(a) Purpose. This section establishes exceptions to the anti-tying
restrictions of section 106 of the Bank Holding Company Act Amendments
of 1970 (12 U.S.C. 1971, 1972(1)). These exceptions are in addition
to those in section 106. The section also restricts tying of electronic
benefit transfer services by bank holding companies and their nonbank
subsidiaries.
(b) Exceptions
to statute. Subject to the limitations of paragraph (c) of this
section, a bank may—
(1) Extension
to affiliates of statutory exceptions preserving traditional banking
relationships. Extend credit, lease or sell property of any kind,
or furnish any service, or fix or vary the consideration for any of
the foregoing, on the condition or requirement that a customer—
(i) obtain a loan, discount, deposit, or trust service from an affiliate
of the bank; or
(ii)
provide to an affiliate of the bank some additional credit, property,
or service that the bank could require to be provided to itself pursuant
to section 106(b)(1)(C) of the Bank Holding Company Act Amendments
of 1970 (12 U.S.C. 1972(1)(C)).
(2) Safe harbor
for combined-balance discounts. Vary the consideration for any
product or package of products based on a customer’s maintaining a
combined minimum balance in certain products specified by the bank
(eligible products), if—
(i) the bank offers deposits, and all
such deposits are eligible products; and
(ii) balances in deposits count at least
as much as nondeposit products toward the minimum balance.
(3) Safe harbor for foreign transactions. Engage in any transaction
with a customer if that customer is—
(i) a corporation, business,
or other person (other than an individual) that—
(A) is incorporated,
chartered, or otherwise organized outside the United States; and
(B) has its principal place
of business outside the United States; or
(ii) an individual who is
a citizen of a foreign country and is not resident in the United States.
4-017.2
(c) Limitations
on exceptions. Any exception granted pursuant to this section
shall terminate upon a finding by the Board that the arrangement is
resulting in anticompetitive practices. The eligibility of a bank
to operate under any exception granted pursuant to this section shall
terminate upon a finding by the Board that its exercise of this authority
is resulting in anticompetitive practices.
(d) Extension of statute to electronic benefit transfer
services. A bank holding company or nonbank subsidiary of a bank
holding company that provides electronic benefit transfer services
shall be subject to the anti-tying restrictions applicable to such
services set forth in section 7(i)(11) of the Food Stamp Act of 1977 (7 U.S.C.
2016(i)(11)).
(e) For purposes
of this section, “bank” has the meaning given that term in section
106(a) of the Bank Holding Company Act Amendments of 1970 (12 U.S.C.
1971), but shall also include a United States branch, agency, or commercial
lending company subsidiary of a foreign bank that is subject to section
106 pursuant to section 8(d) of the International Banking Act of 1978
(12 U.S.C. 3106(d)), and any company made subject to section 106 by
section 4(f)(9) or 4(h) of the BHC Act.
