[Federal Register Volume 77, Number 142 (Tuesday, July 24, 2012)]
[Rules and Regulations]
[Pages 43151-43155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17860]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 362

RIN 3064-AD88


Permissible Investments for Federal and State Savings 
Associations: Corporate Debt Securities

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Final rule.

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SUMMARY: This final rule amends FDIC regulations to prohibit any 
insured savings association from acquiring or retaining a corporate 
debt security unless it determines, prior to acquiring such security 
and periodically thereafter, that the issuer has adequate capacity to 
meet all financial commitments under the security for the projected 
life of the investment. An issuer would satisfy this requirement if, 
based on the assessment of the savings association, the issuer presents 
a low risk of default and is likely to make full and timely repayment 
of principal and interest.
    This final rule adopts the proposed creditworthiness standard with 
the clarifying revision described below. In the final rule, the phrase 
``projected life of the investment'' has been revised to ``projected 
life of the security'' to more closely track the language in the Office 
of the Comptroller of the Currency's (``OCC'') final rule.\1\ The 
clarifying revision addresses ambiguities in the proposed rule and 
harmonizes the final rule with the final rule adopted by the OCC 
regarding permissible investments for national banks.\2\
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    \1\ 77 FR 35253. (June 13, 2012).
    \2\ Id. at 35257.

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DATES: Effective Date: The final rule is effective on July 21, 2012.

FOR FURTHER INFORMATION CONTACT: Kyle Hadley, Chief, Examination 
Support Section, (202) 898-6532, Division of Risk Management 
Supervision; Eric Reither, Capital Markets Specialist, (202) 898-3707, 
Division of Risk

[[Page 43152]]

Management Supervision; Suzanne Dawley, Senior Attorney, Bank 
Activities Section, (202) 898-6509; or Rachel Jones, Attorney, Bank 
Activities Section, (202) 898-6858.

SUPPLEMENTARY INFORMATION: 

I. Background

    Under section 28(d) (``Section 28(d)'') of the Federal Deposit 
Insurance Act (``FDI Act''), federal and state savings associations 
generally are prohibited from acquiring or retaining, either directly 
or through a subsidiary, a corporate debt security that is rated below 
investment grade. Section 939(a) (``Section 939(a)'') of the Dodd-Frank 
Wall Street Reform and Consumer Protection Act (``Dodd-Frank Act'') 
amends Section 28(d) by replacing the investment-grade standard with a 
requirement that any corporate debt security investment held by a 
savings association must satisfy standards of creditworthiness 
established by the FDIC. This amendment is effective for all savings 
associations on July 21, 2012.
    On December 15, 2011, the FDIC issued a notice of proposed 
rulemaking (``NPR'' or ``Proposed Rule''), seeking comment on a 
proposal to amend the FDIC's regulations in accordance with the 
requirements of Section 28(d). Specifically, the proposed rule would 
amend 12 CFR Part 362 to prohibit any insured savings association from 
acquiring or retaining a corporate debt security unless it determines, 
prior to acquiring such security and periodically thereafter, that the 
issuer has adequate capacity to meet all financial commitments under 
the security for the projected life of the investment. An issuer would 
satisfy this requirement if, based on the assessment of the savings 
association, the issuer presents a low risk of default and is likely to 
make full and timely repayment of principal and interest.
    This final rule adopts the proposed creditworthiness standard with 
the clarifying revision described below. In the final rule, the phrase 
``projected life of the investment'' has been revised to ``projected 
life of the security'' to more closely track the language in the Office 
of the Comptroller of the Currency's (``OCC'') final rule.\3\ The 
clarifying revision addresses ambiguities in the proposed rule and 
harmonizes the final rule with the final rule adopted by the OCC 
regarding permissible investments for national banks.\4\
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    \3\ 77 F.R. 35253. (June 13, 2012).
    \4\ Id. at 35257.
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    Section 553(d)(3) of the Administrative Procedure Act (``APA'') 
provides that, for good cause found and published with the rule, an 
agency does not have to comply with the requirement that a substantive 
rule be published not less than 30 days before its effective date. The 
final rule will be effective on July 21, 2012. Consequently, the final 
rule's publication will be less than 30 days before its effective date. 
The FDIC invokes this good cause exception to the 30 day publication 
requirement because the statutory amendment \5\ that this rule 
implements is effective on July 21, 2012. On that date savings 
associations will be prohibited from acquiring or retaining a corporate 
debt security that does not meet the creditworthiness standard 
established by the FDIC. As a result, until the FDIC establishes that 
standard, savings associations would not be able to comply with the 
statute. However, in order to allow saving associations sufficient time 
to fully develop their processes for making creditworthiness 
determinations, the FDIC is allowing institutions until January 1, 2013 
to comply with this final rule.
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    \5\ Section 939(a) of the Dodd Frank Wall Street Reform and 
Consumer Protection Act.
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    Under Section 28(d)(1) of the FDI Act, federal and state savings 
associations generally are prohibited from acquiring or retaining, 
either directly or through a subsidiary, a corporate debt security that 
is not ``of investment grade.'' \6\ Section 28(d)(4) defines investment 
grade as follows: ``Any corporate debt security is not of `investment 
grade' unless that security, when acquired by the savings association 
or subsidiary, was rated in one of the four highest ratings categories 
by at least one nationally recognized statistical rating organization'' 
(each, an ``NRSRO'').\7\
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    \6\ Section 28(d)(1) of the FDI Act, 12 U.S.C. 1831e(d)(1). 
Under Section 28(d)(2), the investment-grade requirement does not 
apply to a corporate debt security acquired or retained by a 
``qualified affiliate'' of a savings association, defined as, (i) in 
the case of a stock savings association, an affiliate other than a 
subsidiary or an insured depository institution; and (ii) in the 
case of a mutual savings association, a subsidiary other than an 
insured depository institution, so long as all of the savings 
association's investments in and extensions of credit to the 
subsidiary are deducted from the capital of the savings association.
    \7\ 12 U.S.C. 1831e(d)(4).
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    Consistent with the requirements of Section 28(d), section 
362.11(b)(1) of the FDIC's regulations generally prohibits a state 
savings association from acquiring or retaining a corporate debt 
security that is not of investment grade.\8\ Under 12 CFR 362.10(b), 
the term ``corporate debt securities that are not of investment grade'' 
is defined, in a manner consistent with Section 28(d), as, ``any 
corporate security that when acquired was not rated among the four 
highest rating categories by at least one nationally recognized 
statistical rating organization.'' \9\
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    \8\ 12 CFR 362.11(b).
    \9\ Id. at 362.10(b). Under section 28(d)(4)(C) of the FDI Act, 
however, this term does not include any obligation issued or 
guaranteed by a corporation that may be held by a federal savings 
association without limitation as a percentage of assets under 
section 5(c)(1)(D), (E), or (F) of the Home Owners Loan Act 
(``HOLA'').
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    The FDIC currently may require a state savings association to take 
corrective measures in the event a corporate debt security experiences 
a downgrade (to non-investment grade status) following acquisition. For 
example, a savings association may be required to reduce the level of 
non-investment grade corporate debt security investments as a 
percentage of tier 1 or total capital, write-down the value of the 
security to reflect an impairment, or divest the security. The FDIC 
addresses nonconforming investments on a case-by-case basis through the 
examination process, and in view of the risk profile of the savings 
association and size and composition of its investment portfolio.
    Section 939(a)(2) of the Dodd-Frank Act amends Section 28(d) by (a) 
removing references to NRSRO credit ratings, including the investment-
grade standard under paragraph (1) and the definition of ``investment 
grade'' under paragraph (4); and (b) inserting in paragraph (1) a 
reference to ``standards of creditworthiness established by the 
[FDIC]''. Section 939(a) is effective on July 21, 2012, and, therefore, 
as of this date federal and state savings associations will be 
permitted to invest only in corporate debt securities that satisfy 
creditworthiness standards established by the FDIC.\10\
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    \10\ See section 939(g) of the Dodd-Frank Act.
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    On December 15, 2011, the FDIC issued the Proposed Rule to seek 
comment on a proposal to amend the FDIC's regulations in accordance 
with the requirements of Section 28(d). Specifically, the NPR proposed 
to amend 12 CFR part 362 to prohibit any insured savings association 
from acquiring or retaining a corporate debt security unless it 
determines, prior to acquiring such security and periodically 
thereafter, that the issuer has adequate capacity to meet all financial 
commitments under the security for the projected life of the 
investment. For purposes of the NPR, an issuer would satisfy this 
requirement if, based on the assessment of the savings association, the 
issuer presents a low risk of default and is likely to make full and 
timely repayment of principal and interest. In addition, on December 
15, 2011, the FDIC proposed guidance to assist

[[Page 43153]]

savings associations in meeting due diligence requirements in assessing 
credit risk for portfolio investments.
    The FDIC received five comments on the proposed rule and guidance 
document from bank trade groups, a bank, and an individual. The 
commenters generally supported the NPR and stated that it presented a 
workable alternative to the use of credit ratings. The commenters also 
raised specific issues, which are addressed in more detail below.
    After considering the comments, the FDIC has decided to finalize 
the proposed creditworthiness standard, with the clarifying revision 
described below. Additionally, to assist savings associations in making 
these creditworthiness determinations, the FDIC is publishing a final 
guidance document today in this issue of the Federal Register.The final 
guidance document reflects the clarifying revisions in the final rule, 
but otherwise remains unchanged from the proposal.
    The final rule revises the proposed creditworthiness standard to 
address ambiguities in the proposed rule and harmonize the final rule 
with a final rule adopted by the OCC regarding permissible investments 
for national banks.\11\ In the final rule, the phrase ``projected life 
of the investment'' has been revised to ``projected life of the 
security'' to more closely track the language in the OCC's final rule. 
This revision also clarifies that, for purposes of the final rule, 
federal and state savings associations are required to evaluate the 
credit risk of a security through its maturity or projected maturity 
date.
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    \11\ 77 FR 35253, 35257.
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II. Description of the Final Rule

    In accordance with the requirements of Section 939(a), the final 
rule amends sections 362.9 and 362.11(b)(1) of the FDIC's regulations. 
In section 362.11(b)(1), the final rule replaces the investment-grade 
standard, applicable to permissible corporate debt securities 
investments of a state savings association, with a requirement, 
applicable to federal and state savings associations, that prior to 
acquiring a corporate debt security and periodically thereafter, the 
savings association must determine that the issuer has adequate 
capacity to meet all financial commitments under the security for the 
projected life of the security. An issuer satisfies this requirement if 
the savings association appropriately determines that the obligor 
presents low default risk and is likely to make timely payments of 
principal and interest. The FDIC notes that, in addition to the 
requirements of the final rule, any savings association investment in a 
corporate debt security must be consistent with safety and soundness 
principles.
    In determining whether an issuer has an adequate financial capacity 
to satisfy all financial commitments under a security for the projected 
life of the security, the FDIC expects savings associations to consider 
a number of factors commensurate with the risk profile and nature of 
the issuer. Although savings associations are permitted to consider an 
external credit assessment for purposes of such determination, they 
must supplement any external credit assessment with due diligence 
processes and analyses that are appropriate for the size and complexity 
of the security. A security rated in the top four rating categories by 
an NRSRO is not automatically deemed to satisfy the creditworthiness 
standard. The more complex a security's structure, the greater the 
expectations, even when the credit quality is perceived to be very 
high.
    Comments from industry associations expressed concern regarding the 
scope and depth of the proposed due diligence requirements, 
particularly for smaller institutions. The FDIC believes that the 
proposed standard of creditworthiness and associated due diligence 
requirements are consistent with those under the ratings-based standard 
and existing due diligence requirements and guidance. Under the 
existing ratings-based standard set forth in part 362, savings 
associations are expected to avoid sole reliance on a credit rating to 
evaluate the credit risk of a security, and consistently have been 
advised through guidance and other supervisory materials to supplement 
any use of credit ratings with additional research on the credit risk 
of a particular security. Accordingly, the FDIC does not expect the 
final rule to materially change the investment risk-management 
practices of most savings associations or the scope of permissible 
corporate debt securities investments under part 362.
    Also, in today's Federal Register, the FDIC is publishing a final 
guidance document to assist savings associations in determining whether 
a corporate debt security is permissible for investment under part 362, 
and to further explain the FDIC's expectations with regard to 
regulatory due diligence requirements. The final guidance document 
reflects the clarifying revisions in the final rule, but otherwise 
remains unchanged from the proposed guidance document. The final 
guidance document describes the factors savings associations should 
consider in evaluating the creditworthiness of an issuer; particularly 
the issuer's capacity to satisfy all financial commitments under the 
security for the projected life of the security. While the guidance 
explains the FDIC's expectations in more detail, the FDIC's regulations 
require savings associations to understand and evaluate the risks of 
purchasing investment securities. Savings associations should not 
purchase securities for which they do not understand the relevant 
risks.
    The FDIC is not revising its current supervisory practice with 
respect to nonconforming corporate debt securities investments. That 
is, if a security acquired in compliance with the final rule 
experiences credit impairment or other deterioration following its 
acquisition, the FDIC may require a savings association to take 
corrective measures on a case-by-case basis.
    In addition to the revisions described above, the final rule makes 
conforming, technical amendments to section 362.9 of the FDIC's 
regulations to expand the scope of the rule to federal savings 
associations \12\ and reflect the abolishment of the Office of Thrift 
Supervision under section 313 of the Dodd-Frank Act.
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    \12\ Currently, section 362.11(b) applies only to insured state 
savings associations.
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Effective Date

    In the NPR, the FDIC proposed an effective date of July 21, 2012, 
in accordance with the requirements of section 939(a) of the Dodd-Frank 
Act. However, industry commenters expressed concern that savings 
associations would not have sufficient time to develop processes for 
making creditworthiness determinations on new securities purchased 
before the effective date of this final rule. These commenters 
suggested that the FDIC adopt a one-year transition period before the 
FDIC requires compliance with the rule. One commenter also requested an 
additional year beyond the transition period to allow for review of 
existing securities held by the institution. The FDIC recognizes that 
it may take time for some savings associations to develop the systems 
and processes necessary to make creditworthiness determinations under 
the new standard. Therefore, the FDIC is providing a transition period 
until January 1, 2013, to allow savings associations to come into 
compliance with this final rule. However, as proposed, the final rule 
is effective as of July 21, 2012.
    The final rule does not grandfather any corporate debt securities 
acquired

[[Page 43154]]

before the effective date and, therefore, savings associations are 
permitted to retain only those securities for which the savings 
association determines that (as of the effective date and periodically 
thereafter) the issuer has adequate capacity to satisfy all financial 
commitments under the security for the projected life of the security. 
This treatment for previously acquired securities is consistent with 
the requirements of Section 28(d) and the final rule, which prohibit a 
savings association from acquiring or retaining any corporate debt 
security that does not satisfy the creditworthiness standard described 
in this final rule. Accordingly, the final rule seeks to emphasize that 
savings associations must periodically re-evaluate the likelihood of 
repayment for securities retained in their investment portfolios in 
view of any changes in economic conditions that may affect a security's 
credit risk. Savings associations will still have until the end of the 
transition period, January 1, 2013, to evaluate their existing holdings 
and ensure that they meet the revised standard.

III. Implementation Guidance

    Together with this final rule, the FDIC is publishing guidance for 
savings associations' investment activities. This final guidance 
document reflects the FDIC's expectations for savings associations as 
they review their systems and consider any changes necessary to comply 
with the provisions for assessing credit risk in this final rule. The 
guidance describes factors institutions should consider with respect to 
certain types of investment securities to assess creditworthiness and 
to continue conducting their activities in a safe and sound manner.
    As noted above, FDIC regulations require that savings associations 
conduct their investment activities in a manner that is consistent with 
safe and sound practices. Neither the final rules, nor the final 
guidance document, change this requirement. The FDIC expects savings 
associations to continue to follow safe and sound practices in their 
investment activities.

IV. Regulatory Analyses

A. Administrative Procedure Act (APA)

    Section 553(d)(3) of the APA (5 U.S.C. 500 et seq.) provides that, 
for good cause found and published with the rule, an agency does not 
have to comply with the requirement that a substantive rule be 
published not less than 30 days before its effective date. The final 
rule will be effective on July 21, 2012. Consequently, the final rule's 
publication will be less than 30 days before its effective date. The 
FDIC invokes this good cause exception to the 30 day publication 
requirement because the statutory amendment \13\ that this rule 
implements is effective on July 21, 2012. On that date savings 
associations will be prohibited from acquiring or retaining a corporate 
debt security that does not meet the creditworthiness standard 
established by the FDIC. As a result, until the FDIC establishes that 
standard, savings associations would not be able to comply with the 
statute. However, in order to allow saving associations sufficient time 
to fully develop their processes for making creditworthiness 
determinations, the FDIC is allowing institutions until January 1, 2013 
to comply with this final rule.
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    \13\ Section 939(a) of the Dodd Frank Wall Street Reform and 
Consumer Protection Act.
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B. Paperwork Reduction Act (PRA)

    No new collection of information pursuant to the PRA (44 U.S.C. 
3501 et seq.) is contained in this final rule.

C. Regulatory Flexibility Act Analysis

    Pursuant to section 605(b) of the Regulatory Flexibility Act 
(RFA),\14\ the regulatory flexibility analysis otherwise required under 
section 604 of the RFA is not required if an agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities (defined for purposes of the RFA to include 
banks with assets less than or equal to $175 million) \15\ and 
publishes its certification and a short, explanatory statement in the 
Federal Register along with its rule. For the reasons provided below, 
the FDIC certifies that the Final Rule does not have a significant 
economic impact on a substantial number of small entities. Accordingly, 
a regulatory flexibility analysis is not required.
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    \14\ 5 U.S.C. 605(b).
    \15\ 5 U.S.C. 601 et seq.
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    As discussed in this Final Rule, Section 28(d) of the FDI Act, as 
amended by Section 939(a) of the Dodd-Frank Act, prohibits federal and 
state savings associations from acquiring or retaining a corporate debt 
security that does not meet FDIC's standards of creditworthiness. In 
accordance with the requirements of amended Section 28(d), this final 
rule prohibits savings associations from investing in a corporate debt 
security unless the savings association determines that the issuer has 
adequate capacity to meet all financial commitments under the security 
for the projected life of the security. Consequently, this final rule 
only impacts savings associations that hold corporate debt security 
investments.
    In determining whether this final rule has a significant economic 
impact on a substantial number of small savings associations, the FDIC 
reviewed the March 2012 Reports of Condition and Income (Call Report) 
data to evaluate the number of savings associations with corporate debt 
securities. There are 1044 insured state and federal savings 
associations. Of these 1044 insured savings associations, 356 reported 
investments in other domestic debt securities on the Call Report, where 
thrifts report their investment in corporate bonds.\16\ Even assuming 
the entire amount of other domestic debt securities listed on the Call 
Report represents investment in corporate debt securities, other 
domestic debt securities represents only 0.97 percent of the aggregate 
total assets of the 1044 savings associations.
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    \16\ This line item is where the dollar exposure to corporate 
debt securities, along with other forms of investment, should be 
slotted according to the Call Report instructions. This line may 
also include investments in instruments other than corporate debt 
securities, this limited granularity does not permit a precise 
understanding of the exposure to corporate debt securities.
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    Moreover, only savings associations with total assets of $175 
million or less apply for purposes of the RFA analysis. When applying 
this additional size criterion, only 80 institutions list other 
domestic debt securities in their Call Report. For these smaller 
savings institutions, the total amount listed as investment in other 
domestic debt securities represents only 0.45 percent of the total 
assets. And only eight of these smaller thrifts have concentrations in 
other domestic debt securities that exceed 50 percent of their tier 1 
capital. Due to the small investment in corporate debt securities on 
small savings associations' balance sheets and due to the existing need 
to do due diligence relating to any investment in order to assure that 
a savings association is operating in a safe and sound manner, the 
additional compliance burden does not result in a significant economic 
impact on a substantial number of small savings associations.

C. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    The Office of Management and Budget has determined that the Final 
Rule is not a ``major rule'' within the meaning of the relevant 
sections of the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA) (5 U.S.C. 801, et seq.). As required by SBREFA, the FDIC 
will file the appropriate

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reports with Congress and the Government Accountability Office so that 
the final rule may be reviewed.

D. Plain Language

    Each Federal banking agency, such as the FDIC, is required to use 
plain language in all proposed and final rules published after January 
1, 2000. (12 U.S.C. 4809) In addition, in 1998, the President issued a 
memorandum directing each agency in the Executive branch, to use plain 
language for all new proposed and final rulemaking documents issued on 
or after January 1, 1999. The FDIC sought to present the Proposed Rule 
in a simple and straightforward manner. The FDIC received no comments 
on the use of plain language, and the Final Rule is identical to the 
Proposed Rule except for a clarifying revision.

List of Subjects in 12 CFR Part 362

    Administrative practice and procedure, Authority delegations 
(Government agencies), Bank deposit insurance, Banks, Banking, 
Investments, Reporting and recordkeeping requirements.

Authority and Issuance

    For the reasons stated in the preamble, the Federal Deposit 
Insurance Corporation amends part 362 of chapter III of title 12, Code 
of Federal Regulations as follows:

PART 362--ACTIVITIES OF INSURED STATE BANKS AND INSURED SAVINGS 
ASSOCIATIONS

0
1. The authority citation for part 362 continues to read as follows:

    Authority: 12 U.S.C. 1816, 1818, 1819(a) (Tenth), 1828(j), 
1828(m), 1828a, 1831a, 1831e, 1831w, 1843(l).


0
2. Amend Sec.  362.9 by revising paragraph (a) to read as follows:


Sec.  362.9  Purpose and scope.

    (a) This subpart, along with the notice and application procedures 
in subpart H of part 303 of this chapter, implements the provisions of 
section 28(a) of the Federal Deposit Insurance Act (12 U.S.C. 1831e(a)) 
that restrict and prohibit insured state savings associations and their 
service corporations from engaging in activities and investments of a 
type that are not permissible for a Federal savings association and 
their service corporations. This subpart also implements the provision 
of section 28(d) of the Federal Deposit Insurance Act (12 U.S.C. 
1831e(d)) that restricts state and federal savings associations from 
investing in certain corporate debt securities. The phrase ``activity 
permissible for a Federal savings association'' means any activity 
authorized for a Federal savings association under any statute 
including the Home Owners' Loan Act (HOLA) (12 U.S.C. 1464 et seq.), as 
well as activities recognized as permissible for a Federal savings 
association in regulations issued by the Office of the Comptroller of 
the Currency (OCC) or in bulletins, orders or written interpretations 
issued by the OCC, or by the former Office of Thrift Supervision until 
modified, terminated, set aside, or superseded by the OCC.
* * * * *

0
3. Amend Sec.  362.11 by revising the section heading, removing the 
last sentence of paragraph (b)(1), and adding two sentences in its 
place to read as follows:


Sec.  362.11  Activities of insured savings associations.

* * * * *
    (b) * * *
    (1) * * * On and after July 21, 2012, an insured savings 
association directly or through a subsidiary (other than, in the case 
of a mutual savings association, a subsidiary that is a qualified 
affiliate), shall not acquire or retain a corporate debt security 
unless the savings association, prior to acquiring the security and 
periodically thereafter, determines that the issuer of the security has 
adequate capacity to meet all financial commitments under the security 
for the projected life of the security. Saving associations have until 
January 1, 2013 to come into compliance with this treatment of 
corporate debt securities.
* * * * *

    By order of the Board of Directors.

    Dated at Washington, DC, this 18th day of July, 2012.

Federal Deposit Insurance Corporation
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2012-17860 Filed 7-20-12; 11:15 am]
BILLING CODE 6714-01-P