Rguynn Regulation of Foreign Banks Chapter10 Apr12

Chapter 10
Foreign Banks as U.S. Financial

Holding Companies*
Randall D. Guynn** Luigi L. De Ghenghi*** Margaret E.
Tahyar
10:1 Introduction
10:2 Legal framework
[1] Restrictions on U.S. Nonbanking Powers of FBOs
[2] QFBO Exemptions
[3] Expanded Powers of FHCs
[4] Overlapping Sources of Authority
[5] The Dodd-Frank Act
10:3 Conditions and procedures for becoming an FHC
[1] Conditions
[2] Election Procedures
[3] Capital
[a] Current Requirements for Well-Capitalized Status
[b] The Dodd-Frank Act
[c] Impact of the Collins Amendment on Foreign
Banking Organizations
[4] Management
[5] Comprehensive Consolidated Supervision
[6] Community Reinvestment Act
10:4 Expanded powers of an FHC
[1] Financial Activities
[a] Laundry List
[b] Additional Financial Activities
*The authors express their gratitude to Thomas Clarke, Andrew Fei,

Cristina Fong, Ashley Harris, Lena Kiely, Alex Kohen, Cristina Regojo, Joerg
Riegel, Reena Sahni, and Alex Young-Anglim, whose eorts have been invalu-
able. Unless otherwise noted, this chapter reects legislative and regulatory
developments as of July 31, 2011.
**Partner, Davis Polk & Wardwell.
***Partner, Davis Polk & Wardwell.
Partner, Davis Polk & Wardwell.
811
U.S. Reg. Foreign Banks & Affiliates
[2] Incidental Activities

[3] Complementary Activities
[4] Exclusivity Requirement
[5] Securities Underwriting and Dealing
[6] Insurance Underwriting
[7] Merchant Banking
[a] Nonnancial or Mixed Financial/Nonnancial
[b] Bona Fide Investment Banking Activity
[c] Portfolio Company Requirement
[d] No Routine Management or Operation
[e] Minority Investments and Veto Rights
[f] Limited Holding Period
[g] Qualied Private Equity Funds
[h] After-the-Fact Notice Requirements
[i] Risk Management, Record-Keeping, and Reporting
[i] Internal Risk Management Requirements
[ii] Record-Keeping Requirements
[iii] Reporting Requirements
[iv] Disclosure of Merchant-Banking Investment
Activities
[v] Institutions Lending to or Engaging in Other
Transactions with Portfolio Companies
[vi] Private Equity and Other Funds
[vii] Federal Reserve Review of Risk Management
Policies
[j] Enhanced Capital Requirements
[k] Cross-Marketing Restrictions
[8] Insurance Company Portfolio Investments
[b] Ordinary Course Under State Law
[f] After-the-Fact Notice Requirements
[g] Risk Management, Record-Keeping, and Reporting
[h] Enhanced Capital Requirements
[i] Cross-Marketing Restrictions
[9] Commodities
[a] Generally
[b] Grandfathered Commodities Activities
[10] Hedge Funds
[11] Real Estate
812
U.S. Financial Holding Companies 10:1
10:5 Streamlined notice and approval procedures

[1] General Rule: No Prior Application or Notice
[2] Exceptions to the No Prior Application or Notice
Requirement
[3] Post-transaction Notices
[4] Hart-Scott-Rodino Act
10:6 Potential adverse consequences
[1] Additional Costs
[2] New Quarterly Reports
[3] New Self-Reporting Obligations
[4] Potential Loss of FHC Powers
[5] Limit Certain Options
[6] Sections 23A and 23B of the Federal Reserve Act
[7] Loss of Grandfathered Securities Aliates
10:7 Failure to maintain FHC conditions
[1] 4(m) Letter
[2] Restrictions During Cure Period
[3] Failure to Correct
[4] CRA Maintenance Requirement
10:8 Volcker Rule
[1] General
[2] Prohibition on Proprietary Trading
[3] Prohibition on Certain Relationships with Hedge Funds
and Private Equity Funds
[4] Limitations on Certain Transactions with Sponsored,
Advised, Managed, or Organized and Oered Hedge
Funds and Private Equity Funds
[5] Application to FBOs and Extraterritorial Application
[6] Additional Limitations
[7] Conformance Period
10:9 Swaps pushout rule
10:10 Conclusion
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10:1 Introduction
This chapter discusses the expanded powers that a foreign
bank or its parent (foreign banking organization or FBO) may
exercise in the United States if it successfully elects to be treated
813
10:1 U.S. Reg. Foreign Banks & Affiliates
as a U.S. nancial holding company (FHC). We rst describe the

restrictions imposed by the Bank Holding Company Act of 1956
(BHC Act) on an FBO's power to engage in nonbanking activities
or make nonbanking investments in the United States if it owns
or controls a U.S. bank or otherwise has or acquires a U.S. com-
mercial banking presence1 but does not qualify for or elect to be
treated as an FHC. We then summarize the expanded powers
that an FBO may exercise if it qualies and elects to be treated
as an FHC under the BHC Act. We next set forth the conditions
and procedures for becoming an FHC including the minimum
capital requirements that FHCs must meet. We then elaborate
on an FHC's expanded powers, focusing on securities underwrit-
ing and dealing, insurance underwriting, merchant banking, in-
surance company portfolio investments, commodities, hedge
funds, and real estate powers. We then discuss the streamlined
notice and approval procedures available to FHCs, the conse-
quences of becoming an FHC, and the consequences of failing to
maintain the FHC conditions. Finally, we discuss certain provi-
sions of the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 (the Dodd-Frank Act) that aect the condi-
tions for qualifying as an FHC or that impose limits on the
expanded activities of an FHC, including the new capital require-
ments, the Volcker Rule, the swaps pushout rule, and amend-
ments to Section 23A of the Federal Reserve Act (FRA).2
10:2 Legal framework

[1] Restrictions on U.S. Nonbanking Powers of FBOs
The BHC Act generally prohibits both a domestic bank holding
company (BHC) and an FBO that controls a U.S. bank or
otherwise has a U.S. commercial banking presence from owning
or controlling any company other than a U.S. bank or from engag-
[Section 10:1]
1
We refer to any foreign bank with a branch, agency, or commercial lend-
ing company in the United States as a foreign bank with a U.S. commercial
banking presence. Such a foreign bank and any company that controls such a
foreign bank is subject to the BHC Act as if it were a BHC under section 8(a) of
the International Banking Act of 1978 (IBA), 12 U.S.C.A. 3106(a).
2
Dodd-Frank Act, Pub. L. No. 111-203, 171, 608, 619, 716 (2010) (to be
codied at 12 U.S.C.A. 5371 (capital requirements), 1851 (the Volcker Rule),
15 U.S.C.A. 8305 (the swaps pushout rule), amending 12 U.S.C.A. 371c
(Section 23A of the FRA)). For a discussion of the new capital requirements, see
10:3[3]. For a discussion of the amendments to Section 23A, see 10:6[6]. For
a discussion of the Volcker Rule, see 10:8. For a discussion of the swaps
pushout rule, see 10:9.
814
ing in, or directly or indirectly owning or controlling any company

engaged in, any activities that are not so closely related to bank-
ing as to be a proper incident thereto.3 These restrictions on the
nonbanking activities and investments of an FBO reect the
traditional U.S. policy of maintaining an appropriate separation
between banking and commerce.4 They are implemented by the
Board of Governors of the Federal Reserve System (the Federal
[Section 10:2]
3
See 12 U.S.C.A. 1843(a), (c)(8). The BHC Act also contains various nar-
row exemptions from this general prohibition, including exemptions that allow
a BHC (i) to make noncontrolling investments for its own account or an invest-
ment fund controlled by it in up to 4.9% of any class of voting securities; (ii) to
invest in a subsidiary that does not have any oce or direct or indirect subsid-
iary or otherwise engage in any activities directly or indirectly in the United
States other than those that are incidental to its foreign or international busi-
ness; (iii) to hold investments as a duciary; or (iv) to furnish services to its
subsidiaries. 12 U.S.C.A. 1843(c)(1)(C), (c)(4), (c)(6), (c)(7), (c)(13); 12 C.F.R.
225.144.
4
This traditional policy is justied mainly on the grounds that the mixing
of banking and commerce would lead to (i) conicts of interest in the allocation
of credit, (ii) potential increased risks to insured depository institutions and
expansion of the federal deposit insurance safety net, (iii) undue concentration
of economic power and therefore anticompetitive behavior, and (iv) the creation
of conglomerates that would be too complex to manage or supervise because it is
not possible to have the skills necessary to manage or supervise both nancial
and commercial businesses in the same group. See, e.g., Leach, The Mixing of
Commerce and Banking, in Proceedings of The 43rd Annual Conference on
Banking Structure and Competition, Federal Reserve Bank of Chicago, 13 (May
2007) (Proceedings); Fine, U.S. Households and the Mixing of Banking and
Commerce, in Proceedings, 28; Tenhundfeld, Banking and Commerce: 1 + 1 = 0,
in Proceedings, 33; Evano, Preface, in Proceedings. Perhaps the most ardent
preservationist of this traditional policy is former Congressman James A. Leach,
after whom the Gramm-Leach-Bliley Act of 1999 was named, who has described
the mixing of commerce and banking in almost apocalyptic terms. Leach, The
Mixing of Commerce and Banking, in Proceedings, 13, at 13 ([T]here are few
broad principles that could hurriedly be legislated, which could in shorter order
change the fabric of American democracy as well as the economy, than adoption
of a new radical approach to this issue [i.e., mixing commerce and banking].).
Critics argue that (i) relaxing this traditional policy would (A) foster competi-
tion; (B) level the playing eld between banks and other nancial institutions
like securities rms, insurance companies, and hedge funds that are not
prevented from engaging in commerce or having commercial aliates; and (C)
reduce risk by allowing banking organizations to have greater diversication of
assets and income ows; and (ii) (A) the highly competitive nature of the credit
markets would prevent any potential adverse eects from any conicts of inter-
est in the allocation of credit and (B) provisions such as Section 23A and 23B of
the FRA are sucient to insulate insured depository institutions and the federal
safety net from the risks of commercial aliates. See, e.g., Wallison, Thinking
Ahead: Treasury Prepares to Lay Down a Marker for the Future (Part 1),
Financial Services Outlook (American Enterprise Institute for Public Policy
815
Reserve) principally through its Regulation Y.5

[2] QFBO Exemptions
The potential extraterritorial impact of these activities' restric-
tions, however, is limited in part by exemptions for qualifying
foreign banking organizations (QFBOs), which are permitted to
engage in any activity outside the United States and in certain
activities in the United States, which, although more limited
than is customary in many countries, are more varied than those
permitted to domestic bank holding companies.6 These exemp-
tions (the QFBO exemptions) fall into four general categories: (1)
activities, and investments in other companies engaged in activi-
ties, conducted wholly outside the United States; (2) activities,
and investments in other companies engaged in activities,
conducted in the United States that are incidental to interna-
tional or foreign business (such as would be permitted to Edge
Act and agreement corporations established by U.S. banking
organizations for their overseas activities);7 (3) minority noncon-
trolling investments in foreign companies doing a majority of
their business outside the United States and not engaged in se-
curities underwriting or dealing; and (4) controlling investments
in foreign companies doing a majority of their business outside
the United States with any U.S. activities being limited to those
which are nonnancial in nature and related to nonnancial busi-
Research, Oct. 2007); Muckenfuss & Eager, The Separation of Banking and
Commerce Revisited, in Proceedings, 39; Wall, Reichert & Liang, The Last
Frontier: The Integration of Banking and Commerce in the U.S., in Proceed-
ings, 67; Evano, Preface, in Proceedings.
5
12 C.F.R. Pt. 225.
6
The qualifying foreign banking organization concept is found in Subpart
B of the Federal Reserve's Regulation K, 12 C.F.R. Pt. 211, which implements
in part the statutory exemptions from the BHC Acts coverage set forth in
Sections 2(h)(2) and 4(c)(9) of the BHC Act. 12 U.S.C.A. 1841(h)(2) and
1843(c)(9). An analysis of the several statutory exemptions available to foreign
banks is beyond the scope of this chapter. See 9:1 et seq. for a more extended
discussion. To be a qualifying foreign banking organization, more than half of a
foreign institution's worldwide business (excluding the portion of such business
attributable to U.S. banking operations) must be banking, and more than half
of its worldwide banking business must be outside of the United States. 12
C.F.R. 211.23(b). If, as a result of the acquisition of a very large U.S. subsid-
iary bank, more than half of a foreign acquirer's worldwide banking business
was conducted in the United States, the acquirer would be treated as a domes-
tic (rather than a foreign) BHC and could not be a QFBO.
7
See 12 C.F.R. 211.6.
816
nesses conducted abroad.8

[3] Expanded Powers of FHCs
The BHC Act was amended by the Gramm-Leach-Bliley Act of
1999 (the GLB Act) to permit bank holding companies, and FBOs
that are otherwise subject to the BHC Act, to exercise certain
expanded powers if they qualify for and elect to be treated as
nancial holding companies.9 In contrast to ordinary bank hold-
ing companies or FBOs, FHCs are not limited to owning and con-
trolling banks and engaging in, or owning or controlling compa-
nies engaged in, activities that are closely related to banking
or, in the case of QFBOs, certain additional activities and invest-
ments under the QFBO exemptions. Instead, FHCs may also
engage in, or own or control any companies engaged in, any activ-
ity that is nancial in nature, incidental to a nancial activity, or
complementary to a nancial activity.10 This category of nancial
and nancial-related activities includes everything deemed to be
closely related to banking and much more.11 In particular, FHCs
are permitted to make controlling and noncontrolling invest-
ments in companies engaged exclusively in nancial activities or
activities that are incidental to nancial activities including secu-
rities underwriting and dealing, insurance underwriting,
merchant banking, and insurance company portfolio
8
12 C.F.R. 211.23(f). In particular, the Federal Reserve's regulations
permit a foreign-chartered commercial subsidiary of a foreign BHC, indirectly
through a domestic or foreign subsidiary, to engage in a broad range of com-
mercial activities in the United States that are not permitted for a domestic
BHC if it meets certain conditions, including that (1) a majority of its
consolidated assets and revenues are located and derived from outside of the
United States; (2) it does not engage, directly or indirectly, or have more than a
10% voting interest in, a company engaged in the business of underwriting, sell-
ing, or distributing securities in the United States (except to the extent permit-
ted to domestic bank holding companies); and (3) it does not, without prior
Federal Reserve approval, engage in activities in the United States that directly
or through a majority-owned subsidiary consist of banking or nancial opera-
tions (e.g., insurance underwriting and real estate investment and brokerage
activities) or closely related to banking activities covered by Section 4(c)(8) of
the BHC Act. 12 C.F.R. 211.23(f)(5).
9
Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102, 113 Stat. 1338 to
1481 (1999). Although the GLB Act reduced the degree of separation between
banking and commerce, it nevertheless reects the U.S. policy of maintaining
such separation.
10
12 U.S.C.A. 1843(k)(1).
11
12 U.S.C.A. 1843(k)(4), especially (k)(4)(F).
817
investments.12 FHCs are also permitted to engage in activities

determined by the Federal Reserve to be complementary to a
nancial activity, which the Federal Reserve has determined on
an FHC-by-FHC basis to include certain commodities trading
and other activities.13 They are also permitted to make control-
ling and noncontrolling investments in nonnancial and mixed
nancial/nonnancial companies including companies engaged in
owning and managing real estate, subject to certain conditions,
under the merchant banking power.14
These expanded powers, however, will all become subject to the
Volcker Rule and the swaps pushout rule15 when those provisions
become eective, subject to their transition rules. The Volcker
Rule prohibits proprietary trading in certain securities and other
nancial instruments, as well as certain investments and
relationships with hedge funds and private equity funds, subject
to certain exemptions. The swaps pushout rule prohibits FBOs
from engaging in swaps activities in any U.S. branch or agency
that has access to the Federal Reserve's discount window or in a
U.S. insured depository institution aliate. For a more complete
discussion of the limits imposed by the Volcker Rule and the
swaps pushout rule when those provisions become eective, on
the expanded powers of an FHC, see Sections 10:8 and 10:9,
respectively.
As of May 12, 2011, approximately 500 U.S. BHCs, two foreign
holding companies of U.S. banks, and 46 FBOs (approximately
21% of those with a U.S. commercial banking presence) had suc-
cessfully elected to be FHCs.16
The BHC Act includes a grandfathering provision that ex-
12
12 U.S.C.A. 1843(k)(4)(B) (insurance underwriting), (E) (securities
underwriting and dealing), (H) (merchant banking), (I) (insurance company
portfolio investments).
13
See, e.g., The Royal Bank of Scotland, 94 Fed. Res. Bull. C60 (2008)
(certain energy commodities trading as a complement to energy derivatives
trading); WellPoint, Inc., 93 Fed. Res. Bull. C133 (2007) (certain activities are
complementary to the underwriting and selling of health insurance).
14
12 U.S.C.A. 1843(k)(4)(H) (merchant banking).
15
Dodd-Frank Act, Pub. L. No. 111-203, 619 and 716 (2010) (to be codi-
ed at 12 U.S.C.A. 1851 and 15 U.S.C.A. 8305). For further discussion of the
Volcker Rule and the swaps pushout rule, see 10:8 and 10:9, respectively.
16
See Federal Reserve Board, Financial Holding Companies as of May 12,
2011, available at http://www.federalreserve.gov/generalinfo/fhc (last visited
June 6, 2011), listing only the top-tier company in each organization:
Americas: Banco Bradesco, S.A. (Brazil); Banco do Brasil (Brazil); Banco
Itau S.A. (Brazil); Bank of Montreal (Canada); The Bank of Nova Scotia (Can-
ada); Canadian Imperial Bank of Commerce (Canada); National Bank of Can-
818
empted certain companies that became bank holding companies

or FBOs after November 12, 1999, from any of the activities
restrictions contained in the BHC Act with respect to activities
engaged in from November 12, 1999, until November 11, 2009,
or, with the Federal Reserve's prior approval, for up to ve ad-
ditional years if certain conditions are satised.17 It also includes
a separate grandfathering provision that enables certain
companies including FBOs (other than foreign banks) that
become nancial holding companies after November 12, 1999, to
continue to engage in activities related to the trading, sale, or
investment in commodities and commodities-related facilities if
they were lawfully engaged in commodities activities as of
September 30, 1997, and certain other conditions are satised.18
Unlike the former grandfathering provision, the commodities
grandfather provision does not contain a sunset date.
ada (Canada); Royal Bank of Canada (Canada); The Toronto-Dominion Bank

(Canada); and Banco Mercantil del Norte, S.A. (Mexico).
Asia: Mitsubishi UFJ Financial Group, Inc. (Japan); Mizuho Financial
Group (Japan); The Norinchukin Bank (Japan); and ShinHan Financial Group
(South Korea).
Australia: Australia and New Zealand Banking Group Limited, and
National Australia Bank Limited.
Europe: Dexia S.A. (Belgium); KBC Bank NV (Belgium); Barclays PLC
(England); HSBC Holdings PLC (England); Lloyds TSB Group, PLC (England);
BNP Paribas (France); Crdit Agricole S.A. (France); Natixis (France); Socit
Gnrale (France); Allianz SE (Germany); Bayerische Hypo- und Vereinsbank
Aktiengesellschaft (Germany); Commerzbank AG (Germany); Deutsche Bank
AG (Germany); DZ Bank AG (Germany); Eurohypo Aktiengesellschaft (Ger-
many); HSH Nordbank, A.G. (Germany); Landesbank Baden-Wrttemberg (Ger-
many); The Governor and Company of The Bank of Ireland (Ireland); Unicredito
Italiano S.p.A. (Italy); Rabobank Nederland (The Netherlands); DnB NOR ASA
(Norway); Banco Santander Central Hispano, S.A. (Spain); Caja de Ahorros y
Monte de Piedad de Madrid (Spain); Caja Madrid Cibeles, S.A. (Spain); HBOS
plc (Scotland); The Royal Bank of Scotland Group PLC (Scotland); Skandi-
naviska Enskilda Banken AB (Sweden); Credit Suisse Group (Switzerland); and
UBS AG (Switzerland).
Middle East: Bank Hapoalim (Israel). Foreign holding companies of
U.S. banks: Delta Investment Company (Cayman Islands), and SNBNY Hold-
ings Limited (Gibraltar).The 46 FBOs that are FHCs represent approximately
21% of the approximately 214 FBOs that as of December 31, 2010, maintained,
directly or indirectly, a branch, agency, or commercial lending company in the
United States. See Federal Reserve Board, Structure Data for the U.S. Oce of
Foreign Banking Organizations by Country as of December 31, 2010, available
at http://www.federalreserve.gov/releases/iba/201012/bycntry.htm (last visited
June 6, 2011).
17
12 U.S.C.A. 1843(n).
18
12 U.S.C.A. 1843(o).
819
[4] Overlapping Sources of Authority

The expanded powers of an FHC, and the powers of a QFBO
under the QFBO exemptions, include a number of overlapping
sources of authority to engage in the same or similar powers. A
QFBO that elects to be treated as an FHC is permitted to rely on
whichever of these overlapping sources of authority gives it the
broadest powers and is generally permitted to switch sources of
authority if it is in its advantage to do so as its circumstances or
business objectives change.19
For example, Section 4(k)(4)(E) of the BHC Act permits an
FHC to engage in securities underwriting, dealing, and market
making without any geographic or other limitation,20 subject to
the Volcker Rule when that provision becomes eective.21 In
contrast, Section 4(k)(4)(F) and (G) of the BHC Act, which
incorporate by reference the power to engage in any activity that
was determined as of a certain date to be closely related to bank-
ing or usual in connection with banking abroad, only permit se-
curities underwriting and dealing subject to certain revenue,
geographical, or other limitations,22 subject to the Volcker Rule
when that provision becomes eective.23 A QFBO that is an FHC
is permitted to rely on the broadest source of authority for securi-
ties underwriting, dealing, and market making without regard to
the geographic or other limitations in the overlapping, alterna-
tive sources of such authority.
Similarly, an FHC is permitted to make controlling and
noncontrolling investments in nonnancial companies or mixed
nancial/nonnancial companies under Section 4(k)(4)(H) of the
19
See 66 Fed. Reg. 400, 406 (Jan. 3, 2001).
20
12 U.S.C.A. 1843(k)(4)(E).
21
See 10:8.
22
See 12 U.S.C.A. 1843(k)(4)(F) to (G); 12 C.F.R. 211.10(a)(13) to (14)
(geographic limitations), 225.28(b)(8)(i) (limited to government securities); J.P.
Morgan & Co., Incorporated, et al., 75 Fed. Res. Bull. 192, 19597 (1989), a'd
sub nom. Securities Industry Ass'n v. Board of Governors of the Federal Reserve
System, 900 F.2d 360 (D.C. Cir. 1990); Citicorp, et al, 73 Fed. Res. Bull. 473
(1987), a'd sub nom. Securities Industry Ass'n v. Board of Governors of the
Federal Reserve System, 839 F.2d 47 (2d Cir. 1988), cert. denied, 486 U.S. 1059
(1988) as modied by Modications to Section 20 Orders, 75 Fed. Res. Bull. 751
(1989), and 10 Percent Revenue Limit on Bank-Ineligible Activities of Subsid-
iaries of Bank Holding Companies Engaged in Underwriting and Dealing in
Securities, 61 Fed. Reg. 48,953 (Sept. 17, 1996), and Revenue Limit on
Bank-Ineligible Activities of Subsidiaries of Bank Holding Companies Engaged
in Underwriting and Dealing in Securities, 61 Fed. Reg. 68,750 (Dec. 30, 1996)
(revenue limits).
23
See 10:8.
820
BHC Act, subject to the Volcker Rule when that provision

becomes eective,24 and certain other conditions, including a
maximum holding period, restrictions on involvement in the rou-
tine management or operation of portfolio companies, and compli-
ance with certain reporting requirements.25 In contrast, the
QFBO exemptions permit a QFBO to make controlling and
noncontrolling investments in foreign nonnancial companies,
subject to the Volcker Rule when that provision becomes eec-
tive,26 and a dierent set of conditions including that the foreign
portfolio companies do a majority of their business outside the
United States, are not engaged in securities underwriting or
dealing, and, if controlled by the QFBO, have U.S. activities that
are limited to those which are nonnancial in nature and are re-
lated to nonnancial businesses conducted by the QFBO or its af-
liates abroad.27 A QFBO that has elected to be treated as an
FHC may nd it preferable to rely on Section 4(k)(4)(H) of the
BHC Act for most of its investments in U.S. or foreign nonnan-
cial companies or mixed nancial/nonnancial companies because
the reporting requirements are less burdensome28 or because of
the greater leeway to invest in mixed nancial/nonnancial
companies. In contrast, it may nd the QFBO exemptions to be
preferable for certain investments in foreign nonnancial
companies if it wishes to be involved in their routine manage-
ment or operation or to hold them for more than the maximum
holding period permitted by Section 4(k)(4)(H) and its implement-
ing regulations. A QFBO that is an FHC is free to choose the best
source of authority for its particular circumstances and business
objectives or generally to switch sources of authority as circum-
stances or business objectives change.
[5] The Dodd-Frank Act
The Dodd-Frank Act is in the process of making the most sig-
nicant reforms to the U.S. nancial regulatory laws since the
24
See 10:8.
25
See 12 U.S.C.A. 1843(k)(4)(H); 12 C.F.R. Pt. 225, Subpt. J.
26
See 10:8.
27
See 12 C.F.R. 211.23(f)(5).
28
Compare 12 C.F.R. 225.87(b)(4) and Report of Changes in Organizational
Structure, Form FR Y-10 (one-time post-transaction notice for large merchant
banking investments only, showing name of portfolio company and size of invest-
ment) with 12 C.F.R. 211.23(h) and Annual Report of Foreign Banking
Organizations, Form FR Y-7 (annual reporting for all investments, showing
name of portfolio, percentage of portfolio company's assets and revenues attrib-
utable to activities outside the United States, and, in the case of controlling
investments, the types of activities engaged in within the United States).
821
1930s. Among other things, it is in the process of creating a new

systemic risk regulatory regime that will impose enhanced
prudential standards on FBOs that are considered to be systemi-
cally important.29 It is also in the process of imposing mandatory
registration, clearing, trading, and reporting requirements on
certain FBOs engaged in over-the-counter derivatives
transactions. Although the Dodd-Frank Act will aect every FBO
and its aliates whether or not the FBO has a U.S. commercial
banking presence, most of its provisions are not limited to FHCs,
do not have an impact on the conditions for qualifying as an
FHC, and do not impose limits on their expanded activities. Ac-
cordingly, a discussion of the full impact of the Dodd-Frank Act is
beyond the scope of this chapter.30 Instead, this chapter limits its
discussion of the Dodd-Frank Act to the key provisions that aect
the conditions for qualifying as an FHC or that impose limits on
the expanded powers of an FHC including the new capital
requirements, the Volcker Rule, the swaps pushout rule, and
amendments to Section 23A of the FRA.31
10:3 Conditions and procedures for becoming an FHC

[1] Conditions
To qualify as an FHC, an FBO must satisfy the following
conditions:
29
The enhanced prudential standards will apply to all bank holding
companies with total consolidated assets above $50 billion and FBOs with a
U.S. commercial banking presence and total consolidated assets above $50 bil-
lion. It is not clear whether the asset test will be applied to the FBO's worldwide
or U.S.-only assets. The proposed rule for resolution plan requirements for bank
holding companies with total assets of over $50 billion suggests that the test
will be applied to worldwide assets. 76 Fed. Reg. 22,648, 22,648 to 22,662 (Apr.
22, 2011) (proposed FDIC and Federal Reserve rulemaking requiring resolution
plans and credit exposure reports). The enhanced prudential supervision will
also apply to nonbank nancial companies, including FBOs with no U.S. com-
mercial banking presence, that are otherwise designated as systemically
important by the Financial Stability Oversight Council (the FSOC). The
systemic risk section of the Dodd-Frank Act is largely silent on whether its
enhanced prudential standards or prompt corrective action powers are intended
to have an extraterritorial application to the non-U.S. operations of foreign
banks or their aliates.
30
For a discussion of the full potential impact of the Dodd-Frank Act on
FBOs, see Randall Guynn, Mark Plotkin & Ralph Reisner, U.S. Regulation of
Foreign and Domestic Banks: A Users Guide to Regulatory Reform under
Dodd-Frank (2010).
31
See 10:3[3] for a discussion of the new capital requirements, 10:6[6]
for a discussion of the amendments to Section 23A of the FRA, 10:8 for a
discussion of the Volcker Rule, and 10:9 for a discussion of the swaps pushout
rule.
822
E the FBO, if it is or controls a foreign bank with a U.S. com-

mercial banking presence; all U.S. insured and uninsured
depository institutions 32 controlled by the FBO; and all
foreign banks with a U.S. commercial banking presence that
are controlled by the FBO must be and remain well capital-
ized and well managed,33 and, as a general matter, any FBO
that is a foreign bank with a U.S. commercial banking pres-
ence and all foreign banks with a U.S. commercial banking
presence that are controlled by the FBO must be subject to
comprehensive consolidated supervision (CCS) by their
home-country supervisors;34
E it must have led with the Federal Reserve a declaration of
[Section 10:3]
32
The term depository institution is dened as any bank or savings as-
sociation, see 12 U.S.C.A. 1841(n), 1813(c)(1), and includes both insured and
uninsured depository institutions. As a result, any FBO that seeks to become an
FHC must satisfy the well-capitalized requirements with respect to all of its
U.S. depository institution subsidiaries whether insured or not and whether or
not they would be treated as banks for purposes of the BHC Act. This would
include any U.S. thrift subsidiaries and any Utah industrial bank subsidiaries.
See, e.g., MetLife, Inc., 87 Fed. Res. Bull. 268, at 269 n.6 & 270 n.15 (2001)
(stating that, although a certain limited-purpose trust company subsidiary of
the applicant MetLife was not a bank for purposes of the BHCA, it was never-
theless a depository institution under Section 3(c)(1) of the Federal Deposit
Insurance Act (FDI Act), 12 U.S.C.A. 1813(c)(1), and therefore, MetLife in its
election to be an FHC must certify that the trust company is well capitalized
and well managed).
33
12 U.S.C.A. 1843(l)(1)(A) to (B); 12 C.F.R. 225.81(b)(2), 225.90(a)(1)
to (2). Before July 21, 2011, the BHC Act did not require a BHC to be well
capitalized and well managed in order for the BHC to qualify as an FHC. Only
its depository institution subsidiaries were required to satisfy those tests.
Section 606 of the Dodd-Frank Act, however, amended the BHC Act to require
the BHC itself to be well capitalized and well managed in order to qualify as an
FHC. Section 606 applies to an FBO that controls a foreign bank with a U.S.
commercial banking presence because under Section 8(a) of the IBA, such an
FBO is subject to the BHC Act as if it were a BHC. See 12 U.S.C.A. 3106(a).
Section 606 became eective on July 21, 2011. The Federal Reserve has not yet
proposed any regulations explaining how the amendments made by Section 606
will apply to FBOs.
34
12 U.S.C.A. 1843(l)(3); 12 C.F.R. 225.92(e). If a foreign bank is not
subject to CCS, the Federal Reserve will not consider the foreign bank to be
well capitalized and well managed for purposes of the BHC Act unless the
Federal Reserve nds that the home country has made signicant progress in
establishing arrangements for CCS, and the foreign bank is in strong nancial
condition as demonstrated, for example, by capital levels that signicantly
exceed the minimum levels that are required for a well capitalized determina-
tion and strong asset quality. 12 C.F.R. 225.92(e)(2).
823
election to be an FHC and a certication that it meets the

well-capitalized and well-managed conditions;35 and
E all of its U.S. insured depository institution subsidiaries36
must have achieved a rating of at least satisfactory under
the Community Reinvestment Act of 197737 (the CRA) in the
most recent examination of such institutions.38
The BHC Acts broad denition of control39 can lead to surpris-
ing results in the application of the well-capitalized and well-
managed requirements to minority-owned banks. For instance, it
is possible for a foreign bank to be deemed to control another
foreign bank for purposes of the BHC Act based on a stake in as
low as 10% of the voting equity of the target bank yet have no
actual control over the foreign bank. In its release accompanying
its nal FHC rules, the Federal Reserve stated that, in limited
situations involving strategic minority investments, some relief
from the well-capitalized and well-managed requirements may be
35
12 U.S.C.A. 1843(l)(1)(C); 12 C.F.R. 225.81(b)(3), 225.90(a)(2). The
regulations require the FBO to make an eective election to be treated as an
FHC.
36
An insured depository institution is a depository institution, the deposits
of which are insured by the Federal Deposit Insurance Corporation (FDIC). It
includes a foreign bank with an FDIC-insured U.S. branch that is, or is con-
trolled by, an FBO. 12 U.S.C.A. 1813(c)(2), (h); 12 C.F.R. 225.2(g).
37
The CRA requires banks to help meet the credit needs of the low- and
moderate-income neighborhoods of the local communities in which such banks
are chartered. A bank's record of meeting community credit needs must be
rated annually by the appropriate federal nancial supervisory agency. See 12
U.S.C.A. 2901 to 2908.
38
12 U.S.C.A. 2903(c)(1); 12 C.F.R. 225.82(c)(1), 225.92(c)(2).
39
The BHC Act deems an investment to be controlling if the investor (i)
acquires or controls 25% or more of any class of voting securities of another
company, (ii) has the power to elect a majority of the board of directors or simi-
lar governing body of the company, or (iii) exercises a controlling inuence over
the management or policies of the company. 12 U.S.C.A. 1841(a)(2). The
Federal Reserve treats the rst two alternatives as essentially conclusive with
almost no exceptions. The last alternative is very exible and highly indetermi-
nate, and its interpretation and application are dependent on all the facts and
circumstances. The Federal Reserve sta will often deem an investor to have a
controlling inuence over another company whenever it has what most people
would consider to be only a signicant inuence over the company. The Federal
Reserve sta generally will not treat an investment in a nonbank company as
controlling unless the investor acquires control of at least 15% of any class of
voting securities or one-third of the total equity including voting securities, of
the target, provided that no other control factors are present. 12 C.F.R.
225.144. The Federal Reserve sta generally treats total equity as including
voting securities, nonvoting securities, and subordinated debt. For a more
detailed discussion of the Federal Reserve sta's application of the controlling
inuence test, see 6:1 et seq.
824
justied but only in limited circumstances where the foreign

bank can clearly demonstrate that it has no ability to control the
other foreign bank.40
[2] Election Procedures
The procedures for a foreign bank or any company controlling a
foreign bank to make an FHC election are contained in Sections
225.90 to 225.92 of Regulation Y.41 If a foreign bank or its parent
controls a U.S. bank or BHC or is controlled by a BHC, it must
also comply with the procedures set forth in Sections 225.81 to
225.82 of Regulation Y.42
The procedures for electing to be treated as an FHC are
relatively simple. The company electing to be treated as an FHC
must le a written declaration with the appropriate Federal
Reserve bank43 stating the election, certifying that all the entities
that must meet the well-capitalized and well-managed require-
ments satisfy those requirements (including whether any foreign
bank is subject to CCS), providing certain capital information
and, in the case of an FBO that is a BHC or that has or controls
a foreign bank with an FDIC-insured branch, information about
the CRA compliance record of the applicant's U.S. insured depos-
itory institution subsidiaries and insured branches.44 An election
to be an FHC is automatically eective on the 31st calendar day
after the date that a complete declaration was led with the ap-
propriate Federal Reserve Bank unless the Federal Reserve noti-
es the applicant prior to that time that the election is ineective
40
See 66 Fed. Reg. 400, 411 (Jan. 3, 2001). To date, the Federal Reserve's
statement has not resulted in any such relief being granted. The Federal
Reserve sta has not conceded that there is any room between its traditional in-
terpretation of the controlling inuence test in the BHC Act and the type of
control that must be clearly demonstrated to be absent as a condition to
obtaining the limited relief. As long as the traditional controlling inuence test,
rather than some sort of actual control test, is used for determining when
limited relief is justied, the promise of limited relief is likely to remain
unfullled. See Randall Guynn, Developments in Minority Investments, Annual
Regulatory Examination, Risk Management and Compliance Seminar, Institute
of International Bankers (Nov. 22, 2005).
41
12 C.F.R. 225.90 to 225.92.
42
12 C.F.R. 225.81(c).
43
The appropriate Federal Reserve Bank is determined pursuant to 12
C.F.R. 225.3(b).
44
12 C.F.R. 225.91(a) and (b) and, in the case of an FBO that is or is con-
trolled by a BHC, 12 C.F.R. 225.82(a) to (d).
825
or that the election is eective prior to such 31st day.45 In the

case of an election by a foreign bank or a company owning or con-
trolling a foreign bank, the 30-day period may be extended by the
Federal Reserve with the consent of such foreign bank or such
company.46
The Federal Reserve will nd an election ineective if any of
the entities that must meet the well-capitalized and well-
managed requirements does not meet such requirements.47 The
Federal Reserve will also nd an election ineective if any U.S.
insured depository institution controlled by the FBO or any U.S.
insured branch of any foreign bank that is or is controlled by the
FBO did not receive a rating of at least satisfactory under the
CRA at its most recent examination. 48 Finally, the Federal
Reserve may nd the election ineective if the Federal Reserve
does not have sucient information to determine whether the
FBO or any of its foreign bank subsidiaries making an election
meets the election requirements.49
Because of the dicult issues relating to the well-capitalized
and well-managed requirements that a foreign bank's election to
be an FHC may raise, a foreign bank or its controlling company,
before ling an election to be treated as an FHC, may le a
request for a preclearance review of its qualications to be treated
as an FHC.50 Regulation Y species two cases in which a preclear-
ance process must be initiated.
E A foreign bank whose home country has not adopted risk-
based capital standards consistent with the Basel Capital
Accord (Basel I)51 must obtain a determination from the
Federal Reserve in the preclearance process that the foreign
45
12 C.F.R. 225.92(a)(1), (b) and, in the case of an FBO that is or is con-
trolled by a BHC, 12 C.F.R. 225.82(e).
46
12 C.F.R. 225.92(a)(2).
47
12 C.F.R. 225.92(c)(1), (3) and, in the case of an FBO that is or is con-
trolled by a BHC, 12 C.F.R. 225.82(c)(2).
48
12 C.F.R. 225.82(c)(1), 225.92(c)(2). Special rules apply to the
consideration of the CRA performance of recently acquired U.S. insured deposi-
tory institutions. 12 C.F.R. 225.82(d), 225.92(d).
49
12 C.F.R. 225.92(c)(4).
50
12 C.F.R. 225.91(c).
51
Basel Committee on Banking Supervision (BCBS), International
Convergence of Capital Measurement and Capital Standards (July 1988). In
June 1999, the BCBS announced a proposal for a new, more sophisticated
capital accord. That proposal ultimately led to the adoption of a new capital ac-
cord in June 2006. BCBS, International Convergence of Capital Measurement
and Capital Standards: A Revised Framework (Comprehensive Version June
826
bank's capital is comparable to the capital that would be

required of a U.S. bank owned by an FHC.52
E A foreign bank that has not been found, and that is
chartered in a country where no bank from that country has
been found, by the Federal Reserve to be subject to CCS by
its home-country supervisor must use the preclearance pro-
cess for a determination of its comprehensive supervision on
a consolidated basis. In addition, a foreign bank or a
company controlling a foreign bank may on its own initiate
the preclearance process to have the Federal Reserve review
the qualications that it has to meet for an eective election
to be an FHC.53
E A foreign bank whose home country has adopted risk-based
capital standards consistent with Basel I but that does not
meet the capital standards that would be required of a U.S.
bank owned by an FHC (either because it falls short of the
required capital adequacy ratios under Basel I or because
there is a question about the comparability of the foreign
bank's capital to the capital that would be required of a U.S.
bank owned by an FHC) may obtain a determination from
the Federal Reserve in the preclearance process that the
foreign bank's capital is otherwise comparable to the capital
that would be required of a U.S. bank owned by an FHC.54
E The preclearance process may be used by a foreign bank or
company controlling a foreign bank to request that the
Federal Reserve review any of the other qualications that
must be met to make an eective election of the FHC status.55
In particular, the question of whether the foreign bank is
well managed could be subject to the preclearance process.
For instance, the preclearance process may be used by a
foreign bank that wishes to obtain FHC status but has not
been assigned a combined U.S. banking assessment as part
2006) (Basel II). BCBS, Basel III: A global regulatory framework for more
resilient banks and banking systems (Revised June 2011); BCBS, Basel III:
International framework for liquidity risk measurement, standards and moni-
toring (Dec. 2010). It is not clear whether the Federal Reserve will require an
applicant to use the preclearance process to obtain a capital comparability de-
termination if the foreign bank's home country has replaced its risk-based
capital standards under Basel I with risk-based capital standards under Basel
II or Basel III.
52
12 C.F.R. 225.90(b)(1) to (2).
53
12 C.F.R. 225.91(c).
54
12 C.F.R. 225.90(b)(1)(ii) to (iii), (2).
55
12 C.F.R. 225.91(c).
827
of the regular examination cycle and thus cannot determine

whether it is well managed.56
The preclearance process helps the Federal Reserve to comply
with the rule that FHC elections become eective on the 31st day
after receipt of the election and avoids the need to extend the pe-
riod with the consent of the electing foreign bank or the company
controlling the foreign bank.57 The preclearance process may be
advantageous for a foreign bank because the Federal Reserve
does not make a public announcement of the ling of a request
for a preclearance review, and the records of the Federal Reserve
relating to the preclearance process may be accorded condential
treatment.58
[3] Capital
[a] Current Requirements for Well-Capitalized
Status
An FBO will satisfy the well-capitalized requirement to become
an FHC only if the FBO, if it is or controls a foreign bank with a
U.S. commercial banking presence; all of its U.S. insured and un-
insured depository institution subsidiaries; and all foreign banks
with a U.S. commercial banking presence that are controlled by
it are well capitalized.59 Section 4(l)(3) of the BHC Act60 authorizes
the Federal Reserve to develop capital standards for foreign
56
See 66 Fed. Reg. 400, 409 (Jan. 3, 2001).
57
See 12 C.F.R. 225.92(a)(2).
58
The Federal Reserve's sta takes the position that information relating to
a preclearance process is a matter contained in or related to examination,
operating, or condition reports prepared by or for the use of an agency
responsible for the regulation or supervision of nancial institutions and that
therefore such information need not be made available to the public under the
Freedom of Information Act, 5 U.S.C.A. 552; 12 C.F.R. 261.14(a)(8). It may
still be advisable for an FBO to request condential treatment of its submis-
sions in connection with a preclearance process pursuant to 12 C.F.R. 261.15.
59
12 U.S.C.A. 1843(l)(1)(A) to (B); 12 C.F.R. 225.81(b)(2), 225.90(a)(1)
to (2). Before July 21, 2011, the BHC Act did not require a BHC to be well
capitalized and well managed in order for the BHC to qualify as an FHC. Only
its depository institution subsidiaries were required to satisfy those tests.
Section 606 of the Dodd-Frank Act, however, amended the BHC Act to require
the BHC itself to be well capitalized and well managed in order to qualify as an
FHC. Section 606 applies to an FBO that controls a foreign bank with a U.S.
commercial banking presence because under Section 8(a) of the IBA, such an
FBO is subject to the BHC Act as if it were a BHC. See 12 U.S.C.A. 3106(a).
Section 606 became eective on July 21, 2011. The Federal Reserve has not yet
proposed any regulations explaining how the amendments made by Section 606
will apply to FBOs.
60
Section 4(l)(3) of the BHC Act was not amended by the Dodd-Frank Act.
828
banks with a U.S. commercial banking presence that are compa-

rable to U.S. standards.61 In exercising its authority under this
provision with respect to foreign banks with a U.S. commercial
banking presence, the Federal Reserve has determined that the
well-capitalized requirement should be measured on the basis of
the foreign bank's capital as a whole and not by the separate
capital of any U.S. branch, agency, or commercial lending
company.62
Regulation Y provides two methods63 for determining whether
a foreign bank will be considered well capitalized for purposes of
electing to be treated as an FHC.64
The rst method currently still relies on Basel I,65 which U.S.
bank regulators implemented through the issuance of the general
61
12 U.S.C.A. 1843(l)(3). Comparable does not mean identical but means
adjusted to the special circumstances of the foreign bank.
62
See 12 C.F.R. 225.2(r)(3)(ii).
63
12 C.F.R. 225.2(r)(3)(i), 225.90(b).
64
Under either method, the Federal Reserve's rules prevent it from
considering a foreign bank to be well capitalized unless the foreign bank is ei-
ther subject to CCS or the Federal Reserve has determined that its home
country has made signicant progress in establishing arrangements for CCS
and that the foreign bank is in strong nancial condition. 12 C.F.R.
225.92(e)(2). Strong nancial condition may be demonstrated, for example, by
capital levels that signicantly exceed the minimum levels that are required for
a well-capitalized determination and strong asset quality. 12 C.F.R.
225.92(e)(2), 225.92(e)(2)(ii). Despite the promise of this alternative stan-
dard, the Federal Reserve has not previously approved an FHC election based
on a foreign bank's home-country supervisor making signicant progress to-
ward CCS. The Federal Reserve anticipates that a foreign bank that is not
subject to CCS will be granted FHC status only in rare instances. Bank Holding
Company Supervision Manual, 3903.0. In contrast, the Federal Reserve has
approved several applications by foreign banks to establish branches in the
Unites States based on home-country supervisors actively working toward
CCS. See, e.g., ICICI Bank, 94 Fed. Res. Bull. C26 (2008); Randall Guynn,
Emerging Trends and Key Developments in the Regulation and Supervision of
Branches and Agencies of International Banks and in the Regulation of
International Banks Themselves as Bank Holding Companies and Financial
Holding Companies, Annual Regulatory Examination, Risk Management and
Compliance Seminar, Institute of International Bankers (Oct. 30, 2007).
65
See 12 C.F.R. Pt. 225, Apps. A, E (Federal Reserve); 12 C.F.R. Pt. 3 Apps.
A, B (OCC); 12 C.F.R. Pt. 325 Apps. A, C (FDIC). Both the Federal Reserve and
most bank regulators around the world dene regulatory capital requirements
for banking organizations based on a series of international capital accords
known as the Basel Capital Accords. Basel I, which was adopted in 1988, is a
risk-based capital framework established by the Basel Committee on Banking
Supervision (BCBS) that denes the universe of instruments that will be
recognized as forms of regulatory capital, establishes a fairly rudimentary
system for risk-weighting assets, and establishes certain minimum capital to
829
risk-based capital rules. Under this method, if the home country

of the foreign bank has adopted risk-based capital standards that
are consistent with Basel I, the foreign bank must maintain a
Tier 1 risk-based capital ratio of at least 6% and a total risk-
based capital ratio of at least 10% as calculated on the basis of
home-country standards.66 In addition, the Federal Reserve must
determine that the foreign bank's capital is comparable67 to the
capital required for a U.S. bank that is owned by an FHC.68
The second method permits (1) a foreign bank whose home
risk-weighted assets ratios. See BCBS, International Convergence of Capital

Measurement and Capital Standards: A Revised Framework (July 1988); BCBS,
Amendment to the Capital Accord to Incorporate Market Risks (Jan. 1996, as
modied Sept. 1997). Basel II, which was adopted in 2006, updated the
framework by permitting more calibrated methods for risk weighing assets,
subject to certain regulatory capital oors based on Basel I during a transitional
period from Basel I to Basel II. See International Convergence of Capital
Measurement and Capital Standards: A Revised Framework (Comprehensive
Version, June 2006). Basel III, which was adopted in December 2010, further
updated the framework to reect experience gained from the global nancial
panic of 2008, resulting in more restrictive denitions of regulatory capital,
changes to the risk-weighting methods generally resulting in higher risk
weights, higher minimum capital ratios (including a surcharge for certain
systemically important nancial institutions), and a general mandate to make
capital requirements more countercyclical. Basel III also introduces a new, ad-
ditional capital conservation buer to be used to absorb losses in periods of
nancial and economic stress. Further, subject to a supervisory monitoring pe-
riod, a parallel run period and any nal adjustments, a minimum non-risk-
based leverage ratio (currently set at 3%) will be phased in under Basel III. In
addition to capital requirements, two liquidity ratiosthe liquidity coverage ra-
tio and the net stable funding ratiowould each undergo observation periods
prior to their introduction as minimum standards under the Basel III
framework. See BCBS, Basel III: A global regulatory framework for more
resilient banks and banking systems (Revised June 2011); BCBS, Basel III:
International framework for liquidity risk measurement, standards, and
monitoring (Dec. 2010). See 2:1 et seq.
66
12 C.F.R. 225.2(r)(3)(i)(A), 225.90(b)(1)(i) to (ii). Notably, this approach
does not require the foreign bank to calculate its capital using U.S. bank capital
standards.
67
Comparable does not mean identical to U.S. standards.
68
In making this determination, Regulation Y authorizes the Federal
Reserve to consider a variety of factors including, among others, its composition
of capital, Tier 1 capital to total assets leverage ratio, accounting standards,
long-term debt ratings, reliance on government support to meet capital require-
ments, and whether it is subject to CCS. 12 C.F.R. 225.90(b)(1)(iii). Although
the Federal Reserve will consider an FBO's leverage ratio as part of this deter-
mination, it does not currently require a foreign bank to satisfy any specic Tier
1 leverage ratio. The release accompanying the nal FHC rules states that the
nancial information necessary for the Federal Reserve's sta to compute a
foreign bank's leverage ratio will be required as part of the certication process
830
country has not adopted risk-based capital standards consistent

with Basel I and (2) a foreign bank whose home country has
adopted capital standards based on Basel I but that does not
meet the 6% Tier 1 or 10% total risk-based capital ratios under
the rst method69 to obtain from the Federal Reserve a determi-
nation that their capital is otherwise comparable to the capital
that would be required of a U.S. bank owned by an FHC.70 This
Federal Reserve determination is made in a preclearance
process.71
Many jurisdictions have adopted regulatory capital require-
ments based on Basel II,72 and in many cases, any transitional
regulatory capital oors initially required by Basel II based on
Basel I are no longer in eect or are expected to be phased out in
the near term. For instance, in the European Union, Basel II was
implemented by means of the European Capital Requirements
Directive (CRD).73 For FBOs that have begun operating under
and ongoing reporting required of foreign FHCs. 66 Fed. Reg. 400, 408 n.18
(Jan. 3, 2001).
69
12 C.F.R. 225.90(b) gives the foreign bank a choice between relying on
the Basel I capital standards of its home country or using the preclearance
process.
70
12 C.F.R. 225.90(b)(2). Presumably, the factors to determine comparabil-
ity of capital set forth in 12 C.F.R. 225.92(e) apply to this determination.
71
Before ling an election to be treated as an FHC, a foreign bank whose
home country has not adopted risk-based capital standards consistent with
Basel I or a company owning or controlling such foreign bank must le a request
for a determination in the preclearance process that the foreign bank's capital is
comparable to the capital that would be required of a U.S. bank owned by an
FHC. If the home country of the foreign bank has adopted standards based on
Basel I, the foreign bank may request a review of its capital qualication in the
preclearance process. 12 C.F.R. 225.90(b)(2), 225.91(c).
72
International Convergence of Capital Measurement and Capital
Standards: A Revised Framework (Comprehensive Version June 2006). See
2:1 et seq.
73
Capital Requirements Directive, Directive 2006/48/EC of the European
Parliament and of the Council of 14 June 2006 Relating to the Taking Up and
Pursuit of the Business of Credit Institutions (recast) and Directive 2006/49/EC
of the European Parliament and of the Council of 14 June 2006 on the Capital
Adequacy of Investment Firms and Credit Institutions (recast). Under the CRD
as implemented by member state law, European banks were required to start a
parallel run in the rst quarter of 2007, during which they not only continued
to comply with Basel I but also calculated their capital under Basel II. The
European implementation of Basel II does not contain any oors limiting the
benets from Basel II in terms of any reduced capital requirements. Since its
enactment, the CRD has been amended by two other directives, CRD II and
CRD III. In July 2011, the European Commission proposed to strengthen regula-
tion of the EU banking sector by replacing CRD III with a directive and a
831
Basel II, the Federal Reserve evaluate[s] the capital of the

foreign banking organization as reported in compliance with
[Basel II], while also taking into account a range of factors includ-
ing compliance with [Basel II's] capital requirement oors linked
to Basel I, where applicable.74 The Federal Reserve has stated
that it will continue to evaluate capital equivalency on a case-by-
case basis taking into consideration, among other things, compet-
itive equality between U.S. banking organizations and FBOs.75
Some foreign banks control intermediate bank holding compa-
nies that are organized in the United States (intermediate U.S.
bank holding companies). As a general matter, an intermediate
U.S. BHC that is controlled by a foreign bank FHC has since
2001 not been required to maintain any minimum capital ratios.76
regulation that would, among other things, implement Basel III. Most of Basel
III would be implemented through the proposed regulation except for the provi-
sions on capital buers that are part of the proposed directive. While EU
member states must implement a directive into national law, a regulation is
directly applicable without any further action on the part of the national
authorities. See European Commission, Proposal for a Regulation of the
European Parliament and of the Council on prudential requirements for credit
institutions and investment rms (Jul. 2011); European Commission, Proposal
for a Directive of the European Parliament and of the Council on the access to
the activity of credit institutions and the prudential supervision of credit institu-
tions and investment rms and amending Directive 2002/87/EC of the European
Parliament and of the Council on the supplementary supervision of credit
institutions, insurance undertakings and investment rms in a nancial
conglomerate (July 2011).
74
Risk-Based Capital Standards: Advanced Capital Adequacy Framework
Basel II; Establishment of a Risk- Based Capital Floor, 76 Fed. Reg. 37,620,
37,620 to 37,629 (June 28, 2011). See also Proposed RuleRisk-Based Capital
Standards: Establishment of a Risk-Based Capital Floor, 75 Fed. Reg. 82317,
82319 (Dec. 30, 2010).
75
In response to U.S. bank regulators' proposal to implement the Collins
Amendment by establishing a permanent capital oor, based on the general
risk-based capital requirements (currently reecting Basel I) for U.S. banking
organizations operating under Basel II advanced approaches, some commenters
argued that FBOs that are not subject to Basel I capital oors in their home
countries would have a competitive advantage over their U.S. counterparts.
U.S. bank regulators agreed that such FBOs could theoretically operate with
lower minimum risk-based capital requirements than a U.S. banking organiza-
tion that is subject to the permanent capital oor and stated that they will take
into account these competitive issues when evaluating the capital equivalency
of FBOs. See Risk-Based Capital Standards: Advanced Capital Adequacy
FrameworkBasel II; Establishment of a Risk-Based Capital Floor, 76 Fed.
Reg. 37,620, 37,620 to 37,629 (June 28, 2011).
76
Application of the Federal Reserve's Capital Adequacy Guidelines to
Bank Holding Companies owned by Foreign Banking Organizations, SR Letter
01-1 (SUP) (Jan. 5, 2001). The Federal Reserve explained that in light of provi-
832
The Federal Reserve has assumed that the foreign bank FHC has
sucient nancial strength and resources to support its banking
activities in the United States.77 This historic policy is in the pro-
cess of being changed as a result of the Dodd-Frank Act, which
will require such intermediate bank holding companies to comply
with minimum capital ratios after July 21, 2015.78
[b] The Dodd-Frank Act
The Dodd-Frank Act79 contains a number of provisions that
require or permit U.S. bank regulators to adopt capital, leverage,
and liquidity requirements for bank holding companies and
FBOs.80 In the absence of rulemaking, it is uncertain at this time
precisely what these new requirements will be and what impact
they will have on the existing requirements for an FBO with a
U.S. commercial banking presence to be considered well
sions in the Gramm-Leach-Bliley Act that permit a foreign bank to be an FHC,

it is modifying its previous practice of applying its capital adequacy standards
to the top-tier U.S. BHC owned by a foreign banking organization. The
supervisory letter, however, qualied its policy by stating that [r]elying on the
capital strength of the consolidated banking organization, as well as requiring
all subsidiary banks to meet appropriate capital and management standards, is
consistent with the [Federal Reserve's] supervisory assessment process for do-
mestic [BHCs]. The [Federal Reserve] retains its supervisory authority to
require any [BHC], including a U.S. BHC owned and controlled by a foreign
bank that meets the FHC standards, to maintain higher capital levels where
such levels are appropriate to ensure that its U.S. activities are operated in a
safe and sound manner. This authority may be exercised as part of ongoing
supervision or through the application process.
77
01-1 (SUP) (Jan. 5, 2001).
78
See Dodd-Frank Act, Pub. L. No. 111-203, 171 (2010) (to be codied at
12 U.S.C.A. 5371).
79
Enacted on July 21, 2010, the Dodd-Frank Act marks the greatest legisla-
tive change to U.S. nancial supervision since the 1930s. Many provisions of the
Dodd-Frank Act are not eective immediately upon enactment and require
extensive rulemaking and implementation by U.S. regulators. Following July
21, 2011, they have entered into an intense period of rulemaking. In many in-
stances, the Dodd-Frank Act provides U.S. regulators with considerable
rulemaking authority. See Davis Polk, Summary of the Dodd-Frank Wall Street
Reform and Consumer Protection Act and Regulatory Implementation Slides
(July 21, 2010).
80
U.S. bank regulators have indicated that they will carefully consider the
relationships among these provisions and expressed the view that all aspects of
the [Dodd-Frank] Act should be implemented so as to avoid imposing conicting
or inconsistent regulatory capital requirements. Risk-Based Capital Standards:
Advanced Capital Adequacy FrameworkBasel II; Establishment of a
Risk-Based Capital Floor, 76 Fed. Reg. 37,620, 37,620 to 37,629 (June 28, 2011).
833
capitalized.
A number of provisions in the Dodd-Frank Act, for which U.S.
bank regulators have yet to issue implementing regulations, may
aect whether an FBO with a U.S. commercial banking presence
will be considered well capitalized. Until July 21, 2011, the BHC
Act permitted a BHC to become an FHC if its depository institu-
tion subsidiaries were well capitalized and well managed.81 Eec-
tive July 21, 2011, however, Section 606 of the Dodd-Frank Act
amended the BHC Act to require the BHC, not just its depository
institution subsidiaries, to be well capitalized and well managed.82
This provision applies to an FBO that is or controls a foreign
bank with a U.S. commercial banking presence as well as any
foreign banks controlled by the FBO because under Section 8(a)
of the International Banking Act of 1978 (IBA), they are all
subject to the BHC Act as if they were BHCs.83 It is not clear,
however, how the Federal Reserve will apply this provision to
FBOs that are not themselves foreign banks. The Federal Reserve
has not yet updated its rules for FBOs to reect Section 606.84
The systemic risk regulation provisions85 in the Dodd-Frank
Act will also aect the capital positions of certain systemically
important FBOs could also have a bearing on whether they will
be considered well capitalized. Specically, these provisions
require the Federal Reserve, either on its own or pursuant to
recommendations by the Financial Stability Oversight Council
(the FSOC), to establish enhanced prudential standards,86 includ-
ing risk-based capital,87 leverage,88 and liquidity requirements,
81
12 U.S.C.A. 1843(l)(1)(A) to (B).
82
12 U.S.C.A. 1843(l)(1), amended by Dodd-Frank Act of 2010, Pub. L. No.
111-203, 606 (2010) (amending 1843(l)(1)).
83
12 U.S.C.A. 3106(a).
84
See 12 C.F.R. 225.90(a)(1).
85
The Dodd-Frank Act creates a new systemic risk council of regulators,
called the FSOC, to oversee macroprudential or systemic risk supervision and
regulation in the United States. The FSOC is empowered to designate nonbank
nancial companies as systemically important, thus bringing such companies
under regulation by the Federal Reserve. Dodd-Frank Act, Pub. L. No. 111-203,
111 to 113 (2010) (to be codied at 12 U.S.C.A. 5321 to 5323).
86
The Dodd-Frank Act expressly requires such standards to be more
stringent than those applicable to nonbank nancial companies and BHCs that
do not present similar risks to the nancial stability of the United States.
Dodd-Frank Act, Pub. L. No. 111-203, 165(a)(1)(A) (2010) (to be codied at 12
U.S.C.A. 5365(a)(1)(A)).
87
Generally, o-balance sheet activities must be taken into account for the
purposes of meeting capital requirements promulgated by the Federal Reserve
834
that apply to systemically important nancial companies.89 The

Federal Reserve may, but is not required to, establish additional
prudential standards for systemically important nancial
companies, including requiring them to maintain a minimum
amount of contingent capital that is convertible into equity in
times of nancial stress. 90 Systemically important nancial
companies include foreign banks and other FBOs with no U.S.
commercial banking presence that have been designated as
systemically important,91 foreign banks with a U.S. commercial
as part of its enhanced prudential standards for systemically important nancial

companies. The term o-balance sheet activities means an existing liability
that is not on the balance sheet but may move onto the balance sheet upon the
occurrence of some future event. The denition explicitly includes standby let-
ters of credit, repos, interest-rate swaps, and credit swaps, among others. 12
U.S.C.A. 5365(k). It is also not clear the extent to which the Federal Reserve
will coordinate its implementation of this provision with the eorts under Basel
III to expand the asset base for risk-based capital calculations. See BCBS, Basel
III: A global regulatory framework for more resilient banks and banking systems
(Revised June 2011).
88
Besides the leverage requirement that the Federal Reserve must apply to
all systemically important nancial companies as part of its enhanced
prudential standards, the Federal Reserve must also require a systemically
important nancial company (including a systemically important FBO) to
maintain a debt-to-equity ratio of no more than 15 to one, upon a determination
by the FSOC that such a nancial company poses a grave threat to the nancial
stability of the United States and that the imposition of such requirement is
necessary to mitigate the risk that such nancial company poses to the nancial
stability of the United States. 12 U.S.C.A. 5365(j).
89
The Federal Reserve is also required to establish overall risk manage-
ment requirements, resolution plans, credit exposure reporting, concentration
limits, and early remediation requirements. 12 U.S.C.A. 5365(b)(1)(A)(i). In
prescribing these enhanced prudential standards, the Federal Reserve may dif-
ferentiate among companies on an individual basis or by category, taking into
account their size; capital structure; riskiness; complexity; nancial activities,
including those of their subsidiaries; and any other risk-related factors the
Federal Reserve deems appropriate. 12 U.S.C.A. 5365(a)(2)(A).
90
12 U.S.C.A. 5365(b)(1)(B). The Federal Reserve may require contingent
convertible capital securities, and the FSOC may make recommendations to
that eect but only after an FSOC study and subsequent report to Congress,
which must be submitted within two years of the enactment of the Dodd-Frank
Act. The BCBS has also expressed the view that systemically important banks
should have loss-absorbing capacity beyond the minimum standards and is
developing an integrated approach to systemically important nancial institu-
tions that could include combinations of capital surcharges, contingent capital,
and bail-in debt. See BCBS, Basel III: A global regulatory framework for more
resilient banks and banking systems (Revised June 2011).
91
For purposes of the systemic risk regulation provisions in the Dodd-Frank
Act, the term foreign nonbank nancial company means a company (other
than a foreign bank with a U.S. commercial banking presence) that is
835
banking presence that have $50 billion or more in consolidated

assets,92 and foreign banks (whether or not they have a U.S. com-
mercial banking presence) that have been designated as systemi-
cally important under the certain anti-evasion rules93 [collectively
systemically important FBOs]. It is not clear the extent to which
the enhanced prudential standards will apply extraterritorially
to the non-U.S. operations of systemically important FBOs. In
light of the statutory requirement that the Federal Reserve give
due regard to national treatment, competitive equality, and com-
parable home-country standards,94 as well as recent pronounce-
ments on the extraterritorial application of federal statutes by
the U.S. Supreme Court, 95 the Federal Reserve may allow
systemically important FBOs to satisfy these enhanced capital
incorporated or organized in a country other than the United States and is

predominantly engaged in nancial activities. 12 U.S.C.A. 5365(a)(4)(A). To be
predominantly engaged in nancial activities, 85% or more of a company's and
its subsidiaries' consolidated annual gross revenues or consolidated total assets
must be attributable to activities that are nancial in nature under Section 4(k)
of the BHC Act and, if applicable, attributable to the ownership or control of
one or more insured depository institutions. 12 U.S.C.A. 5365(a)(6).
92
Foreign banks with a U.S. commercial banking presence that have $50
billion or more in consolidated assets are automatically subject to enhanced
prudential standards; no Federal Reserve action or FSOC determination is
required. It is not clear whether the Federal Reserve will only look to a foreign
bank's U.S. assets for purposes of the $50 billion test or whether it will look to
the foreign bank's worldwide assets. If the latter, then a foreign bank with less
than $50 billion in U.S. assets could still be subject to the Federal Reserve's
enhanced prudential standards. In connection with the resolution plan and
credit exposure report requirements in Section 165 of the Dodd-Frank Act, the
Federal Reserve and the FDIC proposed that the $50 billion test would apply to
a foreign bank's worldwide assets. However, the proposal would only require
foreign banks with at least $50 billion in worldwide assets to prepare resolution
plans and credit exposure reports with respect to their U.S.-domiciled subsidiar-
ies and operations. Resolution Plans and Credit Exposure Reports Required, 76
Fed. Reg. 22,648, 22,648 to 22,654 (Apr. 22, 2011).
93
Dodd-Frank Act, Pub. L. No. 111-203 (2010) (to be codied at 12 U.S.C.A.
5323(a)).
94
12 U.S.C.A. 5365(b)(2).
95
In Morrison v. National Australia Bank, the Supreme Court held that
federal legislation is presumed to apply only within the territory of the United
States unless the legislation clearly expresses an armative intention by
Congress that it has extraterritorial application. In other words, [w]hen a stat-
ute gives no clear indication of an extraterritorial application, it has none. 130
S. Ct. 2869, 2878 (2010). While the systemic risk provisions in the Dodd-Frank
Act expressly apply to systemically important foreign banks, they are largely
silent on whether the enhanced prudential standards to be established by the
Federal Reserve are intended to apply extraterritorially to the non-U.S. opera-
tions of such banks.
836
and liquidity requirements based on calculations under home-

country standards, provided that their home-country supervisors
have adopted comparable standards through their adoption of
the Basel Accords process or otherwise. Assuming that enhanced
capital, leverage, and liquidity requirements promulgated by the
Federal Reserve will apply to systemically important FBOs,
whether globally or with respect to their U.S. operations, satis-
faction of such requirements may become an important consider-
ation in determining whether a foreign bank or company control-
ling a foreign bank is well capitalized for purposes of its FHC
election.
[c] Impact of the Collins Amendment on Foreign
Banking Organizations
The Collins Amendment in the Dodd-Frank Act imposes, over
time, the minimum leverage and risk-based standards applicable
to U.S. insured depository institutions as a oor on U.S. BHCs,
including U.S. intermediate bank holding companies of FBOs,
thrift holding companies, and systemically important nonbank
nancial companies (including the U.S. operations of FBOs with
no U.S. commercial banking presence).96
For intermediate U.S. bank holding companies of FBOs that
have relied on the exemption from the Federal Reserve's capital
adequacy guidelines under Supervision and Regulation Letter
SR-01-1,97 the U.S. minimum risk-based capital and leverage
capital requirements and the other requirements of the Collins
Amendment for debt or equity issued before May 19, 2010, will
take eect ve years after the enactment of the Dodd-Frank Act.98
The Collins Amendment is immediately eective for hybrid debt
or equity instruments issued by such intermediate bank holding
companies on or after May 19, 2010.99
As a technical matter, the Collins Amendment also applies to
the U.S. operations of FBOs with no U.S. commercial banking
presence that are designated as systemically important. It is
unclear, however, whether U.S. bank regulators will in fact
extend the Collins Amendment, including its capital and leverage
ratio oors, to such FBOs. Section 165 of the Dodd-Frank Act
96
See Dodd-Frank Act, Pub. L. No. 111-203, 171 (2010) (to be codied at
12 U.S.C.A. 5371). See also 2:1 et seq.
97
01-1 (SUP) (Jan. 5, 2001).
98
12 U.S.C.A. 5371(b)(4)(E).
99
12 U.S.C.A. 5371(b)(4)(A).
837
grants the Federal Reserve authority to exempt the U.S. opera-

tions of systemically important nonbank nancial companies
(including FBOs with no U.S. commercial banking presence that
are designated as systemically important) from the application of
risk-based capital requirements and leverage requirements re-
lated to systemic designation.100 In order to do so, the Federal
Reserve must determine, in consultation with the FSOC, that the
requirements are not appropriate for a company because of the
company's activities or structure and must apply other standards
that result in similarly stringent controls. 101 If the Federal
Reserve makes this determination, it appears that the Collins
Amendment would not apply to the U.S. operations of a systemi-
cally important FBO with no U.S. commercial banking presence,
but the interaction of these two portions of the Dodd-Frank Act is
not clear.
The Collins Amendment does not authorize U.S. bank regula-
tors to establish minimum capital requirements for FBOs with a
U.S. commercial banking presence. As a result, an FBO whose
home-country requirements no longer subject it to Basel I oors
could theoretically operate with lower minimum risk-based
capital requirements than a U.S. banking organization that is
subject to the Collins Amendment.102 The potential competitive
equality issues arising from this discrepancy could be taken into
account by the Federal Reserve when assessing whether an FBO's
capital is comparable to the capital that would be required of a
U.S. bank owned by an FHC.103 This may be an issue for FBOs
whose home-country requirements no longer subject them to
Basel I oors.
[4] Management
As noted in Section 10:3[1], an FBO will satisfy the well-
managed requirement to become an FHC only if the FBO, if it is
or controls a foreign bank with a U.S. commercial banking pres-
ence; all of its U.S. insured and uninsured depository institution
subsidiaries; and all foreign banks with a U.S. commercial bank-
100
Dodd-Frank Act, Pub. L. No. 111-203, 165(b)(1)(A) (2010) (to be codied
at 12 U.S.C.A. 5365(b)(1)(A)).
101
Dodd-Frank Act, Pub. L. No. 111-203, 165(b)(1)(A) (2010) (to be codied
at 12 U.S.C.A. 5365(b)(1)(A)).
102
Risk-Based Capital Standards: Advanced Capital Adequacy Framework
Basel II; Establishment of a Risk- Based Capital Floor, 76 Fed. Reg. 37,620,
37,620 to 37,629 (June 28, 2011).
103
See Risk-Based Capital Standards: Advanced Capital Adequacy
FrameworkBasel II; Establishment of a Risk-Based Capital Floor, 76 Fed.
Reg. 37,620, 37,620 to 37,629 (June 28, 2011).
838
ing presence that are controlled by it are well managed.104

A U.S. insured and uninsured depository institution will be
deemed to be well managed if it received a composite rating of at
least satisfactory and, if such rating is given, a rating for
management of at least satisfactory at its most recent state or
federal examination.105
A foreign bank with a U.S. commercial banking presence will
be deemed to be well managed if (i) its U.S. branches, agencies,
and commercial lending company subsidiaries received a
combined, composite assessment of at least satisfactory at their
most recent examination; (ii) its home-country supervisor
consents to the foreign bank expanding its activities in the United
States to include activities permissible for an FHC; and (iii) its
management otherwise meets standards comparable to those
required of a U.S. bank owned by an FHC.106 The consent of the
home-country supervisor may be provided in writing or by ar-
ranging for the Federal Reserve to consult with the home-country
supervisor.107
In case of new depository institutions that have not received an
examination rating, the term well managed means that the
[Federal Reserve] has determined, after a review of the manage-
rial and other resources of the depository institution . . . that the
104
12 U.S.C.A. 1843(l)(1)(B); 12 C.F.R. 225.81(b)(2), 225.90(a)(1). Before
July 21, 2011, the BHC Act did not require a BHC to be well capitalized and
well managed in order for the BHC to qualify as an FHC. Only its depository
institution subsidiaries were required to satisfy those tests. Section 606 of the
Dodd-Frank Act, however, amended the BHC Act to require the BHC itself to
be well capitalized and well managed in order to qualify as an FHC. Section 606
applies to an FBO that controls a foreign bank with a U.S. commercial banking
presence because under Section 8(a) of the IBA, such an FBO is subject to the
BHC Act as if it were a BHC. See 12 U.S.C.A. 3106(a). Section 606 became ef-
fective on July 21, 2011. The Federal Reserve has not yet proposed any regula-
tions explaining how the amendments made by Section 606 will apply to FBOs.
105
12 C.F.R. 225.2(s)(1). See, e.g., Commercial Bank Examinations Manual,
A.5020.1, Board of Governors of the Federal Reserve System (Apr. 2011).
106
12 C.F.R. 225.90(c). See, e.g., Enhancements to the Interagency Program
for Supervising the U.S. Operations of Foreign Banking Organizations, SR
Letter 00-14 (SUP) (Oct. 23, 2000).
107
See 66 Fed. Reg. 400, 409 (Jan. 3, 2001). The consultation is conducted so
that the Federal Reserve can assure itself that the home-country supervisor
considers the consolidated capital and management of the bank to satisfy its
home-country standards and that the supervisor has no objections to the
expansion.
839
. . . institution is well managed.108 Although this provision does

not expressly apply to new U.S. branches, agencies, or commercial
lending company subsidiaries of foreign banks that have not
received an examination assessment, the Federal Reserve has
the discretion to employ the same exible standard in determin-
ing whether the well-managed standard is satised.109
[5] Comprehensive Consolidated Supervision
As noted in Section 10:3[1], the Federal Reserve's own regula-
tions prevent it from considering a foreign bank to be well capital-
ized and well managed unless the foreign bank is subject to
comprehensive supervision or regulation on a consolidated basis
in its home country, or the Federal Reserve determines that the
foreign bank's home-country supervisor has made signicant
progress toward CCS, and the foreign bank is in strong nancial
condition.110 A foreign bank may be considered to be subject to
CCS if the Federal Reserve determines that the bank is super-
vised or regulated in such a manner that its home-country
supervisor receives sucient information on the worldwide opera-
tions of the foreign bank, including the relationship of the bank
to its aliates, to assess the foreign bank's overall nancial condi-
108
12 C.F.R. 225.2(s)(1)(ii). See also Enhancements to the Interagency
Program for Supervising the U.S. Operations of Foreign Banking Organiza-
tions, SR Letter No. 00-14 (SUP) (Oct. 23, 2000).
109
If a foreign bank that wishes to obtain FHC status has not been assigned
a combined U.S. banking assessment as part of the regular examination cycle,
the foreign bank should contact its responsible Federal Reserve bank or utilize
the preclearance process. 12 C.F.R. 225.91(c). A combined U.S. banking as-
sessment may be assigned to a foreign bank as part of the FHC preclearance
process. See 66 Fed. Reg. 400, 409 (Jan. 3, 2001).
110
12 C.F.R. 225.92(e). Despite the promise of this alternative standard,
the Federal Reserve has not previously approved an FHC election based on a
foreign bank's home-country supervisor making signicant progress toward
CCS. In contrast, the Federal Reserve has approved several applications by
foreign banks to establish branches in the U.S. based on home-country supervi-
sors actively working toward CCS. See, e.g., ICICI Bank, 94 Fed. Res. Bull.
C26 (2008); China Merchants Bank, 94 Fed Res. Bull. C24 (2008); Industrial
and Commercial Bank of China, Order Approving Establishment of a Branch
(Aug. 5, 2008). See Randall Guynn, Emerging Trends and Key Developments in
the Regulation and Supervision of Branches and Agencies of International
Banks and in the Regulation of International Banks Themselves as Bank
Holding Companies and Financial Holding Companies, Annual Regulatory
Examination, Risk Management and Compliance Seminar, Institute of
International Bankers (Oct. 30, 2007).
840
tion and compliance with law and regulation. 111 The terms
comprehensive regulation and consolidated basis are suf-
ciently broad to leave the Federal Reserve substantial latitude
in determining whether to deem an FHC election as ineective
on the basis of insucient home-country regulation.
In theory, the CCS requirement must be fullled on a bank-by-
bank basis, not on a country-by-country basis. According to one
sta member, however, applicants chartered in the same country
may rely on information previously submitted and considered by
the Federal Reserve on consolidated supervision in that country.
Subsequent applicants need only describe the extent to which the
supervision system already evaluated applies to them and how, if
at all, that system has changed since the Federal Reserve last
considered it.112 As a result, it is normally less dicult for the
second bank from a particular country to work through the CCS
requirement with the Federal Reserve.
A foreign bank that has not previously been determined by the
Federal Reserve to be subject to CCS and that is chartered in a
country where no other bank from that country has been
determined by the Federal Reserve to be subject to CCS is
required (not merely encouraged) to use the preclearance process,
even if it otherwise meets the objective FHC criteria.113
There may be limited situations in which an exceptionally
strong bank from a country that has not yet fully implemented
CCS should be able to be considered for FHC status. The Federal
111
The Federal Reserve considers, among other factors, the extent to which
the home-country supervisor:
E Ensures that the foreign bank has adequate procedures for monitoring
and controlling its activities worldwide;
E Obtains information on the condition of the foreign bank and its subsid-
iaries and oces outside the home country through regular reports of
examination, audit reports, or otherwise;
E Obtains information on the dealings and relationship between the
foreign bank and its aliates, both foreign and domestic;
E Receives from the foreign bank nancial reports that are consolidated
on a worldwide basis or comparable information that permits analysis of
the foreign bank's nancial condition on a worldwide, consolidated basis;
and
E Evaluates prudential standards, such as capital adequacy and risk asset
exposure, on a worldwide basis.
12 C.F.R. 211.24(c)(ii)(A) to (E).
112
Misback, The Foreign Bank Supervision Enhancement Act of 1991, 79
Fed. Res. Bull. 1, 9 (1993); see also, e.g., Bank Sinopac, 83 Fed. Res. Bull. 669,
669 (1997).
113
12 C.F.R. 225.91(c).
841
Reserve may grant FHC status to a foreign bank that is not yet
fully subject to CCS if the home-country supervisor has made
signicant progress in adopting and implementing arrange-
ments for the comprehensive and consolidated supervision of its
banks and if the foreign bank demonstrates signicant nancial
strength, such as through levels of capital that signicantly
exceed the minimum levels required for a well-capitalized deter-
mination or through exceptional asset quality.114 A foreign bank
that is not subject to CCS may use the preclearance process to
explain to the Federal Reserve why it should be granted FHC
status. The Federal Reserve anticipates granting FHC status to
foreign banks that are not subject to CCS only in rare instances.115
[6] Community Reinvestment Act
As noted in Section 10:3[1], if an FBO is a BHC, or has or
controls a foreign bank with any insured branches, all of its
FDIC-insured depository institution subsidiaries and insured
branches must have achieved a rating of at least satisfactory
under the CRA in the most recent examination of such
institutions. Although the CRA requirement is not expressly part
of the certication requirement, the Federal Reserve is prohibited
from treating an FHC election as eective if the CRA require-
ment is not satised.116 The Federal Reserve must use the 30-day
period beginning on the date that the declaration of election to be
an FHC is deemed to be complete to determine whether the CRA
rating requirement is met.117
10:4 Expanded powers of an FHC

As noted in Section 10:2[3], the BHC Act permits both bank
holding companies and FBOs that are otherwise subject to the
BHC Act to exercise certain expanded powers if they qualify for
and elect to be treated as nancial holding companies. In contrast
to ordinary bank holding companies or FBOs, FHCs are not
limited to owning and controlling banks and engaging in, or own-
114
12 C.F.R. 225.92(e)(2).
115
See 66 Fed. Reg. 400, 411 (Jan. 3, 2001). To date, the Federal Reserve
has not approved FHC status for any FBO that has not met the CCS standard
based on the signicant progress standard. See Randall Guynn, Emerging
Trends and Key Developments in the Regulation and Supervision of Branches
and Agencies of International Banks and in the Regulation of International
Banks Themselves as Bank Holding Companies and Financial Holding
Companies, Annual Regulatory Examination, Risk Management and Compli-
ance Seminar, Institute of International Bankers (Oct. 30, 2007).
116
12 U.S.C.A. 2906(b)(2)(B).
117
12 U.S.C.A. 2903(c)(1)(B).
842
ing or controlling companies engaged in, activities that are

closely related to banking or, in the case of QFBOs, certain ad-
ditional activities and investments under the QFBO exemptions.
Instead, FHCs may also engage in, or own or control any
companies engaged in, any activity that is nancial in nature,
incidental to a nancial activity, or complementary to a nancial
activity.118 The authority to engage in these expanded activities is
not limited to activities in the United States but rather extends
to anywhere in the world, subject to the laws of the jurisdiction
in which the activity is conducted.119 Of course, electing FHC
status does not prevent a QFBO from relying on the QFBO
exemptions to engage in certain activities or make certain invest-
ments outside the United States that are not generally permis-
sible even for FHCs.120
These expanded powers, however, will become subject to the
Volcker Rule and the swaps pushout rule121 when those provi-
sions become eective, subject to their transition rules. The
Volcker Rule prohibits proprietary trading in certain securities
and other nancial instruments, as well as certain investments
and relationships with hedge funds and private equity funds,
subject to certain exemptions. The swaps pushout rule prohibits
FBOs from engaging in swaps activities in any U.S. branch or
agency that has access to the Federal Reserve's discount window
or in a U.S. insured depository institution aliate. For a more
complete discussion of the limits imposed by the Volcker Rule
and the swaps pushout rule, when those provisions becomes ef-
fective, on the expanded powers of an FHC, see Sections 10:8 and
10:9, respectively.
[1] Financial Activities
The BHC Act denes nancial activities as any activity that
the Federal Reserve determines, by regulation or order in accor-
[Section 10:4]
118
12 U.S.C.A. 1843(k)(1).
119
12 C.F.R. 225.85(b). The territorial limitations of 12 C.F.R. 211.8 and
211.10 relating to investments by BHCs outside the United States do not apply
to FHCs whether the activity is conducted in or out of the United States. See 66
Fed. Reg. 400, 406 n.14 (Jan. 3, 2001).
120
See 10:2[2]. For example, QFBOs are permitted to hold controlling
interests in foreign commercial companies with only limited activities in the
United States without complying with the conditions applicable to merchant
banking or insurance company portfolio investments. See 12 C.F.R. 211.23(f).
For a more extended discussion of the QFBO exemptions, see 9:1 et seq.
121
Dodd-Frank Act, Pub. L. No. 111-203, 619, 716 (2010) (to be codied at
12 U.S.C.A. 1851 and 15 U.S.C.A. 8305).
843
dance with certain procedures, to be nancial in nature.122 It also

lists certain activities that shall be considered to be nancial in
nature without any Federal Reserve action,123 as well as certain
activities that will be considered nancial in nature only to the
extent that the Federal Reserve species by regulation or order.124
In essence, this statutory scheme creates a laundry list of activi-
ties that are automatically deemed to be nancial in nature and
a process by which the Federal Reserve may add to that list by
regulation or order. The Federal Reserve's Regulation Y lists all
of the activities considered to be nancial in nature by this statu-
tory scheme, as well as all of the activities that the Federal
Reserve has thus far determined by regulation or order to be
nancial in nature or incidental to a nancial activity.125
[a] Laundry List
The following activities are considered to be nancial in
nature without further Federal Reserve action:
E Money and Securities. Lending, exchanging, transferring,
investing for others, or safeguarding money or securities
(but not other assets except as described below).126
E Insurance. Insuring, guaranteeing, or indemnifying against
loss, harm, damage, illness, disability, or death or providing
and issuing annuities and acting as principal, agent, or bro-
ker for purposes of the foregoing.127
E Advisory Services. Providing nancial, investment, or eco-
122
12 U.S.C.A. 1843(k)(1).
123
12 U.S.C.A. 1843(k)(4).
124
12 U.S.C.A. 1843(k)(5).
125
12 C.F.R. 225.86.
126
12 U.S.C.A. 1843(k)(4)(A).
127
12 U.S.C.A. 1843(k)(4)(B). See Conference Report on S. 900 at 154 stat-
ing that the reference to insuring, guaranteeing, or indemnifying against . . .
illness is meant to include activities commonly thought of as health insurance
and that the reference is not meant to include the activity of directly providing
health care on a basis other than to the extent that it may be incidental to the
business of insurance. Insurance includes reinsurance. See 12 Fed. Reg. 400,
405 (Jan. 3, 2001).
The Federal Reserve has determined that the insurance activities permit-
ted by 4(k)(4)(B) of the BHC Act include insurance claims administration (i.e.,
collecting and holding in trust insurance premiums, establishing an insurance
claims paying account, adjusting insurance claims, negotiating with insureds
concerning insurance claims, and paying and settling insurance claims) and
risk management services in connection with insurance sales activities (i.e., as-
sessing the risks of a client and identifying the client's exposure to loss; design-
ing programs, policies, and systems to reduce the client's risks; advising clients
about risk management alternatives to insurance; and negotiating insurance
844
nomic advisory services, including advising an investment

company (as dened by the U.S. Investment Company Act of
1940 (the 1940 Act)).128
E Securitization of Bank-Eligible Assets. Issuing or selling
instruments representing interests in pools of assets permis-
sible for a bank to hold directly.129
E Securities Activities. Underwriting, dealing in, or making a
market in securities.130
coverage, deductibles, and premiums for an insurance client). Letter from J.

Virgil Mattingly, General Counsel to the Federal Reserve, to Karol K. Sparks
(July 10, 2002), Fed. Banking L. Rep. (CCH) 80-304 (Curr. Vol. 2002). Permit-
ted insurance activities also include acting as a third-party administrator for an
insurance company. See H.R. Rep. No. 106-74 pt. 1, at 122 (1999), 1999 WL
176905 (Leg. Hist.) at 116 (Activities such as administering, marketing, advis-
ing or assisting with . . . claim administration or similar programs shall be
deemed to be incidental to insurance activities as described in [Section 4(k)(4) of
the BHC Act].); Letter from J. Virgil Mattingly, General Counsel to the Federal
Reserve, to Craig N. Landrum (July 10, 2002), Fed. Banking L. Rep. (CCH)
80-303 (Curr. Vol. 2002) (listing the services that are included in third-party
administration).
Before the adoption of the GLB Act, a BHC could, and after the adoption
of the GLBA, it may continue to, (i) underwrite or sell as agent, life, disability,
and unemployment insurance that is related to credit extended by the BHC or
its subsidiaries, 12 C.F.R. 225.28(b)(11)(i) (Regulation Y); (ii) sell as agent
property insurance that is related to small credits issued by the BHC's nance
company subsidiary, 12 C.F.R. 225.28(b)(11)(ii) (Regulation Y); and (iii)
perform insurance agency activities from a place with a population of 5,000 or
less (or which has otherwise inadequate insurance facilities as determined by
the Federal Reserve) if the BHC or any of its subsidiaries has a lending oce in
such small town (insurance can be sold to customers nationwide from such loca-
tion regardless of the customer's location), 12 C.F.R. 225.28(b)(11)(iii) (Regula-
tion Y). See 12 U.S.C.A. 92.
128
12 U.S.C.A. 1843(k)(4)(C).
129
12 U.S.C.A. 1843(k)(4)(D).
130
12 U.S.C.A. 1843(k)(4)(E). Unlike the securities underwriting and deal-
ing powers that are deemed to be closely related to banking or usual in connec-
tion with banking abroad, these securities powers are not subject to revenue
limits or rewalls other than Sections 23A and 23B of the FRA (including that
intraday extensions of credit by banking entities to securities aliates be on
market terms), 12 C.F.R. 225.4(g), or to any condition that they be exercised
only outside the United States. See, e.g., J.P. Morgan & Co., Inc., et al., 75 Fed.
Res. Bull. 192 (1989), a'd sub nom. Securities Industry Ass'n v. Board of
Governors of the Federal Reserve System, 900 F.2d 360 (D.C. Cir. 1990);
Citicorp, et al., 73 Fed. Res. Bull. 473 (1987), a'd sub nom. Securities Industry
Ass'n v. Board of Governors of the Federal Reserve System, 839 F.2d 47 (2d Cir.
1988), cert. denied, 486 U.S. 1059 (1988) as modied by Modications to Section
20 Orders, 75 Fed. Res. Bull. 751 (1989) (raising revenue limit from 5% to 10%),
and 10 Percent Revenue Limit on Bank-Ineligible Activities of Subsidiaries of
Bank Holding Companies Engaged in Underwriting and Dealing in Securities,
845
E Merchant Banking. Acquiring controlling or noncontrolling

interests in any company that is engaged in any activity
other than an activity that is nancial in nature, incidental
to a nancial activity, complementary to a nancial activity,
or otherwise permitted by Section 4 of the BHC Act provided
that the FHC has a securities aliate or both an insurance
aliate and an investment adviser aliate and subject to
certain conditions described more fully in Section 10:4[7].131
E Insurance Company Portfolio Investments. Acquiring con-
trolling or noncontrolling interests in any company that is
engaged in any activity other than an activity that is
nancial in nature, incidental to a nancial activity,
complementary to a nancial activity, or otherwise permit-
ted by Section 4 of the BHC Act provided that the interests
are acquired and held by an insurance company aliate and
subject to certain other conditions described more fully in
Section 10:4[8].132
E Closely Related to Banking. Any activity that the Federal
Reserve had determined by order or regulation in eect on
November 12, 1999, to be so closely related to banking or
managing or controlling banks as to be a proper incident
thereto (subject to the same terms and conditions contained
in such order or regulation unless modied by the Federal
Reserve) including the activities that are listed in Sections
225.28 and 225.86(a)(2) of Regulation Y.133 The activities
listed in Section 225.28 of Regulation Y include the following:
61 Fed. Reg. 48,953 (1996) (adopting change in the manner in which interest
earned on certain securities held by a company in an underwriting or dealing
capacity are treated in determining whether the company is engaged principally
in underwriting and dealing in securities for purposes of Section 20 of the
Glass-Steagall Act); and Revenue Limit on Bank-Ineligible Activities of Subsid-
iaries of Bank Holding Companies Engaged in Underwriting and Dealing in
Securities, 61 Fed. Reg. 68,750 (1996) (raising revenue limits from 10% to 25%);
12 C.F.R. 211.10(a)(14), (15) (territorial conditions), 225.200 (rewalls).
131
12 U.S.C.A. 1843(k)(4)(H).
132
12 U.S.C.A. 1843(k)(4)(I).
133
12 U.S.C.A. 1843(k)(4)(F); 12 C.F.R. 225.28, 225.86(a)(2). For a
discussion of the list of activities that are considered to be closely related to
banking, see 9:1 et seq. Because Section 4(k)(4)(F) is limited to activities
that the Federal Reserve had determined by order or regulation in eect on
November 12, 1999, to be closely related to banking, the list is eectively frozen
as of that date, i.e., any activities subsequently added to the closely related to
banking list will only be considered nancial in nature if the Federal Reserve
follows the procedures in Section 4(k).
While Section 4(k)(4)(F) of the BHC Act may have frozen the categories of
closely related to banking activities that will be considered to be nancial in
846
E Derivative Contracts. Engaging as principal in forward

contracts, options, futures, options on futures, swaps,
and similar contracts, whether exchange-traded or over-
the-counter, based on any rate, price, nancial asset,
nonnancial asset, or group of assets, subject to certain
conditions.134
E Usual in Connection with Banking Abroad. Any activity that
the Federal Reserve has determined by regulation or inter-
pretation to be usual in connection with the transaction of
banking or other nancial operations abroad, including the
activities listed in Section 211.10(a) of Regulation K, without
regard to any condition that otherwise requires any of these
activities be conducted outside the United States.135 These
activities include the following:
E Mutual Funds. Organizing, sponsoring, and managing a
mutual fund so long as the fund does not exercise man-
agerial control over the entities in which the fund
invests, and the FHC reduces its ownership in the fund,
if any, to less than 25% of the equity of the fund within
one year of sponsoring the fund or such additional pe-
riod as the Federal Reserve permits.136
E Management Consulting. Providing management con-
sulting services, including with respect to nonnancial
matters, so long as the management consulting services
are advisory and do not allow the FHC to control the
person to which the services are provided.137
nature, Section 4(k)(4)(F) permits the Federal Reserve to relax any conditions
applicable to any previously permitted category of activity, even if relaxing the
limitation has the eect of expanding the range of permissible activities within
the overall category. Thus, the Federal Reserve has eectively expanded the
range of principal activities with respect to commodity contracts that are
considered to be closely related to banking by amending Section 225.28(b)(8)(ii)
(B) of Regulation Y to eliminate the previous prohibitions on (i) taking or mak-
ing delivery of title to commodities underlying commodity derivative contracts
to the extent they are done on an instantaneous pass-through basis; and (ii)
entering into commodity derivative contracts that do not require cash settle-
ment or specically provide for assignment, termination, or oset prior to
delivery. See 68 Fed. Reg. 39,807 (July 3, 2003). The Federal Reserve has also
eectively expanded the range of permissible data-processing activities by
amending Section 225.28(b)(14) of Regulation Y to relax certain previously ap-
plicable limitations on data processing. See 68 Fed. Reg. 68,493 (Dec. 9, 2003).
134
12 C.F.R. 225.28(b)(8)(ii).
135
12 U.S.C.A. 1843(k)(4)(G); 12 C.F.R. 211.5(d), 225.86(b).
136
12 C.F.R. 225.86(b)(3), 211.10(a)(11).
137
12 C.F.R. 225.86(b)(1), 211.10(a)(12).
847
E Travel Agency. Operating a travel agency in connection

with nancial services oered by the FHC or others.138
The following activities are considered nancial in nature
solely to the extent, and subject to the conditions, that the Federal
Reserve species by regulation:
E Financial Assets Other than Money or Securities. Lending,
exchanging, transferring, investing for others, or safeguard-
ing nancial assets other than money or securities.
E Asset Transfer Devices. Providing any device or other
instrumentality for transferring money or other nancial
assets.
E Agency Activities. Arranging, eecting, or facilitating
nancial transactions for the account of third parties but
only to the extent that the Federal Reserve species by
regulation or order that such activities are nancial in
nature.139
The Federal Reserve has specied by regulation that the activi-
ties listed above are nancial in nature only when conducted pur-
suant to a specic determination by the Federal Reserve for a
particular FHC.140
An FHC or other interested party may request an advisory
opinion from the Federal Reserve about whether a proposed activ-
ity falls within the scope of an activity listed in Section 225.86 of
Regulation Y as an activity that is nancial in nature or
incidental to a nancial activity.141
The authority to engage in merchant banking and insurance
company portfolio investments diers from the other nancial
activities in that they permit FHCs to control portfolio companies
that are engaged exclusively in nonnancial activities or a
mixture of nancial and nonnancial activities, subject to certain
conditions, including maximum holding periods and restrictions
on being routinely involved in the management or operation of
such portfolio companies as more fully described in Sections
10:4[7] and 10:4[8].
[b] Additional Financial Activities
In addition to the laundry list of nancial activities, the
Federal Reserve has the authority to permit FHCs to engage in,
138
12 C.F.R. 225.86(b)(2), 211.10(a)(16).
139
12 U.S.C.A. 1843(k)(5); 12 C.F.R. 225.86(e).
140
12 C.F.R. 225.86(e)(1), (2).
141
12 C.F.R. 225.88(e).
848
or own or control companies engaged in, any other activity that

the Federal Reserve determines by regulation or order to be
nancial in nature.
An FHC or other interested party142 may request a determina-
tion from the Federal Reserve that an activity not listed in the
BHC Act, or previously determined by the Federal Reserve to be
a nancial activity, is nancial in nature.143 The Federal Reserve
or the Secretary of the Treasury may also propose that an activ-
ity be considered nancial in nature on its own initiative.144
Before declaring a new activity to be nancial in nature, the
Federal Reserve must notify and consult with the Secretary of
the Treasury.145 The Federal Reserve is prohibited from declaring
any activity to be nancial in nature if the Secretary of the Trea-
sury objects.146 The Federal Reserve must implement its approval
of any proposal by the Secretary of the Treasury by amending its
regulations subject to the ordinary public notice and comment
requirements.147 On any proposal from any other person, the
Federal Reserve is permitted, but not required, to request public
comment on the proposal.148
In determining whether an activity is nancial in nature, the
Federal Reserve is required to take into account the following
factors:
E the purposes of the BHC Act and the GLB Act;
E changes or reasonably expected changes in the marketplace
in which FHCs compete;
E changes or reasonably expected changes in the technology
for delivering nancial services; and
E whether the proposed activity is necessary or appropriate to
allow an FHC and its aliates to compete eectively with
142
12 C.F.R. 225.88(a). A BHC that has not yet elected FHC status may
le a request if its decision whether or not to seek FHC status depends on
certain activities being considered to be nancial in nature or incidental to a
nancial activity.
143
12 C.F.R. 225.88(a).
144
12 U.S.C.A. 1843(k)(2)(A)(i), (B)(i); 66 Fed. Reg. 400, 407 (Jan. 3, 2001).
145
12 U.S.C.A. 1843(k)(2)(A)(i); 12 C.F.R. 225.88(c).
146
12 U.S.C.A. 1843(k)(2)(A)(ii). The Secretary of the Treasury must re-
spond to a notice within 30 days, and the Federal Reserve will endeavor to
make a decision on the request within 60 calendar days following the comple-
tion of the consultative process with the Secretary of the Treasury and any pub-
lic comment period. 12 C.F.R. 225.88(d).
147
12 U.S.C.A. 1843(k)(2)(B)(ii).
148
See 66 Fed. Reg. 400, 407 (Jan. 3, 2001).
849
any company seeking to provide nancial services in the

United States, eciently deliver information and services
that are nancial in nature through the use of technological
means, and oer customers any available or emerging
technological means for using nancial services or for the
document imaging of data.149
To date, neither the Federal Reserve nor the Secretary of the
Treasury has proposed to add any activity to the list of activities
considered nancial in nature.
[2] Incidental Activities
Similar to the denition of nancial activities, the BHC Act
denes activities that are incidental to a nancial activity as any
activity that the Federal Reserve determines, by regulation or or-
der in accordance with certain procedures described more fully
below, to be incidental to a nancial activity.150 As noted in Section
10:4[1][a], an FHC or other interested party may request an ad-
visory opinion from the Federal Reserve about whether a
proposed activity falls within the scope of an activity listed in
Section 225.86 of Regulation Y as an activity that is nancial in
nature or incidental to a nancial activity.151 The procedures for
nding a new activity to be incidental to a nancial activity are
identical to the procedures for nding a new activity to be
nancial in nature. As a result, the Federal Reserve has tended
to treat both categories as a single category for purposes of Regula-
tion Y.152
The Federal Reserve has determined that acting as a nder
is incidental to nancial activities.153 A nder is an intermediary
that brings together one or more buyers and sellers of any prod-
uct or service for transactions that the parties negotiate and
consummate themselves.154 Among the sorts of activities that fall
within this category are hosting electronic markets on Internet
Web sites that bring buyers and sellers together to eect transac-
149
12 U.S.C.A. 1843(k)(3)(D).
150
12 U.S.C.A. 1843(k)(1).
151
12 C.F.R. 225.88(e).
152
See 12 C.F.R. 225.86.
153
65 Fed. Reg. 80,735 (Dec. 22, 2000).
154
12 C.F.R. 225.86(d)(1). See 65 Fed. Reg. 47,696 (Aug. 3, 2000) (proposed
rule on nders); 65 Fed. Reg. 80,735 (Dec. 22, 2000) (nal rule on nders); 66
Fed. Reg. 19,081 (Apr. 13, 2001) (technical amendments restoring nders rule
that had been inadvertently dropped from Section 225.86 of Regulation Y). See
Williams and Gillespie, Jr., The Impact of Technology on Banking: The Eect
and Implications of Deconstruction of Banking Functions, 5 N.C. Banking
850
tions that they negotiate and consummate themselves.155

On January 3, 2001, the Federal Reserve and the Secretary of
the Treasury jointly proposed that real estate brokerage and real
estate management be treated as incidental to a nancial
activity.156 Although the agencies have not formally withdrawn
their joint proposal, they have eectively abandoned it in the face
of substantial opposition to the proposal mainly from a host of in-
dependent real estate brokers.
Although real estate investment, brokerage, and management
have not been determined to be nancial in nature, incidental to
a nancial activity, complementary to a nancial activity, or
otherwise permitted by Section 4 of the BHC Act, an FHC may
underwrite, deal, and make markets in securities of companies
engaged in such activities and make controlling and noncontrol-
ling investments in them pursuant to, and subject to the condi-
tions and limitations of, the merchant banking and insurance
company portfolio investment powers as discussed more fully in
Section 10:4[11]. These expanded powers will, however, become
subject to the Volcker Rule when that provision becomes eec-
tive, subject to the Volcker Rule's transition provisions.157
[3] Complementary Activities
Similar to the denitions of nancial and incidental activities,
the BHC Act denes activities that are complementary to a
nancial activity as any activity that the Federal Reserve
determines, by regulation or order, to be both (i) complementary
to a nancial activity and (ii) not a substantial risk to the safety
or soundness of depository institutions or the nancial system
generally.158 Unlike the procedures for adding activities to the list
of nancial or incidental activities, the Federal Reserve is not
required to notify or consult with the Secretary of the Treasury
about whether a particular activity is complementary to a
nancial activity.
An FHC that seeks to engage in, or acquire more than 5% of
the outstanding shares of any class of voting securities of a
company engaged in, an activity that the FHC believes to be
complementary to a nancial activity must obtain prior approval
Inst. 135, 15056 (2001) for a discussion of the activity of banks acting as
nders.
155
12 C.F.R. 225.86(d)(ii).
156
66 Fed. Reg. 307 (Jan. 3, 2001).
157
See 10:8.
158
12 U.S.C.A. 1843(k)(1).
851
from the Federal Reserve by ling a notice in accordance with

Section 4(j) of the BHC Act.159 In deciding whether to approve
such a notice, the Federal Reserve will consider whether the
proposed activity (i) is complementary to a nancial activity, (ii)
would pose a substantial risk to the safety and soundness of any
depository institutions or the nancial system generally, and (iii)
would produce public benets that outweigh its potential adverse
eects.160 The Federal Reserve has observed that its power to des-
ignate certain activities as complementary to an FHC's nancial
activities was intended to permit the Federal Reserve to autho-
rize an FHC to engage, to a limited extent, in activities that ap-
pear to be commercial if a meaningful connection exists between
the proposed commercial activity and the FHC's nancial activi-
ties and the proposed commercial activity would not pose undue
risks to the safety and soundness of the FHC's aliated deposi-
tory institutions or the nancial system.161
The Federal Reserve has exercised its authority to nd two
types of activities to be complementary to nancial activities. In
a series of orders, the Federal Reserve has found that certain
commodities trading activities, energy management services, and
energy tolling arrangements are complementary to the nancial
activity of trading in commodities futures, forwards, and other
contracts.162 The Federal Reserve has also found that certain dis-
ease management and mail-order pharmacy services are comple-
mentary to the nancial activity of underwriting and selling
health insurance.163 In approving these applications, the Federal
Reserve has imposed a number of conditions designed to limit the
potential safety and soundness risks of the complementary activi-
159
12 C.F.R. 225.89(a).
160
12 C.F.R. 225.89.
161
68 Fed. Reg. 68,493 (Dec. 9, 2003).
162
See, e.g., Citigroup, 89 Fed. Res. Bull. 508 (2003) (commodities trading);
Fortis S.A./N.V., 94 Fed. Res. Bull. C20 (2008) (energy management); The Royal
Bank of Scotland Group plc, 94 Fed. Res. Bull. C60 (2008) (energy tolling).
163
Wellpoint, Inc., 93 Fed. Res. Bull. C133 (2007). The Wellpoint order was
issued in the context of an application by Wellpoint to the FDIC to obtain de-
posit insurance for a newly chartered Utah industrial bank. Although Wellpoint
was not a BHC or otherwise subject to the BHC Act at the time of the Federal
Reserve's determination, and would not become a BHC by virtue of acquiring
the Utah industrial bank, see 12 U.S.C.A. 1841(c)(2)(H) (industrial banks
excluded from the term bank for purposes of the BHC Act), Wellpoint
requested the determination because it had led its application with the FDIC
during an FDIC-imposed moratorium that prohibited approval of any such ap-
plications except by applicants engaged exclusively in activities that were
permissible for an FHC. See Moratorium on Certain Industrial Bank Applica-
tions and Notices, 72 Fed. Reg. 5290 (Feb. 5, 2007).
852
ties and to ensure that the proposed activities would produce

public benets that outweighed any potential adverse eects.
These conditions have typically included limits on the market
value of assets acquired as part of the complementary activities,
requirements that the assets be reasonably liquid, and conditions
designed to preserve the separation of banking and commerce.
[4] Exclusivity Requirement
In general, an FHC is not permitted to acquire or retain the
shares of any company in reliance on Section 4(k)(1) of the BHC
Act unless the company is exclusively engaged in activities that
are nancial in nature or incidental to a nancial activity.164 If an
FHC acquires shares of any company that is engaged exclusively
in nonnancial activities or a mixture of nancial and nonnan-
cial activities, the FHC must obtain a determination that the
nonnancial activities are complementary to a nancial activity
or rely on the merchant banking power, the insurance company
portfolio investments authority, the securities underwriting or
dealing power, the QFBO exemptions, Section 4(c)(6) or 4(c)(7) of
the BHC Act, or some other source of authority that specically
permits FHCs to acquire shares of companies engaged in
nonnancial or a mixture of nancial and nonnancial activities,
subject to the conditions of such other source of authority.
There is one exception to this general rule. An FHC may
acquire and retain the shares of any company engaged in mixed
nancial and nonnancial activities if the following conditions
are satised:
E it is substantially engaged in nancial activities, meaning
at least 85% of the company's consolidated total annual gross
revenues is derived from, and at least 85% of the company's
consolidated total assets is attributable to, the conduct of
activities that are nancial in nature, incidental to a
nancial activity, or otherwise permissible under Section
4(c) of the BHC Act;
E the FHC complies with the post-transaction notice require-
ments applicable to such transactions; and
164
See 12 C.F.R. 225.85(a); 66 Fed. Reg. 400, 404 (Jan. 3, 2001). The regula-
tion and release distinguish complementary activities from other permissible
activities, but this is because they are referring to them in the context of post-
transaction notice requirements, which do not apply to complementary activi-
ties, which must be preapproved. See, e.g., 66 Fed. Reg. 404, n.9. See 12 C.F.R.
225.85(a)(2), which makes it clear that companies otherwise required to engage
exclusively in activities that are nancial in nature, incidental to a nancial
activity, or otherwise permissible under Section 4(c) of the BHC Act are, never-
theless, permitted to engage in complementary activities despite the general-
exclusivity requirement.
853
E the FHC causes the company to conform, terminate, or divest

any nonconforming activities within two years of the
company's acquisition by the FHC.165
[5] Securities Underwriting and Dealing
As noted in Section 10:4[1][a], securities underwriting, dealing,
and market making are listed nancial activities.166 As a result,
an FBO that is an FHC may engage in, or own or control a sub-
sidiary exclusively engaged in, such securities activities, as well
as any other activities that are nancial in nature, incidental to a
nancial activity, complementary to a nancial activity, or
otherwise permissible under Section 4 of the BHC Act. These
powers will, however, become subject to the Volcker Rule, includ-
ing its prohibition on proprietary trading and compliance provi-
sions, when the Volcker Rule becomes eective, subject to its
transition provisions.167
Because any company engaged in securities underwriting, deal-
ing, and market-making in the United States must also be
registered as a broker-dealer with, and will be subject to the
supervision and regulation of, the Securities and Exchange Com-
mission (SEC),168 an FBO will virtually always engage in those
securities activities in the United States through a separately
incorporated subsidiary.
The power to engage in securities underwriting, dealing, and
market-making pursuant to Section 4(k)(4)(E) of the BHC Act
extends to all types of securities, including debt and equity secu-
rities, by all types of issuers including banks, companies engaged
in nancial activities, and companies engaged in nonnancial
activities. Unlike the more limited underwriting and dealing
powers that are permissible Sections 4(c)(8) and (13) of the BHC
165
12 C.F.R. 225.85(a)(3).
166
12 U.S.C.A. 1843(k)(4)(E).
167
See 10:8.
168
15 U.S.C.A. 78o; see also 12 C.F.R. 218 (Federal Reserve rules jointly
issued with the Securities and Exchange Commission (SEC) implementing
exceptions for banks from the denition of broker under Section 3(a)(4) of the
Securities Exchange Act of 1934 (Exchange Act)); Exemptions for Banks under
Section 3(a)(5) of the Exchange Act and Related Rules, Release No. 34-56502
(Sept. 24, 2007) (rules implemented by the SEC only regarding the bank exemp-
tions from the denition of dealer). State and federal broker-dealer registra-
tion and change-in-control requirements, as well as state and federal regulation
and supervision of broker-dealers, is beyond the scope of this chapter.
854
Act,169 the power granted by Section 4(k)(4)(E) of the BHC Act is

not subject to revenue, geographical, or other limitations.170
Although there is nothing in the statute or regulations
expressly imposing any maximum holding period on securities
acquired by an FHC as a securities underwriter, dealer, or mar-
ket maker pursuant to Section 4(k)(4)(E) of the BHC Act, implicit
in the notion of underwriting securities is that the securities are
acquired with a bona de intent to resell them as promptly as
possible rather than to hold them for investment purposes.
Similarly, dealing and market-making in securities is generally
understood to be the practice of holding oneself out to the public
as willing to buy or sell securities in specied volumes at speci-
ed prices and therefore typically results in the securities being
turned over on a regular basis rather than being held for
investment. In general, the Federal Reserve would likely expect
securities acquired pursuant to this power to be disposed of or
turned over within a relatively short period of time, typically
within 30 to 60 days.171 If an FHC or its securities aliate decides
to hold securities for investment purposes, instead of for bona
169
12 U.S.C.A. 1843(c)(8), (13); J.P. Morgan & Co., Incorporated, et al., 75
Fed. Res. Bull. 192 (1989), a'd sub nom. Securities Industry Ass'n v. Board of
Governors of the Federal Reserve System, 900 F.2d 360 (D.C. Cir. 1990);
Citicorp, et al., 73 Fed. Res. Bull. 473 (1987), a'd sub nom. Securities Industry
Ass'n v. Board of Governors of the Federal Reserve System, 839 F.2d 47 (2d Cir.
1988), cert. denied, 486 U.S. 1059 (1988) as modied by the Modications to
Section 20 Orders, 75 Fed. Res. Bull. 751 (1989), and 10 Percent Revenue Limit
on Bank-Ineligible Activities of Subsidiaries of Bank Holding Companies
Engaged in Underwriting and Dealing in Securities, 61 Fed. Reg. 48,953 (1996),
and Revenue Limit on Bank-Ineligible Activities of Subsidiaries of Bank Holding
Companies Engaged in Underwriting and Dealing in Securities, 61 Fed. Reg.
68,750 (1996) (revenue limits); 12 C.F.R. 211.10(a)(14) and (15) (geographical
limits).
170
See 66 Fed. Reg. 400, 406 (Jan. 3, 2001).
171
See, e.g., 12 C.F.R. 211.10(a)(15)(iv)(C) (treating securities acquired pur-
suant to an underwriting commitment as an investment if held for more than
90 days); 12 U.S.C.A. 1841(a)(5)(B) (exempting acquisitions of bank and BHC
securities from the prior approval requirements of Section 3 of the BHC Act if
acquired in connection with an underwriting of such securities but only if the
shares are held for such period of time as will permit the sale thereof on a rea-
sonable basis). J.P. Morgan & Co., Incorporated, et al., 75 Fed. Res. Bull. 192
(1989), a'd sub nom. Securities Industry Ass'n v. Board of Governors of the
Federal Reserve System, 900 F.2d 360 (D.C. Cir. 1990); Citicorp, et al., 73 Fed.
Res. Bull. 473 (1987), a'd sub nom. Securities Industry Ass'n v. Board of
Governors of the Federal Reserve System, 839 F.2d 47 (2d Cir. 1988), cert.
denied, 486 U.S. 1059 (1988) as modied by Modications to Section 20 Orders,
75 Fed. Res. Bull. 751 (1989), and 10 Percent Revenue Limit on Bank-Ineligible
Activities of Subsidiaries of Bank Holding Companies Engaged in Underwriting
and Dealing in Securities, 61 Fed. Reg. 48,953 (1996), and Revenue Limit on
855
de underwriting, dealing, or market-making purposes, or nds

itself with securities that it cannot resell on a reasonable basis
for more than 90 to 180 days despite bona de eorts to do so,
the FHC would likely need to nd another source of authority to
continue holding such securities such as the merchant banking
power.
[6] Insurance Underwriting
Underwriting life, health, property, and casualty and other
types of insurance is also a listed nancial activity.172 As a result,
an FBO that is an FHC may engage in, or own or control a sub-
sidiary exclusively engaged in, such insurance underwriting
activities, as well as any other activities that are nancial in
nature, incidental to a nancial activity, complementary to a
nancial activity, or otherwise permissible under Section 4 of the
BHC Act. In addition, the Federal Reserve has determined that
certain disease management and mail-order pharmacy services
are complementary to the nancial activity of underwriting and
selling health insurance, subject to certain conditions.173 Because
complementary activities are only permissible if specically
permitted for a specic FHC, any other FHC would be required
to obtain its own approval from the Federal Reserve before com-
mencing to engage in those activities.
The Federal Reserve will not necessarily treat all of the activi-
ties of an insurance aliate as permissible insurance or other
nancial activities despite the broad wording of Section 4(k)(4)(B)
of the BHC Act. Insurance companies are not generally subject to
the same activities and investment restrictions as FHCs. As a
result, they are free to engage in certain activities that may not
fall within any of the activities listed as nancial in nature or
incidental to a nancial activity or otherwise permissible under
Section 4 of the BHC Act. Unless the Federal Reserve determines
that any such nonnancial activities are complementary to a
nancial activity, an FBO may be precluded from acquiring or
maintaining more than 5% of the voting shares of an insurance
company unless the nonnancial activities are terminated or
transferred to a separate company that can be held under, and
subject to the conditions of, the merchant banking power or the
insurance company portfolio investments authority.
Bank-Ineligible Activities of Subsidiaries of Bank Holding Companies Engaged

in Underwriting and Dealing in Securities, 61 Fed. Reg. 68,750 (1996) (revenue
limits).
172
12 U.S.C.A. 1843(k)(4)(B).
173
Wellpoint, Inc., 93 Fed. Res. Bull. C133 (2007).
856
Although the regulation of insurance companies is almost

exclusively a matter of state law in the United States,174 federal
law preempts state antialiation laws that would otherwise
prevent or restrict aliations between depository institutions
(including foreign banks with a U.S. commercial banking pres-
ence) and insurance companies other than prior approval, infor-
mation collection, capital maintenance or restoration, or similar
requirements that do not discriminate against depository institu-
tions (including foreign banks with a U.S. commercial banking
presence).175 Federal law also preempts state laws that would
otherwise regulate the insurance activities of a depository institu-
tion (including a foreign bank with a U.S. commercial banking
presence) or its aliates that are otherwise permitted by federal
law in a manner that discriminates against the depository institu-
tion or its aliates.176 Finally, federal law preempts state law
that would otherwise interfere with the ability of an insurer or
its aliates to acquire a depository institution (including a
foreign bank with a U.S. commercial banking presence) or to
elect to become an FHC177 or limit the amount of an insurer's as-
sets that may be invested in the voting securities of a depository
institution or any company that controls such an institution.178
The state of an insurer's domicile may, however, limit the amount
of an insurer's assets that may be invested in the voting securi-
ties of a depository institution or a company controlling such an
institution to an amount that is not less than 5% of the insurer's
admitted assets.179
[7] Merchant Banking
Section 4(k)(4)(H) of the BHC Act permits an FHC to make
controlling and noncontrolling investments in the shares, assets,
or other ownership interests of a company or other entity that is
engaged in any activity that is not nancial in nature, incidental
to a nancial activity, complementary to a nancial activity, or
174
State insurance licensing and change-in-control requirements, as well as
state regulation and supervision of insurance companies, are beyond the scope
of this chapter.
175
15 U.S.C.A. 6701(c), (g)(3).
176
15 U.S.C.A. 6701(e).
177
15 U.S.C.A. 6715(1).
178
15 U.S.C.A. 6715(2).
179
15 U.S.C.A. 6715(2). See, e.g., N.Y. Ins. Law 1301 (McKinney) for
denitions of admitted assets.
857
otherwise permitted by Section 4 of the BHC Act,180 subject to the

following conditions:
E the investment is not made or held by a U.S. depository
institution (including any FDIC-insured U.S. branch of a
foreign bank) or by a subsidiary of a U.S. depository institu-
tion;181
E the investment is made as part of a bona de underwriting
or merchant or investment banking activity, including
investment activities engaged in for the purpose of apprecia-
tion and ultimate resale or disposition of the investment;182
E the FHC has (i) a registered securities aliate or (ii) both
(A) an insurance company aliate that is predominantly
engaged in underwriting life, accident and health, or prop-
erty and casualty insurance (other than credit-related insur-
ance) or providing and issuing annuities and (B) a registered
investment adviser aliate that provides advice to an insur-
ance company;183
E the investment is held only for a period of time to enable the
sale or disposition thereof on a reasonable basis consistent
with the nancial viability of the merchant banking invest-
ment activities;184 and
E the FHC does not routinely manage or operate the company
in which the investment is made except as may be necessary
or required to obtain a reasonable return on investment
upon resale or disposition.185
The merchant banking power overlaps with several other
sources of authority for investments in nonnancial companies
including the securities underwriting, dealing, and market-
making power contained in Section 4(k)(4)(E) of the BHC Act; the
insurance company portfolio investment power contained in
Section 4(k)(4)(I); investments made under Sections 4(c)(6) and
(7); and investments made under Section 4(c)(13), the QFBO
exemptions, and Regulation K. To the extent that any of these
provisions overlap, they are alternative sources of authority for
the same investments but with dierent conditions and
180
12 U.S.C.A. 1843(k)(4)(H); 12 C.F.R. 225.177(c).
181
12 U.S.C.A. 1843(k)(4)(H)(i); 12 C.F.R. 225.170(d).
182
12 U.S.C.A. 1843(k)(4)(H)(ii); 12 C.F.R. 225.170(b).
183
12 U.S.C.A. 1843(k)(4)(H)(ii); 12 C.F.R. 225.170(f). It suces if a bank
has a separate and identiable department or division that is registered as a
municipal securities dealer. 12 C.F.R. 225.170(f)(1)(ii).
184
12 U.S.C.A. 1843(k)(4)(H)(iii); 12 C.F.R. 225.172(a).
185
12 U.S.C.A. 1843(k)(4)(H)(iv); 12 C.F.R. 225.171(a).
858
limitations. An FHC is free to choose whichever source of author-

ity gives it the most exibility with the least burden under any
particular circumstances.186
To the extent that investments under the merchant banking
power are made through hedge funds and private equity funds,
both the merchant banking power and these alternative sources
of authority will become subject to the Volcker Rule, including its
restrictions on investments in or through, and certain relation-
ships with, hedge funds and private equity funds, when the
Volcker Rule becomes eective, subject to its transition
provisions.187
The merchant banking authority permits an FHC to make
investments in any company or other entity that is engaged in
any activity that is not nancial in nature, incidental to a
otherwise permitted by Section 4 of the BHC Act. This includes
companies that are engaged exclusively in nonnancial activities,
as well as companies that are engaged in mixed nancial and
nonnancial activities. Neither the statute nor the implementing
regulations impose any minimum percentage or other threshold
on the amount of nonnancial activities in which a company or
other entity must engage in order to be an eligible merchant
banking investment. Thus, unless a company or other entity is
engaged exclusively in activities that are nancial in nature,
incidental to a nancial activity, complementary to a nancial
activity, or otherwise permitted by Section 4 of the BHC Act, it is
an eligible merchant banking investment, subject to the condi-
tions and limitations of such investments.
If a company or other entity is engaged exclusively in activities
that are permissible by Section 4 of the BHC Act, the investment
is permissible under Section 4(k)(1) of the BHC Act, but it is not
an eligible merchant banking investment.188 If a company is
engaged in a mixture of nancial and nonnancial activities, but
is substantially engaged in nancial activities (meaning that its
nancial activities, activities that are incidental to a nancial
activity, and activities permissible under Section 4(c) of the BHC
Act account for at least 85% of the company's assets and
revenues), the FHC has a choice in making any investment in
186
66 Fed. Reg. 8466, 8469 (Jan. 31, 2001).
187
See 10:8.
188
66 Fed. Reg. 8466, 8468 to 8469 (Jan. 31, 2001).
859
the company. The FHC is permitted to make the investment

under the merchant banking power, subject to the conditions and
limitations of that power, or it may make the investment under
Section 4(k)(1), subject to the requirement that it terminate any
nonconforming activities, or obtain a determination from the
Federal Reserve that the nonconforming activities are comple-
mentary to a nancial activity, within two years of making the
investment.189 An FHC might choose the second authority if it
wanted to be involved in the routine management or operation of
the company or hold the investment for more than the maximum
holding period for a merchant banking investment.
[b] Bona Fide Investment Banking Activity
The BHC Act requires merchant banking investments to be
made as part of a bona de underwriting or merchant- or
investment-banking activity.190 The Federal Reserve has stated
that this requirement was intended to distinguish between
merchant banking investments that . . . are made for purposes
of resale or other disposition, and investments that are made for
purposes of allowing the [FHC] to engage in the nonnancial
activities conducted by the portfolio company.191 It preserves the
nancial nature of merchant banking investment activities and
helps further the . . . purpose of maintaining the separation of
banking and commerce.192 The Federal Reserve has said that it
will monitor compliance with the bona de requirement through
the supervisory process to make sure that the merchant banking
power is not used by an FHC to become impermissibly involved
in nonnancial activities, such as real estate investment or
development.193 Although the bona de requirement does not
prohibit an FHC from making investments in real estate invest-
ment or management companies or from concentrating its invest-
ments in any other particular sector, the Federal Reserve might
scrutinize an FHC's compliance with the bona de requirement if
it makes merchant banking investments only in real estate
investment or development companies.194
189
See 12 C.F.R. 225.85(a)(3).
190
12 U.S.C.A. 1843(k)(4)(H)(ii); 12 C.F.R. 225.170(b).
191
66 Fed. Reg. 8,466, 8,469 (Jan. 31, 2001).
192
66 Fed. Reg. 8,466, 8,469 (Jan. 31, 2001).
193
66 Fed. Reg. 8,466, 8,469 (Jan. 31, 2001).
194
See 66 Fed. Reg. 8,466, 8,469 (Jan. 31, 2001). Real estate investment and
development are not nancial activities. See 66 Fed. Reg. 8466, 8469 (Jan. 31,
2001); 65 Fed. Reg. 16,460, 16,463 (Mar. 28, 2000) (interim rule).
860

Although the statute does not make any distinction between
investments in the shares or assets of a company, the Federal
Reserve's implementing regulations prohibit an FHC from mak-
ing investments in assets unless the following conditions are
satised:
E The assets are held by or promptly transferred to a portfolio
company;
E The portfolio company maintains policies, books and records,
accounts, and other indicia of corporate, partnership, or
limited liability organization and operation that are sepa-
rate from the FHC and limit the legal liability of the FHC
for obligations of the portfolio company; and
E The portfolio company has management that is separate
from the FHC to the extent required by the restriction on
routine management or operation of the portfolio company.195
The statute provides that an FHC may not routinely manage
or operate any company acquired under the merchant banking
power except as may be necessary or required to obtain a rea-
sonable return on investment upon resale or disposition.196 This
restriction does not prevent an FHC from controlling up to 100%
of the board of directors or similar governing body of a portfolio
company as long as the portfolio company employs ocers and
employees responsible for routinely managing and operating the
company, and the board does not participate in routine manage-
ment or operation of the company, even if the board has the
authority to do so under applicable corporate law.197
An FHC is deemed to be engaged in the routine management
or operation of a portfolio company if any of the following exist:
E Any director, ocer, or employee of the FHC or any of its se-
curities, depository institution, merchant banking, small
business investment corporation, or certain other equity
investing subsidiaries serves as, or has the responsibilities
of, an executive ocer of the portfolio company;198
E Any executive ocer of the FHC or any of its securities, de-
195
12 C.F.R. 225.170(e).
196
12 U.S.C.A. 1843(k)(4)(H)(iv); see also 12 C.F.R. 225.171(a).
197
12 C.F.R. 225.171(d)(1).
198
The term executive ocer is dened by 12 C.F.R. 225.177(d) as any
person who participates or has the authority to participate (other than in the
capacity as a director) in major policymaking functions of the company, whether
861
pository institution, merchant banking, small business

investment corporation, or certain other equity-investment
subsidiaries serves as, or has the responsibilities of, an of-
cer or employee of the portfolio company; or
E Negative covenants restricting the portfolio company's abil-
ity to make routine business decisions, such as entering into
transactions in the ordinary course of business.199
An FHC is presumed, subject to rebuttal, to be engaged in the
routine management or operation of a portfolio company if any of
the following exist:
E Any director, ocer, or employee of the FHC serves as, or
has the responsibilities of, a nonexecutive ocer or employee
of the portfolio company; or
E Any ocer or employee of the portfolio company is supervised
by any director, ocer, or employee of the FHC (other than
in that individual's capacity as a director of the portfolio
company).200
The following arrangements are not considered routine
management or operation of a portfolio company:
E Negative covenants limited to restricting the portfolio
company's ability to take actions on matters that are not in
the ordinary course of businessthat is, actions that cus-
tomarily require board or shareholder action;201
E Providing nancial, investment, and management consult-
ing advice in a manner consistent with and subject to any
restrictions on routine management or operations;202
E Providing underwriting and private placement services to a
portfolio company in connection with the portfolio company's
securities;203 or
E Meeting with ocers or employees of the portfolio company
or not the ocer has an ocial title, the title designates the ocer as an assis-
tant, or the ocer serves without salary or other compensation.
199
12 C.F.R. 225.171(b)(1).
200
12 C.F.R. 225.171(b)(2).
201
12 C.F.R. 225.171(d)(2). See also Letter from J. Virgil Mattingly,
General Counsel of the Federal Reserve, to Peter T Grauer, Credit Suisse First
Boston (Dec. 21, 2001).
202
12 C.F.R. 225.171(d)(3)(i).
203
12 C.F.R. 225.171(d)(3)(ii).
862
to monitor or provide advice in connection with the portfolio

company's performance or activities.204
Notwithstanding the general prohibition on routine manage-
ment or operation of portfolio companies, an FHC (other than
any U.S. depository institution subsidiary or the U.S. branch or
agency of a foreign bank) is permitted to engage in the routine
management or operations of a portfolio company on a temporary
basis if necessary or required to obtain a reasonable return on
the investment in the portfolio company upon resale or other
disposition. 205 An FHC may routinely manage or operate a
portfolio company only for the period of time as may be necessary
to address the cause of the FHC's involvement, to obtain suitable
alternative management arrangements, to dispose of the invest-
ment, or otherwise to obtain a reasonable return upon the resale
or other disposition of the investment.206 However, an FHC may
not routinely manage or operate a portfolio company for a period
greater than nine months without prior written notice to the
Federal Reserve.207 An FHC must maintain and make available
to the Federal Reserve upon request a written record describing
its involvement in routinely managing or operating a portfolio
company.208
The restriction on routine management or operation of a
portfolio company applies to both majority and minority
investments. Its chief impact on minority investments is to limit
the negative covenants, or veto rights, that an FHC may have
over certain corporate actions. Such negative covenants must be
limited to matters that are not in the ordinary course of busi-
nessthat is, matters that customarily require board or share-
holder action. The negative covenants may not extend to matters
that constitute routine management or operations. The Federal
Reserve has issued an interpretive letter with a list of examples
of matters over which negative covenants are permissible, consis-
tent with the restriction on routine management or operations.209
204
12 C.F.R. 225.171(d)(3)(iii).
205
12 U.S.C.A. 1843(k)(4)(H)(iii); 12 C.F.R. 225.171(e).
206
12 C.F.R. 225.171(e)(2).
207
12 C.F.R. 225.171(e)(3).
208
12 C.F.R. 225.171(e)(4).
209
Letter from J. Virgil Mattingly, General Counsel of the Federal Reserve,
to Peter T. Grauer, Credit Suisse First Boston (Dec. 21, 2001), which sets forth
examples of negative covenants that an FHC may enter into with a portfolio
863
[f] Limited Holding Period

The Federal Reserve has interpreted the requirement that a
merchant banking investment be limited to a period of time to
enable the sale or disposition thereof on a reasonable basis210 as
meaning that an FHC generally may hold a merchant banking
investment for a maximum of 10 years except that a merchant
banking investment held through a qualied private equity fund
may be held for the duration of the fund (which may not exceed
15 years).211 Investments made through a qualied private equity
fund, however, will become subject to the Volcker Rule, including
its restrictions on investments in or through, and certain relation-
provisions.212
If an FHC, a controlled qualied private equity fund, or any
other aliate of the FHC acquires an investment in a portfolio
company from an aliate that was previously held under the
merchant banking rule or any other provision of the Federal
banking laws that imposes a limited holding period, the acquir-
ing company must tack onto its holding period the amount of
time that such aliate has held such investment for purposes of
determining the acquiring company's compliance with the ap-
plicable maximum holding period under the merchant banking
power.213 In unusual circumstances, an FHC may seek Federal
Reserve approval to hold an interest in a portfolio company in
excess of the applicable maximum holding period.214 However, an
FBO that holds a merchant banking investment in excess of the
applicable maximum holding period must abide by any restric-
tions that the Federal Reserve may impose in connection with
granting approval of the extension of the holding period.215
[g] Qualied Private Equity Funds
FHCs are permitted to make merchant banking investments
through private equity funds, which are generally structured as
limited partnerships or other investment vehicles that pool the
company without being deemed to be engaged in the routine management or

operation of the portfolio company. See also 12 C.F.R. 225.171(d)(2).
210
12 U.S.C.A. 1843(k)(4)(H)(iii).
211
12 C.F.R. 225.172(b)(1), 225.173(c)(1).
212
See 10:8.
213
12 C.F.R. 225.172(b)(2), (3), 225.173(c)(3).
214
12 C.F.R. 225.172(b)(4), (5), 225.173(c)(2).
215
12 C.F.R. 225.172(b)(6)(ii), 225.173(c)(2).
864
FHC's capital with capital provided by third-party investors.

These third-party investors typically are institutional investors
such as other investment companies, pension funds, endowments,
nancial institutions or corporations, and sophisticated individ-
ual investors with high net worth. In most instances, the FHC is
the sponsor or advisor to the fund and has a general partnership
or similar interest in the fund.
Investments made through a qualied private equity fund,
however, will become subject to the Volcker Rule, including its
restrictions on investments in or through, and certain relation-
provisions.216
Under the merchant banking rule, an investment in a private
equity fund qualies for a longer holding period if the fund satis-
es the following conditions:
E It was formed for the purpose of and is engaged exclusively
in the business of investing in shares, assets, and ownership
interests of nancial and nonnancial companies for resale
or other disposition;
E It is not an operating company;
E The FHC and its directors, ocers, employees, and principal
shareholders do not hold, own, or control more than 25% of
the total equity of the fund;217
E The fund has a maximum term of not more than 15 years;
and
E It is not formed or operated for the purpose of making invest-
ments inconsistent with the merchant banking power or
evading the limitations on merchant banking investments.218
An FHC is permitted to make both controlling and noncontrol-
ling investments in qualied private equity funds. Regulation Y
denes situations in which an FHC is considered to control a
qualied private equity fund.219 An FHC is deemed to control a
qualied private equity fund if the FHC, including any director,
ocer, employee, or principal shareholder of the FHC:
216
See 10:8.
217
When the Volcker Rule becomes eective, subject to its transition period,
an FHC will no longer be permitted to own, as principal or benecial owner,
more than 3% of the equity, partnership, or other ownership interests of a
private equity fund. See 10:8.
218
12 C.F.R. 225.173(a).
219
12 C.F.R. 225.173(d)(4).
865
E serves as general partner, managing member, or trustee of

the private equity fund;
E owns or controls 25% or more of any class of voting shares or
similar interests in the fund;220
E in any manner selects, controls, or constitutes a majority of
the directors, trustees, or management of the fund; or
E owns or controls more than 5% of any class of voting shares
or similar interests in the private equity fund and is the
investment adviser to the fund.221
If an FHC is deemed to control a qualied private equity fund,
the FHC will be deemed to control the fund's investments in
portfolio companies. As a result, the FHC will be responsible for
ensuring that the qualied private equity fund complies with the
prohibition against routine management or operation of portfolio
companies and the maximum holding period. In contrast, if an
FHC has a noncontrolling interest in a qualied private equity
fund, the investments of the private equity fund are not attribut-
able to the FHC; such a qualied private equity fund may
routinely manage or operate its portfolio companies and hold its
investments in portfolio companies indenitely without causing
the FHC to be in violation of the BHC Act, subject to the Volcker
Rule, when that provision becomes eective.222
An FHC's controlling or noncontrolling investment in a quali-
ed private equity fund (in contrast to any investments in
portfolio companies attributable to the FHC by virtue of control-
ling a qualied private equity fund) is, by denition, an invest-
ment in a company that is engaged exclusively in activities that
are nancial in nature. As a result, an FHC may routinely man-
age or operate a qualied private equity fund.223 In contrast, both
the FHC and any qualied private equity fund that is controlled
by the FHC must comply with the limits on routine management
or operation and on maximum holding periods with respect to
any investments by the qualied private equity fund in portfolio
220
When the Volcker Rule becomes eective, subject to its transition and
seeding period, an FHC will no longer be permitted to own, as principal or ben-
ecial owner, more than 3% of the equity, partnership, or other ownership
interests of a private equity fund. See 10:8[3].
221
12 C.F.R. 225.173(d)(4).
222
See 10:8.
223
As noted in 10:4[7][g], to the extent that routine management or opera-
tion of a private equity funds requires that an FHC sponsor the fund, the
FHC must comply with the asset management exemption in the Volcker Rule.
The Volcker Rule does not place any limits on serving strictly as investment
adviser to a private equity fund.
866
companies.
An FHC is also permitted to make controlling investments in
private equity funds that do not satisfy the conditions of qualied
private equity funds, subject to the Volcker Rule when it becomes
eective.224 If the investment is a controlling one in a nonquali-
ed private equity fund (e.g., a fund such as a hedge fund formed
as a company with unlimited life) that is otherwise exclusively
engaged in activities that are nancial in nature, incidental to a
otherwise permitted by Section 4 of the BHC Act, the only conse-
quence is that the FHC must comply with the 10-year maximum
holding period and the restrictions on routine management or
operation of portfolio companies as if the portfolio investments
were made directly by the FHC. If the investment is a controlling
or noncontrolling one in a nonqualied private equity fund that
engages in any activity not permitted by Section 4 of the BHC
Act, then the FHC must treat its investment in the private equity
fund itself as a merchant banking investment in a portfolio
company, subject to the maximum holding period and restriction
on routine management or operation at the level of the private
equity fund itself or under some other source of authority other
than Section 4(k)(1) of the BHC Act. Finally, if the investment is
a noncontrolling one in a nonqualied private equity fund (e.g., a
hedge fund formed as an unlimited life company) that is
otherwise exclusively engaged in activities that are nancial in
nature, incidental to a nancial activity, complementary to a
nancial activity, or otherwise permitted by Section 4 of the BHC
Act, the investment will be permissible under Section 4(k)(1), and
the merchant banking limitations will not be applicable either at
the level of the private equity fund or its portfolio companies,225
subject to the Volcker Rule, when that provision becomes
eective.226
[h] After-the-Fact Notice Requirements
An FHC is required to provide the Federal Reserve with notice
within 30 days after the closing of any merchant banking invest-
ment in which the FHC directly or indirectly acquires more than
5% of the shares, assets, or other ownership interests of a
portfolio company if the aggregate acquisition cost of such invest-
224
See 10:8.
225
See 66 Fed. Reg. 8466, 8477 (Jan. 31, 2001), which is not entirely consis-
tent with the description in the text, which is based on the plain language and
purposes of Section 4(k) of the BHC Act.
226
See 10:8.
867
ment exceeds the lesser of 5% of the FHC's Tier 1 capital and

$200 million.227 It is also required to provide any notice that the
Federal Reserve otherwise deems to be necessary in the exercise
of its supervisory authority.228 Otherwise, an FHC is generally
not required to obtain prior approval for, or otherwise provide
before- or after-the-fact notice of, any merchant banking invest-
ment except as described in Section 10:5[2]. If an after-the-fact
notice is required, the notice is provided on Form FR Y-10.
[i] Risk Management, Record-Keeping, and
Reporting
An FHC, including a private equity fund controlled by an FHC,
that makes merchant banking investments must establish and
maintain policies, procedures, records, and systems reasonably
designed to conduct, monitor, and manage such investments and
the risks associated with such investments in a safe and sound
manner.229 In addition, the Division of Banking Supervision and
Regulation of the Federal Reserve has issued a supervisory letter
entitled Supervisory Guidance on Equity Investment and
Merchant Banking Activities (the Guidance Letter).230 The Guid-
ance Letter describes in detail the internal controls and risk
management policies, procedures, and systems that the Federal
Reserve expects bank holding companies engaged in equity
investment activities to have and to maintain in order to conduct
such activities in a safe and sound manner. The Guidance Letter
notes that foreign banks should incorporate the basic principles
set forth in the Guidance Letter into their U.S. operations with
appropriate adaptation to reect the fact that those operations
are an integral part of a foreign bank, which should be managing
its risks on a consolidated basis and that the bank is subject to
overall supervision by its home-country authorities.231
The risk management, record-keeping, and reporting require-
ments of Regulation Y and the Guidance Letter can be summa-
rized as follows. These requirements will likely be updated after
the Volcker Rule becomes eective, subject to its transition
provisions.
227
12 C.F.R. 225.87(b)(4)(i).
228
12 C.F.R. 225.87(b)(4)(iii).
229
12 C.F.R. 225.175(a)(1).
230
SR Letter No. 00-9 (SPE) (June 22, 2000).
231
SR Letter No. 00-9 (SPE), Attachment, at 3 (June 22, 2000).
868
[i] Internal Risk Management Requirements

FHCs engaged in merchant banking investment activities are
required to establish policies, procedures, and systems and
maintain records reasonably designed to:
E Monitor and assess the carrying value, market value, and
performance of each investment and such values of the
FHC's aggregate merchant banking investment portfolio;
E Identify and manage the market, credit, concentration, and
other risks associated with merchant banking investments;
E Identify, monitor, and assess the terms, amounts, and risks
arising from transactions and relationships (including
contingent fees or contingent interests) between the FHC
and the portfolio companies;
E Ensure the maintenance of corporate separateness between
the FHC and the portfolio companies in order to protect the
FHC and its depository institution subsidiaries from legal li-
ability for the operations conducted and nancial obligations
of any of the portfolio companies; and
E Ensure compliance with Subpart J (Merchant Banking
Investments) of Regulation Y and other provisions of law
governing transactions and relationships between the FHC
and portfolio companies.232
In addition, the Guidance Letter recommends that FHCs imple-
ment sound management practices.233 These practices include:
E Oversight: Active oversight by the FHC's board of directors
and senior management. The board should approve portfolio
objectives and investment strategies and policies, limits on
aggregate investment and exposure amounts, types of invest-
ments, and diversication-related aspects of equity
investments. The board should actively monitor the perfor-
mance and risk prole of the equity investment business in
light of its established objectives, strategies, and policies.
The board should ensure that there is an eective manage-
ment structure for conducting the institution's equity activi-
ties, including adequate systems for measuring, monitoring,
controlling, and reporting on the risks of equity investments,
and should specify lines of authority and responsibility for
acquisition and sales of investments.234
Senior management must ensure that there are adequate poli-
232
12 C.F.R. 225.175(a)(1).
233
See SR Letter No. 00-9 (SPE), Attachment, at 3 (June 22, 2000).
234
869
cies, procedures, and management information systems for

managing equity investment activities on a day-to-day and
longer-term basis and that there is competent sta.235
E Management of the Investment Process:
E Policies and Limits: The FHC must have eective poli-
cies that: (i) govern the types and amounts of invest-
ments that may be made; (ii) provide guidelines on ap-
propriate holding periods for dierent types of
investments; (iii) establish parameters for portfolio di-
versication;236 (iv) govern compensation arrangements,
including coinvestment structures and sales of portfolio
company interests by employees of the FHC;237 (v) gov-
ern the terms and conditions of employee loans and sales
of participants' interests prior to the release of the lien
securing such loans in connection with key employees'
coinvestments;238 and (vi) limit the legal liability of the
FHC and its aliates for the nancial obligations and
liabilities of the portfolio companies.239
E Procedures: The FHC must have procedures for assess-
ing, approving, and reviewing investments based upon
the size, nature, and risk prole of an investment. These
include: (i) analytical assessments of investment op-
portunities and formal approval process; (ii) internal
risk rating for equity investments; (iii) periodic and
timely review of the FHC's equity investments; (iv) valu-
ation accounting policies and procedures; (v) exit strate-
gies; (vi) policies and procedures to govern the sale,
exchange, or other disposition of the FHC's investments;
(vii) internal methods for allocating economic capital
based on the risk inherent in the investment activities;
and (viii) terms and conditions of employee loans and
sales of participants' interests prior to the release of the
liens securing such loans in connection with key em-
ployees' coinvestments.240
E Control System: The FHC must have an adequate system of
internal controls, with appropriate checks and balances and
clear audit trails, that focuses on all of the elements of the
235
236
237
238
239
240
See SR Letter No. 00-9 (SPE), Attachment, at 610, 12 (June 22, 2000).
870
investment management process including: (i) the ap-

propriateness of existing policies and procedures; (ii) the
adherence to policies and procedures; (iii) the integrity and
adequacy of investment valuations, risk identication,
regulatory compliance, and management reporting; (iv)
departures from policies and procedures; and (v) compliance
with all federal laws and regulations applicable to an FHC's
investment activities (in particular, compliance with the
prohibition on impermissible control over equity investments
and compliance with restrictions on cross-marketing be-
tween depository institutions and portfolio companies of
FHCs).241
The policies and procedures described above are expected to be
at the top-tier FHC level and applied by it on a consolidated
basis to its subsidiaries. Accordingly, any subsidiary of an FHC
should be informed of the policies and procedures that it would
be expected to follow when engaged in merchant banking invest-
ments, including reporting requirements to the parent FHC.
[ii] Record-Keeping Requirements
Regulation Y requires FHCs to keep records designed to
conduct, monitor, and manage the investment activities and the
risks associated with such investments in a safe and sound
manner.242
The Guidance Letter recommends the following record-keeping
measures:243
E documentation of key elements of the investment process,
including initial due diligence, approval reviews, valuation,
and disposition;
E documentation of board-approved objectives, strategies, poli-
cies, and procedures;244
E records of transactions between an FHC and companies held
under the merchant banking investment authority, speci-
cally documentation of transactions that are not on market
terms;
E documentation of incentive arrangements in connection with
controlling or advising a fund, including the carrying value
and market value of the arrangement and amounts that
may be payable based on future asset performance; and
241
See SR Letter No. 00-9 (SPE), Attachment, at 1011(June 22, 2000).
242
12 C.F.R. 225.175(a)(1).
243
244
See SR Letter No. 00-9 (SPE), Attachment, at 4, 11 (June 22, 2000).
871
E documentation of the legal separation between the FHC and

the portfolio company.245
[iii] Reporting Requirements
Upon request by the Federal Reserve or the appropriate
Federal Reserve Bank, an FHC must make the policies, proce-
dures, and records maintained with respect to its merchant bank-
ing investments available to the Federal Reserve or the Federal
Reserve Bank.246 Furthermore, an FHC must provide reports to
the appropriate Federal Reserve Bank in such format and at
such times as the Federal Reserve may prescribe.247
[iv] Disclosure of Merchant-Banking Investment
Activities
The Guidance Letter recommends that FHCs adequately dis-
close to the public relevant information that is necessary for the
markets to assess the risk proles and performance of their
merchant banking investment activities. FHCs are encouraged to
disclose information relating to:
E The size of their merchant banking investment portfolios;
E The types and nature of their merchant banking investments
such as direct/indirect, domestic/international, public/
private, and equity/debt with conversion rights;
E The initial cost, carrying value, and fair value of invest-
ments and, where applicable, comparisons to publicly quoted
share values of portfolio companies;
E The accounting techniques and valuation methodologies,
including key assumptions and practices aecting valuation
and changes in those practices;
E The realized gains and losses arising from sales and unreal-
ized gains and losses; and
E Any insights regarding the potential performance of equity
investments under alternative market conditions.248
[v] Institutions Lending to or Engaging in Other
Transactions with Portfolio Companies
Additional risk management issues may arise when a U.S.
insured depository institution subsidiary of an FHC or the U.S.
branch or agency of a foreign bank lends to or has other business
relationships with: (i) a company in which the FHC or an aliate
245
246
12 C.F.R. 225.175(a)(2).
247
12 C.F.R. 225.175(b).
248
872
has invested (i.e., a portfolio company); (ii) the general partner or

manager of a private equity fund that has also invested in a
portfolio company; or (iii) a private equity-nanced company in
which the FHC does not hold a direct or indirect ownership inter-
est but that is an investment or portfolio company of a general
partner or fund manager with which the FHC has other
investments. Given their potentially higher than normal risk at-
tributes, FHCs should devote special attention to ensuring that
the terms and conditions of such lending relationships are at
arm's length and are consistent with the lending policies and
procedures of the institution. Similar issues may arise in the
context of derivatives transactions with or guaranteed by portfolio
companies and general partners.249
Where a U.S. insured depository institution subsidiary of an
FHC, or the U.S. branch or agency of a foreign bank, lends to a
private equity-nanced company in which the FHC has no equity
interest but where the borrowing company is a portfolio invest-
ment of private equity fund managers or general partners with
which the FHC may have other private equity-related relation-
ships, care must be taken to ensure that the extension of credit is
conducted on reasonable terms.250
[vi] Private Equity and Other Funds
If an FHC controls a private equity fund or other fund that
makes merchant banking investments, the FHC must ensure
that the fund has established the types of policies, procedures,
and systems and maintains the types of records described in
Regulation Y for making and monitoring the fund's merchant
banking investments, or, alternatively, the FHC may ensure that
the fund is subject to the FHC's merchant banking policies,
249
See SR Letter No. 00-9 (SPE), Attachment, at 13 (June 22, 2000). Lend-
ing and other business transactions between an insured depository institution
and a portfolio company that meets the denition of an aliate must be negoti-
ated on an arm's-length basis in accordance with Section 23B of the FRA, 12
U.S.C.A. 371c-1. See 10:6[6]. The FHC should have systems and policies in
place to monitor transactions between the FHC, or a nondepository institution
subsidiary of the FHC, and a portfolio company. (These transactions are not
typically governed by Section 23B.) An FHC should assure that the risks of
these transactions, including exposures of the FHC on a consolidated basis to a
single portfolio company, are reasonably limited and that all transactions are
on reasonable terms, with special attention paid to transactions that are not on
market terms. See SR Letter No. 00-9 (SPE), Attachment, at 13 (June 22, 2000).
Also, the Dodd-Frank Act amended Sections 23A and 23B of the FRA to include
additional limitations on transactions with advised or managed funds. See
5:1 et seq. for a detailed discussion of these restrictions.
250
873
procedures, and systems.251 These requirements do not apply if

the FHC does not control the fund.252 These requirements will
likely be updated after the Volcker Rule becomes eective, subject
to its transition provisions.
[vii] Federal Reserve Review of Risk Management
Policies
The Federal Reserve has announced that it generally will
conduct a review of the investment and risk management poli-
cies, procedures, and systems of an FHC that makes merchant
banking investments within a short period after the FHC com-
mences the activity. The review may be conducted o-site or on-
site, depending on the expected level and complexity of the FHC's
merchant banking investments and the FHC's previous experi-
ence in making equity investments under other legal
authorities.253
[j] Enhanced Capital Requirements
Although domestic FHCs are subject to the Federal Reserve's
enhanced capital requirements for merchant banking invest-
ments,254 these enhanced capital requirements do not apply to
foreign banks, which are subject to home-country capital
requirements. As a result, we will not discuss the Federal
Reserve's enhanced capital requirements for merchant banking
investments in this chapter.
[k] Cross-Marketing Restrictions
The BHC Act imposes cross-marketing restrictions on any U.S.
depository institution controlled by an FHC with respect to the
FHC's merchant banking activities.255 The main purpose of the
cross-marketing restrictions is to ensure an appropriate separa-
tion between banking and commerce.256 The Federal Reserve has
extended these restrictions to the U.S. branches and agencies of
251
12 C.F.R. 225.175(a)(1) applies to private equity funds controlled by an
FHC.
252
See 66 Fed. Reg. 8466, 8479 (Jan. 31, 2001).
253
See 66 Fed. Reg. 8466, 8479 (Jan. 31, 2001).
254
12 C.F.R. Pt. 225, App. A, II.B.5.
255
12 U.S.C.A. 1843(n)(5)(A).
256
See H.R. Rep. No. 106-74 pt. 1, at 122 to 123 (1999); 66 Fed. Reg. 8,466,
8,480 (Jan. 31, 2001).
874
foreign banks.257
As implemented by the Federal Reserve, these cross-marketing
restrictions prohibit any U.S. depository institution controlled by
an FHC, any of the depository institution's subsidiaries with
certain exceptions,258 and any U.S. branch or agency of a foreign
bank from:
E oering or marketing, directly or through any arrangement,
any product or service of any company if more than 5% of
the company's voting shares, assets, or other ownership
interests are owned or controlled by the FHC under Section
4(k)(4)(H) of the BHC Act; or
E allowing any product or service of the depository institution,
including any product or service of a subsidiary of the depos-
itory institution, to be oered or marketed, directly or
through any arrangement, by or through any company if
more than 5% of the company's voting shares, assets, or
other ownership interests are owned or controlled by the
FHC under Section 4(k)(4)(H) of the BHC Act.259
These cross-marketing restrictions apply to both a company
engaged in merchant banking activities and the portfolio
companies of such a company held under the merchant banking
power.260
The cross-marketing restrictions generally apply to a private
equity fund and its portfolio investments. However, they do not
apply to the portfolio companies of a private equity fund that is
not controlled by the FHC;261 nor do they apply to the sale, oer,
or marketing of any limited partnership or other interest in a
private equity fund whether or not it is controlled by the FHC.262
The cross-marketing restrictions do not apply to the marketing
of products and services by a U.S. depository institution, its sub-
sidiaries, or the U.S. branch or agency of a foreign banksuch as
deposits, loans, and advisory servicesto a merchant banking af-
liate or its portfolio companies so long as the merchant banking
257
12 C.F.R. 225.177(b) (denition of depository institution includes the
U.S. branches and agencies of a foreign bank for purposes of the merchant
banking power).
258
12 C.F.R. 225.176(a)(1), (2) (for example, nancial subsidiaries of
national banks are excluded from the covered subsidiaries).
259
12 C.F.R. 225.176(a)(1).
260
See 12 U.S.C.A. 1843(n)(5).
261
12 C.F.R. 225.176(a)(3)(i).
262
12 C.F.R. 225.176(a)(3)(ii).
875
aliate or its portfolio companies do not market those products

or services to their customers or others.263 Nor do the cross-
marketing restrictions apply to the purchasing of products or ser-
vicessuch as data processingby a U.S. depository institution,
its subsidiaries, or the U.S. branch or agency of a foreign bank
from a merchant banking aliate or its portfolio companies
provided that the institution does not, directly or indirectly or
through arrangements, market the merchant banking company
or portfolio company's products or services to the institution's
customers or others. Likewise, the cross-marketing restrictions
do not prohibit a U.S. depository institution, its subsidiary, or the
U.S. branch or agency of a foreign bank from engaging in cross-
marketing activities with a company that is a coinvestor with the
FHC in a merchant banking company or portfolio company so
long as those activities do not involve products or services of the
merchant banking company or portfolio company.264
[8] Insurance Company Portfolio Investments
Section 4(k)(4)(I) of the BHC Act permits an FHC to make con-
trolling and noncontrolling investments in the shares, assets, or
other ownership interests of a company or other entity that is
engaged in any activity that is not nancial in nature, incidental
to a nancial activity, complementary to a nancial activity, or
otherwise permitted by Section 4 of the BHC Act, subject to the
following conditions:
E the investment is not made or held by a U.S. depository
institution (including any FDIC-insured U.S. branch of a
foreign bank) or by a subsidiary of a U.S. depository institu-
tion;
E the shares, assets, or other ownership interests are acquired
and held by an insurance company aliate that is predomi-
nantly engaged in underwriting life, accident and health, or
property and casualty insurance (other than credit-related
insurance) or providing and issuing annuities;
E such shares, assets, or other ownership interests represent
an investment made in the ordinary course of business of
such insurance company in accordance with relevant state
law governing such investments; and
E the FHC does not routinely manage or operate the company
263
See 66 Fed. Reg. 8466, 8481 (Jan. 31, 2001).
264
See 66 Fed. Reg. 8466, 8481 and n.28.
876
in which the investment is made except as may be necessary

or required to obtain a reasonable return on investment.265
Insurance companies typically make these types of investments
to invest the funds received from policyholders. The investment
of funds, in particular funds received from policyholders and
funds generated by investments, is an essential and inherent
part of the insurance business. The Federal Reserve recognized
in the Citicorp/Travelers Order that, as an integral part of their
insurance business, insurance underwriting companies invest the
insurance premiums that they collect in a variety of
investments.266
The insurance company portfolio investment power is similar
to the merchant banking power in several respects described
more fully in Section 10:4[8][a] to [i]. Its chief dierences are that
there is no maximum holding period on portfolio investments
made pursuant to the insurance company portfolio investment
power, and it is not sucient for the FHC to have insurance
company and investment adviser aliates in order to rely on this
power. Instead, investments actually have to be made and held
by an insurance company aliate that is predominantly engaged
in certain insurance activities, and the investments must be made
in the ordinary course of its insurance business in accordance
with state or other applicable law.
Like the merchant banking power, the insurance company
portfolio investment power overlaps with several other sources of
authority for investments in nonnancial companies, including
the securities underwriting, dealing, and market making power
contained in Section 4(k)(4)(E) of the BHC Act; the merchant
banking power contained in Section 4(k)(4)(H); investments made
under Sections 4(c)(6) and (7); and investments made under Section
4(c)(13), the QFBO exemptions, and Regulation K. To the extent
that any of these provisions overlap, they are alternative sources
of authority for the same investments but with dierent condi-
tions and limitations. An FHC is free to choose whichever source
of authority gives it the most exibility with the least burden
under any particular circumstances.
Both the company portfolio investment power and these
alternative sources of authority will, however, become subject to
265
12 U.S.C.A. 1843(k)(4)(I).
266
Travelers Group Inc., Citicorp, 84 Fed. Res. Bull. 985, 988 n.18 (1998)
(As an integral part of their insurance business, the Travelers insurance
underwriting subsidiaries invest insurance premiums they collect in a variety of
investments.).
877
the Volcker Rule, including its restrictions on investments in or

through, and certain relationships with, hedge funds and private
equity funds when the Volcker Rule becomes eective, subject to
its transition provisions.267
Like the merchant banking authority, the insurance company
portfolio investment power permits an FHC to make investments
in any company or other entity that is engaged in any activity
that is not nancial in nature, incidental to a nancial activity,
complementary to a nancial activity, or otherwise permitted by
Section 4 of the BHC Act. This includes companies that are
engaged exclusively in nonnancial companies, as well as
companies that are engaged in mixed nancial and nonnancial
activities. The BHC Act does not impose any minimum percent-
age or other threshold on the amount of nonnancial activities in
which a portfolio company or other entity must engage in order
to be an eligible insurance company portfolio investment. Thus,
unless a company or other entity is engaged exclusively in activi-
ties that are nancial in nature, incidental to a nancial activity,
complementary to a nancial activity, or otherwise permitted by
Section 4 of the BHC Act, it is an eligible insurance company
portfolio investment, subject to the conditions and limitations of
such investments.
If a company or other entity is engaged exclusively in activities
that are permissible under Section 4 of the BHC Act, the invest-
ment is permissible under Section 4(k)(1) of the BHC Act, but it
is not an eligible insurance company portfolio investment. If a
company is engaged in a mixture of nancial and nonnancial
activities, but is substantially engaged in nancial activities
(meaning that its nancial activities, activities that are incidental
to a nancial activity, and activities permissible under Section
4(c) of the BHC Act account for at least 85% of the company's as-
sets and revenues), the FHC has a choice in making any invest-
ment in the company. The FHC is permitted to make the invest-
ment under the insurance company portfolio investment power,
subject to the conditions and limitations of that power; or it may
make the investment under Section 4(k)(1), subject to the require-
ment that it terminate any nonconforming activities; or obtain a
determination from the Federal Reserve that the nonconforming
activities are complementary to a nancial activity within two
267
See 10:8.
878
years of making the investment.268 An FHC might choose the

second authority if it wanted to be involved in the routine
management or operation of the company.
[b] Ordinary Course Under State Law
The BHC Act requires that any insurance company portfolio
investments be made in the ordinary course of business of the in-
surance company in accordance with state law governing such
investments.269 If the insurance company is organized under
foreign law or doing business under foreign law, this requirement
is presumably met if the portfolio investments are made in the
ordinary course of business of the insurance company in accor-
dance with applicable foreign law. Like the bona de investment
banking requirement under the merchant banking power, this
requirement was intended to distinguish between insurance
company portfolio investments made for investment purposes
and more strategic investments that are made for purposes of al-
lowing the FHC to engage in the nonnancial activities conducted
by the portfolio company.270 It preserves the nancial nature of
insurance company portfolio investment activities and helps fur-
ther the purpose of maintaining an appropriate separation be-
tween banking and commerce.271 Presumably, the Federal Reserve
will monitor compliance with this requirement through the
supervisory process to make sure that the insurance company
portfolio investment power is not used by an FHC to become
impermissibly involved in nonnancial activities as it does with
merchant banking investments.272 Although the ordinary-course-
under-state- (or other applicable) law requirement does not pro-
hibit an FHC from making investments in real estate investment
or management companies or from concentrating its investments
in any other particular sector, the Federal Reserve might scruti-
nize an FHC's compliance with the ordinary-course-under-state-
(or other applicable) law requirement if it makes insurance
company portfolio investments only in real estate investment or
development companies.273
268
See 12 C.F.R. 225.85(a)(3).
269
12 U.S.C.A. 1843(k)(4)(I)(iii).
270
See 66 Fed. Reg. 8466, 8469 (Jan. 31, 2001).
271
See 66 Fed. Reg. 8466, 8469 (Jan. 31, 2001).
272
See 66 Fed. Reg. 8466, 8469 (Jan. 31, 2001).
273
See 66 Fed. Reg. 8466, 8469 (Jan. 31, 2001). Real estate investment and
development are not nancial activities. See 66 Fed. Reg. 8466, 8469 (Jan. 31,
2001); 65 Fed. Reg. 16,460, 16,463 (Mar. 28, 2000) (interim rule).
879

Although the BHC Act does not make any distinction between
investments in the shares or assets of a company, and the Federal
Reserve has not promulgated any regulations for insurance
company portfolio investments similar to its merchant banking
regulations, the Federal Reserve would likely interpret Section
4(k)(4)(I) to prohibit an FHC from making investments in assets
unless the following conditions are satised as it does for
merchant banking investments:
company;
The statute provides that an FHC may not routinely manage
or operate any company acquired under the insurance company
portfolio investments authority power except as may be neces-
sary or required to obtain a reasonable return on investment.275
This restriction does not prevent an FHC from controlling up to
100% of the board of directors or similar governing body of a
portfolio company as long as the portfolio company employs of-
cers and employees responsible for routinely managing and
operating the company, and the board does not participate in
routine management or operation of the company.276
Although the Federal Reserve has not promulgated any rules
for insurance company portfolio investments similar to the rules
implementing the merchant banking power, the Federal Reserve
is likely to follow the same rules in determining whether an FHC
is deemed to be engaged in the routine management or operation
of a portfolio company held under the insurance company portfolio
investment power and when and to what extent it may be
temporarily involved in routinely managing or operating a
274
See 12 C.F.R. 225.170(e).
275
12 U.S.C.A. 1843(k)(4)(I)(iv).
276
See 12 C.F.R. 225.171(d)(1).
880
portfolio company.277
The restriction on routine management applies to both major-
ity and minority investments. Its chief impact on minority invest-
ments is to limit the negative covenants, or veto rights, that an
FHC may have over certain corporate actions. Such negative cov-
enants must be limited to matters that are not in the ordinary
course of businessthat is, matters that customarily require
board or shareholder action. The negative covenants may not
extend to matters that constitute routine management or
operations. The Federal Reserve has issued an interpretive letter
with a list of examples of matters over which negative covenants
are permissible, consistent with the restriction on routine
management and operations.278 Although this letter was issued in
the context of merchant banking investments, the Federal
Reserve is likely to apply the same guidelines to negative cove-
nants obtained in connection with minority investments made
pursuant to the insurance company portfolio investment power.
[f] After-the-Fact Notice Requirements
As with merchant banking investments, an FHC is required to
provide the Federal Reserve with notice within 30 days after
consummating any insurance company portfolio investment in
which the FHC directly or indirectly acquires more than 5% of
the shares, assets, or other ownership interests of a portfolio
company if the aggregate acquisition cost of such investment
exceeds the lesser of 5% of the FHC's Tier 1 capital and $200
million.279 It is also required to provide any notice that the Federal
Reserve otherwise deems to be necessary in the exercise of its
supervisory authority.280 Otherwise, an FHC is generally not
required to obtain prior approval for, or otherwise provide before-
or after-the-fact notice of, any insurance company portfolio invest-
ment except as described in Section 10:5[2]. If an after-the-fact
notice is required, the notice is provided on Federal Reserve Form
FR Y-10.
277
See 10:4[7][d].
278
12 C.F.R. 225.171(d)(2). See Letter from J. Virgil Mattingly, General
Counsel of the Federal Reserve, to Peter T. Grauer, Credit Suisse First Boston
(Dec. 21, 2001), which sets forth examples of negative covenants that an FHC
may enter into with a portfolio company without being deemed to be engaged in
the routine management or operation of the portfolio company.
279
12 C.F.R. 225.87(b)(4)(ii).
280
12 C.F.R. 225.87(b)(4)(iii).
881
[g] Risk Management, Record-Keeping, and

Reporting
As with FHCs that make merchant banking investments, an
FHC that makes insurance company portfolio investments must
establish and maintain policies, procedures, records, and systems
reasonably designed to conduct, monitor, and manage such
investments and the risks associated with such investments in a
safe and sound manner in accordance with the Supervisory Guid-
ance on Equity Investment and Merchant Banking Activities (the
Guidance Letter).281 The Guidance Letter describes in detail the
internal controls and risk management policies, procedures, and
systems that the Federal Reserve expects bank holding companies
engaged in equity investment activities to have and to maintain
in order to conduct such activities in a safe and sound manner.
The Guidance Letter notes that foreign banks should incorporate
the basic principles set forth in the Guidance Letter into their
U.S. operations with appropriate adaptation to reect the fact
that those operations are an integral part of a foreign bank, which
should be managing its risks on a consolidated basis and that the
bank is subject to overall supervision by its home-country
authorities.282
[h] Enhanced Capital Requirements
Although domestic FHCs are subject to the Federal Reserve's
enhanced capital requirements for insurance company portfolio
investments,283 these enhanced capital requirements do not apply
to FBOs, which are subject to home-country capital requirements.
As a result, we will not discuss the Federal Reserve's enhanced
capital requirements for insurance company portfolio investments
in this chapter.
[i] Cross-Marketing Restrictions
As with merchant banking investments, the BHC Act imposes
cross-marketing restrictions on any U.S. depository institution
controlled by an FHC with respect to the FHC's insurance
company portfolio investments. 284 The Federal Reserve has
extended these restrictions to the U.S. branches and agencies of
281
SR Letter No. 00-9 (SPE) (June 22, 2000).
282
SR Letter No. 00-9 (SPE), Attachment, at 3 (June 22, 2000). For a sum-
mary of the guidelines contained in the Guidance Letter, see 10:4[7][i].
283
12 C.F.R. Pt. 225, App. A, II.B.5.
284
12 U.S.C.A. 1843(n)(5)(A).
882
foreign banks.285
As implemented by the Federal Reserve, these cross-marketing
restrictions prohibit any U.S. depository institution controlled by
an FHC, any of the depository institution's subsidiaries with
certain exceptions,286 and any U.S. branch or agency of a foreign
bank from:
E oering or marketing, directly or through any arrangement,
any product or service of any company if more than 5% of
the company's voting shares, assets, or other ownership
interests are owned or controlled by the FHC under Section
4(k)(4)(I) of the BHC Act; or
E allowing any product or service of the depository institution,
including any product or service of a subsidiary of the depos-
itory institution, to be oered or marketed, directly or
through any arrangement, by or through any company if
more than 5% of the company's voting shares, assets, or
other ownership interests are owned or controlled by the
FHC under Section 4(k)(4)(I) of the BHC Act.287
These cross-marketing restrictions apply to both a company
engaged in insurance company portfolio investments and the
portfolio companies of such a company held under Section
4(h)(4)(I).288
The cross-marketing restrictions do not apply to any arrange-
ment with a company owned or controlled under insurance
company portfolio investment power for the marketing of
products or services through statement inserts or Internet Web
sites if the arrangement does not violate the anti-tying rule ap-
plicable to banking products and services,289 and the Federal
Reserve determines that the arrangement is in the public inter-
est, does not undermine the separation of banking and commerce,
and is consistent with the safety and soundness of depository
institutions.290
The cross-marketing restrictions do not apply to the marketing
285
12 C.F.R. 225.177(b) (denition of depository institution includes the
U.S. branches and agencies of a foreign bank for purposes of the merchant
banking power).
286
12 C.F.R. 225.176(a)(1), (2) (for example, nancial subsidiaries of
national banks are excluded from the covered subsidiaries).
287
12 C.F.R. 225.176(a)(1).
288
See 12 U.S.C.A. 1843(n)(5).
289
See 12 U.S.C.A. 1972.
290
12 U.S.C.A. 1843(n)(5)(B).
883
of products and services by a U.S. depository institution, its sub-

sidiaries, or the U.S. branch or agency of a foreign banksuch as
deposits, loans, and advisory servicesto an aliate or its
portfolio companies so long as the insurance company portfolio
investments aliate or its portfolio companies do not market
those products or services to their customers or others;291 nor do
the cross-marketing restrictions apply to the purchasing of
products or servicessuch as data processingby a U.S. deposi-
tory institution, its subsidiaries, or the U.S. branch or agency of
a foreign bank from an insurance company portfolio investments
aliate or its portfolio companies, provided that the institution
does not, directly or indirectly or through arrangements, market
the insurance company portfolio investments aliate's or
portfolio company's products or services to the institution's
customers or others. Likewise, the cross-marketing restrictions
do not prohibit a U.S. depository institution, its subsidiary, or the
U.S. branch or agency of a foreign bank from engaging in cross-
marketing activities with a company that is a co-investor with
the FHC in an insurance company portfolio investments aliate
or portfolio company so long as those activities do not involve
products or services of the insurance company portfolio invest-
ments aliate or portfolio company.292
[9] Commodities
[a] Generally
The BHC Act generally treats the trading in commodity deriva-
tives contracts as a nancial activity. It therefore grants FHCs
authority to trade in a broad range of forward contracts, options,
futures, options on futures, swaps, and similar contracts, whether
exchange-traded or over-the-counter, based on any rate, price,
nancial asset, nonnancial asset, or group of assets, subject to
certain conditions.293 Similarly, the Oce of the Comptroller of
the Currency (the OCC) generally treats commodity derivatives
trading as a permissible banking activity for national banks.294
This means that FBOs have considerable scope to engage in such
commodity derivatives trading as a permissible banking activity
through their U.S. branches or agencies (or the U.S. branches or
agencies of their subsidiary foreign banks) or as a nancial activ-
291
See 66 Fed. Reg. 8466, 8481 (Dec. 31, 2001).
292
See 66 Fed. Reg. 8466, 8481 and n.28.
293
12 C.F.R. 225.28(b)(8)(ii).
294
OCC Interpretive Letter No. 1040 (Sept. 15, 2005); OCC Interpretive
Letter No. 1025 (Apr. 6, 2005); OCC Interpretive Letter No. 962 (Apr. 21, 2003).
884
ity through their non-U.S. oces or nonbank aliates,295 subject

to the swaps pushout provision of the Dodd-Frank Act when that
provision becomes eective.296
Although trading in commodity derivative contracts is a
permissible nancial activity for FHCs, trading in the underlying
physical commodities or engaging in certain other commodity-
related activities is not considered to be nancial in nature or
incidental to a nancial activity. The Federal Reserve has
determined in a series of orders, however, that certain commod-
ity trading activities, energy management services, and energy
tolling arrangements are complementary to the nancial activity
of trading in commodity derivatives.
In an order issued to Citigroup in 2003, the Federal Reserve
determined that taking and making physical delivery of, or stor-
ing, oil, natural gas, agricultural products, and other nonnancial
commodities were complementary to the nancial activity of trad-
ing in commodity derivatives.297 The Federal Reserve gave sev-
eral reasons why such commodity trading activities were
complementary to commodity derivatives trading. First, they
owed from permissible existing nancial activities, allowing
FHCs to take an otherwise permissible commodity derivatives
contract to physical settlement rather than terminating, assign-
ing, osetting, or otherwise cash-settling the contract. Second,
they would make FHCs more competitive with non-FHCs, which
are not subject to any limitations on taking or making physical
delivery of commodity contracts. Third, they would allow FHCs
to provide a full range of commodity-related services to their
customers more eciently. Fourth, by enabling FHCs to gain ex-
perience in the markets for physical commodities, they would
improve the FHCs' understanding of the commodity derivatives
market.298
In order to limit the potential safety and soundness risks of
Citigroup's commodity-trading activities, and to ensure that the
proposed activities would produce public benets that outweighed
any potential adverse eects, the Federal Reserve imposed a
number of conditions on Citigroup's exercise of commodity trad-
295
See 12 C.F.R. 225.28(b)(8)(ii).
296
See 10:9.
297
Citigroup, Order Approving Notice to Engage in Activities Complementary
to a Financial Activity, 89 Fed. Res. Bull. 508 (2003).
298
See Citigroup, Order Approving Notice to Engage in Activities Comple-
mentary to a Financial Activity, 89 Fed. Res. Bull. 508 (2003).
885
ing activities, including the following:299

E Market Value Limit. The market value of any commodities
acquired and held by Citigroup must not exceed 5% of its
consolidated Tier 1 capital;
E Reporting Requirement. Citigroup must notify the Federal
Reserve Bank of New York if the market value of commodi-
ties held by it as a result of the commodity trading activities
were to exceed 4% of its Tier 1 capital;
E Related Contract Approval Requirement. Citigroup may take
and make physical delivery only of physical commodities for
which derivative contracts have been approved for trading
on a U.S. futures exchange by the Commodity Futures Trad-
ing Commission (the CFTC) unless specically excluded or
approved by the Federal Reserve;
E Limits to Control Nonnancial Risks. To minimize nonnan-
cial risks, such as storage risk, transportation risk, and legal
and environmental risk, Citigroup would not be authorized
to: (i) own, operate, or invest in facilities for the extraction,
transportation, storage, or distribution of commodities; or
(ii) process, rene, or otherwise alter commodities; instead,
Citigroup would be expected to use storage and transporta-
tion facilities owned and operated by third parties; and
E Compliance with Laws. Citigroup would be expected to
conduct its commodity trading activities in compliance with
the general securities, commodities, and energy laws.
The Federal Reserve has subsequently granted permission to
engage in commodity trading activities to other FHCs, including
foreign banks, subject to essentially the same conditions set forth
above.300 In the case of a foreign bank, the Federal Reserve has
made it clear that Tier 1 capital means the Tier 1 capital of the
entire foreign bank as calculated under home-country capital
standards.301
The Federal Reserve has subsequently expanded the range of
commodities activities that are considered complementary to
commodity derivatives transactions to include (i) energy manage-
299
See Citigroup, Order Approving Notice to Engage in Activities Comple-
mentary to a Financial Activity, 89 Fed. Res. Bull. 508 (2003).
300
See, e.g., UBS AG, 90 Fed. Res. Bull. 215 (2004); Barclays Bank PLC, 90
Fed. Res. Bull. 511 (2004); Deutsche Bank AG, 92 Fed. Res. Bull. C54 (2006);
JPMorgan Chase & Co., 92 Fed. Res. Bull. C57 (2006); Socit Gnrale, 92
Fed. Res. Bull. C113 (2006).
301
See, e.g., UBS AG, 90 Fed. Res. Bull. 215, 216 (2004).
886
ment services for owners of power generation facilities302 and (ii)

physically settled energy tolling arrangements.303 It has also
determined that commodity trading activities include entering
into long-term electricity supply contracts with large industrial
and commercial customers.304
The Federal Reserve has also relaxed certain of the conditions
imposed on commodity trading activities. In particular, it has
relaxed the requirement that trading in commodities be limited
to commodities for which derivative contracts have been approved
for trading on a U.S. futures exchange by the CFTC. Instead, it
has permitted trading in nickel because although contracts for
nickel have not been approved for trading on a U.S. futures
exchange by the CFTC, contracts for nickel are widely and
actively traded on the London Metal Exchange, a major non-U.S.
exchange that the CFTC has determined to be subject to a regula-
tory structure comparable to that administered by the CFTC.
The Federal Reserve has also permitted trading in certain natu-
ral gas liquids, oil products, and petrochemicals even though
contracts for those commodities have not been approved for trad-
ing on a U.S. futures exchange or on a major non-U.S. exchange
because such commodities are (i) fungible and (ii) traded in a suf-
ciently liquid market through brokers on alternative trading
platforms.305
The Federal Reserve has also relaxed the condition that com-
modities being traded not be physically altered. The Federal
Reserve has permitted an FHC to engage third parties to rene,
blend, or otherwise alter commodities for which it is permitted to
take and make physical delivery provided that both the commod-
ity input and the resulting altered commodity are permissible
commodities under the Federal Reserve's decisions, and the FHC
302
See, e.g., Fortis S.A./N.V., 94 Fed. Res. Bull. C20 (2008).
303
The Royal Bank of Scotland Group plc, Order Approving Notice to Engage
in Activities Complementary to a Financial Activity, 94 Fed. Res. Bull. C60,
C66 (2008). An energy tolling agreement is an agreement to pay the owner of a
power plant a xed periodic payment that compensates the owner for its xed
and fuel costs in exchange for the right to all or part of the plant's power output.
The plant owner retains control over the day-to-day operations of the plant and
physical plant assets.
304
The Royal Bank of Scotland Group plc, 94 Fed. Res. Bull. C60, C6162
(2008).
305
The Royal Bank of Scotland Group plc, 94 Fed. Res. Bull. C60, C6263
(2008).
887
will not have exclusive rights to use the alteration facility.306

[b] Grandfathered Commodities Activities
The BHC Act also includes a grandfathering provision that
authorizes any company, including an FBO, that becomes an
FHC after November 12, 1999, to continue to engage in activities
related to the trading, sale, or investment in commodities and
commodities-related facilities if the following conditions are
satised:
E The company was not a BHC or foreign bank as of November
12, 1999;
E The company lawfully was engaged, directly or indirectly,
in any of such activities as of September 30, 1997, in the
United States;
E The aggregate consolidated assets of the company attribut-
able to commodities or commodities-related activities that
are not otherwise permitted to be held by an FHC must not
at any time exceed 5% of the company's total consolidated
assets or such higher percentage that the Federal Reserve
may permit; and
E The company does not permit:
E any company, the shares of which it owns or controls
pursuant to the commodities grandfathering provision
of the BHC Act, to oer or market any product or ser-
vice of an aliated U.S. depository institution; or
E any aliated U.S. depository institution to oer or mar-
ket any product or service of any company, the shares of
which area owned or controlled by it pursuant to the
commodities grandfathering provision of the BHC Act.
[10] Hedge Funds
An FHC is permitted to make controlling and noncontrolling
investments in any hedge fund provided that the hedge fund is
exclusively engaged in activities that are nancial in nature,
activity, or otherwise permitted by Section 4 of the BHC Act.
Investments in and certain relationships with hedge funds will,
however, become subject to the restrictions in the Volcker Rule
when that provision becomes eective, subject to its transition
provisions.307
If an investment in a hedge fund is a controlling investment,
306
The Royal Bank of Scotland Group plc, 94 Fed. Res. Bull. C60, C64 (2008).
307
See 10:8.
888
the FHC will be deemed to control the portfolio investments of

the hedge fund, and the FHC will need a separate source of
authority to control such portfolio investments. If the hedge fund's
portfolio investments are limited to noncontrolling investments
in less than 5% of any class of voting securities of its portfolio
companies, which can be the case with certain traditional hedge
funds that limit their investments to long and short positions in
small percentages of large publicly traded companies, the FHC
may be able to rely on Section 4(c)(6) of the BHC Act as the
authority for holding the hedge fund's portfolio investments. In
computing its compliance with the 5% limit of Section 4(c)(6), the
FHC will need to aggregate all of its direct and indirect invest-
ments in the voting securities of each portfolio company, includ-
ing investments held through the controlled hedge fund.
An FHC may also rely on the merchant banking power as a
source of authority for holding any portfolio companies of a con-
trolled hedge fund, but if it does so, it must assure itself by
contractual arrangement or otherwise that the hedge fund will
comply with the conditions of the merchant banking power,
including the restrictions on routine management or operation of
the portfolio companies and the maximum holding period.308 This
may be a serious issue if the FHC is deemed to control the hedge
fund under the Federal Reserve's control rules but does not have
actual control over the management or policies of the hedge
fund.309 If the hedge fund is organized as a corporation with
unlimited life, instead of as a partnership or other entity with a
maximum life of 15 years, it will not be able to satisfy the condi-
tions for being a qualied private equity fund, so the maximum
holding period for its portfolio investments will be 10 years rather
than 15 years.
If an FHC is unable to assure itself that a hedge fund will
comply with the conditions of the merchant banking power, it
may still invest in the hedge fund under Section 4(k)(1) if the
hedge fund is engaged exclusively in activities permitted by Section
4 of the BHC Act, but it will need to structure the investment as
a noncontrolling investment in order to avoid having the hedge
fund's portfolio investments attributed to it.
If a hedge fund is not exclusively engaged in activities that are
permissible under Section 4 of the BHC Act, an FHC may never-
theless invest in it under, but subject to the conditions of, the
308
Any such investment must also be made in compliance with the Volcker
Rule.
309
For a discussion of the Federal Reserve's control rules, see 6:1 et seq.
889
merchant banking power or the insurance company portfolio

investment power.310 These conditions include the maximum hold-
ing period and the restrictions on routinely managing or operat-
ing the hedge fund.
[11] Real Estate
As noted in Section 10:4[2], in 2001, the Federal Reserve and
the Secretary of the Treasury jointly proposed that real estate
brokerage and real estate management be treated as incidental
to a nancial activity.311 Although the agencies have not formally
withdrawn their joint proposal, they have eectively abandoned
it in the face of substantial public opposition to the proposal
mainly from a host of independent real estate brokers.
Although real estate investment, development, brokerage, and
management have not been determined to be nancial in nature,
activity, or otherwise permitted by Section 4 of the BHC Act, a
QFBO that is an FHC may (i) underwrite, deal, and make
markets in securities of companies engaged in such activities, (ii)
make controlling and noncontrolling investments in them pursu-
ant to, and subject to the conditions and limitations of, the
merchant banking and insurance company portfolio investment
powers or the QFBO exemptions, or (iii) make noncontrolling
investments in them pursuant to Section 4(c)(6) or (7) of the BHC
Act.
The most important restriction on using the merchant banking
or insurance company portfolio investment powers to make such
investments is the restriction on using these powers to make
investments in real estate assets as opposed to companies hold-
ing such assets. Under the merchant banking regulations, which
apply directly to investments made under the merchant banking
power and by analogy to investments made under the insurance
company portfolio investment power, an FHC may not make
investments in real estate assets unless the following conditions
are satised:
company;
310
Any such investment must also be made in compliance with the Volcker
Rule.
311
See 66 Fed. Reg. 307 (Jan. 3, 2001).
890
To the extent that real estate investments are made through a
private equity fund or hedge fund as dened by the Volcker Rule,
an FHC's power to invest will become subject to the Volcker Rule
when that provision becomes eective, subject to its transition
provisions.313
10:5 Streamlined notice and approval procedures

If an FBO becomes an FHC, not only does it become eligible to
exercise an expanded range of nonbanking powers, but it also
enjoys streamlined procedures for commencing nonbanking activi-
ties and making nonbanking investments except for certain large
transactions.
[1] General Rule: No Prior Application or Notice
Except as described in Section 10:5[2], FHCs generally are not
subject to the prior approval requirements in Section 4 of the
BHC Act that otherwise apply to the direct or indirect nonbank-
ing activities of FBOs that control a U.S. bank or otherwise have
a U.S. commercial banking presence so long as the nonbanking
activities are nancial in nature or incidental to a nancial
activity.314 Thus, an FHC generally is not required to le an ap-
plication for prior approval by the Federal Reserve or give prior
notice to the Federal Reserve to (i) engage in, or make a control-
ling or noncontrolling investment in a company that is exclusively
or substantially engaged in, nancial activities or activities that
are incidental to nancial activities; or (ii) acquire a controlling
or noncontrolling interest in a company pursuant to the FHC's
312
See 12 C.F.R. 225.170(e).
313
See 10:8.
[Section 10:5]
314
Compare 12 C.F.R. 225.24(a) (prior notice and approval requirements
generally applicable to nonbanking activities and investments by FBOs that
control a U.S. bank or otherwise have a U.S. commercial banking presence,
including activities determined to be closely related to banking under Section
4(c)(8) of the BHC Act) with 12 C.F.R. 225.85(a)(2) and (3) (no prior notice or
approvals required for an FHC to engage in, or acquire control of any company
exclusively or, subject to certain conditions, substantially engaged in, any activ-
ity that is nancial in nature or incidental to a nancial activity, including any
activities determined to be closely related to banking under Section 4(c)(8) of
the BHC Act).
891
securities underwriting, dealing, and market making; merchant

banking; or insurance company portfolio investment powers.315
[2] Exceptions to the No Prior Application or Notice
Requirement
There are seven exceptions to the general rule, described in
Section 10:5[1], that no prior approval or notice is required for an
FHC to commence nonbanking activities or make nonbanking
investments under Section 4 of the BHC Act:
E Complementary Activities. An FHC must obtain prior ap-
proval from the Federal Reserve before commencing, or
acquiring 5% or more of any class of voting securities of any
company engaged in, any activities that are complementary
to a nancial activity316 except for any company substantially
engaged in nancial activities or activities incidental to a
nancial activity; or pursuant to the FHC's power to engage
in securities underwriting, dealing, or market making; or to
make merchant banking or insurance company portfolio
investments.317
E Savings Association or Savings and Loan Holding
Companies. An FHC must obtain Federal Reserve approval
prior to acquiring control of more than 5% of the shares of
any class of voting securities of a savings association or a
savings and loan holding company.318
E Supervisory Discretion. The Federal Reserve, in the
exercise of its supervisory authority, may require an FHC to
provide notice to or obtain approval from the Federal
Reserve prior to engaging in any activity or acquiring shares
or control of any company engaged in a nancial or nonnan-
cial activity.319
E New Closely Related to Banking Activities. An FHC
must give prior notice before engaging in activities on the
basis of Section 4(c) of the BHC Act that have not been
315
12 U.S.C.A. 1843(k)(6)(B); 12 C.F.R. 225.85(a)(1).
316
See 12 C.F.R. 225.89(a).
317
12 U.S.C.A. 1843(k)(4)(B), (E), (H), (I); 12 C.F.R. 225.85(a)(1), (3),
225.86(c).
318
12 U.S.C.A. 1843(k)(6); 12 C.F.R. 225.85(c)(1). Federal Reserve ap-
proval must be obtained in accordance with Section 4(j) of the BHC Act, 12
U.S.C.A. 1843(j).
319
12 C.F.R. 225.85(c)(2). The Federal Reserve may impose such a require-
ment in accordance with its authority pursuant to 12 C.F.R. 225.82(g) (residual
supervisory authority over FHCs) or 12 C.F.R. 225.83(d) (limitations during
period of noncompliance with FHC conditions).
892
determined to be nancial in nature or incidental to a

nancial activity if Section 4(c) of the BHC Act or Regula-
tion Y requires such prior notice.320
E Acquisitions of Voting Shares in Certain Large Non-
banking Companies by Systemically Important FHCs.
Section 163 of the Dodd-Frank Act requires systemically
important FHCs ($50 billion or more in total consolidated
assets) to provide prior notice to the Federal Reserve before
acquiring control of any voting shares of any nonbanking
company that is engaged in activities that are nancial in
nature, incidental to a nancial activity, or complementary
to a nancial activity and that has $10 billion or more of
consolidated assets. In approving such an activity, the
Federal Reserve must consider whether the acquisition
would result in greater or more concentrated risks to global
or U.S. nancial stability or the U.S. economy.321
E There is an exception from this prior notice requirement
for acquisitions of shares under Section 4(c) including
investments in less than 5% of the voting shares of a
company or pursuant to the FHC's underwriting, deal-
ing, and market-making powers under Section 4(k)(4)
(E) of the BHC Act.
E Acquisitions of Large Nonbanking Companies. Section
604 of the Dodd-Frank Act amended the BHC Act, eective
July 21, 2011, to require all FHCs to provide prior notice to
the Federal Reserve before acquiring any nonbanking
company engaged in activities pursuant to Section 4(k)(4) of
the BHC Act or any implementing regulations in a transac-
tion in which the total consolidated assets to be acquired by
the FHC exceed $10 billion.322
E There is no express exception from this prior notice
requirement. However, it appears to be limited to
acquisitions of control of a covered company. If so, then
investments in less than 5% of the voting shares of any
320
See, e.g., 12 U.S.C.A. 1843(c)(13), (14); 87 Fed. Res. Bull. 683 (2001). In
addition, an FBO that controls a U.S. bank or otherwise has a U.S. commercial
banking presence, whether or not it is an FHC, must receive prior approval
from the Federal Reserve under Section 3 of the BHC Act before acquiring 5%
or more of the shares of any class of voting securities of a BHC (including an
FBO that controls a U.S. bank) or a U.S. bank. 12 U.S.C.A. 1842(a)(3); 12
C.F.R. 225.11(c)(1), (f).
321
Dodd-Frank Act, Pub. L. No. 111-203, 163(b)(1) to (2) (2010) (to be codi-
ed at 12 U.S.C.A. 5363(b)(1) to (2)).
322
12 U.S.C.A. 1843(k)(6)(B), amended by Dodd-Frank Act, Pub. L. No.
111-203, 604(e), 124 Stat. 1376, 1601 to 1602 (2010).
893
company and any other noncontrolling investment in

the company would be exempt from this prior notice
requirement.
In addition, Section 622 of the Dodd-Frank Act imposes a at
prohibition on any FHC merging with or acquiring another
company if the transaction would result in the FHC controlling
more than 10% of all consolidated nancial liabilities in the
United States. There is an exception from this prohibition for the
acquisition of any bank in default or in danger of default in and
FDIC-assisted transaction if the acquisition would result only in
a de minimis increase in the FHC's liabilities, and the FHC
received prior, written consent from the Federal Reserve.323
[3] Post-transaction Notices
An FHC is generally required to notify the appropriate Federal
Reserve Bank in writing within 30 calendar days after (i) com-
mencing any nancial activity or an activity that is incidental to
a nancial activity or (ii) consummating the acquisition of a con-
trolling interest in a company that is engaged in any nancial
activities or any activities incidental to nancial activities.324
Once an FHC has given notice that it is engaged in a particular
activity, it is not required to give any further notice if it com-
mences the same activity de novo in any subsidiary.325
Similarly, once an FHC has given notice that it has commenced
exercising securities underwriting, dealing, or market making;
merchant banking; or insurance company portfolio investment
powers, it is not required to give any further notice when it
acquires an interest in a company pursuant to the exercise of
those powers, with one exception.326 An FHC is required to give
after-the-fact notice within 30 days after consummating any
merchant banking or insurance company portfolio investment in
which the FHC directly or indirectly acquires more than 5% of
the shares, assets, or other ownership interests of a portfolio
company if the aggregate acquisition cost of such investment
exceeds the lesser of 5% of the FHC's Tier 1 capital and $200
323
Dodd-Frank Act, Pub. L. No. 111-203, 622(b) to (c) (2010) (to be codied
at 12 U.S.C.A. 1852(b) to (c)). The precise calculation of liabilities, for the
purpose of the 10% restriction, is expected to be implemented by the FSOC by
October 2011. 76 Fed. Reg. 6756, 6756 to 6757 (Feb. 8, 2011).
324
12 C.F.R. 225.87(a), (b)(1).
325
12 C.F.R. 225.87(b)(2).
326
12 C.F.R. 225.87(b)(3).
894
million.327 It is also required to provide notice for any merchant

banking or insurance company portfolio investment if the Federal
Reserve otherwise deems it to be necessary in the exercise of its
supervisory authority.328
If an FHC acquires a controlling interest in, for instance, a
broker-dealer, a company engaged in making merchant banking
investments, or an insurance company, a post-transaction notice
is necessary. Even if the FHC has previously notied the Federal
Reserve that it has commenced securities underwriting, dealing,
and market making activities; merchant banking activities; or in-
surance activities, the FHC is still required to give a posttransac-
tion notice in connection with a new acquisition (as opposed to de
novo commencement) of a broker-dealer, a company engaged in
merchant banking activities, or an insurance company.
[4] Hart-Scott-Rodino Act
If an FHC makes an acquisition of a company engaged in
nancial activities or makes an acquisition in exercise of its
nancial activities investment authority (i.e., the merchant bank-
ing investment authority or the insurance company portfolio
investment authority) of a company engaged in nonnancial
activities, it may be necessary to le a premerger notication
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(HSR Act).329
The HSR Act is a procedural statute intended to give the U.S.
antitrust enforcement authorities advance notice of certain merg-
ers and acquisitions so that the enforcement authorities may
detect and prevent transactions that may violate the U.S.
antitrust laws before they are consummated. The HSR Act
prohibits acquisitions of substantial amounts of voting securities
and assets unless (1) a premerger notication is led with both
the Federal Trade Commission (FTC) and the Assistant Attorney
General in charge of the Antitrust Division of the Department of
Justice (DOJ) and (2) a waiting period subsequent to those lings
has expired.
The HSR Act provides that no premerger notication is neces-
sary for any transactions that require approval of the Federal
327
12 C.F.R. 225.87(b)(4)(i), (ii).
328
12 C.F.R. 225.87(b)(4)(iii).
329
15 U.S.C.A. 18a.
895
Reserve under Section 3 or Section 4 of the BHC Act.330 However,

a premerger notication under the HSR Act would be required in
connection with most acquisitions under Section 4(k) of the BHC
Act, including any portion of a transaction that is governed by
Section 4(k), since those acquisitions (or portions of transactions)
would not require prior Federal Reserve approval but only post-
transaction notice.331 In addition, Sections 163 and 604(e) of the
Dodd-Frank Act expressly require premerger notications under
the HSR Act for transactions that require prior notice pursuant
to those provisions.332
For instance, if the acquired company is a U.S. bank or BHC
engaged, directly or indirectly, in (i) banking, (ii) nancial activi-
ties under Section 4(k) of the BHC Act, and (iii) complementary
activities, the acquiror would be required to le both a notice
with the Federal Reserve (for the portion of the transaction relat-
ing to the complementary activities and the acquisition of the
bank) and an HSR Act premerger notication with the FTC and
the DOJ (for the portion of the transaction that involves nancial
activities subject to Section 4(k) of the BHC Act.)333 As stated in
Section 10:5[1], and subject to the exemption stated in Section
10:5[2], nancial activities subject to Section 4(k) of the BHC Act
do not require prior notice to or approval by the Federal Reserve,
and hence, the acquisition of a company engaged in nancial
activities requires notication under the HSR Act. By contrast,
330
15 U.S.C.A. 18a(c)(7), (8). For example, the acquisition of 5% or more of
any U.S. bank or thrift, or any bank or thrift-holding company, by an FBO that
controls a U.S. bank or otherwise has a U.S. commercial banking presence,
regardless of whether it is an FHC, would require prior Federal Reserve ap-
proval and therefore be exempt from the premerger notication requirement of
the HSR Act.
331
15 U.S.C.A. 18a(c)(7), (8).
332
12 U.S.C.A. 1843(k)(6)(B), amended by Dodd-Frank Act, Pub. L. No.
111-203, 604(e) (2010); Dodd-Frank Act, Pub. L. No. 111-203, 163(b)(5)
(2010) (to be codied at 12 U.S.C.A. 1563(b)(5)).
333
See 15 U.S.C.A. 18a(c)(7), (8). In order to avoid an HSR Act premerger
notication in connection with the acquisition of a BHC that has subsidiaries
engaged in nancial activities, some practitioners le a prior notice under
Section 4(j) of the BHC Act, 12 U.S.C.A. 1843(j), for such nancial activities
that fall within the limitations of 4(c)(8) of the BHC Act, 12 U.S.C.A. 1843
(c)(8), 12 C.F.R. 225.28. The Federal Reserve accepts this approach. See Royal
Bank of Canada, Rocky Merger Subsidiary, Inc. (Centura Banks, Inc.), 87 Fed.
Res. Bull. 467 (2001) (Royal Bank, an FHC, led an application under Section 3
of the BHC Act, 12 U.S.C.A. 1842, to acquire Centura Bank, Inc. and under
Sections 4(c)(8) and (j) of the BHC Act, 12 U.S.C.A. 1843(c)(8) and (j), to
acquire the nonbanking subsidiaries of Centura and thereby engage in extend-
ing credit and servicing loans. The Federal Reserve considered the competitive
eect of the proposed acquisition of the nonbanking subsidiaries of Centura.).
896
complementary activities are subject to Section 4(k) of the BHC

Act but require prior Federal Reserve approval under Section 4(j)
of the BHC Act; therefore, a notication under the HSR Act is
not required.
10:6 Potential adverse consequences

The main consequences of becoming an FHC are the advan-
tages of expanded nonbanking powers and streamlined proce-
dures for exercising nonbanking powers. There are no apparent
adverse regulatory consequences associated with becoming an
FHC (i.e., no change in applicable supervisors, no perceptible
change in the level of supervision for any member of the FBO's
group, no decrease in powers, no increased procedural burden for
banking or nonbanking acquisitions or activities, no increased
reporting requirements) except for the following:
[1] Additional Costs
One potential adverse consequence of becoming an FHC is the
additional cost of making an FHC election and ensuring that the
FBO continues to satisfy the well-capitalized and well-managed
conditions of maintaining FHC status.
[2] New Quarterly Reports
Another potential adverse consequence is that foreign banks
that are FBOs or controlled by FBOs are required to provide
consolidated regulatory capital information to the Federal
Reserve on a quarterly basis, instead of only annually, in order to
show their continued compliance with the well-capitalized
condition. Such information is provided on Form FR Y-7Q.
[3] New Self-Reporting Obligations
An FBO that becomes an FHC is required to notify the Federal
Reserve promptly if it (in the case of an FBO that is a foreign
bank with a U.S. commercial banking presence) or any foreign
bank with a U.S. commercial banking presence or any U.S. de-
pository institution controlled by it fails to satisfy the well-
capitalized or well-managed conditions. Failure to comply with
this new self-reporting obligation can result in an enforcement
action or civil or criminal penalties.
[4] Potential Loss of FHC Powers
An FBO that becomes an FHC will be exposed to the adverse
impact of losing its FHC status, and its ability to exercise the re-
lated expanded powers in the United States, if it ever fails to
satisfy the well-capitalized or well-managed conditions and is un-
able to cure those deciencies during a specied cure period. As
897
discussed more fully in Section 10:7[1], an FHC generally has

180 days to cure any deciencies (subject to extensions for good
cause) before its FHC status may be revoked. The cost and
reputational harm to the FBO of having to contract its U.S. opera-
tions so that they are permissible for a non-FHC after it has
invested time and money in exercising any of the expanded pow-
ers could be signicant.
[5] Limit Certain Options
In addition, the potential loss of the FBO's FHC status may de-
ter it from making certain otherwise attractive investments. For
example, suppose an FBO was interested in making a strategic
minority investment in a foreign bank with a U.S. commercial
banking presence or with a plan to establish a U.S. commercial
banking presence. Under such circumstances, the FBO would
risk losing its FHC status if the foreign bank were not well
capitalized or well managed unless the FBO could structure the
investment as a noncontrolling one for BHC Act purposes or cause
the target bank to become well capitalized and well managed.
However, because of the Federal Reserve's very low standard for
what constitutes control,334 the FBO might be deemed to control
the foreign bank for purposes of the BHC Act without having the
actual control to cause the target bank to become well capitalized
or well managed. Thus, the FBO might be forced to choose be-
tween the otherwise attractive investment and preserving its
FHC status.
[6] Sections 23A and 23B of the Federal Reserve Act
Sections 23A and 23B of the FRA insulate U.S. insured deposi-
tory institutions from the risks of their nonbanking aliates by
imposing certain limits on transactions between the insured de-
pository institutions and their nonbanking aliates.335 In gen-
eral, Sections 23A and 23B do not apply to the U.S. branches or
agencies of foreign banks.
If a foreign bank or any company controlling a foreign bank
elects to become an FHC, however, Sections 23A and 23B will ap-
ply as a matter of competitive equality to any covered transac-
tion between the U.S. branches, agencies, and commercial lend-
ing company subsidiaries of the foreign bank, as if they were
respectively members of the Federal Reserve System (member
banks), and any of its aliates that is also:
[Section 10:6]
334
See 6:1 et seq.
335
12 U.S.C.A. 371c, 371c-1; 12 C.F.R. Pt. 223.
898
E engaged in insurance underwriting pursuant to Section

4(k)(4)(B) of the BHC Act;
E engaged in securities underwriting, dealing, or market mak-
ing pursuant to Section 4(k)(4)(E) of the BHC Act;
E engaged in merchant banking activities pursuant to Section
4(k)(4)(H) of the BHC Act (but only to the extent that the
proceeds of the transaction are used for the purpose of fund-
ing the aliate's merchant banking activities);
E engaged in insurance company portfolio investments pursu-
ant to Section 4(k)(4)(I) of the BHC Act;
E engaged in any other activity designated by the Federal
Reserve;
E a portfolio company controlled by the foreign bank or an af-
liate of the foreign bank or a company that would be an af-
liate of the U.S. branch, agency, or commercial lending
company subsidiary of the foreign bank if such branch,
agency, or commercial lending company subsidiary were a
member bank; or
E any subsidiary of any of the foregoing.336
Sections 23A and 23B of the FRA impose specic quantitative,
qualitative, collateral, and arm's-length terms requirements on
loans, other extensions of credit, and other covered transactions
that expose a member bank to the credit risks of its aliates. In
general, the term aliate is dened as any company that
controls, is controlled by, or is under common control with the
member bank (or foreign bank, where applicable).337 A company
is deemed to have control over another company if the company
(i) owns, controls, or has the power to vote 25% or more of any
class of voting securities of the other company; (ii) controls in any
manner the election of a majority of the directors, trustees, or
general partners (or individuals exercising similar functions) of
the other company; or (iii) exercises a controlling inuence over
the management or policies of the other company.338
Covered transactions currently include: (1) any loan or exten-
sion of credit to an aliate; (2) any purchase of, or investment in,
securities issued by an aliate; (3) any purchases of assets,
including assets subject to an agreement to repurchase from an
aliate, unless specically exempted by the Federal Reserve; (4)
any transaction in which the covered BHC accepts securities is-
336
12 C.F.R. 223.61, 225.176(b)(6).
337
See 12 C.F.R. 223.2.
338
See 6:1 et seq.
899
sued by an aliate as collateral for a loan or extension of credit

to any entity; and (5) the issuance of a guarantee, acceptance, or
letter of credit, including an endorsement or standby letter of
credit, on behalf of an aliate.339
The Dodd-Frank Act amends Section 23A of the FRA, eective
July 21, 2012, in a number of ways:
E The term covered transactions will be expanded to include
credit exposure on derivatives transactions, credit exposure
resulting from securities borrowing and lending transac-
tions, and credit exposure arising from the acceptance of
aliate-issued debt obligations (other than securities) as
collateral for a loan or extension of credit.
E The collateral requirements will need to be satised on a
continuous basis rather than only at the time that the trans-
action is entered into and in instances that collateral is
retired or amortized as currently permitted.
E The range of covered transactions subject to the collateral
requirement will be expanded to include the new covered
transactions described above, as well as credit exposure on
repurchase agreements.
E Debt obligations issued by an aliate will no longer be
eligible to satisfy the Section 23A collateral requirements.340
There is also a rebuttable presumption that an FHC controls a
portfolio company held under the merchant banking or insurance
company portfolio investment powers for purposes of Sections
23A and 23B of the FRA if the FHC owns or controls, directly or
indirectly, 15% or more of the equity capital of the portfolio
company.341 Thus, unless the presumption is rebutted, any such
portfolio company will be treated as an aliate of the FHC, and
any U.S. insured depository institution or U.S. branch, agency, or
commercial lending company subsidiary of any foreign bank that
is, or is controlled by, the FHC for purposes of Sections 23A and
23B of the FRA.
This presumption of control will be deemed rebutted if any of
the following is true:
E No director, ocer, or employee of the FHC serves as a direc-
tor, trustee, or general partner (or individual exercising sim-
ilar functions) of the portfolio company;
339
12 U.S.C.A. 371c(b)(7).
340
Dodd-Frank Act, Pub. L. No. 111-203, 608 (2010) (amending 12 U.S.C.A.
371c).
341
12 U.S.C.A. 371c(b)(11); 12 C.F.R. 223.2(a)(9).
900
E A person that is not aliated or associated with the FHC

owns or controls a greater percentage of the equity capital of
the portfolio company than is owned or controlled by the
FHC, and no more than one ocer or employee of the FHC
serves as a director or trustee (or individual exercising simi-
lar functions) of the portfolio company; or
E A person that is not aliated or associated with the holding
company owns or controls more than 50% of the voting
shares of the portfolio company, and ocers and employees
of the FHC do not constitute a majority of the directors or
trustees (or individuals exercising similar functions) of the
portfolio company.342
In addition, FHCs may seek to rebut the presumption of control
by submitting evidence to the Federal Reserve.343
[7] Loss of Grandfathered Securities Aliates
If a foreign bank or other foreign company covered by Section
8(a) of the IBA344 is engaged in grandfathered activities under
Section 8(c) of the IBA345 and those activities are nancial activi-
ties or complementary activities,346 it will lose such grandfather
rights upon ling an election to be an FHC.347 For example, a
foreign bank with a grandfathered securities underwriting sub-
sidiary that elects to be an FHC is no longer permitted to rely on
the grandfather authority under Section 8(c) of the IBA but must
rely on Section 4(k)(4)(E) of the BHC Act for the securities
342
12 C.F.R. 223.2(a)(9)(iii), 225.176(b)(3). In each of these situations, the
FHC is assumed to own more than 15% of the total equity of the portfolio
company (thereby triggering the statutory presumption) and less than 25% of
any class of voting securities of the portfolio company (as such, not meeting the
statutory denition of control). See 66 Fed. Reg. 8466, 8481 (Jan. 31, 2001).
343
12 U.S.C.A. 371c(b)(11) (unless the company or shareholder provides
information acceptable to the Federal Reserve to rebut this presumption of
control); 12 C.F.R. 223.2(a)(9)(ii), 225.176(b)(2).
344
12 U.S.C.A. 3106(a).
345
12 U.S.C.A. 3106(c). A foreign bank that, prior to the enactment of the
IBA in 1978, was engaged in activities that were permitted at that time but
prohibited after the enactment of the IBA was, under 8(c) of the IBA, allowed
to continue these activities (grandfathered activities).
346
12 U.S.C.A. 3106(c)(3)(A) refers to any activity that the [Federal
Reserve] has determined to be permissible for [FHCs] under Section 4(k) of the
BHC Act, 12 U.S.C.A. 1843(k).
347
12 U.S.C.A. 3106(c)(3)(A). See 12 U.S.C.A. 1843(l)(1)(C) (ling of decla-
ration of election). Although the IBA provides that the foreign bank or other
foreign company covered by Section 8(a) of the IBA, 12 U.S.C.A. 3106(a), loses
its grandfather rights upon ling a declaration to be an FHC, the meaning
probably is that there must have been an eective election to be an FHC.
901
underwriting activities of its subsidiary.348
10:7 Failure to maintain FHC conditions

[1] 4(m) Letter
If the Federal Reserve nds that an FBO that elected to be
treated as an FHC fails to satisfy the well-capitalized or well-
managed conditions, Section 4(m) of the BHC Act requires the
Federal Reserve to send the FHC a written notice (a 4(m) letter)
to the eect that the FHC is no longer in compliance with one or
both of these conditions.349 Within 45 days after the receipt of a
4(m) letter, the FHC must enter into an agreement with the
Federal Reserve (a cure agreement) setting forth the specic ac-
tions that the FHC will take to bring itself back into compliance
with the well-capitalized and well-managed conditions and the
schedule for achieving that objective.350 The FHC will have 180
days to bring itself back into compliance, subject to extensions for
one or more additional 180-day periods for good cause (the cure
period).351 The 4(m) letter and cure agreement will be treated by
the Federal Reserve as condential supervisory information that
will not be disclosed to the public unless the FHC believes that it
is obligated to do so under the securities laws because the receipt
of the 4(m) letter and any related restrictions on its U.S. activi-
ties and investments is material to investors under the particular
circumstances of the situation.
[2] Restrictions During Cure Period
During the cure period, the FBO and its aliates may not com-
mence any additional activity in the United States or acquire
control or shares of any company under Section 4(k) of the BHC
Act without the prior approval of the Federal Reserve, unless the
Federal Reserve provides otherwise,352 and will be subject to any
other limitations or conditions on the conduct of their U.S. activi-
ties as the Federal Reserve nds appropriate and consistent with
348
12 U.S.C.A. 1843(k)(4)(E).
[Section 10:7]
349
12 U.S.C.A. 1843(m)(1); 12 C.F.R. 225.93(a). Section 4(m)(1) of the
BHC Act requires such Federal Reserve notice only with respect to FHCs that
are engaged, directly or indirectly, in any activity under Section 4(k), (n), or (o)
of the BHC Act other than activities that are permissible for a BHC under
Section 4(c)(8) of the BHC Act.
350
12 U.S.C.A. 1843(m)(2); 12 C.F.R. 225.93(c).
351
12 U.S.C.A. 1843(m)(4).
352
12 C.F.R. 225.93(d)(2).
902
the purposes of the BHC Act.353

[3] Failure to Correct
If the FBO fails to correct the condition within 180 days after
receipt of the 4(m) letter from the Federal Reserve, or such lon-
ger period as the Federal Reserve may permit, the FHC will have
to choose between terminating any activities that are permissible
only for an FHC or divesting any U.S. depository institution al-
iate and any other U.S. commercial banking presence.354 To date,
the Federal Reserve has not ordered any FBO to choose between
its FHC powers and its U.S. commercial banking presence for
failing to comply with the well-capitalized and well-managed
requirements.
[4] CRA Maintenance Requirement
Section 4(m) does not apply to a situation in which a U.S.
insured depository institution or insured U.S. branch of a foreign
bank that is, or is controlled by, an FBO receives a rating of less
than satisfactory at its most recent CRA examination. Instead,
the FHC simply may not (a) commence any new activity under
Section 4(k) of the BHC Act or (b) directly or indirectly acquire
control of any company engaged in any activity under Section
4(k) of the BHC Act.355
However, new investments made in the ordinary course of
engaging in the merchant banking authority or in the ordinary
course of the insurance company portfolio investment authority
are not prohibited if the FHC, directly or indirectly, was already
engaged in such activities prior to the time that an insured de-
pository institution controlled by the FHC or an insured branch
received a CRA rating below satisfactory.356 Thus, an FHC or an
existing merchant banking or insurance subsidiary of an FHC
may continue to make investments under the merchant banking
authority and the insurance company portfolio investment
authority if it was engaged in such nancial activities prior to
353
12 C.F.R. 225.93(d)(1).
354
12 U.S.C.A. 1843(m)(4); 12 C.F.R. 225.93(e).
355
12 U.S.C.A. 1843(l)(2); 12 C.F.R. 225.84(a)(1), 225.94. The Federal
Reserve reads the language to apply only when an insured depository institu-
tion receives a less-than-satisfactory CRA rating while it is under the control of
the FHC. It does not apply immediately after an FHC has acquired a poorly
rated depository institution. If the depository institution does not achieve at
least a satisfactory CRA rating at its rst CRA examination following the
acquisition, the prohibitions apply to the FHC. See 66 Fed. Reg. 400, 404 (Jan.
3, 2001).
356
See 12 U.S.C.A. 1843(l)(2)(B); 12 C.F.R. 225.84(b), 225.94.
903
the less-than-satisfactory rating.357 Similarly, a securities subsid-

iary of such an FHC may continue to underwrite, deal, and make
a market in securities.
The prohibition that applies in case of a failure to maintain a
satisfactory CRA rating does not prevent an FHC from commenc-
ing any additional activity or acquiring control of a company
engaged in any activity under Section 4(c) of the BHC Act358 if
the FHC complies with the applicable notice, approval, and other
requirements.359
10:8 Volcker Rule

[1] General
Section 619 of the Dodd-Frank Act, popularly known as the
Volcker Rule,360 amends the BHC Act361 to prohibit any bank-
ing entity362 from engaging in proprietary trading or sponsoring
or investing in a hedge fund or private equity fund,363 subject
to certain exceptions for permitted activities and a conformance
period.364 The Volcker Rule's prohibitions and other restrictions
will aect the U.S. activities of FBOs that engage in the
prohibited or restricted activities and may aect certain of their
non-U.S. activities. The Volcker Rule is expected to become eec-
357
12 U.S.C.A. 1843(l)(2)(B).
358
12 U.S.C.A. 1843(c).
359
12 C.F.R. 225.84(b)(2).
[Section 10:8]
360
Former Federal Reserve Chairman Paul Volcker, although not formally
involved in the Dodd-Frank Act legislative process, was among the leading
advocates for imposing restrictions on proprietary trading and private funds
activities by banks and their aliates in the Act.
361
The Volcker Rule adds a new Section 13 to the BHC Act. Dodd-Frank
Act, Pub. L. No. 111-203, 619 (2010) (to be codied at 12 U.S.C.A. 1851).
362
The statute denes banking entity as any insured depository institu-
tion (as dened in Section 3 of the FDI Act (12 U.S.C.A. [ ] 1813)), any company
that controls an insured depository institution, or that is treated as a BHC for
purposes of Section 8 of the IBA, and any aliate or subsidiary of any such
entity, not including certain institutions that function solely in a trust or du-
ciary capacity, under certain conditions. 12 U.S.C.A. 1851(h)(1). Under Section
8 of the IBA, a foreign bank with a U.S. commercial banking presence, and any
company deemed to control such a foreign bank, is treated as a BHC. 12
U.S.C.A. 3106(a).
363
For a denition of these terms, see 10:8[3].
364
12 U.S.C.A. 1851(a).
904
tive on July 21, 2012.365

On January 18, 2011, the FSOC, whose members include the
heads of the same agencies tasked with implementation of the
Volcker Rule, released the results of a statutorily mandated study
on the implementation of the Volcker Rule (the FSOC Study).366
The statute requires the agencies responsible for implementing
the Volcker Rule367 to issue nal rules within nine months of the
FSOC Study's release or by October 18, 2011. As of July 31, 2011,
the agencies had yet to propose implementing rules, although the
Federal Reserve issued nal conformance rules, for which it alone
was responsible under the statute, in February 2011.368 What is
currently known about the Volcker Rule's prohibitions on propri-
etary trading and sponsorship of or investment in hedge funds
and private equity funds, and the potential impact of these
prohibitions on FBOs, is therefore based on the statutory text of
the Volcker Rule, the FSOC Study, and other banking law provi-
sions, regulations, and Federal Reserve interpretations with
which the prohibitions may interact.
Before describing how the Volcker Rule will limit certain of the
otherwise permissible expanded powers of an FHC, it is useful to
describe what it does not aect. The Volcker Rule does not aect
an FHC's authority to engage in underwriting, dealing, and mar-
ket making unless one of those activities amounts to proprietary
trading as dened by the Volcker Rule; nor does it aect an
FHC's authority to make investments pursuant to the merchant
banking, insurance company portfolio investment, or other invest-
ment powers contained in the BHC Act unless the investments
365
The statute provides that the Volcker Rule will become eective on the
earlier of (A) 12 months after the date of issuance of nal rules, or (B) two years
after the date of the Volcker Rules enactment. 12 U.S.C.A. 1851(c)(1). The
expected eective date of July 21, 2012, assumes that nal rules will be issued
less than 12 months before the second anniversary of enactment.
366
Fin. Stability Oversight Council, Study & Recommendations on Prohibi-
tions on Proprietary Trading & Certain Relationships with Hedge Funds &
Private Equity Funds (Jan. 18, 2011), available at http://www.treasury.gov/initi
atives/Documents/Volcker%20sec%20%20619%20study%20nal
%201%2018%2011%20rg.pdf (FSOC Study).
367
Although the Federal Reserve generally has exclusive authority to imple-
ment the BHC Act, of which the Volcker Rule is one part, the statute provides
that the Volcker Rule will be implemented in a coordinated rulemaking process
by the Federal Reserve, the OCC, the FDIC, the SEC, and the CFTC. 12
U.S.C.A. 1851(b)(2)(B).
368
12 C.F.R. Pt. 225, subpt. K. See Conformance Period for Entities Engaged
in Prohibited Proprietary Trading or Private Equity Fund or Hedge Fund Activi-
ties, 76 Fed. Reg. 8265, 8265 to 8278 (Feb. 14, 2011). For a discussion of the
conformance rules, see 10:8[7].
905
are made through a hedge fund or private equity fund as

those terms are dened by the Volcker Rule. In particular,
merchant banking investments made directly by a BHC or
through a subsidiary or aliate that is not a hedge fund or
private equity fund are not subject to the limitations of the
Volcker Rule.369
[2] Prohibition on Proprietary Trading
The contours of the prohibition on proprietary trading are not
yet known because the multistage implementation process is not
yet complete. This is particularly true for FBOs because much of
the information released by the implementing agencies to date
applies primarily to domestic banking entities.
The statutory text of the Volcker Rule contains a basic deni-
tion of proprietary trading370 that will require further develop-
ment in regulations but is understood to encompass the stand-
alone or walled o proprietary trading operations that existed
within many U.S. banking entities prior to passage of the
Dodd-Frank Act. Certain activities are specically permitted,
however, and the forthcoming regulatory denitions of these
activities will be crucial in determining the actual scope and
impact of the proprietary trading prohibition. The permitted
activities include:
E trading in U.S. government, agency, state, municipal, and
government-sponsored enterprise instruments;371
E trading in connection with underwriting or market-making-
related activities;372
369
For further discussion, see 10:4[10].
370
The term proprietary trading . . . means engaging as a principal for
the trading account of the banking entity . . . in any transaction to purchase or
sell, or otherwise acquire or dispose of, any security, any derivative, any contract
of sale of a commodity for future delivery, any option on any such security, de-
rivative, or contract, or any other security or nancial instrument that the ap-
propriate Federal banking agencies, the [SEC], and the [CFTC] may, by rule
. . . determine. 12 U.S.C.A. 1851(h)(4). Trading account is dened as any
account used for acquiring or taking positions in the securities and instruments
described in [the denition of proprietary trading] principally for the purpose
of selling in the near term (or otherwise with the intent to resell in order to
prot from short-term price movements), and any such other accounts as the
appropriate Federal banking agencies, the [SEC], and the [CFTC] may, by rule
. . . determine. 12 U.S.C.A. 1851(h)(6).
371
12 U.S.C.A. 1851(d)(1)(A). The permitted activity does not extend to
similar instruments issued by foreign governments.
372
This permitted activity is limited to the extent that any such activities
permitted by this subparagraph are designed not to exceed the reasonably
906
E [r]isk-mitigating hedging activities;373

E trading on behalf of customers;374
E investments in certain small business investment companies,
public welfare investments, or qualied rehabilitation expen-
ditures;375
E trading by a regulated insurance company or its aliate
solely for the general account of the regulated insurance
company in compliance with applicable insurance company
investment laws;376
E such other activity as the agencies determine would
promote and protect the safety and soundness of the bank-
ing entity and the nancial stability of the United States;377
and
E as discussed in Section 10:8[5], certain oshore trading
activities by non-U.S. entities.378
Permitted activities may not include, however, any activity
that would involve or result in a material conict of interest . . .
between the banking entity and its clients, customers, or
counterparties; result, directly or indirectly, in a material
exposure by the banking entity to high-risk assets or high-risk
trading strategies; or pose a threat to U.S. nancial stability or
the safety and soundness of the banking entity.379 The agencies
have not yet proposed rules regarding this backstop provision.
In addition, the agencies may impose additional capital require-
ments and quantitative limitations, including diversication
requirements, if deemed appropriate to protect the safety and
soundness of banking entities engaged in activities excepted from
the proprietary trading prohibition.380 The Volcker Rule also
contains a general anti-evasion provision.381
Compliance with the Volcker Rule prohibition on proprietary
trading will require new compliance policies, procedures, and
expected near term demands of clients, customers, or counterparties. 12

U.S.C.A. 1851(d)(1)(B).
373
12 U.S.C.A. 1851(d)(1)(C).
374
12 U.S.C.A. 1851(d)(1)(D).
375
12 U.S.C.A. 1851(d)(1)(E).
376
12 U.S.C.A. 1851(d)(1)(F).
377
12 U.S.C.A. 1851(d)(1)(J).
378
12 U.S.C.A. 1851(d)(1)(H).
379
12 U.S.C.A. 1851(d)(2)(A).
380
12 U.S.C.A. 1851(d)(3).
381
12 U.S.C.A. 1851(e)(2).
907
reporting for banking entities and the agencies alike. The agen-
cies must issue rules, which have not yet been proposed, regard-
ing internal controls and record-keeping.382 More broadly, the
FSOC Study recommends a four-part implementation and
supervisory framework:
E A programmatic compliance regime requiring banking enti-
ties to develop internal controls and compliance regimes
designed to ensure that proprietary trading does not
migrate into permitted activities;
E Required analysis and reporting to the agencies of quantita-
tive metrics, including revenue-based metrics, revenue-to-
risk metrics, inventory metrics, and customer-ow metrics;
E Review and oversight by banking supervisors; and
E Enforcement procedures for requiring the termination of
impermissible activities and the liquidation of impermissible
investments, in addition to other supervisory actions or ap-
plicable provisions of law.383
[3] Prohibition on Certain Relationships with Hedge
Funds and Private Equity Funds
The Volcker Rule also prohibits a banking entity from sponsor-
[ing] or acquir[ing] or retain[ing] any equity, partnership or
other ownership interest in any hedge fund or private equity
fund, subject to certain exceptions and a conformance period.
The term sponsor is dened in the statutory text as:
E [T]o serve as a general partner, managing member, or
trustee of a hedge fund or private equity fund;
E [I]n any manner to select or control (or to have employees,
ocers, or directors, or agents who constitute) a majority of
the directors, trustees or management of a hedge fund or
private equity fund; or
E [T]o share with a [hedge fund or private equity] fund, for
corporate, marketing, promotional, or other purposes, the
same name or a variation of the same name.384
The terms hedge fund and private equity fund are both
dened in the statutory text as any issuer that would be an
investment company, as dened in the 1940 Act but for Section
3(c)(1) or (7) of that Act, or such similar funds as the agencies
382
12 U.S.C.A. 1851(e)(1).
383
FSOC Study, note 361, at 56.
384
12 U.S.C.A. 1851(h)(5).
908
may armatively designate by rule.385 This denition is very

broad. The exemptions under Sections 3(c)(1) and (7) of the 1940
Act can be used to exempt any investment company regardless of
how it invests or what it invests in so long as certain limits on
the number or nancial characteristics of its investors are
satised. These exemptions are therefore frequently relied upon
by entities that have none of the attributes of traditional hedge
funds or private equity funds.386 It remains to be seen whether
the agencies will correct the overbreadth in the general deni-
tion, which sweeps within the reach of the Volcker Rule's restric-
tions many entities that Congress may not have intended to
capture, by granting exemptions in the nal rules for issuers that
are not properly treated as hedge funds or private equity funds.
Subject to the same limitations on permitted activities
described in the discussion of proprietary trading above, and any
additional restrictions or limitations that the agencies determine
to impose, the Volcker Rule excludes from the ban on sponsoring
or investing in hedge funds or private equity funds all of the
permitted activities listed above under proprietary trading other
than those that clearly relate solely to proprietary trading.
The Volcker Rule also establishes an asset management exemp-
tion that permits a banking entity to organiz[e] and oer[] a
hedge fund or private equity fund, including to sponsor and make
de minimis coinvestments in such a fund, if all of the following
conditions are met:
E [T]he banking entity provides bona de trust, duciary, or
investment advisory services;
E [T]he fund is organized and oered only in connection with
the provision of [such services] and only to persons that are
customers of such services of the banking entity;
E [T]he banking entity does not acquire or retain an equity
interest, partnership interest, or other ownership interest in
the fund[]387 except for certain de minimis coinvestments,
which must meet the following conditions:
E Although the banking entity may make an initial seed
385
12 U.S.C.A. 1851(h)(2); Investment Company Act of 1940 3(c)(1), (7),
15 U.S.C.A. 80a-3.
386
Certain legislators appear to have recognized this. Rep. Frank (D-MA)
and Rep. Himes (D-CT) sought in a colloquy in the legislative record to clarify
that the Volcker Rule is intended to prohibit investments in traditional hedge
funds and private equity funds and not subsidiaries or joint ventures that are
used to hold other investments. 156 Cong. Rec. H5226 (daily ed. June 30,
2010).
387
12 U.S.C.A. 1851(d)(1)(G).
909
investment in up to 100% of the total ownership

interests of a fund, the banking entity must actively
seek unaliated investors to reduce or dilute its invest-
ment to not more than 3% of the total ownership
interests of the fund within one year after the fund's
establishment (with the possibility of a two-year exten-
sion); and
E The investment must be immaterial to the banking
entity (to be dened by the agencies pursuant to
rulemaking) but in no case may the aggregate of all of
the banking entity's permitted de minimis investments
in hedge funds or private equity funds exceed 3% of the
Tier 1 capital of the banking entity;388
E The banking entity complies with the Super 23A and 23B
restrictions on transactions with such funds, as described in
Section 10:8[4];
E [T]he banking entity does not, directly or indirectly,
guarantee, assume, or otherwise insure the obligations or
performance of the fund (e.g., bail out the fund) or of any
fund in which such fund invests;
E The banking entity does not share with the fund for
corporate, marketing, promotional, or other purposes, the
same name or a variation of the same name;
E [N]o director or employee of the banking entity takes or
retains an equity interest, partnership interest, or other
ownership interest in the fund except for any director or
employee of the banking entity who is directly engaged in
providing investment advisory or other services to the fund;
and
E [T]he banking entity discloses to prospective and actual
investors in the fund, in writing, that any losses in [the]
fund are borne solely by investors in the fund and not by the
banking entity, and otherwise complies with any additional
rules that the agencies may issue that are designed to
ensure that such losses are so borne.389
388
12 U.S.C.A. 1851(d)(4). Note that the Volcker Rule prohibits any acquisi-
tion by a banking entity of an ownership interest in a hedge fund or private
equity fund except pursuant to a permitted activity such as in connection with
the asset management exemption or the exemption for certain risk-mitigating
hedging activities.
389
12 U.S.C.A. 1851(d)(1)(G).
910
[4] Limitations on Certain Transactions with

Sponsored, Advised, Managed, or Organized and Of-
fered Hedge Funds and Private Equity Funds
The Volcker Rule prohibits any banking entity that serves,
directly or indirectly, as the investment manager or investment
adviser of a hedge fund or private equity fund, or that organizes
and oers or sponsors such a fund pursuant to the asset manage-
ment exemption, and any aliate of such banking entity from
entering into a covered transaction as dened in Section 23A of
the FRA with any such fund, or any hedge fund or private equity
fund controlled by such fund, as if the banking entity or an ali-
ate, other than the fund, were a member bank and the fund were
its aliate.390 In addition, any transactions between any such
banking entity and any such fund will be subject to Section 23B
of the FRA as if the banking entity were a member bank, and the
fund were its aliate.391
This prohibition is commonly referred to as Super 23A to
distinguish it from regular Section 23A of the FRA. Unlike Super
23A, regular 23A only applies to covered transactions between an
insured depository institution and its aliates whereas Super
23A applies to covered transactions between any banking entity
(including a BHC, an FBO, and any of their subsidiaries or ali-
ates) and any covered fund. In addition, Super 23A imposes an
absolute ban on any covered transactions that fall within its
scope, whereas regular 23A generally imposes only certain nu-
merical limitations and collateral requirements on covered
transactions within its scope.392
The Volcker Rule provides that the Federal Reserve may grant
an exemption from the Super 23A prohibition for purposes of
permitting a banking entity to enter into any prime brokerage
transaction, which is undened in the statutory text but pre-
sumably will be dened by regulation, with any hedge fund or
private equity fund in which a hedge fund or private equity fund
managed, sponsored, or advised by such banking entity393 has
taken an equity, partnership, or other ownership interest if:
390
See 10:6[6].
391
Section 23B requires that many transactions, including any covered
transaction under Section 23A, between a bank and an aliate be conducted
on market terms. 12 U.S.C.A. 371c-1(a). For more information on 23B, see
10:6[6].
392
For a detailed discussion of regular Section 23A, see 5:2.
393
Presumably, the omission of organized and oered in the 23B provision,
in light of its inclusion in the Super 23A provision, is a drafting oversight.
911
E The banking entity is in compliance with each of the condi-

tions set forth in the asset management exemption described
above;
E The CEO or equivalent ocer of the banking entity certies
in writing annually that the antibailout condition of the as-
set management exemption is satised; and
E The Federal Reserve has determined that such transaction
is consistent with the safe and sound operation and condi-
tion of the banking entity.394
[5] Application to FBOs and Extraterritorial
Application
Although the Volcker Rule's prohibitions and restrictions will
clearly impact the U.S. proprietary trading and private funds
activities of FBOs, in the absence of implementing regulations, it
is dicult to predict whether and to what degree the Volcker
Rule's prohibitions and restrictions will aect any such activities
engaged in by FBOs outside the United States.
The statutory text of the Volcker Rule specically permits FBOs
to engage in proprietary trading pursuant to Section 4(c)(9)395 or
(13)396 of the BHC Act, provided that the trading occurs solely
outside the United States.397 Likewise, the statutory text speci-
cally permits sponsorship of and investments in hedge funds and
private equity funds conducted by a banking entity pursuant to
the Section 4(c)(9) or (13) exemptions solely outside the United
States provided that no ownership interest in such hedge fund
or private equity fund is oered for sale or sold to a U.S.
resident.398 In both cases, the banking entity also must not be
directly or indirectly controlled by a banking entity organized
under U.S. federal or state law.399
The agencies have not yet dened solely outside the United
States or otherwise indicated how narrowly or broadly they will
interpret these permitted activities. The extraterritorial impact
of the Volcker Rule must be read in light of a variety of sources,
394
12 U.S.C.A. 1851(f)(3).
395
12 U.S.C.A. 1843(c)(9); see 9:1 et seq. for a full discussion of this
provision.
396
12 U.S.C.A. 1843(c)(13); see 9:1 et seq. for a full discussion of this
provision.
397
12 U.S.C.A. 1851(d)(1)(H).
398
12 U.S.C.A. 1851(d)(1)(I).
399
12 U.S.C.A. 1851(d)(1)(H) to (I).
912
including the U.S. Supreme Court's decision in Morrison v.

National Australia Bank Ltd.,400 the principles of national treat-
ment, competitive equality and comparable home-country stan-
dards, Sections 2(h)(2) and 4(c)(9) of the BHC Act, and the express
exemptions for oshore activities in the Volcker Rule itself. It is
not clear whether the agencies will interpret the oshore activi-
ties exemptions merely to be consistent with the general
presumption against extraterritorial application in Morrison or
whether the agencies will interpret them as providing the sort of
clearly expressed armative intention of extraterritorial ap-
plication required by Morrison, subject only to the specic exemp-
tion for proprietary trading that occurs solely outside the United
States and for sponsoring or investing solely outside the United
States in hedge funds or private equity funds that are not oered
to U.S. residents. The former interpretation seems more consis-
tent with certain statements in the legislative record,401 but in
any event, FBOs will face the potentially signicant compliance
burden of ensuring that any permitted activities remain outside
the extraterritorial reach of the Volcker Rule.
[6] Additional Limitations
The agencies may also impose additional capital requirements
and quantitative limitations if deemed necessary to protect the
safety and soundness of banking entities engaged in such
activities.
400
In Morrison, the U.S. Supreme Court overruled decades of lower court
case law by holding that federal legislation is presumed to apply only within the
territory of the United States unless the legislation clearly expresse[s] an af-
rmative intention by Congress that it have extraterritorial application. 130 S.
Ct. 2869, 2877 (2010).
401
See Statement by Sen. Hagan, 156 Cong. Rec. S5889-90 (daily ed. July
15, 2010) (Finally, [the oshore exemption for funds activity] permits certain
banking entities to operate hedge and private equity funds outside of the United
States provided that no ownership interest in any hedge or private equity fund
is oered for sale or sold to a U.S. resident. For consistency's sake, I would
expect that, apart from the U.S. marketing restrictions, these provisions will be
applied by the regulators in conformity with and incorporating the Federal
Reserve's current precedents, rulings, positions, and practices under Sections
4(c)(9) and 4(c)(13) of the BHC Act so as to provide greater certainty and utilize
the established legal framework for funds operated by bank holding companies
outside of the United States.); Colloquy Between Sens. Merkley and Levin, 156
Cong. Rec. S5897 (daily ed. July 15, 2010) (the exemption seeks to maintain a
level playing eld by prohibiting a foreign bank from improperly oering its
hedge fund and private equity funds services to U.S. persons when such oering
could not be made in the United States).
913
[7] Conformance Period

The Volcker Rule provides for a two-year general conformance
period, beginning on the eective date, during which banking
entities in existence as of July 21, 2010, must bring their activi-
ties and investments into compliance with the Volcker Rule's
prohibitions and restrictions.402 Banking entities may apply to
the Federal Reserve for up to three one-year extensions of the
conformance period and for one up to ve-year extension for
certain investments in illiquid funds.403 The Federal Reserve is-
sued nal rules implementing the conformance period provisions
of the Volcker Rule in February 2011.404 The nal rule release
makes clear that the conformance period applies to all covered
activities, investments, and relationships, e.g., proprietary trad-
ing, investments in hedge funds and private equity funds, and
covered transactions with advised or sponsored funds.405 Nei-
ther the release nor the rules makes any explicit distinction be-
tween U.S. and non-U.S. banking entities.406
The rules and the release make clear that a banking entity
must apply for each extension separately,407 at least 180 days
prior to the expiration of the relevant conformance period or
already-granted extension period.408 The Federal Reserve will
consider applications for extensions in light of all the facts and
circumstances related to the activity, investment, or fund, includ-
ing, to the extent relevant, certain criteria identied in the
rules.409 In addition, the Federal Reserve may impose conditions
on extensions deemed necessary or appropriate to protect the
402
12 U.S.C.A. 1851(c)(2); 12 C.F.R. 225.181(a). Companies that become
banking entities after July 21, 2010, will be entitled to a conformance period
equal to the longer of the two-year general conformance period and two years
after the date on which they became banking entities, plus extensions. 12 C.F.R.
225.181(a)(2) to (3).
403
12 C.F.R. 225.181(a)(3), (b).
404
12 C.F.R. Pt. 225, Subpt. K. See Conformance Period for Entities Engaged
in Prohibited Proprietary Trading or Private Equity Fund or Hedge Fund Activi-
ties, 76 Fed. Reg. 8265 (Feb. 14, 2011).
405
76 Fed. Reg. 8265, 8267.
406
76 Fed. Reg. 8265 at 8266 ([T]he nal rule does not address several top-
ics suggested by commenterssuch as, for example, the general application of
the Volcker Rule to banking entities that are . . . foreign entities.).
407
76 Fed. Reg. 8265 at 8267.
408
The application must address reasons why the extension should be
granted and give a detailed explanation of the banking entity's plan for divest-
ment or conformance. 12 C.F.R. 225.181(c)(1) to (2).
409
12 C.F.R. 225.181(d).
914
safety and soundness of the banking entity or the nancial stabil-

ity of the United States, address material conicts of interest or
other unsound banking practices, or otherwise further the
purposes of [the Volcker Rule].410Although the rules provide for
the possibility of one up to ve-year extended conformance period
for investments in illiquid funds, as required by the statutory
text, the rules dene the scope of eligible investments quite
narrowly.411 A risk exists that banking entities will be required to
unwind illiquid investments at steep discounts to fair value.412
The Federal Reserve indicated in the nal rule release that it
expects to review the nal rule after completion of the inter-
agency rulemaking process . . . to determine whether modica-
tions or adjustments to the rule are appropriate in light of nal
rules adopted under that section.413
10:9 Swaps pushout rule

When it becomes eective,414 Section 716 of the Dodd-Frank Act
(the swaps pushout rule) will prohibit certain types of Federal
assistance from being provided to swap dealers and major swap
participants, referred to as swaps entities.415 Section 716 is
called the swaps pushout rule because it will require any swaps
410
12 C.F.R. 225.181(e).
411
See 12 C.F.R. 225.180(g) to (i), 225.181(b)(2) to (3).
412
12 C.F.R. 225.181(e)(1).
413
76 Fed. Reg. 8265, 8266.
[Section 10:9]
414
The swaps pushout rule will become eective on July 16, 2013. Insured
depository institutions are eligible for up to an additional two-year transition
period, plus the possibility of a discretionary one-year extension. There does not
appear to be a similar transition period for uninsured branches and agencies of
foreign banks.
415
For ease of presentation, the term swap will be used in this chapter to
refer to both swaps and security-based swaps, the term swap dealers will
be used in this chapter to refer to both swap dealers and security-based swap
dealers, and the term major swap participant will be used in this chapter to
refer to both major swap participants and major security-based swap
participants. In general, a swap dealer is any person who: (i) holds itself out
as a dealer in swaps; (ii) makes a market in swaps; (iii) regularly enters into
swaps with counterparties as an ordinary course of business for its own ac-
count; or (iv) is commonly known as a dealer or market maker in swaps.
However, an insured depository institution is not considered to be a swap dealer
to the extent it oers to enter into a swap with a customer in connection with
originating a loan with that customer. In general, a major swap participant is a
person who is not a swap dealer and (i) who maintains a substantial position in
swaps for any of the major swap categories as determined by the CFTC and
SEC, excluding positions held for hedging or mitigating commercial risk; or (ii)
915
entity that receives federal assistance, including the U.S.

branches, agencies, or insured depository institution subsidiaries
of a foreign bank, to terminate or push any prohibited swaps
activities into an aliate to continue being eligible for federal
assistance.
The term federal assistance is broadly dened as the use of
any advances from any Federal Reserve credit facility or discount
window that is not part of a program or facility with broad-based
eligibility under Section 13(3)(A) of the FRA or FDIC insurance
or guarantees for the purpose of:
E making any loan to, or purchasing any stock, equity inter-
est, or debt obligation of, any swaps entity;
E purchasing the assets of any swaps entity;
E guaranteeing any loan or debt issuance of any swaps entity;
or
E entering into any assistance arrangement (including tax
breaks), loss sharing, or prot sharing with any swaps
entity.
Although most U.S. branches and agencies of foreign banks are
no longer eligible for FDIC deposit insurance, they do have ac-
cess to the Federal Reserve's discount window. The swaps
pushout rule will therefore require such branches and agencies to
push any prohibited swaps activities into a separate aliate or to
a non-U.S. oce that does not have access to the discount window
as a condition for the U.S. branches and agencies to have
continued access to the discount window. Pushing swaps activi-
ties into an aliate involves a number of costs; for example, the
pushout aliate would need to be separately capitalized and
funded, and trades with existing customers would need to be
separately documented.
A major aw of the swaps pushout rule is that many of its key
provisions, including exemptions and grandfathering provisions,
apply only to insured depository institutions and therefore by
their terms do not apply to most branches and agencies of foreign
banks given that almost no branch or agency is an insured depos-
itory institution or even eligible for FDIC deposit insurance. The
swaps pushout rule includes an express exemption for insured
depository institutions that limit their swaps dealing activities to
the following activities:
E hedging or similar risk mitigation directly related to their
activities; or
whose outstanding swaps create substantial counterparty exposure that could

have serious adverse eects on the nancial stability of the U.S. banking system
or nancial markets.
916
E swaps involving rates or reference assets that are permis-

sible for investment by a national bank under the portion of
the National Bank Act contained in 12 U.S.C.A. 24
(Seventh), other than uncleared credit default swaps, includ-
ing those referencing the credit risk of asset-backed
securities.416
In addition, the swaps pushout rule provides that an insured
depository institution is not considered to be a swaps entity,
and therefore is not required to push out its swaps activities, if it
is merely a major swap participant and not a swap dealer. This
means, for example, that an insured depository institution sub-
sidiary of a foreign bank is permitted to maintain a substantial
position in swaps whereas an uninsured branch or agency of the
foreign bank is prohibited from maintaining a substantial posi-
tion in swaps, excluding positions held for hedging. Furthermore,
such uninsured branch or agency may be required to push out
swaps that were entered into prior to the eectiveness of the
swaps pushout rule into an aliate. This is because the grandfa-
thering provision in the swaps pushout rule appears to apply
only to insured depository institutions. As a result, to the extent
that foreign banks use their branches and agencies as swaps
booking entities, existing swaps may need to be rebooked into a
separate entity to preclude the branch or agency from being
deemed a major swap participant. This would require renegotia-
tion and documentation of swaps agreements and capitalization
of the new booking entity among other costs.
The omission of uninsured branches and agencies of foreign
banks from the exemption for insured depository institutions was
clearly an oversight. Senator Blanche Lincoln, the sponsor of the
swaps pushout rule, issued a oor statement urging the regula-
tors to extend the exemptions to the branches and agencies of
416
The National Bank Act (NBA) permits national banks to invest in a wide
range of assets, including loans; promissory notes; drafts; bills of exchange;
other extensions of credit; foreign currency; coins; bullion, which includes gold,
silver, and certain other precious metals; U.S. government and agency securi-
ties; certain investment shares in investment companies as long as the assets
held by the investment companies are themselves bank permissible; and debt
securities that are considered investment securities, generally marketable
investment grade debt securities but also including, to a limited degree, non-
investment grade debt securities that the bank reasonably believes will be
repaid as to principal and interest and to be reasonably liquid. In addition, the
OCC has the power to interpret the NBA to allow other instruments to be
permissible investments. The NBA expressly prohibits national banks from
dealing in equity securities.
917
foreign banks.417 However, regulators have indicated that they do

not have the regulatory authority to extend the exemptions
granted to insured depository institutions to the branches and
agencies of foreign banks. While many, including Senator
Christopher Dodd,418 believed that this would be xed through a
technical amendment to the Dodd-Frank Act, to date, this has
not occurred.
Thus, although the dierential treatment of U.S. banks and
the U.S. branches and agencies of foreign banks is widely viewed
as a drafting error, the swaps pushout rule may have the
unintended consequence of requiring some foreign banks to
reorganize their U.S. swaps activities to a greater extent than
U.S. banks. At the same time, foreign banks may have an
advantage with respect to their swaps activities outside of the
United States, depending on whether U.S. regulators decide to
extend the swaps pushout rule to the foreign branches and agen-
cies of U.S. banks. In addition, because no other jurisdiction has
adopted a regulation comparable to the swaps pushout rule,
foreign banks will be able to continue to engage in swap dealing
activities from what is typically the most well-capitalized entity
in the corporate structurethe bank itself.
10:10 Conclusion
In sum, an FBO may become an FHC if it satises the well-
capitalized and well-managed conditions and if it has or controls
a U.S. insured depository institution or an insured U.S. branch,
the CRA condition. If the FBO makes an eective election to
become an FHC, the FBO is permitted to engage in an expanded
range of activities, including insurance underwriting, securities
underwriting and dealing, merchant banking, and insurance
company portfolio investments, subject to the Volcker Rule and
the swaps pushout rule when those provisions of the Dodd-Frank
Act become eective. The main consequences of becoming an
FHC are the advantages of these expanded powers and certain
streamlined procedures for commencing such activities and
acquiring new companies engaged in such activities. If an FBO
fails to satisfy the well-capitalized and well-managed conditions
and is unable to cure these deciencies during a cure period of
180 days, plus such additional time as the Federal Reserve may
allow, it can be forced to terminate its expanded activities or its
U.S. commercial banking presence. To date, the Federal Reserve
417
Statement of Senator Blanche Lincoln, 156 Cong. Rec. S5904 (2010).
418
Statement of Senator Christopher Dodd, 111 Cong. Rec. S 5903 to 5904
(2010).
918
has not required any FBO to make this choice.
919

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Chapter 10

Foreign Banks as U.S. Financial

*The authors express their gratitude to Thomas Clarke, Andrew Fei,

[2] Incidental Activities

10:5 Streamlined notice and approval procedures

as a U.S. nancial holding company (FHC). We rst describe the

10:2 Legal framework

ing in, or directly or indirectly owning or controlling any company

Reserve) principally through its Regulation Y.5

nesses conducted abroad.8

investments.12 FHCs are also permitted to engage in activities

empted certain companies that became bank holding companies

ada (Canada); Royal Bank of Canada (Canada); The Toronto-Dominion Bank

[4] Overlapping Sources of Authority

BHC Act, subject to the Volcker Rule when that provision

1930s. Among other things, it is in the process of creating a new

10:3 Conditions and procedures for becoming an FHC

E the FBO, if it is or controls a foreign bank with a U.S. com-

election to be an FHC and a certication that it meets the

justied but only in limited circumstances where the foreign

or that the election is eective prior to such 31st day.45 In the

bank's capital is comparable to the capital that would be

of the regular examination cycle and thus cannot determine

banks with a U.S. commercial banking presence that are compa-

risk-based capital rules. Under this method, if the home country

risk-weighted assets ratios. See BCBS, International Convergence of Capital

country has not adopted risk-based capital standards consistent

Basel II, the Federal Reserve evaluate[s] the capital of the

sions in the Gramm-Leach-Bliley Act that permit a foreign bank to be an FHC,

that apply to systemically important nancial companies.89 The

as part of its enhanced prudential standards for systemically important nancial

banking presence that have $50 billion or more in consolidated

incorporated or organized in a country other than the United States and is

and liquidity requirements based on calculations under home-

grants the Federal Reserve authority to exempt the U.S. opera-

ing presence that are controlled by it are well managed.104

. . . institution is well managed.108 Although this provision does

10:4 Expanded powers of an FHC

ing or controlling companies engaged in, activities that are

dance with certain procedures, to be nancial in nature.122 It also

nomic advisory services, including advising an investment

coverage, deductibles, and premiums for an insurance client). Letter from J.

E Merchant Banking. Acquiring controlling or noncontrolling

E Derivative Contracts. Engaging as principal in forward

E Travel Agency. Operating a travel agency in connection

or own or control companies engaged in, any other activity that

any company seeking to provide nancial services in the

tions that they negotiate and consummate themselves.155

from the Federal Reserve by ling a notice in accordance with

ties and to ensure that the proposed activities would produce

E the FHC causes the company to conform, terminate, or divest

Act,169 the power granted by Section 4(k)(4)(E) of the BHC Act is

de underwriting, dealing, or market-making purposes, or nds

Bank-Ineligible Activities of Subsidiaries of Bank Holding Companies Engaged

Although the regulation of insurance companies is almost

otherwise permitted by Section 4 of the BHC Act,180 subject to the

limitations. An FHC is free to choose whichever source of author-

the company. The FHC is permitted to make the investment