[Federal Register Volume 74, Number 44 (Monday, March 9, 2009)]
[Proposed Rules]
[Pages 10136-10139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4700]



[[Page 10136]]

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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 4

[Docket ID OCC-2009-0003]
RIN 1557-AD16


Standards Governing the Release of a Suspicious Activity Report

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Office of the Comptroller of the Currency (OCC) is 
proposing to revise its regulations governing the release of non-public 
OCC information. The primary change being proposed would clarify that 
the OCC's decision to release a suspicious activity report (SAR) will 
be governed by the standards set forth in proposed amendments to the 
OCC's SAR regulation that are part of a separate, but simultaneous, 
rulemaking.

DATES: Comments must be received by June 8, 2009.

ADDRESSES: Because paper mail in the Washington, DC area and received 
by the OCC is subject to delay, commenters are encouraged to submit 
comments by the Federal eRulemaking Portal or e-mail, if possible. 
Please use the title ``SAR Release Standards'' to facilitate the 
organization and distribution of the comments. You may submit comments 
by any of the following methods:
    Federal eRulemaking Portal--``Regulations.gov'': Go to http://www.regulations.gov, under the ``More Search Options'' tab click next 
to the ``Advanced Docket Search'' option where indicated, select 
``Comptroller of the Currency'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0003'' 
to submit or view public comments and to view supporting and related 
materials for this notice of proposed rulemaking. The ``How to Use This 
Site'' link on the Regulations.gov home page provides information on 
using Regulations.gov, including instructions for submitting or viewing 
public comments, viewing other supporting and related materials, and 
viewing the docket after the close of the comment period.
     E-mail: [email protected].
     Mail: Office of the Comptroller of the Currency, 250 E 
Street, SW., Mail Stop 2-3, Washington, DC 20219.
     Fax: (202) 874-5724.
     Hand Delivery/Courier: 250 E Street, SW., Mail Stop 2-3, 
Washington, DC 20219.
    Instructions: You must include ``OCC'' as the agency name and 
``Docket Number OCC-2009-0003'' in your comment. In general, OCC will 
enter all comments received into the docket and publish them on the 
Regulations.gov Web site without change, including any business or 
personal information that you provide such as name and address 
information, e-mail addresses, or phone numbers. Comments received, 
including attachments and other supporting materials, are part of the 
public record and subject to public disclosure. Do not enclose any 
information in your comment or supporting materials that you consider 
confidential or inappropriate for public disclosure.
    You may review comments and other related materials that pertain to 
this notice of proposed rulemaking by any of the following methods:
     Viewing Comments Electronically: Go to http://www.regulations.gov, under the ``More Search Options'' tab click next 
to the ``Advanced Document Search'' option where indicated, select 
``Comptroller of the Currency'' from the agency drop-down menu, then, 
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0003'' 
to view public comments for this rulemaking action.
     Viewing Comments Personally: You may personally inspect 
and photocopy comments at the OCC, 250 E Street, SW., Washington, DC. 
For security reasons, the OCC requires that visitors make an 
appointment to inspect comments. You may do so by calling (202) 874-
4700. Upon arrival, visitors will be required to present valid 
government-issued photo identification and submit to security screening 
in order to inspect and photocopy comments.
     Docket: You may also view or request available background 
documents and project summaries using the methods described above.

FOR FURTHER INFORMATION CONTACT: James Vivenzio, Senior Counsel for 
BSA/AML, (202) 874-5200; Ellen Warwick, Assistant Director, Litigation, 
(202) 874-5280; or Patrick Tierney, Senior Attorney, Legislative and 
Regulatory Activities, (202) 874-5090; Office of the Comptroller of the 
Currency, 250 E Street, SW., Washington, DC 20219.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The OCC is proposing to amend its regulations set forth in 12 CFR 
part 4, subpart C, governing the release of non-public OCC information. 
First, the proposed amendments conform subpart C to amendments to the 
OCC's SAR confidentiality rule, 12 CFR 21.11(k), that are being 
proposed as part of a separate, but simultaneous, rulemaking that the 
OCC is conducting together with the Financial Crimes Enforcement 
Network (FinCEN) and is published elsewhere in this issue of the 
Federal Register. Under the standards that the OCC is proposing to 
incorporate into part 4, the OCC will only release a SAR, or any 
information that would reveal the existence of a SAR (referred to in 
this preamble as ``SAR information'') when ``necessary to fulfill 
official duties consistent with Title II of the Bank Secrecy Act'' 
(BSA). The proposed standards also state that ``official duties'' does 
not include the disclosure of SAR information for use in a private 
legal proceeding or a request under Sec.  4.33. Thus, one effect of 
these proposed amendments is that the OCC will not release SAR 
information in response to a request from a private litigant arising 
out of a private legal proceeding.
    In addition to the clarification of the standards governing the 
release of SAR information, the proposed amendments to subpart C also 
clarify that the OCC will deny a request for non-public information 
made under 12 CFR 4.33, if the release is prohibited by law. Finally, 
the amendments include a technical correction to Sec.  4.37 that is 
described in section III of this SUPPLEMENTARY INFORMATION.

II. Background

    As described in greater detail below, this proposal amends part 4 
to make subpart C consistent with the proposed amendments to the OCC's 
SAR regulation that implement section 351 of the USA PATRIOT Act, to 
ensure that the appropriate standard is applied to the OCC's disclosure 
of SAR information. 12 CFR part 4, subpart C, contains the OCC's 
standards and procedures for the release of ``non-public OCC 
information,'' and sets forth the restrictions on the dissemination of 
such information. Generally, ``non-public OCC information'' is 
confidential and privileged information that is the property of the 
OCC, and that the OCC is not required to release under the Freedom of 
Information Act (5 U.S.C. 552 et seq.) or that the OCC has not yet 
published or made available pursuant to 12 U.S.C. 1818(u), the statute 
requiring publication of certain enforcement orders. Examples in 
subpart C of ``non-public OCC information'' currently include ``a SAR 
filed by the OCC, a national bank, or a Federal branch or agency of a 
foreign bank licensed or

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chartered by the OCC under 12 CFR 21.11.'' \1\
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    \1\ See 12 CFR 4.32(b)(vii)
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    Subpart C generally describes procedures for requesting non-public 
OCC information from the OCC, such as where to submit a request, the 
form of the request, information that must be included in any request 
involving an adversarial matter, and various bases for the OCC's denial 
of such a request.\2\ Subpart C also authorizes the OCC to make non-
public OCC information available to a supervised entity and to other 
persons, at the sole discretion of the Comptroller, without a request 
for records or testimony,\3\ and sets forth the OCC's policy regarding 
the release of non-public OCC information to other government agencies 
in response to a request.\4\ Subpart C also describes the conditions 
and limitations that the OCC may place on information it discloses 
under subpart C.
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    \2\ See 12 CFR 4.33-4.35.
    \3\ See 12 CFR 4.36.
    \4\ See 12 CFR 4.37(c).
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    Although SARs fall within the definition of ``non-public OCC 
information,'' the release of a SAR is governed by standards set forth 
in the BSA. The BSA and its implementing regulations require a 
financial institution to file a SAR when it detects a known or 
suspected violation of Federal law or a suspicious activity related to 
money laundering, terrorist financing, or other criminal activity.\5\ 
SARs generally are unsubstantiated reports of possible violations of 
law or of suspicious activities that are used for law enforcement or 
regulatory purposes. The BSA provides that a financial institution, and 
its officers, directors, employees, and agents are prohibited from 
notifying any person involved in a suspicious transaction that the 
transaction was reported.\6\ More importantly, in 2001, section 351 of 
the USA PATRIOT Act added a new provision to the BSA prohibiting 
officers or employees of the Federal government or any State, local, 
tribal, or territorial government within the United States from 
disclosing to any person \7\ involved in a suspicious transaction that 
the transaction was reported, other than as necessary to fulfill the 
official duties of such officer or employee.\8\ Accordingly, it is this 
provision that now governs the ability of the OCC to disclose SAR 
information to any person.
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    \5\ 31 U.S.C. 5318(g)(1).
    \6\ 31 U.S.C. 5318(g)(2)(A)(i).
    \7\ The phrase ``any person involved in the transaction'' has 
been construed to apply to ``any person'' because the disclosure of 
SAR information to any outside party may make it likely that SAR 
information would be disclosed to a person involved in the 
transaction, which is expressly prohibited by the BSA. See Cotton v. 
Private Bank and Trust Co., 235 F. Supp. 2d 809, 815 (N.D. Ill. 
2002).
    \8\ See USA PATRIOT Act, section 351(b). Pub. L. 107-56, Title 
III, section 351, 115 Stat. 272, 321(2001).
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    In 1999, the OCC amended the examples in its definition of ``non-
public OCC information'' to explicitly include a SAR filed by the OCC 
or a supervised entity, making SARs subject to the procedures for the 
release of non-public OCC information set forth in part 4.\9\ The 
preamble to the final rule explained ``while the OCC has always taken 
the position that SARs are non-public information, the OCC was 
proposing this change to enhance the ability of banks and the OCC to 
protect SARs from being disclosed when SARs are sought by private 
litigants.'' \10\ Later, the preamble explains that SARs were being 
added to the list of examples of non-public OCC information ``to 
protect the confidentiality of SARs further, particularly in 
litigation, not to make them more easily disclosable.'' \11\
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    \9\ 64 FR 29214 (June 1, 1999).
    \10\ 64 FR 29215 (June 1, 1999).
    \11\ 64 FR 29216 (June 1, 1999).
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    The OCC is revisiting the treatment of SAR information in subpart C 
in light of the 2001 amendments to the BSA, added by section 351 of the 
USA PATRIOT Act, that specifically address governmental disclosures of 
SARs. Under the proposed amendments to subpart C, the OCC will decide 
whether to release SAR information based upon the standard in the OCC's 
proposed amendments to its SAR rules, 12 CFR 21.11(k), implementing 
section 351, rather than upon any of the factors set out in subpart 
C.\12\ The standard in the proposed amendments to the OCC's SAR rules 
provides that the OCC will not, and an officer, employee or agent of 
the OCC, shall not, disclose SAR information except as necessary to 
fulfill official duties consistent with Title II of the BSA. In 
addition, the standard provides that ``official duties'' shall not 
include the disclosure of SAR information in response to a request for 
use in a private legal proceeding or in response to a request for 
disclosure of non-public information under 12 CFR 4.33.
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    \12\ See, e.g., 12 CFR 4.33.
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    The proposed SAR rules interpret ``official duties'' as ``official 
duties consistent with the purposes of Title II of the BSA,'' meaning, 
official disclosures necessary to accomplish a governmental purpose 
entrusted to the agency, the officer, or employee, consistent with the 
purposes of Title II of the BSA, namely, for ``criminal, tax, or 
regulatory investigations or proceedings, or in the conduct of 
intelligence or counterintelligence activities, including analysis, to 
protect against international terrorism.'' \13\ This standard would 
permit, for example, disclosures responsive to a grand jury subpoena; a 
request from an appropriate Federal or State law enforcement or 
regulatory agency; a request from an appropriate Congressional 
committee or subcommittee; and prosecutorial disclosures mandated by 
statute or the Constitution in connection with the statement of a 
government witness to be called at trial, the impeachment of a 
government witness, or as material exculpatory of a criminal 
defendant.\14\
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    \13\ 31 U.S.C. 5311 (setting forth the purposes of the BSA).
    \14\ See, e.g., Giglio v. United States, 405 U.S. 150, 153-54 
(1972); Brady v. State of Maryland, 373 U.S. 83, 86-87 (1963); 
Jencks v. United States, 353 U.S. 657, 668 (1957).
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III. Section-by-Section Description of the Proposal

Section 4.31(b)(4) Purpose and Scope

    Subpart C currently includes several standards for the release of 
non-public OCC information. A person seeking non-public OCC information 
generally must submit a request in writing to the OCC that addresses 
the factors set forth in Sec.  4.33. Section 4.35 describes how the OCC 
will make its determination to release the information, and contains an 
illustrative list of possible bases for denial of a request.\15\ 
Section 4.36(a) provides that the OCC may release information to a 
supervised entity or any person, even without a request, at the 
discretion of the Comptroller when necessary or appropriate. In 
addition, the scope section of subpart C makes clear that Sec.  4.37(c) 
applies to requests for non-public OCC information from Federal and 
foreign governments and state agencies with authority to investigate 
violations of criminal law, and state bank regulatory agencies.\16\ 
Section 4.37(c) states that, when not prohibited by law, the 
Comptroller may make non-public OCC information available to these 
governmental entities for their use, when necessary in the performance 
of their official duties.
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    \15\ See 12 CFR 4.35(a)(2).
    \16\ See 12 CFR 4.31(b)(3).
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    This proposal adds a new paragraph (b)(4) to 12 CFR 4.31, the scope 
section of subpart C, which states that the OCC's decision to disclose 
records or testimony involving SAR information for purposes of 12 CFR 
4.35(a)(1), 4.36(a), and 4.37(c), is governed solely by the standard in 
12 CFR 21.11(k). Accordingly, the Comptroller's

[[Page 10138]]

discretion to disclose SAR information to any person or entity without 
a request under Sec.  4.36, and the OCC's determination to disclose SAR 
information in response to a request for use in private litigation 
under Sec.  4.33 or to another government agency under Sec.  4.37, will 
be circumscribed by the standard in the proposed amendments to 12 CFR 
21.11(k) prohibiting the disclosure of SAR information ``except as 
necessary to fulfill official duties consistent with Title II of the 
Bank Secrecy Act.'' In accordance with the OCC's longstanding 
commitment to protect the confidentiality of SARs, this proposed 
standard also provides that ``official duties'' does not include the 
disclosure of SAR information in response to a request for use in a 
private legal proceeding or in response to a request for disclosure of 
non-public information under 12 CFR 4.33.

Section 4.32(b) Definition of Non-Public OCC Information

    This proposal amends the definition of ``non-public OCC 
information'' in Sec.  4.32(b) to remove the reference to ``a SAR filed 
by the OCC, a national bank, or a Federal branch or agency of a foreign 
bank licensed or chartered by the OCC under 12 CFR 21.11'' from the 
illustrative list of examples that follow the definition of ``non-
public OCC information.'' SAR information would still be covered by the 
definition of ``non-public OCC information.'' However, the OCC is 
proposing to remove the reference to SARs from the illustrative list 
because highlighting SAR information as an example of non-public OCC 
information would be misleading in light of the amendments to Sec.  
4.31 described in the previous section. As described earlier, under the 
amendments to subpart C, SAR information would become a unique subset 
of non-public OCC information subject to release solely in accordance 
with the standards set forth in 12 CFR 21.11(k).
    Notwithstanding the OCC's deletion of the specific reference to 
SARs as an example of ``non-public OCC information,'' SAR information 
would continue to be otherwise subject to the provisions of subpart C 
that are not superseded by the standards proposed in part 21. For 
example, Sec.  4.37(d), which generally provides that the possession by 
a person of non-public OCC information does not constitute a waiver by 
the OCC of its right to control, or impose limitations on, the use and 
dissemination of the information, would continue to apply to SAR 
information.

Section 4.35(a)(2) Consideration of Requests

    Section 4.35 generally describes how the OCC makes its 
determination to release or to withhold non-public OCC information in 
response to requests received under Sec.  4.33. Section 4.35(a)(2) 
lists five examples of reasons for which the OCC will deny the release 
of non-public OCC information.
    The OCC is proposing to add ``when prohibited by law'' as a sixth 
example of a reason for denial of requests made under Sec.  4.33. This 
addition clarifies that the OCC may deny a request under Sec.  4.33 
when prohibited by law, for example, when the standard in Sec.  
21.11(k) is applicable to a request for SAR information.

Section 4.37(c) Disclosures to Government Agencies

    The proposal also makes a technical correction to Sec.  4.37(c). 
Section 4.37(c) describes the basis for disclosures of non-public OCC 
information to government agencies. The last sentence in Sec.  4.37(c) 
also states that any information that is made available under this 
section is OCC property, and the OCC may condition its use on 
appropriate confidentiality protections, ``including the mechanisms 
identified in Sec.  4.37.'' However, the various mechanisms that 
provide confidentiality protections are identified in Sec.  4.38 of 
subpart C, rather than in Sec.  4.37. Therefore, the OCC is proposing 
to replace the reference to ``Sec.  4.37'' with a reference to ``Sec.  
4.38.''

IV. Request for Comments

    The OCC welcomes comments on any aspect of these proposed 
amendments to the SAR rules.
    The OCC has timed the release of this proposal to coincide with the 
issuance of the proposed rules to amend its SAR confidentiality rules 
set forth in 12 CFR part 21.11(k), so that commenters can consider each 
proposal in commenting on the other.

V. OCC Solicitation of Comments on Use of Plain Language

    Section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, sec. 
722, 113 Stat. 1338, 1471 (Nov. 12, 1999), requires the OCC to use 
plain language in all proposed and final rules published after January 
1, 2000. Therefore, the OCC specifically invites your comments on how 
to make this proposal easier to understand. For example:
     Have we organized the material to suit your needs? If not, 
how could this material be better organized?
     Are the requirements in the proposal clearly stated? If 
not, how could the requirements be more clearly stated?
     Does the proposal contain language or jargon that is not 
clear? If so, which language requires clarification?
     Would a different format make the regulations easier to 
understand? If so, what changes to the format would make them easier to 
understand?
     What else could we do to make the regulations easier to 
understand?

VI. OCC Community Bank Comment Request

    The OCC invites your comments on the impact of this proposal on 
community banks. The OCC recognizes that community banks operate with 
more limited resources than larger institutions and may present a 
different risk profile. Thus, the OCC specifically requests comment on 
the impact of the proposal on community banks' current resources and 
available personnel with the requisite expertise, and whether the goals 
of the proposal could be achieved, for community banks, through an 
alternative approach.

VII. OCC Regulatory Analysis

Regulatory Flexibility Act

    Under section 605(b) of the Regulatory Flexibility Act (RFA), 5 
U.S.C. 605(b), 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.
    The OCC has determined that the proposed amendments will not have a 
significant economic impact on a substantial number of small entities. 
The proposed changes in internal standards, which were prompted by a 
statutory change, will simply affect the nature of the OCC's internal 
deliberations regarding the agency's ability to disclose a SAR. 
Therefore, pursuant to section 605(b) of the RFA, the OCC hereby 
certifies that this proposal will not have a significant economic 
impact on a substantial number of small entities. Accordingly, a 
regulatory flexibility analysis is not needed.

Executive Order 12866

    The OCC has determined that this proposal is not a significant 
regulatory action under Executive Order 12866. The OCC has concluded 
that the proposed change in the OCC's internal

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standards for determining whether a SAR should be disclosed will not 
have an annual effect on the economy of $100 million or more. The OCC 
further concludes that this proposal does not meet any of the other 
standards for a significant regulatory action set forth in Executive 
Order 12866.

Paperwork Reduction Act

    We have reviewed the proposed amendments in accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320, Appendix 
A.1) (PRA) and have determined that they do not contain any 
``collections of information'' as defined by the PRA.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 
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 (adjusted for 
inflation) 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 these proposed amendments, which change 
the standards the OCC will apply when determining whether to release a 
SAR, will not result in expenditures by State, local, and tribal 
governments, or by the private sector, of $100 million or more 
(adjusted for inflation) in any one year. Accordingly, this proposal is 
not subject to section 202 of the Unfunded Mandates Act.

List of Subjects in 12 CFR Part 4

    Administrative practice and procedure, Freedom of information, 
Individuals with disabilities, Minority businesses, Organization and 
functions (Government agencies), Reporting and recordkeeping 
requirements, Women.

Authority and Issuance

    For the reasons set forth in the preamble, part 4, subpart C, of 
title 12 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 4--ORGANIZATION AND FUNCTIONS, AVAILABILITY AND RELEASE OF 
INFORMATION, CONTRACTING OUTREACH PROGRAM, POST-EMPLOYMENT 
RESTRICTIONS FOR SENIOR EXAMINERS

    1. Revise the authority citation for part 4 to read as follows:

    Authority: 12 U.S.C. 93a. Subpart A also issued under 5 U.S.C. 
552. Subpart B also issued under 5 U.S.C. 552; E.O. 12600 (3 CFR 
1987 Comp., p. 235). Subpart C also issued under 5 U.S.C. 301, 552; 
12 U.S.C. 161, 481, 482, 484(a), 1442, 1817(a)(2) and (3), 1818(u) 
and (v), 1820(d)(6), 1820(k), 1821(c), 1821(o), 1821(t), 1831m, 
1831p-1, 1831o, 1867, 1951 et seq., 2601 et seq., 2801 et seq., 2901 
et seq., 3101 et seq., 3401 et seq.; 15 U.S.C. 77uu(b), 78q(c)(3); 
18 U.S.C. 641, 1905, 1906; 29 U.S.C. 1204; 31 U.S.C. 5318(g)(2), 
9701; 42 U.S.C. 3601; 44 U.S.C. 3506, 3510. Subpart D also issued 
under 12 U.S.C. 1833e.

    2. Add Sec.  4.31(b)(4) to read as follows:


Sec.  4.31  Purpose and scope.

* * * * *
    (b) * * *
    (4) For purposes of Sec. Sec.  4.35(a)(1), 4.36(a) and 4.37(c), the 
OCC's decision to disclose records or testimony involving a Suspicious 
Activity Report (SAR) filed pursuant to the regulations implementing 12 
U.S.C. 5318(g), or any information that would reveal the existence of a 
SAR, is governed solely by 12 CFR 21.11(k).
* * * * *


Sec.  4.32  [Amended]

    3. Amend Sec.  4.32(b) by:
    a. Removing paragraph (b)(1)(vii).
    b. Adding the word ``and'' at the end of paragraph (b)(1)(v); and
    c. Removing, at the end of paragraph (b)(1)(vi), ``; and'' and 
adding a period in its place;
    4. Amend Sec.  4.35(a)(2) by:
    a. Removing the word ``or'' at the end of paragraph (a)(2)(iv);
    b. Removing, in paragraph (a)(2)(v), the period and by adding in 
lieu thereof ``; or''; and
    c. Adding a new paragraph (a)(2)(vi) to read as follows:


Sec.  4.35  Consideration of requests.

    (a) * * *
    (2) * * *
    (vi) When prohibited by law.
* * * * *


Sec.  4.37  [Amended]

    5. In paragraph Sec.  4.37(c), remove the reference to ``Sec.  
4.37'' in the last sentence and add in lieu thereof ``Sec.  4.38.''

    Dated: January 22, 2009.
John C. Dugan,
Comptroller of the Currency.
 [FR Doc. E9-4700 Filed 3-6-09; 8:45 am]
BILLING CODE 4810-33-P