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Federal Register / Vol. 86, No. 21 / Wednesday, February 3, 2021 / Rules and Regulations subordinate organizations of State savings associations.
On October 15, 2020, the FDIC
published a notice of proposed rulemaking NPR or proposal regarding the removal of subpart F, which concerns the FDICs procedures for processing applications, notices or filings under part 390 and, prior to its rescission, part 391 for State savings associations.14 The NPR proposed removing subpart F from the Code of Federal Regulations CFR because, after careful review and consideration, the FDIC believed the provisions contained in subpart F to be unnecessary in light of the applicability of other provisions of Federal statutes and regulations, specifically 12 CFR part 303 part 303
or guidance that produce substantially the same supervisory results. The FDIC
received no comments on those aspects of the proposal.
Rather than restate the rationale for rescission and removal of each section of subpart F, the reader is referred to the explanations for rescission and removal provided in the NPR,15 which the FDIC
references here as the basis for finalizing the regulations as proposed. In the NPR
the FDIC also proposed to amend certain sections of part 303, subparts A, K, and M, of the FDICs regulations.
Those amendments are discussed below.

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B. Revision of Certain Sections of Part 303, Filing Procedures Part 303 of the FDIC Rules and Regulations 12 CFR part 303 provides a framework for filing requirements for various applications, notices, and requests collectively, filings as defined in 303.2s 12 CFR 303.2s.
Subpart A of part 303, Rules of General Applicability, prescribes the general procedures for submitting filings to the FDIC that are required by statute or regulation. This subpart also prescribes the procedures to be followed by the FDIC, applicants, and interested parties during the process of considering a filing, including public notices and comment when required. This subpart explains the availability of expedited processing for eligible depository institutions defined in 303.2r for matters subject to expedited processing.
Specific filings are detailed in subpart B
through subpart M of part 303.
The FDIC is making technical changes in certain sections of part 303, subparts A, K, and M. The revisions make those sections applicable on their terms to State savings associations.
14 85

FR 65270 Oct. 15, 2020.

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1. Section 303.7Public Notice Requirements
The FDIC received no comments on these aspects of the proposal.

Section 5 of the FDI Act,16 generally and in part, provides that any depository institution engaged in the business of receiving deposits other than trust funds, upon application to and examination by the FDIC and approval by its Board of Directors, may become an insured depository institution. The term depository institution means any bank or savings association pursuant to section 3c1 of the FDI Act.17 Subpart BDeposit Insurance, of part 303 of the FDIC
regulations, sets forth the procedures for applying for deposit insurance by certain applicants, including for a proposed depository institution under section 5 of the FDI Act, and applies to savings associations.18 Section 303.23a of subpart B states that, in addition to other requirements, the applicant shall publish a notice as prescribed in 303.7
in a newspaper of general circulation in the community in which the main office of the depository institution is or will be located.
Subpart F of part 390 of the FDIC
regulations addresses public notice requirements, stating that 390.111
through 390.115 apply whenever a FDIC
regulation requires an applicant to follow the public notice procedures.19
The FDIC is rescinding 390.111
through 390.115 because part 303
substantively addresses the same requirements, including, for deposit insurance applications, 303.7, subpart A, and 303.23, subpart B.
Section 303.7 of the FDIC regulations, of part 303, subpart A, addresses public notice requirements for filings with respect to mergers, changes in control, and requests for deposit insurance. With one exception, 303.7 makes no distinction between banks and savings associations. However, 303.7c1i states, in part: in the case of an application for deposit insurance for a de novo bank emphasis added, include the names of all organizers or incorporators. The NPR proposed to amend 303.7c1i to replace bank with depository institution, a term used elsewhere in the section. The revision would clarify that 303.7c1i is applicable to savings associations, consistent with section 5
of the FDI Act and part 303, including subpart BDeposit Insurance, and would make the requirement consistent for both types of depository institutions.

2. Section 303.15Certain Limited Liability Companies Deemed Incorporated Under State Law Pursuant to section 5 of the FDI Act, the FDIC may approve deposit insurance for certain depository institutions. One of the statutory requirements for a State bank to be eligible for Federal deposit insurance is that it must be incorporated under the laws of any State. 20 That requirement effectively limited the approval of deposit insurance to State banks chartered under the traditional corporate form, despite the creation and increased use of limited liability entities other than corporations, such as limited liability companies LLCs. Section 303.15 of the FDIC regulations is found in part 303, subpart A. Section 303.15a was promulgated to provide that a bank chartered as an LLC under State law would be deemed incorporated if it met four requirements, thus permitting the entity to be eligible to apply and be approved for deposit insurance.21 To be deemed incorporated, the LLC must possesses the four traditional corporate characteristics of perpetual succession, centralized management, limited liability, and free transferability of interests.22
Section 303.15b further provides that, for purposes of the FDI Act and the FDIC regulations, the terms stockholder, shareholder, director, officer, voting stock, voting shares, and voting securities, for banks chartered as LLCs, shall encompass or have substantially the same meaning as those terms have for banks chartered as corporations. The definition of State savings association under the FDI Act, which uses the phrase organized and operating according to the laws of the State instead of incorporated, does not limit State savings associations to the corporate charter form absent a state requirement.23 In order to clarify that the terms in 303.15b apply to savings association chartered as LLCs as they do for banks so chartered, the NPR
proposed to revise references to bank in 303.15b to depository institution. The revisions would make the terms stockholder, shareholder, director, officer, voting stock, voting shares, and voting securities, with respect to savings associations 20 12

U.S.C. 1813a2.
68 FR 7308, February 13, 2003.
22 12 CFR 303.15a1 through 4. See also, 68 FR
7308.
23 12 U.S.C. 1813b3.

16 12

U.S.C. 1815.
17 12 U.S.C. 1813c1.
18 12 CFR 303.20.
19 12 CFR 390.111.

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