[Federal Register: December 9, 2003 (Volume 68, Number 236)]
[Rules and Regulations]
[Page 68489-68493]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09de03-2]
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DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Parts 11 and 16
[Docket No. 03-25]
RIN 1557-AC12
Reporting and Disclosure Requirements for National Banks With
Securities Registered Under the Securities Exchange Act of 1934;
Securities Offering Disclosure Rules
AGENCY: Office of the Comptroller of the Currency.
ACTION: Final rule.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
revising its regulations to reflect amendments to the Securities
Exchange Act of 1934 (Exchange Act) made by the Sarbanes-Oxley Act of
2002 (Sarbanes-Oxley Act). These amendments to the Exchange Act give
the OCC the authority to administer and enforce a number of the
Sarbanes-Oxley Act's new reporting, disclosure, and corporate
governance requirements with respect to national banks that have a
class of securities registered under the Exchange Act. We are also
revising our securities offering disclosure rules for national banks
that issue securities that are not subject to the registration
requirements of Securities Act of 1933.
EFFECTIVE DATE: This rule is effective on January 8, 2004.
FOR FURTHER INFORMATION CONTACT: Mary Ann Nash, Counsel, 202-874-5090;
or Martha Clarke, Counsel, Legislative & Regulatory Activities
Division, 202-874-5090.
SUPPLEMENTARY INFORMATION:
Background
Section 12(i) of the Exchange Act vests the OCC with the powers,
functions, and duties otherwise vested with the Securities and Exchange
Commission (SEC) to administer and enforce certain provisions of the
Exchange Act as they apply to national banks that have a class of
securities registered under the Exchange Act (registered national
banks).\1\
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\1\ Under section 12(i), the OCC and the other Federal banking
agencies have the power to issue rules that are necessary to carry
out their functions under the Exchange Act. These rules are required
to be substantially similar to the SEC's rules unless a Federal
banking agency determines that substantially similar regulations
with respect to the insured depository institutions that it
supervises are not necessary or appropriate in the public interest
or for the protection of investors and the agency publishes its
findings in the Federal Register within 60 days after the SEC issues
regulations.
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Prior to the enactment of the Sarbanes-Oxley Act,\2\ section 12(i)
gave the OCC the authority to administer and enforce sections 12, 13,
14(a), 14(c), 14(d), 14(f), and 16 of the Exchange Act. The Sarbanes-
Oxley Act amended some of those sections of the Exchange Act to impose
additional requirements and, as a result, the OCC will administer and
enforce these new requirements as they apply to registered national
banks. In addition, the Sarbanes-Oxley Act amended section 12(i) to add
new sections of the securities laws to the list of provisions that are
enforced and administered by the OCC.
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\2\ Pub. L. 107-204, 116 Stat. 745 (July 30, 2002).
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Titles III and IV of the Sarbanes-Oxley Act include a number of
provisions that are designed to improve the corporate governance and
financial disclosures of issuers that have a class of securities
registered under sections 12(b) or 12(g) of the Exchange Act or that
are required to file periodic reports with the SEC under section 15(d)
of the Exchange Act (public issuers). All registered national banks are
public issuers for purposes of the law.
Pursuant to the amendments to section 12(i) made by the Sarbanes-
Oxley Act, the OCC administers and enforces the following new
provisions of the Act with respect to registered national banks in
addition to any new requirements that were added through amendments to
sections of the Exchange Act that were enforced by the OCC prior to the
enactment of the Sarbanes-Oxley Act.
[sbull] Section 301[hairsp][hairsp][hairsp]\3\ establishes certain
oversight, independence, funding, and other requirements for the audit
committees of certain public issuers. It requires the SEC to issue
implementing rules that prohibit any national securities exchange or
national securities association from listing the securities of an
issuer that fails to comply with these audit committee requirements.
The SEC issued final rules to implement section 301 on April 9,
2003.\4\ The rules took effect on April 25, 2003. In the rules, the SEC
applies section 301 only to public issuers listed on a national
securities exchange or listed in an automated inter-dealer quotation
system of a national securities association.\5\ Thus, section 301
applies only to registered national banks that are so listed.
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\3\ 15 U.S.C. 78j-1(m).
\4\ 68 FR 18788 (April 16, 2003).
\5\ Id. at 18790; 17 CFR 240.10A-3(e)(9).
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[sbull] Section 302 requires the SEC to adopt rules that require
the principal executive officers and principal financial officers of
public issuers to
[[Page 68490]]
include certain certifications in the issuer's annual and quarterly
reports filed under the Exchange Act. The SEC issued final rules
implementing this section on August 29, 2002.\6\ The rules took effect
on the same day.
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\6\ 67 FR 57275 (Sept. 9, 2002). Section 906 of the Sarbanes-
Oxley Act is a criminal statute and includes another certification
requirement that is separate from the certification requirements of
section 302. Section 906 provides that all periodic reports that
contain financial statements and that are filed by public issuers
under sections 13(a) or 15(d) of the Exchange Act must include a
written certification by the chief executive officer and chief
financial officer (or equivalent) that (1) the report complies with
the requirements of section 13(a) or 15(d) of the Exchange Act, and
(2) the information contained in the periodic report fairly
presents, in all material respects, the financial condition and
results of operations of the issuer. Section 906 became effective on
July 30, 2002, and persons who knowingly or willfully make false
certifications are subject to specified criminal penalties. See 18
U.S.C. 1350. The plain language of section 906 specifically refers
to periodic reports filed by a public issuer with the SEC although
Section 12(i) of the Exchange Act requires bank issuers to file
periodic reports with their banking regulator. Because section 906
is a criminal statute, the Department of Justice has jurisdiction to
determine whether the requirements of the statute apply to issuers
that file their periodic reports with the Federal banking agencies
rather than the SEC. Until the Department of Justice clarifies this
issue, national bank issuers should continue to file their section
906 certifications as part of the periodic reports that they file
with the OCC.
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[sbull] Section 303 requires the SEC to issue rules prohibiting the
officers and directors of public issuers, and persons acting under
their direction, from fraudulently influencing, coercing, manipulating,
or misleading the issuer's independent auditor for purposes of
rendering the issuer's financial statements materially misleading. The
SEC published a final rule implementing this section on May 28,
2003.\7\ The rule took effect on June 27, 2003.
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\7\ 68 FR 31820 (May 28, 2003).
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[sbull] Section 304 requires the chief executive officer and chief
financial officer of public issuers to reimburse the issuer for certain
compensation and profits received if the issuer is required to restate
its financial reports due to material noncompliance, as a result of
misconduct, with any financial reporting requirements under the Federal
securities laws. The requirements of section 304 took effect on July
30, 2002. No implementing regulations are required.
[sbull] Section 306(a) prohibits the directors and executive
officers of any public issuer of equity securities from purchasing,
selling, or transferring any equity security acquired by the director
or executive officer in connection with his or her service as a
director or executive officer during any ``blackout period'' with
respect to the security. A ``blackout period'' generally is a period of
three consecutive business days during which trading in the issuer's
securities is suspended for 50% or more of the beneficiaries of the
issuer's individual account plans. The SEC adopted final regulations
pursuant to section 306(a) on January 26, 2003.\8\ The rules took
effect on the same day.
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\8\ 68 FR 4338 (Jan. 28, 2003).
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[sbull] Section 401(b) requires the SEC to issue rules that
prohibit issuers from including misleading pro forma financial
information in their reports under the securities laws or in any public
release. Issuers also must reconcile any pro forma financial
information included in such filings or public releases with the
issuer's financial statements prepared in accordance with generally
accepted accounting principles (GAAP). The SEC has issued final
implementing regulations,\9\ which apply to releases and disclosures
made after March 28, 2003, and to annual and quarterly reports filed
with respect to fiscal periods ending after March 28, 2003.
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\9\ 68 FR 4820 (Jan. 30, 2003).
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[sbull] Section 404 mandates that the SEC issue rules that require
all annual reports filed under section 13(a) or 15(d) of the Exchange
Act to include certain statements and assessments related to the
issuer's internal control structures and procedures for financial
reporting.\10\ There is no statutory deadline for adoption of final
rules implementing the requirements of section 404. The SEC adopted
final regulations on June 5, 2003.\11\
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\10\ Section 404 also requires the registered public accounting
firm that prepares or issues the audit report for the issuer's
annual report to attest to, and report on, the issuer's assessment
of its internal control structures and procedures for financial
reporting.
\11\ 68 FR 36636 (June 18, 2003). The effective dates vary
depending upon the type of filer and the particular requirement.
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[sbull] Section 406 mandates that the SEC adopt rules that require
public issuers to (1) disclose in their periodic reports filed under
the Exchange Act whether the issuer has adopted a code of ethics for
its senior financial officers and, if not, the reasons why such a code
has not been adopted; and (2) promptly disclose on Form 8-K any change
to, or waiver of, the issuer's code of ethics. The SEC published a
final rule implementing this section on January 31, 2003.\12\ The
requirements of that rule took effect on March 3, 2003.
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\12\ 68 FR 5110 (Jan. 31, 2003).
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[sbull] Section 407 mandates that the SEC adopt rules that require
public issuers to disclose in their periodic reports filed under the
Exchange Act whether the audit committee of the issuer includes at
least one financial expert and, if not, the reasons why the audit
committee does not include such an expert. The SEC published a final
rule implementing this section on January 31, 2003.\13\ The
requirements of that rule took effect on March 3, 2003.
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\13\ 68 FR 5110 (Jan. 31, 2003).
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Description of the Final Rule
On May 21, 2003, the OCC published in the Federal Register a notice
of proposed rulemaking (NPRM) requesting comment on a proposed
regulation implementing the provisions of the Sarbanes-Oxley Act. 68 FR
27753. The OCC did not receive any comments in response to the proposed
rule. The OCC, therefore, is adopting the final rule as proposed with
only technical changes.
Part 11 of the OCC's regulations, entitled ``Securities Exchange
Act Disclosure Rules,'' currently implements the requirements of
section 12(i) by applying to registered national banks, by means of
cross-reference, the SEC's regulations implementing the reporting and
disclosure provisions of sections 12, 13, 14(a), 14(c), 14(d), 14(f),
and 16 of the Exchange Act. Part 11 requires national banks to file
with the OCC any reports or forms required by the SEC's regulations.
We are amending part 11 to reflect the new provisions of the
Sarbanes-Oxley Act that the OCC is required to administer and enforce
with respect to registered national banks. Accordingly, the final rule
revises Sec. 11.2 to cross-reference new subsection 10A(m) of the
Exchange Act and sections 302, 303, 304, 306, 401(b), 404, 406, and 407
of the Sarbanes-Oxley Act. The effect of the final rule is to require
registered national banks to comply with the rules issued by the SEC
pursuant to those statutory provisions.
Part 16 of the OCC's regulations, entitled ``Securities Offering
Disclosure Rules,'' sets forth rules governing the offer and sale of
securities by national bank issuers that are not subject to the
registration and reporting requirements of the Securities Act of
1933.\14\ Section 16.20 of the regulation mirrors the requirements of
section 15(d) of the Exchange Act.\15\ It requires each national bank
that files a registration statement that has been declared effective by
the OCC pursuant to part 16 to file the current and periodic reports
required by section 13 of the Exchange Act \16\ in accordance with the
SEC's
[[Page 68491]]
regulation 15D, as if the securities covered by the registration
statement were securities registered pursuant to section 12 of the
Exchange Act.
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\14\ As of December 31, 2002, there were approximately 20
national banks subject to the requirements of Sec. 16.20.
\15\ 15 U.S.C. 78o(d).
\16\ 15 U.S.C. 78m.
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The final rule revises Sec. 16.20 to continue to reference section
13 of the Exchange Act \17\ and to add a cross-reference to the
requirements of the revised Sec. 11.2(a)(1)(ii). The effect of the
final rule is to require banks filing registration statements pursuant
to part 16 to continue to comply with section 13 of the Exchange Act
and those sections of the Sarbanes-Oxley Act that are directly
applicable to section 15(d) filers and that are administered and
enforced by the OCC with respect to registered national banks. The
final rule is thus consistent with the objectives of part 16, which we
adopted in order to promote generally comparable treatment between
national bank issuers of securities and other issuers that are directly
subject to section 15(d).\18\
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\17\ The proposal also referenced section 10A(m) of the Exchange
Act. That reference is removed from the final rule because the SEC
has not applied the requirements of section 10A(m) to section 15(d)
filers in its final rules. See 68 FR at 18790.
\18\ See 59 FR 54789, 54790 (Nov. 2, 1994) (preamble to most
recent substantive revisions to part 16).
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Sections 11.2 and 16.20 currently cross-reference both the
statutory provisions that the OCC has the authority to administer and
enforce and the SEC's regulations implementing those provisions. The
final rule removes cross-references to the specific sections of the
SEC's regulations in favor of a more general reference to the rules,
regulations, and forms adopted by the SEC pursuant to the listed
statutory provisions. The existing statutory cross-references in parts
11 and 16 are adequate, in our judgment, to alert registered national
banks and national banks required by part 16 to make filings pursuant
to section 15(d) of the Exchange Act of the requirements that apply to
them and to prompt them to consult the appropriate SEC regulations.
National banks may also monitor the Federal Register, the SEC's Web
site,\19\ and other appropriate publications to ensure that they are
aware of developments that affect them. If the rules or forms issued by
the SEC under these sections require issuers to file documents with the
SEC, national banks must make such filings with the OCC in accordance
with the provisions of part 11 or part 16, as appropriate.
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\19\ See http://www.sec.gov.
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CDRI Act Delayed Effective Date
This final rule takes effect 30 days after the date of its
publication in the Federal Register, consistent with the delayed
effective date requirement of the Administrative Procedure Act. See 5
U.S.C. 553(d). Section 302 of the Riegle Community Development and
Regulatory Improvement Act of 1994 (CDRI Act), 12 U.S.C. 4802(b),
provides that regulations that impose additional reporting, disclosure,
or other requirements on insured depository institutions may not take
effect before the first day of the quarter following publication unless
the agency finds that there is good cause to make the rule effective at
an earlier date.\20\ The requirements of the Sarbanes-Oxley Act that
are applied to national banks by the final rule are already in effect
for those entities that are directly subject to the Act. Comparable
regulation for national banks and similarly situated non-bank entities
is best achieved by minimizing additional delay in applying those
requirements to national banks. Accordingly, the OCC has determined
that there is good cause to dispense with the requirements of the CDRI
Act.
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\20\ Pub. L. 103-325, 12 U.S.C. 4802.
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Regulatory Analysis
Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise
required under section 604 of the RFA is not required if the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities and publishes its certification
and a short, explanatory statement in the Federal Register along with
its rule. As of December 31, 2002, there were approximately 25 national
banks that had a class of securities registered under sections 12(b) or
12(g) of the Exchange Act and therefore subject to the amendments to
part 11. As of the same date, only 15 of these institutions have assets
of less than $100 million and are considered small entities for
purposes of the RFA. See 5 U.S.C. 601; 13 CFR 121.201. As of December
31, 2002, there were approximately 20 national banks subject to part 16
reporting requirements.
Based on the relatively small number of national banks affected by
the final rule and the fact that the requirements will not materially
change the operating environment for those banks, the OCC hereby
certifies that this rulemaking will not have a significant economic
impact on a substantial number of small entities. Accordingly, a
regulatory flexibility analysis is not needed.
Paperwork Reduction Act of 1995
In accordance with the requirements of the Paperwork Reduction Act
of 1995, the OCC may not conduct or sponsor, and a respondent is not
required to respond to, an information collection unless it displays a
currently valid Office of Management and Budget (OMB) control number.
The information collection requirements contained in the notice of
proposed rulemaking (68 FR 27753, May 21, 2003) were submitted to OMB
for review and approved by OMB under OMB Control Numbers 1557-0106
((MA)-Securities Exchange Act Disclosure Rules `` 12 CFR 11) and 1557-
0120 ((MA)-Securities Offering Disclosure Rules `` 12 CFR 16).
The OCC solicited comments on the information collection
requirements contained notice of proposed rulemaking. The OCC received
no comments.
The collections contained in the final rule are unchanged from the
proposed rule.
The OCC is amending 12 CFR part 11 to reflect amendments to section
12(i) of the Securities Exchange Act of 1934 (Exchange Act) made by the
Sarbanes-Oxley Act of 2002. These amendments to section 12(i) give the
OCC the authority to administer and enforce a number of the Sarbanes-
Oxley Act's new reporting, disclosure, and corporate governance
requirements with respect to national banks that have a class of
securities registered under the Exchange Act.
The OCC is also making conforming amendments to 12 CFR part 16,
which prescribes securities offering disclosure rules for national
banks that issue securities that are not subject to the registration
requirements of the Securities Act of 1933.
12 CFR part 11 references the applicable SEC regulations. The OCC
does not maintain its own forms for collecting information and instead
requires reporting banks to file SEC forms. Part 11 ensures that
publicly owned national banks provide adequate information about their
operation to current and potential shareholders, depositors, and to the
public. The OCC reviews the information to ensure that it complies with
Federal law and makes public all information required to be filed under
these rules. Investors, depositors, and the public use the information
to make informed investment decisions.
Title: (MA)-Securities Exchange Act Disclosure Rules (12 CFR 11).
OMB Number: 1557-0106.
[[Page 68492]]
Form Numbers: SEC Forms 3, 4, 5, 8-K, 10, 10-K, 10-Q, Schedules
13D, 13G, 14A, 14B, and 14C.
Estimated number of respondents: 65.
Estimated number of responses: 331.
Average hours per response: Varies.
Estimated total burden hours: 3,055 hours.
The likely respondents: National banks, individuals.
The information collection requirements in 12 CFR part 16 enable
the OCC to perform its responsibilities relating to offerings of
securities by national banks by providing the investing public with
facts about the condition of a bank, the reasons for raising new
capital, and the terms of securities offerings. Part 16 generally
requires banks to conform to the Securities and Exchange Commission
rules.
Title: (MA)-Securities Offering Disclosure Rules (12 CFR 16).
OMB Number: 1557-0120.
Description: Sections 16.3 and 16.5 require a national bank to file
its registration statement with the OCC. Section 16.4 requires a
national bank to submit certain communications not deemed an offer to
the OCC. Section 16.5 provides an exemption for items that satisfy the
requirements of SEC Rule 144, which, in turn, requires certain filings.
Section 16.6 requires a national bank to file documents with the OCC
and to make certain disclosures to purchasers in sales of
nonconvertible debt. Section 16.7 requires a national bank to file a
notice with the OCC. Section 16.8 requires a national bank to file
offering documents with the OCC. Section 16.15 requires a national bank
to file a registration statement and sets forth content requirements
for the registration statement. Section 16.17 requires a national bank
to file four copies of each document filed under part 16, and requires
filers of amendments or revisions to underline or otherwise indicate
clearly any changed information. Section 16.18 requires a national bank
to file an amended prospectus when the information in the current
prospectus becomes stale, or when a change in circumstances makes the
current prospectus incorrect. Section 16.19 requires a national bank to
submit a request to the OCC if it wishes to withdraw a registration
statement, amendment, or exhibit. Section 16.20 requires a national
bank to file current and periodic reports as required by sections 12
and 13 of the Exchange Act and SEC Regulation 15D. Section 16.30
requires a national bank to include certain elements and follow certain
procedures in any request to the OCC for a no-objection letter.
Estimated number of respondents: 73.
Estimated number of responses: 73.
Average hours per response: Varies.
Estimated total burden hours: 2,333 hours.
Likely respondents: National banks.
Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that an agency prepare a budgetary impact statement before promulgating
a rule that includes a Federal mandate that may result in expenditure
by State, local, and tribal governments, in the aggregate, or by the
private sector, or $100 million or more in any one year. If a budgetary
impact statement is required, section 205 of the Unfunded Mandates
Reform Act also requires an agency to identify and consider a
reasonable number of regulatory alternatives before promulgating a
rule. The OCC has determined that this final rule will not result in
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, or $100 million or more in any one year.
Accordingly, we have not prepared a budgetary impact statement.
Executive Order 12866
The Comptroller of the Currency has determined that this final rule
does not constitute a ``significant regulatory action'' for the
purposes of Executive Order 12866.
List of Subjects
12 CFR Part 11
Confidential business information, National banks, Reporting and
recordkeeping requirements, Securities.
12 CFR Part 16
National banks, Reporting and recordkeeping requirements,
Securities.
Authority and Issuance
0
For the reasons set forth in the preamble, the OCC amends parts 11 and
16 of chapter I of title 12 of the Code of Federal Regulations as
follows:
PART 11--SECURITIES EXCHANGE ACT DISCLOSURE RULES
0
1. The authority citation for part 11 is revised to read as follows:
Authority: 12 U.S.C. 93a; 15 U.S.C. 78l, 78m, 78n, 78p, 78w,
7241, 7242, 7243, 7244, 7261, 7262, 7264, and 7265.
0
2. Section 11.2 is revised to read as follows:
Sec. 11.2 Reporting requirements for registered national banks.
(a) Filing, disclosure and other requirements--(1) General. Except
as otherwise provided in this section, a national bank whose securities
are subject to registration pursuant to section 12(b) or section 12(g)
of the 1934 Act (15 U.S.C. 78l(b) and (g)) shall comply with the rules,
regulations, and forms adopted by the Securities and Exchange
Commission (Commission) pursuant to:
(i) Sections 10A(m), 12, 13, 14(a), 14(c), 14(d), 14(f), and 16 of
the 1934 Act (15 U.S.C. 78f(m), 78l, 78m, 78n(a), (c), (d) and (f), and
78p); and
(ii) Sections 302, 303, 304, 306, 401(b), 404, 406, and 407 of the
Sarbanes-Oxley Act of 2002 (codified at 15 U.S.C. 7241, 7242, 7243,
7244, 7261, 7262, 7264, and 7265).
(2) [Reserved.]
(b) References to the Commission. Any references to the
``Securities and Exchange Commission'' or the ``Commission'' in the
rules, regulations and forms described in paragraph (a)(1) of this
section shall with respect to securities issued by registered national
banks be deemed to refer to the OCC unless the context otherwise
requires.
PART 16--SECURITIES OFFERING DISCLOSURE RULES
0
1. The authority citation for part 16 continues to read as follows:
Authority: 12 U.S.C. 1 et seq. and 93a.
0
2. Section 16.20 is revised to read as follows:
Sec. 16.20 Compliance with requirements of the securities laws.
(a) Each bank that files a registration statement that has been
declared effective pursuant to this part shall comply with the rules,
regulations, and forms adopted by the Commission pursuant to section 13
of the Exchange Act and those provisions of the Sarbanes-Oxley Act of
2002 that are listed in 12 CFR 11.2(a)(1)(ii) of this chapter as if the
securities covered by the registration statement were securities
registered pursuant to section 12 of the Exchange Act (15 U.S.C. 78l).
(b) Suspension of the duty to file current and periodic reports
under this section will be in accordance with section 15(d) of the
Exchange Act (15 U.S.C. 78o(d)).
(c) Paragraph (a) of this section does not apply if the bank is a
subsidiary of a one-bank holding company, the financial statements of
the bank and the parent bank holding company are substantially the
same, and the bank's
[[Page 68493]]
parent bank holding company files current and periodic reports pursuant
to section 13 of the Exchange Act (15 U.S.C. 78m).
(d) Paragraph (a) of this section does not apply if the bank files
the registration statement in connection with a merger, consolidation,
or acquisition of assets subject to 12 CFR 5.33(e)(8).
Dated: November 25, 2003.
John D. Hawke, Jr.,
Comptroller of the Currency.
[FR Doc. 03-30442 Filed 12-8-03; 8:45 am]
BILLING CODE 4810-33-P