Quick Navigation: Resources by Topic Business
& Economy Education
Environment
Food
& Drugs Grants
& Awards Health
& Safety Military
& Security Science
& Technology Social
Programs Transportation

Site
Search:
advanced

•

Browse

•

Simple
Search

•

Advanced Search

*
Boolean

* Proximity

•

Search
History

•

Search
Tips

•

Corrections

•

Latest
Updates

•

User
Info

•

FAQs

•

Agency
List

•

e-CFR
Main Page

•

Code of Federal
Regulations

•

Federal
Register

•

List of
CFR
Sections Affected

•

Regulations.gov

•

Unified
Agenda

•

All NARA
Publications

Ben's
Guide
to U.S.
Government

Home
Page > Executive
Branch > Code of
Federal Regulations > Electronic Code of Federal
Regulations

e-CFR
Data is current as of April 7, 2008

Title 12:
Banks and Banking
PART 574—ACQUISITION OF CONTROL OF SAVINGS
ASSOCIATIONS

Browse
Previous | Browse
Next

§ 574.6   Procedural requirements.

(a) Form of application or notice. An application, notice, or
informational filing required by §574.3 of this part shall be filed on the
Application/Information Filing H–(e) ____ form. (As specified in the
form's instructions, the blank line following the H–(e) should be filled
in by applicants with the appropriate “1”, “1–S”, “2”, “3”, or “4”
depending on the type of application.) The specific application
requirements for each type of filing are indicated on the form. An
acquiror may request confidential treatment of portions of an application
or notice only by complying with the requirements of paragraph (f) of this
section. In the case of an application involving a merger (including a
merger with an interim association) the Application/Information Filing
H–(e) ____ form shall be used in lieu of an application that otherwise
would be required for such merger under §§546.2, 552.13, and 563.22 of
this chapter.

(1) H–(e)1. This application type shall be filed under §574.3(a)
of this part by a company, other than a savings and loan holding company,
for approval to acquire direct or indirect control of one savings
association.

(2) H–(e)1–S. This application type shall be filed under
§574.3(a) of this part by a savings association for approval to reorganize
into a holding company structure, provided that the proposed transaction
satisfies each of the conditions for automatic approval specified in
§574.7 (a)(2) and (a)(3) of this part.

(3) H–(e)2. (i) This application type shall be filed under
§574.3(a) of this part:

(A) By a savings and loan holding company for approval to acquire and
hold separately one or more savings associations;

(B) By any other company for approval to acquire and hold separately
more than one savings association;

(C) By a savings and loan holding company for approval of an
acquisition of shares issued by a savings association in a qualified stock
issuance pursuant to §574.8 of this part; or

(D) By any director, officer, or any individual who owns, controls, or
holds with power to vote (or holds proxies representing) more than 25
percent of the voting shares of a savings and loan holding company for
approval of an acquisition of one or more savings associations.

(ii) The OTS may determine as a general matter or on a case-by-case
basis not to require application information not relevant to transactions
described in paragraphs (a)(3)(i) (C) and (D) of this section.

(4) H-(e)3. This application shall be used for all applications
filed under §574.3(a) of this part:

(i) By a savings and loan holding company for approval of acquisitions
by a merger, consolidation, or purchase of assets of a savings association
or uninsured institution or a savings and loan holding company; or

(ii) By any company for approval of acquisitions by a merger,
consolidation, or purchase of assets of two or more savings
associations.

(5) H-(e)4. This information filing shall be used to claim that
a reorganization is exempt from prior written approval of the OTS under
§574.3(c)(1)(ii) of this part.

(6) Notice Form 1393, parts A and B. This form shall be used for
all notices filed under §574.3(b) of this part regarding the acquisition
of control of a savings association by any person or persons not
constituting a company except as provided in paragraph (a)(3) of this
section.

(b) Filing requirements —(1) Applications, notices, and
rebuttals. (i) Complete copies including exhibits and all other
pertinent documents of applications, notices, and rebuttal submissions
shall be filed with the Region in which the savings association or
associations involved in the transaction have their home office or
offices. Unsigned copies shall be conformed. Each copy shall include a
summary of the proposed transaction.

(ii) Any person or company may amend an application, notice or rebuttal
submission, or file additional information, upon request of the OTS or, in
the case of the party filing an application, notice, or rebuttal, upon
such party's own initiative.

(2) H–(e)4 Information filing. Any information filing required
to be made to claim that a reorganization is exempt from prior written
approval of the OTS under §574.3(c)(1)(ii) of this part shall be clearly
labeled “H–(e)4 Information Filing”.

(c) Sufficiency and waiver. (1) Except as provided in
§574.6(c)(5), an application or notice filed pursuant to §574.3 (a) or (b)
shall not be deemed sufficient unless it includes all of the information
required by the form prescribed by the Office 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 Office may require by written request to the
applicant. Unless an application or notice specifically indicates
otherwise, the application or notice shall be considered to pertain to
acquisition of 100 percent of a savings association's voting stock. Where
an application or notice pertains to a lesser amount of stock, the Office
may condition its approval or non-disapproval to apply only to such
amount, in which case additional acquisitions may be made only by
amendment to the acquiror's application or notice and the Office's
approval or non-disapproval thereof. Failure by an applicant to respond
completely to a written request by the Office for additional information
within 30 calendar days of the date of such request may be deemed to
constitute withdrawal of the application, notice, or rebuttal filing or
may be treated as grounds for denial of an application, issuance of a
notice of disapproval of a notice, or rejection of a rebuttal.

(2) The period for the Office's review of any proposed acquisition will
commence upon receipt by the Office of a notice or application deemed
sufficient under paragraph (c)(1) of this section. The Office shall notify
an acquiror in writing within 30 calendar days after proper filing of an
application or notice as to whether an application or notice—

(i) Is sufficient;

(ii) Is insufficient, and what additional information is requested in
order to render the application or notice sufficient; or

(iii) Is materially deficient and will not be processed. The Office
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 Office as to whether the application or notice is
thereby deemed to be sufficient. If the Office fails to so notify an
acquiror within such time, the application or 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
Office 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
Office'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 an application or notice was
deemed to be sufficient or which pertains to developments subsequent to
the time an application or notice was deemed to be sufficient, the Office,
at its option, may request such additional information as it considers
necessary, or may deem the application or 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 Office's review of an application or
notice deemed to be sufficient also may be extended by the Office for up
to an additional 30 days.

(ii) The period for the Office'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 Office determines that any acquiring party has not furnished
all the information required under this part;

(B) In the Office's judgment, any material information submitted is
substantially inaccurate;

(C) The Office 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 Office 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.

(4) With respect to an H–(e)4 information filing, the Chief Counsel or
his or her designee shall have 30 days after receipt of a filing deemed
sufficient to disapprove the assertion that the company qualifies for the
exemption provided in §574.3(c)(1)(ii). After the expiration of such
30-day period without response from the Chief Counsel, the filing shall be
deemed to be approved.

(5) The Office may waive any requirements of this paragraph (c)
determined to be unnecessary by the Office, upon its own initiative, upon
the written request of an acquiring person, or in a supervisory case.

(d) Public notice. (1) The acquiror must publish a public notice
of an application under §574.3(a) or §574.8 of this chapter or a notice
under §574.3(b) of this chapter, in accordance with the procedures in
subpart B of part 516 of this chapter. Promptly after publication, the
acquiror must transmit copies of the public notice and the publisher's
affidavit to OTS.

(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 application.

(3) OTS will notify the appropriate state supervisor and will notify
persons whose requests for announcements, as described in 12 CFR part
563e, Appendix B, have been received in time for the notification. OTS may
also notify any other persons who may have an interest in the application
or notice.

(e) Submission of comments. Commenters may submit comments on
the application or notice in accordance with the procedures in subpart C
of part 516 of this chapter.

(f) Disclosure. (1) Any application, 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 an application, 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 parts 503 and 505 of this
chapter. Applicants and other submitters should provide confidential and
non-confidential versions of their filings, as described in §574.6(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 Office pursuant to this part may
request that the Office 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 Office (i) it is supplied
segregated from information for which confidential treatment is not being
requested, (ii) it is appropriately marked as confidential, and (iii) 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 Office receives a request for the information under the
Freedom of Information Act, OTS 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
Office, 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
of the commercial or financial information in question and of similar
information, prior to, and after, its submission to the Office;

(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 Office, and, if so, whether and how disclosure of the
information would tend to impede the availability of similar information
to the Office;

(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 an application, 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 Under part 574/Priority
Treatment Requested.”

(g) Supervisory cases. The provisions of paragraphs (d), (e) and
(f) of this section may be waived by the Office in connection with a
transaction approved by the Office for supervisory reasons.

(h) Notification of State supervisor. Upon receiving a notice
relating to an acquisition of control of a state-chartered savings
association, the Office shall forward a copy of the notice to the
appropriate state savings and loan association supervisory agency, and
shall allow 30 days within which the views and recommendations of such
state supervisory agency may be submitted. The Office shall give due
consideration to the views and recommendations of such state agency in
determining whether to disapprove any proposed acquisition.
Notwithstanding the provisions of this paragraph (h), if the Office
determines that it must act immediately upon any notice of a proposed
acquisition in order to prevent the default of the association involved in
the proposed acquisition, the Office may dispense with the requirement of
this paragraph (h) or, if a copy of the notice is forwarded to the state
supervisory agency, the Office may request that the views and
recommendations of such state supervisory agency be submitted immediately
in any form or by any means acceptable to the Office.

(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
§563.22 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. Applications, notices and rebuttals involving
acquisitions of the stock of a recently converted savings association
under §563b.3(i)(3) of this chapter shall also address the criteria for
approval set forth at §563b.3(i)(5) of this chapter.

[54 FR 49690, Nov. 30, 1989, as amended at 55 FR 13517, Apr. 11, 1990;
57 FR 14349, Apr. 20, 1992; 59 FR 28470, June 2, 1994; 60 FR 66720, Dec.
26, 1995; 61 FR 65179, Dec. 11, 1996; 66 FR 13009, Mar. 2, 2001; 69 FR
68250, Nov. 24, 2004]

Browse
Previous | Browse
Next

For questions or comments regarding e-CFR
editorial content, features, or design, email [email-masked].

For questions
concerning e-CFR programming and delivery issues, email [email-masked].

Section
508 / Accessibility