Receiverships for Uninsured National Banks, 62835-62845 [2016-21846]

Download as PDF 62835 Proposed Rules Federal Register Vol. 81, No. 177 Tuesday, September 13, 2016 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. DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 51 [Docket ID OCC–2016–0017] RIN 1557–AE07 Receiverships for Uninsured National Banks Office of the Comptroller of the Currency, Treasury. ACTION: Notice of proposed rulemaking; request for public comment. AGENCY: The Office of the Comptroller of the Currency (OCC) is proposing a rule addressing the conduct of receiverships for national banks that are not insured by the Federal Deposit Insurance Corporation (FDIC) (uninsured banks) and for which the FDIC would not be appointed as receiver. The proposed rule would implement the provisions of the National Bank Act (NBA) that provide the legal framework for receiverships of such institutions. DATES: Comments must be received no later than November 14, 2016. ADDRESSES: Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments through the Federal eRulemaking Portal or email, if possible. Please use the title ‘‘Receiverships for Uninsured National Banks’’ 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 www.regulations.gov. Enter ‘‘Docket ID OCC–2016–0017’’ in the Search box and click ‘‘Search.’’ Click on ‘‘Comment Now’’ to submit public comments. • Click on the ‘‘Help’’ tab on the Regulations.gov home page to get information on using Regulations.gov, including instructions for submitting public comments. Lhorne on DSK30JT082PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 • Email: regs.comments@ occ.treas.gov. • Mail: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E–218, mail stop 9W– 11, Washington, DC 20219. • Hand Delivery/Courier: 400 7th Street SW., Suite 3E–218, mail stop 9W– 11, Washington, DC 20219. • Fax: (571) 465–4326. Instructions: You must include ‘‘OCC’’ as the agency name and ‘‘Docket ID OCC–2016–0017’’ in your comment. In general, the OCC will enter all comments received into the docket and publish them on the Regulations.gov Web site without change, including any business or personal information that you provide 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: Go to www.regulations.gov. Enter ‘‘Docket ID OCC–2016–0017’’ in the Search box and click ‘‘Search.’’ Click on ‘‘Open Docket Folder’’ on the right side of the screen and then ‘‘Comments.’’ Comments can be filtered by clicking on ‘‘View All’’ 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. Supporting materials may be viewed by clicking on ‘‘Open Docket Folder’’ and then clicking on ‘‘Supporting Documents.’’ 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 and photocopy comments at the OCC, 400 7th Street SW., Washington, DC. 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 hard of hearing, TTY, (202) 649– 5597. Upon arrival, visitors will be PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 required to present valid governmentissued photo identification and submit to security screening in order to inspect and photocopy comments. FOR FURTHER INFORMATION CONTACT: Mitchell Plave, Special Counsel, Legislative and Regulatory Activities Division, (202) 649–5490, or Richard Cleva, Senior Counsel, Bank Activities and Structure Division, (202) 649–5500, or for persons who are deaf or hard of hearing, TTY, (202) 649–5597, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219. SUPPLEMENTARY INFORMATION: I. Introduction The proposed rule addresses how the OCC would conduct the receivership of an uninsured national bank.1 The proposed rule would implement the provisions of the NBA that provide the legal framework for receiverships for such institutions, 12 U.S.C. 191–200.2 There are only a small number of uninsured national banks in operation today. The OCC, however, retains the authority to grant new charters to entities whose business plan does not call for them to obtain deposit insurance if the OCC determines that the entities have a reasonable chance of succeeding and can operate in a safe and sound manner, among other considerations. Although the OCC has not placed an uninsured national bank into receivership since the Great Depression, there are several reasons to consider articulating a framework for such receiverships now. First, since the financial crisis of 2007–2008, regulators have undertaken, on both a domestic and coordinated global basis, to evaluate, discuss, and maintain preparedness for effective governmental responses to critical financial distress. This focus highlights the need to consider an appropriate resolution framework for entities, such as uninsured national banks, that currently lack such a framework. Second, the establishment of a framework for 1 Unlike national trust banks, all Federal savings associations (FSAs), including FSA trust banks, are required to be insured. For this reason, this proposed rule would not apply to FSAs, given that receiverships for FSAs would be conducted by the FDIC. 2 The proposed rule establishes the basic receivership framework, which may be supplemented over time with more detailed guidance, for example, concerning the details of the receiver’s administration of the receivership estate. E:\FR\FM\13SEP1.SGM 13SEP1 62836 Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules receivership for these uninsured institutions would provide clarity to market participants about how they will be treated in receivership. The proposed rule would set forth a framework the OCC can use should an uninsured institution weaken and fail, be it an uninsured trust bank or another uninsured special purpose bank. II. Background Lhorne on DSK30JT082PROD with PROPOSALS Statutory Authority for Receiverships From the beginning of the national banking system in 1863 until the creation of the FDIC in 1933, receiverships of national banks were conducted by the Comptroller and by a receiver who was appointed by, and worked under the direction of, the Comptroller.3 The Comptroller and receiver had the powers and responsibilities set out in the receivership provisions of the NBA and exercised the powers available at common law for receivers.4 During this time, a substantial body of case law developed applying the statutory provisions and common law principles to national bank receiverships. In 1933, the FDIC was established and, among its other responsibilities, was designated as the receiver for national banks.5 As receiver, the FDIC has both the powers available to national bank receivers under the NBA and additional powers provided to the FDIC in the Federal Deposit Insurance Act (FDIA). When the FDIC serves as receiver, it does not operate under the direction of the Comptroller, unlike the pre-1933 non-FDIC receivers.6 From 1933 through 1989, the FDIC was designated to be appointed receiver for national banks generally, both insured and uninsured.7 The receivership regime for national banks was significantly changed again when Congress adopted the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA). Among many other consequences, the amendments to the FDIA in FIRREA resulted in the FDIC being specified as 3 See Earle v. Penn, 178 U.S. 449 (1900); Cook County Nat’l Bank v. United States, 107 U.S. 445 (1883). 4 See 12 U.S.C. 191–200. 5 See Banking Act of 1933, 73d Cong., 1st Sess., ch. 89, section 12B(1), 48 Stat. 172 (1933). 6 See 12 U.S.C. 1821(c)(2)(C). 7 For example, before its amendment in 1989, section 11(c) of the FDIA, 12 U.S.C. 1821(c) stated that, whenever the Comptroller appointed a receiver for any insured or uninsured national bank or Federal branch, the Comptroller ‘‘shall appoint’’ the FDIC receiver for such closed bank. 12 U.S.C. 1821(c) (1988). Federal branches were added to section 1821(c) in 1978 when Federal branches were created in the International Banking Act, 12 U.S.C. 3101 et seq. VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 the mandatory receiver only for insured depository institutions. Thus, today the FDIC is the required receiver only for an insured national (or state) bank.8 Congress also subsequently amended the receivership appointment provisions of the NBA, 12 U.S.C. 191, to provide that the Comptroller may appoint a receiver for any national bank and that, if the bank is an insured bank, the receiver must be the FDIC.9 PostFIRREA and post-FDICIA, the FDIA no longer expressly addresses receiverships of uninsured national banks, and there are no statutory limits on the Comptroller’s discretion with respect to whom to appoint as receiver of an uninsured bank. Based on this statutory history, it appears that today, unlike in the period between 1933 and 1989, the FDIA would not apply to a receivership of an uninsured bank conducted by the OCC, and that such a receivership would be governed exclusively by the NBA provisions, the common law of receivers, and cases applying the statutes and common law to national bank receiverships.10 FIRREA and FDICIA greatly expanded the FDIC’s powers in resolving failed insured depository institutions. The OCC believes that those additional powers are not available to the OCC as receiver of uninsured banks under the NBA. Uninsured Banks Supervised by the OCC As of May 2016, the OCC supervises 52 uninsured banks. Currently, all of 8 Section 11(c)(2)(A)(ii) of the FDIA provides that the FDIC ‘‘shall’’ be appointed receiver, and ‘‘shall’’ accept such appointment, whenever a receiver is appointed for the purpose of liquidation or winding up the affairs of an insured Federal depository institution by the appropriate Federal banking agency, notwithstanding any other provision of Federal law. 12 U.S.C. 1821(c)(2)(A)(ii). The term ‘‘Federal depository institution’’ includes national banks. 12 U.S.C. 1813(c)(4). 9 In 1991, in the Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA), Congress amended 12 U.S.C. 191 to provide that the Comptroller may appoint the FDIC ‘‘as receiver for any national banking association.’’ Public Law 102– 242, section 133, 105 Stat. 2236, 2271. FDICIA also amended section 191 to set out the current grounds for receivership. Prior to the amendment, section 191 provided that the Comptroller may appoint a receiver for one of three grounds previously set out in the statute. In October 1992, before the amendment went into effect, Congress revised the language to provide that the receiver shall be the FDIC ‘‘if the national bank is an insured bank.’’ Act of October 28, 1992, Public Law 102–550, Title XVI, Subtitle A, section 1609, 106 Stat. 4090 (1992). 10 While the receivership operations will be governed by the NBA provisions, the common law of receivers, and cases applying the statutes and common law to national bank receiverships, the grounds for appointment of a receiver in the NBA for a national bank, including an uninsured bank, incorporate by reference the grounds for appointment in the FDIA. See 12 U.S.C. 191(a)(1) (referring to 12 U.S.C. 1821(c)(5)). PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 these institutions are trust banks. The OCC may charter national banks whose operations are limited to those of a trust company and related activities (national trust bank).11 The activities of national trust banks are similar to those of trust departments of full-service banks. But unlike a trust department, they are not part of a larger bank that also engages in commercial banking. All but a handful of the national trust banks do not engage in the business of receiving deposits and instead hold trust funds, which are offbalance sheet assets that are not considered to be deposits and are not insured by the FDIC. National trust banks typically have few assets on the balance sheet, usually composed of cash on deposit with an insured depository institution, investment securities, premises and equipment, and intangible assets. These banks exercise fiduciary and custody powers, do not make loans, do not rely on deposit funding, and consequently have simple liquidity management programs. In view of these differences, the OCC typically requires these banks to hold capital in a specific minimum amount; as a result they hold capital in amounts that substantially exceed the ‘‘well capitalized’’ standard that pertains when national banks calculate their capital pursuant to the OCC’s rules in 12 CFR part 3. The business model of national trust banks is to generate income in the form of fees by offering fiduciary and custodial services that generally fall into one or more of a few broad categories. Some of these national trust banks focus on institutional asset management, providing trust and custodial services for investment portfolios of pension plans, foundations and endowments, and other entities, often with an investment management component. These firms often also offer private wealth management and individual retirement savings services. These services provided by national trust banks are similar to those provided by other non-bank investment management firms. A few other national trust banks serve primarily as a fiduciary and custodian to facilitate the establishment of Individual Retirement Accounts by customers of an affiliated mutual fund complex or broker-dealer firm. While it is not common, a few national trust banks have been established for a special purpose within a larger financial company to accomplish a transition or 11 See, e.g., 12 U.S.C. 27(a); 12 CFR 5.20(l). The OCC also charters Federal savings associations. Unlike national trust banks, all Federal savings associations are required to be insured. E:\FR\FM\13SEP1.SGM 13SEP1 Lhorne on DSK30JT082PROD with PROPOSALS Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules other specific purpose over a limited time period, such as facilitating a consolidation. Some national trust banks provide custodial services. One example of this type of service is corporate trust accounts, under which the bank performs services for others in connection with their issuance, transfer, and registration of debt or equity securities. Other custody accounts may be a holding facility for customer securities, where the bank assists institutional customers with global settlement and safekeeping of the customer’s securities. Many of the uninsured national trust banks are subsidiaries or affiliates of a full-service insured national bank. Another group are affiliates of an insured state bank. In these cases where the national trust bank is part of a bank holding company, the bank and the company have decided for a variety of business reasons to offer some fiduciary services to their customers in a separate national trust bank charter. National trust banks affiliated with other banks can vary greatly in complexity, in the type of fiduciary or custody businesses they engage in, and in the amount of assets under management or administration. Typically they maintain a few thousand accounts for individuals or family trusts containing assets totaling in the range of $10 billion, or in other cases maintaining as many as 10,000 corporate custody accounts totaling in the range of $20 billion. Other uninsured national trust banks are not affiliated with an insured depository institution, but are affiliated with an investment management firm or other financial services firm. These national trust banks provide fiduciary and custody services for customers of the firm. National trust banks affiliated with an investment management firm or other financial services firm also can vary greatly in complexity, in the type of fiduciary or custody businesses they engage in, and in the amount of assets under management or administration. While these national trust banks may, in exceptional cases, hold as much as $1 trillion in fiduciary and custodial assets, they more commonly hold assets in the $5–$50 billion range across a few thousand accounts. Still other national trust banks have no affiliation with a larger parent company. These independent firms typically manage a few billion dollars in fiduciary and custodial assets across a few thousand accounts, while others might be described as boutique trust firms, not affiliated with a larger parent company, with a few employees, fewer VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 than 500 customers, and $1 billion or less in fiduciary assets. The OCC has not appointed a receiver for an uninsured bank since shortly after the Congress established the FDIC in response to the banking panics of 1930– 1933. Because of the fundamentally different business model of national trust banks, compared to commercial and consumer banks and savings associations noted above, national trust banks face very different types of risks. National trust banks primarily face operational, compliance, strategic, and reputational risks without the credit and liquidity risks that additionally impact the solvency of commercial and consumer banks. While any of these risks can result in the precipitous failure of a bank or savings association, from a historical perspective, trust banks have been more likely to decline into a weakened condition, allowing the OCC and the institution the time needed to find other solutions for rehabilitating the institution or to successfully resolve the institution without the need to appoint a receiver.12 The OCC believes it would nevertheless be beneficial to financial market participants and the broader community of regulators for the OCC to clarify the receivership framework for uninsured banks. Although the OCC conducted 2,762 receiverships pursuant to this framework in the years prior to the creation of the FDIC,13 and the associated legal issues are the subject of a robust body of published judicial precedents, the details have not been widely articulated in recent jurisprudence or legal commentary. This proposal may also facilitate synergies with the ongoing efforts of U.S. and international financial regulators since the financial crisis to enhance our readiness to respond effectively to the different critical financial distresses that could manifest themselves unexpectedly in the diverse types of financial firms presently operating in the market. Other Types of Uninsured National Banks The OCC has the authority to charter and supervise special purpose banks with operations limited solely to 12 In some instances, uninsured trust banks enter into safeguard agreements with the OCC to facilitate early resolution through a sale, merger or liquidation, thereby avoiding the need for a receivership. These safeguard agreements are entered into as part of the licensing process and concern operations, capital, and liquidity. 13 Annual Report of the Comptroller of the Currency for the Year Ended October 31, 1934 at 33 (discussing the status of active and closed receiverships under the jurisdiction of the Comptroller between 1865 and 1934). PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 62837 providing fiduciary services.14 In addition to national trust banks, the OCC also may charter other special purpose banks with business models that are within the business of banking. The OCC’s rules provide that a special purpose bank must conduct at least one of the three core banking functions, namely receiving deposits, paying checks, or lending money.15 As part of the agency’s initiative on responsible innovation in the Federal banking system, the OCC is considering how best to implement a regulatory framework that is receptive to responsible innovation, such as advances in financial technology.16 In conjunction with this effort, the OCC is considering whether a special purpose charter could be an appropriate entity for the delivery of banking services in new ways. For this reason, the OCC requests comment on the utility of the receivership structure in the proposed rule for receivership of such a special purpose bank. Question 1. Would application of the NBA’s legal framework for receiverships of uninsured banks to such innovative special purpose banks raise any unique considerations? Uninsured Federal Branches and Agencies In addition to conducting receiverships for uninsured national banks, the OCC has statutory authority to appoint and oversee a receiver for uninsured Federal branches and agencies (uninsured Federal branches).17 While there are some powers and functions that overlap in conducting receiverships for uninsured banks and Federal branches, there are differences that make receiverships for Federal branches more complex. The International Banking Act of 1978 18 (IBA) sets forth the legal framework for the establishment and operation of federally licensed branches and agencies of foreign banks. Under the IBA, a receiver appointed by the Comptroller for an uninsured Federal branch would exercise the same rights, privileges, powers, and authority in conducting the receivership as it would in conducting a receivership for an uninsured bank.19 As such, with some 14 12 U.S.C. 27(a); 12 CFR 5.20(e)(1), 5.20(l). CFR 5.20(e)(1). 16 See OCC, Supporting Responsible Innovation in the Federal Banking System: An OCC Perspective at 2 (March 2016) available at https:// www.occ.treas.gov/publications/publications-bytype/other-publications-reports/pub-responsibleinnovation-banking-system-occ-perspective.pdf. 17 12 U.S.C. 3102(j). 18 12 U.S.C. 3101 et seq. 19 12 U.S.C. 3102(j). 15 12 E:\FR\FM\13SEP1.SGM 13SEP1 62838 Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules exceptions, the provisions in the NBA for receiverships would generally apply to receiverships for Federal branches.20 However, the nature of an uninsured Federal branch’s more typical commercial banking type of business model, the overlay of other Federal laws including provisions on receiverships in the IBA, and concerns being deliberated currently on a global basis among financial regulators about the resolution of global systemically important banks make the subject of uninsured Federal branch resolutions a more complicated topic. For this reason, the scope of this proposed rule does not extend to receiverships for uninsured Federal branches. The OCC will continue reviewing the regulatory and legal issues relating to receiverships for Federal branches and will confer with other regulators on these issues. The OCC may seek public input on this subject as part of our deliberations on the topic in the future. Lhorne on DSK30JT082PROD with PROPOSALS Cost Implications of OCC Receivership Function The OCC’s establishment of a receivership framework may also raise cost implications for the OCC. In addition to the OCC’s costs incidental to the selection and supervision of a receiver, and approval of claims against the receivership for a share of the receiver’s liquidating dividends, the receiver for an uninsured national bank will, as a matter of necessity, incur administrative costs in performing liquidation functions. As discussed below, the NBA provides that the receiver’s administrative expenses are to be paid first out of the assets of the receivership, but there may be circumstances where the receiver’s administrative expenses exceed those resources. The OCC is considering how it might cover these types of costs. One approach would be to build resources to defray these costs into our structure for collection of assessments from the uninsured institutions we supervise, in accordance with 12 CFR part 8. Any change to the OCC’s assessments would be set forth in a separate notice of proposed rulemaking. Question 2. The OCC requests comment on alternatives that might be implemented to take account of these cost considerations. 20 This approach is consistent with the ‘‘national treatment’’ requirement in the IBA, 12 U.S.C. 3102(b). VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 III. Proposed Rule and Request for Comment Overview The proposed rule, as described below, incorporates the framework set forth in the NBA for the Comptroller to appoint a receiver for an uninsured bank, generally under the same grounds for appointment of the FDIC as receiver for insured national banks. The uninsured bank may challenge the appointment in court, and the NBA affords jurisdiction to the appropriate United States district court for this purpose. The OCC will provide the public with notice of the appointment, as well as instructions for submitting claims against the uninsured bank in receivership. The OCC may appoint any person as receiver, including the OCC or another government agency. The receiver carries out its duties under the direction of the Comptroller. Under the NBA, the OCC functions in two capacities. Its primary capacity is that of a regulatory agency, in which the OCC oversees national banks, Federal savings associations, and Federal branches and Federal agencies, supervising them under the charge of assuring the safety and soundness of, and compliance with laws and regulations, fair access to financial services, and fair treatment of customers by, the institutions and other persons subject to its jurisdiction.21 The OCC is also directed by the NBA to act in a receivership capacity, under which the OCC appoints and oversees receivers for uninsured banks, thereby facilitating the winding down of bank operations, assets, and accounts while minimizing disruptions to customers and creditors of the institution. These capacities are separate in a way that parallels the separate capacities of the FDIC which, in its corporate capacity, serves as the insurer of depository institutions and oversees state non-member banks, and, in its receivership capacity, oversees the winding down of failed insured depository institutions. These two capacities are distinct both functionally and legally and reflect different public policy roles. A separate legal status attaches to each capacity.22 A receiver 21 12 U.S.C. 1. O’Melveny & Meyers v. FDIC, 512 U.S. 79, 85 (1994) (finding that FDIC-Receiver ‘‘steps into the shoes’’ of the failed institution and is ‘‘not the United States’’). The O’Melveny & Meyers case concerns a choice of law question in a professional malpractice suit brought against the former counsel for the savings and loan. The Court concluded that the FDIC as receiver asserts the rights of the failed bank in receivership, not of ‘‘FDIC-Corporate,’’ and therefore state law, not Federal common law, applies. See also Bullion Services v. Valley State Bank, 50 F.3d 705, 708–709 (9th Cir. 1995) (noting 22 See PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 acting under either the NBA in the case of the OCC or the FDIA in the case of the FDIC ‘‘step[s] into the shoes of’’ the failed institution.23 Under the ‘‘separate capacities’’ doctrine, which has long been recognized in litigation involving the FDIC, it is well established that the agency, when acting in one capacity, is not liable for claims against the agency acting in its other capacity.24 As a corollary to this doctrine, the assets the agency oversees in the receivership are limited to the funds making up the failed bank’s estate. For these reasons, payment of claims or judgments concerning the receivership are made from the receivership estate, not from the agency’s operating budget and funds. The proposed rule reflects this wellestablished understanding of the functional and legal distinctions between the corporate and receiver capacities. The proposed rule follows the statutory framework under the NBA, under which persons with claims against an uninsured bank in receivership would file their claims with the receiver for the failed uninsured bank, for review by the OCC. In the event the OCC denies the claim, the only remedy available to the claimant is to bring a judicial action against the uninsured bank’s receivership estate and assert the claim de novo. A person is also free to initiate its claim by bringing an action against that, under Federal law, the FDIC is empowered to operate to act in two entirely separate and distinct capacities) (citations omitted); FDIC v. Fonesca, 795 F.2d 1102, 1109 (1st Cir. 1986) (stating that ‘‘ ‘Corporate’ FDIC and ‘Receiver’ FDIC are separate and distinct legal entities’’); Jones v. FDIC, 748 F.2d 1400, 1402 (10th Cir. 1984) (same). 23 See supra, note 22. 24 See Dababneh v. FDIC, 971 F.2d 428, 432 (10th Cir. 1992) (‘‘[b]ecause they are discrete legal entities, Corporate FDIC is not liable’’ for obligations and liabilities of the FDIC as receiver) (citations omitted); accord FDIC v. Nichols, 885 F. 2d 633, 636 (9th Cir. 1989) (recognizing the corporate-receiver distinction in a case involving the purchase of receivership assets by FDIC in its corporate capacity); FDIC v. Fonseca, 795 F.2d 1102, 1109 (1st Cir. 1986) (refusing to address claims asserted against FDIC in its corporate capacity that were based on actions taken by the FDIC as receiver); Mill Creek Group, Inc. v. FDIC, 136 F. Supp. 2d 36, 48 (D. Conn. 2001) (finding that FDIC in its corporate capacity could not be held liable for breach of a contract entered into by FDIC in its receiver capacity). The same reasoning has been applied to cases involving the former Resolution Trust Corporation. See, e.g., U.S. v. Schroeder, 86 F.3d 114, 117 (8th Cir. 1996) (stating that it is ‘‘well established that the RTC, when acting in one capacity, is not liable for claims against the RTC acting in one of its other capacities’’); see also Howerton v. Designer Homes by Georges, Inc., 950 F.2d 281, 283 (5th Cir. 1992) (‘‘The RTC, in its corporate capacity, is not liable for claims against the RTC in its capacity as conservator or receiver.’’) E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules the receivership estate in court for adjudication, and then submit the judgment to the OCC to participate in ratable dividends of liquidation proceeds along with other approved and adjudicated claims.25 Approved or adjudicated claims are paid solely out of the assets of the uninsured bank in receivership. As described in the proposed rule, the receiver liquidates the assets of the uninsured bank, with court approval, and pays the proceeds into an account as directed by the OCC. The categories of claims and the priority thereof for payment are set out in the proposed rule. The proposed rule also clarifies certain powers held by the receiver, and describes the receiver’s duties in winding up the affairs of the uninsured bank. Lhorne on DSK30JT082PROD with PROPOSALS Section-by-Section Analysis Proposed § 51.1 identifies the purpose and scope of the proposed rule and clarifies that the proposal would apply to receiverships conducted by the OCC under the NBA for national banks that are not insured by the FDIC. The proposed rule does not extend to receiverships for uninsured Federal branches, although elements of the framework may be similar for uninsured Federal branch receiverships, which would also be resolved under provisions of the NBA. Proposed § 51.2 is based on 12 U.S.C. 191 and 192 and concerns appointment of a receiver. The proposed rule sets out the Comptroller’s authority to appoint any person, including the OCC or another government agency, as receiver for an uninsured bank and provides that the receiver performs its duties subject to the approval and direction of the Comptroller.26 If the Comptroller were to appoint the OCC as receiver, the OCC would act in a receivership capacity with respect to the uninsured bank in receivership, rather than in the OCC’s supervisory capacity. As discussed above, this dual capacity (OCC as supervisor versus OCC as receivership sponsor for an uninsured bank) recognizes that, while the NBA makes the receivership oversight and claims review functions of the 25 See First Nat’l Bank of Bethel v. Nat’l Pahquioque Bank, 81 U.S. 383, 401 (1871). 26 But see 12 U.S.C. 1821(c)(6) (Comptroller may appoint the FDIC as conservator or receiver and the FDIC has discretion to accept such appointment); id. at § 1821(c)(2)(C) (FDIC ‘‘not subject to any other agency’’ when acting as conservator or receiver’’). Read together, these provisions likely mean that the provision in § 51.2 concerning oversight of the receiver by the Comptroller would not apply to the FDIC acting as conservator or receiver for an uninsured institution, should the Comptroller appoint the FDIC and the FDIC accept such an appointment. VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 Comptroller part of the OCC’s responsibilities, the receivership oversight role is unique and distinct from the OCC’s role as a Federal regulatory agency and supervisor of national banks and Federal savings associations. This is comparable to the dual capacity of the FDIC’s receivership function for insured depository institutions pursuant to the FDIA. Proposed § 51.2 also provides that the Comptroller may require the receiver to post a bond or other security and the receiver may hire staff and professional advisors, with the approval of the Comptroller, if needed to carry out the receivership. This section also identifies the grounds for appointment of a receiver for an uninsured bank and notes that uninsured banks may seek judicial review of the appointment, pursuant to 12 U.S.C. 191. Proposed § 51.3 provides that the OCC would provide notice to the public of the appointment of a receiver for the uninsured bank. The proposed rule specifies that one component of this notice will include publication in a newspaper of general circulation selected by the OCC for three consecutive months, as required by 12 U.S.C. 193. As a component of the OCC’s notice to the public about the receivership, the OCC would also provide instructions for creditors and other claimants seeking to submit claims with the receiver for the uninsured bank. The OCC believes that the purpose of section 193 may be better served by publication through means other than publication in a newspaper. For example, the OCC could provide direct notice to customers and creditors of the uninsured bank, to the extent the uninsured bank’s records included current contact information. The OCC could also arrange to provide notice through electronic channels that customers would typically use to contact the uninsured bank, such as the uninsured bank’s Web site. The OCC believes that an effective set of notice protocols would best be established on a case-by-case basis, in light of a specific uninsured bank’s fiduciary and custodial activities, the types of customers served by the bank, coordination with other notice protocols under way for any related entity that is also undergoing resolution activity, and similar factors. Question 3. The OCC invites comment on the appropriate types of, and channels for, notices of receiverships, as well as how frequently to provide these notices. Commenters are also invited to address whether customized notice should be provided in addition to the PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 62839 requirement for newspaper publication, which would apply in every case. Proposed § 51.4 addresses the submission of claims to the receiver for an uninsured bank. Under proposed § 51.4(a), a person with a claim against the receivership may submit a claim to the OCC, which would consider the claim and make a determination concerning its validity and approved amount. This process reflects the provisions in 12 U.S.C. 193 and 194 regarding presentation of claims and payment of dividends on claims that are proved to the satisfaction of the Comptroller. Proposed § 51.4 also provides that the Comptroller would establish a deadline for filing claims with the receiver, which could not be earlier than 30 days after the threemonth publication of notice required by proposed § 51.3. This provision reflects NBA case law that permitted the Comptroller to establish a date for filing claims against the receiver for a failed bank, before this responsibility shifted to the FDIC.27 Proposed § 51.4(b) clarifies that persons with claims against an uninsured bank in receivership may present their claims to a court of competent jurisdiction for adjudication, in addition to, or as an alternative to, filing a claim with the OCC. If successful in court, such persons would be required to submit a copy of the final judgment to the OCC to participate in ratable dividends of liquidation proceeds along with claims against the bank in receivership submitted to, and approved by, the OCC. The proposed rule requires submission of a copy of the court’s final judgment to the OCC. This provision is based on 12 U.S.C. 193 and 194. In this regard, the receivership regime established by the NBA differs somewhat from the approach set out in other resolution regimes, such as the bankruptcy provisions of the United States Code and the receivership provisions of the FDIA. Under those resolution regimes, creditors and claimants must generally submit their claims to the receivership estate for centralized administration and disposition, and claims that are not submitted by the claims deadline are barred from any participation in liquidation payments. The NBA provisions are different in that claimants are provided the opportunity to submit claims to the OCC for evaluation, but are not foreclosed from pursuing judicial resolution by filing litigation (or continuing a pre-existing 27 See Queenan v. Mays, 90 F.2d 525, 531 (10th Cir. 1937). E:\FR\FM\13SEP1.SGM 13SEP1 62840 Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules Lhorne on DSK30JT082PROD with PROPOSALS lawsuit) in a court of competent jurisdiction against the uninsured bank in receivership. The claims filing deadline established by the Comptroller pursuant to proposed § 51.4(a) is the date by which claimants seeking review under the OCC’s claims process must make their submission. Nevertheless, a claimant that has not made a submission to the OCC by the deadline is not barred from initiating judicial claims against the uninsured bank in receivership solely by virtue of missing the claims deadline.28 The NBA’s receivership provisions are like the receivership regime established by the FDIC under the FDIA, however, in that the avenue available to a party whose claim has been denied by the FDIC or OCC performing the agencies’ receivership claims functions is to file (or continue) a de novo judicial action asserting the facts and legal theory of the claim against the receivership of the bank. The NBA does not contemplate or support anything in the nature of further action by the claimant in an administrative or judicial forum against the OCC seeking review of the claim determination. The OCC believes that the proposed claims process offers many claimants advantages over other methods of claims resolution. In particular, for customers of the institution, and for holders of receivables and other contractual credit claims against the uninsured bank, the extent and validity of the claim will frequently be clear from the books and records of the bank, account statements provided to customers, and similar documents. The claims process provides an efficient way for identification, in a timely way, of the largest group of claimants who will be eligible to participate in ratable distributions of liquidation dividends, as described in proposed § 51.8. The OCC’s public notices of the receivership will provide claimants with information on how to obtain more detailed instructions for submitting claims to the OCC and on disposition of claims. If a claimant asserts that a claim incorporates a valid and enforceable 28 See First Nat’l Bank of Bethel v. Nat’l Pahquioque Bank, 81 U.S. 383, 401 (1871); Queenan, 90 F.2d at 531. As noted above, it is incumbent on a claimant that pursues the judicial route and ultimately obtains judicial relief to submit the final judicial determination and award to the OCC, in order to participate in the OCC’s periodic ratable dividends of liquidation proceeds of the receivership estate. Except with respect to a valid and enforceable security interest in specific property of the uninsured bank established as part of a final judicial determination, there are no assets or funds available to a successful judicial claimant other than the ratable dividend process set out in 12 U.S.C. 194 and described in proposed § 51.8. VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 security interest in assets of the uninsured bank, the OCC believes that it may be in that claimant’s interest to apprise the OCC of that claim through the claims process. While the NBA does not restrict the holder of a valid security interest in uninsured bank assets from enforcing that interest through applicable state law, making the OCC aware of the claim and presenting an opportunity for it to be evaluated creates an opportunity to explore whether the receivership estate might negotiate an arrangement that would provide the claimant the value of the security interest in a more efficient way. Also, if it turns out that a portion of the claim remains unsecured, the claimant will have presented their claim to the OCC, and would participate in ratable dividends if the OCC approved the claim. For these reasons, the OCC has included language in proposed § 51.4(a) referring equally to secured and unsecured claims. Proposed § 51.4(c) provides that if a person with a claim against an uninsured bank in receivership also has an obligation owed to the bank, the claim and obligation will be set off against each other and only the net balance remaining after set-off will be considered as a claim. To this end, proposed § 51.4(a) also includes language referring to claims for set-off. The right of set-off where parties have mutual obligations has long been recognized as an equitable principle.29 Well-settled case law has held that a receivership creditor’s or other claimant’s equitable right to a set-off is not precluded by the ratable distribution requirement of the NBA, provided such set-off is otherwise legally valid.30 If, after set-off, an amount is owed to the creditor, the creditor may file a claim for the net amount remaining as any other unsecured creditor. Conversely, if, after set-off, an amount is owed to the bank, the creditor does not have a claim and the net amount remaining is an asset of the uninsured bank, which the receiver may obtain in connection with marshalling the assets (as further described in proposed § 51.7(a)). Question 4. The OCC requests comment on whether there are additional characteristics of set-offs or other situations in which set-off may arise that should be included in the rule. 29 Scammon v. Kimball, 92 U.S. 362 (1876); Blount v. Windley, 95 U.S. 173 (1877), 177; Carr v. Hamilton, 129 U.S. 252 (1889). 30 See Scott v. Armstrong, 146 U.S. 499, 510 (1892); InterFirst Bank of Abilene, N.A. v. FDIC, 777 F.2d 1092, 1095–1096 (5th Cir. 1985); FDIC v. Mademoiselle of California, 379 F.2d 660, 663 (9th Cir. 1967). PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 Proposed § 51.5 sets out the order of priorities for payment of administrative expenses of the receiver and claims against the uninsured bank in receivership. Under this section, the OCC would pay these expenses and claims in the following order: (1) Administrative expenses of the receiver; (2) unsecured creditors, including secured creditors to the extent their claim exceeds their valid and enforceable security interest; (3) creditors of the uninsured bank, if any, whose claims are subordinated to general creditor claims; and (4) shareholders of the uninsured bank. The order is based on case law and, in the case of the first priority for administrative expenses, on 12 U.S.C. 196.31 A creditor or other claimant with a security interest that was valid and enforceable as to its terms prior to the appointment of the receiver is entitled to exercise that security interest, outside the priority of distributions set out in the proposed rule.32 If the collateral value exceeds the amount of the claim as it was immediately prior to the receiver’s appointment, the surplus remains an asset of the uninsured bank, and the receiver may obtain it in connection with marshalling the assets (as further described in proposed § 51.7(a)).33 Liens arising from judicial determinations after the initiation of the receivership, as well as contractual liens that are triggered due to the appointment of a receiver or other postappointment events, are not enforceable. This is because recognition of these liens would afford these claimants a priority that is not recognized under the established legal priorities described in proposed § 51.5. Similarly, a secured creditor is not entitled to a priority distribution of any portion of the claim that is not covered by the value of the collateral, because the creditor is in the position of an unsecured creditor for that portion of the claim, and must participate in ratable liquidation distributions on par with other unsecured creditors.34 Assets held by the uninsured bank in a fiduciary or custodial capacity, as 31 See Ticonic Nat’l Bank v. Sprague, 303 U.S. 406, 410–411 (1938); Merrill v. Nat’l Bank of Jacksonville, 173 U.S. 131, 146 (1899); Scott v. Armstrong, 146 U.S. 499, 510 (1892); Bell v. Hanover Nat’l Bank, 57 F. 821, 822 (C.C.S.D.N.Y. 1893). 32 Ticonic Nat’l Bank v. Sprague, 303 U.S. 406, 410–411 (1938); Bell v. Hanover Nat’l Bank, 57 F. 821, 822 (C.C.S.D.N.Y. 1893). 33 Bell v. Hanover Nat’l Bank, 57 F. 821, 822 (C.C.S.D.N.Y. 1893). 34 Merrill v. Nat’l Bank of Jacksonville, 173 U.S. 131, 146 (1899). E:\FR\FM\13SEP1.SGM 13SEP1 Lhorne on DSK30JT082PROD with PROPOSALS Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules identified on the bank’s books and records, are not general assets of the bank. Section 51.8(b) of the proposed rule states this, for the absence of doubt. In the same vein, the claim of the customer to fiduciary or custodial assets is separate from, and not subject to, the priority set out in proposed § 51.5. Fiduciary and custodial customers of the bank have direct claims on those assets pursuant to their fiduciary or custodial account contracts. However, the priority of a fiduciary or custodial customer’s other claims against the bank, if any, would remain subject to the priority described in proposed § 51.5. For example, a fiduciary customer’s claim for a refund of prepaid investment management fees that were attributable to periods after the receiver returned the fiduciary assets to the customer, generally would be an unsecured claim covered by proposed § 51.5(b). The claims process described in § 51.4(b) of the proposed rule is available to a fiduciary customer, for both a direct claim on fiduciary assets, as well as a receivership claim for an obligation of the bank. Question 5. The OCC requests comment on whether there are other Federal statutes regarding specific types of claims that may be applicable to a receivership of an uninsured bank under the NBA and that would give certain claims a different priority, such as claims owed to the Federal government. Proposed § 51.6 provides that all administrative expenses of the receiver for an uninsured bank will be paid out of the assets of the receivership before payment of claims against the receivership. This reflects the requirements in 12 U.S.C. 196. The proposed rule also states that receivership expenses would include pre-receivership and post-receivership obligations that the receiver determines are necessary and appropriate to facilitate the orderly liquidation or other resolution of the uninsured bank in receivership. To further illustrate the kinds of expenses that section 196 affords a first priority claim on the uninsured bank’s receivership assets, proposed § 51.6 enumerates examples of such administrative expenses, such as wages and salaries of employees, expenses for professional services, contractual rent pursuant to an existing lease or rental agreement, and payments to third-party or affiliated service providers, when the receiver determines these expenses are of benefit to the receivership. Proposed § 51.7 contains provisions describing the powers and duties of the receiver and the disposition of fiduciary VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 and custodial accounts. As described in proposed § 51.7, the receiver would take over the assets and operation of the uninsured bank, take action to realize on debts owed to the uninsured bank, sell the property of the bank, and liquidate the assets of the uninsured bank for payment of claims against the receivership. Proposed § 51.7(a)(1)–(5) lists some of the major powers and duties for the receiver set out in 12 U.S.C. 192 and clarified by the courts, including taking possession of the books and records of the bank, collecting on debts and claims owed to the bank, selling or compromising bad or doubtful debts (with court approval), and selling the bank’s real and personal property (also with court approval). Proposed § 51.7(b) provides for the receiver to close the uninsured bank’s fiduciary and custodial appointments, or transfer such accounts to a successor fiduciary or custodian under 12 CFR 9.16 or other applicable Federal law. The uninsured banks currently in existence focus on fiduciary and custodial services, so this function of the receiver would be of primary importance. This provision recognizes that the receiver’s power to wind up the affairs of the uninsured bank in receivership, acting with court approval to make disposition of bank assets, should properly encompass the power to transfer fiduciary or custodial appointments and any associated assets in appropriate circumstances. Transfer of fiduciary appointments may occur under the terms of the instrument creating the relationship, if it provides for transfer, or under a fiduciary transfer statute, if one is applicable. The OCC believes there are strong public policy interests in endeavoring to replace fiduciaries and custodians expeditiously, without an interruption in service to their customers, if transfer can be arranged to a qualified successor, maintaining the same duties and standards of care with respect to the customers that previously pertained to their accounts at the uninsured bank in receivership. The alternative, given that the uninsured bank must be wound down and cannot provide services in the future, is to stop managing and reinvesting the customer’s assets, stop responding to directions to transfer or receive assets in custody, close the accounts, and seek instructions from the account holders or the courts regarding return of associated assets. For institutional customers, this is likely to cause significant interruption of the intricate machinery of their financial operations. For individuals, it can potentially result in loss of asset PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 62841 value in adverse markets, or loss of income due to foregone reinvestments. Across the United States, there are disparate and often conflicting legal rules restricting or conditioning transfers of an appointment of a fiduciary for a beneficiary residing within the state. Depending on the geographic area across which the uninsured bank has established fiduciary relationships with its customers, and the standardization of its fiduciary account agreements or appointing instruments, it may be practicable for the receiver to transition an uninsured bank’s fiduciary and custody accounts to a qualified successor through the mechanisms provided by applicable local law. On the other hand, if faced with dispersed customers, diverse account agreements or appointments of different vintage, or even the absence of an applicable law of transfer for customers in certain states, reliance on these methods may be so cumbersome as to effectively prevent accomplishment of the transfers in a timely way. In order to address these potential problems, the OCC, relying on the support of existing case law, is including language in the proposed rule to make it clear that the uninsured bank receiver’s power under 12 U.S.C. 192 to sell, with court approval, the real and personal property of the bank includes the power to transfer the bank’s fiduciary accounts and related assets, subject to the approval of the court exercising jurisdiction over the receiver’s efforts to transfer the bank’s assets. The proposed rule is consistent with case law recognizing that a receiver for a national bank may properly arrange asset purchase and liability assumption transactions to move the business of a failed bank to a successor on an integrated basis, as part of the power to transfer assets, as well as analogous case law concerning the transfer of fiduciary and custodial assets by the FDIC, acting as receiver of failed insured depository institutions.35 Proposed § 51.7(c) incorporates, in general terms, the powers, duties, and responsibilities of receivers for national banks under the NBA and under judicial precedents determining the authorities and responsibilities of receivers for national banks. Examples of these powers include: (1) The authority to repudiate certain contracts, including: (a) Purely executory contracts, upon 35 See NCNB Texas National Bank v. Cowden, 895 F.2d 1488 (5th Cir. 1990) (holding that the FDIC, as receiver of insolvent bank, had authority to transfer fiduciary appointments to bridge bank prior to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989). E:\FR\FM\13SEP1.SGM 13SEP1 62842 Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules Lhorne on DSK30JT082PROD with PROPOSALS determining that the contracts would be unduly burdensome or unprofitable for the receivership estate,36 (b) contracts that involve fraud or misrepresentation,37 and (c) in limited cases, non-executory contracts that are contrary to public policy; 38 (2) the authority to recover fraudulent transfers; 39 and (3) the authority to enforce collection of notes from debtors and collateral, regardless of the existence of side arrangements that would otherwise defeat the collectability of such notes.40 Proposed § 51.7(d) requires the receiver to make periodic reports to the OCC concerning the status and proceedings of the receivership. Proposed § 51.8 contains provisions regarding the payment of dividends on claims against the uninsured bank and the distribution of any remaining proceeds to shareholders. This section provides that, after administrative expenses of the receivership have been paid, the OCC would make ratable dividends from available receivership funds based on the priority of claims in proposed § 51.5, for claims that have been proved to the OCC’s satisfaction or adjudicated in a court of competent jurisdiction, as provided in 12 U.S.C. 194. The OCC would make payment of dividends, if any, periodically, at the discretion of the OCC, as the receiver liquidates the assets of the uninsured bank. The proposed rule’s inclusion of the ‘‘ratable dividend’’ requirement is designed to incorporate the associated standards about the proper application of this statutory directive, which the judiciary has articulated over the years. The ratable dividend requirement directs the OCC to make distributions on OCC-approved claims and judicial awards on an equal footing, determining the amount of each creditor’s claim as it stands at the point of insolvency. As one example, a court’s award of interest on an unpaid debt to the date of a judgment rendered in the plaintiff’s favor after the receiver was appointed does not increase the amount of the plaintiff’s claim for purposes of making 36 Bank One Texas v. Prudential Life Ins. Co., 878 F. Supp. 943, 964–66 (N.D. Tex. 1995). 37 A. Corbin, Corbin on Contracts § 228 at 320 (1952) (addressing contracts voidable for fraud, duress, or mistake). 38 Cf. Fidelity Deposit Co. of Md. v. Conner, 973 F.2d 1236, 1241 (5th Cir. 1992). 39 See Peters v. Bain, 133 U.S. 670 (1890) (applying state substantive law to determine whether to void a transfer); Rogers v. Marchant, 91 F.2d 660, 663 (4th Cir. 1937). 40 D’Oench, Duhme & Co., Inc. v. FDIC, 315 U.S. 447, 458 (1942). A. Corbin, Corbin on Contracts, § 228 at 320 (1952) (addressing contracts voidable for fraud duress or mistake). VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 ratable dividends. As another example, the ratable dividend requirement generally restricts claims against the bank receivership for debts that were not due and owing at the appointment of the receiver, and arose for the first time as a consequence of the appointment or a post-appointment event. The OCC requests comment on alternatives to the proposed rule’s approach to distributing dividends, under which the OCC would exercise its discretion under section 194 to determine the timing of the distributions on established claims. One alternative would be to refrain from paying any dividends until all claims have been submitted and validated, with final allowed claim amounts established. This approach presents the possibility that proven claims may be delayed for a significant amount of time pending more protracted resolution of other claims. For example, if there is ongoing litigation against the bank regarding a claim, this waiting period rule would mean no dividends would be made to any claimants, even those with well-established claims, until after the litigation is finally resolved. Another option would be to allow ongoing dividends on proven claims, subject to the receiver’s retaining a percentage of the funds on hand at the time of the distribution as a pool of dividends for catch-up distributions to a successful plaintiff later. The OCC believes it would be appropriate, under such an approach, for the rule to incorporate a mechanism to balance the interests of established claimants in current payment against the interests in future relief to others asserting more protracted claims. The OCC also has an interest in being able to seek termination of a receivership after an appropriate period, in light of the assets that are realistically available, the prospects of success by plaintiffs asserting additional claims, and similar factors. Accordingly, the rule might commit the OCC to reserve a minimum of 12 percent of funds on hand at the time of distribution during the first year a distribution is made, and reduce this required minimum reserve to 8 percent 12 months later, 4 percent after the next 12 months, and eliminate the reserve requirement beyond that. Question 6. The OCC invites comment on these alternatives for making ratable distributions in accordance with section 194. Proposed § 51.8(a)(2) recognizes the basic legal premise under the NBA receivership provisions and judicial interpretations thereof that any dividend payments to creditors and PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 other claimants of an uninsured bank will be made solely from receivership funds, if any, paid to the OCC by the receiver after payment of the expenses of the receiver. This provision is also consistent with the established dichotomy of the OCC’s supervisory and receivership capacities in the NBA, as discussed earlier. Proposed § 51.8(b) similarly recognizes that assets held by an uninsured bank in a fiduciary or custodial capacity, as designated on the bank’s books and records, are not part of the bank’s general assets and liabilities held in connection with its other business, and will not be considered a source for payment for unrelated claims of creditors and other claimants. This provision is intended to make clear that the receiver will segregate identified fiduciary and custodial assets and either transfer those assets to other fiduciaries or custodians as described in connection with proposed § 51.7(b), or close the accounts and endeavor to make the associated assets available to the accountholders or their representatives through other means. Proposed § 51.8(d) provides that, after all administrative expenses and claims have been paid in full, any remaining proceeds would be paid to shareholders in proportion to their stock ownership, also as provided in 12 U.S.C. 194. Proposed § 51.9 contains provisions for termination of receiverships in which there are assets remaining after all administrative expenses and all claims had been paid. This is the scenario addressed by 12 U.S.C. 197. In such a case, section 197 requires the Comptroller to call a meeting of the shareholders of the bank at which the shareholders would decide whether to continue oversight by the Comptroller, or whether to end the receivership and appoint a liquidating agent to continue the liquidation of the remaining assets, under the direction of the board of directors and shareholders, as in a liquidation that had commenced under 12 U.S.C. 181. There may be other circumstances under which termination would take place, such as when there are no receivership assets remaining after completion of receivership activities. Under this scenario, the receiver for an uninsured bank has liquidated all of the bank’s assets, closed or transferred all fiduciary accounts to a successor fiduciary, paid all administrative expenses, and either paid creditor claims in full and distributed the remaining proceeds to shareholders, as provided in § 51.8(c), or made ratable dividends of all remaining proceeds to E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules creditors as provided in § 51.8(a), but no additional assets remain in the estate. Under these circumstances, the provisions in 12 U.S.C. 197 for termination would not apply. Question 7. The OCC requests comment on whether the rule should provide termination procedures for receiverships that are outside the circumstances addressed in 12 U.S.C. 197. V. Regulatory Analysis A. Paperwork Reduction Act Under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.), the OCC may not conduct or sponsor, and, notwithstanding any other provision of law, a person is not required to respond to, an information collection unless the information collection displays a valid Office of Management and Budget (OMB) control number. The proposed rule contains no information collection requirements under the PRA. Lhorne on DSK30JT082PROD with PROPOSALS B. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., generally requires that, in connection with a rulemaking, an agency prepare and make available for public comment a regulatory flexibility analysis that describes the impact of the rule on small entities. However, the regulatory flexibility analysis otherwise required under the RFA is not required if an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (defined in regulations promulgated by the Small Business Administration (SBA) to include commercial banks and savings institutions, and trust companies, with assets of $550 million or less and $38.5 million or less, respectively) and publishes its certification and a brief explanatory statement in the Federal Register together with the rule. The OCC currently supervises approximately 1,032 small entities. The scope of the proposed rule extends to uninsured banks. The maximum number of OCC-supervised small uninsured banks that could be subject to the receivership framework described in the proposal is approximately 18.41 41 Consistent with the General Principles of Affiliation 13 CFR 121.103(a), the OCC counts the assets of affiliated financial institutions when determining if we should classify an institution we supervise as a small entity. We used December 31, 2015, 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. SBA’s Table of Size Standards. VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 Accordingly, the OCC certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. OCC Unfunded Mandates Reform Act of 1995 Determination The OCC has analyzed the proposed rule under the factors in the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532). 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 (adjusted annually for inflation). As detailed in the SUPPLEMENTARY INFORMATION, the OCC currently supervises 52 uninsured banks, all of which are uninsured trust banks, and has not appointed a receiver for an uninsured bank since 1933. Unlike commercial and consumer banks and savings associations, which generally face credit and liquidity risks, national trust banks primarily face operational, reputational, and strategic risks. While any of these risks could result in the precipitous failure of a bank or savings association, from a historical perspective, trust banks have been more likely to decline into a weakened condition, allowing the OCC and the institution the time needed to find other solutions for rehabilitating the institution or to successfully resolve the institution without the need to appoint a receiver. Given that we believe the OCC is unlikely to place an uninsured trust bank into receivership, the OCC concludes that the proposed rule will not result in an expenditure of $100 million or more by state, local, and tribal governments, or by the private sector, in any one year. List of Subjects in 12 CFR Part 51 Administrative practice and procedure, Banks, Banking, National banks, Procedural rules, Receiverships, Authority, and Issuance. For the reasons set forth in the preamble and under the authority of 12 U.S.C. 16, 93a, 191–200, 481, 482, 1831c, and 1867 the Office of the Comptroller of the Currency proposes to add a new part 51 to chapter I of title 12, Code of Federal Regulations as follows: ■ PART 51—RECEIVERSHIPS FOR UNINSURED NATIONAL BANKS Sec. 51.1 51.2 51.3 PO 00000 Purpose and scope. Appointment of receiver. Notice of appointment of receiver. Frm 00009 Fmt 4702 Sfmt 4702 62843 51.4 51.5 51.6 51.7 Claims. Order of priorities. Administrative expenses of receiver. Powers and duties of receiver; disposition of fiduciary and custodial assets. 51.8 Payment of claims and dividends to shareholders. 51.9 Termination of receivership. Authority: 12 U.S.C. 16, 93a, 191–200, 481, 482, 1831c, and 1867. § 51.1 Purpose and scope. (a) Purpose. This part sets out procedures for receiverships of national banks conducted by the Office of the Comptroller of the Currency (OCC) under the receivership provisions of the National Bank Act (NBA). These receivership provisions apply to national banks that are not insured by the Federal Deposit Insurance Corporation (FDIC). (b) Scope. This part applies to the appointment of a receiver for uninsured national banks (uninsured banks) and the operation of a receivership after appointment of a receiver for an uninsured bank under 12 U.S.C. 191.1 § 51.2 Appointment of receiver. (a) In general. The Comptroller of the Currency (Comptroller) may appoint any person, including the OCC or another government agency, as receiver for an uninsured bank. The receiver performs its duties under the direction of the Comptroller and serves at the will of the Comptroller. The Comptroller may require the receiver to post a bond or other security. The receiver, with the approval of the Comptroller, may employ such staff and enter into contracts for professional services as are necessary to carry out the receivership. (b) Grounds for appointment. The Comptroller may appoint a receiver for an uninsured bank based on any of the grounds specified in 12 U.S.C. 191(a). (c) Judicial review. If the Comptroller appoints a receiver for an uninsured bank, the bank may seek judicial review of the appointment as provided in 12 U.S.C. 191(b). § 51.3 Notice of appointment of receiver. Upon appointment of a receiver for an uninsured bank, the OCC will provide notice to the public of the receivership, including by publication in a newspaper of general circulation for three consecutive months. The notice of the receivership will provide instructions for creditors and other claimants seeking to submit claims with the receiver for the uninsured bank. 1 This part does not apply to receiverships for uninsured Federal branches or uninsured Federal agencies. E:\FR\FM\13SEP1.SGM 13SEP1 62844 § 51.4 Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules Claims. (a) Submission of claims for consideration by the OCC. (1) Persons who have claims against the receivership for an uninsured bank may present such claims, along with supporting documentation, for consideration by the OCC. The OCC will determine the validity and approve the amounts of such claims. (2) The OCC will establish a date by which any person seeking to present a claim against the uninsured bank for consideration by the OCC must present their claim for determination. The deadline for filing such claims will not be less than 30 days after the end of the three-month notice period in § 51.3. (3) The OCC will allow any claim against the uninsured bank received on or before the deadline for presenting claims if such claim is established to the OCC’s satisfaction by the information on the uninsured bank’s books and records or otherwise submitted. The OCC may disallow any portion of any claim by a creditor or claim of a security, preference, set-off, or priority which is not established to the satisfaction of the OCC. (b) Submission of claims to a court. Persons with claims against an uninsured bank in receivership may present their claims to a court of competent jurisdiction for adjudication. Such persons must submit a copy of any final judgment received from the court to the OCC, to participate in ratable dividends along with other proved claims. (c) Right of set-off. If a person with a claim against an uninsured bank in receivership also has an obligation owed to the bank, the claim and obligation will be set off against each other and only the net balance remaining after setoff shall be considered as a claim, provided such set-off is otherwise legally valid. Lhorne on DSK30JT082PROD with PROPOSALS § 51.5 Order of priorities. The OCC will pay receivership expenses and proved claims against the uninsured bank in receivership in the following order of priority: (a) Administrative expenses of the receiver; (b) Unsecured creditors of the uninsured bank, including secured creditors to the extent their claim exceeds their valid and enforceable security interest; (c) Creditors of the uninsured bank, if any, whose claims are subordinated to general creditor claims; and (d) Shareholders of the uninsured bank. VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 § 51.6 Administrative expenses of receiver. (a) Priority of administrative expenses. All administrative expenses of the receiver for an uninsured bank shall be paid out of the assets of the bank in receivership before payment of claims against the receivership. (b) Scope of administrative expenses. Administrative expenses of the receiver for an uninsured bank include those expenses incurred by the receiver in maintaining banking operations during the receivership, to preserve assets of the uninsured bank, while liquidating or otherwise resolving the affairs of the uninsured bank. Such expenses include pre-receivership and post-receivership obligations that the receiver determines are necessary and appropriate to facilitate the orderly liquidation or other resolution of the uninsured bank in receivership. (c) Types of administrative expenses. Administrative expenses for the receiver of an uninsured bank include: (1) Salaries, costs, and other expenses of the receiver and its staff, and costs of contracts entered into by the receiver for professional services relating to performing receivership duties; and (2) Expenses necessary for the operation of the uninsured bank, including wages and salaries of employees, expenses for professional services, contractual rent pursuant to an existing lease or rental agreement, and payments to third-party or affiliated service providers, that in the opinion of the receiver are of benefit to the receivership, until the date the receiver repudiates, terminates, cancels, or otherwise discontinues the applicable contract. (5) Deposits all receivership funds collected from the liquidation of the uninsured bank in an account designated by the OCC. (b) Disposition of fiduciary and custodial accounts. The receiver for an uninsured bank closes the bank’s fiduciary and custodial appointments and accounts or transfers some or all of such accounts to successor fiduciaries and custodians, in accordance with 12 CFR 9.16, and other applicable Federal law. (c) Other powers. The receiver for an uninsured bank may exercise other rights, privileges, and powers authorized for receivers of national banks under the NBA and the common law of receiverships as applied by the courts to receiverships of national banks conducted under the NBA. (d) Reports to OCC. The receiver for an uninsured bank shall make periodic reports to the OCC on the status and proceedings of the receivership. (e) Receiver subject to removal; modification of fees. (1) The Comptroller may remove and replace the receiver for an uninsured bank if, in the Comptroller’s discretion, the receiver is not conducting the receivership in accordance with applicable Federal laws or regulations or fails to comply with decisions of the Comptroller with respect to the conduct of the receivership or claims against the receivership. (2) The Comptroller may reduce the fees of the receiver for an uninsured bank if, in the Comptroller’s discretion, the Comptroller finds the performance of the receiver to be deficient, or the fees of the receiver to be excessive, unreasonable, or beyond the scope of the work assigned to the receiver. § 51.7 Powers and duties of receiver; disposition of fiduciary and custodial accounts. § 51.8 Payment of claims and dividends to shareholders. (a) Marshalling of assets. In resolving the affairs of an uninsured bank in receivership, the receiver: (1) Takes possession of the books, records and other property and assets of the uninsured bank, including the value of collateral pledged by the uninsured bank to the extent it exceeds valid and enforceable security interests of a claimant; (2) Collects all debts, dues and claims belonging to the uninsured bank, including claims remaining after set-off; (3) Sells or compromises all bad or doubtful debts, subject to approval by a court of competent jurisdiction; (4) Sells the real and personal property of the uninsured bank, subject to approval by a court of competent jurisdiction, on such terms as the court shall direct; and (a) Claims. (1) After the administrative expenses of the receivership have been paid, the OCC shall make ratable dividends from time to time of available receivership funds according to the priority described in § 51.5, based on the claims that have been proved to the OCC’s satisfaction or adjudicated in a court of competent jurisdiction. (2) Dividend payments to creditors and other claimants of an uninsured bank will be made solely from receivership funds, if any, paid to the OCC by the receiver after payment of the expenses of the receiver. (b) Fiduciary and custodial assets. Assets held by an uninsured bank in a fiduciary or custodial capacity, as designated on the bank’s books and records, will not be considered as part of the bank’s general assets and PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\13SEP1.SGM 13SEP1 Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 / Proposed Rules liabilities held in connection with its other business, and will not be considered a source for payment of unrelated claims of creditors and other claimants. (c) Timing of dividends. The payment of dividends, if any, under paragraph (a) of this section, on proved or adjudicated claims will be made periodically, at the discretion of the OCC, as the receiver liquidates the assets of the uninsured bank. (d) Distribution to shareholders. After all administrative expenses of the receiver and proved claims of creditors of the uninsured bank have been paid in full, to the extent there are receivership assets to make such payments, any remaining proceeds shall be paid to the shareholders, or their legal representatives, in proportion to their stock ownership. § 51.9 Termination of receivership. If there are assets remaining after full payment of the expenses of the receiver and all claims of creditors for an uninsured bank and all fiduciary accounts of the bank have been closed or transferred to a successor fiduciary and fiduciary powers surrendered, the Comptroller shall call a meeting of the shareholders of the uninsured bank, as provided in 12 U.S.C. 197, for the shareholders to decide the manner in which the liquidation will continue. The liquidation may continue by: (a) Continuing the receivership of the uninsured bank under the direction of the Comptroller; or (b) Ending the receivership and oversight by the Comptroller and replacing the receiver with a liquidating agent to proceed to liquidate the remaining assets of the uninsured bank for the benefit of the shareholders, as set out in 12 U.S.C. 197. Dated: September 2, 2016. Thomas J. Curry, Comptroller of the Currency. [FR Doc. 2016–21846 Filed 9–12–16; 8:45 am] BILLING CODE P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Lhorne on DSK30JT082PROD with PROPOSALS 14 CFR Part 39 [Docket No. FAA–2016–9120; Directorate Identifier 2016–CE–024–AD] RIN 2120–AA64 Airworthiness Directives; M7 Aerospace LLC Federal Aviation Administration (FAA), DOT. AGENCY: VerDate Sep<11>2014 15:25 Sep 12, 2016 Jkt 238001 Notice of proposed rulemaking (NPRM). ACTION: We propose to adopt a new airworthiness directive (AD) for all M7 Aerospace LLC Models SA226–AT, SA226–T, SA226–T(B), SA226–TC, SA227–AC (C–26A), SA227–AT, SA227–BC (C–26A), SA227–CC, SA227– DC (C–26B), and SA227–TT airplanes. This proposed AD was prompted by corrosion and stress corrosion cracking of the pitch trim actuator upper attach fittings of the horizontal stabilizer front spar. This proposed AD would require repetitive inspections of the pitch trim actuator upper attach fittings for corrosion and/or cracking in the bolt holes and the web/flange radius with replacement of fittings as necessary. We are proposing this AD to prevent jamming and/or loss of control of the horizontal stabilizer, which could result in partial or complete loss of airplane pitch control. DATES: We must receive comments on this proposed AD by October 28, 2016. ADDRESSES: You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods: • Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments. • Fax: 202–493–2251. • Mail: U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. • Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact M7 Aerospace LLC, 10823 NE Entrance Road, San Antonio, Texas 78216; phone: (210) 824–9421; fax: (210) 804–7766; Internet: https://www.elbitsystemsus.com; email: MetroTech@ M7Aerospace.com. You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call 816–329– 4148. SUMMARY: Examining the AD Docket You may examine the AD docket on the Internet at https:// www.regulations.gov by searching for and locating Docket No. FAA–2016– 9120; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 62845 regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800–647–5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Andrew McAnaul, Aerospace Engineer, FAA, ASW–143 (c/o San Antonio MIDO), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; phone: (210) 308–3365; fax: (210) 308–3370; email: andrew.mcanaul@faa.gov. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include ‘‘Docket No. FAA– 2016–9120; Directorate Identifier 2016– CE–024–AD’’ at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to https:// www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We received reports of multiple SA226 and SA227 airplanes with corrosion and/or stress corrosion cracks in the pitch trim actuator upper attach fittings of the horizontal stabilizer front spar. This condition, if not corrected, could result in jamming and/or loss of control of the horizontal stabilizer with consequent partial or complete loss of airplane pitch control. Related Service Information Under 1 CFR Part 51 We reviewed M7 Aerospace LLC Service Bulletin (SB) 226–27–081 R1, M7 Aerospace LLC SB 227–27–061 R1, and M7 Aerospace LLC SB CC7–27–033 R1, all Issued: April 13, 2016 and Revised: June 27, 2016. The service information describes procedures for detailed visual, liquid penetrant, ultrasound and high frequency eddy current inspections of the pitch trim actuator upper attach fittings for corrosion and cracking in the bolt holes and the web/flange radius, and replacement if necessary. This service information is reasonably available E:\FR\FM\13SEP1.SGM 13SEP1

Agencies

[Federal Register Volume 81, Number 177 (Tuesday, September 13, 2016)]
[Proposed Rules]
[Pages 62835-62845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21846]

========================================================================
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.

========================================================================

Federal Register / Vol. 81, No. 177 / Tuesday, September 13, 2016 /
Proposed Rules

[[Page 62835]]

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 51

[Docket ID OCC-2016-0017]
RIN 1557-AE07

Receiverships for Uninsured National Banks

AGENCY: Office of the Comptroller of the Currency, Treasury.

ACTION: Notice of proposed rulemaking; request for public comment.

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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
proposing a rule addressing the conduct of receiverships for national
banks that are not insured by the Federal Deposit Insurance Corporation
(FDIC) (uninsured banks) and for which the FDIC would not be appointed
as receiver. The proposed rule would implement the provisions of the
National Bank Act (NBA) that provide the legal framework for
receiverships of such institutions.

DATES: Comments must be received no later than November 14, 2016.

ADDRESSES: Because paper mail in the Washington, DC area and at the OCC
is subject to delay, commenters are encouraged to submit comments
through the Federal eRulemaking Portal or email, if possible. Please
use the title ``Receiverships for Uninsured National Banks'' 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
www.regulations.gov. Enter ``Docket ID OCC-2016-0017'' in the Search
box and click ``Search.'' Click on ``Comment Now'' to submit public
comments.
Click on the ``Help'' tab on the Regulations.gov home page
to get information on using Regulations.gov, including instructions for
submitting public comments.
Email: regs.comments@occ.treas.gov.
Mail: Legislative and Regulatory Activities Division,
Office of the Comptroller of the Currency, 400 7th Street SW., Suite
3E-218, mail stop 9W-11, Washington, DC 20219.
Hand Delivery/Courier: 400 7th Street SW., Suite 3E-218,
mail stop 9W-11, Washington, DC 20219.
Fax: (571) 465-4326.
Instructions: You must include ``OCC'' as the agency name and
``Docket ID OCC-2016-0017'' in your comment. In general, the OCC will
enter all comments received into the docket and publish them on the
Regulations.gov Web site without change, including any business or
personal information that you provide 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: Go to
www.regulations.gov. Enter ``Docket ID OCC-2016-0017'' in the Search
box and click ``Search.'' Click on ``Open Docket Folder'' on the right
side of the screen and then ``Comments.'' Comments can be filtered by
clicking on ``View All'' 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. Supporting materials may
be viewed by clicking on ``Open Docket Folder'' and then clicking on
``Supporting Documents.'' 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
and photocopy comments at the OCC, 400 7th Street SW., Washington, DC.
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 hard of hearing, 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 and photocopy comments.

FOR FURTHER INFORMATION CONTACT: Mitchell Plave, Special Counsel,
Legislative and Regulatory Activities Division, (202) 649-5490, or
Richard Cleva, Senior Counsel, Bank Activities and Structure Division,
(202) 649-5500, or for persons who are deaf or hard of hearing, TTY,
(202) 649-5597, Office of the Comptroller of the Currency, 400 7th
Street SW., Washington, DC 20219.

SUPPLEMENTARY INFORMATION:

I. Introduction

The proposed rule addresses how the OCC would conduct the
receivership of an uninsured national bank.\1\ The proposed rule would
implement the provisions of the NBA that provide the legal framework
for receiverships for such institutions, 12 U.S.C. 191-200.\2\
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\1\ Unlike national trust banks, all Federal savings
associations (FSAs), including FSA trust banks, are required to be
insured. For this reason, this proposed rule would not apply to
FSAs, given that receiverships for FSAs would be conducted by the
FDIC.
\2\ The proposed rule establishes the basic receivership
framework, which may be supplemented over time with more detailed
guidance, for example, concerning the details of the receiver's
administration of the receivership estate.
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There are only a small number of uninsured national banks in
operation today. The OCC, however, retains the authority to grant new
charters to entities whose business plan does not call for them to
obtain deposit insurance if the OCC determines that the entities have a
reasonable chance of succeeding and can operate in a safe and sound
manner, among other considerations. Although the OCC has not placed an
uninsured national bank into receivership since the Great Depression,
there are several reasons to consider articulating a framework for such
receiverships now. First, since the financial crisis of 2007-2008,
regulators have undertaken, on both a domestic and coordinated global
basis, to evaluate, discuss, and maintain preparedness for effective
governmental responses to critical financial distress. This focus
highlights the need to consider an appropriate resolution framework for
entities, such as uninsured national banks, that currently lack such a
framework. Second, the establishment of a framework for

[[Page 62836]]

receivership for these uninsured institutions would provide clarity to
market participants about how they will be treated in receivership. The
proposed rule would set forth a framework the OCC can use should an
uninsured institution weaken and fail, be it an uninsured trust bank or
another uninsured special purpose bank.

II. Background

Statutory Authority for Receiverships

From the beginning of the national banking system in 1863 until the
creation of the FDIC in 1933, receiverships of national banks were
conducted by the Comptroller and by a receiver who was appointed by,
and worked under the direction of, the Comptroller.\3\ The Comptroller
and receiver had the powers and responsibilities set out in the
receivership provisions of the NBA and exercised the powers available
at common law for receivers.\4\ During this time, a substantial body of
case law developed applying the statutory provisions and common law
principles to national bank receiverships.
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\3\ See Earle v. Penn, 178 U.S. 449 (1900); Cook County Nat'l
Bank v. United States, 107 U.S. 445 (1883).
\4\ See 12 U.S.C. 191-200.
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In 1933, the FDIC was established and, among its other
responsibilities, was designated as the receiver for national banks.\5\
As receiver, the FDIC has both the powers available to national bank
receivers under the NBA and additional powers provided to the FDIC in
the Federal Deposit Insurance Act (FDIA). When the FDIC serves as
receiver, it does not operate under the direction of the Comptroller,
unlike the pre-1933 non-FDIC receivers.\6\ From 1933 through 1989, the
FDIC was designated to be appointed receiver for national banks
generally, both insured and uninsured.\7\
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\5\ See Banking Act of 1933, 73d Cong., 1st Sess., ch. 89,
section 12B(1), 48 Stat. 172 (1933).
\6\ See 12 U.S.C. 1821(c)(2)(C).
\7\ For example, before its amendment in 1989, section 11(c) of
the FDIA, 12 U.S.C. 1821(c) stated that, whenever the Comptroller
appointed a receiver for any insured or uninsured national bank or
Federal branch, the Comptroller ``shall appoint'' the FDIC receiver
for such closed bank. 12 U.S.C. 1821(c) (1988). Federal branches
were added to section 1821(c) in 1978 when Federal branches were
created in the International Banking Act, 12 U.S.C. 3101 et seq.
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The receivership regime for national banks was significantly
changed again when Congress adopted the Financial Institutions Reform,
Recovery and Enforcement Act of 1989 (FIRREA). Among many other
consequences, the amendments to the FDIA in FIRREA resulted in the FDIC
being specified as the mandatory receiver only for insured depository
institutions. Thus, today the FDIC is the required receiver only for an
insured national (or state) bank.\8\ Congress also subsequently amended
the receivership appointment provisions of the NBA, 12 U.S.C. 191, to
provide that the Comptroller may appoint a receiver for any national
bank and that, if the bank is an insured bank, the receiver must be the
FDIC.\9\ Post-FIRREA and post-FDICIA, the FDIA no longer expressly
addresses receiverships of uninsured national banks, and there are no
statutory limits on the Comptroller's discretion with respect to whom
to appoint as receiver of an uninsured bank.
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\8\ Section 11(c)(2)(A)(ii) of the FDIA provides that the FDIC
``shall'' be appointed receiver, and ``shall'' accept such
appointment, whenever a receiver is appointed for the purpose of
liquidation or winding up the affairs of an insured Federal
depository institution by the appropriate Federal banking agency,
notwithstanding any other provision of Federal law. 12 U.S.C.
1821(c)(2)(A)(ii). The term ``Federal depository institution''
includes national banks. 12 U.S.C. 1813(c)(4).
\9\ In 1991, in the Federal Deposit Insurance Corporation
Improvement Act of 1991 (FDICIA), Congress amended 12 U.S.C. 191 to
provide that the Comptroller may appoint the FDIC ``as receiver for
any national banking association.'' Public Law 102-242, section 133,
105 Stat. 2236, 2271. FDICIA also amended section 191 to set out the
current grounds for receivership. Prior to the amendment, section
191 provided that the Comptroller may appoint a receiver for one of
three grounds previously set out in the statute. In October 1992,
before the amendment went into effect, Congress revised the language
to provide that the receiver shall be the FDIC ``if the national
bank is an insured bank.'' Act of October 28, 1992, Public Law 102-
550, Title XVI, Subtitle A, section 1609, 106 Stat. 4090 (1992).
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Based on this statutory history, it appears that today, unlike in
the period between 1933 and 1989, the FDIA would not apply to a
receivership of an uninsured bank conducted by the OCC, and that such a
receivership would be governed exclusively by the NBA provisions, the
common law of receivers, and cases applying the statutes and common law
to national bank receiverships.\10\ FIRREA and FDICIA greatly expanded
the FDIC's powers in resolving failed insured depository institutions.
The OCC believes that those additional powers are not available to the
OCC as receiver of uninsured banks under the NBA.
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\10\ While the receivership operations will be governed by the
NBA provisions, the common law of receivers, and cases applying the
statutes and common law to national bank receiverships, the grounds
for appointment of a receiver in the NBA for a national bank,
including an uninsured bank, incorporate by reference the grounds
for appointment in the FDIA. See 12 U.S.C. 191(a)(1) (referring to
12 U.S.C. 1821(c)(5)).
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Uninsured Banks Supervised by the OCC

As of May 2016, the OCC supervises 52 uninsured banks. Currently,
all of these institutions are trust banks. The OCC may charter national
banks whose operations are limited to those of a trust company and
related activities (national trust bank).\11\ The activities of
national trust banks are similar to those of trust departments of full-
service banks. But unlike a trust department, they are not part of a
larger bank that also engages in commercial banking. All but a handful
of the national trust banks do not engage in the business of receiving
deposits and instead hold trust funds, which are off-balance sheet
assets that are not considered to be deposits and are not insured by
the FDIC.
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\11\ See, e.g., 12 U.S.C. 27(a); 12 CFR 5.20(l). The OCC also
charters Federal savings associations. Unlike national trust banks,
all Federal savings associations are required to be insured.
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National trust banks typically have few assets on the balance
sheet, usually composed of cash on deposit with an insured depository
institution, investment securities, premises and equipment, and
intangible assets. These banks exercise fiduciary and custody powers,
do not make loans, do not rely on deposit funding, and consequently
have simple liquidity management programs. In view of these
differences, the OCC typically requires these banks to hold capital in
a specific minimum amount; as a result they hold capital in amounts
that substantially exceed the ``well capitalized'' standard that
pertains when national banks calculate their capital pursuant to the
OCC's rules in 12 CFR part 3.
The business model of national trust banks is to generate income in
the form of fees by offering fiduciary and custodial services that
generally fall into one or more of a few broad categories. Some of
these national trust banks focus on institutional asset management,
providing trust and custodial services for investment portfolios of
pension plans, foundations and endowments, and other entities, often
with an investment management component. These firms often also offer
private wealth management and individual retirement savings services.
These services provided by national trust banks are similar to those
provided by other non-bank investment management firms.
A few other national trust banks serve primarily as a fiduciary and
custodian to facilitate the establishment of Individual Retirement
Accounts by customers of an affiliated mutual fund complex or broker-
dealer firm. While it is not common, a few national trust banks have
been established for a special purpose within a larger financial
company to accomplish a transition or

[[Page 62837]]

other specific purpose over a limited time period, such as facilitating
a consolidation.
Some national trust banks provide custodial services. One example
of this type of service is corporate trust accounts, under which the
bank performs services for others in connection with their issuance,
transfer, and registration of debt or equity securities. Other custody
accounts may be a holding facility for customer securities, where the
bank assists institutional customers with global settlement and
safekeeping of the customer's securities.
Many of the uninsured national trust banks are subsidiaries or
affiliates of a full-service insured national bank. Another group are
affiliates of an insured state bank. In these cases where the national
trust bank is part of a bank holding company, the bank and the company
have decided for a variety of business reasons to offer some fiduciary
services to their customers in a separate national trust bank charter.
National trust banks affiliated with other banks can vary greatly in
complexity, in the type of fiduciary or custody businesses they engage
in, and in the amount of assets under management or administration.
Typically they maintain a few thousand accounts for individuals or
family trusts containing assets totaling in the range of $10 billion,
or in other cases maintaining as many as 10,000 corporate custody
accounts totaling in the range of $20 billion.
Other uninsured national trust banks are not affiliated with an
insured depository institution, but are affiliated with an investment
management firm or other financial services firm. These national trust
banks provide fiduciary and custody services for customers of the firm.
National trust banks affiliated with an investment management firm or
other financial services firm also can vary greatly in complexity, in
the type of fiduciary or custody businesses they engage in, and in the
amount of assets under management or administration. While these
national trust banks may, in exceptional cases, hold as much as $1
trillion in fiduciary and custodial assets, they more commonly hold
assets in the $5-$50 billion range across a few thousand accounts.
Still other national trust banks have no affiliation with a larger
parent company. These independent firms typically manage a few billion
dollars in fiduciary and custodial assets across a few thousand
accounts, while others might be described as boutique trust firms, not
affiliated with a larger parent company, with a few employees, fewer
than 500 customers, and $1 billion or less in fiduciary assets.
The OCC has not appointed a receiver for an uninsured bank since
shortly after the Congress established the FDIC in response to the
banking panics of 1930-1933. Because of the fundamentally different
business model of national trust banks, compared to commercial and
consumer banks and savings associations noted above, national trust
banks face very different types of risks. National trust banks
primarily face operational, compliance, strategic, and reputational
risks without the credit and liquidity risks that additionally impact
the solvency of commercial and consumer banks. While any of these risks
can result in the precipitous failure of a bank or savings association,
from a historical perspective, trust banks have been more likely to
decline into a weakened condition, allowing the OCC and the institution
the time needed to find other solutions for rehabilitating the
institution or to successfully resolve the institution without the need
to appoint a receiver.\12\
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\12\ In some instances, uninsured trust banks enter into
safeguard agreements with the OCC to facilitate early resolution
through a sale, merger or liquidation, thereby avoiding the need for
a receivership. These safeguard agreements are entered into as part
of the licensing process and concern operations, capital, and
liquidity.
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The OCC believes it would nevertheless be beneficial to financial
market participants and the broader community of regulators for the OCC
to clarify the receivership framework for uninsured banks. Although the
OCC conducted 2,762 receiverships pursuant to this framework in the
years prior to the creation of the FDIC,\13\ and the associated legal
issues are the subject of a robust body of published judicial
precedents, the details have not been widely articulated in recent
jurisprudence or legal commentary. This proposal may also facilitate
synergies with the ongoing efforts of U.S. and international financial
regulators since the financial crisis to enhance our readiness to
respond effectively to the different critical financial distresses that
could manifest themselves unexpectedly in the diverse types of
financial firms presently operating in the market.
---------------------------------------------------------------------------

\13\ Annual Report of the Comptroller of the Currency for the
Year Ended October 31, 1934 at 33 (discussing the status of active
and closed receiverships under the jurisdiction of the Comptroller
between 1865 and 1934).
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Other Types of Uninsured National Banks

The OCC has the authority to charter and supervise special purpose
banks with operations limited solely to providing fiduciary
services.\14\ In addition to national trust banks, the OCC also may
charter other special purpose banks with business models that are
within the business of banking. The OCC's rules provide that a special
purpose bank must conduct at least one of the three core banking
functions, namely receiving deposits, paying checks, or lending
money.\15\ As part of the agency's initiative on responsible innovation
in the Federal banking system, the OCC is considering how best to
implement a regulatory framework that is receptive to responsible
innovation, such as advances in financial technology.\16\ In
conjunction with this effort, the OCC is considering whether a special
purpose charter could be an appropriate entity for the delivery of
banking services in new ways. For this reason, the OCC requests comment
on the utility of the receivership structure in the proposed rule for
receivership of such a special purpose bank.
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\14\ 12 U.S.C. 27(a); 12 CFR 5.20(e)(1), 5.20(l).
\15\ 12 CFR 5.20(e)(1).
\16\ See OCC, Supporting Responsible Innovation in the Federal
Banking System: An OCC Perspective at 2 (March 2016) available at
https://www.occ.treas.gov/publications/publications-by-type/other-publications-reports/pub-responsible-innovation-banking-system-occ-perspective.pdf.
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Question 1. Would application of the NBA's legal framework for
receiverships of uninsured banks to such innovative special purpose
banks raise any unique considerations?

Uninsured Federal Branches and Agencies

In addition to conducting receiverships for uninsured national
banks, the OCC has statutory authority to appoint and oversee a
receiver for uninsured Federal branches and agencies (uninsured Federal
branches).\17\ While there are some powers and functions that overlap
in conducting receiverships for uninsured banks and Federal branches,
there are differences that make receiverships for Federal branches more
complex.
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\17\ 12 U.S.C. 3102(j).
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The International Banking Act of 1978 \18\ (IBA) sets forth the
legal framework for the establishment and operation of federally
licensed branches and agencies of foreign banks. Under the IBA, a
receiver appointed by the Comptroller for an uninsured Federal branch
would exercise the same rights, privileges, powers, and authority in
conducting the receivership as it would in conducting a receivership
for an uninsured bank.\19\ As such, with some

[[Page 62838]]

exceptions, the provisions in the NBA for receiverships would generally
apply to receiverships for Federal branches.\20\ However, the nature of
an uninsured Federal branch's more typical commercial banking type of
business model, the overlay of other Federal laws including provisions
on receiverships in the IBA, and concerns being deliberated currently
on a global basis among financial regulators about the resolution of
global systemically important banks make the subject of uninsured
Federal branch resolutions a more complicated topic.
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\18\ 12 U.S.C. 3101 et seq.
\19\ 12 U.S.C. 3102(j).
\20\ This approach is consistent with the ``national treatment''
requirement in the IBA, 12 U.S.C. 3102(b).
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For this reason, the scope of this proposed rule does not extend to
receiverships for uninsured Federal branches. The OCC will continue
reviewing the regulatory and legal issues relating to receiverships for
Federal branches and will confer with other regulators on these issues.
The OCC may seek public input on this subject as part of our
deliberations on the topic in the future.

Cost Implications of OCC Receivership Function

The OCC's establishment of a receivership framework may also raise
cost implications for the OCC. In addition to the OCC's costs
incidental to the selection and supervision of a receiver, and approval
of claims against the receivership for a share of the receiver's
liquidating dividends, the receiver for an uninsured national bank
will, as a matter of necessity, incur administrative costs in
performing liquidation functions. As discussed below, the NBA provides
that the receiver's administrative expenses are to be paid first out of
the assets of the receivership, but there may be circumstances where
the receiver's administrative expenses exceed those resources.
The OCC is considering how it might cover these types of costs. One
approach would be to build resources to defray these costs into our
structure for collection of assessments from the uninsured institutions
we supervise, in accordance with 12 CFR part 8. Any change to the OCC's
assessments would be set forth in a separate notice of proposed
rulemaking.
Question 2. The OCC requests comment on alternatives that might be
implemented to take account of these cost considerations.

III. Proposed Rule and Request for Comment

Overview

The proposed rule, as described below, incorporates the framework
set forth in the NBA for the Comptroller to appoint a receiver for an
uninsured bank, generally under the same grounds for appointment of the
FDIC as receiver for insured national banks. The uninsured bank may
challenge the appointment in court, and the NBA affords jurisdiction to
the appropriate United States district court for this purpose. The OCC
will provide the public with notice of the appointment, as well as
instructions for submitting claims against the uninsured bank in
receivership. The OCC may appoint any person as receiver, including the
OCC or another government agency.
The receiver carries out its duties under the direction of the
Comptroller. Under the NBA, the OCC functions in two capacities. Its
primary capacity is that of a regulatory agency, in which the OCC
oversees national banks, Federal savings associations, and Federal
branches and Federal agencies, supervising them under the charge of
assuring the safety and soundness of, and compliance with laws and
regulations, fair access to financial services, and fair treatment of
customers by, the institutions and other persons subject to its
jurisdiction.\21\ The OCC is also directed by the NBA to act in a
receivership capacity, under which the OCC appoints and oversees
receivers for uninsured banks, thereby facilitating the winding down of
bank operations, assets, and accounts while minimizing disruptions to
customers and creditors of the institution. These capacities are
separate in a way that parallels the separate capacities of the FDIC
which, in its corporate capacity, serves as the insurer of depository
institutions and oversees state non-member banks, and, in its
receivership capacity, oversees the winding down of failed insured
depository institutions. These two capacities are distinct both
functionally and legally and reflect different public policy roles. A
separate legal status attaches to each capacity.\22\ A receiver acting
under either the NBA in the case of the OCC or the FDIA in the case of
the FDIC ``step[s] into the shoes of'' the failed institution.\23\
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\21\ 12 U.S.C. 1.
\22\ See O'Melveny & Meyers v. FDIC, 512 U.S. 79, 85 (1994)
(finding that FDIC-Receiver ``steps into the shoes'' of the failed
institution and is ``not the United States''). The O'Melveny &
Meyers case concerns a choice of law question in a professional
malpractice suit brought against the former counsel for the savings
and loan. The Court concluded that the FDIC as receiver asserts the
rights of the failed bank in receivership, not of ``FDIC-
Corporate,'' and therefore state law, not Federal common law,
applies. See also Bullion Services v. Valley State Bank, 50 F.3d
705, 708-709 (9th Cir. 1995) (noting that, under Federal law, the
FDIC is empowered to operate to act in two entirely separate and
distinct capacities) (citations omitted); FDIC v. Fonesca, 795 F.2d
1102, 1109 (1st Cir. 1986) (stating that `` `Corporate' FDIC and
`Receiver' FDIC are separate and distinct legal entities''); Jones
v. FDIC, 748 F.2d 1400, 1402 (10th Cir. 1984) (same).
\23\ See supra, note 22.
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Under the ``separate capacities'' doctrine, which has long been
recognized in litigation involving the FDIC, it is well established
that the agency, when acting in one capacity, is not liable for claims
against the agency acting in its other capacity.\24\ As a corollary to
this doctrine, the assets the agency oversees in the receivership are
limited to the funds making up the failed bank's estate. For these
reasons, payment of claims or judgments concerning the receivership are
made from the receivership estate, not from the agency's operating
budget and funds.
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\24\ See Dababneh v. FDIC, 971 F.2d 428, 432 (10th Cir. 1992)
(``[b]ecause they are discrete legal entities, Corporate FDIC is not
liable'' for obligations and liabilities of the FDIC as receiver)
(citations omitted); accord FDIC v. Nichols, 885 F. 2d 633, 636 (9th
Cir. 1989) (recognizing the corporate-receiver distinction in a case
involving the purchase of receivership assets by FDIC in its
corporate capacity); FDIC v. Fonseca, 795 F.2d 1102, 1109 (1st Cir.
1986) (refusing to address claims asserted against FDIC in its
corporate capacity that were based on actions taken by the FDIC as
receiver); Mill Creek Group, Inc. v. FDIC, 136 F. Supp. 2d 36, 48
(D. Conn. 2001) (finding that FDIC in its corporate capacity could
not be held liable for breach of a contract entered into by FDIC in
its receiver capacity).
The same reasoning has been applied to cases involving the
former Resolution Trust Corporation. See, e.g., U.S. v. Schroeder,
86 F.3d 114, 117 (8th Cir. 1996) (stating that it is ``well
established that the RTC, when acting in one capacity, is not liable
for claims against the RTC acting in one of its other capacities'');
see also Howerton v. Designer Homes by Georges, Inc., 950 F.2d 281,
283 (5th Cir. 1992) (``The RTC, in its corporate capacity, is not
liable for claims against the RTC in its capacity as conservator or
receiver.'')
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The proposed rule reflects this well-established understanding of
the functional and legal distinctions between the corporate and
receiver capacities. The proposed rule follows the statutory framework
under the NBA, under which persons with claims against an uninsured
bank in receivership would file their claims with the receiver for the
failed uninsured bank, for review by the OCC. In the event the OCC
denies the claim, the only remedy available to the claimant is to bring
a judicial action against the uninsured bank's receivership estate and
assert the claim de novo. A person is also free to initiate its claim
by bringing an action against

[[Page 62839]]

the receivership estate in court for adjudication, and then submit the
judgment to the OCC to participate in ratable dividends of liquidation
proceeds along with other approved and adjudicated claims.\25\
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\25\ See First Nat'l Bank of Bethel v. Nat'l Pahquioque Bank, 81
U.S. 383, 401 (1871).
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Approved or adjudicated claims are paid solely out of the assets of
the uninsured bank in receivership. As described in the proposed rule,
the receiver liquidates the assets of the uninsured bank, with court
approval, and pays the proceeds into an account as directed by the OCC.
The categories of claims and the priority thereof for payment are set
out in the proposed rule. The proposed rule also clarifies certain
powers held by the receiver, and describes the receiver's duties in
winding up the affairs of the uninsured bank.

Section-by-Section Analysis

Proposed Sec. 51.1 identifies the purpose and scope of the
proposed rule and clarifies that the proposal would apply to
receiverships conducted by the OCC under the NBA for national banks
that are not insured by the FDIC. The proposed rule does not extend to
receiverships for uninsured Federal branches, although elements of the
framework may be similar for uninsured Federal branch receiverships,
which would also be resolved under provisions of the NBA. Proposed
Sec. 51.2 is based on 12 U.S.C. 191 and 192 and concerns appointment
of a receiver. The proposed rule sets out the Comptroller's authority
to appoint any person, including the OCC or another government agency,
as receiver for an uninsured bank and provides that the receiver
performs its duties subject to the approval and direction of the
Comptroller.\26\ If the Comptroller were to appoint the OCC as
receiver, the OCC would act in a receivership capacity with respect to
the uninsured bank in receivership, rather than in the OCC's
supervisory capacity. As discussed above, this dual capacity (OCC as
supervisor versus OCC as receivership sponsor for an uninsured bank)
recognizes that, while the NBA makes the receivership oversight and
claims review functions of the Comptroller part of the OCC's
responsibilities, the receivership oversight role is unique and
distinct from the OCC's role as a Federal regulatory agency and
supervisor of national banks and Federal savings associations. This is
comparable to the dual capacity of the FDIC's receivership function for
insured depository institutions pursuant to the FDIA.
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\26\ But see 12 U.S.C. 1821(c)(6) (Comptroller may appoint the
FDIC as conservator or receiver and the FDIC has discretion to
accept such appointment); id. at Sec. 1821(c)(2)(C) (FDIC ``not
subject to any other agency'' when acting as conservator or
receiver''). Read together, these provisions likely mean that the
provision in Sec. 51.2 concerning oversight of the receiver by the
Comptroller would not apply to the FDIC acting as conservator or
receiver for an uninsured institution, should the Comptroller
appoint the FDIC and the FDIC accept such an appointment.
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Proposed Sec. 51.2 also provides that the Comptroller may require
the receiver to post a bond or other security and the receiver may hire
staff and professional advisors, with the approval of the Comptroller,
if needed to carry out the receivership. This section also identifies
the grounds for appointment of a receiver for an uninsured bank and
notes that uninsured banks may seek judicial review of the appointment,
pursuant to 12 U.S.C. 191.
Proposed Sec. 51.3 provides that the OCC would provide notice to
the public of the appointment of a receiver for the uninsured bank. The
proposed rule specifies that one component of this notice will include
publication in a newspaper of general circulation selected by the OCC
for three consecutive months, as required by 12 U.S.C. 193. As a
component of the OCC's notice to the public about the receivership, the
OCC would also provide instructions for creditors and other claimants
seeking to submit claims with the receiver for the uninsured bank.
The OCC believes that the purpose of section 193 may be better
served by publication through means other than publication in a
newspaper. For example, the OCC could provide direct notice to
customers and creditors of the uninsured bank, to the extent the
uninsured bank's records included current contact information. The OCC
could also arrange to provide notice through electronic channels that
customers would typically use to contact the uninsured bank, such as
the uninsured bank's Web site. The OCC believes that an effective set
of notice protocols would best be established on a case-by-case basis,
in light of a specific uninsured bank's fiduciary and custodial
activities, the types of customers served by the bank, coordination
with other notice protocols under way for any related entity that is
also undergoing resolution activity, and similar factors.
Question 3. The OCC invites comment on the appropriate types of,
and channels for, notices of receiverships, as well as how frequently
to provide these notices. Commenters are also invited to address
whether customized notice should be provided in addition to the
requirement for newspaper publication, which would apply in every case.
Proposed Sec. 51.4 addresses the submission of claims to the
receiver for an uninsured bank. Under proposed Sec. 51.4(a), a person
with a claim against the receivership may submit a claim to the OCC,
which would consider the claim and make a determination concerning its
validity and approved amount. This process reflects the provisions in
12 U.S.C. 193 and 194 regarding presentation of claims and payment of
dividends on claims that are proved to the satisfaction of the
Comptroller. Proposed Sec. 51.4 also provides that the Comptroller
would establish a deadline for filing claims with the receiver, which
could not be earlier than 30 days after the three-month publication of
notice required by proposed Sec. 51.3. This provision reflects NBA
case law that permitted the Comptroller to establish a date for filing
claims against the receiver for a failed bank, before this
responsibility shifted to the FDIC.\27\
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\27\ See Queenan v. Mays, 90 F.2d 525, 531 (10th Cir. 1937).
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Proposed Sec. 51.4(b) clarifies that persons with claims against
an uninsured bank in receivership may present their claims to a court
of competent jurisdiction for adjudication, in addition to, or as an
alternative to, filing a claim with the OCC. If successful in court,
such persons would be required to submit a copy of the final judgment
to the OCC to participate in ratable dividends of liquidation proceeds
along with claims against the bank in receivership submitted to, and
approved by, the OCC. The proposed rule requires submission of a copy
of the court's final judgment to the OCC. This provision is based on 12
U.S.C. 193 and 194.
In this regard, the receivership regime established by the NBA
differs somewhat from the approach set out in other resolution regimes,
such as the bankruptcy provisions of the United States Code and the
receivership provisions of the FDIA. Under those resolution regimes,
creditors and claimants must generally submit their claims to the
receivership estate for centralized administration and disposition, and
claims that are not submitted by the claims deadline are barred from
any participation in liquidation payments. The NBA provisions are
different in that claimants are provided the opportunity to submit
claims to the OCC for evaluation, but are not foreclosed from pursuing
judicial resolution by filing litigation (or continuing a pre-existing

[[Page 62840]]

lawsuit) in a court of competent jurisdiction against the uninsured
bank in receivership.
The claims filing deadline established by the Comptroller pursuant
to proposed Sec. 51.4(a) is the date by which claimants seeking review
under the OCC's claims process must make their submission.
Nevertheless, a claimant that has not made a submission to the OCC by
the deadline is not barred from initiating judicial claims against the
uninsured bank in receivership solely by virtue of missing the claims
deadline.\28\
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\28\ See First Nat'l Bank of Bethel v. Nat'l Pahquioque Bank, 81
U.S. 383, 401 (1871); Queenan, 90 F.2d at 531. As noted above, it is
incumbent on a claimant that pursues the judicial route and
ultimately obtains judicial relief to submit the final judicial
determination and award to the OCC, in order to participate in the
OCC's periodic ratable dividends of liquidation proceeds of the
receivership estate. Except with respect to a valid and enforceable
security interest in specific property of the uninsured bank
established as part of a final judicial determination, there are no
assets or funds available to a successful judicial claimant other
than the ratable dividend process set out in 12 U.S.C. 194 and
described in proposed Sec. 51.8.
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The NBA's receivership provisions are like the receivership regime
established by the FDIC under the FDIA, however, in that the avenue
available to a party whose claim has been denied by the FDIC or OCC
performing the agencies' receivership claims functions is to file (or
continue) a de novo judicial action asserting the facts and legal
theory of the claim against the receivership of the bank. The NBA does
not contemplate or support anything in the nature of further action by
the claimant in an administrative or judicial forum against the OCC
seeking review of the claim determination.
The OCC believes that the proposed claims process offers many
claimants advantages over other methods of claims resolution. In
particular, for customers of the institution, and for holders of
receivables and other contractual credit claims against the uninsured
bank, the extent and validity of the claim will frequently be clear
from the books and records of the bank, account statements provided to
customers, and similar documents. The claims process provides an
efficient way for identification, in a timely way, of the largest group
of claimants who will be eligible to participate in ratable
distributions of liquidation dividends, as described in proposed Sec.
51.8. The OCC's public notices of the receivership will provide
claimants with information on how to obtain more detailed instructions
for submitting claims to the OCC and on disposition of claims.
If a claimant asserts that a claim incorporates a valid and
enforceable security interest in assets of the uninsured bank, the OCC
believes that it may be in that claimant's interest to apprise the OCC
of that claim through the claims process. While the NBA does not
restrict the holder of a valid security interest in uninsured bank
assets from enforcing that interest through applicable state law,
making the OCC aware of the claim and presenting an opportunity for it
to be evaluated creates an opportunity to explore whether the
receivership estate might negotiate an arrangement that would provide
the claimant the value of the security interest in a more efficient
way. Also, if it turns out that a portion of the claim remains
unsecured, the claimant will have presented their claim to the OCC, and
would participate in ratable dividends if the OCC approved the claim.
For these reasons, the OCC has included language in proposed Sec.
51.4(a) referring equally to secured and unsecured claims.
Proposed Sec. 51.4(c) provides that if a person with a claim
against an uninsured bank in receivership also has an obligation owed
to the bank, the claim and obligation will be set off against each
other and only the net balance remaining after set-off will be
considered as a claim. To this end, proposed Sec. 51.4(a) also
includes language referring to claims for set-off. The right of set-off
where parties have mutual obligations has long been recognized as an
equitable principle.\29\ Well-settled case law has held that a
receivership creditor's or other claimant's equitable right to a set-
off is not precluded by the ratable distribution requirement of the
NBA, provided such set-off is otherwise legally valid.\30\ If, after
set-off, an amount is owed to the creditor, the creditor may file a
claim for the net amount remaining as any other unsecured creditor.
Conversely, if, after set-off, an amount is owed to the bank, the
creditor does not have a claim and the net amount remaining is an asset
of the uninsured bank, which the receiver may obtain in connection with
marshalling the assets (as further described in proposed Sec.
51.7(a)).
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\29\ Scammon v. Kimball, 92 U.S. 362 (1876); Blount v. Windley,
95 U.S. 173 (1877), 177; Carr v. Hamilton, 129 U.S. 252 (1889).
\30\ See Scott v. Armstrong, 146 U.S. 499, 510 (1892);
InterFirst Bank of Abilene, N.A. v. FDIC, 777 F.2d 1092, 1095-1096
(5th Cir. 1985); FDIC v. Mademoiselle of California, 379 F.2d 660,
663 (9th Cir. 1967).
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Question 4. The OCC requests comment on whether there are
additional characteristics of set-offs or other situations in which
set-off may arise that should be included in the rule.
Proposed Sec. 51.5 sets out the order of priorities for payment of
administrative expenses of the receiver and claims against the
uninsured bank in receivership. Under this section, the OCC would pay
these expenses and claims in the following order: (1) Administrative
expenses of the receiver; (2) unsecured creditors, including secured
creditors to the extent their claim exceeds their valid and enforceable
security interest; (3) creditors of the uninsured bank, if any, whose
claims are subordinated to general creditor claims; and (4)
shareholders of the uninsured bank. The order is based on case law and,
in the case of the first priority for administrative expenses, on 12
U.S.C. 196.\31\
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\31\ See Ticonic Nat'l Bank v. Sprague, 303 U.S. 406, 410-411
(1938); Merrill v. Nat'l Bank of Jacksonville, 173 U.S. 131, 146
(1899); Scott v. Armstrong, 146 U.S. 499, 510 (1892); Bell v.
Hanover Nat'l Bank, 57 F. 821, 822 (C.C.S.D.N.Y. 1893).
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A creditor or other claimant with a security interest that was
valid and enforceable as to its terms prior to the appointment of the
receiver is entitled to exercise that security interest, outside the
priority of distributions set out in the proposed rule.\32\ If the
collateral value exceeds the amount of the claim as it was immediately
prior to the receiver's appointment, the surplus remains an asset of
the uninsured bank, and the receiver may obtain it in connection with
marshalling the assets (as further described in proposed Sec.
51.7(a)).\33\
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\32\ Ticonic Nat'l Bank v. Sprague, 303 U.S. 406, 410-411
(1938); Bell v. Hanover Nat'l Bank, 57 F. 821, 822 (C.C.S.D.N.Y.
1893).
\33\ Bell v. Hanover Nat'l Bank, 57 F. 821, 822 (C.C.S.D.N.Y.
1893).
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Liens arising from judicial determinations after the initiation of
the receivership, as well as contractual liens that are triggered due
to the appointment of a receiver or other post-appointment events, are
not enforceable. This is because recognition of these liens would
afford these claimants a priority that is not recognized under the
established legal priorities described in proposed Sec. 51.5.
Similarly, a secured creditor is not entitled to a priority
distribution of any portion of the claim that is not covered by the
value of the collateral, because the creditor is in the position of an
unsecured creditor for that portion of the claim, and must participate
in ratable liquidation distributions on par with other unsecured
creditors.\34\
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\34\ Merrill v. Nat'l Bank of Jacksonville, 173 U.S. 131, 146
(1899).
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Assets held by the uninsured bank in a fiduciary or custodial
capacity, as

[[Page 62841]]

identified on the bank's books and records, are not general assets of
the bank. Section 51.8(b) of the proposed rule states this, for the
absence of doubt. In the same vein, the claim of the customer to
fiduciary or custodial assets is separate from, and not subject to, the
priority set out in proposed Sec. 51.5. Fiduciary and custodial
customers of the bank have direct claims on those assets pursuant to
their fiduciary or custodial account contracts. However, the priority
of a fiduciary or custodial customer's other claims against the bank,
if any, would remain subject to the priority described in proposed
Sec. 51.5. For example, a fiduciary customer's claim for a refund of
prepaid investment management fees that were attributable to periods
after the receiver returned the fiduciary assets to the customer,
generally would be an unsecured claim covered by proposed Sec.
51.5(b). The claims process described in Sec. 51.4(b) of the proposed
rule is available to a fiduciary customer, for both a direct claim on
fiduciary assets, as well as a receivership claim for an obligation of
the bank.
Question 5. The OCC requests comment on whether there are other
Federal statutes regarding specific types of claims that may be
applicable to a receivership of an uninsured bank under the NBA and
that would give certain claims a different priority, such as claims
owed to the Federal government.
Proposed Sec. 51.6 provides that all administrative expenses of
the receiver for an uninsured bank will be paid out of the assets of
the receivership before payment of claims against the receivership.
This reflects the requirements in 12 U.S.C. 196. The proposed rule also
states that receivership expenses would include pre-receivership and
post-receivership obligations that the receiver determines are
necessary and appropriate to facilitate the orderly liquidation or
other resolution of the uninsured bank in receivership. To further
illustrate the kinds of expenses that section 196 affords a first
priority claim on the uninsured bank's receivership assets, proposed
Sec. 51.6 enumerates examples of such administrative expenses, such as
wages and salaries of employees, expenses for professional services,
contractual rent pursuant to an existing lease or rental agreement, and
payments to third-party or affiliated service providers, when the
receiver determines these expenses are of benefit to the receivership.
Proposed Sec. 51.7 contains provisions describing the powers and
duties of the receiver and the disposition of fiduciary and custodial
accounts. As described in proposed Sec. 51.7, the receiver would take
over the assets and operation of the uninsured bank, take action to
realize on debts owed to the uninsured bank, sell the property of the
bank, and liquidate the assets of the uninsured bank for payment of
claims against the receivership. Proposed Sec. 51.7(a)(1)-(5) lists
some of the major powers and duties for the receiver set out in 12
U.S.C. 192 and clarified by the courts, including taking possession of
the books and records of the bank, collecting on debts and claims owed
to the bank, selling or compromising bad or doubtful debts (with court
approval), and selling the bank's real and personal property (also with
court approval).
Proposed Sec. 51.7(b) provides for the receiver to close the
uninsured bank's fiduciary and custodial appointments, or transfer such
accounts to a successor fiduciary or custodian under 12 CFR 9.16 or
other applicable Federal law. The uninsured banks currently in
existence focus on fiduciary and custodial services, so this function
of the receiver would be of primary importance. This provision
recognizes that the receiver's power to wind up the affairs of the
uninsured bank in receivership, acting with court approval to make
disposition of bank assets, should properly encompass the power to
transfer fiduciary or custodial appointments and any associated assets
in appropriate circumstances.
Transfer of fiduciary appointments may occur under the terms of the
instrument creating the relationship, if it provides for transfer, or
under a fiduciary transfer statute, if one is applicable. The OCC
believes there are strong public policy interests in endeavoring to
replace fiduciaries and custodians expeditiously, without an
interruption in service to their customers, if transfer can be arranged
to a qualified successor, maintaining the same duties and standards of
care with respect to the customers that previously pertained to their
accounts at the uninsured bank in receivership. The alternative, given
that the uninsured bank must be wound down and cannot provide services
in the future, is to stop managing and reinvesting the customer's
assets, stop responding to directions to transfer or receive assets in
custody, close the accounts, and seek instructions from the account
holders or the courts regarding return of associated assets. For
institutional customers, this is likely to cause significant
interruption of the intricate machinery of their financial operations.
For individuals, it can potentially result in loss of asset value in
adverse markets, or loss of income due to foregone reinvestments.
Across the United States, there are disparate and often conflicting
legal rules restricting or conditioning transfers of an appointment of
a fiduciary for a beneficiary residing within the state. Depending on
the geographic area across which the uninsured bank has established
fiduciary relationships with its customers, and the standardization of
its fiduciary account agreements or appointing instruments, it may be
practicable for the receiver to transition an uninsured bank's
fiduciary and custody accounts to a qualified successor through the
mechanisms provided by applicable local law. On the other hand, if
faced with dispersed customers, diverse account agreements or
appointments of different vintage, or even the absence of an applicable
law of transfer for customers in certain states, reliance on these
methods may be so cumbersome as to effectively prevent accomplishment
of the transfers in a timely way.
In order to address these potential problems, the OCC, relying on
the support of existing case law, is including language in the proposed
rule to make it clear that the uninsured bank receiver's power under 12
U.S.C. 192 to sell, with court approval, the real and personal property
of the bank includes the power to transfer the bank's fiduciary
accounts and related assets, subject to the approval of the court
exercising jurisdiction over the receiver's efforts to transfer the
bank's assets. The proposed rule is consistent with case law
recognizing that a receiver for a national bank may properly arrange
asset purchase and liability assumption transactions to move the
business of a failed bank to a successor on an integrated basis, as
part of the power to transfer assets, as well as analogous case law
concerning the transfer of fiduciary and custodial assets by the FDIC,
acting as receiver of failed insured depository institutions.\35\
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\35\ See NCNB Texas National Bank v. Cowden, 895 F.2d 1488 (5th
Cir. 1990) (holding that the FDIC, as receiver of insolvent bank,
had authority to transfer fiduciary appointments to bridge bank
prior to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989).
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Proposed Sec. 51.7(c) incorporates, in general terms, the powers,
duties, and responsibilities of receivers for national banks under the
NBA and under judicial precedents determining the authorities and
responsibilities of receivers for national banks. Examples of these
powers include: (1) The authority to repudiate certain contracts,
including: (a) Purely executory contracts, upon

[[Page 62842]]

determining that the contracts would be unduly burdensome or
unprofitable for the receivership estate,\36\ (b) contracts that
involve fraud or misrepresentation,\37\ and (c) in limited cases, non-
executory contracts that are contrary to public policy; \38\ (2) the
authority to recover fraudulent transfers; \39\ and (3) the authority
to enforce collection of notes from debtors and collateral, regardless
of the existence of side arrangements that would otherwise defeat the
collectability of such notes.\40\
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\36\ Bank One Texas v. Prudential Life Ins. Co., 878 F. Supp.
943, 964-66 (N.D. Tex. 1995).
\37\ A. Corbin, Corbin on Contracts Sec. 228 at 320 (1952)
(addressing contracts voidable for fraud, duress, or mistake).
\38\ Cf. Fidelity Deposit Co. of Md. v. Conner, 973 F.2d 1236,
1241 (5th Cir. 1992).
\39\ See Peters v. Bain, 133 U.S. 670 (1890) (applying state
substantive law to determine whether to void a transfer); Rogers v.
Marchant, 91 F.2d 660, 663 (4th Cir. 1937).
\40\ D'Oench, Duhme & Co., Inc. v. FDIC, 315 U.S. 447, 458
(1942). A. Corbin, Corbin on Contracts, Sec. 228 at 320 (1952)
(addressing contracts voidable for fraud duress or mistake).
---------------------------------------------------------------------------

Proposed Sec. 51.7(d) requires the receiver to make periodic
reports to the OCC concerning the status and proceedings of the
receivership.
Proposed Sec. 51.8 contains provisions regarding the payment of
dividends on claims against the uninsured bank and the distribution of
any remaining proceeds to shareholders. This section provides that,
after administrative expenses of the receivership have been paid, the
OCC would make ratable dividends from available receivership funds
based on the priority of claims in proposed Sec. 51.5, for claims that
have been proved to the OCC's satisfaction or adjudicated in a court of
competent jurisdiction, as provided in 12 U.S.C. 194. The OCC would
make payment of dividends, if any, periodically, at the discretion of
the OCC, as the receiver liquidates the assets of the uninsured bank.
The proposed rule's inclusion of the ``ratable dividend''
requirement is designed to incorporate the associated standards about
the proper application of this statutory directive, which the judiciary
has articulated over the years. The ratable dividend requirement
directs the OCC to make distributions on OCC-approved claims and
judicial awards on an equal footing, determining the amount of each
creditor's claim as it stands at the point of insolvency. As one
example, a court's award of interest on an unpaid debt to the date of a
judgment rendered in the plaintiff's favor after the receiver was
appointed does not increase the amount of the plaintiff's claim for
purposes of making ratable dividends. As another example, the ratable
dividend requirement generally restricts claims against the bank
receivership for debts that were not due and owing at the appointment
of the receiver, and arose for the first time as a consequence of the
appointment or a post-appointment event.
The OCC requests comment on alternatives to the proposed rule's
approach to distributing dividends, under which the OCC would exercise
its discretion under section 194 to determine the timing of the
distributions on established claims. One alternative would be to
refrain from paying any dividends until all claims have been submitted
and validated, with final allowed claim amounts established. This
approach presents the possibility that proven claims may be delayed for
a significant amount of time pending more protracted resolution of
other claims. For example, if there is ongoing litigation against the
bank regarding a claim, this waiting period rule would mean no
dividends would be made to any claimants, even those with well-
established claims, until after the litigation is finally resolved.
Another option would be to allow ongoing dividends on proven
claims, subject to the receiver's retaining a percentage of the funds
on hand at the time of the distribution as a pool of dividends for
catch-up distributions to a successful plaintiff later. The OCC
believes it would be appropriate, under such an approach, for the rule
to incorporate a mechanism to balance the interests of established
claimants in current payment against the interests in future relief to
others asserting more protracted claims. The OCC also has an interest
in being able to seek termination of a receivership after an
appropriate period, in light of the assets that are realistically
available, the prospects of success by plaintiffs asserting additional
claims, and similar factors. Accordingly, the rule might commit the OCC
to reserve a minimum of 12 percent of funds on hand at the time of
distribution during the first year a distribution is made, and reduce
this required minimum reserve to 8 percent 12 months later, 4 percent
after the next 12 months, and eliminate the reserve requirement beyond
that.
Question 6. The OCC invites comment on these alternatives for
making ratable distributions in accordance with section 194.
Proposed Sec. 51.8(a)(2) recognizes the basic legal premise under
the NBA receivership provisions and judicial interpretations thereof
that any dividend payments to creditors and other claimants of an
uninsured bank will be made solely from receivership funds, if any,
paid to the OCC by the receiver after payment of the expenses of the
receiver. This provision is also consistent with the established
dichotomy of the OCC's supervisory and receivership capacities in the
NBA, as discussed earlier.
Proposed Sec. 51.8(b) similarly recognizes that assets held by an
uninsured bank in a fiduciary or custodial capacity, as designated on
the bank's books and records, are not part of the bank's general assets
and liabilities held in connection with its other business, and will
not be considered a source for payment for unrelated claims of
creditors and other claimants. This provision is intended to make clear
that the receiver will segregate identified fiduciary and custodial
assets and either transfer those assets to other fiduciaries or
custodians as described in connection with proposed Sec. 51.7(b), or
close the accounts and endeavor to make the associated assets available
to the accountholders or their representatives through other means.
Proposed Sec. 51.8(d) provides that, after all administrative
expenses and claims have been paid in full, any remaining proceeds
would be paid to shareholders in proportion to their stock ownership,
also as provided in 12 U.S.C. 194.
Proposed Sec. 51.9 contains provisions for termination of
receiverships in which there are assets remaining after all
administrative expenses and all claims had been paid. This is the
scenario addressed by 12 U.S.C. 197. In such a case, section 197
requires the Comptroller to call a meeting of the shareholders of the
bank at which the shareholders would decide whether to continue
oversight by the Comptroller, or whether to end the receivership and
appoint a liquidating agent to continue the liquidation of the
remaining assets, under the direction of the board of directors and
shareholders, as in a liquidation that had commenced under 12 U.S.C.
181.
There may be other circumstances under which termination would take
place, such as when there are no receivership assets remaining after
completion of receivership activities. Under this scenario, the
receiver for an uninsured bank has liquidated all of the bank's assets,
closed or transferred all fiduciary accounts to a successor fiduciary,
paid all administrative expenses, and either paid creditor claims in
full and distributed the remaining proceeds to shareholders, as
provided in Sec. 51.8(c), or made ratable dividends of all remaining
proceeds to

[[Page 62843]]

creditors as provided in Sec. 51.8(a), but no additional assets remain
in the estate. Under these circumstances, the provisions in 12 U.S.C.
197 for termination would not apply.
Question 7. The OCC requests comment on whether the rule should
provide termination procedures for receiverships that are outside the
circumstances addressed in 12 U.S.C. 197.

V. Regulatory Analysis

A. Paperwork Reduction Act

Under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et
seq.), the OCC may not conduct or sponsor, and, notwithstanding any
other provision of law, a person is not required to respond to, an
information collection unless the information collection displays a
valid Office of Management and Budget (OMB) control number. The
proposed rule contains no information collection requirements under the
PRA.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
generally requires that, in connection with a rulemaking, an agency
prepare and make available for public comment a regulatory flexibility
analysis that describes the impact of the rule on small entities.
However, the regulatory flexibility analysis otherwise required under
the RFA is not required if an agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities (defined in regulations promulgated by the Small Business
Administration (SBA) to include commercial banks and savings
institutions, and trust companies, with assets of $550 million or less
and $38.5 million or less, respectively) and publishes its
certification and a brief explanatory statement in the Federal Register
together with the rule.
The OCC currently supervises approximately 1,032 small entities.
The scope of the proposed rule extends to uninsured banks. The maximum
number of OCC-supervised small uninsured banks that could be subject to
the receivership framework described in the proposal is approximately
18.\41\ Accordingly, the OCC certifies that the proposed rule will not
have a significant economic impact on a substantial number of small
entities.
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\41\ Consistent with the General Principles of Affiliation 13
CFR 121.103(a), the OCC counts the assets of affiliated financial
institutions when determining if we should classify an institution
we supervise as a small entity. We used December 31, 2015, 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. SBA's Table of Size Standards.
---------------------------------------------------------------------------

OCC Unfunded Mandates Reform Act of 1995 Determination
The OCC has analyzed the proposed rule under the factors in the
Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532). 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 (adjusted annually for inflation). As
detailed in the SUPPLEMENTARY INFORMATION, the OCC currently supervises
52 uninsured banks, all of which are uninsured trust banks, and has not
appointed a receiver for an uninsured bank since 1933. Unlike
commercial and consumer banks and savings associations, which generally
face credit and liquidity risks, national trust banks primarily face
operational, reputational, and strategic risks. While any of these
risks could result in the precipitous failure of a bank or savings
association, from a historical perspective, trust banks have been more
likely to decline into a weakened condition, allowing the OCC and the
institution the time needed to find other solutions for rehabilitating
the institution or to successfully resolve the institution without the
need to appoint a receiver. Given that we believe the OCC is unlikely
to place an uninsured trust bank into receivership, the OCC concludes
that the proposed rule will not result in an expenditure of $100
million or more by state, local, and tribal governments, or by the
private sector, in any one year.

List of Subjects in 12 CFR Part 51

Administrative practice and procedure, Banks, Banking, National
banks, Procedural rules, Receiverships, Authority, and Issuance.

0
For the reasons set forth in the preamble and under the authority of 12
U.S.C. 16, 93a, 191-200, 481, 482, 1831c, and 1867 the Office of the
Comptroller of the Currency proposes to add a new part 51 to chapter I
of title 12, Code of Federal Regulations as follows:

PART 51--RECEIVERSHIPS FOR UNINSURED NATIONAL BANKS

Sec.
51.1 Purpose and scope.
51.2 Appointment of receiver.
51.3 Notice of appointment of receiver.
51.4 Claims.
51.5 Order of priorities.
51.6 Administrative expenses of receiver.
51.7 Powers and duties of receiver; disposition of fiduciary and
custodial assets.
51.8 Payment of claims and dividends to shareholders.
51.9 Termination of receivership.

Authority: 12 U.S.C. 16, 93a, 191-200, 481, 482, 1831c, and
1867.

Sec. 51.1 Purpose and scope.

(a) Purpose. This part sets out procedures for receiverships of
national banks conducted by the Office of the Comptroller of the
Currency (OCC) under the receivership provisions of the National Bank
Act (NBA). These receivership provisions apply to national banks that
are not insured by the Federal Deposit Insurance Corporation (FDIC).
(b) Scope. This part applies to the appointment of a receiver for
uninsured national banks (uninsured banks) and the operation of a
receivership after appointment of a receiver for an uninsured bank
under 12 U.S.C. 191.\1\
---------------------------------------------------------------------------

\1\ This part does not apply to receiverships for uninsured
Federal branches or uninsured Federal agencies.
---------------------------------------------------------------------------

Sec. 51.2 Appointment of receiver.

(a) In general. The Comptroller of the Currency (Comptroller) may
appoint any person, including the OCC or another government agency, as
receiver for an uninsured bank. The receiver performs its duties under
the direction of the Comptroller and serves at the will of the
Comptroller. The Comptroller may require the receiver to post a bond or
other security. The receiver, with the approval of the Comptroller, may
employ such staff and enter into contracts for professional services as
are necessary to carry out the receivership.
(b) Grounds for appointment. The Comptroller may appoint a receiver
for an uninsured bank based on any of the grounds specified in 12
U.S.C. 191(a).
(c) Judicial review. If the Comptroller appoints a receiver for an
uninsured bank, the bank may seek judicial review of the appointment as
provided in 12 U.S.C. 191(b).

Sec. 51.3 Notice of appointment of receiver.

Upon appointment of a receiver for an uninsured bank, the OCC will
provide notice to the public of the receivership, including by
publication in a newspaper of general circulation for three consecutive
months. The notice of the receivership will provide instructions for
creditors and other claimants seeking to submit claims with the
receiver for the uninsured bank.

[[Page 62844]]

Sec. 51.4 Claims.

(a) Submission of claims for consideration by the OCC. (1) Persons
who have claims against the receivership for an uninsured bank may
present such claims, along with supporting documentation, for
consideration by the OCC. The OCC will determine the validity and
approve the amounts of such claims.
(2) The OCC will establish a date by which any person seeking to
present a claim against the uninsured bank for consideration by the OCC
must present their claim for determination. The deadline for filing
such claims will not be less than 30 days after the end of the three-
month notice period in Sec. 51.3.
(3) The OCC will allow any claim against the uninsured bank
received on or before the deadline for presenting claims if such claim
is established to the OCC's satisfaction by the information on the
uninsured bank's books and records or otherwise submitted. The OCC may
disallow any portion of any claim by a creditor or claim of a security,
preference, set-off, or priority which is not established to the
satisfaction of the OCC.
(b) Submission of claims to a court. Persons with claims against an
uninsured bank in receivership may present their claims to a court of
competent jurisdiction for adjudication. Such persons must submit a
copy of any final judgment received from the court to the OCC, to
participate in ratable dividends along with other proved claims.
(c) Right of set-off. If a person with a claim against an uninsured
bank in receivership also has an obligation owed to the bank, the claim
and obligation will be set off against each other and only the net
balance remaining after set-off shall be considered as a claim,
provided such set-off is otherwise legally valid.

Sec. 51.5 Order of priorities.

The OCC will pay receivership expenses and proved claims against
the uninsured bank in receivership in the following order of priority:
(a) Administrative expenses of the receiver;
(b) Unsecured creditors of the uninsured bank, including secured
creditors to the extent their claim exceeds their valid and enforceable
security interest;
(c) Creditors of the uninsured bank, if any, whose claims are
subordinated to general creditor claims; and
(d) Shareholders of the uninsured bank.

Sec. 51.6 Administrative expenses of receiver.

(a) Priority of administrative expenses. All administrative
expenses of the receiver for an uninsured bank shall be paid out of the
assets of the bank in receivership before payment of claims against the
receivership.
(b) Scope of administrative expenses. Administrative expenses of
the receiver for an uninsured bank include those expenses incurred by
the receiver in maintaining banking operations during the receivership,
to preserve assets of the uninsured bank, while liquidating or
otherwise resolving the affairs of the uninsured bank. Such expenses
include pre-receivership and post-receivership obligations that the
receiver determines are necessary and appropriate to facilitate the
orderly liquidation or other resolution of the uninsured bank in
receivership.
(c) Types of administrative expenses. Administrative expenses for
the receiver of an uninsured bank include:
(1) Salaries, costs, and other expenses of the receiver and its
staff, and costs of contracts entered into by the receiver for
professional services relating to performing receivership duties; and
(2) Expenses necessary for the operation of the uninsured bank,
including wages and salaries of employees, expenses for professional
services, contractual rent pursuant to an existing lease or rental
agreement, and payments to third-party or affiliated service providers,
that in the opinion of the receiver are of benefit to the receivership,
until the date the receiver repudiates, terminates, cancels, or
otherwise discontinues the applicable contract.

Sec. 51.7 Powers and duties of receiver; disposition of fiduciary and
custodial accounts.

(a) Marshalling of assets. In resolving the affairs of an uninsured
bank in receivership, the receiver:
(1) Takes possession of the books, records and other property and
assets of the uninsured bank, including the value of collateral pledged
by the uninsured bank to the extent it exceeds valid and enforceable
security interests of a claimant;
(2) Collects all debts, dues and claims belonging to the uninsured
bank, including claims remaining after set-off;
(3) Sells or compromises all bad or doubtful debts, subject to
approval by a court of competent jurisdiction;
(4) Sells the real and personal property of the uninsured bank,
subject to approval by a court of competent jurisdiction, on such terms
as the court shall direct; and
(5) Deposits all receivership funds collected from the liquidation
of the uninsured bank in an account designated by the OCC.
(b) Disposition of fiduciary and custodial accounts. The receiver
for an uninsured bank closes the bank's fiduciary and custodial
appointments and accounts or transfers some or all of such accounts to
successor fiduciaries and custodians, in accordance with 12 CFR 9.16,
and other applicable Federal law.
(c) Other powers. The receiver for an uninsured bank may exercise
other rights, privileges, and powers authorized for receivers of
national banks under the NBA and the common law of receiverships as
applied by the courts to receiverships of national banks conducted
under the NBA.
(d) Reports to OCC. The receiver for an uninsured bank shall make
periodic reports to the OCC on the status and proceedings of the
receivership.
(e) Receiver subject to removal; modification of fees. (1) The
Comptroller may remove and replace the receiver for an uninsured bank
if, in the Comptroller's discretion, the receiver is not conducting the
receivership in accordance with applicable Federal laws or regulations
or fails to comply with decisions of the Comptroller with respect to
the conduct of the receivership or claims against the receivership.
(2) The Comptroller may reduce the fees of the receiver for an
uninsured bank if, in the Comptroller's discretion, the Comptroller
finds the performance of the receiver to be deficient, or the fees of
the receiver to be excessive, unreasonable, or beyond the scope of the
work assigned to the receiver.

Sec. 51.8 Payment of claims and dividends to shareholders.

(a) Claims. (1) After the administrative expenses of the
receivership have been paid, the OCC shall make ratable dividends from
time to time of available receivership funds according to the priority
described in Sec. 51.5, based on the claims that have been proved to
the OCC's satisfaction or adjudicated in a court of competent
jurisdiction.
(2) Dividend payments to creditors and other claimants of an
uninsured bank will be made solely from receivership funds, if any,
paid to the OCC by the receiver after payment of the expenses of the
receiver.
(b) Fiduciary and custodial assets. Assets held by an uninsured
bank in a fiduciary or custodial capacity, as designated on the bank's
books and records, will not be considered as part of the bank's general
assets and

[[Page 62845]]

liabilities held in connection with its other business, and will not be
considered a source for payment of unrelated claims of creditors and
other claimants.
(c) Timing of dividends. The payment of dividends, if any, under
paragraph (a) of this section, on proved or adjudicated claims will be
made periodically, at the discretion of the OCC, as the receiver
liquidates the assets of the uninsured bank.
(d) Distribution to shareholders. After all administrative expenses
of the receiver and proved claims of creditors of the uninsured bank
have been paid in full, to the extent there are receivership assets to
make such payments, any remaining proceeds shall be paid to the
shareholders, or their legal representatives, in proportion to their
stock ownership.

Sec. 51.9 Termination of receivership.

If there are assets remaining after full payment of the expenses of
the receiver and all claims of creditors for an uninsured bank and all
fiduciary accounts of the bank have been closed or transferred to a
successor fiduciary and fiduciary powers surrendered, the Comptroller
shall call a meeting of the shareholders of the uninsured bank, as
provided in 12 U.S.C. 197, for the shareholders to decide the manner in
which the liquidation will continue. The liquidation may continue by:
(a) Continuing the receivership of the uninsured bank under the
direction of the Comptroller; or
(b) Ending the receivership and oversight by the Comptroller and
replacing the receiver with a liquidating agent to proceed to liquidate
the remaining assets of the uninsured bank for the benefit of the
shareholders, as set out in 12 U.S.C. 197.

Dated: September 2, 2016.
Thomas J. Curry,
Comptroller of the Currency.
[FR Doc. 2016-21846 Filed 9-12-16; 8:45 am]
BILLING CODE P

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