the annual meeting, and all business so stated, proposed, and filed 
shall be considered at the annual meeting; but no other proposal shall 
be acted upon at the annual meeting. Any shareholder may make any other 
proposal at the annual meeting and the same may be discussed and 
considered, but unless stated in writing and filed with the secretary at 
least five days before the meeting, such proposal shall be laid over for 
action at an adjourned, special, or annual meeting of the shareholders 
taking place 30 days or more thereafter. This provision shall not 
prevent the consideration and approval or disapproval at the annual 
meeting of reports of officers, directors, and committees; but in 
connection with such reports, no new business shall be acted upon at 
such annual meeting unless stated and filed as herein provided.
    Section 16. Informal Action by Shareholders. Any action required to 
be taken at a meeting of the shareholders, or any other action which may 
be taken at a meeting of shareholders, may be taken without a meeting if 
consent in writing, setting forth the action so taken, shall be given by 
all of the shareholders entitled to vote with respect to the subject 
matter.

                     Article III--Board of Directors

    Section 1. General Powers. The business and affairs of the 
Subsidiary Holding Company shall be under the direction of its board of 
directors. The board of directors shall annually elect a chairman of the 
board and a president from among its members and shall designate, when 
present, either the chairman of the board or the president to preside at 
its meetings.
    Section 2. Number and Term. The board of directors shall consist of 
---- [not fewer than five nor more than fifteen] members, and shall be 
divided into three classes as nearly equal in number as possible. The 
members of each class shall be elected for a term of three years and 
until their successors are elected and qualified. One class shall be 
elected by ballot annually.
    Section 3. Regular Meetings. A regular meeting of the board of 
directors shall be held without other notice than this bylaw following 
the annual meeting of shareholders. The board of directors may provide, 
by resolution, the time and place, for the holding of additional regular 
meetings without other notice than such resolution. Directors may 
participate in a meeting by means of a conference telephone or similar 
communications device through which all individuals participating can 
hear each other at the same time. Participation by such means shall 
constitute presence in person for all purposes.
    Section 4. Qualification. Each director shall at all times be the 
beneficial owner of not less than 100 shares of capital stock of the 
Subsidiary Holding Company unless the Subsidiary Holding Company is a 
wholly owned subsidiary of a holding company.
    Section 5. Special Meetings. Special meetings of the board of 
directors may be called by or at the request of the chairman of the 
board, the president, or one-third of the directors. The persons 
authorized to call special meetings of the board of directors may fix 
any place, within the Subsidiary Holding Company's normal lending 
territory, as the place for holding any special meeting of the board of 
directors called by such persons. Members of the board of directors may 
participate in special meetings by means of conference telephone or 
similar communications equipment by which all persons participating in 
the meeting can hear each other. Such participation shall constitute 
presence in person for all purposes.
    Section 6. Notice. Written notice of any special meeting shall be 
given to each director at least 24 hours prior thereto when delivered 
personally or by telegram or at least five days prior thereto when 
delivered by mail at the address at which the director is most likely to 
be reached. Such notice shall be deemed to be delivered when deposited 
in the mail so addressed, with postage prepaid if mailed, when delivered 
to the telegraph company if sent by telegram, or when the Subsidiary 
Holding Company receives notice of delivery if electronically 
transmitted. Any director may waive notice of any meeting by a writing 
filed with the secretary. The attendance of a director at a meeting 
shall constitute a waiver of notice of such meeting, except where a 
director attends a meeting for the express purpose of objecting to the 
transaction of any business because the meeting is not lawfully called 
or convened. Neither the business to be transacted at, nor

[[Page 193]]

the purpose of, any meeting of the board of directors need be specified 
in the notice of waiver of notice of such meeting.
    Section 7. Quorum. A majority of the number of directors fixed by 
section 2 of this article III shall constitute a quorum for the 
transaction of business at any meeting of the board of directors; but if 
less than such majority is present at a meeting, a majority of the 
directors present may adjourn the meeting from time to time. Notice of 
any adjourned meeting shall be given in the same manner as prescribed by 
section 5 of this article III.
    Section 8. Manner of Acting. The act of the majority of the 
directors present at a meeting at which a quorum is present shall be the 
act of the board of directors, unless a greater number is prescribed by 
regulation of the Board or by these bylaws.
    Section 9. Action Without a Meeting. Any action required or 
permitted to be taken by the board of directors at a meeting may be 
taken without a meeting if a consent in writing, setting forth the 
action so taken, shall be signed by all of the directors.
    Section 10. Resignation. Any director may resign at any time by 
sending a written notice of such resignation to the home office of the 
Subsidiary Holding Company addressed to the chairman of the board or the 
president. Unless otherwise specified, such resignation shall take 
effect upon receipt by the chairman of the board or the president. More 
than three consecutive absences from regular meetings of the board of 
directors, unless excused by resolution of the board of directors, shall 
automatically constitute a resignation, effective when such resignation 
is accepted by the board of directors.
    Section 11. Vacancies. Any vacancy occurring on the board of 
directors may be filled by the affirmative vote of a majority of the 
remaining directors although less than a quorum of the board of 
directors. A director elected to fill a vacancy shall be elected to 
serve only until the next election of directors by the shareholders. Any 
directorship to be filled by reason of an increase in the number of 
directors may be filled by election by the board of directors for a term 
of office continuing only until the next election of directors by the 
shareholders.
    Section 12. Compensation. Directors, as such, may receive a stated 
salary for their services. By resolution of the board of directors, a 
reasonable fixed sum, and reasonable expenses of attendance, if any, may 
be allowed for attendance at each regular or special meeting of the 
board of directors. Members of either standing or special committees may 
be allowed such compensation for attendance at committee meetings as the 
board of directors may determine.
    Section 13. Presumption of Assent. A director of the Subsidiary 
Holding Company who is present at a meeting of the board of directors at 
which action on any Subsidiary Holding Company matter is taken shall be 
presumed to have assented to the action taken unless his or her dissent 
or abstention shall be entered in the minutes of the meeting or unless 
he or she shall file a written dissent to such action with the 
individual acting as the secretary of the meeting before the adjournment 
thereof or shall forward such dissent by registered mail to the 
secretary of the Subsidiary Holding Company within five days after the 
date a copy of the minutes of the meeting is received. Such right to 
dissent shall not apply to a director who voted in favor of such action.
    Section 14. Removal of Directors. At a meeting of shareholders 
called expressly for that purpose, any director may be removed only for 
cause by a vote of the holders of a majority of the shares then entitled 
to vote at an election of directors. If less than the entire board is to 
be removed, no one of the directors may be removed if the votes cast 
against the removal would be sufficient to elect a director if then 
cumulatively voted at an election of the class of directors of which 
such director is a part. [If cumulative voting has been deleted, the 
preceding sentence should be deleted.] Whenever the holders of the 
shares of any class are entitled to elect one or more directors by the 
provisions of the charter or supplemental sections thereto, the 
provisions of this section shall apply, in respect to the removal of a 
director or directors so elected, to the vote of the holders of the 
outstanding shares of that class and not to the vote of the outstanding 
shares as a whole.

               Article IV--Executive and Other Committees

    Section 1. Appointment. The board of directors, by resolution 
adopted by a majority of the full board, may designate the chief 
executive officer and two or more of the other directors to constitute 
an executive committee. The designation of any committee pursuant to 
this Article IV and the delegation of authority shall not operate to 
relieve the board of directors, or any director, of any responsibility 
imposed by law or regulation.
    Section 2. Authority. The executive committee, when the board of 
directors is not in session, shall have and may exercise all of the 
authority of the board of directors except to the extent, if any, that 
such authority shall be limited by the resolution appointing the 
executive committee; and except also that the executive committee shall 
not have the authority of the board of directors with reference to: the 
declaration of dividends; the amendment of the charter or bylaws of the 
Subsidiary Holding Company, or recommending to the shareholders a plan 
of merger, consolidation, or conversion; the

[[Page 194]]

sale, lease, or other disposition of all or substantially all of the 
property and assets of the Subsidiary Holding Company otherwise than in 
the usual and regular course of its business; a voluntary dissolution of 
the Subsidiary Holding Company; a revocation of any of the foregoing; or 
the approval of a transaction in which any member of the executive 
committee, directly or indirectly, has any material beneficial interest.
    Section 3. Tenure. Subject to the provisions of section 8 of this 
article IV, each member of the executive committee shall hold office 
until the next regular annual meeting of the board of directors 
following his or her designation and until a successor is designated as 
a member of the executive committee.
    Section 4. Meetings. Regular meetings of the executive committee may 
be held without notice at such times and places as the executive 
committee may fix from time to time by resolution. Special meetings of 
the executive committee may be called by any member thereof upon not 
less than one day's notice stating the place, date, and hour of the 
meeting, which notice may be written or oral. Any member of the 
executive committee may waive notice of any meeting and no notice of any 
meeting need be given to any member thereof who attends in person. The 
notice of a meeting of the executive committee need not state the 
business proposed to be transacted at the meeting.
    Section 5. Quorum. A majority of the members of the executive 
committee shall constitute a quorum for the transaction of business at 
any meeting thereof, and action of the executive committee must be 
authorized by the affirmative vote of a majority of the members present 
at a meeting at which a quorum is present.
    Section 6. Action Without a Meeting. Any action required or 
permitted to be taken by the executive committee at a meeting may be 
taken without a meeting if a consent in writing, setting forth the 
action so taken, shall be signed by all of the members of the executive 
committee.
    Section 7. Vacancies. Any vacancy in the executive committee may be 
filled by a resolution adopted by a majority of the full board of 
directors.
    Section 8. Resignations and Removal. Any member of the executive 
committee may be removed at any time with or without cause by resolution 
adopted by a majority of the full board of directors. Any member of the 
executive committee may resign from the executive committee at any time 
by giving written notice to the president or secretary of the Subsidiary 
Holding Company. Unless otherwise specified, such resignation shall take 
effect upon its receipt; the acceptance of such resignation shall not be 
necessary to make it effective. No notice of any meeting need be given 
to any member thereof who attends in person. The notice of a meeting of 
the executive committee need not state the business proposed to be 
transacted at the meeting.
    Section 9. Procedure. The executive committee shall elect a 
presiding officer from its members and may fix its own rules of 
procedure, which shall not be inconsistent with these bylaws. It shall 
keep regular minutes of its proceedings and report the same to the board 
of directors for its information at the meeting held next after the 
proceedings shall have occurred.
    Section 10. Other Committees. The board of directors may by 
resolution establish an audit, loan, or other committee composed of 
directors as they may determine to be necessary or appropriate for the 
conduct of the business of the Subsidiary Holding Company and may 
prescribe the duties, constitution, and procedures thereof.

                           Article V--Officers

    Section 1. Positions. The officers of the Subsidiary Holding Company 
shall be a president, one or more vice presidents, a secretary, and a 
treasurer or comptroller, each of whom shall be elected by the board of 
directors. The board of directors may also designate the chairman of the 
board as an officer. The offices of the secretary and treasurer or 
comptroller may be held by the same individual and a vice president may 
also be either the secretary or the treasurer or comptroller. The board 
of directors may designate one or more vice presidents as executive vice 
president or senior vice president. The board of directors may also 
elect or authorize the appointment of such other officers as the 
business of the Subsidiary Holding Company may require. The officers 
shall have such authority and perform such duties as the board of 
directors may from time to time authorize or determine. In the absence 
of action by the board of directors, the officers shall have such powers 
and duties as generally pertain to their respective offices.
    Section 2. Election and Term of Office. The officers of the 
Subsidiary Holding Company shall be elected annually at the first 
meeting of the board of directors held after each annual meeting of the 
shareholders. If the election of officers is not held at such meeting, 
such election shall be held as soon thereafter as possible. Each officer 
shall hold office until a successor has been duly elected and qualified 
or until the officer's death, resignation, or removal in the manner 
hereinafter provided. Election or appointment of an officer, employee, 
or agent shall not of itself create contractual rights. The board of 
directors may authorize the Subsidiary Holding Company to enter into an 
employment contract with any officer in accordance with regulations of 
the Board; but no such contract shall impair the right of the board of 
directors to remove any officer at any time

[[Page 195]]

in accordance with section 3 of this article V.
    Section 3. Removal. Any officer may be removed by the board of 
directors whenever in its judgment the best interests of the Subsidiary 
Holding Company will be served thereby, but such removal, other than for 
cause, shall be without prejudice to the contractual rights, if any, of 
the officer so removed.
    Section 4. Vacancies. A vacancy in any office because of death, 
resignation, removal, disqualification, or otherwise may be filled by 
the board of directors for the unexpired portion of the term.
    Section 5. Remuneration. The remuneration of the officers shall be 
fixed from time to time by the board of directors.

           Article VI--Contracts, Loans, Checks, and Deposits

    Section 1. Contracts. To the extent permitted by regulations of the 
Board, and except as otherwise prescribed by these bylaws with respect 
to certificates for shares, the board of directors may authorize any 
officer, employee, or agent of the Subsidiary Holding Company to enter 
into any contract or execute and deliver any instrument in the name of 
and on behalf of the Subsidiary Holding Company. Such authority may be 
general or confined to specific instances.
    Section 2. Loans. No loans shall be contracted on behalf of the 
Subsidiary Holding Company and no evidence of indebtedness shall be 
issued in its name unless authorized by the board of directors. Such 
authority may be general or confined to specific instances.
    Section 3. Checks; Drafts. etc. All checks, drafts, or other orders 
for the payment of money, notes, or other evidences of indebtedness 
issued in the name of the Subsidiary Holding Company shall be signed by 
one or more officers, employees or agents of the Subsidiary Holding 
Company in such manner as shall from time to time be determined by the 
board of directors.
    Section 4. Deposits. All funds of the Subsidiary Holding Company not 
otherwise employed shall be deposited from time to time to the credit of 
the Subsidiary Holding Company in any duly authorized depositories as 
the board of directors may select.

         Article VII--Certificates for Shares and Their Transfer

    Section 1. Certificates for Shares. Certificates representing shares 
of capital stock of the Subsidiary Holding Company shall be in such form 
as shall be determined by the board of directors and approved by the 
Board. Such certificates shall be signed by the chief executive officer 
or by any other officer of the Subsidiary Holding Company authorized by 
the board of directors, attested by the secretary or an assistant 
secretary, and sealed with the corporate seal or a facsimile thereof. 
The signatures of such officers upon a certificate may be facsimiles if 
the certificate is manually signed on behalf of a transfer agent or a 
registrar other than the Subsidiary Holding Company itself or one of its 
employees. Each certificate for shares of capital stock shall be 
consecutively numbered or otherwise identified. The name and address of 
the person to whom the shares are issued, with the number of shares and 
date of issue, shall be entered on the stock transfer books of the 
Subsidiary Holding Company. All certificates surrendered to the 
Subsidiary Holding Company for transfer shall be canceled and no new 
certificate shall be issued until the former certificate for a like 
number of shares has been surrendered and canceled, except that in the 
case of a lost or destroyed certificate, a new certificate may be issued 
upon such terms and indemnity to the Subsidiary Holding Company as the 
board of directors may prescribe.
    Section 2. Transfer of Shares. Transfer of shares of capital stock 
of the Subsidiary Holding Company shall be made only on its stock 
transfer books. Authority for such transfer shall be given only by the 
holder of record or by his or her legal representative, who shall 
furnish proper evidence of such authority, or by his or her attorney 
authorized by a duly executed power of attorney and filed with the 
Subsidiary Holding Company. Such transfer shall be made only on 
surrender for cancellation of the certificate for such shares. The 
person in whose name shares of capital stock stand on the books of the 
Subsidiary Holding Company shall be deemed by the Subsidiary Holding 
Company to be the owner for all purposes.

                        Article VIII--Fiscal Year

    The fiscal year of the Subsidiary Holding Company shall end on the 
----------------of----------------each year. The appointment of 
accountants shall be subject to annual ratification by the shareholders.

                          Article IX--Dividends

    Subject to the terms of the Subsidiary Holding Company's charter and 
the regulations and orders of the Board, the board of directors may, 
from time to time, declare, and the Subsidiary Holding Company may pay, 
dividends on its outstanding shares of capital stock.

                        Article X--Corporate Seal

    The board of directors shall provide a Subsidiary Holding Company 
seal, which shall be two concentric circles between which shall be the 
name of the Subsidiary Holding Company. The year of incorporation or an 
emblem may appear in the center.

[[Page 196]]

                         Article XI--Amendments

    These bylaws may be amended in a manner consistent with regulations 
of the Board and shall be effective after: (i) approval of the amendment 
by a majority vote of the authorized board of directors, or by a 
majority vote of the votes cast by the shareholders of the Subsidiary 
Holding Company at any legal meeting, and (ii) receipt of any applicable 
regulatory approval. When a Subsidiary Holding Company fails to meet its 
quorum requirements, solely due to vacancies on the board, then the 
affirmative vote of a majority of the sitting board will be required to 
amend the bylaws.



PART 243_RESOLUTION PLANS--Table of Contents



Sec.
243.1 Authority and scope.
243.2 Definitions.
243.3 Resolution plan required.
243.4 Informational content of a resolution plan.
243.5 Review of resolution plans; resubmission of deficient resolution 
          plans.
243.6 Failure to cure deficiencies on resubmission of a resolution plan.
243.7 Consultation.
243.8 No limiting effect or private right of action; confidentiality of 
          resolution plans.
243.9 Enforcement.

    Authority: 12 U.S.C. 5365.

    Source: 76 FR 67340, Nov. 1, 2011, unless otherwise noted.



Sec. 243.1  Authority and scope.

    (a) Authority. This part is issued pursuant to section 165(d)(8) of 
the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-
Frank Act) (Pub. L. 111-203, 124 Stat. 1376, 1426-1427), 12 U.S.C. 
5365(d)(8), which requires the Board of Governors of the Federal Reserve 
System (Board) and the Federal Deposit Insurance Corporation 
(Corporation) to jointly issue rules implementing the provisions of 
section 165(d) of the Dodd-Frank Act.
    (b) Scope. This part applies to each covered company and establishes 
rules and requirements regarding the submission and content of a 
resolution plan, as well as procedures for review by the Board and 
Corporation of a resolution plan.



Sec. 243.2  Definitions.

    For purposes of this part:
    (a) Bankruptcy Code means Title 11 of the United States Code.
    (b) Company means a corporation, partnership, limited liability 
company, depository institution, business trust, special purpose entity, 
association, or similar organization, but does not include any 
organization, the majority of the voting securities of which are owned 
by the United States.
    (c) Control. A company controls another company when the first 
company, directly or indirectly, owns, or holds with power to vote, 25 
percent or more of any class of the second company's outstanding voting 
securities.
    (d) Core business lines means those business lines of the covered 
company, including associated operations, services, functions and 
support, that, in the view of the covered company, upon failure would 
result in a material loss of revenue, profit, or franchise value.
    (e) Council means the Financial Stability Oversight Council 
established by section 111 of the Dodd-Frank Act (12 U.S.C. 5321).
    (f) Covered company--(1) In general. A ``covered company'' means:
    (i) Any nonbank financial company supervised by the Board;
    (ii) Any bank holding company, as that term is defined in section 2 
of the Bank Holding Company Act, as amended (12 U.S.C. 1841), and the 
Board's Regulation Y (12 CFR part 225), that has $50 billion or more in 
total consolidated assets, as determined based on the average of the 
company's four most recent Consolidated Financial Statements for Bank 
Holding Companies as reported on the Federal Reserve's Form FR Y-9C 
(``FR Y-9C''); and
    (iii) Any foreign bank or company that is a bank holding company or 
is treated as a bank holding company under section 8(a) of the 
International Banking Act of 1978 (12 U.S.C. 3106(a)), and that has $50 
billion or more in total consolidated assets, as determined based on the 
foreign bank's or company's most recent annual or, as applicable, the 
average of the four most recent quarterly Capital and Asset Reports for 
Foreign Banking Organizations as reported on the Federal Reserve's Form 
FR Y-7Q (``FR Y-7Q'').

[[Page 197]]

    (2) Once a covered company meets the requirements described in 
paragraph (f)(1)(ii) or (iii) of this section, the company shall remain 
a covered company for purposes of this part unless and until the company 
has less than $45 billion in total consolidated assets, as determined 
based on the--
    (i) Average total consolidated assets as reported on the company's 
four most recent FR Y-9Cs, in the case of a covered company described in 
paragraph (f)(1)(ii) of this section; or
    (ii) Total consolidated assets as reported on the company's most 
recent annual FR Y-7Q, or, as applicable, average total consolidated 
assets as reported on the company's four most recent quarterly FR Y-7Qs, 
in the case of a covered company described in paragraph (f)(1)(iii) of 
this section. Nothing in this paragraph (f)(2) shall preclude a company 
from becoming a covered company pursuant to paragraph (f)(1) of this 
section.
    (3) Multi-tiered holding company. In a multi-tiered holding company 
structure, covered company means the top-tier of the multi-tiered 
holding company only.
    (4) Asset threshold for bank holding companies and foreign banking 
organizations. The Board may, pursuant to a recommendation of the 
Council, raise any asset threshold specified in paragraph (f)(1)(ii) or 
(iii) of this section.
    (5) Exclusion. A bridge financial company chartered pursuant to 12 
U.S.C. 5390(h) shall not be deemed to be a covered company hereunder.
    (g) Critical operations means those operations of the covered 
company, including associated services, functions and support, the 
failure or discontinuance of which, in the view of the covered company 
or as jointly directed by the Board and the Corporation, would pose a 
threat to the financial stability of the United States.
    (h) Depository institution has the same meaning as in section 
3(c)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1813(c)(1)) and 
includes a state-licensed uninsured branch, agency, or commercial 
lending subsidiary of a foreign bank.
    (i) Foreign banking organization means--
    (1) A foreign bank, as defined in section 1(b)(7) of the 
International Banking Act of 1978 (12 U.S.C. 3101(7)), that:
    (i) Operates a branch, agency, or commercial lending company 
subsidiary in the United States;
    (ii) Controls a bank in the United States; or
    (iii) Controls an Edge corporation acquired after March 5, 1987; and
    (2) Any company of which the foreign bank is a subsidiary.
    (j) Foreign-based company means any covered company that is not 
incorporated or organized under the laws of the United States.
    (k) Functionally regulated subsidiary has the same meaning as in 
section 5(c)(5) of the Bank Holding Company Act, as amended (12 U.S.C. 
1844(c)(5)).
    (l) Material entity means a subsidiary or foreign office of the 
covered company that is significant to the activities of a critical 
operation or core business line (as defined in this part).
    (m) Material financial distress with regard to a covered company 
means that:
    (1) The covered company has incurred, or is likely to incur, losses 
that will deplete all or substantially all of its capital, and there is 
no reasonable prospect for the company to avoid such depletion;
    (2) The assets of the covered company are, or are likely to be, less 
than its obligations to creditors and others; or
    (3) The covered company is, or is likely to be, unable to pay its 
obligations (other than those subject to a bona fide dispute) in the 
normal course of business.
    (n) Nonbank financial company supervised by the Board means a 
nonbank financial company or other company that the Council has 
determined under section 113 of the Dodd-Frank Act (12 U.S.C. 5323) 
shall be supervised by the Board and for which such determination is 
still in effect.
    (o) Rapid and orderly resolution means a reorganization or 
liquidation of the covered company (or, in the case of a covered company 
that is incorporated or organized in a jurisdiction other than the 
United States, the subsidiaries and operations of such foreign company 
that are domiciled in the United States) under the Bankruptcy Code that 
can be accomplished within a

[[Page 198]]

reasonable period of time and in a manner that substantially mitigates 
the risk that the failure of the covered company would have serious 
adverse effects on financial stability in the United States.
    (p) Subsidiary means a company that is controlled by another 
company, and an indirect subsidiary is a company that is controlled by a 
subsidiary of a company.
    (q) United States means the United States and includes any state of 
the United States, the District of Columbia, any territory of the United 
States, Puerto Rico, Guam, American Samoa, and the Virgin Islands.



Sec. 243.3  Resolution plan required.

    (a) Initial and annual resolution plans required. (1) Each covered 
company shall submit its initial resolution plan to the Board and the 
Corporation on or before the date set forth below (``Initial Submission 
Date''):
    (i) July 1, 2012, with respect to any covered company that, as of 
the effective date of this part, had $250 billion or more in total 
nonbank assets (or, in the case of a covered company that is a foreign-
based company, in total U.S. nonbank assets);
    (ii) July 1, 2013, with respect to any covered company that is not 
described in paragraph (a)(1)(i) of this section, and that, as of the 
effective date of this part had $100 billion or more in total nonbank 
assets (or, in the case of a covered company that is a foreign-based 
company, in total U.S. nonbank assets); and
    (iii) December 31, 2013, with respect to any other covered company 
that is a covered company as of the effective date of this part but that 
is not described in paragraph (a)(1)(i) or (ii) of this section.
    (2) A company that becomes a covered company after the effective 
date of this part shall submit its initial resolution plan no later than 
the next July 1 following the date the company becomes a covered 
company, provided such date occurs no earlier than 270 days after the 
date on which the company became a covered company.
    (3) After filing its initial resolution plan pursuant to paragraph 
(a)(1) or (2) of this section, each covered company shall annually 
submit a resolution plan to the Board and the Corporation on or before 
each anniversary date of its Initial Submission Date.
    (4) Notwithstanding anything to the contrary in this paragraph (a), 
the Board and Corporation may jointly determine that a covered company 
shall file its initial or annual resolution plan by a date other than as 
provided in this paragraph (a). The Board and the Corporation shall 
provide a covered company with written notice of a determination under 
this paragraph (a)(4) no later than 180 days prior to the date on which 
the Board and Corporation jointly determined to require the covered 
company to submit its resolution plan.
    (b) Authority to require interim updates and notice of material 
events--(1) In general. The Board and the Corporation may jointly 
require that a covered company file an update to a resolution plan 
submitted under paragraph (a) of this section, within a reasonable 
amount of time, as jointly determined by the Board and Corporation. The 
Board and the Corporation shall make a request pursuant to this 
paragraph (b)(1) in writing, and shall specify the portions or aspects 
of the resolution plan the covered company shall update.
    (2) Notice of material events. Each covered company shall provide 
the Board and the Corporation with a notice no later than 45 days after 
any event, occurrence, change in conditions or circumstances, or other 
change that results in, or could reasonably be foreseen to have, a 
material effect on the resolution plan of the covered company. Such 
notice should describe the event, occurrence or change and explain why 
the event, occurrence or change may require changes to the resolution 
plan. The covered company shall address any event, occurrence or change 
with respect to which it has provided notice pursuant to this paragraph 
(b)(2) in the following resolution plan submitted by the covered 
company.
    (3) Exception. A covered company shall not be required to file a 
notice under paragraph (b)(2) of this section if the date on which the 
covered company would be required to submit the notice under paragraph 
(b)(2) would be within 90 days prior to the date on which the

[[Page 199]]

covered company is required to file an annual resolution plan under 
paragraph (a) of this section.
    (c) Authority to require more frequent submissions or extend time 
period. The Board and Corporation may jointly:
    (1) Require that a covered company submit a resolution plan more 
frequently than required pursuant to paragraph (a) of this section; and
    (2) Extend the time period that a covered company has to submit a 
resolution plan or a notice following material events under paragraphs 
(a) and (b) of this section.
    (d) Access to information. In order to allow evaluation of the 
resolution plan, each covered company must provide the Board and the 
Corporation such information and access to personnel of the covered 
company as the Board and the Corporation jointly determine during the 
period for reviewing the resolution plan is necessary to assess the 
credibility of the resolution plan and the ability of the covered 
company to implement the resolution plan. The Board and the Corporation 
will rely to the fullest extent possible on examinations conducted by or 
on behalf of the appropriate Federal banking agency for the relevant 
company.
    (e) Board of directors approval of resolution plan. Prior to 
submission of a resolution plan under paragraph (a) of this section, the 
resolution plan of a covered company shall be approved by:
    (1) The board of directors of the covered company and noted in the 
minutes; or
    (2) In the case of a foreign-based covered company only, a delegee 
acting under the express authority of the board of directors of the 
covered company to approve the resolution plan.
    (f) Resolution plans provided to the Council. The Board shall make 
the resolution plans and updates submitted by the covered company 
pursuant to this section available to the Council upon request.



Sec. 243.4  Informational content of a resolution plan.

    (a) In general--(1) Domestic covered companies. Except as otherwise 
provided in paragraph (a)(3) of this section, the resolution plan of a 
covered company that is organized or incorporated in the United States 
shall include the information specified in paragraphs (b) through (i) of 
this section with respect to the subsidiaries and operations that are 
domiciled in the United States as well as the foreign subsidiaries, 
offices, and operations of the covered company.
    (2) Foreign-based covered companies. Except as otherwise provided in 
paragraph (a)(3) of the section, the resolution plan of a covered 
company that is organized or incorporated in a jurisdiction other than 
the United States (other than a bank holding company) or that is a 
foreign banking organization shall include:
    (i) The information specified in paragraphs (b) through (i) of this 
section with respect to the subsidiaries, branches and agencies, and 
critical operations and core business lines, as applicable, that are 
domiciled in the United States or conducted in whole or material part in 
the United States. With respect to the information specified in 
paragraph (g) of this section, the resolution plan of a foreign-based 
covered company shall also identify, describe in detail, and map to 
legal entity the interconnections and interdependencies among the U.S. 
subsidiaries, branches and agencies, and critical operations and core 
business lines of the foreign-based covered company and any foreign-
based affiliate; and
    (ii) A detailed explanation of how resolution planning for the 
subsidiaries, branches and agencies, and critical operations and core 
business lines of the foreign-based covered company that are domiciled 
in the United States or conducted in whole or material part in the 
United States is integrated into the foreign-based covered company's 
overall resolution or other contingency planning process.
    (3) Tailored resolution plan--(i) Eligible covered company.--
Paragraph (a)(3)(ii) of this section applies to any covered company that 
as of December 31 of the calendar year prior to the date its resolution 
plan is required to be submitted under this part--
    (A) Has less than $100 billion in total nonbank assets (or, in the 
case of a covered company that is a foreign-based company, in total U.S. 
nonbank assets); and

[[Page 200]]

    (B) The total insured depository institution assets of which 
comprise 85 percent or more of the covered company's total consolidated 
assets (or, in the case of a covered company that is a foreign-based 
company, the assets of the U.S. insured depository institution 
operations, branches, and agencies of which comprise 85 percent or more 
of such covered company's U.S. total consolidated assets).
    (ii) Tailored resolution plan elements. A covered company described 
in paragraph (a)(3)(i) of this section may file a resolution plan that 
is limited to the following items--
    (A) An executive summary, as specified in paragraph (b) of this 
section;
    (B) The information specified in paragraphs (c) through (f) and 
paragraph (h) of this section, but only with respect to the covered 
company and its nonbanking material entities and operations;
    (C) The information specified in paragraphs (g) and (i) of this 
section with respect to the covered company and all of its insured 
depository institutions (or, in the case of a covered company that is a 
foreign-based company, the U.S. insured depository institutions, 
branches, and agencies) and nonbank material entities and operations. 
The interconnections and interdependencies identified pursuant to (g) of 
this section shall be included in the analysis provided pursuant to 
paragraph (c) of this section.
    (iii) Notice. A covered company that meets the requirements of 
paragraph (a)(3)(i) of this section and that intends to submit a 
resolution plan pursuant to this paragraph (a)(3), shall provide the 
Board and Corporation with written notice of such intent and its 
eligibility under paragraph (a)(3)(i) no later than 270 days prior to 
the date on which the covered company is required to submit its 
resolution plan. Within 90 of receiving such notice, the Board and 
Corporation may jointly determine that the covered company must submit a 
resolution plan that meets some or all of the requirements as set forth 
in paragraph (a)(1) or (2) of this section, as applicable.
    (4) Required and prohibited assumptions. In preparing its plan for 
rapid and orderly resolution in the event of material financial distress 
or failure required by this part, a covered company shall:
    (i) Take into account that such material financial distress or 
failure of the covered company may occur under the baseline, adverse and 
severely adverse economic conditions provided to the covered company by 
the Board pursuant to 12 U.S.C. 5365(i)(1)(B); provided, however, a 
covered company may submit its initial resolution plan assuming the 
baseline conditions only, or, if a baseline scenario is not then 
available, a reasonable substitute developed by the covered company; and
    (ii) Not rely on the provision of extraordinary support by the 
United States or any other government to the covered company or its 
subsidiaries to prevent the failure of the covered company.
    (b) Executive summary. Each resolution plan of a covered company 
shall include an executive summary describing:
    (1) The key elements of the covered company's strategic plan for 
rapid and orderly resolution in the event of material financial distress 
at or failure of the covered company.
    (2) Material changes to the covered company's resolution plan from 
the company's most recently filed resolution plan (including any notices 
following a material event or updates to the resolution plan).
    (3) Any actions taken by the covered company since filing of the 
previous resolution plan to improve the effectiveness of the covered 
company's resolution plan or remediate or otherwise mitigate any 
material weaknesses or impediments to effective and timely execution of 
the resolution plan.
    (c) Strategic analysis. Each resolution plan shall include a 
strategic analysis describing the covered company's plan for rapid and 
orderly resolution in the event of material financial distress or 
failure of the covered company. Such analysis shall--
    (1) Include detailed descriptions of the--
    (i) Key assumptions and supporting analysis underlying the covered 
company's resolution plan, including any assumptions made concerning the 
economic or financial conditions that

[[Page 201]]

would be present at the time the covered company sought to implement 
such plan;
    (ii) Range of specific actions to be taken by the covered company to 
facilitate a rapid and orderly resolution of the covered company, its 
material entities, and its critical operations and core business lines 
in the event of material financial distress or failure of the covered 
company;
    (iii) Funding, liquidity and capital needs of, and resources 
available to, the covered company and its material entities, which shall 
be mapped to its critical operations and core business lines, in the 
ordinary course of business and in the event of material financial 
distress at or failure of the covered company;
    (iv) Covered company's strategy for maintaining operations of, and 
funding for, the covered company and its material entities, which shall 
be mapped to its critical operations and core business lines;
    (v) Covered company's strategy in the event of a failure or 
discontinuation of a material entity, core business line or critical 
operation, and the actions that will be taken by the covered company to 
prevent or mitigate any adverse effects of such failure or 
discontinuation on the financial stability of the United States; 
provided, however, if any such material entity is subject to an 
insolvency regime other than the Bankruptcy Code, a covered company may 
exclude that entity from its strategic analysis unless that entity 
either has $50 billion or more in total assets or conducts a critical 
operation; and
    (vi) Covered company's strategy for ensuring that any insured 
depository institution subsidiary of the covered company will be 
adequately protected from risks arising from the activities of any 
nonbank subsidiaries of the covered company (other than those that are 
subsidiaries of an insured depository institution);
    (2) Identify the time period(s) the covered company expects would be 
needed for the covered company to successfully execute each material 
aspect and step of the covered company's plan;
    (3) Identify and describe any potential material weaknesses or 
impediments to effective and timely execution of the covered company's 
plan;
    (4) Discuss the actions and steps the covered company has taken or 
proposes to take to remediate or otherwise mitigate the weaknesses or 
impediments identified by the covered company, including a timeline for 
the remedial or other mitigatory action; and
    (5) Provide a detailed description of the processes the covered 
company employs for:
    (i) Determining the current market values and marketability of the 
core business lines, critical operations, and material asset holdings of 
the covered company;
    (ii) Assessing the feasibility of the covered company's plans 
(including timeframes) for executing any sales, divestitures, 
restructurings, recapitalizations, or other similar actions contemplated 
in the covered company's resolution plan; and
    (iii) Assessing the impact of any sales, divestitures, 
restructurings, recapitalizations, or other similar actions on the 
value, funding, and operations of the covered company, its material 
entities, critical operations and core business lines.
    (d) Corporate governance relating to resolution planning. Each 
resolution plan shall:
    (1) Include a detailed description of:
    (i) How resolution planning is integrated into the corporate 
governance structure and processes of the covered company;
    (ii) The covered company's policies, procedures, and internal 
controls governing preparation and approval of the covered company's 
resolution plan;
    (iii) The identity and position of the senior management official(s) 
of the covered company that is primarily responsible for overseeing the 
development, maintenance, implementation, and filing of the covered 
company's resolution plan and for the covered company's compliance with 
this part; and
    (iv) The nature, extent, and frequency of reporting to senior 
executive officers and the board of directors of

[[Page 202]]

the covered company regarding the development, maintenance, and 
implementation of the covered company's resolution plan;
    (2) Describe the nature, extent, and results of any contingency 
planning or similar exercise conducted by the covered company since the 
date of the covered company's most recently filed resolution plan to 
assess the viability of or improve the resolution plan of the covered 
company; and
    (3) Identify and describe the relevant risk measures used by the 
covered company to report credit risk exposures both internally to its 
senior management and board of directors, as well as any relevant risk 
measures reported externally to investors or to the covered company's 
appropriate Federal regulator.
    (e) Organizational structure and related information. Each 
resolution plan shall--
    (1) Provide a detailed description of the covered company's 
organizational structure, including:
    (i) A hierarchical list of all material entities within the covered 
company's organization (including legal entities that directly or 
indirectly hold such material entities) that:
    (A) Identifies the direct holder and the percentage of voting and 
nonvoting equity of each legal entity and foreign office listed; and
    (B) The location, jurisdiction of incorporation, licensing, and key 
management associated with each material legal entity and foreign office 
identified;
    (ii) A mapping of the covered company's critical operations and core 
business lines, including material asset holdings and liabilities 
related to such critical operations and core business lines, to material 
entities;
    (2) Provide an unconsolidated balance sheet for the covered company 
and a consolidating schedule for all material entities that are subject 
to consolidation by the covered company;
    (3) Include a description of the material components of the 
liabilities of the covered company, its material entities, critical 
operations and core business lines that, at a minimum, separately 
identifies types and amounts of the short-term and long-term 
liabilities, the secured and unsecured liabilities, and subordinated 
liabilities;
    (4) Identify and describe the processes used by the covered company 
to:
    (i) Determine to whom the covered company has pledged collateral;
    (ii) Identify the person or entity that holds such collateral; and
    (iii) Identify the jurisdiction in which the collateral is located, 
and, if different, the jurisdiction in which the security interest in 
the collateral is enforceable against the covered company;
    (5) Describe any material off-balance sheet exposures (including 
guarantees and contractual obligations) of the covered company and its 
material entities, including a mapping to its critical operations and 
core business lines;
    (6) Describe the practices of the covered company, its material 
entities and its core business lines related to the booking of trading 
and derivatives activities;
    (7) Identify material hedges of the covered company, its material 
entities, and its core business lines related to trading and derivative 
activities, including a mapping to legal entity;
    (8) Describe the hedging strategies of the covered company;
    (9) Describe the process undertaken by the covered company to 
establish exposure limits;
    (10) Identify the major counterparties of the covered company and 
describe the interconnections, interdependencies and relationships with 
such major counterparties;
    (11) Analyze whether the failure of each major counterparty would 
likely have an adverse impact on or result in the material financial 
distress or failure of the covered company; and
    (12) Identify each trading, payment, clearing, or settlement system 
of which the covered company, directly or indirectly, is a member and on 
which the covered company conducts a material number or value amount of 
trades or transactions. Map membership in each such system to the 
covered company's material entities, critical operations and core 
business lines.
    (f) Management information systems. (1) Each resolution plan shall 
include--

[[Page 203]]

    (i) A detailed inventory and description of the key management 
information systems and applications, including systems and applications 
for risk management, accounting, and financial and regulatory reporting, 
used by the covered company and its material entities. The description 
of each system or application provided shall identify the legal owner or 
licensor, the use or function of the system or application, service 
level agreements related thereto, any software and system licenses, and 
any intellectual property associated therewith;
    (ii) A mapping of the key management information systems and 
applications to the material entities, critical operations and core 
business lines of the covered company that use or rely on such systems 
and applications;
    (iii) An identification of the scope, content, and frequency of the 
key internal reports that senior management of the covered company, its 
material entities, critical operations and core business lines use to 
monitor the financial health, risks, and operation of the covered 
company, its material entities, critical operations and core business 
lines; and
    (iv) A description of the process for the appropriate supervisory or 
regulatory agencies to access the management information systems and 
applications identified in paragraph (f) of this section; and
    (v) A description and analysis of--
    (A) The capabilities of the covered company's management information 
systems to collect, maintain, and report, in a timely manner to 
management of the covered company, and to the Board, the information and 
data underlying the resolution plan; and
    (B) Any deficiencies, gaps or weaknesses in such capabilities, and a 
description of the actions the covered company intends to take to 
promptly address such deficiencies, gaps, or weaknesses, and the time 
frame for implementing such actions.
    (2) The Board will use its examination authority to review the 
demonstrated capabilities of each covered company to satisfy the 
requirements of paragraph (f)(1)(v) of this section. The Board will 
share with the Corporation information regarding the capabilities of the 
covered company to collect, maintain, and report in a timely manner 
information and data underlying the resolution plan.
    (g) Interconnections and interdependencies. To the extent not 
elsewhere provided, identify and map to the material entities the 
interconnections and interdependencies among the covered company and its 
material entities, and among the critical operations and core business 
lines of the covered company that, if disrupted, would materially affect 
the funding or operations of the covered company, its material entities, 
or its critical operations or core business lines. Such interconnections 
and interdependencies may include:
    (1) Common or shared personnel, facilities, or systems (including 
information technology platforms, management information systems, risk 
management systems, and accounting and recordkeeping systems);
    (2) Capital, funding, or liquidity arrangements;
    (3) Existing or contingent credit exposures;
    (4) Cross-guarantee arrangements, cross-collateral arrangements, 
cross-default provisions, and cross-affiliate netting agreements;
    (5) Risk transfers; and
    (6) Service level agreements.
    (h) Supervisory and regulatory information. Each resolution plan 
shall--
    (1) Identify any:
    (i) Federal, state, or foreign agency or authority (other than a 
Federal banking agency) with supervisory authority or responsibility for 
ensuring the safety and soundness of the covered company, its material 
entities, critical operations and core business lines; and
    (ii) Other Federal, state, or foreign agency or authority (other 
than a Federal banking agency) with significant supervisory or 
regulatory authority over the covered company, and its material entities 
and critical operations and core business lines.
    (2) Identify any foreign agency or authority responsible for 
resolving a foreign-based material entity and critical operations or 
core business lines of the covered company; and
    (3) Include contact information for each agency identified in 
paragraphs (h)(1) and (2) of this section.

[[Page 204]]

    (i) Contact information. Each resolution plan shall identify a 
senior management official at the covered company responsible for 
serving as a point of contact regarding the resolution plan of the 
covered company, and include contact information (including phone 
number, email address, and physical address) for a senior management 
official of the material entities of the covered company.
    (j) Inclusion of previously submitted resolution plan informational 
elements by reference. An annual submission of or update to a resolution 
plan submitted by a covered company may include by reference 
informational elements (but not strategic analysis or executive summary 
elements) from a resolution plan previously submitted by the covered 
company to the Board and the Corporation, provided that:
    (1) The resolution plan seeking to include informational elements by 
reference clearly indicates:
    (i) The informational element the covered company is including by 
reference; and
    (ii) Which of the covered company's previously submitted resolution 
plan(s) originally contained the information the covered company is 
including by reference; and
    (2) The covered company certifies that the information the covered 
company is including by reference remains accurate.
    (k) Exemptions. The Board and the Corporation may jointly exempt a 
covered company from one or more of the requirements of this section.



Sec. 243.5  Review of resolution plans; resubmission of deficient
resolution plans.

    (a) Acceptance of submission and review. (1) The Board and 
Corporation shall review a resolution plan submitted under section this 
subpart within 60 days.
    (2) If the Board and Corporation jointly determine within the time 
described in paragraph (a)(1) of this section that a resolution plan is 
informationally incomplete or that substantial additional information is 
necessary to facilitate review of the resolution plan:
    (i) The Board and Corporation shall jointly inform the covered 
company in writing of the area(s) in which the resolution plan is 
informationally incomplete or with respect to which additional 
information is required; and
    (ii) The covered company shall resubmit an informationally complete 
resolution plan or such additional information as jointly requested to 
facilitate review of the resolution plan no later than 30 days after 
receiving the notice described in paragraph (a)(2)(i) of this section, 
or such other time period as the Board and Corporation may jointly 
determine.
    (b) Joint determination regarding deficient resolution plans. If the 
Board and Corporation jointly determine that the resolution plan of a 
covered company submitted under Sec. 243.3(a) is not credible or would 
not facilitate an orderly resolution of the covered company under the 
Bankruptcy Code, the Board and Corporation shall jointly notify the 
covered company in writing of such determination. Any joint notice 
provided under this paragraph shall identify the aspects of the 
resolution plan that the Board and Corporation jointly determined to be 
deficient.
    (c) Resubmission of a resolution plan. Within 90 days of receiving a 
notice of deficiencies issued pursuant to paragraph (b) of this section, 
or such shorter or longer period as the Board and Corporation may 
jointly determine, a covered company shall submit a revised resolution 
plan to the Board and Corporation that addresses the deficiencies 
jointly identified by the Board and Corporation, and that discusses in 
detail:
    (1) The revisions made by the covered company to address the 
deficiencies jointly identified by the Board and the Corporation;
    (2) Any changes to the covered company's business operations and 
corporate structure that the covered company proposes to undertake to 
facilitate implementation of the revised resolution plan (including a 
timeline for the execution of such planned changes); and
    (3) Why the covered company believes that the revised resolution 
plan

[[Page 205]]

is credible and would result in an orderly resolution of the covered 
company under the Bankruptcy Code.
    (d) Extensions of time. Upon their own initiative or a written 
request by a covered company, the Board and Corporation may jointly 
extend any time period under this section. Each extension request shall 
be supported by a written statement of the covered company describing 
the basis and justification for the request.



Sec. 243.6  Failure to cure deficiencies on resubmission of a 
resolution plan.

    (a) In general. The Board and Corporation may jointly determine that 
a covered company or any subsidiary of a covered company shall be 
subject to more stringent capital, leverage, or liquidity requirements, 
or restrictions on the growth, activities, or operations of the covered 
company or the subsidiary if:
    (1) The covered company fails to submit a revised resolution plan 
under Sec. 243.5(c) within the required time period; or
    (2) The Board and the Corporation jointly determine that a revised 
resolution plan submitted under Sec. 243.5(c) does not adequately 
remedy the deficiencies jointly identified by the Board and the 
Corporation under Sec. 243.5(b).
    (b) Duration of requirements or restrictions. Any requirements or 
restrictions imposed on a covered company or a subsidiary thereof 
pursuant to paragraph (a) of this section shall cease to apply to the 
covered company or subsidiary, respectively, on the date that the Board 
and the Corporation jointly determine the covered company has submitted 
a revised resolution plan that adequately remedies the deficiencies 
jointly identified by the Board and the Corporation under Sec. 
243.5(b).
    (c) Divestiture. The Board and Corporation, in consultation with the 
Council, may jointly, by order, direct the covered company to divest 
such assets or operations as are jointly identified by the Board and 
Corporation if:
    (1) The Board and Corporation have jointly determined that the 
covered company or a subsidiary thereof shall be subject to requirements 
or restrictions pursuant to paragraph (a) of this section; and
    (2) The covered company has failed, within the 2-year period 
beginning on the date on which the determination to impose such 
requirements or restrictions under paragraph (a) of this section was 
made, to submit a revised resolution plan that adequately remedies the 
deficiencies jointly identified by the Board and the Corporation under 
Sec. 243.5(b); and
    (3) The Board and Corporation jointly determine that the divestiture 
of such assets or operations is necessary to facilitate an orderly 
resolution of the covered company under the Bankruptcy Code in the event 
the company was to fail.



Sec. 243.7  Consultation.

    Prior to issuing any notice of deficiencies under Sec. 243.5(b), 
determining to impose requirements or restrictions under Sec. 243.6(a), 
or issuing a divestiture order pursuant to Sec. 243.6(c) with respect 
to a covered company that is likely to have a significant impact on a 
functionally regulated subsidiary or a depository institution subsidiary 
of the covered company, the Board--
    (a) Shall consult with each Council member that primarily supervises 
any such subsidiary; and
    (b) May consult with any other Federal, state, or foreign supervisor 
as the Board considers appropriate.



Sec. 243.8  No limiting effect or private right of action; 
confidentiality of resolution plans.

    (a) No limiting effect on bankruptcy or other resolution 
proceedings. A resolution plan submitted pursuant to this part shall not 
have any binding effect on:
    (1) A court or trustee in a proceeding commenced under the 
Bankruptcy Code;
    (2) A receiver appointed under Title II of the Dodd-Frank Act (12 
U.S.C. 5381 et seq.);
    (3) A bridge financial company chartered pursuant to 12 U.S.C. 
5390(h); or
    (4) Any other authority that is authorized or required to resolve a 
covered company (including any subsidiary or affiliate thereof) under 
any other provision of Federal, state, or foreign law.

[[Page 206]]

    (b) No private right of action. Nothing in this part creates or is 
intended to create a private right of action based on a resolution plan 
prepared or submitted under this part or based on any action taken by 
the Board or the Corporation with respect to any resolution plan 
submitted under this part.
    (c) Form of resolution plans. Each resolution plan of a covered 
company shall be divided into a public section and a confidential 
section. Each covered company shall segregate and separately identify 
the public section from the confidential section. The public section 
shall consist of an executive summary of the resolution plan that 
describes the business of the covered company and includes, to the 
extent material to an understanding of the covered company:
    (1) The names of material entities;
    (2) A description of core business lines;
    (3) Consolidated or segment financial information regarding assets, 
liabilities, capital and major funding sources;
    (4) A description of derivative activities and hedging activities;
    (5) A list of memberships in material payment, clearing and 
settlement systems;
    (6) A description of foreign operations;
    (7) The identities of material supervisory authorities;
    (8) The identities of the principal officers;
    (9) A description of the corporate governance structure and 
processes related to resolution planning;
    (10) A description of material management information systems; and
    (11) A description, at a high level, of the covered company's 
resolution strategy, covering such items as the range of potential 
purchasers of the covered company, its material entities and core 
business lines.
    (d) Confidential treatment of resolution plans. (1) The 
confidentiality of resolution plans and related materials shall be 
determined in accordance with applicable exemptions under the Freedom of 
Information Act (5 U.S.C. 552(b)) and the Board's Rules Regarding 
Availability of Information (12 CFR part 261), and the Corporation's 
Disclosure of Information Rules (12 CFR part 309).
    (2) Any covered company submitting a resolution plan or related 
materials pursuant to this part that desires confidential treatment of 
the information under 5 U.S.C. 552(b)(4), the Board's Rules Regarding 
Availability of Information (12 CFR part 261), and the Corporation's 
Disclosure of Information Rules (12 CFR part 309) may file a request for 
confidential treatment in accordance with those rules.
    (3) To the extent permitted by law, information comprising the 
Confidential Section of a resolution plan will be treated as 
confidential.
    (4) To the extent permitted by law, the submission of any nonpublic 
data or information under this part shall not constitute a waiver of, or 
otherwise affect, any privilege arising under Federal or state law 
(including the rules of any Federal or state court) to which the data or 
information is otherwise subject. Privileges that apply to resolution 
plans and related materials are protected pursuant to Section 18(x) of 
the FDI Act, 12 U.S.C. 1828(x).



Sec. 243.9  Enforcement.

    The Board and Corporation may jointly enforce an order jointly 
issued by the Board and Corporation under Sec. 243.6(a) or 243.6(c) of 
this part. The Board, in consultation with the Corporation, may take any 
action to address any violation of this part by a covered company under 
section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818).



PART 250_MISCELLANEOUS INTERPRETATIONS--Table of Contents



                             Interpretations

Sec.
250.141 Member bank purchase of stock of ``operations subsidiaries.''
250.142 Meaning of ``obligor or maker'' in determining limitation on 
          securities investments by member State banks.
250.143 Member bank purchase of stock of foreign operations 
          subsidiaries.
250.160 Federal funds transactions.
250.163 Inapplicability of amount limitations to ``ineligible 
          acceptances.''
250.164 Bankers' acceptances.
250.165 Bankers' acceptances: definition of participations.

[[Page 207]]

250.166 Treatment of mandatory convertible debt and subordinated notes 
          of state member banks and bank holding companies as 
          ``capital''.
250.180 Reports of changes in control of management.
250.181 Reports of change in control of bank management incident to a 
          merger.
250.182 Terms defining competitive effects of proposed mergers.
250.200 Investment in bank premises by holding company banks.
250.220 Whether member bank acting as trustee is prohibited by section 
          20 of the Banking Act of 1933 from acquiring majority of 
          shares of mutual fund.
250.221 Issuance and sale of short-term debt obligations by bank holding 
          companies.
250.260 Miscellaneous interpretations; gold coin and bullion.

         Interpretations of Section 32 of the Glass-Steagall Act

250.400 Service of open-end investment company.
250.401 Director serving member bank and closed-end investment company 
          being organized.
250.402 Service as officer, director, or employee of licensee 
          corporation under the Small Business Investment Act of 1958.
250.403 Service of member bank and real estate investment company.
250.404 Serving as director of member bank and corporation selling own 
          stock.
250.405 No exception granted a special or limited partner.
250.406 Serving member bank and investment advisor with mutual fund 
          affiliation.
250.407 Interlocking relationship involving securities affiliate of 
          brokerage firm.
250.408 Short-term negotiable notes of banks not securities under 
          section 32, Banking Act of 1933.
250.409 Investment for own account affects applicability of section 32.
250.410 Interlocking relationships between bank and its commingled 
          investment account.
250.411 Interlocking relationships between member bank and variable 
          annuity insurance company.
250.412 Interlocking relationships between member bank and insurance 
          company-mutual fund complex.
250.413 ``Bank-eligible'' securities activities.

    Authority: 12 U.S.C. 78, 248(i), 371c(f) and 371c-1(e).

    Source: 33 FR 9866, July 10, 1968, unless otherwise noted.

                             Interpretations



Sec. 250.141  Member bank purchase of stock of ``operations subsidiaries.''

    (a) The Board of Governors has reexamined its position that the so-
called ``stock-purchase prohibition'' of section 5136 of the Revised 
Statutes (12 U.S.C. 24), which is made applicable to member State banks 
by the 20th paragraph of section 9 of the Federal Reserve Act (12 U.S.C. 
335), forbids the purchase by a member bank ``for its own account of any 
shares of stock of any corporation'' (the statutory language), except as 
specifically permitted by provisions of Federal law or as comprised 
within the concept of ``such incidental powers as shall be necessary to 
carry on the business of banking'', referred to in the first sentence of 
paragraph ``Seventh'' of R.S. 5136.
    (b) In 1966 the Board expressed the view that said incidental powers 
do not permit member banks to purchase stock of ``operations 
subsidiaries''--that is, organizations designed to serve, in effect, as 
separately-incorporated departments of the bank, performing, at 
locations at which the bank is authorized to engage in business, 
functions that the bank is empowered to perform directly. (See 1966 
Federal Reserve Bulletin 1151.)
    (c) The Board now considers that the incidental powers clause 
permits a bank to organize its operations in the manner that it believes 
best facilitates the performance thereof. One method of organization is 
through departments; another is through separate incorporation of 
particular operations. In other words, a wholly owned subsidiary 
corporation engaged in activities that the bank itself may perform is 
simply a convenient alternative organizational arrangement.
    (d) Reexamination of the apparent purposes and legislative history 
of the stock-purchase prohibition referred to above has led the Board to 
conclude that such prohibition should not be interpreted to preclude a 
member bank from adopting such an organizational arrangement unless its 
use would be inconsistent with other Federal law, either statutory or 
judicial.

[[Page 208]]

    (e) In view of the relationship between the operation of certain 
subsidiaries and the branch banking laws, the Board has also reexamined 
its rulings on what constitutes ``money lent'' for the purposes of 
section 5155 of the Revised Statutes (12 U.S.C. 36), which provides that 
``The termbranch * * * shall be held to include any branch bank, branch 
office, branch agency, additional office, or any branch place of 
business * * * at which deposits are received, or checks paid, or money 
lent.'' \1\
---------------------------------------------------------------------------

    \1\ In the Board's judgment, the statutory enumeration of three 
specific functions that establish branch status is not meant to be 
exclusive but to assure that offices at which any of these functions is 
performed are regarded as branches by the bank regulatory authorities. 
In applying the statute the emphasis should be to assure that 
significant banking functions are made available to the public only at 
governmentally authorized offices.
---------------------------------------------------------------------------

    (f) The Board noted in its 1967 interpretation that offices that are 
open to the public and staffed by employees of the bank who regularly 
engage in soliciting borrowers, negotiating terms, and processing 
applications for loans (so-called loan production offices) constitute 
branches. (1967 Federal Reserve Bulletin 1334.) The Board also noted 
that later in that year it considered the question whether a bank 
holding company may acquire the stock of a so-called mortgage company on 
the basis that the company would be engaged in ``furnishing services to 
or performing services for such bank holding company or its banking 
subsidiaries'' (the so-called servicing exemption of section 4(c)(1)(C) 
of the Bank Holding Company Act; 12 U.S.C. 1843). In concluding 
affirmatively, the Board stated that ``the appropriate test for 
determining whether the company may be considered as within the 
servicing exemption is whether the company will perform as principal any 
banking activities--such as receiving deposits, paying checks, extending 
credit, conducting a trust department, and the like. In other words, if 
the mortgage company is to act merely as an adjunct to a bank for the 
purpose of facilitating the bank's operations, the company may 
appropriately be considered as within the scope of the servicing 
exemption.'' (1967 Federal Reserve Bulletin 1911; 12 CFR 225.122.)
    (g) The Board believes that the purposes of the branch banking laws 
and the servicing exemption are related. Generally, what constitutes a 
branch does not constitute a servicing organization and, vice versa, an 
office that only performs servicing functions should not be considered a 
branch. (See 1958 Federal Reserve Bulletin 431, last paragraph; 12 CFR 
225.104(e).) When viewed together, the above-cited interpretations on 
loan production offices and mortgage companies represent a departure 
from this principle. In reconsidering the laws involved, the Board has 
concluded that a test similar to that adopted with respect to the 
servicing exemption under the Bank Holding Company Act is appropriate 
for use in determining whether or not what constitutes money [is] lent 
at a particular office, for the purpose of the Federal branch banking 
laws.
    (h) Accordingly, the Board considers that the following activities, 
individually or collectively, do not constitute the lending of money 
within the meaning of section 5155 of the revised statutes: Soliciting 
loans on behalf of a bank (or a branch thereof), assembling credit 
information, making property inspections and appraisals, securing title 
information, preparing applications for loans (including making 
recommendations with respect to action thereon), soliciting investors to 
purchase loans from the bank, seeking to have such investors contract 
with the bank for the servicing of such loans, and other similar agent-
type activities. When loans are approved and funds disbursed solely at 
the main office or a branch of the bank, an office at which only 
preliminary and servicing steps are taken is not a place where money 
[is] lent. Because preliminary and servicing steps of the kinds 
described do not constitute the performance of significant banking 
functions of the type that Congress contemplated should be performed 
only at governmentally approved offices, such office is accordingly not 
a branch.
    (i) To summarize the foregoing, the Board has concluded that, 
insofar as Federal law is concerned, a member

[[Page 209]]

bank may purchase for its own account shares of a corporation to 
perform, at locations at which the bank is authorized to engage in 
business, functions that the bank is empowered to perform directly. 
Also, a member bank may establish and operate, at any location in the 
United States, a loan production office of the type described herein. 
Such offices may be established and operated by the bank either 
directly, or indirectly through a wholly-owned subsidiary corporation.
    (j) This interpretation supersedes both the Board's 1966 ruling on 
operations subsidiaries and its 1967 ruling on loan production offices, 
referred to above.

(12 U.S.C. 24, 36, 321, 335)

[33 FR 11813, Aug. 21, 1968; 43 FR 53414, Nov. 16, 1978]



Sec. 250.142  Meaning of ``obligor or maker'' in determining limitation
on securities investments by member State banks.

    (a) From time to time the New York State Dormitory Authority offers 
issues of bonds with respect to each of which a different educational 
institution enters into an agreement to make rental payments to the 
Authority sufficient to cover interest and principal thereon when due. 
The Board of Governors of the Federal Reserve System has been asked 
whether a member State bank may invest up to 10 percent of its capital 
and surplus in each such issue.
    (b) Paragraph Seventh of section 5136 of the U.S. Revised Statutes 
(12 U.S.C. 24) provides that ``In no event shall the total amount of the 
investment securities of any one obligor or maker, held by [a national 
bank] for its own account, exceed at any time 10 per centum of its 
capital stock * * * and surplus fund''. That limitation is made 
applicable to member State banks by the 20th paragraph of section 9 of 
the Federal Reserve Act (12 U.S.C. 335).
    (c) The Board considers that, within the meaning of these provisions 
of law, obligor does not include any person that acts solely as a 
conduit for transmission of funds received from another source, 
irrespective of a promise by such person to pay principal or interest on 
the obligation. While an obligor does not cease to be such merely 
because a third person has agreed to pay the obligor amounts sufficient 
to cover principal and interest on the obligations when due, a person 
that promises to pay an obligation, but as a practical matter has no 
resources with which to assume payment of the obligation except the 
amounts received from such third person, is not an obligor within the 
meaning of section 5136.
    (d) Review of the New York Dormitory Authority Act (N.Y. Public 
Authorities Law sections 1675-1690), the Authority's interpretation 
thereof, and materials with respect to the Authority's ``Revenue Bonds, 
Mills College of Education Issue, Series A'' indicates that the 
Authority is not an obligor on those and similar bonds. Although the 
Authority promises to make all payments of principal and interest, a 
bank that invests in such bonds cannot be reasonably considered as doing 
so in reliance on the promise and responsibility of the Authority. 
Despite the Authority's obligation to make payments on the bonds, if the 
particular college fails to perform its agreement to make rental 
payments to the Authority sufficient to cover all payments of bond 
principal and interest when due, as a practical matter the sole source 
of funds for payments to the bondholder is the particular college. The 
Authority has general borrowing power but no resources from which to 
assure repayment of any borrowing except from the particular colleges, 
and rentals received from one college may not be used to service bonds 
issued for another.
    (e) Accordingly, the Board has concluded that each college for which 
the Authority issues obligations is the sole obligor thereon. A member 
State bank may therefore invest an amount up to 10 percent of its 
capital and surplus in the bonds of a particular college that are 
eligible investments under the Investment Securities Regulation of the 
Comptroller of the Currency (12 CFR Part 1), whether issued directly or 
indirectly through the Dormitory Authority.

(12 U.S.C. 24, 335)

[[Page 210]]



Sec. 250.143  Member bank purchase of stock of foreign operations
subsidiaries.

    (a) In a previous interpretation, the Board determined that a State 
member bank would not violate the ``stock-purchase prohibition'' of 
section 5136 of the Revised Statutes (12 U.S.C. 24 ] 7) by purchasing 
and holding the shares of a corporation which performs ``at locations at 
which the bank is authorized to engage in business, functions that the 
bank is empowered to perform directly''. \1\ (1968 Federal Reserve 
Bulletin 681, 12 CFR 250.141). The Board of Governors has been asked by 
a State member bank whether, under that interpretation, the bank may 
establish such a so-called operations subsidiary outside the United 
States.
---------------------------------------------------------------------------

    \1\ National banking associations are prohibited by section 5136 of 
the Revised Statutes from purchasing and holding shares of any 
corporation except those corporations whose shares are specifically made 
eligible by statute. This prohibition is made applicable to State member 
banks by section 9 ] 20 of the Federal Reserve Act (12 U.S.C. 335).
---------------------------------------------------------------------------

    (b) In the above interpretation the Board viewed the creation of a 
wholly-owned subsidiary which engaged in activities that the bank itself 
could perform directly as an alternative organizational arrangement that 
would be permissible for member banks unless ``its use would be 
inconsistent with other Federal law, either statutory or judicial''.
    (c) In the Board's judgment, the use by member banks of operations 
subsidiaries outside the United States would be clearly inconsistent 
with the statutory scheme of the Federal Reserve Act governing the 
foreign investments and operations of member banks. It is clear that 
Congress has given member banks the authority to conduct operations and 
make investments outside the United States only through gradually 
adopting a series of specific statutory amendments to the Federal 
Reserve Act, each of which has been carefully drawn to give the Board 
approval, supervisory, and regulatory authority over those operations 
and investments.
    (d) As part of the original Federal Reserve Act, national banks 
were, with the Board's permission, given the power to establish foreign 
branches. \2\ In 1916, Congress amended the Federal Reserve Act to 
permit national banks to invest in international or foreign banking 
corporations known as Agreement Corporations, because such corporations 
were required to enter into an agreement or understanding with the Board 
to restrict their operations. Subject to such limitations or 
restrictions as the Board may prescribe, such Agreement corporations may 
principally engage in international or foreign banking, or banking in a 
dependency or insular possession of the United States, either directly 
or through the agency, ownership or control of local institutions in 
foreign countries, or in such dependencies or insular possessions of the 
United States. In 1919 the enactment of section 25(a) of the Federal 
Reserve Act (the ``Edge Act'') permitted national banks to invest in 
federally chartered international or foreign banking corporations (so-
called Edge Corporations) which may engage in international or foreign 
banking or other international or foreign financial operations, or in 
banking or other financial operations in a dependency or insular 
possession of the United States, either directly or through the 
ownership or control of local institutions in foreign countries, or in 
such dependencies or insular possessions. Edge Corporations may only 
purchase and hold stock in certain foreign subsidiaries with the consent 
of the Board. And in 1966, Congress amended section 25 of the Federal 
Reserve Act to allow national banks to invest directly in the shares of 
a foreign bank. In the Board's judgment,

[[Page 211]]

the above statutory scheme of the Federal Reserve Act evidences a clear 
Congressional intent that member banks may only purchase and hold stock 
in subsidiaries located outside the United States through the prescribed 
statutory provisions of sections 25 and 25(a) of the Federal Reserve 
Act. It is through these statutorily prescribed forms of organization 
that member banks must conduct their operations outside the United 
States.
---------------------------------------------------------------------------

    \2\ Under section 9 of the Federal Reserve Act, State member banks, 
subject, of course, to any necessary approval from their State banking 
authority, may establish foreign branches on the same terms and subject 
to the same limitations and restrictions as are applicable to the 
establishment of branches by national banks (12 U.S.C. 321). State 
member banks may also purchase and hold shares of stock in Edge or 
Agreement Corporations and foreign banks because national banks, as a 
result of specific statutory exceptions to the stock purchase 
prohibitions of section 5136, can purchase and hold stock in these 
Corporations or banks.
---------------------------------------------------------------------------

    (e) To summarize, the Board has concluded that a member bank may 
only organize and operate operations subsidiaries at locations in the 
United States. Investments by member banks in foreign subsidiaries must 
be made either with the Board's permission under section 25 of the 
Federal Reserve Act or, with the Board's consent, through an Edge 
Corporation subsidiary under section 25(a) of the Federal Reserve Act or 
through an Agreement Corporation subsidiary under section 25 of the 
Federal Reserve Act. In addition, it should be noted that bank holding 
companies may acquire the shares of certain foreign subsidiaries with 
the Board's approval under section 4(c)(13) of the Bank Holding Company 
Act. These statutory sections taken together already give member banks a 
great deal of organizational flexibility in conducting their operations 
abroad.

(Interprets and applies 12 U.S.C. 24, 335)

[40 FR 12252, Mar. 18, 1975]



Sec. 250.160  Federal funds transactions.

    (a) It is the position of the Board of Governors of the Federal 
Reserve System that, for purposes of provisions of law administered by 
the Board, a transaction in Federal funds involves a loan on the part of 
the selling bank and a borrowing on the part of the purchasing bank.
    (b) [Reserved]

(12 U.S.C. 371c)

[33 FR 9866, July 10, 1968, as amended at 67 FR 76622, Dec. 12, 2002]



Sec. 250.163  Inapplicability of amount limitations to 
``ineligible acceptances.''

    (a) Since 1923, the Board has been of the view that ``the acceptance 
power of State member banks is not necessarily confined to the 
provisions of section 13 (of the Federal Reserve Act), inasmuch as the 
laws of many States confer broader acceptance powers upon their State 
banks, and certain State member banks may, therefore, legally make 
acceptances of kinds which are not eligible for rediscount, but which 
may be eligible for purchase by Federal reserve banks under section 
14.'' 1923 FR bulletin 316, 317.
    (b) In 1963, the Comptroller of the Currency ruled that ``[n]ational 
banks are not limited in the character of acceptances which they may 
make in financing credit transactions, and bankers' acceptances may be 
used for such purpose, since the making of acceptances is an essential 
part of banking authorized by 12 U.S.C. 24.'' Comptroller's manual 
7.7420. Therefore, national banks are authorized by the Comptroller to 
make acceptances under 12 U.S.C. 24, although the acceptances are not 
the type described in section 13 of the Federal Reserve Act.
    (c) A review of the legislative history surrounding the enactment of 
the acceptance provisions of section 13, reveals that Congress believed 
in 1913, that it was granting to national banks a power which they would 
not otherwise possess and had not previously possessed. See remarks of 
Congressmen Phelan, Helvering, Saunders, and Glass, 51 Cong. Rec. 4676, 
4798, 4885, and 5064 (September 10, 12, 13, and 17 of 1913). 
Nevertheless, the courts have long recognized the evolutionary nature of 
banking and of the scope of the ``incidental powers'' clause of 12 
U.S.C. 24. See Merchants Bank v. State Bank, 77 U.S. 604 (1870) 
(upholding the power of a national bank to certify a check under the 
``incidental powers'' clause of 12 U.S.C. 24).
    (d) It now appears that, based on the Board's 1923 ruling, and the 
Comptroller's 1963 ruling, both State member banks and national banks 
may make acceptances which are not of the type described in section 13 
of the Federal Reserve Act. Yet, this appears to be a development that 
Congress did not contemplate when it drafted the acceptance provisions 
of section 13.
    (e) The question is presented whether the amount limitations of 
section 13 should apply to acceptances made by a

[[Page 212]]

member bank that are not of the type described in section 13. (The 
amount limitations are of two kinds:
    (1) A limitation on the amount that may be accepted for any one 
customer, and
    (2) A limitation on the aggregate amount of acceptances that a 
member bank may make.)


In interpreting any Federal statutory provision, the primary guide is 
the intent of Congress, yet, as noted earlier, Congress did not 
contemplate in 1913, the development of so-called ``ineligible 
acceptances.'' (Although there is some indication that Congress did 
contemplate State member banks' making acceptances of a type not 
described in section 13 [remarks of Congressman Glass, 51 Cong. Rec. 
5064], the primary focus of congressional attention was on the 
acceptance powers of national banks.) In the absence of an indication of 
congressional intent, we are left to reach an interpretation that is in 
harmony with the language of the statutory provisions and with the 
purposes of the Federal Reserve Act.
    (f) Section 13 authorizes acceptances of two types. The seventh 
paragraph of section 13 (12 U.S.C. 372) authorizes certain acceptances 
that arise out of specific transactions in goods. (These acceptances are 
sometimes referred to as ``commercial acceptances.'') The 12th paragraph 
of section 13 authorizes member banks to make acceptances ``for the 
purpose of furnishing dollar exchange as required by the usages of 
trade'' in foreign transactions. (Such acceptances are referred to as 
``dollar exchange acceptances.'') In the 12th paragraph, there is a 10 
percent limit on the amount of dollar exchange acceptances that may be 
accepted for any one customer (unless adequately secured) and a 
limitation on the aggregate amount of dollar exchange acceptances that a 
member bank may make. (The 12th paragraph, in imposing these 
limitations, refers to the acceptance of ``such drafts or bills of 
exchange referred to (in) this paragraph.'') Similarly, the seventh 
paragraph imposes on commercial acceptances a parallel 10 percent per-
customer limitation, and limitations on the aggregate amount of 
commercial acceptances. (In the case of the aggregate limitations, the 
seventh paragraph states that ``no bank shall accept such bills to an 
amount'' in excess of the aggregate limit; the reference to ``such 
bills'' makes clear that the limitation is only in respect of drafts or 
bills of exchange of the specific type described in the seventh 
paragraph.)
    (g) Based on the language and parallel structure of the 7th and 12th 
paragraphs of section 13, and in the absence of a statement of 
congressional intent in the legislative history, the Board concludes 
that the per-customer and aggregate limitations of the 12th paragraph 
apply only to acceptances of the type described in that paragraph 
(dollar exchange acceptances), and the per-customer and aggregate 
limitations of the 7th paragraph (12 U.S.C. 372) apply only to 
acceptances of the type described in that paragraph.

(Interprets and applies 12 U.S.C. 372 and the 12th paragraph of sec. 13 
of the Federal Reserve Act, which paragraph is omitted from the United 
States Code)

[38 FR 13728, May 25, 1973]



Sec. 250.164  Bankers' acceptances.

    (a) Section 207 of the Bank Export Services Act (title II of Pub. L. 
97-290) (``BESA'') raised the limits on the aggregate amount of eligible 
bankers' acceptances (``BAs'') that may be created by an individual 
member bank from 50 per cent (or 100 per cent with the permission of the 
Board) of its paid up and unimpaired capital stock and surplus 
(``capital'') to 150 per cent (or 200 per cent with the permission of 
the Board) of its capital. Section 207 also prohibits a member bank from 
creating eligible BAs for any one person in the aggregate in excess of 
10 per cent of the institution's capital. This section of the BESA 
applies the same limits applicable to member banks to U.S. branches and 
agencies of foreign banks that are subject to reserve requirements under 
section 7 of the International Banking Act of 1978 (12 U.S.C. 3105). The 
Board is clarifying the proper meaning of the seventh paragraph of 
section 13 of the Federal Reserve Act, as amended by the BESA.
    (b)(1) This section of the BESA provides that any portion of an 
eligible BA created by an institution subject to the BA limitations 
contained therein

[[Page 213]]

(``covered bank'') that is conveyed through a participation to another 
covered bank shall not be included in the calculation of the creating 
bank's BA limits. The amount of the participation is to be applied to 
the calculation of the BA limits applicable to the covered bank 
receiving the participation. Although a covered bank that has reached 
its 150 or 200 percent limit can continue to create eligible acceptances 
by conveying participations to other covered banks, Congress has in 
effect imposed an aggregate limit on the eligible acceptances that may 
be created by all covered banks equal to the sum of 150 or 200 percent 
of the capital of all covered banks.
    (2) The Board has clarified that under the statute an eligible BA 
created by a covered bank that is conveyed through a participation to an 
institution that is not subject to the limitations of this section of 
the BESA continues to be included in the calculation of the limits 
applicable to the creating covered bank. This will ensure that the total 
amount of eligible BAs that may be created by covered banks does not 
exceed the limitations established by Congress. In addition, this 
ensures that participations in acceptances are not used as a device for 
the avoidance of reserve requirements. Finally, this promotes the 
Congressional intent, with respect to covered banks, that foreign and 
domestic banks be on an equal footing and under the same legal 
requirements.
    (3) In addition, the amount of a participation received by a covered 
bank from an institution not covered by the limitations of the Act is to 
be included in the calculation of the limits applicable to the covered 
bank receiving the participation. This result is based upon the language 
of the statute which includes within a covered bank's limits on eligible 
BAs outstanding the amount of participations received by the covered 
bank. This provision reflects Congressional intent that a covered bank 
not be obligated on eligible bankers' acceptances, and participations 
therein, for an amount in excess of 150 or 200 percent of the 
institution's capital.
    (c) The statute also provides that eligible acceptances growing out 
of domestic transactions are not to exceed 50 percent of the aggregate 
of all eligible acceptances authorized for covered banks. The Board has 
clarified that this 50 percent limitation is applicable to the maximum 
permissible amount of eligible BAs (150 or 200 percent of capital), 
regardless of the bank's amount of eligible acceptances outstanding. The 
statutory language prior to the BESA amendment made clear that covered 
banks could issue eligible acceptances growing out of domestic 
transactions up to 50 percent of the amount of the total permissible 
eligible acceptances the bank could issue. The legislative history of 
the BESA indicates no intent to change this domestic acceptance 
limitation.
    (d) The statute also provides that for the purpose of the 
limitations applicable to U.S. branches and agencies of foreign banks, a 
branch's or agency's capital is to be calculated as the dollar 
equivalent of the capital stock and surplus of the parent foreign bank 
as determined by the Board. The Board has clarified that for purposes of 
calculating the BA limits applicable to U.S. branches and agencies of 
foreign banks, the identity of the parent foreign bank is generally the 
same as for reserve requirement purposes; that is, the bank entity that 
owns the branch or agency most directly. The Board has also clarified 
that the procedures currently used for purposes of reporting to the 
Board on the Annual Report of Foreign Banking Organizations, Form FR Y-
7, are also to be used in the calculation of the acceptance limits 
applicable to U.S. branches and agencies of foreign banks. (The FR Y-7 
generally requires financial statements prepared in accordance with 
local accounting practices and an explanation of the accounting 
terminology and the major features of the accounting standards used in 
the preparation of the financial statements.) Conversions to the dollar 
equivalent of the worldwide capital of the foreign bank should be made 
periodically, but in no event less frequently than quarterly. In this 
regard, the Board recognizes the need to be flexible in dealing with the 
effect of foreign exchange rate fluctuations on the calculation of the 
worldwide capital of the parent foreign bank. Each

[[Page 214]]

foreign bank is to be responsible for coordinating the BA activity of 
its U.S. branches and agencies (including the aggregation of such 
activity) and establishing procedures that ensure that examiners will be 
able readily to determine compliance with the BESA limits.

(Sec. 13, Federal Reserve Act (12 U.S.C. 372))

[48 FR 28975, June 24, 1983]



Sec. 250.165  Bankers' acceptances: definition of participations.

    (a)(1) Section 207 of the Bank Export Services Act (Title II of Pub. 
L. 97-290) (``BESA'') raised the limits on the aggregate amount of 
eligible bankers' acceptances (``BAs'') that may be created by a member 
bank from 50 percent (or 100 percent with the permission of the Board) 
of its paid up and unimpaired capital stock and surplus (``capital'') to 
150 percent (or 200 percent with the permission of the Board) of its 
capital. Section 207 also prohibits a member bank from creating eligible 
BAs for any one person in the aggregate in excess of 10 percent of the 
institution's capital. Eligible BAs growing out of domestic transactions 
are not to exceed 50 percent of the aggregate of all eligible 
acceptances authorized for a member bank. This section of the BESA 
applies the same limits applicable to member banks to U.S. branches and 
agencies of foreign banks that are subject to reserve requirements under 
section 7 of the International Banking Act of 1978 (12 U.S.C. 3105). \1\
---------------------------------------------------------------------------

    \1\ The institutions subject to the BA limitations of BESA will 
hereinafter be referred to as ``covered banks.''
---------------------------------------------------------------------------

    (2) This section of the BESA also provides that any portion of an 
eligible BA created by a covered bank (``senior bank'') that is conveyed 
through a ``participation agreement'' to another covered bank (``junior 
bank'') shall not be included in the calculation of the senior bank's 
bankers' acceptance limits established by section 207 of BESA. \2\ 
However, the amount of the participation is to be included in the BA 
limits applicable to the junior bank. The language of the statute does 
not define what constitutes a participation agreement for purposes of 
the applicability of the BESA limitations. However, the statute does 
authorize the Board to further define any of the terms used in section 
207 of the BESA (12 U.S.C. 372(g)). The Board is clarifying the term 
participation for purposes of the BA limitations of the BESA.
---------------------------------------------------------------------------

    \2\ The use of the terms senior bank and junior bank has no 
implications regarding priority of claims. These terms merely represent 
a shorthand method of identifying the depository institution that has 
created the acceptance and conveyed the participation (senior bank) and 
the depository institution that has received the participation (junior 
bank).
---------------------------------------------------------------------------

    (b) The legislative history of section 207 of the BESA indicates 
that Congress intended that the junior bank be obligated to the senior 
bank in the event that the account party defaults on its obligation to 
pay, but that the junior bank need not also be obligated to pay the 
holder of the acceptance at the time the BA is presented for payment. H. 
Rep. No. 97-629, 97th Cong., 2nd Sess. 15 (1982); 128 Cong. Rec. H 4647 
(daily ed. July 27, 1982) (remarks by Rep. Barnard): and 128 Cong. Rec. 
H 8462 (daily ed. October 1, 1982) (remarks by Rep. Barnard). The 
legislative history also indicates that Congress intended that eligible 
BAs in which participations had been conveyed not be required to 
indicate the name(s) (or interest(s)) of the junior bank(s) on the 
acceptance in order for the BA to be excluded from the BESA limitations 
applicable to the senior bank. 128 Cong. Rec. S 12237 (daily ed. 
September 24, 1982) (remarks of Senators Heinz and Garn): and 128 Cong. 
Rec. H 4647 (daily ed. July 27, 1982) (remarks of Rep. Barnard).
    (c)(1) In view of Congressional intent with regard to what 
constitutes a participation in an eligible BA, the Board has determined 
that, for purposes of the BESA limits, a participation must satisfy the 
following two minimum requirements:
    (i) A written agreement entered into between the junior and senior 
bank under which the junior bank acquires the senior bank's claim 
against the account party to the extent of the amount of the 
participation that is enforceable in the event that the account

[[Page 215]]

party fails to perform in accordance with the terms of the acceptance; 
and
    (ii) The agreement between the junior and senior bank provides that 
the senior bank obtains a claim against the junior bank to the extent of 
the amount of the participation that is enforceable in the event the 
account party fails to perform in accordance with the terms of the 
acceptance.
    (2) Consistent with Congressional intent, the minimum requirements 
do not require the junior bank to be obligated to pay the holder of the 
acceptance at the time the BA is presented for payment. Similarly, the 
minimum requirements do not require the name(s) or interest(s) of the 
junior bank(s) to appear on the face of the acceptance.
    (3) An eligible BA that is conveyed through a participation that 
does not satisfy these minimum requirements would continue to be 
included in the BA limits applicable to the senior bank. Further, an 
eligible BA conveyed to a covered bank through a participation that 
provided for additional rights and obligations among the parties would 
be excluded from the BESA limitations of the senior bank provided the 
minimum requirements were satisfied.
    (4) A participation structured pursuant to these minimum 
requirements would be as follows: Upon the conveyance of the 
participation, the senior bank retains its entire obligation to pay the 
holder of the BA at maturity. The senior bank has a claim against the 
junior bank to the extent of the amount of the participation that is 
enforceable in the event the account party fails to perform in 
accordance with the terms of the acceptance. Similarly, the junior bank 
has a corresponding claim against the account party to the extent of the 
amount of the participation that is enforceable in the event the account 
party fails to perform in accordance with the terms of the acceptance.
    (d)(1) The Board is not requiring the senior bank and the account 
party specifically to agree that the senior bank's rights are assignable 
because the Board believes such rights to be assignable even in the 
absence of an explicit agreement.
    (2) The junior and senior banks may contract among themselves as to 
which party(ies) have the responsibility for administering the 
arrangement, enforcing claims, or exercising remedies.
    (e) The Board recognizes that both the junior bank's claim on the 
account party and the senior bank's claim on the junior bank involve 
risk. Therefore, it is essential that these risks be assessed by the 
banks involved in accordance with prudent and sound banking practices. 
The examiners will in the normal course of the examination process 
review the risk assessment procedures instituted by the banks. The 
junior bank should review the creditworthiness of each account party 
when the junior bank acquires a participation and the senior bank should 
review on an ongoing basis the creditworthiness of the junior bank. 
Junior bank agreement to rely exclusively upon the credit judgment of 
the senior bank and purchase on an ongoing basis from the senior bank 
all participations in BAs regardless of the identity of the account 
party is not appropriate in view of the risks involved. However, in 
those cases involving a participation between a parent bank and its Edge 
affiliate where the credit review for both entities is performed by the 
parent bank, the Edge Corporation should maintain documentation 
indicating that it concurs with the parent bank's analysis and that the 
acceptance participation is appropriate for inclusion in the Edge 
Corporation's portfolio.
    (f) Similarly, the Board has determined that it is appropriate to 
include the risks incurred by the senior bank in assessing the senior 
bank's capital and the risks incurred by the junior bank in assessing 
the junior bank's capital.
    (g) In view of this clarification of the issues relating to 
participations in BAs, the Board encourages the private sector to 
develop standardized forms for BAs and participations therein that 
clearly delineate the rights and responsibilities of the relevant 
parties.

(Sec. 13, Federal Reserve Act (12 U.S.C. 372))

[48 FR 57109, Dec. 28, 1983]

[[Page 216]]



Sec. 250.166  Treatment of mandatory convertible debt and subordinated
notes of state member banks and bank holding companies as ``capital''.

    (a) General. Under the Board's risk-based capital guidelines, state 
member banks and bank holding companies may include in Tier 2 capital 
subordinated debt and mandatory convertible debt that meets certain 
criteria. The purpose of this interpretation is to clarify these 
criteria. This interpretation should be read with those guidelines, 
particularly with paragraphs II.c. through II.e. of appendix A of 12 CFR 
part 208 if the issuer is a state member bank and with paragraphs 
II.A.2.c. and II.A.2.d. of appendix A of 12 CFR part 225 if the issuer 
is a bank holding company.
    (b) Criteria for subordinated debt included in capital--(1) 
Characteristics. To be included in Tier 2 capital under the Board's 
risk-based capital guidelines for state member banks and bank holding 
companies, subordinated debt must be subordinated in right of payment to 
the claims of the issuer's general creditors \1\ and, for banks, to the 
claims of depositors as well; must be unsecured; must state clearly on 
its face that it is not a deposit and is not insured by a federal 
agency; must have a minimum average maturity of five years; \2\ must not 
contain provisions that permit debtholders to accelerate payment of 
principal prior to maturity except in the event of bankruptcy of or the 
appointment of a receiver for the issuing organization; must not contain 
or be covered by any covenants, terms, or restrictions that are 
inconsistent with safe and sound banking practice; and must not be 
credit sensitive.
---------------------------------------------------------------------------

    \1\ The risk-based capital guidelines for bank holding companies 
state that bank holding company debt must be subordinated to all senior 
indebtedness of the company. To meet this requirement, the debt should 
be subordinated to all general creditors.
    \2\ The ``average maturity'' of an obligation or issue repayable in 
scheduled periodic payments shall be the weighted average of the 
maturities of all such scheduled payments.
---------------------------------------------------------------------------

    (2) Acceleration clauses--(i) In order to be included in Tier 2 
capital, the appendices provide that subordinated debt instruments must 
have an original weighted average maturity of at least five years. For 
this purpose, maturity is defined as the earliest possible date on which 
the holder can put the instrument back to the issuing banking 
organization. Since acceleration clauses permit the holder to put the 
debt back upon the occurrence of certain events, which could happen at 
any time after the instrument is issued, subordinated debt that includes 
provisions permitting acceleration upon events other than bankruptcy or 
reorganization under Chapters 7 (Liquidation) and 11 (Reorganization) of 
the Bankruptcy Code, in the case of a bank holding company, or 
insolvency--i.e., the appointment of a receiver--in the case of a state 
member bank, does not qualify for inclusion in Tier 2 capital.
    (ii) Further, subordinated debt whose terms provide for acceleration 
upon the occurrence of events other than bankruptcy or the appointment 
of a receiver does not qualify as Tier 2 capital. For example, the terms 
of some subordinated debt issues would permit debtholders to accelerate 
repayment if the issuer failed to pay principal or interest on the 
subordinated debt issue when due (or within a certain timeframe after 
the due date), failed to make mandatory sinking fund deposits, defaulted 
on any other debt, failed to honor covenants, or if an institution 
affiliated with the issuer entered into bankruptcy or receivership. Some 
banking organizations have also issued, or proposed to issue, 
subordinated debt that would allow debtholders to accelerate repayment 
if, for example, the banking organization failed to maintain certain 
prescribed minimum capital ratios or rates of return, or if the amount 
of nonperforming assets or charge-offs of the banking organization 
exceeded a certain level.
    (iii) These and other similar acceleration clauses raise significant 
supervisory concerns because repayment of the debt could be accelerated 
at a time when an organization may be experiencing financial 
difficulties. Acceleration of the debt could restrict the ability of the 
organization to resolve its problems in the normal course of business 
and could cause the organization involuntarily to enter into bankruptcy 
or receivership. Furthermore, since

[[Page 217]]

such acceleration clauses could allow the holders of subordinated debt 
to be paid ahead of general creditors or depositors, their inclusion in 
a debt issue throws into question whether the debt is, in fact, 
subordinated.
    (iv) Subordinated debt issues whose terms state that the debtholders 
may accelerate the repayment of principal only in the event of 
bankruptcy or receivership of the issuer do not permit the holders of 
the debt to be paid before general creditors or depositors and do not 
raise supervisory concerns because the acceleration does not occur until 
the institution has failed. Accordingly, debt issues that permit 
acceleration of principal only in the event of bankruptcy (liquidation 
or reorganization) in the case of bank holding companies and 
receivership in the case of banks may generally be classified as 
capital.
    (3) Provisions inconsistent with safe and sound banking practices--
(i) The risk-based capital guidelines state that instruments included in 
capital may not contain or be covered by any covenants, terms, or 
restrictions that are inconsistent with safe and sound banking practice. 
As a general matter, capital instruments should not contain terms that 
could adversely affect liquidity or unduly restrict management's 
flexibility to run the organization, particularly in times of financial 
difficulty, or that could limit the regulator's ability to resolve 
problem bank situations. For example, some subordinated debt includes 
covenants that would not allow the banking organization to make 
additional secured or senior borrowings. Other covenants would prohibit 
a banking organization from disposing of a major subsidiary or 
undergoing a change in control. Such covenants could restrict the 
banking organization's ability to raise funds to meet its liquidity 
needs. In addition, such terms or conditions limit the ability of bank 
supervisors to resolve problem bank situations through a change in 
control.
    (ii) Certain other provisions found in subordinated debt may provide 
protection to investors in subordinated debt without adversely affecting 
the overall benefits of the instrument to the organization. For example, 
some instruments include covenants that may require the banking 
organization to:
    (A) Maintain an office or agency where securities may be presented,
    (B) Hold payments on the securities in trust,
    (C) Preserve the rights and franchises of the company,
    (D) Pay taxes and assessments before they become delinquent,
    (E) Provide an annual statement of compliance on whether the company 
has observed all conditions of the debt agreement, or
    (F) Maintain its properties in good condition. Such covenants, as 
long as they do not unduly restrict the activity of the banking 
organization, generally would be acceptable in qualifying subordinated 
debt, provided that failure to meet them does not give the holders of 
the debt the right to accelerate the debt. \3\
---------------------------------------------------------------------------

    \3\ This notice does not attempt to list or address all clauses 
included in subordinated debt; rather, it is intended to give general 
supervisory guidance regarding the types of clauses that could raise 
supervisory concerns. Issuers of subordinated debt may need to consult 
further with Federal Reserve staff about other subordinated debt 
provisions not specifically discussed above to determine whether such 
provisions are appropriate in a debt capital instrument.
---------------------------------------------------------------------------

    (4) Credit sensitive features. Credit sensitive subordinated debt 
(including mandatory convertible securities) where payments are tied to 
the financial condition of the borrower generally do not qualify for 
inclusion in capital. Interest rate payments may be linked to the 
financial condition of an institution through various ways, such as 
through an auction rate mechanism, a preset schedule that either 
mandates interest rate increases as the credit rating of the institution 
declines or automatically increases them over the passage of time, \4\ 
or that raises the interest rate if payment is not made in a

[[Page 218]]

timely fashion. \5\ As the financial condition of an organization 
declines, it is faced with higher and higher payments on its credit 
sensitive subordinated debt at a time when it most needs to conserve its 
resources. Thus, credit sensitive debt does not provide the support 
expected of a capital instrument to an institution whose financial 
condition is deteriorating; rather, the credit sensitive feature can 
accelerate depletion of the institution's resources and increase the 
likelihood of default on the debt.
---------------------------------------------------------------------------

    \4\ Although payments on debt whose interest rate increases over 
time on the surface may not appear to be directly linked to the 
financial condition of the issuing organization, such debt (sometimes 
referred to as expanding or exploding rate debt) has a strong potential 
to be credit sensitive in substance. Organizations whose financial 
condition has strengthened are more likely to be able to refinance the 
debt at a rate lower than that mandated by the preset increase, whereas 
institutions whose condition has deteriorated are less likely to be able 
to do so. Moreover, just when these latter institutions would be in the 
most need of conserving capital, they would be under strong pressure to 
redeem the debt as an alternative to paying higher rates and, thus, 
would accelerate depletion of their resources.
    \5\ While such terms may be acceptable in perpetual preferred stock 
qualifying as Tier 2 capital, it would be inconsistent with safe and 
sound banking practice to include debt with such terms in Tier 2 
capital. The organization does not have the option, as it does with 
auction rate preferred stock issues, of eliminating the higher payments 
on the subordinated debt without going into default.
---------------------------------------------------------------------------

    (c) Criteria for mandatory convertible debt included in capital. 
Mandatory convertible debt included in capital must meet all the 
criteria cited above for subordinated debt with the exception of the 
minimum maturity requirement. \6\ Since mandatory convertible debt 
eventually converts to an equity instrument, it has no minimum maturity 
requirement. Such debt, however, is subject to a maximum maturity 
requirement of 12 years.
---------------------------------------------------------------------------

    \6\ Mandatory convertible debt is subordinated debt that contains 
provisions committing the issuing organization to repay the principal 
from the proceeds of future equity issues.
---------------------------------------------------------------------------

    (d) Previously issued subordinated debt. Subordinated debt including 
mandatory convertible debt that has been issued prior to the date of 
this interpretation and that contains provisions permitting acceleration 
for reasons other than bankruptcy or receivership of the issuing 
institution; includes other questionable terms or conditions; or that is 
credit sensitive will not automatically be excluded from capital. 
Rather, such debt will be considered on a case-by-case basis to 
determine whether it qualifies as Tier 2 capital. As a general matter, 
subordinated debt issued prior to the release of this interpretation and 
containing such provisions or features may qualify as Tier 2 capital so 
long as these terms:
    (1) have been commonly used by banking organizations,
    (2) do not provide an unreasonably high degree of protection to the 
holder in cases not involving bankruptcy or receivership, and
    (3) do not effectively allow the holder to stand ahead of the 
general creditors of the issuing institution in cases of bankruptcy or 
receivership.
    Subordinated debt containing provisions that permit the holders of 
the debt to accelerate payment of principal when the banking 
organization begins to experience difficulties, for example, when it 
fails to meet certain financial ratios, such as capital ratios or rates 
of return, does not meet these three criteria. Consequently, 
subordinated debt issued prior to the release of this interpretation 
containing such provisions may not be included within Tier 2 capital.
    (e) Limitations on the amount of subordinated debt in capital--(1) 
Basic limitation. The amount of subordinated debt an institution may 
include in Tier 2 capital is limited to 50 percent of the amount of the 
institution's Tier 1 capital. The amount of a subordinated debt issue 
that may be included in Tier 2 capital is discounted as it approaches 
maturity; one-fifth of the original amount of the instrument, less any 
redemptions, is excluded each year from Tier 2 capital during the last 
five years prior to maturity. If the instrument has a serial redemption 
feature such that, for example, half matures in seven years and half 
matures in ten years, the issuing organization should begin discounting 
the seven-year portion after two years and the ten-year portion after 
five years.
    (2) Treatment of debt with dedicated proceeds. If a banking 
organization has issued common or preferred stock and dedicated the 
proceeds to the redemption of a mandatory convertible debt security, 
that portion of the security covered by the amount of the proceeds

[[Page 219]]

so dedicated is considered to be ordinary subordinated debt for capital 
purposes, provided the proceeds are not placed in a sinking fund, trust 
fund, or similar segregated account or are not used in the interim for 
some other purpose. Thus, dedicated portions of mandatory convertible 
debt securities are subject, like other subordinated debt, to the 50 
percent sublimit within Tier 2 capital, as well as to discounting in the 
last five years of life. Undedicated portions of mandatory convertible 
debt may be included in Tier 2 capital without any sublimit and are not 
subject to discounting.
    (3) Treatment of debt with segregated funds. In some cases, the 
provisions in mandatory convertible debt issues may require the issuing 
banking organization to set up a sinking fund, trust fund, or similar 
segregated account to hold the proceeds from the sale of equity 
securities dedicated to pay off the principal of the mandatory 
convertible debt at maturity. The portion of mandatory convertibles 
covered by the amount of proceeds deposited in such a segregated fund is 
considered secured and, thus, may not be included in capital at all, let 
alone be treated as subordinated debt that is subject to the 50 percent 
sublimit within Tier 2 capital. The maintenance of such separate 
segregated funds for the redemption of mandatory convertible debt 
exceeds the requirements of appendix B to Regulation Y. Accordingly, if 
a banking organization, with the agreement of its debtholders, seeks 
Federal Reserve approval to eliminate such a fund, approval normally 
would be given unless supervisory concerns warrant otherwise.
    (f) Redemption of subordinated debt prior to maturity--(1) By state 
member banks. State member banks must obtain approval from the 
appropriate Reserve Bank prior to redeeming before maturity subordinated 
debt or mandatory convertible debt included in capital. \7\ A Reserve 
Bank will not approve such early redemption unless it is satisfied that 
the capital position of the bank will be adequate after the proposed 
redemption.
---------------------------------------------------------------------------

    \7\ Some agreements governing mandatory convertible debt issued 
prior to the risk-based capital guidelines provide that the bank may 
redeem the notes if they no longer count as primary capital as defined 
in appendix B to Regulation Y. Such a provision does not obviate the 
requirement to receive Federal Reserve approval prior to redemption.
---------------------------------------------------------------------------

    (2) By bank holding companies. While bank holding companies are not 
formally required to obtain approval prior to redeeming subordinated 
debt, the risk-based capital guidelines state that bank holding 
companies should consult with the Federal Reserve before redeeming any 
capital instruments prior to stated maturity. This also applies to any 
redemption of mandatory convertible debt with proceeds of an equity 
issuance that were dedicated to the redemption of that debt. 
Accordingly, a bank holding company should consult with its Reserve Bank 
prior to redeeming subordinated debt or dedicated portions of mandatory 
convertible debt included in capital. A Reserve Bank generally will not 
acquiesce to such a redemption unless it is satisfied that the capital 
position of the bank holding company would be adequate after the 
proposed redemption.
    (3) Special concerns involving mandatory convertible debt. 
Consistent with appendix B to Regulation Y, bank holding companies 
wishing to redeem before maturity undedicated portions of mandatory 
convertible debt included in capital are required to receive prior 
Federal Reserve approval, unless the redemption is effected with the 
proceeds from the sale or common or perpetual preferred stock. An 
organization planning to effect such a redemption with the proceeds from 
the sale of common or perpetual preferred stock is advised to consult 
informally with its Reserve Bank in order to avoid the possibility of 
taking an action that could result in weakening its capital position. A 
Reserve Bank will not approve the redemption of mandatory convertible 
securities, or acquiesce in such a redemption effected with the sale of 
common or perpetual preferred stock, unless it is satisfied that the 
capital position of the bank holding company

[[Page 220]]

will be satisfactory after the redemption. \8\
---------------------------------------------------------------------------

    \8\ The guidance contained in this paragraph applies to mandatory 
convertible debt issued prior to the risk-based capital guidelines that 
state that the banking organization may redeem the notes if they no 
longer count as primary capital as defined in appendix B to Regulation 
Y. Such provisions do not obviate the need to consult with, or obtain 
approval from, the Federal Reserve prior to redemption of the debt.

[57 FR 40598, Sept. 4, 1992]



Sec. 250.180  Reports of changes in control of management.

    (a) Under a statute enacted September 12, 1964 (Pub. L. 88-593; 78 
Stat. 940) all insured banks are required to report promptly (1) changes 
in the outstanding voting stock of the bank which will result in control 
or in a change in control of the bank and (2) any instances where the 
bank makes a loan or loans, secured, or to be secured, by 25 percent or 
more of the outstanding voting stock of an insured bank.
    (b) Reports concerning changes in control of a State member bank are 
to be made by the president or other chief executive officer of the 
bank, and shall be submitted to the Federal Reserve Bank of its 
district.
    (c) Reports concerning loans by an insured bank on the stock of a 
State member bank are to be made by the president or other chief 
executive officer of the lending bank, and shall be submitted to the 
Federal Reserve Bank of the State member bank on the stock of which the 
loan was made.
    (d) Paragraphs 3 and 4 of this legislation specify the information 
required in the reports which, in cases involving State member banks, 
should be addressed to the Vice President in Charge of Examinations of 
the appropriate Federal Reserve Bank.

(12 U.S.C. 1817)



Sec. 250.181  Reports of change in control of bank management 
incident to a merger.

    (a) A State member bank has inquired whether Pub. L. 88-593 (78 
Stat. 940) requires reports of change in control of bank management in 
situations where the change occurs as an incident in a merger.
    (b) Under the Bank Merger Act of 1960 (12 U.S.C. 1828(c)), no bank 
with Federal deposit insurance may merge or consolidate with, or acquire 
the assets of, or assume the liability to pay deposits in, any other 
insured bank without prior approval of the appropriate Federal bank 
supervisory agency. Where the bank resulting from any such transaction 
is a State member bank, the Board of Governors is the agency that must 
pass on the transaction. In the course of consideration of such an 
application, the Board would, of necessity, acquire knowledge of any 
change in control of management that might result. Information 
concerning any such change in control of management is supplied with 
each merger application and, in the circumstances, it is the view of the 
Board that the receipt of such information in connection with a merger 
application constitutes compliance with Pub. L. 88-593. However, once a 
merger has been approved and completely effectuated, the resulting bank 
would thereafter be subject to the reporting requirements of Pub. L. 88-
593.

(12 U.S.C. 1817)



Sec. 250.182  Terms defining competitive effects of proposed mergers.

    Under the Bank Merger Act (12 U.S.C. 1828(c)), a Federal Banking 
agency receiving a merger application must request the views of the 
other two banking agencies and the Department of Justice on the 
competitive factors involved. Standard descriptive terms are used by the 
Board, the Federal Deposit Insurance Corporation, and the Comptroller of 
the Currency. The terms and their definitions are as follows:
    (a) The term monopoly means that the proposed transaction must be 
disapproved in accordance with 12 U.S.C. 1828(c)(5)(A).
    (b) The term substantially adverse means that the proposed 
transaction would have anticompetitive effects which preclude approval 
unless the anticompetitive effects are clearly outweighed in the public 
interest by the probable effect of the transaction in meeting the 
convenience and needs of

[[Page 221]]

the community to be served as specified in 12 U.S.C. 1828(c)(5)(B).
    (c) The term adverse means that proposed transaction would have 
anticompetitive effects which would be material to the decision but 
which would not preclude approval.
    (d) The term no significant effect means that the anticompetitive 
effects of the proposed transaction, if any, would not be material to 
the decision.

(12 U.S.C. 1828(c))

[45 FR 45257, July 3, 1980]



Sec. 250.200  Investment in bank premises by holding company banks.

    (a) The Board of Governors has been asked whether, in determining 
under section 24A of the Federal Reserve Act (12 U.S.C. 371d) how much 
may be invested in bank premises without prior Board approval, a State 
member bank, which is owned by a registered bank holding company, is 
required to include indebtedness of a corporation, wholly owned by the 
holding company, that is engaged in holding premises of banks in the 
holding company system.
    (b) Section 24A provides, in part, as follows:

    Hereafter * * * no State member bank, without the approval of the 
Board of Governors of the Federal Reserve System, shall (1) invest in 
bank premises, or in the stock, bonds, debentures, or other such 
obligations of any corporation holding the premises of such bank or (2) 
make loans to or upon the security of the stock of any such corporation, 
if the aggregate of all such investments and loans, together with the 
amount of any indebtedness incurred by any such corporation which is an 
affiliate of the bank, as defined in section 2 of the Banking Act of 
1933, as amended [12 U.S.C. 221a], will exceed the amount of the capital 
stock of such banks.

    (c) A corporation that is owned by a holding company is an 
``affiliate of each of the holding company's majority-owned banks as 
that term is defined in said section 2. Therefore, under the explicit 
provisions of section 24A, each State member bank, any part of whose 
premises is owned by such an affiliate, must include the affiliate's 
total indebtedness in determining whether a proposed premises investment 
by the bank would cause the aggregate figure to exceed the amount of the 
bank's capital stock, so that the Board's prior approval would be 
required. Where the affiliate holds the premises of a number of the 
holding company's banks, the amount of the affiliate's indebtedness may 
be so large that Board approval is required for every proposed 
investment in bank premises by each majority-owned State member bank, to 
which the entire indebtedness of the affiliate is required to be 
attributed. The Board believes that, in these circumstances, individual 
approvals are not essential to effectuate the purpose of section 24A, 
which is to safeguard the soundness and liquidity of member banks, and 
that the protection sought by Congress can be achieved by a suitably 
circumscribed general approval.
    (d) Accordingly the Board hereby grants general approval for any 
investment or loan (as described in section 24A) by any State member 
bank, the majority of the stock of which is owned by a registered bank 
holding company, if the proposed investment or loan will not cause 
either (1) all such investments and loans by the member bank (together 
with the indebtedness of any bank premises subsidiary thereof) to exceed 
100 percent of the bank's capital stock, or (2) the aggregate of such 
investments and loans by all of the holding company's subsidiary banks 
(together with the indebtedness of any bank premises affiliates thereof) 
to exceed 100 percent of the aggregate capital stock of said banks.

(12 U.S.C. 221a, 371d)



Sec. 250.220  Whether member bank acting as trustee is prohibited by
section 20 of the Banking Act of 1933 from acquiring majority of 

shares of mutual fund.

    (a) The Board recently considered whether section 20 of the Banking 
Act of 1933 (12 U.S.C. 377) would prohibit a member bank, while acting 
as trustee of a tax exempt employee benefit trust or trusts, from, under 
the following circumstances, acquiring a majority of the shares of an 
open-end investment company (``Fund'') registered under the Investment 
Company Act of 1940, or more than 50 percent of the number of Fund's 
shares voted at the preceding election of directors of the Fund.

[[Page 222]]

    (b) The bank has acted as trustee, since December 1963, pursuant to 
a trust agreement with a county medical society to administer its group 
retirement program, under which individual members of the society could 
participate in accordance with the provisions of the Self-Employed 
Individuals Tax Retirement Act of 1962 (commonly referred to as ``H.R. 
10'').
    (c) Under the trust agreement as presently constituted, each 
employer, who is a participating member of the medical society, directs 
the bank to invest his contributions to the retirement plan in such 
proportions as he may elect in insurance or annuity contracts or in a 
diversified portfolio of securities and other property. The diversified 
portfolio held by the bank is invested and administered by the bank 
solely at the direction of a committee of the medical society.
    (d) It has now been proposed that the trust agreement be amended to 
provide that all investments constituting the trust fund, apart from 
insurance and annuity contracts, will be made exclusively in shares of a 
single open-end investment company to be named in the trust agreement 
and that the assets constituting the diversified portfolio now held by 
the bank, as trustee, will be exchanged for the Fund's shares. The bank 
will, in addition to holding the shares of the Fund, allocate income and 
dividends to the accounts of the various participants in the retirement 
program, invest and reinvest income and dividends, and perform other 
ministerial functions.
    (e) In addition, it is proposed to amend the trust agreement so that 
voting of the shares held by the bank as trustee will be controlled 
exclusively by the participants. Under the proposed amendment, the bank 
will sign all proxies prior to mailing them to the participants,

    it being intended that the Participant(s) shall vote the proxies 
notwithstanding the fact that the Trustee is the owner of the shares * * 
*.

    (f) The bank believes that amendments are now under consideration 
that will also require investment of the assets of these plans 
exclusively in the Fund's shares. Accordingly, the bank may eventually 
own the Fund's shares in several separate trust accounts and in an 
aggregate amount equal to a majority of the Fund's shares.
    (g) Section 20 of the Banking Act of 1933 provides in relevant part 
that

    no member bank shall be affiliated in any manner described in 
section 2(b) hereof with any corporation * * * engaged principally in 
the issue, flotation, underwriting, public sale, or distribution at 
wholesale or retail or through syndicate participation of stocks * * * 
or other securities: * * *.

    (h) Section 2(b) defines the term affiliate to include

    any corporation, business trust, association or other similar 
organization (1) Of which a member bank, directly or indirectly, owns or 
controls either a majority of the voting shares or more than 50 per 
centum of the number of shares voted for the election of its directors, 
trustees, or other persons exercising similar functions at the preceding 
election, or controls in any manner the election of a majority of its 
directors, trustees, or other persons exercising similar functions; * * 
*.

    (i) The Board has previously taken the position, in an 
interpretation involving the term affiliate under the Banking Act of 
1933, that it would not require a member bank to obtain and publish a 
report of a corporation the majority of the stock of which is held by 
the member bank as executor or trustee, provided that the member bank 
holds such stock subject to control by a court or by a beneficiary or 
other principal and that the member bank may not lawfully exercise 
control of such stock independently of any order or direction of a 
court, beneficiary or other principal. 1933 Federal Reserve Bulletin 
651. The rationale of that interpretation--which was reaffirmed by the 
Board in 1957--would appear to be equally applicable to the facts in the 
present case. In the circumstances, and on the basis of the Board's 
understanding that the bank will not vote any of Fund's shares or 
control in any manner the election of any of its directors, trustees, or 
other persons exercising similar functions, the Board has concluded that 
the situation in question would not fall within the purpose or coverage 
of section 20 of the Banking Act of 1933 and, therefore, would not 
involve a violation of the statute.

[[Page 223]]



Sec. 250.221  Issuance and sale of short-term debt obligations by 
bank holding companies.

    (a) The opinion of the Board of Governors of the Federal Reserve 
System has been requested recently with respect to the proposed sale of 
``thrift notes'' by a bank holding company for the purpose of supplying 
capital to its wholly-owned nonbanking subsidiaries.
    (b) The thrift notes would bear the name of the holding company, 
which in the case presented, was substantially similar to the name of 
its affiliated banks. It was proposed that they be issued in 
denominations of $50 to $100 and initially be of 12-month or less 
maturities. There would be no maximum amount of the issue. Interest 
rates would be variable according to money market conditions but would 
presumably be at rates somewhat above those permitted by Regulation Q 
ceilings. There would be no guarantee or indemnity of the notes by any 
of the banks in the holding company system and, if required to do so, 
the holding company would place on the face of the notes a negative 
representation that the purchase price was not a deposit, nor an 
indirect obligation of banks in the holding company system, nor covered 
by deposit insurance.
    (c) The notes would be generally available for sale to members of 
the public, but only at offices of the holding company and its 
nonbanking subsidiaries. Although offices of the holding company may be 
in the same building or quarters as its banking offices, they would be 
physically separated from the banking offices. Sales would be made only 
by officers or employees of the holding company and its nonbanking 
subsidiaries. Initially, the notes would only be offered in the State in 
which the holding company was principally doing business, thereby 
complying with the exemption provided by section 3(a)(11) of the 
Securities Act of 1933 (15 U.S.C. 77c) for ``intra-state'' offerings. If 
it was decided to offer the notes on an interstate basis, steps would be 
taken to register the notes under the Securities Act of 1933. Funds from 
the sale of the notes would be used only to supply the financial needs 
of the nonbanking subsidiaries of the holding company. These nonbank 
subsidiaries are, at present, a small loan company, a mortgage banking 
company and a factoring company. In no instance would the proceeds from 
the sale of the notes be used in the bank subsidiaries of the holding 
company nor to maintain the availability of funds in its bank 
subsidiaries.
    (d) The sale of the thrift notes, in the specific manner proposed, 
is an activity described in section 20 of the Banking Act of 1933 (12 
U.S.C. 377), that is, ``the issue, flotation, underwriting, public sale 
or distribution * * * of * * * notes, or other securities''. Briefly 
stated, this statute prohibits a member bank to be affiliated with a 
company ``engaged principally'' in such activity. Since the continued 
issuance and sale of such securities would be necessary to permit 
maintenance of the holding company's activities without substantial 
contraction and would be an integral part of its operations, the Board 
concluded that the issuance and sale of such notes would constitute a 
principal activity of a holding company within the spirit and purpose of 
the statute. (For prior Board decisions in this connection, see 1934 
Federal Reserve Bulletin 485, 12 CFR 218.104, 12 CFR 218.105 and 12 CFR 
218.101.)
    (e) In reaching this conclusion, the Board distinguished the 
proposed activity from the sale of short-term notes commonly known as 
commercial paper, which is a recognized form of financing for bank 
holding companies. For purposes of this interpretation, commercial paper 
may be defined as notes, with maturities not exceeding nine months, the 
proceeds of which are to be used for current transactions, which are 
usually sold to sophisticated institutional investors, rather than to 
members of the general public, in minimum denominations of $10,000 
(although sometimes they may be sold in minimum denominations of 
$5,000). Commercial paper is exempt from registration under the 
Securities Act of 1933 by reason of the exemption provided by section 
3(a)(3) thereof (15 U.S.C. 77c). That exemption is inapplicable where 
the securities are sold to the general public (17 CFR 231.4412). The 
reasons for such exemption, taken together with the abuses that gave 
rise to the passage of the Banking Act of 1933 (``the Glass-

[[Page 224]]

Steagall Act''), have led the Board to conclude that the issuance of 
commercial paper by a bank holding company is not an activity intended 
to be included within the scope of section 20.

(Interprets and applies 12 U.S.C. 377 and 1843)

[Reg. Y, 38 FR 35231, Dec. 26, 1973]



Sec. 250.260  Miscellaneous interpretations; gold coin and bullion.

    The Board has received numerous inquiries from member banks relating 
to the repeal of the ban on ownership of gold by United States citizens. 
Listed below are questions and answers which affect member banks and 
relate to the responsibilities of the Federal Reserve System.
    (a) May gold in the form of coins or bullion be counted as vault 
cash in order to satisfy reserve requirements? No. Section 19(c) of the 
Federal Reserve Act requires that reserve balances be satisfied either 
by a balance maintained at the Federal Reserve Bank or by vault cash, 
consisting of United States currency and coin. Gold in bullion form is 
not United States currency. Since the bullion value of United States 
gold coins far exceeds their face value, member banks would not in 
practice distribute them over the counter at face value to satisfy 
customer demands.
    (b) Will the Federal Reserve Banks perform services for member banks 
with respect to gold, such as safekeeping or assaying? No.
    (c) Will a Federal Reserve Bank accept gold as collateral for an 
advance to a member bank under section 10(b) of the Federal Reserve Act? 
No.

[39 FR 45254, Dec. 31, 1974]

         Interpretations of Section 32 of the Glass-Steagall Act



Sec. 250.400  Service of open-end investment company.

    An open-end investment company is defined in section 5(a)(1) of the 
Investment Company Act of 1940 as a company ``which is offering for sale 
or has outstanding any redeemable security of which it is the issuer.'' 
Section 2(a)(31) of said act provides that a redeemable security means 
``any security, other than short-term paper, under the terms of which 
the holder, upon its presentation to the issuer or to a person 
designated by the issuer, is entitled (whether absolutely or only out of 
surplus) to receive approximately his proportionate share of the 
issuer's current net assets, or the cash equivalent thereof.''


It is customary for such companies to have but one class of securities, 
namely, capital stock, and it is apparent that the more or less 
continued process of redemption of the stock issued by such a company 
would restrict and contract its activities if it did not continue to 
issue its stock. Thus, the issuance and sale of its stock is essential 
to the maintenance of the company's size and to the continuance of 
operations without substantial contraction, and therefore the issue and 
sale of its stock constitutes one of the primary activities of such a 
company.


Accordingly, it is the opinion of the Board that if such a company is 
issuing or offering its redeemable stock for sale, it is ``primarily 
engaged in the issue * * * public sale, or distribution, * * * of 
securities'' and that section 32 of the Banking Act of 1933, as amended, 
prohibits an officer, director or employee of any such company from 
serving at the same time as an officer, director or employee of any 
member bank. It is the Board's view that this is true even though the 
shares are sold to the public through independent organizations with the 
result that the investment company does not derive any direct profit 
from the sales.


If, however, the company has ceased to issue or offer any of its stock 
for sale, the company would not be engaged in the issue or distribution 
of its stock, and, therefore, the prohibition contained in section 32 
would be inapplicable unless the company were primarily engaged in the 
underwriting, public sale or distribution of securities other than its 
own stock.

[16 FR 4963, May 26, 1951. Redesignated at 61 FR 57289, Nov. 6, 1996]

[[Page 225]]



Sec. 250.401  Director serving member bank and closed-end investment 
company being organized.

    (a) The Board has previously expressed the opinion (Sec. 218.101) 
that section 32 of the Banking Act of 1933 (12 U.S.C. 78) is applicable 
to a director of a member bank serving as a director of an open-end 
investment company, because the more or less continued process of 
redemption of the stock issued by such company makes the issuance and 
sale of its stock essential to the maintenance of the company's size and 
to the continuance of operations, with the result that the issuance and 
sale of its stock constitutes one of the primary activities of such a 
company. The Board also stated that if the company had ceased to issue 
or offer any of its stock for sale, the company would not be engaged in 
the issuance or distribution of its stock and therefore the prohibitions 
of section 32 would not be applicable. Subsequently, the Board expressed 
the opinion that section 32 would not be applicable in the case of a 
closed-end investment company.
    (b) The Board has recently stated that it believed that a closed-end 
company which was in process of organization and was actively engaged in 
issuing and selling its shares was in the same position relative to 
section 32 as an open-end company, and that the section would be 
applicable while this activity continued.

[25 FR 3464, Apr. 21, 1960. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.402  Service as officer, director, or employee of licensee 
corporation under the Small Business Investment Act of 1958.

    (a) The Board of Governors has been requested to express an opinion 
whether Sec. 218.1 would prohibit an officer, director, or employee of 
a member bank from serving at the same time as an officer, director, or 
employee of a Licensee corporation under the Small Business Investment 
Act of 1958 (15 U.S.C. 661 et seq.). It is understood that a Licensee 
would be authorized to engage only in the activities set forth in the 
statute, namely, to provide capital and long-term loan funds to small 
business concerns.
    (b) In the opinion of the Board, a corporation engaged exclusively 
in the enumerated activities would not be ``primarily engaged in the 
issue, flotation, underwriting, public sale, or distribution, at 
wholesale or retail, or through syndicate participation, of stocks, 
bonds, or other similar securities.'' Accordingly, the prohibition of 
Sec. 218.1 would not apply to serving as an officer, director, or 
employee of either a small business investment company organized under 
the Small Business Investment Act of 1958, or an investment company 
chartered under the laws of a State solely for the purpose of operating 
under the Small Business Investment Act of 1958.

[25 FR 4427, May 19, 1960. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.403  Service of member bank and real estate investment company.

    (a) The Board recently considered two inquiries regarding the 
question whether proposed real estate investment companies would be 
subject to the provisions of sections 20 and 32 of the Banking Act of 
1933 (12 U.S.C. 377 and 78). These sections relate to affiliations 
between member banks and companies engaged principally in the issue, 
flotation, underwriting, public sale or distribution of stocks, bonds, 
or similar securities, and interlocking directorates between member 
banks and companies primarily so engaged. In both instances the 
companies, after their organization, would engage only in the business 
of financing real estate development or investing in real estate 
interests, and not in the type of business described in the statute. 
However, each of the companies, in the process of its organization, 
would issue its own stock. In one instance, it appeared that the stock 
would be issued over a period of from 30 to 60 days; in the other 
instance it was stated that the stock would be sold by a firm of 
underwriters and that distribution was expected to be completed in not 
more than a few days.
    (b) On the basis of the facts stated, the Board concluded that the 
companies involved would not be subject to sections 20 and 32 of the 
Banking Act of 1933, since they would not be principally or primarily 
engaged in the

[[Page 226]]

business of issuing or distributing securities but would only be issuing 
their own stock for a period ordinarily required for corporate 
organization. The Board stated, however, that if either of the companies 
should subsequently issue additional shares frequently and in 
substantial amounts relative to the size of the company's capital 
structure, it would be necessary for the Board to reconsider the matter.
    (c) Apart from the legal question, the Board noted that an 
arrangement of the kind proposed could involve some dangers to an 
affiliated bank because the relationship might tend to impair the 
independent judgment that should be exercised by the bank in appraising 
its credits and might cause the company to be so identified in the minds 
of the public with the bank that any financial reverses suffered by the 
company might affect the confidence of the public in the bank.
    (d) Because of the foregoing conclusion that the companies would not 
be subject to sections 20 and 32, it seems advisable to clarify Sec. 
218.102, in which the Board took the position that a closed-end 
investment company which was in process of organization and was actively 
engaged in issuing and selling its shares was subject to section 32 as 
long as this activity continued. That interpretation should be regarded 
as applicable only where the circumstances are such as to indicate that 
the issuance of the company's stock is a primary or principal activity 
of the company. For example, such circumstances might exist where the 
initial stock of a company is actively issued over a period of time 
longer than that ordinarily required for corporate organization, or 
where, subsequent to organization, the company issues its own stock 
frequently and in substantial amounts relative to the total amount of 
shares outstanding.

[26 FR 868, Jan. 28, 1961. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.404  Serving as director of member bank and corporation
selling own stock.

    (a) The Board recently considered the question whether section 32 of 
the Banking Act of 1933 (12 U.S.C. 78) would be applicable to the 
service of a director of a corporation which planned to acquire or 
organize, as proceeds from the sale of stock became available, 
subsidiaries to operate in a wide variety of fields, including 
manufacturing, foreign trade, leasing of heavy equipment, and real 
estate development. The corporation had a paid-in capital of about 
$60,000 and planned to sell additional shares at a price totaling $10 
million, with the proviso that if less than $3 million worth were sold 
by March 1962, the funds subscribed would be refunded. It thus appeared 
to be contemplated that the sale of stock would take at least a year, 
and there appeared to be no reason for believing that, if the venture 
proved successful, additional shares would not be offered so that the 
corporation could continue to expand.
    (b) The Board concluded that section 32 would be applicable, stating 
that although Sec. 218.102, as clarified by Sec. 218.104, related to 
closed-end investment companies, the rationale of that interpretation is 
applicable to corporations generally.

[26 FR 2456, Mar. 23, 1961. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.405  No exception granted a special or limited partner.

    (a) The Board has been asked on several occasions whether section 32 
of the Banking Act of 1933 (12 U.S.C. 78) is applicable to a director, 
officer, or employee of a member bank who is a special or limited 
partner in a firm primarily engaged in the business described in that 
section.
    (b) Since the Board cannot issue an individual permit, it can exempt 
a limited or special partner only by amending part 218 (Regulation R). 
After the statute was amended in 1935 so as to make it applicable to a 
partner, the Board carefully considered the desirability of making such 
an exception. On several subsequent occasions it has reconsidered the 
question. In each instance the Board has decided that in view of a 
limited partner's interest in the underwriting and distributing 
business, it should not make the exception.

[27 FR 7954, Aug. 10, 1962. Redesignated at 61 FR 57289, Nov. 6, 1996]

[[Page 227]]



Sec. 250.406  Serving member bank and investment advisor with mutual
fund affiliation.

    (a) The opinion of the Board of Governors of the Federal Reserve 
System has been requested with respect to service as vice president of a 
corporation engaged in supplying investment advice and management 
services to mutual funds and others (``Manager'') and as director of a 
member bank.
    (b) Section 32 of the Banking Act of 1933 (12 U.S.C. 78), forbids 
any officer, director, or employee of any corporation ``primarily 
engaged in the issue, flotation, underwriting, public sale, or 
distribution, at wholesale or retail, or through syndicate 
participation, of stocks, bonds, or other similar securities * * *'' to 
serve at the same time as an officer, director, or employee of a member 
bank.
    (c) Manager has for several years served a number of different open-
end or mutual funds, as well as individuals, institutions, and other 
clients, as an investment advisor and manager. However, it appears that 
Manager has a close relationship with two of the mutual funds which it 
serves. A wholly owned subsidiary of Manager (``Distributors''), serves 
as distributor for the two mutual funds and has no other function. In 
addition, the chairman and treasurer of Manager, as well as the 
president, assistant treasurer, and a director of Manager, are officers 
and directors of Distributors and trustees of both funds. It appears 
also that a director of Manager is president and director of 
Distributors, while the clerk of Manager is also clerk of Distributors. 
Manager, Distributors and both funds are listed at the same address in 
the local telephone directory.
    (d) While the greater part of the total annual income of Manager 
during the past five years has derived from ``individuals, institutions, 
and other clients'', it appears that a substantial portion has been 
attributable to the involvement with the two funds in question. During 
each of the last four years, that portion has exceeded a third of the 
total income of Manager, and in 1962 it reached nearly 40 percent.
    (e) The Board has consistently held that an open-end or mutual fund 
is engaged in the activities described in section 32, so long as it is 
issuing its securities for sale, since it is apparent that the more or 
less continued process of redemption of the stock issued by such a 
company would restrict and contract its activities if it did not 
continue to issue the stock. Clearly, a corporation that is engaged in 
underwriting or selling open-end shares, is so engaged.
    (f) In connection with incorporated manager-advisors to open-end or 
mutual funds, the Board has expressed the view in a number of cases that 
where the corporation served a number of different clients, and the 
corporate structure was not interlocked with that of mutual fund and 
underwriter in such a way that it could be regarded as being controlled 
by or substantially one with them, it should not be held to be 
``primarily engaged'' in section 32 activities. On the other hand, where 
a manager-advisor was created for the sole purpose of serving a 
particular fund, and its activities were limited to that function, the 
Board has regarded the group as a single entity for purposes of section 
32.
    (g) In the present case, the selling organization is a wholly-owned 
subsidiary of the advisor-manager, hence subject to the parent's 
control. Stock of the subsidiary will be voted according to decisions by 
the parent's board of directors, and presumably will be voted for a 
board of directors of the subsidiary which is responsive to policy lines 
laid down by the parent. Financial interests of the parent are obviously 
best served by an aggressive selling policy, and, in fact, both the 
share and the absolute amount of the parent's income provided by the two 
funds have shown a steady increase over recent years. The fact that 
dividends from Distributors have represented a relatively small 
proportion of the income of Manager, and that there were, indeed, no 
dividends in 1961 or 1962, does not support a contrary argument, in view 
of the steady increase in total income of Manager from the funds and 
Distributors taken as a whole.
    (h) In view of all these facts, the Board has concluded that the 
separate corporate entities of Manager and Distributors should be 
disregarded and Distributors viewed as essentially a

[[Page 228]]

selling arm of Manager. As a result of this conclusion, section 32 would 
forbid interlocking service as an officer of Manager and a director of a 
member bank.

[28 FR 13437, Dec. 12, 1963. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.407  Interlocking relationship involving securities affiliate 
of brokerage firm.

    (a) The Board of Governors was asked recently whether section 32 of 
the Banking Act of 1933 (``section 32''), 12 U.S.C. 78, prohibits the 
interlocking service of X as a director of a member bank of the Federal 
Reserve System and as a partner in a New York City brokerage firm 
(``Partnership'') having a corporation affiliate (``Corporation'') 
engaged in business of the kinds described in section 32 (``section 32 
business'').
    (b) Section 32, subject to an exception not applicable here, 
provides that

    No officer, director, or employee of any corporation or 
unincorporated association, no partner or employee of any partnership, 
and no individual, primarily engaged in the issue, flotation, 
underwriting, public sale, or distribution, at wholesale or retail, or 
through syndicate participation, of stocks, bonds, or other similar 
securities, shall serve the same time as an officer, director, or 
employee of any member bank * * *.

    (c) From the information submitted it appears that Partnership, a 
member firm of the New York Stock Exchange, is the successor of two 
prior partnerships, in one of which X had been a partner. This prior 
partnership had been found not to be ``primarily engaged'' in section 32 
business. The other prior partnership, however, had been so engaged. By 
arrangement between the two prior firms, Corporation was formed chiefly 
for the purpose of carrying on the section 32 business of the prior firm 
that had been ``primarily engaged'' in that business, which business was 
transferred to Corporation. The two prior firms were then merged and the 
stock of Corporation was acquired by all the partners of Partnership, 
other than X, in proportion to the respective partnership interests of 
the stockholding partners. The information submitted indicated also that 
two of the three directors and ``some'' of the principal officers of 
Corporation are partners in Partnership, although X is not a director or 
officer of Corporation.
    (d) It is understood that the practice of forming corporate 
affiliates of brokerage firms, in order that the affiliate may carry on 
the securities business (such as section 32 business) with limited 
liability and other advantages, has become rather widespread in recent 
years. Accordingly, other cases may arise where a partner in such a firm 
may desire to serve at the same time as director of a member bank.
    (e) On the basis of the information presented the Board concluded 
that X in his capacity as an ``individual'', was not engaged in section 
32 business. However, as that information showed Corporation to be 
``primarily engaged'' in section 32 business, the Board stated that a 
finding that Partnership and Corporation were one entity for the 
purposes of the statute would mean that X would be forbidden to serve 
both the member bank and Partnership, if the one entity were so engaged.
    (f) Paragraph .15 of Rule 321 of the New York Stock Exchange 
governing the formation and conduct of affiliated companies of member 
organizations states that:

    Since Rule 314 provides that each member and allied member in a 
member organization must have a fixed interest in its entire business, 
it follows that the fixed interest of each member and allied member must 
extend to the member organization's corporate affiliate. When any of the 
corporate affiliate's participating stock is owned by the members and 
allied members in the member organization, such holdings must at all 
times be distributed among such members and allied members in 
approximately the same proportions as their respective interests in the 
profits of the member organization. When a member or allied member's 
interest in the member organization is changed, a corresponding change 
must be made in his participating interest in the affiliate.

    (g) Although it was understood that X had received special 
permission from the Exchange not to own any of the stock of Corporation, 
it appeared to the Board that Rule 321.15 would apply to the remaining 
partners. Moreover, other paragraphs of the rule forbid transfers of the 
stock, except under

[[Page 229]]

certain circumstances to limited classes of persons, such as employees 
of the organization or estates of decedent partners, without permission 
of the Exchange.
    (h) The information supplied to the Board clearly indicated that 
Corporation was formed in order to provide Partnership with an 
``underwriting arm''. Under Rule 321 of the Exchange, the partners 
(other than X) are required to own stock in Corporation because of their 
partnership interest, would be required to surrender that stock on 
leaving the partnership, and incoming partners would be required to 
acquire such stock. Furthermore, Rule 321 speaks of a corporate 
affiliate, such as Corporation, as a part of the ``entire business'' of 
a member organization.
    (i) On the basis of the foregoing, the Board concluded that 
Partnership and Corporation must be regarded as a single entity or 
enterprise for purposes of section 32.
    (j) The remaining question was whether the enterprise, as a whole, 
should be regarded as ``primarily engaged'' in section 32 business. The 
Information presented stated that the total dollar volume of section 32 
business of Corporation during the first eleven months of its operation 
was $89 million. The gross income from section 32 business was less than 
half a million, and represented about 7.9 percent of the income of 
Partnership. The Board was advised that the relatively low amount of 
income from section 32 business of Corporation as due to special costs, 
and to the condition of the market for municipal and State bonds during 
the past year, a field in which Corporation specializes. Corporation is 
listed in a standard directory of securities dealers, and holds itself 
out as having separate departments to deal with the principal 
underwriting areas in which it functions.
    (k) In view of the above information, the Board concluded that the 
enterprise consisting of Partnership and Corporation was ``primarily 
engaged'' in section 32 business. Accordingly, the Board stated that the 
partners in Partnership, including X, were forbidden by that section and 
by this part 218 (Reg. R), issued pursuant to the statute, to serve as 
officers, directors, or employees of any member banks.

[29 FR 5315, Apr. 18, 1964. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.408  Short-term negotiable notes of banks not securities 
under section 32, Banking Act of 1933.

    (a) The Board of Governors has been asked whether short-term 
unsecured negotiable notes of the kinds issued by some of the large 
banks in this country as a means of obtaining funds are ``other similar 
securities'' within the meaning of section 32, Banking Act of 1933 (12 
U.S.C. 78) and this part.
    (b) Section 32 forbids certain interlocking relationships between 
banks which are members of the Federal Reserve System and individuals or 
organizations ``primarily engaged in the issue, flotation, underwriting, 
public sale, or distribution, at wholesale or retail, or through 
syndicate participation, of stocks, bonds, or other similar securities * 
* *.'' Therefore, if such notes are securities similar to stocks or 
bonds, any dealing therein would be an activity covered in section 32 
and would have to be taken into consideration in determining whether the 
individual or organization involved was ``primarily engaged'' in such 
activities.
    (c) The Board has concluded that such short-term notes of the kind 
described above are not ``other similar securities'' within the meaning 
of section 32 and this part.

[29 FR 16065, Dec. 2, 1964. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.409  Investment for own account affects applicability of section 32.

    (a) The Board of Governors has been presented with the question 
whether a certain firm is primarily engaged in the activities described 
in section 32 of the Banking Act of 1933. If the firm is so engaged, 
then the prohibitions of section 32 forbids a limited partner to serve 
as employee of a member bank.
    (b) The firm describes the bulk of its business, producing roughly 
60 percent of its income, as ``investing for its own account.'' However, 
it has a seat on the local stock exchange, and acts as specialist and 
odd-lot dealer on the floor of the exchange, an activity responsible for 
some 30 percent of its volume

[[Page 230]]

and profits. The firm's ``off-post trading,'' apart from the investment 
account, gives rise to about 5 percent of its total volume and 10 
percent of its profits. Gross volume has risen from $4 to $10 million 
over the past 3 years, but underwriting has accounted for no more than 
one-half of 1 percent of that amount.
    (c) Section 32 provides that

    No officer, director, or employee of any corporation or 
unincorporated association, no partner, or employee of any partnership, 
and no individual, primarily engaged in the issue, flotation, 
underwriting, public sale, or distribution, at wholesale, or retail, or 
through syndicate participation, of stocks, bonds, or other similar 
securities, shall serve the same time (sic) as an officer, director, or 
employee of any member bank * * *

    (d) In interpreting this language, the Board has consistently held 
that underwriting, acting as a dealer, or generally speaking, selling, 
or distributing securities as a principal, is covered by the section, 
while acting as broker or agent is not.
    (e) In one type of situation, however, although a firm was engaged 
in selling securities as principal, on its own behalf, the Board held 
that section 32 did not apply. In these cases, the firm alleged that it 
bought and sold securities purely for investment purposes. Typically, 
those cases involved personal holding companies or small family 
investment companies. Securities had been purchased only for members of 
a restricted family group, and had been held for relatively long periods 
of time.
    (f) The question now before the Board is whether a similar exception 
can apply in the case of the investment account of a professional 
dealer. In order to answer this question, it is necessary to analyze, in 
the light of applicable principles under the statute, the three main 
types of activity in which the firm has been engaged, (1) acting as 
specialist and odd-lot dealer, (2) off-post trading as an ordinary 
dealer, and (3) investing for its own account.
    (g) On several occasions, the Board has held that, to the extent the 
trading of a specialist or odd-lot dealer is limited to that required 
for him to perform his function on the floor of the exchange, he is 
acting essentially in an agency capacity. In a letter of September 13, 
1934, the Board held that the business of a specialist was not of the 
kind described in the (unamended) section on the understanding that

    * * * in acting as specialists on the New York Curb Exchange, it is 
necessary for the firm to buy and sell odd lots and * * * in order to 
protect its position after such transactions have been made, the firm 
sells or buys shares in lots of 100 or multiples thereof in order to 
reduce its position in the stock in question to the smallest amount 
possible by this method. It appears therefore that, in connection with 
these transactions, the firm is neither trading in the stock in question 
or taking a position in it except to the extent made necessary by the 
fact that it deals in odd lots and cannot complete the transactions by 
purchases and sales on the floor of the exchange except to the nearest 
100 share amount.

    (h) While subsequent amendments to section 32 to some extent changed 
the definition of the kinds of securities business that would be covered 
by the section, the amendments were designed so far as is relevant to 
the present question, to embody existing interpretations of the Board. 
Accordingly, to the extent that the firm's business is described by the 
above letter of the Board, it should not be considered to be of a kind 
described in section 32.
    (i) Turning to the firm's off-post trading, the Board is inclined to 
agree with the view that this is sufficient to make the case a 
borderline one under the statute. In the circumstances, the Board might 
prefer to postpone making a determination until figures for 1965 could 
be reviewed, particularly in the light of the recent increase in total 
volume, if it were not for the third category, the firm's own investment 
account.
    (j) While this question has not been squarely presented to it in the 
past, the Board is of the opinion that when a firm is doing any 
significant amount of business as a dealer or underwriter, then 
investments for the firm's own account should be taken into 
consideration in determining whether the firm is ``primarily engaged'' 
in the activities described in section 32. The division into dealing for 
one's own account, and dealing with customers, is a highly subjective 
one, and although a particular firm or individual may be quite 
scrupulous in separating the two,

[[Page 231]]

the opportunity necessarily exists for the kind of abuse at which the 
statute is directed. The Act is designed to prevent situations from 
arising in which a bank director, officer, or employee could influence 
the bank or its customers to invest in securities in which his firm has 
an interest, regardless of whether he, as an individual, is likely to do 
so. In the present case, when these activities are added to the firm's 
``off-post trading'', the firm clearly falls within the statutory 
definition.
    (k) For the reasons just discussed, the Board concludes that the 
firm must be considered to be primarily engaged in activities described 
in section 32, and that the prohibitions of the section forbid a limited 
partner in that firm to serve as employee of a member bank.

(12 U.S.C. 248(i))

[30 FR 7743, June 16, 1965. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.410  Interlocking relationships between bank and its
commingled investment account.

    (a) The Board of Governors was asked recently whether the 
establishment of a proposed ``Commingled Investment Account'' 
(``Account'') by a national bank would involve a violation of section 32 
of the Banking Act of 1933 in view of the interlocking relationships 
that would exist between the bank and Account.
    (b) From the information submitted, it was understood that Account 
would comprise a commingled fund, to be operated under the effective 
control of the bank, for the collective investment of sums of money that 
might otherwise be handled individually by the bank as managing agent. 
It was understood further that the Comptroller of the Currency had taken 
the position that Account would be an eligible operation for a national 
bank under his Regulation 9, ``Fiduciary Powers of National Banks and 
Collective Investment Funds'' (part 9 of this title). The bank had 
advised the Board that the Securities and Exchange Commission was of the 
view that Account would be a ``registered investment company'' within 
the meaning of the Investment Company Act of 1940, and that 
participating interests in Account would be ``securities'' subject to 
the registration requirements of the Securities Act of 1933.
    (c) The information submitted showed also that the minimum 
individual participation that would be permitted in Account would be 
$10,000, while the maximum acceptable individual investment would be 
half a million dollars; that there would be no ``load'' or payment by 
customers for the privilege of investing in Account; and that:

    The availability of the Commingled Account would not be given 
publicity by the Bank except in connection with the promotion of its 
fiduciary services in general and the Bank would not advertise or 
publicize the Commingled Account as such. Participations in the 
Commingled Account are to be made available only on the premises of the 
Bank (including its branches), or to persons who are already customers 
of the Bank in other connections, or in response to unsolicited 
requests.

    (d) Such information indicated further that participations would be 
received by the bank as agent, under a broad authorization signed by the 
customer, substantially equivalent to the power of attorney under which 
customers currently deposit their funds for individual investment, and 
that the participations would not be received ``in trust.''
    (e) The Board understood that Account would be required to comply 
with certain requirements of the Federal securities laws not applicable 
to an ordinary common trust fund operated by a bank. In particular, 
supervision of Account would be in the hands of a committee to be 
initially appointed by the bank, but subsequently elected by 
participants having a majority of the units of participation in Account. 
At least one member of the committee would be entirely independent of 
the bank, but the remaining members would be officers in the trust 
department of the bank.
    (f) The committee would make a management agreement with the bank 
under which the bank would be responsible for managing Account's 
investments, have custody of its assets, and maintain its books and 
records. The management agreement would be renewed annually if approved 
by the committee, including a ``majority'' of the independent members, 
or by a vote

[[Page 232]]

of participants having a majority of the units of participation. The 
agreement would be terminable on 60 days' notice by the committee, by 
such a majority of the participants, or by the bank, and would terminate 
automatically if assigned by the bank.
    (g) It was understood also that the bank would receive as annual 
compensation for its services one-half of one percent of Account's 
average net assets. Account would also pay for its own independent 
professional services, including legal, auditing, and accounting 
services, as well as the cost of maintaining its registration and 
qualification under the Federal securities laws.
    (h) Initially, the assets of Account would be divided into units of 
participation of an arbitrary value, and each customer would be credited 
with a number of units proportionate to his investment. Subsequently, 
the assets of Account would be valued at regular intervals, and divided 
by the number of units outstanding. New investors would receive units at 
their current value, determined in this way, according to the amount 
invested. Each customer would receive a receipt evidencing the number of 
units to which he was entitled. The receipts themselves would be 
nontransferable, but it would be possible for a customer to arrange with 
Account for the transfer of his units to someone else. A customer could 
terminate his participation at any time and withdraw the current value 
of his units.
    (i) Section 32 of the Banking Act of 1933 provides in relevant part 
that:

    No officer, director, or employee of any corporation or 
unincorporated association, no partner or employee of any partnership, 
and no individual, primarily engaged in the issue, flotation, 
underwriting, public sale, or distribution, at wholesale or retail, or 
through syndicate participation, of stocks, bonds, or other similar 
securities, shall serve [at] the same time as an officer, director, or 
employee of any member bank * * *.

    (j) The Board concluded, based on its understanding of the proposal 
and on the general principles that have been developed in respect to the 
application of section 32, that the bank and Account would constitute a 
single entity for the purposes of section 32, at least so long as the 
operation of Account conformed to the representations made by the bank 
and outlined herein. Accordingly, the Board said that section 32 would 
not forbid officers of the bank to serve on Account's committee, since 
Account would be regarded as nothing more than an arm or department of 
the bank.
    (k) In conclusion, the Board called attention to section 21 of the 
Banking Act of 1933 which, briefly, forbids a securities firm or 
organization to engage in the business of receiving deposits, subject to 
certain exceptions. However, since section 21 is a criminal statute, the 
Board has followed the policy of not expressing views as to its meaning. 
(1934 Federal Reserve Bulletin 41, 543.) The Board, therefore, expressed 
no position with respect to whether the section might be held applicable 
to the establishment and operation of the proposed ``Commingled 
Investment Account.''

(12 U.S.C. 248(i))

[30 FR 12836, Oct. 8, 1965. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.411  Interlocking relationships between member bank and variable
annuity insurance company.

    (a) The Board has recently been asked to consider whether section 32 
of the Banking Act of 1933 (12 U.S.C. 78) and this part prohibit 
interlocking service between member banks and (1) the board of managers 
of an accumulation fund, registered under the Investment Company Act of 
1940 (15 U.S.C. 80), that sells variable annuities and (2) the board of 
directors of the insurance company, of which the accumulation fund is a 
``separate account,'' but as to which the insurance company is the 
sponsor, investment advisor, underwriter, and distributor. Briefly, a 
variable annuity is one providing for annuity payment varying in 
accordance with the changing values of a portfolio of securities.
    (b) Section 32 provides in relevant part that:

    No officer, director, or employee of any corporation or 
unincorporated association, no partner or employee of any partnership, 
and no individual, primarily engaged in the issue, flotation, 
underwriting, public sale, or distribution, at wholesale or retail, or

[[Page 233]]

through syndicate participation, of stocks, bonds, or other similar 
securities, shall serve [at] the same time as an officer, director, or 
employee of any member bank * * *.

    (c) For many years, the Board's position has been that an open-end 
investment company (or mutual fund) is ``primarily engaged in the issue 
* * * public sale, or distribution * * * of securities'' since the 
issuance and sale of its stock is essential to the maintenance of the 
company's size and to the continuance of its operations without 
substantial contraction, and that section 32 of the Banking Act of 1933 
prohibits an officer, director, or employee of any such company from 
serving at the same time as an officer, director, or employee of any 
member bank. (1951 Federal Reserve Bulletin 645; Sec. 218.101.)
    (d) For reasons similar to those stated by the U.S. Supreme Court in 
Securities and Exchange Commission v. Variable Annuity Life Insurance 
Company of America, 359 U.S. 65 (1959), the Board concluded that there 
is no meaningful basis for distinguishing a variable annuity interest 
from a mutual fund share for section 32 purposes and that, therefore, 
variable annuity interests should also be regarded as ``other similar 
securities'' within the prohibition of the statute and regulation.
    (e) The Board concluded also that, since the accumulation fund, like 
a mutual fund, must continually issue and sell its investment units in 
order to avoid the inevitable contraction of its activities as it makes 
annuity payments or redeems variable annuity units, the accumulation 
fund is ``primarily engaged'' for section 32 purposes. The Board further 
concluded that the insurance company was likewise ``primarily engaged'' 
for the purposes of the statute since it had no significant revenue 
producing operations other than as underwriter and distributor of the 
accumulation fund's units and investment advisor to the fund.
    (f) Although it was clear, therefore, that section 32 prohibits any 
officers, directors, and employees of member banks from serving in any 
such capacity with the insurance company or accumulation fund, the Board 
also considered whether members of the board of managers of the 
accumulation fund are ``officers, directors, or employees'' within such 
prohibition. The functions of the board of managers, who are elected by 
the variable annuity contract owners, are, with the approval of the 
variable annuity contract owners, to select annually an independent 
public accountant, execute annually an agreement providing for 
investment advisory services, and recommend any changes in the 
fundamental investment policy of the accumulation fund. In addition, the 
Board of managers has sole authority to execute an agreement providing 
for sales and administrative services and to authorize all investments 
of the assets of the accumulation fund in accordance with its 
fundamental investment policy. In the opinion of the Board of Governors, 
the board of managers of the accumulation fund performs functions 
essentially the same as those performed by classes of persons as to whom 
the prohibition of section 32 was specifically directed and, 
accordingly, are within the prohibitions of the statute.

(12 U.S.C. 248(i))

[33 FR 12886, Sept. 12, 1968. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.412  Interlocking relationships between member bank and 
insurance company-mutual fund complex.

    (a) The Board has been asked whether section 32 of the Banking Act 
of 1933 and this part prohibited interlocking service between member 
banks and (1) the advisory board of a newly organized open-end 
investment company (mutual fund), (2) the fund's incorporated investment 
manager-advisor, (3) the insurance company sponsoring and apparently 
controlling the fund.
    (b) X Fund, Inc. (``Fund''), the mutual fund, was closely related to 
X Life Insurance Company (``Insurance Company''), as well as to the 
incorporated manager and investment advisor to Fund (``Advisors''), and 
the corporation serving as underwriter for Fund (``Underwriters''). The 
same persons served as principal officers and directors of Insurance 
Company, Fund, Advisors, and Underwriters. In addition, several 
directors of member banks served as directors of Insurance Company and 
of

[[Page 234]]

Advisors and as members of the Advisory Board of Fund, and additional 
directors of member banks had been named only as members of the Advisory 
Board. All outstanding shares of Advisors and of Underwriters were 
apparently owned by Insurance Company.
    (c) Section 32 provides in relevant part that:

    No officer, director, or employee of any corporation * * * primarily 
engaged in the issue, flotation, underwriting, public sale, or 
distribution at wholesale or retail, or through syndicate participation, 
of stocks, bonds, or other similar securities, shall serve [at] the same 
time as an officer, director, or employee of any member bank * * *.

    (d) The Board of Governors reaffirmed its earlier position that an 
open-end investment company is ``primarily engaged'' in activities 
described in section 32 ``even though the shares are sold to the public 
through independent organizations with the result that the investment 
company does not derive any direct profit from the sales.'' (1951 
Federal Reserve Bulletin 654, Sec. 218.101.) Accordingly, the Board 
concluded that Fund must be regarded as so engaged, even though its 
shares were underwritten and distributed by Underwriters.
    (e) As directors of the member banks involved in the inquiry were 
not officers, directors, or employees of either Fund or Underwriters, 
the relevant questions were whether--(1) Advisors, and (2) Insurance 
Company, should be regarded as being functionally and structurally so 
closely allied with Fund that they should be treated as one with it in 
determining the applicability of section 32. An additional question was 
whether members of the Advisory Board are ``officers, directors, or 
employees'' of Fund within the prohibition of the statute.
    (f) Interlocking service with Advisory Board: The function of the 
Advisory Board was merely to make suggestions and to counsel with Fund's 
Board of Directors in regard to investment policy. The Advisory Board 
had no authority to make binding recommendations in any area, and it did 
not serve in any sense as a check on the authority of the Board of 
Directors. Indeed, the Fund's bylaws provided that the Advisory Board 
``shall have no power or authority to make any contract or incur any 
liability whatever or to take any action binding upon the Corporation, 
the Officers, the Board of Directors or the Stockholders.'' Members of 
the Advisory Board were appointed by the Board of Directors of Fund, 
which could remove any member of the Advisory Board at any time. None of 
the principal officers of Fund or of Underwriters were members of the 
Advisory Board; and the compensation of its members was expected to be 
nominal.
    (g) The Board of Governors concluded that members of the Advisory 
Board need not be regarded as ``officers, directors, or employees'' of 
Fund or of Underwriters for purposes of section 32, and that the 
statute, therefore, did not prohibit officers, directors, or employees 
of member banks from serving as members of the Advisory Board.
    (h) Interlocking service with Advisors: The principal officers and 
several of the directors of Advisors were identical with both those of 
Fund and of Underwriters. Entire management and investment 
responsibility for Fund had been placed, by contract, with Advisors, 
subject only to a review authority in the Board of Directors of Fund. 
Advisors also supplied office space for the conduct of Fund's affairs, 
and compensated members of the Advisory Board who are also officers or 
directors of Advisors. Moreover, it appeared that Advisors was created 
for the sole purpose of servicing Fund, and its activities were to be 
limited to that function.
    (i) In the view of the Board of Governors, the structural and 
functional identity of Fund and Advisors was such that they were to be 
regarded as a single entity for purposes of section 32, and, 
accordingly, officers, directors, and employees of member banks were 
prohibited by section 32 from serving in any such capacity with such 
entity.
    (j) Interlocking service with Insurance Company: It was clear that 
Insurance Company was not as yet ``primarily engaged'' in business of a 
kind described in section 32 with respect to the shares of the newly 
created Fund sponsored by Insurance Company, since the issue and sale of 
such shares had not yet commenced. Nor did it appear that Insurance 
Company would be so

[[Page 235]]

engaged in the preliminary stages of Fund's existence, when the 
disproportion between the insurance business of Insurance Company and 
the sale of Fund shares would be very great. However, it was also clear 
that if Fund was successfully launched, its activities would rather 
quickly reach a stage where a serious question would arise as to the 
applicability of the section 32 prohibition.
    (k) An estimate supplied to the Board indicated that 100,000 shares 
of Fund might be sold annually to produce, based on then current values, 
annual gross sales receipts of over $1 million. Insurance Company's 
total gross income for its last fiscal year was almost $10 million. On 
this basis, about one-tenth of the annual gross income of the Insurance 
Company-Fund complex (more than one-tenth, if income from investments of 
Insurance Company was eliminated) would be derived from sales of Fund 
shares. Although total sales of shares of Fund during the first year 
might not approximate expectations, it was assumed that if the estimate 
or projection was correct, the annual rate of sale might well rise to 
that level before the end of the first year of operation.
    (l) It appeared that net income of Insurance Company from Fund's 
operations would be minimal for the foreseeable future. However, it was 
understood that Insurance Company's chief reason for launching Fund was 
to provide salesmen for Insurance Company (who were to be the only 
sellers of shares of Fund, and most of whom, Insurance Company hoped, 
would qualify to sell those shares), with a ``package'' of mutual fund 
shares and life insurance policies that would provide increased 
competitive strength in a highly competitive field.
    (m) The Board concluded that Insurance Company would be ``primarily 
engaged'' in issuing or distributing shares of Fund within the meaning 
of section 32 by not later than the time of realization of the 
aforementioned estimated annual rate of sale, and possibly before. As 
indicated in Board of Governors v. Agnew, 329 U.S. 441 at 446, the 
prohibition of the statute applies if the section 32 business involved 
is a ``substantial'' activity of the company.
    (n) This, the Board observed, was not to suggest that officers, 
directors, or employees of Insurance Company who are also directors of 
member banks would be likely, as individuals, to use their positions 
with the banks to further sales of Fund's shares. However, as the 
Supreme Court pointed out in the Agnew case, section 32 is a 
``preventive or prophylactic measure.'' The fact that the individuals 
involved ``have been scrupulous in their relationships'' to the banks in 
question ``is immaterial.''

(12 U.S.C. 248(i))

[33 FR 13001, Sept. 14, 1968. Redesignated at 61 FR 57289, Nov. 6, 1996]



Sec. 250.413  ``Bank-eligible'' securities activities.

    Section 32 of the Glass-Steagall Act (12 U.S.C. 78) prohibits any 
officer, director, or employee of any corporation or unincorporated 
association, any partner or employee of any partnership, and any 
individual, primarily engaged in the issue, flotation, underwriting, 
public sale, or distribution, at wholesale or retail, or through 
syndicate participation, of stocks, bonds, or other similar securities, 
from serving at the same time as an officer, director, or employee of 
any member bank of the Federal Reserve System. The Board is of the 
opinion that to the extent that a company, other entity or person is 
engaged in securities activities that are expressly authorized for a 
state member bank under section 16 of the Glass-Steagall Act (12 U.S.C. 
24(7), 335), the company, other entity or individual is not engaged in 
the types of activities described in section 32. In addition, a 
securities broker who is engaged solely in executing orders for the 
purchase and sale of securities on behalf of others in the open market 
is not engaged in the business referred to in section 32.

[Reg. R, 61 FR 57289, Nov. 6, 1996]



PART 261_RULES REGARDING AVAILABILITY OF INFORMATION--
Table of Contents



                      Subpart A_General Provisions

Sec.
261.1 Authority, purpose, and scope.

[[Page 236]]

261.2 Definitions.
261.3 Custodian of records; certification; service; alternative 
          authority.

    Subpart B_Published Information and Records Available to Public; 
                         Procedures for Requests

261.10 Published information.
261.11 Records available for public inspection and copying.
261.12 Records available to public upon request.
261.13 Processing requests.
261.14 Exemptions from disclosure.
261.15 Request for confidential treatment.
261.16 Request for access to confidential commercial or financial 
          information.
261.17 Fee schedules; waiver of fees.

    Subpart C_Confidential Information Made Available to Supervised 
     Institutions, Financial Institution Supervisory Agencies, Law 
        Enforcement Agencies, and Others in Certain Circumstances

261.20 Confidential supervisory information made available to supervised 
          financial institutions and financial institution supervisory 
          agencies.
261.21 Confidential information made available to law enforcement 
          agencies and other nonfinancial institution supervisory 
          agencies.
261.22 Other disclosure of confidential supervisory information.
261.23 Subpoenas, orders compelling production and other process.

    Authority: 5 U.S.C. 552; 12 U.S.C. 248(i) and (k), 321 et seq., 611 
et seq., 1442, 1467a, 1817(a)(2)(A), 1817(a)(8), 1818(u) and (v), 
1821(o), 1821(t), 1830, 1844, 1951 et seq., 2601, 2801 et seq., 2901 et 
seq., 3101 et seq., 3401 et seq.; 15 U.S.C. 77uuu(b), 78q(c)(3); 29 
U.S.C. 1204; 31 U.S.C. 5301 et seq.; 42 U.S.C. 3601; 44 U.S.C. 3510.

    Source: 53 FR 20815, June 7, 1988, unless otherwise noted.



                      Subpart A_General Provisions

    Source: 62 FR 54359, Oct. 20, 1997, unless otherwise noted.



Sec. 261.1  Authority, purpose, and scope.

    (a) Authority. (1) This part is issued by the Board of Governors of 
the Federal Reserve System (the Board) pursuant to the Freedom of 
Information Act, 5 U.S.C. 552; Sections 9, 11, and 25A of the Federal 
Reserve Act, 12 U.S.C. 248(i) and (k), 321 et seq., (including 326), 611 
et seq.; Section 22 of the Federal Home Loan Bank Act, 12 U.S.C 1442; 
section 10 of the Home Owners' Loan Act, 12 U.S.C. 1467a; the Federal 
Deposit Insurance Act, 12 U.S.C. 1817(a)(2)(A), 1817(a)(8), 1818(u) and 
(v), 1821(o); section 5 of the Bank Holding Company Act, 12 U.S.C. 1844; 
the Bank Secrecy Act, 12 U.S.C. 1951 et seq., and Chapter 53 of Title 
31; the Home Mortgage Disclosure Act, 12 U.S.C. 2801 et seq.; the 
Community Reinvestment Act, 12 U.S.C. 2901 et seq.; the International 
Banking Act, 12 U.S.C. 3101 et seq.; the Right to Financial Privacy Act, 
12 U.S.C. 3401 et seq.; the Securities and Exchange Commission 
Authorization Act, 15 U.S.C. 77uuu(b), 78q(c)(3); the Employee 
Retirement Income Security Act, 29 U.S.C. 1204; the Money Laundering 
Suppression Act, 31 U.S.C. 5301, the Fair Housing Act, 42 U.S.C. 3601; 
the Paperwork Reduction Act, 44 U.S.C. 3510; and any other applicable 
law that establishes a basis for the exercise of governmental authority 
by the Board.
    (2) This part establishes mechanisms for carrying out the Board's 
statutory responsibilities under statutes in paragraph (a)(1) of this 
section to the extent those responsibilities require the disclosure, 
production, or withholding of information. In this regard, the Board has 
determined that the Board, or its delegees, may disclose exempt 
information of the Board, in accordance with the procedures set forth in 
this part, whenever it is necessary or appropriate to do so in the 
exercise of any of the Board's supervisory or regulatory authorities, 
including but not limited to, authority granted to the Board in the 
Federal Reserve Act, 12 U.S.C. 221 et seq., the Bank Holding Company 
Act, 12 U.S.C. 1841 et seq., the Home Owners' Loan Act, 12 U.S.C. 1461 
et seq., and the International Banking Act, 12 U.S.C. 3101 et seq. The 
Board has determined that all such disclosures, made in accordance with 
the rules and procedures specified in this part, are authorized by law.
    (3) The Board has also determined that it is authorized by law to 
disclose information to a law enforcement or other federal or state 
government agency that has the authority to request and receive such 
information in

[[Page 237]]

carrying out its own statutory responsibilities, or in response to a 
valid order of a court of competent jurisdiction or of a duly 
constituted administrative tribunal.
    (b) Purpose. This part sets forth the categories of information made 
available to the public, the procedures for obtaining documents and 
records, the procedures for limited release of exempt and confidential 
supervisory information, and the procedures for protecting confidential 
business information.
    (c) Scope. (1) This subpart A contains general provisions and 
definitions of terms used in this part.
    (2) Subpart B of this part implements the Freedom of Information Act 
(FOIA) (5 U.S.C. 552).
    (3) Subpart C of this part sets forth:
    (i) The kinds of exempt information made available to supervised 
institutions, supervisory agencies, law enforcement agencies, and others 
in certain circumstances;
    (ii) The procedures for disclosure; and
    (iii) The procedures with respect to subpoenas, orders compelling 
production, and other process.

[62 FR 54359, Oct. 20, 1997; 62 FR 62508, Nov. 24, 1997, as amended at 
76 FR 56600, Sept. 13, 2011]



Sec. 261.2  Definitions.

    For purposes of this part:
    (a) Board's official files means the Board's central records.
    (b) Commercial use request refers to a request from or on behalf of 
one who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person on 
whose behalf the request is made.
    (c)(1) Confidential supervisory information means:
    (i) Exempt information consisting of reports of examination, 
inspection and visitation, confidential operating and condition reports, 
and any information derived from, related to, or contained in such 
reports;
    (ii) Information gathered by the Board in the course of any 
investigation, suspicious activity report, cease-and-desist orders, 
civil money penalty enforcement orders, suspension, removal or 
prohibition orders, or other orders or actions under the Financial 
Institutions Supervisory Act of 1966, Public Law 89-695, 80 Stat. 1028 
(codified as amended in scattered sections of 12 U.S.C.), the Bank 
Holding Company Act of 1956, 12 U.S.C. 1841 et seq., the Home Owners' 
Loan Act, 12 U.S.C. 1461 et seq., the Federal Reserve Act, 12 U.S.C. 221 
et seq., the International Banking Act of 1978, Public Law 95-369, 92 
Stat. 607 (codified as amended in scattered sections of 12 U.S.C.), and 
the International Lending Supervision Act of 1983, 12 U.S.C. 3901 et 
seq.; except--
    (A) Such final orders, amendments, or modifications of final orders, 
or other actions or documents that are specifically required to be 
published or made available to the public pursuant to 12 U.S.C. 1818(u), 
or other applicable law, including the record of litigated proceedings; 
and
    (B) The public section of Community Reinvestment Act examination 
reports, pursuant to 12 U.S.C. 2906(b); and
    (iii) Any documents prepared by, on behalf of, or for the use of the 
Board, a Federal Reserve Bank, a federal or state financial institutions 
supervisory agency, or a bank or bank holding company or other 
supervised financial institution.
    (2) Confidential supervisory information does not include documents 
prepared by a supervised financial institution for its own business 
purposes and that are in its possession.
    (d) Direct costs mean those expenditures that the Board actually 
incurs in searching for, reviewing, and duplicating documents in 
response to a request made under Sec. 261.12.
    (e) Duplication refers to the process of making a copy of a document 
in response to a request for disclosure of records or for inspection of 
original records that contain exempt material or that otherwise cannot 
be inspected directly. Among others, such copies may take the form of 
paper, microform, audiovisual materials, or machine-readable 
documentation (e.g., magnetic tape or disk).
    (f) Educational institution refers to a preschool, a public or 
private elementary or secondary school, or an institution of 
undergraduate higher education, graduate higher education, professional 
education, or an institution

[[Page 238]]

of vocational education, which operates a program of scholarly research.
    (g) Exempt information means information that is exempt from 
disclosure under Sec. 261.14.
    (h) Noncommercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis (as that term is used in 
this section) and that is operated solely for the purpose of conducting 
scientific research, the results of which are not intended to promote 
any particular product or industry.
    (i)(1) Records of the Board include:
    (i) In written form, or in nonwritten or machine-readable form; all 
information coming into the possession and under the control of the 
Board, any Board member, any Federal Reserve Bank, or any officer, 
employee, or agent of the Board or of any Federal Reserve Bank, in the 
performance of functions for or on behalf of the Board that constitute 
part of the Board's official files; or
    (ii) That are maintained for administrative reasons in the regular 
course of business in official files in any division or office of the 
Board or any Federal Reserve Bank in connection with the transaction of 
any official business.
    (2) Records of the Board does not include personal files of Board 
members and employees; tangible exhibits, formulas, designs, or other 
items of valuable intellectual property; extra copies of documents and 
library and museum materials kept solely for reference or exhibition 
purposes; unaltered publications otherwise available to the public in 
Board publications, libraries, or established distribution systems.
    (j) Report of examination means the report prepared by the Board, or 
other federal or state financial institution supervisory agency, 
concerning the examination of a financial institution, and includes 
reports of inspection and reports of examination of U.S. branches or 
agencies of foreign banks and representative offices of foreign 
organizations, and other institutions examined by the Federal Reserve 
System.
    (k) Report of inspection means a report prepared by the Board 
concerning its inspection of a bank holding company and its bank and 
nonbank subsidiaries or other supervised financial institution.
    (l) Representative of the news media refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public.
    (1) The term ``news'' means information that is about current events 
or that would be of current interest to the public.
    (2) Examples of news media entities include, but are not limited to, 
television or radio stations broadcasting to the public at large, and 
publishers of periodicals (but only in those instances when they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public.
    (3) ``Freelance'' journalists may be regarded as working for a news 
organization if they can demonstrate a solid basis for expecting 
publication through that organization, even though they are not actually 
employed by it.
    (m)(1) Review refers to the process of examining documents, located 
in response to a request for access, to determine whether any portion of 
a document is exempt information. It includes doing all that is 
necessary to excise the documents and otherwise to prepare them for 
release.
    (2) Review does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (n)(1) Search means a reasonable search, by manual or automated 
means, of the Board's official files and any other files containing 
Board records as seem reasonably likely in the particular circumstances 
to contain information of the kind requested. For purposes of computing 
fees under Sec. 261.17, search time includes all time spent looking for 
material that is responsive to a request, including line-by-line 
identification of material within documents. Such activity is distinct 
from ``review'' of material to determine whether the material is exempt 
from disclosure.
    (2) Search does not mean or include research, creation of any 
document, or extensive modification of an existing program or system 
that would significantly interfere with the operation of

[[Page 239]]

the Board's automated information systems.
    (o) Supervised financial institution includes a bank, bank holding 
company (including subsidiaries), savings and loan holding company 
(including non-depository subsidiaries), U.S. branch or agency of a 
foreign bank, or any other institution that is supervised by the Board.

[62 FR 54359, Oct. 20, 1997, as amended at 76 FR 56601, Sept. 13, 2011]



Sec. 261.3  Custodian of records; certification; service; 
alternative authority.

    (a) Custodian of records. The Secretary of the Board (Secretary) is 
the official custodian of all Board records, including records that are 
in the possession or control of the Board, any Federal Reserve Bank, or 
any Board or Reserve Bank employee.
    (b) Certification of record. The Secretary may certify the 
authenticity of any Board record, or any copy of such record, for any 
purpose, and for or before any duly constituted federal or state court, 
tribunal, or agency.
    (c) Service of subpoenas or other process. Subpoenas or other 
judicial or administrative process, demanding access to any Board 
records or making any claim against the Board, shall be addressed to and 
served upon the Secretary of the Board at the Board's office at 20th and 
C Streets, N.W., Washington, D.C. 20551. Neither the Board nor the 
Secretary are agents for service of process on behalf of any employee in 
respect of purely private legal disputes, except as specifically 
provided by law.
    (d) Alternative authority. Any action or determination required or 
permitted by this part to be done by the Secretary, the General Counsel, 
or the Director of any Division may be done by any employee who has been 
duly designated for this purpose by the Secretary, General Counsel, or 
the appropriate Director.



    Subpart B_Published Information and Records Available to Public; 
                         Procedures for Requests

    Source: 62 FR 54359, 54361, Oct. 20, 1997, unless otherwise noted.



Sec. 261.10  Published information.

    (a) Federal Register. The Board publishes in the Federal Register 
for the guidance of the public:
    (1) Descriptions of the Board's central and field organization;
    (2) Statements of the general course and method by which the Board's 
functions are channeled and determined, including the nature and 
requirements of procedures;
    (3) Rules of procedure, descriptions of forms available and the 
place where they may be obtained, and instructions on the scope and 
contents of all papers, reports, and examinations;
    (4) Substantive rules, interpretations of general applicability, and 
statements of general policy;
    (5) Every amendment, revision, or repeal of the foregoing in 
paragraphs (a)(1) through (a)(4) of this section;
    (6) Notices of proposed rulemaking;
    (7) Notices of applications received under the Bank Holding Company 
Act of 1956 (12 U.S.C. 1841 et seq.), the Home Owners' Loan Act (12 
U.S.C. 1461 et seq.), and the Change in Bank Control Act (12 U.S.C. 
1817);
    (8) Notices of all Board meetings, pursuant to the Government in the 
Sunshine Act (5 U.S.C. 552b);
    (9) Notices identifying the Board's systems of records, pursuant to 
the Privacy Act of 1974 (5 U.S.C. 552a); and
    (10) Notices of agency data collection forms being reviewed under 
the Paperwork Reduction Act (5 U.S.C. 3501 et seq.).
    (b) Board's Reports to Congress. The Board's annual report to 
Congress pursuant to the Federal Reserve Act (12 U.S.C. 247), which is 
made public upon its submission to Congress, contains a full account of 
the Board's operations during the year, the policy actions by the 
Federal Open Market Committee, an economic review of the year, and 
legislative recommendations to Congress. The Board also makes periodic

[[Page 240]]

reports to Congress under certain statutes, including but not limited to 
the Freedom of Information Act (5 U.S.C. 552); the Government in the 
Sunshine Act (5 U.S.C. 552b); the Full Employment and Balanced Growth 
Act of 1978 (12 U.S.C. 225a); and the Privacy Act (5 U.S.C. 552a).
    (c) Federal Reserve Bulletin. This publication is issued monthly and 
contains economic and statistical information, articles relating to the 
economy or Board activities, and descriptions of recent actions by the 
Board.
    (d) Other published information. Among other things, the Board 
publishes the following information:
    (1) Weekly publications. The Board issues the following publications 
weekly:
    (i) A statement showing the condition of each Federal Reserve Bank 
and a consolidated statement of the condition of all Federal Reserve 
Banks, pursuant to 12 U.S.C. 248(a);
    (ii) An index of applications received and the actions taken on the 
applications, as well as other matters issued, adopted, or promulgated 
by the Board; and
    (iii) A statement showing changes in the structure of the banking 
industry resulting from mergers and the establishment of branches.
    (2) Press releases. The Board frequently issues statements to the 
press and public regarding monetary and credit actions, regulatory 
actions, actions taken on certain types of applications, and other 
matters.
    (3) Call Report and other data. Certain data from Reports of 
Condition and Income submitted to the Board are available through the 
National Technical Information Service and may be obtained by the 
procedure described in Sec. 261.11(c)(2).
    (4) Federal Reserve Regulatory Service. This is a multivolume 
looseleaf service published by the Board, containing statutes, 
regulations, interpretations, rulings, staff opinions, and procedural 
rules under which the Board operates. Portions of the service are also 
published as separate looseleaf handbooks relating to consumer and 
community affairs, monetary policy and reserve requirements, payments 
systems, and securities credit transactions. The service and each 
handbook contain subject and citation indexes, are updated monthly, and 
may be subscribed to on a yearly basis.
    (e) Index to Board actions. The Board's Freedom of Information 
Office maintains an index to Board actions, which is updated weekly and 
provides identifying information about any matters issued, adopted, and 
promulgated by the Board since July 4, 1967. Copies of the index may be 
obtained upon request to the Freedom of Information Office subject to 
the current schedule of fees in Sec. 261.17.
    (f) Obtaining Board publications. The Publications Services Section 
maintains a list of Board publications that are available to the public. 
In addition, a partial list of publications is published in the Federal 
Reserve Bulletin. All publications issued by the Board, including 
available back issues, may be obtained from Publications Services, Board 
of Governors of the Federal Reserve System, 20th Street and Constitution 
Avenue, N.W., Washington, D.C. 20551 (pedestrian entrance is on C 
Street, N.W.). Subscription or other charges may apply to some 
publications.

[62 FR 54359, 54361, Oct. 20, 1997, as amended at 76 FR 56601, Sept. 13, 
2011]



Sec. 261.11  Records available for public inspection and copying.

    (a) Types of records made available. Unless they were published 
promptly and made available for sale or without charge, the following 
records shall be made available for inspection and copying at the 
Freedom of Information Office:
    (1) Final opinions, including concurring and dissenting opinions, as 
well as final orders and written agreements, made in the adjudication of 
cases;
    (2) Statements of policy and interpretations adopted by the Board 
that are not published in the Federal Register;
    (3) Administrative staff manuals and instructions to staff that 
affect the public;
    (4) Copies of all records released to any person under Sec. 261.12 
that, because of the nature of their subject matter, the Board has 
determined are likely to be requested again;

[[Page 241]]

    (5) A general index of the records referred to in paragraph (a)(4) 
of this section; and
    (6) The public section of Community Reinvestment Act examination 
reports.
    (b) Reading room procedures. (1) Information available under this 
section is available for inspection and copying, from 9:00 a.m. to 5:00 
p.m. weekdays, at the Freedom of Information Office of the Board of 
Governors of the Federal Reserve System, 20th Street and Constitution 
Avenue, N.W., Washington, D.C. 20551 (the pedestrian entrance is on C 
Street, N.W.).
    (2) The Board may determine that certain classes of publicly 
available filings shall be made available for inspection and copying 
only at the Federal Reserve Bank where those records are filed.
    (c) Electronic records. (1) Except as set forth in paragraph (c)(2) 
of this section, information available under this section that was 
created by the Board on or after November 1, 1996, shall also be 
available on the Board's internet site (which can be found at http://
www.bog.frb.fed.us).
    (2) NTIS. The publicly available portions of Reports of Condition 
and Income of individual banks and certain other data files produced by 
the Board are distributed by the National Technical Information Service. 
Requests for these public reports should be addressed to: Sales Office, 
National Technical Information Service, U.S. Department of Commerce, 
5285 Port Royal Road, Springfield, Virginia 22161, (703) 487-4650.
    (3) Privacy protection. The Board may delete identifying details 
from any record to prevent a clearly unwarranted invasion of personal 
privacy.



Sec. 261.12  Records available to public upon request.

    (a) Types of records made available. All records of the Board that 
are not available under Sec. Sec. 261.10 and 261.11 shall be made 
available upon request, pursuant to the procedures and exceptions in 
this Subpart B.
    (b) Procedures for requesting records. (1) A request for 
identifiable records shall reasonably describe the records in a way that 
enables the Board's staff to identify and produce the records with 
reasonable effort and without unduly burdening or significantly 
interfering with any of the Board's operations.
    (2) The request shall be submitted in writing to the Freedom of 
Information Office, Board of Governors of the Federal Reserve System, 
20th & C Street, N.W., Washington, D.C. 20551; or sent by facsimile to 
the Freedom of Information Office, (202) 872-7562 or 7565. The request 
shall be clearly marked FREEDOM OF INFORMATION ACT REQUEST.
    (3) A request may not be combined with any other request to the 
Board except for a request under 12 CFR 261a.3(a) (Rules Regarding 
Access to and Review of Personal Information under the Privacy Act of 
1974) and a request made under Sec. 261.22(b).
    (c) Contents of request. The request shall contain the following 
information:
    (1) The name and address of the requester, and the telephone number 
at which the requester can be reached during normal business hours;
    (2) Whether the requested information is intended for commercial 
use, and whether the requester is an educational or noncommercial 
scientific institution, or news media representative;
    (3) A statement agreeing to pay the applicable fees, or a statement 
identifying any desired fee limitation, or a request for a waiver or 
reduction of fees that satisfies Sec. 261.17(f); and
    (4) If the request is being made in connection with on-going 
litigation, a statement indicating whether the requester will seek 
discretionary release of exempt information from the General Counsel 
upon denial of the request by the Secretary. A requester who intends to 
make such a request to the General Counsel may also address the factors 
set forth in Sec. 261.22(b).
    (d) Defective requests. The Board need not accept or process a 
request that does not reasonably describe the records requested or that 
does not otherwise comply with the requirements of this section. The 
Board may return a defective request, specifying the deficiency. The 
requester may submit a corrected request, which will be treated as a new 
request.

[[Page 242]]

    (e) Oral requests. The Freedom of Information Office may honor an 
oral request for records, but if the requester is dissatisfied with the 
Board's response and wishes to seek review, the requester must submit a 
written request, which shall be treated as an initial request.

[62 FR 54362, Oct. 20, 1997; 62 FR 62508, Nov. 24, 1997]



Sec. 261.13  Processing requests.

    (a) Receipt of requests. Upon receipt of any request that satisfies 
Sec. 261.12(b), the Freedom of Information Office shall assign the 
request to the appropriate processing schedule, pursuant to paragraph 
(b) of this section. The date of receipt for any request, including one 
that is addressed incorrectly or that is referred to the Board by 
another agency or by a Federal Reserve Bank, is the date the Freedom of 
Information Office actually receives the request.
    (b) Multitrack processing. (1) The Board provides different levels 
of processing for categories of requests under this section. Requests 
for records that are readily identifiable by the Freedom of Information 
Office and that have already been cleared for public release may qualify 
for fast-track processing. All other requests shall be handled under 
normal processing procedures, unless expedited processing has been 
granted pursuant to paragraph (c)(2) of this section.
    (2) The Freedom of Information Office will make the determination 
whether a request qualifies for fast-track processing. A requester may 
contact the Freedom of Information Office to learn whether a particular 
request has been assigned to fast-track processing. If the request has 
not qualified for fast-track processing, the requester will be given an 
opportunity to limit the request in order to qualify for fast-track 
processing. Limitations of requests must be in writing.
    (c) Expedited processing. When a person requesting expedited access 
to records has demonstrated a compelling need for the records, or when 
the Board has determined to expedite the response, the Board shall 
process the request as soon as practicable.
    (1) To demonstrate a compelling need for expedited processing, the 
requester shall provide a certified statement, a sample of which may be 
obtained from the Freedom of Information Office. The statement, which 
must be certified to be true and correct to the best of the requester's 
knowledge and belief, shall demonstrate that:
    (i) The failure to obtain the records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) The requester is a representative of the news media, as defined 
in Sec. 261.2, and there is urgency to inform the public concerning 
actual or alleged Board activity.
    (2) In response to a request for expedited processing, the Secretary 
shall notify a requester of the determination within ten calendar days 
of receipt of the request. If the Secretary denies a request for 
expedited processing, the requester may file an appeal pursuant to the 
procedures set forth in paragraph (i) of this section, and the Board 
shall respond to the appeal within ten working days after the appeal was 
received by the Board.
    (d) Priority of responses. The Secretary will assign responsible 
staff to process particular requests. The Freedom of Information Office 
will normally process requests in the order they are received in the 
separate processing tracks, except when expedited processing is granted. 
However, in the Secretary's discretion, or upon a court order in a 
matter to which the Board is a party, a particular request may be 
processed out of turn.
    (e) Time limits. The time for response to requests shall be 20 
working days, except:
    (1) In the case of expedited treatment under paragraph (c) of this 
section;
    (2) Where the running of such time is suspended for payment of fees 
pursuant to Sec. 261.17(b)(2);
    (3) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B). 
In such circumstances, the time limit may be extended for a period of 
time not to exceed:
    (i) 10 working days as provided by written notice to the requester, 
setting forth the reasons for the extension and

[[Page 243]]

the date on which a determination is expected to be dispatched; or
    (ii) Such alternative time period as mutually agreed to by the 
Freedom of Information Office and the requester when the Freedom of 
Information Office notifies the requester that the request cannot be 
processed in the specified time limit.
    (f) Response to request. In response to a request that satisfies 
Sec. 261.12(b), an appropriate search shall be conducted of records of 
the Board in existence on the date of receipt of the request, and a 
review made of any responsive information located. The Secretary shall 
notify the requester of:
    (1) The Board's determination of the request;
    (2) The reasons for the determination;
    (3) The amount of information withheld;
    (4) The right of the requester to appeal to the Board any denial or 
partial denial, as specified in paragraph (i) of this section; and
    (5) In the case of a denial of a request, the name and title or 
position of the person responsible for the denial.
    (g) Referral to another agency. To the extent a request covers 
documents that were created by, obtained from, or classified by another 
agency, the Board may refer the request to that agency for a response 
and inform the requester promptly of the referral.
    (h) Providing responsive records. (1) Copies of requested records 
shall be sent to the requester by regular U.S. mail to the address 
indicated in the request, unless the requester elects to take delivery 
of the documents at the Freedom of Information Office or makes other 
acceptable arrangements, or the Board deems it appropriate to send the 
documents by another means.
    (2) The Board shall provide a copy of the record in any form or 
format requested if the record is readily reproducible by the Board in 
that form or format, but the Board need not provide more than one copy 
of any record to a requester.
    (i) Appeal of denial of request. Any person denied access to Board 
records requested under Sec. 261.12 may file a written appeal with the 
Board, as follows:
    (1) The appeal shall prominently display the phrase FREEDOM OF 
INFORMATION ACT APPEAL on the first page, and shall be addressed to the 
Freedom of Information Office, Board of Governors of the Federal Reserve 
System, 20th & C Street, N.W., Washington, D.C. 20551; or sent by 
facsimile to the Freedom of Information Office, (202) 872-7562 or 7565.
    (2) An initial request for records may not be combined in the same 
letter with an appeal.
    (3) The appeal shall be filed within 10 working days of the date on 
which the denial was issued, or the date on which documents in partial 
response to the request were transmitted to the requester, whichever is 
later. The Board may consider an untimely appeal if:
    (i) It is accompanied by a written request for leave to file an 
untimely appeal; and
    (ii) The Board determines, in its discretion and for good and 
substantial cause shown, that the appeal should be considered.
    (4) The Board shall make a determination regarding any appeal within 
20 working days of actual receipt of the appeal by the Freedom of 
Information Office, and the determination letter shall notify the 
appealing party of the right to seek judicial review.
    (5) The Secretary may reconsider a denial being appealed if 
intervening circumstances or additional facts not known at the time of 
the denial come to the attention of the Secretary while an appeal is 
pending.



Sec. 261.14  Exemptions from disclosure.

    (a) Types of records exempt from disclosure. Pursuant to 5 U.S.C. 
552(b), the following records of the Board are exempt from disclosure 
under this part:
    (1) National defense. Any information that is specifically 
authorized under criteria established by an Executive Order to be kept 
secret in the interest of national defense or foreign policy and is in 
fact properly classified pursuant to the Executive Order.
    (2) Internal personnel rules and practices. Any information related 
solely to the internal personnel rules and practices of the Board.

[[Page 244]]

    (3) Statutory exemption. Any information specifically exempted from 
disclosure by statute (other than 5 U.S.C. 552b), if the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (4) Trade secrets; commercial or financial information. Any matter 
that is a trade secret or that constitutes commercial or financial 
information obtained from a person and that is privileged or 
confidential.
    (5) Inter- or intra-agency memorandums. Information contained in 
inter- or intra-agency memorandums or letters that would not be 
available by law to a party (other than an agency) in litigation with an 
agency, including, but not limited to:
    (i) Memorandums;
    (ii) Reports;
    (iii) Other documents prepared by the staffs of the Board, Federal 
Reserve Banks, or the Office of Thrift Supervision (including documents 
transferred to the Board pursuant to section 323(b)(2) of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act (12 U.S.C. 5433)); and
    (iv) Records of deliberations of the Board and of discussions at 
meetings of the Board, any Board committee, or Board staff, that are not 
subject to 5 U.S.C. 552b (the Government in the Sunshine Act).
    (6) Personnel and medical files. Any information contained in 
personnel and medical files and similar files the disclosure of which 
would constitute a clearly unwarranted invasion of personal privacy.
    (7) Information compiled for law enforcement purposes. Any records 
or information compiled for law enforcement purposes, to the extent 
permitted under 5 U.S.C. 552(b)(7); including information relating to 
administrative enforcement proceedings of the Board.
    (8) Examination, inspection, operating, or condition reports, and 
confidential supervisory information. Any matter that is contained in or 
related to examination, operating, or condition reports prepared by, on 
behalf of, or for the use of an agency responsible for the regulation or 
supervision of financial institutions, including a state financial 
institution supervisory agency.
    (b) Segregation of nonexempt information. The Board shall provide 
any reasonably segregable portion of a record that is requested after 
deleting those portions that are exempt under this section.
    (c) Discretionary release. (1) Except where disclosure is expressly 
prohibited by statute, regulation, or order, the Board may release 
records that are exempt from mandatory disclosure whenever the Board or 
designated Board members, the Secretary of the Board, the General 
Counsel of the Board, the Director of the Division of Banking 
Supervision and Regulation, or the appropriate Federal Reserve Bank, 
acting pursuant to this part or 12 CFR part 265, determines that such 
disclosure would be in the public interest.
    (2) The Board may make any exempt information furnished in 
connection with an application for Board approval of a transaction 
available to the public in accordance with Sec. 261.12, and without 
prior notice and to the extent it deems necessary, may comment on such 
information in any opinion or statement issued to the public in 
connection with a Board action to which such information pertains.
    (d) Delayed release. Publication in the Federal Register or 
availability to the public of certain information may be delayed if 
immediate disclosure would likely:
    (1) Interfere with accomplishing the objectives of the Board in the 
discharge of its statutory functions;
    (2) Interfere with the orderly conduct of the foreign affairs of the 
United States;
    (3) Permit speculators or others to gain unfair profits or other 
unfair advantages by speculative trading in securities or otherwise;
    (4) Result in unnecessary or unwarranted disturbances in the 
securities markets;
    (5) Interfere with the orderly execution of the objectives or 
policies of other government agencies; or
    (6) Impair the ability to negotiate any contract or otherwise harm 
the

[[Page 245]]

commercial or financial interest of the United States, the Board, any 
Federal Reserve Bank, or any department or agency of the United States.
    (e) Prohibition against disclosure. Except as provided in this part, 
no officer, employee, or agent of the Board or any Federal Reserve Bank 
shall disclose or permit the disclosure of any unpublished information 
of the Board to any person (other than Board or Reserve Bank officers, 
employees, or agents properly entitled to such information for the 
performance of official duties).

[62 FR 54359, 54361, Oct. 20, 1997, as amended at 76 FR 56601, Sept. 13, 
2011]



Sec. 261.15  Request for confidential treatment.

    (a) Submission of request. Any submitter of information to the Board 
who desires confidential treatment pursuant to 5 U.S.C. 552(b)(4) and 
Sec. 261.14 (a)(4) shall file a request for confidential treatment with 
the Board (or in the case of documents filed with a Federal Reserve 
Bank, with that Federal Reserve Bank) at the time the information is 
submitted or a reasonable time after submission.
    (b) Form of request. Each request for confidential treatment shall 
state in reasonable detail the facts supporting the request and its 
legal justification. Conclusory statements that release of the 
information would cause competitive harm generally will not be 
considered sufficient to justify confidential treatment.
    (c) Designation and separation of confidential material. All 
information considered confidential by a submitter shall be clearly 
designated CONFIDENTIAL in the submission and separated from information 
for which confidential treatment is not requested. Failure to segregate 
confidential information from other material may result in release of 
the nonsegregated material to the public without notice to the 
submitter.
    (d) Exceptions. This section does not apply to:
    (1) Data collected on forms that are approved pursuant to the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and are deemed 
confidential by the Board. Any such form deemed confidential by the 
Board shall so indicate on the face of the form or in its instructions. 
The data may, however, be disclosed in aggregate form in such a manner 
that individual company data is not disclosed or derivable.
    (2) Any comments submitted by a member of the public on applications 
and regulatory proposals being considered by the Board, unless the Board 
or the Secretary determines that confidential treatment is warranted.
    (3) A determination by the Board to comment upon information 
submitted to the Board in any opinion or statement issued to the public 
as described in Sec. 261.14(c).
    (e) Special procedures. The Board may establish special procedures 
for particular documents, filings, or types of information by express 
provisions in this part or by instructions on particular forms that are 
approved by the Board. These special procedures shall take precedence 
over this section.



Sec. 261.16  Request for access to confidential commercial or
financial information.

    (a) Request for confidential information. A request by a submitter 
for confidential treatment of any information shall be considered in 
connection with a request for access to that information. At their 
discretion, appropriate Board or staff members (including Federal 
Reserve Bank staff) may act on the request for confidentiality prior to 
any request for access to the documents.
    (b) Notice to the submitter. When a request for access is received 
pursuant to the Freedom of Information Act (5 U.S.C. 552):
    (1) The Secretary shall notify a submitter of the request, if:
    (i) The submitter requested confidential treatment of the 
information pursuant to 5 U.S.C. 552(b)(4); and
    (ii) The request by the submitter for confidential treatment was 
made within 10 years preceding the date of the request for access.
    (2) Absent a request for confidential treatment, the Secretary may 
notify a submitter of a request for access to information provided by 
the submitter if the Secretary reasonably believes that disclosure of 
the information may

[[Page 246]]

cause substantial competitive harm to the submitter.
    (3) The notice given to the submitter shall:
    (i) Be given as soon as practicable after receipt of the request for 
access;
    (ii) Describe the request; and
    (iii) Give the submitter a reasonable opportunity, not to exceed ten 
working days from the date of notice, to submit written objections to 
disclosure of the information.
    (c) Exceptions to notice to submitter. Notice to the submitter need 
not be given if:
    (1) The Secretary determines that the request for access should be 
denied;
    (2) The requested information lawfully has been made available to 
the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The submitter's claim of confidentiality under 5 U.S.C. 
552(b)(4) appears obviously frivolous or has already been denied by the 
Secretary, except that in this last instance the Secretary shall give 
the submitter written notice of the determination to disclose the 
information at least five working days prior to disclosure.
    (d) Notice to requester. At the same time the Secretary notifies the 
submitter, the Secretary also shall notify the requester that the 
request is subject to the provisions of this section.
    (e) Written objections by submitter. Upon receipt of notice of a 
request for access to its information, the submitter may provide written 
objections to release of the information. Such objections shall state 
whether the information was provided voluntarily or involuntarily to the 
Board.
    (1) If the information was voluntarily provided to the Board, the 
submitter shall provide detailed facts showing that the information is 
customarily withheld from the public.
    (2) If the information was not provided voluntarily to the Board, 
the submitter shall provide detailed facts and arguments showing:
    (i) The likelihood of substantial harm that would be caused to the 
submitter's competitive position; or
    (ii) That release of the information would impair the Board's 
ability to obtain necessary information in the future.
    (f) Determination by Secretary. The Secretary's determination 
whether or not to disclose any information for which confidential 
treatment has been requested pursuant to this section shall be 
communicated to the submitter and the requester immediately. If the 
Secretary determines to disclose the information and the submitter has 
objected to such disclosure pursuant to paragraph (e) of this section, 
the Secretary shall provide the submitter with the reasons for 
disclosure, and shall delay disclosure for ten working days from the 
date of the determination.
    (g) Notice of lawsuit. (1) The Secretary shall promptly notify any 
submitter of information covered by this section of the filing of any 
suit against the Board to compel disclosure of such information.
    (2) The Secretary shall promptly notify the requester of any suit 
filed against the Board to enjoin the disclosure of any documents 
requested by the requester.



Sec. 261.17  Fee schedules; waiver of fees.

    (a) Fee schedules. The fees applicable to a request for records 
pursuant to Sec. Sec. 261.11 and 261.12 are set forth in appendix A to 
this section. These fees cover only the full allowable direct costs of 
search, duplication, and review. No fees will be charged where the 
average cost of collecting the fee (calculated at $5.00) exceeds the 
amount of the fee.
    (b) Payment procedures. The Secretary may assume that a person 
requesting records pursuant to Sec. 261.12 will pay the applicable 
fees, unless the request includes a limitation on fees to be paid or 
seeks a waiver or reduction of fees pursuant to paragraph (f) of this 
section.
    (1) Advance notification of fees. If the estimated charges are 
likely to exceed $100, the Freedom of Information Office shall notify 
the requester of the estimated amount, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. Upon 
receipt of such notice, the requester may confer with the Freedom of 
Information Office to reformulate the request to lower the costs. The 
time period for responding to requests under Sec. 261.13(e),

[[Page 247]]

and the processing of the request will be suspended until the requester 
agrees to pay the applicable fees.
    (2) Advance payment. The Secretary may require advance payment of 
any fee estimated to exceed $250. The Secretary may also require full 
payment in advance where a requester has previously failed to pay a fee 
in a timely fashion. The time period for responding to requests under 
Sec. 261.13(e), and the processing of the request will be suspended 
until the Freedom of Information Office receives the required payment.
    (3) Late charges. The Secretary may assess interest charges when fee 
payment is not made within 30 days of the date on which the billing was 
sent. Interest is at the rate prescribed in 31 U.S.C. 3717 and accrues 
from the date of the billing.
    (c) Categories of uses. The fees assessed depend upon the intended 
use for the records requested. In determining which category is 
appropriate, the Secretary shall look to the intended use set forth in 
the request for records. Where a requester's description of the use is 
insufficient to make a determination, the Secretary may seek additional 
clarification before categorizing the request.
    (1) Commercial use. The fees for search, duplication, and review 
apply when records are requested for commercial use.
    (2) Educational, research, or media use. The fees for duplication 
apply when records are not sought for commercial use, and the requester 
is a representative of the news media or an educational or noncommercial 
scientific institution, whose purpose is scholarly or scientific 
research. The first 100 pages of duplication, however, will be provided 
free.
    (3) All other uses. For all other requests, the fees for document 
search and duplication apply. The first two hours of search time and the 
first 100 pages of duplication, however, will be provided free.
    (d) Nonproductive search. Fees for search and review may be charged 
even if no responsive documents are located or if the request is denied.
    (e) Aggregated requests. A requester may not file multiple requests 
at the same time, solely in order to avoid payment of fees. If the 
Secretary reasonably believes that a requester is separating a request 
into a series of requests for the purpose of evading the assessment of 
fees, the Secretary may aggregate any such requests and charge 
accordingly. It is considered reasonable for the Secretary to presume 
that multiple requests of this type made within a 30-day period have 
been made to avoid fees.
    (f) Waiver or reduction of fees. A request for a waiver or reduction 
of the fees, and the justification for the waiver, shall be included 
with the request for records to which it pertains. If a waiver is 
requested and the requester has not indicated in writing an agreement to 
pay the applicable fees if the waiver request is denied, the time for 
response to the request for documents, as set forth in Sec. 261.13(e), 
shall not begin until a waiver has been granted; or if the waiver is 
denied, until the requester has agreed to pay the applicable fees.
    (1) Standards for determining waiver or reduction. The Secretary 
shall grant a waiver or reduction of fees where it is determined both 
that disclosure of the information is in the public interest because it 
is likely to contribute significantly to public understanding of the 
operation or activities of the government, and that the disclosure of 
information is not primarily in the commercial interest of the 
requester. In making this determination, the following factors shall be 
considered:
    (i) Whether the subject of the records concerns the operations or 
activities of the government;
    (ii) Whether disclosure of the information is likely to contribute 
significantly to public understanding of government operations or 
activities;
    (iii) Whether the requester has the intention and ability to 
disseminate the information to the public;
    (iv) Whether the information is already in the public domain;
    (v) Whether the requester has a commercial interest that would be 
furthered by the disclosure; and, if so,
    (vi) Whether the magnitude of the identified commercial interest of 
the

[[Page 248]]

requester is sufficiently large, in comparison with the public interest 
in disclosure, that disclosure is primarily in the commercial interest 
of the requester.
    (2) Contents of request for waiver. A request for a waiver or 
reduction of fees shall include:
    (i) A clear statement of the requester's interest in the documents;
    (ii) The use proposed for the documents and whether the requester 
will derive income or other benefit for such use;
    (iii) A statement of how the public will benefit from such use and 
from the Board's release of the documents;
    (iv) A description of the method by which the information will be 
disseminated to the public; and
    (v) If specialized use of the information is contemplated, a 
statement of the requester's qualifications that are relevant to that 
use.
    (3) Burden of proof. The burden shall be on the requester to present 
evidence or information in support of a request for a waiver or 
reduction of fees.
    (4) Determination by Secretary. The Secretary shall make a 
determination on the request for a waiver or reduction of fees and shall 
notify the requester accordingly. A denial may be appealed to the Board 
in accordance with Sec. 261.13(i).
    (g) Employee requests. In connection with any request by an 
employee, former employee, or applicant for employment, for records for 
use in prosecuting a grievance or complaint of discrimination against 
the Board, fees shall be waived where the total charges (including 
charges for information provided under the Privacy Act of 1974 (5 U.S.C. 
552a) are $50 or less; but the Secretary may waive fees in excess of 
that amount.
    (h) Special services. The Secretary may agree to provide, and set 
fees to recover the costs of, special services not covered by the 
Freedom of Information Act, such as certifying records or information 
and sending records by special methods such as express mail or overnight 
delivery.

    Appendix A to Sec. 261.17--Freedom of Information Fee Schedule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Duplication:
  Photocopy, per standard page................................     $0.10
  Paper copies of microfiche, per frame.......................       .10
  Duplicate microfiche, per microfiche........................       .35
Search and review:
  Clerical/Technical, hourly rate.............................     20.00
  Professional/Supervisory, hourly rate.......................     38.00
  Manager/Senior Professional, hourly rate....................     65.00
Computer search and production:
  Computer operator search, hourly rate.......................     32.00
  Tapes (cassette) per tape...................................      6.00
  Tapes (cartridge), per tape.................................      9.00
  Tapes (reel), per tape......................................     18.00
  Diskettes (3\1/2\), per diskette.................      4.00
  Diskettes (5\1/4\), per diskette.................      5.00
  Computer Output (PC), per minute............................       .10
  Computer Output (mainframe).................................     (\1\)
------------------------------------------------------------------------
\1\ Actual cost.


[62 FR 54365, Oct. 20, 1997; 62 FR 62508, Nov. 24, 1997]



    Subpart C_Confidential Information Made Available to Supervised 
     Institutions, Financial Institution Supervisory Agencies, Law 
        Enforcement Agencies, and Others in Certain Circumstances



Sec. 261.20  Confidential supervisory information made available to 
supervised financial institutions and financial institution

supervisory agencies.

    (a) Disclosure of confidential supervisory information to supervised 
financial institutions. Confidential supervisory information concerning 
a supervised bank, bank holding company (including subsidiaries), U.S. 
branch or agency of a foreign bank, savings and loan holding company 
(including subsidiaries), or other institution examined by the Federal 
Reserve System (``supervised financial institution'') may be made 
available by the Board or the appropriate Federal Reserve Bank to the 
supervised financial institution.
    (b) Disclosure of confidential supervisory information by supervised 
financial institution--(1) Parent bank holding company, parent savings 
and loan holding company, directors, officers, and employees. Any 
supervised financial institution lawfully in possession of confidential 
supervisory information of the Board pursuant to this section may

[[Page 249]]

disclose such information, or portions thereof, to its directors, 
officers, and employees, and to its parent bank holding company or 
parent savings and loan holding company and its directors, officers, and 
employees.
    (2) Certified public accountants and legal counsel. Any supervised 
financial institution lawfully in possession of confidential supervisory 
information of the Board pursuant to this section may disclose such 
information, or portions thereof, to any certified public accountant or 
legal counsel employed by the supervised financial institution, subject 
to the following conditions:
    (i) Certified public accountants or legal counsel shall review the 
confidential supervisory information only on the premises of the 
supervised financial institution, and shall not make or retain any 
copies of such information;
    (ii) The certified public accountants or legal counsel shall not 
disclose the confidential supervisory information for any purpose 
without the prior written approval of the Board's General Counsel except 
as necessary to provide advice to the supervised financial institution, 
its parent bank holding company, or the officers, directors, and 
employees of such supervised financial institution and parent bank 
holding company.
    (c) Disclosure upon request to Federal financial institution 
supervisory agencies. Upon requests, the Director of the Division of 
Banking Supervision and Regulation or the appropriate Federal Reserve 
Bank, may make available to the Comptroller of the Currency, the Federal 
Deposit Insurance Corporation, and the Federal Home Loan Bank Board and 
their regional offices and representatives, confidential supervisory 
information and other appropriate information (such as confidential 
operating and condition reports) relating to a bank, bank holding 
company (including subsidiaries), savings and loan holding company 
(including subsidiaries), U.S. branch or agency of a foreign bank, or 
other supervised financial institution.
    (d) Disclosure upon request to state financial institution 
supervisory agencies. Upon requests, the Director of the Division of 
Banking Supervision and Regulation or the appropriate Federal Reserve 
Bank may make available confidential supervisory information and other 
appropriate information (such as confidential operating and condition 
reports) relating to a bank, bank holding company (including 
subsidiaries), savings and loan holding company (including 
subsidiaries), U.S. branch or agency of a foreign bank, or other 
supervised financial institution to:
    (e) Discretionary disclosures. The Board may determine, from time to 
time, to authorize other disclosures of confidential information as 
necessary.
    (f) Conditions and limitations. The Board may impose any conditions 
or limitations on disclosure under this section that it determines are 
necessary to effect the purposes of this regulation.
    (g) Other disclosure prohibited. All confidential supervisory 
information or other information made available under this section shall 
remain the property of the Board. No supervised financial institution, 
financial institution supervisory agency, person, or any other party to 
whom the information is made available, or any other officer, director, 
employee or agent thereof, may disclose such information without the 
prior written permission of the Board's General Counsel except in 
published statistical material that does not disclose, either directly 
or when used in conjunction with publicly available information, the 
affairs of any individual, corporation, or other entity. No person 
obtaining access to confidential supervisory information pursuant to 
this section may make a personal copy of any such information; and no 
person may remove confidential supervisory information from the premises 
of the institution or agency in possession of such information except as 
permitted by specific language in this regulation or by the Board.
    (h) Disclosure of Foreign Bank Confidential Report of Operations--
(1) Availability of Foreign Bank Confidential Report of Operations to 
Bank Supervisory Agencies. Notwithstanding any other provision of this 
regulation, any Confidential Report of Operations (Form F.R. 2068) of a 
foreign banking organization may, upon written request to

[[Page 250]]

and approval by the Director of the Division of Banking Supervision and 
Regulation (or his delegee), and with the concurrence of the General 
Counsel (or his delegee), be made available for inspection to another 
bank supervisory authority having general supervision of any United 
States branch, agency, subsidiary bank or commercial lending company of 
the foreign banking organization, only for use where necessary in the 
performance of official duties. These reports shall be made available 
for inspection by authorized persons only on Federal Reserve premises 
under the same procedures as apply to personnel of the Federal Reserve 
System. All reports made available under this paragraph shall remain the 
property of the Board; and no person, agency or authority who obtains 
access to any such report, or any officer, director, or employee 
thereof, shall publish, publicize, or otherwise disclose any information 
contained in the report to any person.
    (2) Restrictions on disclosure by Federal Reserve System employees. 
It is the Board's policy that the confidentiality of a foreign banking 
organization's Confidential Report of Operations (Form F.R. 2068) should 
be maintained at all times. Except as provided by paragraph (h)(1) of 
this section, information submitted to the Board as part of any 
Confidential Report of Operations is not available for public inspection 
by any person other than an officer, employee, or agent of the Board or 
of a Federal Reserve Bank properly entitled to such information in the 
performance of such person's official duties. Any employee that violates 
this section by releasing such a report to any unauthorized person may 
be subject to disciplinary action under 12 CFR 264.735-5 (Rules of 
Employee Responsibilities and Conduct).

[53 FR 20815, June 7, 1988. Redesignated at 62 FR 54359, Oct. 20, 1997, 
as amended at 76 FR 56601, Sept. 13, 2011]



Sec. 261.21  Confidential information made available to law enforcement
agencies and other nonfinancial institution supervisory agencies.

    (a) Disclosure upon request. Upon written request, the Board may 
make available to appropriate law enforcement agencies and to other 
nonfinancial institution supervisory agencies for use where necessary in 
the performance of official duties, reports of examination and 
inspection, confidential supervisory information, and other confidential 
documents and information of the Board concerning banks, bank holding 
companies and their subsidiaries, U.S. branches and agencies of foreign 
banks, savings and loan holding companies and their subsidiaries, and 
other examined institutions.
    (b) Eligibility. Federal, state, and local law enforcement agencies 
and other nonfinancial institution supervisory agencies may file written 
requests with the Board for access to confidential documents and 
information under this section of the regulation. Properly accredited 
foreign law enforcement agencies and other foreign government agencies 
may also file written requests with the Board.
    (c) Contents of request. To obtain access to confidential documents 
or information under this section of the regulation, the head of the law 
enforcement agency or nonfinancial institution supervisory agency (or 
their designees) shall address a letter request to the Board's General 
Counsel, specifying:
    (1) The particular information, kinds of information, and where 
possible, the particular documents to which access is sought;
    (2) The reasons why such information cannot be obtained from the 
examined institution in question rather than from the Board;
    (3) A statement of the law enforcement purpose or other purpose for 
which the information shall be used;
    (4) Whether the requested disclosure is permitted or restricted in 
any way by applicable law or regulation;
    (5) A commitment that the information requested shall not be 
disclosed to any person outside the agency without the written 
permission of the Board or its General Counsel; and
    (6) If the document or information requested includes customer 
account information subject to the Right to Financial Privacy Act, as 
amended (12 U.S.C. 3401 et seq.), a statement that such customer account 
information need not be provided, or a statement as

[[Page 251]]

to why the Act does not apply to the request, or a certification that 
the requesting agency has complied with the requirements of the Act.
    (d) Action on request. (1) The General Counsel shall review each 
request and may approve the request upon determining that:
    (i) The request complies with this section;
    (ii) The information is needed in connection with a formal 
investigation or other official duties of the requesting agency;
    (iii) Satisfactory assurances of confidentiality have been given; 
and
    (iv) No law prohibits the requested disclosure.
    (2) The General Counsel may impose any conditions or limitations on 
disclosure that the General Counsel determines to be necessary to effect 
the purposes of this regulation or to insure compliance with applicable 
laws or regulations.
    (e) Federal and state grand jury, criminal trial, and government 
administrative subpoenas. The Board's General Counsel shall review and 
may approve the disclosure of confidential information pursuant to 
Federal and state grand jury, criminal trial, and government 
administrative subpoenas. The General Counsel may impose such conditions 
or limitations on disclosure under this section that the General Counsel 
determines are necessary to effect the purposes of this regulation, to 
insure compliance with applicable laws or regulations, or to protect the 
confidentiality of the Board's information.
    (f) Requests for testimony or interviews. Government agencies 
seeking to obtain testimony or interviews from current and former 
Federal Reserve System staff concerning any confidential information of 
the Board shall use the procedures set out in paragraph (c) of this 
section.
    (g) Other disclosure prohibited. All reports and information made 
available under this section remain the property of the Board, and 
except as otherwise provided in this regulation, no person, agency, or 
authority to whom the information is made available, or any officer, 
director, or employee thereof, may disclose any such information except 
in published statistical material that does not disclose, either 
directly or when used in conjunction with publicly available 
information, the affairs of any individual or corporation.

[53 FR 20815, June 7, 1988. Redesignated at 62 FR 54359, Oct. 20, 1997, 
as amended at 76 FR 56601, Sept. 13, 2011]



Sec. 261.22  Other disclosure of confidential supervisory information.

    (a) Board policy. It is the Board's policy regarding confidential 
supervisory information that such information is confidential and 
privileged. Accordingly, the Board will not normally disclose this 
information to the public. The Board, when considering a request for 
disclosure of confidential supervisory information under this section, 
will not authorize disclosure unless the person requesting disclosure is 
able to show a substantial need for such information that outweighs the 
need to maintain confidentiality.
    (b) Requests for disclosure--(1) Requests from litigants for 
information or testimony. Any person (except agencies identified in 
Sec. Sec. 261.20 and 261.21 of this regulation) seeking access to 
confidential supervisory information or seeking to obtain the testimony 
of present or former Board or Reserve Bank employees on matters 
involving confidential supervisory information of the Board, whether by 
deposition or otherwise, for use in litigation before a court, board, 
commission, or agency, shall file a written request with the General 
Counsel of the Board. The request shall describe:
    (i) The particular information, kinds of information, and where 
possible, the particular documents to which access is sought;
    (ii) The judicial or administrative action for which the 
confidential supervisory information is sought;
    (iii) The relationship of the confidential supervisory information 
to the issues or matters raised by the judicial or administrative 
action;
    (iv) The requesting person's need for the information;
    (v) The reason why the requesting person cannot obtain the 
information sought from any other source; and
    (vi) A commitment to obtain a protective order acceptable to the 
Board

[[Page 252]]

from the judicial or administrative tribunal hearing the action 
preserving the confidentiality of any information that is provided.
    (2) All other requests. Any other person (except agencies identified 
in Sec. Sec. 261.20 and 261.21 of this regulation) seeking access to 
confidential supervisory information for any other purpose shall file a 
written request with the General Counsel of the Board. A request under 
this paragraph (b)(2) shall describe the purpose for which such 
disclosure is sought.
    (c) Action on request--(1) Determination of approval. The General 
Counsel of the Board may approve a request made under this section 
provided that he or she determines that:
    (i) The person making the request has shown a substantial need for 
confidential supervisory information that outweighs the need to maintain 
confidentiality; and
    (ii) Disclosure is consistent with the supervisory and regulatory 
responsibilities and policies of the Board.
    (2) Conditions or limitations. The General Counsel of the Board may, 
in approving a request, impose such conditions or limitations on use of 
any information disclosed as is deemed necessary to protect the 
confidentiality of the Board's information.
    (d) Exhaustion of administrative remedies for discovery purposes in 
civil, criminal, or administrative action. Action on a request under 
this section by the General Counsel of the Board shall exhaust 
administrative remedies for discovery purposes in any civil, criminal, 
or administrative proceeding. A request made pursuant to Sec. 261.12 of 
this regulation does not exhaust administrative remedies for discovery 
purposes. Therefore, it is not necessary to file a request pursuant to 
Sec. 261.12 to exhaust administrative remedies under this section.
    (e) Other disclosure prohibited. All confidential supervisory 
information made available under this section shall remain the property 
of the Board. Any person in possession of such information shall not use 
or disclose such information for any purpose other than that authorized 
by the General Counsel of the Board without his or her prior written 
approval.

[53 FR 20815, June 7, 1988. Redesignated at 62 FR 54359, Oct. 20, 1997; 
corrected at 62 FR 62508, Nov. 24, 1997]



Sec. 261.23  Subpoenas, orders compelling production, and other process.

    (a) Advice by person served. Any person (including any officers, 
employee, or agent of the Board or any Federal Reserve Bank) who has 
documents or information of the Board that may not be disclosed and who 
is served with a subpoena, order, or other judicial or administrative 
process requiring his or her personal attendance as a witness or 
requiring the production of documents or information in any proceeding, 
shall:
    (1) Promptly inform the Board's General Counsel of the service and 
all relevant facts, including the documents and information requested, 
and any facts of assistance to the Board in determining whether the 
material requested should be made available; and
    (2) At the appropriate time inform the court or tribunal that issued 
the process and the attorney for the party at whose instance the process 
was issued of the substance of these rules.
    (b) Appearance by person served. Unless the Board has authorized 
disclosure of the information requested, any person who has Board 
information that may not be disclosed, and who is required to respond to 
a subpoena or other legal process, shall attend at the time and place 
required and decline to disclose or to give any testimony with respect 
to the information, basing such refusal upon the provisions of this 
regulation. If the court or other body orders the disclosure of the 
information or the giving of testimony, the person having the 
information shall continue to decline to disclose the information and 
shall promptly report the facts to the Board for such action as the 
Board may deem appropriate.

[53 FR 20815, June 7, 1988. Redesignated at 62 FR 54359, Oct. 20, 1997]

[[Page 253]]



PART 261a_RULES REGARDING ACCESS TO PERSONAL INFORMATION UNDER THE
PRIVACY ACT 1974--Table of Contents



                      Subpart A_General Provisions

Sec.
261a.1 Authority, purpose and scope.
261a.2 Definitions.
261a.3 Custodian of records; delegations of authority.
261a.4 Fees.

 Subpart B_Procedures for Requests by Individual to Whom Record Pertains

261a.5 Request for access to record.
261a.6 Board procedures for responding to request for access.
261a.7 Special procedures for medical records.
261a.8 Request for amendment of record.
261a.9 Board review of request for amendment of record.
261a.10 Appeal of adverse determination of request for access or 
          amendment.

                     Subpart C_Disclosure of Records

261a.11 Restrictions on disclosure.
261a.12 Exempt records.

    Authority: 5 U.S.C. 552a.

    Source: 75 FR 63704, Oct. 18, 2010, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 261a.1  Authority, purpose and scope.

    (a) Authority. This part is issued by the Board of Governors of the 
Federal Reserve System (the Board) pursuant to the Privacy Act of 1974 
(5 U.S.C. 552a).
    (b) Purpose and scope. This part implements the provisions of the 
Privacy Act of 1974 with regard to the maintenance, protection, 
disclosure, and amendment of records contained within systems of records 
maintained by the Board. It sets forth the procedures for requests for 
access to, or amendment of, records concerning individuals that are 
contained in systems of records maintained by the Board.



Sec. 261a.2  Definitions.

    For purposes of this part, the following definitions apply:
    (a) Business day means any day except Saturday, Sunday or a legal 
Federal holiday.
    (b) Guardian means the parent of a minor, or the legal guardian of 
any individual who has been declared to be incompetent due to physical 
or mental incapacity or age by a court of competent jurisdiction.
    (c) Individual means a natural person who is either a citizen of the 
United States or an alien lawfully admitted for permanent residence.
    (d) Maintain includes maintain, collect, use, or disseminate.
    (e) Record means any item, collection, or grouping of information 
about an individual maintained by the Board that contains the 
individual's name or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a 
fingerprint, voice print, or photograph.
    (f) Routine use means, with respect to disclosure of a record, the 
use of such record for a purpose that is compatible with the purpose for 
which it was collected or created.
    (g) System of records means a group of any records under the control 
of the Board from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual.
    (h) You means an individual making a request under the Privacy Act.
    (i) We means the Board.



Sec. 261a.3  Custodian of records; delegations of authority.

    (a) Custodian of records. The Secretary of the Board is the official 
custodian of all Board records.
    (b) Delegated authority of the Secretary. The Secretary of the Board 
is authorized to--
    (1) Respond to requests for access to, accounting of, or amendment 
of records contained in a system of records, except for requests 
regarding systems of records maintained by the Board's Office of 
Inspector General (OIG);
    (2) Approve the publication of new systems of records and amend 
existing systems of records, except those systems of records exempted 
pursuant to Sec. 261a.12(b), (c) and (d); and

[[Page 254]]

    (3) File any necessary reports related to the Privacy Act.
    (c) Delegated authority of designee. Any action or determination 
required or permitted by this part to be done by the Secretary of the 
Board may be done by a Deputy or Associate Secretary or other 
responsible employee of the Board who has been duly designated for this 
purpose by the Secretary.
    (d) Delegated authority of Inspector General. The Inspector General 
is authorized to respond to requests for access to, accounting of, or 
amendment of records contained in a system of records maintained by the 
OIG.



Sec. 261a.4  Fees.

    (a) Copies of records. We will provide you with copies of the 
records you request under Sec. 261a.5 of this part at the same cost we 
charge for duplication of records and/or production of computer output 
under the Board's Rules Regarding Availability of Information, 12 CFR 
Part 261.
    (b) No fee. We will not charge you a fee if:
    (1) Your total charges are less than $5, or
    (2) You are a Board employee or former employee, or an applicant for 
employment with the Board, and you request records pertaining to you.



Subpart B_Procedures for Requests by Individuals to Whom Record Pertains



Sec. 261a.5  Request for access to records.

    (a) Procedures for making request. (1) Except as provided in 
paragraph (a)(2) or (f) of this section, if you (or your guardian) want 
to learn of the existence of, or to gain access to, your record in a 
system of records, you may submit a request in writing to the Secretary 
of the Board, Board of Governors of the Federal Reserve System, 20th 
Street and Constitution Avenue, NW., Washington, DC 20551.
    (2) If you request information contained in a system of records 
maintained by the Board's OIG, you may submit the request in writing to 
the Inspector General, Board of Governors of the Federal Reserve System, 
20th Street and Constitution Avenue, NW., Washington, DC 20551.
    (b) Contents of request. Except for requests made under paragraph 
(f) of this section, your written request must include-
    (1) A statement that the request is made pursuant to the Privacy Act 
of 1974;
    (2) The name of the system of records you believe contains the 
record you request, or a concise description of that system of records;
    (3) Information necessary to verify your identity pursuant to 
paragraph (c) of this section; and
    (4) Any other information that might assist us in identifying the 
record you seek (e.g., maiden name, dates of employment, etc.).
    (c) Verification of identity. We will require proof of your 
identity, and we reserve the right to determine whether the proof you 
submit is adequate. In general, we will consider the following to be 
adequate proof of identity:
    (1) If you are a current or former Board employee, your Board 
identification card; or
    (2) If you are not a current or former Board employee, either
    (i) Two forms of identification, including one photo identification, 
or
    (ii) A notarized statement attesting to your identity.
    (d) Verification of identity not required. We will not require 
verification of identity when the records you seek are available to any 
person under the Freedom of Information Act (5 U.S.C. 552).
    (e) Request for accounting of previous disclosures. You may request 
an accounting of previous disclosures of records pertaining to you in a 
system of records as provided in 5 U.S.C. 552a(c).
    (f) Requests Made by Board Employees. Unless the Secretary provides 
and you are notified otherwise, if you are a current or former Board 
employee, you also may request access to your record in a system of 
records by appearing in person before or writing directly to the Board 
office that maintains the record.

[[Page 255]]



Sec. 261a.6  Board procedures for responding to request for access.

    (a) Compliance with Freedom of Information Act. We will handle every 
request made pursuant to Sec. 261a.5 of this part (other than requests 
submitted under Sec. 261a.5(f) that were granted) as a request for 
information pursuant to the Freedom of Information Act. The time limits 
set forth in paragraph (b) of this section and the fees specified in 
Sec. 261a.4 of this part will apply to such requests.
    (b) Time for response. We will acknowledge every request made 
pursuant to Sec. 261a.5 of this part within 20 business days from 
receipt of the request and will, where practicable, respond to each 
request within that 20-day period. When a full response is not 
practicable within the 20-day period, we will respond as promptly as 
possible.
    (c) Disclosure. (1) When we disclose information in response to your 
request, except for information maintained by the Board's OIG, we will 
make the information available for inspection and copying during regular 
business hours at the Board's Freedom of Information Office, or we will 
mail it to you on your request. For requests made under paragraph Sec. 
261a.5(f), you may request that the information be provided orally or in 
person.
    (2) When the information to be disclosed is maintained by the 
Board's OIG, the OIG will make the information available for inspection 
and copying or will mail it to you on request.
    (3) You may bring with you anyone you choose to see the requested 
material. All visitors to the Board's buildings must comply with the 
Board's security procedures.
    (d) Denial of request. If we deny a request made pursuant to Sec. 
261a.5 of this part, we will tell you the reason(s) for denial and the 
procedures for appealing the denial. If a request made under paragraph 
Sec. 261a.5(f) is denied, in whole or in part, the Board office that 
denied your request will simultaneously notify the Secretary of the 
Board of its action.



Sec. 261a.7  Special procedures for medical records.

    If you request medical or psychological records pursuant to Sec. 
261a.5, we will disclose them directly to you unless the Chief Privacy 
Officer, in consultation with the Board's physician or Employee 
Assistance Program counselor, determines that such disclosure could have 
an adverse effect on you. If the Chief Privacy Officer makes that 
determination, we will provide the information to a licensed physician 
or other appropriate representative that you designate, who may disclose 
those records to you in a manner he or she deems appropriate.



Sec. 261a.8  Request for amendment of record.

    (a) Procedures for making request.
    (1) If you wish to amend a record that pertains to you in a system 
of records, you may submit the request in writing to the Secretary of 
the Board (or to the Inspector General for records in a system of 
records maintained by the OIG) in an envelope clearly marked ``Privacy 
Act Amendment Request.''
    (2) Your request for amendment of a record must--
    (i) Identify the system of records containing the record for which 
amendment is requested;
    (ii) Specify the portion of that record requested to be amended; and
    (iii) Describe the nature of and reasons for each requested 
amendment.
    (3) We will require you to verify your identity under the procedures 
set forth in Sec. 261a.5(c) of this part, unless you have already done 
so in a related request for access or amendment.
    (b) Burden of proof. Your request for amendment of a record must 
tell us why you believe the record is not accurate, relevant, timely, or 
complete. You have the burden of proof for demonstrating the 
appropriateness of the requested amendment, and you must provide 
relevant and convincing evidence in support of your request.



Sec. 261a.9  Board review of request for amendment of record.

    (a) Time limits. We will acknowledge your request for amendment of 
your record within 10 business days after we

[[Page 256]]

receive your request. In the acknowledgment, we may request additional 
information necessary for a determination on the request for amendment. 
We will make a determination on a request to amend a record promptly.
    (b) Contents of response to request for amendment. When we respond 
to a request for amendment, we will tell you whether your request is 
granted or denied. If we grant your request, we will take the necessary 
steps to amend your record and, when appropriate and possible, notify 
prior recipients of the record of our action. If we deny the request, in 
whole or in part, we will tell you--
    (1) Why we denied the request (or portion of the request);
    (2) That you have a right to appeal; and
    (3) How to file an appeal.



Sec. 261a.10  Appeal of adverse determination of request for access
or amendment.

    (a) Appeal. You may appeal a denial of a request made pursuant to 
Sec. 261a.5 or Sec. 261a.8 of this part within 10 business days after 
we notify you that we denied your request. Your appeal must--
    (1) Be made in writing with the words ``PRIVACY ACT APPEAL'' written 
prominently on the first page and addressed to the Secretary of the 
Board, Board of Governors of the Federal Reserve System, 20th Street and 
Constitution Avenue, NW., Washington, DC 20551;
    (2) Specify the background of the request; and
    (3) Provide reasons why you believe the initial denial is in error.
    (b) Determination. We will make a determination on your appeal 
within 30 business days from the date we receive it, unless we extend 
the time for good cause.
    (1) If we grant your appeal regarding a request for amendment, we 
will take the necessary steps to amend your record and, when appropriate 
and possible, notify prior recipients of the record of our action.
    (2) If we deny your appeal, we will inform you of such 
determination, tell you our reasons for the denial, and tell you about 
your rights to file a statement of disagreement and to have a court 
review our decision.
    (c) Statement of disagreement. (1) If we deny your appeal regarding 
a request for amendment, you may file a concise statement of 
disagreement with the denial. We will maintain your statement with the 
record you sought to amend and any disclosure of the record will include 
a copy of your statement of disagreement.
    (2) When practicable and appropriate, we will provide a copy of the 
statement of disagreement to any prior recipients of the record.



                     Subpart C_Disclosure of Records



Sec. 261a.11  Restrictions on disclosure.

    We will not disclose any record about you contained in a system of 
records to any person or agency without your prior written consent 
unless the disclosure is authorized by 5 U.S.C. 552a(b).



Sec. 261a.12  Exempt records.

    (a) Information compiled for civil action. This regulation does not 
permit you to have access to any information compiled in reasonable 
anticipation of a civil action or proceeding.
    (b) Law enforcement information. Pursuant to 5 U.S.C. 552a(k)(2), we 
have determined that it is necessary to exempt the systems of records 
listed below from the requirements of the Privacy Act concerning access 
to records, accounting of disclosures of records, maintenance of only 
relevant and necessary information in files, and certain publication 
provisions, respectively, 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), 
(H) and (I), and (f), and Sec. Sec. 261a.5, 261a.7, and 261a.8 of this 
part. The exemption applies only to the extent that a system of records 
contains investigatory materials compiled for law enforcement purposes.

(1) BGFRS-1 Recruiting and Placement Records
(2) BGFRS-2 Personnel Security Systems
(3) BGFRS-4 General Personnel Records
(4) BGFRS-5 EEO Discrimination Complaint File
(5) BGFRS-18 Consumer Complaint Information

[[Page 257]]

(6) BGFRS-21 Supervisory Enforcement Actions and Special Examinations 
Tracking System
(7) BGFRS-31 Protective Information System
(8) BGFRS-32 Visitor Registration System
(9) BGFRS-36 Federal Reserve Application Name Check System
(10) BGFRS-37 Electronic Applications
(11) BGFRS/OIG-1 OIG Investigative Records

    (c) Confidential references. Pursuant to 5 U.S.C. 552a(k)(5), we 
have determined that it is necessary to exempt the systems of records 
listed below from the requirements of the Privacy Act concerning access 
to records, accounting of disclosures of records, maintenance of only 
relevant and necessary information in files, and certain publication 
provisions, respectively, 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), 
(H) and (I), and (f), and Sec. Sec. 261a.5, 261a.7, and 261a.8 of this 
part. The exemption applies only to the extent that a system of records 
contains investigatory material compiled to determine an individual's 
suitability, eligibility, and qualifications for Board employment or 
access to classified information, and the disclosure of such material 
would reveal the identity of a source who furnished information to the 
Board under a promise of confidentiality.

(1) BGFRS-1 Recruiting and Placement Records
(2) BGFRS-2 Personnel Security Systems
(3) BGFRS-4 General Personnel Records
(4) BGFRS-10 General Files on Board Members
(5) BGFRS-11 Official General Files
(6) BGFRS-13 Federal Reserve System Bank Supervision Staff 
Qualifications
(7) BGFRS-14 General File on Federal Reserve Bank and Branch Directors
(8) BGFRS-25 Multi-Rater Feedback Records
(9) BGFRS/OIG-1 OIG Investigative Records
(10) BGFRS/OIG-2 OIG Personnel Records

    (d) Criminal law enforcement information. Pursuant to 5 U.S.C. 
552a(j)(2), we have determined that the OIG Investigative Records 
(BGFRS/OIG-1) are exempt from the Privacy Act, except the provisions 
regarding disclosure, the requirement to keep an accounting, certain 
publication requirements, certain requirements regarding the proper 
maintenance of systems of records, and the criminal penalties for 
violation of the Privacy Act, respectively, 5 U.S.C. 552a(b), (c)(1), 
and (2), (e)(4)(A) through (F), (e)(6), (e)(7), (e)(9), (e)(10), (e)(11) 
and (i).



PART 261b_RULES REGARDING PUBLIC OBSERVATION OF MEETINGS--
Table of Contents



Sec.
261b.1 Basis and scope.
261b.2 Definitions.
261b.3 Conduct of agency business.
261b.4 Meetings open to public observation.
261b.5 Exemptions.
261b.6 Public announcement of meetings.
261b.7 Meetings closed to public observation under expedited procedures.
261b.8 Meetings closed to public observation under regular procedures.
261b.9 Changes with respect to publicly announced meeting.
261b.10 Certification of General Counsel.
261b.11 Transcripts, recordings, and minutes.
261b.12 Procedures for inspection and obtaining copies of transcriptions 
          and minutes.
261b.13 Fees.

    Authority: 5 U.S.C. 552b.

    Source: 42 FR 13297, Mar. 10, 1977, unless otherwise noted.



Sec. 261b.1  Basis and scope.

    This part is issued by the Board of Governors of the Federal Reserve 
System (``the Board'') under section 552b of title 5 of the United 
States Code, the Government in the Sunshine Act (``the Act''), to carry 
out the policy of the Act that the public is entitled to the fullest 
practicable information regarding the decision making processes of the 
Board while at the same time preserving the rights of individuals and 
the ability of the Board to carry out its responsibilities. These 
regulations fulfill the requirement of subsection (g) of the Act that 
each agency subject to the provisions of the Act shall promulgate 
regulations to implement the open

[[Page 258]]

meeting requirements of subsections (b) through (f) of the Act.



Sec. 261b.2  Definitions.

    For purposes of this part, the following definitions shall apply:
    (a) The term agency means the Board and subdivisions thereof.
    (b) The term subdivision means any group composed of two or more 
Board members that is authorized to act on behalf of the Board.
    (c) The term meeting means the deliberations of at least the number 
of individual agency members required to take action on behalf of the 
agency where such deliberations determine or result in the joint conduct 
or disposition of official Board business, but does not include (1) 
deliberations required or permitted by subsections (d) or (e) of the 
Act, or (2) the conduct or disposition of official agency business by 
circulating written material to individual members.
    (d) The term number of individual agency members required to take 
action on behalf of the agency means in the case of the Board, a 
majority of its members except that (1) Board determination of the ratio 
of reserves against deposits under section 19(b) of the Federal Reserve 
Act requires the vote of four members, (2) Board action with respect to 
advances, discounts and rediscounts under sections 10(a), 11(b), and 
13(3) of the Federal Reserve Act requires the vote of five members and 
(3) Board action with respect to the percentage of individual member 
bank capital and surplus which may be represented by loans secured by 
stock and bond collateral under section 11(m) of the Federal Reserve Act 
requires the vote of six members. In the case of subdivisions of the 
Board, the term means the number of members constituting a quorum of the 
designated subdivision.
    (e) The term member means a member of the Board appointed under 
section 10 of the Federal Reserve Act. In the case of certain Board 
proceedings pursuant to 12 U.S.C. 1818(e), the Comptroller of the 
Currency is entitled to sit as a member of the Board and for these 
proceedings he shall be deemed a member for the purposes of this part. 
In the case of any subdivision of the Board, the term member means a 
member of the Board designated to serve on that subdivision.
    (f) The term public observation means that the public shall have the 
right to listen and observe but not to record any of the meetings by 
means of cameras or electronic or other recording devices unless 
approval in advance is obtained from the Public Affairs Office of the 
Board and shall not have the right to participate in the meeting, unless 
participation is provided for in the Board's Rules of Procedure.
    (g) The term Federal agency means an agency as defined in 5 U.S.C. 
551(1).
    (h) Committee means the Action Committee established pursuant to 12 
CFR 265.1a(c).

[42 FR 13297, Mar. 10, 1977, as amended at 43 FR 34481, Aug. 4, 1978]



Sec. 261b.3  Conduct of agency business.

    Members shall not jointly conduct or dispose of official agency 
business other than in accordance with this part.



Sec. 261b.4  Meetings open to public observation.

    (a) Except as provided in Sec. 261b.5, every portion of every 
meeting of the agency shall be open to public observation.
    (b) Copies of staff documents considered in connection with agency 
discussion of agenda items for a meeting that is open to public 
observation shall be made available for distribution to members of the 
public attending the meeting, in accordance with the provisions of 12 
CFR part 261.
    (c) The agency will maintain a complete electronic recording 
adequate to record fully the proceedings of each meeting or portion of a 
meeting open to public observation. Cassettes will be available for 
listening in the Freedom of Information Office, and copies may be 
ordered for $5 per cassette by telephoning or by writing Freedom of 
Information Office, Board of Governors of the Federal Reserve System, 
Washington, DC 20551.
    (d) The agency will maintain mailing lists of names and addresses of 
all persons who wish to receive copies of agency announcements of 
meetings open to public observation. Requests for announcements may be 
made by

[[Page 259]]

telephoning or by writing Freedom of Information Office, Board of 
Governors of the Federal Reserve System, Washington, DC 20551.

[44 FR 11750, Mar. 2, 1979]



Sec. 261b.5  Exemptions.

    (a) Except in a case where the agency finds that the public interest 
requires otherwise, the agency may close a meeting or a portion or 
portions of a meeting under the procedures specified in Sec. 261b.7 or 
Sec. 261b.8 of this part, and withhold information under the provisions 
of Sec. Sec. 261b.6, 261b.7, 261b.8, or 261b.11 of this part, where the 
agency properly determines that such meeting or portion or portions of 
its meeting or the disclosure of such information is likely to:
    (1) Disclose matters that are (i) specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interests of national defense or foreign policy, and (ii) in fact 
properly classified pursuant to such Executive order;
    (2) Relate solely to internal personnel rules and practices;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than section 552 of title 5 of the United States Code), 
provided that such statute (i) requires that the matters be withheld 
from the public in such a manner as to leave no discretion on the issue, 
or (ii) establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring 
any person;
    (6) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would--
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by a Federal agency conducting a 
lawful national security intelligence investigation, confidential 
information furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of the Board or other Federal agency responsible for the regulation 
or supervision of financial institutions;
    (9) Disclose information the premature disclosure of which would--
    (i) Be likely to (A) lead to significant speculation in currencies, 
securities, or commodities, or (B) significantly endanger the stability 
of any financial institution; or
    (ii) Be likely to significantly frustrate implementation of a 
proposed action, except that paragraph (a)(9)(ii) of this section shall 
not apply in any instance where the Board has already disclosed to the 
public the content or nature of its proposed action, or where the Board 
is required by law to make such disclosure on its own initiative prior 
to taking final action on such proposal; or
    (10) Specifically concern the issuance of a subpoena, participation 
in a civil action or proceeding, an action in a foreign court or 
international tribunal, or an arbitration, or the initiation, conduct, 
or disposition of a particular case of formal agency adjudication 
pursuant to the procedures in section 554 of title 5 of the United 
States Code or otherwise involving a determination on the record after 
opportunity for a hearing.

[[Page 260]]



Sec. 261b.6  Public announcement of meetings.

    (a) Except as otherwise provided by the Act, public announcement of 
meetings open to public observation and meetings to be partially or 
completely closed to public observation pursuant to Sec. 261b.8 of this 
part will be made at least one week in advance of the meeting. Except to 
the extent such information is determined to be exempt from disclosure 
under Sec. 261b.5 of this part, each such public announcement will 
state the time, place and subject matter of the meeting, whether it is 
to be open or closed to the public, and the name and phone number of the 
official designated to respond to requests for information about the 
meeting.
    (b) If a majority of the members of the agency determines by a 
recorded vote that agency business requires that a meeting covered by 
paragraph (a) of this section be called at a date earlier than that 
specified in paragraph (a) of this section, the agency will make a 
public announcement of the information specified in paragraph (a) of 
this section at the earliest practicable time.
    (c) Changes in the subject matter of a publicly announced meeting, 
or in the determination to open or close a publicly announced meeting or 
any portion of a publicly announced meeting to public observation, or in 
the time or place of a publicly announced meeting made in accordance 
with the procedures specified in Sec. 261b.9 of this part will be 
publicly announced at the earliest practicable time.
    (d) Public announcements required by this section will be posted at 
the Board's Public Affairs Office and Freedom of Information Office and 
may be made available by other means or at other locations as may be 
desirable.
    (e) Immediately following each public announcement required by this 
section, notice of the time, place and subject matter of a meeting, 
whether the meeting is open or closed, any change in one of the 
preceding announcements and the name and telephone number of the 
official designated by the Board to respond to requests about the 
meeting, shall also be submitted for publication in the Federal 
Register.



Sec. 261b.7  Meetings closed to public observation under expedited
procedures.

    (a) Since the Board and the Committee qualifies for the use of 
expedited procedures under subsection (d)(4) of the Act, meetings or 
portions thereof exempt under paragraph (a)(4), (a)(8), (a)(9)(i) or 
(a)(10) of Sec. 261b.5 of this part, will be closed to public 
observation under the expedited procedures of this section. Following 
are examples of types of items that, absent compelling contrary 
circumstances, will qualify for these exemptions: Matters relating to a 
specific bank or bank holding company, such as bank branches or mergers, 
bank holding company formations, or acquisition of an additional bank or 
acquisition or de novo undertaking of a permissible nonbanking activity; 
matters relating to a specific savings and loan holding company or its 
subsidiaries, such as acquisitions, reorganizations, savings and loan 
holding company formations, conversions, or acquisition or de novo 
undertaking of a permissible activity; bank regulatory matters, such as 
applications for membership, issuance of capital notes and investment in 
bank premises; foreign banking matters; bank supervisory and enforcement 
matters, such as cease-and-desist and officer removal proceedings; 
monetary policy matters, such as discount rates, use of the discount 
window, changes in the limitations on payment of interest on time and 
savings accounts, and changes in reserve requirements or margin 
regulations.
    (b) At the beginning of each meeting, a portion or portions of which 
is closed to public observation under expedited procedures pursuant to 
this section, a recorded vote of the members present will be taken to 
determine whether a majority of the members of the agency votes to close 
such meeting of portions of such meeting to public observation.
    (c) A copy of the vote, reflecting the vote of each member, and 
except to the extent such information is determined to be exempt from 
disclosure under Sec. 261b.5, a public announcement of the time, place 
and subject matter of the meeting or each closed portion thereof, will 
be made available at the earliest practicable time at the Board's Public

[[Page 261]]

Affairs Office and Freedom of Information Office.

[42 FR 13297, Mar. 10, 1977, as amended at 43 FR 34481, Aug. 4, 1978; 76 
FR 56601, Sept. 13, 2011]



Sec. 261b.8  Meetings closed to public observation under regular
procedures.

    (a) A meeting or a portion of a meeting will be closed to public 
observation under regular procedures, or information as to such meeting 
or portion of a meeting will be withheld only by recorded vote of a 
majority of the members of the agency when it is determined that the 
meeting or the portion of the meeting or the withholding of information 
qualifies for exemption under Sec. 261b.5. Votes by proxy are not 
allowed.
    (b) Except as provided in subsection (c) of this section, a separate 
vote of the members of the agency will be taken with respect to the 
closing or the withholding of information as to each meeting or portion 
thereof which is proposed to be closed to public observation or with 
respect to which information is proposed to be withheld pursuant to this 
section.
    (c) A single vote may be taken with respect to a series of meetings, 
a portion or portions of which are proposed to be closed to public 
observation or with respect to any information concerning such series of 
meetings proposed to be withheld, so long as each meeting or portion 
thereof in such series involves the same particular matters and is 
scheduled to be held no more than thirty days after the initial meeting 
in such series.
    (d) Whenever any person's interests may be directly affected by a 
portion of a meeting for any of the reasons referred to in exemption 
(a)(5), (a)(6) or (a)(7) of Sec. 261b.5 of this part, such person may 
request in writing to the Secretary of the Board that such portion of 
the meeting be closed to public observation. The Secretary, or in his or 
her absence, the Acting Secretary of the Board, will transmit the 
request to the members and upon the request of any one of them a 
recorded vote will be taken whether to close such meeting to public 
observation.
    (e) Within one day of any vote taken pursuant to paragraphs (a) 
through (d) of this section, the agency will make publicly available at 
the Board's Public Affairs Office and Freedom of Information Office a 
written copy of such vote reflecting the vote of each member on the 
question. If a meeting or a portion of a meeting is to be closed to 
public observation, the agency, within one day of the vote taken 
pursuant to paragraphs (a) through (d) of this section, will make 
publicly available at the Board's Public Affairs Office and Freedom of 
Information Office a full, written explanation of its action closing the 
meeting or portion of the meeting together with a list of all persons 
expected to attend the meeting and their affiliation, except to the 
extent such information is determined by the agency to be exempt from 
disclosure under subsection (c) of the Act and Sec. 261b.5 of this 
part.
    (f) Any person may request in writing to the Secretary of the Board 
that an announced closed meeting, or portion of the meeting, be held 
open to public observation. The Secretary, or in his or her absence, the 
Acting Secretary of the Board, will transmit the request to the members 
of the Board and upon the request of any member a recorded vote will be 
taken whether to open such meeting to public observation.

[42 FR 13297, Mar. 10, 1977, as amended at 44 FR 11750, Mar. 2, 1979]



Sec. 261b.9  Changes with respect to publicly announced meeting.

    The subject matter of a meeting or the determination to open or 
close a meeting or a portion of a meeting to public observation may be 
changed following public announcement under Sec. 261b.6 only if a 
majority of the members of the agency determines by a recorded vote that 
agency business so requires and that no earlier announcement of the 
change was possible. Public announcement of such change and the vote of 
each member upon such change will be made pursuant to Sec. 261b.6(c). 
Changes in time, including postponements and cancellations of a publicly 
announced meeting or portion of a meeting or changes in the place of a 
publicly announced meeting will be publicly announced pursuant to

[[Page 262]]

Sec. 261b.6(c) by the Secretary of the Board or, in the Secretary's 
absence, the Acting Secretary of the Board.



Sec. 261b.10  Certification of General Counsel.

    Before every meeting or portion of a meeting closed to public 
observation under Sec. 261b.7 or 261b.8 of this part, the General 
Counsel, or in the General Counsel's absence, the Acting General 
Counsel, shall publicly certify whether or not in his or her opinion the 
meeting may be closed to public observation and shall state each 
relevant exemptive provision. A copy of such certification, together 
with a statement from the presiding officer of the meeting setting forth 
the time and place of the meeting and the persons present, will be 
retained for the time prescribed in Sec. 261b.11(d).



Sec. 261b.11  Transcripts, recordings, and minutes.

    (a) The agency will maintain a complete transcript or electronic 
recording or transcription thereof adequate to record fully the 
proceedings of each meeting or portion of a meeting closed to public 
observation pursuant to exemption (a)(1), (a)(2), (a)(3), (a)(4), 
(a)(5), (a)(6), (a)(7) or (a)(9)(ii) of Sec. 261b.5 of this part. 
Transcriptions of recordings will disclose the identity of each speaker.
    (b) The agency will maintain either such a transcript, recording or 
transcription thereof, or a set of minutes that will fully and clearly 
describe all matters discussed and provide a full and accurate summary 
of any actions taken and the reasons therefor, including a description 
of each of the views expressed on any item and the record of any roll 
call vote (reflecting the vote of each member on the question), for 
meetings or portions of meetings closed to public observation pursuant 
to exemptions (a)(8), (a)(9)(A) or (a)(10) of Sec. 261b.5 of this part. 
The minutes will identify all documents considered in connection with 
any action taken.
    (c) Transcripts, recordings or transcriptions thereof, or minutes 
will promptly be made available to the public in the Freedom of 
Information Office except for such item or items of such discussion or 
testimony as may be determined to contain information that may be 
withheld under subsection (c) of the Act and Sec. 261b.5 of this part.
    (d) A complete verbatim copy of the transcript, a complete copy of 
the minutes, or a complete electronic recording or verbatim copy of a 
transcription thereof of each meeting or portion of a meeting closed to 
public observation will be maintained for a period of at least two years 
or one year after the conclusion of any agency proceeding with respect 
to which the meeting or portion thereof was held, whichever occurs 
later.



Sec. 261b.12  Procedures for inspection and obtaining copies of 
transcriptions and minutes.

    (a) Any person may inspect or copy a transcript, a recording or 
transcription of a recording, or minutes described in Sec. 261b.11(c) 
of this part.
    (b) Requests for copies of transcripts, recordings or transcriptions 
of recordings, or minutes described in Sec. 261b.11(c) of this part 
shall specify the meeting or the portion of meeting desired and shall be 
submitted in writing to the Secretary of the Board, Board of Governors 
of the Federal Reserve System, Washington, DC 20551. Copies of documents 
identified in minutes may be made available to the public upon request 
under the provisions of 12 CFR part 261 (Rules Regarding Availability of 
Information).



Sec. 261b.13  Fees.

    (a) Copies of transcripts, recordings or transcriptions of 
recordings, or minutes requested pursuant to section Sec. 261b.12(b) of 
this part will be provided at the cost of 10[cent] per standard page for 
photocopying or at a cost not to exceed the actual cost of printing, 
typing, or otherwise preparing such copies.
    (b) Documents may be furnished without charge where total charges 
are less than $2.



PART 262_RULES OF PROCEDURE--Table of Contents



Sec.
262.1 Basis and scope.
262.2 Procedure for regulations.
262.3 Applications.
262.4 Adjudication with formal hearing.
262.5 Appearance and practice.
262.6 Forms.

[[Page 263]]

262.7-262.24 [Reserved]
262.25 Policy statement regarding notice of applications; timeliness of 
          comments; informal meetings.

    Authority: 5 U.S.C. 552, 12 U.S.C. 321, 1467a, 1828(c), and 1842.

    Source: 38 FR 6807, Mar. 13, 1973, unless otherwise noted.



Sec. 262.1  Basis and scope.

    This part is issued pursuant to section 552 of title 5 of the United 
States Code, which requires that every agency shall publish in the 
Federal Register statements of the general course and method by which 
its functions are channeled and determined, rules of procedure, and 
descriptions of forms available or the places at which forms may be 
obtained.



Sec. 262.2  Procedure for regulations.

    (a) Notice. Notices of proposed regulations of the Board of 
Governors of the Federal Reserve System (the ``Board'') or amendments 
thereto are published in the Federal Register, except as specified in 
paragraph (e) of this section or otherwise excepted by law. Such notices 
include a statement of the terms of the proposed regulations or 
amendments and a description of the subjects and issues involved; but 
the giving of such notices does not necessarily indicate the Board's 
final approval of any feature of any such proposal. The notices also 
include a reference to the authority for the proposed regulations or 
amendments and a statement of the time, place, and nature of public 
participation.
    (b) Public participation. The usual method of public submission of 
data, views, or arguments is in writing. It is ordinarily preferable 
that they be sent to the Secretary of the Board, Washington, DC 20551, 
with copies to the appropriate Federal Reserve Bank. The locations of 
the 12 Federal Reserve Banks and the boundaries of the Federal Reserve 
districts are shown in the appendix to the Board's rules of 
organization. Such material will be made available for inspection and 
copying upon request, except as provided in Sec. 261.6(b) of this 
chapter regarding availability of information.
    (c) Preparation of draft and action by Board. In the light of 
consideration of all relevant matter presented or ascertained, the 
appropriate division of the Board's staff, in collaboration with other 
divisions, prepares drafts of proposed regulations or amendments, and 
the staff submits them to the Board. The Board takes such action as it 
deems appropriate in the public interest. Any other documents that may 
be necessary to carry out any decision by the Board in the matter are 
usually prepared by the Legal Division, in collaboration with the other 
divisions of the staff.
    (d) Effective dates. Any substantive regulation or amendment thereto 
issued by the Board is published not less than 30 days prior to the 
effective date thereof, except as specified in paragraph (e) of this 
section or as otherwise excepted by law.
    (e) Exceptions as to notice or effective date. In certain 
situations, notice and public participation with respect to proposed 
regulations may be impracticable, unnecessary, contrary to the public 
interest, or otherwise not required in the public interest, or there may 
be reason and good cause in the public interest why the effective date 
should not be deferred for 30 days. The reason or reasons in such cases 
usually are that such notice, public participation, or deferment of 
effective date would prevent the action from becoming effective as 
promptly as necessary in the public interest, would permit speculators 
or others to reap unfair profits or to interfere with the Board's 
actions taken with a view to accommodating commerce and business and 
with regard to their bearing upon the general credit situation of the 
country, would provoke other consequences contrary to the public 
interest, would unreasonably interfere with the Board's necessary 
functions with respect to management or personnel, would not aid the 
persons affected, or would otherwise serve no useful purpose. The 
following may be mentioned as some examples of situations in which 
advance notice or deferred effective date, or both, will ordinarily be 
omitted in the public interest: The review and determination of discount 
rates established by Federal Reserve Banks, and changes

[[Page 264]]

in general requirements regarding reserves of member banks, maximum 
interest rates on time and savings deposits, or credit for purchasing or 
carrying securities.

[38 FR 6807, Mar. 13, 1973, as amended at 54 FR 33183, Aug. 14, 1989]



Sec. 262.3  Applications.

    (a) Forms. Any application, request, or petition (hereafter referred 
to as ``application'') for the approval, authority, determination, or 
permission of the Board with respect to any action for which such 
approval, authority, determination, or permission is required by law or 
regulation of the Board (including actions authorized to be taken by a 
Federal Reserve Bank or others on behalf of the Board pursuant to 
authority delegated under Part 265 of this chapter) shall be submitted 
in accordance with the pertinent form, if any, prescribed by the Board. 
Copies of any such form and details regarding information to be included 
therein may be obtained from any Federal Reserve Bank. Any application 
for which no form is prescribed should be signed by the person making 
the application or by his duly authorized agent, should state the facts 
involved, the action requested, and the applicant's interest in the 
matter, and should indicate the reasons why the application should be 
granted. Applications for access to, or copying of, records of the Board 
should be submitted as provided in Sec. 261.9(a) of this chapter.
    (b) Notice of applications. (1)(i) In the case of applications,
    (A) By a State member bank for the establishment of a domestic 
branch or other facility that would be authorized to receive deposits,
    (B) To become a bank holding company (except as provided in Sec. 
225.15 of this chapter),
    (C) By a bank holding company to acquire ownership or control of 
shares or assets of a bank, or to merge or consolidate with any other 
bank holding company,
    (D) To become a savings and loan holding company (except as provided 
in Sec. 238.14 of this chapter), and
    (E) By a savings and loan holding company to acquire ownership or 
control of shares or assets of a savings association, or to merge or 
consolidate with any other savings and loan holding company, the 
applicant shall cause to be published a notice in the form prescribed by 
the Board.
    (ii) The notice shall be placed in the classified advertising legal 
notices section of the newspaper, and must provide an opportunity for 
the public to give written comment on the application to the appropriate 
Federal Reserve Bank for the period specified in Regulation H (12 CFR 
part 208) in the case of applications specified in Sec. 
262.3(b)(1)(i)(A), and for at least thirty days after the date of 
publication in the case of applications specified in Sec. 
262.3(b)(1)(i)(B) and (C). Within 7 days of publication, the applicant 
shall submit its application to the appropriate Reserve Bank for 
acceptance along with a copy of the notice. If the Reserve Bank has not 
accepted the application as complete within ninety days of the date of 
publication of the notice, the applicant may be required to republish 
notice of the application. Such notice shall be published in a newspaper 
of general circulation in--
    (A) [Reserved]
    (B) The community or communities in which the head office of the 
bank and the proposed branch or other facility (other than an electronic 
funds transfer facility) are located in the case of an application for 
the establishment of a domestic branch or other facility that would be 
authorized to receive deposits, other than an application incidental to 
an application by a bank for merger, consolidation, or acquisition of 
assets or assumption of liabilities,
    (C) The community or communities in which the head office of the 
bank, the office to be closed, and the office to be opened are located 
in the case of an application for the relocation of a domestic branch 
office,
    (D) The community or communities in which the head office of each of 
the banks to be party to the merger, consolidation, or acquisition of 
assets or assumption of liabilities are located in the case of an 
application by a bank for merger, consolidation, or acquisition of 
assets or assumption of liabilities,
    (E) The community or communities in which the head offices of the 
largest

[[Page 265]]

subsidiary bank, if any, or an applicant and of each bank, shares of 
which are to be directly or indirectly acquired, are located in the case 
of applications under section 3 of the Bank Holding Company Act, or
    (F) The community or communities in which the head offices of the 
largest subsidiary savings association, if any, or an applicant and of 
each savings association, shares of which are to be directly or 
indirectly acquired, are located in the case of applications under 
section 10 of the Home Owners' Loan Act.
    (2) In addition to the foregoing notice, an applicant, in the case 
of an application to relocate a domestic branch office or other facility 
that would be authorized to receive deposits, shall post in a 
conspicuous public place in the lobby of the office to be closed a 
notice containing the information specified in Sec. 262.3(b)(1). Such 
notice should be posted on the date of the notice required by Sec. 
262.3(b)(1).
    (3) In the case of an application for a merger, consolidation, or 
acquisition of assets or assumption of liabilities, if the acquiring, 
assuming, or resulting bank is to be a State member bank, the applicant 
shall cause to be published notice in the form prescribed by the Board. 
The notice shall be published in a newspaper of general circulation in 
the community or communities in which the head office of each of the 
banks to be a party to the merger, consolidation, or acquisition of 
assets or assumption of liabilities is located. The notice shall be 
published on at least three occasions at appropriate intervals. The last 
publication of the notice shall appear at least thirty days after the 
first publication. The notice must provide an opportunity for the public 
to give written comment on the application to the appropriate Federal 
Reserve Bank for at least thirty days after the date of the first 
publication of the notice. Within seven days of publication of notice 
for the first time, the applicant shall submit its application to the 
appropriate Reserve Bank for acceptance, along with a copy of the 
notice. If the Reserve Bank has not accepted the application as complete 
within ninety days of the date of the first publication of the notice, 
the applicant may be required to republish notice of the application.
    (c) Filing of applications. Any application should be sent to the 
Federal Reserve Bank of the district in which the head office of the 
parent banking organization is located, except as otherwise specified on 
application forms, and that Bank will forward it to the Board when 
appropriate; however, in the case of foreign banking organization, as 
defined in Sec. 211.23(a)(2) of this chapter, applications shall be 
sent to the Federal Reserve Bank of the district in which the operations 
of the organization's subsidiary banks are principally conducted. In the 
case of a foreign banking organization that is not a bank holding 
company but that has one or more branches, agencies, or commercial 
lending companies in any State of the United States or the District of 
Columbia, applications shall be sent to the Federal Reserve Bank of the 
district in which the organization's banking assets are the largest. 
Applications of a member bank subsidiary, however, should be filed with 
the Reserve Bank of the district in which the member bank is located.
    (d) Analysis by staff. In every case, the Reserve Bank makes such 
investigation as may be necessary, and, except when acting pursuant to 
delegated authority, reports the relevant facts, with its 
recommendation, to the Board. In the light of consideration of all 
relevant matter presented or ascertained, the Board's staff prepares and 
submits to the Board comments on the subject.
    (e) Submission of comments and requests for hearing. The Board is 
only required to consider a comment or a request for a hearing with 
respect to an application or notice if it is in writing and received by 
the Secretary of the Board or the appropriate Federal Reserve Bank on or 
before the latest date prescribed in any notice with respect to the 
application or notice, or where no such date is prescribed, on or before 
the 30th day after the date notice is first published. Similarly, the 
Board will consider comments on an application from the Attorney General 
or a banking supervisory authority to which notification of receipt of 
an application has been given, only if such comment is received by the 
Secretary

[[Page 266]]

of the Board within 30 days of the date of the letter giving such 
notification. Any comment on an application or notice that requests a 
hearing must include a statement of why a written presentation would not 
suffice in lieu of a hearing, identifying specifically any questions of 
fact that are in dispute and summarizing the evidence that would be 
presented at a hearing. In every case where a timely comment or request 
for hearing is received as provided herein, a copy of such comment or 
request shall be forwarded promptly to the applicant for its response. 
The Board will consider the applicant's response only if it is in 
writing and sent to the Secretary of the Board on or before eight 
business days after the date of the letter by which it is forwarded to 
the applicant. At the same time it transmits its response to the Board, 
the applicant should transmit a copy of its response to the person or 
supervisory authority making such comment or requesting a hearing. 
Notwithstanding the foregoing, the Board may, in its sole discretion and 
without notifying the parties, take into consideration the substance of 
comments with respect to an application, (but not requests for hearing) 
that are not received within the time periods provided herein.
    (f) Action on applications. The Board takes such action as it deems 
appropriate in the public interest. Such documents as may be necessary 
to carry out any decision by the Board are prepared by the Board's 
staff. With respect to actions taken by a Federal Reserve Bank on behalf 
of the Board under delegated authority, statements and necessary 
documents are prepared by the staff of such Federal Reserve Bank.
    (g) Notice of action. Prompt notice is given to the applicant of the 
granting or denial in whole or in part of any application. In the case 
of a denial, except in affirming a prior denial or where the denial is 
self-explanatory, such notice is accompanied by a simple statement of 
the grounds for such action.
    (h) Action at Board's initiative. When the Board, without receiving 
an application, takes action with respect to any matter as to which 
opportunity for hearing is not required by statute or Board regulation, 
similar procedure is followed, including investigations, reports, and 
recommendations by the Board's staff and by the Reserve Banks, where 
appropriate.
    (i) General procedures for bank holding company, savings and loan 
holding company, and merger applications. In addition to procedures 
applicable under other provisions of this part, the following procedures 
are applicable in connection with the Board's consideration of 
applications under sections 3 and 4 of the Bank Holding Company Act of 
1956 (12 U.S.C. 1842 and 1843), hereafter referred to as ``section 3 
applications'' or ``section 4 applications,'' applications under section 
10(c), (e), and (o) of the Home Owners' Loan Act (12 U.S.C. 1467a), 
hereafter referred to as ``section 10 applications,'' and of 
applications under section 18(c) of the Federal Deposit Insurance Act 
(12 U.S.C. 1823), hereafter called ``merger applications.'' Except as 
otherwise indicated, the following procedures apply to all such 
applications.
    (1) The Board issues each week a list that identifies section 3, 
section 4, section 10, and merger applications received and acted upon 
during the preceding week by the Board or the Reserve Banks pursuant to 
delegated authority. Notice of receipt of all section 3 section 4(c)(8), 
and section 10 applications acted on by the Board is published in the 
Federal Register.
    (2) If a hearing is required by law or if the Board determines that 
a formal hearing for the purpose of taking evidence is desirable, the 
Board issues an order for such a hearing, and a notice thereof is 
published in the Federal Register. Any such formal hearing is conducted 
by an administrative law judge in accordance with subparts A and B of 
the Board's Rules of Practice for Hearings (part 263 of this chapter).
    (3) In any case in which a formal hearing is not ordered by the 
Board, the Board may afford the applicant and other properly interested 
persons (including Governmental agencies) an opportunity to present 
views orally before the Board or its designated representative. Unless 
otherwise ordered

[[Page 267]]

by the Board, any such oral presentation is public and notice of such 
public proceeding is published in the Federal Register.
    (4) Each action taken by the Board on an application is embodied in 
an order that indicates the votes of members of the Board. The order 
either contains reasons for the Board's action (i.e., an expanded order) 
or is accompanied by a statement of the reasons for the Board's action. 
Both the order and any accompanying statement are released to the press. 
Each order accompanied by a statement and any order of general interest, 
together with a list of other orders, are published in the Federal 
Reserve Bulletin. Action by a Reserve Bank under delegated authority as 
provided for under part 265 of this chapter is reflected in a letter of 
notification to the applicant.
    (5) Unless the Board shall otherwise direct, each section 3, section 
4, section 10, and merger application is made available for inspection 
by the public except for portions thereof as to which the Board 
determines that nondisclosure is warranted under section 552(b) of title 
5 of the United States Code.
    (j) Special procedures for certain applications. The following types 
of applications require procedures exclusive of, or in addition to, 
those described in paragraphs (i)(1) through (5) of this section.
    (1) Special rules pertaining to section 3 and merger applications 
follow:
    (i) Each order of the Board and each letter of notification by a 
Reserve Bank acting pursuant to delegated authority approving a section 
3 application includes, pursuant to the Act approved July 1, 1966 (12 
U.S.C. 1849(b)), a requirement that the transaction approved shall not 
be consummated before the 30th calendar day following the date of such 
order.
    (ii) Each order of the Board approving a merger application 
includes, pursuant to the Act approved February 21, 1966 (12 U.S.C. 
1828(c)(6)), a requirement that the transaction approved shall not be 
consummated before the 30th calendar day following the date of such 
order, except as the Board may otherwise determine pursuant to emergency 
situations as to which the Act permits consummation at earlier dates.
    (iii) Each order or each letter of notification approving an 
application also includes, as a condition of approval, a requirement 
that the transaction approved shall be consummated within 3 months and, 
in the case of acquisition by a holding company of stock of a newly 
organized bank, a requirement that such bank shall be opened for 
business within 6 months, but such periods may be extended for good 
cause by the Board (or by the appropriate Federal Reserve Bank where 
authority to grant such extensions is delegated to the Reserve Bank).
    (2) For special rules governing procedures for section 4 
applications, refer to Sec. 225.23 of this chapter.
    (3) Special rules pertaining to applications filed pursuant to 
section 10(e) and (o) of HOLA follow:
    (i) Each order or each letter of notification approving an 
application also includes, as a condition of approval, a requirement 
that the transaction approved shall be consummated within 3 months and, 
in the case of acquisition by a holding company of stock of a newly 
organized savings association, a requirement that such savings 
association shall be opened for business within 6 months, but such 
periods may be extended for good cause by the Board (or by the 
appropriate Federal Reserve Bank where authority to grant such 
extensions is delegated to the Reserve Bank).
    (ii) [Reserved]
    (4) [Reserved]
    (5) For special rules governing procedures for section 4(c)(13) 
applications, refer to Sec. 225.4(f) of this chapter.
    (k) Reconsideration of certain Board actions. The Board may 
reconsider any action taken by it on an application upon receipt by the 
Secretary of the Board of a written request for reconsideration from any 
party to such application, on or before the 15th day after the effective 
date of the Board's action. Such request should specify the reasons why 
the Board should reconsider its action, and present relevant facts that 
for good cause shown, were not previously presented to the Board. Within 
10 days of receipt of such a request, the General Counsel, acting 
pursuant to delegated authority (12 CFR 265.2(b)(7)), shall determine 
whether or

[[Page 268]]

not the request for reconsideration should be granted, and shall notify 
all parties to the application orally by telephone of this determination 
within 10 days. Such notification will be confirmed promptly in writing. 
In the exercise of this authority, the General Counsel shall confer with 
the Directors of other interested Divisions of the Board or their 
designees. Notwithstanding the foregoing, the Board may, on its own 
motion if it deems reconsideration appropriate, elect to reconsider its 
action with respect to any application, and the parties to such 
application shall be notified by the Secretary of the Board of its 
election as provided above. If it is determined that the Board should 
reconsider its action with respect to an application, such action will 
be stayed and will not be final until the Board has acted on the 
application upon reconsideration. If appropriate, notice of 
reconsideration of an application will be published promptly in the 
Federal Register.
    (l) Waiver. The Board, or the officer or Reserve Bank authorized to 
approve an application, may waive or modify any procedural requirements 
for that application prescribed or cited in this section and may excuse 
any failure to comply with them upon a finding that immediate action on 
the application is necessary to prevent the probable failure of a bank 
or company or that an emergency exists requiring expeditious action.

(12 U.S.C. 1842(a), 1843, and 1844(b), 12 U.S.C. 1828(c), 321 and 
248(i))

[38 FR 6807, Mar. 13, 1973]

    Editorial Note: For Federal Register citations affecting Sec. 
262.3, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 262.4  Adjudication with formal hearing.

    In connection with adjudication with respect to which a formal 
hearing is required by law or is ordered by the Board, the procedure is 
set forth in part 263 of this chapter, entitled ``Rules of Practice for 
Formal Hearings.''



Sec. 262.5  Appearance and practice.

    Appearance and practice before the Board in all matters are governed 
by Sec. 263.3 of this chapter.



Sec. 262.6  Forms.

    Necessary forms to be used in connection with applications and other 
matters are available at the Federal Reserve Banks. A list of all such 
forms, which is reviewed and revised periodically, may be obtained from 
any Federal Reserve Bank.
    (a) This action is taken pursuant to and in accordance with the 
provisions of section 552 of title 5 of the United States Code.
    (b) The provisions of section 553 of title 5, United States Code, 
relating to notice and public participation and to deferred effective 
dates, are not followed in connection with the adoption of this action, 
because the rules involved are procedural in nature and accordingly do 
not constitute substantive rules subject to the requirements of such 
section.



Sec. Sec. 262.7-262.24  [Reserved]



Sec. 262.25  Policy statement regarding notice of applications;
timeliness of comments; informal meetings.

    (a) Notice of applications. A bank or company applying to the Board 
for a deposit-taking facility must first publish notice of its 
application in local newspapers. This requirement, found in Sec. 
262.3(b)(1) of the Board's Rules of Procedure covers applications under 
the Bank Holding Company Act, Bank Merger Act, and Home Owners' Loan 
Act, as well as applications for membership in the Federal Reserve 
System and for new branches of State member banks. Notices of these 
applications are published in newspapers of general circulation in the 
communities where the applicant intends to do business as well as in the 
community where the applicant's head office is located. These notices 
are important in calling the public's attention to an applicant's plans 
and giving the public a chance to comment on these plans. To improve the 
effectiveness of the notices, the Board has supplemented its notice 
procedures as follows.

[[Page 269]]

    (1) The Board has adopted standard forms of notice for use by 
applicants that will specify the exact date on which the comment period 
on the application ends, which may not be less than thirty calendar days 
from the date of publication of the notice. The newspaper forms also 
provide the name and telephone number of the Community Affairs Officer 
of the appropriate Reserve Bank as the person to call to obtain more 
information about submitting comments on an application. In general, the 
Community Affairs Officer will be available to answer questions of a 
general nature concerning the submission of comments and the processing 
of applications.
    (2) The Board also publishes notice of bank holding company 
applications for bank acquisitions (but not for bank mergers or 
branches) and savings and loan holding company applications for savings 
association acquisitions (but not for savings association mergers or 
branches) in the Federal Register after the application is received and 
the Community Affairs Officer can provide the exact date on which this 
comment period ends. (The Federal Register comment period will generally 
end after the date specified in the newspaper notice.)
    (3) In addition to the formal newspaper and Federal Register notices 
discussed above, each Reserve Bank publishes a weekly list of 
applications submitted to the Reserve Bank for which newspaper notices 
have been published. Any person or organization may arrange to have the 
list mailed to them regularly, or may request particular lists, by 
contacting the Reserve Bank's Community Affairs Officer. Each Reserve 
Bank's list includes only applications submitted to that particular 
Reserve Bank, and persons or groups should request lists from each 
Reserve Bank having jurisdiction over applications in which they may be 
interested. Since the lists are prepared as a courtesy by the Reserve 
Bank, and are not intended to replace any formal notice required by 
statute or regulation, the Reserve Banks and the Board do not assume 
responsibility for errors or omissions. In addition, the weekly lists 
prepared by Reserve Banks include certain applications by bank holding 
companies and savings and loan holding companies for nonbank and non-
depository institution acquisitions, respectively, filed with the 
Reserve Bank.
    (4) With respect to applications by bank holding companies and 
savings and loan holding companies to engage de novo in nonbank 
activities or make acquisitions of nonbank firms, the Board publishes 
notice of most of these applications in the Federal Register when the 
applications are filed. Notice of certain small acquisitions may be 
published in a newspaper of general circulation in the area(s) to be 
served. While applications for nonbanking activities are not covered by 
the provisions of the Community Reinvestment Act or the notice 
provisions of Sec. 262.3 of the Board's Rules of Procedure, the 
provisions of this Statement apply to such applications.
    (b) Timeliness of comments. (1) All comments must be actually 
received by the Board or the Reserve Bank on or before the last date of 
the comment period specified in the notice. Where more than one notice 
is published with respect to an application, comments must be received 
on or before the last date of the latest comment period. The Board's 
Rules allow it to disregard comments received after the comment period 
expires. In particular, Sec. 262.3(e) of the Board's Rules of Procedure 
states that the Board will not consider comments on an application that 
are not received on or before the expiration of the comment period. 
Thus, a commenter who fails to comment on an application within the 
specified comment period (or any extension) may be precluded from 
participating in the consideration of the application.
    (2) In cases where a commenter for good cause is unable to send its 
comment within the specified comment period, Sec. 265.2(a)(10) of the 
Board's Rules Regarding Delegation of Authority (12 CFR 265.2(a)(10)) 
allows the Secretary of the Board to grant requests for an extension of 
the period. Under this provision, upon receipt of a request received on 
or before the expiration of the comment period, the Secretary may grant 
a brief extension upon clear demonstration of hardship or other

[[Page 270]]

meritorious reason for seeking additional time.
    (c) Private meetings. When a timely protest to approval of an 
application is received, the Reserve Bank may arrange a meeting between 
the applicant and the protestant to clarify and narrow the issues, and 
to provide a forum for the resolution of differences between the 
protestant and the applicant. If the Reserve Bank decides that a private 
meeting would be appropriate, the Reserve Bank will arrange a private 
meeting soon after the receipt of a protest and the applicant's 
response, if any, to the protest. In scheduling the meeting, the Reserve 
Bank will consider convenience to the parties with respect to the time 
and place of the meeting. A decision to hold a private meeting will not 
preclude the Reserve Bank or the Board from holding a public meeting or 
other proceeding if it is deemed appropriate.
    (d) Public meetings. The Board's General Counsel (in consultation 
with the Reserve Bank and the directors of other interested divisions of 
the Board) may order that a public meeting or other proceeding be held 
if requested by the applicant or a protestant who files a timely 
protest, or if such a proceeding appears appropriate. In most instances, 
the determination to order a public meeting will be made after a private 
meeting has been held; however, where appropriate a public meeting may 
be convened immediately after receipt of the protest and the applicant's 
response, if any. Additional information may be requested prior to 
making a determination to convene a public meeting. In these cases, a 
determination will be made within ten days from the date all relevant 
information is received. The public meeting will be scheduled as soon as 
possible, but in no event, later than 30 days after the decision to hold 
the proceeding is made. The purpose of the public meeting will be to 
elicit information, to clarify factual issues related to the application 
and to provide an opportunity for interested individuals to provide 
testimony. The Board has adopted the following guidelines to be used for 
convening public meetings, although specific provisions may be altered 
by the General Counsel if circumstances warrant.
    (1) Requesting a public meeting. A meeting may be requested by a 
person or an organization objecting to the application during the 
comment period, and by the applicant during the period within which it 
must respond to comments. Such a request must be timely and in writing.
    (i) A protest does not have to be filed in a legal brief or other 
format in order for a public meeting to be granted. The Community 
Affairs Officer at the Reserve Bank will be available to assist any 
member of the public regarding the types of information generally 
included in protests; the format generally used by protestants; and any 
other specific questions about the procedures of the Federal Reserve 
System regarding protested applications.
    (ii) In general, a protest should identify the protestant, state the 
basis for objection to approval of the application, and provide 
available written evidence to support the objection. Objections to 
approval of an application must relate to the factors that the Board is 
authorized to consider in acting on an application. Generally, these 
factors relate to the financial and managerial resources of the 
companies and banks involved, the effects of the proposal on 
competition, and the convenience and needs of the communities to be 
served by the companies and banks involved. If a public meeting is 
requested, the protest should indicate that there are members of the 
public who wish to speak on the issues in a public forum.
    (iii) The protest will be transmitted by the Reserve Bank to the 
applicant, and the applicant will generally be allowed eight business 
days to respond in writing to the protest.
    (2) Arranging the public meeting. Public meetings will be arranged 
and presided over by a representative of the Federal Reserve System 
(``Presiding Officer''). In determining the time and place for the 
public meeting, such factors as convenience to the parties, the number 
of people expected to attend the meeting, access to public 
transportation and possible after-hour security problems will be taken 
into account.

[[Page 271]]

    (3) Conducting the public meeting. Prior to the meeting, all 
necessary steps will be taken to ensure that the meeting is conducted 
appropriately, including scheduling of witnesses, submission of written 
materials and other arrangements. In conducting the public meeting the 
Presiding Officer will have the authority and discretion to ensure that 
the meeting proceeds in a fair and orderly manner. Generally, the public 
meeting will consist of opening and closing remarks by the Presiding 
Officer, a presentation by the protestant and a presentation by the 
applicant. An official transcript will be made of the proceedings and 
entered into the record. The conclusion of the public meeting normally 
marks the close of the public portion of the record on the application.
    (4) Notification of Board decision on the application. After a 
decision is made on the application, and the applicant is notified of 
the decision, staff will notify the protestant by telephone. This 
notification will be confirmed promptly in writing. As set forth in 
Sec. 262.3(k) of the Board's Rules of Procedure (12 CFR 262.3(k)) or 
Sec. 265.3 of the Board's Rules Regarding Delegation of Authority (12 
CFR 265.3), a party to the application may request reconsideration of 
the Board's order, or review of the Reserve Bank's decision.

[49 FR 5603, Feb. 14, 1984, as amended at 57 FR 41642, Sept. 11, 1992; 
76 FR 56602, Sept. 13, 2011]



PART 263_RULES OF PRACTICE FOR HEARINGS--Table of Contents



            Subpart A_Uniform Rules of Practice and Procedure

Sec.
263.1 Scope.
263.2 Rules of construction.
263.3 Definitions.
263.4 Authority of the Board.
263.5 Authority of the administrative law judge.
263.6 Appearance and practice in adjudicatory proceedings.
263.7 Good faith certification.
263.8 Conflicts of interest.
263.9 Ex parte communications.
263.10 Filing of papers.
263.11 Service of papers.
263.12 Construction of time limits.
263.13 Change of time limits.
263.14 Witness fees and expenses.
263.15 Opportunity for informal settlement.
263.16 The Board's right to conduct examination.
263.17 Collateral attacks on adjudicatory proceeding.
263.18 Commencement of proceeding and contents of notice.
263.19 Answer.
263.20 Amended pleadings.
263.21 Failure to appear.
263.22 Consolidation and severance of actions.
263.23 Motions.
263.24 Scope of document discovery.
263.25 Request for document discovery from parties.
263.26 Document subpoenas to nonparties.
263.27 Deposition of witness unavailable for hearing.
263.28 Interlocutory review.
263.29 Summary disposition.
263.30 Partial summary disposition.
263.31 Scheduling and prehearing conferences.
263.32 Prehearing submissions.
263.33 Public hearings.
263.34 Hearing subpoenas.
263.35 Conduct of hearings.
263.36 Evidence.
263.37 Post-hearing filings.
263.38 Recommended decision and filing of record.
263.39 Exceptions to recommended decision.
263.40 Review by the Board.
263.41 Stays pending judicial review.

       Subpart B_Board Local Rules Supplementing the Uniform Rules

263.50 Purpose and scope.
263.51 Definitions.
263.52 Address for filing.
263.53 Discovery depositions.
263.54 Delegation to the Office of Financial Institution Adjudication.
263.55 Board as Presiding Officer.
263.56 Initial licensing proceedings.

 Subpart C_Rules and Procedures for Assessment and Collection of Civil 
                             Money Penalties

263.60 Scope.
263.61 Opportunity for informal proceeding.
263.62 Relevant considerations for assessment of civil penalty.
263.63 Assessment order.
263.64 Payment of civil penalty.
263.65 Civil penalty inflation adjustments.

Subpart D_Rules and Procedures Applicable to Suspension or Removal of an 
    Institution-Affiliated Party Where a Felony is Charged or Proven

263.70 Purpose and scope.

[[Page 272]]

263.71 Notice or order of suspension, removal, or prohibition.
263.72 Request for informal hearing.
263.73 Order for informal hearing.
263.74 Decision of the Board.

   Subpart E_Procedures for Issuance and Enforcement of Directives To 
                        Maintain Adequate Capital

263.80 Purpose and scope.
263.81 Definitions.
263.82 Establishment of minimum capital levels.
263.83 Issuance of capital directives.
263.84 Enforcement of directive.
263.85 Establishment of increased capital level for specific 
          institutions.

                   Subpart F_Practice Before the Board

263.90 Scope.
263.91 Censure, suspension or debarment.
263.92 Definitions.
263.93 Eligibility to practice.
263.94 Conduct warranting sanctions.
263.95 Initiation of disciplinary proceeding.
263.96 Conferences.
263.97 Proceedings under this subpart.
263.98 Effect of suspension, debarment or censure.
263.99 Petition for reinstatement.

 Subpart G_Rules Regarding Claims Under the Equal Access to Justice Act

263.100 Authority and scope.
263.101 Standards for awards.
263.102 Prevailing party.
263.103 Eligibility of applicants.
263.104 Application for awards.
263.105 Statement of net worth.
263.106 Measure of awards.
263.107 Statement of fees and expenses.
263.108 Responses to application.
263.109 Further proceedings.
263.110 Recommended decision.
263.111 Action by the Board.

 Subpart H_Issuance and Review of Orders Pursuant to Prompt Corrective 
         Action Provisions of the Federal Deposit Insurance Act

263.201 Scope.
263.202 Directives to take prompt regulatory action.
263.203 Procedures for reclassifying a state member bank based on 
          criteria other than capital.
263.204 Order to dismiss a director or senior executive officer.
263.205 Enforcement of directives.

Subpart I_Submission and Review of Safety and Soundness Compliance Plans 
   and Issuance of Orders To Correct Safety and Soundness Deficiencies

263.300 Scope.
263.301 Purpose.
263.302 Determination and notification of failure to meet safety and 
          soundness standard and request for compliance plan.
263.303 Filing of safety and soundness compliance plan.
263.304 Issuance of orders to correct deficiencies and to take or 
          refrain from taking other actions.
263.305 Enforcement of orders.

    Subpart J_Removal, Suspension, and Debarment of Accountants From 
                        Performing Audit Services

263.400 Scope.
263.401 Definitions.
263.402 Removal, suspension, or debarment.
263.403 Automatic removal, suspension, and debarment.
263.404 Notice of removal, suspension, or debarment.
263.405 Petition for reinstatement.

    Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 248, 324, 504, 505, 
1464, 1467, 1467a, 1468, 1817(j), 1818, 1820(k), 1828(c), 1829(e), 
1831o, 1831p-1, 1847(b), 1847(d), 1884(b), 1972(2)(F), 3105, 3107, 3108, 
3349, 3907, 3909, 4717; 15 U.S.C. 21, 78(l), 78o-4, 78o-5, 78u-2; and 28 
U.S.C. 2461 note.; 31 U.S.C. 5321; 42 U.S.C. 4012a.

    Source: 56 FR 38052, Aug. 9, 1991, unless otherwise noted.



            Subpart A_Uniform Rules of Practice and Procedure



Sec. 263.1  Scope.

    This subpart prescribes Uniform Rules of practice and procedure 
applicable to adjudicatory proceedings required to be conducted on the 
record after opportunity for hearing under the following statutory 
provisions:
    (a) Cease-and-desist proceedings under section 8(b) of the Federal 
Deposit Insurance Act (``FDIA'') (12 U.S.C. 1818(b));
    (b) Removal and prohibition proceedings under section 8(e) of the 
FDIA (12 U.S.C. 1818(e));
    (c) Change-in-control proceedings under section 7(j)(4) of the FDIA 
(12 U.S.C. 1817(j)(4)) to determine whether

[[Page 273]]

the Board of Governors of the Federal Reserve System (``Board'') should 
issue an order to approve or disapprove a person's proposed acquisition 
of a state member bank, bank holding company, or savings and loan 
holding company;
    (d) Proceedings under section 15C(c)(2) of the Securities Exchange 
Act of 1934 (``Exchange Act'') (15 U.S.C. 78o-5), to impose sanctions 
upon any government securities broker or dealer or upon any person 
associated or seeking to become associated with a government securities 
broker or dealer for which the Board is the appropriate agency;
    (e) Assessment of civil money penalties by the Board against 
institutions, institution-affiliated parties, and certain other persons 
for which the Board is the appropriate agency for any violation of:
    (1) Any provision of the Bank Holding Company Act of 1956, as 
amended (``BHC Act''), or any order or regulation issued thereunder, 
pursuant to 12 U.S.C. 1847(b) and (d);
    (2) Sections 19, 22, 23, 23A and 23B of the Federal Reserve Act 
(``FRA''), or any regulation or order issued thereunder and certain 
unsafe or unsound practices or breaches of fiduciary duty, pursuant to 
12 U.S.C. 504 and 505;
    (3) Section 9 of the FRA pursuant to 12 U.S.C. 324;
    (4) Section 106(b) of the Bank Holding Company Act Amendments of 
1970 and certain unsafe or unsound practices or breaches of fiduciary 
duty, pursuant to 12 U.S.C. 1972(2)(F);
    (5) Any provision of the Change in Bank Control Act of 1978, as 
amended, or any regulation or order issued thereunder and certain unsafe 
or unsound practices or breaches of fiduciary duty, pursuant to 12 
U.S.C. 1817(j)(16);
    (6) Any provision of the International Lending Supervision Act of 
1983 (``ILSA'') or any rule, regulation or order issued thereunder, 
pursuant to 12 U.S.C. 3909;
    (7) Any provision of the International Banking Act of 1978 (``IBA'') 
or any rule, regulation or order issued thereunder, pursuant to 12 
U.S.C. 3108;
    (8) Certain provisions of the Exchange Act, pursuant to section 21B 
of the Exchange Act (15 U.S.C. 78u-2);
    (9) Section 1120 of the Financial Institutions Reform, Recovery, and 
Enforcement Act of 1989 (12 U.S.C. 3349), or any order or regulation 
issued thereunder;
    (10) The terms of any final or temporary order issued under section 
8 of the FDIA or of any written agreement executed by the Board, the 
terms of any condition imposed in writing by the Board in connection 
with the grant of an application or request, and certain unsafe or 
unsound practices or breaches of fiduciary duty or law or regulation 
pursuant to 12 U.S.C. 1818(i)(2);
    (11) Any provision of law referenced in section 102(f) of the Flood 
Disaster Protection Act of 1973 (42 U.S.C. 4012a(f)) or any order or 
regulation issued thereunder;
    (12) Any provision of law referenced in 31 U.S.C. 5321 or any order 
or regulation issued thereunder;
    (13) Section 5 of the Home Owners' Loan Act (``HOLA'') or any 
regulation or order issued thereunder, pursuant to 12 U.S.C. 1464 (d), 
(s) and (v);
    (14) Section 9 of the HOLA or any regulation or order issued 
thereunder, pursuant to 12 U.S.C. 1467(d); and
    (15) Section 10 of the HOLA, pursuant to 12 U.S.C. 1467a (i) and 
(r);
    (f) Remedial action under section 102(g) of the Flood Disaster 
Protection Act of 1973 (42 U.S.C. 4012a(g));
    (g) Removal, prohibition, and civil monetary penalty proceedings 
under section 10(k) of the FDI Act (12 U.S.C. 1820(k)) for violations of 
the special post-employment restrictions imposed by that section; and
    (h) This subpart also applies to all other adjudications required by 
statute to be determined on the record after opportunity for an agency 
hearing, unless otherwise specifically provided for in the Local Rules.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20341, May 6, 1996; 70 
FR 69638, Nov. 17, 2005; 76 FR 56603, Sept. 13, 2011]



Sec. 263.2  Rules of construction.

    For purposes of this subpart:
    (a) Any term in the singular includes the plural, and the plural 
includes the singular, if such use would be appropriate;

[[Page 274]]

    (b) Any use of a masculine, feminine, or neuter gender encompasses 
all three, if such use would be appropriate;
    (c) The term counsel includes a non-attorney representative; and
    (d) Unless the context requires otherwise, a party's counsel of 
record, if any, may, on behalf of that party, take any action required 
to be taken by the party.



Sec. 263.3  Definitions.

    For purposes of this subpart, unless explicitly stated to the 
contrary:
    (a) Administrative law judge means one who presides at an 
administrative hearing under authority set forth at 5 U.S.C. 556.
    (b) Adjudicatory proceeding means a proceeding conducted pursuant to 
these rules and leading to the formulation of a final order other than a 
regulation.
    (c) Decisional employee means any member of the Board's or 
administrative law judge's staff who has not engaged in an investigative 
or prosecutorial role in a proceeding and who may assist the Agency or 
the administrative law judge, respectively, in preparing orders, 
recommended decisions, decisions, and other documents under the Uniform 
Rules.
    (d) Enforcement Counsel means any individual who files a notice of 
appearance as counsel on behalf of the Board in an adjudicatory 
proceeding.
    (e) Final order means an order issued by the Board with or without 
the consent of the affected institution or the institution-affiliated 
party, that has become final, without regard to the pendency of any 
petition for reconsideration or review.
    (f) Institution includes: (1) Any bank as that term is defined in 
section 3(a) of the FDIA (12 U.S.C. 1813(a));
    (2) Any bank holding company or any subsidiary (other than a bank) 
of a bank holding company as those terms are defined in the BHC Act (12 
U.S.C. 1841 et seq.);
    (3) Any organization operating under section 25 of the FRA (12 
U.S.C. 601 et seq.);
    (4) Any foreign bank or company to which section 8 of the IBA (12 
U.S.C. 3106), applies or any subsidiary (other than a bank) thereof;
    (5) Any Federal agency as that term is defined in section 1(b) of 
the IBA (12 U.S.C. 3101(5)); and
    (6) Any savings and loan holding company or any subsidiary (other 
than a savings association) of a savings and loan holding company as 
those terms are defined in the HOLA (12 U.S.C. 1461 et seq.).
    (g) Institution-affiliated party means any institution-affiliated 
party as that term is defined in section 3(u) of the FDIA (12 U.S.C. 
1813(u)).
    (h) Local Rules means those rules promulgated by the Board in this 
part other than subpart A.
    (i) OFIA means the Office of Financial Institution Adjudication, the 
executive body charged with overseeing the administration of 
administrative enforcement proceedings for the Board, the Office of 
Comptroller of the Currency (the OCC), the Federal Deposit Insurance 
Corporation (the FDIC), and the National Credit Union Administration 
(the NCUA).
    (j) Party means the Board and any person named as a party in any 
notice.
    (k) Person means an individual, sole proprietor, partnership, 
corporation, unincorporated association, trust, joint venture, pool, 
syndicate, agency or other entity or organization, including an 
institution as defined in paragraph (f) of this section.
    (l) Respondent means any party other than the Board.
    (m) Uniform Rules means those rules in subpart A of this part that 
are common to the Board, the OCC, the FDIC, and the NCUA.
    (n) Violation includes any action (alone or with another or others) 
for or toward causing, bringing about, participating in, counseling, or 
aiding or abetting a violation.

[56 FR 38052, Aug. 9, 1991, as amended at 76 FR 56603, Sept. 13, 2011]



Sec. 263.4  Authority of the Board.

    The Board may, at any time during the pendency of a proceeding, 
perform, direct the performance of, or waive performance of, any act 
which could be done or ordered by the administrative law judge.

[[Page 275]]



Sec. 263.5  Authority of the administrative law judge.

    (a) General rule. All proceedings governed by this part shall be 
conducted in accordance with the provisions of chapter 5 of title 5 of 
the United States Code. The administrative law judge shall have all 
powers necessary to conduct a proceeding in a fair and impartial manner 
and to avoid unnecessary delay.
    (b) Powers. The administrative law judge shall have all powers 
necessary to conduct the proceeding in accordance with paragraph (a) of 
this section, including the following powers:
    (1) To administer oaths and affirmations;
    (2) To issue subpoenas, subpoenas duces tecum, and protective 
orders, as authorized by this part, and to quash or modify any such 
subpoenas and orders;
    (3) To receive relevant evidence and to rule upon the admission of 
evidence and offers of proof;
    (4) To take or cause depositions to be taken as authorized by this 
subpart;
    (5) To regulate the course of the hearing and the conduct of the 
parties and their counsel;
    (6) To hold scheduling and/or pre-hearing conferences as set forth 
in Sec. 263.31;
    (7) To consider and rule upon all procedural and other motions 
appropriate in an adjudicatory proceeding, provided that only the Board 
shall have the power to grant any motion to dismiss the proceeding or to 
decide any other motion that results in a final determination of the 
merits of the proceeding;
    (8) To prepare and present to the Board a recommended decision as 
provided herein;
    (9) To recuse himself or herself by motion made by a party or on his 
or her own motion;
    (10) To establish time, place and manner limitations on the 
attendance of the public and the media for any public hearing; and
    (11) To do all other things necessary and appropriate to discharge 
the duties of a presiding officer.



Sec. 263.6  Appearance and practice in adjudicatory proceedings.

    (a) Appearance before the Board or an administrative law judge--(1) 
By attorneys. Any member in good standing of the bar of the highest 
court of any state, commonwealth, possession, territory of the United 
States, or the District of Columbia may represent others before the 
Board if such attorney is not currently suspended or debarred from 
practice before the Board.
    (2) By non-attorneys. An individual may appear on his or her own 
behalf; a member of a partnership may represent the partnership; a duly 
authorized officer, director, or employee of any government unit, 
agency, institution, corporation or authority may represent that unit, 
agency, institution, corporation or authority if such officer, director, 
or employee is not currently suspended or debarred from practice before 
the Board.
    (3) Notice of appearance. Any individual acting as counsel on behalf 
of a party, including the Board, shall file a notice of appearance with 
OFIA at or before the time that individual submits papers or otherwise 
appears on behalf of a party in the adjudicatory proceeding. The notice 
of appearance must include a written declaration that the individual is 
currently qualified as provided in paragraph (a)(1) or (a)(2) of this 
section and is authorized to represent the particular party. By filing a 
notice of appearance on behalf of a party in an adjudicatory proceeding, 
the counsel agrees and represents that he or she is authorized to accept 
service on behalf of the represented party and that, in the event of 
withdrawal from representation, he or she will, if required by the 
administrative law judge, continue to accept service until new counsel 
has filed a notice of appearance or until the represented party 
indicates that he or she will proceed on a pro se basis.
    (b) Sanctions. Dilatory, obstructionist, egregious, contemptuous or 
contumacious conduct at any phase of any adjudicatory proceeding may be 
grounds for exclusion or suspension of counsel from the proceeding.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20341, May 6, 1996]

[[Page 276]]



Sec. 263.7  Good faith certification.

    (a) General requirement. Every filing or submission of record 
following the issuance of a notice shall be signed by at least one 
counsel of record in his or her individual name and shall state that 
counsel's address and telephone number. A party who acts as his or her 
own counsel shall sign his or her individual name and state his or her 
address and telephone number on every filing or submission of record.
    (b) Effect of signature. (1) The signature of counsel or a party 
shall constitute a certification that: the counsel or party has read the 
filing or submission of record; to the best of his or her knowledge, 
information, and belief formed after reasonable inquiry, the filing or 
submission of record is well-grounded in fact and is warranted by 
existing law or a good faith argument for the extension, modification, 
or reversal of existing law; and the filing or submission of record is 
not made for any improper purpose, such as to harass or to cause 
unnecessary delay or needless increase in the cost of litigation.
    (2) If a filing or submission of record is not signed, the 
administrative law judge shall strike the filing or submission of 
record, unless it is signed promptly after the omission is called to the 
attention of the pleader or movant.
    (c) Effect of making oral motion or argument. The act of making any 
oral motion or oral argument by any counsel or party constitutes a 
certification that to the best of his or her knowledge, information, and 
belief formed after reasonable inquiry, his or her statement is well-
grounded in fact and is warranted by existing law or a good faith 
argument for the extension, modification, or reversal of existing law, 
and is not made for any improper purpose, such as to harass or to cause 
unnecessary delay or needless increase in the cost of litigation.



Sec. 263.8  Conflicts of interest.

    (a) Conflict of interest in representation. No person shall appear 
as counsel for another person in an adjudicatory proceeding if it 
reasonably appears that such representation may be materially limited by 
that counsel's responsibilities to a third person or by the counsel's 
own interests. The administrative law judge may take corrective measures 
at any stage of a proceeding to cure a conflict of interest in 
representation, including the issuance of an order limiting the scope of 
representation or disqualifying an individual from appearing in a 
representative capacity for the duration of the proceeding.
    (b) Certification and waiver. If any person appearing as counsel 
represents two or more parties to an adjudicatory proceeding or also 
represents a non-party on a matter relevant to an issue in the 
proceeding, counsel must certify in writing at the time of filing the 
notice of appearance required by Sec. 263.6(a):
    (1) That the counsel has personally and fully discussed the 
possibility of conflicts of interest with each such party and non-party; 
and
    (2) That each such party and non-party waives any right it might 
otherwise have had to assert any known conflicts of interest or to 
assert any non-material conflicts of interest during the course of the 
proceeding.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20342, May 6, 1996]



Sec. 263.9  Ex parte communications.

    (a) Definition--(1) Ex parte communication means any material oral 
or written communication relevant to the merits of an adjudicatory 
proceeding that was neither on the record nor on reasonable prior notice 
to all parties that takes place between:
    (i) An interested person outside the Board (including such person's 
counsel); and
    (ii) The administrative law judge handling that proceeding, a member 
of the Board, or a decisional employee.
    (2) Exception. A request for status of the proceeding does not 
constitute an ex parte communication.
    (b) Prohibition of ex parte communications. From the time the notice 
is issued by the Board until the date that the Board issues its final 
decision pursuant to Sec. 263.40(c):
    (1) No interested person outside the Federal Reserve System shall 
make or knowingly cause to be made an ex parte communication to a member 
of the

[[Page 277]]

Board, the administrative law judge, or a decisional employee; and
    (2) A member of the Board, administrative law judge, or decisional 
employee shall not make or knowingly cause to be made to any interested 
person outside the Federal Reserve System any ex parte communication.
    (c) Procedure upon occurrence of ex parte communication. If an ex 
parte communication is received by the administrative law judge, a 
member of the Board or any other person identified in paragraph (a) of 
this section, that person shall cause all such written communications 
(or, if the communication is oral, a memorandum stating the substance of 
the communication) to be placed on the record of the proceeding and 
served on all parties. All other parties to the proceeding shall have an 
opportunity, within ten days of receipt of service of the ex parte 
communication, to file responses thereto and to recommend any sanctions, 
in accordance with paragraph (d) of this section, that they believe to 
be appropriate under the circumstances.
    (d) Sanctions. Any party or his or her counsel who makes a 
prohibited ex parte communication, or who encourages or solicits another 
to make any such communication, may be subject to any appropriate 
sanction or sanctions imposed by the Board or the administrative law 
judge including, but not limited to, exclusion from the proceedings and 
an adverse ruling on the issue which is the subject of the prohibited 
communication.
    (e) Separation of functions. Except to the extent required for the 
disposition of ex parte matters as authorized by law, the administrative 
law judge may not consult a person or party on any matter relevant to 
the merits of the adjudication, unless on notice and opportunity for all 
parties to participate. An employee or agent engaged in the performance 
of investigative or prosecuting functions for the Board in a case may 
not, in that or a factually related case, participate or advise in the 
decision, recommended decision, or agency review of the recommended 
decision under Sec. 263.40, except as witness or counsel in public 
proceedings.

[56 FR 38052, Aug. 9, 1991, as amended at 59 FR 65245, Dec. 19, 1994]



Sec. 263.10  Filing of papers.

    (a) Filing. Any papers required to be filed, excluding documents 
produced in response to a discovery request pursuant to Sec. Sec. 
263.25 and 263.26, shall be filed with OFIA, except as otherwise 
provided.
    (b) Manner of filing. Unless otherwise specified by the Board or the 
administrative law judge, filing may be accomplished by:
    (1) Personal service;
    (2) Delivering the papers to a reliable commercial courier service, 
overnight delivery service, or to the U.S. Post Office for Express Mail 
delivery;
    (3) Mailing the papers by first class, registered, or certified 
mail; or
    (4) Transmission by electronic media, only if expressly authorized, 
and upon any conditions specified, by the Board or the administrative 
law judge. All papers filed by electronic media shall also concurrently 
be filed in accordance with paragraph (c) of this section.
    (c) Formal requirements as to papers filed--(1) Form. All papers 
filed must set forth the name, address, and telephone number of the 
counsel or party making the filing and must be accompanied by a 
certification setting forth when and how service has been made on all 
other parties. All papers filed must be double-spaced and printed or 
typewritten on 8 1/2 x 11 inch paper, and must be clear and legible.
    (2) Signature. All papers must be dated and signed as provided in 
Sec. 263.7.
    (3) Caption. All papers filed must include at the head thereof, or 
on a title page, the name of the Board and of the filing party, the 
title and docket number of the proceeding, and the subject of the 
particular paper.
    (4) Number of copies. Unless otherwise specified by the Board, or 
the administrative law judge, an original and one copy of all documents 
and papers shall be filed, except that only one copy of transcripts of 
testimony and exhibits shall be filed.



Sec. 263.11  Service of papers.

    (a) By the parties. Except as otherwise provided, a party filing 
papers shall serve a copy upon the counsel of record for all other 
parties to the proceeding so represented, and upon any party not so 
represented.

[[Page 278]]

    (b) Method of service. Except as provided in paragraphs (c)(2) and 
(d) of this section, a serving party shall use one or more of the 
following methods of service:
    (1) Personal service;
    (2) Delivering the papers to a reliable commercial courier service, 
overnight delivery service, or to the U.S. Post Office for Express Mail 
delivery;
    (3) Mailing the papers by first class, registered, or certified 
mail; or
    (4) Transmission by electronic media, only if the parties mutually 
agree. Any papers served by electronic media shall also concurrently be 
served in accordance with the requirements of Sec. 263.10(c).
    (c) By the Board or the administrative law judge. (1) All papers 
required to be served by the Board or the administrative law judge upon 
a party who has appeared in the proceeding in accordance with Sec. 
263.6, shall be served by any means specified in paragraph (b) of this 
section.
    (2) If a party has not appeared in the proceeding in accordance with 
Sec. 263.6, the Board or the administrative law judge shall make 
service by any of the following methods:
    (i) By personal service;
    (ii) If the person to be served is an individual, by delivery to a 
person of suitable age and discretion at the physical location where the 
individual resides or works;
    (iii) If the person to be served is a corporation or other 
association, by delivery to an officer, managing or general agent, or to 
any other agent authorized by appointment or by law to receive service 
and, if the agent is one authorized by statute to receive service and 
the statute so requires, by also mailing a copy to the party;
    (iv) By registered or certified mail addressed to the person's last 
known address; or
    (v) By any other method reasonably calculated to give actual notice.
    (d) Subpoenas. Service of a subpoena may be made:
    (1) By personal service;
    (2) If the person to be served is an individual, by delivery to a 
person of suitable age and discretion at the physical location where the 
individual resides or works;
    (3) By delivery to an agent, which, in the case of a corporation or 
other association, is delivery to an officer, managing or general agent, 
or to any other agent authorized by appointment or by law to receive 
service and, if the agent is one authorized by statute to receive 
service and the statute so requires, by also mailing a copy to the 
party;
    (4) By registered or certified mail addressed to the person's last 
known address; or
    (5) By any other method as is reasonably calculated to give actual 
notice.
    (e) Area of service. Service in any state, territory, possession of 
the United States, or the District of Columbia, on any person or company 
doing business in any state, territory, possession of the United States, 
or the District of Columbia, or on any person as otherwise provided by 
law, is effective without regard to the place where the hearing is held, 
provided that if service is made on a foreign bank in connection with an 
action or proceeding involving one or more of its branches or agencies 
located in any state, territory, possession of the United States, or the 
District of Columbia, service shall be made on at least one branch or 
agency so involved.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20342, May 6, 1996]



Sec. 263.12  Construction of time limits.

    (a) General rule. In computing any period of time prescribed by this 
subpart, the date of the act or event that commences the designated 
period of time is not included. The last day so computed is included 
unless it is a Saturday, Sunday, or Federal holiday. When the last day 
is a Saturday, Sunday, or Federal holiday, the period runs until the end 
of the next day that is not a Saturday, Sunday, or Federal holiday. 
Intermediate Saturdays, Sundays, and Federal holidays are included in 
the computation of time. However, when the time period within which an 
act is to be performed is ten days or less, not including any additional 
time allowed for in paragraph (c) of this section, intermediate 
Saturdays, Sundays, and Federal holidays are not included.
    (b) When papers are deemed to be filed or served. (1) Filing and 
service are deemed to be effective:

[[Page 279]]

    (i) In the case of personal service or same-day commercial courier 
delivery, upon actual service;
    (ii) In the case of overnight commercial delivery service, U.S. 
Express Mail delivery, or first class, registered, or certified mail, 
upon deposit in or delivery to an appropriate point of collection;
    (iii) In the case of transmission by electronic media, as specified 
by the authority receiving the filing, in the case of filing, and as 
agreed among the parties, in the case of service.
    (2) The effective filing and service dates specified in paragraph 
(b)(1) of this section may be modified by the Board or administrative 
law judge in the case of filing or by agreement of the parties in the 
case of service.
    (c) Calculation of time for service and filing of responsive papers. 
Whenever a time limit is measured by a prescribed period from the 
service of any notice or paper, the applicable time limits are 
calculated as follows:
    (1) If service is made by first class, registered, or certified 
mail, add three calendar days to the prescribed period;
    (2) If service is made by express mail or overnight delivery 
service, add one calendar day to the prescribed period; or
    (3) If service is made by electronic media transmission, add one 
calendar day to the prescribed period, unless otherwise determined by 
the Board or the administrative law judge in the case of filing, or by 
agreement among the parties in the case of service.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20342, May 6, 1996]



Sec. 263.13  Change of time limits.

    Except as otherwise provided by law, the administrative law judge 
may, for good cause shown, extend the time limits prescribed by the 
Uniform Rules or by any notice or order issued in the proceedings. After 
the referral of the case to the Board pursuant to Sec. 263.38, the 
Board may grant extensions of the time limits for good cause shown. 
Extensions may be granted at the motion of a party after notice and 
opportunity to respond is afforded all non-moving parties or sua sponte 
by the Board or the administrative law judge.



Sec. 263.14  Witness fees and expenses.

    Witnesses subpoenaed for testimony or depositions shall be paid the 
same fees for attendance and mileage as are paid in the United States 
district courts in proceedings in which the United States is a party, 
provided that, in the case of a discovery subpoena addressed to a party, 
no witness fees or mileage need be paid. Fees for witnesses shall be 
tendered in advance by the party requesting the subpoena, except that 
fees and mileage need not be tendered in advance where the Board is the 
party requesting the subpoena. The Board shall not be required to pay 
any fees to, or expenses of, any witness not subpoenaed by the Board.



Sec. 263.15  Opportunity for informal settlement.

    Any respondent may, at any time in the proceeding, unilaterally 
submit to Enforcement Counsel written offers or proposals for settlement 
of a proceeding, without prejudice to the rights of any of the parties. 
No such offer or proposal shall be made to any Board representative 
other than Enforcement Counsel. Submission of a written settlement offer 
does not provide a basis for adjourning or otherwise delaying all or any 
portion of a proceeding under this part. No settlement offer or 
proposal, or any subsequent negotiation or resolution, is admissible as 
evidence in any proceeding.



Sec. 263.16  The Board's right to conduct examination.

    Nothing contained in this subpart limits in any manner the right of 
the Board or any Federal Reserve Bank to conduct any examination, 
inspection, or visitation of any institution or institution-affiliated 
party, or the right of the Board or any Federal Reserve Bank to conduct 
or continue any form of investigation authorized by law.

[56 FR 38052, Aug. 9, 1991; 56 FR 60056, Nov. 27, 1991]



Sec. 263.17  Collateral attacks on adjudicatory proceeding.

    If an interlocutory appeal or collateral attack is brought in any 
court

[[Page 280]]

concerning all or any part of an adjudicatory proceeding, the challenged 
adjudicatory proceeding shall continue without regard to the pendency of 
that court proceeding. No default or other failure to act as directed in 
the adjudicatory proceeding within the times prescribed in this subpart 
shall be excused based on the pendency before any court of any 
interlocutory appeal or collateral attack.



Sec. 263.18  Commencement of proceeding and contents of notice.

    (a) Commencement of proceeding. (1)(i) Except for change-in-control 
proceedings under section 7(j)(4) of the FDIA (12 U.S.C. 1817(j)(4)), a 
proceeding governed by this subpart is commenced by issuance of a notice 
by the Board.
    (ii) The notice must be served by the Board upon the respondent and 
given to any other appropriate financial institution supervisory 
authority where required by law.
    (iii) The notice must be filed with OFIA.
    (2) Change-in-control proceedings under section 7(j)(4) of the FDIA 
(12 U.S.C. 1817(j)(4)) commence with the issuance of an order by the 
Board.
    (b) Contents of notice. The notice must set forth:
    (1) The legal authority for the proceeding and for the Board's 
jurisdiction over the proceeding;
    (2) A statement of the matters of fact or law showing that the Board 
is entitled to relief;
    (3) A proposed order or prayer for an order granting the requested 
relief;
    (4) The time, place, and nature of the hearing as required by law or 
regulation;
    (5) The time within which to file an answer as required by law or 
regulation;
    (6) The time within which to request a hearing as required by law or 
regulation; and
    (7) That the answer and/or request for a hearing shall be filed with 
OFIA.



Sec. 263.19  Answer.

    (a) When. Within 20 days of service of the notice, respondent shall 
file an answer as designated in the notice. In a civil money penalty 
proceeding, respondent shall also file a request for a hearing within 20 
days of service of the notice.
    (b) Content of answer. An answer must specifically respond to each 
paragraph or allegation of fact contained in the notice and must admit, 
deny, or state that the party lacks sufficient information to admit or 
deny each allegation of fact. A statement of lack of information has the 
effect of a denial. Denials must fairly meet the substance of each 
allegation of fact denied; general denials are not permitted. When a 
respondent denies part of an allegation, that part must be denied and 
the remainder specifically admitted. Any allegation of fact in the 
notice which is not denied in the answer must be deemed admitted for 
purposes of the proceeding. A respondent is not required to respond to 
the portion of a notice that constitutes the prayer for relief or 
proposed order. The answer must set forth affirmative defenses, if any, 
asserted by the respondent.
    (c) Default--(1) Effect of failure to answer. Failure of a 
respondent to file an answer required by this section within the time 
provided constitutes a waiver of his or her right to appear and contest 
the allegations in the notice. If no timely answer is filed, Enforcement 
Counsel may file a motion for entry of an order of default. Upon a 
finding that no good cause has been shown for the failure to file a 
timely answer, the administrative law judge shall file with the Board a 
recommended decision containing the findings and the relief sought in 
the notice. Any final order issued by the Board based upon a 
respondent's failure to answer is deemed to be an order issued upon 
consent.
    (2) Effect of failure to request a hearing in civil money penalty 
proceedings. If respondent fails to request a hearing as required by law 
within the time provided, the notice of assessment constitutes a final 
and unappealable order.



Sec. 263.20  Amended pleadings.

    (a) Amendments. The notice or answer may be amended or supplemented 
at any stage of the proceeding. The respondent must answer an amended 
notice within the time remaining for the respondent's answer to the 
original notice, or within ten days after service of the amended notice, 
whichever period

[[Page 281]]

is longer, unless the Board or administrative law judge orders otherwise 
for good cause.
    (b) Amendments to conform to the evidence. When issues not raised in 
the notice or answer are tried at the hearing by express or implied 
consent of the parties, they will be treated in all respects as if they 
had been raised in the notice or answer, and no formal amendments are 
required. If evidence is objected to at the hearing on the ground that 
it is not within the issues raised by the notice or answer, the 
administrative law judge may admit the evidence when admission is likely 
to assist in adjudicating the merits of the action and the objecting 
party fails to satisfy the administrative law judge that the admission 
of such evidence would unfairly prejudice that party's action or defense 
upon the merits. The administrative law judge may grant a continuance to 
enable the objecting party to meet such evidence.

[61 FR 20342, May 6, 1996]



Sec. 263.21  Failure to appear.

    Failure of a respondent to appear in person at the hearing or by a 
duly authorized counsel constitutes a waiver of respondent's right to a 
hearing and is deemed an admission of the facts as alleged and consent 
to the relief sought in the notice. Without further proceedings or 
notice to the respondent, the administrative law judge shall file with 
the Board a recommended decision containing the findings and the relief 
sought in the notice.



Sec. 263.22  Consolidation and severance of actions.

    (a) Consolidation. (1) On the motion of any party, or on the 
administrative law judge's own motion, the administrative law judge may 
consolidate, for some or all purposes, any two or more proceedings, if 
each such proceeding involves or arises out of the same transaction, 
occurrence or series of transactions or occurrences, or involves at 
least one common respondent or a material common question of law or 
fact, unless such consolidation would cause unreasonable delay or 
injustice.
    (2) In the event of consolidation under paragraph (a)(1) of this 
section, appropriate adjustment to the prehearing schedule shall be made 
to avoid unnecessary expense, inconvenience, or delay.
    (b) Severance. The administrative law judge may, upon the motion of 
any party, sever the proceeding for separate resolution of the matter as 
to any respondent only if the administrative law judge finds that:
    (1) Undue prejudice or injustice to the moving party would result 
from not severing the proceeding; and
    (2) Such undue prejudice or injustice would outweigh the interests 
of judicial economy and expedition in the complete and final resolution 
of the proceeding.



Sec. 263.23  Motions.

    (a) In writing. (1) Except as otherwise provided herein, an 
application or request for an order or ruling must be made by written 
motion.
    (2) All written motions must state with particularity the relief 
sought and must be accompanied by a proposed order.
    (3) No oral argument may be held on written motions except as 
otherwise directed by the administrative law judge. Written memoranda, 
briefs, affidavits or other relevant material or documents may be filed 
in support of or in opposition to a motion.
    (b) Oral motions. A motion may be made orally on the record unless 
the administrative law judge directs that such motion be reduced to 
writing.
    (c) Filing of motions. Motions must be filed with the administrative 
law judge, except that following the filing of the recommended decision, 
motions must be filed with the Board.
    (d) Responses. (1) Except as otherwise provided herein, within ten 
days after service of any written motion, or within such other period of 
time as may be established by the administrative law judge or the Board, 
any party may file a written response to a motion. The administrative 
law judge shall not rule on any oral or written motion before each party 
has had an opportunity to file a response.
    (2) The failure of a party to oppose a written motion or an oral 
motion made on the record is deemed a consent by

[[Page 282]]

that party to the entry of an order substantially in the form of the 
order accompanying the motion.
    (e) Dilatory motions. Frivolous, dilatory or repetitive motions are 
prohibited. The filing of such motions may form the basis for sanctions.
    (f) Dispositive motions. Dispositive motions are governed by 
Sec. Sec. 263.29 and 263.30.



Sec. 263.24  Scope of document discovery.

    (a) Limits on discovery. (1) Subject to the limitations set out in 
paragraphs (b), (c), and (d) of this section, a party to a proceeding 
under this subpart may obtain document discovery by serving a written 
request to produce documents. For purposes of a request to produce 
documents, the term ``documents'' may be defined to include drawings, 
graphs, charts, photographs, recordings, data stored in electronic form, 
and other data compilations from which information can be obtained, or 
translated, if necessary, by the parties through detection devices into 
reasonably usable form, as well as written material of all kinds.
    (2) Discovery by use of deposition is governed by Sec. 263.53 of 
subpart B of this part.
    (3) Discovery by use of interrogatories is not permitted.
    (b) Relevance. A party may obtain document discovery regarding any 
matter, not privileged, that has material relevance to the merits of the 
pending action. Any request to produce documents that calls for 
irrelevant material, that is unreasonable, oppressive, excessive in 
scope, unduly burdensome, or repetitive of previous requests, or that 
seeks to obtain privileged documents will be denied or modified. A 
request is unreasonable, oppressive, excessive in scope or unduly 
burdensome if, among other things, it fails to include justifiable 
limitations on the time period covered and the geographic locations to 
be searched, the time provided to respond in the request is inadequate, 
or the request calls for copies of documents to be delivered to the 
requesting party and fails to include the requestor's written agreement 
to pay in advance for the copying, in accordance with Sec. 263.25.
    (c) Privileged matter. Privileged documents are not discoverable. 
Privileges include the attorney-client privilege, work-product 
privilege, any government's or government agency's deliberative-process 
privilege, and any other privileges the Constitution, any applicable act 
of Congress, or the principles of common law provide.
    (d) Time limits. All discovery, including all responses to discovery 
requests, shall be completed at least 20 days prior to the date 
scheduled for the commencement of the hearing. No exceptions to this 
time limit shall be permitted, unless the administrative law judge finds 
on the record that good cause exists for waiving the requirements of 
this paragraph.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20342, May 6, 1996]



Sec. 263.25  Request for document discovery from parties.

    (a) General rule. Any party may serve on any other party a request 
to produce for inspection any discoverable documents that are in the 
possession, custody, or control of the party upon whom the request is 
served. The request must identify the documents to be produced either by 
individual item or by category, and must describe each item and category 
with reasonable particularity. Documents must be produced as they are 
kept in the usual course of business or must be organized to correspond 
with the categories in the request.
    (b) Production or copying. The request must specify a reasonable 
time, place, and manner for production and performing any related acts. 
In lieu of inspecting the documents, the requesting party may specify 
that all or some of the responsive documents be copied and the copies 
delivered to the requesting party. If copying of fewer than 250 pages is 
requested, the party to whom the request is addressed shall bear the 
cost of copying and shipping charges. If a party requests 250 pages or 
more of copying, the requesting party shall pay for the copying and 
shipping charges. Copying charges are the current per-page copying rate 
imposed by 12 CFR Part 261 implementing the Freedom of Information Act 
(5 U.S.C. 552). The party to whom the request is addressed

[[Page 283]]

may require payment in advance before producing the documents.
    (c) Obligation to update responses. A party who has responded to a 
discovery request with a response that was complete when made is not 
required to supplement the response to include documents thereafter 
acquired, unless the responding party learns that:
    (1) The response was materially incorrect when made; or
    (2) The response, though correct when made, is no longer true and a 
failure to amend the response is, in substance, a knowing concealment.
    (d) Motions to limit discovery. (1) Any party that objects to a 
discovery request may, within ten days of being served with such 
request, file a motion in accordance with the provisions of Sec. 263.23 
to strike or otherwise limit the request. If an objection is made to 
only a portion of an item or category in a request, the portion objected 
to shall be specified. Any objections not made in accordance with this 
paragraph and Sec. 263.23 are waived.
    (2) The party who served the request that is the subject of a motion 
to strike or limit may file a written response within five days of 
service of the motion. No other party may file a response.
    (e) Privilege. At the time other documents are produced, the 
producing party must reasonably identify all documents withheld on the 
grounds of privilege and must produce a statement of the basis for the 
assertion of privilege. When similar documents that are protected by 
deliberative process, attorney-work-product, or attorney-client 
privilege are voluminous, these documents may be identified by category 
instead of by individual document. The administrative law judge retains 
discretion to determine when the identification by category is 
insufficient.
    (f) Motions to compel production. (1) If a party withholds any 
documents as privileged or fails to comply fully with a discovery 
request, the requesting party may, within ten days of the assertion of 
privilege or of the time the failure to comply becomes known to the 
requesting party, file a motion in accordance with the provisions of 
Sec. 263.23 for the issuance of a subpoena compelling production.
    (2) The party who asserted the privilege or failed to comply with 
the request may file a written response to a motion to compel within 
five days of service of the motion. No other party may file a response.
    (g) Ruling on motions. After the time for filing responses pursuant 
to this section has expired, the administrative law judge shall rule 
promptly on all motions filed pursuant to this section. If the 
administrative law judge determines that a discovery request, or any of 
its terms, calls for irrelevant material, is unreasonable, oppressive, 
excessive in scope, unduly burdensome, or repetitive of previous 
requests, or seeks to obtain privileged documents, he or she may deny or 
modify the request, and may issue appropriate protective orders, upon 
such conditions as justice may require. The pendency of a motion to 
strike or limit discovery or to compel production is not a basis for 
staying or continuing the proceeding, unless otherwise ordered by the 
administrative law judge. Notwithstanding any other provision in this 
part, the administrative law judge may not release, or order a party to 
produce, documents withheld on grounds of privilege if the party has 
stated to the administrative law judge its intention to file a timely 
motion for interlocutory review of the administrative law judge's order 
to produce the documents, and until the motion for interlocutory review 
has been decided.
    (h) Enforcing discovery subpoenas. If the administrative law judge 
issues a subpoena compelling production of documents by a party, the 
subpoenaing party may, in the event of noncompliance and to the extent 
authorized by applicable law, apply to any appropriate United States 
district court for an order requiring compliance with the subpoena. A 
party's right to seek court enforcement of a subpoena shall not in any 
manner limit the sanctions that may be imposed by the administrative law 
judge against a party who fails to produce subpoenaed documents.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20343, May 6, 1996]

[[Page 284]]



Sec. 263.26  Document subpoenas to nonparties.

    (a) General rules. (1) Any party may apply to the administrative law 
judge for the issuance of a document discovery subpoena addressed to any 
person who is not a party to the proceeding. The application must 
contain a proposed document subpoena and a brief statement showing the 
general relevance and reasonableness of the scope of documents sought. 
The subpoenaing party shall specify a reasonable time, place, and manner 
for making production in response to the document subpoena.
    (2) A party shall only apply for a document subpoena under this 
section within the time period during which such party could serve a 
discovery request under Sec. 263.24(d). The party obtaining the 
document subpoena is responsible for serving it on the subpoenaed person 
and for serving copies on all parties. Document subpoenas may be served 
in any state, territory, or possession of the United States, the 
District of Columbia, or as otherwise provided by law.
    (3) The administrative law judge shall promptly issue any document 
subpoena requested pursuant to this section. If the administrative law 
judge determines that the application does not set forth a valid basis 
for the issuance of the subpoena, or that any of its terms are 
unreasonable, oppressive, excessive in scope, or unduly burdensome, he 
or she may refuse to issue the subpoena or may issue it in a modified 
form upon such conditions as may be consistent with the Uniform Rules.
    (b) Motion to quash or modify. (1) Any person to whom a document 
subpoena is directed may file a motion to quash or modify such subpoena, 
accompanied by a statement of the basis for quashing or modifying the 
subpoena. The movant shall serve the motion on all parties, and any 
party may respond to such motion within ten days of service of the 
motion.
    (2) Any motion to quash or modify a document subpoena must be filed 
on the same basis, including the assertion of privilege, upon which a 
party could object to a discovery request under Sec. 263.25(d), and 
during the same time limits during which such an objection could be 
filed.
    (c) Enforcing document subpoenas. If a subpoenaed person fails to 
comply with any subpoena issued pursuant to this section or any order of 
the administrative law judge which directs compliance with all or any 
portion of a document subpoena, the subpoenaing party or any other 
aggrieved party may, to the extent authorized by applicable law, apply 
to an appropriate United States district court for an order requiring 
compliance with so much of the document subpoena as the administrative 
law judge has not quashed or modified. A party's right to seek court 
enforcement of a document subpoena shall in no way limit the sanctions 
that may be imposed by the administrative law judge on a party who 
induces a failure to comply with subpoenas issued under this section.



Sec. 263.27  Deposition of witness unavailable for hearing.

    (a) General rules. (1) If a witness will not be available for the 
hearing, a party desiring to preserve that witness's testimony for the 
record may apply in accordance with the procedures set forth in 
paragraph (a)(2) of this section, to the administrative law judge for 
the issuance of a subpoena, including a subpoena duces tecum, requiring 
the attendance of the witness at a deposition. The administrative law 
judge may issue a deposition subpoena under this section upon a showing 
that:
    (i) The witness will be unable to attend or may be prevented from 
attending the hearing because of age, sickness or infirmity, or will 
otherwise be unavailable;
    (ii) The witness's unavailability was not procured or caused by the 
subpoenaing party;
    (iii) The testimony is reasonably expected to be material; and
    (iv) Taking the deposition will not result in any undue burden to 
any other party and will not cause undue delay of the proceeding.
    (2) The application must contain a proposed deposition subpoena and 
a brief statement of the reasons for the issuance of the subpoena. The 
subpoena must name the witness whose deposition is to be taken and 
specify the time

[[Page 285]]

and place for taking the deposition. A deposition subpoena may require 
the witness to be deposed at any place within the country in which that 
witness resides or has a regular place of employment or such other 
convenient place as the administrative law judge shall fix.
    (3) Any requested subpoena that sets forth a valid basis for its 
issuance must be promptly issued, unless the administrative law judge on 
his or her own motion, requires a written response or requires 
attendance at a conference concerning whether the requested subpoena 
should be issued.
    (4) The party obtaining a deposition subpoena is responsible for 
serving it on the witness and for serving copies on all parties. Unless 
the administrative law judge orders otherwise, no deposition under this 
section shall be taken on fewer than ten days' notice to the witness and 
all parties. Deposition subpoenas may be served in any state, territory, 
possession of the United States, or the District of Columbia, on any 
person or company doing business in any state, territory, possession of 
the United States, or the District of Columbia, or as otherwise 
permitted by law.
    (b) Objections to deposition subpoenas. (1) The witness and any 
party who has not had an opportunity to oppose a deposition subpoena 
issued under this section may file a motion with the administrative law 
judge to quash or modify the subpoena prior to the time for compliance 
specified in the subpoena, but not more than ten days after service of 
the subpoena.
    (2) A statement of the basis for the motion to quash or modify a 
subpoena issued under this section must accompany the motion. The motion 
must be served on all parties.
    (c) Procedure upon deposition. (1) Each witness testifying pursuant 
to a deposition subpoena must be duly sworn, and each party shall have 
the right to examine the witness. Objections to questions or documents 
must be in short form, stating the grounds for the objection. Failure to 
object to questions or documents is not deemed a waiver except where the 
ground for the objection might have been avoided if the objection had 
been timely presented. All questions, answers, and objections must be 
recorded.
    (2) Any party may move before the administrative law judge for an 
order compelling the witness to answer any questions the witness has 
refused to answer or submit any evidence the witness has refused to 
submit during the deposition.
    (3) The deposition must be subscribed by the witness, unless the 
parties and the witness, by stipulation, have waived the signing, or the 
witness is ill, cannot be found, or has refused to sign. If the 
deposition is not subscribed by the witness, the court reporter taking 
the deposition shall certify that the transcript is a true and complete 
transcript of the deposition.
    (d) Enforcing subpoenas. If a subpoenaed person fails to comply with 
any order of the administrative law judge which directs compliance with 
all or any portion of a deposition subpoena under paragraph (b) or 
(c)(3) of this section, the subpoenaing party or other aggrieved party 
may, to the extent authorized by applicable law, apply to an appropriate 
United States district court for an order requiring compliance with the 
portions of the subpoena that the administrative law judge has ordered 
enforced. A party's right to seek court enforcement of a deposition 
subpoena in no way limits the sanctions that may be imposed by the 
administrative law judge on a party who fails to comply with, or 
procures a failure to comply with, a subpoena issued under this section.



Sec. 263.28  Interlocutory review.

    (a) General rule. The Board may review a ruling of the 
administrative law judge prior to the certification of the record to the 
Board only in accordance with the procedures set forth in this section 
and Sec. 263.23.
    (b) Scope of review. The Board may exercise interlocutory review of 
a ruling of the administrative law judge if the Board finds that:
    (1) The ruling involves a controlling question of law or policy as 
to which substantial grounds exist for a difference of opinion;
    (2) Immediate review of the ruling may materially advance the 
ultimate termination of the proceeding;

[[Page 286]]

    (3) Subsequent modification of the ruling at the conclusion of the 
proceeding would be an inadequate remedy; or
    (4) Subsequent modification of the ruling would cause unusual delay 
or expense.
    (c) Procedure. Any request for interlocutory review shall be filed 
by a party with the administrative law judge within ten days of his or 
her ruling and shall otherwise comply with Sec. 263.23. Any party may 
file a response to a request for interlocutory review in accordance with 
Sec. 263.23(d). Upon the expiration of the time for filing all 
responses, the administrative law judge shall refer the matter to the 
Board for final disposition.
    (d) Suspension of proceeding. Neither a request for interlocutory 
review nor any disposition of such a request by the Board under this 
section suspends or stays the proceeding unless otherwise ordered by the 
administrative law judge or the Board.



Sec. 263.29  Summary disposition.

    (a) In general. The administrative law judge shall recommend that 
the Board issue a final order granting a motion for summary disposition 
if the undisputed pleaded facts, admissions, affidavits, stipulations, 
documentary evidence, matters as to which official notice may be taken, 
and any other evidentiary materials properly submitted in connection 
with a motion for summary disposition show that:
    (1) There is no genuine issue as to any material fact; and
    (2) The moving party is entitled to a decision in its favor as a 
matter of law.
    (b) Filing of motions and responses. (1) Any party who believes that 
there is no genuine issue of material fact to be determined and that he 
or she is entitled to a decision as a matter of law may move at any time 
for summary disposition in its favor of all or any part of the 
proceeding. Any party, within 20 days after service of such a motion, or 
within such time period as allowed by the administrative law judge, may 
file a response to such motion.
    (2) A motion for summary disposition must be accompanied by a 
statement of the material facts as to which the moving party contends 
there is no genuine issue. Such motion must be supported by documentary 
evidence, which may take the form of admissions in pleadings, 
stipulations, depositions, investigatory depositions, transcripts, 
affidavits and any other evidentiary materials that the moving party 
contends support his or her position. The motion must also be 
accompanied by a brief containing the points and authorities in support 
of the contention of the moving party. Any party opposing a motion for 
summary disposition must file a statement setting forth those material 
facts as to which he or she contends a genuine dispute exists. Such 
opposition must be supported by evidence of the same type as that 
submitted with the motion for summary disposition and a brief containing 
the points and authorities in support of the contention that summary 
disposition would be inappropriate.
    (c) Hearing on motion. At the request of any party or on his or her 
own motion, the administrative law judge may hear oral argument on the 
motion for summary disposition.
    (d) Decision on motion. Following receipt of a motion for summary 
disposition and all responses thereto, the administrative law judge 
shall determine whether the moving party is entitled to summary 
disposition. If the administrative law judge determines that summary 
disposition is warranted, the administrative law judge shall submit a 
recommended decision to that effect to the Board. If the administrative 
law judge finds that no party is entitled to summary disposition, he or 
she shall make a ruling denying the motion.



Sec. 263.30  Partial summary disposition.

    If the administrative law judge determines that a party is entitled 
to summary disposition as to certain claims only, he or she shall defer 
submitting a recommended decision as to those claims. A hearing on the 
remaining issues must be ordered. Those claims for which the 
administrative law judge has determined that summary disposition is 
warranted will be addressed in the recommended decision filed at the 
conclusion of the hearing.

[[Page 287]]



Sec. 263.31  Scheduling and prehearing conferences.

    (a) Scheduling conference. Within 30 days of service of the notice 
or order commencing a proceeding or such other time as parties may 
agree, the administrative law judge shall direct counsel for all parties 
to meet with him or her in person at a specified time and place prior to 
the hearing or to confer by telephone for the purpose of scheduling the 
course and conduct of the proceeding. This meeting or telephone 
conference is called a ``scheduling conference.'' The identification of 
potential witnesses, the time for and manner of discovery, and the 
exchange of any prehearing materials including witness lists, statements 
of issues, stipulations, exhibits and any other materials may also be 
determined at the scheduling conference.
    (b) Prehearing conferences. The administrative law judge may, in 
addition to the scheduling conference, on his or her own motion or at 
the request of any party, direct counsel for the parties to meet with 
him or her (in person or by telephone) at a prehearing conference to 
address any or all of the following:
    (1) Simplification and clarification of the issues;
    (2) Stipulations, admissions of fact, and the contents, authenticity 
and admissibility into evidence of documents;
    (3) Matters of which official notice may be taken;
    (4) Limitation of the number of witnesses;
    (5) Summary disposition of any or all issues;
    (6) Resolution of discovery issues or disputes;
    (7) Amendments to pleadings; and
    (8) Such other matters as may aid in the orderly disposition of the 
proceeding.
    (c) Transcript. The administrative law judge, in his or her 
discretion, may require that a scheduling or prehearing conference be 
recorded by a court reporter. A transcript of the conference and any 
materials filed, including orders, becomes part of the record of the 
proceeding. A party may obtain a copy of the transcript at his or her 
expense.
    (d) Scheduling or prehearing orders. At or within a reasonable time 
following the conclusion of the scheduling conference or any prehearing 
conference, the administrative law judge shall serve on each party an 
order setting forth any agreements reached and any procedural 
determinations made.



Sec. 263.32  Prehearing submissions.

    (a) Within the time set by the administrative law judge, but in no 
case later than 14 days before the start of the hearing, each party 
shall serve on every other party, his or her:
    (1) Prehearing statement;
    (2) Final list of witnesses to be called to testify at the hearing, 
including name and address of each witness and a short summary of the 
expected testimony of each witness;
    (3) List of the exhibits to be introduced at the hearing along with 
a copy of each exhibit; and
    (4) Stipulations of fact, if any.
    (b) Effect of failure to comply. No witness may testify and no 
exhibits may be introduced at the hearing if such witness or exhibit is 
not listed in the prehearing submissions pursuant to paragraph (a) of 
this section, except for good cause shown.



Sec. 263.33  Public hearings.

    (a) General rule. All hearings shall be open to the public, unless 
the Board, in the Board's discretion, determines that holding an open 
hearing would be contrary to the public interest. Within 20 days of 
service of the notice or, in the case of change-in-control proceedings 
under section 7(j)(4) of the FDIA (12 U.S.C. 1817(j)(4)), within 20 days 
from service of the hearing order, any respondent may file with the 
Board a request for a private hearing, and any party may file a reply to 
such a request. A party must serve on the administrative law judge a 
copy of any request or reply the party files with the Board. The form 
of, and procedure for, these requests and replies are governed by Sec. 
263.23. A party's failure to file a request or a reply constitutes a 
waiver of any objections regarding whether the hearing will be public or 
private.
    (b) Filing document under seal. Enforcement Counsel, in his or her 
discretion, may file any document or part of a document under seal if 
disclosure of

[[Page 288]]

the document would be contrary to the public interest. The 
administrative law judge shall take all appropriate steps to preserve 
the confidentiality of such documents or parts thereof, including 
closing portions of the hearing to the public.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20343, May 6, 1996]



Sec. 263.34  Hearing subpoenas.

    (a) Issuance. (1) Upon application of a party showing general 
relevance and reasonableness of scope of the testimony or other evidence 
sought, the administrative law judge may issue a subpoena or a subpoena 
duces tecum requiring the attendance of a witness at the hearing or the 
production of documentary or physical evidence at the hearing. The 
application for a hearing subpoena must also contain a proposed subpoena 
specifying the attendance of a witness or the production of evidence 
from any state, territory, or possession of the United States, the 
District of Columbia, or as otherwise provided by law at any designated 
place where the hearing is being conducted. The party making the 
application shall serve a copy of the application and the proposed 
subpoena on every other party.
    (2) A party may apply for a hearing subpoena at any time before the 
commencement of a hearing. During a hearing, a party may make an 
application for a subpoena orally on the record before the 
administrative law judge.
    (3) The administrative law judge shall promptly issue any hearing 
subpoena requested pursuant to this section. If the administrative law 
judge determines that the application does not set forth a valid basis 
for the issuance of the subpoena, or that any of its terms are 
unreasonable, oppressive, excessive in scope, or unduly burdensome, he 
or she may refuse to issue the subpoena or may issue it in a modified 
form upon any conditions consistent with this subpart. Upon issuance by 
the administrative law judge, the party making the application shall 
serve the subpoena on the person named in the subpoena and on each 
party.
    (b) Motion to quash or modify. (1) Any person to whom a hearing 
subpoena is directed or any party may file a motion to quash or modify 
the subpoena, accompanied by a statement of the basis for quashing or 
modifying the subpoena. The movant must serve the motion on each party 
and on the person named in the subpoena. Any party may respond to the 
motion within ten days of service of the motion.
    (2) Any motion to quash or modify a hearing subpoena must be filed 
prior to the time specified in the subpoena for compliance, but not more 
than ten days after the date of service of the subpoena upon the movant.
    (c) Enforcing subpoenas. If a subpoenaed person fails to comply with 
any subpoena issued pursuant to this section or any order of the 
administrative law judge which directs compliance with all or any 
portion of a document subpoena, the subpoenaing party or any other 
aggrieved party may seek enforcement of the subpoena pursuant to Sec. 
263.26(c).

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20343, May 6, 1996]



Sec. 263.35  Conduct of hearings.

    (a) General rules. (1) Hearings shall be conducted so as to provide 
a fair and expeditious presentation of the relevant disputed issues. 
Each party has the right to present its case or defense by oral and 
documentary evidence and to conduct such cross examination as may be 
required for full disclosure of the facts.
    (2) Order of hearing. Enforcement Counsel shall present its case-in-
chief first, unless otherwise ordered by the administrative law judge, 
or unless otherwise expressly specified by law or regulation. 
Enforcement Counsel shall be the first party to present an opening 
statement and a closing statement, and may make a rebuttal statement 
after the respondent's closing statement. If there are multiple 
respondents, respondents may agree among themselves as to their order of 
presentation of their cases, but if they do not agree the administrative 
law judge shall fix the order.
    (3) Examination of witnesses. Only one counsel for each party may 
conduct an examination of a witness, except that in the case of 
extensive direct examination, the administrative law judge

[[Page 289]]

may permit more than one counsel for the party presenting the witness to 
conduct the examination. A party may have one counsel conduct the direct 
examination and another counsel conduct re-direct examination of a 
witness, or may have one counsel conduct the cross examination of a 
witness and another counsel conduct the re-cross examination of a 
witness.
    (4) Stipulations. Unless the administrative law judge directs 
otherwise, all stipulations of fact and law previously agreed upon by 
the parties, and all documents, the admissibility of which have been 
previously stipulated, will be admitted into evidence upon commencement 
of the hearing.
    (b) Transcript. The hearing must be recorded and transcribed. The 
reporter will make the transcript available to any party upon payment by 
that party to the reporter of the cost of the transcript. The 
administrative law judge may order the record corrected, either upon 
motion to correct, upon stipulation of the parties, or following notice 
to the parties upon the administrative law judge's own motion.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20343, May 6, 1996]



Sec. 263.36  Evidence.

    (a) Admissibility. (1) Except as is otherwise set forth in this 
section, relevant, material, and reliable evidence that is not unduly 
repetitive is admissible to the fullest extent authorized by the 
Administrative Procedure Act and other applicable law.
    (2) Evidence that would be admissible under the Federal Rules of 
Evidence is admissible in a proceeding conducted pursuant to this 
subpart.
    (3) Evidence that would be inadmissible under the Federal Rules of 
Evidence may not be deemed or ruled to be inadmissible in a proceeding 
conducted pursuant to this subpart if such evidence is relevant, 
material, reliable and not unduly repetitive.
    (b) Official notice. (1) Official notice may be taken of any 
material fact which may be judicially noticed by a United States 
district court and any material information in the official public 
records of any Federal or state government agency.
    (2) All matters officially noticed by the administrative law judge 
or Board shall appear on the record.
    (3) If official notice is requested or taken of any material fact, 
the parties, upon timely request, shall be afforded an opportunity to 
object.
    (c) Documents. (1) A duplicate copy of a document is admissible to 
the same extent as the original, unless a genuine issue is raised as to 
whether the copy is in some material respect not a true and legible copy 
of the original.
    (2) Subject to the requirements of paragraph (a) of this section, 
any document, including a report of examination, supervisory activity, 
inspection or visitation, prepared by an appropriate Federal financial 
institution regulatory agency or state regulatory agency, is admissible 
either with or without a sponsoring witness.
    (3) Witnesses may use existing or newly created charts, exhibits, 
calendars, calculations, outlines or other graphic material to 
summarize, illustrate, or simplify the presentation of testimony. Such 
materials may, subject to the administrative law judge's discretion, be 
used with or without being admitted into evidence.
    (d) Objections. (1) Objections to the admissibility of evidence must 
be timely made and rulings on all objections must appear on the record.
    (2) When an objection to a question or line of questioning 
propounded to a witness is sustained, the examining counsel may make a 
specific proffer on the record of what he or she expected to prove by 
the expected testimony of the witness, either by representation of 
counsel or by direct interrogation of the witness.
    (3) The administrative law judge shall retain rejected exhibits, 
adequately marked for identification, for the record, and transmit such 
exhibits to the Board.
    (4) Failure to object to admission of evidence or to any ruling 
constitutes a waiver of the objection.
    (e) Stipulations. The parties may stipulate as to any relevant 
matters of fact or the authentication of any relevant documents. Such 
stipulations must be received in evidence at a hearing, and are binding 
on the parties with respect to the matters therein stipulated.

[[Page 290]]

    (f) Depositions of unavailable witnesses. (1) If a witness is 
unavailable to testify at a hearing, and that witness has testified in a 
deposition to which all parties in a proceeding had notice and an 
opportunity to participate, a party may offer as evidence all or any 
part of the transcript of the deposition, including deposition exhibits, 
if any.
    (2) Such deposition transcript is admissible to the same extent that 
testimony would have been admissible had that person testified at the 
hearing, provided that if a witness refused to answer proper questions 
during the depositions, the administrative law judge may, on that basis, 
limit the admissibility of the deposition in any manner that justice 
requires.
    (3) Only those portions of a deposition received in evidence at the 
hearing constitute a part of the record.



Sec. 263.37  Post-hearing filings.

    (a) Proposed findings and conclusions and supporting briefs. (1) 
Using the same method of service for each party, the administrative law 
judge shall serve notice upon each party, that the certified transcript, 
together with all hearing exhibits and exhibits introduced but not 
admitted into evidence at the hearing, has been filed. Any party may 
file with the administrative law judge proposed findings of fact, 
proposed conclusions of law, and a proposed order within 30 days 
following service of this notice by the administrative law judge or 
within such longer period as may be ordered by the administrative law 
judge.
    (2) Proposed findings and conclusions must be supported by citation 
to any relevant authorities and by page references to any relevant 
portions of the record. A post-hearing brief may be filed in support of 
proposed findings and conclusions, either as part of the same document 
or in a separate document. Any party who fails to file timely with the 
administrative law judge any proposed finding or conclusion is deemed to 
have waived the right to raise in any subsequent filing or submission 
any issue not addressed in such party's proposed finding or conclusion.
    (b) Reply briefs. Reply briefs may be filed within 15 days after the 
date on which the parties' proposed findings, conclusions, and order are 
due. Reply briefs must be strictly limited to responding to new matters, 
issues, or arguments raised in another party's papers. A party who has 
not filed proposed findings of fact and conclusions of law or a post-
hearing brief may not file a reply brief.
    (c) Simultaneous filing required. The administrative law judge shall 
not order the filing by any party of any brief or reply brief in advance 
of the other party's filing of its brief.

[56 FR 38052, Aug. 9, 1991, as amended at 61 FR 20344, May 6, 1996]



Sec. 263.38  Recommended decision and filing of record.

    (a) Filing of recommended decision and record. Within 45 days after 
expiration of the time allowed for filing reply briefs under Sec. 
263.37(b), the administrative law judge shall file with and certify to 
the Board, for decision, the record of the proceeding. The record must 
include the administrative law judge's recommended decision, recommended 
findings of fact, recommended conclusions of law, and proposed order; 
all prehearing and hearing transcripts, exhibits, and rulings; and the 
motions, briefs, memoranda, and other supporting papers filed in 
connection with the hearing. The administrative law judge shall serve 
upon each party the recommended decision, findings, conclusions, and 
proposed order.
    (b) Filing of index. At the same time the administrative law judge 
files with and certifies to the Board for final determination the record 
of the proceeding, the administrative law judge shall furnish to the 
Board a certified index of the entire record of the proceeding. The 
certified index shall include, at a minimum, an entry for each paper, 
document or motion filed with the administrative law judge in the 
proceeding, the date of the filing, and the identity of the filer. The 
certified index shall also include an exhibit index containing, at a 
minimum, an entry consisting of exhibit number and title or description 
for: Each exhibit introduced and admitted into evidence at the hearing; 
each exhibit introduced but not admitted into evidence at the hearing; 
each exhibit introduced and

[[Page 291]]

admitted into evidence after the completion of the hearing; and each 
exhibit introduced but not admitted into evidence after the completion 
of the hearing.

[61 FR 20344, May 6, 1996]



Sec. 263.39  Exceptions to recommended decision.

    (a) Filing exceptions. Within 30 days after service of the 
recommended decision, findings, conclusions, and proposed order under 
Sec. 263.38, a party may file with the Board written exceptions to the 
administrative law judge's recommended decision, findings, conclusions 
or proposed order, to the admission or exclusion of evidence, or to the 
failure of the administrative law judge to make a ruling proposed by a 
party. A supporting brief may be filed at the time the exceptions are 
filed, either as part of the same document or in a separate document.
    (b) Effect of failure to file or raise exceptions. (1) Failure of a 
party to file exceptions to those matters specified in paragraph (a) of 
this section within the time prescribed is deemed a waiver of objection 
thereto.
    (2) No exception need be considered by the Board if the party taking 
exception had an opportunity to raise the same objection, issue, or 
argument before the administrative law judge and failed to do so.
    (c) Contents. (1) All exceptions and briefs in support of such 
exceptions must be confined to the particular matters in, or omissions 
from, the administrative law judge's recommendations to which that party 
takes exception.
    (2) All exceptions and briefs in support of exceptions must set 
forth page or paragraph references to the specific parts of the 
administrative law judge's recommendations to which exception is taken, 
the page or paragraph references to those portions of the record relied 
upon to support each exception, and the legal authority relied upon to 
support each exception.



Sec. 263.40  Review by the Board.

    (a) Notice of submission to the Board. When the Board determines 
that the record in the proceeding is complete, the Board shall serve 
notice upon the parties that the proceeding has been submitted to the 
Board for final decision.
    (b) Oral argument before the Board. Upon the initiative of the Board 
or on the written request of any party filed with the Board within the 
time for filing exceptions, the Board may order and hear oral argument 
on the recommended findings, conclusions, decision, and order of the 
administrative law judge. A written request by a party must show good 
cause for oral argument and state reasons why arguments cannot be 
presented adequately in writing. A denial of a request for oral argument 
may be set forth in the Board's final decision. Oral argument before the 
Board must be on the record.
    (c) Agency final decision. (1) Decisional employees may advise and 
assist the Board in the consideration and disposition of the case. The 
final decision of the Board will be based upon review of the entire 
record of the proceeding, except that the Board may limit the issues to 
be reviewed to those findings and conclusions to which opposing 
arguments or exceptions have been filed by the parties.
    (2) The Board shall render a final decision within 90 days after 
notification of the parties that the case has been submitted for final 
decision, or 90 days after oral argument, whichever is later, unless the 
Board orders that the action or any aspect thereof be remanded to the 
administrative law judge for further proceedings. Copies of the final 
decision and order of the Board shall be served upon each party to the 
proceeding, upon other persons required by statute, and, if directed by 
the Board or required by statute, upon any appropriate state or Federal 
supervisory authority.



Sec. 263.41  Stays pending judicial review.

    The commencement of proceedings for judicial review of a final 
decision and order of the Board may not, unless specifically ordered by 
the Board or a reviewing court, operate as a stay of any order issued by 
the Board. The Board may, in its discretion, and on such terms as it 
finds just, stay the effectiveness of all or any part of its order 
pending a final decision on a petition for review of that order.

[[Page 292]]



       Subpart B_Board Local Rules Supplementing the Uniform Rules



Sec. 263.50  Purpose and scope.

    (a) This subpart prescribes the rules of practice and procedure 
governing formal adjudications set forth in Sec. 263.50(b) of this 
subpart, and supplements the rules of practice and procedure contained 
in subpart A of this part.
    (b) The rules and procedures of this subpart and subpart A of this 
part shall apply to the formal adjudications set forth in Sec. 263.1 of 
subpart A and to the following adjudications:
    (1) Suspension of a member bank from use of credit facilities of the 
Federal Reserve System under section 4 of the FRA (12 U.S.C. 301);
    (2) Termination of a bank's membership in the Federal Reserve System 
under section 9 of the FRA (12 U.S.C. 327);
    (3) Issuance of a cease-and-desist order under section 11 of the 
Clayton Act (15 U.S.C. 21);
    (4) Adjudications under sections 2, 3, or 4 of the BHC Act (12 
U.S.C. 1841, 1842, or 1843);
    (5) Formal adjudications on bank merger applications under section 
18(c) of the FDIA (12 U.S.C. 1828(c));
    (6) Issuance of a divestiture order under section 5(e) of the BHC 
Act (12 U.S.C. 1844(e));
    (7) Imposition of sanctions upon any municipal securities dealer for 
which the Board is the appropriate regulatory agency, or upon any person 
associated or seeking to become associated with such a municipal 
securities dealer, under section 15B(c)(5) of the Exchange Act (15 
U.S.C. 78o-4);
    (8) Proceedings where the Board otherwise orders that a formal 
hearing be held;
    (9) Termination of the activities of a state branch, state agency, 
or commercial lending company subsidiary of a foreign bank in the United 
States, pursuant to section 7(e) of the IBA (12 U.S.C. 3105(d));
    (10) Termination of the activities of a representative office of a 
foreign bank in the United States, pursuant to section 10(b) of the IBA 
(12 U.S.C. 3107(b));
    (11) Issuance of a prompt corrective action directive to a member 
bank under section 38 of the FDI Act (12 U.S.C. 1831o);
    (12) Reclassification of a member bank on grounds of unsafe or 
unsound condition under section 38(g)(1) of the FDI Act (12 U.S.C. 
1831o(g)(1));
    (13) Reclassification of a member bank on grounds of unsafe and 
unsound practice under section 38(g)(1) of the FDI Act (12 U.S.C. 
1831o(g)(1));
    (14) Issuance of an order requiring a member bank to dismiss a 
director or senior executive officer under section 38 (e)(5) and 
38(f)(2) (F)(ii) of the FDI Act (12 U.S.C. 1831o(e)(5) and 1831o(f)(2) 
(F)(ii));
    (15) Adjudications under section 10 of the HOLA (12 U.S.C. 1467a).

[56 FR 38052, Aug. 9, 1991, as amended at 57 FR 13001, Apr. 15, 1992; 57 
FR 44888, Sept. 29, 1992; 76 FR 56603, Sept. 13, 2011]



Sec. 263.51  Definitions.

    As used in subparts B through G of this part:
    (a) Secretary means the Secretary of the Board of Governors of the 
Federal Reserve System;
    (b) Member bank means any bank that is a member of the Federal 
Reserve System.
    (c) Institution has the same meaning as that assigned to it in Sec. 
263.3(f) of subpart A, and includes any foreign bank with a 
representative office in the United States.

[56 FR 38052, Aug. 9, 1991, as amended at 57 FR 13001, Apr. 15, 1992; 58 
FR 6363, Jan. 28, 1993]



Sec. 263.52  Address for filing.

    All papers to be filed with the Board shall be filed with the 
Secretary of the Board of Governors of the Federal Reserve System, 
Washington, DC 20551.



Sec. 263.53  Discovery depositions.

    (a) In general. In addition to the discovery permitted in subpart A 
of this part, limited discovery by means of depositions shall be allowed 
for individuals with knowledge of facts material to the proceeding that 
are not protected from discovery by any applicable privilege, and of 
identified expert witnesses. Except in unusual cases, accordingly, 
depositions will be permitted only of individuals identified as hearing 
witnesses, including experts.

[[Page 293]]

All discovery depositions must be completed within the time set forth in 
Sec. 263.24(d).
    (b) Application. A party who desires to take a deposition of any 
other party's proposed witnesses, shall apply to the administrative law 
judge for the issuance of a deposition subpoena or subpoena duces tecum. 
The application shall state the name and address of the proposed 
deponent, the subject matter of the testimony expected from the deponent 
and its relevancy to the proceeding, and the address of the place and 
the time, no sooner than ten days after the service of the subpoena, for 
the taking of the deposition. Any such application shall be treated as a 
motion subject to the rules governing motions practice set forth in 
Sec. 263.23.
    (c) Issuance of subpoena. The administrative law judge shall issue 
the requested deposition subpoena or subpoena duces tecum upon a finding 
that the application satisfies the requirements of this section and of 
Sec. 263.24. If the administrative law judge determines that the taking 
of the deposition or its proposed location is, in whole or in part, 
unnecessary, unreasonable, oppressive, excessive in scope or unduly 
burdensome, he or she may deny the application or may grant it upon such 
conditions as justice may require. The party obtaining the deposition 
subpoena or subpoena duces tecum shall be responsible for serving it on 
the deponent and all parties to the proceeding in accordance with Sec. 
263.11.
    (d) Motion to quash or modify. A person named in a deposition 
subpoena or subpoena duces tecum may file a motion to quash or modify 
the subpoena or for the issuance of a protective order. Such motions 
must be filed within ten days following service of the subpoena, but in 
all cases at least five days prior to the commencement of the scheduled 
deposition. The motion must be accompanied by a statement of the reasons 
for granting the motion and a copy of the motion and the statement must 
be served on the party which requested the subpoena. Only the party 
requesting the subpoena may file a response to a motion to quash or 
modify, and any such response shall be filed within five days following 
service of the motion.
    (e) Enforcement of a deposition subpoena. Enforcement of a 
deposition subpoena shall be in accordance with the procedures set forth 
in Sec. 263.27(d).
    (f) Conduct of the deposition. The deponent shall be duly sworn, and 
each party shall have the right to examine the deponent with respect to 
all non-privileged, relevant and material matters. Objections to 
questions or evidence shall be in the short form, stating the ground for 
the objection. Failure to object to questions or evidence shall not be 
deemed a waiver except where the grounds for the objection might have 
been avoided if the objection had been timely presented. The discovery 
deposition shall be transcribed or otherwise recorded as agreed among 
the parties.
    (g) Protective orders. At any time during the taking of a discovery 
deposition, on the motion of any party or of the deponent, the 
administrative law judge may terminate or limit the scope and manner of 
the deposition upon a finding that grounds exist for such relief. 
Grounds for terminating or limiting the taking of a discovery deposition 
include a finding that the discovery deposition is being conducted in 
bad faith or in such a manner as to:
    (1) Unreasonably annoy, embarrass, or oppress the deponent;
    (2) Unreasonably probe into privilege, irrelevant or immaterial 
matters; or
    (3) Unreasonably attempt to pry into a party's preparation for 
trial.



Sec. 263.54  Delegation to the Office of Financial Institution Adjudication.

    Unless otherwise ordered by the Board, administrative adjudications 
subject to subpart A of this part shall be conducted by an 
administrative law judge of OFIA.



Sec. 263.55  Board as Presiding Officer.

    The Board may, in its discretion, designate itself, one or more of 
its members, or an authorized officer, to act as presiding officer in a 
formal hearing. In such a proceeding, proposed findings and conclusions, 
briefs, and other submissions by the parties permitted in subpart A 
shall be filed with the Secretary for consideration by the Board. 
Sections 263.38 and 263.39 of subpart A

[[Page 294]]

will not apply to proceedings conducted under this section.



Sec. 263.56  Initial licensing proceedings.

    Proceedings with respect to applications for initial licenses shall 
include, but not be limited to, applications for Board approval under 
section 3 of the BHC Act and section 10 of HOLA and such proceedings as 
may be ordered by the Board with respect to applications under section 
18(c) of the FDIA. In such initial licensing proceedings, the procedures 
set forth in subpart A of this part shall apply, except that the Board 
may designate a Board Counsel to represent the Board in a nonadversary 
capacity for the purpose of developing for the record information 
relevant to the issues to be determined by the Presiding Officer and the 
Board. In such proceedings, Board Counsel shall be considered to be a 
decisional employee for purposes of Sec. Sec. 263.9 and 263.40 of 
subpart A.

[76 FR 56603, Sept. 13, 2011]



 Subpart C_Rules and Procedures for Assessment and Collection of Civil 
                             Money Penalties



Sec. 263.60  Scope.

    The Uniform Rules set forth in subpart A of this part shall govern 
the procedures for assessment of civil money penalties, except as 
otherwise provided in this subpart.



Sec. 263.61  Opportunity for informal proceeding.

    In the sole discretion of the Board's General Counsel, the General 
Counsel may, prior to the issuance by the Board of a notice of 
assessment of civil penalty, advise the affected person that the 
issuance of a notice of assessment of civil penalty is being considered 
and the reasons and authority for the proposed assessment. The General 
Counsel may provide the person an opportunity to present written 
materials or request a conference with members of the Board's staff to 
show that the penalty should not be assessed or, if assessed, should be 
reduced in amount.



Sec. 263.62  Relevant considerations for assessment of civil penalty.

    In determining the amount of the penalty to be assessed, the Board 
shall take into account the appropriateness of the penalty with respect 
to the financial resources and good faith of the person charged, the 
gravity of the misconduct, the history of previous misconduct, the 
economic benefit derived by the person from the misconduct, and such 
other matters as justice may require.



Sec. 263.63  Assessment order.

    (a) In the event of consent to an assessment by the person 
concerned, or if, upon the record made at an administrative hearing, the 
Board finds that the grounds for having assessed the penalty have been 
established, the Board may issue a final order of assessment of civil 
penalty. In its final order, the Board may modify the amount of the 
penalty specified in the notice of assessment.
    (b) An assessment order is effective immediately upon issuance, or 
upon such other date as may be specified therein, and shall remain 
effective and enforceable until it is stayed, modified, terminated, or 
set aside by action of the Board or a reviewing court.



Sec. 263.64  Payment of civil penalty.

    (a) The date designated in the notice of assessment for payment of 
the civil penalty will normally be 60 days from the issuance of the 
notice. If, however, the Board finds in a specific case that the 
purposes of the authorizing statute would be better served if the 60-day 
period is changed, the Board may shorten or lengthen the period or make 
the civil penalty payable immediately upon receipt of the notice of 
assessment. If a timely request for a formal hearing to challenge an 
assessment of civil penalty is filed, payment of the penalty shall not 
be required unless and until the Board issues a final order of 
assessment following the hearing. If an assessment order is issued, it 
will specify the date by which the civil penalty should be paid or 
collected.
    (b) Checks in payment of civil penalties should be made payable to 
the ``Board of Governors of the Federal Reserve System.'' Upon 
collection, the

[[Page 295]]

Board shall forward the amount of the penalty to the Treasury of the 
United States.



Sec. 263.65  Civil penalty inflation adjustments.

    (a) Inflation adjustments. In accordance with the Federal Civil 
Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note), the 
Board has set forth in paragraph (b) of this section adjusted maximum 
penalty amounts for each civil money penalty provided by law within its 
jurisdiction. The adjusted civil penalty amounts provided in paragraphs 
(b)(1) through (10) of this section replace only the amounts published 
in the statutes authorizing the assessment of penalties and the 
previously-adjusted amounts adopted as of October 12, 2004, October 12, 
2000, and October 24, 1996. The adjusted civil penalty amounts provided 
in paragraphs (b)(11) and (12) of this section replace only the amounts 
published in the statutes authorizing the assessment of penalties and 
were adjusted by the Office of Thrift Supervision as of October 27, 
2008. The authorizing statutes contain the complete provisions under 
which the Board may seek a civil money penalty. The increased penalty 
amounts apply only to violations occurring after September 13, 2011.
    (b) Maximum civil money penalties. The maximum civil money penalties 
as set forth in the referenced statutory sections are as follows:
    (1) 12 U.S.C. 324:
    (i) Inadvertently late or misleading reports, inter alia--$2,200.
    (ii) Other late or misleading reports, inter alia--$32,000.
    (iii) Knowingly or recklessly false or misleading reports, inter 
alia--$1,375,000.
    (2) 12 U.S.C. 504, 505, 1817(j)(16), 1818(i)(2) and 1972(2)(F):
    (i) First tier--$7,500.
    (ii) Second tier--$37,500.
    (iii) Third tier--$1,375,000.
    (3) 12 U.S.C. 1820(k)(6)(A)(ii)--$275,000.
    (4) 12 U.S.C. 1832(c)--$1,100.
    (5) 12 U.S.C. 1847(b), 3110(a)--$37,500.
    (6) 12 U.S.C. 1847(d), 3110(c):
    (i) First tier--$2,200.
    (ii) Second tier--$32,000.
    (iii) Third tier--$1,375,000.
    (7) 12 U.S.C. 334, 374a, 1884--$110.
    (8) 12 U.S.C. 3909(d)--$1,100.
    (9) 15 U.S.C. 78u-2:
    (i) 15 U.S.C. 78u-2(b)(1)--$7,500 for a natural person and $70,000 
for any other person.
    (ii) 15 U.S.C. 78u-2(b)(2)--$70,000 for a natural person and 
$350,000 for any other person.
    (iii) 15 U.S.C. 78u-2(b)(3)--$140,000 for a natural person and 
$675,000 for any other person.
    (10) 42 U.S.C. 4012a(f)(5):
    (i) For each violation--$385.
    (ii) For the total amount of penalties assessed under 42 U.S.C 
4012a(f)(5) against an institution or enterprise during any calendar 
year--$135,000.
    (11) 12 U.S.C. 1467a(i):
    (i) 12 U.S.C. 1467a(i)(2)-$32,500.
    (ii) 12 U.S.C. 1467a(i)(3)-$32,500.
    (12) 12 U.S.C. 1467a(r):
    (i) 12 U.S.C. 1467a(r)(1)-$ 2,200.
    (ii) 12 U.S.C. 1467a(r)(2)-$32,500.
    (iii) 12 U.S.C. 1467a(r)(3)-$1,375,000.

[73 FR 58032, Oct. 6, 2008, as amended at 76 FR 56604, Sept. 13, 2011]



Subpart D_Rules and Procedures Applicable to Suspension or Removal of an 
    Institution-Affiliated Party Where a Felony is Charged or Proven



Sec. 263.70  Purpose and scope.

    The rules and procedures set forth in this subpart apply to informal 
hearings afforded to any institution-affiliated party for whom the Board 
is the appropriate regulatory agency, who has been suspended or removed 
from office or prohibited from further participation in any manner in 
the conduct of the institution's affairs by a notice or order issued by 
the Board upon the grounds set forth in section 8(g) of the FDIA (12 
U.S.C. 1818(g)).



Sec. 263.71  Notice or order of suspension, removal, or prohibition.

    (a) Grounds. The Board may suspend an institution-affiliated party 
from office or prohibit an institution-affiliated party from further 
participation in any manner in the conduct of an institution's affairs 
when the person is charged in any information, indictment, or complaint 
authorized by a

[[Page 296]]

United States attorney with the commission of, or participation in, a 
crime involving dishonesty or breach of trust that is punishable by 
imprisonment for a term exceeding one year under State or Federal law. 
The Board may remove an institution-affiliated party from office or 
prohibit an institution-affiliated party from further participation in 
any manner in the conduct of an institution's affairs when the person is 
convicted of such an offense and the conviction is not subject to 
further direct appellate review. The Board may suspend or remove an 
institution-affiliated party or prohibit an institution-affiliated party 
from participation in an institution's affairs in these circumstances if 
the Board finds that continued service to the financial institution or 
participation in its affairs by the institution-affiliated party may 
pose a threat to the interests of the institution's depositors or may 
threaten to impair public confidence in the financial institution.
    (b) Contents. The Board commences a suspension, removal, or 
prohibition action under this subpart with the issuance, and service 
upon an institution-affiliated party, of a notice of suspension from 
office, or order of removal from office, or notice or order of 
prohibition from participation in the financial institution's affairs. 
Such a notice or order shall indicate the basis for the suspension, 
removal, or prohibition and shall inform the institution-affiliated 
party of the right to request in writing, within 30 days of service of 
the notice or order, an opportunity to show at an informal hearing that 
continued service to, or participation in the conduct of the affairs of, 
the financial institution does not and is not likely to pose a threat to 
the interests of the financial institution's depositors or threaten to 
impair public confidence in the financial institution. Failure to file a 
timely request for an informal hearing shall be deemed to be a waiver of 
the right to request such a hearing. A notice of suspension or 
prohibition shall remain in effect until the criminal charge upon which 
the notice is based is finally disposed of or until the notice is 
terminated by the Board.
    (c) Service. The notice or order shall be served upon the affiliated 
financial institution concerned, whereupon the institution-affiliated 
party shall immediately cease service to the financial institution or 
further participation in any manner in the conduct of the affairs of the 
financial institution. A notice or order of suspension, removal, or 
prohibition may be served by any of the means authorized for service 
under Sec. 263.11(c)(2) of subpart A.



Sec. 263.72  Request for informal hearing.

    An institution-affiliated party who is suspended or removed from 
office or prohibited from participation in the institution's affairs may 
request an informal hearing within 30 days of service of the notice or 
order. The request shall be filed in writing with the Secretary, Board 
of Governors of the Federal Reserve System, Washington, DC 20551. The 
request shall state with particularity the relief desired and the 
grounds therefor and shall include, when available, supporting evidence 
in the form of affidavits. If the institution-affiliated party desires 
to present oral testimony or witnesses at the hearing, the institution-
affiliated party must include a request to do so with the request for 
informal hearing. The request to present oral testimony or witnesses 
shall specify the names of the witnesses and the general nature of their 
expected testimony.



Sec. 263.73  Order for informal hearing.

    (a) Issuance of hearing order. Upon receipt of a timely request for 
an informal hearing, the Secretary shall promptly issue an order 
directing an informal hearing to commence within 30 days of the receipt 
of the request. At the request of the institution-affiliated party, the 
Secretary may order the hearing to commence at a time more than 30 days 
after the receipt of the request for hearing. The hearing shall be held 
in Washington, DC, or at such other place as may be designated by the 
Secretary, before presiding officers designated by the Secretary to 
conduct the hearing. The presiding officers normally will include 
representatives from the Board's Legal Division and the Division of 
Banking Supervision and Regulation and from the appropriate Federal 
Reserve Bank.

[[Page 297]]

    (b) Waiver of oral hearing. A institution-affiliated party may waive 
in writing his or her right to an oral hearing and instead elect to have 
the matter determined by the Board solely on the basis of written 
submissions.
    (c) Hearing procedures. (1) The institution-affiliated party may 
appear at the hearing personally, through counsel, or personally with 
counsel. The institution-affiliated party shall have the right to 
introduce relevant written materials and to present an oral argument. 
The institution-affiliated party may introduce oral testimony and 
present witnesses only if expressly authorized by the Board or the 
Secretary. Except as provided in Sec. 263.11, the adjudicative 
procedures of the Administrative Procedure Act (5 U.S.C. 554-557) and of 
subpart A of this part shall not apply to the informal hearing ordered 
under this subpart unless the Board orders that subpart A of this part 
applies.
    (2) The informal hearing shall be recorded and a transcript shall be 
furnished to the institution-affiliated party upon request and after the 
payment of the cost thereof. Witnesses need not be sworn, unless 
specifically requested by a party or the presiding officers. The 
presiding officers may ask questions of any witness.
    (3) The presiding officers may order the record to be kept open for 
a reasonable period following the hearing (normally five business days), 
during which time additional submissions to the record may be made. 
Thereafter, the record shall be closed.
    (d) Authority of presiding officers. In the course of or in 
connection with any proceeding under this subpart, the Board or the 
presiding officers are authorized to administer oaths and affirmations, 
to take or cause to be taken depositions, to issue, quash or modify 
subpoenas and subpoenas duces tecum, and, for the enforcement thereof, 
to apply to an appropriate United States district court. All action 
relating to depositions and subpoenas shall be in accordance with the 
rules provided in Sec. Sec. 263.34 and 263.53.
    (e) Recommendation of presiding officers. The presiding officers 
shall make a recommendation to the Board concerning the notice or order 
of suspension, removal, or prohibition within 20 calendar days following 
the close of the record on the hearing.



Sec. 263.74  Decision of the Board.

    (a) Within 60 days following the close of the record on the hearing, 
or receipt of written submissions where a hearing has been waived, the 
Board shall notify the institution-affiliated party whether the notice 
of suspension or prohibition will be continued, terminated, or otherwise 
modified, or whether the order of removal or prohibition will be 
rescinded or otherwise modified. The notification shall contain a 
statement of the basis for any adverse decision by the Board. In the 
case of a decision favorable to the institution-affiliated party, the 
Board shall take prompt action to rescind or otherwise modify the order 
of suspension, removal or prohibition.
    (b) In deciding the question of suspension, removal, or prohibition 
under this subpart, the Board shall not rule on the question of the 
guilt or innocence of the individual with respect to the crime with 
which the individual has been charged.



   Subpart E_Procedures for Issuance and Enforcement of Directives To 
                        Maintain Adequate Capital



Sec. 263.80  Purpose and scope.

    This subpart establishes procedures under which the Board may issue 
a directive or take other action to require a state member bank, bank 
holding company, or a savings and loan holding company to achieve and 
maintain adequate capital.

[76 FR 56604, Sept. 13, 2011]



Sec. 263.81  Definitions.

    (a) Bank holding company means any company that controls a bank as 
defined in section 2 of the BHC Act, 12 U.S.C. 1841, and in the Board's 
Regulation Y (12 CFR 225.2(b)) or any direct or indirect subsidiary 
thereof other than a bank subsidiary as defined in section 2(c) of the 
BHC Act, 12 U.S.C. 1841(c), and in the Board's Regulation Y (12 CFR 
225.2(a)).

[[Page 298]]

    (b) Capital Adequacy Guidelines means those guidelines for bank 
holding companies and state member banks contained in appendices A and D 
to the Board's Regulation Y (12 CFR part 225), and in appendix A to the 
Board's Regulation H (12 CFR part 208), or any succeeding capital 
guidelines promulgated by the Board.
    (c) Directive means a final order issued by the Board:
    (1) Pursuant to ILSA (12 U.S.C. 3907(b)(2)) requiring a state member 
bank or bank holding company to increase capital to or maintain capital 
at the minimum level set forth in the Board's Capital Adequacy 
Guidelines or as otherwise established under procedures described in 
Sec. 263.85; or
    (2) Pursuant to HOLA (12 U.S.C. 1467a(g)(1)) requiring a savings and 
loan holding company to increase capital to or maintain capital at a 
certain level.
    (d) State member bank means any state-chartered bank that is a 
member of the Federal Reserve System.
    (e) Savings and loan holding company means any company that controls 
a savings association as defined in section 10 of the HOLA, 12 U.S.C. 
1467a, and in the Board's Regulation LL (12 CFR 238.2) or any direct or 
indirect subsidiary thereof other than a savings association subsidiary 
as defined in section 10 of the HOLA, 12 U.S.C. 1467a, and in the 
Board's Regulation LL (12 CFR 238.2).

[56 FR 38052, Aug. 9, 1991, as amended at 76 FR 56604, Sept. 13, 2011]



Sec. 263.82  Establishment of minimum capital levels.

    The Board has established minimum capital levels for state member 
banks and bank holding companies in its Capital Adequacy Guidelines. The 
Board may set higher capital levels as necessary and appropriate for a 
particular state member bank or bank holding company based upon its 
financial condition, managerial resources, prospects, or similar 
factors, pursuant to the procedures set forth in Sec. 263.85 of this 
subpart.



Sec. 263.83  Issuance of capital directives.

    (a) Notice of intent to issue directive. If a state member bank or 
bank holding company is operating with less than the minimum level of 
capital established in the Board's Capital Adequacy Guidelines, or as 
otherwise established under the procedures described in Sec. 263.85, or 
if the Board has determined that the current capital level of a savings 
and loan holding company is not adequate, the Board may issue and serve 
upon such state member bank, bank holding company, or savings and loan 
holding company written notice of the Board's intent to issue a 
directive to require the bank, bank holding company, or savings and loan 
holding company to achieve and maintain adequate capital within a 
specified time period.
    (b) Contents of notice. The notice of intent to issue a directive 
shall include:
    (1) The required minimum level of capital to be achieved or 
maintained by the institution;
    (2) Its current level of capital;
    (3) The proposed increase in capital needed to meet the minimum 
requirements;
    (4) The proposed date or schedule for meeting these minimum 
requirements;
    (5) When deemed appropriate, specific details of a proposed plan for 
meeting the minimum capital requirements; and
    (6) The date for a written response by the bank or bank holding 
company to the proposed directive, which shall be at least 14 days from 
the date of issuance of the notice unless the Board determines a shorter 
period is necessary because of the financial condition of the bank or 
bank holding company.
    (c) Response to notice. The bank or bank holding company may file a 
written response to the notice within the time period set by the Board. 
The response may include:
    (1) An explanation why a directive should not be issued;
    (2) Any proposed modification of the terms of the directive;
    (3) Any relevant information, mitigating circumstances, 
documentation or other evidence in support of the institution's position 
regarding the proposed directive; and
    (4) The institution's plan for attaining the required level of 
capital.
    (d) Failure to file response. Failure by the bank or bank holding 
company to

[[Page 299]]

file a written response to the notice of intent to issue a directive 
within the specified time period shall constitute a waiver of the 
opportunity to respond and shall constitute consent to the issuance of 
such directive.
    (e) Board consideration of response. After considering the response 
of the bank or bank holding company, the Board may:
    (1) Issue the directive as originally proposed or in modified form;
    (2) Determine not to issue a directive and so notify the bank or 
bank holding company; or
    (3) Seek additional information or clarification of the response by 
the bank or bank holding company.
    (f) Contents of directive. Any directive issued by the Board may 
order the bank or bank holding company to:
    (1) Achieve or maintain the minimum capital requirement established 
pursuant to the Board's Capital Adequacy Guidelines or the procedures in 
Sec. 263.85 of this subpart by a certain date;
    (2) Adhere to a previously submitted plan or submit for approval and 
adhere to a plan for achieving the minimum capital requirement by a 
certain date;
    (3) Take other specific action as the Board directs to achieve the 
minimum capital levels, including requiring a reduction of assets or 
asset growth or restriction on the payment of dividends; or
    (4) Take any combination of the above actions.
    (g) Request for reconsideration of directive. Any state member bank 
or bank holding company, upon a change in circumstances, may request the 
Board to reconsider the terms of a directive and may propose changes in 
the plan under which it is operating to meet the required minimum 
capital level. The directive and plan continue in effect while such 
request is pending before the Board.

[56 FR 38052, Aug. 9, 1991, as amended at 76 FR 56604, Sept. 13, 2011]



Sec. 263.84  Enforcement of directive.

    (a) Judicial and administrative remedies. (1) Whenever a bank or 
bank holding company fails to follow a directive issued under this 
subpart, or to submit or adhere to a capital adequacy plan as required 
by such directive, the Board may seek enforcement of the directive, 
including the capital adequacy plan, in the appropriate United States 
district court, pursuant to section 908 (b)(2)(B)(ii) of ILSA (12 U.S.C. 
3907(b)(2)(B)(ii)) and to section 8(i) of the FDIA (12 U.S.C. 1818(i)), 
in the same manner and to the same extent as if the directive were a 
final cease-and-desist order. Whenever a savings and loan holding 
company fails to follow a directive issued under this subpart, or to 
submit or adhere to a capital adequacy plan as required by such 
directive, the Board may seek enforcement of the directive, including 
the capital adequacy plan, in the proper United States district court, 
or the United States court of any territory or other place subject to 
the jurisdiction of the United States, pursuant to section 10(g)(4) of 
HOLA (12 U.S.C. 1567a(g)(4)).
    (2) The Board, pursuant to section 910(d) of ILSA (12 U.S.C. 
3909(d)), may also assess civil money penalties for violation of the 
directive against any bank or bank holding company and any institution-
affiliated party of the bank or bank holding company, in the same manner 
and to the same extent as if the directive were a final cease-and-desist 
order. The Board, pursuant to section 10(i) (12 U.S.C. 1467a(i)), may 
also assess civil money penalties for violation of the directive against 
any savings and loan holding company and any institution-affiliated 
party of the savings and loan holding company, in the same manner and to 
the same extent as if the directive were a final cease-and-desist order.
    (b) Other enforcement actions. A directive may be issued separately, 
in conjunction with, or in addition to any other enforcement actions 
available to the Board, including issuance of cease-and-desist orders, 
the approval or denial of applications or notices, or any other actions 
authorized by law.
    (c) Consideration in application proceedings. In acting upon any 
application or notice submitted to the Board pursuant to any statute 
administered by the Board, the Board may consider the progress of a 
state member bank, bank holding company, or savings and

[[Page 300]]

loan holding company or any subsidiary thereof in adhering to any 
directive or capital adequacy plan required by the Board pursuant to 
this subpart, or by any other appropriate banking supervisory agency 
pursuant to ILSA. The Board shall consider whether approval or a notice 
of intent not to disapprove would divert earnings, diminish capital, or 
otherwise impede the bank, bank holding company, or savings and loan 
holding company in achieving its required minimum capital level or 
complying with its capital adequacy plan.

[56 FR 38052, Aug. 9, 1991, as amended at 76 FR 56604, Sept. 13, 2011]



Sec. 263.85  Establishment of increased capital level for specific
institutions.

    (a) Establishment of capital levels for specific institutions. The 
Board may establish a capital level higher than the minimum specified in 
the Board's Capital Adequacy Guidelines for a specific bank or bank 
holding company pursuant to:
    (1) A written agreement or memorandum of understanding between the 
Board or the appropriate Federal Reserve Bank and the bank or bank 
holding company;
    (2) A temporary or final cease-and-desist order issued pursuant to 
section 8(b) or (c) of the FDIA (12 U.S.C. 1818(b) or (c));
    (3) A condition for approval of an application or issuance of a 
notice of intent not to disapprove a proposal;
    (4) Or other similar means; or
    (5) The procedures set forth in paragraph (b) of this section.
    (b) Procedure to establish higher capital requirement --(1) Notice. 
When the Board determines that capital levels above those in the Board's 
Capital Adequacy Guidelines may be necessary and appropriate for a 
particular bank or bank holding company under the circumstances, or when 
the Board determines that the current capital level of a savings and 
loan holding company is not adequate, the Board shall give the bank or 
bank holding company notice of the proposed higher capital requirement 
and shall permit the bank, bank holding company, or savings and loan 
holding company an opportunity to comment upon the proposed capital 
level, whether it should be required and, if so, under what time 
schedule. The notice shall contain the Board's reasons for proposing a 
higher level of capital.
    (2) Response. The bank, bank holding company, or savings and loan 
holding company shall be allowed at least 14 days to respond, unless the 
Board determines that a shorter period is necessary because of the 
financial condition of the bank, bank holding company, or savings and 
loan holding company. Failure by the bank, bank holding company, or 
savings and loan holding company to file a written response to the 
notice within the time set by the Board shall constitute a waiver of the 
opportunity to respond and shall constitute consent to issuance of a 
directive containing the required minimum capital level.
    (3) Board decision. After considering the response of the 
institution, the Board may issue a written directive to the bank, bank 
holding company, or savings and loan holding company setting an 
appropriate capital level and the date on which this capital level will 
become effective. The Board may require the bank, bank holding company, 
or savings and loan holding company to submit and adhere to a plan for 
achieving such higher capital level as the Board may set.
    (4) Enforcement of higher capital level. The Board may enforce the 
capital level established pursuant to the procedures described in this 
section and any plan submitted to achieve that capital level through the 
procedures set forth in Sec. 263.84 of this subpart.

[56 FR 38052, Aug. 9, 1991, as amended at 76 FR 56604, Sept. 13, 2011]



                   Subpart F_Practice Before the Board



Sec. 263.90  Scope.

    This subpart prescribes rules relating to general practice before 
the Board on one's own behalf or in a representational capacity, 
including the circumstances under which disciplinary sanctions--censure, 
suspension, or debarment--may be imposed upon persons appearing in a 
representational

[[Page 301]]

capacity, including attorneys and accountants, but not including 
employees of the Board. These disciplinary sanctions, which continue in 
effect beyond the duration of a specific proceeding, supplement the 
provisions of Sec. 263.6(b) of subpart A, which address control of a 
specific proceeding.



Sec. 263.91  Censure, suspension or debarment.

    The Board may censure an individual or suspend or debar such 
individual from practice before the Board if he or she engages, or has 
engaged, in conduct warranting sanctions as set forth in Sec. 263.94; 
refuses to comply with the rules and regulations in this part; or with 
intent to defraud in any manner, willfully and knowingly deceives, 
misleads, or threatens any client or prospective client. The suspension 
or debarment of an individual shall be initiated only upon a finding by 
the Board that the conduct that forms the basis for the disciplinary 
action is egregious.



Sec. 263.92  Definitions.

    (a) As used in this subpart, the following terms shall have the 
meaning given in this section unless the context otherwise requires.
    (b)(1) Practice before the Board includes any matters connected with 
presentations to the Board or to any of its officers or employees 
relating to a client's rights, privileges or liabilities under laws or 
regulations administered by the Board. Such matters include, but are not 
limited to, the preparation of any statement, opinion or other paper or 
document by an attorney, accountant, or other licensed professional 
which is filed with, or submitted to, the Board, on behalf of another 
person in, or in connection with, any application, notification, report 
or document; the representation of a person at conferences, hearings and 
meetings; and the transaction of other business before the Board on 
behalf of another person.
    (2) Practice before the Board does not include work prepared for an 
institution solely at its request for use in the ordinary course of its 
business.
    (c) Attorney means any individual who is a member in good standing 
of the bar of the highest court of any state, possession, territory, 
commonwealth, or the District of Columbia.
    (d) Accountant means any individual who is duly qualified to 
practice as a certified public accountant or a public accountant in any 
state, possession, territory, commonwealth, or the District of Columbia.



Sec. 263.93  Eligibility to practice.

    (a) Attorneys. Any attorney who is qualified to practice as an 
attorney and is not currently under suspension or debarment pursuant to 
this subpart may practice before the Board.
    (b) Accountants. Any accountant who is qualified to practice as a 
certified public accountant or public accountant and is not currently 
under suspension or debarment by the Board may practice before the 
Board.



Sec. 263.94  Conduct warranting sanctions.

    Conduct for which an individual may be censured, debarred or 
suspended from practice before the Board includes, but is not limited 
to:
    (a) Willfully or recklessly violating or willfully or recklessly 
aiding and abetting the violation of any provision of the Federal 
banking or applicable securities laws or the rules and regulations 
thereunder or conviction of any offense involving dishonesty or breach 
of trust;
    (b) Knowingly or recklessly giving false or misleading information, 
or participating in any way in the giving of false information to the 
Board or to any Board officer or employee, or to any tribunal authorized 
to pass upon matters administered by the Board in connection with any 
matter pending or likely to be pending before it. The term 
``information'' includes facts or other statements contained in 
testimony, financial statements, applications, affidavits, declarations, 
or any other document or written or oral statement;
    (c) Directly or indirectly attempting to influence, or offering or 
agreeing to attempt to influence, the official action of any officer or 
employee of the Board by the use of threats, false accusations, duress 
or coercion, by the offer of any special inducement or promise of 
advantage or by the bestowing of any gift, favor, or thing of value;

[[Page 302]]

    (d) Disbarment or suspension from practice as an attorney, or 
debarment or suspension from practice as a certified public accountant 
or public accountant, by any duly constituted authority of any state, 
possession, commonwealth, or the District of Columbia for the conviction 
of a felony or misdemeanor involving personal dishonesty or breach of 
trust in matters relating to the supervisory responsibilities of the 
Board, where the conviction has not been reversed on appeal;
    (e) Knowingly aiding or abetting another individual to practice 
before the Board during that individual's period of suspension, 
debarment, or ineligibility;
    (f) Contemptuous conduct in connection with practice before the 
Board, and knowingly making false accusations and statements, or 
circulating or publishing malicious or libelous matter;
    (g) Suspension or debarment from practice before the OCC, the FDIC, 
the Office of Thrift Supervision, the Securities and Exchange 
Commission, the NCUA, or any other Federal agency based on matters 
relating to the supervisory responsibilities of the Board;
    (h) Willful or knowing violation of any of the regulations contained 
in this part.

[56 FR 38052, Aug. 9, 1991, as amended at 68 FR 48267, Aug. 13, 2003; 76 
FR 56605, Sept. 13, 2011]



Sec. 263.95  Initiation of disciplinary proceeding.

    (a) Receipt of information. An individual, including any employee of 
the Board, who has reason to believe that an individual practicing 
before the Board in a representative capacity has engaged in any conduct 
that would serve as a basis for censure, suspension or debarment under 
Sec. 263.94, may make a report thereof and forward it to the Board.
    (b) Censure without formal proceeding. Upon receipt of information 
regarding an individual's qualification to practice before the Board, 
the Board may, after giving the individual notice and opportunity to 
respond, censure such individual.
    (c) Institution of formal disciplinary proceeding. When the Board 
has reason to believe that any individual who practices before the Board 
in a representative capacity has engaged in conduct that would serve as 
a basis for censure, suspension or debarment under Sec. 263.94 the 
Board may, after giving the individual notice and opportunity to 
respond, institute a formal disciplinary proceeding against such 
individual. The proceeding shall be conducted pursuant to Sec. 263.97 
and shall be initiated by a complaint issued by the Board that names the 
individual as a respondent. Except in cases when time, the nature of the 
proceeding, or the public interest do not permit, a proceeding under 
this section shall not be instituted until the respondent has been 
informed, in writing, of the facts or conduct which warrant institution 
of a proceeding and the respondent has been accorded the opportunity to 
comply with all lawful requirements or take whatever action may be 
necessary to remedy the conduct that is the basis for the initiation of 
the proceeding.



Sec. 263.96  Conferences.

    (a) General. The Board's staff may confer with a proposed respondent 
concerning allegations of misconduct or other grounds for censure, 
debarment or suspension, regardless of whether a proceeding for 
debarment or suspension has been instituted. If a conference results in 
a stipulation in connection with a proceeding in which the individual is 
the respondent, the stipulation may be entered in the record at the 
request of either party to the proceeding.
    (b) Resignation or voluntary suspension. In order to avoid the 
institution of, or a decision in, a debarment or suspension proceeding, 
a person who practices before the Board may consent to suspension from 
practice. At the discretion of the Board, the individual may be 
suspended or debarred in accordance with the consent offered.



Sec. 263.97  Proceedings under this subpart.

    Except as otherwise provided in this subpart, any hearing held under 
this subpart shall be held before an administrative law judge of the 
OFIA pursuant to procedures set forth in subparts A and B of this part. 
The Board shall

[[Page 303]]

appoint a person to represent the Board in the hearing. Any person 
having prior involvement in the matter which is the basis for the 
suspension or debarment proceeding shall be disqualified from 
representing the Board in the hearing. The hearing shall be closed to 
the public unless the Board, sua sponte or on the request of a party, 
otherwise directs. The administrative law judge shall refer a 
recommended decision to the Board, which shall issue the final decision 
and order. In its final decision and order, the Board may censure, debar 
or suspend an individual, or take such other disciplinary action as the 
Board deems appropriate.



Sec. 263.98  Effect of suspension, debarment or censure.

    (a) Debarment. If the final order against the respondent is for 
debarment, the individual will not thereafter be permitted to practice 
before the Board unless otherwise permitted to do so by the Board 
pursuant to Sec. 263.99 of this subpart.
    (b) Suspension. If the final order against the respondent is for 
suspension, the individual will not thereafter be permitted to practice 
before the Board during the period of suspension.
    (c) Censure. If the final order against the respondent is for 
censure, the individual may be permitted to practice before the Board, 
but such individual's future representations may be subject to 
conditions designed to promote high standards of conduct. If a written 
letter of censure is issued, a copy will be maintained in the Board's 
files.
    (d) Notice of debarment or suspension. Upon the issuance of a final 
order for suspension or debarment, the Board shall give notice of the 
order to appropriate officers and employees of the Board, to interested 
departments and agencies of the Federal Government, and to the 
appropriate authorities of the State in which any debarred or suspended 
individual is or was licensed to practice.



Sec. 263.99  Petition for reinstatement.

    The Board may entertain a petition for reinstatement from any person 
debarred from practice before the Board. The Board shall grant 
reinstatement only if the Board finds that the petitioner is likely to 
act in accordance with the regulations in this part, and that granting 
reinstatement would not be contrary to the public interest. Any request 
for reinstatement shall be limited to written submissions unless the 
Board, in its discretion, affords the petitioner an informal hearing.



 Subpart G_Rules Regarding Claims Under the Equal Access to Justice Act



Sec. 263.100  Authority and scope.

    This subpart implements the provisions of the Equal Access to 
Justice Act (5 U.S.C. 504) as they apply to formal adversary 
adjudications before the Board. The types of proceedings covered by this 
subpart are listed in Sec. Sec. 263.1 and 263.50.



Sec. 263.101  Standards for awards.

    A respondent in a covered proceeding that prevails on the merits of 
that proceeding against the Board, and that is eligible under this 
subpart as defined in Sec. 263.103, may receive an award for fees and 
expenses incurred in the proceeding unless the position of the Board 
during the proceeding was substantially justified or special 
circumstances make an award unjust. The position of the Board includes, 
in addition to the position taken by the Board in the adversary 
proceeding, the action or failure to act by the Board upon which the 
adversary proceeding was based. An award will be reduced or denied if 
the applicant has unduly or unreasonably protracted the proceedings.



Sec. 263.102  Prevailing party.

    Only an eligible applicant that prevailed on the merits of an 
adversary proceeding may qualify for an award under this subpart.



Sec. 263.103  Eligibility of applicants.

    (a) General rule. To be eligible for an award under this subpart, an 
applicant must have been named as a party to the adjudicatory proceeding 
and show that it meets all other conditions of eligibility set forth in 
paragraphs (b) and (c) of this section.
    (b) Types of eligible applicant. An applicant is eligible for an 
award only if

[[Page 304]]

it meets at least one of the following descriptions:
    (1) An individual with a net worth of not more than $2 million at 
the time the adversary adjudication was initiated;
    (2) Any sole owner of an unincorporated business, or any 
partnership, corporation, associations, unit of local government or 
organization, the net worth of which did not exceed $7,000,000 and which 
did not have more than 500 employees at the time the adversary 
adjudication was initiated;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees at the time the adversary proceeding 
was initiated; or
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees at the time the adversary proceeding was initiated.
    (c) Factors to be considered. In determining the eligibility of an 
applicant:
    (1) An applicant who owns an unincorporated business shall be 
considered as an individual rather than a sole owner of an 
unincorporated business if the issues on which he or she prevailed are 
related to personal interests rather than to business interests.
    (2) An applicant's net worth includes the value of any assets 
disposed of for the purpose of meeting an eligibility standard and 
excludes the value of any obligations incurred for this purpose. 
Transfers of assets or obligations incurred for less than reasonably 
equivalent value will be presumed to have been made for this purpose.
    (3) The net worth of a financial institution shall be established by 
the net worth information reported in conformity with applicable 
instructions and guidelines on the financial institution's financial 
report to its supervisory agency for the last reporting date before the 
initiation of the adversary proceeding. A bank holding company's and a 
savings and loan holding company's net worth will be considered on a 
consolidated basis even if the bank holding company or the savings and 
loan holding company is not required to file its regulatory reports to 
the Board on a consolidated basis.
    (4) The employees of an applicant include all those persons who were 
regularly providing services for remuneration for the applicant, under 
its direction and control, on the date the adversary proceeding was 
initiated. Part-time employees are counted on a proportional basis.
    (5) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. As used 
in this subpart, affiliates are: Individuals, corporations, and entities 
that directly or indirectly or acting through one or more entities 
control at least 25% of the voting shares of the applicant, and 
corporations and entities of which the applicant directly or indirectly 
owns or controls at least 25% of the voting shares. The Board may 
determine, in light of the actual relationship among the affiliated 
entities, that aggregation with regard to one or more of the applicant's 
affiliates would be unjust and contrary to the purposes of this subpart 
and decline to aggregate the net worth and employees of such affiliate; 
alternatively, the Board may determine that financial relationships of 
the applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.

[56 FR 38052, Aug. 9, 1991, as amended at 76 FR 56605, Sept. 13, 2011]



Sec. 263.104  Application for awards.

    (a) Time to file. An application and any other pleading or document 
related to the application may be filed with the Board whenever the 
applicant has prevailed in the proceeding within 30 days after service 
of the final order of the Board disposing of the proceeding.
    (b) Contents. An application for an award of fees and expenses under 
this subpart shall contain:
    (1) The name of the applicant and an identification of the 
proceeding;
    (2) A showing that the applicant has prevailed, and an 
identification of the way in which the applicant believes that the 
position of the Board in the proceeding was not substantially justified;

[[Page 305]]

    (3) If the applicant is not an individual, a statement of the number 
of its employees on the date the proceeding was initiated;
    (4) A description of any affiliated individuals or entities, as 
defined in Sec. 263.103(c)(5), or a statement that none exist;
    (5) A declaration that the applicant, together with any affiliates, 
had a net worth not more than the maximum set forth in Sec. 263.103(b) 
as of the date the proceeding was initiated, supported by a net worth 
statement conforming to the requirements of Sec. 263.105;
    (6) A statement of the amount of fees and expenses for which an 
award is sought conforming to Sec. 263.107; and
    (7) Any other matters that the applicant wishes the Board to 
consider in determining whether and in what amount an award should be 
made.
    (c) Verification. The application shall be signed by the applicant 
or an authorized officer of or attorney for the applicant. It shall also 
contain or be accompanied by a written verification under oath or under 
penalty of perjury that the information provided in the application and 
supporting documents is true and correct.
    (d) Service. The application and related documents shall be served 
on all parties to the adversary proceeding in accordance with Sec. 
263.11, except that statements of net worth shall be served only on 
counsel for the Board.
    (e) Presiding officer. Upon receipt of an application, the Board 
shall, if feasible, refer the matter to the administrative law judge who 
heard the underlying adversary proceeding.



Sec. 263.105  Statement of net worth.

    (a) General rule. A statement of net worth shall be filed with the 
application for an award of fees. The statement shall reflect the net 
worth of the applicant and all affiliates of the applicant, as specified 
in Sec. 263.103(c)(5). In all cases, the administrative law judge or 
the Board may call for additional information needed to establish the 
applicant's net worth as of the initiation of the proceeding.
    (b) Contents. (1) Except as otherwise provided herein, the statement 
of net worth may be in any form convenient to the applicant which fully 
discloses all the assets and liabilities of the applicant and all the 
assets and liabilities of its affiliates, as of the time of the 
initiation of the adversary adjudication. Unaudited financial statements 
are acceptable for individual applicants as long as the statement 
provides a reliable basis for evaluation, unless the administrative law 
judge or the Board otherwise requires. Financial statements or reports 
filed with or reported to a Federal or State agency, prepared before the 
initiation of the adversary proceeding for other purposes, and accurate 
as of a date not more than three months prior to the initiation of the 
proceeding, shall be acceptable in establishing net worth as of the time 
of the initiation of the proceeding, unless the administrative law judge 
or the Board otherwise requires.
    (2) In the case of applicants or affiliates that are not banks, net 
worth shall be considered for the purposes of this subpart to be the 
excess of total assets over total liabilities, as of the date the 
underlying proceeding was initiated, except as adjusted under Sec. 
263.103(c)(5). The net worth of a bank holding company or a savings and 
loan holding company shall be considered on a consolidated basis. Assets 
and liabilities of individuals shall include those beneficially owned.
    (3) If the applicant or any of its affiliates is a bank or a savings 
association, the portion of the statement of net worth which relates to 
the bank or the savings association shall consist of a copy of the 
bank's or a savings association's last Consolidated Report of Condition 
and Income filed before the initiation of the adversary adjudication. 
Net worth shall be considered for the purposes of this subpart to be the 
total equity capital (or, in the case of mutual savings banks or mutual 
savings associations, the total surplus accounts) as reported, in 
conformity with applicable instructions and guidelines, on the bank's or 
the savings association's Consolidated Report of Condition and Income 
filed for the last reporting date before the initiation of the 
proceeding.
    (c) Statement confidential. Unless otherwise ordered by the Board or 
required by law, the statement of net worth shall be for the 
confidential use of the

[[Page 306]]

Board, counsel for the Board, and the administrative law judge.

[56 FR 38052, Aug. 9, 1991, as amended at 76 FR 56605, Sept. 13, 2011]



Sec. 263.106  Measure of awards.

    (a) General rule. Awards shall be based on rates customarily charged 
by persons engaged in the business of acting as attorneys, agents, and 
expert witnesses, provided that no award under this subpart for the fee 
of an attorney or agent shall exceed $75 per hour. No award to 
compensate an expert witness shall exceed the highest rate at which the 
Board pays expert witnesses. An award may include the reasonable 
expenses of the attorney, agent, or expert witness as a separate item, 
if the attorney, agent, or expert witness ordinarily charges clients 
separately for such expenses.
    (b) Determination of reasonableness of fees. In determining the 
reasonableness of the fee sought for an attorney, agent, or expert 
witness, subject to the limits set forth above, the administrative law 
judge shall consider the following:
    (1) If the attorney, agent, or expert witness is in private 
practice, his or her customary fee for like services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent, or expert witness ordinarily performs 
services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (c) Awards for studies. The reasonable cost of any study, analysis, 
test, project, or similar matter prepared on behalf of an applicant may 
be awarded to the extent that the charge for the service does not exceed 
the prevailing rate payable for similar services, and the study or other 
matter was necessary solely for preparation of the applicant's case and 
not otherwise required by law or sound business or financial practice.



Sec. 263.107  Statement of fees and expenses.

    The application shall be accompanied by a statement fully 
documenting the fees and expenses for which an award is sought. A 
separate itemized statement shall be submitted for each professional 
firm or individual whose services are covered by the application, 
showing the hours spent in work in connection with the proceeding by 
each individual, a description of the specific services performed, the 
rate at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services performed. The administrative law judge or the Board may 
require the applicant to provide vouchers, receipts, or other 
substantiation for any expenses claimed.



Sec. 263.108  Responses to application.

    (a) By counsel for the Board. (1) Within 20 days after service of an 
application, counsel for the Board may file an answer to the 
application.
    (2) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the Board's 
position. If the answer is based on any alleged facts not already in the 
record of the proceeding, the answer shall include either supporting 
affidavits or a request for further proceedings under Sec. 263.109, or 
both.
    (b) Reply to answer. The applicant may file a reply only if the 
Board has addressed in its answer any of the following issues: that the 
position of the agency was substantially justified, that the applicant 
unduly protracted the proceedings, or that special circumstances make an 
award unjust. Any reply authorized by this section shall be filed within 
15 days of service of the answer. If the reply is based on any alleged 
facts not already in the record of the proceeding, the reply shall 
include either supporting affidavits or a request for further 
proceedings under Sec. 263.109, or both.
    (c) Additional response. Additional filings in the nature of 
pleadings may be submitted only by leave of the administrative law 
judge.

[[Page 307]]



Sec. 263.109  Further proceedings.

    (a) General rule. The determination of a recommended award shall be 
made by the administrative law judge on the basis of the written record 
of the adversary adjudication, including any supporting affidavits 
submitted in connection with the application, unless, on the motion of 
either the applicant or Board counsel, or sua sponte, the administrative 
law judge or the Board orders further proceedings to amplify the record 
such as an informal conference, oral argument, additional written 
submissions, or an evidentiary hearing. Such further proceedings shall 
be held only when necessary for full and fair resolution of the issues 
arising from the application and shall be conducted promptly and 
expeditiously.
    (b) Request for further proceedings. A request for further 
proceedings under this section shall specifically identify the 
information sought or the issues in dispute and shall explain why 
additional proceedings are necessary.
    (c) Hearing. The administrative law judge shall hold an oral 
evidentiary hearing only on disputed issues of material fact which 
cannot be adequately resolved through written submissions.



Sec. 263.110  Recommended decision.

    The administrative law judge shall file with the Board a recommended 
decision on the fee application not later than 30 days after the 
submission of all pleadings and evidentiary material concerning the 
application. The recommended decision shall include written proposed 
findings and conclusions on the applicant's eligibility and its status 
as a prevailing party and, if applicable, an explanation of the reasons 
for any difference between the amount requested and the amount of the 
recommended award. The recommended decision shall also include, if at 
issue, proposed findings as to whether the Board's position was 
substantially justified, whether the applicant unduly protracted the 
proceedings, or whether special circumstances make an award unjust. The 
administrative law judge shall file the record of the proceeding on the 
fee application upon the filing of the recommended decision and, at the 
same time, serve upon each party a copy of the recommended decision, 
findings, conclusions, and proposed order.



Sec. 263.111  Action by the Board.

    (a) Exceptions to recommended decision. Within 20 days after service 
of the recommended decision, findings, conclusions, and proposed order, 
the applicant or counsel for the Board may file written exceptions 
thereto. A supporting brief may also be filed.
    (b) Decision by the Board. The Board shall render its decision 
within 90 days after it has notified the parties that the matter has 
been received for decision. The Board shall serve copies of the decision 
and order of the Board upon the parties. Judicial review of the decision 
and order may be obtained as provided in 5 U.S.C. 504(c)(2).



 Subpart H_Issuance and Review of Orders Pursuant to Prompt Corrective 
         Action Provisions of the Federal Deposit Insurance Act

    Source: 57 FR 44888, Sept. 29, 1992, unless otherwise noted.



Sec. 263.201  Scope.

    (a) The rules and procedures set forth in this subpart apply to 
state member banks, companies that control state member banks or are 
affiliated with such banks, and senior executive officers and directors 
of state member banks that are subject to the provisions of section 38 
of the Federal Deposit Insurance Act (section 38) and subpart D of part 
208 of this chapter.
    (b) [Reserved]

[57 FR 44888, Sept. 29, 1992, as amended at 63 FR 58621, Nov. 2, 1998]



Sec. 263.202  Directives to take prompt regulatory action.

    (a) Notice of intent to issue directive--(1) In general. The Board 
shall provide an undercapitalized, significantly undercapitalized, or 
critically undercapitalized state member bank or, where appropriate, any 
company that controls the bank, prior written notice of the Board's 
intention to issue a directive requiring such bank or company to take 
actions or to follow proscriptions described in section 38 that

[[Page 308]]

are within the Board's discretion to require or impose under section 38 
of the FDI Act, including sections 38(e)(5), (f)(2), (f)(3), or (f)(5). 
The bank shall have such time to respond to a proposed directive as 
provided by the Board under paragraph (c) of this section.
    (2) Immediate issuance of final directive. If the Board finds it 
necessary in order to carry out the purposes of section 38 of the FDI 
Act, the Board may, without providing the notice prescribed in paragraph 
(a)(1) of this section, issue a directive requiring a state member bank 
or any company that controls a state member bank immediately to take 
actions or to follow proscriptions described in section 38 that are 
within the Board's discretion to require or impose under section 38 of 
the FDI Act, including section 38(e)(5), (f)(2), (f)(3), or (f)(5). A 
bank or company that is subject to such an immediately effective 
directive may submit a written appeal of the directive to the Board. 
Such an appeal must be received by the Board within 14 calendar days of 
the issuance of the directive, unless the Board permits a longer period. 
The Board shall consider any such appeal, if filed in a timely matter, 
within 60 days of receiving the appeal. During such period of review, 
the directive shall remain in effect unless the Board, in its sole 
discretion, stays the effectiveness of the directive.
    (b) Contents of notice. A notice of intention to issue a directive 
shall include:
    (1) A statement of the bank's capital measures and capital levels;
    (2) A description of the restrictions, prohibitions, or affirmative 
actions that the Board proposes to impose or require;
    (3) The proposed date when such restrictions or prohibitions would 
be effective or the proposed date for completion of such affirmative 
actions; and
    (4) The date by which the bank or company subject to the directive 
may file with the Board a written response to the notice.
    (c) Response to notice--(1) Time for response. A bank or company may 
file a written response to a notice of intent to issue a directive 
within the time period set by the Board. The date shall be at least 14 
calendar days from the date of the notice unless the Board determines 
that a shorter period is appropriate in light of the financial condition 
of the bank or other relevant circumstances.
    (2) Content of response. The response should include:
    (i) An explanation why the action proposed by the Board is not an 
appropriate exercise of discretion under section 38;
    (ii) Any recommended modification of the proposed directive; and
    (iii) Any other relevant information, mitigating circumstances, 
documentation, or other evidence in support of the position of the bank 
or company regarding the proposed directive.
    (d) Board consideration of response. After considering the response, 
the Board may:
    (1) Issue the directive as proposed or in modified form;
    (2) Determine not to issue the directive and so notify the bank or 
company; or
    (3) Seek additional information or clarification of the response 
from the bank or company, or any other relevant source.
    (e) Failure to file response. Failure by a bank or company to file 
with the Board, within the specified time period, a written response to 
a proposed directive shall constitute a waiver of the opportunity to 
respond and shall constitute consent to the issuance of the directive.
    (f) Request for modification or rescission of directive. Any bank or 
company that is subject to a directive under this subpart may, upon a 
change in circumstances, request in writing that the Board reconsider 
the terms of the directive, and may propose that the directive be 
rescinded or modified. Unless otherwise ordered by the Board, the 
directive shall continue in place while such request is pending before 
the Board.



Sec. 263.203  Procedures for reclassifying a state member bank based 
on criteria other than capital.

    (a) Reclassification based on unsafe or unsound condition or 
practice--(1) Issuance of notice of proposed reclassification--(i) 
Grounds for reclassification.

[[Page 309]]

(A) Pursuant to Sec. 208.43(c) of Regulation H (12 CFR 208.43(c)), the 
Board may reclassify a well capitalized bank as adequately capitalized 
or subject an adequately capitalized or undercapitalized institution to 
the supervisory actions applicable to the next lower capital category 
if:
    (1) The Board determines that the bank is in unsafe or unsound 
condition; or
    (2) The Board deems the bank to be engaged in an unsafe or unsound 
practice and not to have corrected the deficiency.
    (B) Any action pursuant to this paragraph (a)(1)(i) shall 
hereinafter be referred to as ``reclassification.''
    (ii) Prior notice to institution. Prior to taking action pursuant to 
Sec. 208.33(c) of this chapter, the Board shall issue and serve on the 
bank a written notice of the Board's intention to reclassify the bank.
    (2) Contents of notice. A notice of intention to reclassify a bank 
based on unsafe or unsound condition shall include:
    (i) A statement of the bank's capital measures and capital levels 
and the category to which the bank would be reclassified;
    (ii) The reasons for reclassification of the bank;
    (iii) The date by which the bank subject to the notice of 
reclassification may file with the Board a written appeal of the 
proposed reclassification and a request for a hearing, which shall be at 
least 14 calendar days from the date of service of the notice unless the 
Board determines that a shorter period is appropriate in light of the 
financial condition of the bank or other relevant circumstances.
    (3) Response to notice of proposed reclassification. A bank may file 
a written response to a notice of proposed reclassification within the 
time period set by the Board. The response should include:
    (i) An explanation of why the bank is not in unsafe or unsound 
condition or otherwise should not be reclassified;
    (ii) Any other relevant information, mitigating circumstances, 
documentation, or other evidence in support of the position of the bank 
or company regarding the reclassification.
    (4) Failure to file response. Failure by a bank to file, within the 
specified time period, a written response with the Board to a notice of 
proposed reclassification shall constitute a waiver of the opportunity 
to respond and shall constitute consent to the reclassification.
    (5) Request for hearing and presentation of oral testimony or 
witnesses. The response may include a request for an informal hearing 
before the Board or its designee under this section. If the bank desires 
to present oral testimony or witnesses at the hearing, the bank shall 
include a request to do so with the request for an informal hearing. A 
request to present oral testimony or witnesses shall specify the names 
of the witnesses and the general nature of their expected testimony. 
Failure to request a hearing shall constitute a waiver of any right to a 
hearing, and failure to request the opportunity to present oral 
testimony or witnesses shall constitute a waiver of any right to present 
oral testimony or witnesses.
    (6) Order for informal hearing. Upon receipt of a timely written 
request that includes a request for a hearing, the Board shall issue an 
order directing an informal hearing to commence no later than 30 days 
after receipt of the request, unless the bank requests a later date. The 
hearing shall be held in Washington, DC or at such other place as may be 
designated by the Board, before a presiding officer(s) designated by the 
Board to conduct the hearing.
    (7) Hearing procedures. (i) The bank shall have the right to 
introduce relevant written materials and to present oral argument at the 
hearing. The bank may introduce oral testimony and present witnesses 
only if expressly authorized by the Board or the presiding officer(s). 
Neither the provisions of the Administrative Procedure Act (5 U.S.C. 
554-557) governing adjudications required by statute to be determined on 
the record nor the Uniform Rules of Practice and Procedure in subpart A 
of this part apply to an informal hearing under this section unless the 
Board orders that such procedures shall apply.
    (ii) The informal hearing shall be recorded, and a transcript shall 
be furnished to the bank upon request and payment of the cost thereof. 
Witnesses

[[Page 310]]

need not be sworn, unless specifically requested by a party or the 
presiding officer(s). The presiding officer(s) may ask questions of any 
witness.
    (iii) The presiding officer(s) may order that the hearing be 
continued for a reasonable period (normally five business days) 
following completion of oral testimony or argument to allow additional 
written submissions to the hearing record.
    (8) Recommendation of presiding officers. Within 20 calendar days 
following the date the hearing and the record on the proceeding are 
closed, the presiding officer(s) shall make a recommendation to the 
Board on the reclassification.
    (9) Time for decision. Not later than 60 calendar days after the 
date the record is closed or the date of the response in a case where no 
hearing was requested, the Board will decide whether to reclassify the 
bank and notify the bank of the Board's decision.
    (b) Request for rescission of reclassification. Any bank that has 
been reclassified under this section, may, upon a change in 
circumstances, request in writing that the Board reconsider the 
reclassification, and may propose that the reclassification be rescinded 
and that any directives issued in connection with the reclassification 
be modified, rescinded, or removed. Unless otherwise ordered by the 
Board, the bank shall remain subject to the reclassification and to any 
directives issued in connection with that reclassification while such 
request is pending before the Board.

[57 FR 44888, Sept. 29, 1992, as amended at 63 FR 58621, Nov. 2, 1998]



Sec. 263.204  Order to dismiss a director or senior executive officer.

    (a) Service of notice. When the Board issues and serves a directive 
on a state member bank pursuant to Sec. 263.202 requiring the bank to 
dismiss from office any director or senior executive officer under 
section 38(f) (2) (F) (ii) of the FDI Act, the Board shall also serve a 
copy of the directive, or the relevant portions of the directive where 
appropriate, upon the person to be dismissed.
    (b) Response to directive--(1) Request for reinstatement. A director 
or senior executive officer who has been served with a directive under 
paragraph (a) of this section (Respondent) may file a written request 
for reinstatement. The request for reinstatement shall be filed within 
10 calendar days of the receipt of the directive by the Respondent, 
unless further time is allowed by the Board at the request of the 
Respondent.
    (2) Contents of request; informal hearing. The request for 
reinstatement shall include reasons why the Respondent should be 
reinstated, and may include a request for an informal hearing before the 
Board or its designee under this section. If the Respondent desires to 
present oral testimony or witnesses at the hearing, the Respondent shall 
include a request to do so with the request for an informal hearing. The 
request to present oral testimony or witnesses shall specify the names 
of the witnesses and the general nature of their expected testimony. 
Failure to request a hearing shall constitute a waiver of any right to a 
hearing and failure to request the opportunity to present oral testimony 
or witnesses shall constitute a waiver of any right or opportunity to 
present oral testimony or witnesses.
    (3) Effective date. Unless otherwise ordered by the Board, the 
dismissal shall remain in effect while a request for reinstatement is 
pending.
    (c) Order for informal hearing. Upon receipt of a timely written 
request from a Respondent for an informal hearing on the portion of a 
directive requiring a bank to dismiss from office any director or senior 
executive officer, the Board shall issue an order directing an informal 
hearing to commence no later than 30 days after receipt of the request, 
unless the Respondent requests a later date. The hearing shall be held 
in Washington, DC, or at such other place as may be designated by the 
Board, before a presiding officer(s) designated by the Board to conduct 
the hearing.
    (d) Hearing procedures. (1) A Respondent may appear at the hearing 
personally or through counsel. A Respondent shall have the right to 
introduce relevant written materials and to present oral argument. A 
Respondent may introduce oral testimony and present witnesses only if 
expressly authorized

[[Page 311]]

by the Board or the presiding officer(s). Neither the provisions of the 
Administrative Procedure Act governing adjudications required by statute 
to be determined on the record nor the Uniform Rules of Practice and 
Procedure in subpart A of this part apply to an informal hearing under 
this section unless the Board orders that such procedures shall apply.
    (2) The informal hearing shall be recorded, and a transcript shall 
be furnished to the Respondent upon request and payment of the cost 
thereof. Witnesses need not be sworn, unless specifically requested by a 
party or the presiding officer(s). The presiding officer(s) may ask 
questions of any witness.
    (3) The presiding officer(s) may order that the hearing be continued 
for a reasonable period (normally five business days) following 
completion of oral testimony or argument to allow additional written 
submissions to the hearing record.
    (e) Standard for review. A Respondent shall bear the burden of 
demonstrating that his or her continued employment by or service with 
the bank would materially strengthen the bank's ability:
    (1) To become adequately capitalized, to the extent that the 
directive was issued as a result of the bank's capital level or failure 
to submit or implement a capital restoration plan; and
    (2) To correct the unsafe or unsound condition or unsafe or unsound 
practice, to the extent that the directive was issued as a result of 
classification of the bank based on supervisory criteria other than 
capital, pursuant to section 38(g) of the FDI Act.
    (f) Recommendation of presiding officers. Within 20 calendar days 
following the date the hearing and the record on the proceeding are 
closed, the presiding officer(s) shall make a recommendation to the 
Board concerning the Respondent's request for reinstatement with the 
bank.
    (g) Time for decision. Not later than 60 calendar days after the 
date the record is closed or the date of the response in a case where no 
hearing was requested, the Board shall grant or deny the request for 
reinstatement and notify the Respondent of the Board's decision. If the 
Board denies the request for reinstatement, the Board shall set forth in 
the notification the reasons for the Board's action.



Sec. 263.205  Enforcement of directives.

    (a) Judicial remedies. Whenever a state member bank or company that 
controls a state member bank fails to comply with a directive issued 
under section 38, the Board may seek enforcement of the directive in the 
appropriate United States district court pursuant to section 8(i) (1) of 
the FDI Act.
    (b) Administrative remedies--(1) Failure to comply with directive. 
Pursuant to section 8(i) (2) (A) of the FDI Act, the Board may assess a 
civil money penalty against any state member bank or company that 
controls a state member bank that violates or otherwise fails to comply 
with any final directive issued under section 38 and against any 
institution-affiliated party who participates in such violation or 
noncompliance.
    (2) Failure to implement capital restoration plan. The failure of a 
bank to implement a capital restoration plan required under section 38, 
subpart D of Regulation H (12 CFR part 208, subpart D), or this subpart, 
or the failure of a company having control of a bank to fulfill a 
guarantee of a capital restoration plan made pursuant to section 38 (e) 
(2) of the FDI Act shall subject the bank or company to the assessment 
of civil money penalties pursuant to section 8(i) (2) (A) of the FDI 
Act.
    (c) Other enforcement action. In addition to the actions described 
in paragraphs (a) and (b) of this section, the Board may seek 
enforcement of the provisions of section 38 or subpart B of Regulation H 
(12 CFR part 208, subpart B) through any other judicial or 
administrative proceeding authorized by law.

[57 FR 44888, Sept. 29, 1992, as amended at 63 FR 58621, Nov. 2, 1998]

[[Page 312]]



Subpart I_Submission and Review of Safety and Soundness Compliance Plans 
   and Issuance of Orders To Correct Safety and Soundness Deficiencies

    Source: 60 FR 35682, July 10, 1995, unless otherwise noted.



Sec. 263.300  Scope.

    The rules and procedures set forth in this subpart apply to State 
member banks that are subject to the provisions of section 39 of the 
Federal Deposit Insurance Act (section 39) (12 U.S.C. 1831p-1).



Sec. 263.301  Purpose.

    Section 39 of the FDI Act requires the Board to establish safety and 
soundness standards. Pursuant to section 39, a bank may be required to 
submit a compliance plan if it is not in compliance with a safety and 
soundness standard established by guideline under section 39(a) or (b). 
An enforceable order under section 8 may be issued if, after being 
notified that it is in violation of a safety and soundness standard 
established under section 39, the bank fails to submit an acceptable 
compliance plan or fails in any material respect to implement an 
accepted plan. This subpart establishes procedures for requiring 
submission of a compliance plan and issuing an enforceable order 
pursuant to section 39.



Sec. 263.302  Determination and notification of failure to meet
safety and soundness standard and request for compliance plan.

    (a) Determination. The Board may, based upon an examination, 
inspection, or any other information that becomes available to the 
Board, determine that a bank has failed to satisfy the safety and 
soundness standards contained in the Interagency Guidelines Establishing 
Standards for Safety and Soundness or the Interagency Guidelines 
Establishing Standards for Safeguarding Customer Information, set forth 
in appendices D-1 and D-2 to part 208 of this chapter, respectively.
    (b) Request for compliance plan. If the Board determines that a 
State member bank has failed a safety and soundness standard pursuant to 
paragraph (a) of this section, the Board may request, by letter or 
through a report of examination, the submission of a compliance plan, 
and the bank shall be deemed to have notice of the request three days 
after mailing of the letter by the Board or delivery of the report of 
examination.

[60 FR 35682, July 10, 1995, as amended at 63 FR 55488, Oct. 15, 1998; 
66 FR 8637, Feb. 1, 2001]



Sec. 263.303  Filing of safety and soundness compliance plan.

    (a) Schedule for filing compliance plan--(1) In general. A State 
member bank shall file a written safety and soundness compliance plan 
with the Board within 30 days of receiving a request for a compliance 
plan pursuant to Sec. 263.302(b), unless the Board notifies the bank in 
writing that the plan is to be filed within a different period.
    (2) Other plans. If a State member bank is obligated to file, or is 
currently operating under, a capital restoration plan submitted pursuant 
to section 38 of the FDI Act (12 U.S.C. 1831o), a cease-and-desist order 
entered into pursuant to section 8 of the FDI Act, a formal or informal 
agreement, or a response to a report of examination or report of 
inspection, it may, with the permission of the Board, submit a 
compliance plan under this section as part of that plan, order, 
agreement, or response, subject to the deadline provided in paragraph 
(a)(1) of this section.
    (b) Contents of plan. The compliance plan shall include a 
description of the steps the State member bank will take to correct the 
deficiency and the time within which those steps will be taken.
    (c) Review of safety and soundness compliance plans. Within 30 days 
after receiving a safety and soundness compliance plan under this 
subpart, the Board shall provide written notice to the bank of whether 
the plan has been approved or seek additional information from the bank 
regarding the plan. The Board may extend the time within which notice 
regarding approval of a plan will be provided.
    (d) Failure to submit or implement a compliance plan--(1) 
Supervisory actions.

[[Page 313]]

If a State member bank fails to submit an acceptable plan within the 
time specified by the Board or fails in any material respect to 
implement a compliance plan, then the Board shall, by order, require the 
bank to correct the deficiency and may take further actions provided in 
section 39(e)(2)(B). Pursuant to section 39(e)(3), the Board may be 
required to take certain actions if the bank commenced operations or 
experienced a change in control within the previous 24-month period, or 
the bank experienced extraordinary growth during the previous 18-month 
period.
    (2) Extraordinary growth. For purposes of paragraph (d)(1) of this 
section, extraordinary growth means an increase in assets of more than 
7.5 percent during any quarter within the 18-month period preceding the 
issuance of a request for submission of a compliance plan, by a bank 
that is not well capitalized for purposes of section 38 of the FDI Act. 
For purposes of calculating an increase in assets, assets acquired 
through merger or acquisition approved pursuant to the Bank Merger Act 
(12 U.S.C. 1828(c)) will be excluded.
    (e) Amendment of compliance plan. A State member bank that has filed 
an approved compliance plan may, after prior written notice to and 
approval by the Board, amend the plan to reflect a change in 
circumstance. Until such time as a proposed amendment has been approved, 
the bank shall implement the compliance plan as previously approved.



Sec. 263.304  Issuance of orders to correct deficiencies and to take
or refrain from taking other actions.

    (a) Notice of intent to issue order--(1) In general. The Board shall 
provide a bank prior written notice of the Board's intention to issue an 
order requiring the bank to correct a safety and soundness deficiency or 
to take or refrain from taking other actions pursuant to section 39 of 
the FDI Act. The bank shall have such time to respond to a proposed 
order as provided by the Board under paragraph (c) of this section.
    (2) Immediate issuance of final order. If the Board finds it 
necessary in order to carry out the purposes of section 39 of the FDI 
Act, the Board may, without providing the notice prescribed in paragraph 
(a)(1) of this section, issue an order requiring a bank immediately to 
take actions to correct a safety and soundness deficiency or take or 
refrain from taking other actions pursuant to section 39. A State member 
bank that is subject to such an immediately effective order may submit a 
written appeal of the order to the Board. Such an appeal must be 
received by the Board within 14 calendar days of the issuance of the 
order, unless the Board permits a longer period. The Board shall 
consider any such appeal, if filed in a timely matter, within 60 days of 
receiving the appeal. During such period of review, the order shall 
remain in effect unless the Board, in its sole discretion, stays the 
effectiveness of the order.
    (b) Contents of notice. A notice of intent to issue an order shall 
include:
    (1) A statement of the safety and soundness deficiency or 
deficiencies that have been identified at the bank;
    (2) A description of any restrictions, prohibitions, or affirmative 
actions that the Board proposes to impose or require;
    (3) The proposed date when such restrictions or prohibitions would 
be effective or the proposed date for completion of any required action; 
and
    (4) The date by which the bank subject to the order may file with 
the Board a written response to the notice.
    (c) Response to notice--(1) Time for response. A bank may file a 
written response to a notice of intent to issue an order within the time 
period set by the Board. Such a response must be received by the Board 
within 14 calendar days from the date of the notice unless the Board 
determines that a different period is appropriate in light of the safety 
and soundness of the bank or other relevant circumstances.
    (2) Contents of response. The response should include:
    (i) An explanation why the action proposed by the Board is not an 
appropriate exercise of discretion under section 39;
    (ii) Any recommended modification of the proposed order; and
    (iii) Any other relevant information, mitigating circumstances, 
documentation, or other evidence in support of

[[Page 314]]

the position of the bank regarding the proposed order.
    (d) Agency consideration of response. After considering the 
response, the Board may:
    (1) Issue the order as proposed or in modified form;
    (2) Determine not to issue the order and so notify the bank; or
    (3) Seek additional information or clarification of the response 
from the bank, or any other relevant source.
    (e) Failure to file response. Failure by a bank to file with the 
Board, within the specified time period, a written response to a 
proposed order shall constitute a waiver of the opportunity to respond 
and shall constitute consent to the issuance of the order.
    (f) Request for modification or rescission of order. Any bank that 
is subject to an order under this subpart may, upon a change in 
circumstances, request in writing that the Board reconsider the terms of 
the order, and may propose that the order be rescinded or modified. 
Unless otherwise ordered by the Board, the order shall continue in place 
while such request is pending before the Board.



Sec. 263.305  Enforcement of orders.

    (a) Judicial remedies. Whenever a State member bank fails to comply 
with an order issued under section 39, the Board may seek enforcement of 
the order in the appropriate United States district court pursuant to 
section 8(i)(1) of the FDI Act.
    (b) Failure to comply with order. Pursuant to section 8(i)(2)(A) of 
the FDI Act, the Board may assess a civil money penalty against any 
State member bank that violates or otherwise fails to comply with any 
final order issued under section 39 and against any institution-
affiliated party who participates in such violation or noncompliance.
    (c) Other enforcement action. In addition to the actions described 
in paragraphs (a) and (b) of this section, the Board may seek 
enforcement of the provisions of section 39 or this part through any 
other judicial or administrative proceeding authorized by law.



    Subpart J_Removal, Suspension, and Debarment of Accountants From 
                        Performing Audit Services

    Source: 68 FR 48267, Aug. 13, 2003, unless otherwise noted.



Sec. 263.400  Scope.

    This subpart, which implements section 36(g)(4) of the Federal 
Deposit Insurance Act (FDIA)(12 U.S.C. 1831m(g)(4)), provides rules and 
procedures for the removal, suspension, or debarment of independent 
public accountants and their accounting firms from performing 
independent audit and attestation services for insured state member 
banks, bank holding companies, and savings and loan holding companies 
required by section 36 of the FDIA (12 U.S.C. 1831m).

[76 FR 56605, Sept. 13, 2011]



Sec. 263.401  Definitions.

    As used in this subpart, the following terms shall have the meaning 
given below unless the context requires otherwise:
    (a) Accounting firm means a corporation, proprietorship, 
partnership, or other business firm providing audit services.
    (b) Audit services means any service required to be performed by an 
independent public accountant by section 36 of the FDIA and 12 CFR part 
363, including attestation services. Audit services include any service 
performed with respect to the holding company of an insured bank that is 
used to satisfy requirements imposed by section 36 or part 363 on that 
bank.
    (c) Banking organization means an insured state member bank, bank 
holding company, or savings and loan holding company that obtains audit 
services that are used to satisfy requirements imposed by section 36 or 
part 363 on an insured subsidiary bank or insured savings association of 
that holding company.
    (d) Independent public accountant (accountant) means any individual 
who performs or participates in providing audit services.

[68 FR 48267, Aug. 13, 2003, as amended at 76 FR 56605, Sept. 13, 2011]

[[Page 315]]



Sec. 263.402  Removal, suspension, or debarment.

    (a) Good cause for removal, suspension, or debarment--(1) 
Individuals. The Board may remove, suspend, or debar an independent 
public accountant from performing audit services for banking 
organizations that are subject to section 36 of the FDIA, if, after 
notice of and opportunity for hearing in the matter, the Board finds 
that the accountant:
    (i) Lacks the requisite qualifications to perform audit services;
    (ii) Has knowingly or recklessly engaged in conduct that results in 
a violation of applicable professional standards, including those 
standards and conflict of interest provisions applicable to accountants 
through the Sarbanes-Oxley Act of 2002, Pub. L. 107-204, 116 Stat. 745 
(2002) (Sarbanes-Oxley Act), and developed by the Public Company 
Accounting Oversight Board and the Securities and Exchange Commission;
    (iii) Has engaged in negligent conduct in the form of:
    (A) A single instance of highly unreasonable conduct that results in 
a violation of applicable professional standards in circumstances in 
which an accountant knows, or should know, that heightened scrutiny is 
warranted; or
    (B) Repeated instances of unreasonable conduct, each resulting in a 
violation of applicable professional standards, that indicate a lack of 
competence to perform audit services;
    (iv) Has knowingly or recklessly given false or misleading 
information, or knowingly or recklessly participated in any way in the 
giving of false or misleading information, to the Board or any officer 
or employee of the Board;
    (v) Has engaged in, or aided and abetted, a material and knowing or 
reckless violation of any provision of the Federal banking or securities 
laws or the rules and regulations thereunder, or any other law;
    (vi) Has been removed, suspended, or debarred from practice before 
any Federal or state agency regulating the banking, insurance, or 
securities industries, other than by an action listed in Sec. 263.403, 
on grounds relevant to the provision of audit services; or
    (vii) Is suspended or debarred for cause from practice as an 
accountant by any duly constituted licensing authority of any state, 
possession, commonwealth, or the District of Columbia.
    (2) Accounting firms. If the Board determines that there is good 
cause for the removal, suspension, or debarment of a member or employee 
of an accounting firm under paragraph (a)(1) of this section, the Board 
also may remove, suspend, or debar such firm or one or more offices of 
such firm. In considering whether to remove, suspend, or debar a firm or 
an office thereof, and the term of any sanction against a firm under 
this section, the Board may consider, for example:
    (i) The gravity, scope, or repetition of the act or failure to act 
that constitutes good cause for removal, suspension, or debarment;
    (ii) The adequacy of, and adherence to, applicable policies, 
practices, or procedures for the accounting firm's conduct of its 
business and the performance of audit services;
    (iii) The selection, training, supervision, and conduct of members 
or employees of the accounting firm involved in the performance of audit 
services;
    (iv) The extent to which managing partners or senior officers of the 
accounting firm have participated, directly, or indirectly through 
oversight or review, in the act or failure to act; and
    (v) The extent to which the accounting firm has, since the 
occurrence of the act or failure to act, implemented corrective internal 
controls to prevent its recurrence.
    (3) Limited scope orders. An order of removal, suspension (including 
an immediate suspension), or debarment may, at the discretion of the 
Board, be made applicable to a particular banking organization or class 
of banking organizations.
    (4) Remedies not exclusive. The remedies provided in this subpart 
are in addition to any other remedies the Board may have under any other 
applicable provisions of law, rule, or regulation.
    (b) Proceedings to remove, suspend, or debar--(1) Initiation of 
formal removal, suspension, or debarment proceedings. The Board may 
initiate a proceeding to

[[Page 316]]

remove, suspend, or debar an accountant or accounting firm from 
performing audit services by issuing a written notice of intention to 
take such action that names the individual or firm as a respondent and 
describes the nature of the conduct that constitutes good cause for such 
action.
    (2) Hearing under paragraph (b) of this section. An accountant or 
firm named as a respondent in the notice issued under paragraph (b)(1) 
of this section may request a hearing on the allegations in the notice. 
Hearings conducted under this paragraph shall be conducted in the same 
manner as other hearings under the Uniform Rules of Practice and 
Procedure (12 CFR part 263, subpart A).
    (c) Immediate suspension from performing audit services--(1) In 
general. If the Board serves a written notice of intention to remove, 
suspend, or debar an accountant or accounting firm from performing audit 
services, the Board may, with due regard for the public interest and 
without a preliminary hearing, immediately suspend such accountant or 
firm from performing audit services for banking organizations, if the 
Board:
    (i) Has a reasonable basis to believe that the accountant or firm 
has engaged in conduct (specified in the notice served on the accountant 
or firm under paragraph (b) of this section) that would constitute 
grounds for removal, suspension, or debarment under paragraph (a) of 
this section;
    (ii) Determines that immediate suspension is necessary to avoid 
immediate harm to an insured depository institution or its depositors or 
to the depository system as a whole; and
    (iii) Serves such respondent with written notice of the immediate 
suspension.
    (2) Procedures. An immediate suspension notice issued under this 
paragraph will become effective upon service. Such suspension will 
remain in effect until the date the Board dismisses the charges 
contained in the notice of intention, or the effective date of a final 
order of removal, suspension, or debarment issued by the Board to the 
respondent.
    (3) Petition to stay. Any accountant or firm immediately suspended 
from performing audit services in accordance with paragraph (c)(1) of 
this section may, within 10 calendar days after service of the notice of 
immediate suspension, file with the Secretary, Board of Governors of the 
Federal Reserve System, Washington, DC 20551 for a stay of such 
immediate suspension. If no petition is filed within 10 calendar days, 
the immediate suspension shall remain in effect.
    (4) Hearing on petition. Upon receipt of a stay petition, the 
Secretary will designate a presiding officer who shall fix a place and 
time (not more than 10 calendar days after receipt of the petition, 
unless extended at the request of petitioner) at which the immediately 
suspended party may appear, personally or through counsel, to submit 
written materials and oral argument. Any Board employee engaged in 
investigative or prosecuting functions for the Board in a case may not, 
in that or a factually related case, serve as a presiding officer or 
participate or advise in the decision of the presiding officer or of the 
Board, except as witness or counsel in the proceeding. In the sole 
discretion of the presiding officer, upon a specific showing of 
compelling need, oral testimony of witnesses may also be presented. In 
hearings held pursuant to this paragraph there shall be no discovery and 
the provisions of Sec. Sec. 263.6 through 263.12, 263.16, and 263.21 of 
this part shall apply.
    (5) Decision on petition. Within 30 calendar days after the hearing, 
the presiding officer shall issue a decision. The presiding officer will 
grant a stay upon a demonstration that a substantial likelihood exists 
of the respondent's success on the issues raised by the notice of 
intention and that, absent such relief, the respondent will suffer 
immediate and irreparable injury, loss, or damage. In the absence of 
such a demonstration, the presiding officer will notify the parties that 
the immediate suspension will be continued pending the completion of the 
administrative proceedings pursuant to the notice.
    (6) Review of presiding officer's decision. The parties may seek 
review of the presiding officer's decision by filing a petition for 
review with the presiding officer within 10 calendar days after

[[Page 317]]

service of the decision. Replies must be filed within 10 calendar days 
after the petition filing date. Upon receipt of a petition for review 
and any reply, the presiding officer shall promptly certify the entire 
record to the Board. Within 60 calendar days of the presiding officer's 
certification, the Board shall issue an order notifying the affected 
party whether or not the immediate suspension should be continued or 
reinstated. The order shall state the basis of the Board's decision.



Sec. 263.403  Automatic removal, suspension, and debarment.

    (a) An independent public accountant or accounting firm may not 
perform audit services for banking organizations if the accountant or 
firm:
    (1) Is subject to a final order of removal, suspension, or debarment 
(other than a limited scope order) issued by the Federal Deposit 
Insurance Corporation, the Office of the Comptroller of the Currency, or 
the Office of Thrift Supervision under section 36 of the FDIA;
    (2) Is subject to a temporary suspension or permanent revocation of 
registration or a temporary or permanent suspension or bar from further 
association with any registered public accounting firm issued by the 
Public Company Accounting Oversight Board or the Securities and Exchange 
Commission under sections 105(c)(4)(A) or (B) of the Sarbanes-Oxley Act 
of 2002 (15 U.S.C. 7215(c)(4)(A) or (B)); or
    (3) Is subject to an order of suspension or denial of the privilege 
of appearing or practicing before the Securities and Exchange 
Commission.
    (b) Upon written request, the Board, for good cause shown, may grant 
written permission to such accountant or firm to perform audit services 
for banking organizations. The request shall contain a concise statement 
of the action requested. The Board may require the applicant to submit 
additional information.



Sec. 263.404  Notice of removal, suspension, or debarment.

    (a) Notice to the public. Upon the issuance of a final order for 
removal, suspension, or debarment of an independent public accountant or 
accounting firm from providing audit services, the Board shall make the 
order publicly available and provide notice of the order to the other 
Federal banking agencies.
    (b) Notice to the Board by accountants and firms. An accountant or 
accounting firm that provides audit services to a banking organization 
must provide the Board with written notice of:
    (1) Any currently effective order or other action described in 
Sec. Sec. 263.402(a)(1)(vi) through (a)(1)(vii) or Sec. Sec. 
263.403(a)(2) through (a)(3); and
    (2) Any currently effective action by the Public Company Accounting 
Oversight Board under sections 105(c)(4)(C) or (G) of the Sarbanes-Oxley 
Act of 2002 (15 U.S.C. 7215(c)(4)(C) or (G)).
    (c) Timing of notice. Written notice required by this paragraph 
shall be given no later than 15 calendar days following the effective 
date of an order or action, or 15 calendar days before an accountant or 
firm accepts an engagement to provide audit services, whichever date is 
earlier.



Sec. 263.405  Petition for reinstatement.

    (a) Form of petition. Unless otherwise ordered by the Board, a 
petition for reinstatement by an independent public accountant, an 
accounting firm, or an office of a firm that was removed, suspended, or 
debarred under Sec. 263.402 may be made in writing at any time. The 
request shall contain a concise statement of the action requested. The 
Board may require the petitioner to submit additional information.
    (b) Procedure. A petitioner for reinstatement under this section 
may, in the sole discretion of the Board, be afforded a hearing. The 
accountant or firm shall bear the burden of going forward with a 
petition and proving the grounds asserted in support of the petition. 
The Board may, in its sole discretion, direct that any reinstatement 
proceeding be limited to written submissions. The removal, suspension, 
or debarment shall continue until the Board, for good cause shown, has 
reinstated the petitioner or until the suspension period has expired. 
The filing of a petition for reinstatement shall not stay the 
effectiveness of the removal, suspension, or debarment of an accountant 
or firm.

[[Page 318]]



PART 264_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



    Authority: 5 U.S.C. 7301; 12 U.S.C. 244.



Sec. 264.101  Cross-reference to employees' ethical conduct standards
and financial disclosure regulations.

    Employees of the Board of Governors of the Federal Reserve System 
(Board) are subject to the executive branch-wide standards of ethical 
conduct at 5 CFR part 2635 and the Board's regulation at 5 CFR part 
6801, which supplements the executive branch-wide standards, and the 
executive branch-wide financial disclosure regulation at 5 CFR part 
2634.

[61 FR 53830, Oct. 16, 1996]



PART 264a_POST-EMPLOYMENT RESTRICTIONS FOR SENIOR EXAMINERS--
Table of Contents



Sec.
264a.1 What is the purpose and scope of this part?
264a.2 Who is considered a senior examiner of the Federal Reserve?
264a.3 What special post-employment restrictions apply to senior 
          examiners?
264a.4 When do these special restrictions become effective and may they 
          be waived?
264a.5 What are the penalties for violating these special post-
          employment restrictions?
264a.6 What other definitions and rules of construction apply for 
          purposes of this part?

    Authority: 12 U.S.C. 1820(k).

    Source: 70 FR 69638, Nov. 17, 2005, unless otherwise noted.



Sec. 264a.1  What is the purpose and scope of this part?

    This part identifies those officers and employees of the Federal 
Reserve that are subject to the special post-employment restrictions set 
forth in section 10(k) of the Federal Deposit Insurance Act (FDI Act) 
and implements those restrictions as they apply to officers and 
employees of the Federal Reserve.



Sec. 264a.2  Who is considered a senior examiner of the Federal Reserve?

    For purposes of this part, an officer or employee of the Federal 
Reserve is considered to be the ``senior examiner'' for a particular 
state member bank, bank holding company, savings and loan holding 
company, or foreign bank if--
    (a) The officer or employee has been authorized by the Board to 
conduct examinations or inspections on behalf of the Board;
    (b) The officer or employee has been assigned continuing, broad and 
lead responsibility for examining or inspecting the state member bank, 
bank holding company, savings and loan holding company, or foreign bank; 
and
    (c) The officer's or employee's responsibilities for examining, 
inspecting and supervising the state member bank, bank holding company, 
savings and loan holding company, or foreign bank--
    (1) Represent a substantial portion of the officer's or employee's 
assigned responsibilities; and
    (2) Require the officer or employee to interact routinely with 
officers or employees of the state member bank, bank holding company, 
savings and loan holding company, or foreign bank or its affiliates.

[76 FR 56605, Sept. 13, 2011]



Sec. 264a.3  What special post-employment restrictions apply to 
senior examiners?

    (a) Senior Examiners of State Member Banks. An officer or employee 
of the Federal Reserve who serves as the senior examiner of a state 
member bank for two or more months during the last twelve months of such 
individual's employment with the Federal Reserve may not, within one 
year after leaving the employment of the Federal Reserve, knowingly 
accept compensation as an employee, officer, director or consultant 
from--
    (1) The state member bank; or
    (2) Any company (including a bank holding company) that controls the 
state member bank.
    (b) Senior Examiners of Bank Holding Companies. An officer or 
employee of the Federal Reserve who serves as the senior examiner of a 
bank holding company for two or more months during

[[Page 319]]

the last twelve months of such individual's employment with the Federal 
Reserve may not, within one year of leaving the employment of the 
Federal Reserve, knowingly accept compensation as an employee, officer, 
director or consultant from--
    (1) The bank holding company; or
    (2) Any depository institution that is controlled by the bank 
holding company.
    (c) Senior Examiners of Foreign Banks. An officer or employee of the 
Federal Reserve who serves as the senior examiner of a foreign bank for 
two or more months during the last twelve months of such individual's 
employment with the Federal Reserve may not, within one year of leaving 
the employment of the Federal Reserve, knowingly accept compensation as 
an employee, officer, director or consultant from--
    (1) The foreign bank; or
    (2) Any branch or agency of the foreign bank located in the United 
States; or
    (3) Any other depository institution controlled by the foreign bank.
    (d) Senior Examiners of Savings and Loan Holding Companies. An 
officer or employee of the Federal Reserve who serves as the senior 
examiner of a savings and loan holding company for two or more months 
during the last twelve months of such individual's employment with the 
Federal Reserve may not, within one year of leaving the employment of 
the Federal Reserve, knowingly accept compensation as an employee, 
officer, director or consultant from--
    (1) The savings and loan holding company; or
    (2) Any depository institution that is controlled by the savings and 
loan holding company.

[70 FR 69638, Nov. 17, 2005, as amended at 76 FR 56606, Sept. 13, 2011]



Sec. 264a.4  When do these special restrictions become effective
and may they be waived?

    The post-employment restrictions set forth in section 10(k) of the 
FDI Act and Sec. 264a.3 do not apply to any officer or employee of the 
Federal Reserve, or any former officer or employee of the Federal 
Reserve, if--
    (a) The individual ceased to be an officer or employee of the 
Federal Reserve before December 17, 2005; or
    (b) The Chairman of the Board of Governors certifies, in writing and 
on a case-by-case basis, that granting the individual a waiver of the 
restrictions would not affect the integrity of the Federal Reserve's 
supervisory program.



Sec. 264a.5  What are the penalties for violating these special
post-employment restrictions?

    (a) Penalties under section 10(k) of FDI Act. A senior examiner of 
the Federal Reserve who, after leaving the employment of the Federal 
Reserve, violates the restrictions set forth in Sec. 264a.3 shall, in 
accordance with section 10(k)(6) of the FDI Act, be subject to one or 
both of the following penalties--
    (1) An order--
    (i) Removing the individual from office or prohibiting the 
individual from further participation in the affairs of the relevant 
state member bank, bank holding company, savings and loan holding 
company, foreign bank or other depository institution or company for a 
period of up to five years; and
    (ii) Prohibiting the individual from participating in the affairs of 
any insured depository institution for a period of up to five years; 
and/or
    (2) A civil monetary penalty of not more than $250,000.
    (b) Imposition of penalties. The penalties described in paragraph 
(a) of this section shall be imposed by the appropriate Federal banking 
agency as determined under section 10(k)(6) of the FDI Act, which may be 
an agency other than the Federal Reserve.
    (c) Scope of prohibition orders. Any senior examiner who is subject 
to an order issued under paragraph (a) of this section shall, as 
required by section 10(k)(6)(B) of the FDI Act, be subject to paragraphs 
(6) and (7) of section 8(e) of the FDI Act in the same manner and to the 
same extent as a person subject to an order issued under section 8(e).
    (d) Procedures. The procedures applicable to actions under paragraph 
(a) of this section are provided in section 10(k)(6) of the FDI Act.
    (e) Other penalties. The penalties set forth in paragraph (a) of 
this section

[[Page 320]]

are not exclusive, and a senior examiner who violates the restrictions 
in Sec. 264a.3 also may be subject to other administrative, civil or 
criminal remedies or penalties as provided in law.

[70 FR 69638, Nov. 17, 2005, as amended at 76 FR 56606, Sept. 13, 2011]



Sec. 264a.6  What other definitions and rules of construction apply
for purposes of this part?

    For purposes of this part--
    (a) Bank holding company means any company that controls a bank (as 
provided in section 2 of the Bank Holding Company Act of 1956 (12 U.S.C. 
1841 et seq.)).
    (b) A person shall be deemed to act as a consultant for a bank or 
other company only if such person works directly on matters for, or on 
behalf of, such bank or other company.
    (c) Control has the meaning given in section 2 of the Bank Holding 
Company Act, with respect to banking holding companies, and has the 
meaning given in section 10 of the Home Owners' Loan Act, with respect 
to savings and loan holding companies.
    (d) Depository institution has the meaning given in section 3 of the 
FDI Act and includes an uninsured branch or agency of a foreign bank, if 
such branch or agency is located in any State.
    (e) Federal Reserve means the Board of Governors of the Federal 
Reserve System and the Federal Reserve Banks.
    (f) Foreign bank means any foreign bank or company described in 
section 8(a) of the International Banking Act of 1978 (12 U.S.C. 
3106(a)).
    (g) Insured depository institution has the meaning given in section 
3 of the FDI Act.
    (h) Savings and loan holding company means any company that controls 
a savings association (as provided in section 10 of the Home Owners' 
Loan Act (12 U.S.C. 1461 et seq.))

[70 FR 69638, Nov. 17, 2005, as amended at 76 FR 56606, Sept. 13, 2011]



PART 264b_RULES REGARDING FOREIGN GIFTS AND DECORATIONS--
Table of Contents



Sec.
264b.1 Purpose and scope.
264b.2 Definitions.
264b.3 Restrictions on acceptance of gifts and decorations.
264b.4 Gifts of minimal value.
264b.5 Gifts of more than minimal value.
264b.6 Requirements for gifts of more than minimal value.
264b.7 Decorations.
264b.8 Disposition or retention of gifts and decorations deposited with 
          the Office of the Secretary.
264b.9 Enforcement.
264b.10 Certain grants excluded.

    Authority: 5 U.S.C. 552, 7342; 12 U.S.C. 248(i).

    Source: 68 FR 68721, Dec. 10, 2003, unless otherwise noted.



Sec. 264b.1  Purpose and scope.

    These rules govern when Board employees, their spouses, and their 
dependents may accept and retain gifts and decorations from foreign 
governments under the Foreign Gifts and Decorations Act of 1966, as 
amended (5 U.S.C. 7342) (``Act'').



Sec. 264b.2  Definitions.

    When used in this part, the following terms have the meanings 
indicated:
    (a) Board employees means:
    (1) Members of the Board of Governors of the Federal Reserve System 
(``Board''), officers, and other employees of the Board, including 
experts or consultants while employed by, and acting on behalf of, the 
Board; and
    (2) Spouses (unless separated) or dependents (within the meaning of 
section 152 of the Internal Revenue Code of 1986 (26 U.S.C. 152)) of 
such persons.
    (b) Foreign government means:
    (1) Any unit of foreign governmental authority, including any 
foreign national, State, local, or municipal government;
    (2) Any international or multinational organization whose membership 
is composed of any unit of foreign government as described in paragraph 
(b)(1) of this section; and
    (3) Any agent or representative of any such unit or organization, 
while acting as such.

[[Page 321]]

    (c) Gift means a tangible or intangible present (other than a 
decoration) tendered by, or received from, a foreign government.
    (d) Decoration means an order, device, medal, badge, insignia, 
emblem, or award tendered by, or received from, a foreign government.
    (e) Minimal value means retail value in the United States at the 
time of acceptance of $285 or less as of January 1, 2002, and at 3-year 
intervals thereafter, as redefined in regulations prescribed by the 
Administrator of General Services, in consultation with the Secretary of 
State, to reflect changes in the consumer price index for the 
immediately preceding 3-year period.
    (f) Administrative Governor means the Board member serving as the 
Administrative Governor and includes persons designated by the 
Administrative Governor to exercise the authority granted under this 
part in the governor's absence.



Sec. 264b.3  Restrictions on acceptance of gifts and decorations.

    (a) Board employees are prohibited from requesting or otherwise 
encouraging the tender of a gift or decoration from a foreign 
government.
    (b) Board employees are prohibited from accepting a gift or 
decoration from a foreign government, except in accordance with this 
part.



Sec. 264b.4  Gifts of minimal value.

    (a) Board employees may accept and retain a gift of minimal value 
tendered and received as a souvenir or mark of courtesy. If more than 
one tangible gift is presented at or marks an event, the value of all 
such gifts must not exceed ``minimal value.'' If tangible gifts are 
presented at or mark separate events, their value must not exceed 
``minimal value'' for each event, but may exceed ``minimal value'' for 
all events, even if the events occur on the same day.
    (b) Board employees may determine at the time a gift is offered 
whether it is of minimal value, or they may submit an accepted gift as 
soon as practicable to the Office of the Secretary for valuation.
    (c) Disagreements over whether a gift is of minimal value will be 
resolved by an independent appraisal under procedures established by the 
Office of the Secretary.



Sec. 264b.5  Gifts of more than minimal value.

    (a) Educational scholarships or medical treatment. Board employees 
may accept and retain gifts of more than minimal value when such gifts 
are in the nature of an educational scholarship or medical treatment.
    (b) Travel or travel expenses. Board employees may accept gifts of 
travel or expenses for travel taking place entirely outside the United 
States (such as transportation, food, and lodging) of more than minimal 
value if appropriate, consistent with the interests of the United 
States, and permitted by the Board under paragraph (b)(1) or (b)(2) of 
this section.
    (1) Board employees may accept gifts of travel or expenses for 
travel under paragraph (b) of this section in accordance with specific 
instructions of the Board, as evidenced by the prior approval of the 
Administrative Governor. Board employees must request prior approval 
under procedures established by the Office of the Secretary.
    (2) Board employees may accept gifts of travel or expenses for 
travel under paragraph (b) of this section without the prior approval of 
the Administrative Governor if such expenses are reported under Sec. 
264b.6(b) and the Administrative Governor approves their acceptance 
after the fact. Board employees must personally repay gifts of travel or 
expenses for travel of more than minimal value that are not approved by 
the Administrative Governor.
    (c) Other gifts. (1) Board employees may typically regard the 
refusal of gifts of more than minimal value at the inception (when 
offered or received without a prior offer) as consistent with the 
interests and general policy of the United States.
    (2) Board employees may accept gifts of more than minimal value when 
it appears that refusal would likely cause offense or embarrassment or 
otherwise adversely affect the foreign relations of the United States. 
Tangible gifts are considered to have been accepted on behalf of the 
United States and become the property of the United States on 
acceptance. Accordingly, they must be

[[Page 322]]

deposited and documented in accordance with Sec. 264b.6(a) and can only 
be returned or otherwise processed by the Office of the Secretary under 
Sec. 264b.8.



Sec. 264b.6  Requirements for gifts of more than minimal value.

    (a) Tangible gifts. Board employees must deposit tangible gifts of 
more than minimal value with the Office of the Secretary within 60 days 
of acceptance and assist in preparing a statement that contains the 
following information for each gift:
    (1) The name and position of the Board employee;
    (2) A brief description of the gift and the circumstances justifying 
acceptance;
    (3) The identity, if known, of the foreign government and the name 
and position of the individual who presented the gift;
    (4) The date of acceptance of the gift;
    (5) The estimated value in the United States of the gift at the time 
of acceptance; and
    (6) The disposition or current location of the gift.
    (b) Travel or travel expenses without prior approval. Board 
employees who accept a gift of travel or expenses for travel under Sec. 
264b.5(b)(2) without the prior approval of the Administrative Governor 
must submit a report to the Office of the Secretary within 30 days of 
acceptance that contains the following information:
    (1) The name and position of the Board employee;
    (2) A brief description of the gift, including its estimated value, 
and the circumstances justifying acceptance; and
    (3) The identity, if known, of the foreign government and the name 
and position of the individual who presented the gift.
    (c) Reports to the Secretary of State. The Office of the Secretary 
must report the information contained in the statements described in 
paragraphs (a) and (b) of this section to the Secretary of State, who 
must publish in the Federal Register not later than January 31 of each 
year a comprehensive listing of all such statements for gifts of more 
than minimal value that were received by federal employees during the 
preceding year.



Sec. 264b.7  Decorations.

    (a) Board employees may accept, retain, and wear a decoration 
tendered or awarded by a foreign government in recognition of active 
field service in time of combat operations or for other outstanding or 
unusually meritorious performance, subject to the approval of the 
Administrative Governor. Requests for approval must be submitted to the 
Office of the Secretary and contain a statement of the circumstances 
surrounding the award and include any accompanying documentation. The 
recipient may retain the decoration pending action on the request.
    (b) Decorations accepted by Board employees without the approval of 
the Administrative Governor are considered to have been accepted on 
behalf of the United States and must be deposited within 60 days of the 
decoration's acceptance with the Office of the Secretary for disposition 
or retention under Sec. 264b.8.



Sec. 264b.8  Disposition or retention of gifts and decorations deposited
with the Office of the Secretary.

    (a) The Office of the Secretary may dispose of gifts and decorations 
deposited under Sec. Sec. 264b.6(a) and 264b.7(b) by returning them to 
the donors or by handling them in accordance with instructions from the 
General Services Administration under applicable law.
    (b) The Office of the Secretary may approve and retain gifts and 
decorations deposited under Sec. Sec. 264b.6(a) and 264b.7(b) for 
official use. The Office of the Secretary must dispose of a gift within 
30 days of the termination of its official use in accordance with 
instructions from the General Services Administration under applicable 
law.



Sec. 264b.9  Enforcement.

    (a) The Administrative Governor, after consultation with the General 
Counsel, must report to the Attorney General cases in which there is 
reason to believe that a Board employee has violated the Act.
    (b) The Attorney General may bring a civil action in any district 
court of

[[Page 323]]

the United States against a Board employee who knowingly solicits or 
accepts a gift from a foreign government in violation of the Act, or who 
fails to deposit or report such a gift as required by the Act. The court 
may assess a maximum penalty of the retail value of a gift improperly 
solicited or received plus $5,000.



Sec. 264b.10  Certain grants excluded.

    This part does not apply to grants and other forms of assistance to 
which Sec. 108A of the Mutual Educational and Cultural Exchange Act of 
1961 applies. See 22 U.S.C. 2458a.



PART 265_RULES REGARDING DELEGATION OF AUTHORITY--Table of Contents



Sec.
265.1 Authority, purpose, and scope.
265.2 Delegation of functions generally.
265.3 Board review of delegated actions.
265.4 Functions delegated to Board members.
265.5 Functions delegated to Secretary of the Board.
265.6 Functions delegated to General Counsel.
265.7 Functions delegated to Director of Division of Banking Supervision 
          and Regulation.
265.8 Functions delegated to the Staff Director of the Division of 
          International Finance.
265.9 Functions delegated to the Director of Division of Consumer and 
          Community Affairs.
265.10 Functions delegated to Secretary of Federal Open Market 
          Committee.
265.11 Functions delegated to Federal Reserve Banks.

    Authority: 12 U.S.C. 248(i) and (k).

    Source: 56 FR 25619, June 5, 1991, unless otherwise noted.



Sec. 265.1  Authority, purpose, and scope.

    (a) Pursuant to section 11(k) of the Federal Reserve Act (12 U.S.C. 
248(k)), the Board of Governors of the Federal Reserve System (the 
``Board'') may delegate, by published order or rule, any of its 
functions other than those relating to rulemaking or pertaining 
principally to monetary and credit policies to Board members and 
employees, Reserve Banks, or administrative law judges. Pursuant to 
section 11(i) of the Federal Reserve Act (12 U.S.C. 248(i)), the Board 
may make all rules and regulations necessary to enable it to effectively 
perform the duties, functions, or services specified in that Act. 
Pursuant to section 5(b) of the Bank Holding Company Act (12 U.S.C. 
1844(b)), the Board is authorized to issue such regulations and orders 
as may be necessary to enable it to administer and carry out the 
purposes of this Act and prevent evasions thereof. Other provisions of 
Federal law also may authorize specific delegations by the Board.
    (b) The Board's Rules Regarding Delegation of Authority (12 CFR part 
265) detail the responsibilities that the Board has delegated. The table 
of contents, titles, and headings that appear in these rules are used 
solely for their descriptive convenience. Section 265.4 addresses the 
specific functions delegated to Board members. The functions that have 
been delegated to Board employees are set forth in Sec. Sec. 265.5, 
265.6, 265.7, 265.8, and 265.9. The functions that have been delegated 
to the Secretary of the Federal Open Market Committee are set forth in 
Sec. 265.10. The functions that have been delegated to the Reserve 
Banks are set forth in Sec. 265.11. Provisions for review of any action 
taken pursuant to delegated authority are found in Sec. 265.3. Except 
as otherwise indicated in these rules, the Board will review a delegated 
action only if a Board member, at his or her own initiative, requests a 
review.



Sec. 265.2  Delegation of functions generally.

    (a) The Board has determined to delegate authority to exercise the 
functions described in this part.
    (b) The Chairman of the Board shall assign responsibility for 
performing such delegated functions.



Sec. 265.3  Board review of delegated actions.

    (a) Request by Board member. The Board shall review any action taken 
at a delegated level upon the vote of one member of the Board, either on 
the member's own initiative or on the basis of a petition for review by 
any person claiming to be adversely affected by the delegated action.
    (b) Petition for review. A petition for review of a delegated action 
must be received by the Secretary of the Board

[[Page 324]]

not later than the fifth day following the date of the delegated action.
    (c) Notice of review. The Secretary shall give notice of review by 
the Board of a delegated action to any person with respect to whom the 
action was taken not later than the tenth day following the date of the 
delegated action. Upon receiving notice, such person may not proceed 
further in reliance upon the delegated action until notified of the 
outcome of the review by the Board.
    (d) By action of a delegee. A delegee may submit any matter to the 
Board for determination if the delegee considers it appropriate because 
of the importance or complexity of the matter.



Sec. 265.4  Functions delegated to Board members.

    (a) Individual members. Any Board member designated by the Chairman 
is authorized:
    (1) Review of denial of access to Board records; FOIA. To review and 
determine an appeal of denial of access to Board records under the 
Freedom of Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 
552a), and the Board's rules regarding such access (12 CFR parts 261 and 
261a, respectively).
    (2) Approval of amendments to notice of charges or cease and desist 
orders. To approve (after receiving recommendations of the Director of 
the Division of Banking Supervision and Regulation and the General 
Counsel) amendments to any notice, temporary order, or proposed order 
previously approved by the Board in a specific formal enforcement matter 
(including a notice of charges or removal notice) or any proposed or 
temporary cease and desist order previously approved by the Board under 
12 U.S.C. 1818 (b) and (c).
    (3) Requests for permission to appeal rulings. (i) To act, when 
requested by the Secretary, upon any request under Sec. 263.10(e) of 
the Board's Rules of Practice for Hearings (12 CFR part 263) for special 
permission to appeal from a ruling of the presiding officer on any 
motion made at a hearing conducted under the rules, and if special 
permission is granted, the merits of the appeal shall be presented to 
the Board for decision.
    (ii) Notwithstanding Sec. 265.3 of this part, the denial of special 
permission to appeal a ruling may be reviewed by the Board only if a 
Board member requests a review within two days of the denial. No person 
claiming to be adversely affected by the denial shall have any right to 
petition the Board or any Board member for review or reconsideration of 
the denial.
    (4) Extension of time period for final Board action. To extend for 
an additional 180 days the 180-day period within which final Board 
action is required on an application pursuant to section 7(d) of the 
International Banking Act.
    (b) Three member Action Committee. Any three Board members 
designated from time to time by the Chairman (the ``Action Committee'') 
are authorized:
    (1) Absence of quorum. To act, upon certification by the Secretary 
of the Board of an absence of a quorum of the Board present in person, 
by unanimous vote on any matter that the Chairman has certified must be 
acted upon promptly in order to avoid delay that would be inconsistent 
with the public interest except for matters:
    (i) Relating to rulemaking;
    (ii) Pertaining principally to monetary and credit policies; and
    (iii) For which a statute expressly requires the affirmative vote of 
more than three Board members.
    (2) [Reserved]

[56 FR 25619, June 5, 1991, as amended at 56 FR 67154, Dec. 30, 1991; 62 
FR 14793, Mar. 28, 1997]



Sec. 265.5  Functions delegated to Secretary of the Board.

    The Secretary of the Board (or the Acting Secretary) is authorized:
    (a) Procedure--(1) Extension of time period for public participation 
in proposed regulations. To extend, when appropriate under the Board's 
Rules of Procedure (12 CFR 262.2 (a) and (b)), the time period for 
public participation with respect to proposed regulations of the Board.
    (2) Extension of time period in notices, orders, rules, or 
regulations. (i) To grant or deny requests to extend any time period in 
any notice, order, rule, or regulation of the Board relating to filing 
information, comments, opposition,

[[Page 325]]

briefs, exceptions, or other matters, in connection with any 
application, request or petition for the Board's approval, authority, 
determination, or permission, or any other action by the Board.
    (ii) Notwithstanding Sec. 265.3 of this part, no person claiming to 
be adversely affected by any such extension of time by the Secretary 
shall have the right to petition the Board or any Board member for 
review or reconsideration of the extension.
    (3) Conforming citations and references in Board rules and 
regulations. (i) To conform references to administrative positions or 
units in Board rules and regulations with changes in the administrative 
structure of the Board and in the government and agencies of the United 
States.
    (ii) To conform citations and references in Board rules and 
regulations with other regulatory or statutory changes adopted or 
promulgated by the Board or by the government or agencies of the United 
States.
    (4) Technical corrections in Board rules and regulations. To make 
technical corrections, such as spelling, grammar, construction, and 
organization (including removal of obsolete provisions and consolidation 
of related provisions), to the Board's rules, regulations, and orders 
and other records of Board action but only with the concurrence of the 
Board's General Counsel.
    (b) Availability of information--(1) FOIA requests. To make 
available, upon request, information in Board records and consider 
requests for confidential treatment of information in Board records 
under the Freedom of Information Act (5 U.S.C. 552) and under the 
Board's Rules Regarding Availability of Information (12 CFR part 261).
    (2) Annual reports on Privacy Act. To approve annual reports 
required by the Privacy Act (5 U.S.C. 552a(p)) from the Board to the 
Office of Management and Budget for inclusion in the President's annual 
consolidated report to Congress.
    (3) Report on prime rate of commercial banks. To determine and 
report, under 26 U.S.C. (IRC) 6621, to the Secretary of the Treasury the 
average predominant prime rate quoted by commercial banks to large 
businesses.
    (c) Bank holding companies; Change in bank control; Mergers--(1) 
Reports on competitive factors in bank mergers. To furnish reports on 
competitive factors involved in a bank merger to the Comptroller of the 
Currency and the Federal Deposit Insurance Corporation under the 
provisions of the Federal Deposit Insurance Act (12 U.S.C. 1828(c)); The 
Bank Holding Company Act (12 U.S.C. 1842(a), 1843(c)(14)); the Bank 
Service Corporation Act (12 U.S.C. 1865(a), (b), 1867(d)); the Change in 
Bank Control Act (12 U.S.C. 1817(j)); and the Federal Reserve Act (12 
U.S.C. 321 et seq., 601-604a, 611 et seq.).
    (2) Reserve Bank director interlocks. To take actions the Reserve 
Bank could take except for the fact that the Reserve Bank may not act 
because a director, senior officer, or principal shareholder of any 
holding company, bank, or company involved in the transaction is a 
director of that Reserve Bank or branch of the Reserve Bank.
    (3) Application approval under section 5(d)(3) of the FDI Act. To 
approve applications pursuant to section 5(d)(3) of the Federal Deposit 
Insurance Act (12 U.S.C. 1815(d)(3)), in those cases in which the 
appropriate Federal Reserve Bank concludes that, because of unusual 
considerations, or for other good cause, it should not take action.
    (d) International banking--(1) Establishment of foreign branch or 
foreign agency or of Edge or Agreement Corporations. To approve, under 
sections 25 and 25A of the Federal Reserve Act (12 U.S.C. 601 and 604) 
and Regulation K (12 CFR part 211), the establishment, directly or 
indirectly, of a foreign branch or agency by a member bank or an Edge or 
Agreement Corporation if all of the following conditions are met:
    (i) The appropriate Reserve Bank and relevant divisions of the 
Board's staff recommend approval;
    (ii) No significant policy issue is raised on which the Board has 
not expressed its view; and
    (iii) The application is not for the applicant's first full-service 
branch in a foreign country.
    (2) Acquisition of foreign company or U.S. company financing 
exports. To grant, under sections 25 and 25A of the Federal Reserve Act 
(12 U.S.C. 601 and

[[Page 326]]

604) and section 4(c)(13) of the Bank Holding Company Act (12 U.S.C. 
1843(c)(13)) and the Board's Regulations K and Y (12 CFR parts 211 and 
225), specific consent to the acquisition, either directly or 
indirectly, by a member bank, an Edge or Agreement corporation, or a 
bank holding company of stock of a company chartered under the laws of a 
foreign country or a company chartered under the laws of a state of the 
United States that is organized and operated for the purpose of 
financing exports from the United States, and to approve any such 
acquisition that may exceed the limitations of section 25A of the 
Federal Reserve Act based on the company's capital and surplus, if all 
of the following conditions are met:
    (i) The appropriate Reserve Bank and all relevant divisions of the 
Board's staff recommend approval;
    (ii) No significant policy issue is raised on which the Board has 
not expressed its view;
    (iii) The acquisition does not result, either directly or 
indirectly, in the bank, corporation, or bank holding company acquiring 
effective control of the company, except that this condition need not be 
met if:
    (A) The company is to perform nominee, fiduciary, or other services 
incidental to the activities of a foreign branch or affiliate of the 
bank holding company, or corporation; or
    (B) The stock is being acquired from the parent bank or bank holding 
company, or subsidiary Edge or Agreement corporation, as the case may 
be, and the selling parent or subsidiary holds the stock with the 
consent of the Board pursuant to Regulations K and Y (12 CFR parts 211 
and 225).
    (3) Investments in Edge and Agreement Corporations. To approve an 
application by a member bank to invest more than 10 percent of capital 
and surplus in Edge and agreement corporation subsidiaries, provided 
that:
    (i) The member bank's total investment, including the retained 
earnings of the Edge and agreement corporation subsidiaries, does not 
exceed 20 percent of the bank's capital and surplus or would not exceed 
that level as a result of the proposal; and
    (ii) The proposal raises no significant policy or supervisory 
issues.
    (e) Member banks--(1) Waiver of penalty for early withdrawals of 
time deposits. To permit depository institutions to waive the penalty 
for early withdrawal of time deposits under section 19(j) of the Federal 
Reserve Act (12 U.S.C. 371b) and Sec. 204.2 of Regulation D (12 CFR 
part 204) if the following conditions are met:
    (i) The President declares an area of major disaster or emergency 
area pursuant to section 301 of the Disaster Relief Act of 1974 (42 
U.S.C. 5141);
    (ii) The waiver is limited to depositors suffering disaster or 
emergency related losses in the officially designated area; and
    (iii) The appropriate Reserve Bank and all relevant divisions of the 
Board's staff recommend approval.
    (2) [Reserved]
    (f) Location of institution. To determine the Federal Reserve 
District in which an institution is located pursuant to Sec. 
204.3(b)(2)(ii) of Regulation D (12 CFR part 204) or Sec. 209.15(b) of 
Regulation I (12 CFR part 209) if:
    (1) The relevant Federal Reserve Banks and the institution agree on 
the specific Reserve Bank in which the institution should hold stock or 
with which the institution should maintain reserve balances; and
    (2) The agreed-upon location does not raise any significant policy 
issues.

[56 FR 25619, June 5, 1991, as amended at 56 FR 67153, 67154, Dec. 30, 
1991; 58 FR 26509, May 4, 1993; 62 FR 34617, June 27, 1997; 66 FR 58655, 
Nov. 23, 2001]



Sec. 265.6  Functions delegated to General Counsel.

    The Board's general counsel (or the general counsel's delegee) is 
authorized:
    (a) Procedure--(1) Reconsideration of Board action. Pursuant to 
Sec. 262.3(i) of this chapter (Rules of Procedure) to determine whether 
or not to grant a request for reconsideration or whether to deny a 
request for stay of the effective date of any action taken by the Board 
with respect to an action as provided in that part.
    (2) Public meetings. To order, after consulting with the directors 
of other interested divisions of the Board and

[[Page 327]]

the appropriate Reserve Bank, that a public meeting or other proceeding 
be held, under Sec. 262.25 of the Board's Rules of Procedure (12 CFR 
part 262), in connection with any application or notice filed with the 
Board, and to designate the presiding officer in the proceeding under 
terms and conditions the General Counsel deems appropriate.
    (3) Designation of Board counsel for hearings. To designate Board 
staff attorneys as Board counsel in any proceeding ordered by the Board 
in accordance with Sec. 263.6 of the Board's Rules of Practice for 
Hearings (12 CFR part 263).
    (4) Oaths, depositions, subpoenas. To take, or authorize designated 
persons to take, with the concurrence of the Director of the Division of 
Banking Supervision and Regulation, actions permitted under 12 U.S.C. 
1818(n), 1820(c), and 12 U.S.C. 1844(f), including administering oaths 
and affirmations, taking depositions, and issuing, revoking, quashing, 
or modifying subpoenas duces tecum.
    (b) Availability of Information--(1) FOIA requests. To make 
available information of the Board of the nature and in the 
circumstances described in the Board's Rules Regarding Availability of 
Information (12 CFR part 261).
    (2) Disclosure to foreign authorities. To make the determinations 
required for disclosure of information to a foreign bank regulatory or 
supervisory authority, and to obtain, to the extent necessary, the 
agreement of such authority to maintain the confidentiality of such 
information to the extent possible under applicable law.
    (3) Assistance to foreign authorities. To approve requests for 
assistance from any foreign bank regulatory or supervisory authority 
that is conducting an investigation regarding violations of any law or 
regulation relating to banking matters or currency transactions 
administered or enforced by such authority, and to make the 
determinations required for any investigation or collection of 
information and evidence pertinent to such request. In deciding whether 
to approve requests for assistance under this paragraph, the General 
Counsel shall consider:
    (i) Whether the requesting authority has agreed to provide 
reciprocal assistance with respect to banking matters within the 
jurisdiction of any appropriate Federal banking agency;
    (ii) Whether compliance with the request would prejudice the public 
interest of the United States; and
    (iii) Whether the request is consistent with the requirement that 
the Board conduct any such investigation in compliance with the laws of 
the United States and the policies and procedures of the Board.
    (c) Bank holding companies; Change in bank control; Mergers--(1) 
Control determinations under section 2(g) of BHC Act. To determine 
whether a company that transfers shares under section 2(g) of the Bank 
Holding Company Act (12 U.S.C. 1841(g)) is incapable of controlling the 
transferee.
    (2) Control determinations under section 4(c)(8) of BHC Act. To 
determine, or issue an order for a hearing to determine, whether a 
company engaged in financial, fiduciary, or insurance activities falls 
within the exemption in section 4(c)(8) of the Bank Holding Company Act 
(12 U.S.C. 1843(c)(8)), permitting retention or acquisition of control 
thereof by a bank holding company.
    (3) Notices under CBC Act. To revoke acceptance of and return as 
incomplete a notice filed under the Change in Bank Control Act (12 
U.S.C. 1817(j)) or to extend the time during which action must be taken 
on a notice where the General Counsel determines, with the concurrence 
of the Director of the Division of Banking Supervision and Regulation, 
that the notice is materially incomplete under that Act or Regulation Y 
(12 CFR part 225) or contains material information that is substantially 
inaccurate.
    (4) Tax certifications. To make prior and final certification for 
federal tax purposes (26 U.S.C. (IRC) 1101-1103, 6158) with respect to 
distributions pursuant to the Bank Holding Company Act (12 U.S.C. 1841 
et seq.).
    (d) Management interlocks--(1) General exceptions. To grant 
exceptions from the prohibitions of Regulation L (12 CFR part 212) when 
the primary federal supervisor of the depository institution in need of 
management assistance approves.

[[Page 328]]

    (2) Temporary exceptions. To grant requests, after consultation with 
the Director for the Division of Banking Supervision and Regulation, for 
temporary director interlocks under Regulation L (12 CFR part 212) for 
newly chartered banks, banks in low income areas, minority banks, 
women's banks, organizations experiencing conditions endangering their 
safety or soundness, organizations sponsoring a credit union, and 
organizations that lose thirty percent or more of their directors or 
management officials due to changes in circumstances.
    (e) Consent enforcement orders. With the concurrence of the director 
of the Board's Division of Banking Supervision and Regulation (or the 
Director's delegee):
    (1) To enter into a cease-and-desist order, removal and prohibition 
order, or civil money penalty assessment order with a bank holding 
company or any nonbanking subsidiary thereof, with a state member bank, 
or with any other person or entity subject to the Board's jurisdiction, 
when the order has been consented to by the institution or individual 
subject to the order;
    (2) To stay, modify, terminate, or suspend an order issued pursuant 
to paragraph (e)(1) of this section.
    (f) International banking--(1) After-the-fact applications. With the 
concurrence of the Board's Director of the Division of Banking 
Supervision and Regulation, to grant a request by a foreign bank to 
establish a branch, agency, commercial lending company, or 
representative office through certain acquisitions, mergers, 
consolidations, or similar transactions, in conjunction with which:
    (i) The foreign bank would be required to file an after-the-fact 
application for the Board's approval under Sec. 211.24(a)(6) of 
Regulation K (12 CFR 211.24(a)(6)); or
    (ii) The General Counsel may waive the requirement for an after-the-
fact application if:
    (A) The surviving foreign bank commits to wind down the U.S. 
operations of the acquired foreign bank; and
    (B) The merger or consolidation raises no significant policy or 
supervisory issues.
    (2) To modify the requirement that a foreign bank that has submitted 
an application or notice to establish a branch, agency, commercial 
lending company, or representative office pursuant to Sec. 211.24(a)(6) 
of Regulation K (12 CFR 211.24(a)(6)) shall publish notice of the 
application or notice in a newspaper of general circulation in the 
community in which the applicant or notificant proposes to engage in 
business, as provided in Sec. 211.24(b)(2) of Regulation K (12 CFR 
211.24(b)(2)).
    (3) With the concurrence of the Board's Director of the Division of 
Banking Supervision and Regulation, to grant a request for an exemption 
under section 4(c)(9) of the Bank Holding Company Act (12 U.S.C. 
1843(c)(9)), provided that the request raises no significant policy or 
supervisory issues that the Board has not already considered.
    (4) To return applications and notices filed under the International 
Banking Act for informational deficits.
    (5) To determine that an entity qualifies as a ``special-purpose 
foreign government-owned bank'' for purposes of Sec. 211.24(d)(3) (12 
CFR 211.24(d)(3)).
    (g) Conflicts of interest waivers. To issue individual conflicts of 
interest waivers under 18 U.S.C. 208(b)(1) to employees and officials 
other than Board members.

[56 FR 25619, June 5, 1991, as amended at 56 FR 67154, Dec. 30, 1991; 57 
FR 6789, Feb. 28, 1992; 57 FR 13002, Apr. 15, 1992; 58 FR 6363, Jan. 28, 
1993; 58 FR 26509, May 4, 1993; 58 FR 53394, Oct. 15, 1993; 60 FR 10307, 
Feb. 24, 1995; 61 FR 13395, Mar. 27, 1996; 62 FR 45150, Aug. 26, 1997; 
66 FR 54397, Oct. 26, 2001]



Sec. 265.7  Functions delegated to Director of Division of Banking
Supervision and Regulation.

    The Board's Director of the Division of Banking Supervision and 
Regulation (or the Director's delegee) is authorized:
    (a) Procedure--(1) Cease and desist orders. To refuse, with the 
prior concurrence of the appropriate Reserve Bank and the Board's 
General Counsel, an application to the Board to stay, modify, terminate, 
or set aside any effective cease and desist order previously issued by 
the Board under section 8(b) of the Federal Deposit Insurance Act (12 
U.S.C. 1818(b)), or any written

[[Page 329]]

agreement between the Board or the Reserve Bank and a bank holding 
company or any nonbanking subsidiary thereof or a state member bank.
    (2) Modification of commitments or conditions. To grant or deny 
requests for modifying, including extending the time for, performing a 
commitment or condition relied on by the Board or its delegee in taking 
any action under the Bank Holding Company Act, the Bank Merger Act, the 
Change in Bank Control Act of 1978, the Federal Reserve Act, or the 
International Banking Act. In acting on such requests, the Board's 
Director may take into account changed circumstances and good faith 
efforts to fulfill the commitments or conditions, and shall consult with 
the directors of other interested divisions where appropriate. The 
Board's Director may not take any action that would be inconsistent with 
or result in an evasion of the provisions of the Board's original 
action.
    (3) Notice of insufficient capital. To issue, with the concurrence 
of the Board's General Counsel, a notice that a state member bank or 
bank holding company has insufficient capital and which directs the bank 
or company to file with its regional Reserve Bank a capital improvement 
plan under subpart D of the Board's Rules of Practice for Hearings (12 
CFR part 263).
    (4) Obtaining possession or control of securities; extending time 
period. To approve, under Sec. 403.5(g) of the Treasury Department 
regulations (17 CFR part 403) implementing the Government Securities Act 
of 1986, as amended (Pub. L. 95-571), the application of a member bank, 
a state branch or agency of a foreign bank, a foreign bank, or a 
commercial lending company owned or controlled by a foreign bank, to 
extend for one or more limited periods commensurate with the 
circumstances the 30-day time period specified in 17 CFR 
403.5(c)(1)(iii), provided the Director is satisfied that the applicant 
is acting in good faith and that exceptional circumstances warrant such 
action.
    (b) Availability of Information--(1) FOIA requests. To make 
available information of the Board of the nature and in the 
circumstances described in Sec. 261.11 of the Board's Rules Regarding 
Availability of Information (12 CFR part 261).
    (2) FOIA; Availability of information. To make available, under the 
Board's Rules Regarding Availability of Information (12 CFR part 261), 
reports and other information of the Board acquired pursuant to the 
Board's Regulations G, T, U, and X (12 CFR parts 207, 220, 221, 224) of 
the nature and in circumstances described in Sec. Sec. 261.8(a) (2) and 
(3) of these rules.
    (c) Bank holding companies; Change in bank control; Mergers--(1) 
Bank holding company registration forms and annual reports. To 
promulgate registration forms and annual reports and other forms for use 
in connection with the Bank Holding Company Act, after receiving 
clearance from the Office of Management and Budget (where necessary), 
under section 5 of the Bank Holding Company Act (12 U.S.C. 1844) and in 
accordance with 5 U.S.C. 553.
    (2) Emergency action. To take actions the Reserve Bank could take 
under this part at Sec. Sec. 265.11(c)(2)(ii) and 265.11(c)(3)(iii) if 
immediate or expeditious action is required to avert failure of a bank 
or savings association or because of an emergency pursuant to sections 
3(a) and 4(c)(8) of the Bank Holding Company Act (12 U.S.C. 1842(a), 
1843(c)(8)) on the Change in Bank Control Act (12 U.S.C. 1817(j)).
    (3) Waiver of notice. To waive, dispense with, modify or excuse the 
failure to comply with the requirement for publication and solicitation 
of public comment regarding a notice filed under the Change in Bank 
Control Act (12 U.S.C. 1817(j)), with the concurrence of the Board's 
General Counsel, provided a written finding is made that such disclosure 
would seriously threaten the safety or soundness of a bank holding 
company or a bank.
    (4) Notices for addition or change of directors or officers. Under 
section 914(a) of the Financial Institutions Reform, Recovery and 
Enforcement Act (12 U.S.C. 1831i) and subpart H of Regulation Y (12 CFR 
part 225), provided that no senior officer or director or proposed 
senior officer or director of the notificant is also a director of the 
Reserve Bank or a branch of the Reserve Bank:

[[Page 330]]

    (i) To determine the informational sufficiency of notices filed 
pursuant to Sec. 225.72 of Regulation Y (12 CFR part 225); and
    (ii) To waive the prior notice requirements of that section.
    (5) ERISA violations. To provide the Department of Labor written 
notification of possible significant violations of the Employee 
Retirement Income Security Act (ERISA) by bank holding companies, in 
accordance with section 3004(b) of ERISA and the Interagency Agreement 
adopted to implement its provisions.
    (6) Appraisal not required. To determine pursuant to 12 CFR 
225.63(b)(12) that the services of an appraiser are not necessary in 
order to protect Federal financial and public policy interests in real 
estate-related financial transactions or to protect the safety and 
soundness of an institution.
    (d) International banking--(1) Foreign bank reports. To require 
submission of a report of condition respecting any foreign bank in which 
a member bank holds stock acquired under Sec. 211.5(b) of Regulation K 
(12 CFR part 211) and section 25 of the Federal Reserve Act (12 U.S.C. 
602).
    (2) Edge corporation reports. To require submission and publication 
of reports by an Edge corporation under section 25A of the Federal 
Reserve Act (12 U.S.C. 625).
    (3) Capital stock of Edge corporation; articles of association; 
additional investments in Agreement corporation. To approve under 
sections 25 and 25A as of the Federal Reserve Act (12 U.S.C. 601 and 
604), increases and decreases in the capital stock of and amendments to 
the articles of association of an Edge corporation and additional 
investments by a member bank in the stock of an Agreement corporation.
    (4) Authority under general-consent and prior-notice procedures. (i) 
With regard to a prior notice to establish a branch in a foreign country 
under Sec. 211.3 of Regulation K (12 CFR 211.3):
    (A) To waive the notice period;
    (B) To suspend the notice period;
    (C) To determine not to object to the notice; or
    (D) To require the notificant to file an application for the Board's 
specific consent.
    (ii) With regard to a prior notice to make an investment under Sec. 
211.9(f) of Regulation K (12 CFR 211.9(f)):
    (A) To waive the notice period;
    (B) To suspend the notice period; or
    (C) To require the notificant to file an application for the Board's 
specific consent.
    (iii) With regard to a prior notice of a foreign bank to establish 
certain U.S. offices under Sec. 211.24(a)(2)(i) of Regulation K (12 CFR 
211.24(a)(2)(i)):
    (A) To waive the notice period;
    (B) To suspend the notice period; or
    (C) To require the notificant to file an application for the Board's 
specific consent.
    (iv) To suspend the ability:
    (A) Of a foreign banking organization to establish an office under 
the prior-notice procedures in Sec. 211.24(a)(2)(i) of Regulation K (12 
CFR 211.24(a)(2)(i)) or the general-consent procedures in Sec. 
211.24(a)(3) of Regulation K (12 CFR 211.24(a)(3));
    (B) Of a U.S. banking organization to establish a foreign branch 
under the prior-notice or general-consent procedures in Sec. 211.3(b) 
of Regulation K (12 CFR 211.3(b));
    (C) Of an investor to make investments under the general-consent or 
prior-notice procedures in Sec. 211.9 of Regulation K (12 CFR 211.9); 
and
    (D) Of an eligible investor to make an investment in an export 
trading company under the general-consent procedures in Sec. 211.34(b) 
of Regulation K (12 CFR 211.34(b)).
    (5) Investment by foreign subsidiaries in U.S. affiliates. To 
permit, after consultation with the Board's General Counsel, a foreign 
subsidiary of a bank holding company to invest in shares of a U.S. 
affiliate of the bank holding company where the investment is made as 
part of an internal corporate reorganization or an internal transfer of 
funds, subject to any conditions and terms the Director and General 
Counsel deem appropriate and consistent with the purposes of Regulation 
K (12 CFR part 211).
    (6) Allocated transfer risk reserves. To determine the need for 
establishing and the amount of any allocated transfer risk reserve 
against specific international assets, and notify the banking 
institutions of the determination and

[[Page 331]]

the amount of the reserve and whether the reserve may be reduced under 
subpart D of Regulation K (12 CFR part 211).
    (7) Underwriting and dealing authority outside the United States; 
hedging techniques. To approve, under Sec. 211.5(d)(14) of Regulation K 
(12 CFR part 211):
    (i) Requests for authority to engage in the activities of 
underwriting, distributing, and dealing in shares outside the United 
States, provided that the Director has determined that the internal 
procedures and operations of the organization and the effect of the 
proposed activities on capital adequacy are consistent with approval.
    (ii) Hedging methods authorized under Sec. 211.5(d)(14)(iii)(A) of 
Regulation K (12 CFR part 211).
    (8) Conduct and coordination of examinations. To authorize the 
conduct of examinations of the U.S. offices and affiliates of foreign 
banks as provided in sections 7(c) and 10(c) of the IBA (12 U.S.C. 
3105(c), 3107(c)), and, where appropriate, to coordinate those 
examinations with examinations of the Office of the Comptroller of the 
Currency, the Federal Deposit Insurance Corporation, and the state 
entity that is authorized to supervise or regulate a state branch, state 
agency, commercial lending company, or representative office.
    (9) Allowing use of general-consent procedures. To allow an investor 
that is not well-capitalized and well-managed to make investments under 
the general-consent procedures in Sec. 211.9 or 211.34(b) of Regulation 
K (12 CFR 211.9 or 211.34(b)), provided that:
    (i) The investor has implemented measures to become well-capitalized 
and well-managed;
    (ii) Granting such authority raises no significant policy or 
supervisory concerns; and
    (iii) Authority granted by the Director under this paragraph (d)(9) 
expires after one year, but may be renewed.
    (10) Exceeding general-consent investment limits. To allow an 
investor to exceed the general-consent investment limits under Sec. 
211.9 of Regulation K (12 CFR 211.9), provided that:
    (i) The investor demonstrates adequate financial and managerial 
strength;
    (ii) The investor's investment strategy is not unsafe or unsound;
    (iii) Granting such authority raises no significant policy or 
supervisory concerns; and
    (iv) Authority granted by the Director under this paragraph (d)(10) 
expires after one year, but may be renewed.
    (11) Approval of temporary U.S. offices. To allow a foreign bank to 
operate a temporary office in the United States, pursuant to Sec. 
211.24 of Regulation K (12 CFR 211.24), provided that:
    (i) There is no direct public access to such office, with respect to 
any branch or agency function; and
    (ii) The proposal raises no significant policy or supervisory 
issues.
    (12) With the concurrence of the General Counsel, to approve 
applications, notices, exemption requests, waivers and suspensions, and 
other related matters under Regulation K (12 CFR part 211), where such 
matters do not raise any significant policy or supervisory issues.
    (13) With the concurrence of the General Counsel, to approve:
    (i) The establishment by a bank holding company or member bank of an 
agreement corporation under section 25 of the Federal Reserve Act; and
    (ii) Any initial investment associated with the establishment of 
such agreement corporation.
    (14) With the concurrence of the General Counsel, to determine that 
an election by a foreign bank to become or to be treated as a financial 
holding company is effective, provided that:
    (i) The foreign bank meets the criteria for becoming or being 
treated as a financial holding company; and
    (ii) The election raised no significant policy or supervisory 
issues.
    (e) Member banks--(1) Membership certification to FDIC. Tocertify, 
under section 4(b) of the Federal Deposit Insurance Act (12 U.S.C. 
1814(b)), to the Federal Deposit Insurance Corporation that the factors 
specified in section 6 of the Act (12 U.S.C. 1816) were considered with 
respect to the admission of a state-chartered bank to Federal Reserve 
membership.
    (2) Dollar exchange. To permit any member bank to accept drafts or 
bill of exchange drawn upon it for the purpose of furnishing dollar 
exchange under

[[Page 332]]

section 13(12) of the Federal Reserve Act (12 U.S.C. 373).
    (3) ERISA violations. To provide to the Department of Labor written 
notification of possible significant violations of the Employee 
Retirement Income Security Act (ERISA) by member banks, in accordance 
with section 3004(b) of ERISA and the Interagency Agreement adopted to 
implement its provisions.
    (4) Examiners. To select or approve the appointment of Federal 
Reserve examiners, assistant examiners, and special examiners for the 
purpose of making examinations for or by the direction of the Board 
under 12 U.S.C. 325, 338, 625, 1844(c), and 3105(b)(1).
    (5) Capital stock reduction; branch applications; declaration of 
dividends; investment in bank premises. To exercise the functions 
described in Sec. 265.11(e)(5), (11), and (12) of this part (reductions 
in capital, issuance of subordinated debt, and early retirement of 
subordinated debt) when the conditions specified in those sections 
preclude a Reserve Bank from acting on a member bank's request for 
action or when the Reserve Bank concludes that it should not take 
action, and to exercise the functions in Sec. 265.11(e)(3), (4), and 
(7) of this part (approving branch applications, declaration of 
dividends, and investment in bank premises) in cases in which the 
Reserve Bank concludes that it should not take action.
    (6) Security devices; Regulation P. To exercise the functions 
described in Sec. 265.11(e)(8) of this part in those cases in which the 
appropriate Reserve Bank concludes that it should not take action for 
good cause.
    (f) Securities--(1) Registration statements by member banks. Under 
section 12(g) of the Securities Exchange Act (15 U.S.C. 78l(g)):
    (i) To accelerate the effective date of a registration statement 
filed by a member bank with respect to its securities;
    (ii) To accelerate termination of the registration of a security 
that is no longer held of record by 300 persons; and
    (iii) To extent the time for filing a registration statement by a 
member bank.
    (2) Exemption from registration. To issue notices with respect to 
application by a statement member bank for exemption from registration 
under section 12(h) of the Securities Exchange Act (15 U.S.C. 78l(h)).
    (3) Accelerating registration of security on national securities 
exchange. To accelerate the effective date of an application by a state 
member bank for registration of a security on a national securities 
exchange under section 12(d) of the Securities Exchange Act (15 U.S.C. 
78l(d)).
    (4) Unlisted trading in security of state member bank. To issue 
notices with respect to an application by a national securities exchange 
for unlisted trading privileges in a security of a state member bank 
under section 12(f) of the Securities Exchange Act (15 U.S.C. 78l(f)).
    (5) Transfer agent registration; acceleration; withdrawal or 
cancellation. (i) To accelerate, under section 17A(c)(2) of the 
Securities Exchange Act of 1934, as amended (15 U.S.C. 78q-1), the 
effective date of a registration statement for transfer agent activities 
filed by a member bank or a subsidiary thereof, a bank holding company 
or a subsidiary thereof that is a bank as defined in section 3(a)(6) of 
the Act other than a bank specified in clause (i) or (iii) of section 
3(a)(34)(B) of the Act (15 U.S.C. 78c).
    (ii) To withdraw or cancel, under section 17A(c)(3)(C) of the 
Securities Exchange Act of 1934, as amended (15 U.S.C. 78q-1(c)(3)(C)), 
the transfer agent registration of a member bank or a subsidiary 
thereof, a bank holding company, or a subsidiary thereof that is a bank 
as defined in section 3(a)(6) of that Act other than a bank specified in 
clause (i) or (iii) of section 3(a)(34)(B) of the Act (15 U.S.C. 78c), 
that has filed a written notice of withdrawal with the Board or upon a 
finding that such transfer agent is no longer in existence or has ceased 
to do business as a transfer agent.
    (6) Proxy solicitation; financial statements. (i) To permit the 
mailing of proxy and other soliciting materials by a state member bank 
before the expiration of the time prescribed therein under Sec. 208.36 
of Regulation H (12 CFR part 208).

[[Page 333]]

    (ii) To permit the omission of financial statements from reports by 
a state member bank, or to require other financial statements in 
addition to, or in substitution for, the statements required therein 
under Sec. 208.36 of Regulation H (12 CFR part 208).
    (7) Municipal securities dealers. Under section 23 of the Securities 
Exchange Act of 1934 (15 U.S.C. 78w).
    (i) To grant or deny requests for waiver of examination and waiting 
period requirements for municipal securities principals and 
representatives under Municipal Securities Rulemaking Board Rule G-3;
    (ii) To grant or deny requests for a determination that a natural 
person or municipal securities dealer subject to a statutory 
disqualification is qualified to act as a municipal securities 
representative or dealer under Municipal Securities Rulemaking Board 
Rule G-4;
    (iii) To approve or disapprove clearing arrangements under Municipal 
Securities Rulemaking Board Rule G-8, in connection with the 
administration of these rules for municipal securities dealers for which 
the Board is the appropriate regulatory agency under section 3(a)(34) of 
the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(34)).
    (8) Making reports available to SEC. To make available, upon 
request, to the Securities and Exchange Commission reports of 
examination of transfer agents, clearing agencies, and municipal 
securities dealers for which the Board is the appropriate regulatory 
agency for use by the Commission in exercising its supervisory 
responsibilities under the Act under section 17(c)(3) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78q(c)(3)).
    (9) Issuing examination manuals, forms, and other materials. To 
issue examination or inspection manuals, registration, report, 
agreement, and examination forms, guidelines, instructions, and other 
similar materials for use in administering sections 7, 8, 15B, and 
17A(c) of the Securities Exchange Act of 1934 (15 U.S.C. 78g, 78h, 78o-
4, and 78q-1).
    (10) Lists of OTC and foreign margin stocks. To approve issuance of 
the lists of OTC margin stocks and foreign margin stocks and add, omit, 
or remove any stock in circumstances indicating that such change is 
necessary or appropriate in the public interest under Sec. 207.6(d) of 
Regulation G (12 CFR part 207), Sec. 220.17(f) of Regulation T (12 CFR 
part 220), or Sec. 221.7(d) of Regulation U (12 CFR part 221).

[56 FR 25619, June 5, 1991, as amended at 56 FR 67153, 67154, Dec. 30, 
1991; 57 FR 13002, Apr. 15, 1992; 58 FR 6363, Jan. 28, 1993; 58 FR 
26509, May 4, 1993; 62 FR 64996, Dec. 9, 1997; 63 FR 58621, Nov. 2, 
1998; 66 FR 54397, Oct. 26, 2001]



Sec. 265.8  Functions delegated to the Staff Director of the Division 
of International Finance.

    The Board's Staff Director of the Division of International Finance 
(or the Director's delegee) is authorized:
    (a) Establishment of foreign accounts. To approve the establishment 
of foreign accounts and the terms of any account-related agreements with 
the Federal Reserve Bank of New York under section 14(e) of the Federal 
Reserve Act (12 U.S.C. 358).
    (b) [Reserved]



Sec. 265.9  Functions delegated to the Director of Division of
Consumer and Community Affairs.

    The Director of the Board's Division of Consumer and Community 
Affairs (or the Director's delegee) is authorized:
    (a) Issuing examination manuals, forms, and other materials. To 
issue examination or inspection manuals; report, agreement, and 
examination forms; examination procedures, guidelines, instructions, and 
other similar materials pursuant to: section 11(a) of the Federal 
Reserve Act (12 U.S.C. 248(a)); sections 108(b), 621(c), 704(b), 814(c), 
and 917(b) of the Consumer Credit Protection Act (15 U.S.C. 1607(b), 
1681s(b), 1691c(b), 1692l(c) and 1693o(b)); section 305(c) of the Home 
Mortgage Disclosure Act (12 U.S.C. 2804(c)); section 18(f)(3) of the 
Federal Trade Commission Act (15 U.S.C. 57a(f)(3)); section 808(c) of 
the Civil Rights Act of 1968 (42 U.S.C. 3608(c)); section 270(b) of the 
Truth in Savings Act (12 U.S.C. 4309); and section 5 of the Bank Holding 
Company Act of 1956 (12 U.S.C. 1844(c)). The foregoing manuals, forms, 
and other materials are for use within the Federal Reserve System in the 
administration of

[[Page 334]]

enforcement responsibilities in connection with:
    (1) Sections 1-200 and 501-921 of the Consumer Credit Protection Act 
(15 U.S.C. 1601-1693r), in regard to the Truth in Lending Act, the 
Consumer Leasing Act, the Equal Credit Opportunity Act, the Electronic 
Fund Transfer Act, the Fair Credit Reporting Act and the Fair Debt 
Collection Practices Act;
    (2) Sections 301-312 of the Home Mortgage Disclosure Act (12 U.S.C. 
2801-2811);
    (3) Section 18(f)(1)-(3) of the Federal Trade Commission Act (15 
U.S.C. 57a(f)(1)-(3));
    (4) Section 805 of the Civil Rights Act of 1968 (42 U.S.C. 3605) and 
rules and regulations issued thereunder;
    (5) Section 1364 of the National Flood Insurance Act of 1968 (42 
U.S.C. 4101(a)), and sections 105(b) and 202(b) of the Flood Disaster 
Protection Act of 1973 (42 U.S.C. 4012a(b), 4106(b));
    (6) Section 19(j) of the Federal Reserve Act (12 U.S.C. 371b); and
    (7) Sections 801-806 of the Community Reinvestment Act (12 U.S.C. 
2901-2905).
    (8) Sections 261-274 of the Truth in Savings Act (12 U.S.C. 4301-
4313).
    (b) Consumer Advisory Council. Pursuant to section 703(b) of the 
Consumer Credit Protection Act (15 U.S.C. 1691b(b)), to call meetings of 
and consult with the Consumer Advisory Council established under that 
section, approve the agenda for such meetings, and accept any 
resignations from Consumer Advisory Council members.
    (c) Determining inconsistencies between state and federal laws. To 
determine whether a state law is inconsistent with the following federal 
acts and regulations:
    (1) Sections 111, 171(a) and 186(a) of the Truth in Lending Act (15 
U.S.C. 1610(a), 1666j(a), 1667e(a)) and Sec. 226.28 of Regulation Z (12 
CFR part 226) and Sec. 213.7 of Regulation M (12 CFR part 213);
    (2) Section 919 of the Electronic Fund Transfer Act (15 U.S.C. 
1693q), Sec. 205.12 of Regulation E (12 CFR part 205);
    (3) Section 705(f) of the Equal Credit Opportunity Act (15 U.S.C. 
1691d(f) and Sec. 202.11 of Regulation B (12 CFR part 202);
    (4) Section 306(a) of the Home Mortgage Disclosure Act (12 U.S.C. 
2805(a)) and Sec. 203.3 of Regulation C (12 CFR part 203); and
    (5) Section 273 of the Truth in Savings Act (12 U.S.C. 4312) and 
Sec. 230.1 of Regulation DD (12 CFR part 230).
    (d) Interpreting the Fair Credit Reporting Act. To issue 
interpretations pursuant to section 621(e) of the Fair Credit Reporting 
Act (15 U.S.C. 1681s(e));
    (e) Annual adjustments. To adjust as required by law:
    (1) The amount specified in section 103(aa)(1)(B)(ii) of the Truth 
in Lending Act and Sec. 226.32(a)(1)(ii) of Regulation Z (12 CFR part 
226), relating to mortgages bearing fees above a certain amount in 
accord with section 103(aa)(3) of that act (15 U.S.C. 1602(aa)); and
    (2) The amount specified in section 309(b)(1) of the Home Mortgage 
Disclosure Act (12 U.S.C. 2808(b)(1)) and Sec. 203.3(a)(1)(ii) of 
Regulation C (12 CFR part 203) relating to the asset threshold above 
which a depository institution must collect and report data.
    (f) Community Reinvestment Act determinations. To make 
determinations, pursuant to section 804 of the Community Reinvestment 
Act (12 U.S.C. 2903), approving or disapproving:
    (1) Strategic plans and any amendments thereto pursuant to Sec. 
228.27(g) and (h) of Regulation BB (12 CFR part 228); and
    (2) Requests for designation as a wholesale or limited purpose bank 
or the revocation of such designation, pursuant to Sec. 228.25(b) of 
Regulation BB (12 CFR part 228).
    (g) Public hearings. To conduct hearings or other proceedings 
required by law, concerning consumer law or other matters within the 
responsibilities of the Division of Consumer and Community Affairs, in 
consultation with other interested divisions of the Board where 
appropriate.

[56 FR 25619, June 5, 1991, as amended at 56 FR 67154, Dec. 30, 1991; 58 
FR 65540, Dec. 15, 1993; 63 FR 65044, Nov. 25, 1998]

[[Page 335]]



Sec. 265.10  Functions delegated to Secretary of Federal Open 
Market Committee.

    The Secretary of the Federal Open Market Committee (or the Deputy 
Secretary in the Secretary's absence) is authorized:
    (a) Records of policy actions. To approve for inclusion in the 
Board's Annual Report to Congress, records of policy actions of the 
Federal Open Market Committee.
    (b) [Reserved]



Sec. 265.11  Functions delegated to Federal Reserve Banks.

    Each Federal Reserve Bank is authorized as to a member bank or other 
indicated organization for which the Reserve Bank is reponsible for 
receiving applications or registration statements or to take other 
actions as indicated:
    (a) Procedure--(1) Member bank affiliate's reports. To extend the 
time for good cause shown, within which an affiliate of a state member 
bank must file reports under section 9(17) of the Federal Reserve Act 
(12 U.S.C. 334).
    (2) Edge corporation's divestiture of stock. To extend the time in 
which an Edge Act corporation must divest itself of stock acquired in 
satisfaction of a debt previously contracted under section 25A(9) of the 
Federal Reserve Act (12 U.S.C. 615).
    (3) Edge corporation's corporate existence. To extend the period of 
corporate existence of an Edge corporation under section 25A(22) of the 
Federal Reserve Act (12 U.S.C. 628).
    (4) Bank holding company registration statement. To extend the time 
within which a bank holding company must file a registration statement 
under section 5(a) of the Bank Holding Company Act (12 U.S.C. 1844(a)).
    (5) Bank holding company divestiture of nonbanking interests. To 
extend the time within which a bank holding company must divest itself 
of interests in nonbanking organizations under section 4(a) of the Bank 
Holding Company Act (12 U.S.C. 1843(a)).
    (6) Bank holding company divestiture of dpc interests. To extend the 
time within which a bank holding company or any of its subsidiaries must 
divest itself of interests acquired in satisfaction of a debt previously 
contracted:
    (i) Under section 4(c)(2) of the Bank Holding Company Act (12 U.S.C. 
1843(c)(2)) or Sec. 225.22(c)(1) of Regulation Y (12 CFR part 225); or
    (ii) Under sections 2(a)(5)(D) and 3(a) of the Bank Holding Company 
Act (12 U.S.C. 1841(a)(5)(D) and 1842(a)).
    (7) Member bank's surrender of Reserve Bank stock upon withdrawal 
from membership. To extend the time within which a member bank that has 
given notice of intention to withdraw from membership must surrender its 
Federal Reserve Bank stock and its certificate of membership under 
Regulation H (12 CFR 209.3(e)).
    (8) Members bank's reports of condition. To extend the time for 
publication of reports of condition under Regulation H (12 CFR part 208) 
for good cause shown.
    (9) Bank holding company's annual reports. To grant to a bank 
holding company a 90-day extension of time in which to file an annual 
report, and for good cause shown grant an additional extension of time 
not to exceed 90 days under section 5(c) of the Bank Holding Company Act 
(12 U.S.C. 1844(c)).
    (10) Regulation K--Divestiture of foreign portfolio investment, 
joint venture, or subsidiary acquired through debt previously 
contracted. To extend the time within which an investor must divest 
itself of interests in a foreign portfolio investment, joint venture, or 
subsidiary acquired in satisfaction of a debt previously contracted 
under Regulation K (12 CFR 211.5(e)).
    (11) Bank holding company's acquisition of shares, opening new bank, 
consummating merger. To extend the time within which a bank holding 
company may acquire shares, open a new bank to be acquired, or 
consummante a merger in connection with an application approved by the 
Board, if no material change relevant to the proposal has occurred since 
its approval.
    (12) Member bank's establishing domestic or foreign branch; Edge or 
agreement corporation's establishing branch or agency. To extend the 
times within which:
    (i) A member bank may establish a domestic branch;
    (ii) A member bank may establish a foreign branch; or

[[Page 336]]

    (iii) An Edge or agreement corporation may establish a branch or 
agency, if no material change has occurred in the bank's (or 
corporation's) general condition since the application was approved.
    (13) Purchase of stock by Edge or Agreement Corporation, member 
bank, or bank holding company. To extend the time within which an Edge 
or Agreement corporation, member bank, or a bank holding company may 
accomplish a purchase of stock if no material change has occurred in the 
general condition of the corporation, the member bank, or bank holding 
company since such authorization under sections 25 or 25A of the Federal 
Reserve Act or section 4(c)(13) of the Bank Holding Company Act (12 
U.S.C. 615, 628, 1843).)
    (14) Federal Reserve Membership. To extend the time within which 
Federal Reserve membership must be accomplished, if no material change 
has occurred in the bank's general condition since the application was 
approved.
    (15) Enforcement actions; written agreements; cease and desist 
orders. With the prior approval of both the Board's Director of the 
Division of Banking Supervision and Regulation and the Board's General 
Counsel;
    (i) To enter into a written agreement with a bank holding company or 
any nonbanking subsidiary thereof, with a state member bank, or with any 
other person or entity subject to the Board's supervisory jurisdiction 
under 12 U.S.C. 1818(b) concerning the prevention or correction of an 
unsafe or unsound practice in conducting the business of the bank 
holding company, nonbanking subsidiary, or state member bank or other 
entity, or concerning the correction or prevention of any violation of 
law, rule, or regulation, or any condition imposed in writing by the 
Board in connection with the granting of any application or other 
request by the bank or company or any other appropriate matter;
    (ii) To stay, modify, terminate, or suspend an agreement entered 
into pursuant to this paragraph;
    (iii) To stay, modify, terminate, or suspend an outstanding cease 
and desist order that has become final pursuant to 12 U.S.C. 1818 (b) 
and (k). Any agreement authorized under this paragraph may, by its 
terms, be enforceable to the same extent and in the same manner as an 
effective and outstanding cease and desist order that has become final 
pursuant to 12 U.S.C. 1818 (b) and (k).
    (16) Appointment of assistant Federal Reserve agents. To approve the 
appointment of assistant Federal Reserve agents (including 
representatives or alternate representatives of such agents) under 
section 4, paragraph 21 of the Federal Reserve Act (12 U.S.C. 306).
    (b) Availability of Information--(1) Availability of Information; 
Board records. To make available information of the Board of the nature 
and in the circumstances described in the Board's Rules Regarding 
Availability of Information (12 CFR 261.11).
    (2) [Reserved]
    (c) Bank holding companies; Change in bank control; Mergers--(1) 
Require reports under oath. To require reports under oath to determine 
whether a company is complying with section 5(c) of the Bank Holding 
Company Act (12 U.S.C. 1844(c)).
    (2) Acquisition of going concern--authorization of consummation; 
early consummation. (i) To notify a bank holding company that, because 
the circumstances surrounding the application to acquire a going concern 
indicate that additional information is required or that the acquisition 
should be considered by the Board, the acquisition should not be 
consummated until specifically authorized by the Reserve Bank or by the 
Board.
    (ii) To permit a bank holding company to make a proposed acquisition 
of a going concern before the expiration of the 30-day period referred 
to in Regulation Y (12 CFR 225.23(a)(2)) because exigent circumstances 
justify consummation of the acquisition at an earlier time.
    (3) Petition for review of decision that adverse comments are not 
substantive; permit proposed de novo activities; authorization of 
consummation; early consummation. Under Sec. 225.4(b)(1) of Regulation 
Y (12 CFR part 225) and subject to Sec. 265.3 of this part, if a person 
submitting adverse comments that the Reserve Bank had decided are not 
substantive files a petition for review by the Board of that decision:

[[Page 337]]

    (i) To permit a bank holding company to engage de novo in activities 
specified in Sec. 225.25 of Regulation Y (12 CFR part 225), or retain 
shares in a company established de novo and engaging in such activities, 
if the Reserve Bank's evaluation of the considerations specified in 
section 4(c)(8) of the Bank Holding Company Act leads it to conclude 
that the proposal can reasonably be expected to produce benefits to the 
public.
    (ii) To notify a bank holding company that the proposal should not 
be consummated until specifically authorized by the Reserve Bank or by 
the Board or that the proposal should be processed in accordance with 
the procedures in Sec. 225.23(a)(2) of Regulation Y (12 CFR part 225).
    (iii) To permit a bank holding company to consummate the proposal 
before the expiration of the 45-day period referred to in Sec. 
225.23(a)(1) of Regulation Y because exigent circumstances justify 
consummation at an earlier time under Sec. 225.4(b)(1) of Regulation Y 
(12 CFR part 225).
    (4) Permit or stay of modification or location of activities. To 
permit or stay a proposed de novo modification or relocation of 
activities engaged in by a bank holding company on the same basis as de 
novo proposals under Sec. 265.11(d)(3) of this part.
    (5) Notices under change in Bank Control Act. With respect to the 
bank holding company or a state member bank:
    (i) To determine the informational sufficiency of notices and 
reports filed under the Change in Bank Control Act;
    (ii) To extend periods for consideration of notices;
    (iii) To determine whether a person who is or will be subject to a 
presumption described in Sec. 225.41(b) of Regulation Y (12 CFR part 
225) should file a notice regarding a proposed transaction; and
    (iv) To issue a notice of intention not to disapprove a proposed 
change in control if all the following conditions are met:
    (A) No member of the Board has indicated an objection prior to the 
Reserve Bank's action;
    (B) No senior officer or director of an involved party is also a 
director of a Federal Reserve Bank or branch;
    (C) All relevant departments of the Reserve Bank concur;
    (D) If the proposal involves shares of a state member bank or a bank 
holding company controlling a state member bank, the appropriate bank 
supervisory authorities have indicated that they have no objection to 
the proposal, or no objection has been received from them within the 
time allowed by the act; and
    (E) No significant policy issue under the change in Bank Control 
Act, 12 U.S.C. 1817(j) or Sec. 225.41 of Regulation Y (12 CFR part 225) 
is raised by the proposal as to which the Board has not expressed its 
view.
    (6) Failure to comply with publication requirement under change in 
Bank Control Act. To waive, dispense with, modify, or excuse the failure 
to comply with the requirement for publication and solicitation of 
public comment regarding a notice filed under the Change in Bank Control 
Act, with the concurrence of the Board's Director of the Division of 
Banking Supervision and Regulation and the Board's General Counsel, 
provided that a written finding is made that such disclosure or 
solicitation would seriously threaten the safety or soundness of a bank 
holding company or bank under the Change in Bank Control Act (12 U.S.C. 
1817(j)(2)).
    (7) Grandfathered nonbanking activities. To determine under section 
4(a)(2) of the Bank Holding Company Act (12 U.S.C. 1843(a)(2)) that 
termination of grandfathered nonbanking activities of a particular bank 
holding company is not warranted, provided the Reserve Bank is satisfied 
all of the following conditions are met:
    (i) The company or its successor is ``a company covered in 1970'';
    (ii) The nonbanking activities for which indefinite grandfather 
privileges are being sought do not present any significant unsettled 
policy issues; and
    (iii) The bank holding company was lawfully engaged in such 
activities as of June 30, 1968 and has been engaged in such activities 
continuously thereafter.
    (8) Opening of additional nonbanking offices. To approve 
applications by a bank holding company under sections 4(c)(8) and 5(b) 
of the Bank Holding Company Act (12 U.S.C. 1843(c)(8),

[[Page 338]]

1844(b)) and Sec. 225.23(b) of Regulation Y (12 CFR part 225) to open 
additional offices to engage in nonbanking activities for which the bank 
holding company previously received approval pursuant to Board order, 
unless one of the conditions specified in Sec. 265.11(f) (1), (2), (3), 
or (4), of this part is present.
    (9) Notices for addition or change of directors or officers. Under 
section 914(a) of the Financial Institutions Reform, Recovery and 
Enforcement Act (12 U.S.C. 1831i) and subpart H of Regulation Y (12 CFR 
part 225), provided that no senior officer or director or proposed 
senior officer or director of the notificant is also a director of the 
Reserve Bank or a branch of the Reserve Bank:
    (i) To determine the informational sufficiency of notices filed 
pursuant to Sec. 225.72 of Regulation Y; and
    (ii) To waive the prior notice requirements of that section.
    (10) Acquisition approvals under section 5(d)(3) of the FDI Act. To 
approve, under section 5(d)(3)(E) of the Federal Deposit Insurance Act, 
requests by a bank holding company to engage in any transaction 
described in section 5(d)(3)(A) of that Act.
    (11) Applications requiring Board approval; competitive factors 
reports for bank mergers. To approve applications requiring prior 
approval of the Board and furnish to the Comptroller of the Currency and 
the Federal Deposit Insurance Corporation reports on competitive factors 
involved in a bank merger required to be approved by one of those 
agencies, unless one or more of the following conditions is present.
    (i) A member of the Board has indicated an objection prior to the 
Reserve Bank's action; or
    (ii) The Board has indicated that such delegated authority shall not 
be exercised by the Reserve Bank in whole or in part; or
    (iii) A written substantive objection to the application has been 
properly made; or
    (iv) The application raises a significant policy issue or legal 
question on which the Board has not established its position; or
    (v) With respect to bank holding company formations, bank 
acquisitions or mergers, the proposed transaction involves two or more 
banking organizations that, upon consummation of the proposal, would 
control over 35 percent of total deposits (including 50 percent of 
thrift deposits) in banking offices in the relevant geographic market, 
or would result in an increase of at least 200 points in the Herfindahl-
Hirschman Index (HHI) in a highly concentrated market (a market with a 
post-merger HHI of at least 1800); or
    (vi) With respect to nonbank acquisitions, the nonbanking activities 
involved do not clearly fall within activities that the Board has 
designated as permissible for bank holding companies under Sec. 
225.25(b) of Regulation Y.
    (d) International banking--(1) Application to establish Edge 
Corporation. To approve the application by a U.S. banking organization 
to establish an Edge corporation under section 25 of the Federal Reserve 
Act (12 U.S.C. 611) and the Board's Regulation K (12 CFR part 211) if 
all of the following criteria are met:
    (i) The U.S. banking organization meets the capital adequacy 
guidelines and is otherwise in satisfactory condition;
    (ii) The proposed Edge corporation will be a wholly-owned subsidiary 
of a single banking organization; and
    (iii) No other significant policy issue is raised on which the Board 
has not previously expressed its view.
    (2) Issuance of permit to Edge corporation to commence business. To 
issue to an Edge corporation under section 25A of the Federal Reserve 
Act (12 U.S.C. 612) and Regulation K, Sec. 211.4(a) (12 CFR part 211) a 
final permit to commence business and to approve amendments to the 
articles of association of any Edge corporation to reflect the 
following:
    (i) Any increase in capital stock where all additional shares are to 
be acquired by existing shareholders;
    (ii) Any change in the location of the home office in the city where 
the Edge corporation is presently located;
    (iii) Any change in the number of members of the board of directors;
    (iv) Any change in the name; and
    (v) Deletion of the requirements that all directors and shareholders 
must be U.S. citizens.

[[Page 339]]

    (3) Edge corporation establishing branch abroad. To approve, under 
Sec. 211.3(a) Regulation K (12 CFR part 211), an Edge corporation 
application to establish a branch abroad, provided that no senior 
officer or director of the involved parties is also a director of a 
Reserve Bank or branch and that no significant policy issue is raised by 
the proposal as to which the Board has not expressed its view.
    (4) Member bank establishing foreign branch. To approve under Sec. 
211.3(a) of Regulation K (12 CFR part 211) a member bank's establishing, 
directly or indirectly, a foreign branch where the application is not 
one for a full-service branch in a foreign country, provided that no 
senior officer or director of the involved parties is also a director of 
a Reserve Bank or branch and that no significant policy issue is raised 
by the proposal as to which the Board has not expressed its view.
    (5) Agreement with foreign bank concerning deposits of out-of-home-
state branch. To enter into an agreement or undertaking with a foreign 
bank that it shall receive only such deposits at its out-of-home-state 
branch as would be permissible for an Edge corporation under section 5 
of the International Banking Act (12 U.S.C. 3103).
    (6) Waiver of 30-day prior notification period. To waive the 30-day 
prior notification period with respect to a foreign bank's change of 
home state under Sec. 211.22(c)(1) of Regulation K (12 CFR part 211).
    (7) Granting specific consent. To grant prior specific consent to an 
investor for an investment in its first subsidiary or its first joint 
venture, where such investment does not exceed the general consent 
limitations under 211.5(c) of Regulation K (12 CFR part 211).
    (8) Authority under prior-notice procedures. (i) With regard to a 
prior notice to make an investment under Sec. 211.9(f) of Regulation K 
(12 CFR 211.9(f)):
    (A) To suspend the notice period; or
    (B) To require the notificant to file an application for the Board's 
specific consent.
    (ii) With regard to a prior notice of a foreign bank to establish 
certain U.S. offices under Sec. 211.24(a)(2)(i) of Regulation K (12 CFR 
211.24(a)(2)(i)):
    (A) To suspend the notice period; or
    (B) To require that the foreign bank file an application for the 
Board's specific consent.
    (9) Investment in export trading company. To issue a notice of 
intention not to disapprove a proposed investment in an export trading 
company if all the following criteria are met:
    (i) The proposed export trading company will be a wholly-owned 
subsidiary of a single investor, or ownership will be shared with an 
individual or individuals involved in the operation of the export 
trading company;
    (ii) A bank holding company investor and its lead bank meet the 
minimum capital adequacy guidelines of the Board, the Comptroller of the 
Currency, or the Federal Deposit Insurance Corporation or have enacted 
capital enhancement plans that have been determined by the appropriate 
supervisory authority to be acceptable.
    (iii) The proposed activities of the export trading company do not 
include product research or design, product modification, or activities 
not specifically covered by the list of services contained in 
4(c)(14)(F)(ii) of the Bank Holding Company Act (12 U.S.C. 
1843(c)(14)(F)(ii));
    (iv) No other significant policy issue is raised on which the Board 
has not previously expressed its view under section 4(c)(14) of the Bank 
Holding Company Act (12 U.S.C. 1843(c)(14) and Regulation K (12 CFR 
211.31-211.34).
    (10) Futures commission merchant activities. To approve, under Sec. 
211.5(d)(17) of Regulation K (12 CFR part 211), applications to engage 
in futures commission merchant activities on an exchange that requires 
members to guarantee or otherwise contract to cover losses suffered by 
the other members, provided that the Board has previously approved the 
exchange and the application is on the same terms and conditions on 
which the Board based its approval of the exchange.
    (11) Investments in Edge and agreement Corporation subsidiaries. To 
approve an application by a member bank to invest more than 10 percent 
of capital and surplus in Edge and agreement corporation subsidiaries, 
provided that:
    (i) The member bank's total investment, including the retained 
earnings of the Edge and agreement corporation

[[Page 340]]

subsidiaries, does not exceed 20 percent of the bank's capital and 
surplus or would not exceed that level as a result of the proposal; and
    (ii) The proposal raises no significant policy or supervisory 
issues.
    (12) Amendments to Edge corporation charters. To approve amendments 
to Edge corporation charters.
    (e) Member banks--(1) Approval of membership applications. To 
approve applications for membership in the Federal Reserve System under 
section 9 of the Federal Reserve Act (12 USC 321 et seq.) and Regulation 
H (12 CFR part 208) if the Reserve Bank is satisfied that approval is 
warranted after considering the factors set forth in 12 CFR 208.3(b).
    (2) Waiver of notice of intention to withdraw from membership. To 
approve or deny applications by state banks for waiver of the required 
six months' notice of intention to withdraw from Federal Reserve 
membership under section 9(10) of the Federal Reserve Act (12 U.S.C. 
328).
    (3) Approval of branch applications. To approve a state member 
bank's establishment of a domestic branch under section 9 of the Federal 
Reserve Act (12 USC 321 et seq.) and Regulation H (12 CFR part 208) if 
the Reserve Bank is satisfied that approval is warranted after 
considering the factors set forth in 12 CFR 208.6(b).
    (4) Declaration of dividends in excess of net profits. To permit a 
state member bank under section 9(6) of the Federal Reserve Act (12 USC 
324 and 60) to declare dividends in excess of the amounts allowed in 12 
CFR 208.5(c) if the Reserve Bank is satisfied that approval is warranted 
after giving consideration to:
    (i) The banks capitalization in relation to the character and 
condition of its assets and to its deposit liabilities and other 
corporate responsibilities, including the volume of its risk assets and 
of its marginal and inferior quality assets, all considered in relation 
to the strength of its management; and
    (ii) The bank's capitalization after payment of the proposed 
dividends.
    (5) Reduction of capital stock. To permit a state member bank under 
section 9(11) of the Federal Reserve Act (12 USC 239) to reduce its 
capital stock below the amounts set forth in 12 CFR 208.5(d) if the 
state member bank's capitalization thereafter will be:
    (i) In conformity with the requirements of federal law; and
    (ii) Adequate in relation to the character and condition of its 
assets and to its deposit liabilities and other corporate 
responsibilities, including the volume of its risk assets and of its 
marginal and inferior quality assets, all considered in relation to the 
strength of its management.
    (6) Acceptance of drafts and bills of exchange. To permit a member 
bank or a federal or state branch or agency of a foreign bank that is 
subject to reserve requirements under section 7 of the International 
Banking Act of 1978 (12 U.S.C. 3105) to accept drafts or bills of 
exchange under section 13(7) of the Federal Reserve Act (12 U.S.C. 372) 
in an aggregate amount at any one time up to 200 percent of its paid-up 
and unimpaired capital stock and surplus, if the Reserve Bank is 
satisfied that such permission is warranted after giving consideration 
to the institution's capitalization in relation to the character and 
condition of its assets and to its deposit liabilities and other 
corporate responsibilities, including the volume of its risk assets and 
of its marginal and inferior-quality assets, all considered in relation 
to the strength of its management.
    (7) Investment in bank premises in excess of capital stock. To 
permit a state member bank to invest in bank premises under section 24A 
of the Federal Reserve Act (12 USC 371a) in an amount in excess of that 
set forth in 12 CFR 208.21(a), if the Reserve Bank is satisfied that 
approval is warranted after giving consideration to the bank's 
capitalization in relation to the character and condition of its assets 
and to its deposit liabilities and other corporate responsibilities, 
including the volume of its risk assets and of its marginal and inferior 
quality assets, all considered in relation to the strength of its 
management.
    (8) Security devices. To determine whether security devices and 
procedures of state member banks are deficient in meeting the 
requirements of Regulation H (12 CFR part 208) and whether such 
requirements should be

[[Page 341]]

varied in the circumstances of a particular banking office, and whether 
to require corrective action.
    (9) Classifying member banks for election of directors. To classify 
member banks for the purposes of electing Federal Reserve Bank class A 
and class B directors under section 4(16) of the Federal Reserve Act (12 
U.S.C. 304), giving consideration to:
    (i) The statutory requirement that each of the three groups shall 
consist as nearly as may be of banks of similar capitalization; and
    (ii) The desirability that every member bank have the opportunity to 
vote for a class A or a class B director at least once every three 
years.
    (10) Waiver of penalty for deficient reserves. To waive the penalty 
for deficient reserves by a member bank if, after a review of all the 
circumstances relating to the deficiency, the Reserve Bank concludes 
that waiver is warranted, except that in no case may a penalty be waived 
if the deficiency in reserves arises out of the bank's gross negligence 
or conduct inconsistent with the principles and purposes of reserve 
requirements.
    (11) Retirement of subordinated debt. To approve the retirement 
prior to maturity of capital notes described in Sec. 
204.2(a)(1)(vii)(C) of Regulation D (12 CFR part 204) and issued by a 
state member bank, provided the Reserve Bank is satisfied that the 
capital position of the bank will be adequate after the proposed 
redemption.
    (12) Public welfare investments. To permit a state member bank to 
make a public welfare investment that meets the conditions of 12 CFR 
208.22(b)(1)-(3), (b)(5) and (b)(7), if the Reserve Bank is satisfied 
that:
    (i) The state member bank received at least an overall rating of 
``3'' as of its most recent consumer compliance examination; and
    (ii) The aggregate of all such investments of the state member bank 
does not exceed 10 percent of its capital stock and surplus as defined 
under 12 CFR 208.2(d).
    (f) Securities. To approve applications by a registered lender for 
termination of the registration under Sec. 221.3(b)(2) of Regulation U 
(12 CFR 221.3(b)(2)).
    (g) Management interlocks--(1) Change in circumstances requiring 
termination of management interlocks; Regulation L. To grant time for 
compliance with Sec. 121.6 of Regulation L (12 CFR part 212) of up to 
an aggregate of 15 months from the date on which the change in 
circumstances as specified in that section occurs when the additional 
time appears to be appropriate to avoid undue disruption to the 
depository organizations involved in the management interlocks.
    (2) Depository Institutions Management Interlocks Act. After 
consultation with the General Counsel of the Board, to decide not to 
disapprove notices to establish director interlocks with diversified 
savings and loan holding companies. (12 U.S.C. 3204(8)).

[56 FR 25619, June 5, 1991, as amended at 56 FR 67154, Dec. 30, 1991; 57 
FR 11907, Apr. 8, 1992; 57 FR 40600, Sept. 4, 1992; 58 FR 6363, Jan. 28, 
1993; 59 FR 22968, May 4, 1994; 60 FR 22257, May 5, 1995; 63 FR 2839, 
Jan. 16, 1998; 63 FR 58622, Nov. 2, 1998; 66 FR 54398, Oct. 26, 2001; 66 
FR 58656, Nov. 23, 2001]



PART 266_LIMITATIONS ON ACTIVITIES OF FORMER MEMBERS AND EMPLOYEES OF
THE BOARD--Table of Contents



Sec.
266.1 Basis and scope.
266.2 Definitions.
266.3 Limitations.
266.4 Suspension of appearance privilege.
266.5 Criminal penalties.

    Authority: Sec. 11(i), Federal Reserve Act (12 U.S.C. 248(i)); 5 
U.S.C. 552.

    Source: 38 FR 31672, Nov. 16, 1973, unless otherwise noted.



Sec. 266.1  Basis and scope.

    This part, issued under authority of section 11(i) of the Federal 
Reserve Act (12 U.S.C. 248(i)), and pursuant to section 552 of title 5 
of the United States Code, which requires that every agency shall 
publish in the Federal Register its rules of procedure, relates to 
limitations on former members and employees of the Board with respect to 
participation in matters connected with

[[Page 342]]

their former duties and official responsibilities while serving with the 
Board. \1\
---------------------------------------------------------------------------

    \1\ While the Board has not adopted rules with regard to the 
disclosure of unpublished information by former Board members and 
employees, it advises such persons not to disclose unpublished 
information of the Board obtained in the course of their work. Questions 
in this regard may be addressed to the General Counsel or the Secretary 
of the Board.
---------------------------------------------------------------------------



Sec. 266.2  Definitions.

    (a) Employee means a regular officer or employee of the Board; it 
does not include a consultant to the Board. \2\
---------------------------------------------------------------------------

    \2\ While former consultants to the Board are not covered by these 
Rules, they appear to fall within the coverage of section 207 of the 
United States Criminal Code (18 U.S.C. 207) that provides criminal 
penalties for engaging in activities similar, although not identical, to 
those described in paragraphs (a) and (b) of Sec. 266.3.
---------------------------------------------------------------------------

    (b) Official responsibility, with respect to a matter, means 
administrative, supervisory, or decisional authority, whether 
intermediate or final, exercisable alone or with others, personally or 
through subordinates, to approve, disapprove, decide, or recommend Board 
action or to express staff opinions in dealings with the public.
    (c) Appear personally includes personal appearance or attendance 
before, or personal communication, either written or oral, with the 
Board or a Federal Reserve Bank of any member or employee thereof, or 
personal participation in the formulation or preparation of any material 
presented or communicated to, or filed with, the Board, in connection 
with any application or interpretation arising under the statutes or 
regulations administered by the Board or the Federal Reserve Banks, 
except that requests for general information or explanations of Board 
policy or interpretation shall not be construed to be a personal 
appearance.



Sec. 266.3  Limitations.

    (a) Matters on which Board member or employee worked. No former 
member or employee of the Board shall appear personally before the Board 
or a Federal Reserve Bank on behalf of anyone other than the United 
States, an agency thereof, or a Federal Reserve Bank, in connection with 
any judicial or other proceedings, application, request for ruling or 
determination, or other particular matter involving a specific party or 
parties in which the United States, an agency thereof, or a Federal 
Reserve Bank is also a party or has a direct and substantial interest 
and in which he participated personally and substantially as a member or 
employee of the Board through approval, disapproval, decision, 
recommendation, advice, investigation or otherwise.
    (b) Matters within Board member or employee's official 
responsibility. No former member or employee of the Board shall appear 
personally before the Board or a Federal Reserve Bank on behalf of 
anyone other than the United States, an agency thereof, or a Federal 
Reserve Bank, in connection with any judicial or other proceeding, 
application, request for ruling or determination, or other particular 
matter involving a specific party or parties in which the United States, 
an agency thereof, or a Federal Reserve Bank is also a party or has a 
direct and substantial interest, and which matter was in process during 
his tenure of office or period of employment and under his official 
Board responsibility, at any time within a period of one year after the 
termination of such responsibility.
    (c) Consultation as to propriety of appearance before the Board. Any 
former member or employee of the Board who wishes to personally appear 
before the Board or a Federal Reserve Bank on behalf of any party other 
than the United States or an agency thereof or a Federal Reserve Bank at 
any time within two years from termination of employment with the Board 
is advised to consult the General Counsel or the Secretary of the Board 
as to the propriety of such appearance.
    (d) Rulemaking proceedings. Nothing in this section shall preclude a 
former member or employee of the Board from representing another person 
in any Board or Federal Reserve Bank proceeding governed by a rule, 
regulation, standard, or policy of the Board solely by reason of the 
fact that such former member or employee participated in or had official 
responsibility in the formation or adoption of such rule, regulation, 
standard, or policy.

[[Page 343]]

    (e) Effective date. This part shall become effective November 6, 
1973. Notwithstanding the foregoing, the limitations of this part shall 
not apply to any activities with respect to a specific matter before the 
Board in which any former Board member or employee may be engaged on 
September 21, 1973, the date of publication of this part, until the 
expiration of 60 days following the effective date of this part or of 
such additional period as the Secretary of the Board may determine to be 
appropriate in order to avoid inequity.



Sec. 266.4  Suspension of appearance privilege.

    If any person knowingly and willfully fails to comply with the 
provisions of this part, the Board may decline to permit such person to 
appear personally before it or a Federal Reserve Bank for such periods 
of time as it may determine and may impose such other sanctions as the 
Board may deem just and proper.



Sec. 266.5  Criminal penalties.

    Any former member or employee of the Board who engages in actions in 
contravention of paragraph (a) or (b) of Sec. 266.3 may be subject to 
criminal penalties for violation of section 207 of the United States 
Criminal Code (18 U.S.C. 207).



PART 267_RULES OF ORGANIZATION AND PROCEDURE OF THE CONSUMER ADVISORY
COUNCIL--Table of Contents



Sec.
267.1 Statutory authority.
267.2 Purposes and objectives of the Council.
267.3 Members.
267.4 Officers.
267.5 Meetings.
267.6 Amendments.

    Authority: Sec. 703, Equal Credit Opportunity Act, as amended in 
Pub. L. 94-239.

    Source: 41 FR 49802, Nov. 11, 1976, unless otherwise noted.



Sec. 267.1  Statutory authority.

    Section 703 of the Equal Credit Opportunity Act, as amended, 
provides:

    The Board [of Governors of the Federal Reserve System] shall 
establish a Consumer Advisory Council to advise and consult with it in 
the exercise of its functions under the Consumer Credit Protection Act 
and to advise and consult with it concerning other consumer related 
matters it may place before the Council. In appointing the members of 
the Council, the Board shall seek to achieve a fair representation of 
the interests of creditors and consumers. The Council shall meet from 
time to time at the call of the Board. Members of the Council who are 
not regular full-time employees of the United States shall, while 
attending meetings of such Council, be entitled to receive compensation 
at a rate fixed by the Board, but not exceeding $100 per day, including 
travel time. Such members may be allowed travel expenses, including 
transportation and subsistence, while away from their homes or regular 
place of business.



Sec. 267.2  Purposes and objectives of the Council.

    The Council shall advise and consult with the Board in the exercise 
of the Board's functions under the Consumer Credit Protection Act and 
with regard to other matters the Board may place before the Council.



Sec. 267.3  Members.

    (a) The Council shall consist of not more than 30 members appointed 
by the Board. The term of office of each member of the Council shall be 
three years. However, the initial terms of the members first taking 
office shall expire as follows: approximately one-third on December 31, 
1977, and approximately one-third at the end of each of the two 
succeeding calendar years. After the expiration of any member's term of 
office, such member may continue to serve until a successor has been 
appointed by the Board. The Board shall have the authority to appoint 
persons to fill vacancies on the Council.
    (b) Resignation. Any member may resign at any time by giving notice 
to the Board. Any such resignation shall take effect upon its acceptance 
by the Board.
    (c) Compensation. Members who are not regular full-time employees of 
the United States shall be paid travel expenses, including 
transportation and subsistence, and compensation of $100 for each day 
devoted to attending and traveling to and from meetings.

[[Page 344]]



Sec. 267.4  Officers.

    (a) Chairman. The Board shall appoint a Chairman and a Vice Chairman 
from among the members of the Council, who shall serve at the pleasure 
of the Board. The Chairman, or in the Chairman's absence the Vice 
Chairman, shall preside at all meetings of the Council. The Board may 
appoint a Chairman pro tem who shall preside at a meeting of the Council 
in the absence of the Chairman and Vice Chairman.
    (b) Secretary. The Board shall designate a member of its staff, who 
may but need not be the representative described in Sec. 267.5(c), to 
act as Secretary of the Council. The Secretary shall record and maintain 
minutes of the meetings of the Council. Minutes of each meeting shall 
contain, among other things, a record of the persons present, a 
description of the matters discussed, and recommendations made. The 
person acting as Secretary at a meeting shall certify to the accuracy of 
the minutes of that meeting.



Sec. 267.5  Meetings.

    (a) Time. Meetings of the Council shall be held at least once each 
year and may be held more frequently at the call of the Board.
    (b) Agenda. Each meeting of the Council shall be conducted in 
accordance with an agenda formulated or approved by the Board.
    (c) Board representation. Each meeting of the Council shall be 
attended by a representative of the Board who is either a member of the 
Board or of the Board's staff. The Board representative shall have 
authority to and shall adjourn any meeting of the Council when such 
representative considers adjournment to be in the public interest.
    (d) Public nature. (1) Each meeting of the Council shall, to the 
extent of reasonably available facilities, be open to public observation 
unless the Board, in accordance with paragraph (d)(6), of this section, 
determines that the meeting shall be closed.
    (2) Notice of the time, place and purpose of each meeting, as well 
as a summary of the proposed agenda, shall be published in the Federal 
Register not more than 45 or less than 15 days prior to the scheduled 
meeting date. Insofar as is practicable, a list of persons and 
organizations interested in the Council shall be maintained, and a 
notice of each meeting shall be mailed to such persons and organizations 
at least 15 days in advance of the scheduled meeting date. Shorter 
notice may be given when the Board determines that its business so 
requires; in such event, the public, including persons and organizations 
described in the preceding sentence, will be given notice at the 
earliest practicable time.
    (3) Members of the public may file written statements with the 
Council prior to the meeting concerning matters on the Council's agenda. 
The person presiding at the Council meeting may permit members of the 
public to submit written statements on such matters within a specified 
time after the Council meeting. All such submissions shall be circulated 
to the Council members as soon as is practicable.
    (4) Oral presentations at the Council meetings by members of the 
public shall not be permitted except upon invitation of the Council. 
However, if the Council and the Board determine that public hearings 
regarding a matter or matters of concern to the Council are warranted, 
members of the public may make presentations at such hearings in 
accordance with procedures established therefor.
    (5) Minutes of meetings, records, reports, studies, and agenda of 
the Council shall be available to the public for copying at the Board's 
offices in Washington, DC, in accordance with the provisions of 12 CFR 
part 261 Rules Regarding Availability of Information. Requests for 
copies of such documents should be addressed to the Secretary, Board of 
Governors of the Federal Reserve System, Washington, DC 20551.
    (6) The Board may close to the public any meeting, or any portion of 
any meeting, of the Council if it determines that such meeting or 
portion thereof is likely to:
    (i) Disclose matters that relate solely to internal personnel rules 
and practices of the Council;
    (ii) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;

[[Page 345]]

    (iii) Involve accusing any person of a crime, or formally censuring 
any person;
    (iv) Disclose information of a personal nature where disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (v) Disclose information contained in or related to examination, 
operating or condition reports prepared by, on behalf of, or for the use 
of an agency responsible for the regulation or supervision of financial 
institutions;
    (vi) Disclose information the premature disclosure of which would be 
likely to lead to significant financial speculation in currencies, 
securities, or commodities or significantly endanger the stability of 
any financial institution;
    (vii) Disclose information the premature disclosure of which would 
be likely to frustrate significantly implementation of a proposed Board 
action, unless the Board has already disclosed to the public the content 
or nature of its proposed action, or where the Board is required by law 
to make such disclosure on its own initiative prior to taking final 
action on the proposal; or
    (viii) Which relate to any legal proceedings, agency adjudicatory 
proceeding or arbitration involving the Board or the Council.
    (e) If the Board closes a meeting or any portion of a meeting, the 
Council will issue, at least annually, a report containing a summary, 
consistent with 5 U.S.C. 552(b) (1970), of the Council's activities 
during such closed meetings or portions of meetings.



Sec. 267.6  Amendments.

    These rules of organization and procedure may be amended or repealed 
at any time by action of the Board, provided, however, that members of 
the Council shall be promptly notified by the Board of any such action.



PART 268_RULES REGARDING EQUAL OPPORTUNITY--Table of Contents



             Subpart A_General Provisions and Administration

Sec.
268.1 Authority, purpose and scope.
268.2 Definitions.

          Subpart B_Board Program To Promote Equal Opportunity

268.101 General policy for equal opportunity.
268.102 Board program for equal employment opportunity.
268.103 Complaints of discrimination covered by this part.
268.104 Pre-complaint processing.
268.105 Individual complaints.
268.106 Dismissals of complaints.
268.107 Investigation of complaints.
268.108 Hearings.
268.109 Final action by the Board.

        Subpart C_Provisions Applicable to Particular Complaints

268.201 Age Discrimination in Employment Act.
268.202 Equal Pay Act.
268.203 Rehabilitation Act.
268.204 Class complaints.
268.205 Employment of aliens; Access to sensitive information.

                       Subpart D_Related Processes

268.301 Negotiated grievance procedure.
268.302 Mixed case complaints.

    Subpart E_Appeals to the Equal Employment Opportunity Commission

268.401 Appeals to the Equal Employment Opportunity Commission.
268.402 Time for appeals to the Equal Employment Opportunity Commission.
268.403 How to appeal.
268.404 Appellate Procedure.
268.405 Decisions on appeals.
268.406 Civil action: Title VII, Age Discrimination in Employment Act 
          and Rehabilitation Act.
268.407 Civil action: Equal Pay Act.
268.408 Effect of filing a civil action.

                   Subpart F_Remedies and Enforcement

268.501 Remedies and relief.
268.502 Compliance with final Commission decisions.
268.503 Enforcement of final EEOC decisions.
268.504 Compliance with settlement agreements and final actions.
268.505 Interim relief.

               Subpart G_Matters of General Applicability

268.601 EEO group statistics.
268.602 Reports to the Commission.
268.603 Voluntary settlement attempts.
268.604 Filing and computation of time.
268.605 Representation and official time.

[[Page 346]]

268.606 Joint processing and consolidation of complaints.
268.607 Delegation of Authority.

   Subpart H_Prohibition Against Discrimination in Board Programs and 
          Activities Because of a Physical or Mental Disability

268.701 Purpose and application.
268.702 Definitions
268.703 Notice.
268.704 General prohibition against discrimination.
268.705 Employment.
268.706 Program accessibility: Discrimination prohibited.
268.707 Program accessibility: Existing facilities.
268.708 Program accessibility: New construction and alterations.
268.709 Communications.
268.710 Compliance procedures.

    Authority: 12 U.S.C. 244 and 248(i), (k) and (1).

    Source: 68 FR 18085, Apr. 15, 2003, unless otherwise noted.



             Subpart A_General Provisions and Administration



Sec. 268.1  Authority, purpose and scope.

    (a) Authority. The regulations in this part (12 CFR part 268) are 
issued by the Board of Governors of the Federal Reserve System (Board) 
under the authority of sections 10(4) and 11(i), (k), and (l) of the 
Federal Reserve Act (partially codified in 12 U.S.C. 244 and 248(i), (k) 
and (1)).
    (b) Purpose and scope. This part sets forth the Board's policy, 
program and procedures for providing equal opportunity to Board 
employees and applicants for employment without regard to race, color, 
religion, sex, national origin, age, or physical or mental disability. 
It also sets forth the Board's policy, program and procedures for 
prohibiting discrimination on the basis of physical or mental disability 
in programs and activities conducted by the Board. It also specifies the 
circumstances under which the Board will hire or decline to hire persons 
who are not citizens of the United States, consistent with the Board's 
operational needs and applicable law.



Sec. 268.2  Definitions.

    The definitions contained in this section shall have the following 
meanings throughout this part unless otherwise stated.
    (a) Commission or EEOC means the Equal Employment Opportunity 
Commission.
    (b) Title VII means Title VII of the Civil Rights Act (42 U.S.C. 
2000e et seq.).



          Subpart B_Board Program To Promote Equal Opportunity



Sec. 268.101  General policy for equal opportunity.

    (a) It is the policy of the Board to provide equal opportunity in 
employment for all persons, to prohibit discrimination in employment 
because of race, color, religion, sex, national origin, age or 
disability, and to promote the full realization of equal opportunity in 
employment through a continuing affirmative program.
    (b) No person shall be subject to retaliation for opposing any 
practice made unlawful by Title VII of the Civil Rights Act (title VII) 
(42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act 
(ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)), or 
the Rehabilitation Act (29 U.S.C. 791 et seq.) or for participating in 
any stage of administrative or judicial proceedings under those 
statutes.



Sec. 268.102  Board program for equal employment opportunity.

    (a) The Board shall maintain a continuing affirmative program to 
promote equal opportunity and to identify and eliminate discriminatory 
practices and policies. In support of this program, the Board shall:
    (1) Provide sufficient resources to its equal opportunity program to 
ensure efficient and successful operation;
    (2) Provide for the prompt, fair and impartial processing of 
complaints in accordance with this part and the instructions contained 
in the Commission's Management Directives;
    (3) Conduct a continuing campaign to eradicate every form of 
prejudice or discrimination from the Board's personnel policies, 
practices and working conditions;
    (4) Communicate the Board's equal employment opportunity policy and 
program and its employment needs to all sources of job candidates 
without

[[Page 347]]

regard to race, color, religion, sex, national origin, age or 
disability, and solicit their recruitment assistance on a continuing 
basis;
    (5) Review, evaluate and control managerial and supervisory 
performance in such a manner as to insure a continuing affirmative 
application and vigorous enforcement of the policy of equal opportunity, 
and provide orientation, training and advice to managers and supervisors 
to assure their understanding and implementation of the equal employment 
opportunity policy and program;
    (6) Take appropriate disciplinary action against employees who 
engage in discriminatory practices;
    (7) Make reasonable accommodation to the religious needs of 
employees and applicants for employment when those accommodations can be 
made without undue hardship on the business of the Board;
    (8) Make reasonable accommodation to the known physical or mental 
limitations of qualified applicants and employees with a disability 
unless the accommodation would impose an undue hardship on the 
operations of the Board's program;
    (9) Provide recognition to employees, supervisors, managers and 
units demonstrating superior accomplishment in equal employment 
opportunity;
    (10) Establish a system for periodically evaluating the 
effectiveness of the Board's overall equal employment opportunity 
effort;
    (11) Provide the maximum feasible opportunity to employees to 
enhance their skills through on-the-job training, work-study programs 
and other training measures so that they may perform at their highest 
potential and advance in accordance with their abilities;
    (12) Inform its employees and recognized labor organizations of the 
Board's affirmative equal opportunity policy and program and enlist 
their cooperation; and
    (13) Participate at the community level with other employers, with 
schools and universities and with other public and private groups in 
cooperative action to improve employment opportunities and community 
conditions that affect employability.
    (b) In order to implement its program, the Board shall:
    (1) Develop the plans, procedures and regulations necessary to carry 
out its program;
    (2) Establish or make available an alternative dispute resolution 
program. Such program must be available for both the precomplaint 
process and the formal complaint process.
    (3) Appraise its personnel operations at regular intervals to assure 
their conformity with the Board's program, this part 268 and the 
instructions contained in the Commission's management directives;
    (4) Designate a Director for Equal Employment Opportunity (EEO 
Programs Director), EEO Officer(s), and such Special Emphasis Program 
Managers/Coordinators (e.g., People with Disabilities Program, Federal 
Women's Program and Hispanic Employment Program), clerical and 
administrative support as may be necessary to carry out the functions 
described in this part in all organizational units of the Board and at 
all Board installations. The EEO Programs Director shall be under the 
immediate supervision of the Chairman.
    (5) Make written materials available to all employees and applicants 
informing them of the variety of equal employment opportunity programs 
and administrative and judicial remedial procedures available to them 
and prominently post such written materials in all personnel and EEO 
offices and throughout the workplace;
    (6) Ensure that full cooperation is provided by all Board employees 
to EEO Counselors and Board EEO personnel in the processing and 
resolution of pre-complaint matters and complaints within the Board and 
that full cooperation is provided to the Commission in the course of 
appeals, including, granting the Commission routine access to personnel 
records of the Board when required in connection with an investigation;
    (7) Publicize to all employees and post at all times the names, 
business telephone numbers and business addresses of the EEO Counselors 
(unless the counseling function is centralized, in which case only the 
telephone number and address need be publicized and

[[Page 348]]

posted), a notice of the time limits and necessity of contacting a 
Counselor before filing a complaint and the telephone numbers and 
addresses of the EEO Programs Director, EEO Officer(s) and the Special 
Emphasis Program Managers/Coordinators.
    (c) The EEO Programs Director shall be responsible for:
    (1) Advising the Board of Governors with respect to the preparation 
of national and regional equal employment opportunity plans, procedures, 
regulations, reports and other matters pertaining to the policy in Sec. 
268.101 and the Board's program;
    (2) Evaluating from time to time the sufficiency of the total Board 
program for equal employment opportunity and reporting to the Board of 
Governors with recommendations as to any improvement or correction 
needed, including remedial or disciplinary action with respect to 
managerial, supervisory or other employees who have failed in their 
responsibilities;
    (3) When authorized by the Board of Governors, making changes in 
programs and procedures designed to eliminate discriminatory practices 
and to improve the Board's program for equal employment opportunity;
    (4) Providing for counseling of aggrieved individuals and for the 
receipt and processing of individual and class complaints of 
discrimination; and
    (5) Assuring that individual complaints are fairly and thoroughly 
investigated and that final action is taken in a timely manner in 
accordance with this part.
    (d) Directives, instructions, forms and other Commission materials 
referenced in this part may be obtained in accordance with the 
provisions of 29 CFR 1610.7.



Sec. 268.103  Complaints of discrimination covered by this part.

    (a) Individual and class complaints of employment discrimination and 
retaliation prohibited by title VII (discrimination on the basis of 
race, color, religion, sex and national origin), the ADEA 
(discrimination on the basis of age when the aggrieved person is at 
least 40 years of age), the Rehabilitation Act (discrimination on the 
basis of disability), or the Equal Pay Act (sex-based wage 
discrimination) shall be processed in accordance with this part. 
Complaints alleging retaliation prohibited by these statutes are 
considered to be complaints of discrimination for purposes of this part.
    (b) This part applies to all Board employees and applicants for 
employment at the Board, and to all employment policies or practices 
affecting Board employees or applicants for employment.
    (c) This part does not apply to Equal Pay Act complaints of 
employees whose services are performed within a foreign country or 
certain United States territories as provided in 29 U.S.C. 213(f).



Sec. 268.104  Pre-complaint processing.

    (a) Aggrieved persons who believe they have been discriminated 
against on the basis of race, color, religion, sex, national origin, age 
or disability must consult a Counselor prior to filing a complaint in 
order to try to informally resolve the matter.
    (1) An aggrieved person must initiate contact with a Counselor 
within 45 days of the date of the matter alleged to be discriminatory 
or, in the case of a personnel action, within 45 days of the effective 
date of the action.
    (2) The Board or the Commission shall extend the 45-day time limit 
in paragraph (a)(1) of this section when the individual shows that he or 
she was not notified of the time limits and was not otherwise aware of 
them, that he or she did not know and reasonably should not have known 
that the discriminatory matter or personnel action occurred, that 
despite due diligence he or she was prevented by circumstances beyond 
his or her control from contacting the counselor within the time limits, 
or for other reasons considered sufficient by the Board or the 
Commission.
    (b)(1) At the initial counseling session, Counselors must advise 
individuals in writing of their rights and responsibilities, including 
the right to request a hearing or an immediate final decision after an 
investigation by the Board in accordance with Sec. 268.107(f), election 
rights pursuant to Sec. 268.302, the right to file a notice of intent 
to sue pursuant to Sec. 268.201(a) and a lawsuit

[[Page 349]]

under the ADEA instead of an administrative complaint of age 
discrimination under this part, the duty to mitigate damages, 
administrative and court time frames, and that only the claims raised in 
precomplaint counseling (or issues or claims like or related to issues 
or claims raised in pre-complaint counseling) may be alleged in a 
subsequent complaint filed with the Board. Counselors must advise 
individuals of their duty to keep the Board and the Commission informed 
of their current address and to serve copies of appeal papers on the 
Board. The notice required by paragraphs (d) or (e) of this section 
shall include a notice of the right to file a class complaint. If the 
aggrieved person informs the Counselor that he or she wishes to file a 
class complaint, the Counselor shall explain the class complaint 
procedures and the responsibilities of a class agent.
    (2) Counselors shall advise aggrieved persons that, where the Board 
agrees to offer ADR in the particular case, they may choose between 
participation in the alternative dispute resolution program and the 
counseling activities provided for in paragraph (c) of this section.
    (c) Counselors shall conduct counseling activities in accordance 
with instructions contained in Commission Management Directives. When 
advised that a complaint has been filed by an aggrieved person, the 
Counselor shall submit a written report within 15 days to the EEO 
Programs Director and the aggrieved person concerning the issues 
discussed and actions taken during counseling.
    (d) Unless the aggrieved person agrees to a longer counseling period 
under paragraph (e) of this section, or the aggrieved person chooses an 
alternative dispute resolution procedure in accordance with paragraph 
(b)(2) of this section, the Counselor shall conduct the final interview 
with the aggrieved person within 30 days of the date the aggrieved 
person contacted the Board's EEO Programs Office to request counseling. 
If the matter has not been resolved, the aggrieved person shall be 
informed in writing by the Counselor, not later than the thirtieth day 
after contacting the Counselor, of the right to file a discrimination 
complaint with the Board. This notice shall inform the complainant of 
the right to file a discrimination complaint within 15 days of receipt 
of the notice, of the appropriate official with whom to file a complaint 
and of the complainant's duty to assure that the EEO Programs Director 
is informed immediately if the complainant retains counsel or a 
representative.
    (e) Prior to the end of the 30-day period, the aggrieved person may 
agree in writing with the Board to postpone the final interview and 
extend the counseling period for an additional period of no more than 60 
days. If the matter has not been resolved before the conclusion of the 
agreed extension, the notice described in paragraph (d) of this section 
shall be issued.
    (f) Where the aggrieved person chooses to participate in an 
alternative dispute resolution procedure in accordance with paragraph 
(b)(2) of this section, the pre-complaint processing period shall be 90 
days. If the claim has not been resolved before the 90th day, the notice 
described in paragraph (d) of this section shall be issued.
    (g) The Counselor shall not attempt in any way to restrain the 
aggrieved person from filing a complaint. The Counselor shall not reveal 
the identity of an aggrieved person who consulted the Counselor, except 
when authorized to do so by the aggrieved person, or until the Board has 
received a discrimination complaint under this part from that person 
involving the same matter.



Sec. 268.105  Individual complaints.

    (a) A complaint must be filed with the agency that allegedly 
discriminated against the complainant.
    (b) A complaint must be filed within 15 days of receipt of the 
notice required by Sec. 268.104 (d), (e) or (f).
    (c) A complaint must contain a signed statement from the person 
claiming to be aggrieved or that person's attorney. This statement must 
be sufficiently precise to identify the aggrieved individual and the 
Board and to describe generally the action(s) or practice(s) that form 
the basis of the complaint. The complaint must also

[[Page 350]]

contain a telephone number and address where the complainant or the 
representative can be contacted.
    (d) A complainant may amend a complaint at any time prior to the 
conclusion of the investigation to include issues or claims like or 
related to those raised in the complaint. After requesting a hearing, a 
complainant may file a motion with the administrative judge to amend a 
complaint to include issues or claims like or related to those raised in 
the complaint.
    (e) The Board shall acknowledge receipt of a complaint or an 
amendment to a complaint in writing and inform the complainant of the 
date on which the complaint or amendment was filed. The Board shall 
advise the complainant in the acknowledgment of the EEOC office and its 
address where a request for a hearing shall be sent. Such acknowledgment 
shall also advise the complainant that:
    (1) The complainant has the right to appeal the final action on or 
dismissal of a complaint; and
    (2) The Board is required to conduct an impartial and appropriate 
investigation of the complaint within 180 days of the filing of the 
complaint unless the parties agree in writing to extend the time period. 
When a complaint has been amended, the Board shall complete its 
investigation within the earlier of 180 days after the last amendment to 
the complaint or 360 days after the filing of the original complaint, 
except that the complainant may request a hearing from an administrative 
judge on the consolidated complaints any time after 180 days from the 
date of the first filed complaint.



Sec. 268.106  Dismissals of complaints.

    (a) Prior to a request for a hearing in a case, the Board shall 
dismiss an entire complaint:
    (1) That fails to state a claim under Sec. 268.103 or Sec. 
268.105(a), or states the same claim that is pending before or has been 
decided by the Board or the Commission;
    (2) That fails to comply with the applicable time limits contained 
in Sec. Sec. 268.104, 268.105 and 268.204(c), unless the Board extends 
the time limits in accordance with Sec. 268.604(c), or that raises a 
matter that has not been brought to the attention of a Counselor and is 
not like or related to a matter that has been brought to the attention 
of a Counselor;
    (3) That is the basis of a pending civil action in a United States 
District Court in which the complainant is a party provided that at 
least 180 days have passed since the filing of the administrative 
complaint, or that was the basis of a civil action decided by a United 
States District Court in which the complainant was a party;
    (4) Where a complainant has raised the matter in an appeal to the 
Merit Systems Protection Board and Sec. 268.302 indicates that the 
complainant has elected to pursue the non-EEO process;
    (5) That is moot or alleges that a proposal to take a personnel 
action, or other preliminary step to taking a personnel action, is 
discriminatory;
    (6) Where the complainant cannot be located, provided that 
reasonable efforts have been made to locate the complainant and the 
complainant has not responded within 15 days to a notice of proposed 
dismissal sent to his or her last known address;
    (7) Where the Board has provided the complainant with a written 
request to provide relevant information or otherwise proceed with the 
complaint, and the complainant has failed to respond to the request 
within 15 days of its receipt or the complainant's response does not 
address the Board's request, provided that the request included a notice 
of the proposed dismissal. Instead of dismissing for failure to 
cooperate, the complaint may be adjudicated if sufficient information 
for that purpose is available;
    (8) That alleges dissatisfaction with the processing of a previously 
filed complaint; or
    (9) Where the Board, strictly applying the criteria set forth in 
Commission decisions, finds that the complaint is part of a clear 
pattern of misuse of the EEO process for a purpose other than the 
prevention and elimination of employment discrimination. A clear pattern 
of misuse of the EEO process requires:
    (i) Evidence of multiple complaint filings; and

[[Page 351]]

    (ii) Allegations that are similar or identical, lack specificity or 
involve matters previously resolved; or
    (iii) Evidence of circumventing other administrative processes, 
retaliating against the Board's in-house administrative processes or 
overburdening the EEO complaint system.
    (b) Where the Board believes that some but not all of the claims in 
a complaint should be dismissed for the reasons contained in paragraphs 
(a)(1) through (9) of this section, the Board shall notify the 
complainant in writing of its determination, the rationale for that 
determination and that those claims will not be investigated, and shall 
place a copy of the notice in the investigative file. A determination 
under this paragraph is reviewable by an administrative judge if a 
hearing is requested on the remainder of the complaint, but is not 
appealable until final action is taken on the remainder of the 
complaint.



Sec. 268.107  Investigation of complaints.

    (a) The investigation of complaints filed against the Board shall be 
conducted by the Board.
    (b) In accordance with instructions contained in Commission 
Management Directives, the Board shall develop an impartial and 
appropriate factual record upon which to make findings on the claims 
raised by the written complaint. An appropriate factual record is one 
that allows a reasonable fact finder to draw conclusions as to whether 
discrimination occurred. The Board may use an exchange of letters or 
memoranda, interrogatories, investigations, fact-finding conferences or 
any other fact-finding methods that efficiently and thoroughly address 
the matters at issue. The Board may incorporate alternative dispute 
resolution techniques into its investigative efforts in order to promote 
early resolution of complaints.
    (c) The procedures in paragraphs (c)(1) through (3) of this section 
apply to the investigation of complaints:
    (1) The complainant, the Board, and any employee of the Board shall 
produce such documentary and testimonial evidence as the investigator 
deems necessary.
    (2) Investigators are authorized to administer oaths. Statements of 
witnesses shall be made under oath or affirmation or, alternatively, by 
written statement under penalty of perjury.
    (3) When the complainant, or the Board or its employees fail without 
good cause shown to respond fully and in timely fashion to requests for 
documents, records, comparative data, statistics, affidavits or the 
attendance of witness(es), the investigator may note in the 
investigative record that the decisionmaker should, or the Commission on 
appeal may, in appropriate circumstances:
    (i) Draw an adverse inference that the requested information, or the 
testimony of the requested witness, would have reflected unfavorably on 
the party refusing to provide the requested information;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to produce 
the requested information or witness;
    (iv) Issue a decision fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as it deems appropriate.
    (d) Any investigation will be conducted by investigators with 
appropriate security clearances.
    (e)(1) The Board shall complete its investigation within 180 days of 
the date of filing of an individual complaint or within the time period 
contained in an order from the Office of Federal Operations on an appeal 
from a dismissal pursuant to Sec. 268.106. By written agreement within 
those time periods, the complainant and the Board may voluntarily extend 
the time period for not more than an additional 90 days. The Board may 
unilaterally extend the time period or any period of extension for not 
more than 30 days where it must sanitize a complaint file that may 
contain information classified pursuant to Executive Order No. 12356, or 
successor orders, as secret in the interest of national defense or 
foreign policy, provided the Board notifies the complainant of the 
extension.
    (2) Confidential supervisory information, as defined in 12 CFR 
261.2(c), and

[[Page 352]]

other confidential information of the Board may be included in the 
investigative file by the investigator, the EEO Programs Director, or 
another appropriate officer of the Board, where such information is 
relevant to the complaint. Neither the complainant nor the complainant's 
personal representative may make further disclosure of such information, 
however, except in compliance with the Board's Rules Regarding 
Availability of Information, 12 CFR part 261, and where applicable, the 
Board's Rules Regarding Access to Personal Information under the Privacy 
Act of 1974, 12 CFR part 261a.
    (f) Within 180 days from the filing of the complaint, or where a 
complaint was amended, within the earlier of 180 days after the last 
amendment to the complaint or 360 days after the filing of the original 
complaint, within the time period contained in an order from the Office 
of Federal Operations on an appeal from a dismissal, or within any 
period of extension provided for in paragraph (e) of this section, the 
Board shall provide the complainant with a copy of the investigative 
file, and shall notify the complainant that, within 30 days of receipt 
of the investigative file, the complainant has the right to request a 
hearing and decision from an administrative judge or may request an 
immediate final decision pursuant to Sec. 268.109(b) from the Board.
    (g) Where the complainant has received the notice required in 
paragraph (f) of this section or at any time after 180 days have elapsed 
from the filing of the complaint, the complainant may request a hearing 
by submitting a written request for a hearing directly to the EEOC 
office indicated in the Board's acknowledgment letter. The complainant 
shall send a copy of the request for a hearing to the Board's EEO 
Programs Office. Within 15 days of receipt of the request for a hearing, 
the Board's EEO Programs Office shall provide a copy of the complaint 
file to EEOC and, if not previously provided, to the complainant.



Sec. 268.108  Hearings.

    (a) When a complainant requests a hearing, the Commission shall 
appoint an administrative judge to conduct a hearing in accordance with 
this section. Upon appointment, the administrative judge shall assume 
full responsibility for the adjudication of the complaint, including 
overseeing the development of the record. Any hearing will be conducted 
by an administrative judge or hearing examiner with appropriate security 
clearances.
    (b) Dismissals. Administrative judges may dismiss complaints 
pursuant to Sec. 268.106, on their own initiative, after notice to the 
parties, or upon the Board's motion to dismiss a complaint.
    (c) Offer of resolution. (1) Any time after the filing of the 
written complaint but not later than the date an administrative judge is 
appointed to conduct a hearing, the Board may make an offer of 
resolution to a complainant who is represented by an attorney.
    (2) Any time after the parties have received notice that an 
administrative judge has been appointed to conduct a hearing, but not 
later than 30 days prior to the hearing, the Board may make an offer of 
resolution to the complainant, whether represented by an attorney or 
not.
    (3) The offer of resolution shall be in writing and shall include a 
notice explaining the possible consequences of failing to accept the 
offer. The Board's offer, to be effective, must include attorney's fees 
and costs and must specify any non-monetary relief. With regard to 
monetary relief, the Board may make a lump sum offer covering all forms 
of monetary liability, or it may itemize the amounts and types of 
monetary relief being offered. The complainant shall have 30 days from 
receipt of the offer of resolution to accept it. If the complainant 
fails to accept an offer of resolution and the relief awarded in the 
administrative judge's decision, the Board's final decision, or the 
Commission's decision on appeal is not more favorable than the offer, 
then, except where the interest of justice would not be served, the 
complainant shall not receive payment from the Board of attorney's fees 
or costs incurred after the expiration of the 30-day acceptance period. 
An acceptance of an offer must be in writing and will be timely if 
postmarked or received within the 30-day period. Where

[[Page 353]]

a complainant fails to accept an offer of resolution, the Board may make 
other offers of resolution and either party may seek to negotiate a 
settlement of the complaint at any time.
    (d) Discovery. The administrative judge shall notify the parties of 
the right to seek discovery prior to the hearing and may issue such 
discovery orders as are appropriate. Unless the parties agree in writing 
concerning the methods and scope of discovery, the party seeking 
discovery shall request authorization from the administrative judge 
prior to commencing discovery. Both parties are entitled to reasonable 
development of evidence on matters relevant to the issues raised in the 
complaint, but the administrative judge may limit the quantity and 
timing of discovery. Evidence may be developed through interrogatories, 
depositions, and requests for admissions, stipulations or production of 
documents. It shall be grounds for objection to producing evidence that 
the information sought by either party is irrelevant, overburdensome, 
repetitious, or privileged.
    (e) Conduct of hearing. The Board shall provide for the attendance 
at a hearing of all employees approved as witnesses by an administrative 
judge. Attendance at hearings will be limited to persons determined by 
the administrative judge to have direct knowledge relating to the 
complaint. Hearings are part of the investigative process and are thus 
closed to the public. The administrative judge shall have the power to 
regulate the conduct of a hearing, limit the number of witnesses where 
testimony would be repetitious, and exclude any person from the hearing 
for contumacious conduct or misbehavior that obstructs the hearing. The 
administrative judge shall receive into evidence information or 
documents relevant to the complaint. Rules of evidence shall not be 
applied strictly, but the administrative judge shall exclude irrelevant 
or repetitious evidence. The administrative judge or the Commission may 
refer to the Disciplinary Committee of the appropriate Bar Association 
any attorney or, upon reasonable notice and an opportunity to be heard, 
suspend or disqualify from representing complainants or agencies in EEOC 
hearings any representative who refuses to follow the orders of an 
administrative judge, or who otherwise engages in improper conduct.
    (f) Procedures. (1) The complainant, the Board and any employee of 
the Board shall produce such documentary and testimonial evidence as the 
administrative judge deems necessary. The administrative judge shall 
serve all orders to produce evidence on both parties.
    (2) Administrative judges are authorized to administer oaths. 
Statements of witnesses shall be made under oath or affirmation or, 
alternatively, by written statement under penalty of perjury.
    (3) When the complainant, or the Board, or its employees fail 
without good cause shown to respond fully and in timely fashion to an 
order of an administrative judge, or requests for the investigative 
file, for documents, records, comparative data, statistics, affidavits, 
or the attendance of witness(es), the administrative judge shall, in 
appropriate circumstances:
    (i) Draw an adverse inference that the requested information, or the 
testimony of the requested witness, would have reflected unfavorably on 
the party refusing to provide the requested information;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to produce 
the requested information or witness;
    (iv) Issue a decision fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as appropriate.
    (g) Decisions without hearing. (1) If a party believes that some or 
all material facts are not in genuine dispute and there is no genuine 
issue as to credibility, the party may, at least 15 days prior to the 
date of the hearing or at such earlier time as required by the 
administrative judge, file a statement with the administrative judge 
prior to the hearing setting forth the fact or facts and referring to 
the parts of the record relied on to support the statement. The 
statement must demonstrate that there is no genuine issue

[[Page 354]]

as to any such material fact. The party shall serve the statement on the 
opposing party.
    (2) The opposing party may file an opposition within 15 days of 
receipt of the statement in paragraph (g)(1) of this section. The 
opposition may refer to the record in the case to rebut the statement 
that a fact is not in dispute or may file an affidavit stating that the 
party cannot, for reasons stated, present facts to oppose the request. 
After considering the submissions, the administrative judge may order 
that discovery be permitted on the fact or facts involved, limit the 
hearing to the issues remaining in dispute, issue a decision without a 
hearing or make such other ruling as is appropriate.
    (3) If the administrative judge determines upon his or her own 
initiative that some or all facts are not in genuine dispute, he or she 
may, after giving notice to the parties and providing them an 
opportunity to respond in writing within 15 calendar days, issue an 
order limiting the scope of the hearing or issue a decision without 
holding a hearing.
    (h) Record of hearing. The hearing shall be recorded and the Board 
shall arrange and pay for verbatim transcripts. All documents submitted 
to, and accepted by, the administrative judge at the hearing shall be 
made part of the record of the hearing. If the Board submits a document 
that is accepted, it shall furnish a copy of the document to the 
complainant. If the complainant submits a document that is accepted, the 
administrative judge shall make the document available to the Board's 
representative for reproduction.
    (i) Decisions by administrative judges. Unless the administrative 
judge makes a written determination that good cause exists for extending 
the time for issuing a decision, an administrative judge shall issue a 
decision on the complaint, and shall order appropriate remedies and 
relief where discrimination is found, within 180 days of receipt by the 
administrative judge of the complaint file from the Board. The 
administrative judge shall send copies of the hearing record, including 
the transcript, and the decision to the parties. If the Board does not 
issue a final order within 40 days of receipt of the administrative 
judge's decision in accordance with Sec. 268.109(a), then the decision 
of the administrative judge shall become the final action of the Board.



Sec. 268.109  Final action by the Board.

    (a) Final action by the Board following a decision by an 
administrative judge. When an EEOC administrative judge has issued a 
decision under Sec. Sec. 268.108(b), (g), or (i), the Board shall take 
final action on the complaint by issuing a final order within 40 days of 
receipt of the hearing file and the administrative judge's decision. The 
final order shall notify the complainant whether or not the Board will 
fully implement the decision of the administrative judge and shall 
contain notice of the complainant's right to appeal to the Equal 
Employment Opportunity Commission, the right to file a civil action in 
federal district court, the name of the proper defendant in any such 
lawsuit and the applicable time limits for appeals and lawsuits. If the 
final order does not fully implement the decision of the administrative 
judge, then the Board shall simultaneously file an appeal in accordance 
with Sec. 268.403 and append a copy of its appeal to the final order. A 
copy of EEOC Form 573 shall be attached to the final order.
    (b) Final action by the Board in all other circumstances. When the 
Board dismisses an entire complaint under Sec. 268.106, receives a 
request for an immediate final decision or does not receive a reply to 
the notice issued under Sec. 268.107(f), the Board shall take final 
action by issuing a final decision. The final decision shall consist of 
findings by the Board on the merits of each issue in the complaint, or, 
as appropriate, the rationale for dismissing any claims in the complaint 
and, when discrimination is found, appropriate remedies and relief in 
accordance with subpart F of this part. The Board shall issue the final 
decision within 60 days of receiving notification that a complainant has 
requested an immediate decision from the Board, or within 60 days of the 
end of the 30-day period for the complainant to request a hearing or an 
immediate final decision where the complainant has not requested either 
a hearing or a decision. The final

[[Page 355]]

action shall contain notice of the right to appeal the final action to 
the Equal Employment Opportunity Commission, the right to file a civil 
action in federal district court, the name of the proper defendant in 
any such lawsuit and the applicable time limits for appeals and 
lawsuits. A copy of EEOC Form 573 shall be attached to the final action. 
The Board may issue a final decision within 30 days after receiving a 
decision of the Commission pursuant to Sec. 268.405(c) of this part.



        Subpart C_Provisions Applicable to Particular Complaints



Sec. 268.201  Age Discrimination in Employment Act.

    (a) As an alternative to filing a complaint under this part, an 
aggrieved individual may file a civil action in a United States district 
court under the ADEA against the Chairman of the Board of Governors 
after giving the Commission not less than 30 days' notice of the intent 
to file such an action. Such notice must be filed in writing with EEOC, 
at PO Box 19848, Washington, DC 20036, or by personal delivery or 
facsimile within 180 days of the occurrence of the alleged unlawful 
practice.
    (b) The Commission may exempt a position from the provisions of the 
ADEA if the Commission establishes a maximum age requirement for the 
position on the basis of a determination that age is a bona fide 
occupational qualification necessary to the performance of the duties of 
the position.
    (c) When an individual has filed an administrative complaint 
alleging age discrimination that is not a mixed case, administrative 
remedies will be considered to be exhausted for purposes of filing a 
civil action:
    (1) 180 days after the filing of an individual complaint if the 
Board has not taken final action and the individual has not filed an 
appeal or 180 days after the filing of a class complaint if the Board 
has not issued a final decision;
    (2) After final action on an individual or class complaint if the 
individual has not filed an appeal; or
    (3) After the issuance of a final decision by the Commission on an 
appeal or 180 days after the filing of an appeal, if the Commission has 
not issued a final decision.



Sec. 268.202  Equal Pay Act.

    Complaints alleging violations of the Equal Pay Act shall be 
processed under this part.



Sec. 268.203  Rehabilitation Act.

    (a) Model employer. The Board shall be a model employer of 
individuals with disabilities. The Board shall give full consideration 
to the hiring, placement, and advancement of qualified individuals with 
disabilities.
    (b) ADA standards. The standards used to determine whether section 
501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791), has 
been violated in a complaint alleging nonaffirmative action employment 
discrimination under this part shall be the standards applied under 
Titles I and V (sections 501 through 504 and 510) of the Americans with 
Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 12201), as 
such sections relate to employment. These standards are set forth in the 
Commission's ADA regulation at 29 CFR part 1630.



Sec. 268.204  Class complaints.

    (a) Definitions--(1) Class is a group of Board employees, former 
employees or applicants for employment who, it is alleged, have been or 
are being adversely affected by a Board personnel management policy or 
practice that discriminates against the group on the basis of their 
race, color, religion, sex, national origin, age or disability.
    (2) Class complaint is a written complaint of discrimination filed 
on behalf of a class by the agent of the class alleging that:
    (i) The class is so numerous that a consolidated complaint of the 
members of the class is impractical;
    (ii) There are questions of fact common to the class;
    (iii) The claims of the agent of the class are typical of the claims 
of the class;
    (iv) The agent of the class, or, if represented, the representative, 
will fairly and adequately protect the interests of the class.

[[Page 356]]

    (3) An agent of the class is a class member who acts for the class 
during the processing of the class complaint.
    (b) Pre-complaint processing. An employee or applicant who wishes to 
file a class complaint must seek counseling and be counseled in 
accordance with Sec. 268.104. A complainant may move for class 
certification at any reasonable point in the process when it becomes 
apparent that there are class implications to the claim raised in an 
individual complaint. If a complainant moves for class certification 
after completing the counseling process contained in Sec. 268.104, no 
additional counseling is required. The administrative judge shall deny 
class certification when the complainant has unduly delayed in moving 
for certification.
    (c) Filing and presentation of a class complaint. (1) A class 
complaint must be signed by the agent or representative and must 
identify the policy or practice adversely affecting the class as well as 
the specific action or matter affecting the class agent.
    (2) The complaint must be filed with the Board not later than 15 
days after the agent's receipt of the notice of right to file a class 
complaint.
    (3) The complaint shall be processed promptly; the parties shall 
cooperate and shall proceed at all times without undue delay.
    (d) Acceptance or dismissal. (1) Within 30 days of the Board's 
receipt of a complaint, the Board shall: Designate an agency 
representative who shall not be one of the individuals referenced in 
Sec. 268.102(b)(4), and forward the complaint, along with a copy of the 
Counselor's report and any other information pertaining to timeliness or 
other relevant circumstances related to the complaint, to the 
Commission. The Commission shall assign the complaint to an 
administrative judge or complaints examiner with a proper security 
clearance when necessary. The administrative judge may require the 
complainant or the Board to submit additional information relevant to 
the complaint.
    (2) The administrative judge may dismiss the complaint, or any 
portion, for any of the reasons listed in Sec. 268.106 or because it 
does not meet the prerequisites of a class complaint under Sec. 
268.204(a)(2).
    (3) If an allegation is not included in the Counselor's report, the 
administrative judge shall afford the agent 15 days to state whether the 
matter was discussed with the Counselor and, if not, explain why it was 
not discussed. If the explanation is not satisfactory, the 
administrative judge shall dismiss the allegation. If the explanation is 
satisfactory, the administrative judge shall refer the allegation to the 
Board for further counseling of the agent. After counseling, the 
allegation shall be consolidated with the class complaint.
    (4) If an allegation lacks specificity and detail, the 
administrative judge shall afford the agent 15 days to provide specific 
and detailed information. The administrative judge shall dismiss the 
complaint if the agent fails to provide such information within the 
specified time period. If the information provided contains new 
allegations outside the scope of the complaint, the administrative judge 
shall advise the agent how to proceed on an individual or class basis 
concerning these allegations.
    (5) The administrative judge shall extend the time limits for filing 
a complaint and for consulting with a Counselor in accordance with the 
time limit extension provisions contained in Sec. Sec. 268.104(a)(2) 
and 268.604.
    (6) When appropriate, the administrative judge may decide that a 
class be divided into subclasses and that each subclass be treated as a 
class, and the provisions of this section then shall be construed and 
applied accordingly.
    (7) The administrative judge shall transmit his or her decision to 
accept or dismiss a complaint to the Board and the agent. The Board 
shall take final action by issuing a final order within 40 days of 
receipt of the hearing record and administrative judge's decision. The 
final order shall notify the agent whether or not the Board will 
implement the decision of the administrative judge. If the final order 
does not implement the decision of the administrative judge, the Board 
shall simultaneously appeal the administrative judge's decision in 
accordance with Sec. 268.403 and append a copy of the

[[Page 357]]

appeal to the final order. A dismissal of a class complaint shall inform 
the agent either that the complaint is being filed on that date as an 
individual complaint of discrimination and will be processed under 
subpart B or that the complaint is also dismissed as an individual 
complaint in accordance with Sec. 268.106. In addition, it shall inform 
the agent of the right to appeal the dismissal of the class complaint to 
the Equal Employment Opportunity Commission or to file a civil action 
and shall include EEOC Form 573, Notice of Appeal/Petition.
    (e) Notification. (1) Within 15 days of receiving notice that the 
administrative judge has accepted a class complaint or a reasonable time 
frame specified by the administrative judge, the Board shall use 
reasonable means, such as delivery, mailing to last known address or 
distribution, to notify all class members of the acceptance of the class 
complaint.
    (2) Such notice shall contain:
    (i) An identification of the Board as the named agency, its 
location, and the date of acceptance of the complaint;
    (ii) A description of the issues accepted as part of the class 
complaint;
    (iii) An explanation of the binding nature of the final decision or 
resolution of the class complaint on class members; and
    (iv) The name, address and telephone number of the class 
representative.
    (f) Obtaining evidence concerning the complaint. (1) The 
administrative judge shall notify the agent and the Board's 
representative of the time period that will be allowed both parties to 
prepare their cases. This time period will include at least 60 days and 
may be extended by the administrative judge upon the request of either 
party. Both parties are entitled to reasonable development of evidence 
on matters relevant to the issues raised in the complaint. Evidence may 
be developed through interrogatories, depositions, and requests for 
admissions, stipulations or production of documents. It shall be grounds 
for objection to producing evidence that the information sought by 
either party is irrelevant, overburdensome, repetitious, or privileged.
    (2) If mutual cooperation fails, either party may request the 
administrative judge to rule on a request to develop evidence. If a 
party fails without good cause shown to respond fully and in timely 
fashion to a request made or approved by the administrative judge for 
documents, records, comparative data, statistics or affidavits, and the 
information is solely in the control of one party, such failure may, in 
appropriate circumstances, cause the administrative judge:
    (i) To draw an adverse inference that the requested information 
would have reflected unfavorably on the party refusing to provide the 
requested information;
    (ii) To consider the matters to which the requested information 
pertains to be established in favor of the opposing party;
    (iii) To exclude other evidence offered by the party failing to 
produce the requested information;
    (iv) To recommend that a decision be entered in favor of the 
opposing party; or
    (v) To take such other actions as the administrative judge deems 
appropriate.
    (3) During the period for development of evidence, the 
administrative judge may, in his or her discretion, direct that an 
investigation of facts relevant to the class complaint or any portion be 
conducted by an agency certified by the Commission.
    (4) Both parties shall furnish to the administrative judge copies of 
all materials that they wish to be examined and such other material as 
may be requested.
    (g) Opportunity for resolution of the complaint. (1) The 
administrative judge shall furnish the agent and the Board's 
representative a copy of all materials obtained concerning the complaint 
and provide opportunity for the agent to discuss the materials with the 
Board's representative and attempt resolution of the complaint.
    (2) The complaint may be resolved by agreement of the Board and the 
agent at any time pursuant to the notice and approval procedure 
contained in paragraph (g)(4) of this section.

[[Page 358]]

    (3) If the complaint is resolved, the terms of the resolution shall 
be reduced to writing and signed by the agent and the Board.
    (4) Notice of the resolution shall be given to all class members in 
the same manner as notification of the acceptance of the class complaint 
and to the administrative judge. It shall state the relief, if any, to 
be granted by the Board and the name and address of the EEOC 
administrative judge assigned to the case. It shall state that within 30 
days of the date of the notice of resolution, any member of the class 
may petition the administrative judge to vacate the resolution because 
it benefits only the class agent, or is otherwise not fair, adequate and 
reasonable to the class as a whole. The administrative judge shall 
review the notice of resolution and consider any petitions to vacate 
filed. If the administrative judge finds that the proposed resolution is 
not fair, adequate and reasonable to the class as a whole, the 
administrative judge shall issue a decision vacating the agreement and 
may replace the original class agent with a petitioner or some other 
class member who is eligible to be the class agent during further 
processing of the class complaint. The decision shall inform the former 
class agent or the petitioner of the right to appeal the decision to the 
Equal Employment Opportunity Commission and include EEOC Form 573, 
Notice of Appeal/Petition. If the administrative judge finds that the 
resolution is fair, adequate and reasonable to the class as a whole, the 
resolution shall bind all members of the class.
    (h) Hearing. On expiration of the period allowed for preparation of 
the case, the administrative judge shall set a date for hearing. The 
hearing shall be conducted in accordance with 12 CFR 268.108(a) through 
(f).
    (i) Report of findings and recommendations. (1) The administrative 
judge shall transmit to the Board a report of findings and 
recommendations on the complaint, including a recommended decision, 
systemic relief for the class and any individual relief, where 
appropriate, with regard to the personnel action or matter that gave 
rise to the complaint.
    (2) If the administrative judge finds no class relief appropriate, 
he or she shall determine if a finding of individual discrimination is 
warranted and, if so, shall recommend appropriate relief.
    (3) The administrative judge shall notify the agent of the date on 
which the report of findings and recommendations was forwarded to the 
Board.
    (j) Board decision. (1) Within 60 days of receipt of the report of 
findings and recommendations issued under Sec. 268.204(i), the Board 
shall issue a final decision, which shall accept, reject, or modify the 
findings and recommendations of the administrative judge.
    (2) The final decision of the Board shall be in writing and shall be 
transmitted to the agent by certified mail, return receipt requested, 
along with a copy of the report of findings and recommendations of the 
administrative judge.
    (3) When the Board's final decision is to reject or modify the 
findings and recommendations of the administrative judge, the decision 
shall contain specific reasons for the Board's action.
    (4) If the Board has not issued a final decision within 60 days of 
its receipt of the administrative judge's report of findings and 
recommendations, those findings and recommendations shall become the 
final decision. The Board shall transmit the final decision to the agent 
within five days of the expiration of the 60-day period.
    (5) The final decision of the Board shall require any relief 
authorized by law and determined to be necessary or desirable to resolve 
the issue of discrimination.
    (6) The final decision on a class complaint shall, subject to 
subpart E of this part, be binding on all members of the class and the 
Board.
    (7) The final decision shall inform the agent of the right to appeal 
or to file a civil action in accordance with subpart E of this part and 
of the applicable time limits.
    (k) Notification of decision. The Board shall notify class members 
of the final decision and relief awarded, if any, through the same media 
employed to give notice of the existence of the class

[[Page 359]]

complaint. The notice, where appropriate, shall include information 
concerning the rights of class members to seek individual relief, and of 
the procedures to be followed. Notice shall be given by the Board within 
10 days of the transmittal of its final decision to the agent.
    (l) Relief for individual class members. (1) When discrimination is 
found, the Board must eliminate or modify the employment policy or 
practice out of which the complaint arose and provide individual relief, 
including an award of attorney's fees and costs, to the agent in 
accordance with Sec. 268.501.
    (2) When class-wide discrimination is not found, but it is found 
that the class agent is a victim of discrimination, Sec. 268.501 shall 
apply. The Board shall also, within 60 days of the issuance of the final 
decision finding no class-wide discrimination, issue the acknowledgment 
of receipt of an individual complaint as required by Sec. 268.105(d) 
and process in accordance with the provisions of subpart B of this part, 
each individual complaint that was subsumed into the class complaint.
    (3) When discrimination is found in the final decision and a class 
member believes that he or she is entitled to individual relief, the 
class member may file a written claim with the Board or the Board's EEO 
Programs Director within 30 days of receipt of notification by the Board 
of its final decision. Administrative judges shall retain jurisdiction 
over the complaint in order to resolve any disputed claims by class 
members. The claim must include a specific, detailed showing that the 
claimant is a class member who was affected by the discriminatory policy 
or practice, and that this discriminatory action took place within the 
period of time for which the Board found class-wide discrimination in 
its final decision. Where a finding of discrimination against a class 
has been made, there shall be a presumption of discrimination as to each 
member of the class. The Board must show by clear and convincing 
evidence that any class member is not entitled to relief. The 
administrative judge may hold a hearing or otherwise supplement the 
record on a claim filed by a class member. The Board or the Commission 
may find class-wide discrimination and order remedial action for any 
policy or practice in existence within 45 days of the agent's initial 
contact with the Counselor. Relief otherwise consistent with this Part 
may be ordered for the time the policy or practice was in effect. The 
Board shall issue a final decision on each such claim within 90 days of 
filing. Such decision must include a notice of the right to file an 
appeal or a civil action in accordance with subpart E of this part and 
the applicable time limits.



Sec. 268.205  Employment of aliens; Access to sensitive information.

    (a) Definitions. The definitions contained in this paragraph (a) 
apply only to this section:
    (1) Classified Information means information that is classified for 
national security purposes under Executive Order No. 12958, entitled 
``Classified National Security Information,'' including any amendments 
or superseding orders that the President of the United States may issue 
from time to time.
    (2) Confidential Supervisory Information means confidential 
supervisory information of the Board, as defined in 12 CFR 261.2(c). 
Three internal security designations, which are subject to change by the 
Board, apply to Confidential Supervisory Information. Those designations 
are:
    (i) Restricted-Controlled FR generally applies to information that, 
if disclosed to or modified by unauthorized individuals, might result in 
the risk of serious monetary loss, serious productivity loss or serious 
embarrassment to the Federal Reserve System. Examples of Confidential 
Supervisory Information designated as Restricted-Controlled FR include, 
but are not limited to, certain significant lists of financial 
institution supervisory ratings and nonpublic advance information 
regarding bank mergers or failures.
    (ii) Restricted FR covers information that is less sensitive than 
Restricted-Controlled FR information and, in general, is the largest 
category of Confidential Supervisory Information. This information, if 
disclosed to or modified by unauthorized individuals, might result in 
the risk of significant monetary

[[Page 360]]

loss, significant productivity loss, or significant embarrassment to the 
Federal Reserve System. Examples of Confidential Supervisory Information 
designated as Restricted FR include, but are not limited to, single 
supervisory ratings (e.g., CAMELS, BOPEC, etc.), Federal Reserve 
examination and inspection reports and workpapers, Interagency Country 
Exposure Review Committee (ICERC) country exposure determinations, and 
shared national credit data or listings.
    (iii) Internal FR covers information that is less sensitive than 
Restricted FR or Restricted-Controlled FR and generally applies to 
information that, if disclosed to or modified by unauthorized 
individuals, might result in the risk of some monetary loss, some 
productivity loss, or some embarrassment to the Federal Reserve System. 
Examples of Confidential Supervisory Information designated as Internal 
FR include, but are not limited to, foreign banking organization country 
studies and Federal Reserve risk assessments.
    (3) Country List refers to the list contained in the annual federal 
appropriations laws of specific countries, including a general category 
of ``countries allied with the United States in a current defense 
effort,'' from which particular categories of persons who are exempt 
from a ban on the use of appropriated funds are eligible to be hired as 
Federal employees in the excepted service or in the senior executive 
service. The appropriations ban is codified at 5 U.S.C. 3101 note. The 
list of eligible countries and persons is subject to legislative and 
other change.
    (4) Eligible Position refers to a position or job family requiring 
access to Sensitive Information for which the Board determines that 
hiring a Non-Citizen is appropriate.
    (5) Employee means an individual who works full-time or part-time 
and is appointed into Board service for a period of more than 90 days. 
The term ``Employee'' does not include members of the Board.
    (6) FOMC Information means confidential information of the Federal 
Open Market Committee (FOMC) regardless of the form or format in which 
it is created, conveyed, or maintained. FOMC Information includes 
information derived from confidential FOMC materials. Three internal 
security designations, which are subject to change by the FOMC, apply to 
FOMC Information as follows:
    (i) Class I FOMC generally applies to materials containing 
policymaker input, such as that related to monetary policy decisions at 
meetings, views expressed by policy makers on future policy, and 
identification of meeting participants who express particular views. 
Examples of Class I FOMC Information include, but are not limited to, 
the ``Bluebook,'' drafts of meeting minutes, unreleased meeting 
transcripts, documents reflecting the preparation of semi-annual 
forecasts and related testimony, and certain sensitive internal 
memorandums and reports.
    (ii) Class II FOMC covers information that is less sensitive than 
Class I FOMC. This designation generally applies to staff forecasts 
prepared for the FOMC and to information about open market operations. 
Examples of Class II FOMC Information include, but are not limited to, 
Part I of the ``Greenbook,'' reports of the Manager on domestic and 
foreign open market operations, and other materials on economic and 
financial developments.
    (iii) Class III FOMC covers information that is less sensitive than 
either Class II or Class I. This designation generally applies to 
background information supporting policy discussions and includes, but 
is not limited to, Part II of the Greenbook.
    (7) National refers to any individual who meets the requirements 
described in 8 U.S.C. 1408.
    (8) Non-Citizen refers to any individual who is not a Protected 
Individual.
    (9) Protected Individual means--
    (i) A citizen or National of the United States,
    (ii) An alien who:
    (A) Meets the conditions set forth in 8 U.S.C. 1324b(a)(3)(B), as 
amended, and
    (B) Has filed with the Board or the appropriate Federal Reserve Bank 
a declaration of intention to become a citizen of the United States, or
    (iii) An alien who:
    (A) Is lawfully admitted for permanent residence, is admitted for 
temporary residence under 8 U.S.C. 1160(a)

[[Page 361]]

or section 1255a(a)(1), is admitted as a refugee under 8 U.S.C. 1157, or 
is granted asylum under 8 U.S.C. 1158;
    (B) Was an Employee of the Board or a Federal Reserve Bank on 
January 1, 2006;
    (C) Before requesting access to Sensitive Information filed an 
application for U.S. citizenship;
    (D) Has had his or her application for citizenship pending for two 
years or less, unless in the case of an application pending for a longer 
period, the alien can establish that the alien is actively pursuing 
naturalization. Time consumed by the Department of Homeland Security, 
Citizenship and Immigration Services (or its predecessor or successor 
agency) in processing the application shall not be counted toward the 2-
year period; and
    (E) Has completed a background investigation acceptable to the 
Board.
    (10) Sensitive Information means FOMC Information, Classified 
Information, and Confidential Supervisory Information.
    (b) Hiring and access--(1) Prohibition against hiring unauthorized 
aliens. An individual is eligible for employment with the Board only if 
he or she satisfies the requirements of Section 101 of the Immigration 
Reform and Control Act of 1986, 8 U.S.C. 1324a.
    (2) Preference. Consistent with applicable law, where two applicants 
for employment at the Board are equally qualified for a position, the 
Board shall prefer the citizen or National of the United States over the 
equally qualified person who is not a citizen or National of the United 
States.
    (3) Protected Individuals' access to Sensitive Information. The 
Board may hire a person as an Employee into a position that requires 
access to Sensitive Information if the person is a Protected Individual.
    (4) Non-Citizens' access to Sensitive Information. The Board shall 
not hire a Non-Citizen into a position that requires access to Sensitive 
Information unless the Non-Citizen:
    (i) Is in an Eligible Position; and
    (ii) Meets the requirements of paragraph (c) of this section 
allowing access to Sensitive Information.
    (c) Access to Sensitive Information--(1) Generally. The Board will 
grant access to Sensitive Information only in accordance with the 
Board's rules and policies regarding access to Sensitive Information 
and, if applicable, the rules and policies of the FOMC. Access to any 
level of Sensitive Information includes access to all lower levels of 
that type of Sensitive Information. An Employee who is not a Protected 
Individual may not have access to FOMC Information or Confidential 
Supervisory Information unless otherwise permitted by this paragraph 
(c).
    (2) FOMC Information--(i) Access by a Non-Citizen from a country on 
the Country List. An Employee in an Eligible Position who is a Non-
Citizen from a country that, on the date the Employee begins employment 
with the Federal Reserve System or on the date access is granted, is on 
the Country List shall be granted access to Class I FOMC Information 
only if the Employee:
    (A) Has been recommended for such access by the Employee's Division 
Director;
    (B) Has been resident in the United States for at least six years, 
at least two of which include satisfactory employment with the Board 
and/or one or more of the Federal Reserve Banks; and
    (C) Has completed a background investigation acceptable to the 
Board.
    (ii) Access by a Non-Citizen from a country not on the Country List. 
An Employee in an Eligible Position who is a Non-Citizen from a country 
that, on the date the Employee begins employment with the Federal 
Reserve System and on the date access is granted, is not on the Country 
List:
    (A) Shall not be granted access to Class I FOMC Information, and
    (B) Shall be granted access to Class II FOMC Information only upon:
    (1) The recommendation of the Employee's Division Director;
    (2) Six years of residence in the United States, at least two of 
which include satisfactory employment by the Board and/or one or more of 
the Federal Reserve Banks; and
    (3) Completion of a background investigation acceptable to the 
Board.
    (iii) Changes to the Country List. If the Employee's country is 
deleted from the

[[Page 362]]

Country List after the date the Employee begins employment with the 
Federal Reserve System, the Employee's existing access to Class I or 
Class II FOMC information will not be affected by the change in the 
Country List. Similarly, the Employee would continue to be eligible for 
access to Class I information and may be granted such access if he or 
she meets the remaining conditions outlined in paragraph (c)(2)(i) for 
employees from a country on the Country List.
    (3) Confidential Supervisory Information--(i) Access by a Non-
Citizen from a country on the Country List. An Employee in an Eligible 
Position who is a Non-Citizen from a country that, on the date the 
Employee begins employment with the Federal Reserve System or on the 
date access is granted, is on the Country List shall be granted access 
to Confidential Supervisory Information designated as Restricted-
Controlled FR only if the Employee:
    (A) Has been recommended for such access by the Employee's Division 
Director;
    (B) Has been resident in the United States for at least six years, 
at least two of which include satisfactory employment with the Board 
and/or one or more of the Federal Reserve Banks; and
    (C) Has completed a background investigation acceptable to the 
Board.
    (ii) Access by a Non-Citizen from a country not on the Country List. 
An Employee in an Eligible Position who is a Non-Citizen from a country 
that, on the date the Employee begins employment with the Federal 
Reserve System and on the date access is granted, is not on the Country 
List:
    (A) Shall not be granted access to Confidential Supervisory 
Information designated as Restricted-Controlled FR; and
    (B) Shall be granted access to Confidential Supervisory Information 
designated as Restricted FR only upon:
    (1) The recommendation of the Employee's Division Director;
    (2) Six years of residence in the United States, at least two of 
which include satisfactory employment by the Board and/or one or more of 
the Federal Reserve Banks; and
    (3) Completion of a background investigation acceptable to the 
Board.
    (iii) Changes to the Country List. If the Employee's country is 
deleted from the Country List after the date the Employee begins 
employment with the Federal Reserve System, the Employee's existing 
access to Confidential Supervisory Information designated as Restricted 
FR or Restricted-Controlled FR will not be affected by the change in the 
Country List. Similarly, the Employee would continue to be eligible for 
access to Confidential Supervisory Information designated as Restricted-
Controlled FR information and may be granted such access if he or she 
meets the remaining conditions outlined in paragraph (c)(3)(i) for 
employees from a country on the Country List.
    (4) Access to Sensitive Information by Reserve Bank employees--(i) 
FOMC Information. By action of the FOMC, a Reserve Bank employee may 
access FOMC Information in accordance with these rules.
    (ii) Confidential Supervisory Information. A Reserve Bank employee 
will be granted access to Confidential Supervisory Information only to 
the extent the employee meets all of the requirements for access to 
Confidential Supervisory Information provided in this paragraph (c) and 
the employee has received approval for such access from the Board's 
Director for Banking Supervision and Regulation. Notwithstanding the 
foregoing, this rule does not affect access that has been granted to 
employees hired before the effective date of this rule.
    (5) Exceptions for access to Confidential Supervisory Information. A 
Board or Reserve Bank employer may request an exception for access to 
Confidential Supervisory Information. The requester must demonstrate 
that unusual circumstances exist and that the Board or Reserve Bank 
employee for whom access is being requested has a strong and 
particularized need for access to the information. All exceptions for 
access to Confidential Supervisory Information must be approved by the 
Chairman of the Board's Committee on Supervisory and Regulatory Affairs.
    (6) Classified Information. Access to Classified Information is 
limited to those persons who are permitted access

[[Page 363]]

to Classified Information pursuant to the applicable executive orders 
and any subsequent amendments or superseding orders that the President 
of the United States may issue from time to time.

[71 FR 44558, Aug. 7, 2006, as amended at 73 FR 17887, Apr. 2, 2008]



                       Subpart D_Related Processes



Sec. 268.301  Negotiated grievance procedure.

    When an employee of the Board, which is not an agency subject to 5 
U.S.C. 7121(d), is covered by a negotiated grievance procedure, 
allegations of discrimination shall be processed as complaints under 
this part, except that the time limits for processing the complaint 
contained in Sec. 268.105 and for appeal to the Commission contained in 
Sec. 268.402 may be held in abeyance during processing of a grievance 
covering the same matter as the complaint if the Board notifies the 
complainant in writing that the complaint will be held in abeyance 
pursuant to this section.



Sec. 268.302  Mixed case complaints.

    A mixed case complaint is a complaint of employment discrimination 
filed with the Board based on race, color, religion, sex, national 
origin, age or disability related to or stemming from an action that can 
be appealed to the Merit System Protection Board (MSPB). The complaint 
may contain only an allegation of employment discrimination or it may 
contain additional allegations that the MSPB has jurisdiction to 
address. A mixed case appeal is an appeal filed with the MSPB that 
alleges that an appealable Board action was effected, in whole or in 
part, because of discrimination on the basis of race, color, religion, 
sex, national origin, disability or age. Only a Board employee who is a 
preference eligible employee as defined by the Veterans Preference Act 
can file a mixed case complaint with the Board or a mixed case appeal 
with the MSPB. A mixed case complaint or mixed case appeal may only be 
filed for action(s) over which the MSPB has jurisdiction. The Board will 
apply sections 1614.302 to 1614.310 of 29 CFR to the processing of a 
mixed case complaint or mixed case appeal.



    Subpart E_Appeals to the Equal Employment Opportunity Commission



Sec. 268.401  Appeals to the Equal Employment Opportunity Commission.

    (a) A complainant may appeal the Board's final action or dismissal 
of a complaint.
    (b) The Board may appeal as provided in Sec. 268.109(a).
    (c) A class agent or the Board may appeal an administrative judge's 
decision accepting or dismissing all or part of a class complaint; a 
class agent may appeal a final decision on a class complaint; a class 
member may appeal a final decision on a claim for individual relief 
under a class complaint; and a class member, a class agent or the Board 
may appeal a final decision on a petition pursuant to Sec. 
268.204(g)(4).
    (d) A complainant, agent of the class or individual class claimant 
may appeal to the Commission the Board's alleged noncompliance with a 
settlement agreement or final decision in accordance with Sec. 268.504.



Sec. 268.402  Time for appeals to the Equal Employment Opportunity
Commission.

    (a) Appeals described in Sec. 268.401(a) and (c) must be filed 
within 30 days of receipt of the dismissal, final action or decision. 
Appeals described in Sec. 268.401(b) must be filed within 40 days of 
receipt of the hearing file and decision. Where a complainant has 
notified the Board's EEO Programs Director of alleged noncompliance with 
a settlement agreement in accordance with Sec. 268.504, the complainant 
may file an appeal 35 days after service of the allegations of 
noncompliance, but no later than 30 days after receipt of the Board's 
determination.
    (b) If the complainant is represented by an attorney of record, then 
the 30-day time period provided in paragraph (a) of this section within 
which to appeal shall be calculated from the receipt of the required 
document by the attorney. In all other instances, the time within which 
to appeal shall be calculated from the receipt of the required document 
by the complainant.

[[Page 364]]



Sec. 268.403  How to appeal.

    (a) The complainant, the Board, agent or individual class claimant 
(hereinafter appellant) must file an appeal with the Director, Office of 
Federal Operations, Equal Employment Opportunity Commission, at PO Box 
19848, Washington, DC 20036, or by personal delivery or facsimile. The 
appellant should use EEOC Form 573, Notice of Appeal/Petition, and 
should indicate what is being appealed.
    (b) The appellant shall furnish a copy of the appeal to the opposing 
party at the same time it is filed with the Commission. In or attached 
to the appeal to the Commission, the appellant must certify the date and 
method by which service was made on the opposing party.
    (c) If an appellant does not file an appeal within the time limits 
of this subpart, the appeal shall be dismissed by the Commission as 
untimely.
    (d) Any statement or brief on behalf of a complainant in support of 
the appeal must be submitted to the Office of Federal Operations within 
30 days of filing the notice of appeal. Any statement or brief on behalf 
of the Board in support of its appeal must be submitted to the Office of 
Federal Operations within 20 days filing the notice of appeal. The 
Office of Federal Operations will accept statements or briefs in support 
of an appeal by facsimile transmittal, provided they are no more than 10 
pages long.
    (e) The Board must submit the complaint file to the Office of 
Federal Operations within 30 days of initial notification that the 
complainant has filed an appeal or within 30 days of submission of an 
appeal by the Board.
    (f) Any statement or brief in opposition to an appeal must be 
submitted to the Commission and served on the opposing party within 30 
days of receipt of the statement or brief supporting the appeal, or, if 
no statement or brief supporting the appeal is filed, within 60 days of 
receipt of the appeal. The Office of Federal Operations will accept 
statements or briefs in opposition to an appeal by facsimile provided 
they are no more than 10 pages long.



Sec. 268.404  Appellate Procedure.

    (a) On behalf of the Commission, the Office of Federal Operations 
shall review the complaint file and all written statements and briefs 
from either party. The Commission may supplement the record by an 
exchange of letters or memoranda, investigation, remand to the Board or 
other procedures.
    (b) If the Office of Federal Operations requests information from 
one or both of the parties to supplement the record, each party 
providing information shall send a copy of the information to the other 
party.
    (c) When either party to an appeal fails without good cause shown to 
comply with the requirements of this section or to respond fully and in 
timely fashion to requests for information, the Office of Federal 
Operations shall, in appropriate circumstances:
    (1) Draw an adverse inference that the requested information would 
have reflected unfavorably on the party refusing to provide the 
requested information;
    (2) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (3) Issue a decision fully or partially in favor of the opposing 
party; or
    (4) Take such other actions as appropriate.



Sec. 268.405  Decisions on appeals.

    (a) The Office of Federal Operations, on behalf of the Commission, 
shall issue a written decision setting forth its reasons for the 
decision. The Commission shall dismiss appeals in accordance with 
Sec. Sec. 268.106, 268.403(c) and 268.408. The decision on an appeal 
from the Board's final action shall be based on a de novo review, except 
that the review of the factual findings in a decision by an 
administrative judge issued pursuant to Sec. 268.108(i) shall be based 
on a substantial evidence standard of review. If the decision contains a 
finding of discrimination, appropriate remedy(ies) shall be included 
and, where appropriate, the entitlement to interest, attorney's fees or 
costs shall be indicated. The decision shall reflect the date of its 
issuance, inform the complainant of his or her civil action

[[Page 365]]

rights, and be transmitted to the complainant and the Board by first 
class mail.
    (b) A decision issued under paragraph (a) of this section is final, 
subject to paragraph (c) of this section, within the meaning of Sec. 
268.406 unless the Commission reconsiders the case. A party may request 
reconsideration within 30 days of receipt of a decision of the 
Commission, which the Commission in its discretion may grant, if the 
party demonstrates that:
    (1) The appellate decision involved a clearly erroneous 
interpretation of material fact or law; or
    (2) The decision will have a substantial impact on the policies, 
practices or operations of the Board.
    (c) The Board, within 30 days of receiving the decision of the 
Commission, shall issue a final decision based upon that decision.



Sec. 268.406  Civil action: Title VII, Age Discrimination in Employment
Act and Rehabilitation Act.

    A complainant who has filed an individual complaint, an agent who 
has filed a class complaint or a claimant who has filed a claim for 
individual relief pursuant to a class complaint is authorized under 
title VII, the ADEA and the Rehabilitation Act to file a civil action in 
an appropriate United States District Court:
    (a) Within 90 days of receipt of the final action on an individual 
or class complaint if no appeal has been filed;
    (b) After 180 days from the date of filing an individual or class 
complaint if an appeal has not been filed and final action has not been 
taken;
    (c) Within 90 days of receipt of the Commission's final decision on 
an appeal; or
    (d) After 180 days from the date of filing an appeal with the 
Commission if there has been no final decision by the Commission.



Sec. 268.407  Civil action: Equal Pay Act.

    A complainant is authorized under section 16(b) of the Fair Labor 
Standards Act (29 U.S.C. 216(b)) to file a civil action in a court of 
competent jurisdiction within two years or, if the violation is willful, 
three years of the date of the alleged violation of the Equal Pay Act 
regardless of whether he or she pursued any administrative complaint 
processing. Recovery of back wages is limited to two years prior to the 
date of filing suit, or to three years if the violation is deemed 
willful; liquidated damages in an equal amount may also be awarded. The 
filing of a complaint or appeal under this part shall not toll the time 
for filing a civil action.



Sec. 268.408  Effect of filing a civil action.

    Filing a civil action under Sec. Sec. 268.406 or 268.407 shall 
terminate Commission processing of the appeal. If private suit is filed 
subsequent to the filing of an appeal, the parties are requested to 
notify the Commission in writing.



                   Subpart F_Remedies and Enforcement



Sec. 268.501  Remedies and relief.

    (a) When the Board, or the Commission, in an individual case of 
discrimination, finds that an applicant or an employee has been 
discriminated against, the Board shall provide full relief which shall 
include the following elements in appropriate circumstances:
    (1) Notification to all employees of the Board in the affected 
facility of their right to be free of unlawful discrimination and 
assurance that the particular types of discrimination found will not 
recur;
    (2) Commitment that corrective, curative or preventive action will 
be taken, or measures adopted, to ensure that violations of the law 
similar to those found unlawful will not recur;
    (3) An unconditional offer to each identified victim of 
discrimination of placement in the position the person would have 
occupied but for the discrimination suffered by that person, or a 
substantially equivalent position;
    (4) Payment to each identified victim of discrimination on a make 
whole basis for any loss of earnings the person may have suffered as a 
result of the discrimination; and
    (5) Commitment that the Board shall cease from engaging in the 
specific unlawful employment practice found in the case.
    (b) Relief for an applicant. (1)(i) When the Board, or the 
Commission, finds

[[Page 366]]

that an applicant for employment has been discriminated against, the 
Board shall offer the applicant the position that the applicant would 
have occupied absent discrimination or, if justified by the 
circumstances, a substantially equivalent position unless clear and 
convincing evidence indicates that the applicant would not have been 
selected even absent the discrimination. The offer shall be made in 
writing. The individual shall have 15 days from receipt of the offer 
within which to accept or decline the offer. Failure to accept the offer 
within the 15-day period will be considered a declination of the offer, 
unless the individual can show that circumstances beyond his or her 
control prevented a response within the time limit.
    (ii) If the offer is accepted, appointment shall be retroactive to 
the date the applicant would have been hired. Back pay, computed in the 
manner prescribed in 5 CFR 550.805, shall be awarded from the date the 
individual would have entered on duty until the date the individual 
actually enters on duty unless clear and convincing evidence indicates 
that the applicant would not have been selected even absent 
discrimination. Interest on back pay shall be included in the back pay 
computation where sovereign immunity has been waived. The individual 
shall be deemed to have performed service for the Board during this 
period for all purposes except for meeting service requirements for 
completion of a required probationary or trial period.
    (iii) If the offer of employment is declined, the Board shall award 
the individual a sum equal to the back pay he or she would have 
received, computed in the manner prescribed in 5 CFR 550.805, from the 
date he or she would have been appointed until the date the offer was 
declined, subject to the limitation of paragraph (b)(3) of this section. 
Interest on back pay shall be included in the back pay computation. The 
Board shall inform the applicant, in its offer of employment, of the 
right to this award in the event the offer is declined.
    (2) When the Board, or the Commission, finds that discrimination 
existed at the time the applicant was considered for employment but also 
finds by clear and convincing evidence that the applicant would not have 
been hired even absent discrimination, the Board shall nevertheless take 
all steps necessary to eliminate the discriminatory practice and ensure 
it does not recur.
    (3) Back pay under this paragraph (b) for complaints under title VII 
or the Rehabilitation Act may not extend from a date earlier than two 
years prior to the date on which the complaint was initially filed by 
the applicant.
    (c) Relief for an employee. When the Board, or the Commission, finds 
that an employee of the Board was discriminated against, the Board shall 
provide relief, which shall include, but need not be limited to, one or 
more of the following actions:
    (1) Nondiscriminatory placement, with back pay computed in the 
manner prescribed in 5 CFR 550.805, unless clear and convincing evidence 
contained in the record demonstrates that the personnel action would 
have been taken even absent the discrimination. Interest on back pay 
shall be included in the back pay computation where sovereign immunity 
has been waived. The back pay liability under title VII or the 
Rehabilitation Act is limited to two years prior to the date the 
discrimination complaint was filed.
    (2) If clear and convincing evidence indicates that, although 
discrimination existed at the time the personnel action was taken, the 
personnel action would have been taken even absent discrimination, the 
Board shall nevertheless eliminate any discriminatory practice and 
ensure it does not recur.
    (3) Cancellation of an unwarranted personnel action and restoration 
of the employee.
    (4) Expunction from the Board's records of any adverse materials 
relating to the discriminatory employment practice.
    (5) Full opportunity to participate in the employee benefit denied 
(e.g., training, preferential work assignments, overtime scheduling).
    (d) The Board has the burden of proving by a preponderance of the 
evidence that the complainant has failed to mitigate his or her damages.
    (e) Attorney's fees or costs--(1) Awards of attorney's fees or 
costs. The provisions

[[Page 367]]

of this paragraph relating to the award of attorney's fees or costs 
shall apply to allegations of discrimination prohibited by title VII and 
the Rehabilitation Act. In a decision or final action, the Board, 
administrative judge, or Commission may award the applicant or employee 
or reasonable attorney's fees (including expert witness fees) and other 
costs incurred in the processing of the complaint.
    (i) A finding of discrimination raises a presumption of entitlement 
to an award of attorney's fees.
    (ii) Any award of attorney's fees or costs shall be paid by the 
Board.
    (iii) Attorney's fees are allowable only for the services of members 
of the Bar and law clerks, paralegals or law students under the 
supervision of members of the Bar, except that no award is allowable for 
the services of any employee of the Federal Government.
    (iv) Attorney's fees shall be paid for services performed by an 
attorney after the filing of a written complaint, provided that the 
attorney provides reasonable notice of representation to the Board, 
administrative judge or Commission, except that fees are allowable for a 
reasonable period of time prior to the notification of representation 
for any services performed in reaching a determination to represent the 
complainant. The Board is not required to pay attorney's fees for 
services performed during the pre-complaint process, except that fees 
are allowable when the Commission affirms on appeal an administrative 
judge's decision finding discrimination after the Board takes final 
action by not implementing an administrative judge's decision. Written 
submissions to the Board that are signed by the representative shall be 
deemed to constitute notice of representation.
    (2) Amount of awards. (i) When the Board, administrative judge or 
the Commission determines an entitlement to attorney's fees or costs, 
the complainant's attorney shall submit a verified statement of 
attorney's fees (including expert witness fees) and other costs, as 
appropriate, to the Board or administrative judge within 30 days of 
receipt of the decision and shall submit a copy of the statement to the 
Board. A statement of attorney's fees and costs shall be accompanied by 
an affidavit executed by the attorney of record itemizing the attorney's 
charges for legal services. The Board may respond to a statement of 
attorney's fees and costs within 30 days of its receipt. The verified 
statement, accompanying affidavit and any Board response shall be made a 
part of the complaint file.
    (ii)(A) The Board or administrative judge shall issue a decision 
determining the amount of attorney's fees or costs due within 60 days of 
receipt of the statement and affidavit. The decision shall include a 
notice of right to appeal to the EEOC along with EEOC Form 573, Notice 
of Appeal/Petition and shall include the specific reasons for 
determining the amount of the award.
    (B) The amount of attorney's fees shall be calculated using the 
following standards: The starting point shall be the number of hours 
reasonably expended multiplied by a reasonable hourly rate. There is a 
strong presumption that this amount represents the reasonable fee. In 
limited circumstances, this amount may be reduced or increased in 
consideration of the degree of success, quality of representation, and 
long delay caused by the Board.
    (C) The costs that may be awarded are those authorized by 28 U.S.C. 
1920 to include: Fees of the reporter for all or any of the stenographic 
transcript necessarily obtained for use in the case; fees and 
disbursements for printing and witnesses; and fees for exemplification 
and copies necessarily obtained for use in the case.
    (iii) Witness fees shall be awarded in accordance with the 
provisions of 28 U.S.C. 1821, except that no award shall be made for a 
Federal employee who is in a duty status when made available as a 
witness.



Sec. 268.502  Compliance with final Commission decisions.

    (a) Relief ordered in a final Commission decision, if accepted 
pursuant to Sec. 268.405(c) as a final decision, or not acted upon the 
Board within the time periods of Sec. 268.405(c), is mandatory and

[[Page 368]]

binding on the Board except as provided in this section. Failure to 
implement ordered relief shall be subject to judicial enforcement as 
specified in Sec. 268.503(f).
    (b) Notwithstanding paragraph (a) of this section, when the Board 
requests reconsideration and the case involves removal, separation, or a 
suspension continuing beyond the date of the request for 
reconsideration, and when the decision orders retroactive restoration, 
the Board shall comply with the decision to the extent of the temporary 
or conditional restoration of the employee to duty status in the 
position specified by the Commission, pending the outcome of the Board's 
request for reconsideration.
    (1) Service under the temporary or conditional restoration 
provisions of this paragraph (b) shall be credited toward the completion 
of a probationary or trial period or the completion of the service 
requirement for career tenure, if the Commission upholds its decision 
after reconsideration.
    (2) When the Board requests reconsideration, it may delay the 
payment of any amounts ordered to be paid to the complainant until after 
the request for reconsideration is resolved. If the Board delays payment 
of any amount pending the outcome of the request to reconsider and the 
resolution of the request requires the Board to make the payment, then 
the Board shall pay interest from the date of the original appellate 
decision until payment is made.
    (3) The Board shall notify the Commission and the employee in 
writing at the same time it requests reconsideration that the relief it 
provides is temporary or conditional and, if applicable, that it will 
delay the payment of any amounts owed but will pay interest as specified 
in paragraph (b)(2) of this section. Failure of the Board to provide 
notification will result in the dismissal of the Board's request.
    (c) When no request for reconsideration is filed or when a request 
for reconsideration is denied, the Board shall provide the relief 
ordered and there is no further right to delay implementation of the 
ordered relief. The relief shall be provided in full not later than 60 
days after receipt of the final decision unless otherwise ordered in the 
decision.



Sec. 268.503  Enforcement of final EEOC decisions.

    (a) Petition for enforcement. A complainant may petition the 
Commission for enforcement of a decision issued under the Commission's 
appellate jurisdiction. The petition shall be submitted to the Office of 
Federal Operations. The petition shall specifically set forth the 
reasons that lead the complainant to believe that the Board is not 
complying with the decision.
    (b) Compliance. On behalf of the Commission, the Office of Federal 
Operations shall take all necessary action to ascertain whether the 
Board is implementing the decision of the Commission. If the Board is 
found not to be in compliance with the decision, efforts shall be 
undertaken to obtain compliance.
    (c) Clarification. On behalf of the Commission, the Office of 
Federal Operations may, on its own motion or in response to a petition 
for enforcement or in connection with a timely request for 
reconsideration, issue a clarification of a prior decision. A 
clarification cannot change the result of a prior decision or enlarge or 
diminish the relief ordered but may further explain the meaning or 
intent of the prior decision.
    (d) Referral to the Commission. Where the Director, Office of 
Federal Operations, is unable to obtain satisfactory compliance with the 
final decision, the Director shall submit appropriate findings and 
recommendations for enforcement to the Commission, or, as directed by 
the Commission, refer the matter to another appropriate agency.
    (e) Commission notice to show cause. The Commission may issue a 
notice to the Chairman of the Board to show cause why there is 
noncompliance. Such notice may request the Chairman of the Board or a 
representative to appear before the Commission or to respond to the 
notice in writing with adequate evidence of compliance or with 
compelling reasons for noncompliance.
    (f) Notification to complainant of completion of administrative 
efforts. Where the Commission has determined that the Board is not 
complying with a

[[Page 369]]

prior decision, or where the Board has failed or refused to submit any 
required report of compliance, the Commission shall notify the 
complainant the right to file a civil action for enforcement of the 
decision pursuant to title VII, the ADEA, the Equal Pay Act or the 
Rehabilitation Act and to seek judicial review of the Board's refusal to 
implement the ordered relief pursuant to the Administrative Procedures 
Act, 5 U.S.C. 701 et seq., and the mandamus statute, 28 U.S.C. 1361, or 
to commence de novo proceedings pursuant to the appropriate statutes.



Sec. 268.504  Compliance with settlement agreements and final actions.

    (a) Any settlement agreement knowingly and voluntarily agreed to by 
the parties, reached at any stage of the complaint process, shall be 
binding on both parties. Final action that has not been the subject of 
an appeal or a civil action shall be binding on the Board. If the 
complainant believes that the Board has failed to comply with the terms 
of a settlement agreement or decision, the complainant shall notify the 
Board's EEO Programs Director, in writing, of the alleged noncompliance 
within 30 days of when the complainant knew or should have known of the 
alleged noncompliance. The complainant may request that the terms of the 
settlement agreement be specifically implemented or, alternatively, that 
the complaint be reinstated for further processing from the point 
processing ceased.
    (b) The Board shall resolve the matter and respond to the 
complainant, in writing. If the Board has not responded to the 
complainant, in writing, or if the complainant is not satisfied with the 
Board's attempt to resolve the matter, the complainant may appeal to the 
Commission for a determination as to whether the Board has complied with 
the terms of the settlement agreement or decision. The complainant may 
file such an appeal 35 days after he or she has served the Board with 
the allegations of noncompliance, but must file an appeal within 30 days 
of his or her receipt of the Board's determination. The complainant must 
serve a copy of the appeal on the Board and the Board may submit a 
response to the Commission within 30 days of receiving notice of the 
appeal.
    (c) Prior to rendering its determination, the Commission may request 
that the parties submit whatever additional information or documentation 
it deems necessary or may direct that an investigation or hearing on the 
matter be conducted. If the Commission determines that the Board is not 
in compliance and the noncompliance is not attributable to acts or 
conduct of the complainant, it may order such compliance or it may order 
that the complaint be reinstated for further processing from the point 
processing ceased. Allegations that subsequent acts of discrimination 
violate a settlement agreement shall be processed as separate complaints 
under Sec. Sec. 268.105 or 268.204, as appropriate, rather than under 
this section.



Sec. 268.505  Interim relief.

    (a)(1) When the Board appeals and the case involves removal, 
separation, or suspension continuing beyond the date of the appeal, and 
when the administrative judge orders retroactive restoration, the Board 
shall comply with the decision to the extent of the temporary or 
conditional restoration of the employee to duty status in the position 
specified in the decision, pending the outcome of the Board appeal. The 
employee may decline the offer of interim relief.
    (2) Service under the temporary or conditional restoration 
provisions of paragraph (a)(1) of this section shall be credited toward 
the completion of a probationary or trial period, eligibility for a 
within-grade increase, or the completion of the service requirement for 
career tenure, if the Commission upholds the decision on appeal. Such 
service shall not be credited toward the completion of any applicable 
probationary or trial period or the completion of the service 
requirement for career tenure if the Commission reverses the decision on 
appeal.
    (3) When the Board appeals, it may delay the payment of any amount, 
other than prospective pay and benefits, ordered to be paid to the 
complainant until after the appeal is resolved. If the Board delays 
payment of any amount pending the outcome of

[[Page 370]]

the appeal and the resolution of the appeal requires the Board to make 
the payment, then the Board shall pay interest from the date of the 
original decision until payment is made.
    (4) The Board shall notify the Commission and the employee in 
writing at the same time it appeals that the relief it provides is 
temporary or conditional and, if applicable, that it will delay the 
payment of any amounts owed but will pay interest as specified in 
paragraph (b)(2) of this section. Failure of the Board to provide 
notification will result in the dismissal of the Board's appeal.
    (5) The Board may, by notice to the complainant, decline to return 
the complainant to his or her place of employment if it determines that 
the return or presence of the complainant will be unduly disruptive to 
the work environment. However, prospective pay and benefits must be 
provided. The determination not to return the complainant to his or her 
place of employment is not reviewable. A grant of interim relief does 
not insulate a complainant from subsequent disciplinary or adverse 
action.
    (b) If the Board files an appeal and has not provided required 
interim relief, the complainant may request dismissal of the Board's 
appeal. Any such request must be filed with the Office of Federal 
Operations within 25 days of the date of service of the Board's appeal. 
A copy of the request must be served on the Board at the same time it is 
filed with EEOC. The Board may respond with evidence and argument to the 
complainant's request to dismiss within 15 days of the date of service 
of the request.



               Subpart G_Matters of General Applicability



Sec. 268.601  EEO group statistics.

    (a) The Board shall establish a system to collect and maintain 
accurate employment information on the race, national origin, sex and 
disability(ies) of its employees.
    (b) Data on race, national origin and sex shall be collected by 
voluntary self-identification. If an employee does not voluntarily 
provide the requested information, the Board shall advise the employee 
of the importance of the data and of the Board's obligation to report 
it. If the employee still refuses to provide the information, the Board 
must make a visual identification and inform the employee of the data it 
will be reporting. If the Board believes that information provided by an 
employee is inaccurate, the Board shall advise the employee about the 
solely statistical purpose for which the data is being collected, the 
need for accuracy, the Board's recognition of the sensitivity of the 
information and the existence of procedures to prevent its unauthorized 
disclosure. If, thereafter, the employee declines to change the 
apparently inaccurate self identification, the Board must accept it.
    (c) Subject to applicable law, the information collected under 
paragraph (b) of this section shall be disclosed only in the form of 
gross statistics. The Board shall not collect or maintain any 
information on the race, national origin or sex of individual employees 
except in accordance with applicable law and when an automated data 
processing system is used in accordance with standards and requirements 
prescribed by the Commission to insure individual privacy and the 
separation of that information from personnel records.
    (d) The Board's system is subject to the following controls:
    (1) Only those categories of race and national origin prescribed by 
the Commission may be used;
    (2) Only the specific procedures for the collection and maintenance 
of data that are prescribed or approved by the Commission may be used.
    (e) The Board may use the data only in studies and analyses which 
contribute affirmatively to achieving the objectives of the Board's 
equal employment opportunity program. The Board shall not establish a 
quota for the employment of persons on the basis of race, color, 
religion, sex, or national origin.
    (f) Data on disabilities shall also be collected by voluntary self-
identification. If an employee does not voluntarily provide the 
requested information, the Board shall advise the employee of the 
importance of the data and of the Board's obligation to report

[[Page 371]]

it. If an employee who has been appointed pursuant to a special Board 
program for hiring individuals with a disability still refuses to 
provide the requested information, the Board must identify the 
employee's disability based upon the records supporting the appointment. 
If any other employee still refuses to provide the requested information 
or provides information that the Board believes to be inaccurate, the 
Board should report the employee's disability status as unknown.
    (g) The Board shall report to the Commission on employment by race, 
national origin, sex and disability in the form and at such times as the 
Board and Commission shall agree.



Sec. 268.602  Reports to the Commission.

    (a) The Board shall report to the Commission information concerning 
pre-complaint counseling and the status, processing, and disposition of 
complaints under this part at such times and in such manner as the Board 
and Commission shall agree.
    (b) The Board shall advise the Commission whenever it is served with 
a Federal court complaint based upon a complaint that is pending on 
appeal at the Commission.
    (c) The Board shall submit annually for the review and approval of 
the Commission written equal employment opportunity plans of action. 
Plans shall be submitted in the format prescribed by the Commission and 
shall include, but not be limited to:
    (1) Provision for the establishment of training and education 
programs designed to provide maximum opportunity for employees to 
advance so as to perform at their highest potential;
    (2) Description of the qualifications, in terms of training and 
experience relating to equal employment opportunity, of the principal 
and operating officials concerned with administration of the Board's 
equal employment opportunity program; and
    (3) Description of the allocation of personnel and resources 
proposed by the Board to carry out its equal employment opportunity 
program.



Sec. 268.603  Voluntary settlement attempts.

    The Board shall make reasonable efforts to voluntarily settle 
complaints of discrimination as early as possible in, and throughout, 
the administrative processing of complaints, including the pre-complaint 
counseling stage. Any settlement reached shall be in writing and signed 
by both parties and shall identify the claims resolved.



Sec. 268.604  Filing and computation of time.

    (a) All time periods in this part that are stated in terms of days 
are calendar days unless otherwise stated.
    (b) A document shall be deemed timely if it is received or 
postmarked before the expiration of the applicable filing period, or, in 
the absence of a legible postmark, if it is received by mail within five 
days of the expiration of the applicable filing period.
    (c) The time limits in this part are subject to waiver, estoppel and 
equitable tolling.
    (d) The first day counted shall be the day after the event from 
which the time period begins to run and the last day of the period shall 
be included, unless it falls on a Saturday, Sunday or Federal holiday, 
in which case the period shall be extended to include the next business 
day.



Sec. 268.605  Representation and official time.

    (a) At any stage in the processing of a complaint, including the 
counseling stage under Sec. 268.104, the complainant shall have the 
right to be accompanied, represented, and advised by a representative of 
complainant's choice.
    (b) If the complainant is an employee of the Board, he or she shall 
have a reasonable amount of official time, if otherwise on duty, to 
prepare the complaint and to respond to Board and EEOC requests for 
information. If the complainant is an employee of the Board and he 
designates another employee of the Board as his or her representative, 
the representative shall have a reasonable amount of official time, if 
otherwise on duty, to prepare the complaint and respond to Board and 
EEOC requests for information. The Board is not obligated to change

[[Page 372]]

work schedules, incur overtime wages, or pay travel expenses to 
facilitate the choice of a specific representative or to allow the 
complainant and representative to confer. The complainant and the 
representative, if employed by the Board and otherwise in a pay status, 
shall be on official time, regardless of their tour of duty, when their 
presence is authorized or required by the Board or the Commission during 
the investigation, informal adjustment, or hearing on the complaint.
    (c) In cases where the representation of a complainant or the Board 
would conflict with the official or collateral duties of the 
representative, the Commission or the Board may, after giving the 
representative an opportunity to respond, disqualify the representative.
    (d) Unless the complainant states otherwise in writing, after the 
Board has received written notice of the name, address and telephone 
number of a representative for the complainant, all official 
correspondence shall be with the representative with copies to the 
complainant. When the complainant designates an attorney as 
representative, service of all official correspondence shall be made on 
the attorney and the complainant, but time frames for receipt of 
material shall be computed from the time of receipt by the attorney. The 
complainant must serve all official correspondence on the designated 
representative of the Board.
    (e) The complainant shall at all times be responsible for proceeding 
with the complaint whether or not he or she has designated a 
representative.
    (f) Witnesses who are Board employees shall be in a duty status when 
their presence is authorized or required by Commission or Board 
officials in connection with a complaint.



Sec. 268.606  Joint processing and consolidation of complaints.

    Complaints of discrimination filed by two or more complainants 
consisting of substantially similar allegations of discrimination or 
relating to the same matter may be consolidated by the Board or the 
Commission for joint processing after appropriate notification to the 
parties. Two or more complaints of discrimination filed by the same 
complainant shall be consolidated by the Board for joint processing 
after appropriate notification to the complainant. When a complaint has 
been consolidated with one or more earlier filed complaints, the Board 
shall complete its investigation within the earlier of 180 days after 
the filing of the last complaint or 360 days after the filing of the 
original complaint, except that the complainant may request a hearing 
from an administrative judge on the consolidated complaints any time 
after 180 days from the date of the first filed complaint. 
Administrative judges or the Commission may, in their discretion, 
consolidate two or more complaints of discrimination filed by the same 
complainant.



Sec. 268.607  Delegation of authority.

    The Board of Governors may delegate authority under this part, to 
one or more designees.



   Subpart H_Prohibition Against Discrimination in Board Programs and 
           Activities Because of Physical or Mental Disability



Sec. 268.701  Purpose and application.

    (a) Purpose. The purpose of this subpart H is to prohibit 
discrimination on the basis of a disability in programs or activities 
conducted by the Board.
    (b) Application. (1) This subpart H applies to all programs and 
activities conducted by the Board. Such programs and activities include:
    (i) Holding open meetings of the Board or other meetings or public 
hearings at the Board's office in Washington, DC;
    (ii) Responding to inquiries, filing complaints, or applying for 
employment at the Board's office;
    (iii) Making available the Board's library facilities; and
    (iv) Any other lawful interaction with the Board or its staff in any 
official matter with people who are not employees of the Board.
    (2) This subpart H does not apply to Federal Reserve Banks or to 
financial institutions or other companies supervised or regulated by the 
Board.

[[Page 373]]



Sec. 268.702  Definitions.

    For purposes of this subpart, the following definitions apply:
    (a) Auxiliary aids means services or devices that enable persons 
with impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Board. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    (b) Complete complaint means a written statement that contains the 
complainant's name and address and describes the Board's alleged 
discriminatory action in sufficient detail to inform the Board of the 
nature and date of the alleged violation. It shall be signed by the 
complainant or by someone authorized to do so on his or her behalf. 
Complaints filed on behalf of classes or third parties shall describe or 
identify (by name, if possible) the alleged victims of discrimination.
    (c) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    (d) Person with a disability means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one of more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Board as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (d)(1) of 
this section but is treated by Board as having such an impairment.
    (e) Qualified person with a disability means--
    (1) With respect to any Board program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a person with a disability who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
Board can demonstrate would result in a fundamental alteration in its 
nature; or
    (2) With respect to any other program or activity, a person with a 
disability who meets the essential eligibility requirements for 
participation

[[Page 374]]

in, or receipt of benefits from, that program or activity.
    (3) Qualified individual with a disability is defined for purposes 
of employment in Sec. 268.203 of this part, which is made applicable to 
this subpart by Sec. 268.705.



Sec. 268.703  Notice.

    The Board shall make available to employees, applicants for 
employment, participants, beneficiaries, and other interested persons 
information regarding the provisions of this subpart and its 
applicability to the programs and activities conducted by the Board, and 
make this information available to them in such manner as the Board 
finds necessary to apprise such persons of the protections against 
discrimination assured them by this subpart.



Sec. 268.704  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis of 
a disability, be excluded from participation in, be denied the benefits 
of, or otherwise be subjected to discrimination in any program or 
activity conducted by the Board.
    (b)(1) The Board, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of a disability:
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that provided to others;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with a disability or to any class of individuals with a 
disability than is provided to others unless such action is necessary to 
provide qualified individuals with a disability with aid, benefits, or 
services that are as effective as those provided to others;
    (v) Deny a qualified individual with a disability the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with a disability in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Board may not deny a qualified individual with a disability 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The Board may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration, the purpose 
or effect of which would:
    (i) Subject qualified individuals with a disability to 
discrimination on the basis of a disability; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with a disability.
    (4) The Board may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would:
    (i) Exclude individuals with a disability from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the Board; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives or a program or activity with respect to individuals with a 
disability.
    (5) The Board, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with a disability to 
discrimination on the basis of a disability.
    (6) The Board may not administer a licensing or certification 
program in a manner that subjects qualified individuals with a 
disability to discrimination on the basis of a disability, nor may the 
Board establish requirements for the programs and activities of 
licensees or certified entities that subject qualified individuals with 
a disability

[[Page 375]]

to discrimination on the basis of a disability. However, the programs 
and activities of entities that are licensed or certified by the Board 
are not, themselves, covered by this subpart.
    (c) The exclusion of individuals who do not have a disability from 
the benefits of a program limited by Federal statute or Board order to 
individuals with a disability or the exclusion of a specific class of 
individuals with a disability from a program limited by Federal statute 
or Board order to a different class of individuals with a disability is 
not prohibited by this subpart.
    (d) The Board shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with a disability.



Sec. 268.705  Employment.

    No qualified individual with a disability shall, on the basis of a 
disability, be subjected to discrimination in employment under any 
program or activity conducted by the Board. The definitions, 
requirements and procedures of Sec. 268.203 of this part shall apply to 
discrimination in employment in federally conducted programs or 
activities.



Sec. 268.706  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 268.707 of this subpart, no 
qualified individual with a disability shall, because the Board's 
facilities are inaccessible to or unusable by individuals with a 
disability, be denied the benefits of, be excluded from participation 
in, or otherwise be subjected to discrimination under any program or 
activity conducted by the Board.



Sec. 268.707  Program accessibility: Existing facilities.

    (a) General. The Board shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with a disability. This 
paragraph (a) does not:
    (1) Necessarily require the Board to make each of its existing 
facilities accessible to and usable by individuals with a disability; or
    (2) Require the Board to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where the Board believes that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, the Board has the burden of 
proving that compliance with this paragraph (a) would result in such 
alterations or burdens. The decision that compliance would result in 
such alterations or burdens shall be made by the Board of Governors or 
their designee after considering all Board resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action would result in such an alteration or such 
burdens, the Board shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
individuals with a disability receive the benefits and services of the 
program or activity.
    (b) Methods. The Board may comply with the requirements of this 
subpart H through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to individuals 
with a disability, home visits, delivery of service at alternate 
accessible sites, alteration of existing facilities and construction of 
new facilities, use of accessible rolling stock, or any other methods 
that result in making its programs or activities readily accessible to 
and usable by individuals with a disability. The Board is not required 
to make structural changes in existing facilities where other methods 
are effective in achieving compliance with this section. In choosing 
among available methods for meeting the requirements of this section, 
the Board shall give priority to those methods that offer programs and 
activities to qualified individuals with a disability in the most 
integrated setting appropriate.

[[Page 376]]

    (c) Time period for compliance. The Board shall comply with any 
obligations established under this section as expeditiously as possible.



Sec. 268.708  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Board shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with a disability.



Sec. 268.709  Communications.

    (a) The Board shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Board shall furnish appropriate auxiliary aids where 
necessary to afford an individual with a disability an equal opportunity 
to participate in, and enjoy the benefits of, a program or activity 
conducted by the Board.
    (i) In determining what type of auxiliary aid is necessary, the 
Board shall give primary consideration to the requests of the individual 
with a disability.
    (ii) The Board need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the Board communicates with employees and others by 
telephone, telecommunication devices for deaf persons (TDD's) or equally 
effective telecommunication systems shall be used.
    (b) The Board shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Board shall provide signage at a primary entrance to each of 
its inaccessible facilities, directing users to a location at which they 
can obtain information about accessible facilities. The international 
symbol for accessibility shall be used at each primary entrance of an 
accessible facility.
    (d) This section does not require the Board to take any action that 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where the Board believes that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, the Board has the burden of 
proving that compliance with section 268.709 would result in such 
alterations or burdens. The determination that compliance would result 
in such alteration or burdens must be made by the Board of Governors or 
their designee after considering all Board resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the Board shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
individuals with a disability receive the benefits and services of the 
program or activity.



Sec. 268.710  Compliance procedures.

    (a) Applicability. Except as provided in paragraph (b) of this 
section, this section, rather than subpart B and Sec. 268.203 of this 
part, applies to all allegations of discrimination on the basis of a 
disability in programs or activities conducted by the Board.
    (b) Employment complaints. The Board shall process complaints 
alleging discrimination in employment on the basis of a disability in 
accordance with subparts A through G of this part.
    (c) Responsible official. The EEO Programs Director shall be 
responsible for coordinating implementation of this section.
    (d) Filing the complaint--(1) Who may file. Any person who believes 
that he or she has been subjected to discrimination prohibited by this 
subpart may, personally or by his or her authorized representative, file 
a complaint of discrimination with the EEO Programs Director.
    (2) Confidentiality. The EEO Programs Director shall not reveal the 
identity of any person submitting a complaint, except when authorized to 
do so in

[[Page 377]]

writing by the complainant, and except to the extent necessary to carry 
out the purposes of this subpart , including the conduct of any 
investigation, hearing, or proceeding under this subpart.
    (3) When to file. Complaints shall be filed within 180 days of the 
alleged act of discrimination. The EEO Programs Director may extend this 
time limit for good cause shown. For the purpose of determining when a 
complaint is timely filed under this paragraph (d), a complaint mailed 
to the Board shall be deemed filed on the date it is postmarked. Any 
other complaint shall be deemed filed on the date it is received by the 
Board.
    (4) How to file. Complaints may be delivered or mailed to the 
Administrative Governor, the Staff Director for Management, the EEO 
Programs Director, the Federal Women's Program Manager, the Hispanic 
Employment Program Coordinator, or the People with Disabilities Program 
Coordinator. Complaints should be sent to the EEO Programs Director, 
Board of Governors of the Federal Reserve System, 20th and C Street NW., 
Washington, DC 20551. If any Board official other than the EEO Programs 
Director receives a complaint, he or she shall forward the complaint to 
the EEO Programs Director.
    (e) Acceptance of complaint. (1) The EEO Programs Director shall 
accept a complete complaint that is filed in accordance with paragraph 
(d) of this section and over which the Board has jurisdiction. The EEO 
Programs Director shall notify the complainant of receipt and acceptance 
of the complaint.
    (2) If the EEO Programs Director receives a complaint that is not 
complete, he or she shall notify the complainant, within 30 days of 
receipt of the incomplete complaint, that additional information is 
needed. If the complainant fails to complete the complaint within 30 
days of receipt of this notice, the EEO Programs Director shall dismiss 
the complaint without prejudice.
    (3) If the EEO Programs Director receives a complaint over which the 
Board does not have jurisdiction, the EEO Programs Director shall notify 
the complainant and shall make reasonable efforts to refer the complaint 
to the appropriate government entity.
    (f) Investigation/conciliation. (1) Within 180 days of the receipt 
of a complete complaint, the EEO Programs Director shall complete the 
investigation of the complaint, attempt informal resolution of the 
complaint, and if no informal resolution is achieved, the EEO Programs 
Director shall forward the investigative report to the Staff Director 
for Management.
    (2) The EEO Programs Director may request Board employees to 
cooperate in the investigation and attempted resolution of complaints. 
Employees who are requested by the EEO Programs Director to participate 
in any investigation under this section shall do so as part of their 
official duties and during the course of regular duty hours.
    (3) The EEO Programs Director shall furnish the complainant with a 
copy of the investigative report promptly after completion of the 
investigation and provide the complainant with an opportunity for 
informal resolution of the complaint.
    (4) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made a part of the complaint 
file, with a copy of the agreement provided to the complainant. The 
written agreement may include a finding on the issue of discrimination 
and shall describe any corrective action to which the complainant has 
agreed.
    (g) Letter of findings. (1) If an informal resolution of the 
complaint is not reached, the EEO Programs Director shall transmit the 
complaint file to the Staff Director for Management. The Staff Director 
for Management shall, within 180 days of the receipt of the complete 
complaint by the EEO Programs Director, notify the complainant of the 
results of the investigation in a letter sent by certified mail, return 
receipt requested, containing:
    (i) Findings of fact and conclusions of law;
    (ii) A description of a remedy for each violation found;
    (iii) A notice of right of the complainant to appeal the letter of 
findings under paragraph (k) of this section; and
    (iv) A notice of right of the complainant to request a hearing.

[[Page 378]]

    (2) If the complainant does not file a notice of appeal or does not 
request a hearing within the times prescribed in paragraph (h)(1) and 
(j)(1) of this section, the EEO Programs Director shall certify that the 
letter of findings under this paragraph (g) is the final decision of the 
Board at the expiration of those times.
    (h) Filing an appeal. (1) Notice of appeal, with or without a 
request for hearing, shall be filed by the complainant with the EEO 
Programs Director within 30 days of receipt from the Staff Director for 
Management of the letter of findings required by paragraph (g) of this 
section.
    (2) If the complainant does not request a hearing, the EEO Programs 
Director shall notify the Board of Governors of the appeal by the 
complainant and that a decision must be made under paragraph (k) of this 
section.
    (i) Acceptance of appeal. The EEO Programs Director shall accept and 
process any timely appeal. A complainant may appeal to the 
Administrative Governor from a decision by the EEO Programs Director 
that an appeal is untimely. This appeal shall be filed within 15 
calendar days of receipt of the decision from the EEO Programs Director.
    (j) Hearing. (1) Notice of a request for a hearing, with or without 
a request for an appeal, shall be filed by the complainant with the EEO 
Programs Director within 30 days of receipt from the Staff Director for 
Management of the letter of findings required by paragraph (g) of this 
section. Upon a timely request for a hearing, the EEO Programs Director 
shall request that the Board of Governors, or its designee, appoint an 
administrative law judge to conduct the hearing. The administrative law 
judge shall issue a notice to the complainant and the Board specifying 
the date, time, and place of the scheduled hearing. The hearing shall be 
commenced no earlier than 15 calendar days after the notice is issued 
and no later than 60 days after the request for a hearing is filed, 
unless all parties agree to a different date.
    (2) The hearing, decision, and any administrative review thereof 
shall be conducted in conformity with 5 U.S.C. 554-557. The 
administrative law judge shall have the duty to conduct a fair hearing, 
to take all necessary actions to avoid delay, and to maintain order. He 
or she shall have all powers necessary to these ends, including (but not 
limited to) the power to:
    (i) Arrange and change the dates, times, and places of hearings and 
prehearing conferences and to issue notice thereof;
    (ii) Hold conferences to settle, simplify, or determine the issues 
in a hearing, or to consider other matters that may aid in the 
expeditious disposition of the hearing;
    (iii) Require parties to state their positions in writing with 
respect to the various issues in the hearing and to exchange such 
statements with all other parties;
    (iv) Examine witnesses and direct witnesses to testify;
    (v) Receive, rule on, exclude, or limit evidence;
    (vi) Rule on procedural items pending before him or her; and
    (vii) Take any action permitted to the administrative law judge as 
authorized by this subpart G or by the provisions of the Administrative 
Procedures Act (5 U.S.C. 554-557).
    (3) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this paragraph (j), but rules or principles 
designed to assure production of credible evidence and to subject 
testimony to cross-examination shall be applied by the administrative 
law judge wherever reasonably necessary. The administrative law judge 
may exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties, and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record.
    (4) The costs and expenses for the conduct of a hearing shall be 
allocated as follows:
    (i) Employees of the Board shall, upon the request of the 
administrative

[[Page 379]]

law judge, be made available to participate in the hearing and shall be 
on official duty status for this purpose. They shall not receive witness 
fees.
    (ii) Employees of other Federal agencies called to testify at a 
hearing, at the request of the administrative law judge and with the 
approval of the employing agency, shall be on official duty status 
during any absence from normal duties caused by their testimony, and 
shall not receive witness fees.
    (iii) The fees and expenses of other persons called to testify at a 
hearing shall be paid by the party requesting their appearance.
    (iv) The administrative law judge may require the Board to pay 
travel expenses necessary for the complainant to attend the hearing.
    (v) The Board shall pay the required expenses and charges for the 
administrative law judge and court reporter.
    (vi) All other expenses shall be paid by the parties incurring them.
    (5) The administrative law judge shall submit in writing recommended 
findings of fact, conclusions of law, and remedies to the complainant 
and the EEO Programs Director within 30 days, after the receipt of the 
hearing transcripts, or within 30 days after the conclusion of the 
hearing if no transcripts are made. This time limit may be extended with 
the permission of the EEO Programs Director.
    (6) Within 15 calendar days after receipt of the recommended 
decision of the administrative law judge, the complainant may file 
exceptions to the recommended decision with the EEO Programs Director. 
On behalf of the Board, the EEO Programs Director may, within 15 
calendar days after receipt of the recommended decision of the 
administrative law judge, take exception to the recommended decision of 
the administrative law judge and shall notify the complainant in writing 
of the Board's exception. Thereafter, the complainant shall have 10 
calendar days to file reply exceptions with the EEO Programs Director. 
The EEO Programs Director shall retain copies of the exceptions and 
replies to the Board's exception for consideration by the Board. After 
the expiration of the time to reply, the recommended decision shall be 
ripe for a decision under paragraph (k) of this section.
    (k) Decision. (1) The EEO Programs Director shall notify the Board 
of Governors when a complaint is ripe for decision under this paragraph 
(k). At the request of any member of the Board of Governors made within 
3 business days of such notice, the Board of Governors shall make the 
decision on the complaint. If no such request is made, the 
Administrative Governor, or the Staff Director for Management if he or 
she is delegated the authority to do so, shall make the decision on the 
complaint. The decision shall be made based on information in the 
investigative record and, if a hearing is held, on the hearing record. 
The decision shall be made within 60 days of the receipt by the EEO 
Programs Director of the notice of appeal and investigative record 
pursuant to paragraph (h)(1) of this section or 60 days following the 
end of the period for filing reply exceptions set forth in paragraph 
(j)(6) of this section, whichever is applicable. If the decision-maker 
under this paragraph (k) determines that additional information is 
needed from any party, the decision-maker shall request the information 
and provide the other party or parties an opportunity to respond to that 
information. The decision-maker shall have 60 days from receipt of the 
additional information to render the decision on the appeal. The 
decision-maker shall transmit the decision by letter to all parties. The 
decision shall set forth the findings, any remedial actions required, 
and the reasons for the decision. If the decision is based on a hearing 
record, the decision-maker shall consider the recommended decision of 
the administrative law judge and render a final decision based on the 
entire record. The decision-maker may also remand the hearing record to 
the administrative law judge for a fuller development of the record.
    (2) The Board shall take any action required under the terms of the 
decision promptly. The decision-maker may require periodic compliance 
reports specifying:
    (i) The manner in which compliance with the provisions of the 
decision has been achieved;

[[Page 380]]

    (ii) The reasons any action required by the final Board decision has 
not been taken; and
    (iii) The steps being taken to ensure full compliance.
    (3) The decision-maker may retain responsibility for resolving 
disputes that arise between parties over interpretation of the final 
Board decision, or for specific adjudicatory decisions arising out of 
implementation.



PART 269_POLICY ON LABOR RELATIONS FOR THE FEDERAL RESERVE BANKS--
Table of Contents



Sec.
269.1 Definition of a labor organization.
269.2 Membership in a labor organization.
269.3 Recognition of a labor organization and its relationship to a 
          Federal Reserve Bank.
269.4 Determination of appropriate bargaining unit.
269.5 Elections.
269.6 Unfair labor practices.
269.7 Approval of agreement and required contents.
269.8 Grievance procedures.
269.9 Mediation of negotiation impasses.
269.10 Time for internal labor organization business, consultations and 
          negotiations.
269.11 Federal Reserve System Labor Relations Panel.
269.12 Amendment.

    Authority: Sec. 11, 38 Stat. 261; 12 U.S.C. 248.

    Source: 48 FR 32331, July 15, 1983, unless otherwise noted.



Sec. 269.1  Definition of a labor organization.

    When used in this part, the term labor organization means any lawful 
organization of any kind, or any employee representation group, which 
exists for the purpose, in whole or in part, of dealing with any Federal 
Reserve Bank concerning grievances, personnel policies and practices, or 
other matters affecting the working conditions of its employees, but the 
term shall not include any organization:
    (a) Which asserts the right to strike against the government of the 
United States, the Board of Governors of the Federal Reserve System, or 
any Federal Reserve Bank, or to assist or participate in any such 
strike, or which imposes a duty or obligation to conduct, assist or 
participate in any such strike; or
    (b) Which fails to agree to refrain from seeking or accepting 
support from any organization which employs coercive tactics affecting 
any Federal Reserve Bank's operations; or
    (c) Which advocates the overthrow of the constitutional form of the 
government of the United States; or
    (d) Which discriminates with regard to the terms or conditions of 
membership because of race, color, sex, creed, age or national origin.



Sec. 269.2  Membership in a labor organization.

    (a) Any employee of a Federal Reserve Bank (hereinafter referred to 
as ``Bank'') is free to join and assist any existing labor organization 
or to participate in the formation of a new labor organization, or to 
refrain from any such activities except that officers and their 
administrative or confidential assistants, managers and other 
supervisory personnel, secretaries to all such persons and all employees 
engaged in Bank personnel work shall not be represented by any labor 
organization.
    (b) The rights described in paragraph (a) of this section for 
employees do not extend to participation in the management of a labor 
organization, or acting as a representative of any such organization, 
where such participation or activity would conflict with law or the 
duties of an employee.
    (c) Notwithstanding anything stated in paragraph (a) of this 
section, professional employees of a Bank shall not be represented by a 
labor organization which represents other employees of the Bank unless a 
majority of the professional employees eligible to vote specifically 
elect to be represented by such labor organization. However, the 
professional employees of a Bank may, if they so choose, be represented 
by a separate labor organization of their own, or by no labor 
organization at all.
    (d) Notwithstanding anything stated in paragraph (a) of this 
section, the guards of a Bank shall not be members of a labor 
organization which represents other categories of employees of the Bank. 
However, the guards of a

[[Page 381]]

Bank may, if they so choose, be represented by a separate labor 
organization of their own, or by no labor organization at all.



Sec. 269.3  Recognition of a labor organization and its relationship
to a Federal Reserve Bank.

    (a) Any labor organization shall be recognized as the exclusive 
bargaining representative of the employees in an appropriate unit of a 
Bank when that organization has been selected by the employees in said 
unit pursuant to the procedure set forth in Sec. 269.5. A unit may be 
established in a Bank on any basis which will ensure a clear and 
identifiable community of interest among the employees concerned, and 
will promote effective relationships and the efficiency of the Bank's 
operations, but no unit shall be established solely on the basis of the 
extent to which a labor organization or employees in the proposed unit 
may have sought organization.
    (b) When a labor organization has been recognized as the exclusive 
representative of employees in an appropriate unit, it shall be entitled 
to act for and to negotiate agreements in good faith covering all 
employees in the unit, and it shall be responsible for representing the 
interests of all such employees without discrimination and without 
regard to whether they are members of that labor organization or not, 
provided that nothing in this Policy shall prevent an employee from 
adjusting his or her grievance without the intervention of the 
recognized labor organization. The labor organization shall be given 
notice of the adjustment and a reasonable opportunity to object on the 
sole ground that it is in conflict with the terms of the collective 
bargaining agreement.
    (c) A Bank, through appropriate officials, shall have the obligation 
to meet at reasonable times with representatives of a recognized labor 
organization to negotiate, in good faith, with respect to personnel 
policies and practices affecting working conditions for employees, 
provided that they do not involve matters in any of the following areas:
    (1) The purposes and functions of the Bank; the compensation of and 
hours worked by employees; any classification system used to evaluate 
positions; the budget of the Bank; the retirement system; any insurance 
or other benefit plans; internal security operations; maintenance of the 
efficiency of Bank operations including the determination of work 
methods; the right to contract out; the determination as to manpower 
requirements; use of technology and organization of work; and action to 
meet emergency situations;
    (2) Management rights as to the direction of employees, including 
hiring, promotion, transfer, classification, assignment, layoffs, 
retention, suspension, demotion, discipline and discharge, provided that 
on matters involving the procedures to be followed by a Bank for the 
exercise of its rights under this subparagraph, a Bank shall, upon 
request, discuss such procedures with a recognized labor organization, 
but shall not be required to negotiate for an agreement as to them;
    (3) All Bank matters specifically governed by applicable laws or 
regulations.

The obligation under this paragraph to negotiate with regard to certain 
matters shall include the execution of a written contract incorporating 
any agreement reached, but does not compel either a Bank or a labor 
organization to agree to a particular proposal or to make any concession 
during such negotiations.
    (d) At the time it requests an election to be held, any labor 
organization seeking recognition shall submit to a Bank a roster of its 
officers and representatives, a copy of its constitution and bylaws, and 
a statement of its objectives.
    (e) Subject to the provisions of Sec. 269.8, the exclusive 
recognition of a labor organization shall not preclude any employee, 
regardless of labor organization membership, from bringing matters of 
personal concern not governed by a collective bargaining agreement to 
the attention of appropriate officers, managers or supervisory personnel 
in accordance with applicable law, rule, regulation, or established Bank 
policy, or from choosing his or her own representative in such matters.

[[Page 382]]



Sec. 269.4  Determination of appropriate bargaining unit.

    (a) If a labor organization asserts in writing to a Bank that it 
holds cards requesting a representation election signed by at least 
thirty percent (30%) of the employees in a unit which that organization 
considers to be an appropriate bargaining unit, the labor organization 
and the Bank shall each designate a representative who together shall 
request the American Arbitration Association (hereinafter referred to as 
``Association'') to submit to them from its National Panel of 
Professional Labor Arbitrators a list of seven (7) impartial, qualified 
professional arbitrators. The two designated representatives shall meet 
promptly and, by alternately striking names from the list, arrive at the 
remaining person who, together with the two representatives, shall 
constitute a Special Tribunal to rule on the labor organization's 
request for an election. The impartial arbitrator shall always act as 
the Chairperson of any Special Tribunal duly constituted under this 
section.
    (b) In the absence of an agreement between the labor organization 
and the Bank on the appropriate unit, the Tribunal shall investigate the 
facts, hold hearings if necessary, and issue a decision as to the 
appropriateness of the unit for the purposes of conducting a 
representation election for exclusive recognition and as to related 
issues submitted for consideration. The expenses for this proceeding, 
including the fees of the association and of the arbitrator, shall be 
borne equally by the labor organization and the Bank. If either the Bank 
or the labor organization should disagree with the Special Tribunal's 
decision, the party in disagreement may appeal within thirty (30) 
calendar days to the Federal Reserve System Labor Relations Panel 
referred to in Sec. 269.11, and the decision of the System Panel shall 
be final and binding on the parties.
    (c) If there is any dispute as to whether a labor organization holds 
cards signed by at least thirty percent (30%) of the employees in a unit 
claimed by a labor organization as appropriate or subsequently 
determined by the Special Tribunal as appropriate, the dispute shall be 
resolved by the Chairperson of the Special Tribunal, acting as a single 
impartial arbitrator. The expenses of such procedure, including the 
impartial arbitrator's fee, shall be borne equally by the labor 
organization and the Bank. The decision of the Chairperson of the 
Special Tribunal shall be final and binding and shall not be subject to 
appeal to the Federal Reserve System Labor Relations Panel.



Sec. 269.5  Elections.

    (a) Once there has been a final determination of the existence of an 
appropriate bargaining unit under the procedure in Sec. 269.4, and a 
showing by a labor organization that it has cards signed by at least 
thirty percent (30%) of the employees in such unit requesting a 
representation election, an election shall be ordered by the Special 
Tribunal. A labor organization shall be recognized as the exclusive 
bargaining representative of the unit if it is selected by a majority of 
the employees in the unit actually voting.
    (b) The election shall be held under the auspices of the Association 
and shall be subject to its election rules and regulations. However, if 
there should be any conflict between such rules and regulations and the 
provisions of this Policy, the latter shall prevail. The fees charged by 
the Association for its election service shall be borne equally by the 
labor organization and the Bank.
    (c) An election to determine whether a labor organization should 
continue as the exclusive bargaining representative of a particular unit 
shall be held when requested by a petition or other bona fide showing by 
at least thirty percent (30%) of the employees of that unit. Any dispute 
as to whether thirty percent (30%) of the employees requested such an 
election shall be resolved by the same procedure as that set forth in 
Sec. 269.4(b). The election shall be held under the auspices of the 
Association in the same manner described in paragraph (b) of this 
section. The recognition of a labor organization as the exclusive 
bargaining representative of a unit shall be revoked if a majority of 
the employees in the unit who actually vote signify approval of such 
revocation.

[[Page 383]]

    (d) Only one election may be held in any unit in a twelve (12) month 
period to determine whether a labor organization should become, or 
continue to be recognized as, the exclusive representative of the 
employees in that unit.
    (e) Upon receipt of a request for an election from a labor 
organization under Sec. 269.4(a), it shall be incumbent on the Bank, 
labor organization and all others to refrain from any conduct, action or 
policy that interferes with or restrains employees from making a fair 
and free choice in selecting or rejecting a bargaining representative 
consistent with the right of the Bank, labor organization or employees 
to exercise privileges of free speech in the expression of any views, 
argument or opinion, or the dissemination thereof, whether in oral, 
written, printed, graphic or visual form.
    (f) The Special Tribunal shall hear and decide any post-election 
objections of a Bank or labor organization filed with it claiming that a 
violation of paragraph (e) of this section has improperly affected the 
outcome of the election. Such objections must be filed with the Special 
Tribunal no later than five (5) business days after the date of 
election. In the event of such violation by a Bank, labor organization 
or other individuals or organizations which the Special Tribunal finds 
sufficient to have prejudiced the outcome of an election, appropriate 
remedial action shall be taken in the form of setting aside the election 
results and ordering a new election, provided, however, that an appeal 
from the order of the Special Tribunal may be taken within thirty (30) 
calendar days to the Federal Reserve System Labor Relations Panel by 
either the affected Bank or labor organization. The ruling of the System 
Panel shall be final and binding. Neither the Special Tribunal nor the 
Federal Reserve System Labor Relations Panel shall have the authority to 
direct a Bank to recognize a labor organization as the exclusive 
collective bargaining representative without a valid election being held 
in which a majority of the employees actually voting have so designated 
such labor organization.
    (g) The Special Tribunal and the Federal Reserve System Labor 
Relations Panel will adhere to any rules and regulations promulgated by 
the Board of Governors for the administration of the provisions of 
paragraphs (e) and (f) of this section.



Sec. 269.6  Unfair labor practices.

    (a) It shall be an unfair labor practice for a Bank to: (1) 
Interfere with, restrain, or coerce employees in the exercise of the 
rights guaranteed in Sec. 269.2(a); (2) dominate or interfere with the 
formation or administration of any labor organization, or to contribute 
financial or other support to it; (3) encourage or discourage membership 
in any labor organization by discrimination in regard to hire or tenure 
of employment or any term or condition of employment; (4) refuse to 
bargain collectively with the representatives of its employees subject 
to the provisions of Sec. 269.3 (b) and (c).
    (b) It shall be an unfair labor practice for a labor organization, 
its agents or representatives to: (1) Restrain or coerce employees in 
the exercise of the rights guaranteed in Sec. 269.2(a); (2) cause or 
attempt to cause a Bank to Discriminate against an employee in violation 
of paragraph (a)(3) of this section; (3) refuse to bargain collectively 
with a Bank, provided the labor organization is the exclusive 
representative of a unit of employees.
    (c) Notwithstanding anything previously stated in this section, the 
expression of any view, argument or opinion, or the dissemination 
thereof, whether in oral, written, printed, graphic or visual form, 
shall not constitute or be evidence of an unfair labor practice, if such 
expression contains no threat of reprisal or force, or promise of 
benefit.
    (d) The Federal Reserve System Labor Relations Panel will adhere to 
the rules and regulations promulgated by the Board of Governors for the 
prevention and remedy of the unfair labor practices listed herein.



Sec. 269.7  Approval of agreement and required contents.

    Any agreement entered into with a labor organization as the 
exclusive representative of employees in a unit must be approved by the 
President of the Bank or a designated officer representative. All 
agreements with labor

[[Page 384]]

organizations shall also be subject to the requirement that the 
administration of all matters covered by the agreement shall be governed 
by the provisions of applicable laws and Federal Reserve System rules 
and regulations, and the agreement shall at all times be applied subject 
to such laws and regulations.



Sec. 269.8  Grievance procedures.

    (a) Subject to the provisions of Sec. 269.3(b), an agreement 
entered into with a labor organization as the exclusive representative 
of employees in a unit may contain a grievance procedure, applicable 
only to employees in such unit and which shall be the exclusive means 
for a labor organization and/or an employee to obtain resolution of a 
grievance arising under such agreement.
    (b) Grievance procedures established by a labor agreement may also 
include provisions for arbitration of unresolved grievances by a 
tripartite panel under the Voluntary Labor Arbitration Rules of the 
Association with the impartial arbitrator selected by the Bank and labor 
organization representatives on the arbitration panel to be the 
Chairperson. In such event, arbitration shall extend only to grievances 
which involve the interpretation and application of specific provisions 
of a labor agreement and not to any other matters or to changes in or 
proposed changes in the agreement. Arbitration may only be invoked by 
labor organization on behalf of individual employees with their 
concurrence.



Sec. 269.9  Mediation of negotiation impasses.

    In the event of an impasse in negotiations between the parties for a 
collective bargaining agreement, either the labor organization or the 
Bank may request the appointment of a qualified neutral person as a 
mediator to assist the parties in attempting to resolve the impasse. The 
parties will meet promptly with the mediator, and all matters discussed, 
as well as any documents submitted, shall not be publicly divulged for 
any reason. The cost of the mediator shall be borne equally by the 
parties.



Sec. 269.10  Time for internal labor organization business, 
consultations and negotiations.

    Solicitation of memberships, dues or other internal labor 
organization business shall be conducted during the nonduty hours of the 
employees concerned. Officially requested or approved consultation 
between management executives and representatives of a labor 
organization shall, whenever practicable, be conducted on official time, 
but the President or a duly authorized officer of a Bank may require 
that negotiations with a labor organization be conducted during the 
nonduty hours of the Bank.



Sec. 269.11  Federal Reserve System Labor Relations Panel.

    There shall be established a Federal Reserve System Labor Relations 
Panel, which shall consist of three members: one member of the Board of 
Governors of the Federal Reserve System, who shall be Chairperson of the 
Panel, and two public members. Each member shall be selected by the 
Board of Governors; provided, however, that the public members shall not 
have any present or past affiliation with the Federal Reserve System. 
Initially, one of the two public members shall be appointed for a term 
of two years, and the other for a term of three years. Thereafter, each 
public member shall be appointed for a term of three years, except that 
in the case of an unexpired term of a former member, the successor shall 
be appointed to fill such unexpired term. Upon the expiration of their 
term of office, public members may continue to serve until their 
successors are appointed and have qualified. A public member may be 
removed by the Board only upon notice and hearing, and only for neglect 
of duty or malfeasance in office. The Panel shall be responsible for the 
duties assigned to it as set forth in this Policy.



Sec. 269.12  Amendment.

    This policy may be amended upon appropriate legal notice to all 
Federal Reserve Banks and labor organizations recognized, or seeking 
recognition, at any such Bank under this Policy. In no instance shall an 
amendment be applied retroactively.

[[Page 385]]



PART 269a_DEFINITIONS--Table of Contents



Sec.
269a.1 Party.
269a.2 Party in interest.
269a.3 Intervenor.
269a.4 Investigator.
269a.5 Hearing officer.

    Authority: Sec. 11, 38 Stat. 261 (12 U.S.C. 248).

    Source: 35 FR 8919, June 10, 1970, unless otherwise noted. 
Redesignated at 48 FR 32334, July 15, 1983.



Sec. 269a.1  Party.

    The term Party means any person, employee, group of employees, labor 
organization, or bank as defined in Sec. 269.2 of this chapter (a) 
filing a charge, petition, application, or rquest pursuant to these 
rules and regulations, (b) named as a party in a charge, complaint, 
petition, application, or request, or (c) whose intervention has been 
permitted or directed by the investigator, the hearing officer, or the 
panel, as the case may be, but nothing shall be construed to prevent the 
panel, or any officer designated by it, from limiting any party's 
participation in the proceedings to the extent of his interest as 
determined by the investigator, hearing officer, or panel.



Sec. 269a.2  Party in interest.

    The term party in interest means any person, employee, group of 
employees, labor organization, or bank that will be or is directly 
affected by the resolution of any charge, complaint, petition, 
application, or request presented to or being considered by the panel or 
its designated officers. Any (a) labor organization (not a charging 
party nor a charged party) attempting to organize the employees of a 
bank or that is or was recently a party to a collective bargaining 
agreement with a bank named as a party in a charge, complaint, petition, 
application, or a request, or (b) bank (not a charging party nor a 
charged party) that acts as the employer of any person named in a 
charge, complaint, petition, or request shall be deemed to be also a 
party in interest and shall be entitled to notification and service of 
all relevant procedures and documents.



Sec. 269a.3  Intervenor.

    The term intervenor means the party in a proceeding whose 
intervention has been permitted or directed by the panel or its 
designated officer.



Sec. 269a.4  Investigator.

    The term investigator means the officer designated by the panel to 
investigate and determine whether or not a complainant has established a 
prima facie case, as defined in Sec. 269b.210 of this subchapter.

[35 FR 8919, June 10, 1970. Redesignated at 48 FR 32334, July 15, 1983, 
as amended at 65 FR 2530, Jan. 18, 2000.



Sec. 269a.5  Hearing officer.

    The term hearing officer means the officer designated by the panel 
to conduct hearings pursuant to Sec. 269b.420 et seq. of this 
subchapter and whose duties and power are enumerated in Sec. 269b.442 
of this subchapter.

[35 FR 8919, June 10, 1970. Redesignated at 48 FR 32334, July 15, 1983, 
as amended at 65 FR 2530, Jan. 18, 2000.



PART 269b_CHARGES OF UNFAIR LABOR PRACTICES--Table of Contents



          Charges of Violations of Sec. 269.6 (of the Policy)

Sec.
269b.110 Charges.
269b.111 Filing of charges.
269b.112 Contents of the charge.
269b.113 Withdrawal or settlement.
269b.120 Answer to a charge.
269b.121 Contents of answer.

                        Preliminary Investigation

269b.210 Referral to National Center for Dispute Settlement.
269b.220 Priority; acceleration of proceedings.
269b.230 Assessment of costs; posting of bond.
269b.240 The investigation.

                 Appeal From the Center's Determination

269b.310 Appeal rights.
269b.320 Proceedings before the panel.

                           Formal Proceedings

269b.410 Notice of hearing.
269b.420 Designation of hearing officer.
269b.430 Contents of notice of hearing.
269b.440 Conduct of hearing.
269b.441 Rights of parties.

[[Page 386]]

269b.442 Duties and powers of the hearing officer.
269b.443 Motions before or after a hearing.
269b.444 Objection to conduct of hearing; other motions during hearing.
269b.450 Submission of hearing officer's report to the panel.

    Panel Review of Hearing Officer's Report and Recommended Decision

269b.510 Review by panel.
269b.520 Exceptions to hearing officer's report.
269b.530 Briefs in support of the hearing officer's report.
269b.540 Action by the panel.

                               Compliance

269b.610 Procedures.
269b.620 Action by panel.

                              General Rules

269b.710 Rules to be liberally construed.
269b.720 Computation of time for filing papers.
269b.730 Number of copies; form.
269b.731 Signature.
269b.740 Service of pleading and other paper; statement of service.
269b.750 Requests for appearance of witnesses and production of 
          documents.

    Authority: Sec. 11, 38 Stat. 261 (12 U.S.C. 248).

    Source: 35 FR 8920, June 10, 1970, unless otherwise noted. 
Redesignated at 48 FR 32334, July 15, 1983.

          Charges of Violations of Sec. 269.6 (of the Policy)



Sec. 269b.110  Charges.

    A charge that any bank or labor organization, or agents or 
representatives of a bank or labor organization, has engaged in or is 
engaging in any act prohibited under Sec. 269.6 of the policy or has 
failed to take any action required by Sec. 269.6 of the policy may be 
filed by any party in interest, or its representative, within 60 days 
after the alleged violations or within 60 days after the charging party 
has become or should have become aware of the alleged violation.



Sec. 269b.111  Filing of charges.

    Any charge pursuant to Sec. 269b.110 shall be in writing and 
signed. An original and three copies of such charge, together with one 
copy for each charged party named, shall be transmitted to the Secretary 
of the Federal Reserve System Labor Relations Panel, 20th Street and 
Constitution Avenue NW., Washington, DC 20551. Within 5 days after 
receipt of a properly filed charge that meets the formal requirements 
set forth in Sec. 269b.112, the Secretary will cause a copy of such 
charge to be served on each party against whom the charge is made and 
upon all other potential parties in interest.



Sec. 269b.112  Contents of the charge.

    A charge shall contain the following:
    (a) The full name, address, and telephone number of the person, 
bank, or labor organization making the charge (hereinafter referred to 
as the charging party) and of the person signing the charge who shall 
state also his relation to or his capacity with the complainant. Where 
discrimination is alleged, all known discriminatees shall be named;
    (b) The name, address, and telephone number of the bank or labor 
organization against whom the charge is made (hereinafter referred to as 
the respondent) and of any parties in interest;
    (c) A clear and concise statement of the facts constituting the 
alleged unfair labor practice, including the time and place of 
occurrence of the particular acts, and a statement of the portion or 
portions of the policy alleged to have been violated. A charge shall not 
incorporate by reference affidavits or other documents submitted in 
support of the charge;
    (d) A statement of the relief sought;
    (e) A statement of any other remedies invoked for the redress of the 
alleged violations of the policy and the results, if any, of their 
invocation. If the issue in such charge is subject to an established 
grievance procedure, the complainant must irrevocably elect, prior to 
the completion of the first applicable step of the grievance procedure, 
whether he will invoke the grievance procedure or whether he will invoke 
the unfair labor practice procedures of the panel. A charge which is 
withdrawn or rejected by the panel as defective prior to the institution 
of any formal proceedings by the panel shall not prejudice the filing of 
a grievance on the same matter, unless the parties otherwise so provide;

[[Page 387]]

    (f) A declaration by the person signing the charge, that its 
contents are true and correct to the best of his knowledge and belief, 
such declaration to be subject to applicable provisions of the Federal 
Criminal Code (18 U.S.C. 1001).



Sec. 269b.113  Withdrawal or settlement.

    A charge may be withdrawn or settlement of the matter may be reached 
without consent of the panel at any time. In connection with any such 
settlement the parties in interest shall prepare and sign a settlement 
agreement which shall record that the settlement is mutually 
satisfactory, shall stipulate any occurrences which constituted unfair 
labor practices and shall set forth the terms of the settlement.



Sec. 269b.120  Answer to a charge.

    The respondent shall file an answer to the charge with the Secretary 
of the panel within 15 days after service of the charge. Upon 
application and for good cause shown, the panel may extend the time 
within which the answer shall be filed. One copy of the answer shall be 
served on each party with proof of service furnished to the Secretary, 
and the original, which shall be signed, and four copies shall be filed 
with the Secretary.



Sec. 269b.121  Contents of answer.

    The answer shall contain:
    (a) A specific admission or denial, and where appropriate, 
explanation thereof; or if the respondent is without knowledge of the 
allegation, he shall so state and such statement shall operate as a 
denial. Admissions or denials may be to all or part of an allegation but 
shall be responsive to the substance of the allegation;
    (b) A specified, detailed statement of any affirmative defense;
    (c) A clear and concise statement of the facts and matters of law 
relied upon constituting the grounds of defense.

Any allegation of the charge not denied in the answer may be deemed 
admitted and may be so found by the panel.

                        Preliminary Investigation



Sec. 269b.210  Referral to National Center for Dispute Settlement.

    (a) Within 5 days after the answer to the charge has been or should 
have been filed, the panel may refer the matter, accompanied by a 
general or particularized request, to the National Center for Dispute 
Settlement of the American Arbitration Association (hereinafter referred 
to as the Center) to make an investigation and to determine whether the 
charging party has established a prima facie case.
    (b) For the purposes of this part, a prima facie case means a case 
where allegations of an unfair labor practice that have been presented 
give reasonable cause to believe that such practice may have occurred, 
but where evidentiary proceedings are necessary for determination of 
whether the allegations are substantiated.
    (c) The Center may use its own personnel or may hire individuals on 
a contract basis to conduct such investigations. The panel may 
consolidate or sever proceedings conducted pursuant to this part.
    (d) Any party may request the Center or other appointing authority 
to withdraw appointment of the investigator within 3 days after 
designation on the basis of previously demonstrated personal bias, 
conflict of interest, or prejudice. Such a request shall set forth in 
detail the matter alleged to constitute grounds for disqualification. 
Denial of a request by the Center or other appointing authority shall be 
substantiated in writing and transmitted to the requesting party, and 
shall be submitted to the panel together with the complete report of the 
investigator required in Sec. 269b.240(b).



Sec. 269b.220  Priority; acceleration of proceedings.

    (a) A charge of ``refusal to bargain'' or a charge that, if 
sustained, would require the setting aside of an election or the conduct 
of a new election shall be given priority.
    (b) The parties, individually or jointly, may petition the panel at 
any time to invoke immediately the formal hearing procedures set forth 
in Sec. 269b.410. They may also petition the

[[Page 388]]

panel to entertain the matter itself without prior investigation and/or 
without the formal hearing procedure set forth in Sec. 269b.410. The 
panel is empowered also on its own motion to so accelerate disposition 
of the case.
    (c) Before accelerating a case the panel may utilize whatever 
proceedings it may deem appropriate and timely to allow parties in 
interest to comment on the proposed course of action.



Sec. 269b.230  Assessment of costs; posting of bond.

    (a) The panel shall normally bear the costs of an investigation 
conducted pursuant to Sec. 269b.210, but the panel may require that the 
charging party, the respondent, and/or other parties in interest or 
intervenors, or several of them, shall bear a portion or all of the 
costs therefor. With respect to each case where an investigation is 
directed by the panel, the charging party may, in the discretion of the 
panel, be required to file a cost bond, or equivalent security, of $500, 
unless the panel fixes a different amount.
    (b) Among the circumstances that may be the basis for payment of 
costs by other than the panel are cases where a clearly spurious charge 
has been filed or where the filing of a charge was necessary to redress 
the respondent's flagrant misconduct.
    (c) The bond or equivalent security shall be to secure the payment 
of the costs of the investigation as may be assessed by the panel. In 
those cases where the panel does not assess such costs, the bond posted 
and the cost thereof shall be reimbursed to the charging party. The 
panel may require also the posting of a cost bond by the respondent or 
other party to the proceeding, who shall be entitled to reimbursement of 
the cost of the bond in the event that no costs of investigation are 
assessed upon such party by the panel.
    (d) Notification of the panel's decision that a bond shall be 
required shall be effected by registered mail, such notice to advise of 
the amount of the bond required and the period by which it shall be 
posted.
    (e) Absent good cause shown, failure of a party to file timely such 
cost bond or equivalent security may be ground for dismissal or other 
administrative sanctions deemed appropriate by the Panel.



Sec. 269b.240  The investigation.

    (a) The purpose of the investigation is (1) to ascertain, analyze, 
and apply the relevant facts in order to determine whether or not formal 
proceedings are warranted and (2) to assist, by mediation and other 
appropriate means, the parties to reach a mutually satisfactory 
resolution of the issues as an alternative to the hearing process. In so 
doing, the investigator is not limited to the allegations set forth in 
the charge and may advise the charging party to amend his charge. In 
addition, he should adduce facts pertaining to the remedy as well as to 
the alleged violation. Investigation should also adduce facts pertaining 
to the jurisdiction of the panel and the timeliness of the charge. If 
the charge is untimely on its face, no investigation shall be required 
except to determine whether or not attending circumstances warrant 
waiving the time requirements, set forth in Sec. 269b.110. The 
investigator may request the appearance of parties and witnesses, may 
cause, the production of relevant document, and may take or cause 
depositions to be taken.
    (b) When the investigation has been completed, the Center shall 
issue a written determination whether the charging party has established 
a prima facie case, whether the charge was timely filed, and whether the 
charge is within the jurisdiction of the panel, and reasons therefor. 
This determination shall be served upon the panel and all parties. The 
panel shall receive also the complete report of the investigator.

                 Appeal From the Center's Determination



Sec. 269b.310  Appeal rights.

    Where the investigator has found that a prima facie case does not 
exist, a party, including an intervenor but excluding the respondent or 
other parties having the same interest as the respondent, within 5 days 
after receiving

[[Page 389]]

the Center's determination may petition the panel to set aside the 
determination and to cause formal proceedings, set forth in Sec. 
269b.410, to be invoked. The panel may grant such petition only on 
grounds that the Center or its agents were arbitrary, capricious, or 
acted contrary to law or the policy, or that the investigator's 
determination is clearly erroneous. The filing requirements for such a 
petition shall be the same as that for the filing of a charge, as set 
forth in Sec. 269b.111.



Sec. 269b.320  Proceedings before the panel.

    The panel shall issue its decision within 15 days after the receipt 
of the petition provided for in Sec. 269b.310 or by the end of that 
period shall announce that it will require briefs by the parties. Such 
announcement shall specify the requirements as to contents of the 
briefs, and the time for submission, which shall vary to meet the 
circumstances of the matter appealed. The panel, at such time, may also 
require oral argument or the production of evidence or may so order oral 
argument and/or the production of evidence after examination of the 
briefs. The panel shall issue its final decision within 20 days after 
briefs have been filed, evidence has been produced, or oral argument has 
been conducted.

                           Formal Proceedings



Sec. 269b.410  Notice of hearing.

    If formal proceedings are found to be needed under the above 
procedures, and if no satisfactory settlement has been reached within 5 
days after finding that a prima facie case exists, the Secretary of the 
panel, unless there is cause for granting an extension of time, shall 
issue and cause to be served upon the parties a notice of hearing. The 
panel shall appoint, pursuant to Sec. 269b.420, a hearing officer to 
hold a hearing and issue a report to the panel containing findings of 
fact, conclusions of law, and recommendations including, where 
appropriate, remedial action to be taken and notices to be posted. The 
Secretary shall furnish to the hearing officer the investigator's report 
and all other relevant information in the panel's possession.



Sec. 269b.420  Designation of hearing officer.

    (a) The panel, absent special circumstances, shall employ the center 
to select the hearing officer to conduct the hearing at a site most 
convenient to the parties and witnesses. The individual who performed 
the investigation, pursuant to Sec. 269b.210, shall be barred from 
acting as a hearing officer on the same matter, unless all parties in 
interest agree to his participation. The selection of the hearing 
officer, to the extent practicable, shall be done with the concurrence 
of the parties.
    (b) Any party may request the hearing officer, at any time following 
his designation and before the filing of his decision, to withdraw on 
grounds of previously demonstrated personal bias, conflict of interest, 
or prejudice by filing with him promptly upon the discovery of the 
alleged facts a timely affidavit setting forth in detail the matters 
alleged to constitute grounds for disqualification. If, in the opinion 
of the hearing officer, such affidavit is filed with due diligence and 
is sufficient on its face, he shall forthwith disqualify himself and 
withdraw from the proceeding. If he does not so withdraw, he shall so 
rule upon the record, stating the grounds for his ruling and proceed 
with the hearing, or, if the hearing has closed, he shall proceed with 
the issuance of his decision, and his ruling shall be subject to the 
same review by the panel that is given to the rest of his decision.
    (c) The costs of conducting the hearing and of the hearing officer 
shall be borne by the panel. Witness fees and expenses shall be paid by 
the party at whose instance the witnesses appear.



Sec. 269b.430  Contents of notice of hearing.

    The notice of hearing shall include:
    (a) A copy of the charge;
    (b) A statement of the time of the hearing which shall be not less 
than 10 days after service of the notice of hearing, except in 
extraordinary circumstances. All charges involving a ``refusal to 
bargain'' allegation and all charges, if sustained, that would require 
the setting aside of an election, or the conducting of a new election 
shall be given first priority;

[[Page 390]]

    (c) A statement of the place and nature of hearing;
    (d) A statement of the legal authority and jurisdiction under which 
the hearing is to be held;
    (e) A reference to the particular section of the policy and rules 
and regulations of this chapter involved;
    (f) A copy of the determination, if any, made causing the invocation 
of these formal proceedings.



Sec. 269b.440  Conduct of hearing.

    (a) Hearing shall be public unless otherwise ordered by the hearing 
officer or the panel. An official reporter shall make the only official 
transcript of such proceedings.
    (b) Copies of the official transcript will not be provided to the 
parties, but may be purchased by arrangement with the official reporter 
or with such costs as the panel may otherwise assess, or may be examined 
in the offices of the panel and/or the hearing officer subject to such 
conditions as the panel may prescribe.
    (c) A charging party in asserting that an unfair labor practice has 
been committed within the meaning of the policy, shall have the burden 
of proving the allegations of the charge, or the amended charge, by a 
preponderance of the evidence.
    (d) The parties shall not be bound by the technical rules of 
evidence, but the hearing officer, may, in his discretion, exclude any 
evidence or offer of proof if he finds that its probative value is 
substantially outweighed by the risk that its admission will either 
necessitate undue consumption of time or create substantial danger of 
undue prejudice or confusion.



Sec. 269b.441  Rights of parties.

    (a) Any party shall have the right to appear at such hearing in 
person, by counsel, or by other representative, to call, examine, and 
cross-examine witnesses as may be required for a full and true 
disclosure of the facts, and to introduce into the record documentary or 
other relevant evidence, except that the participation of any party 
shall be limited to the extent permitted by the hearing officer. Five 
copies of such documentary evidence shall be submitted unless the 
hearing officer permits a reduced number for good cause shown.
    (b) Any party shall be entitled, upon request, to a reasonable 
period at the close of the hearing for oral argument, which shall be 
included in the stenographic report of the hearing.
    (c) Any party shall be entitled to file a brief to the hearing 
officer within 10 days after the close of the hearing, but no reply 
brief may be filed except upon special permission of the hearing 
officer. A party filing a brief must file the original and one copy with 
the hearing officer along with proof of service of a copy of such brief 
to all parties. Requests for extension of time to file briefs must be 
made to the hearing officer who must receive the request at least 3 days 
prior to the expiration of time fixed for filing of briefs and notice of 
the request shall be served simultaneously on all other parties, and 
proof of service shall be furnished. If a request for extension of time 
is based on the need for a copy of the transcript prior to filing a 
brief, such request must be made to the hearing officer before the 
hearing is closed and must be ruled on prior to the close of the 
hearing.



Sec. 269b.442  Duties and powers of the hearing officer.

    The hearing officer shall inquire fully into the facts as to whether 
the respondent has engaged or is engaging in an unfair labor practice as 
set forth in the charge or the amended charge. The hearing officer shall 
have authority, with respect to cases assigned to him, between the time 
he is designated and transfer of the case to the panel, subject to the 
rules and regulations in this subchapter, to:
    (a) Grant requests for attendance of witnesses and production of 
documents;
    (b) Rule upon petitions to quash requests made pursuant to paragraph 
(a) of this section;
    (c) Call, examine, and cross-examine parties and witnesses as may be 
required for a full and true disclosure of the facts and to introduce 
into the record documentary or other evidence;
    (d) Rule upon offers of proof and receive relevant evidence;

[[Page 391]]

    (e) Take or cause depositions to be taken whenever the ends of 
justice would be served thereby;
    (f) Limit lines of questioning or testimony which are repetitive, 
cumulative, or irrelevant;
    (g) Regulate the course of the hearing and, if appropriate or 
necessary, exclude persons or counsel from the hearing for contemptuous 
conduct and strike all related testimony of witnesses refusing to answer 
any proper question;
    (h) Hold such prehearing conferences as may be necessary to expedite 
proceedings and hold such other conferences for the settlement or 
simplification of the issues by consent of the parties or upon his own 
motion;
    (i) Dispose of procedural requests, motions, or similar matters 
which shall be made part of the record of the proceeding, including 
motions referred to the hearing officer by the panel, and motions to 
amend pleadings, also to recommend dismissal of cases or portions 
thereof, and to order hearings reopened or, upon motion, consolidated 
prior to issuance of the hearing officer's report and recommendations;
    (j) Request the parties at any time during the hearing to state 
their respective positions concerning any issue in the case or theory in 
support thereof;
    (k) Require the parties, if necessary, to file written briefs in 
support of their positions;
    (l) Take any other action necessary under the foregoing and 
authorized by the rules and regulations in this subchapter.

In the event the hearing officer designated to conduct the hearing 
becomes unavailable, the panel may designate another hearing officer for 
the purpose of further hearing or issuance of a report and 
recommendation on the record as made, or both.



Sec. 269b.443  Motions before or after a hearing.

    All motions (including motions for intervention), other than those 
made during a hearing, shall be made in writing to the Secretary of the 
panel, shall briefly state the relief sought, shall set forth the 
grounds for such motion, and shall be accompanied 3 days thereafter by 
proof of service on all parties. Answering statements, if any, must be 
served on all parties and the original thereof, together with two copies 
and statement of service, shall be filed with the Secretary within 5 
days after service of the moving papers, unless the Secretary directs 
otherwise. Motions may be referred to the hearing officer whose ruling 
shall be made upon the record or the motion may be stayed until such 
time as the panel reviews the hearing officer's report and 
recommendations.



Sec. 269b.444  Objection to conduct of hearing; other motions 
during hearing.

    Any objection with respect to the conduct of the hearing, including 
any objection to the introduction of evidence, or any other motion 
during the course of the hearing, including a request to allow 
intervention, may be stated orally or in writing accompanied by a short 
statement of the grounds for such objection, and included in the record. 
No such objection shall be deemed waived by further participation in the 
hearing and such objection shall not stay the conduct of the hearing. 
Automatic exceptions will be allowed to all adverse rulings and shall be 
considered by the panel upon its review of the hearing officer's report 
and recommendations, if exception to the ruling is included in a 
statement of exceptions submitted to the panel after the close of the 
hearing, subject to the requirements of Sec. 269b.520.



Sec. 269b.450  Submission of hearing officer's report to the panel.

    After the close of the hearing, and the receipt of briefs, if any, 
the hearing officer shall prepare a report and recommendations, 
containing findings of fact, conclusions of law, including judgments as 
to the credibility of witnesses where appropriate, and the reasons or 
basis therefor, and recommendations as to the disposition of the case, 
and, where appropriate, including the remedial action and notices to be 
posted. After he has caused his report and recommendations to be served 
promptly on all parties to the proceeding, he shall transfer the case

[[Page 392]]

to the panel including his report and recommendations and the complete 
record. Such submission shall be made within 20 days after the close of 
the hearing and the receipt of briefs, if any, unless otherwise extended 
by the panel. The record shall include the charge, notice of hearing, 
service sheet, motions, rulings, orders, official transcript of the 
hearing, stipulations, objections, depositions, documentary evidence, 
exhibits, and any briefs or other documents submitted to the parties.

    Panel Review of Hearing Officer's Report and Recommended Decision



Sec. 269b.510  Review by panel.

    The panel shall review the report and recommendations of each 
hearing officer, the record of the hearing, and such other documents as 
enumerated in Sec. 269b.450, whether or not any party files an appeal, 
unless the parties file with the panel a settlement agreement within 10 
days after service of the hearing officer's report upon them. In the 
course of such review, the panel may require oral argument or written 
briefs on any relevant issue within such time limits as the panel may 
prescribe, and may reopen the record in any case and receive further 
evidence.



Sec. 269b.520  Exceptions to hearing officer's report.

    (a) Any party may file with the panel exceptions to the hearing 
officer's report and recommendations, and any ruling contained therein, 
if made within 10 days after service of the report and recommendations. 
The Panel may, for good cause shown, extend the time for filing such 
exceptions upon written request, with copies served simultaneously on 
the other parties, received not later than 3 days before the date 
exceptions are due. Requests for oral argument will not be considered 
unless filed with exceptions.
    (b) Any exception to a ruling, finding, conclusion, or 
recommendation which is not specifically urged shall be deemed to have 
been waived, although the panel may on its own motion rule upon any 
matter in the report and recommendations.
    (c) Any exception which fails to comply with the following 
requirements may be disregarded:
    (1) The exceptions shall set forth specifically the questions of 
procedure, fact, law, or policy to which exceptions are taken;
    (2) The exceptions shall identify the part of the hearing officer's 
report to which objection is made;
    (3) The exceptions shall designate by precise citation of page the 
portions of the record relied on, shall state the grounds for the 
exceptions, and shall include the citation of authorities unless set 
forth in a supporting brief.
    (d) Any brief in support of exceptions shall contain no matter not 
included within the scope of the exceptions and shall contain in the 
order indicated, the following:
    (1) A concise statement of the case containing all that is material 
to the consideration of the questions presented;
    (2) A specification of the questions involved and to be argued;
    (3) The argument, presenting clearly the points of fact and law 
relied on in support of the position taken on each question, with 
specific page reference to the transcript and the legal or other 
material relied on.
    (e) Answering briefs to the exceptions, and cross-exceptions and 
supporting briefs will not be permitted without special leave of the 
panel. Requests for oral argument will not be considered unless 
accompanying such petition for special leave.
    (f) Five copies of exceptions and briefs must be filed with the 
panel along with a statement of service of copies of the exceptions and 
supporting briefs upon all parties.



Sec. 269b.530  Briefs in support of the hearing officer's report.

    Any party may file a brief in support of the hearing officer's 
report and recommendations subject to the same time limits and rules 
pertaining to filing exceptions and briefs in support thereof, as set 
forth in Sec. 269b.520.



Sec. 269b.540  Action by the panel.

    After considering the hearing officer's report and recommendations, 
the

[[Page 393]]

record, any other documents, any exceptions filed, and any oral argument 
permitted, the panel shall issue its written decision. Upon finding that 
the respondent is engaging in or has engaged in an unfair labor 
practice, the panel shall order the respondent to cease and desist from 
such conduct and may require the respondent to take such affirmative 
corrective action as the panel deems appropriate to effectuate the 
Policy. Such action by the panel may include, but shall not be limited 
to, orders to provide back pay, provide reinstatement, set aside an 
election, bargain, and award recognition. Upon finding no violation of 
the policy, the panel shall dismiss the case. The panel's decision and 
order setting forth the remedial action, if any, required shall be 
conspicuously posted by the parties.

                               Compliance



Sec. 269b.610  Procedures.

    Where remedial action is ordered or provided for in a settlement 
agreement, a report to the panel that such action has been taken and 
that compliance with the decision and orders of the panel has been 
effected shall be submitted within the period of time specified in the 
panel's decision. The panel is empowered to utilize whatever 
administrative procedures it deems necessary to ascertain compliance.



Sec. 269b.620  Action by panel.

    In any case where it is found, after a hearing, that the respondent 
has failed to comply with the final decision and order of the panel, the 
panel shall be empowered to take whatever action may be appropriate and 
shall expect the full cooperation of the Board of Governors of the 
Federal Reserve System in obtaining such compliance. Among the actions 
that may be taken by the panel against a noncomplying respondent labor 
organization, after a show cause hearing, may be suspension of that 
labor organization's checkoff privileges or recognition as exclusive 
bargaining representative for such period of time as determined by the 
panel.

                              General Rules



Sec. 269b.710  Rules to be liberally construed.

    (a) Whenever the panel finds that unusual circumstances or good 
cause exist and that strict compliance with the terms of the rules and 
regulations in this subchapter will work an injustice or unfairness, it 
shall construe the rules and regulations in this subchapter liberally to 
prevent injustices and to effectuate the purposes of the policy.
    (b) When an act is required or allowed to be done at or within a 
specified time, the panel may at any time, in its discretion, order the 
period altered where it shall be manifest that strict adherence will 
work surprise or injustice or interfere with the proper effectuation of 
the policy.



Sec. 269b.720  Computation of time for filing papers.

    In computing any period of time prescribed by or allowed by the 
panel, the day of the act, event, or default after which the designated 
period of time begins to run, shall not be included. The last day of the 
period so computed is to be included, unless it is a Saturday, Sunday, 
or the applicable local legal holiday in which event the period shall 
run until the end of the next day which is neither a Saturday, Sunday, 
or legal holiday. When the period of time prescribed, or allowed, is 
seven days or less, intermediate Saturdays, Sundays, and legal holidays 
shall be excluded from the computations. When the rules and regulations 
in this subchapter require the filing of any paper, such document must 
be received by the panel or the officer or agent designated by it to 
receive such matter before the close of business of the last day of the 
time limit, if any, for such filing or extension of the time that may 
have been granted.



Sec. 269b.730  Number of copies; form.

    Except as otherwise provided in the regulations in this subchapter, 
any documents or papers shall be filed with four copies in addition to 
the original. All matters filed shall be printed, typed, or otherwise 
legibly duplicated; carbon copies of typewritten matter

[[Page 394]]

will be accepted if they are clearly legible.



Sec. 269b.731  Signature.

    The original of each document filed shall be signed by the party or 
by an attorney or representative of record for the party, or by an 
officer of the party and shall contain the address and telephone number 
of the person signing it.



Sec. 269b.740  Service of pleading and other paper; statement of service.

    (a) Method of service. Notices of hearings, decisions, orders, and 
other papers may be served personally or by registered or certified mail 
or by telegraph.
    (b) Upon whom served. Unless otherwise provided in the rules and 
regulations in this subchapter, all papers except complaints, petitions, 
and papers relating to requests for appearance or production of 
documents, shall be served upon all counsel of record and upon parties 
not represented by counsel or by their agents designated by them or by 
law and upon the panel, or its designated officers or agents, where 
appropriate. Service upon such counsel or representative shall 
constitute service upon the party, but a copy also shall be transmitted 
to the party.
    (c) Proof of service. The party or person serving the papers or 
process shall submit simultaneously to the panel or its designated 
representative, or the individual conducting the proceeding, a written 
statement of such service. Failure to file a statement of service shall 
not affect the validity of the service. Proof of service, except where 
otherwise provided, shall be required only if subsequent to the receipt 
of a statement of service a question is raised with respect to proper 
service.



Sec. 269b.750  Requests for appearance of witnesses and production
of documents.

    Parties may request appearance of witnesses and production of 
documents by filing application therefor, depending upon the stage of 
the proceedings at which the request is made, with the officer 
conducting the investigation or hearing, or with the panel. Such 
application shall name and identify the witnesses or documents sought 
and shall briefly state the need for such appearance or production. The 
officer with whom such request is filed shall rule upon each such 
request and the record of the proceeding shall contain a record of that 
ruling and the basis therefor. The record shall also contain a statement 
of reasons for any request for the appearance of witnesses or production 
of documents initiated by a presiding officer.

[[Page 395]]



               SUBCHAPTER B_FEDERAL OPEN MARKET COMMITTEE





PART 270_OPEN MARKET OPERATIONS OF FEDERAL RESERVE BANKS--
Table of Contents



 Regulations Relating to Open Market Operations of Federal Reserve Banks

Sec.
270.1 Authority.
270.2 Definitions.
270.3 Governing principles.
270.4 Transactions in obligations.

    Authority: Sec. 8, 48 Stat. 168, as amended (12 U.S.C. 263).

    Source: 38 FR 2753, Jan. 30, 1973, unless otherwise noted.

 Regulations Relating to Open Market Operations of Federal Reserve Banks



Sec. 270.1  Authority.

    This part is issued by the Federal Open Market Committee (the 
``Committee'') pursuant to authority conferred upon it by sections 12A 
and 14 of the Federal Reserve Act (12 U.S.C. 263, 355).



Sec. 270.2  Definitions.

    (a) The term obligations means Government securities, U.S. agency 
securities, bankers' acceptances, bills of exchange, cable transfers, 
bonds, notes, warrants, debentures, and other obligations that Federal 
Reserve banks are authorized by law to purchase and sell.
    (b) The term Government securities means direct obligations of the 
United States (i.e., U.S. bonds, notes, certificates of indebtedness, 
and Treasury bills) and obligations fully guaranteed as to principal and 
interest by the United States.
    (c) The term U.S. agency securities means obligations that are 
direct obligations of, or are fully guaranteed as to principal and 
interest by, any agency of the United States.
    (d) The term System Open Market Account means the obligations 
acquired pursuant to authorizations and directives issued by the 
Committee and held on behalf of all Federal Reserve banks.



Sec. 270.3  Governing principles.

    As required by section 12A of the Federal Reserve Act, the time, 
character, and volume of all purchases and sales of obligations in the 
open market by Federal Reserve banks are governed with a view to 
accommodating commerce and business and with regard to their bearing 
upon the general credit situation of the country.



Sec. 270.4  Transactions in obligations.

    (a) Each Federal Reserve bank shall engage in open market operations 
under section 14 of the Federal Reserve Act only in accordance with this 
part and with the authorizations and directives issued by the Committee 
from time to time, and no Reserve bank shall decline to engage in open 
market operations as directed by the Committee.
    (b) Transactions for the System Open Market Account shall be 
executed by a Federal Reserve bank selected by the Committee. The 
participations of the several Federal Reserve banks in such account and 
in the profits and losses on transactions for the account shall be 
allocated in accordance with principles determined by the Committee from 
time to time.
    (c) In accordance with such limitations, terms, and conditions as 
are prescribed by law and in authorizations and directives issued by the 
Committee, the Reserve bank selected by the Committee is authorized and 
directed--
    (1) To buy and sell Government securities and U.S. agency securities 
in the open market for the System Open Market Account, and to exchange 
maturing securities with the issuer;
    (2) To buy and sell banker's acceptances in the open market for its 
own account;
    (3) To buy Government securities, U.S. agency securities, and 
banker's acceptances of the kinds described above, under agreements for 
repurchase of such obligations, in the open market for its own account; 
and
    (4) To buy and sell foreign currencies in the form of cable 
transfers in the

[[Page 396]]

open market for the System Open Market Account and to maintain for such 
account reciprocal currency arrangements with foreign banks among those 
designated by the Board of Governors of the Federal Reserve System under 
Sec. 214.5 of this chapter (Regulation N).
    (d) The Federal Reserve banks are authorized and directed to engage 
in such other operations as the Committee may from time to time 
determine to be reasonably necessary to the effective conduct of open 
market operations and the effectuation of open market policies.

[38 FR 2753, Jan. 30, 1973, as amended at 39 FR 11873, Apr. 1, 1974; 48 
FR 32336, July 15, 1983]



PART 271_RULES REGARDING AVAILABILITY OF INFORMATION--Table of Contents



Sec.
271.1 Authority and purpose.
271.2 Definitions.
271.3 Published information.
271.4 Records available for public inspection and copying.
271.5 Records available to the public on request.
271.6 Processing requests.
271.7 Exemptions from disclosure.
271.8 Subpoenas.
271.9 Fee schedules; waiver of fees.

    Authority: 5 U.S.C. 552; 12 U.S.C. 263.

    Source: 62 FR 61218, Nov. 17, 1997, unless otherwise noted.



Sec. 271.1  Authority and purpose.

    (a) Authority. This part is issued by the Federal Open Market 
Committee (the Committee) pursuant to the Freedom of Information Act, 5 
U.S.C. 552, and also pursuant to the Committee's authority under section 
12A of the Federal Reserve Act, 12 U.S.C. 263, to issue regulations 
governing the conduct of its business.
    (b) Purpose. This part sets forth the categories of information made 
available to the public and the procedures for obtaining documents and 
records.



Sec. 271.2  Definitions.

    (a) Board means the Board of Governors of the Federal Reserve System 
established by the Federal Reserve Act of 1913 (38 Stat. 251).
    (b) Commercial use request refers to a request from or on behalf of 
one who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person on 
whose behalf the request is made.
    (c) Direct costs mean those expenditures that the Committee actually 
incurs in searching for, reviewing, and duplicating documents in 
response to a request made under Sec. 271.5.
    (d) Duplication refers to the process of making a copy of a document 
in response to a request for disclosure of records or for inspection of 
original records that contain exempt material or that otherwise cannot 
be inspected directly. Among others, such copies may take the form of 
paper, microform, audiovisual materials, or machine-readable 
documentation (e.g., magnetic tape or disk).
    (e) Educational institution refers to a preschool, a public or 
private elementary or secondary school, or an institution of 
undergraduate higher education, graduate higher education, professional 
education, or an institution of vocational education that operates a 
program of scholarly research.
    (f) Federal Reserve Bank means one of the district Banks authorized 
by the Federal Reserve Act, 12 U.S.C. 222, including any branch of any 
such Bank.
    (g) Information of the Committee means all information coming into 
the possession of the Committee or of any member thereof or of any 
officer, employee, or agent of the Committee, the Board, or any Federal 
Reserve Bank, in the performance of duties for, or pursuant to the 
direction of, the Committee.
    (h) Noncommercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis (as that term is used in 
this section) and which is operated solely for the purpose of conducting 
scientific research, the results of which are not intended to promote 
any particular product or industry.
    (i) Records of the Committee includes rules, statements, decisions, 
minutes, memoranda, letters, reports, transcripts, accounts, charts, and 
other written material, as well as any materials in machine readable 
form that

[[Page 397]]

constitute a part of the Committee's official files.
    (j) Representative of the news media refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public.
    (1) The term ``news'' means information about current events or that 
would be of current interest to the public.
    (2) Examples of news media entities include, but are not limited to, 
television or radio stations broadcasting to the public at large, and 
publishers of newspapers and other periodicals (but only in those 
instances when they can qualify as disseminators of ``news'') who make 
their products available for purchase or subscription by the general 
public.
    (3) ``Freelance'' journalists may be regarded as working for a news 
organization if they can demonstrate a solid basis for expecting 
publication through that organization, even though not actually employed 
by it.
    (k)(1) Review refers to the process of examining documents, located 
in response to a request for access, to determine whether any portion of 
a document is exempt information. It includes doing all that is 
necessary to excise the documents and otherwise to prepare them for 
release.
    (2) Review does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (l)(1) Search means a reasonable search, by manual or automated 
means, of the Committee's official files and any other files containing 
records of the Committee as seem reasonably likely in the particular 
circumstances to contain documents of the kind requested. For purposes 
of computing fees under Sec. 271.9, search time includes all time spent 
looking for material that is responsive to a request, including line-by-
line identification of material within documents. Such activity is 
distinct from ``review'' of material to determine whether the material 
is exempt from disclosure.
    (2) Search does not mean or include research, creation of any 
document, or extensive modification of an existing program or system 
that would significantly interfere with the operation of the Committee's 
automated information system.



Sec. 271.3  Published information.

    (a) Federal Register. The Committee publishes in the Federal 
Register, in addition to this part:
    (1) A description of its organization;
    (2) Statements of the general course and method by which its 
functions are channeled and determined;
    (3) Rules of procedure;
    (4) Substantive rules of general applicability, and statements of 
general policy and interpretations of general applicability formulated 
and adopted by the Committee;
    (5) Every amendment, revision, or repeal of the foregoing; and
    (6) General notices of proposed rulemaking.
    (b) Annual Report to Congress. Each annual report made to Congress 
by the Board includes a complete record of the actions taken by the 
Committee during the preceding year upon all matters of policy relating 
to open market operations, showing the reasons underlying the actions, 
and the votes taken.
    (c) Other published information. From time to time, other 
information relating to open market operations of the Federal Reserve 
Banks is published in the Federal Reserve Bulletin, in the Board's 
annual report to Congress, and in announcements and statements released 
to the press. Copies of issues of the Bulletin and of annual reports of 
the Board may be obtained from the Publications Services of the Federal 
Reserve Board, 20th Street and Constitution Avenue, N.W., Washington, 
D.C. 20551 (pedestrian entrance is on C Street, N.W.). Subscription or 
other charges may apply.

[62 FR 61218, Nov. 17, 1997, as amended at 70 FR 7840, Feb. 16, 2005]



Sec. 271.4  Records available for public inspection and copying.

    (a) Types of records made available. Unless they were published 
promptly and made available for sale or without charge, certain records 
shall be made available for inspection and copying at the Board's 
Freedom of Information Office pursuant to 5 U.S.C. 552(a)(2).

[[Page 398]]

    (b) Reading room procedures. (1) Information available under this 
section is available for inspection and copying, from 9:00 a.m. to 5:00 
p.m. weekdays, at the Freedom of Information Office of the Board of 
Governors of the Federal Reserve System, 20th Street and Constitution 
Avenue, N.W., Washington, D.C. 20551 (the pedestrian entrance is on C 
Street, N.W.).
    (2) The Committee may determine that certain classes of publicly 
available filings shall be made available for inspection and copying 
only at the Federal Reserve Bank where those records are maintained.
    (c) Electronic records. Information available under this section 
that was created on or after November 1, 1996, shall also be available 
on the Board's Web site, found at http://www.federalreserve.gov.
    (d) Privacy protection. The Committee may delete identifying details 
from any record to prevent a clearly unwarranted invasion of personal 
privacy.

[62 FR 61218, Nov. 17, 1997, as amended at 70 FR 7840, Feb. 16, 2005]



Sec. 271.5  Records available to the public on request.

    (a) Types of records made available. All records of the Committee 
that are not available under Sec. Sec. 271.3 and 271.4 shall be made 
available upon request, pursuant to the procedures in this section and 
the exceptions in Sec. 271.7.
    (b) Procedures for requesting records. (1) A request for 
identifiable records shall reasonably describe the records in a way that 
enables the Committee's staff to identify and produce the records with 
reasonable effort and without unduly burdening or significantly 
interfering with any of the Committee's operations.
    (2) The request shall be submitted in writing to the Secretary of 
the Committee, Federal Open Market Committee, 20th & C Street, N.W., 
Washington, D.C. 20551; or sent by facsimile to the Secretary of the 
Committee, (202) 452-2921. The request shall be clearly marked FREEDOM 
OF INFORMATION ACT REQUEST.
    (c) Contents of request. The request shall contain the following 
information:
    (1) The name and address of the requester, and the telephone number 
at which the requester can be reached during normal business hours;
    (2) Whether the requested information is intended for commercial 
use, and whether the requester represents an educational or 
noncommercial scientific institution, or news media;
    (3) A statement agreeing to pay the applicable fees, or a statement 
identifying any fee limitation desired, or a request for a waiver or 
reduction of fees that satisfies Sec. 271.9(f).
    (d) Defective requests. The Committee need not accept or process a 
request that does not reasonably describe the records requested or that 
does not otherwise comply with the requirements of this section. The 
Committee may return a defective request, specifying the deficiency. The 
requester may submit a corrected request, which will be treated as a new 
request.



Sec. 271.6  Processing requests.

    (a) Receipt of requests. The date of receipt for any request, 
including one that is addressed incorrectly or that is referred to the 
Committee by another agency or by a Federal Reserve Bank, is the date 
the Secretary of the Committee actually receives the request.
    (b) Priority of responses. The Committee shall normally process 
requests in the order they are received. However, in the Secretary's 
discretion, or upon a court order in a matter to which the Committee is 
a party, a particular request may be processed out of turn.
    (c) Expedited processing. Where a person requesting expedited access 
to records has demonstrated a compelling need for the records, or where 
the Committee has determined to expedite the response, the Committee 
shall process the request as soon as practicable.
    (1) To demonstrate a compelling need for expedited processing, the 
requester shall provide a certified statement, a sample of which may be 
obtained from the Board's Freedom of Information Office. The statement, 
certified to be true and correct to the best of the requester's 
knowledge and belief, shall demonstrate that:
    (i) The failure to obtain the records on an expedited basis could 
reasonably

[[Page 399]]

be expected to pose an imminent threat to the life or physical safety of 
an individual; or
    (ii) The requester is a representative of the news media, as defined 
in Sec. 271.2, and there is urgency to inform the public concerning 
actual or alleged Committee activity.
    (2) In response to a request for expedited processing, the Secretary 
of the Committee shall notify a requester of the determination within 
ten working days of receipt of the request. In exceptional situations, 
the Secretary of the Committee has the discretion to waive the formality 
of certification. If the Secretary of the Committee denies a request for 
expedited processing, the requester may file an appeal pursuant to the 
procedures set forth in paragraph (i) of this section, and the Committee 
shall respond to the appeal within ten working days after the appeal was 
received by the Committee.
    (d) Time limits. The time for response to requests shall be 20 
working days, except:
    (1) In the case of expedited treatment under paragraph (c) of this 
section;
    (2) Where the running of such time is suspended for payment of fees 
pursuant to Sec. 271.9(b)(2);
    (3) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B). 
In such circumstances, the time limit may be extended for a period of 
time not to exceed:
    (i) 10 working days as provided by written notice to the requester, 
setting forth the reasons for the extension and the date on which a 
determination is expected to be dispatched; or
    (ii) Such alternative time period as mutually agreed to by the 
Secretary of the Committee and the requester when the Secretary of the 
Committee notifies the requester that the request cannot be processed in 
the specified time limit.
    (e) Response to request. In response to a request that satisfies 
Sec. 271.5, an appropriate search shall be conducted of records of the 
Committee in existence on the date of receipt of the request, and a 
review made of any responsive information located. The Secretary shall 
notify the requester of:
    (1) The Committee's determination of the request;
    (2) The reasons for the determination;
    (3) The amount of information withheld;
    (4) The right of the requester to appeal to the Committee any denial 
or partial denial, as specified in paragraph (i) of this section; and
    (5) In the case of a denial of a request, the name and title or 
position of the person responsible for the denial.
    (f) Referral to another agency. To the extent a request covers 
documents that were created by, obtained from, or classified by another 
agency, the Committee may refer the request to that agency for a 
response and inform the requester promptly of the referral.
    (g) Providing responsive records. (1) Copies of requested records 
shall be sent to the requester by regular U.S. mail to the address 
indicated in the request, unless the requester elects to take delivery 
of the documents at the Board's Freedom of Information Office or makes 
other acceptable arrangements, or the Committee deems it appropriate to 
send the documents by another means.
    (2) The Committee shall provide a copy of the record in any form or 
format requested if the record is readily reproducible by the Committee 
in that form or format, but the Committee need not provide more than one 
copy of any record to a requester.
    (h) Appeal of denial of request. Any person denied access to 
Committee records requested under Sec. 271.5 may file a written appeal 
with the Committee, as follows:
    (1) The appeal shall prominently display the phrase FREEDOM OF 
INFORMATION ACT APPEAL on the first page, and shall be addressed to the 
Secretary of the Committee, Federal Open Market Committee, 20th and C 
Street, N.W., Washington, D.C. 20551; or sent by facsimile to the 
Secretary of the Committee, (202) 452-2921.
    (2) An initial request for records may not be combined in the same 
letter with an appeal.
    (3) The Committee, or such member of the Committee as is delegated 
the authority, shall make a determination regarding any appeal within 20 
working days of actual receipt of the appeal by the Secretary, and the 
determination

[[Page 400]]

letter shall notify the appealing party of the right to seek judicial 
review of such denial.



Sec. 271.7  Exemptions from disclosure.

    (a) Types of records exempt from disclosure. Pursuant to 5 U.S.C. 
552(b), the following records of the Committee are exempt from 
disclosure under this part:
    (1) National defense. Any information that is specifically 
authorized under criteria established by an Executive Order to be kept 
secret in the interest of national defense or foreign policy and is in 
fact properly classified pursuant to the Executive Order.
    (2) Internal personnel rules and practices. Any information related 
solely to the internal personnel rules and practices of the Board.
    (3) Statutory exemption. Any information specifically exempted from 
disclosure by statute (other than 5 U.S.C. 552b), if the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (4) Trade secrets; commercial or financial information. Any matter 
that is a trade secret or that constitutes commercial or financial 
information obtained from a person and that is privileged or 
confidential.
    (5) Inter- or intra-agency memorandums. Information contained in 
inter- or intra-agency memorandums or letters that would not be 
available by law to a party (other than an agency) in litigation with an 
agency, including, but not limited to:
    (i) Memorandums;
    (ii) Reports;
    (iii) Other documents prepared by the staffs of the Committee, Board 
or Federal Reserve Banks; and
    (iv) Records of deliberations of the Committee and of discussions at 
meetings of the Committee or its staff.
    (6) Personnel and medical files. Any information contained in 
personnel and medical files and similar files the disclosure of which 
would constitute a clearly unwarranted invasion of personal privacy.
    (7) Information compiled for law enforcement purposes. Any records 
or information compiled for law enforcement purposes, to the extent 
permitted under 5 U.S.C. 552(b)(7).
    (8) Examination, inspection, operating, or condition reports, and 
confidential supervisory information. Any matter that is contained in or 
related to examination, operating, or condition reports prepared by, on 
behalf of, or for the use of an agency responsible for the regulation or 
supervision of financial institutions, including a state financial 
institution supervisory agency.
    (b) Segregation of nonexempt information. The Committee shall 
provide any reasonably segregable portion of a record that is requested 
after deleting those portions that are exempt under this section.
    (c) Discretionary release. Except where disclosure is expressly 
prohibited by statute, regulation, or order, the Committee may authorize 
the release of records that are exempt from mandatory disclosure 
whenever the Committee or designated Committee members determines that 
such disclosure would be in the public interest.
    (d) Delayed release. Publication in the Federal Register or 
availability to the public of certain information may be delayed if 
immediate disclosure would likely:
    (1) Interfere with accomplishing the objectives of the Committee in 
the discharge of its statutory functions;
    (2) Interfere with the orderly conduct of the foreign affairs of the 
United States;
    (3) Permit speculators or others to gain unfair profits or other 
unfair advantages by speculative trading in securities or otherwise;
    (4) Result in unnecessary or unwarranted disturbances in the 
securities markets;
    (5) Interfere with the orderly execution of the objectives or 
policies of other government agencies; or
    (6) Impair the ability to negotiate any contract or otherwise harm 
the commercial or financial interest of the United States, the 
Committee, the Board, any Federal Reserve Bank, or any department or 
agency of the United States.

[[Page 401]]

    (e) Prohibition against disclosure. Except as provided in this part, 
no officer, employee, or agent of the Committee or any Federal Reserve 
Bank shall disclose or permit the disclosure of any unpublished 
information of the Committee to any person (other than Committee 
officers, employees, or agents properly entitled to such information for 
the performance of official duties).



Sec. 271.8  Subpoenas.

    (a) Advice by person served. If any person, whether or not an 
officer or employee of the Committee, of the Board of Governors of the 
Federal Reserve System, or of a Federal Reserve Bank, has information of 
the Committee that may not be disclosed by reason of Sec. 271.7 and in 
connection therewith is served with a subpoena, order, or other process 
requiring the person's personal attendance as a witness or the 
production of documents or information upon any proceeding, the person 
should promptly inform the Secretary of the Committee of such service 
and of all relevant facts, including the documents and information 
requested and any facts that may be of assistance in determining whether 
such documents or information should be made available; and the person 
should take action at the appropriate time to inform the court or 
tribunal that issued the process, and the attorney for the party at 
whose instance the process was issued, if known, of the substance of 
this part.
    (b) Appearance by person served. Except as disclosure of the 
relevant information is authorized pursuant to this part, any person who 
has information of the Committee and is required to respond to a 
subpoena or other legal process shall attend at the time and place 
therein mentioned and decline to disclose such information or give any 
testimony with respect thereto, basing such refusal upon this part. If, 
notwithstanding, the court or other body orders the disclosure of such 
information, or the giving of such testimony, the person having such 
information of the Committee shall continue to decline to disclose such 
information and shall promptly report the facts to the Committee for 
such action as the Committee may deem appropriate.

[62 FR 61218, Nov. 17, 1997, as amended at 70 FR 7840, Feb. 16, 2005]



Sec. 271.9  Fee schedules; waiver of fees.

    (a) Fee schedules. The fees applicable to a request for records 
pursuant to Sec. Sec. 271.4 and 271.5 are set forth in appendix A to 
this section. These fees cover only the full allowable direct costs of 
search, duplication, and review. No fees will be charged where the 
average cost of collecting the fee (calculated at $5.00) exceeds the 
amount of the fee.
    (b) Payment procedures. The Secretary may assume that a person 
requesting records pursuant to Sec. 271.5 will pay the applicable fees, 
unless the request includes a limitation on fees to be paid or seeks a 
waiver or reduction of fees pursuant to paragraph (f) of this section.
    (1) Advance notification of fees. If the estimated charges are 
likely to exceed $100, the Secretary of the Committee shall notify the 
requester of the estimated amount, unless the requester has indicated a 
willingness to pay fees as high as those anticipated. Upon receipt of 
such notice, the requester may confer with the Secretary to reformulate 
the request to lower the costs.
    (2) Advance payment. The Secretary may require advance payment of 
any fee estimated to exceed $250. The Secretary may also require full 
payment in advance where a requester has previously failed to pay a fee 
in a timely fashion. The time period for responding to requests under 
Sec. 271.6(d), and the processing of the request shall be suspended 
until the Secretary receives the required payment.
    (3) Late charges. The Secretary may assess interest charges when fee 
payment is not made within 30 days of the date on which the billing was 
sent. Interest is at the rate prescribed in 31 U.S.C. 3717 and accrues 
from the date of the billing.
    (c) Categories of uses. The fees assessed depend upon the intended 
use for the records requested. In determining which category is 
appropriate, the Secretary shall look to the intended use set forth in 
the request for records. Where a requester's description of the

[[Page 402]]

use is insufficient to make a determination, the Secretary may seek 
additional clarification before categorizing the request.
    (1) Commercial use. The fees for search, duplication, and review 
apply when records are requested for commercial use.
    (2) Educational, research, or media use. The fees for duplication 
apply when records are not sought for commercial use, and the requester 
is a representative of the news media or an educational or noncommercial 
scientific institution, whose purpose is scholarly or scientific 
research. The first 100 pages of duplication, however, will be provided 
free.
    (3) All other uses. For all other requests, the fees for document 
search and duplication apply. The first two hours of search time and the 
first 100 pages of duplication, however, will be provided free.
    (d) Nonproductive search. Fees for search and review may be charged 
even if no responsive documents are located or if the request is denied.
    (e) Aggregated requests. A requester may not file multiple requests 
at the same time, solely in order to avoid payment of fees. If the 
Secretary reasonably believes that a requester is separating a request 
into a series of requests for the purpose of evading the assessment of 
fees, the Secretary may aggregate any such requests and charge 
accordingly. It is considered reasonable for the Secretary to presume 
that multiple requests of this type made within a 30-day period have 
been made to avoid fees.
    (f) Waiver or reduction of fees. A request for a waiver or reduction 
of the fees, and the justification for the waiver, shall be included 
with the request for records to which it pertains. If a waiver is 
requested and the requester has not indicated in writing an agreement to 
pay the applicable fees if the waiver request is denied, the time for 
response to the request for documents, as set forth in Sec. 271.6(d), 
shall not begin until a determination has been made on the request for a 
waiver or reduction of fees.
    (1) Standards for determining waiver or reduction. The Secretary 
shall grant a waiver or reduction of fees where it is determined both 
that disclosure of the information is in the public interest because it 
is likely to contribute significantly to public understanding of the 
operation or activities of the government, and that the disclosure of 
information is not primarily in the commercial interest of the 
requester. In making this determination, the following factors shall be 
considered:
    (i) Whether the subject of the records concerns the operations or 
activities of the government;
    (ii) Whether disclosure of the information is likely to contribute 
significantly to public understanding of government operations or 
activities;
    (iii) Whether the requester has the intention and ability to 
disseminate the information to the public;
    (iv) Whether the information is already in the public domain;
    (v) Whether the requester has a commercial interest that would be 
furthered by the disclosure; and, if so,
    (vi) Whether the magnitude of the identified commercial interest of 
the requester is sufficiently large, in comparison with the public 
interest in disclosure, that disclosure is primarily in the commercial 
interest of the requester.
    (2) Contents of request for waiver. A request for a waiver or 
reduction of fees shall include:
    (i) A clear statement of the requester's interest in the documents;
    (ii) The use proposed for the documents and whether the requester 
will derive income or other benefit for such use;
    (iii) A statement of how the public will benefit from such use and 
from the Committee's release of the documents;
    (iv) A description of the method by which the information will be 
disseminated to the public; and
    (v) If specialized use of the information is contemplated, a 
statement of the requester's qualifications that are relevant to that 
use.
    (3) Burden of proof. The burden shall be on the requester to present 
evidence or information in support of a request for a waiver or 
reduction of fees.
    (4) Determination by Secretary. The Secretary shall make a 
determination

[[Page 403]]

on the request for a waiver or reduction of fees and shall notify the 
requester accordingly. A denial may be appealed to the Committee in 
accordance with Sec. 271.6(h).
    (g) Employee requests. In connection with any request by an 
employee, former employee, or applicant for employment, for records for 
use in prosecuting a grievance or complaint of discrimination against 
the Committee, fees shall be waived where the total charges (including 
charges for information provided under the Privacy Act of 1974 (5 U.S.C. 
552a) are $50 or less; but the Secretary may waive fees in excess of 
that amount.
    (h) Special services The Secretary may agree to provide, and set 
fees to recover the costs of, special services not covered by the 
Freedom of Information Act, such as certifying records or information 
and sending records by special methods such as express mail or overnight 
delivery.

     Appendix A to Sec. 271.9--Freedom of Information Fee Schedule
Duplication:
    Photocopy, per standard page...........................         $.10
    Paper copies of microfiche, per frame..................          .10
    Duplicate microfiche, per microfiche...................          .35
Search and review:
    Clerical/Technical, hourly rate........................        20.00
    Professional/Supervisory, hourly rate..................        38.00
    Manager/Senior Professional, hourly rate...............        65.00
Computer search and production:
    Computer operator search, hourly rate..................        32.00
    Tapes (cassette), per tape.............................         6.00
    Tapes (cartridge), per tape............................         9.00
    Tapes (reel), per tape.................................        18.00
    Diskettes (3\1/2\), per diskette............         4.00
    Diskettes (5\1/4\), per diskette............         5.00
    Computer Output (PC), per minute.......................          .10
    Computer Output (mainframe)............................  actual cost
 



PART 272_RULES OF PROCEDURE--Table of Contents



Sec.
272.1 Authority.
272.2 Functions of the Committee.
272.3 Meetings.
272.4 Committee actions.
272.5 Notice and public procedure.

    Authority: 5 U.S.C. 552.

    Source: 38 FR 2754, Jan. 30, 1973, unless otherwise noted.



Sec. 272.1  Authority.

    This part is issued by the Federal Open Market Committee (the 
Committee) pursuant to the requirement of section 552 of title 5 of the 
United States Code that every agency shall publish in the Federal 
Register its rules of procedure.



Sec. 272.2  Functions of the Committee.

    The procedures followed by the Committee are designed to facilitate 
the effective performance of the Committee's statutory functions with 
respect to the regulation and direction of open market operations 
conducted by the Federal Reserve banks and with respect to certain 
direct transactions between the Reserve banks and the United States. In 
determining the policies to be followed in such operations, the 
Committee considers information regarding business and credit conditions 
and domestic and international economic and financial developments, and 
other pertinent information gathered and submitted by its staff and the 
staffs of the Board of Governors of the Federal Reserve System (the 
Board) and the Federal Reserve banks. Against the background of such 
information, the Committee takes actions from time-to-time to regulate 
and direct the open market operations of the Reserve banks. Such policy 
actions ordinarily are taken through the adoption and transmission to 
the Federal Reserve banks of regulations, authorizations, and 
directives.

[[Page 404]]



Sec. 272.3  Meetings.

    (a) Place and frequency. The Committee meets in Washington, DC, at 
least four times each year and oftener if deemed necessary. Meetings are 
held upon the call of the Chairman of the Board or at the request of any 
three members of the Committee. Notices of calls by the Chairman of the 
Board to other members are given by the Secretary of the Committee in 
writing, by telephone, or electronic means. Requests of any three 
members for the calling of a meeting shall state the time therefor and 
shall be filed in writing, by telephone, or electronic means with the 
Secretary who shall forthwith notify all members of the Committee in 
writing, by telephone, or electronic means. When the Secretary has sent 
notices to all members of the Committee that a meeting has been 
requested by three members and of the time therefor, a meeting is deemed 
to have been called. If, in the judgment of the Chairman, circumstances 
require that a meeting be called at such short notice that one or more 
members cannot be present in person, such members may participate in the 
meeting by telephone conference arrangements or by electronic means.
    (b) Alternates. Whenever any member of the Committee representing 
Federal Reserve banks shall find that the member will be unable to 
attend a meeting of the Committee, the member shall promptly notify the 
member's alternate and the Secretary of the Committee in writing, by 
telephone, or electronic means, and upon receipt of such notice such 
alternate shall advise the Secretary whether the alternate will attend 
such meeting.
    (c) Quorum. Seven members constitute a quorum of the Committee for 
purposes of transacting business except that, if there are fewer than 
seven members in office, then the number of members in office constitute 
a quorum. For purposes of this paragraph (c), members of the Committee 
include alternates acting in the absence of members. Less than a quorum 
may adjourn a meeting of the Committee from time to time until a quorum 
is in attendance.
    (d) Attendance at meetings. Attendance at Committee meetings is 
restricted to members and alternate members of the Committee, the 
Presidents of Federal Reserve Banks who are not at the time members or 
alternates, staff officers of the Committee, the Manager, and such other 
advisers as the Committee may invite from time to time.
    (e) Meeting agendas. The Secretary, in consultation with the 
Chairman, prepares an agenda of matters to be discussed at each meeting 
and the Secretary transmits the agenda to the members of the Committee 
within a reasonable time in advance of such meeting. In general, the 
agendas include reports by the Manager on open market operations since 
the previous meeting, and ratification by the Committee of such 
operations; reports by Economists on, and Committee discussion of, the 
economic and financial situation and outlook; Committee discussion of 
monetary policy and action with respect thereto; and such other matters 
as may be considered necessary.

[38 FR 2754, Jan. 30, 1973, as amended at 44 FR 52823, Sept. 11, 1979; 
65 FR 6320, Feb. 9, 2000; 68 FR 6061, Feb. 6, 2003; 70 FR 7840, Feb. 16, 
2005]



Sec. 272.4  Committee actions.

    (a) Actions at meetings. Actions are taken at meetings of the 
Committee except as described below.
    (b) Actions between meetings. Special circumstances may make it 
desirable in the public interest for Committee members to consider an 
action to modify an outstanding Committee authorization or directive at 
a time when it is not feasible to call a meeting. Whenever, in the 
judgment of the Chairman, such circumstances have arisen, the relevant 
information and recommendations for action are transmitted to the 
members by the Secretary, and the members communicate their votes to the 
Secretary. If the action is approved by a majority of the members, 
advice to that effect is promptly given by the Secretary to the members 
of the Committee and to the Reserve bank selected to execute 
transactions for the System Open Market Account. All communications of 
recommended actions and votes under this paragraph shall be in writing, 
by telephone, or

[[Page 405]]

electronic means; if the communication is made orally, the Secretary 
shall cause a written record to be made without delay. An action taken 
between meetings has the force and effect of an action at a meeting: 
Provided, however, That if a meeting is held before the execution of any 
operations pursuant to the action, the action is null and void unless it 
is ratified and confirmed by the Committee at such meeting.
    (c) Delegations of authority. In special circumstances, the 
Committee may delegate authority to take an action, subject to such 
instructions or guidelines as the Committee deems proper. Such 
delegations of authority may be made to the Chairman; to a subcommittee 
consisting of the Chairman and the Vice Chairman of the Committee and 
the Vice Chairman of the Board (or in the absence of the Chairman or of 
the Vice Chairman of the Board the members of the Board designated by 
the Chairman as alternates, and in the absence of the Vice Chairman of 
the Committee the alternate for the Vice Chairman); or to any other 
member or members of the Committee. An action taken pursuant to such a 
delegation of authority has the force and effect of an action taken by 
the Committee.
    (d) Technical changes to Committee rules. The Secretary of the 
Committee (or the acting secretary) is authorized to make technical 
corrections, such as spelling, grammar, construction, and organization 
(including removal of obsolete provisions and references), to the 
Committee's rules, regulations, and orders and other records of 
Committee action but only with the concurrence of the Committee's 
General Counsel.
    (e) Effective date. Committee action ordinarily is made effective as 
of the time it is taken because the nature of the subject matter and the 
action taken is such that the public interest and the proper discharge 
of the Committee's responsibilities so require. Occasionally, however, 
the Committee may specify that an action is to be effective at some 
different time.

[38 FR 2754, Jan. 30, 1973, as amended at 65 FR 6320, Feb. 9, 2000; 70 
FR 7841, Feb. 16, 2005]



Sec. 272.5  Notice and public procedure.

    There ordinarily is no published notice of proposed action by the 
Committee or public procedure thereon, as described in section 553 of 
title 5 of the United States Code, because such notice and procedure are 
impracticable, unnecessary, or contrary to the public interest.



PART 281_STATEMENTS OF POLICY--Table of Contents





Sec. 281.1  Policy regarding the Government in the Sunshine Act.

    On September 13, 1976, there was enacted into law the Government in 
the Sunshine Act, Pub. L. No. 94-409, 90 Stat. 1241 (``Sunshine Act''), 
established for the purpose of providing the public with the ``fullest 
practicable information regarding the decisionmaking processes of the 
Federal Government * * * while protecting the rights of individuals and 
the ability of the Government to carry out its responsibilities.'' \1\ 
The Sunshine Act applies only to those Federal agencies that are defined 
in section 552(e) of Title 5 of the United States Code and ``headed by a 
collegial body composed of two or more individual members, a majority of 
whom are appointed to such position by the President with the advice and 
consent of the Senate, and any subdivision thereof authorized to act on 
behalf of the agency.'' \2\
---------------------------------------------------------------------------

    \1\ Government in the Sunshine Act, Pub. L. 94-409, sec. 2, 90 Stat. 
1241 (1976).
    \2\ Government in the Sunshine Act, Pub. L. 94-409, sec. 3(a), 90 
Stat. 1241 (1976).
---------------------------------------------------------------------------

    The Federal Open Market Committee (``FOMC'') is a separate and 
independent statutory body within the Federal Reserve System. In no 
respect is it an agent or ``subdivision'' of the Board of Governors of 
the Federal Reserve System (``Board of Governors''). It was originally 
established by the Banking Act of 1933 and restructured in its present 
form by the Banking Act of 1935 and subsequent legislation in 1942 
(generally see 12 U.S.C. 263(a)). The FOMC's membership is composed of 
the seven members of the Board of Governors and five representatives of 
the Federal Reserve Banks who are selected annually in accordance with 
the procedures set forth in Section 12A of the Federal Reserve Act, 12 
U.S.C. 263(a). Members of the Board of Governors serve in an ex officio 
capacity on the FOMC by reason of their appointment as Members of the 
Board of Governors, not as a result of an appointment ``to such 
position'' (the FOMC) by the President. Representatives of the Reserve 
Banks serve on the FOMC not as a result of an appointment ``to such 
position'' by the President, but rather by virtue of their positions 
with the

[[Page 406]]

Reserve Banks and their selection pursuant to Section 12A of the Federal 
Reserve Act. It is clear therefore that the FOMC does not fall within 
the scope of an ``agency'' or ``subdivision'' as defined in the Sunshine 
Act and consequently is not subject to the provisions of that Act.
    As explained below, the Act would not require the FOMC to hold its 
meetings in open session even if the FOMC were covered by the Act. 
However, despite the conclusion reached that the Sunshine Act does not 
apply to the FOMC, the FOMC has determined that its procedures and 
timing of public disclosure already are conducted in accordance with the 
spirit of the Sunshine Act, as that Act would apply to deliberations of 
the nature engaged in by the FOMC.
    In the foregoing regard, the FOMC has noted that while the Act calls 
generally for open meetings of multi-member Federal agencies, 10 
specific exemptions from the open meeting requirement are provided to 
assure the ability of the Government to carry out its responsibilities. 
Among the exemptions provided is that which authorizes any agency 
operating under the Act to conduct closed meetings where the subject of 
a meeting involves information ``the premature disclosure of which 
would--in the case of an agency which regulates currencies, securities, 
commodities, or financial institutions, be likely to lead to significant 
financial speculation in currencies, securities, or commodities.'' \3\
---------------------------------------------------------------------------

    \3\ Government in the Sunshine Act, Pub. L. 94-409, sec. 3(a), 90 
Stat. 1242 (1976).
---------------------------------------------------------------------------

    As to meetings closed under such exemption, the Act requires the 
maintenance of either a transcript, electronic recording or minutes and 
sets forth specified, detailed requirements as to the contents and 
timing of disclosure of certain portions or all of such minutes. The Act 
permits the withholding from the public of the minutes where disclosure 
would be likely to produce adverse consequences of the nature described 
in the relevant exemptions.
    The FOMC has reviewed the agenda of its monthly meetings for the 
past three years and has determined that all such meetings could have 
been closed pursuant to the exemption dealing with finanical speculation 
or other exemptions set forth in the Sunshine Act. The FOMC has further 
determined that virtually all of its substantive deliberations could 
have been preserved pursuant to the Act's minutes requirements and that 
such minutes could similarly have been protected against premature 
disclosure under the provisions of the Act.
    The FOMC's deliberations are currently reported by means of a 
document entitled ``Record of Policy Actions'' which is released to the 
public approximately one month after the meeting to which it relates. 
The Record of Policy Actions complies with the Act's minutes 
requirements in that it contains a full and accurate report of all 
matters of policy discussed and views presented, clearly sets forth all 
policy actions taken by the FOMC and the reasons therefor, and includes 
the votes by individual members on each policy action. The timing of 
release of the Record of Policy Actions is fully consistent with the 
Act's provisions assuring against premature release of any item of 
discussion in an agency's minutes that contains information of a 
sensitive financial nature. In fact, by releasing the comprehensive 
Record of Policy Actions to the public approximately a month after each 
meeting, the FOMC exceeds the publication requirements that would be 
mandated by the letter of the Sunshine Act.
    Recognizing the Congressional purpose underlying the enactment of 
the Sunshine Act, the FOMC has determined to continue its current 
practice and timing of public disclosures in the conviction that its 
operations thus conducted are consistent with the intent and spirit of 
the Sunshine Act.

(12 U.S.C. 263; 5 U.S.C. 552)

[42 FR 13300, Mar. 10, 1977. Redesignated at 70 FR 7841, Feb. 16, 2005]



        SUBCHAPTER C_FEDERAL RESERVE SYSTEM LABOR RELATIONS PANEL



                        PARTS 290	299 [RESERVED]

[[Page 407]]



                              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 409]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2012)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)

[[Page 410]]

       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)
        II  Recovery Accountability and Transparency Board (Parts 
                200--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)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       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 (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      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 (Parts 4300--
                4399)

[[Page 411]]

     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
    LXXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 9200--9299)

[[Page 412]]

     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--99)

                         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 Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       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)
       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)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)

[[Page 413]]

       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      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 Policy and New Uses, 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  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    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  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 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, Department of 
                Agriculture (Parts 300--599)

[[Page 414]]

                           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)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      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)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

[[Page 415]]

                    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--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 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 Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        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)

[[Page 416]]

             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  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     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  Office of Workers' Compensation Programs, 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)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, 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)

[[Page 417]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (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  Millennium Challenge Corporation (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)

                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)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)

[[Page 418]]

         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, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         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)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       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 (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

[[Page 419]]

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       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)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            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  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)

[[Page 420]]

     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 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)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      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

[[Page 421]]

       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       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)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (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 [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)

[[Page 422]]

        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)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        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)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

[[Page 423]]

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            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 Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       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)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--599)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

[[Page 424]]

                   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--599)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (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) 
                [Reserved]
         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  Corporation for National and Community Service (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)

[[Page 425]]

     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 Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        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)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Health and Human Services (Parts 300--399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)

[[Page 426]]

        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (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)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        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 [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (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  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (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)

[[Page 427]]

       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)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   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 429]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2012)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  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
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 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 Nutrition 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
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I

[[Page 430]]

Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               2, XIII; 44, IV; 50, VI
  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
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  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, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      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 Financial Protection Bureau              12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
   for the District of Columbia
[[Page 431]]

Customs and Border Protection                     19, I
Defense Contract Audit Agency                     32, I
Defense Department                                2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 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
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
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
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
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                             2, IX; 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
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  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

[[Page 432]]

  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 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-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
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                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
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
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition 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

[[Page 433]]

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 Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  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
  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
Homeland Security, Department of                  2, XXX; 6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 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
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  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
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII

[[Page 434]]

Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
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
Industry and Security, Bureau of                  15, VII
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, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department                               2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Bureau of Ocean Energy Management, Regulation,  30, II
       and Enforcement
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 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
Investment Security, Office of                    31, VIII
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                                2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128

[[Page 435]]

Labor Department                                  5, XLII
  Employee Benefits Security Administration       29, XXV
  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
  Office of Workers' Compensation Programs        20, VII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of 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
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV

[[Page 436]]

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                       2, XXV; 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, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        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                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory 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 Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
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
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII

[[Page 437]]

Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
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                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 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
Special Inspector General for Iraq                5, LXXXVII
     Reconstruction
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
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 Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  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
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A

[[Page 438]]

  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
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the 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 439]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, 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, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

12 CFR
                                                                   66 FR
                                                                    Page
Chapter II
230 Compliance notification........................................41439
230.3 (a) revised; (g) added; interim..............................17802
230.4 (a)(1) and (2)(i) revised; interim...........................17802
230.6 (c) removed; interim.........................................17802
230.10 Added; interim..............................................17803
230 Supplement I amended; interim..................................17803
250 Authority citation revised.....................................24233
250.243 Added......................................................24229
250.244 Added......................................................24299
250.245 Added......................................................24229
250.246 Added......................................................24225
250.247 Added; interim.............................................24233
250.248 Added; interim.............................................24233
261a.13 (b)(9) revised; (c)(11) added..............................19718
    Corrected......................................................20863
263 Authority citation revised......................................8637
263.302 (a) revised.................................................8637
265.5 (d)(3) added.................................................54397
    (d)(3) revised.................................................58655
265.6 (f) revised..................................................54397
265.7 (d)(4) revised; (d)(9) through (14) added....................54397
265.11 (d)(8) and (11) revised; (d)(12) added......................54398
    (d)(11) revised................................................58656
268 Revised; interim................................................7704

                                  2002

12 CFR
                                                                   67 FR
                                                                    Page
Chapter II
250.160 (b) removed; eff. 4-1-03...................................76622
250.240 Removed; eff. 4-1-03.......................................76622
250.241 Removed; eff. 4-1-03.......................................76622
250.242 Removed; eff. 4-1-03.......................................76622
250.243 Removed; eff. 4-1-03.......................................76622
250.244 Removed; eff. 4-1-03.......................................76622
250.245 Removed; eff. 4-1-03.......................................76622
250.246 Removed; eff. 4-1-03.......................................76622
250.247 Removed; eff. 4-1-03.......................................76622
250.248 Removed; eff. 4-1-03.......................................76622
250.250 Removed; eff. 4-1-03.......................................76622
261a.13 (b)(10) added..............................................44526
264a Removed.......................................................15335

                                  2003

12 CFR
                                                                   68 FR
                                                                    Page
Chapter II
263 Authority citation revised.....................................48267
263.94 (a) and (b) revised.........................................48267
263.400--263.405 (Subpart J) Added.................................48267
264b Revised; eff. 1-9-04..........................................68721
268 Revised........................................................18085
272.3 (c) revised...................................................6061

                                  2004

12 CFR
                                                                   69 FR
                                                                    Page
Chapter II
263.65 Revised.....................................................56930

[[Page 440]]

                                  2005

12 CFR
                                                                   70 FR
                                                                    Page
Chapter II
230.2 (b) revised; eff. 7-1-06.....................................29593
230.6 (a)(3) revised; eff. 7-1-06..................................29593
230.8 (a) revised; (f) added; eff. 7-1-06..........................29593
230.11 Added; eff. 7-1-06..........................................29593
230 Supplement I amended; eff. 7-1-06..............................29594
232 Added; interim; eff. 3-7-06....................................33982
    Regulation at 70 FR 33982 eff. date delayed to 4-1-06..........70664
    Added; eff. 4-1-06.............................................70682
    Correctly revised..............................................75931
263.1 (f) amended; (g) redesignated as (h); new (g) added..........69638
264a Added.........................................................69638
268.205 Revised; interim...........................................67643
271.3 (c) amended...................................................7840
271.4 (c) revised...................................................7480
271.8 (a) revised; (b) amended......................................7840
272.3 (a) and (e) amended; (b) and (d) revised......................7840
272.4 (c) amended; (d) redesignated as (e); new (d) added...........7841
281 Authority citation revised......................................7841
281.1 Removed; new 281.1 redesignated from 281.2....................7841
281.2 Redesignated as 281.1.........................................7841

                                  2006

12 CFR
                                                                   71 FR
                                                                    Page
Chapter II
268.205 Revised; interim...........................................44558

                                  2007

12 CFR
                                                                   72 FR
                                                                    Page
Chapter II
230.3 (a) revised; (g) removed.....................................63483
230.4 (a)(1)(ii) and (2)(i) revised................................63483
230 Supplement I amended...........................................63484

                                  2008

12 CFR
                                                                   73 FR
                                                                    Page
233 Added; eff. 1-19-09............................................69405
263 Authority citation revised.....................................58032
263.65 Revised.....................................................58032
268.205 Regulation at 71 FR 44558 confirmed........................17886
    (a)(3), (9)(iii)(C) and (D) amended; (c)(4)(i) revised; (c)(5) 
redesignated as (c)(6); (a)(9)(iii)(E) and new (c)(5) added........17887

                                  2009

12 CFR
                                                                   74 FR
                                                                    Page
Chapter I
230.1 (a) revised...................................................5593
230.11 Heading, (a), (b)(2)(x) and (xi) revised; (b)(2)(xii) and 
        (c) added...................................................5593
230 Appendix B amended..............................................5593
    Supplement I amended............................................5594
    Appendix B corrected...........................................17768
233 Regulation at 73 FR 69405 compliance date extended to 6-1-10 
                                                                   62687

                                  2010

12 CFR
                                                                   75 FR
                                                                    Page
Chapter II
230.6 (a)(5) added.................................................31676
230.11 (a)(1)(i) revised...........................................31676
230 Supplement I amended...........................................31676
261a Revised.......................................................63704

                                  2011

12 CFR
                                                                   76 FR
                                                                    Page
 Chapter II
230 Supplement I amended...........................................42020
235 Added..........................................................43466
235.4 Added; interim...............................................43486
235 Appendix A amended; interim....................................43487
238 Added; interim.................................................56532
239 Added; interim.................................................56557
243 Added..........................................................67