[Federal Register Volume 69, Number 157 (Monday, August 16, 2004)]
[Rules and Regulations]
[Pages 50293-50298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18681]


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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 5

[Docket No. 04-20]
RIN 1557-AC11


Fundamental Change in Asset Composition of a Bank

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 
amending its regulations to require a national bank to obtain the 
approval of the OCC before changing the composition of all, or 
substantially all, of its assets (1) through sales or other 
dispositions, or (2) after having sold or disposed of all, or 
substantially all, of its assets, through subsequent purchases or other 
acquisitions or other expansions of its operations. The final rule 
provides that, in the second case, the OCC will apply, among other 
factors, the same factors as it applies to the establishment of a de 
novo bank. This new approval requirement will enable the OCC to better 
assess the bank's compliance with applicable law and whether the 
proposed change comports with safe and sound banking practices.

DATES: Effective Date: October 1, 2004.

FOR FURTHER INFORMATION CONTACT: For questions concerning the final 
rule, contact Heidi M. Thomas, Special Counsel, Legislative and 
Regulatory Activities, at (202) 874-5090; Richard Cleva, Senior 
Counsel, Bank Activities and Structure Division, at (202) 874-5300; or 
Jan Kalmus, NBE/Licensing Expert, Licensing Activities, at (202) 874-
5060, 250 E Street, SW., Washington, DC 20219.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The OCC's current regulations at 12 CFR part 5 do not require the 
approval of the OCC before a national bank substantially changes the 
composition of its assets through sale or other disposition, nor do 
they require prior OCC review or approval before a national bank 
charter becomes a ``stripped'' or ``dormant'' bank charter. Likewise, 
our regulations do not address a dormant national bank's increase in 
asset size through purchases or acquisitions to engage again in the 
business of banking. On January 7, 2004, we proposed to add to our 
regulations a prior approval requirement for these fundamental changes 
in a bank's asset composition in order to address the supervisory 
concerns raised by these types of transactions. See 69 FR 892 (Jan. 7, 
2004).
    As described in the preamble to the proposed rule, these concerns 
may include increased operations risk, increased concentration risk 
(especially where asset composition changes as a result of 
divestiture), and the ability of bank management to implement the new 
strategy successfully. In addition, a dormant bank being revived may 
propose to engage in activities that significantly deviate or are a 
change from the bank's original business plan or operations. If ill 
conceived, poorly planned, or inadequately executed, these new 
activities can expose the bank to imprudent levels of risk, with the 
potential for adverse consequences for the bank's financial condition 
and, in the extreme situation, for its viability. Even entry into lines 
of business that are traditional for national banks may present 
elevated levels of risk to a particular bank if the bank expands 
substantially or too quickly from a dormant status, misjudges its 
markets, or fails to ensure that bank management and internal control 
systems keep pace with the change. The preamble to the proposal also 
noted that concerns raised by the acquisition of a dormant bank by a 
third party necessitates the need for the OCC to thoroughly review the 
nature of the services and products that might be initiated by an 
acquiring entity.
    For the reasons discussed in this preamble, we are adopting in 
final form

[[Page 50294]]

a rule that is substantially the same as the proposal with a few 
modifications described later in this preamble discussion.

II. Description of the Proposed Rule

    We proposed to add a new Sec.  5.53 to subpart D of 12 CFR part 5 
to require a national bank to obtain the OCC's prior written approval 
before undertaking either of two types of fundamental changes in the 
composition of the bank's assets: (1) Changing the composition of all, 
or substantially all, of its assets through sales or other 
dispositions, or (2) after having sold or disposed of all, or 
substantially all, of its assets, subsequently purchasing or otherwise 
acquiring assets. Proposed Sec.  5.53(d) specified that this approval 
requirement would not apply to a change in composition of all, or 
substantially all, of a bank's assets if the bank undertakes the change 
in response to direction from the OCC (e.g., in an enforcement action 
pursuant to 12 U.S.C. 1818) or pursuant to a statute or regulation that 
requires OCC review or approval (e.g., a voluntary liquidation pursuant 
to 12 U.S.C. 181 and 12 CFR 5.48).
    The proposed rule stated that, in reviewing applications filed 
under Sec.  5.53, we would consider the purpose of the transaction, its 
impact on the safety and soundness of the bank, and any effect on the 
bank's customers. It further stated that we may deny the application if 
the transaction would have a negative effect in any such respect.
    This proposed rule also provided that if a national bank has sold 
or otherwise disposed of its assets in a transaction requiring approval 
pursuant to proposed Sec.  5.53, our review of any subsequent change in 
asset composition through purchase or other acquisition would include, 
in addition to the forgoing factors, the factors governing the 
organization of a de novo bank under 12 CFR 5.20.
    Finally, the proposed rule made a conforming change to Sec.  5.20 
to provide that any use of the term ``operating plan'' or ``operating 
plans'' would be changed to ``business plan or operating plan'' or 
``business plans or operating plans,'' as appropriate. As explained in 
the preamble, current Sec.  5.20 only uses the term ``operating plan'' 
when referring to the document that describes a national bank's 
management goals, earnings objectives, and lines of business. However, 
the banking industry more commonly uses the term ``business plan'' to 
refer to this document. The term ``business plan'' also typically is 
used by the OCC and the other Federal banking agencies in policy 
statements, applications, and internal documents. The OCC proposed this 
change to eliminate any confusion about whether a substantive 
difference between the two terms is intended. No such difference was 
intended, and the two terms may be used interchangeably.

III. Discussion of Comments

    The OCC received four comments on the proposed rule. Two comments 
were submitted by trade associations, one by a national bank, and one 
by an individual. One commenter, a trade association, supported the 
proposal in full, with no recommended changes. Specifically, this 
commenter stated that recent examples of troubled banks that have 
markedly changed their business operations make this rule appropriate. 
Furthermore, this commenter noted that because extremely large shifts 
in the composition of a bank's assets may be made rapidly in today's 
market, the OCC should review management control and capability issues 
before such changes take place, rather than at the next examination. 
Finally, this commenter stated that because such an asset change occurs 
rarely, the rule should not pose significant new burdens on community 
or other national banks.
    Another commenter proposed a technical drafting amendment. The two 
remaining commenters raised a number of issues with the proposed rule, 
which we address in the following discussion.
    Scope of Applicability of Proposed Rule. One commenter, a national 
bank, suggested that large banks, their domestic operating 
subsidiaries, and their foreign subsidiaries should be exempt from the 
proposed rule. It stated that a formal application process was 
unnecessary because these large institutions are supervised by resident 
OCC examiners who are familiar with the bank's operations and 
management. Therefore, they concluded, a large bank could not undertake 
a fundamental change in the composition of assets without the full 
knowledge, and approval, of OCC staff.
    We have declined to make this change. While, as the commenter 
observes, our large bank resident examiners are very familiar with the 
operations and management of the banks they supervise, the types of 
fundamental changes covered by this rule also have legal and policy 
implications that warrant an interdisciplinary review by other OCC 
staff, as well as input from the supervisory staff with immediate 
responsibility for the bank. The formal application process prescribed 
by this final rule provides the OCC with the best opportunity both to 
review the safety and soundness of the transaction and to assess the 
bank's compliance with applicable law. This is consistent with our 
current rules, which similarly do not exempt large banks from other 
types of application requirements.
    This same commenter requested clarification about how the new 
approval requirement would apply when there are multiple national bank 
charters within a single bank holding company structure. We note in 
response that the final rule applies to each individual national bank, 
whether or not the bank is part of a holding company. Therefore, a 
separate application is required of each bank in a holding company 
structure that proposes to change its asset composition in one of the 
ways covered by the final rule.
    In addition, this commenter requested that the final rule exclude 
the sales of assets under asset securitization programs where the 
selling bank continues to have contractual obligations with respect to 
the securitization, such as acting as servicer of the loans involved. 
The commenter indicated that securitization strategies and activities 
do not represent a fundamental change in banking activities. We decline 
to exempt all asset securitizations from the scope of the final rule 
because we believe there may be certain scenarios where securitization 
transactions would fall under this application requirement. For 
example, we believe that a stripped charter subject to the new approval 
requirement would result where a bank proposes to make a one-time 
transfer of all, or substantially all, of its assets into a trust for 
securitization purposes while retaining only the business of servicing 
the loans. If, on the other hand, a bank is in the ongoing business of 
originating loans and securitizing them in order to fund new 
originations, and it does fund those new originations so that it 
continually is replenishing the assets it has securitized, then we 
agree that the ongoing securitization activity does not subject the 
bank to the requirements of the final rule. This distinction between 
securitizations that are part of a bank's ordinary and ongoing business 
and those that are not is consistent with the description of what 
constitutes a ``dormant bank'' that appears later in this preamble 
discussion. We have amended the final rule to clarify the application 
of this requirement to securitizations.
    Another commenter, a trade association, asked us to explain how the 
new rule would apply in cases covered by the OCC's Significant 
Deviation

[[Page 50295]]

Policy. \1\ The OCC imposes the ``significant deviation condition'' on 
certain charter and conversion applications. Under this condition, a 
bank must provide the OCC at least 60 days' prior written notice of its 
intent to significantly deviate or change from its business plan or 
operations and must obtain the OCC's written determination of no 
objection before the bank engages in any significant deviation or 
change from its business plan or operations. The significant deviation 
condition expressly states that ``[i]f such deviation is the subject of 
an application filed with the OCC, the OCC does not require any further 
notice to the supervisory office.'' Therefore, as a general matter, a 
bank that is covered both by Sec.  5.53 and by the condition imposed 
pursuant to the Significant Deviation Policy only would need to file an 
application under Sec.  5.53.
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    \1\ See OCC's Significant Deviation Policy, as posted as a 
supplemental policy document to the Charters Booklet of the 
Comptroller's Licensing Manual, http://www.occ.treas.gov/corpbook/forms/SigDevPolicy8-03.pdf.
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    This same commenter thought that it was redundant, and therefore 
unnecessary; to apply the new approval requirement to transactions that 
also would require a notice under the Change in Bank Control Act 
(CBCA).\2\ However, the CBCA requires the purchaser of the bank, and 
not the bank itself, to file a notice with the OCC. Furthermore, the 
statutory factors that the OCC considers in deciding whether to 
disapprove a CBCA notice are different and more limited than those we 
will consider in reviewing an application under the final rule.
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    \2\ 12 U.S.C. 1817(j). See also 12 CFR 5.50 (OCC regulation 
implementing the CBCA).
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    The CBCA factors include considerations such as the effect of the 
proposed acquisition on competition; the financial condition, 
competence, experience, and integrity of the proposed acquirers; the 
competence, experience, and integrity of the proposed managers of the 
bank; and the effect of the transaction on the Federal deposit 
insurance funds. Like the proposal, this final rule provides that, in 
reviewing a bank's application to make a fundamental change in its 
asset composition, the OCC will consider the purpose of the 
transaction, the safety and soundness of the bank, and any effect on 
the bank's customers. None of these considerations is specifically 
captured by the CBCA factors. Accordingly, the application required by 
new Sec.  5.53 is not redundant of the CBCA notice, and we decline to 
make an exception in the final rule for transactions involving a change 
in bank control.
    Application Process. A trade association commenter requested that 
the final rule provide guidance on the specific application process of 
proposed Sec.  5.53, and asked whether and how the public notice and 
comment provision in part 5 applies to applications under the proposed 
rule. The procedural rules in subpart A of part 5, Rules of General 
Applicability, generally govern all application requirements in part 5 
``unless otherwise stated.'' \3\ Among other things, subpart A provides 
for a public notice and comment process, and, as part of that process, 
permits ``any person'' to submit a written request for a hearing.\4\
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    \3\ 12 CFR 5.2(a).
    \4\ Procedural information that is not included in part 5 is 
provided in the ``General Policies and Procedures'' booklet of the 
Comptroller's Licensing Manual, which contains sections that address 
the expansion and contraction of activities. This booklet is 
available on the OCC's Web site at http://www.occ.treas.gov/corpbook/group1/public/pdf/gpp.pdf.
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    Part 5 states that the public notice and comment procedures and the 
opportunity for a hearing do not apply to most filings pertaining to a 
change in a national bank's activities.\5\ The issues presented by such 
filings typically concern the safety and soundness of, or the legal 
authority for, the proposed activity. Since the application requirement 
imposed by this final rule similarly pertains to a change in a bank's 
activities in certain circumstances, and since the principal issues 
presented are likely to be safety and soundness or legal issues, we 
conclude that the public procedures otherwise required by part 5 are 
not necessary in connection with all applications under Sec.  5.53. We 
recognize, however, that they may be appropriate in particular cases. 
Accordingly, the final rule provides that those procedures do not apply 
unless the OCC determines otherwise due to the significance or novelty 
of the issues raised by a particular application.
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    \5\ See, e.g., 12 CFR 5.26(e)(6) (fiduciary powers), 5.36(f) 
(other equity investments), and 5.37(d)(4) (investment in bank 
premises).
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    However, we note that a change in composition of assets subject to 
Sec.  5.53 may be part of a bank's implementation of a new business 
strategy that subjects the bank to other filing requirements that 
require public procedures (such as the branch closure notice 
requirement found in 12 U.S.C. 1831r-1). Nothing in this final rule 
excepts or excuses the bank from compliance with public procedures 
imposed in connection with those other filing requirements.
    This same commenter also requested that expedited procedures be 
available for an ``eligible bank,'' i.e., a bank that is well 
capitalized, well managed, and that has a satisfactory or better CRA 
rating, as they are under OCC rules for applications and notices 
covering other changes to activities and operations. The OCC does not 
agree that an expedited process is warranted for these types of 
applications. By definition, the changes covered by Sec.  5.53 
constitute a fundamental shift in activities and operations that may 
have serious safety and soundness implications unique to each bank that 
proposes these changes. The OCC's evaluation of such a significant 
departure from the bank's existing activities and operations requires 
an evaluation that does not lend itself to the type of expedited 
consideration available in the other types of filings to which the 
commenter refers. Accordingly, we decline to accept the commenter's 
suggestion. However, we expect that, at most, only a few banks a year 
would be subject to this requirement, and that it will therefore not 
have a broad or burdensome effect on the national banking system as a 
whole.
    The final rule does not prescribe time frames or other procedural 
details with respect to the applications covered by Sec.  5.53, which 
are matters typically addressed in the Comptroller's Licensing 
Manual.\6\ We expect the procedures governing this new application 
requirement would be generally consistent with those that we use for 
the processing of other, similar types of applications.
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    \6\ The Comptroller's Licensing Manual is available at http://www.occ.treas.gov/corpapps/corpapplic.htm.
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    Definition of ``all, or substantially all'' of assets. The proposed 
rule applied the prior approval requirement when a national bank 
changes the composition of ``all, or substantially all,'' of its 
assets, or, after having sold or disposed of all, or substantially all, 
of its assets, subsequently purchases or acquires new assets. One 
commenter asked that we quantify the phrase ``substantially all'' by 
establishing that the ``sales or other dispositions'' must affect at 
least 95% of the bank's assets. We decline to make this change because 
a bright-line standard could encourage the structuring of asset 
dispositions or acquisitions with a view toward avoiding the 
requirements of Sec.  5.53. The approach taken in the final rule also 
is consistent with our rules implementing the Bank Merger Act (BMA), 12 
U.S.C. 1828(c)(2), where we similarly use and apply the phrase ``all, 
or substantially

[[Page 50296]]

all'' of the assets without relying on a bright-line, quantitative 
definition.\7\
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    \7\ See 12 CFR 5.33(d). See also the Change in Bank Control 
Booklet of the Comptroller's Licensing Manual, http://www.occ.treas.gov/corpbook/group3/public/pdf/cbca.pdf.
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    Definition of ``dormant bank''. In the proposal, we described a 
bank that has divested all, or substantially all, of its assets as a 
``dormant bank.'' One commenter suggested that we define this term. By 
``dormant bank,'' we mean a bank that is no longer engaged in core 
banking activities other than on a de minimis basis. This definition 
includes, for example, a bank that has significantly reduced its 
activities and services or that has contracted out significant portions 
of its operations to third-party service providers, other than in the 
ordinary course of the bank's ongoing business. This same definition 
applies to the references to a ``stripped charter'' in the preamble. We 
have not included this definition in the text of the regulation, since 
the term is not used there, but we will include this clarification in 
future revisions to the Comptroller's Licensing Manual that discuss the 
requirements of Sec.  5.53.
    Conforming change to the term ``operating plan''. We received no 
comments on the proposed rule's conforming change to Sec.  5.20 that 
provides that any use of the term ``operating plan'' will be changed to 
``business plan or operating plan''. Therefore, we adopt this change as 
proposed.

IV. Description of the Final Rule

Authority

    New Sec.  5.53(a) sets out the OCC's authority for adopting this 
regulation.\8\
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    \8\ One commenter suggested that we remove this paragraph, 
noting that it repeats information already provided at the beginning 
of part 5. We have not adopted this suggestion because the placement 
of this authority paragraph within Sec.  5.53 is consistent with the 
structure of other sections contained in part 5, and assists the 
reader in determining exactly where our authority for this new 
application requirement is found.
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Scope

    Section 5.53(b) describes the scope of applicability of the 
regulation. We have moved to this Scope provision the statement (which 
appeared in the proposal at Sec.  5.53(d)) that this approval 
requirement does not apply to a change in asset composition that the 
bank undertakes in response to direction from the OCC (e.g., in an 
enforcement action pursuant to 12 U.S.C. 1818).
    The proposal also excepted from the Sec.  5.53 approval requirement 
changes in asset composition undertaken pursuant to a statute or 
regulation that requires prior OCC review or approval. The proposal 
cited voluntary liquidations undertaken pursuant to 12 U.S.C. 181 and 
12 CFR 5.48 as an example illustrating when this exception would apply. 
For the following reasons, we have removed this language and 
substituted a narrower exception that clarifies when the final rule 
applies to voluntary liquidations.
    First, the proposal would have exempted stripped charters that are 
part of a BMA transaction \9\ from the application requirement of Sec.  
5.53. BMA transactions are the ones that most commonly present the 
situation where a bank changes asset composition pursuant to a statute 
or regulation that requires OCC review or approval. However, the BMA 
process focuses on acquiring entities and does not address the concerns 
that may arise when the target bank is a stripped or dormant charter. 
Because the acquisition of a dormant bank charter in a BMA transaction 
likely will result in the revival of business in the dormant charter, 
the transaction presents the same concerns that support adoption of the 
final rule. Accordingly, we have determined that they are appropriately 
covered by new Sec.  5.53.
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    \9\ See 12 U.S.C. 1828(c)(2); 12 CFR 5.33.
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    Second, we have clarified the application of the new approval 
requirement to voluntary liquidations by adding an express exemption 
for a bank that changes its asset composition as part of a voluntary 
liquidation pursuant to 12 U.S.C. 181 and 182 and 12 CFR 5.48, but only 
if the liquidating bank has stipulated in its notice of liquidation to 
the OCC that its liquidation will be completed, the bank dissolved, and 
its charter returned to the OCC within one year of the date it filed 
this notice, unless the OCC extends the time period. This change 
eliminates the Sec.  5.53 application process for those voluntary 
liquidations that will not result in a dormant bank charter of 
indefinite duration, while retaining OCC review for those liquidations 
that are most likely to pose safety and soundness concerns.
    Thus, we have concluded that the most common transactions involving 
a stripped or dormant bank charter should be subject to the Sec.  5.53 
application requirement because they are likely to present the concerns 
that have prompted this rulemaking. So do voluntary liquidations, 
unless it is clear that the liquidating bank will give up its charter 
by a date certain. We think it is unlikely that changes in asset 
composition will be undertaken pursuant to statutes or regulations 
other than the BMA (and our implementing regulation) or the voluntary 
liquidation statute (and our implementing regulation). Accordingly, we 
have determined that it is unnecessary to retain the exemption as 
originally proposed.
    For reasons described in our discussion of the comments, we have 
also changed this scope provision to clarify that the new application 
requirement does not apply to a change in composition of assets that is 
part of a bank's ordinary and ongoing business of originating and 
securitizing loans.

Application Requirement

    Section 5.53(c) contains the new application requirement. It 
requires a national bank to obtain the OCC's prior written approval 
before changing the composition of all, or substantially all, of its 
assets: (1) Through sales or other dispositions, or (2) after having 
sold or disposed of all, or substantially all, of its assets, through 
subsequent purchases or other acquisitions or other expansions of its 
operations.
    The final rule adds the reference to ``other expansions'' of a 
national bank's operations. The proposal provided that a national bank 
with a dormant charter must file an application and obtain the prior 
written approval of the OCC ``before changing the composition of all, 
or substantially all, of its assets, through subsequent purchases or 
other acquisitions.'' This language could have been misread to cover 
only acquisitions of assets from third parties. We intended the word 
``acquisitions'' to be read broadly, however. A national bank with a 
dormant charter could restart operations by obtaining--``acquiring''--
assets through any means, including generating new assets through the 
bank's own efforts. For example, we intended that a national bank with 
a dormant charter that restarts business by first taking new deposits 
and then using those deposits to fund new assets would be covered by 
the application requirement in Sec.  5.53. The language in the final 
rule more clearly indicates this result.
    Section 5.53(c)(2) provides that when reviewing an application 
filed under this section, the OCC will consider the purpose of the 
transaction, its impact on the safety and soundness of the bank, and 
any effect on the bank's customers, and that we may deny the 
application if the transaction would have a negative effect in any such 
respect. In addition, Sec.  5.53(c)(2) provides that our review of any 
changes in the asset composition of a dormant bank, through purchase or 
other acquisition or other expansions of its operations under Sec.  
5.53(c)(1)(ii), will include, in addition to the foregoing

[[Page 50297]]

factors, the factors governing the organization of a de novo bank under 
Sec.  5.20.\10\
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    \10\ See 12 CFR 5.20. When evaluating an application to 
establish a de novo bank, we consider whether the proposed bank: (1) 
Has organizers who are familiar with national banking laws and 
regulations; (2) Has competent management, including a board of 
directors, with ability and experience relevant to the types of 
services to be provided; (3) Has capital that is sufficient to 
support the projected volume and type of business; (4) Can 
reasonably be expected to achieve and maintain profitability; and 
(5) Will be operated in a safe and sound manner. In addition, Sec.  
5.20(f) provides that we also may consider additional factors listed 
in section 6 of the Federal Deposit Insurance Act, 12 U.S.C. 1816, 
including the risk to the Federal deposit insurance fund, and 
whether the proposed bank's corporate powers are consistent with the 
purposes of the Federal Deposit Insurance Act and the National Bank 
Act (12 U.S.C. 1 et seq.).
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    As we indicated in the preamble to the proposed rule, a national 
bank that has disposed of all or substantially all of its assets before 
the effective date of this regulation must comply with the prior 
approval requirement before it purchases or otherwise acquires new 
assets or expands its operations after this regulation takes effect. We 
have reworded the second sentence in Sec.  5.53(c)(2) slightly to make 
it clear that the applicability of the de novo factors for renewed 
asset activity is unaffected by whether the bank had previously 
obtained the OCC's approval to dispose of its assets.
    As indicated in the preamble to the proposed rule, the reasons for 
the proposed decrease in asset size, future plans for the bank charter 
(including any plans for liquidation), future asset growth, future 
plans to market or sell the charter, and future business plans, as 
applicable, will be relevant to our review of an application to dispose 
of all, or substantially all, of a bank's assets. In addition, 
depending on the circumstances presented in the bank's application, our 
approval of the bank's disposition of all, or substantially all, of its 
assets will address how long the dormant charter may continue, and 
could include a requirement that the bank submit a plan of liquidation.
    In reviewing an application in connection with an increase in the 
assets of a stripped charter, we also will consider the bank's future 
business plan and whether this plan involves activities that 
significantly deviate from the bank's original business plan or 
operations prior to its stripped status. Furthermore, we will consider 
the applicant's staffing plans, plans for oversight of the activity 
within the bank, and accountability to the board of directors, along 
with the applicant's plans to acquire, develop, or modify internal 
control systems adequate to monitor the new activity.

Public Procedures

    Section 5.53(d) provides that the public procedures otherwise 
prescribed by subpart A of part 5 do not apply to applications filed 
pursuant to Sec.  5.53, unless the OCC determines that some or all of 
those procedures should apply because of the significance or novelty of 
the issues presented by a particular application.

Conforming Change in Terminology

    The final rule also makes a conforming change to Sec.  5.20 to 
provide that any use of the term ``operating plan'' or ``operating 
plans'' will be changed to ``business plan or operating plan'' or 
``business plans or operating plans,'' as appropriate.

V. Regulatory Analysis

A. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act, the 
Comptroller of the Currency certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities. This final rule will impose minimum burden on only a small 
number of national banks, regardless of asset size.

B. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 
104-4 (Unfunded Mandates Act) requires that an agency prepare a 
budgetary impact statement before promulgating a rule that includes a 
Federal mandate that may result in expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. If a budgetary impact statement is 
required, section 205 of the Unfunded Mandates Act also requires an 
agency to identify and consider a reasonable number of regulatory 
alternatives before promulgating a rule. The OCC has determined that 
this final rule will not result in expenditures by State, local, or 
tribal governments or by the private sector of $100 million or more. 
Accordingly, the OCC has not prepared a budgetary impact statement or 
specifically addressed the regulatory alternatives considered.

C. Executive Order 12866

    The Comptroller of the Currency has determined that this final rule 
does not constitute a ``significant regulatory action'' for the 
purposes of Executive Order 12866.

D. Paperwork Reduction Act of 1995

    In accordance with the requirements of the Paperwork Reduction Act 
of 1995, the OCC may not conduct or sponsor, and a respondent is not 
required to respond to, an information collection unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
The information collection requirements contained in this final rule 
have been reviewed and approved by the OMB under OMB Control Number 
1557-0014.
    The information collection requirements are contained in Sec.  
5.53. Section 5.53 requires a national bank to submit an application to 
the OCC before changing the composition of all, or substantially all, 
of its assets through sales or other dispositions or, having sold or 
disposed of all or substantially all of its assets, through subsequent 
purchases or other acquisitions. The time per response to complete an 
application is estimated to be five hours and the number of respondents 
is estimated to be five national banks. The OMB approved burden as 
follows:
    The likely respondents are national banks.
    Estimated number of respondents: 5.
    Estimated number of responses: 5.
    Estimated total burden hours per response: 5 hours.
    Estimated total annual burden hours: 25 hours.

List of Subjects in 12 CFR Part 5

    Administrative practice and procedure, National banks, Reporting 
and recordkeeping requirements.

Authority and Issuance

0
For the reasons set forth in the preamble, part 5 of chapter I of title 
12 of the Code of Federal Regulations is amended as follows:

PART 5--RULES, POLICIES, AND PROCEDURES FOR CORPORATE ACTIVITIES

0
1. The authority citation for part 5 is revised to read as follows:

    Authority: 12 U.S.C. 1 et seq., 24a, 24 (Seventh), 93a, 1818, 
and 3101 et seq.


Sec.  5.20  [Amended]

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2. In Sec.  5.20, revise all references to ``operating plan'' or 
``operating plans'' to read ``business plan or operating plan'' or 
``business plans or operating plans,'' as appropriate.

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3. In Subpart D--Other Changes in Activities and Operations, a new 
Sec.  5.53 is added to read as follows:


Sec.  5.53  Change in asset composition.

    (a) Authority. 12 U.S.C. 93a, 1818.

[[Page 50298]]

    (b) Scope. This section requires a national bank to obtain the 
approval of the OCC before changing the composition of all, or 
substantially all, of its assets through sales or other dispositions, 
or, having sold or disposed of all, or substantially all, of its 
assets, through subsequent purchases or other acquisitions or other 
expansions of its operations. This section does not apply to a change 
in composition of all, or substantially all, of a bank's assets that 
the bank undertakes in response to direction from the OCC (e.g., in an 
enforcement action pursuant to 12 U.S.C. 1818) or as part of a 
voluntary liquidation pursuant to 12 U.S.C. 181 and 182 and 12 CFR 
5.48, if the liquidating bank has stipulated in its notice of 
liquidation to the OCC that its liquidation will be completed, the bank 
dissolved and its charter returned to the OCC within one year of the 
date it filed this notice, unless the OCC extends the time period. This 
section does not apply to changes in asset composition that occur as a 
result of a bank's ordinary and ongoing business of originating and 
securitizing loans.
    (c) Approval requirement. (1) A national bank must file an 
application and obtain the prior written approval of the OCC before 
changing the composition of all, or substantially all, of its assets 
(i) through sales or other dispositions, or, (ii) having sold or 
disposed of all or substantially all of its assets, through subsequent 
purchases or other acquisitions or other expansions of its operations.
    (2) In determining whether to approve an application under 
paragraph (c)(1) of this section, the OCC will consider the purpose of 
the transaction, its impact on the safety and soundness of the bank, 
and any effect on the bank's customers. The OCC may deny the 
application if the transaction would have a negative effect in any of 
these respects. The OCC's review of any change in asset composition 
through purchase or other acquisition or other expansions of its 
operations under paragraph (c)(1)(ii) of this section will include, in 
addition to the foregoing factors, the factors governing the 
organization of a bank under Sec.  5.20.
    (d) Exceptions to Rules of General Applicability. Sections 5.8, 
5.10, and 5.11 do not apply with respect to applications filed pursuant 
to this section. However, if the OCC concludes that an application 
presents significant or novel policy, supervisory, or legal issues, the 
OCC may determine that some or all of the provisions of Sec. Sec.  5.8, 
5.10, and 5.11 apply.

    Dated: August 4, 2004.
John D. Hawke, Jr.,
Comptroller of the Currency.
[FR Doc. 04-18681 Filed 8-13-04; 8:45 am]
BILLING CODE 4810-33-P