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Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Proposed Rules Estimated number of responses
Type of burden
Frequency of response
Number of responses per year
Estimated burden
Schedule 14D1 Schedule TO
Part 335, Subpart ASecurities Disclosure.

Reporting
Disclosure

2
376

5
114

On Occasion
On Occasion

1
1

10
42,864

Totals

535

54,410

Comments are invited on: a Whether the collection of information is necessary for the proper performance of the FDICs 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 2023955806, Attention, Federal Banking Agency Desk Officer.
B. The Regulatory Flexibility Act
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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
82 5

U.S.C. 601, et seq.

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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
83 The SBA defines a small banking organization as having $600 million or less in assets, where an organizations 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 entitys affiliated and acquired assets, averaged over the preceding four quarters, to determine whether the covered entity is small for the purposes of RFA.
84 Call Report data, June 30, 2020. The SBA
defines a small banking organization as having $600
million or less in assets, where an organizations 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
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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 FDICs experience has been that FDICsupervised institutions are either required to follow SEC disclosure domestic and foreign affiliates. See 13 CFR
121.103. Following these regulations, the FDIC uses a covered entitys affiliated and acquired assets, averaged over the preceding four quarters, to determine whether the covered entity is small for the purposes of RFA.
85 Call Report data for the quarter ending December 31 in 20152019.
86 Call Report data, June 30, 2020.

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