(a) Scope. A state branch or state agency shall file with the Board
a prior written application for permission to engage in or continue
to engage in any type of activity that—
(1) is not permissible for a federal branch,
pursuant to statute, regulation, official bulletin or circular, or
order or interpretation issued in writing by the Comptroller; or
(2) is rendered impermissible
due to a subsequent change in statute, regulation, official bulletin or
circular, written order or interpretation, or decision of a court
of competent jurisdiction.
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(b) Exceptions. No application shall be required
by a state branch or state agency to conduct any activity that is
otherwise permissible under applicable state and federal law or regulation
and that—s
(1) has been determined
by the FDIC, pursuant to 12 CFR 362.4(c)(3)(i)-(3)(ii)(A), not to
present a significant risk to the affected deposit insurance fund;
(2) is permissible for
a federal branch, but the Comptroller imposes a quantitative limitation
on the conduct of such activity by the federal branch;
(3) is conducted as agent
rather than as principal, provided that the activity is one that could
be conducted by a state-chartered bank headquartered in the same state
in which the branch or agency is licensed; or
(4) any other activity that the Board has
determined may be conducted by any state branch or state agency of
a foreign bank without further application to the Board.
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(c) Contents of application. An application submitted pursuant to paragraph (a) of this section
shall be in letter form and shall contain the following information:
(1) a brief description of
the activity, including the manner in which it will be conducted,
and an estimate of the expected dollar volume associated with the
activity;
(2) an analysis
of the impact of the proposed activity on the condition of the U.S.
operations of the foreign bank in general, and of the branch or agency
in particular, including a copy, if available, of any feasibility
study, management plan, financial projections, business plan, or similar
document concerning the conduct of the activity;
(3) a resolution by the applicant’s board
of directors or, if a resolution is not required pursuant to the applicant’s
organizational documents, evidence of approval by senior management,
authorizing the conduct of such activity and the filing of this application;
(4) if the activity is
to be conducted by a state branch insured by the FDIC, statements
by the applicant—
(i) of whether or not it is in compliance
with 12 CFR 346.19 (Pledge of Assets) and 346.20 (Asset Maintenance);
(ii) that it has complied
with all requirements of the FDIC concerning an application to conduct
the activity and the status of the application, including a copy of
the FDIC’s disposition of such application, if available; and
(iii) explaining why the
activity will pose no significant risk to the deposit insurance fund;
and
(5)
any other information that the Reserve Bank deems appropriate.
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(d) Factors considered
in determination.
(1) The Board shall consider the following
factors in determining whether a proposed activity is consistent with
sound banking practice:
(i) the types of risks, if any, the
activity poses to the U.S. operations of the foreign banking organization
in general, and the branch or agency in particular;
(ii) if the activity poses any such
risks, the magnitude of each risk; and
(iii) if a risk is not de minimis, the
actual or proposed procedures to control and minimize the risk.
(2) Each of the factors set forth in paragraph (d)(1) of this section
shall be evaluated in light of the financial condition of the foreign
bank in general and the branch or agency in particular and the volume
of the activity.
(e) Application procedures. Applications pursuant
to this section shall be filed with the appropriate Federal Reserve
Bank. An application shall not be deemed complete until it contains
all the information requested by the Reserve Bank and has been accepted.
Approval of such an application may be conditioned on the applicant’s
agreement to conduct the activity subject to specific conditions
or limitations.
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(f) Divestiture or cessation.
(1) If an application for
permission to continue to conduct an activity is not approved by the
Board or, if applicable, the FDIC, the applicant shall submit a detailed
written plan of divestiture or cessation of the activity to the appropriate
Federal Reserve Bank within 60 days of the disapproval.
(i) The
divestiture or cessation plan shall describe in detail the manner
in which the applicant will divest itself of or cease the activity,
and shall include a projected timetable describing how long the divestiture
or cessation is expected to take.
(ii) Divestitures or cessation shall
be complete within one year from the date of the disapproval, or within
such shorter period of time as the Board shall direct.
(2) If a foreign bank operating
a state branch or state agency chooses not to apply to the Board for
permission to continue to conduct an activity that is not permissible
for a federal branch, or which is rendered impermissible due to a
subsequent change in statute, regulation, official bulletin or circular,
written order or interpretation, or decision of a court of competent
jurisdiction, the foreign bank shall submit a written plan of divestiture
or cessation, in conformance with paragraph (f)(1) of this section
within 60 days of the effective date of this part or of such change
or decision.
