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Federal Register / Vol. 86, No. 36 / Thursday, February 25, 2021 / Rules and Regulations
be corrected beginning with the second quarterly assessment period of 2021.
V. Administrative Law Matters A. Administrative Procedure Act Under the Administrative Procedure Act APA,39 the required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except as otherwise provided by the agency for good cause found and published with the rule. 40
An effective date of April 1, 2021
would mean that the temporary effects of the double counting of the applicable portions of the CECL transitional amounts in select financial measures used in the scorecard approach for determining assessments for large or highly complex banks are corrected, beginning with the second quarterly assessment period of 2021 i.e., April 1
June 30, 2021, with a payment due date of September 30, 2021.
B. Regulatory Flexibility Act The Regulatory Flexibility Act RFA, 5 U.S.C. 601 et seq., generally requires an agency, in connection with a final rule, to prepare and make available for public comment a final regulatory flexibility analysis that describes the impact of a final rule on small entities.41
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.
The U.S. Small Business Administration SBA has defined small entities to include banking organizations with total assets of less than or equal to $600
million.42 Certain types of rules, such as rules of particular applicability relating to rates, corporate or financial structures, or practices relating to such rates or structures, are expressly excluded from the definition of rule for purposes of the RFA.43 Because the final rule relates directly to the rates imposed on IDIs for deposit insurance and to the deposit insurance assessment 39 5

U.S.C. 553.
U.S.C. 553d.
41 5 U.S.C. 601 et seq.
42 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, 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. 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.
43 5 U.S.C. 601.
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system that measures risk and determines each banks assessment rate, the final rule is not subject to the RFA.
Nonetheless, the FDIC is voluntarily presenting information in this RFA
section.
Based on Call Report data as of September 30, 2020, the FDIC insures 5,042 depository institutions, of which 3,585 are defined as small entities by the terms of the RFA.44 The final rule, however, only applies to institutions with $10 billion or greater in total assets. Consequently, small entities for purposes of the RFA will experience no economic impact as a result of the implementation of this final rule.
C. Riegle Community Development and Regulatory Improvement Act of 1994
Section 302a of the Riegle Community Development and Regulatory Improvement Act RCDRIA
requires that the Federal banking agencies, including the FDIC, in determining the effective date and administrative compliance requirements of new regulations that impose additional reporting, disclosure, or other requirements on IDIs, 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 302b 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, with certain exceptions, including for good cause.45
The amendments to the FDICs deposit insurance assessment regulations under this final rule do impose additional reporting, disclosures, or other new requirements.
As discussed above, the FDIC is making temporary changes to the FFIEC 031 and FFIEC 041 Call Report forms and instructions to implement the amendments to the assessment system to remove the double counting under 44 FDIC

Call Report data, September 30, 2020.
U.S.C. 553bB.
45 U.S.C. 553d.
45 U.S.C. 601 et seq.
45 U.S.C. 801 et seq.
45 U.S.C. 801a3.
45 U.S.C. 8042.
45 U.S.C. 8082.
45 12 U.S.C. 4802a.
45 12 U.S.C. 4802b.
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the final rule. These changes are being effectuated in coordination with the other member entities of the FFIEC. As such, the FDIC considered the requirements of the RCDRIA and are finalizing this rule with an effective date of April 1, 2021. The FDIC invited comments regarding the application of RCDRIA to the final rule, but did not receive comments on this topic.
D. 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.46
The FDICs OMB control numbers for its assessment regulations are 30640057, 30640151, and 30640179. The final rule does not revise any of these existing assessment information collections pursuant to the PRA and consequently, no submissions in connection with these OMB control numbers will be made to the OMB for review. However, the final rule affects the agencies current information collections for the Call Report FFIEC 031 and FFIEC 041, but not FFIEC 051. The agencies OMB
control numbers for the Call Reports are:
OCC OMB No. 15570081; Board OMB
No. 71000036; and FDIC OMB No.
30640052. The changes to the Call Report forms and instructions have been addressed in a separate Federal Register notice or notices.47
E. 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.
E. The Congressional Review Act For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a major rule. The OMB has determined that the final rule is not a major rule for purposes of the Congressional Review Act.
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 46 4

U.S.C. 35013521.
FR 82580 Dec. 18, 2020.
48 12 U.S.C. 4809.
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