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Federal Reserve Bank OF DALLAS ROBERT D. M c T E E R , J R . DALLAS, TEXA S P R E S ID E N T and chief executive officer January 5 1996 75265-5906 Notice 96-05 TO: The Chief Executive Officer of each member bank and others concerned in the Eleventh Federal Reserve District SUBJECT Request for Public Comment on Proposed Amendments to Regulation K (International Banking Operations) DETAILS The Board of Governors of the Federal Reserve System has issued for public comment proposed amendments to Regulation K (International Banking Operations). The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 (Interstate Act) removed geographic restrictions on interstate banking by foreign banks effective September 29, 1995, and requires certain foreign banks without U.S. deposit-taking offices to select a home state for the first time. The proposed amendments to Regulation K would require these foreign banks to select a home state by March 31, 1996, and would immediately remove outdated restrictions on certain mergers by U.S. bank subsidiaries of foreign banks outside the home state of the foreign bank. The Board is also requesting comment on other aspects of the Interstate Act as it applies to foreign banks. The Board must receive comments by February 5, 1996. Comments should be addressed to William W. Wiles, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, N.W., Washington, D.C. 20551. All comments should refer to Docket No. R-0911. ATTACHMENT A copy of the Board’s notice as it appears on pages 67050-54, Vol. 60, No. 249, of the Federal Register dated December 28, 1995, is attached. For additional copies, bankers and others are encouraged to use one of the following toll-free numbers in contacting the Federal Reserve Bank of Dallas: Dallas Office (800) 333 -4460; El Paso Branch Intrastate (800) 592-1631, Interstate (800) 351-1012; Houston Branch Intrastate (800) 392-4162, Interstate (800) 221-0363; San Antonio Branch Intrastate (800) 292-5810. This publication was digitized and made available by the Federal Reserve Bank of Dallas' Historical Library (FedHistory@dal.frb.org) MORE INFORMATION For more information, please contact Howard Edmonds at (214) 922-6278. For additional copies of this Bank’s notice, please contact the Public Affairs Department at (214) 922-5254. Sincerely yours, FEDERAL RESERVE SYSTEM 12 CFR Part 211 {R egulation K; D ocket No. R -0896] Jnternational Operations of United States Banking Organizations .AGENCY: Board of Governors of the Federal Reserve System. Final rule. ACTION: This final rule amends Subpart A of Regulation K (International Operations of U.S. Banking Organizations) to provide expanded general consent authority for investments in foreign companies by SUMMARY: Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67051 U.S. banking organizations that are strongly capitalized and well managed. This expanded authority is designed to permit U.S. banking organizations meeting these requirements to make larger investments without the need for prior approval or review. Certain investments or activities, however, are not eligible for the expanded authority. The final rule requires an investor making use of the expanded authority to provide the Board with certain information after an investment has been made. In addition, for those investments requiring prior notice to the Board, the rule would streamline the processing of such notices. EFFECTIVE DATE: December 21,1995. On September 25,1995, the Board requested public comment on a proposed rule that would expand the general consent authority for strongly capitalized and well-managed banking organizations. 60 FR 49350. The expanded general consent authority (expanded authority) was intended to reduce the burden associated with obtaining approval for such investments for U.S. banking organizations meeting these requirements. The comment period ended on October 30,1995. The Board received nine public comments on the proposal. Comments were submitted by six banking organizations and three trade associations. The Board has considered the comments and, as a result of its further review, has made FOR FURTHER INFORMATION CONTACT: several changes to address these Kathleen M. O’Day, Associate General comments in the final rule. Counsel (202/452-3786), Sandra L. The final rule removes the current $25 Richardson, Managing Senior Counsel million cap on general consent (202/452-6406), Jonathan D. Stoloff, investments, which is currently the Senior Attorney (202/452-3269), or binding constraint on such investment Andres L. Navarrete, Attorney (202/ in almost all cases, and instead ties the 452-2300), Legal Division; William A. expanded general consent limits to the Ryback, Associate Director (202/452capital of the investor. An aggregate 2722), Michael G. Martinson, Assistant Director (202/452-2798), or Betsy Cross, limit on investments made in any 12month period under the expanded Manager (202/452-2574), Division of authority is established. The final rule Banking Supervision and Regulation, •also specifies the nature of investments Board of Governors of the Federal eligible for the expanded authority, as Reserve System. For the users of Telecommunication Device for the Deaf well as the types of activities that may be conducted by the organization in (TDD) only, please contact Dorothea which the investment is to be made. Thompson (202/452-3544), Board of Comments received regarding each of Governors of the Federal Reserve these areas are discussed below. System, 20th and C Streets, N.W., Washington, D.C. 20551. Investor Eligibility for Expanded General Consent SUPPLEMENTARY INFORMATION: Subpart A of the Board’s Regulation K sets out the The final rule limits the expanded rules governing the foreign activities of general consent authority to those U.S. banking organizations, including investors that are strongly capitalized procedures for making investments in and well managed. The expanded foreign banking and non-banking authority is available for investments by organizations. Under section 211.5(c), member banks, bank holding all such investments, whether made companies, Edge corporations that are directly or indirectly, are required to be not engaged in banking, and agreement made in accordance with the general corporations. The expanded authority is consent, prior notice, or specific consent available only where the investor, its procedures contained in that paragraph. parent member bank, if any, and the 12 CFR 211.5(c). No prior notice or bank holding company are strongly application is required for any capitalized and well managed, as those investment that falls within the general terms are defined by the Board. Strongly consent authority. Such authority at capitalized, in relation to member present is limited to investments where banks, is defined with reference to the the total amount invested in any one definition of “well capitalized” set out organization, in one transaction or a in the prompt corrective action series of transactions, does not exceed standards, which requires, at a the lesser of $25 million or 5 percent of minimum, a 6 percent tier 1 and 10 the investor’s Tier 1 capital where the percent total risk-based capital ratio and investor is a member bank, bank holding a leverage ratio of 5 percent.2 12 CFR company, or Edge corporation engaged 208.33(b)(1). Edge or agreement in banking.1 • In the case of an Edge corporation not engaged in banking, the relevant general consent limit is the lesser of $25 m illion or 25 percent of its Tier 1 capital. 2The member bank also may not be subject to any written agreement, order, capital directive, or prompt corrective action directive issued by the Board to meet and maintain a specific capital level for any capital measure. 12 CFR 208.33(b)(1). corporations and bank holding companies are required to have a total risk-based capital ratio of 10 percent or more in order to be considered strongly capitalized for purposes of the expanded authority. One commenter asked for clarification with respect to the applicability of the capital tests, maintaining that the capital requirement should apply only to the investor and entities that control the investor. Section 211.5(c)(2)(i)(F) of the proposed rule indicates that this is in fact the requirement. Another commenter pointed out that risk-based capital ratios have not been applicable previously to Edge corporations not engaged in banking. The Board notes this comment but considers that calculating such a ratio would not impose an undue burden on those investors seeking to utilize the expanded authority. The definition of well managed included in the proposed rule provided that, in order to be considered well managed, the Edge or agreement corporation, its parent member bank, if any, and the bank holding company must each have received a composite rating of at least 1 or 2, with no component below 3, at its most recent examination or review. Comments submitted advocated relying solely upon the composite rating for purposes of the “well managed” definition. The final rule incorporates this change. However, an additional element also has been incorporated in the definition to clarify that any investor that is under a formal supervisory action would be ineligible to take advantage of the expanded authority. The Board believes the existence of any such supervisory action would be indicative of managerial deficiencies such that the expanded authority should not be available. Individual Investment Limit Limits were proposed on the expanded authority that were tied to the level of capital of the investor. For Edge or agreement corporations, the relevant limits were proposed to be no more than the lesser of 20 percent of the Edge or agreement corporation’s tier 1 capital or 2 percent of the tier 1 capital of its parent member bank. For member banks and bank holding companies, the proposed limit was no more than 2 percent of tier 1 capital. One commenter proposed that the limit be raised to at least 2.5 percent of total capital. Several commenters noted that the existing general consent authority in Regulation K sets the limit at 5 percent of tier 1 capital, and advocated retention of the higher limit. 67052 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations The Board notes, however, that the investments and not to investments current limit is expressed as the lesser made pursuant to prior notice or o f $25 million or 5 percent of tier 1 specific consent. capital; the $25 million limit on general However, one commenter argued that consent investments has proved to be investments made under existing the constraining factor, particularly for general consent authority should not U.S. banking organizations that would count toward the aggregate limit meet the strongly capitalized standard. because once the aggregate limit is The Board believes that a general reached, prior notice would be required consent limit of 5 percent of tier 1 for small investments representing little capital, in the absence of an absolute risk to the investor. The Board agrees dollar cap, would be too high even for that the additional regulatory burden organizations that are strongly associated with including investments capitalized and well managed because made under the existing general consent an initial capital investment in, for example, a subsidiary, may be leveraged authority in calculating the aggregate many times resulting in a potential total limits outweighs any supervisory benefits. Accordingly, the aggregate exposure far in excess of the initial 5% limit shall apply only to investments of capital. The Board has therefore decided to retain the proposed 2 percent made under the expanded general consent authority. limit in the final rule. In response to a comment seeking The proposal also provided that, in clarification that the existing determining compliance with the authorization for general consent aggregate limits and in order to avoid investments will continue to be double counting of investments, an available, the Board notes that the investment in a subsidiary shall be expanded authority is parallel authority counted only once notwithstanding that for making investments by banking such subsidiary may, within the next 12 organizations that meet the strongly months, downstream all or part of such capitalized and well managed investment to another subsidiary. standards. As is clear from section 211.5(c)(2)(i)(B) and (C) of Regulation K, Several commenters argued for a longer time period in which to make however, the limits on investment in downstream investments or that no time any one organization apply on a limit should be imposed. Tha Board cumulative basis over time and include investments made under the existing as believes the 12 month time limit should be retained as it strikes an appropriate well as the expanded authority. balance between easing regulatory Several commenters argued that expanded authority should be available burden and maintaining adequate oversight, given that the condition of a for additional investments in existing banking organization may change over subsidiaries. The Board notes that, as indicated in section 211.5(c)(2)(iv)(D) of time. Supervisory views regarding downstreaming investments also may the final rule, using the expanded change over time in light of changed authority for making additional investments in existing subsidiaries and circumstances. joint ventures is permissible under the One commenter argued that terms of the final rule, subject to the downstream investments should not be investment limits and the other subject to the individual investment investment restrictions. limits as well as the aggregate investment limits. However, the Board Aggregate Investment Limit believes that supervisory concerns The proposed rule provided for an overall aggregate investment limit on all regarding the need to monitor diversification of investments in view of investments made during the previous 12-month period under the existing and any changed circumstances relating to the investor means that the limits on the expanded authority. Under this investments in one organization should limit, all such investments, when include downstream investments. aggregated with the proposed Finally, a commenter argued that investment, may not exceed the lesser of restructurings (through the contribution 50 percent of the Edge or agreement of an investment from one affiliate to corporation’s total capital or 5 percent another) should also be encompassed of the parent member bank’s total within the same exclusion as that capital, in the case of an Edge or provided for downstream investments. agreement corporation, or 5 percent of its total capital, in the case of a member The Board notes in response to this bank or a bank holding company. A comment that Regulation K already number of commenters supported the provides general consent authority for Board’s position that the aggregate transfers among affiliates at net asset limits apply only to general consent value. Eligible Investments The proposal limited the types of investments eligible for the expanded authority, as well as the types of activities that may be conducted by the organization in which the investment is to be made. Ineligible investments included an investor’s initial entry into a foreign country, the establishment or acquisition of an initial subsidiary bank in a foreign country, investments in general partnerships or unlimited liability companies, and an acquisition of shares or assets of a corporation that is not an affiliate of the investor. Exclusion of the latter type of acquisition was intended to limit the expanded authority to investments in de novo subsidiaries (including subsequent investments in such subsidiaries) by excluding the acquisition of going concerns. Commenters requested clarification as to whether additional investments made in existing subsidiaries and joint ventures would be eligible investments under the expanded authority. The final rule authorizes investments in existing subsidiaries and joint ventures, provided they meet the remaining criteria for eligible investments and the criteria for eligible activities. Several commenters opposed the proposal’s exclusion of initial acquisitions of going concerns from the expanded investment authority. However, the Board continues to believe such exclusion is appropriate in light of the potential additional risk associated with such investments. These risks are greater than simply the amount of capital invested, extending also, for example, to the value and quality of the acquired organization’s assets. The Board therefore considers that prior notice of such an investment is appropriate. Several commenters argued that the acquisition or establishment of an initial bank subsidiary in a foreign country should be permissible without prior notice to the Board where the investor already has a branch in that country. The Board believes that such a change may be inconsistent with its responsibility as home country supervisor under the Minimum Standards for Supervision of Internationally Active Banks established by the Basle Supervisors Committee, in those cases where the Board has not previously approved or reviewed the establishment of a significant subsidiary bank in that country. The Minimum Standards contemplate that the home country supervisor should specifically authorize any outward expansion by a bank, both to inform the home country Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations 67053 (44 U.S.C. Ch. 35; 5 CFR 1320 Appendix A.l), the Board reviewed the rule under the authority delegated to the Board by the Office of Management and Budget. The collection of information requirements in this regulation are found in 12 CFR 211.5(c). The submission of this information is mandatory under sections 25 and 25A of the Federal Reserve Act (12 U.S.C. 601604(a) and 611-631) and sections 4(c)(13), 4(u)(14), and 5(c) of the Bank Holding Company Act (12 U.S.C. Post-investment Notice 1843(c)(13), 1843(c)(14) and 1844(c)) to The proposal required an investor evidence compliance with the making use of the expanded authority to requirements of Regulation K. The provide the Board with a post Federal Reserve uses the information to investment notice within 10 business monitor the international operations of days of making the investment. U.S. banking organizations, and to fulfill However, the Board requested comment its supervisory responsibilities under on whether the requirements relating to Regulation K. The respondents are the post-investment notice could be banks, bank holding companies, and incorporated into existing reporting Edge and agreement corporations. The Federal Reserve may not conduct requirements. Several commenters argued the post or sponsor, and an organization is not Processing Procedures investment notice would be required to respond to, this information unnecessary and inconsistent with the The final rule incorporates the change collection unless it displays a currently goal of reducing regulatory burden, in processing procedures indicating that valid OMB control number. The OMB particularly since investors are required the 45 day period commences upon control number is 7100-0107. No comments specifically addressing to report acquisitions of shares in receipt of the notice or application to foreign organizations on an existing the estimate burden were received. invest in a foreign company. The Federal Reserve estimates that, Federal Reserve form (F.R. 2064) by the Commenters generally supported this based on 1995 data, 10 responses per end of the month following the month change in processing procedures. year will be filed by U.S. banking in which the investment was made. Finally, one commenter noted organizations under the expanded Commenters maintained that the Board generally that Regulation K is a general consent authority. Currently, the already has sufficient information to technically difficult regulation and investments that will be permitted monitor investments in foreign expressed concern that the proposed under expanded general consent require subsidiaries through existing reporting revisions, by incorporating additional and examination authority. Based upon technical language, would have the side prior notification on the form for International Applications and Prior the comments, the Board has decided to effect of further diminishing the Notifications under Subparts A and C of eliminate the 10 business day notice readability of the regulation. The Board Regulation K (FR K—1; OMB No. 7100requirement. However, the Board has notes that the five year review of 0107). The estimated burden for each determined that certain limited Regulation K mandated by the prior notification can range from 1 to 10 additional information that is not at International Banking Act of 1978 is present provided in the FR 2064 is hours, depending on its complexity. now underway. Ways in which Under the revised rule, an investor will required to be submitted; such Regulation K may be simplified will be information may be submitted on the ho longer submit information prior to considered during the course of that same schedule as the FR 2064, namely, the investment; instead, it will submit review. by the end of the month following the limited information regarding specific Regulatory Flexibility Analysis month in which the investment was areas of potential risks of the investment made. after the investment is made. The Pursuant to section 605(b) of the The Board agrees with those volume of this information will vary Regulatory Flexibility Act (Pub. L. 96commenters who argued that additional 354, 5 U.S.C. 601 et seq.), the Board depending on the type of investment; information should be limited to cover certifies that this final rule will not have the annual burden per respondent is specific areas of potential risks estimated to be .5 hours, on average. a significant economic impact on a regarding investments made under the substantial number of small entities that Based on an hourly cost of $20, the expanded general consent authority and are subject to the regulation. annual cost to the public is estimated to accordingly has narrowed the be $100. There are no start up costs or Pursuant to 5 U.S.C. 553(d), this information that would be required to capital costs. amendment to Regulation K will be submitted following exercise of the The information collected is not become effective immediately. This expanded authority. More specifically, deemed confidential. The applying final rule grants an exemption for the information that would be required organization has the opportunity to certain U.S. banking organizations, and under the final rule is limited to: the request confidentiality for information therefore the Board waives the 30 day respective responsibilities of the parties general requirement for publication of a that it believes will qualify for a if the investment is a joint venture; one Freedom of Information Act exemption: substantive rule. Send comments regarding the burden year projections for the organization in Paperwork Reduction Act Analysis estimate, or any other aspect of this which the investment is made; and, collection of information, including where the investment is to redress a In accordance with section 3506 of suggestions for reducing the burden, to: loss, a description of the reasons for the the Paperwork Reduction Act of 1995 supervisor of the intention of the bank to operate in another country and to provide the host supervisor with the comfort that the home supervisor does not object to the expansion and takes responsibility for the supervision of the branch or subsidiary bank. Consequently, the Board believes it is appropriate to retain the prior notice requirement for establishment of an initial subsidiary bank in another country under the expanded authority. loss and the steps taken to address the problem. This would provide to the Board the minimum information necessary to monitor any additional risks posed by such investments. One commenter requested clarification as to whether or not the post-investment notice is intended to cover investments made pursuant to the existing general consent authority, which would make the proposal more restrictive than the present requirements for general consent investments. The Board notes that the post-investment notice would be required only in relation to investments made under the expanded authority. In response to another comment, the Board wishes to clarify that investments in newly established companies are not precluded by the restriction on the acquisition of shares or assets of an organization that is not an affiliate or joint venture of the investor. 67054 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Rules and Regulations Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, N.W., Washington, DC 20551; and to the Office of Management and Budget, Paperwork Reduction Project (7100-0107), Washington, DC 20503. List of Subjects in 12 CFR Part 211 Exports, Federal Reserve System, Foreign banking, Holding companies, Investments, Reporting and recordkeeping requirements. For the reasons set out in tlfe preamble, the Board of Governors amends 12 CFR Part 211 as set forth below: PART 211— INTERNATIONAL BANKING OPERATIONS (REGULATION K) 1. The authority citation for Part 211 is revised to read as follows: Authority: 12 U.S.C. 221 et seq., 1818, 1841 et seq., 3101 et seq., 3901 et seq. 2. Section 211.2 is amended by redesignating paragraphs (u) and (v) as paragraphs (v) and (w), respectively, and by adding new paragraphs (u) and (x) to read as follows: §211.2 * * D efinitions. * * * (u) Strongly capitalized means: (1) In relation to a parent member bank, that the standards set out in 12 CFR 208.33(b)(1) are satisfied; and (2) In relation to an Edge or Agreement corporation or a bank holding company, that it has a total riskbased capital ratio of 10.0 percent or greater. * * * * * (x) Well managed means that the Edge or Agreement corporation, its parent member bank, if any, and the bank holding company have each received a composite rating of 1 or 2 at its most recent examination or review and are not subject to any supervisory enforcement action. 3. Section 211.5 is amended by: a. Redesignating paragraphs (c)(2) and (c)(3) as paragraphs (c)(3) and (c)(4) respectively and by adding a new paragraph (c)(2); and b. In newly designated paragraph (c)(3), by removing the word “accepted” in the third sentence and adding in its place the word “received”. The addition reads as follows: §21 1.5 * * In v e stm e n ts a n d a ctiv ities a b ro a d . * * * * * (c) * * * * * * (2)(i) Expanded general consent for de novo investments. Notwithstanding the amount limitations of paragraph (c)(1) of this section, but subject to the other limitations of this section, the Board grants expanded general consent authority for investments in an organization by an investor that is strongly capitalized and well managed if: (A) The activities of the organization are limited to activities in which a national bank may engage directly or in which a subsidiary may engage under paragraph (d) of this section; (B) In the case of an investor that is an Edge corporation that is not engaged in banking or an Agreement corporation, the total amount invested in such organization (in one transaction or a series of transactions) does not exceed the lesser of 20 percent of the investor’s Tier 1 capital or 2 percent of the Tier 1 capital of the parent member bank; (C) In the case of a bank holding company or member bank investor, the total amount invested in such organization (in one transaction or a series of transactions) directly or indirectly does not exceed 2 percent of the investor’s Tier 1 capital; (D) All investments made, directly or indirectly, by an Edge corporation not engaged in banking or an Agreement corporation during the previous 12month period under paragraph (c)(2) of this section, when aggregated with the proposed investment, would not exceed the lesser of 50 percent of the total capital of the Edge or Agreement corporation, or 5 percent of the total capital of the parent member bank; (E) All investments made, directly or indirectly, by a member bank or a bank holding company during the previous 12-month period under paragraph (c)(2) of this section, when aggregated with the proposed investment, would not exceed 5 percent of its total capital; and (F) Both before and immediately after the proposed investment the investor, its parent member bank, if any, and any parent bank holding company are strongly capitalized and well managed. (ii) Determining aggregate investment limits. For purposes of determining compliance with the aggregate investment limits set out in paragraphs (c)(2)(i)(D) and (E) of this section, an investment by an investor in a subsidiary shall be counted only once notwithstanding that such subsidiary may, within 12 months of the date of making the investment, downstream all or any part of such investment to another subsidiary. (iii) Additional investments. An investor that makes investments under paragraph (c)(2)(i) of this section may also make additional investments in an organization under the standards set forth in paragraphs (c)(l)(ii), (c)(l)(iii) and (c)(l)(iv) of this section. (iv) Ineligible investments. The following investments are not eligible for the general consent under paragraph (c)(2)(i) of this section: (A) An investment in a foreign country where the investor does not have an affiliate or a branch; (B) The establishment or acquisition of an initial subsidiary bank in a foreign country; (C) Investments in general partnerships or unlimited liability companies; and (D) An acquisition of shares or assets of an organization that is not an affiliate or joint venture of the investor. (v) Post-investment notice. By the end of the month following the month in which the investment is made, the investor shall provide the Board with the following information relating to the investment: (A) If the investment is in a joint venture, the respective responsibilities of the parties to the joint venture; (B) Projections for the organization in which the investment is made for the first year following the investment; and (C) Where the investment is made in an organization that incurred a loss in the last year, a description of the reasons for the loss and the steps taken to address the problem. * * * * * By order of the Board of Governors of the Federal Reserve System , December 21, 1995. Jennifer J. Johnson, Deputy Secretary of the Board. [FR Doc. 95-31362 Filed 1 2-27-95; 8:45 am] BILUNG CODE 6210-01-P FEDERAL RESERVE BANK OF DALLAS P.O. BOX 655906 DALLAS, TX 75265-5906