(a)Form of notice. A notice required by § 174.3 of this part shall be filed on the form indicated below. An acquiror may request confidential treatment of portions of a notice only by complying with the requirements of paragraph (f) of this section.
(6)Notice Form 1393, parts A and B. This form shall be used for all notices filed under § 174.3(b) of this part regarding the acquisition of control of a Federal savings association by any person or persons not constituting a company.
(1)Notices, and rebuttals.
(i) Complete copies including exhibits and all other pertinent documents of notices and rebuttal submissions shall be filed with the appropriate OCC licensing office. Unsigned copies shall be conformed. Each copy shall include a summary of the proposed transaction.
(ii) Any person or company may amend a notice or rebuttal submission, or file additional information, upon request of the OCC or, in the case of the party filing a notice or rebuttal, upon such party's own initiative.
(c)Sufficiency and waiver.
(1) Except as provided in§ 174.6(c)(5), a notice filed pursuant to § 174.3(b) shall not be deemed sufficient unless it includes all of the information required by the form prescribed by the OCC and this part, including a complete description of the acquiror's proposed plan for acquisition of control whether pursuant to one or more transactions, and any additional relevant information as the OCC may require by written request to the acquiror. Unless a notice specifically indicates otherwise, the notice shall be considered to pertain to acquisition of 100 percent of a Federal savings association's voting stock. Where a notice pertains to a lesser amount of stock, the OCC may condition its non-disapproval to apply only to such amount, in which case additional acquisitions may be made only by amendment to the acquiror's notice and the OCC's non-disapproval thereof. Failure by an acquiror to respond completely to a written request by the OCC for additional information within 30 calendar days of the date of such request may be deemed to constitute withdrawal of the notice or rebuttal filing or may be treated as grounds for an issuance of a notice of disapproval of a notice or rejection of a rebuttal.
(2) The period for the OCC's review of any proposed acquisition will commence upon receipt by the OCC of a notice deemed sufficient under paragraph (c)(1) of this section. The OCC shall notify an acquiror in writing within 30 calendar days after proper filing of a notice as to whether the notice—
(i) Is sufficient;
(ii) Is insufficient, and what additional information is requested in order to render the notice sufficient; or
(iii) Is materially deficient and will not be processed. The OCC shall also notify an acquiror in writing within 15 calendar days after proper filing of any additional information furnished in response to a specific request by the OCC as to whether the notice is thereby deemed to be sufficient. If the OCC fails to so notify an acquiror within such time, the notice shall be deemed to be sufficient as of the expiration of the applicable period.
(3) After additional information has been requested and supplied, the OCC may request additional information only with respect to matters derived from or prompted by information already furnished, or information of a material nature that was not reasonably available from the acquiror, was concealed, or pertains to developments subsequent to the time of the OCC's initial request for additional information. With regard to information of a material nature that was not reasonably available from the acquiror or was concealed at the time a notice was deemed to be sufficient or which pertains to developments subsequent to the time a notice was deemed to be sufficient, the OCC, at its option, may request such additional information as it considers necessary, or may deem the notice not to be sufficient until such additional information is furnished and cause the review period to commence again in its entirety upon receipt of such additional information.
(i) The 60-day period for the OCC's review of a notice deemed to be sufficient also may be extended by the OCC for up to an additional 30 days.
(ii) The period for the OCC's review of a notice may be further extended not to exceed two additional times for not more than 45 days each time if—
(A) The OCC determines that any acquiring party has not furnished all the information required under this part;
(B) In the OCC's judgment, any material information submitted is substantially inaccurate;
(C) The OCC has been unable to complete an investigation of each acquiror because of any delay caused by, or the inadequate cooperation of, such acquiror; or
(D) The OCC determines that additional time is needed to investigate and determine that no acquiring party has a record of failing to comply with the requirements of subchapter II of chapter 53 of title 31 of the United States Code.
(5) The OCC may waive any requirements of this paragraph (c) determined to be unnecessary by the OCC, upon its own initiative, upon the written request of an acquiring person, or in a supervisory case.
(1) The acquiror must publish a public notice of a notice under§ 174.3(b) of this chapter, in accordance with the procedures in subpart B of part 116 of this chapter. Promptly after publication, the acquiror must transmit copies of the public notice and the publisher's affidavit to the OCC.
(2) The acquiror must provide a copy of the public notice to the savings association whose stock is sought to be acquired, and may provide a copy of the public notice to any other person who may have an interest in the notice.
(3) The OCC will notify the persons whose requests for announcements, as described in12 CFR part 195, appendix B, have been received in time for the notification. The OCC may also notify any other persons who may have an interest in the notice.
(e)Submission of comments. Commenters may submit comments on the notice in accordance with the procedures in subpart C of part 116 of this chapter.
(1) Any notice, other filings, public comment, or portion thereof, made pursuant to this part for which confidential treatment is not requested in accordance with this paragraph (f), shall be immediately available to the public and not subject to the procedures set forth herein. Public disclosure shall be made of other portions of a notice, other filing or public comment in accordance with paragraph (f)(2) of this section, the provisions of the Freedom of Information Act (5 U.S.C. 552a) and part 4 of this chapter. Submitters should provide confidential and non-confidential versions of their filings, as described in § 174.6(f)(2) and (3) in order to facilitate this process.
(2) Any person who submits any information or causes or permits any information to be submitted to the OCC pursuant to this part may request that the OCC afford confidential treatment under the Freedom of Information Act to such information for reasons of personal privacy or business confidentiality, which shall include such information that would be deemed to result in the commencement of a tender offer under§ 240.14d-2 of title 17 of the Code of Federal Regulations, or for any other reason permitted by Federal law. Such request for confidentiality must be made and justified in accordance with paragraph (f)(5) of this section at the time of filing, and must, to the extent practicable, identify with specificity the information for which confidential treatment may be available and not merely indicate portions of documents or entire documents in which such information is contained. Failure to specifically identify information for which confidential treatment is requested, failure to specifically justify the bases upon which confidentiality is claimed in accordance with paragraph (f)(5) of this section, or overbroad and indiscriminate claims for confidential treatment, may be bases for denial of the request. In addition, the filing party should take all steps reasonably necessary to ensure, as nearly as practicable, that at the time the information is first received by the OCC it is supplied segregated from information for which confidential treatment is not being requested, it is appropriately marked as confidential, and it is accompanied by a written request for confidential treatment which identifies with specificity the information as to which confidential treatment is requested. Any such request must be substantiated in accordance with paragraph (f)(5) of this section.
(3) All documents which contain information for which a request for confidential treatment is made or the appropriate segregable portions thereof shall be marked by the person submitting the records with a prominent stamp, typed legend, or other suitable form of notice on each page or segregable portion of each page, stating “Confidential Treatment Requested by [name].” If such marking is impracticable under the circumstances, a cover sheet prominently marked “Confidential Treatment Requested by [name]” should be securely attached to each group of records submitted for which confidential treatment is requested. Each of the records transmitted in this manner should be individually marked with an identifying number and code so that they are separately identifiable.
(4) A determination as to the validity of any request for confidential treatment may be made when a request for disclosure of the information under the Freedom of Information Act is received, or at any time prior thereto. If the OCC receives a request for the information under the Freedom of Information Act, the OCC will advise the filing party before it discloses material for which confidential treatment has been requested.
(5) Substantiation of a request for confidential treatment shall consist of a statement setting forth, to the extent appropriate or necessary for the determination of the request for confidential treatment, the following information regarding the request:
(i) The reasons, concisely stated and referring to specific exemptive provisions of the Freedom of Information Act, why the information should be withheld from access under the Freedom of Information Act;
(ii) The applicability of any specific statutory or regulatory provisions which govern or may govern the treatment of the information;
(iii) The existence and applicability of any prior determination by the OCC, other Federal agencies, or a court, concerning confidential treatment of the information;
(iv) The adverse consequences to a business enterprise, financial or otherwise, that would result from disclosure of confidential commercial or financial information, including any adverse effect on the business' competitive position;
(v) The measures taken by the business to protect the confidentiality ofthe commercial or financial information in question and of similar information, prior to, and after, its submission to the OCC;
(vi) The ease or difficulty of a competitor's obtaining or compiling the commercial or financial information;
(vii) Whether commercial or financial information was voluntarily submitted to the OCC, and, if so, whether and how disclosure of the information would tend to impede the availability of similar information to the OCC;
(viii) The extent, if any, to which portions of the substantiation of the request for confidential treatment should be afforded confidential treatment;
(ix) The amount of time after the consummation of the proposed acquisition for which the information should remain confidential and a justification thereof;
(x) Such additional facts and such legal and other authorities as the requesting person may consider appropriate.
(6) Any person requesting access to a notice, other filing, or public comment made pursuant to this part for purposes of commenting on a pending submission may prominently label such request: “Request for Disclosure of Filing(s) Made Underpart 174/Priority Treatment Requested.”
(g)Supervisory cases. The provisions of paragraphs (d), (e) and (f) of this section may be waived by the OCC in connection with a transaction approved by the OCC for supervisory reasons.
(i)Additional procedures for acquisitions involving mergers. Acquisitions of control involving mergers (including mergers with an interim association) shall also be subject to the procedures set forth in § 163.22 of this chapter to the extent applicable, except as provided in paragraph (a) of this section.
(j)Additional procedures for acquisitions of recently converted savings associations. Notices and rebuttals involving acquisitions of the stock of a recently converted savings association under § 192.3(i)(3) of this chapter shall also address the criteria for approval set forth at § 192.3(i)(5) of this chapter.
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