Editorial Note on Part 225
Editorial Note: Nomenclature changes to part 225 appear at 69 FR 77618, Dec. 28, 2004.

§ 225.181 Conformance Period for Banking Entities Engaged in Prohibited Proprietary Trading or Private Fund Activities. ( a ) *Conformance Period* — ( 1 ) *In general.* Except as provided in paragraph (b)(2) or (3) of this section, a banking entity shall bring its activities and investments into compliance with the requirements of section 13 of the Bank Holding Company Act (12 U.S.C. 1851) and this subpart no later than 2 years after the earlier of: ( i ) July 21, 2012; or
( ii ) Twelve months after the date on which final rules adopted under section 13(b)(2) of the Bank Holding Company Act (12 U.S.C. 1851(b)(2)) are published in the Federal Register.
( 2 ) *New banking entities.* A company that was not a banking entity, or a subsidiary or affiliate of a banking entity, as of July 21, 2010, and becomes a banking entity, or a subsidiary or affiliate of a banking entity, after that date shall bring its activities and investments into compliance with the requirements of section 13 of the Bank Holding Company Act (12 U.S.C. 1851) and this subpart before the later of— ( i ) The conformance date determined in accordance with paragraph (a)(1) of this section; or
( ii ) Two years after the date on which the company becomes a banking entity or a subsidiary or affiliate of a banking entity.
( 3 ) *Extended conformance period.* The Board may extend the two-year period under paragraph (a)(1) or (2) of this section by not more than three separate one-year periods, if, in the judgment of the Board, each such one-year extension is consistent with the purposes of section 13 of the Bank Holding Company Act (12 U.S.C. 1851) and this subpart and would not be detrimental to the public interest.
( b ) *Illiquid funds* — ( 1 ) *Extended transition period.* The Board may further extend the period provided by paragraph (a) of this section during which a banking entity may acquire or retain an equity, partnership, or other ownership interest in, or otherwise provide additional capital to, a private equity fund or hedge fund if— ( i ) The fund is an illiquid fund; and
( ii ) The acquisition or retention of such interest, or provision of additional capital, is necessary to fulfill a contractual obligation of the banking entity that was in effect on May 1, 2010.
( 2 ) *Duration limited.* The Board may grant a banking entity only one extension under paragraph (b)(1) of this section and such extension— ( i ) May not exceed 5 years beyond any conformance period granted under paragraph (a)(3) of this section; and
( ii ) Shall terminate automatically on the date during any such extension on which the banking entity is no longer under a contractual obligation described in paragraph (b)(1)(ii).
( 3 ) *Contractual obligation.* For purposes of this paragraph (b)— ( i ) A banking entity has a contractual obligation to take or retain an equity, partnership, or other ownership interest in an illiquid fund if the banking entity is prohibited from redeeming all of its equity, partnership, or other ownership interests in the fund, and from selling or otherwise transferring all such ownership interests to a person that is not an affiliate of the banking entity— ( A ) Under the terms of the banking entity's equity, partnership, or other ownership interest in the fund or the banking entity's other contractual arrangements with the fund or unaffiliated investors in the fund; or
( B ) If the banking entity is the sponsor of the fund, under the terms of a written representation made by the banking entity in the fund's offering materials distributed to potential investors;
( ii ) A banking entity has a contractual obligation to provide additional capital to an illiquid fund if the banking entity is required to provide additional capital to such fund— ( A ) Under the terms of its equity, partnership or other ownership interest in the fund or the banking entity's other contractual arrangements with the fund or unaffiliated investors in the fund; or
( B ) If the banking entity is the sponsor of the fund, under the terms of a written representation made by the banking entity in the fund's offering materials distributed to potential investors; and
( iii ) A banking entity shall be considered to have a contractual obligation for purposes of paragraph (b)(3)(i) or (ii) of this section only if— ( A ) The obligation may not be terminated by the banking entity or any of its subsidiaries or affiliates under the terms of its agreement with the fund; and
( B ) In the case of an obligation that may be terminated with the consent of other persons, the banking entity and its subsidiaries and affiliates have used their reasonable best efforts to obtain such consent and such consent has been denied.
( c ) *Approval required to hold interests in excess of time limit.* The conformance period in paragraph (a) of this section may be extended in accordance with paragraph (a)(3) or (b) of this section only with the approval of the Board. A banking entity that seeks the Board's approval for an extension of the conformance period under paragraph (a)(3) or for an extended transition period under paragraph (b)(1) must— ( 1 ) Submit a request in writing to the Board at least 180 days prior to the expiration of the applicable time period;
( 2 ) Provide the reasons why the banking entity believes the extension should be granted, including information that addresses the factors in paragraph (d)(1) of this section; and
( 3 ) Provide a detailed explanation of the banking entity's plan for divesting or conforming the activity or investment(s).
( d ) *Factors governing Board determinations* — ( 1 ) *Extension requests generally.* In reviewing any application by a specific company for an extension under paragraph (a)(3) or (b)(1) of this section, the Board may consider all the facts and circumstances related to the activity, investment, or fund, including, to the extent relevant— ( i ) Whether the activity or investment— ( A ) Involves or results in material conflicts of interest between the banking entity and its clients, customers or counterparties;
( B ) Would result, directly or indirectly, in a material exposure by the banking entity to high-risk assets or high-risk trading strategies;
( C ) Would pose a threat to the safety and soundness of the banking entity; or
( D ) Would pose a threat to the financial stability of the United States;
( ii ) Market conditions;
( iii ) The nature of the activity or investment;
( iv ) The date that the banking entity's contractual obligation to make or retain an investment in the fund was incurred and when it expires;
( v ) The contractual terms governing the banking entity's interest in the fund;
( vi ) The degree of control held by the banking entity over investment decisions of the fund;
( vii ) The types of assets held by the fund, including whether any assets that were illiquid when first acquired by the fund have become liquid assets, such as, for example, because any statutory, regulatory, or contractual restrictions on the offer, sale, or transfer of such assets have expired;
( viii ) The date on which the fund is expected to wind up its activities and liquidate, or its investments may be redeemed or sold;
( ix ) The total exposure of the banking entity to the activity or investment and the risks that disposing of, or maintaining, the investment or activity may pose to the banking entity or the financial stability of the United States;
( x ) The cost to the banking entity of divesting or disposing of the activity or investment within the applicable period;
( xi ) Whether the divestiture or conformance of the activity or investment would involve or result in a material conflict of interest between the banking entity and unaffiliated clients, customers or counterparties to which it owes a duty;
( xii ) The banking entity's prior efforts to divest or conform the activity or investment(s), including, with respect to an illiquid fund, the extent to which the banking entity has made efforts to terminate or obtain a waiver of its contractual obligation to take or retain an equity, partnership, or other ownership interest in, or provide additional capital to, the illiquid fund; and
( xiii ) Any other factor that the Board believes appropriate.
( 2 ) *Timing of Board review.* The Board will seek to act on any request for an extension under paragraph (a)(3) or (b)(1) of this section no later than 90 calendar days after the receipt of a complete record with respect to such request.
( 3 ) *Consultation.* In the case of a banking entity that is primarily supervised by another Federal banking agency, the Securities and Exchange Commission, or the Commodity Futures Trading Commission, the Board will consult with such agency prior to the approval of a request by the banking entity for an extension under paragraph (a)(3) or (b)(1) of this section.
( e ) *Authority to impose restrictions on activities or investments during any extension period* — ( 1 ) *In general.* The Board may impose such conditions on any extension approved under paragraph (a)(3) or (b)(1) of this section as the Board determines are necessary or appropriate to protect the safety and soundness of the banking entity or the financial stability of the United States, address material conflicts of interest or other unsound banking practices, or otherwise further the purposes of section 13 of the Bank Holding Company Act (12 U.S.C. 1851) and this subpart.
( 2 ) *Consultation.* In the case of a banking entity that is primarily supervised by another Federal banking agency, the Securities and Exchange Commission, or the Commodity Futures Trading Commission, the Board will consult with such agency prior to imposing conditions on the approval of a request by the banking entity for an extension under paragraph (a)(3) or (b)(1) of this section.