5988 Federal Register / Vol. 62, No. 27 / Monday, February 10, 1997 / Notices

reflected in the books and records of the

institution should not control the

application of D’Oench or the statutory

provisions.

In analyzing the propriety of asserting

the D’Oench or the statutory provisions,

at least the following three general

factors should be considered in

preparation for seeking approval from

Washington:

* To what extent is the purpose of the

statute regulatory, rather than remedial? If

the statute simply imposes regulatory or

mandatory requirements for a transaction,

such as a filing requirement or maximum fee

for services, assertion of D’Oench or the

statutory provisions is unlikely to be

successful.

* To what extent is the application of the

statute premised upon facts that are not

reflected in the books and records of the

institution? If the state statute requires the

existence and/or maintenance of certain

facts, but those facts are not recorded in the

institution’s records, then D’Oench or the

statutory provisions may be applicable.

* To what extent do the facts involve

circumstances where the opposing party

failed to take reasonable steps to document

some necessary requirement or participated

in some scheme or arrangement that would

tend to mislead the banking authorities.

Examples Requiring Washington

Approval:

1. A priority dispute arises involving a

mechanic’s lien against property on which

the FDIC is attempting to foreclose. An

attempt to persuade a court that the

mechanic’s lien is a form of secret agreement

under D’Oench, which, if given priority over

the interests of the FDIC, will tend to

diminish or defeat the value of the asset may

not be appropriate. In this example,

Washington approval must be obtained

before asserting D’Oench or the statutory

provisions.

2. State law requires insurance companies

doing business in the state to deposit funds

with the Commissioner of Insurance. Further,

the law provides that the deposit cannot be

levied upon by creditors or claimants of the

insurance company. An insurance company

purchases a certificate of deposit from an

institution and assigns it to the

Commissioner. At the same time a document

is executed entitled ‘‘Requisition to the

Bank’’ which states that the institution would

not release the CD funds without

authorization of the Commissioner.

Subsequently the insurance company

borrows money from the institution. After the

loan goes into default, the institution does

not roll the CD over, but rather credits the

proceeds to the loan account. The institution

then fails and the Commissioner files a proof

of claim with the FDIC seeking payment on

the CD. The FDIC may not defend the suit by

claiming that the assignment documents did

not meet the requirements of section 1823(e).

In this example, Washington approval must

be obtained before asserting D’Oench or the

statutory provisions.

3. The FDIC attempts to collect on a note

which the failed institution acquired from a

mortgage broker. The note is at a 15%

interest rate and the mortgage broker charged

six and one half points. State law provides

that interest shall be no more than 13% and

that no more than one point may be charged.

The FDIC may not defend the borrower’s

counterclaim of a usurious loan by asserting

D’Oench or the statutory provisions. Here

too, Washington approval must be obtained

before asserting D’Oench or the statutory

provisions.

g. Section 1823(e)’s Contemporaneous

Requirement

This requirement of section 1823(e)

may not be asserted to invalidate a good

faith workout or loan modification

agreement where the sole issue is

whether the contemporaneous

requirement of section 1823(e) is met.

Where there is an agreement which

otherwise satisfies the remaining

requirements of the statute, but was not

executed contemporaneously with the

acquisition of the asset, in most

circumstances the statutory provisions

should not be asserted. This applies

only to workouts or loan modifications

done by the failed institution prior to

receivership. The assertion of the

section 1823(e) contemporaneous

requirement should be considered

principally where the facts demonstrate

that the workout or restructure was

entered into in bad faith and in

anticipation of institution failure.

Washington approval must be

obtained before asserting D’Oench or the

statutory provisions in these cases.

6. Procedures To Obtain Washington

Approval

DRR Operations: When facts

involving the possible assertion of

D’Oench or the statutory provisions

arise, Legal should be consulted. When

the assertion of D’Oench or statutory

provisions requires Washington

approval, as outlined above, prior

approval must be received from the

Deputy Director—Operations or his

designee in Washington in all such

cases. Such approval must be obtained

by preparation of a memorandum

identifying the facts of the case

forwarded through Legal Division

procedures to the Deputy Director—

Operations or his designee.

DRR Asset Management: When facts

involving the possible assertion of

D’Oench or the statutory provisions

arise, Legal should be consulted. When

the assertion of D’Oench or the statutory

provisions requires Washington

approval, as outlined above, Legal

Division procedures should be followed

for referral to Washington. Washington

Legal will consult with Washington

DRR where appropriate.

Legal: Each attorney must carefully

review the facts of each instance where

the assertion of D’Oench or the statutory

provisions is being considered under

revised Litigation Procedure 3 (LP 3).

All cases requiring consultation or

approval within these Guidelines and/or

PS must be referred to Washington

pursuant to LP3 procedures.

These Guidelines are intended only to

improve the FDIC’s review and

management of utilization of D’Oench

or the statutory provisions. The

Guidelines do not create any right or

benefit, substantive or procedural, that

is enforceable at law, in equity, or

otherwise by any party against the FDIC,

its officers, employees, or agents, or any

other person. The Guidelines shall not

be construed to create any right to

judicial review, settlement, or any other

right involving compliance with its

terms.

[FR Doc. 97–3190 Filed 2–7–97; 8:45 am]

BILLING CODE 6714–01–P

FEDERAL MARITIME COMMISSION

[Docket No. 97–02]

McKenna Trucking Company, Inc. v.

Maersk Incorporated; Notice of Filing

of Complaint and Assignment

Notice is given that a complaint filed

by McKenna Trucking Company, Inc.

(‘‘Complainant’’) against Maersk

Incorporated (‘‘Respondent’’) was

served February 5, 1997. Complainant

alleges that Respondent has violated

sections 10(b)(1), (4), (6), (10), (11), and

(12) of the Shipping Act of 1984, 46

U.S.C. app. sections 1709(1), (4), (6),

(10), (11), and (12), by receiving rebates

of intermodal trucking charges, thereby

charging, demanding, collection and

receiving greater compensation for the

transportation of property than the rates

shown in its service contracts, and

subjecting complainant to an

unreasonable refusal to deal, while

continuing to charge shippers the

higher, listed rate as a portion of the

total through rate.

This proceeding has been assigned to

the Office of Administrative Law Judges.

Hearing in this matter, if any is held,

shall commence within the time

limitations prescribed in 46 CFR 502.61,

and only after consideration has been

given by the parties and the presiding

officer to the use of alternative forms of

dispute resolution. The hearing shall

include oral testimony and crossexamination in the discretion of the

presiding officer only upon proper

showing that there are genuine issues of

material fact that cannot be resolved on
Federal Register / Vol. 62, No. 27 / Monday, February 10, 1997 / Notices 5989

the basis of sworn statements, affidavits,

depositions, or other documents or that

the nature of the matter in issue is such

that an oral hearing and crossexamination are necessary for the

development of an adequate record.

Pursuant to the further terms of 46 CFR

502.61, the initial decision of the

presiding officer in this proceeding shall

be issued by February 5, 1998, and the

final decision of the Commission shall

be issued by June 5, 1998.

Joseph C. Polking,

Secretary.

[FR Doc. 97–3206 Filed 2–7–97; 8:45 am]

BILLING CODE 6730–01–M

FEDERAL RESERVE SYSTEM

Formations of, Acquisitions by, and

Mergers of Bank Holding Companies

The companies listed in this notice

have applied to the Board for approval,

pursuant to the Bank Holding Company

Act of 1956 (12 U.S.C. 1841 et seq.)

(BHC Act), Regulation Y (12 CFR Part

225), and all other applicable statutes

and regulations to become a bank

holding company and/or to acquire the

assets or the ownership of, control of, or

the power to vote shares of a bank or

bank holding company and all of the

banks and nonbanking companies

owned by the bank holding company,

including the companies listed below.

The applications listed below, as well

as other related filings required by the

Board, are available for immediate

inspection at the Federal Reserve Bank

indicated. Once the application has

been accepted for processing, it will also

be available for inspection at the offices

of the Board of Governors. Interested

persons may express their views in

writing on the standards enumerated in

the BHC Act (12 U.S.C. 1842(c)). If the

proposal also involves the acquisition of

a nonbanking company, the review also

includes whether the acquisition of the

nonbanking company complies with the

standards in section 4 of the BHC Act,

including whether the acquisition of the

nonbanking company can ‘‘reasonably

be expected to produce benefits to the

public, such as greater convenience,

increased competition, or gains in

efficiency, that outweigh possible

adverse effects, such as undue

concentration of resources, decreased or

unfair competition, conflicts of

interests, or unsound banking practices’’

(12 U.S.C. 1843). Unless otherwise

noted, nonbanking activities will be

conducted throughout the United States.

Unless otherwise noted, comments

regarding each of these applications

must be received at the Reserve Bank

indicated or the offices of the Board of

Governors not later than March 6, 1997.

A. Federal Reserve Bank of New

York (Christopher J. McCurdy, Senior

Vice President) 33 Liberty Street, New

York, New York 10045-0001:

1. BanPonce Financial Corp., Popular

International Bank, Inc., and BanPonce

Financial Corp, Wilmington, Delaware;

to acquire 100 percent of the voting

shares of Seminole National Bank,

Sanford, Florida.

B. Federal Reserve Bank of Atlanta

(Lois Berthaume, Vice President) 104

Marietta Street, N.W., Atlanta, Georgia

30303-2713:

1. Regions Financial Corporation,

Birmingham, Alabama; to merge with

Gulf South Bancshares, Inc., Gretna,

Louisiana, and thereby indirectly

acquire Gulf South Bank and Trust

Company, Gretna, Louisiana.

2. Whitney Holding Corporation, New

Orleans, Louisiana; to acquire 100

percent of the voting shares of

Merchants National Bank of Mississippi,

Gulfport, Mississippi (in organization).

3. Whitney Holding Corporation; to

merge with Merchants Bancshares, Inc.,

Gulfport, Mississippi, and thereby

indirectly acquire Merchants Bank &

Trust Company, Bay Saint Louis,

Mississippi.

Board of Governors of the Federal Reserve

System, February 4, 1997.

Jennifer J. Johnson,

Deputy Secretary of the Board.

[FR Doc. 97–3165 Filed 2–7–97; 8:45 am]

BILLING CODE 6210–01–F

Notice of Proposals To Engage in

Permissible Nonbanking Activities or

To Acquire Companies That are

Engaged in Permissible Nonbanking

Activities

The companies listed in this notice

have given notice under section 4 of the

Bank Holding Company Act (12 U.S.C.

1843) (BHC Act) and Regulation

Y, (12 CFR Part 225) to engage de novo,

or to acquire or control voting securities

or assets of a company that engages

either directly or through a subsidiary or

other company, in a nonbanking activity

that is listed in § 225.25 of Regulation

Y (12 CFR 225.25) or that the Board has

determined by Order to be closely

related to banking and permissible for

bank holding companies. Unless

otherwise noted, these activities will be

conducted throughout the United States.

Each notice is available for inspection

at the Federal Reserve Bank indicated.

Once the notice has been accepted for

processing, it will also be available for

inspection at the offices of the Board of

Governors. Interested persons may

express their views in writing on the

question whether the proposal complies

with the standards of section 4 of the

BHC Act, including whether

consummation of the proposal can

‘‘reasonably be expected to produce

benefits to the public, such as greater

convenience, increased competition, or

gains in efficiency, that outweigh

possible adverse effects, such as undue

concentration of resources, decreased or

unfair competition, conflicts of

interests, or unsound banking practices’’

(12 U.S.C. 1843). Any request for a

hearing on this question must be

accompanied by a statement of the

reasons a written presentation would

not suffice in lieu of a hearing,

identifying specifically any questions of

fact that are in dispute, summarizing the

evidence that would be presented at a

hearing, and indicating how the party

commenting would be aggrieved by

approval of the proposal.

Unless otherwise noted, comments

regarding the applications must be

received at the Reserve Bank indicated

or the offices of the Board of Governors

not later than February 24, 1997.

A. Federal Reserve Bank of New

York (Christopher J. McCurdy, Senior

Vice President) 33 Liberty Street, New

York, New York 10045-0001:

1. Creditanstalt-Bankverein, Vienna,

Austria; to engage de novo in making

equity investments either directly or

through a wholly-owned U.S. subsidiary

in diversified partnerships, limited

liability companies, corporations, and

investment funds that engage in

activities designed to promote

community welfare, including

developing, and/or acquiring and

owning interest in, certain affordable

rental housing properties, pursuant to §

225.25(b)(6) of the Board’s Regulation Y.

2. The Toronto-Dominion Bank,

Toronto, Canada, and Waterhouse

Investor Services, Inc. New York, New

York; to engage through their whollyowned subsidiary, Waterhouse

Securities, Inc., New York, New York

(‘‘Company’’), in the purchase and sale

of securities on the order of customers

as riskless principal. See The Bank of

New York Company, Inc., 82 Fed. Res.

Bull. 748 (1996); Bankers Trust New

York Corporation, 75 Fed. Res. Bull. 829

(1989). Company would conduct this

activity in accordance with the

framework of limitations established in

the Board’s prior orders. See Order

Revising the Limitations Applicable to

Riskless Principal Activities, 82 Fed.

Res. Bull. 759 (1996).

B. Federal Reserve Bank of San

Francisco (Kenneth R. Binning,

Director, Bank Holding Company) 101