[Federal Register Volume 85, Number 64 (Thursday, April 2, 2020)]
[Proposed Rules]
[Pages 18728-18782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04938]



[[Page 18727]]

Vol. 85

Thursday,

No. 64

April 2, 2020

Part IV





Department of the Treasury





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





Office of the Comptroller of the Currency





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





12 CFR Part 5





Licensing Amendments; Proposed Rule

  Federal Register / Vol. 85 , No. 64 / Thursday, April 2, 2020 / 
Proposed Rules  

[[Page 18728]]


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

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 5

[Docket ID OCC-2019-0024]
RIN 1557-AE71


Licensing Amendments

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 rules relating to policies and procedures for 
corporate activities and transactions involving national banks and 
Federal savings associations to update and clarify the policies and 
procedures, eliminate unnecessary requirements consistent with safety 
and soundness, and make other technical and conforming changes.

DATES: Comments must be received on or before May 4, 2020.

ADDRESSES: Commenters are encouraged to submit comments through the 
Federal eRulemaking Portal or email, if possible. Please use the title 
``Licensing Amendments'' to facilitate the organization and 
distribution of the comments. You may submit comments by any of the 
following methods:
     Federal eRulemaking Portal--Regulations.gov Classic or 
Regulations.gov Beta Regulations.gov Classic: Go to https://www.regulations.gov/. Enter ``Docket ID OCC-2019-0024'' in the Search 
Box and click ``Search.'' Click on ``Comment Now'' to submit public 
comments. For help with submitting effective comments please click on 
``View Commenter's Checklist.'' Click on the ``Help'' tab on the 
Regulations.gov home page to get information on using Regulations.gov, 
including instructions for submitting public comments.
    Regulations.gov Beta: Go to https://beta.regulations.gov/ or click 
``Visit New Regulations.gov Site'' from the Regulations.gov classic 
homepage. Enter ``Docket ID OCC-2019-0024'' in the Search Box and click 
``Search.'' Public comments can be submitted via the ``Comment'' box 
below the displayed document information or click on the document title 
and click the ``Comment'' box on the top-left side of the screen. For 
help with submitting effective comments please click on ``Commenter's 
Checklist.'' For assistance with the Regulations.gov Beta site please 
call (877)-378-5457 (toll free) or (703) 454-9859 Monday-Friday, 9am-
5pm ET or email to [email protected].
     Email: [email protected].
     Mail: Chief Counsel's Office, Attention: Comment 
Processing, Office of the Comptroller of the Currency, 400 7th Street 
SW, suite 3E-218, Washington, DC 20219.
     Hand Delivery/Courier: 400 7th Street SW, suite 3E-218, 
Washington, DC 20219.
     Fax: (571) 465-4326.
    Instructions: You must include ``OCC'' as the agency name and 
``Docket ID OCC-2019-0024'' in your comment. In general, the OCC will 
enter all comments received into the docket and publish the comments on 
the Regulations.gov website without change, including any business or 
personal information provided such as name and address information, 
email 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 include 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 rulemaking action by any of the following methods:
     Viewing Comments Electronically--Regulations.gov Classic 
or Regulations.gov Beta: Regulations.gov Classic: Go to https://www.regulations.gov/. Enter ``Docket ID OCC-2019-0024'' in the Search 
box and click ``Search.'' Click on ``Open Docket Folder'' on the right 
side of the screen. Comments and supporting materials can be viewed and 
filtered by clicking on ``View all documents and comments in this 
docket'' and then using the filtering tools on the left side of the 
screen. Click on the ``Help'' tab on the Regulations.gov home page to 
get information on using Regulations.gov. The docket may be viewed 
after the close of the comment period in the same manner as during the 
comment period.
    Regulations.gov Beta: Go to https://beta.regulations.gov/ or click 
``Visit New Regulations.gov Site'' from the Regulations.gov classic 
homepage. Enter ``Docket ID OCC-2019-0024'' in the Search Box and click 
``Search.'' Click on the ``Comments'' tab. Comments can be viewed and 
filtered by clicking on the ``Sort By'' drop-down on the right side of 
the screen or the ``Refine Results'' options on the left side of the 
screen. Supporting Materials can be viewed by clicking on the 
``Documents'' tab and filtered by clicking on the ``Sort By'' drop-down 
on the right side of the screen or the ``Refine Results'' options on 
the left side of the screen.'' For assistance with the Regulations.gov 
Beta site please call (877)-378-5457 (toll free) or (703) 454-9859 
Monday-Friday, 9am-5pm ET or email to 
[email protected].
    The docket may be viewed after the close of the comment period in 
the same manner as during the comment period.
     Viewing Comments Personally: You may personally inspect 
comments at the OCC, 400 7th Street SW, Washington, DC 20219. For 
security reasons, the OCC requires that visitors make an appointment to 
inspect comments. You may do so by calling (202) 649-6700 or, for 
persons who are deaf or hearing impaired, TTY, (202) 649-5597. Upon 
arrival, visitors will be required to present valid government-issued 
photo identification and submit to security screening in order to 
inspect comments.

FOR FURTHER INFORMATION CONTACT: For additional information, contact 
Christopher Crawford, Counsel, Valerie Song, Assistant Director, Rima 
Kundnani, Senior Attorney, or Heidi Thomas, Special Counsel, (202) 649-
5490, Chief Counsel's Office; or Karen Marcotte, Director for Licensing 
Activities, (202) 649-7297, Office of the Comptroller of the Currency, 
400 7th Street SW, Washington, DC 20219. For persons who are deaf or 
hearing impaired, TTY, (202) 649-5597.

SUPPLEMENTARY INFORMATION: 

I. Background

    The OCC periodically reviews its regulations to eliminate outdated 
or otherwise unnecessary provisions and to clarify or revise 
requirements imposed on national banks and Federal savings associations 
where possible and when not inconsistent with safety and soundness. 
These reviews are in addition to the OCC's decennial review of its 
regulations as required by the Economic Growth and Regulatory Paperwork 
Reduction Act (EGRPRA) \1\ As part of this process, the OCC is 
proposing to revise its rules in 12 CFR

[[Page 18729]]

part 5 relating to requirements for national banks and Federal savings 
associations that seek to engage in certain corporate transactions or 
activities.
---------------------------------------------------------------------------

    \1\ Public Law 104-208 (1996), codified at 12 U.S.C. 3311(b). 
Section 2222 of EGRPRA requires that, at least once every 10 years, 
the OCC along with the other Federal banking agencies and the 
Federal Financial Institutions Examination Council (FFIEC) conduct a 
review of their regulations to identify outdated or otherwise 
unnecessary regulatory requirements imposed on insured depository 
institutions. Specifically, EGRPRA requires the agencies to 
categorize and publish their regulations for comment, eliminate 
unnecessary regulations to the extent that such action is 
appropriate, and submit a report to Congress summarizing their 
review. The agencies completed their second EGRPRA review on March 
30, 2017 and published their report in the Federal Register. 82 FR 
15900 (March 30, 2017).
---------------------------------------------------------------------------

    Part 5 addresses the range of an institution's existence from 
chartering to dissolution and includes, among other things, business 
combinations, branching matters, operating subsidiaries, and dividend 
payments. In some cases, a bank is required to apply to engage in a 
certain transaction or activity while in other situations a bank must 
submit a notice to the OCC either for informational purposes or as a 
means for providing the OCC with the opportunity to object to the 
transaction or activity.

II. Description of the Proposed Rule

Rules of General Applicability (Part 5, Subpart A)

    Twelve CFR part 5, subpart A, sets forth the OCC's generally 
applicable rules and procedures for corporate activities and 
transactions of national banks and Federal savings associations. The 
OCC proposes substantive and technical changes to subpart A as 
explained below.
    Rules of General Applicability (Sec.  5.2) Section 5.2(a) states 
that the procedures in subpart A apply to all part 5 filings, unless 
otherwise stated. Section 5.2(b) provides that the OCC may adopt 
materially different procedures for a particular filing or class of 
filings in exceptional circumstances or for unusual transactions after 
providing notice to the applicant and any other party that the OCC 
determines should receive notice. The OCC is proposing to increase its 
flexibility to address unusual situations by adding language to clarify 
that it may adopt materially different procedures as it deems 
necessary, for example, in exceptional circumstances or for unusual 
transactions. As discussed below, the OCC also is proposing to change 
the term ``applicant'' to ``filer'' in this section.
    Definitions (Sec.  5.3) Section 5.3 defines terms that are used 
throughout part 5. The OCC is proposing several new definitions to this 
section. First, the OCC is proposing definitions for ``nonconforming 
assets'' and ``nonconforming activities.'' The OCC uses, but does not 
define, these terms in Sec. Sec.  5.23 and 5.24 (conversions to a 
Federal savings association or national bank, respectively) and Sec.  
5.33 (business combinations). The OCC proposes these definitions to 
mean assets or activities that are impermissible for a national bank or 
a Federal savings association to hold or conduct, as applicable, or if 
permissible, are nonetheless held or conducted in a manner that exceeds 
limits applicable to national banks or Federal savings associations. 
Under this proposed definition, the term ``assets'' would include a 
national bank's or Federal savings association's investments in 
subsidiaries or other entities.
    Second, the OCC proposes to define the term ``previously approved 
activity'' to mean, in the case of a national bank, an activity 
approved in published OCC precedent for a national bank, an operating 
subsidiary of a national bank, or a non-controlling investment of a 
national bank; and in the case of a Federal savings association, an 
activity approved in published OCC or OTS precedent for a Federal 
savings association, an operating subsidiary of a Federal savings 
association, or a pass-through investment of a Federal savings 
association. The OCC is proposing this definition to provide more 
clarity given the repeated use of this standard in Sec. Sec.  5.34, 
5.36, 5.38, and 5.58.\2\
---------------------------------------------------------------------------

    \2\ For references to previously approved activities, national 
banks and Federal savings associations may consult the OCC's 
publications Comparison of the Powers of National Banks and Federal 
Savings Associations, available at https://www.occ.gov/publications-and-resources/publications/banker-education/files/pub-comparison-powers-national-banks-fed-sav-assoc.pdf, and Activities Permissible 
for National Banks and Federal Savings Associations, Cumulative, 
available at https://www.occ.gov/publications-and-resources/publications/banker-education/files/pub-activities-permissible-for-nat-banks-fed-saving.pdf.
---------------------------------------------------------------------------

    Third, the OCC proposes to define ``well capitalized'' in Sec.  
5.3. The OCC uses the term ``well capitalized'' throughout part 5 
differently. For example, for national banks and Federal savings 
associations various sections of part 5 apply the definition of well 
capitalized that is used in 12 CFR 6.4. For Federal branches and 
agencies, Sec. Sec.  5.34, 5.35, and 5.36 apply the standard in 12 CFR 
4.7(b)(1)(iii) to qualify for an 18-month examination cycle. Finally, 
for an insured depository institution that is not a national bank or 
Federal savings association, Sec.  5.39 applies the applicable standard 
promulgated by the appropriate Federal banking agency under 12 U.S.C. 
1831o. The OCC proposes to remove this inconsistency by adding a 
definition of ``well capitalized'' to Sec.  5.3 that would apply to all 
of part 5 and removing the duplicative definitions included in the 
various sections. Where appropriate, provisions in part 5 would cross-
reference to this new definition.
    Fourth, the OCC proposes to add the term ``well managed'' to Sec.  
5.3. Currently, part 5 contains two different definitions of ``well 
managed.'' Consistent with section 5136A of the Revised Statutes (12 
U.S.C. 24a), Sec.  5.39 generally defines ``well managed'' for purposes 
of financial subsidiaries as a 1 or 2 composite rating under the 
Uniform Financial Institutions Rating System and at least a rating of 2 
for management. By contrast, Sec. Sec.  5.34 and 5.38, governing 
national bank and Federal savings association operating subsidiaries, 
respectively, generally define ``well managed'' as a 1 or 2 composite 
rating without reference to the management rating. Sections 5.35 (bank 
service company investments), 5.36 (other equity investments by a 
national bank), and 5.58 (Federal savings association pass-through 
investments) cross-reference to the Sec. Sec.  5.34 or 5.38 definition. 
Additionally, Sec.  5.59(h)(2)(ii)(A) requires a Federal savings 
association to be well managed to be eligible for expedited review.
    The OCC is proposing a single definition of ``well managed'' 
applicable throughout part 5 to eliminate confusion between the two 
definitions and to further the OCC's supervisory objectives.\3\ The 
financial subsidiary statute, 12 U.S.C. 24a, defines ``well managed'' 
to include the management rating, and the OCC proposes to use this 
definition. The proposal uses an equivalent definition for Federal 
branches and agencies of foreign banks which is a composite ROCA 
supervisory rating (which rates risk management, operational controls, 
compliance and assets quality) of 1 or 2, and at least a rating of 2 
for risk management. Further, the OCC believes that a national bank, 
Federal savings association, or Federal branch or agency with a 2 
composite rating but a 3 management, or risk management, rating 
warrants additional scrutiny. The OCC believes that these changes will 
enhance bank safety and soundness and provide a clearer and more 
consistent standard for national banks.
---------------------------------------------------------------------------

    \3\ There is one instance of the term ``well managed'' in part 5 
that does not follow this definition. Specifically, 12 CFR 
5.59(e)(7)(i) requires that each Federal savings association ``be 
well managed and operate safely and soundly.'' This provision is not 
directly applicable to any filing procedures but is rather a general 
statement of appropriate management and safety and soundness 
standards. For example, pursuant to Sec.  5.59(e)(7)(ii) the OCC may 
limit a Federal savings association's investment in a service 
corporation, or limit or refuse to permit any activity of a service 
corporation, for supervisory, legal, or safety or soundness reasons.
---------------------------------------------------------------------------

    The OCC also is considering amending the definition of ``short-
distance relocation.'' Currently, moving the premises of a branch or 
main office of a national bank or a branch or home

[[Page 18730]]

office of a Federal savings association is a short-distance relocation 
if the move is within: (1) A one-thousand foot-radius of the site if 
the branch, main office, or home office is located within a principal 
city of a metropolitan statistical area (MSA); (2) a one-mile radius of 
the site if the branch, main office, or home office is not located 
within a principal city but is located within an MSA; or (3) a two-mile 
radius of the site if the branch, main office, or home office is not 
located within an MSA. Under the branch relocation provisions in Sec.  
5.30 (national banks) and Sec.  5.31 (Federal savings associations) and 
the main office and home office relocation provisions in Sec.  5.40, 
short-distance relocations have a shorter public comment and OCC 
approval period than other relocations. Additionally, the OCC generally 
equates the short-distance relocation provision to be equivalent to a 
``relocation'' for the purposes of branch closing under section 42 of 
the Federal Deposit Insurance Act (FDI Act) (12 U.S.C. 1831r-1).
    The OCC has never adjusted the distances in the definition of 
short-distance relocation, and the distances do not necessarily reflect 
the individual circumstances of each bank location. Because of the 
changes in branching activities, locations, and usage since 1996, such 
as the increased use of electronic banking, the OCC is considering 
expanding the distances for short-distance relocations to allow 
national banks and Federal savings associations greater flexibility in 
their office locations and to reduce regulatory burden for these types 
of relocations. Specifically, the OCC is considering expanding the 
distances in the definition to: (1) A two-thousand foot radius within a 
principal city of an MSA; (2) a two-mile radius not within a principal 
city but within an MSA; and (3) a four-mile radius not within an MSA. 
However, any amendment to this definition would provide that this 
increase in distance would not apply to a branch that would be 
relocated from a low- or moderate-income area to a non-low- or 
moderate-income area. For such relocations, the current definition of a 
short-distance relocation would continue to apply. The OCC invites 
comment on whether the OCC should amend Sec.  5.3 to adjust the 
distances included in the definition of short-distance relocation and 
if so whether the increase suggested above would be appropriate or 
whether an alternate increase in distance would better reduce 
regulatory burden on national banks and Federal savings associations 
while providing appropriate notice to customers.
    Finally, the OCC is proposing technical changes to Sec.  5.3. 
First, current Sec.  5.3 defines ``applicant'' as a ``person or entity 
that submits a notice or application to the OCC under'' part 5. 
However, this usage of the term ``applicant' is confusing because it 
covers persons who submit an application or a notice. Accordingly, the 
OCC proposes to change the term ``applicant'' to ``filer'' to more 
clearly cover both a person who files an application or a notice. The 
proposal would make conforming changes throughout part 5.
    Second, the proposal would add a new definition for ``Appropriate 
Federal banking agency'' that cross-references the definition contained 
in section 3(q) of the FDI Act, 12 U.S.C. 1813(q).
    Third, the proposal would add a new definition clarifying that 
``MSA'' means metropolitan statistical area as defined by the Director 
of the Office of Management and Budget (OMB).\4\
---------------------------------------------------------------------------

    \4\ According to the OMB,''[t]he general concept of a 
metropolitan statistical area is that of an area containing a large 
population nucleus and adjacent communities that have a high degree 
of integration with that nucleus.'' 75 FR 37246 (June 28, 2010). 
These standards are then applied to census data to delineate the 
metropolitan statistical areas.
---------------------------------------------------------------------------

    Fourth, part 5 currently defines ``notice'' to mean a submission 
notifying the OCC that a national bank or Federal savings association 
intends to engage in or has commenced certain activities or 
transactions. The definition notes that the specific meaning depends on 
context and ``may require the filer to obtain prior OCC approval before 
engaging in the activity or transaction.'' As described later in this 
Supplementary Information, the OCC is proposing to change the term 
``notice'' to ``application'' for activities or transactions that 
require prior OCC approval. Therefore, the OCC proposes to remove the 
quoted language from the definition.
    Fifth, the OCC proposes adding abbreviations for the former OTS, 
the Federal Deposit Insurance Corporation (FDIC), and generally 
accepted accounting principles as used in the United States (GAAP) to 
make their use consistent throughout part 5.
    Finally, to reflect the more current regulatory drafting style, the 
OCC proposes to remove the paragraph designations in Sec.  5.3 and to 
make conforming changes to cross-references throughout 12 CFR part 5.
    Filing required (Sec.  5.4) Section 5.4 requires depository 
institutions to file applications or notices with the OCC to engage in 
certain corporate activities and transactions and provides general 
information on this filing requirement. Section 5.4(f) currently 
encourages a potential filer to contact the appropriate OCC licensing 
office to determine the need for a prefiling meeting, and it 
specifically provides that the OCC decides whether to require a 
prefiling meeting on a case-by-case basis. The OCC is proposing to 
provide more general guidance on when a filer should seek a prefiling 
meeting with the OCC. Specifically, the OCC proposes to include a new 
sentence advising potential filers with novel, complex, or unique 
proposals to contact the appropriate OCC licensing office early in the 
development of the proposal to help identify and consider relevant 
policy issues.
    Additionally, the OCC proposes to move the certification 
requirement in current Sec.  5.13(h) to new Sec.  5.4(g). Current Sec.  
5.13(h) requires filers to certify that material submitted to the OCC 
contains no material misrepresentations or omissions. The OCC also may 
review and verify any information filed in connection with a notice or 
an application. Section 5.13(h) further provides that material 
misrepresentations or omissions may be subject to enforcement actions 
and other penalties, including criminal penalties under 18 U.S.C. 1001. 
As discussed below, the OCC is proposing to revise Sec.  5.13(h) to 
clarify the procedures regarding nullification of decisions. The 
certification requirement in Sec.  5.13(h) does not fit well in the 
revised provision so the OCC is proposing to move it to Sec.  5.4 with 
other provisions relating to the form of the filing.
    Filing fees (Sec.  5.5) Section 5.5(a) provides the procedure for 
submitting filing fees to the OCC. The current rule requires payment to 
the OCC by check, money order, cashier's check, or wire transfer. The 
OCC is proposing to update this provision by providing that a filer can 
pay the fees by check payable to the OCC or by other means acceptable 
to the OCC. The OCC does not currently charge filing fees for licensing 
filings and is not proposing any fees as part of this rulemaking.
    Investigations (Sec.  5.7) Section 5.7 provides the OCC with 
examination and investigation authority related to a filing. As 
discussed in the OCC's Licensing Manual, the OCC routinely engages in 
background investigations of filers and other individuals involved in 
filings for new charters, changes in bank control, and changes in 
directors and senior executive officers. As part of these background 
investigations, the OCC collects fingerprints and submits them to the 
Federal Bureau of

[[Page 18731]]

Investigation for a national criminal history background check. The OCC 
is proposing to add a new paragraph (b) to Sec.  5.7 to codify this 
procedure. The OCC also is proposing conforming changes to other 
sections in part 5 to clarify when it collects fingerprints.
    Public availability, Comments, and Hearings and other meetings 
(Sec. Sec.  5.9, 5.10, 5.11) Section 5.9 addresses the public 
availability and confidential treatment of filings. Section 5.10 
provides the process for public comment periods and the submission of 
public comments. Section 5.11 provides the process for hearings and 
public and private meetings. The OCC is proposing to change the terms 
``application'' to ``filing'' and ``applicant'' to ``filer'' in these 
sections to reflect the more general terminology proposed in this rule. 
Furthermore, each of these sections currently uses the term 
``interested persons'' to refer to persons other than the filer who 
seek to interact with a filing or related procedure. The OCC 
understands the term ``interested persons'' to mean any person who is 
or may wish to be involved in the licensing process. Such a person may, 
but need not, have any particular financial, pecuniary, or other 
interest in the transaction itself, the filer, or other party to the 
transaction. The OCC invites comment about whether the term 
``interested persons'' is sufficiently clear, or whether a change in 
terminology would be helpful to indicate the breadth of this provision.
    Decisions (Sec.  5.13) Section 5.13 contains the OCC's procedures 
for acting on a filing. Paragraph (a)(2) of this section provides the 
procedures for the OCC's expedited review, including extending the time 
frame for reviewing or removing a filing from expedited review. The OCC 
may change the expedited review procedures if it concludes that the 
filing, or an adverse comment regarding the filing, presents a 
significant supervisory, Community Reinvestment Act (CRA) (if 
applicable), or compliance concern or raises a significant legal or 
policy issue requiring additional OCC review. However, paragraph 
(a)(2)(ii) provides that the OCC will not change the expedited 
procedures if it determines, among other things, that an adverse 
comment does not raise a significant supervisory, CRA (if applicable), 
or compliance concern or a significant legal or policy issue, or is 
frivolous or filed primarily as a means of delaying action on the 
filing. The OCC proposes to add non-substantive comments to this list 
to better align the regulation with OCC policy and processes. The OCC 
also proposes to specify that it considers a comment to be ``non-
substantive'' if it is: (1) A generalized opinion that a filing should 
or should not be approved; or (2) a conclusory statement, lacking 
factual or analytical support. The OCC intends to apply this non-
substantive standard to all comments that it reviews. This change would 
provide a clear standard for commenters submitting views on a filing.
    Section 5.13(a)(2)(ii) also provides that the OCC will not change 
the expedited procedures if the adverse comment raises a CRA concern 
that the OCC determines has been satisfactorily resolved. The rule 
states that the OCC considers a CRA concern to be satisfactorily 
resolved if the OCC previously reviewed (e.g., in an examination or 
application) a concern presenting substantially the same issue in 
substantially the same assessment area during substantially the same 
time, and the OCC determines that the concern would not warrant denial 
or imposition of a condition on approval of the application. The OCC 
proposes to amend this provision to expand what is meant by 
``previously reviewed'' to include other supervisory activity and to 
provide that the OCC's review may occur in a prior filing.
    The OCC also proposes to amend the introductory text to paragraph 
(a)(2) to reflect that some expedited review procedures in part 5 do 
not require the national bank or Federal savings association to be an 
eligible bank or eligible savings association, as defined in Sec.  5.3. 
The proposed rule also would clarify paragraphs (a)(2)(i) and (ii) by 
revising the punctuation and sentence structure so that it is easier to 
read.
    Paragraph (h) of Sec.  5.13 provides that the OCC may nullify a 
decision on a filing if: (1) The OCC discovers a material 
misrepresentation or omission after the OCC has rendered a decision on 
the filing; (2) the decision is contrary to law, regulation, or OCC 
policy; or (3) the OCC granted the decision due to clerical or 
administrative error or a material mistake of law or fact. The OCC's 
decisions on filings generally contain a statement that the ``OCC may 
modify, suspend or rescind this approval if a material change in the 
information on which the OCC relied occurs prior to the date of the 
transaction to which the decision pertains.''
    The OCC proposes to revise paragraph (h) to clarify when the OCC 
may nullify a decision. The revised provision would state that the OCC 
may nullify a decision on a filing either prior to or after 
consummation of the transaction. The proposed rule also would clarify 
that the OCC may nullify a decision based on a material 
misrepresentation or omission in any information provided to the OCC in 
the filing or supporting materials. The OCC is also proposing a new 
paragraph (i) that would provide that the OCC may modify, suspend, or 
rescind a decision on a filing if a material change in the information 
or circumstance on which the OCC relied occurs prior to the date of the 
consummation of the transaction to which the decision pertains.
    These revisions are intended to clarify that nullification is based 
on the facts, law, and policy as they existed at the time of the OCC's 
decision. By contrast, modification, suspension, or rescission is based 
on a change in facts or circumstance from the time of the OCC's 
decision until consummation of the transaction to which the decision 
pertains. The OCC welcomes comment on how it could further clarify 
these procedures.
    As indicated previously in this Supplementary Information, the 
proposed rule would move the provisions in current Sec.  5.13(h) 
regarding certification of the submitted filing and penalties for 
material misrepresentation and omissions in a filing to new paragraph 
Sec.  5.4(g).

Organizing a National Bank or Federal Savings Association (Sec.  5.20)

    Section 5.20 provides the procedures and requirements involved in 
organizing a de novo national bank or Federal savings association. The 
OCC is proposing two new definitions to Sec.  5.20(d). First, the OCC 
would define ``principal shareholder'' as a person who directly or 
indirectly or acting in concert with one or more persons or companies, 
or together with members of their immediate family, will own, control, 
or hold 10 percent or more of the stock of the proposed national bank 
or Federal savings association. This definition is consistent with the 
definition used in the ``Background Investigations'' booklet of the 
Comptroller's Licensing Manual and the instructions for the Interagency 
Biographical and Financial Report.\5\ The OCC is proposing this 
definition in conjunction with provisions related to background checks 
and fingerprint collections in proposed Sec.  5.20(i)(3), discussed 
below.
---------------------------------------------------------------------------

    \5\ The Interagency Biographical and Financial Report is 
available on the OCC's website at https://www.occ.gov/static/licensing/form-ia-biographical-financial-report.pdf.
---------------------------------------------------------------------------

    Second, the OCC proposes to clarify that the term ``organizer'' 
means a member of the organizing group. This definition is not clearly 
stated in Sec.  5.20.

[[Page 18732]]

    Paragraph (i) contains procedures for filing a charter application. 
The OCC proposes a new paragraph (i)(3) requiring each proposed 
organizer, director, executive officer, or principal shareholder to 
submit to the OCC the information prescribed in the Interagency 
Biographical and Financial Report and legible fingerprints. New 
paragraph (i)(3) also would permit the OCC to request additional 
information, if appropriate, and waive the requirements of that 
paragraph if the OCC determines it to be in the public interest. As 
discussed in the ``Charters'' booklet of the Comptroller Licensing 
Manual, the OCC generally conducts routine background checks on 
insiders, including proposed organizers, directors, executive officers, 
and controlling shareholders. The OCC revision, consistent with the 
background investigation changes in proposed Sec.  5.7(b), would codify 
this process and authorize the collection of fingerprints for charter 
applications.
    The OCC also is proposing a number of technical changes to Sec.  
5.20. First, in the definition of ``organizing group'' the OCC proposes 
to change the term ``persons'' to ``individuals'' to more accurately 
reflect who may make up an organizing group. Second, in Sec.  
5.20(g)(4)(ii), the OCC proposes to change the phrase ``withdrawal of 
preliminary approval'' to ``nullification or rescission of preliminary 
approval'' to align with the terminology in proposed Sec. Sec.  5.13(h) 
and (i). Third, in Sec.  5.20(i), Decision notification, the OCC 
proposes to change the term ``spokesperson'' to ``contact person'' in 
redesignated paragraph (i)(5) to conform to the use of this term in 
other paragraphs of this section. Fourth, also in Sec.  5.20(i), 
redesignated paragraph (i)(5), the OCC proposes to change the term 
``interested parties'' to ``relevant parties,'' which more accurately 
describes who the OCC should notify of its decision on an application. 
Lastly, the OCC proposes to remove the reference to 12 CFR part 197 in 
Sec.  5.20(i), redesignated paragraph (i)(6)(iii), because the OCC has 
removed this regulation. The remaining citation, 12 CFR part 16, now 
applies to both national banks and Federal savings associations.

Federal Mutual Savings Association Charter and Bylaws (Sec.  5.21)

    Section 5.21 governs the procedures and requirements for charters 
and bylaws of Federal mutual savings associations. Pursuant to 
paragraph (f)(2), charter amendments are generally subject to prior 
approval by the OCC, although under paragraph (g), most applications 
for charter amendments are subject to expedited review and deemed 
approved as of the 30th day after filing unless the OCC notifies the 
filer that it has denied the amendment, or the amendment is not 
eligible for expedited review. An application is not eligible for 
expedited review if the charter amendment would render more difficult 
or discourage a merger, proxy contest, the assumption of control by a 
mutual account holder of the association, or the removal of incumbent 
management or involves a significant issue of law or policy. Paragraph 
(g) further provides that a notice is required within 30 days after 
adoption if the filer adopts the optional charter amendments contained 
in paragraph (g) without change.
    The OCC is proposing to reorganize these provisions to clarify the 
procedures Federal mutual savings associations must follow in adopting 
charter amendments, to align the terminology in Sec.  5.21 with general 
usage in part 5, and to make other clarifying changes. The OCC does not 
intend these changes to be substantive. Specifically, the OCC proposes 
including all of this section's procedural requirements for adopting 
charter amendments in paragraph (f)(2). These amendments would clarify 
that charter amendments are subject to a three-part regime: Application 
with expedited review, standard application, or notice. Paragraph (g) 
would only contain provisions relating to optional charter amendments. 
Additionally, the OCC proposes to add a new paragraph (f)(3) specifying 
that a charter amendment is effective once it is: (1) Approved by the 
OCC, if approval is required under paragraph (f)(2); and (2) adopted by 
the association provided the association follows the requirements of 
its charter in adopting the amendment.
    Paragraph (j) governs the bylaws for Federal mutual savings 
associations. Paragraph (j)(2)(viii) requires the bylaws to specify 
that the Federal mutual association's board of directors consist of no 
fewer than five nor more than fifteen members unless the OCC has 
authorized a higher or lower number. However, unlike the corresponding 
provision for Federal stock savings associations, 12 CFR 5.22(l)(2), 
paragraph (j)(2)(viii) does not explicitly address numbers of directors 
authorized by the former OTS. Accordingly, the OCC proposes to revise 
this paragraph to explicitly acknowledge that authorizations by the 
former OTS remain effective.
    Paragraph (j)(3) contains the filing requirements for changes to 
Federal mutual savings association bylaws. Currently, all bylaw 
amendments require some sort of filing with the OCC. As with the 
charter amendments discussed above, the OCC is proposing to reorganize 
these provisions to clarify the procedures Federal mutual savings 
associations must follow in adopting bylaw amendments and to align the 
terminology with that used in part 5. The OCC also proposes to 
eliminate the filing requirement for savings associations that adopt 
without change the OCC's model or optional bylaws, thereby reducing 
burden for these Federal mutual savings associations. As a result, 
these amendments would specify that bylaw amendments are subject to a 
four-part regime: Application with expedited review, standard 
application, notice, and no filing required. As with the charter 
amendments, the OCC also proposes that a bylaw amendment is effective 
after approval by the OCC, if required, and adoption by the 
association, provided that the association follows the requirements of 
its charter and bylaws in adopting the amendment.
    As discussed later in this Supplementary Information, the OCC is 
proposing technical changes throughout part 5, including replacing the 
word ``shall'' with another appropriate word or words. These changes, 
as well as other minor proposed wording changes, are included in the 
model charter and bylaw provisions provided in Sec.  5.21. The OCC does 
not intend these proposed changes to require any changes on the part of 
Federal mutual savings associations that use the current model 
language. Further, the OCC does not intend that the changes would have 
any effect on the provisions or effectiveness of a Federal mutual 
savings association's current charter or bylaws.

Federal Stock Savings Association Charter and Bylaws (Sec.  5.22)

    Section 5.22 governs the procedures and requirements for Federal 
stock savings association charters and bylaws. Section 5.22 generally 
parallels Sec.  5.21, which applies to Federal mutual savings 
association charters and bylaws. The OCC proposes equivalent changes to 
Sec.  5.22 as proposed for Sec.  5.21. The OCC also proposes two 
additional technical amendments to Sec.  5.22. Section 5.22 contains 
sample charter and bylaw provisions, and paragraph (g)(7) provides an 
optional ``Section 8'' for Federal stock savings association charters 
following mutual to stock conversions. This optional section contains a 
definition of ``acting in concert.'' The OCC proposes minor wording 
changes to this definition for consistency with the definition of this

[[Page 18733]]

term in Sec.  5.50(d)(2), changes in bank control. The OCC also 
proposes correcting a cross-reference to 12 CFR part 192 in paragraph 
(e).

Conversion To Become a Federal Savings Association (Sec.  5.23) and 
Conversion To Become a National Bank (Sec.  5.24)

    Sections 5.23 and 5.24 are largely parallel rules that provide the 
procedures and standards for OCC review and approval of an application 
by an institution to convert to a Federal savings association or 
national bank, respectively. Sections 5.23(d)(2)(ii)(A) and 
5.24(e)(2)(i) each require the president or other duly authorized 
officer to sign the conversion application. These sections are the only 
provisions in part 5 that have specific signature requirements for the 
filing. As discussed above, the OCC is proposing a new provision in 
Sec.  5.4 requiring that a filing include evidence of authorization for 
the filing, such as a board resolution. Accordingly, the OCC proposes 
to remove Sec. Sec.  5.23(d)(2)(ii)(A) and 5.24(e)(2)(i) as 
unnecessary.
    The ``Conversions to Federal Charter'' booklet of the Comptroller's 
Licensing Manual indicates that filers should include a list of 
directors and senior executive officers of the converting institution 
as well as a list of individuals, directors, and shareholders who 
directly or indirectly, or acting in concert with one or more persons 
or companies, or together with members of their immediate family, do or 
will own, control, or hold 10 percent or more of the converting 
institution's stock. The OCC proposes to codify these requirements in 
Sec. Sec.  5.23(d)(2)(ii) and 5.24(e)(2). It is necessary to have a 
complete list of these individuals because the OCC generally conducts 
routine background investigations as part of the application process. 
Furthermore, the OCC proposes to add a new paragraph to each of these 
rules, Sec. Sec.  5.23(d)(2)(iv) and 5.24(e)(4), providing that the OCC 
may require directors and senior executive officers of the converting 
institution to submit the Interagency Biographical and Financial Report 
and legible fingerprints. This amendment would codify the background 
investigation process set forth in the ``Conversions to Federal 
Charter'' booklet of the Comptroller's Licensing Manual and 
specifically authorize the collection of fingerprints for conversion 
applications, consistent with the background investigation changes 
proposed to other sections in this rulemaking.
    Additionally, Sec. Sec.  5.23(d)(4) and 5.24(h) provide for 
expedited review for conversion from an eligible national bank to a 
Federal savings association, and vice versa. Currently, this conversion 
application is deemed approved as of the 60th day after the filing is 
received by the OCC. The OCC believes that it can review and decide 
these conversion applications in a shorter period because it already 
supervises an entity eligible to use the expedited review process. 
Accordingly, the OCC proposes decreasing the time period for the 
expedited review to 45 days. The OCC also proposes a technical change 
to Sec.  5.23(d)(4) to remove the modifier ``national'' before bank as 
the defined term in Sec.  5.3 is ``eligible bank.'' This deletion would 
not change the scope of institutions eligible for expedited review as 
only a national bank, and not a State bank, may be an eligible bank 
under the definition in Sec.  5.3.

Fiduciary Powers of National Banks and Federal Savings Associations 
(Sec.  5.26)

    Section 5.26 contains the application requirements and processes 
for a national bank or Federal savings association to engage in the 
exercise of fiduciary powers. Paragraph (e)(2)(i)(C) requires a 
national bank or Federal savings association to submit sufficient 
biographical information on proposed trust management personnel as part 
of an application for fiduciary powers. The scope of the term ``trust 
management personnel'' is unclear, and therefore the OCC is proposing 
to clarify that the biographical information is required for proposed 
senior trust management personnel, as identified by the OCC. The OCC 
also is proposing that the application include, if requested by the 
OCC, the Interagency Biographical and Financial Report and legible 
fingerprints for these individuals, consistent with the background 
investigation changes proposed to other sections in this rulemaking.
    Section 5.26(e)(6) requires a national bank or Federal savings 
association to submit a written notice to the OCC no later than 10 days 
after it begins previously approved fiduciary activities in additional 
States. The OCC proposes to reorganize this paragraph with no 
additional substantive changes. As proposed, paragraph (e)(6)(i) would 
generally require a written notice after the national bank or Federal 
savings association begins any of the activities specified in 12 CFR 
9.7(d) in a new State. Paragraph (e)(6)(ii) would require the notice to 
include the new States, the fiduciary activities to be conducted, and 
the extent to which the activities differ materially from the fiduciary 
activities currently conducted. Finally, paragraph (e)(6)(iii) would 
not require any notice if the information required by paragraph 
(e)(6)(ii) is provided by other means, such as in a merger application.

Establishment, Acquisition, and Relocation of a Branch of a National 
Bank (Sec.  5.30)

    Section 5.30 describes application procedures to establish and 
relocate a national bank branch. Paragraph (d) provides definitions 
applicable to Sec.  5.30. Paragraph (d)(1)(i) lists certain types of 
facilities that are considered branches. The OCC proposes to reorder 
this list so that the reference to 12 U.S.C. 36(c) applies only to 
seasonal agencies and not to the other types of facilities. 
Additionally, paragraph (d)(1)(iii) specifies that remote service units 
(RSUs) and certain types of offices are not within the definition of 
``branch.'' The OCC proposes to clarify this provision by adding both a 
cross reference to the description of RSUs contained in 12 CFR 7.4003 
and a reference to automated teller machines (ATMs), including 
interactive ATMs, codifying OCC Interpretive Letter No. 1165 (August 
2019).\6\ As discussed in OCC Interpretive Letter No. 1165, a national 
bank establishment of an interactive ATM does not constitute 
establishing a branch if the machine meets the definition of an ATM 
used for purposes of 12 U.S.C. 36 consistent with OCC interpretations, 
and the nature of the interactions between the customer and remote bank 
personnel are delimited as would be the case with an RSU.
---------------------------------------------------------------------------

    \6\ OCC Interpretive Letter No. 1165, Legal Requirements for the 
Establishment of Interactive Automated Teller Machines (August 
2019), available at https://www.occ.gov/topics/charters-and-licensing/interpretations-and-actions/2019/int1165.pdf.
---------------------------------------------------------------------------

    The OCC is considering one additional change to the definition of 
``branch'' in paragraph (d). Paragraph (d)(1)(ii)(B) specifies that a 
drive-in or pedestrian facility located within 500 feet of a public 
entrance to a main office or branch is not considered a separate 
branch, provided the functions performed at the drive-in or pedestrian 
facility are limited to functions that are ordinarily performed at a 
teller window. The OCC is considering expanding this distance to 1,500 
feet to address issues in crowded urban areas. The OCC specifically 
requests comment on whether this increase in distance, or some other 
distance, would be appropriate and whether it would be helpful in 
reducing regulatory burden.
    Finally, the OCC proposes a technical change to paragraph (f), 
which provides the procedures for establishing a

[[Page 18734]]

national bank branch. Paragraph (f)(1) requires each national bank that 
proposes to establish a branch to submit an application to the OCC, 
except in the case of messenger services as specified in paragraph 
(f)(2). However, paragraph (f)(3) provides that if a national bank 
proposes to establish a branch jointly with one or more national banks 
or other depository institutions, only one of the national banks must 
submit a branch application and this bank may act as agent for the 
other institutions. Even if a single application is submitted for a 
joint branch, the OCC still considers the relevant factors for each 
national bank. The OCC proposes including paragraph (f)(3) as an 
additional exception to the application requirement in paragraph 
(f)(1), thereby conforming these two paragraphs.

Establishment, Acquisition, and Relocation of a Branch and 
Establishment of an Agency Office of a Federal Savings Association 
(Sec.  5.31)

    Section 5.31 describes application and notice procedures for the 
establishment, acquisition, or relocation of a Federal savings 
association branch. Under paragraph (f)(2)(i), a Federal savings 
association is not required to submit an application for OCC approval 
to establish a drive-in or pedestrian office located within 500 feet of 
a public entrance of its home office or a branch. As with national 
banks, the OCC is considering expanding this distance to 1,500 feet to 
address issues in crowded urban areas. The OCC specifically requests 
comment on whether this increase in distance, or some other distance, 
would be appropriate and whether it would be helpful in reducing 
regulatory burden.
    Paragraph (j), implementing section 5(m) of the Home Owners' Loan 
Act (HOLA) (12 U.S.C. 1464(m)), requires a Federal or State savings 
association to obtain prior OCC approval to establish or move a branch 
or move its principal office in the District of Columbia. The OCC 
proposes to add a new paragraph (j)(3) to clarify that a branch in the 
District of Columbia includes any location at which accounts are 
opened, payments are received, or withdrawals made, including ATMs that 
perform one or more of these functions. This amendment would implement 
court opinions finding that ATMs that accept deposits or disburse funds 
against a customer's account constitute a branch.\7\ Although Congress 
amended 12 U.S.C. 36(j) to remove ATMs and RSUs from the definition of 
a national bank ``branch,'' Congress has not similarly amended section 
5(m) of the HOLA. Therefore, the OCC and OTS have long taken the 
position that an ATM established by a savings association in the 
District of Columbia constitutes a branch requiring approval. Because 
proposed paragraph (j)(3) codifies the OCC's existing legal 
interpretation, the OCC does not view this proposed amendment as adding 
burden to savings associations.
---------------------------------------------------------------------------

    \7\ See Independent Bankers Ass'n of New York State, Inc. v. 
Marine Midland Bank, N.A., 757 F.2d 453, 458 (2d Cir. 1985) 
(collecting cases).
---------------------------------------------------------------------------

Business Combinations Involving a National Bank or Federal Savings 
Association (Sec.  5.33)

    Section 5.33 provides the application requirements and procedures 
for business combinations involving national banks and Federal savings 
associations, such as mergers, consolidations, and certain purchase and 
assumption transactions. Paragraph (e) of Sec.  5.33 sets forth 
policies the OCC considers when evaluating business combinations. 
Paragraph (e)(1)(ii)(F) provides that the OCC will not approve a 
transaction that would violate the deposit concentration limit in 12 
U.S.C. 1828(c)(13). Only interstate merger transactions, as defined 12 
U.S.C. 1828(c)(13)(C)(i) are subject to this deposit concentration 
limit. The OCC proposes adding a reference to 12 U.S.C. 
1828(c)(13)(C)(i) in paragraph (e)(1)(ii)(F) for clarity.
    Paragraph (e)(1)(iii) provides the OCC's policy for evaluating 
business combinations under the CRA (12 U.S.C. 2901 et seq.). Under 12 
U.S.C. 2903(a)(2), the OCC must evaluate an insured national bank's or 
Federal savings association's CRA record when evaluating its 
application for a business combination. The OCC proposes three changes 
to paragraph (e)(1)(iii). First, the OCC proposes a new paragraph 
(e)(1)(iii)(A) to better describe the OCC's review and to more closely 
track the statutory requirement that the OCC assess only the CRA record 
of the filer. Further, the proposal would specify that the OCC's 
conclusion of whether the CRA performance is or is not consistent with 
approval of an application is considered in conjunction with the other 
factors in Sec.  5.33. This amendment codifies the OCC's practice of 
evaluating all policy factors in light of the whole application, as set 
forth in the OCC's Policies and Procedures Manual (PPM-6300-2). The OCC 
practice in this regard is to consider and evaluate a filer's record of 
performance under the CRA and, more broadly, the filer's plans and 
ability to enable the combined organization to serve the convenience 
and needs of its communities. Second, the OCC proposes a new paragraph 
(e)(1)(iii)(B) to recognize the expanded community reinvestment 
compliance review required by 12 U.S.C. 1831u(b)(3) when the filing 
national bank would have a branch or bank affiliate immediately 
following the transaction in any State in which the filer had no branch 
or bank affiliate immediately before the transaction. Third, the OCC 
proposes a new paragraph (e)(1)(iii)(C) requiring the filer to disclose 
whether it has entered into and disclosed a covered agreement, as 
defined in 12 CFR 35.2, in accordance with 12 CFR 35.6 and 35.7. These 
regulations implement the CRA sunshine requirements of section 48 of 
the FDI Act, 12 U.S.C. 1831y. Requiring disclosure of any covered 
agreements will better permit the OCC to review the filer's CRA record 
and any CRA-related comments on the filing. Additionally, the OCC is 
considering whether to require a filer to memorialize and publish any 
discussion between the filer and any third party with respect to 
development of any community reinvestment plan, community benefit plan, 
or similar plan in connection with a business combination. The OCC 
requests comment on whether to include this requirement in the final 
rule.
    The OCC also proposes a new paragraph (e)(1)(iv) to state that the 
OCC considers the standards and requirements contained in 12 U.S.C. 
1831u for interstate merger transactions between insured banks, when 
applicable. Current paragraph (h) describes the application of 12 
U.S.C. 1831u to combination between insured banks with different home 
states. As part of the reorganization of paragraphs (g) and (h), 
discussed below, the OCC proposes instead to include its review of the 
12 U.S.C. 1831u factors in paragraph (e)(1) for clarity.
    Paragraph (e)(8)(ii) requires a national bank or Federal savings 
association with one or more classes of securities subject to 
registration under sections 12(b) or (g) of the Securities Exchange Act 
of 1934 to file preliminary proxy material or information statements 
with the Director, Securities and Corporate Practices Division (SCP) of 
the OCC. As a result of an internal reorganization, the OCC proposes 
replacing the reference to SCP in paragraph (e)(8)(ii) with the OCC 
Chief Counsel's Office.
    Paragraph (g) provides procedures for different types of 
consolidations and mergers. Paragraph (o) provides general procedures 
for Federal savings association approval of business combinations. 
These paragraphs provide detailed procedures for national banks

[[Page 18735]]

and Federal savings associations engaging in several different types of 
business combinations. Some of these requirements are imposed by 
statute. Specifically, 12 U.S.C. 215 and 215a provide procedures for 
consolidations and mergers, respectively, between national banks and 
State or national banks located in the same State resulting in a 
national bank. Similarly, 12 U.S.C. 214 through 214d provide procedures 
for consolidations and mergers between national banks and State banks 
located in the same State resulting in a State bank. Other 
consolidation and merger transactions described in Sec.  5.33 do not 
have any statutory procedures, including interstate consolidations and 
mergers involving a national bank under 12 U.S.C. 215a-1; 
consolidations and mergers of national banks and Federal savings 
associations under 12 U.S.C. 215c and 1467a(s); consolidations and 
mergers of Federal savings associations and State banks, State savings 
associations, State trust companies, or credit unions under 12 U.S.C. 
1464(d)(3)(A) and 1467a(s); and mergers of national banks with their 
non-bank affiliates under 12 U.S.C. 215a-3.
    The OCC formerly opined in licensing decisions that 12 U.S.C. 215a-
1 incorporates the provisions of 12 U.S.C. 215 for consolidations and 
12 U.S.C. 215a for mergers.\8\ Twelve U.S.C. 215a-1 is the codification 
of section 4 of the National Bank Consolidation and Merger Act (NBCMA), 
which was enacted by section 102(b)(4)(D) of the Riegle-Neal Interstate 
Banking and Branching Efficiency Act of 1994.\9\ Twelve U.S.C. 215 and 
215a are codifications of sections 2 and 3 of the NBCMA, respectively. 
Section 4 of the NBCMA states that ``a national bank may engage in a 
consolidation or merger under this Act with an out-of-State bank if the 
consolidation or merger is approved'' (emphasis added) \10\ under 12 
U.S.C. 1831u, which governs interstate mergers of insured banks. In 
prior licensing decisions, the OCC interpreted ``under this Act'' to 
mean that a consolidation or merger under section 4 of the NBCMA is 
also a consolidation or merger under section 2 or 3 of the NBCMA, 
respectively, and thus subject to the provisions of those sections. 
However, after further analysis, the OCC believes that the proper 
reading of section 4 of the NBCMA is that it is self-referential and 
does not directly incorporate any provisions of sections 2 or 3 of the 
NBCMA. A consolidation or merger with an out-of-State bank generally 
may not be approved under sections of 2 and 3 of the NBCMA, which 
specifically apply to consolidations or mergers, respectively, between 
banks located in the same State. Accordingly, ``under this Act,'' as 
used in section 4 of the NBCMA should not be read as referring to 
sections 2 or 3 of the NBCMA. As there are no other sections of the 
NBCMA under which an interstate merger between banks could be 
conducted, ``under this Act'' can only be read to refer to section 4 
itself. As section 4 of the NBCMA, 12 U.S.C. 215a-1, does not contain 
any statutory procedures, there are no statutory procedures for 
interstate bank mergers resulting in a national bank. Therefore, the 
OCC is proposing several procedures that a national bank or Federal 
savings association may elect for business combinations for which there 
are no statutory procedural requirements.
---------------------------------------------------------------------------

    \8\ See, e.g., OCC CRA Decision #94 (June 1999).
    \9\ Public Law 103-328, 108 Stat. 2338, 2351.
    \10\ 12 U.S.C. 215a-1(a).
---------------------------------------------------------------------------

    First, the national bank or Federal savings association may follow 
the procedures currently provided in paragraph (g) for the specific 
transaction if there are no statutory procedures.
    Second, the national bank or Federal savings association may elect 
to follow the procedures applicable to a State bank or State savings 
association, respectively, chartered by the State in which the national 
bank's main office or the Federal savings association's home office is 
located. In connection with this election, the OCC proposes rules of 
construction so that the State procedures function logically for 
national banks and Federal savings associations. Specifically, any 
references to a State agency in the applicable State procedures would 
be read as referring to the OCC. Additionally, unless otherwise 
specified in Federal law, all filings required by the applicable State 
procedures would be made to the OCC. Requiring filings prescribed by 
State law to be made with the OCC, rather than a State agency, is 
consistent with past OCC practice for certain transactions under State 
corporate governance procedures adopted pursuant to 12 CFR 7.2000.\11\
---------------------------------------------------------------------------

    \11\ See, e.g., OCC Conditional Approval #859 (July 2008).
---------------------------------------------------------------------------

    Third, the national bank or Federal savings association that is the 
acquiring institution in a transaction may follow a de minimis 
procedure not requiring a shareholder vote pursuant to proposed Sec.  
5.33(p) if certain criteria are met. Proposed Sec.  5.33(p) is similar 
to the de minimis exception to general shareholder voting requirements 
for Federal stock savings associations in current Sec.  5.33(o)(3)(ii), 
which applies if the transaction does not involve an interim savings 
association; the Federal savings association charter does not change; 
each share of stock outstanding will be identical to an outstanding 
share or treasury share after the effective date of the transaction; 
and either no stock or securities convertible into stock will be issued 
or delivered under the plan of combination, or the authorized unissued 
shares or treasury shares of the resulting Federal savings association 
to be issued or delivered, plus those initially issuable upon 
conversion of any securities to be issued or delivered, do not exceed 
15 percent of the total shares of voting stock outstanding immediately 
prior to the effective date of the consolidation or merger. The OCC 
proposes making this de minimis exception available to a national bank 
engaging in transactions not subject to statutory procedural 
requirements as well as a Federal stock savings association in new 
paragraph (p) with two revisions. First, the OCC proposes permitting 
certain combinations involving an interim bank or savings association. 
Specifically, a national bank or Federal stock savings association 
engaging in a transaction involving an interim bank or saving 
association would potentially be able to use the procedures in 
paragraph (p) if the existing shareholders of the national bank or 
Federal stock savings association would directly hold the shares of the 
resulting national bank or Federal stock savings association. In 
promulgating an amendment to the predecessor to current Sec.  
5.33(o)(3)(ii), the Federal Home Loan Bank Board, the predecessor to 
OTS, stated that ``[a]lthough the ownership interests of shareholders 
of a reorganizing association generally do not undergo substantive 
change upon a reorganization into holding company form, the Board 
believes that shareholders should, nevertheless, be given an 
opportunity to approve or disapprove a plan of reorganization.'' \12\ 
The OCC believes that in a transaction involving reorganization into a 
holding company structure, shareholders of the national bank or Federal 
stock savings association should have the opportunity to vote. However, 
the OCC believes that a national bank or Federal stock savings 
association may engage in transactions involving interim banks or 
savings association that do not involve holding company reorganizations 
where shareholder votes are not necessary, if the rest of the 
requirements of proposed paragraph (p) are met. Second, to

[[Page 18736]]

provide additional flexibility, the OCC also proposes increasing the 
maximum issuance of shares eligible under this procedure for both 
national banks and Federal savings associations from 15 percent of 
total outstanding shares to 20 percent. This proposal mirrors the 20 
percent threshold in similar procedures under Delaware law.\13\
---------------------------------------------------------------------------

    \12\ 47 FR 17797 at 17799 (Apr. 26, 1982).
    \13\ See Del. Code Ann. tit. 8, Sec.  251(f).
---------------------------------------------------------------------------

    In addition to new paragraph (p), the OCC proposes implementing the 
changes discussed above through revisions to paragraphs (g), (h), and 
(o). The proposal redesignates a number of paragraphs in paragraph (g) 
to keep similar transactions consecutive and to accommodate additional 
paragraphs. Specifically, the OCC proposes redesignating current 
paragraphs (g)(2), (g)(3), (g)(6), and (g)(7) as paragraphs (g)(3), 
(g)(6), (g)(7), and (g)(9), respectively. The proposal includes new 
paragraph (g)(2) providing procedures for interstate consolidations and 
mergers under 12 U.S.C. 215a-1 resulting in a national bank and 
paragraph (g)(8) providing procedures for interstate mergers between an 
insured national bank and an insured State bank resulting in a State 
bank. Procedures for these transactions are currently contained in 
paragraph (h). New paragraphs (g)(2) and (g)(8) generally follow the 
procedures for intrastate mergers resulting in a national bank or State 
bank in paragraphs (g)(1) and redesignated paragraph (g)(7), 
respectively. The proposal includes a new corporate succession 
provision in new paragraph (g)(2)(iv) for interstate mergers resulting 
in a national bank to ensure that the resulting bank succeeds to the 
rights, franchises, and interests, including the fiduciary 
appointments, of the consolidating or merging banks. The proposal also 
includes in new and redesignated paragraphs (g)(2), (g)(3), (g)(4), 
(g)(5), (g)(6), and (g)(8) a reference to a national bank making an 
election under paragraph (h). Revised paragraph (h) would permit a 
national bank to elect to follow the procedures of the laws of the 
State which the national bank association has elected to follow 
pursuant to 12 CFR 7.2000(b) or to use the de minimis procedure in new 
paragraph (p) if applicable. The proposal also includes coordinating 
revisions to cross references to paragraph (g).
    For Federal savings associations, the OCC proposes reorganizing 
paragraph (o) to contain the election procedures. Revised paragraph 
(o)(1)(i) permits a Federal savings association to follow the 
procedures applicable to a State savings association chartered by the 
State where the Federal savings association's home office is located or 
to follow the standard procedures in revised paragraph (o)(2). As 
discussed above for national banks, revised paragraph (o)(1)(ii) would 
direct Federal savings associations to read references to State 
agencies as the OCC and to make filings generally with the OCC.
    Revised paragraph (o)(2) would contain the procedures in current 
paragraphs (o)(1) and (o)(3) governing board and shareholder votes, 
respectively. The proposal would change the de minimis exception to the 
shareholder voting requirement in current paragraph (o)(3)(ii), 
redesignated by this proposal as paragraph (o)(2)(ii)(B), to a cross-
reference to new paragraph (p). Current paragraph (o)(2) regarding the 
Federal savings association's change in name or home office would be 
redesignated as paragraph (o)(3). Finally, the OCC proposes a technical 
amendment to revised paragraph (o)(2)(ii)(A), replacing the citation to 
12 CFR 152.4 with the current citation, 12 CFR 5.22.
    Paragraph (k) requires a national bank or Federal savings 
association engaging in a consolidation or merger in which it is not 
the filer and the resulting institution to file a notice with the OCC 
advising of its intention. This requirement currently applies even when 
the surviving institution is another national bank or Federal savings 
association. Because the OCC already supervises the surviving 
institution and has acted on the application for consolidation or 
merger, the OCC proposes removing this requirement for the disappearing 
national bank or Federal savings association in this type of 
transaction. In such a case, the OCC already has the information that 
it needs to process termination and ensure that the disappearing 
national bank or Federal savings association has met all applicable 
requirements. The proposal also includes conforming revisions to 
paragraph (g).
    Paragraph (n) provides authority for, and limits on, certain 
business combinations for Federal savings associations. In addition to 
consolidations, mergers, and other specified forms of business 
combinations, this paragraph addresses ``other combinations,'' the 
definition of which in section 5.33(d)(10) includes the transfer of any 
deposit liabilities to another insured depository institution, credit 
union, or other institution. Paragraph (n)(2)(iii) provides special 
requirements for mutual savings associations. Specifically, if any 
combining savings association is a mutual savings association, the 
resulting institution must be a mutually held depository institution 
insured by the FDIC, unless the transaction is approved under 12 CFR 
part 192 governing mutual to stock conversions or the transaction 
involves a mutual holding company organization under 12 U.S.C. 1467a(o) 
or a similar transaction under State law. Under the definition of 
``other combination,'' Sec.  5.33(n)(2)(iii) applies to any transfer of 
deposit liabilities, such as the sale of a branch, even if the mutual 
savings association still exists as an ongoing institution after the 
transaction. Accordingly, a branch sale would not be permissible unless 
the sale is to an insured mutual institution or either the mutual to 
stock or mutual holding company reorganization exception applied.
    The OCC did not intend paragraph (n)(2)(iii) to apply to this type 
of transfer of deposit liabilities when it last amended this provision 
in 2015 (2015 Final Rule).\14\ In fact, Sec.  5.33(n)(4), which 
requires mutual savings associations to provide notice to 
accountholders of a proposed account transfer and to give them the 
option of retaining the account in the transferring Federal savings 
association if the account liabilities are transferred to an uninsured 
institution, contemplates just such an account transfer.
---------------------------------------------------------------------------

    \14\ 80 FR 28346 (May 18, 2015).
---------------------------------------------------------------------------

    In addition, the anomalous reading of Sec.  5.33(n)(2)(iii) was not 
present in the pre-integration version of the Federal savings 
association combination rules.\15\ Former 12 CFR 146.2(a)(4) contained 
a similar restriction on the resulting institution being a mutually 
held savings association with similar exceptions. However, Sec.  
146.2(a) applied to combinations, which was defined in 12 CFR 
152.13(b)(1) as a merger or consolidation with another depository 
institution, or an acquisition of all or substantially all of the 
assets or assumption of all or substantially all of the liabilities of 
a depository institution by another depository institution. 
Accordingly, a branch purchase or other transfer of less than 
substantially all deposits was not a combination and thus not subject 
to the restrictions in Sec.  146.2(a)(4). Furthermore, in the preamble 
to the 2015 Final Rule, the OCC did not describe paragraph (n)(2)(iii) 
as applying to transfers of less than substantially all deposits.\16\
---------------------------------------------------------------------------

    \15\ The 2015 Final Rule integrated many licensing rules that 
apply to national banks and Federal savings associations.
    \16\ The OCC stated, ``in a merger or consolidation with a 
mutual Federal savings association, a mutual savings association 
must be the resulting institution.'' 80 FR 28346 at 28374 (May 18, 
2015).

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

[[Page 18737]]

    Accordingly, the OCC proposes revising paragraph (n)(2)(iii) to 
state that a consolidation or merger involving a mutual savings 
association or the transfer of all or substantially all of the deposits 
of a mutual savings association must result in a mutually held 
depository institution insured by the FDIC unless one of the exceptions 
applies.
    The OCC also proposes adding an additional exception to paragraph 
(n)(2)(iii). The OCC and OTS have permitted transactions where a mutual 
savings association transferred all of its deposits to a non-mutual 
savings association institution followed by the voluntarily dissolution 
of the mutual savings association. These transactions are subject to 
approvals or non-objections by the OCC. However, the literal reading of 
5.33(n)(2)(iii) may not permit such transactions. Accordingly, the OCC 
proposes adding a new paragraph (n)(2)(iii)(C) that provides an 
exception to the requirement that the resulting institution be an 
insured mutual institution when the transaction is part of a voluntary 
liquidation for which the OCC has provided non-objection under Sec.  
5.48.
    Finally, the OCC proposes technical amendments to paragraph (l) to 
correct a typographical error and to revise paragraph (o)(2)(ii)(A) to 
replace the citation to 12 CFR 152.4 with the current citation, 12 CFR 
5.22.

Operating Subsidiaries of a National Bank (Sec.  5.34)

    Section 5.34 provides the licensing requirements for a national 
bank's acquisition or establishment of an operating subsidiary or 
commencement of a new activity in an existing operating subsidiary. 
Paragraph (e)(2)(i) specifies what entities may qualify as an operating 
subsidiary. Paragraph (e)(2)(i)(A) requires that the national bank must 
have the ability to control the management and operations of the 
subsidiary and no other person or entity exercises effective operating 
control over the subsidiary or has the ability to influence the 
subsidiary's operations to an extent equal to or greater than that of 
the bank. The OCC is proposing to clarify this provision by requiring 
that no other person or entity has the ability to exercise effective 
control or influence over the management or operations of the 
subsidiary to an extent equal to or greater than that of the bank or an 
operating subsidiary thereof. The OCC also is proposing conforming 
amendments to current Sec.  5.34(e)(5)(ii)(A)(3)(i), redesignated by 
this proposed rule as Sec.  5.34(f)(2)(i)(C)(1), which contains a 
parallel requirement for operating subsidiary filings and provides 
additional requirements for how the national bank must effectively 
control the operating subsidiary to be eligible to submit a notice to 
the OCC instead of an application to establish or acquire or engage in 
an activity in an operating subsidiary.
    Section 5.34(e)(2)(ii) identifies certain subsidiaries that are not 
operating subsidiaries for purposes of Sec.  5.34. The OCC is proposing 
to replace the word ``subsidiaries'' with ``entities'' to further 
clarify the exclusion. The OCC also is proposing a new paragraph 
(e)(2)(ii)(C) to specify that a trust formed for purposes of 
securitizing assets held by the bank as part of its banking business 
would not be considered an operating subsidiary. This proposal would 
codify the OCC's position that securitization trusts generally do not 
qualify as operating subsidiaries because of the bank's limited control 
over the trust and because beneficial interests in trusts lack many of 
the indicia of traditional equity. The OCC invites comment on the scope 
of this proposed provision.
    Paragraph (e)(5) provides the procedures for operating subsidiary 
filings. The OCC is proposing to redesignate the majority of paragraph 
(e)(5) as paragraph (f) and current paragraph (e)(6), addressing 
grandfathered operating subsidiaries, as paragraph (g). The OCC also is 
proposing conforming revisions to cross-references.
    Redesignated Sec.  5.34(f)(2) contains the requirements for a 
national bank to qualify for the notice process for operating 
subsidiary filings. In addition to meeting additional control 
requirements and being well capitalized and well managed, paragraph 
(f)(2)(i)(A) permits a national bank to file a notice instead of an 
application if the activity is listed in redesignated paragraph (f)(5). 
The OCC is proposing to expand the scope of this requirement to include 
any activity that is substantively the same as a previously approved 
activity and that will be conducted in accordance with the same terms 
and conditions applicable to the previously approved activity. As 
discussed above, the proposal defines ``previously approved activity'' 
in Sec.  5.3 to mean, for national banks, an activity approved in 
published OCC precedent for a national bank, an operating subsidiary of 
a national bank, or a non-controlling investment of a national bank. 
The OCC notes that the expansion of the notice requirement to 
activities that are substantively the same as previously approved 
activities does not relieve the national bank from the requirement to 
ensure that the operating subsidiary is only conducting permissible 
activities and would not affect the OCC's ability to take action if the 
OCC finds that the activities are not permissible or are conducted in 
an unsafe or unsound manner.
    Proposed Sec.  5.34(f)(2)(ii) would exempt from this expanded scope 
of permissible activities eligible for a notice the holding of an 
entity that is or will be chartered or licensed by a State as a bank, 
trust company, or savings association as an operating subsidiary. The 
proposed rule instead would require a national bank to file an 
application to hold these entities as an operating subsidiary.
    The OCC also is considering as an alternative amendment removing 
all filing requirements for permissible activities, even for those not 
previously approved by the OCC. Under this alternative amendment, 
national banks would be able to acquire or establish an operating 
subsidiary or commence a new activity in an existing operating 
subsidiary without filing a notice or application if the activity to be 
engaged in by the operating subsidiary is a permissible national bank 
activity, provided that the operating subsidiary meets the ownership 
and structural aspects currently required for notice and the national 
bank is well capitalized and well managed. National banks are generally 
not required to notify or seek approval from the OCC before they engage 
in new permissible bank activities. Accordingly, removing the 
application and notice requirement would apply this logic to operating 
subsidiaries, which may only engage in activities permissible for 
national banks. Because the use of the operating subsidiary structure 
requires additional controls on the part of the national bank to ensure 
that the bank is not subject to unlimited liability and that the 
appropriate formalities for the subsidiary are met, this alternative 
amendment would maintain the additional control and well managed and 
well managed requirement. The OCC requests comment on the proposed 
amendment to the notice provision, the alternative amendment described 
above, and any intermediate options, such as removing the filing 
requirement for activities that are substantively the same as 
previously approved activities.
    Redesignated Sec.  5.34(f)(2)(i)(B) requires that an operating 
subsidiary eligible to file a notice must be a corporation, limited 
liability company, or limited partnership. Redesignated paragraphs 
(f)(2)(i)(C)(1) and (2) contain specific requirements for the 
management, control, and ownership of these entities to be eligible for 
the notice process. If

[[Page 18738]]

a national bank does not meet these requirements, the OCC requires the 
filer to submit an application so that it may conduct a case-by-case 
review to ensure that the national bank has effective control over the 
operating subsidiary and that the bank is not exposed to undue 
risks.\17\ As trusts are currently not entities eligible for notice 
under redesignated paragraph (f)(2)(i)(B), a national bank must file an 
application for a trust to be an operating subsidiary. In recent years, 
the OCC has processed a number of applications for operating 
subsidiaries organized as trusts. From this experience, the OCC 
believes that a national bank in certain circumstances possesses 
sufficient control over trust structures that the notice process is 
appropriate. Accordingly, the OCC is proposing to add trusts to the 
list of entities eligible for notice in redesignated paragraph 
(f)(2)(i)(B). To qualify for the notice process, the national bank or 
an operating subsidiary must have the ability to replace the trustee at 
will and be the sole beneficial owner of the trust. The OCC believes 
that these requirements are appropriate in light of the flexible 
ownership and control permitted by trust structures. Requiring a 
national bank or its operating subsidiary to be able to replace the 
trustee at will and to be the sole beneficial owner of the trust would 
ensure that the bank has sufficient control over the trust making it 
unnecessary for the OCC to conduct a case-by-case review through an 
application process. Additionally, the OCC is proposing to reorganize 
redesignated paragraphs (f)(2)(i)(C)(1) and (2) to reflect the addition 
of trust structures and to explicitly recognize that the national bank 
may meet the required control provisions indirectly through another 
operating subsidiary. The OCC intends no substantive change to the 
provisions that address corporations, limited liability partnerships, 
or limited liability companies.
---------------------------------------------------------------------------

    \17\ See 61 FR 60350 (Nov. 27, 1996).
---------------------------------------------------------------------------

    Current 5.34(e)(7) requires national banks to file an annual report 
with the OCC describing operating subsidiaries that do business 
directly with consumers. The OCC publishes this information on its 
website. The OCC is proposing to remove this requirement to reduce 
burden and because it generally duplicates information contained 
elsewhere, such as the FFIEC's National Information Center (NIC).\18\ 
In addition, the majority of the operating subsidiaries reported are 
subject to the jurisdiction of the Consumer Financial Protection 
Bureau, and not the OCC, for most consumer law issues.
---------------------------------------------------------------------------

    \18\ The NIC may be found at https://www.ffiec.gov/NPW.
---------------------------------------------------------------------------

    Finally, the OCC is proposing a technical change that would remove 
the definitions of ``well capitalized'' and ``well managed'' from Sec.  
5.34(d). As described above, the OCC is proposing to define these terms 
in Sec.  5.3.

Bank Service Company Investments by a National Bank or Federal Savings 
Association (Sec.  5.35)

    Section 5.35 addresses national bank and Federal savings 
association investments in bank service companies as authorized by the 
Bank Service Company Act (BSCA) (12 U.S.C. 1861-1867). Pursuant to 
section 2 of the BSCA (12 U.S.C. 1862), paragraph (i) of Sec.  5.35 
provides that a national bank or Federal savings association may not 
invest more than 10 percent of its capital and surplus in a bank 
service company. In addition, paragraph (i) also provides that the 
national bank's or Federal savings association's total investments in 
all bank service companies may not exceed five percent of the national 
bank's or Federal savings association's total assets. However, section 
2 of the BSCA also specifies that the investment limitations in section 
5(c)(4)(B) of the HOLA apply to Federal savings associations with 
regard to bank service company investments. This limitation is not 
currently included in paragraph (i). Accordingly, the OCC proposes to 
revise paragraph (i) to directly reference the limitations in section 2 
of the BSCA.
    The OCC also is proposing a technical correction to the title of 
this section that would remove the extraneous word ``investment.''

Other Equity Investments by a National Bank (Sec.  5.36)

    Section 5.36 provides the procedures for national banks to make 
certain types of equity investments. Paragraphs (e) and (f) provide the 
procedures and requirements for a national bank to make a non-
controlling investment that is not prescribed by other OCC rules. The 
OCC is proposing to clarify the types of national bank equity 
investments that are subject to Sec.  5.36 by adding a new definition 
to paragraph (c) that would define ``non-controlling investment'' to 
mean an equity investment made pursuant to 12 U.S.C. 24(Seventh) that 
is not governed by procedures prescribed by another OCC rule. 
Additionally, the OCC is proposing to specify in the definition that 
``non-controlling investment'' does not include a national bank holding 
interests in a trust formed for the purposes of securitizing assets 
held by the bank as part of its banking business or for the purposes of 
holding multiple legal titles of motor vehicles or equipment in 
conjunction with lease financing transactions. This would codify OCC 
interpretation that these interests do not have sufficient indicia of 
ownership and control to qualify as an equity investment for purposes 
of Sec.  5.36. The OCC also is proposing a conforming change to 
paragraphs (e) and (f).
    For a national bank to make a noncontrolling investment, current 
Sec.  5.36 requires a filing with the OCC that: (1) Describes the 
structure of the investment and the activity or activities conducted by 
the enterprise in which the bank is investing; (2) describes how the 
bank has the ability to prevent the enterprise from engaging in 
impermissible activities or has the ability to withdraw its investment; 
(3) describes how the investment is convenient and useful to the bank 
in carrying out its business and not a mere passive investment; (4) 
certifies that the bank's loss exposure is limited; and (5) certifies 
that the enterprise agrees to be subject to OCC supervision and 
examination, subject to the limitations and requirements of section 45 
of the FDI Act (12 U.S.C. 1831v) and section 115 of the Gramm-Leach-
Bliley Act (12 U.S.C. 1820a).
    A national bank must file an application with the OCC to make a 
non-controlling investment unless it qualifies for the notice procedure 
in Sec.  5.36(e). A national bank may file a notice if: (1) The 
investment meets the above requirements; (2) the enterprise engages in 
activities that are listed in Sec.  5.34(e)(5)(v) (permissible 
operating subsidiary activities) or an activity that is substantively 
the same as that contained in published OCC precedent approving a non-
controlling investment by a national bank or its operating subsidiary; 
and (3) the bank is well managed and well capitalized. As discussed 
above for operating subsidiary notices, the OCC is proposing to expand 
the activities eligible for notice for non-controlling investments to 
all previously approved activities, as defined in proposed Sec.  5.3. 
This definition includes activities approved for national banks and 
their operating subsidiaries, in addition to previously approved non-
controlling investments. The proposal also reorganizes paragraph (e) 
and makes conforming changes to paragraphs (e)(2) and (e)(4). 
Additionally, the OCC is considering removing the filing requirement 
for non-controlling investments in enterprises engaging in bank 
permissible activities, as discussed above for national bank

[[Page 18739]]

operating subsidiaries. The OCC requests comment on the proposed 
amendment to the notice provision, the alternative amendment described 
above, and any intermediate options, such as removing the filing 
requirement for activities that are substantively the same as 
previously approved activities.
    As noted, whether a national bank is filing a notice under 
paragraph (e) or an application under paragraph (f), the current rule 
requires the enterprise in which the bank will make a non-controlling 
investment to agree to OCC supervision and examination. The OCC is 
proposing to amend paragraph (f), redesignated as paragraph (f)(1), to 
permit national banks to file an application for prior approval to 
invest in an enterprise that has not agreed to be subject to OCC 
supervision and examination. The OCC believes that this will give 
national banks greater flexibility to make permissible non-controlling 
investments, while giving the OCC an opportunity for an in-depth review 
of the proposed investment to ensure there is no inappropriate risk to 
the national bank's safety and soundness.
    Additionally, the OCC is proposing a new paragraph (f)(2) to 
provide for expedited review of certain applications for investments in 
enterprises that do not agree to OCC supervision and examination that 
pose minimal risk to the national bank's safety and soundness. An 
application under proposed paragraph (f)(2) would be deemed approved by 
the OCC within 10 days after the application is received if five 
additional requirements are met. First, the enterprise must engage in 
permissible bank activities as described in proposed paragraph (e) of 
this section. Second, the national bank must be well managed and well 
capitalized. These two requirements parallel the requirements for 
filing a notice. Third, the book value of the national bank's non-
controlling investment for which the application is submitted must not 
be more than 1% of the bank's capital and surplus. Fourth, no more than 
50% of the enterprise may be owned or controlled by banks or savings 
associations subject to examination by an appropriate Federal banking 
agency or credit unions insured by the National Credit Union 
Association. Many enterprises in which national banks make non-
controlling investments are owned by a consortium of banks and savings 
associations and provide services to their owners and others. Given the 
potentially complex interactions between these enterprises and their 
owners and the additional risks posed to the owners, the OCC believes 
that OCC supervision and examination of these enterprises is necessary 
for the safety and soundness of the investing national banks and 
Federal savings associations. Accordingly, the proposed rule does not 
permit investments in these entities without their commitment to OCC 
supervision and examination, and therefore expedited review of these 
investments would not be available. Finally, the OCC must not have 
notified the national bank that the application has been removed from 
expedited review, or that the expedited review process has been 
extended, pursuant to the standards contained in Sec.  5.13(a)(2).
    In addition, the proposed rule would permit a national bank to make 
a non-controlling investment without a filing to the OCC in certain 
circumstances. Under proposed paragraph (g), a national bank would be 
permitted to make a non-controlling investment without an application 
or notice if the activities of the enterprise are limited to those 
activities previously reported by the bank in connection with making or 
acquiring a non-controlling investment; the activities in the 
enterprise continue to be legally permissible for a national bank; the 
bank's non-controlling investment will be made in accordance with any 
conditions imposed by the OCC in approving any prior non-controlling 
investment in an enterprise conducting these same activities; and the 
bank is able to make the representations and certifications specified 
in Sec. Sec.  5.36(e)(3) through (e)(7), as proposed to be amended. As 
the national bank would already have a non-controlling investment in an 
entity conducting particular activities, the OCC believes that there 
would be little risk in the bank making an additional non-controlling 
investment in an entity conducting the same activities. Furthermore, 
the OCC believes that non-controlling investments pose similar risks to 
national banks as operating subsidiaries, and proposed paragraph (g) 
would parallel current Sec.  5.34(e)(5)(vi), redesignated in this 
proposal as Sec.  5.34(f)(6), which permits national banks to make 
investments in operating subsidiaries without a filing. Therefore, the 
OCC believes that proposed paragraph (g) would reduce burden without 
jeopardizing the national bank's safety and soundness. As a conforming 
amendment, the OCC is proposing to redesignate current paragraphs (g) 
through (i) as paragraphs (h) through (j), respectively.
    Redesignated paragraph (j) provides exceptions to the rules of 
general applicability. The OCC is proposing to remove the exception to 
Sec.  5.9, public availability, because some of these investments may 
be of public interest. Further, the proposal would permit the OCC to 
determine that some or all provisions in Sec. Sec.  5.8, 5.10, and 5.11 
apply if it concludes that an application presents significant or novel 
policy, supervisory, or legal issues. This proposed paragraph (j) would 
parallel the equivalent provision for operating subsidiary filings in 
current Sec.  5.34(e)(5)(iii).

Investment in National Bank or Federal Savings Association Premises 
(Sec.  5.37)

    Section 5.37 describes the procedures for national bank and Federal 
savings association investment in bank premises. Paragraph (d)(1)(i) 
provides that the procedures of Sec.  5.37 are applicable to 
investments in the stocks, bonds, debentures, or other obligations of 
any corporation holding the premises of the national bank or Federal 
savings association in addition to direct investments in the bank 
premises. Twelve CFR 7.1000 provides the authority for national bank 
and Federal savings association investments in bank premises. In 
addition to the investments listed in Sec.  5.37(d)(1)(i), Sec.  
7.1000(a)(3) provides that national banks and Federal savings 
associations may hold bank premises through a subsidiary organized as a 
corporation, partnership, or similar entity (e.g., a limited liability 
company). The OCC proposes to revise Sec.  5.37(d)(1)(i) to recognize 
the permissibility of holding bank premises through partnerships and 
similar entities, such as limited liability companies, so that it is 
consistent with Sec.  7.1000(a)(3).
    In addition, the OCC proposes to remove the definition of ``capital 
and surplus'' in Sec.  5.37. Because Sec.  5.3 defines this term, it is 
not necessary to include it in Sec.  5.37. Finally, the OCC proposes to 
correct a technical error in paragraph (a), replacing ``12 U.S.C. 
317d'' with ``12 U.S.C. 371d.''

Operating Subsidiaries of a Federal Savings Association (Sec.  5.38)

    Section 5.38 provides the application requirements for a Federal 
savings association's acquisition or establishment of an operating 
subsidiary or commencement of a new activity in an existing operating 
subsidiary when required by section 18(m) of the FDI Act (12 U.S.C. 
1828(m)). Section 5.38 is largely parallel to Sec.  5.34 for national 
bank operating subsidiaries, except that where a national bank would 
file a notice, a Federal savings association would file an application 
eligible for expedited review. Accordingly, the OCC is proposing 
coordinating revisions to

[[Page 18740]]

Sec.  5.38 including: (1) Revising the standard for qualifying 
subsidiaries in paragraph (e)(2)(i)(A); (2) excluding securitization 
trusts from the scope of the section in new paragraph (e)(2)(iii)(C); 
(3) redesignating paragraphs (e)(5), (e)(6), and (e)(7) as paragraphs 
(f), (g), and (h), respectively; (4) expanding the activities eligible 
for expedited review to include activities substantially the same as a 
previously approved activity (as proposed to be defined in Sec.  5.3) 
and conducted in accordance with the same terms and conditions 
applicable to the previously approved activity, in redesignated 
paragraph (f)(2)(ii)(B); (5) expanding the entities eligible for 
expedited review to include certain trusts where the Federal savings 
association or its operating subsidiary is the sole beneficiary and has 
the ability to replace the trustee at will, in redesignated paragraphs 
(f)(2)(ii)(C) and (D); and (6) explicitly recognizing that the control 
required by redesignated paragraphs (f)(2)(ii)(D) may be met through an 
operating subsidiary of the Federal savings association. In addition, 
the OCC is proposing technical changes that would remove the 
definitions of ``well capitalized'' and ``well managed'' from Sec.  
5.38, as in proposed Sec.  5.34, and replace the word ``subsidiary'' 
with the more appropriate word ``entity'' in the introductory text of 
paragraph (e)(2)(iii).
    In addition, the OCC is proposing to correct an inadvertent 
omission in the 2015 Final Rule by amending redesignated Sec.  
5.38(f)(2)(ii)(D)(1), which contains requirements for how a Federal 
savings association must effectively control an operating subsidiary to 
be eligible for expedited review of an application. Although the OCC 
made changes in the 2015 Final Rule to current Sec. Sec.  
5.34(e)(2)(i)(A), 5.34(e)(5)(ii)(A)(3)(i), and 5.38(e)(2)(i)(A) to 
address commenter's concerns regarding the application of the rule to 
joint ventures,\19\ the OCC did not make corresponding conforming 
changes to current Sec.  5.38(e)(5)(ii)(B)(4)(i), redesignated in this 
proposal as Sec.  5.38(f)(2)(ii)(D)(1). However, all of these 
provisions should contain parallel language. Accordingly, the OCC is 
proposing to revise redesignated Sec.  5.38(f)(2)(ii)(D)(1) so that it 
parallels current Sec.  5.34(e)(5)(ii)(A)(3)(i), redesignated in this 
proposal as Sec.  5.34(f)(2)(i)(C)(1).
---------------------------------------------------------------------------

    \19\ See 80 FR 28346, at 28375 (May 18, 2015).
---------------------------------------------------------------------------

Financial Subsidiaries of a National Bank (Sec.  5.39)

    Section 5.39 describes the procedures for national bank acquisition 
of, and conduct of activities in, a financial subsidiary pursuant to 
section 5136A of the Revised Statutes (12 U.S.C. 24a). Paragraph 
(h)(5)(ii) of Sec.  5.39 specifies that the restrictions contained in 
section 23A(a)(1)(A) of the Federal Reserve Act (12 U.S.C. 
371c(a)(1)(A)), do not apply to a covered transaction between a bank 
and its financial subsidiary. However, section 609 of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act removed this section 23A 
exclusion. Accordingly, the OCC proposes to remove paragraph 
(h)(5)(ii).
    The OCC also proposes to clarify the approval process for financial 
subsidiary activities. First, consistent with other changes in part 5, 
the OCC proposes to change the terminology for filings under Sec.  5.39 
from notice to application. However, the OCC does not intend any 
substantive change in standards or procedures.
    Second, as the OCC recognized in the initial proposal for Sec.  
5.39, section 24a states that OCC approval shall be based solely upon 
specific statutory factors.\20\ Accordingly, the OCC proposed the 
current procedures for Sec.  5.39 upon the understanding that the 
approval may occur upon a bank's submission of information 
demonstrating satisfaction of the statutory criteria.\21\ The OCC 
proposes to add a new paragraph (i)(3) specifying that an application 
is deemed approved upon filing of the information required by the 
procedures of paragraphs (i)(1) or (i)(2) within the time frames 
provided.
---------------------------------------------------------------------------

    \20\ 65 FR 3159 (Jan. 20, 2000).
    \21\ Id.
---------------------------------------------------------------------------

    In addition, the OCC is proposing technical changes to paragraph 
(d) that would remove the definitions of ``appropriate Federal banking 
agency,'' ``well capitalized,'' and ``well managed.'' As discussed 
above, the proposal would amend Sec.  5.3 to add these definitions 
without any substantive changes.
    Finally, consistent with other proposed changes in part 5, the OCC 
proposes changing the terminology for ``notice'' to ``application'' 
thereby conforming the terminology to the licensing action provided in 
Sec.  5.39. No substantive change is intended from this change in 
nomenclature.

National Bank Director Residency and Citizenship Waivers (New Sec.  
5.43)

    The OCC proposes a new Sec.  5.43 to provide procedures for waivers 
of the national bank director residency and citizenship requirements. 
Section 5146 of the Revised Statues (12 U.S.C. 72) requires every 
director of a national bank to be a citizen of the United States and 
that a majority of the directors reside in the State, Territory, or 
District where the national bank is located, or within one hundred 
miles of the location of the office of the bank. These requirements 
reflect the principle of local ownership and control of national banks. 
Twelve U.S.C. 72 provides the Comptroller the discretion to waive the 
residency requirement and to waive the citizenship requirement for not 
more than a minority of the total number of directors.
    The OCC has processed requests for waivers of the residency and 
citizenship requirements for many years. The ``National Bank Director 
Waivers'' booklet of the Comptroller's Licensing Manual currently 
describes the procedures for requesting and granting waivers. The OCC 
proposes codifying these procedures in a new 12 CFR 5.43 to better 
clarify and structure the waiver process.
    Proposed paragraph (a) would set forth the authority for the 
regulation, 12 U.S.C. 72 and 93a, the latter of which grants the OCC 
general rulemaking authority. Proposed paragraph (b) would set forth 
the scope of the section as describing the procedures for the OCC to 
waive the residency and citizenship requirements.
    Proposed paragraph (c) would set forth the application procedures. 
Under paragraph (c)(1), a national bank would file a written 
application with the OCC to request a waiver of the residency 
requirement. Proposed paragraph (c)(1) also provides that the OCC may 
grant this waiver for individual directors or for any number of 
director positions. The OCC typically grants residency waivers for a 
certain number of directors on the board rather than to specific 
individuals. However, the OCC proposes to increase flexibility by 
permitting either procedure.
    Under proposed paragraph (c)(2), a national bank could request a 
waiver of the citizenship requirements for individuals who comprise up 
to a minority of the total number of directors by filing a written 
application with the OCC. Proposed paragraph (c)(2) also provides that 
the OCC may grant a waiver on an individual basis. Given the more 
prescriptive nature of the citizenship requirement and the greater 
background investigation that the OCC undertakes on proposed non-
citizen directors, OCC practice is to grant waivers to individuals and 
not to a designated number of directors. Accordingly, the OCC also 
proposes specifying in paragraph (c)(2) that a citizenship waiver is 
valid until the individual leaves the board or the OCC revokes the 
waiver in accordance with

[[Page 18741]]

proposed paragraph (d), discussed below.
    Proposed paragraph (c)(3)(i) requires the subject of a citizenship 
waiver application to submit the information prescribed in the 
Interagency Biographical and Financial Report. Proposed paragraph 
(c)(3)(ii) provides that the OCC may require additional information 
about the subject of a citizenship waiver application, including 
legible fingerprints, if appropriate. This proposed paragraph also 
permits the OCC to waive any of the information requirements if the OCC 
determines that doing so is in the public interest.
    Proposed paragraph (c)(4) provides for exceptions to the rules of 
general applicability. The OCC proposes that Sec. Sec.  5.8 (public 
notice), 5.9 (public availability), 5.10 (comments), and 5.11 (hearings 
and other meetings) not apply to applications for citizenship waivers. 
The OCC believes that the applications will largely consist of 
information specific to a bank's internal practices as well as 
significant private information about the individuals subject to the 
waiver applications. Accordingly, the OCC does not believe that these 
applications should be publicly available or subject to public notice, 
comment, or hearings.
    The OCC also would add a new paragraph (d) that would provide 
procedures for the OCC's revocation of a residency or citizenship 
waiver. Under these procedures, the OCC would provide written notice 
before a revocation to the national bank and affected director(s) of 
its intention to revoke the waiver and the basis for its intention. The 
bank and the affected director(s) may respond in writing to the OCC 
within 10 calendar days, unless the OCC determines that a shorter 
period is appropriate in light of relevant circumstances. The OCC will 
consider the written responses of the bank and affected director(s), if 
any, prior to deciding whether or not to revoke a residency or 
citizenship waiver. The OCC will notify the national bank and the 
director of the OCC's decision to revoke a residency or citizenship 
waiver in writing. The OCC's decision to revoke a residency or 
citizenship waiver would be effective, if the director appeals pursuant 
to proposed paragraph (e), upon the director's receipt of the decision 
of the Comptroller, an authorized delegate, or the appellate official, 
to uphold the initial decision to revoke the residency or citizenship 
waiver. If the director does not appeal, the revocation would be 
effective the expiration of the period to appeal.
    Although 12 U.S.C. 72 does not contain any explicit provisions for 
revoking a waiver, the OCC believes that the decision to revoke a 
waiver is consistent with the Comptroller's authority to grant a 
waiver. Absent this authority, many residency waivers effectively would 
be perpetual as the OCC generally grants residency waivers for a 
designated number of director positions. Further, changing geo-
political circumstances may in some circumstances warrant the 
revocation of citizenship waivers, particularly if foreign governments 
are unduly influencing directors' activities with regard to a national 
bank.
    The OCC recognizes that discretion in revoking residency and 
citizenship waivers is premised upon the guarantee of due process. 
Accordingly, the proposed rule provides affected national banks and 
directors the opportunity to respond to the OCC's intention to revoke a 
waiver. The OCC will specifically consider written responses prior to 
deciding on the revocation.
    Proposed paragraph (e) would provide an appeals process for a 
director whose residency or citizenship waiver the OCC has decided to 
revoke. This proposed appeals process is parallel to that provided for 
disapprovals of directors and senior executive officers in 12 CFR 5.51, 
and provides review by the Comptroller, an authorized delegate, or a 
designated appellate official. A director may appeal on the grounds 
that the reasons for the initial decision to revoke were contrary to 
fact or arbitrary and capricious. The Comptroller, an authorized 
delegate, or the appellate official will independently determine 
whether the reasons given for the initial decision to revoke are 
contrary to fact or arbitrary and capricious. If they determine either 
to be the case, the Comptroller, an authorized delegate, or the 
appellate official may reverse the initial decision to revoke the 
waiver.
    Proposed paragraph (f) provides that waivers outstanding on the 
effective date of a final rule would remain in effect notwithstanding 
proposed paragraph (c)(2), unless revoked pursuant to proposed 
paragraph (d).

Increases in Permanent Capital of a Federal Stock Savings Association 
(Sec.  5.45)

    Section 5.45 sets out the OCC's rules addressing increases in 
permanent capital by a Federal savings association organized in stock 
form. The OCC is proposing two technical amendments to this section. 
First, the proposed rule would change the term ``Federal savings 
association'' or ``savings association'' to ``Federal stock savings 
association'' each time it appears, except as used in the defined term 
``eligible savings association,'' to more accurately reflect the scope 
of this section. Second, the proposed rule would replace the reference 
to 12 CFR part 197 in paragraph (h) with 12 CFR part 16, which now 
applies to Federal savings associations.
    The OCC is considering one other change to Sec.  5.45. Under the 
current rule, Federal savings associations that meet the criteria for 
an eligible savings association described in Sec.  5.3 may have their 
applications for capital increases, when required, reviewed under an 
expedited process. In the OCC's experience, the most relevant factors 
in considering such applications are the financial and managerial 
conditions of the requesting Federal savings association, given the 
more direct relationship between capital, on the one hand, and the 
financial and managerial conditions, on the other hand. Accordingly, 
the OCC requests comment on whether the agency should amend its 
regulations to focus the eligibility criteria such that only well 
capitalized and well managed Federal savings associations are eligible 
to request expedited review of their applications for capital 
increases. If the OCC makes this change to Sec.  5.45 in the final 
rule, it also would amend its other capital filing-related rules in 
part 5 based on this same rationale, Sec. Sec.  5.46 (Changes in 
permanent capital of a national bank), 5.47 (Subordinated debt issued 
by a national bank), 5.55 (Capital distributions by Federal savings 
associations), and 5.56 (Inclusion of subordinated debt securities and 
mandatorily redeemable preferred stock as Federal savings association 
supplementary (tier 2) capital).

Changes in Permanent Capital of a National Bank (Sec.  5.46)

    Section 5.46 sets out the OCC's rules addressing changes in 
permanent capital for a national bank. Paragraph (g)(1)(ii) provides 
that prior OCC approval is required for an increase in permanent 
capital in certain cases. In addition, pursuant to 12 U.S.C. 57, 
paragraph (i)(3) of Sec.  5.46 requires a bank to submit a notice to 
the appropriate licensing office after it completes an increase in 
capital, regardless of whether prior approval is required. The OCC 
proposes to clarify these procedures for increases in capital requiring 
prior approval by referencing paragraph (i)(3) in the introductory text 
of paragraph (g)(1)(ii) and removing it from paragraph (g)(1)(ii)(C). 
The OCC also proposes to clarify the introductory text of paragraph 
(g)(1)(ii) to specifically

[[Page 18742]]

indicate that an application to increase a national bank's permanent 
capital may be eligible for expedited review under paragraph (i)(2).
    Paragraph (h) provides that a national bank must apply and obtain 
the OCC's prior approval for any reduction in its permanent capital. 
Paragraph (i)(2) provides expedited review procedures and currently 
provides that an eligible bank may request approval for decreasing its 
capital for up to four consecutive quarters. The OCC proposes a number 
of amendments to paragraphs (h) and (i) to add flexibility for national 
banks and to clarify procedures. First, the proposal would amend 
paragraph (h) to permit a national bank to request approval in a 
standard application for a reduction in capital for multiple quarters. 
The request need only specify a total dollar amount for the requested 
period and need not specify amounts for each quarter. As a result, a 
national bank may request approval for a reduction in permanent capital 
over more than four consecutive quarters. However, this request would 
not be eligible for expedited review so that the OCC may have the time 
to carefully review the request. Second, the proposed rule would add 
flexibility to the expedited process in paragraph (i)(2) by specifying 
that an eligible national bank need only state the total dollar amount 
rather than per-quarter reductions in requests for four-quarter 
decreases. As a conforming change, the OCC proposes to amend paragraph 
(i)(5) to clarify that the OCC's approval of a capital change does not 
expire within one year of the date of the approval if the OCC specifies 
a longer period.

Subordinated Debt Issued By a National Bank (Sec.  5.47)

    Section 5.47 describes the requirements applicable to a national 
bank's issuance of subordinated debt, including subordinated debt 
intended for inclusion in tier 2 capital. The OCC is proposing to add a 
new definition of ``subordinated debt document'' to Sec.  5.47(c) to 
mean any document pertaining to an issuance of subordinated debt, and 
any renewal, extension, amendment, modification, or replacement 
thereof, including the subordinated debt note, and any global note, 
pricing supplement, note agreement, trust indenture, paying agent 
agreement, or underwriting agreement. The OCC intends this list of 
documents to be illustrative and not exclusive.
    This change would clarify that a national bank should submit with 
their applications all material documents needed for the OCC to review 
the application for compliance with its regulatory requirements. The 
OCC reviews ancillary securities documents to ensure that they do not 
contain language that conflicts with required disclosures or statements 
made in the subordinated debt note. The OCC invites comment on 
revisions to the proposed definition and the scope of relevant 
documents typically employed in subordinated debt issuances. The OCC 
also is proposing conforming revisions throughout Sec.  5.47 to better 
reflect this terminology.
    Paragraph (d)(3)(ii) contains a list of statements and descriptions 
that a national bank must clearly and accurately disclose in the 
subordinated debt note. The OCC proposes adding language to paragraph 
(d)(3)(ii)(C) to clarify that a national bank is only required to 
disclose the OCC's authority under 12 CFR 3.11 to limit certain 
distributions if the disclosure requirement is applicable to the 
subordinated debt issuance. Specifically, a national bank only will be 
required to incorporate this disclosure language into a subordinated 
debt note if the issuing bank, or any successor institution to the 
issuing bank, would have discretion under the terms of the subordinated 
debt to permanently or temporarily suspend payments without triggering 
an event of default. This amendment would provide flexibility and 
reduce burden by permitting national banks to omit the provisions when 
warranted.
    The OCC also proposes to add a new paragraph (d)(3)(ii)(D) that 
would require a national bank to disclose in a subordinated debt note 
that the subordinated debt obligation may be fully subordinated to 
interests held by the U.S. government in the event that the national 
bank enters into a receivership, insolvency, liquidation, or similar 
proceeding. This proposed requirement mirrors the language in 12 CFR 
3.20(d)(1)(xi), which requires advanced approaches banks to disclose 
this information in the governing agreement, offering circular, or 
prospectus of an instrument to be included in tier 2 capital. The OCC 
believes that disclosing this information to potential investors in 
subordinated debt is beneficial for all national banks, even those that 
are not advanced approaches banks or that do not intend to include the 
debt in tier 2 capital. The proposal would make a conforming change to 
paragraph (e) introductory text to remove the reference to advanced 
approaches national banks.
    Paragraphs (f)(1)(ii) and (h) govern the procedure for a national 
bank to include subordinated debt in tier 2 capital. Currently, these 
provisions provide that a national bank may not include subordinated 
debt as tier 2 capital unless it has filed a notice with the OCC and 
received notification from the OCC that the subordinated debt qualifies 
as tier 2 capital. The OCC proposes to make these paragraphs consistent 
with the rest of part 5 by changing the terminology from notice to 
application. This change is not intended to be substantive. The OCC 
also is proposing clarifying changes to this paragraph.
    Additionally, the OCC proposes to provide explicit regulatory 
authority for a national bank to seek approval to include subordinated 
debt as tier 2 capital before issuance of the subordinated debt in 
paragraphs (f)(1)(ii) and (h)(1). National banks routinely seek 
confirmation from the OCC that subordinated debt will qualify as tier 2 
capital prior to issuance to mitigate the risk of issuing nonqualifying 
subordinated debt. This amendment would codify this practice. Under the 
proposal, and as with current practice, the OCC would not provide final 
approval that the subordinated debt qualifies as tier 2 capital until 
after the debt is issued and final pricing is available. Relatedly, the 
OCC proposes a conforming revision to paragraph (h)(2)(ii), which 
requires the application to include the amount and date of receipt of 
funds, to permit submission of the projected amount and date of 
receipt.
    The OCC also proposes to add a new paragraph (h)(2)(iii) requiring 
the application to include the interest rate or expected calculation 
method for the interest rate for the subordinated debt. This would 
assist the OCC in reviewing applications for inclusion of the 
subordinated debt in tier 2 capital.
    Paragraphs (f)(2)(ii) and (g)(1)(ii) require OCC approval for a 
national bank to prepay subordinated debt. The approval requirements 
for prepayment of subordinated debt include specific additional 
requirements for prepayment that is in the form of a call option. 
Specifically, a national bank seeking to prepay subordinated debt in 
the form of a call option is required to provide: (1) A statement 
explaining why the national bank believes that following the proposed 
prepayment the national bank would continue to hold an amount of 
capital commensurate with its risk; or (2) a description of the 
replacement capital instrument that meets the criteria for tier 1 or 
tier 2 capital under 12 CFR 3.20, including the amount of such 
instrument, and the time frame for issuance. The OCC has found that in 
the distinction between prepayment and prepayment in the form of a call 
option is immaterial to OCC review, that the

[[Page 18743]]

additional requirements are generally satisfied in most prepayment 
applications, and that the additional information is helpful for the 
OCC to determine the impact of the prepayment on the national bank's 
capital levels and safety and soundness. Accordingly, the OCC proposes 
having a single procedure for the prepayment of subordinated debt that 
would incorporate the requirements for prepayment in the form of a call 
option. The proposal contains a coordinating revision to paragraph 
(g)(2)(ii) regarding OCC approval.
    Currently, Sec.  5.47 does not explicitly require a national bank 
to make a filing with the OCC if the national bank makes a material 
change to its outstanding subordinated debt note or any related 
subordinated debt documents. The OCC proposes to add new paragraphs 
(f)(3) and (g)(1)(iii) to ensure that subordinated debt issuances 
remain compliant with OCC regulatory requirements, including the 
requirements for inclusion in tier 2 capital. This revision would 
require OCC approval for a material change to an existing subordinated 
debt document if the bank would have been required to receive OCC 
approval to issue the security under paragraph (f)(1) or to include it 
in tier 2 capital under paragraph (h). An application to make a 
material change would include: (1) A description of the proposed 
changes; (2) a statement of whether the national bank is subject to or 
required to file a capital plan with the OCC, and if so, how the 
proposed change conforms to the capital plan; (3) a copy of the revised 
subordinated debt documents reflecting all proposed changes; and (4) a 
statement that the proposed changes to the subordinated debt documents 
comply with all applicable laws and regulations.
    The OCC also is proposing to make certain stylistic changes to the 
rule text of Sec.  5.47 that are not intended to impact the substantive 
requirements applicable to national banks.

Change in Control of a National Bank or Federal Savings Association; 
Reporting of Stock Loans (Sec.  5.50)

    Section 5.50 sets forth the procedures and standards for changes in 
control of national banks and Federal savings associations. Paragraph 
(d)(8) contains a definition of insured depository institution. 
However, that term is not used within Sec.  5.50. Accordingly, the OCC 
proposes to replace that definition with the definition of ``depository 
institution,'' to mean a depository institution as defined in section 
3(c)(1) of the FDI Act (12 U.S.C. 1813(c)(1)).
    Paragraph (f)(3)(iv) states that an applicant may request a hearing 
by the OCC within 10 days of receipt of a notice disapproving a change 
in control and that following final agency action under 12 CFR part 19, 
further review by the courts is available. Paragraph (f)(6) provides 
that the OCC will notify the proposed acquiror in writing of a 
disapproval within three days and will indicate the basis of its 
disapproval. For clarity, the OCC proposes combining these provisions 
in a revised paragraph (f)(6). The OCC also proposes to add language 
stating that this disapproval notice will inform the filer of the 
availability of a hearing. Additionally, the OCC proposes a new 
paragraph (f)(6)(iii) specifying that if a filer fails to request a 
hearing with a timely request, the notice of disapproval constitutes a 
final and unappealable order. This language is currently included in 12 
CFR 19.161 and the OCC believes it also should be included in Sec.  
5.50 to put filers on notice of the implications of failure to request 
a hearing in a timely manner.
    Finally, paragraph (g)(2)(i) provides procedures for the OCC's 
release of information related to a change in control notice, including 
publication of information in the OCC's Weekly Bulletin. The OCC 
proposes revising this provision to reflect the information that the 
OCC publishes in the Weekly Bulletin in practice, namely the date of 
filing, the disposition of the notice and date thereof, and the 
consummation date of the transaction, if applicable.

Changes in Directors and Senior Executive Officers of a National Bank 
or Federal Savings Association (Sec.  5.51)

    Section 5.51 implements section 914 of the Financial Institutions 
Reform, Recovery, and Enforcement of 1989 (12 U.S.C. 1831i). Section 
914 requires a national bank or Federal savings association to provide 
prior notice to the OCC of the proposed addition of any individual to 
the board of directors or the employment of any individual as a senior 
executive officer of a bank if, among other things, the bank is in 
troubled condition. Paragraph (c)(4) defines ``senior executive 
officer'' to mean the president, chief executive officer, chief 
operating officer, chief financial officer, chief lending officer, 
chief investment officer, and any other individual the OCC identifies 
in writing to the national bank or Federal savings association who 
exercises significant influence over, or participates in, major policy 
making decisions of the bank or savings association without regard to 
title, salary, or compensation. The term also includes employees of 
entities retained by a national bank or Federal savings association to 
perform functions in lieu of directly hiring the individuals, and the 
individual functioning as the chief managing official of the Federal 
branch of a foreign bank. The OCC proposes to add chief risk officer to 
the definition of senior executive officer given the increase in that 
role at many national banks and Federal savings associations. The OCC 
invites comment on whether it should add others to the definition or 
remove any currently included in the definition.
    Paragraph (c)(7) provides the definition of ``troubled condition,'' 
which is one of the circumstances in which a national bank or Federal 
savings association is required to file a notice under Sec.  5.51. 
Pursuant to paragraph (c)(7)(ii), this definition includes a national 
bank or Federal savings association that is subject to a cease and 
desist order, a consent order, or a formal written agreement, unless 
otherwise informed in writing by the OCC. The OCC is proposing to amend 
paragraph (c)(7)(ii) to specify that the cease and desist order, 
consent order, or formal written agreement must require the bank or 
savings association to improve its financial condition for the 
institution to be considered in ``troubled condition'' solely as a 
result of the enforcement action. The OCC expects to inform a bank in 
writing when an enforcement action does not require action to improve 
the financial condition of the bank. The OCC's general policy is not to 
apply troubled condition status to national banks or Federal savings 
associations solely as a result of cease and desist orders, consent 
orders, or formal written agreements that do not require improvement in 
the financial condition of the bank or savings association, such as 
enforcement actions that address certain compliance-related 
deficiencies that do not affect the financial condition of the bank or 
savings association. Typically, the OCC has specifically noted in these 
actions that the bank or savings association is not in troubled 
condition as a result of the action. This proposal would update the 
definition of troubled condition in Sec.  5.51 to align with the OCC's 
current supervisory practice. The OCC notes that this practice is 
consistent with that of the Federal Reserve Board (Board) and the FDIC, 
and the proposed revision would align the OCC's regulations with the 
Board's and FDIC's regulations implementing section 914.\22\
---------------------------------------------------------------------------

    \22\ See 12 CFR 225.71(d) (Board); 12 CFR 303.101(c) (FDIC).

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

[[Page 18744]]

Capital Distributions by Federal Savings Associations (Sec.  5.55)

    Section 5.55 provides standards and procedures for capital 
distributions made by Federal savings associations. Paragraph (d)(2) 
defines ``capital'' as total capital, computed under 12 CFR part 3. The 
OCC proposes to delete this definition as unnecessary because all 
references to ``capital'' are either in relation to the defined term 
``capital distribution'' or contain an explicit reference to 
calculations under 12 CFR part 3. Additionally, the OCC proposes a new 
definition of ``control,'' to have the same meaning as in section 
10(a)(2) of the HOLA (12 U.S.C. 1467a(a)(2)), and to use this term to 
describe control relationships, rather than the current use of the term 
``subsidiary'' in Sec.  5.55.
    Current paragraph (e)(1) requires a Federal savings association to 
file an application if it is not an eligible savings association. 
Current paragraphs (e)(2) and (g)(2) require eligible savings 
associations to file a notice if certain requirements are met. 
Consistent with other proposed changes in part 5, the OCC proposes to 
change the terminology for notice to application and to make 
corresponding changes throughout Sec.  5.55. As a result, filings that 
are currently notices would be applications subject to expedited 
review. In addition, the OCC proposes to reorganize paragraphs (e) and 
(g) to clarify the procedures; however no substantive change is 
intended. The OCC also would make additional stylistic revisions to 
current paragraph (e)(4) to clarify that the notice mentioned in this 
paragraph is that of the notice filed with the Board of Governors of 
the Federal Reserve System.
    Further, the OCC proposes one substantive change to the application 
procedures. Current paragraph (e)(1)(ii) requires a Federal savings 
association to file an application if the total amount of all its 
capital distributions (including the proposed capital distribution) for 
the applicable calendar year exceeds its net income for that year to 
date plus retained net income for the preceding two years. Under 12 CFR 
5.64(c)(2), a national bank may calculate its dividends in excess of a 
single year's current net income by offsetting certain excess dividends 
against retained net income from each of the prior two years, with the 
potential to incorporate net income from up to four years prior to the 
current year when determining the maximum dividend payout possible 
without prior OCC approval. To provide additional flexibility, the OCC 
would permit a Federal savings association to conduct this calculation 
when determining whether this application requirement applies. 
Specifically, if the capital distribution is from retained earnings, a 
Federal savings association would be able to calculate the aggregate 
limitation for a capital distribution in accordance with 12 CFR 
5.64(c)(2), substituting ``capital distributions'' for ``dividends'' in 
that section.
    Paragraph (f)(2) provides that the capital distribution application 
may include a schedule proposing capital distributions over a specified 
period, not to exceed 12 months. The OCC proposes to remove this 12-
month limitation to allow a Federal savings association more 
flexibility for its distributions and to align this provision with the 
analogous national bank provision, 12 CFR 5.46(i)(1)(ii).
    Additionally, the OCC is proposing a new paragraph (g)(3) to 
clarify the appropriate OCC filing office for capital distribution 
applications and notices. In general, a Federal savings association 
would file with the appropriate OCC licensing office. However, the 
Federal savings association must submit the application to the 
appropriate OCC supervisory office if the application involves solely a 
cash dividend from retained earnings or involves a cash dividend from 
retained earnings and a concurrent cash distribution from permanent 
capital.
    Finally, the OCC is proposing to reorganize paragraph (h), which 
addresses OCC review of an application, by providing separate 
paragraphs for OCC denials and approvals. As a result, proposed 
paragraph (h)(1) would address OCC denials and include the majority of 
current paragraph (h) and proposed paragraph (h)(2) would address OCC 
approvals. In doing so, the proposal would clarify that the OCC may 
approve an application in whole or in part and that the OCC may waive 
any waivable prohibition or condition to permit a distribution. The 
proposal also would change the cross-reference in the current 
introductory text to the more appropriate paragraph (e)(1).

Inclusion of Subordinated Debt Securities and Mandatorily Redeemable 
Preferred Stock as Federal Savings Association Supplementary (tier 2) 
Capital (Sec.  5.56)

    Section 5.56 provides the requirements and procedures for a Federal 
savings association to include subordinated debt and mandatorily 
redeemable preferred stock (collectively, ``covered securities'') in 
tier 2 capital. Paragraph (b) provides the filing procedures, including 
the application and notice procedures. Under Sec.  5.56, the OCC must 
approve an application or notice before a Federal savings association 
may include covered securities as tier 2 capital. As proposed in Sec.  
5.47, the OCC proposes to make this process consistent with the rest of 
part 5 by changing the terminology from notice to application where 
appropriate throughout Sec.  5.56. The proposal also would clarify that 
a savings association may not include covered securities in tier 2 
capital until the OCC approves the application and the securities are 
issued. This change is not intended to be substantive.
    Paragraph (b)(2) requires an application and prior approval from 
the OCC for a Federal savings association to prepay covered securities 
included in tier 2 capital. Similar to the national bank requirement in 
Sec.  5.47, Sec. Sec.  5.56(b)(2)(ii) and (h) contain additional 
application requirements for and OCC review of prepayments in the form 
of a call option. As provided above in the discussion for Sec.  5.47, 
and for the same reasons, the OCC is proposing to incorporate the 
application requirements currently applicable to prepayment in the form 
of a call option to all prepayment applications. The OCC is proposing 
one additional technical change in Sec.  5.56(b)(2) to replace a 
reference to ``a tier 1 or tier 2 instrument'' to refer to ``tier 1 or 
tier 2 capital.''
    Paragraph (d)(1) contains disclosure requirements for covered 
securities. The OCC proposes to add a new paragraph (d)(1)(i)(H) to 
require the covered security to state that it may be fully subordinated 
to interests held by the U.S. government in the event that the savings 
association enters into a receivership, insolvency, liquidation, or 
similar proceeding. As discussed above regarding Sec.  5.47, a Federal 
savings association that is an advanced approaches institution must 
make this disclosure under 12 CFR 3.20(d)(1)(xi). The OCC believes that 
disclosing this information to potential investors in the covered 
security is beneficial for all Federal savings associations, even those 
that are not advanced approaches Federal savings associations or that 
do not intend to include the debt in tier 2 capital.
    In addition, the proposed rule would replace the reference to 12 
CFR part 197 in paragraphs (b)(1)(iii) and (d)(2)(i) with 12 CFR part 
16, which now applies to Federal savings associations. The OCC also is 
proposing to make certain purely stylistic changes to the rule text of 
Sec.  5.56 that are not intended to impact the substantive requirements 
applicable to Federal savings associations.

[[Page 18745]]

Pass-Through Investments by a Federal Savings Association (Sec.  5.58)

    Section 5.58 provides the licensing procedures for Federal savings 
associations making pass-through investments. Although based on 
different authority, Sec.  5.58 is largely analogous to the provisions 
in Sec.  5.36 governing national bank non-controlling investments. 
Accordingly, the OCC is proposing amendments to Sec.  5.58 similar to 
those proposed for Sec.  5.36, and for the same reasons.
    First, the OCC is proposing to amend paragraph (d), Definitions, by 
defining ``pass-through investment'' as an investment authorized under 
12 CFR 160.32(a). As discussed above for the proposed definition of 
``non-controlling investment'' in Sec.  5.36, the proposed definition 
for ``pass-through investment'' would exclude a Federal savings 
association holding interests in a trust formed for the purposes of 
securitizing assets held by the bank as part of its business or for the 
purposes of holding multiple legal titles of motor vehicles or 
equipment in conjunction with lease financing transactions. The OCC 
also is proposing to amend paragraph (d) by removing the definitions of 
``well capitalized'' and ``well managed.'' As described above, the OCC 
is proposing to define these terms in Sec.  5.3.
    Second, the proposal would expand the activities eligible for 
notice to include activities that are substantially the same as 
previously approved activities, as proposed to be defined in Sec.  5.3. 
In making this change, the proposal reorganizes paragraph (e) and makes 
conforming changes to paragraphs (e)(2) and (e)(4). Additionally, the 
OCC is considering removing the filing requirement for pass-through 
investments in enterprises engaging in activities permissible for a 
Federal savings association, as discussed above for national bank 
operating subsidiaries and non-controlling investments. The OCC would 
not remove the filing requirement if the enterprise would be a 
subsidiary of the Federal savings association for purposes of section 
18(m) of the FDIA Act (12 U.S.C. 1828(m)), which generally requires a 
Federal savings association to provide 30-days prior notice to the OCC 
before establishing or acquiring a subsidiary defined in section 
3(w)(4) of the FDI Act (12 U.S.C. 1813(w)(4)). The OCC requests comment 
on the proposed amendment to the notice provision, the alternative 
amendment described above, and any intermediate options, such as 
removing the filing requirement for activities that are substantively 
the same as previously approved activities.
    Third, the proposal would revise paragraph (f)(1) to permit a 
Federal savings association to file an application to make a pass-
through investment in an entity that does not agree to OCC supervision 
and examination. The proposal also would redesignate paragraph (f)(2) 
as paragraph (f)(3) and add a new paragraph (f)(2) providing for 
expedited review for certain applications. The qualifications for 
expedited review are equivalent to those in proposed Sec.  5.36(f).
    Fourth, the OCC is proposing to add a new paragraph (g) that would 
permit a Federal savings association to make a pass-through investment 
without a notice or application to the OCC. The standards would be 
equivalent to those in proposed Sec.  5.36(g) except that the 
enterprise must not be a subsidiary of the Federal savings association 
for purposes of section 18(m) of the FDI Act. In such a case, an 
application would be required under Sec.  5.58(f)(2).
    Finally, the OCC is proposing to amend redesignated paragraph (j) 
to provide exceptions to the rules of general applicability in the same 
manner as proposed Sec.  5.36(j).

Earnings Limitation Under 12 U.S.C. 60 (Sec.  5.64)

    Section 5.64 describes the calculations for earnings available for 
dividends under 12 U.S.C. 60. Paragraph (d) provides special rules for 
what the OCC referred to as ``surplus surplus,'' which is an amount in 
capital surplus in excess of capital stock that the national bank can 
demonstrate came from earnings in prior periods. A national bank had 
been required to retain a certain percentage of net income as capital 
surplus whenever it paid dividends. In addition, a variety of statutes 
and regulations established limits for banks based on permanent 
capital, including capital surplus, and ignored any amounts in retained 
earnings, which provided an incentive for banks to shift earnings into 
permanent capital. After Congress revised the statutes to provide more 
flexibility to include retained earnings as capital for purposes of the 
statutory limits, the OCC permitted banks to distribute these surplus 
surplus funds as dividends rather than as reductions in permanent 
capital given the surplus surplus funds' origin as earnings rather than 
paid in capital. As these statutory and regulatory changes occurred 
decades ago, national banks have not needed to create new surplus 
surplus for many years but may still incur recordkeeping burden 
associated with identifying regulatory surplus surplus within capital 
surplus. Accordingly, the OCC proposes to remove the concept of surplus 
surplus and associated procedures described in paragraph (d). However, 
removal of paragraph (d) would not prevent a bank from distributing 
amounts contained in the capital surplus accounts. A national bank may 
make an appropriate filing under 12 CFR 5.46 for a reduction in capital 
to distribute these funds.

Dividends Payable in Property Other Than Cash (Sec.  5.66)

    Section 5.66 provides procedures for payment of dividends in non-
cash property by national banks. This section currently provides that 
these dividends are equivalent to a cash dividend in an amount equal to 
the actual current value of the property, even if the bank previously 
has charged down or written off the property. Before the dividend is 
declared, the bank should show the excess of the actual value over book 
value on its books as a recovery and should declare the dividend in the 
amount of the full book value (equivalent to the actual current value) 
of the property being distributed. The OCC proposes to revise this 
section to clarify that the dividend is equivalent to a cash dividend 
in an amount equal to the actual current value of the property, 
regardless of whether the book value is higher or lower under GAAP. The 
OCC also proposes to apply this valuation methodology to all non-cash 
dividends, not just those for property that has been charged down or 
written off. Further, the amendment would provide that the bank should 
show the difference between the actual value and book value on its 
books as gain or loss, as applicable, prior to recording the non-cash 
dividend reflecting the actual value of the property. The OCC believes 
this approach better reflects the value of the property being 
distributed from the bank, particularly in cases where the non-cash 
property was recorded at historical cost under GAAP.

Fractional Shares (Sec.  5.67)

    Section 5.67 provides a number of potential arrangements that a 
national bank may adopt to avoid the issuance of fractional shares. The 
OCC proposes to simplify this section for a national bank by retaining 
only one of these options, the remittance of the cash equivalent of the 
fraction not being issued to those to whom fractional shares would 
otherwise be issued. The OCC believes this procedure is the simplest 
and is the predominant method of disposing of fractional shares today. 
Other options in the current rule include issuing

[[Page 18746]]

warrants for fractional shares or permitting shareholders to purchase 
additional fractions up to one whole share. While the OCC permitted 
these methods historically, these methods can create significant 
recordkeeping costs today when bank stock may be traded in ``round 
lots'' of 100 shares or more. Because a transaction that would result 
in the issuance of fractional shares will generally require an 
application with the OCC, proposed Sec.  5.67 maintains flexibility for 
banks by permitting the bank to propose an alternate method in the 
application for the stock issuance, which could include one of the 
options proposed to be removed from the rule.

Federal Branches and Agencies (Sec.  5.70)

    Section 5.70 provides the filing procedures for corporate 
activities and transactions involving Federal branches and agencies of 
foreign banks. Consistent with the background investigation changes 
proposed to other sections, the OCC proposes adding a new paragraph 
(d)(3) to explicitly permit the OCC to require any senior executive 
officer of a Federal branch or agency submitting a filing to submit an 
Interagency Biographical and Financial Report and legible fingerprints.

General Technical Changes

    The OCC proposes numerous technical changes throughout 12 CFR part 
5. Specifically, the proposed rule would:
     Replace the word ``shall'' with ``must,'' ``will,'' or 
other appropriate language, which is the more current rule writing 
convention for imposing an obligation and is the recommended drafting 
style of the Federal Register;
     Replace the term ``notice'' with the term ``application'' 
where prior OCC approval is required, thereby conforming the 
terminology to the licensing action provided in the provision (notices 
would continue to include informational filings to the OCC as well as 
certain transactions that the OCC has the power to disapprove, such as 
changes in control);
     Amend the expedited review provisions throughout part 5 to 
refer to the OCC removing a filing from expedited review rather than 
making a determination that the filing is not eligible for expedited 
review to accord with the language and procedure in Sec.  5.13(a)(2).
     Revise citations to the U.S. Code and the Code of Federal 
Regulations by adjusting cross-references and making citations more 
specific;
     Update and standardize references to the OCC website;
     Simplify gender references by replacing ``his or her'' 
with the neutral ``their;''
     Uniformly capitalize the word ``State,'' in conformance 
with Federal Register drafting style; and
     Replace the term ``bank'' and ``savings association'' with 
``national bank'' or ``Federal savings association,'' respectively, 
where appropriate.

III. Regulatory Analyses

A. Paperwork Reduction Act

Paperwork Reduction Act
    Certain provisions of the proposed rulemaking contain ``collection 
of information'' requirements within the meaning of the Paperwork 
Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521). In accordance with 
the requirements of the PRA, the OCC may not conduct or sponsor, and a 
respondent is not required to respond to, an information collection 
unless it displays a currently valid Office of Management and Budget 
(OMB) control number.
    The OCC reviewed the proposed rulemaking and determined that it 
revises certain information collection requirements previously cleared 
by OMB under OMB Control No. 1557-0014. The OCC has submitted the 
revised information collection to OMB for review under section 3507(d) 
of the PRA (44 U.S.C. 3507(d)) and section 1320.11 of the OMB's 
implementing regulations (5 CFR 1320).
Current Actions
    The proposed rulemaking would:
     Add new definitions to add clarity and consistency across 
Part 5. This includes proposing a single definition of well managed 
applicable throughout Part 5. 12 CFR 5.3.
     Require each proposed organizer, director, executive 
officer, or principal shareholder to submit information prescribed in 
the Interagency Biographical and Financial Report and legible 
fingerprints. This amendment merely codifies current application 
requirements and will not result in a change in burden. 12 CFR 5.20.
     Eliminate the bylaw amendment notice requirement for 
Federal savings associations that adopt without change the OCC's model 
or optional bylaws set forth in the rule. 12 CFR 5.21, 5.22.
     Require that applications to convert to a Federal savings 
association or national bank include: A list of directors and senior 
executive officers of the converting institution; and a list of 
individuals, directors, and shareholders who directly or indirectly, or 
acting in concert with one or more persons or companies, or together 
with members of their immediate family, do or will own, control, or 
hold 10 percent or more of the converting institution's stock. This 
amendment merely codifies current application requirements and will not 
result in a change in burden. 12 CFR 5.23(d)(2)(ii), 5.24(e)(2).
     Permit the OCC to require directors and senior executive 
officers of a converting institution to submit the Interagency 
Biographical and Financial Report and legible fingerprints. This 
amendment merely codifies current application requirements and will not 
result in a change in burden. 12 CFR 5.23, 5.24.
     Require that applications for national banks or Federal 
savings associations that wish to engage in the exercise of fiduciary 
powers include, if requested by the OCC, the Interagency Biographical 
and Financial Report and legible fingerprints. 12 CFR 5.26.
     Require a filer of a business combination application 
under CRA to disclose whether it has entered into and disclosed a 
covered agreement, as defined in 12 CFR 35.2. 12 CFR 
5.33(e)(1)(iii)(B).
     Remove the requirement that a disappearing national bank 
or Federal savings association consolidating or merging with another 
OCC-supervised institution provide a notice to the OCC. Sec.  5.33(g), 
(k).
     For national bank operating subsidiaries, expand the after 
the fact notice for national banks to activities that are substantially 
the same as previously approved activities that will be conducted in 
accordance with the same terms and conditions applicable to the 
previously approved activity. Expand the list of eligible entities to 
include trusts provided that the bank or operating subsidiary has the 
ability to replace the trustee at will and be the sole beneficial owner 
of the trust. 12 CFR 5.34.
     Remove the requirement for a national bank to file an 
annual report identifying its operating subsidiaries that do business 
directly with consumers and are not functionally regulated. 12 CFR 
5.34.
     For national bank non-controlling investments and Federal 
savings association pass-through investments, expand the activities 
eligible for notice to activities that are substantially the same as 
previously approved activities., 12 CFR 5.36, 5.58.
     Allow national banks and Federal savings associations to 
file an application to make a non-controlling investment or a pass-
through investment, respectively, in an enterprise that has not agreed 
to be

[[Page 18747]]

subject to OCC supervision and examination. 12 CFR 5.36(f), 5.58(f).
     Allow national banks and Federal savings associations to 
make non-controlling investments or a pass-through investments, 
respectively, without a filing if the activities of the enterprise are 
limited to those previously reported to the OCC in connection with a 
prior investment. 12 CFR 5.36, 5.58.
     For Federal savings association operating subsidiaries, 
expand the expedited approval process for Federal savings associations 
to include activities that are substantially the same as previously 
approved activities that will be conducted in accordance with the same 
terms and conditions applicable to the previously approved activity. 
Expanded the list of eligible entities to include trusts provided that 
the Federal savings association or operating subsidiary has the ability 
to replace the trustee at will and be the sole beneficial owner of the 
trust. 12 CFR 5.38.
     Permit national banks to request approval for a reduction 
in permanent capital for multiple quarters. 12 CFR 5.46.
     Regarding subordinated debt notes, allow national banks to 
omit inapplicable provisions when warranted, and require national banks 
to disclose in subordinated debt notes that the subordinated debt 
obligation may be fully subordinated to interests held by the U.S. 
government in the event that the national bank enters into a 
receivership, insolvency, liquidation, or similar proceeding. 12 CFR 
5.47.
     Revise the standard for when prior approval is required 
for a national bank's issuance of subordinated debt and for prepayment 
of any subordinated debt that is not included in tier 2 capital 12 CFR 
5.47(f).
     Require OCC approval for a material change to an existing 
subordinated debt document if the national bank would have been 
required to receive OCC approval to issue the security under Sec.  
5.47(f)(1) or to include it in tier 2 capital under Sec.  5.47(h). 12 
CFR 5.47.
     Add the position of chief risk officer to the definition 
of senior executive officer. This change would require prior OCC 
approval for the employment of an individual as a chief risk officer by 
a national bank or Federal savings association in troubled condition. 
12 CFR 5.51.
     Require a covered security (inclusion of subordinated debt 
and mandatorily redeemable preferred stock) issued by a Federal savings 
association to state that it may be fully subordinated to interests 
held by the U.S. government in the event that the savings association 
enters into a receivership, insolvency, liquidation, or similar 
proceeding. 12 CFR 5.56.
     Permit the OCC to require any senior executive officer of 
a Federal branch or agency submitting a filing to submit an Interagency 
Biographical and Financial Report and legible fingerprints. This 
amendment merely codifies current application requirements and will not 
result in a change in burden. 12 CFR 5.70.
    Title of Information Collection: Licensing Manual.
    Frequency: Event generated.
    Affected Public: Businesses or other for-profit.
    Estimated number of respondents: 1,196.
    Total estimated annual burden: 12,481 hours.
    Comments are invited on:
    a. Whether the collections of information are necessary for the 
proper performance of the agencies' functions, including whether the 
information has practical utility;
    b. The accuracy or the estimate of the burden of the information 
collections, including the validity of the methodology and assumptions 
used;
    c. Ways to enhance the quality, utility, and clarity of the 
information to be collected;
    d. Ways to minimize the burden of the information collections on 
respondents, including through the use of automated collection 
techniques or other forms of information technology; and
    e. Estimates of capital or startup costs and costs of operation, 
maintenance, and purchase of services to provide information.
    All comments will become a matter of public record. Comments on 
aspects of this notice that may affect reporting, recordkeeping, or 
disclosure requirements and burden estimates should be sent to the 
addresses listed in the ADDRESSES section of this document. A copy of 
the comments may also be submitted to the OMB desk officer by mail to 
U.S. Office of Management and Budget, 725 17th Street NW, #10235, 
Washington, DC 20503; facsimile to (202) 395-6974; or email to 
[email protected], Attention, Federal Banking Agency Desk 
Officer.

B. Regulatory Flexibility Act Analysis

    In general, the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
requires an agency, in connection with a proposed rule, to prepare an 
Initial Regulatory Flexibility Analysis describing the impact of the 
rule on small entities (defined by the SBA for purposes of the RFA to 
include commercial banks and savings institutions with total assets of 
$600 million or less and trust companies with total revenue of $41.5 
million or less). However, under section 605(b) of the RFA, this 
analysis is not required if an agency certifies that the rule would not 
have a significant economic impact on a substantial number of small 
entities and publishes its certification and a short explanatory 
statement in the Federal Register along with its rule.
    The OCC currently supervises approximately 1,196 institutions 
(commercial banks, trust companies, FSAs, and branches or agencies of 
foreign banks, collectively banks), of which 782 are small 
entities.\23\ Because the rule applies to all OCC-supervised depository 
institutions, the proposed rule would affect all small OCC-supervised 
entities, and thus a substantial number of them.
---------------------------------------------------------------------------

    \23\ Consistent with the General Principles of Affiliation 13 
CFR 121.103(a), the OCC counts the assets of affiliated financial 
institutions when determining if it should classify an institution 
as a small entity. The OCC used December 31, 2018, to determine size 
because a ``financial institution's assets are determined by 
averaging the assets reported on its four quarterly financial 
statements for the preceding year.'' See footnote 8 of the U.S. 
Small Business Administration's Table of Standards.
---------------------------------------------------------------------------

    The OCC classifies the economic impact of total costs on an OCC-
regulated entity as significant if the total costs for the entity in a 
single year are greater than 5 percent of total salaries and benefits, 
or greater than 2.5 percent of total non-interest expense. The OCC 
estimates that the monetized direct cost of this rulemaking would range 
from a low of approximately $4,560 per bank (40 hours x $114 per hour) 
\24\ to a high of approximately $18,240 per bank (160 hours x $114 per 
hour). Using the upper bound average direct cost per bank, the OCC 
finds the compliance costs would have a significant economic impact on 
no more than 20 small banks, which is not a substantial number.\25\ 
Therefore, the OCC certifies that this regulation, if adopted, would 
not have a significant economic impact on a substantial number of small 
entities supervised by the OCC. Accordingly, an Initial Regulatory 
Flexibility Analysis is not required.
---------------------------------------------------------------------------

    \24\ This per hour dollar amount is based on the U.S. Bureau of 
Labor Statistics data for wages (by industry and occupation).
    \25\ The OCC's threshold for a substantial number of small 
entities is five percent of OCC-supervised small entities, or 39 as 
of December 31, 2018.
---------------------------------------------------------------------------

C. Unfunded Mandates Reform Act of 1995

    The OCC has analyzed the proposed rule under the factors in the 
Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.). 
Under this

[[Page 18748]]

analysis, the OCC considered whether the proposed rule includes 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 (adjusted annually for inflation). The 
UMRA does not apply to regulations that incorporate requirements 
specifically set forth in law.
    Based on the OCC estimate that the monetized direct cost of this 
rulemaking would range from a low of approximately $4,560 per bank to a 
high of approximately $18,240 per bank, the OCC's overall estimate of 
the total effect of the proposed rule ranges from approximately $5.5 
million to approximately $21.8 million for the approximately 1,196 
institutions supervised by the OCC. Therefore, the OCC finds that the 
proposed rule does not trigger the UMRA cost threshold. Accordingly, 
the OCC has not prepared the written statement described in section 202 
of the UMRA.

D. Riegle Community Development and Regulatory Improvement Act of 1994

    Pursuant to section 302(a) of the Riegle Community Development and 
Regulatory Improvement Act of 1994 (12 U.S.C. 4802(a)), in determining 
the effective date and administrative compliance requirements for new 
regulations that impose additional reporting, disclosure, or other 
requirements on insured depository institutions, the OCC will consider, 
consistent with the principles of safety and soundness and the public 
interest: (1) Any administrative burdens that the proposed rule would 
place on depository institutions, including small depository 
institutions and customers of depository institutions; and (2) the 
benefits of the proposed rule. The OCC requests comment on any 
administrative burdens that the proposed rule would place on depository 
institutions, including small depository institutions, and their 
customers, and the benefits of the proposed rule that the OCC should 
consider in determining the effective date and administrative 
compliance requirements for a final rule.

List of Subjects

12 CFR Part 5

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

    For the reasons set out in the preamble, the OCC proposes to amend 
12 CFR chapter I as follows:

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

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

    Authority:  12 U.S.C. 1 et seq., 24a, 35, 93a, 214a, 215, 215a, 
215a-1, 215a-2, 215a-3, 215c, 371d, 481, 1462a, 1463, 1464, 1817(j), 
1831i, 1831u, 2901 et seq., 3101 et seq., 3907, and 5412(b)(2)(B).


Sec.  5.2  [Amended]

0
2. Amend Sec.  5.2 by:
0
a. In paragraph (b), removing the word ``filings,'' and adding in its 
place the phrase ``filings as it deems necessary, for example,'' and 
removing the word ``applicant'' and adding in its place the word 
``filer''; and
0
b. In paragraph (c), removing the phrase ``on the OCC's internet web 
page''.
0
3. Revise Sec.  5.3 to read as follows.


Sec.  5.3  Definitions.

    As used in this part:
    Application means a submission requesting OCC approval to engage in 
various corporate activities and transactions.
    Appropriate Federal banking agency has the meaning set forth in 
section 3(q) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(q).
    Appropriate OCC licensing office means the OCC office that is 
responsible for processing applications or notices to engage in various 
corporate activities or transactions, as described at www.occ.gov.
    Appropriate OCC supervisory office means the OCC office that is 
responsible for the supervision of a national bank or Federal savings 
association, as described in subpart A of 12 CFR part 4.
    Capital and surplus means:
    (1) For qualifying community banking organizations that have 
elected to use the community bank leverage ratio framework, as set 
forth under the OCC's Capital Adequacy Standards at part 3 of this 
chapter:
    (i) A qualifying community banking organization's tier 1 capital, 
as used under Sec.  3.12 of this chapter; plus
    (ii) A qualifying community banking organization's allowance for 
loan and lease losses or adjusted allowances for credit losses, as 
applicable, as reported in the national bank's or Federal savings 
association's Consolidated Report of Condition and Income (Call 
Report); or
    (2) For all other national banks and Federal savings associations:
    (i) A national bank's or Federal savings association's tier 1 and 
tier 2 capital calculated under the OCC's risk-based capital standards 
set forth in part 3 of this chapter, as applicable, as reported in the 
bank's or savings association's Call Report, respectively; plus
    (ii) The balance of the national bank's or Federal savings 
association's allowance for loan and lease losses or adjusted 
allowances for credit losses, as applicable, not included in the 
institution's tier 2 capital, as reported in the Call Report.
    Depository institution means any bank or savings association.
    Eligible bank or eligible savings association means a national bank 
or Federal savings association that:
    (1) Is well capitalized as defined in Sec.  5.3;
    (2) Has a composite rating of 1 or 2 under the Uniform Financial 
Institutions Rating System (CAMELS);
    (3) Has a Community Reinvestment Act (CRA), 12 U.S.C. 2901 et seq., 
rating of ``Outstanding'' or ``Satisfactory,'' if applicable;
    (4) Has a consumer compliance rating of 1 or 2 under the Uniform 
Interagency Consumer Compliance Rating System; and
    (5) Is not subject to a cease and desist order, consent order, 
formal written agreement, or Prompt Corrective Action directive (see 12 
CFR part 6, subpart B) or, if subject to any such order, agreement, or 
directive, is informed in writing by the OCC that the bank or savings 
association may be treated as an ``eligible bank or eligible savings 
association'' for purposes of this part.
    Eligible depository institution means:
    (1) With respect to a national bank, a State bank or a Federal or 
State savings association that meets the criteria for an ``eligible 
bank or eligible savings association'' under Sec.  5.3 and is FDIC-
insured; and
    (2) With respect to a Federal savings association, a State or 
national bank or a State savings association that meets the criteria 
for an ``eligible bank or eligible savings association'' under Sec.  
5.3 and is FDIC-insured.
    FDIC means the Federal Deposit Insurance Corporation.
    Filer means a person or entity that submits a notice or application 
to the OCC under this part.
    Filing means an application or notice submitted to the OCC under 
this part.
    GAAP means generally accepted accounting principles as used in the 
United States.
    MSA means metropolitan statistical area as defined by the Director 
of the Office of Management and Budget.
    Nonconforming assets and nonconforming activities mean assets or 
activities, respectively, that are

[[Page 18749]]

impermissible for national banks or Federal savings associations to 
hold or conduct, as applicable, or, if permissible, are held or 
conducted in a manner that exceeds limits applicable to national banks 
or Federal savings associations, as applicable. Assets include 
investments in subsidiaries or other entities.
    Notice, in general, means a submission notifying the OCC that a 
national bank or Federal savings association intends to engage in or 
has commenced certain corporate activities or transactions. The 
specific meaning of notice depends on the context of the rule in which 
it is used and may provide the OCC with authority to disapprove the 
notice or may be informational requiring no official OCC action.
    OTS means the former Office of Thrift Supervision.
    Previously approved activity means:
    (1) In the case of a national bank, an activity approved in 
published OCC precedent for a national bank, an operating subsidiary of 
a national bank, or a non-controlling investment of a national bank; 
and
    (2) In the case of a Federal savings association, an activity 
approved in published OCC or OTS precedent for a Federal savings 
association, an operating subsidiary of a Federal savings association, 
or a pass-through investment of a Federal savings association.
    Principal city means an area designated as a ``principal city'' by 
the Office of Management and Budget.
    Short-distance relocation means moving the premises of a branch or 
main office of a national bank or a branch or home office of a Federal 
savings association within a:
    (1) One thousand foot-radius of the site if the branch, main 
office, or home office is located within a principal city of an MSA;
    (2) One-mile radius of the site if the branch, main office, or home 
office is not located within a principal city, but is located within an 
MSA; or
    (3) Two-mile radius of the site if the branch, main office, or home 
office is not located within an MSA.
    Well capitalized means:
    (1) In the case of a national bank or Federal savings association, 
the capital level described in 12 CFR 6.4;
    (2) In the case of a Federal branch or agency, the capital level 
described in 12 CFR 4.7(b)(1)(iii); or
    (3) In the case of another depository institution, the capital 
level designated as ``well capitalized'' by the institution's 
appropriate Federal banking agency pursuant to section 38 of the 
Federal Deposit Insurance Act (12 U.S.C. 1831o).
    Well managed means:
    (1) In the case of a national bank or Federal savings association:
    (i) Unless otherwise determined in writing by the OCC, the national 
bank or Federal savings association has received a composite rating of 
1 or 2 under the Uniform Financial Institutions Rating System in 
connection with its most recent examination, and at least a rating of 2 
for management, if such a rating is given; or
    (ii) In the case of a national bank or Federal savings association 
that has not been examined by the OCC, the existence and use of 
managerial resources that the OCC determines are satisfactory.
    (2) In the case of a Federal branch or agency of a foreign bank:
    (i) Unless determined otherwise in writing by the OCC, the Federal 
branch or agency has received a composite ROCA supervisory rating 
(which rates risk management, operational controls, compliance, and 
asset quality) of 1 or 2 at its most recent examination, and at least a 
rating of 2 for risk management, if such a rating is given; or
    (ii) In the case of a Federal branch or agency that has not been 
examined by the OCC, the existence and use of managerial resources that 
the OCC determines are satisfactory.
    (3) In the case of another depository institution:
    (i) Unless otherwise determined in writing by the appropriate 
Federal banking agency, the institution has received a composite rating 
of 1 or 2 under the Uniform Financial Institutions Rating System (or an 
equivalent rating under an equivalent rating system) in connection with 
the most recent examination or subsequent review of the depository 
institution and, at least a rating of 2 for management, if such a 
rating is given; or
    (ii) In the case of another depository institution that has not 
been examined by its appropriate Federal banking agency, the existence 
and use of managerial resources that the appropriate Federal banking 
agency determines are satisfactory.
0
4. Amend Sec.  5.4 by:
0
a. In paragraph (a), removing the word ``shall'' and adding in its 
place the word ``must'';
0
 b. In paragraph (b), removing the phrase ``on the OCC's internet web 
page'';
0
c. In paragraph (c), removing the word ``applicant'' each time that it 
appears and adding in its place the word ``filer'';
0
d. In paragraphs (d) and (e), removing the phrase ``an applicant'' each 
time that it appears and adding in its place the phrase ``a filer'';
0
e. In paragraph (d), removing the phrase ``the OCC's internet web page 
at'';
0
f. Revising paragraph (f); and
0
g. Adding paragraph (g).
    The addition and revision read as follows:


Sec.  5.4  Filing required.

* * * * *
    (f) Prefiling meeting. Before submitting a filing to the OCC, a 
potential filer is encouraged to contact the appropriate OCC licensing 
office to determine the need for a prefiling meeting. The OCC decides 
whether to require a prefiling meeting on a case-by-case basis. 
Submission of a draft business plan or other relevant information 
before any prefiling meeting may expedite the filing review process. A 
potential filer considering a novel, complex, or unique proposal is 
encouraged to contact the appropriate OCC licensing office to schedule 
a prefiling meeting early in the development of its proposal for the 
early identification and consideration of policy issues. Information on 
model business plans can be found in the Comptroller's Licensing 
Manual.
    (g) Certification. A filer must certify that any filing or 
supporting material submitted to the OCC contains no material 
misrepresentations or omissions. The OCC may review and verify any 
information filed in connection with a notice or an application. Any 
person responsible for any material misrepresentation or omission in a 
filing or supporting materials may be subject to enforcement action and 
other penalties, including criminal penalties provided in 18 U.S.C. 
1001.
0
5. Amend Sec.  5.5 by revising paragraph (a) to read as follows:


Sec.  5.5  Filing fees.

    (a) Procedure. A filer must submit the appropriate filing fee, if 
any, in connection with its filing. Filing fees must be paid by check 
payable to the OCC or by other means acceptable to the OCC. Additional 
information on filing fees, including where to file, can be found in 
the Comptroller's Licensing Manual. The OCC generally does not refund 
the filing fees.
* * * * *
0
6. Amend Sec.  5.7 by redesignating paragraph (b) as paragraph (c) and 
adding a new paragraph (b) to read as follows:

[[Page 18750]]

Sec.  5.7  Investigations.

* * * * *
    (b) Fingerprints. For certain filings, the OCC collects 
fingerprints for submission to the Federal Bureau of Investigation for 
a national criminal history background check.
* * * * *


Sec.  5.8  [Amended]

0
7. Amend Sec.  5.8 by:
0
a. In paragraph (a), removing the phrase ``An applicant shall publish'' 
and adding in its place the phrase ``A filer must publish'' and 
removing the phrase ``the applicant proposes'' and adding in its place 
the phrase ``the filer proposes'';
0
b. In paragraphs (a) and (b), removing the word ``shall'' and adding in 
its place the word ``must'';
0
c. In paragraphs (b) and (g)(1), removing the word ``applicant'' and 
adding in its place the word ``filer'';
0
d. In paragraphs (c) and (d), removing the phrase ``applicant shall'' 
and adding in its place the phrase ``filer must''; and
0
e. In paragraph (e) and paragraph (g) introductory text, removing the 
phrase ``an applicant'' and adding in its place the phrase ``a filer''.


Sec.  5.9  [Amended]

0
8. Amend Sec.  5.9 by:
0
a. In paragraph (b), in the second sentence, removing the word 
``Applicants'' and adding in its place the word ``Filers''; and
0
b. In paragraph (c), removing the word ``applicant'' and adding in its 
place the word ``filer''.


Sec.  5.10  [Amended]

0
9. Amend Sec.  5.10 by:
0
a. In paragraphs (b)(2)(i) and (b)(3), removing the word ``applicant'' 
and adding in its place the word ``filer'';
0
b. In paragraph (b)(2)(ii), removing the word ``application'' and 
adding in its place the word ``filing''; and
0
c. In paragraph (b)(3), revising the paragraph heading by removing the 
word ``Applicant'' and adding in its place the word ``Filer''.


Sec.  5.11  [Amended]

0
10. Amend Sec.  5.11 by:
0
a. In paragraphs (a), (e), and (g)(2), removing the word ``shall'' each 
time it appears and adding in its place the word ``must'';
0
b. In paragraphs (a), (d)(1), (e), (g)(1), and (g)(2), removing the 
word ``applicant'' each time it appears and adding in its place the 
word ``filer'';
0
c. In paragraph (c), removing the word ``shall'' and adding in its 
place the word ``will'';
0
d. In paragraphs (e) and (f), removing the phrase ``his or her'' and 
adding in its place the word ``their'';
0
e. In paragraph (h), removing the word ``applicant's'' and adding in 
its place the word ``filer's''; and
0
f. In paragraph (i)(1) removing the phrase ``an application'' and 
adding in its place the phrase ``a filing'' and removing the phrase 
``the application'' and adding in its place the phrase ``the filing''; 
and
0
g. In paragraph (i)(2), removing the phrase ``an applicant'' and adding 
in its place the phrase ``a filer''.


Sec.  5.12  [Amended]

0
11. Amend Sec.  5.12 by removing the phrase ``an application'' and 
adding in its place the phrase ``a filing''.
0
12. Amend Sec.  5.13 by:
0
a. In paragraph (a) introductory text and paragraphs (b)(1), (b)(3), 
(d), and (g), removing the phrase ``the applicant'' each time that it 
appears and adding in its place the phrase ``the filer'';
0
b. Revising paragraph (a)(2) introductory text and paragraphs (a)(2)(i) 
and (ii);
0
c. In paragraphs (c) and (f), removing the phrase ``an applicant'' and 
adding in its place the phrase ``a filer'';
0
d. In paragraph (g), removing the word ``applicant's'' and adding in 
its place the word filer's'';
0
e. Revising paragraph (h); and
0
f. Adding paragraph (i).
    The revisions and addition read as follows:


Sec.  5.13  Decisions.

    (a) * * *
    (2) Expedited review. The OCC grants qualifying national banks and 
Federal savings associations expedited review within a specified time 
after filing or commencement of the public comment period for certain 
filings.
    (i) The OCC may extend the expedited review period or remove a 
filing from expedited review procedures if it concludes that the 
filing, or an adverse comment regarding the filing, presents a 
significant supervisory, CRA (if applicable), or compliance concern or 
raises a significant legal or policy issue requiring additional OCC 
review. The OCC will provide the filer with a written explanation if it 
decides not to process an application from a qualifying national bank 
or Federal savings association under expedited review pursuant to this 
paragraph.
    (ii) Adverse comments that the OCC determines do not raise a 
significant supervisory, CRA (if applicable), or compliance concern or 
a significant legal or policy issue; are frivolous, non-substantive, or 
filed primarily as a means of delaying action on the filing; or raise a 
CRA concern that has been satisfactorily resolved do not affect the 
OCC's decision under paragraph (a)(2)(i) of this section. The OCC 
considers a comment to be non-substantive if it is (1) a generalized 
opinion that a filing should or should not be approved or (2) a 
conclusory statement, lacking factual or analytical support. The OCC 
considers a CRA concern to have been satisfactorily resolved if the OCC 
previously reviewed (e.g., in an examination, other supervisory 
activity, or a prior filing) a concern presenting substantially the 
same issue in substantially the same assessment area during 
substantially the same time, and the OCC determines that the concern 
would not warrant denial or imposition of a condition on approval of 
the application.
* * * * *
    (h) Nullifying a decision. The OCC may nullify any decision on a 
filing either prior to or after consummation of the transaction if:
    (1) The OCC discovers a material misrepresentation or omission in 
any information provided to the OCC in the filing or supporting 
materials;
    (2) The decision is contrary to law, regulation, or OCC policy 
thereunder; or
    (3) The decision was granted due to clerical or administrative 
error, or a material mistake of law or fact.
    (i) Modifying, Suspending, or Rescinding a Decision. The OCC may 
modify, suspend, or rescind a decision on a filing if a material change 
in the information or circumstance on which the OCC relied occurs prior 
to the date of the consummation of the transaction to which the 
decision pertains.
0
13. Amend Sec.  5.20 by:
0
a. In paragraph (b), paragraph (e)(1)(iii) introductory text, and 
paragraphs (h)(1)(i), (h)(2), (h)(3), (h)(5)(i), (h)(5)(ii), 
(h)(5)(iii), (h)(7), (i)(2), (i)(3), (i)(5)(ii)(A), (i)(5)(ii)(B), 
(i)(5)(iii), (i)(5)(iv), (k)(1), (l)(1), and (l)(2), removing the word 
``shall'' each time that it appears and adding in its place the word 
``must'';
0
b. In paragraph (d)(2), removing the phrase ``section 2'' and adding in 
its place ``section 2(a)(2)'' and removing the phrase ``section 10'' 
and adding in its place ``section 10(a)(2)'';
0
c. Redesignating paragraphs (d)(7) and (8) as paragraphs (d)(8) and 
(9), respectively, and adding new paragraphs (d)(7) and (d)(10);
0
d. In newly redesignated paragraph (d)(8), removing the word 
``persons'' and adding in its place the word ``individuals''; and
0
e. In newly redesignated paragraph (d)(9), removing the phrase ``an

[[Page 18751]]

applicant'' and adding in its place the phrase ``a filer'';
0
f. In paragraph (e)(1)(ii)(A), removing the word ``applicants'' and 
adding in its place the word ``filers''; and
0
g. In paragraph (e)(3), removing the phrase ``Federal Deposit Insurance 
Corporation (FDIC)'' and adding in its place the word ``FDIC'';
0
h. In paragraph (g)(4) removing the word ``shall'' and adding in its 
place the word ``may'' and removing the phrase ``withdrawal of 
preliminary approval'' and adding in its place the phrase 
``nullification or rescission of a preliminary approval'' in paragraph 
(g)(4)(ii);
0
i. In paragraphs (i)(1), (j)(1), and (j)(2), removing the word 
``applicant'' and adding in its place the word ``filer'';
0
j. Redesignating paragraphs (i)(3) through (5) as paragraphs (i)(4) 
through (i)(6) and adding a new paragraph (i)(3);
0
k. In newly redesignated paragraph (i)(5), removing the phrase 
``spokesperson and other interested persons'' and adding in its place 
the phrase ``contact person and other relevant parties''; and
0
l. In newly redesignated paragraph (i)(6)(iii), removing the phrase 
``or part 197'';
0
m. Revising paragraph (j)(1); and
    n. In paragraphs (k)(2) and (l)(1), removing the phrase ``An 
applicant'' each time that it appears and adding in its place the 
phrase ``A filer''.
    The additions and revision read as follows:


Sec.  5.20  Organizing a national bank or Federal savings association.

* * * * *
    (d) * * *
    (7) Organizer means a member of the organizing group.
* * * * *
    (10) Principal shareholder means a person who directly or 
indirectly or acting in concert with one or more persons or companies, 
or together with members of their immediate family, will own, control, 
or hold 10 percent or more of the voting stock of the proposed national 
bank or Federal savings association.
* * * * *
    (i) * * *
    (3) Biographical and financial reports--(i) Each proposed 
organizer, director, executive officer, or principal shareholder must 
submit to the appropriate OCC licensing office:
    (A) The information prescribed in the Interagency Biographical and 
Financial Report, available at www.occ.gov; and
    (B) Legible fingerprints.
    (ii) The OCC may require additional information about any proposed 
organizer, director, executive officer, or principal shareholder, if 
appropriate. The OCC may waive any of the information requirements of 
this paragraph if the OCC determines that it is in the public interest.
* * * * *
    (j) * * *
    (1) Notifies the filer prior to that date that the filing has been 
removed from expedited review, or the expedited review process is 
extended, under Sec.  5.13(a)(2); or
* * * * *
0
14. Amend Sec.  5.21 by:
0
a. In paragraph (d), removing the word ``shall'' and adding in its 
place the word ``do'';
0
b. In paragraph (e) introductory text, removing the word ``shall'' and 
adding in its place the word ``must'' in the first and second sentence; 
and removing the word ``shall'' and adding in its place the word 
``will'' in the last sentence;
0
c. In the form ``Federal Mutual Charter'' following paragraph (e):
0
i. Removing the phrase ``shall be'' and adding in its place the word 
``is'' each time it appears in Section 2 and Section 7;
0
ii. In Section 6:
    A. Removing the phrase ``shall be permitted'' and adding in its 
place the phrase ``is permitted'';
    B. Removing the phrase ``shall cast'' and adding in its place the 
phrase ``may cast''; and
    C. Removing the phrase ``accounts shall be'' and adding in its 
place the phrase ``accounts are'';
0
iii. Removing the phrase ``shall not'' and adding in its place the 
phrase ``may not'' in Section 7; and
0
iv. Removing the word ``shall'' and adding in its place the word 
``will'' each time it appears in Section 8 and Section 9;
0
d. Revising paragraph (f)(2) and adding paragraph (f)(3);
0
e. Revising paragraph (g) introductory text;
0
f. In paragraph (g)(1):
0
i. Removing the phrase ``shall have the'' and adding in its place the 
phrase ``has the'';
0
ii. Removing the phrase ``shall require'' and adding in its place the 
word ``requires'';
0
iii. Removing the phrase ``raise capital, which shall be unlimited,'' 
and adding in its place the phrase ``raise unlimited capital'';
0
iv. Removing the phrase ``accounts as shall'' and adding in its place 
the phrase ``accounts as will'';
0
v. Removing the phrase ``shall have such'' and adding in its place the 
phrase ``will have such''; and
0
vi. Removing the phrase ``shall have power'' and adding in its place 
the phrase ``has the power'';
0
g. Revising paragraph (i); and
0
h. Revising paragraph (j):
    The revisions and addition read as follows.


Sec.  5.21  Federal mutual savings association charter and bylaws.

* * * * *
    (f) * * *
    (2) Form of filing--(i) Application requirement. Except as provided 
in paragraph (f)(2)(ii) of this section, a Federal mutual savings 
association must file the proposed charter amendment with, and obtain 
the prior approval of, the OCC.
    (A) Expedited review. Except as provided in paragraph (f)(2)(i)(B) 
of this section, the charter amendment will be deemed approved as of 
the 30th day after filing, unless the OCC notifies the filer that the 
amendment is denied or that the amendment contains procedures of the 
type described in paragraph (f)(2)(i)(B) of this section and is not 
eligible for expedited review, provided the association follows the 
requirements of its charter in adopting the amendment.
    (B) Amendments exempted from expedited review. Expedited review is 
not available for a charter amendment that would render more difficult 
or discourage a merger, proxy contest, the assumption of control by a 
mutual account holder of the association, or the removal of incumbent 
management; or involve a significant issue of law or policy.
    (ii) Notice requirement. No application under paragraph (f)(2)(i) 
of this section is required if the text of the amendment is contained 
within paragraphs (e) or (g) of this section. In such case, the Federal 
mutual savings association must submit a notice with the charter 
amendment to the OCC within 30 days after adoption.
    (3) Effectiveness. A charter amendment is effective after approval 
by the OCC, if required pursuant to paragraph (f)(2) of this section, 
and adoption by the association, provided the association follows the 
requirements of its charter in adopting the amendment.
    (g) Optional charter amendments. The following charter amendments 
are subject to the notice requirement in paragraph (f)(2)(ii) of this 
section if adopted without change:
* * * * *
    (i) Availability of chartering documents. A Federal mutual savings 
association must make available a true copy of its charter and bylaws 
and all

[[Page 18752]]

amendments thereto to accountholders at all times in each office of the 
savings association, and must upon request deliver to any 
accountholders a copy of such charter and bylaws or amendments thereto.
    (j) Bylaws for Federal mutual savings associations--(1) In general. 
A Federal mutual savings association must operate under bylaws that 
contain provisions that comply with all requirements specified by the 
OCC in this paragraph and that are not otherwise inconsistent with the 
provisions of this paragraph; the association's charter; and all other 
applicable laws, rules, and regulations provided that, a bylaw 
provision inconsistent with the provisions of this paragraph may be 
adopted with the approval of the OCC. Bylaws may be adopted, amended or 
repealed by a majority of the votes cast by the members at a legal 
meeting or a majority of the association's board of directors. The 
bylaws for a Federal mutual savings bank must substitute the term 
``savings bank'' for ``association''. The term ``trustee'' may be 
substituted for the term ``director''.
    (2) Requirements. The following requirements are applicable to 
Federal mutual savings associations:
    (i) Annual meetings of members. (A) An association must provide for 
and conduct an annual meeting of its members for the election of 
directors and at which any other business of the association may be 
conducted. Such meeting must be held at any convenient place the board 
of directors may designate, and at a date and time within 150 days 
after the end of the association's fiscal year.
    (B) At each annual meeting, the officers must make a full report of 
the financial condition of the association and of its progress for the 
preceding year and must outline a program for the succeeding year.
    (ii) Special meetings of members. Procedures for calling any 
special meeting of the members and for conducting such a meeting must 
be set forth in the bylaws. The board of directors of the association 
or the holders of 10 percent or more of the voting capital must be 
entitled to call a special meeting. For purposes of this paragraph, 
``voting capital'' means FDIC-insured deposits as of the voting record 
date.
    (iii) Notice of meeting of members. Notice specifying the date, 
time, and place of the annual or any special meeting and adequately 
describing any business to be conducted must be published for two 
successive weeks immediately prior to the week in which such meeting 
will convene in a newspaper of general circulation in the city or 
county in which the principal place of business of the association is 
located, or mailed postage prepaid at least 15 days and not more than 
45 days prior to the date on which such meeting will convene to each of 
its members of record. A similar notice must be posted in a conspicuous 
place in each of the offices of the association during the 14 days 
immediately preceding the date on which such meeting will convene. The 
bylaws may permit a member to waive in writing any right to receive 
personal delivery of the notice. When any meeting is adjourned for 30 
days or more, notice of the adjournment and reconvening of the meeting 
must be given as in the case of the original meeting.
    (iv) Fixing of record date. The bylaws must provide for the fixing 
of a record date and a method for determining from the books of the 
association the members entitled to vote. Such date may not more than 
60 days nor fewer than 10 days prior to the date on which the action, 
requiring such determination of members, is to be taken. The same 
determination must apply to any adjourned meeting.
    (v) Member quorum. Any number of members present and voting, 
represented in person or by proxy, at a regular or special meeting of 
the members constitutes a quorum. A majority of all votes cast at any 
meeting of the members determines any question, unless otherwise 
required by regulation. At any adjourned meeting, any business may be 
transacted that might have been transacted at the meeting as originally 
called. Members present at a duly constituted meeting may continue to 
transact business until adjournment.
    (vi) Voting by proxy. Procedures must be established for voting at 
any annual or special meeting of the members by proxy pursuant to the 
rules and regulations of the OCC. Proxies may be given telephonically 
or electronically as long as the holder uses a procedure for verifying 
the identity of the member. All proxies with a term greater than eleven 
months or solicited at the expense of the association must run to the 
board of directors as a whole, or to a committee appointed by a 
majority of such board.
    (vii) Communications between members. Provisions relating to 
communications between members must be consistent with Sec.  144.8 of 
this chapter. No member, however, may have the right to inspect or copy 
any portion of any books or records of a Federal mutual savings 
association containing:
    (A) A list of depositors in or borrowers from such association;
    (B) Their addresses;
    (C) Individual deposit or loan balances or records; or
    (D) Any data from which such information could be reasonably 
constructed.
    (viii) Number of directors, membership. The bylaws must set forth a 
specific number of directors, not a range. The number of directors may 
not be fewer than five nor more than fifteen, unless a higher or lower 
number has been authorized by the OTS prior to July 21, 2011 or by the 
OCC. Each director of the association must be a member of the 
association. Directors may be elected for periods of one to three years 
and until their successors are elected and qualified, but if a 
staggered board is chosen, provision must be made for the election of 
approximately one-third or one-half of the board each year, as 
appropriate. State-chartered savings banks converting to Federal 
savings banks may include alternative provisions for the election and 
term of office of directors so long as such provisions are authorized 
by the OCC, and provide for compliance with the standard provisions of 
this paragraph no later than six years after the conversion to a 
Federal savings association.
    (ix) Meetings of the board. The board of directors determines the 
place, frequency, time, procedure for notice, which must be at least 24 
hours unless waived by the directors, and waiver of notice for all 
regular and special meetings. The board also may permit telephonic or 
electronic participation at meetings. The bylaws may provide for action 
to be taken without a meeting if unanimous written consent is obtained 
for such action. A majority of the authorized directors constitutes a 
quorum for the transaction of business. The act of a majority of the 
directors present at any meeting at which there is a quorum will be the 
act of the board.
    (x) Officers, employees and agents. (A) The bylaws must contain 
provisions regarding the officers of the association, their functions, 
duties, and powers. The officers of the association must consist of a 
president, one or more vice presidents, a secretary, and a treasurer or 
comptroller, each of whom must be elected annually by the board of 
directors. Such other officers and assistant officers and agents as may 
be deemed necessary may be elected or appointed by the board of 
directors or chosen in such other manner as may be prescribed in the 
bylaws. Any two or more offices may be held by the same person, except 
the offices of president and secretary.

[[Page 18753]]

    (B) Any officer may be removed by the board of directors with or 
without cause, but such removal, other than for cause, must be without 
prejudice to the contractual rights, if any, of the person so removed. 
Termination for cause, for purposes of this section and Sec.  5.22, 
includes termination because of the person's personal dishonesty; 
incompetence; willful misconduct; breach of fiduciary duty involving 
personal profit; intentional failure to perform stated duties; willful 
violation of any law, rule, or regulation (other than traffic 
violations or similar offenses) or final cease and desist order; or 
material breach of any provision of an employment contract.
    (xi) Vacancies, resignation or removal of directors. In the event 
of a vacancy on the board, the board of directors may, by their 
affirmative vote, fill such vacancy, even if the remaining directors 
constitute less than a quorum. A director elected to fill a vacancy may 
serve only until the next election of directors by the members. The 
bylaws must set out the procedure for the resignation of a director. 
Directors may be removed only for cause, as defined in paragraph 
(j)(2)(x)(B) of this section, by a vote of the holders of a majority of 
the shares then entitled to vote at an election of directors.
    (xii) Powers of the board. The board of directors has the power to 
exercise any and all of the powers of the association not expressly 
reserved by the charter to the members.
    (xiii) Nominations for directors. The bylaws must provide that 
nominations for directors may be made at the annual meeting by any 
member and must be voted upon, except, however, the bylaws may require 
that nominations by a member must be submitted to the secretary and 
then prominently posted in the principal place of business at least 10 
days prior to the date of the annual meeting. However, if such 
provision is made for prior submission of nominations by a member, then 
the bylaws must provide for a nominating committee, which, except in 
the case of a nominee substituted as a result of death or other 
incapacity, must submit nominations to the secretary and have such 
nominations similarly posted at least 15 days prior to the date of the 
annual meeting.
    (xiv) New business. The bylaws must provide procedures for the 
introduction of new business at the annual meeting.
    (xv) Amendment. Bylaws may include any provision for their 
amendment that would be consistent with applicable law, rules, and 
regulations and adequately addresses its subject and purpose.
    (A) Amendments will be effective:
    (1) After approval by a majority vote of the authorized board, or 
by a majority of the vote cast by the members of the association at a 
legal meeting; and
    (2) After receipt of any applicable regulatory approval.
    (B) When an association fails to meet its quorum requirement, 
solely due to vacancies on the board, the bylaws may be amended by an 
affirmative vote of a majority of the sitting board.
    (xvi) Miscellaneous. The bylaws also may address any other subjects 
necessary or appropriate for effective operation of the association.
    (3) Form of filing--(i) Application requirement. Except as provided 
in paragraphs (j)(3)(ii) or (j)(3)(iii) of this section, a Federal 
mutual savings association must file the proposed bylaw amendment with, 
and obtain the prior approval of, the OCC.
    (A) Expedited review. Except as provided in paragraph (j)(3)(i)(B) 
of this section, the bylaw amendment will be deemed approved as of the 
30th day after filing, unless the OCC notifies the filer that the bylaw 
amendment is denied or that the amendment contains procedures of the 
type described in paragraph (f)(3)(i)(B) of this section and is not 
eligible for expedited review, provided the association follows the 
requirements of its charter and bylaws in adopting the amendment.
    (B) Amendments not subject to expedited review. A bylaw amendment 
is not subject to expedited review if it would render more difficult or 
discourage a merger, proxy contest, the assumption of control by a 
mutual account holder of the association, or the removal of incumbent 
management; involve a significant issue of law or policy, including 
indemnification, conflicts of interest, and limitations on director or 
officer liability; or be inconsistent with the requirements of this 
paragraph or with applicable laws, rules, regulations, or the 
association's charter.
    (ii) Notice Requirement. A Federal mutual association may elect to 
follow the corporate governance procedures of the laws of the State 
where the home office of the institution is located, provided that such 
procedures are not inconsistent with applicable Federal statutes, 
regulations, and safety and soundness, and such procedures are not of 
the type described in paragraph (j)(3)(i)(B) of this section. If this 
election is selected, a Federal mutual association must designate in 
its bylaws the provision or provisions from the body of law selected 
for its corporate governance procedures, and must submit a notice 
containing a copy of such bylaws, within 30 days after adoption. The 
notice must indicate, where not obvious, why the bylaw provisions meet 
the requirements stated in paragraph (j)(3)(i)(B) of this section.
    (iii) No filing required. No filing is required for purposes of 
paragraph (j)(3) of this section if a bylaw amendment adopts the 
language of the OCC's model or optional bylaws without change.
    (4) Effectiveness. A bylaw amendment is effective after approval by 
the OCC, if required, and adoption by the association, provided that 
the association follows the requirements of its charter and bylaws in 
adopting the amendment.
    (5) Effect of subsequent charter or bylaw change. Notwithstanding 
any subsequent change to its charter or bylaws, the authority of a 
Federal mutual savings association to engage in any transaction is 
determined only by the association's charter or bylaws then in effect.
0
15. Amend Sec.  5.22 by:
0
 a. In paragraph (d), removing the word ``shall'' and adding in its 
place the word ``do'';
0
b. In paragraph (e) introductory text removing the word ``shall'' each 
time it appears and adding in its place the word ``must'' and removing 
``Sec.  192.3(c)(13)'' and adding in its place ``Sec.  192.485'';
0
c. In the form ``Federal Stock Charter'' following paragraph (e):
0
i. In Section 2, removing the phrase ``shall be'' and adding in its 
place the word ``is'';
0
ii. Revising Section 5;
0
iii. In Section 6, removing the phrase ``shall not be entitled'' and 
adding in its place the phrase ``are not entitled'';
0
iv. In Section 7, removing the phrase ``shall be'' and adding in its 
place the phrase ``will be'' and removing the phrase ``shall not be'' 
and adding in its place the phrase ``may not be''; and
0
v. In Section 8, removing the phrase ``shall be'' and adding in its 
place ``may be'';
0
d. Revising paragraph (f)(2) and adding paragraph (f)(3);
0
e. Revising paragraph (g) introductory text and paragraph (g)(4);
0
f. Removing the word ``shall'' each time it appears and adding in its 
place the word ``will'' in paragraph (g)(6); and
0
g. Revising paragraph (g)(7);
0
h. In paragraph (h):
0
i. Removing the phrase ``shall file'' and adding in its place the word 
``files'';
0
ii. Removing the phrase ``for approval'' and adding in its place the 
phrase ``pursuant to paragraph (f)(2)(i) of this section'';
0
iii. Removing the word ``state'' and adding in its place the word 
``State''; and

[[Page 18754]]

0
iv. Removing the phrase ``shall not'' and adding in its place the 
phrase ``may not'';
0
i. In paragraph (i), removing the phrase ``under (c) of this part'' and 
adding in its place ``in the form ``Federal Stock Charter'' in 
paragraph (c) of this section'';
0
j. Revising paragraphs (j)(2) and (3);
0
k. In paragraph (j)(4), removing the phrase ``shall be'' and adding in 
its place the word ``is'':
0
l. Revising paragraphs (k)(1) through (7);
0
m. Revising paragraphs (l)(1) through (10);
0
n. In paragraph (m)(1) removing the phrase ``shall be a president'' and 
adding in its place the phrase ``must consist of a president''; 
removing the phrase ``shall be elected'' and adding in its place the 
phrase ``must be elected''; and removing the word ``chairman'' and 
adding in its place the word ``chair''; and
0
o. In paragraph (m)(2) removing the phrase ``shall be'' and adding in 
its place the phrase ``will be'' and removing the phrase ``shall 
conform'' and adding in its place the phrase ``must conform''; and
0
p. Revising paragraph (n).
    The addition and revisions read as follows.


Sec.  5.22  Federal stock savings association charter and bylaws.

* * * * *
    (e) * * *

Federal Stock Charter

* * * * *
    Section 5. Capital stock. The total number of shares of all classes 
of the capital stock that the association has the authority to issue is 
__, all of which is common stock of par [or if no par is specified then 
shares have a stated] value of __ per share. The shares may be issued 
from time to time as authorized by the board of directors without the 
approval of its shareholders, except as otherwise provided in this 
Section 5 or to the extent that such approval is required by governing 
law, rule, or regulation. The consideration for the issuance of the 
shares must be paid in full before their issuance and may not be less 
than the par [or stated] value. Neither promissory notes nor future 
services may constitute payment or part payment for the issuance of 
shares of the association. The consideration for the shares must be 
cash, tangible or intangible property (to the extent direct investment 
in such property would be permitted to the association), labor, or 
services actually performed for the association, or any combination of 
the foregoing. In the absence of actual fraud in the transaction, the 
value of such property, labor, or services, as determined by the board 
of directors of the association, is conclusive. Upon payment of such 
consideration, such shares are deemed to be fully paid and 
nonassessable. In the case of a stock dividend, that part of the 
retained earnings of the association that is transferred to common 
stock or paid-in capital accounts upon the issuance of shares as a 
stock dividend is deemed to be the consideration for their issuance.
    Except for shares issued in the initial organization of the 
association or in connection with the conversion of the association 
from the mutual to stock form of capitalization, no shares of capital 
stock (including shares issuable upon conversion, exchange, or exercise 
of other securities) may be issued, directly or indirectly, to 
officers, directors, or controlling persons of the association other 
than as part of a general public offering or as qualifying shares to a 
director, unless the issuance or the plan under which they would be 
issued has been approved by a majority of the total votes eligible to 
be cast at a legal meeting. The holders of the common stock exclusively 
possess all voting power. Each holder of shares of common stock is 
entitled to one vote for each share held by such holder, except as to 
the cumulation of votes for the election of directors, unless the 
charter provides that there will be no such cumulative voting. Subject 
to any provision for a liquidation account, in the event of any 
liquidation, dissolution, or winding up of the association, the holders 
of the common stock will be entitled, after payment or provision for 
payment of all debts and liabilities of the association, to receive the 
remaining assets of the association available for distribution, in cash 
or in kind. Each share of common stock must have the same relative 
rights as and be identical in all respects with all the other shares of 
common stock.
    (f) * * *
    (2) Form of filing--(i) Application requirement. Except as provided 
in paragraph (f)(2)(ii) of this section, a Federal stock savings 
association must file the proposed charter amendment with, and obtain 
the prior approval of the OCC.
    (A) Expedited review. Except as provided in paragraph (f)(2)(i)(B) 
of this section, the charter amendment will be deemed approved as of 
the 30th day after filing, unless the OCC notifies the filer that the 
amendment is denied or that the amendment contains procedures of the 
type described in paragraph (f)(2)(ii)(B) of this section and is not 
subject to expedited review, provide the association follows the 
requirements of its charter in adopting the amendment.
    (B) Amendments exempted from expedited review. Expedited review is 
not available for a charter amendment that would render more difficult 
or discourage a merger, tender offer, or proxy contest, the assumption 
of control by a holder of a block of the association's stock, the 
removal of incumbent management, or involve a significant issue of law 
or policy.
    (ii) Notice requirement. No application under paragraph (f)(2)(i) 
of this section is required if the amendment is contained within 
paragraphs (e) or (g) of this section. In such case, the Federal stock 
savings association must submit a notice with the charter amendment to 
the OCC within 30 days after adoption.
    (3) Effectiveness. A charter amendment is effective after approval 
by the OCC, if required, and adoption by the association, provided the 
association follows the requirements of its charter in adopting the 
amendments.
    (g) Optional charter amendments. The following charter amendments 
are subject to the notice requirement in paragraph (f)(2)(ii) of this 
section if adopted without change:
* * * * *
    (4) Capital stock. A Federal stock association may amend its 
charter by revising Section 5 to read as follows:
    Section 5. Capital stock. The total number of shares of all classes 
of capital stock that the association has the authority to issue is __, 
of which __ is common stock of par [or if no par value is specified the 
stated] value of __ per share and of which [list the number of each 
class of preferred and the par or if no par value is specified the 
stated value per share of each such class]. The shares may be issued 
from time to time as authorized by the board of directors without 
further approval of shareholders, except as otherwise provided in this 
Section 5 or to the extent that such approval is required by governing 
law, rule, or regulation. The consideration for the issuance of the 
shares must be paid in full before their issuance and may not be less 
than the par [or stated] value. Neither promissory notes nor future 
services may constitute payment or part payment for the issuance of 
shares of the association. The consideration for the shares must be 
cash, tangible or intangible property (to the extent direct investment 
in such property would be permitted), labor, or services actually 
performed for the

[[Page 18755]]

association, or any combination of the foregoing. In the absence of 
actual fraud in the transaction, the value of such property, labor, or 
services, as determined by the board of directors of the association, 
will be conclusive. Upon payment of such consideration, such shares 
will be deemed to be fully paid and nonassessable. In the case of a 
stock dividend, that part of the retained earnings of the association 
that is transferred to common stock or paid-in capital accounts upon 
the issuance of shares as a stock dividend will be deemed to be the 
consideration for their issuance.
    Except for shares issued in the initial organization of the 
association or in connection with the conversion of the association 
from the mutual to the stock form of capitalization, no shares of 
capital stock (including shares issuable upon conversion, exchange, or 
exercise of other securities) may be issued, directly or indirectly, to 
officers, directors, or controlling persons of the association other 
than as part of a general public offering or as qualifying shares to a 
director, unless their issuance or the plan under which they would be 
issued has been approved by a majority of the total votes eligible to 
be cast at a legal meeting.
    Nothing contained in this Section 5 (or in any supplementary 
sections hereto) entitles the holders of any class of a series of 
capital stock to vote as a separate class or series or to more than one 
vote per share, except as to the cumulation of votes for the election 
of directors, unless the charter otherwise provides that there will be 
no such cumulative voting: Provided, That this restriction on voting 
separately by class or series does not apply:
    i. To any provision which would authorize the holders of preferred 
stock, voting as a class or series, to elect some members of the board 
of directors, less than a majority thereof, in the event of default in 
the payment of dividends on any class or series of preferred stock;
    ii. To any provision that would require the holders of preferred 
stock, voting as a class or series, to approve the merger or 
consolidation of the association with another corporation or the sale, 
lease, or conveyance (other than by mortgage or pledge) of properties 
or business in exchange for securities of a corporation other than the 
association if the preferred stock is exchanged for securities of such 
other corporation: Provided, That no provision may require such 
approval for transactions undertaken with the assistance or pursuant to 
the direction of the OCC or the Federal Deposit Insurance Corporation;
    iii. To any amendment which would adversely change the specific 
terms of any class or series of capital stock as set forth in this 
Section 5 (or in any supplementary sections hereto), including any 
amendment which would create or enlarge any class or series ranking 
prior thereto in rights and preferences. An amendment which increases 
the number of authorized shares of any class or series of capital 
stock, or substitutes the surviving association in a merger or 
consolidation for the association, is not considered to be such an 
adverse change.
    A description of the different classes and series (if any) of the 
association's capital stock and a statement of the designations, and 
the relative rights, preferences, and limitations of the shares of each 
class of and series (if any) of capital stock are as follows:
    A. Common stock. Except as provided in this Section 5 (or in any 
supplementary sections thereto) the holders of the common stock 
exclusively possess all voting power. Each holder of shares of the 
common stock is entitled to one vote for each share held by each 
holder, except as to the cumulation of votes for the election of 
directors, unless the charter otherwise provides that there will be no 
such cumulative voting.
    Whenever there has been paid, or declared and set aside for 
payment, to the holders of the outstanding shares of any class of stock 
having preference over the common stock as to the payment of dividends, 
the full amount of dividends and of sinking fund, retirement fund, or 
other retirement payments, if any, to which such holders are 
respectively entitled in preference to the common stock, then dividends 
may be paid on the common stock and on any class or series of stock 
entitled to participate therewith as to dividends out of any assets 
legally available for the payment of dividends.
    In the event of any liquidation, dissolution, or winding up of the 
association, the holders of the common stock (and the holders of any 
class or series of stock entitled to participate with the common stock 
in the distribution of assets) will be entitled to receive, in cash or 
in kind, the assets of the association available for distribution 
remaining after: (i) Payment or provision for payment of the 
association's debts and liabilities; (ii) distributions or provision 
for distributions in settlement of its liquidation account; and (iii) 
distributions or provision for distributions to holders of any class or 
series of stock having preference over the common stock in the 
liquidation, dissolution, or winding up of the association. Each share 
of common stock will have the same relative rights as and be identical 
in all respects with all the other shares of common stock.
    B. Preferred stock. The association may provide in supplementary 
sections to its charter for one or more classes of preferred stock, 
which must be separately identified. The shares of any class may be 
divided into and issued in series, with each series separately 
designated so as to distinguish the shares thereof from the shares of 
all other series and classes. The terms of each series must be set 
forth in a supplementary section to the charter. All shares of the same 
class must be identical except as to the following relative rights and 
preferences, as to which there may be variations between different 
series:
    a. The distinctive serial designation and the number of shares 
constituting such series;
    b. The dividend rate or the amount of dividends to be paid on the 
shares of such series, whether dividends are cumulative and, if so, 
from which date(s), the payment date(s) for dividends, and the 
participating or other special rights, if any, with respect to 
dividends;
    c. The voting powers, full or limited, if any, of shares of such 
series;
    d. Whether the shares of such series are redeemable and, if so, the 
price(s) at which, and the terms and conditions on which, such shares 
may be redeemed;
    e. The amount(s) payable upon the shares of such series in the 
event of voluntary or involuntary liquidation, dissolution, or winding 
up of the association;
    f. Whether the shares of such series are entitled to the benefit of 
a sinking or retirement fund to be applied to the purchase or 
redemption of such shares, and if so entitled, the amount of such fund 
and the manner of its application, including the price(s) at which such 
shares may be redeemed or purchased through the application of such 
fund;
    g. Whether the shares of such series are convertible into, or 
exchangeable for, shares of any other class or classes of stock of the 
association and, if so, the conversion price(s) or the rate(s) of 
exchange, and the adjustments thereof, if any, at which such conversion 
or exchange may be made, and any other terms and conditions of such 
conversion or exchange.
    h. The price or other consideration for which the shares of such 
series are issued; and
    i. Whether the shares of such series which are redeemed or 
converted have the status of authorized but unissued

[[Page 18756]]

shares of serial preferred stock and whether such shares may be 
reissued as shares of the same or any other series of serial preferred 
stock.
    Each share of each series of serial preferred stock must have the 
same relative rights as and be identical in all respects with all the 
other shares of the same series.
    The board of directors has authority to divide, by the adoption of 
supplementary charter sections, any authorized class of preferred stock 
into series, and, within the limitations set forth in this section and 
the remainder of this charter, fix and determine the relative rights 
and preferences of the shares of any series so established.
    Prior to the issuance of any preferred shares of a series 
established by a supplementary charter section adopted by the board of 
directors, the association must file with the OCC a dated copy of that 
supplementary section of this charter established and designating the 
series and fixing and determining the relative rights and preferences 
thereof.
* * * * *
    (7) Anti-takeover provisions following mutual to stock conversion. 
Notwithstanding the law of the State in which the association is 
located, a Federal stock association may amend its charter by 
renumbering existing sections as appropriate and adding a new section 8 
as follows:
    Section 8. Certain Provisions Applicable for Five Years. 
Notwithstanding anything contained in the Association's charter or 
bylaws to the contrary, for a period of [specify number of years up to 
five] years from the date of completion of the conversion of the 
Association from mutual to stock form, the following provisions will 
apply:
    A. Beneficial Ownership Limitation. No person may directly or 
indirectly offer to acquire or acquire the beneficial ownership of more 
than 10 percent of any class of an equity security of the association. 
This limitation does not apply to a transaction in which the 
association forms a holding company without change in the respective 
beneficial ownership interests of its stockholders other than pursuant 
to the exercise of any dissenter and appraisal rights, the purchase of 
shares by underwriters in connection with a public offering, or the 
purchase of less than 25 percent of a class of stock by a tax-qualified 
employee stock benefit plan as defined in 12 CFR 192.25.
    In the event shares are acquired in violation of this section 8, 
all shares beneficially owned by any person in excess of 10 percent 
will be considered ``excess shares'' and will not be counted as shares 
entitled to vote and may not be voted by any person or counted as 
voting shares in connection with any matters submitted to the 
stockholders for a vote.
    For purposes of this section 8, the following definitions apply:
    1. The term ``person'' includes an individual, a group acting in 
concert, a corporation, a partnership, an association, a joint stock 
company, a trust, an unincorporated organization or similar company, a 
syndicate or any other group formed for the purpose of acquiring, 
holding or disposing of the equity securities of the association.
    2. The term ``offer'' includes every offer to buy or otherwise 
acquire, solicitation of an offer to sell, tender offer for, or request 
or invitation for tenders of, a security or interest in a security for 
value.
    3. The term ``acquire'' includes every type of acquisition, whether 
effected by purchase, exchange, operation of law or otherwise.
    4. The term ``acting in concert'' means (a) knowing participation 
in a joint activity or parallel action towards a common goal of 
acquiring control whether or not pursuant to an express agreement, or 
(b) a combination or pooling of voting or other interests in the 
securities of an issuer for a common purpose pursuant to any contract, 
understanding, relationship, agreement or other arrangement, whether 
written or otherwise.
    B. Cumulative Voting Limitation. Stockholders may not cumulate 
their votes for election of directors.
    C. Call for Special Meetings. Special meetings of stockholders 
relating to changes in control of the association or amendments to its 
charter may be called only upon direction of the board of directors.
* * * * *
    (j) * * *
    (2) Form of filing--(i) Application requirement. Except as provided 
in paragraphs (j)(2)(ii) or (j)(2)(iii) of this section, a Federal 
stock savings association must file the proposed bylaw amendment with, 
and obtain the prior approval of, the OCC.
    (A) Expedited review. Except as provided in paragraph (j)(2)(i)(B) 
of this section, the bylaw amendment will be deemed approved as of the 
30th day after filing, unless the OCC notifies the filer that the 
application is denied or that the amendment contains procedures of the 
type described in paragraph (j)(2)(i)(B) of this section and is not 
eligible for expedited review, provided the association follows the 
requirements of its charter and bylaws in adopting the amendment.
    (B) Amendments exempted from expedited review. Expedited review is 
not available for a bylaw amendment that would:
    (1) Render more difficult or discourage a merger, tender offer, or 
proxy contest, the assumption of control by a holder of a large block 
of the association's stock, or the removal of incumbent management; or
    (2) Be inconsistent with paragraphs (k) through (n) of this 
section, with applicable laws, rules, regulations or the association's 
charter or involve a significant issue of law or policy, including 
indemnification, conflicts of interest, and limitations on director or 
officer liability.
    (ii) Notice Requirement. A Federal stock association may elect to 
follow the corporate governance procedures of: The laws of the State 
where the home office of the association is located; the laws of the 
State where the association's holding company, if any, is incorporated 
or chartered; Delaware General Corporation law; or The Model Business 
Corporation Act, provided that such procedures may be elected to the 
extent not inconsistent with applicable Federal statutes and 
regulations and safety and soundness, and such procedures are not of 
the type described in paragraph (j)(2)(i)(B) of this section. If this 
election is selected, a Federal stock association must designate in its 
bylaws the provision or provisions from the body or bodies of law 
selected for its corporate governance procedures, and must file a 
notice containing a copy of such bylaws, within 30 days after adoption. 
The notice must indicate, where not obvious, why the bylaw provisions 
meet the requirements stated in paragraph (j)(2)(i)(B) of this section.
    (iii) No filing required. No filing is required for purposes of 
paragraph (j)(2) of this section if a bylaw amendment adopts the 
language of the OCC's model or optional bylaws without change.
    (3) Effectiveness. A bylaw amendment is effective after approval by 
the OCC, if required, and adoption by the association, provided that 
the association follows the requirements of its charter and bylaws in 
adopting the amendment.
* * * * *
    (k) Shareholders of Federal stock savings associations--(1) 
Shareholder meetings. A meeting of the shareholders of the association 
for the election of directors and for the transaction of any other 
business of the association must be held annually within 150 days after 
the end of the association's fiscal year.

[[Page 18757]]

Unless otherwise provided in the association's charter, special 
meetings of the shareholders may be called by the board of directors or 
on the request of the holders of 10 percent or more of the shares 
entitled to vote at the meeting, or by such other persons as may be 
specified in the bylaws of the association. All annual and special 
meetings of shareholders may be held at any convenient place the board 
of directors may designate.
    (2) Notice of shareholder meetings. Written notice stating the 
place, day, and hour of the meeting and the purpose or purposes for 
which the meeting is called must be delivered not fewer than 20 nor 
more than 50 days before the date of the meeting, either personally or 
by mail, by or at the direction of the chair of the board, the 
president, the secretary, or the directors, or other persons calling 
the meeting, to each shareholder of record entitled to vote at such 
meeting. If mailed, such notice will be deemed to be delivered when 
deposited in the mail, addressed to the shareholder at the address 
appearing on the stock transfer books or records of the association as 
of the record date prescribed in paragraph (i)(3) of this section, with 
postage thereon prepaid. When any shareholders' meeting, either annual 
or special, is adjourned for 30 days or more, notice of the adjourned 
meeting must be given as in the case of an original meeting. 
Notwithstanding anything in this section, however, a Federal stock 
association that is wholly owned is not subject to the shareholder 
notice requirement.
    (3) Fixing of record date. For the purpose of determining 
shareholders entitled to notice of or to vote at any meeting of 
shareholders or any adjournment thereof, or shareholders entitled to 
receive payment of any dividend, or in order to make a determination of 
shareholders for any other proper purpose, the board of directors must 
fix in advance a date as the record date for any such determination of 
shareholders. Such date in any case may not more than 60 days and, in 
case of a meeting of shareholders, not less than 10 days prior to the 
date on which the particular action, requiring such determination of 
shareholders, is to be taken. When a determination of shareholders 
entitled to vote at any meeting of shareholders has been made as 
provided in this section, such determination will apply to any 
adjournment thereof.
    (4) Voting lists. (i) At least 20 days before each meeting of the 
shareholders, the officer or agent having charge of the stock transfer 
books for the shares of the association must make a complete list of 
the stockholders of record entitled to vote at such meeting, or any 
adjournments thereof, arranged in alphabetical order, with the address 
and the number of shares held by each. This list of shareholders must 
be kept on file at the home office of the association and is subject to 
inspection by any shareholder of record or the stockholder's agent 
during the entire time of the meeting. The original stock transfer book 
will constitute prima facie evidence of the stockholders entitled to 
examine such list or transfer books or to vote at any meeting of 
stockholders. Notwithstanding anything in this section, however, a 
Federal stock association that is wholly owned is not subject to the 
voting list requirements.
    (ii) In lieu of making the shareholders list available for 
inspection by any shareholders as provided in paragraph (j)(4)(i) of 
this section, the board of directors may perform such acts as required 
by paragraphs (a) and (b) of Rule 14a-7 of the General Rules and 
Regulations under the Securities and Exchange Act of 1934 (17 CFR 
240.14a-7) as may be duly requested in writing, with respect to any 
matter which may be properly considered at a meeting of shareholders, 
by any shareholder who is entitled to vote on such matter and who must 
defray the reasonable expenses to be incurred by the association in 
performance of the act or acts required.
    (5) Shareholder quorum. A majority of the outstanding shares of the 
association entitled to vote, represented in person or by proxy, 
constitutes a quorum at a meeting of shareholders. The shareholders 
present at a duly organized meeting may continue to transact business 
until adjournment, notwithstanding the withdrawal of enough 
shareholders to leave less than a quorum. If a quorum is present, the 
affirmative vote of the majority of the shares represented at the 
meeting and entitled to vote on the subject matter will be the act of 
the stockholders, unless the vote of a greater number of stockholders 
voting together or voting by classes is required by law or the charter. 
Directors, however, are elected by a plurality of the votes cast at an 
election of directors.
    (6) Shareholder voting--(i) Proxies. Unless otherwise provided in 
the association's charter, at all meetings of shareholders, a 
shareholder may vote in person or by proxy executed in writing by the 
shareholder or by a duly authorized attorney in fact. Proxies may be 
given telephonically or electronically as long as the holder uses a 
procedure for verifying the identity of the shareholder. Proxies 
solicited on behalf of the management must be voted as directed by the 
shareholder or, in the absence of such direction, as determined by a 
majority of the board of directors. No proxy may be valid more than 
eleven months from the date of its execution except for a proxy coupled 
with an interest.
    (ii) Shares controlled by association. Neither treasury shares of 
its own stock held by the association nor shares held by another 
corporation, if a majority of the shares entitled to vote for the 
election of directors of such other corporation are held by the 
association, may be voted at any meeting or counted in determining the 
total number of outstanding shares at any given time for purposes of 
any meeting.
    (7) Nominations and new business submitted by shareholders. 
Nominations for directors and new business submitted by shareholders 
must be voted upon at the annual meeting if such nominations or new 
business are submitted in writing and delivered to the secretary of the 
association at least five days prior to the date of the annual meeting. 
Ballots bearing the names of all the persons nominated must be provided 
for use at the annual meeting.
* * * * *
    (l) Board of directors--(1) General powers and duties. The business 
and affairs of the association must be under the direction of its board 
of directors. Directors need not be stockholders unless the bylaws so 
require.
    (2) Number and term. The bylaws must set forth a specific number of 
directors, not a range. The number of directors may not be fewer than 
five nor more than fifteen, unless a higher or lower number has been 
authorized by the OTS prior to July 21, 2011 or the OCC. Directors must 
be elected for a term of one to three years and until their successors 
are elected and qualified. If a staggered board is chosen, the 
directors must be divided into two or three classes as nearly equal in 
number as possible and one class must be elected by ballot annually.
    (3) Regular meetings. The board of directors determines the place, 
frequency, time and procedure for notice of regular meetings.
    (4) Quorum. A majority of the number of directors constitutes a 
quorum for the transaction of business at any meeting of the board of 
directors. The act of the majority of the directors present at a 
meeting at which a quorum is present will be the act of the board of 
directors, unless a greater number is prescribed by regulation of the 
OCC.
    (5) Vacancies. Any vacancy occurring in the board of directors may 
be filled

[[Page 18758]]

by the affirmative vote of a majority of the remaining directors 
although less than a quorum of the board of directors. A director 
elected to fill a vacancy may serve only until the next election of 
directors by the shareholders. Any directorship to be filled by reason 
of an increase in the number of directors may be filled by election by 
the board of directors for a term of office continuing only until the 
next election of directors by the shareholders.
    (6) Removal or resignation of directors. (i) At a meeting of 
shareholders called expressly for that purpose, any director may be 
removed only for cause, as termination for cause is defined in Sec.  
5.21(j)(2)(x)(B), by a vote of the holders of a majority of the shares 
then entitled to vote at an election of directors. Associations may 
provide for procedures regarding resignations in the bylaws.
    (ii) If less than the entire board is to be removed, no one of the 
directors may be removed if the votes cast against the removal would be 
sufficient to elect a director if then cumulatively voted at an 
election of the class of directors of which such director is a part.
    (iii) Whenever the holders of the shares of any class are entitled 
to elect one or more directors by the provisions of the charter or 
supplemental sections thereto, the provisions of this section apply, in 
respect to the removal of a director or directors so elected, to the 
vote of the holders of the outstanding shares of that class and not to 
the vote of the outstanding shares as a whole.
    (7) Executive and other committees. The board of directors, by 
resolution adopted by a majority of the full board, may designate from 
among its members an executive committee and one or more other 
committees. No committee may have the authority of the board of 
directors with reference to: The declaration of dividends; the 
amendment of the charter or bylaws of the association; recommending to 
the stockholders a plan of merger, consolidation, or conversion; the 
sale, lease, or other disposition of all, or substantially all, of the 
property and assets of the association otherwise than in the usual and 
regular course of its business; a voluntary dissolution of the 
association; a revocation of any of the foregoing; or the approval of a 
transaction in which any member of the executive committee, directly or 
indirectly, has any material beneficial interest. The designation of 
any committee and the delegation of authority thereto does not operate 
to relieve the board of directors, or any director, of any 
responsibility imposed by law or regulation.
    (8) Notice of special meetings. Written notice of at least 24 hours 
regarding any special meeting of the board of directors or of any 
committee designated thereby must be given to each director in 
accordance with the bylaws, although such notice may be waived by the 
director. The attendance of a director at a meeting constitutes a 
waiver of notice of such meeting, except where a director attends a 
meeting for the express purpose of objecting to the transaction of any 
business because the meeting is not lawfully called or convened. 
Neither the business to be transacted at, nor the purpose of, any 
meeting need be specified in the notice or waiver of notice of such 
meeting. The bylaws may provide for electronic participation at a 
meeting.
    (9) Action without a meeting. Any action required or permitted to 
be taken by the board of directors at a meeting may be taken without a 
meeting if a consent in writing, setting forth the actions so taken, is 
signed by all of the directors.
    (10) Presumption of assent. A director of the association who is 
present at a meeting of the board of directors at which action on any 
association matter is taken is presumed to have assented to the action 
taken unless their dissent or abstention is entered in the minutes of 
the meeting or unless a written dissent to such action is filed with 
the person acting as the secretary of the meeting before the 
adjournment thereof or is forwarded by registered mail to the secretary 
of the association within five days after the date on which a copy of 
the minutes of the meeting is received. Such right to dissent does not 
apply to a director who voted in favor of such action.
* * * * *
    (n) Certificates for shares and their transfer--(1) Certificates 
for shares. Certificates representing shares of capital stock of the 
association must be in such form as determined by the board of 
directors and approved by the OCC. The name and address of the person 
to whom the shares are issued, with the number of shares and date of 
issue, must be entered on the stock transfer books of the association. 
All certificates surrendered to the association for transfer must be 
cancelled and no new certificate may be issued until the former 
certificate for a like number of shares has been surrendered and 
cancelled, except that in the case of a lost or destroyed certificate a 
new certificate may be issued upon such terms and indemnity to the 
association as the board of directors may prescribe.
    (2) Transfer of shares. Transfer of shares of capital stock of the 
association may be made only on its stock transfer books. Authority for 
such transfer may be given only by the holder of record or by a legal 
representative, who must furnish proper evidence of such authority, or 
by an attorney authorized by a duly executed power of attorney and 
filed with the association. The transfer may be made only on surrender 
for cancellation of the certificate for the shares. The person in whose 
name shares of capital stock stand on the books of the association is 
deemed by the association to be the owner for all purposes.
0
16. Amend Sec.  5.23 by:
0
a. In paragraph (b)(2), removing the phrase ``an industrial bank or a 
credit union, chartered in'' and adding in its place the phrase ``an 
industrial bank, or a credit union chartered in'';
0
b. In paragraphs (c), (d)(2)(ii), (e), and (f)(1), removing the word 
``shall'' each time that it appears and adding in its place the word 
``must'';
0
c. In paragraphs (c), (d)(1), (d)(2)(i), (d)(2)(v), and (d)(4), 
removing the word ``applicant'' each time that it appears and adding in 
its place the word ``filer'';
0
d. In paragraph (c), removing the phrase ``Federal Deposit Insurance 
Corporation (FDIC)'' and adding in its place the word ``FDIC'';
0
e. Removing paragraph (d)(2)(ii)(A), redesignating paragraphs 
(d)(2)(ii)(B) through (J) as paragraphs (d)(2)(ii)(A) through (I), 
respectively and adding new paragraphs (d)(2)(ii)(K) and (d)(2)(ii)(L);
0
f. In newly redesignated paragraphs (d)(2)(ii)(D) and (d)(2)(ii)(I), 
removing the word ``state'' and adding in its place the word ``State'';
0
g. In newly redesignated paragraph (d)(2)(ii)(G), removing the comma 
after the phrase ``engages in'';
0
h. In newly redesignated paragraph (d)(2)(ii)(I), removing the word 
``and'' after the phrase ``after conversion;'';
0
i. In newly redesignated paragraph (d)(2)(ii)(J), removing the period 
after the phrase ``from the OCC'' and adding in its place a semicolon;
0
j. In paragraph (d)(2)(iii), removing the word ``HOLA'' and adding in 
its place ``Home Owners' Loan Act (12 U.S.C. 1464(c))'';
0
k. Redesignating paragraphs (d)(2)(iv) through (v) as paragraphs 
(d)(2)(v) through (vi) and adding a new paragraph (d)(2)(iv);
0
l. Revising paragraph (d)(4); and
0
m. In paragraph (e), removing the phrase ``an applicant'' and adding in 
its place the phrase ``a filer'';
0
n. In paragraph (f)(1), removing the word ``state'' and adding in its 
place the word ``State''; and

[[Page 18759]]

0
o. In paragraph (g) removing the phrase ``shall continue'' and adding 
in its place the word ``continues'' and removing the phrase ``shall 
be'' and adding in its place the word ``is''.
    The additions and revision read as follows.


Sec.  5.23  Conversion to become a Federal savings association.

* * * * *
    (d) * * *
    (2) * * *
    (ii) * * *
    (K) Include a list of directors and senior executive officers, as 
defined in Sec.  5.51, of the converting institution; and
    (L) Include a list of individuals, directors, and shareholders who 
directly or indirectly, or acting in concert with one or more persons 
or companies, or together with members of their immediate family, do or 
will own, control, or hold 10 percent or more of the institution's 
voting stock.
* * * * *
    (iv) The OCC may require directors and senior executive officers of 
the converting institution to submit the Interagency Biographical and 
Financial Report, available at www.occ.gov, and legible fingerprints.
* * * * *
    (4) Expedited review. An application by an eligible bank to convert 
to a Federal savings association charter is deemed approved by the OCC 
as of the 45th day after the filing is received by the OCC, unless the 
OCC notifies the filer prior to that date that the filing has been 
removed from expedited review, or the expedited review process is 
extended, under Sec.  5.13(a)(2).
* * * * *
0
17. Amend Sec.  5.24 by:
0
 a. In paragraphs (b), (c)(1), (c)(2), (d), (e)(2) introductory text, 
and (e)(3), removing the word ``state'' each time that it appears and 
adding in its place the word ``State'';
0
b. In paragraphs (b), (e)(2) introductory text, and (f), removing the 
word ``shall'' each time that it appears and adding in its place the 
word ``must'';
0
c. In paragraph (c)(2), removing the word ``state'' and adding in its 
place the word ``State'';
0
 d. In paragraphs (d), (e)(1), and (h), removing the word ``applicant'' 
each time that it appears and adding in its place the word ``filer'';
0
e. Removing paragraph (e)(2)(i) and redesignating paragraphs (e)(2)(ii) 
through (x) as paragraphs (e)(2)(i) through (ix), respectively, and 
adding paragraphs (e)(2)(x) through (xi);
0
f. In newly redesignated paragraphs (e)(2)(iv) and (e)(2)(ix), removing 
the word ``state'' each time that it appears and adding in its place 
the word ``State'';
0
g. At the end of newly redesignated paragraph (e)(2)(viii), removing 
the word ``and'';
0
h. At the end of newly redesignated paragraph (e)(2)(ix), removing the 
period and adding in its place a semicolon;
0
i. Redesignating paragraphs (e)(4) through (5) as paragraphs (e)(5) 
through (6), respectively, and adding a new paragraph (e)(4);
0
 j. In newly redesignated paragraph (e)(6), removing the word 
``applicant'' and adding the word ``filer'' in its place;
0
 k. Revising paragraph (h); and
0
l. In paragraph (i):
0
i. In the first sentence, removing the phrase ``shall continue'' and 
adding in its place the word ``continues''; and
0
ii. In the second sentence, removing the phrase ``shall be'' and adding 
in its place the word ``is''.
    The additions and revisions read as follows.


Sec.  5.24  Conversion to become a national bank.

* * * * *
    (e) * * *
    (2) * * *
    (x) Include a list of directors and senior executive officers, as 
defined in Sec.  5.51, of the converting institution; and
    (xi) Include a list of individuals, directors, and shareholders who 
directly or indirectly, or acting in concert with one or more persons 
or companies, or together with members of their immediate family, do or 
will own, control, or hold 10 percent or more of the institution's 
voting stock.
* * * * *
    (4) The OCC may require directors and senior executive officers of 
the converting institution to submit the Interagency Biographical and 
Financial Report, available at www.occ.gov, and legible fingerprints.
* * * * *
    (h) Expedited review. An application by an eligible savings 
association to convert to a national bank charter is deemed approved by 
the OCC as of the 45th day after the filing is received by the OCC, 
unless the OCC notifies the filer prior to that date that the filing 
has been removed from expedited review, or the expedited review process 
is extended, under Sec.  5.13(a)(2).
* * * * *


Sec.  5.25  [Amended]

0
18. Amend Sec.  5.25 by:
0
a. In the section heading and in paragraphs (b), (c), (d)(1), (d)(2), 
(d)(3)(i), and (d)(4), removing the word ``state'' each time that it 
appears and adding in its place the word ``State'';
0
b. In paragraphs (b), (d)(3)(i), and (d)(3)(ii), removing the word 
``shall'' each time it appears and adding in its place the word 
``must''; and
0
c. In paragraphs (d)(1) and (d)(3)(i), removing the phrase ``defined in 
214(a)'' each time in appears and adding in its place the phrase 
``defined in 12 U.S.C. 214(a)''.
0
19. Amend Sec.  5.26 by:
0
a. In paragraph (a), removing the phrase ``12 U.S.C. 92a and'' and 
adding in its place the phrase ``12 U.S.C. 92a,'';
0
b. In paragraphs (b)(2) and (b)(4), removing the phrase ``Office of 
Thrift Supervision'' each time in appears and adding in its place the 
word ``OTS'';
0
c. In paragraphs (b)(3), (b)(4), (e)(1)(ii), (e)(1)(iii), (e)(2)(i)(B), 
(e)(2)(i)(E), and (e)(2)(iii)(B), removing the word ``state'' each time 
it appears and adding in its place the word ``State''; and
0
d. In paragraph (e)(2)(i) introductory text, removing the word 
``shall'' and adding in its place the word ``must'';
0
e. Revising paragraph (e)(2)(i)(C);
0
f. In paragraph (e)(2)(ii), removing the word ``applicant'' and adding 
in its place the word ``filer''; and
0
g. Revising paragraphs (e)(3) and (6).
    The revisions read as follows.


Sec.  5.26  Fiduciary powers of national banks and Federal savings 
associations.

* * * * *
    (e) * * *
    (2) * * *
    (i) * * *
    (C) Sufficient biographical information on proposed senior trust 
management personnel, as identified by the OCC, to enable the OCC to 
assess their qualifications, including, if requested by the OCC, 
legible fingerprints and the Interagency Biographical and Financial 
Report, available at www.occ.gov;
* * * * *
    (3) Expedited review. An application by an eligible bank or 
eligible savings association to exercise fiduciary powers is deemed 
approved by the OCC as of the 30th day after the application is 
received by the OCC, unless the OCC notifies the bank or savings 
association prior to that date that the filing has been removed from 
expedited review, or the expedited review process is extended, under 
Sec.  5.13(a)(2).
* * * * *
    (6) Notice of fiduciary activities in additional States. (i) Except 
as provided in paragraphs (e)(6)(iii)-(iv) of this section, a national 
bank or Federal savings association with existing OCC approval to 
exercise fiduciary powers must provide written notice to the OCC

[[Page 18760]]

no later than 10 days after it begins to engage in any of the 
activities specified in Sec.  9.7(d) of this chapter in a State in 
addition to the State or States described in the application for 
fiduciary powers that the OCC has approved.
    (ii) A notice submitted pursuant to paragraph (e)(6)(i) of this 
section must identify the new State or States involved, identify the 
fiduciary activities to be conducted, and describe the extent to which 
the activities differ materially from the fiduciary activities the 
national bank or Federal savings association previously conducted.
    (iii) No notice under paragraph (e)(6)(i) of this section is 
required if the national bank or Federal savings association provides 
the information required by paragraph (e)(6)(ii) of this section 
through other means, such as a merger application.
    (iv) No notice is required if the national bank or Federal savings 
association is conducting only activities ancillary to its fiduciary 
business through a trust representative office or otherwise.
* * * * *
0
20. Amend Sec.  5.30 by:
0
a. Removing the word ``shall'' each time it appears and adding in its 
place the word ``must'' in paragraphs (b), (f)(1), (f)(4), (g), (h)(1), 
and (j);
0
b. Revising paragraphs (d)(1)(i) and (iii)
0
c. In paragraph (d)(2), removing the word ``state'' and adding in its 
place the word ``State'';
0
d. In paragraphs (d)(2), (d)(3), (g), and (h)(4), removing the word 
``state'' each time it appears and adding in its place the word 
``State'';
0
e. In paragraph (f)(1), removing the phrase ``paragraph (f)(2)'' and 
adding in its place the phrase ``paragraphs (f)(2) or (f)(3)''; and
0
f. In paragraph (f)(6), removing the phrase ``is not eligible for 
expedited review, or the expedited review process is extended, under 
Sec.  5.13(a)(2)'' and adding in its place the phrase ``has been 
removed from expedited review, or the expedited review process is 
extended, under Sec.  5.13(a)(2)''.
    The revisions read as follows.


Sec.  5.30  Establishment, acquisition, and relocation of a branch of a 
national bank.

* * * * *
    (d) * * *
    (1) * * *
    (i) A branch established by a national bank includes a seasonal 
agency described in 12 U.S.C. 36(c), a mobile facility, a temporary 
facility, an intermittent facility, or a drop box.
* * * * *
    (iii) A branch does not include a remote service unit (RSU) as 
described in 12 CFR 7.4003. This encompasses RSUs that are automated 
teller machines (ATMs), including interactive ATMs. A branch also does 
not include a loan production office, a deposit production office, a 
trust office, an administrative office, a data processing office, or 
any other office that does not engage in at least one of the activities 
in paragraph (d)(1) of this section.
* * * * *
0
21. Amend Sec.  5.31 by:
0
a. In paragraph (a) removing the period after ``1464'' and adding in 
its place a comma; and adding a comma after ``2907'';
0
b. In paragraphs (b), (f)(1)(i), (f)(3), (i), (k)(2)(ii), and (j)(2), 
removing the word ``shall'' and adding in its place the word ``must'' 
each time it appears;
0
c. In paragraphs (c)(3) and (j)(1), removing the word ``HOLA'' and 
adding in its place the phrase ``Home Owners' Loan Act'';
0
d. In paragraph (d)(1), removing the word ``office'';
0
e. In paragraph (d)(2), removing the word ``state'' and adding in its 
place the word ``State'';
0
f. In paragraphs (d)(2), (g)(2), and (j)(2), removing the word 
``state'' and adding in its place the word ``State'' each time in 
appears;
0
g. In paragraph (f)(1)(iii), removing the word ``Federal'' and removing 
the phrase ``is not eligible for expedited review, or the expedited 
review process is extended, under Sec.  5.13(a)(2)'' and adding in its 
place the phrase ``has been removed from expedited review, or the 
expedited review process is extended, under Sec.  5.13(a)(2)'';
0
h. In paragraph (f)(2)(ii), removing the word ``Sec.  5.3(l)'' and 
adding its place the word ``Sec.  5.3'';
0
i. In paragraph (f)(2)(iii) introductory text, removing the word 
``Sec.  5.3(g)'' and adding its place ``Sec.  5.3'';
0
j. In paragraph (j) introductory text, removing the word ``HOLA'' and 
adding in its place ``Home Owners' Loan Act''; and
0
k. Adding paragraph (j)(3).
    The addition reads as follows.


Sec.  5.31  Establishment, acquisition, and relocation of a branch and 
establishment of an agency office of a Federal savings association.

* * * * *
    (j) * * *
    (3) For purposes of 12 U.S.C. 1464(m)(1), a branch in the District 
of Columbia includes any location at which accounts are opened, 
payments are received, or withdrawals are made. This includes an 
Automated Teller Machine that performs one or more of these functions.
* * * * *


Sec.  5.32  [Amended]

0
22. Amend Sec.  5.32 by:
0
a. In paragraphs (c), (f), (h)(1), and (h)(2), removing the word 
``shall'' and adding in its place the word ``must'' each time it 
appears;
0
b. In paragraph (d)(1), removing the phrase ``shall be'' and adding in 
its place the word ``is'';
0
c. In paragraph (d)(2)(i), removing the word ``shall'' and adding in 
its place the word ``will'';
0
d. In paragraph (e), removing the phrase ``his or her'' and adding in 
its place the word ``their'';
0
e. In paragraph (f), removing the word ``Applicant'' and adding in its 
place the word ``Filers''; and
0
f. In paragraph (h)(1), removing the phrase ``An applicant'' and adding 
in its place the phrase ``A filer''; and
0
g. In paragraph (h)(2), removing the word ``applicant'' and adding in 
its place the word ``filer''.
0
23. Revise Sec.  5.33 to read as follows:


 Sec.  5.33  Business combinations involving a national bank or Federal 
savings association.

    (a) Authority. 12 U.S.C. 24(Seventh), 93a, 181, 214a, 214b, 215, 
215a, 215a-1, 215a-3, 215b, 215c, 1462a, 1463, 1464, 1467a, 1828(c), 
1831u, 2903, and 5412(b)(2)(B).
    (b) Scope. This section sets forth the provisions governing 
business combinations and the standards for:
    (1) OCC review and approval of an application by a national bank or 
a Federal savings association for a business combination resulting in a 
national bank or Federal savings association; and
    (2) Requirements of notices and other procedures for national banks 
and Federal savings associations involved in other combinations in 
which a national bank or Federal savings association is not the 
resulting institution.
    (c) Licensing requirements. As prescribed by this section, a 
national bank or Federal savings association must submit an application 
and obtain prior OCC approval for a business combination when the 
resulting institution is a national bank or Federal savings 
association. As prescribed by this section, a national bank or Federal 
savings association must give notice to the OCC prior to engaging in 
any other combination where the resulting institution will not be a 
national bank or Federal savings association.\26\ A

[[Page 18761]]

national bank must submit an application and obtain prior OCC approval 
for any merger between the national bank and one or more of its nonbank 
affiliates.
---------------------------------------------------------------------------

    \26\ Other combinations, as defined in paragraph (d)(10) of this 
section, do not require an application under this section. However, 
some may require an application under 12 CFR 5.53.
---------------------------------------------------------------------------

    (d) Definitions. For purposes of this section:
    (1) Bank means any national bank or any State bank.
    (2) Business combination means:
    (i) Any merger or consolidation between a national bank or a 
Federal savings association and one or more depository institutions or 
State trust companies, in which the resulting institution is a national 
bank or Federal savings association;
    (ii) In the case of a Federal savings association, any merger or 
consolidation with a credit union in which the resulting institution is 
a Federal savings association;
    (iii) In the case of a national bank, any merger between a national 
bank and one or more of its nonbank affiliates;
    (iv) The acquisition by a national bank or a Federal savings 
association of all, or substantially all, of the assets of another 
depository institution; or
    (v) The assumption by a national bank or a Federal savings 
association of any deposit liabilities of another insured depository 
institution or any deposit accounts or other liabilities of a credit 
union or any other institution that will become deposits at the 
national bank or Federal savings association.
    (3) Business reorganization means either:
    (i) A business combination between eligible banks and eligible 
savings associations, or between an eligible bank or an eligible 
savings association and an eligible depository institution, that are 
controlled by the same holding company or that will be controlled by 
the same holding company prior to the combination; or
    (ii) A business combination between an eligible bank or an eligible 
savings association and an interim national bank or interim Federal 
savings association chartered in a transaction in which a person or 
group of persons exchanges its shares of the eligible bank or eligible 
savings association for shares of a newly formed holding company and 
receives after the transaction substantially the same proportional 
share interest in the holding company as it held in the eligible bank 
or eligible savings association (except for changes in interests 
resulting from the exercise of dissenters' rights), and the 
reorganization involves no other transactions involving the bank or 
savings association.
    (4) Company means a corporation, limited liability company, 
partnership, business trust, association, or similar organization.
    (5) For business combinations under paragraphs (g)(4) and (5) of 
this section, a company or shareholder is deemed to control another 
company if:
    (i) Such company or shareholder, directly or indirectly, or acting 
through one or more other persons owns, controls, or has power to vote 
25 percent or more of any class of voting securities of the other 
company; or
    (ii) Such company or shareholder controls in any manner the 
election of a majority of the directors or trustees of the other 
company. No company is deemed to own or control another company by 
virtue of its ownership or control of shares in a fiduciary capacity.
    (6) Credit union means a financial institution subject to 
examination by the National Credit Union Administration Board.
    (7) Home State means, with respect to a national bank, the State in 
which the main office of the national bank is located and, with respect 
to a State bank, the State by which the bank is chartered.
    (8) Interim national bank or interim Federal savings association 
means a national bank or Federal savings association that does not 
operate independently but exists solely as a vehicle to accomplish a 
business combination.
    (9) Nonbank affiliate of a national bank means any company (other 
than a bank or Federal savings association) that controls, is 
controlled by, or is under common control with the national bank.
    (10) Other combination means:
    (i) Any merger or consolidation between a national bank or a 
Federal savings association and one or more depository institutions or 
State trust companies, in which the resulting institution is not a 
national bank or Federal savings association;
    (ii) In the case of a Federal stock savings association, any merger 
or consolidation with a credit union in which the resulting institution 
is a credit union;
    (iii) The transfer by a national bank or a Federal savings 
association of any deposit liabilities to another insured depository 
institution, a credit union or any other institution; or
    (iv) The acquisition by a national bank or a Federal savings 
association of all, or substantially all, of the assets, or the 
assumption of all or substantially all of the liabilities, of any 
company other than a depository institution.
    (11) Savings association and State savings association have the 
meaning set forth in section 3(b) of the Federal Deposit Insurance Act, 
12 U.S.C. 1813(b).
    (12) State trust company means a trust company organized under 
State law that is not engaged in the business of receiving deposits, 
other than trust funds.
    (e) Policy--(1) Factors--(i) In general. When the OCC evaluates any 
application for a business combination, the OCC considers the following 
factors:
    (A) The capital level of any resulting national bank or Federal 
savings association
    (B) The conformity of the transaction to applicable law, 
regulation, and supervisory policies;
    (C) The purpose of the transaction;
    (D) The impact of the transaction on safety and soundness of the 
national bank or Federal savings association; and
    (E) The effect of the transaction on the national bank's or Federal 
savings association's shareholders (or members in the case of a mutual 
savings association), depositors, other creditors, and customers.
    (ii) Bank Merger Act. When the OCC evaluates an application for a 
business combination under the Bank Merger Act, the OCC also considers 
the following factors:
    (A) Competition. (1) The OCC considers the effect of a proposed 
business combination on competition. The filer must provide a 
competitive analysis of the transaction, including a definition of the 
relevant geographic market or markets. A filer may refer to the 
Comptroller's Licensing Manual for procedures to expedite its 
competitive analysis.
    (2) The OCC will deny an application for a business combination if 
the combination would result in a monopoly or would be in furtherance 
of any combination or conspiracy to monopolize or attempt to monopolize 
the business of banking in any part of the United States. The OCC also 
will deny any proposed business combination whose effect in any section 
of the United States may be substantially to lessen competition, or 
tend to create a monopoly, or which in any other manner would be in 
restraint of trade, unless the probable effects of the transaction in 
meeting the convenience and needs of the community clearly outweigh the 
anticompetitive effects of the transaction. For purposes of weighing 
against anticompetitive effects, a business combination may have 
favorable effects in meeting the convenience and needs of the community 
if the depository institution being acquired has limited long-term

[[Page 18762]]

prospects, or if the resulting national bank or Federal savings 
association will provide significantly improved, additional, or less 
costly services to the community.
    (B) Financial and managerial resources and future prospects. The 
OCC considers the financial and managerial resources and future 
prospects of the existing or proposed institutions.
    (C) Convenience and needs of community. The OCC considers the 
probable effects of the business combination on the convenience and 
needs of the community served. The filer must describe these effects in 
its application, including any planned office closings or reductions in 
services following the business combination and the likely impact on 
the community. The OCC also considers additional relevant factors, 
including the resulting national bank's or Federal savings 
association's ability and plans to provide expanded or less costly 
services to the community.
    (D) Money laundering. The OCC considers the effectiveness of any 
insured depository institution involved in the business combination in 
combating money laundering activities, including in overseas branches.
    (E) Financial stability. The OCC considers the risk to the 
stability of the United States banking and financial system.
    (F) Deposit concentration limit. The OCC will not approve a 
transaction that would violate the deposit concentration limit in 12 
U.S.C. 1828(c)(13) for interstate merger transactions, as defined in 12 
U.S.C. 1828(c)(13)(C)(i).
    (iii) Community Reinvestment Act--(A) In General. The OCC takes 
into account the filer's Community Reinvestment Act (CRA) record of 
performance in considering an application for a business combination. 
The OCC's conclusion of whether the CRA performance is or is not 
consistent with approval of an application is considered in conjunction 
with the other factors of this section.
    (B) Interstate mergers under 12 U.S.C. 1831u. The OCC considers the 
CRA record of performance of the filer and its resulting bank 
affiliates and the filer's record of compliance with applicable State 
community reinvestment laws when required by 12 U.S.C. 1831u(b)(3).
    (C) CRA Sunshine. A filer must disclose whether it has entered into 
and disclosed a covered agreement, as defined in 12 CFR 35.2, in 
accordance with 12 CFR 35.6 and 35.
    (iv) Interstate mergers under 12 U.S.C. 1831u. The OCC considers 
the standards and requirements contained in 12 U.S.C. 1831u for 
interstate merger transactions between insured banks, when applicable.
    (2) Acquisition and retention of branches. A filer must disclose 
the location of any branch it will acquire and retain in a business 
combination, including approved but unopened branches. The OCC 
considers the acquisition and retention of a branch under the standards 
set out in Sec.  5.30 or Sec.  5.31, as applicable, but it does not 
require a separate application.
    (3) Subsidiaries. (i) A filer must identify any subsidiary, 
financial subsidiary investment, bank service company investment, 
service corporation investment, or other equity investment to be 
acquired in a business combination and state the activities of each 
subsidiary or other company in which the filer would be acquiring an 
investment. The OCC does not require a separate application or notice 
under Sec. Sec.  5.34, 5.35, 5.36, 5.38, 5.39, 5.58, and 5.59.
    (ii) An national bank filer proposing to acquire, through a 
business combination, a subsidiary, financial subsidiary investment, 
bank service company investment, service corporation investment, or 
other equity investment of any entity other than a national bank must 
provide the same information and analysis of the subsidiary's 
activities, or of the investment, that would be required if the filer 
were establishing the subsidiary, or making such investment, pursuant 
to Sec. Sec.  5.34, 5.35, 5.36, or 5.39.
    (iii) A Federal savings association filer proposing to acquire, 
through a business combination, a subsidiary, bank service company 
investment, service corporation investment, or other equity investment 
of any entity other than a Federal savings association must provide the 
same information and analysis of the subsidiary's activities, or of the 
investment, that would be required if the filer were establishing the 
subsidiary, or making such investment, pursuant to Sec. Sec.  5.35, 
5.38, 5.58, or 5.59.
    (4) Interim national bank or interim Federal savings association--
(i) Application. A filer for a business combination that plans to use 
an interim national bank or interim Federal savings association to 
accomplish the transaction must file an application to organize an 
interim national bank or interim Federal savings association as part of 
the application for the related business combination.
    (ii) Conditional approval. The OCC grants conditional preliminary 
approval to form an interim national bank or interim Federal savings 
association when it acknowledges receipt of the application for the 
related business combination.
    (iii) Corporate status. An interim national bank or interim Federal 
savings association becomes a legal entity and may enter into legally 
valid agreements when it has filed, and the OCC has accepted, the 
interim national bank's duly executed articles of association and 
organization certificate or the Federal savings association's charter 
and bylaws. OCC acceptance occurs:
    (A) On the date the OCC advises the interim national bank that its 
articles of association and organization certificate are acceptable or 
advises the interim Federal savings association that its charter and 
bylaws are acceptable; or
    (B) On the date the interim national bank files articles of 
association and an organization certificate that conform to the form 
for those documents provided by the OCC in the Comptroller's Licensing 
Manual or the date the interim Federal savings association files a 
charter and bylaws that conform to the requirements set out in this 
part 5.
    (iv) Other corporate procedures. A filer should consult the 
Comptroller's Licensing Manual to determine what other information is 
necessary to complete the chartering of the interim national bank as a 
national bank or the interim Federal savings association as a Federal 
savings association.
    (5) Nonconforming assets. (i) A filer must identify any 
nonconforming activities and assets, including nonconforming 
subsidiaries, of other institutions involved in the business 
combination that will not be disposed of or discontinued prior to 
consummation of the transaction. The OCC generally requires a national 
bank or Federal savings association to divest or conform nonconforming 
assets, or discontinue nonconforming activities, within a reasonable 
time following the business combination.
    (ii) Any resulting Federal savings association must conform to the 
requirements of sections 5(c) and 10(m) of the Home Owners' Loan Act 
(12 U.S.C. 1464(c) and 1467a(m)) within the time period prescribed by 
the OCC.
    (6) Fiduciary powers. (i) A filer must state whether the resulting 
national bank or Federal savings association intends to exercise 
fiduciary powers pursuant to Sec.  5.26(b).
    (ii) If a filer intends to exercise fiduciary powers after the 
combination and requires OCC approval for such powers, the filer must 
include the information required under Sec.  5.26(e)(2).
    (7) Expiration of approval. Approval of a business combination, and 
conditional approval to form an interim

[[Page 18763]]

national bank or interim Federal savings association, if applicable, 
expires if the business combination is not consummated within six 
months after the date of OCC approval, unless the OCC grants an 
extension of time.
    (8) Adequacy of disclosure. (i) A filer must inform shareholders of 
all material aspects of a business combination and must comply with any 
applicable requirements of the Federal securities laws and securities 
regulations of the OCC. Accordingly, a filer must ensure that all proxy 
and information statements prepared in connection with a business 
combination do not contain any untrue or misleading statement of a 
material fact, or omit to state a material fact necessary in order to 
make the statements made, in the light of the circumstances under which 
they were made, not misleading.
    (ii) A national bank or Federal savings association filer with one 
or more classes of securities subject to the registration provisions of 
section 12(b) or (g) of the Securities Exchange Act of 1934, 15 U.S.C. 
78 l(b) or 78 l(g), must file preliminary proxy material or information 
statements for review with the Director, Bank Advisory, OCC, 
Washington, DC 20219. Any other filer must submit the proxy materials 
or information statements it uses in connection with the combination to 
the appropriate OCC licensing office no later than when the materials 
are sent to the shareholders.
    (f) Exceptions to rules of general applicability--(1) National bank 
or Federal savings association filer--(i) In general. Sections 5.8, 
5.10, and 5.11 do not apply to this section. However, if the OCC 
concludes that an application presents significant or novel policy, 
supervisory, or legal issues, the OCC may determine that some or all 
provisions in Sec. Sec.  5.8, 5.10 and 5.11 apply.
    (ii) Statutory notice. If an application is subject to the Bank 
Merger Act or to another statute that requires notice to the public, a 
national bank or Federal savings association filer must follow the 
public notice requirements contained in 12 U.S.C. 1828(c)(3) or the 
other statute and Sec. Sec.  5.8(b) through 5.8(e), 5.10, and 5.11.
    (2) Interim national bank or interim Federal savings association. 
Sections 5.8, 5.10, and 5.11 do not apply to an application to organize 
an interim national bank or interim Federal savings association. 
However, if the OCC concludes that an application presents significant 
or novel policy, supervisory, or legal issues, the OCC may determine 
that any or all parts of Sec. Sec.  5.8, 5.10, and 5.11 apply. The OCC 
treats an application to organize an interim national bank or interim 
Federal savings association as part of the related application to 
engage in a business combination and does not require a separate public 
notice and public comment process.
    (3) State bank, or State savings association, State trust company, 
or credit union as resulting institution. Sections 5.7 through 5.13 do 
not apply to transactions covered by paragraphs (g)(6) or (g)(7) of 
this section.
    (g) Provisions governing consolidations and mergers with different 
types of entities--(1) Consolidations and mergers under 12 U.S.C. 215 
or 215a of a national bank with other national banks and State banks as 
defined in 12 U.S.C. 215b(1) resulting in a national bank. A national 
bank entering into a consolidation or merger authorized pursuant to 12 
U.S.C. 215 or 215a, respectively, is subject to the approval procedures 
and requirements with respect to treatment of dissenting shareholders 
set forth in those provisions.
    (2) Interstate consolidations and mergers under 12 U.S.C. 215a-1 
resulting in a national bank--(i) With the approval of the OCC, an 
insured national bank may consolidate or merge with an insured out-of-
State bank, as defined in 12 U.S.C. 1831u(g)(8), with the national bank 
as the resulting institution.
    (ii) Unless it has elected to follow the procedures set out in 
paragraph (h) of this section, the resulting national bank entering 
into the consolidation or merger must comply with the procedures of 12 
U.S.C. 215 or 215a, as applicable.
    (iii) Unless it has elected to follow the procedures applicable to 
State bank under paragraph (h)(1)(i), any national bank that will not 
be the resulting bank in a consolidation or merger pursuant to 12 
U.S.C. 215a-1 must comply with the procedures of 12 U.S.C. 215 or 215a, 
as applicable.
    (iv) Corporate existence. The corporate existence of each bank 
participating in a consolidation or merger continues in the resulting 
national bank, and all the rights, franchises, property, appointments, 
liabilities, and other interests of the participating bank are 
transferred to the resulting national bank, as set forth in 12 U.S.C. 
215(b), (e) and (f) or 12 U.S.C. 215a(a), (e), and (f), as applicable.
    (3) Consolidations and mergers of a national bank with Federal 
savings associations under 12 U.S.C. 215c resulting in a national bank. 
(i) With the approval of the OCC, any national bank and any Federal 
savings association may consolidate or merge with a national bank as 
the resulting institution by complying with the following procedures:
    (A) Unless it has elected to follow the procedures set out in 
paragraph (h) of this section, a national bank entering into the 
consolidation or merger must follow the procedures of 12 U.S.C. 215 or 
215a, respectively, as if the Federal savings association were a 
national bank.
    (B)(1) A Federal savings association entering into the 
consolidation or merger must comply with the requirements of paragraph 
(n) of this section and follow the procedures set out in paragraph (o) 
of this section.
    (2) For purposes of this paragraph (g)(3), a combination in which a 
national bank acquires all or substantially all of the assets, or 
assumes all or substantially all of the liabilities, of a Federal 
savings association will be treated as a consolidation for the Federal 
savings association.
    (ii)(A) Unless the national bank has elected to follow the 
procedures set out in paragraph (h) of this section, national bank 
shareholders who dissent from a plan to consolidate may receive in cash 
the value of their national bank shares if they comply with the 
requirements of 12 U.S.C. 215 as if the Federal savings association 
were a national bank.
    (B) Unless the Federal savings association has elected to follow 
the procedures applicable to State savings associations pursuant to 
paragraph (o)(1)(i)(A) of this section, Federal savings association 
shareholders who dissent from a plan to consolidate or merge may 
receive in cash the value of their Federal savings association shares 
if they comply with the requirements of 12 U.S.C. 215 or 215a as if the 
Federal savings association were a national bank.
    (C) Unless the national bank or Federal savings association has 
elected to follow the procedures applicable to State banks or State 
savings associations, respectively, pursuant to paragraph (h)(1)(i) or 
(o)(1)(i)(A) of this section, respectively, the OCC will conduct an 
appraisal or reappraisal of the value of a national bank or Federal 
savings association held by dissenting shareholders in accordance with 
the provisions of 12 U.S.C. 215 or 215a, as applicable, except that the 
costs and expenses of any appraisal or reappraisal may be apportioned 
and assessed by the Comptroller as he or she may deem equitable against 
all or some of the parties. In making this determination the 
Comptroller will consider whether any party has acted arbitrarily or 
not in

[[Page 18764]]

good faith in respect to the rights provided by this paragraph.
    (iii) The consolidation or merger agreement must address the effect 
upon, and the terms of the assumption of, any liquidation account of 
any participating institution by the resulting institution.
    (4) Mergers of a national bank with its nonbank affiliates under 12 
U.S.C. 215a-3 resulting in a national bank. (i) With the approval of 
the OCC, a national bank may merge with one or more of its nonbank 
affiliates, with the national bank as the resulting institution, in 
accordance with the provisions of this paragraph, provided that the law 
of the State or other jurisdiction under which the nonbank affiliate is 
organized allows the nonbank affiliate to engage in such mergers. If 
the national bank is an insured bank, the transaction is also subject 
to approval by the FDIC under the Bank Merger Act, 12 U.S.C. 1828(c).
    (ii) Unless it has elected to follow the procedures set out in 
paragraph (h) of this section, a national bank entering into the merger 
must follow the procedures of 12 U.S.C. 215a as if the nonbank 
affiliate were a State bank, except as otherwise provided herein.
    (iii) A nonbank affiliate entering into the merger must follow the 
procedures for such mergers set out in the law of the State or other 
jurisdiction under which the nonbank affiliate is organized.
    (iv) The rights of dissenting shareholders and appraisal of 
dissenters' shares of stock in the nonbank affiliate entering into the 
merger must be determined in the manner prescribed by the law of the 
State or other jurisdiction under which the nonbank affiliate is 
organized.
    (v) The corporate existence of each institution participating in 
the merger continues in the resulting national bank, and all the 
rights, franchises, property, appointments, liabilities, and other 
interests of the participating institutions are transferred to the 
resulting national bank, as set forth in 12 U.S.C. 215a(a), (e), and 
(f) in the same manner and to the same extent as in a merger between a 
national bank and a State bank under 12 U.S.C. 215a(a), as if the 
nonbank affiliate were a State bank.
    (5) Mergers of an uninsured national bank with its nonbank 
affiliates under 12 U.S.C. 215a-3 resulting in a nonbank affiliate. (i) 
With the approval of the OCC, a national bank that is not an insured 
bank as defined in 12 U.S.C. 1813(h) may merge with one or more of its 
nonbank affiliates, with the nonbank affiliate as the resulting entity, 
in accordance with the provisions of this paragraph, provided that the 
law of the State or other jurisdiction under which the nonbank 
affiliate is organized allows the nonbank affiliate to engage in such 
mergers.
    (ii) Unless it has elected to follow the procedures applicable to 
State banks under paragraph (h)(1)(i) of this section, a national bank 
entering into the merger must follow the procedures of 12 U.S.C. 214a, 
as if the nonbank affiliate were a State bank, except as otherwise 
provided in this section.
    (iii) A nonbank affiliate entering into the merger must follow the 
procedures for such mergers set out in the law of the State or other 
jurisdiction under which the nonbank affiliate is organized.
    (iv)(A) National bank shareholders who dissent from an approved 
plan to merge may receive in cash the value of their national bank 
shares if they comply with the requirements of 12 U.S.C. 214a as if the 
nonbank affiliate were a State bank. The OCC may conduct an appraisal 
or reappraisal of dissenters' shares of stock in a national bank 
involved in the merger if all parties agree that the determination is 
final and binding on each party and agree on how the total expenses of 
the OCC in making the appraisal will be divided among the parties and 
paid to the OCC.
    (B) The rights of dissenting shareholders and appraisal of 
dissenters' shares of stock in the nonbank affiliate involved in the 
merger must be determined in the manner prescribed by the law of the 
State or other jurisdiction under which the nonbank affiliate is 
organized.
    (v) The corporate existence of each entity participating in the 
merger continues in the resulting nonbank affiliate, and all the 
rights, franchises, property, appointments, liabilities, and other 
interests of the participating national bank are transferred to the 
resulting nonbank affiliate as set forth in 12 U.S.C. 214b, in the same 
manner and to the same extent as in a merger between a national bank 
and a State bank under 12 U.S.C. 214a, as if the nonbank affiliate were 
a State bank.
    (6) Consolidation or merger of a Federal savings association with 
another Federal savings association, a national bank, a State bank, a 
State savings bank, a State savings association, a State trust company, 
or a credit union resulting in a Federal savings association. (i) With 
the approval of the OCC, a Federal savings association may consolidate 
or merge with another Federal savings association, a national bank, a 
State bank, a State savings association, a State trust company, or a 
credit union with the Federal savings association as the resulting 
institution by complying with the following procedures:
    (A)(1) The filer Federal savings association must comply with the 
requirements of paragraph (n) of this section and follow the procedures 
set out in paragraph (o) of this section.
    (2) For purposes of this paragraph (g)(3), a combination in which a 
Federal savings association acquires all or substantially all of the 
assets, or assumes all or substantially all of the liabilities, of 
another other participating institution will be treated as a 
consolidation for the acquiring Federal savings association and as a 
consolidation by a Federal savings association whose assets are 
acquired, if any.
    (B)(1) Unless it has elected to follow the procedures applicable to 
State banks under paragraph (h)(1)(i) of this section, a national bank 
entering into a merger or consolidation with a Federal savings 
association when the resulting institution will be a Federal savings 
association must comply with the requirements of 12 U.S.C. 214a and 12 
U.S.C. 214c as if the Federal savings association were a State bank. 
However, for these purposes the references in 12 U.S.C. 214c to ``law 
of the State in which such national banking association is located'' 
and ``any State authority'' mean ``laws and regulations governing 
Federal savings associations'' and ``Office of the Comptroller of the 
Currency'' respectively.
    (2) Unless the national bank has elected to follow the procedures 
applicable to State banks under paragraph (h)(1)(i) of this section, 
national bank shareholders who dissent from a plan to merge or 
consolidate may receive in cash the value of their national bank shares 
if they comply with the requirements of 12 U.S.C. 214a as if the 
Federal savings association were a State bank. The OCC will conduct an 
appraisal or reappraisal of the value of the national bank shares held 
by dissenting shareholders in accordance with the provisions of 12 
U.S.C. 214a, except that the costs and expenses of any appraisal or 
reappraisal may be apportioned and assessed by the Comptroller as he or 
she may deem equitable against all or some of the parties. In making 
this determination the Comptroller will consider whether any party has 
acted arbitrarily or not in good faith in respect to the rights 
provided by this paragraph.
    (C)(1) A Federal savings association entering into a merger or 
consolidation with another Federal savings association when the 
resulting institution will be the other Federal savings association

[[Page 18765]]

must comply with the requirements of paragraph (n) of this section and 
the procedures of paragraph (o) of this section.
    (2) Unless the Federal savings association has elected to follow 
the procedures applicable to State savings associations under paragraph 
(o)(1)(i)(A), Federal savings association shareholders who dissent from 
a plan to merge or consolidate may receive in cash the value of their 
Federal savings association shares if they comply with the requirements 
of 12 U.S.C. 214a as if the other Federal savings association were a 
State bank. The OCC will conduct an appraisal or reappraisal of the 
value of the Federal savings association shares held by dissenting 
shareholders in accordance with the provisions of 12 U.S.C. 214a, 
except that the costs and expenses of any appraisal or reappraisal may 
be apportioned and assessed by the Comptroller as he or she may deem 
equitable against all or some of the parties. In making this 
determination the Comptroller will consider whether any party has acted 
arbitrarily or not in good faith in respect to the rights provided by 
this paragraph.
    (3) Unless the Federal savings association has elected to follow 
the procedures applicable to State savings associations under paragraph 
(o)(1)(i)(A), the plan of merger or consolidation must provide the 
manner of disposing of the shares of the resulting Federal savings 
association not taken by the dissenting shareholders of the Federal 
savings association.
    (D)(1) A State bank, State savings association, State trust 
company, or credit union entering into a consolidation or merger with a 
Federal savings association when the resulting institution will be a 
Federal savings association must follow the procedures for such 
consolidations or mergers set out in the law of the State or other 
jurisdiction under which the State bank, State savings association, 
State trust company, or credit union is organized.
    (2) The rights of dissenting shareholders and appraisal of 
dissenters' shares of stock in the State bank, State savings 
association, or State trust company, entering into the consolidation or 
merger will be determined in the manner prescribed by the law of the 
State or other jurisdiction under which the State bank, State savings 
association, or State trust company is organized.
    (ii) The consolidation or merger agreement must address the effect 
upon, and the terms of the assumption of, any liquidation account of 
any participating institution by the resulting institution.
    (7) Consolidation or merger under 12 U.S.C. 214a of a national bank 
with a State bank resulting in a State bank as defined in 12 U.S.C. 
214(a)--(i) In general. Prior OCC approval is not required for the 
merger or consolidation of a national bank with a State bank as defined 
in 12 U.S.C. 214(a). Termination of a national bank's existence and 
status as a national banking association is automatic, and its charter 
cancelled, upon completion of the statutory and regulatory requirements 
for engaging in the consolidation or merger and consummation of the 
consolidation or merger.
    (ii) Procedures. A national bank desiring to merge or consolidate 
with a State bank as defined in 12 U.S.C. 214(a) when the resulting 
institution will be a State bank must comply with the requirements and 
follow the procedures of 12 U.S.C. 214a and 214c and must provide 
notice to the OCC under paragraph (k) of this section.
    (iii) Dissenters' rights and appraisal procedures. National bank 
shareholders who dissent from a plan to merge or consolidate may 
receive in cash the value of their national bank shares if they comply 
with the requirements of 12 U.S.C. 214a. The OCC conducts an appraisal 
or reappraisal of the value of the national bank shares held by 
dissenting shareholders as provided for in 12 U.S.C. 214a.
    (iv) Liquidation account. The consolidation or merger agreement 
must address the effect upon, and the terms of the assumption of, any 
liquidation account of any participating institution by the resulting 
institution.
    (8) Interstate consolidations and mergers between an insured 
national bank and an insured State bank resulting in a State bank.--(i) 
In general. Prior OCC approval is not required for the merger or 
consolidation of an insured national bank with an insured out-of-state 
State bank, as defined in 12 U.S.C. 1831u(g)(8), with the State bank as 
the resulting institution, that has been approved by the appropriate 
Federal banking agency for the State bank. Termination of a national 
bank's existence and status as a national banking association is 
automatic, and its charter cancelled, upon completion of the statutory 
and regulatory requirements for engaging in the consolidation or merger 
and consummation of the consolidation or merger.
    (ii) Procedures. Unless it has elected to follow the procedures 
applicable to State banks under paragraph (h)(1)(i) of this section, 
the national bank entering into the consolidation or merger must comply 
with the procedures of 12 U.S.C. 214a, as applicable.
    (iii) Notice. The national bank must provide a notice to the OCC 
under paragraph (k) of this section.
    (9) Consolidation or merger of a Federal savings association with a 
State bank, State savings bank, State savings association, State trust 
company, or credit union resulting in a State bank, State savings bank, 
State savings association, State trust company, or credit union--(i) 
Policy. Prior OCC approval is not required for the merger or 
consolidation of a Federal savings association with a State bank, State 
savings bank, State savings association, State trust company, or credit 
union when the resulting institution will be a State institution or 
credit union. Termination of a national bank's or Federal savings 
association's existence and status as a national banking association or 
Federal savings association is automatic, and its charter cancelled, 
upon completion of the statutory and regulatory requirements for 
engaging in the consolidation or merger and consummation of the 
consolidation or merger.
    (ii) Procedures. (A) A Federal savings association desiring to 
merge or consolidate with a State bank, State savings bank, State 
savings association, State trust company, or credit union when the 
resulting institution will be a State institution or credit union must 
comply with the requirements of paragraph (n) of this section and the 
procedures of paragraph (o) of this section and must provide notice to 
the OCC under paragraph (k) of this section.
    (B) For purposes of this paragraph (g)(9), a combination in which a 
State bank, State savings bank, State savings association, State trust 
company, or credit union acquires all or substantially all of the 
assets, or assumes all or substantially all of the liabilities, of a 
Federal savings association must be treated as a consolidation by the 
Federal savings association.
    (iii) Dissenters' rights and appraisal procedures. (A) Unless the 
Federal savings association has elected to follow the procedures 
applicable to State savings associations under paragraph (o)(1)(i)(A), 
Federal savings association shareholders who dissent from a plan to 
merge or consolidate may receive in cash the value of their Federal 
savings association shares if they comply with the requirements of 12 
U.S.C. 214a as if the Federal savings association were a national bank. 
The OCC conducts an appraisal or reappraisal of the value of the 
Federal savings association shares held by dissenting shareholders only 
if all parties agree that the determination

[[Page 18766]]

will be final and binding. The parties also must agree on how the total 
expenses of the OCC in making the appraisal will be divided among the 
parties and paid to the OCC.
    (B) Unless the Federal savings association has elected to follow 
the procedures applicable to State savings associations under paragraph 
(o)(1)(i)(A), the plan of merger or consolidation must provide the 
manner of disposing of the shares of the resulting State institution 
not taken by the dissenting shareholders of the Federal savings 
association.
    (iv) Liquidation account. The consolidation or merger agreement 
must address the effect upon, and the terms of the assumption of, any 
liquidation account of any participating institution by the resulting 
institution.
    (h) Procedural requirements for national bank combinations--(1) 
Permissible elections. A national bank participating in a combination 
pursuant to paragraph (g)(2), (g)(3), (g)(4), (g)(5), (g)(6), or (g)(8) 
of this section may elect to follow with respect to the combination:
    (i) The procedures applicable to a State bank chartered by the 
State where the national bank's main office is located; or
    (ii) Paragraph (p) of this section, if applicable.
    (2) Rules of Construction. For purposes of paragraph (h)(1) of this 
section:
    (i) Any references to a State agency in the applicable State 
procedures should be read as referring to the OCC; and
    (ii) Unless otherwise specified in Federal law, all filings 
required by the applicable State procedures must be made to the OCC.
    (i) Expedited review for business reorganizations and streamlined 
applications. A filing that qualifies as a business reorganization as 
defined in paragraph (d)(3) of this section, or a filing that qualifies 
as a streamlined application as described in paragraph (j) of this 
section, is deemed approved by the OCC as of the 15th day after the 
close of the comment period, unless the OCC notifies the filer that the 
filing is not eligible for expedited review, or the expedited review 
process is extended, under Sec.  5.13(a)(2). An application under this 
paragraph must contain all necessary information for the OCC to 
determine if it qualifies as a business reorganization or streamlined 
application.
    (j) Streamlined applications. (1) A filer may qualify for a 
streamlined business combination application in the following 
situations:
    (i) At least one party to the transaction is an eligible bank or 
eligible savings association, and all other parties to the transaction 
are eligible banks, eligible savings associations, or eligible 
depository institutions, the resulting national bank or resulting 
Federal savings association will be well capitalized immediately 
following consummation of the transaction, and the total assets of the 
target institution are no more than 50 percent of the total assets of 
the acquiring bank or Federal savings association, as reported in each 
institution's Consolidated Report of Condition and Income filed for the 
quarter immediately preceding the filing of the application;
    (ii) The acquiring bank or Federal savings association is an 
eligible bank or eligible savings association, the target bank or 
savings association is not an eligible bank, eligible savings 
association, or an eligible depository institution, the resulting 
national bank or resulting Federal savings association will be well 
capitalized immediately following consummation of the transaction, and 
the filers in a prefiling communication request and obtain approval 
from the appropriate OCC licensing office to use the streamlined 
application;
    (iii) The acquiring bank or Federal savings association is an 
eligible bank or eligible savings association, the target bank or 
savings association is not an eligible bank, eligible savings 
association, or an eligible depository institution, the resulting bank 
or resulting Federal savings association will be well capitalized 
immediately following consummation of the transaction, and the total 
assets acquired do not exceed 10 percent of the total assets of the 
acquiring national bank or acquiring Federal savings association, as 
reported in each institution's Consolidated Report of Condition and 
Income filed for the quarter immediately preceding the filing of the 
application; or
    (iv) In the case of a transaction under paragraph (g)(4) of this 
section, the acquiring bank is an eligible bank, the resulting national 
bank will be well capitalized immediately following consummation of the 
transaction, the filers in a prefiling communication request and obtain 
approval from the appropriate OCC licensing office to use the 
streamlined application, and the total assets acquired do not exceed 10 
percent of the total assets of the acquiring national bank, as reported 
in the bank's Consolidated Report of Condition and Income filed for the 
quarter immediately preceding the filing of the application.
    (2) Notwithstanding paragraph (j)(1) of this section, a filer does 
not qualify for a streamlined business combination application if the 
transaction is part of a conversion under part 192 of this chapter.
    (3) When a business combination qualifies for a streamlined 
application, the filer should consult the Comptroller's Licensing 
Manual to determine the abbreviated application information required by 
the OCC. The OCC encourages prefiling communications between the filers 
and the appropriate OCC licensing office before filing under paragraph 
(j) of this section.
    (k) Exit notice to OCC--(1) Notice required. As provided in 
paragraphs (g)(7)(ii), (g)(8)(iii), and (g)(9)(ii) of this section, a 
national bank or Federal savings association engaging in a 
consolidation or merger in which it is not the filer and the resulting 
institution must file a notice rather than an application to the 
appropriate OCC licensing office advising of its intention.
    (2) Timing of notice. The national bank or Federal savings 
association must submit the notice at the time the application to merge 
or consolidate is filed with the responsible agency under the Bank 
Merger Act, 12 U.S.C. 1828(c), or if there is no such filing then no 
later than 30 days prior to the effective date of the merger or 
consolidation.
    (3) Content of notice. The notice must include the following: 
(i)(A) A short description of the material features of the transaction, 
the identity of the acquiring institution, the identity of the State or 
Federal regulator to whom the application was made, and the date of the 
application; or
    (B) A copy of a filing made with another Federal or State 
regulatory agency seeking approval from that agency for the transaction 
under the Bank Merger Act or other applicable statute;
    (ii) The planned consummation date for the transaction;
    (iii) Information to demonstrate compliance by the national bank or 
Federal savings association with applicable requirements to engage in 
the transactions (e.g., board approval or shareholder or accountholder 
requirements); and
    (iv) If the national bank or Federal savings association submitting 
the notice maintains a liquidation account established pursuant to part 
192 of this chapter, the notice must state that the resulting 
institution will assume such liquidation account.
    (4) Termination of status. The national bank or Federal savings 
association must advise the OCC when

[[Page 18767]]

the transaction is about to be consummated. Termination of a national 
bank's or Federal savings association's existence and status as a 
national banking association or Federal savings association is 
automatic, and its charter cancelled, upon completion of the statutory 
and regulatory requirements and consummation of the consolidation or 
merger. When the national bank or Federal savings association files the 
notice under paragraph (k)(2) of this section, the OCC provides 
instructions to the national bank or Federal savings association for 
terminating its status as a national bank or Federal savings, including 
surrendering its charter to the OCC immediately after consummation of 
the transaction.
    (5) Expiration. If the action contemplated by the notice is not 
completed within six months after the OCC's receipt of the notice, a 
new notice must be submitted to the OCC, unless the OCC grants an 
extension of time.
    (l) Mergers and consolidations; transfer of assets and liabilities 
to the resulting institution. (1) In any consolidation or merger in 
which the resulting institution is a national bank or Federal savings 
association, on the effective date of the merger or consolidation, all 
assets and property (real, personal and mixed, tangible and intangible, 
choses in action, rights, and credits) then owned by each participating 
institution or which would inure to any of them, immediately by 
operation of law and without any conveyance, transfer, or further 
action, become the property of the resulting national bank or Federal 
savings association. The resulting national bank or Federal savings 
association is deemed to be a continuation of the entity of each 
participating institution, and will succeed to such rights and 
obligations of each participating institution and the duties and 
liabilities connected therewith.
    (2) The authority in paragraph (l)(1) of this section is in 
addition to any authority granted by applicable statutes for specific 
transactions and is subject to the National Bank Act, the Home Owners' 
Loan Act, and other applicable statutes.
    (m) Certification of combination; effective date. (1) When a 
national bank or Federal savings association is the filer and will be 
the resulting entity in a consolidation or merger, after receiving 
approval from the OCC, it must complete any remaining steps needed to 
complete the transaction, provide the OCC with a certification that all 
other required regulatory or shareholder approvals have been obtained, 
and inform the OCC of the planned consummation date.
    (2) When the transaction is consummated, the filer must notify the 
OCC of the consummation date. The OCC will issue a letter certifying 
that the combination was effective on the date specified in the filer's 
notice.
    (n) Authority for and certain limits on business combinations and 
other transactions by Federal savings associations. (1) Federal savings 
associations may enter into business combinations only in accordance 
with this section, the Bank Merger Act, and sections 5(d)(3)(A) and 
10(s) of the Home Owners' Loan Act.
    (2) A Federal savings association may consolidate or merge with 
another depository institution, a State trust company or a credit 
union, may engage in another business combination listed in paragraphs 
(d)(2)(iv) and (v) of this section, or may engage in any other 
combination listed in paragraph (d)(10), provided that:
    (i) The combination is in compliance with, and receives all 
approvals required under, any applicable statutes and regulations;
    (ii) Any resulting Federal savings association meets the 
requirements for insurance of accounts; and
    (iii) A consolidation or merger involving a mutual savings 
association or the transfer of all or substantially all of the deposits 
of a mutual savings association must result in a mutually held 
depository institution that is insured by the FDIC, unless:
    (A) The transaction is approved under part 192 governing mutual to 
stock conversions;
    (B) The transaction involves a mutual holding company 
reorganization under 12 U.S.C. 1467a(o) or a similar transaction under 
State law; or
    (C) The transaction is part of a voluntary liquidation for which 
the OCC has provided non-objection under Sec.  5.48.
    (3) Where the resulting institution is a Federal mutual savings 
association, the OCC may approve a temporary increase in the number of 
directors of the resulting institution provided that the association 
submits a plan for bringing the board of directors into compliance with 
the requirements of Sec.  5.21(e) within a reasonable period of time.
    (4)(i) The Federal savings associations described in paragraph 
(n)(4)(ii) of this section below must provide affected accountholders 
with a notice of a proposed account transfer and an option of retaining 
the account in the transferring Federal savings association. The notice 
must allow affected accountholders at least 30 days to consider whether 
to retain their accounts in the transferring Federal savings 
association.
    (ii) The following savings associations must provide the notices:
    (A) A Federal mutual savings association transferring account 
liabilities to an institution the accounts of which are not insured by 
the Deposit Insurance Fund or the National Credit Union Share Insurance 
Fund; and
    (B) Any Federal mutual savings association transferring account 
liabilities to a stock form depository institution.
    (o) Procedural requirements for Federal savings association 
approval of combinations--(1) In general--(i) Permissible elections. A 
Federal savings association participating in a combination may elect to 
follow the applicable procedures with respect to the combination:
    (A) The procedures applicable to a State savings association 
chartered by the State where the Federal savings association's home 
office is located: or
    (B) The standard procedures provided in paragraph (o)(2) of this 
section.
    (ii) Rules of Construction. For purposes of paragraph (o)(1)(i) of 
this section:
    (A) Any references to a State agency in the applicable State 
procedures should be read as referring to the OCC; and
    (B) Unless otherwise specified in Federal law, all filings required 
by the applicable State procedures must be made to the OCC.
    (2) Standard procedures--(i) Board approval. Before a Federal 
savings association files a notice or application for any consolidation 
or merger, the combination and combination agreement must be approved 
by majority vote of the entire board of each constituent Federal 
savings association in the case of Federal stock savings associations 
or a two-thirds vote of the entire board of each constituent Federal 
savings association in the case of Federal mutual savings associations.
    (ii) Shareholder vote--(A) General rule. Except as otherwise 
provided in this paragraph (o)(2)(ii), an affirmative vote of two-
thirds of the outstanding voting stock of any constituent Federal stock 
savings association is required for approval of a consolidation or 
merger. If any class of shares is entitled to vote as a class pursuant 
to Sec.  5.22, an affirmative vote of a majority of the shares of each 
voting class and two-thirds of the total voting shares is required. The 
required vote must be taken at a meeting of the savings association.

[[Page 18768]]

    (B) General exception. Stockholders of the resulting Federal stock 
savings association need not authorize a consolidation or merger if the 
transaction meets the requirements of paragraph (p) of this section.
    (C) Exceptions for certain combinations involving an interim 
association. Stockholders of a Federal stock savings association need 
not authorize by a two-thirds affirmative vote consolidations or 
mergers involving an interim Federal savings association or interim 
State savings association when the resulting Federal stock savings 
association is acquired pursuant to the regulations of the Board of 
Governors of the Federal Reserve System at 12 CFR 238.15(e) (relating 
to the creation of a savings and loan holding company by a savings 
association). In those cases, an affirmative vote of 50 percent of the 
shares of the outstanding voting stock of the Federal stock savings 
association plus one affirmative vote is required. If any class of 
shares is entitled to vote as a class pursuant to Sec.  5.22(g), an 
affirmative vote of 50 percent of the shares of each voting class plus 
one affirmative vote is required. The required votes must be taken at a 
meeting of the association.
    (3) Change of name or home office. If the name of the resulting 
Federal savings association or the location of the home office of the 
resulting Federal savings association will change as a result of the 
business combination, the resulting Federal savings association must 
amend its charter accordingly.
    (4) Mutual member vote. Notwithstanding any other provision of this 
section, the OCC may require that a consolidation, merger or other 
business combination be submitted to the voting members of any mutual 
savings association participating in the proposed transaction at duly 
called meetings and that the transaction, to be effective, must be 
approved by such voting members.
    (p) Exception to voting requirements. Shareholders of a resulting 
national bank or Federal stock savings association need not authorize a 
consolidation or merger if:
    (1) Either:
    (i) The transaction does not involve an interim bank or an interim 
savings association; or
    (ii) The transaction involves an interim bank or an interim savings 
association and the existing shareholders of the national bank or 
Federal stock savings association will directly hold the shares of the 
resulting national bank or Federal stock savings association;
    (2) The national bank's articles of association or the Federal 
stock savings association's charter, as applicable, is not changed;
    (3) Each share of stock outstanding immediately prior to the 
effective date of the consolidation or merger is to be an identical 
outstanding share or a treasury share of the resulting national bank or 
Federal stock savings association after such effective date; and
    (4) Either:
    (i) No shares of voting stock of the resulting national bank or 
Federal stock savings association and no securities convertible into 
such stock are to be issued or delivered under the plan of combination; 
or
    (ii) The authorized unissued shares or the treasury shares of 
voting stock of the resulting national bank or Federal stock savings 
association to be issued or delivered under the plan of merger or 
consolidation, plus those initially issuable upon conversion of any 
securities to be issued or delivered under such plan, do not exceed 20 
percent of the total shares of voting stock of such national bank or 
Federal stock savings association outstanding immediately prior to the 
effective date of the consolidation or merger.
0
24. Amend Sec.  5.34 by:
0
a. In paragraph (a), removing ``3101 et seq.'' and adding in its place 
``3102(b)'';
0
b. In paragraph (c), removing the phrase ``(e)(5)(i)(B) of this section 
shall apply'' and adding in its place the phrase ``(f)(1)(ii) of this 
section applies'';
0
c. Revising paragraph (d);
0
d. In paragraphs (e)(1)(i)(B), (e)(3), and (e)(4)(ii), removing the 
word ``state'' and adding in its place the word ``State'' each time it;
0
e. Revising paragraph (e)(2)(i)(A);
0
f. In paragraph (e)(2)(i)(C), removing the phrase ``generally accepted 
accounting principles (GAAP)'' and adding in its place the word 
``GAAP'';
0
g. In paragraph (e)(2)(ii) introductory text, removing the word 
``subsidiaries'' and adding in its place the word ``entities'';
0
h. Removing the word ``and'' in paragraph (e)(2)(ii)(A);
0
 i. Removing the period and adding in its place ``; and'' in paragraph 
(e)(2)(ii)(B);
0
 j. Adding paragraph (e)(2)(ii)(C);
0
k. In paragraph (e)(2)(iii)(B), removing the word ``shall'' and adding 
in its place the word ``may'';
0
 l. In paragraphs (e)(4)(i) and (e)(4)(ii), removing the word ``shall'' 
and adding in its place the word ``will'';
0
m. Removing paragraph (e)(7);
0
n. Redesignating paragraphs (e)(5) and (e)(6) as paragraphs (f) and 
(g), respectively ; and
0
o. Revising newly redesignated paragraph (f).
    The addition and revisions read as follows.


Sec.  5.34   Operating subsidiaries of a national bank.

* * * * *
    (d) Definition. For purposes of this section, authorized product 
means a product that would be defined as insurance under section 302(c) 
of the Gramm-Leach-Bliley Act (15 U.S.C. 6712) that, as of January 1, 
1999, the OCC had determined in writing that national banks may provide 
as principal or national banks were in fact lawfully providing the 
product as principal, and as of that date no court of relevant 
jurisdiction had, by final judgment, overturned a determination by the 
OCC that national banks may provide the product as principal. An 
authorized product does not include title insurance, or an annuity 
contract the income of which is subject to treatment under section 72 
of the Internal Revenue Code of 1986 (26 U.S.C. 72).
    (e) * * *
    (2) * * *
    (i) * * *
    (A) The bank has the ability to control the management and 
operations of the subsidiary, and no other person or entity has the 
ability to exercise effective control or influence over the management 
or operations of the subsidiary to an extent equal to or greater than 
that of the bank or an operating subsidiary thereof;
* * * * *
    (ii) * * *
    (C) A trust formed for purposes of securitizing assets held by the 
bank as part of its banking business.
* * * * *
    (f) Procedures--(1) Application required. (i) Except for an 
operating subsidiary that qualifies for the notice procedures in 
paragraph (f)(2) of this section or is exempt from application or 
notice requirements under paragraph (f)(6) of this section, a national 
bank must first submit an application to, and receive prior approval 
from, the OCC to establish or acquire an operating subsidiary or to 
perform a new activity in an existing operating subsidiary.
    (ii) The application must explain, as appropriate, how the bank 
``controls'' the enterprise, describing in full detail structural 
arrangements where control is based on factors other than bank 
ownership of more than 50 percent of the voting interest of the 
subsidiary and the ability to control the management and operations of 
the subsidiary by holding voting interests sufficient to select the 
number of directors needed to

[[Page 18769]]

control the subsidiary's board and to select and terminate senior 
management. In the case of a limited partnership or limited liability 
company that does not qualify for the notice procedures set forth in 
paragraph (f)(2) of this section, the bank must provide a statement 
explaining why it is not eligible. The application also must include a 
complete description of the bank's investment in the subsidiary, the 
proposed activities of the subsidiary, the organizational structure and 
management of the subsidiary, the relations between the bank and the 
subsidiary, and other information necessary to adequately describe the 
proposal. To the extent that the application relates to the initial 
affiliation of the bank with a company engaged in insurance activities, 
the bank must describe the type of insurance activity in which the 
company is engaged and has present plans to conduct. The bank must also 
list for each State the lines of business for which the company holds, 
or will hold, an insurance license, indicating the State where the 
company holds a resident license or charter, as applicable. The 
application must state whether the operating subsidiary will conduct 
any activity at a location other than the main office or a previously 
approved branch of the bank. The OCC may require a filer to submit a 
legal analysis if the proposal is novel, unusually complex, or raises 
substantial unresolved legal issues. In these cases, the OCC encourages 
filers to have a prefiling meeting with the OCC. Any bank receiving 
approval under this paragraph is deemed to have agreed that the 
subsidiary will conduct the activity in a manner consistent with 
published OCC guidance.
    (2) Notice process only for certain qualifying filings. (i) Except 
for an operating subsidiary that is exempt from application or notice 
procedures under paragraph (f)(6) of this section, a national bank that 
is well capitalized and well managed, as defined in Sec.  5.3, may 
establish or acquire an operating subsidiary, or perform a new activity 
in an existing operating subsidiary, by providing the appropriate OCC 
licensing office written notice prior to, or within 10 days after, 
acquiring or establishing the subsidiary, or commencing the new 
activity, if:
    (A) The activity is listed in paragraph (f)(5) of this section or, 
except as provided in paragraph (f)(2)(ii) of this section, the 
activity is substantively the same as a previously approved activity, 
as defined in Sec.  5.3, and the activity will be conducted in 
accordance with the same terms and conditions applicable to the 
previously approved activity;
    (B) The entity is a corporation, limited liability company, limited 
partnership, or trust; and
    (C) The bank or an operating subsidiary thereof:
    (1) Has the ability to control the management and operations of the 
subsidiary and no other person or entity has the ability to exercise 
effective control or influence over the management or operations of the 
subsidiary to an extent equal to or greater than that of the bank or an 
operating subsidiary thereof. The ability to control the management and 
operations means:
    (i) In the case of a subsidiary that is a corporation, the bank or 
an operating subsidiary thereof holds voting interests sufficient to 
select the number of directors needed to control the subsidiary's board 
and to select and terminate senior management;
    (ii) In the case of a subsidiary that is a limited partnership, the 
bank or an operating subsidiary thereof has the ability to control the 
management and operations of the subsidiary by controlling the 
selection and termination of senior management;
    (iii) In the case of a subsidiary that is a limited liability 
company, the bank or an operating subsidiary thereof has the ability to 
control the management and operations of the subsidiary by controlling 
the selection and termination of senior management; or
    (iv) In the case of a subsidiary that is a trust, the bank or an 
operating subsidiary thereof has the ability to replace the trustee at 
will;
    (2) Holds more than 50 percent of the voting, or equivalent, 
interests in the subsidiary and:
    (i) In the case of a subsidiary that is a limited partnership, the 
bank or an operating subsidiary thereof is the sole general partner of 
the limited partnership, provided that under the partnership agreement, 
limited partners have no authority to bind the partnership by virtue 
solely of their status as limited partners;
    (ii) In the case of a subsidiary that is a limited liability 
company, the bank or an operating subsidiary thereof is the sole 
managing member of the limited liability company, provided that under 
the limited liability company agreement, other limited liability 
company members have no authority to bind the limited liability company 
by virtue solely of their status as members; or
    (iii) In the case of a subsidiary that is a trust, the bank or an 
operating subsidiary thereof is the sole beneficial owner of the trust; 
and
    (3) Is required to consolidate its financial statements with those 
of the subsidiary under GAAP.
    (ii) A national bank must file an application under paragraph 
(f)(1) of this section if a State has or will charter or license the 
proposed operating subsidiary as a bank, trust company, or savings 
association.
    (iii) The written notice must include a complete description of the 
bank's investment in the subsidiary and of the activity conducted and a 
representation and undertaking that the activity will be conducted in 
accordance with OCC policies contained in guidance issued by the OCC 
regarding the activity. To the extent that the notice relates to the 
initial affiliation of the bank with a company engaged in insurance 
activities, the bank must describe the type of insurance activity in 
which the company is engaged and has present plans to conduct. The bank 
also must list for each State the lines of business for which the 
company holds, or will hold, an insurance license, indicating the State 
where the company holds a resident license or charter, as applicable. 
Any bank receiving approval under this paragraph is deemed to have 
agreed that the subsidiary will conduct the activity in a manner 
consistent with published OCC guidance.
    (3) Exceptions to rules of general applicability. Sections 5.8, 
5.10, and 5.11 do not apply to this section. However, if the OCC 
concludes that an application presents significant or novel policy, 
supervisory, or legal issues, the OCC may determine that some or all 
provisions in Sec. Sec.  5.8, 5.10, and 5.11 apply.
    (4) OCC review and approval. The OCC reviews a national bank's 
application to determine whether the proposed activities are legally 
permissible under Federal banking laws and to ensure that the proposal 
is consistent with safe and sound banking practices and OCC policy and 
does not endanger the safety or soundness of the parent national bank. 
As part of this process, the OCC may request additional information and 
analysis from the filer.
    (5) Activities eligible for notice. The following activities 
qualify for the notice procedures in paragraph (f)(2) of this section, 
provided the activity is conducted pursuant to the same terms and 
conditions as would be applicable if the activity were conducted 
directly by a national bank:
    (i) Holding and managing assets acquired by the parent bank or its 
operating subsidiaries, including investment assets and property 
acquired

[[Page 18770]]

by the bank through foreclosure or otherwise in good faith to 
compromise a doubtful claim, or in the ordinary course of collecting a 
debt previously contracted;
    (ii) Providing services to or for the bank or its affiliates, 
including accounting, auditing, appraising, advertising and public 
relations, and financial advice and consulting;
    (iii) Making loans or other extensions of credit, and selling money 
orders, savings bonds, and travelers checks;
    (iv) Purchasing, selling, servicing, or warehousing loans or other 
extensions of credit, or interests therein;
    (v) Providing courier services between financial institutions;
    (vi) Providing management consulting, operational advice, and 
services for other financial institutions;
    (vii) Providing check guaranty, verification and payment services;
    (viii) Providing data processing, data warehousing and data 
transmission products, services, and related activities and facilities, 
including associated equipment and technology, for the bank or its 
affiliates;
    (ix) Acting as investment adviser (including an adviser with 
investment discretion) or financial adviser or counselor to 
governmental entities or instrumentalities, businesses, or individuals, 
including advising registered investment companies and mortgage or real 
estate investment trusts, furnishing economic forecasts or other 
economic information, providing investment advice related to futures 
and options on futures, and providing consumer financial counseling;
    (x) Providing tax planning and preparation services;
    (xi) Providing financial and transactional advice and assistance, 
including advice and assistance for customers in structuring, 
arranging, and executing mergers and acquisitions, divestitures, joint 
ventures, leveraged buyouts, swaps, foreign exchange, derivative 
transactions, coin and bullion, and capital restructurings;
    (xii) Underwriting and reinsuring credit related insurance to the 
extent permitted under section 302 of the Gramm-Leach-Bliley Act (15 
U.S.C. 6712);
    (xiii) Leasing of personal property and acting as an agent or 
adviser in leases for others;
    (xiv) Providing securities brokerage or acting as a futures 
commission merchant, and providing related credit and other related 
services;
    (xv) Underwriting and dealing, including making a market, in bank 
permissible securities and purchasing and selling as principal, asset 
backed obligations;
    (xvi) Acting as an insurance agent or broker, including title 
insurance to the extent permitted under section 303 of the Gramm-Leach-
Bliley Act (15 U.S.C. 6713);
    (xvii) Reinsuring mortgage insurance on loans originated, 
purchased, or serviced by the bank, its subsidiaries, or its 
affiliates, provided that if the subsidiary enters into a quota share 
agreement, the subsidiary assumes less than 50 percent of the aggregate 
insured risk covered by the quota share agreement. A ``quota share 
agreement'' is an agreement under which the reinsurer is liable to the 
primary insurance underwriter for an agreed upon percentage of every 
claim arising out of the covered book of business ceded by the primary 
insurance underwriter to the reinsurer;
    (xviii) Acting as a finder pursuant to 12 CFR 7.1002 to the extent 
permitted by published OCC precedent for national banks; \2\
---------------------------------------------------------------------------

    \2\ See, e.g., the OCC's monthly publication ``Interpretations 
and Actions.'' Beginning with the May 1996 issue, electronic 
versions of ``Interpretations and Actions'' are available at 
www.occ.gov.
---------------------------------------------------------------------------

    (xix) Offering correspondent services to the extent permitted by 
published OCC precedent for national banks;
    (xx) Acting as agent or broker in the sale of fixed or variable 
annuities;
    (xxi) Offering debt cancellation or debt suspension agreements;
    (xxii) Providing real estate settlement, closing, escrow, and 
related services; and real estate appraisal services for the 
subsidiary, parent bank, or other financial institutions;
    (xxiii) Acting as a transfer or fiscal agent;
    (xxiv) Acting as a digital certification authority to the extent 
permitted by published OCC precedent for national banks, subject to the 
terms and conditions contained in that precedent;
    (xxv) Providing or selling public transportation tickets, event and 
attraction tickets, gift certificates, prepaid phone cards, promotional 
and advertising material, postage stamps, and Electronic Benefits 
Transfer (EBT) script, and similar media, to the extent permitted by 
published OCC precedent for national banks, subject to the terms and 
conditions contained in that precedent;
    (xvi) Providing data processing, and data transmission services, 
facilities (including equipment, technology, and personnel), databases, 
advice and access to such services, facilities, databases and advice, 
for the parent bank and for others, pursuant to 12 CFR 7.5006 to the 
extent permitted by published OCC precedent for national banks;
    (xxvii) Providing bill presentment, billing, collection, and 
claims-processing services;
    (xxviii) Providing safekeeping for personal information or valuable 
confidential trade or business information, such as encryption keys, to 
the extent permitted by published OCC precedent for national banks;
    (xxix) Providing payroll processing;
    (xxx) Providing branch management services;
    (xxxi) Providing merchant processing services except when the 
activity involves the use of third parties to solicit or underwrite 
merchants; and
    (xxxii) Performing administrative tasks involved in benefits 
administration.
    (6) No application or notice required. A national bank may acquire 
or establish an operating subsidiary, or perform a new activity in an 
existing operating subsidiary, without filing an application or 
providing notice to the OCC, if the bank is well managed and well 
capitalized and the:
    (i) Activities of the new subsidiary are limited to those 
activities previously reported by the bank in connection with the 
establishment or acquisition of a prior operating subsidiary;
    (ii) Activities in which the new subsidiary will engage continue to 
be legally permissible for the subsidiary;
    (iii) Activities of the new subsidiary will be conducted in 
accordance with any conditions imposed by the OCC in approving the 
conduct of these activities for any prior operating subsidiary of the 
bank; and
    (iv) The standards set forth in paragraphs (f)(2)(i)(B) and (C) of 
this section are satisfied.
    (7) Fiduciary powers. (i) If an operating subsidiary proposes to 
accept fiduciary appointments for which fiduciary powers are required, 
such as acting as trustee or executor, then the national bank must have 
fiduciary powers under 12 U.S.C. 92a and the subsidiary also must have 
its own fiduciary powers under the law applicable to the subsidiary.
    (ii) Unless the subsidiary is a registered investment adviser, if 
an operating subsidiary proposes to exercise investment discretion on 
behalf of customers or provide investment advice for a fee, the 
national bank must have prior OCC approval to exercise fiduciary powers 
pursuant to Sec.  5.26 and 12 CFR part 9.
    (8) Expiration of approval. Approval expires if the national bank 
has not established or acquired the operating subsidiary or commenced 
the new

[[Page 18771]]

activity in an existing operating subsidiary within 12 months after the 
date of the approval, unless the OCC shortens or extends the time 
period.
* * * * *
0
25. Amend Sec.  5.35 by:
0
a. Revising the section heading;
0
b. In paragraphs (b) and (d)(6), removing the word ``shall'' and adding 
in its place the word ``must'' each time it appears;
0
c. In paragraphs (d)(2), (d)(3), (g)(2), and (g)(4), removing the word 
``state'' and adding in its place the word ``State'' each time in 
appears;
0
d. In paragraph (d)(2) removing the phrase ``section 3 of the Federal 
Deposit Insurance Act'' and adding in its place the phrase ``section 
3(a)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(a)(3)'' ;
0
e. In paragraph (d)(3):
0
i. After the words ``an insured bank'', removing the phrase ``(section 
3 of the Federal Deposit Insurance Act)'' and adding in its place the 
phrase ``(section 3(c) of the Federal Deposit Insurance Act, 12 U.S.C. 
1813(c))'' ;
0
ii. After the words ``a savings association'', removing the phrase 
``(section 3 of the Federal Deposit Insurance Act)'' and adding in its 
place the phrase ``(section 3(b)(1) of the Federal Deposit Insurance 
Act, 12 U.S.C. 1813(b)(1))'';
0
iiii. Removing the phrase ``Federal Deposit Insurance Corporation'' and 
adding in its place the word ``FDIC'';
0
f. In paragraph (d)(4), removing the phrase ``section 3 of the Federal 
Deposit Insurance Act'' and adding in its place the phrase ``section 
3(c)(2) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(c)(2)'';
0
g. Revising paragraph (f)(2)(ii)(A);
0
h. In paragraph (f)(2)(ii)(B), removing the phrase ``Sec.  
5.34(e)(5)(v) or Sec.  5.38(e)(5)(v)'' and adding in its place the 
phrase ``Sec.  5.34(f)(5) or Sec.  5.38(f)(5)''; and
0
i. Revising paragraph (i).
    The revision and addition read as follows.


Sec.  5.35   Bank service company investments by a national bank or 
Federal savings association.

* * * * *
    (f) * * *
    (2) * * *
    (ii) * * *
    (A) The national bank or Federal savings association is well 
capitalized and well managed as defined in Sec.  5.3; and
* * * * *
    (i) Investment limitations. A national bank or Federal savings 
association must comply with the investment limitations specified in 12 
U.S.C. 1862.
* * * * *
0
26. Amend Sec.  5.36 by:
0
a. In paragraph (a), removing the phrase ``and 93a'' and adding in its 
place the phrase ``93a, and 3101 et seq.'';
0
b. In paragraph (b), removing the phrase ``and 5.37'' and adding in its 
place the phrase ``5.37, and 5.39'';
0
c. Revising paragraph (c);
0
d. Revising paragraph (e) introductory text;
0
e. In paragraph (e)(1), removing the word ``state'' and adding in its 
place the word ``State'' each time it appears;
0
f. Revising paragraphs (e)(2) through (4)
0
g. Revising paragraph (f);
0
h. Redesignating paragraphs (g) through (i) as paragraph (h) through 
(j);
0
i. Adding new paragraph (g);
0
 j. In newly redesignated paragraph (h)(1), adding the phrase ``, as 
defined in Sec.  5.3'' after the phrase ``well managed'';
0
k. Revising newly redesignated paragraphs (i) and (j).
    The addition and revisions read as follows.


Sec.  5.36   Other equity investments by a national bank.

* * * * *
    (c) Definitions. For purposes of this section:
    (1) Enterprise means any corporation, limited liability company, 
partnership, trust, or similar business entity.
    (2) Non-controlling investment means an equity investment made 
pursuant to 12 U.S.C. 24(Seventh) that is not governed by procedures 
prescribed by another OCC rule. A non-controlling investment does not 
include a national bank holding interests in a trust formed for the 
purposes of securitizing assets held by the bank as part of its banking 
business or for the purposes of holding multiple legal titles of motor 
vehicles or equipment in conjunction with lease financing transactions.
* * * * *
    (e) Non-controlling investments; notice procedure. Except as 
provided in paragraphs (f), (g), and (h) of this section, a national 
bank may make a non-controlling investment, directly or through its 
operating subsidiary, in an enterprise that engages in an activity 
described in Sec.  5.34(f)(5) or in an activity that is substantively 
the same as a previously approved activity, as defined in Sec.  5.3, by 
filing a written notice. The bank must file this written notice with 
the appropriate OCC licensing office no later than 10 days after making 
the investment. The written notice must:
* * * * *
    (2) State:
    (i) Which paragraphs of Sec.  5.34(f)(5) describe the activity; or
    (ii) If the activity is substantively the same as a previously 
approved activity, as defined in Sec.  5.3:
    (A) How the activity is substantively the same as a previously 
approved activity;
    (B) The citation to the applicable precedent; and
    (C) That the activity will be conducted in accordance with the same 
terms and conditions applicable to the previously approved activity;
    (3) Certify that the bank is well capitalized and well managed, as 
defined in Sec.  5.3, at the time of the investment;
    (4) Describe how the bank has the ability to prevent the enterprise 
from engaging in activities that are not set forth in Sec.  5.34(f)(5) 
or not contained in published OCC precedent for previously approved 
activities, as defined in Sec.  5.3, or how the bank otherwise has the 
ability to withdraw its investment;
* * * * *
    (f) Non-controlling investment; application procedure--(1) In 
general. A national bank must file an application and obtain prior 
approval before making or acquiring, either directly or through an 
operating subsidiary, a non-controlling investment in an enterprise if 
the non-controlling investment does not qualify for the notice 
procedure set forth in paragraph (e) of this section because the bank 
is unable to make the representation required by paragraph (e)(2) or 
the certifications required by paragraphs (e)(3) or (e)(7) of this 
section. The application must include the information required in 
paragraphs (e)(1) and (e)(4) through (e)(6) of this section and the 
information required by paragraphs (e)(2), (e)(3), and (e)(7) of this 
section, if possible. If the bank is unable to make the representation 
set forth in paragraph (e)(2) of this section, the bank's application 
must explain why the activity in which the enterprise engages is a 
permissible activity for a national bank and why the filer should be 
permitted to hold a non-controlling investment in an enterprise engaged 
in that activity. A bank may not make a non-controlling investment if 
it is unable to make the representations and certifications specified 
in paragraphs (e)(1) and (e)(4) through (e)(6) of this section.
    (2) Expedited review. An application submitted by a national bank 
is deemed approved by the OCC as of the 10th day

[[Page 18772]]

after the application is received by the OCC if:
    (i) The national bank makes the representation required by 
paragraph (e)(2) and the certification required by paragraph (e)(3) of 
this section;
    (ii) The book value of the national bank's non-controlling 
investment for which the application is being submitted is no more than 
1% of the bank's capital and surplus;
    (iii) No more than 50% of the enterprise is owned or controlled by 
banks or savings associations subject to examination by an appropriate 
Federal banking agency or credit unions insured by the National Credit 
Union Association; and
    (iv) The OCC has not notified the national bank that the 
application has been removed from expedited review, or the expedited 
review process is extended, under Sec.  5.13(a)(2).
    (g) Non-controlling investment; no application or notice required. 
A national bank may make or acquire, either directly or through an 
operating subsidiary, a non-controlling investment in an enterprise 
without an application or notice to the OCC, if the:
    (1) Activities of the enterprise are limited to those activities 
previously reported by the bank in connection with the making or 
acquiring of a non-controlling investment;
    (2) Activities of the enterprise continue to be legally permissible 
for a national bank;
    (3) The bank's non-controlling investment will be made in 
accordance with any conditions imposed by the OCC in approving any 
prior non-controlling investment in an enterprise conducting these same 
activities; and
    (4) The bank is able to make the representations and certifications 
specified in paragraphs (e)(3) through (e)(7) of this section.
* * * * *
    (i) Non-controlling investments by Federal branches. A Federal 
branch that is well capitalized and well managed, as defined in Sec.  
5.3, may make a non-controlling investment in accordance with paragraph 
(e) of this section in the same manner and subject to the same 
conditions and requirements as a national bank, and subject to any 
additional requirements that may apply under 12 CFR 28.10(c).
    (j) Exceptions to rules of general applicability. Sections 5.8, 
5.10, and 5.11 do not apply to this section. However, if the OCC 
concludes that an application presents significant or novel policy, 
supervisory, or legal issues, the OCC may determine that some or all 
provisions in Sec. Sec.  5.8, 5.10, and 5.11 apply.


Sec.  5.37  [Amended]

    27. Amend Sec.  5.37 by:
0
a. In paragraph (a), removing ``317d'' and adding in its place 
``371d'';
0
b. Removing paragraph (c)(3);
0
c. In paragraph (d)(1)(i) and (d)(3)(i), removing the word ``shall'' 
and adding in its place the word ``must'' each time it appears;
0
d. In paragraph (d)(1)(i), removing the phrase ``any corporation'' and 
adding in its place the phrase ``any corporation, partnership, or 
similar entity (e.g., a limited liability company)'';
0
e. In paragraph (d)(3)(i), removing the phrase ``as defined in 12 CFR 
part 6'' and adding in its place the phrase ``as defined in Sec.  
5.3''; and
0
f. In paragraph (d)(5), adding '' 5.9,'' after ``5.8,'' each time it 
appears.
0
28. Amend Sec.  5.38 by:
0
a. In paragraph (a), adding the word ``and'' before ``5412(b)(2)(B)'';
0
b. In paragraph (b), adding ``(12 U.S.C. 1828(m))'' after the word 
``Act'';
0
c. Removing and reserving paragraph (d);
0
d. Revising paragraph (e)(2)(i)(A);
0
e. In paragraph (e)(2)(i)(C), removing the phrase ``generally accepted 
accounting principles (GAAP)'' and adding in its place the word 
``GAAP'';
0
f. In paragraph (e)(2)(iii) introductory text, removing the word 
``subsidiaries'' and adding in its place the word ``entities'';
0
g. Removing the word ``and'' at the end of paragraph (e)(2)(iii)(A);
0
h. In paragraph (e)(2)(iii)(B), removing the period and adding in its 
place ``; and'';
0
i. Adding new paragraph (e)(2)(iii)(C);
0
j. In paragraph (e)(2)(iv)(B), removing the word ``shall'' and adding 
in its place the word ``may'';
0
k. In paragraph (e)(3), removing the word ``state'' and adding in its 
place the word ``State'';
0
l. In paragraph (e)(4), removing the word ``shall'' and adding in its 
place the word ``must'';
0
m. Redesignating paragraphs (e)(5) through (7) as paragraphs (f) 
through (h);
0
n. Revising newly redesignated paragraph (f); and
0
o. In newly redesignated paragraph (h), removing the word ``shall'' 
each time it appears and adding in its place the word ``may''.
    The addition and revisions read as follows.


Sec.  5.38   Operating subsidiaries of a Federal savings association.

* * * * *
    (e) * * *
    (2) * * *
    (i) * * *
    (A) The savings association has the ability to control the 
management and operations of the subsidiary, and no other person or 
entity has the ability to exercise effective control or influence over 
the management or operations of the subsidiary to an extent equal to or 
greater than that of the savings association or an operating subsidiary 
thereof;
* * * * *
    (iii) * * *
    (C) A trust formed for purpose of securitizing assets held by the 
savings association as part of its business.
* * * * *
    (f) Procedures--(1) Application required. (i) A Federal savings 
association must first submit an application to, and receive prior 
approval from, the OCC to establish or acquire an operating subsidiary, 
or to perform a new activity in an existing operating subsidiary.
    (ii) The application must explain, as appropriate, how the savings 
association ``controls'' the enterprise, describing in full detail 
structural arrangements where control is based on factors other than 
savings association ownership of more than 50 percent of the voting 
interest of the subsidiary and the ability to control the management 
and operations of the subsidiary by holding voting interests sufficient 
to select the number of directors needed to control the subsidiary's 
board and to select and terminate senior management. In the case of a 
limited partnership or limited liability company that does not qualify 
for the expedited review procedure set forth in paragraph (f)(2) of 
this section, the savings association must provide a statement 
explaining why it is not eligible. The application also must include a 
complete description of the savings association's investment in the 
subsidiary, the proposed activities of the subsidiary, the 
organizational structure and management of the subsidiary, the 
relations between the savings association and the subsidiary, and other 
information necessary to adequately describe the proposal. To the 
extent that the application relates to the initial affiliation of the 
savings association with a company engaged in insurance activities, the 
savings association must describe the type of insurance activity in 
which the company is engaged and has present plans to conduct. The 
savings association must also list for each State the lines of business 
for which the company holds, or will hold, an insurance license, 
indicating the State where the company holds a resident license or 
charter, as applicable. The application must state whether the 
operating subsidiary will conduct any

[[Page 18773]]

activity at a location other than the home office or a previously 
approved branch of the savings association. The OCC may require a filer 
to submit a legal analysis if the proposal is novel, unusually complex, 
or raises substantial unresolved legal issues. In these cases, the OCC 
encourages filers to have a prefiling meeting with the OCC. Any savings 
association receiving approval under this paragraph is deemed to have 
agreed that the subsidiary will conduct the activity in a manner 
consistent with published OCC guidance.
    (2) Expedited review. (i) An application to establish or acquire an 
operating subsidiary, or to perform a new activity in an existing 
operating subsidiary, that meets the requirements of this paragraph is 
deemed approved by the OCC as of the 30th day after the filing is 
received by the OCC, unless the OCC notifies the filer prior to that 
date that the filing has been removed from expedited review, or the 
expedited review process is extended under Sec.  5.13(a)(2). Any 
savings association receiving approval under this paragraph is deemed 
to have agreed that the subsidiary will conduct the activity in a 
manner consistent with published OCC guidance.
    (ii) An application is eligible for expedited review if all of the 
following requirements are met:
    (A) The savings association is well capitalized and well managed, 
as defined in Sec.  5.3;
    (B) The activity is listed in paragraph (f)(5) this section or is 
substantively the same as a previously approved activity, as defined in 
Sec.  5.3, and the activity will be conducted in accordance with the 
same terms and conditions applicable to the previously approved 
activity;
    (C) The entity is a corporation, limited liability company, limited 
partnership or trust; and
    (D) The savings association or an operating subsidiary thereof:
    (1) Has the ability to control the management and operations of the 
subsidiary and no other person or entity has the ability to exercise 
effective control or influence over the management or operations of the 
subsidiary to an extent equal to or greater than that of the savings 
association or an operating subsidiary thereof. The ability to control 
the management and operations means:
    (i) In the case of a subsidiary that is a corporation, the savings 
association or an operating subsidiary thereof holds voting interests 
sufficient to select the number of directors needed to control the 
subsidiary's board and to select and terminate senior management;
    (ii) In the case of a subsidiary that is a limited partnership, the 
savings association or an operating subsidiary thereof has the ability 
to control the management and operations of the subsidiary by 
controlling the selection and termination of senior management;
    (iii) In the case of a subsidiary that is a limited liability 
company, the savings association or an operating subsidiary thereof has 
the ability to control the management and operations of the subsidiary 
by controlling the selection and termination of senior management; or
    (iv) In the case of a subsidiary that is a trust, the savings 
association or an operating subsidiary thereof has the ability to 
replace the trustee at will;
    (2) Holds more than 50 percent of the voting, or equivalent, 
interests in the subsidiary, and:
    (i) In the case of a subsidiary that is a limited partnership, the 
savings association or an operating subsidiary thereof is the sole 
general partner of the limited partnership, provided that under the 
partnership agreement, limited partners have no authority to bind the 
partnership by virtue solely of their status as limited partners;
    (ii) In the case of a subsidiary that is a limited liability 
company, the savings association or an operating subsidiary thereof is 
the sole managing member of the limited liability company, provided 
that under the limited liability company agreement, other limited 
liability company members have no authority to bind the limited 
liability company by virtue solely of their status as members; or
    (iii) In the case of a subsidiary that is a trust, the savings 
association or an operating subsidiary thereof is the sole beneficial 
owner of the trust; and
    (3) Is required to consolidate its financial statements with those 
of the subsidiary under GAAP. A filer proposing to qualify for 
expedited review must include in the application all necessary 
information showing the application meets the requirements.
    (3) Exceptions to rules of general applicability. Sections 5.8, 
5.10, and 5.11 do not apply to this section. However, if the OCC 
concludes that an application presents significant or novel policy, 
supervisory, or legal issues, the OCC may determine that some or all 
provisions in Sec. Sec.  5.8, 5.10, and 5.11 apply.
    (4) OCC review and approval. The OCC reviews a Federal savings 
association's application to determine whether the proposed activities 
are legally permissible under Federal savings association law and to 
ensure that the proposal is consistent with safe and sound banking 
practices and OCC policy and does not endanger the safety or soundness 
of the parent Federal savings association. As part of this process, the 
OCC may request additional information and analysis from the filer.
    (5) Activities eligible for expedited review. The following 
activities qualify for the expedited review procedures in paragraph 
(f)(2) of this section, provided the activity is conducted pursuant to 
the same terms and conditions as would be applicable if the activity 
were conducted directly by a Federal savings association:
    (i) Holding and managing assets acquired by the parent savings 
association or its operating subsidiaries, including investment assets 
and property acquired by the savings association through foreclosure or 
otherwise in good faith to compromise a doubtful claim, or in the 
ordinary course of collecting a debt previously contracted;
    (ii) Providing services to or for the savings association or its 
affiliates, including accounting, auditing, appraising, advertising and 
public relations, and financial advice and consulting;
    (iii) Making loans or other extensions of credit, and selling money 
orders and travelers checks;
    (iv) Purchasing, selling, servicing, or warehousing loans or other 
extensions of credit, or interests therein;
    (v) Providing management consulting, operational advice, and 
services for other financial institutions;
    (vi) Providing check payment services;
    (vii) Acting as investment adviser (including an adviser with 
investment discretion) or financial adviser or counselor to 
governmental entities or instrumentalities, businesses, or individuals, 
including advising registered investment companies and mortgage or real 
estate investment trusts;
    (viii) Providing financial and transactional advice and assistance, 
including advice and assistance for customers in structuring, 
arranging, and executing mergers and acquisitions, divestitures, joint 
ventures, leveraged buyouts, swaps, foreign exchange, derivative 
transactions, coin and bullion, and capital restructurings;
    (ix) Underwriting and reinsuring credit life and disability 
insurance;
    (x) Leasing of personal property;
    (xi) Providing securities brokerage;
    (xii) Underwriting and dealing, including making a market, in 
savings association permissible securities and purchasing and selling 
as principal, asset backed obligations;

[[Page 18774]]

    (xiii) Acting as an insurance agent or broker for credit life, 
disability, and unemployment insurance; single property interest 
insurance; and title insurance;
    (xiv) Offering correspondent services to the extent permitted by 
published OCC precedent for Federal savings associations;
    (xv) Acting as agent or broker in the sale of fixed annuities;
    (xvi) Offering debt cancellation or debt suspension agreements;
    (xvii) Providing escrow services;
    (xviii) Acting as a transfer agent; and
    (xix) Providing or selling postage stamps.
    (6) Redesignation. A Federal savings association that proposes to 
redesignate a service corporation as an operating subsidiary must 
submit a notification to the OCC at least 30 days prior to the 
redesignation date. The notification must include a description of how 
the redesignated service corporation meets all of the requirements of 
this section to be an operating subsidiary, a resolution of the savings 
association's board of directors approving the redesignation, and the 
proposed effective date of the redesignation. The savings association 
may effect the redesignation on the proposed date unless the OCC 
notifies the savings association otherwise prior to that date. The OCC 
may require an application if the redesignation presents policy, 
supervisory, or legal issues.
    (7) Fiduciary powers. (i) If an operating subsidiary proposes to 
accept fiduciary appointments for which fiduciary powers are required, 
such as acting as trustee or executor, then the Federal savings 
association must have fiduciary powers under section 5(n) of the Home 
Owners' Loan Act, 12 U.S.C. 1464(n), and the subsidiary also must have 
its own fiduciary powers under the law applicable to the subsidiary.
    (ii) Unless the subsidiary is a registered investment adviser, if 
an operating subsidiary proposes to exercise investment discretion on 
behalf of customers or provide investment advice for a fee, the Federal 
savings association must have prior OCC approval to exercise fiduciary 
powers pursuant to Sec.  5.26 (or a predecessor provision) and 12 CFR 
part 150.
    (8) Expiration of approval. Approval expires if the Federal savings 
association has not established or acquired the operating subsidiary, 
or commenced the new activity in an existing operating subsidiary 
within 12 months after the date of the approval, unless the OCC 
shortens or extends the time period.
0
29. Amend Sec.  5.39 by:
0
a. Revising paragraph (a);
0
b. In paragraph (b), removing the phrase ``a notice'' and adding in its 
place the phrase ``an application'', and removing ``Sec.  5.34(e)(5)'' 
and adding in its place ``Sec.  5.34(f)'';
0
c. In paragraphs (b), (h)(2), and (j)(1)(ii), removing the word 
``shall'' and adding in its place the word ``must'' each time it 
appears;
0
d. In paragraph (d)(1), removing the phrase ``shall have'' and adding 
in its place the word ``has'';
0
e. Removing paragraphs (d)(2), (d)(11) and (d)(12) and redesignating 
paragraphs (d)(3) through (d)(10) as paragraphs (d)(2) through (d)(9);
0
f. In paragraphs (e)(1)(ii) and (j)(2), removing the word ``state'' and 
adding in its place the word ``State'' each time it appears;
0
g. In paragraph (f)(1), removing the phrase ``Gramm-Leach-Bliley Act 
(GLBA)), 113 Stat. 1407-1409, (15 U.S.C. 6712 or 15 U.S.C. 6713)'' and 
adding in its place the phrase ``Gramm-Leach-Bliley Act, (15 U.S.C. 
6712 or 15 U.S.C. 6713))'';
0
h. In paragraph (f)(3), removing the phrase ``GLBA, 113 Stat. 1381'' 
and adding in its place the phrase ``Gramm-Leach-Bliley Act (12 U.S.C. 
1843 note)'';
0
i. In paragraph (g)(1), adding the phrase ``, as defined in Sec.  5.3'' 
after ``well managed'';
0
j. In paragraph (h)(2), removing the phrase ``generally accepted 
accounting principles'' and adding in its place the word ``GAAP'';
0
k. Revising paragraph (h)(5)(i);
0
l. Removing and reserving paragraph (h)(5)(ii);
0
m. In paragraphs (h)(5)(vi), removing the word ``GLBA'' and adding in 
its place the phrase ``Gramm-Leach-Bliley Act'';
0
n. Removing the phrase ``shall be'' and adding in its place the word 
``is'' in paragraph (h)(6);
0
o. Revising paragraph (i);
0
p. In paragraph (j)(1)(i), removing the phrase ``OCC shall'' and adding 
in its place the phrase ``OCC will'' and removing the phrase ``shall 
be'' and adding in its place the word ``is''; and
0
q. In paragraph (k), removing the word ``GLBA'' and adding in its place 
the phrase ``Gramm-Leach-Bliley Act''.
    The revisions read as follows.


Sec.  5.39   Financial subsidiaries of a national bank.

    (a) Authority. 12 U.S.C. 24a and 93a.
* * * * *
    (h) * * *
    (5) * * *
    (i) A financial subsidiary is deemed to be an affiliate of the bank 
and is not deemed to be a subsidiary of the bank;
* * * * *
    (i) Procedures to engage in activities through a financial 
subsidiary. A national bank that intends, directly or indirectly, to 
acquire control of, or hold an interest in, a financial subsidiary, or 
to commence a new activity in an existing financial subsidiary, must 
obtain OCC approval through the procedures set forth in paragraph 
(i)(1) or (i)(2) of this section.
    (1) Certification with subsequent application. (i) At any time, a 
national bank may file a ``Financial Subsidiary Certification'' with 
the appropriate OCC licensing office listing the bank's depository 
institution affiliates and certifying that the bank and each of those 
affiliates is well capitalized and well managed.
    (ii) Thereafter, at such time as the bank seeks OCC approval to 
acquire control of, or hold an interest in, a new financial subsidiary, 
or commence a new activity authorized under section 5136A(a)(2)(A)(i) 
of the Revised Statutes (12 U.S.C. 24a) in an existing subsidiary, the 
bank may file an application with the appropriate OCC licensing office 
at the time of acquiring control of, or holding an interest in, a 
financial subsidiary, or commencing such activity in an existing 
subsidiary. The application must be labeled ``Financial Subsidiary 
Application'' and must:
    (A) State that the bank's Certification remains valid;
    (B) Describe the activity or activities conducted by the financial 
subsidiary. To the extent the application relates to the initial 
affiliation of the bank with a company engaged in insurance activities, 
the bank should describe the type of insurance activity that the 
company is engaged in and has present plans to conduct. The bank must 
also list for each State the lines of business for which the company 
holds, or will hold, an insurance license, indicating the State where 
the company holds a resident license or charter, as applicable;
    (C) Cite the specific authority permitting the activity to be 
conducted by the financial subsidiary. (Where the authority relied on 
is an agency order or interpretation under section 4(c)(8) or 4(c)(13), 
respectively, of the Bank Holding Company Act of 1956 (12 U.S.C. 
1843(c)(8) or (c)(13)), a copy of the order or interpretation should be 
attached);
    (D) Certify that the bank will be well capitalized after making 
adjustments required by paragraph (h)(1) of this section;
    (E) Demonstrate the aggregate consolidated total assets of all 
financial subsidiaries of the national bank do not exceed the lesser of 
45 percent of the

[[Page 18775]]

bank's consolidated total assets or $50 billion (or the increased level 
established by the indexing mechanism); and
    (F) If applicable, certify that the bank meets the eligible debt 
requirement in paragraph (g)(3) of this section.
    (2) Combined certification and application. A national bank may 
file a combined certification and application with the appropriate OCC 
licensing office at least five business days prior to acquiring control 
of, or holding an interest in, a financial subsidiary, or commencing a 
new activity authorized pursuant to section 5136A(a)(2)(A)(i) of the 
Revised Statutes (12 U.S.C. 24a(a)(2)(A)(i)) in an existing subsidiary. 
The written application must be labeled ``Financial Subsidiary 
Certification and Application'' and must:
    (i) List the bank's depository institution affiliates and certify 
that the bank and each depository institution affiliate of the bank is 
well capitalized and well managed;
    (ii) Describe the activity or activities to be conducted in the 
financial subsidiary. To the extent the application relates to the 
initial affiliation of the bank with a company engaged in insurance 
activities, the bank should describe the type of insurance activity 
that the company is engaged in and has present plans to conduct. The 
bank must also list for each State the lines of business for which the 
company holds, or will hold, an insurance license, indicating the State 
where the company holds a resident license or charter, as applicable;
    (iii) Cite the specific authority permitting the activity to be 
conducted by the financial subsidiary. (Where the authority relied on 
is an agency order or interpretation under section 4(c)(8) or 4(c)(13), 
respectively, of the Bank Holding Company Act of 1956 (12 U.S.C. 
1843(c)(8) or (c)(13)), a copy of the order or interpretation should be 
attached);
    (iv) Certify that the bank will remain well capitalized after 
making the adjustments required by paragraph (h)(1) of this section;
    (v) Demonstrate the aggregate consolidated total assets of all 
financial subsidiaries of the national bank do not exceed the lesser of 
45% of the bank's consolidated total assets or $50 billion (or the 
increased level established by the indexing mechanism); and
    (vi) If applicable, certify that the bank meets the eligible debt 
requirement in paragraph (g)(3) of this section.
    (3) Approval. An application is deemed approved upon filing the 
information required by paragraphs (i)(1) or (i)(2) of this section 
within the time frames provided therein.
    (4) Exceptions to rules of general applicability. Sections 5.8, 
5.10, 5.11, and 5.13 do not apply to activities authorized under this 
section.
    (5) Community Reinvestment Act (CRA). A national bank may not apply 
under this paragraph (i) to commence a new activity authorized under 
section 5136A(a)(2)(A)(i) of the Revised Statutes (12 U.S.C. 24a), or 
directly or indirectly acquire control of a company engaged in any such 
activity, if the bank or any of its insured depository institution 
affiliates received a CRA rating of less than ``satisfactory record of 
meeting community credit needs'' on its most recent CRA examination 
prior to when the bank would file an application under this section.
* * * * *


Sec.  5.40  [Amended]

0
30. Amend Sec.  5.40 by:
0
a. Removing the word ``shall'' and adding in its place the word 
``must'' each time it appears in paragraphs (b), (c)(1), (c)(2)(i), 
(c)(2)(ii), and (c)(3); and
0
b. In paragraph (c)(4), removing the phrase ``national bank'' and 
adding in its place the word ``bank'', removing the phrase ``Federal 
savings association'' and adding in its place the phrase ``savings 
association'', and removing the phrase ``is not eligible for'' and 
adding in its place the phrase ``has been removed from''.
0
31. Section 5.42 is amended by:
0
a. In paragraphs (d)(1) and (d)(2), removing the word ``shall'' and 
adding in its place the word ``must'' each time it appears;
0
b. Revising paragraph (d)(3);
0
c. In paragraph (d)(4), removing ``5.13(a)'' and adding in its place 
``5.13'' each time it appears and removing the word ``application'' and 
adding in its place the word ``notice''.
    The revision reads as follows.


Sec.  5.42   Corporate title of a national bank or Federal savings 
association.

* * * * *
    (d) * * *
    (3) Amendment to charter. A Federal savings association must amend 
its charter in accordance with 12 CFR 5.21 or 5.22, as applicable, to 
change its title.
* * * * *
0
32. Section 5.43 is added to read as follows:


Sec.  5.43  National bank director residency and citizenship waivers.

    (a) Authority. 12 U.S.C. 72 and 93a.
    (b) Scope. This section describes the procedures for the OCC to 
waive the residency and citizenship requirements for national bank 
directors set forth at 12 U.S.C. 72.
    (c) Application Procedures--(1) Residency. A national bank may 
request a waiver of the residency requirement for any number of 
directors by filing a written application with the OCC. The OCC may 
grant a waiver on an individual basis or for any number of director 
positions.
    (2) Citizenship. A national bank may request a waiver of the 
citizenship requirements for individuals who comprise up to a minority 
of the total number of directors by filing a written application with 
the OCC. The OCC may grant a waiver on an individual basis. A 
citizenship waiver is valid until the individual no longer serves on 
the board or the OCC revokes the waiver in accordance with paragraph 
(d) of this section.
    (3) Biographical and Financial Reports. (i) Each subject of a 
citizenship waiver application must submit to the appropriate OCC 
licensing office the information prescribed in the Interagency 
Biographical and Financial Report, available at www.occ.gov.
    (ii) The OCC may require additional information about any subject 
of a citizenship waiver application, including legible fingerprints, if 
appropriate. The OCC may waive any of the information requirements of 
this paragraph if the OCC determines that doing so is in the public 
interest.
    (4) Exceptions to rules of general applicability. Sections 5.8, 
5.9, 5.10, and 5.11 do not apply to this section.
    (d) Revocation of waiver--(1) Procedure. The OCC may revoke a 
residency or citizenship waiver. Before revocation, the OCC will 
provide written notice to the national bank and affected director(s) of 
its intention to revoke a residency or citizenship waiver and the basis 
for its intention. The bank and affected director(s) may respond in 
writing to the OCC within 10 calendar days, unless the OCC determines 
that a shorter period is appropriate in light of relevant 
circumstances. The OCC will consider the written responses of the bank 
and affected director(s), if any, prior to deciding whether or not to 
revoke a residency or citizenship waiver. The OCC will notify the 
national bank and the director of the OCC's decision to revoke a 
residency or citizenship waiver in writing.
    (2) Effective date. The OCC's decision to revoke a residency or 
citizenship waiver is effective:
    (i) If the director appeals pursuant to paragraph (e) of this 
section, upon the director's receipt of the decision of the 
Comptroller, an authorized delegate, or the appellate official, to 
uphold the

[[Page 18776]]

initial decision to revoke the residency or citizenship waiver; or
    (ii) If the director does not appeal pursuant to paragraph (e) of 
this section, upon the expiration of the period to appeal.
    (e) Appeal. (1) A director may seek review by appealing the OCC's 
decision to revoke a residency or citizenship waiver to the 
Comptroller, or an authorized delegate, within 15 days of the receipt 
of the OCC's written decision to revoke. The director may appeal on the 
grounds that the reasons for revocation are contrary to fact or 
arbitrary and capricious. The appellant must submit all documents and 
written arguments that the appellant wishes to be considered in support 
of the appeal.
    (2) The Comptroller, or an authorized delegate, may designate an 
appellate official who was not previously involved in the decision 
leading to the appeal at issue. The Comptroller, an authorized 
delegate, or the appellate official considers all information submitted 
with the original application for the residency or citizenship waiver, 
the material before the OCC official who made the initial decision, and 
any information submitted by the appellant at the time of appeal.
    (3) The Comptroller, an authorized delegate, or the appellate 
official will independently determine whether the reasons given for the 
initial decision to revoke are contrary to fact or arbitrary and 
capricious. If they determine either to be the case, the Comptroller, 
an authorized delegate, or the appellate official may reverse the 
initial decision to revoke the waiver.
    (4) Upon completion of the review, the Comptroller, an authorized 
delegate, or the appellate official will notify the appellant in 
writing of the decision. If the initial decision is upheld, the 
decision to revoke the waiver is effective pursuant to paragraph 
(d)(2)(ii) of this section.
    (f) Prior waivers. Notwithstanding paragraph (c)(2) of this 
section, any waiver granted by the OCC before [EFFECTIVE DATE OF THE 
FINAL RULE] remains in effect unless revoked pursuant to paragraph (d) 
of this section.


Sec.  5.45  [Amended]

0
33. Amend Sec.  5.45 by:
0
a. In paragraphs (b), (e)(1), and (g)(5), removing the phrase ``Federal 
savings association'' and adding in its place ``Federal stock savings 
association'' each time it appears;
0
b. In paragraph (f)(3), removing the phrase ``savings association's'' 
and adding in its place ``Federal stock savings association's'';
0
c. In paragraphs (g)(1) introductory text and (g)(4)(i) introductory 
text and in paragraphs (g)(2)(iii), (g)(4)(i)(C), (h), and (i), 
removing the phrase ``savings association'' and adding in its place 
``Federal stock savings association'' each time it appears;
0
d. In paragraph (g)(4)(i) introductory text and paragraphs (h) and (i), 
removing the word ``shall'' and adding in its place the word ``must''; 
and
0
e. In paragraph (h), removing the number ``197'' and adding in its 
place ``16''.
0
34. Amend Sec.  5.46 by:
0
a. In paragraph (b), removing the word ``shall'' and adding in its 
place the word ``must'' in the first sentence and removing the word 
``shall'' and adding in its place the word ``may'' in the second 
sentence;
0
b. Revising paragraph (g)(1)(ii);
0
c. In paragraphs (g)(2), (i)(1) introductory text, (i)(3)(i) 
introductory text, (i)(4), (j), and (k), removing the word ``shall'' 
and adding in its place the word ``must'' each time it appears;
0
d. In paragraph (g)(2), removing the word ``applicant'' and adding in 
its place the word ``filer'';
0
e. Revising paragraphs (h) and (i)(2);
0
f. In paragraph (i)(5), adding the phrase ``, unless the OCC specifies 
a longer period'' after the word ``approval'';
0
g. In paragraph (i)(6)(i), removing the phrase ``U.S. generally 
accepted accounting principles'' and adding in its place the word 
``GAAP''; and
0
h. In paragraph (i)(6)(ii), removing the word ``U.S.''.
    The additions and revisions read as follows.


Sec.  5.46   Changes in permanent capital of a national bank.

* * * * *
    (g) * * *
    (1) * * *
    (ii) Prior approval required. In addition to a notice of capital 
increase under paragraph (i)(3) of this section, a national bank must 
submit an application under paragraph (i)(1) or (i)(2) of this section 
and obtain prior OCC approval to increase its permanent capital if the 
bank is:
    (A) Required to receive OCC approval pursuant to letter, order, 
directive, written agreement, or otherwise;
    (B) Selling common or preferred stock for consideration other than 
cash; or
    (C) Receiving a material noncash contribution to capital surplus.
* * * * *
    (h) Decreases in permanent capital. A national bank must submit an 
application and obtain prior approval under paragraph (i)(1) or (i)(2) 
of this section for any reduction of its permanent capital. A national 
bank may request approval for a reduction in capital for multiple 
quarters. The request need only specify a total dollar amount for the 
requested period and need not specify amounts for each quarter.
    (i) * * *
    (2) Expedited review. An eligible bank's application is deemed 
approved by the OCC 15 days after the date the OCC receives the 
application described in paragraph (i)(1) of this section, unless the 
OCC notifies the bank prior to that date that the application has been 
removed from expedited review, or the expedited review process is 
extended, under Sec.  5.13(a)(2). An eligible bank seeking to decrease 
its capital may request OCC approval for up to four consecutive 
quarters. The request need only specify a total dollar amount for the 
four-quarter period and need not specify amounts for each quarter. An 
eligible bank may decrease its capital pursuant to such a plan only if 
the bank maintains its eligible bank status before and after each 
decrease in its capital.
* * * * *
0
35. Amend Sec.  5.47 by:
0
a. In paragraph (b), removing the phrase ``debt notes'' and adding in 
its place the word ``debt'';
0
b. Revising paragraph (c);
0
c. In paragraph (d)(1)(ii), removing the phrase ``Federal Deposit 
Insurance Corporation (FDIC)'' and adding in its place the word 
``FDIC'';
0
d. In paragraph (d)(1)(iv)(B), removing the word ``state'' and adding 
in its place the word ``State'';
0
e. In paragraph (d)(1)(vi), removing the word ``shall'' and adding in 
its place the word ``must'' the first time it appears;
0
f. In paragraphs (d)(1)(vi) and (vii), removing the word ``shall'' and 
adding in its place the word ``may'' the second time it appears;
0
g. In paragraph (d)(2) introductory text, removing the word ``note'' 
and adding in its place the word ``document'';
0
h. In paragraph (d)(3)(ii)(C), adding the phrase ``, if applicable to 
the subordinated debt issuance'' after the word ``default'';
0
i. Adding paragraph (d)(3)(ii)(D);
0
j. In paragraph (e), removing the phrase ``, including, for an advanced 
approaches national bank, the disclosure requirement in 12 CFR 
3.20(d)(1)(xi)''; and
0
k. Revising paragraphs (f), (g) and (h).
    The addition and revisions read as follows.

[[Page 18777]]

Sec.  5.47  Subordinated debt issued by a national bank.

* * * * *
    (c) Definitions. The following definitions apply to this section:
    (1) Capital plan means a plan describing the means and schedule by 
which a national bank will attain specified capital levels or ratios, 
including a capital restoration plan filed with the OCC under 12 U.S.C. 
1831o and 12 CFR 6.5.
    (2) Original maturity means the stated maturity of the subordinated 
debt note. If the subordinated debt note does not have a stated 
maturity, then original maturity means the earliest possible date the 
subordinated debt note may be redeemed, repurchased, prepaid, 
terminated, or otherwise retired by the national bank pursuant to the 
terms of the subordinated debt note.
    (3) Payment on subordinated debt means principal and interest, and 
premium, if any.
    (4) Subordinated debt document means any document pertaining to an 
issuance of subordinated debt, and any renewal, extension, amendment, 
modification, or replacement thereof, including the subordinated debt 
note, and any global note, pricing supplement, note agreement, trust 
indenture, paying agent agreement, or underwriting agreement.
    (5) Tier 2 capital has the same meaning as set forth in 12 CFR 
3.20(d).
* * * * *
    (d) * * *
    (3) * * *
    (ii) * * *
    (D) A statement that the obligation may be fully subordinated to 
interests held by the U.S. government in the event that the national 
bank enters into a receivership, insolvency, liquidation, or similar 
proceeding.* * * * *
    (f) Process and procedures--(1) Issuance of subordinated debt--(i) 
Approval--(A) Eligible bank. An eligible bank is required to receive 
prior approval from the OCC to issue any subordinated debt, in 
accordance with paragraph (g)(1)(i) of this section, if:
    (1) The national bank will not continue to be an eligible bank 
after the transaction;
    (2) The OCC has previously notified the national bank that prior 
approval is required; or
    (3) Prior approval is required by law.
    (B) National bank not an eligible bank. A national bank that is not 
an eligible bank must receive prior OCC approval to issue any 
subordinated debt, in accordance with paragraph (g)(1)(i) of this 
section.
    (ii) Application to include subordinated debt in tier 2 capital. A 
national bank that intends to include subordinated debt in tier 2 
capital must submit an application to the OCC for approval, in 
accordance with paragraph (h) of this section, before or within ten 
days after issuing the subordinated debt. Where a national bank's 
application to issue subordinated debt has been deemed to be approved, 
in accordance with paragraph (g)(2)(i) of this section, and the 
national bank does not contemporaneously receive approval from the OCC 
to include the subordinated debt as tier 2 capital, the national bank 
must submit an application for approval to include subordinated debt in 
tier 2 capital, pursuant to paragraph (h) of this section, after 
issuance of the subordinated debt. A national bank may not include 
subordinated debt in tier 2 capital unless the national bank has filed 
the application with the OCC and received approval from the OCC that 
the subordinated debt issued by the national bank qualifies as tier 2 
capital.
    (2) Prepayment of subordinated debt--(i) Subordinated debt not 
included in tier 2 capital--(A) Eligible bank. An eligible bank is 
required to receive prior approval from the OCC to prepay any 
subordinated debt that is not included in tier 2 capital (including 
acceleration, repurchase, redemption prior to maturity, and exercising 
a call option), in accordance with paragraph (g)(1)(ii) of this 
section, only if:
    (1) The national bank will not be an eligible bank after the 
transaction;
    (2) The OCC has previously notified the national bank that prior 
approval is required;
    (3) Prior approval is required by law; or
    (4) The amount of the proposed prepayment is equal to or greater 
than one percent of the national bank's total capital, as defined in 12 
CFR 3.2.
    (B) National bank not an eligible bank. A national bank that is not 
an eligible bank must receive prior OCC approval to prepay any 
subordinated debt that is not included in tier 2 capital (including 
acceleration, repurchase, redemption prior to maturity, and exercising 
a call option), in accordance with paragraph (g)(1)(ii) of this 
section.
    (ii) Subordinated debt included in tier 2 capital. All national 
banks must receive prior OCC approval to prepay subordinated debt 
included in tier 2 capital, in accordance with paragraph (g)(1)(ii) of 
this section.
    (3) Material changes to existing subordinated debt documents. A 
national bank must receive prior approval from the OCC in accordance 
with paragraph (g)(1)(iii) of this section prior to making a material 
change to an existing subordinated debt document if the bank would have 
been required to receive OCC approval to issue the security under 
paragraph (f)(1)(i) of this section or to include it in tier 2 capital 
under paragraph (h) of this section.
    (g) Prior approval procedure--(1) Application--(i) Issuance of 
subordinated debt. A national bank required to obtain OCC approval 
before issuing subordinated debt must submit an application to the 
appropriate OCC licensing office. The application must include:
    (A) A description of the terms and amount of the proposed issuance;
    (B) A statement of whether the national bank is subject to a 
capital plan or required to file a capital plan with the OCC and, if 
so, how the proposed change conforms to the capital plan;
    (C) A copy of the proposed subordinated note and any other 
subordinated debt documents; and
    (D) A statement that the subordinated debt issue complies with all 
applicable laws and regulations.
    (ii) Prepayment of subordinated debt. A national bank required to 
obtain OCC approval before prepaying subordinated debt, pursuant to 
paragraph (f)(2) of this section, must submit an application to the 
appropriate OCC licensing office. The application must include:
    (A) A description of the terms and amount of the proposed 
prepayment;
    (B) A statement of whether the national bank is subject to a 
capital plan or required to file a capital plan with the OCC and, if 
so, how the proposed change conforms to the capital plan;
    (C) A copy of the subordinated debt note the national bank is 
proposing to prepay and any other subordinated debt documents; and
    (D) Either:
    (1) A statement explaining why the national bank believes that 
following the proposed prepayment the national bank would continue to 
hold an amount of capital commensurate with its risk; or
    (2) A description of the replacement capital instrument that meets 
the criteria for tier 1 or tier 2 capital under 12 CFR 3.20, including 
the amount of such instrument, and the time frame for issuance.
    (iii) Material changes to existing subordinated debt. A national 
bank required to obtain OCC approval before making a material change to 
an existing subordinated debt document, pursuant to paragraph (f)(3) of 
this section, must submit an application to the appropriate OCC 
licensing office. The application must include:
    (A) A description of all proposed changes;

[[Page 18778]]

    (B) A statement of whether the national bank is subject to a 
capital plan or required to file a capital plan with the OCC and, if 
so, how the proposed change conforms to the capital plan;
    (C) A copy of the revised subordinated debt documents reflecting 
all proposed changes; and
    (D) A statement that the proposed changes to the subordinated debt 
documents complies with all applicable laws and regulations.
    (iv) Additional information. The OCC reserves the right to request 
additional relevant information, as appropriate.
    (2) Approval--(i) General. The application is deemed approved by 
the OCC as of the 30th day after the filing is received by the OCC, 
unless the OCC notifies the national bank prior to that date that the 
filing presents a significant supervisory, or compliance concern, or 
raises a significant legal or policy issue.
    (ii) Prepayment. Notwithstanding this paragraph (g)(2)(i) of this 
section, if the application for prior approval is for prepayment, the 
national bank must receive affirmative approval from the OCC. If the 
OCC requires the national bank to replace the subordinated debt, the 
national bank must receive affirmative approval that the replacement 
capital instrument meets the criteria for tier 1 or tier 2 capital 
under 12 CFR 3.20 and must issue the replacement instrument prior to 
prepaying the subordinated debt, or immediately thereafter.\4\
---------------------------------------------------------------------------

    \4\ A national bank may replace tier 2 capital instruments 
concurrent with the redemption of existing tier 2 capital 
instruments.
---------------------------------------------------------------------------

    (iii) Tier 2 capital. Following notification to the OCC pursuant to 
paragraph (f)(1)(ii) of this section that the national bank has issued 
the subordinated debt, the OCC will notify the national bank whether 
the subordinated debt qualifies as tier 2 capital.
    (iv) Expiration of approval. Approval expires if a national bank 
does not complete the sale of the subordinated debt within one year of 
approval.
    (h) Application procedure for inclusion in tier 2 capital. (1) A 
national bank must submit an application to the appropriate OCC 
licensing office in writing before or within ten days after issuing 
subordinated debt that it intends to include in tier 2 capital. A 
national bank may not include such subordinated debt in tier 2 capital 
unless the national bank has received approval from the OCC that the 
subordinated debt qualifies as tier 2 capital.
    (2) The application must include:
    (i) The terms of the issuance;
    (ii) The amount or projected amount and date or projected date of 
receipt of funds;
    (iii) The interest rate or expected calculation method for the 
interest rate;
    (iv) Copies of the final subordinated debt documents; and
    (v) A statement that the issuance complies with all applicable laws 
and regulations.
* * * * *


Sec.  5.48  [Amended]

0
36. Amend Sec.  5.48 in paragraphs (b), (e)(1), (e)(2)(i), (e)(3)(i) 
introductory text, (e)(3)(ii), (e)(3)(iii), (e)(4), (e)(5), (e)(6), and 
(f)(2)(ii) by removing the word ``shall'' and adding in its place the 
word ``must'' each time it appears.
0
 37. Section 5.50 is amended by:
0
a. In paragraphs (b), (c)(3)(v)(B), (f)(2)(i), (f)(2)(vii), 
(f)(3)(ii)(B), (f)(3)(ii)(C), (g)(1) introductory text, (h), (i)(1)(i), 
(i)(1)(ii), (i)(4)(ii), and (i)(5), removing the word ``shall'' and 
adding in its place the word ``must'' each time it appears;
0
b. In paragraph (c)(2)(iii), removing the word ``(HOLA)'';
0
c. In paragraph (d)(1)(ii), removing the phrase ``shall be'' and adding 
in its place the word ``is'';
0
d. In paragraph (d)(5), removing the word ``their'' and adding in its 
place the phrase ``his or her'';
0
e. Removing paragraph (d)(8);
0
f. Redesignating paragraphs (d)(6) through (7) as paragraphs (d)(7) 
through (8);
0
g. Adding new paragraph (d)(6);
0
h. In newly redesignated paragraph (d)(7), removing the word ``HOLA'' 
and adding in its place the phrase ``Home Owners' Loan Act, 12 U.S.C. 
1464'';
0
i. In paragraph (f)(2)(ii), removing the phrase ``shall be'' and adding 
in its place the word ``are'';
0
 j. In paragraph (f)(2)(ii)(E), removing the phrase ``defined in Sec.  
192.25 of this chapter shall'' and adding in its place the phrase 
``defined in 12 CFR 192.25 is'';
0
k. In paragraph (f)(2)(viii), removing the word ``shall'' and adding in 
its place the word ``will'';
0
l. In paragraph (f)(3)(i)(A), removing the phrase ``on the OCC's 
internet web page,'' and adding in its place the word ``at'';
0
m. In paragraphs (f)(3)(ii)(A), (f)(3)(ii)(B), and (f)(3)(iii) 
introductory text, removing the word ``applicant'' and adding in its 
place the word ``filer'';
0
n. In paragraph (f)(3)(ii)(C), removing the phrase ``An applicant'' and 
adding in its place the phrase ``A filer'';
0
o. Removing paragraph (f)(3)(iv);
0
p. Removing the phrase ``of notice'' in the heading of paragraph 
(f)(5);
0
q. Revising paragraph (f)(6);
0
 r. In paragraph (g)(1) introductory text, removing the word 
``applicant'' and adding in its place the word ``filer''; and
0
 s. Revising paragraph (g)(2)(i).
    The addition and revisions read as follows.


Sec.  5.50   Change in control of a national bank or Federal savings 
association; reporting of stock loans.

* * * * *
    (d) * * *
    (6) Depository institution means a depository institution as 
defined in section 3(c)(1) of the Federal Deposit Insurance Act, 12 
U.S.C. 1813(c)(1).
* * * * *
    (f) * * *
    (6) Notification of disapproval. (i) Written notice by OCC. If the 
OCC disapproves a notice, it will notify the filer in writing within 
three days after the decision. The OCC's written disapproval will 
contain a statement of the basis for disapproval and indicate that the 
filer may request a hearing.
    (ii) Hearing Request. The filer may request a hearing by the OCC 
within 10 days of receipt of disapproval, pursuant to the procedures in 
12 CFR part 19, subpart H. Following final agency action under 12 CFR 
part 19, further review by the courts is available. (See 12 U.S.C. 
1817(j)(5)).
    (iii) Failure to request a hearing. If a filer fails to request a 
hearing with a timely request, the notice of disapproval constitutes a 
final and unappealable order.
* * * * *
    (g) * * *
    (2) * * *
    (i) Upon the request of any person, the OCC releases the 
information provided in the public portion of the notice and makes it 
available for public inspection and copying as soon as possible after a 
notice has been filed. In certain circumstances the OCC may determine 
that the release of the information would not be in the public 
interest. In addition, the OCC makes the date that the notice is filed, 
the disposition of the notice and the date thereof, and the 
consummation date of the transaction, if applicable, publicly available 
in the OCC's ``Weekly Bulletin.''
* * * * *
0
38. Amend Sec.  5.51 by:
0
a. Revising paragraph (a);
0
b. In paragraph (c)(4), adding the phrase ``chief risk officer,'' after 
the phrase ``chief investment officer,''
0
c. In paragraph (c)(7)(ii), adding the phrase ``that requires action to 
improve the financial condition of the national

[[Page 18779]]

bank or Federal savings association'' after the word ``agreement'';
0
d. In paragraph (d) introductory text, and paragraphs (e)(1), 
(e)(6)(i)(C), (e)(6)(1)(D)(2), (e)(6)(i)(E), and (f)(1), removing the 
word ``shall'' and adding in its place the word ``must'' each time it 
appears;
0
e. In paragraph (e)(6)(i)(E), removing the phrase ``his or her'' and 
adding in its place the word ``their'';
0
f. In paragraph (e)(8), adding ``, 5.9,'' after ``5.8''; and
0
g. In paragraphs (e)(8), (f)(3), and (f)(4), removing the word 
``shall'' and adding in its place the word ``will''.
    The revision reads as follows.


Sec.  5.51  Changes in directors and senior executive officers of a 
national bank or Federal savings association.

    (a) Authority. 12 U.S.C. 1831i, 3102(b), and 5412(b)(2)(B).
* * * * *


Sec.  5.52  [Amended]

0
39. Amend Sec.  5.52 in paragraph (c)(1) by removing the word ``shall'' 
and adding in its place the word ``must''.
0
40. Amend Sec.  5.55 by:
0
a. In paragraph (b), removing the phrase ``or notice'';
0
b. Removing paragraph (d)(2) and redesignating paragraph (d)(3) as 
paragraph (d)(2);
0
c. Adding a new paragraph (d)(3); and
0
d. In paragraph (d)(4), removing the phrase ``generally accepted 
accounting principles (GAAP)'' and adding in its place the word 
``GAAP'';
0
e. Revising paragraphs (e), (f), (g), and paragraph (h) introductory 
text;
0
f. Redesignating paragraphs (h)(1) through (h)(3) as paragraphs 
(h)(1)(i) through (h)(1)(iii);
0
g. Removing the last sentence of redesignated paragraph (h)(1)(iii); 
and
0
h. Adding new paragraph (h)(1) introductory text and paragraph (h)(2).
    The additions and revisions read as follows:


Sec.  5.55   Capital distributions by Federal savings associations.

* * * * *
    (d) * * *
    (3) Control has the same meaning as in section 10(a)(2) of the Home 
Owners' Loan Act (12 U.S.C. 1467a(a)(2)).
* * * * *
    (e) Filing requirements--(1) Application required. A Federal 
savings association must file an application with the OCC before making 
a capital distribution if:
    (i) The savings association would not be at least well capitalized, 
as set forth in 12 CFR 6.4, or would not otherwise remain an eligible 
savings association following the distribution;
    (ii) The total amount of all of the savings association's capital 
distributions (including the proposed capital distribution) for the 
applicable calendar year exceeds its net income for that year to date 
plus retained net income for the preceding two years. If the capital 
distribution is from retained earnings, the aggregate limitation in 
this paragraph may be calculated in accordance with 12 CFR 5.64(c)(2), 
substituting ``capital distributions'' for ``dividends'' in that 
section;
    (iii) The savings association's proposed capital distribution would 
reduce the amount of or retire any part of its common or preferred 
stock or retire any part of debt instruments such as notes or 
debentures included in capital under 12 CFR part 3 (other than regular 
payments required under a debt instrument approved under Sec.  5.56);
    (iv) The savings association's proposed capital distribution is 
payable in property other than cash;
    (v) The savings association is a directly or indirectly controlled 
by a mutual savings and loan holding company or by a company that is 
not a savings and loan holding company; or
    (vi) The savings association's proposed capital distribution would 
violate a prohibition contained in any applicable statute, regulation, 
or agreement between the savings association and the OCC or the OTS, or 
violate a condition imposed on the savings association in an 
application or notice approved by the OCC or the OTS.
    (2) No application required. A Federal savings association may make 
a capital distribution without filing an application with the OCC if it 
does not meet the filing requirements in paragraph (e)(1) of this 
section.
    (3) Informational copy of Federal Reserve System notice required. 
If the Federal savings association is a subsidiary of a savings and 
loan holding company that is filing a notice with the Board of 
Governors of the Federal Reserve System (Board) for a dividend solely 
under 12 U.S.C. 1467a(f) and not also under 12 U.S.C. 1467a(o)(11), and 
no application under paragraph (e)(1) of this section is required, then 
the savings association must provide an informational copy to the OCC 
of the notice filed with the Board, at the same time the notice is 
filed with the Board.
    (f) Application format--(1) Contents. The application must:
    (i) Be in narrative form;
    (ii) Include all relevant information concerning the proposed 
capital distribution, including the amount, timing, and type of 
distribution; and
    (iii) Demonstrate compliance with paragraph (h) of this section.
    (2) Schedules. The application may include a schedule proposing 
capital distributions over a specified period.
    (3) Combined filings. A Federal savings association may combine the 
application required under paragraph (e)(1) of this section with any 
other notice or application, if the capital distribution is a part of, 
or is proposed in connection with, another transaction requiring a 
notice or application under this chapter. If submitting a combined 
filing, the Federal savings association must state that the related 
notice or application is intended to serve as an application under this 
section.
    (g) Filing procedures--(1) Application. When a Federal savings 
association is required to file an application under paragraph (e)(1) 
of this section, it must file the application at least 30 days before 
the proposed declaration of dividend or approval of the proposed 
capital distribution by its board of directors. Except as provided in 
paragraph (g)(2) of this section, the OCC is deemed to have approved an 
application from an eligible savings association upon the expiration of 
30 days after the filing date of the application unless, before the 
expiration of that time period, the OCC notifies the Federal savings 
association that:
    (i) Additional information is required to supplement the 
application;
    (ii) The application has been removed from expedited review, or the 
expedited review process is extended, under 5.13(a)(2); or
    (iii) The application is denied.
    (2) Applications not subject to expedited review. An application is 
not subject to expedited review if:
    (i) The Federal savings association is not an eligible savings 
association;
    (ii) The total amount of all of the Federal savings association's 
capital distributions (including the proposed capital distribution) for 
the applicable calendar year exceeds its net income for that year to 
date plus retained net income for the preceding two years;
    (iii) The Federal savings association would not be at least 
adequately capitalized, as set forth in 12 CFR 6.4, following the 
distribution; or
    (iv) The Federal savings association's proposed capital 
distribution would violate a prohibition contained in any applicable 
statute, regulation, or agreement between the savings association and 
the OCC or the OTS, or violate a condition imposed on the savings 
association in an application or notice approved by the OCC or the OTS.
    (3) OCC filing office--(i) Appropriate licensing office. Except as 
provided in paragraph (g)(3)(ii) of this section, a Federal savings 
association that is

[[Page 18780]]

required to file an application under paragraph (e)(1) of this section 
or an informational copy of a notice under paragraph (e)(3) of this 
section must submit the application or notice to the appropriate OCC 
licensing office.
    (ii) Appropriate supervisory office. A Federal savings association 
that is required to file an application under paragraph (e)(1) of this 
section for capital distributions involving solely a cash dividend from 
retained earnings or involving a cash dividend from retained earnings 
and a concurrent cash distribution from permanent capital must submit 
the application to the appropriate OCC supervisory office.
    (h) OCC review of capital distributions. After review of an 
application submitted pursuant to paragraph (e)(1) of this section:
    (1) The OCC may deny the application in whole or in part, if it 
makes any of the following determinations:
* * * * *
    (2) The OCC may approve the application in whole or in part. 
Notwithstanding paragraph (h)(1)(iii) of this section, the OCC may 
waive any waivable prohibition or condition to permit a distribution.
* * * * *
0
41. Amend Sec.  5.56 by:
0
a. Revising paragraph (b);
0
b. In paragraph (d)(1)(i)(F), removing the word ``and'';
0
c. In paragraph (d)(1)(i)(G), removing the period and adding in its 
place ``; and'';
0
d. Adding new paragraph (d)(1)(i)(H);
0
e. In paragraph (d)(2)(i), removing ``12 CFR 197.4'' and adding in its 
place ``12 CFR 16.7'' and removing the word ``shall'' and adding in its 
place the word ``may'';
0
f. In paragraph (e)(1) introductory text, removing the phrase ``notices 
and'';
0
g. In paragraphs (e)(2) and (i), removing the phrase ``or notice'' each 
time it appears; and
0
h. Revising paragraph (h).
    The addition and revisions read as follows.


Sec.  5.56  Inclusion of subordinated debt securities and mandatorily 
redeemable preferred stock as Federal savings association supplementary 
(tier 2) capital.

* * * * *
    (b) Application procedures--(1) Application to include covered 
securities in tier 2 capital--(i) Application required. A Federal 
savings association must file an application seeking the OCC's approval 
of the inclusion of covered securities in tier 2 capital. The savings 
association may file its application before or after it issues covered 
securities, but may not include covered securities in tier 2 capital 
until the OCC approves the application and the securities are issued.
    (ii) Expedited review. The OCC is deemed to have approved an 
application from an eligible savings association to include covered 
securities in tier 2 capital upon the expiration of 30 days after the 
filing date of the application unless, before the expiration of that 
time period, the OCC notifies the Federal savings association that:
    (A) Additional information is required to supplement the 
application;
    (B) The application has been removed from expedited review, or the 
expedited review process is extended under Sec.  5.13(a)(2); or
    (C) The OCC denies the application.
    (iii) Securities offering rules. A Federal savings association also 
must comply with the securities offering rules at 12 CFR part 16 by 
filing an offering circular for a proposed issuance of covered 
securities, unless the offering qualifies for an exemption under that 
part.
    (2) Application required to prepay covered securities included in 
tier 2 capital--(i) In general. A Federal savings association must file 
an application to, and receive prior approval from, the OCC before 
prepaying covered securities included in tier 2 capital.
    The application must include:
    (A) A statement explaining why the Federal savings association 
believes that following the proposed prepayment the savings association 
would continue to hold an amount of capital commensurate with its risk; 
or
    (B) A description of the replacement capital instrument that meets 
the criteria for tier 1 or tier 2 capital under 12 CFR 3.20, including 
the amount of such instrument, and the time frame for issuance.
    (ii) Replacement covered security. If the OCC conditions approval 
of prepayment on a requirement that a Federal savings association must 
replace the covered security with a covered security of an equivalent 
amount that satisfies the requirements for tier 1 or tier 2 capital, 
the savings association must file an application to issue the 
replacement covered security and must receive prior OCC approval.
* * * * *
    (d) * * *
    (1) * * *
    (i) * * *
    (H) State that the security may be fully subordinated to interests 
held by the U.S. government in the event that the savings association 
enters into a receivership, insolvency, liquidation, or similar 
proceeding;
* * * * *
    (h) Issuance of a replacement regulatory capital instrument in 
connection with prepaying a covered security. The OCC may require a 
Federal savings association seeking prior approval to prepay a covered 
security included in tier 2 capital to issue a replacement covered 
security of an equivalent amount that qualifies as tier 1 or tier 2 
capital under 12 CFR 3.20. If the OCC imposes such a requirement, the 
savings association must complete the sale of such covered security 
prior to, or immediately after, the prepayment.\5\
---------------------------------------------------------------------------

    \5\ A Federal savings association may replace tier 2 capital 
instruments concurrent with the redemption of existing tier 2 
capital instruments.
---------------------------------------------------------------------------

* * * * *
0
42. Amend Sec.  5.58 by:
0
 a. Revising paragraph (d);
0
 b. Revising paragraph (e) introductory text;
0
c. In paragraph (e)(1), removing the word ``state'' each time it 
appears and adding in its place the word ``State'';
0
d. Revising paragraphs (e)(2), (e)(3), and (e)(4);
0
e. Revising paragraph (f)(1);
0
f. Redesignating paragraph (f)(2) as paragraph (f)(3);
0
g. Adding a new paragraph (f)(2);
0
h. In newly redesignated paragraph (f)(3), removing the word 
``applicant'' and adding in its place the word ``filer'';
0
i. Redesignating paragraphs (g) through (i) as paragraphs (h) through 
(j), respectively and adding new paragraph (g);
0
j. In the heading of newly redesignated paragraph (h), removing the 
word ``entities'' and adding in its place the word ``enterprises'';
0
k. In paragraph (h) introductory text, removing the word ``entity'' and 
adding in its place the word ``enterprises'';
0
l. In newly redesignated paragraph (i)(3), removing the word ``non-
controlling'' and adding in its place the word ``pass-through''; and
0
m. Revising newly redesignated paragraph (j).
    The additions and revisions read as follows.


Sec.  5.58   Pass-through investments by a Federal savings association.

* * * * *
    (d) Definitions. For purposes of this section:
    (1) Enterprise means any corporation, limited liability company, 
partnership, trust, or similar business entity.
    (2) Pass-through investment means an investment authorized under 12 
CFR

[[Page 18781]]

160.32(a). A pass-through investment does not include a Federal savings 
association holding interests in a trust formed for the purposes of 
securitizing assets held by the savings association as part of its 
business or for the purposes of holding multiple legal titles of motor 
vehicles or equipment in conjunction with lease financing transactions.
    (e) Pass-through investments; notice procedure. Except as provided 
in paragraphs (f) through (i) of this section, a Federal savings 
association may make a pass-through investment, directly or through its 
operating subsidiary, in an enterprise that engages in an activity 
described in Sec.  5.38(f)(5) or in an activity that is substantively 
the same as a previously approved activity, as defined in Sec.  5.3, by 
filing a written notice. The Federal savings association must file this 
written notice with the appropriate OCC licensing office no later than 
10 days after making the investment. The written notice must:
* * * * *
    (2) State:
    (i) Which paragraphs of Sec.  5.38(f)(5) describe the activity; or
    (ii) If the activity is substantively the same as a previously 
approved activity, as defined in Sec.  5.3:
    (A) How, the activity is substantively the same as a previously 
approved activity;
    (B) The citation to the applicable precedent; and
    (C) That the activity will be conducted in accordance with the same 
terms and conditions applicable to the previously approved activity;
    (3) Certify that the Federal savings association is well 
capitalized and well managed, as defined in Sec.  5.3, at the time of 
the investment;
    (4) Describe how the Federal savings association has the ability to 
prevent the enterprise from engaging in an activity that is not set 
forth in Sec.  5.38(f)(5) or not contained in published OCC (including 
published former OTS) precedent for previously approved activities, as 
defined in Sec.  5.3; or how the savings association otherwise has the 
ability to withdraw its investment;
* * * * *
    (f) * * * (1) In general. A Federal savings association must file 
an application and obtain prior approval before making or acquiring, 
either directly or through an operating subsidiary, a pass-through 
investment in an enterprise if the pass-through investment does not 
qualify for the notice procedure set forth in paragraph (e) of this 
section because the savings association is unable to make the 
representation required by paragraph (e)(2) or the certification 
required by paragraphs (e)(3) or (e)(7) of this section. The 
application must include the information required in paragraphs (e)(1) 
and (e)(4) through (e)(6) of this section and paragraphs (e)(2), 
(e)(3), and (e)(7) of this section, if possible. If the Federal savings 
association is unable to make the representation set forth in paragraph 
(e)(2) of this section, the savings association's application must 
explain why the activity in which the enterprise engages is a 
permissible activity for a Federal savings association and why the 
filer should be permitted to hold a pass-through investment in an 
enterprise engaged in that activity. A Federal savings association may 
not make a pass-through investment if it is unable to make the 
representations and certifications specified in paragraphs (e)(1) and 
(e)(4) through (e)(6) of this section.
    (2) Expedited review. An application submitted by a Federal savings 
association is deemed approved by the OCC as of the 10th day after the 
application is received by the OCC if:
    (A) The Federal savings association makes the representation 
required by paragraph (e)(2) and the certification required by 
paragraph (e)(3) of this section;
    (B) The book value of the Federal savings association's pass-
through investment for which the application is being submitted is no 
more than 1% of the savings association's capital and surplus;
    (C) No more than 50% of the enterprise is owned or controlled by 
banks or savings associations subject to examination by an appropriate 
Federal banking agency or credit unions insured by the National Credit 
Union Association; and
    (D) The OCC has not notified the Federal savings association that 
the application has been removed from expedited review, or the 
expedited review process is extended, under Sec.  5.13(a)(2).
* * * * *
    (g) Pass-through investments; no application or notice required. A 
Federal savings association may make or acquire, either directly or 
through an operating subsidiary, a pass-through investment in an 
enterprise, without an application or notice to the OCC, if:
    (i) The activities of the enterprise are limited to those to 
activities previously reported by the savings association in connection 
with the making or acquiring of a pass-through investment;
    (ii) The activities in the enterprise continue to be legally 
permissible for a Federal savings association;
    (iii) The savings association's pass-through investment will be 
made in accordance with any conditions imposed by the OCC or OTS in 
approving any prior pass-through investment conducting these 
activities;
    (iv) The savings association is able to make the representations 
and certifications specified in paragraphs (e)(3) through (e)(7) of 
this section; and
    (v) The enterprise will not be a subsidiary for purposes of 12 
U.S.C. 1828(m).
* * * * *
    (j) Exceptions to rules of general applicability. Sections 5.8, 
5.10, and 5.11 do not apply to this section. However, if the OCC 
concludes that an application presents significant or novel policy, 
supervisory, or legal issues, the OCC may determine that some or all 
provision in Sec. Sec.  5.8, 5.10, and 5.11 apply.
* * * * *
0
43. Amend Sec.  5.59 by:
0
a. In paragraph (a), removing ``1464'' and adding in its place 
``1464(c)(4)(B)'';
0
b. In paragraph (b) introductory text, adding ``(12 U.S.C. 1828(m))'' 
after the phrase ``Insurance Act'';
0
c. In paragraph (d)(2), removing the phrase ``generally accepted 
accounting principles (GAAP)'' and adding in its place the word 
``GAAP'';
0
 d. In paragraphs (e)(1), (e)(2), (f)(6)(i), and (h)(1)(ii), removing 
the word ``state'' and adding the word ``State'' each time it appears;
0
e. In paragraph (e)(4), removing the word ``HOLA'' and adding in its 
place the phrase ``Home Owners' Loan Act, 12 U.S.C. 1464(c)'';
0
f. In paragraph (e)(9), removing the word ``shall'' and adding in its 
place the word ``must'' each time it appears;
0
g. In paragraph (g)(1), removing the word ``HOLA'' and adding in its 
place the phrase ``Home Owners' Loan Act (12 U.S.C. 1464(c)(4)(B))'';
0
h. In paragraph (g)(1), removing ``Sec.  24.6'' and adding in its place 
``12 CFR part 24'';
0
i. In paragraph (g)(2), removing the phrase ``HOLA and parts 5 and 160 
of this chapter'' and adding in its place the phrase ``Home Owners' 
Loan Act (12 U.S.C. 1464(c)), this part 5, and 12 CFR part 160''; and
0
j. In paragraph (h)(1)(i) introductory text, adding the phrase ``(12 
U.S.C. 1828(m))'' after the word ``Act'';
0
k. In paragraph (h)(1)(ii), removing the phrase ``an applicant'' and 
adding in its place the phrase ``a filer'', and removing the word 
``applicants'' and adding in its place the word ``filers'';
0
l. In paragraphs (h)(2)(i) and (h)(3), removing the word ``applicant'' 
and

[[Page 18782]]

adding in its place the word ``filer'' each time it appears;
0
m. In paragraph (h)(2), removing the phrase ``is not eligible for 
expedited review under Sec.  5.13(a)(2)'' and adding in its place the 
phrase ``has been removed from expedited review, or the expedited 
review period is extended, under Sec.  5.13(a)(2)''; and
0
n. Revising paragraph (h)(2)(ii)(A).
    The revision reads as follows:


Sec.  5.59   Service corporations of Federal savings associations.

* * * * *
    (h) * * *
    (2) * * *
    (ii) * * *
    (A) The savings association is well capitalized and well managed, 
as defined in Sec.  5.3; and
* * * * *


Sec.  5.62  [Amended]

0
44. Section 5.62 is amended by removing the word ``shall'' and adding 
in its place the word ``must''.


Sec.  5.64  [Amended]

0
45. Section 5.64 is amended by:
0
a. In paragraph (c)(2)(i), removing the word ``shall'' and adding in 
its place the word ``does'';
0
b. In paragraph (c)(2)(iii), removing the phrase ``shall apply'' and 
adding in its place the word ``applies'';
0
c. In paragraph (c)(3), removing the word ``shall'' and adding in its 
place the word ``must''; and
0
d. Removing paragraph (d).
0
46. Revise Sec.  5.66 to read as follows.


Sec.  5.66   Dividends payable in property other than cash.

    In addition to cash dividends, directors of a national bank may 
declare dividends payable in property, with the approval of the OCC. A 
national bank must submit a request for prior approval of a noncash 
dividend to the appropriate OCC licensing office. The dividend is 
equivalent to a cash dividend in an amount equal to the actual current 
value of the property, regardless of whether the book value is higher 
or lower under GAAP. Before the dividend is declared, the bank should 
show the difference between actual value and book value on the books of 
the national bank as a gain or loss, as applicable, and the dividend 
should then be declared in the amount of the actual current value of 
the property being distributed.
0
47. Revise Sec.  5.67 to read as follows.


Sec.  5.67   Fractional shares.

    A national bank issuing additional stock may adopt arrangements to 
preclude the issuance of fractional shares. The bank may remit the cash 
equivalent of the fraction not being issued to those to whom fractional 
shares would otherwise be issued. The cash equivalent is based on the 
market value of the stock, if there is an established and active market 
in the national bank's stock. In the absence of such a market, the cash 
equivalent is based on a reliable and disinterested determination as to 
the fair market value of the stock if such stock is available. The bank 
may propose an alternate method in the application for the stock 
issuance filed with the OCC.
0
48. Amend Sec.  5.70 by:
0
a. In paragraphs (c)(1)(iv) and (c)(1)(v), removing the word ``state'' 
and adding in its place the word ``State'' each time it appears;
0
b. In paragraph (d)(1) and paragraph (d)(2) introductory text, removing 
the word ``shall'' and adding in its place the word ``must'' each time 
it appears; and
0
c. Adding new paragraph (d)(3).
    The addition reads as follows.


Sec.  5.70   Federal branches and agencies.

* * * * *
    (d) * * *
    (3) Biographical and Financial Reports. The OCC may require any 
senior executive officer of a Federal branch or agency submitting a 
filing to submit an Interagency Biographical and Financial Report, 
available at www.occ.gov, and legible fingerprints.
* * * * *

    Dated: March 5, 2020.
Joseph M. Otting,
Comptroller of the Currency.
[FR Doc. 2020-04938 Filed 4-1-20; 8:45 am]
 BILLING CODE 4810-33-P