This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

8145 

Vol. 86, No. 22 

Thursday, February 4, 2021 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Parts 303, 333, 335, and 390 

RIN 3064–AF33 

Transferred OTS Regulations 

Regarding Securities Offerings of State 

Savings Associations, Statement of 

Policy on the Use of Offering Circulars, 

Proposed Rulemaking Regarding 

Securities Offerings by State 

Nonmember Banks and State Savings 

Associations, and Other Technical 

Amendments 

AGENCY: Federal Deposit Insurance 

Corporation. 

ACTION: Notice of proposed rulemaking 

and rescission of a statement of policy. 

SUMMARY: In order to streamline Federal 

Deposit Insurance Corporation (FDIC) 

regulations and guidance, the FDIC 

proposes to rescind and remove from 

the Code of Federal Regulations (CFR) 

rules entitled Securities Offerings that 

were transferred to the FDIC from the 

Office of Thrift Supervision (OTS) on 

July 21, 2011, in connection with the 

implementation of Title III of the DoddFrank Wall Street Reform and Consumer 

Protection Act (Dodd-Frank Act). The 

FDIC also is proposing to rescind its 

Statement of Policy Regarding the Use 

of Offering Circulars in Connection with 

the Public Distribution of Bank 

Securities, which provides a guide for a 

State nonmember banks and other 

institutions in the preparation of 

offering circulars. At the same time, the 

FDIC is proposing a new regulation 

regarding securities disclosures to be 

made by State nonmember banks and 

State savings associations (FDICsupervised institutions). In so doing, the 

FDIC would create a unified scheme for 

securities disclosure requirements 

applicable to FDIC-supervised 

institutions. The proposal also would 

include technical amendments to 

update related regulations. 

DATES: Comments must be received on 

or before April 5, 2021. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• FDIC Website: https://

www.fdic.gov/regulations/laws/federal/. 

Follow instructions for submitting 

comments on the agency website. 

• Email: Comments@fdic.gov. Include 

RIN 3064–AF33 on the subject line of 

the message. 

• Mail: James P. Sheesley, Assistant 

Executive Secretary, Attention: 

Comments/RIN 3064–AF33, Federal 

Deposit Insurance Corporation, 550 17th 

Street NW, Washington, DC 20429. 

• Hand Delivery to FDIC: Comments 

may be hand-delivered to the guard 

station at the rear of the 550 17th Street 

NW building (located on F Street) on 

business days between 7 a.m. and 5 p.m. 

Please include your name, affiliation, 

address, email address, and telephone 

number(s) in your comment. All 

statements received, including 

attachments and other supporting 

materials, are part of the public record 

and are subject to public disclosure. 

You should only submit information 

that you wish to make publicly 

available. 

Please note: All comments received 

will be posted generally without change 

to https://www.fdic.gov/regulations/ 

laws/federal/, including any personal 

information provided. 

FOR FURTHER INFORMATION CONTACT: 

Maureen Loviglio, Senior Staff 

Accountant, (202) 898–6777, mloviglio@

fdic.gov, Division of Risk Management 

Supervision; Suzanne Dawley, Counsel, 

sudawley@fdic.gov; or Gregory Feder, 

Counsel, gfeder@fdic.gov, Legal 

Division. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Objectives 

II. Background 

A. FDIC’s General Approach Regarding 

Securities Offerings of Supervised 

Institutions 

B. The Dodd-Frank Act 

C. The Securities Act 

D. OTS Offering Circular Regulations at 12 

CFR Part 563g 

E. Part 390, Subpart W 

F. FDIC-Proposed Securities Disclosure 

Regulations and Previously Adopted 

Statements of Policy 

III. The Proposal To Rescind and Remove the 

Transferred OTS Securities Offerings 

Regulations, To Rescind the FDIC’s 

Statement of Policy, To Propose a New 

Regulation, and To Make Other, 

Technical Amendments 

A. Rescission of Part 390, Subpart W 

B. Rescission of the 1996 Statement of 

Policy 

C. Proposal of Regulation on Securities 

Offering Disclosures 

D. Technical Amendments 

E. Request for Comments 

IV. Expected Effects 

V. Alternatives 

VI. Regulatory Analysis and Procedure 

A. The Paperwork Reduction Act 

B. The Regulatory Flexibility Act 

C. Plain Language 

D. The Economic Growth and Regulatory 

Paperwork Reduction Act 

I. Objectives 

The objectives of the proposed rule 

are twofold. The first is to simplify the 

FDIC’s regulations by removing 

unnecessary regulations, or realigning 

existing regulations in order to improve 

the public’s understanding and to 

improve the ease of reference. The 

second is to promote parity between 

State nonmember banks and State 

savings associations by referring both 

classes of institution to the same 

securities offering regulation. Thus, as 

further detailed below in this 

Supplementary Information section, the 

FDIC proposes to rescind and remove 

from the CFR part 390, subpart W, 

applicable to State savings associations. 

At the same time, the FDIC proposes to 

rescind its current Statement of Policy 

Regarding the Use of Offering Circulars 

in Connection with the Public 

Distribution of Bank Securities (1996 

Statement of Policy), and replace both 

part 390, subpart W and the 1996 

Statement of Policy with a proposed 

regulation that will, among other things, 

incorporate changes in the securities 

laws and regulations that have occurred 

since the statement of policy was last 

updated in 1996 and ensure the 

principles therein are relevant to State 

savings associations. Additionally, the 

FDIC proposes to make technical 

amendments to existing regulations in 

order to update regulatory crossreferences. 

II. Background 

A. FDIC’s General Approach Regarding 

Securities Offerings of Supervised 

Institutions 

Among other things, banks and 

savings associations may issue 

securities as part of organization 


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1See 12 U.S.C. 1815; 12 CFR part 303, subpart B. 

2See 12 U.S.C. 1831o; 12 CFR part 324. 

3See 12 U.S.C. 1818. 

4See 12 CFR 333.4; 12 CFR part 303, subpart I. 

5Public Law 73–22, 48 Stat. 74, 15 U.S.C. 77a et 

seq. Holding companies for banks and thrifts are not 

exempt from the Securities Act. As of June 30, 2020, 

of the 3,264 insured institutions supervised by the 

FDIC, 2,637 have holding companies and 627 do 

not. 

6See 15 U.S.C. 77q(c), which makes it unlawful 

in connection with the offer of a security: ‘‘(a) To 

employ any device, scheme, or artifice to defraud; 

(b) To make any untrue statement of a material fact 

or to omit to state a material fact necessary in order 

to make the statements made, in the light of the 

circumstances under which they were made, not 

misleading; or (c) To engage in any act, practice, or 

course of business which operates or would operate 

as a fraud of deceit upon any person, in connection 

with the purchase or sale of any security.’’ 

7See, e.g., FDIC Statement of Policy, ‘‘Use of 

Offering Circulars in Connection with Public 

Distribution of Bank Securities,’’ September 5, 

1996, (61 FR 46087, Sept. 5, 1996) (available at 

https://www.fdic.gov/regulations/laws/rules/5000- 

500.html#fdic5000statementop). 

8Public Law 111–203, 124 Stat. 1376 (2010). 

9 12 U.S.C. 5411. 

10 12 U.S.C. 5414(b). 

11 12 U.S.C. 5414(c). 

12 76 FR 39246 (July 6, 2011). 

13 12 U.S.C. 5412(b)(2)(B)(i)(II). 

14 12 U.S.C. 1811 et seq. 

15 12 U.S.C. 1813(q). 

16 76 FR 47652 (Aug. 5, 2011). 

17 Id. 

18See 15 U.S.C. 77c(a)(2) (‘‘Except as hereinafter 

expressly provided, the provisions of [the Securities 

Act] shall not apply to any of the following classes 

of securities: . . . (2) Any security issued or 

guaranteed by . . . any bank; . . . or any interest 

or participation in any common trust fund or 

similar fund that is excluded from the definition of 

the term ‘‘investment company’’); 

19See id. at 77c(a)(5)(A), (‘‘Except as hereinafter 

expressly provided, the provisions of [the Securities 

Act] shall not apply to any of the following classes 

of securities: (5) Any security issued (A) by a 

savings and loan association, building and loan 

association, cooperative bank, homestead 

association, or similar institution, which is 

supervised and examined by State or Federal 

authority having supervision over any such 

institution . . .’’); see Public Law 91–547, sec. 

27(c), 84 Stat. 1434 (1970) (requiring that the 

institution be supervised and examined by a State 

efforts; 1 as part of a capital raise,2

including pursuant to an enforcement 

action; 3 and to facilitate a conversion 

from a mutual to stock form of 

ownership.4 As more fully described 

below, generally, banks and savings 

associations are exempt from the 

securities disclosure requirements of the 

Securities Act of 1933 (Securities Act),5

although in certain circumstances State 

securities laws do require compliance 

with all or portions of these 

requirements. The issuance of securities 

by banks and savings associations is, 

however, subject to the antifraud 

provisions of the Federal securities 

laws, which require full disclosure of 

material facts necessary for an investor 

to make a determination to invest in 

securities offered for sale.6 From a safety 

and soundness perspective, serious 

capital loss or litigation could result if 

bank or savings association securities 

are sold in violation of the antifraud 

provisions of the Federal securities 

laws. 

A securities issuance may require a 

registration statement and prospectus. If 

a securities issuance is exempt from 

registration or prospectus requirements, 

the issuer may be required to provide an 

offering document that contains varying 

informational and financial disclosures, 

depending on the exemption provision. 

The offering document can be used to 

comply with the antifraud provisions of 

the Securities Act. As more fully 

described below, the FDIC has not 

issued regulations regarding the content 

of registration statements and 

prospectuses, but rather, historically has 

provided supervisory guidance for 

FDIC-supervised institutions in the form 

of a policy statement to describe 

principles for preparing offering 

circulars.7 Chief among these principles 

has been to refer FDIC-supervised 

institutions to Securities and Exchange 

Commission (SEC) and other agency 

regulations regarding the content of 

registration statements and prospectuses 

to assist them in complying with the 

antifraud provisions of the Securities 

Act. For the reasons described below, 

the FDIC is proposing to rescind the 

1996 Statement of Policy and issue a 

regulation governing the securities 

offering disclosure requirements for 

FDIC-supervised institutions. 

B. The Dodd-Frank Act 

The Dodd-Frank Act,8 signed into law 

on July 21, 2010, provided for a 

substantial reorganization of the 

regulation of State and Federal savings 

associations and their holding 

companies. Beginning July 21, 2011, the 

transfer date established by section 311 

of the Dodd-Frank Act,9 the powers, 

duties, and functions formerly 

performed by the OTS were divided 

among the FDIC, as to State savings 

associations, the Office of the 

Comptroller of the Currency (OCC), as to 

Federal savings associations, and the 

Board of Governors of the Federal 

Reserve System (FRB), as to savings and 

loan holding companies. Section 316(b) 

of the Dodd-Frank Act 10 provides the 

manner of treatment for all orders, 

resolutions, determinations, regulations, 

and advisory materials issued, made, 

prescribed, or allowed to become 

effective by the OTS, providing that, if 

such materials were in effect on the day 

before the transfer date, they continue in 

effect and are enforceable by or against 

the appropriate successor agency until 

they are modified, terminated, set aside, 

or superseded in accordance with 

applicable law by such successor 

agency, by any court of competent 

jurisdiction, or by operation of law. 

Pursuant to section 316(c) of the 

Dodd-Frank Act,11 on June 14, 2011, the 

FDIC’s Board of Directors (FDIC Board) 

approved a ‘‘List of OTS Regulations to 

be Enforced by the OCC and the FDIC 

Pursuant to the Dodd-Frank Wall Street 

Reform and Consumer Protection Act.’’ 

This list was published by the FDIC and 

the OCC as a Joint Notice in the Federal 

Register on July 6, 2011.12

Although section 312(b)(2)(B)(i)(II) of 

the Dodd-Frank Act 13 granted the OCC 

rulemaking authority relating to both 

State and Federal savings associations, 

nothing in the Dodd-Frank Act affected 

the FDIC’s existing authority to issue 

regulations under the Federal Deposit 

Insurance Act (FDI Act) 14 and other 

laws as the ‘‘appropriate Federal 

banking agency’’ or under similar 

statutory terminology. Section 312(c)(1) 

of the Dodd-Frank Act revised the 

definition of ‘‘appropriate Federal 

banking agency’’ contained in section 

3(q) of the FDI Act,15 to add State 

savings associations to the list of entities 

for which the FDIC is designated as the 

‘‘appropriate Federal banking agency.’’ 

As a result, when the FDIC acts as the 

designated ‘‘appropriate Federal 

banking agency’’ (or under similar 

terminology) for State savings 

associations, as it does here, the FDIC is 

authorized to issue, modify, and rescind 

regulations involving such associations. 

As noted, on June 14, 2011, operating 

pursuant to this authority, the FDIC 

Board reissued and re-designated 

certain transferring regulations of the 

former OTS. These transferred OTS 

regulations were published as new FDIC 

regulations in the Federal Register on 

August 5, 2011.16 When it republished 

the transferred OTS regulations as new 

FDIC regulations, the FDIC specifically 

noted that its staff would evaluate the 

transferred OTS rules and might later 

recommend incorporating the 

transferred OTS regulations into other 

FDIC rules, amending them, or 

rescinding them, as appropriate.17

C. The Securities Act 

The Securities Act generally exempts 

securities issued by banks from its 

provisions.18 Similarly, securities 

issued by certain savings institutions 

supervised and examined by State or 

Federal regulators with examination and 

supervision authority are also exempt 

from most Securities Act 

requirements.19 However, bank- and 


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or Federal supervisory authority to qualify for the 

exemption). 

20See footnote 6. 

21See Public Law 91–547, sec. 27(c), 84 Stat. 1434 

(1970) (amended to require that the institution be 

supervised and examined by a State or Federal 

supervisory authority to qualify for the exemption). 

22 Id. 

23See e.g., Hearings before the Senate Comm. On 

Banking and Currency on S. 875, 73d Cong., 1st 

Sess. 99 at 76 (1933) (Mr. Thompson explaining that 

banks should be exempted from securities 

regulations because other regulators provide the 

necessary oversight: ‘‘But when it comes to 

supervision of anything that has to do with Federal 

Reserve banks . . . , or rather, that they investigate 

and control in the sense of the issuance of 

securities, then so far as the surveillance of this bill 

is concerned we exempted them.’’). 

24 77 Cong. Rec. 2941 (1933) (remarks of Rep. 

Rayburn); cf. id. at 2942 (remarks of Rep. Cannon: 

‘‘[the banks] are not properly supervised . . . with 

respect to the sale of their securities.’’). 

25 50 FR 53284 (Dec. 31, 1985). 

26 Id. at 53284–85. At the time, the FHLBB was 

the operating head of the FSLIC. 

27 Id. at 53285 (also citing Professor Louis Loss, 

‘‘people who are forced to undress in public will 

presumably pay some attention to their figures.’’). 

28 50 FR 38839, 38840 (Sept. 24, 1985). 

29 Id. (‘‘The use of inadequate or misleading 

disclosure by individual insured institutions in 

connection with the offer and sale of securities 

could have a significant adverse effect on the 

capabilities of other insured institutions to raise 

capital, could result in an irrational allocation of 

capital within the industry, and could lead to 

illiquid and disorderly markets for the securities of 

insured institutions. Therefore, the [FHLBB] Board 

has the responsibility of regulating the securities 

activities of insured institutions when it determines 

that such regulation is necessary or appropriate for 

the preservation of the safety and soundness of 

insured institutions. Further, the [FHLBB] Board 

has the responsibility of regulating the securities 

activities of insured institutions when it determines 

that such regulation is necessary or appropriate to 

ensure that they are able to perform their functions 

as providers of housing finance. Finally, the 

[FHLBB] Board has the responsibility of regulating 

the securities activities of all insured institutions 

with a class of securities registered under the 

Exchange Act when it determines that such 

regulation is necessary or appropriate in the public 

interest for the protection of investors and to ensure 

fair dealing in the securities of such insured 

institutions.’’). 

30Pub. L. 101–73, 103 Stat. 183 (1989). 

31 Id.; 54 FR 49411 (Nov. 30, 1989). 

32 54 FR at 49417. 

33 Id. 

34 76 FR 47652 (Aug. 5, 2011). 

35 Id. at 47653. 

36 Id. at 47654. 

37 Id. 

38 Id. at 47654. 

39See 39 FR 7434 (Feb. 26, 1974). 

40See 42 FR 27955 (June 1, 1977). 

savings association-issued securities are 

not exempt from the general antifraud 

provisions of the Securities Act.20

The original exemption in section 

3(a)(5) of the Securities Act exempted 

an institution ‘‘substantially all the 

business of which is confined to the 

making of loans to members. . . .’’ 21

However, in 1970, the law was amended 

to require an exempted institution to be 

supervised and examined by a State or 

Federal supervisory authority.22

Lawmakers intended the oversight 

provided by State and Federal banking 

regulators to serve as an alternative to 

oversight by the SEC. 

Legislative history of the Securities 

Act supports this assertion.23 In 

explaining why the 1933 bill did not 

cover bank-issued securities, 

Representative Rayburn explained, 

‘‘[b]ecause the United States 

Government, through its examiners and 

State officials, is supervising these 

banks, and it has been complained that 

we are going into fields where we had 

no business.’’ 24

D. OTS Offering Circular Regulations at 

12 CFR Part 563g 

In 1985, the Federal Home Loan Bank 

Board (FHLBB) adopted the original 

predecessor rule to part 390, subpart W, 

the rules codified at 12 CFR part 563g, 

to ‘‘regulate an area of thrift activity 

currently left unregulated by an 

exemption in the Securities Act for 

securities issued by regulated thrift 

institutions.’’ 25 The FHLBB determined 

that uniform disclosure requirements 

were necessary to address the risk ‘‘that 

securities offerings without uniform 

disclosure requirements would have a 

negative effect on the ability of 

institutions to raise capital and a 

concomitant adverse effect on the safety 

and soundness of such institutions and 

the [Federal Savings and Loan Insurance 

Corporation (FSLIC)].’’ 26

In explaining the impetus for part 

563g, the FHLBB cited Louis D. 

Brandeis’ endorsement of full 

disclosure: ‘‘sunlight is said to be the 

best of disinfectants.’’ 27 In additional 

explanations for promulgating part 

563g, the FHLBB cited section 3(a)(2) of 

the Securities Act and stated that the 

main reason for the exemption of 

securities issued by savings and loans 

associations and similar institutions is 

that the principal Federal authority, 

rather than the SEC, should regulate 

such activity.28 As such, the FHLBB 

determined it was appropriate to 

promulgate securities disclosure 

regulations to protect the public, as well 

as the FSLIC fund.29

In 1989, the Financial Institutions 

Reform, Recovery and Enforcement Act 

(FIRREA) transferred authority to 

regulate savings associations from the 

FHLB System and the FSLIC to the 

OTS.30 FIRREA required the OTS to 

adopt and publish the FHLBB 

regulations and transfer the regulations 

to the OTS as the thrift regulatory 

authority designated by FIRREA.31 The 

OTS transferred and republished part 

563g in 1989 with minor changes.32

Obsolete exceptions from offering 

circular requirements were removed, the 

definition of ‘‘savings association’’ was 

added, the definition of ‘‘insured 

institution’’ was removed, and language 

on what constitutes an unsafe and 

unsound practice was clarified.33

Beyond these minimal changes, the OTS 

transferred part 563g from the FHLBB 

without substantive discussions on 

policy. 

E. Part 390, Subpart W 

As discussed above in section II.B. of 

this Supplementary Information section, 

the Dodd-Frank Act transferred the 

functions, powers, and duties of the 

former OTS relating to State saving 

associations to the FDIC, and named the 

FDIC as the ‘‘appropriate Federal 

banking agency’’ for State saving 

associations.34 In 2011, the FDIC 

transferred all regulations of the former 

OTS applicable to State savings 

associations from 12 CFR chapter V to 

12 CFR chapter III.35

Part 563g of the former OTS’s 

regulations addressed securities 

offerings.36 The FDIC transferred the 

rules in part 563g with only technical 

revisions to part 390, subpart W.37 For 

part 390, subpart W, the FDIC removed 

references to Federal savings 

associations as well as the enforcement 

provisions of the Home Owners’ Loan 

Act (HOLA).38 The FDIC’s reasons for 

rescinding part 390, subpart W at this 

time are discussed in section III of this 

Supplementary Information section, 

below. 

F. FDIC-Proposed Securities Disclosure 

Regulations and Previously Adopted 

Statements of Policy 

Issuance of securities for FDICsupervised institutions generally is 

addressed by State securities laws and 

regulations, which until fairly recently 

have required State-chartered 

institutions to follow SEC regulations. 

In May of 1974, the FDIC proposed a 

regulation that would have required 

State nonmember banks issuing 

securities to comply with disclosure and 

offering-circular requirements.39 The 

FDIC reissued the proposal in 1977 for 

comment with changes based on the 

FDIC’s experience reviewing offering 

circulars voluntarily submitted by State 

nonmember banks.40 The re-proposed 

regulation would have established 

‘‘minimum standards for disclosure of 

material facts in connection with the 

offer and sale by or on behalf of an 

insured State nonmember bank of 

securities issued by the bank where 

such offer and sale meet the criteria 


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8148 Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Proposed Rules 

41 Id. at 27955 (noting that securities issued by a 

bank are exempt from the registration and 

prospectus-delivery provisions of the Securities Act 

but ‘‘they are subject to the general antifraud 

provisions of Section 17(a) of that Act (15 U.S.C. 

77q(a)) and Rule 10b–5 of the Securities and 

Exchange Commission (SEC) (17 CFR 240.10b–5) 

promulgated under Section 10(b) of the Exchange 

Act (15 U.S.C. 78j (b)). See Lehigh. Valley Trust Co. 

v. Central National Bank of Jacksonville, 409 F.2d 

989 (5th Cir. 1969).’’). 

42 42 FR at 27995. 

43 Id. at 27995 (citing 12 U.S.C. 1818(b)). 

44 12 U.S.C. 1815, 1816. 

45 Id. at 27956. 

46 Id. 

47 Id. (citing 12 CFR part 16, which remains in 

force). 

48 44 FR 39469 (July 6, 1979). 

49 Id. 

50 12 CFR part 16. 

51 17 CFR 230.251 through 230.263. 

52 44 FR 39469. 

53 Id. 

54 44 FR 39381 (July 6, 1979). 55 Id. 56 Id. at 39382. 57 Id. The FDIC stated that it believed the 

following information, as applicable, should be 

included in the offering circular of a State 

nonmember bank: (1) The name, address, principal 

place of business and telephone number of the 

issuing bank; (2) the amount and title of the 

securities being offered; (3) the offering price and 

proceeds to the bank on a per share and aggregate 

basis; (4) the plan and cost of distribution; (5) the 

reason for the offering and the purposes for which 

the proceeds are to be used, and a brief description 

of the material risks, if any, involved in the 

purchase of the securities; (6) a description of the 

present and proposed business operations of the 

bank and its capital structure; (7) the principal 

officers, directors and principal security holders 

and the amount of securities owned by each; (8) the 

remuneration and interest in recent or proposed 

transactions of management and principal security 

holders and their associates; (9) the high and low 

sales prices of the securities within the past two 

years and the source of the quotations; (10) a brief 

description of any material pending legal 

proceedings; (11) a summary of any material terms 

and restrictions applicable to the securities; and 

(12) Financial Statements: a balance sheet as of the 

preceding fiscal year end; statements of income for 

the preceding two fiscal years and interim periods 

where necessary; notes to financial statements; and 

schedules of the allowance for possible loan losses. 

Id. 

58 Id. 59See footnote 7. 

60 Id. at 46807–08. 

61 12 CFR 303.163, 333.4, part 335. 

specified in the regulation.’’ 41 The FDIC 

noted that sufficient disclosure to 

enable a purchaser to make an informed 

investment decision is a requirement of 

the antifraud provisions from which 

banks are not exempt.42 Furthermore, a 

State nonmember bank’s failure to 

comply with the securities antifraud 

provisions could result in a violation of 

the law and warrant an enforcement 

action by the FDIC.43

In proposing the regulation, the FDIC 

referenced sections 5 and 6 of the FDI 

Act,44 which require the FDIC Board to 

consider the adequacy of a bank’s 

capital structure.45 The FDIC explained 

that the review of an application by a 

State nonmember bank that has issued 

securities or proposes to issue securities 

should include a review of the 

associated disclosures of material facts 

to ensure such disclosures are 

sufficient.46 Additionally, the FDIC 

noted that the OCC had already adopted 

similar disclosure requirements at 12 

CFR part 16.47

The FDIC subsequently withdrew the 

proposed disclosure regulations on July 

6, 1979.48 In explaining its decision to 

withdraw, the FDIC noted that proposal 

had been public without being acted 

upon for a long time, and that many 

State nonmember banks already were 

complying voluntarily.49 Additionally, 

the FDIC argued that the OCC’s 

securities offering disclosure rules 50

and the SEC’s Regulation A 51 provided 

adequate direction that State 

nonmember banks could rely on in 

preparing offering materials with 

adequate content and proper format.52

In keeping with the ‘‘FDIC’s policy 

favoring the shortening and 

simplification of its regulatory 

requirements wherever possible,’’ the 

FDIC withdrew the proposed part 340 

securities disclosure regulation.53

In its stead, on the same day that the 

proposed part 340 was withdrawn, the 

FDIC published a statement of policy, 

the Statement of Policy Regarding the 

Use of Offering Circulars (1979 

Statement of Policy).54 The 1979 

Statement of Policy was ‘‘applicable to 

the offering of securities by insured 

State nonmember banks and banks in 

organization which intend to apply for 

Federal deposit insurance.’’ 55 The 1979 

Statement of Policy recognized the 

FDIC’s statutory duty to determine 

capital adequacy and stated that its 

purpose was ‘‘to protect insured State 

nonmember banks against possible 

serious capital losses or insolvency that 

could result if bank securities are sold 

in violation of the antifraud provisions 

of the Federal securities laws.’’ 56 The 

1979 Statement of Policy provided a list 

of information that offering circulars 

prepared by an insured State 

nonmember bank should include but 

noted that the FDIC would not impose 

the burden of filing and awaiting 

regulatory approval.57 The FDIC also 

suggested that State nonmember banks 

requiring additional guidance look to 

the OCC’s regulations at 12 CFR part 

16.58

In 1996, the FDIC published a new 

statement of policy, the Statement of 

Policy Regarding the Use of Offering 

Circulars in Connection with the Public 

Distribution of Bank Securities (1996 

Statement of Policy), to address the 

changing laws and standards and needs 

of the industry.59 Among other things, 

the 1996 Statement of Policy included 

enhanced disclosures for mutual-tostock conversions and sales of a bank’s 

securities on bank premises.60 In the 

1996 update, the FDIC recognized that 

certain States are also involved in the 

regulation of securities offered by 

insured State nonmember banks. 

III. The Proposal To Rescind and 

Remove the Transferred OTS Securities 

Offerings Regulations, To Rescind the 

FDIC’s Statement of Policy, To Propose 

a New Regulation, and To Make Other, 

Technical Amendments 

After careful review of part 390, 

subpart W, the FDIC has determined 

that the FDIC should rescind subpart W, 

which is applicable only to State 

savings associations, rescind the FDIC’s 

1996 Statement of Policy, propose a new 

regulation governing securities offering 

disclosures, and make other, technical 

amendments to certain FDIC 

regulations 61 to revise regulatory 

references. 

A. Rescission of Part 390, Subpart W 

The FDIC does not believe it is 

necessary to treat State savings 

associations differently than State 

nonmember banks with respect to 

public disclosure in connection with 

securities issuances. Replacing part 390, 

subpart W with a new regulation that 

applies to all FDIC-supervised 

institutions will ensure that the same 

regulations apply to both State savings 

associations and State nonmember 

banks with regard to registration 

statements, prospectuses, and other 

securities law matters, without creating 

excess burden on either type of insured 

financial institution The new 

requirements (discussed below in 

section III.C. of this Supplementary 

Information section) are consistent with 

both the requirements of part 390, 

subpart W and with the principles set 

forth in the 1996 Statement of Policy. A 

regulation, rather than a statement of 

policy, is appropriate because the 

FDIC’s long-term experience has been 

that FDIC-supervised institutions are 

either required to follow SEC disclosure 

regulations by State law or voluntarily 

follow them and other applicable 

regulations as a means to comply with 

the Federal antifraud provisions. In the 

interests of regulatory transparency, the 

proposed regulation will make clear the 

FDIC’s expectations for disclosures to be 

made in connection with the issuance of 

securities by FDIC-supervised 

institutions. 


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62See, e.g., the Jumpstart Our Business Startups 

Act (JOBS Act), Public Law 112–106, 126 Stat. 306 

(Apr. 5, 2012), which amends certain provisions of 

the Securities Act to exempt certain securities 

offerings from registration requirements. 63See 80 FR 21806, 21856 (Apr. 20, 2015) 

(https://www.sec.gov/rules/final/2015/33-9741.pdf, 

pp. 205–207) for a discussion on how SEC 

regulations relationship with State securities laws 

and preempt certain State registration requirements 

with respect to companies offering securities under 

SEC Regulation A, Tier 2. 

64 15 U.S.C. 77r(b)(1)(B) (preempting state 

registration authority over a security ‘‘listed, or 

authorized for listing, on a national securities 

exchange’’). 

65 15 U.S.C. 77r(b)(3) (preempting state 

registration authority over the ‘‘offer or sale of the 

security to qualified purchasers, as defined by the 

Commission by rule’’). Regulation D relates to 

transactions exempted from the registration 

requirements of section 5 of the Securities Act, 15 

U.S.C. 77d, and is codified at 17 CFR 230.500 

through 230.508. 

66Public Law 112–106, 126 Stat. 306 (April 5, 

2012). 

67See Amendments to Regulation A, Release Nos. 

33–9741, 34–74578, 39–2501, 80 FR 21806 (Apr. 20, 

2015). 17 CFR 230.251 through 230.263. 

68Part 335, entitled Securities of State 

Nonmember Banks and State Savings Associations, 

addresses securities recordkeeping and 

requirements. The proposed regulation would 

create subpart B to contain the existing regulations 

of part 335 and create subpart A to contain the new 

proposed regulation relating to securities offering 

disclosures. 

69 12 U.S.C. 5412(b)(2)(B)(i)(II). 

70See 12 CFR 192.300–192.310. This includes the 

restrictions on the officers and directors’ sale of 

stock post-conversion. 12 CFR 192.505. 

71 17 CFR 230.144. 

72 17 CFR 230.144A. 

Therefore, the FDIC proposes to 

rescind and remove part 390, subpart W, 

and replace it with the proposed 

regulation, addressing securities offering 

disclosure requirements. 

B. Rescission of the 1996 Statement of 

Policy 

Since the 1996 Statement of Policy 

was adopted, the Securities Act was 

revised 62 and the SEC issued new 

regulations,63 State laws applicable to 

certain securities offerings of FDICsupervised institutions were rescinded, 

and the FDIC received supervisory 

authority over State savings 

associations. Rescinding part 390, 

subpart W and the 1996 Statement of 

Policy provides the FDIC with an 

opportunity to bring FDIC-supervised 

institutions’ regulations into harmony 

with current securities laws and 

regulations, to address the preemption 

of State law, and to locate in one place 

the FDIC’s expectations regarding FDICsupervised institutions. 

C. Proposed Regulation on Securities 

Offering Disclosures 

In light of the Securities Act 

exemptions discussed above in section 

II.C. of this Supplementary Information 

section, the FDIC has relied on State 

laws and regulations for securities 

disclosure matters. However, changes to 

the Federal securities laws have resulted 

in the rescission of much of the 

applicable State law. The National 

Securities Markets Improvement Act of 

1996 (NSMIA) preempted state 

authority in two areas that impacted the 

FDIC: Offerings by companies traded on 

a national securities exchange,64 and 

certain exempt offerings under SEC Rule 

506.65 Furthermore, the Jumpstart Our 

Business Startups Act (JOBS Act),66 as 

implemented by SEC regulation, 

preempted State registration authority 

over additional offerings under the 

amended and expanded SEC 

‘‘Regulation A+’’ rules.67

Notwithstanding the preemption of 

State law, it has been the FDIC’s 

experience that FDIC-supervised 

institutions follow SEC regulations 

voluntarily in order to comply with the 

anti-fraud provisions. However, given 

the recent regulatory changes and 

preemption of State law, the FDIC is 

proposing a regulation to address and 

clarify the requirements for securities 

offering disclosures by State 

nonmember banks and State savings 

associations. Similar to the 1996 

Statement of Policy, the amended 

regulation parallels the requirements of 

the applicable SEC and OCC 

regulations. The proposed regulation 

would be located in subpart A of part 

335 of the FDIC’s regulations.68

The proposed regulation would refer 

to these updated laws and regulations 

and also would acknowledge that under 

Section 312(b)(2)(B)(i)(II) of the DoddFrank Act,69 granting the OCC 

rulemaking authority relating to both 

State and Federal savings associations, a 

mutual State savings association that 

intends to use a securities offering in 

connection with a stock offering as part 

of its conversion to the stock form is by 

law subject to the disclosure and other 

requirements of part 192 of the OCC 

regulations, entitled Conversions from 

Mutual to Stock Form.70 The proposed 

regulation would indicate that the 

principles described therein also would 

be relevant for subsidiaries of State 

savings associations that issue securities 

and would add SEC Rule 144 71 and 

Rule 144A 72 to the list of potentially 

relevant Federal regulations for FDICsupervised institutions to reference. 

Rules 144 and 144A provide guidance 

for persons who are not deemed to be 

engaged in a distribution and therefore 

are not underwriters, and for private 

resales of securities to institutions. 

The proposed regulation would apply 

to securities offerings to be made by 

FDIC-supervised institutions in 

organization, FDIC-supervised 

institutions subject to an enforcement 

order that intend to issue securities, and 

FDIC-supervised institutions converting 

from a mutual to stock form of 

ownership. The proposed regulation 

would also apply to securities offerings 

made by the subsidiaries of State 

savings associations in any of the three 

prior scenarios. 

The proposed regulation would 

incorporate defined terms from the 

Securities Act, would specifically 

reference SEC and OCC requirements 

for, and exemptions from, preparing 

registration statements and 

prospectuses, would set forth rules for 

offers and sales of securities by issuers, 

underwriters, and dealers, and would 

impose no new filing or other 

requirements on FDIC-supervised 

institutions. Thus, the proposed 

regulation eschews a recitation of the 

required contents of offering documents 

covering the securities issuances of 

FDIC-supervised institutions and 

instead requires that offering documents 

contain the information that would be 

required by the appropriate SEC form 

when offering securities for sale, if filing 

or registration were required under the 

Federal securities laws, and the 

information that would be required 

under the appropriate registration 

exemption if one applies. The proposed 

regulation thus seeks to treat the 

securities offerings of FDIC-supervised 

institutions more like those of other 

corporations falling under SEC 

jurisdiction and to eliminate a 

duplicative system of regulations and 

forms. 

The proposed regulation also would 

provide requirements regarding sales 

practices on the premises of the issuing 

FDIC-supervised institution or online, 

and would require legends to avoid 

consumer confusion regarding the 

insured status of banking organization 

securities. 

Consistent with existing authorities 

and supervisory practices, and to assess 

compliance with Federal antifraud 

provisions, the FDIC will continue to 

review offering documents issued by 

FDIC-supervised institutions in 

connection with FDIC-supervised 

institutions in organization, FDICsupervised institutions subject to an 

enforcement order that intend to issue 

securities, and FDIC-supervised 

institutions converting from a mutual to 

stock form of ownership. Such offering 

circulars would be required to contain 

the forms and other content required by 

the registration exemption upon which 

the FDIC-supervised institution relies. 

The proposed rule would permit an 


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8150 Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Proposed Rules 

73Call Report data, June 30, 2020. 

74Call Report data for the quarter ending 

December 31 in 2015–2019. 

75Call Report data, June 30, 2020. 

FDIC-supervised institution to 

commence its securities offering upon 

receiving a written statement from the 

FDIC that no additional information or 

changes to the offering documents are 

necessary. Such offerings would have to 

be completed within the timeframe 

required by the appropriate SEC 

regulation, or a timeline imposed by the 

FDIC, including those related to the 

staleness of financial statements. 

The proposed regulation is set forth at 

the end of this Supplementary 

Information section. 

D. Technical Regulatory Amendments 

1. Mutual-to-Stock Conversions 

The FDIC also is proposing to make 

technical amendments to §§ 303.163 

and 333.4 of its regulations, which 

address the conversion of an insured 

mutual state-chartered savings bank to 

the stock form of ownership. As 

described above in section II.D. of this 

Supplementary Information section, the 

former OTS issued regulations relating 

to mutual-to-stock conversions, part 

563b, which was transferred to the OCC 

with respect to Federal and State 

savings associations as part of the DoddFrank Act. Sections 303.163 and 333.4 

refer to the OTS when the reference 

should be to the OCC. Section 303.163 

also refers to part 563b when the 

reference should be to the OCC’s 

regulations at 12 CFR part 192. This 

proposal would make the necessary 

technical amendments. 

2. Part 335 

Part 335, entitled Securities of State 

Nonmember Banks and State Savings 

Associations, addresses securities 

recordkeeping and requirements and 

there are no subparts enumerated. The 

proposal would create subpart B to 

contain the existing regulations of part 

335 and create subpart A to contain the 

new proposed regulation relating to 

securities offering disclosures. 

E. Request for Comments 

The FDIC invites comments on all 

aspects of this proposed action, and 

specifically invites comments on the 

following: 

Question 1. What positive or negative 

impacts, if any, can you foresee in the 

FDIC’s proposal to issue an amended 

regulation with respect to securities 

offering disclosures? 

Question 2. What negative impacts, if 

any, can you foresee in the FDIC’s 

proposal to rescind part 390, subpart W 

and remove it from the Code of Federal 

Regulations? 

Question 3. What negative impacts, if 

any, can you foresee in the FDIC’s 

proposal to remove and rescind the 

Statement of Policy Regarding the Use 

of Offering Circulars in Connection with 

the Public Distribution of Bank 

Securities (1996 Statement of Policy)? 

Question 4. Are the descriptions of 

the form and content requirements in 

the proposed regulation adequately 

descriptive? Would additional 

information or other references (e.g., to 

other regulations) be helpful? If so, 

what? 

Question 5. Are the procedures 

regarding the confidential treatment of 

registrations statement and 

prospectuses adequate? Would a more 

specific description be helpful? 

Question 6. Is the proposed treatment 

of the securities offerings of State 

savings association subsidiaries 

appropriate? If not, what changes 

should be made? 

IV. Expected Effects 

As previously discussed, the 

proposed rule would rescind Part 390, 

Subpart W which outlines public 

disclosure requirements in connection 

with securities issuances for State 

savings associations, make technical 

amendments to §§ 303.163 and 333.4, 

and establish a new regulation part 335, 

subpart B which outlines regulations 

relating to securities offering disclosures 

for all FDIC-supervised institutions. 

Concurrent with the adoption of these 

changes the FDIC plans to rescind its 

1996 Statement of Policy. These actions 

would affect all FDIC-supervised 

institutions, particularly those that 

engage in issuing securities. According 

to the most recent data, the FDIC 

supervises 3,270 insured depository 

institutions.73 Therefore, the FDIC 

estimates that the proposed rule, if 

adopted, potentially would affect 3,270 

institutions. However, the new 

regulation part 335, subpart A would 

only directly affect FDIC-supervised 

institutions that issue offering 

documents. The FDIC does not currently 

have access to information that would 

facilitate an accurate estimate the 

number of institutions that will issue 

offering documents. To estimate the 

number of FDIC-supervised institutions 

that could be directly affected, staff 

utilized Call Report data to determine 

the average number of cooperative 

banks, cooperative banks with stock 

ownership, mutual commercial banks, 

mutual savings and loan associations, 

mutual savings banks, savings and loan 

associations with stock ownership, 

savings banks with stock ownership, 

and de novo institutions, in existence at 

year-end over the past five years.74

Based on this analysis, the FDIC 

estimates that 376 institutions would be 

directly affected by the rescission of the 

1996 Statement of Policy and 

establishment of the new regulation part 

335, subpart A. 

The proposed rule, if adopted, would 

rescind part 390, subpart W. However, 

this aspect of the proposed rule is 

unlikely to substantively affect FDICsupervised State savings associations. 

According to the most recent data, the 

FDIC supervised 35 State savings 

associations.75 Sections 390.410 through 

390.430 include requirements that 

prescribe definitions, public accountant 

qualifications, and set forth the form 

and content of financial statements 

pertaining to certain securities and their 

related transaction documents. As 

previously discussed, the FDIC’s 

experience has been that FDICsupervised institutions are either 

required to follow SEC disclosure 

regulations by State law or voluntarily 

follow them and other applicable 

regulations as a means to comply with 

the Federal antifraud provisions. 

Although the contents of part 390, 

subpart W being rescinded are more 

detailed than the contents of the 

proposed amended regulation, the new 

regulation part 335, subpart A is 

consistent with both the requirements of 

part 390, subpart W and the guidance in 

the 1996 Statement of Policy. Therefore, 

the FDIC believes that the proposed rule 

is unlikely to substantively affect FDICsupervised State savings associations. 

The establishment of a new 

regulation, part 335, subpart A by the 

proposed rule would pose several broad 

effects on FDIC-supervised institutions. 

As previously discussed, the proposed 

part 335, subpart A is consistent with 

both the requirements of part 390, 

subpart W and the guidance in the 1996 

Statement of Policy. Therefore, the 

primary effect of the proposed rule is to 

codify in regulation what was 

previously guidance for FDICsupervised institutions that are not State 

savings associations. Since the proposed 

rule largely harmonizes the FDIC’s 

regulations with updated laws and 

regulations, the FDIC does not believe 

that the marginal effect of adopting part 

335, subpart A will be significant for 

FDIC-supervised institutions that are 

not State savings associations. This 

aspect of the proposed rule has the 

benefit of simplifying and harmonizing 

FDIC regulations by establishing a 

consistent set of requirements that apply 


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76 If in the future the FDIC determines that 

enforceable regulations are required to ensure safe 

and sound practices at FDIC-supervised 

institutions, then that option will be available. 

77 44 U.S.C. 3501–3521. 

78FDIC Call Reports, June 30, 2020. 

79The SBA defines a small banking organization 

as having $600 million or less in assets, where an 

organization’s ‘‘assets are determined by averaging 

the assets reported on its four quarterly financial 

statements for the preceding year.’’ See 13 CFR 

121.201 (as amended by 84 FR 34261, effective 

August 19, 2019). In its determination, the ‘‘SBA 

counts the receipts, employees, or other measure of 

size of the concern whose size is at issue and all 

of its domestic and foreign affiliates.’’ See 13 CFR 

121.103. Following these regulations, the FDIC uses 

a covered entity’s affiliated and acquired assets, 

averaged over the preceding four quarters, to 

determine whether the covered entity is ‘‘small’’ for 

the purposes of RFA. 

80The proposed rule would not apply to offering 

documents issued by an FDIC-supervised 

institution’s holding company. 

to all FDIC-supervised institutions. 

Further, this aspect of the proposed rule 

is likely to benefit FDIC-supervised 

institutions by treating the securities 

offerings of FDIC-supervised institutions 

more like those of other corporations 

and eliminating a duplicative system of 

regulations and forms. If the proposed 

rule were adopted, the establishment of 

a new regulation part 335, subpart A 

would pose some disclosure costs for 

entities directly affected by the 

proposed rule. However, because part 

335, subpart A is consistent with the 

1996 Statement of Policy, the 

concurrent rescission of the 1996 

Statement of Policy means there is no 

net change in disclosure for FDICsupervised institutions. Finally, this 

aspect of the proposed rule could pose 

regulatory costs for FDIC-supervised 

institutions associated with potentially 

reviewing and revising existing internal 

processes and procedures for 

compliance with applicable disclosure 

regulations. However, because the 

number of directly affected FDICinsured institutions is estimated to be 

relatively small, the FDIC believes at 

any such regulatory costs are also likely 

to be relatively small. 

The technical amendments to 12 CFR 

303.163 and 12 CFR 333.4 are expected 

to clarify those regulations but not pose 

any substantive effect for FDICsupervised institutions. 

Finally, the FDIC believes that the 

proposed rule, if adopted will benefit 

FDIC-supervised institutions and the 

public by clarifying regulations and 

improving the ease of reference. 

V. Alternatives 

The FDIC has considered alternatives 

to the rule but believes that rescinding 

part 390, subpart W, rescinding the 1996 

Statement of Policy, adopting part 335, 

subpart A, and making technical 

amendments to the FDIC’s regulations 

represent the most appropriate option 

for FDIC-supervised institutions. As 

discussed previously, the Dodd-Frank 

Act transferred certain powers, duties, 

and functions formerly performed by 

the OTS to the FDIC. The FDIC’s Board 

reissued and re-designated certain 

transferred regulations from the OTS, 

but noted that it would evaluate them 

and might later incorporate them into 

other FDIC regulations, amend them, or 

rescind them, as appropriate. The FDIC 

has evaluated the existing regulations 

relating to securities offerings of State 

savings associations. The FDIC 

considered the status quo alternative of 

retaining the current regulations and 

1996 Statement of Policy, but chose not 

to do so. If the FDIC did not rescind part 

390, subpart W, then State savings 

associations would be subject to an 

outdated and obsolete set of regulations 

while State nonmember banks would be 

referred to the 1996 Statement of Policy, 

which does not take into account 

subsequent changes in securities laws 

and regulations. Therefore, the FDIC 

believes maintaining the status quo 

would not be an acceptable option, and 

is proposing to rescind part 390, subpart 

W, to rescind the 1996 Statement of 

Policy, to adopt part 335, subpart A to 

incorporate securities offerings 

requirements for issuers, underwriters 

and dealers of securities of FDICsupervised institutions, and to make 

technical amendments to existing 

regulations. 

Another alternative available to the 

FDIC was to apply the regulations in 

part 390, subpart W to all FDICsupervised institutions, but the FDIC 

chose not to do so. The FDIC believes 

it is important for there to be a 

consistent set of securities offering 

disclosure regulations for all FDIC 

supervised institutions that is reflective 

of updated laws and regulations, and 

the regulations in part 390, subpart W 

do not meet this standard. As noted 

previously, based on supervisory 

experience, the FDIC has found that 

FDIC-supervised institutions are either 

required to follow SEC disclosure 

regulations by State law or voluntarily 

follow them and other applicable 

regulations as a means to comply with 

the Federal antifraud provisions.76

Question 7. The FDIC invites 

comments on all aspects of the expected 

effects and alternatives analysis. In 

particular, would the amended 

regulation have any costs or benefits to 

covered entities that the FDIC has not 

identified? 

VI. Regulatory Analysis and Procedure 

A. The Paperwork Reduction Act 

In accordance with the requirements 

of the Paperwork Reduction Act of 1995 

(PRA),77 the FDIC may not conduct or 

sponsor, and the respondent is not 

required to respond to, an information 

collection unless it displays a currently 

valid Office of Management and Budget 

(OMB) control number. 

The rescission and removal from FDIC 

regulations of part 390, subpart W and 

the rescission of the 1996 Statement of 

Policy do not create new or modify 

existing information collection 

requirements. However, certain 

provisions of the proposed rule contain 

‘‘collection of information’’ 

requirements within the meaning of the 

PRA of 1995. In accordance with the 

requirements of the PRA, the FDIC may 

not conduct or sponsor, and the 

respondent is not required to respond 

to, an information collection unless it 

displays a currently valid Office of 

Management and Budget (OMB) control 

number. The OMB control number for 

Securities of State Nonmember Banks 

and State Savings Associations is 3064– 

0030 and will be extended, with 

revision. 

Current Action 

Estimated Annual Number of 

Respondents and Responses 

The set of potential respondents 

include all. State nonmember banks and 

State savings associations. According to 

recent Call Report data, the FDIC 

supervises approximately 3,270 insured 

depository institutions,78 including 

2,492 entities considered small for 

purposes of the Regulatory Flexibility 

Act.79 However, the proposed rule 

would only directly apply to FDICsupervised institutions that issue 

offering documents.80 The FDIC does 

not currently have access to information 

that would enable it to precisely 

estimate the number of FDIC-supervised 

institutions that will issue offering 

documents. To estimate the number of 

respondents to this information 

collection, the FDIC has utilized Call 

Report data to determine the average 

number of cooperative banks, 

cooperative banks with stock 

ownership, mutual commercial banks, 

mutual savings and loan associations, 

mutual savings banks, savings and loan 

associations with stock ownership, 

savings banks with stock ownership, 

and de novo institutions, in existence at 

year-end over the past five years. The 

FDIC estimates that 376 institutions will 

respond to the disclosure requirements 

in the proposed rule. 


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8152 Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Proposed Rules 

81OMB Control No. 3235–0286. 

Charter and ownership type 

Year-end period 

5-yr avg 

12/31/15 12/31/16 12/31/17 12/31/18 12/31/19 

Cooperative Bank .................................... 21 18 17 16 16 ........................

Cooperative Bank—Stock ........................ 10 10 9 8 5 ........................

Mutual Commercial Bank ......................... ........................ ........................ ........................ 12 11 ........................

Mutual Savings & Loan ............................ 37 37 34 22 22 ........................

Mutual Savings Bank ............................... 158 152 142 136 131 ........................

Savings & Loan Association—Stock ....... 11 10 10 14 14 ........................

Stock Savings Bank ................................. 166 163 158 147 137 ........................

De novo Banks ........................................ 1 0 5 8 14 ........................

Total .................................................. 404 390 375 363 350 376.4 

Source: FDIC 

Estimated Time Per Response 

The FDIC estimates that respondents 

will incur 114 labor hours on average, 

complying with the disclosure 

requirements of the proposed rule. The 

FDIC reviewed burden estimates for 

Regulation A 81 and registered offerings 

from the SEC, requirements of the 

proposed rule, and also considered 

information that is provided to the FDIC 

and ERISA and other regulatory 

agencies in the ordinary course of 

business. The FDIC also considered 

experience with other types of filings 

that occur. The FDIC estimates that, of 

the 376 potential filings, 23 percent are 

likely to be associated with Regulation 

D, which may be estimated at 100 hours, 

65 percent are likely to be associated 

with Regulation A, which may be 

estimated at 120 hours, and 10 percent 

are likely to be associated with 

employee stock plans, which may be 

estimated at 100 hours, and finally, 

registered offerings are likely to 

comprise 5 percent rate of the total, 

which may be estimated at 250 hours. 

Thus, of the 376 estimated offerings, 

9,400 hours are likely to be attributed to 

Regulation D, 27,072 to Regulation A, 

1,900 to employee stock plan offerings, 

and 4,700 to registered offerings. The 

total hours of 42,864 divided by 376 

total offerings provides an average labor 

hourly amount per offering of 114. 

Annual Burden Summary 

The estimated PRA compliance labor 

hours for the proposed rule are 

summarized in the table below, which 

lists the estimated annual number of 

responses per respondent and estimated 

time per response, as described above. 

TABLE 1—SUMMARY OF ANNUAL BURDEN AND INTERNAL COST (3064–0030) 

Information collection (IC) description Type of 

burden 

Estimated 

number of 

respondents 

Estimated 

frequency of 

responses 

Estimated 

time per 

response 

Total estimated 

annual burden 

(hrs) 

Part 335, Subpart A—Securities Disclosure ...................... Disclosure 376 1 114 42,864 

As the table below shows, the 

proposed rule would impose an 

estimated average annual PRA burden of 

42,864 hours once the proposed rule has 

been adopted. 

The Estimated Total Annual Burden 

for Revised Information Collection: 

Type of 

burden 

Estimated 

number of 

responses 

Hours per 

response 

Frequency of 

response 

Number of 

responses per 

year 

Estimated 

burden 

Form 3—Initial Statement of Beneficial Ownership.Reporting ........... 58 1 On Occasion ...... 1 58 

Form 4—Statement of Changes in 

Beneficial Ownership.

Reporting ........... 297 0.5 On Occasion ...... 4 594 

Form 5—Annual Statement of Beneficial Ownership.Reporting ........... 69 1 Annual ................ 1 69 

Form 8–A ......................................... Reporting ........... 2 3 On Occasion ...... 2 12 

Form 8–C ........................................ Reporting ........... 2 2 On Occasion ...... 1 4 

Form 8–K ......................................... Reporting ........... 21 2 On Occasion ...... 4 168 

Form 10 ........................................... Reporting ........... 2 215 On Occasion ...... 1 430 

Form 10–C ...................................... Reporting ........... 1 1 On Occasion ...... 1 1 

Form10–K ........................................ Reporting ........... 21 140 Annual ................ 1 2,940 

Form 10–Q ...................................... Reporting ........... 21 100 Quarterly ............ 3 6,300 

Form 12b–25 ................................... Reporting ........... 6 3 On Occasion ...... 1 18 

Form 15 ........................................... Reporting ........... 2 1 On Occasion ...... 1 2 

Form 25 ........................................... Reporting ........... 2 1 On Occasion ...... 1 2 

Schedule 13D .................................. Reporting ........... 2 3 On Occasion ...... 1 6 

Schedule 13E–3 .............................. Reporting ........... 2 3 On Occasion ...... 1 6 

Schedule 13G .................................. Reporting ........... 2 3 On Occasion ...... 1 6 

Schedule 14A .................................. Reporting ........... 21 40 Annual ................ 1 840 

Schedule 14C .................................. Reporting ........... 2 40 On Occasion ...... 1 80 


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82 5 U.S.C. 601, et seq. 

83The SBA defines a small banking organization 

as having $600 million or less in assets, where an 

organization’s ‘‘assets are determined by averaging 

the assets reported on its four quarterly financial 

statements for the preceding year.’’ See 13 CFR 

121.201 (as amended, by 84 FR 34261, effective 

August 19, 2019). ‘‘SBA counts the receipts, 

employees, or other measure of size of the concern 

whose size is at issue and all of its domestic and 

foreign affiliates.’’ See 13 CFR 121.103. Following 

these regulations, the FDIC uses a covered entity’s 

affiliated and acquired assets, averaged over the 

preceding four quarters, to determine whether the 

covered entity is ‘‘small’’ for the purposes of RFA. 

84Call Report data, June 30, 2020. The SBA 

defines a small banking organization as having $600 

million or less in assets, where an organization’s 

‘‘assets are determined by averaging the assets 

reported on its four quarterly financial statements 

for the preceding year.’’ See 13 CFR 121.201 (as 

amended by 84 FR 34261, effective August 19, 

2019). In its determination, the ‘‘SBA counts the 

receipts, employees, or other measure of size of the 

concern whose size is at issue and all of its 

domestic and foreign affiliates.’’ See 13 CFR 

121.103. Following these regulations, the FDIC uses 

a covered entity’s affiliated and acquired assets, 

averaged over the preceding four quarters, to 

determine whether the covered entity is ‘‘small’’ for 

the purposes of RFA. 85Call Report data for the quarter ending 

December 31 in 2015–2019. 

86Call Report data, June 30, 2020. 

Type of 

burden 

Estimated 

number of 

responses 

Hours per 

response 

Frequency of 

response 

Number of 

responses per 

year 

Estimated 

burden 

Schedule 14D–1 (Schedule TO) ..... Reporting ........... 2 5 On Occasion ...... 1 10 

Part 335, Subpart A—Securities 

Disclosure.

Disclosure .......... 376 114 On Occasion ...... 1 42,864 

Totals ........................................ ............................ 535 ........................ ............................ ........................ 54,410 

Comments are invited on: (a) Whether 

the collection of information is 

necessary for the proper performance of 

the FDIC’s functions, including whether 

the information has practical utility; (b) 

The accuracy of the estimates of the 

burden of the information collection, 

including the validity of the 

methodology and assumptions used; (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 

respondents, including through the use 

of automated collection techniques or 

other forms of information technology; 

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 aspects of 

this document that may affect reporting 

or recordkeeping requirements and 

burden estimates should be sent to the 

addresses listed in the ADDRESSES

section of this SUPPLEMENTARY

INFORMATION. A copy of the comments 

may also be submitted to the FDIC 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 202–395–5806, 

Attention, Federal Banking Agency Desk 

Officer. 

B. The Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

requires that, in connection with a 

notice of proposed rulemaking, an 

agency prepare and make available for 

public comment an initial regulatory 

flexibility analysis that describes the 

impact of the proposed rule on small 

entities.82 However, a regulatory 

flexibility analysis is not required if the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities, 

and publishes its certification and a 

short explanatory statement in the 

Federal Register together with the rule. 

The Small Business Administration 

(SBA) has defined ‘‘small entities’’ to 

include banking organizations with total 

assets of less than or equal to $600 

million.83 Generally, the FDIC considers 

a significant effect to be a quantified 

effect in excess of 5 percent of total 

annual salaries and benefits per 

institution, or 2.5 percent of total noninterest expenses. The FDIC believes 

that effects in excess of these thresholds 

typically represent significant effects for 

FDIC-supervised institutions. For the 

reasons provided below, the FDIC 

certifies that the proposed rule, if 

adopted in final form, would not have 

a significant economic impact on a 

substantial number of small banking 

organizations. Accordingly, a regulatory 

flexibility analysis is not required. 

As previously discussed, the 

proposed rule would rescind part 390, 

subpart W, which outlines public 

disclosure requirements in connection 

with securities issuances for State 

savings associations; establish a new 

regulation part 335, subpart A, which 

outlines regulations relating to 

securities offering disclosures for all 

FDIC-supervised institutions; and make 

technical amendments to §§ 303.163 

and 333.4. Concurrent with the 

adoption of these changes the FDIC 

plans to rescind its 1996 Statement of 

Policy. These actions would affect all 

FDIC-supervised institutions, 

particularly those that engage in issuing 

securities. According to the most recent 

data, the FDIC supervises 3,270 insured 

depository institutions, of which 2,492 

are considered small banking 

organizations for the purposes of RFA.84

Therefore, the FDIC estimates that the 

proposed rule, if adopted, potentially 

would affect 2,492 small institutions. 

However, the new regulation in part 

335, subpart A would only directly 

affect small FDIC-supervised 

institutions that issue offering 

documents. The FDIC does not currently 

have access to information that would 

facilitate an accurate estimate the 

number of small institutions that will 

issue offering documents. To estimate 

the number of small FDIC-supervised 

institutions that could be directly 

affected, staff utilized Call Report data 

to determine the average number of 

cooperative banks, cooperative banks 

with stock ownership, mutual 

commercial banks, mutual savings and 

loan associations, mutual savings banks, 

savings and loan associations with stock 

ownership, savings banks with stock 

ownership, and de novo institutions, in 

existence at year-end over the past five 

years.85 Based on this analysis, the FDIC 

estimates that 260 (10.4 percent) small 

FDIC-supervised institutions will be 

directly affected by the rescission of the 

1996 Statement of Policy and 

establishment of the new regulation part 

335, subpart A. 

The proposed rule, if adopted, would 

rescind part 390, subpart W, however 

this aspect of the proposed rule is 

unlikely to substantively affect small 

FDIC-supervised State savings 

associations. According to the most 

recent data, the FDIC supervised 33 

small State savings associations.86

Sections 390.410 through 390.430 

include requirements that prescribe 

definitions, public accountant 

qualifications, and set forth the form 

and content of financial statements 

pertaining to certain securities and their 

related transaction documents. As 

previously discussed, the FDIC’s 

experience has been that FDICsupervised institutions are either 

required to follow SEC disclosure 


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87Public Law 106–102, 113 Stat. 1338, 1471 

(codified at 12 U.S.C. 4809). 

88Public Law 104–208, 110 Stat. 3009 (1996). 

regulations by State law or voluntarily 

follow them and other applicable 

regulations as a means to comply with 

the Federal antifraud provisions. 

Although the contents of part 390, 

subpart W being rescinded are more 

detailed than the contents of the 

proposed regulation, the new regulation 

at part 335, subpart A is consistent with 

both the requirements of part 390, 

subpart W and the 1996 Statement of 

Policy. Therefore, the FDIC believes that 

the proposed rule is unlikely to 

substantively affect small FDICsupervised State savings associations. 

The establishment of a new 

regulation, part 335, subpart A by the 

proposed rule would pose several broad 

effects on small FDIC-supervised 

institutions. As previously discussed, 

the proposed part 335, subpart A is 

consistent with both the requirements of 

part 390, subpart W and the 1996 

Statement of Policy. Therefore, the 

primary effect of the proposed rule is to 

codify in regulation what was 

previously guidance for small FDICsupervised institutions that are not State 

savings associations. Since the proposed 

rule largely harmonizes the FDIC’s 

regulations with updated laws and 

regulations, the FDIC does not believe 

that the marginal effect of adopting part 

335, subpart A will be significant for 

small FDIC-supervised institutions that 

are not small State savings associations. 

However, this aspect of the proposed 

rule is likely to benefit small FDICsupervised institutions by establishing a 

consistent set of requirements that apply 

to all FDIC-supervised institutions. 

Further, this aspect of the proposed rule 

is likely to benefit small FDICsupervised institutions by treating the 

securities offerings of small FDICsupervised institutions more like those 

of other corporations and eliminating a 

duplicative system of regulations and 

forms. If the proposed rule were 

adopted, the establishment of a new 

regulation part 335, subpart A would 

pose some disclosure costs for entities 

directly affected by the proposed rule. 

However, because part 335, subpart A is 

consistent with the 1996 Statement of 

Policy, the concurrent rescission of 1996 

Statement of Policy means there is no 

net change in disclosure for small FDICsupervised institutions. Finally, this 

aspect of the proposed rule could pose 

regulatory costs for small FDICsupervised institutions associated with 

potentially reviewing and revising 

existing internal processes and 

procedures for compliance with 

applicable securities offering disclosure 

regulations. However, because the 

number of directly affected small, FDICinsured institutions is estimated to be 

relatively small, the FDIC believes at 

any such regulatory costs are also likely 

to be relatively small. 

The technical amendments to 

§§ 303.163 and 333.4 are expected to 

clarify those regulations but not pose 

any substantive effect for small FDICsupervised institutions. 

Finally, the FDIC believes that the 

proposed rule, if adopted, will benefit 

small FDIC-supervised institutions and 

the public by clarifying regulations and 

improving the ease of reference. 

Based on the information above, the 

FDIC certifies that the proposed rule 

would not have a significant economic 

impact on a substantial number of small 

entities. 

Question 8. The FDIC invites 

comments on all aspects of the 

supporting information provided in this 

RFA section. In particular, would this 

rule have any significant effects on 

small entities that the FDIC has not 

identified? 

C. Plain Language 

Section 722 of the Gramm-LeachBliley Act 87 requires each Federal 

banking agency to use plain language in 

all of its proposed and final rules 

published after January 1, 2000. As a 

Federal banking agency subject to the 

provisions of this section, the FDIC has 

sought to present the proposed rule to 

rescind part 390, subpart W in a simple 

and straightforward manner. 

Question 8. The FDIC invites 

comments on whether the proposal is 

clearly stated and effectively organized, 

and how the FDIC might make the 

proposal easier to understand. 

D. The Economic Growth and 

Regulatory Paperwork Reduction Act 

Under section 2222 of the Economic 

Growth and Regulatory Paperwork 

Reduction Act of 1996 (EGRPRA), the 

FDIC is required to review all of its 

regulations, at least once every 10 years, 

in order to identify any outdated or 

otherwise unnecessary regulations 

imposed on insured institutions.88 The 

FDIC, along with the other Federal 

banking agencies, submitted a Joint 

Report to Congress on March 21, 2017, 

(EGRPRA Report) discussing how the 

review was conducted, what has been 

done to date to address regulatory 

burden, and further measures that will 

be taken to address issues that were 

identified. As noted in the EGRPRA 

Report, the FDIC is continuing to 

streamline and clarify its regulations 

through the OTS rule integration 

process. By removing outdated or 

unnecessary regulations, such as part 

390, subpart W, this proposal 

complements other actions the FDIC has 

taken, separately and with the other 

Federal banking agencies, to further the 

EGRPRA mandate. 

List of Subjects 

12 CFR Part 303 

Administrative practice and 

procedure, Bank deposit insurance, 

Banks, banking, Reporting and 

recordkeeping requirements, Savings 

associations. 

12 CFR Part 333 

Banks, banking. 

12 CFR Part 335 

Accounting, Banks, banking, 

Confidential business information, 

Reporting and recordkeeping 

requirements, Securities. 

12 CFR Part 390 

Administrative practice and 

procedure, Advertising, Aged, Civil 

rights, Conflict of interests, Credit, 

Crime, Equal employment opportunity, 

Fair housing, Government employees, 

Individuals with disabilities, Reporting 

and recordkeeping requirements, 

Savings associations. 

Authority and Issuance 

For the reasons set forth in the 

preamble, the Federal Deposit Insurance 

Corporation proposes to amend 12 CFR 

parts 303, 333, 335, and 390 as follows: 

PART 303—FILING PROCEDURES 

■ 1. The authority citation for part 303 

continues to read as follows: 

Authority: 12 U.S.C. 378, 478, 1463, 1467a, 

1813, 1815, 1817, 1818, 1819 (Seventh and 

Tenth), 1820, 1823, 1828, 1831i, 1831e, 

1831o, 1831p–1, 1831w, 1831z, 1835a, 

1843(l), 3104, 3105, 3108, 3207, 5412; 15 

U.S.C. 1601–1607. 

■ 2. Amend § 303.163 by revising 

paragraph (b) to read as follows: 

§ 303.163 Processing. 

* * * * * 

(b) Additional considerations. (1) In 

reviewing the notice and other materials 

submitted under this subpart, the FDIC 

will take into account the extent to 

which the proposed conversion 

transaction conforms with the various 

provisions of the mutual-to-stock 

conversion regulations of the Office of 

Comptroller of the Currency (OCC) (12 

CFR part 192), as currently in effect at 

the time the notice is submitted. Any 


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non-conformity with those provisions 

will be closely reviewed. 

(2) Conformity with the OCC 

requirements will not be sufficient for 

FDIC regulatory purposes if the FDIC 

determines that the proposed 

conversion transaction would pose a 

risk to the bank’s safety or soundness, 

violate any law or regulation, or present 

a breach of fiduciary duty. 

* * * * * 

PART 333—EXTENSION OF 

CORPORATE POWERS 

■ 3. The authority citation for part 333 

continues to read as follows: 

Authority: 12 U.S.C. 1816; 1817(i); 1818; 

1819(a) (Seventh, Eighth, and Tenth), 1828, 

1828(m), 1831p–1(c), 5414 and 5415. 

■ 4. Amend § 333.4 by revising 

paragraph (e) introductory text to read 

as follows: 

§ 333.4 Conversions from mutual to stock 

form. 

* * * * * 

(e) Stock benefit plan limitations. The 

FDIC will presume that a stock option 

plan or management or employee stock 

benefit plan that does not conform with 

the applicable percentage limitations of 

the regulations issued by the Office of 

the Comptroller of the Currency 

constitutes excessive insider benefits 

and thereby evidences a breach of the 

board of directors’ or trustees’ fiduciary 

responsibility. In addition, no converted 

insured mutual state savings bank shall, 

for one year from the date of the 

conversion, implement a stock option 

plan or management or employee stock 

benefit plan, other than a tax-qualified 

employee stock ownership plan, unless 

each of the following requirements is 

met: 

* * * * * 

PART 335—SECURITIES OF STATE 

NONMEMBER BANKS AND STATE 

SAVINGS ASSOCIATIONS 

■ 5. The authority citation for part 335 

is revised to read as follows: 

Authority: 12 U.S.C. 1819. 

Subpart A also issued under 12 U.S.C. 

1816, 1818, 1828, 1831o, 1831p–1, 1462a, 

1463, 1464, 5412. 

Subpart B also issued under 15 U.S.C. 78j– 

1, 78l(i), 78m, 78n, 78p, 78w, 5412, 5414, 

5415, 7241, 7242, 7243, 7244, 7261, 7262, 

7264, and 7265. 

■ 6. Add subpart A to read as follows: 

Subpart A—Securities Disclosure 

Sec. 

335.1 Purpose, scope, and applicability. 

335.2 Definitions. 

335.3 Registration statement and prospectus 

requirements. 

335.4 Exemptions from registration 

statement and prospectus requirements. 

335.5 Sales practices regarding securities 

issuances. 

335.6 Securities legends. 

335.7 Filing procedures and confidentiality. 

Subpart A—Securities Disclosure 

§ 335.1 Purpose, scope, and applicability. 

(a) Purpose and scope. This subpart 

sets forth rules for filing with the FDIC 

registration statements, prospectuses, 

and other offering documents related to 

offers and sales of FDIC-supervised 

institution securities and the securities 

of the subsidiaries of State savings 

associations by issuers, underwriters, 

and dealers. 

(b) Applicability. (1) This subpart is 

applicable to the offers or sales of 

securities of FDIC-supervised 

institutions in connection with: 

(i) Organizational efforts pursuant to 

12 U.S.C. 1815 and subject to the 

requirements of 12 CFR part 303, 

subpart B; 

(ii) A capital raise by an FDICsupervised institution subject to an 

enforcement action pursuant to 12 

U.S.C. 1818 or a capital restoration plan 

pursuant to 12 U.S.C. 1831o and 12 CFR 

part 324; 

(iii) A mutual state-chartered bank 

conversion from mutual to stock form 

pursuant to 12 CFR 333.4 and part 303, 

subpart I; and 

(iv) A mutual state savings association 

conversion from mutual to stock form 

pursuant to 12 CFR part 192. 

(2) This subpart applies also to a 

security offering by a subsidiary of any 

State savings association described in 

paragraphs (b)(1)(i) through (iv) of this 

section. 

(c) Cross references to securities 

regulations—(1) Securities offerings 

generally. This subpart generally cross 

references the regulations of the 

Securities and Exchange Commission as 

these regulations are issued, revised, or 

updated from time to time under the 

Securities Act of 1933, as amended (15 

U.S.C. 77a et seq.), except as provided 

otherwise in this subpart. 

(2) State savings associations’ mutualto-stock conversion securities offerings. 

The offers or sales of the securities of 

state savings association in connection 

with a mutual-to stock conversion are 

subject to the rules set forth by the 

Office of the Comptroller of the 

Currency at 12 CFR part 192 for the 

purposes of this subpart. 

(d) Rule of construction. Any 

references to the regulations issued by 

another agency include such regulations 

as they may be amended or replaced 

from time to time. 

§ 335.2 Definitions. 

Unless otherwise defined in this 

subpart, definitions shall have the 

meaning given to them in the Securities 

Act and the regulations of the SEC. 

For the purposes of this subpart, the 

following definitions apply: 

FDIC-supervised institution means 

any state nonmember bank or state 

savings association. 

Issue means the same as in section 

2(a)(4) of the Securities Act (15 U.S.C. 

77b(a)(4)). 

Offering documents means the 

documents described in rules 252–254 

of the SEC’s Regulation A (17 CFR 

230.252). 

Prospectus means an offering 

document that includes the information 

required by section 10(a) of the 

Securities Act (15 U.S.C. 77j(a)). 

Registration statement means a filing 

that includes the prospectus and other 

information required by section 7 of the 

Securities Act (15 U.S.C. 77g). 

Sale, sell, offer to sell, offer for sale, 

and offer mean the same as in section 

2(a)(3) of the Securities Act (15 U.S.C. 

77b(a)(3)). 

SEC or the Commission means the 

Securities and Exchange Commission. 

When used in the rules, regulations, or 

forms of the SEC referred to in this part, 

the terms SEC, Commission, or 

Commissioner shall be deemed to refer 

to the FDIC. 

Security means the same as in section 

2(a)(1) of the Securities Act (15 U.S.C. 

77b(a)(2)). 

Securities Act means the Securities 

Act of 1933, as amended (15 U.S.C. 77a– 

77aa). 

§ 335.3 Registration statement and 

prospectus requirements. 

(a) Registration statement filing. An 

FDIC-supervised institution shall file 

with the appropriate FDIC regional 

office a registration statement, including 

any prospectus, that conforms to the 

registration requirements of section 3 of 

the Securities Act (15 U.S.C. 77c), as if 

the FDIC-supervised institution was not 

otherwise exempt from such registration 

requirements. 

(b) Registration and prospectus 

requirements. Except as provided in 

§ 335.4, registration statements, 

prospectuses, and offering documents 

filed by an FDIC-supervised institution 

must conform to the form and content 

requirements of 17 CFR 230.400 through 

230.498A (SEC Regulation C), except to 

the extent those requirements conflict 

with the specific requirements of this 

subpart. 

(c) Disclosure requirements. 

Disclosures included in registration 

statements, prospectuses, and offering 


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documents filed by an FDIC-supervised 

institution must conform to 17 CFR part 

229 (SEC Regulation S–K). 

(d) Form and content of financial 

statements. Financial statements 

included in registration statements, 

prospectuses, and offering documents 

filed by an FDIC-supervised institution 

must conform to 17 CFR part 210 

(Regulation S–X). 

§ 335.4 Exemptions from registration 

statement and prospectus requirements. 

(a) Exemptions. The securities 

offering of an FDIC-supervised 

institution is exempt from the 

registration statement and prospectus 

requirements of 17 CFR 230.400 through 

230.498A (SEC Regulation C) if the 

securities offering meets the 

requirements of one of the following: 

(1) 17 CFR 230.251 through 230.263 

(SEC Regulation A); 

(2) 17 CFR 230.500 through 230.508 

(SEC Regulation D); 

(3) 17 CFR 230.701 (SEC Rule 701); 

(4) 17 CFR 230.144 (Rule 144) and 17 

CFR 230.144A (Rule 144A); 

(5) Offers and sales of securities in 

connection with a mutual-to-stock 

conversion pursuant to 12 CFR part 192; 

or 

(6) Offers and sales in connection 

with the dissolution of the FDICsupervised institution’s holding 

company, provided all of the following 

requirements are met: 

(i) The offer and sale of securities 

occurs solely as part of a dissolution in 

which the security holders exchange 

shares of securities in the FDICsupervised institution’s holding 

company (that had no significant assets 

other than securities of the FDIC 

supervised institution) for the FDICsupervised institution’s securities; 

(ii) The FDIC-supervised institution’s 

holding company’s security holders 

receive, after the dissolution, 

substantially the same proportional 

share interests in the FDIC-supervised 

institution securities as they held in the 

holding company; 

(iii) The rights and interests of the 

FDIC-supervised institution’s holding 

company’s security holders in the FDICsupervised institution are substantially 

the same as those they had in the 

holding company prior to the 

transaction; and 

(iv) The FDIC-supervised institution 

has substantially the same assets and 

liabilities as the FDIC-supervised 

institution’s holding company had on a 

consolidated basis prior to the 

transaction. 

(b) Offering documents. An FDICsupervised institution subject to this 

subpart, the securities offering of which 

is exempt from registration statement 

and prospectus requirements, must 

provide the FDIC with an offering 

document that complies with the form 

and content requirements of the 

exemption upon which the FDICsupervised institution relies. 

§ 335.5 Sales practices regarding 

securities issuances. 

(a) Sales on the premises of an FDICsupervised institution. An FDICsupervised institution must comply 

with the following restrictions when 

selling securities on the institution’s 

premises: 

(1) All sales must be conducted in a 

segregated area of the FDIC-supervised 

institution’s offices, whenever possible; 

(2) Offers and sales must be 

conducted by authorized personnel, 

excluding tellers, in places where 

deposits are not ordinarily received; 

(3) The FDIC-supervised institution 

must obtain a signed and dated 

certification from the purchaser 

confirming that the purchaser has read 

and understands the disclosures set out 

in the offering document and the 

subscription order form; 

(4) The certification must contain a 

separate place where a purchaser can 

indicate, by initialing or by comparable 

method, that the purchaser 

acknowledges that the securities being 

sold are not covered by FDIC deposit 

insurance; and 

(b) Online sales. If an FDICsupervised institution offers securities 

online, the FDIC-supervised institution 

must include in the FDIC-supervised 

institution’s subscription order form the 

legends set forth in § 335.6. 

§ 335.6 Securities legends. 

(a) A securities offering must include 

the following legends in a prominent 

place in capital letters printed in 

boldfaced type: 

THESE SECURITIES ARE NOT 

DEPOSITS. THESE SECURITIES ARE 

NOT INSURED BY THE FEDERAL 

DEPOSIT INSURANCE 

CORPORATION OR ANY OTHER 

AGENCY, AND ARE SUBJECT TO 

INVESTMENT RISK, INCLUDING THE 

POSSIBLE LOSS OF PRINCIPAL. 

THESE SECURITIES HAVE NOT BEEN 

APPROVED BY THE FEDERAL 

DEPOSIT INSURANCE 

CORPORATION NOR HAS THE 

FEDERAL DEPOSIT INSURANCE 

CORPORATION PASSED ON THE 

ADEQUACY OR ACCURACY OF THE 

REGISTRATION STATEMENT AND 

PROSPECTUS. ANY 

REPRESENTATION TO THE 

CONTRARY IS UNLAWFUL. 

(b) A debt securities offering must 

include the following legend in a 

prominent place in capital letters 

printed in boldfaced type: 

THESE DEBT OBLIGATIONS ARE 

SUBORDINATE TO THE CLAIMS OF 

DEPOSITORS AND OTHER 

CREDITORS AS MORE FULLY 

DESCRIBED IN THE REGISTRATION 

STATEMENT AND PROSPECTUS. 

§ 335.7 Filing procedures and 

confidentiality. 

(a) Filings. (1) An FDIC-supervised 

institution must file an offering 

document prior to the commencement 

of offering securities for offer or sale as 

follows: 

(i) For offerings described in 

§ 335.1(b)(1)(i), together with the 

application for deposit insurance; 

(ii) For offerings described in 

§ 335.1(b)(1)(ii), together with the 

capital restoration plan or otherwise as 

required by an Order of the FDIC; 

(iii) For offerings described in 

§ 335.1(b)(1)(iii), together with the 

notice and materials required by 12 CFR 

303.161; and 

(iv) For offerings described in 

§ 335.1(b)(1)(iv), together with the forms 

required by 12 CFR 192.5. 

(2) Unless otherwise indicated in this 

subpart, filings should be submitted to 

the appropriate regional office. 

Instructions for submitting filings may 

be obtained from the appropriate FDIC 

regional director. The FDIC may require 

the applicant to submit additional 

information. 

(3) The FDIC may request that an 

FDIC-supervised institution provide 

additional information in, or otherwise 

revise, a registration statement, 

prospectus, or other offering document, 

consistent with the requirements of the 

filings described in § 335.1(b). An FDICsupervised institution may offer or sell 

securities in a transaction subject to this 

subpart when it receives a written 

statement from the FDIC to the effect 

that no additional information or 

changes are required. 

(b) Confidentiality. FDIC-supervised 

institutions should contact the 

appropriate FDIC regional office 

regarding materials such institutions 

wish to remain confidential. 

§ § 335.101 through 335.801 [Designated 

as Subpart B] 

■ 7. Designate §§ 335.101 through 

335.801 as subpart B and add a heading 

for newly designated subpart B to read 

as follows: 

Subpart B—Securities of State Nonmember 

Banks and State Savings Associations 

Sec. 


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335.101 Scope of part, authority and OMB 

control number. 

335.111 Forms and schedules. 

335.121 Listing standards related to audit 

committees. 

335.201 Securities exempted from 

registration. 

335.211 Registration and reporting. 

335.221 Forms for registration of securities 

and cross reference to Regulation FD 

(Fair Disclosure). 

335.231 Certification, suspension of 

trading, and removal from listing by 

exchanges. 

335.241 Unlisted trading. 

335.251 Forms for notification of action 

taken by national securities exchanges. 

335.261 Exemptions, terminations, and 

definitions. 

335.301 Reports of issuers of securities 

registered pursuant to section 12. 

335.311 Forms for annual, quarterly, 

current, and other reports of issuers. 

335.321 Maintenance of records and 

issuer’s representations in connection 

with required reports. 

335.331 Acquisition statements, acquisition 

of securities by issuers, and other 

matters. 

335.401 Solicitations of proxies. 

335.501 Tender offers. 

335.601 Requirements of section 16 of the 

Securities Exchange Act of 1934. 

335.611 Initial statement of beneficial 

ownership of securities (Form 3). 

335.612 Statement of changes in beneficial 

ownership of securities (Form 4). 

335.613 Annual statement of beneficial 

ownership of securities (Form 5). 

335.701 Filing requirements, public 

reference, and confidentiality. 

335.801 Inapplicable SEC regulations; FDIC 

substituted regulations; additional 

information. 

Subpart B [Amended] 

■ 8. Amend newly designated subpart B 

by: 

■ a. Removing ‘‘Part 335’’ and adding 

‘‘This subpart’’ in its place wherever it 

appears; 

■ b. Removing ‘‘This part’’ and adding 

‘‘This subpart’’ in its place wherever it 

appears; and 

■ c. Removing ‘‘this part’’ and adding 

‘‘this subpart’’ in its place wherever it 

appears. 

PART 390—REGULATIONS 

TRANSFERRED FROM THE OFFICE OF 

THRIFT SUPERVISION 

■ 9. The authority citation for part 390 

continues to read as follows: 

Authority: 12 U.S.C. 1819. 

* * * * * 

Subpart W—[Removed and Reserved] 

■ 10. Remove and reserve subpart W, 

consisting of §§ 390.410 through 

390.430. 

Federal Deposit Insurance Corporation. 

By order of the Board of Directors. 

Dated at Washington, DC, on or about 

January 19, 2021. 

James P. Sheesley, 

Assistant Executive Secretary. 

[FR Doc. 2021–02028 Filed 2–3–21; 8:45 am] 

BILLING CODE 6714–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2021–0033] 

RIN 1625–AA00 

Safety Zone; Corpus Christi Ship 

Channel, Corpus Christi, TX 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard is proposing 

to establish a temporary safety zone for 

all navigable waters of Corpus Christi 

Bay and the Corpus Christi Ship 

Channel. This action is necessary to 

provide for the safety of life on these 

navigable waters near the Corpus Christi 

Bayfront, during an airshow taking 

place from April 29, 2021 through May 

2, 2021. This proposed rulemaking 

would prohibit persons and vessels 

from being in the safety zone unless 

authorized by the Captain of the Port 

Sector Corpus Christi or a designated 

representative. We invite your 

comments on this proposed rulemaking. 

DATES: Comments and related material 

must be received by the Coast Guard on 

or before April 5, 2021. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2021–0033 using the Federal 

eRulemaking Portal at https://

www.regulations.gov. See the ‘‘Public 

Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section for 

further instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this proposed 

rulemaking, call or email LCDR 

Margaret Brown, Waterways 

Management Division, Sector Corpus 

Christi, U.S. Coast Guard, email 

Margaret.A.Brown@uscg.mil; telephone 

361–244–4784. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background, Purpose, and Legal 

Basis 

On November 20, 2020, Schultz 

Airshows notified the Coast Guard that 

the Buccaneer Commission will host the 

Wings Over South Texas Airshow daily, 

11:30 a.m. to 4:30 p.m. from April 29, 

2021 through May 2, 2021. The 

Airshow’s aerobatic box will take place 

over Corpus Christi Bay within a 

rectangular zone defined by the 

following coordinates; 27°49′2.78′′ N, 

097°23′16.1′′ W; 27°47′3.69′′ N, 

097°23′14.62′′ W; 27°49′2.73′′ N, 

097°22′42.97′′ W; 27°47′5.46′′ N, 

097°22′41.02′′ W; and back to 

27°49′2.78′′ N, 097°23′16.1′′ W. The 

Captain of the Port Sector Corpus 

Christi (COTP) has determined that 

potential hazards associated with the 

Airshow would be a safety concern for 

anyone within the defined area. 

The purpose of this rulemaking is to 

ensure the safety of vessels and the 

navigable waters within the aerobatic 

box before, during, and after the 

scheduled event. The Coast Guard is 

proposing this rulemaking under 

authority in 46 U.S.C. 70034 (previously 

33 U.S.C. 1231). 

III. Discussion of Proposed Rule 

The COTP is proposing to establish a 

safety zone daily from 11:30 a.m. to 4:30 

p.m. from April 29, 2021 through May 

2, 2021. The safety zone would cover all 

navigable waters within a rectangular 

zone defined by the following 

coordinates; 27°49′2.78′′ N, 097°23′16.1′′ 

W; 27°47′3.69′′ N, 097°23′14.62′′ W; 

27°49′2.73′′ N, 097°22′42.97′′ W; 

27°47′5.46′′ N, 097°22′41.02′′ W; and 

back to 27°49′2.78′′ N, 097°23′16.1′′ W. 

The duration of the zone is intended to 

ensure the safety of vessels and these 

navigable waters before, during, and 

after the scheduled 11:30 a.m. to 4:30 

p.m. airshow. No vessel or person 

would be permitted to enter the safety 

zone without obtaining permission from 

the COTP or a designated 

representative. The regulatory text we 

are proposing appears at the end of this 

document. 

IV. Regulatory Analyses 

We developed this proposed rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders, and we discuss First 

Amendment rights of protestors. 


jbell on DSKJLSW7X2PROD with PROPOSALS