[Federal Register Volume 69, Number 214 (Friday, November 5, 2004)]
[Rules and Regulations]
[Pages 64478-64482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24735]


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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 5

[Docket No. 04-23]
RIN 1557-AC81


Rules, Policies, and Procedures for Corporate Activities; Annual 
Report on Operating Subsidiaries

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 12 CFR part 5 to require a national bank to file an Annual 
Report on Operating Subsidiaries (Annual Report) with the OCC. The 
Annual Report will identify the national bank's operating subsidiaries 
that do business directly with consumers and that are not functionally 
regulated. The Annual Report will include certain information about 
each operating subsidiary, such as the name of the operating 
subsidiary, its location and contact information, and the operating 
subsidiary's lines of business. The OCC will make this information 
available to the public on its Web site at http://www.occ.gov in order 
to assist consumers in identifying entities that are national bank 
operating subsidiaries.

DATES: Effective Date: December 6, 2004.

FOR FURTHER INFORMATION CONTACT: Stuart E. Feldstein, Assistant 
Director, Legislative and Regulatory Activities, (202) 874-5090; 
Patrick T. Tierney, Attorney, Legislative and Regulatory Activities, 
(202) 874-5090; or Stephen A. Lybarger, Director of Licensing 
Activities, (202) 874-5060, Office of the Comptroller of the Currency, 
250 E Street, SW., Washington, DC 20219.

SUPPLEMENTARY INFORMATION:

Background

    On March 25, 2004, the OCC published a notice of proposed 
rulemaking (NPRM) (69 FR 15260) in the Federal Register to require each 
national bank to file an Annual Report on Operating Subsidiaries 
(Annual Report) with the OCC. The Annual Report identifies the bank's 
operating subsidiaries that do business directly with consumers and are 
not functionally regulated \1\ as defined in section 5(c)(5) of the 
Bank Holding Company Act of 1956, as amended (12 U.S.C. 1844(c)(5)). 
The NPRM required a national bank to provide information including the 
name of each operating subsidiary, its location and contact 
information, and the operating subsidiary's lines of business. The NPRM 
also discussed how the OCC would make the information available to the 
public on its Web site.
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    \1\ A subsidiary is a ``functionally regulated'' subsidiary if 
under section 5(c)(5) of the Bank Holding Company Act of 1956, as 
amended, it is a broker or dealer that is registered under the 
Securities Exchange Act of 1934; a registered investment adviser, 
properly registered by or on behalf of either the Securities and 
Exchange Commission or any State, with respect to the investment 
advisory activities of such investment adviser and activities 
incidental to such investment advisory activities; an investment 
company that is registered under the Investment Company Act of 1940; 
an insurance company, with respect to insurance activities of the 
insurance company and activities incidental to such insurance 
activities, that is subject to supervision by a State insurance 
regulator; or an entity that is subject to regulation by the 
Commodity Futures Trading Commission, with respect to the 
commodities activities of such entity and activities incidental to 
such commodities activities. See 12 U.S.C. 1844(c)(5)(B)(i)-(v).
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Overview of Comments Received

    The NPRM comment period closed on April 26, 2004, and we received 
15 comments. Commenters included national banks, state agencies, 
banking trade associations, a realtor trade association, and community 
groups. The majority of the commenters expressing a view generally 
supported the NPRM.\2\ Several commenters offered specific suggestions 
for refining the information contained in the Annual Report. A summary 
of the comments and a description of the final rule follow.
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    \2\ Three commenters asserted objections to the OCC's previous 
rules relating to visitorial powers and preemption. See 69 FR 1895 
(visitorial powers) and 69 FR 1904 (preemption) (Jan. 13, 2004). 
These comments are beyond the scope of the current rulemaking, and, 
accordingly we do not address them here. One commenter noted that 
many states have laws that require operating subsidiaries to provide 
consumers with information about where to direct questions and 
complaints, including the appropriate state supervisory authority. 
This commenter asserted that the proposal would preempt these types 
of state disclosure requirements. We note that this final rule is an 
administrative reporting requirement and has no independent 
preemptive effect on state or local disclosure requirements. 
Questions about the applicability of such requirements are governed 
by the OCC's final preemption rule and Federal judicial preemption 
precedents.
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Summary of Comments and OCC Response

Filing Requirement (Sec.  5.34(e)(6)(i))

    The NPRM required each national bank to prepare and file with the 
OCC an Annual Report for each of its operating subsidiaries that are 
not functionally regulated within the meaning of section 5(c)(5) of the 
Bank Holding Company Act of 1956, as amended (12 U.S.C. 1844(c)(5)) and 
that do business directly with consumers in the United States. The NPRM 
stated that an operating subsidiary ``does business directly with 
consumers'' if it provides products or services to individuals to be 
used primarily for personal, family, or household purposes.
    Several commenters suggested revisions to, or sought clarification 
of, the proposed filing requirement. For example, one commenter 
suggested that the final rule should not apply to an operating 
subsidiary that provides products or services to commercial entities 
and only incidentally to consumers. We agree with the commenter that a 
business transaction with a consumer that is not otherwise part of the 
bank's ordinary course of business should not trigger this reporting 
requirement. Therefore, the final rule provides that a national bank 
operating subsidiary does business with consumers in the United States 
if, in the ordinary course of its business, it provides products or 
services to individuals to be used primarily for personal, family, or 
household purposes. Thus, for example, an operating subsidiary is not 
covered by this reporting requirement when it is engaged in the 
business of leasing

[[Page 64479]]

equipment or other property to businesses, and, as an accommodation, 
leases a piece of equipment to an officer or director of a company.
    Another commenter questioned whether the reporting requirement 
would apply to a second-tier subsidiary that does business directly 
with consumers where the first-tier operating subsidiary does not. The 
OCC confirms that the reporting requirement applies to the second-tier 
operating subsidiary in this example. The final rule covers any 
operating subsidiary of a national bank that is not functionally 
regulated and does business directly with consumers.
    One commenter asked for clarification as to whether a national bank 
must include on its Annual Report an operating subsidiary that only 
engages in the business of servicing consumer mortgage loans, where the 
operating subsidiary is not involved with the initial credit decisions 
or funding of any loans. The final rule's definition of ``doing 
business directly with consumers'' includes providing products or 
services to consumers. Since an operating subsidiary that engages 
solely in mortgage servicing provides services for consumers (e.g., pay 
off information, payment processing and accounting, customer service, 
escrow administration), a national bank must include this type of 
operating subsidiary on its Annual Report.
    A few commenters suggested that national banks should also report 
information on operating subsidiaries that are functionally regulated 
by another state or federal regulatory agency. The Gramm-Leach-Bliley 
Act of 1999 put in place a framework for the functional regulation of 
bank subsidiaries and affiliates by amending section 5(c) of the Bank 
Holding Company Act of 1956 (12 U.S.C. 1844(c)) and adding section 45 
to the Federal Deposit Insurance Act (12 U.S.C. 1831v).\3\ Under that 
framework, another regulatory agency has primary supervisory authority 
over a national bank's functionally regulated subsidiary. For example, 
a state insurance regulator would have supervisory authority in the 
case of a subsidiary that sells insurance products. In this example, 
the state insurance regulator is the appropriate agency to receive 
consumer complaints.
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    \3\ The amendments to section 5(c) of the Bank Holding Company 
Act set out, among other things, the limited circumstances when 
reports may be required from, and examinations can be made of, a 
functionally regulated subsidiary. Section 45 imposes certain limits 
on the OCC's authority to examine, or require reports from, 
subsidiaries that are ``functionally regulated.''
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    The OCC continues to believe that the agency with primary 
supervisory authority should be the consumer's first point of contact 
for any complaints. Thus, a national bank need not include on the 
Annual Report information about any functionally regulated operating 
subsidiary that engages only in functionally regulated activities that 
are regulated by a primary supervisor other than the OCC. However, in 
order to assist consumers in locating information concerning 
functionally regulated subsidiaries and other entities that may be 
regulated by other State or Federal supervisory authorities, the OCC 
plans to provide contact information for these other regulators on its 
public Web site.
    Another commenter recommended that the final rule permit a national 
bank to file an Annual Report on any number of operating subsidiaries 
even if the rule does not require the filing of information about 
operating subsidiaries that are functionally regulated by another 
agency or that do not do business directly with consumers. We believe 
that, at this time, a national bank should only file the required 
information for its operating subsidiaries that are expressly covered 
by the rule. Focusing only on those operating subsidiaries that do 
business directly with consumers will minimize confusion and better 
assist customers in identifying whether the entity they are doing 
business with is related to a national bank.

Information Required (Sec.  5.34(e)(6)(ii))

    The NPRM required the Annual Report to contain:
     The name and charter number of the parent national bank;
     The name, mailing address (including the street address or 
post office box, city, state, and zip code), and telephone number of 
the operating subsidiary;
     The principal place of business of the operating 
subsidiary, if different from its reported mailing address; and
     The lines of business in which the operating subsidiary is 
engaged by designating the appropriate code contained in appendix B 
(Federal Reserve Board Activity Codes) to the General Instructions for 
filing the Report of Changes in Organizational Structure, Form FR Y-10. 
If the operating subsidiary is engaged in an activity not set forth in 
this list, the national bank would use the code 0000 and provide a 
brief description of the activity.
    One commenter suggested that the OCC include, in addition to the 
name of the operating subsidiary, any ``doing business as'' (dba), 
abbreviated, or trade names. We agree that this change would remove 
confusion and help direct consumers to the appropriate entity. 
Therefore, the final rule requires that national banks report an 
operating subsidiary's name, including any dba, abbreviated, or trade 
names that are used to identify the operating subsidiary when it does 
business directly with consumers.
    Another commenter suggested that the OCC require national banks to 
list in the Annual Report all the locations where an operating 
subsidiary's transactions occur or where it conducts business. Given 
consumers' increasing use of electronic channels for obtaining and 
using financial services, such as by telephone and the Internet, the 
physical location of an operating subsidiary's offices is not 
necessarily related to the number or location of the consumers with 
whom it does business. Accordingly, we believe this information is not 
likely to be helpful to consumers who want to know where to file a 
complaint.
    Two commenters addressed the use of the Federal Reserve Board 
Activity Codes to identify operating subsidiary activities. One 
commenter suggested that the NPRM would limit paperwork burden if the 
OCC obtained operating subsidiary information from the Board of 
Governors of the Federal Reserve System (Federal Reserve Board) as that 
information is reported on the Form FR Y-10. Another commenter wrote 
that the FR Y-10 code list is insufficient to describe the range of 
activities authorized by the OCC for national bank operating 
subsidiaries. The commenter suggested that it would be more appropriate 
for the OCC to use a coding system derived from the list of activities 
that are eligible for notice procedures under 12 CFR 5.34(e)(5)(v). As 
we next describe, we have revised the regulation so that the reporting 
codes will align better with the range of activities permissible for 
national bank operating subsidiaries. We continue to believe, however, 
that the use of standardized reporting codes, rather than codes 
tailored only to the national banking system, is preferable because it 
avoids the burden on banks of reporting the same information in 
different ways for different reports.
    The Federal Reserve Board recently replaced its FR Y-10 activity 
code list with the North American Industry Classification System codes 
(NAICS) relevant to the banking industry to describe organizational 
activities.\4\

[[Page 64480]]

National banks are likely to be familiar with the NAICS codes since 
they are required for reporting changes in organizational structure to 
the Federal Reserve Board, reported by national banks that file the 
OCC's Shared Credit Review Report, and used by many national banks to 
identify collateral or for internal business analysis and planning. In 
addition, these NAICS codes are usually more specific and thus more 
accurately describe permissible activities of national bank operating 
subsidiaries. This should make activity information more meaningful to 
consumers. In addition, national banks that are part of a holding 
company that is required to file Form FR Y-10 to report changes in 
operating subsidiary activities will be able to use much of the same 
information in filing their operating subsidiary report with the OCC. 
Accordingly, the final rule requires national banks to report the lines 
of business in which an operating subsidiary is doing business directly 
with consumers by designating the appropriate NAICS code listed in 
appendix B to the Federal Reserve Board's form FR Y-10, Report of 
Changes in Organizational Structure.
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    \4\ NAICS is a system for classifying establishments by type of 
economic activity. Its purposes are to facilitate the collection, 
tabulation, presentation, and analysis of data relating to 
establishments, and to promote uniformity and comparability in the 
presentation and analysis of statistical data describing the 
economy. Federal statistical agencies use NAICS to collect or 
publish data by industry. NAICS also is used widely by State 
agencies, trade associations, private businesses, and other 
organizations. NAICS activity codes that are relevant to the banking 
industry for describing organizational activities are available on 
the OCC Web site at http://www.occ.gov.
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    In a few circumstances, the NAICS may not contain a code that 
describes a particular operating subsidiary activity. The proposal 
permitted a national bank to code as 0000 and include a brief 
description for other activities not included in the FR Y-10 activity 
code list. The final rule retains this provision, but now allows use of 
the 0000 code where the activity is not appropriately covered by a 
NAICS code. The OCC also will provide a link on its public Web site to 
the FR Y-10 data reported to the Federal Reserve Board so that 
consumers can check information on national bank operating subsidiaries 
that are part of a bank holding company structure for a change in 
status after the information is reported to the OCC.

Filing Time Frames and Availability of Information (Sec.  
5.34(e)(6)(iii))

    The NPRM required national banks to file their Annual Reports with 
information current as of March 31st of the year in which the report is 
filed and to submit this information before July 1st of each 
corresponding calendar year. One commenter suggested that the timing of 
the filing requirement should be based on a national bank's fiscal 
year, which would correspond to certain Federal Reserve Board and 
Securities and Exchange Commission filings.
    The OCC believes that aligning the timeframe of this filing 
requirement closely with the Call Report filing requirements reduces 
compliance burden. Therefore, the final rule requires national banks to 
file their Annual Reports by January 31st and to include information as 
of December 31st of the immediate prior year. Thus, the first report 
will be due January 31, 2005, for information as of December 31, 2004. 
A national bank may submit the Annual Report electronically or in 
another format prescribed by the OCC. The OCC plans to issue guidance 
to national banks and Federal branches and agencies that will provide 
more specific information for filing the Annual Report. The OCC will 
make available to the public the information contained in the Annual 
Report on its Web site at http://www.occ.gov.
    We also note that a national bank may not submit partial 
information in the Annual Report to update information contained in 
prior reports. The Annual Report represents a complete list of the 
required information for each operating subsidiary that is not 
functionally regulated and that does business directly with consumers. 
A national bank must include in its Annual Report all of the required 
information for each covered operating subsidiary. The OCC will replace 
the information every year in its entirety.
    A few commenters expressed concern that consumers may have 
difficulty locating the information contained in the Annual Report on 
the OCC public Web site at http://www.occ.treas.gov, particularly if 
they are not aware that the OCC is a bureau of the United States 
Department of the Treasury. In response to this comment, the OCC has 
acquired the http://www.occ.gov Web address and has taken steps to 
acquire other similar Web addresses. This should provide easier access 
to the OCC's public Web site. In addition, as discussed previously, we 
intend to enhance the OCC's Web site to assist consumers in finding 
information about entities that are regulated by other State and 
Federal agencies. Further, the OCC is considering several options to 
enhance consumer awareness of the OCC's Customer Assistance Group \5\ 
such as by use of notices, advertising vehicles, and technological 
solutions. The OCC expects to begin implementing this consumer 
information program in 2005.
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    \5\ The OCC Customer Assistance Group (CAG) answers questions, 
offers guidance, and assists consumers in resolving complaints about 
national banks and their subsidiaries. You can reach one of the OCC 
Customer Assistance Specialists by calling our toll free number, 1-
800-613-6743, or sending an e-mail to 
[email protected]. Since e-mail is not necessarily 
secure against interception, the OCC asks that consumers not include 
sensitive information of a personal or confidential nature--such as 
your bank account, credit card, or social security number-- in their 
e-mails to the CAG.
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Description of Final Rule

    This final rule specifies the Annual Report filing requirement, 
information reported, filing time frames, and public availability of 
the information. This final rule requires each national bank to prepare 
and file with the OCC an Annual Report for each of its operating 
subsidiaries that (1) is not functionally regulated and (2) does 
business directly with consumers in the United States. An operating 
subsidiary, or any subsidiary thereof, ``does business directly with 
consumers'' if, in the ordinary course of its business, it provides 
products or services to individuals to be used primarily for personal, 
family, or household purposes.
    The final rule requires an Annual Report to contain the following 
information:
     The name and charter number of the parent national bank;
     The name (including any ``dba,'' abbreviated names, or 
trade names that are used to identify the operating subsidiary when it 
does business directly with consumers), mailing address (which includes 
the street address or post office box, city, state, and zip code), e-
mail address (if any), and telephone number of the operating 
subsidiary;
     The principal place of business of the operating 
subsidiary, if different from the mailing address; and
     The lines of business in which the operating subsidiary is 
doing business directly with consumers by designating the appropriate 
code contained in appendix B (NAICS Activity Codes for Commonly 
Reported Activities) to the Federal Reserve Board's Instructions for 
Preparation of Report of Changes in Organizational Structure, Form FR 
Y-10, which appears on the OCC's Web site at http://www.occ.gov. If the 
operating subsidiary is engaged in an activity not set forth in this 
list, the national bank should use the code 0000 and provide a brief 
description of the activity.
    This final rule contains specific filing time frames. Each national 
bank's

[[Page 64481]]

Annual Report will contain information current as of December 31st for 
each year the report is filed. A national bank must submit its first 
report to the OCC on or before January 31, 2005, and on or before 
January 31st each year thereafter. A national bank may submit its 
Annual Report electronically or in another format prescribed by the 
OCC. The OCC plans to issue guidance to national banks and Federal 
branches and agencies that will provide more specific information for 
filing the Annual Report. The OCC will make available to the public the 
information contained in the Annual Report on its Web site at http://www.occ.gov.

Regulatory Flexibility Act Analysis

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise 
required under section 604 of the RFA is not required if the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities and publishes its certification 
and a short, explanatory statement in the Federal Register along with 
its rule.
    Pursuant to section 605(b) of the RFA, the OCC hereby certifies 
that this rulemaking will not have a significant economic impact on a 
substantial number of small entities. The OCC has reviewed the impact 
this final rule will have on small national banks. ``Small national 
banks'' are those banks with less than $150 million in total assets. 
Based on that review, the OCC certifies that the final rule will not 
have a significant economic impact on a substantial number of small 
entities. This final rule imposes a minimal annual reporting 
requirement only on national banks with operating subsidiaries that do 
business directly with consumers. The OCC is providing an option for 
institutions to report this information to the OCC electronically. The 
economic impact of this final rule on national banks, regardless of 
size, is not expected to be significant. Accordingly, a regulatory 
flexibility analysis is not needed.

Executive Order 12866

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

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 
104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency 
prepare a budgetary impact statement before promulgating any rule 
likely to result in a Federal mandate that may result in the 
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, and tribal governments, or by the private 
sector, of $100 million or more in any one year. Accordingly, this 
final rule is not subject to section 202 of the Unfunded Mandates Act.

Paperwork Reduction Act

    The Office of Management and Budget (OMB), pursuant to the 
requirements of the Paperwork Reduction Act, approved the paperwork 
burden associated with the final rule under OMB control number 1557-
0014.

Executive Order 13132

    The OCC has determined that this final rule does not have any 
Federalism implications, as required by Executive Order 13132.

List of Subjects in 12 CFR Part 5

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

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. Revise the authority citation for part 5 to read as follows:

    Authority: 12 U.S.C. 1 et seq., 93a, 215a-2, 215a-3, 481, and 
section 5136A of the Revised Statutes (12 U.S.C. 24a).

0
2. In Sec.  5.34, a new paragraph (e)(6) is added to read as follows:


Sec.  5.34  Operating subsidiaries.

* * * * *
    (e)(6) Annual Report on Operating Subsidiaries--(i) Filing 
requirement. Each national bank shall prepare and file with the OCC an 
Annual Report on Operating Subsidiaries containing the information set 
forth in paragraph (e)(6)(ii) of this section for each of its operating 
subsidiaries that:
    (A) Is not functionally regulated within the meaning of section 
5(c)(5) of the Bank Holding Company Act of 1956, as amended (12 U.S.C. 
1844(c)(5)); and
    (B) Does business directly with consumers in the United States. For 
purposes of paragraph (e)(6) of this section, an operating subsidiary, 
or any subsidiary thereof, does business directly with consumers if, in 
the ordinary course of its business, it provides products or services 
to individuals to be used primarily for personal, family, or household 
purposes.
    (ii) Information required. The Annual Report on Operating 
Subsidiaries must contain the following information for each covered 
operating subsidiary listed:
    (A) The name and charter number of the parent national bank;
    (B) The name (include any ``dba'' (doing business as), abbreviated 
names, or trade names used to identify the operating subsidiary when it 
does business directly with consumers), mailing address (include the 
street address or post office box, city, state, and zip code), e-mail 
address (if any), and telephone number of the operating subsidiary;
    (C) The principal place of business of the operating subsidiary, if 
different from the address provided pursuant to paragraph (e)(6)(ii)(B) 
of this section; and
    (D) The lines of business in which the operating subsidiary is 
doing business directly with consumers by designating the appropriate 
code contained in appendix B (NAICS Activity Codes for Commonly 
Reported Activities) to the Instructions for Preparation of Report of 
Changes in Organizational Structure, Form FR Y-10, a copy of which is 
set forth on the OCC's Web site at http://www.occ.gov. If the operating 
subsidiary is engaged in an activity not set forth in this list, a 
national bank shall report the code 0000 and provide a brief 
description of the activity.
    (iii) Filing time frames and availability of information. Each 
national bank's Annual Report on Operating Subsidiaries shall contain 
information current as of December 31st for the year prior to the year 
the report is filed. The national bank shall submit its first Annual 
Report on Operating Subsidiaries (for information as of December 31, 
2004) to the OCC on or before January 31, 2005, and on or before 
January 31st each year thereafter. The national bank may submit the 
Annual Report on Operating Subsidiaries electronically or in another 
format prescribed by the OCC. The OCC will make available to the public 
the information contained in the Annual

[[Page 64482]]

Report on Operating Subsidiaries on its Web site at http://www.occ.gov.

    Dated: October 29, 2004.
Julie L. Williams,
Acting Comptroller of the Currency.
[FR Doc. 04-24735 Filed 11-4-04; 8:45 am]
BILLING CODE 4810-33-P