[Federal Register Volume 61, Number 55 (Wednesday, March 20, 1996)]
[Rules and Regulations]
[Pages 11294-11303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6481]



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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 34

[Docket No. 96-06]
RIN 1557-AB48


Real Estate Lending and Appraisals

AGENCY: Office of the Comptroller of the Currency, Treasury.

ACTION: Final rule.

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SUMMARY: The Office of the Comptroller of the Currency (OCC) is 
revising its rules governing real estate lending as part of its 
Regulation Review Program. Consistent with the goals of the Program, 
the final rule modernizes and clarifies the rules, reduces unnecessary 
regulatory burdens, and applies regulatory requirements only where 
needed to address safety and soundness concerns or accomplish other 
statutory responsibilities of the OCC.

EFFECTIVE DATE: April 19, 1996.

FOR FURTHER INFORMATION CONTACT: Laura Goldman, Attorney, Bank 
Activities and Structure (202) 874-5300; Thomas Watson, National Bank 
Examiner, Credit & Management Policy (202) 874-5170; Frank R. Carbone, 
National Bank Examiner, Credit & Management Policy (202) 874-5170; 
Roland G. Ullrich, National Bank Examiner, Consumer and Fiduciary 
Compliance (202) 874-4866; or Mark Tenhundfeld, Senior Attorney, 
Legislative and Regulatory Activities (202) 874-5090, 250 E Street SW, 
Washington, DC 20219.

SUPPLEMENTARY INFORMATION:

Background

    The OCC has reviewed 12 CFR part 34 as another component of its 
Regulation Review Program (Program). The goal of the Program is to 
review all of the OCC's rules and to eliminate provisions that do not 
contribute significantly to maintaining the safety and soundness of 
national banks or to accomplishing the OCC's other statutory 
responsibilities. Another goal of the Program is to clarify regulations 
so that they more effectively convey the standards the OCC seeks to 
apply. Consistent with these goals, the OCC intends for this final rule 
to reduce regulatory costs and other burdens on national banks by 
eliminating regulatory requirements that are neither essential to 
maintaining the safety and soundness of national banks nor needed to 
accomplish the OCC's statutory responsibilities.

The Proposal

    On July 7, 1995, the OCC published a notice of proposed rulemaking 
(NPRM or proposal) (60 FR 35353) to revise subparts A (General), B 
(Adjustable-Rate Mortgages) (ARMs), and E (Other Real Estate Owned) 
(OREO) of 12 CFR part 34.1 In the NPRM, the OCC proposed to

[[Page 11295]]

permit the suspension of the disposition period for leases that are 
treated as OREO if a bank, acting in good faith, has entered into a 
non-coterminous sublease (i.e., a sublease that has a term shorter than 
the remainder of the master lease's term).2 Following termination 
of a non-coterminous sublease, a bank would have the same amount of 
time in which to dispose of the property that the bank had when it 
entered into the sublease. The proposal also summarized the OCC's 
general approach to questions of Federal preemption of State laws 
governing real estate lending while emphasizing that this clarification 
did not expand the scope of State law preemption beyond what appeared 
in the former rule. Finally, the proposal removed redundant or 
otherwise unnecessary provisions from the former rule and made several 
other changes intended to improve the rule's clarity.
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    \1\ As explained in the preamble to the NPRM, the OCC did not 
propose to amend subparts C (Appraisals) or D (Real Estate Lending 
Standards) because the OCC recently adopted these subparts on an 
interagency basis and the OCC wishes to gather additional 
information on their effectiveness before deciding whether to 
recommend an interagency effort to revise them.
    \2\ Under both the former rule and the NPRM, a coterminous 
sublease is deemed to be an effective disposition of a lease that 
has been transferred to OREO.
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The Final Rule and Comments Received

    The OCC received 12 comments. Most commenters supported the 
proposed changes. Comments were received from seven national banks, two 
bank holding companies that control national banks, two trade groups, 
and one law firm. Several commenters, while supporting the proposal, 
suggested that the OCC make additional changes, as discussed later in 
this preamble.
    Three commenters raised issues concerning appraisals (subpart C of 
part 34) while two offered suggestions concerning the real estate 
lending standards (subpart D). The OCC will take these comments into 
consideration when reviewing those subparts at a later date.
    One commenter suggested that section 114 of the Riegle-Neal 
Interstate Banking and Branching Efficiency Act (12 U.S.C. 43) (Riegle-
Neal Act) requires the OCC to resubmit for public comment proposed 
Secs. 34.4, 34.5, 34.21, and 34.23, which contain statements of 
preemption of various State laws. Section 114 requires, inter alia, 
that the OCC publish notice of requests for the OCC to issue opinions 
on whether Federal law preempts certain types of State laws, or when 
the OCC, on its own initiative, proposes to issue such an opinion.
    The OCC does not believe that section 114 applies to this 
rulemaking. First, no prior notice under section 114 is required for 
preemption issues that are essentially identical to those on which the 
agency previously has opined. As was explained in the NPRM, each of the 
sections at issue in the proposal is substantively identical to those 
found in the existing rule.3 Second, the OCC has followed formal 
rulemaking procedures in adopting and amending part 34, giving the 
public ample opportunity to comment on each section. Third, the OCC is 
adopting a rule, not issuing a preemption opinion or interpretation. 
Thus, the section 114 procedures do not apply.
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    \3\ See 60 FR at 35354, 35355, and 35356.
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    The following discussion summarizes the amendments to part 34 and 
the remaining comments.

Subpart A--General

Purpose and Scope (Sec. 34.1)
    A national bank may make real estate loans pursuant to 12 U.S.C. 
371 and 12 U.S.C. 24 (Seventh). Part 34 formerly identified (in 
Sec. 34.3) loans that are not considered ``real estate loans'' for 
purposes of 12 U.S.C. 371 but which national banks nevertheless may 
make pursuant to 12 U.S.C. 24 (Seventh). The proposal removed the list 
in Sec. 34.3, and eliminated cross-references in Sec. 34.1 to that 
list. However, since former paragraphs (f) and (g) of Sec. 34.3 
contained an exception to the regulation's scope, the proposal 
incorporated the substance of those provisions into the proposed 
``Scope'' section of the revised regulation. The proposal also 
relocated the text authorizing national banks to engage in real estate-
related transactions from Sec. 34.1(a) to proposed Sec. 34.3. This 
change was proposed to conform the order of subpart A of part 34 to 
that of other OCC rules. Finally, the proposal set forth a statement of 
the purpose of part 34.
    The OCC received no comments on this section, which is adopted as 
proposed with stylistic changes and one clarification. The final rule 
adds a statement clarifying that part 34 applies to national banks and 
their operating subsidiaries, except where otherwise noted (see, e.g., 
12 CFR 34.21(b)).
Definitions (Sec. 34.2)
    The proposal placed definitions used in subpart A in one location. 
The definition of ``due-on-sale clause'' was moved from former 
Sec. 34.4 to proposed Sec. 34.2 without any change to the definition's 
substance. The proposal added definitions of ``State'' and ``State law 
limitations'' to avoid restating of the full scope of preemption in 
every section that refers to preemption.
    The OCC received no comments on this section, which is adopted as 
proposed with minor stylistic edits.
General Rule (Sec. 34.3)
    The proposal set forth the general rule authorizing national banks 
to engage in real estate lending and related transactions, and 
relocated this general rule to a new section to conform the order of 
subpart A of part 34 to that followed in other OCC regulations.
    The OCC received no comments on this section, which is adopted as 
proposed with minor stylistic edits.
Loans Not Constituting Real Estate Loans (former Sec. 34.3--Removed)
    Former Sec. 34.3 listed several types of loans that are not 
considered real estate loans for purposes of part 34, but are 
permissible for national banks under 12 U.S.C. 24 (Seventh). The former 
provision was confusing and unnecessary. Therefore, the proposal 
removed Sec. 34.3 in its entirety.
    The OCC received no comments on this proposed removal, and 
accordingly adopts the proposed change.
Applicability of Law (Sec. 34.4)
    The proposal retained a statement of specific areas where Federal 
law preempts State law in order to provide continued guidance in this 
area. The proposal removed the vague reminder, found at former 
Sec. 34.2(b), that national banks must comply with applicable laws, but 
added, in Sec. 34.4(b), a general statement of the OCC's position with 
respect to preemption in order to clarify that the list of areas where 
State law is preempted, carried over from the former rule, is not 
necessarily exhaustive. The proposed rule clarified that the OCC will 
apply traditional principles of Federal preemption when determining 
whether a State law affecting real estate lending is preempted. Under 
these principles, State laws apply to national banks unless the State 
law expressly or impliedly conflicts with Federal law, the State law 
stands as an obstacle to the accomplishment of the full purposes and 
objectives of the Federal law, or Federal law is so comprehensive as to 
evidence a Congressional intent to occupy a given field.4
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    \4\ The Supreme Court's most recent discussion of the principles 
of Federal preemption may be found in Gade v. National Solid Wastes 
Management Ass'n, 120 L. Ed. 2d 73 (1992), in which the Court 
stated:
    As both the majority and dissent acknowledge, we have identified 
three circumstances in which a federal statute pre-empts state law: 
First, Congress can adopt express language defining the existence 
and scope of pre-emption. Second, state law is pre-empted where 
Congress creates a scheme of federal regulation so pervasive as to 
leave no room for supplementary state regulation. And third, ``state 
law is pre-empted to the extent that it actually conflicts with 
federal law.'' This third form of pre-emption, so-called actual 
conflict pre-emption, occurs either ``where it is impossible for a 
private party to comply with both state and federal requirements * * 
* or where state law `stands as an obstacle to the accomplishment 
and execution of the full purposes and objectives of Congress.' ''
    120 L. Ed. 2d at 91 (Kennedy, J., concurring; citations 
omitted). The plurality and dissenting opinions in Gade contain 
essentially the same formulation. See id. at 84 and 95, 
respectively.

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[[Page 11296]]

    Other than the comment summarized earlier concerning the 
application of section 114 of the Riegle-Neal Act (see text following 
``The Final Rule and Comments Received,'' above), the OCC received no 
comments on this provision, which is adopted as proposed with minor 
stylistic edits.
Due-On-Sale Clauses (Sec. 34.5)
    The proposal modified this section to improve clarity and to remove 
unnecessary restatements of statutory provisions. No change was 
proposed to the substance of those descriptions.
    Other than the comment summarized above concerning the application 
of section 114 of the Riegle-Neal Act (see text following ``The Final 
Rule and Comments Received,'' above), the OCC received no comments on 
this provision. The final rule makes minor stylistic edits to the 
provision as proposed and removes the definition of the term 
``lender,'' given that this term is not used in the final rule.

Subpart B--ARMs

Definitions (Sec. 34.20)
    The proposal amended the definition of ``ARM loan'' by deleting the 
provisions, found in former Sec. 34.5(a)(2), that exempt fixed-rate 
extensions of credit that are payable either on demand or without any 
interim amortization. The proposal made stylistic changes to the 
definition of ``ARM loan,'' and removed the definition of ``consumer 
credit'' because other changes to the rule make that definition 
unnecessary. In order to consolidate all definitions used in subpart B, 
the proposal relocated to Sec. 34.20 the definitions of ``affiliate'' 
and ``subsidiary'' formerly found in Sec. 34.6(b). Finally, the 
proposal used the term ``renewal'' instead of ``refinance'' as that 
term was used in former Sec. 34.5(a)(2) in order to avoid creating the 
impression that the OCC rule applies to refinancings as that term is 
narrowly defined in Regulation Z (Reg. Z, 12 CFR part 226) of the Board 
of Governors of the Federal Reserve System (Federal Reserve).
    In addition, the proposal sought comment on whether it remains 
necessary or appropriate to continue to exempt from the definition of 
``ARM loan'' fixed-rate loans that are payable at the end of a term 
that, when added to all terms for which the bank has promised to 
refinance the loan, is shorter than the term of the amortization 
schedule. This exemption is similar, but not identical, to the 
treatment of variable-rate transactions in Reg. Z. Specifically, the 
OCC sought comment on (1) whether the difference between part 34 and 
Reg. Z poses an unnecessary burden, and (2) whether commenters favor 
amending part 34 to eliminate the difference, notwithstanding that such 
approach would result in more loans being subject to the requirement 
that a bank use an index beyond its control.
    The OCC received three comments in response to the proposed changes 
and the request for comments. Those commenters responding to the issues 
raised by the exemption from the definition of ``ARM loan'' requested 
that the OCC retain the exemption in the final rule. One commenter 
noted that the highlighted difference between Reg. Z and part 34 does 
not pose an unnecessary burden and that the bank already has systems in 
place to deal with the difference. Another commenter noted that 
removing the exemption would add a new layer of confusion to the 
affected loans and would have the result of requiring banks to tie the 
loans to an independent index. For the reasons advanced by the 
commenters, and in light of the absence of any expression of problems 
experienced by national banks, the OCC is retaining the exemption.
    Another commenter suggested that the OCC should expand the 
definition of ``ARM loan'' to be consistent with the definition of 
``alternative mortgage transaction'' found in the Alternative Mortgage 
Transaction Parity Act (Parity Act) (12 U.S.C. 3801 et seq.).5 The 
suggested change would apply the general rule stated in Sec. 34.21 
(which permits national banks to make, sell, purchase, participate in, 
or otherwise deal in ARM loans without regard to State law limitations 
on those activities) to a broader variety of loans, including home 
equity loans. The commenter advocating this change suggested that the 
former rule created a competitive disadvantage for national banks by 
authorizing fewer types of ARM loans than may be made by other types of 
lenders. No other commenter suggested that the definition of ``ARM 
loan'' presents a problem.
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    \5\ The Parity Act defines ``alternative mortgage transaction'' 
as:
    [A] loan or credit sale secured by an interest in residential 
real property, a dwelling, all stock allocated to a dwelling unit in 
a residential cooperative housing corporation, or a residential 
manufactured home * * * (A) in which the interest rate or finance 
charge may be adjusted or renegotiated; (B) involving a fixed-rate, 
but which implicitly permits rate adjustments by having the debt 
mature at the end of an interval shorter than the term of the 
amortization schedule; or (C) involving any similar type of rate, 
method of determining return, term, repayment, or other variation 
not common to traditional fixed-rate, fixed-term transactions, 
including without limitation, transactions that involve the sharing 
of equity or appreciation; described and defined by applicable 
regulation.
    12 U.S.C. 3802(1).
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    The OCC has determined not to make the suggested change to the 
definition of ``ARM loan.'' Historically, the OCC has confined the 
scope of its ARM lending rule to home-purchase loans.6 While the 
OCC's ARM lending rule does not authorize home equity lending, such 
lending clearly is permissible under 12 U.S.C. 371, which permits any 
national banking association to ``make, arrange, purchase or sell loans 
or extensions of credit secured by liens on interests in real estate. * 
* *'' Id. at 371(a). Thus, national banks may make the types of loans 
that would be covered by the proposed expanded definition of ARM loan. 
If a national bank encounters a provision of State law that it believes 
is inappropriately restrictive, the bank may seek the OCC's opinion 
concerning whether Federal law preempts the provision of State law in 
question according to recognized principles of Federal preemption.
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    \6\ See, e.g., 46 FR 18932, 18935 (March 27, 1981) (``The intent 
of the regulation is to improve the availability of mortgage funds 
for purchasing residential property and to provide protection to 
home purchases. The intent is not to regulate adjustable rate loans 
made for other purposes.'').
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    The final rule adopts the changes to Sec. 34.20 as proposed in the 
NPRM, except that it relocates the definitions of ``affiliate'' and 
``subsidiary'' from Sec. 34.20 to Sec. 34.21(b). This change from the 
proposal clarifies that only the provision concerning the purchase of 
loans not in compliance with part 34 (Sec. 34.21(b)) applies to a 
bank's affiliates and subsidiaries as these terms are defined in 
section 23A of the Federal Reserve Act (12 U.S.C. 371c). Generally 
speaking, part 34 applies to national banks and their operating 
subsidiaries, unless the OCC determines otherwise.
General Rule (Sec. 34.21)
    The proposal made only minor changes to simplify the general rule, 
which provides that national banks and their subsidiaries may make, 
sell, purchase, participate, or otherwise deal in ARM loans, 
notwithstanding any State law to the contrary that applies to these 
activities. The proposal intended no change in the former rule 
governing preemption of State law limitations on ARM lending. A 
national bank may

[[Page 11297]]

purchase or participate in ARM loans that were not made in accordance 
with the OCC's regulations, except that, as already noted, loans 
purchased from an affiliate or subsidiary must comply with part 34.
    As noted earlier, the final rule relocates the definitions of 
``affiliate'' and ``subsidiary'' to Sec. 34.21(b) to clarify that these 
broadly encompassing definitions apply only in the limited 
circumstances specified in that section. The final rule otherwise 
adopts the proposal as published.
Index (Sec. 34.22)
    Former Sec. 34.7 required ARM loans that are subject to 12 CFR 
226.19(b) to specify an index to which changes in the interest rate 
shall be linked. Under that section, the index is to be readily 
available to, and verifiable by, the borrower and beyond the control of 
the lending bank. Proposed Sec. 34.22 made no changes to the substance 
of the former rule.
    One commenter requested that the OCC drop the requirement of an 
independent index altogether, and suggested that the secondary market 
and competitive pressures will protect the consumer. The OCC has 
decided to keep the independent index, because the agency believes that 
the requirement provides a significant protection to the consumer and 
that it creates only limited burden on national banks.
    Another commenter expressed concern that the former and proposed 
rules could be construed to prohibit rate changes based on such 
criteria as termination of employment, discontinuance of payment by a 
particular method, default, or termination of certain banking 
relationships by the customer. The commenter suggested that the OCC 
clarify that a national bank may decrease the interest rate at any time 
and increase the rate pursuant to a formula or schedule set forth in 
the relevant loan documents specifying the amount of the increase and 
the times at which, or circumstances under which, the increase may be 
made. The OCC agrees with the commenter that this clarification is 
appropriate, and has made the suggested change along with minor 
stylistic edits in the final rule.
Rate Changes (Former Sec. 34.8--Removed)
    Former Sec. 34.8 set forth the limitation found in section 1204 of 
the Competitive Equality Banking Act of 1987 (CEBA), Pub. L. 100-86, 
100 Stat. 552 (12 U.S.C. 3806(a)), which requires a consumer credit ARM 
loan to include a limitation on the maximum rate of interest that may 
apply during the term of the loan. The proposal removed Sec. 34.8 
because it is an unnecessary and potentially confusing restatement of 
the statute. Moreover, CEBA vests rulemaking authority with the Federal 
Reserve, which has implemented section 1204 of CEBA at 12 CFR 226.30.
    The OCC received no comments on the proposed change, and the 
section is removed as proposed.
Prepayment Fees (Sec. 34.23)
    The proposal made no substantive change to this section (former 
Sec. 34.9), which provides that national banks may impose fees for 
prepayments of ARM loans, notwithstanding any State law to the 
contrary.
    The OCC received no comments on this section, which is adopted as 
proposed with minor stylistic edits.
Disclosure (Former Sec. 34.10--Removed)
    This section requires a national bank that offers consumer ARM 
loans to provide the disclosures required by the Truth-in-Lending Act 
(15 U.S.C. 1601, et seq.), as implemented by the Federal Reserve in 
Reg. Z (12 CFR part 226). The OCC believes that the reminder to comply 
with Reg. Z disclosures when making a consumer ARM loan was appropriate 
when the OCC-imposed disclosure requirements were removed, but now is 
unnecessary. Accordingly, the proposal removed this section in its 
entirety. The proposal also removed the term ``consumer credit'' from 
the definition section (former Sec. 34.5(b)) since it was used only in 
former Sec. 34.10.
    One person commented on this proposed change, requesting that the 
final rule retain the reference to Reg. Z in order to remind national 
banks that the Federal Reserve has promulgated rules governing 
disclosure requirements related to ARM lending. The OCC remains of the 
view that a general reminder that Reg. Z applies is unnecessary, and 
that the presence of a reminder about the applicability of a separate 
regulation in one portion of an OCC rule, but not in others, is 
potentially confusing. Therefore, this section is removed from the 
final rule.
Nonfederally Chartered Commercial Banks (Sec. 34.24)
    Section 807(b) of the Garn-St Germain Act (Pub. L. 97-320, 96 Stat. 
1545 (12 U.S.C. 3801 note)) requires the OCC to identify those 
provisions of its ARM regulation that are inappropriate for 
nonfederally chartered banks. In implementing section 807(b), the OCC 
determined that all of the provisions of subpart B were appropriate, 
and so stated in former Sec. 34.11. Proposed Sec. 34.25 retained this 
statement in order to comply with the statute, and removed certain 
unnecessary citations to statutory authority.
    The OCC received no comments on this section, which is adopted as 
proposed with stylistic edits.
Transition Rule (Sec. 34.25)
    The former rule (Sec. 34.12) provided that national banks were 
authorized to make or administer loans during a ``window period'' 
beginning on the date the former rule was adopted (March 11, 1988) and 
ending October 1, 1988, if the loans complied with the OCC rules in 
effect before the March 11, 1988 amendment. Following October 1, 1988, 
all ARM loans have been required to comply with part 34, as revised. 
The proposal retained most of the former rule but removed what are now 
unnecessary references to the window period.
    The OCC received no comments on this section, which is adopted as 
proposed with stylistic edits.

Subpart C--Appraisals

    The OCC did not propose any changes to the rules governing the use 
of appraisals. Accordingly, subpart C is not amended.

Subpart D--Real Estate Lending Standards

    The OCC did not propose any changes to the real estate lending 
standards. Accordingly, subpart D is not amended.

Subpart E--OREO

Definitions (Sec. 34.81)
    Former Sec. 34.81 contained the definitions used in subpart E. The 
proposal made several changes to these definitions in addition to 
stylistic edits. First, proposed Sec. 34.81 defined OREO to include 
only ``debts previously contracted'' (DPC) real estate and former 
banking premises, and removed the term ``covered transactions real 
estate'' from the definition of OREO (thereby rendering the definition 
of covered transactions real estate unnecessary). The proposal also 
removed the term ``transaction value'' and corresponding definition.
    The OCC received no comments on these proposed changes, which are 
adopted as proposed with stylistic edits. However, one commenter 
suggested that the OCC make an additional change that was not proposed 
in the NPRM, namely, to exempt leases from the definition of OREO. This 
commenter noted that the proposal, which required a bank to dispose of 
OREO leases after the expiration of a non-coterminous sublease, would 
require the bank to track properties for an extended period

[[Page 11298]]

of time in order to insure that the bank ultimately complied with the 
disposition requirements. The commenter also raised a number of 
questions prompted by the NPRM, such as whether the existence of a 
sublease is sufficient despite the fact that a subtenant is delinquent 
and whether the sublease must be at market rates.
    The OCC believes that long-term leases of real property can present 
many of the same risks that are presented by ownership of a fee simple 
interest and, therefore, that safety and soundness reasons dictate that 
leases be covered by the rules governing disposition of OREO. The 
commenter is correct in concluding that a bank that has entered into a 
non-coterminous sublease must dispose of the lease within the time 
remaining under the OREO disposition rules once the sublease expires. 
However, the OCC believes that the tracking burden associated with this 
disposition requirement is minimal and reasonable in light of the 
safety and soundness benefits derived by continuing to treat leases as 
OREO. Questions regarding the adequacy of a particular sublease will be 
addressed on a case-by-case basis. However, national banks are to 
exercise good faith in entering into non-coterminous subleases.
Holding Period (Sec. 34.82)
    The proposal clarified, in Sec. 34.82(b)(2), that the holding 
period begins on the date that a national bank ceases to use former 
banking premises without relocating the business formerly conducted 
there to another site. The proposed rule also made changes to improve 
clarity and to remove provisions that are redundant in light of 12 
U.S.C. 29. The proposal relocated the requirement that a national bank 
dispose of OREO when prudent judgment dictates from Sec. 34.83 (which 
addresses the method of disposition) to Sec. 34.82 (which addresses 
timing of disposition). Finally, proposed Sec. 34.82 retained a 
statement regarding a bank's obligation to dispose of OREO. This 
statement clarified that OREO, as defined in the regulation, is subject 
to the divestiture provisions.
    The OCC received no comments on this section, which is adopted as 
proposed with minor stylistic edits.
Disposition of Real Estate (Sec. 34.83)
    Formerly, Sec. 34.83(a)(5) permitted disposition of leases only 
through assignment or a ``coterminous sublease'' (i.e., a lease with 
the same duration as the remainder of the master lease). Many national 
banks hold long-term leases and are unable either to assign them or to 
find a coterminous sublessee, notwithstanding the bank's best efforts 
to do so. As industry consolidation and technological advances further 
reduce the utilization of branches and back- office space, this problem 
likely will become more severe.
    To address this problem, proposed Sec. 34.83(a)(3) permitted the 
divestiture period to be suspended for the duration of a non-
coterminous sublease. The proposal also made numerous stylistic changes 
to Sec. 34.83 that simplify the former regulation and eliminate 
unnecessary repetition. The proposal modified Sec. 34.83(b) to clarify 
that disposition efforts must be ongoing throughout the disposition 
period. Finally, as previously noted, the proposal relocated the 
provision in former Sec. 34.83 (requiring disposition when prudent 
judgment dictates) to proposed Sec. 34.82.
    The OCC received six comments on the proposed change affecting non-
coterminous subleases, and all six favored the change. In light of 
these comments and for the reasons stated in the preamble to the NPRM, 
the OCC adopts the proposed changes to this section, with the 
additional changes noted as follows.
    Two commenters requested that the OCC permit a national bank to 
exercise options to extend a lease if the extension is necessary to 
attract prospective sublessees. These commenters noted that a third 
party will not enter into a sublease if the duration of the sublease is 
insufficient to justify making whatever expenditures are required to 
conform the property to the third party's business. The OCC agrees that 
a national bank should have the flexibility to extend a lease if the 
extension enables the bank to sublease the property and certain 
safeguards are satisfied, and has modified Sec. 34.83(a)(3) 
accordingly.
    Historically, the OCC has required national banks to divest of OREO 
as soon as possible. See, e.g., OCC Interpretive Letter No. 491 (1989-
1990 Transfer Binder) Fed. Banking L. Rep. (CCH) ] 83,074 at p. 71,184 
(Sept. 6, 1989) (``It should be recognized that the Bank's paramount 
obligation is to dispose of its interest in the lease [that has become 
OREO] at the earliest possible date, consistent with 12 U.S.C. Sec. 29 
* * *''). The OCC continues to require divestiture of OREO as soon as 
possible but in any event within the divestiture period prescribed by 
statute. The change proposed by the commenters is consistent with this 
requirement. Under the changes proposed in the NPRM and by the 
commenters, national banks remain obligated to take appropriate steps 
before the disposition period expires either to dispose of a lease 
outright (by assigning the lease or entering into a coterminous 
sublease) or to enter into a non-coterminous sublease that will suspend 
the running of the disposition period. The change proposed by the 
commenters will facilitate a bank's compliance with this obligation.
    While the OCC agrees that the change proposed by the commenters is 
appropriate and consistent with applicable law, a national bank may not 
enter into an extension of a master lease for the purpose of 
speculating in real estate. For this reason, the final rule clarifies 
that the OCC reserves the right to require a national bank to take 
immediate steps to dispose of an extended lease if the OCC finds that 
the bank entered into the extension for the purpose of real estate 
speculation.7 The final rule also prohibits a national bank from 
entering into an extension unless (1) the bank, prior to entering into 
an extension of the master lease, has a firm commitment from a third 
party to sublease the property and (2) the duration of the extension is 
reasonable and does not materially exceed the duration of the sublease.
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     7  The NPRM stated that the OCC reserves this right in 
connection with leases in general but was silent on the question of 
extensions of lease.
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    The OCC also has amended Sec. 34.83(a)(3) to clarify that the 
agency retains the authority to require a national bank to take 
appropriate steps to dispose of a lease (or extension thereof) if the 
OCC finds that the bank has not acted in good faith in entering into a 
sublease. Thus, for instance, if a bank subleases property to a related 
third party for a nominal amount so that the bank may retain possession 
of the lease and speculate on the property's future value, the bank 
will not have acted in good faith and the OCC will require the bank to 
take immediate steps to dispose of the master lease.
Future Bank Expansion (Sec. 34.84)
    Proposed Sec. 34.84 created a new section for the OCC's rule on 
future bank expansion that formerly appeared in Sec. 34.83(c) in order 
to make the future bank expansion rule easier to locate.
    The OCC received no comments on this section, which is adopted as 
proposed.
Appraisal Requirements (Sec. 34.85)
    The proposal made no substantive change to the existing rule set 
forth in former Sec. 34.84. This rule provides that a national bank 
should obtain either an appraisal or evaluation, as appropriate

[[Page 11299]]

under 12 CFR part 34, subpart C, when real estate is transferred to 
OREO or when OREO is sold. The former rule provided an exception to 
this requirement if a national bank already has a valid appraisal or 
evaluation for the property in question. Banks are to monitor the value 
of each parcel of OREO in a manner consistent with prudent banking 
practices.
    One commenter suggested that the OCC not require appraisals every 
time property formerly used (or intended to be used) as bank premises 
is transferred to OREO. The OCC will consider this comment when the 
agency reviews subpart C of part 34, which sets forth the rules 
governing when and what type of an appraisal is required. The OCC 
received no other comments on this section. The final rule makes 
stylistic edits to the proposal and removes an unnecessary reminder in 
Sec. 34.85(b) that a bank is to follow its real estate collateral 
evaluation policy.
Additional Expenditures and Notification (Sec. 34.86)
    The proposal rearranged Sec. 34.86 (former Sec. 34.85) to improve 
clarity, and modified other parts of this section to simplify the 
procedures for informing banks of the OCC's decision regarding proposed 
additional expenditures. The OCC specifically sought comment on whether 
the standard regarding completion of OREO development or improvement 
projects provides sufficient guidance.
    The OCC received one comment on this section. The commenter stated 
that the existing guidance on the development of OREO is sufficient. In 
light of this comment and the absence of comments requesting further 
guidance, the OCC adopts this section as proposed with minor stylistic 
edits.
Accounting Treatment (Sec. 34.87)
    The proposal retained the former rule, which specified that OREO 
reporting should conform to instructions in the Consolidated Report of 
Condition and Income.
    The OCC received one comment on the accounting treatment that 
should be applied to OREO. The commenter suggested that, since the 
leased property during the term of a non-coterminous sublease will not 
be an asset to be disposed of, the OCC should require national banks to 
account for the lease as ``premises'' and not ``held for sale.'' 
However, since a bank no longer uses OREO property as premises, the OCC 
believes that OREO property that has been subleased by a bank is 
appropriately accounted for as ``held for sale.'' The OCC received no 
other comments on this section, which is adopted as proposed with minor 
stylistic edits.
Application (Former Sec. 34.87)
    Former Sec. 34.87 provided that subpart E is applicable to all OREO 
held by a national bank, including OREO in existence since September 
17, 1993. The proposal removed this provision since it is unnecessary 
and potentially confusing.
    The OCC received no comment on this proposed removal. Accordingly, 
the OCC has removed former Sec. 34.87.

Effective Date

    Section 302 of the Riegle Community Development and Regulatory 
Improvement Act of 1994 delays the effective date of regulations 
promulgated by the Federal banking agencies that impose additional 
reporting, disclosure, or new requirements to the first day of the 
first calendar quarter following publication of the final rule. The OCC 
believes that section 302 is not applicable to this final rule, because 
the effect of the regulation is to reduce burdens on national banks. 
The final regulation does not impose any additional reporting or other 
requirements not already contained in the current version of the OCC's 
real estate lending regulations. The effective date of this final rule 
is April 19, 1996.

Derivation Table

    The following derivation table directs readers to the provision(s) 
of the former regulation, if any, upon which the final provision is 
based, and identifies generally the action taken.

                            Derivation Table                            
------------------------------------------------------------------------
         Revised section           Original section        Comments     
------------------------------------------------------------------------
34.1(a).........................  .................  Added.             
34.1(b).........................    34.1(b)          Modified.          
34.2(a).........................    34.4(a)          Modified.          
34.2(b).........................  .................  Added.             
34.2(c).........................  .................  Added.             
34.3............................    34.1(a)          Modified.          
34.4(a).........................    34.2(a)          Modified.          
34.4(b).........................  .................  Added.             
                                    34.2(b)          Removed.           
                                    34.3             Removed.           
34.5............................    34.4(a)          Modified.          
34.5............................    34.4(b)          Modified.          
34.20...........................    34.5(a)          Modified.          
                                    34.5(b)          Removed.           
34.21(a)........................    34.6(a)          Modified.          
34.21(b)........................    34.6(b)          Modified.          
34.22...........................    34.7             Modified.          
                                    34.8             Removed.           
34.23...........................    34.9             Modified.          
                                    34.10            Removed.           
34.24...........................    34.11            Modified.          
34.25...........................    34.12            Modified.          
34.81(a)........................  .................  Added.             
                                    34.81(b)         Removed.           
34.81(b)........................    34.81(c)         No change.         
34.81(c)........................    34.81(d)         No change.         
34.81(d)........................    34.81(e)         No change.         
34.81(e)........................    34.81(a)         Modified.          

[[Page 11300]]

                                                                        
34.81(f)........................    34.81(f)         No change.         
                                    34.81(g)         Removed.           
34.82(a)........................    34.82(a)         Modified.          
34.82(b)........................    34.82(b)         Modified.          
34.82(c)........................    34.82(c)         Modified.          
34.82(a)........................    34.83(a)         Modified.          
34.83(a)(1)(i)..................    34.83(a)(1)      Modified.          
34.83(a)(1)(ii).................    34.83(a)(2)      Modified.          
34.83(a)(1)(iii)................    34.83(a)(3)      Modified.          
34.83(a)(2).....................    34.83(a)(4)      Modified.          
34.83(a)(3).....................    34.83(a)(5)      Modified.          
34.83(a)(4).....................    34.83(a)(6)      Modified.          
34.83(b)........................    34.83(b)         Modified.          
34.84...........................    34.83(c)         No change.         
34.85(a)........................    34.84(a)         Modified.          
34.85(b)........................    34.84(b)         Modified.          
34.85(c)........................    34.84(c)         Modified.          
34.86(a)(1).....................    34.85(a)(2)(i)   No change.         
34.86(a)(2).....................    34.85(a)(2)(ii)  No change.         
34.86(a)(3).....................  .................  Added.             
34.86(b)........................    34.85(b)         Modified.          
34.86(b)(1).....................    34.85(a)(1)      Modified.          
34.87...........................    34.86            No change.         
                                    34.87            Removed.           
------------------------------------------------------------------------



Regulatory Flexibility Act

    It is hereby certified that this regulation will not have a 
significant economic impact on a substantial number of small entities. 
Accordingly, a regulatory flexibility analysis is not required. This 
regulation will reduce the regulatory burden on national banks, 
regardless of size, by simplifying and clarifying former regulatory 
requirements.

Executive Order 12866

    The OCC has determined that this final rule is not a significant 
regulatory action under Executive Order 12866.

Unfunded Mandates Act of 1995

    Section 202 of the Unfunded Mandates Act of 1995 (Unfunded Mandates 
Act) requires that an agency prepare a budgetary impact statement 
before promulgating an NPRM likely to result in a rule that includes a 
Federal mandate that may result in the annual expenditure of $100 
million or more in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector. If a budgetary 
impact statement is required, section 205 of the Unfunded Mandates Act 
requires an agency to identify and consider a reasonable number of 
alternatives before promulgating an NPRM. The OCC has determined that 
the final rule will not result in expenditures by State, local, and 
tribal governments, or by the private sector, of more than $100 million 
in any one year. Accordingly, the OCC has not prepared a budgetary 
impact statement or specifically addressed the regulatory alternatives 
considered. As discussed in the preamble, the final rule will reduce 
unnecessary burdens on national banks seeking to engage in real estate 
lending.

List of Subjects in 12 CFR Part 34

    Mortgages, National banks, Reporting and recordkeeping 
requirements.

Authority and Issuance

    For the reasons set out in the preamble, part 34 of chapter I of 
title 12 of the Code of Federal Regulations is amended as set forth 
below:

PART 34--REAL ESTATE LENDING AND APPRAISALS

    1. The authority citation for part 34 is revised to read as 
follows:

    Authority: 12 U.S.C. 1 et seq., 29, 93a, 371, 1701j-3, 1828(o), 
and 3331 et seq.

    2. Part 34 is amended by revising subparts A, B, and E to read as 
follows:

Subpart A--General

Sec.
34.1  Purpose and scope.
34.2  Definitions.
34.3  General rule.
34.4  Applicability of State law.
34.5  Due-on-sale clauses.

Subpart B--Adjustable-Rate Mortgages

34.20  Definitions.
34.21  General rule.
34.22  Index.
34.23  Prepayment fees.
34.24  Nonfederally chartered commercial banks.
34.25  Transition rule.

Subpart C--Appraisals

* * * * *

Subpart D--Real Estate Lending Standards

* * * * *

Subpart E--Other Real Estate Owned

34.81  Definitions.
34.82  Holding period.
34.83  Disposition of real estate.
34.84  Future bank expansion.
34.85  Appraisal requirements.
34.86  Additional expenditures and notification.
34.87  Accounting treatment.

Subpart A--General


Sec. 34.1  Purpose and scope.

    (a) Purpose. The purpose of this part is to set forth standards for 
real estate-related lending and associated activities by national 
banks.
    (b) Scope. This part applies to national banks and their operating 
subsidiaries as provided in 12 CFR 5.34. For the purposes of 12 U.S.C. 
371 and subparts A and B of this part, loans secured by liens on 
interests in real estate include loans made upon the security of 
condominiums, leaseholds, cooperatives, forest tracts, land sales 
contracts, and construction project loans. Construction project loans 
are not subject to subparts A and B of this part, however, if they have 
a maturity not exceeding 60 months and are made to finance the 
construction of either:
    (1) A building where there is a valid and binding agreement entered 
into by a financially responsible lender or other party to advance the 
full amount of the

[[Page 11301]]

bank's loan upon completion of the building; or
    (2) A residential or farm building.


Sec. 34.2  Definitions.

    (a) Due-on-sale clause means any clause that gives the lender or 
any assignee or transferee of the lender the power to declare the 
entire debt payable if all or part of the legal or equitable title or 
an equivalent contractual interest in the property securing the loan is 
transferred to another person, whether by deed, contract, or otherwise.
    (b) State means any State of the United States of America, the 
District of Columbia, Puerto Rico, the Virgin Islands, the Northern 
Mariana Islands, American Samoa, and Guam.
    (c) State law limitations means any State statute, regulation, or 
order of any State agency, or judicial decision interpreting State law.


Sec. 34.3  General rule.

    A national bank may make, arrange, purchase, or sell loans or 
extensions of credit, or interests therein, that are secured by liens 
on, or interests in, real estate, subject to terms, conditions, and 
limitations prescribed by the Comptroller of the Currency by regulation 
or order.


Sec. 34.4  Applicability of State law.

    (a) Specific preemption. A national bank may make real estate loans 
under 12 U.S.C. 371 and Sec. 34.3 without regard to State law 
limitations concerning:
    (1) The amount of a loan in relation to the appraised value of the 
real estate;
    (2) The schedule for the repayment of principal and interest;
    (3) The term to maturity of the loan;
    (4) The aggregate amount of funds that may be loaned upon the 
security of real estate; and
    (5) The covenants and restrictions that must be contained in a 
lease to qualify the leasehold as acceptable security for a real estate 
loan.
    (b) General standards. The OCC will apply recognized principles of 
Federal preemption in considering whether State laws apply to other 
aspects of real estate lending by national banks.


Sec. 34.5  Due-on-sale clauses.

    A national bank may make or acquire a loan or interest therein, 
secured by a lien on real property, that includes a due-on-sale clause. 
Except as set forth in 12 U.S.C. 1701j-3(d) (which contains a list of 
transactions in which due-on-sale clauses may not be enforced), due-on-
sale clauses in loans, whenever originated, will be valid and 
enforceable, notwithstanding any State law limitations to the contrary. 
For the purposes of this section, the term real property includes 
residential dwellings such as condominium units, cooperative housing 
units, and residential manufactured homes.

Subpart B--Adjustable-Rate Mortgages


Sec. 34.20  Definitions.

    Adjustable-rate mortgage (ARM) loan means an extension of credit 
made to finance or refinance the purchase of, and secured by a lien on, 
a one-to-four family dwelling, including a condominium unit, 
cooperative housing unit, or residential manufactured home, where the 
lender, pursuant to an agreement with the borrower, may adjust the rate 
of interest from time to time. An ARM loan does not include fixed-rate 
extensions of credit that are payable at the end of a term that, when 
added to any terms for which the bank has promised to renew the loan, 
is shorter than the term of the amortization schedule.


Sec. 34.21  General rule.

    (a) Authorization. A national bank and its subsidiaries may make, 
sell, purchase, participate in, or otherwise deal in ARM loans and 
interests therein without regard to any State law limitations on those 
activities.
    (b) Purchase of loans not in compliance. A national bank may 
purchase or participate in ARM loans that were not made in accordance 
with this part, except that loans purchased, in whole or in part, from 
an affiliate or subsidiary must comply with this part. For purposes of 
this paragraph, the terms affiliate and subsidiary have the same 
meaning as in 12 U.S.C. 371c.


Sec. 34.22  Index.

    If a national bank makes an ARM loan to which 12 CFR 226.19(b) 
applies (i.e., the annual percentage rate of a loan may increase after 
consummation, the term exceeds one year, and the consumer's principal 
dwelling secures the indebtedness), the loan documents must specify an 
index to which changes in the interest rate will be linked. This index 
must be readily available to, and verifiable by, the borrower and 
beyond the control of the bank. A national bank may use as an index any 
measure of rates of interest that meets these requirements. The index 
may be either single values of the chosen measure or a moving average 
of the chosen measure calculated over a specified period. A national 
bank also may increase the interest rate in accordance with applicable 
loan documents specifying the amount of the increase and the times at 
which, or circumstances under which, it may be made. A national bank 
may decrease the interest rate at any time.


Sec. 34.23  Prepayment fees.

    A national bank offering or purchasing ARM loans may impose fees 
for prepayments notwithstanding any State law limitations to the 
contrary. For purposes of this section, prepayments do not include:
    (a) Payments that exceed the required payment amount to avoid or 
reduce negative amortization; or
    (b) Principal payments, in excess of those necessary to retire the 
outstanding debt over the remaining loan term at the then-current 
interest rate, that are made in accordance with rules governing the 
determination of monthly payments contained in the loan documents.


Sec. 34.24  Nonfederally chartered commercial banks.

    Pursuant to 12 U.S.C. 3803(a), a State chartered commercial bank 
may make ARM loans in accordance with the provisions of this subpart. 
For purposes of this section, the term ``State'' shall have the same 
meaning as set forth in Sec. 34.2(b).


Sec. 34.25  Transition rule.

    If, on October 1, 1988, a national bank had made a loan or binding 
commitment to lend under an ARM loan program that complied with the 
requirements of 12 CFR part 29 in effect prior to October 1, 1988 (see 
12 CFR Parts 1 to 199, revised as of January 1, 1988) but would have 
violated any of the provisions of this subpart, the national bank may 
continue to administer the loan or binding commitment to lend in 
accordance with that loan program. All ARM loans or binding commitments 
to make ARM loans that a national bank entered into after October 1, 
1988, must comply with all provisions of this subpart.

Subpart C--Appraisals

* * * * *

Subpart D--Real Estate Lending Standards

* * * * *

Subpart E--Other Real Estate Owned


Sec. 34.81  Definitions.

    (a) Capital and surplus means:
    (1) A bank's Tier 1 and Tier 2 capital as calculated under the 
OCC's risk-based capital standards set out in appendix A to part 3 of 
this chapter based upon the bank's Consolidated

[[Page 11302]]

Report of Condition and Income filed under 12 U.S.C. 161; plus
    (2) The balance of a bank's allowance for loan and lease losses not 
included in the bank's Tier 2 capital, for purposes of the calculation 
of risk-based capital under Appendix A to 12 CFR part 3, based upon the 
bank's Consolidated Report of Condition and Income filed under 12 
U.S.C. 161.
    (b) Debts previously contracted (DPC) real estate means real estate 
(including capitalized and operating leases) acquired by a national 
bank through any means in full or partial satisfaction of a debt 
previously contracted.
    (c) Former banking premises means real estate (including 
capitalized and operating leases) for which banking use no longer is 
contemplated. This includes real estate originally acquired for future 
expansion that no longer will be used for expansion or other banking 
purposes.
    (d) Market value means the value determined in accordance with 
subpart C of this part.
    (e) Other real estate owned (OREO) means:
    (1) DPC real estate; and
    (2) Former banking premises.
    (f) Recorded investment amount means:
    (1) For loans, the recorded loan balance, as determined by 
generally accepted accounting principles; and
    (2) For former banking premises, the net book value.


Sec. 34.82  Holding period.

    (a) Holding period for OREO. A national bank shall dispose of OREO 
at the earliest time that prudent judgment dictates, but not later than 
the end of the holding period (or an extension thereof) permitted by 12 
U.S.C. 29.
    (b) Commencement of holding period. The holding period begins on 
the date that:
    (1) Ownership of the property is originally transferred to a 
national bank;
    (2) A bank completes relocation from former banking premises to new 
banking premises or ceases to use the former banking premises without 
relocating; or
    (3) A bank decides not to use real estate acquired for future bank 
expansion.
    (c) Effect of statutory redemption period. For DPC real estate that 
is subject to a redemption period imposed under State law, the holding 
period begins at the expiration of that redemption period.


Sec. 34.83  Disposition of real estate.

    (a) Disposition. A national bank may comply with its obligation to 
dispose of real estate under 12 U.S.C. 29 in the following ways:
    (1) With respect to OREO in general:
    (i) By entering into a transaction that is a sale under generally 
accepted accounting principles;
    (ii) By entering into a transaction that involves a loan guaranteed 
or insured by the United States government or by an agency of the 
United States government or a loan eligible for purchase by a 
Federally-sponsored instrumentality that purchases loans; or
    (iii) By selling the property pursuant to a land contract or a 
contract for deed;
    (2) With respect to DPC real estate, by retaining the property for 
its own use as bank premises or by transferring it to a subsidiary or 
affiliate for use in the business of the subsidiary or affiliate;
    (3) With respect to a capitalized or operating lease:
    (i) By obtaining an assignment or a coterminous sublease. If a 
national bank enters into a sublease that is not coterminous, the 
period during which the master lease must be divested will be suspended 
for the duration of the sublease, and will begin running again upon 
termination of the sublease. A national bank holding a lease as OREO 
may enter into an extension of the lease that would exceed the holding 
period referred to in Sec. 34.82 if the extension meets the following 
criteria:
    (A) The extension is necessary in order to sublease the master 
lease;
    (B) The national bank, prior to entering into the extension, has a 
firm commitment from a prospective subtenant to sublease the property; 
and
    (C) The term of the extension is reasonable and does not materially 
exceed the term of the sublease;
    (ii) Should the OCC determine that a bank has entered into a lease, 
extension of a lease, or a sublease for the purpose of real estate 
speculation in violation of 12 U.S.C. 29 and this part, the OCC will 
take appropriate measures to address the violation, which may include 
requiring the bank to take immediate steps to divest the lease or 
sublease; and
    (4) With respect to a transaction that does not qualify as a 
disposition under paragraphs (a)(1) through (3) of this section, by 
receiving or accumulating from the purchaser an amount in a down 
payment, principal and interest payments, and private mortgage 
insurance totalling at least 10 percent of the sales price, as measured 
in accordance with generally accepted accounting principles.
    (b) Disposition efforts and documentation. A national bank shall 
make diligent and ongoing efforts to dispose of each parcel of OREO, 
and shall maintain documentation adequate to reflect those efforts.


Sec. 34.84  Future bank expansion.

    A national bank normally should use real estate acquired for future 
bank expansion within five years. After holding such real estate for 
one year, the bank shall state, by resolution of the board of directors 
or an appropriately authorized bank official or subcommittee of the 
board, definite plans for its use. The resolution or other official 
action must be available for inspection by national bank examiners.


Sec. 34.85  Appraisal requirements.

    (a) General. (1) Upon transfer to OREO, a national bank shall 
substantiate the parcel's market value by obtaining either:
    (i) An appraisal in accordance with subpart C of this part; or
    (ii) An appropriate evaluation when the recorded investment amount 
is equal to or less than the threshold amount in subpart C of this 
part.
    (2) A national bank shall develop a prudent real estate collateral 
evaluation policy that allows the bank to monitor the value of each 
parcel of OREO in a manner consistent with prudent banking practice.
    (b) Exception. If a national bank has a valid appraisal or an 
appropriate evaluation obtained in connection with a real estate loan 
and in accordance with subpart C of this part, then the bank need not 
obtain another appraisal or evaluation when it acquires ownership of 
the property.
    (c) Sales of OREO. A national bank need not obtain a new appraisal 
or evaluation when selling OREO if the sale is consummated based on a 
valid appraisal or an appropriate evaluation.


Sec. 34.86  Additional expenditures and notification.

    (a) Additional expenditures on OREO. For OREO that is a development 
or improvement project, a national bank may make advances to complete 
the project if the advances:
    (1) Are reasonably calculated to reduce any shortfall between the 
parcel's market value and the bank's recorded investment amount;
    (2) Are not made for the purpose of speculation in real estate; and
    (3) Are consistent with safe and sound banking practices.
    (b) Notification procedures. (1) A national bank shall notify the 
appropriate supervisory office at least 30 days before implementing a 
development or improvement plan for OREO when the sum of the plan's 
estimated cost and the bank's current

[[Page 11303]]

recorded investment amount (including any unpaid prior liens on the 
property) exceeds 10 percent of the bank's capital and surplus. A 
national bank need notify the OCC under this paragraph (b)(1) only 
once. A national bank need not notify the OCC that the bank intends to 
re-fit an existing building for new tenants or to make normal repairs 
and incur maintenance costs to protect the value of the collateral.
    (2) The required notification must demonstrate that the additional 
expenditure is consistent with the conditions and limitations in 
paragraph (a) of this section.
    (3) Unless informed otherwise, the bank may implement the proposed 
plan on the thirty-first day (or sooner, if notified by the OCC) 
following receipt by the OCC of the bank's notification, subject to any 
conditions imposed by the OCC.


Sec. 34.87  Accounting treatment.

    A national bank shall account for OREO, and sales of OREO, in 
accordance with the Instructions for the preparation of the 
Consolidated Reports of Condition and Income.

    Dated: March 7, 1996.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 96-6481 Filed 3-19-96; 8:45 am]
BILLING CODE 4810-33-P