[Federal Register Volume 91, Number 7 (Monday, January 12, 2026)]
[Proposed Rules]
[Pages 1098-1101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-00372]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 91, No. 7 / Monday, January 12, 2026 /
Proposed Rules
[[Page 1098]]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 5
[Docket ID OCC-2025-0768]
RIN 1557-AF47
National Bank Chartering
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
proposing to amend its rule related to chartering of national banks to
clarify the longstanding authority of national banks limited to the
operations of trust companies and activities related thereto to engage
in non-fiduciary activities in addition to their fiduciary activities.
DATES: Comments must be received on or before February 11, 2026.
ADDRESSES: Commenters are encouraged to submit comments through the
Federal eRulemaking Portal. Please use the title ``National Bank
Chartering'' to facilitate the organization and distribution of the
comments. You may submit comments by any of the following methods:
Federal eRulemaking Portal--Regulations.gov:
Go to https://regulations.gov/. Enter Docket ID ``OCC-2025-0768''
in the Search Box and click ``Search.'' Public comments can be
submitted via the ``Comment'' box below the displayed document
information or by clicking on the document title and then clicking 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 site, please call
1-866-498-2945 (toll free) Monday-Friday, 9 a.m.-5 p.m. EST, or 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.
Instructions: You must include ``OCC'' as the agency name and
Docket ID ``OCC-2025-0174'' 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 action by the following method:
Viewing Comments Electronically--Regulations.gov:
Go to https://regulations.gov/. Enter Docket ID ``OCC-2025-0768''
in the Search Box and click ``Search.'' Click on the ``Dockets'' tab
and then the document's title. After clicking the document's title,
click the ``Browse All 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 Comments Results'' options on the left side
of the screen. Supporting materials can be viewed by clicking on the
``Browse Documents'' tab. Click 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 checking the ``Supporting & Related Material''
checkbox. For assistance with the Regulations.gov site, please call 1-
866-498-2945 (toll free) Monday-Friday, 9 a.m.-5 p.m. EST, or email
[email protected].
The docket may be viewed after the close of the comment period in
the same manner as during the comment period.
FOR FURTHER INFORMATION CONTACT: Christopher Crawford, Acting Assistant
Director; Marjorie Dieter, Counsel, Chief Counsel's Office, 202-649-
5490, Office of the Comptroller of the Currency, 400 7th Street SW,
Washington, DC 20219. If you are deaf, hard of hearing, or have a
speech disability, please dial 7-1-1 to access telecommunications relay
services.
SUPPLEMENTARY INFORMATION:
I. Description of the Proposed Rule
The OCC charters national banks under the authority of the National
Bank Act, 12 U.S.C. 1 et seq. The National Bank Act ``constitut[es] by
itself a complete system for the establishment and government of
national banks.'' \1\ Congress's grant of authority to the OCC with
regard to the establishment of national banks under the National Bank
Act culminates in the OCC's issuance of formal certificates authorizing
national banks to conduct business, which are generally referred as
charters.\2\ In 1978, Congress amended the National Bank Act to
expressly provide: ``A National Bank Association, to which the
Comptroller of the Currency has heretofore issued or hereafter issues
such [charter] certificate, is not illegally constituted solely because
its operations are or have been required by the Comptroller of the
Currency to be limited to those of a trust company and activities
related thereto.'' \3\
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\1\ Cook Cnty. Nat'l Bank v. United States, 107 U.S. 445, 448
(1883).
\2\ See 12 U.S.C. 27.
\3\ Financial Institutions Regulatory and Interest Rate Control
Act of 1978, Sec. 1504, Public Law 95-630, 92 Stat. 3641, 3713
(1978).
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The OCC has referenced this express endorsement of its authority
for nearly fifty years when chartering national banks whose operations
are limited to those of a trust company and activities related thereto,
which are commonly referred to as ``national trust banks.'' The OCC
currently supervises approximately 60 national trust banks. The
majority of the national trust banks are uninsured, but a few hold
deposits and are insured by the Federal Deposit Insurance Corporation.
The OCC is proposing amending its chartering regulation, 12 CFR
5.20, to more closely align with its statutory authorization to charter
national banks limited to the operations of a trust company and
activities related thereto. Section 5.20 provides for the general
procedures for filing an application, the OCC's review, procedures for
organizing the new bank, and other requirements. Since 1996, Sec.
5.20(e)(1)(i) has addressed certain statutory requirements for the
OCC's chartering of a national bank. The
[[Page 1099]]
regulation states that the OCC charters national banks under the
authority of the National Bank Act and includes the requirement that a
national bank's name must include the word ``national.'' \4\
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\4\ See 12 U.S.C. 22, 30(a).
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In 2003, the OCC proposed amendments to Sec. 5.20(e)(1)(i) ``to
clarify that a limited purpose national bank may exist with respect to
activities other than fiduciary activities, provided the activities in
question are within the business of banking.'' \5\ This proposal
included only the sentence: ``The bank may be a special purpose bank
that limits its activities to fiduciary activities or to any other
activities within the business of banking.'' \6\
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\5\ 68 FR 6363, 6370-71 (Feb. 7, 2003).
\6\ 68 FR at 6373.
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Commenters were concerned that the reference to the business of
banking in the proposed rule was ``too broad.'' \7\ In response to this
concern, the final rule added another sentence to Sec. 5.20(e)(1)(i):
``A special purpose bank that conducts activities other than fiduciary
activities must conduct at least one of the following three core
banking functions: Receiving deposits; paying checks; or lending
money.'' The OCC did so ``to provide further clarification of the scope
of activities permissible for a limited purpose national bank, and . .
. . amended this provision to require limited purpose national banks to
conduct at least one of the following core banking functions: (1)
Receiving deposits; (2) paying checks; or (3) lending money. These
functions are based on 12 U.S.C. 36, which identifies activities that
cause a facility to be considered a bank branch.'' \8\ The operations
of a national trust bank typically include performing fiduciary
activities under the authority of 12 U.S.C. 92a,\9\ a separate source
of authority from those activities within the business of banking under
12 U.S.C. 24(Seventh).\10\
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\7\ 68 FR 70122, 70126 (Dec. 17, 2003).
\8\ 68 FR at 70126.
\9\ See OCC Interpretive Letter No. 1170 (July 22, 2020); OCC
Interpretive Letter No. 1078 (Apr. 19, 2007); OCC Interpretive
Letter No. 1176 (Jan. 11, 2021).
\10\ Compare 12 U.S.C. 24(Seventh) with 12 U.S.C. 92a.
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The OCC's addition of language to Sec. 5.20(e)(1)(i) was to
address special purpose banks engaging in only activities within the
business of banking. As noted in the preamble to the 2003 final rule,
``The purpose of this proposed change was to clarify that a limited
purpose national bank may exist with respect to activities other than
fiduciary activities, provided the activities in question are part of
the business of banking.'' \11\ In other words, the language in amended
Sec. 5.20(e)(1)(i) referencing a ``bank that conducts activities other
than fiduciary activities'' was intended to clarify that the provision
did not address national trust banks; the provision addressed special
purpose banks that would engage in activities other than those of a
trust company. The language was not intended, and has never been
interpreted by the OCC, to circumscribe national trust bank activities,
i.e., to prohibit a national trust bank from engaging in non-fiduciary
activities. The authority to charter national trust banks under 12
U.S.C. 27(a) is clear on its face.
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\11\ 68 FR at 70126.
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Nonetheless, the OCC believes that the language added in 2003 has
the potential to raise confusion about the scope of the OCC's
chartering authority under 12 U.S.C. 27(a) and the activities of
national trust banks. Because the language does not explicitly exclude
all national trust bank activities (just fiduciary activities), it
could be mistakenly read to also impose limits on the activities of
national trust banks that are different than those articulated in the
last sentence of section 27(a). Such a reading would conflict with the
intent of the regulatory text added in 2003, which did not intend to
circumscribe the OCC's authority to charter national trust banks.
Moreover, reading the regulation to apply to national trust bank
charters would run contrary to the OCC's long-held interpretation and
historical practice. The OCC has never interpreted Sec. 5.20(e)(1)(i)
in a way that restricts national trust banks. Both before and after the
2003 final rule, the OCC has chartered national trust banks that engage
in activities that are not fiduciary. For example, the OCC considers
custody and safekeeping activities to be generally non-fiduciary and
authorized for national banks as part of the business of banking under
12 U.S.C. 24(Seventh).\12\ National trust banks also frequently conduct
custody activities and currently hold nearly $2 trillion in assets in
custody or safekeeping accounts.\13\
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\12\ See 84 FR 17969 (Apr. 29, 2019); OCC Interpretive letter
No. 1078 at 4 (May 2007). National banks may also provide custody
services in a fiduciary capacity when authorized in accordance with
12 U.S.C. 92a.
\13\ This is derived from ``custody and safekeeping accounts''
information reported on Schedule RC-T of the Consolidated Reports of
Condition and income.
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In sum, given a potential lack of clarity in the regulation and the
risk that a misreading of the regulation may impair the exercise of the
OCC's statutory authorities granted to it by the National Bank Act, the
OCC is proposing to amend Sec. 5.20(e)(1)(i) to replace the term
``fiduciary activities'' with ``the operations of a trust company and
activities related thereto,'' as stated in 12 U.S.C. 27(a). The OCC
believes that these amendments will eliminate potential confusion as to
the intent, and OCC's interpretation, of the existing regulation. The
OCC also believes that these revisions will reinforce the OCC's
reliance on the statutory terms of its chartering authorities.
The OCC is also proposing to make a conforming amendment to 12 CFR
5.20(l) by replacing the term ``fiduciary activities'' with ``the
operations of a trust company and activities related thereto'' to align
paragraph (l) with paragraph (e) and reflect consistent language with
12 U.S.C. 27(a).\14\ Paragraph (l) was added in 1996 as part of the
OCC's reorganization of 12 CFR part 5.\15\ In adding this paragraph,
the OCC did not explain why it used the term ``fiduciary activities''
rather than referencing ``trust powers'' or ``trust business'' as used
in the former 12 CFR 5.22.\16\ Further, the reference to special
purpose banks in paragraph (l) is illustrative and not restrictive.
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\14\ Paragraph (l) also applies to special purpose Federal
savings associations.
\15\ See 61 FR at 60346.
\16\ See 12 CFR 5.22 (1995).
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To be clear, by proposing the above noted revisions in 12 CFR 5.20,
the OCC intends to neither expand nor contract the OCC's authority to
charter a national bank. As discussed above, the National Bank Act
``constitute[es] by itself a complete system for the establishment and
government of national banks'' \17\ and is ``the source of the
Comptroller's powers and duties in the granting of a national bank
charter.'' \18\ Revising a potentially unclear provision of the OCC's
regulations that purports to interpret its statutory authority will not
deprive the public of information regarding the OCC's chartering and
supervision authorities. As it always has, the OCC will evaluate all
applications to charter a national bank within the confines of and
consistent with the authority that Congress has granted to it under the
National Bank Act.
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\17\ Cook Cnty. Nat'l Bank, 107 U.S. at 448.
\18\ Webster Groves Tr. Co. v. Saxon, 370 F.2d 381, 384 (8th
Cir. 1996).
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II. Request for Comments
The OCC requests feedback on all aspects of the proposed rule. The
OCC specifically requests comment on whether there is alternative
language that the OCC could use to make the
[[Page 1100]]
regulation more clear with respect to the OCC's chartering authority
for national banks limited to the operations of a trust company and
activities related thereto.
III. Regulatory Analyses
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 \19\ (PRA) states that no
agency may conduct or sponsor, nor is the respondent required to
respond to, an information collection unless it displays a currently
valid Office of Management and Budget (OMB) control number. The
agencies have reviewed this proposed rule and determined that it does
not create any information collection or revise any existing collection
of information. Accordingly, no PRA submissions to OMB will be made
with respect to this proposed rule.
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\19\ 44 U.S.C. 3501-3521.
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Regulatory Flexibility Act
The Regulatory Flexibility Act \20\ (RFA) requires an agency to
consider the impact of its proposed rules on small entities. In
connection with a proposed rule, the RFA generally requires an agency
to prepare an Initial Regulatory Flexibility Analysis (IRFA) describing
the impact of the rule on small entities, unless the head of the agency
certifies that the proposed rule will not have a significant economic
impact on a substantial number of small entities and publishes such
certification along with a statement providing the factual basis for
such certification in the Federal Register. An IRFA must contain: (1) a
description of the reasons why action by the agency is being
considered; (2) a succinct statement of the objectives of, and legal
basis for, the proposed rule; (3) a description of and, where feasible,
an estimate of the number of small entities to which the proposed rule
will apply; (4) a description of the projected reporting,
recordkeeping, and other compliance requirements of the proposed rule,
including an estimate of the classes of small entities that will be
subject to the requirements and the type of professional skills
necessary for preparation of the report or record; (5) an
identification, to the extent practicable, of all relevant Federal
rules that may duplicate, overlap with, or conflict with the proposed
rule; and (6) a description of any significant alternatives to the
proposed rule that accomplish its stated objectives.
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\20\ Id.
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The OCC currently supervises 1,003 institutions (commercial banks,
trust companies, Federal savings associations, and branches or agencies
of foreign banks),\21\ of which approximately 609 are small entities
under the RFA.\22\
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\21\ Based on data accessed using the OCC's Financial
Institutions Data Retrieval System on December 18, 2025.
\22\ The OCC bases its estimate of the number of small entities
on the Small Business Administration's size thresholds for
commercial banks and savings institutions, and trust companies,
which are $850 million and $47 million, respectively. Consistent
with the General Principles of Affiliation, 13 CFR 121.103(a), the
OCC counted the assets of affiliated financial institutions when
determining if it should classify an OCC-supervised institution as a
small entity. The OCC used average quarterly assets in December 31,
2024 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 Size
Standards.
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In general, the OCC classifies the economic impact on an individual
small entity as significant if the total estimated impact in one year
is greater than 5 percent of the small entity's total annual salaries
and benefits or greater than 2.5 percent of the small entity's total
non-interest expense. Furthermore, the OCC considers 5 percent or more
of OCC-supervised small entities to be a substantial number, and at
present, 30 OCC-supervised small entities would constitute a
substantial number. This proposed rulemaking would impose no new
mandates, and thus no direct costs, on affected OCC-supervised
institutions.
Unfunded Mandates Reform Act
The OCC has analyzed the proposed rule under the factors in the
Unfunded Mandates Reform Act of 1995 (UMRA).\23\ Under this 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 ($187 million as adjusted annually for
inflation). Pursuant to section 202 of the UMRA,\24\ if a proposed rule
meets this UMRA threshold, the OCC would need to prepare a written
statement that includes, among other things, a cost-benefit analysis of
the proposal. The UMRA does not apply to regulations that incorporate
requirements specifically set forth in law.
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\23\ 2 U.S.C. 1531 et seq.
\24\ Id. 1532.
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This proposed rulemaking would impose no new mandates, and thus no
direct costs, on affected OCC-supervised institutions. The OCC,
therefore, concludes that the proposed rule would not result in an
expenditure of $187 million or more annually by state, local, and
tribal governments, or by the private sector. Accordingly, the OCC has
not prepared the written statement described in section 202 of the
UMRA.
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 agencies will
consider, consistent with 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 agencies
should consider in determining the effective date and administrative
compliance requirements for a final rule.
Providing Accountability Through Transparency Act of 2023
The Providing Accountability Through Transparency Act of 2023, 5
U.S.C. 553(b)(4), requires that a notice of proposed rulemaking include
the internet address of a summary of not more than 100 words in length
of a proposed rule, in plain language, that shall be posted on the
internet website www.regulations.gov.
The Office of the Comptroller of the Currency proposes to amend its
rule related to chartering of national banks to clarify the
longstanding authority of national banks limited to the operations of
trust companies and activities related thereto to engage in non-
fiduciary activities in addition to their fiduciary activities.
The proposal and the required summary can be found at https://www.regulations.gov by searching for Docket ID OCC-2025-0768 and
https://occ.gov/topics/laws-and-regulations/occ-regulations/proposed-issuances/index-proposed-issuances.html.
Executive Order 12866
Executive Order 12866, titled ``Regulatory Planning and Review,''
as amended, requires the Office of Information and Regulatory Affairs
(OIRA), Office of Management and Budget to determine whether a
[[Page 1101]]
proposed rule is a ``significant regulatory action'' prior to the
disclosure of the proposed rule to the public. If OIRA determines the
proposed rule to be a ``significant regulatory action,'' Executive
Order 12866 requires the agencies to conduct a cost-benefit analysis of
the proposed rule. Executive Order 12866 defines a ``significant
regulatory action'' as a regulatory action that is likely to (1) have
an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in Executive Order 12866.
OMB has determined that this proposed rule is not a ``significant
regulatory action'' as defined in section 3(f) of Executive Order
12866.
Executive Order 14192
Executive Order 14192, titled ``Unleashing Prosperity Through
Deregulation,'' requires that an agency, unless prohibited by law,
identify at least 10 existing regulations to be repealed when the
agency publicly proposes for notice and comment or otherwise
promulgates a new regulation with total costs greater than zero.
Executive Order 14192 further requires that new incremental costs
associated with new regulations shall, to the extent permitted by law,
be offset by the elimination of existing costs associated with at least
ten prior regulations. This rule is not an Executive Order 14192
regulatory action because this rule is not significant under Executive
Order 12866.
List of Subjects in 12 CFR Part 5
Administrative practice and procedure, National banks, Reporting
and recordkeeping requirements, Savings associations, Securities.
Authority and Issuance
For the reasons set forth in the preamble, and under the authority
of 12 U.S.C. 93a, the OCC proposes to amend chapter I of title 12 of
the Code of Federal Regulations as follows:
PART 5--RULES, POLICIES, AND PROCEDURES FOR CORPORATE ACTIVITIES
0
1. The authority citation for part 5 continues 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).
0
2. Amend Sec. 5.20 by revising and republishing paragraphs (e)(1)(i)
and (l) to read as follows:
Sec. 5.20 Organizing a national bank or Federal savings association.
* * * * *
(e) * * *
(1) * * *
(i) The OCC charters a national bank under the authority of the
National Bank Act of 1864, as amended, 12 U.S.C. 1 et seq. The bank may
be a special purpose bank that limits its activities to the operations
of a trust company and activities related thereto or to any other
activities within the business of banking. A special purpose bank that
conducts activities other than the operations of a trust company and
activities related thereto must conduct at least one of the following
three core banking functions: Receiving deposits; paying checks; or
lending money. The name of a proposed national bank must include the
word ``national.''
* * * * *
(l) * * *
(1) In general. A filer for a national bank or Federal savings
association charter that will limit its activities to the operations of
a trust company and activities related thereto, credit card operations,
or another special purpose must adhere to established charter
procedures with modifications appropriate for the circumstances as
determined by the OCC. A filer for a national bank or Federal savings
association charter that will have a community development focus must
also adhere to established charter procedures with modifications
appropriate for the circumstances as determined by the OCC. A national
bank that seeks to invest in a bank or savings association with a
community development focus must comply with applicable requirements of
12 CFR part 24. A Federal savings association that seeks to invest in a
bank or savings association with a community development focus must
comply with Sec. 160.36 or any other applicable requirements.
* * * * *
Jonathan V. Gould,
Comptroller of the Currency.
[FR Doc. 2026-00372 Filed 1-9-26; 8:45 am]
BILLING CODE 4810-33-P