12-A - Power of state chartered banking institutions to exercise the rights of counterpart federally chartered banking institutions.

* §  12-a.  Power  of state chartered banking institutions to exercise  the rights of counterpart federally chartered banking  institutions.  1.  Definitions.  (a)  As  used  in  this  section, "state chartered banking  institution" shall mean any bank, trust company, private banker, savings  bank, savings and loan  association,  foreign  banking  corporation,  or  credit union.    (b) As used in this section and as is applicable, "federally chartered  banking  institution"  shall  mean  (i) any national banking association  organized pursuant to the National Bank Act of 1864, as amended, (12 USC  21 et seq.); (ii) any  federal  savings  association  as  such  term  is  defined  by  the  Federal  Deposit  Insurance  Act,  as amended, (12 USC  1813(b)(2)); (iii) a federal branch and agency of  a  foreign  bank,  as  such  terms  are  defined  by  the International Banking Act of 1978, as  amended, (122 USC 3101); or (iv) a federal credit union, as such term is  defined by the Federal Credit Union Act, as amended, (12 USC 1752(1)).    (c) As used in this section, "charter"  shall  mean  the  organization  certificate  or  comparable  document of a state banking institution, or  the  license  for  a  state  branch  or  agency  of  a  foreign  banking  corporation,  or a similar organizational document for a federal banking  institution or a federal branch or agency, and  "chartered"  shall  mean  the  formal act of the state or appropriate federal regulatory agency in  approving and conveying such charter of a banking institution.    (d) As used in this section, "federally permitted  power"  shall  mean  any  right,  power,  privilege  or  benefit,  any activity, or any loan,  investment  or  transaction  which   a   federally   chartered   banking  institution  directly  or  through  a  subsidiary  or  subsidiaries, may  lawfully exercise or into which it may lawfully engage or enter.    (e) As used in this section "foreign banking corporation" shall mean a  banking corporation organized under the laws of a  foreign  country  and  acting   through  a  branch  or  agency  licensed  pursuant  to  section  twenty-six of this article.    (f) As used in this section, unless the  context  requires  otherwise,  the  term  "subsidiary"  shall  have  the  same  meaning as set forth in  subdivision five of section  one  hundred  forty-one  of  this  chapter,  except that (i) any reference therein to "bank holding company" shall be  deemed to refer to a "state chartered banking institution" as defined in  this  section,  and  (ii)  with  respect  to  a  credit  union, the term  "subsidiary" as  used  in  this  section  shall  mean  a  "credit  union  organization".    2. Pursuant to this section and notwithstanding any other provision of  law,  except  as  otherwise  provided  in its charter, a state-chartered  banking institution may exercise any federally permitted  power  of  its  counterpart federally chartered banking institution as herein set forth:    (a)  a  bank,  private  banker,  or  trust  company  may  exercise any  federally permitted power of a national banking association;    (b) a savings bank or savings and loan association  may  exercise  any  federally permitted power of a federal savings association;    (c) a foreign banking corporation acting through a branch may exercise  any federally permitted power of a foreign bank acting through a federal  branch;    (d)  a  foreign  banking  corporation  acting  through  an  agency may  exercise any federally permitted power of a foreign bank acting  through  a federal agency;    (e)  a  credit  union  may exercise any federally permitted power of a  federal credit union.    Nothing contained in this section shall be deemed to  permit  a  state  chartered  banking institution to exercise any federally permitted power  except in a manner consistent with the following provisions of  law,  ineach case, as the terms contained in such provisions may be amended from  time to time:    (i) chapter one of the laws of nineteen hundred ninety-four;    (ii) chapter nine of the laws of nineteen hundred ninety-six; and    (iii)  sections fourteen-c, twenty-eight-b, thirty-nine and forty-four  of this article, and sections  six  hundred  five  through  six  hundred  thirty-four  of  this  chapter,  and  with  respect to savings banks and  savings and loan associations, respectively, section two  hundred  forty  and section three hundred ninety-six of this chapter.    3.  Except  with  respect  to  a  federally  permitted  power approved  pursuant to subdivision  four  of  this  section,  prior  to  any  state  chartered   banking   institution  initially  exercising  any  federally  permitted power pursuant to this section, such banking institution shall  make an application individually or with one  or  more  state  chartered  banking   institutions   to  the  superintendent  indicating  that  such  institution or institutions intend to exercise such federally  permitted  power  and  the  basis on which such institution or institutions believe  such power is a federally permitted power. The superintendent shall post  such application upon the bulletin board of the department  pursuant  to  section  forty-two  of  this  article.  After  promptly  reviewing  such  application, the superintendent shall  determine,  consistent  with  the  standards  set  forth  in  subdivision  five of this section, whether to  recommend to the banking board approval of such application  subject  to  such  terms  and conditions as he or she may deem appropriate, in his or  her sole discretion. Such determination, and any recommendation  to  the  banking   board  to  approve  an  application,  shall  be  made  by  the  superintendent  within  forty-five  days  after  the  posting  of   such  application   by   the   superintendent,   provided   however  that  the  superintendent may notify the applicant or applicants that the review of  the application shall be extended for an additional period of  time  not  exceeding one hundred twenty days after the posting of such application,  and  provided  further  that  such period of time may be extended for an  additional period of time with the written consent of the  applicant  or  applicants.  The  banking  board shall not act upon the superintendent's  recommendation prior to thirty days  after  such  application  has  been  posted.  If the superintendent shall determine not to recommend approval  of such application, the superintendent shall notify  the  applicant  or  applicants  in writing that the applicant or applicants may not exercise  such federally permitted power.  If  the  superintendent  determines  to  recommend  approval  of such application, and the banking board approves  such  application  by  adoption  of  a  resolution,  the  applicant   or  applicants  may  exercise such federally permitted power subject to such  terms and conditions as the banking board  may  have  approved.  If  the  banking  board  declines to approve such application, the superintendent  shall  notify  the  applicant  or   applicants   in   writing   thereof.  Notwithstanding   any   other   law,   the   banking   board,  upon  the  recommendation of the  superintendent,  may,  by  resolution,  make  the  approval  of an application under this section applicable to one or more  additional state chartered banking institutions that  are  qualified  to  exercise  the  same  federally  permitted  powers  as  the  applicant or  applicants pursuant to subdivision two of this section, subject to  such  terms  and  conditions  as  the  superintendent shall find necessary and  appropriate and as approved by the banking board.    4. Notwithstanding any other law, the superintendent, in  his  or  her  sole  discretion, may, when he or she deems it necessary and appropriate  after considering the standards set forth in subdivision  five  of  this  section,  recommend  to  the  banking  board  that it adopt a resolution  authorizing one or more state chartered banking institutions to exercisea federally permitted power, subject to such terms and conditions as the  superintendent shall find necessary and appropriate and as  approved  by  the  banking  board.  Prior  to  making  any  such recommendation to the  banking  board,  the  superintendent shall post such recommendation upon  the bulletin board of the department pursuant to  section  forty-two  of  this   article,   and   the  banking  board  shall  not  act  upon  such  recommendation prior to thirty days after such recommendation  has  been  posted.    5.  Prior  to  approving  any  recommendation  by  the  superintendent  pursuant to subdivision three or four of this section, the banking board  shall make a finding that the approval of such recommendation is:    (i) consistent with the policy of the state of New York as declared in  section ten of this article and thereby protects  the  public  interest,  including   the   interests   of  depositors,  creditors,  shareholders,  stockholders and consumers; and    (ii) necessary to achieve or maintain parity between  state  chartered  banking  institutions  and their counterpart federally chartered banking  institutions with  respect  to  rights,  powers,  privileges,  benefits,  activities, loans, investments or transactions.    6.  A  federally  permitted  power authorized pursuant to this section  shall not exceed and shall be limited by any conditions,  qualifications  or  restrictions  on  the same when exercised by a counterpart federally  chartered banking institution of a state chartered  banking  institution  unless the state chartered banking institution is so authorized by other  New  York state law, or a rule, regulation or policy adopted pursuant to  such  other  New  York  state  law,   or   by   a   judicial   decision.  Notwithstanding  any  other  law,  the  superintendent may, at any time,  impose by order any other terms  and  conditions  as  he  or  she  finds  necessary  and  proper including, but not limited to, a requirement that  any federally permitted power authorized by this section  be  exercised,  conducted  or  held  in  a  subsidiary  of  a  state  chartered  banking  institution. In the event that federally chartered banking  institutions  located  in  the  state  of  New  York  lose the authority to exercise a  federally permitted power, based upon  which  comparable  authority  was  granted to the counterpart state chartered banking institutions pursuant  to  this  section, then unless such authority is authorized by other New  York state law, or a rule, regulation or policy adopted pursuant to such  other New York state law, or by a judicial decision,  the  authorization  for  such  state chartered banking institutions pursuant to this section  shall be deemed revoked, provided, however,  that  any  such  revocation  shall be subject to such terms and conditions as may be imposed upon the  counterpart   federally   chartered   banking  institutions  or  by  the  superintendent.    7. (a) In those instances where state chartered  banking  institutions  are  permitted  to  engage in the business of insurance pursuant to this  section, they shall do so subject to regulation  by  the  department  of  insurance  and  pursuant  to all insurance laws, rules, and regulations;  provided, however, that the superintendent,  in  consultation  with  the  superintendent   of   insurance,  may  exempt  state  chartered  banking  institutions from any insurance law, rule or regulation which  has  been  preempted  under federal law, rule or regulation for federally chartered  banking institutions if such law, rule or regulation has been  preempted  because  it  applies  to  insurance  activities  of  federally chartered  banking institutions and not to those of other entities.    (b) In those instances where a federally  permitted  power  authorized  pursuant  to  this  section  is  subject  to regulation by an agency, as  defined in subdivision one of section  one  hundred  two  of  the  state  administrative  procedure  act,  other  than the superintendent, bankingboard or superintendent  of  insurance,  then  when  a  state  chartered  banking  institution exercises such federally permitted power, unless it  is so authorized by other New York state law, or a rule,  regulation  or  policy  adopted  pursuant  to  such  other  New  York state law, or by a  judicial decision, it shall do so subject to such regulation to the same  extent and in the same manner as such agency  regulates  entities  other  than  state  chartered  banking  institutions, except to the extent that  federally  chartered  banking  institutions  are  not  subject  to  such  regulation.    (c)  Except  with  respect  to a credit unemployment insurance policy,  group credit life insurance policy, a group credit health, group  credit  accident  or  group  credit health and accident policy, or similar group  credit insurance covering the person of  the  insured,  state  chartered  banking  institutions, federally chartered banking institutions, and any  person soliciting the purchase of or selling insurance on  the  premises  thereof,  must  disclose  or  cause  to  be  disclosed in writing, where  practicable, in clear and  concise  language,  to  their  customers  and  prospective  customers  who  are  solicited  therefor that any insurance  offered or sold:    (i) is not a deposit;    (ii) is not insured by the federal deposit  insurance  corporation  or  the national credit union share insurance fund, as applicable; and    (iii)  is not guaranteed by the state chartered banking institution or  the federally chartered banking institution.    (d) Except with respect to a  flood  insurance  policy,  or  a  credit  unemployment  insurance  policy,  group  credit life insurance policy, a  group credit health, group credit accident or group  credit  health  and  accident  policy,  or similar group credit insurance covering the person  of the insured, when a customer obtains  insurance  and  credit  from  a  state  chartered  banking  institution  or a federally chartered banking  institution,  then  the  credit  and  insurance  transactions  shall  be  completed  through separate documents. The expense of insurance premiums  may not be included  in  the  primary  credit  transaction  without  the  express written consent of the customer.    (e)  State  chartered  banking  institutions  and  federally chartered  banking institutions shall not extend credit, lease or sell property  of  any  kind, or furnish any services, or fix or vary the consideration for  any of the foregoing, on the condition or requirement that the  customer  obtain  insurance  from  the  state  chartered  banking  institution  or  federally chartered banking institution, its affiliate or subsidiary, or  a particular insurer, agent or  broker;  provided,  however,  that  this  prohibition shall not prevent any state chartered banking institution or  federally  chartered  banking  institution from engaging in any activity  described in this subdivision that would not violate section 106 of  the  Bank  Holding Company Act Amendments of 1970 (12 USCA §1971 et seq.), as  interpreted by the Board of Governors of  the  Federal  Reserve  System.  This prohibition shall not prevent a state chartered banking institution  or  federally  chartered  banking  institution from informing a customer  that insurance is required in order to obtain a  loan  or  credit,  that  loan or credit approval is contingent upon the customer's procurement of  acceptable  insurance,  or  that  insurance  is available from the state  chartered   banking   institution   or   federally   chartered   banking  institution;   provided,  however,  that  the  state  chartered  banking  institution or federally chartered banking institution shall also inform  the customer in writing that his or her  choice  of  insurance  provider  shall  not affect the state chartered banking institution's or federally  chartered banking institution's credit decision or credit terms  in  any  way. Such disclosure shall be given prior to or at the time that a statechartered banking institution or federally chartered banking institution  or  person  selling  insurance  on  the  premises  thereof  solicits the  purchase of any insurance from a customer who has applied for a loan  or  extension of credit.    (f)  No  state  chartered  banking  institution or federally chartered  banking institution shall require a debtor, insurer, or insurance  agent  or  broker  to  pay a separate charge in connection with the handling of  insurance that is required in connection with a loan or other  extension  of credit or the provision of another traditional banking product solely  because  the insurance is being provided by an insurance agent or broker  which is not  the  state  chartered  banking  institution  or  federally  chartered banking institution or any subsidiary or affiliate thereof.    (g)  Any  state  chartered  banking institution or federally chartered  banking institution and any subsidiary or  affiliate  thereof  which  is  licensed  to  sell  insurance  in this state shall maintain separate and  distinct books and  records  relating  to  its  insurance  transactions,  including  all files relating to and reflecting consumer complaints, and  such insurance  books  and  records  shall  be  made  available  to  the  superintendent of insurance for inspection upon reasonable notice.    8.  (a)  On  or  before  June  first,  two thousand eight and annually  thereafter, the superintendent shall submit a report  to  the  governor,  the  speaker of the assembly, the temporary president of the senate, the  minority leaders of the senate and assembly, and the chairs and  ranking  minority  members  of  the  senate  and assembly banks committees, which  shall include, with respect  to  the  authority  provided  for  in  this  section,  a  listing  of  state chartered banking institutions that have  been retained, established or that have converted to federally chartered  banking institutions or have been acquired by, or merged with  and  into  another  state  or  out-of-state  state chartered banking institution or  federally chartered banking institution and the total employment of  the  banking  sector  in  this  state,  the total number of chartered banking  institutions located in this state, including branches,  and  the  total  amount  of  assets of such chartered or licensed banking institutions by  type of federal, state or out-of-state state charter.    (b)  On  or  before  June  first,  two  thousand  eight  and  annually  thereafter,   the   superintendent   shall,   in  conjunction  with  the  superintendent of insurance,  submit  a  report  to  the  governor,  the  speaker  of  the assembly, the temporary president of the senate and the  minority leaders of the senate and  the  assembly,  which  assesses  the  impact  of  the  provisions of this section which apply to the insurance  activities of state chartered banking institutions.    9. Any rules or regulations promulgated by the banking board  pursuant  to  former  sections  fourteen-g and fourteen-h of this chapter prior to  September first, two  thousand  seven,  including  any  such  rules  and  regulations  which in whole or in part impose conditions, qualifications  or restrictions on any federally  permitted  powers  authorized  thereby  which  exceed  the conditions, qualifications or restrictions imposed on  the same when exercised by a federally  chartered  banking  institution,  shall  remain in full force and effect on or after such date, unless any  such rule or regulation is thereafter superseded, modified,  or  revoked  by  the  banking  board pursuant to the provisions of subdivisions three  and four of this section.    * NB Repealed September 10, 2011