[Federal Register Volume 88, Number 195 (Wednesday, October 11, 2023)]
[Proposed Rules]
[Pages 70391-70409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22421]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 308 and 364

RIN 3064-AF94


Guidelines Establishing Standards for Corporate Governance and 
Risk Management for Covered Institutions With Total Consolidated Assets 
of $10 Billion or More

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Notice of proposed rulemaking and issuance of guidelines.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is seeking 
comment on proposed corporate governance and risk management guidelines 
(Guidelines) that would apply to all insured state nonmember banks, 
state-licensed insured branches of foreign banks, and insured state 
savings associations that are subject to Section 39 of the Federal 
Deposit Insurance Act (FDI Act), with total consolidated assets of $10 
billion or more on or after the effective date of the final Guidelines. 
These proposed Guidelines would be issued as Appendix C to FDIC's 
standards for safety and soundness regulations in part 364, pursuant to 
Section 39 of the FDI Act, and would be enforceable under Section 39. 
The FDIC also proposes to make corresponding amendments to parts 308 
and 364 of its regulations to implement the proposed Guidelines.

DATES: Comments on the proposed Guidelines must be received by December 
11, 2023.

ADDRESSES: The FDIC encourages interested parties to submit written 
comments. Please include your name, affiliation, address, email 
address, and telephone number(s) in your comment. You may submit 
comments to the FDIC, identified by RIN 3064-AF94, by any of the 
following methods:
    Agency Website: https://www.fdic.gov/resources/regulations/federal-register-publications. Follow instructions for submitting comments on 
the FDIC's website.
    Mail: James P. Sheesley, Assistant Executive Secretary, Attention: 
Comments/Legal OES (RIN 3064-AF94), Federal Deposit Insurance 
Corporation, 550 17th Street NW, Washington, DC 20429.
    Hand Delivered/Courier: Comments may be hand-delivered to the guard 
station at the rear of the 550 17th Street NW building (located on F 
Street NW) on business days between 7 a.m. and 5 p.m.
    Email: [email protected]. Include RIN 3064-AF94 in the subject line 
of the message.
    Public Inspection: Comments received, including any personal 
information provided, may be posted without change to https://www.fdic.gov/resources/regulations/federal-registerpublications/. 
Commenters should submit only information that the commenter wishes to 
make available publicly. The FDIC may review, redact, or refrain from 
posting all or any portion of any comment that it may deem to be 
inappropriate for publication, such as irrelevant or obscene material. 
The FDIC may post only a single representative example of identical or 
substantially identical comments, and in such cases will generally 
identify the number of identical or substantially identical comments 
represented by the posted example. All comments that have been 
redacted, as well as those that have not been posted, that contain 
comments on the merits of this notice will be retained in the public 
comment file and will be considered as required under all applicable 
laws. All comments may be accessible under the Freedom of Information 
Act.

FOR FURTHER INFORMATION CONTACT: Division of Risk Management 
Supervision: Judy E. Gross, Senior Policy Analyst, 202-898-7047, 
[email protected]; Legal Division: Jennifer M. Jones, Counsel, 202-898-
6768; Catherine Topping, Counsel, 202-898-3975; Nicholas A. Simons, 
Senior Attorney, 202-898-6785; Kimberly Yeh, Senior Attorney, 202-898-
6514.

SUPPLEMENTARY INFORMATION:

I. Policy Objectives

    Strong corporate governance is the foundation for an insured 
depository institution's safe and sound operations. An effective 
governance framework is necessary for an insured depository institution 
to remain profitable, competitive, and resilient through changing 
economic and market conditions. The board of directors serves a 
critical role in maintaining an insured depository institution's safety 
and soundness and continued financial and operational resilience.
    The FDIC observed during the 2008 financial crisis and more recent 
bank \1\ failures in 2023 that financial institutions with poor 
corporate governance and risk management practices were more likely to 
fail.\2\ Reports reviewing the recent 2023 bank failures noted that 
poor corporate governance and risk management practices were 
contributing factors.\3\ Failures of insured depository institutions 
(IDIs) impose costs on the Deposit Insurance Fund (DIF) and negatively 
affect a wide variety of stakeholders including the institution's 
depositors and shareholders, employees, customers (including consumers 
and businesses that rely on the institution's services and the 
availability of credit), regulators, and the public as a whole. 
Insufficient attention and

[[Page 70392]]

responsiveness to internal controls and governance processes can result 
in noncompliance with laws and regulations going undetected or 
unaddressed.
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    \1\ The term ``bank'' is used to mean the same thing as 
``insured depository institution'' as defined in Section 3 of the 
FDI Act.
    \2\ Lessons Learned and a Framework for Monitoring Emerging 
Risks and Regulatory Response, GAO Report to Congress, GAO-15-365, 
June 2015; FDIC OIG Reports--Bank Failures, https://www.fdicoig.gov/reports-publications/bank-failures; Remarks by Martin J. Gruenberg, 
Chairman, FDIC to the American Association of Bank Directors, May 
12, 2015, https://archive.fdic.gov/view/fdic/1717; Review of the 
Federal Reserve's Supervision and Regulation of Silicon Valley Bank, 
April 2023, https://www.federalreserve.gov/publications/files/svb-review-20230428.pdf; FDIC's Supervision of Signature Bank, April 
2023, https://www.fdic.gov/news/press-releases/2023/pr23033a.pdf.
    \3\ The FDIC report on the failure of Signature Bank in 2023 
found that the root cause of the failure was poor management without 
adequate risk management practices and controls. The institution's 
management did not prioritize good corporate governance practices 
(FDIC's Supervision of Signature Bank, April 28, 2023, p. 2). The 
Federal Reserve Board's report on the failure of Silicon Valley Bank 
also identified governance and risk management failures that led to 
the failure. (Review of the Federal Reserve's Supervision and 
Regulation of Silicon Valley Bank, April 2023, p. 1).
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    The safety and soundness standards in part 364 currently include 
guidelines in Appendix A,\4\ which contain operational and managerial 
standards for insured state nonmember banks, state-licensed insured 
branches of foreign banks, and insured state savings associations 
(together, ``FDIC-supervised institutions'').\5\ In smaller, noncomplex 
institutions, risk management processes and internal controls that 
generally incorporate these standards may be adequate. However, as the 
recent bank failures show, corporate and risk governance structure and 
practices should keep pace with the bank's changes in size, business 
model, risk profile, and complexity. Larger or more complex 
institutions should have more sophisticated and formal board and 
management structures and practices to ensure appropriate corporate 
governance.
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    \4\ See 12 CFR part 364, Appendix A; https://www.fdic.gov/regulations/laws/rules/2000-8630.html#fdic2000appendixatopart364.
    \5\ The FDIC is the federal banking regulator for such 
institutions set forth in Section 3(q)(1) of the FDI Act, 12 U.S.C. 
1813(q)(1), and has the authority to promulgate safety and soundness 
regulations for such institutions pursuant to Section 39 of the FDI 
Act, 12 U.S.C. 1831p-1.
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    In order to strengthen the corporate governance and risk management 
practices of large institutions, the FDIC is proposing to issue 
Guidelines as a new Appendix C to part 364 to address corporate 
governance and risk management practices and board oversight. The 
proposed Guidelines would apply to all FDIC-supervised institutions 
with total consolidated assets of $10 billion or more on or after the 
effective date of the final Guidelines (together ``covered 
institutions'' and each, a ``covered institution''). The proposed 
Guidelines would apply in addition to any other requirements 
established by law or regulation.\6\ The FDIC's supervisory experience 
has shown that institutions with assets greater than $10 billion are 
larger, more complex and present a higher risk profile. The proposed 
Guidelines are intended to raise the FDIC's standards for corporate 
governance, risk management, and control to help ensure these larger 
institutions effectively anticipate, evaluate, and mitigate the risks 
they face.
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    \6\ All FDIC-supervised institutions, including covered 
institutions, may continue to utilize existing guidance in 
establishing appropriate corporate guidance processes. However, 
should an inconsistency exist between existing guidance and the 
proposed Guidelines, the proposed Guidelines will govern the 
activities of a covered institution since any final guidelines will 
be codified in Appendix C to part 364.
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    In developing the proposed Guidelines, the FDIC considered other 
statutory and regulatory authorities that impose requirements and 
expectations concerning corporate governance activities and risk 
management practices. For example, the Office of the Comptroller of the 
Currency (OCC) has developed heightened expectations to strengthen the 
corporate governance and risk management practices of large national 
banks with total consolidated assets of $50 billion or more. Under 
guidelines the OCC issued pursuant to Section 39 of the FDI Act, it 
expects larger national banks to establish and implement a risk 
governance framework for managing and controlling the bank's risk 
taking.\7\ The Board of Governors of the Federal Reserve System 
(Federal Reserve Board) has incorporated corporate governance and risk 
management requirements in Regulation YY \8\ and various Supervision 
and Regulation (SR) Letters for bank holding companies with total 
consolidated assets of $50 billion or more. The Federal Reserve Board 
has also noted that the risk management processes of a regional IDI, 
which it generally considers to be a midsize IDI with total 
consolidated assets between $10 and $100 billion, should typically 
contain detailed guidelines that set specific prudent limits on the 
principal types of risks relevant to a regional IDI's consolidated 
activities.\9\
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    \7\ See OCC Guidelines Establishing Heightened Standards for 
Certain Large Insured National Banks, Insured Federal Savings 
Associations, and Insured Federal Branches; Integration of 
Regulations, 79 FR 54518 (Sept. 11, 2014), https://www.federalregister.gov/documents/2014/09/11/2014-21224/occ-guidelines-establishing-heightened-standards-for-certain-large-insured-national-banks-insured; OCC, Comptroller's Handbook--
Corporate and Risk Governance, https://www.occ.gov/publications-and-resources/publications/comptrollers-handbook/files/corporate-risk-governance/index-corporate-and-risk-governance.html.
    \8\ 12 CFR 252.22, subpart C--Risk Committee Requirements for 
Bank Holding Companies with Total Consolidated Assets of $50 Billion 
or More and Less Than $100 Billion. The Federal Reserve Board 
initially set the application of risk committee requirements under 
Regulation YY, among other requirements, for banks with total 
consolidated assets of $10 billion or more pursuant to Section 165 
of the Dodd-Frank Act of 2010. 79 FR 17239, 17248 (Mar. 27, 2014). 
This threshold was raised from $10 billion to $50 billion pursuant 
to changes made under the Economic Growth, Regulatory Relief, and 
Consumer Protection Act of 2018. 84 FR 59032, 59055 (Nov. 1, 2019).
    \9\ See SR 16-11: Supervisory Guidance for Assessing Risk 
Management at Supervised Institutions with Total Consolidated Assets 
Less than $100 Billion (June 8, 2016; revised and reposted February 
17, 2021, p. 3). SR letter 95-51, Rating the Adequacy of Risk 
Management Processes and Internal Controls at State Member Banks and 
Bank Holding Companies (Nov. 14, 1995; revised Feb. 26, 2021) 
remains applicable to state member banks and bank holding companies 
with $100 billion or more in total assets. The Federal Reserve 
Board's Commercial Bank Examination Manual, Community Bank 
Supervision Process (Nov. 2020) applies the term ``community bank'' 
to generally describe a bank with $10 billion or less in total 
consolidated assets.
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    The proposed Guidelines are drawn from the principles set forth in 
the authorities noted above and would therefore align the FDIC's 
supervisory framework more closely with the other Federal banking 
agencies. Although the proposed Guidelines would apply more broadly to 
capture FDIC-supervised institutions with total assets of $10 billion 
or more, the FDIC believes that the proposed scope of application 
threshold is appropriate, as effective risk management practices should 
be tailored to the size of the institution and the nature, scope, and 
risk of its activities. These institutions are typically more complex 
and present a higher risk profile than community banking organizations 
with less than $10 billion in total assets.

II. Background

Prior Supervisory Guidance and Guidelines

    Over many years, the FDIC has issued guidance for IDIs on corporate 
governance and risk management, and expectations relating to boards of 
directors, with all guidance and expectations scaled to the size, 
complexity, and risk profile of the IDI. For example, in 1988, the FDIC 
issued the Pocket Guide for Directors \10\ to provide guidance to 
community bank directors about long-standing, broad principles on 
corporate governance and fiduciary responsibilities. In 1992, the FDIC 
issued a ``Statement Concerning the Responsibilities of Bank Directors 
and Officers.'' \11\ In 2005, the FDIC issued a document, ``Corporate 
Codes of Conduct: Guidance on Implementing an Effective Ethics 
Program.'' \12\ Further, in 2018 the FDIC published an issue of 
Supervisory Insights \13\ as a resource specifically for community bank 
directors with an interest in bank

[[Page 70393]]

governance and bank directors' responsibilities.
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    \10\ https://www.fdic.gov/regulations/resources/director/pocket/
.
    \11\ Financial Institution Letter (FIL--87--92) dated December 
3, 1992, https://www.fdic.gov/regulations/laws/rules/5000-3300.html.
    \12\ https://www.fdic.gov/news/financial-institution-letters/2005/fil10505.html.
    \13\ This is an informational resource but is not regulatory 
guidance: Special Governance Issue; April 2016, revised October 
2018, https://www.fdic.gov/regulations/examinations/supervisory/insights/sise16/si-se2016.pdf.
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    The FDIC's safety and soundness standards in part 364 currently 
include guidelines in Appendix A that contain operational and 
managerial standards.\14\ Appendix A describes the fundamental 
governance and risk management standards the FDIC expects FDIC-
supervised institutions to implement in a manner appropriate to the 
scope and complexity of their operations. In addition to Appendix A, 
the FDIC includes corporate governance and risk management expectations 
relevant to specific areas in topical rules, such as for appraisals 
\15\ and stress testing,\16\ and in guidance, such as the Interagency 
Guidance on Third-Party Relationships: Risk Management.\17\
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    \14\ 12 CFR part 364, Appendix A; https://www.fdic.gov/regulations/laws/rules/2000-8630.html#fdic2000appendixatopart364.
    \15\ 12 CFR part 323.
    \16\ 12 CFR part 325.
    \17\ 88 FR 37920 (Jun. 9, 2023).
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Examinations for Safety and Soundness

    Corporate governance and risk management practices are core 
considerations in evaluating management at IDIs as part of FDIC's 
examinations for safety and soundness. Section 4.1 of the FDIC's Risk 
Management Manual of Examination Policies \18\ (Manual) reiterates the 
importance of good management:
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    \18\ https://www.fdic.gov/regulations/safety/manual/.

    In the complex, competitive, and rapidly changing environment of 
financial institutions, it is extremely important for all members of 
bank management to be aware of their responsibilities and to 
discharge those responsibilities in a manner which will ensure 
stability and soundness of the institution, so that it may continue 
to provide to the community the financial services for which it was 
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created.

    Section 4.2 of the Manual discusses the importance of risk 
assessment and management:

    Risk assessments are conducted in order to identify, measure, 
and prioritize risks so that attention is placed first on areas of 
greatest importance. Risk assessments should analyze threats to all 
significant business lines, the sufficiency of mitigating controls, 
and any residual risk exposures.

    Although the FDIC has not previously issued supervisory guidelines 
or regulations specifically on corporate governance and risk management 
for covered institutions, the FDIC expects these larger IDIs to have 
more detailed and formal guidance frameworks, given their size and 
complexity. The FDIC has implemented a continuous examination process 
(CEP) for the largest IDIs that it supervises.\19\ IDIs that are 
supervised under a CEP are not directly tied to an asset size; however, 
most FDIC-supervised IDIs with assets of $10 billion or more are 
supervised through a CEP since they are larger, more complex, or 
present a higher risk profile. The CEP includes onsite targeted reviews 
of areas the examiner determines are necessary to complete a full-scope 
examination; ongoing monitoring and assessment of institution risks, 
policies, procedures, and financial condition; and frequent 
communication with bank management. A dedicated or designated examiner-
in-charge (EIC) oversees the continuous examination process and may be 
supported by additional dedicated examination staff. IDIs with assets 
of $10 billion or more are also subject to increased off-site review 
activities and more granular risk-based deposit insurance pricing due 
to their increased size and complexity.
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    \19\ See Section 1.1 of the Manual.
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    The requirements in these proposed Guidelines generally reflect 
existing principles and what examiners consider necessary for the safe 
and sound operation of a covered institution. In addition, these 
proposed Guidelines are intended to be generally consistent with the 
goals communicated through the OCC's and Federal Reserve Board's 
published issuances in an effort to harmonize corporate governance and 
risk management requirements for covered institutions that present a 
higher risk profile with those applicable to entities supervised by the 
other Federal banking agencies.
    Most of the risk management practices to be established and 
maintained by a covered institution to meet these safety and soundness 
standards, including having appropriate loan review and credit 
underwriting and administration practices, are already components of 
the institution's risk governance framework. As discussed below in 
Section III, the FDIC is adding a requirement (consistent with the OCC 
and Federal Reserve Board standards) for covered institutions to 
establish a three-lines-of-defense model: business units (front line 
units), independent risk management unit, and internal audit unit.

Rulemaking Authority

    The FDIC is issuing the proposed Guidelines pursuant to Section 39 
\20\ of the FDI Act. Section 39 generally prescribes safety and 
soundness standards for insured depository institutions. Under 
subsection (a) of the statute, the FDIC, as the appropriate Federal 
banking agency for insured state nonmember banks, state-licensed 
insured branches of foreign banks, and insured state savings 
associations, may prescribe such standards, including other operational 
and managerial standards, by issuing a regulation or guideline. 
Pursuant to Section 39, if a covered institution fails to meet a 
standard prescribed by regulation, the FDIC must require the 
institution to submit a plan specifying the steps that it will take to 
comply with the standard. If a covered institution fails to meet a 
standard prescribed by guideline, the FDIC has the discretion to decide 
whether to require the submission of a plan.\21\ The issuance of these 
standards as Guidelines rather than as a regulation provides the FDIC 
with supervisory flexibility to pursue the course of action that is 
most appropriate given the specific circumstances of a covered 
institution's failure to meet one or more of the standards, and the 
covered institution's self-corrective and remedial responses.\22\
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    \20\ 12 U.S.C. 1831p-1.
    \21\ Pursuant to Section 39, if the FDIC determines that an IDI 
fails to meet any standard prescribed in the guidelines issued under 
subsection (a) or (b) of Section 39, the FDIC may require the IDI to 
submit a plan that specifies the steps that the institution will 
take to correct the deficiency (such plan is referred to as a 
``Section 39 Plan''). Further, Section 39 provides that if an IDI 
fails to submit an acceptable Section 39 Plan or fails in any 
material respect to implement an acceptable Section 39 Plan, the 
FDIC, by order shall require the institution to correct the 
deficiency and may take additional enumerated actions, including 
growth restrictions, increased capital requirements, and 
restrictions on interest rates paid on deposits.
    \22\ The FDIC's procedural rules implementing Section 39 are 
contained in 12 CFR part 308, subpart R. As part of this rulemaking, 
an amendment to 12 CFR 308.302(a) is being proposed to add a 
reference the proposed Guidelines. Similarly, a new paragraph (c) is 
being proposed to 12 CFR 364.101 to add a reference to the proposed 
Guidelines.
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III. Description of the Proposed Guidelines

    The proposed Guidelines contain standards for corporate governance 
and risk management for covered institutions. The proposed Guidelines 
include a description of the general obligations of the board to ensure 
good corporate governance.\23\ The FDIC expects all FDIC-supervised 
institutions to have good corporate governance, including the key 
component of an active and involved board protecting the interests of 
the institution rather than the interests of the parent or affiliate of

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the institution. The proposed Guidelines for covered institutions 
emphasize the importance of developing a strategic plan and risk 
management policies and procedures and selecting and supervising senior 
management so that a covered institution will operate in a safe and 
sound manner. The proposed Guidelines also emphasize the importance for 
the board and management to adopt a code of ethics, to demonstrate high 
ethical standards in the covered institutions' operations, and to act 
to ensure the covered institution and its employees adhere to 
applicable laws and regulations, including consumer protection laws and 
regulations, and the Community Reinvestment Act.
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    \23\ Under the proposed Guidelines, the FDIC reserves authority 
to modify or extend the time for compliance for any IDI with $10 
billion or more in assets and to modify the proposed Guidelines, as 
necessary, to address their applicability to insured branches of 
foreign banks because those institutions do not have a board.
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A. Section I--Introduction

    This section describes the scope of FDIC-supervised institutions 
that would be subject to the proposed Guidelines. The proposed 
Guidelines would apply to all insured state nonmember banks, state-
licensed insured branches of foreign banks, and insured state savings 
associations that are subject to the provisions of Section 39 of the 
FDI Act, with total consolidated assets of $10 billion or more on or 
after the effective date of the final Guidelines. The proposal defines 
``total consolidated assets'' for purposes of meeting the $10 billion 
threshold as total assets reported on an institution's Consolidated 
Reports of Condition and Income (Call Report) for the two most recent 
consecutive quarters. The institutions which meet these criteria are 
``covered institutions'' under the proposed Guidelines. As analyzed 
more fully in the discussion of the expected effects of the proposed 
Guidelines below, the FDIC believes this proposed $10 billion threshold 
will reduce the likelihood of failure and the magnitude of losses in 
the event of a failure. As of March 31, 2023, there are 57 covered 
institutions.\24\
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    \24\ FDIC Call Report Data, March 31, 2023. Count excludes First 
Republic Bank, which was closed by the California Department of 
Financial Protection and Innovation and the FDIC was appointed 
Receiver on May 1, 2023.
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    The FDIC proposes to apply the Guidelines to institutions whose 
Call Report filings reflect two consecutive quarters of total assets 
above $10 billion to provide institutions an ``on-ramp'' for 
compliance. This provides a certain amount of time for institutions to 
develop the policies, procedures, and programs they need to comply with 
the proposed Guidelines before they become a ``covered institution'' on 
the as-of date of the Call Report for the second consecutive quarter in 
which their total consolidated assets exceed $10 billion. Additionally, 
it will allow institutions that may only briefly exceed the threshold 
to reduce their total consolidated assets over the following quarter 
without needing to comply with the Guidelines. The FDIC expects that 
institutions would be well aware in advance if they would exceed the 
$10 billion threshold and develop compliance programs in advance or 
plan to reduce their assets. Finally, the FDIC proposes to consider an 
institution to no longer be a ``covered institution'' if its Call 
Report filings show total consolidated assets below $10 billion for 
four consecutive quarters. The FDIC believes that these asset 
thresholds based on quarterly Call Report filings strike a balance 
between application of the Guidelines for larger, more complex 
institutions, while not capturing less-complex institutions whose total 
assets only exceed $10 billion briefly or whose size is reduced over 
time. This proposed asset threshold, however, is subject to the FDIC's 
existing authority as described below.
    The proposed Guidelines include preservation and reservation of the 
FDIC's existing authority to address unsafe or unsound practices of all 
FDIC-supervised institutions. The Guidelines preserve the FDIC's 
authority to bring any enforcement action available to it independently 
of, in conjunction with, or in addition to any action under Section 39 
of the FDI Act. Further, the FDIC reserves the authority to apply the 
proposed Guidelines, in whole or in part, to institutions with less 
than $10 billion in total consolidated assets if the FDIC determines 
that the institution's operations are highly complex or present 
heightened risk. The FDIC also reserves the authority, for each covered 
institution, to extend the time for compliance with these Guidelines or 
modify these Guidelines, as necessary, and can determine that 
compliance should no longer be required for covered institutions, if 
the institution's operations are no longer highly complex or no longer 
present a heightened risk. The FDIC's reservation of authority is not 
restricted by the asset threshold, as described above.
    The Introduction also includes Definitions for terms used 
throughout the proposed Guidelines and a description of the role, 
responsibility, and structure of certain positions and functions within 
a covered institution that have a role in the risk management and 
corporate governance of the covered institution. This section defines 
both the Chief Audit Officer (CAO) and the Chief Risk Officer (CRO) 
within a covered institution, describing their responsibilities and 
reporting structure. The CAO and CRO lead the internal audit unit and 
the independent risk management unit, respectively. The internal audit 
unit and the independent risk management unit maintain independence 
from front line units through the structure outlined in their 
respective definitions and as further detailed throughout the proposed 
Guidelines. Front line units mean those units that, in general, 
generate revenue or reduce costs for the covered institution. This 
proposed section also defines a covered institution's parent company. 
Finally, this proposed section defines the risk appetite and risk 
profile for the covered institution.

B. Section II--Corporate Governance

    The board of directors of a covered institution has the ultimate 
responsibility for the safe and sound operation of the institution, 
overseeing management, and fulfilling its fiduciary duties. Effective 
corporate governance depends upon a board of directors that is active 
and engaged. As noted elsewhere in the discussion of these proposed 
Guidelines, the FDIC has observed that institutions with weak corporate 
governance are more likely to fail and are more likely to experience 
significant losses upon failure. To ensure the safety and soundness of 
covered institutions and the stability of the financial system, the 
FDIC is proposing these Guidelines for the boards of covered 
institutions regarding their obligations, composition, duties, and 
committee structure to set expectations for corporate governance.
Subsection A--Board of Directors--General Obligations
    Proposed Section II, Subsection A describes the general obligations 
of a covered institution's board of directors. The board is ultimately 
responsible for the affairs of the covered institution and each 
individual member must abide by certain legal duties. These legal 
duties flow from the myriad federal and state laws applicable to the 
covered institution, securities law and bank regulation, common law, 
and other sources that may impose criminal or civil liability on 
directors that fail to discharge their duties. Boards should 
familiarize themselves with and refer to all applicable federal and 
state law requirements.
Subsection B--Board Composition
    These proposed Guidelines also establish an expectation for the 
composition of the board of directors. There should be at least a 
majority of independent directors on the board. An appropriately sized, 
diverse board of

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directors promotes effective, independent oversight of a covered 
institution and is important to the overall risk management of the 
institution. Diversity of demographic representation, opinion, 
experience, and ownership level is key to a board composition that can 
oversee management, address a variety of risks, and challenge others 
when necessary. A board that includes multiple members with similar 
experiences, opinions, or interests in the covered institution may 
result in a lack of creativity or individual responsibility for 
decisions, or gaps in knowledge, experience, or oversight, increasing 
risk to the institution.
    The covered institution's organizational documents or state 
chartering authority may have requirements for board members, including 
a requirement for a certain number of directors. The proposed 
Guidelines expand upon, but do not replace, these requirements by 
providing covered institutions various considerations for ensuring an 
effective board composition. In determining the appropriate number of 
directors and the board's composition in accordance with state law, the 
board should consider how the selection of, and diversity among board 
members collectively and individually, may best promote effective, 
independent oversight of the covered institution's management and 
satisfy all legal requirements for outside and independent 
directors.\25\
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    \25\ For example, the Depository Institutions Management 
Interlocks Act (12 U.S.C. 3201 et seq.) that generally prohibits a 
management official from serving two nonaffiliated depository 
organizations in situations where the management interlock likely 
would have an anticompetitive effect.
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Subsection C--Duties of the Board
    The duties of the board of directors of a covered institution flow 
from their responsibilities to fulfill their fiduciary duties, oversee 
management, and ensure safe and sound operation of the institution. As 
these responsibilities ultimately lie with the board, the FDIC is 
proposing the following Guidelines for the minimum duties of the boards 
of covered institutions. Each of the following duties is an integral 
component of the board's overall responsibility for risk management of 
the covered institution, holding executives and management accountable, 
and ensuring ethical operations.
    The proposed Guidelines state that the board of a covered 
institution should set an appropriate tone for the institution. The 
``tone at the top'' is integral to promoting a culture and environment 
of responsible and ethical behavior that discourages imprudent risk-
taking in pursuit of profit. The proposed Guidelines include this 
responsibility for the board, in alignment with similar guidelines 
imposed by the Federal Reserve Board and the OCC. The tone set by the 
board is closely related to other concepts throughout the proposed 
Guidelines, including a Code of Ethics that encourages responsible 
behavior and a Compensation and Performance Management Program that 
does not incentivize imprudent risk-taking. By adhering to the law, 
these proposed Guidelines, and the board's own policies, the board sets 
the tone for the covered institution as a whole and reduces the 
likelihood or cost of failure.
    The proposed Guidelines state that the board is responsible for the 
strategic plan and direction of the covered institution. Development 
and approval of a strategic plan is a common responsibility of a board 
of directors and its inclusion in these proposed Guidelines elaborates 
on the FDIC's expectations for such a plan to ensure the board of a 
covered institution is engaged with its business objectives while 
appropriately managing risk. A strategic plan developed by the Chief 
Executive Officer (CEO) with input from front-line units, independent 
risk management, and internal audit, and ultimately approved by the 
board, sets the direction of a covered institution to achieve business 
goals and manage the covered institution's risks. The strategic plan 
should cover at least a three-year period and be reviewed and approved 
annually to account for changing business conditions and risks to the 
covered institution.
    The board of directors of a covered institution is also responsible 
for establishing the policies by which the institution operates, and 
these proposed Guidelines provide a high-level overview of such 
responsibility. Similar to a strategic plan, the adoption of policies 
ensures board engagement, prudent and proper risk management, and safe 
and sound operation. These proposed Guidelines do not prescribe the 
exact policies that the board of a covered institution may adopt; each 
institution varies in its business activities and unique risks and is 
responsible for making that determination itself. At a minimum, the 
covered institution should adopt policies and procedures to ensure safe 
and sound operation and fulfill the responsibilities outlined in 
Appendix A of part 364. For example, such policies and procedures may 
include a loan and/or credit policy, certain internal controls, and 
guides for assets and liabilities. Other statutes, regulations, or 
supervisory policies may require adoption of policies and procedures as 
well, such as compliance with the Bank Secrecy Act, consumer protection 
laws, the Community Reinvestment Act, and other legal requirements that 
may exist. The board should periodically review and revise its policies 
to ensure that they remain applicable and account for new or changing 
risks of the institution. Finally, compliance with the board's policies 
should be periodically reviewed by the internal audit function of the 
institution.
    A Code of Ethics, written and adopted by the board, is integral to 
establishing an appropriate tone in a covered institution and setting 
expectations for behavior that manages risk. The proposed Guidelines 
state that the Code of Ethics should apply to all directors, 
management, and employees. The proposed Guidelines also state, broadly, 
the areas that should be addressed by such a Code, including procedures 
and points of contact for reporting illegal or unethical behavior. A 
Code of Ethics should include topics addressing legal requirements, 
such as insider information, disclosure, and self-dealing.
    The board of a covered institution should also provide active 
oversight of management. As the body that appoints and compensates the 
CEO (and possibly other management as well, either as a whole or by 
committee), it is the responsibility of the board of the covered 
institution to oversee the management that it has hired. Similarly, the 
board is responsible for overseeing compliance with the policies that 
it establishes, such as the strategic plan and the Code of Ethics, and 
is ultimately responsible for compliance with applicable laws and 
regulations. Under these proposed Guidelines, the board should hold 
management accountable and challenge and question management as 
necessary to ensure safe and sound operation of the covered 
institution.
    The obligation of an individual board member to exercise 
independent judgment is included in the proposed Guidelines. Exercising 
sound, independent judgment is integral to a director's responsibility 
and duties to a covered institution. In addition, individual directors 
and the board as a whole should exercise independent judgment by 
ensuring that they are not excessively influenced by a single dominant 
policymaker, who may be a director, management, shareholder, or other 
individual. Such dominant policymakers present risks to the board

[[Page 70396]]

and covered institutions by inhibiting board members' exercise of 
independent judgment, causing a power vacuum if they leave the 
institution, and presenting difficulty if mismanagement can be 
attributed to a single dominant individual.
    The proposed Guidelines provide that the board of a covered 
institution must also select and appoint qualified executive officers. 
This typically includes the CEO, but may also include other officers 
appointed by the board as a whole or by committee. Such selection and 
appointment is standard among boards of covered institutions; these 
proposed Guidelines provide a minimum expectation for selection 
criteria of personnel, grounds for dismissal, succession planning, and 
training.
    The board of a covered institution should also provide ongoing 
training to each of its directors. To that end, the proposed Guidelines 
include examples of training that a board may conduct to ensure that it 
has the knowledge, abilities, and skills to understand industry trends, 
statutory and regulatory developments, and an understanding of the 
issues that affect the covered institution. The formal training program 
should include, at a minimum, the products, services, lines of 
business, and risks of the covered institution; laws, regulations, and 
supervisory requirements applicable to the covered institution; and 
other topics that the board may identify to ensure that the institution 
maintains safe and sound operation and the board can execute its duties 
appropriately.
    A self-assessment at the board level is necessary for the directors 
of a covered institution to examine their own compliance, hold 
themselves accountable, and make plans to improve any gaps or 
deficiencies in their performance. Identifying and addressing 
deficiencies at the board level ensures one more layer of protection 
against risk. To that end, these proposed Guidelines state that the 
board should conduct such a self-assessment on a regular basis.
    The board should also establish Compensation and Performance 
Management Programs. The proposed Guidelines include this as a 
component of the overall risk management of a covered institution; 
incentives and compensation programs may pose safety and soundness 
risks if they encourage noncompliance with laws, regulations, or 
internal policies to meet business objectives. To safeguard against 
those risks, these Guidelines propose that a Compensation and 
Performance Management Program be established by the board to ensure 
adherence to an effective risk management program, ensure issues 
identified by the risk management and internal audit functions are 
addressed, and attract and retain competent staff.
Subsection D--Committees of the Board
    The board of directors of a covered institution is expected to work 
through a committee structure that allows directors to stay informed, 
divide labor, and handle matters that require detailed review and in-
depth consideration. These proposed Guidelines set the minimum 
expectations for committees of the board that oversee critical elements 
of the covered institution's overall risk management. The committees 
proposed in these Guidelines are in addition to, not in lieu of, any 
committees that may be required by other laws, regulations, or 
supervisory requirements.
    An Audit Committee must be established as defined in these proposed 
Guidelines and as required by Section 36 of the FDI Act \26\ and part 
363 of the FDIC's regulations.\27\ The Audit Committee, composed 
entirely of outside and independent directors as required by statute 
and regulation, oversees financial reporting, independent audits, the 
Chief Audit Officer, and the internal audit function. Furthermore, this 
Committee should report to the full board regarding the progress of the 
covered institution in addressing issues identified by the internal 
audit function and recommending further action.
---------------------------------------------------------------------------

    \26\ 12 U.S.C. 1831m.
    \27\ 12 CFR part 363.
---------------------------------------------------------------------------

    A Compensation Committee established under these proposed 
Guidelines must comply with any exchange rules that may be applicable 
to publicly traded covered institutions and the FDIC's regulations, 
including Appendix A of part 364. The Compensation Committee assists in 
managing the risks of a covered institution by ensuring that 
compensation and performance management do not reward or encourage 
imprudent risk-taking or violations of legal requirements in pursuit of 
profit or business objectives. Furthermore, compensation that is 
excessive or that could lead to a material financial loss constitutes 
an unsafe and unsound practice that this Committee is also designed to 
guard against.
    These proposed Guidelines include the establishment of a Trust 
Committee if the covered institution has trust powers. This Committee 
oversees and manages the risks presented by the operation of a trust 
department by ensuring that the trust department is separate and apart 
from other departments of the covered institution, trust assets are 
separated from other assets of the covered institution, assets of each 
trust account are separated from the assets of other accounts, and 
ensuring overall compliance with applicable laws and regulations. These 
proposed Guidelines include these requirements as best practices for 
management of a trust department in a covered institution.
    These proposed Guidelines also include requirements for a Risk 
Committee. The Risk Committee is responsible for approving and 
periodically reviewing the risk management policies of a covered 
institution and overseeing the risk management framework. To ensure 
that the Risk Committee is independent and able to effectively complete 
its mission, and to minimize the risk of failure and the magnitude of 
losses of a covered institution, these proposed Guidelines include 
requirements consistent with that of other Federal banking agencies. By 
requiring that the Committee has an independent director as its chair 
and be an independent committee of the board that reports directly to 
the board, these proposed Guidelines help to ensure that the 
individuals responsible for oversight of the covered institution's 
overall risks are free to make recommendations to the board and 
challenge management as necessary. At least one individual on the 
Committee should be experienced in managing the risks of a firm 
commensurate with the size, business model, complexity and risk profile 
of the covered institution to ensure that the Committee has the 
necessary expertise to fulfill its obligations. Reviewing reports from 
the CRO and meeting with the Committee not less than quarterly ensures 
that the Risk Committee can stay abreast of the risks of the covered 
institution, including any internal or external changes that may affect 
the institution, and make recommendations accordingly. Finally, the 
Risk Committee overseeing the compensation and performance management 
of the CRO ensures that the CRO can maintain their independence and 
objectively assess the risks of the covered institution. The proposed 
Guidelines regarding the Risk Committee ensure proper oversight of the 
covered institution's independent risk management function and the 
risks of the institution itself. These requirements support the 
continued

[[Page 70397]]

safety and soundness of large and complex institutions.
    The board should also create other committees as required or 
appropriate for the board to perform its duties under these proposed 
Guidelines. While the Committees outlined in these proposed Guidelines 
represent the FDIC's minimum expectations for division of labor and 
expertise among the board of directors of a covered institution, it 
does not obviate the institution from creating board committees as 
necessary, commensurate with its risk profile and operations of the 
institution to ensure safety and soundness. For example, many 
institutions find it prudent to have a credit committee that 
establishes loan and credit policies of the covered institution and 
reviews and approves loans above a certain amount. Other institutions 
may be heavily involved in financial technology and determine that it 
is necessary to have committees addressing information technology, 
cybersecurity, or partnerships. A covered institution should consider 
its risk profile and complexity of operations to determine whether a 
board committee is necessary to ensure matters requiring detailed 
review and in-depth consideration are addressed appropriately.

C. Section III--Board and Management Responsibility Regarding Risk 
Management and Audit

    Under Proposed Section III, the FDIC would expect a covered 
institution to have and adhere to a risk management program for 
managing and controlling the covered institution's risk taking. Three 
distinct units should have responsibility and be held accountable by 
the CEO and the board for monitoring and reporting on the covered 
institution's compliance with the risk management program: front line 
units, the independent risk management unit, and the internal audit 
unit. The proposed Guidelines describe the responsibilities of each of 
these units in detail.
    The proposed Guidelines provide that for a covered institution that 
has a parent company, if the risk profiles of each entity are 
substantially similar, the covered institution may adopt and implement 
all or any part of its parent company's risk management program that: 
satisfies the minimum standards in these Guidelines; ensures that the 
safety and soundness of the covered institution is not jeopardized by 
decisions made by the parent company's board and management; and 
ensures that the covered institution's risk profile is easily 
distinguished and separate from that of its parent for risk management 
and supervisory reporting purposes. Consideration of these factors may 
require the covered institution to have separate and focused governance 
and risk management practices.
    Under these proposed Guidelines, a covered institution's risk 
management program should include a risk profile and a risk appetite 
statement. These documents form the foundation of an effective risk 
management program by providing an objective assessment of the 
institution's risks, and based on that risk profile, the board should 
establish written limits and levels of risks that the institution will 
accept. The independent risk management unit should develop the risk 
management program based on the risk profile of the institution and the 
risk appetite statement. At least annually and as the risks of the 
institution change, whether by internal or external factors, the risk 
management unit should review and update the risk management program. 
These proposed Guidelines provide the FDIC's expectations for the scope 
of the risk management program, including the risk categories, risk 
control infrastructure, and processes and systems for implementing and 
monitoring policies and procedures that govern, identify, and report 
risk. The risk management program should be effectively communicated 
throughout the institution so that all units understand their 
respective responsibilities.
    Under the three-lines-of-defense model in these proposed 
Guidelines, a covered institution should have three units, held 
accountable by the CEO and the board, for monitoring and reporting on 
compliance with the risk management program. The front line units, 
which are generally business units that generate revenue or save costs 
for the covered institution as defined in these Guidelines, are 
responsible for ensuring that their activities do not create excessive 
risks or exceed the risk appetite of the institution. The independent 
risk management unit, under direction of the CRO, should identify, 
assess, and oversee the covered institution's risk-taking activities on 
an ongoing basis. The independent risk management unit and CRO should 
be able to communicate with the CEO and the Risk Committee of the board 
of directors to identify and report risks and suspected instances of 
noncompliance. The internal audit unit, under direction of the CAO, 
should ensure that the covered institution complies with laws and 
regulations and adheres to the covered institution's risk management 
program. It should establish and adhere to an audit plan and report its 
findings, including any recommendations, to the Audit Committee of the 
board of directors. This three-lines-of-defense model, when taken as a 
whole with the duties and oversight of the board under proposed Section 
II of these Guidelines, ensures safety and soundness, reduces the 
likelihood of failure, and reduces the magnitude of any loss by 
preventing a single point of failure within an organization and 
providing for multiple checks within a covered institution's risk 
management.
    The proposed Guidelines also provide the FDIC's expectations 
regarding the board's establishment of, and the covered institution's 
adherence to, processes governing breaches to risk limits and 
violations of law or regulations. The front line units and independent 
risk management unit, consistent with their respective 
responsibilities, should identify breaches of the institution's risk 
appetite and other risk limits, distinguish breaches based on severity, 
report on the breach, its impact, and resolution, and establish 
consequences for breaches of risk limits. Similarly, the front line 
units and risk management unit should identify known or suspected 
violations of law or regulations. All violations of law or regulations 
and documentation regarding efforts to return to compliance should be 
documented in writing, distributed to relevant parties within the 
institution, and records should be retained for FDIC review. Known or 
suspected violations of law involving dishonesty, misrepresentation, or 
willful disregard for legal requirements must be promptly reported as 
required by law and on a timetable acceptable to the agency with 
jurisdiction.

IV. Expected Effects of Implementing the Proposed Guidelines

    As previously discussed, if approved, the proposed rule would 
establish proposed Guidelines that include standards for corporate 
governance and risk management for covered institutions. As of the 
quarter ending March 31, 2023, the FDIC supervises 3,012 IDIs, of which 
57 reported total consolidated assets of $10 billion or more.\28\ 
Therefore, the FDIC estimates that 57 FDIC-supervised IDIs will be 
directly affected by the proposed rule, if approved.
---------------------------------------------------------------------------

    \28\ FDIC Call Report Data, March 31, 2023. Count excludes First 
Republic Bank, which was closed by the California Department of 
Financial Protection and Innovation and the FDIC was appointed 
Receiver on May 1, 2023.
---------------------------------------------------------------------------

    The proposed Guidelines contain expectations for roles and 
responsibilities of the board, size and makeup of the board, 
organization of the

[[Page 70398]]

board, committee structures of the board, development and maintenance 
of a strategic plan, development and maintenance of risk management 
policies, hiring and oversight of senior management, development and 
maintenance of processes for responding to violations of laws, 
regulations, or breaches of internal risk limits or other internal 
policies and procedures.
    As previously discussed, all FDIC-supervised institutions have 
existing requirements to establish operational and management standards 
to ensure the safe and sound operation of the IDI appropriate to the 
size of the IDI and the nature, scope and risk of its activities.\29\ 
Additionally, certain FDIC-supervised institutions are subject to audit 
requirements, including the establishment of an audit committee as well 
as its makeup.\30\ Finally, as previously discussed the FDIC has issued 
several guidance items related to appropriate risk management and 
ethics.\31\
---------------------------------------------------------------------------

    \29\ 12 CFR 364.101, Appendix A.
    \30\ 12 CFR 363.2.
    \31\ See footnotes 10-15.
---------------------------------------------------------------------------

    The FDIC believes that the proposed rule will benefit covered 
institutions by reducing the likelihood and magnitude of losses and the 
likelihood of failure. The FDIC does not have access to information 
that would enable a quantitative estimate of the benefits of the 
proposed rule. Although there are existing regulations and guidance 
related to corporate governance and risk management, the FDIC has not 
previously issued supervisory guidelines or regulations specifically on 
corporate governance and risk management for covered institutions. The 
FDIC believes that adoption of the proposed Guidelines would benefit 
covered institutions by establishing clear expectations for covered 
institutions and strengthening corporate governance and risk 
management. Additionally, by adopting the proposed Guidelines in 
Appendix C to part 364, the FDIC could require a compliance plan or 
take other corrective action if warranted further reducing the 
likelihood and magnitude of loss, and the likelihood of failure.
    The proposed Guidelines would result in some compliance costs for 
covered institutions. As previously discussed, FDIC-supervised IDIs 
have an existing requirement to establish operational and management 
standards to ensure the safe and sound operation of the IDI appropriate 
to the size of the IDI and the nature, scope and risk of its 
activities. Additionally, the FDIC has issued a number of guidance 
items related to appropriate risk management and ethics. However, while 
the FDIC has communicated through the supervisory process for larger, 
more complex institutions an expectation that corporate governance and 
risk management frameworks need to be more robust and suitable for the 
IDI's risk profile and business model, the FDIC has not previously 
issued supervisory guidance specifically on corporate governance and 
risk management for covered institutions. Based on the foregoing 
information, the FDIC estimates that the proposed rule, if adopted, 
would compel covered institutions to expend 91,375 labor hours in the 
first year, and 90,365 labor hours each additional year, to comply with 
the recordkeeping, reporting, and disclosure requirements. At an 
estimated wage rate of $139.33 \32\ per hour, this would amount to 
total additional estimated reporting, recordkeeping, and disclosure 
costs of $12.73 million in the first year, and $12.59 million each 
additional year. This estimated annual cost is less than 0.03 percent 
of annual noninterest expense for all covered institutions. 
Additionally, the FDIC believes that covered institutions are likely to 
incur other regulatory costs to achieve compliance with the proposed 
rule, if adopted, such as hiring additional staff and changes to 
internal systems and processes.
---------------------------------------------------------------------------

    \32\ The recordkeeping, reporting, and disclosure compliance 
burden is expected to be distributed between executives, lawyers and 
financial analysts. The estimated weighted average hourly 
compensation cost of these employees are found by using the 75th 
percentile hourly wages reported by the Bureau of Labor Statistics 
(BLS) National Industry-Specific Occupational Employment and Wage 
Estimates for the relevant occupations in the Depository Credit 
Intermediation sector, as of May 2022. These wages are adjusted to 
account for inflation and compensation rates for health and other 
benefits, as of March 2023, to provide an estimate of overall 
compensation.
---------------------------------------------------------------------------

    If adopted, the FDIC believes that the proposed rule would benefit 
the financial sector and customers by reducing the likelihood of 
failure and associated costs. Bank failures impose costs on the DIF and 
negatively affect a wide variety of stakeholders, and reduce public 
confidence in the financial system. The FDIC believes that adoption of 
the proposed rule would help to limit such costs.

V. Alternatives Considered

    The FDIC considered three alternatives: (1) maintaining the status 
quo with no specific guidance for covered institutions; (2) issuing 
guidance specific to covered institutions; and (3) issuing regulations 
on corporate governance for covered institutions. The FDIC believes 
that the proposed Guidelines, if adopted, would improve upon the status 
quo by consolidating and codifying the FDIC's expectations for a 
covered institution's effective corporate governance and risk 
management practices and potentially reducing future losses or bank 
failures and that these benefits outweigh the potential costs. 
Additionally, the FDIC believes that the proposed Guidelines are more 
appropriate than the status quo alternative because they would further 
codify the FDIC's expectations for effective corporate governance and 
risk management practices of a covered institution while still allowing 
the FDIC to consider appropriate variances in an individual covered 
institution's risk profile. The FDIC also considered the alternative of 
issuing guidance for covered institutions. However, such guidance would 
not provide an enforcement framework to ensure compliance such as 
compliance plans under 12 CFR part 308, subpart R, or other actions.

VI. Request for Comments

    The FDIC requests comment on all aspects of the proposed rule and 
proposed Guidelines, including the following:
    1. Should the proposed Guidelines apply to FDIC-supervised 
institutions with $10 billion or more in total consolidated assets, or 
would a higher or lower threshold be appropriate? Alternatively, should 
the proposed Guidelines only apply to FDIC-supervised institutions that 
are examined under the FDIC's Continuous Examination Process? Please 
explain.
    2. Is there a need to differentiate corporate governance and risk 
management requirements for covered institutions with $50 billion or 
more in total consolidated assets (or some other threshold)? Please 
explain.
    3. Should the proposed Guidelines apply to any insured state 
nonmember bank or insured state savings association with total 
consolidated assets less than $10 billion if that institution's parent 
company controls at least one covered institution?
    4. The proposed Guidelines include a reservation of authority 
enabling the FDIC to determine that compliance with the proposed 
Guidelines should not be, or no longer be, required for a covered 
institution based on risk and complexity. Should there be an 
application process in accordance with subpart A of part 303 of the 
FDIC's regulations for a covered institution to request exemption from 
the

[[Page 70399]]

requirements of these proposed Guidelines? If so, what criteria would 
be appropriate for FDIC to establish to consider such a request?
    5. Should the covered institution and its parent holding company 
with other affiliates be required to have separate risk management 
officers and staff? Please explain.
    6. The proposed Guidelines provide that a covered institution may 
use its parent company's risk governance framework to satisfy the 
Guidelines based on certain factors. What other factors, if any, should 
the FDIC consider?
    7. Should the proposed Guidelines include more specific suggestions 
for corporate governance? If so, what additional suggestions should be 
included?
    8. Should the proposed Guidelines include more specific 
requirements for risk management? If so, what additional requirements 
should be included?
    9. Do the proposed Guidelines provide sufficient and appropriate 
requirements regarding the role of the board for corporate governance 
and risk management? Please explain.
    10. Do the proposed Guidelines provide sufficient and appropriate 
requirements regarding the role of executive management for managing 
the covered institution and its risks? Please explain.
    11. Should the CRO or the CAO report to the board or solely to a 
board committee? Please explain.
    12. Do the CRO or the CAO and their associated functions have 
sufficient independence under the proposed Guidelines? Please explain.
    13. Would the proposed Guidelines have any costs or benefits that 
the FDIC has not identified? If so, please identify and discuss.
    14. Are there alternative ways to achieve the objectives of these 
proposed Guidelines that would impose lower burdens and costs on 
covered institutions? If so, what alternatives would be appropriate?

VII. Regulatory Analysis

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency, 
in connection with a proposed rule, to prepare and make available for 
public comment an initial regulatory flexibility analysis that 
describes the impact of the proposed rule on small entities.\33\ 
However, an initial regulatory flexibility analysis is not required if 
the agency certifies that the proposed rule will not, if promulgated, 
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 $850 million.\34\ Generally, the FDIC considers a 
significant economic impact to be a quantified effect in excess of 5 
percent of total annual salaries and benefits or 2.5 percent of total 
noninterest expenses. The FDIC believes that effects in excess of one 
or more of these thresholds typically represent significant economic 
impacts for FDIC-supervised IDIs. The proposed rule would only apply to 
FDIC-supervised state nonmember banks, savings associations, and state 
branches of foreign banks having total consolidated assets of $10 
billion or more. As of the quarter ending March 31, 2023, the FDIC 
supervised 3,012 depository institutions, of which 2,306 are considered 
``small'' for the purposes of RFA. As of the quarter ending March 31, 
2023, there are no small, FDIC-insured institutions with $10 billion or 
more in total consolidated assets. In light of the foregoing, the FDIC 
certifies that the proposed rule would not have a significant economic 
impact on a substantial number of small entities. Accordingly, an 
initial regulatory flexibility analysis is not required.
---------------------------------------------------------------------------

    \33\ 5 U.S.C. 601 et seq.
    \34\ The SBA defines a small banking organization as having $850 
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 the SBA [87 FR 69118 (Nov. 17, 2022]), effective 
December 19, 2022). 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 an 
insured depository institution's affiliated and acquired assets, 
averaged over the preceding four quarters, to determine whether the 
insured depository institution is ``small'' for the purposes of RFA.
---------------------------------------------------------------------------

    The FDIC invites comments on all aspects of the supporting 
information provided in this RFA section. In particular, would this 
proposed rule have any significant effects on small entities that the 
FDIC has not identified?

B. Paperwork Reduction Act

    Certain provisions of the proposed rule contain ``collection of 
information'' requirements within the meaning of the Paperwork 
Reduction Act of 1995 (PRA).\35\ In accordance with the PRA, the FDIC 
may not conduct or sponsor, and an organization is not required to 
respond to this information collection, unless the information 
collection displays a currently valid Office of Management and Budget 
(OMB) control number. The FDIC will request approval from the OMB for 
this proposed information collection. OMB will assign an OMB control 
number.
---------------------------------------------------------------------------

    \35\ 44 U.S.C. 3501-3521.
---------------------------------------------------------------------------

    OMB Number: 3064-NEW.
    Frequency of Response: Periodic--see table below.
    Affected Public: FDIC-supervised IDIs.
    Total Estimated Annual Burden: 91,375 hours.
    The FDIC estimates that a covered institution that currently has 
strong corporate governance and risk management programs may not need 
to significantly increase the number of hours it spends on corporate 
governance and risk management to comply with the proposed Guidelines.

                                                 Estimated Hourly Burden--2023 Part 364, Appendix C NPR
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                               Total
                   Information collection                                                     Number         Number of       Time per        estimated
      Number          description  and         Type of burden            Frequency          respondents    responses per     response     annual  burden
                          citation                                                                          respondent                        (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................  Audit Committee,        Recordkeeping.........  One-Time.............               1               1              40              40
                    Review and Approval
                    of the Internal Audit
                    Unit's Charter
                    Section I(D)(7)(b)
                    One-Time.
2................  Audit Committee,        Recordkeeping.........  Annually.............               1               1              20              20
                    Annual Review and
                    Approval of the
                    Internal Audit Unit's
                    Charter Section
                    I(D)(7)(c) Ongoing.
3................  Development of a        Recordkeeping.........  One-Time.............               1               1             120             120
                    Written Strategic
                    Plan Section II(C)(2)
                    One-Time.
4................  Annual Evaluation and   Recordkeeping.........  Annually.............              57               1              60           3,420
                    Approval of Strategic
                    Plan Section II(C)(2)
                    Ongoing.

[[Page 70400]]

 
5................  Board, Establishment    Recordkeeping.........  One-Time.............               1               1              40              40
                    and Approval of
                    Policies Governing
                    Operations Section
                    II(C)(3) One-Time.
6................  Board, Annual Review    Recordkeeping.........  Annually.............              57               1              20           1,140
                    Policies Governing
                    Operations Section
                    II(C)(3) Ongoing.
7................  Establishment of a      Recordkeeping.........  One-Time.............               1               1              40              40
                    Written Code of
                    Ethics Section
                    II(C)(4) One-Time.
8................  Annual Review Written   Recordkeeping.........  Annually.............              57               1              20           1,140
                    Code of Ethics
                    Section II(C)(4)
                    Ongoing.
9................  Establishment of a      Recordkeeping.........  One-Time.............               1               1              40              40
                    Management
                    Performance Review
                    Process Section
                    II(C)(7) One-Time.
10...............  Annual Review of        Recordkeeping.........  Annually.............              57               1              20           1,140
                    Management
                    Performance Review
                    Process Section
                    II(C)(7) Ongoing.
11...............  Development of a        Recordkeeping.........  One-Time.............               1               1              40              40
                    Succession Plan
                    Section II(C)(7) One-
                    Time.
12...............  Annual Review           Recordkeeping.........  Annually.............              57               1              20           1,140
                    Succession Plan
                    Section II(C)(7)
                    Ongoing.
13...............  Establishment of a      Recordkeeping.........  One-Time.............               1               1              50              50
                    Training Program for
                    Directors Section
                    II(C)(8) One-Time.
14...............  Annual Review Training  Recordkeeping.........  Annually.............              57               1              25           1,425
                    Program for Directors
                    Section II(C)(8)
                    Ongoing.
15...............  Board Annual Self-      Recordkeeping.........  Annually.............              57               1              20           1,140
                    Assessment Section
                    II(C)(9) Ongoing.
16...............  Establishment of a      Recordkeeping.........  One-Time.............               1               1             100             100
                    Compensation and
                    Performance
                    Management Program
                    Section II(C)(10) One-
                    Time.
17...............  Annual Review of        Recordkeeping.........  Annually.............              57               1              50           2,850
                    Compensation and
                    Performance
                    Management Program
                    Section II(C)(10)
                    Ongoing.
18...............  Establishment of a      Recordkeeping.........  One-Time.............               1               1              40              40
                    Written Charter for
                    Board Committees
                    Section II(D) One-
                    Time.
19...............  Annual Review of        Recordkeeping.........  Annually.............              57               1              20           1,140
                    Written Charter for
                    Board Committees
                    Section II(D) Ongoing.
20...............  Board Approval of       Recordkeeping.........  One-Time.............               1               1              20              20
                    Charter of Internal
                    Audit Function
                    Section II(D)(1)(e)
                    One-Time.
21...............  Board Annual Review of  Recordkeeping.........  Annually.............              57               1              10             570
                    Charter of Internal
                    Audit Function
                    Section II(D)(1)(f)
                    Ongoing.
22...............  Audit Committee,        Recordkeeping.........  On Occasion..........              57               1              40           2,280
                    Approval of all Audit
                    Services Section
                    II(D)(1)(b) Ongoing.
23...............  Audit Committee,        Recordkeeping.........  On Occasion..........              57               1              40           2,280
                    Approval all
                    Decisions Regarding
                    the Appointment or
                    Removal and Annual
                    Compensation and
                    Salary Adjustment for
                    the CAO Section
                    II(D)(1)(d) Ongoing.
24...............  Risk Committee,         Recordkeeping.........  One-Time.............               1               1              40              40
                    Approval of Risk
                    Management Policies
                    Section II(D)(4) One-
                    Time.
25...............  Risk Committee, Annual  Recordkeeping.........  Annually.............              57               1              20           1,140
                    Review of Charter of
                    Internal Audit
                    Function Section
                    II(D)(4) Ongoing.
26...............  Risk Committee,         Recordkeeping.........  Quarterly............              57               4              40           9,120
                    Quarterly Review of
                    CRO Reports Section
                    II(D)(4)(e) Ongoing.
27...............  Risk Committee,         Recordkeeping.........  Quarterly............              57               4              40           9,120
                    Quarterly
                    Documentation of
                    Proceedings and Risk
                    Management Decisions
                    Section II(D)(4)(f)
                    Ongoing.
28...............  Risk Committee,         Recordkeeping.........  On Occasion..........              57               1              40           2,280
                    Approval of Decisions
                    Regarding Appointment
                    or Removal of CRO
                    Section II(D)(4)(g)
                    Ongoing.
29...............  Board Establishment of  Recordkeeping.........  One-Time.............               1               1             100             100
                    a Comprehensive Risk
                    Management Program
                    Section III(A) One-
                    Time.
30...............  Board Annual Review of  Recordkeeping.........  Annually.............              57               1              50           2,850
                    Comprehensive Risk
                    Management Program
                    Section III(A)
                    Ongoing.
31...............  Board Establishment of  Recordkeeping.........  One-Time.............               1               1              40              40
                    a Risk Profile
                    Section III(B) One-
                    Time.
32...............  Board Quarterly Review  Recordkeeping.........  Quarterly............              57               4              40           9,120
                    of Risk Profile
                    Section III(B)
                    Ongoing.
33...............  Establishment of a      Recordkeeping.........  One-Time.............               1               1              40              40
                    Comprehensive Written
                    Statement that
                    Establishes Risk
                    Appetite Limits
                    Section III(B) One-
                    Time.
34...............  Board Quarterly Review  Recordkeeping.........  Quarterly............              57               4              20           4,560
                    and Approval of Risk
                    Appetitive Statement
                    Section III(B)
                    Ongoing.
35...............  Report Risk Limit       Reporting.............  On Occasion..........              57               1              20           1,140
                    Breaches to the FDIC
                    Section
                    III(C)(2)(c)(iii)
                    Ongoing.

[[Page 70401]]

 
36...............  Front Line Unit,        Recordkeeping.........  One-Time.............               1               1              40              40
                    Establishment of
                    Written Policies that
                    Include Risk Limits
                    Section
                    III(C)(3)(a)(ii) One-
                    Time.
37...............  Front Line Unit,        Recordkeeping.........  Annually.............              57               1              20           1,140
                    Annual Review of
                    Written Policies that
                    Include Risk Limits
                    Section
                    III(C)(3)(a)(ii)
                    Ongoing.
38...............  Front Line Unit,        Recordkeeping.........  One-Time.............               1               1              40              40
                    Establish Procedures
                    and Processes, as
                    Necessary to Ensure
                    Compliance with Board
                    Policies Section
                    III(C)(3)(a)(iii) One-
                    Time.
39...............  Front Line Unit,        Recordkeeping.........  Annually.............              57               1              20           1,140
                    Annual Review of
                    Procedures and
                    Processes, as
                    Necessary to Ensure
                    Compliance with Board
                    Policies Section
                    III(C)(3)(a)(iii)
                    Ongoing.
40...............  Front Line Unit,        Recordkeeping.........  Quarterly............              57               4              40           9,120
                    Quarterly Monitor and
                    Report Compliance
                    with Respective Risk
                    Limits Section
                    III(C)(3)(a)(v)
                    Ongoing.
41...............  Independent Risk        Recordkeeping.........  Quarterly............              57               4              40           9,120
                    Management Unit,
                    Quarterly Monitor and
                    Report on the Covered
                    Institution's Risk
                    Profile Relative to
                    Risk Appetite and
                    Concentration Limits
                    Section
                    III(C)(3)(b)(iii)
                    Ongoing.
42...............  Independent Risk        Recordkeeping.........  One-Time.............               1               1              40              40
                    Management Unit,
                    Establishment of
                    Policies Relative to
                    Concentration Risk
                    Limits Section
                    III(C)(3)(b)(iv) One-
                    time.
43...............  Independent Risk        Recordkeeping.........  Annually.............              57               1              40           2,280
                    Management Unit,
                    Review and Update of
                    Policies Relative to
                    Concentration Risk
                    Limits Section
                    III(C)(3)(b)(iv)
                    Ongoing.
44...............  Independent Risk        Recordkeeping.........  One-Time.............               1               1              20              20
                    Management Unit,
                    Establishment of
                    Procedures and
                    Processes to Ensure
                    Compliance with Board
                    Risk Management
                    Policies Section
                    III(C)(3)(b)(v) One-
                    time.
45...............  Independent Risk        Recordkeeping.........  Annually.............              57               1              10             580
                    Management Unit,
                    Review and Update of
                    Procedures and
                    Processes to Ensure
                    Compliance with Board
                    Risk Management
                    Policies Section
                    III(C)(3)(b)(v)
                    Ongoing.
46...............  Independent Risk        Recordkeeping.........  Quarterly............              57               4              10           2,280
                    Management Unit,
                    Quarterly Monitor and
                    Report to CEO and
                    Risk Committee Front
                    Line Units'
                    Compliance with Risk
                    Limits Section
                    III(C)(3)(b)(vii)
                    Ongoing.
47...............  Internal Audit Unit,    Recordkeeping.........  One-Time.............               1               1              40              40
                    Establishment of an
                    Audit Plan Section
                    III(C)(3)(c)(ii)One-
                    Time.
48...............  Internal Audit Unit,    Recordkeeping.........  Quarterly............              57               4              10           2,280
                    Quarterly Report
                    Changes to Audit Plan
                    Section
                    III(C)(3)(c)(ii)
                    Ongoing.
49...............  Board, Establishment    Recordkeeping.........  One-Time.............               1               1              40              40
                    of Processes that
                    Require the Front
                    Line and Independent
                    Risk Management Units
                    to Identify and
                    Distinguish Breaches,
                    as well as
                    Establishment of
                    Accountability for
                    Reporting and
                    Resolving Breaches
                    Section III(E) One-
                    Time.
50...............  Board, Annual Review    Recordkeeping.........  Annually.............              57               1              20           1,140
                    Processes that
                    Require the Front
                    Line and Independent
                    Risk Management Units
                    to Identify and
                    Distinguish Breaches,
                    as well as Establish
                    Accountability for
                    Reporting and
                    Resolving Breaches
                    Section III(E)
                    Ongoing.
51...............  Front Line and          Reporting.............  On Occasion..........              57               1              20           1,140
                    Independent Risk
                    Management Units
                    Report to the FDIC
                    Breach of a Risk
                    Limit or
                    Noncompliance with
                    the Risk Appetite
                    Statement or Risk
                    Management Program
                    Section III(E)(3)
                    Ongoing.
52...............  Board, Establishment    Recordkeeping.........  One-Time.............               1               1              40              40
                    of Processes that
                    Require Front Line
                    and Independent Risk
                    Management Units to
                    Identify,
                    Distinguish, Document
                    and Report Violations
                    of Law or Regulations
                    Section III(F) One-
                    Time.

[[Page 70402]]

 
53...............  Board, Annual Review    Recordkeeping.........  Annually.............              57               1              20           1,140
                    of Processes that
                    Require Front Line
                    and Independent Risk
                    Management Units to
                    Identify,
                    Distinguish, Document
                    and Report Violations
                    of Law or Regulations
                    Section III(F)
                    Ongoing.
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Hourly Burden.................................................................  ..............  ..............  ..............          91,375
--------------------------------------------------------------------------------------------------------------------------------------------------------

General Description
    Section 39 of the FDI Act requires the FDIC to issue certain safety 
and soundness standards by regulation or guideline. In this instance, 
the FDIC is proposing guidelines to address corporate governance and 
risk management by covered institutions. The FDIC estimates that most, 
if not all covered institutions, as part of their standard governance 
and risk management practices, maintain procedures discussed in the 
proposed Guidelines, so the FDIC is assigning a one placeholder for 
implementation burden. However, the FDIC is estimating the burden 
associated with what covered institutions need to do going forward to 
comply with the proposed Guidelines.
    This information collection includes the need for a strategic plan, 
a risk committee, board review of information and policies, formal 
training program for directors, self-assessments, compensation and 
performance management programs, risk profile and risk appetite 
statement, a written risk management program, front line units, an 
independent risk management unit, an internal audit unit, and processes 
for governing risk limit breaches and noncompliance with laws or 
regulation.
    Comments are invited on:
    (a) Whether the proposed collection of information is necessary for 
the proper performance of the functions of the FDIC, including whether 
the information will have practical utility;
    (b) The accuracy of the FDIC's estimate of burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used, including the FDIC's estimated implementation 
burden;
    (c) Ways to enhance the quality, utility, and clarity of the 
information to be collected;
    (d) Ways to minimize the burden of the information collection on 
those who are to respond, including appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology (e.g., permitting electronic submission of 
responses); and
    (e) Estimates of capital or start-up costs and costs of operation, 
maintenance, and purchase of services to provide information.
    All comments will become a matter of public record. Comments on the 
collection of information should be sent to the address listed in the 
ADDRESSES section of this document. A copy of the comments may also be 
submitted to the OMB desk officer by mail to: U.S. Office of Management 
and Budget, 725 17th Street NW, #10235, Washington, DC 20503, or by 
facsimile to 202-395-6974; or email to [email protected], 
Attention, Federal Banking Agency Desk Officer.

C. Riegle Community Development and Regulatory Improvement Act of 1994

    Pursuant to Section 302(a) of the Riegle Community Development and 
Regulatory Improvement Act of 1994 \36\ (RCDRIA), in determining the 
effective date and administrative compliance requirements for new 
regulations that impose additional reporting, disclosure, or other 
requirements on insured depository institutions, 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 affected 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 insured depository institutions 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.\37\ The 
FDIC invites comments that will further inform its consideration of 
RCDRIA.
---------------------------------------------------------------------------

    \36\ 12 U.S.C. 4802(a).
    \37\ 12 U.S.C. 4802(b).
---------------------------------------------------------------------------

D. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act \38\ requires the Federal 
banking agencies to use plain language in all proposed and final rules 
published after January 1, 2000. The FDIC invites your comments on how 
to make the proposed rule and Guidelines easier to understand. For 
example:
---------------------------------------------------------------------------

    \38\ Public Law 106-102, sec. 722, 113 Stat. 1338, 1471 (1999).
---------------------------------------------------------------------------

     Has the FDIC organized the material to suit your needs? If 
not, how could this material be better organized?
     Are the requirements in the proposed rule and proposed 
Guidelines clearly stated? If not, how could the proposed rule and 
proposed Guidelines be more clearly stated?
     Do the proposed rule and proposed Guidelines contain 
language or 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 proposed rule and proposed 
Guidelines easier to understand? If so, what changes to the format 
would make the proposed rule and proposed Guidelines easier to 
understand?
     What else could the FDIC do to make the proposed rule and 
proposed Guidelines easier to understand?

E. Providing Accountability Through Transparency Act of 2023

    The Providing Accountability Through Transparency Act of 2023 (12 
U.S.C. 553(b)(4)) requires that a notice of proposed rulemaking include 
the internet address of a summary of not more than 100 words in length 
of a proposed rule, in plain language, that shall be posted on the 
internet website under section 206(d) of the E-Government Act of 2002 
(44 U.S.C. 3501 note).

[[Page 70403]]

    In summary, the FDIC is proposing to issue Guidelines as a new 
Appendix C to part 364 (part 364) to strengthen the corporate 
governance and risk management practices and board oversight of FDIC-
supervised institutions with total consolidated assets of $10 billion 
or more. The proposed Guidelines are intended to raise the FDIC's 
standards for corporate governance, risk management, and control to 
help ensure these larger institutions effectively anticipate, evaluate, 
and mitigate the risks they face. The proposal and the required summary 
can be found at https://www.fdic.gov/resources/regulations/federal-register-publications/.

List of Subjects

12 CFR Part 308

    Administrative practice and procedure, Bank deposit insurance, 
Banks, Banking, Claims, Crime, Equal access to justice, Fraud, 
Investigations, Lawyers, Penalties, Safety and soundness compliance 
plans, Savings associations.

12 CFR Part 364

    Banks, Banking, Information, Safety and soundness guidelines.

Authority and Issuance

    For the reasons set forth in the preamble, the Federal Deposit 
Insurance Corporation proposes to amend parts 308 and 364 of chapter 
III of title 12 of the Code of Federal Regulations as follows:

PART 308--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 308 continues to read as follows:

    Authority:  5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 
1464, 1467(d), 1467a, 1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 
1829, 1829(b), 1831i, 1831m(g)(4), 1831o, 1831p-1, 1832(c), 1884(b), 
1972, 3102, 3108(a), 3349, 3909, 4717, 5412(b)(2)(C), 5414(b)(3); 15 
U.S.C. 78(h) and (i), 78o(c)(4), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 
78u-2, 78u-3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 
U.S.C. 330, 5321; 42 U.S.C. 4012a; Pub. L. 104-134, sec. 31001(s), 
110 Stat. 1321; Pub. L. 109-351, 120 Stat. 1966; Pub. L. 111-203, 
124 Stat. 1376; Pub. L. 114-74, sec. 701, 129 Stat. 584.

0
2. Revise Sec.  308.302 (a) to read as follows:


Sec.  308.302   Determination and notification of failure to meet a 
safety and soundness standard and request for compliance plan.

* * * * *
    (a) Determination. The FDIC may, based upon an examination, 
inspection or any other information that becomes available to the FDIC, 
determine that a covered institution has failed to satisfy the safety 
and soundness standards set out in part 364 of this chapter and in the 
Interagency Guidelines Establishing Standards for Safety and Soundness 
in appendix A, the Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information in appendix B, and the Guidelines 
Establishing Standards for Corporate Governance and Risk Management for 
Covered Institutions with Total Consolidated Assets of $10 Billion or 
More in appendix C to part 364 of this chapter.
* * * * *

PART 364--STANDARDS FOR SAFETY AND SOUNDNESS

0
3. The authority citation for part 364 continues to read as follows:

    Authority:  12 U.S.C. 1818 and 1819 (Tenth), 1831p-1; 15 U.S.C. 
1681b, 1681s, 1681w, 6801(b), 6805(b)(1).

0
4. Add paragraph (c) to Sec.  364.101 to read as follows:


Sec.  364.101   Standards for safety and soundness.

* * * * *
    (c) Guidelines Establishing Standards for Corporate Governance and 
Risk Management for Covered Institutions with Total Consolidated Assets 
of $10 Billion or More. The Guidelines Establishing Standards for 
Corporate Governance and Risk Management for Covered Institutions with 
Total Consolidated Assets of $10 Billion or More pursuant to Section 39 
of the Federal Deposit Insurance Act (12 U.S.C. 1831p-1), as set forth 
as appendix C to this part, apply to all insured state nonmember banks, 
state-licensed insured branches of foreign banks that are subject to 
the provisions of Section 39 of the Federal Deposit Insurance Act, and 
state savings associations with $10 billion or more in total 
consolidated assets.
0
5. Add Appendix C to part 364 to read as follows:

Appendix C to Part 364--Guidelines Establishing Standards for Corporate 
Governance and Risk Management for Covered Institutions With Total 
Consolidated Assets of $10 Billion or More

Table of Contents

I. Introduction
    A. Scope
    B. Preservation of Authority
    C. Reservation of Authority
    D. Definitions
II. Corporate Governance
    A. Board of Directors--General Obligations
    B. Board Composition
    C. Duties of the Board
    D. Committees of the Board
III. Board and Management Responsibility Regarding Risk Management 
and Audit
    A. Risk Management Program
    B. Risk Profile and Risk Appetite Statement
    C. Risk Management Program Standards
    D. Communication Processes
    E. Processes Governing Risk Limit Breaches
    F. Processes Governing Identification of and Response to 
Violations of Law or Regulations

I. Introduction

    Section 39 of the Federal Deposit Insurance Act (FDI Act) 
authorizes the Federal Deposit Insurance Corporation (FDIC) to 
establish safety and soundness standards by regulation or by 
guidelines. The following Guidelines address standards for corporate 
governance, risk management, and boards of directors' oversight for 
covered institutions. These standards are in addition to other 
standards or requirements in law or regulation.\39\
---------------------------------------------------------------------------

    \39\ The roles and responsibilities provided for in these 
Guidelines are in addition to those set forth in existing laws, 
regulations, and regulatory guidelines, including in Appendices A 
and B in part 364. Many of the risk management practices established 
and maintained by a covered institution to meet these standards, 
including loan review and credit underwriting and administration 
practices, should be components of its risk governance framework, 
within the construct of the three distinct units identified herein: 
front line unit, independent risk management unit, and internal 
audit unit.
---------------------------------------------------------------------------

    A. Scope. These Guidelines apply to all insured state nonmember 
banks, state-licensed insured branches of foreign banks, and insured 
state savings associations that are subject to the provisions of 
Section 39 of the FDI Act, with total consolidated assets of $10 
billion or more on or after the effective date of these Guidelines 
(together ``covered institutions'' and each, a ``covered 
institution''). Total consolidated assets means the covered 
institution's total assets, as reported on the covered institution's 
Consolidated Reports of Condition and Income (Call Report) \40\ 
filing, for the two most recent consecutive quarters. An insured 
state nonmember bank, state-licensed insured branch of a foreign 
bank, or an insured state savings association that does not come 
within the scope of these Guidelines on the effective date, but 
subsequently becomes subject to the Guidelines because total 
consolidated assets are $10 billion or more after the effective 
date, as reported on the Call Report for the two most recent 
consecutive quarters, shall be considered a covered institution and 
subject to the Guidelines. If a covered institution under the 
Guidelines reports consolidated assets of less than $10 billion in 
its Call Report filings for four consecutive quarters, the covered 
institution will be classified as a non-covered institution 
beginning the following quarter.
---------------------------------------------------------------------------

    \40\ For insured branches of foreign banks, the term ``Call 
Report'' means the branch's FFIEC 002 filing.
---------------------------------------------------------------------------

    B. Preservation of Existing Authority. Neither Section 39 of the 
FDI Act (12 U.S.C. 1831p-1) nor these Guidelines in any way limits 
the authority of the FDIC to address unsafe or unsound practices, 
unsafe or

[[Page 70404]]

unsound conditions, or violations of law. Action under Section 39 
and these Guidelines may be taken independently of, in conjunction 
with, or in addition to any other enforcement action available to 
the FDIC.
    C. Reservation of Authority.
    1. Upon notice to the institution, the FDIC reserves the 
authority to apply these Guidelines, in whole or in part, to an 
institution that has total consolidated assets less than $10 
billion, if the FDIC determines such institution's operations are 
highly complex or present a heightened risk that warrants the 
application of these Guidelines.
    2. The FDIC reserves the authority, for each covered 
institution, to extend the time for compliance with these Guidelines 
or modify these Guidelines as necessary.
    3. The FDIC reserves the authority to determine that compliance 
with these Guidelines should not be, or should no longer be, 
required for a covered institution. The FDIC would generally make 
the determination under this paragraph if a covered institution's 
operations are not or are no longer highly complex or no longer 
present a heightened risk. In determining whether a covered 
institution's operations are highly complex or present a heightened 
risk, the FDIC will consider factors such as: nature, scope, size, 
scale, concentration, interconnectedness, and mix of the activities 
of the institution.
    D. Definitions.
    1. Chief Audit Officer (CAO) means an individual who leads the 
covered institution's internal audit unit, possesses the skills and 
abilities to effectively implement the internal audit program, and 
reports directly to either the covered institution's board of 
directors (the board) or the board's audit committee and chief 
executive officer (CEO).
    2. Chief Risk Officer (CRO) means an individual who leads a 
covered institution's independent risk management unit and is 
experienced in identifying, assessing, and managing risk exposures 
of large financial firms, with unrestricted access to the board and 
its committees, and reports directly to the board or the board's 
risk committee and, solely for administrative matters, the CEO.
    3. Control means the power, directly or indirectly, to direct 
the management or policies of a covered institution or to vote 25 
percent or more of any class of voting securities of a covered 
institution.
    4. Corporate governance means the set of processes, customs, 
policies, and laws affecting the way a corporation \41\ is directed, 
administered, and controlled and how it manages risks and ensures 
compliance with laws and regulations, including consumer protection 
laws and regulations and the Community Reinvestment Act. Corporate 
governance also includes the relationships among the many 
stakeholders involved and the corporation's goals.
---------------------------------------------------------------------------

    \41\ As used in these Guidelines, the term ``corporate'' and 
``corporation'', where appropriate, includes alternative forms of 
business enterprises, such as limited liability companies.
---------------------------------------------------------------------------

    5. Front line unit means any organizational unit within the 
covered institution that:
    a. Engages in activities designed to generate revenue or reduce 
expenses for the covered institution;
    b. Provides operational support or servicing to any 
organizational unit or function within the covered institution for 
the delivery of products or services to customers; \42\ or
---------------------------------------------------------------------------

    \42\ Notwithstanding the foregoing, ``front line unit'' does not 
ordinarily include an organizational unit or function thereof within 
a covered institution when it is providing solely legal services to 
the covered institution.
---------------------------------------------------------------------------

    c. Provides technology services to any organizational unit or 
function covered by these Guidelines.
    6. Independent risk management unit means any organizational 
unit within the covered institution that is directed by the CRO and 
which has responsibility for identifying, measuring, monitoring, or 
controlling aggregate risks. Such unit maintains independence from 
front line units through the following reporting structure:
    a. The CRO has unrestricted access to the board of directors and 
its committees, including the risk committee, to address risks and 
issues identified through the independent risk management unit's 
activities;
    b. The board of directors or the risk committee reviews and 
approves the risk governance framework;
    c. The independent risk management unit adheres to compensation 
and performance management programs that ensure that the covered 
institution provides incentives to the independent risk management 
unit staff that ensure their independence, are consistent with 
providing an objective assessment of the risks taken by the covered 
institution, and comply with laws and regulations regarding 
excessive or incentive compensation, and complies with the covered 
institution's compensation policies; and
    d. No front line unit executive oversees the independent risk 
management unit.
    7. Internal audit unit \43\ means the organizational unit within 
the covered institution that is designated to fulfill the role and 
responsibilities outlined in part 364, Appendix A, II.B. The 
internal audit unit should maintain independence from the front line 
and independent risk management units through the following 
reporting structure:
---------------------------------------------------------------------------

    \43\ See 12 CFR part 364, Appendix A--Section II.B.
---------------------------------------------------------------------------

    a. The CAO has unrestricted access to the board's audit 
committee to address risks and issues identified through the 
internal audit unit's activities;
    b. The board's audit committee, in accordance with Section 
II.6.a. of these Guidelines, reviews and approves the internal audit 
unit's charter, audit plans, and decisions regarding appointment, 
removal, and compensation of the CAO;
    c. The board's audit committee, in accordance with Section 
II.6.a. of these Guidelines, at least annually or more frequently, 
as necessary, reviews the internal audit unit's charter, audit 
plans, and decisions regarding appointment, removal, and 
compensation of the CAO;
    d. The CEO or the audit committee oversees the internal audit 
unit's administrative activities; and
    e. No front line unit executive oversees the internal audit 
unit.
    8. Parent company means any legal entity that controls the 
covered institution as defined in these Guidelines.
    9. Risk appetite means the aggregate level and types of risk the 
board and management are willing to assume to achieve the covered 
institution's strategic objectives and business plan, consistent 
with safe and sound operation and compliance with applicable laws 
and regulations.
    10. Risk profile means a point-in-time assessment of the covered 
institution's risks aggregated within and across each relevant risk 
category, using methodologies consistent with the risk appetite.

II. Corporate Governance

    A. Board of Directors--General Obligations. The board of 
directors is ultimately responsible for the affairs of a covered 
institution. Each member of the board has a duty to safeguard, 
through the lawful, informed, efficient, and able administration of 
the covered institution, the interests of the covered institution 
and to oversee and confirm that the covered institution operates in 
a safe and sound manner, in compliance with all laws and 
regulations. The board, in supervising the covered institution, 
should consider the interests of all its stakeholders, including 
shareholders, depositors, creditors, customers, regulators, and the 
public.
    1. Governing laws. In the exercise of their duties, directors 
are governed by federal and state banking, securities, and antitrust 
statutes and by common law (all of which may impose potential 
liability on all directors). Directors who fail to discharge their 
duties may be subject to removal from office, criminal prosecution, 
civil money penalties imposed by covered institution regulators, and 
civil liability.
    B. Board Composition. The covered institution's organizational 
documents or state chartering authority may have requirements for 
board members, including the appropriate number of members on its 
board of directors. However, in determining the appropriate number 
of directors and the board's composition, the board should consider 
how the selection of and diversity among board members collectively 
and individually may best promote effective, independent oversight 
of covered institution management and satisfy all legal requirements 
for outside and independent directors.\44\ Important aspects of 
diversity may include: social, racial, ethnic, gender, and age 
differences; skills, differences in experience, perspective, and 
opinion (including professional, educational, and community or 
charitable service experience); and differences in the extent of 
directors' ownership interest in the covered institution

[[Page 70405]]

(for example, directors who own only the amount of stock required by 
state law or those who share ownership interests with family 
members, but are not employed by the covered institution).
---------------------------------------------------------------------------

    \44\ For example, 12 CFR part 348 implements the Depository 
Institution Management Interlocks Act. That Act prohibits 
interlocking relationships of management officials of various 
nonaffiliated depository institutions, depending on the asset size 
and geographical proximity of the organizations.
---------------------------------------------------------------------------

    The board should include a majority of outside and independent 
directors. An independent director is generally a director that is 
(a) not a principal, member, officer, or employee of the 
institution, and (b) not a principal, member, director, officer, or 
employee of any affiliate or principal shareholder of the 
institution.\45\
---------------------------------------------------------------------------

    \45\ In instances where an affiliate or a principal shareholder 
is a holding company, and the holding company conducts limited or no 
additional business operations outside the institution, an 
independent director of the holding company may also be an 
independent director of the institution, as long as they are not a 
principal, member, director, officer, or employee of any other 
institution or holding company affiliates.
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    C. Duties of the Board.
    1. Set an Appropriate Tone. The board should establish a 
corporate culture and work environment that promotes responsible, 
ethical behavior. This culture and environment should not condone or 
encourage imprudent risk-taking, unethical behavior, or violations 
of law, regulation, or policy in pursuit of profit or other business 
objectives, and the board should hold directors, officers, and 
employees accountable for such conduct. By adhering to the 
requirements of law, regulation, these Guidelines, and the covered 
institution's own policies and procedures (including a Code of 
Ethics and a Compensation and Performance Management Program under 
these Guidelines), the board's actions should reflect its commitment 
to integrity, honesty, and ethical conduct.
    2. Approve Strategic Plan for the Covered Institution. The board 
is responsible for providing clear objectives within which the 
covered institution's management can operate and administer the 
covered institution's affairs. The board should direct the CEO to 
develop a written strategic plan with input from front-line units, 
independent risk management, and internal audit. The strategic plan 
should implement operating budgets and encompass the covered 
institution's philosophy and mission. At least annually, the board 
should evaluate and approve the strategic plan, monitor management's 
efforts to implement the strategic plan and respond to unanticipated 
external developments, and ensure the strategic plan is consistent 
with policies the board has approved. The strategic plan should 
discuss the covered institution's goals and objectives over, at a 
minimum, a three-year period and:
    a. Articulate an overall mission statement and strategic 
objectives for the covered institution, including an explanation of 
how the covered institution will achieve those objectives;
    b. Contain a comprehensive assessment of risks that currently 
affect the covered institution or that could affect the covered 
institution during the period covered by the strategic plan;
    c. Explain how the covered institution will update, as 
necessary, its risk management program to account for changes in the 
covered institution's risks projected under the strategic plan; and
    d. Explain how the covered institution will review, update, and 
approve the strategic plan, as necessary, if the covered 
institution's risk profile, risk appetite, or operating environment 
changes in ways not considered in the strategic plan.
    3. Approve Policies. The board is responsible for establishing 
and approving the policies that govern and guide the operations of 
the covered institution in accordance with its risk profile and as 
required by law and regulation. These policies ensure that the board 
has a fundamental understanding of the business of banking and the 
covered institution's associated risks, the risks undertaken by the 
institution are prudently and properly managed, and the covered 
institution is operating in a safe and sound manner. Such policies 
may include, but are not limited to, applicable internal controls, 
loan and credit policies, asset and liability management, and other 
operational and managerial standards to fulfill the responsibilities 
outlined in part 364, Appendix A, II. Such policies should also 
address other legal requirements, including but not limited to 
statutes and regulations regarding real estate lending, Anti Money 
Laundering/Countering the Financing of Terrorism (AML/CFT) 
compliance, consumer protection laws, anti-fraud, and the Community 
Reinvestment Act (CRA). Policies should be written and reviewed at 
least annually to ensure that they remain applicable and up-to-date 
as the covered institution's risks may change based on internal or 
external circumstances. Compliance with the covered institution's 
policies and procedures should be periodically reviewed by internal 
audit.
    4. Establish a Code of Ethics. The board should establish a 
written code of ethics for the covered institution, covering 
directors, management, and employees, addressing areas such as:
    a. Conflicts of interest, self-dealing, protection and proper 
use of covered institution assets, integrity of financial 
recordkeeping, and compliance with laws and regulations;
    b. How to report illegal or unethical behavior, and forbidding 
retaliation for such reporting (also known as a whistleblower 
policy); and
    c. Identifying officials, such as an ethics officer or the 
covered institution's counsel, employees can contact to seek advice 
in the event ethical issues arise and to whom and under what 
circumstances (including those that do not disclose the employee's 
identity) the ethics officer or counsel must report ethical issues 
affecting the covered institution to senior management and the 
board.
    At least annually, the board should review and update, as 
necessary, the code of ethics.
    5. Provide active oversight of management. The board should 
actively oversee the covered institution's activities, including all 
material risk-taking activities. The board should hold management 
accountable for adhering to the strategic plan and approved policies 
and procedures to ensure the covered institution's compliance with 
safe and sound banking practices and all applicable laws and 
regulations. In providing active oversight, the board should 
question, challenge, and when necessary, oppose recommendations and 
decisions made by management that are not in accordance with the 
covered institution's risk appetite, could jeopardize the safety and 
soundness of the covered institution, or undermine compliance with 
applicable laws or regulations. The board also must ensure that 
management corrects deficiencies that auditors or examiners identify 
in a timely manner.
    6. Exercise independent judgment. When carrying out his or her 
duties, each director should exercise sound, independent judgment. 
To the extent possible, the board should ensure that it is not 
excessively influenced by a dominant policymaker, whether 
management, a director, a shareholder, or any combination thereof. 
Risks inherent in such a situation include, but are not limited to:
    a. A dominant policymaker may inhibit the directors' exercise of 
independent judgment or prevent the board from fulfilling its 
responsibilities;
    b. Loss of a dominant officer with concentrated authority may 
deprive the covered institution of competent management; and
    c. Problems resulting from mismanagement are more difficult to 
solve because the covered institution's problems are often 
attributed to the one individual that dominates the covered 
institution.
    7. Select and Appoint Qualified Executive Officers. The board 
must select and appoint executive officers who are qualified to 
administer the covered institution's affairs effectively and 
soundly. The selection criteria should include integrity, technical 
competence, character, and experience in financial services. In 
addition, the board should implement a formal appraisal process to 
periodically review management performance. If any executive 
officer, including the CEO, is unable to meet reasonable standards 
of executive ability or ethical standards, the board should dismiss 
and replace that officer. The board should develop a succession plan 
to address the possible or eventual loss of the CEO and other key 
personnel, and at least annually, such plan should be reviewed and 
updated, as necessary, by the board. The board should also require 
the covered institution to implement adequate training and personnel 
activities so that there is continuity of qualified management and 
competent staff.
    8. Provide Ongoing Training to Directors. To ensure each member 
of the board has the knowledge, skills, and abilities needed to stay 
abreast of general industry trends and any statutory and regulatory 
developments pertinent to their institution and to meet the 
standards set forth in these Guidelines, the board should establish 
and adhere to a formal, ongoing training program for directors. This 
program should include training on:
    a. Products, services, lines of business, and risks that have a 
significant impact on the covered institution;

[[Page 70406]]

    b. Laws, regulations, and supervisory requirements applicable to 
the covered institution; and
    c. Other topics identified by the board.
    9. Self-assessments. The board should conduct an annual self-
assessment evaluating its effectiveness in meeting the standards of 
these Guidelines.
    10. Compensation and Performance Management Programs. If not 
properly structured, incentive compensation arrangements for 
executive and non-executive employees may pose safety and soundness 
risks by providing incentives to take imprudent risks that are not 
consistent with the long-term health of the organization. Some 
incentive programs may inadvertently encourage noncompliance with 
laws or regulations. To avoid these risks, the board should 
establish, and the covered institution should adhere to compensation 
and performance management programs that are consistent with 
applicable laws and regulations and are appropriate to:
    a. Ensure the CEO, front line, independent risk management, and 
internal audit units implement and adhere to, an effective risk 
management program;
    b. Ensure front line unit compensation plans and decisions 
appropriately consider the level and severity of issues and concerns 
identified by the independent risk management and internal audit 
units, even if the covered institution has not or will not realize a 
loss; and
    c. Attract and retain competent staff needed to design, 
implement, and maintain an effective risk management program.
    At least annually, the board should review and update, as 
necessary, the compensation and performance management programs.
    D. Committees of the Board. The board should implement an 
organizational structure to keep members informed and provide an 
adequate framework to oversee the covered institution. Establishing 
board committees allows for a division of labor and enables 
directors with expertise to handle matters that require detailed 
review and in-depth consideration. In addition, certain laws and 
regulations or supervisory policies may require the covered 
institution to establish certain board committees. Each committee 
should have a board-approved written charter outlining its purpose 
and responsibilities:
    1. Audit Committee: The covered institution must have an Audit 
Committee that complies with Section 36 of the Federal Deposit 
Insurance Act and part 363 of the FDIC's regulations.\46\ The audit 
committee of a covered institution must be composed entirely of 
outside and independent directors. The audit committee:
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    \46\ See 12 CFR part 363 Annual Independent Audits and Reporting 
Requirements; see also part 364, Appendix A--Section II.B. If 
permitted under Section 36 and part 363 of the FDIC's regulations, 
the audits of the financial statements and of internal control over 
financial reporting may be done at the consolidated holding company 
level and not the covered institution level.
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    a. Oversees the covered institution's accounting and financial 
reporting processes and audits of its financial statements and its 
internal control over financial reporting;
    b. Approves all audit services; assists board oversight of the 
integrity of the covered institution's financial statements and 
disclosures;
    c. Appoints, compensates, and retains any public accounting firm 
to prepare any audit report and oversees the work of such firms in 
preparing or issuing any audit report;
    d. Approves all decisions regarding the appointment or removal 
and annual compensation and salary adjustment for the CAO;
    e. Approves the charter of and oversees the covered 
institution's internal audit function, including reviewing and 
approving audit plans and reports of the internal audit function 
regarding the effectiveness of the risk management program and 
identified or suspected violations of law or regulations, 
determining whether and how identified issues are being addressed, 
and making recommendations, as necessary, to the board for further 
corrective action;
    f. At least annually, reviews and updates, as necessary, the 
charter of the covered institution's internal audit function; and
    g. Satisfies all other requirements of law, regulation, and 
applicable exchange rules.
    2. Compensation Committee: A covered institution's Compensation 
Committee must comply with applicable laws and regulations,\47\ 
including the FDIC's regulations.\48\ The committee should monitor 
adherence to a compensation and performance management program, 
review compensation packages for executives, and consider executive 
officer performance evaluations. Compensation includes all direct 
and indirect payments or benefits, both cash and non-cash as defined 
in part 364, Appendix A, I.B.3. A covered institution is prohibited 
from paying compensation that constitutes an unsafe and unsound 
practice (including excessive compensation or compensation that 
could lead to material financial loss) and should ensure that their 
incentive compensation arrangements do not encourage imprudent risk-
taking behavior or create incentives for violations of legal 
requirements.
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    \47\ For example, any covered company that has securities 
registered with the Securities and Exchange Commission (SEC) must 
have a compensation committee composed entirely of independent 
directors, 15 U.S.C 78j-3; 17 CFR parts 229 and 240; see, e.g., NYSE 
Listed Company Manual Section 303A.04(a), Nasdaq Equity Rule 
5605(e), and any other or successor corporate governance rules 
prescribed by the exchange's governing body.
    \48\ See 12 CFR part 364, Appendix A--Section II.B.
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    3. Trust Committee: If the covered institution has trust powers, 
it should have a trust committee to ensure that operation of the 
trust department is separate and apart from every other department 
of the covered institution, trust assets are separated from assets 
owned by the covered institution, assets of each trust account are 
separated from the assets of every other trust account, and the 
trust department otherwise complies with all applicable laws and 
regulations.
    4. Risk Committee: The covered institution must have a risk 
committee that approves and at least annually reviews and updates, 
as necessary, the risk management policies of the covered 
institution's operations and that oversees the operation of the 
covered institution's risk management framework. The risk committee 
must:
    a. Be chaired by an independent director;
    b. Be an independent committee of the board that has, as its 
sole function, responsibility for the risk management policies of 
the covered institution and oversight of the covered institution's 
risk management framework;
    c. Report directly to the covered institution's board of 
directors;
    d. Include at least one member experienced in identifying, 
assessing, and managing risk exposures of large firms;
    e. Receive and review regular reports on not less than a 
quarterly basis from the CRO;
    f. Meet at least quarterly, or more frequently as necessary, and 
fully document and maintain records of its proceedings, including 
risk management decisions;
    g. Review and approve all decisions regarding the appointment or 
removal of the CRO, and ensure that the CRO's compensation is 
consistent with providing an objective assessment of the risks taken 
by the covered institution.
    5. Other Committees as Required to Perform Duties: The covered 
institution should establish other committees, as necessary, in 
accordance with its risk profile such as compliance, lending, 
information technology, cybersecurity, and investments.
    At least annually, the board should review and update, as 
necessary, the written charter for each committee.

III. Board and Management Responsibilities Regarding Risk Management 
and Audit

    The board of a covered institution should establish, and 
management should implement and manage, a comprehensive and 
independent risk management function and effective programs for 
internal controls, risk management, and audit.
    A. Risk Management Program. The covered institution should have 
and adhere to a risk management program that identifies, measures, 
monitors, and manages risks of the covered institution through a 
framework appropriate for the current and forecasted risk 
environment and that meets the minimum standards of these 
Guidelines. The risk management program should cover the following 
risk categories as applicable: credit, concentration, interest rate, 
liquidity, price, model, operational (including, but not limited to, 
conduct, information technology, cyber-security, AML/CFT compliance, 
and the use of third parties to perform or provide services or 
materials for the institution), strategic, and legal risk. The risk 
management program should ensure that the covered institution's 
activities are conducted in compliance with applicable laws and 
regulations. At least annually, the board should review and update, 
as necessary, the risk management program.
    For a covered institution that has a parent company, if the risk 
profiles of each entity are substantially similar, the covered 
institution may adopt and implement all or any part of its parent 
company's risk management program that:

[[Page 70407]]

    1. Satisfies the minimum standards in these Guidelines;
    2. Ensures that the safety and soundness of the covered 
institution is not jeopardized by decisions made by the parent 
company's board and management;
    3. Ensures that the covered institution's risk profile is easily 
distinguished and separate from that of its parent for risk 
management and supervisory reporting purposes; and
    4. Consideration of these factors may require the covered 
institution to have separate and focused governance and risk 
management practices.
    B. Risk Profile and Risk Appetite Statement. The covered 
institution should create and quarterly review and update, as 
necessary, a risk profile that identifies its current risks. Based 
upon its risk profile, the covered institution should have a 
comprehensive written statement, that is reviewed quarterly and 
updated, as necessary, that establishes risk appetite limits for the 
covered institution, both in the aggregate and for lines of business 
and material activities or products. The risk appetite statement 
should:
    1. Reflect the level of risk that the board and management are 
willing to accept.
    2. Include both qualitative components and quantitative limits:
    a. The qualitative components should describe a safe and sound 
risk culture and how the covered institution will assess and accept 
risks, including those that are difficult to quantify.
    b. Quantitative limits should explicitly constrain the size of 
risk exposures relative to the covered institution's earnings, 
capital, and liquidity position that management may accept without 
board approval.
    3. Set limits at levels that take into account appropriate 
capital and liquidity buffers and that prompt management and the 
board to reduce risk before the covered institution's risk profile 
jeopardizes the adequacy of its earnings, liquidity, or capital.
    The board should review and approve the risk appetite statement 
at least quarterly, or more frequently, as necessary, based on the 
size and volatility of risks and any material changes in the covered 
institution's business model, strategy, risk profile, or market 
conditions. The covered institution's management, front line units, 
and independent risk management unit should incorporate the risk 
appetite statement, concentration risk limits, and front line unit 
risk limits into:
    a. Strategic and annual operating plans;
    b. Capital stress testing and planning processes;
    c. Liquidity stress testing and planning processes;
    d. Product and service risk management processes, including 
those for approving new and modified products and services;
    e. Decisions regarding acquisitions and divestitures; and
    f. Compensation and performance management programs.
    C. Risk Management Program Standards.
    1. Governance. The independent risk management unit should 
design a formal, written risk management program that implements the 
covered institution's risk appetite statement and ensures compliance 
with applicable laws and regulations. The unit should review the 
risk management program at least annually, and as often as 
necessary, to address changes in the covered institution's risk 
profile caused by internal or external factors or the evolution of 
industry risk management practices. The board or the Risk Committee 
should review and approve the risk management program and any 
changes to the program.
    2. Scope of risk management program. The risk management 
program, at a minimum, should cover the following risk categories as 
applicable: credit, concentration, interest rate, liquidity, price, 
model, operational (including, but not limited to, conduct, 
information technology, cyber-security, AML/CFT compliance, and the 
use of third parties to perform or provide services or materials for 
the institution), strategic, and legal risk. The risk management 
program should be commensurate with the covered institution's 
structure, risk profile, complexity, activities, and size and should 
include:
    a. Policies and procedures establishing risk-management 
governance, risk management procedures, and risk control 
infrastructure for its operations; and
    b. Processes and systems for implementing and monitoring 
compliance with such policies and procedures, including those for:
    i. Identifying and reporting risks (including emerging risks) 
and risk management deficiencies and ensuring effective and timely 
implementation of actions to address emerging risks and risk 
management deficiencies for its operations;
    ii. Identifying and reporting to the Risk Committee and to the 
internal audit unit known or suspected noncompliance with applicable 
laws or regulations;
    iii. Establishing managerial and employee responsibility for 
risk management;
    iv. Ensuring the independence of the risk management function;
    v. Integrating risk management and associated controls with 
management goals and its compensation structure for operations; and
    vi. Identifying, measuring, monitoring, and controlling the 
covered institution's concentration of risk.
    c. Policies, procedures, and processes designed to ensure that 
the covered institution's risk data aggregation and reporting 
capabilities are appropriate for its size, complexity, and risk 
profile and support supervisory reporting requirements. 
Collectively, these policies, procedures, and processes should 
provide for:
    i. The design, implementation, and maintenance of a data 
architecture and information technology infrastructure that supports 
the covered institution's risk aggregation and reporting needs 
during normal and stressed times;
    ii. The capturing and aggregating of risk data and reporting of 
material risks, concentrations, breaches of risk limits, and 
emerging risks in a timely manner to the board and the CEO;
    iii. The establishment of protocols for when and how to inform 
board, front line unit management, independent risk management, and 
the FDIC of a risk limit breach that takes into account the severity 
of the breach and its impact on the bank, with a requirement to 
provide a written description of how a breach will be resolved; and
    iv. The distribution of risk reports to all relevant parties at 
a frequency that meets their needs for decision-making purposes.
    3. Responsibilities. Three distinct units should have 
responsibility and be held accountable by the CEO and the board for 
monitoring and reporting on the covered institution's compliance 
with the risk management program: front line units, the independent 
risk management unit, and the internal audit unit.\49\ Monitoring 
and reporting should be performed, as often as necessary, based on 
the size and volatility of risks and any material change in the 
covered institution's business model, strategy, risk profile, or 
market conditions.
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    \49\ These roles and responsibilities are in addition to any 
roles and responsibilities set forth in Appendices A and B to part 
364.
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    The responsibilities for each of these units are:
    a. Front Line Units. Front line units should appropriately 
assess and effectively manage all of the risks associated with their 
activities to ensure that front line units do not create excessive 
risks and, when aggregated across front line units, these risks do 
not exceed the limits established in the covered institution's risk 
appetite statement. In fulfilling this responsibility, each front 
line unit should:
    i. Assess, on an ongoing basis, the material risks associated 
with its activities and products and use such risk assessments as 
the basis for fulfilling its responsibilities under this paragraph 
3(a) and for determining needed actions to strengthen risk 
management or reduce risk because of changes in the unit's risk 
profile, products, or other conditions.
    ii. Establish and adhere to a set of written policies that 
include front line unit risk limits as approved by the board. Such 
policies should ensure risks associated with the front line unit's 
activities are effectively identified, measured, monitored, and 
controlled, consistent with the covered institution's risk appetite 
statement, concentration risk limits, and all policies established 
within the risk management program.
    iii. Establish and adhere to procedures and processes, as 
necessary, to ensure compliance with board policies, including risk 
policies and applicable laws and regulations, and at least annually, 
update, as necessary, such procedures and processes.
    iv. Adhere to all applicable policies, procedures, and processes 
established by independent risk management.
    v. Monitor compliance with their respective risk limits and 
report at least quarterly to the independent risk management unit.
    vi. Develop, attract, train, retain, and maintain competent 
staff at levels required to carry out the unit's role and 
responsibilities effectively.
    vii. Adhere to compensation and performance management programs 
that

[[Page 70408]]

comply with laws and regulations regarding excessive or incentive 
compensation and covered institution compensation policies.
    At least annually, each front line should review and update, as 
necessary, the written policies that include risk limits.
    b. Independent Risk Management Unit. Under the direction of the 
CRO, the independent risk management staff should oversee the 
covered institution's risk-taking activities and assess risks and 
issues independent of the CEO and front line units. In fulfilling 
these responsibilities, independent risk management should:
    i. Take primary responsibility and be held accountable by the 
CEO and the board for designing a comprehensive written risk 
management program that meets these Guidelines.
    ii. Identify and assess, on an ongoing basis, the covered 
institution's material risks, in the aggregate and for lines of 
business and material activities or products, and use such risk 
assessments as the basis for fulfilling its responsibilities under 
these Guidelines and for determining needed actions to strengthen 
risk management or reduce risk given changes in the covered 
institution's risk profile, products, or other conditions.
    iii. Monitor the covered institution's risk profile relative to 
the covered institution's risk appetite and compliance with 
concentration risk limits and report on such monitoring to the Risk 
Committee at least quarterly.
    iv. Establish and adhere to policies that include concentration 
risk limits. Such policies should ensure that risks, both in the 
aggregate and for lines of business and material activities or 
products, within the covered institution are effectively identified, 
measured, monitored, and controlled, and are consistent with the 
covered institution's risk appetite statement and all policies and 
processes established within the risk management program. At least 
annually, such policies should be reviewed and updated, as 
necessary.
    v. Establish and adhere to procedures and processes, as 
necessary, to ensure compliance with the board risk management 
policies and with applicable laws and regulations. At least 
annually, such procedures and processes should be reviewed and 
updated, as necessary.
    vi. Ensure that front line units meet the standards in paragraph 
3(a).
    vii. When necessary due to the level and type of risk, monitor 
front line units' compliance with front line unit risk limits, 
engage in ongoing communication with front line units regarding 
adherence to these limits, and report at least quarterly any 
concerns to the CEO and the Risk Committee.
    viii. Identify and communicate to the CEO and the Risk 
Committee:
    a. Material risks and significant instances where independent 
risk management's assessment of risk differs from that of a front 
line unit;
    b. Significant instances where a front line unit is not adhering 
to the risk governance program; and
    c. Identified or suspected instances of noncompliance with laws 
or regulations.
    ix. Identify and communicate to the Risk Committee:
    a. Material risks and significant instances where independent 
risk management's assessment of risk differs from the CEO's 
assessment; and
    b. Significant instances where the CEO is not adhering to, or 
holding front line units accountable for adhering to, the risk 
governance program.
    x. Develop, attract, train, retain, and maintain competent staff 
at levels required to carry out the unit's role and responsibilities 
effectively.
    xi. Adhere to compensation and performance management programs 
that ensure that the covered institution provides compensation and 
other incentives to the independent risk management unit staff that 
ensure their independence, are consistent with providing an 
objective assessment of the risks taken by the covered institution, 
and comply with applicable laws and regulations regarding excessive 
or incentive compensation, and covered institution compensation 
policies.
    c. Internal Audit Unit. In addition to meeting the standards for 
and fulfilling its obligations of internal audit otherwise required 
the internal audit unit should ensure that the covered institution's 
risk management program complies with these Guidelines and is 
appropriate for the size, complexity, and risk profile of the 
covered institution. In carrying out its responsibilities the 
internal audit unit should:
    i. Maintain a complete and current inventory of all of the 
covered institution's material businesses, product lines, services, 
and functions, and assess the risks associated with each, which 
collectively provide a basis for the audit plan required in 
paragraph 3(c)(ii).
    ii. Establish and adhere to an audit plan, updated quarterly or 
more often, as necessary, that takes into account the covered 
institution's risk profile and emerging risks and issues. The audit 
plan should require the internal audit unit to evaluate the adequacy 
of and compliance with policies, procedures, and processes 
established by front line units and the independent risk management 
unit under the risk management program. Changes to the audit plan 
should be communicated to the Audit Committee as they occur.
    iii. Report in writing, conclusions, issues, recommendations, 
and management's response from audit work carried out under the 
audit plan described in paragraph 3(c)(ii) to the Audit Committee. 
The internal audit unit's reports to the Audit Committee should 
identify the root cause of any investigated issue and include:
    1. A determination of whether the root cause creates an issue 
that has an impact on one organizational unit or multiple 
organizational units within the covered institution; and
    2. A determination of the effectiveness of the front line units 
and the independent risk management unit in identifying and 
resolving issues in a timely manner.
    iv. Establish and adhere to processes for independently 
assessing, at least annually, the design and effectiveness of the 
risk management program. The internal audit unit, an external party, 
or the internal audit unit in conjunction with an external party may 
conduct the assessment. The assessment should include a conclusion 
regarding the covered institution's compliance with the standards 
set forth in these Guidelines.
    v. Identify and communicate to the Audit Committee significant 
instances where front line units or independent risk management are 
not adhering to the risk management program. This communication 
should document instances of identified or suspected non-compliance 
with applicable laws or regulations.
    vi. Establish and adhere to a quality assurance process that 
ensures internal audit's policies, procedures, and processes comply 
with applicable regulatory and industry guidance, are appropriate 
for the size, complexity, and risk profile of the covered 
institution, are updated to reflect changes to internal and external 
risk factors, and are consistently followed.
    vii. Develop, attract, train, retain, and maintain competent 
staff at levels required to carry out the unit's role and 
responsibilities effectively.
    viii. Adhere to compensation and performance management programs 
that comply with applicable laws and regulations regarding excessive 
or incentive compensation and covered institution compensation 
policies.
    D. Communication Processes. The risk management program should 
require that the covered institution initially communicate and 
provide ongoing communication and reinforcement of the covered 
institution's risk appetite statement and risk management program 
throughout the covered institution in a manner that ensures 
management and all employees align their risk-taking decisions with 
applicable aspects of the risk appetite statement.
    E. Processes Governing Risk Limit Breaches. The board should 
establish, and the covered institution should adhere to, processes 
that require front line units and the independent risk management 
unit, consistent with their respective responsibilities to:
    1. Identify breaches of the risk appetite statement, 
concentration risk limits, and front line unit risk limits.
    2. Distinguish breaches based on the severity of their impact on 
the covered institution.
    3. Inform front line unit management, the CRO, the Risk 
Committee, the Audit Committee, the CEO, and the FDIC in writing of 
a breach of a risk limit or noncompliance with the risk appetite 
statement or risk management program describing the severity of the 
breach, its impact on the covered institution, and how the breach 
will be, or has been, resolved.
    4. Establish accountability for reporting and resolving breaches 
that include consequences for risk limit breaches that take into 
account the magnitude, frequency, and recurrence of breaches, even 
if the covered institution did not realize a loss from such 
breaches.
    At least annually, the board should review and update, as 
necessary, the processes related to risk limit breaches.

[[Page 70409]]

    F. Processes Governing Identification of and Response to 
Violations of Law or Regulations.
    The board should establish, and the covered institution should 
adhere to, processes \50\ that require front line units and the 
independent risk management unit, consistent with their respective 
responsibilities to:
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    \50\ The covered institution may seek legal advice (from in-
house or outside legal advisors) regarding any breach, including 
known or suspected violation of law, but the covered institution's 
policies and processes should state that seeking legal advice does 
not abrogate the requirement to report any breach.
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    1. Identify known or suspected violations of law or regulations 
applicable to the activities conducted by their units.
    2. Distinguish between violations of law or regulations that 
appear largely technical, inadvertent, or insignificant and those 
that appear willful or may involve dishonesty or misrepresentation.
    3. Document all violations of law or regulations in writing and 
notify the CEO, Audit Committee, and the Risk Committee, including 
information about actions that are being taken to return the 
institution to compliance with the applicable law or regulatory 
requirement.
    4. Ensure that known or suspected violations of law involving 
dishonesty, misrepresentation or willful disregard for requirements, 
whether by a customer or by any covered institution's director, 
manager, employee, or person or entity performing services for the 
covered entity, are promptly reported as required by law or 
regulation \51\ and to relevant law enforcement and federal and 
state agencies, and take prompt action to cease such activity and 
prevent its recurrence.
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    \51\ See, e.g., 12 CFR part 353.
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    5. Report all violations of law or regulation in a manner and on 
a timetable acceptable to the agency with jurisdiction over that law 
or regulation and establish accountability for resolving violations, 
even if the covered institution did not realize a loss from such 
violations.
    At least annually, the board should review and update, as 
necessary, the processes related to identification of and response 
to violations of law or regulations.

Federal Deposit Insurance Corporation.

    By order of the Board of Directors.

    Dated at Washington, DC, on October 3, 2023.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2023-22421 Filed 10-10-23; 8:45 am]
BILLING CODE 6714-01-P