[Federal Register Volume 86, Number 21 (Wednesday, February 3, 2021)]
[Rules and Regulations]
[Pages 8082-8089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28452]



[[Page 8081]]

Vol. 86

Wednesday,

No. 21

February 3, 2021

Part II





Federal Deposit Insurance Corporation





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12 CFR Parts 303, 308, 338, et al.





Removal of Transferred Office of Thrift Supervision (OTS) Regulations 
Regarding Nondiscrimination Requirements; Application Processing 
Procedures of State Savings Associations and Conforming Amendments to 
Other Regulations; Certain Subordinate Organizations of State Savings 
Associations; and Prompt Corrective Action Directives and Conforming 
Amendments to Other Regulations; Final Rules

  Federal Register / Vol. 86 , No. 21 / Wednesday, February 3, 2021 / 
Rules and Regulations  

[[Page 8082]]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 338 and 390

RIN 3064-AF35


Removal of Transferred Office of Thrift Supervision (OTS) 
Regulations Regarding Nondiscrimination Requirements

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Final rule.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is rescinding 
and removing its regulation titled ``Nondiscrimination Requirements'' 
and amending its regulation titled ``Fair Housing'' to make it 
applicable to State savings associations. These actions will streamline 
the FDIC's rules by eliminating unnecessary, inconsistent, and 
duplicative regulations, and ensure insured State nonmember banks and 
State savings associations generally will be subject to the same 
nondiscrimination requirements.

DATES: The final rule is effective on March 5, 2021. Compliance with 12 
CFR 338.4(b) regarding displaying the current address of the FDIC's 
Consumer Response Center on an Equal Housing Lender poster is mandatory 
on February 3, 2022.

FOR FURTHER INFORMATION CONTACT: Navid Choudhury, Counsel, Legal 
Division, (202) 898-6526, [email protected]; Jamie Goodson, Senior 
Policy Analyst, (202) 898-6685, [email protected]; Ernestine Ward, 
Policy Analyst, (202) 898-3812, [email protected]; and Evelyn Manley, 
Fair Lending Specialist, (202) 898-3775, [email protected], Division of 
Depositor and Consumer Protection.

SUPPLEMENTARY INFORMATION:

I. Background

    Title III of the 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 formerly performed by the 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. Section 316(b) states that if the materials were in effect on 
the day before the transfer date, they continue to be 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\ Codified at 12 U.S.C. 5411.
    \3\ Codified at 12 U.S.C. 5414(b).
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    Section 316(c) of the Dodd-Frank Act \4\ further directed the FDIC 
and the OCC to consult with one another and to publish a list of the 
continued OTS regulations which would be enforced by the FDIC and the 
OCC, respectively. On June 14, 2011, the FDIC's Board of Directors 
approved a ``List of OTS Regulations to be Enforced by the OCC and the 
FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer 
Protection Act.'' This list was published by the FDIC and the OCC as a 
Joint Notice in the Federal Register on July 6, 2011.\5\
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    \4\ Codified at 12 U.S.C. 5414(c).
    \5\ 76 FR 39247 (July 6, 2011).
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    Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act \6\ 
granted the OCC rulemaking authority relating to both State and Federal 
savings associations, the Dodd-Frank Act did not generally affect the 
FDIC's existing authority to issue regulations under the Federal 
Deposit Insurance Act (FDI Act) and other laws as the ``appropriate 
Federal banking agency'' or under similar statutory terminology. 
Section 312(c) of the Dodd-Frank Act amended the definition of 
``appropriate Federal banking agency'' contained in section 3(q) of the 
FDI Act \7\ 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, except in limited circumstances in which certain 
rulemaking authority is specifically given to another agency, 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 generally authorized to issue, modify and rescind 
regulations involving such associations, insured State nonmember banks, 
and insured branches of foreign banks.
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    \6\ Codified at 12 U.S.C. 5412(b)(2)(B)(i)(II).
    \7\ 12 U.S.C. 1813(q).
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    As noted, on June 14, 2011, operating pursuant to this authority, 
the FDIC's Board of Directors reissued and redesignated certain 
transferred OTS regulations. These transferred OTS regulations were 
published as new FDIC regulations in the Federal Register on August 5, 
2011.\8\ When it republished the transferred OTS regulations as new 
FDIC regulations, the FDIC specifically noted that its staff would 
evaluate the transferred OTS regulations and might later recommend 
incorporating them into other FDIC regulations, amending them, or 
rescinding them, as appropriate.
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    \8\ 76 FR 47652 (Aug. 5, 2011).
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    One of the OTS rules transferred to the FDIC requires State savings 
associations to not discriminate with respect to lending, employment, 
and other services provided. The OTS rule, formerly found at 12 CFR 
part 528 (part 528), was transferred to the FDIC with only technical 
changes and is now found in the FDIC's rules at part 390, subpart G, 
entitled ``Nondiscrimination Requirements.''

II. The Proposal

A. Removal of Part 390, Subpart G, Nondiscrimination Requirements

    On September 25, 2020, the FDIC published a notice of proposed 
rulemaking (NPR or ``proposal'') regarding the removal of part 390, 
subpart G (85 FR 60389). Although few provisions of part 390, subpart 
G, have a direct counterpart within the FDIC's regulations, the 
provisions are largely duplicative of regulations implementing Federal 
laws (Equal Credit Opportunity Act (ECOA), Fair Housing Act (FHA), 
Equal Employment Opportunity Act (EEOA), and other laws concerning 
nondiscrimination in lending, employment, and services) implemented by 
other agencies. Regarding the functions of the former OTS that were 
transferred to the FDIC, section 316(b)(3) of the Dodd-Frank Act \9\ 
provides that the former OTS regulations will be enforceable by the 
FDIC until they are modified, terminated, set aside, or superseded in 
accordance with applicable law. After careful review of part 390, 
subpart G, the FDIC, as the appropriate Federal banking agency for 
State savings associations, proposed to rescind and remove part 390, 
subpart G, in its entirety, because, as discussed in the NPR, it is 
duplicative, unnecessary, and burdensome to require State savings

[[Page 8083]]

associations to comply with additional requirements to which insured 
State nonmember banks are not subject. The FDIC received no comments on 
the proposal to rescind and remove part 390, subpart G.
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    \9\ 12 U.S.C. 5414(b)(3).
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    For a statement of the rationale for rescission and removal of each 
section of subpart G, the reader is referred to the fulsome 
explanations provided in the NPR, which the FDIC references here as the 
basis for finalizing the regulations as proposed. In several instances, 
the proposal to remove a specific section of subpart G was coupled with 
a proposed amendment to part 338 of the FDIC's regulations. These 
amendments are also discussed below.

B. Amendments to Part 338 Fair Housing

    The FDIC's part 338, Fair Housing, applies to insured State 
nonmember banks and addresses discrimination in advertising and 
recordkeeping requirements under ECOA and the Home Mortgage Disclosure 
Act (HMDA). The FDIC proposed to make technical conforming edits to 
part 338 to encompass State savings associations and update the 
regulation. In short, the FDIC proposed to: (1) Revise Sec.  338.1 to 
reflect that the advertising provisions of subpart A apply to State 
savings associations and their subsidiaries, to conform to and reflect 
the scope of FDIC's current supervisory responsibilities as the 
appropriate Federal banking agency for State savings associations; (2) 
in Sec.  338.2, add a defined term ``FDIC-supervised institution,'' 
defined to mean ``either a bank [defined in Sec.  338.2(a) to mean ``an 
insured State nonmember bank as defined in section 3 of the Federal 
Deposit Insurance Act''] or a State savings association''; (3) add a 
new subsection to define ``State savings association'' as having ``the 
same meaning as in section 3(b)(3) of the Federal Deposit Insurance 
Act;'' \10\ (4) make conforming technical edits throughout, including 
replacing the term ``FDIC-supervised institution'' or ``institution'' 
in place of ``bank'' throughout the rule where necessary and revising 
references to the FRB's 12 CFR parts 202 and 203 throughout part 338 to 
refer to the Bureau of Consumer Financial Protection's (CFPB) 12 CFR 
parts 1002 and 1003, respectively; and (5) amend Sec.  338.4 to update 
the text required for the Equal Housing Lender poster to the correct 
address for the FDIC Consumer Response Center. The FDIC received no 
comments on the proposal to amend part 338.
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    \10\ 12 U.S.C. 1813(b)(3).
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    The Supplementary Information section of this final rule sets forth 
the rationales for the amendments to the FDIC's regulations located in 
part 338 because, as proposed, the final rule revises FDIC regulations 
that will remain in place, albeit in an amended form.
1. Section 338.1--Purpose
    Section 338.1 states that its purposes are to prohibit insured 
State nonmember banks from engaging in discriminatory advertising with 
regard to residential real estate-related transactions and require them 
to publicly display either the Equal Housing Lender poster set forth in 
Sec.  338.4(b) of the FDIC's regulations or the Equal Housing 
Opportunity poster prescribed in 24 CFR part 110 in HUD's regulations. 
The FDIC proposed to amend Sec.  338.1 to change references to 
``insured State nonmember banks'' to refer to ``FDIC-supervised 
institutions'' to reflect that Sec.  338.1 applies to all institutions 
for which the FDIC is the appropriate Federal banking agency.
2. Section 338.2--Definitions Applicable to This Subpart
    Section 338.2 defines terms used in subpart A of part 338, 
including the term ``bank'' defined in Sec.  338.2(a) to mean ``an 
insured state nonmember bank as defined in section 3 of the Federal 
Deposit Insurance Act.'' The FDIC proposed to add a new defined term 
``FDIC-supervised institution'' meaning a bank or a State savings 
association to Sec.  338.2(c) and to add to Sec.  338.2(f), a new 
defined term ``State savings association'' having ``the same meaning as 
in section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 
1813(b)(3).'' The FDIC also proposed to make conforming technical edits 
to other subsections in Sec.  338.2 to reflect the re-ordering of 
definitions.
3. Section 338.3--Nondiscriminatory Advertising
    Section 338.3 provides certain requirements with respect to 
dwelling-related advertisements to reflect the bank's nondiscrimination 
lending practice and prohibits such advertisements from including 
``words, symbols, models, or other forms of communication which 
express, imply, or suggest a discriminatory preference or policy of 
exclusion in violation of the provisions of the FHA or ECOA. To reflect 
that Sec.  338.3 applies to all institutions for which the FDIC is the 
appropriate Federal banking agency, the FDIC proposed to amend Sec.  
338.3 to change references to ``bank'' to refer to ``FDIC-supervised 
institution.''
4. Section 338.4--Fair Housing Poster
    Section 338.4(a) requires insured State nonmember banks engaged in 
extending dwelling-related loans to conspicuously display either an 
Equal Housing Lender poster or an Equal Housing Opportunity poster ``in 
a central location within the bank where deposits are received or where 
such loans are made in a manner clearly visible to the general public 
entering the area, where the poster is displayed.'' This requirement is 
substantially similar to the requirement in Sec.  390.146 for State 
savings associations to display an Equal Housing Lender poster, which 
the FDIC proposed to rescind and remove. To reflect that Sec.  338.4(a) 
applies to all institutions for which the FDIC is the appropriate 
Federal banking agency, the FDIC proposed to amend Sec.  338.4(a) to 
change references to ``insured State nonmember banks'' to refer to 
``FDIC-supervised institutions.''
    Section 338.4(b) sets forth the required text of the FDIC's Equal 
Housing Lender poster, including the former mailing address of the 
FDIC's Consumer Response Center (CRC), formatted as a Portable Document 
Format (PDF) image. When the CRC mailing address changed in 2011, the 
FDIC made available to FDIC-supervised institutions an Equal Housing 
Lender poster with the correct address of the CRC, both in English and 
in Spanish.\11\ However, because the CRC mailing address may change in 
the future, the FDIC proposed to amend Sec.  338.4(b) to reflect that 
the mailing address stated on the Equal Housing Lender poster should be 
the address for the CRC stated on the FDIC's website at 
www.fdic.gov.\12\ Furthermore, the FDIC proposed to set forth the 
required text of the Equal Housing Lender poster in Sec.  338.4(b) as a 
text statement rather than as a PDF image.
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    \11\ The poster is available to both insured State nonmember 
banks and State savings associations. Moreover, the current CRC 
mailing address is correctly stated in FDIC regulations applicable 
to State savings associations. 12 CFR 390.146.
    \12\ Currently, the mailing address for the Consumer Response 
Center (1100 Walnut St., Box #11 Kansas City, MO 64106) is provided 
at https://www.fdic.gov/consumers/assistance/filecomplaint.html. 
Since May 31, 2012, Regulation B has required the use of that 
address in adverse action notices, as applicable. See Board of 
Governors of the Federal Reserve System, Final Rule, Equal Credit 
Opportunity, 76 FR 31451 (Jun. 1, 2011).
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    To assist FDIC-supervised institutions, the FDIC expects to 
continue to provide them with access to a poster stating the required 
text, including the accurate CRC mailing

[[Page 8084]]

address. With the FDIC adopting the proposal as final, no change to 
posters would be required of FDIC-supervised institutions that use an 
Equal Housing Lender poster obtained from the FDIC, because the CRC 
mailing address was updated in 2011. The FDIC believes that few insured 
State nonmember banks make their own Equal Housing Lender poster based 
on the text of Sec.  338.4(b). Nonetheless, to facilitate the 
transition to the updated poster, the FDIC is providing a one-year 
transition period for FDIC-supervised institutions to change their 
posters to reflect the current CRC mailing address, if needed. That is, 
the effective date of Sec.  338.4(b), as amended, is one year after 
this final rule amending the provision is published in the Federal 
Register.
5. Section 338.5--Purpose
    Section 338.5 states that its purpose is to notify insured State 
nonmember banks of their duty both to collect and retain certain 
information about a home loan applicant's personal characteristics in 
accordance with Regulation B and to maintain, update and report a 
register of home loan applications in accordance with Regulation C. To 
reflect that Sec.  338.5 applies to all institutions for which the FDIC 
is the appropriate Federal banking agency, the FDIC proposed to amend 
Sec.  338.5 to change references to ``insured State nonmember banks'' 
to refer to ``FDIC-supervised institutions.'' The FDIC also proposed to 
make technical amendments to Sec.  338.5 to reflect that Regulation B 
and Regulation C have been re-designated as 12 CFR part 1002 and 12 CFR 
part 1003, respectively, and are implemented by the CFPB.
6. Section 338.6--Definitions Applicable to This Subpart
    Section 338.6 defines terms used in subpart B of part 338, 
including the term ``bank'' defined in Sec.  338.6(a) to mean ``an 
insured State nonmember bank as defined in section 3 of the Federal 
Deposit Insurance Act.'' The FDIC proposed to add to Sec.  338.2(c) a 
new defined term ``FDIC-supervised institution'' meaning a bank or a 
State savings association and add to Sec.  338.6(d) a new defined term 
``State savings association'' having ``the same meaning as in section 
(3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).''
7. Section 338.7--Recordkeeping Requirements
    Section 338.7 requires banks that receive an application for credit 
primarily for the purchase or refinancing of a dwelling occupied or to 
be occupied by the applicant as a principal residence where the 
extension of credit will be secured by the dwelling to request and 
retain the monitoring information required by Regulation B.\13\ To 
reflect that Sec.  338.7 applies to all institutions for which the FDIC 
is the appropriate Federal banking agency, the FDIC proposed to amend 
Sec.  338.7 to change references to ``bank'' to refer to ``FDIC-
supervised institution.'' The FDIC also proposed to make technical 
amendments to Sec.  338.7 to reflect that Regulation B has been re-
designated as 12 CFR part 1002 and is implemented by the CFPB.
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    \13\ This requirement relates to the collection of information 
for monitoring purposes required by 12 CFR 1002.13.
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8. Section 338.8-- Compilation of Loan Data in Register Format
    Section 338.8 requires banks and other lenders required to file a 
HMDA loan/application register (LAR) with the FDIC to maintain, update 
and report such LAR in accordance with Regulation C. To reflect that 
Sec.  338.8 applies to all institutions for which the FDIC is the 
appropriate Federal banking agency, the FDIC proposed to amend Sec.  
338.8 to change references to ``bank'' to refer to ``FDIC-supervised 
institution.'' Additionally, to reflect amendments made to Regulation C 
regarding the responsibilities of a financial institution with respect 
to HMDA LAR data, the FDIC proposed to amend Sec.  338.8 to require 
banks and other lenders required to file a HMDA LAR with the FDIC to 
collect, record, and report such LAR in accordance with Regulation C. 
The FDIC also proposed to make technical amendments to Sec.  338.8 to 
reflect that Regulation C has been re-designated as 12 CFR part 1003 
and is implemented by the CFPB.
9. Section 338.9--Mortgage Lending of a Controlled Entity
    Section 338.9 establishes requirements that apply if a bank refers 
applicants to a ``controlled entity,'' as defined in Sec.  338.6, and 
purchases any home purchase loans or home improvement loans (as defined 
in Regulation C) that are originated by the controlled entity, as a 
condition to transacting any business with the controlled entity.\14\ 
In such cases, Sec.  338.9 provides that the bank must require the 
controlled entity to enter into a written agreement with the bank that 
states that the controlled entity must comply with the requirements of 
Sec. Sec.  338.3, 338.4 and 338.7 and, if the controlled entity is 
subject to Regulation C, Sec.  338.8. Further, the written agreement 
must provide that the controlled entity must open its books and records 
to FDIC examination and comply with all FDIC instructions and orders 
with respect to its home loan practices.
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    \14\ Pursuant to Sec.  338.6(b), ``controlled entity'' means ``a 
corporation, partnership, association, or other business entity with 
respect to which a bank possesses, directly or indirectly, the power 
to direct or cause the direction of management and policies, whether 
through the ownership of voting securities, by contract, or 
otherwise.''
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    Because this final rule is intended to rescind and remove former 
OTS regulations that are duplicative of regulations under ECOA, FHA, or 
EEOA, the FDIC did not propose to impose substantive requirements 
regarding the business transactions between a State savings association 
and any entity it controls and therefore did not propose to replace the 
term ``bank'' with the term ``FDIC-supervised institution'' in Sec.  
338.9. However, the FDIC proposed to make technical amendments to Sec.  
338.9 to reflect that Regulation C has been re-designated as 12 CFR 
part 1003 and is implemented by the CFPB.

III. Comments

    The FDIC received no comments on the rescission and removal of part 
390, subpart G, nor to the amendments to part 338.

IV. The Final Rule

    For the reasons stated herein and in the NPR, the FDIC is adopting 
the proposal as proposed.

V. Expected Effects

    As of June 30, 2020, the FDIC supervised 3,270 depository 
institutions,\15\ of which 35 are State savings associations.\16\
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    \15\ FDIC-supervised institutions are set forth in 12 U.S.C. 
1813(q)(2).
    \16\ FDIC Call Report data, June 30, 2020.
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    The final rule rescinds Sec. Sec.  390.140 and 390.141. As 
discussed previously, these sections include definitions and cross-
references to other parts of section 390, so their rescission has no 
independent significance for institutions or applicants, but rather is 
a technical amendment associated with the rescission of subpart G of 
part 390 in its entirety.
    The final rule rescinds Sec.  390.142. As discussed in the NPR, 
this section has substantial overlap with the requirements of ECOA and 
Regulation B and the FHA and HUD's FHA regulations. Therefore, the FDIC 
believes that these aspects of the final rule are unlikely to 
significantly affect FDIC-supervised institutions or applicants.

[[Page 8085]]

    The final rule rescinds Sec.  390.143. As discussed in the NPR, 
aspects of Sec.  390.143 are either duplicative of prohibitions under 
the general fair lending laws. With regard to Sec.  390.143(b), the 
rule reduces compliance requirements associated with maintaining and 
distributing relevant paperwork. The FDIC believes that this is likely 
to pose a relatively small benefit to the 35 institutions to which it 
applies. Further, the FDIC believes that it is unlikely that the 
rescission of the requirement to establish, maintain, and distribute 
upon request nondiscriminatory loan underwriting standards for these 35 
State savings associations would lead to an increase in discriminatory 
lending behavior because these institutions are still subject to the 
general fair lending laws. Therefore, the FDIC does not believe that 
this aspect of the final rule, if adopted, is likely to have 
substantive effects on FDIC-supervised institutions or applicants.
    The final rule rescinds Sec.  390.144. As discussed in the NPR, 
Section 390.144(a) is substantially similar to, and duplicative of, 
prohibitions under the general Federal fair lending laws.\17\ The FDIC 
also believes that the requirement to post an Equal Housing Lender 
poster, discussed above in connection with Sec.  338.4, serves a 
substantially similar purpose as the requirement to ``inform each 
inquirer of his or her right to file a written loan application'' in 
Sec.  390.144(b). Therefore, the FDIC believes that the rescission of 
Sec.  390.144 is unlikely to have any substantive effect on FDIC-
supervised institutions or applicants.
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    \17\ See, e.g., 15 U.S.C. 1691(a); 42 U.S.C. 3605; 12 CFR 
1002.4; 24 CFR 100.120.
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    The final rule rescinds Sec.  390.145. As discussed in the NPR, 
Section 390.145 is substantially similar to Sec.  338.4 and the rule 
amends Sec.  338.4 to cover State savings associations in addition to 
insured State nonmember banks. Therefore, the FDIC believes that this 
aspect of the final rule is unlikely to have any substantive effect on 
FDIC-supervised institutions or applicants.
    The final rule rescinds Sec.  390.146. As discussed in the NPR, the 
requirements of Sec.  390.146 are substantially similar to the 
requirements applicable to insured State nonmember banks under Sec.  
338.4. Section 338.4, however, unlike Sec.  390.146, does not include a 
``recommendation'' that a Spanish-language version of the Equal Housing 
Lender poster be posted in offices serving areas with a substantial 
Spanish-speaking population. The FDIC does, however, make a Spanish-
language poster available to the institutions it supervises. Given the 
substantive similarity of much of Sec.  390.146 to Sec.  338.4, the 
FDIC believes that rescinding it is unlikely to have substantial 
effects on covered institutions or applicants.
    With the adoption of this final rule the FDIC rescinds Sec.  
390.147. As discussed in the NPR, the FDIC believes that Sec.  390.147 
is duplicative now that reporting reason for denial is required rather 
than optional under Regulation C. Further, since Regulation C provides 
a partial exemption from reporting reason for denial and certain other 
data points for financial institutions that meet specified conditions, 
but no such exemption exists for State savings associations, the final 
rule establishes parity with respect to the reporting requirements for 
HMDA LARs for State savings associations and other FDIC-supervised 
institutions. The FDIC believes that this aspect of the final rule is 
unlikely to significantly affect FDIC-supervised institutions or 
applicants.
    The final rule rescinds Sec.  390.148. As discussed in the NPR, the 
FDIC believes that there is significant overlap between the 
requirements of Sec.  390.148(a) through (d) and various aspects of the 
EEOA. Further, Sec.  390.148(e) and (f) references multiple employment 
laws, including the EEOA, which with the rescission of the rest of 
Sec.  390.148, would be unnecessary. Therefore, the FDIC believes that 
this aspect of the final rule is unlikely to substantively affect FDIC-
supervised institutions or applicants.
    The final rescinds Sec.  390.149. As discussed in the NPR, the FDIC 
has procedures for referring complaints to HUD regarding lending 
discrimination by financial institutions and these procedures apply to 
complaints involving lending by State savings associations. However, 
there appears to be no equivalent requirement to the provisions in 
Sec.  390.149 regarding referring complaints to the Equal Employment 
Opportunity Commission (EEOC) regarding employment discrimination by 
FDIC-supervised institutions. This aspect of the final rule will thus 
create parity between insured State nonmember banks and State savings 
associations with respect to complaints about discriminatory lending. 
Given that FDIC-supervised institutions are still subject to applicable 
elements of the EEOA and FDIC regulations and procedures, the FDIC does 
not believe that this aspect of the final rule is likely to have a 
substantive effect on covered institutions or their employees.
    The final rule rescinds Sec.  390.150. As discussed in the NPR, 
this section contains guidelines intended to serve as a resource for 
State savings associations when developing and implementing 
nondiscriminatory lending policies. State savings associations, like 
other FDIC-supervised banks, remain subject to Federal fair lending 
laws and regulations and the FDIC does not believe removal of these 
guidelines will have any meaningful effect on these institutions or 
their applicants.
    Finally, the final rule makes some technical changes to FDIC's part 
338 in order to make it applicable to State savings associations and 
provide for Equal Housing Lender posters to state the accurate CRC 
mailing address. As previously discussed, these changes are unlikely to 
have significant effects on State savings associations because those 
savings associations are already subject to substantively similar 
regulations. Rescinding part 390, subpart G, also will serve to 
streamline the FDIC's rules and eliminate unnecessary, inconsistent, 
and duplicative regulations. The final rule will ensure that insured 
State nonmember banks and State savings associations will be subject to 
the same antidiscrimination requirements.

VI. Alternatives

    Several alternatives to the final rule were available to the FDIC. 
The FDIC could have retained the current regulations in part 390, 
subpart G, but chose not to do so since most of the requirements in 
subpart G are duplicative of or substantively similar to existing 
requirements under Federal law or under the FDIC's current fair housing 
requirements in part 338. As discussed in the NPR, the FDIC also could 
have retained certain requirements in subpart G that the OTS issued 
pursuant to the Home Owners' Loan Act, but chose not to do.
    In the instances where the regulations in part 390, subpart G, were 
more stringent than similar requirements for insured State nonmember 
banks, the FDIC could have applied those requirements to insured State 
nonmember banks. However, the FDIC chose not to adopt this alternative 
because it believes the fair lending laws and regulations that already 
apply to insured State nonmember banks provide an appropriate and 
sufficient framework to prohibit discrimination.
    The FDIC believes that this final rule, which removes and rescinds 
part 390, subpart G, and makes the FDIC's existing nondiscrimination 
regulations applicable to State savings associations, is less 
burdensome to State savings associations and the public than the 
alternatives discussed above since it would promote consistency among 
the

[[Page 8086]]

regulatory requirements for all FDIC-supervised institutions and 
improve the public's understanding and ease of reference. Additionally, 
the FDIC believes that the final rule does not materially change the 
nondiscrimination requirements to which insured State nonmember banks 
and State savings associations are required to adhere, relative to the 
alternatives discussed.

VII. Administrative Law Matters

A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
of 1995 (PRA),\18\ 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. The rescission and removal from FDIC regulations 
of part 390, subpart G, does not create new or modify existing 
information collection requirements. Accordingly, no submission to OMB 
will be made with respect to the final rule.
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    \18\ 44 U.S.C. 3501-3521.
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B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires that, in 
connection with a rulemaking, an agency prepare and make available for 
public comment a final regulatory flexibility analysis describing the 
impact of the final rule on small entities.\19\ However, a regulatory 
flexibility analysis is not required if the agency certifies that the 
final rule will not have a significant economic impact on a substantial 
number of small entities. The Small Business Administration (SBA) has 
defined ``small entities'' to include banking organizations with total 
assets of less than or equal to $600 million that are independently 
owned and operated or owned by a holding company with less than or 
equal to $600 million in total assets.\20\ 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 described below and 
under section 605(b) of the RFA, the FDIC certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \19\ 5 U.S.C. 601 et seq.
    \20\ The SBA defines a small banking organization as having $600 
million or less in assets, where an organization'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). In its 
determination, the ``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 covered entity is ``small'' for the purposes 
of RFA.
---------------------------------------------------------------------------

    As of June 30, 2020, the FDIC supervised 3,270 depository 
institutions,\21\ of which 2,492 were considered small entities for the 
purposes of RFA.\22\ There are 33 State savings associations that are 
small entities for the purposes of RFA.\23\ This final rule rescinds 
Sec. Sec.  390.140 and 390.141. As discussed previously, these sections 
include definitions and cross-references to other parts of section 390, 
so their rescission has no independent significance for institutions or 
borrowers, but rather is a technical amendment associated with the 
proposal to rescind subpart G of part 390 in its entirety.
---------------------------------------------------------------------------

    \21\ FDIC-supervised institutions are set forth in 12 U.S.C. 
1813(q)(2).
    \22\ FDIC Call Report data, June 30, 2020.
    \23\ Id.
---------------------------------------------------------------------------

    As previously discussed, this final rule rescinds Sec.  390.142. 
This section has substantial overlap with the requirements of ECOA and 
Regulation B and the FHA and HUD's FHA regulations. Therefore, the FDIC 
believes that these aspects of the final rule are unlikely to 
significantly affect small FDIC-supervised institutions or borrowers.
    The final rule rescinds Sec.  390.143. As discussed previously, 
aspects of Sec.  390.143 are duplicative of prohibitions under the 
general fair lending laws. With regard to Sec.  390.143(b), the final 
rule reduces compliance requirements associated with maintaining and 
distributing relevant paperwork. The FDIC believes that this is likely 
to pose a relatively small benefit to the 33 small institutions to 
which it applies. Further, the FDIC believes that it is unlikely that 
the rescission of the requirement to establish, maintain, and 
distribute upon request nondiscriminatory loan underwriting standards 
for these 33 small State savings associations will lead to an increase 
in discriminatory lending behavior because these institutions are still 
subject to the general fair lending laws. Therefore, the FDIC does not 
believe that this aspect of the final rule is likely to have 
substantive effects on small FDIC-supervised institutions or borrowers.
    As discussed previously, the final rule rescinds Sec.  390.144. 
Section 390.144(a) is substantially similar to, and duplicative of, 
prohibitions under the general Federal fair lending laws.\24\ The FDIC 
also believes that the requirement to post an Equal Housing Lender 
poster, discussed above in connection with 12 CFR 338.4, serves a 
substantially similar purpose as the requirement to ``inform each 
inquirer of his or her right to file a written loan application'' in 12 
CFR 390.144(b). Therefore, the FDIC believes that the rescission of 
Sec.  390.144 is unlikely to have any substantive effect on small FDIC-
supervised institutions or borrowers.
    As discussed previously, the final rule rescinds Sec.  390.145. 
Section 390.145 is substantially similar to Sec.  338.4 and the final 
rule amends Sec.  338.4 to cover State savings associations in addition 
to insured State nonmember banks. Therefore, the FDIC believes that 
this aspect of the final rule is unlikely to have any substantive 
effect on small FDIC-supervised institutions or borrowers.
    As discussed previously, the final rule rescinds Sec.  390.146. The 
requirements of Sec.  390.146 are substantially similar to the 
requirements applicable to insured State nonmember banks under Sec.  
338.4. However, Sec.  338.4, unlike Sec.  390.146, does not include a 
``recommendation'' that a Spanish-language version of the Equal Housing 
Lender poster be posted in offices serving areas with a substantial 
Spanish-speaking population. The FDIC does make a Spanish-language 
poster available to the institutions it supervises. Given the 
substantive similarity of much of Sec. Sec.  390.146 to 338.4, the FDIC 
believes that rescinding it is unlikely to have substantial effects on 
small covered institutions or borrowers.
    The final rule rescinds Sec.  390.147. As previously discussed, the 
FDIC believes that Sec.  390.147 is duplicative now that reporting 
reason for denial is required rather than optional under Regulation C. 
Further, since Regulation C provides a partial exemption from reporting 
reason for denial and certain other data points for financial 
institutions that meet specified conditions, but no such exemption 
exists for State savings associations, the final rule establishes 
parity with respect to the reporting requirements for HMDA LARs for 
State savings associations and other FDIC-supervised institutions. The 
FDIC believes that this aspect of the final rule is unlikely to 
substantively affect small FDIC-supervised institutions or borrowers.
    As previously discussed, the final rule rescinds Sec.  390.148. The 
FDIC believes that there is significant overlap between the 
requirements of Sec.  390.148(a)-(d) and

[[Page 8087]]

various aspect of the EEOA. Further, Sec.  390.148(e) & (f) references 
multiple employment laws, including the EEOA, which if the rest of 
Sec.  390.148 were rescinded as proposed, would be unnecessary. 
Therefore, the FDIC believes that this aspect of the final rule is 
unlikely to substantively affect small FDIC-supervised institutions or 
borrowers.
    As previously discussed, the final rule rescinds Sec.  390.149. The 
FDIC has procedures for referring complaints to HUD regarding lending 
discrimination by financial institutions and these procedures apply to 
complaints involving lending by State savings associations. However, 
there appears to be no equivalent requirement to the provisions in 
Sec.  390.149 regarding referring complaints to the EEOC regarding 
employment discrimination by FDIC-supervised institutions. This aspect 
of the final rule thus creates parity between State nonmember banks and 
State savings associations with respect to discriminatory complaints. 
Given that FDIC-supervised institutions are still subject to applicable 
elements of the EEOA and FDIC regulations and procedures, the FDIC does 
not believe that this aspect of the final rule is likely to have a 
substantive effect on covered institutions or their employees.
    As previously discussed, the final rule rescinds Sec.  390.150. 
This section contains guidelines intended to serve as a resource for 
State savings associations when developing and implementing 
nondiscriminatory lending policies. Small State savings associations, 
like other FDIC-supervised banks, remain subject to Federal fair 
lending laws and regulations and the FDIC does not believe removal of 
these guidelines will have any meaningful effect on these institutions 
or their borrowers.
    Finally, the final rule makes some technical changes to FDIC's part 
338 in order to make it applicable to State savings associations and 
provide for Equal Housing Lender posters to state the accurate CRC 
mailing address. As previously discussed, these changes are unlikely to 
pose significant effects for small State savings associations because 
they are already subject to substantively similar regulations.
    Rescinding part 390, subpart G, also will serve to streamline the 
FDIC's rules and eliminate unnecessary, inconsistent, and duplicative 
regulations. The final rule generally provides for all small insured 
State nonmember banks and State savings associations to be subject to 
the same nondiscrimination requirements.
    The FDIC does not have data with which to estimate the costs that 
State savings associations currently incur to comply with subpart G or 
how those costs will change pursuant to this final rule. However, since 
this final rule affects only 33 small entities, and since the 
differences between subpart G and existing regulation and law are 
modest, the FDIC certifies that this final rule will not have a 
significant economic effect on a substantial number of small entities.

C. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act \25\ requires each 
Federal banking agency to use plain language in all of its proposed and 
final rules published after January 1, 2000. The FDIC has sought to 
present the final rule in a simple and straightforward manner and did 
not receive any comments on the use of plain language.
---------------------------------------------------------------------------

    \25\ 12 U.S.C. 4809.
---------------------------------------------------------------------------

D. The Economic Growth and Regulatory Paperwork Reduction Act

    Under section 2222 of the Economic Growth and Regulatory Paperwork 
Reduction Act of 1996 (EGRPRA), 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.\26\ 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 burdens, and further measures the 
FDIC will take to address issues that were identified.\27\ 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 G, this 
final rule complements other actions that the FDIC has taken, 
separately and with the other Federal banking agencies, to further the 
EGRPRA mandate.
---------------------------------------------------------------------------

    \26\ Public Law 104-208, 110 Stat. 3009 (1996).
    \27\ 82 FR 15900 (March 30, 2017).
---------------------------------------------------------------------------

E. Riegle Community Development and Regulatory Improvement Act of 1994

    Pursuant to section 302(a) of the Riegle Community Development and 
Regulatory Improvement Act (RCDRIA),\28\ in determining the effective 
date and administrative compliance requirements for new regulations 
that impose additional reporting, disclosure, or other requirements on 
insured depository institutions (IDIs), each Federal banking agency 
must 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, section 302(b) of RCDRIA 
requires new regulations and amendments to regulations that impose 
additional reporting, disclosures, or other new requirements on IDIs 
generally to 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 form.\29\
---------------------------------------------------------------------------

    \28\ 12 U.S.C. 4802(a).
    \29\ 12 U.S.C. 4802(b).
---------------------------------------------------------------------------

    As previously stated, the final rule removes part 390, subpart G, 
from the Code of Federal Regulations because, after careful review and 
consideration, the FDIC believes it is largely unnecessary, redundant, 
or duplicative of existing statutes and regulations. In addition, the 
final also includes amendments to the FDIC's part 338 to make it 
applicable to State savings associations, introduce new definitions, 
and to make technical conforming edits. These amendments do not impose 
any additional reporting, disclosure, or other requirements on IDIs. 
Because the final rule does not impose additional reporting, 
disclosure, or other new requirements on IDIs, section 302 of the 
RCDRIA does not apply.

F. Congressional Review Act

    For purposes of the Congressional Review Act, the Office of 
Management and Budget (OMB) makes a determination as to whether a final 
rule constitutes a ``major'' rule. If a rule is deemed a ``major rule'' 
\30\ by the OMB, the Congressional Review Act generally provides that 
the rule may not take effect until at least 60 days following its 
publication.\31\
---------------------------------------------------------------------------

    \30\ 5 U.S.C. 801 et seq.
    \31\ 5 U.S.C. 801(a)(3).
---------------------------------------------------------------------------

    The Congressional Review Act (CRA) defines a ``major rule'' as any 
rule that the Administrator of the Office of Information and Regulatory 
Affairs of the OMB finds has resulted in or is likely to result in (A) 
an annual effect on the economy of $100,000,000 or more; (B) a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies or geographic regions, or 
(C) significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign

[[Page 8088]]

based enterprises in domestic and export markets.\32\
---------------------------------------------------------------------------

    \32\ 5 U.S.C. 804(2).
---------------------------------------------------------------------------

    The OMB has determined that this final rule is not a ``major rule'' 
for purposes of the CRA. As required by the Congressional Review Act, 
the FDIC will submit the final rule and other appropriate reports to 
Congress and the Government Accountability Office for review.

List of Subjects

12 CFR Part 338

    Aged, Banks, banking, Civil rights, Credit, Fair housing, 
Individuals with disabilities, Marital status discrimination, 
Mortgages, Religious discrimination, Reporting and recordkeeping 
requirements, Savings associations, Sex discrimination, Signs and 
symbols.

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.

Authority and Issuance

    For the reasons stated in the preamble, the FDIC amends 12 CFR 
parts 338 and 390 as follows:

0
1. Revise part 338 to read as follows:

PART 338--FAIR HOUSING

Subpart A--Advertising
Sec.
338.1 Purpose.
338.2 Definitions applicable to this subpart.
338.3 Nondiscriminatory advertising.
338.4 Fair housing poster.
Subpart B--Recordkeeping
338.5 Purpose.
338.6 Definitions applicable to this subpart.
338.7 Recordkeeping requirements.
338.8 Compilation of loan data in register format.
338.9 Mortgage lending of a controlled entity.

    Authority:  12 U.S.C. 1817, 1818, 1819, 1820(b), 2801 et seq.; 
15 U.S.C. 1691 et seq.; 42 U.S.C. 3605, 3608; 12 CFR parts 1002, 
1003; 24 CFR part 110.

Subpart A--Advertising


Sec.  338.1  Purpose.

    The purpose of this subpart is to prohibit FDIC-supervised 
institutions from engaging in discriminatory advertising with regard to 
residential real estate-related transactions. This subpart also 
requires FDIC-supervised institutions to publicly display either the 
Equal Housing Lender poster set forth in Sec.  338.4(b) or the Equal 
Housing Opportunity poster prescribed by 24 CFR part 110 of the United 
States Department of Housing and Urban Development's regulations. This 
subpart enforces section 805 of title VIII of the Civil Rights Act of 
1968, 42 U.S.C. 3601-3619 (Fair Housing Act), as amended by the Fair 
Housing Amendments Act of 1988.


Sec.  338.2  Definitions applicable to this subpart.

    For purposes of this subpart:
    (a) Bank means an insured state nonmember bank as defined in 
section 3 of the Federal Deposit Insurance Act.
    (b) Dwelling means any building, structure, or portion thereof 
which is occupied as, or designed or intended for occupancy as, a 
residence by one or more families, and any vacant land which is offered 
for sale or lease for the construction or location thereon of any such 
building, structure, or portion thereof.
    (c) FDIC-supervised institution means either a bank or a State 
savings association.
    (d) Handicap means, with respect to a person:
    (1) A physical or mental impairment which substantially limits one 
or more of such person's major life activities;
    (2) A record of having such an impairment; or
    (3) Being regarded as having such an impairment, but such term does 
not include current, illegal use of or addiction to a controlled 
substance (as defined in section 102 of the Controlled Substances Act 
(21 U.S.C. 802)).
    (e) Familial status means one or more individuals (who have not 
attained the age of 18 years) being domiciled with:
    (1) A parent or another person having legal custody of such 
individual or individuals; or
    (2) The designee of such parent or other person having such 
custody, with the written permission of such parent or other person; 
and
    (3) The protections afforded against discrimination on the basis of 
familial status shall apply to any person who is pregnant or is in the 
process of securing legal custody of any individual who has not 
attained the age of 18 years.
    (f) State savings association has the same meaning as in section 
(3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).


Sec.  338.3  Nondiscriminatory advertising.

    (a) Any FDIC-supervised institution which directly or through third 
parties engages in any form of advertising of any loan for the purpose 
of purchasing, constructing, improving, repairing, or maintaining a 
dwelling or any loan secured by a dwelling shall prominently indicate 
in such advertisement, in a manner appropriate to the advertising 
medium and format utilized, that the FDIC-supervised institutions makes 
such loans without regard to race, color, religion, national origin, 
sex, handicap, or familial status.
    (1) With respect to written and visual advertisements, this 
paragraph (a) may be satisfied by including in the advertisement a copy 
of the logotype with the Equal Housing Lender legend contained in the 
Equal Housing Lender poster prescribed in Sec.  338.4(b) or a copy of 
the logotype with the Equal Housing Opportunity legend contained in the 
Equal Housing Opportunity poster prescribed in 24 CFR 110.25(a) of the 
United States Department of Housing and Urban Development's 
regulations.
    (2) With respect to oral advertisements, this paragraph (a) may be 
satisfied by a statement, in the spoken text of the advertisement, that 
the FDIC-supervised institution is an ``Equal Housing Lender'' or an 
``Equal Opportunity Lender.''
    (3) When an oral advertisement is used in conjunction with a 
written or visual advertisement, the use of either of the methods 
specified in paragraphs (a)(1) and (2) of this section will satisfy the 
requirements of this paragraph (a).
    (b) No advertisement shall contain any words, symbols, models, or 
other forms of communication which express, imply, or suggest a 
discriminatory preference or policy of exclusion in violation of the 
provisions of the Fair Housing Act or the Equal Credit Opportunity Act.


Sec.  338.4  Fair housing poster.

    (a) Each FDIC-supervised institution engaged in extending loans for 
the purpose of purchasing, constructing, improving, repairing, or 
maintaining a dwelling or any loan secured by a dwelling shall 
conspicuously display either the Equal Housing Lender poster set forth 
in paragraph (b) of this section or the Equal Housing Opportunity 
poster prescribed by 24 CFR 110.25(a) of the United States Department 
of Housing and Urban Development's regulations, in a central location 
within the FDIC-supervised institution where deposits are received or 
where such loans are made, in a manner clearly visible to the general 
public entering the area, where the poster is displayed.
    (b) The Equal Housing Lender Poster shall be at least 11 by 14 
inches in size and have the following text:

[[Page 8089]]

    We Do Business in Accordance with Federal Fair Lending Laws.
    UNDER THE FEDERAL FAIR HOUSING ACT, IT IS ILLEGAL, ON THE BASIS OF 
RACE, COLOR, NATIONAL ORIGIN, RELIGION, SEX, HANDICAP, OR FAMILIAL 
STATUS (HAVING CHILDREN UNDER THE AGE OF 18) TO:
     Deny a loan for the purpose of purchasing, constructing, 
improving, repairing or maintaining a dwelling or to deny any loan 
secured by a dwelling; or
     Discriminate in fixing the amount, interest rate, 
duration, application procedures, or other terms or conditions of such 
a loan or in appraising property.
    IF YOU BELIEVE YOU HAVE BEEN DISCRIMINATED AGAINST, YOU SHOULD SEND 
A COMPLAINT TO:
    Assistant Secretary for Fair Housing and Equal Opportunity, 
Department of Housing and Urban Development, Washington, DC 20410.
    For processing under the Federal Fair Housing Act
    AND TO:
    Federal Deposit Insurance Corporation, Consumer Response Center, 
[Insert address for the Consumer Response Center stated on the FDIC's 
website at www.fdic.gov]
    For processing under the FDIC Regulations.
    UNDER THE EQUAL CREDIT OPPORTUNITY ACT, IT IS ILLEGAL TO 
DISCRIMINATE IN ANY CREDIT TRANSACTION:
     On the basis of race, color, national origin, religion, 
sex, marital status, or age;
     Because income is from public assistance; or
     Because a right has been exercised under the Consumer 
Credit Protection Act.
    IF YOU BELIEVE YOU HAVE BEEN DISCRIMINATED AGAINST, YOU SHOULD SEND 
A COMPLAINT TO:
    Federal Deposit Insurance Corporation, Consumer Response Center, 
[Insert address for the Consumer Response Center stated on the FDIC's 
website at www.fdic.gov]
    (c) The Equal Housing Lender Poster specified in this section was 
adopted under 24 CFR 110.25(b) of the United States Department of 
Housing and Urban Development's rules and regulations as an authorized 
substitution for the poster required in Sec.  110.25(a) of those rules 
and regulations.

Subpart B--Recordkeeping


Sec.  338.5  Purpose.

    The purpose of this subpart is two-fold. First, this subpart 
notifies all FDIC-supervised institutions of their duty to collect and 
retain certain information about a home loan applicant's personal 
characteristics in accordance with 12 CFR part 1002 (Regulation B of 
the Bureau of Consumer Financial Protection) in order to monitor an 
institution's compliance with the Equal Credit Opportunity Act of 1974 
(15 U.S.C. 1691 et seq.). Second, this subpart notifies certain FDIC-
supervised institutions of their duty to maintain, update, and report a 
register of home loan applications in accordance with 12 CFR part 1003 
(Regulation C of the Bureau of Consumer Financial Protection), which 
implements the Home Mortgage Disclosure Act (12 U.S.C. 2801 et seq.).


Sec.  338.6  Definitions applicable to this subpart.

    For purposes of this subpart--
    (a) Bank means an insured State nonmember bank as defined in 
section 3 of the Federal Deposit Insurance Act, 12 U.S.C. 1813.
    (b) Controlled entity means a corporation, partnership, 
association, or other business entity with respect to which a bank 
possesses, directly or indirectly, the power to direct or cause the 
direction of management and policies, whether through the ownership of 
voting securities, by contract, or otherwise.
    (c) FDIC-supervised institution means either a bank or a State 
savings association.
    (d) State savings association has the same meaning as in section 
3(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).


Sec.  338.7  Recordkeeping requirements.

    All FDIC-supervised institutions that receive an application for 
credit primarily for the purchase or refinancing of a dwelling occupied 
or to be occupied by the applicant as a principal residence where the 
extension of credit will be secured by the dwelling shall request and 
retain the monitoring information required by Regulation B of the 
Bureau of Consumer Financial Protection (12 CFR part 1002).


Sec.  338.8  Compilation of loan data in register format.

    FDIC-supervised institutions and other lenders required to file a 
Home Mortgage Disclosure Act loan/application register (LAR) with the 
Federal Deposit Insurance Corporation shall collect, record and report 
such LAR in accordance with Regulation C of the Bureau of Consumer 
Financial Protection (12 CFR part 1003).


Sec.  338.9  Mortgage lending of a controlled entity.

    Any bank which refers any applicants to a controlled entity and 
which purchases any covered loan as defined in Regulation C of the 
Bureau of Consumer Financial Protection (12 CFR part 1003) originated 
by the controlled entity, as a condition to transacting any business 
with the controlled entity, shall require the controlled entity to 
enter into a written agreement with the bank. The written agreement 
shall provide that the entity shall:
    (a) Comply with the requirements of Sec. Sec.  338.3, 338.4, and 
338.7, and, if otherwise subject to Regulation C of the Bureau of 
Consumer Financial Protection (12 CFR part 1003), Sec.  338.8;
    (b) Open its books and records to examination by the Federal 
Deposit Insurance Corporation; and
    (c) Comply with all instructions and orders issued by the Federal 
Deposit Insurance Corporation with respect to its home loan practices.

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

0
2. The authority citation for part 390 is revised to read as follows:

    Authority: 12 U.S.C. 1819.
    Subpart Q also issued under 12 U.S.C. 1462; 1462a; 1463; 1464.
    Subpart W also issued under 12 U.S.C. 1462a; 1463; 1464; 15 
U.S.C. 78c; 78l; 78m; 78n; 78p; 78w.

Subpart G--[Removed and Reserved]

0
3. Remove and reserve subpart G, consisting of Sec. Sec.  390.140 
through 390.150.

Federal Deposit Insurance Corporation.

    By order of the Board of Directors.

    Dated at Washington, DC, on December 15, 2020.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2020-28452 Filed 2-2-21; 8:45 am]
BILLING CODE 6714-01-P