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

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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 FDICs 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 FDICs 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
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. 35013521.
78 FDIC Call Reports, June 30, 2020.
79 The SBA defines a small banking organization as having $600 million or less in assets, where an
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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?

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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
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
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.

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 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.
80 The proposed rule would not apply to offering documents issued by an FDIC-supervised institutions holding company.

VI. Regulatory Analysis and Procedure
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