0001| AN ACT
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0002| RELATING TO INTERSTATE BANKING; PROVIDING FOR THE INTERSTATE ACQUISITION
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0003| OF NEW MEXICO BANKS AND NEW MEXICO BANK HOLDING COMPANIES AND FOR
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0004| INTERSTATE BANK BRANCHING BY MERGER; AMENDING AND ENACTING SECTIONS OF
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0005| THE NMSA 1978.
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0006|
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0007| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0008| Section 1. SHORT TITLE.--Sections 1 through 12 of this act may be
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0009| cited as the "Interstate Bank Acquisition Act".
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0010| Section 2. DEFINITIONS.--As used in the Interstate Bank
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0011| Acquisition Act:
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0012| A. "acquire" means:
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0013| (1) for a company to merge or consolidate with a bank
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0014| holding company;
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0015| (2) for a company to assume direct or indirect
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0016| ownership or control of:
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0017| (a) more than twenty-five percent of any class of
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0018| voting shares of a bank holding company or a bank, if the acquiring
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0019| company was not a bank holding company prior to the acquisition;
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0020| (b) more than five percent of any class of voting
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0021| shares of a bank holding company or a bank, if the acquiring company was
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0022| a bank holding company prior to the acquisition; or
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0023| © all or substantially all of the assets of a
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0024| bank holding company or a bank; or
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0025| (3) for a company to take any other action that
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0001| results in the direct or indirect acquisition by the company of control
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0002| of a bank holding company or a bank;
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0003| B. "affiliate" means that term as defined in 12 U.S.C.A.
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0004| Section 371c(b);
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0005| C. "bank" means that term as defined in 12 U.S.C.A. Section
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0006| 1841(c);
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0007| D. "bank holding company" means that term as defined in 12
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0008| U.S.C.A. Section 1841(a) and includes a New Mexico bank holding company,
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0009| an out-of-state bank holding company and a foreign bank holding company;
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0010| E. "Bank Holding Company Act" means the federal Bank Holding
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0011| Company Act of 1956, 12 U.S.C.A. Section 1841 et seq.;
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0012| F. "bank supervisory agency" means:
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0013| (1) an agency of another state with primary
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0014| responsibility for chartering and supervising banks; and
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0015| (2) the office of the comptroller of the currency, the
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0016| federal deposit insurance corporation, the board of governors of the
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0017| federal reserve system and any successor to these agencies;
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0018| G. "branch" means that term as defined in Subsection C of
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0019| Section 58-5-2 NMSA 1978;
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0020| H. "company" means that term as defined in 12 U.S.C.A.
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0021| Section 1841(b);
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0022| I. "control" means that term as defined in 12 U.S.C.A.
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0023| Section 1841(a)(2);
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0024| J. "deposit" means that term as defined in 12 U.S.C.A.
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0025| Section 1813(l);
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0001| K. "depository institution" means an institution defined as
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0002| an "insured depository institution" in 12 U.S.C.A. Sections 1813(c)(2)
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0003| and (c)(3);
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0004| L. "director" means the director of the financial
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0005| institutions division of the regulation and licensing department;
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0006| M. "foreign bank holding company" means a bank holding
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0007| company that is organized under the laws of a country other than the
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0008| United States or a territory or possession of the United States;
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0009| N. "home state regulator" means, with respect to an
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0010| out-of-state bank holding company, the primary bank supervisory agency
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0011| of the state in which the company maintains its principal place of
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0012| business;
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0013| O. "New Mexico bank" means a bank that is:
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0014| (1) organized under the laws of this state; or
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0015| (2) organized under federal law and having its
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0016| principal place of business in this state;
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0017| P. "New Mexico bank holding company" means a bank holding
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0018| company that:
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0019| (1) had its principal place of business in this state
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0020| on July 1, 1966 or the date on which it became a bank holding company,
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0021| whichever is later; and
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0022| (2) is not controlled by an out-of-state bank holding
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0023| company;
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0024| Q. "New Mexico state bank" means a bank chartered by the
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0025| state of New Mexico;
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0001| R. "out-of-state bank holding company" means a bank holding
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0002| company that is not a New Mexico bank holding company;
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0003| S. "principal place of business" of a bank holding company
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0004| means the state in which the largest percentage of the total deposits of
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0005| its bank subsidiaries was deposited on the later of July 1, 1966 or the
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0006| date on which the company became a bank holding company;
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0007| T. "state" means the District of Columbia or a state,
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0008| territory or possession of the United States; and
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0009| U. "subsidiary" means that term as defined in 12 U.S.C.A.
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0010| Section 1841(d).
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0011| Section 3. PURPOSE AND INTENT OF ACT.--The purpose of the
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0012| Interstate Bank Acquisition Act is to establish the conditions under
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0013| which a company may acquire a New Mexico bank or a New Mexico bank
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0014| holding company. In enacting it the legislature intends to avoid
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0015| discrimination against out-of-state bank holding companies or foreign
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0016| bank holding companies in any manner that would violate Section 3(d) of
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0017| the Bank Holding Company Act.
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0018| Section 4. PERMITTED ACQUISITIONS.--
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0019| A. Except as provided in Subsection B of this section, a
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0020| company may not acquire a New Mexico state bank or a New Mexico bank
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0021| holding company without the prior approval of the director unless
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0022| federal law expressly permits the acquisition without that approval.
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0023| B. The prohibition of Subsection A of this section does not
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0024| apply if the acquisition is made:
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0025| (1) solely for the purpose of facilitating an
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0001| acquisition otherwise permitted pursuant to the Interstate Bank
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0002| Acquisition Act;
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0003| (2) in a transaction arranged by the director or
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0004| another bank supervisory agency to prevent the insolvency or closing of
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0005| the acquired bank; or
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0006| (3) in a transaction in which a bank forms its own
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0007| bank holding company, if the ownership rights of the former bank
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0008| shareholders are substantially similar to those of the shareholders of
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0009| the new bank holding company.
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0010| C. In a transaction for which the director's approval is not
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0011| required under this section, the acquiring company shall give written
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0012| notice to the director at least ninety days before the effective date of
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0013| the acquisition unless a shorter period of notice is required under
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0014| applicable federal law.
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0015| Section 5. REQUIRED APPLICATION--FORMS.--
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0016| A. A company that proposes to make an acquisition pursuant
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0017| to the Interstate Bank Acquisition Act shall:
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0018| (1) file with the director a copy of the application
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0019| that the company has filed with the responsible federal bank supervisory
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0020| agency and any additional information prescribed by the director; and
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0021| (2) pay to the director any application fee prescribed
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0022| by the director.
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0023| B. As long as they are consistent with the effective
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0024| discharge of the director's responsibilities, the application and
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0025| reporting forms established pursuant to the Interstate Bank Acquisition
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0001| Act shall conform to those established for the same purposes by the
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0002| board of governors of the federal reserve system pursuant to the Bank
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0003| Holding Company Act.
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0004| Section 6. STANDARDS FOR APPROVAL.--
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0005| A. In deciding whether to approve an application for a
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0006| proposed acquisition pursuant to the Interstate Bank Acquisition Act,
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0007| the director shall consider whether the acquisition may:
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0008| (1) be detrimental to the safety and soundness of the
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0009| New Mexico state bank or the New Mexico bank holding company to be
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0010| acquired;
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0011| (2) result in a substantial reduction of competition
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0012| in this state; or
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0013| (3) have a significantly adverse effect on the
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0014| convenience and needs of a community in this state served by the New
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0015| Mexico state bank or the New Mexico bank holding company to be acquired.
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0016| B. Except as otherwise expressly provided in this section,
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0017| the director shall not approve an acquisition pursuant to the Interstate
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0018| Bank Acquisition Act if upon effecting the transaction it would result
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0019| in the applicant, including a depository institution affiliated with the
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0020| applicant, holding an undue concentration of deposits totaling forty
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0021| percent or more of the total deposits in all depository institutions in
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0022| New Mexico.
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0023| C. The director may adopt a regulation establishing a
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0024| procedure authorizing the waiver of the limitation on deposit
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0025| concentration set forth in Subsection B of this section to prevent the
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0001| insolvency or closing of a New Mexico state bank.
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0002| D. The director shall not approve an application for an
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0003| acquisition pursuant to the Interstate Bank Acquisition Act unless
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0004| either the New Mexico bank to be acquired, or at least one New Mexico
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0005| bank subsidiary of the bank holding company to be acquired, has as of
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0006| the proposed date of acquisition been in existence and in continuous
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0007| operation under an active charter for a period of at least five years,
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0008| except that the director may approve an application for an acquisition
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0009| of a consumer credit bank chartered pursuant to the Consumer Credit Bank
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0010| Act even though the consumer credit bank has not been in continuous
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0011| operation under an active charter for a period of at least five years.
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0012| Section 7. PROCEDURES RELATING TO APPLICATIONS.--
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0013| A. The director shall approve or disapprove an application
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0014| for acquisition pursuant to the Interstate Bank Acquisition Act within
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0015| ninety days after receipt of a completed application unless the director
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0016| requests additional information from the applicant following receipt of
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0017| a completed application in which case the time limit for decision by the
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0018| director is the later of:
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0019| (1) the date set forth in this subsection; or
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0020| (2) thirty days after the director's receipt of the
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0021| requested additional information.
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0022| B. The director may hold a public hearing in connection with
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0023| an application if a significant issue of law or fact has been raised
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0024| with respect to the proposed acquisition.
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0025| C. If the director holds a public hearing in connection with
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0001| an application, the time limit specified in Subsection A of this section
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0002| shall be extended to thirty days after the conclusion of the public
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0003| hearing.
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0004| D. An application is deemed approved if the director takes
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0005| no action on the application within the time limits specified in this
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0006| section.
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0007| Section 8. REPORTS--EXAMINATIONS.--
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0008| A. To the extent specified by the director by regulation,
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0009| order or written request, each bank holding company that directly or
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0010| indirectly controls a New Mexico state bank or a New Mexico bank holding
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0011| company, or the home state regulator of the company, shall submit to the
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0012| director copies of each financial report filed by the company with any
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0013| bank supervisory agency within fifteen days after the report is filed
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0014| with the agency unless the report is one the disclosure of which is
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0015| prohibited by federal or state law.
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0016| B. To the extent disclosure is permitted by state or federal
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0017| law, a bank holding company that controls a New Mexico state bank or a
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0018| New Mexico bank holding company, or the home state regulator of the
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0019| controlling bank holding company, shall provide the director copies of
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0020| any reports of examination of that bank holding company or of the New
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0021| Mexico bank holding company.
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0022| C. The director may examine a New Mexico bank holding
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0023| company whenever the director has reason to believe that the company is
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0024| not being operated in compliance with the laws of this state or in
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0025| accordance with safe and sound banking practices. The provisions of
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0001| Section 58-1-46 NMSA 1978 shall apply to the examination.
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0002| Section 9. AGENCY ACTIVITIES.--
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0003| A. If it complies with the requirements of this section, a
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0004| New Mexico state bank may agree to act as an agent for any affiliated
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0005| bank depository institution to receive deposits, renew time deposits,
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0006| close loans, service loans, receive payments on loans and other
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0007| obligations and perform other services for which it has received the
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0008| prior approval of the director.
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0009| B. A New Mexico state bank that proposes to enter into an
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0010| agency agreement pursuant to this section shall file with the director,
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0011| at least thirty days before the effective date of the agreement:
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0012| (1) a notice of intention to enter into an agency
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0013| agreement with an affiliated depository institution;
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0014| (2) a description of the services proposed to be
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0015| performed under the agency agreement; and
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0016| (3) a copy of the agency agreement.
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0017| C. If any proposed service is not specifically designated in
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0018| Subsection A of this section and has not been approved previously in a
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0019| regulation issued by the director, the director shall decide, within
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0020| thirty days after receipt of the notice required by Subsection B of this
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0021| section, whether to approve the offering of the service. If the
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0022| director requests additional information after reviewing the notice, the
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0023| time limit for the director's decision is thirty days after receiving
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0024| the additional information. In deciding whether to approve a proposed
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0025| service, the director shall consider whether the service would be
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0001| consistent with state and federal law and the safety and soundness of
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0002| the principal and agent institutions. The New Mexico state bank shall
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0003| give appropriate notice to the public of each approval.
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0004| D. Any proposed service offered pursuant to Subsection C of
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0005| this section is deemed approved if the director takes no action after
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0006| receiving the notice required by Subsection B of this section within the
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0007| time limits specified in Subsection C of this section.
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0008| E. A New Mexico state bank may not pursuant to an agency
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0009| agreement:
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0010| (1) conduct any activity as an agent that it would be
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0011| prohibited from conducting as a principal under applicable state or
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0012| federal law; or
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0013| (2) have an agent conduct any activity that the bank
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0014| as principal would be prohibited from conducting under applicable state
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0015| or federal law.
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0016| F. The director may order a New Mexico state bank or any
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0017| other depository institution that is subject to the director's
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0018| enforcement powers to cease acting as an agent or principal under an
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0019| agency agreement with an affiliated depository institution if the
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0020| director finds the provisions of the agency agreement or the actions of
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0021| the parties pursuant to it to be inconsistent with safe and sound
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0022| banking practices.
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0023| G. A New Mexico state bank acting as an agent for an
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0024| affiliated depository institution in accordance with this section is not
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0025| a branch bank of that institution.
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0001| Section 10. AUTHORITY TO ISSUE REGULATIONS--COOPERATIVE
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0002| AGREEMENTS--FEES.--To carry out the purposes of the Interstate Bank
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0003| Acquisition Act, the director may:
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0004| A. adopt regulations;
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0005| B. enter into cooperative, coordinating or
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0006| information-sharing agreements with a bank supervisory agency or an
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0007| organization affiliated with or representing a bank supervisory agency;
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0008| C. accept a report of examination or investigation by a bank
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0009| supervisory agency having concurrent jurisdiction over a New Mexico
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0010| state bank or a bank holding company that controls a New Mexico state
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0011| bank in lieu of conducting an examination or investigation of the bank
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0012| or bank holding company;
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0013| D. enter into a sole source contract pursuant to Section
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0014| 13-1-126 NMSA 1978 with a bank supervisory agency having concurrent
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0015| jurisdiction over a New Mexico state bank or a bank holding company that
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0016| controls a New Mexico state bank to engage the services of that agency's
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0017| examiners at a reasonable rate of compensation, or to provide the
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0018| services of the director's examiners to that agency at a reasonable rate
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0019| of compensation;
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0020| E. conduct joint examinations or joint enforcement actions
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0021| with a bank supervisory agency having concurrent jurisdiction over a New
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0022| Mexico state bank or a bank holding company that controls a New Mexico
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0023| state bank, but if the examination or enforcement action involves an
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0024| out-of-state bank holding company, the director shall recognize the
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0025| exclusive authority of the home state regulator over corporate
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0001| governance matters and the primary responsibility of the home state
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0002| regulator with respect to safety and soundness matters;
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0003| F. conduct examinations and enforcement actions of a New
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0004| Mexico state bank or a New Mexico bank holding company that controls a
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0005| New Mexico state bank if the director determines that the action is
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0006| necessary to carry out the director's responsibilities pursuant to the
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0007| Interstate Bank Acquisition Act or to enforce compliance with the laws
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0008| of this state; and
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0009| G. include in regulations adopted provisions for:
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0010| (1) the assessment of supervisory and examination fees
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0011| to be paid by New Mexico banks and New Mexico bank holding companies in
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0012| connection with the director's performance of his duties; and
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0013| (2) sharing of fees assessed pursuant to Paragraph (1)
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0014| of this subsection with a bank supervisory agency or an organization
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0015| affiliated with or representing a bank supervisory agency in accordance
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0016| with an agreement between it and the director.
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0017| Section 11. ENFORCEMENT.--The director may enforce the provisions
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0018| of the Interstate Bank Acquisition Act by an action for injunctive
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0019| relief in the district court of Santa Fe county. The director shall
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0020| give notice promptly to the home state regulator of any action commenced
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0021| by the director against an out-of-state bank holding company and, to the
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0022| extent practicable, shall consult and cooperate with that regulator in
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0023| pursuing and resolving the enforcement action.
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0024| Section 12. SEVERABILITY.--If any part or application of the
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0025| Interstate Bank Acquisition Act is held invalid or to be superseded, the
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0001| remainder or its application to other situations or persons shall not be
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0002| affected.
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0003| Section 13. Section 58-26-4 NMSA 1978 (being Laws 1988, Chapter
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0004| 5, Section 4, as amended) is amended to read:
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0005| "58-26-4. INTERSTATE ACQUISITIONS PERMITTED.--Notwithstanding the
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0006| provisions of Section 58-5-11 NMSA 1978 restricting interstate acquisi-
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0007| tion:
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0008| A. interstate acquisitions of domestic depository institu-
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0009| tions that are savings institutions or domestic holding companies whose
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0010| subsidiary depository institutions are savings institutions are per-
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0011| mitted by out-of-state depository institutions and out-of-state holding
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0012| companies effective January l, l989; provided, however, until July 1,
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0013| 1992, if a domestic depository institution is to be so acquired, the
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0014| acquired institution shall have been continuously operated for at least
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0015| five years, or if a domestic holding company is to be so acquired, at
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0016| least one of its subsidiary depository institutions shall have been con-
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0017| tinuously operated for at least five years; and
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0018| B. an interstate acquisition pursuant to this section may
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0019| not otherwise be contrary to law and shall not result in undue
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0020| concentration of deposits totaling forty percent or more of the total
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0021| deposits in all financial institutions in New Mexico."
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0022| Section 14. SHORT TITLE.--Sections 14 through 27 of this act may
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0023| be cited as the "Interstate Bank Branching Act".
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0024| Section 15. PURPOSE.--The purpose of the Interstate Bank
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0025| Branching Act is to permit interstate bank branching by merger pursuant
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0001| to the provisions of the federal Regle-Neal Interstate Banking and
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0002| Branching Efficiency Act of 1994, PL. 103-328. Section 16. DEFINITIONS.--As used in the Interstate Bank
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0003| Branching Act:
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0004| A. "bank" means that term as defined in 12 U.S.C.A.
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0005| Section 1813(h), but "bank" does not include any "foreign bank" as
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0006| defined in 12 U.S.C.A. Section 3101(7), unless the foreign bank is
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0007| organized under the laws of a territory of the United States, Puerto
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0008| Rico, Guam, American Samoa or the Virgin Islands and its deposits are
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0009| insured by the federal deposit insurance corporation;
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0010| B. "bank holding company" means that term as defined in 12
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0011| U.S.C.A. Section 1841(a)(1);
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0012| C. "bank supervisory agency" means:
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0013| (1) an agency of another state with primary
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0014| responsibility for chartering and supervising banks; and
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0015| (2) the office of the comptroller of the currency, the
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0016| federal deposit insurance corporation, the board of governors of the
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0017| federal reserve system, and any successor to these agencies;
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0018| D. "branch" means that term as defined in Subsection C of
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0019| Section 58-5-2 NMSA 1978;
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0020| E. "control" means that term as defined in 12 U.S.C.A.
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0021| Section 1841(a)(2);
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0022| F. "director" means the director of the financial
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0023| institutions division of the regulation and licensing department;
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0024| G. "home state" means:
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0025| (1) with respect to a state bank, the state in which
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0001| the bank is chartered;
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0002| (2) with respect to a national bank, the state in
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0003| which the main office of the bank is located; and
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0004| (3) with respect to a foreign bank, the state
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0005| determined to be the home state of the foreign bank pursuant to
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0006| 12 U.S.C.A. Section 3103(c);
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0007| H. "home state regulator" means the bank supervisory agency
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0008| of the state in which an out-of-state state bank is chartered;
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0009| I. "host state" means a state, other than the home state of
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0010| a bank, in which the bank maintains, or seeks to establish and maintain,
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0011| a branch;
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0012| J. "insured depository institution" means that term as
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0013| defined in 12 U.S.C.A. Section 1813(c)(2);
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0014| K. "interstate merger transaction" means:
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0015| (1) the merger or consolidation of banks with
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0016| different home states and the conversion of branches of any bank
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0017| involved in the merger or consolidation into branches of the resulting
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0018| bank; or
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0019| (2) the purchase of all or substantially all of the
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0020| assets and branches of a bank whose home state is different from the
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0021| home state of the acquiring bank;
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0022| L. "main office" means the office declared by a bank to its
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0023| chartering bank supervisory agency to be its main office;
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0024| M. "New Mexico bank" means a bank whose home state is New
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0025| Mexico;
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0001| N. "New Mexico state bank" means a bank chartered under the
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0002| laws of New Mexico;
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0003| O. "out-of-state bank" means a bank whose home state is a
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0004| state other than New Mexico;
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0005| P. "out-of-state state bank" means a bank chartered under
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0006| the laws of any state other than New Mexico;
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0007| Q. "resulting bank" means a bank that has resulted from an
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0008| interstate merger transaction under the Interstate Bank Branching Act;
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0009| and
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0010| R. "state" means a state of the United States, the District
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0011| of Columbia, a territory of the United States, Puerto Rico, Guam,
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0012| American Samoa, the Trust Territory of the Pacific Islands, the
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0013| Virgin Islands or the Northern Mariana Islands.
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0014| Section 17. AUTHORITY OF STATE BANKS TO ESTABLISH INTERSTATE
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0015| BRANCHES BY MERGER.--
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0016| A. If it obtains the prior approval of the director, a New
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0017| Mexico state bank may establish, maintain and operate one or more
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0018| branches in a state other than New Mexico pursuant to an interstate
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0019| merger transaction in which the New Mexico state bank is the resulting
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0020| bank.
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0021| B. Not later than the date on which the required application
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0022| for the interstate merger transaction is filed with the responsible
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0023| federal bank supervisory agency, the applicant New Mexico state bank
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0024| shall file the documents and information required by Subsections A and B
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0025| of Section 58-4-4 NMSA 1978 and pay a fee in an amount that shall be
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0001| prescribed by the director by rule.
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0002| C. The director shall approve the interstate merger
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0003| transaction and the operation of branches outside of New Mexico by the
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0004| New Mexico state bank if he finds that:
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0005| (1) the proposed transaction will not be detrimental
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0006| to the safety and soundness of the applicant or the resulting bank;
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0007| (2) any new officers and directors of the resulting
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0008| bank are qualified by character, experience and financial responsibility
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0009| to direct and manage the resulting bank; and
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0010| (3) the proposed merger is consistent with the
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0011| convenience and needs of the communities to be served by the resulting
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0012| bank in this state and is otherwise in the public interest.
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0013| D. The interstate merger transaction may be effected only
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0014| after the applicant has received the director's written approval.
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0015| Section 18. INTERSTATE MERGER TRANSACTIONS AND BRANCHING
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0016| PERMITTED.--
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0017| A. One or more New Mexico banks may enter into an interstate
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0018| merger transaction with one or more out-of-state banks pursuant to the
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0019| Interstate Bank Branching Act, and an out-of-state bank resulting from
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0020| the transaction may maintain and operate as branches in New Mexico the
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0021| former New Mexico banks that participated in the transaction if the
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0022| conditions and filing requirements of that act are met.
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0023| B. Except as otherwise expressly provided in this
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0024| subsection, an interstate merger transaction is not permitted pursuant
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0025| to the Interstate Bank Branching Act if, upon effecting the transaction,
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0001| the resulting bank, including all insured depository institutions that
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0002| would be affiliates, as defined in 12 U.S.C.A. Section 1841(k), of the
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0003| resulting bank, would result in an undue concentration of deposits
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0004| totaling forty percent or more of the total deposits in all depository
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0005| institutions in New Mexico. The director may by regulation adopt a
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0006| procedure to waive the foregoing prohibition to prevent the insolvency
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0007| or closing of a New Mexico state bank.
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0008| C. An interstate merger transaction resulting in the
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0009| acquisition by an out-of-state bank of a New Mexico bank is not
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0010| permitted pursuant to the Interstate Bank Branching Act, unless the New
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0011| Mexico bank on the date of the acquisition has been in continuous
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0012| operation under an active charter for a period of at least five years.
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0013| Section 19. DE NOVO BRANCHING AND ACQUISITION OF INDIVIDUAL
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0014| BRANCHES NOT PERMITTED.--Interstate branching, either de novo or by
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0015| acquisition of one or more branches, not involving all or substantially
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0016| all of the assets and branches of a New Mexico bank is prohibited.
|
0017| Section 20. NOTICE AND FILING REQUIREMENTS.--An out-of-state bank
|
0018| that will be the resulting bank pursuant to an interstate merger
|
0019| transaction involving a New Mexico state bank shall notify the director
|
0020| of the proposed merger no later than the date on which it files an
|
0021| application for an interstate merger transaction with the responsible
|
0022| federal bank supervisory agency. The out-of-state bank shall submit a
|
0023| copy of that application to the director and pay a fee in an amount that
|
0024| the director shall prescribe by regulation. Any New Mexico state bank
|
0025| that is a party to the interstate merger transaction shall comply with
|
0001| all applicable state and federal laws.
|
0002| Section 21. CONDITION FOR INTERSTATE MERGER PRIOR TO JUNE 1,
|
0003| 1997.--An interstate merger transaction prior to June 1, 1997 resulting
|
0004| in a New Mexico branch of an out-of-state bank shall not be consummated
|
0005| and any out-of-state bank resulting from such a merger shall not operate
|
0006| a branch in New Mexico, unless the director first:
|
0007| A. finds that the laws of the home state of each
|
0008| out-of-state bank involved in the interstate merger transaction permit
|
0009| New Mexico state banks, under substantially the same terms and
|
0010| conditions as are set forth in the Interstate Bank Branching Act, to
|
0011| acquire banks and establish and maintain branches in that state by means
|
0012| of interstate merger transactions;
|
0013| B. concludes that the resulting out-of-state bank has
|
0014| complied with all applicable requirements of New Mexico law and has
|
0015| agreed in writing to comply with the laws of this state applicable to
|
0016| its operation of branches in New Mexico; and
|
0017| C. certifies to the federal bank supervisory agency having
|
0018| authority to approve the interstate merger transaction that the
|
0019| conditions and requirements of the Interstate Bank Branching Act have
|
0020| been met.
|
0021| Section 22. POWERS--ADDITIONAL BRANCHES.--
|
0022| A. An out-of-state state bank with branches in New Mexico
|
0023| authorized pursuant to the Interstate Bank Branching Act may conduct any
|
0024| activities at its branches that are authorized pursuant to the laws of
|
0025| this state for New Mexico state banks.
|
0001| B. A New Mexico state bank may conduct any activities at any
|
0002| branch outside New Mexico that are permissible for a bank chartered by
|
0003| the host state where the branch is located.
|
0004| C. An out-of-state bank that has acquired branches in New
|
0005| Mexico under the Interstate Bank Branching Act may establish or acquire
|
0006| additional branches in New Mexico to the same extent that any New Mexico
|
0007| bank may establish or acquire a branch in New Mexico pursuant to
|
0008| applicable federal and state law.
|
0009| Section 23. EXAMINATIONS--PERIODIC REPORTS--COOPERATIVE
|
0010| AGREEMENTS--ASSESSMENT OF FEES.--
|
0011| A. To the extent consistent with Subsection C of this
|
0012| section, the director may make examinations of any branch established
|
0013| and maintained in this state by an out-of-state state bank pursuant to
|
0014| the Interstate Bank Branching Act as the director deems necessary to
|
0015| determine whether the branch is being operated in compliance with the
|
0016| laws of this state and in accordance with safe and sound banking
|
0017| practices. The provisions of Section 58-1-46 NMSA 1978 shall apply to
|
0018| the examinations.
|
0019| B. The director may prescribe requirements for periodic
|
0020| reports concerning an out-of-state bank that operates a branch in New
|
0021| Mexico pursuant to the Interstate Bank Branching Act. The required
|
0022| reports shall be provided by the bank or by the bank supervisory agency
|
0023| having primary responsibility for the bank. Reporting requirements
|
0024| prescribed by the director pursuant to this subsection shall be:
|
0025| (1) consistent with the reporting requirements
|
0001| applicable to New Mexico state banks; and
|
0002| (2) appropriate for the purpose of enabling the
|
0003| director to carry out his responsibilities under the Interstate Bank
|
0004| Branching Act.
|
0005| C. The director may enter into cooperative, coordinating and
|
0006| information-sharing agreements with any other bank supervisory agencies
|
0007| or any organization affiliated with or representing one or more bank
|
0008| supervisory agencies with respect to the periodic examination or other
|
0009| supervision of any branch in New Mexico of an out-of-state state bank,
|
0010| or any branch of a New Mexico state bank in any host state, and the
|
0011| director may accept the parties' reports of examination and reports of
|
0012| investigation in lieu of conducting his own examinations or
|
0013| investigations.
|
0014| D. The director may enter into a sole source contract
|
0015| pursuant to Section 13-1-126 NMSA 1978 with a bank supervisory agency
|
0016| having concurrent jurisdiction over a New Mexico state bank or an
|
0017| out-of-state state bank operating branches in this state pursuant to the
|
0018| Interstate Bank Branching Act to engage the services of the agency's
|
0019| examiners or to provide the services of the director's examiners to the
|
0020| agency.
|
0021| E. The director may conduct joint examinations or
|
0022| participate in joint enforcement actions with a bank supervisory agency
|
0023| having concurrent jurisdiction over any branch in New Mexico of an
|
0024| out-of-state state bank or any branch of a New Mexico state bank in any
|
0025| host state. The director may take the actions independently if the
|
0001| director deems the actions necessary or appropriate to carry out his
|
0002| responsibilities under the Interstate Bank Branching Act or to ensure
|
0003| compliance with the laws of this state, but, in the case of an
|
0004| out-of-state state bank, the director shall recognize the exclusive
|
0005| authority of the home state regulator over corporate governance matters
|
0006| and the primary responsibility of the home state regulator with respect
|
0007| to safety and soundness matters.
|
0008| F. An out-of-state state bank that maintains branches in
|
0009| this state may be assessed and shall pay supervisory and examination
|
0010| fees in accordance with the laws of this state and regulations of the
|
0011| director. The fees may be shared with other bank supervisory agencies
|
0012| or any organization affiliated with or representing one or more bank
|
0013| supervisory agencies in accordance with agreements between those
|
0014| entities and the director.
|
0015| Section 24. ENFORCEMENT.--If the director determines that a
|
0016| branch maintained by an out-of-state state bank in this state is being
|
0017| operated in violation of the laws of this state, is not reasonably
|
0018| meeting the credit needs of the community served or is being operated in
|
0019| an unsafe and unsound manner, the director may take the same enforcement
|
0020| actions he could take if the branch were a New Mexico state bank. The
|
0021| director shall give notice promptly to the home state regulator of an
|
0022| enforcement action taken against an out-of-state state bank and, to the
|
0023| extent practicable, shall consult and cooperate with the home state
|
0024| regulator in pursuing and resolving the enforcement action.
|
0025| Section 25. REGULATIONS.--The director may adopt regulations
|
0001| necessary or appropriate to implement the provisions of the Interstate
|
0002| Bank Branching Act.
|
0003| Section 26. NOTICE OF SUBSEQUENT MERGER AND OTHER
|
0004| TRANSACTIONS.--An out-of-state state bank that has established and
|
0005| maintains a branch in this state pursuant to the Interstate Bank
|
0006| Branching Act shall give at least thirty days prior written notice or,
|
0007| in the case of an emergency transaction, shorter notice consistent with
|
0008| applicable state or federal law to the director of any merger,
|
0009| consolidation or other transaction that would cause a change of control
|
0010| with respect to the bank or any bank holding company that controls the
|
0011| bank if the result of the transaction would require an application to be
|
0012| filed pursuant to the federal Change in Bank Control Act of 1978, 12
|
0013| U.S.C.A. Section 1817(j) or the federal Bank Holding Company Act of
|
0014| 1956, 12 U.S.C.A. Section 1841 et seq.
|
0015| Section 27. SEVERABILITY.--If any part or application of the
|
0016| Interstate Bank Branching Act is held invalid or to be superseded, the
|
0017| remainder or its application to other situations or persons shall not be
|
0018| affected.
|
0019| Section 28. Section 58-16-1 NMSA 1978 (being Laws 1990, Chapter
|
0020| 123, Section 1) is amended to read:
|
0021| "58-16-1. SHORT TITLE.--Chapter 58, Article 16 NMSA 1978 may be
|
0022| cited as the "Remote Financial Service Unit Act"."
|
0023| Section 29. Section 58-16-3 NMSA 1978 (being Laws 1990, Chapter
|
0024| 123, Section 3, as amended) is amended to read:
|
0025| "58-16-3. DEFINITIONS.--
|
0001| A. As used in the Remote Financial Service Unit Act:
|
0002| (1) "account" means an account maintained by a
|
0003| cardholder or merchant with a financial institution, which term shall
|
0004| include demand deposit, checking, negotiable order of withdrawal (NOW)
|
0005| share, share draft or other consumer or asset accounts or pre-authorized
|
0006| credit card accounts;
|
0007| (2) "account transfer" means a transaction that
|
0008| enables movement of funds by a cardholder from one account to another
|
0009| account within the same financial institution;
|
0010| (3) "acquirer" means the intercept processor that
|
0011| acquires financial data relating to a transaction from a card acceptor
|
0012| or a merchant and puts the data into a network system and means "agent
|
0013| acquirer" unless specifically indicated otherwise;
|
0014| (4) "agent acquirer" means any financial institution
|
0015| acting as an authorized agent of the acquirer in enabling financial data
|
0016| relating to a POS transaction to be acquired by the acquirer from a card
|
0017| acceptor or merchant and means "acquirer" unless specifically indicated
|
0018| otherwise;
|
0019| (5) "ATM transaction" means any one or more of the
|
0020| following transactions undertaken at an automated teller machine (ATM):
|
0021| (a) a cash advance from an account;
|
0022| (b) a cash advance from an authorized line of
|
0023| credit;
|
0024| (c) a deposit to an account;
|
0025| (d) a balance inquiry;
|
0001| (e) an account transfer; and
|
0002| (f) a normal financial transaction for a
|
0003| cardholder involving the issuance of non-cash or cash-equivalent items;
|
0004| provided, however, that normal financial transactions at an ATM will
|
0005| expressly exclude any POS transaction;
|
0006| (6) "authorization" means the issuance of approval, by
|
0007| or on behalf of the financial institution holding the cardholder's
|
0008| account, to complete a transaction initiated or authorized by the
|
0009| cardholder;
|
0010| (7) "automated teller machine" or "ATM" means an
|
0011| unmanned device that is activated by the cardholder through a specially
|
0012| prepared card or by the transmission of a code via a keyboard or keyset
|
0013| or both and is capable of one or more of the following transactions:
|
0014| (a) dispensing cash to any cardholder from an
|
0015| account or against a preauthorized line of credit;
|
0016| (b) accepting deposits;
|
0017| (c) account transfers;
|
0018| (d) satisfying a balance inquiry in the
|
0019| cardholder's account or accounts; and
|
0020| (e) conducting normal financial transactions
|
0021| involving the issuance of non-cash or cash-equivalent items; provided,
|
0022| however, that normal financial transactions at an ATM will expressly
|
0023| exclude a transaction that can only be initiated and completed at a POS
|
0024| terminal;
|
0025| (8) "balance inquiry" means a transaction that permits
|
0001| a cardholder to obtain the current balance of the cardholder's account
|
0002| or accounts;
|
0003| (9) "card" means a plastic card or other instrument or
|
0004| any other access device issued by a financial institution to a
|
0005| cardholder that enables the cardholder to have access to and that
|
0006| processes transactions against one or more accounts, and the term shall
|
0007| be used when referring either to an ATM access card, a debit card or a
|
0008| credit card identifying a cardholder who has established a pre-approved
|
0009| credit line with the issuer of the credit card;
|
0010| (10) "card acceptor" means the party accepting the
|
0011| card and presenting transaction data to an acquirer;
|
0012| (11) "cardholder" means a person to whom a card has
|
0013| been issued by a financial institution or who is authorized to use the
|
0014| card;
|
0015| (12) "cash advance" means any transaction resulting in
|
0016| a cardholder receiving cash, whether initiated through an ATM or a POS
|
0017| terminal;
|
0018| (13) "chargeback" means the credit of all or a portion
|
0019| of an amount previously posted to a cardholder's account;
|
0020| (14) "clearing account" means an account or several
|
0021| accounts maintained for the purpose of settlement and payment of fees to
|
0022| the network manager;
|
0023| (15) "credit" means a claim for funds by the
|
0024| cardholder for the credit of the cardholder's account and provides
|
0025| details of funds acknowledged as payable by the acquirer or card
|
0001| acceptor to the issuer for credit to the cardholder's account;
|
0002| (16) "credit card cash advance" means a cash loan
|
0003| obtained by a cardholder against a pre-authorized line of credit through
|
0004| presentation of a card;
|
0005| (17) "data interchange" means the exchange of
|
0006| transaction data, authorization requests, transaction records or other
|
0007| data between intercept processors and acquirers and issuers through a
|
0008| shared system or network;
|
0009| (18) "debit" means a transaction initiated by a
|
0010| cardholder that results in the debit to the cardholder's account,
|
0011| through use of a card or otherwise, and results in a claim for funds
|
0012| made by the acquirer or card acceptor against the issuer;
|
0013| (19) "director" means the director of the financial
|
0014| institutions division of the regulation and licensing department;
|
0015| (20) "electronic funds transfer" or "EFT" means a
|
0016| system designed to facilitate the exchange of monetary value via
|
0017| electronic media utilizing electronic or mechanical signals or impulses
|
0018| or a combination of electronic or mechanical impulses and audio, radio
|
0019| or microwave transmissions;
|
0020| (21) "financial institution" means an insured state or
|
0021| national bank, a state or federal savings and loan association or
|
0022| savings bank, a state or federal credit union or authorized branches of
|
0023| each of the foregoing;
|
0024| (22) "in-state financial institutions" means a
|
0025| financial institution authorized to engage in and engaged in business in
|
0001| New Mexico and having its main office or a staffed branch within the
|
0002| state;
|
0003| (23) "intercept processor" means any electronic data
|
0004| processor operating for a financial institution that passes
|
0005| transactions;
|
0006| (24) "issuer" means a financial institution that
|
0007| issues cards or accepts transactions for a card, is the acceptor of a
|
0008| transaction and is typically, but not always, the entity that maintains
|
0009| the account relationship with the cardholder;
|
0010| (25) "lobby or teller-line ATM" means any ATM located
|
0011| within the lobby of a financial institution or in its teller line,
|
0012| access to which is available only during regular banking hours;
|
0013| (26) "merchant" means a seller of goods or services,
|
0014| retailer or other person who, pursuant to an agreement with a financial
|
0015| institution, agrees to accept or causes its outlets to accept cards for
|
0016| EFT transactions when properly presented, is usually a card acceptor and
|
0017| is a seller of goods and services who is regularly and principally
|
0018| engaged in the business of selling, leasing or renting goods, selling or
|
0019| leasing services for any purpose or selling insurance, whether the
|
0020| business is a wholesale or retail business and whether the goods or
|
0021| services are for business, agricultural, personal, family or household
|
0022| purposes. "Merchant" includes a professional licensed by the state of
|
0023| New Mexico, but does not include financial institutions;
|
0024| (27) "modem" is a contraction of
|
0025| "modulator-demodulator" and means a functional unit that enables digital
|
0001| data to be transmitted over analog transmission facilities such as
|
0002| telephone lines, radio or microwave transmissions;
|
0003| (28) "network" means a computer-operated system of
|
0004| transmitting items and messages between ATM or POS terminals, intercept
|
0005| processor and financial institutions, and settling transactions between
|
0006| financial institutions, and includes without limitation, ATMs, POS
|
0007| terminals, all related computer hardware and software, modems, logos and
|
0008| service marks;
|
0009| (29) "network manager" means the person managing the
|
0010| business of a network;
|
0011| (30) "off-line" means not on-line;
|
0012| (31) "off-premise ATM" means ATMs installed away from
|
0013| the building or lobby of a financial institution by a distance of not
|
0014| less than five hundred feet;
|
0015| (32) "on-line" means a system in which all input data
|
0016| enters the computer at a financial institution, an intercept processor
|
0017| or the network from its point of origin and that is capable of
|
0018| transmitting information back to the point of origin after all input
|
0019| data is processed;
|
0020| (33) "on-premise ATM" means an ATM that stands in or
|
0021| immediately adjacent to the financial institution's building, such as in
|
0022| the financial institution's lobby, through the wall or a drive-up ATM
|
0023| within five hundred feet of the financial institution's building;
|
0024| (34) "person" means an individual, partnership, joint
|
0025| venture, corporation or other legal entity however organized;
|
0001| (35) "personal identification number" or "PIN" means a
|
0002| series of numbers or letters selected for or by the cardholder and used
|
0003| by the cardholder as a code or password in conjunction with a card to
|
0004| perform a transaction;
|
0005| (36) "point-of-sale or POS terminal" means an
|
0006| information processing device or machine, located upon the premises
|
0007| occupied by one or more merchants, through which transaction messages
|
0008| are initiated and electronically transmitted to an acquirer to
|
0009| effectuate a POS transaction and that accepts debit cards and credit
|
0010| cards;
|
0011| (37) "POS transaction" means any of the following
|
0012| transactions undertaken at a POS terminal:
|
0013| (a) purchases;
|
0014| (b) purchases that include cash back to the
|
0015| cardholder;
|
0016| (c) cash advances at POS terminals;
|
0017| (d) returned item transaction message resulting
|
0018| in a credit to the cardholder's account;
|
0019| (e) a credit;
|
0020| (f) an authorization;
|
0021| (g) chargebacks at POS terminals;
|
0022| (h) card verification whereby the validity of a
|
0023| card is determined at POS terminals;
|
0024| (i) balance inquiries at POS terminals; and
|
0025| (j) force post financial advice at POS terminals
|
0001| whereby any other transaction authorized by an issuer-approved stand-in
|
0002| processor requires settlement resulting in a debit to the cardholder's
|
0003| account.
|
0004| Nothing in this paragraph shall be construed to include credit
|
0005| card transactions;
|
0006| (38) "purchase" means a transaction that, if approved,
|
0007| results in a debit transaction for the payment of goods and services or
|
0008| may include cash paid to the cardholder of some part of the amount of
|
0009| the transaction;
|
0010| (39) "receipt" means a hard-copy description of a
|
0011| transaction:
|
0012| (a) for the purposes of the Remote Financial
|
0013| Service Unit Act, if the transaction is an ATM transaction, the receipt
|
0014| shall contain, at a minimum: 1) the date of the ATM transaction;
|
0015| 2) the amount of the ATM transaction, if any; 3) the account number;
|
0016| 4) the type of account accessed; 5) the location of the ATM used in
|
0017| the ATM transaction; 6) the identity of any party or account to which
|
0018| funds are transferred; and 7) the type of ATM transaction completed;
|
0019| and
|
0020| (b) for the purposes of the Remote Financial
|
0021| Service Unit Act, if the transaction is a POS transaction, the receipt
|
0022| shall contain, at a minimum: 1) the date of the POS transaction;
|
0023| 2) the amount of the POS transaction, if any; 3) the account number;
|
0024| 4) the type of account accessed; 5) the merchant's name and location;
|
0025| and 6) the type of POS transaction completed;
|
0001| (40) "remote financial service unit" means a POS
|
0002| terminal or an ATM;
|
0003| (41) "returned item transaction message" means a credit
|
0004| message generated by the acquirer or by the merchant that returns the
|
0005| value of the returned item to the cardholder's account;
|
0006| (42) "settlement" means the process by which funds are
|
0007| transferred between financial institutions, intercept processors or
|
0008| networks in the flow of a transaction or in the payment of fees
|
0009| associated with the transaction;
|
0010| (43) "shared ATM or POS terminals" means ATM or POS
|
0011| terminals that are shared among financial institutions by formal
|
0012| agreement for the purposes of cardholder convenience, reduction of
|
0013| capital investment and marketing advantage;
|
0014| (44) "single subscriber terminal" means any terminal
|
0015| or set of terminals used to connect a single customer of a financial
|
0016| institution to its financial institution through which EFT messages are
|
0017| sent and completed, other than transactions;
|
0018| (45) "switch" means a routing mechanism and any device
|
0019| attached thereto that is necessary for the processing of a transaction
|
0020| used to communicate information and transactions among participating
|
0021| financial institutions or their intercept processors in a shared system
|
0022| or network;
|
0023| (46) "transaction" means a collection of electronic
|
0024| messages concluded by:
|
0025| (a) a debit to or a credit from an account;
|
0001| (b) a balance inquiry;
|
0002| (c) the consummation of a normal financial
|
0003| transaction; or
|
0004| (d) a rejected attempt of any one of those
|
0005| matters provided in Subparagraphs (a) through (c) of this paragraph;
|
0006| (47) "unauthorized use of the card of another" means
|
0007| the utilization of the card in or through a remote financial service
|
0008| unit to affect the balance of or obtain information concerning the
|
0009| account of the cardholder by a person other than the cardholder, which
|
0010| person does not have the permission of the cardholder for such use; and
|
0011| (48) "unauthorized withdrawal from the account of
|
0012| another" means the debiting of or removal of funds from a cardholder's
|
0013| account, accomplished by means of the utilization of a remote financial
|
0014| service unit by a person other than the cardholder, which person does
|
0015| not have actual, implied or apparent authority for the debiting or
|
0016| removal and from which debiting or removal the cardholder receives no
|
0017| benefit.
|
0018| B.
|
0019| (1) Any of the information provided pursuant to
|
0020| Subparagraphs (a) and (b) of Paragraph (39) of Subsection A of this
|
0021| section may be provided using codes, numbers or other uniform
|
0022| explanations so long as they are explained elsewhere on the receipt.
|
0023| (2) No receipt shall be required in any transaction
|
0024| involving a negotiable instrument that will itself become a receipt.
|
0025| C. Any term used in the Remote Financial Service Unit Act
|
0001| but not specifically defined shall have the meaning given to that term
|
0002| by the Uniform Commercial Code."
|
0003| Section 30. Section 58-16-11 NMSA 1978 (being Laws 1990, Chapter
|
0004| 123, Section 11, as amended) is amended to read:
|
0005| "58-16-11. RESTRICTIONS ON OWNING, LEASING AND OPERATING.--
|
0006| A. Notwithstanding any provision to the contrary in the
|
0007| Remote Financial Service Unit Act, no ATM shall be owned or leased by a
|
0008| person other than an in-state financial institution.
|
0009| B. Notwithstanding any provision to the contrary in the
|
0010| Remote Financial Service Unit Act, no POS terminal shall be operated by
|
0011| any person other than a merchant or an in-state financial institution."
|
0012| Section 31. EFFECTIVE DATE.--The effective date of the provisions
|
0013| of this act is June 1, 1996.
|
0014|
|
0015| HB
|
0016| 38
|
0017| Page
|