This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

33415 

Vol. 87, No. 106 

Thursday, June 2, 2022 

1As used in this regulation, the term ‘‘consumer’’ 

is broadly defined to encompass all current and 

potential depositors, including natural persons, 

organizations, corporate entities, and governmental 

bodies. 

2Under Federal law, it is also criminal offense to 

misuse the FDIC name or make false representations 

regarding deposit insurance. See 18 U.S.C. 709. 

3 12 U.S.C. 1828(a)(4)(C)–(D). 

4 85 FR 10997 (Feb. 26, 2020). 

5 85 FR 14678 (Mar. 13, 2020). 

6 86 FR 18528 (April 9, 2021). 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 328 

RIN 3064–AF71 

False Advertising, Misrepresentation 

of Insured Status, and Misuse of the 

FDIC’s Name or Logo 

AGENCY: Federal Deposit Insurance 

Corporation. 

ACTION: Final rule. 

SUMMARY: The Federal Deposit 

Insurance Corporation is adopting a 

final rule to implement section 18(a)(4) 

of the Federal Deposit Insurance Act. 

The final rule establishes the process by 

which the Federal Deposit Insurance 

Corporation will identify and 

investigate conduct that may violate 

section 18(a)(4) of the Federal Deposit 

Insurance Act, the standards under 

which such conduct will be evaluated, 

and the procedures which the Federal 

Deposit Insurance Corporation will 

follow when formally and informally 

enforcing the provisions of section 

18(a)(4) of the Federal Deposit Insurance 

Act. 

DATES: The rule is effective on July 5, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

Richard M. Schwartz, Counsel, Legal 

Division, 202–898–7424, rischwartz@

FDIC.gov; Michael P. Farrell, Counsel, 

Legal Division, 202–898–3853, 

mfarrell@FDIC.gov, Federal Deposit 

Insurance Corporation, 550 17th Street 

NW, Washington, DC 20429. 

SUPPLEMENTARY INFORMATION: 

I. Policy Objectives 

Section 18(a)(4) of the Federal Deposit 

Insurance Act, 12 U.S.C. 1828(a)(4), 

(Section 18(a)(4)) prohibits any person 

from misusing the name or logo of the 

Federal Deposit Insurance Corporation 

(FDIC) or from engaging in false 

advertising or making knowing 

misrepresentations about deposit 

insurance. The FDIC has observed an 

increasing number of instances where 

financial services providers or other 

entities or individuals have misused the 

FDIC’s name or logo or have made false 

or misleading representations about 

deposit insurance. To provide 

transparency into how the FDIC will 

address these and similar concerns, the 

FDIC is adopting regulations to further 

clarify its procedures for identifying, 

investigating, and where necessary 

taking formal and informal action to 

address potential violations of Section 

18(a)(4). The regulations also establish a 

point-of-contact for receiving 

complaints and inquiries about 

potential misrepresentations regarding 

deposit insurance. Although the FDIC is 

not required to promulgate regulations 

to implement section 18(a)(4), the FDIC 

nonetheless believes that the final rule 

establishes a more transparent process 

that will benefit all parties and 

promotes stability and confidence in 

FDIC deposit insurance and the nation’s 

financial system. 

II. Background 

The FDIC has steadfastly and 

proactively sought to protect 

consumers 1 by limiting the use of the 

FDIC’s name, seal, and logo to insured 

depository institutions (IDIs) and 

preventing false and misleading 

representations about the manner and 

extent of FDIC deposit insurance 

(deposit insurance). Section 18(a)(4) of 

the Federal Deposit Insurance Act (FDI 

Act), 12 U.S.C. 1828(a)(4) (Section 

18(a)(4)), prohibits any person from 

engaging in false advertising by 

misusing the name or logo of the FDIC 

or from making knowing 

misrepresentations about the existence 

of or the extent or manner of deposit 

insurance.2 Section 18(a)(4) provides 

the FDIC independent authority to 

investigate and take administrative 

enforcement actions, including the 

power to issue cease and desist orders 

and impose civil money penalties, 

against any person who misuses the 

FDIC name or logo or makes 

misrepresentations about deposit 

insurance.3

Although the FDIC has broad 

statutory authority in this area, the FDIC 

has never issued specific regulations 

regarding false representations related to 

deposit insurance or the misuse of the 

FDIC’s name or logo. Recently, the FDIC 

has observed an increasing number of 

instances where financial service 

providers or other entities or 

individuals have misused the FDIC’s 

name or logo or have made false or 

misleading representations about 

deposit insurance. Therefore, the FDIC 

adopts the following rule, which 

provides certain procedures the FDIC 

will follow for identifying, investigating, 

and taking formal and informal action to 

address potential violations of Section 

18(a)(4). The rule also provides for an 

established point-of-contact responsible 

for receiving complaints about potential 

violations of Section 18(a)(4) and 

responding to inquiries about deposit 

insurance coverage representations. 

III. Requests for Information, The 

Proposed Rule, and Comments 

Received 

Requests for Information 

On February 26, 2020, the FDIC 

published a Request for Information 

(2020 RFI) related to potential 

modernization of its signage and 

advertising rules set out in part 328 of 

the FDIC regulations.4 Some of the 

questions in the 2020 RFI related to the 

deposit insurance misrepresentations 

addressed in this final rule. The 

comment period for the 2020 RFI was 

extended on March 13, 2020,5 but 

efforts to modify the rules under part 

328 of the FDIC regulations were 

postponed in light of the COVID–19 

national emergency. Subsequently, the 

FDIC published a new Request for 

Information in the Federal Register on 

April 9, 2021 (2021 RFI) which focused 

on soliciting information on the FDIC’s 

advertising requirements applicable to 

IDIs and related topics, and removed 

specific questions relating to 

misrepresentations and misuse.6

The Proposed Rule 

On May 10, 2021, the FDIC published 

a notice of proposed rulemaking (NPR) 


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7 86 FR 24770 (May 10, 2021). 

8Of the comments received, some comments 

were identical. 

9The draft regulation defined the term ‘‘IAP’’ to 

mean an ‘‘institution-affiliated party’’ under section 

3(u) of the FDI Act, 12 U.S.C. 1813(u). As discussed 

more fully below, the term ‘‘known IAP’’ was not 

defined in the proposed regulation. 

10The ‘‘one-click’’ rule is found in the official 

interpretation to Regulation Z and Regulation DD 

and deals with how certain advertising disclosures 

may be provided. See 12 CFR part 1026, supp. I, 

Comment 16(c)(1)–2, and 12 CFR part 1030, supp. 

I, Comment 8(a)–9. Generally, under these 

regulations, when a triggering term is mentioned in 

an advertisement, additional disclosures may be 

required. In the case of electronic advertisements, 

these regulations allow the additional disclosures to 

be located on a separate web page, so long as the 

triggering term is accompanied by a link that 

directly takes the consumer to the additional 

information. 

11The term ‘‘Deposit Placement Network’’ is a 

defined term under section 29(g) of the FDI Act (12 

U.S.C. 1831f(g)) in relation to brokered deposits. 

Although the commenters used the term ‘‘deposit 

placement networks’’ in their comment letters, their 

comments appeared intended to apply more 

broadly to any deposit network administered by a 

non-bank entity (referred to here as a ‘‘deposit 

network sponsor’’) that, through a network of IDIs 

with which it has business relationships, arranges 

or facilitates the placement of deposits. To 

distinguish these broader networks from ‘‘Deposit 

Placement Networks,’’ as described in section 29(g) 

of the FDI Act, the FDIC will refer to the former as 

merely ‘‘deposit networks.’’ 

to implement Section 18(a)(4).7 The 

NPR proposed a regulation 

redesignating the existing regulations in 

part 328 as subpart A to part 328 and 

establishing a new subpart B to part 328, 

entitled ‘‘False Advertising, 

Misrepresentation of Insured Status, and 

Misuse of the FDIC’s Name or Logo.’’ 

The proposed subpart described certain 

procedures by which the FDIC would 

identify and investigate conduct that 

may violate Section 18(a)(4), the 

standards under which such conduct 

would be evaluated, and the procedures 

which the FDIC would follow when 

formally and informally enforcing the 

provisions of Section 18(a)(4). 

Comments on the Proposed Rule 

A. Overview 

The FDIC issued the NPR on May 10, 

2021, with a 60-day comment period. In 

the NPR, the FDIC also stated that it 

would consider any relevant comments 

submitted in response to the 2021 RFI. 

The FDIC received nineteen comments 

in response to the NPR.8 Commenters 

included trade associations, insured 

depository institutions, advocacy 

groups, and other interested parties. All 

of the commenters expressed support 

for the proposed rule. Some noted that 

they have seen similar trends of misuse 

in the industry that the proposal is 

meant to combat. Several commenters 

applauded the FDIC’s efforts to prevent 

false and misleading statements 

regarding deposit insurance and 

promote public confidence in FDICinsured institutions. Additionally, 

commenters stated that the proposal 

sufficiently identifies situations that 

present potential risks related to false or 

misleading representations regarding 

deposit insurance coverage and the 

misuse of the FDIC’s name or logo. 

Further, commenters stated that the 

proposed informal and formal 

enforcement processes were adequate. 

Additionally, the FDIC received two 

comments in response to the 2021 RFI 

that contained comments relevant to 

this rulemaking, one from a trade 

association and one from an IDI. These 

comments generally echoed the FDIC’s 

concerns about consumers’ ability to 

understand whether and how funds 

placed with non-IDIs are insured. 

B. Requests for Clarification 

Many commenters requested certain 

changes to clarify specific elements of 

the proposed rule. For example, a 

number of commenters asked that the 

FDIC clarify that IDIs have the authority 

to submit complaints of possible 

violations. Other commenters requested 

that the FDIC define certain terms in the 

proposed rule. For example, in regard to 

12 CFR 308.147, one commenter 

requested the FDIC to clarify the 

meaning of the phrase ‘‘a known IAP’’ 

of an IDI.9

Additionally, in reviewing the 

comments, the FDIC noted that 

commenters used differing terms to refer 

to those impacted by potential 

misrepresentations. Some commenters 

referred to these as ‘‘consumers.’’ Others 

referred to them as ‘‘consumers or 

depositors.’’ Others used the terms, 

‘‘depositors or prospective depositors.’’ 

Finally, one commenter noted that 

‘‘individuals . . . local governments, 

charitable organizations, corporations,’’ 

and others could be impacted. 

C. Suggested Alternatives 

Commenters also suggested the FDIC 

take additional actions beyond the 

proposal. For example, commenters 

suggested the FDIC adopt a ‘‘one-click 

rule’’ for social media and internet 

advertising,10 adopt standard disclosure 

language, create a closed database 

accessible to IDIs that lists IAPs who 

have violated these regulations, and 

adopt a voluntary public register of 

FDIC-insured products. Additionally, 

one commenter suggested the FDIC 

implement an information sharing 

mechanism designed to notify states of 

any formal or informal actions taken 

against an individual or entity in their 

jurisdiction. Additionally, some 

comments submitted in response to the 

NPR and the 2021 RFI suggested that the 

FDIC mandate that non-IDIs make 

certain affirmative statements regarding 

deposit insurance, including affirmative 

statements that non-insured products 

are not insured and statements 

explaining how and when deposits 

placed with IDIs by third parties are 

insured. 

D. Section 328.102(b)(3)(ii) 

The FDIC received ten comments 

related to proposed § 328.102(b)(3)(ii), 

which provided that, if a non-bank 

entity makes claims regarding the 

insured-status of its products, the failure 

to identify the name(s) of the IDI(s) 

which would be receiving deposits 

would be a material omission in 

violation of the rule. The commenters, 

mostly trade associations, recommended 

that the FDIC clarify the provision 

because they argued it could constrain 

the dissemination of information by and 

about so-called ‘‘deposit placement 

networks.’’ 11 They explained that a 

deposit network may involve many IDIs, 

making it difficult to name the specific 

IDI(s) in the network that will receive a 

deposit until the deposit is placed. The 

commenters urged the FDIC to modify 

or remove this requirement in the final 

rule. 

E. Hybrid Products 

Two commenters requested that the 

FDIC clarify the advertising and 

marketing requirements applicable to 

non-deposit and hybrid products. One 

commenter asked in particular how the 

proposed rule and the 2020 RFI would 

work together, and how the FDIC will 

consider and investigate complaints and 

statements regarding hybrid products. 

Responses to Comments 

With respect to requests that the FDIC 

clarify that IDIs can submit complaints 

under the proposed rule, the FDIC 

reviewed the language of proposed 

§ 328.103, which allows any ‘‘person’’ to 

submit complaints, and the definition of 

‘‘person’’ under proposed § 328.101, 

which specifically includes Regulated 

Institutions like IDIs. The FDIC believes 

these provisions make it sufficiently 

clear that IDIs can submit complaints, 

and therefore is not making any changes 

to these sections of the proposed rule. 

Similarly, the FDIC does not believe 

it is necessary to amend the proposed 

rule to further define the phrase ‘‘known 

IAP’’ as it is used in proposed § 328.104. 

The FDIC interprets this phrase to mean 

any person who is actually known to the 


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Federal Register / Vol. 87, No. 106 / Thursday, June 2, 2022 / Rules and Regulations 33417 

12As noted in the NPR, the standards governing 

this rule were adapted in part from those applicable 

to deception under Section 5 of the Federal Trade 

Commission Act, 5 U.S.C. 45 (Section 5). The FDIC 

recognizes that, in some but not all cases, Section 

18(a)(4)’s prohibitions only apply to ‘‘knowing’’ 

misrepresentations, while Section 5 more broadly 

prohibits any material misrepresentations in 

commerce without regard to the advertising party’s 

intent or knowledge. Regardless of any difference 

this presents, the FDIC believes that Section 5, 

which prohibits unfair or deceptive acts or practices 

in commerce offers a valuable framework for 

evaluating misrepresentations under Section 

18(a)(4). Accordingly, the FDIC has looked to the 

standards governing deception under Section 5 to 

inform its understanding of what constitutes a 

misrepresentation that violates Section 18(a)(4). 

Similarly, the FDIC believes that Section 5 is useful 

in defining who Section 18(a)(4) protects, and 

Federal courts have concluded that the protections 

offered by Section 5 extend broadly to 

‘‘consumers,’’ including natural persons, 

businesses, and not-for profit organizations. See, 

e.g., FTC v. IFC Credit Corp., 543 F.Supp.2d 925, 

934 (N.D.Ill. 2008). The FDIC believes similarly 

broad protection is appropriate here and consistent 

with the statute. 

13For example, to the extent a misrepresentation 

about deposit insurance was made by an IDI or IAP, 

the FDIC would also be able to pursue the matter 

under section 8 of the FDI Act, 12 U.S.C. 1818, as 

well as Section 18(a)(4). 

14For example, assume an individual consumer 

had $50,000 on deposit at Bank A. If the consumer 

saw an advertisement by a non-bank entity that 

promised full FDIC deposit insurance on large 

certificates of deposit (CDs), and the consumer 

obtained a $250,000 CD from the non-bank entity, 

the consumer would not necessarily receive the full 

value of the promised deposit insurance if the nonbank entity placed the consumer’s funds at Bank A. 

Assuming these deposits, totaling $300,000, were 

held in the same capacity at Bank A, they would 

only be insured for up to $250,000. 

FDIC to be an IAP, as defined under 12 

U.S.C. 1813(u), either because the FDIC 

is aware that the person is a director, 

officer, employee or controlling 

shareholder of an IDI, or because the 

FDIC has already made a determination 

that the person is an IAP. The FDIC 

believes that this interpretation is 

consistent with the plain language of the 

phrase ‘‘known IAP.’’ 

Based upon the comments received, 

the FDIC recognizes the need to define 

a single term to describe those that may 

be adversely impacted by violations of 

Section 18(a)(4). To provide 

clarification, the FDIC has added a 

defined term, ‘‘Consumer,’’ to include 

all current or potential depositors, 

including natural persons, 

organizations, corporate entities, and 

governmental bodies.12

With regard to the suggestion that the 

FDIC implement standard disclosures 

and a ‘‘one-click’’ rule for social media 

and internet advertising, the FDIC does 

not believe it is advisable to adopt these 

suggestions in light of the pace of 

technological change in these areas. The 

FDIC believes any formats prescribed at 

this time could quickly become obsolete 

or even counterproductive as 

technology continues to evolve. 

Accordingly, the FDIC believes the 

proposed rule as currently drafted, 

which sets forth standard-based 

requirements as opposed to prescribing 

specific formats, is more appropriate. 

With regard to the suggestion that the 

FDIC create a database of IAPs who have 

potentially violated the proposed rule, 

the FDIC believes that such a database 

could risk reputational harm to 

individuals who have not yet been 

found to have engaged in a violation. 

Further, to the extent the FDIC pursues 

formal enforcement action under the 

proposed rule, a public notice of charges 

or order will be issued. The FDIC 

believes that the publication of such 

notices and orders would be generally 

sufficient to provide IDIs with 

information about any individual who 

the FDIC believes has violated section 

18(a)(4) or the implementing regulation. 

With regard to the suggestion of a 

voluntary register of FDIC-insured 

products, the FDIC does not believe 

such a register would be advisable. The 

voluntary nature of such a register 

would limit its usefulness. Moreover, 

the FDIC resources that would be 

required to maintain such a register 

would likely be significant and 

outweigh any benefit it may have. 

With regard to the proposal that the 

FDIC institute an information sharing 

system with state authorities, the FDIC 

does not believe any changes to the 

proposed rule are necessary. Proposed 

§ 328.105 authorizes the FDIC to notify 

other authorities (including state 

regulators) of conduct that may fall 

within their jurisdiction. The FDIC 

recognizes the importance of working 

with other state and Federal agencies to 

address false, misleading, or otherwise 

deceptive representations regarding 

deposit insurance. Conduct that violates 

Section 18(a)(4) may also violate other 

statutory schemes, including but not 

limited to Section 5 of the Federal Trade 

Commission Act (FTC Act), 5 U.S.C. 45, 

(Section 5) and Section 1031 of the 

Dodd-Frank Act, 12 U.S.C. 5531 

(Section 1031). Indeed, other laws or 

regulations may encompass broader 

conduct than that reached by Section 

18(a)(4). For example, certain of Section 

18(a)(4)’s prohibitions apply only to 

knowing misrepresentations, while 

several other statutes prohibiting 

deception do not require that 

misrepresentations be made knowingly. 

Nothing contained in this regulation 

should be read to limit the authority of 

any state or Federal agency or 

individual under any other law, 

including but not limited to the 

Consumer Financial Protection Bureau, 

the Federal Trade Commission, the 

Federal Reserve Board of Governors, the 

U.S. Department of Justice, state 

Attorneys General, and the FDIC itself.13

Based upon the facts and 

circumstances presented in individual 

cases, the FDIC anticipates that it will 

work with other agencies to address 

misrepresentations regarding deposit 

insurance when appropriate. The FDIC 

believes the referral authority currently 

contained in § 328.105 adequately 

provides for such cooperation. However, 

to further clarify, conduct that violates 

Section 18(a)(4) may at times violate 

other statutory schemes as well. As 

such, the FDIC is adding a new 

§ 328.109 to expressly reiterate that the 

FDIC’s authority under Section 18(a)(4) 

does not bar any other action authorized 

by law, by the FDIC or any other agency. 

While this reservation of authority to 

the FDIC and other agencies and 

individuals is provided in the plain 

language of Section 18(a)(4), the FDIC 

believes it is helpful to reference it in 

the final rule to avoid any confusion on 

this point. 

Finally, in response to the suggestions 

that the FDIC require non-IDIs to make 

certain affirmative statements related to 

deposit insurance, the FDIC made 

revisions to the proposed 

§ 328.102(b)(3)(ii), discussed below. The 

FDIC is not precluded from imposing 

additional requirements to ensure 

appropriate use of its official sign and 

advertisement language if the facts and 

circumstances warrant such action. 

With respect to the comments 

regarding the language of proposed 

§ 328.102(b)(3)(ii), the FDIC’s aim in the 

proposed rule was to address situations 

in which non-bank entities were making 

unsubstantiated claims about the 

availability of deposit insurance without 

directly or indirectly identifying the 

IDIs with which these entities were 

ostensibly doing business. In such cases, 

consumers and the FDIC are unable to 

effectively evaluate the accuracy of such 

claims by non-bank entities. Moreover, 

even if the non-bank entity actually 

placed deposits at one or more IDIs, 

information identifying the IDI(s) at 

which such funds were being placed is 

vital to understanding the extent and 

manner of deposit insurance provided. 

Omission of this information could 

impact the insurability of the deposited 

funds to the consumer’s detriment.14

Commenters have pointed out that it 

may not always be possible to identify 

with specificity the IDI(s) that will 

receive funds placed through a deposit 

network until those funds are actually 


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15For example, if a customer places a deposit 

through a deposit network, the deposit network 

may be unable to tell the consumer in advance 

whether the entirety of the deposit will be placed 

at a single institution or whether it might be 

divided and placed at multiple institutions. 

16The § 328.102(b)(5) that was included in the 

NPR has likewise been redesignated as 

§ 328.102(b)(6). 

17A non-bank entity may have an indirect 

relationship with an IDI if it places deposits 

through a deposit network. 

18As an example, a non-bank entity may identify 

such IDIs by providing consumers with a link to a 

current list on its website of the IDIs with which 

it has existing business relationships for the 

placement of deposits. 

19A non-bank entity may satisfy this requirement 

by providing a link to a list it maintains. 

Alternatively, if the deposit network maintains a 

current list of IDIs with which the deposit network 

has existing business relationships on the deposit 

network sponsor’s public website, the non-bank 

entity may provide consumers with a link to such 

a list on the deposit network’s website. 

20Call Report data, June 30, 2021. 

21See FDIC 2019 Annual Report, p. 38; FDIC 2020 

Annual Report, p. 47. 

deposited at the IDI(s).15 Nonetheless, 

the FDIC continues to believe that in 

order for a non-bank entity to avoid the 

prohibition under Section 18(a)(4) 

against making misrepresentations 

about deposit insurance, a non-bank 

entity cannot advertise that its products 

are or will be FDIC-insured without 

providing consumers with sufficient 

information to adequately understand 

the extent and manner of deposit 

insurance provided. Such information 

allows consumers to verify 

representations about deposit insurance 

directly with IDIs and also allows 

consumers to avoid a situation where 

their total combined deposits at a 

particular IDI may exceed the maximum 

deposit insurance amount. Accordingly, 

the FDIC is amending proposed 

§ 328.102(b)(3)(ii) and has created a new 

§ 328.102(b)(5) to accommodate and 

address these competing concerns.16

Rather than requiring non-bank 

entities that are advertising FDICinsured deposits to identify the specific 

IDI(s) that will receive a consumer’s 

deposit, the FDIC is adopting a final rule 

that will require such non-bank entities 

to identify the IDI(s) with which the 

non-bank entities have existing direct or 

indirect business relationships and into 

which consumers’ deposits may be 

placed.17 The use of the word ‘‘may’’ 

does not allow non-bank entities to 

satisfy this requirement by merely 

identifying IDIs with which such nonbank entities might one day do business. 

The final rule provides that such nonbank entities must identify the IDIs with 

which such an entity has an existing 

direct or indirect business relationship 

for the placement of deposits and into 

which consumers’ deposits may be 

placed.18 To the extent that a non-bank 

entity places deposits through a deposit 

network, it may satisfy this requirement 

by identifying the deposit network and 

each IDI in the deposit network or by 

providing a hyperlink to a current list of 

all the IDIs that are part of such a 

network.19 The FDIC believes that the 

final rule provides sufficient flexibility 

for non-bank entities, which as a result 

of relationships with deposit network 

sponsors may not be able to directly 

identify the IDI(s) that will receive 

consumers’ deposits, while still 

providing consumers with access to 

adequate information about the extent 

and manner of deposit insurance 

provided. 

With respect to comments requesting 

clarification relating to advertisements 

for hybrid products, the FDIC does not 

believe that any change to the proposed 

rule is necessary. The proposed rule 

prohibits misrepresentations about 

deposit insurance in advertising related 

to hybrid products. The proposed rule 

adopts the definition of hybrid products 

contained in subpart A, and its 

prohibitions related to advertising of 

hybrid products are consistent with the 

requirements of subpart A. To the extent 

that there are any future amendments to 

subpart A that impact the proposed 

rule’s provisions related to hybrid 

products, the FDIC will address them at 

that time. 

IV. The Final Rule 

For the reasons stated above, the final 

rule adopts the proposed rule with 

certain limited changes. The FDIC is 

amending § 328.101 to add a definition 

for the term ‘‘Consumer,’’ to identify 

those intended to be protected under the 

regulation. The FDIC is also amending 

§ 328.102(b)(3)(ii), adding a new 

§ 328.102(b)(5), and redesignating 

§ 328.102(b)(5) as § 328.102(b)(6) in 

order to clarify how marketing related to 

deposit networks can comply with the 

regulation. 

Additionally, the FDIC is adding a 

new § 328.109 to make clear that, in 

accordance with the plain language of 

Section 18(a), the existence of the 

FDIC’s authority to pursue enforcement 

actions under this subpart does not 

impact the authority of any other state 

or Federal agency or individual to 

pursue any other action authorized by 

any law. The FDIC is also making a 

minor, technical amendment to 

§ 328.107 to provide clarity regarding 

the General Counsel’s delegated 

authority to initiate and prosecute 

formal enforcement actions under the 

final rule. 

Finally, the FDIC is redesignating the 

existing regulations in part 328 as 

subpart A to part 328, entitled 

‘‘Advertisement of Membership,’’ and is 

establishing a new subpart B to part 328, 

entitled ‘‘False Advertising, 

Misrepresentation of Insured Status, and 

Misuse of the FDIC’s Name or Logo’’ 

containing the new regulations 

described herein. Finally, the FDIC is 

making technical amendments to 

§ 328.3, limiting the applicability of 

definitions in that section to subpart A 

of part 328, and not to part 328, 

generally. 

V. Expected Effects 

The final rule will primarily affect 

non-bank entities and individuals who 

are potentially misusing the FDIC’s 

name or logo or are making 

misrepresentations about deposit 

insurance. The FDIC currently insures 

4,960 depository institutions 20 that 

could also be affected; however in 

practice, the final rule will primarily 

affect non-bank entities and private 

individuals. Since the adoption of 

Section 18(a)(4) in 2008, the FDIC has 

issued only one formal enforcement 

order against a non-bank entity for 

misuse of the FDIC’s name or logo or for 

misrepresentations or false advertising 

in relation to deposit insurance. 

However, between January 1, 2019, and 

December 31, 2020, the FDIC reached 

informal resolutions regarding the 

potential misuse of the FDIC’s name or 

logo and/or misrepresentations relation 

to deposit insurance in at least 165 

instances.21 Based on this experience, 

the FDIC estimates that the final rule 

will apply to relatively few formal 

enforcement actions and conservatively 

estimates that it will affect fewer than 

165 informal resolutions with non-bank 

entities and individuals each year. 

As discussed previously, the final rule 

will clarify the FDIC’s procedures for 

evaluating potential violations of 

Section 18(a)(4). The final rule will 

generally be consistent with existing 

practices used by the FDIC with respect 

to these matters. Further the rule will 

not affect the application of related 

criminal prohibitions under 18 U.S.C. 

709. Therefore, the FDIC believes that 

the final rule is unlikely to have any 

significant effect on formal and informal 

enforcement of the Section 18(a)(4) 

prohibitions. 

The final rule could pose some 

indirect disclosure costs on nondepository entities. The rule’s 

description of ‘‘material omission’’ 

provides that a statement that a product 

is insured or guaranteed by the FDIC 

violates the rule if non-depository 

entities who make representations about 


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22 5 U.S.C. 601, et seq. 

23The SBA defines a small banking organization 

as having $750 million or less in assets, where ‘‘a 

financial institution’s assets are determined by 

averaging the assets reported on its four quarterly 

financial statements for the preceding year.’’ See 13 

CFR 121.201 (as amended by 87 FR18627, effective 

May 2, 2022). ‘‘SBA counts the receipts, employees, 

or other measure of size of the concern whose size 

is at issue and all of its domestic and foreign 

affiliates.’’ See 13 CFR 121.103. Following these 

regulations, the FDIC uses a covered entity’s 

affiliated and acquired assets, averaged over the 

preceding four quarters, to determine whether the 

FDIC-supervised institution is ‘‘small’’ for the 

purposes of RFA. 

24FDIC Call Report data, June 30, 2021. 

25How to Comply with the Regulatory Flexibility 

Act, August 2017, The U.S. Small Business 

Administration, Office of Advocacy, https://

cdn.advocacy.sba.gov/wp-content/uploads/2019/ 

06/21110349/How-to-Comply-with-the-RFA.pdf. 

26 4 U.S.C. 3501–3521. 

deposit insurance fail to directly or 

indirectly identify the IDIs into which 

consumers’ deposits may be placed. As 

described above, a non-bank entity may 

comply with this provision by publicly 

disclosing the name(s) of all IDI(s) with 

which the entity has existing direct or 

indirect business relationships for the 

placement of deposits and into which 

consumers’ deposits may be placed. If 

the non-bank entity places deposits 

through a deposit network, it may 

publicly disclose the name(s) of the IDIs 

that are part of the deposit network. 

Such a list could be provided in writing 

or through a hyperlink to a website 

containing this information. Such a 

website could be maintained by the 

non-bank entity or the deposit network. 

In turn, the rule could result in deposit 

networks making publicly available lists 

of the IDIs with which they have 

existing business relationships for the 

placement of deposits, to the degree 

those entities are not already doing so. 

In either case, the FDIC believes that 

any such costs are likely to be relatively 

small. 

The FDIC believes that the final rule 

will benefit FDIC-insured institutions 

and members of the public by further 

clarifying what constitutes a violation of 

Section 18(a)(4), by creating a process 

by which institutions and members of 

the public can report suspected 

instances of false advertising, misuse, or 

misrepresentation regarding deposit 

insurance, and by establishing clear 

procedures by which the FDIC will 

investigate and, where necessary, 

formally and informally resolve 

potential violations of Section 18(a)(4). 

Specifically, the added transparency on 

the FDIC’s processes for investigating 

potential instances of misuse or 

misrepresentation and, if needed, 

resolution are expected to benefit the 

parties involved by establishing a 

common understanding of those 

processes. 

VI. Alternatives 

The FDIC has considered alternatives 

to the rule but believes that adopting 

subpart B to part 328 represents the 

most appropriate option. As discussed 

previously, Section 18(a)(4) establishes 

prohibitions against the misuse of the 

FDIC’s name or logo and prohibits 

misrepresentations and false advertising 

in relation to deposit insurance. The 

FDIC considered the status quo 

alternative of not adopting a regulation. 

However, the FDIC believes that the 

final rule is the most appropriate action 

because it provides clarity for the public 

regarding what constitutes misuse of 

FDIC name or logo or misrepresentation 

with respect to FDIC insurance, how the 

FDIC will identify and investigate 

suspected instances of misuse or 

misrepresentation, and the process by 

which the FDIC will pursue formal or 

informal resolution of instances of 

misuse or misrepresentation. 

VII. Administrative Law Matters 

A. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

requires that, in connection with a 

notice of final rulemaking, an agency 

prepare and make available for public 

comment a final regulatory flexibility 

analysis that describes the impact of the 

final rule on small entities.22 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 $750 million.23

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 FDICsupervised institutions. For the reasons 

provided below, the FDIC certifies that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities. Accordingly, a 

regulatory flexibility analysis is not 

required. 

As of June 30, 2021, the FDIC insured 

4,960 depository institutions, of which 

3,374 are considered small banking 

organizations for the purposes of RFA.24

Potential instances of misuse of the 

FDIC name or logo, or 

misrepresentations about deposit 

insurance, by IDIs are usually addressed 

under the normal supervisory authority 

of the appropriate Federal financial 

regulator; therefore although the final 

rule could affect IDIs, in practice the 

rule would primarily affect non-bank 

entities and private individuals. Private 

individuals are not considered ‘‘small 

entities’’ under the RFA.25

Based on the information above, the 

FDIC certifies that the rule would not 

have a significant economic impact on 

a substantial number of small entities. 

B. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(PRA) states that no agency may 

conduct or sponsor, nor is the 

respondent required to respond to, an 

information collection unless it displays 

a currently valid Office of Management 

and Budget (OMB) control number.26

The FDIC’s OMB control number for its 

‘‘Customer Assistance Forms’’ 

information collection is 3064–0134. 

The final rule does not revise this 

existing information collection pursuant 

to the PRA and consequently, no 

submission in connection with this 

OMB control number will be made to 

the OMB for review. However, 

§ 328.102(b)(5) of the final rule imposes 

third-party disclosure requirements 

which will be addressed in a separate 

Federal Register document. In 

particular, § 328.102(b)(5) of the final 

rule imposes disclosure requirements 

for non-bank entities that make certain 

types of statements regarding deposit 

insurance. Under the PRA, no person 

shall be subject to penalty for failing to 

comply with a collection of information 

if the collection of information is not 

approved by the OMB. Consequently, 

the FDIC will not subject anyone to 

penalties for violations of 

§ 328.102(b)(5) related to such thirdparty disclosures until the information 

collection request is approved by the 

OMB. 

C. Plain Language 

Section 722 of the Gramm-LeachBliley Act 48 requires the Federal 

banking agencies to use plain language 

in all proposed and final rulemakings 

published in the Federal Register after 

January 1, 2000. The FDIC invited 

comment regarding the use of plain 

language, but did not receive any 

comments on this topic. 

D. The Congressional Review Act 

For purposes of Congressional Review 

Act, the OMB makes a determination as 

to whether a final rule constitutes a 


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27 12 U.S.C. 4802(a). 

28 Id. 

‘‘major’’ rule. If a rule is deemed a 

‘‘major rule’’ by the OMB, the 

Congressional Review Act generally 

provides that the rule may not take 

effect until at least 60 days following its 

publication. The Congressional Review 

Act defines a ‘‘major rule’’ as any rule 

that the Administrator of the Office of 

Information and Regulatory Affairs of 

the OMB finds has resulted in or is 

likely to result in—(A) an annual effect 

on the economy of $100,000,000 or 

more; (B) a major increase in costs or 

prices for consumers, individual 

industries, Federal, State, or Local 

government agencies or geographic 

regions, or (C) significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. The OMB has 

determined that the final rule is not a 

major rule for purposes of the 

Congressional Review Act. 

As required by the Congressional 

Review Act, the FDIC will submit the 

final rule and other appropriate reports 

to Congress and the Government 

Accountability Office for review. 

E. Riegle Community Development and 

Regulatory Improvement Act of 1994 

Pursuant to section 302(a) of the 

Riegle Community Development and 

Regulatory Improvement Act 

(RCDRIA),27 in determining the effective 

date and administrative compliance 

requirements for new regulations that 

impose additional reporting, disclosure, 

or other requirements on insured 

depository institutions (IDIs), each 

Federal banking agency must consider, 

consistent with principles of safety and 

soundness and the public interest, any 

administrative burdens that such 

regulations would place on depository 

institutions, including small depository 

institutions, and customers of 

depository institutions, as well as the 

benefits of such regulations. In addition, 

section 302(b) of RCDRIA requires new 

regulations and amendments to 

regulations that impose additional 

reporting, disclosures, or other new 

requirements on IDIs generally to take 

effect on the first day of a calendar 

quarter that begins on or after the date 

on which the regulations are published 

in final form.28 The FDIC has 

determined that the final rule would not 

impose any additional reporting, 

disclosure, or other new requirements 

on IDIs, and thus the requirements of 

the RCDRIA do not apply. 

List of Subjects in 12 CFR Part 328 

Advertising, Bank deposit insurance, 

Savings associations, Signs and 

symbols. 

Authority and Issuance 

For the reasons stated in the 

preamble, the Federal Deposit Insurance 

Corporation amends 12 CFR part 328 as 

follows: 

PART 328—ADVERTISEMENT OF 

MEMBERSHIP, FALSE ADVERTISING, 

MISREPRESENTATION OF INSURED 

STATUS, AND MISUSE OF THE FDIC’S 

NAME OR LOGO 

■ 1. Revise the authority citation for part 

328 to read as follows: 

Authority: 12 U.S.C. 1818, 1819 (Tenth), 

1820(c), 1828(a). 

■ 2. Revise the heading for part 328 to 

read as set forth above. 

■ 3. Designate §§ 328.0 through 328.4 as 

subpart A and add a heading for subpart 

A to read as follows: 

Subpart A—Advertisement of 

Membership 

■ 4. Amend § 328.3 by revising 

paragraphs (a) and (e)(1)(i) and (ii) to 

read as follows: 

§ 328.3 Official advertising statement 

requirements. 

(a) Advertisement defined. The term 

‘‘advertisement,’’ as used in this 

subpart, shall mean a commercial 

message, in any medium, that is 

designed to attract public attention or 

patronage to a product or business. 

* * * * * 

(e) * * * 

(1) * * * 

(i) Non-deposit product. As used in 

this subpart, the term ‘‘non-deposit 

product’’ shall include, but is not 

limited to, insurance products, 

annuities, mutual funds, and securities. 

For purposes of this definition, a credit 

product is not a non-deposit product. 

(ii) Hybrid product. As used in this 

subpart, the term ‘‘hybrid product’’ shall 

mean a product or service that has both 

deposit product features and nondeposit product features. A sweep 

account is an example of a hybrid 

product. 

* * * * * 

§§ 328.5 through 328.99 [Reserved] 

■ 5. Add reserved §§ 328.5 through 

328.99. 

■ 6. Add subpart B to read as follows: 

Subpart B—False Advertising, 

Misrepresentation of Insured Status, and 

Misuse of the FDIC’s Name or Logo 

Sec. 

328.100 Scope. 

328.101 Definitions. 

328.102 Prohibition. 

328.103 Inquiries and complaints. 

328.104 Investigations of potential 

violations. 

328.105 Referral to appropriate authority. 

328.106 Informal resolution. 

328.107 Formal enforcement actions. 

328.108 Appeals process. 

328.109 Other actions preserved. 

Subpart B—False Advertising, 

Misrepresentation of Insured Status, 

and Misuse of the FDIC’s Name or 

Logo 

§ 328.100 Scope. 

This subpart applies to any person 

who: 

(a) Falsely represents, expressly or by 

implication, that any deposit liability, 

obligation, certificate, or share is FDICinsured by using the FDIC’s name or 

logo; 

(b) Knowingly misrepresents, 

expressly or by implication, that any 

deposit liability, obligation, certificate, 

or share is insured by the FDIC if such 

an item is not so insured; 

(c) Knowingly misrepresents, 

expressly or by implication, the extent 

to which or the manner in which any 

deposit liability, obligation, certificate, 

or share is insured by the FDIC, if such 

an item is not insured to the extent or 

manner represented; or 

(d) Aids or abets another in any of the 

foregoing listed in paragraphs (a) 

through (c) of this section. 

§ 328.101 Definitions. 

For purposes of this subpart: 

Advertisement means a commercial 

message, in any medium, that is 

designed to attract public attention or 

patronage to a product, business, or 

service. 

Appropriate Federal Banking Agency 

has the meaning set forth in section 3(q) 

of the FDI Act (12 U.S.C. 1813(q)). 

Consumer means any current or 

potential depositor, including natural 

persons, organizations, corporate 

entities, and governmental bodies. 

FDI Act means the Federal Deposit 

Insurance Act, 12 U.S.C. 1811 et seq. 

FDIC means the Federal Deposit 

Insurance Corporation. 

FDIC-Associated Images means the 

Seal of the FDIC, alone or within the 

letter C of the term FDIC; the Official 

Sign and Symbol of the FDIC, as set 

forth in § 328.1; the Official Advertising 

Statement, as set forth in § 328.3(b); any 

similar images; and any other signs and 


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symbols that may represent or imply 

that any deposit, liability, obligation 

certificate, or share is insured or 

guaranteed in whole or in part by the 

FDIC. 

FDIC-Associated Terms means the 

abbreviation ‘‘FDIC,’’ and the following 

words or phrases: ‘‘Federal Deposit 

Insurance Corporation,’’ ‘‘Federal 

Deposit,’’ ‘‘Federal Deposit Insurance,’’ 

‘‘FDIC-insured,’’ ‘‘FDIC insurance,’’ 

‘‘insured by FDIC,’’ ‘‘member FDIC;’’ 

any similar words or phrases; or any 

other terms that may represent or imply 

that any deposit, liability, obligation 

certificate, or share is insured or 

guaranteed by the FDIC. 

Federal Banking Agency has the 

meaning set forth in section 3(z) of the 

FDI Act, 12 U.S.C. 1813(z). 

General Counsel means the General 

Counsel of the FDIC or his or her 

designee. 

Hybrid Product has the same meaning 

as set forth under § 328.3(e)(1)(ii). 

Institution-Affiliated Party (IAP) has 

the same meaning as set forth under 

section 3(u) of the FDI Act, 12 U.S.C. 

1813(u). 

Insured Deposit has the same meaning 

as set forth under section 3(m) of the 

FDI Act, 12 U.S.C. 1813(m). 

Insured Depository Institution has the 

same meaning as set forth under section 

3(c)(2) of the FDI Act, 12 U.S.C. 

1813(c)(2). 

Non-Deposit Product has the same 

meaning as set forth under 

§ 328.3(e)(1)(i). 

Person means a natural person, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency or other 

entity, association, or organization, 

including a ‘‘Regulated Institution’’ as 

defined in this section. 

Regulated Institution means any 

institution for which the FDIC, the 

Office of the Comptroller of the 

Currency, or the Board of Governors of 

the Federal Reserve System is the 

‘‘appropriate Federal banking agency’’ 

under section 3(q) of the FDI Act, 12 

U.S.C. 1813(q). 

Third-Party Publisher means any 

party that publishes, places, distributes, 

or circulates advertising or marketing 

materials, regardless of the platform or 

media used for distribution, containing 

FDIC-Associated Images, FDICAssociated Terms, or other claims 

regarding FDIC insurance or guarantees. 

Third-Party Publishers include, but are 

not limited to: Publishers and 

distributors of written, visual, or print 

advertising; broadcasters of video or 

audio advertisements; telemarketers; 

internet or web-based distributors, 

including internet service providers, 

and email marketers; and direct mail 

marketers and distributors. 

Uninsured Financial Product means 

any Non-Deposit Product, HybridProduct, investment, security, 

obligation, certificate, share, or financial 

product other than an ‘‘Insured Deposit’’ 

as defined in this section. 

§ 328.102 Prohibition. 

(a) Use of the FDIC name or logo. (1) 

No person may represent or imply that 

any Uninsured Financial Product is 

insured or guaranteed by the FDIC by 

using FDIC-Associated Terms as part of 

any business name or firm name of any 

person. 

(2) No person may represent or imply 

that any Uninsured Financial Product is 

insured or guaranteed by the FDIC by 

using FDIC-Associated Terms or by 

using FDIC-Associated Images as part of 

an Advertisement, solicitation, or other 

publication or dissemination. 

(3) This section applies, but is not 

limited, to: 

(i) An Advertisement for any 

Uninsured Financial Product that 

features or includes one or more FDICAssociated Terms or FDIC-Associated 

Images, without a clear, conspicuous, 

and prominent disclaimer that the 

products being offered are not FDIC 

insured or guaranteed. 

(ii) An Advertisement for any 

Uninsured Financial Product that may 

be backed or guaranteed by an entity 

other that the FDIC, but features or 

includes one or more FDIC-Associated 

Terms or FDIC-Associated Images, 

without a clear, conspicuous, 

prominent, and accurate explanation as 

to the actual nature and source of the 

guarantee. 

(iii) An Advertisement for any NonDeposit Product or Hybrid Product by a 

Regulated Institution that includes any 

statement or symbol which implies or 

suggests the existence of deposit 

insurance relating to the Non-Deposit 

Product or Hybrid Product. 

(iv) Publication or dissemination of 

information, regardless of the media or 

platform, that suggests or implies that 

the party making the representation is 

an FDIC-insured institution if this is not 

in fact true. 

(v) Publication or dissemination of 

information, regardless of the media or 

platform, that suggests or implies that 

the party making the representation is 

associated with an FDIC-insured 

institution if the nature of the 

association is not clearly, 

conspicuously, prominently, and 

accurately described. 

(vi) Publication or dissemination of 

information, regardless of the media or 

platform, that suggests or implies that 

the party making the representation is 

the FDIC or any office, division, or 

subdivision thereof, if this is not in fact 

true. 

(vii) Publication or dissemination of 

information, regardless of the media or 

platform, that suggests or implies that 

the party making the representation is 

associated with the FDIC or any office, 

division, or subdivision thereof, if the 

nature of the association is not clearly, 

conspicuously, prominently, and 

accurately described. 

(b) False or misleading 

representations regarding FDIC 

insurance. (1) No person may 

knowingly make false or misleading 

representations about deposit insurance, 

including: 

(i) That any deposit liability, 

obligation, certificate, or share is 

insured under this subpart if such a 

deposit is not so insured; 

(ii) The extent to which any deposit 

liability, obligation, certificate, or share 

is insured under this subpart if such 

item is not insured to the extent 

represented; or 

(iii) The manner in which any deposit 

liability, obligation, certificate, or share 

is insured under this subpart if such 

item is not insured in the manner 

represented. 

(2) For the purposes of this section, a 

statement is deemed to be a statement 

regarding deposit insurance, if it: 

(i) Includes any FDIC-Associated 

Images or FDIC-Associated Terms; 

(ii) Makes any representation, 

suggestion, or implication about the 

existence of FDIC insurance or the 

extent or manner of coverage; or 

(iii) Makes any representation, 

suggestion, or implication about the 

existence, extent, or effectiveness of any 

guarantee by FDIC in the event of 

financial distress by Insured Depository 

Institutions, whether a specific Insured 

Depository Institution or Insured 

Depository Institutions generally, 

including but not limited to bank 

failure, insolvency, or receivership of 

such institutions. 

(3) For the purposes of this section, a 

statement regarding deposit insurance 

violates this section, if: 

(i) The statement contains any 

material representations which would 

have the tendency or capacity to 

mislead a reasonable consumer, 

regardless of whether any such 

consumer was actually misled; or 

(ii) The statement omits material 

information that would be necessary to 

prevent a reasonable consumer from 

being misled, regardless of whether any 

such consumer was actually misled. 

(4) Without limitation, a false or 

misleading representation is deemed to 


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be material if it states, suggests, or 

implies that: 

(i) Uninsured Financial Products are 

insured or guaranteed by the FDIC; 

(ii) Insured Deposits (whether 

generally or at a particular Regulated 

Institution) are not insured or 

guaranteed by the FDIC; 

(iii) The amount of deposit insurance 

coverage is different (whether greater or 

less) than actually provided under the 

FDI Act; 

(iv) The circumstances under which 

deposit insurance may be paid are 

different than actually provided under 

the FDI Act; 

(v) The requirements to qualify for 

deposit insurance, or the process by 

which deposit insurance would be paid, 

are different from what is provided 

under the FDI Act and its implementing 

regulations in this chapter, including 

false or misleading claims related to 

actions required of consumers to qualify 

for or obtain such insurance; or 

(vi) Regulated Institutions may 

convert Insured Deposits into another 

form of liability that is not insured, such 

as unsecured debt or equity. 

(5) Without limitation, a statement 

regarding deposit insurance will be 

deemed to omit material information if 

the absence of such information could 

lead a reasonable consumer to believe 

any of the material misrepresentations 

set forth in paragraph (b)(4) of this 

section or could otherwise result in a 

reasonable consumer being unable to 

understand the extent or manner of 

deposit insurance provided. For 

example, if a statement is made by a 

person other than an Insured Depository 

Institution that represents or implies 

that an advertised product is insured or 

guaranteed by the FDIC, it will be 

deemed to be a material omission to fail 

to identify the Insured Depository 

Institution(s) with which the 

representing party has a direct or 

indirect business relationship for the 

placement of deposits and into which 

the consumer’s deposits may be placed. 

(6) Without limitation, a 

representation is deemed to have been 

knowingly made if the person making 

the representation: 

(i) Has made false or misleading 

representations regarding deposit 

insurance; 

(ii) Has been advised by the FDIC in 

an advisory letter, as provided in 

§ 328.106(a), or has been advised by 

another governmental or regulatory 

authority, including, but not limited to, 

another Federal banking agency, the 

Federal Trade Commission, the U.S. 

Department of Justice, or a state bank 

supervisor, that such representations are 

false or misleading; and 

(iii) Thereafter, continues to make 

these, or substantially-similar, 

representations. 

§ 328.103 Inquiries and complaints. 

Should any person have reason to 

believe that anyone is or may be acting 

in violation of section 18(a) of the FDI 

Act (12 U.S.C. 1828(a)) or this subpart, 

or have questions regarding the 

accuracy of deposit-related 

representations, such individuals may 

contact the FDIC at the FDIC 

Information and Support Center, http:// 

ask.fdic.gov/ 

fdicinformationandsupportcenter/s/, or 

by telephone at 1–877–275–3342 (1– 

877–ASK–FDIC). 

§ 328.104 Investigations of potential 

violations. 

(a) The General Counsel has delegated 

authority to investigate potential 

violations of section 18(a) of the FDI Act 

(12 U.S.C. 1828(a)) and this subpart. 

(b) Such investigations will be 

conducted as prescribed under section 

10(c) of the FDI Act (12 U.S.C. 1820(c)) 

and subpart K of part 308 of this chapter 

(12 CFR 308.144 through 308.150). 

Notwithstanding the general 

confidentiality provisions of 12 CFR 

308.147, in cases that may pose a risk 

of imminent harm to consumers, the 

FDIC may disclose or confirm the 

existence of an investigation that does 

not involve an Insured Depository 

Institution or a known IAP thereof. Such 

disclosure must not disclose any 

information obtained or uncovered 

during the course of the investigation. 

§ 328.105 Referral to appropriate authority. 

(a) If, in connection with the receipt 

of an inquiry or complaint, or during the 

course of an investigation, informal 

resolution, or formal enforcement under 

this subpart: 

(1) The FDIC becomes aware of 

conduct by a Regulated Institution for 

which another Federal banking agency 

is the appropriate Federal banking 

agency or an Institution-Affiliated Party 

of such an institution, that appears to 

violate section 18(a) of the FDI Act (12 

U.S.C. 1828(a)), the FDIC may 

recommend that the appropriate Federal 

banking agency take appropriate 

enforcement action. If the appropriate 

Federal banking agency does not take 

the recommended action within 30 

days, the FDIC may pursue any and all 

remedies available under section 18(a) 

or the FDI Act (12 U.S.C. 1828(a)) and 

this subpart; 

(2) The FDIC becomes aware of 

conduct that the FDIC has reason to 

believe violates a civil law or 

regulations within the jurisdiction of 

another regulatory authority, the FDIC 

may take steps to notify the appropriate 

authority; and 

(3) The FDIC becomes aware of 

conduct that the FDIC has reason to 

believe violates 18 U.S.C. 709, the FDIC 

may notify FDIC’s Office of Inspector 

General for referral to the appropriate 

criminal law enforcement authority. 

(b) To the extent that any records are 

provided to a regulatory or criminal law 

enforcement authority, as set forth in 

paragraph (a) of this section, the 

provision of such records will be made 

in accordance with the requirements of 

part 309 of this chapter. Where such 

records were obtained during the course 

of an investigation, informal resolution, 

or formal enforcement action, the 

General Counsel will be considered the 

Director of the FDIC’s Division having 

primary authority over records so 

obtained. 

§ 328.106 Informal resolution. 

(a) If the FDIC has reason to believe 

that any person may be misusing an 

FDIC-Associated Image or FDICAssociated Term or otherwise violating 

§ 328.102(a), or may be making false or 

misleading representations regarding 

deposit insurance in violation of 

§ 328.102(b), the FDIC may issue an 

advisory letter to such a person and/or 

any person who aids or abets another in 

such conduct, including any ThirdParty Publisher. Generally, such an 

advisory letter will: 

(1) Alert the recipient of advisory 

letter of the basis for the FDIC’s 

concerns; 

(2) Request that the person and/or 

Third-Party Publisher: 

(i) Take reasonable steps to prevent 

any violations of section 18(a) of the FDI 

Act (12 U.S.C. 1828(a)) and this subpart; 

(ii) Commit in writing to refrain from 

such violations in the future; and 

(iii) Notify the FDIC in writing that 

the identified concerns have been fully 

addressed and remediated; and 

(2) Offer the person or Third-Party 

Publisher the opportunity to provide 

additional information, documentation, 

or justifications to substantiate the 

representations made or otherwise 

refute the FDIC’s expressed concerns. 

(b) Except in cases where the FDIC 

has reason to believe that consumers or 

Insured Depository Institutions may 

suffer harm arising from continued 

violations, recipients of advisory letters 

described in paragraph (a) of this 

section will be provided not less than 

fifteen (15) days to provide the 

requested commitment, explanation, or 

justification. 

(c) Where a recipient of an advisory 

letter described in paragraph (a) of this 


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section provides the FDIC with the 

requested written commitments within 

the timeframe specified in the letter, 

and where any required remediation has 

been verified by FDIC staff, the FDIC 

will generally take no further 

administrative enforcement against such 

a party under § 328.107. 

(d) Where a recipient of an advisory 

letter described in paragraph (a) of this 

section fails to respond to the letter, 

fails to make the requested 

commitments, or fails to provide 

additional information, documentation, 

or justifications that the FDIC, in its 

discretion, finds adequate to 

substantiate the representations made or 

otherwise refute the concerns set forth 

in the advisory letter, the FDIC may 

pursue all remedies set forth in this 

subpart. 

(e) Nothing in this section will 

prevent the FDIC from commencing a 

formal enforcement action under 

§ 328.107 at any time before or after the 

issuance of an advisory letter under this 

section if: 

(1) The FDIC has reason to believe 

that consumers or Insured Depository 

Institutions may suffer harm arising 

from continued violations; or 

(2) The person to whom such an 

advisory letter would be sent has 

previously received a similar advisory 

letter from the FDIC under paragraph (a) 

of this section. 

§ 328.107 Formal enforcement actions. 

(a) Enforcement authority. For the 

purpose of enforcing the requirements 

of section 18(a)(4) of the FDI Act (12 

U.S.C. 1818(a)(4)) and this subpart, the 

General Counsel has delegated authority 

to bring administrative enforcement 

actions against any person under 

sections 8(b), (c), (d), and (i) of the FDI 

Act (12 U.S.C. 1818(b), 1818(c), 1818(d), 

and 1818(i)). In the case of conduct by 

a Regulated Institution for which 

another Federal banking agency is the 

appropriate Federal banking agency or 

an institution-affiliated party of such an 

institution, the General Counsel may not 

bring an enforcement action under this 

subpart unless the FDIC has provided 

the appropriate Federal banking agency 

with notice as set forth in 

§ 328.105(a)(1) and the appropriate 

Federal banking agency failed to take 

the recommended action. 

(b) Venue. Unless the person who is 

the subject of the enforcement action 

consents to a different location, the 

venue for an administrative action 

commenced under section 18(a)(4) of 

the FDI Act (12 U.S.C. 1818(a)(4)), will 

be as follows: 

(1) In a case where the person who is 

the subject of the action is an Insured 

Depository Institution or an IAP of an 

Insured Depository Institution, in the 

Federal judicial district or territory in 

which the home office of the Insured 

Depository Institution is located. 

(2) In a case where the person who is 

the subject of the action is not an 

Insured Depository Institution or an IAP 

of an Insured Depository Institution, the 

Federal judicial district or territory 

where the person who is the subject of 

the action resides, if the subject resides 

in the United States. If the subject of the 

action does not reside in the United 

States, the venue will be where the 

subject of the action conducts business 

or the Federal judicial district for the 

District of Columbia. 

(3) For the purposes of paragraph 

(b)(1) of this section, a natural person is 

deemed to reside in the Federal judicial 

district where the natural person is 

domiciled. A person other than a 

natural person is deemed to reside in 

the Federal judicial district where it is 

headquartered or has its principal place 

of business. 

(c) Rules of practice and procedure. 

All actions brought and maintained 

under this section will be subject to the 

FDIC’s Rules of Practice and Procedure 

in subparts A through C of part 308 of 

this chapter (12 CFR 308.1 through 

308.109). 

§ 328.108 Appeals process. 

(a) A person who is the subject of a 

final order issued after an 

administrative action commenced 

pursuant to this subpart may obtain 

judicial review of such order in 

accordance with the procedures set 

forth in section 8(h)(2) of the FDI Act 

(12 U.S.C. 1818(h)(2)). 

(b) Petitions for review under this 

section may be filed in the court of 

appeals for the circuit where the hearing 

was held or the United States Court of 

Appeals for the District of Columbia 

Circuit. 

§ 328.109 Other actions preserved. 

No provision of this subpart shall be 

construed as barring any action 

otherwise available, under the laws or 

regulations of the United States or any 

state, to any Federal or state agency or 

person. 

Federal Deposit Insurance Corporation. 

By order of the Board of Directors. 

Dated at Washington, DC, on May 17, 2022. 

James P. Sheesley, 

Assistant Executive Secretary. 

[FR Doc. 2022–10903 Filed 6–1–22; 8:45 am] 

BILLING CODE 6714–01–P 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1240 

RIN 2590–AB18 

Enterprise Regulatory Capital 

Framework—Public Disclosures for the 

Standardized Approach 

AGENCY: Federal Housing Finance 

Agency. 

ACTION: Final rule. 

SUMMARY: The Federal Housing Finance 

Agency (FHFA or the Agency) is 

adopting a final rule (final rule) that 

amends the Enterprise Regulatory 

Capital Framework (ERCF) by 

introducing new public disclosure 

requirements for the Federal National 

Mortgage Association (Fannie Mae) and 

the Federal Home Loan Mortgage 

Corporation (Freddie Mac, and with 

Fannie Mae, each an Enterprise). The 

requirements include quantitative and 

qualitative disclosures related to risk 

management, corporate governance, 

capital structure, and capital 

requirements and buffers under the 

standardized approach. 

DATES: This rule is effective August 1, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Varrieur, Senior Associate 

Director, Office of Capital Policy, (202) 

649–3141, Andrew.Varrieur@fhfa.gov; 

Christopher Vincent, Senior Financial 

Analyst, Office of Capital Policy, (202) 

649–3685, Christopher.Vincent@

fhfa.gov; or James Jordan, Associate 

General Counsel, Office of General 

Counsel, (202) 649–3075, 

James.Jordan@fhfa.gov (these are not 

toll-free numbers); Federal Housing 

Finance Agency, 400 7th Street SW, 

Washington, DC 20219. For TTY/TRS 

users with hearing and speech 

disabilities, dial 711 and ask to be 

connected to any of the contact numbers 

above. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. Overview of the Final Rule 

III. General Overview of Comments on the 

Proposed Rule 

IV. Public Disclosure Requirements 

A. General Requirements 

B. Standardized Approach 

C. Market Risk 

V. Frequency of Disclosures 

VI. Compliance Dates 

VII. Location of Disclosures and Audit 

Requirements 

VIII. Proprietary and Confidential 

Information 

IX. Paperwork Reduction Act 

X. Regulatory Flexibility Act 


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