SUBSIDIARIES OF NATIONAL BANKS.

SEC. 121. SUBSIDIARIES OF NATIONAL BANKS. (a) In General.—Chapter one of title LXII of the Revised Statutes of the United States (12 U.S.C. 21 et seq.) is amended— (1) by redesignating section 5136A as section 5136B; and (2) by inserting after section 5136 (12 U.S.C. 24) the following new section: “SEC. 5136A. FINANCIAL SUBSIDIARIES OF NATIONAL BANKS. “(a) Authorization To Conduct in Subsidiaries Certain Activities That are Financial in Nature.— “(1) In general.—Subject to paragraph (2), a national bank may control a financial subsidiary, or hold an interest in a financial subsidiary. “(2) Conditions and requirements.—A national bank may control a financial subsidiary, or hold an interest in a financial subsidiary, only if— “(A) the financial subsidiary engages only in— “(i) activities that are financial in nature or incidental to a financial activity pursuant to subsection (b); and “(ii) activities that are permitted for national banks to engage in directly (subject to the same terms and conditions that govern the conduct of the activities by a national bank); “(B) the activities engaged in by the financial subsidiary as a principal do not include— “(i) insuring, guaranteeing, or indemnifying against loss, harm, damage, illness, disability, or death (except to the extent permitted under section 302 or 303(c) of the Gramm-Leach-Bliley Act) or providing or issuing annuities the income of which is subject to tax treatment under section 72 of the Internal Revenue Code of 1986; “(ii) real estate development or real estate investment activities, unless otherwise expressly authorized by law; or “(iii) any activity permitted in subparagraph (H) or (I) of section 4(k)(4) of the Bank Holding Company Act of 1956, except activities described in section 4(k)(4)(H) that may be permitted in accordance with section 122 of the Gramm-Leach-Bliley Act;113 STAT. 1374 “(C) the national bank and each depository institution affiliate of the national bank are well capitalized and well managed; “(D) the aggregate consolidated total assets of all financial subsidiaries of the national bank do not exceed the lesser of— “(i) 45 percent of the consolidated total assets of the parent bank; or “(ii) $50,000,000,000; “(E) except as provided in paragraph (4), the national bank meets any applicable rating or other requirement set forth in paragraph (3); and “(F) the national bank has received the approval of the Comptroller of the Currency for the financial subsidiary to engage in such activities, which approval shall be based solely upon the factors set forth in this section. “(3) Rating or comparable requirement.— “(A) In general.—A national bank meets the requirements of this paragraph if— “(i) the bank is 1 of the 50 largest insured banks and has not fewer than 1 issue of outstanding eligible debt that is currently rated within the 3 highest investment grade rating categories by a nationally recognized statistical rating organization; or “(ii) the bank is 1 of the second 50 largest insured banks and meets the criteria set forth in clause (i) or such other criteria as the Secretary of the Treasury and the Board of Governors of the Federal Reserve System may jointly establish by regulation and determine to be comparable to and consistent with the purposes of the rating required in clause (i). “(B) Consolidated total assets.—For purposes of this paragraph, the size of an insured bank shall be determined on the basis of the consolidated total assets of the bank as of the end of each calendar year. “(4) Financial agency subsidiary.—The requirement in paragraph (2)(E) shall not apply with respect to the ownership or control of a financial subsidiary that engages in activities described in subsection (b)(1) solely as agent and not directly or indirectly as principal. “(5) Regulations required.—Before the end of the 270-day period beginning on the date of the enactment of the Gramm-Leach-Bliley Act, the Comptroller of the Currency shall, by regulation, prescribe procedures to implement this section. “(6) Indexed asset limit.—The dollar amount contained in paragraph (2)(D) shall be adjusted according to an indexing mechanism jointly established by regulation by the Secretary of the Treasury and the Board of Governors of the Federal Reserve System. “(7) Coordination with section 4(1)(2) of the bank holding company act of 1956.—Section 4(1)(2) of the Bank Holding Company Act of 1956 applies to a national bank that controls a financial subsidiary in the manner provided in that section. “(b) Activities That Are Financial in Nature.— “(1) Financial activities.—113 STAT. 1375 “(A) In general.—An activity shall be financial in nature or incidental to such financial activity only if— “(i) such activity has been defined to be financial in nature or incidental to a financial activity for bank holding companies pursuant to section 4(k)(4) of the Bank Holding Company Act of 1956; or “(ii) the Secretary of the Treasury determines the activity is financial in nature or incidental to a financial activity in accordance with subparagraph (B). “(B) Coordination between the board and the secretary of the treasury.— “(i) Proposals raised before the secretary of the treasury.— “(I) Consultation.—The Secretary of the Treasury shall notify the Board of, and consult with the Board concerning, any request, proposal, or application under this section for a determination of whether an activity is financial in nature or incidental to a financial activity. “(II) Board view.—The Secretary of the Treasury shall not determine that any activity is financial in nature or incidental to a financial activity under this section if the Board notifies the Secretary in writing, not later than 30 days after the date of receipt of the notice described in subclause (I) (or such longer period as the Secretary determines to be appropriate under the circumstances) that the Board believes that the activity is not financial in nature or incidental to a financial activity or is not otherwise permissible under this section. “(ii) Proposals raised by the board.— “(I) Board recommendation.—The Board may, at any time, recommend in writing that the Secretary of the Treasury find an activity to be financial in nature or incidental to a financial activity for purposes of this section. “(II) Time period for secretarial action.—Not later than 30 days after the date of receipt of a written recommendation from the Board under subclause (I) (or such longer period as the Secretary of the Treasury and the Board determine to be appropriate under the circumstances), the Secretary shall determine whether to initiate a public rulemaking proposing that the subject recommended activity be found to be financial in nature or incidental to a financial activity under this section, and shall notify the Board in writing of the determination of the Secretary and, in the event that the Secretary determines not to seek public comment on the proposal, the reasons for that determination. “(2) Factors to be considered.—In determining whether an activity is financial in nature or incidental to a financial activity, the Secretary shall take into account— “(A) the purposes of this Act and the Gramm-Leach-Bliley Act;113 STAT. 1376 “(B) changes or reasonably expected changes in the marketplace in which banks compete; “(C) changes or reasonably expected changes in the technology for delivering financial services; and “(D) whether such activity is necessary or appropriate to allow a bank and the subsidiaries of a bank to— “(i) compete effectively with any company seeking to provide financial services in the United States; “(ii) efficiently deliver information and services that are financial in nature through the use of technological means, including any application necessary to protect the security or efficacy of systems for the transmission of data or financial transactions; and “(iii) offer customers any available or emerging technological means for using financial services or for the document imaging of data. “(3) Authorization of new financial activities.—The Secretary of the Treasury shall, by regulation or order and in accordance with paragraph (1)(B), define, consistent with the purposes of this Act and the Gramm-Leach-Bliley Act, the following activities as, and the extent to which such activities are, financial in nature or incidental to a financial activity: “(A) Lending, exchanging, transferring, investing for others, or safeguarding financial assets other than money or securities. “(B) Providing any device or other instrumentality for transferring money or other financial assets. “(C) Arranging, effecting, or facilitating financial transactions for the account of third parties. “(c) Capital Deduction.— “(1) Capital deduction required.—In determining compliance with applicable capital standards— “(A) the aggregate amount of the outstanding equity investment, including retained earnings, of a national bank in all financial subsidiaries shall be deducted from the assets and tangible equity of the national bank; and “(B) the assets and liabilities of the financial subsidiaries shall not be consolidated with those of the national bank. “(2) Financial statement disclosure of capital deduction.—Any published financial statement of a national bank that controls a financial subsidiary shall, in addition to providing information prepared in accordance with generally accepted accounting principles, separately present financial information for the bank in the manner provided in paragraph (1). “(d) Safeguards for the Bank.—A national bank that establishes or maintains a financial subsidiary shall assure that— “(1) the procedures of the national bank for identifying and managing financial and operational risks within the national bank and the financial subsidiary adequately protect the national bank from such risks; “(2) the national bank has, for the protection of the bank, reasonable policies and procedures to preserve the separate corporate identity and limited liability of the national bank and the financial subsidiaries of the national bank; and “(3) the national bank is in compliance with this section.113 STAT. 1377 “(e) Provisions Applicable to National Banks That Fail to Continue to Meet Certain Requirements.— “(1) In general.—If a national bank or insured depository institution affiliate does not continue to meet the requirements of subsection (a)(2)(C) or subsection (d), the Comptroller of the Currency shall promptly give notice to the national bank to that effect describing the conditions giving rise to the notice. “(2) Agreement to Correct Conditions—Not later than 45 days after the date of receipt by a national bank of a notice given under paragraph (1) (or such additional period as the Comptroller of the Currency may permit), the national bank shall execute an agreement with the Comptroller of the Currency and any relevant insured depository institution affiliate shall execute an agreement with its appropriate Federal banking agency to comply with the requirements of subsection (a)(2)(C) and subsection (d). “(3) Imposition of Conditions.—Until the conditions described in a notice under paragraph (1) are corrected— “(A) the Comptroller of the Currency may impose such limitations on the conduct or activities of the national bank or any subsidiary of the national bank as the Comptroller of the Currency determines to be appropriate under the circumstances and consistent with the purposes of this section; and “(B) the appropriate Federal banking agency may impose such limitations on the conduct or activities of any relevant insured depository institution affiliate or any subsidiary of the institution as such agency determines to be appropriate under the circumstances and consistent with the purposes of this section. “(4) Failure to correct.—If the conditions described in a notice to a national bank under paragraph (1) are not corrected within 180 days after the date of receipt by the national bank of the notice, the Comptroller of the Currency may require the national bank, under such terms and conditions as may be imposed by the Comptroller and subject to such extension of time as may be granted in the discretion of the Comptroller, to divest control of any financial subsidiary. “(5) Consultation.—In taking any action under this subsection, the Comptroller shall consult with all relevant Federal and State regulatory agencies and authorities. “(f) Failure to Maintain Public Rating or Meet Applicable Criteria.— “(1) In general.—A national bank that does not continue to meet any applicable rating or other requirement of subsection (a)(2)(E) after acquiring or establishing a financial subsidiary shall not, directly or through a subsidiary, purchase or acquire any additional equity capital of any financial subsidiary until the bank meets such requirements. “(2) Equity capital.—For purposes of this subsection, the term ‘equity capital’ includes, in addition to any equity instrument, any debt instrument issued by a financial subsidiary, if the instrument qualifies as capital of the subsidiary under any Federal or State law, regulation, or interpretation applicable to the subsidiary. “(g) Definitions.—For purposes of this section, the following definitions shall apply:113 STAT. 1378 “(1) Affiliate, company, control, and subsidiary.—The terms ‘affiliate’, ‘company’, ‘control’, and ‘subsidiary’ have the meanings given those terms in section 2 of the Bank Holding Company Act of 1956. “(2) Appropriate federal banking agency, depository institution, insured bank, and insured depository institution.—The terms ‘appropriate Federal banking agency’, ‘depository institution’, ‘insured bank’, and ‘insured depository institution’ have the meanings given those terms in section 3 of the Federal Deposit Insurance Act. “(3) Financial subsidiary.—The term ‘financial subsidiary’ means any company that is controlled by 1 or more insured depository institutions other than a subsidiary that— “(A) engages solely in activities that national banks are permitted to engage in directly and are conducted subject to the same terms and conditions that govern the conduct of such activities by national banks; or “(B) a national bank is specifically authorized by the express terms of a Federal statute (other than this section), and not by implication or interpretation, to control, such as by section 25 or 25A of the Federal Reserve Act or the Bank Service Company Act. “(4) Eligible debt.—The term ‘eligible debt’ means unsecured long-term debt that— “(A) is not supported by any form of credit enhancement, including a guarantee or standby letter of credit; and “(B) is not held in whole or in any significant part by any affiliate, officer, director, principal shareholder, or employee of the bank or any other person acting on behalf of or with funds from the bank or an affiliate of the bank. “(5) Well capitalized.—The term ‘well capitalized’ has the meaning given the term in section 38 of the Federal Deposit Insurance Act. “(6) Well managed.—The term ‘well managed’ means— “(A) in the case of a depository institution that has been examined, unless otherwise determined in writing by the appropriate Federal banking agency— “(i) the achievement of a composite rating of 1 or 2 under the Uniform Financial Institutions Rating System (or an equivalent rating under an equivalent rating system) in connection with the most recent examination or subsequent review of the depository institution; and “(ii) at least a rating of 2 for management, if such rating is given; or “(B) in the case of any depository institution that has not been examined, the existence and use of managerial resources that the appropriate Federal banking agency determines are satisfactory.”. (b) Sections 23A and 23B of the Federal Reserve Act.— (1) Limiting the exposure of a bank to a financial subsidiary to the amount of permissible exposure to an affiliate.—Section 23A of the Federal Reserve Act (12 U.S.C. 371c) is amended— (A) by redesignating subsection (e) as subsection (f); and113 STAT. 1379 (B) by inserting after subsection (d), the following new subsection: “(e) Rules Relating to Banks With Financial Subsidiaries.— “(1) Financial subsidiary defined.—For purposes of this section and section 23B, the term ‘financial subsidiary’ means any company that is a subsidiary of a bank that would be a financial subsidiary of a national bank under section 5136A of the Revised Statutes of the United States. “(2) Financial subsidiary treated as an affiliate.—For purposes of applying this section and section 23B, and notwithstanding subsection (b)(2) of this section or section 23B(d)(1), a financial subsidiary of a bank— “(A) shall be deemed to be an affiliate of the bank; and “(B) shall not be deemed to be a subsidiary of the bank. “(3) Exceptions for transactions with financial subsidiaries.— “(A) Exception from limit on covered transactions with any individual financial subsidiary.—Notwithstanding paragraph (2), the restriction contained in subsection (a)(1)(A) shall not apply with respect to covered transactions between a bank and any individual financial subsidiary of the bank. “(B) Exceptions for earnings retained by financial subsidiaries.—Notwithstanding paragraph (2) or subsection (b)(7), a bank’s investment in a financial subsidiary of the bank shall not include retained earnings of the financial subsidiary. “(4) Anti-evasion provision.—For purposes of this section and section 23B— “(A) any purchase of, or investment in, the securities of a financial subsidiary of a bank by an affiliate of the bank shall be considered to be a purchase of or investment in such securities by the bank; and “(B) any extension of credit by an affiliate of a bank to a financial subsidiary of the bank shall be considered to be an extension of credit by the bank to the financial subsidiary if the Board determines that such treatment is necessary or appropriate to prevent evasions of this Act and the Gramm-Leach-Bliley Act.”. (2) Rebuttable presumption of control of portfolio company.—Section 23A(b) of the Federal Reserve Act (12 U.S.C. 371c(b)) is amended by adding at the end the following new paragraph— “(11) Rebuttable presumption of control of portfolio companies.—In addition to paragraph (3), a company or shareholder shall be presumed to control any other company if the company or shareholder, directly or indirectly, or acting through 1 or more other persons, owns or controls 15 percent or more of the equity capital of the other company pursuant to subparagraph (H) or (I) of section 4(k)(4) of the Bank Holding Company Act of 1956 or rules adopted under section 122 of the Gramm-Leach-Bliley Act, if any, unless the company or shareholder provides information acceptable to the Board to rebut this presumption of control".113 STAT. 1380 (3) Rulemaking required concerning derivative transactions and intraday credit.—Section 23A(f) of the Federal Reserve Act (12 U.S.C. 371c(f)) (as so redesignated by paragraph (1)(A) of this subsection) is amended by inserting at the end the following new paragraph: “(3) Rulemaking required concerning derivative transactions and intraday credit.— “(A) In general.—Not later than 18 months after the date of the enactment of the Gramm-Leach-Bliley Act, the Board shall adopt final rules under this section to address as covered transactions credit exposure arising out of derivative transactions between member banks and their affiliates and intraday extensions of credit by member banks to their affiliates. “(B) Effective date.—The effective date of any final rule adopted by the Board pursuant to subparagraph (A) shall be delayed for such period as the Board deems necessary or appropriate to permit banks to conform their activities to the requirements of the final rule without undue hardship.”. (c) Antitying.—Section 106(a) of the Bank Holding Company Act Amendments of 1970 (12 U.S.C. 1971) is amended by adding at the end the following: “For purposes of this section, a financial subsidiary of a national bank engaging in activities pursuant to section 5136A(a) of the Revised Statutes of the United States shall be deemed to be a subsidiary of a bank holding company, and not a subsidiary of a bank”. (d) Safety and Soundness Firewalls for State Banks With Financial Subsidiaries.— (1) Federal Deposit Insurance Act.—The Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.) is amended by inserting after section 45 (as added by section 112(b) of this title) the following new section: “SEC. 46. SAFETY AND SOUNDNESS FIREWALLS APPLICABLE TO FINANCIAL SUBSIDIARIES OF BANKS. “(a) In General.—An insured State bank may control or hold an interest in a subsidiary that engages in activities as principal that would only be permissible for a national bank to conduct through a financial subsidiary if— “(1) the State bank and each insured depository institution affiliate of the State bank are well capitalized (after the capital deduction required by paragraph (2)); “(2) the State bank complies with the capital deduction and financial statement disclosure requirements in section 5136A(c) of the Revised Statutes of the United States; “(3) the State bank complies with the financial and operational safeguards required by section 5136A(d) of the Revised Statutes of the United States; and “(4) the State bank complies with the amendments to sections 23A and 23B of the Federal Reserve Act made by section 121(b) of the Gramm-Leach-Bliley Act. “(b) Preservation of Existing Subsidiaries.—Notwithstanding subsection (a), an insured State bank may retain control of a subsidiary, or retain an interest in a subsidiary, that the State bank lawfully controlled or acquired before the date of the enactment of the Gramm-Leach-Bliley Act, and conduct through 113 STAT. 1381such subsidiary any activities lawfully conducted in such subsidiary as of such date. “(c) Definitions.—For purposes of this section, the following definitions shall apply: “(1) Subsidiary.—The term ‘subsidiary’ means any company that is a subsidiary (as defined in section 3(w)(4)) of 1 or more insured banks. “(2) Financial subsidiary.—The term ‘financial subsidiary’ has the meaning given the term in section 5136A(g) of the Revised Statutes of the United States. “(d) Preservation of Authority.— “(1) Federal deposit insurance act.—No provision of this section shall be construed as superseding the authority of the Federal Deposit Insurance Corporation to review subsidiary activities under section 24. “(2) Federal reserve act.—No provision of this section shall be construed as affecting the applicability of the 20th undesignated paragraph of section 9 of the Federal Reserve Act.”. (2) Federal reserve act.—The 20th undesignated paragraph of section 9 of the Federal Reserve Act (12 U.S.C. 335) is amended by adding at the end the following: “This paragraph shall not apply to any interest held by a State member bank in accordance with section 5136A of the Revised Statutes of the United States and subject to the same conditions and limitations provided in such section.”. (e) Clerical Amendment.—The table of sections for chapter one of title LXII of the Revised Statutes of the United States is amended— (1) by redesignating the item relating to section 5136A as section 5136B; and (2) by inserting after the item relating to section 5136 the following new item: “5136A. Financial subsidiaries of national banks.”.