[Federal Register Volume 76, Number 102 (Thursday, May 26, 2011)]
[Proposed Rules]
[Pages 30557-30573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12859]



[[Page 30557]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Parts 4, 5, 7, 8, 28, and 34

[Docket ID OCC-2011-0006]
RIN 1557-AD41


Office of Thrift Supervision Integration; Dodd-Frank Act 
Implementation

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

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Office of the Comptroller of the Currency (OCC) is 
proposing to amend its regulations governing organization and 
functions, availability and release of information, and post-employment 
restrictions for senior examiners; and assessment of fees to 
incorporate the transfer of certain functions of the Office of Thrift 
Supervision (OTS) to the OCC pursuant to Title III of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act. The OCC also is 
proposing amendments to its rules pertaining to change in control of 
credit card banks and trust banks to implement section 603 of the Act; 
deposit-taking by uninsured Federal branches to implement section 335 
of the Act; and its preemption and visitorial powers rules, subpart D, 
to implement various sections of the Act.

DATES: Comments must be received on or before June 27, 2011.

ADDRESSES: Because paper mail in the Washington, DC area and at 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 ``OTS Integration; Dodd-Frank Act Implementation'' 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. Select ``Document Type'' of ``Proposed 
Rules,'' and in ``Enter Keyword or ID Box,'' enter Docket ID ``OCC-
2011-0006'' and click ``Search.'' On ``View By Relevance'' tab at 
bottom of screen, in the ``Agency'' column, locate the Notice of 
Proposed Rulemakings for OCC, in the ``Action'' column, click on 
``Submit a Comment'' or ``Open Docket Folder'' to submit or view public 
comments and to view supporting and related materials for this 
rulemaking action.
     Click on the ``Help'' tab on the Regulations.gov home page 
to get 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) 874-5274.
     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 ID OCC-2011-0006'' 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. Select ``Document Type'' of ``Public 
Submissions,'' in ``Enter Keyword or ID Box,'' enter Docket ID ``OCC-
2011-0006,'' and click ``Search.'' Comments will be listed under ``View 
By Relevance'' tab at bottom of screen.
     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 to 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: Andra Shuster, Special Counsel, Heidi 
Thomas, Special Counsel, or Stuart Feldstein, Director, Legislative and 
Regulatory Activities Division, (202) 874-5090; Timothy Ward, Deputy 
Comptroller for Thrift Supervision, (202) 874-4468; or Frank Vance, 
Manager, Disclosure Services and Administrative Operations, 
Communications Division, (202) 874-5378, Office of the Comptroller of 
the Currency, 250 E Street, SW., Washington, DC 20219.

SUPPLEMENTARY INFORMATION:

I. Background

    On July 21, 2010, President Barack Obama signed into law the Dodd-
Frank Wall Street Reform and Consumer Protection Act, Public Law 111-
203, 124 Stat. 1376 (2010) (Dodd-Frank Act or Act). As part of the 
comprehensive package of financial regulatory reform measures enacted, 
Title III of the Dodd-Frank Act transfers the powers, authorities, 
rights and duties of the Office of Thrift Supervision to other banking 
agencies, including the OCC, on the ``transfer date.'' The transfer 
date is one year after the date of enactment of the Dodd-Frank Act, 
July 21, 2011 (unless extended in accordance with the provisions of the 
legislation). The Dodd-Frank Act also abolishes the OTS ninety days 
after the transfer date.
    Title III of the Dodd-Frank Act transfers to the OCC all functions 
of the OTS and the Director of the OTS relating to Federal savings 
associations. As a result, the OCC will assume responsibility for the 
ongoing examination, supervision, and regulation of Federal savings 
associations.\1\ The Act also transfers to the OCC rulemaking authority 
of the OTS relating to all savings associations, both state and 
Federal.\2\ The legislation continues in effect all OTS orders, 
resolutions, determinations, agreements, regulations, interpretive 
rules, other interpretations, guidelines, procedures and other advisory 
materials in effect the day before the transfer date, and allows the 
OCC to enforce these issuances with respect to Federal savings 
associations, unless the OCC modifies, terminates, or sets aside such 
guidance or until superseded by the OCC, a court, or operation of 
law.\3\ Title III also transfers OTS employees to either the OCC or 
FDIC, allocated as necessary to perform or support the OTS

[[Page 30558]]

functions transferred to the OCC and FDIC, respectively.\4\
---------------------------------------------------------------------------

    \1\ Title III transfers all functions of the OTS relating to 
state savings associations to the Federal Deposit Insurance 
Corporation (FDIC) and all functions relating to the supervision of 
any savings and loan holding company and nondepository institution 
subsidiaries of such holding companies, as well as rulemaking 
authority for savings and loan holding companies, to the Board of 
Governors of the Federal Reserve System (FRB). Dodd-Frank Act, 
section 312(b)(1) and (2)(A) (savings and loan holding companies) 
and (2)(C) (state savings associations).
    \2\ Dodd-Frank Act, section 312(b)(2)(B)(i).
    \3\ Dodd-Frank Act, section 316(b).
    \4\ Dodd-Frank Act, section 322(a). Pursuant to section 322(a), 
the Director of the OTS, the Comptroller of the Currency, and the 
FDIC Chairman will jointly determine the number of OTS employees 
necessary to perform and support the functions transferred to each 
agency. Because most of the OTS's functions, i.e., those relating to 
supervising Federal savings associations and all of the OTS's 
rulemaking authority for Federal and state savings associations, 
will transfer to the OCC on the transfer date, most of the OTS's 
approximately 1,000 employees will transfer to the OCC.
---------------------------------------------------------------------------

II. OCC Regulatory Actions To Integrate OTS Functions

    As part of its preparation for integrating the functions of the OTS 
into the OCC, the OCC is reviewing its regulations, as well as those of 
the OTS, to determine what changes are needed to facilitate a smooth 
regulatory transition. We expect this review to be accomplished in 
several phases. First, the proposed rule that the OCC is issuing today 
includes provisions revising OCC rules that will be central to internal 
agency functions and operations immediately upon the transfer of 
supervisory jurisdiction for Federal saving associations. Such 
revisions include, for example, providing for the OCC's assessment of 
Federal savings associations and adapting the OCC's rules governing the 
availability and release of information to cover information pertaining 
to the supervision of those institutions. These changes are essential 
to facilitate a seamless transition when the OCC assumes responsibility 
for supervising Federal savings associations on the transfer date.
    Also included in this proposal are changes to the OCC's regulations 
necessary to implement certain revisions to the banking laws that took 
effect on the enactment of the Dodd-Frank Act. These changes include 
revisions to the OCC's change in control rules to implement the 
moratorium on certain changes in control affected by section 603 of the 
Dodd-Frank Act and revisions to our Federal branch and agency rules to 
reflect the permanent increase in deposit insurance provided by section 
335. We plan to publish a final rule resulting from this proposal that 
would be effective on or shortly after the transfer date.
    As part of this first phase of its review of OTS and OCC 
regulations, the OCC also plans to issue an interim final rule with a 
request for comments, effective on the transfer date, that republishes 
those OTS regulations the OCC has the authority to promulgate and will 
enforce as of the transfer date.\5\ These regulations will be moved 
into chapter I of title 12 of the Code of Federal Regulations and 
renumbered accordingly as OCC rules, with nomenclature and other 
technical amendments to reflect OCC supervision. OTS regulations that 
will be unnecessary following the transfer of OTS functions to the OCC, 
or that are superseded as of the transfer date by provisions of the 
Dodd-Frank Act, will be repealed at a later date.
---------------------------------------------------------------------------

    \5\ Section 316(c)(2) of the Dodd-Frank Act requires the OCC 
(along with the FDIC and FRB) to identify those OTS regulations that 
are continued under the Act that each agency will enforce. The OCC 
and FDIC must consult with each other in identifying these 
regulations, and the OCC, FRB, and FDIC must publish a list of these 
identified regulations in the Federal Register not later than the 
transfer date. The OCC is in the process of identifying these OTS 
rules and will publish a notice in the Federal Register in the near 
future.
---------------------------------------------------------------------------

    In future phases of our regulatory review, which will occur 
subsequent to the transfer date, the OCC will consider more 
comprehensive substantive amendments, as necessary, to OTS regulations. 
For example, we may propose to repeal or combine provisions in cases 
where OCC and OTS rules are substantively identical or substantially 
overlap. In addition, we may propose to repeal or modify OCC or OTS 
rules where differences in regulatory approach are not required by 
statute or warranted by features unique to either charter. We expect to 
publish these amendments in one or more notices of proposed rulemaking, 
the first of which would be issued later in 2011.

III. Description of the Proposal

    To incorporate the regulation and supervision of Federal savings 
associations, the OCC is proposing to amend the OCC's rules at 12 CFR 
part 4 pertaining to its organization and functions, the availability 
of information from the OCC under the Freedom of Information Act 
(FOIA), the release of non-public OCC information, and restrictions on 
the post-employment activities of senior examiners; and at 12 CFR part 
8, pertaining to assessments. The OCC also is proposing in this 
rulemaking amendments to 12 CFR parts 5 and 28 to implement sections 
603 and 335 of the Dodd-Frank Act, respectively; and 12 CFR parts 5, 7 
and 34, pertaining to preemption and visitorial powers.
    Set forth below, in numerical order of the parts of our regulations 
to be amended, is a detailed description of the proposed changes.

1. Part 4

a. Part 4, Subpart A--Organization and Functions
    Subpart A of 12 CFR part 4 describes the organization and functions 
of the OCC and provides the OCC's principal addresses. In light of the 
transfer of the powers and duties of the OTS and the OTS Director to 
the OCC and the Comptroller on the transfer date, the OCC proposes to 
amend subpart A to reflect the organizational and functional changes 
resulting from this transfer. Other changes conform this subpart to 
additional provisions of the Dodd-Frank Act.
    Office of the Comptroller of the Currency (Sec.  4.2). Section 4.2 
states that the OCC supervises and regulates national banks and Federal 
branches and agencies of foreign banks. It lists ways in which this 
supervision and regulation is carried out, such as by examining these 
institutions, considering applications for changes in corporate or 
banking structure, and issuing rules pertaining to these institutions.
    Section 312(b)(2)(B) of the Dodd-Frank Act transfers from the OTS 
to the OCC supervisory and regulatory authority over Federal savings 
associations, as well as rulemaking authority for all savings 
associations. Furthermore, section 314 of the Act updates the OCC's 
mission statement set forth at 12 U.S.C. 1 to reflect the OCC's current 
functions. It specifically provides that the OCC is charged with 
assuring the safety and soundness of, and compliance with laws and 
regulations, fair access to financial services, and fair treatment of 
customers by, the institutions and other persons subject to its 
jurisdiction.
    We are proposing to amend Sec.  4.2 to reflect these changes. 
Specifically, we have revised this section to incorporate this mission 
statement; to include Federal savings associations in the list of 
entities that the OCC examines, supervises, and regulates to carry out 
this mission; to provide that the OCC has rulemaking authority for 
state savings associations; and otherwise to streamline the section.
    Comptroller of the Currency (Sec.  4.3). Section 4.3 states that 
the Comptroller of the Currency, as the head of the OCC, is responsible 
for all OCC programs and functions. It also lists certain interagency 
boards and organizations on which the Comptroller, pursuant to statute, 
serves as a member. Section 111(a) of the Dodd-Frank Act establishes 
the Financial Stability Oversight Council (FSOC), with the stated 
purposes of identifying risks to U.S.

[[Page 30559]]

financial stability, promoting market discipline, and responding to 
emerging threats to the financial system's stability.\6\ Section 
111(b)(1)(C) of the Dodd-Frank Act makes the Comptroller of the 
Currency a voting member of the FSOC. The proposed rule amends Sec.  
4.3 by adding the FSOC to the list of organizations on which the 
Comptroller serves as a member.
---------------------------------------------------------------------------

    \6\ Dodd-Frank Act, section 112(a)(1).
---------------------------------------------------------------------------

    Washington office and Web site (Sec.  4.4). Section 4.4 describes 
the role of the OCC's Washington, DC main office and headquarters. It 
states that the Washington office directs OCC policy and operations and 
is responsible for the direct supervision of certain national banks, 
including the largest national banks through its Large Bank Supervision 
Department, as well as other national banks requiring special 
supervision. Pursuant to the Dodd-Frank Act's integration of the OTS 
into the OCC, the proposal makes a conforming change to Sec.  4.4 to 
state that the OCC's Washington headquarters also will have direct 
supervision over certain Federal savings associations, including the 
largest Federal savings associations and those that require special 
supervision, and that large Federal savings associations will be 
overseen by the OCC's Large Bank Supervision Department. In addition, 
we have updated this section to provide that the Washington office also 
is responsible for the supervision of Federal branches and agencies of 
foreign banks and have added a reference to the OCC's Web site.
    District and field offices (Sec.  4.5). Section 4.5 explains the 
role of the OCC's district and field offices. Paragraph (a) states that 
each district office supervises the national banks and Federal branches 
and agencies of foreign banks in its district, except for those 
national banks supervised by the Washington, DC office, and includes a 
chart that provides each district office's address and its geographical 
composition. Paragraph (b) states that OCC's field offices and duty 
stations support the district offices' bank supervisory 
responsibilities.
    Pursuant to the integration of the OTS into the OCC under the Dodd-
Frank Act, the proposal amends Sec.  4.5 to provide that each OCC 
district office also will have responsibility for certain Federal 
savings associations located in its district and that the OCC's field 
offices and duty stations also will support the district offices' 
savings association supervisory responsibilities. We also have updated 
this section to remove the reference to Federal branches and agencies 
of foreign banks, which now are supervised by Large Bank Supervision, 
instead of to the District Offices. Finally, we propose a technical 
amendment to Sec.  4.5 to reflect that the OCC has four district 
offices.
    These changes, along with those in Sec.  4.4, will provide guidance 
on which OCC office will have primary responsibility for the 
supervision of each newly integrated Federal savings association. The 
OTS rule setting forth OTS organization and functions, 12 CFR part 500, 
will be repealed at a later date.
    Frequency of examination of national banks (Sec.  4.6). Section 4.6 
sets forth the statutory authority pursuant to which the OCC conducts 
examinations of national banks and the frequency of these examinations. 
The current, nearly identical OTS rule, 12 CFR 563.171, contains the 
same examination provisions with respect to savings associations.\7\ 
Specifically, each of these rules provides that the OCC or OTS are 
required to conduct a full scope, on-site examination of every 
regulated entity (national bank or savings association, respectively) 
at least once during each 12-month period. Each rule also provides that 
the OCC or OTS may examine certain small national banks or savings 
associations every 18 months, rather than every 12 months, and sets 
forth the conditions that must be satisfied for this 18-month rule to 
apply. Finally, each rule provides that the OCC and OTS may examine a 
national bank or savings association more frequently, as each agency 
deems necessary.
---------------------------------------------------------------------------

    \7\ See 12 U.S.C. 1820(d).
---------------------------------------------------------------------------

    Pursuant to the transfer of the OTS's supervisory authority over 
Federal savings associations to the OCC, we are proposing to integrate 
Sec.  563.171 into Sec.  4.6 so that the OCC rule applies to both 
national banks and Federal savings associations. We also propose to 
amend this section by updating the OCC's statutory authority to conduct 
examinations to include the relevant statutory cite for the OCC's new 
authority to examine savings associations, 12 U.S.C. 1463(a)(1), as 
amended by the Dodd-Frank Act. As a result of this amendment to Sec.  
4.6, Federal savings associations will be subject to the same frequency 
of examinations as prior to the transfer of authority from the OTS to 
the OCC. Section 563.171 will be repealed at a later date.
b. Part 4, Subpart B--Freedom of Information Act
    Subpart B contains the OCC's rules for making requests for agency 
records and documents under the FOIA, 5 U.S.C. 552. The proposed rule 
applies these rules to FOIA requests relating to Federal savings 
associations received by the OCC as of the transfer date, ensures that 
records of the OTS are subject to the OCC's FOIA regulations, and makes 
various technical changes to part 4 to correct technical errors and to 
update appropriate references to OCC units charged with handling FOIA 
requests.
    Purpose and scope (Sec.  4.11). This section provides the purpose 
and scope of the OCC's FOIA rule, which is used to facilitate the OCC's 
interaction with the banking industry and the public. The proposal 
amends this section to include the Federal savings association industry 
within this rule's scope. We also have amended this section to provide 
that this subpart does not apply to FOIA requests filed with the OTS 
before July 21, 2011. Instead, these requests are subject to the rules 
of the OTS in effect on July 20, 2011. This will ensure continuity of 
processing for pending requests at the OTS.
    Information available under the FOIA (Sec.  4.12). This section 
provides that OCC records are available to the public except those 
listed as exempt. We have added a provision to the list of exempt 
records to account for OTS information in the possession of the OCC.
    Public inspection and copying (Sec.  4.14). Section 4.14 lists the 
type of information the OCC makes readily available for public 
inspection and copying. The proposal amends this section by adding 
cross-references to the appropriate Federal savings association-related 
rules for public securities-related filings and the public file of 
pending applications. In addition, the proposal adds to this list any 
similar OTS information, to the extent this information is in the 
possession of the OCC. Finally, the proposal updates an obsolete 
reference in Sec.  4.14(c) to the Multinational Banking Department to 
provide that the public files of pending applications of banks, as well 
as Federal savings associations, supervised by Large Bank Supervision 
are available from the Large Bank Licensing Expert.
    How to request records (Sec.  4.15). Section 4.15 describes the 
process by which a person may request records from the OCC through the 
FOIA. Paragraph (c)(2) currently states that the OCC's Director of 
Communications or that person's delegate initially determines whether 
to grant a request for OCC records. The proposal amends this statement 
to indicate that the Comptroller or the Comptroller's designee makes 
this initial determination, which more accurately reflects the current 
process at the OCC. We have also proposed a change to paragraph (b), 
adding a reference to the

[[Page 30560]]

OCC's Web portal as a means to submit or appeal a FOIA request.
    Predisclosure notice for confidential commercial information (Sec.  
4.16). This section describes the circumstances under which the OCC 
provides a submitter of confidential commercial information with prompt 
written notice of the receipt of a request for this information or of 
an appeal of a denial of a request for such information. The proposal 
amends this section to cover information submitted to the OTS or to the 
Federal Home Loan Bank Board, its predecessor agency, now in the 
possession of the OCC.
    How to track a FOIA request (Sec.  4.18). Section 4.18 provides 
that the OCC will issue a tracking number to all FOIA requesters within 
5 days of the receipt of the request and describes how a FOIA requester 
may track the progress of their FOIA request at the OCC. The proposal 
amends this section to more accurately reflect the OCC's current 
process of automatically issuing tracking numbers to FOIA requesters 
who file via the OCC's Freedom of Information Request Portal, https://appsec.occ.gov/publicaccesslink/palMain.aspx.
c. Part 4, Subpart C--Non-Public Information
    Subpart C contains OCC rules and procedures for requesting access 
to various types of non-public information and the OCC's process for 
reviewing and responding to such requests. It also clarifies the 
persons and entities with which the OCC can share non-public 
information. The OTS has similar rules at 12 CFR 510.5. This proposal 
amends subpart C to include information related to Federal savings 
associations and to ensure that such information remains accessible, 
subject to appropriate procedures and safeguards. The amendments to 
subpart C also ensure that non-public information in the possession of 
former employees or officials of the OTS will remain subject to 
confidentiality safeguards and procedures for requesting access to such 
information.
    Purpose and scope (Sec.  4.31). This section outlines the purposes 
and scope of the OCC's rule for requesting access to various types of 
non-public information. The proposal amends this section to make 
reference to Federal savings associations and state savings association 
regulatory agencies, where appropriate. We also have amended this 
section to provide that this subpart does not apply to requests for 
non-public information filed with the OTS before July 21, 2011. 
Instead, these requests are subject to the rules of the OTS in effect 
on July 20, 2011. This will ensure continuity of processing for pending 
requests at the OTS.
    Definitions (Sec.  4.32). Among other terms, this section defines 
``non-public OCC information'' as information that the OCC is not 
required to release under the FOIA or that the OCC has not yet 
published or made available pursuant to 12 U.S.C. 1818(u). It further 
provides that such information includes records created or obtained by 
the OCC in connection with the OCC's performance of its 
responsibilities, and sets forth examples of these records. The 
proposal amends this section to include OTS non-public information in 
the definition of ``non-public information.'' The proposal also amends 
the list of examples to include Federal savings association-related 
records. This would include OTS records in the possession of the OCC as 
of the transfer date as well as testimony from or an interview with, 
former OTS employees, officers, or agents concerning information 
acquired by that person in the course of his or her performance of 
official duties with the OTS or due to that person's official status 
with the OTS. Finally, the proposal makes technical amendments to this 
definition for clarification purposes and to remove duplicative 
information.
    Section 4.32 also includes a definition of ``supervised entity.'' 
The proposal amends this definition to include Federal savings 
association and Federal savings association subsidiaries.
    Consideration of requests (Sec.  4.35). This section outlines the 
OCC's decision-making process for the release of non-public 
information, the standards for a denial of a request, and time periods 
for OCC consideration of the request. Paragraph (a)(5) of this section 
provides that the OCC generally notifies a national bank if it is the 
subject of a request for information, unless the OCC, in its 
discretion, determines that to do so would advantage or prejudice any 
of the parties in the matter at issue. The proposal amends this 
paragraph to include Federal savings associations.
    Persons and entities with access to OCC information; prohibition on 
dissemination (Sec.  4.37). Paragraph (a) of Sec.  4.37 prohibits, 
except as authorized by this subpart or otherwise by the OCC, a current 
or former OCC employee or agent from disclosing or permitting the 
disclosure of any non-public OCC information to anyone other than an 
employee or agent of the Comptroller for use in the performance of OCC 
duties. This section also requires any current or former OCC employee 
or agent subpoenaed or otherwise requested to provide non-public 
information to immediately notify the OCC of such request, and outlines 
the duties of such employee or agent when subject to such a request. 
The proposal amends this section to cover former OTS employees. As a 
result, former OTS employees must comply with this section with respect 
to OTS information that is in the possession of the OCC and covered by 
this section after the transfer date.
    Subsection (b) of this section prohibits any person, national bank, 
or other entity, including one in lawful possession of non-public OCC 
information, from disclosing such information except when the requester 
has sought the information from the OCC pursuant to this section and as 
ordered by a Federal court in a judicial proceeding in which the OCC 
has had the opportunity to appear and oppose discovery. This subsection 
also provides that a person, bank or other entity may disclose non-
public OCC information to a person or organization officially connected 
with the bank as officer, director, employee, attorney, auditor, or 
independent auditor, or to a consultant with a specified agreement with 
the person, bank, or entity. Finally, this subsection outlines the 
duties of such person, bank or entity when subject to a request for 
non-public OCC information. The proposal amends paragraph (b) to 
include Federal savings associations.
    Paragraph (c) provides that, when not prohibited by law, the 
Comptroller may make non-public information available to the Federal 
Reserve Board and FDIC, and in the Comptroller's sole discretion, to 
certain other government agencies of the United States and foreign 
governments, state agencies with authority to investigate violations of 
criminal law, and state bank regulatory agencies. The proposal amends 
this section to permit the Comptroller to also disclose this 
information to state savings association regulatory agencies.
    Notification of parties and procedures for sharing and using OCC 
records in litigation (Sec.  4.39). This section requires persons 
requesting that the OCC permit the testimony of an OCC employee or 
former OCC employee to notify all other parties to the case that a 
request has been submitted. The proposal applies this section to 
requests for the testimony of former OTS employees.
    Appendix A to Subpart C of Part 4--Model Stipulation for Protective 
Order and Model Protective Order. Appendix A to subpart C sets forth a 
model stipulation for protective order and a model protective order for 
the release of non-public OCC information. The proposal amends these 
models to include statutory citations relating to the Comptroller's 
authority to deem

[[Page 30561]]

Federal savings association-related information confidential. 
Specifically, the proposal adds citations to 12 U.S.C. 1463(a)(1), 
1464(a)(1) and 1464(d)(1)(B)(i), and 5 U.S.C. 301.
d. Part 4, Subpart E--One-Year Restrictions on Post-Employment 
Activities of Senior Examiners
    Twelve CFR part 4, subpart E sets forth the statutorily required 
post-employment restrictions placed on senior examiners after these 
individuals leave the employment of the OCC. Specifically, subpart E 
prohibits a senior examiner of a national bank from knowingly accepting 
compensation from that bank or a company that controls that bank for 
one year after leaving the employment of the OCC, if such individual 
was the bank's senior examiner for two or more months during the last 
12 months of OCC employment. The OTS applied substantively identical 
restrictions derived from the same statutory authority as the OCC rules 
on its senior examiners of savings associations at 12 CFR part 507.\8\
---------------------------------------------------------------------------

    \8\ See 12 U.S.C. 1820(k).
---------------------------------------------------------------------------

    The OCC is proposing amendments to subpart E as part of its 
integration of the functions and former employees of the OTS. The 
resulting OCC regulation would include the same one-year post-
employment restrictions that were imposed on senior examiners of 
national banks and savings associations when the OCC and OTS operated 
under separate regulations. Section 507 will be repealed at a later 
date, as it no longer will be necessary.
    Definitions (Sec.  4.73). Section 4.73 defines certain terms used 
in subpart E. Specifically, Sec.  4.73 defines a ``consultant'' of a 
national bank, bank holding company, or other company as one who works 
directly on matters for, or on behalf of, the bank, bank holding 
company, or other company. It defines ``control'' as having the meaning 
given in section 2 of the Bank Holding Company Act (12 U.S.C. 1841(a)). 
In the proposal, the OCC amends these definitions to encompass its 
oversight of Federal savings associations. Specifically, we propose to 
amend the definition of ``consultant'' to include also a consultant of 
a savings association or savings and loan holding company. We also 
propose to amend the definition of ``control'' to include reference to 
section 10 of the Home Owners' Loan Act (12 U.S.C. 1467a) when 
referring to a savings association or a savings and loan holding 
company.
    The proposal further adds the definitions of ``savings 
association'' and ``savings and loan holding company.'' Specifically, 
``savings association'' would have the meaning given in section 3 of 
the FDI Act (12 U.S.C. 1813(b)(1)). ``Savings and loan holding 
company'' would mean any company that controls a savings association or 
any other company that is a savings and loan holding company (as 
provided in section 10 of the Home Owners' Loan Act (12 U.S.C. 1467a)).
    In addition, the proposal amends the definition of ``senior 
examiner.'' Currently, Sec.  4.73 defines ``senior examiner'' as an OCC 
officer or employee who has been authorized by the OCC to examine 
national banks and who meets certain other criteria. The OCC proposes 
to apply this same definition to officers and employees who examine 
Federal savings associations.
    The OCC is aware that for one year following the transfer date, a 
senior examiner subject to the one-year post employment restriction may 
have worked for both the OTS and OCC during the one-year look-back 
period. We have drafted the proposed rule to address this situation by 
referring to either the OCC or the OTS as having had the authority to 
authorize the senior examiner's activities during this one-year look 
back period. One year after the transfer date, references to former OTS 
employment will not be needed, and the provision that references the 
OTS will sunset. It will be replaced by a provision that only addresses 
prior OCC employment.
    One-year post-employment restrictions (Sec.  4.74). Section 4.74 
contains the post-employment prohibition for senior examiners. As noted 
above, as of the transfer date, the OCC will assume responsibility for 
examining Federal savings associations and will employ former OTS 
employees, including the senior examiners, authorized to examine these 
institutions. Accordingly, the OCC proposes to amend Sec.  4.74 to 
extend its post-employment restrictions to senior examiners of Federal 
savings associations and to their employment with such savings 
associations and controlling savings and loan holding companies.
    As also noted above, however, for one year following the transfer 
date, the 12-month look-back window will include a period during which 
a savings association senior examiner may have been authorized by the 
OTS to conduct thrift examinations. The proposed language of Sec.  4.74 
addresses this period of time by referencing employment with the OCC 
and the OTS. One year post-transfer, the obsolete references to the OTS 
will sunset.
    Effective Date; Waivers (Sec.  4.75). Section 4.75 states that the 
post-employment restrictions set forth in Sec.  4.74 do not apply to 
any current or former OCC officer or employee if the Comptroller finds 
that granting the individual a waiver would not affect the integrity of 
the OCC's supervisory program. The OCC proposes to amend Sec.  4.75 to 
recognize the Comptroller's authority to issue similar waivers for 
former OTS employees during the first year after the transfer date. 
After this time period, there will no longer be former OTS senior 
examiners who are subject to the post-employment restrictions. 
Therefore, one year after the transfer date, references in Sec.  4.75 
to former OTS employees will sunset.
    The proposal also makes a technical amendment to this section by 
deleting Sec.  4.75(a), which contains an obsolete reference to those 
who worked for the OCC prior to 2005. Conforming structural changes are 
made to the section in light of the deletion of this subsection.
    Penalties (Sec.  4.76). This section sets forth the penalties that 
apply to a senior examiner who violates the one-year post-employment 
restrictions set forth in Sec.  4.74. Section 4.76(a) states that this 
individual may be subject to an order (a) removing him from office or 
prohibiting him from participating in the affairs of the relevant bank, 
bank holding company, or other company that controls such institution 
for up to five years; and (b) prohibiting him from participating in the 
affairs of any insured depository institution for up to five years. 
Alternatively, he may be subject to a civil money penalty of not more 
than $250,000. Paragraphs (b) through (e) set forth the mechanics by 
which the penalties listed in subsection (a) are administered.
    The proposal amends this section to include Federal savings 
associations, Federal savings association senior examiners, and former 
OTS employees within the scope of the Sec.  4.76 penalty provisions. As 
noted above, language referencing former OTS employees will sunset one 
year after the transfer date, at which time the post-employment 
provisions no longer apply to former OTS employees.
    Finally, the proposal makes a technical correction to this 
provision. The current provision incorrectly provides that penalties 
will be applied when the senior examiner of a bank accepts compensation 
from that bank at any time after leaving the employment of the OCC. 
This amendment limits the penalties to violations that occur during

[[Page 30562]]

the one-year look-back period, the time period during which such 
employment is prohibited by the rule.

2. Dodd-Frank Act Amendments Affecting Approval of Change in Control 
Notices and Acceptance of Deposits by Federal Branches (Parts 5 and 28)

    This proposal contains amendments to 12 CFR part 5 to implement 
section 603 of the Dodd-Frank Act. Section 603 provides for a three-
year moratorium (with certain exceptions) on the approval of a change 
in control of credit card banks, industrial banks and trust banks, if 
the change in control would result in a commercial firm controlling 
(directly or indirectly) such a bank. The moratorium took effect on the 
date of enactment of the Act, i.e., July 21, 2010. The proposal amends 
12 CFR 5.50(f) to implement this section of the Act.
    Section 6 of the International Banking Act, 12 U.S.C. 3104(b), 
provides that uninsured Federal branches of foreign banks may not 
accept deposits in an amount of less than the standard maximum deposit 
insurance amount (SMDIA). The SMDIA is defined in 12 U.S.C. 
1821(a)(1)(E) to mean $100,000, subject to certain adjustments provided 
for in the statute. Section 335 of the Dodd-Frank Act, which takes 
effect on the transfer date, amends 12 U.S.C. 1821(a)(1)(E) to change 
the amount from $100,000 to $250,000. Section 28.16(b) of the OCC's 
regulations states that an uninsured Federal branch may accept initial 
deposits of less than $100,000 only from certain persons. In order to 
conform this section of the OCC's regulations to the statutory changes 
and to prevent the need to continually amend this section for changes 
in the SMDIA, the proposal amends 12 CFR 28.16(b) to refer to 12 U.S.C. 
1821(a)(1)(E), rather than the obsolete reference to $100,000.

3. Dodd-Frank Act Provisions Affecting Preemption and Visitorial Powers 
(Parts 5, 7, and 34)

a. Preemption
    The Dodd-Frank Act contains provisions that affect the scope of 
national bank preemption, effective as of the transfer date.\9\ The Act 
eliminates preemption of state law for national bank subsidiaries, 
agents and affiliates.\10\ We therefore propose to rescind 12 CFR 
7.4006, which is the OCC's regulation concerning the application of 
state laws to national bank operating subsidiaries.
---------------------------------------------------------------------------

    \9\ Section 1044, which amends chapter one of title LXII of the 
Revised Statutes by inserting a new section 5136C, contains the 
principal national bank preemption provisions.
    \10\ Dodd-Frank Act sections 1044(a), 1045, 124 Stat. 1376, 
2016, 2017 (July 21, 2010).
---------------------------------------------------------------------------

    The Act also changes the preemption standards applicable to Federal 
savings associations to conform to those applicable to national 
banks.\11\ The Act specifically provides that, as of the transfer date, 
determinations by a court or by the OCC under the Home Owners' Loan Act 
(HOLA) with respect to Federal savings associations must be made in 
accordance with the laws and legal standards applicable to national 
banks regarding the application of state law.\12\
---------------------------------------------------------------------------

    \11\ Dodd-Frank Act section 1046, 124 Stat. 2017 (to be codified 
at 12 U.S.C. 1465). In addition, the Act states that the provisions 
in section 1044 regarding visitorial powers shall apply to Federal 
savings associations and their subsidiaries to the same extent and 
in the same manner as if they were national banks or national bank 
subsidiaries. Dodd-Frank Act section 1047(b), 124 Stat. 2018 (to be 
codified at 12 U.S.C. 1465).
    \12\ Id.
---------------------------------------------------------------------------

    In order to implement this standard for Federal savings 
associations, the OCC is proposing amendments to its regulations to 
apply national bank standards on preemption and visitorial powers to 
Federal savings associations and their subsidiaries to the same extent 
and in the same manner as these standards apply to national banks and 
their subsidiaries.\13\
---------------------------------------------------------------------------

    \13\ To fulfill this statutory mandate, the affected OTS 
preemption regulations will be repealed.
---------------------------------------------------------------------------

    In addition, section 1044 of the Dodd-Frank Act contains several 
provisions addressing preemption of ``state consumer financial 
laws.''\14\ The Act provides that ``state consumer financial laws'' may 
be preempted only if: (1) Application of such a law would have a 
``discriminatory effect'' on national banks compared with state-
chartered banks in that state; (2) ``in accordance with the legal 
standard for preemption'' in the Supreme Court's decision in Barnett 
Bank of Marion County, N.A. v. Nelson,\15\ the state consumer financial 
law ``prevents or significantly interferes with the exercise by the 
national bank of its powers'' (``Barnett standard'' preemption); or (3) 
the state consumer financial law is preempted by a provision of Federal 
law other than Title LXII of the Revised Statutes.\16\
---------------------------------------------------------------------------

    \14\ The Dodd-Frank Act defines the term ``state consumer 
financial law'' to mean a state law that (1) does not directly or 
indirectly discriminate against national banks and that (2) directly 
and specifically (3) regulates the manner, content, or terms and 
conditions of (4) any financial transaction or related account (5) 
with respect to a consumer. Dodd-Frank Act section 1044(a), 124 
Stat. at 2014-2015.
    \15\ 517 U.S. 25 (1996).
    \16\ Dodd-Frank Act section 1044(a), 124 Stat. at 2015.
---------------------------------------------------------------------------

    Because these provisions only apply to preemption of ``state 
consumer financial laws,'' they do not affect the application of OCC 
regulations to state laws that do not come within that definition. We 
have therefore examined whether these Dodd-Frank provisions, and 
particularly the Barnett standard preemption provision, require changes 
to our rules with respect to that category of state law.
    The language of the Barnett standard preemption provision in the 
final legislation differs substantially from earlier versions of the 
legislation. The version of the legislation passed by the House of 
Representatives made no reference to the Barnett decision.\17\ 
Important changes were made in the Senate as the legislation progressed 
and sponsors of key language that was ultimately adopted have explained 
that the changes were intended to provide consistency and legal 
certainty by preserving the preemption standard of the Supreme Court's 
Barnett decision.\18\
---------------------------------------------------------------------------

    \17\ See H.R. 4103, 111th Cong. section 4404 (as passed by the 
House of Representatives Dec. 11, 2009).
    \18\ See 156 Cong. Rec. S5870-02, 2010 WL 2788025 (July 15, 
2010) (colloquy between Senator Carper, the sponsor of the key 
language in the Barnett standard preemption provision, and Chairman 
Dodd). The same understanding was stated by Senator Johnson. See 156 
Cong. Rec. S5889 (July 15, 2010).
---------------------------------------------------------------------------

    This is consistent with both the language of the statute and the 
substance of the Barnett decision. The Barnett standard preemption 
provision instructs that preemption will occur, if, ``in accordance 
with the legal standard for preemption in the decision of the Supreme 
Court'' in Barnett, a state consumer financial law ``prevents or 
significantly interferes with the exercise by a national bank of its 
powers.'' \19\ The legal standard for preemption in Barnett is conflict 
preemption and the decision references different formulations of 
conflict to illustrate and explain the nature and level of interference 
with national bank powers that triggers preemption. The phrase 
``prevent or significantly interfere'' is one exemplary formulation of 
conflict preemption used in the decision. It is not the only 
formulation; it is not set apart from the others; and it is not 
presented as a test different from the others; rather, it is part of 
the whole of the Court's reasoning in its decision. Thus, in the 
Barnett preemption provision, the phrase may serve as a touchstone or 
starting point in the analysis, but it takes meaning from the whole of 
the Supreme Court's decision. Since the phrase must be ``in accordance 
with the legal standard for preemption'' in the decision of the Court, 
the analysis may

[[Page 30563]]

not simply stop and isolate those terms from the rest of the decision; 
it is necessary to take into account the whole of the conflict 
preemption analysis in the Supreme Court's decision.\20\ Notably, a 
recent decision handed down by the 11th Circuit Court of Appeals cited 
other formulations of conflict preemption used in the Barnett decision 
for the conclusion that under the Dodd-Frank Act, the proper preemption 
test is conflict preemption.\21\
---------------------------------------------------------------------------

    \19\ Dodd-Frank Act section 1044(a), 124 Stat. at 2015.
    \20\ The Barnett decision describes in detail the analysis under 
the Barnett conflict preemption standard. 517 U.S. at 33-34.
    \21\ Baptista v. JPMorgan Chase, N.A., ---- F. 3d ------, (11th 
Cir. May 11, 2011) (``Thus it is clear that under the Dodd-Frank 
Act, the proper preemption test asks whether there is a significant 
conflict between the state and Federal statutes--that is, the test 
for conflict preemption.'').
---------------------------------------------------------------------------

    This result is supported by other precedent and portions of section 
1044 of the Dodd-Frank Act. The Barnett standard preemption provision 
uses language virtually identical to that used in section 104(d)(2)(A) 
of the Gramm-Leach-Bliley Act of 1999 (GLBA).\22\ The leading case 
applying that standard similarly treated the phrase ``prevents or 
significantly interferes'' as a reference to the whole of the Court's 
Barnett preemption analysis and referred to the GLBA statutory language 
as ``the traditional Barnett Bank standards.'' \23\ Other portions of 
section 1044 similarly convey that the Barnett standard preemption 
provision refers to the legal standard for conflict preemption 
contained in the whole of the Court's decision.\24\
---------------------------------------------------------------------------

    \22\ See 15 U.S.C. 6701(d)(2)(A).
    \23\ Association of Banks in Insurance Inc. v. Duryee, 270 F.3d 
397, at 405, 408 (6th Cir. 2001).
    \24\ The related requirement that the OCC must have 
``substantial evidence'' on the record to support adoption of 
preemption rules or orders under this standard refers to the legal 
standard of the Barnett decision, not to a different standard based 
on a single phrase used in that decision, and thus incorporates the 
entirety of Barnett's conflict preemption analysis upon which the 
decision was founded. See Dodd-Frank Act section 1044(a), 124 Stat. 
at 2016 (providing that regulations and orders promulgated under 
Barnett standard preemption do not affect the application of a state 
consumer financial law to a national bank unless substantial 
evidence made on the record of the proceeding supports the specific 
finding of preemption ``in accordance with the legal standard of the 
decision of the Supreme Court of the United States in Barnett Bank 
of Marion County, N.A. v. Nelson, Florida Insurance Commissioner, et 
al., 517 U.S. 25 (1996).'')
---------------------------------------------------------------------------

    The OCC recognizes that the manner in which preemption under the 
Barnett case is stated in Dodd-Frank also could have been intended to 
clarify that standard relative to how current OCC regulations have 
distilled principles from the Barnett case. Portions of our current 
regulations provide that state laws that ``obstruct, impair, or 
condition'' a national bank's powers are not applicable to national 
banks. This formulation has created ambiguities and misunderstandings 
regarding the preemption standard that it was intended to convey. We 
are therefore proposing to remove this language where it appears in our 
regulations and to remove 12 CFR 7.4009 in its entirety. This language 
was drawn from an amalgam of prior precedents relied upon in the 
Supreme Court's decision in Barnett, and its elimination will remove 
any ambiguity that the conflict preemption principles of the Supreme 
Court's Barnett decision are the governing standard for national bank 
preemption. To the extent any existing precedent cited those terms in 
our regulations, that precedent remains valid, since the regulations 
were premised on principles drawn from the Barnett case. Going forward, 
however, that formulation would be removed as a regulatory preemption 
standard.
    Accordingly, because the Dodd-Frank Act preserves the Barnett 
conflict preemption standard, OCC's rules \25\ and existing precedents 
(including judicial decisions and interpretations) consistent with that 
analysis are also preserved.\26\ We have reviewed those rules, taking 
into account the definition of a state consumer financial law, to 
confirm that the specific types of laws cited in the rules are 
consistent with the standard for conflict preemption in the Supreme 
Court's Barnett decision.
---------------------------------------------------------------------------

    \25\ See, e.g., 69 FR 1904 (Jan. 13, 2004).
    \26\ See Letters from Acting Comptroller John Walsh to Senator 
Thomas R. Carper and Senator Mark Warner, May 12, 2011. Earlier 
versions of the legislation would have had a retroactive impact by 
creating various new standards for preemption under the National 
Bank Act, invalidating an extensive body of national bank judicial, 
interpretive and regulatory preemption precedent. See H.R. 4103, 
supra note 17. The final version of the Dodd-Frank Act legislation 
did not adopt this approach. Section 1043 of the Act, which dated 
from those early versions of the legislation, was not changed to 
reflect the final version of the legislation, but remains relevant 
in connection with changes in the treatment of preemption for 
national bank subsidiaries, and Federal savings associations and 
their subsidiaries and agents.
---------------------------------------------------------------------------

    We are also proposing clarifications to the OCC's preemption 
regulations regarding the types of laws that would not be preempted 
under the Dodd-Frank Act provisions. Specifically, the proposal amends 
provisions of the regulations describing the types of state laws that 
are not preempted, to make specific reference to the Barnett decision.
    The OCC recognizes that going forward, after the transfer date, the 
Dodd-Frank Act imposes new procedures and consultation requirements 
with respect to how we may reach certain future preemption 
determinations and clarifies the criteria for judicial review of these 
determinations. Specifically, the Act requires that the OCC make 
preemption determinations with regard to state consumer financial laws 
under the Barnett standard by regulation or order on a ``case-by-case 
basis'' in accordance with applicable law.\27\ The Act defines ``case-
by-case basis'' as a determination by the Comptroller as to the impact 
of a ``particular'' state consumer financial law on ``any national bank 
that is subject to that law'' or the law of any other state with 
substantively equivalent terms.\28\
---------------------------------------------------------------------------

    \27\ Dodd-Frank Act section 1044(a), 124 Stat. at 2015.
    \28\ Id. This language was designed ``to permit the OCC to make 
a single determination concerning multiple states' consumer 
financial laws, so long as the law contains substantively equivalent 
terms.'' See S. Rep. 11-176, at 176 (April 30, 2010). The Act 
contains no statement that Congress intended to retroactively apply 
these procedural requirements to overturn existing precedent and 
regulations, and that interpretation would be contrary to the 
presumption against retroactive legislation. See e.g., Landgraf v. 
USI Film Products, 511 U.S., 272-73 (1994).
---------------------------------------------------------------------------

    When making a determination under this provision that a state 
consumer financial law has substantively equivalent terms as the law 
the OCC is preempting, the OCC must first consult with and take into 
account the views of the Consumer Financial Protection Bureau (CFPB) in 
making that determination. We note that this consultation process 
synchronizes with the role and authorities granted to the CFPB under 
the Dodd-Frank Act. It can inform the CFPB's exercise of its authority 
to enhance Federal consumer protection rules, and that rulemaking 
process, in turn, includes consultation with appropriate prudential 
regulators.\29\
---------------------------------------------------------------------------

    \29\ Dodd-Frank Act section 1022(b), 124 Stat. at 1981.
---------------------------------------------------------------------------

    The Dodd-Frank Act also requires there to be substantial evidence, 
made on the record of the proceeding, to support an OCC order or 
regulation that declares inapplicable a state consumer financial law 
under the Barnett standard. Finally, the Act requires the OCC to 
conduct a periodic review, subject to notice and comment, every 5 years 
after issuing a preemption determination relating to a state consumer 
financial law and to publish a list of such preemption determinations 
every quarter.\30\
---------------------------------------------------------------------------

    \30\ Dodd-Frank Act section 1044(a), 124 Stat. at 2016.
---------------------------------------------------------------------------

b. Visitorial Powers
    The National Bank Act, at 12 U.S.C. 484, vests in the OCC exclusive 
visitorial powers with respect to national banks, subject to certain

[[Page 30564]]

express exceptions.\31\ On June 29, 2009, the Supreme Court issued its 
opinion in Cuomo v. Clearing House Association, L.L.C.\32\ The Court 
held that when a state attorney general files a lawsuit to enforce a 
state law against a national bank, ``[s]uch a lawsuit is not an 
exercise of `visitorial powers' and thus the Comptroller erred by 
extending the definition of `visitorial powers' to include `prosecuting 
enforcement actions' in state courts.'' \33\ At the same time, the 
decision recognized the ``regime of exclusive administrative oversight 
by the Comptroller'' \34\ applicable to national banks. Accordingly, 
under Cuomo, a state attorney general may bring an action against a 
national bank in a court of appropriate jurisdiction to enforce non-
preempted state laws, but is restricted in conducting non-judicial 
investigations or oversight of a national bank.
---------------------------------------------------------------------------

    \31\ The statute provides that ``[n]o national bank shall be 
subject to any visitorial powers except as authorized by Federal 
law, vested in the courts of justice or such as shall be, or have 
been exercised or directed by Congress or by either House thereof or 
by any committee of Congress or of either House duly authorized.''
    \32\ 129 S. Ct. 2710 (2009).
    \33\ Id. at 2721.
    \34\ Id. at 2718.
---------------------------------------------------------------------------

    The Dodd-Frank Act expressly codifies the Supreme Court's decision 
in Cuomo regarding enforcement of state law against national banks by 
providing that no provision or other limits restricting the visitorial 
powers to which a national bank is subject shall be construed to limit 
or restrict the authority of any state attorney general to ``bring an 
action against a national bank in a court of appropriate jurisdiction 
to enforce an applicable law and to seek relief as authorized by such 
law.'' \35\ Accordingly, the OCC is revising Sec.  7.4000 to provide 
that an action by a state attorney general (or other chief law 
enforcement officer) in a court of appropriate jurisdiction to enforce 
a non-preempted state law against a national bank and seek relief as 
authorized thereunder is not an exercise of visitorial powers under 12 
U.S.C. 484.
---------------------------------------------------------------------------

    \35\ Dodd-Frank Act section 1047(a), 124 Stat. 2018 (to be 
codified at 12 U.S.C. 25b). The Act also amends HOLA to apply the 
same visitorial standard that applies to national banks to Federal 
savings associations and their subsidiaries. Dodd-Frank Act section 
1047(b), 124 Stat. 2018 (to be codified at 12 U.S.C. 1465).
---------------------------------------------------------------------------

c. Description of the Proposed Rule
    The proposal accordingly amends provisions of the OCC's regulations 
relating to preemption (12 CFR 7.4007, 7.4008, 7.4009, and 34.4), 
operating subsidiaries (12 CFR 5.34 and 7.4006), and visitorial powers 
(12 CFR 7.4000).
     The proposal adds Sec. Sec.  7.4010(a) and 34.6 to provide 
that state laws apply to Federal savings associations and their 
subsidiaries to the same extent and in the same manner that those laws 
apply to national banks and their subsidiaries. The proposal also adds 
Sec.  7.4010(b) to subject Federal savings associations and their 
subsidiaries to the same visitorial powers provisions that apply to 
national banks and their subsidiaries.
     The proposal makes conforming changes to Sec. Sec.  
7.4007, 7.4008, and 34.4. It revises paragraphs (b) in Sec. Sec.  
7.4007, (d) in Sec.  7.4008, and (a) in Sec.  34.4 by removing the 
phrase ``state laws that obstruct, impair, or condition a national 
bank's ability to fully exercise its Federally authorized * * * powers 
are not applicable to national banks.'' The proposal further clarifies 
that a state law is not preempted to the extent consistent with the 
Barnett decision.
     The proposal deletes Sec.  7.4009.
     The proposal deletes Sec.  7.4006, which governs 
applicability of state laws to national bank operating subsidiaries. 
The proposal also makes conforming revisions to 12 CFR 5.34(a) and 
subsection (e)(3) by expressly referencing the new section 12 U.S.C. 
25b adopted by the Dodd-Frank Act, which provides that Title LXII of 
the Revised Statutes and section 24 of the Federal Reserve Act (12 
U.S.C. 371) do not preempt, annul, or affect the applicability of any 
state law to any subsidiary, affiliate, or agent of a national bank 
(other than a subsidiary, affiliate, or agent that is chartered as a 
national bank).
     The proposal makes a number of changes to Sec.  7.4000 to 
conform the regulations to the Supreme Court's decision in the Cuomo 
case as adopted by the Dodd-Frank Act. First, it adds a reference to 12 
U.S.C. 484 in Sec.  7.4000(a)(1). Second, it revises paragraph 
(a)(2)(iv) by adding ``investigating or'' before ``enforcing compliance 
with any applicable Federal or State laws concerning those 
activities.'' This incorporates the Cuomo Court's recognition that 
nonjudicial investigations generally constitute an exercise of 
visitorial powers.\36\ Third, it adds a new paragraph (b), which 
specifically provides that ``[i]n accordance with the decision of the 
Supreme Court in Cuomo v. Clearing House Assn., L.L.C., 129 S. Ct. 2710 
(2009), an action against a national bank in a court of appropriate 
jurisdiction brought by a state attorney general (or other chief law 
enforcement officer) to enforce a non-preempted state law against a 
national bank and to seek relief as authorized thereunder is not an 
exercise of visitorial powers under 12 U.S.C. 484.'' Fourth, it 
redesignates paragraphs (b) and (c) as new paragraphs (c) and (d) and 
makes conforming revisions to Sec.  7.4000(c)(2), which provides an 
exception from the general rule in Sec.  7.4000(a)(1) for such 
visitorial powers as are vested in the courts of justice.
---------------------------------------------------------------------------

    \36\ The Court stated that:
    The request for information [by the Attorney General] in the 
present case was stated to be ``in lieu of'' other action; implicit 
was the threat that if the request was not voluntarily honored, that 
other action would be taken. All parties have assumed, and we agree, 
that if the threatened action would have been unlawful the request-
cum-threat could be enjoined. Here the threatened action was not the 
bringing of a civil suit, or the obtaining of a judicial search 
warrant based on probable cause, but rather the Attorney General's 
issuance of subpoena on his own authority under New York Executive 
Law, which permits such subpoenas in connection with his 
investigation of ``repeated fraudulent or illegal acts * * * in the 
carrying on, conducting or transaction of business.'' See N.Y. Exec. 
Law Ann. Sec.  63(12) (West 2002). That is not the exercise of the 
power of law enforcement ``vested in the courts of justice'' which 
12 U.S.C. 484(a) exempts from the ban on exercise of supervisory 
power.
    Accordingly, the injunction below is affirmed as applied to the 
threatened issuance of executive subpoenas by the Attorney General 
for the State of New York, but vacated insofar as it prohibits the 
Attorney General from bringing judicial enforcement actions.
    Cuomo, 129 S. Ct. at 2721-2722 (emphasis added).
---------------------------------------------------------------------------

4. Assessments (Part 8)

a. Background
    The Dodd-Frank Act transfers authority to collect assessments for 
Federal savings associations from the OTS to the OCC.\37\ This 
authority is effective as of the transfer date, July 21, 2011.\38\ The 
Dodd-Frank Act also provides that, in establishing the amount of an 
assessment, the Comptroller may consider the nature and scope of the 
activities of the entity, the amount and type of assets it holds, the 
financial and managerial condition of the entity, and any other factor 
that is appropriate.\39\
---------------------------------------------------------------------------

    \37\ See Dodd-Frank Act section 318(b) (authorizing the 
Comptroller to collect assessments, fees, or other charges from 
entities for which it is the appropriate Federal banking agency). 
See also id. section 312(c) (amending the Federal Deposit Insurance 
Act to designate the OCC as the appropriate Federal banking agency 
for Federal savings associations); id. section 369 (amending the 
HOLA to authorize the Comptroller to assess savings associations and 
affiliates of savings associations for the cost of examinations as 
the Comptroller ``deems necessary or appropriate'').
    \38\ Dodd-Frank Act section 312.
    \39\ Dodd-Frank Act section 318(b).
---------------------------------------------------------------------------

    The OCC and the OTS currently assess banks and savings associations 
respectively using different methodologies, although the agencies' 
methodologies generally result in

[[Page 30565]]

similar levels of assessments. Under the OTS assessment system, 
assessments are due each year on January 31 and July 31, and are 
calculated based on an institution's asset size, condition, and 
complexity.\40\ The asset size component of the assessment is 
calculated using a table and formula contained in the OTS's 
regulation.\41\ The OTS sets specific rates that apply to the table 
through a Thrift Bulletin on assessments and fees.\42\
---------------------------------------------------------------------------

    \40\ 12 CFR part 502.
    \41\ 12 CFR 502.20.
    \42\ Thrift Bulletin 48-29.
---------------------------------------------------------------------------

    The condition component in the OTS's regulation applies to savings 
associations with Uniform Financial Institutions Rating System (UFIRS) 
ratings of 3, 4, or 5. The condition surcharge is determined by 
multiplying a savings association's size component by 50%, in the case 
of any association that receives a composite UFIRS rating of 3, and 
100% in the case of any association that receives a composite UFIRS 
rating of 4 or 5. Under the OTS regulation, there is no cap on the 
condition surcharge.
    The assessment for complexity is based on a savings association's 
trust assets under management and on its non-trust assets. The OTS 
charges a complexity component for trust assets if a savings 
association has more than $1 billion in one of three components: Trust 
assets, the outstanding principal balance of assets that are covered by 
recourse obligations or direct credit substitutes, and the principal 
amount of loans that the institution services for others. The OTS 
charges a complexity component for non-trust assets above $1 billion 
under tiers and rates set out in a Thrift Bulletin.
    If a savings association administers trust assets of $1 billion or 
less, the OTS may assess fees for its examinations and investigations 
of those institutions. The OTS also may assess a savings association 
for examination or investigation of its affiliates. Again, these fees 
are set in a Thrift Bulletin.
    Under the OCC's assessment regulation, assessments for each 
national bank are due on March 31 and September 30 of each year.\43\ 
The semiannual assessment for each national bank is based on an 
institution's asset size and is calculated using a table and formula in 
the OCC's regulation.\44\ The OCC sets the specific rates for the table 
each year in the Notice of Comptroller of the Currency Fees (Notice of 
Fees).\45\ The OCC may provide a reduced semiannual assessment for each 
non-lead bank within a bank holding company.\46\
---------------------------------------------------------------------------

    \43\ See 12 CFR part 8. Part 8 contains parallel assessment 
rules for Federal branches and agencies.
    \44\ 12 CFR 8.2.
    \45\ See http://www.occ.gov/news-issuances/bulletins/2010/bulletin-2010-41.html (Notice of Comptroller of the Currency Fees 
for Year 2011).
    \46\ A ``lead bank'' is defined in the OCC's regulation as the 
largest national bank controlled by a company based on the total 
assets held by each national bank controlled by that company. 12 CFR 
8.2(a)(6)(ii)(A). A ``non-lead'' bank means a national bank that is 
not the lead bank controlled by a company that controls two or more 
national banks. Id. Sec.  8.2(a)(6)(ii)(B). The percentage of the 
discount for non-lead banks is set in the annual Notice of 
Comptroller of the Currency Fees.
---------------------------------------------------------------------------

    In addition to the semiannual assessment, the OCC applies a 
separate assessment for its examination of ``independent credit card 
banks'' and ``independent trust banks.''\47\ A bank is an independent 
credit card bank if it engages primarily in credit card operations and 
is not affiliated with a full-service national bank.\48\ The assessment 
is based on ``receivables attributable,'' defined as the total amount 
of outstanding balances due on credit card accounts owned by the bank 
(the receivables attributable to those accounts), minus receivables 
retained on the bank's balance sheet.
---------------------------------------------------------------------------

    \47\ 12 CFR 8.2(c), 8.6(c). The OCC also assesses a fee for 
special examinations and investigations, such as special 
examinations and investigations of affiliates of national banks. 12 
CFR 8.6.
    \48\ A ``full service national bank'' is defined as a bank that 
generates more than 50% of its interest and non-interest income from 
activities other than credit card operations or trust activities and 
is authorized according to its charter to engage in all types of 
permissible banking activities. 12 CFR 8.2(c)(3)(iii), 
8.6(c)(3)(ii).
---------------------------------------------------------------------------

    An ``independent trust bank'' is a national bank with trust powers 
that has fiduciary and related assets, does not primarily offer full-
service banking, and is not affiliated with a full-service national 
bank.\49\ The independent trust assessment is made up of a minimum 
amount, set in the Notice of Fees, and an additional amount for banks 
with over $1 billion in fiduciary and related assets. The specific rate 
applicable to fiduciary and related assets above $1 billion is also set 
in the annual Notice of Fees.
---------------------------------------------------------------------------

    \49\ 12 CFR 8.6(c)(3)(iii).
---------------------------------------------------------------------------

    The OCC applies a condition-based surcharge to the semiannual 
assessment of national banks.\50\ The condition surcharge applies to 
national banks with UFIRS ratings of 3, 4, or 5. The condition 
surcharge is determined by multiplying the general semiannual 
assessment by 1.5, in the case of any national bank that receives a 
composite UFIRS rating of 3, and 2.0 in the case of any national bank 
that receives a composite UFIRS rating of 4 or 5. The condition 
surcharge is assessed against, and limited to, the first $20 billion of 
a national bank's book assets.
---------------------------------------------------------------------------

    \50\ 12 CFR 8.2(d).
---------------------------------------------------------------------------

b. Description of the Proposed Rule
    The proposed rule would amend part 8 to incorporate Federal savings 
associations into the OCC's assessment structure. Under the proposed 
rules, these savings associations would be assessed using the same 
methodologies, rates, fees, and payment due dates that apply currently 
to national banks. The OTS's existing assessment regulation would no 
longer be in effect and will be repealed at a later date.
    Under the OCC's assessment system, some savings associations will 
pay marginally more assessments than in the past, while others will pay 
lower assessments. However, during the first two assessment cycles 
after the transfer date, the OCC will base savings association 
assessments on either the OCC's assessment regulation (as amended to 
include Federal savings associations) or the former OTS assessment 
structure, whichever yields the lower assessment for that savings 
association. After the March 2012 assessment, all national banks and 
Federal savings associations would be assessed using the OCC's 
assessment structure.\51\ The OCC believes that this phase-in will 
allow savings associations sufficient time to adjust to the OCC's 
assessment program.
---------------------------------------------------------------------------

    \51\ The OCC intends to implement this phase-in through an 
amended Notice of Comptroller of the Currency Fees.
---------------------------------------------------------------------------

    The proposed rule also implements section 605(a) of the Dodd-Frank 
Act, which provides the OCC (and other appropriate Federal banking 
agencies) with authority to conduct examinations of depository-
institution permissible activities of nondepository institution 
subsidiaries of depository institution holding companies. Section 605 
provides specific authority for the OCC and other regulators to assess 
such nondepository institution subsidiaries for the costs of 
examination. The proposed rule would implement this new statutory 
assessment authority.

IV. Request for Comments

    The OCC encourages comment on any aspect of this proposal and 
especially on those issues specifically noted in this preamble.

V. Regulatory Analysis

Regulatory Flexibility Act

    Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise 
required under

[[Page 30566]]

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. We 
have concluded that the proposed rule does not have an significant 
economic impact on a substantial number of small entities currently 
supervised by the OCC (i.e., national banks and Federal branches and 
agencies of foreign banks). In addition, although the proposed rule 
will directly affect all Federal savings associations, we have 
concluded that it does not have a significant economic impact on a 
substantial number of small Federal savings associations. Specifically, 
the amendments to part 4 do not contain new compliance requirements. 
Any costs that may be associated with integrating the functions of the 
two agencies, and other proposed changes to part 4, will be borne by 
the OCC. In addition, there are no costs directly associated with the 
proposed amendments to 12 CFR 5.50(f)(5) and Part 28, implementing 
sections 603 and 335 of the Dodd-Frank Act, respectively, or with the 
amendments necessary to apply national bank preemption standards to 
Federal savings associations. Furthermore, we have determined that the 
amendments to the preemption and visitorial powers provisions affecting 
national banks will not have a significant economic impact on a 
substantial number of small entities. Lastly, although the amendments 
to part 8, assessments, will economically impact a substantial number 
of small savings associations, this impact will not be significant. 
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.

Paperwork Reduction Act

    The rule contains several currently approved collections of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-
3520).\52\ The amendments adopted today do not introduce any new 
collections of information into the rules, nor do they amend the rules 
in a way that substantively modifies the collections of information 
that OMB has approved. Therefore, no PRA submissions to OMB are 
required, with the exception of non-substantive submissions to OMB to 
adjust the number of respondents.
---------------------------------------------------------------------------

    \52\ See OMB Control numbers 1557-0014, 1557-0200 and 1557-0223.
---------------------------------------------------------------------------

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 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 proposed 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 
proposal is not subject to Section 202 of the Unfunded Mandates Act.

List of Subjects

12 CFR Part 4

    National banks, Organization and functions, Reporting and 
recordkeeping requirements, Administrative practice and procedure, 
Freedom of Information Act, Records, Non-public information, Post-
employment activities.

12 CFR Part 5

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

12 CFR Part 7

    Computer technology, Credit, Insurance, Investments, National 
banks, Reporting and recordkeeping requirements, Securities, Surety 
bonds.

12 CFR Part 8

    National banks, Reporting and recordkeeping requirements.

12 CFR Part 28

    Foreign banking, National banks, Reporting and recordkeeping 
requirements.

12 CFR Part 34

    Mortgages, National banks, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, chapter I 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

    1. The authority citation for part 4 is revised to read as follows:

    Authority: 12 U.S.C. 1, 12 U.S.C. 93a, 12 U.S.C. 5321, 12 U.S.C. 
5412, and 12 U.S.C. 5414. 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, 1462a, 1463, 1464 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. Subpart E is also 
issued under 12 U.S.C. 1820(k).

    2. Revise Sec.  4.2 to read as follows:


Sec.  4.2  Office of the Comptroller of the Currency.

    The OCC is charged with assuring the safety and soundness of, and 
compliance with laws and regulations, fair access to financial 
services, and fair treatment of customers by, the institutions and 
other persons subject to its jurisdiction. The OCC examines, 
supervises, and regulates national banks, Federal branches and agencies 
of foreign banks, and Federal savings associations to carry out this 
mission. The OCC also issues rules and regulations applicable to state 
savings associations.


Sec.  4.3  [Amended]

    3. Amend Sec.  4.3 in the third sentence by adding ``a member of 
the Financial Stability Oversight Council,'' after ``Federal Deposit 
Insurance Corporation,''.
    4. Revise Sec.  4.4 to read as follows:


Sec.  4.4  Washington office and Web site.

    The Washington office of the OCC is the main office and 
headquarters of the OCC. The Washington office directs OCC policy, 
oversees OCC operations, and is responsible for the direct supervision 
of certain national banks and Federal savings associations, including 
the largest national banks and the largest Federal savings associations 
(through the Large Bank Supervision Department); other national banks 
and Federal savings associations requiring special supervision; and 
Federal branches and agencies of foreign banks (through the Large Bank 
Supervision Department). The Washington office is located at 250 E 
Street, SW.,

[[Page 30567]]

Washington, DC 20219. The OCC's Web site is at http://www.occ.gov.
    5. Amend Sec.  4.5 by:
    a. Revising paragraph (a); and
    b. In paragraph (b), adding ``and savings association'' after 
``support the bank''.
    The revision reads as follows:


Sec.  4.5  District and field offices.

    (a) District offices. Each district office of the OCC is 
responsible for the direct supervision of the national banks and 
Federal savings associations in its district, with the exception of the 
national banks and Federal savings associations supervised by the 
Washington office. The four district offices cover the United States, 
Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana 
Islands. The office address and the geographical composition of each 
district follows:

----------------------------------------------------------------------------------------------------------------
               District                         Office address                  Geographical composition
----------------------------------------------------------------------------------------------------------------
Northeastern District.................  Office of the Comptroller of    Connecticut, Delaware, District of
                                         the Currency, 340 Madison       Columbia, northeast Kentucky, Maine,
                                         Avenue, 5th Floor New York,     Maryland, Massachusetts, New Hampshire,
                                         NY 10173-0002.                  New Jersey, New York, North Carolina,
                                                                         Pennsylvania, Puerto Rico, Rhode
                                                                         Island, South Carolina, Vermont, the
                                                                         Virgin Islands, Virginia, and West
                                                                         Virginia.
Central District......................  Office of the Comptroller of    Illinois, Indiana, central and southern
                                         the Currency, One Financial     Kentucky, Michigan, Minnesota, eastern
                                         Place, Suite 2700, 440 South    Missouri, North Dakota, Ohio, and
                                         LaSalle Street, Chicago, IL     Wisconsin.
                                         60605.
Southern District.....................  Office of the Comptroller of    Alabama, Arkansas, Florida, Georgia,
                                         the Currency, 500 North Akard   Louisiana, Mississippi, Oklahoma,
                                         Street, Suite 1600, Dallas,     Tennessee, and Texas.
                                         TX 75201.
Western District......................  Office of the Comptroller of    Alaska, Arizona, California, Colorado,
                                         the Currency, 1225 17th         Hawaii, Idaho, Iowa, Kansas, western
                                         Street, Suite 300, Denver, CO   Missouri, Montana, Nebraska, Nevada,
                                         80202.                          New Mexico, Northern Mariana Islands,
                                                                         Oregon, South Dakota, Utah, Washington,
                                                                         Wyoming, and Guam.
----------------------------------------------------------------------------------------------------------------

    6. Amend Sec.  4.6 by:
    a. Revising the section heading;
    b. In paragraph (a):
    i. Adding in the first sentence ``and Federal savings 
associations'' after ``examines national banks''; ``(with respect to 
national banks) and 1463(a)(1) and 1464 (with respect to Federal 
savings associations)'' after ``12 U.S.C. 481''; and ``(with respect to 
national banks and Federal savings associations)'' after ``12 U.S.C. 
1820(d)''; and
    ii. Adding in the second sentence ``and Federal savings 
association'' after ``every national bank''.
    c. In paragraph (b):
    i. Adding in the introductory text ``or a Federal savings 
association'' after ``a national bank'';
    ii. Adding in paragraphs (b)(1), (b)(2), (b)(4), and (b)(5) ``or 
Federal savings association'' after ``bank'' each time it appears; and
    iii. In paragraph (b)(3) removing ``, the OCC'' in the introductory 
text and revising paragraphs (b)(3)(i) and (b)(3)(ii); and
    iv. In paragraph (b)(4), adding ``, OTS'' after ``OCC''.
    d. In paragraph (c), adding ``or Federal savings association'' 
after ``national bank''.
    The revisions read as follows:


Sec.  4.6  Frequency of examination of national banks and Federal 
savings associations.

* * * * *
    (b) * * *
    (3) * * *
    (i) The bank or Federal savings association was assigned a rating 
of 1 or 2 for management as part of the bank's or association's rating 
under the Uniform Financial Institutions Rating System; and
    (ii) The bank or Federal savings association was assigned a 
composite rating of 1 or 2 under the Uniform Financial Institutions 
Rating System.
* * * * *


Sec.  4.7  [Amended]

    7. In paragraph (a) of Sec.  4.7, remove the phrase ``(h) and (i)'' 
and add in its place ``(g) and (h)''.
    8. Amend Sec.  4.11 by:
    a. In paragraph (a), removing ``industry'' and adding in its place 
``and savings association industries'' after the word ``banking'';
    b. Adding paragraph (b)(4), as follows.


Sec.  4.11  Purpose and scope.

* * * * *
    (b) * * *
    (4) This subpart does not apply to FOIA requests filed with the 
Office of Thrift Supervision (OTS) before July 21, 2011. These requests 
are subject to the rules of the OTS in effect on July 20, 2011.
    9. Amend Sec.  4.12 by:
    a. Removing ``and'' at the end of paragraph (b)(8) and removing the 
period and adding ``; and'' at the end of paragraph (b)(9); and
    b Adding paragraph (10), as follows:


Sec.  4.12  Information available under the FOIA.

* * * * *
    (b) * * *
    (10) Any OTS information similar to that listed in paragraphs 
(b)(1) through (9) of this section, to the extent this information is 
in the possession of the OCC.
* * * * *
    10. Amend Sec.  4.14 by:
    a. Adding in paragraph (a)(7), footnote. 1, first sentence, ``and 
Federal savings associations'' after ``banks'' and removing ``, such as 
the Consolidated Report of Condition and Income (FFIEC 031-034),'';
    b. Adding in paragraph (a)(9) ``, or parts 563d and 563g of chapter 
V'' after ``of this chapter'';
    c. Removing ``and'' at the end of paragraph (a)(10);
    d. Removing the period at the end of paragraph (a)(11) and adding 
in its place ``; and'';
    e. Adding paragraph (a)(12); and
    f. Revising paragraph (c).
    The addition and revision read as follows:


Sec.  4.14  Public inspection and copying.

    (a) * * *
    (12) Any OTS information similar to that listed in paragraphs 
(a)(1) through (a)(12) of this section, to the extent this information 
is in the possession of the OCC.
* * * * *
    (c) Addresses. The information described in paragraphs (a)(1) 
through (10) and (a)(12) of this section is available from the 
Disclosure Officer, Communications Division, Office of the Comptroller 
of the Currency, 250 E Street, SW., Washington, DC 20219. The 
information described in paragraph (a)(11) of this section in the case 
of both banks and Federal savings associations is available from the 
Licensing Manager

[[Page 30568]]

at the appropriate district office at the address listed in Sec.  
4.5(a), or in the case of banks and savings associations supervised by 
Large Bank Supervision, from the Large Bank Licensing Expert, Licensing 
Department, Office of the Comptroller of the Currency, 250 E Street, 
SW., Washington, DC 20219.


Sec.  4.15  [Amended]

    11. Amend Sec.  4.15 by:
    a. Adding in paragraph (b)(1) ``through the OCC's FOIA Web portal 
at https://appsec.occ.gov/publicaccesslink/palMain.aspx, or'' after 
``must submit the request or appeal''; and
    b. Removing in paragraph (c)(2) ``OCC's Director of Communications 
or that person's'' and adding in its place ``Comptroller or the 
Comptroller's''.


Sec.  4.16  [Amended]

    12. Amend Sec.  4.16:
    a. In paragraph (b)(1)(i) by adding ``or to the Federal Home Loan 
Bank Board, the predecessor of the OTS,'' after ``OCC'';
    b. In paragraph (b)(1)(i)(C) by removing ``OCC'' and adding ``from 
the OCC or the Federal Home Loan Bank Board, the predecessor of the 
OTS'' after ``confidentiality'';
    c. In paragraph (b)(1)(ii) by adding ``or to the OTS (or the 
Federal Home Loan Bank Board, its predecessor agency)'' after ``OCC'';
    d. In paragraph (b)(1)(ii)(B) by adding ``or to the OTS (or the 
Federal Home Loan Bank Board, its predecessor agency)'' after ``OCC''; 
and
    e. In paragraph (b)(2)(iv) by adding ``or the OTS (or the Federal 
Home Loan Bank Board, its predecessor agency)'' after ``OCC''.
    13. Revise Sec.  4.18 to read as follows:


Sec.  4.18  How to track a FOIA request.

    (a) Tracking number. (1) Internet requests. The OCC will issue a 
tracking number to all FOIA requesters automatically upon receipt of 
the request (as described in Sec.  4.15(g)) by the OCC's Communications 
Department via the OCC's Freedom of Information Request Portal, https://appsec.occ.gov/publicaccesslink/palMain.aspx. The tracking number will 
be sent via electronic mail to the requester.
    (2) If a requester does not have Internet access. The OCC will 
issue a tracking number to FOIA requesters without Internet access 
within 5 days of the receipt of the request (as described in Sec.  
4.15(g)) in the OCC's Communications Department. The OCC will mail the 
tracking number to the requester's physical address, as provided in the 
FOIA request.
    (b) Status of request. FOIA requesters may track the progress of 
their requests via the OCC's Freedom of Information Request Portal, 
https://appsec.occ.gov/publicaccesslink/palMain.aspx. Requesters 
without Internet access may continue to contact the Disclosure Officer, 
Communications Division, Office of the Comptroller of the Currency, at 
(202) 874-4700 to check the status of their FOIA request(s).
    14. Amend Sec.  4.31 by:
    a. Adding in paragraph (a)(5) ``Federal savings associations,'' 
after ``national banks,'';
    b. Adding in paragraph (b)(3) ``or state savings association'' 
after ``state bank''; and
    c. Adding paragraph (b)(5) to read as follows:


Sec.  4.31  Purpose and scope.

* * * * *
    (b) * * *
    (5) This subpart does not apply to requests for non-public 
information filed with the Office of Thrift Supervision (OTS) before 
July 21, 2011. These requests are subject to the rules of the OTS in 
effect on July 20, 2011.
    15. Amend Sec.  4.32 by:
    a. Revising paragraph (b)(1)(i);
    b. In paragraph (b)(1)(ii) adding ``or the OTS'' after ``OCC'', 
removing ``the OCC's'', and adding ``either agency's'' after ``with'';
    c. Adding in paragraph (b)(1)(iii) ``or OTS'' after ``compiled by 
the OCC'';
    d. Revising paragraph (b)(1)(v);
    e. Adding in paragraph (b)(1)(vi) ``, Federal savings associations, 
and savings and loan holding companies'' after ``national banks'';
    f. Removing the second sentence in paragraph (b)(2); and
    g. Revising paragraph (e);
    The revisions read as follows:


Sec.  4.32  Definitions.

* * * * *
    (b) * * *
    (1) * * *
    (i) A record created or obtained:
    (A) By the OCC in connection with the OCC's performance of its 
responsibilities, such as a record concerning supervision, licensing, 
regulation, and examination of a national bank, a Federal savings 
association, a bank holding company, a savings and loan holding 
company, or an affiliate; or
    (B) By the OTS in connection with the OTS's performance of its 
responsibilities, such as a record concerning supervision, licensing, 
regulation, and examination of a Federal savings association, a savings 
and loan holding company, or an affiliate;
* * * * *
    (v) Testimony from, or an interview with, a current or former OCC 
employee, officer, or agent or a former OTS employee, officer, or agent 
concerning information acquired by that person in the course of his or 
her performance of official duties with the OCC or OTS or due to that 
person's official status at the OCC or OTS; and
* * * * *
    (e) Supervised entity includes a national bank or Federal savings 
association, a subsidiary of a national bank or Federal savings 
association, or a Federal branch or agency of a foreign bank licensed 
by the OCC as defined under 12 CFR 28.11(g) and (h), or any other 
entity supervised by the OCC.
* * * * *
    16. Revise Sec.  4.35(a)(5) to read as follows:


Sec.  4.35  Consideration of requests.

    (a) * * *
    (5) Notice to subject national banks and Federal savings 
associations. Following receipt of a request for non-public OCC 
information, the OCC generally notifies the national bank or Federal 
savings association that is the subject of the requested information, 
unless the OCC, in its discretion, determines that to do so would 
advantage or prejudice any of the parties in the matter at issue.
* * * * *
    17. Amend Sec.  4.37 by:
    a. In paragraph (a):
    i. Adding in the heading ``; former OTS employees or agents'' after 
``former OCC employees or agents'';
    ii. Adding ``or former OTS employee or agent,'' after ``former OCC 
employee or agent'' each time that phrase appears;
    iii. Adding at the end of paragraph (a)(2)(ii), ``and former OTS 
employees or agents'';
    b. In paragraph (b):
    i. Adding in paragraph (b)(1)(i) introductory text ``Federal 
savings association,'' after ``national bank,'';
    ii. Revising paragraph (b)(2) introductory text;
    iii. Adding at the end of paragraph (b)(2)(ii) ``or Federal savings 
association'';
    iv. Adding in paragraph (b)(3) introductory text '' Federal savings 
association,'' after ``national bank,''; and
    c. In paragraph (c), adding in the first sentence ``and state 
savings association'' after ``state bank''.
    The revision reads as follows:


Sec.  4.37  Persons and entities with access to OCC information; 
prohibition on dissemination.

* * * * *
    (b) * * *
    (2) Exception for national banks and Federal savings associations. 
When

[[Page 30569]]

necessary or appropriate for business purposes, a national bank, 
Federal savings association, or holding company, or any director, 
officer, or employee thereof, may disclose non-public OCC information, 
including information contained in, or related to, OCC reports of 
examination, to a person or organization officially connected with the 
bank or Federal savings association as officer, director, employee, 
attorney, auditor, or independent auditor. A national bank, Federal 
savings association, or holding company or a director, officer, or 
employee thereof, may also release non-public OCC information to a 
consultant under this paragraph if the consultant is under a written 
contract to provide services to the bank or Federal savings association 
and the consultant has a written agreement with the bank or Federal 
savings association in which the consultant:
* * * * *


Sec.  4.39  [Amended]

    18. In Sec.  4.39(a), add ``OCC or OTS'' after ``former''.

APPENDIX A TO SUBPART C OF PART 4 [AMENDED]

    19. In Appendix A to Subpart C of Part 4:
    a. In I. Model Stipulation, second paragraph, add ``, 1463(a)(1), 
1464(a)(1), and 1464(d)(1)(B)(i)'' after 12 U.S.C. 481''; and
    b. In II. Model Protective Order, add ``, 1463(a)(1), 1464(a)(1), 
and 1464(d)(1)(B)(i)'' after 12 U.S.C. 481'' in the second paragraph.
    20. Amend Sec.  4.73 by:
    a. In the definition of ``Consultant'':
    i. Adding ``savings association,'' after ``national bank,'';
    ii. Adding ``savings and loan holding company,'' after ``bank 
holding company,'' each time it appears; and
    iii. Adding ``savings association,'' after ``such bank,'';
    b. In the definition of ``Control'' adding ``or in section 10 of 
the Home Owners' Loan Act (12 U.S.C. 1467a), as applicable under the 
circumstances'' after ``1841(a))'';
    c. Adding definitions of ``Savings association'' and ``Savings and 
loan holding company'' in alphabetical order; and
    d. Revising the definition of ``Senior examiner''.
    The additions and revisions read as follows:


Sec.  4.73  Definitions.

* * * * *
    Savings association has the meaning given in section 3 of the FDI 
Act (12 U.S.C. 1813(b)(1)).
    Savings and loan holding company means any company that controls a 
savings association or any other company that is a savings and loan 
holding company (as provided in section 10 of the Home Owners' Loan Act 
(12 U.S.C. 1467a)).
    Senior examiner. For purposes of this subpart, an officer or 
employee of the OCC is considered to be the ``senior examiner'' for a 
particular national bank or savings association if--
    (1) The officer or employee has been authorized by the OCC to 
conduct examinations on behalf of the OCC or had been authorized by the 
Office of Thrift Supervision (OTS) to conduct examinations on behalf of 
the OTS;
    (2) The officer or employee has been assigned continuing, broad, 
and lead responsibility for examining the national bank or savings 
association; and
    (3) The officer's or employee's responsibilities for examining the 
national bank or savings association--
    (i) Represent a substantial portion of the officer's or employee's 
assigned responsibilities; and
    (ii) Require the officer or employee to interact routinely with 
officers or employees of the national bank or savings association, or 
its affiliates.
    21. Effective July 21, 2012, in Sec.  4.73, revise the definition 
of Senior examiner to read as follows:


Sec.  4.73  Definitions.

* * * * *
    Senior examiner. For purposes of this subpart, an officer or 
employee of the OCC is considered to be the ``senior examiner'' for a 
particular national bank or savings association if--
    (1) The officer or employee has been authorized by the OCC to 
conduct examinations on behalf of the OCC;
    (2) The officer or employee has been assigned continuing, broad, 
and lead responsibility for examining the national bank or savings 
association; and
    (3) The officer's or employee's responsibilities for examining the 
national bank or savings association--
    (i) Represent a substantial portion of the officer's or employee's 
assigned responsibilities;
    (ii) Require the officer or employee to interact routinely with 
officers or employees of the national bank or savings association, or 
its affiliates.''
    22. Revise Sec.  4.74 to read as follows:


Sec.  4.74  One-year post-employment restrictions.

    An officer or employee of the OCC who serves, or former officer or 
employee of the OTS who served, as the senior examiner of a national 
bank or savings association for two or more months during the last 
twelve months of such individual's employment with the OCC or OTS may 
not, within one year after leaving the employment of the OCC or OTS, 
knowingly accept compensation as an employee, officer, director or 
consultant from the national bank, savings association, or any company 
(including a bank holding company or savings and loan holding company) 
that controls the national bank or savings association.
    23. Effective July 21, 2012, revise Sec.  4.74 to read as follows:


Sec.  4.74  One-year post-employment restrictions.

    An officer or employee of the OCC who serves as the senior examiner 
of a national bank or savings association for two or more months during 
the last twelve months of such individual's employment with the OCC may 
not, within one year after leaving the employment of the OCC, knowingly 
accept compensation as an employee, officer, director or consultant 
from the national bank, savings association, or any company (including 
a bank holding company or savings and loan holding company) that 
controls the national bank or savings association.
    24. Revise Sec.  4.75 to read as follows:


Sec.  4.75  Waivers.

    The post-employment restrictions set forth in section 10(k) of the 
FDI Act (12 U.S.C. 1820(k)) and Sec.  4.74 do not apply to any officer 
or employee of the OCC, or any former officer or employee of the OCC or 
OTS, if the Comptroller of the Currency certifies, in writing and on a 
case-by-case basis, that granting the individual a waiver of the 
restrictions would not affect the integrity of the OCC's supervisory 
program.
    25. Effective July 21, 2012, revise Sec.  4.75 to read as follows:


Sec.  4.75  Waivers.

    The post-employment restrictions set forth in section 10(k) of the 
FDI Act (12 U.S.C. 1820(k)) and Sec.  4.74 do not apply to any officer 
or employee of the OCC, or any former officer or employee of the OCC, 
if the Comptroller of the Currency certifies, in writing and on a case-
by-case basis, that granting the individual a waiver of the 
restrictions would not affect the integrity of the OCC's supervisory 
program.
    26. Amend Sec.  4.76 by revising paragraph (a) to read as follows:


Sec.  4.76  Penalties.

    (a) Penalties under section 10(k) of FDI Act (12 U.S.C. 1820(k)). 
If a senior examiner of a national bank or savings

[[Page 30570]]

association, after leaving the employment of the OCC or OTS, accepts 
compensation as an employee, officer, director, or consultant from that 
bank, savings association, or any company (including a bank holding 
company or savings and loan holding company) that controls that bank or 
savings association in violation of Sec.  4.74 then the examiner shall, 
in accordance with section 10(k)(6) of the FDI Act (12 U.S.C. 
1820(k)(6)), be subject to one of the following penalties--
    (1) An order--
    (i) Removing the individual from office or prohibiting the 
individual from further participation in the affairs of the relevant 
national bank, savings association, bank holding company, savings and 
loan holding company, or other company that controls such institution 
for a period of up to five years; and
    (iii) Prohibiting the individual from participating in the affairs 
of any insured depository institution for a period of up to five years; 
or
    (2) A civil monetary penalty of not more than $250,000.
* * * * *
    27. Effective July 21, 2012, amend Sec.  4.76 by revising paragraph 
(a) to read as follows:


Sec.  4.76  Penalties.

    (a) Penalties under section 10(k) of FDI Act (12 U.S.C. 1820(k)). 
If a senior examiner of a national bank or savings association, after 
leaving the employment of the OCC, accepts compensation as an employee, 
officer, director, or consultant from that bank, savings association, 
or any company (including a bank holding company or savings and loan 
holding company) that controls that bank or savings association in 
violation of Sec.  4.74 then the examiner shall, in accordance with 
section 10(k)(6) of the FDI Act (12 U.S.C. 1820(k)(6)), be subject to 
one of the following penalties--
    (1) An order--
    (i) Removing the individual from office or prohibiting the 
individual from further participation in the affairs of the relevant 
national bank, savings association, bank holding company, savings and 
loan holding company, or other company that controls such institution 
for a period of up to five years; and
    (iii) Prohibiting the individual from participating in the affairs 
of any insured depository institution for a period of up to five years; 
or
    (2) A civil monetary penalty of not more than $250,000.
* * * * *

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

    28. The authority citation for part 5 continues to read as:

    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).

    29. Amend Sec.  5.34 by revising paragraph (a) and the first 
sentence of paragraph (e)(3) to read as follows:


Sec.  5.34  Operating subsidiaries.

    Authority: 12 U.S.C. 24 (Seventh), 24a, 25b, 93a, 3101 et seq.
* * * * *
    (e) * * *
    (3) Examination and supervision. An operating subsidiary conducts 
activities authorized under this section pursuant to the same 
authorization, terms and conditions that apply to the conduct of such 
activities by its parent national bank, except as otherwise provided 
with respect to the application of state law under sections 1044(e) and 
1045 of the Dodd-Frank Wall Street Reform and Consumer Protection Act 
(12 U.S.C. 25b). * * *
* * * * *
    30a. Amend Sec.  5.50 by redesignating paragraph (f)(6) as 
paragraph (f)(7) and adding a new paragraph (f)(6) to read as follows:


Sec.  5.50  Change in bank control; reporting of stock loans.

* * * * *
    (f) * * *
    (6) Disapproval of notice involving credit card banks or trust 
banks. (i) In general. The OCC shall disapprove a notice if the 
proposed change in control occurs before July 21, 2013, and would 
result in the direct or indirect control of a credit card bank or trust 
bank, as defined in section 2(c)(2)(F) and (D) of the Bank Holding 
Company Act of 1956 (12 U.S.C. 1841(c)(2)(F) and (D)), by a commercial 
firm. For purposes of this paragraph a company is a ``commercial firm'' 
if the annual gross revenues derived by the company and all of its 
affiliates from activities that are financial in nature (as defined in 
section 4(k) of the Bank Holding Company Act of 1956 (12 U.S.C. 
1843(k))) and, if applicable, from the ownership or control of one or 
more insured depository institutions, represent less than 15 percent of 
the consolidated annual gross revenues of the company.
    (ii) Exception to disapproval. Paragraph (6)(i) shall not apply to 
a proposed change in control of a credit card bank or trust bank that:
    (A)(1) Is in danger of default, as determined by the OCC;
    (2) Results from the merger or whole acquisition of a commercial 
firm that directly or indirectly controls the credit card bank or trust 
bank in a bona fide merger with or acquisition by another commercial 
firm, as determined by the OCC; or
    (3) Results from the acquisition of voting shares of a publicly 
traded company that controls a credit card bank or trust bank, if, 
after the acquisition, the acquiring shareholder (or group of 
shareholders acting in concert) holds less than 25 percent of any class 
of the voting shares of the company; and
    (B) Has obtained all regulatory approvals otherwise required for 
such change of control under any applicable Federal or state law, 
including review pursuant to section 7(j) of the Federal Deposit 
Insurance Act (12 U.S.C. 1817(j)) and 12 CFR 5.50.
* * * * *


Sec.  5.50  [Amended]

    30b. Effective July 21, 2013, amend Sec.  5.50 by removing 
paragraph (f)(6) and redesignating paragraph (f)(7) as paragraph 
(f)(6).

PART 7--BANK ACTIVITIES AND OPERATIONS

    31. The authority citation for part 7 is revised to read as 
follows:

    Authority: 12 U.S.C. 1 et seq., 25b, 71, 71a, 92, 92a, 93, 93a, 
481, 484, 1465, 1818 and 5412(b)(2)(B).

Subpart D--Preemption

    32. Amend Sec.  7.4000 by:
    a. Revising the first sentence of paragraph (a)(1);
    b. Revising paragraph (a)(2)(iv);
    c. Redesignating paragraphs (b) and (c) as paragraphs (c) and (d), 
respectively;
    d. Adding a new paragraph (b); and
    e. Revising newly designated paragraph (c)(2).
    The additions and revisions read as follows:


Sec.  7.4000  Visitorial powers.

    (a) * * *
    (1) Under 12 U.S.C. 484, only the OCC or an authorized 
representative of the OCC may exercise visitorial powers with respect 
to national banks. * * *
    (2) * * *
    (iv) Investigating or enforcing compliance with any applicable 
Federal or state laws concerning those activities.
* * * * *
    (b) Exclusion. In accordance with the decision of the Supreme Court 
in Cuomo v. Clearing House Assn., L. L. C., 129 S. Ct. 2710 (2009), an 
action against

[[Page 30571]]

a national bank in a court of appropriate jurisdiction brought by a 
state attorney general (or other chief law enforcement officer) to 
enforce a non-preempted state law against a national bank and to seek 
relief as authorized thereunder is not an exercise of visitorial powers 
under 12 U.S.C. 484.
    (c) * * *
    (2) Exception for courts of justice. National banks are subject to 
such visitorial powers as are vested in the courts of justice. This 
exception pertains to the powers inherent in the judiciary.
* * * * *


Sec.  7.4006  [Removed and Reserved]

    33. Remove and reserve Sec.  7.4006.
    34. Amend Sec.  7.4007 by:
    a. Removing paragraph (b)(1);
    b. Redesignating paragraph (b)(2) introductory text as paragraph 
(b) introductory text;
    c. Redesignating paragraphs (b)(2)(i) through (vii) as paragraphs 
(b)(1) through (7), respectively;
    d. Revising paragraph (c) introductory text;
    e. Revising footnote 5 in paragraph (c)(3); and
    f. Revising paragraph (c)(8).
    The revisions read as follows:


Sec.  7.4007  Deposit-taking.

* * * * *
    (c) State laws that are not preempted. State laws on the following 
subjects are not inconsistent with the deposit-taking powers of 
national banks and apply to national banks to the extent consistent 
with the decision of the Supreme Court in Barnett Bank of Marion 
County, N.A. v. Nelson, Florida Insurance Commissioner, et al. 517 U.S. 
25 (1996):
* * * * *
    (3) Criminal law; \3\

    \3\ But see the distinction drawn by the Supreme Court in Easton 
v. Iowa, 188 U.S. 220, 238 (1903), where the Court stated that 
``[u]ndoubtedly a state has the legitimate power to define and 
punish crimes by general laws applicable to all persons within its 
jurisdiction * * *. But it is without lawful power to make such 
special laws applicable to banks organized and operating under the 
laws of the United States.'' Id. at 239 (holding that Federal law 
governing the operations of national banks preempted a state 
criminal law prohibiting insolvent banks from accepting deposits).
* * * * *
    (8) Any other law that the OCC determines to be applicable to 
national banks in accordance with the decision of the Supreme Court in 
Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance 
Commissioner, et al. 517 U.S. 25 (1996), or that is made applicable by 
Federal law.
    35. Amend Sec.  7.4008 by:
    a. Removing paragraph (d)(1);
    b. Redesignating paragraph (d)(2) introductory text as paragraph 
(d) introductory text;
    c. Redesignating paragraphs (d)(2)(i) through (x) as paragraphs 
(d)(1) through (10), respectively; and
    d. Revising paragraphs (e) introductory text; and (e)(8).
    The revisions read as follows:


Sec.  7.4008  Lending.

* * * * *
    (e) State laws that are not preempted. State laws on the following 
subjects are not inconsistent with the non-real estate lending powers 
of national banks and apply to national banks to the extent consistent 
with the decision of the Supreme Court in Barnett Bank of Marion 
County, N.A. v. Nelson, Florida Insurance Commissioner, et al., 517 
U.S. 25 (1996):
* * * * *
    (8) Any other law that the OCC determines to be applicable to 
national banks in accordance with the decision of the Supreme Court in 
Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance 
Commissioner, et al., 517 U.S. 25 (1996) or that is made applicable by 
Federal law.


Sec.  7.4009  [Removed and Reserved]

    36. Remove and reserve Sec.  7.4009.
    37. Add Sec.  7.4010 to read as follows:


Sec.  7.4010  Applicability of state law and visitorial powers to 
Federal savings associations and subsidiaries.

    (a) In accordance with section 1046 of the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (12 U.S.C. 25b), state laws apply to 
Federal savings associations and their subsidiaries to the same extent 
and in the same manner that those laws apply to national banks and 
their subsidiaries.
    (b) In accordance with section 1047 of the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (12 U.S.C. 1465), the provisions of 
section 5136C(i) of the Revised Statutes regarding visitorial powers 
apply to Federal savings associations and their subsidiaries to the 
same extent and in the same manner as if they were national banks or 
national bank subsidiaries.

PART 8--ASSESSMENT OF FEES

    38. The authority citation for part 8 is revised to read as 
follows:

    Authority: 12 U.S.C. 16, 93a, 481, 482, 1467, 1831c, 1867, 3102, 
3108, and 5412(b)(1)(B); and 15 U.S.C. 78c and 78 l.

    39. Section 8.1 is revised to read as follows:


Sec.  8.1  Scope and application.

    The assessments contained in this part are made pursuant to the 
authority contained in 12 U.S.C. 16, 93a, 481, 482, 1467, 1831c, 1867, 
3102, and 3108; and 15 U.S.C. 78c and 78l.
    40. Section 8.2 is amended by:
    a. Adding in paragraph (a) introductory text ``and each Federal 
savings association'' after ``each national bank'' both times it 
appears;
    b. Adding in the table that follows paragraph (a), in the caption 
above the first two columns, ``or Federal savings association's'' after 
``If the bank's'';
    c. Adding in paragraph (a)(1) in the first sentence ``and every 
Federal savings association'' after ``Every national bank''; inserting, 
in the second sentence, ``or Federal savings association's'' after ``A 
bank's''; and inserting, in the third sentence, ``or Federal saving 
association'' after ``bank'';
    d. Adding in paragraph (a)(2) ``or Federal savings association'' 
after ``bank;
    e. Adding in paragraph (a)(3) ``or Federal savings association's'' 
after ``bank's'';
    f. Revising paragraph (a)(5) to read as follows;
    g. Adding in paragraph (a)(6)(i) ``or non-lead Federal savings 
association'' after ``each non-lead bank'';
    h. Revising paragraphs (a)(6)(ii)(A) and (B);
    i. Adding in paragraph (a)(6)(ii)(C) ``with respect to national 
banks'' after ``Control and company'';
    j. Adding paragraph (a)(6)(ii)(D);
    k. Revising paragraph (c) heading;
    l. In paragraph (c)(1), by adding ``and independent credit card 
Federal savings association'' after ``independent credit card bank''; 
and inserting ``or Federal savings association'' after ``owned by the 
bank'';
    m. Revising paragraph (c)(2) heading;
    n. Adding in paragraph (c)(2):
    i. ``and an independent credit card Federal savings association'' 
after ``independent credit card bank'';
    ii. ``or Federal savings association'' after ``notwithstanding that 
the bank''; and
    iii. ``or full-service Federal savings association,'' after ``full-
service national bank'';
    o. Adding in paragraph (c)(3)(i) ``, with respect to national 
banks,'' after ``Affiliate'';
    p. Redesignating paragraphs (c)(3)(ii) through (v) as paragraphs 
(c)(3)(iii), (c)(3)(iv), (c)(3)(vi), and (c)(3)(viii) respectively;
    q. Adding a new paragraph (c)(3)(ii);
    r. Revising newly redesignated paragraph (c)(3)(iii);
    s. Adding new paragraph (c)(3)(v);
    t. Adding paragraph (c)(3)(vii);

[[Page 30572]]

    u. In newly redesignated paragraph (c)(3)(viii) adding ``or an 
independent credit card Federal savings association'' after 
``independent credit card bank'', and by adding ``or Federal savings 
association's'' after ``bank's'';
    v. Adding in paragraph (c)(4) ``and independent credit card Federal 
savings associations'' after ``Independent credit card banks''; and
    w. Revising paragraph (d) heading and adding in paragraphs (d)(1) 
and (d)(2), ``or Federal savings association'' after ``in the case of 
any bank'' each time it appears.
    The additions and revisions read as follows:


Sec.  8.2  Semiannual assessment.

    (a) * * *
    (5) The specific marginal rates and complete assessment schedule 
will be published in the ``Notice of Comptroller of the Currency 
Fees,'' provided for at Sec.  8.8 of this part. Each semiannual 
assessment is based upon the total assets shown in the national bank's 
or Federal savings association's most recent ``Consolidated Reports of 
Condition and Income'' (Call Report) or ``Thrift Financial Report,'' as 
appropriate, preceding the payment date. Each bank or Federal savings 
association subject to the jurisdiction of the Comptroller of the 
Currency on the date of the second or fourth quarterly Call Report or 
Thrift Financial Report, as appropriate, required by the Office under 
12 U.S.C. 161 and 12 U.S.C. 1464(v) is subject to the full assessment 
for the next six month period.
* * * * *
    (b) * * *
    (6) * * *
    (ii) * * *
    (A) Lead bank or lead Federal savings association means the largest 
national bank or Federal savings association controlled by a company, 
based on a comparison of the total assets held by each national bank or 
Federal savings association controlled by that company as reported in 
each bank's or savings association's Call Report or Thrift Financial 
Report, as appropriate, filed for the quarter immediately preceding the 
payment of a semiannual assessment.
    (B) Non-lead bank or non-lead Federal savings association means a 
national bank or Federal savings association that is not the lead bank 
or lead savings association controlled by a company that controls two 
or more national banks or savings associations.
* * * * *
    (D) Control and company with respect to Federal savings 
associations have the same meanings as these terms have in section 
10(a) of the Home Owners' Loan Act (12 U.S.C. 1467a(a)).
* * * * *
    (c) Additional assessment for independent credit card banks and 
independent credit card Federal savings associations. * * *
    (2) Credit card banks and independent credit card Federal savings 
associations affiliated with full-service national banks or Federal 
savings associations. * * *
* * * * *
    (3) * * *
    (ii) Affiliate, with respect to Federal savings associations, has 
the same meaning as in 12 U.S.C. 1462(9).
    (iii) Engaged primarily in card operations means a bank described 
in section 2(c)(2)(F) of the Bank Holding Company Act (12 U.S.C. 
1841(c)(2)(F)) or a bank or a Federal savings association whose ratio 
of total gross receivables attributable to the bank's or Federal 
savings association's balance sheet assets exceeds 50%.''
* * * * *
    (v) Full-service Federal savings association is a Federal savings 
association that generates more than 50% of its interest and non-
interest income from activities other than credit card operations or 
trust activities and is authorized according to its charter to engage 
in all types of activities permissible for Federal savings 
associations.
* * * * *
    (vii) Independent credit card Federal savings association is a 
Federal savings association that engages primarily in credit card 
operations and is not affiliated with a full-service Federal savings 
association.
* * * * *
    (d) Surcharge based on the condition of the bank or Federal savings 
association. * * *
* * * * *
    41. Section 8.6 is amended by:
    a. Revising paragraph (a) introductory text;
    b. Adding in paragraph (a)(1) ``and Federal savings associations'' 
after ``national banks'';
    c. Adding in paragraph (a)(2) ``, and Federal savings 
associations'' after ``foreign banks'';
    d. Adding in paragraph (a)(3) ``or Federal savings association'' 
after ``particular bank''; adding ``or Federal savings association's'' 
after ``significance to the bank's''; and adding ``or Federal savings 
association'' after ``which the bank'';
    e. Adding in paragraph (a)(4) ``, Federal savings associations,'' 
after ``banks'' and removing the word ``and'' at the end of the 
paragraph;
    f. Removing in paragraph (a)(5) the period at the end of the 
sentence and adding the phrase ``; and'' in its place;
    g. Adding paragraph (a)(6);
    h. Revising the paragraph (c) heading and paragraph (c)(1) 
introductory text heading;
    i. Adding in paragraph (c)(1) introductory text ``and independent 
trust Federal savings associations'' after ``independent trust banks'';
    j. Adding in paragraph (c)(1)(i) and (c)(1)(ii) ``and independent 
trust Federal savings associations'' after ``independent trust banks'';
    k. Adding in paragraph (c)(1)(iii) ``and independent trust Federal 
savings association'' after ``independent trust bank'';
    l. Revising the headings of paragraph (c)(1)(ii) and (c)(1)(iii);
    m. Revising paragraph (c)(2);
    n. Adding in paragraph (c)(3)(i) ``with respect to a national 
bank'' after ``Affiliate'';
    o. Redesignating paragraphs (c)(3)(ii), (c)(3)(iii), and (c)(3)(iv) 
as paragraphs (c)(3)(iii), (c)(3)(v), and (c)(3)(vii), respectively and 
removing the ``and'' at the end of newly designated paragraph (v);
    p. Adding new paragraphs (c)(3)(ii), (c)(3)(iv), and (c)(3)(vi);
    q. Revising, effective from July 21, 2011 to December 31, 2011, 
newly designated paragraph (c)(3)(vii) to read as follows; and
    r. Adding paragraph (c)(3)(viii).
    The additions and revisions read as follows:


Sec.  8.6  Fees for special examinations and investigations.

    (a) Fees. Pursuant to the authority contained in 12 U.S.C. 16, 481, 
482, 1467, and 1831c, the Office of the Comptroller of the Currency may 
assess a fee for:
* * * * *
    (6) Conducting examinations of depository-institution permissible 
activities of nondepository institution subsidiaries of depository 
institution holding companies pursuant to section 605(a) of the Dodd-
Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 1831c).
* * * * *
    (c) Additional assessments on trust banks and trust Federal savings 
associations--(1) Independent trust banks and independent trust savings 
associations. * * *
* * * * *
    (ii) Additional amount for independent trust banks and

[[Page 30573]]

independent trust Federal savings associations with fiduciary and 
related assets in excess of $1 billion. * * *
    (iii) Surcharge based on the condition of the bank or of the 
Federal savings association. * * *
    (2) Trust banks affiliated with full-service national banks and 
trust Federal savings associations affiliated with full-service Federal 
savings associations. The OCC will assess a trust bank and a trust 
Federal savings association in accordance with paragraph (c)(1) of this 
section, notwithstanding that the bank is affiliated with a full-
service national bank, or that the Federal savings association is 
affiliated with a full-service Federal savings association, if the OCC 
concludes that the affiliation is intended to evade the assessment 
regulation.
    (3) * * *
    (ii) Affiliate, with respect to Federal savings associations, has 
the same meaning as in 12 U.S.C. 1462(9).
* * * * *
    (iv) Full-service Federal savings association is a Federal savings 
association that generates more than 50% of its interest and non-
interest income from activities other than credit card operations or 
trust activities and is authorized according to its charter to engage 
in all types of activities permissible for Federal savings 
associations.
* * * * *
    (vi) Independent trust Federal savings association is a Federal 
savings association that has trust powers, does not primarily offer 
full-service banking, and is not affiliated with a full-service Federal 
savings association;
    (vii) Fiduciary and related assets for national banks are those 
assets reported on Schedule RC-T of FFIEC Forms 031 and 041, Line 10 
(columns A and B) and Line 11 (column B), any successor form issued by 
the FFIEC, and any other fiduciary and related assets defined in the 
Notice of Comptroller of the Currency Fees; and
    (viii) Fiduciary and related assets for Federal savings 
associations are those assets reported on Schedule FS of OTS Form 1313, 
Line FS21, any successor form issued by the OTS, and any other 
fiduciary and related assets defined in the Notice of Comptroller of 
the Currency Fees.
    42. Effective December 31, 2011, add the word ``and'' at the end of 
paragraph (vi), revise paragraph (c)(3)(vii) to read as follows, and 
remove paragraph (c)(3)(viii).


Sec.  8.6  Fees for special examinations and investigations.

* * * * *
    (c) * * *
    (3) * * *
    (vii) Fiduciary and related assets are those assets reported on 
Schedule RC-T of FFIEC Forms 031 and 041, Line 10 (columns A and B) and 
Line 11 (column B), any successor form issued by the FFIEC, and any 
other fiduciary and related assets defined in the Notice of Comptroller 
of the Currency Fees.


Sec.  8.7  [Amended]

    43. Amend Sec.  8.7. paragraph (a), by removing ``and'' after 
``Federal branch''; adding ``, and each Federal savings association'' 
after ``each Federal agency''; and adding ``, each Federal savings 
association,'' after ``each national bank''.

PART 28--INTERNATIONAL BANKING ACTIVITIES

    44a. The authority citation for part 28 continues to read as 
follows:

    Authority: 12 U.S.C. 1 et seq., 24 (Seventh), 93a, 161, 602, 
1818, 3101 et seq., and 3901 et seq.


Sec.  28.16  [Amended]

    44b. Section 28.16 is amended by removing in paragraph (b) the term 
``$100,000'' and adding in its place ``the standard maximum deposit 
insurance amount as defined in 12 U.S.C. 1821(a)(1)(E)''.

PART 34--REAL ESTATE LENDING AND APPRAISALS

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

    Authority: 12 U.S.C. 1 et seq., 25b, 29, 93a, 371, 1465, 1701j-
3, 1828(o), 3331 et seq., and 5412(b)(2)(B).

Subpart A--General

    46. Amend Sec.  34.4 by:
    a. Revising paragraph (a) introductory text;
    b. Revising paragraph (b) introductory text; and
    c. Revising paragraph (b)(9).
    The revisions read as follows:


Sec.  34.4  Applicability of state law.

    (a) A national bank may make real estate loans under 12 U.S.C. 371 
and Sec.  34.3, without regard to state law limitations concerning:
* * * * *
    (b) State laws on the following subjects are not inconsistent with 
the real estate lending powers of national banks and apply to national 
banks to the extent consistent with the decision of the Supreme Court 
in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance 
Commissioner, et al., 517 U.S. 25 (1996):
* * * * *
    (9) Any other law that the OCC determines to be applicable to 
national banks in accordance with the decision of the Supreme Court in 
Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance 
Commissioner, et al., 517 U.S. 25 (1996), or that is made applicable by 
Federal law.
    47. Add Sec.  34.6 to subpart A to read as follows:


Sec.  34.6  Applicability of state law to Federal savings associations 
and subsidiaries.

    In accordance with section 1046 of the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (12 U.S.C. 25b), state laws apply to 
Federal savings associations and their subsidiaries to the same extent 
and in the same manner that those laws apply to national banks and 
their subsidiaries.

    Dated: May 19, 2011.
John Walsh,
Acting Comptroller of the Currency.
[FR Doc. 2011-12859 Filed 5-25-11; 8:45 am]
BILLING CODE 4810-33-P