[Federal Register Volume 84, Number 211 (Thursday, October 31, 2019)]
[Proposed Rules]
[Pages 58492-58520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23115]



[[Page 58491]]

Vol. 84

Thursday,

No. 211

October 31, 2019

Part III





Federal Deposit Insurance Corporation





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12 CFR Parts 303, 326, 337, et al.





Removal of Transferred OTS Regulations Regarding Certain Regulations 
for the Operations of State Savings Associations; Proposed Rule

  Federal Register / Vol. 84 , No. 211 / Thursday, October 31, 2019 / 
Proposed Rules  

[[Page 58492]]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 303, 326, 337, 353, 390

RIN 3064-AF14


Removal of Transferred OTS Regulations Regarding Certain 
Regulations for the Operations of State Savings Associations

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this notice of proposed rulemaking (NPR), the Federal 
Deposit Insurance Corporation (FDIC) proposes to rescind and remove 
certain regulations transferred in 2011 to the FDIC from the former 
Office of Thrift Supervision pursuant to the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (the Dodd-Frank Act). In addition to 
the removal of part 390, subpart S, the FDIC proposes to make technical 
changes to other parts of the FDIC's regulations so that they may be 
applicable on their terms to State savings associations. Following the 
removal of the identified regulations, the regulations governing the 
operations of State savings associations will be substantially the same 
as those for all other FDIC-supervised institutions. The FDIC invites 
comments on all aspects of this proposed rulemaking.

DATES: Comments must be received on or before December 2, 2019.

ADDRESSES: You may submit comments by any of the following methods:
     FDIC Website: https://www.fdic.gov/regulations/laws/federal/. Follow instructions for submitting comments on the agency 
website.
     Email: [email protected]. Include RIN 3064-AF14 on the 
subject line of the message.
     Mail: Robert E. Feldman, Executive Secretary, Attention: 
Comments, Federal Deposit Insurance Corporation, 550 17th Street NW, 
Washington, DC 20429.
     Hand Delivery to FDIC: Comments may be hand-delivered to 
the guard station at the rear of the 550 17th Street building (located 
on F Street) on business days between 7 a.m. and 5 p.m.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Please include your name, affiliation, address, email address, and 
telephone number(s) in your comment. All statements received, including 
attachments and other supporting materials, are part of the public 
record and are subject to public disclosure. You should submit only 
information that you wish to make publicly available.

    Please note:  All comments received will be posted generally 
without change to https://www.fdic.gov/regulations/laws/federal/, 
including any personal information provided. Paper copies of public 
comments may be requested from the Public Information Center by 
telephone at 877-275-3342 or 703-562-2200.


FOR FURTHER INFORMATION CONTACT: Karen J. Currie, Senior Examination 
Specialist, 202-898-3981, [email protected], Division of Risk Management 
Supervision; Cassandra Duhaney, Senior Policy Analyst, 202-898-6804, 
Division of Depositor and Consumer Protection; Gregory Feder, Counsel, 
202-898-8724; Suzanne Dawley, Counsel, 202-898-6509; or Linda Hubble 
Ku, Counsel, 202-898-6634, Legal Division.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Dodd-Frank Act

    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(Dodd-Frank Act) \1\ provided for a substantial reorganization of the 
regulation of State and Federal savings associations and their holding 
companies. Beginning July 21, 2011, the transfer date established by 
section 311 of the Dodd-Frank Act,\2\ the powers, duties, and functions 
of the former Office of Thrift Supervision (OTS) were divided among the 
FDIC, as to State savings associations, the Office of the Comptroller 
of the Currency (OCC), as to Federal savings associations, and the 
Board of Governors of the Federal Reserve System (FRB), as to savings 
and loan holding companies. Section 316(b) of the Dodd-Frank Act,\3\ 
provides the manner of treatment for all orders, resolutions, 
determinations, regulations, and advisory materials that had been 
issued, made, prescribed, or allowed to become effective by the OTS.\4\ 
The section provides that if such issuances were in effect on the day 
before the transfer date, they continue in effect and are enforceable 
by or against the appropriate successor agency until they are modified, 
terminated, set aside, or superseded in accordance with applicable law 
by such successor agency, by any court of competent jurisdiction, or by 
operation of law.
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    \1\ Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Public Law 111-203, 124 Stat. 1376 (2010).
    \2\ 12 U.S.C. 5411.
    \3\ 12 U.S.C. 5414(b).
    \4\ 12 U.S.C. 5414(b).
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    The Dodd-Frank Act directed the FDIC and the OCC to consult with 
one another and to publish a list of the continued OTS regulations to 
be enforced by each respective agency. The list was published by the 
FDIC and OCC as a Joint Notice in the Federal Register on July 6, 
2011,\5\ and shortly thereafter, the FDIC published its transferred OTS 
regulations as new FDIC regulations in 12 CFR parts 390 and 391.\6\ 
When it republished the transferred OTS regulations, the FDIC noted 
that its staff would evaluate the transferred OTS regulations and might 
later recommend incorporating the transferred OTS rules into other FDIC 
rules, amending them or rescinding them, as appropriate.
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    \5\ List of Office of Thrift Supervision Regulations to be 
Enforced by the Office of the Comptroller of the Currency and the 
Federal Deposit Insurance Corporation Pursuant to the Dodd-Frank 
Wall Street Reform and Consumer Protection Act, 76 FR 39246 (Jul. 6, 
2011).
    \6\ Transfer and Redesignation of Certain Regulations Involving 
State Savings Associations Pursuant to the Dodd-Frank Wall Street 
Reform and Consumer Protection Act of 2010, 76 FR 47652 (Aug. 5, 
2011).
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    Section 312(b)(2)(C) of the Dodd-Frank Act \7\ amended the 
definition of ``appropriate Federal banking agency'' contained in 
section 3(q) of the Federal Deposit Insurance Act (FDI Act) \8\ to add 
State savings associations to the list of entities for which the FDIC 
is designated as the ``appropriate Federal banking agency.'' As a 
result, when the FDIC acts as the designated ``appropriate Federal 
banking agency'' (or under similar terminology) for State savings 
associations, as it does here, the FDIC is authorized to issue, modify, 
and rescind regulations involving such associations and for State 
nonmember banks and insured branches of foreign banks.
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    \7\ 12 U.S.C. 5412(b)(2)(C).
    \8\ 12 U.S.C. 1813(q).
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B. 12 CFR Part 390, Subpart S

    One of the rules of the former OTS that was transferred to the 
FDIC, 12 CFR part 563, governs many of the operations of State savings 
associations. The former OTS's rule was transferred to the FDIC with 
nominal changes and is now found in the FDIC's rules at part 390, 
subpart S, entitled ``State Savings Associations--Operations.'' \9\ 
Subpart S governs a wide range of operations of State savings 
associations, as further discussed below.\10\
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    \9\ 12 CFR part 390, subpart S.
    \10\ The transferred OTS provision governing the frequency of 
safety and soundness examinations of State savings associations, 12 
CFR 390.351, was rescinded and removed by the final rule that 
amended 12 CFR 337.12 to reflect the authority of the FDIC under 
section 4(a) of HOLA to provide for the examination of safe and 
sound operation of State savings associations. See Expanded 
Examination Cycle for Certain Small Insured Depository Institutions 
and U.S. Branches and Agencies of Foreign Banks, 81 FR 90949 (Dec. 
16, 2016).

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[[Page 58493]]

II. The Proposal

    Section 316(b)(3) of the Dodd-Frank Act in pertinent part, provides 
that the regulations of the former OTS, as they apply to State savings 
associations, will be enforceable by the FDIC until they are modified, 
terminated, set aside, or superseded in accordance with applicable 
law.\11\ Consistent with the FDIC's stated intention to evaluate 
transferred OTS regulations before taking action on them, the FDIC has 
carefully reviewed the provisions of subpart S, and proposes to take 
action as described below with respect to certain sections of this 
subpart.
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    \11\ 12 U.S.C. 5414(b)(3).
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A. Section 390.330--Chartering Documents

    Section 390.330 requires a de novo State savings association, prior 
to commencing operations, to file its charter and bylaws with the FDIC 
for approval. This section also requires a de novo State savings 
association to certify to the FDIC that its charter and bylaws are 
permissible under all applicable laws, rules, and regulations. In 
addition, this section requires each State savings association to make 
available to its accountholders a copy of its charter and bylaws, 
including amendments thereto, in each office or by request.
    Unlike the OCC or state banking supervisors, the FDIC does not 
charter insured depository institutions. Thus, as it does with State 
nonmember banks, the FDIC proposes to defer to state law as to whether 
and how a State savings association should disclose or provide copies 
of its organizational documents to interested parties. Consistent with 
this position, the FDIC proposes to rescind and remove this section of 
Subpart S.

B. Section 390.331--Securities: Statement of Non-Insurance

    Section 390.331 requires that every security issued by a State 
savings association include in its provisions a clear statement that 
the security is not insured by the FDIC. Although the FDIC does not 
have an identical companion rule to Sec.  390.331, provisions of the 
Federal Deposit Insurance Act (the FDI Act), and the FDIC regulations 
clarify (and require FDIC-supervised institutions to clarify) that 
securities are not deposits under the FDI Act and are not insured by 
the FDIC.
    Section 3(l) of the FDI Act defines ``deposit'' for the purposes of 
the FDI Act and does not include any securities, regardless of 
issuer.\12\ The definition of ``insured deposit'' at section 3(m) of 
the FDI Act, also does do not include securities, including those 
issued by a State savings association.\13\
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    \12\ 12 U.S.C. 1813(l).
    \13\ 12 U.S.C. 1813(m).
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    Further, part 328 governs the use of the official sign of the FDIC 
and prescribes its use by insured depository institutions. It also 
provides the official advertising statement that insured depository 
institutions must include in their advertisements. For purposes of part 
328, the term ``insured depository institution'' includes insured 
branches of a foreign depository institution, as well as State savings 
associations. In particular, the advertising of non-deposit products 
(which includes securities) is governed by Sec.  328.3(e). That section 
prohibits an insured depository institution from including the official 
advertising statement, or any other statement or symbol which implies 
or suggests the existence of Federal deposit insurance, in any 
advertisement that relates solely to non-deposit products.
    Because Sec.  390.331 largely is redundant to current FDIC rules 
and regulations that govern advertising of non-deposit products, 
including securities, for all insured depository institutions, the FDIC 
proposes to rescind and remove Sec.  390.331.

C. 12 CFR 390.332--Merger, Consolidation, Purchase or Sale of Assets, 
or Assumption of Liabilities

    Section 390.332 addresses the application requirements for mergers, 
consolidations, purchases or sales of assets, and assumptions of 
liabilities that apply to State savings associations. The FDIC proposes 
to rescind Sec.  390.332 and to amend 12 CFR part 303, subpart D, the 
section of the FDIC's regulations governing merger transactions. The 
proposed amendments to subpart D would make that section applicable to 
any FDIC-supervised institution, including State savings associations, 
and would make other conforming changes. The proposed revisions to 
subpart D would make subpart D applicable to mergers in which the 
resulting institution is a State savings association, while observing 
the necessary requirements of the Bank Merger Act and Home Owners' Loan 
Act (HOLA).\14\ The FDIC specifically proposes amending Sec.  
303.62(a)(1) of the FDIC's regulations to clarify that this section 
applies to merger transactions in which the resulting institution is 
either an insured State nonmember bank or a State savings association.
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    \14\ 12 U.S.C. 1461 et seq.
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    HOLA generally provides for a 60-day expedited processing period 
for applications involving State or Federal savings associations that 
acquire or are acquired by another insured depository institution.\15\ 
The FDIC proposes to amend Sec.  303.64 of its regulations to reflect 
HOLA's expedited statutory processing requirement as it applies to 
State savings associations. Specifically, a proposed new paragraph (c) 
of section 303.64 would clarify that the FDIC will act on merger 
applications submitted by State savings associations within 60 days 
after the date of the FDIC's receipt of a substantially complete merger 
application, subject to the FDIC's authority to extend such period by 
an additional 30 days in cases where material information is 
substantially inaccurate or incomplete.\16\ Although the FDIC proposes 
to incorporate this 60-day processing requirement with respect to State 
savings associations, the FDIC proposes to rescind the provisions of 
Sec.  390.332 that deem certain merger applications involving state 
savings associations to be automatically approved.\17\ The FDIC does 
not consider such provisions to be statutorily required by the HOLA, 
and their inclusion in subpart D would be inconsistent with the 
treatment of State nonmember banks under subpart D, which clarifies 
that merger applications processed under expedited processing are not 
deemed to be automatically approved upon the conclusion of the 
expedited processing period.\18\ After the proposed amendment to 
subpart D and proposed removal and rescission of Sec.  390.332, all 
FDIC-supervised institutions would be subject, in substantially the 
same manner, to the regulations for merger applications found in part 
303, subpart D.
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    \15\ 12 U.S.C. 1467a(s)(2).
    \16\ 12 U.S.C. 1467a(s)(2)(B).
    \17\ See 12 CFR 390.332(f) and (h).
    \18\ 12 CFR 303.64(a)(3).
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    The FDIC is including a technical amendment to Sec.  303.62(b)(5) 
of the FDIC's regulations. Currently, Sec.  303.62(b)(5) provides that 
an insured depository institution assuming deposit liabilities of 
another insured institution must provide certification of assumption of 
deposit liability to the FDIC in accordance with part 307. This 
provision no longer accurately reflects the requirements of part 307, 
which was amended to clarify that the transferring institution file the 
certification, rather than the assuming institution.\19\
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    \19\ 71 FR 8789 (Feb. 21, 2006), codified at 12 CFR 307.1 et 
seq.

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[[Page 58494]]

D. 12 CFR 390.333--Advertising

    Section 390.333 prohibits State savings associations from making 
inaccurate representations about services, contracts, investments, or 
financial condition in their advertising. It appears that the former 
OTS used this regulation sparingly. FDIC staff identified only ten 
occasions in which the former OTS cited this provision in guidance 
letters and no circumstances in which the former OTS cited the 
regulation in an adjudicated enforcement proceeding.
    The prohibition of misrepresentations in advertising contained in 
Sec.  390.333 is substantially similar to the more general prohibition 
of unfair or deceptive acts or practices under section 5(a) of the 
Federal Trade Commission Act (Section 5). The FDIC enforces this 
provision pursuant to its authority under Section 8 of the FDI Act.\20\ 
Section 390.333 prohibits advertising and representations that are 
inaccurate or that misrepresent a State savings association's services, 
contracts, investments, or financial condition. The prohibition 
contained in Section 5 is broader than Sec.  390.333 because it 
prohibits all ``unfair or deceptive acts or practices in or affecting 
commerce,'' and it applies to all FDIC-supervised institutions, not 
only State savings associations.\21\ Because the narrower prohibitions 
of Sec.  390.333 appear subsumed within the broader prohibitions of 
Section 5, the FDIC proposes to rescind and remove Sec.  390.333.
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    \20\ 12 U.S.C. 1818.
    \21\ 15 U.S.C. 45(a)(1).
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    In interpreting Section 5, the Federal Trade Commission (FTC) and 
the courts have concluded that an advertisement is not misleading 
unless the representation, omission, or practice is material, meaning 
that it is likely to affect a consumer's decision regarding a product 
or service.\22\ Arguably, then, Sec.  390.333 sets a higher standard 
than Section 5 because Sec.  390.333 lacks an explicit materiality 
requirement. That is, if Sec.  390.333 is read strictly, an 
advertisement could violate that section even if the misrepresentation 
in the advertisement is not material. As a practical matter, however, 
it is unlikely that the FDIC would cite a violation of Sec.  390.333 
for an immaterial misrepresentation. Therefore, the FDIC does not 
believe that Sec.  390.333 provides additional meaningful supervisory 
or enforcement authority to regulate misrepresentations by State 
savings associations. As a result, the FDIC proposes to rescind and 
remove Sec.  390.333.
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    \22\ FTC Policy Statement on Deception, October 14, 1983 
(appended to Cliffdale Assocs., Inc., 103 F.T.C. 110, 174 (1984)); 
Novartis Corp. v. F.T.C., 223 F.3d 783, 786 (D.C. Cir. 2000); F.T.C. 
v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994).
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E. 12 CFR 390.334--Directors, Officers, and Employees

    Section 390.334 limits who may serve on the board of directors of a 
State savings association by providing that: A majority of the 
directors must not be employees of the State savings association or its 
affiliates; no more than two directors may come from the same family; 
and no more than one director may be an attorney with a particular law 
firm.
    The FDIC proposes to remove and rescind Sec.  390.334. The FDIC 
expects State nonmember banks to comply with the laws and regulations 
of their chartering authority regarding the composition of their boards 
of directors and will expect State savings associations to do the same. 
The provisions of Sec.  390.334 are not statutorily mandated and were 
initially adopted in 1976 by the former OTS' precursor, the Federal 
Home Loan Bank Board (FHLBB) to increase the independence of boards of 
directors of insured institutions.\23\
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    \23\ Director Guidelines and Certain Prohibitions and 
Disclosures, 41 FR 35812, 35814 (Aug. 24, 1976).
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    The FDIC expects State savings associations to comply with the laws 
of their chartering authorities regarding the composition of boards of 
directors and to look to FDIC-issued guidance for examples of practices 
that the FDIC considers consistent with safety-and-soundness standards 
or other applicable laws and regulations. For example, the FDIC's 
Pocket Guide for Directors contains examples of appropriate conduct by 
directors' and boards' conduct.\24\ The FDIC believes that this 
Statement of Policy adequately advances the policy objectives of Sec.  
390.334. Accordingly, the FDIC proposes to rescind and remove Sec.  
390.334.
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    \24\ Available at https://www.fdic.gov/regulations/resources/director/pocket/index.html (last updated Dec. 13, 2007). See also 
Interagency Guidelines Establishing Standards for Safety and 
Soundness, 12 CFR part 364, app. A.
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F. 12 CFR 390.335--Tying Restriction Exception

    Section 390.335 is entitled ``Tying restriction exception'' and 
refers solely to the regulations issued by the FRB. This section is a 
re-designation of the former OTS regulation 12 CFR 563.36. That section 
provided for an anti-tying safe harbor for discounts related to a 
customer's continued minimum balance in certain eligible products. This 
safe harbor was adopted to conform to a similar safe harbor adopted by 
the FRB. When the former OTS regulations were transferred to the FDIC, 
the FDIC replaced the substantive regulations of Sec.  563.36 with the 
following statement: ``For applicable rules, see the regulations issued 
by the Board of Governors of the Federal Reserve System.'' This 
reflects the fact that section 312(b)(2) of the Dodd-Frank Act 
transferred the authority to grant exceptions from the anti-tying 
regulations of HOLA to the FRB in consultation with the FDIC or OCC as 
appropriate, rather than to the FDIC, upon the dissolution of the 
OTS.\25\
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    \25\ 12 U.S.C. 5412(b)(2)(A).
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    The FDIC proposes rescinding and removing Sec.  390.335 because the 
FRB's Regulation LL \26\ sets forth regulatory exceptions to the anti-
tying provisions of HOLA.\27\ The authority to grant such exceptions 
rests with the FRB, in consultation with the FDIC, and the FDIC retains 
the authority to enforce the anti-tying provisions of HOLA.\28\ The 
FDIC, therefore, considers it appropriate to rescind and remove Sec.  
390.335 from the FDIC's rules and regulations.
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    \26\ See 12 CFR 238.7.
    \27\ 12 U.S.C. 1464(q).
    \28\ 12 U.S.C. 1464(d).
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G. 12 CFR 390.336--Employment Contracts

    Section 390.336 sets forth requirements with which a State savings 
association must comply when entering into an employment contract with 
its officers and other employees. This section is a re-designation of 
the former OTS regulation 12 CFR 563.39, which relies on the general 
statutory authority in HOLA to promulgate regulations concerning the 
savings and loan industry.\29\
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    \29\ 12 U.S.C. 1464(a).
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    The FDIC proposes to rescind and remove Sec.  390.336. State 
savings associations are subject to existing statutory authority 
regarding employment contracts with institution-affiliated parties. For 
instance, section 30 of the FDI Act prohibits an insured depository 
institution from entering into a contract with any person for services 
or goods if the contract would adversely affect the institution's 
safety or soundness.\30\ Further, the FDIC expects that State savings 
associations will be guided by the Interagency Guidelines Establishing 
Standards for Safety and Soundness (the Interagency Safety and 
Soundness Guidelines) prescribed

[[Page 58495]]

pursuant to section 39 of the FDI Act, which apply to all insured 
depository institutions, including State savings associations.\31\ In 
addition, part 359 of the FDIC's regulations limits and/or prohibits 
troubled institutions from paying and making golden parachute and 
indemnification payments to an institution-affiliated party.
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    \30\ 12 U.S.C. 1831g.
    \31\ See 12 U.S.C. 1831p-1(c); 12 CFR part 364, App. A, Sec.  
III.
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    For the reasons stated above, the FDIC proposes to rescind and 
remove Sec.  390.336.

H. 12 CFR 390.337--Transactions With Affiliates

    Section 11(a) of HOLA \32\ applies Sections 23A and 23B of the 
Federal Reserve Act \33\ to every savings association in the same 
manner and to the same extent as if the savings association were a 
member bank with two additional restrictions. The first restriction 
prohibits State and Federal savings associations from making a loan or 
other extension of credit to any affiliate unless the affiliate is 
engaged only in activities which the FRB, by regulation, has determined 
to be permissible for bank holding companies under section 4(c) of the 
Bank Holding Company Act.\34\ The second restriction prohibits State 
and Federal savings associations from entering into any transaction for 
the purchase or investment in securities issued by the affiliate with 
any affiliate other than with respect to the shares of a 
subsidiary.\35\
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    \32\ 12 U.S.C. 1468(a).
    \33\ 12 U.S.C. 371, 371c-1.
    \34\ 12 U.S.C. 1468(a)(1)(A), 12 U.S.C. 1843(c).
    \35\ 12 U.S.C. 1468(a)(1)(B).
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    Similar to section 11 of HOLA, section 18(j) of the FDI Act applies 
sections 23A and 23B to every nonmember insured bank as if it were a 
member bank.\36\ The scope of the FRB's affiliate transaction 
regulation, Regulation W, notes that both the FDI Act and HOLA make 
sections 23A and 23B applicable to insured State nonmember banks and 
insured savings associations, respectively.\37\
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    \36\ 12 U.S.C. 1828(j)(1)(A).
    \37\ 12 CFR 223.1(c).
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    The OTS adopted 12 CFR 563.41 to implement affiliate transaction 
requirements for State and Federal savings associations and, in the 
regulation, referenced Regulation W.\38\ This regulation was 
redesignated as 12 CFR 390.337 in the transfer of authority for State 
savings associations from the OTS to the FDIC. Section 390.337 states 
only that State savings associations should ``see the regulations 
issued by Board of Governors of the Federal Reserve System'' for the 
applicable rules for transactions with affiliates. The FDIC does not 
have a regulation comparable to Sec.  390.337 that applies to State 
nonmember banks because the FDI Act specifically states that sections 
23A and 23B of the Federal Reserve Act apply to State nonmember 
banks.\39\ Because HOLA similarly applies sections 23A and 23B of the 
Federal Reserve Act to State savings associations \40\ and because the 
FRB's Regulation W \41\ addresses the additional restrictions of HOLA 
applicable to State and Federal savings associations' transactions with 
their affiliates, the FDIC believes there is no need to retain Sec.  
390.337.\42\ The FDIC, therefore, proposes to rescind and remove this 
section.
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    \38\ Id.
    \39\ 12 U.S.C. 1828(j)(1)(A).
    \40\ 12 U.S.C. 1468(a).
    \41\ The FDIC has interpreted the language ``in the same manner 
and to the same extent'' to include the application of Regulation W.
    \42\ 12 CFR 223.72.
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I. 12 CFR 390.338--Loans by Savings Associations to Their Executive 
Officers, Directors and Principal Shareholders

    Section 22(g) of the Federal Reserve Act \43\ pertains to 
extensions of credit to executive officers of banks, while section 
22(h) of the Federal Reserve Act \44\ deals with extensions of credit 
by member banks to their to executive officers, directors, and 
principal shareholders (or to related interests of those individuals) 
(insiders). Section 18(j)(2) of the FDI Act \45\ provides that both 
sections 22(g) and (h) of the Federal Reserve Act are applicable to 
insured nonmember banks in the same manner and to the same extent as if 
they were member banks. Section 11(b) of HOLA provides a similar result 
with respect to both State and Federal savings associations.\46\
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    \43\ 12 U.S.C. 375a.
    \44\ 12 U.S.C. 375b.
    \45\ 12 U.S.C. 1828(j)(2).
    \46\ 12 U.S.C. 1468(b).
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    The OTS implemented insider lending restrictions for savings 
associations at 12 CFR 563.43. That section cross-referenced the FRB's 
Regulation O,\47\ with some additional modifications. Section 390.338 
is the re-designation of 12 CFR 563.43, a transferred OTS regulation, 
and the rule merely directs the reader to the regulations issued by the 
FRB. Section 337.3 of the FDIC's regulations \48\ implements these 
requirements in part by incorporation through reference to Regulation 
O, as previously accomplished by the OTS in Sec.  563.43, and also by 
imposing direct regulatory requirements on State nonmember banks.
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    \47\ 12 CFR part 215.
    \48\ 12 CFR 337.3.
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    After careful comparison of Sec.  337.3 with Sec.  390.338, the 
FDIC has concluded that the transferred OTS rule governing insider 
loans is substantively redundant. Therefore, based on the foregoing, 
the FDIC proposes to rescind and remove Sec.  390.338, to make minor 
conforming changes to Sec.  337.3 to clarify its applicability to State 
savings associations, and to make technical amendments to Sec.  337.3, 
discussed in further detail below. If the proposal is adopted in final 
form, FDIC-supervised institutions--including State savings 
associations--will be regulated in a uniform manner. As a result, the 
FDIC proposes to rescind and remove Sec.  390.338 in its entirety.
    The FDIC also proposes to amend Sec.  337.3 to apply to ``FDIC-
supervised institutions,'' meaning State nonmember banks, State savings 
associations, and foreign banks having an insured branch, to conform to 
and reflect the scope of the FDIC's current supervisory 
responsibilities as the appropriate Federal banking agency for both 
State savings associations and State nonmember banks. Finally, the 
proposal would make technical corrections and changes to Sec.  337.3. 
Section 337.3(a) currently provides that, with the exception of certain 
specified sections (namely Sec. Sec.  215.5(b), 215.5(c)(3), 
215.5(c)(4), and 215.11), insured nonmember banks are subject to the 
restrictions contained in subpart A of Regulation O to the same extent 
and to the same manner as if they were member banks. The citations to 
Regulation O in Sec.  337.3(a) are no longer accurate, however, because 
the FRB amended Regulation O to remove several statutory reporting 
requirements relating to insider lending consistent with section 601 of 
the Financial Services Regulatory Relief Act of 2006.\49\ A 2006 FRB 
rulemaking reflected these statutory amendments.\50\ Shortly after the 
FRB made amendments to Regulation O, the FDIC rescinded 12 CFR part 
349, the agency's regulations governing reporting on lending by a State 
nonmember bank and its correspondent banks to executive officers and 
principal shareholders.\51\ In addition to the Regulation O citations 
related to rescinded reporting requirements, the FDIC's current 
regulation contains an inaccurate reference to the Regulation O 
definition

[[Page 58496]]

of ``unimpaired capital and unimpaired surplus'' in footnote 3 of Sec.  
337.3(b). The FDIC proposes to correct this error by adding a reference 
to the correct Regulation O subsection.
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    \49\ Public Law 109-351.
    \50\ See 71 FR 71472 (Dec. 11, 2006). See also 72 FR 30470 (June 
1, 2007).
    \51\ See 71 FR 78337 (Dec. 29, 2006).
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    In addition to these proposed changes, the FDIC also is proposing 
another technical, conforming change to Sec.  337.3: The elimination of 
transitional provisions that are now obsolete. These paragraphs were 
added to assist insured nonmember banks in complying with the statutory 
lending limits for executive officers of member banks, as required by 
the Federal Deposit Insurance Corporation Improvement Act of 1991 
(FDICIA).\52\ To assist insured nonmember banks in making the 
transition, the FDIC specifically provided for the handling of loans 
made prior to application of the new restrictions, but which were still 
outstanding as of that event. These provisions are no longer needed. 
The FDIC, therefore, proposes to eliminate them.
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    \52\ Public Law 102-242.
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    In sum, if the proposal is finalized, oversight of insider loans in 
Sec.  337.3 would apply to all FDIC-supervised institutions, including 
State savings associations; Sec.  337.3 would reflect technical 
amendments; and Sec.  390.338 would be rescinded and removed because it 
is largely duplicative of those rules found in Sec.  337.3.

J. 12 CFR 390.339--Pension Plans

    Section 390.339 prohibits State savings associations from 
sponsoring an employee pension plan which, because of unreasonable 
costs or for any other reason, could lead to material financial loss or 
damage to the sponsor. It further requires a State savings association 
that serves as a pension plan sponsor to retain detailed pension plan 
records and actuarial funding reports and to provide advance notice of 
a pension plan termination. The FDIC proposes to rescind and remove 
Sec.  390.339 because the section is substantially similar to the 
existing compensation regulations contained in the Interagency Safety 
and Soundness Guidelines.\53\
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    \53\ 12 CFR 364, App. A. III.
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    The Interagency Safety and Soundness Guidelines apply to all 
insured depository institutions, including State savings associations. 
Section III of the Interagency Safety and Soundness Guidelines 
explicitly prohibits compensation that could lead to material financial 
loss as an unsafe and unsound practice. The Interagency Safety and 
Soundness Guidelines also address excessive compensation as an unsafe 
and unsound practice, taking into account factors such as compensation 
history, the institution's financial condition, comparable compensation 
practices, the projected costs and benefits of postemployment benefits, 
fraudulent or other inappropriate activity, and any other factors the 
agencies deem relevant. ``Compensation'' is defined as ``all direct and 
indirect payments or benefits, both cash and non-cash, granted to or 
for the benefit of any executive officer, employee, director, or 
principal shareholder, including but not limited to payments or 
benefits derived from an employment contract, compensation or benefit 
agreement, fee arrangement, perquisite, stock option plan, 
postemployment benefit, or other compensatory arrangement Moreover, the 
requirements of the Employee Retirement Security Act of 1974 \54\ and 
Internal Revenue Code \55\ and the implementing regulations of the 
Pension Benefit Guaranty Corporation, including recordkeeping, would 
apply to any pension plan offered by an FDIC-supervised 
institution.\56\ On this basis, FDIC staff proposes to rescind and 
remove Sec.  390.339.
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    \54\ Public Law 93-406, 88 Stat. 829, codified in part at 29 
U.S.C. 1001, et seq.
    \55\ 26 U.S.C. 1, et seq.
    \56\ 29 U.S.C. 1003; 29 CFR 4000, et seq.
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K. 12 CFR 390.340--Offers and Sales of Securities at an Office of a 
Savings Association

    Section 390.340 generally prohibits the offer or sale of debt or 
equity securities issued by a State savings association or an affiliate 
of the State savings association at an office of the State savings 
association with the exception of equity securities issued in 
connection with the State savings association's conversion from mutual 
to stock form in a transaction that has been approved by the FDIC or if 
the sale is conducted in accordance with the conditions set forth in 
Sec.  390.340. This section is a re-designation of former OTS 
regulation 12 CFR 563.76.
    Section 563.76 was added to the former OTS' regulations in 1992 to 
minimize potential customer confusion and to promote understanding of 
the nature and risks associated with securities sold at a State savings 
association's offices, while still preserving an effective means for a 
State savings association to raise capital in the conversion process. 
The FDIC does not have a similar regulation but has published the NDIP 
Statement of Policy,\57\ which addresses all sales of nondeposit 
products (such as annuities, mutual funds, and other securities) by 
depository institutions; disclosures and advertising; the setting and 
circumstances of sales of securities; qualification and training for 
personnel who sell securities; standards for suitability of the 
products for customers and sales practices; compensation practices; and 
compliance policies and procedures. In addition, the FDIC Statement of 
Policy Regarding the Use of Offering Circulars in Connection with 
Public Distribution of Bank Securities (Offering Circular Statement of 
Policy) addresses sales and distribution of bank securities and 
disclosures that should be included in offering circulars for bank 
securities to ensure disclosure of material facts to investors.
---------------------------------------------------------------------------

    \57\ Interagency Statement on Retail Sales of Nondeposit 
Investment Products (Feb.15, 1994), https://www.fdic.gov/regulations/laws/rules/5000-4500.html.
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    The content requirements in Sec.  390.340 that are designed to 
prevent consumer confusion are included in these two Statements of 
Policy. It is the FDIC's view that specifically imposing these 
requirements on State savings associations through regulation is 
unnecessary. According, the FDIC proposes that Sec.  390.340 be 
rescinded and removed.

L. 12 CFR 390.341--Inclusion of Subordinate Debt Securities and 
Mandatorily Redeemable Preferred Stock as Supplementary Capital

    Section 403(b) of the National Housing Act, as amended, provided 
that no institution insured by the Federal Savings and Loan Insurance 
Corporation (FSLIC) may ``issue securities which guarantee a definite 
return or which have a definite maturity except with the specific 
approval of the'' FSLIC. Because a number of insured institutions had 
applied to the FSLIC for approval of the issuance of various types of 
subordinated debt securities to provide a broader base for capital 
operations, in 1972, the FHLBB, as the operating head of the FSLIC, 
adopted a number of rules to provide for uniform requirements for the 
issuance of such securities.\58\ That rule was transferred to the OTS 
pursuant to the Financial Institutions Reform, Recovery, and 
Enforcement Act of 1989 (FIRREA) and codified at 12 CFR 563.81.\59\
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    \58\ 37 FR 21179 (Oct. 6, 1972).
    \59\ 54 FR 49411.
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    In 2007, the OTS adopted a final rule amending 12 CFR 563.81 to 
delete several unnecessary or outdated requirements and to conform 
certain regulations, such as maturity period requirements and purchaser 
restrictions, to the rules issued by the other Federal

[[Page 58497]]

banking agencies. In addition, the rule reconciled conflicting rules, 
included appropriate statutory cross-references, and reflected plain 
language.
    Section 390.341 is the re-designation of Sec.  563.81. Section 
390.341 provides application and notice procedures and form and content 
requirements for subordinate debt securities and mandatorily redeemable 
preferred stock that a State savings association seeks to include in 
its tier 2 capital. There is no corresponding requirement applicable to 
State nonmember banks. For the following reasons, the FDIC is proposing 
to rescind Sec.  390.341.
    The FDIC believes that it is not necessary for a State savings 
association to apply or provide notice to the FDIC before issuing 
subordinate debt securities or mandatorily redeemable preferred stock. 
Moreover, many of the form and content requirements in Sec.  390.341 
that are designed to prevent consumer confusion are included in the 
FDIC's Offering Circular Statement of Policy.\60\ It is the FDIC's view 
that specifically imposing these requirements on State savings 
associations through a regulation is unnecessary.
---------------------------------------------------------------------------

    \60\ See 61 FR 46807 (Sept. 5, 1996).
---------------------------------------------------------------------------

    Section 390.341 also includes a number of criteria that subordinate 
debt securities and mandatorily redeemable preferred stock must satisfy 
in order to qualify as tier 2 capital. The criteria for inclusion in 
tier 2 capital are included in the FDIC's capital rules in 12 CFR part 
324.\61\ Accordingly, it is not necessary to specify them separately in 
a regulation applicable to State savings associations alone. Therefore, 
the FDIC proposes to rescind and remove Sec.  390.341.
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    \61\ See 12 CFR 324.20(d)(1).
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M. 12 CFR 390.342-348--Capital Distributions

1. Regulations Governing Capital Distributions
    Sections 390.342 through 390.348 govern capital distributions by 
State savings associations. Certain of these provisions were adopted by 
the OTS to implement statutory prompt corrective action (PCA) 
requirements that apply to all insured depository institutions, and 
others were adopted by the OTS for supervisory or policy reasons. The 
requirements that are statutorily mandated have analogous provisions in 
the FDIC's regulations implementing PCA with respect to State nonmember 
banks and insured branches of foreign banks. Other regulatory 
requirements that the FDIC has adopted with respect to State nonmember 
banks, including those related to retirements and reductions in 
capital, advance some of the policy objectives that underlay the non-
statutorily mandated provisions that were previously adopted by the 
OTS. Therefore, and as more fully explained below, the FDIC proposes to 
rescind the provisions of subpart S that govern capital requirements 
and to revise the FDIC's regulations related to PCA, as well as those 
related to retirements and reductions of capital, so that State savings 
associations are subject to the same requirements that govern capital 
distributions by State nonmember banks.
2. Other FDIC Regulations
a. 12 CFR 303.203--Applications for Capital Distributions
    Part 303 of the FDIC's regulations includes procedures to implement 
the filing requirements for capital distributions under section 38 of 
the FDI Act.\62\ Section 38 applies to all insured depository 
institutions, and, among other things, generally prohibits an insured 
depository institution from making a capital distribution if, after 
making the distribution, the institution would be undercapitalized.\63\ 
Section 38 provides an exception to this prohibition that authorizes 
the Federal banking agencies to permit certain repurchases, 
redemptions, retirements, or other acquisitions of shares or other 
ownership interests that are made in connection with the issuance of 
additional shares or obligations and that would reduce the 
institution's financial obligations or otherwise improve the 
institution's financial condition.\64\ Section 38 defines a ``capital 
distribution'' to include certain dividends; repurchases, redemptions, 
retirements, or other acquisitions of shares or other ownership 
interests, including extensions of credit to finance an affiliated 
company's acquisition of such shares; and any other transaction that 
the Federal banking agencies find to be in substance a distribution of 
capital.\65\
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    \62\ 12 U.S.C. 1831o; see also 12 CFR 324.405.
    \63\ 12 U.S.C. 1831o(d)(1)(A).
    \64\ 12 U.S.C. 1831o(d)(1)(B).
    \65\ 12 U.S.C. 1831o(b)(2)(B).
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    Section 303.203 implements the above provisions of section 38 by 
requiring an insured State nonmember bank and any insured branch of a 
foreign bank to submit an application to the FDIC for a capital 
distribution if, after having made a capital distribution, the 
institution would be undercapitalized, significantly undercapitalized, 
or critically undercapitalized.\66\ Section 303.203 sets forth the 
filing requirements for proposed capital distributions that are within 
the scope of section 38. Specifically, such filings must describe the 
nature of the proposal, including the shares or obligations that are 
the subject of the proposal, and must include an explanation of how the 
proposal would reduce the applicant institution's financial obligations 
or otherwise improve its financial condition.\67\ Section 303.203 also 
clarifies that if a proposed action also requires an application under 
Sec.  303.241, such an application should be filed concurrently with 
the application filed pursuant to section 38.\68\
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    \66\ 12 CFR 303.203(a).
    \67\ 12 CFR 303.203(b).
    \68\ Id.
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    Although section 38 applies to all insured depository institutions, 
Subpart K, including Sec.  303.203, applies by its terms only to State 
nonmember banks and insured branches of foreign banks. As discussed 
below, the FDIC proposes to rescind the provisions related to capital 
distributions by State savings associations in Subpart S and to make 
State savings associations subject to the same capital distribution 
requirements that apply to State nonmember banks and insured branches 
of foreign banks. Accordingly, the FDIC proposes to amend Sec.  303.203 
so that it expressly applies to State savings associations. In 
addition, the FDIC proposes a corresponding technical change to the 
scope section of Subpart K, 12 CFR 303.200, so that it applies to State 
savings associations.\69\ As noted, with respect to transactions that 
are subject to filing requirements under both section 38 and section 
18(i), Sec.  303.203(b) provides that applicants should file such 
applications concurrently or as part of the same application. For the 
reasons described below, the FDIC proposes replacing the reference to 
section 18(i) with a direct reference to Sec.  303.241.
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    \69\ The FDIC is also aware that this proposal, as well as other 
regulatory developments, would also necessitate certain technical 
changes to the FDIC's regulations related to annual independent 
audits and reporting requirements, 12 CFR part 363, including Table 
1 to Appendix A of Part 363. The FDIC intends to address such 
technical changes in a separate notice.
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b. 12 CFR 303.241--Reduce or Retire Capital Stock or Capital Debt 
Instruments
    Section 303.241 implements section 18(i)(1) of the FDI Act. Section 
18(i)(1) generally prohibits an insured State nonmember bank from 
reducing the amount or retiring any part of its common or preferred 
capital stock or

[[Page 58498]]

retiring any part of its capital notes or debentures, without the prior 
consent of the FDIC.\70\ In considering an application to reduce or 
retire such instruments, section 18(i)(4) directs the FDIC to consider 
various statutory factors, including those related to financial history 
and condition, capital adequacy, future earnings prospects, general 
character and fitness of management, the convenience and needs of the 
community to be served, and consistency with the purposes of the FDI 
Act.\71\
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    \70\ 12 U.S.C. 1828(i)(1).
    \71\ 12 U.S.C. 1828(i)(4).
---------------------------------------------------------------------------

    Section 303.241 sets forth various requirements related to the 
content of filings submitted to the FDIC pursuant to section 18(i)(1), 
including, where applicable: The type and amount of the change to the 
applicant's capital structure; a schedule detailing the applicant's 
present and proposed capital structure; the time period encompassed by 
the proposal; certain certifications related to the capital adequacy of 
the applicant; the repurchase price of capital instruments and the 
basis for establishing fair market value; a statement that the proposal 
is available to all holders of a particular class of instruments, and 
if not, the details of any restrictions; and the date that the 
applicant's board of directors approved the proposal.\72\ Section 
303.241 also authorizes the FDIC to seek additional information while 
processing applications under section 18(i)(1); permits applications 
that are subject to both section 18(i)(1) and section 38 to be filed 
concurrently, or as a single application; sets forth expedited 
processing procedures for eligible depository institutions, and 
provides that applications that qualify for, and are not removed from, 
expedited processing will be deemed approved 20 days after receipt of a 
substantially complete application; and sets forth standard processing 
procedures.\73\
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    \72\ 12 CFR 303.241(c).
    \73\ 12 CFR 303.241(d)-(g).
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    Consistent with section 18(i)(1)'s specific applicability to State 
nonmember banks, Sec.  303.241 by its terms applies only to State 
nonmember banks. However, the FDIC believes that, consistent with the 
FDIC's authority under section 39 of the FDI Act,\74\ it would be a 
sound operational standard for the FDIC to consider transactions by 
State savings associations that would result in the reduction or 
retirement of capital stock or capital debt instruments. Reviewing 
proposals by State savings associations to reduce or retire capital 
stock or debt instruments would preserve the FDIC's ability to review 
such transactions by a State savings association, as currently required 
under Sec.  390.345 of the FDIC's regulations. Because section 18(i)(1) 
by its terms applies only to State nonmember banks, the FDIC proposes 
to amend Sec.  303.241 to clarify that Sec.  303.241 applies to a State 
savings association seeking to reduce or retire any part of its common 
stock or preferred stock, or capital notes or debentures, as if the 
State savings association were a State nonmember bank subject to 
section 18(i)(1). Accordingly, in considering such an application by an 
insured State savings association, the FDIC would take into 
consideration the statutory factors enumerated in section 18(i)(4).\75\ 
As noted above, Sec.  303.241 permits applications that are subject to 
both section 18(i)(1) and section 38 to be filed concurrently, or as a 
single application. Because State savings associations are not 
technically subject to section 18(i)(1) and would be made subject to 
Sec.  303.241 by the proposed rule under the FDIC's section 39 
authority, the FDIC proposes to change this provision so that it refers 
directly to applications subject to Sec.  303.241, rather than to 
section 18(i)(1). Furthermore, to achieve consistency with the filing 
procedures set forth in Sec.  303.203, which states that filings 
subject to Sec. Sec.  303.203 and 303.241 ``should'' be made 
concurrently or as part of the same application, the FDIC proposes to 
amend Sec.  303.241 to advise institutions that filings subject to both 
Sec. Sec.  303.203 and 303.241 should be filed concurrently or as part 
of the same application.
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    \74\ 12 U.S.C. 1831p-1.
    \75\ The statutory factors of section 18(i)(4) include: (A) The 
financial history and condition of the institution; (B) the adequacy 
of its capital structure; (C) its future earnings prospects; (D) the 
general character and fitness of its management; (E) the convenience 
and needs of the community to be served; and (F) whether or not its 
corporate powers are consistent with the purposes of [the FDI Act]. 
12 U.S.C. 1828(i)(4).
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    Question 1: Using the authority granted the FDIC as the appropriate 
Federal banking agency for State savings associations, is it 
appropriate for the FDIC to make Sec.  303.241 applicable to State 
savings associations? Would doing so effectively maintain the FDIC's 
regulatory consideration of reductions or retirements of capital by 
State savings association currently provided for in 12 CFR 390.345?
3. 12 CFR 390.342--Capital Distributions by State Savings Associations
    Section 390.342 states that Sec. Sec.  390.342 through 390.348 
apply to capital distributions by a State savings association.\76\ 
Because the FDIC proposes to rescind all of these sections, the FDIC 
proposes that Sec.  390.342 be rescinded and removed.
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    \76\ 12 CFR 390.342.
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4. 12 CFR 390.343--What is a capital distribution?
    Section 390.343 defines a ``capital distribution'' for the purposes 
of Sec. Sec.  390.342-348. Section 390.343(a) defines a capital 
distribution as a distribution of cash or other property made to a 
savings association's owners on account of their ownership, but 
excludes dividends consisting of shares or rights to purchase shares, 
and also excludes a payment that a mutual State savings association is 
required to make under the terms of a deposit instrument and any other 
amount paid on deposits that the FDIC determines is not a capital 
distribution.\77\ This prong of Sec.  390.343's definition of ``capital 
distribution'' is mirrored in section 38's definition of ``capital 
distribution.'' \78\
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    \77\ 12 CFR 390.343(a)(2).
    \78\ FDI Act Sec.  38(b)(2)(B), 12 U.S.C. 1831o(b)(2)(B).
---------------------------------------------------------------------------

    Section 390.343(b) includes within the definition of ``capital 
distribution'' a payment to repurchase, redeem, retire, or otherwise 
acquire any of a State savings association's shares or other ownership 
interests, any payment to repurchase, redeem, retire, or otherwise 
acquire debt instruments included in a savings association's total 
capital, and any extension of credit to finance an affiliate's 
acquisition of a State savings association's shares or interests.\79\ 
This prong is also mirrored in section 38, except that section 38's 
analogous provision does not expressly extend to debt instruments that 
are included in an institution's total capital.
---------------------------------------------------------------------------

    \79\ 12 CFR 390.343(b).
---------------------------------------------------------------------------

    Section 390.343(c) further defines ``capital distribution'' to 
include any direct or indirect payment of cash or other property to 
owners or affiliates made in connection with a corporate restructuring, 
including the payment of cash or property to shareholders of another 
savings association of its holding company to acquire ownership in that 
savings association, other than by a distribution of shares.\80\ This 
prong of Sec.  390.343's definition of ``capital distribution'' is not 
matched by an analogous prong in section 38. The OTS adopted this 
provision pursuant to the

[[Page 58499]]

authority under section 38(b)(2)(B)(iii), which authorizes the Federal 
banking agencies to, by order or regulation, consider a transaction 
that is in substance a distribution of capital to be deemed a ``capital 
distribution'' for the purposes of section 38.\81\ OTS adopted this 
provision in order to capture certain corporate restructurings, such as 
cash-out mergers, based on the rationale that such transactions are in 
substance distributions of capital.\82\
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    \80\ 12 CFR 390.343(c).
    \81\ 63 FR 1044, 1046 (Jan. 7, 1998).
    \82\ Id.
---------------------------------------------------------------------------

    Section 390.343(d) captures as a ``capital distribution'' any 
capital distribution that is charged against a State savings 
association's capital accounts if the State savings association would 
not be well capitalized following the distribution.\83\ As with 
payments made in connection with a corporate restructuring, this 
element of Sec.  390.343's regulatory definition is not expressly 
addressed in section 38. The OTS adopted this prong in its regulatory 
definition of ``capital distribution'' in order to capture 
distributions by a savings association's operating subsidiary to 
minority shareholders that would affect the capital accounts of the 
savings association.\84\
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    \83\ 12 CFR 390.343(d).
    \84\ 64 FR 2805, 2806 (Jan. 19, 1999).
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    Lastly, Sec.  390.343(e) incorporates FDI Act section 
38(b)(2)(B)(iii), which authorizes the Federal banking agencies to, by 
order or regulation, deem as a ``capital distribution'' any transaction 
that the FDIC determines to be in substance a distribution of 
capital.\85\
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    \85\ 12 CFR 390.343(e), 12 U.S.C. 1831o(b)(2)(B)(iii).
---------------------------------------------------------------------------

    The FDIC's PCA capital distribution filing procedures, 12 CFR 303, 
subpart K, do not adopt a regulatory definition of ``capital 
distribution'' specific to subpart K, but instead directly rely on the 
statutory definition of ``capital distribution'' found in section 
38(b)(2)(B) of the FDI Act. As described above, the regulatory 
definition of ``capital distribution'' applicable to State savings 
associations found in Sec.  390.343 incorporates all of the elements of 
the statutory definition of ``capital distribution.'' In addition, 
Sec.  390.343's definition of ``capital distribution'' expressly 
extends to certain transactions not specifically addressed in section 
38, such as: Repurchases, redemptions, retirements, or other 
acquisitions of debt instruments; payments made in connection with 
corporate restructurings; or other distributions that would be charged 
against a State savings association's capital accounts and that would 
cause the association to be less than well capitalized. The FDIC does 
not propose to adopt a regulatory definition of ``capital 
distribution'' specific to subpart K and proposes to continue to 
directly rely on the statutory definition of ``capital distribution'' 
found in section 38(b)(2)(B). Therefore, the FDIC proposes to rescind 
and remove Sec.  390.343.
    Question 2: Should the FDIC adopt a regulatory definition of 
``capital distribution'' in its PCA regulation, 12 CFR 303.203? In 
addition to incorporating the elements of section 38's definition of 
``capital distribution,'' should the FDIC exercise its authority under 
section 38(b)(2)(B)(iii) to adopt by regulation certain provisions that 
are not specifically addressed in the statutory definition of ``capital 
distribution,'' such as: Repurchases, redemptions, retirements, or 
other acquisitions of debt instruments; payments made in connection 
with corporate restructurings; or other distributions that would be 
charged against an institution's capital accounts and that would cause 
the institution to be less than well capitalized? Should such a 
definition apply to all FDIC-supervised institutions?
5. 12 CFR 390.344--Definitions Applicable to Capital Distributions
    Section 390.344 adopts additional definitions specifically for the 
capital distribution provisions of Sec. Sec.  390.342 through 
390.348.\86\ These defined terms include affiliate, capital, net 
income, retained net income, and shares. Because the FDIC proposes to 
rescind Sec. Sec.  390.342 through 390.348, this definition section 
would no longer be necessary. Accordingly, the FDIC proposes to rescind 
and remove Sec.  390.344.
---------------------------------------------------------------------------

    \86\ 12 CFR 390.344.
---------------------------------------------------------------------------

6. 12 CFR 390.345--Must I file with the FDIC?
    Under Sec.  390.345, a State savings association is required to 
file an application for a proposed capital distribution in certain 
circumstances, and in others is required to file a notice. An 
application is required under Sec.  390.345(a)(1) through (4) in cases 
where: (1) A State savings association is not eligible for expedited 
processing under Sec.  390.101; (2) the total amount of all capital 
distributions by a State savings association for the applicable 
calendar year exceeds the association's net income for that year to 
date plus retained net income for the preceding two years; (3) a State 
savings association would not be at least adequately capitalized 
following the distribution; or (4) a State savings association's 
proposed capital distribution would violate a prohibition contained in 
any applicable statute, regulation, or agreement with the FDIC, or 
violate a condition imposed on the State savings association in an 
FDIC-approved application or notice.\87\ A notice is required under 
Sec.  390.345(b)(1)-(2) in cases where: (1) A State savings association 
would not be well capitalized following the distribution; or (2) a 
State savings association's proposed capital distribution would reduce 
the amount of or retire any part of the association's common or 
preferred stock or retire any part of debt instruments included in 
capital.\88\
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    \87\ 12 CFR 390.345(a).
    \88\ 12 CFR 390.345(b).
---------------------------------------------------------------------------

    The FDIC proposes to make capital distributions by State savings 
associations subject to the same requirements that govern capital 
distributions by State nonmember banks. As discussed above, the 
requirements applicable to State nonmember banks are those imposed by 
section 38 of the FDI Act, implemented at Sec.  303.203 of the FDIC's 
regulations,\89\ and by FDI Act section 18(i), implemented at Sec.  
303.241 of the FDIC's regulations.
---------------------------------------------------------------------------

    \89\ See 12 CFR 324.405.
---------------------------------------------------------------------------

    The application requirements of Sec.  303.203 are analogous to 
those imposed on State savings associations by Sec.  390.345(a)(3), as 
both sections require applications to the FDIC in cases where an 
institution would be undercapitalized following a capital distribution, 
as mandated by section 38 of the FDI Act. Because section 38 prohibits 
capital distributions in cases where an insured depository institution 
would be undercapitalized, the substantive requirements of Sec.  
390.345(a)(3) would be preserved by making Sec.  303.203 applicable to 
State savings associations. Accordingly, the FDIC proposes to rescind 
and remove Sec.  390.345(a)(3) and, as noted above, the FDIC also 
proposes to amend Sec.  303.241 so that it applies to State savings 
associations. This proposal would preserve the regulatory consideration 
that is required under section 38 and would provide for consistency of 
treatment between State nonmember banks and State savings associations 
with respect to capital distributions.
    The application requirements of Sec.  303.241 are analogous to the 
notice requirements imposed on State savings associations by Sec.  
390.345(b)(2), as both sections require regulatory consideration of 
transactions that would

[[Page 58500]]

reduce or retire common or preferred stock or capital notes or 
debentures. Although Sec.  303.241 implements section 18(i) of the FDI 
Act, which applies by its terms only to State nonmember banks, the FDIC 
believes that it would be advisable to use its authority under section 
39 to maintain a regulatory filing requirement for a capital 
distribution by a State savings association that would reduce or retire 
the association's capital. Accordingly, the FDIC proposes to rescind 
and remove Sec.  390.345(b)(2) and, as noted above, the FDIC also 
proposes to amend Sec.  303.241 so that it applies to State savings 
associations. Doing so would preserve the regulatory consideration that 
applies to reductions or retirements of capital by State savings 
associations, and would achieve consistency of treatment between State 
nonmember banks and State savings associations with respect to capital 
distributions.
    The FDIC proposes to rescind and remove Sec.  390.345 in its 
entirety, which would effectively eliminate application requirements 
for capital distributions in cases where: A State savings association 
is not eligible for expedited processing under Sec.  390.101; the total 
amount of all capital distributions by a State savings association for 
the applicable calendar year exceeds the association's net income for 
that year to date plus retained net income for the preceding two years; 
and where a State savings association's proposed capital distribution 
would violate a prohibition contained in any applicable statute, 
regulation, or agreement with the FDIC, or violate a condition imposed 
on the State savings association in an FDIC-approved application or 
notice. The rescission and removal of Sec.  390.345 would also 
effectively eliminate the notice requirements for capital distributions 
in cases where a State savings association would not be well 
capitalized following the distribution. The FDIC believes that making 
Sec. Sec.  303.203 and 303.241 applicable to State savings associations 
would preserve adequate regulatory consideration over capital 
distributions by State savings associations, and therefore proposes to 
rescind and remove Sec.  390.345 in order to achieve consistency of 
treatment between State nonmember banks and State savings associations 
with respect to capital distributions.\90\
---------------------------------------------------------------------------

    \90\ State savings associations also may be subject to capital 
distribution requirements or restrictions under applicable state law 
or as required by the appropriate State supervisor.
---------------------------------------------------------------------------

7. 12 CFR 390.346--How do I file with the FDIC?
    Section 390.346 provides filing instructions for capital 
distributions that are subject to application or notice requirements 
under Sec.  390.345, including instructions concerning a filing's 
content, schedules, and timing.\91\ Because the FDIC proposes to 
rescind and remove Sec.  390.345, these provisions would no longer be 
applicable. Therefore, the FDIC proposes to rescind and remove Sec.  
390.346. As described above, the FDIC also proposes to make Sec. Sec.  
303.203 and 303.241 applicable to State savings associations, and both 
of these sections set forth requirements related to the content of 
filings. Furthermore, certain rules of general applicability, including 
those related to processing, are set forth in subpart A of part 303 of 
the FDIC's regulations and would apply to filings made by State savings 
associations under Sec. Sec.  303.203 and 303.241.
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    \91\ 12 CFR 390.346.
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8. 12 CFR 390.347--May I combine my notice or application with other 
notices or applications?
    Section 390.347 authorizes a State savings association to combine a 
notice or application required under Sec.  390.345 with another related 
notice or application.\92\ Because the FDIC proposes rescinding Sec.  
390.345, these provisions would no longer be applicable. Therefore, the 
FDIC proposes to rescind and remove Sec.  390.347. As noted above, by 
making State savings associations subject to Sec. Sec.  303.203 and 
303.241, as proposed, State savings associations should file 
applications that are subject to both sections as a single filing or 
concurrently with other filings.\93\
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    \92\ 12 CFR 390.347.
    \93\ See 12 CFR 303.203(b) and 12 CFR 303.241(e).
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9. 12 CFR 390.348--Will the FDIC permit my capital distribution?
    Section 390.348 sets forth the bases on which the FDIC may deny, in 
whole or in part, a notice or application filed under Sec.  390.345. 
Section 390.348(a) states that if a State savings association would be 
undercapitalized, significantly undercapitalized, or critically 
undercapitalized following a capital distribution, the FDIC will 
determine if the distribution would be permitted under the exemption 
authorized in section 38(d)(1)(B) of the FDI Act.\94\ Section 
390.348(b) states that the FDIC may deny a notice or application for a 
capital distribution that raises safety and soundness concerns. Section 
390.348(c) states that the FDIC may deny a capital distribution if it 
would violate a prohibition contained in any statute, regulation, or 
condition imposed on the applicant State savings association. Because 
the FDIC proposes to rescind and remove Sec.  390.345, these provisions 
would no longer be applicable. Furthermore, the statutory exception 
that applies to capital distributions subject to section 38 would 
continue to apply to capital distributions by State savings 
associations that are subject to section 38. In addition, because the 
proposal would make reductions or retirements of capital by State 
savings associations subject to the application requirements of Sec.  
303.241, the FDIC would evaluate such applications in light of the 
statutory factors enumerated in section 18(i)(4) of the FDI Act, and 
the bases identified in Sec. Sec.  390.348(b) and 390.348(c) would be 
preserved insofar as they would be inherent in how the FDIC would 
review applications in light of the statutory factors of section 
18(i)(4).\95\ For these reasons, the FDIC proposes to rescind and 
remove Sec.  390.348 in its entirety.
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    \94\ 12 CFR 390.348(a). This statutory exception under section 
38(d)(1)(B) authorizes the FDIC to permit a capital distribution 
that would otherwise be prohibited by section 38 if such a 
distribution is made in connection with the issuance of additional 
shares of obligations and would reduce the institution's financial 
obligations or otherwise improve the institution's financial 
condition. 12 U.S.C. 1831o(d)(1)(B).
    \95\ The statutory factors of section 18(i)(4): (A) The 
financial history and condition of the institution; (B) the adequacy 
of its capital structure; (C) its future earnings prospects; (D) the 
general character and fitness of its management; (E) the convenience 
and needs of the community to be served; and (F) whether or not its 
corporate powers are consistent with the purposes of the FDI Act. 12 
U.S.C. 1828(i)(4).
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N. 12 CFR 390.349--Management and Financial Policies

    Section 390.349 implements the statutory requirement of section 4 
of HOLA. That section requires each State savings association to be 
operated in a safe and sound manner and encourages State savings 
associations to provide credit for housing safely and soundly.\96\ In 
particular, Sec.  390.349 includes explicit safety and soundness 
requirements relating to liquidity and compensation to officers, 
directors, employees, and consultants. Section 39 of the FDI Act,\97\ 
requires the Federal banking agencies to prescribe safety and soundness 
standards for internal controls, information systems, and internal 
audit systems; loan documentation; credit underwriting; interest rate 
exposure; asset growth; compensation, fees, and

[[Page 58501]]

benefits; and such other operational and managerial standards as the 
agency determines to be appropriate. To this end, the FDIC has adopted 
part 364 and the related appendices. Part 364 establishes compensation-
related standards and provides for other safety-and soundness-related 
guidelines which apply to all insured State nonmember banks, to state-
licensed insured branches of foreign banks, and to State savings 
associations.\98\ As such, the safety and soundness standards in Sec.  
390.349 are generally duplicative of the standards implemented through 
part 364. To ensure consistent treatment of State nonmember banks and 
State savings associations, FDIC staff proposes to eliminate the 
distinct safety and soundness requirements for State savings 
associations found in Sec.  390.349, because part 364, as amended, 
provides consistent safety and soundness standards for both State 
nonmember banks and State savings associations. These standards help to 
ensure that State savings associations are operated in a safe and sound 
manner, enabling them to provide credit for housing safely and soundly. 
For these reasons, the FDIC proposes to rescind and remove Sec.  
390.349.
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    \96\ 12 U.S.C. 1463(a).
    \97\ 12 U.S.C. 1831p-1.
    \98\ 12 CFR 364.101. In 2015, 12 CFR 364.101 was amended to 
apply to both state nonmember banks and state savings associations. 
See Removal of Transferred OTS Regulations Regarding Safety and 
Soundness Guidelines and Compliance Procedures; Rules on Safety and 
Soundness, 80 FR 65903 (Oct. 28, 2015).
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O. 12 CFR 390.350--Examinations and Audits; Appraisals; Establishment 
and Maintenance of Records

    Section 390.350 contains requirements regarding examinations, 
appraisals, establishing and maintaining books and records, and using 
data processing services for maintenance of records. The proposed rule 
would rescind and remove all of Sec.  390.350. The FDIC believes that 
examination and appraisal requirements should be consistent between 
State savings associations and State nonmember banks because they are 
based on the same or similar statutory authority, as described below.
    Section 390.350(a) states that each State savings association and 
affiliate will be examined periodically and may be examined anytime by 
the FDIC and that appraisals may be required as part of the 
examination. Section 337.12 states that the FDIC examines State 
nonmember banks pursuant to section 10 of the FDI Act,\99\ State 
savings associations pursuant to section 10 of the FDI Act and section 
4 of HOLA,\100\ and implements the frequency of examinations specified 
by section 10 for insured depository institutions, including State 
savings associations. Because the examination requirements of 
Sec. Sec.  390.350(a) and 337.12 are similar and both based on section 
10 of the FDIA, the FDIC proposes to rescind Sec.  390.350(a).
---------------------------------------------------------------------------

    \99\ 12 U.S.C. 1820.
    \100\ 12 U.S.C. 1463.
---------------------------------------------------------------------------

    Section 390.350(a) allows the FDIC to require an appraisal during 
an examination if it is deemed advisable. Section 390.350(b) permits 
the FDIC to select appraisers in connection with an examination, 
requires State savings associations to pay for such an appraiser, and 
mandates that the FDIC furnish the appraisal report to the State 
savings association within 90 days following the filing of the report 
to the FDIC. Part 323 of the FDIC's regulations implements Title XI of 
FIRREA,\101\ which requires written appraisals in connection with 
certain federally related transactions entered into by institutions 
regulated by the FDIC. Section 323.3(c), which applies to all FDIC-
supervised institutions, including State savings associations, allows 
the FDIC to require an appraisal whenever the agency believes it is 
necessary to address safety and soundness concerns, which would include 
during an examination. The FDIC believes the appraisal provisions of 
Sec.  390.350(a) and (b) are unnecessary because they are duplicative 
of the FDIC's reservation of authority found in Sec.  323.3(c), which 
allows the FDIC to require an appraisal whenever the agency believes it 
is necessary to address safety and soundness concerns.\102\
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    \101\ Public Law 101-73, 103 Stat. 183; codified at 12 U.S.C. 
3331 et seq.
    \102\ Section 390.350(b) contains a cost allocation provision 
and a timeframe within which appraisals must be provided. These 
provisions are unnecessary because it is unlikely that the FDIC 
would purchase an appraisal and seek reimbursement. If the FDIC 
determines that an appraisal is needed, it will be made in a 
supervisory recommendation in a report of examination and the 
response time would be requested in the report transmittal letter or 
the request would be made as part of an enforcement action with a 
required timeframe.
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    Section 390.350(c) requires each State savings association and its 
affiliates to establish and maintain such accounting and other records 
as will provide an accurate and complete record of all business it 
transacts to enable the examination of the State savings association 
and its affiliates by the FDIC. The documents, files, and other 
material or property comprising said records shall at all times be 
available for such examination and audit wherever any of said records, 
documents, files, material, or property may be.
    State savings associations are already subject to other FDIC 
regulations that achieve the purposes of Sec.  390.350(c). For example, 
as recognized by Sec.  304.3 of the FDIC's regulations, all insured 
depository institutions, including State savings associations, are 
required to file quarterly Consolidated Reports of Condition and Income 
(Call Reports). Under Sec.  304.3(a), all insured depository 
institutions must prepare the Call Report in accordance with the 
instructions for the report (Call Report Instructions), which in turn 
require the institutions to maintain their business records in a manner 
that supports and reconciles to the contents of the Call Report.\103\ 
In addition, portions of the Call Report also are required to be 
prepared in accordance with GAAP.\104\ In addition, all State savings 
associations and other FDIC-supervised institutions are subject to 12 
CFR part 364 (including its Appendix A).\105\ This part requires FDIC-
supervised institutions to have internal controls and information 
systems that are appropriate to their size and the risks posed by their 
activities and that provide for, among other things: ``timely and 
accurate financial, operational and regulatory reports.'' \106\ Because 
accurate and complete business records are the very foundation of 
accurate regulatory and financial reporting, State savings associations 
must, therefore, maintain accurate and complete records of their 
business transactions supporting, and readily reconcilable to, the 
associations' regulatory and financial reports. In the event an FDIC-
supervised institution fails to create and maintain the required 
internal controls and information systems, the FDIC may require the 
institution to submit a safety and

[[Page 58502]]

soundness plan designed to correct the deficiencies and, if necessary, 
compel compliance by means of order.\107\
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    \103\ See the section entitled ``Preparation of the Reports'' 
contained in the General Instructions portion of Call Report 
Instructions for the FFIEC 031, 041 and 051 Report Forms and the 
section entitled ``Preparation of Information to be Reported'' in 
the General Instructions portion of the Report of Assets and 
Liabilities of U.S. Branches and Agencies of Foreign Banks (FFIEC 
002 Report Form).
    \104\ 12 U.S.C. 1831(n); See the section entitled 
``Applicability of U.S. Generally Accepted Accounting Principles to 
Regulatory Reporting Requirements'' contained in the General 
Instructions portion of Call Report Instructions for the FFIEC 031, 
041 and 051 Report Forms and the section entitled ``Accounting 
Basis'' in the General Instructions portion of the FFIEC 002 Report 
Form.
    \105\ 12 CFR 364.101. Part 364 and its appendices implement 
section 39(a) of the FDI Act. 12 U.S.C. 1831p-1. Taken together, 
part 364 and Appendix A reflect the FDIC's longstanding expectations 
for all prudently managed FDIC-supervised institutions while 
generally leaving the specific methods of achieving these objectives 
to each institution.
    \106\ 12 CFR part 364, App. A, Sec.  II.
    \107\ See 12 U.S.C. 1831p-1(e); 12 CFR 308.300, et seq.; 12 CFR 
part 364, App. A.
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    Section 390.350(d) prohibits State savings associations from 
transferring the location of any of its general accounting or control 
records, or the maintenance thereof, from its home office to a branch 
or service office, or from a branch or service office to its home 
office or to another branch or service office unless prior to the date 
of transfer its board of directors has authorized the transfer by 
resolution and notified the appropriate regional director. The FDIC has 
not promulgated a similar rule for State nonmember banks. Generally, 
state laws or regulations of the state chartering authority provide for 
the location of records. The FDIC generally conducts examinations at 
the home office of FDIC-supervised institutions and requires that 
records be produced upon request in connection with any examination or 
investigation under section 10(c) or section 8(n) of the FDI Act. The 
removal of Sec.  390.350(d) will provide relief to State savings 
association by not having to notify the appropriate regional director 
of its intention to relocate records from its home office to a branch 
or service office and will provide parity with State nonmember banks 
which do not provide the FDIC with prior notification of transferring 
records from one location to another.
    Section 390.350(e) requires that when a State savings association 
maintains any of its records by means of data processing services, it 
will notify the appropriate regional director for the region in which 
the principal office of such State savings association is located, in 
writing, at least 90 days prior to the date on which such maintenance 
of records will begin. Section 304.3(d), implementing section 7 of the 
Bank Service Company Act,\108\ already requires FDIC-supervised 
institutions, including State savings associations, to notify the FDIC 
about the existence of a service relationship within thirty days after 
the making of the contract or the performance of the service and 
provides for the required information either through a letter or FDIC 
Form 6120/06 Notification of Performance of Bank Services. The removal 
of Sec.  390.350(e) will eliminate conflicting requirements on State 
savings associations with respect to Section 7 of the Bank Service 
Company Act.
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    \108\ 12 U.S.C. 1867.
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    For the foregoing reasons, the FDIC proposes to rescind and remove 
Sec.  390.350 in its entirety.

P. 12 CFR 390.352--Financial Derivatives

    Section 390.352 addresses the permissibility of financial 
derivatives transactions, the responsibility of the board of directors 
and management of a State savings association with respect to such 
transactions, and recordkeeping requirements related to such 
transactions. The FDIC proposes to rescind and remove Sec.  390.352 for 
the reasons discussed below.
    Section 28(a) of the FDI Act,\109\ implemented by part 362 of the 
FDIC's regulations,\110\ restricts and prohibits 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 its service corporations. The term ``activities 
permissible for a Federal savings association'' means, among other 
things, activities recognized as permissible in OCC regulations.\111\ 
Section 163.172 of the OCC's regulations governs the financial 
derivatives activities of Federal savings associations, the 
responsibility of the board of directors and management of a Federal 
savings association with respect to such transactions, and 
recordkeeping requirements related to such transactions.\112\ Because 
section 28(a) of the FDI Act and part 362 permit a State savings 
association to engage in financial derivatives activities to the same 
extent permitted by the OCC with respect to a Federal savings 
association, the FDIC proposes to rescind and remove Sec.  390.352.
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    \109\ 12 U.S.C. 1831e(a).
    \110\ See 12 CFR 362.9-.15.
    \111\ See 12 CFR 362.9(a).
    \112\ See 12 CFR 163.172.
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Q. 12 CFR 390.353--Interest-Rate-Risk-Management Procedures

    Former FHLBB rules 12 CFR 571.3 and 563.17-6, respectively, were 
intended to support responsible risk management within the industry, to 
facilitate the examination process, and to assess and reduce the impact 
of interest rate risk on the former Savings Association Insurance Fund 
(SAIF).\113\ The OTS redesignated Sec.  563.17-6 as 12 CFR 
563.176.\114\ When the rule was transferred from the former OTS to the 
FDIC, the FDIC redesignated it as 12 CFR 390.353.
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    \113\ The SAIF provided deposit insurance to depositors of 
federally insured savings associations until it was merged into the 
Bank Insurance Fund (BIF), which similarly insured depositors of 
federally insured banks. The merged fund, the Deposit Insurance Fund 
(DIF) became effective on March 31, 2006, consistent with Sec.  
2102(a) of the Federal Deposit Insurance Reform Act of 2005. As a 
result of this action, both the SAIF and BIF were abolished. See 49 
FR 19307 (May 7, 1984) (proposed rule); 49 FR 27295 (July 3, 1984) 
(final rule).
    \114\ 54 FR 49411 (Nov. 30, 1989).
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    Section 390.353 requires the board of directors or a board 
committee of a State savings association to develop, implement, and 
review policies and procedures for the management of a State savings 
association's interest-rate-risk; requires the association's management 
to report periodically to the board regarding implementation of the 
policy; and requires the association's board of directors to adjust the 
policy as necessary, including adjustments to the authorized acceptable 
level of interest rate risk. For the reasons below, the FDIC proposes 
to rescind and remove Sec.  390.353.
    As mentioned above, the Interagency Safety and Soundness 
Guidelines, promulgated pursuant to section 39 of the FDI Act, describe 
examples of safe and sound practices for State nonmember banks and 
State savings associations. The guidelines suggest that an institution 
``should manage interest rate risk in a manner that is appropriate to 
its size and the complexity of its assets and liabilities''.\115\ 
Management and the board of directors should be provided reports 
regarding interest rate risk that are adequate to assess the level of 
risk. There is no reason to have an additional set of similar standards 
applicable only to State savings associations.\116\
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    \115\ 12 CFR part 364, App. A, Sec.  II.E.
    \116\ Section 305 of FDICIA required the Federal banking 
agencies to revise their risk-based capital standards to take into 
account interest rate risk. See 12 U.S.C. 1828 nt.; see also 12 CFR 
324.63, Table 10; 12 CFR 324.173, Table 12.
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R. 12 CFR 390.354--Procedures for Monitoring BSA Compliance

    Section 390.354 requires State savings associations to establish 
and maintain a Bank Secrecy Act (BSA) compliance program and a customer 
identification program. Section 390.354 also enumerates the four 
pillars required for a BSA compliance program. Similarly, Sec.  326.8 
of the FDIC's regulations \117\ requires insured depository 
institutions for which the FDIC is the appropriate Federal banking 
agency to establish a BSA compliance program to include the same four 
pillars and a customer identification program. The proposed rule would 
rescind Sec.  390.354 and make technical changes to Sec.  326.8, which 
is currently only applicable to insured depository institutions for 
which the

[[Page 58503]]

FDIC is the appropriate Federal Banking agency.\118\
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    \117\ 12 CFR 326.8, 326.1(a).
    \118\ 12 CFR 326.8 is applicable to ``all insured nonmember 
banks as defined in 12 CFR 326.1.'' Section 326.1 was revised to 
remove the definition of ``insured nonmember bank'' and replace it 
with the term ``FDIC-supervised institution'' or ``institution'', 
defined to mean any insured depository institution for which the 
FDIC is the appropriate Federal banking agency pursuant to section 
3(q) of the FDI Act (12 U.S.C. 1813(q). 83 FR 13839, 13842 (April 2, 
2018).
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    Section 390.354(a) states that the purpose of the regulation is to 
require State savings associations to establish and maintain procedures 
reasonably designed to assure and monitor compliance with the 
requirements of subchapter II of chapter 53 of title 31, United States 
Code, and the implementing regulations promulgated thereunder by the 
U.S. Department of the Treasury, 31 CFR part 103 (now superseded by 31 
CFR chapter X), commonly referred to as the Bank Secrecy Act. 
Similarly, Sec.  326.8(a) requires that all insured depository 
institutions for which the FDIC is the appropriate Federal banking 
agency establish and maintain procedures reasonably designed to assure 
and monitor their compliance with the same laws and regulations.
    Section 390.354(b) discusses the establishment of a BSA compliance 
program. Subparagraph (b)(1) states that State savings association 
shall develop and provide for the continued administration of a program 
reasonably designed to assure and monitor compliance with the 
recordkeeping and reporting requirements of the BSA. The compliance 
program must be written, approved by the State savings association's 
board of directors, and reflected in the minutes of the State savings 
association. Subparagraph (b)(2) states that each State savings 
association is subject to the requirements of 31 U.S.C. 5318(l) and its 
implementing regulations, which require the implementation of a 
customer identification program. Similarly, Sec.  326.8(b)(1) requires 
that all insured depository institutions for which the FDIC is the 
appropriate Federal banking agency have a written BSA compliance 
program, approved by the board of directors, and reflected in the board 
minutes. Section 326.8(b)(2) also requires all insured depository 
institutions for which the FDIC is the appropriate Federal banking 
agency to have a customer identification program.
    Section 390.354(c) states that a BSA compliance program shall: 
Provide for a system of internal controls; provide for independent 
testing; designate individual(s) responsible for BSA compliance; and 
provide training. Like Sec.  390.354, Sec.  326.8(c) requires that all 
insured depository institutions for which the FDIC is the appropriate 
Federal banking agency have these same BSA compliance program 
components.
    Effective May 2, 2018, the FDIC amended Sec. Sec.  326.0-326.4 
\119\ and rescinded the corresponding OTS regulations.\120\ As of this 
date, the recently amended Sec.  326.1 \121\ defines both ``FDIC-
supervised insured depository institution'' and ``institution'' as any 
insured depository institution for which the FDIC is the appropriate 
Federal banking agency pursuant to 12 U.S.C. 1813(q)(2).
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    \119\ 12 CFR 326.0-326.4
    \120\ 83 FR at 13842-3.
    \121\ 12 CFR 326.1 (2019).
---------------------------------------------------------------------------

    The proposed rule would amend Sec.  326.8 to include both insured 
State savings associations and State nonmember banks for all of Sec.  
326.8 by replacing the terms ``insured nonmember bank'' and ``bank'' 
currently in Sec.  326.8 with the term ``FDIC supervised institution'' 
or ``institution.'' Having made the technical amendment to Sec.  326.8, 
Sec.  390.354 will be duplicative and the FDIC proposes to rescind and 
remove Sec.  390.354.\122\
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    \122\ The FDIC also proposes to amend the definition in 12 CFR 
326.1 to apply to all entities for which the FDIC is the appropriate 
Federal banking agency pursuant to section 3(q) of the FDI Act. This 
revision would clarify that foreign banks having a State-chartered 
insured branch are also subject to part 326 of the FDIC's 
regulations. This change is not substantive because the term 
``insured depository institution'' already includes insured 
branches. See 12 U.S.C. 1813(a)(1), (c)(2), and (s)(3).
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S. 12 CFR 390.355--Suspicious Activity Reports and Other Reports and 
Statements

    In order to streamline FDIC regulations and reduce regulatory 
burden, the FDIC proposes to rescind and remove Sec.  390.355 because 
it is unnecessary, redundant, and duplicative. In addition, the FDIC 
proposes to make conforming changes to Sec. Sec.  353.1 and 353.3 to 
make part 353 of the FDIC's regulations applicable to all FDIC-
supervised institutions.
    Section 390.355 requires State savings associations and service 
corporations to make certain reports. Specifically, subsection 390.355 
(a) requires State savings associations to make periodic reports to the 
FDIC in such a manner and on such forms as the FDIC may prescribe. 
Subsection 390.355(b) prohibits State savings associations from making 
false or misleading statements or omissions. Subsection 390.355(c) 
requires a State Savings association maintaining bond insurance 
coverage to promptly notify its carrier and file a proof of loss 
concerning any covered losses more than twice the deductible amount. 
Subsection 390.355(d) requires State savings associations to file a 
Suspicious Activity Report (``SAR'') when they detect a known or 
suspected violation of Federal law or a suspicious transaction related 
to a money laundering activity or a violation of law or regulation. 
Subsection 390.355(e) requires State savings associations within the 
jurisdiction of a Federal Home Loan Bank (FHLB) to provide data from 
the Consolidated Reports of Condition or Income (Call Report) upon the 
request of the FHLB.
1. Sec.  390.355(a) Periodic Reports
    Section 390.355(a) requires State savings associations to make such 
periodic or other reports to the FDIC in the manner and on the forms 
the FDIC requires. The FDIC may provide that reports filed for other 
purposes may also satisfy requirements imposed under Sec.  390.355.
    There are a number of Federal statutes that require reporting by 
State savings associations. For example, section 5 of HOLA requires 
``each association to make reports of conditions to the appropriate 
Federal banking agency which shall be in a form prescribed by the 
appropriate Federal banking agency . . . .'' and sets forth the type of 
information such reports shall contain.\123\ Section 7(a)(3) of the FDI 
Act requires all insured depository institutions to make four annual 
reports of condition to their appropriate Federal banking agency.\124\ 
In addition, section 36 of the FDI Act \125\ and the FDIC's 
implementing regulations at part 363 \126\ require insured depository 
institutions above a specified asset threshold to have annual 
independent audits and to submit annual reports and audited financial 
statements to the FDIC. Section 37 of the FDI Act requires financial 
statements, capital standards, and other reports provided to the FDIC 
to be prepared in a manner consistent with generally accepted 
accounting procedures.\127\ Finally, The Interagency Policy Statement 
on External Audit Programs of Banks and Savings

[[Page 58504]]

Associations \128\ provides unified interagency guidance regarding 
independent external auditing programs of insured depository 
institutions that community banks and savings associations that do not 
have to comply with part 363 (because they do not meet the size 
threshold) or that are not otherwise subject to audit requirements by 
order, agreement, statute, or FDIC regulations.
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    \123\ 12 U.S.C. 1464(v)(1). Although 12 U.S.C. 1464 is titled 
``Federal savings associations'', section 1464(v) describes the 
reporting obligations of ``[e]ach association'' and refers to the 
requirements of the ``appropriate Federal banking agency'' rather 
than only the OCC. The FDIC is the appropriate Federal banking 
agency for State savings associations. 12 U.S.C. 1813(q).
    \124\ 12 U.S.C. 1817(a)(3).
    \125\ 12 U.S.C. 1831m.
    \126\ 12 CFR part 363.
    \127\ 12 U.S.C. 1831n.
    \128\ See FIL-96-99 (Oct. 25, 1999); 64 FR 57094 (Oct. 22, 
1999).
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    For these reasons, Sec.  390.355(a) is not necessary and the FDIC 
proposes that it be rescinded and removed.
2. Sec.  390.355(b) False or Misleading Statements or Omissions
    Section 390.355(b) prohibits State savings associations from making 
false or misleading statements or omissions to the FDIC and to auditors 
of State savings associations.
    By statute, whoever makes any materially false, fictitious, or 
fraudulent statement or representation in a matter involving the 
executive branch of the U.S. government, is subject to imprisonment for 
up to five years.\129\
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    \129\ 18 U.S.C. 1001(a)(2) (up to 8 years if the offense 
involves terrorism).
---------------------------------------------------------------------------

    In addition, the OCC has promulgated a rule on this topic 
applicable to all savings associations, Federal or State. The Dodd-
Frank Act provided the OCC with rulemaking authority relating to both 
State and Federal savings associations.\130\ On August 9, 2011, the OCC 
published in the Federal Register a final rule that contained a 
provision, 12 CFR 163.180(b), that is substantially similar to Sec.  
390.355(b) and that applies to both State and Federal savings 
associations.\131\ It prohibits all savings associations from knowingly 
making false or misleading statements to their ``appropriate Federal 
banking agency'' and to those auditing the institution.\132\ The OCC's 
prohibition at Sec.  163.180(b) effectively prohibits a State savings 
association from making false or misleading statements to the FDIC or 
to any party auditing or preparing or reviewing its financial 
statements. Because the prohibition contained in the OCC's regulation 
is applicable to all savings associations and is substantially similar 
to the rule found at Sec.  390.355(b), and enforceable by the FDIC 
pursuant to section 8 of the FDI Act,\133\ the FDIC has concluded that 
Sec.  390.355(b) is duplicative and unnecessary, and the FDIC proposes 
to rescind and remove this section.
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    \130\ See 12 U.S.C. 5412(b)(2)(B)(i)(II).
    \131\ 76 FR 49047 (Aug. 9, 2011).
    \132\ The FDIC is the ``appropriate Federal banking agency'' for 
any State savings association. See 12 U.S.C. 1813(q).
    \133\ 12 U.S.C. 1818.
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3. Sec.  390.355(c) Notifications of Loss and Reports of Increase in 
Deductible Amount of Bond
    Subsection 390.355(c) requires a State Savings association 
maintaining bond insurance coverage to promptly notify its carrier and 
file a proof of loss concerning any covered losses more than twice the 
deductible amount. The FDIC generally requires fidelity bond insurance 
for insured depository institutions and considers whether fidelity bond 
insurance is in place when analyzing the general character and fitness 
of the management of a de novo financial institution applying for 
deposit insurance.\134\ However, the FDIC does not otherwise impose a 
reporting requirement such as the one contained in Sec.  
390.355(c).\135\ Staff was unable to find a provision of State law or 
in the regulations of any Federal banking agency containing a 
prescriptive filing requirement such as that contained in Sec.  
390.355(c).
---------------------------------------------------------------------------

    \134\ See 12 U.S.C. 1816; FDIC Statement of Policy on 
Applications for Deposit Insurance, 63 FR 44756 (Aug. 20, 1998), 
amended at 67 FR 79278 (Dec. 27, 2002), available at https://www.fdic.gov/regulations/laws/rules/5000-3000.html.
    \135\ See Statement of Policy on Applications for Deposit 
Insurance, supra note 134 (``An insured depository institution 
should maintain sufficient fidelity bond coverage on its active 
officers and employees to conform with generally accepted industry 
practices. Primary coverage of no less than $1 million is ordinarily 
expected. Approval of the application may be conditioned upon 
acquisition of adequate fidelity coverage prior to opening for 
business.'').
---------------------------------------------------------------------------

    Therefore, on the basis of parity and reduction of the regulatory 
burden for State savings associations, the FDIC proposes to rescind and 
remove Sec.  390.355(c).
4. Sec.  390.355(d) Suspicious Activity Reports
    Subsection 563.180(d) was transferred to the FDIC and redesignated 
as subsection 390.355(d). The section, which regulates SARs, was 
enacted in concert with the other Federal banking agencies, including 
the OCC,\136\ the FRB,\137\ and the FDIC,\138\ as well as the Financial 
Crimes Enforcement Network (FinCEN).\139\ These entities issued 
substantially similar proposals, which became effective on April 1, 
1996. The purpose of the OTS's regulation was to revise its rule on the 
reporting of known or suspected criminal conduct and suspicious 
activities by the savings associations under its supervision. The final 
rule developed a single form, the SAR, for reporting known or suspected 
Federal criminal law violations and transactions that an institution 
suspects involve money laundering or violates the BSA.
---------------------------------------------------------------------------

    \136\ Minimum Security Devices and Procedures, Reports of 
Suspicious Activities, and Bank Secrecy Act Compliance Program, 61 
FR 4332 (Feb. 5, 1996).
    \137\ Membership of State Banking Institutions in the Federal 
Reserve System; International Banking Operations; Bank Holding 
Companies and Change in Control; Reports of Suspicious Activities 
Under Bank Secrecy Act, 61 FR 4338 (Feb. 5, 1996).
    \138\ Suspicious Activity Reports, 61 FR 6095 (Feb. 16, 1996).
    \139\ Amendment to the Bank Secrecy Act Regulations; Requirement 
to Report Suspicious Transactions, 61 FR 4326 (Feb. 5, 1996).
---------------------------------------------------------------------------

    Paragraph (1) of Sec.  390.355(d) states that the purpose and scope 
of the subsection is to ensure that State savings associations and 
service corporations file a SAR when they detect a known or suspected 
violation of Federal law or a suspicious transaction related to a money 
laundering activity or a violation of the BSA. Similarly, Sec.  353.1 
of the FDIC regulations states that its purpose is to ensure that all 
insured State nonmember banks file a SAR pursuant to the same laws and 
regulations.
    Paragraph (2) of subsection 390.355(d) is a definition section 
similar to the definitional section contained in Sec.  353.2 of the 
FDIC's regulations.
    Paragraph (3) of subsection 390.355(d) enumerates the four 
instances when a State savings association must file a SAR with FinCEN: 
(1) Insider abuse involving any amount; (2) violations aggregating 
$5,000 or more where a suspect can be identified; (3) violations 
aggregating $25,000 or more regardless of potential suspects; and (4) 
transactions aggregating $5,000 or more that involve potential money 
laundering or violations of the Bank Secrecy Act. Similarly, Sec.  
353.3 of the FDIC's regulations requires State nonmember banks to file 
SARs with FinCEN in the same four instances.
    Paragraph (4) of subsection 390.355(d) is reserved.
    Paragraph (5) of subsection 390.355(d) states the time by which a 
State savings association is required to file a SAR in various 
circumstances after the date of initial detection of facts that may 
constitute a basis for filing a SAR. Similarly, Sec.  353.3(b) requires 
State nonmember banks to file SARs with FinCEN within the same time 
limits.
    Paragraph (6) of subsection 390.355(d) encourages State savings 
associations to file a copy of the SAR with state and local law 
enforcement agencies where appropriate. Similarly, Sec.  353.3(c) 
encourages State nonmember banks to file a copy of the SAR with state 
and local law enforcement agencies where appropriate.
    Paragraph (7) of subsection 390.355(d) indicates that a State 
savings association

[[Page 58505]]

need not file a SAR for a robbery or burglary committed or attempted 
that is reported to appropriate law enforcement authorities. Similarly, 
Sec.  353.3(d) directs that State nonmember banks need not file a SAR 
for a robbery or burglary committed or attempted that is reported to 
appropriate law enforcement authorities.
    Paragraph (8) of subsection 390.355(d) states that a State savings 
association shall maintain a copy of any SAR filed along with 
supporting documentation for five years and shall make the supporting 
documentation available to appropriate law enforcement agencies upon 
request. Similarly, Sec.  353.3(e) directs a State nonmember banks to 
maintain a copy of any SAR filed and supporting documentation for five 
years and to make supporting documentation available to appropriate law 
enforcement agencies upon request.
    Paragraph (9) of subsection 390.355(d) states that the management 
of a State savings association shall promptly notify its board of 
directors, or a committee of directors or executive officers designated 
by the board of directors to receive notice of a SAR filing. Similarly, 
Sec.  353.3(f) directs that State nonmember banks shall promptly notify 
its board of directors, or a committee thereof, to receive notice of a 
SAR filing.
    Paragraph (9) of subsection 390.355(d) also states that if the 
subject of the SAR is a director or executive officer, the State 
savings association may not notify the suspect, pursuant to 31 U.S.C. 
5318(g)(2), but shall notify all directors who are not suspects. In 
this circumstance, Sec.  353.3 does not have analogous language; 
however, the FDIC relies on 31 U.S.C. 5813(g)(2) to achieve the same 
purpose. That section states:

    Reporting of suspicious transactions . . . (2) Notification 
prohibited (A) In general. If a financial institution or any 
director, officer, employee, or agent of any financial institution, 
voluntarily or pursuant to this section or any other authority, 
reports a suspicious transaction to a government agency (i) neither 
the financial institution, director, officer, employee, or agent of 
such institution (whether or not any such person is still employed 
by the institution), nor any other current or former director, 
officer, or employee of, or contractor for, the financial 
institution or other reporting person, may notify any person 
involved in the transaction that the transaction has been reported. 
. . .

    Paragraph (10) of subsection 390.355(d) states that a State savings 
association's failure to file a SAR in accordance with this section may 
subject the State savings association, its directors, officers, 
employees, agents, or other institution-affiliated parties to 
supervisory action. In this circumstance, Sec.  353.3 does not have 
analogous language. Although Sec.  353.3 does not explicitly provide a 
remedy for failure to file a SAR, the FDIC has enforcement authority 
for violations of law or regulation.\140\ Therefore, the FDIC is 
proposing to remove subsection 390.355(d)(10) in its entirety because 
it is unnecessary.
---------------------------------------------------------------------------

    \140\ See 12 U.S.C. 1818.
---------------------------------------------------------------------------

    Paragraph (11) of subsection 390.355(d) states that a State savings 
association may obtain SARs and the instructions from the appropriate 
FDIC region as defined in Sec.  303.2 of the FDIC's regulations. In 
this circumstance, Sec.  353.3 does not have analogous language. 
However, FDIC-supervised institutions can obtain SAR forms 
electronically. Specifically, 31 CFR 1010.306(e) states:

    Forms to be used in making the reports required by Sec.  
1010.311, Sec.  1010.313, Sec.  1010.350, Sec.  1020.315, Sec.  
1021.311, or Sec.  1021.313 of this chapter may be obtained from BSA 
E-Filing System. Forms to be used in making the reports required by 
Sec.  1010.340 may be obtained from the U.S. Customs and Boarder 
Protection or FinCEN.

Since the OTS's rule went into effect, FinCEN converted to the BSA E-
Filing System for filing SARs for all financial institutions.\141\ This 
provision of the transferred OTS rule is now obsolete as forms are no 
longer available from FDIC regions.
---------------------------------------------------------------------------

    \141\ See https://bsaefiling.fincen.treas.gov/main.html.
---------------------------------------------------------------------------

    Paragraph (12) of subsection 390.355(d) states that SARs are 
confidential and any institution or person subpoenaed or otherwise 
requested to disclose a SAR or the information contained in a SAR shall 
decline to produce the SAR or to provide any information that would 
disclose that a SAR has been prepared or filed, citing this paragraph 
(d), applicable law (e.g., 31 U.S.C. 5318(g)), or both, and shall 
notify the FDIC. Similarly, Sec.  353.3(g) directs that State nonmember 
banks maintain the confidentiality of SARs, decline to disclose a SAR 
or the information contained in a SAR or information concerning the 
existence of a SAR, and notify the FDIC.
    Paragraph (13) of subsection 390.355(d) states that the safe harbor 
provision of 31 U.S.C. 5318(g), which exempts any financial institution 
that makes a disclosure of any possible violation of law or regulation 
from liability under any law or regulation of the United States, or any 
constitution, law or regulation of any state or political subdivision, 
covers all reports of suspected or known criminal violations and 
suspicious activities to law enforcement and financial institution 
supervisory authorities, including supporting documentation, regardless 
of whether such reports are filed pursuant to this paragraph (d), or 
are filed on a voluntary basis. Similarly, Sec.  353.3(h) contains 
similar safe harbor language.
    For the above-stated reasons, the FDIC proposes to rescind and 
remove Sec.  390.355(d).
5. Sec.  390.355(e) Adjustable-Rate Mortgage Indices
    Section 390.355(e) requires State savings associations within the 
jurisdiction of a FHLB to provide data from the Call Report upon the 
request of the FHLB. The FDIC is required under section 402(e)(3) of 
FIRREA ``to take such action as may be required as may be necessary to 
assure that the indexes prepared by the . . . Federal home loan banks 
immediately prior to the enactment of this subsection and used to 
calculate the interest rate on adjustable rate mortgage instruments 
continue to be available.'' \142\ As noted above, the Dodd-Frank Act 
provided the OCC with rulemaking authority relating to both State and 
Federal savings associations.\143\ On August 9, 2011, the OCC published 
in the Federal Register a final rule that contained a provision, 12 CFR 
163.180(e), which is substantially similar to Sec.  390.355(e) and that 
applies to both State and Federal savings associations.\144\ It 
requires all savings associations within the jurisdiction of that FHLB 
to report specified data items for the FHLB to use in calculating and 
publishing an adjustable-rate mortgage index.\145\
---------------------------------------------------------------------------

    \142\ See 12 U.S.C. 1437 nt.
    \143\ See 12 U.S.C. 5412(b)(2)(B)(i)(II).
    \144\ 76 FR 49047 (Aug. 9, 2011).
    \145\ 12 CFR 163.180(e).
---------------------------------------------------------------------------

    Because the provision contained in the OCC's regulation is 
applicable to all savings associations and is substantially similar to 
the rule found at Sec.  390.355(e), the FDIC has concluded that 3Sec.  
90.355(e) is duplicative and unnecessary, and the FDIC proposes to 
rescind and remove this section.
6. Amendments to Other Rules
    The proposed rule would amend FDIC Sec. Sec.  353.1 and 353.3 to 
include both insured State savings associations and State nonmember 
banks by replacing the terms ``insured nonmember banks'' and ``bank'' 
currently in the regulation with the term ``FDIC-supervised 
institution.'' With these amendments, Sec.  390.355 is unnecessary and, 
for the reasons stated

[[Page 58506]]

above, the FDIC proposes to rescind and remove Sec.  390.355 in its 
entirety.

T. 12 CFR 390.356--Bonds for Directors, Officers, Employees and Agents; 
Form of and Amount of Bonds

    Section 390.356 requires fidelity bond coverage for directors, 
officers, employees, and agents of State savings associations. The FDIC 
proposes to rescind and remove Sec.  390.356, to conform requirements 
for State savings associations with requirements for State nonmember 
banks, and to reduce regulatory burden. State savings associations may, 
however, consult FDIC guidance concerning best practices regarding 
fidelity bond coverage.\146\
---------------------------------------------------------------------------

    \146\ See, e.g., Risk Management Manual of Examination Policies 
Sec.  4.4 (Fidelity and Other Indemnity Protection), available at 
https://www.fdic.gov/regulations/safety/manual/section4-4.pdf..
---------------------------------------------------------------------------

    Section 390.356(a) requires each State savings association to 
maintain fidelity bond coverage for those directors, officers, 
employees, and agents who have control over or access to cash, 
securities, or other property of the State savings association. Section 
390.356(b) requires the management of each State savings association to 
determine the amount of fidelity bond coverage that would be considered 
safe and sound, commensurate with its assessment of the association's 
potential risk exposure. Additionally, paragraph (b) requires the State 
savings association's board of directors to approve the management's 
determination. Section 390.356(c) provides that the State savings 
association may maintain bond coverage through riders, endorsements, or 
supplements, beyond that provided by the insurance underwriting 
industry's standard forms if the State savings association's board 
determines that additional coverage is warranted. Section 390.356(d) 
provides that the State savings association's board of directors must 
approve the State savings association's fidelity bond coverage, review 
such coverage annually, and document its review and approval in board 
meeting minutes.
    Neither the FDI Act nor the FDIC's regulations for State nonmember 
banks contain similar prescriptive language concerning fidelity bonds 
that would be applicable to State savings associations. Section 18(e) 
of the FDI Act authorizes, but does not mandate, that the FDIC require 
an insured depository institution to ``provide protection and indemnity 
against burglary, defalcation, and other similar insurable losses.'' 
\147\ The FDIC generally requires fidelity bond insurance for insured 
depository institutions and considers whether fidelity bond insurance 
is in place when analyzing the general character and fitness of the 
management of a de novo financial institution applying for deposit 
insurance.\148\ However, other than expressing general guidelines 
regarding the appropriate level of insurance coverage, the FDIC does 
not otherwise impose requirements such as the ones contained in Sec.  
390.356.\149\ There are no other relevant provisions concerning 
fidelity bond coverage or the use of fidelity bond proceeds. And, there 
is no analogous statutory or regulatory language for State nonmember 
banks that mirrors Sec.  390.356. Therefore, for supervisory 
consistency between State nonmember banks and State savings 
associations, and to reduce regulatory burden, the FDIC proposes that 
Sec.  390.356 be rescinded and removed.
---------------------------------------------------------------------------

    \147\ See 12 U.S.C. 1828(e).
    \148\ See 12 U.S.C. 1816; Statement of Policy on Applications 
for Deposit Insurance, supra note 134.
    \149\ See Statement of Policy on Applications for Deposit 
Insurance, supra note 134. Generally, an order granting Federal 
deposit insurance would include fidelity coverage as a condition, 
but would not specify an amount. See also Resolution Seal No. 
071098, B(2)(a)(iii) and (d) (Dec. 3, 2002); Memorandum to the Board 
regarding Delegations of Authority, Ex. 1, Delegations of Authority: 
Notices and Filings, subpart B, n. B-1 6(11) (Nov. 25, 2002), 
available at https://www.fdic.gov/regulations/laws/matrix/exhibit1.html.
---------------------------------------------------------------------------

U. 12 CFR 390.357--Bonds for Agents

    Section 390.357,\150\ provides that, in lieu of a bond for 
directors, officers, employees, and agents of State savings 
associations referenced in Sec.  390.356, the State savings 
association's board may approve a bond for its agents. This bond must 
be twice the average monthly collections of such agent, and the agent 
is required to settle its account with the State savings association at 
least monthly.
---------------------------------------------------------------------------

    \150\ 12 CFR 390.357.
---------------------------------------------------------------------------

    Similar to Sec.  390.356, there are not analogous statutory or 
regulatory requirements for State nonmember banks that resemble Sec.  
390.357. Neither sections 18(e) or 18(k) of the FDI Act nor Sec. Sec.  
326.2 or 326.3 of FDIC's regulations require or provide for bond 
coverage. State savings associations may, however, consult FDIC 
guidance concerning best practices regarding fidelity bond 
coverage.\151\ Therefore, in the interest of consistency between State 
nonmember banks and State savings associations, and to reduce 
regulatory burden, the FDIC proposes that Sec.  390.357 be rescinded 
and removed.\152\
---------------------------------------------------------------------------

    \151\ See, e.g., Risk Management Manual of Examination Policies 
Sec.  4.4, supra note 146.
    \152\ State savings associations may, however, consult FDIC 
guidance concerning best practices regarding fidelity bond coverage. 
See Risk Management Manual of Examination Policies Sec.  4.4, supra 
note 146.
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V. 390.358 Conflicts of Interest

    12 CFR 390.358 is the re-designation of the transferred OTS 
regulation prohibiting persons including directors, officers, or 
employees of State savings associations, or others who have power to 
direct its management or policies or who otherwise owe a fiduciary duty 
to a State savings association from advancing personal or business 
interests, or those of others, at the expense of the State savings 
association. The section also prescribes how these individuals should 
interact with the board of directors of a State savings association if 
they have an interest in a matter or transaction requiring board 
consideration.
    While section 8(e) of the FDI Act \153\ authorizes enforcement 
actions against directors and officers who breach their fiduciary 
duties to the depository institution, the existence and scope of a 
fiduciary duty generally is a matter of state law. The FDIC proposes to 
rescind and remove Sec.  390.358 because such conduct is governed by 
either statutory or common law.\154\
---------------------------------------------------------------------------

    \153\ 12 U.S.C. 1818(e).
    \154\ See, e.g., 12 U.S.C. 1821(k); Atherton v. FDIC, 519 U.S. 
213 (1997); CO Rev Stat Sec.  7-108-401 and Sec.  11-41-134 (2017); 
IN Code Sec.  23-1-35-1; Sec.  28-10-1-3; Sec.  28-13-11-1 (2018); 
LA Rev Stat Sec.  6:291; Sec.  12:1-830 (2018); MO Rev. Stat Title 
XXIV Sec.  369.109; NH Rev Stat Sec.  293-A:8.30 (2018); NJ 17:9A-
250; NY Banking Law Sec.  398-B (2018); Ohio Rev. Code 1701.59, 
.641, 1105.11; PA Consol. Stat, Title 15, Sec.  512; SC Code Sec.  
34-28-440 (2018); WI Stat Sec.  180.0828; Sec.  215.525 (2018).
---------------------------------------------------------------------------

W. 390.359 Corporate Opportunity

    Section 390.359 is the re-designation of the OTS regulation 
prohibiting persons, including directors and officers or others who 
have power to direct its management or policies or who otherwise owe a 
fiduciary duty to a State savings association from taking advantage of 
corporate opportunities belonging to the State savings association. 
Such conduct is governed by either statutory or common law.\155\ While 
section 8(e) of the FDI Act \156\ authorizes enforcement actions 
against directors and officers who breach their fiduciary duties to the 
depository institution, the existence and scope of a fiduciary duty 
generally is a matter of state law. The FDIC proposes to rescind and 
remove Sec.  390.358 because such conduct is governed by either 
statutory or common law.
---------------------------------------------------------------------------

    \155\ See supra note 154.
    \156\ 12 U.S.C. 1818(e).

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[[Page 58507]]

X. 12 CFR 390.360-.368--Change of Director or Senior Executive Officer

    Section 914 of FIRREA added section 32 of the FDI Act.\157\ Section 
32 requires certain insured depository institutions and insured 
depository institution holding companies to furnish the appropriate 
Federal banking agency with at least 30 days' notice prior to adding 
any individual to the board of directors or employing any individual as 
a senior executive officer. Section 32 was amended on September 30, 
1996, by the Economic Growth and Regulatory Paperwork Reduction Act of 
1996 (EGRPRA).\158\ Section 209 of the EGRPRA changed the circumstances 
under which a notice must be filed and also permitted the appropriate 
Federal banking agency no more than 90 days to issue a notice of 
disapproval of the proposed addition of a director or employment of a 
senior executive officer. On September 25, 1998, the OTS, then the 
appropriate Federal banking agency for all savings associations, issued 
a final rule relating to the changes made to section 32 by EGRPRA and 
added implementing regulations which replaced 12 CFR 574.9 with 
Sec. Sec.  563.550 through 563.590. These regulations were transferred 
then to the FDIC, as the appropriate Federal banking agency for State 
savings associations. The implementing regulations are now found at 
Sec. Sec.  390.360 through 390.368.\159\
---------------------------------------------------------------------------

    \157\ 12 U.S.C. 1831i.
    \158\ Public Law 104-208, 110 Stat. 3009, Sept. 30, 1996.
    \159\ 63 FR 51272 (Sept. 25, 1998).
---------------------------------------------------------------------------

    Subpart F of part 303 of the FDIC's regulations imposes similar 
notice filing requirements on insured State nonmember banks. After 
careful review, for the reasons described below, the FDIC proposes to 
amend subpart F of part 303 so that it applies to State savings 
associations as well as State nonmember banks and to rescind and remove 
Sec. Sec.  390.360 through 390.368 as unnecessary and duplicative. The 
FDIC believes that the section 32 of the FDI Act and the proposed 
amendments to subpart F of part 303 sufficiently address the 
circumstances and requirements for both State nonmember banks and State 
savings associations to provide advance notification to the FDIC before 
appointing or employing directors and senior executive officers.
1. 12 CFR 390.360--Change of Director or Senior Executive Officer
    Section 390.360 is an introductory section. It describes the 
statutory basis for and the content and purpose of the remaining 
Sec. Sec.  390.361 through 390.368. The content of this section is 
substantively identical to Sec.  303.100. Therefore, the FDIC proposes 
that Sec.  390.360 be rescinded and removed.
2. 12 CFR 390.361--Applicable Definitions
    Section 390.361 provides definitions of certain terms that apply to 
Sec. Sec.  390.360 through 390.368. This section defines the terms 
director, senior executive officer and troubled condition. Section 
303.101 provides substantively similar definitions for the same three 
terms. The FDIC does not believe Sec.  390.361 is necessary in light of 
Sec.  303.101, and for this reason, the FDIC proposes to rescind and 
remove Sec.  390.361.
3. 12 CFR 390.362--Who must give prior notice?
    Section 390.362 outlines the conditions under which prior 
notification must be given to the FDIC. Paragraph (a) requires a State 
savings association to provide notice prior to adding or replacing 
board members or senior executive officers if it: (1) Does not comply 
with all minimum capital requirements; (2) is in troubled condition; or 
(3) if it has been notified by the FDIC that a notice is required. 
These three conditions are substantively identical to those contained 
in Sec.  303.102, which pertains to State nonmember banks. When part 
303, subpart F is amended to apply to State savings associations, 
paragraph (a) will become unnecessary and duplicative.
    Paragraph (b) allows an individual seeking election to the board of 
directors of a State savings association, without a nomination by the 
institution's management, to submit an after-the-fact notice to the 
FDIC within seven days of being elected. Section 303.102(c)(2) contains 
a similar regulation with the requirement that a notice must be 
submitted within two business days after election. Thus paragraph (b) 
is duplicative and unnecessary. For foregoing reasons, the FDIC 
proposes to rescind and remove Sec.  390.362.
4. 12 CFR 390.363--What procedures govern the filing of my notice?
    Section 390.363 references the procedures found in Sec. Sec.  
390.103 through 390.110 as governing the filing of a notice to the 
FDIC. Again, these sections are substantively similar to the procedural 
rules found in subpart A of part 303. Because subpart A of part 303 
governs general procedures for submitting filings, including notices, 
to the FDIC, Sec.  390.363 is unnecessary and duplicative. For this 
reason and because maintaining alternative procedures for State savings 
associations and State nonmember banks would be confusing and 
burdensome, the FDIC proposes to rescind and remove Sec.  390.363.
5. 12 CFR 390.364--What information must I include in my notice?
    Section 390.364 establishes the required content for prior notices 
filed pursuant to section 32 of the FDI Act. Paragraph (a) requires the 
submission of certain biographical information, a set of fingerprints 
and any other information that the FDIC requires. Paragraph (d)(1) of 
Sec.  303.102 requires substantively similar information.\160\
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    \160\ Section 303.102(d)(1) does not specifically contain a 
fingerprinting requirement, but does provide that ``[t]he FDIC may 
require additional information.'' In practice, the FDIC obtains 
fingerprints to facilitate background checks performed in connection 
with applications and notices submitted to the FDIC, including: 
Applications for Federal deposit insurance, notices of acquisition 
of control, requests for participation in the banking industry by 
individuals with certain criminal convictions, and notices to 
replace board members or senior management in certain institutions 
See FIL-21-2018, Electronic Fingerprinting for Background Checks 
Related to Applications (Apr. 17, 2018). Thus, the FDIC is 
clarifying that fingerprints may be required in connection with the 
filings noted above.
---------------------------------------------------------------------------

    Paragraph (b) of Sec.  390.364 allows the FDIC to modify the 
requirements listed in paragraph (a), similar to paragraph (d)(2) of 
Sec.  303.102. Amending Sec.  303.102 to also apply to State savings 
associations will make Sec.  390.364 unnecessary and duplicative. For 
this reason, the FDIC proposes to rescind and remove Sec.  390.364.
6. 12 CFR 390.365--What procedures govern the FDIC's review of my 
notice for completeness?
    Section 390.365 outlines the procedures and timelines the FDIC will 
follow in reviewing a notice of change of director or senior officer. 
Paragraph (a) states that the FDIC will notify the applicant in writing 
of the date on which the FDIC received a complete notice. This 
provision is substantively similar to paragraph (a) of Sec.  303.103. 
Paragraph (b) of Sec.  390.365 states that an applicant may be asked to 
provide additional information before an application is deemed 
complete, and failure to provide such information may cause the notice 
filing to be deemed withdrawn. This provision is substantively similar 
to Sec.  303.11. If subpart F of part 303 is amended to apply to State 
savings associations, Sec.  390.365 will become duplicative and 
unnecessary. For this reason, the FDIC proposes to rescind and remove 
Sec.  390.365.

[[Page 58508]]

7. 12 CFR 390.366--What standards and procedures will govern the FDIC 
review of the substance of my notice?
    Section 390.366 outlines the standards and procedures under which a 
notice of change of director or senior officer will be reviewed by the 
FDIC. This section is substantively identical to paragraph (c) of Sec.  
303.103. If subpart F of part 303 is amended to apply to State savings 
associations, Sec.  390.366 will become duplicative and unnecessary. 
For this reason, the FDIC proposes to rescind and remove Sec.  390.366.
8. 12 CFR 390.367--When may a proposed director or senior executive 
officer begin service?
    Section 390.367 establishes the conditions and timelines for a 
proposed director or senior executive officer to begin service. 
Paragraph (a) establishes that a director or senior executive officer 
may begin service 30 days after the FDIC receives all required 
information, unless the FDIC has disapproved the notice or the FDIC has 
extended its review period. Paragraph (b) establishes that a director 
or senior executive officer may begin service any time after the FDIC 
provides notice that it will not disapprove the notice. Both of these 
paragraphs are substantively similar to the conditions and timelines 
established under paragraphs (a) and (b) of Sec.  303.103. If subpart F 
of part 303 is amended to apply to State savings associations, Sec.  
390.367 will become duplicative and unnecessary. For this reason, the 
FDIC proposes to rescind and remove Sec.  390.367.
9. 12 CFR 390.368--When will the FDIC waive the prior notice 
requirement?
    Section 390.398 outlines the conditions under which the FDIC may 
waive the prior notification requirement. Paragraph (a) establishes 
that the FDIC may provide a waiver of prior notice if it issues a 
written finding that a delay would (1) threaten the safety or soundness 
of the institution, (2) not be in the public interest, or (3) that 
extraordinary circumstances exist to justify a waiver. Paragraph (b) 
allows for an automatic waiver under certain circumstances for 
directors elected without the nomination of management. Paragraph (c) 
allows for the FDIC to subsequently deny a notice filed after a waiver 
within 30 days. Paragraph (c) of Sec.  303.102 provides for 
substantively identical criteria for the waiver of prior notice for 
State nonmember banks. If subpart F of part 303 is amended to apply to 
State savings associations, Sec.  390.368 will become duplicative and 
unnecessary. For this reason, the FDIC proposes to rescind and remove 
Sec.  390.368.

III. Request for Comments

    The FDIC invites comments on all aspects of this proposed 
rulemaking, and specifically requests comments on the following:
    Question 3: What impact, positive or negative, can you foresee in 
the FDIC's proposal to rescind certain provisions of Subpart S? Please 
substantiate your response.
    Written comments must be received by the FDIC no later than 
December 2, 2019.

IV. Regulatory Analysis and Procedure

A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
(PRA),\161\ the FDIC may not conduct or sponsor, and the respondent is 
not required to respond to, an information collection unless it 
displays a currently valid Office of Management and Budget (OMB) 
control number.
---------------------------------------------------------------------------

    \161\ 44 U.S.C. 3501, et seq.
---------------------------------------------------------------------------

    The proposed rule would rescind and remove from the FDIC's 
regulations part 390, subpart S. The proposed rule will not create any 
new or revise any existing information collections pursuant to the PRA. 
Therefore, no information collection request will be submitted to the 
OMB for review.

B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires that, in connection 
with a notice of proposed rulemaking, an agency prepare and make 
available for public comment an initial regulatory flexibility analysis 
that describes the impact of the proposed rule on small entities.\162\ 
However, a regulatory flexibility analysis is not required if the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities, and publishes its 
certification and a short explanatory statement in the Federal 
Register, together with the rule. The Small Business Administration 
(SBA) has defined ``small entities'' to include banking organizations 
with total assets of less than or equal to $600 million.\163\ 
Generally, the FDIC considers a significant effect to be a quantified 
effect in excess of 5 percent of total annual salaries and benefits per 
institution, or 2.5 percent of total noninterest expenses. The FDIC 
believes that effects in excess of these thresholds typically represent 
significant effects for FDIC-supervised institutions. For the reasons 
provided below, the FDIC certifies that the proposed rule, if adopted 
in final form, would not have a significant economic impact on a 
substantial number of small banking organizations. Accordingly, a 
regulatory flexibility analysis is not required.
---------------------------------------------------------------------------

    \162\ 5 U.S.C. 601, et seq.
    \163\ The SBA defines a small banking organization as having 
$600 million or less in assets, where ``a financial institution's 
assets are determined by averaging the assets reported on its four 
quarterly financial statements for the preceding year.'' See 13 CFR 
121.201 (as amended by 84 FR 34261, effective August 19, 2019). 
``SBA counts the receipts, employees, or other measure of size of 
the concern whose size is at issue and all of its domestic and 
foreign affiliates.'' See 13 CFR 121.103. Following these 
regulations, the FDIC uses a covered entity's affiliated and 
acquired assets, averaged over the preceding four quarters, to 
determine whether the FDIC-supervised institution is ``small'' for 
the purposes of RFA.
---------------------------------------------------------------------------

    As of June 30, 2019, the FDIC supervised 3,424 insured depository 
institutions, of which 2,665 are considered small banking organizations 
for the purposes of RFA. The proposed rule primarily affects 
regulations that govern State savings associations. There are 36 State 
savings associations considered to be small banking organizations for 
the purposes of the RFA.\164\
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    \164\ Based on data from the June 30, 2019, Call Report and 
Report of Assets and Liabilities of U.S. Branches and Agencies of 
Foreign Banks.
---------------------------------------------------------------------------

    As discussed previously in the SUPPLEMENTARY INFORMATION section, 
Sec.  390.330 requires a de novo State savings association, prior to 
commencing operations, to file its charter and bylaws with the FDIC for 
certification. The FDIC does not charter depository institutions, 
therefore the certification authority outlined in Sec.  390.330 does 
not conform with the FDIC's general authority. The OCC or State banking 
supervisors do charter depository institutions and therefore, may have 
similar charter and bylaw certification requirements for de novo 
savings associations. If the OCC or a State banking supervisor does not 
have similar charter and bylaw certification requirements for de novo 
savings associations, this aspect of the proposed rule could reduce 
recordkeeping and reporting requirements for future de novo savings 
associations. However, an analysis of de novo activity for savings 
associations shows that there has been only one in the last eleven 
years. The proposed rule would also eliminate the federal requirement 
for a state savings association to make available to its 
accountholders, on request, a copy of its bylaws. The nature of the 
requirements contained in Sec.  390.330 are typically addressed by 
state law. Depending on the state, elimination of this section could 
result in a small reduction in expenses. Therefore, this aspect of the

[[Page 58509]]

proposed rule is unlikely to pose significant effects on a substantial 
number of small, FDIC-supervised state savings associations.
    As discussed previously in the SUPPLEMENTARY INFORMATION section, 
Sec.  390.331 requires that every security issued by a State savings 
association include in its provisions a clear statement that the 
security is not insured by the FDIC. Although, the FDIC does not have a 
companion rule that requires state nonmember institutions to clearly 
state that a security is not insured by the FDIC, provisions of the FDI 
Act, FDIC regulations, and Statements of Policy clarify that securities 
are not insured by the FDIC. Moreover, the FDIC has issued two 
Statements of Policy, one regarding the sale of nondeposit investment 
products and one regarding the use of offering circulars, that are 
intended to prevent confusion on the part of customers and investors 
regarding these matters. Therefore, rescission of Sec.  390.331 would 
not substantively change deposit insurance coverage for state savings 
associations, or security disclosure practices. This aspect of the 
proposed rule is unlikely to pose significant effects on small, FDIC-
supervised state savings associations.
    As discussed previously in the SUPPLEMENTARY INFORMATION section, 
Sec.  390.332 addresses the application requirements for mergers, 
consolidations, purchases or sales of assets, and assumptions of 
liabilities that apply to State savings associations. The FDIC proposes 
to rescind Sec.  390.332 and to amend 12 CFR part 303, subpart D, the 
section of the FDIC's regulations governing merger transactions. The 
proposed amendments to subpart D would make that section applicable to 
any FDIC-supervised institution, including State savings associations, 
and would make other conforming changes. Because the proposed changes 
would not affect the application requirements and application content 
this aspect of the proposed rule is unlikely to pose any effects on 
small, FDIC-supervised state savings associations.
    As discussed previously in the SUPPLEMENTARY INFORMATION section, 
Sec.  390.333 prohibits State savings associations from making 
inaccurate representations about services, contracts, investments, or 
financial condition in their advertising. The prohibition of 
misrepresentations in advertising contained in Sec.  390.333 is 
substantially similar to the more general prohibition of unfair or 
deceptive acts or practices under section 5(a) of the Federal Trade 
Commission Act (section 5). The FDIC enforces this provision pursuant 
to its authority under section 8 of the FDI Act.\165\ The prohibition 
contained in section 5 is broader than Sec.  390.333 because it 
prohibits all ``unfair or deceptive acts or practices in or affecting 
commerce,'' and it applies to all FDIC-supervised institutions, not 
only State savings associations.\166\ Because the narrower prohibitions 
of Sec.  390.333 appear subsumed within the broader prohibitions of 
Section 5, the FDIC believes that this aspect of the proposed rule will 
not have any substantive effect on small, FDIC-supervised state savings 
associations.
---------------------------------------------------------------------------

    \165\ 12 U.S.C. 1818.
    \166\ 15 U.S.C. 45(a)(1).
---------------------------------------------------------------------------

    As discussed previously in the SUPPLEMENTARY INFORMATION section, 
Sec.  390.334 limits who may serve on the board of directors of a State 
savings association by providing that: A majority of the directors must 
not be employees of the State savings association or its affiliates; no 
more than two directors may come from the same family; and no more than 
one director may be an attorney with a particular law firm. This aspect 
of the proposed rule could reduce compliance requirements on small, 
FDIC-supervised state savings associations by enabling them to make 
changes to the composition of their board of directors if they so 
choose. Such a reduction of compliance requirements could benefit 
covered entities by enabling them to choose a board that best executes 
the fiduciary powers of the board of directors, and more effectively 
supports the financial health of the institution. However, rescinding 
Sec.  390.334 also potentially reduces the independence of boards of 
directors for small State savings associations thereby increasing risks 
to safety and soundness. The FDIC believes that the potential risks to 
safety and soundness for small FDIC-insured state savings associations 
that might result from rescinding Sec.  390.334 is ameliorated by 
periodic examinations of safety and soundness risk in management for 
covered institutions. Therefore, the FDIC believes that this aspect of 
the proposed rule will not have any significant effects on small, FDIC-
supervised state savings associations.
    As discussed previously in the SUPPLEMENTARY INFORMATION section, 
Sec.  390.335 is entitled ``Tying restriction exception'' and refers 
solely to the regulations issued by the FRB. Section 312(b)(2) of the 
Dodd-Frank Act transferred the authority to grant exceptions from the 
anti-tying regulations of HOLA to the FRB, rather than to the FDIC, 
upon the dissolution of the OTS.\167\ Therefore, rescinding Sec.  
390.335 would align the FDIC's regulations with the FDIC's general 
authority. Additionally, because the FRB maintains the authority to 
grant exceptions from the anti-tying regulations for Federal and State 
savings associations, this aspect of the proposed rule will have no 
substantive effect on small, FDIC-supervised state savings 
associations.
---------------------------------------------------------------------------

    \167\ 12 U.S.C. 5412(b)(2)(A).
---------------------------------------------------------------------------

    As discussed previously in the SUPPLEMENTARY INFORMATION section, 
Sec.  390.336 sets forth requirements with which a State savings 
association must comply when entering into an employment contract with 
its officers and other employees. Although there are no similar 
regulations for FDIC-supervised institutions, existing statutes, 
guidelines, and regulations have a similar effect on FDIC-supervised 
institutions, including State savings associations. Therefore, removal 
of Sec.  390.336 is unlikely to have any substantive effect on small, 
FDIC-supervised State savings associations.
    As discussed previously in the Supplementary Information section, 
Sec.  390.337 states only that State savings associations should ``see 
the regulations issued by Board of Governors of the Federal Reserve 
System'' for the applicable rules for transactions with affiliates. 
Because HOLA applies sections 23A and 23B of the Federal Reserve Act to 
State savings associations \168\ and because the FRB's Regulation 
W\169\ addresses the additional restrictions of HOLA applicable to 
State and Federal savings associations' transactions with their 
affiliates, the FDIC believes that this aspect of the proposed rule 
will not have any substantive effects on small, FDIC-supervised 
institutions.
---------------------------------------------------------------------------

    \168\ 12 U.S.C. 1468(a).
    \169\ The FDIC has interpreted the language ``in the same manner 
and to the same extent'' to include the application of Regulation W.
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.338 cross-referenced the FRB's Regulation O,\170\ with some 
additional modifications. Section 337.3 of the FDIC's regulations 
reference Regulation O to impose similar direct regulatory requirements 
on State nonmember banks. The FDIC proposes to rescind and remove Sec.  
390.338, to make minor conforming changes to Sec.  337.3 to clarify its 
applicability to State savings associations, and to make technical 
amendments to Sec.  337.3. Therefore, this aspect of the proposed rule 
is unlikely

[[Page 58510]]

to have any effect on small, FDIC-supervised institutions.
---------------------------------------------------------------------------

    \170\ 12 CFR part 215.
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.339 prohibits State savings associations from sponsoring an 
employee pension plan which, because of unreasonable costs or for any 
other reason, could lead to material financial loss or damage to the 
sponsor. The section further requires a State savings association that 
serves as a pension plan sponsor to retain detailed pension plan 
records and actuarial funding reports and to provide advance notice of 
a pension plan termination. The Interagency Safety and Soundness 
Guidelines explicitly identify compensation that could lead to material 
financial loss as an unsafe and unsound practice. Additionally, 
regulations on recordkeeping by the Pension Benefit Guaranty 
Corporation would apply to any pension plan offered by an FDIC-
supervised institution.\171\ Because FDIC-supervised institutions, 
including State savings associations, will continue to be subject to 
the Interagency Safety and Soundness Guidelines, as well as PBCG 
regulations, rescinding Sec.  390.339 is unlikely to substantively 
effect small, FDIC-supervised institutions.
---------------------------------------------------------------------------

    \171\ Public Law 109-280, 120 Stat. 780, 29 U.S.C. 1301 et seq.
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.340 generally prohibits the offer or sale of debt or equity 
securities issued by a State savings association or an affiliate of the 
State savings association at an office of the State savings association 
with the exception of equity securities issued in connection with the 
State savings association's conversion from mutual to stock form in a 
transaction that has been approved by the FDIC or if the sale is 
conducted in accordance with the conditions set forth in Sec.  390.340. 
The NDIP Statement of Policy \172\ provides guidelines for all sales of 
nondeposit products (such as annuities, mutual funds, and other 
securities) by depository institutions, including State savings 
associations. Additionally, the Offering Circular Statement of Policy 
provides guidelines for sales and distribution of bank securities. 
Therefore, the FDIC believes that rescission of Sec.  390.340 will not 
substantively change the offer or sale of debt or equity securities 
issued by a State savings associations or their subsidiaries. 
Therefore, this aspect of the proposed rule is unlikely to pose 
significant effects on small, FDIC-supervised state savings 
associations.
---------------------------------------------------------------------------

    \172\ See supra note 12.
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.341 provides application and notice procedures and form and 
content requirements for subordinate debt securities and mandatorily 
redeemable preferred stock that a State savings association seeks to 
include in its tier 2 capital. There is no corresponding requirement 
applicable to State nonmember banks. Many of the form and content 
requirements in Sec.  390.341 that are designed to prevent consumer 
confusion are included in the FDIC's Offering Circular Statement of 
Policy which covers FDIC-supervised institutions, including State 
savings associations. Small FDIC-supervised institutions, including 
State savings associations, are governed by the criteria for inclusion 
in tier 2 capital are included in the FDIC's capital rules in 12 CFR 
part 324.\173\ Therefore, this aspect of the proposed rule is unlikely 
to pose significant effects on small, FDIC-supervised state savings 
associations.
---------------------------------------------------------------------------

    \173\ See 12 CFR 324.20(d)(1).
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.342 states that Sec. Sec.  390.342 through 390.348 apply to 
capital distributions by a State savings association.\174\ Because the 
proposed rule would rescind Sec. Sec.  390.342 through 390.348, and 
would amend other FDIC regulations to make them applicable to State 
savings associations, the removal of Sec.  390.342 will not have any 
substantive effects on small, FDIC-supervised state savings 
associations.
---------------------------------------------------------------------------

    \174\ 12 CFR 390.342.
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.343 defines a ``capital distribution'' for the purposes of 
Sec. Sec.  390.342-348. Section 38 of the FDI Act \175\ applies to all 
insured depository institutions, and, among other things, generally 
prohibits an insured depository institution from making a capital 
distribution if, after making the distribution, the institution would 
be undercapitalized. Section also 38 defines a ``capital distribution'' 
to include certain dividends; repurchases, redemptions, retirements, or 
other acquisitions of shares or other ownership interests, including 
extensions of credit to finance an affiliated company's acquisition of 
such shares; and any other transaction that the Federal banking 
agencies find to be in substance a distribution of capital.\176\ Part 
303 of the FDIC's regulations implements the PCA provisions of section 
38 for insured State nonmember banks and insured branches of foreign 
banks. The proposed rule would amend Sec.  303.203 so that it expressly 
applies to State savings associations. The requirements of Sec. Sec.  
390.343(a) and (b) are substantively similar to requirements in section 
38 and the current, analogous FDIC regulations at Sec.  303.203. 
Section 390.343(e) incorporates FDI Act section 38(b)(2)(B)(iii), which 
authorizes the Federal banking agencies to, by order or regulation, 
deem as a ``capital distribution'' any transaction that the FDIC 
determines to be in substance a distribution of capital.\177\ 
Therefore, the proposed rule's rescission of these elements and 
amendments to Sec.  303.203 will have no effects on small, FDIC-
supervised state savings associations.
---------------------------------------------------------------------------

    \175\ 12 U.S.C. 1831o.
    \176\ 12 U.S.C. 1831o(b)(2)(B).
    \177\ 12 CFR 390.343(e), 12 U.S.C. 1831o(b)(2)(B)(iii).
---------------------------------------------------------------------------

    Section 390.343(c) further defines ``capital distribution'' to 
include any direct or indirect payment of cash or other property to 
owners or affiliates made in connection with a corporate restructuring, 
including the payment of cash or property to shareholders of another 
savings association of its holding company to acquire ownership in that 
savings association, other than by a distribution of shares.\178\ This 
prong of Sec.  390.343's definition of ``capital distribution'' is not 
matched by an analogous prong in section 38. Additionally, Sec.  
390.343(d) captures as a ``capital distribution'' any capital 
distribution that is charged against a State savings association's 
capital accounts if the State savings association would not be well 
capitalized following the distribution.\179\ As with payments made in 
connection with a corporate restructuring, this element of Sec.  
390.343's regulatory definition is not expressly addressed in section 
38. The proposed rule would rescind these requirements for small, FDIC-
supervised state savings associations. The FDIC believes that this 
aspect of the proposed rule is unlikely to substantively effect small, 
FDIC-supervised institutions. Additionally, the FDIC believes that 
small, FDIC-supervised savings association would benefit from the 
establishment of equal treatment of capital distributions for State 
nonmember banks and State savings associations. However, it is 
difficult to estimate these effects because it depends on the financial 
condition of, and future decisions of

[[Page 58511]]

senior management at, small FDIC-supervised savings associations.
---------------------------------------------------------------------------

    \178\ 12 CFR 390.343(c).
    \179\ 12 CFR 390.343(d).
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.344 adopts additional definitions specifically for the 
capital distribution provisions of Sec. Sec.  390.342 through 
390.348.\180\ Section 38 of the FDI Act \181\ applies to all insured 
depository institutions, and, among other things, generally prohibits 
an insured depository institution from making a capital distribution 
if, after making the distribution, the institution would be 
undercapitalized. Section 38 also defines a ``capital distribution'' to 
include certain dividends; repurchases, redemptions, retirements, or 
other acquisitions of shares or other ownership interests, including 
extensions of credit to finance an affiliated company's acquisition of 
such shares; and any other transaction that the Federal banking 
agencies find to be in substance a distribution of capital.\182\ Part 
303 of the FDIC's regulations implements the PCA provisions of section 
38 for insured state nonmember banks and insured branches of foreign 
banks, and definitions of terms for capital distribution provisions are 
contained in the FDIC's capital rules. The proposed rule would amend 
Sec.  303.203 so that it expressly applies to State savings 
associations. Therefore, the rescinding Sec.  390.344 is unlikely to 
have any substantive effects on small, FDIC-supervised state savings 
associations.
---------------------------------------------------------------------------

    \180\ 12 CFR 390.344.
    \181\ 12 U.S.C. 1831o.
    \182\ 12 U.S.C. 1831o(b)(2)(B).
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.345 establishes that a State savings association is required 
to file an application for a proposed capital distribution in certain 
circumstances, and in others is required to file a notice. The 
application requirements of Sec.  303.203 are analogous to those 
imposed on State savings associations by Sec.  390.345(a)(3), as both 
sections require applications to the FDIC in cases where an institution 
would be undercapitalized following a capital distribution, as mandated 
by section 38 of the FDI Act. Because section 38 prohibits capital 
distributions in cases where an insured depository institution would be 
undercapitalized, the substantive requirements of Sec.  390.345(a)(3) 
would be preserved by making Sec.  303.203 applicable to State savings 
associations. The application requirements of Sec.  303.241 are 
analogous to the notice requirements imposed on State savings 
associations by Sec.  390.345(b)(2), as both sections require 
regulatory consideration of transactions that would reduce or retire 
common or preferred stock or capital notes or debentures. Accordingly, 
the FDIC proposes to rescind Sec. Sec.  390.345(a)(3) and 390.345(b)(2) 
and, as noted above, the FDIC also proposes to amend Sec.  303.241 so 
that it applies to State savings associations.
    The FDIC proposes to rescind the entirety of Sec.  390.345, which 
would effectively eliminate application requirements for capital 
distributions in cases where: A State savings association is not 
eligible for expedited processing under Sec.  390.101; the total amount 
of all capital distributions by a State savings association for the 
applicable calendar year exceeds the association's net income for that 
year to date plus retained net income for the preceding two years; and 
where a State savings association's proposed capital distribution would 
violate a prohibition contained in any applicable statute, regulation, 
or agreement with the FDIC, or violate a condition imposed on the State 
savings association in an FDIC-approved application or notice. The 
rescission of Sec.  390.345 would also effectively eliminate the notice 
requirements for capital distributions in cases where a State savings 
association would not be well capitalized following the distribution. 
The prompt corrective action provisions of section 38 of the FDI Act, 
however, which apply to all insured institutions, would address such 
situations. This aspect of the proposed rule is expected to reduce 
compliance costs for small, FDIC-supervised state savings associations. 
Although reducing notice requirements for these capital distribution 
activities could potentially increase the frequency of this activity 
for small, FDIC-supervised state savings associations, the FDIC 
believes such effects are likely to be relatively small. However, it is 
difficult to estimate these effects because it depends on the financial 
condition of, and future decisions of senior management at, small, 
FDIC-supervised savings associations. Additionally, the FDIC believes 
that small, FDIC-supervised savings association would benefit from the 
establishment of equal treatment for application and notification 
requirements of capital distributions for State nonmember banks and 
State savings associations.
    As discussed previously in the Supplementary Information section, 
Sec.  390.346 provides filing instructions for capital distributions 
that are subject to application or notice requirements under Sec.  
390.345, including instructions concerning a filing's content, 
schedules, and timing.\183\ Because the FDIC proposes rescinding Sec.  
390.345, these provisions would no longer be applicable. Therefore, the 
FDIC proposes to rescind Sec.  390.346. As described above, the FDIC 
also proposes to make Sec. Sec.  303.203 and 303.241 applicable to 
State savings associations, and both of these sections set forth 
requirements related to the content of filings. Furthermore, certain 
rules of general applicability, including those related to processing, 
are set forth in subpart A of part 303 of the FDIC's regulations and 
would apply to filings made by State savings associations under 
Sec. Sec.  303.203 and 303.241. Based on this information, the FDIC 
believes that this aspect of the proposed rule is unlikely to have any 
effect on small, FDIC-supervised State savings associations.
---------------------------------------------------------------------------

    \183\ 12 CFR 390.346.
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.347 authorizes a State savings association to combine a 
notice or application required under Sec.  390.345 with another related 
notice or application.\184\ Because the FDIC proposes rescinding Sec.  
390.345, these provisions would no longer be applicable. Therefore, the 
FDIC proposes to rescind Sec.  390.347. As noted above, by making State 
savings associations subject to Sec. Sec.  303.203 and 303.241, as 
proposed, State savings associations would be permitted to file 
applications that are subject to both sections as a single filing or 
concurrently with other filings.\185\ Therefore, the FDIC believes that 
this aspect of the proposed rule is unlikely to have any effect on 
small, FDIC-supervised state savings associations.
---------------------------------------------------------------------------

    \184\ 12 CFR 390.347.
    \185\ See 12 CFR 303.203(b) and 12 CFR 303.241(e).
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.348 sets forth the bases on which the FDIC may deny, in whole 
or in part, a notice or application filed under Sec.  390.345. Because 
the FDIC proposes to rescind Sec.  390.345, these provisions would no 
longer be applicable. Furthermore, the statutory exception that applies 
to capital distributions subject to section 38 of the FDI Act would 
continue to apply to capital distributions by State savings 
associations that are subject to section 38. In addition, because the 
proposal would make reductions or retirements of capital by State 
savings associations subject to the application requirements of Sec.  
303.241, the FDIC would evaluate such applications in light of the

[[Page 58512]]

statutory factors enumerated in section 18(i)(4) of the FDI Act, and 
the bases identified in Sec. Sec.  390.348(b) and 390.348(c) would be 
preserved insofar as they would be inherent in how the FDIC would 
review applications in light of the statutory factors of section 
18(i)(4).\186\ Therefore, the FDIC believes that this aspect of the 
proposed rule is unlikely to have any effect on small FDIC-supervised 
State savings associations.
---------------------------------------------------------------------------

    \186\ The statutory factors of section 18(i)(4): (A) The 
financial history and condition of the institution; (B) the adequacy 
of its capital structure; (C) its future earnings prospects; (D) the 
general character and fitness of its management; (E) the convenience 
and needs of the community to be served; and (F) whether or not its 
corporate powers are consistent with the purposes of the FDI Act. 12 
U.S.C. 1828(i)(4).
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.349 implements the statutory requirement of section 4 of the 
HOLA. That section requires each State savings association to be 
operated in a safe and sound manner and encourages State savings 
associations to provide credit for housing safely and soundly.\187\ In 
particular, Sec.  390.349 includes explicit safety and soundness 
requirements relating to liquidity and compensation to officers, 
directors, employees, and consultants. Section 39 of the FDI Act \188\ 
requires the Federal banking agencies to prescribe safety and soundness 
standards for internal controls, information systems, and internal 
audit systems; loan documentation; credit underwriting; interest rate 
exposure; asset growth; compensation, fees, and benefits; and such 
other operational and managerial standards as the agency determines to 
be appropriate. To this end, the FDIC has adopted part 364 and the 
related appendices. Part 364 establishes compensation-related standards 
and provides for other safety- and soundness-related guidelines which 
apply to all insured State nonmember banks, to state-licensed insured 
branches of foreign banks, and to State savings associations.\189\ As 
such, the safety and soundness standards in Sec.  390.349 are generally 
duplicative of the standards implemented through part 364. Part 364, as 
amended, provides consistent safety and soundness standards for both 
State nonmember banks and State savings associations. Therefore, the 
FDIC believes that this aspect of the proposed rule will have no 
substantive effects on small, FDIC-supervised institutions.
---------------------------------------------------------------------------

    \187\ 12 U.S.C. 1463(a).
    \188\ 12 U.S.C. 1831p-1.
    \189\ 12 CFR 364.101. In 2015, 12 CFR 364.101 was amended to 
apply to both state nonmember banks and state savings associations. 
See Removal of Transferred OTS Regulations Regarding Safety and 
Soundness Guidelines and Compliance Procedures; Rules on Safety and 
Soundness, 80 FR 65903 (Oct. 28, 2015).
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.350 contains requirements regarding examinations, appraisals, 
establishing and maintaining books and records, and using data 
processing services for maintenance of records. The proposed rule would 
rescind paragraphs (a), pertaining to examinations and audits, and (b), 
pertaining to appraisals. Section 390.350(a) states that each State 
savings association and affiliate will be examined periodically and may 
be examined anytime by the FDIC and that appraisals may be required as 
part of the examination. Section 337.12 states that the FDIC examines 
State nonmember banks pursuant to section 10 of the FDI Act,\190\ State 
savings associations pursuant to section 10 of the FDI Act and section 
4 of HOLA,\191\ and implements the frequency of examinations specified 
by section 10 for insured depository institutions, including State 
savings associations. Section 390.350(b) permits the FDIC to select 
appraisers in connection with an examination, requires State savings 
associations to pay for such an appraiser, and mandates that the FDIC 
furnish the appraisal report to the State savings association within 90 
days following the filing of the report to the FDIC. Part 323 of the 
FDIC's regulations implements Title XI of FIRREA,\192\ which requires 
written appraisals in connection with certain federally related 
transactions entered into by institutions regulated by the FDIC. 
Section 323.3(c), which applies to all FDIC-supervised institutions, 
including State savings associations, allows the FDIC to require an 
appraisal whenever the agency believes it is necessary to address 
safety and soundness concerns, which would include during an 
examination.
---------------------------------------------------------------------------

    \190\ 12 U.S.C. 1820.
    \191\ 12 U.S.C. 1463.
    \192\ Public Law 101-73, 103 Stat. 183; codified at 12 U.S.C. 
3331 et seq.
---------------------------------------------------------------------------

    Section 390.350(c) requires each State savings association and its 
affiliates to establish and maintain such accounting and other records 
as will provide an accurate and complete record of all business it 
transacts to enable the examination of the State savings association 
and its affiliates by the FDIC. The documents, files, and other 
material or property comprising said records shall at all times be 
available for such examination and audit wherever any of said records, 
documents, files, material, or property may be.
    State savings associations are already subject to other FDIC 
regulations that achieve the purposes of Sec.  390.350(c). For example, 
as recognized by Sec.  304.3 of the FDIC's regulations, all insured 
depository institutions, including State savings associations, are 
required to file quarterly Consolidated Reports of Condition and Income 
(Call Reports).
    Section 390.350(d) prohibits State savings associations from 
transferring the location of any of its general accounting or control 
records, or the maintenance thereof, from its home office to a branch 
or service office, or from a branch or service office to its home 
office or to another branch or service office unless prior to the date 
of transfer its board of directors has authorized the transfer by 
resolution and notified the appropriate regional director. The FDIC has 
not promulgated a similar rule for State nonmember banks. The removal 
of Sec.  390.350(d) will provide relief to State savings association by 
not having to notify the appropriate regional director of its intention 
to relocate records from its home office to a branch or service office 
and will provide parity with State nonmember banks which do not provide 
the FDIC with prior notification of transferring records from one 
location to another.
    Section 390.350(e) requires that when a State savings association 
maintains any of its records by means of data processing services, it 
will notify the appropriate regional director for the region in which 
the principal office of such State savings association is located, in 
writing, at least 90 days prior to the date on which such maintenance 
of records will begin. Section 304.3(d), implementing section 7 of the 
Bank Service Company Act,\193\ already requires FDIC-supervised 
institutions, including State savings associations, to notify the FDIC 
about the existence of a service relationship within thirty days after 
the making of the contract or the performance of the service and 
provides for the required information either through a letter or FDIC 
Form 6120/06 Notification of Performance of Bank Services. Therefore, 
the FDIC believes that rescinding Sec.  390.350 is unlikely to have any 
substantive effects on small, FDIC-supervised state savings 
associations.
---------------------------------------------------------------------------

    \193\ 12 U.S.C. 1867.
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.352 addresses the permissibility of financial derivatives 
transactions, the responsibility of the board of directors

[[Page 58513]]

and management of a State savings association with respect to such 
transactions, and recordkeeping requirements related to such 
transactions. Section 28(a) of the FDI Act,\194\ implemented by Part 
362 of the FDIC's regulations,\195\ restricts and prohibits 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 its service corporations. The term 
``activities permissible for a Federal savings association'' means, 
among other things, activities recognized as permissible in OCC 
regulations.\196\ Section 163.172 of the OCC's regulations governs the 
financial derivatives activities of Federal savings associations, the 
responsibility of the board of directors and management of a Federal 
savings association with respect to such transactions, and 
recordkeeping requirements related to such transactions.\197\ Because 
section 28(a) of the FDI Act and part 362 establish requirements that 
are duplicative of 390.352, the FDIC believes that rescinding Sec.  
390.352 is unlikely to have any effect on small, FDIC-supervised state 
savings associations.
---------------------------------------------------------------------------

    \194\ 12 U.S.C. 1831e(a).
    \195\ See 12 CFR 362.9-.15.
    \196\ See 12 CFR 362.9(a).
    \197\ See 12 CFR 163.172.
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.353 requires the board of directors or a board committee of a 
State savings association to develop, implement, and review policies 
and procedures for the management of a State savings association's 
interest-rate-risk; requires the association's management to report 
periodically to the board regarding implementation of the policy; and 
requires the association's board of directors to adjust the policy as 
necessary, including adjustments to the authorized acceptable level of 
interest rate risk. As mentioned above, the Interagency Safety and 
Soundness Guidelines, promulgated pursuant to section 39 of the FDI 
Act, describe examples of safe and sound practices for State nonmember 
banks and State savings associations. The Guidelines provide that an 
institution ``should manage interest rate risk in a manner that is 
appropriate to its size and the complexity of its assets and 
liabilities''.\198\ Management and the board of directors should be 
provided reports regarding interest rate risk that are adequate to 
assess the level of risk. Because the requirements outlined in Sec.  
390.353 are similar to the safety and soundness practices outlined in 
established Guidelines that already apply to small, FDIC-supervised 
state savings associations, the FDIC believes that this aspect of the 
proposed rule is unlikely to have any substantive effects on small, 
FDIC-supervised state savings associations.
---------------------------------------------------------------------------

    \198\ 12 CFR part 364, App. A, Sec.  II.E.
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.354 requires State savings associations to establish and 
maintain a BSA compliance program and a customer identification 
program. Section 390.354 also enumerates the four pillars required for 
a BSA compliance program. Similarly, Sec.  326.8 of the FDIC's 
regulations \199\ requires insured depository institutions for which 
the FDIC is the appropriate Federal banking agency to establish a BSA 
compliance program to include the same four pillars and a customer 
identification program. The proposed rule would rescind Sec.  390.354 
and make technical changes to Sec.  326.8, which is currently only 
applicable to insured depository institutions for which the FDIC is the 
appropriate Federal banking agency.\200\ Because the amended Sec.  
326.8 would be duplicative of Sec.  390.354 the FDIC believes that this 
aspect of the proposed rule is unlikely to have any effect on small, 
FDIC-supervised state savings associations.
---------------------------------------------------------------------------

    \199\ 12 CFR 326.8, 326.1(a).
    \200\ 12 CFR 326.8 is applicable to ``all insured nonmember 
banks as defined in 12 CFR 326.1.'' Section 326.1 was revised to 
remove the definition of ``insured nonmember bank'' and replace it 
with the term ``FDIC-supervised institution'' or ``institution'', 
defined to mean any insured depository institution for which the 
FDIC is the appropriate Federal banking agency pursuant to section 
3(q) of the FDI Act (12 U.S.C. 1813(q). 83 FR 13839, 13842 (April 2, 
2018).
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.355 requires State savings associations and service 
corporations to make certain reports. Subsection 390.355 (a) requires 
State savings associations to make periodic reports to the FDIC in such 
a manner and on such forms as the FDIC may prescribe. Statutory 
authorities enable the FDIC to require reports be filed by small, FDIC-
supervised state savings associations.
    Subsection 390.355(b) prohibits State savings associations from 
making false or misleading statements or omissions to the FDIC and to 
auditors of State savings associations. The Dodd-Frank Act provided the 
OCC with rulemaking authority relating to both State and Federal 
savings associations.\201\ On August 9, 2011, the OCC published in the 
Federal Register a final rule that contained a provision, 12 CFR 
163.180(b), that is substantially similar to Sec.  390.355(b) and that 
applies to both State and Federal savings associations.\202\ It 
prohibits all savings associations from knowingly making false or 
misleading statements to their ``appropriate Federal banking agency'' 
and to those auditing the institution.\203\ The OCC's prohibition at 
Sec.  163.180(b) effectively prohibits a State savings association from 
making false or misleading statements to the FDIC or to any party 
auditing or preparing or reviewing its financial statements. Therefore, 
the FDIC believes that rescinding this subsection will have no effect 
on small, FDIC-supervised state savings associations.
---------------------------------------------------------------------------

    \201\ See 12 U.S.C. 5412(b)(2)(B)(i)(II).
    \202\ 76 FR 49047 (Aug. 9, 2011).
    \203\ The FDIC is the ``appropriate Federal banking agency'' for 
any State savings association. See 12 U.S.C. 1813(q).
---------------------------------------------------------------------------

    Subsection 390.355(c) requires a State Savings association 
maintaining bond insurance coverage to promptly notify its carrier and 
file a proof of loss concerning any covered losses more than twice the 
deductible amount. The FDIC generally requires fidelity bond insurance 
for insured depository institutions and considers whether fidelity bond 
insurance is in place when analyzing the general character and fitness 
of the management of a de novo financial institution applying for 
deposit insurance.\204\ However, the FDIC does not otherwise impose a 
reporting requirement such as the one contained in Sec.  
390.355(c).\205\ This aspect of the proposed rule potentially reduces 
reporting requirements on small, FDIC-supervised state savings 
associations. The FDIC believes that these potential effects are likely 
to be relatively small. However, it is difficult to estimate these 
effects because it depends on the financial condition of, and future 
decisions of senior management at, small, FDIC-supervised savings 
associations.
---------------------------------------------------------------------------

    \204\ See 12 U.S.C. 1816; FDIC Statement of Policy on 
Applications for Deposit Insurance, 63 FR 44756 (Aug. 20, 1998), 
amended at 67 FR 79278 (Dec. 27, 2002), available at https://www.fdic.gov/regulations/laws/rules/5000-3000.html.
    \205\ Id. (``An insured depository institution should maintain 
sufficient fidelity bond coverage on its active officers and 
employees to conform with generally accepted industry practices. 
Primary coverage of no less than $1 million is ordinarily expected. 
Approval of the application may be conditioned upon acquisition of 
adequate fidelity coverage prior to opening for business.'').
---------------------------------------------------------------------------

    Subsection Sec.  390.355(d) regulates SARs for state savings 
associations, was enacted in concert with the other Federal banking 
agencies, including the

[[Page 58514]]

OCC,\206\ the FRB,\207\ and the FDIC,\208\ as well as the Financial 
Crimes Enforcement Network (FinCEN).\209\ These entities issued 
substantially similar proposals, which became effective on April 1, 
1996. As mentioned earlier, paragraphs (1)-(8), (12), and (13) of Sec.  
390.355(d) mirror Sec.  353.3 for state nonmember banks. The 
notification requirements for board of directors, or a committee of 
directors or executive officers of state savings associations outlined 
paragraph (9) of subsection 390.355(d) also mirror notifications 
requirements in Sec.  353.3. Paragraph (9) of subsection 390.355(d) 
also states that if the subject of the SAR is a director or executive 
officer, the State savings association may not notify the suspect, 
pursuant to 31 U.S.C. 5318(g)(2), but shall notify all directors who 
are not suspects. In this circumstance, Sec.  353.3 does not have 
analogous language; however, the FDIC relies on 31 U.S.C. 5813(g)(2) to 
achieve the same purpose. Paragraph (10) of subsection 390.355(d) 
states that a State savings association's failure to file a SAR in 
accordance with this section may subject the State savings association, 
its directors, officers, employees, agents, or other institution-
affiliated parties to supervisory action. In this circumstance, Sec.  
353.3 does not have analogous language. Although Sec.  353.3 does not 
explicitly provide a remedy for failure to file a SAR, the FDIC has 
enforcement authority for violations of law or regulation.\210\ 
Therefore, the FDIC proposes to rescind subsection 390.355(d)(10) in 
its entirety because it is unnecessary. Paragraph (11) of subsection 
390.355(d) states that a State savings association may obtain SARs and 
the instructions from the appropriate FDIC region as defined in Sec.  
303.2 of the FDIC's regulations. In this circumstance, Sec.  353.3 does 
not have analogous language. However, FDIC-supervised institutions can 
obtain SAR forms electronically. FinCEN converted to the BSA E-Filing 
System for filing SARs for all financial institutions; \211\ therefore 
this provision is now obsolete as forms are no longer available from 
FDIC regions. With this proposed rule the FDIC proposes to make 
conforming changes to Sec. Sec.  353.1 and 353.3 to make part 353 of 
the FDIC's regulations applicable to all FDIC-supervised institutions, 
including state savings associations. Therefore, the FDIC believes that 
rescinding this subsection of Sec.  390.355 will have no effect on 
small, FDIC-supervised state savings associations.
---------------------------------------------------------------------------

    \206\ Minimum Security Devices and Procedures, Reports of 
Suspicious Activities, and Bank Secrecy Act Compliance Program, 61 
FR 4332 (Feb. 5, 1996).
    \207\ Membership of State Banking Institutions in the Federal 
Reserve System; International Banking Operations; Bank Holding 
Companies and Change in Control; Reports of Suspicious Activities 
Under Bank Secrecy Act, 61 FR 4338 (Feb. 5, 1996).
    \208\ Suspicious Activity Reports, 61 FR 6095 (Feb. 16, 1996).
    \209\ Amendment to the Bank Secrecy Act Regulations; Requirement 
to Report Suspicious Transactions, 61 FR 4326 (Feb. 5, 1996).
    \210\ See 12 U.S.C. 1818.
    \211\ See https://bsaefiling.fincen.treas.gov/main.html.
---------------------------------------------------------------------------

    Subsection 390.355(e) requires State savings associations within 
the jurisdiction of a FHLB to provide data from the Call Report upon 
the request of the FHLB. The FDIC is required under section 402(e)(3) 
of FIRREA ``to take such action as may be required as may be necessary 
to assure that the indexes prepared by the . . . Federal home loan 
banks immediately prior to the enactment of this subsection and used to 
calculate the interest rate on adjustable rate mortgage instruments 
continue to be available.'' \212\ As noted above, the Dodd-Frank Act 
provided the OCC with rulemaking authority relating to both State and 
Federal savings associations.\213\ On August 9, 2011, the OCC published 
in the Federal Register a final rule that contained a provision, Sec.  
163.180(e), that is substantially similar to Sec.  390.355(e) and that 
applies to both State and Federal savings associations.\214\ It 
requires all savings associations within the jurisdiction of that FHLB 
to report specified data items for the FHLB to use in calculating and 
publishing an adjustable-rate mortgage index.\215\ Because the 
provision contained in the OCC's regulation is applicable to all 
savings associations and is substantially similar to the rule found at 
Sec.  390.355(e), the FDIC believes that rescinding this subsection 
will not have any effect on small, FDIC-supervised state savings 
associations.
---------------------------------------------------------------------------

    \212\ See 12 U.S.C. 1437 nt.
    \213\ See 12 U.S.C. 5412(b)(2)(B)(i)(II).
    \214\ 76 FR 49047 (Aug. 9, 2011).
    \215\ 12 CFR 163.180(e).
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.356 requires fidelity bond coverage for directors, officers, 
employees, and agents of State savings associations. Neither the FDI 
Act nor the FDIC's regulations for State nonmember banks contain 
similar prescriptive language concerning fidelity bonds that would be 
applicable to State savings associations. Section 18(e) of the FDI Act 
authorizes, but does not mandate, that the FDIC to require an insured 
depository institution to ``provide protection and indemnity against 
burglary, defalcation, and other similar insurable losses.'' \216\ The 
FDIC generally requires fidelity bond insurance for insured depository 
institutions and considers whether fidelity bond insurance is in place 
when analyzing the general character and fitness of the management of a 
de novo financial institution applying for deposit insurance.\217\ 
However, other than expressing general guidelines regarding the 
appropriate level of insurance coverage, the FDIC does not otherwise 
impose requirements such as the ones contained in Sec.  390.356.\218\ 
There are no other relevant provisions concerning fidelity bond 
coverage or the use of fidelity bond proceeds. And, there is no 
analogous statutory or regulatory language for State nonmember banks 
that mirrors Sec.  390.356. Therefore, rescinding Sec.  390.356 could 
potentially reduce compliance costs for small, FDIC-supervised state 
savings associations if they choose to make changes to their fidelity 
bond coverage. The FDIC believes that this aspect of the proposed rule 
is likely to pose relatively small effects on small, FDIC-supervised 
state savings associations. However, it is difficult to estimate these 
effects because it depends on the decisions of senior management at 
small, FDIC-supervised savings associations.
---------------------------------------------------------------------------

    \216\ See 12 U.S.C. 1828(e).
    \217\ See 12 U.S.C. 1816; Statement of Policy on Applications 
for Deposit Insurance.
    \218\ See Statement of Policy on Applications for Deposit 
Insurance (``An insured depository institution should maintain 
sufficient fidelity bond coverage on its active officers and 
employees to conform with generally accepted industry practices. 
Primary coverage of no less than $1 million is ordinarily expected. 
Approval of the application may be conditioned upon acquisition of 
adequate fidelity coverage prior to opening for business.'').
---------------------------------------------------------------------------

    As discussed previously in the Supplementary Information section, 
Sec.  390.357 provides that, in lieu of a bond for directors, officers, 
employees, and agents of State savings associations referenced in Sec.  
390.356, the State savings association's board may approve a bond for 
its agents. This bond must be twice the average monthly collections of 
such agent, and the agent is required to settle its account with the 
State savings association at least monthly. Similar to Sec.  390.356, 
there are not analogous statutory or regulatory requirements for State 
nonmember banks that resemble Sec.  390.357. Therefore, rescinding 
Sec.  390.357 could potentially reduce compliance costs for small, 
FDIC-supervised state savings associations to the extent that they were 
engaging in such bond coverage practices and choose to make changes. 
The FDIC believes that this aspect of the proposed rule is likely to 
pose relatively small

[[Page 58515]]

effects on small, FDIC-supervised state savings associations. However, 
it is difficult to estimate these effects because it depends on the 
decisions of senior management at small, FDIC-supervised savings 
associations.
    As discussed previously in the Supplementary Information section, 
Sec.  390.358 prohibits persons including directors, officers, or 
employees of State savings associations, or others who have power to 
direct its management or policies or who otherwise owe a fiduciary duty 
to a State savings association from advancing personal or business 
interests, or those of others, at the expense of the State savings 
association. The section also prescribes how these individuals should 
interact with the board of directors of a State savings association if 
they have an interest in a matter or transaction requiring board 
consideration. While section 8(e) of the FDI Act authorizes enforcement 
actions against directors and officers who breach their fiduciary 
duties to the depository institution, the existence and scope of a 
fiduciary duty is a matter of State law. Therefore, rescinding Sec.  
390.358 is not likely to have a substantive effect on small, FDIC-
supervised State savings associations because applicable State laws 
will continue to govern conflicts of interest and fiduciary duties, 
relevant FDIC guidance on boards of director will continue to apply, 
and the FDIC will have the same enforcement authority for violations of 
law in this area.
    As discussed previously in the Supplementary Information section, 
Sec.  390.359 prohibits persons, including directors and officers or 
others who have power to direct its management or policies or who 
otherwise owe a fiduciary duty to a State savings association from 
taking advantage of corporate opportunities belonging to the State 
savings association. Such conduct is governed by either statutory or 
common law. While section 8(e) of the FDI Act authorizes enforcement 
actions against directors and officers who breach their fiduciary 
duties to the depository institution, the existence and scope of a 
fiduciary duty is a matter of state law. Therefore, rescinding Sec.  
390.359 is not likely to have a substantive effect on small, FDIC-
supervised State savings associations because applicable State laws 
will continue to govern conflicts of interest and fiduciary duties, 
relevant FDIC guidance on boards of director will continue to apply, 
and the FDIC will have the same enforcement authority for violations of 
law in this area.
    As discussed previously in the Supplementary Information section, 
Sec. Sec.  390.360 through 390.368 require certain insured depository 
institutions and insured depository institution holding companies to 
furnish the appropriate Federal banking agency with at least 30 days' 
notice prior to adding any individual to the board of directors or 
employing any individual as a senior executive officer. It also permits 
the appropriate Federal banking agency no more than 90 days to issue a 
notice of disapproval of the proposed addition of a director or 
employment of a senior executive officer. Subpart F of Part 303 of the 
FDIC's regulations imposes similar notice filing requirements on 
insured State nonmember banks. After careful review, for the reasons 
described above in Section X. of the Supplementary Information section, 
the FDIC proposes to amend subpart F of Part 303 so that it applies to 
State savings associations as well as State nonmember banks and to 
rescind and remove Sec. Sec.  390.360 through 390.368. Therefore, the 
FDIC believes that rescinding Sec. Sec.  390.360 through 390.368 is 
unlikely to have any effect on small, FDIC-supervised state savings 
associations.
    Based on the information above, the FDIC certifies that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. The FDIC invites comments on all 
aspects of the supporting information provided in this RFA section. In 
particular, would this rule have any significant effects that the FDIC 
has not identified on small entities?

C. The Economic Growth and Regulatory Paperwork Reduction Act

    Under section 2222 of the Economic Growth and Regulatory Paperwork 
Reduction Act of 1996 (EGRPRA),\219\ the FDIC is required to review all 
of its regulations at least once every 10 years, in order to identify 
any outdated or otherwise unnecessary regulations imposed on insured 
institutions.\220\ The FDIC, along with the other Federal banking 
agencies, submitted a Joint Report to Congress on March 21, 2017, 
(``EGRPRA Report'') discussing how the review was conducted, what has 
been done to date to address regulatory burden, and further measures 
that will be taken to address issues that were identified. As noted in 
the EGRPRA Report, the FDIC is continuing to streamline and clarify its 
regulations through the OTS rule integration process. By removing 
outdated or unnecessary regulations, such as Part 390, subpart S, this 
Proposed Rule complements other actions the FDIC has taken, separately 
and with the other Federal banking agencies, to further the EGRPRA 
mandate.
---------------------------------------------------------------------------

    \219\ Public Law 104-208, 110 Stat. 3009 (1996).
    \220\ Public Law 104-208, 110 Stat. 3009 (1996).
---------------------------------------------------------------------------

D. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act \221\ requires each 
Federal banking agency to use plain language in all of its proposed and 
final rules published after January 1, 2000. As a Federal banking 
agency subject to the provisions of this section, the FDIC has sought 
to present the Proposed Rule in a simple and straightforward manner. 
The FDIC invites comments on whether the Proposed Rule is clearly 
stated and effectively organized, and how the FDIC might make it easier 
to understand. For example:
---------------------------------------------------------------------------

    \221\ Public Law 106-102, 113 Stat. 1338, 1471 (codified at 12 
U.S.C. 4809).
---------------------------------------------------------------------------

     Has the FDIC organized the material to suit your needs? If 
not, how could it present the rule more clearly?
     Have we clearly stated the requirements of the rule? If 
not, how could the rule be more clearly stated?
     Does the rule contain technical jargon that is not clear? 
If so, which language requires clarification?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the regulation easier to 
understand? If so, what changes would make the regulation easier to 
understand?
     What else could we do to make the regulation easier to 
understand?

E. Riegle Community Development and Regulatory Improvement Act of 1994

    The Riegle Community Development and Regulatory Improvement Act of 
1994 (RCDRIA) requires that each Federal banking agency, in determining 
the effective date and administrative compliance requirements for new 
regulations that impose additional reporting, disclosure, or other 
requirements on insured depository institutions, consider, consistent 
with principles of safety and soundness and the public interest, any 
administrative burdens that such regulations would place on depository 
institutions, including small depository institutions, and customers of 
depository institutions, as well as the benefits of such regulations. 
In addition, new regulations and amendments to regulations that impose 
additional reporting, disclosure, or other new requirements on insured 
depository institutions generally must take effect on the first day of 
a calendar quarter that begins on or after the date on which the 
regulations are published in final

[[Page 58516]]

form.\222\ The FDIC invites comments that further will inform its 
consideration of RCDRIA.
---------------------------------------------------------------------------

    \222\ 12 U.S.C. 4802.
---------------------------------------------------------------------------

List of Subjects

12 CFR Part 303

    Administrative practice and procedure, Bank deposit insurance, 
Banks, banking, Reporting and recordkeeping requirements, Savings 
associations.

 12 CFR Part 326

    Banks, banking, Currency, Reporting and recordkeeping requirements, 
Security measures.

 12 CFR Part 337

    Banks, banking, Reporting and recordkeeping requirements, Savings 
associations, Securities.

12 CFR Part 353

    Banks, banking, Crime, Reporting and recordkeeping requirements.

12 CFR Part 390

    Administrative practice and procedure, Advertising, Aged, Civil 
rights, Conflict of interests, Credit, Crime, Equal employment 
opportunity, Fair Housing, Government employees, Individuals with 
disabilities, Reporting and recordkeeping requirements, Savings 
associations.

    For the reasons stated in the preamble and under the authority of 
12 U.S.C. 5412, the Federal Deposit Insurance Corporation proposes to 
amend parts 303, 326, 337, 353 and 390 of title 12 of the Code of 
Federal Regulations as follows:

PART 303--FILING PROCEDURES

0
1. The authority citation for 12 CFR Part 303 is revised to read as 
follows:

    Authority: 12 U.S.C. 378, 478, 1463, 1813, 1815, 1817, 1818, 
1819 (Seventh and Tenth), 1820, 1823, 1828, 1831z, 1831e, 1831o, 
1831p-1, 1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207, 5412; 15 
U.S.C. 1601-1607.

0
2. Amend Sec.  303.2 by redesignating paragraphs (s) through (ff) as 
paragraphs (t) through (gg) and adding a new paragraph (s) to read as 
follows:
* * * * *
    (s) FDIC-supervised institution means any entity for which the FDIC 
is the appropriate Federal banking agency pursuant to section 3(q) of 
the FDI Act, 12 U.S.C. 1813(q).
* * * * *
0
3. Revise Sec.  303.62 to read as follows:


Sec.  303.62   Transactions requiring prior approval.

    (a) Merger transactions. The following merger transactions require 
the prior written approval of the FDIC under this subpart:
    (1) Any merger transaction, including any corporate reorganization, 
interim merger transaction, or optional conversion, in which the 
resulting institution is to be an FDIC-supervised institution; and
    (2) Any merger transaction, including any corporate reorganization, 
or interim merger transaction, that involves an uninsured bank or 
institution.
    (b) Related regulations. Transactions covered by this subpart also 
may be subject to other regulations or application requirements, 
including the following:
    (1) Interstate merger transactions. Merger transactions between 
insured banks that are chartered in different states are subject to the 
regulations of section 44 of the FDI Act (12 U.S.C. 1831u). In the case 
of a merger transaction that consists of the acquisition by an out of 
state bank of a branch without acquisition of the bank, the branch is 
treated for section 44 purposes as a bank whose home state is the state 
in which the branch is located.
    (2) Deposit insurance. An application for deposit insurance will be 
required in connection with a merger transaction between a state-
chartered interim institution and an insured depository institution if 
the related merger application is being acted upon by a Federal banking 
agency other than the FDIC. If the FDIC is the Federal banking agency 
responsible for acting on the related merger application, a separate 
application for deposit insurance is not necessary. Procedures for 
applying for deposit insurance are set forth in subpart B of this part. 
An application for deposit insurance will not be required in connection 
with a merger transaction (other than a purchase and assumption 
transaction) of a federally-chartered interim institution and an 
insured institution, even if the resulting institution is to operate 
under the charter of the Federal interim institution.
    (3) Branch closings. Branch closings in connection with a merger 
transaction are subject to the notice requirements of section 42 of the 
FDI Act (12 U.S.C. 1831r-1), including requirements for notice to 
customers. These requirements are addressed in the ``Interagency Policy 
Statement Concerning Branch Closings Notices and Policies'' (1 FDIC 
Law, Regulations, Related Acts (FDIC) 5391; see Sec.  309.4(a) and (b) 
of this chapter for availability).
    (4) Undercapitalized institutions. Applications for a merger 
transaction by applicants subject to section 38 of the FDI Act (12 
U.S.C. 1831o) should also provide the information required by Sec.  
303.204. Applications pursuant to sections 38 and 18(c) of the FDI Act 
(12 U.S.C, 1831o and 1828(c)) may be filed concurrently or as a single 
application.
    (5) Certification of assumption of deposit liability. Whenever all 
of the deposit liabilities of an insured depository institution are 
assumed by one or more insured depository institutions by merger, 
consolidation, other statutory assumption, or by contract, the 
transferring insured depository institution, or its legal successor, 
shall provide an accurate written certification to the FDIC that its 
deposit liabilities have been assumed, in accordance with 12 CFR part 
307.
0
4. Revise Sec.  303.64 to read as follows:


Sec.  303.64  Processing

    (a) Expedited processing for eligible depository institutions--(1) 
General. An application filed under this subpart by an eligible 
depository institution as defined in Sec.  303.2(r) and which meets the 
additional criteria in paragraph (a)(4) of this section will be 
acknowledged by the FDIC in writing and will receive expedited 
processing, unless the applicant is notified in writing to the contrary 
and provided with the basis for that decision. The FDIC may remove an 
application from expedited processing for any of the reasons set forth 
in Sec.  303.11(c)(2).
    (2) Under expedited processing, the FDIC will take action on an 
application by the date that is the latest of:
    (i) 45 days after the date of the FDIC's receipt of a substantially 
complete merger application; or
    (ii) 10 days after the date of the last notice publication required 
under Sec.  303.65 of this subpart; or
    (iii) 5 days after receipt of the Attorney General's report on the 
competitive factors involved in the proposed transaction; or
    (iv) For an interstate merger transaction subject to the provisions 
of section 44 of the FDI Act (12 U.S.C. 1831u), 5 days after the FDIC 
receives confirmation from the host state (as defined in Sec.  
303.41(e)) that the applicant has both complied with the filing 
requirements of the host state and submitted a copy of the FDIC merger 
application to the host state's bank supervisor.
    (3) Notwithstanding paragraphs (a)(1) or (2) of this section, if 
the FDIC does not act within the expedited processing period, it does 
not constitute an automatic or default approval.

[[Page 58517]]

    (4) Criteria. The FDIC will process an application using expedited 
procedures if:
    (i) Immediately following the merger transaction, the resulting 
institution will be ``well-capitalized'' pursuant to subpart H of part 
324 of this chapter (12 CFR part 324), as applicable; and
    (ii)(A) All parties to the merger transaction are eligible 
depository institutions as defined in Sec.  303.2(r); or
    (B) The acquiring party is an eligible depository institution as 
defined in Sec.  303.2(r) and the amount of the total assets to be 
transferred does not exceed an amount equal to 10 percent of the 
acquiring institution's total assets as reported in its report of 
condition for the quarter immediately preceding the filing of the 
merger application.
    (b) Standard processing. For those applications not processed 
pursuant to the expedited procedures, the FDIC will provide the 
applicant with written notification of the final action taken by the 
FDIC on the application when the decision is rendered.
    (c) Processing for State savings associations. Notwithstanding 
paragraphs (a) and (b) of this section, the FDIC will approve or 
disapprove an application filed by a State savings association to 
acquire or be acquired by another insured depository institution that 
is required to be filed with the FDIC within 60 days after the date of 
the FDIC's receipt of a substantially complete merger application, 
subject to the FDIC's discretion to extend such period by an additional 
30 days if any material information submitted is substantially 
inaccurate or incomplete.
    (1) The FDIC shall notify an applicant that is a State savings 
association in writing of the date the application is deemed 
substantially complete. The FDIC may request additional information at 
any time.
    (2) Notwithstanding paragraph (c) of this section, if the FDIC does 
not approve or disapprove an application within the 60-day or extended 
processing period it does not constitute an automatic or default 
approval.
0
5. Revise Sec.  303.100 to read as follows:


Sec.  303.100  Scope

    This subpart sets forth the circumstances under which an FDIC-
supervised institution must notify the FDIC of a change in any member 
of its board of directors or any senior executive officer and the 
procedures for filing such notice. This subpart implements section 32 
of the FDI Act (12 U.S.C. 1831i).
0
6. Amend Sec.  303.101 by revising paragraph (a) introductory text, 
paragraph (b) introductory, paragraph (c) introductory text and 
paragraphs (c)(3), (c)(4) and (d) to read as follows:


Sec.  303.101   Definitions

    (a) Director means a person who serves on the board of directors or 
board of trustees of an FDIC-supervised institution, except that this 
term does not include an advisory director who:
* * * * *
    (b) Senior executive officer means a person who holds the title of 
president, chief executive officer, chief operating officer, chief 
managing official (in an insured state branch of a foreign bank), chief 
financial officer, chief lending officer, chief investment officer, or, 
without regard to title, salary, or compensation, performs the function 
of one or more of these positions. Senior executive officer also 
includes any other person identified by the FDIC, whether or not hired 
as an employee, with significant influence over, or who participates 
in, major policymaking decisions of the FDIC-supervised institution.
    (c) Troubled condition means any FDIC-supervised institution that:
* * * * *
    (3) Is subject to a cease-and-desist order or written agreement 
issued by either the FDIC or the appropriate state banking authority 
that requires action to improve the financial condition of the FDIC-
supervised institution or is subject to a proceeding initiated by the 
FDIC or state authority which contemplates the issuance of an order 
that requires action to improve the financial condition of the FDIC-
supervised institution, unless otherwise informed in writing by the 
FDIC; or
    (4) Is informed in writing by the FDIC that it is in troubled 
condition for purposes of the requirements of this subpart on the basis 
of the FDIC-supervised institution's most recent report of condition or 
report of examination, or other information available to the FDIC.
    (d) FDIC-supervised institution means any entity for which the FDIC 
is the appropriate Federal banking agency pursuant to section 3(q) of 
the FDI Act, 12 U.S.C. 1813(q).
0
7. Amend Sec.  303.102 by revising paragraph (a), paragraph (c) 
introductory text, paragraph (c)(1) introductory text, paragraph 
(c)(1)(i), and (c)(2) to read as follows:


Sec.  303.102   Filing procedures and waiver of prior notice

    (a) FDIC-supervised institutions. An FDIC-supervised institution 
shall give the FDIC written notice, as specified in paragraph (c)(1) of 
this section, at least 30 days prior to adding or replacing any member 
of its board of directors, employing any person as a senior executive 
officer of the institution, or changing the responsibilities of any 
senior executive officer so that the person would assume a different 
senior executive officer position, if the FDIC-supervised institution:
    (1) Is not in compliance with all minimum capital requirements 
applicable to the FDIC-supervised institution as determined on the 
basis of the institution's most recent report of condition or report of 
examination;
    (2) Is in troubled condition; or
    (3) The FDIC determines, in connection with its review of a capital 
restoration plan required under section 38(e)(2) of the FDI Act (12 
U.S.C. 1831o(e)(2)) or otherwise, that such notice is appropriate.
* * * * *
    (c) Waiver of prior notice--(1) Waiver requests. The FDIC may 
permit an individual, upon petition by the FDIC-supervised institution 
to the appropriate FDIC office, to serve as a senior executive officer 
or director before filing the notice required under this subpart if the 
FDIC finds that:
    (i) Delay would threaten the safety and soundness of the FDIC-
supervised institution
* * * * *
    (2) Automatic waiver. The prior 30-day notice is automatically 
waived in the case of the election of a new director not proposed by 
management at a meeting of the shareholders of an FDIC-supervised 
institution, and the individual immediately may begin serving, provided 
that a complete notice is filed with the appropriate FDIC office within 
two business days after the individual's election.
* * * * *
0
8. Revise Sec.  303.103 to read as follows:


Sec.  303.103  Processing

    (a) Processing. The 30-day notice period specified in Sec.  
303.102(a) shall begin on the date substantially all information 
required to be submitted by the notificant pursuant to Sec.  
303.102(c)(1) is received by the appropriate FDIC office. The FDIC 
shall notify the FDIC-supervised institution submitting the notice of 
the date on which the notice is accepted for processing and of the date 
on which the 30-day notice period will expire. If processing cannot be 
completed with 30 days, the notificant will be advised in writing, 
prior to expiration of the 30-day period, of the reason for the delay 
in processing and of the additional time period, not to exceed 60 days, 
in which processing will be completed.

[[Page 58518]]

    (b) Commencement of service--(1) At expiration of period. A 
proposed director or senior executive officer may begin service after 
the end of the 30-day period or any other additional period as provided 
under paragraph (a) of this section, unless the FDIC disapproves the 
notice before the end of the period.
    (2) Prior to expiration of the period. A proposed director or 
senior executive officer may begin service before the end of the 30-day 
period or any additional time period as provided under paragraph (a) of 
this section, if the FDIC notifies the FDIC-supervised institution and 
the individual in writing of the FDIC's intention not to disapprove the 
notice.
    (c) Notice of disapproval. The FDIC may disapprove a notice filed 
under Sec.  303.102 if the FDIC finds that the competence, experience, 
character, or integrity of the individual with respect to whom the 
notice is submitted indicates that it would not be in the best 
interests of depositors of the FDIC-supervised institution or in the 
best interests of the public to permit the individual to be employed 
by, or associated with the FDIC-supervised institution. Subpart L of 12 
CFR part 308 sets forth the rules of practice and procedure for a 
notice of disapproval.
0
9. Revise Sec.  303.200(b) to read as follows:


Sec.  303.200  Scope

* * * * *
    (b) Institutions covered. Restrictions and prohibitions contained 
in subpart H of part 324 of this chapter apply primarily to FDIC-
supervised institutions, as well as to directors and senior executive 
officers of those institutions. Portions of subpart H of part 324 of 
this chapter also apply to all insured depository institutions that are 
deemed to be critically undercapitalized.
0
10. Revise Sec.  303.203 to read as follows:


Sec.  303.203   Applications for capital distributions.

    (a) Scope. An FDIC-supervised institution shall submit an 
application for a capital distribution if, after having made a capital 
distribution, the institution would be undercapitalized, significantly 
undercapitalized, or critically undercapitalized.
    (b) Content of filing. An application to repurchase, redeem, 
retire, or otherwise acquire shares or ownership interests of the FDIC-
supervised institution shall describe the proposal, the shares or 
obligations that are the subject thereof, and the additional shares or 
obligations of the institution that will be issued in at least an 
amount equivalent to the distribution. The application also shall 
explain how the proposal will reduce the institution's financial 
obligations or otherwise improve its financial condition. If the 
proposed action also requires an application under Sec.  303.241 of 
this part regarding prior consent to retire capital, such application 
should be filed concurrently with, or made a part of, the application 
filed pursuant to section 38 of the FDI Act (12 U.S.C. 1831o).
0
11. Amend Sec.  303.241 by revising paragraphs (a) and (e) to read as 
follows:


Sec.  303.241  Reduce or retire capital stock or capital debt 
instruments.

    (a) Scope. (1) Insured State nonmember banks. The procedures 
contained in this section are to be followed by an insured State 
nonmember bank to seek the prior approval of the FDIC to reduce the 
amount or retire any part of its common or preferred stock, or to 
retire any part of its capital notes or debentures pursuant to section 
18(i)(1) of the FDI Act (12 U.S.C. 1828(i)(1)).
    (2) Insured State savings associations. The procedures contained in 
this section are to be followed by an insured State savings association 
to seek the prior approval of the FDIC to reduce the amount or retire 
any part of its common or preferred stock, or to retire any part of its 
capital notes or debentures, as if the insured State savings 
association were a State nonmember bank subject to section 18(i)(1) of 
the Act (12 U.S.C. 1828(i)(1)).
* * * * *
    (e) Undercapitalized institutions. Procedures regarding 
applications by an undercapitalized insured depository institution to 
retire capital stock or capital debt instruments pursuant to section 38 
of the FDI Act (12 U.S.C. 1831o) are set forth in subpart K (Prompt 
Corrective Action), Sec.  303.203. Applications pursuant to section 38 
and this section should be filed concurrently, or as a single 
application.
* * * * *

PART 326--MINIMUM SECURITY DEVICES AND PROCEDURES AND BANK SECRECY 
ACT COMPLIANCE

0
12. Revise the authority citation for 12 CFR part 326 to read as 
follows:

    Authority: 12 U.S.C. 1813, 1815, 1817, 1818, 1819 (Tenth), 1881-
1883, 5412; 31 U.S.C. 5311-5314, 5316-5332.2.

0
13. Revise Sec.  326.1(a) to read as follows:


Sec.  326.8  Definitions

* * * * *
    (a) The term FDIC-supervised institution or institution means any 
entity for which the Federal Deposit Insurance Corporation is the 
appropriate Federal banking agency pursuant to section 3(q) of the 
Federal Deposit Insurance Act, 12 U.S.C. 1813(q).
* * * * *
0
14. Revise Sec.  326.8 to read as follows:


Sec.  326.8   Bank Secrecy Act Compliance

    (a) Purpose. This subpart is issued to assure that all FDIC-
supervised institutions as defined in 12 CFR 326.1 establish and 
maintain procedures reasonably designed to assure and monitor their 
compliance with the requirements of subchapter II of chapter 53 of 
title 31, United States Code, and the implementing regulations 
promulgated thereunder by the Department of Treasury at 31 CFR Chapter 
X.
    (b) Compliance procedures--(1) Program requirement. Each 
institution shall develop and provide for the continued administration 
of a program reasonably designed to assure and monitor compliance with 
recordkeeping and reporting requirements set forth in subchapter II of 
chapter 53 of title 31, United States Code, and the implementing 
regulations issued by the Department of Treasury at 31 CFR Chapter X. 
The compliance program shall be written, approved by the institution's 
board of directors, and noted in the minutes.
    (2) Customer identification program. Each institution is subject to 
the requirements of 31 U.S.C. 5318(l) and the implementing regulation 
jointly promulgated by the FDIC and the Department of the Treasury at 
31 CFR 1020.220.
    (c) Contents of compliance program. The compliance program shall, 
at a minimum:
    (1) Provide for a system of internal controls to assure ongoing 
compliance;
    (2) Provide for independent testing for compliance to be conducted 
by institution personnel or by an outside party;
    (3) Designate an individual or individuals responsible for 
coordinating and monitoring day-to-day compliance; and
    (4) Provide training for appropriate personnel.

PART 337--UNSAFE AND UNSOUND BANKING PRACTICES

0
15. Revise the authority citation for 12 CFR 337 to read as follows:

    Authority: 12 U.S.C. 375a(4), 375b, 1463, 1464, 1816, 1818(a), 
1818(b), 1819, 1820(d), 1821(f), 1828(j)(2), 1831, 1831f, 1831g, 
5412.

[[Page 58519]]

0
16. Revise Sec.  337.3 to read as follows:


Sec.  337.3  Limits on extensions of credit to executive officers, 
directors, and principal shareholders of FDIC-supervised institutions.

    (a) With the exception of 12 CFR 215.5(b), 215.5(c)(3), and 
215.5(c)(4), FDIC-supervised institutions are subject to the 
restrictions contained in Federal Reserve Board Regulation O (12 CFR 
part 215) to the same extent and to the same manner as though they were 
member banks.
    (b) For the purposes of compliance with Sec.  215.4(b) of Federal 
Reserve Board Regulation O, no FDIC-supervised institution may extend 
credit or grant a line of credit to any of its executive officers, 
directors, or principal shareholders or to any related interest of any 
such person in an amount that, when aggregated with the amount of all 
other extensions of credit and lines of credit by the FDIC-supervised 
institution to that person and to all related interests of that person, 
exceeds the greater of $25,000 or five percent of the FDIC-supervised 
institution's unimpaired capital and unimpaired surplus,\3\ or $500,000 
unless:
---------------------------------------------------------------------------

    \3\ For the purposes of section 337.3, an FDIC-supervised 
institution's unimpaired capital and unimpaired surplus shall have 
the same meaning as found in section 215.2(i) of Federal Reserve 
Board Regulation O (12 CFR 215.2(i)).
---------------------------------------------------------------------------

    (1) The extension of credit or line of credit has been approved in 
advance by a majority of the entire board of directors of that FDIC-
supervised institution and
    (2) the interested party has abstained from participating directly 
or indirectly in the voting.
    (c)(1) No FDIC-supervised institution may extend credit in an 
aggregate amount greater than the amount permitted in paragraph (c)(2) 
of this section to a partnership in which one or more of the FDIC-
supervised institution's executive officers are partners and, either 
individually or together, hold a majority interest. For the purposes of 
paragraph (c)(2) of this section, the total amount of credit extended 
by an FDIC-supervised institution to such partnership is considered to 
be extended to each executive officer of the FDIC-supervised 
institution who is a member of the partnership.
    (2) An FDIC-supervised institution is authorized to extend credit 
to any executive officer of the bank for any other purpose not 
specified in Sec.  215.5(c)(1) and (2) of Federal Reserve Board 
Regulation O (12 CFR 215.5(c)(1) and (2)) if the aggregate amount of 
such other extensions of credit does not exceed at any one time the 
higher of 2.5 percent of the FDIC-supervised institution's unimpaired 
capital and unimpaired surplus or $25,000 but in no event more than 
$100,000, provided, however, that no such extension of credit shall be 
subject to this limit if the extension of credit is secured by:
    (i) A perfected security interest in bonds, notes, certificates of 
indebtedness, or Treasury bills of the United States or in other such 
obligations fully guaranteed as to principal and interest by the United 
States;
    (ii) Unconditional takeout commitments or guarantees of any 
department, agency, bureau, board, commission or establishment of the 
United States or any corporation wholly owned directly or indirectly by 
the United States; or
    (iii) A perfected security interest in a segregated deposit account 
in the lending FDIC-supervised institution.
    (3) For the purposes of paragraph (c) of this section, the 
definitions of the terms used in Federal Reserve Board Regulation O 
shall apply including the exclusion of executive officers of an FDIC-
supervised institution's parent bank or savings and loan holding 
company and executive officers of any other subsidiary of that bank or 
savings and loan holding company from the definition of executive 
officer for the purposes of complying with the loan restrictions 
contained in section 22(g) of the Federal Reserve Act. For the purposes 
of complying with Sec.  215.5(d) of Federal Reserve Board Regulation O, 
the reference to ``the amount specified for a category of credit in 
paragraph (c) of this section'' shall be understood to refer to the 
amount specified in paragraph (c)(2) of this Sec.  337.3.
    (d) Definition. For purposes of this section, FDIC-supervised 
institution means an entity for which the FDIC is the appropriate 
Federal banking agency pursuant to section 3(q) of the FDI Act, 12 
U.S.C. 1813(q).
0
17. Revise Sec.  337.11 to read as follows:


Sec.  337.11  Effect on other banking practices.

    (a) Nothing in this part shall be construed as restricting in any 
manner the Corporation's authority to deal with any banking practice 
which is deemed to be unsafe or unsound or otherwise not in accordance 
with law, rule, or regulation; or which violates any condition imposed 
in writing by the Corporation in connection with the granting of any 
application or other request by an FDIC-Supervised institution, or any 
written agreement entered into by such institution with the 
Corporation. Compliance with the provisions of this part shall not 
relieve an FDIC-supervised institution from its duty to conduct its 
operations in a safe and sound manner nor prevent the Corporation from 
taking whatever action it deems necessary and desirable to deal with 
specific acts or practices which, although they do not violate the 
provisions of this part, are considered detrimental to the safety and 
sound operation of the institution engaged therein.
    (b) Definition. FDIC-supervised institution means an entity for 
which the FDIC is the appropriate Federal banking agency pursuant to 
section 3(q) of the FDI Act, 12 U.S.C. 1813(q).

PART 353--SUSPICIOUS ACTIVITY REPORTS

0
18. Revise the authority citation for 12 CFR part 353 to read as 
follows:

    Authority: 12 U.S.C. 1818, 1819; 31 U.S.C. 5318


Sec.  353.1  [Amended]

0
19. Amend Sec.  353.1 by removing the term ``insured nonmember bank'' 
and adding in its place the term ``FDIC-supervised institution''.
0
20. Amend Sec.  353.2 by adding paragraph (c) to read as follows:


Sec.  353.2  Definitions

* * * * *
    (c) FDIC-supervised institution means an entity for which the FDIC 
is the appropriate Federal banking agency pursuant to section 3(q) of 
the FDI Act, 12 U.S.C. 1813(q).


Sec.  353.3  [Amended]

0
21. Amend Sec.  353.3 by:
0
a. Removing the term ``insured nonmember bank'' and adding in its place 
the term ``FDIC-supervised institution'';
0
b. Removing the term ``bank'' and adding in its place the term 
``institution''.

PART 390--REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT 
SUPERVISION

0
22. The authority citation for part 390 continues to read as follows:

    Authority: 12 U.S.C. 1819.

Subpart S--[Removed]

0
23. Remove subpart S consisting of Sec. Sec.  390.330 through 390.368

Federal Deposit Insurance Corporation.

    By order of the Board of Directors.


[[Page 58520]]


    Dated at Washington, DC, on October 15, 2019.
Annmarie H. Boyd,
Assistant Executive Secretary.
[FR Doc. 2019-23115 Filed 10-30-19; 8:45 am]
BILLING CODE 6714-01-P