1     
FINANCIAL INSTITUTIONS AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Curtis S. Bramble

5     
House Sponsor: Val L. Peterson

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Financial Institutions Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the definition provisions;
13          ▸     addresses persons or institutions subject to the jurisdiction of the department;
14          ▸     clarifies extent of regulation of technology service providers;
15          ▸     authorizes the commission to share information from certain examination reports
16     with a depository institution receiving services from a technology service provider;
17     and
18          ▸     makes technical changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          7-1-103, as last amended by Laws of Utah 2014, Chapter 189
26          7-1-501, as last amended by Laws of Utah 2008, Chapter 96
27          7-1-802, as last amended by Laws of Utah 2014, Chapter 189

28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 7-1-103 is amended to read:
31          7-1-103. Definitions.
32          As used in this title:
33          (1) (a) "Bank" means a person authorized under the laws of this state, another state, or
34     the United States to accept deposits from the public.
35          (b) "Bank" does not include:
36          (i) a federal savings and loan association or federal savings bank;
37          (ii) an industrial bank subject to Chapter 8, Industrial Banks;
38          (iii) a federally chartered credit union; or
39          (iv) a credit union subject to Chapter 9, Utah Credit Union Act.
40          (2) "Banking business" means the offering of deposit accounts to the public and the
41     conduct of such other business activities as may be authorized by this title.
42          (3) (a) "Branch" means a place of business of a financial institution, other than its main
43     office, at which deposits are received and paid.
44          (b) "Branch" does not include:
45          (i) an automated teller machine, as defined in Section 7-16a-102;
46          (ii) a point-of-sale terminal, as defined in Section 7-16a-102; or
47          (iii) a loan production office under Section 7-1-715.
48          (4) "Commissioner" means the Commissioner of Financial Institutions.
49          (5) "Control" means the power, directly or indirectly, to:
50          (a) direct or exercise a controlling influence over:
51          (i) the management or policies of a financial institution; or
52          (ii) the election of a majority of the directors or trustees of an institution;
53          (b) vote 20% or more of any class of voting securities of a financial institution by an
54     individual; or
55          (c) vote more than 10% of any class of voting securities of a financial institution by a
56     person other than an individual.
57          (6) "Credit union" means a cooperative, nonprofit association incorporated under:
58          (a) Chapter 9, Utah Credit Union Act; or

59          (b) 12 U.S.C. Sec. 1751 et seq., Federal Credit Union Act, as amended.
60          (7) "Department" means the Department of Financial Institutions.
61          (8) "Depository institution" means a bank, savings and loan association, savings bank,
62     industrial bank, credit union, or other institution that:
63          (a) holds or receives deposits, savings, or share accounts;
64          (b) issues certificates of deposit; or
65          (c) provides to its customers other depository accounts that are subject to withdrawal
66     by checks, drafts, or other instruments or by electronic means to effect third party payments.
67          (9) (a) "Depository institution holding company" means:
68          (i) a person other than an individual that:
69          (A) has control over any depository institution; or
70          (B) becomes a holding company of a depository institution under Section 7-1-703; or
71          (ii) a person other than an individual that the commissioner finds, after considering the
72     specific circumstances, is exercising or is capable of exercising a controlling influence over a
73     depository institution by means other than those specifically described in this section.
74          (b) Except as provided in Section 7-1-703, a person is not a depository institution
75     holding company solely because it owns or controls shares acquired in securing or collecting a
76     debt previously contracted in good faith.
77          (10) "Financial institution" means any institution subject to the jurisdiction of the
78     department because of this title.
79          (11) (a) "Financial institution holding company" means a person, other than an
80     individual that has control over any financial institution or any person that becomes a financial
81     institution holding company under this chapter, including an out-of-state or foreign depository
82     institution holding company.
83          (b) Ownership of a service corporation or service organization by a depository
84     institution does not make that institution a financial institution holding company.
85          (c) A person holding 10% or less of the voting securities of a financial institution is
86     rebuttably presumed not to have control of the institution.
87          (d) A trust company is not a holding company solely because it owns or holds 20% or
88     more of the voting securities of a financial institution in a fiduciary capacity, unless the trust
89     company exercises a controlling influence over the management or policies of the financial

90     institution.
91          (12) "Foreign depository institution" means a depository institution chartered or
92     authorized to transact business by a foreign government.
93          (13) "Foreign depository institution holding company" means the holding company of a
94     foreign depository institution.
95          (14) "Home state" means:
96          (a) for a state chartered depository institution, the state that charters the institution;
97          (b) for a federally chartered depository institution, the state where the institution's main
98     office is located; and
99          (c) for a depository institution holding company, the state in which the total deposits of
100     all depository institution subsidiaries are the largest.
101          (15) "Host state" means:
102          (a) for a depository institution, a state, other than the institution's home state, where the
103     institution maintains or seeks to establish a branch; and
104          (b) for a depository institution holding company, a state, other than the depository
105     institution holding company's home state, where the depository institution holding company
106     controls or seeks to control a depository institution subsidiary.
107          (16) "Industrial bank" means a corporation or limited liability company conducting the
108     business of an industrial bank under Chapter 8, Industrial Banks.
109          (17) "Industrial loan company" [is as] means the same as that term is defined in Section
110     7-8-21.
111          (18) "Insolvent" means the status of a financial institution that is unable to meet its
112     obligations as they mature.
113          (19) "Institution" means:
114          (a) a corporation;
115          (b) a limited liability company;
116          (c) a partnership;
117          (d) a trust;
118          (e) an association;
119          (f) a joint venture;
120          (g) a pool;

121          (h) a syndicate;
122          (i) an unincorporated organization; or
123          (j) any form of business entity.
124          (20) "Institution subject to the jurisdiction of the department" means an institution or
125     other person described in Section 7-1-501.
126          (21) "Liquidation" means the act or process of winding up the affairs of an institution
127     subject to the jurisdiction of the department by realizing upon assets, paying liabilities, and
128     appropriating profit or loss, as provided in Chapter 2, Possession of Depository Institution by
129     Commissioner, and Chapter 19, Acquisition of Failing Depository Institutions or Holding
130     Companies.
131          (22) "Liquidator" means a person, agency, or instrumentality of this state or the United
132     States appointed to conduct a liquidation.
133          (23) (a) "Money services business" includes:
134          (i) a check casher;
135          (ii) a deferred deposit lender;
136          (iii) an issuer or seller of traveler's checks or money orders; and
137          (iv) a money transmitter.
138          (b) "Money services business" does not include:
139          (i) a bank;
140          (ii) a person registered with, and functionally regulated or examined by the Securities
141     Exchange Commission or the Commodity Futures Trading Commission, or a foreign financial
142     agency that engages in financial activities that, if conducted in the United States, would require
143     the foreign financial agency to be registered with the Securities Exchange Commission or the
144     Commodity Futures Trading Commission; or
145          (iii) an individual who engages in an activity described in Subsection (23)(a) on an
146     infrequent basis and not for gain or profit.
147          (24) "Negotiable order of withdrawal" means a draft drawn on a NOW account.
148          (25) (a) "NOW account" means a savings account from which the owner may make
149     withdrawals by negotiable or transferable instruments for the purpose of making transfers to
150     third parties.
151          (b) A "NOW account" is not a demand deposit.

152          (c) Neither the owner of a NOW account nor any third party holder of an instrument
153     requesting withdrawal from the account has a legal right to make withdrawal on demand.
154          (26) "Out-of-state" means, in reference to a depository institution or depository
155     institution holding company, an institution or company whose home state is not Utah.
156          (27) "Person" means:
157          (a) an individual;
158          (b) a corporation;
159          (c) a limited liability company;
160          (d) a partnership;
161          (e) a trust;
162          (f) an association;
163          (g) a joint venture;
164          (h) a pool;
165          (i) a syndicate;
166          (j) a sole proprietorship;
167          (k) an unincorporated organization; or
168          (l) any form of business entity.
169          (28) "Receiver" means a person, agency, or instrumentality of this state or the United
170     States appointed to administer and manage an institution subject to the jurisdiction of the
171     department in receivership, as provided in Chapter 2, Possession of Depository Institution by
172     Commissioner, and Chapter 19, Acquisition of Failing Depository Institutions or Holding
173     Companies.
174          (29) "Receivership" means the administration and management of the affairs of an
175     institution subject to the jurisdiction of the department to conserve, preserve, and properly
176     dispose of the assets, liabilities, and revenues of an institution in possession, as provided in
177     Chapter 2, Possession of Depository Institution by Commissioner, and Chapter 19, Acquisition
178     of Failing Depository Institutions or Holding Companies.
179          (30) "Savings account" means any deposit or other account at a depository institution
180     that is not a transaction account.
181          (31) "Savings and loan association" means:
182          (a) a federal savings and loan association; and

183          (b) an out-of-state savings and loan association.
184          (32) "Service corporation" or "service organization" means a corporation or other
185     business entity owned or controlled by one or more financial institutions that is engaged or
186     proposes to engage in business activities related to the business of financial institutions.
187          (33) "State" means, unless the context demands otherwise:
188          (a) a state;
189          (b) the District of Columbia; or
190          (c) the territories of the United States.
191          (34) "Subsidiary" means a business entity under the control of an institution.
192          (35) "Technology service provider" means a person that provides a data processing
193     service or activity that supports the financial services or Internet related services of a depository
194     institution subject to the jurisdiction of the department, including supporting:
195          (a) lending;
196          (b) money transfers;
197          (c) fiduciary activities;
198          (d) trading activities;
199          (e) deposit taking;
200          (f) web services and electronic bill payments;
201          (g) mobile applications;
202          (h) system and software development and maintenance; and
203          (i) security monitoring.
204          [(35)] (36) (a) "Transaction account" means a deposit, account, or other contractual
205     arrangement in which a depositor, account holder, or other customer is permitted, directly or
206     indirectly, to make withdrawals by:
207          (i) check or other negotiable or transferable instrument;
208          (ii) payment order of withdrawal;
209          (iii) telephone transfer;
210          (iv) other electronic means; or
211          (v) any other means or device for the purpose of making payments or transfers to third
212     persons.
213          (b) "Transaction account" includes:

214          (i) demand deposits;
215          (ii) NOW accounts;
216          (iii) savings deposits subject to automatic transfers; and
217          (iv) share draft accounts.
218          [(36)] (37) "Trust company" means a person authorized to conduct a trust business, as
219     provided in Chapter 5, Trust Business.
220          [(37)] (38) "Utah depository institution" means a depository institution whose home
221     state is Utah.
222          [(38)] (39) "Utah depository institution holding company" means a depository
223     institution holding company whose home state is Utah.
224          Section 2. Section 7-1-501 is amended to read:
225          7-1-501. Institutions and persons subject to jurisdiction of department.
226          (1) As provided in this title and the rules of the department, the persons and institutions
227     described in Subsection (2) are subject to:
228          (a) the jurisdiction of the department; and
229          (b) supervision and examination by the department.
230          (2) Subsection (1) applies to:
231          (a) [all depository institutions] a depository institution chartered under the laws of this
232     state, including any out-of-state [branches] branch of the depository institution;
233          (b) [all Utah depository institutions] a Utah depository institution chartered by the
234     federal government, but only to the extent the application of this title is authorized by:
235          (i) federal law; or
236          (ii) the appropriate federal regulatory agency;
237          (c) [all Utah branches of] a Utah branch of an out-of-state depository [institutions]
238     institution chartered under the laws of another state;
239          (d) [all Utah branches of] a Utah branch of an out-of-state depository [institutions]
240     institution chartered by the federal government, but only to the extent the application of this
241     title is authorized by:
242          (i) federal law; or
243          (ii) the appropriate federal regulatory agency;
244          (e) [all service corporations and service organizations] a service corporation or service

245     organization, including a credit union service [organizations] organization as defined in Section
246     7-9-3;
247          (f) [all] a trust [companies] company;
248          (g) [all] an escrow [companies] company;
249          (h) [all persons or institutions] a person or institution engaged in this state in the
250     business of:
251          (i) guaranteeing or insuring deposits, savings accounts, share accounts, or other
252     accounts in depository institutions;
253          (ii) operating a loan production office for:
254          (A) a Utah depository institution;
255          (B) an out-of-state depository institution; or
256          (C) a foreign depository institution;
257          [(iii) allowing persons to effect third party payments from loan, charge, or other
258     accounts by checks, drafts, or other instruments or by electronic means; or]
259          [(iv)] (iii) a check casher or deferred deposit lender, as defined in Section 7-23-102;
260          (iv) a title lender, as defined in Section 7-24-102; or
261          (v) money transmission, as defined in Section 7-25-102;
262          (i) [all corporations] a corporation or other business [entities] entity owning or
263     controlling an institution subject to the jurisdiction of the department;
264          (j) subject to Subsection (3), a technology service provider that provides services to a
265     depository institution subject to the jurisdiction of the department;
266          [(j) all subsidiaries and affiliates]
267          (k) a subsidiary or affiliate of an institution subject to the jurisdiction of the
268     department; and
269          [(k)] (l) any person or institution that, with or without authority to do so, transacts
270     business as, or holds itself out as being, a depository institution, trust company, or any other
271     person or institution described in this section as being subject to the jurisdiction of the
272     department.
273          (3) A technology service provider is subject to regulation and examination by the
274     commissioner to the same extent as if the service or activity of the technology service provider
275     were being performed by the depository institution itself.

276          Section 3. Section 7-1-802 is amended to read:
277          7-1-802. Confidentiality of information received by department -- Availability of
278     information.
279          (1) The commissioner shall receive and place on file in the department's office all
280     reports required by law and shall certify all reports required to be published.
281          (2) Except as provided in this section, the following are confidential, not public
282     records, and not open to public inspection:
283          (a) all reports received or prepared by the department;
284          (b) all information obtained from an institution or person under the jurisdiction of the
285     department; and
286          (c) all orders and related records of the department.
287          (3) The following records and information are public and are open to public inspection:
288          (a) reports of condition required by Section 7-1-318;
289          (b) information that is otherwise generally available to the public; and
290          (c) information contained in, and final decisions on, an application filed under Sections
291     7-1-702, 7-1-703, 7-1-704, 7-1-705, 7-1-706, 7-1-708, 7-1-709, 7-1-712, 7-1-713, or Chapter
292     19, Acquisition of Failing Depository Institutions or Holding Companies, excluding:
293          (i) proprietary information, business plans, and personal financial information; and
294          (ii) information for which:
295          (A) the applicant requests confidentiality; and
296          (B) the commissioner grants the request for confidentiality.
297          (4) The department may disclose records and information that are not public to the
298     following:
299          (a) to an agency or authority:
300          (i) that regulates:
301          (A) the subject of the record; or
302          (B) an affiliate of the subject of the record, as defined by the commissioner by rule; and
303          (ii) is of:
304          (A) the federal government;
305          (B) the state; or
306          (C) another state;

307          (b) to a federal deposit insurance agency;
308          (c) to an official legally authorized to investigate criminal charges in connection with
309     the affairs of the subject of the record, and to any tribunal conducting legal proceedings
310     resulting from such an investigation;
311          (d) to a person preparing a proposal for merging or acquiring an institution under
312     Chapter 2, Possession of Depository Institution by Commissioner, or Chapter 19, Acquisition
313     of Failing Depository Institutions or Holding Companies, but only after the department
314     provides notice of the disclosure to the institution;
315          (e) to any other person, if the commissioner determines, after notice to the institution
316     or person that is the subject of the record and opportunity for hearing, that the interests favoring
317     disclosure of the information outweigh the interests favoring confidentiality of the information;
318     and
319          (f) to any court in a proceeding under:
320          (i) Sections 7-1-304, 7-1-320, 7-1-322; or
321          (ii) a supervisory action under Chapter 2, Possession of Depository Institution by
322     Commissioner, or Chapter 19, Acquisition of Failing Depository Institutions or Holding
323     Companies.
324          (5) The commissioner may limit the use and further disclosure of any information
325     disclosed under Subsection (4):
326          (a) to protect the business confidentiality interest of the subject of the record; and
327          (b) to protect the public interest, such as to avoid:
328          (i) a liquidity crisis in a depository institution; or
329          (ii) undue speculation in securities or currency markets.
330          (6) The department shall disclose information in the manner and to the extent directed
331     by a court order signed by a judge from a court of competent jurisdiction if:
332          (a) the disclosure does not violate applicable federal or state law;
333          (b) the information to be disclosed deals with a matter in controversy over which the
334     court has jurisdiction;
335          (c) the person requesting the order has provided reasonable prior written notice to the
336     commissioner;
337          (d) the court has considered the merits of the request for disclosure and has determined

338     that the interests favoring disclosure of the information outweigh the interests favoring
339     confidentiality of the information; and
340          (e) the court has appropriately limited the use and further disclosure of the information:
341          (i) to protect the business confidentiality interest of the subject of the record; and
342          (ii) to protect the public interest, such as to avoid:
343          (A) a liquidity crisis in a depository institution; or
344          (B) undue speculation in securities or currency markets.
345          (7) Notwithstanding the other provisions of this section, the commissioner may provide
346     information from a report of an examination performed by the commissioner of the condition
347     and affairs of a technology service provider to a depository institution serviced by the
348     technology service provider.






Legislative Review Note
Office of Legislative Research and General Counsel